Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

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 Trade Union Confederation (ITUC) received on 1 September 2019, of the International Transport Workers’ Federation (ITF) received on 3 September 2019 and of Education International (EI) received on 20 September 2019, referring to matters addressed below. The Committee requests the Government to provide its reply thereto.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 108th Session, June 2019)

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards (Conference Committee) in June 2019 concerning the application of the Convention. The Committee observes that the Conference Committee called upon the Government to: (i) take effective measures to prevent violence in relation to the exercise of workers’ and employers’ organizations legitimate activities; (ii) immediately and effectively undertake investigations into the allegations of violence in relation to members of workers’ organizations with a view to establishing the facts, determining culpability and punishing the perpetrators; (iii) operationalize the monitoring bodies, including by providing adequate resources, and provide regular information on these mechanisms and on progress on the cases assigned to them; and (iv) ensure that all workers without distinction are able to form and join organizations of their choosing in accordance with Article 2 of the Convention. The Committee also called on the Government to accept a high-level tripartite mission before the next International Labour Conference, and to elaborate in consultation with the most representative workers’ and employers’ organizations, a report on progress made for the transmission to this Committee by 1 September 2019. While noting the Government’s request to defer the high-level tripartite mission due to the thorough administrative and technical preparations that have to be undertaken in order to ensure attainment of responsive and substantive outcomes, the Committee expresses the hope that the Government will take the necessary arrangements to enable the high-level tripartite mission requested by the Conference Committee to take place before the next International Labour Conference.

Civil liberties and trade union rights

2016 ITUC observations. The Committee notes the Government’s reply to earlier observations from the ITUC, providing an update on the status of the investigations into the alleged assassination of two trade union leaders in 2016 and clarifying that the activities conducted in Compostela Valley, Mindanao were visits under the Community Support Programme of the Armed Forces of the Philippines (AFP), a peace and development effort aimed at establishing, developing and protecting conflict-resilient communities. The Committee further notes the Government’s general statement that the policy and programme reforms on freedom of association and collective bargaining implemented by the Government contributed to reduced incidence of labour disputes and labour related violence since 2011 and that this decline can also be attributed to the continuous efforts towards raising awareness and strengthening the capacity of all relevant Government institutions.

New allegations of violence and intimidation. The Committee notes, however, with deep concern the grave allegations of violence and intimidation of trade unionists communicated by the ITUC and EI, including: (i) assassination of 23 trade union leaders in 2018 and 2019, as well as several attempted assassinations documented by the Center for Trade Union and Human Rights (CTUHR); (ii) death threats targeting trade union leaders in the education sector in January and February 2019, as well as profiling, surveillance, harassment and red-tagging by the Philippine National Police (PNP) and AFP officials; (iii) violent dispersal of a number of workers’ strikes and protests in Marilao, Bulacan in June and July 2018, resulting in serious injuries, arrests, multiple charges (later dropped) and a week-long detention; (iv) violent dispersal of a strike by workers of a fruit-exporting company in Compostela Town in Compostela Valley in October 2018 and the murder of a trade union activist; (v) assassination of nine sugar cane workers during a protest at Hacienda Nene in Sagay, Negros Occidental; and (vi) suspected arson attack of a labour leader’s home during a strike in a banana-packing plant in December 2018. The Committee requests the Government to provide a detailed reply to these allegations.

Pending cases of alleged killings of trade union leaders. The Committee previously requested the Government to provide detailed information on the progress achieved on the prosecution and judicial investigations relating to three cases of alleged killings of trade union leaders previously reported by the ITUC. While taking due note of the update provided by the Government that the case of Rolando Pango should be reviewed by regional police for possible refiling, that the case of Florencio “Bong” Romano has not yet been deliberated on due to the non-reactivation of the Administrative Order (AO) 35 Inter-Agency Committee (IAC) and that in the case of Victoriano Embang, a case of murder was filed and an arrest warrant issued against suspects who are at large, the Committee regrets to observe that even after numerous years, none of these cases have yet been fully concluded. The Committee expresses the firm hope that the investigations into the serious allegations of killings of the above 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.

Monitoring mechanisms. In its previous comment, the Committee requested the Government to provide detailed information on the progress made by the Tripartite Validating Teams, the National Tripartite Industrial Peace Council Monitoring Body (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 the Government’s assertion that: (i) the existing mechanisms remain steadfast in ensuring expeditious investigation, prosecution and resolution of pending cases concerning alleged harassment and assassination of labour leaders; (ii) for example, after the alleged extra-judicial killing (EJK) of a trade unionist Dennis Sequeña was endorsed by the IAC, the Department of Justice ordered the set-up of a special investigating team to conduct the investigation and case build-up; and (iii) the existing mechanisms monitor 72 cases of EJK and attempted murders and have also been mobilized to validate and gather information on the 43 cases of alleged murders of unionists and union leaders, as identified by the CTUHR and discussed at the Conference Committee. The Committee welcomes the information provided by the Government to the Conference Committee that, in the spirit of social dialogue and tripartite engagement, trade unions’ and employers’ representatives were enlisted as deputized labour inspectors (as of January 2019, there were 241 deputized social partners) and that 16 Regional Tripartite Monitoring Bodies (RTMBs) across the country were ready to be mobilized in case of need, bringing about an immediate response and concrete appropriate action.

