Informe provisional - Informe núm. 234, Junio 1984

1. 521. The Kilusang Mayo Uno (KMU) presented a complaint of violations of trade union rights in the Philippines in a communication dated October 1982 and received in the ILO on 7 April 1983. The Government supplied certain information concerning the case in communications dated 13 January and 18 April 1984 (the latter received on 8 May 1984).
2. 522. The Philippines have 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. 523. The KMU alleges that the Government has violated Conventions Nos. 87 and 98 by the arrest and detention without charge of a large number of trade unionists, including trade union officials, the confiscation of trade union property after raids on trade union premises and by restrictions on freedom of association and the right to bargain collectively contained in various legislative provisions.
2. 524. The KMU explains that it is a confederation of workers' organisations established on 1 May 1980, having its first elections on 7 July 1980. According to the KMU it covers approximately 150,000 workers and has, as affiliates, the following organisations: National Federation of Labor Unions (NAFLU), National Federation of Labor (NFL), National Federation of Sugar Workers (NFSW), the Philippine Alliance of Nationalistic Labor Organisations (PANALO), and the Association of Democratic Labor Organisations (ADLO). It points out that it is. a duly registered labour federation with the Ministry of Labor.
3. 525. According to the KMU, its former Chairman, Mr. Felixberto S. Olalia, was arrested on 13 August 1982 against the background of a strike by the Ding Velayo export workers, together with 13 other trade union leaders, among them being Mr. C. Malonzo (NFL Vice-President), and Mr. Tuazon (NFL organiser). At the time of the complaint, Mr. Olalia had been held without charge. In this connection, the KMU also alleges that the official police forces had, on 13 November 1981, seized and tortured a national council member of the KMU, Mr. R. Nolasco, and although the Minister of National Defense had stated that an investigation would be held into the matter, the results were at the date of the complaint not yet known. According to the KMU, a few days after Mr. Olalia's arrest, Mr. C. Beltran, the then Vice-Chairman now Secretary General of the KMU, was also arrested.
4. 526. In addition, the KMU alleges that on 13 and 14 August 1982 the Metropolitan Police raided and ransacked the offices of the KMU, PANALO, NFL and NAFLU, stealing property belonging to these organisations such as Gestetner mimeograph machines, filing cabinets and typewriters. According to the KMU, two military colonels supervised the activities of the various military groups.
5. 527. The KMU states that Articles 3 and 10 of Convention No. 87 are also infringed by Act No. 130 of 17 August 1981, which restricts the rights of workers to organise and which, in practice, leads to serious restrictions on the right to strike since the Minister of Labor and Employment may assume jurisdiction over a dispute to decide it himself or may refer the dispute to the National Labor Relations Commission if he deems it to affect the national interest. The complainant alleges that sections 264, 273 and 271 of the Labour Code are contrary to the Convention since section 264 defines "national interest" very broadly and also requires a secret ballot of two-thirds of the entire union membership in the bargaining unit to enable a strike to be legal. Under section 273, participation in an unlawful strike is punishable by imprisonment up to five years. Section 271 of the Code prohibits trade unions from receiving financial assistance from organisations, such as international union federations, which the KMU alleges is contrary to Article 5 of Convention No. 87. It also considers that the Government excessively restricts freedom of association in the public sector, in particular as regards civil servants. The complainant notes that the Committee of Experts on the Application of Conventions and Recommendations has previously made comments on all the above legislative points.
6. 528. The KMU further alleges that the Government has failed to honour, in practice, Convention No. 98, in particular Article 2 thereof, by promoting the Trade Union Confederation of the Philippines which is not a genuine workers' organisation but which is sponsored and sustained by the Government and by employers. In addition, according to the KMU, Article 4 of Convention No. 98 is violated since the Government has imposed requirements of procedural agreements through Act No. 130 and Presidential Decrees Nos. 823 and 368.
7. 529. Lastly, the complainant organisation refers to the "Report of an amnesty international mission to the Republic of the Philippines, 11-28 November 1981", published in 1982, which documents attacks on Filipino trade unionists. The KMU refers to examples of such attacks on its own members: Mr. Felix Ocido, organiser for the Mindanao Federation of Labor affiliated to the KMU, was arrested without warrant by a member of the Integrated Civilian Home Defense Force on 3 August 1981 and taken to the PC barracks in Tagum. According to the KMU, the authorities refused to acknowledge that he had been detained. He was subject to torture and ill treatment and has subsequently disappeared; Antonio Santa Ana and Jemeliana Paguio, trade union organisers of the Bataan Export Processing Zone, were arrested by the 176th PC Company in Orion on 24 June 1981. A court order for the temporary release of Mr. Sta. Ana was obtained but, according to the KMU, the PC refused to release him. On 7 July 1981 their relations were told that they had "escaped", but nothing has been subsequently heard of them despite correspondence to President Marcos himself. According to the KMU the more recent attacks by the Government have resulted in the arrest of 71 trade unionists.

