2007 Annual Survey of violations of trade union rights - Cambodia

Population: 14,800,000
Capital: Phnom Penh
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138

New information on the case of assassinated trade union leader Chea Vichea emerged, demonstrating that scapegoats had been jailed and the real perpetrators were still free, but the government took no action to remedy this travesty of justice or apprehend the real killers. Restrictions on trade union rights for public servants remained in place, and private sector unionists faced a gauntlet of police violence, weak law enforcement, and employer impunity. Courts continued to demonstrate in word and deed that they are not independent of the government.

Trade union rights in law

Freedom of association – civil servants excluded: Workers are free to form and join trade unions under the 1997 Labour Law. However, this law does not apply to civil servants, including teachers, judges, military personnel and household servants. Personnel working in air and maritime transportation are not fully subject to the law, but are free to form unions.

The Labour Law requires unions and employers' organisations to file a charter and list of officials with the Ministry of Labour and Vocational Training (MOLVT). The Bureau of Labour Relations has the responsibility to facilitate union registration and the application for "most representative" status. The MOLVT is also responsible for enforcement of the Labour Code and the application of ILO Conventions.

Excessive eligibility criteria: Article 269 of the Labour Code provides that union leaders must have been engaged in the profession their union represents for at least one year. This restricts a union's right to choose their own representatives, and deprives it of the benefit of skills or experience it may not have in its own ranks. The law also requires that leaders of a union must be at least 25 years of age, must be able to read and write, and not have been convicted of any crime. Foreigners seeking to lead a workers' organisation have equally burdensome requirements – according to Article 270, they must be aged 25 years or older, have been working two consecutive years in Cambodia, and be able read and write Khmer.

Restrictions on the right to strike: The law guarantees the right to strike, but limits that right by imposing a minimum service requirement in all enterprises, regardless of whether they are public utilities or not, and exceeding the need to comply with statutory safety requirements. Workers who are required to provide a minimum service but stay out on strike are considered guilty of serious misconduct.

Requirements which must be fulfilled for a strike to be considered legal are also quite cumbersome, and thereby are frequently ignored by workers. Disputes must be first subjected to labour conciliation conducted by an inspector of the MOLVT, who has 15 days to seek a settlement. If there is no mutually satisfactory result, the dispute must be submitted to the tripartite Arbitration Council for investigation and a decision, which also must come within 15 days of the dispute being referred to the Council. During the period when the MOLVT is conciliating, or the Council considering the case, it is illegal to strike.

For a strike to be legal, the union must obtain a majority in a secret ballot of its members. The union must also provide seven days advance notice to the employer and the MOLVT. If the enterprise is engaged in what the government considers an "essential service", and the strike could "endanger or be harmful to life, safety, or health of all or part of the population ... ", then the law stipulates the waiting period must be a minimum of 15 days.

Collective bargaining: The law obliges the employer to negotiate collective bargaining agreements with unions that have been granted "most representative" status, and bargain with minority unions on issues covering members of that union. The employer must meet with representatives designated by the union. Negotiators are protected by law and are entitled to full salary during negotiation.

A Ministerial regulation (Brakas no. 13), promulgated at the end of 2004, has caused significant problems for unions. The regulation allows third parties (such as employers or another union) to challenge the majority union's petition for "most representative" status. By filing these challenges, management/employer groups or pro-management unions can tie up a majority union time and resources, and prevent them from negotiating a collective bargaining agreement.

Another major problem in law is caused by confusion between the role of shop stewards and labour union leaders. Each workplace with over eight employees must have a shop steward. Shop steward elections are held at the factory, and the law provides that employers are the ones who must organise them. The law gives representative unions the right to nominate the shop stewards to stand for election. But, often, stewards are elected before a union is organised in a factory. Article 284 gives shop stewards the duty to present to employers issues related to grievances and wages, and to enforce labour law and collective agreements. These are functions that rightfully belong in the hands of elected trade union leaders. In a number of cases, employers have used shop stewards (who are elected for two years, and cannot be forced out) to block the path of unions to the bargaining table, because shop stewards are the only worker representatives in the law with legally enforceable bargaining rights. The labour law fails to provide a similarly enforceable right for trade union leaders.

