Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Philippines (Ratification: 1953)

The Committee takes note of the observations received from the following workers’ organizations: (i) the Trade Union Confederation Congress of the Philippines (TUCP) (25 June 2013) referring to matters before the Committee on Freedom of Association (Case No. 3037); (ii) the International Trade Union Confederation (ITUC) (1 September 2015); (iii) Education International (EI) and the National Alliance of Teachers and Office Workers (SMP-NATOW) (28 September 2015); and (iv) the Center of United and Progressive Workers (SENTRO) (1 October 2015). The Committee notes the comments received from the Government in reply to the observations received from the ITUC, EI and the SMP-NATOW, and the SENTRO. The Committee notes the observations of the International Organisation of Employers (IOE) received on 1 September 2015, which are of a general nature.

Civil liberties and trade union rights

Monitoring mechanisms. In its previous comments, the Committee noted the information provided by the Government on the establishment of several monitoring entities. The Committee notes that the Government provides additional information on these mechanisms: (i) regarding the National Monitoring Mechanism (NMM), its mandate is to monitor the nation’s progress on the resolution of human rights violations, prioritizing, in the short term, cases of extrajudicial killings, enforced disappearances and torture, and to provide legal and other services; (ii) the participation of the Department of Labour and Employment (DOLE) in the NMM consists in referring cases to it, disseminating information, capacity building, allocating the budget and recommending rehabilitation plans for the victims and their relatives, including union leaders and members; (iii) the Department of Justice (DOJ) Special Task Force secured several convictions, including for the killings of a Bayan Muna Secretary General, a Young Officers Union Spokesperson and two media professionals; (iv) the Inter-Agency Committee on Extra-Legal Killings, Enforced Disappearances, Torture and Other Grave Violations of the Right to Life, Liberty and Security of Persons (IAC) was created in November 2012 by Administrative Order No. 35 (AO 35) and is charged with the mandate to investigate cases of extrajudicial killings, enforced disappearances, torture and other grave human rights violations perpetrated by state and non-state forces, to prioritize unsolved cases, and to create special investigation teams; (v) the IAC operational guidelines define extrajudicial killings so as to include cases where the victim was a member of or was affiliated with a labour organization, or was apparently mistaken or identified to be so and the victim was targeted and killed because of the actual or perceived membership; and (vi) in order to ensure expeditious investigation, prosecution and resolution of cases involving labour leaders and union members, the social partners were offered to actively participate in the investigations while members of the National Tripartite Industrial Peace Council – Monitoring Body (NTIPC–MB) were given observer status in the IAC. The Committee welcomes these developments and requests the Government to provide further information on the functioning of the NMM, the DOJ Special Task Force and the IAC in practice, including on the participation of social partners in IAC investigations as well as on the number and types of cases addressed by these mechanisms.

Allegations of violations of trade union rights. The Committee had previously noted the Government’s reply to the ITUC’s 2011 observations referring to certain violations of trade union rights in 2010, including the alleged killing of three trade union leaders, arrests and false criminal charges filed against trade union leaders and physical assaults of striking workers. The Committee notes that the Government has provided information about the developments in these cases: (i) in relation to the killing of Eduard Panganiban, elected Secretary of the United Strength of Workers in Takata, the main update provided is that the victim’s mother decided not to pursue the case; (ii) the case regarding the killing of Benjamin Bayles, organizer of the National Federation of Sugar Workers, is still at trial and is monitored by the IAC; (iii) regarding the killing of Carlo “Caloy” Rodriguez, President of the Calamba Water District Union, the main update provided is that assistance by the victim’s wife could not be obtained; and (iv) out of the seven remaining cases of alleged violations of trade union rights, in two cases the parties had reached a settlement, one was declared not to be linked to trade union rights, and the others are in the process of amicable settlement or pending resolution. The Committee had also previously requested the Government to provide its comments on the grave allegations made by the ITUC in 2012: (i) killings of four trade union leaders (Celito Baccay, board member of the Maeno-Giken Workers’ Organization; Noriel Salazar, President of the Union of COCOCHEM; Santos V. Manrique, President of the Boringot Small-scale Miners’ Cooperative and Chairperson of the Federation of Miners Aggrupation; and Elpidio Malinao, Vice-President of the University of the Philippines (UP) Los Banos Chapter of the Organization of Non-Academic Personnel of UP); (ii) abduction and arbitrary detention of Elizar Nabas, member of the National Federation of Sugar Workers; and (iii) continuing harassment of Remigio Saladero Jr, chief legal counsel of the Kilusang Mayo Uno (KMU). The Committee notes that the Government provides the following updates: (i) the cases of Celito Baccay, Noriel Salazar and Elpidio Malinao are still ongoing; (ii) the case of Santos V. Manrique was dismissed as not related to his trade union activities and the case of Alizar Nabas was dismissed due to insufficient evidence; and (iii) the charges against Remigio Saladero Jr and 71 other activists were dismissed due to insufficient evidence and lack of probable cause. Recalling the importance of avoiding any situation of impunity, the Committee firmly hopes that the investigations of all these serious allegations will be finalized in the near future with a view to establishing the facts, determining responsibilities and punishing the perpetrators, and requests the Government to provide detailed information on any developments in this regard.

