Effect given to the recommendations of the committee and the Governing Body - Report No 365, November 2012

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

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

1. 168. The Committee last examined this case at its March 2010 meeting [see 356th Report, paras 1194–1225], at which time it made the following recommendations:
   • (a) The Committee once again requests the Government to initiate discussions in order to reach a solution with respect to approximately 100 workers who did not previously accept the compensation package offered by the company in their previous employment including, if their reinstatement is not possible as determined by a competent judicial authority, the payment of adequate compensation. The Committee further requests the Government to inform it of the outcome of the complainant’s urgent plea before the Supreme Court requesting a review of the latter’s 19 October 2007 and 17 March 2008 decisions.
   • (b) The Committee requests the Government to keep it informed of developments regarding the initiatives to find “out-of-the-box solutions” with a view to dismissing the criminal cases involving members of the TMPCWA, as well as on the judicial proceedings relating to the two criminal cases.
   • (c) The Committee requests the Government to inform it of the outcome of the complainant’s motion for reconsideration of the Court of Appeals’ 2 April 2008 decision confirming the TMPCLO’s certification as the sole and exclusive bargaining agent. The Committee further expresses the firm expectation that the Court of Appeals, should it grant the complainant’s motion, will give due consideration to the Committee’s previous comments on the issue of certification.
   • (d) The Committee requests the Government to continue to pursue measures to ensure the expeditious investigation, prosecution, and resolution of pending cases concerning the alleged harassment and assassination of labour leaders and trade union activists, and all other measures necessary to ensuring that freedom of association may be exercised by all workers’ organizations, including the complainant, 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.
   • (e) The Committee requests the Government to initiate a full, in-depth and independent inquiry into the complainant’s allegations of discrimination against its members and, if they are found to be true, to take the necessary measures to ensure that the persons concerned are adequately compensated so as to constitute sufficiently dissuasive sanctions against future acts of anti-union discrimination. It further requests the Government to keep it informed of any court proceedings concerning these allegations.
2. 169. The complainant organization provides additional information in support of its complaint in communications dated 30 August 2010 and 30 March 2011. It indicates that, despite its ongoing cooperation with the Department of Labor and Employment (DOLE) in implementing the possible solutions recommended by the ILO High-level Mission (HLM), Toyota struck anew against the union by illegally terminating four members of the Toyota Motor Philippines Corporation Workers’ Association (TMPCWA), two of which were union officials. On 7 June 2010, the TMPCWA grievance committee submitted a letter to the management, requesting the company for a meeting to discuss the continuing harassment and intimidation of TMPCWA members. On 25 June, nine union members (Wenecito Urgel, the TMPCWA Vice-President; Ronald Belen; Gilbert Cruzado; Dante Pantino; Ricky Bindol; Ariel Lalap; Roderick Vidal; Reynan Magdaong and Alberto Tanael) received a show-cause notice with notice of preventive suspension from the company, according to which, based on a preliminary investigation, they had been involved in a critical line-stop disrupting the production operations for 18 minutes. On 1 July, the nine union members submitted their individual explanation to the company management. The supposedly 30-day preventive suspension was extended for one week. On 2 August 2010, the management illegally dismissed the four TMPCWA members including two union officials (Wenecito Urgel, the union’s Vice President and Ariel Lalap, member of the union Board of Directors). In its communication of 30 March 2011, the complainant indicates that, after several meetings set by the National Conciliation and Mediation Board (NCMB), which was not able to settle the issue, the TMPCWA brought the issue to the National Labor Relations Commission (NLRC) in October 2010.
3. 170. According to the complainant, the workers neither committed production disruption nor participated in any riots or illegal strikes because they returned to their working places after the line-stop. The complainant asserts that it was the company that committed violations by extending the preventive suspension by one additional week simply because the investigation was not finished; and by not allowing the union representatives to represent the accused. According to the complainant, the Director from the Bureau of Labor Relations (BLR) attempted to persuade the company not to take any drastic actions against the workers, in view of the ongoing DOLE initiative to implement the ILO HLM recommendations. But Toyota responded by terminating the four union members including the Vice-President of the TMPCWA, in disregard of the workers’ family responsibilities and 15 to 20 years of continuing service to the company.
