Interim Report - Report No 364, June 2012

Case No 2745 (Philippines) - Complaint date: 30-SEP-09 - Follow-up cases closed due to the absence of information from either the complainant or the Government in the last 18 months since the Committee examined the cases

Allegations: The complainant alleges the implementation of an unofficial “no union, no strike” policy by the Philippines Export Processing Zones Authority (PEZA), in collusion with local and national government agencies. Elements of the anti-union policy include: illegal dismissal of trade unionists; restrictive union registration processes; the closure of companies to obstruct union formation and collective bargaining; interference by local government authorities in union affairs; and violation of civil liberties – including assaults, threats, intimidation, harassment, blacklisting, criminalization, abduction and murder of trade unionists

1. 971. The Committee last examined this case at its June 2011 meeting, when it presented an interim report to the Governing Body (360th Report, paras 1030–1082, approved by the Governing Body at its 311th Session (June 2011)).
2. 972. The Government forwarded its observations in communications dated 1 June 2011 and 5 March 2012.
3. 973. The Philippines has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98)

A. Previous examination of the case

1. 974. At its June 2011 session, in the light of the Committee’s interim conclusions, the Governing Body approved the following recommendations:
   • (a) The Committee deplores the gravity of the allegations in this case. It notes however the Government’s indication that actions have been taken in key areas of concern, notably to address the issue of impunity and exploring “out of the box” solutions to the long standing cases.
   • (b) As regards the alleged interference by the public authorities, the Committee:
     • (i) notes the Government’s indication that a legislative reform to further strengthen trade unionism and remove obstacles to the effective exercise of labour rights has been progressing as committed to by the Government in response to the ILO High level Mission in October 2009 and requests the Government to keep it informed in this regard and to indicate the specific measures envisaged to ensure the full and effective exercise of labour rights in EPZs;
     • (ii) requests the Government to take the necessary measures to ensure that public authorities do not intervene in relation to the internal affairs of trade unions;
     • (iii) requests the Government to keep it informed of the investigations conducted by the CHR;
     • (iv) understands from the information provided by the Government that these cases were scheduled to be discussed by the TIPC in the first quarter of 2011 and urges the Government to indicate the progress made by the TIPC in these cases without delay.
   • (c) As regards the alleged anti-union discrimination, the Committee:
     • (i) requests the Government to keep it informed of the investigations conducted by the CHR and requests the Government to indicate the progress made by the TIPC with respect to these various cases;
     • (ii) urges the Government, should the allegations concerning the 2007 reinstatement order be true, to ensure that the union members who were dismissed by Enkei Philippines are reinstated immediately in their jobs under the same terms and conditions prevailing prior to their dismissal with compensation for lost wages and benefits, in conformity with the order for reinstatement; requests the Government to keep it informed of any developments in this regard and to indicate the progress made by the TIPC in this case;
     • (iii) noting the contradictory information provided by the parties in the case of Sun Ever Lights, requests the Government to review this matter and keep it informed of developments and to indicate the progress made by the TIPC in this case;
     • (iv) requests the Government to carry out independent investigations in respect of the other abovementioned allegations of illegal dismissals and, if it finds that they constitute anti-trade union acts, to take measures to ensure the reinstatement of the workers concerned; if reinstatement is not possible, the Government should ensure that the workers concerned are paid adequate compensation which would represent a sufficient dissuasive sanction for anti-trade union dismissals. The Committee requests the Government to keep it informed of the investigations conducted by the CHR and to indicate the progress made by the TIPC in these cases;
     • (v) urges the Government to keep it informed of any judgment handed down by the NLRC RAB VII or the NLRC Division 4 in Cebu City in the case of ANGLO-KMU.
   • (d) With respect to the alleged denial of the right to strike, the Committee requests the Government to keep it informed of the ongoing legislative reform and expects that the Government will take the necessary measures to ensure the full respect for the trade unions rights of EPZ workers. It further asks the Government to indicate the progress made by the TIPC with respect to the cases revised.
   • (e) As regard the alleged blacklists, the Committee requests the Government to keep it informed of the investigation conducted by the CHR and to indicate the progress made by the TIPC with respect to the cases revised.
   • (f) The Committee requests the Government to establish an independent judicial inquiry and proceedings before the competent courts as soon as possible with regard to the allegations of abductions, disappearances and killing of a protester, with a view to shedding full light onto the relevant facts and circumstances, and to determine where responsibilities lie, punish the guilty parties and prevent the repetition of similar events. The Committee requests to be kept informed in this respect and requests the Government to indicate the progress made by the TIPC in relation to these cases.
   • (g) The Committee requests the Government to take all necessary measures for an independent investigation to be carried out into the various incidents of harassment and the militarization of the workplace, alleged by the complainant, with a view to identifying and punishing those responsible without further delay. It requests the Government to keep it informed in this regard and to indicate the progress made by the TIPC in these cases.
   • (h) The Committee further requests the Government to give adequate instructions to the law enforcement authorities so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations and to bring to an end any continuing military presence inside the workplaces and requests to be kept informed of any developments in relation to the revised DOLE–PNP–PEZA guidelines in the conduct of PNP personnel, economic zone police and security guards, company security guards and similar personnel during labour disputes.
   • (i) With respect to the alleged arrests and detentions, the Committee:
     • (i) requests the Government to communicate the texts of any judgments handed down in relation to: the charges brought against Pamantik-KMU Chairman Romeo Legaspi and other union officers; the detention of five injured protesters at Asia Brewery; the criminal case against Christopher Capistrano, Vice-President of AMIHAN-Independent; the charges against Ricardo Cahanap, union Vice President of Phils. Jeon, and 33 leaders of Chong Won and Phils. Jeon workers’ union; the charges against 25 union officers and members of GWFPWO-Independent; and the arrest and detention of Declard Cangmaong;
     • (ii) requests the Government to ensure that all relevant information is gathered in an independent manner so as to shed full light on their situation and the circumstances surrounding their arrest and, should it be determined by the court that they were arrested in relation to their trade union activities, requests the Government to take the necessary measures to ensure that they are immediately released and all charges dropped;
     • (iii) requests the Government to keep it informed of the investigations conducted by the CHR and to indicate the progress made by the TIPC in these cases and to provide information on all alleged cases.
   • (j) The Committee draws the special attention of the Governing Body to the extreme seriousness and urgent nature of the matters dealt with in this case.