The Committee observes, however, that the Government representative at the Conference Committee recognized that the mandates, structures and internal rules of the monitoring mechanisms need to be further revisited. According to the Government representative, the IAC, for instance, needed strengthening by ensuring openness and transparency on the prosecution and movement of EJK cases, adopting inclusive criteria in the screening of these cases, relatedness to the exercise of freedom of association, capacity-building on freedom of association and on the collection of physical and vital forensic evidence to reduce heavy reliance on testimonial evidence. The Committee regrets to observe that the IAC has not yet reconvened and that due to the risks and dangers involved for the members of the Tripartite Validating Teams, this initiative has not yet been put into practice. The Committee further observes the concerns raised by the ITUC and the ITF with regard to the criteria used by the IAC to determine extra-judicial killings, the lack of effective monitoring mechanisms and of resources to investigate and prosecute all complaints of EJK of trade unionists and the need to rapidly identify perpetrators of violence and bring them to justice to combat impunity.

The Committee regrets that despite a number of initiatives undertaken, there continue to be numerous allegations of violence perpetrated against trade union members for which the presumed perpetrators have not yet been identified and the guilty parties punished. It notes in this regard the Government’s acknowledgment that conviction has indeed been the recurring and imposing challenge due to the amount of evidence required to convict perpetrators of a crime and that there is a need for major support on this aspect. The Committee observes that the Conference Committee also noted with concern the numerous allegations of murders of trade unionists and anti-union violence, as well as the allegations regarding the lack of investigation in relation to these allegations. In light of the above, the Committee requests the Government to take the necessary measures to ensure that all of the existing monitoring mechanisms can function properly and efficiently, including by allocating sufficient resources and staff, so as to contribute to effective and timely monitoring and investigation of allegations of EJK and other forms of violence against trade union leaders and members. In particular, the Committee expects that, despite the challenges faced, the Tripartite Validating Teams will be established in practice and the IAC will reconvene in the near future. The Committee requests the Government to continue to provide detailed information on the progress made by the existing monitoring mechanisms in ensuring the collection of the necessary information to bring the pending cases of violence to the courts.

Measures to combat impunity. The Committee previously requested the Government to provide detailed information on the steps taken to combat impunity, provide sufficient witness protection and build the capacity of the relevant State actors in the conduct of forensic investigation. The Committee welcomes the detailed information provided by the Government to the Conference Committee relating to numerous trainings, capacity-building activities, seminars and lectures conducted to enhance the knowledge and capacities of various State and non-State actors, including the police, military, prosecutors, enforcers, relevant actors in criminal investigation, local chief executives and social partners on international labour standards, the principles and application of the Convention, as well as on criminal investigation. The Committee also welcomes additional steps taken by the Government in this regard: elaboration of a workers’ training manual and of an e-learning module on freedom of association as part of the Labour and Employment Education Services (LEES); call by the Department of Labour and Employment (DOLE) on the PNP and AFP to ensure the observance of the guidelines on the conduct to be observed during the exercise of workers’ rights and activities; AFP and PNP commitment to integrating the Labour Code and the guidelines in their education programme; and review of the guidelines for amendment and updating. Finally, the Committee observes the Government’s explanation that reliance on testimonial evidence in the prosecution of criminal cases remains indispensable and that forensic evidence is supplemental in character and in addition that programmes should be conducted, together with the ILO, to enhance the capacity of the concerned agencies in gathering and handling forensic evidence. The Government representatives also informed the Conference Committee about a strategic planning conducted in March 2019 regarding the provision of adequate assistance and protection to witnesses under the Witness Protection Programme. Welcoming the above initiatives and measures undertaken, the Committee encourages the Government to continue to provide regular and comprehensive training to all concerned State actors in relation to human and trade union rights, as well as on the collection of evidence and the conduct of forensic investigation, with the aim of combating impunity, increasing the investigative capacity of the concerned officials and providing sufficient witness protection. The Committee invites the Office to provide any technical assistance required in this regard.