4. 171. As regards recommendation (a), the complainant states that, following a meeting in July 2010 initiated by the new secretary of DOLE, the set-up of the new government and several follow-up attempts on the part of the TMPCWA, a meeting was held with DOLE on 19 January 2011, focusing on the HLM recommendations and their implementation. In the complainant’s view, there was no development because of lack of will on the part of the Toyota management to implement the recommendations. On 16 March 2011, the TMPCWA launched a protest action in front of the factory in Santa Rosa, Laguna, to commemorate the tenth anniversary of the illegal dismissal by Toyota of 233 members and the leaders of the TMPCWA.
5. 172. As regards recommendation (b), the complainant organization indicates that, in a hearing on 1 September 2010, the TMPCWA approached the complainants who had filed criminal suits against the dismissed workers. According to the complainant, this attempt was based on the last discussion between the union and DOLE and DOLE’s communication to the company that the case should be withdrawn so that the HLM recommendations can move forward. Unfortunately, the complainants declined, and the next hearing is to be held on 15 June 2011.
6. 173. As regards recommendation (c), the complainant indicates that the Supreme Court had already released a decision on 9 August 2010 denying the TMPCWA’s Motion for Reconsideration, and that, on 18 October 2010, the Supreme Court has issued its final judgment on the certification election case (G.R. No. 186627-30), denying the Motion for Reconsideration of the TMPCWA. The complainant criticizes that the Supreme Court did not resolve the important issue of the challenged votes but simply stated that the issue was already moot and academic because the TMPCWA participated in the second certification election in 2006. Also, the issue of the first collective bargaining agreement has been totally ignored.
7. 174. As regards recommendation (e), the complainant indicates that TMPCWA members inside the factory continue to experience anti-union discrimination. In 2009, 86 workers (eight supervisory workers and members of the Toyota Motor Philippines Corporation Supervisory Union (TMPCSU), six members of the TMPCWA and more than 70 members of the Toyota Motor Philippines Corporation Labor Organization (TMPCLO)) had submitted a receipt to the management to avail themselves of the cafeteria benefits under the collective bargaining agreement. Toyota management accused them of fabricating false receipts. If proven, the penalty is dismissal. According to the complainant, the management ignored the request of the TMPCWA to represent its six members. On 28 March 2011, after almost two years of investigation, the management finally released a decision for most of the workers (15 days’ suspension), who reacted with relief. However, the decision was left hanging for the members of the TMPCWA; in the complainant’s view, Toyota and the TMPCLO deliberately chose a moment when the collective bargaining agreement was soon to expire. Further, in January 2011, members of the TMPCWA did not receive incentives like all the other rank and file workers for their effort to achieve the yearly production target of the company.
8. 175. As regards recommendation (d), the complainant deplores that Toyota is not only still continuing to disregard the past ILO recommendations and refuse a solution to the pending issues, but is also opposing the newly issued recommendations in a logic of confrontation, as illustrated by the recent events.
9. 176. In a communication dated 8 July 2012, the TMPCWA provides additional information in support of their complaint. In particular, the complainant alleges that the enterprise continues to harass the illegally dismissed members with fabricated criminal cases and carries out acts of union-busting against the TMPCWA, including through dismissal of four of its members and suspension of another in 2010. On this latter point, the complaint indicates that it has appealed the NLRC dismissal of its case to the Court of Appeal.
