Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 359, Mars 2011

1. 317. The complaint is contained in a communication dated 28 May 2010 from the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) on behalf of its affiliated organization, the Cambodian Tourism and Service Workers Federation (CTSWF).
2. 318. The Government supplied its observations in a communication dated 23 July 2010.
3. 319. Cambodia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 320. In its communication dated 28 May 2010, the complainant indicates that the disputed dismissals of 14 union leaders and activists arose in the context of a labour dispute between the management of the Naga World Co. Ltd and the CTSWF, following the submission by the union representatives at Naga World (Support Labour Rights of Khmer workers of Naga Resort Union) of a letter to the management requesting negotiations for the 2009 annual salary increment, on the basis of the demands of the union members.
2. 321. As to the chronology of the case, the complainant reports that the union at Naga World was formed in 2000 and is registered with the Cambodian Labour Ministry. In September 2007, the union sent an initial request to the management to negotiate a wage increment and resolve other issues. A series of negotiation meetings were conducted, but no agreement was reached on any of the issues raised by the workers.
3. 322. In October 2008, the union formally requested negotiations for salary increments for 2009 and a number of outstanding issues such as the payment of bonus and wage equality. The last negotiation was held on 17 February 2009, with no satisfactory conclusion or agreement. On 24 February 2009, union leaders conducted a meeting with union members, in which they rejected the position of the company. The union representatives immediately informed the management of this position.
4. 323. The complainant further indicates that on 26 February 2009, 14 union leaders and activists were summarily dismissed from their employment, having been forced to sign severance agreements under duress and since this time, they have been prohibited from entering the premises, which prevented them from fulfilling their duties as union leaders.
5. 324. On 7 March 2009, the union submitted a complaint to the Ministry of Labour regarding the case and the outstanding bargaining issues.
6. 325. From 19 March 2009 until 16 February 2010, the case was heard several times before the Arbitration Council and on a number of occasions, the employer failed to attend these hearings. On 16 February 2010, the Arbitration Council ordered the reinstatement of four union leaders (the remaining ten leaders and activists having withdrawn from the case): Mr Sok Narith, Mr Loek Phin, Ms Sophann Dara and Ms Pech Sovattey. The Arbitration Council also ordered that the severance agreements be considered null and void and ordered the company to grant the union leaders access to the company in order for them to carry out union duties.
7. 326. The complainant adds that on 23 February 2010, the employer rejected the decision of the Arbitration Council, refusing to reinstate the four union leaders. It requests the ILO to call on the Government to enforce compliance with the Arbitration Council award and to enforce dissuasive sanctions against acts of anti-union discrimination.

B. The Government’s reply

1. 327. In its communication dated 23 July 2010, the Government indicates that on 11 March 2009, the Department of Labour Dispute of the Ministry of Labour and Vocational Training received a complaint No. 27/09 dated 4 March 2009 from the CTSWF about the dismissal of 14 union leaders by the manager of Naga World. The Ministry assigned the conciliators to settle this case in accordance with the legal procedures, but no solution could be reached because the employer refused to reinstate the 14 employees for the reason that they had already accepted the payment of their indemnity for dismissal and other benefits for the employment termination in accordance with article 89, section 3 and Chapter 4 of the Labour Law.
2. 328. On 26 March 2009, the Ministry submitted this case to the Arbitration Council. After the hearing, the Arbitration Council issued the award No. 47/09 dated 7 May 2009 ordering not to consider the request for reinstatement of the 14 union leaders and activists for the reason that the demand was made without any legal procedures.
3. 329. On 18 December 2009, the Ministry of Labour and Vocational Training received the complaint No. 77/09 dated 15 December 2009 from the CTSWF concerning once again the request for the reinstatement of the four union leaders: Mr Sok Narith, Mr Loek Phin, Ms Sophann Dara and Ms Pech Sovattey. The Ministry ordered the Department of Labour Dispute to seek a solution to this complaint, but the conciliation could not be reached because the employer side was absent without any reason. The Ministry's conciliator therefore decided to send the case to the Arbitration Council for further settlement.
4. 330. On 16 February 2010, the Arbitration Council issued the award No. 10/10 ordering the company to reinstate the four union leaders as soon as the award comes into effect and provide them with full back pay, benefits and seniority since the date of dismissal. However the employer side has filed a complaint against the decision of the Arbitration Council on 23 February 2010 and the award could therefore not be enforced.

