Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

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 on the comments submitted by the International Trade Union Confederation (ITUC) in 2009 and 2010. In particular, it notes with interest from the Government’s report the following measures taken by the Government to strengthen the operational capacity of the Philippines National Police (PNP) and Armed Forces of the Philippines (AFP), with the objective of fostering an enabling environment for the enjoyment of constitutionally guaranteed civil liberties and trade union rights:

• (i) the issuance on 23 May 2011 of the Joint DOLE-PNP-PEZA Guidelines in the Conduct of PNP Personnel, Economic Zone Police and Security Guards, Company Security Guards and Similar Personnel during Labor Disputes (PNP Guidelines);
• (ii) the conduct jointly by the Department of Labor and Employment (DOLE), PNP and the Philippine Economic Zone Authority (PEZA) of four area-wide orientation seminars for the Regional Coordinating Council and Regional Tripartite Industrial Peace Council (RTIPC) members, to foster common understanding among stakeholders on the PNP Guidelines and the respective functions and jurisdictions of the agencies and to ensure close coordination among DOLE, PNP and PEZA in resolving labour disputes;
• (iii) conduct from February to July 2012 of a total of 17 orientation seminars on the PNP Guidelines (including 13 for human resources personnel and security agencies under PEZA from various economic zones);
• (iv) issuance on 27 February 2012 of a DOLE Internal Operational Guidelines outlining the DOs and DON’Ts in the implementation of the PNP Guidelines to all the Regional Offices of the DOLE;
• (v) adoption by the National Tripartite Industrial Peace Council (NTIPC) on 17 April 2012 of the DOLE-DILG-PNP-DND-AFP Joint Guidelines on the Conduct of the AFP/PNP Relative to the Exercise of Workers’ Right to Freedom of Association, Collective Bargaining, Concerted Actions and Other Trade Union Activities (AFP Guidelines), as an offshoot of the Manifesto of Commitment signed by the participants to the DOLE–Labor Sector–AFP Summit on the Protection and Promotion of Workers’ Rights held on 21 July 2011, and after the input of three area-wide DOLE–Labor Sector–AFP–PNP summits and regional consultations conducted by the different RTIPCs from January to mid-March of 2012 as well as expanded sittings of the Tripartite Executive Committee of the NTIPC in late March 2012; the AFP Guidelines were signed and issued with ILO technical assistance on 7 May 2012 and are applicable to the involvement or mobilization of the members of the AFP, including Citizen Armed Force Geographical Units (CAFGUs), the PNP, the Local Chief Executive, and the Barangay Tanod in all cases of exercise of workers’ rights to freedom of association, collective bargaining, concerted actions and other trade union activities; they set out the rights of workers relative to the exercise of freedom of association; prohibit the deployment of all military personnel to address labour-related mass actions and disputes, except if support to the PNP is needed due to a security situation and at the written request of the DOLE; prohibit the intervention of local chief executives in any labour disputes, except when requested in writing by the DOLE; set out the protocol for the set-up of PNP or AFP detachments if near or proximate to a workplace where there is a potential or actual labour dispute or an ongoing trade union organizing or campaigning for certification as sole and exclusive bargaining agent; prohibit the conduct by the PNP and the AFP of anti-insurgency campaigns vis-à-vis the exercise of trade union rights and civil liberties; and set out remedies in case of violations;
• (vi) the steps planned to ensure the implementation and compliance with the AFP Guidelines, such as: letter–directive of the AFP Chief of Staff to the ground troops; simplified Q&A materials to be issued by the DOLE by July–September 2012 for nationwide dissemination; initial round of nationwide advocacy on the subject by the DOLE, AFP, PNP, Department of the Interior and Local Government, Department of Justice (DOJ), Department of National Defense and the labour sector to be conducted from July to December 2012; inclusion of the labour rights module developed by the ILO into the training programme on human rights of the AFP and the PNP; requirement of PNP/AFP ILO enhanced training module for application or renewal of licence for private security personnel and security guards; and engagement of NTIPC members in the Bantay Bayanihan, a civil society-led oversight initiative on the implementation of the Internal Peace and Security Plan aiming at the reform of security sector institutions and thus extension of its oversight function to include monitoring of respect of labour rights; and
• (vii) the national plan of action 2012–13 towards full freedom of association and collective bargaining rights in the export processing sector concluded by the Government (including DOLE and PEZA) and representatives of national federations of workers’ organizations, which seeks to take steps to achieve improved compliance with the relevant ILO Conventions.