B. The Government’s reply

1. 975. In its communication dated 1 June 2011, the Government provides detailed information from all concerned parties, which has been gathered for consideration by the Tripartite Industrial Peace Council (TIPC), and indicates that it will provide further information on developments by the end of the year.
2. 976. In its communication dated 5 March 2012, the Government refers to a list of 17 cases of trade union rights violations that allegedly transpired within the economic zones reported by the KMU in its complaint. The Government indicates that the Monitoring Body of the National Tripartite Industrial Peace Council (National TIPC-Monitoring Body), through Resolution No. 8, Series of 2012, classified all cases as possibly labour-related under Convention No. 87, given that the circumstances of the cases apparently constitute an infringement of the exercise of freedom of association and the right to organize. The Government further states that, aside from one case, which the National TIPC-Monitoring Body recommended for closure on the ground of settlement, all other cases were referred to the concerned agencies (Court of Appeals, National Labour Relations Commission (NLRC), Commission on Human Rights (CHR), Philippine Economic Zone Authority (PEZA), Department of Labor and Employment (DOLE), Department of Interior and Local Government (DILG), Supreme Court and Department of Justice (DOJ)) for appropriate action and immediate resolution. Progress on these cases will be submitted as soon as available.

C. The Committee’s conclusions

1. 977. The Committee notes that the present case concerns allegations of the denial of the right to organize, strike and collective bargaining in the Philippines export processing zones (EPZs), special economic zones, industrial enclaves and related areas due to the implementation of an unofficial “no union, no strike” policy by the PEZA, in collusion with the local and national government agencies. Elements of anti-union policy include allegations of: illegal dismissal of trade unionists; restrictive union registration processes; the closure of companies to obstruct union formation and collective bargaining; interference by local government authorities in union affairs; and violation of civil liberties – including assaults, threats, intimidation, harassment, blacklisting, criminalization, militarization, abduction and murder of trade unionists in more than 15 different companies.
2. 978. The Committee notes that according to the Government, while the KMU had conveyed interest in participating in the National Tripartite Industrial Peace Council (TIPC) and the National TIPC-Monitoring Body and was to be appointed to the Technical Executive Committee (TEC), recent developments appear to have brought about a change in its position in so far as the KMU has declined to participate in the formally reconstituted national TIPC including at the TEC level; but the invitation stands. The Committee notes that the Government further states that the KMU was provided with the recently undertaken comprehensive inventory of the cases mentioned in the complaint and requested to provide additional information. Noting the efforts made by the Government to involve the KMU, the Committee expects that the Government will continue to engage with the KMU in dealing with cases involving its members and leaders and invites the complainant organization to cooperate as far as possible with the Government to this end. The Committee requests to be kept informed in this respect.
3. 979. The Committee notes the Government’s indication that the National TIPC-Monitoring Body, through Resolution No. 8, Series of 2012, classified all cases reported by the KMU as possibly labour related under Convention No. 87, given that the circumstances of the cases apparently constitute an infringement of the exercise of freedom of association and the right to organize.
4. 980. The Committee also notes that some issues raised by the complainant are being addressed in Case No. 2528 and were previously examined by the Committee in its 359th Report, paragraphs 1093–1134. These elements, which will not be raised in the present case, concern: (i) the abduction of Normelita Galon and Aurora Afable, President and Shop Steward of Kaisahan ng Manggagawa sa Phils. Jeon Inc. – Independent on 5 August 2007; and (ii) arrest and detention of Romeo Legaspi, Chairman of PAMANTIK-KMU, and other union officers.

