Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes that the Government’s report has not been received. It also notes the lengthy comments communicated by the International Trade Union Confederation (ITUC) in communications dated 29 August and 1 September 2008; the Kilosang Mayo Uno in a communication dated 15 September 2008; and the Public Services Labor Independent Confederation (PSLINK) in a communication dated 15 September 2008. The Committee requests the Government to provide its observations on these comments.

1. Articles 1, 2 and 3 of the Convention. Protection against acts of anti-union discrimination and interference. The Committee notes that for several years it has been requesting the Government to respond to comments made by the ITUC with regard to numerous acts of anti-union discrimination and interference. The Committee notes the latest detailed comments made by the ITUC, reporting extensive anti-union discrimination and employer interference, cases of replacement of trade unions by non-independent company unions, dismissals and blacklisting of activists in export processing zones (EPZs) and other special economic zones. The ITUC also referred in its 2006–07 comments to an order promulgated in 2004 (the labour standards enforcement framework) which essentially abandons the principle of government labour inspection for workplaces with more than 200 workers; self-regulation will be conducted in large companies at least once a year by an employer–worker committee based on a government-issued checklist and in companies where there is a registered collective bargaining agreement.

The Committee notes the conclusions and recommendations reached by the Committee on Freedom of Association in several cases concerning acts of anti-union discrimination and interference, the most recent being Case No. 2488 which illustrates the considerable difficulties faced by workers in their efforts to have their grievances examined through protracted litigation and long and complex judicial proceedings which give rise to a situation of prolonged legal uncertainty (350th Report, paragraph 202).

The Committee emphasizes that Article 3 of the Convention requires effective machinery for the purpose of ensuring respect for the right to organize as defined in Articles 1 and 2. Acts of anti-union discrimination and interference are serious violations of the right to organize as they may jeopardize the very existence or independence of trade unions. Thus, the Committee stresses that national procedures against such acts should be prompt and accompanied by appropriate remedies and sufficiently dissuasive sanctions.

Noting that certain of the reported acts of anti-union discrimination and interference relate to certification procedures and elections, the Committee notes that according to information provided by the Government to the Committee on Freedom of Association in the context of Case No. 2252, House Bill No. 1351, which has been approved by the House of Representatives and is currently being considered by the Senate, seeks, among other things to: (1) eliminate employer interference, which is, according to the Government, an incessant cause of delay in certification proceedings; (2) restrict the grounds for cancellation of union registration; and (3) clarify that the filing of a petition for cancellation of registration does not suspend a petition for certification election (346th Report, paragraph 176).

The Committee requests the Government to provide in its next report a copy of House Bill No. 1351 and to indicate any developments as well as any additional legislative or other measures taken or contemplated to accelerate the procedures and strengthen in practice the protection available against acts of anti-union discrimination and interference, with special emphasis on EPZs and special economic zones. The Committee also requests the Government to provide statistical information on the number of complaints of unfair practices and inspections carried out on these matters in EPZs and special economic zones.

Article 4. Development of collective bargaining in the public sector. In its previous comments, the Committee took note of the Government’s indication that, under section 13 of Executive Order No. 180, only terms and conditions not otherwise fixed by law may be negotiated between public sector employees’ organizations and the Government authorities. The Government had further stated that such matters as the scheduling of vacation leave, the work assignment of pregnant women and recreational, social, athletic and cultural activities are negotiable; however, matters relating, inter alia, to wages and all other forms of pecuniary remuneration, retirement benefits, appointment, promotion, and disciplinary action are not negotiable. The Committee recalls in this connection that article 276 of the Labour Code provides that the terms and conditions of employment of all Government employees, including employees of government-owned and controlled corporations, shall be governed by the civil service law, rules and regulations, and that their salaries shall be standardized by the National Assembly as provided for in the new Constitution. The Committee notes, moreover, that the ITUC confirms these restrictions on bargaining rights in the public sector. In these circumstances, while recalling that the Convention is compatible with systems requiring parliamentary approval of certain labour conditions or financial clauses of collective agreements, as long as the authorities respect the agreement adopted, the Committee once again recalls the importance of the development of collective bargaining in the public sector and repeats its firm hope that the amendments to the Labour Code or other legislation would be adopted in the near future and that it will fully grant to public sector employees not engaged in the administration of the State the right to negotiate their terms and conditions of employment in accordance with Articles 4 and 6 of the Convention. It once again requests the Government to indicate the developments in this regard and provide copies of any legislation once adopted.