Report in which the committee requests to be kept informed of development - Report No 365, November 2012

Case No 2815 (Philippines) - Complaint date: 25-AUG-10 - Closed

Allegations: The complainant organization alleges anti-union dismissals and anti-union discrimination at the Cirtek Electronics Corporation and at Temic Automotive Philippines

1. 1259. The Committee last examined this case at its November 2011 meeting, when it presented an interim report to the Governing Body [362nd Report, paras 1335–1385, approved by the Governing Body at its 312th Session (November 2011)].
2. 1260. The complainant sent supplementary information in a communication dated 29 February 2012.
3. 1261. The Government forwarded additional observations in a communication dated 5 March 2012.
4. 1262. 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. 1263. At its November 2011 session, in the light of the Committee’s interim conclusions, the Governing Body approved the following recommendations:
   • (a) With respect to Cirtek Electronics Corporation, the Committee:
     • (i) noting with interest from the Government’s reply the creation of an impartial Tripartite Team Cirtek Electronics Corporation (TTCEC) from among the members of the Tripartite Industrial Peace Committee of the Monitoring Body (TIPC-Monitoring Body) with the mandate to conduct a plant-level verification of the parties’ claims and propose recommendations with a view to achieving a settlement by the end of November 2011, and further noting the detailed information concerning the works of the TTCEC, expects that the TTCEC will review the initial allegations of the complainant relating to the dismissals of three sets of trade union officials and requests the Government to provide detailed information with regard to the results of the conducted inquiry;
     • (ii) requests that, should it be found in the course of the inquiry that the abovementioned trade union officials were dismissed due to their exercise of legitimate trade union activities, the Government take the necessary steps to ensure that they are fully reinstated without loss of pay and keep it informed of any developments in this respect;
     • (iii) requests the Government to ensure that the above inquiry also deals with the allegations that the company has stopped deducting union dues, refuses to recognize the union and has replaced it by a council composed of non-elected worker representatives, and to keep it informed in this regard;
     • (iv) urges the Government to keep it informed of the final outcome of any relevant judicial or other proceedings, including those pending before the Supreme Court, the National Labor Relations Commission (NLRC) and the arbitration branch, and of all measures of redress taken; and
     • (v) invites the complainant organization or the Government to supply a copy of the arbitration decision rendered with regard to the first collective dismissal of union officers.
   • (b) With respect to Temic Automotive Philippines, the Committee:
     • (i) deeply regretting that the Government has provided no information in relation to these allegations nor indicated whether this matter has been brought before the TIPC or whether the relevant employers’ organization has been consulted, expresses great concern at the alleged hidden reason for outsourcing the two departments normally belonging to the bargaining unit;
     • (ii) expects that the principles enounced in its conclusions will be taken into account in practice, in a manner so as to ensure that, in the remaining legal proceedings, the relevant bodies will effectively consider in their review the allegations put forward by the complainant that the outsourcing plan was actually aimed at eliminating any form of union in the departments concerned;
     • (iii) invites the Government to propose the creation of an impartial Tripartite Team from among the TIPC-Monitoring Body members with the mandate to conduct a plant-level verification of the parties’ claims, and to provide detailed information with regard to the conduct and outcome of such an inquiry; and
     • (iv) requests that, should it be found in the course of the inquiry that the 28 terminations were anti-union in nature and aimed at eliminating any union representation for the departments concerned, the Government take the necessary steps to ensure that the union members and officials concerned are fully reinstated without loss of pay and keep it informed of any developments in this respect.