10. 177. In its communication of 15 November 2010, and with reference to its earlier reports on the exploratory talks anchored in the TMPCWA proposal to withdraw the two remaining criminal cases (IS No. 01-1-3534, 02-621 and IS No. 01-1-3538, 02-620), the Government indicates that it had earlier extracted verbal assurances from both parties on the possibility of court-ordered withdrawal of the cases. However, the Government states that an incident that occurred in the Toyota plant on 5 June 2010, set back all initial progress for an “out of the box” solution. The incident involved nine employees belonging to the TMPCWA and resulted in a “line stoppage” (two cars equivalent) during the night shift. As a result of the incident investigation by the company, two persons were terminated due to direct offenses, two were terminated for lying as their version of the events was the complete opposite of what the witnesses indicated; two were given a 30-day suspension; two got warnings; and one was absolved. In its communication of 30 May 2011, the Government indicates that, in its July meeting, the TIPC Monitoring Body Technical Executive Committee would take up the new allegations of the TMPCWA concerning the dismissal of four union leaders and members.
11. 178. On the reinstatement of 100 dismissed workers as requested by the TMPCWA, the Government believes that the issue can no longer be worked out. In a communication dated 24 May 2010, Toyota Motors Philippines stated that reinstatement is not possible since the Supreme Court has ruled with finality on the validity of the dismissal and on the non entitlement of the dismissed workers to severance pay. The company has, however, offered financial assistance and is willing to extend other forms of assistance. Based on the list provided by the company, out of the 233 dismissed TMPCWA workers, 141 have received financial assistance.
12. 179. On the alleged military harassment of the TMPCWA, one of the two activities organized by the ILO and DOLE on 22–23 April 2010, representing the second activity on freedom of association and civil liberties after the HLM, focused on Toyota and Philippine Economic Zone Authority (PEZA). The seminar entitled “Capacity Building Seminar on Freedom of Association, Collective Bargaining and Labor Law Implementation in the Philippine Economic Zones” was with tripartite components from Laguna, Cavite and Batangas economic zones (PEZA officials and staff; representatives from DOLE and the Regional Offices HI, IV-A and NCR of the Department of Interior and Local Government (DILG); selected representatives of the local government units; and tripartite participants especially from Laguna Technopark). In its communication of 30 May 2011, the Government indicates that, with respect to the Armed Forces of the Philippines, there is agreement on: (i) its participation in the Regional Tripartite Industrial Peace Council for better appreciation of social dialogue, freedom of association and civil liberties; (ii) the conduct of capacity-building seminars on freedom of association as it relates to civil liberties and human rights; and (iii) the crafting of a Memorandum of Agreement with DOLE, labour groups and employers that would clarify their engagement in the community and set the parameters on non-engagement in unions and workplaces. Moreover, the Government indicates that the newly created Tarlac-wide Tripartite Industrial Peace Council (TTIPC), which carried out localized seminars on international labour standards, is expected to implement follow-up actions identified in the above seminar.
13. 180. In its communication dated 28 February 2012, the Government indicates that the pace of the exploratory talks on the withdrawal/dropping of the criminal cases against Ed Cubelo, et al., has picked up. Meetings with complainants Leoro B. Pajarito, Napoleon S. Maniclang and Christopher F. Tolete, were conducted in 2012. The supervisory union, the TMPCSU, has continued to extend assistance in convincing the complainants for even a conditional withdrawal of the criminal cases. An update on the compromise agreement shall be provided as soon as finalized.
14. 181. The NCMB conducted preventive mediation conferences in relation to the dismissal and suspension incident. The TMPC manifested that the preventive suspensions were valid and necessary in the conduct of the investigation and due process, and that it was not willing to reconsider its earlier decision with regard to the penalty of termination or suspension. On 8 October 2010, the TMPCWA withdrew the preventive mediation before the NCMB and questioned the dismissals before the NLRC. The complaint was dismissed for lack of merit on 30 March 2011. The appeal before the NLRC was resolved adversely on 22 December 2011, and the complainants’ motion for reconsideration was denied on 7 February 2012.
