Effect given to the recommendations of the committee and the Governing Body - Report No 332, November 2003

Case No 2195 (Philippines) - Complaint date: 15-APR-02 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 131. The Committee last examined this case at its meeting in November 2002. Recalling that the responsibility for declaring a strike illegal should not lie with the Government but with an independent body which has the confidence of the parties involved, the Committee urged the Government to amend section 263(g) of the Labor Code in order to put it into full conformity with the principles of freedom of association. In addition, considering that sanctions, such as mass dismissals, in respect of strike action, should remain proportionate to the offence or fault committed, the Committee requested the Government to initiate discussions in order to consider the possible reinstatement in their previous employment of all the members of the Association of Airline Pilots of the Philippines (ALPAP) who had been dismissed following the strike staged in June 1998. In this respect, while acknowledging the fact that ALPAP could be required to hold a strike vote before staging a strike, the Committee considered that the Secretary of Labor and Employment should not have assumed jurisdiction over the conflict and put an immediate end to the strike [see 329th Report, paras. 722-739].
2. 132. Since the communication of the conclusions and recommendations of the Committee, approved by the Governing Body at its 285th Session (November 2002), to the Government and the complainant, both parties have sent a number of communications. The last communication received from the complainant, dated 31 July 2003, has been transmitted on 19 August 2003 to the Government for its observations. The communications that are now before the Committee for its examination of the effect given to its recommendations can be summarized as follows.
3. 133. In a communication dated 6 January 2003, the Government indicates that it takes exception to the conclusions of the Committee. The Government reiterates and emphasizes that the strike declared by ALPAP did not meet the procedural requirements set forth in the Labor Code and was in defiance of the return-to-work order issued in accordance with article 263(g). The Government adds that the air transport plays an important role in the day-to-day economic activities of the Philippines and that the economic performance was plummeting when ALPAP went on strike. With respect to the amendment of article 263(g), the Government informs the Committee that steps towards the amendment of the law are being taken, in light of the national conditions of the Philippines. As for the recommendation of the Committee concerning the dismissed workers, the Government has duly noted it.
4. 134. In a communication dated 7 January 2003, the complainant alleges that the Department of Labor and Employment (DOLE) has decided to adopt a cavalier approach to the matter. Further, the complainant attaches to its communication a motion that it has filed with DOLE. In this document, ALPAP alleges that Philippine Airlines Inc. (PAL) has dismissed not only the workers who participated in the strike but also all the officers and members of ALPAP, including those who were on official leave or abroad at the time of the strike. Therefore, ALPAP requests DOLE to conduct “the requisite legal proceedings to determine with finality who among the officers and members of ALPAP should be reinstated or deemed to have lost their employment status for their actual participation in the strike conducted by ALPAP in June 1998”.
5. 135. In a letter of 7 August 2003, the Government provides its observations on ALPAP’s communication. The Government states at the outset that a distinction must be made between the recommendation of the Committee on the need to amend article 263(g) and the recommendation concerning the re-examination of the dismissals of ALPAP members. On the first issue, the Government indicated that DOLE has already submitted a proposal of amendment to the labour committees of the Senate and of the House of Representatives; the proposal would include the exercise of assumption of jurisdiction powers only in disputes involving “essential services”. On the other hand, the position of the Government must be replaced in the context of a dispute involving ALPAP that has been resolved with finality by the Supreme Court on 10 April 2002 (the decision of the Court was attached to the Government’s reply to the complaint).
6. 136. The Government emphasizes once more that the strike staged by ALPAP was tainted with procedural flaws and it underlines that both the Committee of Experts on the Application of Conventions and Recommendation and this Committee have admitted that the right to strike is not an absolute right and that certain prerequisites to its exercise are acceptable. In this respect, the Government underlines that requirements set out in article 263 are no different from the measures accepted by this Committee.
7. 137. As for article 263(g), the Government underlines that the Committee accepts compulsory arbitration in cases of strike, in particular, in relation to essential services. Referring to paragraph 541 of the Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, the Government emphasizes that the Committee admits that what is meant by essential services in the strict sense of the term “depends to a large extent on the particular circumstances prevailing in a country”. The Government notes that the Committee excludes the transport sector only in “general terms”. The Government therefore considers that, under reasonable circumstances, particular services in this sector may be considered as essential. In this connection, the Government states that the Philippines socio-economic lifeblood runs through an archipelago connected by travel and communications facilities and services; thus PAL provides a crucial lifeline accessed by thousands of travellers and merchants on a daily basis. Suspension of PAL flights therefore would have tremendous economic implications for the country.
8. 138. Concerning the Committee’s statement that the strike should be declared illegal by an independent body, the Government underlines that it already complies with this principle and that, in particular, the actions of the Secretary of Labor and Employment are subject to the review of the Courts. Both the Court of Appeals and the Supreme Court have confirmed the Secretary’s rulings in the present case.
9. 139. On the motion filed by ALPAP, the Government provides the following information. In a letter of 30 July 2003, the Secretary of DOLE informed ALPAP that the issue raised in the motion has been resolved with finality by the Supreme Court. Thus DOLE could not hold proceedings to determine: (1) the officers and members of ALPAP who should be reinstated or deemed to have lost their employment status with PAL, because of their actual participation in the strike conducted in June 1998; (2) issues relating to the entitlement to and the enjoyment of accrued employment benefits by the officers and members of ALPAP whether they had been terminated or not.
10. 140. The Committee notes that the Government develops mainly its views on the substance of the case in particular by elaborating on those which it already presented in its reply to the complaint. Bearing in mind that its examination of the case has reached the stage where the Committee has to consider the effect given by the Government to its recommendations, as they have been approved by the Governing Body, the Committee will simply take due note of these views and that they differ from the conclusions reached by the Committee.
11. 141. With respect to its particular recommendations, the Committee notes with interest that the Department of Labor and Employment (DOLE) has submitted to both the House of Representatives and the Senate a proposal to amend article 263(g) so as to limit the jurisdiction of the Secretary of Labor to dispute involving essential services. The Committee requests the Government to keep it informed in this regard and to provide a copy of the proposed amendment as soon as it has been adopted.
12. 142. Concerning the possible reinstatement of ALPAP’s workers who had been dismissed following the strike staged in June 1998, the Committee notes that there is no indication, from the communications at its disposal, that discussions have been initiated. Moreover, the Committee notes with concern that, on the one hand, the motion filed by ALPAP contains allegations that all its members and officers have been dismissed whether they had participated in the strike or not, and that, on the other hand, the Secretary of Labor and Employment has decided not to intervene in the matter as it considered that the Supreme Court has handed down a final ruling thereon. In these circumstances, the Committee expresses the firm hope that the Government will take concrete steps to initiate discussions in order to consider the possible reinstatement in their previous employment of all ALPAP’s workers who have been dismissed following the strike staged in June 1998, and to keep it informed in this regard. Further, the Committee requests the Government to provide specifically, and as a matter of urgency, its observations on the allegation of ALPAP in relation to the dismissals of all the union’s members and officers regardless of their participation in the strike or not. Finally, the Committee awaits the Government’s observations on ALPAP’s communication dated 31 July 2003.