The Committee also notes the information provided by the Government concerning: (1) the NTIPC activity since its establishment and the issuance of NTIPC Resolution No. 3, Series of 2011, recognizing the need to create for the TIPC Monitoring Body a corresponding structure in the RTIPCs and providing that the RTIPCs shall create regional monitoring bodies which shall operate in accordance with the Operational Guidelines of the NTIPC Monitoring Body and ensure observance of international labour standards in the regions, monitor and evaluate complaints and prepare case profiles; (2) the forthcoming establishment of the National Monitoring Mechanism (NMM) led by the Commission on Human Rights, to bring together relevant state agencies and civil society organizations in a credible and inclusive forum for monitoring the nation’s progress in resolving extrajudicial killings and enforced disappearances; (3) the forthcoming establishment of the Presidential Committee for the Prevention and Investigation of Extralegal Killings, Harassments, Intimidation, Torture and Enforced Disappearances, a “super body” intended to replace Task Force 211 and serve as the major government component in the NMM; and (4) the creation of the Special Task Force of the DOJ, which has already started its work, with the mandate to review all unresolved cases of extrajudicial killings and enforced disappearances. The Committee requests the Government to provide information on the operation of this monitoring mechanism.

The Committee further notes the Government’s reply to the ITUC’s 2011 comments referring to certain violations of trade union rights in 2010, including the alleged killing of three trade union leaders (Eduard Panganiban, elected Secretary of the United Strength of Workers in Takata; Benjamin Bayles, organizer of the National Federation of Sugar Workers; and Carlo “Caloy” Rodriguez, President of the Calamba Water District Union), as well as arrests and false criminal charges filed against trade union leaders and physical assaults of striking workers. In particular, the Committee notes the Government’s observations that, according to the NTIPC Monitoring Body, the three cases of alleged extrajudicial killings are being monitored by the Regional Tripartite Monitoring Bodies and the other seven cases of alleged violation of trade union rights were all classified as possibly labour-related and taken cognizance of by the NTIPC Monitoring Body. The Committee hopes that the investigations of these serious allegations will be finalized in the near future with a view to establishing the facts, determining responsibilities and punishing the perpetrators, and requests the Government to provide information on any developments in this regard.

The Committee notes a communication from the ITUC dated 31 July 2012, in which it provides its comments on the application of the Convention in law and in practice. The Committee also notes that the ITUC refers to legislative issues already raised by the Committee, and alleges continuing violations of trade union rights in 2011, including alleged killings of four trade union leaders (Celito Baccay, board member of the Maeno-Giken Workers’ Organization; Noriel Salazar, President of the Union of COCOCHEM; Santos V. Manrique, President of the Boringot Small-scale Miners’ Cooperative and Chairperson of the Federation of Miners Aggrupation; and Elpidio Malinao, Vice-President of the University of the Philippines (UP) Los Banos Chapter of the Organization of Non-Academic Personnel of UP); abduction and arbitrary detention of Elizar Nabas, member of the National Federation of Sugar Workers; and continuing harassment of Remigio Saladero Jr., chief legal counsel of the Kilusang Mayo Uno (KMU). The Committee requests the Government to provide its observations on these serious allegations.

