Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

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

The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 20 and 29 September 2021, referring to matters addressed below, denouncing a deteriorating situation in the country and requesting the Committee to consider an out-of-cycle review of the application of the Convention by the Philippines. The Committee requests the Government to provide its reply thereto.

Given the urgency of the matters and the questions of life, personal safety and fundamental human rights raised therein, as well as up-dated information on the Committee’s previous observations submitted by the Government in June 2021, the Committee decided to proceed to an examination of the application of the Convention by the Philippines outside of the regular reporting cycle.

Action plan to implement the 2019 Conference Committee conclusions and achieve full compliance with the Convention. High-level tripartite mission. In its previous comment, the Committee noted the discussion that took place in the Conference Committee on the Application of Standards (Conference Committee) in June 2019 concerning the application of the Convention and observed that the Conference Committee called upon the Government to: (i) take effective measures to prevent violence in relation to the exercise of workers’ and employers’ organizations’ legitimate activities; (ii) immediately and effectively undertake investigations into the allegations of violence in relation to members of workers’ organizations with a view to establishing the facts, determining culpability and punishing the perpetrators; (iii) operationalize the monitoring bodies, including by providing adequate resources, and provide regular information on these mechanisms and on progress on the cases assigned to them; and (iv) ensure that all workers without distinction are able to form and join organizations of their choosing in accordance with Article 2 of the Convention. The Committee further noted the Government’s request for guidance on giving effect to these conclusions, expressed trust that, as soon as the situation so permitted, the Government would receive a high-level tripartite mission, as requested by the Conference Committee, and reminded the Government that, in the meantime, it could avail itself of the technical assistance of the Office, including in order to elaborate a plan of action, detailing progressive steps to be taken to achieve full compliance with the Convention.

The Committee notes the Government’s indication that in an April 2021 communication to the ILO the Government expressed its intention to accept a high-level mission as a sincere gesture of its continuing commitment under international instruments and of its enduring partnership with the ILO in upholding the fundamental rights of workers. However, due to the ongoing global health crisis, the Government was not yet inclined to accept an in-person mission and considered conducting a virtual one. The Committee observes that due to the COVID-19 pandemic, the high-level tripartite mission has not yet taken place but that, in view of the Government’s request for guidance in respect of the application of the 2019 Conference Committee’s conclusions, a virtual exchange was organized by the Office in September 2021 between the Government, national social partners and designated representatives from the workers’ and the employers’ groups of the Conference Committee, in order to clarify any outstanding confusion in respect of the Conference Committee’s conclusions and to assist the Government and the social partners to take effective action for their implementation. The Committee notes that the report of the virtual exchange was circulated to all the parties that met and was submitted to the Committee by the ITUC, as additional observations to its earlier submission requesting an out-of-cycle examination of the application of the Convention, and was also transmitted to the Government. The Committee observes that the report of the virtual exchange concluded that despite measures undertaken and further commitments by the Government, as well as the existence of a number of institutions and strong support from the ILO and other partners, the discussion failed to bring forward evidence of tangible progress on the four areas of concern highlighted by the Conference Committee and that the Government should therefore adopt a time-bound plan of action in consultation with the social partners and with support from the ITUC and the International Organization of Employers (IOE) to address each of the four areas of concern. The report also emphasized that the virtual exchange was not a replacement for a mission, that there continued to be a pressing need for a high-level tripartite mission to travel to the Philippines and that it would be critical for the mission to take place before the 2022 International Labour Conference, taking into account the sanitary conditions prevailing in the country. In these circumstances and given the continuing urgency of the matters raised, as denounced by the trade unions below, the Committee calls on the Government to elaborate a plan of action, in consultation with the social partners, detailing progressive steps to be taken to implement the conclusions of the 2019 Conference Committee and to achieve full compliance with the Convention. The Committee reminds the Government of the possibility to avail itself of ILO technical assistance in this regard. The Committee also expects that the high-level tripartite mission will be able to visit the country before the next International Labour Conference, taking into account the sanitary conditions in the country.

