International Legal Standards
Cambodia is party to several international legal conventions governing the rights of women in the workplace and other worker rights. Cambodia has also ratified 13 International Labour Organization (ILO) conventions, including the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), the Minimum Age Convention, 1973 (No. 138), and the Worst Forms of Child Labour Convention, 1999 (No. 182).
Under the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Cambodian government has a duty to respect, protect, and fulfill workers’ rights to “safe and healthy conditions” without discrimination and with “rest, leisure…reasonable limitation on working hours,” and “to form trade unions and join the trade union” of their choice.
Creating a Violence-Free, Non-Discriminatory Workplace with Maternity Protection
Cambodia’s international obligations include promoting equality at the workplace and prohibiting discrimination on the basis of sex or pregnancy. Women have a right to a workplace free of sexual harassment and states are duty-bound to take preventive steps and ensure access to redress.
Protection against pregnancy-based discrimination includes but is not limited to dismissal. ILO Convention No. 111 on Discrimination defines discrimination as “any distinction, exclusion or preference made on the basis of … sex... which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.” States should modify practices that are inconsistent with a policy of anti-discrimination. Therefore, the Cambodian government should take measures to eliminate discrimination in hiring, regularizing contracts beyond probation, promotions, and termination, and end the repeated use of FDCs beyond seasonal and temporary needs.
According to the 2000 ILO Convention No. 183 on Maternity Protection, which Cambodia has not ratified, and Recommendation No. 191, the onus of proving that the reasons for terminating a pregnant worker were unrelated to pregnancy lies on the employer. Cambodia’s Arbitration Council has instead held that pregnant women workers have the onus of proving such discrimination.
Women are entitled to special protection during pregnancy to avoid work harmful to them. States should also encourage the provision of social services, especially through developing childcare services, to enable parents to balance caregiving with work responsibilities.
Laws should ensure that a workplace accommodates pregnant women’s special health needs, including leaving for medical checks after notifying the employer. After assessing health and safety risks for pregnant women at the workplace, states should put in place systems to minimize such risks, including alternative work or transfers without loss of pay. Cambodian authorities have not studied the occupational and health risks for workers in garment factories, especially for pregnant workers, including risks from sitting for prolonged hours. The government has not issued any directive to reasonably accommodate pregnant workers without resulting in income loss.
Short-Term Contracts and Casual Hiring
ILO Convention No. 158 on Termination of Employment together with Recommendation No. 166 governs the use of short-term contracts. Cambodia has not ratified this convention but it provides useful guidance.
States should create “adequate safeguards” to ensure that contracts for specified periods are not used to avoid worker protection against unfair termination. Fixed-term 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. Where short-term contracts are renewed one or more times, or when they are not limited to the situations described above, states should deem them as contracts of indeterminate duration.
Cambodian labor law deems short-term contracts that are renewed one or more times beyond two years as contracts of indeterminate duration. But it does not specify that short-term contracts not necessitated by the “nature of the work” or circumstances of the task are indeterminate. In any event, even the two-year outer limit for repeated renewal of FDCs is flouted by many factories. Authorities should protect both male and female workers from being discriminated against using shorter-term FDCs.
States should curb arbitrary dismissals for “unsatisfactory performance” with adequate safeguards such as a written warning, followed by a “reasonable period” for improvement. Where the employer needs to terminate workers due to reasons of “economic, technological, structural or similar nature,” these should be made according to pre-defined criteria that factor in the interest of the workers as well as the factory.
Freedom of Association
The International Covenant on Civil and Political Rights (ICCPR) protects the right to freedom of association. Both the ICCPR and the International Covenant on Economic, Social and Cultural Rights (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 by the ILO Committee on Freedom of Association (CFA), impose an obligation on the Cambodian government to ensure that employers do not thwart union formation and participation.
Workers have the right to join organizations “of their choosing without prior authorization” and authorities should refrain from any interference that would restrict this right or impede its enjoyment.
Laws and regulations governing unions should not restrict union formation. 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.
The right to organize includes the right to official recognition through registration. 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. Government procedures that result in undue delays to registration are an infringement of workers’ right to organize.
Union registration procedures requiring workers to notify factories about the names of office-bearers are an obstacle in practice, effectively prohibiting union formation. The Cambodian government’s techniques of finding spelling and other minor errors and repeatedly rejecting or delaying union registration applications of independent unions creates barriers to unionizing. Cambodian Labor Ministry officials have also unnecessarily delayed and suspended union registration, violating international standards. Even though government regulations deem all unions registered within two months of the registration application, in practice unions say they are unable to exercise their full rights unless a license is issued.
The ILO Committee on Freedom of Association 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.” The state cannot through legislation seek to impose a monopoly in trade union movement and take away workers’ rights to join “organizations of their choosing.” 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.
Cambodia has ratified the Convention on the Rights of the Child (CRC), which states that children have a right “to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development.” Cambodia has also ratified binding ILO Conventions, including the Worst Forms of Child Labor Convention (No. 182) and the Minimum Age Convention (No. 138).
In compliance with these conventions, Cambodia has set a minimum age for admission to work at 15 and has other rules governing work by children. However, because of poor labor inspections and enforcement, Cambodian child labor provisions are frequently violated. As a party to the Minimum Age Convention, Cambodia is obligated to take all necessary measures to ensure the effective enforcement of the provisions of these conventions, including through monitoring of remediation efforts to ensure that factories do not skirt their obligations.