B. The complainant’s allegations

Cirtek Electronics Corporation

1. 1264. In its communication dated 29 February 2012, the complainant organization recalls that in June 2005 the Cirtek Employees Labor Union – FFW (hereafter: “the union”) went on strike due to a bargaining deadlock; the Department of Labor and Employment (DOLE) assumed jurisdiction and directed the workers to return to work; while the deadlocked issues were being reviewed by the Secretary of Labor and Employment (SOLE), a few union officers agreed to conclude a Memorandum of Agreement (MOA) because the management pledged to abide by any more favourable SOLE award; the SOLE resolved the deadlock by improving the wage increase agreed in the MOA and incorporating in the collective bargaining agreement (CBA) the agreed items in the MOA. The management questioned the arbitral award before the Court of Appeals, which reversed it due to an alleged settlement agreement of some members. Hence, the union brought the matter before the Supreme Court. The complainant informs that, on 15 November 2010, the Supreme Court handed down its decision reversing the decision of the Court of Appeals and reinstating the SOLE award, and subsequently denied with finality two motions for reconsideration filed by the company. The complainant organization supplies a copy of the decision.
2. 1265. The complainant further indicates that the union’s struggle for recognition as the exclusive bargaining agent for the rank-and-file employees of the company is ongoing. The management has been showing a flip-flopping attitude towards recognizing the union. Despite conceding before the TTCEC that they will now recognize the union, a different situation occurs at the plant level. In particular, the complainant alleges that the human resource manager of the company continuously harassed the union officers and/or offered them special packages to leave the union or, if not, resign from the company. At the moment, three of the union officers already resigned from the company since they could no longer bear the pressure.

Temic Automotive Philippines

1. 1266. In its communication dated 29 February 2012, the complainant organization informs that the case of Endrico Duomolong, the employee who refused to accept the Voluntary Retirement Programme (VRP) and as a consequence was dismissed from employment, is presently pending before the Court of Appeals. It also indicates that the case on the illegal contracting out of functions of the Warehouse and Facilities Department in violation of the provisions of the collective bargaining agreement which was initiated before a voluntary arbitrator is also presently pending before the Court of Appeals.

C. The Government’s reply

Cirtek Electronics Corporation

1. 1267. The Government recalls, in its communication dated 5 March 2012, that an election of a new set of officers of “the union” had been peacefully conducted on 5 July 2011. The Government further informs that an agreement to merge with the newly created Cirtek Electronics Corporation-Independent Labor Union (CEC-ILU) into the United Cirtek Employees Union (UCEU) was reached on 30 September 2011. According to the Government, the agreement was formalized upon its adoption by the TTCEC and was to serve as a basis for the withdrawal of the present complaint. Following a referendum on 26 October 2011 where 331 of 345 voted in favour of the merger, the two unions in the company merged officially, the UCEU transitory constitution and by-laws were approved on 19 December 2011 and their ratification was scheduled on 29 December 2011. The Government indicates, however, that the ratification was cancelled by the union due to the management’s willingness to negotiate with it a new collective agreement in line with the new decision of the Supreme Court ordering the parties to enter into a new collective agreement. The Government was informed by the complainant that, on 9 February 2012, the proposed collective agreement was submitted to the management.

Temic Automotive Philippines

1. 1268. The Government informs that, pursuant to the Committee’s recommendation, the TIPC-Monitoring Body recommended through Resolution No. 12, Series of 2012, of 15 February 2012, the creation of an impartial tripartite team to conduct plant-level verification of the parties’ claims and to provide detailed information on the case within 30 days of its creation. The TIPC-Monitoring Body deemed it appropriate to constitute the impartial tripartite team from members of the Regional Tripartite Monitoring Body-National Capital Region for expediency and mobility. The Government indicates that, accordingly, the Secretary of Labor issued Administrative Order No. 80, Series of 2012, creating a Tripartite Team for Temic Automotive Philippines on 28 February 2012, and that updates will be provided as soon as available.

D. The Committee’s conclusions

1. 1269. The Committee notes that, in the present case, the complainant organization alleges anti union dismissals and anti-union discrimination at two enterprises.