15. 182. In the certification case, the TMPCLO was affirmed as the sole and exclusive bargaining agent of the Toyota rank and file employees. The Supreme Court, in a resolution dated 9 August 2010, affirmed the decision and resolution of the Court of Appeals dated 2 April 2008 and 13 February 2009, respectively.
16. 183. A new certification election was conducted in 2011. Petitioners TMPCWA, the New Organized Workers of Toyota Motor Philippines Corporation-Independent (NOW-TMPC) and forced intervenor TMPCLO agreed in June 2011 to a consent election to determine the sole and exclusive bargaining agent following the expiration of the collective bargaining agreement of the TMPCLO on 30 June 2011. However, during the pre-election conferences, petitioner TMPCWA withdrew their participation, and on 12 July 2011 the consent election was conducted. A total of 738 members of the rank and file bargaining unit have cast their votes out of the total listed 796 eligible voters. NOW-TMPC garnered 255 votes while forced intervenor TMPCLO won with 466 votes. The TMPCLO was certified as the sole and exclusive bargaining agent on 20 July 2011, absent an election protest.
17. 184. The Committee notes the detailed information provided by the complainant and the Government’s reply on a number of points. The Committee notes that there is a divergence of views between the complainant and the company with respect to the legality and anti union character of the dismissals arising out of an incident in June 2010, but observes the Government’s indication that the complaint filed with the NLRC was dismissed for lack of merit. The Committee further observes the indication in the complainant’s latest communication that it has filed an appeal against the NLRC dismissal. The Committee requests the Government to keep it informed of the outcome.
18. 185. As regards recommendation (a), the Committee notes that the complainant is of the view that the absence of progress is due to the lack of will on the part of the company to implement the recommendations, and that the Government believes that the issue can no longer be worked out, given that the company recently communicated in writing that reinstatement is not possible since the Supreme Court has ruled with finality on the validity of the dismissal and on the non-entitlement of the dismissed workers to severance pay and proposed financial assistance (accepted by 141 of the 233 dismissed TMPCWA workers according to the company) and other forms of assistance. Reiterating the freedom of association principles it enounced and the conclusions it made in this regard when it examined this case at its meeting in March 2010 [see 356th Report, paras 1215–16], the Committee urges the Government to pursue its efforts to intercede with the parties so as to reach an equitable negotiated solution in this longstanding case with respect to the approximately 100 workers who did not previously accept the compensation package offered by the company in their previous employment including, if their reinstatement is no longer possible for objective and compelling reasons, the payment of adequate compensation. The Committee again requests the Government to inform it of the outcome of the complainant’s urgent plea requesting a review of the Supreme Court 19 October 2007 and 17 March 2008 decisions and to supply a copy of the decision.
19. 186. As regards recommendation (b), the Committee notes the Government’s description of its failed attempt to approach the complainants in September 2010 and the Government’s indication that, while it had managed to extract verbal assurances from both parties on the possibility of court-ordered withdrawal of the cases, the abovementioned incident in the Toyota plant on 5 June 2010 set back all initial progress. The Committee further notes the additional information provided by the complainant concerning the latest hearings in this case in 2012. The Committee trusts that these proceedings – which were initiated over ten years ago – will finally be dismissed or withdrawn given the time that has elapsed and the conclusions made by the Committee on this matter over the years.
20. 187. As regards recommendation (c), the Committee notes that the Supreme Court issued its final judgment on the certification election case denying the Motion for Reconsideration of the TMPCWA. While noting with regret that little consideration appears to have been given to its previous conclusions on the issue of certification, the Committee now observes from the Government’s latest reply that the TMPCLO won the election conducted on 12 July 2011 and was certified as the sole and exclusive bargaining agent of the Toyota rank and file employees, absent any election protest.
21. 188. As regards recommendation (d), given that part of the allegations in this case refer to general harassment and militarization of the workplace being addressed in Case No. 2745, the Committee will pursue its further examination of these matters within the framework of Case No. 2745.