Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

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

The Committee notes that the Government’s report has not been received. It also notes the lengthy comments communicated by the International Trade Union Confederation (ITUC) in communications dated 29 August and 1 September 2008, the Kilosang Mayo Uno in a communication dated 15 September 2008, and the Public Services Labor Independent Confederation (PSLINK) in a communication dated 15 September 2008. The Committee requests the Government to provide its observations on these comments.

Civil liberties. In its previous comments, the Committee took note of information provided by the ITUC in 2006 and 2007 with regard to numerous reported violations of trade union rights, including killings, attempted murders, death threats, abductions, disappearances, assaults, torture, military interference in trade union activities, violent police dispersion of marches and pickets, arrests of trade union leaders in connection with their activities and widespread impunity for the perpetration of such acts. The Committee also takes note in this context of the interim conclusions and recommendations reached in November 2008 by the Committee on Freedom of Association in Case No. 2528 (351st Report, paragraphs 1180–1240) which concerns similar allegations. The Committee finally takes note of the recommendations made by the Independent Commission to address media and activist killings created under Administrative Order No. 157 of 2006 by the President of the Philippines (Melo Commission: report issued on 27 January 2007); the UN Special Rapporteur on Extrajudicial Summary or Arbitrary Executions on his mission to the Philippines of 12–21 February 2007 (Special Rapporteur: document A/HRC/8/3/Add.2, issued on 16 April 2008); and the National Consultative Summit on Extrajudicial Killings and Enforced Disappearances: Searching for Solutions (National Consultative Summit), which was hosted by the Supreme Court on 16–17 July 2007 in Manila.

The Committee recalls the information previously communicated by the Government emphasizing the steps taken to address this serious situation, i.e. the establishment of the Melo Commission and the subsequent creation of special regional tribunals, the ongoing review of the rules of court, the establishment of the task force USIG of the Philippine National Police and the hosting by the Supreme Court of the National Consultative Summit. It further notes from information provided by the ITUC in 2008, the introduction by the Supreme Court of the new writ of protection of constitutional rights (amparo) procedure since September 2007; this habeas corpus-like procedure compels state agencies to reveal to the court the whereabouts of named persons, disclose documentary evidence, or allow court-authorized searches of premises.

The Committee notes that in its latest communications of 29 August and 1 September 2008, the ITUC provides additional detailed information, accompanied by hundreds of pages of human rights reports and newspaper articles, on the human rights situation more generally and systematic violations of the fundamental human rights and civil liberties of trade unionists. In particular, the Committee notes that, according to the ITUC, despite measures previously announced by the Government to address the issues, few improvements have been observed in practice and there is an “abysmal failure” to investigate or prosecute the perpetrators of such acts, leading to an ongoing climate of impunity and impassivity in the face of continuing violence against trade unionists. The ITUC refers to continuing extrajudicial killings in 2007 and 2008 with a total of 87 unionists killed since 2001. Five trade union leaders and members had been murdered and three trade unionists abducted between July 2007 and August 2008. The ITUC also refers to violent dispersal of workers’ protests, intimidation, threats and blacklisting of trade unionists. It also refers to the militarization of workplaces especially in export processing zones (EPZs) and special economic zones, and constant surveillance and harassment of trade unions opposing the economic development model and their leaders, some of whom have been reportedly forced to constantly move houses to avoid persecution. The Committee further notes that the ITUC cites the findings and detailed recommendations of the UN Special Rapporteur (see document cited above) and expresses concern that the ineffectiveness of the measures taken so far by the Government to address the situation as, out of hundreds of killings and “disappearances” over the past five years, there have been only two successfully prosecuted cases resulting in the conviction of four persons (for acts not directed against trade unionists).

The Committee recalls that the Conference Committee in 2007 requested the Government to accept a high-level ILO mission so as to obtain a greater understanding of all aspects of this case. The Committee notes with regret that the Government has not yet accepted such a mission.

