Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

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

The Committee notes the observations of the International Organisation of Employers (IOE) received on 1 September 2016, which are of a general nature. The Committee also notes the observations from the International Trade Union Confederation (ITUC) received on 31 August 2016 referring to matters already being addressed by the Committee, matters to be considered in the framework of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), as well as new allegations concerning violations of the Convention in practice, including violent suppression of strikes and acts of anti-union harassment. Noting the Government’s reply thereto, the Committee requests the Government to supply details concerning the allegation of anti-union violence against striking distillery workers, and to continue providing information on the developments or outcome of the investigations being pursued concerning the alleged shooting at agricultural workers preparing for a strike and the allegations of harassment of several union officials and COURAGE union activists.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 105th Session, May–June 2016)

The Committee takes due note of the debate which took place within the Conference Committee in June 2016 and the ensuing conclusions, according to which the Conference Committee noted with concern the numerous allegations of anti-union violence and the lack of progress in the investigation of many such cases and, regretting that the legislative reforms introduced to address some of the Committee of Experts’ concerns had not been adopted, urged the Government to bring the law into compliance with the Convention. Furthermore, the Conference Committee requested the Government to: (i) undertake appropriate investigations on the alleged cases of violation of trade union rights in the near future with a view to establishing the facts, determining responsibilities and punishing the perpetrators; (ii) ensure that sufficient funds and staff are available to effectively carry out this work expeditiously so as to avoid a situation of impunity; (iii) establish monitoring bodies and provide regular information on these mechanisms and progress on the cases assigned to them; (iv) institute adequate measures to prevent the repetition of crimes against trade unionists, including the institution of protection schemes for trade unionists that are determined to be at risk by an impartial body; (v) bring national legislation into conformity with the Convention with regard to the requirement of government permission for foreign assistance to trade unions and to reduce the registration requirement from ten to five duly recognized bargaining agents or local chapters; (vi) amend the legislation to allow currently excluded classes of public servants to associate freely; (vii) take effective measures to prohibit the intentional misclassification of employees so as to deprive them of the right to freedom of association under the Convention; and (viii) accept a direct contacts mission in 2016 in order to follow up on the foregoing conclusions.

Civil liberties and trade union rights

Monitoring mechanisms. In its previous comments, the Committee requested the Government to provide further information on the functioning of the monitoring bodies in practice, including on the participation of social partners as well as on the number and types of cases addressed by these mechanisms.

The Committee notes the information provided by the Government on the National Monitoring Mechanism (NMM), a component of the EPJUST Programme, in particular: (i) its Operational Guidelines, which inter alia provide the coordinative mechanism among its members for the immediate provision of services, which include but are not limited, to legal services, in promoting, protecting and addressing the rights of the victims and/or members of their families, and establish a local monitoring mechanism in the regions; (ii) its composition, including the Commission on Human Rights (CHR), government agencies (such as the Presidential Human Rights Committee, the Department of Justice (DOJ), the Department of Interior and Local Government (DILG), the Department of National Defense (DND), the Armed Forces of the Philippines (AFP), the Philippine National Police (PNP), the Department of Labor and Employment (DOLE), the Office of the Presidential Adviser on the Peace Process) and civil society organizations; and (iii) its functioning, notably its regular meetings and the present conduct of an audit or investigation into the human rights situation on Semirara Island following the accident at the open-cast coal mine.

