Rapport intérimaire - Rapport No. 359, Mars 2011

Cas no 2528 (Philippines) - Date de la plainte: 31-OCT. -06 - En suivi

Allegations: The complainant alleges killings, grave threats, continuous harassment and intimidation and other forms of violence inflicted on leaders, members, organizers, union supporters/labour advocates of trade unions and informal workers’ organizations who actively pursue their legitimate demands at the local and national levels

1. 1093. The Committee last examined this case at its March 2010 meeting, when it presented an interim report to the Governing Body [356th Report, paras 1117–1193, approved by the Governing Body at its 307th Session (March 2010)].
2. 1094. The Union of Filipro Employees (UFE–DFA–KMU) sent new allegations in communications dated 16 August and 3 September 2010.
3. 1095. The Government forwarded additional observations in a communication dated 15 November 2010.
4. 1096. 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. Previous examination of the case

1. 1097. At its March 2010 session, in the light of the Committee’s interim conclusions, the Governing Body approved the following recommendations:
   • (a) The Committee deplores the gravity of the allegations made in this case and the fact that, almost two decades after the filing of the last complaint on similar allegations, inadequate progress has been made by the Government with regard to putting an end to killings, abductions, disappearances and other serious human rights violations which can only reinforce a climate of violence and insecurity and have an extremely damaging effect on the exercise of trade union rights.
   • (b) As regards the alleged extrajudicial killings, abductions and enforced disappearances, the Committee:
   • (i) requests the Government to respond without delay to the new allegations of murder, attempted murder, abduction and attempted abduction brought forward by the complainant;
   • (ii) trusts that the Government will continue to take the measures necessary for the full protection of witnesses;
   • (iii) urges the Government to take all necessary measures so as to ensure that the investigation and judicial examination of all pending allegations of extrajudicial killings, attempted murder, abduction and attempted abduction advance successfully and without delay, and to provide any relevant court judgments;
   • (iv) requests the Government, in particular, to supply details without delay on the comprehensive case inventory referred to by the Government, and provide further information on the steps taken to fully investigate the pending allegations of extrajudicial killings, attempted murders, abductions and attempted abduction, so that all responsible parties may be identified and punished before the competent courts as soon as possible and to combat a climate of impunity;
   • (v) requests the Government to take measures to ensure that, even in the absence of a formal filing of charges, all cases are thoroughly investigated;
   • (vi) requests the Government to indicate the measures envisaged to implement the doctrine of command responsibility in respect of all acts of violence;
   • (vii) asks the Government to supply details of any new developments in the framework of EPJUST;
     • (viii) requests the Government to keep it informed of the progress made in the adoption of the Bill concerning enforced disappearances.
   • (c) Noting with interest the constitution of the NTIPC as the high-level tripartite monitoring body, the Committee requests the Government:
   • (i) to keep it informed on the working of the TEC and the NTIPC;
   • (ii) to supply information on the allegations reviewed, the joint determinations made as to linkages with trade unionism, the measures adopted to expedite and monitor follow-up action, and the results achieved;
   • (iii) to provide additional information on the manner in which the results of the tripartite deliberations of the NTIPC are fed into the investigation and prosecution processes of the other task forces and relevant bodies, including the CHRP.
   • (d) With respect to the Hacienda Luisita incident, the Committee, noting that nine police officers had previously been identified as suspects and recommended to be charged for multiple homicide, requests the Government to provide specific information as to the institution of judicial proceedings for this incident which dates back to 2004.
   • (e) The Committee requests the Government to indicate the progress made in respect of the Bill relating to the powers of the CHRP, and to supply the final text of the Act as soon as it is adopted. Moreover, the Committee requests to be kept informed on any further developments regarding the adoption and implementation of the proposed rule to strengthen protection and security of aggrieved parties availing of the writ of amparo or their witnesses, being elaborated by the Supreme Court and the CHRP.
   • (f) As to the issue of lengthy procedures, the Committee requests the Government to take the necessary measures to ensure the expeditious conclusion of proceedings in allegations of labour-related violence. The Committee requests the Government to supply information on the working of the 99 regional trial courts designated by the Supreme Court, and to provide detailed information on the steps taken to create a special team of competent and well-trained prosecutors. The Committee asks to be kept informed on any further developments regarding the adoption and implementation of the “Omnibus Rules” being elaborated by the CHRP.
   • (g) As regards the alleged harassment and intimidation of trade union leaders and members affiliated to the KMU, the Committee:
   • (i) requests the Government to communicate its observations on the new allegations;
   • (ii) requests to be kept informed of the progress made in ensuring the full and swift investigation of the alleged acts of harassment and intimidation;
   • (iii) noting with interest section 17 of the Bill concerning enforced or involuntary disappearances, requests to be kept informed on any developments in relation to its adoption and on any additional measures taken to suppress “order of battle” which lead to the commission of acts of violence against trade unionists on the basis of their purported ideology.