Civil liberties and trade union rights

Human Security Act. The Committee had previously requested the Government to provide information concerning the impact of the Human Security Act on 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 that the Government reiterates that 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. Moreover, based on the inventory of cases of the NTIPC Monitoring Body, there appears to be no case involving trade union leaders or members where such abuse has been raised with respect to its implementation. The Committee also notes the concern expressed by the ITUC that the broad language of the Act leaves it open to abuse against trade unionists by local police and judicial authorities. The Committee trusts that the Government will take all necessary steps to ensure that this Act will not be misused to suppress legitimate trade union activities.

Legislative issues

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 there are currently three bills being prioritized, which seek to amend the Labor Code, and that the NTIPC agreed to constitute the Tripartite Labor Code Review Team (two sector-nominated experts each), which was formed on 12 September 2011 as the external partner in the drafting process. 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 workers 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 Right to Organise and Collective Bargaining Convention, 1949 (No. 98). The Committee notes with interest that, while again invoking the principle of reciprocity, the Government refers to House Bill No. 894, which is currently pending with the Committee on Labor and Employment of the House of Congress and is entitled: An Act Allowing Aliens to Exercise Their Right to Self-Organization and Withdrawing Regulation of Foreign Assistance to Trade Unions, Amending for the Purpose Presidential Decree No. 442, as Amended, Otherwise Known as the Labor Code of the Philippines. The said Bill aims, inter alia, to extend the right to self-organization to aliens in the Philippines. The Government states that this issue is also a subject for consultation relative to the proposed amendments to Department Order No. 40-03. The Committee hopes that the above Bill and any other provisions enabling all workers legally residing in the country to enjoy the trade union rights provided by the Convention will be adopted in the near future. It requests the Government to provide information in its next report on any progress made in this respect.

The Committee recalls that it had previously requested the Government to take the necessary measures to amend section 234(c) of the Labor Code so as to lower the excessive minimum membership requirement for forming an independent union. The Committee notes with interest the Government’s indication that one of the labour bills that is presently being prioritized is an NTIPC-endorsed legislative proposal, entitled: Union Registration Bill or An Act Further Strengthening Workers’ Right to Self-Organization (House Bill No. 5927), which seeks to amend, inter alia, section 234 of the Labor Code, by removing the 20 per cent minimum membership requirement for registration of independent labour organizations, consistent with the Convention. The Bill is now pending with the Committee on Rules of the House of Congress and was reported out for a second reading, whereas its counterpart Bill (Senate Bill No. 2838) is now pending with the Senate Committee on Labor. The Committee hopes that the above Bill removing the 20 per cent minimum membership requirement for establishing an independent workers’ organization will be adopted in the near future. It requests the Government to provide information in its next report on any developments in this regard.

Article 3. Right of workers’ organizations to organize their administration and activities and to formulate their programmes without interference by the public authorities. The Committee had previously requested the Government to take the necessary measures to amend section 263(g) of the Labor Code and Department Order No. 40-G-03 so as to limit governmental intervention resulting in compulsory arbitration to essential services in the strict sense of the term. The Committee notes that the Government states in its report that: (1) under Department Order No. 40-G-03, the Secretary of Labor initiates, at the first instance, motu proprio or upon request by either party to the labour dispute, an intensive conciliation–mediation before the Conciliation and Mediation Office under the Office of the Secretary (created to operationalize the conciliation–mediation at the level of the Secretary of Labor in case the conciliation–mediation before the National Conciliation and Mediation Board failed); (2) the limited recourse to section 263(g) (statistics provided by the Government) is a result of the extensive use of alternative dispute resolution through conciliation–mediation before and after the filing of petition for assumption of jurisdiction by either or both parties, thus indicating the strong political will of the Secretary of Labor not to use the power arbitrarily; (3) in an effort to align the country’s labour laws to the provisions of the Convention, the Assumption of Jurisdiction Bill (An Act Strengthening Workers’ Rights to Peaceful Concerted Activities) seeks to amend, inter alia, section 263 of the Labor Code, so as to limit the automatic issuance of assumption of jurisdiction order by using the “essential services” criterion as a guidepost, whereby the list of industries to be classified as “essential services” shall be determined through tripartite consultation; and (4) the said legislative measure (House Bill No. 5933) is now pending with the House of Congress Committee on Labor and Employment. Its counterpart Bill in the Senate is Senate Bill No. 3210 which is pending for a second reading. The Committee expresses the firm hope that the adopted Bill will be in full conformity with freedom of association principles related to this matter, and requests the Government to indicate any progress made in this respect.