Interference by the public authorities

1. 981. The Committee notes the Government’s indication that, in the framework of the legislative reform to further strengthen trade unionism and remove obstacles to the effective exercise of labour rights, the TIPC endorsed the Strengthening Workers’ Rights to Self-Organization Bill, which removes the 20 per cent minimum membership for registration of independent labour organizations, reduces the required membership of local unions for federation registration, and removes the required government authorization on receipt of foreign funding. The Committee requests the Government to keep it informed on any progress made towards the adoption of the Bill.
2. 982. As regards its previous recommendation that the Government indicate the specific measures envisaged to ensure the full and effective exercise of labour rights in the EPZs, the Committee notes with regret that the Government provides no information in this respect. Recalling that the ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy provides that special incentives to attract foreign investment should not include any limitation of the workers’ freedom of association or the right to organize and bargain collectively, and considering that legal provisions on EPZs should ensure the right to organize and bargain collectively for workers [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 266], the Committee once again requests the Government to indicate the concrete steps taken or envisaged to guarantee the full and effective exercise of trade union rights in the EPZs.
3. 983. Concerning the concrete allegations of interference of Local Government Units into internal union affairs at the Nagkakaisang Manggagawa sa Hoffen Industries-OLALIA factory (Hoffen), Samahan ng Manggagawa sa Mariwasa Siam Ceramics, Inc. (Siam Ceramics), Golden Will Fashion and Samahan ng Manggagawa sa EDS Mfg, Inc. (EDS Inc.), the Committee notes that the Government indicates that these cases were referred to the concerned agencies (Court of Appeals, NLRC, CHR, PEZA, DOLE, DILG, Supreme Court and DOJ) for appropriate action and immediate resolution. The Committee requests the Government to keep it informed of the motu proprio investigations that were to be conducted into these allegations by the CHR and expects that the Government will soon be able to report progress in the resolution of these cases. Recalling that respect of principles of freedom of association requires that the public authorities and employers exercise great restraint in relation to intervention in the internal affairs of trade unions [see Digest, op. cit., para. 859], the Committee requests the Government to take all the necessary measures to ensure full respect of this principle.