Trade union rights in practice

Only a small proportion (about one per cent) of the total labour force is unionised, and outside the garment and tourism/hospitality sectors, the trade union movement remains very weak. Most workers have little or no knowledge of trade unions, or of their labour rights. There was continuing credible evidence of management interference in factory-level trade unions.

Poor enforcement: Where unions do exist, in the garment and footwear industries, as well as in the tourism and education sectors, it is difficult for them to negotiate with management on equal terms. Many of the garment workers are young women from rural areas. Employers do not hesitate to use anti-union discriminatory practices such as dismissals. For its part, the government seldom takes action against employers or punishes acts of anti-union discrimination. Workers complained that with the creation of the MOLVT, which was separated in July 2004 from the previous Ministry (MOSALVY) that included both labour and social affairs, the efficacy of enforcement declined even further. More often than not, the Ministry of Labour's advice is for workers to take their case to court – which is costly and ineffective – or accept cash settlements from employers. Labour inspectors are poorly trained and, given their low pay, open to bribery. In cases where the MOLVT decided in favour of workers, it rarely used its legal authority to penalise employers who did not follow its orders.

Still no labour courts: The Cambodia Labour Code of 1997 provides in Articles 387, 388, and 389 that a system of Labour Courts shall be created to rule on "individual disputes occurring between workers and employers regarding the execution of the labour contract or the apprenticeship contract." During the year, there were continued worker appeals to the government to set up the Labour Court, including those made during May Day – but these petitions and recommendations were disregarded.

The Arbitration Council, a tripartite body established under the labour law, has effectively substituted the Labour Courts. The council is widely respected for its even-handed and impartial investigations and rulings. However, its decisions are not final, and employers found to have engaged in anti-union discrimination usually appeal against the council's decisions in the provincial courts.

Strikes: The government generally tolerates strikes and demonstrations, although the police are sometimes called in and have been known to use violence. Strikes are frequent in garment factories, with workers protesting against long hours, forced overtime, low pay and poor treatment.

Collective bargaining: Collective bargaining is difficult and only a few unions have achieved an enforceable agreement. It was not until late 2003 – six years after the passage of the labour law – that garment and tourism worker unions won their first proper collective bargaining agreements.

Teachers' association activity obstructed: The Cambodian Independent Teachers Association (CITA) is registered by the Ministry of Interior as a civic association, but is not recognised by the MOLVT as a trade union. CITA has repeatedly been harassed and monitored by local public authorities and the police when organising meetings, especially in rural provinces outside the major cities. CITA is not recognised by the government as having the right to collectively bargain on behalf of teachers.

Civil servants association not recognised for bargaining: Like CITA, the Cambodian Independent Civil Service Association (CICSA) is registered as a civic association under guidelines of the Ministry of Interior, but is not recognised by the government as a union, and does not enjoy collective bargaining rights.

Party links and company unions: A total of 24 labour federations have historical ties to the government or to Prime Minister Hun Sen's political party, the Cambodian Peoples Party (CPP). One example is that of the Cambodia Union Federation (CUF) which has a history of creating company unions in garment factories to serve the interests of employers and government leaders. Eleven federations are grouped in the pro-government Cambodian Confederation of Trade Unions (CCTU), and independent trade union federations frequently levied complaints that the CCTU interfered with their activities and, in some cases, threatened opposing union leaders. The government often favoured the CUF and CCTU, such as giving them preferential rights to rally (see Violations section about May Day events).

The FTUWKC alleged continuous CUF involvement in violence against its union leaders at Bright Sky factory (see Violations section), based on victim's eyewitness accounts of their attackers. No action was taken by the police against the CUF.

Tripartite policy mechanism fails to meet during the year: The tripartite Labour Advisory Committee (LAC), established pursuant to the Labour Code, serves as the sole formal channel for labour union participation in the government's policy determination processes on labour matters.

Violations in 2006

Background: Prime Minister Hun Sen regularly attacked domestic and international critics of Cambodia's poor human rights record, including Professor Yash Gai, the UN Special Representative for Human Rights in Cambodia, who he refused to meet and subsequently called on the UN Secretary-General to dismiss. The government was considering a draft "Law on Local Associations and Non-Governmental Organisations" that would impose new, severe restrictions on the vibrant NGO sector that provides important support for Cambodia's workers. The draft law includes cumbersome registration requirements and intrusive government oversight.

