Definitive Report - Report No 165, June 1977

Case No 652 (Philippines) - Complaint date: 17-DEC-70 - Closed

16. The Committee examined this case already in May 1971, May 1972 and November 1973 and presented an interim report at each of these sessions. These reports are contained in paragraphs 60 to 65 of its 125th Report, 149 to 155 of its 131st Report and 423 to 430 of its 139th Report.

1. 16. The Committee examined this case already in May 1971, May 1972 and November 1973 and presented an interim report at each of these sessions. These reports are contained in paragraphs 60 to 65 of its 125th Report, 149 to 155 of its 131st Report and 423 to 430 of its 139th Report.
2. 17. The Philippines has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

• Examination of the case by the Committee during earlier sessions
  18. 18 The Airline Pilots Association of the Philippines (ALPAP) alleged that, in conformity with a decision of the Court of Industrial Relations, the pilots returned to work on 22 October 1970 after a strike. The management had nevertheless dismissed the President, Mr. Gaston, and officials of the Association, for their trade union activities. The management of Philippines Airlines (PAL) had been guilty of harassment, victimisation and union-breaking acts. The complainants added that the pilots had exhausted every legal remedy to solve the problem, but that the management had remained intractable. In desperation, the pilots had resigned en masse.
  19. 19 The Government stated in its observations that, under the country's legislation, three courses of action were open to a workers' organisation in the event of a labour dispute: recourse to the government conciliation services, concerted action, or action before the Court of Industrial Relations for unfair labour practices. The ALPAP had chosen the first course and the Bureau of Labor Relations, the Secretary of Labor himself and even the President of the Philippines had tried unavailingly for several months to settle the dispute. The union had then launched a strike which had paralysed 85 per cent of the air transport services. On 3 and 5 October 1970 and in accordance with the law, the President of the Philippines had referred the strike to the Court of Industrial Relations for compulsory arbitration. The latter had ordered a return to work pending examination of the main issues raised before it. The union having appealed, the full court upheld the return-to-work order and, generally speaking, the organisation complied with it. However, the Government continued, as Captain Gaston "technically" had not returned to work, he had been dismissed; ALPAP had reacted by threatening a mass strike of its members, a threat which was carried out when the management refused to reinstate Captain Gaston. The Government added that the issues involved in the dispute between ALPAP and the management were pending in the Court of Industrial Relations.
  20. 20 The Government stated in a later communication that the principal case filed by the ALPAP with the Court of Industrial Relations involve a demand for increased wages and the "Philippinisation" of pilots on the Manila-Karachi-Amsterdam route. The Government explained that, whereas the issue of the Karachi route had been heard by the Court early in the case, several other incidental aspects of the case (the claims by certain groups of pilots for reinstatement with seniority and privileges and also the petition filed by Captain Gaston for reinstatement) were still pending before the Court; the reason was that the parties still had not produced evidence concerning the reasons for the strike on 3 October 1970.
  21. 21 Documents submitted subsequently by the Government showed that, although various procedural developments had taken place in the case concerning the reinstatement of Captain Gaston, the case itself was still being heard. According to one of these documents from the management of PAL, Captain Gaston had been dismissed with effect from 23 October 1970 because he had deliberately and without justifiable cause refused to report for flight assignment, as the Court had confirmed and affirmed. No information was supplied regarding the other issues in dispute between ALPAP and PAL, which had been referred to the Court of Industrial Relations.
  22. 22 Under these conditions, the Committee recommended the governing Body in its .139th Report to request the Government to transmit the final judgement of the Court of Industrial Relations in the case concerning Captain Gaston as soon as this was available, together with the grounds adduced therefor, to keep it informed concerning the proceedings on the other matters in the dispute between PAL and ALPAP, and to supply copies of any judgement reached, together with the grounds adduced therefor.
  23. 23 Despite the time which has elapsed since these requests were addressed to the Government, the latter had not communicated the information requested. Consequently, in February 1975, the Committee appealed to the Government, as a matter of urgency, to be good enough to supply the information requested. The Government supplied certain information by letters of 13 May 1975, 22 January and 12 August 1976.2 The Government supplied further information in a letter of 21 December 1976.
• Replies received from the Government since the Committee last examined the case
  24. 24 The Government mentioned in its letter of 13 May 1975 that the Court of Industrial Relations had been replaced by the National Labor Relations Commission. It provided information on the case of Mr. Gaston, which was presented again in its letter of 21 December 1976 (see below) and pointed out in particular that the case had been examined by an arbiter of the aforementioned Commission.
  25. 25 The Government added that on 26 November 1970 the Court of Industrial Relations had ordered the ALPAP not to carry out its threat of collective resignation (or request for retirement) and confirmed this order on 11 December 1970. These decisions were not respected by most of the pilots and the operations of Philippines Airlines were thus paralysed for several months, causing very serious losses to the company tinder these conditions, the Government adds, it had been obliged in March 1971 to adopt a retrenchment programme and the Court of Industrial Relations had been constrained to authorise the dismissal of over 500 workers. In the meantime, ALPAP had introduced the resigned pilots to a competitor, Air Manila, which had agreed to pay them a monthly stipend although they were not performing any flight duties. Some had been unable to tolerate this arrangement and had asked PAL for reinstatement as new pilots; the rest of the pilots also tried to obtain reinstatement with PAL, particularly after Air Manila stopped paying them the stipend.
  26. 26 The Government added in its letter of 22 January 1976 that a decision had been handed down by the labour arbiter in the case of Mr. Gaston, but that appeal had been made through the National Labor Relations Commission. It added, in its letter of 12 August 1976, that the latter's decision had been appealed against to the Secretary of Labor under the terms of section 222 of the Labour Code.
  27. 27 The communication of 21 December 1976 from the Government and the appended ruling by the Secretary of Labor indicate that the President of the Philippines referred the conflict between PAL and the complainant to the Court of Industrial Relations pursuant to section 10 of Act No. 875 of the Republic. The full Court, as later the Supreme Court, confirmed its return-to-work order on 21 October 1970. Captain Gaston then started disciplinary procedure against the pilots who had recommenced work without awaiting his instructions; although he appeared on the morning of 22 October before the flight operations officer, he did not check in. He was subsequently informed that he was to make a flight the next day, 23 October, at 17 hours, in accordance with a longstanding schedule. He spent the evening in town until late at night and on the morning of the 23rd requested a 21-hour leave beginning immediately because, he said, he needed to rest after the strike. He also stated that he was not feeling well, but refused to report to the medical service. His leave request having been refused, he requested emergency leave and did not turn up for the flight. He was dismissed with effect from 23 October 1970 after having had an opportunity to defend himself in writing, for defiance of the return-to-work order.
  28. 28 Mr. Gaston refused on two occasions, the Government points out, to have his case examined by the Court of Industrial Relations and it was only a little less than one year later, on 1 September 1971, that he appealed to that Court. Action continued before that Court and then, subsequent to the legislative changes, before the new instances responsible. The National Labor Relations Commission decided on 10 May 1976 that Captain Gaston should be reinstated and receive one year's back pay. The Secretary of Labor, to whom appeal was made under section 222 of the Labour Code, reversed this decision on 1 October 1976, ruling that Mr. Gaston's dismissal for defying return-to-work orders was justified; the Commission nevertheless awarded him full pension rights. The Government stresses that Mr. Gaston was not dismissed for trade union activities but for refusal to obey the aforementioned order. No appeal against this decision has been made to the President of the Philippines.