Civil liberties and trade union rights

2019 and 2020 ITUC observations and 2019 Education International (EI) observations. In its previous comment, the Committee noted with deep concern the grave allegations of violence and intimidation of trade unionists communicated by the ITUC in 2019 and 2020 and EI in 2019, as well as the Government’s detailed reply thereto, and expressed trust that all of these allegations would be duly investigated and perpetrators punished to effectively prevent and combat impunity. The Committee notes that the Government reiterates previously provided information on the measures taken to address the above allegations and on the domestic remedies available to victims of human rights violations and adds minor updates on the status of the investigations in some of the cases. With regard to the allegations of red-tagging, it indicates that Senate Bill No. 2121 (seeking to fix legal gaps and institutionalize a system of accountability by criminalizing red-tagging and providing penalties as deterrence thereto) was filed in March 2021. The Committee welcomes this initiative and requests the Government to provide information on the progress made in the adoption of Senate Bill No. 2121. It expects that the grave allegations of violence and intimidation referred to above will be duly investigated and perpetrators punished to effectively prevent and combat impunity and requests the Government to provide updated information in this respect.

2020 joint observations of EI, the Alliance of Concerned Teachers (ACT) and the National Alliance of Teachers and Office Workers (SMP-NATOW). In its previous comment, the Committee requested the Government to provide its reply to the 2020 joint EI, ACT and NATOW observations, denouncing extra-judicial killings of eight trade unionists in the education sector and other serious violations of civil liberties, as well as challenges in the application and implementation of the right to freedom of association. The Committee takes due note of the Government’s reply in this regard and regrets to observe that, while quite extensive, it is limited to general statements on the domestic remedies available against violations of human and trade union rights, to refuting the allegations that unionism is equated to communism and to indicating in general that the cases were subjected to monitoring by the Regional Tripartite Monitoring Bodies (RTMBs) and proceed under the regular process of criminal investigation, prosecution and litigation. In view of the lack of details on the progress made in investigating the concrete and serious allegations of violence set out in detail in the 2020 joint EI, ACT and NATOW observations, the Committee expects the Government to ensure that all measures are being taken to address these specific incidents, in particular that they are properly investigated, so as to establish the facts, determine culpability and punish the perpetrators. The Committee requests the Government to provide information on the measures taken in this respect and on the progress in investigations.

New allegations of violence and intimidation. 2021 ITUC observations. The Committee notes that, in its latest communication, the ITUC denounces a severely deteriorating situation in the country since 2019, characterized by increased repression against the independent trade union movement and extreme violence against and persecution of unionists, including extra-judicial killings, physical attacks, red-tagging, threats, intimidation, harassment, stigmatization, illegal arrests, arbitrary detention and raiding of homes and union offices, as well as the Government’s institutional failure to address these issues, exacerbating the culture of impunity. The ITUC also alludes to the adoption of additional measures, allegedly worsening the situation of trade unions in the country, including: the establishment of the National Task Force to End Local Communist Armed Conflict (NTF-ELCAC); the creation of the Joint Industrial Peace and Concern Office (now referred to as the Alliance for Industrial Peace and Program Office (AIPPO)) in export-processing zones; the adoption of the Anti-Terrorism Act, 2020; and abuse in the use of judicial search warrants. According to the ITUC, the above situation leads to a climate of pressure and fear, exposing workers engaged in trade union activities to imminent danger and undermining the ability of workers to exercise the rights guaranteed by the Convention.