Official involvement in frame-up of scapegoats jailed for 20 years in case of killing of Chea Vichea: In 2005, Born Samnang and Sok Sam Oeun were convicted of the murder of Chea Vichea, President of the Free Trade Union of the Workers of the Kingdom of Cambodia (FTUWKC), and each sentenced to 20 years in jail. In 2006, new evidence found by a researcher working for the then International Confederation of Free Trade Unions (ICFTU, dissolved when the ITUC was founded) clearly proved earlier claims that the two men were scapegoats, and had nothing to do with the killing. The sole witness to the killing, newspaper stand owner Va Sothy, now living in exile because of fear of retaliation, stated that the two men were not the killers, and added in a notarised statement from Bangkok that she saw the actual killer again when he came to her newsstand one month after the killing. In her statement, she provided a detailed description of the Chea Vichea's killer, and his accomplice, but added that she had been too scared of retaliation to cooperate with police and had good reason to believe that "I would be killed if I continue to live in Cambodia." She described how the police repeatedly attempted to compel her to identify a sketch of a person as the murderer, but she declined to do so – yet that sketch later appeared in the newspapers with police statements saying it had been corroborated by a witness.

An extensive interview with Noun Kim Sry, the mother of Born Samnang, revealed that her son had not even been in Phnom Penh when the murder was committed. In fact, he had been in Prey Veng province, visiting his girlfriend, and there were numerous witnesses available to testify to this fact – but none of them were allowed to be heard by the Court that convicted him. She also stated that her son was tortured extensively by police to force a confession, and when he refused, he was physically forced to sign (with his fingerprint) the confession document prepared by the police. Based on this new evidence, lawyers for the two men filed an appeal which was heard on 6 October by the Appeals Court. However, Judge Saly Theara adjourned the hearing after just five minutes, claiming the hearing must be rescheduled because one of the judges on the judicial panel was sick. By year end, the hearing had still not been re-scheduled.

Gen. Heng Pov, the Chief of the Phnom Penh police who was directly involved in leading the investigation, also corroborated that the convictions of the two men were frame-ups. After he fled the country, he told the Belgian weekly publication Le Vif/L'Express that pressure had been placed on innocent men to force them to confess, and laying the blame for the killing on unnamed high-level persons in the Cambodian military.

Demands by the ICFTU and the international community to re-open the investigation of the murder of Chea Vichea, and conduct an independent and impartial judicial inquiry into the death of FTUWKC factory-level leader Ros Sovannareth as called for by the ILO were ignored by the government.

May Day march and rally prohibited, attacked by police: Cambodian Government authorities discriminated against independent and opposition-aligned trade unions by refusing permits to march and rally on May Day for the FTUWKC, the CITA, and Cambodia Confederation of Apparel Worker Democratic Unions (CCAWDU) but approving a permit for a rally by the government-aligned Cambodian Confederation of Trade Unions (CCTU) in front of the National Assembly. At 9.00 am police detained FTUWKC leader Chea Mony for just over two hours to try and prevent the march. Police and military personnel, armed with electric batons and backed by fire trucks with fire hoses, also set up road blocks to prevent the march. In Stung Meanchey district, police and soldiers fired their guns in the air to try and intimidate marchers. Workers were pushed back and in some cases beaten to halt their progress towards the centre of Phnom Penh. Police also physically disrupted attempts by marchers to lay a wreath at the FTUWKC office in memory of assassinated FTUWKC President Chea Vichea. Meanwhile reflecting the government's view of labour, Nhep Bunchin, the Minister of Labour, told newspaper reporters that May Day should not be a day to protest, strike or demonstrate, but rather workers should spend the day as a "Happy Day."

Regular police brutality in suppressing worker protests: Police and military police continually prevented rallies and marches by workers in Phnom Penh. Rallies by workers in front of their factories were generally allowed in the initial stages, but then later were suppressed. Police attacks against protesting workers occurred on almost a monthly basis, with workers being injured at Parkview Garment, Franco Garment, Sportex Garment, Luan Thai Garment, and Khuy Shing Garment, to name just a few. Workers' efforts to march to petition government offices, employer associations, or foreign Embassies were often also met with threats and violence.

