Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 356, Mars 2010

Cas no 2669 (Philippines) - Date de la plainte: 29-SEPT.-08 - Clos

Allegations: Military threat and harassment against IWSWU officers and their families; interference by the armed forces of the Philippines in trade union affairs by dissuading trade union members to engage in collective bargaining; and vilification campaign against IWSWU members and families to the detriment of their safety and security

1. 1226. The complaint is contained in a communication of the International Wiring Systems of Workers Union (IWSWU), dated 29 September 2008.
2. 1227. The Government sent its observations in a communication dated 15 January 2010.
3. 1228. The Government of 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. The complainant’s allegations

1. 1229. In its communication dated 29 September 2008, the IWSWU alleges violations by the Government of the Philippines of Conventions Nos 87 and 98. In particular, it alleges military threat and harassment against IWSWU officers and their families; interference by the armed forces in trade union affairs by dissuading trade union members to engage in collective bargaining; and vilification campaign against IWSWU members and families to the detriment of their safety and security.
2. 1230. The complainant alleges that those acts are being committed by the Government through the armed forces of the Philippines (AFP), especially those based in the Northern Luzon Command, Camp Aquino, Tarlac City and facilitated by the collaboration of barangay officials (village councils), the Department of Labor and Employment (DOLE) and the management of the International Wiring Systems (Phils) Corporation (IWSPC).
3. 1231. The IWSWU explains that it is a legitimate labour organization active at the IWSPC since 1996 and registered by the DOLE. Out of 6,048 company workers, 3,116 are union members. It is governed by the General Membership Assembly, its highest policy-making body, and the Board of Directors and Executive Committee composed of 50 elected officers.
4. 1232. According to the IWSWU, for over 12 years, it endures attempts by the company and the DOLE to weaken the union through supporting and directly campaigning for workers competing against the union’s leadership. Despite these attempts, the IWSWU leadership not only remained committed to promoting the welfare of its members, but also embraced the task of helping other workers from nearby factories in the province of Tarlac through education and free legal assistance in respect of work-related issues. Promotion and defence of legitimate workers’ rights and helping residents of neighbouring communities are the primary objectives of the union.
5. 1233. The IWSWU alleges that threats and harassment by the military began in 1998 when Ms Angelina Ladera was the President of the union. Since 1998, unidentified men, believed to be military, had tried to abduct her but failed. She had been under intense surveillance and in 2005 her name was included by the military in the “Order of battle and knowing the enemy”, a PowerPoint presentation of the military tagging several organizations as fronts for the communist party. Fearing for her life and safety, Ms Ladera resigned from the IWSWU in 2005. Even after her resignation, Ms Ladera continued her organizing work and remained under surveillance and was forced to live on the run. Mr Norly Pampoza, another former President of the IWSWU also resigned by the end of 2006, following the inclusion of his name in the list prepared by the military.
6. 1234. The complainant alleges that in 2008, the military threat and harassment of its leaders and their families worsened. In particular, the IWSWU alleges that in March 2008, the military from the AFP based in the Northern Luzon Command, began visiting trade union officers at their homes to invite them to the seminars organized by the military on the labour and trade union-related issues. On 6 March 2008, Ricardo Sosa, the IWSWU Chairperson of the Board, received an invitation from the military to come to the barangay hall to attend an anti-insurgency orientation organized by the military on 7 March 2008. At that meeting, the military directly linked the IWSWU to the leftist group (communists). He received further invitations on 11 and 12 March and 29 April 2008 when the military visited his house. In July 2008, he and another union Board member were approached by the military personnel and told not to ask too much during the forthcoming collective bargaining because it would cause the closure of the factory. The complainant states that such visits created fears in the families of the two trade union activists.
7. 1235. On 7 June 2008, Mr Dexter P. Datu, union President, and Mr Ramon Lopez, its Vice-President, were threatened by four men who introduced themselves as military and DOLE representatives and were allegedly told that if they loved their families, they must stop their activities. On 10 August 2008, a forum was organized by the military to discuss such issues as the relationship between the management of the company and its employees; the upcoming collective bargaining; and a support of the union by workers. The complainant alleges that men in civilian clothes who introduced themselves as military and DOLE representatives regularly visited houses of trade union officers either early in the morning or at night to discredit the union President by asserting that he is supporting the Communist Party and the New People’s Army. They were also told not to ask much during the next negotiation for a collective agreement so as not to cause the closure of the enterprise.
8. 1236. The IWSWU alleges that the military, through the barangay officials, were asking the IWSWU officers and members to attend the seminars and meetings. As residents, trade unionists were not expected to refuse the invitations. At the so-called seminars, the military discussed labour-related issues, the problems of the union and failure of the union to address workers’ concerns. According to the IWSWU, the military has always claimed that their seminars were coordinated with the Tarlac City government and the DOLE.
9. 1237. The complainant believes that the company knows or is involved in the military operations against the trade union and its officers. In this respect, it considers that the fact that the addresses and personal information on all union members are known to the military, and that this information is only available to the company’s management, points out to connivance between both.
10. 1238. The IWSWU further alleges that the management of the IWSPC interferes in trade union internal affairs so as to weaken the union. According to the complainant, the management refused to recognize the union and appointed its own, so-called provisional union officers. In November 2001, during the collective bargaining between the company management and the IWSWU, the management organized a workers’ meeting inside the plant. To ensure that workers would attend the meeting, the management stopped the production for one hour. The purpose of the meeting was to impeach the duly elected officers of the union, then led by Mr Pampoza, and to appoint their own provisional union officers. The management then recognized the appointed group of persons as union representatives and signed a collective agreement for the period of 1 July 2001 to 30 June 2004 within a week time. The national President of the Federation of Democratic Trade Unions (FDTU), to which the union was affiliated at the time, sent a letter to the enterprise management stating that the appointed provisional officers were the FDTU’s recognized officers. The management also requested the DOLE to recognize the legitimacy of the appointed trade union leadership.
11. 1239. Meanwhile, the duly elected officers continued to assert the rights to represent workers of the company through various means. They filed a complaint with the DOLE regional office questioning the impeachment and, with the support of the workers, conducted protest actions inside the company and at the vicinity of Luisita Industrial Park. To stop the IWSWU operations led by the duly elected leadership, the management withheld the union dues deducted from the union members and refused to pay the salaries of two union full-time officers as provided for in the collective agreement.
12. 1240. In response to the cases filed, the DOLE regional Director intervened in November 2001 and, with the management’s approval, called for a referendum to resolve what they called a union leadership crisis. To make the election valid, the referendum needed to obtain the votes of 50 per cent of union members. The referendum failed to get the required amount of votes. The DOLE regional Director then assumed the position of the union caretaker and acted like the union President. All transactions between the management and the union, including the collection of monthly union dues, passed through him. On 20 August 2002, the DOLE conducted another union election. The duly elected officers participated in the election except for the union President because of the pending appeal to the court. The result of the election was overwhelming and the right of the elected officers to represent the union was again reaffirmed.
13. 1241. In February 2004, a few months before the expiration of the collective agreement, the Court of Appeals rendered a decision on the impeachment complaint filed by the elected officers. According to the decision, “ ... the election conducted in August 2002 is set aside and the petitioners are reinstated as the lawful officers of the union until they are lawfully removed”.
14. 1242. On 5 March 2005, the IWSWU disaffiliated from the FDTU and applied for an independent union registration with the DOLE. The FDTU did not accept the disaffiliation. Its national President sent a letter to the plant management insisting on its recognition of a certain Victoria Tigco as the provisional President of IWSWUFDTU and asked the company to transact any union-related business with her instead of the duly elected officers led by the union President Pampoza.
15. 1243. Capitalizing on the letter from the FDTU, while ignoring the court decision on the legitimacy of the union, the management filed a case with the DOLE regional office requesting the issue between the independent IWSWU and the FDTU be settled before the beginning of the collective bargaining. The DOLE facilitated a conciliation meeting and an agreement was reached on 30 August 2006 to proceed with the collective bargaining. A new collective agreement was signed on 25 October 2006.
16. 1244. The IWSWU states that while the DOLE issued an order affirming the legitimacy of its current officers led by Dexter Datu, in the wake of negotiations for a new collective agreement to begin on 30 June 2009, it fears the renewal of harassment which usually accompanied collective bargaining. It further indicates that the company management appealed the decision of the DOLE to the Court of Appeals.
17. 1245. As a pre-emptive measure, the union wrote to the Tarlac City government and its city council in July 2008 asking to immediately conduct an investigation on the continuing threats and harassments against the IWSWU officers and members, and for an intervention to immediately halt harassments against them. The union also sought the city government’s assistance to provide them with an immediate protection against any possible physical violence by the military and its agents. However, the Tarlac City government has not done anything regarding the union’s request in spite of the series of follow-ups.
18. 1246. On 13 August 2008, the union participated in a dialogue with the Commission on Human Rights (CHR) and formally lodged a complaint before it. Its chairperson vowed to investigate the complaints and promised to conduct a dialogue with the AFP. On 26 September, CHR investigators came to investigate the case; however, most of the members of the union executive committee were not at the factory, as another hearing was being held in the neighbouring province in Pampanga. In September, the Center for Trade Union and Human Rights (CTUHR) sent an urgent appeal to the Committee on Labor and Employment and the Committee on Human Rights of the House of Representatives urging both committees to look into the cases. On 26 September the Committee on Human Rights conducted an on-site investigation on human rights violations in Central Luzon. The union is yet to hear back from the Committee on Labor and Employment. The CTUHR has been following up the matter, but has been told that the Committee has difficulty convening due to budget constraints and thus has not yet discussed the case.
19. 1247. The IWSWU calls for an immediate end to the military harassments of its officers and to the vilification campaign against the IWSWU and its officers; immediate pull-out of the military personnel from the Hacienda Luisita; an end to the state interference in trade union affairs; a thorough investigation of the cases regarding the interference of state forces, particularly the military, in labour and industrial relations. It urges the Government to take legislative measures to formulate labour laws that are in compliance with international labour standards and to immediately allow (invite) an ILO high-level mission to the Philippines to look into the labour rights violations, particularly in the free trade zones.

B. The Government’s reply

1. 1248. In its communication dated 15 January 2010, the Government indicates that a high-level ILO mission was carried out to the Philippines from 22 to 29 September 2009. In this respect it indicates that following the mission, four major commitments were outlined by the Government to ensure the full compliance with the principles of freedom of association in the country:
2. 1. The Government will ensure expeditious investigation, prosecution and resolution of pending cases concerning alleged harassment and assassination of labour leaders and trade union activists.
3. 2. The Government will create a high-level tripartite case-monitoring committee and will constitute the National Tripartite Industrial Peace Council (NTIPC), chaired by the Secretary of Labor and Employment.
4. 3. The Government will work closely with the ILO, its social partners from labour and employers sectors, and other stakeholders to establish a technical cooperation programme that will raise the awareness and strengthen the capacity of all relevant government institutions including the social partners in the promotion and protection of labour rights.
5. 4. The Government is working on the proposed legislative reforms to further strengthen trade unionism and remove obstacles to the effective exercise of labour rights.
6. 1249. With regard to the allegations of militarization and military interventions in this case, the Government indicates that the DOLE regional office has submitted a report on its extensive engagement in the area in terms of livelihood assistance and training of trade unions and in the informal sector. The report reiterated that there had been no instances where it had authorized personnel to interfere in union activities or be a part of the alleged singling out of the IWSWU as a communist front or interfering in their union activities. In fact, its decisions in the various cases favoured the complainant trade union.
7. 1250. The Government further indicates that the high-level mission has proposed a combined awareness raising and capacity building programme on human rights, trade union rights and civil liberty for the military and the police, which could be co-conducted with the Commission on Human Rights of the Philippines (CHRP). It also proposed updating of the Guidelines for the conduct of the Philippine national police (PNP), private security guards and company guard forces during strikes, lock-outs and labour disputes (“the Guidelines”). Responding to the suggestions of the mission, the Government held a National Tripartite Conference on Principles of Freedom of Association from 2 to 4 December 2009 in collaboration with the ILO with a specific focus on the PNP, the AFP and the Philippine Economic Zone Authority (PEZA). The joint statement by the tripartite partners, the PNP and the AFP outlined the need for awareness raising in the PNP and the AFP by: integrating trade union rights module in the human rights module for new recruits and for promotion; making known the existence of PNP administrative discipline mechanism for violation of trade union rights by its personnel; and providing for a section for trade union rights in the existing human rights desks at the PNP and the AFP. Through the joint statement on economic zones, the parties agreed to intensify the conduct of labour-management education seminars in the economic zones to ensure compliance with the Philippine labour laws.
8. 1251. The Government further indicates that the Guidelines are being reviewed at the level of executive agencies and with the tripartite constituency at industry, regional and national levels. The Guidelines will be effective in March 2010 and will be included in the training and awareness-raising module to be developed with the ILO and will be implemented by the second semester of 2010.

C. The Committee’s conclusions

1. 1252. The Committee notes that the present case concerns allegations of military threat and harassment against IWSWU officers and their families; interference by the AFP in trade union affairs by dissuading trade union members to engage in collective bargaining; and vilification campaign against the IWSWU members and families to the detriment of their safety and security.
2. 1253. From the outset, the Committee recalls that the rights of workers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected. A climate of violence, coercion and threats of any type aimed at trade union leaders and their families does not encourage the free exercise and full enjoyment of the rights and freedoms set out in Conventions Nos 87 and 98. All States have the undeniable duty to promote and defend a social climate where respect of the law reigns as the only way of guaranteeing respect for and protection of life [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 44 and 58].
3. 1254. The Committee notes with interest the report of the high-level ILO mission which was carried out in the Philippines from 22 September to 1 October 2009. The Committee appreciates the cooperation demonstrated by the Filipino authorities which allowed the mission to meet with a wide range of senior government officials and army officers; representatives of employers’ and workers’ organizations, including those involved in the cases pending before the Committee; and representatives of Congress, the Supreme Court and the Court of Appeals, the CHR, the PEZA, agencies in charge of labour dispute settlement, law enforcement agencies (including the AFP and the PNP), etc. The Committee notes with interest that the mission visited the IWSPC to meet with its management and the IWSWU and that it had discussions with the AFP, regional authorities, DOLE and PEZA in Tarlac.
4. 1255. In this respect, the Committee notes that the management of the company demonstrated a positive attitude and a will to conclude a collective agreement in October 2009. According to the company representatives, the management finds the dialogue with a few representatives much easier than negotiating with workers individually and was committed to cooperatively engaging with the IWSWU in the upcoming collective bargaining process. With regard to the IWSWU’s concerns about insecurity, the company representatives denied any involvement and assured that the company had never released any confidential information on trade unionists. They also acknowledged there had been some problems of division among workers, but these were matters of the past, most of which had occurred under previous management of the company. Despite bargaining deadlocks that have occurred in the past, the parties had always been able to settle. In general, the company was very open to capacity building and training.
