Key Recommendations

See the Full Recommendations section at the end of this report.

To the Ministry of Labor and Vocational Training (MoLVT)

• Ensure that workers can register trade unions through a simple, objective, swift and transparent process, while taking necessary measures to ensure that registration operates as a formality that does not entail discretion on the part of the authorities or prior authorization.
• Remove barriers to collective bargaining, including requiring prior Most Representative Status (MRS) certification, which is subject to burdensome, discretionary, and politicized procedures that prevent independent unions from obtaining such status to defend their members’ rights in dispute settlement processes.
• Stop issuing instructions that contain misinterpretations of Cambodia’s Labor Law, ultimately denying workers of their rights.
• Classify labor disputes involving unions as collective labor disputes by default to protect unions’ right to have their labor dispute effectively heard.

To the Ministry of Interior and Ministry of Justice

• Stop the use of court injunctions and sweeping arrests, detention, and criminal prosecutions of independent union leaders and activist members to restrict the rights to strike and freedom of association.

To the Royal Government of Cambodia

• Amend or repeal, in consultation with civil society, all laws that restrict the rights to freedom of expression, peaceful assembly, and association in contravention of Cambodia’s international human rights obligations, including but not limited to the Trade Union Law, the Law on Associations and Non-Governmental Organizations (LANGO), draconian public health-related laws (Law on Preventive Measures Against the Spread of COVID-19 and other Severe and Dangerous Contagious Diseases, and the Law on the Management of the Nation in a State of Emergency), and vague criminal code provisions that criminalize “incitement to commit offenses,” “public insult” or “insult of a public official.”

To the International Labour Organization’s Regional Office for Asia and the Pacific, and as Part of the UN Country Team in Cambodia

• Publicly condemn Cambodia’s continued non-compliance with key ILO conventions that protect freedom of association.
• Press for the ILO’s role as third-party observer in labor disputes to ensure fair and swift resolution of protracted labor disputes.

To the European Union

• Continue to urge the Cambodian government to meet the benchmarks set in the context of the partial suspension of Cambodia’s “Everything But Arms” trade preferences, and publicly condemn the government’s non-compliance with its human and labor rights obligations.
• Ensure the adoption of a strong EU Corporate Sustainability Due Diligence Directive (CS DDD) with civil liability for companies doing business in the EU and sourcing from countries like Cambodia, in line with their responsibilities under the UN Guiding Principles on Business and Human Rights.

To Employer Associations, including Chambers of Commerce and Sectoral Associations

• Monitor and intervene to ensure members of employer associations fully comply with orders from the MoLVT, particularly letters from the Department of Labor Disputes, or arbitral awards issued by the Arbitration Council, ordering reinstatement of trade union leaders. Publicly condemn and sanction, including by expelling, members who refuse to end anti-union discrimination.

To International Brands and Retailers

• Introduce business incentives for suppliers that respect workers’ freedom of association and collective bargaining; and prioritize the creation of in-country grievance redress mechanisms, including through legally binding agreements with credible local civil society groups and independent unions.

 

Methodology

This report was researched and written by a Human Rights Watch researcher between March and June 2022 in Phnom Penh, the capital, and Kampong Speu province.

Thirty-two interviews with 15 female and 17 male interviewees were conducted with local and federation union leaders, rank-and-file union members, and civil society representatives involved in supporting workers and unions. Twenty-three of the interviews were with local union leaders and rank-and-file members. Representatives of the Center for Alliance of Labor and Human Rights (CENTRAL), the Workers’ Rights Consortium, Solidarity Center and the Clean Clothes Campaign were also interviewed and provided information.

Human Rights Watch wrote letters to eight employers in eight key labor rights cases featured in the report (see appendix) and began engagement with brands that were currently or previously sourcing from factories where rights abuses occurred. We also wrote letters to the International Labour Organization (ILO) and the Garment Manufacturers Association of Cambodia (GMAC).

Participants were informed of the purpose of the interview, its voluntary nature, the ways in which data would be collected and used, and their ability to refuse to answer any questions. All interviewees orally consented to be interviewed. Participants did not receive compensation of any kind. Interviews were carried out in safe, private locations, and were conducted in Khmer, using an interpreter translating the answers into English.

Given that workers face potentially serious repercussions from the government for providing information about their workplaces to human rights organizations, some interviewees expressed fears for their security and well-being, and requested not to be named. In such instances, Human Rights Watch has honored their request and removed other identifying characteristics.

 

I. Background

The authorities don’t want unions that fight on behalf of workers and support workers. They want unions that think like the government.

—Nov Chantha, former local union president of Free Independent Trade Union Federation (FUFI) affiliate at Monopia factory, April 2022[1]

Workers’ struggles to join unions of their own choosing, especially where such unions are not aligned with the government or employers, has been a central feature of Cambodia’s larger human rights movement since the early 2000s.

In 1997, the Cambodian government adopted the Labor Law, giving effect to the constitutionally protected right to freedom of association and associated rights, such as the right to collective bargaining.[2]

Workers in the garment industry spearheaded unionization in Cambodia in the early 2000s, which a few years later spilled over to other industries, such as the hotel and tourism sector.[3] Political parties, both opposition parties and Hun Sen’s ruling Cambodia People’s Party (CPP), were involved in establishing major unions.[4]

Unions affiliated with the CPP or that employers strategically deployed to prevent the emergence of independent workers' representatives at workplaces are commonly referred to as “yellow,” or as recently coined by a local union, the Labor Rights Supported Union of Khmer Employees, “instant noodle” unions[5] —a reference to their speedy registration process (akin to making a quick cup of noodles).

In contrast, unions not aligned with the ruling CPP or employers and that operate independent of the ruling party or employers must undergo lengthy and burdensome procedures that often result in denial of registration.[6]

At the factory level, where there is more than one union, the power balance between independent unions and yellow unions is determined by the union that has the “Most Representative Status” (MRS)—a position that independent unions find very hard, and often impossible, to attain. Cambodian law requires the support of 30 percent of workers at the workplace to become eligible to apply for union registration.[7] Even where an independent union has 30 percent membership from among factory workers, the rules governing MRS only recognize a union with majority membership at the workplace and allows only a union with MRS to drive collective bargaining with the employer to provide for workers’ protection.

Overall, the independent union movement has long fought for living wages and better working conditions.[8] With unions’ efforts, the country’s only sectoral minimum wage in the garment and footwear sector has doubled over the years, from 2013 to 2019. Yet labor advocates have repeatedly criticized the fact that Cambodia’s minimum wage remains far below a living wage and unions’ demands.[9] Even before the onset of the Covid-19 pandemic and related inflation, living wage estimates for the garment industry in Cambodia varied between US$317 and $595 per month.[10] In 2021, local unions in Cambodia demanded $214 per month as minimum wages in the garment industry.[11]

In 2022, the minimum wage in the garment and footwear sector was $194 per month, an increase of only $2 compared to the previous year, leaving workers struggling to survive and pay off mounting micro-loan debts accumulated during the pandemic.[12] During the pandemic, the average loan size of Cambodians rose to about $4,200, almost three times the country’s average annual household income and amounting to the world’s highest average micro-loan.[13] Independent unions have criticized negotiations on minimum wage as lacking true union representation.[14]

Since the Law on Minimum Wage was adopted in 2018, consultations have occurred within the framework of the National Minimum Wage Council, a tripartite mechanism comprised of one-third union representatives and two-thirds employer and government representatives.[15] Among union representatives, independent unions make up just 2 out of 17 elected trade union representatives in the wage council.[16]

Systematic “Legal” Crackdown on Independent Unions

The Cambodian government uses multiple methods to crack down on independent unions. Over the years, government authorities have turned a blind eye to the assassinations of national union leaders Chea Vichea, Ros Sovannareth, and Hy Vuthy, and brutally suppressed wage protests in 2013 and 2014 with the deaths of at least seven people and injuries to dozens of others.[17]

The government has also used the law to crack down on independent unions by resorting to legislation and regulations related to union registration and rights of unions that severely restrict the rights to freedom of expression, association, and peaceful assembly in Cambodia and violate the rights of workers to collectively protect their livelihoods.[18]

One of these laws was the 2016 Trade Union Law (TUL) that introduced mandatory registration of unions and imposed restrictions on unions’ access to justice and collective bargaining by requiring Most Representative Status (MRS) (TUL, art. 54). Over the past seven years, access to justice for independent unions has been made virtually impossible.[19]

Cambodia’s politicized court system, controlled by the ruling CPP, has facilitated these efforts to bust Cambodia’s independent unions by prosecuting union leaders.[20] Where unionists are not or no longer jailed, these cases remain active, with most cases seeing prosecutions and convictions resulting in disproportionate prison sentences.[21] Dozens of independent unionists have dormant or active criminal charges against them that risk their arrest or rearrest, criminal convictions, and imprisonment based on bogus charges.[22]

The president of the Cambodian Labor Confederation (CLC), Ath Thorn, is among over 50 unionists with seven pending lawsuits for engaging in legitimate strike actions.[23] According to Ath Thorn, “Fourteen out 58 criminal cases [against union leaders] have had charges dropped, and all 41 cases brought by civil parties remain unresolved.”[24]

In December 2018, the government set up a working group to review pending criminal and civil lawsuits against union leaders and activist members.[25] Representatives of the local labor rights group, the Center for Alliance of Labor and Human Rights (CENTRAL), alleged that progress in purported expedited resolution of these cases has been slow, with most cases against smaller local unions still lacking resolution.[26]

Politically motivated trials of union leaders and activist members have been riven with serious violations of fair trial rights. Positive outcomes in politically motivated cases have largely only resulted from international pressure or intervention.[27]

 

Apart from hindering union leaders from conducting union activities, these criminal charges have created a sense of fear, causing unionists to be more cautious or have difficulties recruiting new members at work.[31]

Use of Force at Union Protests

Union and worker strikes, which have a long history in Cambodia, have been met with violence and bans by the authorities, similar to protests over land disputes.

Between 2010 and 2018, the nongovernmental organization the Armed Conflict Location & Event Data Project (ACLED)[32] recorded 642 worker protests in Cambodia, of which 59 percent were protests by garment workers.[33] Protests between 2010 and 2015 related predominantly to demands for increased minimum wage and better working conditions.[34]

After 2017 and before the onset of the pandemic, there was a significant drop in protests due to an array of repressive measures that the Cambodian government adopted that restricted workers’ and unions’ right to strike, and significantly restricted protests.[35]

Crackdown on Worker and Union Protests In January 2014, tens of thousands of workers demonstrated, demanding higher wages for garment workers in response to minimum wage negotiations in 2013 that they claimed were far below their desired target of US$160 (they only achieved $95).[36] These protests took place in defiance of a government ban on protests after contentious elections in 2013, which international observers had called neither free nor fair.[37] The protesters were met by riot police and military police armed with batons and electric cattle prods.[38] Tension between protesters and authorities escalated when military police opened fire on several hundred workers who were blocking a road in Phnom Penh, leaving at least four dead and dozens more arrested and injured.[39] Eight years later, those responsible for unlawful use of force have not been brought to justice.[40] In another example, violent clashes in February 2017 between members of the Cambodia for Confederation Development Association (CCDA), which is widely perceived as acting at the behest of employers, and dozens of former drivers of the Capitol Bus Company protesting their dismissal for trade union activities.[41] Witnesses said police at the scene failed to prevent or stop the violence. At least 14 people were injured. [42] Authorities arrested two protesters, and charged them with intentional violence, obstructing public officials and obstructing traffic. They also charged four trade union leaders for “incitement,” although none of them were present at the protest.[43] The four leaders arrested were: then-CLC president, Ath Thorn; then-general secretary of CLC, Kong Athit; president of the Cambodian Informal Economy Workers Association (CIWA), Sok Chhun Oeung; and the secretary of the Cambodian Transport Workers Federation (CTWF), Ean Kim Hong. Police arrested a former bus driver affiliated with CTWF and a union member of CIWA, who were charged with aggravated intentional violence, obstructing public officials, and obstructing a public road.[44] Members of the employer-friendly CCDA were not prosecuted.[45]

Impact of Crackdown on Cambodia’s Economy

The garment, footwear, and tourism sectors have been among Cambodia’s main drivers of economic growth, with the World Bank estimating their contributions to be 17 and 19 percent, respectively, of Cambodia’s real gross domestic product (GDP) growth in 2019. Together with construction, the three sectors provided 39 percent of total paid employment in 2019.[46]

According to the World Bank Group, garments, footwear, and travel goods are among five of Cambodia’s top exported products, accounting for 80 percent of Cambodia’s total exports.[47] As a result, the number of garment, footwear, and travel goods factories in Cambodia rose from 64 in 1997 to 1,218 in November 2020.[48]

Cambodian exports of garments, footwear, travel, and other goods are heavily reliant on access to United States and European Union markets, which take 69 percent of merchandise exports.[49] Yet tariff-free access to both markets is at risk due to the Cambodian government clampdown on the rights to freedom of expression, peaceful assembly, and association.

The ILO showed that in 2018, the garment and footwear sector employed over 800,000 workers, of whom 80 percent were women.[50] According to the Asian Development Bank, in 2019 the tourism sector employed 630,000 people, of whom 60 percent were female.[51]

The US, Japan, EU, Canada, the United Kingdom, China, and South Korea are among the largest importers of Cambodian garments, footwear, and travel goods, with export relations covered by bilateral trade agreements or preferential trade schemes.[52] As discussed below, both the US and EU generalized systems of trade preferences are, in theory, contingent on respect for human rights, including labor rights standards.

