Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 278, Juin 1991

Cas no 1570 (Philippines) - Date de la plainte: 17-JANV.-91 - Clos

1. 145. The World Confederation of Organisations of the Teaching Profession (WCOTP) - on behalf of its affiliated organisation, the Alliance of Concerned Teachers (ACT)- presented a complaint of violations of trade union rights against the Government of the Philippines in a communication dated 17 January 1991.
2. 146. The Government sent its observations on the allegations in a communication dated 14 March 1991.
3. 147. The Philippines have 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. The complainant's allegations

1. 148. In its communication of 17 January 1991, the WCOTP alleges that the trade union rights of public school teachers in the Philippines are being restricted as evidenced by a Supreme Court decision, handed down on 18 December 1990.
2. 149. The background to the Court case is as follows. The 1987 Constitution provides that the State must give "the highest budgetary priority to education and ensure that teaching will attract and retain its rightful share of the best available talents through adequate remuneration and other means of job satisfaction and fulfilment". Based on this provision, the Filipino teachers refused the salaries proposed in autumn 1989 by the authorities and organised peaceful meetings in November 1989. A mediation agreement was signed between the Education Department and the teachers' organisations concerned, namely the Alliance of Concerned Teachers (ACT) and the Manila Public School Teachers' Association (MPSTA). Unfortunately, the special committee which was supposed to pursue this mediation never met. However, in June 1990 the Department of Finance announced that a sum of P680 million had been transferred to the Department of Education so that a supplementary allowance could be paid to teachers; but by July 1990 only a few public servants in the education system (directors, managers) had received this allowance. Leaders of the WCOTP's national affiliates tried in vain to meet with the Secretary of State for Education, and then, faced with this refusal of dialogue by the authorities, decided to organise a peaceful meeting of teachers.
3. 150. According to the complainant, on 17 September 1990, over 800 teachers attended that meeting. The Secretary of State for Education reacted by ordering them immediately to resume work, failing which they would be subjected to administrative proceedings including suspension or dismissal. Over the following days the media reported that 959 striking teachers were being dismissed or suspended. The complainant alleges that they were replaced by unqualified people, such as other public servants, and that this measure raised serious protests from parents, some of whom decided to keep their children home.
4. 151. The WCOTP states that 884 teachers were dismissed and over 2,000 suspended. The ACT and the MPSTA lodged a petition with the Supreme Court of the Philippines calling for a temporary restraining order lifting the suspension orders and allowing teachers to return to work pending the final judgement of the case, which would examine the merits of the protest actions themselves. The respondents (the Secretary of State for Education et al.) rejected any return to work until the merits of the case were decided.
5. 152. From the Supreme Court's decision which rejected the petition, it appears that members of the petitioning organisations took "mass actions" from 17 to 19 September 1990- including a march and day-long assemblies- in front of the Presidential Palace and Department of Education. The Court viewed this action as a strike and, relying on its own case law, held that employees in the public service, while guaranteed the right to self-organisation, to petition Congress for the betterment of employment terms and conditions, and even to negotiate with appropriate government agencies for the improvement of such conditions as are not fixed by law, do not have the right to strike. It considered that the teachers had thus illegally disregarded the return-to-work orders served on them by their lawful superior. Consequently the judges stated that if the Court were to allow the teachers involved to return to work at this stage of the proceedings, under the conditions existing before they went on strike as requested in their petition, this would undo all that the Secretary of Education had validly done, and would hamper the enforcement of dismissals already ordered, deter the filing of new charges, erode the authority of the respondents in discharging their duties and would "send a clear message that the Government and its duly constituted authorities are vulnerable to chantage and coercion". The Court thus denied the petition, although it did add that the petitioners may well have had legitimate grievances concerning pay adjustments.
6. 153. Four judges gave dissenting opinions in favour of a temporary reinstatement of rank-and-file teachers (as distinct from the officers of the ACT and MPSTA) pending the determination of the merits of the petition. Their decision was based on the legitimacy of some of the teachers' complaints, in particular the delay in paying teachers' salaries and allowances and the removal of long-standing benefits, as well as a doubt as to whether suspension and dismissal orders were issued after due process had been respected (it seems that the protestors were not allowed to present defences to the disciplinary proceedings or benefit from hearings) and on compassionate grounds since the teachers had been out of work for three months.
7. 154. The WCOTP alleges that the majority of the Court, by refusing to go on to decide the merits of the dispute between the teachers and the education authorities, left the disciplined teachers without an avenue to pursue their claims. It alleges that the Court's decision violates the letter and spirit of Convention No. 87 and serves to intimidate teachers' organisations in the Philippines.