   • (h) With respect to the militarization of workplaces, the Committee:
   • (i) urges the Government to communicate its observations on the new allegations;
   • (ii) welcomes the Government’s commitment within the framework of the technical cooperation proposal on training and capacity building, to elaborate a combined human rights, trade union rights and civil liberties programme for the forces of order (in particular PNP and the AFP), and expects that such activities can be conducted in the near future and in coordination with the CHRP. The Committee requests to be kept informed of the progress made in this regard;
   • (iii) urges the Government to keep it informed of the follow-through given to implementing the Guidelines for the Conduct of the PNP, Private Security Guards and Company Guard Forces during Strikes, Lockouts and Labour Disputes, and of any progress made in updating them;
   • (iv) further expects that the Government will take the necessary accompanying measures, including the issuance of appropriate high-level instructions, to bring to an end prolonged military presence inside workplaces, to ensure that any emergency measures aimed at national security do not prevent the exercise of legitimate trade union rights and activities, including strikes, by all trade unions, irrespective of their philosophical or political orientation, in a climate of complete security, and to ensure the strict observance of due process guarantees in the context of any surveillance and interrogation operations by the army and police in a way that guarantees that the legitimate rights of workers’ organizations can be exercised in a climate that is free from violence, pressure or threats of any kind against their leaders and members. The Committee requests to be kept informed in this regard.
   • (i) The Committee requests the Government:
   • (i) to communicate its observations in respect of the new allegations of illegal arrest and detention;
   • (ii) to submit further, and as precise, information as possible in relation to these arrests and the legal or judicial proceedings upon which they are based;
   • (iii) to take all necessary measures so as to ensure that the investigation and judicial examination of all cases of alleged illegal arrests and detentions proceed in full independence and without further delay, so as to shed full light on the current situation of those concerned and the circumstances surrounding their arrest;
   • (iv) to communicate the texts of any judgments handed down in the above cases, together with the grounds adduced therefore.
   • (j) As regards the prolonged detention of 20 workers from Karnation Industries, the Committee urges the Government:
   • (i) to ensure that any of the workers of Karnation Industries that are still imprisoned, are immediately released;
   • (ii) to take the necessary measures to ensure that all remaining charges are dropped, should the investigation of the pending allegations lead to the determination that the persons concerned were detained in relation to their legitimate trade union activities.
   • (k) The Committee expects that the steps taken and envisaged by the Government, including within the framework of the three- to four-year technical cooperation programme, will make an important contribution to progressively ensuring a climate of justice and security for trade unionists in the Philippines, and requests to be kept informed of developments in this regard.
   • (l) The Committee draws the Governing Body’s attention to the extreme seriousness and urgent nature of this case.

B. The complainant’s new allegations

1. 1098. By its communications dated 16 August and 3 September 2010, the UFE–DFA–KMU alleges continuing violation of trade union rights at the Nestlé-Philippines Cabuyao factory. According to the union, the Government, together with the enterprise’s management created the Nestlé Cabuyao Workers Union (NCWU) to eliminate the
   • UFE–DFA–KMU as the sole and exclusive bargaining agent for the Cabuyao workers, to undermine the final and executory decision of the Supreme Court and to annihilate the retirement benefits as part of the negotiable issue in the collective agreement. It further indicates that in January 2010, the Court of Appeals of the Philippines affirmed the earlier decision of the National Labor Relations Commission (NLRC), that the termination by the enterprise of more than 600 workers was legal and justified due to workers’ defiance of the DOLE Secretary’s Assumption of Jurisdiction Order. In April 2010, the Supreme Court dismissed the union’s petition for review regarding the illegal dismissal case due to the lack of merit.
2. 1099. The union further alleges that on 2 June 2010, at around 5.20 p.m., unidentified men gunned down a trade union leader in a crowded street in Barangay Caingin, Santa Rosa City, Laguna. Edward Panganiban, aged 27, died on the spot after sustaining 12 gunshot wounds. Mr Panganiban worked in Japanese-owned Takata Philippines Incorporated in Laguna Technopark Incorporated (LTI) and was elected secretary of the Independent Union Samahang Laks ng Manggagawa as Takata Philippines (SALAMAT–Independent).
3. 1100. The UFE–DFA–KMU further question the composition of the Executive Committee of the Tripartite Industrial Peace Council (TIPC) and states that labour sector representatives on the TIPC are not real leaders of the working class.

C. The Government’s reply

1. 1101. In its communication dated 15 November 2010, the Government indicates that the TIPC Monitoring Body was established pursuant to Resolution No. 1 of 20 January 2010 as the monitoring body on the application of the international standards, in particular the ILO Conventions on freedom of association and protection of the right to organize. The Government stresses its commitment to the promotion of inclusive tripartism and social dialogue through the reconstitution of the TIPCs at the national and regional levels and indicates that the complainant in this case, the KMU, has already conveyed interest to participate in the national TIPC and in the TIPC Monitoring Body.