The Cambodian government’s intensified crackdown since 2015 resulted in the consideration or implementation of partial suspension of trade preferences by the EU and the consideration of a review of GSP preferences by the US.

 

Relevant Economic or Trade Preferences Important for Garment, Footwear, and Travel Goods Exports EU: The “Everything But Arms” (EBA) trade preferences regulated by Regulation (EU) No. 978/2012[53] granted to 49 least-developing countries, which have tariff-free access to the EU market for all their exports with the exception of arms and armaments.[54] A country can (temporarily) have its EBA preferences withdrawn if it violates the principles of 15 human rights and labor rights conventions underlying the EBA mechanism.[55] The commission has so far only decided to temporarily and partially withdraw Cambodia’s EBA preferences (see below).[56] US: The Generalized System of Preferences (GSP) program offered to Cambodia as a less economically developed country, providing preferential duty-free import of travel goods such as luggage, backpacks, handbags, and wallets, but not garments.[57] Cambodia must meet eligibility criteria established by the US Congress, including, but not limited to, respecting internationally recognized worker rights.[58] The program expired at the end of 2020 and needs reauthorizing legislation to come back into force. Japan: The ASEAN-Japan Comprehensive Economic Partnership (AJCEP) Agreement signed in 2008 to eliminate 92 percent of tariff rates on garments and textiles from ASEAN countries. [59] Canada: The Market Access Initiative for Least Developed Countries entered into force in 2003, allowing quota-free and duty-free access to the Canadian market of Cambodian products (except dairy, poultry and eggs)[60]; A separate Canada-ASEAN Free Trade Agreement is currently being negotiated with ASEAN members, including Cambodia. China: The ASEAN-China Free Trade Agreement, signed in 2020 to increase exports from Cambodia and investment in raw material supply for garment, footwear, and travel goods.[61] UK: Post-Brexit, EBA-like trade preferences exist under the General System of Preferences, which grant tariff-free access of goods into the UK, but subject to conditions and criteria, including provisions related to labor rights.[62] In 2023, the UK government is changing the name of its GSP program to the Developing Countries Trading Scheme (DCTS). South Korea: Bilateral free trade agreement signed in June 2022 to boost Cambodian exports of garments, textiles, and footwear to South Korea.[63]

On August 12, 2020, the European Commission announced the partial suspension of tariff-free export privileges that Cambodia derived from the EBA trade preferences. The decision came after the Cambodian government failed to comply with a list of demands by the commission to meet human and labor rights standards.[64]

Timeline of Suspension of Tariff-Free Export Privileges February 26, 2018: The EU Council adopts conclusions on the rights situation in Cambodia, urging Cambodia’s government to “cease using the judiciary as a political tool to harass and intimidate political opponents, civil society, labor rights activities and human rights defenders.” It invites the commission to enhance monitoring of the situation as delegated to it under the EBA.[65] February 12, 2019: The commission opens the procedure for withdrawing EBA trade preferences to Cambodia.[66] November 12, 2019: The commission submits a report to the Cambodian government demonstrating serious and systematic violations of key principles of the International Covenant on Civil and Political Rights (ICCPR) linked to political participation, freedom of expression, and freedom of association. Prime Minister Hun Sen slams the EU for making “unacceptable demands” and states Cambodia will rather pay tariffs than meet the commission’s demands.[67] February 12, 2020: The commission adopts a Delegated Regulation on a temporary and partial withdrawal of EBA tariff preferences granted to Cambodia,[68] based on findings the country has committed “serious and systematic violation of principles laid down in the core human and labor rights UN/ILO conventions.”[69] The withdrawal of preferential access to the EU market concerns around 20 percent of Cambodia’s exports to the EU.[70] Affected products include some garment and footwear products and all travel goods.[71] January 1, 2021: Legal authorization for duty-free treatment under the US GSP program expires for all GSP-eligible countries, including Cambodia. Goods entering the US market from Cambodia become subject to standard duties and tariffs; however, most companies incurring higher duties expect to be compensated retroactively when the program is reauthorized.[72] November 10, 2021: The US Department of State, the Department of the Treasury, and the Department of Commerce jointly issue a business advisory to “caution U.S. businesses currently operating in, or considering operating in, Cambodia to be mindful of interactions with entities involved in corrupt business practices, criminal activities, and human rights abuses.”[73] The advisory states that the US Trade Representative (USTR) will conduct an assessment of Cambodia’s GSP eligibility as part of a broader GSP evaluation.[74] The advisory claims the USTR aims at better compliance with eligibility criteria by beneficiary countries.[75] Current eligibility criteria include respecting worker rights including the right of association and to organize and bargain collectively.[76] The USTR’s assessment will be conducted “following reauthorization of the program benefits and will include any new or amended eligibility criteria established by US Congress.”[77] Until an assessment determines Cambodia is out of compliance with the program, goods can continue to be imported from Cambodia duty-free, with tariffs paid during the period the program lapsed retroactively paid back.

Lack of Robust Social Protection System

In 2020, the Covid-19 pandemic heavily affected tourism and manufacturing exports. According to the World Bank Group, Cambodia’s economy registered its worst performance since 1994, contracting by 3.1 percent.[78] The loss of employment and an inadequate social protection system pushed many people into poverty. According to the national poverty line in Cambodia, which stands at riel 10,951, equivalent to US$2.70 per person per day. about 18 percent of the population were considered to live in poverty in 2020—with a higher share of poverty in rural areas (23 percent).[79]

In early February 2020, Heng Sour, Ministry of Labor and Vocational Training spokesman, warned of garment factory suspensions or closures in March 2020 due to insufficient raw material imports following factory closures in China.[80] By early March 2020, more than 30 factories had suspended operations, affecting approximately 20,000 workers.[81] On April 28, 2020, the MoLVT announced that more than 130 garment factories had suspended operations, affecting nearly 100,000 workers.[82]

The impact on garment workers’ livelihoods were exacerbated by brands’ unfair purchasing practices in which some brands refused to pay suppliers for orders that were already completed or in production, leaving factories and workers in the lurch.[83]

Similarly, in the tourism sector, by March 2020, eight hotels had already closed in Siem Reap, the location of Angkor Wat, with another 20 not paying salaries to dismissed workers.[84] On March 30, 2020, Prime Minister Hun Sen ordered all casinos to be shut from April 1 to curb the spread of the coronavirus, and said they would receive tax exemptions while they were suspended.[85] In June 2020, the Siem Reap Provincial Department of Tourism reported that 172 hotels in the province had suspended operations.[86]

While announcing the mass layoff of 1,329 workers in April 2021, including union leaders and activist members, the NagaWorld casino also continued to pursue development of a US$3.5 billion new casino complex in Phnom Penh, called “Naga 3,” after earning $102.3 million in profits in 2020.[87]

The Cambodian government responded to the economic consequences of the Covid-19 pandemic with a series of relief programs to support furloughed workers.[88] Some furloughed workers received a monthly suspension allowance of $40 from the government. In the garment sector, workers received an additional monthly allowance of $30 from the employer. [89] In the tourism and garment sectors, workers also received a skills improvement training program. In addition, all households considered to live in poverty were eligible for a cash transfer program, regardless of work status or sector.[90]

However, the implementation of the relief programs, as well as eligibility criteria and enforcement, lacked transparency. In some cases, eligible workers did not receive the necessary support.[91]

In addition, labor rights advocates found that allowances were not enough for workers to sustain an adequate standard of living and to pay installments of mounting micro-loan debt.[92] As factories closed down during the pandemic, many furloughed workers had taken on more debt to cover lost income and make ends meet.

The failure of effective social protection was felt by all sides, but most acutely by lowest-income workers. The Garment Manufacturers Association in Cambodia (GMAC), for example, claimed that factory owners could not afford to pay co-support of $30 due to cancelled orders by brands.[93] Union leaders were concerned that GMAC was focusing solely on employers’ interests without adequately considering workers’ welfare.[94]

Under international human rights law, all workers have the right to social security.[95] However, Cambodia still lacks a comprehensive social protection system, including unemployment benefits.[96] On November 2, 2019, the Cambodian government adopted the Law on Social Security Schemes, which determines general principles, formalities, operational mechanisms and management systems around social security schemes such as unemployment benefits.[97]

The implementing procedures to give effect to unemployment benefits are still lacking. In 2018, the ILO estimated that over seven million Cambodian workers had no access to contributory social protection.[98] It has fragmented social insurance and assistance programs for the formal sector, which means that workers will only receive unemployment benefits from their employers in case of abrupt business shutdown. In 2007, the National Social Security Fund (NSSF) was established to administer basic social insurance schemes covering work injury, health insurance including sickness and maternity for workers in enterprises of more than eight employees, and since 2018, also workers in small-medium enterprises.[99]

The government’s new Garment, Footwear and Travel Goods Sector Development Strategy 2022-2027,[100] finalized in February 2022, recognizes the importance of social protection, including unemployment benefits, and notes among its objectives the need to:

Review the possibilities to expand the scope of social security scheme, currently provided by the NSSF to workers/employees based on the actual development in this industry, such as the possibilities to provide unemployment benefits insurance to workers/employees.[101]

 

II. Repression of Independent Unions

All I am doing is fighting for my rights and exercising these rights. If the authorities come to arrest me, then so be it.

—Chhim Sokhorn, secretary of the independent union, The Labor Rights Supported Union of Khmer Employees of NagaWorld, April 2022

Through repressive laws, old and new, and ostensible responses to the Covid-19 pandemic, Cambodian authorities together with many employers have sought to prevent independent unions from exercising their rights to freedom of association. This repression of independent unions has included threats, intimidation, and criminal prosecution and imprisonment, as well as other forms of harassment.

As with its other critics, the government accused independent unions of being involved in a conspiracy to topple it as part of a so-called Color Revolution, allegedly led by the dissolved opposition party, the Cambodian National Rescue Party (CNRP), and its mostly exiled leaders.[102]

Criminalization of Independent Unions

Human Rights Watch documented a pattern of cases in which authorities and some employers use Cambodia’s courts that lack independence and are government-controlled to bring politically motivated cases against independent union leaders and activist members.

International human rights bodies have long criticized the Cambodian government for severely restricting the rights to freedom of expression, the media, and assembly by resorting to “grounds of defamation, disinformation and incitement,”[103] which prescribe disproportionately harsh criminal sanctions. Agreements or contracts by police forcing activists to pledge that they will stop their activism or protest activities is strategically used to intimidate other activists from joining them in exercising their rights.

In 2019, factory management at Monopia travel goods factory in Kampong Speu province filed criminal charges against Free Independent Trade Union Federation (FUFI) President Soy Chanthou, and terminated local FUFI leaders Nov Chantha and Oeun Channy, for “incitement to commit a felony” (criminal code, articles 494 and 495) because of their union activities at the factory.[104]

The Kampong Speu provincial court initiated criminal proceedings on December 4, 2019.[105] In 2021, the court summoned the defendants individually for questioning. On August 22, 2022, the court held a trial hearing. The court delayed its verdict to an unspecified date. The court has yet to render a decision.

In August 2021, the prosecutor summoned three additional local FUFI union leaders and activist members—Mao Bunly, Phol Khoeun, and Bun Bros—in relation to yet another criminal complaint that Monopia factory filed, calling them to answer questions about their collection of thumbprint signatures to seek new union members at Monopia factory. This case also remains pending without formal charges, although a hearing can be scheduled, and formal charges imposed at any time. Soy Chanthou, FUFI federation president, said that he did not know what will happen with the case and why they faced incitement charges.[106] Monopia did not respond to Human Rights Watch’s letter and follow-up letters, requesting a response.

Employers Seek Criminalization of Local Union Leaders On April 2, 2020, Soy Sros, a local union president affiliated with the independent union, The Collective Union of Movement of Workers (CUMW) at Superl Holdings Ltd. factory, Kampong Speu province, was arrested for posting a message on Facebook that commented on dismissals at the company. Her post stated: Superl is disrespecting the recommendations of Hun Sen, the Prime Minister of Cambodian government, it terminated employment contracts of factory workers including a pregnant worker on the ground of lack of raw material due to Covid-19.[107] Soy Sros said that factory management asked her to delete the post the next day and demanded that she sign a letter stating her regret and accepting a formal warning, while admitting she had posted “fake news” on Facebook.[108] The factory accused her of “not respecting the principles of the factory because she took time during work hours to do something personal.”[109] She refused to do so. The following day, factory management called her to the office where police were waiting, and they took her to the police station for questioning.[110] She spent a night in a cell before being brought before a judge.[111] The factory had filed a criminal complaint with authorities based on allegations of “incitement.” Soy Sros was sent to pretrial detention[112] and spent 55 days in jail before being released on bail on May 28, 2020.[113] The case drew widespread condemnation, including from the international union federation, IndustriALL Global Union.[114] Following public campaigns, on June 13, the factory signed an agreement with the trade union stating that the charges against Soy Sros would be withdrawn, she would be reinstated in her position, receive full back pay for time spent in custody, and the factory would not retaliate against her, and would improve work conditions.[115]

On numerous occasions, Cambodian authorities have used the crime of “incitement to commit a felony” under articles 494 and 495 of the criminal code to target independent unions. For instance, authorities or factory management collected thumbprints of “complaints” from fellow workers to the Ministry of Labor and Vocational Training (MoLVT) or initiated criminal action on trumped-up charges against workers who participated in legitimate union activities, including strikes.

