Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 343, Noviembre 2006

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

1. 182. The Committee last examined this case at its May-June 2006 session [see 342nd Report, paras. 146-157]. On that occasion: (1) with regard to the appeal made by the Toyota Motor Philippines Corporation (TMPC) against the certification election of Toyota Motor Philippines Corporation Workers’ Association (TMPCWA) in 2000 on the ground that it should have been opened to the members of the rank-and-file bargaining unit – a question which appeared to continue to be at issue in respect of the latest certification election of 16 February 2006 – the Committee expressed the firm expectation that the Court of Appeals would be in a position to render its decision without delay so that the conditions for the certification elections of the TMPC could be firmly and clearly established; (2) with regard to the latest allegations by the complainant, the TMPCWA, concerning the new certification election of February 2006 (i.e. that the Government conspired with the TMPC to continue the certification election and that the Department of Labor showed favouritism towards the Toyota Motor Philippines Corporation Labor Organization (TMPCLO) – which was established under the dominance of the employer – 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 Committee requested the Government to transmit its observations in this respect as well as any decisions rendered in respect of the legal action taken by the complainant with regard to the election of February 2006 and the decision of the National Labor Relations Commission of 9 August 2005 dismissing the unfair labour practice case filed by the TMPCWA; (3) with regard to its previous request for the reinstatement of the 122 workers dismissed from the TMPC (who had not accepted the compensation package) or, if reinstatement was not possible, the payment to them of adequate compensation, the Committee requested the Government to provide information on the measures taken to initiate discussions on this issue; (4) with regard to the criminal charges laid against 18 trade union members and officers the Committee requested the Government to transmit a copy of the court judgements as soon as they are rendered; it also requested the Government to institute an independent inquiry into the allegations of harassment by the police in respect of these 18 unionists and to keep the Committee informed of the outcome.
2. 183. In a communication dated 29 August 2006, the complainant organization provides additional information in support of its complaint.
3. 184. In a communication dated 25 May 2006, the Government provides further information with regard to point (ii) above, in particular, the allegations of the complainant that the Department of Labor and Employment – National Capital Region (DOLE-NCR) failed to issue a resolution on the results of the certification election and that it showed partiality in granting the motion for the opening of the challenged votes filed by the TMPCLO and by ordering the parties to submit their respective position papers relative to the opening and counting of the segregated votes. According to the Government, a review of the records revealed that, on 16 February 2006, a certification election was conducted among the rank-and-file employees at the TMPC which yielded the following results: TMPCLO: 424; TMPCWA: 237; no union: 8; spoiled ballots: 15; segregated votes: 210; valid votes cast: 669; eligible voters: 994. On 20 February 2006, the TMPCWA filed a protest, seeking the nullification of the certification election. The TMPCLO, on the other hand, opposed the TMPCWA’s protest and moved for the opening and counting of the 121 segregated votes of the alleged supervisory employees but insisted that the 89 votes of the dismissed employees should remain segregated. On 2 March 2006, the DOLE-NCR mediator-arbiter directed the parties to submit their respective position papers on the propriety of the opening and counting of the segregated votes. On 8 March 2006, both parties submitted their position papers; on 5 April 2006, they appeared on the hearing concerning the issue of the propriety of the opening of the segregated votes. On 7 April 2006, the mediator-arbiter issued an order denying TMPCWA’s protest for lack of merit. The mediator-arbiter ruled that the votes of the 121 employees should remain segregated, as the issue of whether levels 5 and 8 employees were supervisors was pending resolution by the Court of Appeals. As to the 89 employees who were questioning their dismissal from employment before the Supreme Court, the mediator-arbiter ruled in favour of their eligibility to vote being qualified voters pursuant to section 5, Rule IX, of Department Order No. 40, series of 2003. However, since the 89 votes were insufficient to overturn the results of the certification election, the TMPCLO was certified as the sole and exclusive bargaining agent of all the rank-and-file employees in the establishment. Consequently, the TMPCWA filed an appeal from the mediator-arbiter’s order, which is now pending before the Bureau of Labor Relations.
4. 185. The Government added that it vehemently objected to the allegations of deliberate delays and/or refusal of the DOLE-NCR to resolve the TMPCWA protest, as bereft of any legal basis. The TMPCWA’s accusations against this Department, in the letter dated 27 March 2006, were prematurely raised before the ILO since the said letter predated the actual hearing on the protest filed by the TMPCWA which was scheduled on 5 April 2006. The TMPCWA was fully aware that the issue of whether the segregated votes should be opened and counted was not yet ripe for resolution in view of the fact that the scheduled hearing on the issue was yet to be conducted. Nevertheless, a resolution was issued as early as 7 April 2006. Similarly, the allegation that the DOLE displayed partiality in favour of the TMPCLO, for the reason that the mediator-arbiter granted the TMPCLO’s motion for the opening of the challenged votes, likewise, lacks merit. For the same reason and as borne out by the records, the TMPCWA’s allegation of partiality was prematurely raised before the ILO, accusing the DOLE of partiality even before the mediator-arbiter rendered a decision on 7 April 2006. In fact, in the said decision, the mediator-arbiter denied the TMPCLO’s request for the opening of the segregated votes. Moreover, the decision to allow the parties to submit their position papers did not in any way amount to an act of partiality, as it was necessary to afford the parties their right to due process.