2. 1102. The Government further indicates that through its Resolution No. 2, adopted on 25 June 2010, the TIPC Monitoring Body recommended the following actions for the 39 cases of extrajudicial killings: (a) eight cases for closure; (b) six on-trial cases were requested to be prioritized by the courts and the Department of Justice (DOJ) for prosecution and resolution; (c) 11 cases for expeditious investigation by the DOJ; and (d) 14 cases for the Commission on Human Rights (CHR) to conduct an in-depth investigation on the circumstances or a “final pass” on those that had already been investigated by either the CHR, the Philippines National Police (PNP) Task Force, or DOJ Task Force 211, with a view to accord justice to the victims and their families at the soonest possible time. A copy of this resolution was provided by the Government.
3. 1103. The Government indicates that this resolution has been forwarded to the relevant agencies for the appropriate action and the DOLE Secretary had sought audience with the heads of the agencies for the commitment to expedite the investigation, prosecution and resolution of the cases. The DOJ has responded that it will form a panel of prosecutors to look into the cases. Furthermore, on the TIPC’s request to the Supreme Court for prioritization of the six cases pending before various lower courts, the meeting between the DOLE Secretary and representatives of the Supreme Court is being arranged. With regard to the 14 cases endorsed to the CHR, ten were recommended for closure. Most of these cases were either archived due to the non-availability of witnesses/lack of evidence or were closed without prejudice to reopening once there are developments on the case. The Government indicates that the recommendations of the TIPC Monitoring Body, together with the alleged harassment and abduction cases raised in Case No. 2528, will be discussed at its November 2010 meeting.
4. 1104. The Government further indicates that: (a) letters of intervention were sent in relation to the case of workers of Karnation Industries and Export Incorporated and the case of Felicidad Caparal; (b) follow-up letters were sent to the management of the relevant companies; and (c) “backdoor” negotiation to facilitate the settlement of the labour dispute involving AMADO–KADENA–NAFLU–KMU is currently being undertaken by the DOLE Secretary.
5. 1105. The Government further reiterates its commitment to capacity-building and awareness-raising activities and the initiated legislative reforms to further strengthen trade unionism and remove obstacles to the effective exercise of labour rights.

D. The Committee’s conclusions

1. 1106. The Committee recalls that the present case concerns allegations of killings, grave threats, continuous harassment and intimidation and other forms of violence inflicted on leaders, members, organizers, union supporters/labour advocates of trade unions and informal workers’ organizations who actively pursue their legitimate demands at the local and national levels. The Committee recalls that in its previous examination of this case, it had noted the efforts and steps taken or envisaged by the Government in recognition of the gravity of the allegations. The Committee notes with interest the efforts pursued and the further steps indicated by the Government to address the issues raised in this case as well as the detailed information provided by the Government to the Committee of Experts on the Application of Conventions and Recommendations (CEACR).
2. 1107. The Committee notes, in particular, from the information supplied to the CEACR, the information on the measures taken by the Government to strengthen the operational capacity of the PNP and armed forces of the Philippines (AFP) aimed at fostering an enabling environment for the enjoyment of constitutionally guaranteed civil liberties and trade union rights through (1) inclusion into the PNP operational procedures (POP) manual and the manual on rules on labour disputes, rallies and demonstration of human rights protection to be provided to victims and criminals; (2) supplementing the POP manual with a guidebook on human rights-based policing to provide police personnel with a basic reference on rights-based policing and to offer practical suggestions on how to mainstream international standards on human rights for law enforcement in police stations; (3) reinforcement of human rights desks in the police stations; and (4) the campaign to dismantle all private armies. It further notes the Government’s indication that the revised joint guidelines on the conduct of the PNP personnel and private security guards during strikes and lockouts are to be signed before the end of 2010 after the final consultation.
3. 1108. The Committee also notes information on the activities conducted under the
   • EU–Philippines Justice Support Program (EPJUST) (police and other investigative bodies, prosecutors and judiciary) aimed, among others, at: (1) enhancing the capacity and effectiveness of the Philippine justice system in the effective and timely investigations, prosecution and bringing to justice perpetrators, ensuring a fair, speedy and impartial trial of those charged with the crimes; (2) enhancing the capacity and effectiveness of the Commission of Human Rights; and (3) strengthening the ability of the uniformed services to train their personnel in relevant international human rights standards.
4. 1109. Moreover, the Committee notes that two regional seminars were conducted in April 2010 on civil rights, freedom of association, collective bargaining, and labour law implementation and enforcement in the Philippine economic zones; and that a capacitybuilding seminar for labour justice administrators, supreme court justices and their legal staff were conducted at the end of 2010.
5. 1110. The Committee notes, in particular, that the TIPC Monitoring Body was established in January 2010 as a monitoring body on the application of the international standards, in particular Convention No. 87. While the Committee notes the concern raised by the
   • UFE–DFA–KMU as to the workers’ representation at this body, it notes, from the information provided by the Government and Resolution No. 2, concerning this case, adopted by the TIPC Monitoring Body on 25 June 2010, efforts made by the Government to involve the KMU, the complainant organization in this case. The Committee expects that the Government will continue to engage with the KMU in dealing with cases involving its members and leaders and requests to be kept informed in this respect.