Anti-union discrimination

1. 984. With respect to the complainant’s allegations that on various occasions, companies in the EPZs closed down either the whole company or strategic departments where most unionists were located following the recognition of a union (in particular Goldilocks, Sensuous Lingerie and Golden Will Fashion Philippines), the Committee notes the information provided by the Government that these cases were referred to the concerned agencies (Court of Appeals, NLRC, CHR, PEZA, DOLE, DILG, Supreme Court and DOJ) for appropriate action and immediate resolution.
2. 985. Considering that, while the genuine closure or restructuring of companies is not contrary to freedom of association principles, the closure or restructuring and the lay-off of employees specifically in response to the exercise of trade union rights is tantamount to the denial of such rights and should be avoided, the Committee urges the Government to ensure that the Labor Code, which governs the relationship between labour and management in the registered enterprises in the EPZs, is applied in practice. The Committee requests the Government to provide information concerning the motu proprio investigations conducted by the CHR and expects that the Government will make efforts to ensure a speedy resolution of the above cases by the agencies concerned. It requests the Government to keep it informed in this regard.
3. 986. As regards the allegations of anti-union discrimination and more particularly of illegal dismissals of trade union members in the enterprises Daiho Philippines Inc., Hanjin Garments, Asia Brewery, Nagkakaisang Manggagawa sa Chong Won (NMCW) and Anita’s Home Bakeshop, the Committee notes the information provided by the Government concerning the last company, in which the management indicates that: (i) the dismissals of Perez and the 28 other employees were declared valid and legal by the NLRC, duly affirmed by the Court of Appeals and the Supreme Court; (ii) as regards the case of Bela and Lacerna, the company appealed the Court of Appeals decision to the Supreme Court; the ultimate judgment as to the validity of their dismissal still has to be passed upon by the High Court; and (iii) Bela and Lacerna were dismissed under the closed shop provision of the collective agreement between the company and the TPMA on the ground of expulsion from the union; and the remaining 29 employees were dismissed for staging an illegal strike in October 2004 and committing illegal acts in the process.
4. 987. Furthermore, the Committee notes the information forwarded by the Government concerning the case of Sun Ever Lights, in which the management states that the dismissal was not illegal but the consequence of staging an illegal strike; that the great majority of the participants had duly signed and executed quitclaims and release in exchange for financial assistance; that eight of the 12 employees ordered to be reinstated by the NLRC already resigned and executed their quitclaims, release and waiver; and three of the 12 were dismissed on grounds outside NLRC jurisdiction for absence without leave. Likewise, the Committee notes the information forwarded by the Government concerning the case of Enkei Philippines, in which the management states that the 47 employees were dismissed on the ground of insubordination for boycotting work on 19 June 2006 (according to the complainant, they were attending the union’s general membership meeting); that their explanation referring to the special non-working holiday was found unsatisfactory as the rendition of overtime work fell within the exceptions provided by the law; that out of the 47 employees, eight have voluntarily resigned and executed their quitclaims and release to the full and complete satisfaction of their claims against the company and four have not reported to the company despite due notice to return to work; and that the reinstatement order was not implemented due to the exercise of the right of the company to resort to legal remedy.
5. 988. The Committee notes the Government’s statement that all cases enumerated above were referred to the concerned agencies (Court of Appeals, NLRC, CHR, PEZA, DOLE, DILG, Supreme Court and DOJ) for appropriate action and immediate resolution.
6. 989. The Committee reminds the Government that it is responsible for preventing all acts of anti-union discrimination and must ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned. Cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective. An excessive delay in processing cases of anti union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders and members dismissed by the enterprise, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned [see Digest, op. cit., paras 817 and 826].
7. 990. In view of the principles enunciated above, the Committee requests the Government, in respect of Enkei Philippines, to take the necessary steps so that, pending the outcome of any appeal proceedings instituted by the company, the union members who were dismissed are reinstated immediately in their jobs under the same terms and conditions prevailing prior to their dismissal with compensation for lost wages and benefits, in conformity with the 2007 NLRC order for reinstatement. If reinstatement is not possible for objective and compelling reasons, the Government should ensure that the workers concerned are paid adequate compensation which would represent a sufficiently dissuasive sanction for anti-union dismissals. Similarly, in the case of Sun Ever Lights, the Committee requests the Government to keep it informed of any developments in regard to the motion for writ of execution of the 2008 NLRC reinstatement order pending with the NLRC.
8. 991. Concerning the other abovementioned allegations of illegal dismissals, the Committee requests the Government to carry out independent investigations of the dismissals and, if it finds that they constitute anti-union acts, to take measures to ensure the reinstatement of the workers concerned without delay. If reinstatement is not possible for objective and compelling reasons, the Government should ensure that the workers concerned are paid adequate compensation which would represent a sufficiently dissuasive sanction for anti trade union dismissals. In addition, in the case of Anita’s Home Bakeshop, the Committee once again urges the Government to keep it informed of any relevant judgment handed down, and in particular of the decisions of the NLRC RAB VII or the NLRC Division 4 in Cebu City.
9. 992. The Committee further requests the Government to keep it informed of the motu proprio investigations that were to be conducted by the CHR into the abovementioned allegations. It expects that the Government will do its utmost to ensure a speedy and equitable resolution of all cases by the agencies concerned.