Furthermore, the Committee notes the following information provided by the Government: (i) the DOJ Special Task Force and 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) continue to perform their functions: inventory of cases, investigation of unsolved cases, monitoring and reporting cases under investigation, preliminary investigation, and trial; investigation and prosecution of new cases; and submission of report to the President; (ii) due to the transition in the DOJ leadership, the IAC has not yet convened as of the reporting date (26 August 2016); (iii) DOLE Regional Tripartite Monitoring Bodies (RTMBs) in coordination with the regional counterpart of the IAC members such as the DOJ, CHR, PNP and AFP continue to function in the monitoring, investigation and prosecution of reported cases; and (iv) capacity-building activities were conducted to aid the tripartite monitoring bodies in the delivery of their functions such as case profiling and reporting, and to strengthen the inter-agency coordination between and among the IAC government agencies in charge of investigation and prosecution of cases and the labour and employer representatives of the National Tripartite Industrial Peace Council – Monitoring Body (NTIPC–MB) and RTMBs tasked to monitor, document and process reported violations of international labour standards, particularly freedom of association and collective bargaining. The Committee also notes from the Government’s reply to the 2016 ITUC observations that, on 25 May 2016, TIPC Resolution No. 1, s. 2016, was adopted setting up independent and capacitated case-based NTIPC–MB Tripartite Validating Teams (one DOLE representative, one representative from the labour sector and one representative from the employers’ sector) for cases of extrajudicial killings (EJK), enforced disappearances, torture, harassment and other grave violations committed against trade unionists, which require further validation or review of gathered information for it to serve as significant support to case build-up and resolution; the DOLE approved for the present year a budget allocation in support of the functioning of the Tripartite Validating Teams, one for each of the identified ILO cases.

Welcoming the detailed information provided by the Government, the Committee requests the Government to continue to provide information on the working of the above monitoring mechanisms in practice, the progress on cases addressed by them and further steps taken or contemplated to ensure a climate of justice and security for trade unionists in the Philippines.

Allegations of violations of trade union rights

ITUC observations of 2011 and 2012. The Committee had firmly hoped that the investigations of the serious allegations contained in the 2011 ITUC observations concerning the alleged killings of three trade union leaders and seven cases of alleged trade union rights violations including arrests and false criminal charges filed against trade union leaders and physical assaults of striking workers, and in the 2012 ITUC observations concerning inter alia the alleged killings of four trade union leaders, would be finalized in the near future with a view to establishing the facts, determining responsibilities and punishing the perpetrators, and requested the Government to provide details on any developments in this regard.

The Committee notes that, regarding the 2011 ITUC observations: (i) in relation to the killing of Eduard Panganiban, elected Secretary of the United Strength of Workers in Takata, the Government reiterates that the victim’s mother executed a sworn affidavit on 5 April 2014 stating her lack of interest to pursue the case; (ii) regarding the killing of Benjamin Bayles, organizer of the National Federation of Sugar Workers, the Government again states that the case is still under trial with the prosecution presenting its 19th witness and closely monitored by the IAC which had identified it as an extra-judicial killing; (iii) concerning the killing of Carlo “Caloy” Rodriguez, President of the Calamba Water District Union, the Government reiterates that the victim’s wife remains uncooperative and adds that, to date, efforts are still being made to look for possible witnesses to identify the suspect(s) that may lead to the closure of the case; (iv) out of the five remaining cases of alleged violations of trade union rights, in two cases the parties have reached an amicable settlement, in one case (alleged union busting) it was ruled that no violation of trade union rights had been committed, in one case (violent suppression of picket lines), the DOLE engaged the Metropolitan Manila Development Authority in awareness-raising activities as recommended by the NTIPC–MB, and one case is still pending resolution before the Supreme Court.

Concerning the 2012 ITUC observations, the Committee notes that the Government, recalling that the case of the killing of Santos V. Manrique had been dismissed as not related to his trade union activities, indicates that: (i) as regards the killing of Celito Baccay, board member of the Maeno-Giken Workers’ Organization, PNP investigators could not yet determine the perpetrators and the motive for lack of trace evidence at the crime scene and potential eyewitnesses which could provide investigative leads; his wife did not pursue the case; and the prosecutor was adamant about not filing the case because of weak evidence against the suspected perpetrator; (ii) as to the killing of Noriel Salazar, President of the Union of COCOCHEM, after preliminary investigation, a case for murder was filed against a suspect on 4 August 2011 and is still under trial; (iii) concerning the killing of Elpidio Malinao, Vice-President of the University of the Philippines (UP) Los Banos Chapter of the Organization of Non-Academic Personnel of UP, an alias warrant of arrest was issued on 12 December 2011 against a suspect for the crime of murder, and a continuous search operation is being conducted; and (iv) regarding the abduction and arbitrary detention of Elizar Nabas, member of the National Federation of Sugar Workers, he was detained in jail and discharged on 23 January 2013 after a surety bond, the case of arson filed against him was dismissed due to insufficient evidence on 5 September 2013, and he was arrested for the crime of murder on 2 October 2013 and released on 28 July 2014 after a cash bond.

