Report in which the committee requests to be kept informed of development - Report No 383, October 2017

Case No 3236 (Philippines) - Complaint date: 29-SEP-16 - Follow-up

Allegations: The complainant organization alleges anti-union practices, including anti-union dismissals and harassment, carried out by management against the United Workers of Citra Mina Group of Companies Union and the failure of the authorities to take corrective measures

1. 561. The complaint is contained in a communication from the International Union of Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) dated 29 September 2016.
2. 562. The Government forwarded its response to the allegations in a communication dated 12 December 2016.
3. 563. 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. The complainant’s allegations

1. 564. In a communication dated 29 September 2016, the complainant organization, IUF, alleges blatant anti-union practices carried out by management against the United Workers of Citra Mina Group of Companies Union (UWCMGCU) and the failure of the Government to fulfil its obligations under Conventions Nos 87 and 98 in the face of such anti-union practices.
2. 565. The complainant indicates that the Citra Mina Group of Companies (hereinafter, the group) describes itself as an entity based in the city of General Santos, which “houses” interconnected, integrated corporations under the same family ownership and produces fresh-frozen and processed tuna and other seafood products.
3. 566. According to the complainant, workers at the enterprises forming the group began organizing a union in 2013 in response to the employer’s abusive use of precarious employment contracts, poor health and safety conditions, inadequate wages and uncertainty over social security contributions, among other issues. Workers held a founding General Assembly meeting on 18 July 2013, which elected officers and adopted statutes. On 24 July 2013, the UWCMGCU was formally registered at the Department of Labour and Employment (DOLE). The union is affiliated to the national trade union organization, Centre of United and Progressive Workers (SENTRO), which is a member of the IUF.
4. 567. The complainant alleges that, as of 2 August 2013, management responded aggressively to the union’s formation by suspending and terminating active officers and members and escalating the anti-union harassment by firing 180 known or suspected union members on 16 September 2013.
5. 568. The complainant states that the union filed on 18 September 2013 a formal complaint with the National Conciliation and Mediation Board (NCMB) for unfair labour practices and illegal anti-union mass terminations. The series of hearings at the NCMB in September and October 2013 failed to bring progress in resolving the dispute, despite the evident bad faith shown by the company, which only attended one of the three hearings. In the complainant’s view, the NCMB did not act in accordance with its legal mandate to actively promote conciliation between the parties by pursuing all avenues to facilitate a resolution. Instead, at the hearing on 2 September 2013, the NCMB Director urged the union and its members to renounce their rights and accept the company’s offer of separation payment. When the company, in later hearings, plainly stated its rejection of reinstatement and threatened legal action against the union should it continue to reject separation payment for the illegally terminated workers, the passivity of the NCMB ensured that the conciliation process was emptied of meaning and would produce no results.