6. 1111. Welcoming the measures taken so far by the Government, the Committee requests it to continue to keep it informed of the steps taken and envisaged to ensure a climate of justice and security for trade unionists in the Philippines, and encourages the Government to develop a fully-fledged technical cooperation programme in this respect.
   • Extrajudicial killings
7. 1112. The Committee notes that the abovementioned resolution contains detailed information on the status of the 39 cases of alleged killings. The Committee notes that out of 39 cases, eight cases have been recommended for closure by the PNP Task Force and/or DOJ Task Force 211. The Committee further notes that out of the latter eight cases, in three cases, the main suspects were dead; in one case, the suspect was tried and acquitted, and in the remaining four cases, the injured parties have “voluntarily executed an affidavit against the filing of any civil, criminal or administrative cases against the suspects”. With regard to these four cases, the Committee considers that the killing, disappearance or serious injury of trade union leaders and trade unionists require the institution of independent judicial inquiries in order to shed full light, at the earliest date, on the facts and the circumstances in which such actions occurred and in this way, to the extent possible, determine where responsibilities lie, punish the guilty parties and prevent the repetition of similar events [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 48]. In the Committee’s opinion such crimes, due to their seriousness should be investigated and prosecuted ex officio, i.e. even in the absence of a formal criminal complaint being lodged by a victim or an injured party. The Committee stresses that the absence of judgments against the guilty parties creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights [see Digest, op. cit., para. 52]. It urges the Government to take all necessary measures so as to ensure that the investigation and judicial examination of all acts of extrajudicial killings advance successfully and without delay.
8. 1113. The Committee further notes from Resolution No. 2 that out of the 39 cases referred to above, the TIPC requested to prioritize prosecution and/or resolution of six cases already pending before the prosecutors’ office and/or courts; to expedite the investigation in 11 cases and/or immediately effect the arrest of suspects (if applicable); and refer 14 cases to the CHR. With regard to the latter, the Committee notes the Government’s indication that ten cases were recommended by the CHR for closure and that most of these cases were either archived due to non-availability of witnesses/lack of evidence or were closed without prejudice to reopening once there are developments.
9. 1114. While noting the information above, the Committee deplores that the Government once again omitted to provide the relevant data concerning the investigation, prosecution and judicial proceedings in the Hacienda Luisita incident, which claimed the lives of at least seven trade union leaders and members (Jhaivie Basilio, Adriano Caballero, Jun David, Jesus Laza, Jaime Pastidio, Juancho Sanchez and Jessie Valdez) and led to the injury of 70 others. Recalling that nine police officers had previously been identified as suspects in connection with the Hacienda Luisita incident and recommended to be charged for multiple homicide, the Committee urges the Government to provide specific information without further delay as to the institution of judicial proceedings for this incident which dates back to 2004.
10. 1115. The Committee further deeply regrets that no information has been supplied by the Government on the allegations of murder, and attempted murders, brought forward by the KMU in communications dated 30 September and 10 December 2009. The Committee urges the Government to institute an independent investigation into these allegations without delay. The Committee understands from the information provided by the Government that these cases were scheduled to be discussed by the TIPC at its November 2010. The Committee therefore urges the Government to indicate the progress made by the TIPC in reviewing the following cases:
11. 1. Carlito B. Dacudao, organizer of the National Federation of Sugar Workers (NFSW)–KMU in Negros, killed on 21 August 2009 in Negros Occidental.
12. 2. Sabina Ariola, Chairperson of the semi-workers and urban poor group Mamamayan ng Sta Rosa para sa Kagalingan, Kaunlaran, Kapayapaan, Tungo sa Magandang Kinabukasan ng Bayan (MSRK3 or People of Sta Rosa for Welfare, Development and Peace for a Better Society), killed on 23 March 2009 on top of a pickup truck on the way to the municipal hall of Sta Rosa, Laguna, to conduct a protest.
13. 3. Armando Dolorosa, Vice-Chairperson of NFSW–KMU Hda Myrianne Chapter, municipality of Manapla, Negros Occidental, killed on 6 June 2008.
14. 4. Gerardo “Gerry” Cristobal, former Union President and organizer of the Samahan ng Manggagawa sa EDS Mfg., Inc.–Independent (SM–EMI–Ind), killed on 10 March 2008 in Imus, Cavite.
15. 5. Attorney Gil Gojol, legal counsel of the Association of the Democratic Labor Organizations – KMU (ADLO–KMU) in Bicol, killed on 12 December 2006.
16. 6. Jesus Buth Servida, Union President of the SM–EMI–Ind, killed on 11 December 2006 in front of the factory’s main gate.
