Section 7. Worker Rights
a. Freedom of Association and the Right to Collective Bargaining
The law provides for the right of private-sector workers to form and join trade unions of their own choice without prior authorization, the right to strike, and the right to bargain collectively. The National Assembly adopted a new Law on Trade Unions (TUL) on April 4. Before going into full effect, the TUL requires the publication of nine implementing regulations, crucial in the interpretation of the TUL; four had been issued as of November. The TUL also calls for implementing legislation on the establishment of a labor tribunal.
The TUL imposes new limits on the right to strike, facilitates government intervention in internal union affairs, excludes certain categories of workers from joining unions, and permits third parties to seek the dissolution of trade unions, while imposing only minor penalties on employers for unfair labor practices. The law requires trade unions to file their charters, lists of officials, and banking details with the Ministry of Labor and Vocational Training. The TUL forbids unregistered unions from operating. The ILO offered, and the government accepted, an ILO “direct contacts mission,” expected in the first quarter of 2017, to provide guidance on compliance with international standards.
Civil servants, teachers, workers employed by state-owned enterprises, and workers in the banking, health-care, and informal sectors may form only associations under the LANGO, not trade unions. The ILO continued to request the government to provide for the right of public employees to freedom of association and collective bargaining. Personnel in the air and maritime transportation industries are free to form unions but are not entitled to social security and pension benefits and are exempt from the limitations on work hours prescribed by law.
Regulations on collective bargaining require one single union within an enterprise to demonstrate “most representative status” (MRS), meaning that the union represents the largest number of workers in a bargaining unit and at least 30 percent of all workers in an enterprise. Once a union has obtained MRS, no other union can represent workers in collective disputes. The TUL allows third parties to raise objections to granting a union most representative status, however, and these objections can form the grounds for government refusal of status. The ILO noted that allowing third party objections runs counter to internationally agreed labor rights related to freedom of association and collective bargaining. Once a union achieves MRS, the law then requires employers to negotiate once the union proposes a collective bargaining agreement. The law binds both parties to agree to an orderly bargaining process and to propose reasonable offers and counteroffers. Employers must provide facilities to conduct union activities and all information relevant to the bargaining process at the request of the union.
The law stipulates workers can strike only after several requirements have been met, including: the successful registration of a union, the failure of other methods of dispute resolution (such as negotiation, mediation, or arbitration), a minimum of 60 days following the emergence of the dispute, a secret-ballot vote of the union membership, and seven days’ advance notice to the employer and the labor ministry. The TUL states that the decision by a union to strike requires approval by an absolute majority of union members attending a strike meeting. The meeting must include a quorum of an absolute majority of the total union members. Once a union has successfully carried out a strike vote, the court has the power to issue an injunction against the strike and require the restart of negotiations with employers.
State enforcement of the right of association, including freedom from antiunion discrimination, and of collective bargaining rights was highly inconsistent. The law provides for a maximum fine of 5 million riels ($1,250) for violations of freedom of association and collective bargaining provisions; nevertheless, acts of antiunion discrimination, intimidation, and retaliation by employers or members of government-aligned unions generally went unpunished. Close relationships among government officials, employers, and union leaders, particularly those operating progovernment unions, limited the government’s willingness to address violations of workers’ rights. These relationships deterred union leaders from reporting cases of discrimination and hampered the independent operation of unions, since the majority of the country’s unions were affiliated with the ruling party, and only a minority were affiliated with the opposition party or work independently. The government did not devote sufficient resources to enforcement, particularly to the provision of training and resources to provide a functioning labor inspectorate.
In cases of collective labor disputes, the labor ministry’s Department of Labor Disputes first attempts to settle the disputes. The department refers unresolved cases to the Arbitration Council, a state body that operates on donated funds and interprets labor regulations in collective disputes–such as when a single entity dismisses multiple employees. In general, prior to a hearing by the Arbitration Council, parties may choose whether to consider the council’s decisions as binding or not. If neither party objects to the arbitral award within eight days of its issue, then the dispute is considered resolved.
Many of the cases that the Arbitration Council reviews were in the textile and apparel industry. The majority of council rulings were not binding following the expiration in 2014 of a 2012 Memorandum of Understanding between the Garment Manufacturers in Cambodia (GMAC) industry group and eight union federations, which committed factories and workers to accept the rulings of the council. Since 2014 the signatories to the memorandum met three times to consult with each other regarding labor law issues. Some unions urged the government to expand the role of the council to include individual and collective-interest disputes and to make its decisions uniformly binding.