Cirtek Electronics Corporation

1. 1270. The Committee notes the complainant’s indication that the Supreme Court recently rendered a decision favourable to the union as regards the 2005 SOLE award which was questioned by the management and had been reversed by the Court of Appeals due to an alleged settlement through an MOA with certain union members. The Committee notes that the Supreme Court decision of 15 November 2010 reversed the judgment of the Court of Appeals thus reinstating the arbitral award. The Court subsequently denied with finality two motions for reconsideration filed by the company. The Committee also notes that, according to the complainant, the union’s struggle for recognition as the exclusive bargaining agent for the rank-and-file employees of the company is ongoing. In particular, the Committee notes the complainant’s allegation that the company’s human resource manager continuously harassed the union officers and/or offered them special packages to leave the union or, if not, resign from the company, and that, at present, three of the union officers already resigned from the company since they could no longer bear the pressure.
2. 1271. The Committee notes from the Government’s response that, following the election of a new set of officers on 5 July 2011, the union agreed to merge with the newly created CEC-ILU, and this agreement was formalized by the TTCEC and was to serve as a basis for the withdrawal of the present complaint. However, the ratification of the new constitution and by-laws was cancelled by the Cirtek Employees Labor Union – FFW due to the management’s willingness to negotiate with it a new collective agreement in line with the decision of the Supreme Court ordering the parties to enter into a new collective agreement. The Committee regrets that it has not received any information concerning the outcome of the inquiry that was to be conducted by the TTCEC.
3. 1272. In the absence of any information on the initial allegations concerning the dismissal of three sets of union officers by the company, the Committee recalls that, given the large number of union leaders (21 named and several unnamed) dismissed by the company, an impartial tripartite team had been created with the mandate to conduct a plant-level verification of the parties’ claims. Reiterating the conclusions it reached when it examined this case at its meeting in November 2011 [see 362nd Report, paras 1369–1371], the Committee therefore expects that the TTCEC will review the initial allegations of the complainant relating to the dismissals of three sets of trade union officials without further delay and once again requests the Government to provide detailed information with regard to the results of the conducted inquiry. Should it be found in the course of that inquiry that the abovementioned trade union officials were dismissed due to their exercise of legitimate trade union activities, the Committee requests that the Government take the necessary steps to ensure that they are fully reinstated without loss of pay. It requests the Government to keep it informed of any developments in this respect. Also, the Committee requests to continue to be kept informed of the final outcome of any relevant judicial or other proceedings and of all measures of redress taken.
4. 1273. Moreover, the Committee requests to be informed whether, in the meantime, the collective bargaining agreement between the union and the management has been concluded, and, if not, expects that the Government will take measures to promote collective bargaining between the parties so that, in line with the decision of the Supreme Court, a collective bargaining agreement will be concluded in the near future either through negotiation or, if necessary, with the assistance of voluntary conciliation, mediation or arbitration.
5. 1274. Lastly, as indicated in its previous conclusions, given that, since 2003, the company has repeatedly terminated trade union officials that were preparing a strike or were taking up office, the Committee cannot but express deep concern at the new allegations of harassment of the recently elected set of union officers by the company, including the offer of special packages to leave the union or resign from the company, which has already led to three resignations. The Committee recalls that, as regards allegations of anti-union tactics in the form of bribes offered to union members to encourage their withdrawal from the union and the presentation of statements of resignation to the workers, the Committee has always considered such acts to be contrary to Article 2 of Convention No. 98, which provides that workers’ and employers’ organizations shall enjoy adequate protection against any acts of interference by each other or each other’s agents in their establishment, functioning or administration [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 858]. The Committee urges the Government to ensure that the investigation conducted by the TTCEC examines these new allegations as a matter of priority. It requests the Government to keep it informed of any developments in this respect.