The Committee notes with deep concern the ITUC’s 2015 observations alleging numerous violations of trade union rights, in particular: (i) the killing of Florencio “Bong” Romano, trade union leader from the KMU; (ii) harassment of Ed Cubelo, leader of the Toyota Motor Philippines Corporate Workers Association as well as the interrogation and harassment of KMU labour leaders in southern Midano; (iii) a shooting on employees of the banana company Sumifru by the company’s owner during a picket; (iv) the enforced disappearance of Benajmin Villeno, Southern Tagalog labour leader, as well as arbitrary detention of Randy Vegas and Raul Camposano, organizers of the public sector union centre Confederation for the Unity, Recognition and Advancement of Government Employees (COURAGE); and (v) a dramatic rise in false criminal charges brought against trade unionists, such as Artemio Robilla and Danilo Delegencia, leaders of the Margusan DOLE Stanfilco Workers’ Union–NAFLU–KMU.

The Committee notes the Government’s reply that: (i) the case of Florencio Romano was referred to the Regional Tripartite Monitoring Body (RTMB), the Philippine National Police Task Force Usig, as well as the IAC; (ii) the specific allegations of harassment of KMU members were brought to the attention of RTMB, the AFP Human Rights Office and the IAC, and concerning other allegations of harassment by the police and the armed forces, the RTMB has been mobilized in gathering relevant information and the cases were brought to the attention of the IAC; (iii) in relation to the shooting on Sumifru employees, the company’s leader Jesus Jamero was subjected to a complaint before the local authorities but the dispute was later settled by agreement between the parties; (iv) the allegations of enforced disappearance of Benajmin Villeno and arbitrary detention of Randy Vegas and Raul Camposano will be referred to the RTMB; and (v) the criminal charges brought against Artemio Robilla and Danilo Delegencia are under a new investigation. The Government also indicates that it conducted awareness-raising campaigns on observance of freedom of assembly, conducted capacity building for monitoring focal persons, and took measures to strengthen the existing monitoring structures. The Government further notes that to provide safeguards against false criminal charges against trade union members and to avoid detention of workers on the basis of their union activities, the DOLE and the Department of Justice issued Joint Clarificatory Memorandum Circular No. 1-15 to clarify the provisions of the DOLE–DILG–PNP–DND–AFP Joint Guidelines on the Conduct of the AFP/PNP Relative to the Exercise of Workers’ Right to Freedom of Association, Collective Bargaining, Concerted Actions and Other Trade Union Activities (AFP Guidelines). The Circular makes clear that before filing information in court on cases arising out of or related to labour disputes, prosecutors must secure clearance from the DOLE or the Office of the President, and that this requirement for clearance applies to cases arising out of the exercise of workers’ freedom of association, collective bargaining and other trade union activities.

The Committee further notes with deep concern the SENTRO’s observations concerning serious violations of trade union rights, in particular: (i) killings of Antonio Petalcorin, President of the Davao-based Network of Transport Organization; Rolando Pango, a farmworker leader; and Victorio Embang, president of the Maria Cecilia Farm Workers Association; (ii) assassination attempt on Anterio Embang, leader of the Maria Cecilia Farm Workers Association; (iii) violent suppression of strikes and other collective actions by the police and the armed forces; (iv) harassment of unionists and prevention from joining trade unions in export processing zones (EPZs) as well as breach of the Memorandum of Agreement between the DOLE and the Philippine Economic Zone Authority (PEZA); and (v) bankruptcy falsification to deny workers trade union rights. The Committee notes the Government’s reply indicating that: the case of Antonio Petalcorin was referred to the RTMB, the Philippine National Police (PNP) and the IAC but was declared not to be an incident of extrajudicial killing by reason of trade union activities or other advocacy under AO 35 while the case of Rolando Pango is considered as a case of extrajudicial killings and a special team will be created to investigate, file and prosecute the case. The Government further indicates that the DOLE conducts capacity-building activities and advocacies to ensure the implementation of the AFP Guidelines which aim to prevent the police and the armed forces from unduly suppressing strikes, demonstrations and other collective actions. The Committee hopes that all alleged cases of violations of trade union rights reported by the ITUC and the SENTRO will be the subject of appropriate investigations which will be vigorously pursued. The Committee requests the Government to provide information on any developments in this regard.