The labor ministry’s official dispute resolution procedure calls for conciliation first, followed by arbitration. In practice, however, the resolution of collective disputes was inconsistent. The creation of a Committee for the Settlement of Strikes and Demonstrations to deal with strike-related disputes has led to jurisdictional uncertainty with the Department of Labor Dispute Resolution. In some cases the ministry declined to engage in legal dispute resolution procedures altogether, instead sending a letter to the court seeking intervention. In other cases the ministry referred cases to the Arbitration Council without required paperwork, thus leaving these disputes unresolved.
Individual labor disputes may be brought before the courts, although the judicial system is neither impartial nor transparent. There is no specialized labor court, but as mandated by the TUL, the labor ministry committed to establish such courts (called labor tribunals) under its own jurisdiction by 2017. Debate continued over the composition and function of these labor courts, and as of December 13, the ministry had not clarified the nature of their relationship to the Arbitration Council.
Workers reported various obstacles while trying to exercise their right to associate freely. Some employers reportedly refused to sign notification letters to officially recognize unions (a situation for which the government offered no official redress), or to renew short-term contract employees who had joined unions. Moreover, many workers were hired into the garment sector as subcontractors, making unionization difficult.
Organization among public-sector workers continued to face significant obstacles. For example, the Cambodian Independent Teachers Association is registered with the Ministry of Interior as an “association” due to prohibitions on public-sector unions, and the government denied its requests for permission to march and protest. Another public-sector association, the Cambodian Independent Civil Servants Association, claimed fear of harassment, discrimination, or demotion deterred individuals from joining.
There were credible reports of antiunion harassment by employers, including the dismissal of union leaders in garment factories and other enterprises. Better Factories Cambodia (BFC), an ILO and International Monetary Fund program that inspects all factories holding export licenses, noted in its May 2015 to April report that 6.8 percent of factories deducted union dues without the free consent of workers, or prevented workers from forming or joining a union without the threat of termination. BFC also found that 2.9 percent of the factories examined interfered with workers or unions when they draw up their rules, hold elections, and organize their administration, and 2.9 percent of factories made significant efforts to bring unions under company control. BFC’s coverage is limited to the export sector; the actual level of union harassment industry-wide was likely higher, including dismissals, especially of union leaders; abuse of short term contracts; and physical harassment. Human Rights Watch recently reported that garment workers laboring in unregistered factories–most often subcontractors for larger, export-oriented factories–were far more vulnerable to abusive labor practices that violate local and international law. According to Human Rights Watch, “Some of the worst problems we documented took place in these subcontractor factories, and there should be a stronger emphasis on expanding inspections to them.”
No one was held responsible for the violence perpetrated against union protesters in 2014, which left five dead and dozens seriously injured. Many in civil society did not deem the government committees established to investigate these attacks credible. The ILO urged the government to release its own findings and conclusions to public scrutiny.
Following violent labor protests in 2013, GMAC filed complaints in the Phnom Penh Municipal Court against six independent union federations, alleging the federations had incited workers to protest violently, resulting in damage to factory property and production. The court placed the union leaders under court supervision, barred them from joining or organizing any protests, moved them to a new address without notice, and ordered them to show up at a local government authority office on a monthly basis. As of December this order remained in effect. Criminal charges against the six independent trade union presidents were still pending as well. Worker leaders alleged that the politically influenced court continued to keep the cases pending to intimidate the independent union movement.
There were credible reports of workers dismissed on spurious grounds after organizing or participating in strikes. While the majority of strikes were illegal, participating in an illegal strike was not by itself a legally acceptable reason for dismissal. In some cases employers pressured either unionists or strikers to accept compensation and leave their employment by reasoning that their short-term contracts had ended.
The union movement did not generally believe that remedies for such dismissals were effective. For example, the labor ministry issued a number of reinstatement orders, but these often provoked management efforts to pressure workers into resigning in exchange for a settlement. At times management failed to obey court orders for reinstatement. For example, in July 2015 the management of Capitol Tour Bus Company dismissed five union leaders a few days after they sought approval from the ministry to form a trade union. They were never rehired, despite a July 30 Arbitration Council ordering their reinstatement. By August 2015, 45 union leaders and members at the company had been dismissed because of their trade union activity. In February thugs dressed in black clothing and wearing helmets brutally attacked protesting workers from the bus company.
b. Prohibition of Forced or Compulsory Labor
The law prohibits all forms of forced or compulsory labor.