On December 31, 2021, police arrested nine leaders and activist members affiliated with The Labor Rights Supported Union of Khmer Employees of NagaWorld (LRSU) involved in leading the union’s strike action based on what they said were baseless allegations that they had affected “public order” and “social security.”[116] Authorities released four of them on January 3, who said they submitted to pressure to sign agreements prepared by the police, pledging they would not conduct any strike action in the future. Six others who refused to sign the pledges remained in jail.[117] The six union activist members were transferred to Phnom Penh’s prison facility, Correctional Center 2 (CC2), and, on January 3, 2022, the Phnom Penh municipal court charged them with “incitement.”[118]

On January 3, 2022, authorities arrested an additional 17 LRSU union activist members, including a pregnant woman, who took part in LRSU’s ongoing strike action.[119] On January 4, authorities released them after they said they signed agreements pledging to refrain from strike action in the future.[120] On January 4, 2022, authorities arrested LRSU leader Chhim Sithar, former NagaWorld employee Sok Narith, and LRSU member Sok Kongkea. On January 5, authorities granted bail to Sok Kongkea and charged Sok Narith and Chhim Sithar with “incitement,” sending them both to pretrial detention.

As part of the government’s efforts to use the pandemic as a pretext to further clamp down on independent unions, it resorted to the newly adopted draconian Covid-19 Law, overly broad and vague legislation that allows authorities to restrict rights such as ban protests (article 4) and punish alleged violators of Covid-19 measures, without any independent oversight or procedural safeguards.[121]

On February 5, 2022, police arrested six LRSU activist members—Seng Vannarith, Choub Channath, Sao Sambath, Ouk Sophorn, Touch Danet, and Em Kunthea—as they left a Covid-19 testing site, following government orders for strikers to get tested. While the workers were complying with these orders, the authorities nevertheless brought baseless charges against them for allegedly obstructing Covid-19 measures (Covid-19 Law, article 11 ).[122]

The police released three of them later that night, but held Seng Vannarith, Choub Channath, and Sao Sambath at the Phnom Penh police headquarters. On February 9, the Phnom Penh court charged them with “obstruction of Covid-19 measures” (Covid-19 Law, article 11), which carries a penalty of up to five years in prison and ordered their detention at Phnom Penh’s jail, Police Judiciaire.[123]

On February 5, 2022, authorities issued summonses for four other LRSU activist members, who had complied with Covid-19 testing requirements, to present themselves for questioning about alleged obstruction of Covid-19 measures.[124]

In mid-March 2022, ahead of the Direct Contacts Mission by the ILO’s Committee on Application of Standards from March 27 to April 1, the authorities released the 11 LRSU unionists on bail without dropping their charges, risking a trial, a conviction and imprisonment at the whim of the government and prosecutors.

The Phnom Penh prosecutor summoned two LRSU activist members, Net Chakrya and Sok Thavuth, for questioning on October 18 and 19 based on charges of alleged “trespassing,” “aggravated intentional damage” and “false imprisonment.” This summons followed a criminal complaint submitted by NagaWorld. The summons fails to specify when NagaWorld summitted the complaint, what actions by the two union activist members this relates to, or the exact provisions in the criminal code forming the basis of these charges.[125]

Threats against Independent Unions

Threats, including death threats and threats of imprisonment, against union leaders and activist members have been common and continued during the pandemic.[126] They are often privately communicated via social media and personal messages. Chhim Sithar, president of the LRSU, said that union members had been intimidated since the announcement of their strike action at the end of 2021:

Most of our activists are being followed by uniformed men and Facebook accounts of our members who post footage from our strike on Facebook Live are falsely being reported [to Facebook to remove content]. One of our members’ brothers received a death threat via Facebook messenger saying that if we don’t stop striking, someone will be killed and 20 more people will be put in jail.[127]

The intimidation and harassment take a toll on their families and worries them.[128] Sun Sreypich, an LRSU activist, said she worried about her mother who is an older person and who had called her every day since Sreypich’s release from jail in mid-March 2022: “I am not scared but my family is, and that has an impact on my mental state.”[129]

National federation leaders expressed fears about the security of their local union affiliate members. Soy Chanthou, FUFI federation president, said in relation to pending criminal cases against union leaders that “everything can happen,” and that he worried about the safety of his union members more than his own.[130]

These threats, while frequently not carried out and where online, are often anonymous or conducted through fake Facebook accounts.

 

III. Government and Employer Union-Busting

Hotel managers call me an anti-government person who incites workers to go on strike. Hotel managers don’t want workers to have a relationship with me.

—Touch Kosal, president of independent union federation, Cambodia Tourism Workers' Union Federation, March 2022

The Trade Union Law of 2016 has had a chilling effect on the ability of workers to unionize, which intensified during the Covid-19 pandemic. In addition to other barriers to freedom of association, Human Rights Watch documented cases that show that under the guise of Covid-19 retrenchment measures, government and many employers in the garment, tourism, and entertainment sectors violated the special legal protection enjoyed by unions during dismissals.

Employers alleged, without credible or at times any evidence, that union leaders and activist members were guilty of misconduct, which resulted in employers terminating their contracts without following due process-related protections outlined in the labor law. Employers also filed criminal complaints against union leaders and activist members based on trumped-up charges. Employers continued to overuse fixed-duration contracts to avoid union protection that requires prior authorization of any dismissal of union leaders or shop stewards by the Cambodian government.

Meanwhile, the government clamped down on independent unions, constraining their right to strike. District police and plainclothes officials frequently used violence against strikers, misusing public health measures to end legitimate, peaceful strikes.[131]

Undue Burden or Denial of Right to Form, Register, Join Unions

The Trade Union Law allows only registered unions to operate, making barriers to registration a tool to obstruct workers ability to form unions and target independent unions that are deemed to violate regulations.

Rights groups criticized the TUL as being both unconstitutional and contrary to international labor rights treaties that Cambodia has ratified.[132] Twenty-one global apparel and footwear brands including adidas, New Balance, Nike,[133] and other companies sourcing from Cambodia[134] also advocated for the TUL to be amended and brought into compliance with ILO standards.

Article 12 of the TUL imposes burdensome bureaucratic requirements for union registration, including several documents such as the submission of addresses for keeping of financial books and records, affidavits guaranteeing provision of bank account details within 45 days of receipt of registration, and minutes of the election establishing the union and lists of members.

Implementing ministerial order (“Prakas”) 249/16 on Registration of Trade Unions and Employer Associations also requires that unions submit photos and personal information of leaders, and declarations of literacy and absence of criminal convictions, as well as information regarding detailed biographical information of leaders, and grants a high degree of discretion to the MoLVT’s Department of Labor Disputes, which handles union registration requests, to reject union registration requests based on arbitrary grounds.[135] Touch Kosal, president of union federation, Cambodia Tourism Workers' Union Federation (CTWUF), said the nearly two dozen pages of forms and documents were “too much,” with “requirements too strict—when you write a letter wrong, the application is rejected.”

Article 18 of the TUL also empowers the MoLVT to file a lawsuit in court to revoke the registration of a union the MoLVT claims has not fulfilled its TUL obligations.

Independent unions told Human Rights Watch the process to form and register a union had become much harder since the TUL’s adoption.[136] The discretion of authorities during the union registration process allows for arbitrary refusals of registration of independent unions.[137]

In March 2017, the ILO conducted a Direct Contacts Mission (DCM) to Cambodia.

The ILO’s Committee of Experts on the Application of Conventions and Recommendations (CEACR) thereafter formulated recommendations in 2021, in which it highlighted concerns around “allegations of arbitrary denial of [union] applications and of introducing through regulations new requirements not set out in the law.”[138] It noted that the Cambodian government had acknowledged “the existence of confusion in relation to the registration process and the need to issue instructions (including to clarify that the registration forms issued were not obligatory) and adequately train the responsible officials.”[139]

The International Trade Union Confederation (ITUC) in 2017, noted that the government continued “to stop trade unions from performing their normal duties, by imposing excessive requirements on the obtaining and maintenance of registration (alluding, for example, to administrative hurdles for minor issues such as grammatical mistakes in the documents—and claiming that a very large percentage of trade unions were not able to meet the requirements to maintain registration).”[140]

The CEACR recommended that the Cambodian government amend the TUL, in consultation with the social partners, to “ensure that workers are able to register trade unions through a simple, objective and transparent process,”[141] and recommended that the government take “necessary measures to ensure that registration operates as a simple and swift formality that does not entail any discretion or prior authorization.”[142]

In its March/April 2022 DCM, the ILO reiterated that “practical hurdles to the formation and

functioning of trade unions particularly on trade union registration or recognition of their Most Representative Status (MRS), should be rapidly addressed. This would include simplifying the forms and ensuring that clear instructions are given to Ministry officials that only the requirements that are specifically set out in the law can be requested in order to grant registration.”[143]

The Cambodian government maintains that it had responded to the ILO’s recommendations by facilitating procedures and formalities of trade union registration by shortening the registration period from 60 to 30 days.[144] The government also pointed to numbers from March 2021 of “5,546 registered trade unions, of which 290 trade unions were registered after the amendment to the TUL [Trade Union Law], despite the COVID-19 pandemic,”[145] which it argues shows that unions were able to register. However, due to continued lack of transparency around the registration process, subsequent to its 2022 DCM, the ILO suggested that “an online database showing requests for registration, pending issues and final resolution can help for the transparency of the process and demonstrate the consistency of their application.”[146]

Touch Kosal, federation president of the independent CTWUF said that the MoLVT system for union registrations makes it difficult for unions to register because there are so many documents to prepare.[147] He recounted instances in which the MoLVT had gone through applications one page at a time, instead of the entire union application, requesting unions resubmit applications when they detect an “error.”[148] Kosal said the MoLVT told him that they are too busy to read through the whole application at once.[149]

Unions registering at businesses with more than 100 workers located in the provinces must submit their applications with the MoLVT in Phnom Penh, instead of provincial labor departments, a particularly burdensome process when documents need to be resubmitted.[150] This rule is not laid out in any ministerial orders yet is enforced by the MoLVT.

Ou Tephalin, president of Cambodian Food and Service Worker Federation (CFSWF), said that union registration processes have sometimes taken longer than a year, obstructing the union’s ability to represent workers.[151]

In addition to bias against independent unions and bureaucratic back and forth, the registration process is rendered more cumbersome by prohibiting federations to submit registration requests on behalf of their local, much smaller, affiliate unions.[152]

The bureaucratic process for union registration disproportionately impacts unions not affiliated with the ruling CPP and employers.[153]

Union leaders alleged that employers pressured activist union members who participated in union elections to “resign” from employment.[154] Touch Kosal said that Rosewood Phnom Penh Hotel management allegedly forced one worker to resign from the union after having participated in a union election organized by a CTWUF affiliate.[155] Subsequently, the MoLVT cited that person’s resignation as the basis to deny the union’s registration.[156] Workers were afraid to take part in subsequent union elections.[157] On May 25, 2022, Human Rights Watch wrote to Rosewood Phnom Penh Hotel seeking comment, but has not received a reply.[158]

Soy Chanthou, federation president of FUFI, shared similar experiences with respect to FUFI union elections in 2021, which prompted management at Monopia factory to pressure workers to “resign.” Chanthou said this was done to prevent the renewal of the union’s registration after its three-year mandate expired in February 2021.[159]

Human Rights Watch wrote to Monopia factory but had not received a response.[160] According to FUFI, such pressure from factory management targeting workers participating in the union’s four attempts to hold elections between February and October 2021 were directly responsible for the union’s inability to renew its mandate. Pol Khoeun, FUFI secretary at Monopia factory, said:

There are two ways for management to go about it. One, the management says to workers that if they don’t resign, they will find a reason to fire them. Or two, the factory gives the workers money. Factory management has pressured me to stop my union activities with FUFI, but the factory has understood that I cannot be bought.[161]

Mandate renewals of independent unions have created difficulties when union leaders have come under attack from employers and the government. Unions set their own mandate terms in their statutes, ranging usually between three and five years.

In April 2022, Chhim Sithar was reelected union president of the Labor Rights Supported Union of Khmer Employees of NagaWorld (LRSU), after the union leadership’s mandate had expired.[162] On June 6, 2022, the Department of Labor Disputes delayed the union’s registration, claiming it contradicted the TUL and the union’s statutes because a number of elected candidates and union members participating in the election were no longer employees of NagaWorld, including Chhim Sithar and other dismissed union activist members.[163] At time of writing, the MoLVT had not approved the union’s registration, and instructed NagaWorld to temporarily withhold union dues until LRSU’s new union mandate was registered.[164]

Human Rights Watch also received information from other union federations that experienced difficulties registering their local union affiliates during the pandemic. The Cambodian Alliance of Trade Union’s (CATU) attempts to register unions at Tripos International (Cambodia) Co. factory in Kampong Chhnang province were only successful after four or more union elections.[165] In all these cases, CATU reported that factory management threatened workers by calling them into the office and forcing them to thumbprint documents stating that they resigned from the union. Factory management then uses such documents as evidence to object to union registrations.[166]

Denial of Right to Strike

Since the passage of the TUL in 2016, labor advocates stated that the number of worker strikes has dropped, as it restricts organizing activities by unions on vaguely defined grounds, for instance making it illegal for a union to organize for “purely political purposes” or for “personal ambitions.”[167]

The UN Office of the High Commissioner for Human Rights (OHCHR) in Cambodia noted in its analysis of the TUL in 2016 that the term “for purely political purposes” is “dangerously susceptible to abuse, putting at risk the ability of unions to promote a position in the interest of their members if it should coincide with the platform of political actors.”[168]

The TUL strictly regulates the right to strike by requiring an absolute majority (at least 50 percent + 1 member) quorum for a decision and vote for a decision to go on strike or that an absolute majority of union members voting in a balloting process to call a strike (TUL, article 13).