Review of operational guidelines of monitoring mechanisms. The Committee previously requested the Government to inform it of developments with regard to the review and updating of the operational guidelines of the investigating and monitoring bodies, as part of the National Action Plan under the DOLE-ILO-EU-GSP+ Development Cooperation Project. The Government indicated to the Conference Committee that one of the outcomes of the project is the review of the existing mechanisms to address cases of violations of workers’ civil liberties and trade union rights. Following the review of the operational guidelines and process structures of the NTIPC-MB, the RTMBs, the IAC and the National Monitoring Mechanisms (NMM), gaps and issues in the operationalization of these mechanisms have been identified, as well as problem areas encountered by investigative agencies, such as the PNP, the Commission on Human Rights (CHR) and the AFP Human Rights Officer. According to the Government, recommendations issued to help address the identified gaps and blockages will be taken up by the concerned agencies for consideration and possible implementation. Welcoming this information, the Committee trusts that the recommendations addressing the current gaps and blockages will be rapidly implemented so as to contribute to swift and efficient investigation of pending labour-related cases of EJK and other violations.

Legislative issues

Labour Code. In its previous comments, the Committee had 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 Convention. The Committee notes the Government’s assertion that, in coordination with the social partners, it has sought to address emerging labour, economic and social concerns affecting workers’ rights and exercise thereof and has achieved substantial progress in its commitments towards the promotion and protection of freedom of association rights, including a multitude of actions and reforms undertaken. On the other hand, the Committee notes that, according to the ITUC, there appears to be an absence of good faith by the Government to adopt the necessary measures that would bring the legislation into compliance with the Convention. The Committee further observes that the Conference Committee regretted that the reforms introduced to address some of the issues were not adopted and urged the Government to bring the law into compliance with the Convention. The Committee on Freedom of Association also trusted that the Government would make serious efforts to bring the Labour Code into conformity with the principles of freedom of association and referred these legislative aspects to this Committee (see 391st Report, October 2019, Case No. 2745, paragraph 50). The Committee expects that the Government will make serious efforts to align the Labour Code and other pieces of national legislation with the Convention on the following matters.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations of their own choosing, without previous authorization. Aliens. In its previous comments, the Committee had requested the Government to provide information on the progress made in relation to amendments 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, from the information provided by the Government to the Conference Committee that House Bill No. 4448 (extending the right to self-organization to aliens in the Philippines and withdrawing the prohibition of foreign trade union organizations to engage in trade union activities) and House Bill No. 1354 (allowing foreign individuals and foreign organizations to engage in trade union activities) are expected to be refiled in the 18th Congress. The Committee regrets the absence of any progress in this regard and expects that the necessary amendments will be adopted in the near future and that they will ensure that any individuals residing in the country, whether or not they have a residence or a working permit, can benefit from the trade union rights provided by the Convention. The Committee requests the Government once again 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 guarantees of the Convention. The Committee had previously pointed to the lack of trade union rights for certain categories of workers, including workers 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 (sections 253 and 255 of the Labour Code, Rule II Section 2 of the Amended Rules and Regulations Governing the Exercise of the Right to Government Employees to Organize, 2004). The Committee notes the Government’s indication that for the purposes of exercising the right to organize, the first parameter to take into account is whether or not a worker is covered by an employer–employee relationship. It states that under section 253 of the Labour Code, only employees may join trade unions for purposes of collective bargaining, whereas ambulant, intermittent, itinerant, self-employed and rural workers, as well as those without any definite employer may only form labour organizations for their mutual aid and protection. The Committee understands from this information that several categories of workers continue to be excluded from the full guarantees set out in the Convention and that no legislative changes have yet been made in this regard. It also observes the concerns expressed by the ITUC in this regard. In its previous comment, the Committee also noted the Government’s reference to House Bills Nos 4553 and 5477 and Senate Bill No. 641 (seeking to address concerns regarding Government employees’ right to self-organization) and House Bill No. 8767 (filed in December 2018 and aimed at addressing the gaps in public sector labour relations, particularly on the protection of the right to organize). The Committee observes, from the information provided by the Government to the Conference Committee, that the above Bills are expected to be refiled in the 18th Congress. Recalling that the legislative reform addressing the right to organize of the above-mentioned categories of workers has been pending for a number of years, the Committee firmly expects any legislative amendments currently pending on the issue to be adopted without delay so as to ensure that all workers, other than the armed forces and the police, 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 contracts are able to form and join the organizations of their own choosing to defend their occupational interests, and requests the Government to transmit copies of the amending legislation once adopted. The Committee reminds the Government that it can avail itself of the technical assistance of the Office, if it so desires.