6. 569. According to the complainant, on 15 October 2013, union members voted, in the presence of NCMB and DOLE, to take strike action in support of their demands. On 18 October 2013, DOLE officials and the City Administrator for General Santos City met with union representatives and urged them not to proceed with the legally authorized strike, indicating that they would encourage reinstatement. On 24 October 2013, DOLE issued a status quo order to the union enjoining it from any action. The union commenced legal strike action on 13 November, holding peaceful pickets outside of the premises. On 15 and 16 November 2013, the DOLE held a series of meetings with the union and the company, all of which failed to achieve results, due to the company’s ongoing threats to file legal action against the union for failing to accept separation pay and renounce their rights. On 20 November 2013, DOLE officials met with the union in advance of a tripartite meeting and promised action to secure reinstatement of the dismissed union members. The tripartite meeting, however, failed, as the company again insisted that the union must accept separation pay or face criminal charges and fines. Two days later, on 22 November 2013, the company filed a legal petition to revoke the union’s registration.
7. 570. Furthermore, the complainant alleges that, on 3 December 2013, the governmental National Labor Relations Commission (NLRC) issued a temporary restraining order enjoining the union to stop its legally authorized industrial action. An NLRC official came to the picket line with 15 police escorts and threatened the strikers with arrest if they failed to end the picket. On 7 December 2013, emboldened by the manifest failure of the Government to protect the rights of the workers, management served notice to another 58 workers who had supported the strike. These workers were terminated in January 2014 as a consequence of exercising their right to join a union and to take strike action. NLRC hearings were held on 11 and 18 December 2013, in response to management charges brought against the union in connection with the strike. The company exploited the hearings to escalate pressure on the union, threatening new financial claims against the union in connection with the strike.
8. 571. The complainant reports that, on 19 February 2014, in response to the company’s petition to revoke the union’s registration, DOLE Regional Office XII revoked the union’s legal registration. Subsequently, a decision issued on 30 May 2014, by the DOLE’s national legal office in Manila strongly rejected the grounds for the revocation and restored the union’s legally registered status. The DOLE decision of 30 May 2014 states clearly that the revocation of the union’s legal status was entirely without foundation in national law and established principles of freedom of association.
9. 572. The complainant denounces that, notwithstanding the above, more than two years have since passed during which the Government has taken no meaningful action to reinstate the dismissed workers to their jobs, secure effective recognition of the union by the employer and encourage collective bargaining negotiations. While the mediation process through the NCMB is still formally pending, the consistent failure of the DOLE to exercise the authority with which it is legally empowered, effectively means a resolution to the conflict in conformity with the Government’s obligations under Conventions Nos 87 and 98 is highly unlikely. A special hearing in the Philippines Congress in March 2015 highlighted a history and pattern of abusive employment practices and human rights violations at the group, but there continues to be no effective government action to resolve what has become the country’s best-known conflict over fundamental trade union rights.
10. 573. In conclusion, the complainant criticizes that, throughout the conflict, the Government has failed to act in accordance with its international obligations. Conciliation meetings under government auspices became an uncontested venue for threats against the union. No remedy has been offered to the 104 union members and supporters who continue to seek reinstatement and respect for their rights following the mass dismissals. Rather than defending the right to strike, the Government acted in concert with the police on 3 December 2013 in an attempt to halt legal industrial action. The regional DOLE’s capricious decision to revoke the union’s registration, though it was later restored, deprived the union of its legal status for some three months at a time of difficult challenges, and is characteristic of the Government’s handling of this dispute since its inception. The workers of the group continue to be denied their basic rights.

