Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Philippines (Ratification: 1953)

The Committee notes the information provided by the Government in its report.

1. Article 3 of the Convention. In its previous comments, the Committee had noted that amendments had been proposed to section 263 of the Labor Code which restricted the right to strike in non-essential services by imposing compulsory arbitration when, in the opinion of the Secretary of Labor and Employment, a planned or current strike affected an industry indispensable to national interest. These amendments had been proposed in Senate Bill No. 1757 which sought to limit this power of the Labor Secretary to disputes affecting industries performing essential services (meaning "medical, water supply, telephone, electric, national mass transport and other similar services, the disruption of which services could endanger the life and safety of the general public"). In its report, the Government indicates that these amendments to section 263(g) under Senate Bill No. 1757 remain pending before the legislature. The Committee requests the Government to keep it informed of any progress made in the adoption of these amendments.

With regard to the inclusion of national mass transport as an essential service, the Government explains that in view of the difficulties faced by the country in mass transportation, it considers that the disruption of both inland and inter-island mass transportation would practically pose a danger to the life, safety or health of the population. As mentioned in its previous observation, while mindful of the difficulties and inconveniences that the population living on islands would be subjected to following a stoppage in transport services, the Committee is of the opinion that such services are not in themselves essential services in the strict sense of the term, that is, those the interruption of which would endanger the life, personal safety or health of whole or part of the population. The Committee would therefore suggest that rather than imposing an outright ban on strikes which should be limited to essential services in the strict sense of the term, the Government consider establishing a minimum service, in consultation with the workers' and employers' organizations concerned, in national mass transport.

Finally, with regard to the amendments proposed in the Bill relating to the powers of the President to intervene in strikes without any limitation, the Government explains that these amendments are less restrictive than the current law which grants this discretion to the Secretary of Labor and Employment. Giving authority to the President would limit interventions to situations of crisis proportions requiring presidential action. If these amendments would, in effect, only allow the President to intervene in situations of acute national crisis, the Committee would then ask the Government to ensure that the amendments mention this point specifically, so as to bring its legislation into conformity with national practice and the Convention.

The Committee's previous comments related to the following penalties in the Labor Code for participation in illegal strikes: the dismissal of trade union officers (section 264(a)); penal liability to a maximum prison sentence of three years (section 272(a)); and imprisonment for the organizers or leaders of strikes and for participants in pickets deemed for propaganda purposes against the Government (section 146 of the revised Penal Code).

First of all, the Government states that under section 264(a), the dismissal of a union officer can only take place for participation in an illegal strike (not a lawful strike) and can only be carried out upon final proper declaration by the appropriate government body, and is subject to final review by the Supreme Court. The Committee considers, however, that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 177). As pointed out by the Committee and acknowledged by the Government in previous observations, some prohibitions on strike action contained in current legislation are not in conformity with freedom of association principles.

The Government states, moreover, that the penalty of a maximum prison sentence of three years contained in section 272(a) applies to both workers and employers and does not discriminate against unionists. With regard to section 146 of the revised Penal Code, the Government indicates that this provision, which pertains to participation in illegal assemblies relating to treason, rebellion or insurrection and related crimes, is prescribed for the protection of the State and the society. The Committee notes, however, that this provision also pertains to participation in "Any meeting which is held for propaganda purposes against the Government ... in order to destabilize the Government or undermine its authority by eroding the faith and loyalty of the citizenry thereto ..." (section 146, paragraph 3) and that the word meeting "shall be understood to include a gathering or group such as public rallies, mass demonstrations, picketing of labor groups and similar group actions ...".

The Committee recalls that sanctions for strike action (including picketing) should be proportionate to the offences committed and penalties of imprisonment should not be imposed in the case of peaceful strikes. The Committee would therefore request the Government to take steps to ensure that sections 264(a) and 272(a) of the Labor Code, as well as section 146 of the revised Penal Code are amended in line with its comments made above, and to supply copies of any texts adopted in this regard.

With respect to the requirement that officers of a union operating in an enterprise be employed there by virtue of Rule II(3)(f) of Book V implementing the Labor Code, the Committee had pointed out in its previous observation that such legislation entailed the risk of interference by the employer through the dismissal of trade union leaders for exercising legitimate trade union activities with the result (or even the intention) of depriving them in the future from holding a position as a trade union officer. The Government emphasizes, however, that mere dismissal from employment does not deprive a union member of the right to be elected as union officer. Under the Labor Code, the term "employee" includes "any individual whose work has ceased as a result of or in connection with any current labor dispute or because of any unfair labor practice if he has not obtained any other substantially equivalent and regular employment". As such, he remains an employee and is eligible to run as an officer in the union.

The Committee takes due note of this information, but is of the view that it would be desirable to make its legislation more flexible by admitting as candidates persons who have previously been employed in the occupations concerned.

2. In its previous comments, the Committee had noted the following discrepancies between the Labor Code and Articles 2 and 5 of the Convention: (i) the requirement that at least 20 per cent of the workers in a bargaining unit be members of a union for the union to be registered (section 234(c)); (ii) the requirement of a too high number of unions (ten) to establish a federation or a central organization (section 237(a)); (iii) the prohibition of aliens - other than those with valid permits if the same rights are guaranteed to Filipino workers in the country of origin of the alien workers - from engaging in any trade union activity (section 269) under penalty of deportation (section 272(b)).

The Government states that separate bills addressing the concerns aired by the Committee are currently being studied in the legislature. The Committee would request the Government to supply copies of these bills along with its next report.

3. Finally, the Government indicates that a new Civil Service Code which would grant government workers the right to strike in certain circumstances, in accordance with the Filipino Constitution (article XIII(3) grants all workers the right to strike), is still pending in both houses of Congress and has not yet been passed into law.

The Committee requests the Government to supply a copy of this new Code along with its next report.