5. 1256. The Committee further notes with interest that following the mission, a National Tripartite Conference on Principles of Freedom of Association was jointly held in the Philippines in December 2009 by the Government and the ILO. The activity specifically focused on the AFP, PNP and PEZA. The Committee welcomes the joint statement made by the participants, which outlined the need for awareness raising among the PNP and AFP personnel on the subject of human rights, civil liberties and trade union rights, and the means to achieve it. In this respect, the Committee also notes with particular interest the Government’s indication that the Guidelines for the conduct of the Philippine national police, private security guards and company guard forces during strikes, lock-outs and labor disputes are being reviewed at the level of executive agencies and with the tripartite constituency at industry, regional and national levels. According to the Government, the Guidelines, which will enter into force in March 2010, will be included in the training and awareness-raising module to be developed with the ILO and will be implemented by the second semester of 2010.
6. 1257. The Committee welcomes the information provided by the Government on four concrete measures it intends to take to ensure the full compliance with freedom of association principles. In this respect, it expects that the Government will carry out expeditiously an independent investigation of all alleged cases of interference in trade union affairs, as well as the threats and harassment of trade unionists by the state authorities and the military, and ensure a full and appropriate redress and, in particular, requests the Government to ensure that the IWSWU members are no longer harassed due to their union membership. It further expects that the Government will take the necessary measures to prevent in the future any cases of threats and harassment of trade unionists and their families, as well as cases of interference in trade union affairs by the state officials and the personnel of the AFP and the PNP.
7. 1258. The Committee recalls in this regard that respect of principles of freedom of association requires that the public authorities and employers exercise great restraint in relation to intervention in the internal affairs of trade unions [see Digest, op. cit., para. 859]. With regard to the specific allegation of the DOLE organizing and participating in the trade union election, the Committee recalls that the presence during trade union elections of the authorities is liable to infringe freedom of association and, in particular, to be incompatible with the principle that workers’ organizations shall have the right to elect their representatives in full freedom, and that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof [see Digest, op. cit., para. 438].
8. 1259. Noting from the mission report that the representatives of armed forces with whom the mission has met have confirmed to the holding of community meetings where the military set out to educate workers on the exercise of their trade union rights, as had been alleged by the complainant organization, the Committee encourages the Government, in collaboration with the social partners and the ILO, to hold further trainings on human rights, civil liberties and trade union rights so as to assist the AFP and PNP personnel in better understanding the limits of their role in respect of freedom of association rights and to ensure the full and legitimate exercise by workers of these rights and liberties in a climate free from fear.
9. 1260. The Committee further encourages the Government to pursue its efforts in strengthening of the relevant state institutions for combating impunity and, in particular, establishing a high-level tripartite case-monitoring committee within the framework of the NTIPC.
10. 1261. The Committee requests the Government to keep it informed of the developments in respect of the measures it has committed to undertake in order to ensure full compliance with Conventions Nos 87 and 98 ratified by the Philippines. The Committee requests the Office to continue providing its technical cooperation to the Government of the Philippines in this respect.

The Committee's recommendations

1. 1262. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee expects that the Government will carry out expeditiously an independent investigation of all alleged cases of interference in trade union affairs, as well as the threats and harassment of trade unionists by the state authorities and the military, and ensure a full and appropriate redress and, in particular, requests the Government to ensure that the IWSWU members are no longer harassed due to their union membership. It further expects that the Government will take the necessary measures to prevent in the future any cases of threats and harassment of trade unionists and their families, as well as cases of interference in trade union affairs by the state officials and the personnel of the AFP and the PNP.
   • (b) The Committee encourages the Government, in collaboration with the social partners and the ILO, to hold further trainings on human rights, civil liberties and trade union rights so as to assist the state authorities, the AFP and PNP personnel in better understanding the limits of their role in respect of freedom of association rights and to ensure the full and legitimate exercise by workers of these rights and liberties in a climate free from fear.
   • (c) The Committee further encourages the Government to pursue its efforts in strengthening the relevant state institutions for combating impunity and, in particular, establishing a high-level tripartite case-monitoring committee within the framework of the NTIPC.
   • (d) The Committee requests the Government to keep it informed in respect of all measures taken to implement the above recommendations.

High-level ILO mission to the Philippines on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)

1. (22 September-1 October 2009)
2. I. Background and terms of reference
3. The Philippines ratified Convention No. 87 (C. 87) on 29 December 1953.
4. The Philippines' application of C. 87 was specifically discussed in the Committee on the Application of Standards at the 96th Session (June 2007) of the International Labour Conference (ILC) arising from a number of trade union complaints and long-standing issues raised by the Committee of Experts on the Application of Conventions and Recommendations (CEACR) on the application of C. 87. On this basis, the 2007 Conference Committee on the Application of Standards requested the Government to accept a high-level ILO mission. This mission was accepted by the Government during the 98th Session of the ILC in June 2009, at the Committee on the Application of Standards.
5. In addition, eight cases were pending before the ILO Governing Body Committee on Freedom of Association, notably active cases involving:
6. - the Toyota Motor Philippines Corporation (Cases Nos 2252 and 2652);
7. - the Kilusang Mayo Uno Labor Center (KMU) (Case No. 2528);
8. - the Dusit Hotel and the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers' Associations (IUF) (Case No. 2716);
9. - International Wirings Systems (Case No. 2669);
10. and follow-up cases involving:
11. - Telefunken Semiconductors (Case No. 1914);
12. - the University of San Agustin and the Federation of Free Workers Visayas Council (Case No. 2488);
13. - Technical Education and Skills Development Authority (TESDA) and Public Services Labor Independent Confederation (PSLINK) supported by Public Services International (PSI)) (Case No. 2546)
14. - the University of San Agustin and the Federation of Free Workers Visayas Council (Case No. 2488);
15. The high-level mission (HLM) set out with the following objectives:
16. - To obtain a greater understanding of the application of C. 87 in law and practice by the Philippines and to provide detailed information on the trade union situation on the ground to the ILO supervisory bodies.
17. - To clarify issues and gaps in the application of C. 87 as well as identify areas in which the Office could provide support and technical assistance, with the objective of proposing solutions in line with comments made by the ILO supervisory bodies.
18. - To identify further areas for training and capacity building to improve the application of C. 87 and the principles of freedom of association.
19. The HLM was undertaken by Ms Cleopatra Doumbia-Henry, Director, International Labour Standards Department, ILO, Geneva; Ms Karen Curtis, Deputy Director, International Labour Standards Department, ILO, Geneva; and Mr Tim De Meyer, Senior Specialist on International Labour Standards and Labour Law, ILO Subregional Office for East Asia (Bangkok).
20. II. Officials and other persons met by the mission
21. The mission met initially with a wide range of senior government officials and army officers to explain the terms of reference of the mission; the principles and standards on freedom of association; and the functioning of the ILO supervisory system. Subsequently, the mission met with representatives of employers' and workers' organizations collectively, followed by individual sessions at which workers and employers directly involved in the pending Committee on Freedom of Association (CFA) cases were heard, and, in some cases, additional allegations were submitted to the HLM.
22. The mission also met separately with representatives of:
23. - Congress;
24. - the Supreme Court and the Chair of Court of Appeals Division;
25. - the Commission on Human Rights of the Philippines;
26. - the Philippine Economic Zone Authority (PEZA);
27. - the Technical Education and Skills Development Authority (TESDA);
28. - agencies in charge of labour dispute settlement, i.e. the Bureau of Labor Relations (BLR), National Labor Relations Council (NLRC), and the National Conciliation and Mediation Board (NCMB);
29. - law enforcement and security agencies, notably the Department of Justice (DOJ), the Department of National Defense (DND), the Armed Forces of the Philippines (AFP), and the Philippine National Police (PNP);
30. - the Civil Service Commission and the Public Sector Labor Management Council.
31. Meetings planned with the Melo Commission and with an employer representative in the Dusit Hotel Case and the Telefunken Case did not materialize.
32. The mission paid two plant visits, that is, the Toyota Motor Company of the Philippines (TMCP) in the Santa Rosa Estate in Laguna; and the International Wiring Systems Corp., in San Miguel, Tarlac City.
33. Full details of the programme are attached as Annex I.
34. III. Information obtained
35. Briefing with government officials
36. (22 September)
37. The briefing was attended by a wide range of senior government officials representing the Departments of Labor and Employment (DOLE), Interior and Local Government (DILG), Foreign Affairs, Trade and Industry, and National Defense; the Presidential Human Rights Committee (chaired by the Executive Secretary Eduardo Ermita); regional commanders of the AFP; and the PNP.
38. In his opening address, Mr Romeo C. Lagman (Undersecretary, DOLE) emphasized the democratic credentials of the Philippines, referring to respect for the rule of law, the separation of powers and the protection of human rights. He recalled that the Philippines had been the first ASEAN member State to set up a constitutional body for the promotion and protection of human rights. He denied any schemes to suppress freedom of association. The KMU had existed since 1980, remained unregistered, yet had continued to represent an alleged 300,000 workers without interference for the last 29 years. Claimed killings of 66 persons were actually not labour-related but common crimes, as an actual labour dispute provided the backdrop to only 13 cases. He stressed that most of the killings were, therefore, not within the purview of C. 87. He denied there was a climate of impunity pervading in the country describing regrettable killings such as in Hacienda Luisita as the exception rather than the norm. Military police were not detached in areas with concentrations of workers and their organizations. He highlighted that the Philippines had enjoyed relative industrial peace, and that strikes were incidents of the past. Only few work stoppages had been witnessed since the beginning of the year. The large trade unions had no serious complaints, while the small militant groups could exercise their right to voice complaints without fear.
39. In her presentation, Undersecretary Rosalinda D. Baldoz (DOLE) summed up the labour law reforms that had already been undertaken with a view to giving effect to C. 87 and, in particular, the adoption of Act No. 9481, which had been noted by the supervisory bodies.
40. With respect to the areas for further labour law reform, DOLE had made the following proposals:
41. - amend article 234(c) to align the 20 per cent union membership requirement registration of independent unions with the registration requirement for chartering of local chapters of federations and national unions;
42. - amend article 237(a) to reduce the number of affiliated locals for purposes of registration of federations and national unions from 10 to five provided that a minimum aggregate membership of 1,000 is attained;
43. - repeal the requirement of prior permission by the Secretary of Labor for legitimate unions to receive foreign assistance (article 270);
44. - amend article 264(a) (prohibited acts) and article 272 to remove the penalty of imprisonment for participation in illegal strikes due to failure to comply with procedural requirements.
45. - to retain the Secretary of Labor's power to assume jurisdiction over labour disputes affecting national interest under article 263(g), but amend the implementing rules on strikes and picketing under Department Order No. 40/2003, so as to provide for procedural guidelines in the exercise of such power. The amended procedure would include the filing of a request for assumption of jurisdiction by either of the parties to the dispute and the conduct of a conference with the parties prior to any assumption of jurisdiction.
46. With respect to the KMU case before the CFA (No. 2528), Undersecretary Baldoz provided the details drawing from PNP reports.
47. The case involved alleged killings of 39 trade unionists, 16 incidents of harassment, and 11 abductions or forced disappearances, adding up to a total of 66 cases from 2001 to 2009.
48. The alleged killings, harassments and abductions involved difficulties in identifying the victims of killings as trade unionists or advocates of trade union rights due to a lack of official records of their union membership. As a result, only 13 were in the Government's view possibly labour-related cases, involving 18 victims, that is, the victim is either an organizer or a union member regardless of whether or not there was a strike or labour dispute at the time of death and the circumstances indicate a possible relation to labour issues and concerns.
49. More serious are the difficulties faced in the investigation and prosecution due to a number of factors which include, among others, the absence of witnesses or unwillingness to cooperate by members of the immediate families; the absence of a complaint or report filed before competent authorities; and distinguishing between activities in the exercise of legitimate trade union rights, and activities arising from insurgency operations.
50. The PNP report shows that in the 39 cases of alleged killings of trade unionists, there are 16 cases filed, of which one involved legal arrest and no killing; one case involved a legitimate police operation; one case is considered closed; one case is an alleged abduction; and 19 cases are under investigation. The PNP report in the 16 cases filed also show that three cases involved the Communist Party of the Philippines - New People's Army (CPP/NPA); one case involved the PNP; eight cases involved civilian suspects; three cases concerned security guards; and one case concerned the military. Regarding the status of the cases filed, the PNP report also shows that nine have been filed in court and seven are at the Prosecutor's office. The status of the 24 identified suspects in the 16 cases filed is: ten arrested, four killed, three surrendered, seven at large. The PNP report on 19 cases under investigation also shows that in two cases, the complainant moved to an undisclosed place; in six cases the complainant was no longer interested in pursuing the cases; and 11 cases remained under investigation.
51. The PNP report in 11 cases of alleged abduction also shows that in two cases, victims moved to undisclosed places; no complaint filed in one case; no report of incident in one case; six are under investigation; and in one case the alleged victim's organization is non-existent. Of the 11 cases, seven took place in 2006, three cases in 2007 and only one case in 2008. Four cases were archived, eight cases were dismissed, four cases were undergoing trial, 20 cases were under investigation, one had no record of case filed, one case was dropped or closed, and one case was dismissed.
52. The PNP report on the 16 cases of alleged harassment shows that in three cases warrants of arrest had been issued; in three cases no harassment had occurred; six cases were under investigation; in three cases the complainant had moved overseas or to an undisclosed place; and in one case the alleged victim's organization did not exist.
53. The PNP report on the 66 cases may be summarized as follows: in six cases, the alleged victim moved overseas or to an undisclosed place; one alleged abduction; one closed; four legitimate police operations; 16 filed cases; 20 cases were under investigation; eight complainants were no longer interested in pursuing the case; four did not file complaint; in two cases, no incident was reported; in one case the victim's organization did not exist; and in three cases, no harassment occurred.
54. Finally, Undersecretary Baldoz formulated proposals to address gaps in the implementation of the law by strengthening institutional linkages of DOLE with other competent authorities:
55. - with PNP, under the DILG, the PEZA, under the Department of Trade and Industry (DTI), and their regional offices through the existing joint guidelines on the conduct of the PNP personnel, private security guards and company guard forces during strikes, lockouts and labour disputes in general;
56. - with PNP-DILG, PEZA-DTI, and their regional offices, and Civil Service Commission and the Public Sector Labour Management Council (CSC-PSLMC) through the conduct of labour education on international labour standards and in particular C. 87;
57. - with PNP, DOJ and the PHRC through the monitoring of cases involving trade unionists. The proposal to include trade union organizations in case monitoring is welcomed;
58. - with the Presidential Legislative Liaison Office (PLLO) and the congressional committees on labour through active participation in public hearings;
59. - with DTI and PEZA through monitoring of the implementation of the memorandum of social understanding on labour and social issues arising out of the activities of multinationals;
60. - with PNP-DILG, DOJ and the task forces under the PHRC, to coordinate closely in the sustained implementation of initiatives of various government agencies involved in the administration of the criminal justice system in relation to cases of alleged killing, harassment and abduction of trade unionists.
61. Another response is capacity building within the labour administration through training of senior officials, bureau and regional directors, med-arbiters, conciliator-mediators, labour arbiters, legal officers, labour inspectors, sheriffs and technical support staff, the secretariat to the tripartite industrial peace council at the national, regional, city and provincial level, and the industrial tripartite councils themselves.