B. The Government’s reply

1. 574. In its communication dated 12 December 2016, the Government indicated that the UWCMGCU is a union registered with the DOLE Regional Office XII on 24 July 2013 under registration certificate No. XII-GSC-07-2013-001. It is composed of more or less 200 regular rank-and-file employees mostly assigned in the Citra Mina Seafood Corporation (hereinafter, the company), which is one of the four enterprises under the homonymous group, with its main office located at Brgy. Tambler, General Santos City. The group is engaged in the processing of tuna and its by-products, and has a total manpower of around 1,000 workers.
2. 575. The Government states that, in 2013, the union officers requested the management to recognize it voluntarily as sole and exclusive bargaining agent. In response, the management asked for the list of union members and set of officers but the union provided only the names of the latter. Hence, the union was not voluntarily recognized.
3. 576. The Government adds that, on 27 November 2013, the company filed a petition for cancellation of the certificate of trade union registration of the UWCMGCU on the grounds of misrepresentation, false statement and fraud when it registered itself as a labour organization to represent the rank-and-file employees of a non-existent corporation/employer (referring to the group). The company averred that the group is not a juridical person but a mere designation of affiliation of certain corporations. On 19 February 2014, the Regional Director of DOLE-XII issued an Order granting the petition and directing the delisting of UWCMGCU from the roster of legitimate labour unions. On 30 May 2014, the national DOLE Bureau of Labor Relations (BLR), on appeal, reversed the above Order. The BLR Decision specifically states that adoption of a union name bearing a non-juridical entity per se does not constitute a ground for cancellation of registration as provided under the Labor Code. It was stressed that any mistake in the designation or appellation of the employer unit does not cost the labour organization its union registration, especially if the mistake is unintentional or in good faith. BLR then upheld UWCMGCU as a legitimate labour organization entitled to the rights granted under the Labor Code.
4. 577. As regards the conciliation–mediation proceedings, the Government indicates that, in October 2013, the termination of 180 workers of the company was reported to DOLE Regional Office XII – General Santos City Field Office, due to a slump in market demand, company reorganization and high cost of production. Subsequently, the union filed a notice of strike with the NCMB for union busting. On 15 October 2013, the strike vote was conducted with the majority of the workers in favour of a strike. Meetings and conciliation–mediations were conducted by DOLE and NCMB through the Regional Inter Agency Coordinating and Monitoring Committee (RICMC) for possible settlement but no agreement was reached. The union demanded voluntary recognition and reinstatement with back wages, while the management requested the conduct of consent election.
5. 578. As to the alleged interference of the local government in the exercise of the right to self organization of the company’s workers, according to the Regional Conciliation and Mediation Board (RCMB) Region XII, this rooted from the establishment of a comfort room by picketers which had encroached on the road right of way in violation of the city ordinance and other pertinent laws. In this regard, the General Santos City Administrator issued an Order dated 22 May 2015 giving the picketers three days to self-demolish the illegal structures they built, otherwise, the city would be constrained to file appropriate charges and confiscate/demolish the said structures. The Office of the Assistant City Administration for Operation certified that the Order dated 22 May 2015 was not meant to curtail the right of workers to picket and to self-organize, and assured that the Local Government Unit (LGU) of General Santos City would not demolish said structures in the picket line.
6. 579. The Government also states that, on 31 July 2015, the management filed a case against the workers before the NLRC Subregional Arbitration Branch XII (NLRC-RAB XII) for illegal strike. At present, the case is thus under compulsory arbitration. As per information from NLRC-RAB XII, the decision is about to be released by the Labor Arbiter.
7. 580. Most recently, on 25 April 2016, the company proposed to the union the reinstatement of 12 workers with two-year length of service credit. The management also offered the reinstatement of another 84 workers but without two-year length of service credit. The union requested time to confer with their lawyer and submit a written counterproposal. However, on 31 August 2016, the union informed the RCMB that they would not submit a counterproposal to the offer submitted by management. This led to a deadlock.
