Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 342, Junio 2006

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

1. 146. The Committee last examined this case at its November 2005 session [see 338th Report, paras. 304-313]. On that occasion, it requested the Government to: (1) trusting that the proceedings which have been pending for quite some time before the courts with regard to the certification of the Toyota Motor Philippines Corporation Workers’ Association (TMPCWA) will be concluded soon, keep it informed of the final decision as soon as it is handed down; (2) institute an independent inquiry into the allegations of employer interference, in particular, the creation of a new union under the dominance of the corporation, and if such allegations are found to be true, to take the necessary remedial action; (3) provide information on the efforts made to promote negotiations in good faith between the complainant TMPCWA and the Toyota Motor Philippines Corporation (TMPC); (4) keep it informed of developments in respect of the congressional discussions relating to the amendment of article 263(g) of the Labor Code concerning the exercise of the right to strike, as well as any measures taken to amend the national legislation so as to allow a fair, independent and speedy certification process providing adequate protection against acts of employer interference; (5) indicate the measures taken to initiate discussions to consider the reinstatement of the 227 workers dismissed by the corporation and union officers deemed to have lost their employment status or, if reinstatement is not possible, the payment of adequate compensation; and (6) keep it informed of developments in the proceedings and of any measures taken to withdraw criminal charges laid against 18 trade union members and officers and to provide its observations on allegations of harassment, including by the police.
2. 147. The Committee first takes due note of the communications from the complainant of 20 December 2004 and 22 March 2005 and the Government’s reply of 16 May 2005, which have just now been brought to its attention. As the complainant’s communications concern events that have since been surpassed by events indicated in its later communications, including those examined at its meeting in November 2005, the Committee will not set them out in detail here. As for the Government’s reply, the Committee notes the concern it has expressed that the communication of the complainant paints the Government as a conniving partner of the TMPC. The Government asserted that this is an untruthful presentation of the real picture of the dispute designed to generate the recommendations against the Government. The Government emphasized that it has religiously observed Conventions Nos. 87 and 98 and recalled that it had in fact certified the TMPCWA as the sole and exclusive bargaining agent of the company. Mechanisms facilitating the exercise of the right to self-organization and collective bargaining have been instituted. Expeditious resolution of representation issues, ministerial union registration and promotion of responsible unionism as provided in Department Order No. 40-03 is zealously implemented. But compelling the TMPC to negotiate with the TMPCWA is another matter. The controversy has its roots in the challenged votes during the 8 March 2000 certification election. The corporation insisted on its opening as members of the rank and file bargaining unit while the TMPCWA opposed its inclusion. The Department of Labor and Employment (DOLE) rules for its exclusion and thus certified the TMPCWA, but the substantive issue on exclusion or inclusion was still pending at the Court of Appeals. The pending issue has effectively hampered any coercive action on the part of the DOLE to compel the parties to negotiate collectively. The adamant refusal of TMPC to observe DOLE’s order cannot be allowed, but the remedy/ability to compel the corporation to negotiate requires initiatory action from the TMPCWA through the filing of an unfair labour practice case before the National Labour Relations Commission for refusal to bargain pursuant to sections 247 and 248 of the Labor Code. The union had recourse to this action only on 14 February 2005 after another union, the Toyota Motor Corporation Labor Organization (TMPCLO), filed a petition for certification election. The grounds for the union’s unfair labour practice case was alleged company domination of the TMPCLO and not a refusal by the company to bargain. This has sidelined an effective coercive intervention by the DOLE on the employer’s refusal to bargain. The union chose to raise the issue of refusal to bargain only with the National Conciliation and Mediation Board, whose authority is limited to persuasive influence without any adjudicatory or decision-making authority. As a result of this approach by the union, conciliation meetings are ongoing to explore options for the parties to initiate collective bargaining even pending a decision from the Court of Appeals. The Government adds that it is a gross misrepresentation to say that it would authorize another certification election as the petition filed by the TMPCLO was still pending. The Government concludes by stating that the implementation of any effective measures to compel TMPC to negotiate with TMPCWA requires an initiatory action on the part of the union.
