Interim Report - Report No 387, October 2018

1. 611. The Committee last examined this case at its October–November 2017 meeting, when it presented an interim report to the Governing Body [see 383rd Report, paras 519–537 approved by the Governing Body at its 331st Session].
2. 612. The Government provides its observations in a communications dated 31 January and 28 September 2018.
3. 613. 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. Previous examination of the case

1. 614. At its October 2017 meeting, the Committee made the following recommendations [see 383rd Report, para. 537]:
   • (a) Noting with concern that, of the three cases of alleged harassment involving military personnel, only the case of Rogelio Cañabano was deemed by RTMB-XI as freedom of association related, the Committee generally considers that the Government should ensure that, with respect to the working of the non-judicial monitoring bodies such as the IAC or the RTMBs, the criteria used for screening cases for its consideration should be broader than the judicial criteria used by the courts so as to not unduly exclude possible freedom of association cases and to ensure that labour activity or trade union function, even though other factors may be being considered, give rise to an in-depth review of the possible motivation. The Committee also requests the Government to take the necessary measures to ensure the full and swift investigation and resolution of the alleged acts of harassment of the above trade union leaders and members of KMU-affiliated unions, even if not committed by state actors, and to report on any investigation conducted and any remedies applied, including by the IAC and the AFP–HRO. The Committee also requests the Government to keep it informed on any forthcoming NTIPC–MB resolutions on the above cases.
   • (b) With reference to the relevant RTMB-XI recommendations and Resolution No. 1, series of 2016, the Committee trusts that the integration of human rights in the curriculum of the AFP and PNP and the conduct of related training and capacity-building activities for the latter, will be sustained, also integrating specific modules on freedom of association and labour rights in recruitment and in the curriculum and training of the PNP and AFP. The Committee expects once again that the Government will take the necessary accompanying measures, including the issuance of appropriate high-level instructions and training, to: (i) ensure the strict observance of due process guarantees in the context of any surveillance, interrogation or other operations by the army and police in a way that guarantees that the legitimate rights of workers’ organizations can be exercised in a climate that is free from violence, pressure or threats of any kind against their leaders and members; and (ii) to restrict as far as possible prolonged military presence inside workplaces which is liable to have an intimidating effect on the exercise of trade union rights. The Committee encourages the Government to continue to take steps to raise awareness in the army and police about the need to disassociate the conduct of legitimate trade union activities from insurgency.
   • (c) With respect to the remaining three cases of alleged harassment not involving military personnel, the Committee generally trusts that the Government will establish fast-track procedures for freedom of association violations committed by non-state actors and requests to be kept informed of developments. More specifically, concerning the case regarding Vicente Barrios, the Committee strongly requests the Government to take all necessary measures to guarantee his security, particularly in view of the newly reported death threats directed against him and to report on the outcome of the proceedings instituted with respect to the most recent alleged act of harassment. As to the case concerning the RDEU, the Committee requests the Government to take the necessary measures to ensure the full and swift investigation and resolution of the alleged acts of harassment of trade union leaders and members of the RDEU, to provide a copy of the NLRC resolutions related to their termination and to keep it informed of the outcome of the ongoing appeal proceedings in this regard.

B. The Government’s reply

1. 615. In its communication dated 31 January 2018, the Government indicates that the Administrative Order No. 35 Inter-Agency Committee (IAC) uses the following criteria in evaluating whether a case is considered as an extrajudicial killing case that would fall under its jurisdiction: (i) the victim was either a member of, or affiliated with, an organization to include political, environmental, agrarian, labour or similar causes; or an advocate of the abovementioned causes; or a media practitioner; or apparently mistaken or identified to be so; (ii) the victim was targeted and killed because of the actual or perceived membership, advocacy or profession; (iii) the person responsible for the killing is a state agent or non-state agent; and (iv) the method and circumstances of attack reveal a deliberate intent to kill. The National and Regional Tripartite Monitoring Bodies use the following ILO criteria on the admissibility of cases and complaints: (i) the alleged facts, if proved, would not constitute an infringement of the exercise of trade union rights; or (ii) the allegations made are so basically or obviously political in character that it is undesirable to pursue the matter further; or (iii) the allegations made are too vague to permit a consideration of the case on its merits; or (iv) the complainant has not offered sufficient evidence to justify the allegations on the matter. Under the first criteria, cases and complaints can be classified as possibly labour-related under Convention No. 87 if the circumstances of the case would constitute an infringement of the exercise of freedom of association and the right to organize or possibly not labour-related under Convention No. 87 if the circumstances of the case would not constitute an infringement of the exercise of freedom of association and the right to organize. The investigating and monitoring mechanisms thus use broad criteria fully cognizant of freedom of association cases; however, what greatly affects the admissibility of cases is the sufficiency of information and evidence provided by complainants to justify the allegations reported, as lack of information, despite numerous efforts to obtain it, hinders proper evaluation and classification of the case.
2. 616. Another significant development in the Government’s efforts to ensure the full and swift investigation and resolution of the alleged acts of harassment of trade union leaders and members is the issuance of the Department of Labour and Employment (DOLE) Administrative Order No. 32, series of 2018, establishing the Operational Guidelines of the National and Regional Tripartite Monitoring Bodies on the Application of International Labour Standards, in particular the ILO Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Guidelines will apply in the conduct of verification, documentation, evidence and data gathering, monitoring and processing of information, reports, complaints and cases, whether in the private or public sector, involving: pending cases before the ILO; labour-related extrajudicial killings; violations and interference to the exercise of freedom of association, including harassment, abduction and enforced disappearances; and violations of the Joint DOLE–Philippine National Police (PNP)–Philippine Economic Zone Authority (PEZA) Guidelines in the Conduct of PNP Personnel, Economic Zone Police and Security Guards and Similar Personnel During Labour Disputes, and the Guidelines on the Conduct of DOLE, Department of the Interior and Local Government (DILG), Department of National Defense (DND), Department of Justice (DOJ), Armed Forces of the Philippines (AFP) and PNP Relative to the Exercise of Workers’ Rights and Activities, which include the observance of DOJ Memorandum Circular No. 16, series of 2014, on the requirement for DOLE clearance prior to taking cognizance of complaints for preliminary investigation.
3. 617. The Government further indicates that the Development Cooperation Project of the DOLE, the ILO and the EU Generalized System of Preferences Plus (EU GSP+) aims at improving the capacity of labour, employers and the Government towards better implementation and application of the right to freedom of association and collective bargaining. In particular, the National Action Plan under the Development Cooperation Project provides for: a review and updating of the operational guidelines of the investigating and monitoring bodies in order to include cases of harassment and to further strengthen and improve their operationalization (processes, structures), as well as coordination and interplay between them; improving the capacity of sectoral representatives on case building and monitoring; strengthening coordination between existing monitoring and investigative mechanisms on case handling; and improving the capacity of the police, the military and other security forces on freedom of association and collective bargaining as embodied under the PNP and AFP Guidelines, as well as on existing monitoring and investigative mechanisms. All the activities are geared towards capacitating state actors and stakeholders and facilitating investigation and resolution of the alleged acts of harassment and killings of trade union leaders and members. In this regard, two major capacity-building activities will be conducted in the first semester of 2018. The first one is a capacity-building seminar in March 2018 for selected representatives from the National Tripartite Industrial Peace Council Monitoring Body (NTIPC-MB), Regional Tripartite Monitoring Body (RTMB) and Commission on Human Rights (CHR) on case build-up and documentation. It aims at: improving the participants’ understanding of international labour standards, particularly Conventions Nos 87 and 98, and their protection by national laws and regulations; capacitating regional and local trade union participants on the rules of criminal procedure and possible areas for contribution and participation in case building and monitoring of alleged labour-related human rights abuses; and improving the capacity of sectoral representatives to aid in the speedy prosecution and disposition of labour-related cases. The second activity in May 2018 is a multisectoral trainers training workshop on freedom of association and collective bargaining and existing guidelines governing the engagement of various social partners and stakeholders during labour disputes, including public prosecutors, the police and court judges. This activity primarily aims to produce a pool of trainers fully equipped and well-capacitated on international labour standards, specifically on the principles of freedom of association and collective bargaining, as well as on the mechanisms, requirements and procedures embodied in existing guidelines governing the engagement of various social partners and stakeholders in labour disputes.