8. 581. The Government also mentions that, parallel to the foregoing efforts, the DOLE continued to provide assistance to a number of displaced workers and their families even throughout the pendency of the conciliation proceedings and labour case, for example, the DOLE provided fund assistance and emergency employment to 61 of the displaced workers of the company for ten working days from 24 October to 8 November 2013 in close coordination with the LGU of General Santos City; and released the DOLE Kabuhayan Starter Kits amounting to 817,899 Philippine pesos (PHP) (US$16,000) to 78 of the displaced workers on 26 April 2014 in General Santos City. The Government adds that DOLE also granted a livelihood check to 148 of the displaced workers on 10 March 2015 under the DOLE Integrated Livelihood and Emergency Employment Program. A total of PHP2,040,000 (approximately $40,000) worth of livelihood were released through the Alliance of Progressive Labor (APL) as the Accredited Co-Partner for the displaced workers Tuna Handline Project. Four months after being awarded the grant, the displaced fishers from General Santos City have completed the construction of three mother boats and several “pakura” or small boats for their hand-line fishing project. These displaced workers include a number of repatriated fishers who were apprehended on 26 August 2014 in North Maluku for illegally fishing in Indonesian waters. The project is expected to earn gross sales of PHP1,000,000 (approximately $20,000) every fishing trip of one to two months, and the sharing scheme will be under a socialized system. The fishers’ share in the project’s income will automatically reflect deductions for their social security schemes. To ensure the project’s success, the DOLE provides continued support, including technical assistance on business management, productivity and innovation, and occupational safety and health; and monitoring, and coordination with its convergence partners, namely, Department of Trade and Industry for marketing and packaging; Department of Agriculture and its agencies, the Bureau of Fisheries and Aquatic Resources; the Maritime Industry Authority (MARINA) and Philippine Coast Guard; Department of Science and Technology; Technical Education and Skills Development Authority for skills training, certification, and assessment; and LGUs through the Department of Interior and local government.
9. 582. More generally, in an effort to further strengthen and enhance the rights of workers in the fishing industry, the DOLE has issued Department Order No. 156-16, series of 2016 (D.O. 156-16), providing the rules and regulations governing the working and living conditions of fishers on board fishing vessels engaged in commercial fishing operations. The issuance was formulated in cooperation with the tripartite partners and took effect on 1 July 2016. This applies to fishing vessel owners, fishers, and captains or masters on board Philippine-registered fishing vessels engaged in commercial fishing operations in the Philippine or international waters. The new legislation mandates that the engagement of Filipino fishers must be bound by an employment agreement in a language or dialect understandable to the workers, and delineating the living and working conditions on board commercial fishing vessels. Fishers covered by the new order are, inter alia, entitled to paid maternity, paternity, parental, and solo parents leave, including paid leave of ten days if they are victims of violence; and retirement pay upon reaching the age of 60. To significantly address cases of child labour in the industry, D.O. 156-16 strictly sets a minimum age of 18 for a fisher to be qualified to work on board commercial fishing vessels. Moreover, no fisher shall work on board a fishing vessel without a valid medical certificate issued by a public health facility or any medical facility duly accredited by the Department of Health. Fishers must also be provided with adequate specific instructions and applicable basic safety and health training as a preventive measure to occupational accidents.
10. 583. Lastly, the Government highlights that it fully recognizes the rights and welfare of the workers in the fishing and canning industry, as exemplified in its efforts to resolve the labour dispute, and similarly address all facets of industry-specific concerns. The Government, through the DOLE, shall continue with the performance of its mandate to render all forms of assistance and services possible, from conciliation and arbitration up to out-of-the-box livelihood assistance, to promote decent work in the fishing and canning industry and protect the workers’ exercise of their right to self-organization.