Systematic violence against union leaders at Bright Sky: A campaign of systematic violence against the FTUWKC union at the Bright Sky factory was met with silence by Cambodian police and government authorities, who did little to investigate the very serious injuries inflicted on union leaders. The close relationship between factory management and an established union in the factory – the Cambodia Union Federation (CUF), which maintains strong links with the Minister of Interior and other senior government officials – raised suspicions among workers that management orchestrated the campaign. On at least one occasion, CUF members were identified by victims of the violence as one of their attackers.

On the morning of 3 May, as Chi Simun, the President of the FTUWKC union, was walking home after the night shift, he was attacked about 30 metres from the factory by seven persons who seriously beat him on the head and shoulders with iron pipes and sticks. Because of the injuries he suffered, including an injured right eye and a wound on his head that required 15 stitches, he was unable to return to work until 12 May. Chi Simun recognised some of his attackers, and submitted their names and information to local police, but no investigation or other action was taken. On 22 May, as Chi Simun was leaving his workplace after the night shift ended at 5.00 am, he saw a gang of about 20 thugs waiting outside the factory for him. He did not dare go out of the factory, and remained inside the factory compound until 7.00 am when the sun came up and the gang dispersed. Also in May, union activist Yeng Vann Yuth was ambushed by a group of thugs, and was badly beaten. On 8 June, the FTUKWC union treasurer, Lem Semret, was attacked by six men outside the factory and beaten by a gang of thugs.

Factory management called in the police to crack down on a rally led by the FTUWKC in front of the factory on 16 October. The police fired bullets in the air and swung batons to disperse the union protesters. As the workers were fleeing this onslaught, a 24-year old woman worker named Muth Savy was shot by the police in the back, and had to be rushed to the hospital. Numerous other workers were injured when they were hit by police batons and rifle butts. The Deputy President of the union, Em Chhay Tieng, was punched in the face by a policeman and had to be taken to the hospital. Following the protests, police arrested and temporarily detained 16 union members.

Soon after these incidents, the Bright Sky management announced that it was shutting down its night shift, thereby throwing out of work over 1,500 workers. Almost all the FTUWKC workers in the factory worked on the night shift, so this firing effectively decimated both the union's leadership and rank and file members in the factory. When FTUWKC members from Bright Sky sought jobs at other factories, they were informed that Bright Sky had distributed names and photos of the FTUWKC leaders and activists to all other factories, effectively black-listing them.

Violence and shooting of leader of the union at Suntex: At Suntex, another factory in the Ocean Sky Group which also owns Bright Sky, a similar pattern of management tolerated violence and intimidation against union workers prevailed. On 19 May, Chey Rithy, the Vice-President of the FTUWKC union at the factory, was attacked by assailants while riding home. On 4 July at 9.50 pm Mr. Lay Chamroeun, the Vice President of FTUWKC at Suntex Factory was riding home when he was shot in his left leg by an unidentified person in front of the Kung Hong Factory. According to the workers, and to the FTUWKC, no government investigation was launched into this serious incident. On 19 September, Choy Chin, the FTUWKC Secretary-General at the factory, was savagely beaten on the head by two men armed with a metal pipe. At the end of the year, the FTUWKC worriedly reported that the Suntex union President Hy Vuthy was receiving telephone death threats from unknown persons.

All the violent incidents were reported by the FTUWKC to the police, who apparently failed to investigate any of the cases.

Union rights ignored at Angkor Wat: The Authority for the Protection and Management of Angkor and the Region of Siem Reap (APSARA), a government-created entity, was directly involved in anti-union firings of workers. On 9 August, APSARA workers responsible for maintenance and cleanliness of the areas around the Angkor monuments filed a letter of demands for improved salary and working conditions. However, APSARA management categorically refused to meet or bargain with the union, prompting the CCTUF to file a complaint with the Siem Reap MOLVT office which did little to resolve the workers' complaint. Management retaliated against the union on 21 December, when a supervisor in the APSARA Water and Trees Unit called in 29 union leaders and activists, and told them they would be suspended indefinitely starting on 28 December because they had formed a union. In the meeting, the supervisor repeatedly emphasised the connection between the union and the suspensions, and referred to union people as "thieves." When a so-called "reinstatement list" of employees was posted by management, the union learned that APSARA had hired new employees rather than allow the suspended workers to return to work.

