Thursday, 7 May 2009

Labour courts: the wishes of employers and unionists soon to be granted?

Baphnom (Prey Veng, Cambodia). 17/08/2007: High-risk environment workers in a stone quarry.©John Vink/ Magnum

By Duong Sokha

For once, Cambodian employers and trade unions agree on the necessity to create “labour courts”, a type of industrial tribunals which would be in charge of settling labour disputes and which creation is provided for in the Labour Code adopted... twelve years ago! The establishment of such institutions – called for by both employers and workers for over a decade – again featured at the top of the demands heard during the 123rd International Labour Day on May 1st 2009 in Phnom Penh. In the absence of labour courts, the responsibility to rule on disputes between employers and workers lies with ordinary courts, while collective cases are referred to the Arbitration Council. A system that satisfies no one: for unions, it does not guarantee respect for workers' rights; for employers, it only rarely provides legal and efficient solutions to dragging disputes. To comply with the Labour Code, the Ministry of Justice eventually ended up drafting a law on the organisation of the courts, which finally provides for the establishment of labour courts. But one unknown remains: the implementation date for this project, which adoption has still not been put on the agenda.

Ordinary tribunals: inefficient and corrupt, according to unions
Pending the establishment of labour courts, as provided for in the Labour Code in force in Cambodia, disputes on the application of this code are, theoretically, submitted to ordinary courts, as any other disputes. But in reality, workers only rarely dare to refer to an ordinary jurisdiction to argue their rights against rich employers, observe the leaders of the Cambodian main trade unions, who are more than wary of a judicial system they deem corrupt. According to them, going to ordinary courts results in a clear outcome: their decisions systematically favour employers.

“When we send applications on labour disputes to ordinary courts, [we note that] they do not have an in-depth knowledge of the Labour Code and relevant legislation. Therefore, their ruling is not based on these texts,” stresses Ath Thun, president of the Cambodian Labour Confederation (CLC), which gathers over 60,000 members in the garment and construction sectors, amongst others. “Most of the time, these courts shelve our complaints. And if they agree to issue a ruling, it is always in favour of employers. That is one of the reasons why we ask for the immediate establishment of labour courts,” the unionist says forcefully.

This opinion is shared by his colleague Chea Mony, who leads the Free Trade Union of Workers of the Kingdom of Cambodia (FTUWKC). He also denounces the inefficiency of ordinary courts. “Today, we have to refer to ordinary courts, but they appear to be inefficient due to their lack of independence and corruption,” rails the brother of charismatic leader Chea Vichea, assassinated in 2004. “And ordinary courts rather deal with individual disputes, whereas we want labour courts that can also rule on collective disputes between employers and workers, investors and staff, in all sectors,” insists the president of FTUWKC, which gathers some 85,000 members.

All parties in agreement?
As for employers, they have also kept demanding the creation of a jurisdiction that would allow, in complete independence, to put an end to disputes that drag on and sometimes degenerate, and most of all, whose rulings would be authoritative and respected. This claim was once again relayed to the executive branch by the employers representatives, through the working group on industrial relations during the 13th Government-Private Sector Forum in April 2008. Cambodian Prime Minister Hun Sen had then publicly expressed his support to this request, immediately asking the Council for Legal and Judicial Reform to work on a draft. Any contrary statement of the head of government would have been surprising: indeed, for the government, this only means complying with the Cambodian labour legislation adopted by the National Assembly on January 10th 1997, when Hun Sen already held the reins of power...

What functioning and organisation?
Articles 387 and 388, included in Chapter XVII of the Labour Code, officially create labour courts “that have jurisdiction over the individual disputes occurring between workers and employers regarding the execution of the labor contract or the apprenticeship contract” and which “organization and functioning (…) shall be determined by law.” Such wording leaves complete freedom to the legislator and encourages unionists and employers to make themselves be heard so that the new jurisdictions take their concerns into account.

“These [labour] courts must be independent, transparent and able to rule fairly on workers' labour disputes,” insists Ath Thun, who suggests a tripartite composition, “as it is the case in any country” with “representatives of the unions, employers and government.”

Cheat Khemara readily makes his these arguments. The high official in charge of labour disputes within the Garment Manufacturers Association in Cambodia [(GMAC) Website of GMAC] considers that the establishment of independent labour courts should contribute to ease social tensions and encourage workers to respect the law before starting detrimental demonstrations or strikes. “Ordinary courts have limited knowledge on labour disputes. Trade unions believe that ordinary tribunals are corrupt and they stand no chance of winning against rich employers there. Yet, in some cases, the ruling is in favour of the workers. But we are favourable to these labour courts that will make their decisions immediately. Also, we don't want to have to go to [ordinary] courts because that costs us a lot of money and it makes us lose time,” explains the representative of GMAC, which gathers over 270 garment factory owners, who employ more than 300,000 workers.