Human Security Act. In its previous comments, the Committee trusted that the Government would take all necessary steps to ensure that the Human Security Act would not be misused to suppress legitimate trade union activities. In this regard, the Committee notes that, in its observations, the SENTRO expressed concern about the possible negative implications of the Human Security Act on the exercise of trade union rights. The Committee notes that the Government repeats that this Act cannot be used against the exercise of trade union rights, especially legitimate trade union activities, and that the AFP Guidelines from 2012 provide that the armed forces and the police may only intervene in trade union activities if expressly requested to do so by the DOLE, if a criminal act has been, is or is about to be committed, or in case of actual violence arising out of a labour dispute. The Government further indicates that it has started, in cooperation with the ILO Manila, a Technical Cooperation Programme (TCP) on training and capacity building of all relevant stakeholders on international labour standards, including freedom of association and collective bargaining. The Committee takes note of this information.

Legislative issues

Labour Code. In its previous comments, the Committee noted the Government’s indication that there were three bills seeking to amend the Labour Code and that the NTIPC constituted a Tripartite Labour Code Review Team as an external partner in the drafting process. The Committee recalls the need to bring the national legislation into conformity with the following Articles of the Convention.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations of their own choosing, without previous authorization. Aliens. The Committee had previously referred to the need to amend sections 269 and 272(b) of the Labour Code so as to grant the right to organize to all workers lawfully residing within the Philippines (and not just those with valid permits if the same rights are guaranteed to Filipino workers in the country of the alien workers, or if the country in question has ratified this Convention and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98)). The Committee notes the Government’s statement that House Bill No. 894, which aimed to extend the right to self-organization to aliens in the Philippines failed to pass in the Congress, has been re-filed as House Bill No. 2543 and is now again pending before the Congress. The Committee also observes that in June 2015, House Bill No. 2543 was substituted by House Bill No. 5886 but that this Bill, while recognizing a degree of participation in trade union activities to all aliens, it only recognizes the right to self-organization and the right to join and assist labour organizations, to aliens with a valid working permit. Recalling that the right of workers, without distinction whatsoever, to establish and join organizations of their own choosing implies that anyone residing in the territory of a State, whether or not they have a residence or a working permit, benefits from the trade union rights provided by the Convention, the Committee firmly hopes that any relevant legislation will accurately reflect the Convention in this regard and will be adopted in the near future. The Committee requests the Government to provide information on any progress made in this respect.

Other categories of workers excluded from the rights of the Convention. The Committee notes the observations of the SENTRO: (i) concerning the lack of trade union rights of certain public servants (firefighters, prison guards, persons outside the armed forces and the police who by the nature of their function are authorized to carry firearms and public sector employees in policy-making positions or with access to confidential information); and (ii) that section 245 of the Labour Code excludes managerial employees from forming or joining any labour organizations. The Committee also notes the observations of the SENTRO, EI and the SMP-NATOW alleging widespread denial by employers of employees’ employment status, misclassification of employees, and the use of contract and temporary workers, who do not have employment status, which hinders them from joining trade unions, particularly in the public sector, electrical cooperatives, banks, and broadcasting services. The Government replies that: (i) a working group was created to address the issue of proliferation of contract and temporary workers in the public sector; and (ii) the DOLE developed and implemented administrative measures and proposed legislation that seek to address these issues, including a resolution urging the executive branch to cease from engaging temporary and contract personnel. In this respect, the Committee observes various initiatives to amend the provisions of the Labour Code and the proposed Civil Service Reform Code (House Bill No. 2400 and Senate Bill No. 1174) which are pending before the Congress. The Committee recalls that: (i) the right to organize should be guaranteed to all workers without distinction or discrimination of any kind, with the sole possible exception of the armed forces and the police; and (ii) it is not necessarily incompatible with the Convention to deny managerial and executive staff the right to join trade unions which represent other workers in the sector, provided they have the right to establish their own organizations to defend their interests. Accordingly, the Committee hopes that the proposed legislative amendments and any other relevant legislative measures will, in accordance with the abovementioned principles, ensure that all workers (including those in managerial positions or with access to confidential information, firefighters, prison guards and other public sector workers, temporary and outsourced workers, as well as workers without employment contract) fully benefit from the right to establish and join organizations to defend their occupational interests. The Committee requests the Government to provide information on any developments in this regard.