The Committee notes with deep concern these grave allegations, as well as the following concrete incidents denounced and described in great detail by the ITUC: (i) the extra-judicial killing of 10 trade unionists (some of whom were mentioned in previous observations of the trade unions); (ii) at least 17 cases of arrests and detention, in particular following police dispersal of a protest and police raids on union offices and unionists’ homes (November-December 2020 and March 2021), as well as additional incidents of arrests and detention since 2019; (iii) 17 cases of red-tagging, intimidation and harassment, including against leaders and members of the ACT, the Kilusang Mayo Uno (KMU), the Philippines National Police Non-Uniformed Personnel Association Inc. (PNP-NUPAI) and other workers’ organizations; and (iv) 12 cases of forced disaffiliation campaigns and seminars, including for public school teachers, workers at a beverage producing company and palm oil plantation workers. The Committee observes in this regard that, when examining Case No. 3185 concerning the Philippines, the Committee on Freedom of Association also expressed deep concern at the gravity of similar allegations, as well as their repeated and prolonged nature, resulting in a climate of violence and impunity with an extremely damaging effect on the legitimate exercise of trade union rights in the country, and expressed trust that the Government would prioritize investigation into these serious incidents (see 396th Report, November 2021, Case No. 3185, paragraphs 524–525 and 528(b)). In these circumstances, given the extreme seriousness of the allegations and their repeated nature, the Committee urges the Government to take all necessary measures to address the issues of violence and intimidation raised and, in particular, to conduct prompt and effective investigations into all allegations of extra-judicial killings of and assaults against trade unionists, so as to determine the circumstances of the incidents, including any links to trade union activities, determine culpability and punish the perpetrators. The Committee requests the Government to provide detailed information in this respect.

Pending cases of alleged killings of trade union leaders. For several years, the Committee has been requesting the Government to ensure that the investigations into the killings of trade unionists Rolando Pango, Florencio “Bong” Romano and Victoriano Embang are completed to shed full light on the facts and the circumstances in which such actions occurred and, to the extent possible, determine responsibilities, punish the perpetrators and prevent the repetition of similar events. Observing with regret that the Government simply reiterates that the cases are being handled through the regular course of criminal investigation and prosecution, without providing details as to any progress made, the Committee reiterates its previous request and expects the Government to be in a position to report substantial progress in this regard.

Monitoring mechanisms. In its previous comment, the Committee requested the Government to take the necessary measures to ensure that all of the existing monitoring mechanisms can function properly and efficiently, so as to contribute to effective and timely monitoring and investigation of allegations of extra-judicial killings and other forms of violence against trade union leaders and members. The Committee notes the Government’s indication that: (i) to help ensure that the RTMBs are able to carry out their mandate, mediator-arbiters from the Department of Labour and Employment (DOLE) regional offices were designated to act as focal persons in their respective RTMBs and are tasked to assist in the processing of cases so as to provide more responsive and inclusive reports; (ii) as for the Tripartite Validating Teams, their establishment is case-based when there is a need for further validation or review, but in addition to the previously mentioned challenges concerning security of its members, it is currently not advisable to create such teams given the health risks relating to the COVID-19 pandemic; (iii) the operationalization of the Administrative Order No. 35 Inter-Agency Committee (AO35 IAC) was affected by leadership and administrative changes within the Department of Justice and the secretariat has also undergone leadership changes, as a result of which it is now more active in engaging with tripartite monitoring bodies and the concerned groups and organizations in the deliberation of cases; (iv) the Secretary of Labour and Employment is an observer in AO35 IAC meetings, as well as its technical working group (TWG) meetings; (v) the AO35 secretariat welcomes ILO training programmes which aim at incorporating a labour perspective into the work of the AO35 secretariat and the TWG and at showing the relevance of the principles of freedom of association and collective bargaining for their work; (vi) one of the trainings resulted in the identification of strategies for better handling of cases involving workers and trade unions, which may be considered as policy recommendations in the ongoing review of the AO35 operational guidelines; and (vii) the investigation into the case of Dennis Sequeña, previously referred to by the Government and the social partners, was closed due to difficulties in convincing the family of the victims to cooperate but the AO35 task force will look into other avenues to continue its investigation. While taking due note of the Government’s information, the Committee regrets that despite a number of initiatives undertaken, trade unions continue to raise concerns as to numerous allegations of violence perpetrated against trade union members for which the presumed perpetrators have not yet been identified and the guilty parties punished. In view of the above, the Committee trusts that the review of the operational guidelines of the monitoring mechanisms will be completed without delay and, together with the above adjustments, will contribute to ensuring the full operationalization of all existing monitoring mechanisms so that they can function properly and efficiently. Further noting the call of the trade unions for full operationalization and strengthening of the existing monitoring and investigative mechanisms, the Committee requests the Government to continue to take all necessary measures to this effect, including allocating sufficient resources and staff and providing all necessary security to these personnel, in order to ensure effective and timely monitoring and investigation of all pending labour-related cases of extra-judicial killings and other violations against trade union leaders and members. The Committee also requests the Government to continue to provide detailed information on the progress made by the existing monitoring mechanisms in ensuring the collection of the necessary information to bring the pending cases of violence to the courts.