17. 7. Jerson Lastimoso, union member of the Nagkahiusang Mamumuo sa Suyapa
    • Farm (NAMASUFA), an affiliate of the National Federation of Labor Unions (NAFLU)–KMU, killed on 10 December 2006 in Compostela Valley, Southern Mindanao region.
18. 8. Attempted murder of Joel Ascutia, President of the Jeepney Drivers’ Group Condor Piston–Bikol and National Deputy Secretary of PISTON, on 13 July 2009 during a nationwide transport strike.
19. 9. Attempted murder of Liza Alo, President of the Packing Plant 92 Workers’ Union, on 16 May 2009.
20. 10. Attempted murder of Vicente Barrios, President of NAMASUFA–NAFLU–KMU, on 10 December 2006, where his companion, Jerson Lastimoso, died.
21. 1116. The Committee expresses serious concern at the complainant’s indication of a new murder on 2 June 2010 of Edward Panganiban, trade union leader in Barangay Caingin, Santa Rosa City, Laguna. The Committee urges the Government to institute an independent investigation and to respond without delay to this new allegation of murder. It expects that this case will also be reviewed by the TIPC and urges the Government to indicate without delay the progress made in this regard.
    • Abductions and enforced disappearances
22. 1117. The Committee notes the Government’s indication that the issue of abductions and enforced disappearances was scheduled for the discussion by the TIPC Monitoring Body at its November 2010 meeting. The Committee therefore expects that the Government will communicate detailed information as to the progress made in investigating and prosecuting all alleged cases of abductions and enforced disappearances and provide any relevant court judgments.
23. 1118. The Committee recalls that it had previously noted that a Bill “defining and penalizing the crime of enforced or involuntary disappearance and for other purposes” was before the Congress. The Committee considered that the adoption of this Bill could represent an important step in acknowledging the existence of enforced disappearances and ensuring significant and dissuasive sanctions. Regretting the absence of any new information in this regard, the Committee requests the Government to keep it informed of the progress made in its adoption, or of any other relevant legislative measures.
    • Witness protection
24. 1119. The Committee recalls that it had previously noted that the Supreme Court considered that the witness protection programme (WPP) was shown to be insufficient in some aspects and that together with the CHR, it was reviewing the WPP on the Writ of Amparo adopted in 2007. The Committee notes with interest the adoption, on 11 December 2009, of Act No. 9851 on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity, providing, in section 13, for measures which could be taken by the court or prosecutor for the protection of victims and witnesses. It further notes with interest Act No. 9745 (Anti-Torture Act), approved on 10 November 2009, which penalizes torture and other cruel, inhuman and degrading treatment or punishment and reinforces the earlier issuances of the Supreme Court on the Writ of Habeas Data and Writ of Amparo.
    • Lengthy procedures
25. 1120. The Committee notes the Government’s indication that Resolution No. 2 had been forwarded to the relevant agencies for their action and that the DOLE Secretary had sought audience with the heads of the agencies for the commitment to expedite the investigation, prosecution and resolution of the cases. The Committee further notes the Government’s indication that the DOJ has responded that it would form a panel of prosecutors to look into the cases. Furthermore, on the TIPC’s request to the Supreme Court for prioritization of the six cases pending before various lower courts, the meeting between the DOLE Secretary and representatives of the Supreme Court is being arranged. The Committee requests the Government to keep it informed of the developments in this respect.
26. 1121. The Committee recalls that it had previously observed that the recommendations of the Melo Commission had, inter alia, emphasized the need for the creation of a special team of competent and well-trained prosecutors to handle the trials, and of special courts to hear and try these cases. The Committee had also observed that, as a result, the then President of the Philippines had given instructions that special courts for the trial of charges involving unexplained killings of an ideological/political nature be created. The Supreme Court responded to the request by designating 99 regional trial courts as special tribunals to expeditiously resolve or decide the cases of extrajudicial killings. Trials would be terminated within 60 days and a judgment rendered within 30 days; priority would be given to cases of activists and media personnel and any dilatory pleadings or motions would be prohibited. The Committee once again requests the Government to supply information on the working of the 99 regional trial courts designated by the Supreme Court, including on the length of procedures in practice, and to provide detailed information on steps taken to create a special team of competent and well-trained prosecutors.
27. 1122. Furthermore, the Committee once again requests the Government to provide information regarding the adoption and implementation of the “Omnibus Rules” elaborated by the CHR, which would require cases to be treated within a maximum of one year.
    • Chain of command
28. 1123. The Committee recalls that it had previously requested the Government to take all measures with a view to ensuring full implementation of the recommendations of the Melo Commission on the adoption of legislation to require police and military forces and other government officials to maintain strict chain-of-command responsibility with respect to extrajudicial killings and other offences committed by personnel under their command, control or authority. The Committee notes that abovementioned Acts Nos 9851 and 9745 contain provisions providing for criminal responsibility of superiors and penalizing commanding officers involved in the prohibited acts and requests the Government to provide information on their implementation in practice.
