Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

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

The Committee notes the observations received on 1 September 2018 from the International Trade Union Confederation (ITUC) and requests the Government to provide its comments thereon.

The Committee notes that, at the request of the 2016 Conference Committee on the Application of Standards, a direct contacts mission (DCM) was carried out in the country from 6 to 10 February 2017. The Committee welcomes the constructive engagement of all parties noted by the DCM and takes due note of its conclusions and recommendations which covered: (i) civil liberties and trade union rights; (ii) legislative issues; and (iii) the promotion of a climate conducive to freedom of association.

Civil liberties and trade union rights

The Committee notes the Government’s detailed reply in relation to the earlier observations from the ITUC referring in particular to the efforts of the Department of Labor and Employment (DOLE) to conciliate in cases of tense industrial action, as well as interventions by the police to investigate alleged cases of violence and the settlement of certain disputes through the creation of a tripartite technical working group. The Government also refers to the on-going investigation by the Commission on Human Rights of a case of alleged harassment of several union officials and Confederation for Unity, Recognition and Advancement of Government Employees (COURAGE) union activists.

The Committee notes with deep concern however the new and grave allegations of the assassination of two trade union leaders in 2016, one of whom was gunned down in front of the National Labor Relations Commission in Quezon City, and the ITUC’s concern that the recently declared war by the Armed Forces of the Philippines (AFP) against so-called “reds” is reminiscent of earlier years when union and labour organizers were harassed, arrested, jailed, abducted and murdered after being tagged as “reds” by the military. The ITUC provides examples of targeted arrests of KMU labour organizers in 2017 and several allegations of police violence and arrests during peaceful strike action. The Committee requests the Government to provide a detailed reply to these allegations.

Monitoring mechanisms. In its previous comments, the Committee requested the Government to continue to provide information on the functioning of the monitoring bodies 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.

The Committee notes that the Government recalls the establishment of the Administrative Order (AO) 35 Inter-Agency Committee (IAC) on extra-legal killings, enforced disappearances, torture and other grave violations of the right to life, liberty and security of persons, which as of 2016 had reviewed 335 cases, including 65 cases of extra-judicial killings (EJK) and attempted murders that were endorsed by the National Tripartite Industrial Peace Council – Monitoring Body (NTIPC-MB). Of these 65 cases, only 11 were verified by the Committee as EJK cases. The Committee regrets however to note from the Government’s report that AO35 IAC has yet to reconvene due to the transition in the leadership of the Department of Justice and trusts that it will begin meeting again in the very near future. The Government indicates in the meantime that the DOLE issued AO32 on 25 January 2018 setting forth guidelines governing the mechanisms and functions of the NTIPC-MB and the Regional Tripartite Monitoring Bodies relative to cases involving EJK, harassment and abduction of trade union officers and members in the exercise of their right to freedom of association and collective bargaining. AO32 also institutionalized the creation of Tripartite Validating Teams. While noting the recent initiatives taken by the Government, including the creation of Tripartite Validating Teams, the Committee is nevertheless obliged to note with regret that several years later there remain numerous cases of trade union murders and other acts of violence for which the presumed perpetrators have yet to have been identified and the guilty parties punished. The Committee requests the Government to provide detailed information on the progress made by the Tripartite Validating Teams, the NTIPC-MB and other relevant bodies in ensuring the collection of the necessary information to bring the pending cases of violence to the courts and the outcome in this regard.

The Committee notes in this regard the conclusions of the DCM on steps to combat impunity and the Government’s indication that recommendations were made for reforms towards providing sufficient witness protection and building the capacity of prosecutors, enforcers and other relevant actors, especially in the conduct of forensic investigations. The Committee requests the Government to provide further detailed information on the steps taken in this regard.

The Committee notes the Government’s information in relation to the progress made on the prosecution of the three cases of killings of trade union leaders that had been raised in the ITUC previous observations but regrets to observe that the murder case of Rolando Pango, a farmworker leader, was dismissed due to insufficient evidence, the case of Florencio “Bong” Romano has not yet been deliberated on due to the non-reactivation of AO35 IAC, while the murder case of Victoriano Embang has been docketed but not yet concluded. 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 detailed information on any progress achieved in this regard.

The Committee firmly hopes that all remaining alleged cases of violations of trade union rights will be the subject of appropriate investigations which will be vigorously pursued and that effective measures to ensure accountability will be taken by the Government. Recalling the DCM emphasis on the need for enforced implementation at national, regional and local levels via inclusive, responsive, transparent and accountable quality law enforcement, the Committee requests the Government to provide information on any developments in this regard.

Legislative issues

Labour Code. In its previous comments, the Committee has been noting the numerous amendment bills pending before Congress over many years and in various forms with a view to bringing 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 284 and 287(b) of the Labor 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. 1354 allowing foreign individuals to engage in trade union activities and House Bill No. 4488 allowing aliens to exercise their right to self-organization are ongoing deliberation at the House Committee level. While observing that the Government has been referring to amending legislation for several years now, and that the legislation has been introduced but not approved in prior sessions of the Congress, the Committee trusts that the necessary amendments will be adopted in the very near future and that they will ensure that any individual residing in the territory of a State, whether or not they have a residence or a working permit, benefit from the trade union rights provided by the Convention. The Committee requests the Government to provide information on progress made in this respect and to transmit copies of the amending legislation once adopted.

