KINGDOM OF CAMBODIA NATION RELIGION KING RkumRbwkSaGaCJakNþal THE ARBITRATION COUNCIL Case number and name: 177/09-JASA Date of award: 22 January 2010 Dissenting opinion by Arbitrator An Nan ARBITRAL AWARD (Issued under Article 313 of the Labour Law) ARBITRAL PANEL Arbitrator chosen by the employer party: Seng Vuoch Hun Arbitrator chosen by the worker party: An Nan Chair Arbitrator (chosen by the two Arbitrators): Pen Bunchhea DISPUTANT PARTIES Employer party: Name: JASA (the employer) Address: Trapeang Ses Village, Kork Chork Commune, Siem Reap City, Siem Reap Province Telephone: 012 586 832 Fax: N/A Representative: Absent Worker party: Name: Building and Wood Workers Trade Union Federation of Cambodia (BWTUC) Worker Union for Maintenance and Protection of Temples (APWU-JSA) Address: No. 0691, Wat Bo Village, Sala Kom Reuk Commune, Siem Reap City, Siem Reap Province. Telephone: 012 752 617 Fax: N/A Representatives: 1. Mr Sok Sovandet President of BWTUC 2. Mr Vann Thol Vice-President of BWTUC 3. Ms Ken Chhenglang General Secretary of BWTUC 4. Mr Rai Chreb Vice-President of APWU-JSA -1-
5. Mr Yan Thy Officer of BWTUC 6. Mr Suo Chluonh Officer of BWTUC ISSUES IN DISPUTE (From the Non-Conciliation Report of the Ministry of Labour and Vocational Training) 1. The workers demand that JASA re-employ 78 workers. JURISDICTION OF THE ARBITRATION COUNCIL The Arbitration Council derives its power to make this award from Chapter XII, Section 2B of the Labour Law (1997); the Prakas on the Arbitration Council No. 099 dated 21 April 2004; the Arbitration Council Procedural Rules which form an Annex to the same Prakas; and the Prakas on the Appointment of Arbitrators No. 190 KB/BRK dated 2 September 2009 (Seventh Term). An attempt was made to conciliate the collective dispute that is the subject of this award, as required by Chapter XII, Section 2A of the Labour Law. The conciliation was unsuccessful, and non-conciliation report No. 1555 KB dated 22 December 2009 was submitted to the Secretariat of the Arbitration Council on 29 December 2009. HEARING AND SUMMARY OF PROCEDURE Hearing venue: The Arbitration Council, Phnom Penh Center, Building A, Sothearos Blvd., Tonle Bassac Commune, Chamkarmorn District, Phnom Penh. Date of hearing: 11 January 2010 at 2:00 p.m. Procedural issues: On 30 August 2009, the Department of Labour and Vocational Training of Siem Reap received a complaint regarding union discrimination and a demand for the reinstatement of 78 workers. Upon receiving the claim, the Department of Labour and Vocational Training of Siem Reap assigned an expert officer to conciliate the labour dispute and the last conciliation session was held on 4 December 2009, with the issue remaining unresolved. The nonconciliated issue was referred to the Secretariat of the Arbitration Council on 29 December 2009 via non-conciliation report No. 1555 KB, dated 22 December 2009. Upon receipt of the case, the Secretariat of the Arbitration Council summoned the employer and the workers to a hearing and conciliation of the non-conciliated issue, held on 11 January 2010 at 2:00 p.m. The worker party was present as summoned by the Arbitration Council, but the employer party was absent without providing any reason. The Arbitration Council will consider the issue in dispute based on the evidence and reasons below. -2-
EVIDENCE Witnesses and experts: N/A Documents, Exhibits, and other evidence considered by the Arbitration Council: A. Provided by the employer party: N/A B. Provided by the worker party: 1. Brief statement on the labour dispute in case 177/09, dated 11 January 2010. 2. Union registration certificate of the Worker Union for Maintenance and Protection of Temples (APWU-JSA), dated 6 November 2001. 3. Letter from the head of the Department of Labour Inspection regarding recognition of the leaders of the union and its second term, No. 313 KKBV/AK dated 2 March 2005. 4. Certificate of most representative status of the Worker Union for Maintenance and Protection of Temples (APWU-JSA), No. 428 SKBY dated 15 July 2004. 5. Letter from BWTUC complaining that the director of JSA did not accept a letter proposing a meeting to negotiate a collective bargaining agreement between JSA and APWU-JSA, No. 29/04 SSKK, dated 30 July 2004. 6. List of the leaders and members of APWU-JSA. 7. Record of collective labour dispute resolution at JASA, dated 4 December 2009. 8. JAPAN-APSARA Safeguarding Angkor project documentation. 9. Documents detailing phases of the project of the Japanese government. 10. Original policy approved by JASA. 11. Miscellaneous photographs. 12. Brief statement on the labour dispute in case 177/09, dated 14 January 2010. 13. List of members of APWU-JSA demanding reinstatement, dated 27 December 2009. 