    • Harassment and intimidation:
    • Militarization of workplaces
29. 1124. The Committee recalls that it had previously requested the Government to communicate its observations on the following allegations of harassment and intimidation of trade union leaders and members affiliated to the KMU: (i) listing in the military’s order of battle (Romualdo Basilio – KMU–SMR Chairperson; Omar Bantayan – KMU–SMR SecretaryGeneral; and Joel Maglungsod – ANAKPAWIS Partylist Representative, former KMU–SMR Secretary-General and also former KMU Secretary-General); (ii) vilification of Rene “Boyet” Galang, President of ULWU and UMA, as member of the NPA; (iii) harassment and intimidation of Gaudencio Garcia, President of the Universal Robina Corporation Employees’ Union – Farm Division, by military elements who approached him inviting him to become a military agent, forced him to sign a paper confessing NPA membership and included him in the “Rizal 26” accused of murder; (iv) death threats against, and surveillance of, Vicente Barrios, President of NAMASUFA–NAFLU–KMU; (v) surveillance and tailing of Arman Blase, Board of NAMAOS and spokesperson of the KMU, Southern Mindanao; (vi) harassment of Belen Navarro Rodriguez, wife of Ariel Rodriguez (active member of the Pacific Cordage Workers’ Association); (vii) surveillance of Leo Caballero, spokesperson of the KMU–Bicol Human Rights Desk; (viii) harassment and intimidation of officers and active members of AMADO–KADENA–NAFLU–KMU; (ix) continuous surveillance, intimidation, threat and harassment against officers and active members of the UFE–DFA–KMU Nestlé Cabuyao Union since the start of its strike in 2002, including surveillance and harassment of union activities such as meetings, protest actions and peaceful picketing by police and military in uniform or civilian clothes and false criminal charges against, and blacklisting from employment of 250 union members; (x) military intimidation of Luz Fortuna, wife of slain Nestlé Cabuyao Union leader Diosdado Fortuna; and (xi) continuous intimidation and surveillance of officers of workers of Tritran Union–Independent by the military.
30. 1125. The Committee further notes that by its communications dated 16 August and 3 September 2010, the UFE–DFA–KMU alleges continuing trade union rights violations at the Nestlé-Philippines Cabuyao factory. According to the union, the Government, together with the enterprise’s management created the NCWU to eliminate the UFE–DFA–KMU as the sole and exclusive bargaining agent for the Cabuyao workers, to undermine the final and executory decision of the Supreme Court and to annihilate the retirement benefits as part of the negotiable issue in the collective agreement. It further indicates that in January 2010, the Court of Appeals of the Philippines affirmed the earlier decision of the NLRC that the termination by the enterprise of more than 600 workers was legal and justified due to workers’ defiance of the DOLE Secretary’s Assumption of Jurisdiction Order. In April 2010, the Supreme Court dismissed the union’s petition for review regarding the illegal dismissal case due to the lack of merit.
31. 1126. The Committee notes the Government’s indication that follow-up letters were sent to the management of the relevant companies and that “backdoor” negotiations to facilitate the settlement of the labour dispute involving AMADO–KADENA–NAFLU–KMU is currently being undertaken by the DOLE Secretary. The Government further indicates that the cases of harassment raised in this case were scheduled to be discussed by the TIPC at its November 2010 meeting.
32. 1127. The Committee urges the Government to respond to the allegation submitted by the
    • UFE–DFA–KMU without delay. It further requests the Government to keep it informed on the outcome of the discussion of the abovementioned harassment cases by the TIPC Monitoring Body or of any other measures taken to facilitate the settlement of labour disputes and to indicate the progress made in ensuring the full and swift investigation of the alleged acts of harassment and intimidation. The Committee recalls that such measures should be undertaken following consultations with the most representative workers’ and employers’ organizations.
33. 1128. The Committee had previously requested to be kept informed of any measures taken to suppress the “order of battle” which leads to the commission of acts of violence against trade unionists on the basis of their purported ideology. The Committee notes with interest that pursuant to section 6 of Act No. 9745, “an ‘order of battle’ shall not and can never be invoked as a justification for torture and other cruel, inhuman and degrading treatment or punishment”.