Other categories of workers excluded from the rights of the Convention. The Committee recalls that its previous comments expressed the hope that proposed legislative amendments would 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, enjoy the right to establish and join organizations to defend their occupational interests. The Committee notes that the Government refers in its report to House Bill Nos 4533 and 5477 and Senate Bill No. 641 establishing a Civil Service Code that are pending with the relevant committees and recalls that it ratified the Labour Relations (Public Service) Convention, 1978 (No. 151), in October 2017. The Committee, welcoming the Government’s recent ratification of Convention No. 151, requests it to indicate the measures taken to ensure that all workers, without distinction whatsoever, including those mentioned above, are able to form and join the organizations of their own choosing and to transmit copies of the amending legislation once adopted.

Registration requirements. The Committee had previously referred to the need to amend section 240(c) of the Labor 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 refers to a number of bills for the reduction of the minimum membership requirement: (i) House Bill No. 1355 seeking to reduce minimum membership requirement for registration of unions from 20 to 10 per cent has already been approved and is pending second reading; (ii) Senate Bill No. 1169 seeking to reduce the minimum membership requirement for registration of unions from 20 to 5 per cent and removing the priority authority requirement on foreign assistance; and (iii) House Bill No. 4446 removing the requirements for the registration of local chapters and promoting “employee free choice” by making it easier for workers to join and/or establish unions through “majority sign-up”. While observing that the Government has been referring to amending legislation for several years now, the Committee expects that the necessary amendments will be adopted in the very near future reducing the minimum membership requirements so that the establishment of organizations is not hindered. The Committee requests the Government to provide information on progress made in this respect and to transmit copies of the amending legislation once adopted.

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 278(g) of the Labor Code 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 expected that the pending draft legislative amendments would ensure that government intervention leading to compulsory arbitration was limited to industries which can be considered as essential services in the strict sense of the term. The Committee notes the Government’s indication in its report that there are four bills filed at the House of Representatives seeking to amend section 278 (House Bills Nos 175, 711, 1908 and 4447), while one Bill was ongoing deliberation in the Senate (Senate Bill No. 1221). The Committee trusts that the legislative amendments to section 278(g) to which the Government has been referring for numerous years will be adopted in the very near future and that they will ensure that government intervention leading to compulsory arbitration is limited to essential services in the strict sense of the term. The Committee requests the Government to provide information on the progress made in this regard and to transmit copies of the amending legislation once adopted.

In its previous comments, the Committee trusted that sections 279 and 287 of the Labor 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 reiteration that House Bills Nos 175, 711, 1908 and 4447 are pending with the House Committee on Labor and Employment, while Senate Bill No. 1221 is ongoing deliberation in the Senate Committee on Labor, Employment and Human Resources Development. While observing that the Government has been referring to amending legislation for several years now, the Committee firmly trusts that sections 279 and 287 of the Labor 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 made in this regard and to transmit copies of the amending legislation once adopted.

The Committee had previously referred to the need to amend section 285 of the Labor Code, which subjected the receipt of foreign assistance to trade unions, to prior permission of the Secretary of Labor. The Committee notes that the Government reports that House Bill No. 1354 also provides for the extension of foreign assistance to labour organizations and workers’ groups, while House Bill No. 4448 withdraws the prohibition of foreign trade union organizations to engage in trade union activities and the regulation of foreign assistance to Philippine trade unions. Both Bills are pending with the Committee on Labor and Employment. While observing that the Government has been referring to amending legislation for several years now, 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 very near future. It requests the Government to provide information on any progress made in this regard and to transmit copies of the amending legislation once adopted.

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 locals or chapters duly recognized as collective bargaining agents for the registration of federations or national unions set out in section 244 of the Labor Code. The Committee notes the Government’s statement that House Bill No. 1355 reducing the minimum membership requirement for registration of unions or federations has already been approved at the House Committee level and is pending for second reading, while Senate Bill 1169 reducing the membership requirement for federations from ten to five duly recognized bargaining agents or local chapters is ongoing deliberation in the Senate Committee. While observing that the Government has been referring to amending legislation for several years now, 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 made in this regard and to transmit copies of the amending legislation once adopted.

The Committee further notes with interest the information concerning the progress made within the framework of the DOLE-ILO-EU-GSP+ Development Cooperation Project aimed at further improving the capacity of labour, employers and government toward the better implementation of freedom of association and collective bargaining. The project launch in 2017 resulted in the signing of a Tripartite Manifesto of Commitment and Collective Effort to Sustain Observance and Further Improvement on the Application of the Principles of Freedom of Association and Collective Bargaining. Noting that part of the National Action Plan under the project is the review and updating of the operational guidelines of the investigating and monitoring bodies in order to further strengthen and improve their operationalization as well as coordination and interplay, the Committee requests the Government to inform of all further developments in this regard.

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

[The Committee requests the Government to reply in full to the present comments in 2020.]