The Committee observes that, out of the six remaining cases of killings of trade union leaders, two are still under trial, in one an alias warrant has been issued and in three one of the reasons or the only reason given for the lack of progress in the investigation is the lack of cooperation or interest of the victim’s family. The Committee considers that cases of alleged extrajudicial killings of trade union leaders should, due to their seriousness, be investigated and, where evidence (not necessarily in the form of witnesses) exists, prosecuted ex officio without delay, regardless of desistance or disinterest of the parties to pursue the case, and even in the absence of a formal criminal complaint being lodged by a relative. The Committee further recalls that justice delayed is justice denied and that it is important to avoid any situation of impunity. The Committee expresses the firm hope that the investigations into the serious allegations of killings of trade union leaders as well as the ongoing judicial proceedings in this regard, will be completed in the very near future with a view to shedding full light, at the earliest date, on the facts and the circumstances in which such actions occurred and, to the extent possible, determining responsibilities, punishing the perpetrators and preventing the repetition of similar events. The Committee requests the Government to provide information on any progress achieved in this regard, as well as on any developments in relation to the aforementioned case pending resolution before the Supreme Court.

2015 and 2016 ITUC and Center of United and Progressive Workers (SENTRO) observations. The Committee previously hoped that all alleged cases of violations of trade union rights reported by the ITUC and by the SENTRO in 2015 would be the subject of appropriate investigations which would be vigorously pursued, and requested the Government to provide information on any developments in this regard.

The Committee notes with regret that the Government provides no information concerning developments in relation to: (i) the killing of trade union leader Victorio Embang alleged by the SENTRO in 2015; and (ii) certain violations of trade union rights alleged by the ITUC in 2015, especially the enforced disappearance of trade union leader Benjamen Villeno and the arbitrary detention of trade unionists Randy Vegas and Raul Camposano.

The Committee notes that, as regards the killing of trade union leader Florencio “Bong” Romano, the Government indicates that: (i) the case has been endorsed to the RTMB of DOLE Region IV-A and is still pending investigation by the PNP-Task Force Usig; (ii) the IAC will deliberate on this case at its next meeting; (iii) no conclusion has yet been made as to whether the killing is labour-related; (iv) a final report will be elevated to NTIPC–MB upon completion of the RTMB Region IV-A, PNP-Task Force Usig and IAC reports; and (v) livelihood assistance from DOLE for the victim’s family is being explored. The Committee notes the Government’s reply concerning the remaining SENTRO allegations, including the killing by gunshots on 29 November 2014 of Rolando Pango, a farmworker leader, in particular that: (i) Mr Pango was involved in the agrarian and labour disputes in Hacienda Salud, a sugar plantation in Barangay Rumirang, Isabela; he was instrumental in organizing the plantation workers and had filed a case before the National Labor Relations Commission (NLRC) against management for unlawful termination of 41 workers; (ii) he was advised in June 2014 to desist from assisting and organizing people at the plantation and subsequently received death threats; (iii) the case was considered by the IAC as an extrajudicial killing and endorsed to the RTMB of DOLE Region VI; and (iv) on 17 April 2015, a murder case against alias Andres Gumban and alias Gante has been filed but dismissed on 10 November 2015 due to insufficient evidence.

The Committee observes that some ITUC allegations (false criminal charges brought against trade union leaders Artemio Robilla and Danilo Delegencia, and shooting at picketing workers) and SENTRO allegations (killing of trade union leader Antonio Petalcorin) are already being dealt with by the Committee on Freedom of Association in the framework of Cases Nos 3119 and 3185, respectively.