3. 148. In a communication dated 9 January 2006, the Government affirms that it has not been remiss in disseminating updates on this case and refers to its previous replies, including the reply of May 2005 noted above. As regards the conclusions of the Committee in November 2005, the Government states that it is not Government policy to simply grant or order the conduct of a certification election, but rather to follow the applicable laws, rules and regulations. In deciding to grant the request by TMPCLO to conduct a certification election, the Government considered the following facts: (1) the strong clamour from a majority of the members of the bargaining unit for a certification election. Of the some 765 employees at TMPC, 174 supported the petition for certification election, while 502 urged for the immediate conduct of the election; (2) the TMPCLO has convincingly proven that there has been substantial change in the composition of the rank-and-file bargaining unit since the election in March 2000. Two of the plants have been merged and the number of employees reduced from 1,100 to 765. The Government states that substantial change in the bargaining unit is a basis for a new certification election and refers to Supreme Court precedent in this regard. In particular, the Government states that, the Supreme Court pronounced that the presumption of continued majority status is subject to the rule that such majority status does not continue forever especially in the face of an assertion and offer of proof to the contrary or in view of altered circumstances which have likely occurred in the interim, or by a change in the conditions which demonstrates that a shift in sentiment actually exists among the employees and is caused by other factors than the employer’s refusal to bargain collectively. The burden of coming forward with proof of majority status is upon the union asserting it and the TMPCWA has not disproved the allegation of substantial change nor has it shown proof that it still enjoys majority representative status; and (3) there are four bars to a petition for certification election: negotiation bar; contract bar; one-year certification bar; and deadlock bar. There is no presence in this case of a negotiation bar or a contract bar. The one-year certification bar lapsed long before the petition for certification. Deadlock bar is not present either as the Supreme Court has ruled that there must be proof that the union has taken action to legally coerce the employer to comply with its statutory duty to bargain collectively either by: (a) filing an unfair labour practice (ULP) case, or (b) staging a legitimate strike in protest against the employer’s refusal to bargain collectively in order to compel it to do so. The records clearly show that the filing of the ULP case and notice of strike was resorted to by the TMPCWA only after the TMPCLO files the petition for certification election. This belated action deterred the Government from effectively intervening to compel the parties to negotiate.
4. 149. The Government adds that the ULP case filed by the TMPCWA on the sole ground of company domination has been dismissed by the National Labor Relations Commission in a decision dated 9 August 2005. The conciliation-mediation efforts to bring TMPCWA and the management to the bargaining table have been unproductive with both parties adopting non-conciliatory positions. The concern that the ordered certification election will be influenced by the TMPC is unwarranted since there are built-in mechanisms in the conduct of certification elections to ensure the free and honest expression of the will of the members of the bargaining unit. As the TMPCWA is also included as a choice in the certification election, the election could actually affirm the majority status of the TMPCWA.
5. 150. As regards the 277 dismissed members and officers of the TMPCWA, 42 per cent (105) have already availed themselves of the compensation package. With regard to the criminal charges of grave coercion, the Government asserts that these are beyond the realm of the employer-employee relationship and outside the ambit of the right to strike, the complainants therein being private individuals. Without desistance from the private complainants, the Government cannot withdraw or dismiss the case.
6. 151. As regards section 263(g) of the Labor Code, the Government states that the Secretary of Labor and Employment made specific instruction to review and revise the entire Labor Code even before the Toyota dispute. The Government refers in particular to House Bill No. 1505 which proposes to amend this section by limiting the assumption power of the Secretary of Labor and Employment to enterprises engaged in providing essential services such as, hospital, electrical services, water supply and communication and transportation. Senate Bill No. 1027 which proposes to amend this section is still pending in the Committee on Labor. Finally, the Government states that sanctions for participation in illegal strikes have also been taken up in these deliberations so as to ensure that participants in strikes that are eventually declared illegal are imposed with penalties commensurate to their participation and involvement.