14. Letter certifying that Rai Chreb works for JASA, dated 14 March 2005. 15. ID cards of Roeum Nil, Sok Roun, Chan Thou, and Sin Sopheak for the conservation project to safeguard Angkor Wat. 16. Miscellaneous documents in a foreign language. C. Provided by the Ministry of Labour and Vocational Training: 1. Letter from the Ministry of Labour and Vocational Training regarding a request for dispute resolution at JASA, No. 1555 KB dated 22 December 2009. 2. Report on collective labour dispute resolution at JASA, No. 1148 MKB dated 9 December 2009. 3. Record of collective labour dispute resolution at JASA, dated 4 December 2009. D. Provided by the Secretariat of the Arbitration Council: 1. Letter inviting the employer to select an arbitrator, No. 925 KB/AK/VK/LKA dated 29 December 2009. -3-
2. Record of selection of an arbitrator by lot from the employer list, dated 31 December 2009. 3. Notice to attend the hearing addressed to the employer, No. 001 KB/AK/VK/LKA dated 4 January 2010. 4. Notice to attend the hearing addressed to the workers, No. 002 KB/AK/VK/LKA dated 4 January 2010. FACTS - Having reviewed the report on collective labour dispute conciliation; - Having listened to statements of the representatives of the workers; and - Having reviewed the additional documents; The Arbitration Council finds that: - According to the testimony provided by the workers at the hearing, the employer s original name was JSA (Japanese Government Team for Safeguarding Angkor). However, it has now changed to JASA due to its cooperation with APSARA Authority. - The worker party, the claimant in this case, includes 42 workers represented by BWTUC and APWU-JSA. APWU-JSA holds a certificate of union registration, No. 231 SKBY/AK dated 6 November 2001. Its first term was from 2001 to 2005 and its second term was from 2005 to 2007. Its leaders in the second term were recognised in letter No. 313 KKBV/AK dated 2 March 2005. The union holds a certificate of most representative status (MRS), No. 428 SKBY, dated 15 July 2004. Issue 1: The workers demand that JASA reinstate 42 workers. - The workers noted at the hearing that, according to the non-conciliation report of the Ministry of Labour and Vocational Training, there were 78 claimant workers in the case. However, only 42 claimant workers currently remain involved in the case. - The workers demand that JASA rehire the 42 former workers in their previous positions because the employer committed union discrimination against the 42 workers, who are union leaders and union activists. Historical background to the change of name from JSA to JASA: - 1992: Angkor Wat was declared a World Heritage Site by UNESCO and the temples were included in the list of temples in danger. - 1994: JSA (Japanese Government Team for Safeguarding Angkor), named RkumrdæaPi)alCb:unsRmab;CYsCuskarBarR)asaTGgÁr in Khmer, was established by the Japanese -4-
government with funding from UNESCO and the Japanese government for the purpose of maintaining and safeguarding the Angkor temples from further destruction. It was established for the following three projects from 1994 to 2010: o First Project: 1994 to 1999; restoration of the library site at the northern Bayon Temple. o Second Project: 2000 to 2005; restoration of Suor Prat Temple and its bastion and the northern library of Angkor Wat. o Third Project: 2005 to 2010; restoration of the library at the southern Bayon Temple. - 1996: JSA participated in a conference organised by the APSARA Authority to initiate cooperation between the APSARA Authority and the Cambodian government. - 2005: JSA changed its name to JASA. The worker party stated that the name change was intended to reflect the new cooperation with the APSARA Authority but the organisation maintained the same management structure. Issues related to discrimination and the demand for reinstatement: - Approximately 90 out of 100 workers in Project 1 and Project 2 were union members, but only 78 union members made the demand to be re-employed. - BWTUC noted in the brief statement dated 14 January 2009 that at the end of the first project, all casual workers were dismissed by JSA and provided with their last wages only, whilst regular workers continued to work on the second project. - APWU-JSA s representative stated at the hearing that on 2 July 2004 and 28 July 2004, the union submitted a letter requesting negotiation for a collective bargaining agreement [(CBA)] with the employer. However, after JSA failed to accept the letter, APWU-JSA and BWTUC filed a complaint with the Department of Labour and the Ministry of Labour and Vocational Training, but no solution was found. On 12 January 2005, all workers at the worksite went on strike to push forward the negotiation process. - On 28 February 2005 JSA dismissed all workers, including both casual workers and regular workers, because the second project had come to an end. JSA gave the workers one month notice in advance and paid all the workers their last wages and severance pay equal to 5% of their wages. The workers received this payment without any objection. - The workers stated that in early 2006, JSA commenced its third project and changed its name from JSA to JASA. At that time the organisation recruited staff secretly and -5-