34. 1129. The Committee reiterates its previous request to provide observations on the allegations concerning: (i) massive military deployment from the 66th IB of the AFP since September 2008 and incidents of military harassment against MUWU, NAMAOS, NAMASUFA and NAMASAN, Packing Plant 92 Workers’ Union and Rotto Freshmax Workers’ Union; (ii) conduct of meetings by military in September 2009 at the Universal Robina Corporation Employees’ Union – Farm Division, lecturing workers that they should dissociate from the KMU; (iii) since November 2008, deployment of the 66th IB in the vicinity of Sumitomo Fruits Corporation with military entering the premises on a daily basis during the management’s refusal to implement the latest CBA with NAMAOS, conducting daily forums, showing videos vilifying the KMU and NAMAOS as NPA supporters, and conducting a survey to identify the whereabouts of union leaders and members in January 2009; (iv) in 2006, deployment of the 28th IB of the AFP in the vicinity of the Suyapa Farm to watch over the union, with armed men on motorbikes patrolling the vicinity of the workplace and asking the whereabouts of union President Vicente Barrios and of the union’s activities; (v) in February 2008, deployment of the 71st, 48th and 69th IBs in the different barangays (villages) surrounding the Hacienda Luisita, conducting meetings with film screenings saying that “communism” is behind unions and strikes, and monitoring activities of ULWU leaders; (vi) the military conducting
    • film screenings of “Knowing your enemy” to farm workers in the Cagayan Valley, Bukidnon and Davao del Sur, tagging the different activist organizations like the KMU as communist fronts; (vii) deployment of AFP elements in Polomolok, Cotabato, where
    • AMADO–KADENA–NAFLU–KMU is active, openly accusing the KMU leaders as NPA recruiters, conducting programmes such as the “integrated territorial defence system” or psy-war operations in the community, red-baiting and smear campaigns against the KMU and Anakpawis Partylist, “social awareness programme, industrial safety focus seminars” to espouse anti-KMU and anti-union orientation; and (viii) in Bicol, deployment of the AFP community organizing, recovery and development (ACORD) team and the BDS in worker communities near the Pacific Cordage Corporation.
35. 1130. The Committee also once again requests the Government to keep it informed regarding the measures, including the issuance of appropriate high-level instructions, to: (i) bring to an end prolonged military presence inside workplaces which is liable to have an intimidating effect on the workers wishing to engage in legitimate trade union activities and to create an atmosphere of mistrust which is hardly conducive to harmonious industrial relations; (ii) to ensure that any emergency measures aimed at national security do not prevent in any way the exercise of legitimate trade union rights and activities, including strikes, by all trade unions irrespective of their philosophical or political orientation, in a climate of complete security; and (iii) to ensure the strict observance of due process guarantees in the context of any surveillance and interrogation operations by the army and police in a way that guarantees that the legitimate rights of workers’ organizations can be exercised in a climate that is free from violence, pressure or threats of any kind against their leaders and members.
    • Arrest and detention
36. 1131. The Committee deeply regrets that, except for stating that letters of intervention were sent in relation to the case of workers of Karnation Industries, no new information has been provided by the Government on the allegations of arrest and detention, and subsequent filing of criminal charges against trade unionists brought forward by the complainant, including: (i) the detention of 20 workers of Karnation Industries since 10 May 2007 at the Karangalan jail for exercising their right to unionize and struggle against allegedly unjust and illegal practices of their employer; (ii) the illegal arrest, detention since 7 May 2007, and filing of a trumped-up criminal case against Vincent Borja, KMU national council member and the KMU Eastern Visayas Regional Coordinator; (iii) the filing of fabricated criminal cases against AMADO–KADENA officers and members; (iv) the filing of trumped-up charges of multiple murder, attempted murder, and multiple attempted murder against PAMANTIK–KMU Chairman, Romeo Legaspi, and other union officers; (v) the criminalization of some 250 workers of Nestlé Cabuyao, charged with an average of 37 criminal cases each, before the Municipal Trial Court in Cabuyao and the Regional Trial Court in Biñan; (vi) the re-filing of trumped-up murder and attempted murder cases in Calapan City, Mindoro Oriental, against 72 persons, of which 12 are trade union leaders and advocates; and (vii) the illegal arrest and detention of attorney Remigio Saladero Jr, Chief Legal Counsel of the KMU, on fabricated charges of arson, murder, multiple murder, and attempted multiple murder. The Committee urges the Government to submit further and precise information in relation to these arrests and the legal or judicial proceedings upon which they are based.
37. 1132. The Committee recalls that it had previously noted with deep concern from the complainant’s allegations, that, for more than two-and-a-half years, the workers of Karnation Industries had been imprisoned, without judgment, in allegedly appalling conditions (prison cell not allowing 20 persons to sleep at the same time; inadequate food and medical care, etc.). Two of the 20 workers – Melvic Lupe and Leo Paro – died in jail of tuberculosis. In November 2009, under the counsel of attorney Remigio D. Saladero of the Pro-Labor Legal Assistance Center (PLACE), the Regional Trial Court in Morong, Rizal, granted the workers’ petition for bail. Fourteen out of the 18 workers have been temporarily released after posting bail (through a surety bond). However, the release of the remaining four workers was put on hold by the court after the complainant filed, on 28 December 2009, a motion for reconsideration to revoke the granting of bail. The court was scheduled to hear the motion on 11 January 2010.