5. 186. The Committee takes note of the information provided by the Government according to which: (i) the election carried out on 16 February 2006 yielded the following results: TMPCLO: 424; TMPCWA: 237; no union: 8; spoiled ballots: 15; segregated votes: 210; valid votes cast: 669; eligible voters: 994; (ii) on 20 February 2006, the TMPCWA filed a protest seeking the nullification of the certification election; (iii) the TMPCLO opposed the TMPCWA’s protest and moved for the opening and counting of the 121 segregated votes of the alleged supervisory employees but insisted that the 89 votes of the dismissed employees should remain segregated; (iv) on 2 March 2006, the DOLE-NCR mediator-arbiter directed the parties to submit their respective position papers on the propriety of the opening and counting of the segregated votes, the parties did so on 8 March 2006 and appeared on the related hearing on 5 April 2006; (v) on 7 April 2006, the mediator-arbiter issued an order denying the TMPCWA’s protest for lack of merit. The mediator-arbiter ruled that the votes of the 121 employees should remain segregated, as the issue of whether levels 5 and 8 employees were supervisors was pending resolution by the Court of Appeals. As to the 89 employees who were questioning their dismissal from employment before the Supreme Court, the mediator-arbiter ruled in favour of their eligibility to vote being qualified voters pursuant to section 5, Rule IX, of Department Order No. 40, series of 2003. However, since the 89 votes were insufficient to overturn the results of the certification election, the TMPCLO was certified as the sole and exclusive bargaining agent of all the rank-and-file employees in the establishment. Consequently, the TMPCWA filed an appeal from the mediator-arbiter’s order, which is now pending before the Bureau of Labor Relations.
6. 187. While the Committee takes due note of this information, it also notes that the Government does not address the issue of whether the TMPCLO obtained the absolute majority of votes which is required for certification – an issue which is contested by the TMPCWA. The Committee requests the Government to provide clarifications on this point and to keep it informed of the outcome of the appeal filed by the TMPCWA against the mediator-arbiter’s order certifying the TMPCLO as the sole and exclusive bargaining agent of all the rank-and-file employees in the TMPC pursuant to the certification election of 16 February 2006.
7. 188. The Committee also notes the Government’s rejection of the allegations of deliberate delays, partiality and/or refusal of the DOLE to resolve the TMPCWA protest. The Government emphasizes that these allegations were made in a letter of 27 March 2006, which predated the actual hearing of 5 April 2006 on the protest filed by the TMPCWA. The Government emphasizes, moreover, that an order on this subject was issued as early as 7 April 2006 and that, in the order, the mediator-arbiter denied the TMPCLO’s request for the opening of the segregated votes (contrary to the allegations). Moreover, the decision to allow the parties to submit their position papers did not in any way amount to an act of partiality, as it was necessary to afford the parties their right to due process.
8. 189. While taking due note of this information, the Committee regrets that the order for a new certification ballot was granted before the issues arising from the previous certification ballot could be resolved before the courts. Noting that this certification ballot took place in the particularly difficult context of the repeated refusal by the TMPC to recognize and negotiate with the TMPCWA, the Committee requests the Government once again to communicate the decision of the National Labor Relations Commission of 9 August 2005 dismissing the unfair labour practice case filed by the TMPCWA alleging company domination of the TMPCLO. Moreover, noting that the Government does not provide new information on the progress of proceedings in the appeal that the TMPC filed against the certification election of the TMPCWA in 2000 on the ground that it should have been opened to the members of the rank-and-file bargaining unit – a question which appears to continue to be at issue in respect of the latest certification election of 16 February 2006 – the Committee requests the Government to indicate the conditions established for the recent elections on the basis of which the TMPCLO was certified as bargaining agent and to specify whether the employer has changed its position on the question as to the workers that constitute the bargaining unit, as well as any impact that such a change may have on the case pending before the Court of Appeals. The Committee also requests once again the Government to communicate the text of the decision of the Court of Appeals as soon as it is handed down.
9. 190. Noting that the Government does not provide information on the other pending points, the Committee once again requests the Government to initiate discussions on the reinstatement of the 122 workers dismissed from the TMPC (who had not accepted the compensation package), or if reinstatement is not possible, the payment to them of adequate compensation and keep the Committee informed in this respect. It also once again requests the Government to transmit a copy of the court judgements concerning the criminal charges laid against 18 trade union members and officers, as soon as they are rendered, and to institute an independent inquiry into the allegations of harassment by the police in respect of these 18 unionists and keep the Committee informed of the outcome. The Committee also requests the Government to reply to the recent allegations made by the TMPCWA in its communication of 29 August 2006.