7. 152. In a communication dated 27 March 2006, the complainant organization alleges that the Government has not implemented the Committee’s recommendations and instead has conspired with the TMPC to continue the new certification election on 16 February 2006. Having fearlessly joined the election, the TMPCWA managed to fail the recognition of the company-sponsored union, the TMPCLO. According to the complainant, while the Department of Labor has not yet issued any resolution about the results of the election, it is favouring the TMPCLO by granting its motion to open the challenged votes’ envelopes and ordering the parties to submit position papers for the opening of segregated ballots. The TMPCWA is taking legal action to prevent the opening of the challenged votes. The complainant requests the Committee to strongly urge the company and the Government to settle the long and worsening labour dispute in the country.
8. 153. The Committee takes due note of the detailed information provided by the Government in this case, including its earlier communication of May 2005, the open and constructive dialogue it has maintained as well as the various efforts it has made to resolve this dispute, and the limitations it asserts is placed upon it in this regard due to the lack of timely action by the complainant under national law. The Committee must note with regret, however, that no new information has been provided in respect of the appeal made by the Toyota Motor Philippines Corporation (TMPC) regarding its insistence that the certification election of 2000 should have been opened to the members of the rank-and-file bargaining unit, particularly given that this appears to be the substantive reason behind the non-recognition of the Toyota Motor Philippines Corporation Workers’ Association (TMPCWA). Indeed, it would appear from the latest allegations made by the TMPCWA that this same question is at issue in respect of the latest certification election, which took place on 16 February 2006. The Committee firmly expects that the Court of Appeal will be in a position to render its decision in this matter without delay so that conditions for the certification elections at TMPC can be firmly and clearly established. The Committee requests the Government to keep it informed in this regard and to transmit a copy of the Court of Appeal’s judgement as soon as it is rendered.
9. 154. As regards the allegation that a new union was created at the TMPC under the dominance of the corporation, the Committee takes due note of the Government’s indication that the unfair labour practice case filed by the TMPCWA with the National Labor Relations Commission in respect of this matter was dismissed in a decision dated 9 August 2005 and requests the Government to transmit this decision. The Committee further requests the Government to transmit its observations in respect of the latest allegations of the complainant concerning the new certification election of February 2006, as well as any decisions rendered in respect of the legal action taken by the complainant.
10. 155. The Committee notes with interest the Congressional discussions relating to the amendment of article 263(g) of the Labor Code, as well as those relating to the proportionality of sanctions for illegal strike action. The Committee would recall in respect of the specific proposed House Bill No. 1505 that transport generally does not constitute an essential service in the strict sense of the term [see Digest of decisions and principles of the Freedom of Association Committee, 1996, para. 545]. Given the long-standing issues in this case in respect of union certification for collective bargaining purposes, the Committee strongly suggests once again to the Government to consider measures to allow a fair, independent and speedy certification process providing adequate protection against acts of employer interference and draws the legislative aspects of this case to the Committee of Experts on the Application of Conventions and Recommendations.
11. 156. As regards the 227 union officers and members dismissed from the TMPC, the Committee notes the Government’s reply that 42 per cent of these workers have accepted the compensation package. The Committee regrets, however, that, given the long period that has elapsed since these dismissals, it has no information in respect of the 122 other workers and requests the Government to provide information on the measures taken to initiate discussions to consider their reinstatement, or if not possible, the payment to them of adequate compensation.
12. 157. As regards the criminal charges laid against 18 trade union members and officers, the Committee takes due note of the Government’s indication that the complainants in this case are private individuals and the charges are outside of the realm of the employer-employee relationship. In these circumstances, the Government indicates that it has no authority to withdraw or dismiss the case. Given the length of time since this criminal action was first instituted against the 18 trade unionists, the Committee firmly expects that these cases will be decided in the very near future so as to avoid the damage that can result from long unresolved cases against union leaders. The Committee requests the Government to transmit a copy of the relevant court judgements as soon as they are rendered. The Committee further observes that no information has been provided in respect of the allegations of harassment by the police in respect of these 18 unionists. It, therefore, requests the Government to institute an independent inquiry into these allegations and to keep the Committee informed of the outcome.