The government did not effectively enforce the law in all cases. In particular government officials reported difficulties in verifying working conditions and salaries in the fishing, agricultural, construction, and domestic sectors due to the informal nature of their work. Penalties prescribed under law for forced labor were stringent, including imprisonment and fines. There was no evidence, however, of government efforts to highlight the issue of forced labor domestically. Moreover, there was some evidence that local law enforcement authorities were used by employers to keep workers in bonded labor, for example in the brick-making industry. Licadho cited several examples of such state intervention. In one case Licadho intervened on behalf of a young man who left his factory because the owner was taking all of his family’s earnings to repay their debt, leaving them entirely without cash. He went to a second factory where he tried to borrow money, but the owner of the first factory had police arrest the man’s parents and compel the son to return to work. In a second case, Licadho reported that a woman was working off a debt of 12 million riels ($3,000)–originally incurred by her son-in-law, but passed on to her when the son-in-law ran away from the factory. She wished to complain to police when her seven-year-old son was injured by factory machinery, but police told her if she filed a complaint, the factory owner would file a counter-complaint for immediate repayment of her son-in-law’s debt and she would go to prison.
Forced labor occurred in domestic service and in the informal sector. Children from impoverished families remained at risk because affluent households sometimes used a humanitarian pretense to hire children as domestic workers, only to abuse and exploit them (see section 7.c.). There were also reports of forced labor in the fishing, agricultural, and construction sectors.
BFC reported that six textile and apparel factories had cases of forced labor. Five of these cases related to forced overtime work, in which workers were required to obtain written approval from foreign supervisors before they could leave the factory. Workers complained they feared termination if they refused the overtime.
Also see the Department of State’s annual Trafficking in Persons Report at www.state.gov/j/tip/rls/tiprpt/.
c. Prohibition of Child Labor and Minimum Age for Employment
The law establishes 15 years as the minimum age for employment and 18 years as the minimum age for hazardous work. The law permits children between the ages of 12 and 15 years to engage in “light work” that is not hazardous to their health and does not affect school attendance. The law limits work by children between 12 and 15 years to no more than four hours on school days and seven hours on nonschool days, and prohibits work between 8 p.m. and 6 a.m. The government also bans the employment of children in sectors that pose major safety or health risks to minors. Minimum age protections, however, do not apply to domestic workers.
The labor ministry is responsible for child-labor inspections in both the formal and informal sectors of the economy. In practice labor inspectors did not enforce labor standards in the informal sector or in illegal industries, such as unregistered garment factories operating without a license from the labor ministry and the Ministry of Commerce. Within the formal sector, labor inspectors conducted routine inspections of some industries, such as garment manufacturing (where the incidence of child labor was negligible), but in some of the industries with the highest child-labor risk, including agriculture, construction, and hospitality, labor inspections were entirely complaint driven. As of 2014, the latest year for which such data were available, there were 58 inspectors in the labor ministry’s Department of Child Labor trained to conduct child labor inspections. Labor ministry interdepartmental inspection teams, consisting of eight inspectors from eight departments, including one from the Department of Child Labor, continued to operate. Only inspectors trained in child labor inspection actively sought out child labor violations.
The Department of Child Labor reported that budget constraints limited their inspections to areas in and around Phnom Penh. The number of inspectors remained insufficient to enforce relevant laws and regulations. The labor law stipulates a fine of 31 to 60 times the prevailing monthly wage for defendants convicted of violating the country’s child labor provisions. Such penalties were sufficient to deter violations but were rarely enforced.
Child labor was most widespread in agriculture, including in sugarcane production, brick making, salt production, shrimp processing, fishing, domestic service, rubber production, car repair, textiles, logging, slaughterhouses, and the production of alcoholic beverages. Children also worked as beggars, street vendors, shoe polishers, and scavengers. Instances of child labor also occurred in the garment, footwear, and hospitality sectors.
BFC reported that in the year ended in April, it confirmed 16 cases of child labor at the 381 factories covered in the report, a decline of 30 cases from the same period in 2015. Nonetheless, some children gained employment based on fake identity documents. These children worked full shifts, often with dangerous machinery. A 2015 media article reported about a 14-year-old girl who punched holes in 300 shoes per day and factory workers ages 16 or 17 who were required to work 15-hour shifts and were fired if they refused to work overtime more than once or twice.
d. Discrimination with Respect to Employment and Occupation
The law prohibits employment discrimination based on race, color, sex, disability, religion, political opinion, birth, social origin, or union membership. Two separate laws explicitly prohibit discrimination based on HIV-positive status. The law does not explicitly prohibit employment discrimination based on sexual orientation or gender identity, age, language, or communicable disease. The constitution stipulates that Khmer citizens of either sex shall receive equal pay for equal work.