The Committee had previously requested the Government to amend sections 264(a) and 272(a) of the Labor Code, which provided for 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, in an effort to align the country’s labour laws to the provisions of the Convention, the Assumption of Jurisdiction Bill (An Act Strengthening Workers’ Rights to Peaceful Concerted Activities), seeks to amend sections 264 and 272 of the Labor Code by providing that no criminal prosecution under section 264 may be instituted without a final judgment that an illegal strike or lockout has been committed. The Bill (House Bill No. 5933) is now pending with the House Committee on Labor and Employment. The Committee recalls that no penal sanctions should be imposed against a worker for having carried out a peaceful strike, and therefore that measures of imprisonment or fines should not be imposed on any account. Such sanctions could be envisaged only where, during a strike, violence against persons or property, or other serious infringements of penal law have been committed, and can be imposed exclusively pursuant to legislation punishing such acts. The Committee expresses the firm hope that sections 264(a) and 272(a) of the Labor Code will be amended in the near future taking into account the mentioned principles.

Right of workers’ organizations to organize their administration. The Committee 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 noted the Government’s indication that a Bill was currently in preparation that repealed that requirement. The Committee notes that the Government again refers to a Bill (House Bill No. 894), which is currently pending with the House Committee on Labor and Employment and is entitled: An Act Allowing Aliens to Exercise Their Right to Self-Organization and Withdrawing Regulation of Foreign Assistance to Trade Unions, Amending for the Purpose Presidential Decree No. 442, as Amended, Otherwise Known as the Labor Code of the Philippines. The said Bill aims, inter alia, to withdraw both the prohibition of foreign trade union organizations to engage in trade union activities and the regulation of foreign assistance to Philippine trade unions. The Committee hopes that the Bill removing the need for Government permission for foreign assistance to trade unions will be adopted in the near future. It requests the Government to provide information in its next report on any progress made in this regard.

Article 5. Right of organizations to establish federations and confederations. The Committee previously requested the Government to take the necessary measures in order to lower the excessively high requirement of ten union members for the registration of federations or national unions set out in section 237(a) of the Labor Code. The Committee notes with interest the Government’s indication that the NTIPC-endorsed legislative proposal entitled: Union Registration Bill or An Act Further Strengthening Workers’ Right to Self-Organization, also seeks to amend section 237 of the Labor Code, by reducing the required ten local unions to five for the registration of federations, consistent with the Convention, and that House Bill No. 5927 is now pending with the House Committee on Rules and was reported out for a second reading. The Committee hopes that the above Bill lowering the excessively high requirement for registration of federations or national unions set out in section 237(a) of the Labor Code will be adopted in the near future. It requests the Government to provide information in its next report on any developments in this respect.

Lastly, the Committee previously hoped 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 notes from the Government’s report that the prioritization of relevant labour reform bills is being worked on, and that, pursuant to the Presidential Directive to align the country’s labour policies with international treaties and ILO Conventions in a sound and realistic manner, an orientation on international labour standards and current legislative reforms towards Philippine compliance was conducted on 17 July 2012 for members of the DOLE Technical Committee on Legislative Matters and technical assistants of legislators. The Committee once again expresses the firm hope that the undertaken legislative reform will bring the aforementioned legislative provisions into full conformity with the Convention. It requests the Government to provide in its next report information on the outcome of this reform and copies of the relevant legislative texts once adopted.