Effect given to the recommendations of the committee and the Governing Body - Report No 376, October 2015

Case No 2652 (Philippines) - Complaint date: 12-MAY-08 - Follow-up

Effect given to the recommendations of the Committee and the Governing Body

1. 103. The Committee last examined this case at its October 2013 meeting [see 370th Report, paras 88–92]. The present case concerns the alleged failure of the Government to secure the effective observance of Conventions Nos 87 and 98, with respect to several allegations of infringements of the rights to organize and collective bargaining on the part of Toyota Motor Philippines Corporation (TMPC), such as interference in the trade union’s establishment and activities, refusal to bargain collectively despite the certification of the union as the sole and exclusive bargaining agent, anti-union discrimination through the dismissal of union members further to their participation in union activities and strike action. During the last examination of the case, the Committee noted with satisfaction the final court judgment which had permanently dismissed, on 28 May 2013, the criminal cases against several Toyota Motor Philippines Corporation Workers’ Association (TMPCWA) union officers and members, had directed the parties to live in peace and not to take any retaliatory action against each other, and had ordered the cancellation of any arrest warrants issued against the accused. Furthermore, the Committee understood that the complainant was addressing its claims (for reinstatement or payment of adequate compensation to approximately 100 workers) to the Department of Labor and Employment (DOLE), and trusted that the Government would continue to do its utmost to intercede with the parties with a view to reaching, in the near future, an equitable and mutually satisfactory negotiated solution in this longstanding case.
2. 104. In its communication dated 11 October 2014, the complainant states that in December 2013 and April 2014 it launched and conducted the “Shame on Toyota” campaign and held a series of protests aimed at pushing the company to respect the Committee’s recommendations. The complainant alleges that these campaigns resulted in a series of harassment incidents and threats against TMPCWA President, Ed Cubelo, that were most probably perpetrated by the company. The TMPCWA further alleges that, in March 2014: (i) people who introduced themselves as agents from the National Bureau of Investigation (NBI) visited Ed Cubelo’s house and menaced the trade union leader; (ii) other agents and police intelligence persons were seen conducting surveillance in some of the TMPCWA’s protest actions; and (iii) state forces from the Criminal Investigation Division (CID) visited Ed Cubelo’s house, talked to his family and left a message saying Ed Cubelo should report to the CID’s Office in the Makati Police station. The complainant indicates that, in response to the harassment, letters have been sent to DOLE and to the Department of Justice to inform them about the incidents and to seek help.
3. 105. In relation to the claim for reinstatement or payment of adequate compensation to the dismissed workers, the complainant asserts that DOLE, acting in line with the November 2012 and October 2013 recommendations, made genuine efforts to reach out to the company and to persuade it to cooperate in finding an adequate and equitable solution to the longstanding labour dispute but that despite these efforts, the company did not show any sign of cooperation and blatantly continued to ignore the Committee’s recommendations. Concerning the amount of compensation due to the dismissed workers, the complainant indicates that it communicated to DOLE its view that compensation should be granted to all 233 workers and should be based on indemnification according to the TMPCWA’s interpretation of the terms “equitable negotiated solution” and “adequate compensation” used in the Committee’s November 2012 recommendation.
4. 106. Concerning the dismissal of four union members arising out of an incident that occurred in June 2010, the complainant indicates that on 7 August 2014, the dismissed members filed a petition to the Supreme Court for review on certiorari of the decision and resolution of the Court of Appeals issued on 15 January 2014 and 2 June 2014, both favouring the company by validating the dismissal and declaring that there was no unfair labour practice on the respondent’s part.
5. 107. In its communication dated 12 May 2015, the Government indicates that most of the Committee’s recommendations and requests had already been addressed. In relation to the complainant’s claim for reinstatement or payment of adequate compensation to approximately 100 workers who had not previously accepted the compensation package offered by the company, the Government remarks that while the company has been firm that reinstatement is not possible since the Supreme Court has ruled with finality on the validity of the dismissal and non-entitlement to severance pay of the dismissed workers, it has offered financial assistance to the dismissed workers and out of the 233 dismissed union members, 158 have allegedly individually requested and accepted the assistance package. The Government further asserts that it continuously engaged with both the union and the company, through