The draft Trade Union Law: restricting the right to association

Cambodia is edging ever closer to adopting a new law on trade unions, despite heavy criticism from workers, civil society organizations (“CSOs”) and relevant stakeholders.

The draft Trade Union Law (“TUL”) will be sent to the National Assembly for debate next Monday, on 04 April 2016. In a last-ditch attempt to dissuade the National Assembly from adopting this draconian law, independent unions have announced their intention to stage a large-scale protest outside the National Assembly on the day of the debate.

If passed in its current form, the draft TUL, which was approved by the cabinet on 13 November 2015, will impose arbitrary restrictions on the formation and operation of unions and, in so doing, will violate the rights of workers to freely join organizations of their own choosing (freedom of association) and to collectively bargain with their employers and local authorities. These rights are enshrined within international human rights law, which Cambodia is constitutionally obliged to adhere to.

As with the recent controversial Law on Associations and Non-Governmental Organizations (“LANGO”),[1] the draft TUL contains articles that render it “open to arbitrary or political-motivated interpretations by the courts”, insofar as it prohibits, in purposefully ambiguous terms, unions from acting “contrary to public order” and from causing “trouble with the only objective of being of service to a political tendency”.[2]

Despite the existence of comprehensive domestic and international legal frameworks that promote and protect human rights in Cambodia, in reality, the government, as evidenced by the recent introduction of laws such as the LANGO and the Telecommunications Law, does not shy away from reneging on its human rights obligations.

Trade unions have welcomed some changes in the most recent draft; most notably the lowering of the minimum number of workers required to start a union from 20 to 10 and the relaxing of the eligibility requirements for union leadership and criteria for obtaining “most representative status”. However, the draft TUL still fails to meet international labor law standards and, by calling for the mandatory registration of unions and enforcing limitations on union activities, infringes upon the ability of Cambodians to exercise their fundamental freedoms of association, expression and assembly. The draft TUL effectively criminalizes protests and demonstration by making it unlawful to “bring about a traffic jam”, demonstrating just how far the government is willing to go to crackdown on any form of political dissent.[3]

The provisions for a mandatory registration scheme and limitations upon the activities of unions provided for within the draft TUL irrevocably undermine Cambodia’s legal commitments under international human rights law. Such provisions violate the rights to freedom of assembly and expression; given that these are fundamental rights, Cambodians should not need to seek permission from the government before exercising them.

As Maina Kiai, the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association has affirmed, Individuals involved in unregistered associations should indeed be free to carry out any activities, including the right to hold and participate in peaceful assemblies”.[4]

Article 29 of the draft TUL provides cause for further concern, insofar as it allows for the dissolution of a trade union in the event of ‘misconduct’ of an individual leader. ‘Misconduct’ does not even necessarily entail criminal conduct, meaning the government will be able to dissolve a union simply if it does not like the actions of an individual leader. This is particularly worrying in the light of recent events in which trumped-up charges have been brought against union leaders for alleged criminal activity during protests and demonstrations.

The events of 08 February 2016 represent one especially alarming example of governmental suppression of trade union activity. Four independent labor organization leaders were charged with intentional violence, obstructing public officials and blocking traffic in connection to an on-going protest against Capitol Tour’s unlawful dismissal of 45 bus drivers. None of the leaders were even present at the protest. These charges are indicative of a systematic governmental campaign to restrict freedoms of assembly, expression and association in Cambodia.[5] To make matters worse, Article 29 does not provide for an appeal process for unions and employer associations that have either been dissolved or had their registration applications denied.

In reaction to the poor reception the previous draft TUL received amongst CSOs, labor organizations and human rights commentators, the government delayed the law’s proposal to the National Assembly and announced on 10 December 2015 the creation of a bipartisan committee to examine the law. Yang Sophoan, president of the Cambodian Alliance of Trade Unions, was one of many union leaders to voice concerns over the proposed TUL. She said the law “doesn’t protect the interests of workers or unions” and considered the requirement for unions to provide financial reporting particularly worrying.[6] The committee concluded its proceedings on 19 January 2016, having made very few amendments to the draft.

As it stands, the draft TUL fails to uphold the rights of workers as codified in a number of human rights treaties and calls from unions to bring the law closer to international labor law standards appear unlikely to be answered. If passed, it will have a devastating effect on the ability of Cambodians to exercise their rights to freedom of assembly and expression and will effectively ban protests, a mainstay of any democratic society.