B. B. The Committee's conclusions

• Conclusions by the Committee
  29. 29 The Committee notes that the Government's replies relate mainly to the dismissal of Mr. Gaston. However, referring to the other aspects of the dispute between PAL and the complainant, and particularly the strike in October 1970, the Committee points out that it has always considered the right to strike as a legitimate and even essential means of enabling workers and their organisations to promote and defend their occupational interests. In the present case, the President of the Republic, considering that the sector was a vital one for the country, referred the matter to the Court of Industrial Relations, in accordance with the legislation then in force, and the Court ordered a return to work.
  30. 30 Although the Committee has stated that strikes may be subject to restrictions or even prohibited in the public service or in essential services if these limitations are accompanied by compensatory guarantees, it has repeatedly stated, particularly in a case involving an airline company, that this principle might be set aside if a strike were declared illegal in undertakings which were not performing an essential service in the strict sense of the term.
  31. 31 Regarding the dismissal of Mr. Gaston, the Committee recalls the importance which it has always attached to the principle that workers, and particularly their trade union leaders, should be adequately protected against all acts of anti-union discrimination. However, it is within a national procedure that appeals against such acts can be examined most appropriately. In the present case, the Committee notes that, even if Mr. Gaston waited almost a year before appealing on 1 September 1971, a final decision was not given until 1 October 1976 and this decision was taken by the Secretary of Labor who overturned that given by the National Labor Relations commission.
  32. 32 Considering that proceedings which are exceptionally lengthy can result in a denial of justice, the Committee has already pointed out that cases of alleged dismissal on the grounds of trade union activities should be examined expeditiously since, in the absence of such proceedings, an offended employee will have a growing sense of injustice, with consequent harmful effects on industrial relations. The Committee also wishes to point out, as it has done in the past, that national legislation should make provision, in such cases, for reference of such grievances, in the last resort, for final settlement by a labour court or other impartial instance.

The Committee's recommendations

1. 33. In these circumstances, the Committee recommends the Governing Body:
   • (a) to recall the principles set out in paragraph 30 above regarding the right to strike;
   • (b) with particular reference to the dismissal of Mr. Gaston, whilst considering that it is at the national level that appeals against alleged acts of anti-trade union discrimination can best be examined, to call the attention of the Government to the considerations and principles set out in paragraph 32 above concerning the conditions to be satisfied by the procedures for such appeals.