only hired casual workers dismissed during the first project and regular workers from the second project who were not union leaders or activists, as well as certain new workers. - Rai Chreb, Vice-President (and former President) of APWU-JSA, stated that on 28 February 2005 JSA dismissed all its workers. However, by mid-march 2005 JSA had rehired approximately 30 to 40 of those workers. These workers only worked for two months, until May 2005 when JSA dismissed all workers and closed the whole organisation. In early 2006, the organisation restarted its project [under the name of JASA]. Rai Chreb stated that at that time he was riding his motorbike and saw that the worksite was operating again. He took his application form and the forms of another 78 workers to apply for work. He met an accountant named Chrek Sary, who initially didn t want to accept the application forms. When he eventually accepted them he stated that he was only accepting the forms; whether the organisation would allow the workers to return to work was for management to decide. Rai Chreb waited for over a month without receiving a response so he reapplied for the position. This time he met Chea Panha, alias Nol. Chea Panha did not dare give his signature to accept the letters. Rai Chreb stated that he did not know how JASA had re-recruited workers; whether it was through an announcement or by telephone, because it did not contact him. He only applied for work because he saw that the site was operating again. - The worker party notes that the organisation maintains that the first and second projects were under the management of JSA, whilst the third project is a project of JASA under the management of APSARA Authority. Under the third project, there is no union and no worker delegates. However, the worker party still considers that JSA and JASA are the same organisation because they have the same management and system and the same leaders. The only difference is the addition of Co-Director H.E. Ros Borath from APSARA Authority and his assistant, plus another accountant. The workers insist that JASA rehire them because it has discriminated against the union. - None of the above assertions of the worker party were responded to by JASA because it was absent from the hearing. REASONS FOR DECISION Issue 1: The workers demand that JASA reinstate 42 workers. The employer party did appear at the hearing as summoned by the Secretariat of the Arbitration Council. Thus, before considering the issues in dispute in this case, the Arbitration Council will consider if it can proceed with the arbitral process in absence of the employer. -6-
Clause 21 of Prakas No. 099 dated 21 April 2004 states that [i]n the case that one of the parties, although duly invited, fails to appear before the arbitration panel without showing good cause, the arbitration panel may proceed in the absence of that party or may terminate the arbitral proceedings by means of an award. Further to Clause 21 of Prakas No. 099 dated 21 April 2004, in previous cases where a party has been properly notified but fails to appear before the Arbitration Council without providing a proper reason, the Arbitration Council has held that it can continue the arbitral process in the absence of that party (see Arbitral Awards 53/04-Kong Hong; 63/04-Shine Well; 148/07-Pay Her; and 99/09-Kingsland). In this case, only BWTUC and APWU-JSA attended the hearing as summoned by the Arbitration Council. The employer party did not attend the hearing as summoned by the Arbitration Council and did not provide a proper reason for its failure to attend the hearing. Therefore, in order to be consistent with previous cases, in this case the Arbitration Council decides to continue the process in the absence of the employer and with the appearance of the worker party only and will decide the case referred to it based on the evidence and clarification by the workers at the hearing. In this case, the workers demand that JASA rehire 42 workers because JASA discriminated against union leaders and activists [by not re-hiring them] as JASA and JSA are the same organisation, which is the former employer of the 42 workers. Therefore, the Arbitration Council will consider the case as follows: Is JSA or JASA a party to this dispute? According to the statements made by the worker party at the hearing and