Euan Black, CCHR International Intern

[1] Phnom Penh Post, ‘Assembly passes LANGO’ (14 July 2015) Available at: http://www.phnompenhpost.com/national/assembly-passes-lango

[2] Human Rights Watch, Cambodia: Revise Union Law to Protect Worker Rights (17 Dec 2015) Available at: https://www.hrw.org/news/2015/12/17/cambodia-revise-union-law-protect-worker-rights

[3] Human Rights Watch, Cambodia: Revise Union Law to Protect Worker Rights (17 Dec 2015) Available at: <https://www.hrw.org/news/2015/12/17/cambodia-revise-union-law-protect-worker-rights>

[4] Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, para. 56, U.N. Doc. A/HRC/20/27 (21 May 2012)

[5] CCHR, ‘Escalation of Violent Repression of Trade Union Activities’ (Factsheet) (March 2016) Available at: http://cchrcambodia.org/admin/media/factsheet/factsheet/english/2016_03_09_CCHR_Fact_Sheet_Escalation_of_Violence_Against_Trade_Unions_ENG.pdf

[6] Voice of America, ‘Labor Leaders Fear Union Law Will Pass Without Meaningful Changes’ (06 January 2016) Available at: http://www.voacambodia.com/content/labor-leaders-fear-union-law-will-pass-without-meaningful-changes/3133580.html

Setting Examples: Women in Leadership

GVeX

Participants from the Global Voices Exchange (#GVeX) in Marseilles, France

By Chak Sopheap

Earlier this year I had the opportunity to go on missions to Washington DC and Marseille and I was able to engage in valuable and constructive discussions with senior government officials and fellow civil society leaders. Besides this, I had the pleasure of meeting with some exceptionally impressive individual leaders who are unwaveringly committed to the promotion of human rights in their communities and I learned a huge amount from my interactions with these individuals. In particular, it was fantastic to meet with some extraordinary women leaders who are providing a shining example for women in leadership in civil society and more generally around the world.

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As part of my mission to Washington DC between 09 and 12 February, it was a privilege to be invited to the White House to meet with US National Security Advisor Susan Rice and nine civil society leaders from South East Asia as part of the ‘Stand with Civil Society: ASEAN Consultations’ in advance of the US-ASEAN Summit. The meeting was an excellent opportunity to discuss problems facing civil society and share experiences and strategies with fellow civil society leaders. Other than the senior level of the meeting, I was most struck by the exceptionally respectful, thoughtful and perceptive style of leadership and personality of Susan Rice during the meeting, which was at times fairly frantic. For example, Susan Rice repeatedly encouraged an activist from a country in which activists are often repressed to contribute her thoughts and experiences. She was reluctant to speak because some of the other participants in the meeting continuously tried to speak over her and also partly because of her country’s political culture. It was impressive to see how Susan Rice ensured all the participants at the meeting were given the space and opportunity to freely express themselves and her considerate approach to encouraging the discussion of diverse perspectives and experiences was remarkable. The perceptive leadership style of Susan Rice and the conscientious manner in which she conducts herself are truly inspiring and make her a wonderful example for women leaders around the world.

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Following the meeting, the US National Security advisor issued a statement reiterating the “United States’ steadfast commitment to sustaining and supporting civil society in Southeast Asia and around the world”.[1] In addition, I also had the opportunity to meet with other senior government officials, including Deputy Secretary Anthony Blinken, Assistant Secretary Tom Malinowski, and Deputy Assistant Secretary Scott Busby, and prominent human rights organizations, such as Human Rights Watch, the American Bar Association’s Center for Human Rights, the Center for Strategic and International Studies, and the International Center for Not-for-Profit Law. These meetings were very useful as we were able to discuss human rights abuses in Cambodia as well as the domestic and international strategies that can be used to challenge such violations. Alongside these meetings, I was invited to deliver a speech at an event organized by the association of Cambodian Americans for Human Rights and Democracy. With roughly 300 members of the Cambodian diaspora attending the Valentine’s Day celebration, it was the perfect opportunity for me to stress the importance of the active participation of every Cambodian citizen regardless of who and where we are, to give back to society and this could be the perfect expression of our solidarity and love. I was also interviewed by Voice of America Cambodia.

I then visited Marseille in France in order to attend an event focused on digital rights and advocacy. as part of Global Voices Exchange, ‪#‎GVeX, aimed at developing training and mentoring frameworks for the practice of advocacy, both online and offline, in the global south.

Throughout the five day training and mentoring program for advocacy strategies, I was lucky enough to meet with remarkable individuals who all shared the same passion and common values to support better governance, enable a healthy environment for civil society and empowering individuals to advocate for basic freedoms in their communities. Their determination and enthusiasm to make a difference and help to build a prosperous and liberal society in their communities was truly remarkable and I personally learned a huge amount from hearing about their experiences.

During both of these missions it was an honor to meet with a wide variety of inspirational leaders, from the White House to the activists gathered in Marseille. The determination of so many people with different backgrounds to contribute to the promotion of a liberal democracy and human rights in their own communities was very encouraging. It was especially impressive to meet with some extraordinary women leaders who conduct themselves in an extremely resolute and perceptive manner in order to ensure a wide variety of views and perspectives are properly heard.

Chak Sopheap is the Executive Director of the Cambodian Center for Human Rights

[1] Office of the US National Security Advisor, ‘Statement by National Security Council Spokesperson Ned Price on National Security Advisor Susan E. Rice’s Meeting with Southeast Asian Civil Society Leaders’, The White House, 11 February 2016 < https://www.whitehouse.gov/the-press-office/2016/02/11/statement-national-security-council-spokesperson-ned-price-national >