Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

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

The Committee recalls that in its previous observation it noted the recommendations of the high-level mission which visited the country in September 2009, and the commitment expressed by the Government to embark upon a comprehensive technical cooperation programme on freedom of association and to create a high-level tripartite monitoring body to review the progress made in investigating and prosecuting the cases of violence brought to the attention of the ILO’s supervisory machinery. The Committee had requested the Government to provide information on the progress made in establishing such a body, on its mandate and functioning. The Committee notes with interest the Government’s indication that the National Tripartite Industrial Peace Council (NTIPC) was established on 20 January 2010 as a high-level monitoring body on the application of international labour standards and, in particular, of the Convention. The NTIPC mandate is to: (i) facilitate “out-of-the-box solution” to long‑standing Committee on Freedom of Association (CFA) cases; (ii) monitor and report progress on active CFA cases; (iii) facilitate gathering of relevant information on complaints submitted to the ILO; and (iv) evaluate and recommend appropriate action(s). The Committee notes detailed information provided by the Government on NTIPC activity since its establishment.

The Committee welcomes the measures taken by the Government to strengthen the operational capacity of the Philippines National Police (PNP) and Armed Forces of the Philippines (AFP) aimed at fostering an enabling environment for the enjoyment of constitutionally guaranteed civil liberties and trade union rights through: (i) inclusion into the PNP Operational Procedures (POP) Manual and the Manual on Rules on Labour Disputes, Rallies and Demonstration of Human Rights Protection to be Provided to Victims and Criminals; (ii) supplementing the POP Manual with a Guidebook on Human Rights-Based Policing to provide police personnel with a basic reference on rights-based policing and to offer practical suggestions on how to mainstream international standards on human rights for law enforcement in police stations; (iii) reinforcement of Human Rights Desks in the police stations; and (iv) the campaign to dismantle all private armies. The Committee further welcomes the Government’s indication that the Revised Joint Guidelines on the conduct of the PNP personnel and private security guards during strikes and lockouts will be signed before the end of 2010 after the final consultation. The Committee requests the Government to provide information on the adoption of the Joint Guidelines in its next report.

The Committee also welcomes the activities conducted under the
EU–Philippines Justice Support Program (EPJUST) (police and other investigative bodies, prosecutors and judiciary) aimed, among others, at: (i) enhancing the capacity and effectiveness of the Philippine justice system in the effective and timely investigations, prosecution and bringing to justice perpetrators, ensuring a fair, speedy and impartial trial of those charged with the crimes; (ii) enhancing the capacity and effectiveness of the Commission of Human Rights; and (iii) strengthening the ability of the uniformed services by training their personnel in relevant international human rights standards.

The Committee further welcomes the Government’s commitment to continue working closely with the ILO, social partners and other stakeholders in establishing a technical cooperation programme to raise awareness and strengthen the capacity of all relevant government institutions and the social partners in the promotion and protection of labour rights. In this respect, the Committee notes with interest that two regional seminars were conducted in April 2010 on civil rights, freedom of association, collective bargaining, and labour law implementation and enforcement in the Philippine Economic Zones; and that a capacity-building seminar for labour justice administrators, Supreme Court justices and their legal staff will be conducted before the end of 2010.

The Committee also notes with interest that, following the high-level mission, Republic Act No. 9745 (Anti-Torture Act of 2009) was approved on 10 November 2009. The Government indicates that this reaffirms its commitment to uphold civil liberties, and human and trade rights by penalizing torture and other cruel, inhuman and degrading treatment or punishment and reinforces the earlier issuances of the Supreme Court on the Writ of Habeas Data and Writ of Amparo, noted by the Committee.

The Committee notes the information provided by the Government on the comments submitted by the International Trade Union Confederation (ITUC) in 2009 in relation to violence against trade unionists and impunity in the country. The Committee notes that, in addition to the above, with regard to some concrete allegations, the Government undertakes to submit its observations on the relevant pending cases to the CFA, and to continue gathering information on other alleged cases and to provide its reply as soon as possible. The Committee trusts that the Government will submit this information with its next report.

The Committee further notes a communication dated 24 August 2010 from the ITUC in which it provides its comments on the application of the Convention in law and in practice. The Committee notes that some of the ITUC’s comments relate to the legislative issues raised by the Committee below (restriction on foreign nationals’ right to join trade unions, on the registration of trade union organizations and their activities, including the right to strike, as well as the use of the Human Security Act). The ITUC also alleges that, against a background of a high-level ILO mission to the Philippines, the killings, kidnappings, disappearances and anti-union tactics, including harassment and arrests, continued. The Committee requests the Government to provide its observations on these allegations.

Human Security Act. The Committee had previously requested the Government to provide information on the impact of the Human Security Act upon the application of the provisions of the Convention and to indicate the safeguards which ensure that this 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. The Committee notes the Government’s indication that this law was enacted in 2007 to address terrorist activities that endanger the population. According to the Government, while the Act classifies various crimes as terrorist acts, the exercise of trade union rights (right to self-organization, peaceful concerted activities, collective bargaining, etc.) is not within its scope and that legitimate trade union activities could not be included in the rigid definition of crimes provided for in the Act. The Government points out that the apprehension of the possible abuse of the Act by the police and judicial authorities to curtail trade union activities is more imagined than real. The Government states that, since the enactment of this legislation, there appears to be no case where such abuse had been raised with respect to its implementation. The Committee requests the Government to provide information in its next report on the use of the Act, if any, in cases concerning trade unionists.