B. The Government's reply

1. 155. By a communication of 14 March 1991 the Government denies the WCOTP's allegations. It states that Convention No. 87 establishes the rights to establish and join organisations, to draw up such organisations' constitutions and rules, not to be dissolved or suspended by administrative authority and to join federations and confederations and to affiliate at the international level; the Supreme Court decision merely dealt with the legality or illegality of a strike staged by government workers. Although it decided in favour of the illegality of the strike called by the petitioners, the Court reiterated the right of public sector unionism.
2. 156. At the same time the Government considers that the Supreme Court decision cannot be seen to violate the spirit of the Conventions on freedom of association because it is an accepted principle that workers, employers and their respective organisations shall respect the law of the land provided that the law of the land does not impair the guarantees set out in Convention No. 87. On this point the Government points out that the national Constitution and Executive Order No. 180 do grant the right to organise to employees in the public service. It acknowledges that these statutes do not grant the right to strike, but claims that the absence of such a right cannot be seen to impair the right to organise because the reasons for its absence are dictated by the demands of national interest and requirements of public service which are primordial considerations of a developing country whose democratic system is being threatened from both the left and the right.
3. 157. The Government states that the terms and conditions of government employment are fixed by the legislature through statutes or administrative rules and regulations and not through collective bargaining agreements; government employees cannot use the same weapons as private sector workers to secure concessions from employers. But as an alternative to collective bargaining, and to a certain extent, the right to strike, the Constitution and Executive Order No. 180 provide for machinery to settle grievances and disputes relating to terms and conditions of employment. For example, a Public Sector Labor Management Council has been set up to handle the problems of government workers. The Government adds that, in any case, ILO jurisprudence has recognised that the right to strike can be limited or even prohibited in the civil service or in essential services. It states that as the Philippines is in a critical period of growth and development, the interest of the country and its people can best be served through the guarantee of unhampered delivery of government services.
4. 158. According to the Government, and contrary to the WCOTP's reading of the judgement, the Supreme Court did decide the merits of the dispute between the teachers' unions and the education authorities. It suggests that the complainant misinterpreted the judgement in the paragraphs where the Court exhausted all arguments for and against deliberating on a collateral issue- namely, whether or not to allow the teachers to return to work under the conditions existing before their mass protest- when the basic issue of the case was whether or not a restraining order should be issued against the decision of the Secretary of Education suspending and dismissing a number of public school teachers.
5. 159. In addition, the Government states that it was not necessary (or indeed possible under the Philippine constitutional structure) for the Supreme Court to have suggested how the teachers might pursue their interests since the rules implementing Executive Order No. 180 provide for collective negotiations and grievance settlement machinery: section 2 lists various matters that "may be the subject of negotiations between the employer and the accredited employees' organization", and section 1 refers to the settlement of grievances presented through different channels by the Civil Service Commission or the above-mentioned labour-management council. The Government supplies a copy of Resolution No. 90-1185 recently adopted by the Civil Service Commission regarding collective negotiations, as well as a list of the 200 unions registered in the public sector.
6. 160. The Government also supplies a copy of the "comment" supplied in argument of the petition by the Solicitor General, in which he argues, inter alia, that the striking teachers were not denied procedural due process. He states that all striking teachers were individually notified in writing of the charges against them (including grave misconduct, gross neglect of duty, refusal to perform official duty, gross insubordination and absence without leave) and were given five days from receipt to file their answers. They also received the notices of preventive suspension. He points out that if the decisions in the administrative cases are not to the teachers' liking, they can appeal to the Civil Service Commission and subsequently to the appellate courts.
7. 161. Lastly, the Government acknowledges that there are shortcomings and difficulties, but denies that these are orchestrated or carried out by the Government in an attempt to violate the spirit and intent of the ILO Conventions. On the contrary, the Government states that perhaps it is the importance it has attached to the rights of workers that has led some sectors to see themselves as above the law. It adds that surely it is within the power of the State to pursue and penalise those who transgress its laws.