the brief summary statement it provided, JASA is the same employer that the workers previously worked for and has the same management structure. However, the workers failed to provide to the Arbitration Council any evidence or statements regarding the structure of JSA to prove that JSA and JASA are identical. In addition to the workers assertion, based on the Arbitration Council s assessment there are JSA experts in the management structure of JASA. Nonetheless, the workers have not explained the relationship between the JSA experts and JASA and the relationship between the JSA experts and the workers demanding reinstatement. The Arbitration Council considers that the workers should have provided specific information to prove which part of JASA s structure was involved in or has a relationship with JSA. Furthermore, the Arbitration Council has found that the workers ID cards were signed in 2004 by Sato Yasugaru, Director of JSA, and by Akasuwa Yasushi in 2005. The workers also provided the Arbitration Council with an employment letter signed by Akasuwa Yasushi -7-
certifying that Rai Chreb genuinely worked for JSA. The Arbitration Council does not find the names of Sato Yasugaru and Akasuwa Yasushi in JASA s management structure. In JASA s management structure, the co-directors are H.E. Ros Borath, who represents APSARA Authority and Prof. Nagawa Tageshi, who represents the Japanese party. The Arbitration Council has found that the workers did not provide evidence or statements to prove that JSA and JASA are one and the same employer. Therefore, the Arbitration Council cannot find that JASA is the former employer of the 42 workers. The Arbitration Council will further consider whether JASA has an obligation to rehire the 42 workers: The workers stated at the hearing that when Rai Chreb submitted to JASA his job application, together with the applications of another 42 workers, JASA did not accept them back at work. For this reason, the workers consider that they were not re-employed because of discrimination since they were union leaders and activists at JSA. Article 12 of the Labour Law states:...no employer shall consider on account of:... membership of workers union or the exercise of union activities to be the invocation in order to make a decision on hiring... According to the above article of the Labour Law, an employer is prohibited from using workers union membership or union activities as the basis of a decision regarding the hiring of workers. Generally, workers who accuse an employer of union discrimination bear the burden of providing evidence, documents, or witnesses to persuade the Arbitration Council that their claim is legitimate and reasonable (see Arbitral Awards 79/05-Evergreen; 99/06-South Bay, issue 1; and 01/07-Supreme). In relation to claims of union discrimination, generally the Arbitration Council considers the statements provided at the arbitral hearing and relevant evidence to determine whether the discrimination occurred (see Arbitral Awards 03/03-Tonga, issue 10; 10/03- Jacqsintex, issue 4; 19/04-Kbal Koah, issue 1; 17/07-Charm Textile, issue 1; and 56/09- Suntex, issue 1). In this case, the worker party alleges that JASA discriminated against union leaders and activists because their applications for work on the third project were rejected. However, the workers did not provide any specific facts and evidence to support their allegation of -8-
union discrimination. Further, Rai Chreb stated that he submitted his application only after he saw that the worksite had recommenced operation. He didn t know whether JASA was hiring workers. The fact that the workers waited for but did not receive a response from JASA led to their conclusion that JASA discriminated against the union and union activists as they were former union leaders and activists themselves. The Arbitration Council considers that the workers case is not [sufficient] for the Arbitration Council to believe and determine that JASA did not recruit them due to union discrimination. Further, the workers acknowledged that some of the 30 workers recruited by JASA for the third project, who are currently employed on the worksite, are union members. Furthermore, the workers claim that they knew that JASA discriminated against them because they previously worked for JSA, and JASA was aware of their union activities because JSA and JASA are the same employer. Nonetheless, based on the findings of fact and reasons above, the Arbitration Council considers that JSA and JASA are two separate organisations and thus a different employer. Therefore, the Arbitration Council considers that there is no evidence proving that the union activities the workers performed in the past affected JASA s decision not to recruit them. In addition, Article 65 