B. The Government's reply

1. 530. In its communication dated 13 January 1984, the Government states that Mr. Felixberto Olalia died on 4 December 1983 from a lingering heart ailment at the St. Luke's Memorial Hospital. Under Philippine law and jurisprudence, criminal action and all liability is totally extinguished by death and therefore the dismissal of the charges brought against Mr. Olalia will follow as a matter of course. The Government also states that all the accused persons in Criminal Case No. Q-21741 for conspiracy to create rebellion or insurrection under article 136 of the Revised Penal Code have been provisionally released with the exception of Mr. Crispin Beltran.
2. 531. To this communication the Government attaches a copy of the charge sheet established for Criminal Case No. Q-21741, dated 14 April 1983, and indicting 69 named persons, including Mr. Felixberto Olalia and Mr. Crispin Beltran. The Government also encloses copies of orders made by the Regional Trial Court of Quezon City in Criminal Case No. Q-21741, postponing hearings in this case until 18 January 1984.
3. 532. In its communication of 18 April 1984, the Government states that the arrest and detention of the trade unionists were based, according to the records, not on legitimate trade union activities but on alleged commission of crimes against public order and acts tending to endanger national security. The detention of those concerned has not impaired in any way the exercise of their rights to organise and bargain collectively since the unions to which they belong continue to function fully and normally. The Government encloses a copy of a Court Order dated 15 February 1984 postponing the hearing of Criminal Case No. Q-21741 until 20 June 1984. Regarding the legislative aspect of the case, the Government refers to the Committee of Experts' comments made in 1981, 1982 and 1983 and its replies thereto, details of which are as follows.
4. 533. The grant of authority under s. 264 of the Code to the Minister of Labour and Employment and the President of the Philippines to assume jurisdiction and decide a case or the Labour Minister to certify a case for arbitration, in case of labour disputes causing or likely to cause strikes adversely affecting the national interest, is designed to provide a smooth transition towards a more liberal exercise of the right to strike. The authority is being exercised with extreme caution and availed of only when conditions for its exercise are very clear. Statistics show that in 1982 the authority was exercised by the Labour Minister in only 23 of the 727 strike notices filed and there has been no occasion when the President intervened in a labour dispute. The present labour relations law is the subject of continuing study and review to keep it responsive to national development goals and bring it in closer conformity with the ILO Convention.
5. 534. The requirement of s. 271 of the Labour Code for prior authorisation from the Minister of Labour and Employment before labour organisations may receive donations, grants and other forms of assistance is not intended, is not likely to unreasonably deprive and has not in fact deprived unions of resources they may get from legitimate international workers organisations. The law clearly respected international trade union affiliation and would not hinder such a relationship with their local affiliates. No instance of disapproval of assistance can be cited since the law was implemented. This can be confirmed by all trade unions in the country. The law primarily requires the reporting of such assistance or donations to insure that they are not intended for purposes other than lawful. It therefore assures the Government that such foreign assistance is actually made and designed to help promote trade unionism in the country. It bears noting that the regulation and reporting of the inflow and outflow of foreign funds, even for trade union purposes, has traditionally been a part of State's exercise of its sovereignty.
6. 535. Regarding alleged violation of Article 2 of Convention No. 98, by the promotion of a government-sponsored trade union, the Government states that under s. 249 of the Labour Code, it is unlawful for any employer to interfere with, restrain or coerce employees in the exercise of their right to self-organisation. Further, it declares it an unfair labour practice for an employer to initiate, dominate, assist or otherwise interfere with the information or administration of any labour organisations, including the giving of financial or other support to it or its organisers or officers. In addition, s. 249 of the Labour Code provides that it is unlawful for an employer to require as a condition for employment that a person or an employee shall not join a labour organisation or shall withdraw from one to which he belongs or to discriminate in regard to hire or tenure of employment or any term or condition of employment in order to encourage or discourage memberships in any labour organisation.
   • The Labour Code also provides that an employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and to his back wages computed from the time his compensation was withheld from him up to the time of his reinstatement. On the part of labour organisations, it is an unfair labour practice to cause or attempt to cause an employer to discriminate against an employee including discrimination against an employee with respect to whom membership in such organisation has been denied or terminated on grounds other than the usual terms and condition under which membership or continuation of membership is made available to other members. Act No. 70 considers the commission of an unfair labour practice as a criminal act. Before a criminal case may be filed however, a prior conviction on the administrative aspects of the case by the National Labour Relations Commission is required.
7. 536. As regards the alleged violation of Article 4 of Convention No. 98 by the imposition of procedural requirements for collective agreements, the Government explains that Act No. 130 removed the requirement that a collective agreement must be certified by the Bureau of Labour Relations. Section 3 of Act No. 130, amending s. 231 of the Labour Code merely requires that the parties submit copies of their collective agreement to the Bureau through the Regional Office. Such agreement shall be accompanied with a proof of ratification by the majority of all the workers in the bargaining unit. The Government adds that the previous requirement for certifying collective agreement did not have the effect of invalidating an agreement which is otherwise valid between the parties. The only effect of a certification on a collective agreement was to make it a bar to a certification election to determine the exclusive collective bargaining agent of the workers. Under present law and practice, there are no restrictions regarding free fixing of salaries by means of collective bargaining.

C. The Committee's conclusions

1. 537. After making a detailed examination of the allegations and the reply submitted by the Government, the Committee can only express its deep concern at their seriousness: the arrest and detention of certain trade unionists since August 1982, the fact that the criminal case brought against them before the Quezon City Court is continually postponed, the torture of one trade union leader, the attack on the premises of certain trade unions and confiscation of their property (to which the Government makes no reference), government interference in the free trade union movement by the promotion of false workers' organisations and the various restrictive anti-union provisions existing in the legislation.
2. 538. First, the Committee notes that the ILO Committee of Experts on the Application of Conventions and Recommendations, taking into account the same reply supplied by the Government in the present case, has made comments for some years on various aspects of the Philippines' labour legislation, -'n particular section 264 of the Labour Code. In these circumstances, the Committee endorses the Committee of Experts' request made to the Government in its 1984 observation that the Government take the necessary measures to bring its legislation into conformity with Convention No. 87 as regards the various points raised.
3. 539. As regards the allegations of arrest and detention of trade union leaders, the Committee notes that it has recently examined a similar case against the Government of the Philippines. [See 222nd Report, paragraphs 276 to 286, approved by the Governing Body at its 222nd Session, March 1983 and 226th Report, paragraphs 294 to 302, approved by the Governing Body at its 223rd Session, May-June 1983.] In that case, Case No. 1157, the Committee drew the Government's attention to the importance which it attaches to the principle of prompt and fair trial by an independent and impartial judiciary in all cases, including cases in which trade unionists are charged for political or criminal offences which the Government considers have no relation to their trade union activities. As it appears that the criminal case concerning certain trade union leaders arrested in August 1982 continues to be heard before the Court of First Instance of Quezon City, the Committee would again draw this principle to the Government's attention and would request the Government to transmit as soon as possible information on developments in the case. In this connection it notes that, as a result of the death of Mr. F. Olalia, the criminal proceedings against him have ceased.
4. 540. As regards the unanswered allegation that at least one trade union leader was subjected to torture while held in detention, the Committee would point out that it has maintained in the past the importance of carrying out an inquiry into allegations of ill-treatment in order to establish responsibilities and of taking appropriate action, in particular, to give precise instructions and apply effective sanctions so as to ensure that no detainee is subjected to such ill treatment. [See 172nd Report, Case No. 824 (Argentina), paragraph 57, and 194th Report, Case No. 919 (Colombia), paragraph 355.] It would ask the Government to keep it informed of any steps taken in this regard.
5. 541. As concerns the alleged raid by the metropolitan police on various trade union headquarters and the seizure of trade union property, the Committee regrets that the Government makes no comment on this. It has recalled in the past that, in the Resolution on trade union rights and their relation to civil liberties [adopted by the International Labour Conference at its 54th Session in 1970), the Conference expressed the view that the right to protection of trade union property was one of the civil liberties which are essential for the normal exercise of trade union rights. The Committee accordingly expresses its regret that this basic right was not respected and would impress upon the Government the importance of restoring to the unions concerned their property and of ensuring that there is no recurrence of such events.
6. 542. As regards the alleged violations of Convention No. 98 by government interference in setting up pro-government trade unions, the Committee notes the Government's reference to provisions of the Labour Code prohibiting employer interference in the establishment and functioning of workers' organisations. It considers that this allegation essentially appears to concern the question of representativity of unions for collective bargaining purposes. In the absence of more detailed information from the complainant organisation, the Committee would recall the principle that the determination of the most representative trade union should always be based on objective and pre-established criteria so as to avoid any opportunity for partiality or abuse [see, for example, 197th Report, Case No. 918 (Belguim), para. 159].