Effect given to the recommendations of the committee and the Governing Body - Report No 353, March 2009

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

1. 223. The Committee last examined this case at its June 2008 meeting [350th Report,
   • paras 180–202]. The case concerns the dismissal of all 15 officers of the University of San Agustin Employees’ Union – FFW (USAEU) in retaliation for the staging of a strike which lasted for nine hours, was initially found legal by the Department of Labor and Employment (DOLE) and subsequently declared illegal by the courts. The complainant also alleges partiality on behalf of the judicial authorities including the Supreme Court, leading to decisions which are alarmingly dangerous for the rights of the workers to collectively bargain, strike and obtain protection against anti-union discrimination, thus encouraging other employers (Eon Philippines Industries Corporation and Capiz Emmanuel Hospital) to engage in further acts of anti-union discrimination.
2. 224. During the last examination of this case, the Committee made the following recommendations:
   • – Given that the legal action had been pending before the courts on various aspects of this case since 2003, the Committee once again requests the Government to take measures for an independent review of the dismissal of the entire committee of the USAEU (Theodore Neil Lasola, Merlyn Jara, Julius Mario, Flaviano Manalo, Rene Cabalum, Herminigildo Calzado, Luz Calzado, Ray Anthony Zuñiga, Rizalene Villanueva, Rudante Dolar, Rover John Tavarro, Rena Lete, Alfredo Goriona, Ramon Vacante and Maximo Montero) and to take active steps to ensure a conciliation with the university regarding their reinstatement. The Committee requests to be kept informed of all developments in this respect, including any judicial decisions rendered.
   • – To take all necessary steps without delay to ensure the resumption and fruitful continuation of negotiations over the terms and conditions of employment of workers at the San Agustin University not only for the period 2003–05 but also for the future.
   • – To ensure that an independent inquiry is carried out immediately into the allegations of anti-union discrimination in the Eon Philippines Industries Corporation and the Capiz Emmanuel Hospital in Roxas City so that full light may be shown upon these allegations. If the acts of anti-union discrimination are confirmed, it requests the Government to take measures to ensure that the workers concerned are reinstated in their posts without loss of pay.
3. 225. The complainant provided follow-up information in communications dated 16 May, 21 August, 30 September, 23 December 2008 and 11 January 2009. In its communication of 16 May 2008, the complainant indicates that through further irregular decisions, the National Labour Relations Commission (NLRC) decided on 24 April 2008 that the dismissal of the entire USAEU committee (both officers and departmental representatives who had been previously found to have been unfairly dismissed as they did not constitute officers) was legal as this dismissal had already been declared legal by the Supreme Court in its 28 March 2006 decision. The complainant indicates that this contradicts the Government’s statement to the Committee that the Supreme Court decision did not foreclose litigation on the validity of the dismissals. Moreover, on 5 May 2008, the Bureau of Labor Relations of the Department of Labor issued a resolution denying the USAEU petition to nullify the illegal and separate election of union officers facilitated by the management of the University of San Agustin. In particular, on 2 August 2006, the separate and illegal election of officers was conducted at the university auditorium and the department heads of the university had verbally directed the employees to go to the auditorium for the election with the promise that they would be given their salary increase if they changed their union officers. While the legitimate union leadership (the dismissed chairperson Neil Lasola and his group) were holding the union general assembly at another place near the university, the other group instigated by the university management was holding an illegal election.
4. 226. In its communications of 21 May, 21 August and 1 September 2008, the complainant makes allegations related to corruption and bribery, including of certain justices of the Supreme Court and Appeals Court. The complainant attaches hundreds of pages of press clippings and judicial decisions concerning the union’s case. In its communication of 23 December 2008, the complainant indicates that the appeals filed by the dismissed trade unionists were once again rejected on the ground that the issue had been decided by the Supreme Court. The complainant alleges that certain decisions by judicial or quasi-judicial bodies contained a copy-paste of the documents submitted by the university and a verbatim reiteration of the university’s arguments.
5. 227. In its communication of 11 January 2009, the complainant indicates that in a circular dated 6 January 2009, the university president indicated that there are no longer any legal impediments in recognizing the union committee elected with management support on 2 August 2006 given the Supreme Court decision of 28 March 2006 and the NRLC decision of 24 April 2008 which confirmed that the dismissal of the officers cannot be examined as the Supreme Court has already decided the matter. The complainant adds that in an official communication dated 6 January 2009, the university tells the illegal union committee to put an end to the strike and demolish the strike area outside the university’s gate. The illegal union committee told union members at a meeting on 9 January 2009, that the university president wanted the union to demolish the strike area as a condition for giving to the employees their share of the tuition fee increase that the university implemented as of 2003. This share of the tuition fee increase is mandated in Republic Act No. 6728 which provides that 70 per cent of the tuition fee increase shall go to the employees. The promise of giving the share to the employees as mandated in the law, had already been made in obvious bad faith by the university in May 2005 so that union members would resign from the union during a strike and in August 2006 in order to vote for the illegal trade union committee which is now poised to take action for the demolition of the strike area. The complainant concludes that the union is now close to four years of suffering the pain, humiliation and financial difficulties without any help from the Government.