4. 618. The Government also states that aside from ensuring the expeditious investigation, prosecution and resolution of pending cases concerning alleged harassment and assassination of labour leaders and trade union activists, the Development Cooperation Project on freedom of association and collective bargaining covers a combination of integrated strategies, including awareness raising, training and capacity building of relevant government bodies, workers, employers and other social partners in order to support better application of freedom of association, civil liberties, social dialogue, industrial relations, collective bargaining and voluntary dispute mechanisms. The capacity building focuses on orienting and developing the knowledge and capacities of the social partners regarding international labour standards, particularly freedom of association and collective bargaining, as embodied under Conventions Nos 87 and 98. In addition, the National Action Plan provides for the incorporation of freedom of association and collective bargaining principles in the PNP and AFP training curriculum used in recruitment and training, which is intended to institutionalize these principles in the police and military educational system, improve recognition and understanding of labour rights, promote respect for workers’ right to self-organization and collective bargaining and ultimately foster a climate free from violence, pressure or threats of any kind. The PNP also introduced a mobile application called “Know Your Rights” which contains information on fundamental rights and police operational procedures. The application is mandatory in the smartphones of all PNP personnel, giving access to information on PNP human rights advisories and policies, including the contents of the new Miranda warning pocket card, as well as anti-torture reminders, thus guiding police officers in their operations but also protecting civilians, including those arrested or invited for questioning, from abuse as they are made aware of their rights.
5. 619. In its communication dated 28 September 2018, the Government indicates that the DOLE shall conduct a Multisectoral Trainers’ Training on freedom of association and collective bargaining, in cooperation with the ILO and other concerned agencies, in November 2018. This activity is part of the tripartite-formulated National Action Plan on freedom of association and collective bargaining which seeks to capacitate social partners and stakeholders, who may be tapped as resource persons and advocates of freedom of association and collective bargaining, in delivering lectures and/or learning sessions particularly on existing guidelines governing the engagement of various social partners and stakeholders during labour disputes. Participants to this training shall include representatives from the DOLE, Department of the Interior and Local Government, Department of National Defense, Department of Justice, Commission of Human Rights, Philippine Economic Zone Authority, National Tripartite Industrial Peace Council-Monitoring Body, Regional Tripartite Monitoring Bodies, and the AFP and the PNP. The Government further informs that the AFP and PNP, through their senior officers in Davao Region, have affirmed that the AFP Guidelines had been integrated in their respective education programs and assured that the guidelines would be strictly followed within their ranks. This commitment was manifested during the Regional Inter-Agency Coordinating and Monitoring Committee (RICMC) meeting on 20 September 2018.
6. 620. Furthermore, concerning fast-track procedures for freedom of association violations committed by non-state actors, the Government states that the full and swift investigation and resolution of cases are already guaranteed under section 16, article III of the Philippine Constitution which provides that all persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial or administrative bodies. The Government indicates that these constitutional guarantees are afforded to all citizens of the Philippines, irrespective of status, class or affiliation and firmly stresses its commitment to, and observance of, the right to speedy trial and due process. The Government ensures that it is exerting its best efforts in undertaking the full and swift investigation and resolution of all alleged acts of harassment and killings of trade union leaders and members, as can be seen from the numerous projects undertaken in cooperation with the social partners, as well as the various reforms instituted in pursuance thereof.
7. 621. With regard to the case of Vicente Barrios, the Government emphasizes that it would not have been settled amicably at the barangay level were it not for the prompt and timely interventions rendered and that in a recent interview with the DOLE, Mr Barrios attested in an affidavit executed on 29 January 2018 that after the settlement with Mr Jesus Jamero at the barangay level, he no longer received any death threats. The case concerning the Radio Mindanao Network Davao Employees Union (RDEU), which involved the termination of eight of its union members pursuant to several National Labour Relations Commission (NLRC) resolutions, is currently pending in the appellate court and the executive branch cannot intervene, trusting that there are processes in place to resolve the dispute judiciously.
8. 622. Finally, the Government indicates that since this case is under the regular process of criminal prosecution and litigation and that all possible actions at the administrative level have been completed, the status of the case should be reclassified as a case in which the Committee requests to be informed of developments.

C. The Committee’s conclusions

1. 623. The Committee recalls that the present case concerns allegations of harassment, intimidation and threats against trade union leaders and members by the armed forces in collusion with private companies.
2. 624. The Committee notes the detailed information provided by the Government with regard to the criteria used by non-judicial investigating and monitoring bodies to screen cases for their consideration and notes that, according to the Government, the criteria are broad and fully cognizant of freedom of association cases but admissibility depends on the sufficiency of information and evidence provided by the complainants. The Committee further notes with interest the measures taken by the Government to ensure investigation and resolution of the alleged acts of harassment of trade union leaders and members, including the issuance of the Operational Guidelines of the National and Regional Tripartite Monitoring Bodies on the Application of International Labour Standards, in particular the ILO Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Committee also observes that the National Action Plan focuses on improving and strengthening coordination between the investigating and monitoring bodies and that two major capacity-building activities will be conducted to capacitate state actors and stakeholders and facilitate investigation and resolution of allegations of harassment and killings of trade union leaders and members. Welcoming these initiatives, the Committee firmly expects that they will significantly contribute to swift and efficient investigation and resolution by the relevant mechanisms with a view to putting an end to extrajudicial killings, harassment and other forms of interference in the exercise of freedom of association, and that labour activity or trade union function would be sufficient evidence to give rise to an in-depth review of the possible motivation.
3. 625. The Committee further notes with interest the measures taken to improve the knowledge of human rights and freedom of association among the military, the police and other state actors, in particular that: the ongoing Development Cooperation Project provides for a combination of integrated strategies, including awareness raising, training and capacity building for relevant government bodies, workers, employers and other social partners in order to support better application of freedom of association, civil liberties, social dialogue, industrial relations, collective bargaining and voluntary dispute mechanisms; the National Action Plan aims at increasing the capacity of the police, the military and other security forces on freedom of association and collective bargaining and incorporates freedom of association and collective bargaining principles in the PNP and AFP curriculum so as to institutionalize these principles in the police and military educational system; and a mandatory mobile application on telephones of all PNP personnel contributes to guiding the police in their operations and protecting civilians from abuse. The Committee firmly expects that the measures taken will be sustained and will significantly contribute to raising awareness of trade union rights in the army and the police. The Committee expects that the Government will take all necessary further measures to ensure protection for legitimate trade union activities. The Committee expects once again that the Government will take the necessary accompanying measures, including the issuance of appropriate high-level instructions and training to: (i) ensure the strict observance of due process guarantees in the context of any surveillance, interrogation or other operations by the army and police in a way that guarantees that the legitimate rights of workers’ organizations can be exercised in a climate that is free from violence, pressure or threats of any kind against their leaders and members; and (ii) to restrict as far as possible prolonged military presence inside workplaces which is liable to have an intimidating effect on the exercise of trade union rights. The Committee requests the Government to keep it informed of any developments in this regard.
4. 626. The Committee notes, however, that despite the detailed general information provided above, the Government does not elaborate on the investigation and resolution of the cases concerning Rogelio Cañabano, Perlita Milallos and Musahamat union members and activists, which mainly involve allegations of harassment by the military through frequent military visits and interrogation about union function and activities. Recalling that acts of intimidation and physical violence against trade unionists constitute a grave violation of the principles of freedom of association and the failure to protect against such acts amounts to a de facto impunity, which can only reinforce a climate of fear and uncertainty highly detrimental to the exercise of trade union rights [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 90], and in view of the lack of updated information in this regard, the Committee requests the Government once again to take the necessary measures to ensure the full and swift investigation and resolution of the alleged acts of harassment of the above trade union leaders and members of KMU-affiliated unions, even if not committed by state actors, and to report on any investigation conducted and remedies applied, including by the IAC and the AFP human rights officer (AFP-HRO), as well as any forthcoming NTIPC-MB resolutions in the above cases.
5. 627. With regard to the remaining cases of alleged harassment not involving the military personnel, the Committee notes the Government’s general indication that the full and swift investigation and resolution of cases are guaranteed under section 16, article III of the Philippine Constitution and that the Government is exerting its best efforts in undertaking the full and swift investigation and resolution of all alleged acts of harassment and killings of trade union leaders and members. Concerning the case of Vicente Barrios, the Committee notes that, according to the Government, it has been settled amicably and that in January 2018, Mr Barrios attested that after the settlement with Mr Jesus Jamero he no longer received any death threats. The Committee welcomes this information and trusts that Mr Barrios will no longer be subjected to any form of intimidation or harassment. The Committee further notes the Government’s indication that the case concerning the RDEU, which involved termination of all RDEU members pursuant to several NLRC resolutions, is currently pending in the appellate court and that the dispute should be resolved judiciously. Since it is unclear from the information provided whether the ongoing judicial proceedings also deal with the allegations of threats and harassment by the management or only focus on the termination of RDEU members, the Committee requests the Government to clarify whether the alleged acts of harassment form part of the judicial proceedings and if not, requests it once again to take the necessary measures to ensure the full and swift investigation and resolution of these allegations. The Committee also requests the Government to provide a copy of the relevant NLRC resolutions related to the termination of RDEU members and to keep it informed of the outcome of the ongoing appeal procedures.