The Committee firmly hopes that all remaining alleged cases of violations of trade union rights reported by the ITUC and by the SENTRO in 2015 will be the subject of appropriate investigations which will be vigorously pursued, and requests the Government to provide information on any developments in this respect. With particular regard to the killings of Rolando Pango, Florencio “Bong” Romano as well as Victorio Embang, the Committee requests the Government to provide information on the relevant resolutions issued by the NTIPC, to indicate whether the killings of these trade union leaders have benefited or are benefiting from the resources and powers of the high-level IAC in order to ensure effective steps to combat impunity, and to provide details on the outcome of the investigations conducted in that framework or on the negative outcome of the second IAC review, as the case may be.

Human Security Act. The Committee notes that, similarly to the SENTRO in 2015, the ITUC expresses concern in its 2016 observations about the possible negative implications of the Human Security Act on the exercise of trade union rights. In view of the Government’s previous assurances referring to the 2012 AFP Guidelines, the Committee continues to trust that the Government will take all necessary steps to ensure that the Human Security Act will not be misused to suppress legitimate trade union activities.

Legislative issues

Labour Code. In its previous comments, the Committee noted the Government’s indication that there were several 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) (now renumbered to sections 284 and 287(b)) of the Labour Code so as to grant the right to organize to all workers residing in the Philippines. The Committee notes the Government’s statement that House Bill No. 5886 was approved by the House on 16 December 2015 and received by the Senate on 6 January 2016; and that it did not pass into law in the 16th Congress but may possibly be pursued in the next Congress as refiled House Bill No. 1354. Having previously noted that House Bill No. 5886, while recognizing a degree of participation in trade union activities to all aliens, only recognizes the right to self-organization and the right to join and assist labour organizations, to aliens with a valid working permit, the Committee wishes to recall 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 expects that any relevant draft legislation will accurately reflect the Convention in this regard and will be adopted in the very near future. It requests the Government to provide information on progress achieved in this respect.

Other categories of workers excluded from the rights of the Convention. The Committee previously noted the observations of the ITUC, SENTRO, Education International (EI) and the SMP–NATOW alleging the lack of trade union rights of certain public servants and managerial employees, as well as the widespread denial by employers of employees’ employment status, the misclassification of employees and the use of contract and temporary workers who do not have the right to join trade unions. The Committee had hoped that the 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) pending before the Congress would ensure that all workers, except the armed forces and the police, fully benefit from the right to organize. The Committee notes the Government’s statement that House Bill No. 2400 and Senate Bill No. 1174 have been pending with the relevant parliamentary committees since August 2013, and that they did not pass into law in the 16th Congress, but may possibly be pursued in the next Congress. The Committee also notes the Government’s commitment to eliminate illegitimate forms of contractualization obscuring the existence of an employment relationship and eroding the right to security of tenure, including in the public sector. The Committee firmly hopes that the proposed legislative amendments and any other relevant legislative measures will ensure in the near future that all workers (other than the armed forces and the police as determined by national law), including those in managerial positions or with access to confidential information, firefighters, prison guards and other public sector workers, as well as temporary or outsourced workers and workers without employment contract, without distinction or discrimination of any kind, enjoy 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 referred to the need to amend section 234(c) (now renumbered section 240(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). The Committee notes that the Government reports that: (i) House Bill No. 6238 seeking to reduce the minimum membership requirement for registration of unions from 20 to 10 per cent, was approved by the House on 16 December 2015 and received by the Senate on 6 January 2016; (ii) House Bill No. 2540 aiming at establishing an efficient system to strengthen workers’ right to self-organization and collective bargaining, has remained pending with the Committee on Labor and Employment since 2 September 2013; (iii) given that these bills did not pass into law in the 16th Congress, the same may possibly be pursued in the next Congress; and (iv) House Bill No. 6238 has been refiled as House Bill No. 1355. Reiterating that a 10 per cent requirement may still obstruct the right of workers to form trade unions, the Committee expects that in the near future legislative measures will be taken to lower the minimum membership requirements in consultation with the social partners to a reasonable number so that the establishment of organizations is not hindered, and requests the Government to provide information on progress achieved in this respect.