The ILO Committee on Freedom of Association (CFA) has repeatedly held that a requirement that an absolute majority of union members is needed for calling a strike is onerous, seriously limiting the right to organize.[169] The Labor Law also requires that workers first take recourse to arbitration or engage in long and complex conciliation and mediation procedures before they can call for a strike.

The Cambodian government claims in its latest “Cambodia Garment, Footwear and Travel Goods Sector Development Strategy 2022-2027” that “very often” labor disputes “have led to illegal strikes and demonstrations causing the loss for both workers/employee,”[170] which shows government officials’ general reluctance to safeguard the right to strike.

Given the hugely onerous legal requirements under Cambodian labor law, which violate international labor rights standards, Human Rights Watch believes that Cambodian authorities have made it nearly impossible for workers to call for strikes.

Cambodia’s longest industrial action in recent history, despite the ongoing clampdown on unions, was organized by the Labor Rights Supported Union of Khmer Employees of NagaWorld (LRSU) in response to the months of failed negotiations to resolve their labor disputes. On December 18, 2021, the LRSU went on strike to demand reinstatement of 365 dismissed casino workers as part of a mass layoff of 1,329 workers announced in April 2021—also affecting union leaders—and fair compensation in accordance with the labor law. NagaWorld said the decision to lay off workers was due to economic losses, [171] at a time when the casino reported it was generating millions of US dollars in net profit.[172] Workers established their picket line outside NagaWorld casino in central Phnom Penh. Soon after the strike began, the Phnom Penh municipal court issued a court injunction declaring the strike action “illegal,” and ordered striking workers to resume work.[173] The court did not give the LRSU an opportunity to contest or respond to Naga World’s request to prohibit the strike prior to the court’s decision.[174] Police arrested more than 35 striking LRSU unionists between December 31, 2021 and mid-February 2022, with activists jailed on spurious charges. Police also raided the LRSU’s offices on December 31, 2021 without warrants, and confiscated union documents, computers, and the union leaders’ mobile phones were taken upon arrest.[175]

The ITUC has denounced the authorities’ use of court injunctions to preclude industrial action where unions have followed all required procedures.[176]

The Cambodian government has said they are justified due to an alleged “increase in illegal strikes by opportunist trade union leaders for their personal benefit.”[177]

On January 4, 2022, authorities used excessive force, beating and roughly moving LRSU leader Chhim Sithar, pushing her into a police car when she arrived at the strike site. Police said their use of force was necessary.[178]

UN rights experts,[179] international labor rights groups,[180] international trade union federations,[181] and foreign governments widely condemned the arrests of LRSU strikers.[182]

As part of compliance with Covid-19 precautionary measures and laws, LRSU strikers wore masks and maintained social distancing, according to numerous observers, including Human Rights Watch. On February 4, 2022, the Ministry of Health ordered several hundred strikers to take a Covid-19 test, after one striking union activist member, who had last participated in the strike on January 15, tested positive. [183] Cambodian authorities prevented several hundred strikers from moving to the strike site and ordered they board buses to be taken for compulsory Covid-19 tests at a makeshift testing site. Officials told the strikers that anyone who tested negative would have to self-isolate for seven days,[184] and that if they tested positive, they would be sent to a Covid-19 treatment center.[185]

Between February 5 and 6, over 400 protesting workers appeared as ordered at the designated testing site on Phnom Penh’s Diamond Island (Koh Pich).[186] Six union activists were arrested when leaving the testing site, with four other workers summoned for questioning, despite having complied with Covid-19 government measures by getting tested and isolating at home.[187]

The ILO tripartite CFA held that prohibitions of strikes during a national emergency, such as the Covid-19 public health crisis, should be limited in time, strictly necessary, and proportionate.[188] The committee also stated that the “responsibility for suspending a strike on the grounds of public health should not lie with the government, but with an independent body which has the confidence of all parties concerned.”[189]

On February 15, 2022, Phnom Penh city hall ordered striking workers to move to a location outside Phnom Penh city, far from the NagaWorld casino premises and management.[190]

Five international human rights experts[191] raised serious concerns around the misuse of public health measures as a disguise to crack down on peaceful and lawful labor action:

[a]uthorities appear to have dressed up efforts to stifle peaceful and lawful labour action as public health measures. … The manner that authorities have imposed restrictions on lawful and peaceful strikers based on public health concerns are unjustified, unnecessary and disproportionate in the given circumstances.[192]

To end the strike, Cambodian authorities started to use city buses to transport detained striking workers to the outskirts of Phnom Penh or to remote Covid-19 quarantine sites, and then stranded them there, without means to return.[193] After the visit and monitoring of the strike by the UN special rapporteur on the situation of human rights in Cambodia, Professor Vitit Muntarbhorn on August 17, 2022, Cambodian authorities stopped using buses to forcibly remove strikers, allowing them to strike in front of NagaWorld.[194]

In June 2022, Human Rights Watch wrote to the Japan International Cooperation Agency (JICA) raising concerns about Cambodian authorities using public buses donated by JICA to the Phnom Penh City Bus Authority to transport strikers to the outskirts of Phnom Penh.[195] These donations, provided between 2016 to 2018, were part of a grant program[196] of nearly 1.3 billion yen (US$9.7 million), involving 80 buses, that was signed on September 27, 2016. [197]

JICA responded on July 28:

The Japanese government and JICA have been in close contact on a daily basis with the Cambodian government, including about the human rights situation, and are working on this matter in an appropriate manner, but considering this is a diplomatic matter, we would like to refrain from commenting on the details of the communication.[198]

LRSU activist members reported several incidents of violence against strikers when forcing them onto buses. A video posted on Twitter on February 24, 2022, shows at least five uniformed police, accompanied by three men in civilian clothing—one of whom is holding a handheld portable two-way radio—pushing and dragging three female strikers onto a bus stairwell. Human Rights Watch verified the video by identifying the exact location it was recorded, searching online to find if earlier versions existed, and matching the bus’s interior with the buses financed by Japan.

Another video posted on Twitter on June 27, 2022, which Human Rights Watch examined and verified, shows uniformed police, assisted by individuals in civilian clothes, next to a crowd of strikers approximately 250 meters from NagaWorld. In the video, uniformed police are grouped at the back entrance of a bus, when a disturbance occurs between the police and strikers that causes the crowd to rush towards the bus. According to reports by civil society groups from this incident, the uniformed police were pulling, beating, and shoving protesters to force them onto buses to transport them from the strike site.[199] On June 27, 2022, security officers blocked UN OHCHR monitors from accessing strikers.[200]

Re Sovandy, a dismissed LRSU member who actively participated in the strikes in 2022, recounted several incidents of violence during the protests, including authorities slapping female strikers, kicking them, shoving them onto the bus that removed them from the picket, and pulling strikers from buses and onto the ground until they fainted.[201]

At Covid-19 quarantine centers, removed strikers were forced to sleep uncovered on the ground, without proper sleeping or bathing facilities. After testing all workers, LRSU activist members said authorities forced them to sign “pledges” that they would comply with health measures and not violate them again, would cease all illegal gatherings and demonstrations, and that the authorities would take action in case of “illegal activities.” Upon arrival, all workers were tested for Covid-19. Workers who tested positive were transferred to Covid-19 treatment centers.

The authorities fined some workers one million Cambodian riel (US$250) for allegedly violating Covid-19 measures as they had attempted to resume their strike.[202] LRSU activist member Chem Ratha described conditions at quarantine centers as “very dirty” and resembling a “rubbish dump”:

Only during the evening did they give us some food. The authorities said, if we didn’t sign a contract promising to refrain from protesting in the future, we couldn’t leave the site. So, some strikers signed it to leave because they were scared.[203]

Human Rights Watch wrote twice to NagaWorld management, in January and May 2022, to seek their comment. At time of writing, NagaWorld had not responded.[204]

Human Rights Watch received other reports from local partners about crackdowns on worker protests during the pandemic. The authorities arrested three union leaders at Can Sports Shoe factory in Kampong Chhnang, alleging that the more than 9,000 protesting workers were “inciters” and that they should only be allowed to submit petitions in their labor disputes, but not to protest.[205] Lawyers had not been permitted to meet with the union leaders. The authorities forced the union leaders to thumbprint pledges agreeing not to cause unrest in the factory.

In response to the sudden closure of Violet Apparel factory[206] in Phnom Penh, on July 1, 2020, without prior reasonable notice as required under Cambodian labor law, dismissed workers worried about losing their wages and severance payments protested outside the factory demanding payment of outstanding amounts they were legally owed. The MoLVT reacted not by taking action against the factory, but by issuing an official warning to the CATU federation head, Yang Sophorn, claiming that she had conducted illegal activities by organizing a demonstration in front of the factory. These included: “Leading and inciting workers to threaten and pressure the employer in order to receive payment of wages contrary to the spirit of the law and regulations related to the labor sector (Article 83 of the Labor Law),” and “Leading and pushing employees to meet together which is contrary to the guiding principles of the Ministry of Health to prevent the spread of COVID-19.”[207]

The MoLVT threatened CATU with possible deregistration if Sophorn did not cease the protest activities. A similar warning letter issued by head of the Department of Labor Disputes, Ang Sengly, on August 4, 2022, in relation to Sophorn attending a LRSU strike, stated that “the activities which you have previously committed regarding the dispute at NagaWorld are illegal activities.”

It demanded that she cease “illegal actions.”[208] The MoLVT accused her of violating TUL articles 65, 81, and 89, namely by “Leading a strike or demonstration contrary to legal procedures”; “Leading and conducting activities outside the professional or sectoral scope specified in Article 6 of your union federation’s statutes”; and “Leading and forcing workers to participate in a strike.” The threat of legal action continues to hang over Sophorn’s head.

Non-Renewal of Fixed-Duration Contracts, Unfair Dismissals of Union Leaders

Fixed-Duration Contract Used to Hinder Unionization

Cambodian labor law permits employers to engage workers either on open-ended contracts of undetermined duration (UDC) or on fixed-duration contracts (FDC) that specify an end-date. The Labor Law states that factory managers can issue short-term contracts and renew them one or more times for up to two years.[209]

While workers on FDCs enjoy many of the same benefits that workers on UDCs enjoy, they have lesser protection against dismissals and risk losing their seniority benefits that are calculated based on overall employment tenure.

Workers on UDCs and FDCs who have at least one year’s uninterrupted service in a factory are entitled to maternity pay and a seniority bonus. The seniority bonus increases annually and is directly linked to job tenure.[210] A key difference is that workers on FDCs are entitled to least 5 percent of their wages as severance at the end of each contractual period or when they are terminated.[211] Employers pay severance for UDC workers only at the end of their employment.

Workers on UDCs have longer notice periods and heavier penalties assessed against employers for unfair dismissals from work.[212] In contrast, employers can refuse to renew an FDC without having to give any reason.[213]

Employers and the MoLVT have acted contrary to Cambodian labor law and the Arbitration Council’s interpretations of article 67 of the Labor Law. Article 67 prohibits employers from engaging workers on FDCs beyond two years and that if they do, such workers are entitled to the same benefits and protections as workers on UDCs.[214] This includes pay in lieu of prior notice of dismissal, indemnity, and, if dismissed without a valid reason, damages.[215]

On May 17, 2019, the MoLVT enabled the extended use of FDCs beyond two years by way of “Instruction no. 050/19 on determination of the type of employment contract,” even though it appears to violate Cambodian labor law.[216] Labor advocates told Human Rights Watch that the MoLVT denies that FDCs are used to terminate trade union leaders and weaken the trade union movement.[217] Labor advocates consider the extended use of FDCs beyond two years deliberate anti-union actions by employers, and ultimately “an obstacle to the exercise of trade union rights.”[218]

Human Rights Watch’s 2015 report “Work Faster or Get Out”: Labor Rights Abuses in Cambodia’s Garment Industry showed that historically factories overused FDCs in ways that appear to contravene the Labor Law.[219] Employers have used FDCs to discourage workers from unionizing, and to sidestep special protections from dismissal enjoyed by shop stewards and union leaders under the TUL, requiring prior authorization by the MoLVT.[220]

The ILO’s 2018 annual “Better Factories Cambodia (BFC) program” report—the latest available report that provides detailed information on the use of FDCs—illustrated systematic non-compliance by factories owners with the maximum two-year period for FDCs.[221] The BFC report showed that almost 68 percent of examined factories were not in compliance, up from 35 percent non-compliance the previous year.[222]

While recent comprehensive numbers of how many workers in the garment and tourism or entertainment sectors are on FDCs beyond the legal limit of two-years are unknown, local labor advocates point to continued overuse.[223]

Labor disputes reported to Human Rights Watch that arose out of the pandemic showed violations of the use of FDCs and non-payment of legally owed severance benefits. Representatives from independent union federations and labor advocates claimed that workers on FDCs had been terminated even without legal notice as ostensible retaliation for their participation in union activities.[224]

During the pandemic, independent union leaders spoke about cases where there was no protection from anti-union discrimination during dismissals and their employers accused them of misconduct to avoid paying legally owed severance.[225]

Brands have an important role to drive improvements at the factory level using their business leverage. Fast Retailing’s response, for example, can be contrasted with the response of adidas and New Balance in a case that involved their supplier Trax Apparel. At the Trax Apparel factory in Phnom Penh, factory management did not renew the three-month fixed-duration contracts of three elected union leaders of the local union affiliated with the Cambodian Alliance of Trade Unions (CATU), Yon Yet, president; Him Rokei treasurer; and Kon Sokoun, secretary.