Denial of the right to strike

1. 993. The Committee notes that the Government states that, in the case of Aichi Forging Company, the National TIPC-Monitoring Body recommended closure of the case on the ground of settlement, and that the case of NMCW was referred to the concerned agencies for appropriate action and immediate resolution.
2. 994. The Committee also notes the Government’s indication that one of the DOLE priority bills is Senate Bill No. 632, which seeks to amend articles 263, 264 and 272 of the Labor Code, and in particular to align article 263(g) of the Philippine Labor Code with the essential services criteria under Convention No. 87. This bill, which was processed through the TIPC, and for which the workers’ group at the TIPC expressed support, was not endorsed as a tripartite bill and is now the subject of hearings before the Senate Committee on Labor.
3. 995. The Committee trusts that the ongoing legislative reform will advance successfully and requests the Government to continue to keep it informed in this regard. Recalling that workers in EPZs – despite the economic arguments often put forward – like other workers, without distinction whatsoever, should enjoy the trade union rights provided for by the freedom of association Conventions [see Digest, op. cit., para. 264], the Committee expects that the Government will take the necessary measures without delay to ensure the full respect for the trade union rights of EPZ workers in practice, including the right to strike, as well as to ensure the speedy resolution of the case of NMCW.

Blacklists

1. 996. With respect to the allegations of blacklisting and vilification of union members at Daiho Philippines and Anita’s Home Bakeshop, the Committee notes that the Government indicates that these cases were referred to the concerned agencies (Court of Appeals, NLRC, CHR, PEZA, DOLE, DILG, Supreme Court and DOJ) for appropriate action and immediate resolution.
2. 997. The Committee recalls that the restriction of a person’s movements to a limited area, accompanied by the prohibition of entry into the area in which his or her trade union operates and in which he or she normally carries on trade union functions, is inconsistent with the normal enjoyment of the right of association and with the exercise of the right to carry on trade union activities and functions, and that all practices involving blacklisting of trade union officials or members constitute a serious threat to the free exercise of trade union rights and, in general, governments should take stringent measures to combat such practices [see Digest, op. cit., paras 129 and 803]. The Committee requests the Government to keep it informed of the outcome of any inquiries conducted by the CHR and to make efforts to ensure the swift investigation and resolution of these cases.