C. The Committee's conclusions

1. 162. The Committee observes that the allegations in this case centre on the sanctioning of almost 3,000 teachers for carrying out a two-day strike in public schools over issues directly related to their employment conditions. The parties do not dispute the facts: from 17 to 19 September 1990 the teachers undertook protest marches and mass assemblies calling on the education authorities to pay certain unpaid allowances and respect certain long-established benefits; in reply the education authorities- in accordance with the powers given to them by statute- notified each striking teacher of the charges against him or her and proceeded to suspend 2,000 of them and dismiss another 884. The Committee notes that the Government justifies these measures by reference to the ban on strikes and protest action by public employees which is contained in national statutes and Supreme Court case law.
2. 163. What led to the filing of the present case was the Supreme Court's decision, handed down on 18 December 1990, upholding the action taken by the education authorities. In effect, the Court decided not to grant a request to lift temporarily the Secretary of Education's suspension orders, thus allowing the teachers to return to work, pending the Court's final decision on the merits of the strike. It is not clear from the documentation before the Committee what the petition intended to do for those teachers already dismissed. Likewise, although certain doubts are expressed in the judgement as to whether procedural due process was respected in the carrying out of the disciplinary proceedings, this issue does not appear to be the concern of the complainant. In the Committee's view, what lies at the heart of the allegations is whether the authorities were right, under the ILO's principles on freedom of association, to sanction public sector teachers for striking.
3. 164. When looked at in these terms the Committee's only response can be that they were not.
4. 165. The Committee has been faced with many cases over recent years involving restrictions on the freedom of action of teachers, be they teachers employed in the private sector, as non-titular public employees or having the status of civil servants. The unwavering approach to the question of whether they, as teachers, should be allowed to exercise the right to strike has been repeated in the following terms (272nd Report, Case No. 1503 (Peru), paras. 116 and 117; 277th Report, Case No. 1528 (Germany), para. 285):
   • ... The Committee reiterates that it has always held the right to strike to be one of the fundamental rights of workers and their organisations; it is one of the essential means through which they may promote and defend their occupational interests ... The Committee recalls that the right to strike can only be restricted and even prohibited in the public service (public employees being those who act as agents of the public authority) or in essential services in the strict sense of the term (i.e. those services whose interruption would endanger the life, personal safety or health of the whole or part of the population). However, the Committee considers that workers in education are not covered by the definition of essential services or of the public service exercising the powers of the public authority.
5. 166. The Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, at paragraphs 402 and 404 refers to other cases where the right to strike of teachers has been upheld by this Committee. The Committee of Experts on the Application of Conventions and Recommendations has also considered that teaching is not an essential service (see its 1983 General Survey on Freedom of Association and Collective Bargaining, para. 214). This approach is consistent with other instruments adopted at the international level affecting this category of workers, in particular clause 84 of the ILO/UNESCO Recommendation concerning the status of teachers of 1966.
6. 167. The Committee would stress that it is not swayed by the particular status or designation that any national system might bestow on teachers; the decisive factor, as far as this Committee is concerned, is whether the functions of the employees covered by the strike ban show that they are engaged in an essential service or in a public service exercising the powers of the public authority. According to the Committee of Experts (General Survey, 1983, para. 214), to permit a too broad definition of the public service would mean that the principle of the right to strike would become meaningless.
7. 168. Therefore, in the present case, all the Government's arguments (namely, that government workers do not enjoy the right to strike because their terms and conditions of employment are set by law; or that they can petition Congress for betterment of such conditions and use other grievance settlement machinery; or that the current law of the land, Executive Order No. 180, does not impair the right to organise because requirements of public service are primordial considerations in a developing country), some of which are developed in the majority decision of the Supreme Court, have not persuaded the Committee to change its position on the right to strike of teachers. It accordingly requests the Government to take the necessary measures to allow teachers- irrespective of their particular status as public servants under national laws- to exercise the right to strike which the Committee notes is available to private sector teachers.
8. 169. As for the disciplinary sanctions, the Committee notes from its reading of the Supreme Court decision and the Solicitor General's "comment" provided by the Government that administrative proceedings are continuing for some of the sanctioned teachers, and that appeals might still be lodged against both the suspensions and dismissals. The Committee recalls that the imposition of sanctions on public servants on account of their participation in a strike is not conducive to the development of harmonious industrial relations (Digest, para. 437 and 277th Report, Case No. 1528 (Germany), para. 290).
9. 170. It appears that many of the 2,000 suspended teachers continue to be out of work, and this prolonged punishment- in addition to the actual dismissals- can only add to the concerns expressed in the previous paragraph.
10. 171. The Committee accordingly urges the Government to take steps to have these measures reviewed by the education authorities and to secure the reinstatement, without loss of pay, of the teachers concerned. It also calls upon the Government: (i) to keep it informed of any appeal proceedings brought by sanctioned teachers; (ii) to provide clarification as to the period of suspension imposed by the Secretary of Education's orders; and (iii) to supply statistics as to how many teachers have returned to their posts following the expiry of the suspensions.
11. 172. The Committee refers this case to the Committee of Experts on the Application of Conventions and Recommendations for consideration in the context of the Philippines' application of Convention No. 87.

The Committee's recommendations

1. 173. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a)The Committee considers that the teachers who took part in the two-day strike from 17 to 19 September 1990 do not fall within the group of workers which- according to ILO principles- might be excluded from the generally accepted principle recognising the right to strike of workers and their organisations and accordingly asks the Government to take the necessary measures to allow teachers, whatever their particular status under national laws, to exercise the right to strike.
   • (b)Considering that the imposition of sanctions on public servants for strike action is not conducive to the development of harmonious industrial relations, the Committee urges the Government to take steps to have the suspension and dismissal orders reviewed by the education authorities and to secure the reinstatement, without loss of pay, of the teachers concerned.
   • (c)The Committee also requests the Government to keep it informed of any appeals brought by sanctioned teachers and to supply any statistics on the number of teachers who may have returned to their posts following the expiry of the suspensions.
   • (d)Lastly, the Committee refers its conclusions on the non-compatibility of the strike ban and pursuant sanctions applying to teachers with the principles of Convention No. 87 to the Committee of Experts on the Application of Conventions and Recommendations.