Registration requirements. The Committee had previously requested the Government to take the necessary measures to amend section 234(c) of the Labour Code so as to lower the excessive minimum membership requirement for forming an independent union (20 per cent of all the employees in the bargaining unit where the union seeks to operate) and expressed hope that House Bill No. 5927, seeking to remove the 20 per cent minimum membership requirement, would be adopted. The Committee notes that the Government reports that House Bill No. 5927 failed to pass in the Congress, that the removal of the 20 per cent requirement was reconsidered and lowered to 10 per cent in order to prevent proliferation of short-term unions and intra-union disputes, and that the new amendment is supported by the NTIPC. The Government also indicates that House Bill No. 2540, which also seeks to lower the minimum membership requirements for establishing trade unions, is pending before the Congress. The Committee observes that the 10 per cent requirement may still obstruct the right of workers to establish trade unions, in particular in large bargaining units, and recalls that while a minimum membership requirement is not in itself incompatible with the Convention, the number should be fixed in a reasonable manner so that the establishment of organizations is not hindered, and that what constitutes a reasonable number may vary according to the particular conditions in which a restriction is imposed. Accordingly, the Committee firmly hopes that the above legislative measures will lower the minimum membership requirements to a reasonable number in light of the abovementioned principle and in consultation with the social partners, and requests the Government to provide information on any progress made in this respect.

Article 3 of the Convention. Right of workers’ organizations to organize their administration and activities and to formulate their programmes without interference by the public authorities. The Committee had previously requested the Government to take the necessary measures to amend section 263(g) of the Labour Code and Department Order No. 40-G-03 so as to restrict governmental intervention leading to compulsory arbitration to essential services in the strict sense. The Committee notes that the Government indicates that House Bill No. 5933, which sought to install the necessary amendments, failed to pass in the Congress but that: (i) the Bill was re-filed as House Bill No. 5471; and (ii) the Secretary of Labour and Employment issued DOLE Department Order No. 40 H 13, which harmonizes the list of industries indispensable to the national interest, in which governmental intervention is possible, with the essential services criteria of the Convention. These industries include the hospital sector, electric power industry, water supply and air traffic control, and other industries may be included upon recommendation of the tripartite NTIPC. The Committee welcomes the Government’s initiative to limit governmental intervention leading to compulsory arbitration to industries which can be defined as essential services in the strict sense of the term. The Committee firmly hopes that the re-filed Bill will be adopted in the near future, and requests the Government to provide information on any relevant developments in this regard.

In its previous comments, the Committee expressed the firm hope that sections 264 and 272 of the Labour Code would be amended, taking into account the principle according to which no penal sanctions should be imposed against a worker for having carried out a peaceful strike. The Committee notes the Government’s indication that House Bill No. 5933 failed to pass in the Congress but is now pending before the Congress as House Bill No. 5471, and aims to remove penal sanctions for the exercise of the right to strike. The Committee understands, however, that once a final judgment declares the illegality of a strike, the Bill allows for criminal prosecution under section 264, which prohibits labour organizations to declare a strike without having complied with the bargaining and notice requirements provided for in the Labour Code. In this regard, the Bill does not appear to give full effect to the principle according to which measures of imprisonment or fines should not be imposed on any account, unless, during a strike, violence against persons or property, or other serious infringements of penal law have been committed, and these sanctions can be imposed exclusively pursuant to legislation punishing such acts. The Committee trusts that sections 264 and 272 of the Labour Code will be amended in the near future, giving full effect to the abovementioned principles, and requests the Government to provide information on any relevant developments in this regard.

The Committee had previously requested the Government to take the necessary measures to amend section 270 of the Labour Code, which subjected the receipt of foreign assistance to trade unions to prior permission of the Secretary of Labour. The Committee notes the Government’s indication that, on the one hand, the amended House Bill No. 5927, which is pending before the Congress, repeals section 270 of the Labour Code, and on the other hand, House Bill No. 2543 (previously House Bill No. 894), seeks to remove the requirement of Government permission for foreign assistance to trade unions. The Committee observes that in June 2015, House Bill No. 2543 was substituted by House Bill No. 5886. The Committee firmly hopes that the Bills removing the need for Government permission for foreign assistance to trade unions will be adopted in the near future, and requests the Government to provide information on any relevant developments in this regard.

Article 5. Right of organizations to establish federations and confederations. The Committee previously requested the Government to take the necessary measures in order to lower the excessively high requirement of ten union members for the registration of federations or national unions set out in section 237(1) of the Labour Code. The Committee notes the Government’s statement that House Bill No. 5927, which sought to address the issue, failed to pass in the Congress but the NTIPC endorsed an amended legislative proposal, which is pending before the Congress and which reduces the registration requirement for federations from ten to five duly recognized bargaining agents or local chapters. The Committee notes the Government’s statement that House Bill No. 2540 also addresses this issue. The Committee firmly hopes that legislative provisions will be adopted in the near future to lower the excessively high requirement of ten affiliated unions for the registration of federations or national unions, and requests the Government to provide information on any relevant developments in this regard.

The Committee is raising other matters in a request addressed directly to the Government.

[The Government is asked to supply full particulars to the Conference at its 105th Session and to reply in detail to the present comments in 2016.]