The Arbitration Council, established six years ago
Pending the creation of these industrial courts, employers and unions can settle their disputes before another jurisdiction than ordinary courts, the [Arbitration Council Website of the Arbitration Council] (AC). This independent institution is officially in charge of settling labour disputes after the failure of a prior conciliation procedure. Created in 2003 on the basis of the rules established by the 1997 Labour Code, the AC comprises, following a tripartite logic, representatives of unions, employers and the Ministry of Labour. It is composed of at least 15 members appointed by a Prakas of the Ministry of Labour for a one-year term and chosen among magistrates, members of the labour consultative commission, and in general, among personalities “known for their moral qualities” and who “possess relevant [economic and social] experience”.

This Council may therefore appear akin to an industrial court, but it is limited in several ways, starting with the fact that only collective cases can be referred to it, not a dispute that would concern only one or a few workers. Although union leaders recognise that it is already endowed with large powers, there is another important limitation: both employers and workers can question a decision of the AC, by informing the Ministry of Labour under certain conditions, and even in the cases where the AC has the authority to make binding decisions (it is the case if the disputing parties previously commit to comply with the decision, even if it turns out to rule against them), one of the two parties can still decide to ignore it and bring the case before an ordinary court, thereby nullifying the work of the AC.

A very criticised Council
For Chea Mony, the current mechanism is therefore nothing more than an instrument of the government meant to contain demonstrations and strikes. “If the two parties [employers and unions] do not uphold their commitments, they are normally able to oppose a decision, before a court. Generally, the employers are the ones who do not respect theirs. However, the Council has no right to order employers or workers to comply with its decisions,” the FTUWKC president specifies.

The CLC president makes the same observation of an AC that is powerless to implement its decisions. “Arbitral awards are generally not executed because even if employers refuse to comply with them, nobody punishes them. Cambodia is affected by corruption and in the garment sector, there is so much red tape... Moreover, people in power are usually behind garment factories,” Ath Thun deplores.

If Cheat Khemara agrees with the unionists on the necessity to set up labour courts, he rejects the accusations of the CLC leader. “Sometimes, the employers' rights are also flouted and therefore, they must also defend their interests. They file a complaint rather against strikes carried out without respecting the legal procedure. In about a hundred cases [among the strikes and demonstrations that take place in Cambodia each year], unions do not follow the legal procedure. We want each party to demonstrate willingness to apply the law without any party being pressured unfairly or by force,” the GMAC representative argues.

While acknowledging that everything is not perfect yet within the AC – in particular regarding the lack of means to implement decisions –, Sok Lor, executive director of the AC foundation, nonetheless expresses satisfaction at what the institution has achieved in its six years of existence, in dealing with complaints that originated in their totality from unions. Most of the disputes brought to the AC concern problems of salaries, dismissals of union representatives or employees and working conditions, he details. “What we know is that out of 700 files received by the Council since 2003, we have managed to resolve 68% of them. This rate reflects real success,” the official rejoices. However, Sok Lor also supports the creation, as soon as possible, of labour courts, and calls for a precise distribution of competencies between the AC and the future jurisdictions.

Ready at last?
The Ministry of Justice in collaboration with the Council for Legal and Judicial Reform has completed the drafting of a law on the organisation of the courts, which would create at least three new types of courts: trade, administrative and labour courts. The draft was submitted for review by the Council of Lawyers of the Cambodian Council of Ministers shortly before Khmer New Year, in April 2009, according to Sam Sokphal, Secretary of State for Justice and vice-chair of the Council of Lawyers. “This draft law is being reviewed at the same time as the one on the statute of magistrates. We have to sift through these two texts in order to contribute to legislative and judicial reform,” the legal adviser explains, saying that discussions are ongoing regarding the functioning of labour courts. Following two months of works within the Council of Lawyers, the draft will be submitted to interministerial review before its adoption by the Council of Ministers and a vote by lawmakers. “It is impossible for us to predict when [labour courts] will be created. We also want to see it happen as soon as possible, but this requires more than writing a couple of pages. Legal experts have to think about it,” the Cambodian Secretary of State for Justice argues. Twelve years after the adoption of the Labour Code, employers and unionists will still have to wait a little more.


The mission of the “labour court” clearly specified

Article 385 of the 1997 Labour Code lists the tasks of future labour courts within their mission to settle labour disputes:
- Order the reinstatement of a dismissed worker, by retaining his former position and paying him a retroactive wage.
- Nullify the results of a union election or the election of a shop steward.
- Order an employer to negotiate with a union or to cooperate with a union steward or a shop steward.
- Decide the payment for damages in favor of the party who won the case in the labor conflict.

No comments: