Report in which the committee requests to be kept informed of development - Report No 329, November 2002

1. 722. In a communication dated 15 April 2002, the Association of Airline Pilots of the Philippines (ALPAP) submitted a complaint of violations of freedom of association against the Government of the Philippines.
2. 723. The Government sent its observations in a communication dated 5 June 2002.
3. 724. 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. 725. In a communication dated 15 April 2002, ALPAP firstly explains that it is a legitimate labour organization, comprised of all commercial airline pilots of Philippine Airlines, and, prior to its current dilemma, was its recognized collective bargaining agent. ALPAP is also a member of the International Federation of Airline Pilots. ALPAP then explains that according to the legislation in force in the Philippines, before a strike can be legally conducted, a union must first: (a) file a notice of strike with the Department of Labor and Employment; (b) wait for a period of no less than 30 days in case the strike is due to a deadlock in collective bargaining; seven days in case acts of unfair labour practice are committed. However, a union may strike immediately upon filing of the notice if the acts of unfair labour practice include the termination from employment of union officers. But in every case of a labour dispute, the Secretary of Labor and Employment may determine that the strike can affect public interest and assume jurisdiction over the dispute in which case, if the striking workers have already gone on strike, a return-to-work order is issued forthwith.
2. 726. ALPAP explains further that several acts from the employer, Philippines Airlines Inc. (PAL), led it to stage a strike on 5 June 1998. These acts included: the forced retirement of a 45-year-old pilot; the plan of management to retrench airline employees, including pilots; the filing of a baseless charge against a pilot who was a former union official; and sudden and unexplained delays in the payment of salaries and remittance of union dues. Fearing for their jobs as well as for the existence of the union, ALPAP decided on 5 June 1998 to conduct a general assembly wherein the majority petitioned their officers to take immediate action. After the assembly, ALPAP filed a notice of strike on the grounds of unfair labour practice and union busting. In full conformity with the exception allowed under article 263 of the Labor Code that allows a strike to be staged without a strike vote and the necessity of undergoing a cooling-off period because the survival of the union was at stake, ALPAP staged a strike at around 5.30 p.m. on 5 June 1998. Immediately, the Department of Labor and Employment (DOLE) assumed jurisdiction, called the parties to a conference and issued a return-to-work order dated 7 June 1998. The order gave ALPAP a 24-hour deadline within which to comply therewith. But according to ALPAP, as early as 6 June 1998, PAL circulated an official announcement considering all ALPAP officers to have lost their employment status. After issuing the said announcement, PAL allegedly took the position that any returning pilot would be considered a new applicant to the position, the end result of which would be the pilot forfeiting his retirement benefits.
3. 727. Furthermore, ALPAP claims that while the return-to-work order was issued on 7 June 1998, a copy of the order was not served upon ALPAP until 25 June 1998. In compliance therewith, the striking pilots reported for work at 11 a.m. on 26 June 1998. However, they were no longer accepted by PAL and on 2 July 1998, PAL made it clear that it would not accept the striking workers back on account of their failure to comply with the 24-hour deadline.
4. 728. On 1 June 1999, the Secretary of Labor and Employment, following a motion filed by both parties, came out with a ruling in which he declared the strike conducted by ALPAP on 5 June 1998 and thereafter to be illegal for being procedurally infirm and in open defiance of the return-to-work order of 7 June 1998. Consequently, the strikers were deemed to have lost their employment status. ALPAP then filed a motion for reconsideration, which was denied on 23 July 1999. ALPAP then filed a Petition for Certiorari before the Court of Appeals, which was also denied.

B. The Government’s reply

1. 729. In a communication dated 5 June 2002, the Government states that in its view, the complaint centres on the declaration that the strikes staged by ALPAP on 5 June 1998 and thereafter were illegal. The said strikes were ruled “illegal for being procedurally infirm and in open defiance of the return-to-work order of 7 June 1998”. The Government indicates that the basis for declaring the strikes illegal were discussed in detail in the 1 June 1999 resolution of the Secretary of Labor and Employment as well as the 22 August 2001 Decision of the Court of Appeals. In a resolution issued on 10 April 2002, the Supreme Court dismissed ALPAP’s petition assailing the decision of the Court of Appeals.
2. 730. The Government contends that the national legislation provides for reasonable procedures on the exercise of the right to strike, in particular the requirement of a strike vote (article 263 of the Labor Code). Rule XXII, section 3, of the Rules Implementing the Labor Code states that “... in case of unfair labour practice involving the dismissal from employment of any union officer ... which may constitute union-busting, where the existence of the union is threatened, the fifteen-day cooling-off period shall not apply and the union may take action immediately after the strike vote is conducted and the results thereof submitted to the appropriate regional branch of the Board”.
3. 731. In this regard, the Government points out that the Supreme Court has ruled that the requirement of a strike vote is mandatory because many disastrous strikes had been staged in the past based merely on the insistence of minority groups within the union. Thus, the Government claims that the exception put forward by ALPAP does not exist since the law is clear on the fact that a strike vote must be held before a strike can take place, even in instances where the cooling-off period does not apply. The Government insists on the fact that ALPAP clearly did not conduct a strike vote and that no duly elected officer was dismissed to warrant an immediate strike.
4. 732. Concerning the return-to-work order, the Government recalls that the relevant provision of the Labor Code is article 263(g) which states that:
   • When, in his opinion, there exists a labour dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration. Such assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order. If one has already taken place at the time of assumption or certification, all striking or locked out employees shall immediately return to work and the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout.
   • The Government explains that the return-to-work order of 7 June 1998 recognized the effect of a strike in the airline industry, given the significant PAL market share in passenger and cargo transport.
5. 733. In conclusion, the Government points out that procedural requirements are necessary for the orderly exercise of the right to strike and do not constitute tools of repression to stifle workers.

