Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee takes note of the information contained in the Government’s report and wishes to make comments on the following points.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations of their own choosing. In its report, the Government states that in the private sector, managerial employees, including confidential employees with access to labour relations information held by management, are not eligible to form unions. Pursuant to section 1 of rule I of Department Order No. 40-03, managerial employees are defined as: "[employees] vested with powers or prerogatives to lay down and execute management policies or to hire, transfer, suspend, lay off, recall, discharge, assign or discipline employees". As for the public sector, employees occupying high-level, policy-determining or primarily confidential positions, as well as jail guards and firemen are not allowed to join unions. The Committee recalls that the only exceptions authorized by the Convention concern the members of the police and armed forces (Article 9), such exceptions being justified on the basis of their responsibility for the external and internal security of the State (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 55). With respect to managerial and executive staff in the private sector and public servants holding managerial or supervisory positions of trust, the Committee considers that provisions which prohibit such workers from joining trade unions in which other workers are represented are not necessarily incompatible with the Convention, but on two conditions, namely, that they have the right to establish their own organizations and that the right to belong to those organizations is restricted to persons performing senior managerial or decision-making functions (see General survey, op. cit., paragraphs 57 and 66). With respect to fire service personnel and prison staff, the Committee is of the opinion that the functions exercised by these two categories of public servants should not justify their exclusion from the right to organize (see General survey, op. cit., paragraph 56). The Committee requests the Government to take the necessary measures to ensure that managerial employees, prison staff and firemen have the right to organize. It requests the Government to keep it informed of the measures taken or envisaged in this regard, and in particular within the context of the current elaboration of the new Labor Code.

Furthermore, the Committee notes the information available on the web site of the Department of Labor and Employment with respect to the Philippines Overseas Employment Administration. In particular, the Committee takes note of the "sample employment contract for various skills" concerning the Filipino overseas workers.

The Committee notes that section 14(a) of the sample contract provides that an employer may terminate the contract when a worker is engaging in trade union activities. Trade union activities are thus considered a just cause of termination, under the terms of the sample contract.

The Committee recalls that Article 2 of the Convention guarantees the right of workers, without distinction whatsoever, to establish and join organizations of their own choosing and that such a right would be undermined if workers could be dismissed on the grounds of their union activities or affiliation. The Committee has duly noted that the document constitutes only a sample contract. The Committee further recalls that the national legislation protects workers against anti-union discrimination (section 246 of the Labor Code). The Committee invites therefore the Government to take the necessary measures to remedy the inconsistency between its practice and the provisions of the Convention and to keep it informed in this respect. The Committee would also be grateful if the Government would specify the concrete circumstances under which such a sample contract is used (occupational activities covered, parties to the contract) and provide an estimate of the number of workers whose working conditions are governed by its terms.