Measures to combat impunity. Training. The Committee previously encouraged the Government to continue to provide regular and comprehensive training to all concerned State actors in relation to human and trade union rights, as well as on the collection of evidence and the conduct of forensic investigation. The Committee notes the Government’s indication that several ongoing projects, including the EU-GSP Trade for Decent Work Project, allow for participation of various government offices, aim at strengthening social dialogue and better application of international labour standards and focus on the principles of freedom of association and the right to collective bargaining, as well as occupational safety and health in the context of the COVID-19 pandemic. According to the Government, these projects involve activities that will help improve the monitoring and investigative mechanisms for resolution of labour-related cases and improve national laws and policies on freedom of association and collective bargaining based on ILO Conventions. Welcoming the above information, the Committee encourages the Government to continue to pursue its efforts in terms of training and capacity-building of State actors, with the aim of increasing the investigative capacity of the concerned officials and providing sufficient witness protection, and ultimately contributing to combating impunity.

Measures to combat impunity. Pending legislative matters. The Committee previously noted that the Committee on Freedom of Association referred a number of legislative aspects to this Committee and requested the Government to provide information on the progress made in: (i) the adoption of the Bill concerning enforced and involuntary disappearances; and (ii) the previously announced review by the Supreme Court and the Commission on Human Rights of the witness protection programme on the writ of amparo adopted in 2007, as well as of the application of the Anti-Torture Act No. 9745 and of Act No. 9851 on crimes against international humanitarian law, genocide and other crimes against humanity. The Committee notes the Government’s indication that to date, House Resolution No. 392 (calling for justice for the victims and to urge the House Committee on Human Rights to investigate, in aid of legislation, the spate of enforced disappearances in the country) was filed in October 2019 and is currently pending with the Committee on Rules. The Government adds that in March 2021, the Supreme Court announced a five-week information gathering on the extent of threats against lawyers, after which it will decide on the next course of action. Taking due note of the above, the Committee requests the Government to continue to provide information on any developments with respect to all pending legislative matters referenced above.

Anti-Terrorism Act. In its previous comment, having noted the concerns expressed by the ITUC over the adoption of the Anti-Terrorism Act, 2020, which it alleged aimed at silencing dissenting voices and further entrenched State repression and hostility against workers and trade unionists, the Committee requested the Government to provide information on any aspects of implementation of the Act that affect trade unionists or trade union activities. Observing with concern that, according to the information contained in the ITUC communication, the law has been used to label trade unions, such as COURAGE and ACT, as terrorist organizations, the Committee reiterates its previous request in this regard and requests the Government to take any necessary measures to ensure that the Act does not have the effect of restricting legitimate trade union activities.

Legislative issues

Labour Code. In its previous comments, the Committee had been noting the numerous amendment bills pending before Congress over many years and in various forms with a view to bringing the national legislation into conformity with the Convention. Considering that the Government does not provide any updated information and fails to show any substantial progress in the adoption of the numerous amendment bills, the Committee reiterates all of its previous comments and requests in this respect and expects the Government to be in a position to report progress on this matter.

The Committee further reiterates its comments contained in the 2020 request addressed directly to the Government.