Can Access to Justice Promote Behavioral Change? The Experience of the Arbitration Council

Industrial Relations in Cambodia What is the Problematic Behavior: Many employers don’t respect the labor law (incorrect pay; anti-union discrimination; unfair dismissals; insufficient benefits) If there is a dispute workers proceed to strike before exhausting other methods of dispute resolution.

Industrial Relations in Cambodia A graph of current DR practice: Escalation Time

Industrial Relations in Cambodia A graph of desired DR practice: Escalation Time

Industrial Relations in Cambodia Causes of the Behavior (Employer): Knowledge (employers not familiar with labor law); Skills (employers not skilled in labor dispute resolution) Business Culture (employers come from countries with different legal systems); Lack of Sanction (labor law is nominally enforced by ministry and courts, but neither offer sufficient opportunities for workers to realize their rights – thus profit motive prevails).

Industrial Relations in Cambodia Causes of the Behavior (Worker): Skills (workers not skilled in labor dispute resolution); Lack of Trust (workers do not believe that there is justice in the system therefore they take justice into their own hands); Culture of Dispute Resolution (culture influences dispute resolution styles. Employers are often not Khmer and have different styles of communication and dispute resolution).

The Dispute Resolution System

The Interventions (1) The Arbitration Council  A tripartite body which decides on labor disputes which could not be solved through conciliation;  Established with involvement of government; unions and employer associations (participatory process);  Independence;  Publishes reasoned decisions;  Parties may object to a decision.

The Interventions (2) Training  Training to MOSALVY, unions and employers on labor law and dispute resolution;  Workplace cooperation training at selected enterprises;

Measuring Change Following up on the outcomes of cases brought to the Arbitration Council; Monitoring Strikes & Lockouts; Interviews & focus groups with key stakeholders (MOSALVY; Employer; Unions; and NGOs); KAP Survey of Stakeholders.

Increasing Case Load

Case Study (resolution of disputes): Standard Garment v Employees (Case #27/03) Industry: Garment Workers: 300+ Workers claimed that they had been dismissed unfairly and because of their involvement in union activities. At the hearing the employer failed to provide sufficient evidence to show that he had a valid reason for dismissing the workers. Accordingly the Arbitration Council ordered their reinstatement. Acknowledging, however, that the workers in question had committed acts of misconduct, the Council ordered that the workers be given a formal last warning with the consequence that any further act of misconduct would result in their dismissal. The employer lodged an objection to the award, but with the cooperation of MOSALVY, the employer was later persuaded to implement the award, and the workers have returned to work.

Many Successes but some Frustrations

Case Study (reduction in strikes): Case # 04/03 Lida Garment Factory v. Employees Industry: Garment Workers: 512 Workers were on strike when this case was received by the Arbitration Council. The issue related to the correct payment of wages. The Council requested the parties to attend a pre-hearing meeting. The parties attended and were able to agree on conditions for the workers to return to work pending an award of the Arbitration Council. The parties agreed to binding arbitration and the dispute was settled by the award without resort to further industrial action.

# Strikes in the Garment Industry

Case study (development of standards): Case # 06/03 Yung Wah Garment v. Employee Industry: Garment Workers: 512 Dispute about the collection of union dues. Cambodian law is unclear on this point, but in earlier cases the Arbitration Council found that the employer must deduct dues if the worker makes a written request. In this case the Arbitration Council designed a sample request form which was acceptable to employer and union. This form has since been taken up by GMAC and is used as an industry standard.

Feedback from Stakeholders High degree of confidence in the impact which arbitration is having on industrial relations system.

Feedback from Stakeholders High degree of confidence in the impact which arbitration is having compliance with the labor law.

Lessons Learned People who believe they have access to justice behave differently in dispute situations to those who have not faith in the system; In developing institutions of justice, credibility can be more important than power; Support from stakeholders is crucial to the effectiveness of the process; ADR processes have fundamental weaknesses in the absence of the rule of law.