6. 228. The Government provided its observations in communications dated 30 September 2008 and 11 February 2009. The Government assures the ILO that the country’s judicial and quasi-judicial processes and remedies are fully functional and adhere to fair, just and expeditious resolution of cases based on existing laws and after hearing and evaluating the evidence adduced by the parties. Both judicial and quasi-judicial reliefs were availed of by the union officers. If they lost their case, it is simply because the law did not favour their cause. The Philippine Supreme Court, the highest court of the country, has already issued its decision on the said case. Being the highest court of the country, and its decision having attained finality, it is entitled to utmost respect. Thus, in resolving the petition initiated by Lasola et al. to nullify the 2 August 2006 election of officers (an intra-union dispute in USAEU) the Supreme Court decision and the following facts were considered: (i) on 2 August 2006 the election of the new set of trade union officers was held; (ii) on 27 September 2006, Theodore Neil Lasola filed a petition to nullify the election; (iii) on 20 July 2007 the mediator-arbiter dismissed the petition due to Lasola’s lack of legal personality to institute the subject petition for having been validly terminated from this employment; (iv) records show that as early as 5 April 2005, Lasola received a notice of termination from employment, based on the 4 March 2005 Court of Appeal decision. This decision, as partially amended on 23 August 2005, was affirmed in all respects by the 28 March 2006 Supreme Court decision, reiterating the dismissal of the union officers from employment. At the time of filing the petition to nullify the election, on 27 September 2006, Lasola had not challenged the legality of his dismissal. The absence of a pending challenge to the dismissal at the time of the institution of this case stripped Lasola of any pretence to claim the “employee” status.
7. 229. The Government adds that the dismissed USAEU officers appealed against the dismissal of their petition to nullify the election of the new officers and on 24 April 2008, the Bureau of Labor Relations (BLR) affirmed the order of the mediator-arbiter. Lasola et al. moved for the reconsideration of the 24 April 2008 BLR resolution. They explained that
   • USAEU–FFW has not at the time challenged the legality of the dismissals because USAEU had filed a pending motion before the Supreme Court to refer the case to the Supreme Court en banc. Moreover, it argued that the resolution contradicts the official position submitted by the Philippine Government in its 25 December 2006 communication to the ILO; in this regard, the Government clarifies that its reply actually indicated that the Supreme Court decision of 28 March 2006 had become final, considering that its authenticity had already been affirmed in the Supreme Court resolution of 14 June 2006.
8. 230. Moreover, the Government considers that since the Supreme Court has already decided the case with finality, the case should be dismissed from the calendar of the Committee on Freedom of Association. It adds that the allegations according to which the aforementioned Supreme Court decision is “fabricated” are baseless and malicious.
9. 231. The Committee notes with regret that the Government indicates no measures taken with regard to the Committee’s recommendation for the review of the dismissals of the entire committee of the USAEU (Theodore Neil Lasola, Merlyn Jara, Julius Mario, Flaviano Manalo, Rene Cabalum, Herminigildo Calzado, Luz Calzado, Ray Anthony Zuñiga, Rizalene Villanueva, Rudante Dolar, Rover John Tavarro, Rena Lete, Alfredo Goriona, Ramon Vacante and Maximo Montero) so as to ensure a conciliation with the university and the reinstatement of the 15 trade union officers. The Committee recalls that these officers were dismissed for not having ensured immediate compliance with an assumption of jurisdiction order issued under section 263(g) of the Labour Code which has been repeatedly found to be contrary to freedom of association principles. The Committee once again recalls in this regard that it has always considered that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association [see 350th Report para. 199; see also Case No. 2252 concerning the Philippines, 332nd Report, para. 886; and 350th Report, para. 171].
10. 232. The Committee further notes that the Court of Appeal and the Supreme Court repeatedly refused to examine the complainants’ contention that their dismissal was illegal since it was carried out while a motion for reconsideration was pending, something which is contrary to Rule 52(4) of the Rules of Court according to which “the pendency of the motion for reconsideration timely filed by both parties shall stay the execution of the decision”. The Committee recalls that, as noted during the previous examination of this case, the Government had indicated in its communication of 31 August 2007 that “[t]he termination of the service of the union officers is an issue that the courts (the Supreme Court and the Court of Appeal) did not specifically discuss or resolve simply because it was a new matter or an issue that cropped up after judicial proceedings – on the core issues of the legality of the strike and bargaining deadlock – were already under way. … Thus, how the declared illegality of the strike would apply to the union officers and members is a new and live issue that the courts have not ruled upon. The Philippines Rules of Court that govern court proceedings preclude determination of new issues at appellate levels; … As the new information furnished by the [complainant] shows, the union is now litigating the termination of service of its officers. … Given the standing Supreme Court ruling on the parties’ dispute, they can raise and litigate on matters which were not litigated or decided on appeal that are not barred under the universally accepted principle of res adjudicata” [see also 350th Report, paras 186–187]. The Committee notes from the latest information brought to it, however, that pursuant to an illegal dismissal complaint filed by the complainant, the NLRC found on 24 April 2008 that the dismissal of the USAEU committee was legal as the issue had already been examined with finality by the Supreme Court. The Committee notes that in its latest communication the Government indicates that the issue had been decided in the final instance by the Supreme Court on 28 March 2006 and the case before the Committee should be closed.