62. The 2008-10 Decent Work Common Agenda under the theme "narrowing decent work deficits" serves as a useful framework for a technical cooperation and assistance programme. Some of these responses and initiatives are already included in the Decent Work Common Agenda on Strategic Objective No. 1 (fundamental rights at work) and Strategic Objective No. 4 (tripartism and social dialogue), while other jointly agreed priority actions can be integrated based on the outcome report of the mission.
63. Mr Ricardo R. Blancaflor, Undersecretary of the Department of Justice, provided an overview of the criminal justice system in the Philippines, in particular as it related to the allegations of extrajudicial killing, abduction and harassment. He explained that the criminal justice system rested on five pillars: community, investigation, prosecution, judiciary, and correction. Many cases were dismissed by the prosecution authorities because the process of investigation had not been done in a proper manner. The PNP and the National Bureau for Investigations (NBI) handled investigations, not the prosecution authorities. Only the NBI was authorized to issue arrest warrants, not the AFP. The duty of the prosecution was to evaluate findings or evaluate complaints, and file corresponding information.
64. The prosecution delays in the cases related to C. 87 were due to: (1) case overload. Each prosecutor handles an average of 650 cases. Some 30 to 40 criminal cases are calendared per day in court and three to four criminal cases proceed to trial on the same day. As a result, a criminal case is fortunate to have three trial sittings in one year. Some courts have no assigned prosecutor; (2) the procedure relies heavily on testimonial evidence, rather than forensic evidence; (3) witnesses most of the time retract statements having reached settlement with offenders, and some are threatened.
65. Of the 12 cases that were currently considered as labour-related, three were being investigated; two had been dismissed after preliminary investigation; three had been dismissed by the court; and four were pending with the court. The impression of a culture of impunity and lack of care for witnesses had been brought about by inaccurate and incomplete reporting. The media hardly covered cases where military personnel were indeed arrested, but preferred to target cases where no progress was made in identifying and arresting the suspects. In addition, the Witness Protection Programme currently covered those involved in the prosecution of 14 sensational cases; 16 media murder cases; 26 cases of political killing; and four cases of rebellion and coup d'état. The Undersecretary stressed that the Witness Protection Programme had never lost a witness except one recently, who had left security coverage. He recalled that the UN Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions acknowledged progress in the investigations and charges filed in at least four recent cases involving killings of members of the media. In reply to queries concerning the Human Security Act, he stated that the Act was not being applied as it had been challenged as unconstitutional and the judgement had not yet been rendered.
66. General meeting with employers on terms of reference
67. Employer representatives included:
68. - Attorney Ancheta Tan - President Emeritus, Employers Confederation of the Philippines (ECOP)
69. - Attorney Rene Soriano - Honorary President, ECOP
70. - Mr Mario O. Mamon - ECOP
71. - Mr Miguel Varela - ECOP
72. - Mr Sabino Padilla - Padilla Law Office (attorney in the case of the University of San Agustin)
73. - Mr David T. Go - TMPC
74. - Mr Joseph Matthew Sobrevega - TMPC
75. - Mr Jose Maria A. Aligada - TMPC
76. - Mr Eric Mercado - International Wiring Systems Philippines
77. - Ms Stella Ninfa B. Mendoza - International Wiring Systems Philippines
78. - Ms Digna Remolana - International Wiring Systems Philippines
79. - Mr Nestor Cusi - International Wiring Systems Philippines
80. Mr Ancheta K. Tan (ECOP) stated that ECOP was looking forward to the closure of some cases that had been moving back and forth in the Committee of Experts and the Conference Committee, while the Philippines was one of the freest countries in the world and the last one to think of as a subject of inquiry. He felt there was no need to go into cases where the highest authority of the land had handed down a final resolution. Labour-related issues should be separated from matters already dealt with by Philip Alston, United Nations Special Rapporteur on Extrajudicial Executions.
81. The employers present also voiced their concern about their lack of involvement in the cases submitted to the ILO's CFA. In some cases, the employer was not even aware that a complaint had been presented to the ILO or what the subject of such a complaint was. They urged the ILO to intervene with the Government to ensure that they were duly informed in such cases so that they could defend themselves from accusation.
82. Some of the cases were considered by the employers to be moot as the Supreme Court had already handed down a final judgement and many of the workers had accepted severance pay. One of the cases also concerned a company which apparently no longer existed and had been split into three separate companies. In this case, the question of reinstatement was no longer valid and only the matter of pension rights could possibly be considered.
83. The Employers present pledged all possible cooperation and information that would help to close the pending cases. Mr Padilla recommended that a protocol be put in place so that employers are systematically notified and can closely coordinate with the Government the response to complaints which concern them.
84. General meeting with workers on terms of reference
85. The widely attended meeting focused on answering questions relating to the nature of the mission. A number of unions voiced concern about corruption in general, and about the Government's consistent position that the ILO only issues recommendations or that matters are already resolved following a Supreme Court decision. The KMU pointed out that since the visit of the Special Rapporteur extrajudicial killings had gone up further from the already high number of 64 to 92. The Alston report, which had been referred to by the supervisory bodies, should be a more active basis for the Government's consideration.
86. All trade unions expressed the firm hope that the mission would result in more than a paper exercise. The workers' struggle in the Philippines was extremely difficult, and expectations were high that the mission could come up with tangible results.
87. Meeting with the workers
88. The Alliance of Progressive Labor (APL) submitted a "joint position" paper on behalf of 19 trade union organizations, citing 50 incidents of violation of C. 87 (on record). In particular, it referred to restrictions in the Labour Code to workers' freedom of association, violence against trade unionists and ineffective protection through the legal system, obstacles in the labour justice system to organizing, bargaining and peaceful concerted actions, the repression of public sector unionism and the weaknesses of policy making and policy enforcement mechanisms for the public sector.
89. The Trade Union Congress of the Philippines (TUCP), which organizes 24 federations, equally read a statement.
90. The KMU delivered a statement of the following alleged violations of C. 87:
91. - the 20 per cent registration threshold laid down in article 234(d) of the Labour Code;
92. - Departmental Order (DO) 18-02 of 2002 which promotes labour contracting;
93. - the increased hiring of agency or fixed-term workers;
94. - the right of employers to file for conciliation of registration disputes;
95. - extrajudicial killings, by far the worst violation, which weakens unions by depriving unions of their members and leaders;
96. - the filing of fabricated cases, trumped up criminal charges and ignoring of due process (e.g. in Hacienda Luisita);
97. - the presence of the armed forces in workplaces, so that even fruitful bipartite talks are forestalled by the presence of the military;
98. - physical assaults during strikes, which prevent workers from organizing and collective bargaining;
99. - article 263(g) of the Labour Code, which authorizes assumption of jurisdiction over disputes and empowers employers to call on the military in case workers fail to heed return-to-work orders;
100. - article 263, which requires a majority vote and a seven-day strike ban, making it easy to ban unions, or to reduce the efficacy of a strike;
101. - docket fees in cases before courts are often too high for ordinary unions;
102. - interference in union election cases, and the threat of charge with criminal prosecution;
103. - criminalization of labour disputes, and workers who are sometimes made to languish in jail.
104. The FFW pointed to the violation of civil liberties, and the use of non-regular employment as a union-busting tactic. Emphasis should be given not only to changing laws, as the Government would always answer that there is a pending law, but that the matter cannot be discussed unless the President certifies. The ILO should offer more technical cooperation, particularly to the labour courts. Hurdles in the judicial system should be removed so that court procedures are shortened to a minimum - cases can currently linger on in the courts for ten years or more. Finally, the Philippines had no shortage of tripartite bodies, yet there appears to be a lack of social dialogue in many aspects, so that issues remained undiscussed and unresolved.
105. Other representative trade unions reiterated many of the points made by the national centres, adding also a few new facts and recommendations:
106. - Very few unions are readily recognized by employers as negotiating partners, suggesting a poor climate of social dialogue.
107. - The mission should refer to the Alston visit of 2007 and report of 2008 as the report goes a long way towards recognizing systematic attacks on militant progressive unionists as part of counter-insurgency campaigns.
108. - Organizations representing contractual workers for the purpose of collective bargaining fail to be recognized as trade unions.
109. - More training is needed, also for judges.
110. - (Public sector). The highest regional president of the Confederation of Public Employees of Leite, Professor Aqui was killed in front of his students by the military. Government employees have been denied the right to strike since 1987. Meanwhile, policies of privatization have led to job losses of 40-60 per cent in government-controlled agencies. As a result of Executive Order No. 180, there is no general representation of workers in the public sector labour "management" council since all voting members come from management, while five non-voting members represent the confederation.
111. - DOLE is still considering the banking sector as an industry of national interest for the purpose of the right to strike.
112. - (PSLINK) Section 12 of the Amended Implementing Rules and Regulations of Executive Order 180 should be amended;
113. - Philippine Airlines (PAL) plans to spin off catering, cargo handling, reservations, medical and a range of other services, employing 4,000 ground employees. Spinning off will be to Macro Asia, owned by the same owner as PAL. Since the union was certified in 2002, no collective agreement has been negotiated as a result of a moratorium on collective bargaining.
114. - The HLM should look into the role of DOLE and the military in Mindanao, where witnesses of incidents regularly have to hide in the mountains and threats are continuing;
115. - (Public sector - PSI). The 30 per cent threshold for the registration of trade unions should be lowered to 10 per cent as there is no protection without registration. The requirement is that there should be one union representing all teachers. Bonuses cancelled by the commission of auditors should be reinstated as upheld by the Supreme Court.
116. - The power sector has been privatized and NAPOCOR spun off into smaller companies. Around 8,850 retrenched workers were rehired by different components (division, generation, distribution, assets-liabilities management), but had to accept wage cuts up to 30 per cent. Union moves have been curtailed since 2005 by eliminating check-off facilities. The ADB recognized in its loan agreement that a severance package for retrenched workers is a legitimate cost of restructuring, but nothing has happened.
117. - A memorandum of understanding (MOU) of the Civil Service Commission categorizes mass absence by five people as concerted action.
118. Meeting with individual complainants
119. The HLM met with individual complainants and employers involved in the pending CFA cases. The following is a summary of relevant information gathered.
120. National Union of Workers in Hotel, Restaurant and Allied Industries (NUWHRAIN) - Dusit Hotel Nikko Chapter
121. (CFA Case No. 2716)
122. The union representatives suspected that funds earmarked from service charges for reinstatement of dismissed workers had been spent on bribes. At any rate, millions of pesos had already been spent on bribes and the union had therefore requested an audit of the fund. The then manager of the Dusit Hotel Nikko had meanwhile been transferred to Dusit Dubai. Another motion pending with the Supreme Court challenged the fact that a judge which had retired since 2004 had participated in the February 2009 resolution. That resolution had hurriedly refused reconsideration, deciding not to elevate the deliberations to the banc, despite an en banc resolution being the normal rule for overturning precedent. An attorney clerk who had admitted to making a "human error" had taken early retirement in June 2009. The union submitted that it followed the rule of law, but that, in its view, none of the decisions in this case were following the rule of law. The union noted that no less than three cases were pending before the bar of the Philippines considering disbarment of lawyers for falsification of documents, or producing unethical documents. In the case at hand, the court did not answer the question why women workers were also dismissed although they had not cut their hair short. The union suspected that the Supreme Court had tried to evade the arguments of the union. It considered, for example, that the union had committed a violation of ingress or egress, while the Secretary of Labor had testified to the contrary, and the Ayala Center - where the hotel is located - had been cordoned off at the time by security guards and police in full battle gear making this impossible.
123. Toyota Motor Philippines Corporation Workers
124. Association (TMPCWA) (Cases Nos 2252 and 2652)
125. The case concerns the continued refusal by Toyota Motor Philippines Corporation (TMPC) to recognize and negotiate with the complainant Toyota Motor Philippines Corporation Workers' Association (TMPCWA) despite the union's certification by the Department of Labor (DOLE) as sole and exclusive bargaining agent; the TMPC moreover dismissed 227 workers and filed criminal charges against other officers and members for having staged strikes in protest at this refusal. The National Labor Relations Commission (NLRC) later on found these dismissals valid but nevertheless required the TMPC to grant separation pay of one month's pay for every year of service. Some 122 workers have not accepted the compensation package. In February 2006, DOLE authorized a new certification election, which took place on 16 February 2006, and led to the certification of the Toyota Motor Philippines Corporation Labor Organization (TMPCLO) - which was allegedly established under the dominance of the employer - as sole and exclusive bargaining agent of all the rank and file employees.
126. At the meeting, the union submitted a written memorandum (on record). In April 2008 the Supreme Court confirmed the dismissal of the union members. Around 100 members of the union are still working at the plant, while 103 dismissed workers are still not accepting severance pay from the company. Several complaints against the continuous violation regarding the certification election by Toyota are pending with the NCMB, but Toyota continues to ignore hearings. From the 26 members against whom a criminal lawsuit was lodged for illegal strike, nine remaining members are still not accepting severance pay and these are the ones for whom the criminal charges are yet to be dropped.
127. The TMPCWA alleged that some Toyota staff members are army officers and another is a consultant for Toyota. Some military members of the 202nd Infantry Unifier Brigade who had a detachment close to the union office inside the factory only left in May 2009 in connection with the acceptance by the Philippine Government of the HLM, but four members have become bodyguards of the top-level management. Around the same time, a community organizer (Ms Ka-Sabeng Arriola), who advocated the removal of the military, was killed.
128. The union considered the invitation of armed policemen for a tour of the factory to be a form of intimidation; further attempts were made to bribe union members with supervisory positions and to resort to bullying tactics if these were refused. The management installed seven CCTV cameras in the production line limiting the activity of the union.
129. Some members of the new union now certified at Toyota also participated in the TMPCWA, but the new union as such was not interested in developing a relationship with the TMPCWA. The International Metalworkers Federation (IMF) tried to unite the two unions, but the new union did not agree before the second certification election and campaigned against TMPCWA during the first certification. They have negotiated a collective agreement, and there is now a moratorium on collective bargaining.
130. The TMPCWA recalled a long history of attempting to set up a union at Toyota going back to 1990 and which met with systematic obstacles from the management culminating in a Supreme Court judgement broadly defining supervisory personnel and their exclusion from unions of the rank and file. The workers had persevered in their attempts to form an independent union but were constantly challenged by management and, even when they had finally won the certification election, they were rendered impotent through complex legal appeals which delayed their effective recognition and ended in the holding of a new election prior to the final determination of the substantive issue at hand.
131. The TMPCWA nevertheless expressed willingness to negotiate solutions to the impasse at Toyota, short of full reinstatement. While, in their view, Toyota would not accept the reinstatement of their leaders, the TMPCWA would only consider studying a proposal to reinstate its members if the criminal lawsuits against the leaders were withdrawn.
132. Federation of Free Workers (FFW) - Visayas Council
133. (Case No. 2488)
134. The case concerns the termination of employment of the officers of the University of San Agustin Employees' Union (USAEU-FFW).