Temic Automotive Philippines

1. 1275. The Committee notes the complainant’s indication that both the case of Endrico Duomolong, the employee who refused to accept the VRP and as a consequence was dismissed from employment, and the case on the illegal contracting out of functions of the Warehouse and Facilities Department in violation of the provisions of the collective agreement are presently pending before the Court of Appeals.
2. 1276. The Committee notes with interest from the Government’s reply that, pursuant to the Committee’s recommendation, the TIPC-Monitoring Body recommended through Resolution No. 12, Series of 2012, of 15 February 2012, the creation of an impartial tripartite team from members of the Regional Tripartite Monitoring Body-National Capital Region with the mandate to conduct plant-level verification of the parties’ claims, and that, accordingly, the Tripartite Team for Temic Automotive Philippines was established on 28 February 2012 through Administrative Order No. 80, Series of 2012. The Committee requests the Government to provide detailed information with regard to the conduct and outcome of such an inquiry. Should it be found in the course of the investigation that the 28 dismissals were anti-union in nature and aimed at eliminating any union representation for the departments concerned, the Committee requests the Government to take the necessary steps to ensure that the union members and officials concerned are fully reinstated without loss of pay, and to keep it informed in this respect.
3. 1277. Reiterating the conclusions it reached when it examined this case at its meeting in November 2011 [see 362nd Report, paras 1380–1383], the Committee recalls that it has always requested that, in the cases where new staff reduction programmes are undertaken, negotiations take place between the enterprise concerned and the trade union organizations, and that, when voluntary retirement programmes are carried out, the trade union organizations in the sector should be consulted [see Digest, op. cit., paras 1082–1083]. The Committee further wishes to generally recall that the dismissal of workers on grounds of membership of an organization or trade union activities violates the principles of freedom of association, and that subcontracting if conducted for anti-union purposes and accompanied by dismissals of union leaders constitutes a violation of the principle that no one should be prejudiced in his or her employment on the grounds of union membership or activities. It therefore emphasizes that acts of anti-trade union discrimination should not be authorized under the pretext of dismissals based on economic necessity, and that a corporate restructuring should not directly or indirectly threaten unionized workers and their organizations [see Digest, op. cit., paras 789, 790, 795 and 797]. Recalling also that the basic regulations that exist in the national legislation prohibiting acts of anti-union discrimination are inadequate when they are not accompanied by procedures to ensure that effective protection against such acts is guaranteed [see Digest, op. cit., para. 818], the Committee firmly expects that these principles will be taken into account in practice, in a manner so as to ensure that, in the remaining still ongoing legal proceedings, the relevant bodies will effectively consider in their review the allegations put forward by the complainant that the outsourcing plan was actually aimed at eliminating any form of union in the departments concerned (e.g. previous attempts of the company to exclude those departments from the bargaining unit, doubts as to the invoked reason of cost-saving for outsourcing the two departments, the compulsory nature of the purportedly voluntary compensation, the contractual prohibition of the service provider workers to join any union and their exclusion from the scope of the CBA). The Committee requests to be kept informed of the outcome of the pending legal proceedings.

The Committee’s recommendations

1. 1278. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) With respect to Cirtek Electronics Corporation, the Committee:
     • (i) expects that the TTCEC will review the initial allegations of the complainant relating to the dismissals of three sets of trade union officials without further delay and once again requests the Government to provide detailed information with regard to the results of the conducted inquiry;
     • (ii) requests that, should it be found in the course of that inquiry that the abovementioned trade union officials were dismissed due to their exercise of legitimate trade union activities, the Government take the necessary steps to ensure that they are fully reinstated without loss of pay and keep it informed of any developments in this respect;
     • (iii) requests to continue to be kept informed of the final outcome of any relevant judicial or other proceedings and of all measures of redress taken;
     • (iv) requests to be informed whether, in the meantime, the collective bargaining agreement between the union and the management has been concluded, and, if not, expects that the Government will take measures to promote collective bargaining between the parties so that, in line with the decision of the Supreme Court, a collective bargaining agreement will be concluded in the near future either through negotiation or, if necessary, with the assistance of voluntary conciliation, mediation or arbitration; and
     • (v) urges the Government to ensure that the above inquiry examines the new allegations of anti-union interference and harassment as a matter of priority, and requests the Government to keep it informed of any developments in this respect.
   • (b) With respect to Temic Automotive Philippines, the Committee:
     • (i) noting with interest the creation of an impartial Tripartite Team composed of members of the Regional Tripartite Monitoring Body-National Capital Region with the mandate to conduct a plant-level verification of the parties’ claims, requests the Government to provide detailed information with regard to the conduct and outcome of such an inquiry;
     • (ii) requests that, should it be found in the course of the inquiry that the 28 dismissals were anti-union in nature and aimed at eliminating any union representation for the departments concerned, the Government take the necessary steps to ensure that the union members and officials concerned are fully reinstated without loss of pay, and keep it informed of any developments in this respect; and
     • (iii) firmly expects that the principles enounced in its conclusions will be taken into account in practice, in a manner so as to ensure that, in the remaining still ongoing legal proceedings, the relevant bodies will effectively consider in their review the allegations put forward by the complainant that the outsourcing plan was actually aimed at eliminating any form of union in the departments concerned, and requests to be kept informed of the outcome of the pending legal proceedings.