Harassment and interference: Militarization of the workplace

1. 998. As regards the serious allegations that on many occasions, the PEZA and municipal government sent units of the Philippine National Police (PNP) and/or the Special Warfare Group (SWAG), Emirates security guards, the Regional Special Action Forces–PNP to intimidate and/or disperse workers during protests, strikes or on picket lines, which, in the case of Hanjin Garments, resulted in the death of one protester, the Committee notes the information supplied by the Government that, according to the PNP, the Cabuyao Municipal Police Station proceeded in the area of the protest/rally in front of the abovementioned factory to maintain peace and order. The Committee also notes the Government’s indication that the case was referred to the concerned agency for appropriate action and immediate resolution.
2. 999. Recalling that, in cases in which the dispersal of public meetings by the police has involved loss of life or serious injury, the Committee has attached special importance to the circumstances being fully investigated immediately through an independent inquiry and to a regular legal procedure being followed to determine the justification for the action taken by the police and to determine responsibilities [see Digest, op. cit., para. 49], the Committee once again requests the Government to establish without delay an independent judicial inquiry and proceedings before the competent courts as soon as possible, with regard to the allegation of the killing of a protester with a view to shedding full light onto the relevant facts and circumstances, and to determine where responsibilities lie, punish the guilty parties and prevent the repetition of similar events. The Committee firmly expects that the Government will do its utmost to ensure the speedy investigation and judicial examination of the abovementioned case. The Committee requests to be kept informed in this respect.
3. 1000. Concerning the allegations of involvement of the army and police in the dispersal of the picket line and union collective actions at Sun Ever Lights, Sensuous Lingerie, Hanjin Garments and Asia Brewery, the Committee notes the following information provided by the Government concerning the first three companies: (i) with respect to the first company, the PNP states that it has no record of the incident since the strike occurred in an area under PEZA jurisdiction; the provincial Government of Laguna denies any involvement; and the management states that violence, coercion and destruction of company property by union members made necessary the immediate assistance of the PNP Biñan and Calamba, and denies having ordered PEZA guards to prevent re-entry of the union members and officers participating in the illegal strike; (ii) as to the second company, the PNP states that it has no record of the incident since the strike occurred in an area under PEZA jurisdiction; the provincial Government of Laguna denies any involvement; and the management reiterates the information previously supplied by PEZA; and (iii) as regards the third company, the NMCB indicates that after hours of negotiations the picketing workers clashed with the police causing injuries to both parties and according to the PNP, the Cabuyao MPS proceeded in the area of the protest/rally in front of the factory to maintain peace and order. The Committee also notes that, according to the Government, these cases were referred to the concerned agencies (Court of Appeals, NLRC, CHR, PEZA, DOLE, DILG, Supreme Court and DOJ) for appropriate action and immediate resolution.
4. 1001. The Committee recalls that the authorities should resort to calling in the police in a strike situation only if there is a genuine threat to public order. The intervention of the police should be in proportion to the threat to public order and governments should take measures to ensure that the competent authorities receive adequate instructions so as to avoid the danger of excessive violence in trying to control demonstrations that might undermine public order [see Digest, op. cit., para. 647]. Noting the conflicting versions of the complainant and the Government (through PNP and the provincial Government of Laguna) as well as, in the case of the first company, the contradictory information provided by the PNP and the management, the Committee requests the Government to take all necessary measures for an independent investigation to be carried out into the abovementioned incidents alleged by the complainant with a view to identifying and punishing those responsible without further delay. The Committee requests the Government to keep it informed of the motu proprio investigations conducted by the CHR and to make all efforts to ensure timely progress in the resolution of these cases.
5. 1002. Concerning the allegations of a prolonged presence of the army inside the workplaces in the enterprises Sun Ever Lights, Aichi Forging Company and Siam Ceramics, the Committee notes the following information forwarded by the Government concerning the first two companies: (i) with respect to the first company, the management states that the SWAG is an independent contractor serving the security needs of the company by monitoring, escorting and protecting staff during their ingress and egress; and (ii) as to the second company, the management echoes PEZA indicating that the increase in the number of security guards sought to intensify the level of safety and security within premises due to several incidents involving specific acts of sabotage and security breaches, and states that a new collective agreement was concluded between the union and the company on 23 March 2010 putting an end to all issues between the parties. The Committee also notes the Government’s indication that the case of the latter company was recommended for closure by the National TIPC-Monitoring Body on the ground of settlement, and that the other cases were referred to the concerned agencies (Court of Appeals, NLRC, CHR, PEZA, DOLE, DILG, Supreme Court and DOJ) for appropriate action and immediate resolution.
6. 1003. With a view to giving instructions to the law enforcement authorities so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations, the Committee notes with interest that the revised Joint DOLE–PNP–PEZA guidelines on the conduct of PNP personnel, economic zone police and security guards, company security guards and similar personnel during labour disputes were issued on 23 May 2011, and orientation seminars have been conducted to facilitate their implementation.
7. 1004. The Committee further notes the information provided by the Government concerning: (i) the commitment of the new Chief of the Armed Forces of the Philippines (AFP) under the Internal Peace and Security Plan “Bayanihan”, under which troops will be shifted from combat operations to civilian–military operations; and (ii) the agreement in principle between DOLE and AFP on AFP’s participation in the regional TIPCs for better appreciation of social dialogue, freedom of association and civil liberties; on the conduct of capacity-building seminars on freedom of association as it relates to civil liberties and human rights; and on the crafting of a Memorandum of Agreement or Social Accord with the DOLE, labour groups and employers that would clarify AFP engagement in the community and set the parameters on non-engagement in unions and workplaces. The Committee notes with interest the Government’s indication in its most recent communication that: (i) a Manifesto of Commitment between DOLE, the Labor Sector and the AFP has been signed on 21 July 2011, in which the signatories committed themselves to promote and protect human rights and workers’ rights; to engage in social dialogue to craft Guidelines on the conduct of the AFP/PNP relative to the exercise of workers’ rights to freedom of association, collective bargaining, concerted actions and other trade union activities and to establish a mechanism to allow their joint implementation and monitoring; (ii) the said DOLE–DILG–PNP–DND–AFP Joint Guidelines are currently being drafted by the TEC of the TIPC, are to be adopted on 8 May 2012 and expected to prohibit the deployment of military personnel in any labour-related mass actions and disputes except written request from DOLE due to the security situation; and (iii) the PNP Guidelines on the accountability of the immediate officer for the involvement of his subordinates in criminal offenses, which seek to strengthen command responsibility, have been issued. The Committee welcomes the adoption on 7 May 2012 of the Guidelines on the conduct of DOLE, DILG, DNG, DOJ, AFT and PNP relative to the exercise of workers’ rights and activities. It requests the Government to supply copies of the abovementioned PNP Guidelines on accountability.
8. 1005. The Committee further requests the Government to keep it informed of the motu proprio investigations conducted by the CHR and to take the necessary measures to ensure the speedy resolution of these cases.