135. The union provided a summary of the facts (on record) that are already set out in detail in the background section of the case (see 346th Report of the Committee on Freedom of Association). A new set of union officers was, according to the union, hand-picked by the managers, while DOLE abetted this interference by the university management. Strike paraphernalia marking the strike have gradually been diminished as a result of persistent demolition attempts by the city authorities over a period of four years and nine months. A petition to the President has not provided relief, nor has a petition to the Speaker of the Senate; and neither has a complaint filed with the ombudsperson under the DOJ. Union busting had been going on in other institutions administered by orders of the Catholic Church (e.g. Visayas hospital). To make matters worse, the dismissed union officers have felt the effects of apparent blacklisting when applying for jobs in other teaching institutions. The dismissed union officers felt it was difficult for them to accept alternatives to reinstatement and give in to a decision they felt was profoundly unjust, and would affect other workers in the country. They provided a complete file with what they viewed as evidence of tampering and irregularities in the decisions of the Supreme Court and the NLRC. The final decision in respect of the legality of their dismissals was still pending before the Court of Appeal in CEBU.
136. The Telefunken Semiconductors Employees' Union (TSEU) (Case No. 1914)
137. The case concerns approximately 1,500 leaders and members of the Telefunken Semiconductors Employees' Union (TSEU) who, after being dismissed for their participation in strike action from 14 to 16 September 1995, and failing to obtain their reinstatement, are now trying to obtain the payment of retirement benefits for the period they worked in the enterprise. The CFA had expressed its profound regret at the manifest absence of equity in this case, due to the excessively long period of time over which the issue of reinstatement was pending (five years), the final decision which reversed a series of earlier rulings in favour of the workers, including from the Supreme Court, and the particularly large number of workers dismissed (some 1,500) as well as the denial of these workers' vested rights in terms of pensions. The CFA had urged the Government to intercede with the parties, with a view to reaching without further delay a mutually satisfactory solution for the payment of retirement benefits to the dismissed workers.
138. The union submitted a case brief (on record), which reiterated the facts that have been documented in the many CFA reports over the years. The union stressed it had always recognized reinstating 1,500 workers would be difficult, but had hoped that DOLE could provide a mechanism for negotiating a schedule of reporting with the management. In fact, that was exactly what was done for a first batch of 800 workers. Later, no more meetings were held, and writs of execution by the then Labor Secretary (SOLE) were ignored by the management. The Supreme Court dismissed the company's petition, and issued a final and executory decision to reinstate the remaining employees. Several other orders to have the Secretary and Supreme Court's decisions executed met with defiance from the company. The company's attempts to evade its legal responsibilities by spinning off into three separate companies (Vishay, Automotive and Temic) were met by a Supreme Court resolution stating that the "Company should not be allowed to escape liability for the illegal dismissal of its employees on the basis of unsupported claims of transfer of ownership". Several other motions for reconsideration by the company were denied, ultimately with finality. Exasperated, the union occupied the office of the Secretary of Labor for nearly a month, staging a hunger strike with family members in the area, even spending Christmas in the office. Meanwhile, the union alleges that the company was lobbying the presidential palace to recognize the company as a vital industry for the economy. On 31 December 1998, the military, with tanks and fully armed soldiers forcefully evicted workers and families from the SOLE's office. Unable to have its orders executed, the SOLE then shifted its position, pinning the union down on an incident in which a number of picketing workers had forcefully entered company premises to reinstate themselves. The SOLE declared the strike illegal, but directed payment of back wages and other benefits and grant of financial assistance to the striking workers. The Court of Appeals overturned both of the SOLE's directives.
139. The union expressed the desire to talk about separation and retirement benefits having rendered a significant number of years in the company and in conformity with what was stated in the Company's retirement handbook. Lawyers who have computed the cost of retirement benefits have said that the company cannot pay for everybody, but the union considered that it could not be tasked with making a selection without dividing the union. Out of the 1,500 originally dismissed workers, about 1,000 were not working at all anymore due to age restrictions.
140. The HLM subsequently met with representatives of the current unions of the three spin-off companies of Telefunken. The new union at Vishay/TSPIC had been able to negotiate its own collection bargaining agreements (CBAs) for the last ten years (periods 2000-02 and 2005-09). The Vishay Philippines Union had also negotiated CBAs (periods 1998-99 and 2001-03 and 2006-08).
141. These unions fully supported the cause of the dismissed Telefunken workers. The FFW thought there might still be a trust fund for the retirement plan for each of the dismissed employees and this could assist in finding settlement to the outstanding case.
142. Public Services Labor Independent Confederation (PSLINK) supported by Public Services International (PSI) (Case No. 2546)
143. The case concerns discriminatory acts (attempts to curtail freedom of expression, suspension without pay, work transfers, termination of employment, withholding of financial incentives and filing a libel lawsuit against a trade union leader) against trade union members in retaliation for having participated in anti-corruption proceedings and protests targeting the TESDA.
144. At the meeting, the HLM listened to the testimonies of five directly affected trade union leaders. The testimonies are laid out in a written "case situation brief" (on record). The trade union leaders referred to harassment; increasing fear among former colleagues for being displaced or dismissed, and alienation from these colleagues as a result; stigmatization as troublemakers; deprivation of benefits from collective agreements for causing disharmony; and general lack of protection for whistle-blowers against corruption.
145. One accounting officer had been dismissed for alleged grave misconduct with accessory penalties such as forfeiture of retirement benefits, forfeiture of eligibility and perpetual disqualification from working as a public officer. The Civil Service Commission ruled in July 2009 that the officer was guilty only of simple misconduct with six months suspension without pay and in accordance with this decision, he should have been back at work for some time now. The TESDA Director-General however had appealed the decision and as a result he had been out of work for two and a half years.
146. One senior specialist had been accused of libel for circulating flyers critical of the TESDA Director-General. The regional court hearing the case had tried to reach an amicable settlement in return for dropping the corruption charges against the Director-General. While in early 2009, she had filed a sexual harassment claim against her supervisor, the Director-General sent the case to the Office of the President, while the corruption case she had filed was pending before the presidential anti-graft committee. He had then decided to transfer her, albeit her status as a single parent, to a far-away office in Camanada district, while the person accused of harassment remained at the central office. She hoped that consideration would be given to moving her to a much closer duty station, such as the Rizal provincial training centre, in order to take into consideration her family responsibilities.
147. One senior specialist reported, in addition to the submission, that at some point armed men had started delivering subpoenas, although this normally would be done by mail.
148. In all these cases, decisions had been rendered by the CSC either fully in their favour or determining that simple misconduct had been committed and that they should now be back in their posts. These decisions were systematically appealed and, in the meantime, they were cut off from their livelihoods and forced to develop makeshift arrangement to earn a living which had a devastating impact on their and their families' daily lives. While the presidential anti-graft committee had condemned the TESDA Director-General in relation to the charges of corruption, its decision was reversed by the Executive Secretary.
149. Kilusang Mayo Uno Labor Center (KMU) (Case No. 2528)
150. The case concerns the following allegations: (i) summary killings of 39 trade union leaders, members, union organizers and supporters and informal workers from 2001 to 2006; (ii) nine incidents of abduction and enforced disappearances of trade union leaders, members, union organizers and supporters and informal workers committed by elements of the military and police from January 2001 to June 2006; (iii) harassment, intimidation and grave threats by the military and police forces against trade union leaders, members, union organizers and supporters and informal workers; (iv) militarization of workplaces in strike-bound companies or where a labour dispute exists and where existing unions or unions being organized are considered progressive or militant, by means of establishing military detachments and/or deployment of police and military elements under the pretext of counter-insurgency operations; and (v) arrest and detention of and subsequent filing of criminal charges against trade union leaders, members, union organizers and supporters and informal workers due to their involvement and active participation in legitimate economic and political activities of trade unions and informal workers' associations.
151. The HLM heard additional allegations from trade union leaders and members affiliated to KMU on two separate occasions. These individuals came long distances to testify to the HLM and brought detailed documentation and affidavits to support their cases. The fear they had for their safety was evident and they had requested to meet in a safe haven. The allegations broadly fell into two categories: further allegations of murder, abduction, harassment, arrest and intimidation; and allegations of violation of the right to organize and to bargain collectively by employers, especially in economic zones. The KMU formally submitted this information as new allegations before the CFA.
152. Meeting at TESDA
153. The following officials attended the meeting:
154. - Ms Milagros Dawa-Hernandez - Deputy Director-General for Sectoral TVET (TESDA)
155. - Ms Marissa G. Legaspi - Executive Director, Planning Office
156. - Ms Pilar G. de Leon - Executive Director, Office of the Chief of Services for Administration (OCSA)
157. - Ms Rebecca C. Chato - Director, Bureau Labour Relations, DOLE
158. - Ms Rosalinda Baldoz - Undersecretary, DOLE
159. - Ms Imelda T. Ong - Attorney Legal Unit
160. The meeting was chaired by the Deputy Director-General. Ms Pilar explained that the TESDA Association of Concerned Employees (ACE) (affiliated with TUCP) won a certification election in 2001, which was contested by the "Annie Geron Group". The SAMAKA TESDA union (of which Annie Geron is the President) is affiliated to PSLINK, the federation of which Annie Geron is General Secretary.
161. Ms Pilar explained further that TESDA was involved in disputes with Annie Geron and Rafael Saus. In May 2008, the CSC upheld the decision of the Director-General to drop Annie Geron from the rolls (because of absence without leave), and that decision was further upheld by the Court of Appeals, and the subsequent appeal dismissed by the Supreme Court on technical grounds.
162. Rafael Saus and two others did not comply with a reassignment as it was allegedly not in the interest of the service. After an investigation and disciplinary procedure, DOLE recommended termination in May 2008, and in October 2008 the Director-General dismissed the three for grave misconduct. The three filed an appeal against the dismissal order. The CSC ruled in favour of simple misconduct, with a disciplinary suspension of six-month without pay. An appeal against the six months suspensions is still pending with the CSC, but she wondered whether the CSC decision would take precedent over the Supreme Court's earlier confirmation of the termination. If the CSC confirms the six-month suspensions, then TESDA would need to resolve the question of reinstatement. Ms Dawa-Hernandez pointed out that TESDA provided the best benefits, but that when it came to due process its hands were tied, and it needed to follow a body of rules.
163. Turning to the dismissal of Ramon Geron (who was dismissed for lack of eligibility for his executive position as Provincial Director), eligibility is a requirement of executive level appointment, and TESDA cannot redefine the position of a person who is a non-presidential appointment. TESDA has to follow the CSC and the executive career service commission, who has to decide on whether he is qualified for executive career service. Currently, TESDA considers Mr Geron to be on extended vacation with his salary arrears already computed should the CSC determine that he is indeed qualified and should be reinstated. When Ramon Geron was terminated, he actually tendered his resignation and applied for retirement benefits. While reinstatement occurs automatically in the private sector following a relevant decision and pending a final determination on appeal, in the public sector it needs to be ordered. The Commission on Audit will not allow TESDA to reinstate Mr Ramon while the motion for reconsideration is still pending with the CSC. It was remarked that it may be worthwhile pursuing the matter of pending reinstatement for civil servants as the rules affect more than 7,000 executive career officials.
164. Meeting with the Philippine Economic Zone Authority (PEZA) and the Department of Trade and Industry (DTI)
165. The following persons attended the meeting:
166. - Ms Lilia B. De Lima, (PEZA) - Director-General
167. - Attorney Norma Cajulis - IR specialist, PEZA
168. - Ms Rachel Angeles - IR specialist, PEZA
169. - Mr Justo Porfirio ll. Yusingco - Deputy Director General for Finance, PEZA
170. - Attorney Ann Claire C. Cabochan - Director
171. - Maria Salome C. Rebosura - Chief, Bilateral Relations Division, DTI
172. - Attorney Antonio Ferrer
173. - Mr Ronald Chua
174. - Ms Carina Vertucio
175. Ms De Lima introduced PEZA with a PowerPoint presentation (on record). She stressed that every year, 1 million people reach working age in the Philippines, hence the Special Economic Zone Act of 1995 was adopted to pursue investment promotion, employment creation and export generation. Some 86 per cent of manufacturing exports come from inside the economic zones. She described the various types of "PEZA ecozones", highlighting the two non-negotiable areas in these ecozones, that is, the rights of Filipino workers and the protection of the environment. Republic Act (RA) 7916 provided very clearly that the Labor Code governed the relationship between labour and management in the registered enterprises in the ecozones, and a MOU with DOLE stipulated that DOLE remained responsible for labour dispute settlement within the zones. Locators and their contractors had to give a specific undertaking not to use child labour. There were 71 unions in 63 companies in 22 of the ecozones. Ms De Lima clarified in the discussion that no unions existed as yet in the IT sector - the 71 unions in 63 companies related to a total of 2,000 companies. Unions represented a total number of employees 608,387 (2.58 per cent). PEZA conducted annual company inspections in the ecozones to proactively monitor the health and safety of the workers. It had one to five staff members in each of the zones, the other inspections were carried out by private industrial experts. In the period 2004-09, there had been 195 labour complaints, 160 preventive mediation cases, 85 notices of strike, and seven actual strikes. In the same period, it carried out labour seminars covering labour standards, labour relations, gender and development, and livelihood programmes. During the crisis, electronic firms had adopted schemes to keep workers such as reduction of pay while not on work and rotational employment. In some zones, PEZA had set up One Stop Workers' Assistance Centers (POSWACs). PEZA monitored workplace relations enhancement best practices that promotes social dialogue mechanisms such as labour-management councils/committees; employees' round tables; and town hall meetings. It organized labour seminars with PEZA personnel on issues such as alternative dispute resolution (with NLRC/DOLE); labour relations perspectives (with DOLE); and "start your business/grow your business" training of trainers (with the ILO). Finally, it had organized a labour seminar for PEZA police and Jantro guards (with the ILO and DOLE) on C. 87, the guidelines for the conduct of PNP, private security guards and company guard forces during strikes, lockouts and labour disputes, and the basics of conflict management/conciliation-mediation.
176. In reply to some questions concerning union organization, Ms De Lima indicated that unions were both organized independently within zones and following campaigns from union organizers outside of the zones which had free access. As regards the serious allegations of militarization, Ms De Lima pointed out that the PNP was present in the barangays to maintain peace and order, as distinguished from the AFP, which was responsible for the security of the country. Sometimes the assistance of the PNP was sought, not the military. There was no military presence in the ecozones. There were 28 collective enterprise agreements in place in the zones. Wages and working conditions inside the zones were generally higher and better than those outside the zones.
177. University of San Augustin
178. Mr Padilla, whose law firm represents the University of San Agustin was joined later in the discussion by his father, a partner in the firm.
179. In the bargaining deadlock, the University did not want the case to be mediated by the NCMB since the CBA provided for grievance machinery and a no-strike no-lockout clause. Unfortunately, the NCMB did not act on the motion to consider the case irreceivable and refer the parties to voluntary arbitration so as to allow the parties to choose the arbitrator. So when the unions could lawfully strike and filed a notice of strike, the university was forced to request assumption of jurisdiction. The Secretary of Labor tends to favour labour in such cases and accepted the case. The University would have preferred voluntary arbitration. In other cases involving universities, the NCMB did refer the parties to voluntary arbitration, and these cases were adjudicated without much controversy.
