Cambodia: HRW Letter to Prime Minister Hun Sen on the Proposed Trade Union Law

Prime Minister Hun Sen
Royal Government of Cambodia
Phnom Penh

Re: Proposed Trade Union Law

Dear Prime Minister:

We are writing to urge that you immediately make public the latest draft of the proposed trade union law; consult with all stakeholders, including local and international unions and labor rights groups; and revise the bill to bring it in line with international labor rights standards.

Human Rights Watch obtained an October 2014 version of the bill, and our examination found that it contravenes Cambodia’s obligations under International Labour Organization (ILO) Convention No. 87 on Freedom of Association and Convention No. 98 on the Right to Organise and Collective Bargaining. Ever since a May 2014 consultation inviting local labor rights groups to participate, Cambodian authorities have not held any public consultations on subsequent drafts of the bill. However, periodic announcements by government officials to the media have indicated that the trade union law will be enacted in 2015.

The government’s lack of transparency in making the draft law public and subject to scrutiny and consultation is contrary to principles of democratic governance and jeopardizes public trust in the law-making process. The May 2015 joint statement by the country representatives in Cambodia of the OHCHR, UNICEF, UNFPA, and UN Women expressed concern that “[t]he current climate of uncertainty and thus distrust stems from the fact that, beyond the government, no one knows the contents of the latest version of the draft LANGO [Law on Associations and Non-Governmental Organizations]. The same applies to a draft law on unions of enterprises.” The UN country representatives also pointed to good practices for participatory and consultative law-making that have been conducted by other ministries, notably the Ministries of Environment and Information.

Human Rights Watch is seriously concerned that the trade union law, if passed in its current draft form, will violate international labor standards ratified by Cambodia, and severely damage Cambodia’s reputation as a garment producing country where rights matter. As you are aware, Cambodia has already been in the international spotlight for wage protests, the excessive use of force by the security forces that killed and injured protesters in January 2014, and repeated mass fainting in factories.

Cambodia also faces a potentially daunting trade environment in the years ahead. The new European Union Generalized System of Preferences that entered into force in 2014, combined with the Free Trade Agreements being negotiated between the Association of Southeast Asian Nations (ASEAN) countries and the EU, could have a detrimental impact on Cambodia. Similarly, the Trans-Pacific Partnership Agreement (TPP), if finalized, will include Vietnam and may prompt business partners to relocate to TPP countries. More reputational harm will risk slowing Cambodia’s economic growth.

Below we draw your attention to some key problems in the October 2014 draft and urge you to ensure that these are rectified in subsequent drafts of the bill:

Flawed scope of the draft law
The draft law excludes various categories of workers, including domestic workers and other workers in the informal economy (article 3), violating Cambodia’s obligations under ILO Convention No. 87.[1] This effectively excludes a large proportion of Cambodia’s working population from forming unions. The 2012 Cambodia Labour Force and Child Labour Survey (Labour Force Survey) showed that about 60 percent of the working population was in informal employment; another 33 percent in agriculture employment, while a mere 6.5 percent was in formal employment. In urban areas informal employment accounted for 82 percent, compared to 53 percent in rural areas.

Domestic workers are among the most vulnerable workers, at risk of poor wages, and physical and sexual abuse. Providing a clear legal framework to allow these female domestic workers to form a union would significantly assist them to protect their rights.

Curtailing workers’ ability to form unions
To form a union, the draft law prescribes a minimum threshold of membership at the factory-level of 20 percent of the workers (article 10), which is very high and out of step with international standards. The ILO Committee on Freedom of Association has stated that “[t]he establishment of a trade union may be considerably hindered, or even rendered impossible, when legislation fixes the minimum number of members of a trade union at obviously too high a figure.”[2]

All registered unions will have to reapply for union registration (article 87) in accordance with the new law within six months of the law being enacted. Read together, articles 10 and 87 appear intended to limit the number of independent unions, which already have difficulty organizing in factories and registering compared to so-called “yellow” unions that are either controlled by the government or factory management.

Discriminatory and irrelevant eligibility requirements and overbroad exclusions for union leadership
The eligibility requirements for union leadership (article 21) discriminate on the basis of nationality because the provisions specify additional criteria for foreigners, such as a higher minimum age of 21 (compared to age 18 for nationals), the right to permanent residence, a minimum of at least two years’ work experience in Cambodia, and also allows the ministry to ask for additional information where necessary.

Requiring union leaders to have an education level with the ability to read and write Khmer is irrelevant to the qualifications for union leadership and should be eliminated from the draft law. Whether this is an important qualification should be determined by union members when they elect their leaders. It is important to note that such a qualification would have a disproportionate impact on the ability of women to become union leaders, as the 2012 Labor Force Survey found that the proportion of females who had never attended schools was almost double that of males and, on average, girls dropped out of school a year or two years earlier than their male counterparts. 

Seeking a declaration from workers that they have at least worked for three months would discriminate against first-time workers undergoing probation. The ILO Committee on Freedom of Association has said that workers undergoing probation also have a right to establish and join unions.[3]

The bill disqualifies anyone who has been convicted of a crime. This is an overbroad disqualification, deliberately leaving open room for misuse by employers and the government. Employers can scuttle the formation of unions by filing false complaints against workers, which will be prosecuted in government-controlled courts. The disqualification should be limited to conviction for offenses linked to a worker’s integrity such as fraud and embezzlement.

Sweeping, unchecked powers to suspend union registrations
Article 18 of the draft law vests the power of suspending union registrations with the Ministry of Labor and Vocational Training (MOLVT, an administrative authority). The ILO Committee on Freedom of Association has stated: “Measures of suspension or dissolution by the administrative authority constitute serious infringements of the principles of freedom of association.” Accordingly, such decisions should ideally be handled by an independent body like the Arbitration Council, or at a minimum, by courts with an opportunity for workers to be heard. It is also unacceptable that a union is given only a week for judicial appeal against suspension decisions, severely curtailing the right of appeal.

The criteria for suspending a union are very vague and open to abuse. The MOLVT would be allowed to suspend a union’s registration if it finds the union engages in activities that are “damaging to the interests” of Cambodia. This standard is so vague that it allows for arbitrary interpretation and misuse of the law.

The MOLVT also has the power to suspend a union’s registration where it “cooperates or carries out joint activities” with any organization that has not been registered in accordance with Cambodian law. This provision could be used to suspend registration of a trade union that worked on global labor issues with international trade unions and NGOs, which may or not be registered in Cambodia. In conjunction with a proposed new Law on Associations and Non-Governmental Organizations, which include rights-abusing mandatory NGO registration, and other provisions plausibly aimed at restricting or ending social and grassroots activism, this would have serious negative effects on trade union freedoms.

Arbitrary powers to declare strikes illegal, draconian legal consequences
The power to decide whether a strike is illegal is vested with a labor inspector – an administrative officer (article 78) instead of an independent body. Ideally the Arbitration Council should be involved, or at a minimum, courts. The ILO Committee on Freedom of Association has made it clear that, “[r]esponsibility for declaring a strike illegal should not lie with the government, but with an independent body which has the confidence of the parties involved.”[4]

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We respectfully urge you to make the draft law open to public scrutiny and consultation immediately, and address these serious problems in the draft trade union law.

Sincerely,

Phil Robertson
Deputy Director, Asia Division

cc:         

1. Ith Sam Heng, Minister of Labor and Vocational Training
2. Sun Chanthol, Minister of Commerce
3. Hor Namhong, Minister of Foreign Affairs and International Cooperation
4. Aun Porn Moniroth, Minister of Economy and Finance