The Committee observes with deep regret that there has been no information on any conviction pronounced against the perpetrators and instigators of acts of extreme gravity against trade unionists and that killings, abductions, enforced disappearances and other violations of fundamental rights of trade unionists continue to take place. The Committee recalls that the absence of judgements against the guilty parties creates, in practice, a situation of impunity which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights. The Committee emphasizes 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. The Committee stresses the importance of ensuring that all instances of violence against trade union members and leaders are properly investigated and that any evidence of impunity is firmly combated to ensure the full and free exercise of trade union rights and their accompanying civil liberties. It emphasizes that the Government has the duty to defend a social climate where respect for the law reigns as the only way for guaranteeing respect for and protection of individuals. All appropriate measures should be taken to guarantee that, irrespective of trade union affiliation, trade union rights can be exercised in normal conditions with respect for basic human rights and in a climate free of violence, pressure, fear and threats of any kind.

The Committee requests the Government to indicate the measures taken or contemplated with a view to putting an immediate end to the climate of violence and impunity which is extremely damaging to the exercise of trade union rights and ensuring the prompt investigation, prosecution, trial and conviction of those found guilty of murders, enforced disappearances and other violations of fundamental human rights against trade unionists.

Legislative issues. Human Security Act. The Committee notes the comments made by the ITUC on the Act to Secure the State and Protect Our People from Terrorism (No. 9371) otherwise known as the Human Security Act. According to the ITUC, the vague definition of terrorism in this Act as a criminal act that “causes widespread and extraordinary fear and panic among the populace” can serve as a legal umbrella for extrajudicial killings and can lead to categorizing peaceful demonstrations like strikes and protests on social issues as “terrorism”.

The Committee notes that, despite a request by the Conference Committee on the Application of Standards in 2007, the Government has not provided any information on the impact of the Human Security Act upon the application of the provisions of the Convention, apart from the text of the Act itself. The Committee requests the Government to provide such information and, in particular, to indicate the safeguards which ensure that the Human Security Act cannot be used under any circumstances as a basis for suppressing legitimate trade union activities or result in any extrajudicial killing for the exercise of trade union rights.

Other legislative issues. In the absence of new information by the Government, the Committee reiterates the requests that it has been making for a number of years on certain discrepancies between the provisions of the national laws and the Convention:

–           The need to amend section 234(c) of the Labor Code, which requires, for registration of a trade union organization, the names of all its members comprising at least 20 per cent of all employees in a bargaining unit where it seeks to operate; the Committee recalls that, according to the statement of the Government representative before the Conference Committee in June 2007, an Act had been adopted in May 2007 which sought to lift the 20 per cent requirement and the requirement to reveal the names of the officers and members, for legitimate federations and national unions; however, the 20 per cent membership requirement was still relevant in the case of unions seeking independent registration. The Committee once again requests the Government to communicate the text of the relevant Act and to indicate in its next report measures taken or contemplated with a view to lowering the minimum membership requirement for registration of independent trade unions.

–           The need to amend sections 269 and 272(b) of the Labor Code, so as to grant the right to organize to all nationals lawfully residing within the Philippines (and not just those with valid permits if the same rights are guaranteed to Filipino workers in the country of the alien workers, or if the country in question has ratified either ILO Convention No. 87 or No. 98). The Committee once again requests the Government to provide information in its next report on measures taken or contemplated so as to amend the above-noted sections in a manner which enables anyone legally residing in the country to benefit from the trade union rights provided by the Convention.

–           The need to amend section 263(g) of the Labor Code so as to limit governmental intervention resulting in compulsory arbitration to the essential services in the strict sense of the term only; amend sections 264(a) and 272(a) of the Labor Code, which provide for dismissal of trade union officers and penal liability to a maximum prison sentence of three years for participation in illegal strikes, so as to ensure that workers may effectively exercise their right to strike without the risk of being sanctioned in a disproportionate manner; lower the excessively high requirement of ten union members for federations or national unions set out in section 237(a) of the Labor Code; and amend section 270, which subjects the receipt of foreign assistance to trade unions by the prior permission of the Secretary of Labor. The Committee once again requests the Government to indicate in its next report the measures taken or contemplated with a view to amending the aforementioned legislative provisions so as to bring them into full conformity with the Convention.

Furthermore, the Committee reiterates its previous request to the Government to continue to provide information on unionization levels in the EPZs. The Committee takes note of the comments made by the ITUC on this issue, which are examined under Convention No. 98.

The Committee is raising other points in a request addressed directly to the Government.