Arrest and detention

1. 1006. As regards the allegations of false criminal charges filed against labour leaders and unionists at the onset of union formation, during collective bargaining negotiations, picket protests, and strikes at the companies Hanjin Garments, Asia Brewery, Golden Will Fashion, Sensuous Lingerie and Kaisahan ng Manggagawa sa Phils. Jeon Inc., the Committee notes the following information forwarded by the Government concerning Hanjin Garments whereby the management states that Christopher Capistrano, Vice President of AMIHAN-Independent, charged together with three others with direct assault and physical injury before the Biñan Regional Trial Court, have been released on bail and their case is pending before the Municipal Trial Court in Cabuyao. The Committee also notes the Government’s indication that these cases were referred to the concerned agencies (Court of Appeals, NLRC, CHR, PEZA, DOLE, DILG, Supreme Court and DOJ) for appropriate action and immediate resolution.
2. 1007. The Committee recalls that in cases involving the arrest, detention or sentencing of a trade union official, the Committee, taking the view that individuals have the right to be presumed innocent until found guilty, has considered that it was incumbent upon the Government to show that the measures it had taken were in no way occasioned by the trade union activities of the individual concerned [see Digest, op. cit., para. 94]. The Committee therefore requests the Government to ensure that all relevant information is gathered in an independent manner so as to shed full light on the situation and the circumstances surrounding the arrest of the above trade unionists; should it be determined that they were arrested in relation to their trade union activities, the Committee requests the Government to take the necessary measures to ensure that they are immediately released and all charges dropped. The Committee requests the Government to keep it informed of the motu proprio investigations conducted by the CHR, to do its utmost to soon be able to report progress in investigating all alleged cases of arrest and detention and to communicate the texts of any judgments handed down in these cases.