DOLE, to search for an equitable and mutually satisfactory solution to the current dispute, pursuant to the Committee’s October 2013 recommendation. The Government explains that initially the dismissed union members, through Ed Cubelo, requested the payment of a 1 billion Philippine peso (PHP) (US$21,387,725) settlement package to compensate for the back pay and separation pay of all 233 dismissed workers and cost of litigations, while the company only manifested readiness to release the checks to those dismissed workers who had not previously received the assistance package, with the total amounting to more than PHP8 million ($171,102). According to the Government, the union insisted that the offered assistance did not satisfy the Committee’s recommendation as to the payment of “adequate compensation”, proposed a reduced monetary package settlement of PHP600 million ($12,832,635) and manifested the willingness to negotiate further. The Government also specifies that DOLE communicated the reduced proposal to the company but the management maintained that given the finality of the decision of the Supreme Court, their gesture of offering financial assistance to the dismissed workers should already be considered as satisfactory and urged DOLE to exert further efforts aimed at resolving the issue of financial assistance for the remaining 75 workers who had not previously claimed the assistance package.
6. 108. The Government further states that, aside from shepherding the discussions on the monetary settlement, DOLE also presented to both parties the idea of setting up a Livelihood Project that would benefit workers, where the company and DOLE shall defray the financial requirements of the same on a 50-50 basis, each providing an amount not exceeding PHP500,000 ($10,694). Both the union and the company were open to the said proposal with some reservations on the company’s part, stemming from the concern on how such a project would be managed to ensure that all affected workers benefit from it. The company expressed the belief that the management and the implementation of such a project should redound to the benefit of all concerned former employees and reiterated its openness in setting up the said Livelihood Project. In connection with this out-of-the-box settlement effort, the Government indicates that DOLE is currently trying to locate and communicate with the dismissed workers to verify their employment or livelihood and possible assistance to be extended. DOLE obtained information that 102 of the dismissed workers have found re-employment abroad after their separation and others are locally employed or self-employed. The Government assures the Committee that it is continuously exerting efforts to find out-of-the-box options for an equitable solution to this issue.
7. 109. The Committee notes the detailed information provided by the complainant as well as the Government’s reply. In relation to the claim for reinstatement or payment of adequate compensation to the dismissed workers who had not previously accepted the compensation package offered by the TMPC, the Committee welcomes the Government’s out-of-the-box settlement initiative to set up a Livelihood Project equally financed by the Government and the company that would benefit all dismissed workers and invites the Government to keep it informed of any developments in this regard.
8. 110. Regarding the dismissal of four union members, two of which were union officials, arising out of an incident that occurred in June 2010, the Committee had previously observed that there was a divergence of views between the complainant and the company with respect to the legality and anti-union character of the dismissals. The Committee notes that on 15 January 2014 and 2 June 2014, the Court of Appeals confirmed the dismissals due to serious misconduct and that on 15 October 2014, the Supreme Court issued a resolution denying the petition for review on certiorari filed by the four workers against the decision and resolution of the Court of Appeals. In light of these judicial decisions and absent additional information from the complainant or the Government, the Committee, emphasizing that it does not have sufficient elements at its disposal to deduce an anti-union character of the dismissals, will not pursue the examination of this allegation.
9. 111. Finally, the Committee expresses deep concern over the new allegations of harassment, intimidation and threats experienced by TMPCWA President, Ed Cubelo, especially the dispatch of persons who presented themselves as agents from the NBI to the President’s house and a visit to his house from the CID forces. The Committee notes the complainant’s view that the harassment incurred by the President is the result of the complainant organization’s continued protest actions against the company, and observes with regret that the Government did not provide any information in this regard. The Committee firmly expects that the Government will conduct an expeditious investigation into these serious allegations and requests it to take all necessary measures to ensure that freedom of association may be exercised by the complainant, its members and officials, in a climate free from violence, harassment and threats of intimidation of any kind, and to keep it informed of the progress made in this regard.