While the three union leaders had worked at the factory for one year, Yon Yet said that on June 26, 2020, factory management orally informed them they would be dismissed.[235] This followed Trax Apparel’s suspension of 620 of its factory workers employed on FDCs in April 2020, citing a lack of orders from brands during the Covid-19 pandemic.[236]

CATU told Human Rights Watch that Trax Apparel gave workers the option to resign immediately or be placed on a two-month suspension with a payment of US$30 per month, in addition to $40 promised to be paid by the Cambodian government.[237] In response, 252 workers chose immediate resignation; 368 workers chose the two-month work suspension, including the seven local CATU leaders and activist members to ensure the union’s presence at the factory was not affected.[238]

On April 4, 2022, CATU and Trax factory management reached an agreement in which the factory agreed to rehire Yon Yet, Him Rokei, Kon Sokoun, as well as Pom Sreymol, another CATU activist member, while four other unionists would not be reinstated, and to provide severance payments to eight workers.[239] Human Rights Watch wrote to Trax Apparel factory to seek their comment but did not receive a response.[240]

Other Unfair Dismissal Tactics to Bust Unions

Non-renewal of FDCs or unfair dismissals of independent unionists on FDCs were not the only dismissal tactics that employers used to bust unions during the pandemic.

Mass layoffs or retrenchment in response to the pandemic was also misused to dismiss union leaders and other senior workers. This approach to layoffs contravenes Cambodian labor law, which has also been embedded in BFC’s Guidelines on Responsible Retrenchment during the Covid-19 Global Pandemic.[241] The BFC guidelines, which quotes Cambodian labor law, sets out the obligation to inform and consult worker representatives during mass layoffs, the selection criteria during layoffs in light of a workers’ professional qualifications, seniority, and family responsibilities, while requiring dismissed workers to have priority at rehires within the following two years.[242]

Kong Atith, president of Coalition of Cambodian Apparel Workers Democratic Union (C.CAWDU), stated that during two years of the pandemic, factories dismissed 82 local union leaders and activist members affiliated with C.CAWDU and employed at 16 factories, in what he alleged were clear examples of anti-union discrimination.[243] He told local media that during these layoffs senior union leaders had been dismissed while “junior workers had been retained.”[244]

The Collective Union of Movement of Workers (CUMW) similarly told media that more than 1,000 of their union leaders and members had been laid off within a few months of the pandemic based on claimed economic impacts of the pandemic.[245]

Labor group CENTRAL said there were 18 cases at factories around the country between early 2020 and June 2022 involving union leaders and activist members who were unfairly dismissed.[246] These cases included dismissals based on unsubstantiated claims of having used drugs in the factory; of union leaders after having just formed a union at the factory; after posting labor dispute complaints on Facebook; after advocating for higher minimum wages; based on alleged claims of poor work performance[247]; and following organizing union strikes.[248]

In mid-April 2020, Roo Hsing Garment factory in Phnom Penh filed for the termination of three elected local union leaders affiliated with Cambodian Alliance of Trade Unions (CATU): Ek Sarun, vice-president; Sok Kong, secretary; and Kon Soch, elected assistant shop steward. Factory management alleged that the union leaders had orchestrated a work stoppage of 400 workers at the factory to counter a postponement of national holidays due to the pandemic. Yang Sophorn, federation president of CATU, and CATU’s local union leader at Roo Hsing, Ek Sarun, rejected these accusations, saying the union leaders had not organized, did not know about the strike, and were not among the striking workers.[249] Ek Sarun said:

[I] explained to factory management that I did not incite any workers. CATU did not even have any union members in the section that engaged in the work stoppage and so this has nothing to do with us. But factory management said that they saw me talk with Sok Kong, who only asked me about the postponement of holidays.[250]

CATU said that factory management did not share with the union any of its alleged evidence of wrongdoing.[251] CATU made numerous attempts to meet with factory management to ensure the unionists could present their case. CATU told Human Rights Watch that the factory managers asserted that they were not required to hold a meeting to hear the workers’ account before dismissing them because the local union did not have “Most Representative Status” at the factory. After a year of negotiation, the company offered to reinstate the unionists if they admitted serious misconduct. The union leaders said that they refused to make such admissions as condition of reinstatement. [252] A solution acceptable to the union had yet to be found.

Since April 2022, Roo Hsing Garment has gradually laid off workers, saying that the factory had to close because of a lack of new orders.[253] According to CATU, they have not yet been informed of a definite closing date for the factory.[254]

Independent union leaders alleged that they are frequently blacklisted, which ultimately prevents them from being rehired at other factories.[255] Chuon Thea, president of a local union at Roo Hsing factory affiliated to CATU, said: “It is difficult to get work at another factory because of our affiliation with CATU. Other factory employers will not hire us.”[256]

Dismissed CATU leaders at Violet Apparel factory expressed similar difficulties to find employment at other factories.[257] Similarly, dismissed local union leaders affiliated with FUFI also failed to find employment at other factories based on the assumption that they were blacklisted.

In April 2021, NagaWorld announced a layoff of 1,329 casino workers. Among those dismissed were three elected leaders and several activist members of the independent union at NagaWorld, The Labor Rights Supported Union of Khmer Employees of NagaWorld (LRSU). All dismissed unionists were employed on undetermined duration contracts.

According to a NagaWorld statement on January 23, 2022—before the layoff—the company had 8,371 employees, 3,976 of whom were union members (around 47 percent); after the layoff, the company had a total of 6,181 employees, 2,573 of whom were union members (around 41 percent)—a drop of around 1,400 union members (around one third).[258] LRSU union president, Chhim Sithar, said that NagaWorld management refused to engage in negotiations with the union to explain criteria by which workers were selected for redundancy or how severance payments were determined.[259]

Starting from May 17, 2021, the 1,329 dismissed workers began receiving termination notices from NagaWorld management, inviting them to meet with management. LRSU claimed that company management demanded terminated workers accept their dismissals and instructed them to write “resignation” letters to receive compensation packages from the company that were less than Cambodian law requires.

LSRU demanded that the method for calculating severance packages and average wages be based on months when workers had worked full hours and received full salaries, instead of basing it on their reduced wages since the Covid-19 pandemic, during the previous 12 months.[260]

On September 10, 2021, the Arbitration Council agreed with LRSU’s method of calculation of benefits.[261] LRSU also repeatedly urged NagaWorld to reinstate union leaders and other dismissed workers.[262] Human Rights Watch contacted NagaWorld in July and September 2021 for comment about repeated failed attempts at resolution of the dispute but did not receive a response.[263] Management formally terminated the workers on June 30, 2021, and union leaders and shop stewards were terminated on November 4, 2021, after the MoLVT authorized their dismissals.[264]

In another case of unfair dismissal, in July 2020, Le Meridien Angkor Hotel in Siem Reap terminated three union activist members affiliated with the Cambodian Tourism Workers Union Federation (CTWUF) for sharing a Facebook post about Covid-19 assistance provided to employees during the Covid-19 pandemic by another hotel, Angkor Miracle Resort & Spa.[265]

A settlement was reached in November 2020, but the hotel has since suspended its operation, with no date set for reopening.[266] It is not clear if the three unionists would be rehired if and when the hotel reopens.[267]

IV. Denial of Access to Justice

Independent unions in Cambodia have been systematically denied effective access to independent and impartial justice during conciliation at the Ministry of Labor and Vocational Training (MoLVT) and arbitration at the Arbitration Council.

Despite provisions in the Labor Law calling for the establishment of labor courts, the Cambodian government has never acted to establish them. As a result, the Arbitration Council is the only dispute settlement body that deals with collective labor disputes.

Barriers to accessing grievance redress and justice are manifold, including the restrictions resulting from the Trade Union Law of 2016, apparent misinterpretations by the MoLVT of instructions that the ministry issued, and more recently, the Arbitration Council avoiding ruling on issues that would challenge the MoLVT’s apparent misinterpretations or misapplications of the law.

The government’s latest “Cambodia Garment, Footwear and Travel Goods Sector Development Strategy 2022-2027” recognizes the need to strengthen available state-level dispute resolution mechanisms, including capacity-building of conciliators at the MoLVT, and strengthening the independence and effectiveness of the Arbitration Council.[268] However, the strategy fails to provide details on how and when these actions will be taken. Consultation with civil society groups has also been lacking in past legislative processes.[269]

“Most Representative Status” Hinders Access to Justice

Under the Trade Union Law (TUL), trade unions must seek “Most Representative Status” (MRS) to engage in collective bargaining—defined as the status given to majority unions.[270]

Yet independent unions struggle to meet MRS registration requirements, which are notoriously difficult to attain.[271] This left minority unions unable to represent their members in collective labor disputes before the Arbitration Council, “as the Ministry of Labor has refused to refer cases involving non-MRS unions to the Arbitration Council.”[272]

To be recognized as an MRS, a union should apply for certification by the Dispute Department in the Ministry of Labor. These certification procedures create additional barriers because they are subject to wide discretionary powers of government officials who are typically aligned with the ruling CPP.[273] The MoLVT-administered process to acquire MRS lacks transparency and imposes undue administrative burden on unions, often ending in failure to acquire MRS certification.[274]

In June 2021, the ILO’s Committee of Experts on the Application of Conventions and Recommendations (CEACR) requested that the Cambodian government take all necessary measures to:

Ensure that organizations that do not have most representative status (MRS) are not deprived of the essential means to defend the occupational interests of their members, such as making representations on their behalf and representing them in grievances (for example, before the Arbitration Council), including through the benefit derived from their affiliation to higher level organizations.[275]

On paper, the MoLVT’s Prakas No. 303 allows minority unions to represent their members in individual and collective labor disputes not arising out of collective bargaining agreements.[276] This was reiterated in an amendment to the TUL, promulgated in January 2020, which explicitly provides that minority worker unions can represent their members in individual disputes, as well as collective disputes not arising out of a collective bargaining agreement.

During conciliation meetings before the MoLVT, employers have tried to thwart workers’ representation by minority union leaders and their respective federation representatives, citing a lack of MRS. Similarly, some employers have repeatedly tried to thwart the ability of labor rights groups, such as the Center for Alliance of Labor and Human Rights (CENTRAL), from representing workers during such conciliation meetings stating that “they were not relevant to the dispute.”[277]

For example, in 2018, the Labor Rights Supported Union of Khmer Employees of NagaWorld (LRSU) had over 4,400 members out of a workforce of 8,000 at NagaWorld, making it NagaWorld’s largest registered union. In 2015, LRSU submitted its application for MRS to the MoLVT; however, upon repeated rejections of its application, the MoLVT claimed that documents were allegedly missing.[278] LRSU has yet to receive MRS.

NagaWorld management would not engage with the union in collective bargaining and dispute resolution due it its lack of MRS. LRSU said that during meetings with the company and conciliation before the MoLVT, LRSU was not allowed to make representations on behalf of its members. Chhim Sithar, LRSU president, said: “Terminated workers were denied their right to be heard and represented by their union. NagaWorld violated our freedom of association as a registered union with the Ministry of Labor.”[279]

There was no indication that NagaWorld made genuine efforts to resolve the labor dispute, according to the complaint that the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) filed on March 17, 2022, with the ILO CEACR in response to alleged violations of the right to freedom of association of LRSU.[280]

The complaint alleged the MoLVT had demonstrated a lack of understanding of issues of union representation in the redundancy process and the obligation of NagaWorld to engage in good faith negotiations with the union. The complaint further stated that the MoLVT’s refusal to recognize the MRS of the LRSU meant that during proceedings before the Arbitration Council, NagaWorld was not obliged to recognize the union or to respond to any of the evidence concerning anti-union discrimination in the redundancy process.

In the process of reviewing Cambodia’s compliance with ILO Convention No. 87 on Freedom of Association and Protection of the Right to Organize regulating the right to establish and join a union federation, the ITUC reiterated that the “refusal of the MoLVT to allow upper-level trade unions to represent or provide support to their members in collective disputes” amounted to a violation of articles 5 and 6.[281]

The LRSU case exemplifies the government’s efforts to deny MRS for independent unions.