C. The Committee’s conclusions

1. 331. The Committee notes that the allegations concern the dismissals of union leaders and activists employed in the Naga World Co. Ltd. in the framework of inconclusive negotiations between the management and the CTSWF, following the submission by the union representatives of a letter to the management requesting negotiations for the 2009 annual salary increment.
2. 332. According to the complainant organization, 14 union leaders and activists employed in the company were summarily dismissed from their employment on 26 February 2009, after having been forced to sign severance agreements under duress. Since this time, they have been prohibited from entering the premises, which prevented them from fulfilling their duties as union leaders. While noting that the Government does not refer to the severance agreements in its communication, the Committee notes the Government’s indication that the Ministry assigned the conciliators to settle this case in accordance with the legal procedures, but that no solution could be reached because the employer refused to reinstate the 14 employees for the reason that they had already accepted the payment of their indemnity for dismissal and other benefits for employment termination in accordance with article 89, section 3 and Chapter 4 of the Labour Law. The Ministry submitted the case to the Arbitration Council on 26 March 2009.
3. 333. The Committee further notes the complainant’s indication that ten union leaders withdrew from the case. As to the remaining four dismissed union leaders, Mr Sok Narith, Mr Loek Phin, Ms Sophann Dara and Ms Pech Sovattey, the Committee observes that both the complainant organization and the Government indicate that, after unsuccessful negotiations between the concerned trade union and employer, the dispute was submitted to the Arbitration Council. In this regard the Committee notes with regret the Government’s indication that the employer side, without having provided any reasons, failed to attend the conciliation meetings organized by the Department of Labour Dispute before the submission of the case to the Arbitration Council.
4. 334. The Committee understands that the Arbitration Council issued two main decisions in this case, namely the Arbitral Award No.47/09 dated 7 May 2009 and the Arbitral Award No. 10/10 dated 16 February 2010. The Committee notes that the initial claim for reinstatement that forms the basis of the Arbitral Award No.47/09 was introduced by 14 dismissed union leaders, workers delegates and union activists. However the Arbitration Council, while concluding that the elements available to it demonstrated that the agreement could have been made under psychological duress placed upon the workers, declined to consider the merits of the demand for reinstatement on the basis that there still existed a legal separation agreement between the parties, which would have to be nullified before any further consideration could be given to the matter. The Arbitration Council recalled that the victimized party was entitled by law to request nullification of the contract should it so desire. Subsequently, in 2010, four of these dismissed union leaders and activists (Ms Pech Sovattey, Mr Sok Narith, Mr Loek Phin and Ms Sophann Dara) once again called upon the Arbitration Council to request that they be reinstated and that the termination agreements which they had signed under duress be nullified. In its Arbitral Award No. 10/10, the Arbitration Council decided to nullify the agreements for the termination packages dated 27 February 2009 and 2 March 2009, recalling that any agreement made by force shall be voided:
   • Based on the findings of fact, the worker party states that the signing to accept the agreement for indemnity for dismissal from the employer was made by forcing. The worker party claims that the company withdrew their entry card and directed the security guards to escort the workers to meet the Human Resources Manager; the worker party also states that the employer forced and put financial pressure on workers by not paying their wage in February to them unless they agreed to take the indemnity for dismissal; the workers had no other choice but to accept the indemnity for dismissal to survive. Based on the above interpretation, the Arbitration Council considers that the workers have no willing to sign the agreement to accept the indemnity for dismissal. Therefore, the Arbitration Council considers that the agreement for the indemnity for dismissal shall be voided.
5. 335. In the same decision, the Arbitration Council ordered the reinstatement of the abovementioned four union leaders with full back pay from the day of the dismissal. The Arbitration Council’s finding on the basis of which it ordered the reinstatement of Ms Pech Sovattey (Secretary-General of the Union) and of Mr Sok Narith (CTSWF VicePresident and worker delegate) was that their dismissals did not take place in accordance with the Labour Law and the jurisprudence of the Arbitration Council, since the employer did not ask for permission from the Labour Inspector. As to the dismissals of Mr Loek Phin and Ms Sophann Dara, the Arbitration Council concluded that the company dismissed them “because they both joined union activity for the workers’ benefit”. Accordingly, it decided that their dismissal was not lawful and ordered their reinstatement.
6. 336. Furthermore, considering that the employer’s failure to attend the hearing constituted a failure to respond to the accusation, the Arbitral Award No. 10/10 ordered the employer to cooperate and enable the union to set up its meeting place as it was prior to the dismissals and allow the union leaders access to the enterprise for fulfilling their responsibilities. The Committee notes however the Government’s indication that on 23 February 2010, the employer filed a complaint against the decision of the Arbitration Council of 16 February 2010, with the consequence that the award could not be enforced.
7. 337. The Committee recalls that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures, and that this protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. It further recalls that one way of ensuring the protection of trade union officials is to provide that these officials may not be dismissed, either during their period of office or for a certain time thereafter except, of course, for serious misconduct [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 799 and 804].
8. 338. In these circumstances, the Committee requests the Government to keep it informed of the appeal lodged by the employer against the decision of the Arbitration Council dated 16 February 2010, which ordered the reinstatement of the four union leaders, Mr Sok Narith, Mr Loek Phin, Ms Sophann Dara and Ms Pech Sovattey, and to supply a copy of the decision once adopted, which it expects will also address the issue of the severance agreements found to be signed under duress. In the meantime, and given the impact of these dismissals not only on the union leaders but also on the representation of the workers at the enterprise, the Committee urges the Government to take the necessary measures to seek their reinstatement without delay and to ensure that the union leaders are immediately authorized to carry out their trade union activities in the company (outside of working hours, as was previously the case, noted in the award), pending the conclusion of the appeals procedure.
9. 339. In this respect, the Committee recalls that in previous similar cases, it had highlighted that the Government is responsible for preventing all acts of anti-union discrimination and ensuring that complaints against acts of anti-union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned. The Committee had urged the Government to take steps without delay to adopt an appropriate legislative framework to ensure that workers enjoy effective protection against acts of anti-union discrimination, including through the provision of sufficiently dissuasive sanctions and rapid, final and binding determinations and had invited the Government to avail itself of the technical assistance of the Office in this respect (see Case No. 2655, 355th Report, para. 353; Case No. 2262, 342nd Report, para. 233; and Case No. 2468, 344th Report, para. 436).
10. 340. In this context, the Committee underlines that the dismissals took place in February 2009 and that no information has been provided (nor has been set out in the awards) that would demonstrate that the termination of employment of these union leaders was due to any reason other than their union activity. Accordingly the Committee once again urges the Government to take steps without delay to adopt an appropriate legislative framework to ensure that workers enjoy effective protection against acts of anti-union discrimination and anti-union dismissals, including through the provision of sufficiently dissuasive sanctions and rapid, final and binding determinations. The Committee invites the Government to avail itself of the technical assistance of the Office in this respect.