Article 3. Right of workers’ organizations to organize their activities and to formulate their programmes without interference by the public authorities. The Committee previously referred to the need to amend section 263(g) (now renumbered section 278(g)) of the Labour Code and Department Order No. 40 G 03 to restrict government intervention leading to compulsory arbitration, to essential services. Welcoming the issuance of Order No. 40-H-13, which harmonizes the list of industries indispensable to the national interest with the essential services criteria of the Convention, the Committee expressed the firm hope that House Bill No. 5471, which sought to install further necessary amendments, would be adopted in the near future. The Committee notes the Government’s statement that House Bill No. 5471, aiming at rationalizing government interventions in labour disputes by adopting the essential services criteria in the exercise of the assumption or certification power of the Secretary of Labor and Employment, and decriminalizing violations thereof, as substituted by House Bill No. 6431, was approved on second reading on 2 February 2016 but failed to pass during the remaining sessions of the 16th Congress; it may possibly be pursued in the next Congress and was refiled as House Bills Nos 175, 711 and 1908. The Committee expects that the proposed legislative amendments will ensure in the near future that government intervention leading to compulsory arbitration is limited to industries which can be considered as essential services in the strict sense of the term, and requests the Government to provide information on any developments in this respect.

In its previous comments, the Committee trusted that sections 264 and 272 (now renumbered sections 279 and 287) of the Labour Code would be amended to ensure that no penal sanctions are imposed against a worker for having carried out a peaceful strike. The Committee notes the Government’s indication that House Bill No. 5471, as substituted by House Bill No. 6431, failed to pass during the 16th Congress; and that, subject to the discretion of the new administration, such a bill, refiled as House Bills Nos 175, 711 and 1908, shall be part of DOLE Legislative Priority Measures for the 17th Congress. Having previously noted that the Bill, once a final judgment declares the illegality of a strike, allows for criminal prosecution under section 279, which prohibits labour organizations from declaring a strike without having complied with the bargaining and notice requirements, the Committee wishes to recall that 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 that these sanctions can be imposed exclusively pursuant to legislation punishing such acts. The Committee firmly trusts that sections 279 and 287 of the Labour Code will be amended in the very near future, thus ensuring that no penal sanctions are imposed against a worker for having carried out a peaceful strike, even if non-compliant with bargaining or notice requirements. It requests the Government to provide information on any progress achieved in this regard.

The Committee had previously referred to the need to amend section 270 (now renumbered section 285) 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 that the Government reports that House Bill No. 5886, aiming at allowing foreign individuals or organizations to engage in trade union activities and to provide assistance to labour organizations or groups of workers, was approved by the House on 16 December 2015 and received by the Senate on 6 January 2016; and that, given that it did not pass into law in the 16th Congress, it may possibly be pursued in the next Congress as refiled House Bill No. 1354. The Committee also notes the Government’s indication that House Bill No. 5927, which sought to repeal section 285 of the Labour Code, also failed to pass in the Congress but may possibly be pursued in the next Congress. The Committee expects that the proposed legislative amendments 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 developments in this regard.

Article 5. Right of organizations to establish federations and confederations. The Committee previously referred to the need to lower the excessively high requirement of ten union members for the registration of federations or national unions set out in section 237(1) (now renumbered section 244) of the Labour Code. The Committee notes the Government’s statement that: (i) House Bill No. 6238, which reduces the registration requirement for federations from ten to five duly recognized bargaining agents or local chapters, was approved by the House on 16 December 2015 and received by the Senate on 6 January 2016, but did not pass into law in the 16th Congress and may possibly be pursued in the next Congress as refiled House Bill No. 1355; and (ii) House Bill No. 2540, which also addresses the issue, has remained pending with the Committee on Labor and Employment since 2 September 2013. Welcoming the above initiative to reduce the registration requirement for federations or national unions from ten to five duly recognized bargaining agents or local chapters, the Committee expects that the proposed legislative amendments will lower the excessively high requirement for registration and will be adopted in the very near future. It requests the Government to provide information on any progress achieved in this regard.

Direct contacts mission. The Committee notes that the Government accepted the direct contacts mission requested by the Conference Committee in order to follow up on its conclusions. The Committee understands that the mission will take place in the near future and trusts that it will be able to assist the Government and the social partners in finding appropriate solutions to the outstanding matters raised by the ILO supervisory bodies concerning the application of the Convention in law and in practice.

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