180. As regards the current status of the case, he indicated that the union had selected a new set of officers, and the University was prepared to sit down with the new union to resolve economic issues. The complainants have questioned the new officers, but they have been certified by DOLE. When the complainants filed for illegal dismissal with the NLRC, they attached the CFA recommendations, and the NLRC ruled that five of the ten were illegally dismissed. On appeal, the decision was reversed because of the illegality of the strike, rendering the dismissals no longer illegal. The Court of Appeals upheld this decision, as did the Supreme Court. The jurisprudence is such that if you have agreed to voluntary arbitration and then strike, that is illegal. While the University was prepared to discuss the matter when the case was pending, the outcome is now clear. The NCMB was reprimanded by the Supreme Court for not having given a return-to-work order and not having referred the parties to voluntary arbitration. He alleged that in cases of assumption of jurisdiction, there is often a kickback given to the Secretary of Labor, leading to bias in the decision. In addition, the complainants asked for an enormous amount of emotional compensation (that is in the order of 7 million pesos (PHP) in the Philippines). He added that it was a misrepresentation that five were dismissed for reasons of anti-union discrimination and stated that the dismissal occurred due to their insufficient qualifications. They had discussed this with the FFW, but that organization was now split.
181. Visit to Laguna Technopark in Santa Rosa
182. The following persons attended a general briefing on the Technopark:
183. - Honourable Arlene Nazareno, Mayor - Santa Rosa City
184. - Colonel Aurelio B. Baladad Inf (GSC) PA, 202nd Infantry (Unifier) Brigade, 2nd Infantry (Jungle Fighter) Division - DA, Brgy Antipolo, Rizal, Laguna
185. - Ms Linda Baldoz - DOLE
186. - Ms Norma Cajulis - PEZA
187. - Ms Rachel Angeles - PEZA
188. - Mr Justo Porfirio Yusingco - PEZA
189. - Superintendent Mr Labador for PNP
190. - Ms Rona Abien - representative of Laguna Technopark
191. - Mr Antonio Ferrer
192. Laguna Technopark was developed in 1989, covering an area of 387 hectares. It is declared a PEZA zone. Currently, it counts 134 locators, including companies catering to the local market. It is one of the biggest parks in the country.
193. Colonel Baladad presented the role of the AFP under the title "Community organizing and development team" (PowerPoint on record). He stressed that the AFP followed international humanitarian law and there are no cases of human rights violations. While the Brigade had been in the barangay from 16 January to 23 December 2008, it was no longer present, because it had done its job in giving the community villages a head start, and had now moved on to other areas needing its help. The mayor had invited the Brigade to stay in the multi-purpose hall, which is located 1,500 metres away from the Technopark and 2,000 metres away from Toyota, so the Brigade did not reside inside the zone. The Brigade carries out community development programmes. In order to carry out its duties of safeguarding security of the community, the AFP need the cooperation of civil society and the private sector. The Brigade promotes peace and is moving away from conflict management in favour of cooperation management.
194. He further explained that the Brigade implemented livelihood programmes in coordination with the mayor for 200 mother beneficiaries, and a feeding programme for over more than six months in cooperation with the Church. Cleanliness drives had been organized to remove dengue fever. An information campaign had strengthened education and awareness on health issues with the local population and the out-of-school youth. Physical fitness had been promoted for the local population. A neighbourhood watch had been organized at barangay Tanod. The Brigade had received a certificate of recognition, village residents had issued a resolution of support, and many individual letters of support had been sent.
195. Colonel Baladad summed up his view on the issues and facts:
196. 1. There was no complaint in the NLRC about anti-union harassment, and there was no such harassment. They were carrying out a military responsibility programme, on invitation.
197. 2. The AFP did not put up a detachment, it deployed community development.
198. 3. It is true that military officers went around asking for names in January 2008, because the AFP cannot undertake development without polling the community. It merely concerned part of an initial survey of support.
199. 4. It is not true that the Brigade can freely enter the premises of Toyota. The Brigade undertakes social and economic work in the community at a distance of 2 kilometres from the company. No ruthless force was ever used by the military.
200. In the course of discussion, the Colonel clarified that he had taken courses from the Commission of Human Rights, and had been sent to undergo training on international humanitarian law in Geneva for two weeks. He thought that the AFP had a good enough understanding of human rights and trade union rights, although more training courses in rural areas could be useful. The AFP had reached out to unions to explain the role of the army in the past. A few years ago, the AFP had tried to explain that it does not only fight armed groups, but also poverty and disease. He clarified that the ecozones had their own security, and the AFP could not enter at will, but needed to seek permission first. On the relationship with the PNP, he explained that the PNP was primarily responsible for urban areas and for security in rural areas. While there was a police box just outside Laguna Technopark, there was not an army detachment.
201. The Superintendent explained that PNP's function was to maintain peace and order. In the event of big rallies, the PNP would require its contingents to protect those taking part in rallies as well as the management. The PNP did entertain complaints from employees and management. There were not often strikes in the Technopark, but sometimes national rallies from other areas would pass through Santa Rosa. The PNP usually kept a distance of around 100 metres from the rally venue. Only very rarely had there been cases of necessary intervention or arrest, in fact none in recent years. Human rights training was offered in the mandatory curriculum. The PNP civil disturbance units were always given instructions right before deployment. The PNP was open to training specifically on industrial relations.
202. The Mayor concluded by stressing that one reason why investors had come and turned Laguna into the Detroit of the Philippines was that Laguna Technopark was peaceful and had no strikes. She expressed her happiness with the fact that the AFP came upon invitation. The population of the city had increased three times because of employment. Companies paid special incentives and practised their corporate social responsibility. The Labor Code was applied, and ten out of 90 manufacturing companies were unionized. Union organizers were not hampered in their activities.
203. Meeting with the management of the Toyota Motor Company of the Philippines at Laguna Technopark
204. The following persons represented the management at the meeting:
205. - Mr David Go - Vice-President
206. - Mr Aligada
207. - Mr Rommel T. Guttierez - Vice-President for corporate affairs
208. - Mr Lito
209. - Mr Leody
210. - Mr Joseph Sobrevega
211. - Ms Cristina Arevalo - Human Resources Department
212. Mr Lito made a PowerPoint presentation setting out the facts already documented in the CFA case (on record). In the discussion, Mr Lito explained that the police station nearby serves the community and not Toyota. There is no back entrance. In fact, the community is surrounding the ecozone, and is even not entirely fenced as settlers come and collect wood. Security guards carrying guns may have been mistaken for the military. The only time when the AFP had come in was when President Arroyo held a cabinet meeting at the premises, and needed enough space for a helicopter to land. About 100 security staff had accompanied the President, and those in charge of logistics were offered a plant tour. The PNP had also been to the plant as it is Toyota's single biggest customer. Toyota agreed on a meeting at the premises to launch the negotiations about a deal involving the purchase of more than 1,000 vehicles and training. Police technicians were trained by Toyota factories also elsewhere in Visayas, Mindanao, and Luzon. They were not disarmed on that occasion, but normally arms are kept at the front gate. As the management understood that workers could find that intimidating, the staff were told at a meeting that armed police could come in, but only for a tour of the factory. President Arroyo visited on two occasions, in 2002 and 2008. Beyond these instances, there have never been any requests for the PNP to come in.
213. Toyota management stated that they had no knowledge of a leaflet that TMPCWA members stated had been left behind by the management in the locker room to discredit the union.
214. Ms Arevalo stressed that fairness towards all employees was the paradigm. Even TCMPWA members who had been unkind in the past had been given promotion opportunities. Issues of concern to workers continue to be raised according to "party lines" as was the case with a recent workplace survey. A team leader handled the quality control amongst a team of five workers. Team leaders could be promoted to group leaders, and then to foreman. TCMPWA members had been promoted to team leader. Collective negotiations were now ongoing with both unions for the period up to 2011. Since 2001, the supervisory union had wanted to synchronize increases with previous annual increases, so these started in July. Room for negotiations is tight. The business environment is to undergo significant change next year as a result of a new Free Trade Agreement (FTA) next year. Other brands produce more volume, and the auto industry is hit by the lack of a sizeable domestic market. The FTA will only be beneficial if Toyota remains competitive, as in the past car assembly companies left when the barriers to trade were lowered. The TMPC provided financial assistance of a humanitarian nature to 58 per cent of 233 dismissed workers. The TMPCLO requested the TMPC to do this as they still count many friends among the dismissed workers.
215. The TMPC noted that the severance pay ordered by the NLRC was overturned by the Supreme Court. The TMPC would not be prepared to rehire any of the dismissed workers under any circumstances, not the leaders and not the members. First, the tension ran very high when the TMPCWA barricaded the gates, so these ties cannot be repaired. Secondly, safety is probably the single most important factor in the production of cars. The TMPC management stated that the TMPCWA had engaged in sabotage on several occasions, and the TMPC was forced to terminate the worker concerned. The TMPC could not afford to take chances with the safety of its cars. The TMPC did take back some "former" members of the TMPCWA, but only those that did not engage in repeated walkouts. There was no retaliation against those rehired. The TMPC did hold disciplinary hearings for each of the 233 dismissed, because that was their right, and the TMPC had no qualms implementing the manual. The dismissed workers claimed they had the right to walk out, not the right to strike. They were protesting the decision of the BLR to conduct a check of the challenged voters. The dismissal was based on documents outlining disciplinary action and a copy of the handbook on which disciplinary action was based. New staff is trained on the manual. TMPC thought it could be useful to have training on the principles of freedom of association and collective bargaining so as to show commitment, and ensure that everyone has the same understanding of the law.
216. The HLM was given a tour of the production line, and had the opportunity to speak to several members of the TMPCWA working in the plant who expressed their gratitude for the attention given to their cause. One TMPCWA member complained that the union was not even recognized for the purpose of representing its members in individual grievance proceedings as in the case of the recent dismissal of 76 workers of which seven were TMPCWA members (unrelated to union activity). The management feared complaints from the TMPCLO if it were seen to be negotiating with the TMPCWA. He stressed that the AFP had a firing range near the factory. He also suspected that leaflets denouncing the TMPCWA had been produced by the management and left in the locker room.
217. One TMPCWA member of rank four with 16 years of service claimed anti-union discrimination as he had not been promoted, not even after taking the required examination.
218. In response to the question of promotions from rank four to rank five, the TMPC management mentioned that TMPCWA probably forced members to reject promotions, as promoted members would have to leave the union and join the supervisory union. The fear of dismissal amongst some workers is inspired by the LIFO rule (last in, first out) which the union actually requires when workers have to be terminated. The collective agreement has a union security clause for the majority union, except for a 60 days "freedom period" before renegotiations start. The TMPC management insisted on protecting the freedom of choice to join a minority union.
219. Meeting with the Toyota Motor Philippines Corporation Labor Organization (TMPCLO) and the Toyota Motor Philippines Corporation Supervisory Union (TMPCSU)
220. Main speakers at the meeting were Angel Dimalanta (President of the TMPCSU) and Francisco Mero (Automobile Industry Workers Alliance (AIWA) which is the federation to which the TMPC unions as well as enterprise unions of other car manufacturers are affiliated). (Note 1).
221. Mr Dimalanta gave a PowerPoint presentation (on record) outlining the history of the TMPCSU. He was the President of the first union at the TMPC, the Toyota Motor Philippines Corporation Labor Union (TMPCLU) founded in 1992. The TMPCLU was never recognized because it included supervisory staff, and was then overtaken by the TMPCWA, which ultimately was also denied certification as exclusive collective bargaining agent. It was this latter incident that led to the walkout and dismissal of TMPCWA leaders and members and so laid the basis of the CFA complaint. He explained that in 1998, the loyal and determined members of the defunct TMPCLU pledged to organize another labour union in order to continue the struggle until it could establish a union in the TMP. It was agreed upon that this group formed a supervisory union and later would assist the rank and file workers that are not within the bargaining unit. Since these team members are mostly level five and above, the immediate concern was to silently work to reorganize the union. The TMPCSU was formed in April 1999, won a certification election in December 2000, and concluded its first collective agreement in September 2001. The current collective agreement runs up to 2011 for political provisions, and 2009 for economic provisions.
222. The TMPCLO followed up with a remarkably detailed PowerPoint presentation (on record) of its history and structure and of the benefits it had negotiated with the TMPC as compared to the benefits negotiated in other car manufacturing plants. Mr Mero commented that Mitsubishi actually offered the best benefits, because it split off from Chrysler in 1965, and the union had existed ever since. At Mitsubishi, most car and other allowances had already been converted into wages. Toyota had the highest production volume in Thailand, while the lowest in the Philippines.
223. In the discussion, Mr Angel Dilamante pointed to the problem of the law fractioning off the supervisory employee category without properly defining the category. This was used by the management to cut the trade union organizers off from their legitimate base, but unfortunately this line of argument had never been followed by the Supreme Court. The unions were also particularly concerned by the Supreme Court's decision in the Dusit Nikko Hotel case. He felt that putting the management in a bad light was not the same as striking, but merely an expression of dissatisfaction.
224. With the introduction of economic zones, organizing workers had become more difficult. PEZA guards have the authority to escort trade union organizers out because the land is only leased by the Government while the property stays private (in the case of Laguna Technopark property of the Ayala family), and the rule provides that on private land no strike can take place.
225. With respect to the TMPCWA dismissals, Mr Dimalanta explained that only the rank and file got dismissed, because they erroneously walked off having called to a hearing and picketed for three days without filing leave, while all the union officers were on official leave. The management had earlier tried to create a union, but failed. The TMPCSU (the union of supervisors) undertook reconciliation efforts with the TMPCWA from 2002-05, but to no avail. The Labor Code provides that you can register a trade union with 20 per cent of the workforce, so while there can be five unions, only one is to be recognized for collective bargaining purposes. Unions want control over the bargaining unit, and so trade union rivalry occurs. He also considered that there were many cases where trade union leaders were actually killed by other unions.
226. Meeting at Central Park Hotel in Luisita Park
227. (Tarlac City)
228. - Honourable Genaro Mendoza - Mayor, Tarlac City
229. - PNP - Chief of Police of Tarlac City and three police superintendents
230. - AFP - Brigadier-General, Mr Gominto Pirino
231. - PEZA staff
232. The police authorities provided an overview of the peace and order situation, and their programmes to improve the situation with the cooperation of the community, such as a night watch programme. They pointed out that the nearest police substation was 300 metres away from Luisita Park, although it was considered a strategic area. Police forces were not authorized to enter the park without permission from the PEZA.