The Japan Government Team for Safeguarding Angkor (JSA), now renamed JASA but continuing with the same management, has continually refused to recognise the CCTUF union at their worksite, and ignored proposals to start collective bargaining. In 2005, JSA fired 70 workers who were active leaders and members of the union, and then shut down altogether in April. When JSA re-opened in March 2006 as JASA, it refused to hire former JSA workers who were known union leaders and activists.

The Sophia University team (also from Tokyo, Japan) refused to bargain in good faith with the CCTUF, and compelled workers to sign contracts that were not in line with the union's proposals – with those not agreeing to sign being sent home. The President and the Vice-President of the CCTUF union at the Sophia have been terminated and police were used to keep them out of the worksite.

River Rich Textile fires newly elected union leaders and activists: In October, the workers at River Rich, concerned by the lack of job security caused by River Rich's practice of hiring over 70 per cent of its workforce on temporary contracts, decided to organise a CCAWDU affiliated union to defend themselves. Management learned of the organising effort and threatened two leading union supporters, Chan Tola and Tuy Ty, with dismissal unless they withdrew their candidacies for union leadership and ceased their organising efforts. Despite this intimidation, the elections went ahead – and two days later, management fired 19 leading union supporters, including the newly elected union President. Within the next few days, another 117 workers were fired. When the union filed a complaint with the authorities of anti-union actions in violation of the labour law, management offered bribes to five key pro-union workers who had been dismissed in exchange for dropping the case. The workers refused, and at year end, the case had been referred to the Arbitration Council.

F.Y. Singapore Garments Pte Ltd. (FYG) fires strikers: 600 workers from the Cambodian Federation of Independent Trade Unions (CIFTU) went on strike from 25-27 July to press for better working conditions after a refusal by factory management to bargain on key grievances brought forth by the workers. Following intervention and mediation by officials from the MOLVT, management agreed to the workers demands and the union agreed to end the strike and return to work. However, management had apparently taken the time to also assess who the union's leaders were, and the next week it retaliated by firing 52 members of the union. A number of workers took severance pay, but 15 insisted on reinstatement. When negotiations failed, the union filed a case before the Arbitration Council which ruled on 18 September that the 15 workers must be reinstated. Management refused to comply, and redoubled pressure on the 15 workers to take the severance pay, finally prompting the union to call another strike in early October. The union received strong support from the textile workers' international ITGLWF, which contacted brands sourcing from the factory to also pressure the company. The factory ownership finally agreed to reinstate the 15 workers in November, and in December, signed a new collective bargaining agreement with the union that resolved key outstanding issues and demands.

Goldfame Enterprises (Int'l) Knitters Ltd manipulates union election: Between 2 and 4 June factory representatives interfered in elections for the leadership of the CCAWDU affiliated union by offering bribes to 18 workers to not stand in the election and resign from the company. Factory management then sent a letter dated 5 June to the Arbitration Council stating that all outstanding issues had been resolved and providing an "agreement" with thumbprints of 17 persons that the factory said were CCAWDU representatives. However, workers reported that there was no election for the union (it was not held until 8 June) and at that time the CCAWDU union had not yet been registered with MOLVT so it lacked the legal status to negotiate or sign anything. Therefore, the union alleged that management was engaged in trying to terminate a legitimate bargaining process through use of un-elected workers who management unilaterally claimed were union leaders. The union's interpretation of events was upheld by the Arbitration Council's decision on the case issued in June, which declared the "agreement" null and void because the workers who signed the agreement did not have the authority from the workers and noted that a union must be registered before it can legally represent workers.

Firing of union leaders and violence by guards at LA Garment: On 16 February, the management of LA Garment factory 2 unilaterally fired four senior CCAWDU union leaders in the factory – Vice President Kea Sim and Secretary Nhel Kimline – and two leading FTUWKC activists, Min Saren and Chhom Sokha. When informed of their termination, the leaders refused the termination pay offered by management and sought to return to work – but they were physically manhandled by factory security guards and prevented from doing so. The guards' action resulted in an injury to one pregnant worker who required hospitalisation. As a result, 400 workers launched a spontaneous wild-cat strike demanding their reinstatement, and protesting their treatment by the guards. The workers solidarity was successful and the pressure from the strike finally led to the reinstatement of the four leaders on 21 February.