38. 1133. The Committee urges the Government to communicate its observations in respect of the allegations regarding these 20 workers and, in particular, as regards the continuing detention of four of these workers; the KMU national council member and Eastern Visayas Regional Coordinator Vincent Borja; the AMADO–KADENA officers and members; the PAMANTIK–KMU Chairman Romeo Legaspi and other union officers; the 250 workers of Nestlé Cabuyao; and the 72 persons in Calapan City/Mindoro Oriental, of which 12 are trade union leaders and advocates. Regarding, in particular, the workers of Karnation Industries, the Committee once again urges the Government to take the necessary measures to ensure that any of those workers still imprisoned are immediately released. Should the investigation of the pending allegations lead to the determination that the persons concerned were detained in relation to their legitimate trade union activities (including the holding of a lawful strike), the Committee requests the Government to take the necessary measures to ensure that all remaining charges are dropped. It also requests the Government to communicate the texts of any judgments handed down in the above cases, together with the grounds adduced therefor.

The Committee's recommendations

1. 1134. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Welcoming the measures taken so far by the Government, the Committee requests it to continue keeping it informed of the steps taken and envisaged to ensure a climate of justice and security for trade unionists in the Philippines, and encourages the Government to develop a fully-fledged technical cooperation programme in this respect. The Committee expects that the Government will continue to engage with the KMU in dealing with cases involving its members and leaders and requests to be kept informed in this respect.
   • (b) As regards the alleged extrajudicial killings, abductions and enforced disappearances, the Committee:
   • (i) urges the Government to take all necessary measures in order to ensure that the investigation and judicial examination of all acts of extrajudicial killings, attempted murders, abductions and enforced disappearances advance successfully and without delay. It asks the Government to indicate without delay the progress made in this regard and provide any relevant court judgments;
   • (ii) with respect to the Hacienda Luisita incident, recalling that nine police officers had previously been identified as suspects in connection with the Hacienda Luisita incident and recommended to be charged for multiple homicide, urges the Government to provide specific information without further delay as to the institution of judicial proceedings for this incident which dates back to 2004; and
   • (iii) requests the Government to inform it of the progress made in the adoption of the Bill concerning enforced disappearances.
   • (c) As to the issue of lengthy procedures, the Committee:
   • (i) requests the Government to take the necessary measures to ensure the expeditious conclusion of proceedings in allegations of labour-related violence;
   • (ii) requests the Government to supply information on the working of the 99 regional trial courts designated by the Supreme Court, including on the length of procedures in practice, and to provide detailed information on the steps taken to create a special team of competent and welltrained prosecutors; and
   • (iii) asks to be kept informed on any further developments regarding the adoption and implementation of the “Omnibus Rules” being elaborated by the CHR.
   • (d) The Committee requests the Government to provide information on the implementation of Acts Nos 9851 and 9745.
   • (e) With regard to the alleged harassment and intimidation of trade union leaders and members affiliated to the KMU, the Committee urges the Government to respond to the allegation submitted by the UFE–DFA–KMU without delay and to keep it informed on the outcome of the discussion of the allegations of harassment and intimidation of trade union leaders and members affiliated to the KMU by the TIPC Monitoring Body or of any other measures taken to facilitate the settlement of labour disputes and to indicate the progress made in ensuring the full and swift investigation of the alleged acts of harassment and intimidation.
   • (f) With regard to the militarization of workplaces, the Committee:
   • (i) urges the Government to communicate its observations on the outstanding allegations;
   • (ii) requests the Government to keep it informed of the follow-through given to implementing the Guidelines for the conduct of the PNP, private security guards and company guard forces during strikes, lockouts and labour disputes, and of any progress made in updating them; and
   • (iii) further expects that the Government will take the necessary accompanying measures, including the issuance of appropriate highlevel instructions, to bring to an end prolonged military presence inside workplaces, to ensure that any emergency measures aimed at national security do not prevent the exercise of legitimate trade union rights and activities, including strikes, by all trade unions, irrespective of their philosophical or political orientation, in a climate of complete security, and to ensure the strict observance of due process guarantees in the context of any surveillance and interrogation operations by the army and police in a way that guarantees that the legitimate rights of workers’ organizations can be exercised in a climate that is free from violence, pressure or threats of any kind against their leaders and members. The Committee requests to be kept informed in this regard.
   • (g) With regard to the cases of arrest and detention, the Committee requests the Government:
   • (i) to communicate its observations in respect of the outstanding allegations of illegal arrest and detention;
   • (ii) to submit further and precise information in relation to these arrests and the legal or judicial proceedings upon which they are based;
   • (iii) to take all necessary measures so as to ensure that the investigation and judicial examination of all cases of alleged illegal arrests and detentions proceed in full independence and without further delay, so as to shed full light on the current situation of those concerned and the circumstances surrounding their arrest;
   • (iv) to communicate the texts of any judgments handed down in the above cases, together with the grounds adduced therefor; and
   • (v) as regards the prolonged detention of 20 workers from Karnation Industries, should the investigation of the pending allegations lead to the determination that the persons concerned were detained in relation to their legitimate trade union activities, the Committee urges the Government to ensure that any of the workers that are still imprisoned are immediately released and to take the necessary measures to ensure that all remaining charges are dropped.
   • (h) The Committee draws the special attention of the Governing Body to this case because of the extreme seriousness and urgency of the matters dealt with therein.