C. The Committee’s conclusions

1. 734. The Committee notes that in this case, the complainant organization, ALPAP, alleges that after staging a strike against the management of Philippine Airlines Inc. (PAL) for unfair labour practices, the Department of Labor and Employment (DOLE) assumed jurisdiction over the dispute and issued a return-to-work order. ALPAP also claims that as the strike was declared illegal, the consequence was that all striking workers lost their jobs and the union was left practically busted.
2. 735. The Committee notes that according to the Government, the main issue of the complaint lies with the fact that the strike staged by ALPAP on 5 June 1998 was declared illegal for being procedurally infirm and in open defiance of the return-to-work order of 7 June 1998. According to the Government, the fact that ALPAP did not follow the legal requirement of a strike vote before it staged the strike on 5 June 1998 rendered the strike illegal, which was confirmed by different rulings of the national courts, including the Supreme Court in April 2002.
3. 736. In this regard, the Committee recalls that it has, in the past, considered that the obligations to give prior notice to the employer before calling a strike and to take strike decisions by secret ballot are acceptable. However, in the Committee’s view, the problem in the case lies primarily with the content of section 263(g) of the Labor Code. The Committee notes that this provision permits the Secretary of Labor and Employment to submit a dispute to compulsory arbitration, thus bringing an end to a strike, in situations going beyond essential services or an acute national crisis. The provision endows the Secretary with such authority where he is of the opinion that there exists “a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest”. The provision goes on to empower the President to determine “the industries that, in his opinion, are indispensable to the national interest”, and allows him to intervene at any time and assume jurisdiction “over any such labor dispute in order to settle or terminate the same”. In this respect, the Committee recalls that responsibility for declaring a strike illegal should not lie with the Government but with an independent body which has the confidence of the parties involved [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 522]. Furthermore, the Committee observes that for several years now, the Committee of Experts on the Application of Conventions and Recommendations has been requesting the Government to take measures to amend section 263(g) of the Labour Code in order to bring it into conformity with the requirements of the Convention.
4. 737. In this particular case, the Committee notes that less than 48 hours after the strike was staged by ALPAP, the Secretary of Labor and Employment assumed jurisdiction over the conflict and issued a return-to-work order, taking into account the effect of a strike in the airline industry, given the significant PAL market share in passenger and cargo transport. In this regard, the Committee recalls that it has never, in the past, considered transport in general and airline pilots in particular to constitute essential services in the strict sense of the term. The Committee recalls that to determine situations in which a strike could be prohibited, the criterion which has to be established is the existence of a clear and imminent threat to life, personal safety or health of the whole or part of the population [see Digest, op. cit., paras. 540 and 545]. Furthermore, whenever a total and prolonged strike in a vital sector of the economy might cause a situation in which the life, health or personal safety of the population might be endangered, a back-to-work order might be lawful, if applied to a specific category of staff in the event of a strike whose scope and duration could cause such a situation. However, a back-to-work requirement outside such cases is contrary to the principles of freedom of association [see Digest, op. cit., para. 572]. Therefore, the Committee urges the Government to amend section 263(g) of the Labor Code, in order to put it into full conformity with the principles of freedom of association. The Committee asks the Government to keep it informed in this regard.
5. 738. With respect to the sanctions which were imposed upon ALPAP’s striking workers, namely the loss of their jobs, the Committee recalls that the principles of freedom of association do not protect abuses consisting of criminal acts while exercising the right to strike. However, in the present case, it appears that the strike staged by ALPAP was entirely peaceful. The Committee thus recalls 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 constitute a violation of freedom of association. Moreover, the Committee 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. As noted above, some of the limitations on strike action contained in the legislation are not in conformity with the principles arising from Convention No. 87. While acknowledging the fact that ALPAP could be required to hold a strike vote before staging a strike, the Committee nevertheless considers that the Secretary of Labor and Employment should not have assumed jurisdiction over the conflict and put an immediate end to the strike. Furthermore, the Committee is of the view that sanctions, such as massive dismissals, in respect of strike action, should remain proportionate to the offence or fault committed. In these conditions, the Committee requests the Government to initiate discussions in order to consider the possible reinstatement in their previous employment of all ALPAP’s workers who were dismissed following the strike staged in June 1998. It asks the Government to keep it informed in this regard.