233. The representative of the AFP then briefed the meeting on its approach to industrial peace. He explained that the AFP would not tolerate harassment from either the union or the management, as mutual benefits are dependent on harmonious labour relations. The AFP only handled the insurgency, and did not carry out functions related to labour relations. Law enforcement authorities would step in only when all peaceful means of resolving disputes were exhausted. It had happened in November 2006 that the aggression at a demonstration had got out of hand and that a few protesters had thrown stones at the police, and that the police had defended themselves. If a labour dispute led to unrest, then the police would come in to ensure nobody got hurt. Rules of engagement had been developed for the police forces to deal with acts of violence at rallies. Police forces could not just intervene at will, but had to be deputized by DOLE for labour disputes, unless violence or a specific crime was involved. Last year, there were two cases of such deputization (for example, in Blooming Apparel San Rafael, where tyres were being burned and the police had to ensure that violence resulting from closure of the company did not spread outside the company).
234. Concerning the situation at the Hacienda Luisita, the AFP explained that the Hacienda covered 11 barangays, where mostly peasants and workers lived. The AFP was facing an insurgency, and the insurgency focused on workers for recruitment. In order to insulate workers, the AFP was implementing the integrated area security and public safety system and the integrated territorial defence system, teaching people how to protect themselves from false awareness campaigns. One of the system measures involved the military to conduct humanitarian activities, as well as public information and awareness campaigns in cooperation with civil authorities. There are several control measures to ensure that the staff conducts public awareness-raising programmes about the deception of the communist programme in conformity with international humanitarian law and rules of engagement in the area. The AFP representative had been surprised by the CFA case and invited training on C. 87, which he admitted to know far too little about. He further explained that the AFP had a crowd dispersal unit, which the police, when deputized by DOLE, would call upon if it could not cope. Persons who felt intimidated could turn to the police, one of the regional offices of the Commission on Human Rights or the police law enforcement board, which administratively came within the remit of the local government. In many cases, the complainants went to local politicians, while looking for endorsement by the police.
235. The DOLE regional office (Mr Nathaniel V. Lacambra, Regional Director) explained that, in 2008, the AFP received training at its request on issues such labour rights and obligations; the right to organize; election certification; and conduct of armed forced strikes. The regional office had developed a complete module, but now needed to make training available to the police also. DOLE is spread rather thinly in the regions, while the PNP and AFP are on the ground everywhere, and could play a role in improving occupational safety and health, for example.
236. Many disputes at Hacienda Luisita do get resolved with meetings, such as a recent incident in which the management requested free ingress and egress. The "case" of Hacienda Luisita (Note 2) is not considered a labour case anymore, but an agrarian dispute. The issues between the United Luisita Workers Union and the employer had already been settled.
237. The case of International Wiring Systems had become problematic since the renegotiation of the collective agreement. The union could have come to the regional DOLE, but apparently preferred to go to the ILO.
238. Unions are present in five companies in Luisita Park. In rural areas, PHP1.500 million had been earmarked for the PNP and AFP for livelihood programmes to keep people out of communist hands. DOLE entertained complaints in verbal and written form relating to labour standards and labour issues only. Allegations of crime were referred to the police.
239. Existing training modules for labour education with trade union officers and the AFP included labour laws, human relations, and productivity with trade union officers. The HLM inquired if maybe the union had been linked to the insurgency, with stigmatization and distrust of the Government as a result. In that regard, DOLE noted that the union had been invited to the regional tripartite industrial peace council in the region, but they did not feel that the union was truly trying to resolve its issues through cooperative engagement.
240. The Mayor admitted that he had actually received a complaint from the International Wiring Systems Workers Union (IWSWU). He had not yet had the opportunity to look into it, but committed to doing so.
241. Meeting with the management of International Wiring Systems Philippines Corporation (IWSPC) and the International Wiring Systems Workers Union (IWSWU)
242. On 29 September 2008, the IWSWU lodged a complaint containing allegations of infringement of trade union rights in the Philippines (Case No. 2669). More specifically, the case concerns allegations of military threat and harassment against IWSWU officers and their families; interference by the AFP in trade union affairs by dissuading trade union members to engage in collective bargaining; and stigmatization of IWSWU members and their families to the detriment of their safety and security. The case has not yet been examined by the Committee on Freedom of Association.
243. The President of the Union (Mr Dexter P. Datu) explained that out of 3,034 employees, the union had 2,820 members. It had a closed-shop agreement, but 1,800 contractual workers at the end of 2008 - some of them regular workers rehired as contract workers did not have status to join the union.
244. The President of the Union, presented a written submission (on record) containing further allegations of harassment by the military, in particular the systematic calling up of union members to come to assemblies where the military discusses union organizing.
245. Mr Richard D. Sosa (Chairperson of the Board of IWSWU) explained that, in December 2008, he had been harassed by repeated visits at his home by military in plain clothes presenting themselves as national statisticians. He had recognized them because they had been introduced to him as such at an army forum. He had also received death threats by letter. The military officers visited without DOLE. The matter was raised with DOLE, but DOLE did not react, nor did the management.
246. Mr Michael Ogali (member of the board of IWSWU) explained that he had repeatedly been visited at his home by military officers to insist that he attend a barangay awareness forum. Each barangay has these forums for workers of the union, and while most attended, some did not go, and some could not be found because they live in 20 different houses to escape being tracked down. Although the management of the company does not force workers to attend the forums, he believed it cooperated with the military by providing names and addresses. Mr Ogali stated that the military had accused him of being an NPA member, at one time allegedly because his parents were pastors. His uncle had also been subject to barangay awareness forums. The "group of Dexter Datu" had received warnings, because Dexter Datu is allegedly a member of the CPP. The link was established following his involvement earlier in the "Luisita case".
247. Ms Noel Flores also reported that the military had visited her at home to invite her to the detachment. At the meeting, the military had advised her not to raise unreasonable demands in the course of upcoming collective negotiations to prevent the company from going under. She had responded that this was peacetime, and none of the Government's business.
248. Mr Rodel Licup (Assistant Vice-President, External Affairs) related another event where he was asked to explain to the military the link between IWSWU and the NPA - Tarlac City is the birthplace of Bucanos, the founder of the NPA. He was warned that the CPP/NPA attempts to infiltrate trade unions. Mr Licup had denied the accusation, assuring the officers that he did not tell workers to join the CPP, but to join the ranks of workers.
249. The union wondered if the management had a role in these intimidating visits. The military had apparently access to personnel files and schedules of the workers. The union had confronted the management following the military's indication that it co-organized the awareness forums with the management; but the management had assured the union that it had nothing to do with it. The union also wondered why the city mayor never reacted to its complaint. The mayor had said that he would discuss the matter with the Northern Luzon Command Office.
250. The IWSPC management had once lodged impeachment proceedings against the union for trying to stop the production. It had tried to undermine the leadership by not recognizing elected union officers, and questioning the independence of the union because of its affiliation to the Federation of Democratic Trade Unions. The IWSWU was now not affiliated to any national federation. The current collective negotiations were difficult, as the management was not willing to give in to union demands citing a loss of profits as a result of the global financial crisis. The union had noticed, however, that the company was expanding, and production was doubling, so that the company appeared to be doing well. Nevertheless, the company proposed a moratorium on benefits for two years.
251. If the union does not agree, it could file for conciliation by DOLE, but it has little confidence in DOLE, as decisions tend to go the company's way. Of the many cases the union filed, it managed to win only one. Last September, DOLE had called a tripartite meeting at which the military had showed a video about the Hacienda Luisita strike. IWSPC was represented by its Vice-Chairperson. The theme of the meeting was trade union supervision in Luzon by the military. They considered that the management's tacit acquiescence to this theme meant that it was associated with the military's actions in this regard.
252. Mr Datu welcomed training to explain in particular borderline issues between the legitimate trade union activities and purely political activities that have a bearing on security. He stressed, however, that the union also needed a recommendation that would prevent similar situations of harassment and improper conduct in the future.
253. Meeting with the IWSPC management at the factory premises in Luisita Park
254. The IWSPC was represented at the meeting by the President (Mr Takashi Takagaki), the Vice-President of Production (Mr Eric V. Mercado) and two staff members.
255. Mr Mercado delivered a PowerPoint presentation to introduce the company (on record).
256. In the course of the discussion, Mr Mercado mentioned that the company was re hiring contract workers that had been retrenched earlier, as the production volume had recovered after a significant dip in the first half of the year. The IWSPC expected to post a net annual loss at the end of the year. Among the regular workers, only those requesting to leave had been retrenched.
257. Mr Mercado explained the company's approach to contract workers (that is project-based and fixed-term workers). The business environment had changed with a bigger number of specific projects of around three months, and a higher fluctuation of volume. Contract workers were, therefore, a necessity. On the other hand, a bigger number of contract workers involved more investment in training, and given the average project duration, the project was sometimes shorter than the training. Workers were updated every week on business developments.
258. He underlined that four collective agreements had been concluded of three years each, and that a good relationship was maintained with changing union leaderships. He expected that the current collective negotiations would be concluded in October. The company and the union had a closed-shop agreement.
259. Mr Mercado confirmed that the IWSWU had raised concerns about insecurity, but that the company had denied any involvement. There were 52 manufacturing companies in the neighbourhood. As far as the IWSPC was concerned, all data such as personal files and schedules were confidential, and Mr Mercado assured that the information did not come from the management. Mr Takagaki fully supported this statement and provided the HLM with a formal letter indicating that his management had never provided any such information to the military.
260. Bargaining deadlocks were submitted to the NCMB in the past, but after the cooling-off period the two parties had been able to settle. He confirmed that DOLE's regional office felt that the IWSWU did not turn to them, but he thought that this might be the result of meetings DOLE had organized with the military.
261. He recalled that there had been divisions among the workers in the past, and at one point one union had filed a lawsuit, but that was the past. The management found the dialogue with a few representatives much easier than negotiating with workers individually and was committed to cooperatively engaging with the union in the upcoming collective bargaining.
262. The company was very open and supportive to capacity building and training.
263. Meeting with the Bureau of Labor Relations (BLR), the National Labor Relations Commission (NLRC), and the National Conciliation and Mediation Board (NCMB) on the morning of 28 September
264. The participants at the meeting included:
265. - DOLE - Usec Baldoz and Usec Padilla
266. - BLR - Director Chato
267. - NCMB - Executive Director Ubaldo
268. - NLRC - Commissioner Velasco, Director Ricardo Gloria, and Attorney Herminio Banico
269. The NLRC submitted a performance report for 2008 and some figures (on record).
270. Background to the labour dispute settlement system
271. The National Labor Relations Commission (NLRC) is a tripartite labour court. It is attached to the DOLE for policy coordination. The Chairperson is assisted by commissioners who sit in seven divisions. Through the labour arbiters in the regional branches, headed by executive labour arbiters, the NLRC hears and decides cases involving unfair labour practices; termination disputes; claims for reinstatement on cases involving wages, rates of pay, hours of work and other terms and conditions of employment; claims arising from any violation of article 264 on prohibited acts, including questions involving the legality of strikes and lockouts; all other claims arising from employer-employee relations; and certified cases by the Secretary of Labor.
272. The NLRC resolves disputes through compulsory arbitration. Decisions of labour arbiters may be appealed to the Commission whose decision may be brought on certiorari to the Court of Appeals and to the Supreme Court.
273. The National Conciliation and Mediation Board (NCMB) is an agency attached to the DOLE, both for administrative supervision and policy coordination. Through its regional branches, headed by a director and staffed with conciliator-mediators, the NCMB:
274. - settles labour disputes, particularly those arising from notices of strikes on grounds of unfair labour practice and bargaining deadlocks, through voluntary modes such as preventive mediation and conciliation mediation;
275. - promotes plant-level dispute settlement through grievance settlement and labour-management cooperation programmes;
276. - promotes the use of voluntary arbitration in the settlement and resolution of labour disputes and other labour cases.
277. The NCMB is assisted by the Tripartite Voluntary Arbitration Advisory Council (TVAAC) in the formulation of policies and programs on voluntary arbitration.
278. Under article 263(g) of the Labour Code, labour disputes involving industries indispensable to the national interest may be the subject of assumption of jurisdiction by the Office of the SOLE which either decides the case or certifies it to the National Labor Relations Commission. The decisions of the SOLE and the NLRC on national interest cases may be appealed on certiorari to the Court of Appeals and to the Supreme Court.
279. At the briefing for Government officials on 22 September, Undersecretary Baldoz (DOLE) had already expressed the government's position that the power of the SOLE under article 263(g) has been used sparingly and judiciously. Only 4 per cent of the cases involving disputes that were likely to materialize into actual strikes had been the subject of an assumption of jurisdiction. Moreover, the exercise of this power was always subject to judicial review. For the past 35 years, the more effective and wider use of voluntary modes of dispute settlement with compulsory arbitration and the use of strikes as last resort had contributed to the growing climate of stability and maturity in the labour-management relations in the country.
280. The NLRC explained that it received 33,000 cases per year at the regional level branches, of which 43 per cent are settled. It was able to reduce its workload by more than 3,000 cases, applying also other means such as task forcing; establishing minimum levels of performance; strictness in monitoring performance, withholding allowances after third warning. Its number of staff had roughly remained the same. Also at the level of the Commission, the workload had been reduced. The NLRC was trying hard to resolve cases at the first level within nine months, achieving a success rate of 95 per cent, while 85 per cent of the cases could be settled within eight months. On the execution side, while decisions at the level of the Commission are final, cases may be appealed on certiorari to the Court of Appeals and on to the Supreme Court. In December 2007, the Supreme Court amended the rules, extending "judicial courtesy" by ruling that lower decisions may be executed while certiorari is pending. In the course of the nine months needed to settle a case, conciliation took up to three to four months, and the NLRC provided five months for execution. Failure of execution was mostly because a company closed or had no assets, or because respondents could not be located. Reinstatement decisions were also executory pending appeal, at least if the employer was still present. The NLRC felt that closure of enterprises did not present a systematic problem, although there had been some isolated cases. In some cases, the NLRC had been able to pierce the veil of corporate identity and treat a re-establishment as a continuation of the first company. The NLRC hoped to continue seminars for legal arbiters at the first level. There had been only a few cases of adjudication.
281. The NCMB stated that there had been a total of 869 cases of assumption of jurisdiction, representing 2.21 per cent out of 9,320 non-strike cases handled. Certification to the NLRC had taken place in 582 cases or 1.9 per cent of the total. The Secretary of Labor and Employment (SOLE) determined the jurisdiction. Consideration was being given to amending the regulations, so that when a petition for assumption of jurisdiction was filed with the SOLE, a mandatory conference of the parties would have to be called. No thought had been given to defining "national interest" more precisely, nor to determining guidelines in that regard.
282. The NCMB did not have data on where petitions for assumption of jurisdiction mostly came from. The procedure started with a notice of strike, a meeting, and then a strike vote. The period after that was not restricted, as long as parties were willing to sit down. The HLM recommended clarifying the rules on return-to-work orders and the period within which such orders had to be complied with. In the case of the University of San Agustin, there had been nine hours between the start of the strike and the posting of the order, then 0 hours to actually return. In other words, they were expected to return immediately to work. If in most cases the employer is asking for assumption of jurisdiction, then the right to strike is very quickly taken away. While the NCMB may be continuing efforts to reconcile in the meantime, it was likely to end up having to arbitrate anyway. The NCMB did not have statistics with respect to the average time that expires between a notice of strike and a petition for assumption of jurisdiction.