Registration requirements. The Committee had previously referred to the need to amend 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, from the information provided by the Government to the Conference Committee that House Bill No. 1355 (seeking to lower the minimum membership requirement for registration of an independent union from 20 to 10 per cent and to develop an online system for trade union registration), House Bill No. 4446 (promoting “employee free choice” by making it easier for workers to join and establish unions through “majority sign-up”) and Senate Bill No. 1169 (seeking to reduce the minimum membership requirement from 20 to 5 per cent and to institutionalize online registration) are expected to be refiled in the 18th Congress. Observing that the Government has been referring to amending legislation for several years now, the Committee firmly expects that the necessary amendments will be adopted in the very near future, reducing the minimum membership requirement to a reasonable level 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. Essential services. The Committee previously requested the Government to provide information on the legislative progress made to ensure that Government intervention leading to compulsory arbitration is limited to essential services in the strict sense of the term (amendments to section 278(g) of the Labour Code). The Committee notes from the information provided to the Conference Committee that the previously mentioned House Bills Nos 175, 711, 1908 and 4447 and Senate Bill No. 1221 (aimed at rationalizing Government intervention in labour disputes by adopting the essential services criteria in the exercise of the assumption of jurisdiction power of the Secretary of Labour and Employment) are expected to be refiled in the 18th Congress and observes that no significant progress has thus been achieved in this regard. The Committee also notes that the Government simply reiterates information provided previously on the issuance in 2013 of Order No. 40-H-13 (an implementing guideline for section 278(g) of the Labour Code), which harmonizes the list of industries indispensable to the national interest with the essential services criteria of the Convention in the exercise of assumptive power of the Secretary of Labour and Employment over labour disputes, strikes and lockouts, and which should help facilitate the passage in Congress of the respective bill. The Committee recalls that the industries referred to in Order No. 40-H-13 include the hospital sector, electric power industry, water supply services (except small water supply services, such as bottling and refilling stations) and air traffic control; and that other industries may be included upon recommendation of the NTIPC. It observes in this regard that, according to the ITUC, the Government still retains an expansive instead of a strict and limited definition of essential services. Observing that the Committee on Freedom of Association has also previously addressed this issue (see 390th Report, June 2019, Case No. 2716, paragraph 78 and 391st Report, October 2019, Case No. 2745, paragraph 51) and recalling that the Government has been referring to legislative amendments to section 278(g) for numerous years, the Committee expects that these legislative amendments 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 report progress in this regard and to transmit copies of the amending legislation once adopted.

Penal sanctions for participation in a peaceful strike. In its previous comments, the Committee firmly trusted that sections 279 and 287 of the Labour Code would be amended in the very near future to ensure 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. The Committee notes that, as indicated above, House Bills Nos 175, 711, 1908 and 4447 and Senate Bill No. 1221 decriminalizing violations related to the assumption of jurisdiction and modifying the penalty for direct participation in illegal strike from dismissal or imprisonment to disciplinary measures or payment of a fine, are expected to be refiled in the 18th Congress. The Committee further observes the allegations raised by the ITF, indicating that in addition to sections 279 and 287 of the Labour Code, the 1946 Commonwealth Act has also been used to impose penal sanctions against an organizer of a peaceful strike. Regretting the absence of any substantial progress on the adoption of the previously announced amendments to sections 279 and 287 of the Labour Code, the Committee expects the Government to take the necessary measures to ensure that these amendments are adopted in the near future and that any other necessary changes are made in national laws or regulations to ensure 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. The Committee requests the Government to provide information on the progress made, as well as its reply to the ITF allegations.

Foreign assistance to trade unions. The Committee had previously referred to the need to amend 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, from the information provided by the Government to the Conference Committee, that the previously mentioned House Bill No. 4448 (regulating foreign assistance to Philippine trade unions), House Bill No. 1354 (allowing the extension of foreign assistance to labour organizations and workers’ groups) and Senate Bill No. 1169 (removing the prior authority requirement on foreign assistance to local trade union activities) will be refiled in the 18th Congress. Recalling that the Government has been referring to amending legislation for several years now, the Committee firmly expects that the previously reported 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 Labour Code. The Committee notes from the information provided to the Conference Committee that House Bill No. 1355 and Senate Bill No. 1169 reducing the number of affiliate local chapters required to register a federation from ten to five are expected to be refiled in the 18th Congress. Observing that the revision of the Labour Code on this point has been pending for several years, the Committee firmly expects that the legislative amendments lowering the excessively high requirement for registration will be adopted in the very near future and requests the Government to provide information on the progress achieved.

Application of the Convention in practice. The Committee welcomes the statistics provided by the Government on the number of workers’ organizations and the number of workers covered in both the private and public sectors, as well as the introduction of a prohibition to contract or subcontract when undertaken to circumvent the workers’ right to security of tenure, self-organization, collective bargaining and peaceful concerted activities (Executive Order No. 51, series of 2018).