Genuine Garment: Trumped up charges against union leaders and factory-directed violence: Leaders of the Free Trade Union of Workers of the Genuine Garment Factory (FTUWGGF) at Genuine Garment Factory (Jan You Inn) report they were shocked to receive notice from the Court on 12 June that they had been convicted of trumped up criminal charges filed by the factory owner. The charges dated back to an August 2004 strike at the factory in which they allegedly caused damage (breaking glass in the security guards' station) to the factory. The FTUWKC reported that the workers were unaware they were on trial before being informed of the conviction. Four union leaders were sentenced to a one year suspended sentence, and ordered to pay a fine of 8 million Cambodian riel (equal to $US 2,000). Reviving old court cases is a common tactic used to intimidate workers who want to establish a trade union or who want to go on strike for better working conditions, and the Cambodian courts have a well-earned reputation for corrupt behaviour that enables this tactic to succeed. Supported by their union, the convicted workers appealed their conviction.

On 23 June, the employer used the court conviction as a justification to fire the four union leaders. In response, the union immediately went on indefinite strike to protest the firings and demand their reinstatement. The company refused to negotiate, and on 28 June, workers began to block access to the main factory gate to prevent the employer from breaking the strike by sending materials to other factories. The union reports that an agreement was reached with the owner to allow the strikers to inspect trucks exiting the factory, but when the owner repeatedly violated the agreement, the gate was again locked. The harassment of the union leaders by the employer and local authorities then intensified. The employer filed a complaint with the Kandal province authorities and on 3 July, without further investigation of the validity of the charges, police acted on the complaint and arrested three of the union leaders – – Lach Sambo, Yeom Khun and Sal Koem San – at their homes, charging them with "illegal confinement", presumably of factory management. The fourth union leader managed to evade arrest. With the union's leaders in jail, management moved to end the protest by directing a mob of company-recruited thugs who attacked the workers' picket on 6 July, and dispersed the strikers.

On 7 August, despite a lack of evidence, the three union members were convicted of the crime of "illegal confinement" and sentenced to time already served in jail and a further three year suspended sentence. At the time of writing they were also fighting a civil lawsuit against them filed by the factory management.

Defamation charges dropped, union leaders free: The defamation charges against Rong Chhun, President of the Cambodian Independent Teachers Association (CITA) were suspended, and he was released on January 17 after almost three months in jail. Similar charges, all relating to a statement issued in 2005 criticising the border agreement with Vietnam, were subsequently suspended against Chea Mony and Men Nath, and on 1 February, Chea Mony safely returned to Cambodia after months in exile. The releases and bail for Rong Chhun were guaranteed by Prime Minister Hun Sen, but he later said in public statements that any activists who behaved "arrogantly" could be re-arrested, and at the end of the year, the formal charges against Rong Chhun had still not been dropped.

Flying Dragon 3 Garments fires union complainants: The Arbitration Council ruled in February 2006 that Flying Dragon 3 Garments decision, in 2005, to force all employees to accept short-term contracts was illegal. Instead of complying with the ruling, Flying Dragon 3 management retaliated by firing seven union activists involved in filing the complaint to the Council. The union then went on strike from 22 February until 13 March to press demands that included the unconditional reinstatement of their three CCAWDU union leaders fired in 2005. During the strike, factory management then filed criminal charges (three counts of incitement) against the seven union activists, albeit allegedly without any evidence to support the charges. Finally, in March, after a successful campaign, CCAWDU was able to secure reinstatement without pre-conditions for all seven workers.

Employers ignore Arbitration Council orders to reinstate dismissed union activists: The Thai-owned Grand Diamond City, located in Poi Pet city on the Thai-Cambodia border refused to comply with a ruling by the Arbitration council on 9 March that it should reinstate 11 activists from the Cambodia Tourism and Service Workers Federation (CTSWF) unfairly dismissed in 2005.

Similarly, despite rulings by the Arbitration Council in 2004 that it must reinstate the four union leaders Himawari Apartment Hotel (formerly known as MiCasa Apartment Hotel) contested the decision and refused to comply. At the end of the 2006, the company still refused to negotiate with the CTSWF or the fired unionists.