Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Philippines (Ratification: 1953)

The Committee previously requested the Government to provide detailed information on the allegations raised by the International Trade Union Confederation (ITUC) in its 2018 observations, which concern alleged union busting practices, blacklisting and anti-union dismissals and suspensions in three companies. Regretting the absence of information in this regard, the Committee requests the Government to provide its observations on these allegations and, should this not yet be the case, to take the necessary measures to address them without delay.

Article 4 of the Convention. Categories of workers covered by collective bargaining. In its previous comments relating to the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Committee noted the Government’s indication that under section 253 of the Labour Code, only employees (workers covered by an employer-employee relationship) 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 had also previously noted such restrictions on other categories of workers, including workers in managerial positions or with access to confidential information (section 255 of the Labour Code), firefighters, prison guards and certain other public sector workers authorized to carry firearms (Rule II, section 2 of the Amended Rules and Regulations Governing the Exercise of the Right of Government Employees to Organize). The Government provides similar information in its latest report, pointing, in particular, to Department Order No. 40, 2003, as amended, which sets out the distinction between labour organizations established for collective bargaining (trade unions) and labour organizations organized for the mutual aid and protection of its members or for any legitimate purpose other than collective bargaining (workers’ associations, including in the informal economy). The Committee understands from the above that certain categories of workers may only form and join associations for purposes other than collective bargaining and are therefore not able to fully benefit from the guarantees of the Convention in terms of collective bargaining. The Committee wishes to recall in this regard that, with the exception of organizations representing categories of workers which may be excluded from the scope of the Convention (the armed forces, the police and public servants engaged in the administration of the State), recognition of the right to collective bargaining is general in scope and all other organizations of workers in the public and private sectors must benefit from it, including prison staff, fire service personnel, self-employed and temporary workers, outsourced or contract workers, non-resident workers, part-time workers, agricultural workers and domestic and migrant workers. In line with the above and with its previous comments under Convention No. 87 and recalling that a number of legislative reforms addressing the right to organize of the above-mentioned categories of workers have been pending in Congress for many years, the Committee firmly expects the Government to take the necessary measures to ensure that all workers covered by this Convention, with the only possible exception of the armed forces, the police, and public servants engaged in the administration of the State (Article 6), can effectively benefit from the rights enshrined in the Convention, including the right to collective bargaining. The Committee further invites the Government to initiate a dialogue with the social partners concerned to identify the appropriate adjustments to be made to the collective bargaining mechanisms in order to facilitate their application to the various categories of self-employed and non-standard workers mentioned above.

Content of collective bargaining in the public sector. In its previous comments, the Committee recalled that under section 13 of Executive Order No. 180, only terms and conditions not otherwise fixed by law may be negotiated between public sector employees’ organizations and the government authorities and requested the Government to take the necessary legislative or other measures to expand the subjects covered by collective bargaining, so as to ensure that public sector employees not engaged in the administration of the State fully enjoy the right to negotiate their terms and conditions of employment, including wages, benefits and allowances, and working time. The Committee previously observed that two bills aimed at establishing a Civil Service Code were pending in Congress and that, following ratification of the Labour Relations (Public Service) Convention, 1978 (No. 151), the Government would develop a labour relations framework in the public sector that is aligned with that Convention. The Committee notes the Government’s observations that the mentioned bills were not yet enacted into law and that three bills with the same subject-matter were filed in the 19th Congress – Senate Bill No. 587 and House Bills Nos 550 and 1513. The Committee understands from the above that no substantial progress appears to have been achieved in expanding the subjects covered by collective bargaining for public sector employees not engaged in the administration of the State and wishes to recall that Article 4 of the Convention calls for measures to be taken to promote machinery for voluntary negotiation on terms and conditions of employment for all workers, including those in the public service, with the exception only of those who are engaged in the administration of the State, and that the negotiable terms and conditions of work include wages, benefits and allowances, and working time. In line with the above and with its comments under Convention No. 151, the Committee requests the Government to take the necessary measures, including in the context of developing a labour relations framework aligned with Convention No. 151, to ensure that all workers covered by this Convention, including public sector employees not engaged in the administration of the State (teachers, health-care workers, etc.), will be able to negotiate their terms and conditions of employment, including with respect to wages, benefits and allowances, and working time. The Committee requests the Government to provide information on any developments in this respect.