Labor Code. The Committee recalls that for a number of years it has been commenting on certain discrepancies between the provisions of the Labor Code and the Convention. In this respect, the Committee notes the Government’s indication that it is currently working on the proposed legislative reforms to further strengthen trade unionism and remove obstacles to the effective exercise of labour rights and that two bills are currently undergoing tripartite consultations for submission to the NTIPC prior to their filing with the appropriate Committees of both Houses of the 15th Congress. The Committee recalls that its previous comments referred to the need to bring the national legislation into conformity with the following Articles of the Convention.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations of their own choosing, without previous authorization. The Committee had previously referred to 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). Noting that the Government once again refers to the principle of reciprocity, the Committee requests the Government to provide information in its next report on the measures taken 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 Committee recalls that it had previously requested the Government to communicate the relevant legislation which had lifted the 20 per cent requirement and the requirement to reveal the names of the officers and members, for legitimate federations and national unions. The Committee notes, in this respect, Republic Act No. 9481, which, among others, amended section 234(c) of the Labor Code. The Committee notes, however, that according to this section, as amended, the above-noted requirement is still applicable to unions seeking independent registration. The Committee recalls that the requirement of a high minimum proportion of workers before a union may be formed is contrary to the right of workers to form organizations of their own choosing (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 81). The Committee therefore once again requests the Government to take the necessary measures in order to amend section 234(c) of the Labor Code so as to lower the minimum membership requirement for forming an independent union and to indicate, in its next report, the measures taken or envisaged in this respect.

The Committee had previously requested the Government to indicate all measures taken with a view to lowering the 30 per cent minimum membership requirement for registration of public employees’ unions set forth by Executive Order No. 180 of 2004. The Committee notes with satisfaction the adoption, on 29 June 2010, by the Public Sector Labor-Management Council, of resolution No. 4 lowering the percentage of minimum membership requirement for purposes of registration and thus restoring the earlier longstanding practice, in accordance with the requests of the unions.

Article 3. Right to strike. The Committee had previously requested the Government to take the necessary measures 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. The Committee notes the Government’s indication that, within the context of the abovementioned legislative reform, the first of the abovementioned bills seeks to amend section 263(g) so as to limit the assumption of jurisdiction of the Secretary of Labor (and the President) to the ILO’s concept of “essential services”. The Committee further notes the Government’s indication that Department Order No. 40-G-03 providing the implementing rules on the exercise of the assumption of jurisdiction power of the Secretary of Labor was adopted as an interim administrative measure on 29 March 2010. The Committee notes that, according to new section 15 of Rule XXII of the Order, “when a labor dispute causes or is likely to cause a strike in an industry indispensable to the national interest, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same to the National Labor Relations Commission for compulsory arbitration” either upon a request by both parties to the dispute or “after a conference called by the Office of the Secretary of Labour and Employment … moto proprio or upon a request of petition by either parties to the labor dispute”. The Committee recalls that compulsory arbitration to end a collective labour dispute and a strike is acceptable if it is at the request of both parties involved in a dispute, or if the strike in question may be restricted, even banned, that is in the case of disputes in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population. The Committee considers that the term “national interest” is too broad to fall within a strict definition of what may constitute an essential service. The Committee requests the Government to amend Department Order No. 40-G-03 so as to ensure the application of this principle. The Committee expresses the firm hope that the bill referred to by the Government will ensure that governmental interference resulting in compulsory arbitration will be limited solely to the essential services in the strict sense of the term. The Committee requests the Government to indicate all measures taken in this respect and to provide relevant statistics on the recourse had to section 263(g) in the meantime.

The Committee had previously requested the Government to amend sections 264(a) and 272(a) of the Labor Code, which provided 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 penally sanctioned. The Committee notes the Government’s indication that, within the context of the abovementioned legislative reform, the second bill removes the possibility of imposing a criminal sanction for mere participation in an illegal strike on grounds of non-compliance with the administrative requirements. The Committee recalls that no penal sanction should be imposed against a worker for having carried out a peaceful strike and on no account should measures of imprisonment be imposed. Such sanctions could be envisaged only where, during a strike, violence against persons or property or other serious infringements of rights has been committed, and can be imposed pursuant to legislation punishing such acts. The Committee expresses the firm hope that any new legislative text will ensure the application of this principle.

Right of workers’ organizations to organize their administration without interference by the public authorities. The Committee recalls that it had previously requested the Government to amend section 270 of the Labor Code, which subjected the receipt of foreign assistance to trade unions to the prior permission of the Secretary of Labor, and notes the Government’s indication that the second bill repeals this requirement.

Article 5. Right of organizations to establish federations and confederations. The Committee once again requests the Government to take the necessary measures in order to lower the excessively high requirement of ten union members for federations or national unions set out in section 237(a) of the Labor Code.

The Committee expresses the firm hope that the undertaken legislative reform will soon be completed and that the aforementioned legislative provisions will be brought into full conformity with the Convention. The Committee requests the Government to provide in its next report information on the outcome of this reform and all relevant legislative texts so adopted.