283. Meeting at the Department of Justice
284. The meeting took place on the 112th anniversary of the Office of the Secretary of Justice. The main representatives at the meeting included:
285. - Department of Justice (DOJ) - Undersecretary Blancaflor and an Assistant Chief State Prosecutor
286. - Department of National Defense (DND) - Undersecretary Valenzuela
287. - AFP - Colonel Galvez, Lieutenant Cololonel Loy and Major Salgado
288. - PNP - General Bacalzo, General Rapal and Major Libay
289. The PNP presented a PowerPoint briefing on 66 labour-related cases filed with the PNP in the period 2001-09 (on record).
290. The Undersecretary stressed that many of the 66 cases of alleged violence against unionists were not labour-related because no connection with a trade union had been proven. There had been no dispute, no strike, no bargaining deadlock, and no collective (bargaining agreement or CBA) negotiations. In most cases, there had been no witnesses, which is an important stumbling block in the potential progress of the prosecution procedure in the Philippines.
291. In reply to a remark by the HLM that the very belonging to a trade union made the case a labour-related case, as in the case of the IWSWU, for example, the Undersecretary responded that the DOJ could not prosecute anybody without specific allegations such as specific details of harassment. He was informed however that the IWSWU had written to the mayor, because it did not have confidence in the PNP and AFP.
292. Task Force 211 (Note 3) considered labour-related cases as a priority. The Task Force was already doing everything it could to strengthen trust among the community, and had stepped up nationwide monitoring of cases involving political violence and extra-judicial killings pending before various prosecutor's offices and courts nationwide. In that regard, it had concluded a memorandum of agreement (MOA) with the media and various law schools. Under the MOA, accredited volunteers from the media and law schools could personally attend the scheduled hearings of cases being monitored, apprise themselves of the proceedings, and record the incidents that transpire in the cases' respective monitoring kits.
293. Twenty-four of the 66 cases were acknowledged to be related to the counter insurgency efforts. Task Force 211 validated that nine killings fell within its mandate as related to unions. Five cases out of the 16 harassment cases had been referred to the Commission on Human Rights. The Philippines had a Commission on Human Rights, an ombudsperson and other mechanisms which people could turn to. The Undersecretary stressed that prosecutors did not investigate, but acted on facts reported by the three agencies in charge of investigation. The DOJ could not rely only on perceptions of distrust within the community in order to carry out prosecutions.
294. The Undersecretary delivered a PowerPoint presentation (on record) arguing that the culture of impunity was a myth created by media reporting killings, but the follow-up, and the eventual solution were never given the same media attention. The Task Force had succeeded in speeding up the resolution of media killings, which was now down to three weeks. Nobody was spared in the process, whether they were mayors or military officers. In the case of the killing of a peasant leader in Hacienda Luisita, the AFC peacefully turned over one of its officers who had been a suspect but had evaded arrest for a long time.
295. The DND explained that its mandate and that of the AFP included not only territorial defence, but also internal security; community development; humanitarian assistance and disaster relief. He underlined that most cases of alleged harassment were perceived as such because counter-insurgency operations against the 5,000-strong NPA sometimes raised the possibility that people might be associated with the insurgency. Involvement in labour disputes was not part of the DND/AFP mandate, but there were times that DND/AFP thought a link with their mandate existed, and investigated further. There was a problem of public confidence in law enforcement. DND/AFP had invested heavily in the confidence of the Filipino people, and its assistance was almost always the first that people received. The first step in successful counter-insurgency was to engage the community and establish good relations. The AFP had to go out and repair schoolhouses, the military could not just live within their camps, and that might lead to perceptions of harassment. The AFP saw it as its role to protect people and keep them from joining the counterinsurgency. Talking to trade union members was not harassment, but was simply talking to members of the community. It was part of the law enforcement function to reduce the scope for people to engage in crime. Wherever there was want and danger, a trade union member could be susceptible to engaging in action against the Government.
296. The HLM stressed that the military had clearly a key role to play in ensuring law and order in the country, but that there needed to be a better understanding of the meaning of labour relations and the importance of not stigmatizing unions and their leaders by making blanket linkages to the counter-insurgency. The DND/AFP explained that it was much easier and time- and cost-efficient to talk to communities as a group; to talk to farmers as a farmers' group; and to talk to associations of professionals. The AFP also had to engage workers when it addressed communities, to make them aware of why the military was there. The HLM recommended having a more regular dialogue, perhaps at a regional level, providing orientation on the importance of ensuring respect for basic civil liberties within the context of legitimate trade union activity.
297. The Undersecretary concluded by stating that the Task Force's mandate concerned political violence, and did not deal with abduction or harassment, only killings. Of 39 labour-related killings, 20 were investigated, 16 filed and in two cases there had been convictions. The cases under investigation were problematic because of the lack of witnesses. He assured the HLM that the Witness Protection Programme had not lost a single witness, although it currently covered 450 witnesses in wide range of cases such as murder and drug trafficking.
298. The four government agencies present at the meeting submitted a PowerPoint presentation (on record) outlining the individual status of alleged cases of killings, abduction and harassment pending with them.
299. Meeting with Supreme Court Chief Justice
300. Reynato S. Puno and Chairperson of the Court of Appeals Vasquez
301. The HLM introduced its mandate and objectives. The HLM had noted the active use of the judiciary in labour disputes. One of the cases involving a Supreme Court judgement was unfortunately now before the CFA. The HLM underlined that the CFA is highly deferential to the national judiciary where it feels that there is an independent and functioning judiciary, but that its job is also to recall the guiding international principles.
302. Justice Puno cautioned that he did not have the freedom to discuss cases that were pending before the Supreme Court or the Court of Appeals. He underlined that although the supervisory bodies might disagree with one or two decisions, these decisions were by and large accepted by the labour sector. The judiciary decided thousands of cases arising from labour dispute settlement procedures. There were no specific statistics kept but all courts (labour tribunals, courts of appeals and the Supreme Court) were courts of record, and copies of decisions could readily be accessed.
303. On the question of whether the Supreme Court could refer to international Conventions, Justice Puno clarified that the Supreme Court primarily followed the Constitution, but that international law was given proper consideration and progressively implemented through interpretation. Interpretations were available on the Internet, and there was no impediment to courts using them. Justice Puno welcomed the invitation for the judiciary to participate in training programmes. The Philippines Judicial Academy was the educational arm in charge of the continuing education of judges, and could be approached through Justice Puno.
304. Justice Puno spoke of his proactive initiative in organizing the National Consultative Summit on extrajudicial killings of June 2007. (Note 4) He explained that the protection of human rights had been a high priority for him. In his first year, he had focused on the first batch of rights, that is, civil and political rights, and had spent some time thinking how the judiciary could offer an appropriate response to the situation. In 2007, he developed the writ of amparo (Note 5) and the writ of habeas data. (Note 6) In his second year, he had turned to the rights of the poor, a second generation of concerns. He had called a second forum, that is, the "Forum on Increasing Access to Justice: Bridging Gaps and Removing Roadblocks". In 2008, he had developed the Justice on Wheels Programme (JOW), essentially mobile courtrooms driving to local prisons, and providing free legal assistance to poor prisoners involved in criminal litigation. JOW succeeded in releasing some 2,300 prisoners over a period of two years. He had also initiated the Small Claims Court Pilot Project that provided an expeditious and inexpensive means to settle disputes involving the poor. The basic idea was to establish a summary procedure for disputes over up to PHP100,000 in civil matters. In his third year now, he was concentrating on the third generation of concerns, that is, a healthy environment. He was developing a "writ of Kalikasan" to promote environmental justice and address the problem of cases filed against environmental activists. All initiatives presented good examples for other Asian countries.
305. In reply to a query of whether the writ of amparo could be extended so as to afford greater protection to labour rights and address the blurring of lines between legitimate trade union activities and genuine threats to public security, Justice Puno advised that it should be for Congress to take the initiative in developing a complete package of measures to protect the rights of people.
306. Justice Puno considered that the Witness Protection Programme had shown to be insufficient in some aspects. The Court was reviewing the Witness Protection Programme on the writ of amparo. Hearings were being held on a new rule accrediting private institutions as sanctuary providers to families and witnesses, (Note 7) and it was hoped the rule could be adopted by the end of the year. The Supreme Court was working with the Commission on Human Rights in this respect.
307. The HLM raised the issue of workers, particularly in the civil service, not being reinstated because reinstatement orders were suspended when a decision was appealed and the often devastating impact this had upon their lives as they awaited the final judgement, often for many years. Justice Puno stated that, in principle, a writ of execution was valid unless there were temporary restriction orders (TRO). He thought that, in the last two years, TROs had been issued in no more than 5 per cent of the cases. Under the Labour Code (applicable to the private sector), decisions were immediately executory, and TROs were the exception. Justice Puno considered that only in very few cases, the court had intervened in the NLRC's decisions. The Supreme Court monitored the issuance of TROs particularly to prevent issues of discrimination.
308. Justice Puno explained that there were established rules for elevating decisions of a divisional court to en banc. The court en banc normally only was prepared to reconsider the interpretation of the divisional court, if new jurisprudence was involved, if a decision clashed with the interpretation of another divisional court, or if there was an impact on the industry. No additional aspects were normally considered in review. That did not mean that a particular question could not come back through a new case. Caution had to be exerted with interpreting freedom of expression in the context of the right to organize. The interpretation in the Dusit case did not only concern the workers' haircut, but also considerations of violence being committed by the workers. It was a decision that was confirmed all the way, including the Court of Appeals. The decision had hinged on workers violating the law and the collective agreement, so that the particular aspect of freedom of expression could be lawfully suppressed. The ILO did not have to worry about misinterpretations in this area, as there were currently two former Secretaries of Labor serving on the Supreme Court, that is, Justice Quisumbing and Justice Brion.
309. Meeting with members of Congress
310. Main participants at the meeting were:
311. - Honourable Lorenzo R. Tanada III - representative, Chair House Committee on Human Rights
312. - Attorney Magtanggol T. Gunigundo - representative, Chair House Committee on Labor and Employment
313. - Ms Fely D. Parcon - Secretary of the House Committee on Human Rights
314. Congressman Gunigundo introduced the functioning of Congress. He addressed the question of the assumption of jurisdiction for national interest (article 263(g) of the Labor Code). He underlined that there was a prevailing notion of what national interest was in the country, and that this issue would take a lot of study. The last Congress (13th Congress) was on the right track with House Bill No. 1941. After refiling the Bill in this Congress, campaigning had started around the issue. This Congress was not able to gather the required quorums, and was anyway nearing the end of its term.
315. The HLM pointed out that the decisions to be taken had been on the table for a long period of time, and wondered if there was any scope for this Congress to pass an amendment. Congressman Gunigundo thought there was only a small window of opportunity, since from January onwards members of Congress would be away campaigning in the upcoming elections. Considering also that, after the elections, the committee chairs could change, it was impossible to predict how the 15th Congress would move on this matter.
316. Congressman Tanada summed up the long list of priorities that Congress had to cope with. Both the 13th and 14th Congresses had spent considerable time on a Bill providing compensation to victims of the Marcos regime. Both the Senate and the House had passed a version, but it had not yet been put back on the agenda of the plenary. The House Committee on Human Rights had held 16 hearings and drafted a first report on the issue of extrajudicial killings, and hoped to come out with a report by 10 December. A Bill on torture was passed by Congress and was now awaiting the President's signature. A Bill on enforced disappearances was at the plenary having been passed by the House and the Senate. Then, there was a controversial Bill seeking to strengthen the Commission on Human Rights (CHR). The Philippines had provided for the Commission in its Constitution of 1987, the only country to do so. The Bill envisaged measures such as strengthening the Commission's visitorial powers in detention centres, and giving it residual prosecutorial powers. The new prosecutorial powers were the subject of controversy. Under the new rules, the CHR could formally recommend prosecution to the Government and ask to dismiss or act on the recommendation. If the Government did not act, the CHR would carry out a preliminary investigation itself and send the results to the prosecution. If the Government persisted in its inaction, the CHR would deputize the prosecutor to pursue the case. Witness protection, which was now only administered by the DOJ was also included in the Bill. Witnesses would be able to choose protection from either the DOJ or the CHR. The Bills on enforced disappearances and on the CHR stood a fair chance of adoption by the 14th Congress. An internal displacement Bill would probably have to be re-filed. Security forces did not confront the fact that things such as enforced disappearances were happening. The DOJ was not able to prosecute any cases, rather the CHR was receiving the complaints. It proved that there was not sufficient trust in the DOJ.
317. The HLM inquired after other bills that could have addressed many of the outstanding issues. Congressman Gunigundo submitted a matrix showing five bills addressing the issue of assumption of jurisdiction. He explained that he had authored Bill No. 2112 as only one member of the majority, while the other authors belonged to the political arm of the KMU. He acknowledged that the Labour Code of 1974 needed numerous revisions, but was hard to take up in its entirety. A piecemeal revision was conceivable, but other bills had so far received priority, notably the promotion of employment of students; taxation of wage-earners; and lactation stations. Congressman Gunigundo felt that although many trade unions had questioned the assumption of jurisdiction before the Supreme Court, the present Secretary of Labor had used compulsory arbitration very prudently.
318. Congressman Gunigundo explained, with respect to abuses of contractualization, the House Committee had passed Bill No. 6532 (Note 8) and that the Bill was now with the House Committee on Rules. The Bill raised the number of casual and contractual employees that a company can hire from the current 10 per cent to 20 per cent - but would still put a statutory cap on the number. The Bill had attracted strong opposition from foreign Chambers of Commerce. (Note 9) The lobbying probably explained the absence of a counterpart bill in the Senate.
319. Both Congressmen welcomed the offer of technical assistance and awareness raising on freedom of association matters.
320. Meeting with the Commission on Human Rights of the Philippines
321. The Commission was represented at the meeting by:
322. - Chairperson - Ms Leila M. De Lima
323. - Commissioner - Mr Jose Manuel Mamanag
324. - Attorney - Jessica Gambol Schuck
325. - Attorney - Dennis Mosquer
326. - Attorney - Robert Alcantara
327. The Chairperson explained the mandate of the Commission. The mandate of the four Commissioners and the Chairperson was expiring in 2015. The core mandate of the CHRP was civil and political rights. The CHRP monitored human rights as defined under international human rights treaties, of which the Philippines had ratified nine. The Commission engaged in human rights advocacy, and carried out human rights training, especially the security forces in collaboration with NGOs and civil society. It recommended legislative measures to Congress. The CHRP had visitorial powers within the jurisdiction of both the police and the armed forces, and these were unrestricted (that is, no prior clearance or prior notice required). The CHRP had been denied access in few cases, but there was generally a good understanding with the police, and the CHRP enjoyed cooperation from the AFP. The CHRP had an advisory mandate to the Government on all issues, such as on militarization, or plans to cancel the ancestral domain in Mindanao.
328. The President had sole appointment powers, but the CHRP was fully independent and fully compliant with the Paris Principles (A status). (Note 10) The CHRP could submit independent shadow reports to the UN treaty-monitoring bodies. It had to be distinguished from the Presidential Human Rights Committee (PHRC), which had been created by an Executive Order of the President. The CHRP sat on the PHRC in its promotional capacity, and assisted in the formulation of national human rights action plans. It had 680 staff covering the whole country, 20-25 in Manila. It could even rely on forensic expertise as part of its investigative powers.