The government generally did not have the capacity to enforce these laws. Penalties under law for employment discrimination include fines and civil and administrative remedies. Fines for workplace discrimination varied from 2.5 million riels ($625) to 3.6 million riels ($900). BFC reported that in the garment and footwear sector, factory management heavily discriminated against men with respect to hiring and benefits, generally without consequence. BFC’s May 2015 to April report found a 10 percent rate of employment discrimination by gender. Causes varied from factories being reluctant to hire men due to perceived behavioral problems, as well as discrimination against women due to concerns about pregnancy and/or maternity leave. The ILO noted with concern reports of antiunion discrimination by employers through interference and dismissals of members of independent unions, as well as through the creation of employer-backed unions. The ILO called for revised legislation to provide adequate protection against antiunion discrimination and sufficiently dissuasive penalties.
e. Acceptable Conditions of Work
The law gives the labor union authority to establish a minimum wage based on recommendations from the Labor Advisory Committee, a tripartite group composed of representatives from the government, unions, and employer organizations. In October the committee announced the 2017 monthly minimum wage for garment workers would increase to 625,500 riels ($156) from the current minimum wage of 560,000 riels ($140) based on a 48-hour workweek. The law does not mandate a minimum wage for any other sector.
The law provides for a standard legal workweek of 48 hours, not to exceed eight hours per day. The law establishes a rate of 130 percent of daytime wages for nightshift work and 150 percent for overtime, which increases to 200 percent if overtime occurs at night, on Sunday, or on a holiday. The law permits employees to work up to a maximum of two hours of overtime each day. The law prohibits excessive overtime, states that all overtime must be voluntary, and provides for paid annual holidays. Workplaces are required to have health and safety standards adequate to provide for workers’ well-being. The law specifies penalties, and factories are assessed fines according to a complex formula based on the severity of the infraction. Labor ministry inspectors are empowered to assess these fines on the spot, without the necessary cooperation of police, but there are no specific provisions to protect workers who complain about unsafe or unhealthy conditions.
The government did not effectively enforce hours and overtime regulations. Workers reported that overtime was often excessive and sometimes mandatory. Outside the garment industry, the government rarely enforced working hour regulations. Employers often coerced employees to work. Workers often faced fines, dismissal, or loss of premium pay if they refused to work overtime.
The government enforced existing standards selectively, in part because it lacked trained staff and equipment. Labor ministry officials readily admitted their inability to carry out thorough inspections on working hours. The ministry’s Department of Labor Inspection issued 183 warnings about violations in the first six month of the year, down from 197 warnings in the same period in 2015. It also levied fines on 19 entities, down from 29 in 2015. Although the ministry reported it employed 499 labor inspectors, the lack of financial resources, endemic corruption, and insufficient penalties hindered efficiency and the government’s enforcement of the law. Citing a lack of financial and human resources, the ministry did not conduct sufficient regular factory inspections. Although the ministry often decided in favor of employees, it rarely used its legal authority to penalize employers who defied its orders. For example, of 183 enterprises that received warnings about labor law violations from the ministry in the past year, only 19 received fines.
Work-related injuries and health problems were common. Most large garment factories producing for markets in developed countries met relatively high health and safety standards as conditions of their contracts with buyers. Working conditions in some small-scale factories and cottage industries were poor and often failed to meet international standards. The National Social Security Fund (NSSF) reported that during the first six months of the year, 16,080 workers suffered work-related injuries and 84 workers were killed. Of the 84 deaths, the NSSF reported that 66 died in traffic accidents. The NSSF did not make available any of its reports on fines or complaints against enterprises.
In its annual report covering the period from May 2015 to April, BFC reported that many areas related to occupational safety and health continued to be a challenge for garment factories and were often the result of a lack of proper policies, procedures, and division of roles and responsibilities. BFC reported that in 184 factories–50 percent of exporting factories–chemicals and hazardous substances were improperly labelled, stored, and exposed to workers. BFC found 166 factories noncompliant in required preparedness for emergencies such as fire or building collapse. BFC noted that 109 factories did not conduct emergency drills every six months, as required by law.
Mass fainting also remained a problem. The NSSF reported that during the first six months of the year, 285 workers fainted in six factories across the country while performing their jobs, down 47 percent from 538 fainting in the same period in 2015. There were no reports of serious injuries due to fainting. Observers reported that excessive overtime work, poor health, insufficient sleep, poor ventilation, lack of proper nutrition for workers, and toxic fumes from the production process all contributed to the mass fainting. Furthermore, commuting to work was dangerous for factory workers. The NSSF report highlighted that in 2015 there were 6,491 accidents involving 7,357 workers, in which 130 workers died and 1,068 were seriously injured.