Soy Chanthou, federation president of Free Independent Trade Union Federation (FUFI) said that the local union affiliate at Monopia factory was the biggest union at the factory with over 500 members and qualified for MRS. He believed that the reason for the inability to re-register the local affiliate at the factory is that factory management and the authorities know that they would have to issue MRS to FUFI.[282]

Cambodia’s Garment Strategy reflects the need to strength collective bargaining. However, without seriously addressing the issue of MRS certification for unions, it is unlikely to resolve the core of the problem that has resulted in a very low number of collective bargaining agreements in Cambodia and independent unions with MRS.[283]

Denial of Right to be Heard at Employer-Favoring Conciliation

Independent union leaders affected by employers’ anti-union discrimination said employers immediately sought MoLVT permission to terminate their employment, without issuing warnings or seeking to resolve disputes at company-level.[284]

They said that unfounded allegations served as grounds for dismissing union leaders, without respect for their due process rights, or allowing them to be heard, to refute allegations, or have proper representation.

A lack of effective and impartial conciliation by the MoLVT becomes a fait accompli during dispute resolution proceedings.

For example, federation leader of The Cambodian Alliance of Trade Unions (CATU), Yang Sophorn, said that management at Roo Hsing factory never presented any basis for its allegations that the three dismissed union leaders had incited workers to conduct a work stoppage, yet the MoLVT approved the terminations.[285]

Free Independent Trade Union Federation (FUFI) union leaders recounted similar experiences at Monopia factory when factory management dismissed, without due process, two local union leaders based on alleged, unsubstantiated misconduct; the MoLVT approved these dismissals.[286] Soy Chanthou, FUFI’s federation president, said that the union had filed a complaint with the MoLVT in response to the unfair termination of the union leaders, “but nothing ever came out of this and our union leaders were never given an opportunity to present their arguments.”[287]

Independent unions said MoVLT’s failure to follow procedures has denied them of their right to have their disputes heard, independently, and without bias.[288]

In its “Cambodia Garment, Footwear and Travel Goods Sector Development Strategy 2022-2027,” the Cambodian government admits that the Ministry of Labor “still lacks skilled officials (conciliators).”[289] The strategy sets out short-term measures for 2022-2024, which include to “strengthen the roles of MoLVT and other relevant institutions in dispute resolution mechanism at the factory, enterprise, and ministry levels, and promote the professionalism in participation of dispute parties, especially of the workers/employees’ side in settling labor dispute.”[290]

However, the strategy fails to indicate how these objectives will be achieved, reflecting the government’s lack of political will to improve respect for workers freedom of association and collective bargaining.

Within the context of the protracted NagaWorld labor dispute, LRSU union leader Chhim Sithar said the government allowed management—which rejected all union proposals—to avoid bargaining in good faith: “We had around 20 conciliatory meetings with NagaWorld and there is no sight of a resolution to the labor disputes because NagaWorld rejects all of our proposals to resolve the dispute.”[291]

According to LRSU, NagaWorld reportedly rejected a LRSU proposal that could resolve the labor dispute in a constructive manner. Specifically, LRSU sought the rehiring of approximately 200 laid-off casino workers (including several union leaders and activist members) in exchange for the voluntary resignation of an equivalent number of workers currently employed at NagaWorld.[292]

The ILO intervened at several stages of the NagaWorld labor dispute, including a letter from the director-general of the ILO to Prime Minister Hun Sen on January 5, 2022, condemning the arrests and detention of LRSU union leaders and activist members and calling for their immediate release. Those who were imprisoned were subsequently released but the overall dispute remained unresolved.[293]

According to Chhim Sithar, the continued absence of a resolution to the labor dispute shows “authorities have not shown any interest in helping to resolve the dispute.”[294]

A Politically Compromised Arbitration Council

The Arbitration Council, established in 2003, plays an important role in resolving collective labor disputes. Under Cambodian labor law on collective disputes, where conciliation by the MoLVT fails to resolve the dispute, the Arbitration Council “legally decides on disputes concerning the interpretation and enforcement of laws or regulations or of a collective agreement."[295]

The Arbitration Council’s fairness and independence from the MoLVT has been compromised since the TUL was adopted in 2016.[296] Since the TUL passed in 2016, the number of cases that the council has heard has plummeted from 242 in 2015[297] to just 44 in 2021.[298]

Upon failure of conciliation proceedings, the MoLVT determines in its non-conciliation report the issues referred to the Arbitration Council.[299] Around 2015, after numerous strikes and protests by workers and unions for better working conditions in 2013 and 2014 and the adoption of the TUL in 2016, the Cambodian government’s intensified crackdown on independent unions also saw a shift in the MoLVT’s attitude regarding classification of labor disputes and issues forwarded to the Arbitration Council.[300] 

Relevant in this context was also a two-year Memorandum of Understanding (MoU) signed by the garment employer association, Garment Manufacturers Association in Cambodia (GMAC), and eight of union federations and confederations, among others the Cambodian Association of Trade Unions (CATU).[301] The 2012-2014 MoU was a bid to reduce work stoppages resulting from strikes.

The MoU formalized an agreement between the signatories that, on the one hand, unions would only strike as a last resort and not during pending arbitration proceedings and, on the other hand, employers would comply with decisions rendered by the Arbitration Council—which as such are not legally binding.

While employers continued to fail to comply with arbitral awards, the MoU did provide an incentive for the MoLVT to forward union cases, which are inherently collective disputes as they do not only impact individual workers, to the Arbitration Council.[302] After 2014, unions’ calls for renewal of the MoU were left answered from the employers’ side.[303]

After 2015, the MoLVT stopped forwarding union cases to the Arbitration Council that related to unfair dismissals of union leaders based on the argument that these were individual labor disputes. This was demonstrated by the Roo Hsing factory case, arising in 2020, which prevented a ruling on the reinstatement of three unfairly terminated union leaders.[304] Until the recent amendments to the Labor Law and until these are effectively implemented, a classification of a dispute as individual would prevent a case reaching the Arbitration Council.

Labor group CENTRAL illustrated the impact of misclassifications with the example of a labor dispute at Cintri Cambodia waste collection company, following a mass layoff in early 2022 affecting 117 workers. The MoLVT separated the case into 117 individual disputes instead of classifying this as a collective dispute.[305]

While the amendments to the Labor Law adopted in October 2021 will now extend the jurisdiction of the Arbitration Council to allow individual labor disputes to come before it, independent unions are still skeptical about how the process will look.

Yang Sophorn, federation president of CATU, said the new amendments to the Labor Law “look good on paper” but, she does not think that the MoLVT will start sending all individual labor disputes to the Arbitration Council, especially those related to unfair dismissals of union leaders.[306]

The government has still not promulgated ministerial orders (“Prakas”) to give effect to the amendments. To date, neither the MoLVT nor the wider Cambodian government has stated clearly when such Prakas may be adopted. Labor leaders also question how the Arbitration Council will be able to address all these individual disputes, creating a backlog of cases.[307] The numbers of cases could rise to 700 individual cases per year, which many observers believe would be impossible for the Arbitration Council to handle.[308]

Independent union leaders also raised concerns that if arbitral awards in individual cases are not legally binding, expansion of the Arbitration Council’s jurisdiction is pointless.[309]

Under Cambodian labor law, the Arbitration Council’s full panel of arbitrators are nominated by unions, employer associations, and the MoLVT and placed on lists by the MoLVT prepared each year by a MoLVT Prakas.[310] There are currently 30 appointed arbitrators.[311] According to article 311 of the Labor Law, parties to the dispute choose two arbitrators from the list of arbitrators, and these two arbitrators choose the third one from the list, providing for three arbitrators per case.[312]

Yang Sophorn, federation president of CATU, said the Arbitration Council was

scared of the Ministry of Labor and that is why unions have been unable to receive justice. The Arbitration Council says that it has no jurisdiction to rule on issues…. I am disappointed with the Arbitration Council for not challenging the Ministry of Labor.[313]

Labor advocates expressed concern that despite Cambodian labor law allowing the Arbitration Council to interpret the law, the Arbitration Council had begun self-censoring and had stopped rendering rulings on specific issues based on alleged lack of jurisdiction.[314]

This had begun in cases related to determinations on fixed-duration contracts. A long-time labor rights advocate, who asked to remain anonymous out of fear of reprisals, said that tension since the 2019 MoLVT instruction No. 050 that allows for renewal of fixed-duration contracts beyond the two-year period—which directly contradicts the Labor Law and other interpretation by the Arbitration Council—has led the council to stop ruling on the issue. The advocate said:

These conundrums of the Arbitration Council having to rule against the Ministry of Labor creates situations where the Arbitration Council decides not to rule on substantive issues that leave unions without protection and access to justice in their disputes. What arbitrators should do instead of refusing to rule is to issue dissenting opinions.[315]

In the past, there have been a couple of cases before the Arbitration Council in which dissenting arbitrators issued objecting rulings where the majority claimed there was no jurisdiction to rule on issues.[316] The objecting arbitrators would rule that the Arbitration Council did in fact have jurisdiction to rule because the Labor Law provides that the council has jurisdiction to rule on collective disputes forwarded to it by the MoLVT.[317]

In the Violet Apparel case, a factory of roughly 1,300 workers suddenly announced its closure in July 2020. Union leaders from the factory said that none of the workers had received notice of the factory closure as required under the law. Human Rights Watch wrote to Ramatex Textiles Industrial, the parent company of Violet Apparel in May 2022, seeking its comment, but had not received a response. 

Following Violet Apparel’s closure, workers raised a collective dispute before the MoLVT. But no conciliation was reached at the MoLVT and the case was referred to the Arbitration Council.

In November 2020, the Arbitration Council claimed a “lack of jurisdiction” and declined to rule on workers’ demand for compensation in lieu of prior notice when factory management informed them of their dismissal with less than 24 hours’ notice.

Cambodian Labor Law expressly requires notice periods according to the length of workers’ continuous employment and for dismissed workers to receive damages if they are dismissed without valid reason to compensate workers with the amount equal to the wages and all kinds of benefits that the worker would have received during the official notice period (Labor Law, article 77).[318]

New article 87 of the Labor Law restricts the ability of workers to receive damages in the event of business closure if the employer complies with the conditions of a ministerial order issued by the MoLVT in 2001 regulating that businesses should notify the MoLVT about all “changes in location, adjustments in production structure, changes in ownership and closure or termination of enterprise activities no longer than 30 (thirty) days after the day of the change or after the day of ceasing enterprise or establishment activities.”[319]

The Arbitration Council has previously ruled that compliance with this instruction is not sufficient to release an employer from their obligations regarding compensation in lieu of prior notice and damages.[320] This reflects Cambodian law, as there is no provision in the law that would relieve employers of these obligations in the event of factory closure, even if they suspended workers prior to closure in accordance with Cambodian law.[321]

In the Violet Apparel case, the Arbitration Council avoided ruling on the issue as it would have had to rule against the MoLVT.

ILO Convention No. 158 on Termination of Employment also requires employers to provide compensation where workers are not provided reasonable notice of termination, and their termination is not on grounds of serious misconduct.[322]

In response to recommendations issued in 2021 by the ILO’s CEACR, the government made commitments “to strengthen the Arbitration Council” and to adopt necessary measures “to ensure that its awards, when binding, are duly enforced.”[323] To date, arbitral awards are binding if neither party objects, or when the parties agree in writing to be bound by it, or if the parties have a collective bargaining agreement that provides for binding arbitration.

Cambodia’s latest Garment Strategy sets out measures for 2022-2024, including to “continue to strengthen the role and provide necessary support to the mechanism and process of the Arbitration Council to continue to remain professional, neutral and independent in settling labor disputes in accordance with the amendment of the Labor Law related to labor dispute resolution, including individual labor disputes.”[324]

While recognizing that there is need for reform, the strategy fails to address how and when these objectives will be achieved.

 

V. Global Solutions Needed to Respect Workers Freedom of Association and Collective Bargaining

During the Covid-19 pandemic, Cambodian workers had been left in vulnerable and precarious situations with respect to their livelihoods when factories suspended or permanently closed their businesses and legally owed severance payments were not paid to workers.

The pandemic has highlighted the need for international brands and global hotel chains to carry out human rights due diligence when conducting business or have a part of their supply chain or affiliates, in Cambodia.[325] Such due diligence should be ongoing, and identify potential adverse human rights impacts and ways to prevent them.[326]

Human Rights Obligations of Businesses

The basic principle that businesses have a responsibility to respect worker rights has acquired widespread international recognition.[327] The “Protect, Respect and Remedy” framework, articulated most notably in the UN Guiding Principles on Business and Human Rights, reflect the expectation that businesses should respect human rights, avoid complicity in abuses, and adequately remedy them when they occur. The UN Guiding Principles urge businesses to exercise due diligence to identify, prevent, mitigate, and account for the impact of their activities on human rights.[328]

The Organization for Economic Cooperation and Development (OECD) sets out norms for responsible social behavior by multinational firms, incorporating the concept of due diligence and the content of International Labour Organization’s (ILO) core labor standards. The OECD guidelines call on enterprises to respect human rights, “avoid infringing on the human rights,” and address adverse human rights impacts of their activities. This includes conducting “human rights due diligence” and working to remedy any negative fallout they have caused or to which they have contributed.[329]

To meet their human rights responsibilities, Cambodian suppliers should respect workers’ freedom of association and collective bargaining. These include stopping the misuse of fixed-duration contracts (FDCs) and the targeting of independent unions through spurious cases and blacklisting.