329. The proposed charter was seeking to give the Commission stronger investigative powers. The Commission would be given a separate Witness Protection Programme, because too few cases led to prosecution and conviction because of lack of witnesses. The proposed charter would provide resources to run safe houses for witnesses. The CHRP also expected to be given prosecutorial powers, because of the dismally low number of prosecutions. Normally, only the DOJ or the Ombudsperson for the military had such prosecutorial powers. Philip Alston was opposed to these powers being given to the Commission, because it would tend to diminish its independent status, and because a combined position as human rights defender and prosecutor could cause a potential conflict with respect to the rights of the accused. The compromise was to grant the CHRP only residual powers, giving the DOJ and the Ombudsperson the opportunity to take the lead in the prosecution process, activating the powers of the Commission only if no action is taken within 90 day.
330. Compared to the record numbers of 2006-07, extrajudicial killings had dropped following the visit by Philip Alston, but then had risen again, although many of the killings were related to the insurgency. The AFP had instructions to crush this long-running insurgency by 2010. Mindanao was exposed to permanent skirmishes over indigenous peoples' rights. In those areas where the communists had a shadow government, and mining operations were secured by the military, indigenous peoples often got caught in the cross-fire.
331. The Government's performance with respect to human rights education and training appeared in order. When it came to protection, however, not much progress was evident with respect to extrajudicial killings, illegal arrest and illegal detention, as most perpetrators were enforcement authorities. The AFP maintained "order of battle" lists featuring trade unionists and church leaders. This was often denied, and the actual practice depended on the army commander in charge, but it was also admitted by an army general in recent cases.
332. The CHRP felt the Government was waging a propaganda war putting labour in the camp of the communists, and drawing a grey line between labour and security matters. The CHRP provided not only a reminder of human rights principles, but also assistance in exploiting labour-related avenues. The AFP's strong arm tactics often caused the monitoring of the security situation to spill over into extrajudicial killings.
333. The primary jurisdiction in labour-related cases rested with DOLE, and the CHRP referred such cases to DOLE or provided resolutions on an advisory basis. The CHRP investigated and issued categorical resolutions in the event of extrajudicial killings, but even then these were archived as a result lack of witnesses. In mining operations, the CHRP had received complaints that managers would seek cooperation from police or armed forces in securing the operation area.
334. Complaints demonstrated that the Philippines also had local companies and multinational enterprises (MNEs) committing human rights violations, and shadow governments extorting a "revolutionary tax".
335. The Government was almost always uncomfortable with the findings of the CHRP, although it never received negative comments from the President. The previous Secretary of Justice had occasionally been dismissive, as would be a lot of middle-level officers who see the CHRP as a stumbling block.
336. The CHRP had received complaints about people being summoned to military trainings (or indoctrination sessions). Some complained the AFP's conduct amounted to spying on individual views and positions, and there were also complaints from villagers being forced to join paramilitary groups.
337. The CHRP was now finalizing its procedural "Omnibus Rules", collating it with the "Anti-Red Tape Law". Until now, there had been a mandatory period within which a complaint should get a reply. In practice, cases of investigation took only a month, while resolution drafting a little longer. Depending on the amount of information to examine, cases lasted from several months to over a year. The Omnibus Rules would require cases to be treated within a year.
338. The CHRP recommended in particular: a more focused tracking of investigations by all bodies including Task Force 211 and the National Bureau of Investigation; the evaluation and prioritization of pending legislative initiatives with respect to labour rights; and the support for the immediate passage of the new CHRP charter.
339. Meeting with the members of the Civil Service Commission (CSC) and of the Public Service Labor Management Council (PSLMC)
340. The CSC was described as a quasi-judicial body responsible for making rulings on appointment and adjudicating administrative cases. The PSLMC was a bipartite body in which not only members from a variety of executive departments participated, but also where local government unions were represented. It had a heavy caseload of thousands of cases with the aim of rendering decisions no later than a year from the appeal. It was indicated that the CSC did not have contempt powers if its decisions were not applied, except in the instance where a TRO had been granted. The Chairperson of the CSC was not in a position to discuss the details of the decisions in the PSLINK case and their implementation, particularly in the light of the fact that his appointment, already made over a year ago and in the capacity in which he had been acting, had just been rejected by Congress.
341. IV. Conclusions and recommendations
342. In the first instance, the HLM would like to express its deep appreciation to the Government for having facilitated its meetings with all the relevant departments and government institutions and the relevant parties to the pending complaints. The efforts made in this respect were essential to the success of the mission. The HLM was impressed by the reams of documentation and information brought to it by all parties and the demonstration of a sincere desire to be fully heard and to share views in a mature and committed manner.
343. The HLM observed that the issues involved in the area of freedom of association could essentially be categorized into two groups: (1) those relating to violence, intimidation, threat and harassment of trade unionists and an absence of convictions in relation to those crimes and; (2) obstacles to the effective exercise in practice of trade union rights.
344. Violence against trade unionists
345. As regards violence against trade unionists, the HLM observed that many efforts had been made by the Government to strengthen existing structures and create new ones aimed at following through on complaints with a view to convicting the guilty parties. While there remained significant differences of view as to the extent of the violence and its relation to trade unionism, the HLM was impressed by the numerous individuals who had travelled long distances to explain their cases, the relevant linkages to their trade union activities and the lack of action taken on their files. Some of these meetings took place in unknown locations as the witnesses demonstrated a clear fear for their safety.
346. These cases have been transmitted to the Government as new allegations and additional information in the pending case concerning violence against trade unionists brought by the KMU and will be examined by the CFA in March 2010. In the meantime, the HLM has recommended to the Government, in view of the seriousness of the information provided and the gravity of the allegations, to establish a tripartite structure to review each of the pending allegations and permit a joint determination as to the linkages with trade unionism and to expedite and monitor the follow-up action taken.
347. At present, the advances in prosecuting and convicting perpetrators of violence against trade unionists are still entirely insufficient. While a great deal of information was provided by Task Force 211 as to the status of these cases, there was generally no real progress in convictions. Each case must be thoroughly investigated, even in the absence of a formal filing of charges, and appropriate protection provided to witnesses so that these cases can move forward. The investigations need to focus not only on the individual author of the crime but also on the intellectual instigators in order for true justice to prevail and to meaningfully prevent any future violence against trade unionists. While the Government has shown that even the military cannot be immune from prosecution by its recent arrest of a private first class of the Philippine Army for eight extrajudicial killings, it is crucial that the responsibility in the chain of command also be duly determined when crimes are committed by military personnel or the police so that the appropriate instructions can be given at all levels and those with control held responsible in order to effectively prevent the recurrence of such acts.
348. Beyond the question of direct violence, the HLM heard stories of intimidation by the armed forces that need to be investigated and redressed. As part of the counter-insurgency campaign, armed forces in certain areas, in particular special economic zones, have reportedly taken it upon themselves to invite workers to community forums where they set out to educate the workers in the exercise of their organizational rights. Many workers have felt this to be particularly threatening and a warning to them not to join certain unions that may not be appreciated by the army. The holding of these community meetings was not denied by the armed forces, but the military officers with whom the HLM met also recognized their lack of experience or knowledge in respect of trade union rights and welcomed training in this regard. Such training might also assist in the forces of order better understanding the limits to their role and advice in relation to trade union rights and the need to ensure the full and legitimate exercise by workers of these rights in a climate free from fear. The HLM has proposed to follow up with a combined human rights, trade union rights and civil liberties programme for the forces of order which could be co conducted with the CHRP. The guidelines for the conduct of the PNP, private security guards and company guard forces during strikes, lockouts and labour disputes may also need to be updated in this regard.
349. The relevant state institutions for combating impunity need to continue to be strengthened. The proposed charter of the CHRP would appear to go in the right direction in this regard as it would bolster the powers of this body to respond to individual complaints and further give it the capacity to protect witnesses. As the current witness protection programme does not meet with the total and complete trust and confidence of those met by the HLM, an alternative system may provide a valuable option. The existence of a constitutionally based independent human rights commission is a formidable asset in the country and the HLM recommends that the legislative proposal to give it statutory powers should be supported by the Government and expedited through Congress before it adjourns.
350. Obstacles to the effective exercise of trade union rights
351. The HLM heard numerous stories of impediments and obstacles to the full exercise of freedom of association. The unions raised various situations where they had been effectively blocked from exercising trade union rights for decades and where any advances in this respect were few and far between. In particular, the unions painted a picture where trade union rights are rarely respected by the employer who is reported to prefer a non-union workplace or one where unions are generally submissive. Where independent unions exist, collective bargaining was said to be difficult and strike action to routinely end in the Secretary of Labor's exercise of the assumption of jurisdiction powers under section 263(g).
352. The HLM also learned, however, of numerous efforts on the part of the competent authorities, including DOLE, the CSC, the PSLMC, the NMCB, and the PEZA to assist in resolving disputes voluntarily and defending workers' rights in cases of anti-union discrimination or interference. The HLM was told that the Secretary of Labor and Employment was making efforts in recent times to avoid the use of his powers under section 263(g). Nevertheless, it appeared that, despite the goodwill of the parties responsible for applying the law, decisions taken were regularly appealed and long court battles ensued with appeals all the way up to the Supreme Court, which would, in some cases, make judgements on the appropriateness of a detail in the application of the law that would appear to be better left to the discretion of the implementing authority. Over the years this appears to have given rise to certain jurisprudence in the field of labour law which was complained about by many to be arcane and often incapable of meaningful application.
353. Numerous complaints were made about the difficulties encountered in trying to organize in the special economic zones and information was given by one of the unions for a new complaint before the CFA. The HLM observed however that the national laws are fully applicable in the zones and the head of the zone authority was categorical in the importance she attached to ensuring respect for trade union rights. In addition, the HLM noted that there were unions in 63 companies out of 2,000 in the special economic zones (representing 2.58 per cent of the workers in the zones) and that, at least in one case where it had the opportunity to meet both the union and the enterprise representation at the highest level, there appeared to be a meaningful and respectful approach to labour relations and freedom of association. The Director-General of PEZA and her staff were eager to obtain further training in the area of freedom of association so as to best ensure full respect for the Labor Code and the relevant international principles.
354. The HLM welcomed the interest and enthusiasm of all met to learn more about international labour standards and the principles elaborated in the area of freedom of association and commits the Office to assist the Government in elaborating an appropriate programme of continuing education and technical cooperation in this regard. The social partners have also expressed interest and could benefit not only from awareness-raising workshops on their rights, but also from capacity-building activities to improve their ability to engage with each other and to develop strong and harmonious industrial relations at all levels.
355. As for the specific cases still pending, the information collected will be transmitted to the CFA for its evaluation in March 2010. In those cases where the Committee had already drawn its conclusions and recommendations and requested the Government to take appropriate action, the HLM observed that the parties have been at a stalemate for many years, incapable of finding solutions and closure. In certain of these cases this meant the loss of their livelihoods for years while decisions to reinstate were endlessly appealed. The impact upon these individuals and their families was substantial and distressing. In other cases, attempts to certify unions have been systematically blocked, appealed, elections renewed despite the absence of resolution to the questions at origin. The HLM urged the Government to review these cases in the light of the CFA's recommendations and to think outside of the box in finding ways to resolve these long-standing cases in a satisfactory manner.
356. The HLM was impressed by the quality and the dedication of so many in their various roles and responsibilities and their sincere interest in moving the country forward in a constructive and engaged manner. It commits to accompanying the Government and the social partners in any way it can in this regard and is convinced that, if the assurances given are effectively followed through, important progress will be made in ensuring greater application of C. 87 in law and in practice in the Philippines.
357. V. Acknowledgement
358. The HLM wishes to express its deep appreciation for the cooperation it received from the Filipino authorities in carrying out its mandate. All planned meetings could take place on time despite the tight schedule and the unforeseen additional demands that were placed on officials' availability as a result of the tropical storm that hit Manila on 26 September. The HLM further expresses its deep gratitude for all the arrangements and preparations carried out by the SRO Manila which were essential to the mission's success. In this respect, it wishes to single out in particular the Director, Linda Wirth and Senior Programme Assistant, Diane Respall.
359. *****************
360. NOTES:
361. Note 1:
362. The TMPCLO, the TMPCSU and the AIWA are members of the Philippines Metalworkers Alliance (PMA).
363. Note 2:
364. In November 2004, the United Luisita Workers' Union went on strike against the management of Hacienda Luisita and a sugar mill (Central Azucarera de Tarlac) over the dismissal of more than 300 union members and leaders. DOLE assumed jurisdiction over the dispute, and ordered the dispersal of the strike. The resulting clashes left seven workers dead.)
365. Note 3:
366. "Task Force 211" is a presidential task force against political violence created by virtue of Administrative Order No. 211 dated 22 November, 2007. Task Force 211 is chaired by Department of Justice Undersecretary Ricardo R. Blancaflor. Its mandate is to "harness and mobilize government agencies, political groups, the religious, civil society and sectoral organizations and the public for the prevention, investigation, prosecution and punishment of political violence, the care and protection of people and communities victimized and threatened with violence, and the promotion of a culture opposed to violence and for the advancement of reconciliation and peace".
367. Note 4:
368. The National Consultative Summit on extrajudicial killings took place on 16 and 17 July 2007, at the Manila Hotel. Among the participants were representatives of the legislative, executive and judicial powers, the AFP, the PNP, the Commission on Human Rights, media, academia, civil society and other stakeholders.
369. Note 5:
370. The "writ of amparo" is a judicial remedy to help address the issue of extrajudicial killings and forced disappearances in the Philippines. The writ empowers the courts "to issue reliefs that may be granted through judicial orders of protection, production, inspection", essentially forcing the authorities to safeguard one's life and liberty. The Supreme Court issued the "Rule on the writ of amparo" en banc on 25 Sep. 2007.
371. Note 6:
372. The "writ of habeas data" supplements the writ of amparo. The writ empowers the courts to order the authorities to disclose the information that is being held about a person. The writ conveys the power not only to force the authorities to release information about disappearances, but also to grant access to military and police files. The Supreme Court issued the "Rule of the Habeas Data" en banc on 22 Jan. 2008.
373. Note 7:
374. The full title of the proposed rule is the Proposed rule to strengthen protection and security of aggrieved parties availing of the writ of amparo or their witnesses and guidelines in the accreditation of persons and private institutions as sanctuary providers under the writ of amparo.
375. Note 8:
376. House Bill No. 6532 concerns "An Act Strengthening the Security of Tenure of Workers in the Private Sector".
377. Note 9:
378. The joint letter to the Speaker of Congress from the Chambers of Commerce of Australia, Canada, the European Union, Japan, the Republic of Korea, New Zealand and the United States may be found at
379. www.amchamphillippines.com/print.php?publicaffairs=1&id=7.
380. Note 10:
381. That is, the Paris Principles on Establishment of National Human Rights Institutions and Realization of Fundamental Rights and Freedoms.