C. The Committee’s conclusions

1. 584. The Committee notes that, in the present case, the complainant organization alleges anti union practices, including anti-union dismissals and harassment, carried out by management against the UWCMGCU and the failure of the authorities to take corrective measures.
2. 585. The Committee notes the complainant’s allegation that, as of 2 August 2013, management responded aggressively to the registration on 24 July 2013 of the UWCMGCU with DOLE by suspending and terminating trade union officers and active members, and subsequently dismissing 180 known or suspected union members on 16 September 2013; whereas the Government indicates that the reported grounds for the terminations included a decline in market demand, company reorganization and high cost of production. As to the conciliation–mediation proceedings, the Committee observes that the Government does not contest the complainant’s allegation that the NCMB Director urged the union and its members from the start to waive their rights and accept the company’s offer of separation pay, and that, due to the NCMB’s subsequent passivity, the meetings produced no results and became a venue for management threats against the union. While taking due note of the Government’s efforts to provide assistance to a number of displaced workers and legislative measures to protect the industry’s workers, the Committee cannot but regret that, notwithstanding a considerable lapse of time (more than four years), the serious allegation of mass terminations on grounds of union foundation or membership did not give rise to a more active and effective follow-up by the Government aiming at the comprehensive resolution of the concrete dispute.
3. 586. The Committee recalls that no person should be dismissed or prejudiced in employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 771].
4. 587. The Committee requests the Government to conduct an independent inquiry into the allegation that more than 180 workers were terminated on the grounds of their involvement in the establishment of the union or their affiliation to the union. Should it be found that they were dismissed for anti-union reasons, the Committee requests the Government to take, as a matter of urgency, the necessary measures to ensure their full reinstatement without loss of pay. In the event that reinstatement is found to be no longer possible, for objective and compelling reasons, the Committee requests the Government to take the necessary measures to ensure that the union officers and members concerned are paid adequate compensation which would represent a sufficiently dissuasive sanction for anti-union dismissals. In this regard, and with reference to the deadlock reached according to the Government in 2016 due to non-acceptance by the union of the latest company offer, the Committee encourages the Government to actively intercede with the parties, including within the framework of the ongoing conciliation–mediation proceedings, with a view to promoting a mutually satisfactory solution to this enduring dispute and related hardship.
5. 588. Furthermore, the Committee notes the complainant’s allegation that, following the commencement of legal strike action on 13 November 2013, 58 workers supporting the strike were served notice by management on 7 December 2013 and terminated in January 2014. The Committee observes that the Government does not provide any information in this regard. Recalling that the use of extremely serious measures, such as dismissal of workers for having participated in a strike and refusal to re-employ them, implies a serious risk of abuse and constitutes a violation of freedom of association [see Digest, op. cit., para. 666], the Committee requests the Government to initiate an independent inquiry into the allegation that the 58 workers were dismissed for having exercised their right to strike, and if found to be true, to take the appropriate remedial measures. The Committee also requests the Government to provide information as to the outcome of the compulsory arbitration proceedings before the NLRC concerning the illegality of the strike.
6. 589. With respect to the management’s petition to revoke the registration of the UWCMGCU for reasons mainly related to the union’s title and the Order of DOLE Regional Office XII dated 19 February 2014 granting the petition, the Committee welcomes the DOLE–BLR Decision dated 30 May 2014 reversing the Order in accordance with the recently amended Department Order 40-03 and holding that cancellation proceedings must be free from rigid technicalities of law and procedure and that any mistake in the designation or appellation of the employer unit does not cost the labour organization its union registration. The Committee further observes the complainant’s indication that, between 19 February and 30 May 2014, the UWCMGCU had been delisted from the roster of legitimate labour unions and divested of its rights and privileges as a legitimate labour union, at a time of difficult challenges. In this regard, the Committee recalls that, in view of the serious consequences which dissolution of a union involves for the occupational representation of workers, the Committee has considered that it would appear preferable, in the interest of labour relations, if such action were to be taken only as the last resort, and after exhausting other possibilities with less serious effects for the organization as a whole [see Digest, op. cit., para. 678]. In light of the above, the Committee trusts that the Government will take the necessary measures so that, in the future, appeals of administrative dissolution orders have a suspensive effect.
7. 590. Lastly, on a more general note, the Committee invites the Government, when interacting with the parties, to seek to foster a climate of dialogue and trust between the union and management, with a view to restoring harmonious labour relations and promoting meaningful collective bargaining.

The Committee’s recommendations

1. 591. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to conduct an independent inquiry into the allegation that more than 180 workers were terminated on the grounds of their involvement in the establishment of the union or their affiliation to the union, and, should it be found that they were dismissed for anti-union reasons, to take, as a matter of urgency, the necessary measures to ensure their full reinstatement without loss of pay, or, in the event that reinstatement is found to be no longer possible, for objective and compelling reasons, to take the necessary measures to ensure that the union officers and members concerned are paid adequate compensation which would represent a sufficiently dissuasive sanction for anti-union dismissals. In this regard, and with reference to the deadlock reached according to the Government in 2016, the Committee encourages the Government to actively intercede with the parties, including within the framework of the ongoing conciliation–mediation proceedings, with a view to promoting a mutually satisfactory solution to this enduring dispute and related hardship.
   • (b) The Committee requests the Government to initiate an independent inquiry into the allegation that 58 workers were dismissed for having exercised their right to strike, and if found to be true, to take appropriate remedial measures. It also requests the Government to provide information as to the outcome of the compulsory arbitration proceedings before the NLRC concerning the illegality of the union’s strike action.
   • (c) The Committee trusts that the Government will take the necessary measures so that, in the future, appeals of administrative dissolution orders have a suspensive effect.
   • (d) The Committee invites the Government, when interacting with the parties, to seek to foster a climate of dialogue and trust between the union and management, with a view to restoring harmonious labour relations and promoting meaningful collective bargaining.