Right to Collective Bargaining and to Strike in Cambodia’s Apparel Industry: A Legal Implication of the Labour Law and Law on Union of Enterprises

Abstract: This paper is designed to examine the implications of Cambodia’s labour legislation, namely the Labour Law and the newly adopted Law on Union of Enterprises on the exercise of the rights to collective bargaining and to strike in Cambodia’s apparel industry. Both laws are adopted by the Cambodian government in order to purportedly provide an effective and efficient safeguarding umbrella for workers in particular to exercise their fundamental labour rights, among others, including rights to form and join trade union, rights to function freely and bargain collectively, rights to stage a legal strike, and right to organise their activities without state’s interference, in a manner that is in line with international human rights law and international labour standards. The rights to collective bargaining and to strike are recognised in various international human rights instruments in which Cambodia is a State member, including the ILO’s Convention concerning Freedom of Association and Protection of the Right to Organise (No. 87) , ILO’s Convention concerning the Right to Organise and Collective Bargaining (No. 98) , UN’s Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The rights as such are also embodied in Cambodia’s supreme law, the Constitution, which fully pledges to guarantee all ranges of human rights safeguarded in international human rights instruments and renders unconstitutional and void any lex specialis which depart from the very essence of the Constitution itself. Nevertheless, de facto enjoyment of the rights to collective bargaining and to strike in particular and rights to freedom of association in general by Cambodian workers is increasingly weakened by several issues. One of the main issues concerning the exercise of the rights per se is the legislative measure adopted by the Cambodia’s government. The adoption of the highly contentious Law on Union of Enterprises (trade union law) as a complementary legislation and the implementation of the existing Labour Law are questionable. Ambiguities and insufficiencies in substantial provisions regarding the exercise of the rights to strike and collective bargaining is a major issue considering interpretation and application of the new legislation. Administrative requirements are also moving to the intrusive threshold which may be incompatible with the standards of the international labour rights instruments. Total discretion of power given to the administrative bodies are worryingly problematic in the case where the right and interests of numbers of trade unions in Cambodia are at stake. More importantly, de facto exercise of workers’ right to freedom of association in general and rights to collective bargaining and to strike in particular is not guaranteed due to numerous contextually surrounded challenges. The challenges faced by garment workers and their trade unions occur in various forms, including baseless criminalisation, arbitrary arrest and detention, the utilisation of short-term employment contract, attack on physical integrity, anti-union discrimination – workers dismissal, and endemic corruption. Therefore, this thesis concludes that the adoption of the new law on trade union and the implementation of existing labour law is just a legislative arsenal through which the government is capitalising to supress and silent the workers’ and independent trade unions’ voice in addition to the existing repressive tools, including the use of politically influenced judiciary and politically motivated criminalisation against independent trade unions, union activist and union leaders within the Cambodia’s growing apparel industry.