Brands sourcing from Cambodia should embed business incentives for suppliers who respect workers freedom of association and collective bargaining, and supplement their codes of conduct with in-country operational grievance redress mechanisms.

In particular in the Cambodian context, brands should engage with the Cambodian government to strengthen and safeguard the independence of the Arbitration Council and ensure that minority unions are able to bring collective disputes before the council. Brands should also recognize that the Trade Union Law (TUL) violates international labor rights standards, and the Arbitration Council is politically compromised. [330]

Operational Level Grievance Redress Mechanisms

In the Cambodian context, international brands and hotel chains should ensure that grievance mechanisms are in place in their supply chains or their affiliates to ensure freedom of association is respected at the company level, also in country contexts in which access to state-level dispute resolution mechanisms is unavailable.

Brands’ human rights due diligence “should be ongoing, recognizing that the human rights risks may change over time as the business enterprise’s operations and operating context evolve.”[331] Brands also have a responsibility to “establish or participate in effective operational-level grievance mechanisms for individuals and communities who may be adversely impacted.”[332] Such grievance mechanisms “support the identification of adverse human rights impacts as part of an enterprise’s ongoing human rights due diligence.”[333] Operational-level grievance mechanisms should reflect the effectiveness criteria outlined in the UN Guiding Principles and should be legitimate, accessible, predictable, equitable, transparent, rights-compatible, a source of continuous learning to improve the mechanism, and whose design and performance is based on engagement and dialogue with “stakeholders’ groups for whose use they are intended.”[334]

 

VI. International and Domestic Legal Standards

Cambodia is party to numerous international conventions governing human rights and labor rights. Cambodia’s Constitution recognizes the right of Cambodian citizens “to create unions and participate as their members.” The Constitutional Council of Cambodia interpreted in its decision on June 19, 2007, that international conventions ratified by Cambodia are to be taken into account when applying national law.[335]

International Legal Standards

Cambodia acceded to the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1992. Cambodia has also ratified 13 International Labour Organization (ILO) conventions, including all the core labor conventions: the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), Right to Organize and Collective Bargaining Convention, 1949 (No. 98), and the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).

Freedom of Association

The ICCPR protects the right to freedom of association. Both the ICCPR and the ICESCR, along with the relevant ILO conventions, guarantee the right to join trade unions. These, together with the authoritative interpretation of the ILO core conventions overseen by the ILO Committee on Freedom of Association (CFA),[336] obligate governments to ensure that employers do not thwart union formation and participation.

ILO Convention No. 87 provides that workers have the right to join organizations “of their choosing without prior authorization” and authorities should not engage in any interference that would restrict this right or impede its enjoyment.[337]

Laws and regulations governing unions should not restrict union formation.[338] States are free to prescribe legal formalities for establishing unions, but they cannot abuse this freedom by prescribing formalities that impair fundamental labor rights guarantees.[339]

The right to organize includes the right to official recognition through registration.[340] But a registrar cannot have absolute discretion to refuse registration, even if the law guarantees workers the right to appeal the registrar’s decision. The law should clearly specify the conditions for union registration and the grounds on which the registrar may refuse or cancel registration.[341]

Government procedures that result in undue delays to registration are an infringement of workers’ right to organize.[342] Moreover, union registration procedures requiring workers to notify factories about the names of office-bearers are an obstacle in practice, effectively prohibiting union formation.

The ILO CFA has repeatedly said that while it may be desirable to avoid a multiplicity of unions, that fact “does not appear sufficient to justify direct or indirect interference by the State, and especially intervention by the State by means of legislation.”[343] A government cannot through legislation seek to impose a monopoly in trade union movement and take away workers’ rights to join “organizations of their choosing.”[344] Where laws governing minimum number of founder members can be introduced, authorities should not set the number so high that it effectively renders it impossible to set up a union.[345]

 

International Guidance on Use of Fixed-Duration Contracts

ILO Convention No. 158 on Termination of Employment together with Recommendation No. 166 governs the use of fixed-duration contracts. Cambodia has not ratified this convention, but it provides useful guidance.[346]

Convention No. 158 sets out that states should create “adequate safeguards” to ensure that contracts for specified periods are not used to avoid worker protection against unfair termination.[347] Fixed-duration contracts should be limited to situations where the “nature of work,” the “circumstances under which it is to be effected,” or “the interests of the worker” requires them.[348] Where fixed-duration contracts are renewed or not limited to the situations described above, states should deem them to be contracts of indeterminate duration.[349]

States should curb arbitrary dismissals for “unsatisfactory performance” with adequate safeguards such as a written warning, followed by a “reasonable period” for improvement.[350] Where the employer needs to terminate workers due to reasons of “economic, technological, structural or similar nature,” these should be made “according to criteria, established wherever possible in advance, which give due weight both to the interests of the undertaking, establishment or service and to the interests of the workers.”[351]

Domestic Legal Standards

Cambodia’s Labor Law and the Trade Union Law provide protection to union leaders in dismissal decisions and the latter regulates union registration, reporting, and penalties. The law has been widely criticized, including by national and international human rights groups as well as the UN Office of the High Commissioner for Human Rights, as violating Cambodia’s obligations under international human rights and labor law.[352]

Protection of Union Leaders in Dismissal Decisions

Cambodian labor law strictly regulates mass layoffs to protect affected union leaders from anti-union discrimination by employers, who must generally seek authorization from the Ministry of Labor’s labor inspector when terminating elected union leaders.[353] Article 12 of the Labor Law and article 62 of the Law on Trade Unions prohibit employers from dismissing workers based on union membership. Article 50 of the Law on Trade Unions safeguards the right to union representation for workers, including during mass layoffs.

In the context of mass layoff procedures, article 95 of the Labor Law sets out a hierarchical order for layoffs. The first workers to be laid off are those with the least professional ability, then workers with the least seniority. Seniority must be increased by one year for a married worker and an additional year for each dependent child. Article 182 of the Labor Law prohibits employers from laying off women in labor, during their maternity leave, or at a date when the end of the notice period would fall during the maternity leave.[354]

Conciliation and Arbitration Proceedings

Where a dispute was not resolved at company-level, a labor inspector may decide to initiate conciliation proceedings with the MoLVT’s Labor Disputes Department.[355] In the 2015 report, “Work Faster or Get Out” – Labor Rights Abuses in Cambodia’s Garment Industry, report, Human Rights Watch criticized the collusion and corruption between government inspectors and factory management, which has reduced the credibility of the labor inspectorate system and local authorities.[356]

Under Cambodia’s Labor Law, a distinction is made between individual disputes, involving individual workers, and collective disputes, involving one or more employers and several employees, as a group or trade union.[357]

If a labor dispute case is referred to a local labor inspector, they will initiate conciliation proceedings—compulsory for collective disputes.[358] If conciliation fails, the conciliator must prepare a report of non-conciliation and submit it to the minister of labor within 48 hours of the conciliation process finishing.[359] The minister of labor must refer the case to the Arbitration Council within three days of receiving the report of non-conciliation.[360]

The Arbitration Council interprets labor regulations in collective disputes, and its mandate is expected to expand to cover individual labor disputes. Due to common misclassifications of collective labor disputes as individual disputes by labor inspectors and conciliators, labor disputes involving more than one worker have been prevented from reaching the Arbitration Council.[361] The council issues so-called arbitral awards as its rulings, which are only binding at the option of both parties. Until the council has decided, workers who are party to the dispute may not strike.

Amendments of Cambodia’s Labor Law of 1997 adopted with Royal Decree No. NS/RKM/1021/011 on October 5, 2021, revising the rules governing individual labor dispute resolution, work shifts, and public holidays, have seen an extension of the jurisdiction of the Arbitration Council to cover also individual disputes.[362] Implementing legislation has so far not been adopted.

Severance for Dismissed Workers

Severance under fixed-duration contracts includes at least 5 percent of the wages during the length of employment (Labor Law, article 73).

Where an undetermined duration contract replaces a fixed-duration contract, the workers’ employment seniority should be calculated by considering the length of both contracts (Labor Law, article 73, paragraph 7). Calculation of severance payment is based on average earnings over the previous 12 months. The Arbitration Council found that overtime and bonuses the worker received in the 12 months prior to dismissal should also be included in the calculation.[363]

Severance pay is not payable in the case of serious misconduct on the part of the worker. However, it is payable if the employer pushed the worker to resign through their own serious misconduct.[364] An employer must pay damages in addition to severance pay if they terminate an undetermined duration contract without a valid reason. Workers are owed damages if they are dismissed without a valid reason, i.e., to compensate workers with the amount equal to the wages and all kinds of benefits that the worker would have received during the official notice period (Labor Law, article 91).[365]

Separately, Cambodian law requires notice periods before termination of between seven days and three months, depending on the length of worker’s continuous employment.[366] Where such notice period is not provided, workers should receive damages (Labor Law, new article 87). However, in the event of business closure, where an employer is deemed to comply with MoLVT ministerial orders (“Prakas”), damages would not apply. The government has yet to adopt such Prakas, which means that employers can decide to pay employees compensation in lieu of prior notice.

 

Recommendations

To the Ministry of Labor and Vocational Training (MoLVT)

Registration of Unions and “Most Representative Status”:

• Ensure that workers can register trade unions through a simple, objective, swift, and transparent process, while taking necessary measures to ensure that registration operates as a formality that does not entail any discretion or prior authorization, in line with the International Labour Organization’s (ILO) recommendations during the review of Cambodia’s compliance with ILO Convention No. 87.
• Promptly process registration of union mandate renewals following union elections, without any undue delays and without political interference.
• Remove barriers to collective bargaining by eliminating the Most Representative Status (MRS) certification requirement, which is subject to burdensome, discretionary, and politicized procedures that prevent independent unions from obtaining MRS to defend their members’ rights in dispute settlements.
• In line with ILO conventions, significantly amend or repeal articles 54 to 56 of the Trade Union Law, regulating the process and certification procedure for MRS by placing the procedure with an independent body to ensure transparency and effectiveness, and allowing minority unions without MRS to represent workers with the filing of grievances, in conciliation meetings at the MoLVT, or in disputes before the Arbitration Council or courts, and to bargain collectedly on their behalf.

Independent and Fair Conciliation

• Ensure labor conciliators work on the resolution of labor disputes in an independent and impartial manner to ensure fair outcomes for affected workers, and closely review performance of officials doing this work.
• Set clear guidelines for labor conciliators to forward all disputes to the Arbitration Council related to shop steward elections, mass layoffs, and dismissals of trade union leaders where prior authorization has been sought from the labor inspector.
• Adopt a ministerial order (“Prakas”) clarifying that labor disputes involving unions are collective labor disputes by default, preventing systemic misclassification of collective labor disputes as individual labor disputes by the MoLVT, which deny unions their right to have their labor dispute heard effectively.

Independent and Fair Arbitration

• Issue a ministerial order (“Prakas”) that establishes procedures implementing the amendments to the Labor Law that introduce individual dispute resolution at the Arbitration Council.
• Enable the Arbitration Council to review decisions of labor officials upon referral of their actions or decisions from the Minister of Labor.

Stop Misuse of Fixed-Duration Contracts:

• Immediately repeal and/or correct its 2019 instruction 050/19 on determination of the type of employment contract, enabling the extended use of fixed-duration contracts, to align with article 67 of Cambodia’s Labor Law and the legal interpretation issued by the Arbitration Council that the use of fixed-duration contracts cannot extend beyond a two-year period.

To the Ministry of Interior and the Ministry of Justice

Harassment of Independent Unions

• Stop the arbitrary arrests, detention, and criminal prosecutions of independent union leaders and activist members because of their carrying out legitimate union activities to represent workers.
• Stop court injunctions to arbitrarily interfere in the right to strike of workers by labelling virtually all strikes as “illegal.”
• Undertake all necessary efforts to settle the legal proceedings against trade unionists in connection with the incidents during the January 2014 demonstrations.
• Ensure that no criminal charges or sanctions are imposed in relation to lawful trade union activities, including holding peaceful demonstrations, and drop all criminal charges for those trade unionists charged in connection with the January 2014 demonstrations.
• Take all necessary measures to stop arbitrary arrest, detention, and prosecution of trade unionists for undertaking legitimate trade union activity.
• Drop the pursuit of a case against Free Independent Trade Union Federation (FUFI) federation president Soy Chanthou and terminated local FUFI leaders Nov Chantha and Oeun Channy based on their legitimate union activities.
• Drop “incitement” charges against Labor Rights Supported Union of Khmer Employees (LRSU) leaders and activist members Chhim Sithar, Chhim Sokhorn, Hay Sopheap, Kleang Soben, Ry Sovanndy, Sun Sreypich, Touch Sereymeas, and Sok Narith.
• Drop charges against three LRSU activist members, Choub Channath, Sao Sambath and Seng Vannarith based on alleged Covid-19 violations, and stop the criminal cases against Kheng Chenda, Ouk Sopheakmolika, Meng Kanika, and Eng Sreybo based on the same allegations.
• Stop harassment of Cambodian Alliance of Trade Union (CATU) leader Yang Sophorn based on her activities as a union leader, including threats of legal action following her attendance at a strike in Phnom Penh in 2022.
• Stop police and officials from restricting the right to strike by independent unions. End the use of unnecessary and excessive force by all police and plainclothes security officers and other officials against striking workers.
• Investigate and hold accountable officers who used or ordered unnecessary and excessive violence against NagaWorld workers and other strikers.

