Right to strike ‘fundamental’

Garment workers gather behind barbed wire on Russian Boulevard in Phnom Penh during a demonstration in December. Vireak Mai

Right to strike ‘fundamental’

Phnom Penh Post | 30 January 2014

 

A labour law expert from the International Labour Organization yesterday rejected claims made by Cambodian factories and employers associations that workers in the Kingdom have no fundamental right to strike.

In a paid advertisement in the Post yesterday, the Garment Manufacturers Association in Cambodia (GMAC) and the Cambodian Federation of Employers and Business Associations (CAMFEBA) used the ILO’s Convention 87 on freedom of association to claim unions have misled the public about recent strikes.

“The right to strike is not provided for in … C87 and was not intended to be,” GMAC’s notice says. “Is the right to strike therefore a fundamental right? NO. The right to strike is NOT a fundamental right.” [who are these neanderthals????]

But Tim De Meyer, a senior international labour law specialist for the ILO in Bangkok, said the organisation has “always” considered the right to strike fundamental.

“The claims that the right to strike is not a fundamental right and that C. 87 does not establish a right to strike are not consistent with the position taken by the International Labour Organization and its tripartite constituency as a whole (i.e. governments, employers and workers) over a period of at least the last 60+ years,” he wrote in an email.

While the convention didn’t explicitly spell out the right to strike, he added, the “Governing Body (i.e. the International Labour Office’s tripartite executive council) has always regarded the right to strike as a fundamental right of workers and of their organizations”.

The advertisement followed a mass strike in the garment industry that began in December and ended this month after security forces shot dead four protesters near a garment factory in the capital.

“Any party”, the advertisement continues, can sue a union leader guilty of illegal behaviour (GMAC claims all strikes in the garment sector fail to follow legal procedures) and emphasises that the registration of a union can be revoked. 

Dave Welsh, country manager for labour rights group Solidarity Center, said he was concerned that the two associations were using a “simplistic … misreading” of the ILO convention to justify litigation against unions that were behind the recent strike – which cost the garment industry millions of dollars.

“We hope this is not a precursor to mass litigation against unions,” he said, adding that targeting individual union leaders would also be concerning.

“It doesn’t mean union officers have carte blanche to do anything … but you can’t launch personal lawsuits against individuals whenever [something goes wrong].”

Welsh agreed that Convention 87 did not explicitly talk about the right to strike, but said case law and the work of expert ILO committees over the past 20 years had “extended the right to strike”.

Rong Chhun, president of the Cambodian Confederation of Unions, said the advertisement was misleading because it failed to mention that Cambodia’s labour law guarantees the right to strike.

“The association or union has the full right to strike,” he said. “I think GMAC is trying to deceive the public.”

Chea Mony, president of the Free Trade Union, agreed, saying that the right to strike was also protected under Cambodia’s constitution.

“Maybe GMAC is confused about this point,” he said. “When someone strikes, they do so within the law.”

Article 37 of Cambodia’s constitution states that the “right to strike and to non-violent demonstration shall be implemented in the framework of a law”. 

Article 319 of the 1997 Labour Law makes it clear that the right to strike is “guaranteed”.

Ken Loo, GMAC’s secretary-general, said his association was not trying to oversimplify the ILO convention, but merely stating that the right to strike “is not inherent”.

“We want everybody to know [this],” he said. “This point has been argued for the past two years at the international [ILO] conference. There is no misleading or misguiding [from GMAC].”

The advertisement does not mention that the right to strike is protected under Cambodian law, stating only that it “is a matter that should be regulated at the national (country) level”.

Loo denied that this was misleading, saying that GMAC was only trying to stem the tide of “misinformation” from unions and NGOs about freedom of association rights.

“We just want to clarify the impression that workers have the right to strike absolutely – they have the right, but it is the prerogative of each country to set the conditions.”

Loo said the notice – which links violence to unions and “unlawful” strikes – was also aimed at showing that, in some circumstances and with “strict conditions”, revoking a union’s registration was allowed.

But Solidarity Center’s Welsh said there needed to be clear reasons for unions to be deregistered and the right of appeal be granted. 

“This kind of approach is a step backwards.”