of the Labour Law states that [a] labour contract establishes working relations between the worker and the employer. It is subject to ordinary law and can be made in a form that is agreed upon by the contracting parties. Based on the above article, the Arbitration Council considers that a contract is an agreement between a worker and employer and is subject to the provisions of general contract law. Article 22 of Decree 38 on Contracts and Other Liabilities states that [a] contract is a law between the parties. Amendments to the contract can only be made with the consent of both contracting parties. A contract shall be executed with honesty and according to the will of the parties. Based on this article, the Arbitration Council considers that no party to a contract can force the other party to accept a form, type or content of a contract which they have not agreed upon. A contract is established only with consent of all parties involved in it. A labour contract is established only with consent of the worker and employer parties (see Arbitral Award 79/07-Terratex, issue 3). Based on the above interpretation, JASA is a new employer because the workers presented JASA s management structure chart to the Arbitration Council but failed to present evidence of the management structure of JSA to prove the similarity between JSA and JASA. The workers are still seeking employment. Thus, JASA has the discretion to determine the -9-
conditions or qualifications it requires of workers and to decide whether or not to offer someone a job. In this case, the workers did not provide evidence of the qualifications and number of workers required by JASA for the new project and why JASA should have offered them jobs. In addition, the Arbitration Council considers that a contract is a law between parties and that no party can force another party to enter a contract. Therefore, the workers cannot force the employer (JASA) to give them work. In conclusion, the Arbitration Council decides to reject the workers demand that JASA re-employ the 42 former workers. Based on the above facts, legal principles, and evidence, the Arbitration Council makes its decision as follows: DECISION AND ORDER Issue 1: Reject the workers demand that JASA re-employ the 42 former workers. Type of award: non-binding award This award will become binding eight days after the date of its notification unless one of the parties lodges a written opposition with the Minister of Labour through the Secretariat of the Arbitration Council within this time period. SIGNATURES OF MEMBERS OF THE ARBITRAL PANEL Arbitrator chosen by the employer party: Name: Seng Vuoch Hun Signature:... Arbitrator chosen by the worker party: Name: An Nan Signature:... Chair Arbitrator (chosen by the two Arbitrators): Name: Pen Bunchhea Signature:... -10-
Annex to Arbitral Award 177/09-JASA Dissenting Opinion In this case, the other two arbitrators have concluded that the worker party does not have sufficient evidence to prove union discrimination. In relation to this point, I, Arbitrator An Nan, do not agree with this conclusion for the following reasons: 1. In the hearing and the statements by the worker party, it was consistently mentioned that JASA did not accept the union leaders and activists back to work because of union discrimination for the following reasons: - The union had requested to negotiate a collective agreement in 2004 but the organisation (at that time it was JSA) did not accept the letter of request for negotiation of a collective agreement. - JSA and JASA are closely interconnected; the only difference is the inclusion of APSARA Authority in the new project, leading to the new name JASA, but its activities continued to follow the plan of the old project. - Union leaders and activists were not re-employed; JASA recruited other workers even though the former workers were already skilled. However, in this case the employer did appear at the hearing and did not provide any evidence to oppose the workers claim. In principle, the Arbitration Council makes its decision based on the claims made by the parties in the hearing and on evidence submitted by the parties. In this case, there is no contradictory claim or evidence to oppose the claim and evidence presented by the worker party. Therefore, the statements provided during the hearing and the evidence of the worker party have sufficient weight and validity. Article 12 of the Labour Law prohibits the employer from making a decision to hire or not to hire a worker based on union activities. Such an act is considered union discrimination. Therefore, JASA should cease the union discrimination and re-employ the 42 workers in line with their skills when it needs to recruit more workers. Phnom Penh, 22 January 2010. Arbitrator An Nan -11-