To the Royal Government of Cambodia

• Fully comply with Cambodia’s international obligations under ILO conventions, and ensure that all officials’ actions comply with the rights afforded to workers and employers under ILO conventions including the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), Right to Organize and Collective Bargaining Convention, 1949 (No. 98), and the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).
• Amend or repeal legal provisions in all laws that restrict the right to freedom of association in contravention of Cambodia’s international human rights law obligations (including but not limited to the Trade Union Law, the Law on Associations and Non-Governmental Organizations (LANGO), public health-related laws (Law on Preventive Measures Against the Spread of COVID-19 and other Severe and Dangerous Contagious Diseases, and the Law on the Management of the Nation in a State of Emergency), and provisions in Cambodia’s criminal code that violate the right to freedom of expression, such as “incitement,” “defamation,” “public insult” or “insult of a public official,” and “any of the offenses relating to judicial decisions and investigations.”
• Fully and comprehensively implement the government’s recently developed “Cambodia Garment, Footwear and Travel Goods Sector Development Strategy 2022-2027” in an open and transparent manner, engaging inclusively with both workers organizations and employers, and implementing the strategy and timelines. Take action to review and revise the National Social Security Fund to include unemployment insurance benefits to protect all workers, formal and informal, in the event of unforeseen economic crises that could impact their livelihoods.

To Employer Associations, including Chambers of Commerce and Sectoral Associations

End Anti-Union Practices

• Help end all blacklisting of union leaders and activist members of independent unions by business groups, and publicly condemn such rights-abusing practices.
• Condemn members use of public health crises to restrict the rights to freedom of association of independent unions that prevent their formation, registration, existence, and operation in places of business.
• Publicly oppose the resort to criminal charges against union leaders and union members for their exercise of their legitimate union activities (such as the broadly invoked criminal charge of “incitement to commit a felony”), in line with the internationally protected rights to freedom of expression, association, and peaceful assembly.
• Publicly condemn and sanction members, including through expulsion from membership, who engage in anti-union practices.

Compliance with Conciliation Decisions and Arbitration Council Awards

• Closely monitor and intervene to ensure members of employer associations fully comply with orders from the Ministry of Labor and Vocational Training, particularly letters from the Department of Labor Disputes ordering reinstatement of trade union leaders.
• Negotiate an extension of the previous Memorandum of Understanding between employer associations and union federations to treat Arbitration Council awards as binding.
• Closely monitor and intervene to ensure members of employer associations fully comply with arbitral awards issued by the Arbitration Council.

Implementation of New Garment Strategy to Improve Working Conditions, Strengthen Social Protection

• Proactively engage the government, in collaboration with members of employer associations and other partners, to ensure full implementation of short-and medium-term measures reflected in the government’s “Cambodia Garment, Footwear and Travel Goods Sector Development Strategy 2022-2027,” including but not limited to:
  • Improving working conditions and welfare of workers in the sector;
  • Strengthening dispute resolution mechanisms, including the capacity of conciliators at the Ministry of Labor and Vocational Training;
  • Providing space for negotiating collective bargaining agreements;
  • Strengthening the independence and effectiveness of the Arbitration Council.
• Strongly support government initiatives and efforts to review and revise the National Social Security Fund to include unemployment benefits to protect workers in the event of unforeseen economic crises that will impact their livelihoods.

Overuse of Fixed-Duration Contracts

• Raise awareness among members of employer associations about article 67 of the Labor Law and the Arbitration Council’s decision on fixed-duration contracts, to help curb the misuse of short-term contracts as a tool to intimidate and discourage workers from unionizing.
• Raise awareness among employer association members that fixed-duration contracts heighten the risk of discriminatory practices at the factory-level, including based on pregnancy and other prohibited grounds.
• Raise awareness about the legal protections for union leaders under Trade Union Law, which cannot be overridden using fixed-duration contracts.

Severance Payments

• Create a protocol to intervene and assist workers faced with economic distress following factory closures of member companies.

Codes of Conduct

• Ensure that members of employer associations adopt and actively implement human rights-based corporate policies such as code of conducts to meet their responsibilities under the UN Guiding Principles on Business and Human Rights, including establishing accessible and effective grievance mechanisms to freely report rights abuses committed by employers.

To NagaWorld Casino

• Recognize the Labor Rights Supported Union of Khmer Employees (LRSU) as a registered union at NagaWorld and do not impede the issuance of Most Representative Status for the union.
• Swiftly and in good faith resolve the labor dispute with LRSU, considering the demands made by the union, and invite the ILO as a third-party observer to ensure fair resolution of the labor dispute.

To the ILO Regional Office for Asia and the Pacific, as part of the UN Country Team in Cambodia

ILO Regional Office for Asia and the Pacific/ILO Committee on Freedom of Association:

• Take concrete, transparent actions in response to Cambodia’s continued non-compliance with key ILO Conventions protecting freedom of association, including publicized reviews of Cambodian labor laws and regulations where the ILO provides comments and public condemnations of the government’s crackdown on independent unions and the adoption of draconian laws that violate its ILO obligations and other human rights conventions.
• Press for ILO’s role as third-party observer in labor disputes to ensure fair and swift resolution of protracted labor disputes.
• Publish findings of Direct Contacts Missions and elaborate steps to engage tripartite partners and other stakeholders in Cambodia with relation to these findings, while pressing the Cambodian government to implement the recommendations of the Direct Contacts Mission’s findings.

UN Country Team in Cambodia, including the ILO:

• Press the Cambodian government to stop harassing unions to prevent their ability to represent their members in labor disputes and protect workers’ rights. Press for the repeal or revision of laws and other measures used to suppress the right to strike and collective bargaining (including the “Law on Measures to Prevent the Spread of Covid-19 and other Serious, Dangerous and Contagious Diseases” and Trade Union Law), and to end unlawful use of force against strikers.
• Respond to individual freedom of association cases to ensure that workers are protected from arbitrary or discriminatory measures by employers.

To the European Union

• Publicly condemn the Cambodian government’s undermining the right to freedom of association, harassment of independent unions, and attacks on their rights to strike and collective bargaining, and urge Cambodian authorities to implement the recommendations formulated in this report.
• Continue to urge the Cambodian government to meet the benchmarks set in the context of the partial suspension of Cambodia’s “Everything But Arms” trade preferences, and publicly condemn the government’s continued non-compliance with its human and labor rights obligations.
• Coordinate with the United States, United Kingdom, and other key trading partners on joint efforts to pressure Cambodia, as specified below.
• Continue to support and engage with Cambodian civil society, including independent unions, and with the UN Office of the High Commissioner for Human Rights, to assess the human rights situation in Cambodia and promote compliance with international human rights standards.
• Ensure thorough implementation of all relevant EU human rights guidelines and of the EU Action Plan on Human Rights and Democracy, including through action by the EU and its member states’ diplomatic representations in Cambodia, possibly in coordination with other likeminded partners. In particular:
  • monitor and promptly denounce all cases of abuses of the rights to freedom of association by the Cambodian authorities;
  • support the rights of unions to carry out their activities and their access to justice by meeting with them regularly, intervening in individual cases of harassment and anti-union actions by employers;
  • providing funding support that allows for access to justice and strengthening of their activities; and
  • liaising with other foreign governments to coordinate on such strengthening of independent unions.
• Ensure the adoption of a strong EU Corporate Sustainability Due Diligence Directive (CS DDD) with civil liability for companies doing business in the EU and sourcing from countries like Cambodia. The law should require brands sourcing from countries like Cambodia to conduct due diligence over their own purchasing practices and hold them accountable for failing to prevent or remediate human rights abuses in their supply chain, in line with their responsibilities under the UN Guiding Principles on Business and Human Rights.

To the United States Government

• Adopt a position on the benchmarks that the Cambodian government needs to meet to address labor rights abuses, including ending arbitrary arrests and detention, harassment, and criminal prosecutions of independent union leaders and activist members; ending the misuse of court injunctions to designate union strikes as “illegal”; and undertaking genuine legal reforms.
• Negotiate a joint demarche with the EU, UK, Japan, and other major export markets listing key benchmarks and making their achievement necessary for Cambodia to enjoy increased access to the export market. The demarche should state that punitive measures already taken or currently under consideration, including the EU suspensions of privileges, business advisories published by the US and EU, and possible future suspensions by US when its GSP is renewed, will not be rescinded until the Cambodian government meets the stated benchmarks.
• Encourage the EU to maintain its GSP partial suspensions and continue to communicate with Cambodia about the key benchmarks.
• Strongly urge the UK government to reimpose the partial EU suspensions lifted after Brexit, so that UK suspensions of preferences match the EU’s suspension of trade privileges and are premised on benchmarks like those above.
• Strongly urge Canada to include benchmarks like those above in any trade agreement involving Cambodia.
• Continue to communicate to Cambodia that if the government does not address the labor rights concerns, at the time Congress reauthorizes the GSP program, Cambodia exports will immediately be subject to the review announced in 2021, which could result in Cambodia losing its trade privileges. The US should state that Cambodia will not remain eligible absent changes and reforms.
• Communicate to Cambodia that regardless of all other actions, if the United States determines that the Cambodian government has taken no significant steps toward reform, the US Trade Representative (USTR) will initiate an investigation of Cambodia’s labor practices under section 301 of the Trade Act, a process could result in punitive increases in duties and tariffs on all Cambodian goods—including garments, which comprise the largest share of Cambodia exports to the US. In this event, the USTR should also communicate to Cambodia that they will work with Congress to ensure that GSP retroactive benefits for the currently lapsed period will not be provided.
• Urge Congress to include provisions in legislation reauthorizing GSP to block Cambodia and other governments under review from receiving retroactive GSP benefits, regardless of USTR actions, if they do not meet benchmarks like those noted above.

To the Japanese Government

• Adopt legislation that requires Japanese companies, government agencies, and state-backed financial institutions to conduct human rights due diligence on a rolling basis for both their domestic and international operations, including in Cambodia.
• Ensure that Japan government grants to the Cambodian government are tied to compliance with its obligations under international human rights law, and where there is not compliance, submit these grants for review.
• Take action in response to reports of excessive and unnecessary use of force by Cambodian authorities against striking NagaWold casino workers; take action to prevent the use of Japan International Cooperation Agency (JICA) funded Phnom Penh city buses to transport away striking workers.
• Call on the Cambodian government to stop violating the right to freedom of association of union leaders and activist members.
• Publicly condemn the Cambodian government undermining the right to freedom of association, the continued harassment of independent unions, and attacks on their rights to strike and collective bargaining.

To Other Countries with Economic Ties to Cambodia, including Germany, Canada, UK, Australia, and South Korea

• Ensure that all economic agreements or trade preferences granted to the Cambodian government are tied to human rights and labor rights criteria, which can be withdrawn if the Cambodian government does not comply with its rights obligations.
• Issue guidance to companies doing business in Cambodia of the reputational, economic, and legal risks from engaging in business with companies in Cambodia involved in human rights abuses.
• Adopt corporate due diligence legislation that holds companies sourcing from or based in Cambodia accountable for committing or failing to prevent human rights abuses in their supply chain.
• Publicly condemn the Cambodian government undermining the right to freedom of association, the continued harassment of independent unions, and attacks on their rights to strike and collective bargaining.

To International Brands and Retailers

• Press for additional legal reforms to the Trade Union Law and registration of unions, including reducing the threshold to form unions and amendments to the threshold for Most Representative Status, as well as the prerequisite of registration for collective bargaining at the factory level.
• Introduce business incentives for suppliers that respect workers’ freedom of association and collective bargaining; and prioritize the creation of in-country grievance redress mechanisms, including through legally binding agreements with credible local civil society and independent unions.

 

Acknowledgments

This report was researched and written by a researcher in Human Rights Watch’s Asia Division. Phil Robertson, deputy director for the Asia Division, edited the report.

The report was reviewed by Aruna Kashap, associate director in the Economic Justice and Rights Division, Lena Simet, senior researcher in the Economic Justice and Rights Division, and Kyle Knight, health and human rights senior researcher. James Ross, Legal and Policy director, and Danielle Haas, senior Program editor, provided legal and program review respectively.

We are particularly indebted to the external reviewers who commented on sections of an early version of the report. Due to security concerns, their names cannot be identified.

We are very grateful to the many labor law experts, local and international NGOs, independent unions, lawyers, academics and others who assisted our research, in particular the Center for Alliance of Labor and Human Rights (CENTRAL), the Clean Clothes Campaign (CCC), the Solidarity Center, the Worker Rights Consortium (WRC), and independent union federations – the Cambodian Alliance of Trade Unions (CATU), the Coalition of Cambodian Apparel Workers Democratic Union (C.CAWDU), the Free Independent Trade Union Federation (FUFI), the Cambodian Food and Service Workers Federation (CFSWF), the Cambodia Tourism Workers' Union Federation (CTWUF) and the Labor Rights Supported Union of Khmer Employees (LRSU).

Above all, we thank all the workers who recounted their experiences in the garment, footwear and travel goods as well as tourism and entertainment sectors.

The views expressed in this report are those of Human Rights Watch, which takes full responsibility for any errors or omissions.