11. 233. The Committee regrets the contradictions which have prevented the dismissed officers and members from having access to an examination of their grievances by a competent body. The Committee emphasizes 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 of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 818]. The Committee recalls in this respect from the previous examination of this case that three cases currently at the follow-up stage with regard to acts of anti-union discrimination in the Philippines [Cases Nos 1914, 2252 and 2488] illustrate the considerable difficulties faced by workers in their efforts to have their grievances examined and recalls once again that the Government is responsible for preventing all acts of anti-union discrimination and that it must ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned [see Digest, op. cit., para. 817].
12. 234. In these circumstances, the Committee once again requests the Government to take measures for an independent review of the dismissal of the entire committee of the USAEU (Theodore Neil Lasola, Merlyn Jara, Julius Mario, Flaviano Manalo, Rene Cabalum, Herminigildo Calzado, Luz Calzado, Ray Anthony Zuñiga, Rizalene Villanueva, Rudante Dolar, Rover John Tavarro, Rena Lete, Alfredo Goriona, Ramon Vacante and Maximo Montero) and to take active steps to ensure a conciliation with the university regarding their reinstatement. The Committee requests to be kept informed in this respect.
13. 235. The Committee also notes with regret that according to the complainant, the employer facilitated on 2 August 2006 the election of a parallel trade union committee by giving financial and other incentives to workers to attend the election which was taking place at the same time as the General Assembly hosted by the legitimate committee. According to the complainant moreover, in a circular dated 6 January 2009 the university president indicated that there are no longer any legal impediments in recognizing the union committee elected with management support on 2 August 2006 given the Supreme Court decision of 28 March 2004 and the NLRC decision of 24 April 2008 (see above). The Committee finally notes the complainant’s allegation that the university is giving financial incentives to demolish the strike area that the complainant has been occupying at the university gate for almost four years now. The Committee notes that in reply to these allegations, the Government indicates that Theodore Neil Lasola, Chairperson of the USAEU filed a petition on 27 September 2006 to nullify the trade union election of 2 August 2006; however, the petition was rejected on the ground that Mr Lasola did not have standing to institute the petition in question because he had not filed an appeal against the notice of termination from employment which he had received on 5 April 2005 and which had been confirmed by the decision of the Supreme Court of 28 March 2006. The Committee nevertheless notes that, as specified by the Government, the complainant had not filed an appeal because it had filed a motion to refer the case to the Supreme Court en banc and this motion was pending at the time.
14. 236. The Committee deeply regrets the fact that the USAEU was effectively denied the right to have its allegations of employer interference heard by the appropriate instances. The Committee emphasizes that Article 2 of Convention No. 98 establishes the total independence of workers’ organizations from employers in exercising their activities [see Digest, op. cit., para. 855] and that Article 3 requires the establishment of an effective mechanism of protection in this regard. Respect for the principles of freedom of association requires that the public authorities exercise great restraint in relation to intervention in the internal affairs of trade unions. It is even more important that employers exercise restraint in this regard. They should not, for example, do anything which might seem to favour one group within a union at the expense of another [see Digest, op. cit., para. 859].
15. 237. The Committee therefore requests the Government to institute an independent inquiry into the allegations of employer interference (financial incentives for trade union members to vote for another committee) and if they are confirmed, to take all necessary measures of redress including sufficiently dissuasive sanctions. The Committee requests to be kept informed of all developments in this respect.
16. 238. With regard to its previous request for steps for the resumption and fruitful continuation of negotiations over the terms and conditions of employment of workers at the San Agustin University not only for the period 2003–05 but also for the future, the Committee recalls the importance of the independence of the parties in collective bargaining and emphasizes that negotiations should not be conducted on behalf of employees or their organizations by bargaining representatives appointed by or under the domination of employers or their organizations [see Digest, op. cit., para. 868.]
17. 239. Noting finally with regret that the Government does not provide any information on the requested independent inquiry into the allegations of anti-union discrimination in the Eon Philippines Industries Corporation and the Capiz Emmanuel Hospital in Roxas City, the Committee once again urges the Government to take all necessary measures in this respect and if the acts of anti-union discrimination are confirmed, to take measures to ensure that the workers concerned are reinstated in their posts without loss of pay. The Committee requests to be kept informed in this respect.