Requirements for negotiation and adoption of collective bargaining agreements in the electricity sector. In its previous comments, the Committee noted the observations from the Center of United and Progressive Workers (SENTRO) denouncing the Philippine National Electrification Administration (NEA) policies for directing electric cooperatives to have their bargaining agreements ratified by entities other than those provided for in the law. The Committee notes the Government’s clarification in this regard that the issues that gave rise to the complaint by SENTRO evolved around the NEA Memorandum No. 2014-003, instituting Multi-Sectoral Electrification Advisory Council (MSEAC) representatives as part of a consultative panel for the review and negotiation of proposed collective bargaining and collective negotiation agreements in each electric cooperative. The Government informs that the Associated Labour Unions-Trade Union Congress of the Philippines (ALU-TUCP) challenged the Memorandum at the Court of Appeals, alleging that it was contrary to the law on collective bargaining. The Appeals Court, however, considered, in its October 2015 ruling, that the Memorandum was not contrary to the law as it aimed at strengthening harmonious relations between employers and member-consumers and at promoting their well-being through increased transparency and a consultative approach. The Court of Appeals also considered that the rules of the Memorandum do not stifle collective bargaining as they only deal with prior or subsequent activities – the matters subject to review and negotiation by the consultative panel only refer to proposed collective bargaining provisions and not those already agreed upon. In addition, this allows the participants to be aware of the broader picture in which negotiations take place. The Committee notes the Government’s indication that in July 2017, the Supreme Court denied with finality the petition for review on certiorari filed by the union and that these issues are thus deemed judicially resolved. The Government further informs that, like in other sectors and industries, the entry into force of collective agreements in the electricity sector does not require prior approval of labour administration authorities.

While taking due note of the above, the Committee observes from the text of Memorandum No. 2014-003 that, according to the NEA, some unions did not heed its advice to have more reasonable economic and non-economic demands in negotiations so as to avoid financial difficulties affecting the delivery of electric service, and that there was therefore a need to strengthen harmonious relationships, promote the well-being of employees and the welfare of member-consumers, and to that effect, transparency requiring consultation and involvement of other sectors and stakeholders was necessary. The Memorandum thus requires the participation of MSEAC representatives in a consultative panel for the review and negotiation of proposed provisions of collective bargaining agreements, which are later ratified by a plurality of votes of the General Membership Assembly, after the management has thoroughly analysed whether they offer a balanced welfare for both employees and member-consumers and overall financial standing of the electric corporation.

While it did not receive specific information on the exact composition of the MSEAC and the consultative panel, the Committee understands from the above that Memorandum No. 2014-003 seems to expand the practice of collective bargaining in electric corporations beyond the parties, that is, the relevant trade unions and the electric corporations, as employers, by providing for the express involvement of a multi-sectoral consultative panel for review and negotiation of proposed collective agreements, as well as for the approval of collective agreements by the corporation’s general assembly of members. Although it was not provided with information on the exact involvement of the panel in negotiations, the Committee wishes to underline that provisions requiring agreements to be negotiated with the involvement of third parties may raise problems of compatibility with the Convention, as such third-party involvement considerably alters the bipartite nature of the negotiating process and may not be conducive to promoting voluntary collective bargaining within the meaning of Article 4 of the Convention. The Committee recalls in this regard that, the Convention tends essentially to promote bipartite negotiation of terms and conditions of employment, namely between employers and employers’ organizations, on the one hand, and workers’ organizations, on the other, so that the parties enjoy full autonomy in determining the content of any agreements concluded. Furthermore, such agreements should not be subject to prior approval by entities other than the parties concerned. In line with the above, the Committee requests the Government to provide further information on the composition of the consultative panel and the manner of its involvement in negotiations of collective bargaining agreements in the electricity sector. It further calls on the Government to consider reviewing Memorandum No. 2014-003 and its implementation, together with the social partners, so as to ensure that employees of electric corporations may fully exercise their rights under the Convention. The Committee also requests the Government to report on the number of collective agreements concluded and in force in the electricity sector and the number of workers covered by these agreements, as well as on any other measures taken to encourage and promote voluntary and good-faith collective bargaining in the sector.

Collective bargaining in practice. The Committee notes the Government’s observations on the number of collective agreements registered for the past six years and notes that the Government points to a trend in registration of collective agreements that is consistent with the number of agreements that expire over the same period. The Government indicates, in particular, that, in 2020, the number of collective agreements registered that year declined from 263 to 175, covering more than 60,000 workers, which is associated with the restrictions imposed due to the COVID-19 pandemic. However, in 2021, the number of registered collective agreements increased again to 319, covering about 63,000 workers, and during the period from 1 January to May 2022, 162 collective agreements were registered covering around 39,000 workers. In this respect, the Committee also notes with concernthat according to ILOSTAT, only 1.4 per cent of employees in the country are covered by collective agreements. The Committee therefore requests the Government to take all the necessary legal and practical measures to promote the full development and utilization of collective bargaining under the Convention, including those mentioned in the present comment, and to provide information in this respect. The Committee furthers requests the Government to continue to report on the number of collective agreements concluded and in force, the sectors concerned and the number of workers covered by these agreements.