The Committee’s recommendations

1. 1008. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee expects that the Government will continue to engage with the KMU in dealing with cases involving its members and leaders and invites the complainant organization to cooperate as far as possible with the Government to this end. The Committee requests to be kept informed in this respect.
   • (b) The Committee requests the Government to keep it informed on any progress made towards the adoption of the Strengthening Workers’ Rights to Self Organization Bill.
   • (c) Recalling that the ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy provides that special incentives to attract foreign investment should not include any limitation of the workers’ freedom of association or the right to organize and bargain collectively, the Committee once again requests the Government to indicate the concrete steps taken or envisaged to guarantee the full and effective exercise of trade union rights in the EPZs.
   • (d) Concerning the concrete allegations of Government interference into internal union affairs at the Nagkakaisang Manggagawa sa Hoffen Industries-OLALIA factory (Hoffen), Samahan ng Manggagawa sa Mariwasa Siam Ceramics, Inc. (Siam Ceramics), Golden Will Fashion and Samahan ng Manggagawa sa EDS Mfg, Inc. (EDS Inc.), the Committee requests to be kept informed of the motu proprio (on its own violation) investigations that were to be conducted into these allegations by the CHR, expects that the Government will soon be able to report progress in the resolution of these cases and requests the Government to take all the necessary measures to ensure full respect of the principle that public authorities must exercise great restraint in relation to intervention in the internal affairs of trade unions.
   • (e) With respect to the complainant’s allegations that on various occasions, companies in the EPZs closed down either the whole company or strategic departments where most unionists were located following the recognition of a union (in particular Goldilocks, Sensuous Lingerie and Golden Will Fashion Philippines), the Committee, considering that the closure or restructuring and the lay-off of employees specifically in response to the exercise of trade union rights is tantamount to the denial of such rights and should be avoided, the Committee urges the Government to ensure that the Labor Code, which governs the relationship between labour and management in the registered enterprises in the EPZs, is applied in practice. The Committee requests the Government to provide information concerning the motu proprio investigations conducted by the CHR and expects that the Government will make efforts to ensure a speedy resolution of the above cases by the agencies concerned. It requests the Government to keep it informed in this regard.
   • (f) As regards the allegations of anti-union discrimination and more particularly of illegal dismissals of trade union members in the enterprises Enkei Philippines, Sun Ever Lights, Daiho Philippines Inc., Hanjin Garments, Asia Brewery, Nagkakaisang Manggagawa sa Chong Won (NMCW) and Anita’s Home Bakeshop, the Committee requests the Government, in respect of the first company, to take the necessary steps so that, pending the outcome of any appeal proceedings instituted by the company, the union members who were dismissed are reinstated immediately in their jobs under the same terms and conditions prevailing prior to their dismissal with compensation for lost wages and benefits, in conformity with the 2007 NLRC order for reinstatement; if reinstatement is not possible for objective and compelling reasons, the Government should ensure that the workers concerned are paid adequate compensation which would represent a sufficiently dissuasive sanction for anti-trade union dismissals. Similarly, in the case of the second company, the Committee requests the Government to keep it informed of any developments in regard to the motion for writ of execution of the 2008 NLRC reinstatement order pending with the NLRC. Concerning the alleged illegal dismissals at the other companies, the Committee requests the Government to carry out independent investigations of the dismissals and, if it finds that they constitute anti-union acts, to take measures to ensure the reinstatement of the workers concerned without delay. If reinstatement is not possible for objective and compelling reasons, the Government should ensure that the workers concerned are paid adequate compensation which would represent a sufficiently dissuasive sanction for anti-trade union dismissals. In addition, in the case of the last company, the Committee once again urges the Government to keep it informed of any relevant judgment handed down, and in particular of the decisions of the NLRC RAB VII or the NLRC Division 4 in Cebu City. The Committee further requests the Government to keep it informed of the motu proprio on its own volition investigations that were to be conducted by the CHR into the abovementioned allegations. It expects that the Government will do its utmost to ensure a speedy and equitable resolution of all cases by the agencies concerned.
   • (g) As to the allegations concerning denial of the right to strike, the Committee trusts that the ongoing legislative reform will advance successfully and requests the Government to continue to keep it informed in regard to progress made towards the adoption of Senate Bill No. 632, which seeks to align article 263(g) of the Philippine Labor Code with the essential services criteria under Convention No. 87. The Committee expects that the Government will take the necessary measures without delay to ensure the full respect for the trade union rights of EPZ workers in practice, including the right to strike, as well as to ensure the speedy resolution of the case of NMCW.
   • (h) With respect to the allegations of blacklisting and vilification of union members at Daiho Philippines and Anita’s Home Bakeshop, the Committee requests the Government to keep it informed of the outcome of any inquiries conducted by the CHR and to make efforts to ensure the swift investigation and resolution of these cases.
   • (i) As regards the serious allegations that on many occasions, the PEZA and municipal government sent PNP units or security forces to intimidate and/or disperse workers during protests, strikes or on picket lines, which, in the case of Hanjin Garments, resulted in the death of one protester, the Committee once again requests the Government to establish without delay an independent judicial inquiry and proceedings before the competent courts as soon as possible with regard to the allegation of the killing of a protester with a view to shedding full light onto the relevant facts and circumstances, and to determine where responsibilities lie, punish the guilty parties and prevent the repetition of similar events. The Committee firmly expects that the Government will do its utmost to ensure the speedy investigation and judicial examination of this case and requests to be kept informed in this respect. Concerning the alleged involvement of the army and police in the dispersal of the picket line and union collective actions at Sun Ever Lights, Sensuous Lingerie, Hanjin Garments and Asia Brewery, the Committee, in view of the conflicting versions of the complainant, the Government and the management, requests the Government to take all necessary measures for an independent investigation to be carried out into the alleged incidents with a view to identifying and punishing those responsible without further delay. The Committee requests the Government to keep it informed of the motu proprio investigations conducted by the CHR and to make all efforts to ensure timely progress in the resolution of these cases.
   • (j) Concerning the allegations of a prolonged presence of the army inside the workplaces in the enterprises Sun Ever Lights, Aichi Forging Company and Siam Ceramics, the Committee requests the Government to keep it informed of the motu proprio investigations conducted by the CHR and to take the necessary measures to ensure the speedy resolution of these cases. It also requests the Government to supply a copy of the PNP Guidelines on the Accountability of the Immediate Officer for the Involvement of His Subordinates in Criminal Offenses.
   • (k) As regards the allegations of arrest and detention following false criminal charges filed against labour leaders and unionists at the onset of union formation, during collective bargaining negotiations, picket protests, and strikes at the companies Hanjin Garments, Asia Brewery, Golden Will Fashion, Sensuous Lingerie and Kaisahan ng Manggagawa sa Phils. Jeon Inc., the Committee requests the Government to ensure that all relevant information is gathered in an independent manner so as to shed full light on the situation and the circumstances surrounding the arrest of the above trade unionists; should it be determined that they were arrested in relation to their trade union activities, the Committee requests the Government to take the necessary measures to ensure that they are immediately released and all charges dropped. The Committee requests the Government to keep it informed of the motu proprio investigations conducted by the CHR, to do its utmost to soon be able to report progress in investigating all alleged cases of arrest and detention and to communicate the texts of any judgments handed down in these cases.
   • (l) The Committee draws the special attention of the Governing Body to the extreme seriousness and urgent nature of the matters dealt with in this case.