Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 346, Junio 2007

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

1. 150. The Committee last examined this case, at its November 2006 session [see 343rd Report, paras 182–190]. The Committee recalls that the case concerns the continued refusal by Toyota Motor Philippines Corporation (TMPC) to recognize and negotiate with the complainant Toyota Motor Philippines Corporation Workers’ Association (TMPCWA) despite the union’s certification by the Department of Labor (DOLE) as sole and exclusive bargaining agent; the TMPC moreover dismissed 227 workers and filed criminal charges against other officers and members for having staged strikes in protest at this refusal. The National Labor Relations Commission (NLRC) later on found these dismissals valid but nevertheless required the TMPC to grant separation pay of one month’s pay for every year of service. One hundred and twenty two workers have not accepted the compensation package. Several legal appeals are pending before the courts filed by both parties.
2. 151. During the last examination of this case, the Committee made the following recommendations: (1) with regard to the recent allegations by the complainant concerning the new certification election of 16 February 2006 which led to the certification of the Toyota Motor Philippines Corporation Labor Organization (TMPCLO) – which was allegedly established under the dominance of the employer – as sole and exclusive bargaining agent of all the rank and file employees, the Committee requested the Government to provide further clarifications on whether the TMPCLO obtained the absolute majority of votes required for certification and to keep it informed of the appeal filed by the TMPCWA against the mediator-arbiters’ order certifying the TMPCLO; the Committee also noted that the recent certification ballot took place in the particularly difficult context of the repeated refusal by the TMPC to recognize and negotiate with the TMPCWA, and once again requested the Government to communicate the decision of the NLRC of 9 August 2005 dismissing the unfair labour practice case filed by the TMPCWA alleging company domination of the TMPCLO, (2) with regard to the appeal made by TMPC against the certification election in 2000 on the ground that it should have been opened to the employees at levels 5–8 – a question which appears to continue to be at in issue in respect of the latest certification election of 16 February 2006 – the Committee once again requested the Government to communicate the text of the decision of the Court of Appeals as soon as it is handed down; it also requested the Government to indicate the condition 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; (3) with regard to its previous request for the reinstatement of 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 measure taken to initiate discussions on this issue; and (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.
3. 152. The complainant organization provided additional information in support of its complaint in communications dated 29 August, September and 20 December 2006 and 20 March 2007.
4. 153. In its communication dated 29 August 2006, the complainant alleged that, on 7 August 2006, it discovered that the management of TMPC and the company dominated union, TMPCLO, agreed to start collective bargaining negotiations in a secret meeting. Previously, the complainant had filed a motion for reconsideration of the certification of the TMPCLO and therefore, after finding out about the commencement of negotiations, wished to file a letter of request with the Secretary of the DOLE to get a certification concerning whether any order had been issued on the earlier motion. However, the DOLE guards and policemen prevented the union representatives from entering the DOLE building and filing the letter of request. To their disappointment, they found out that the secretary of the DOLE had issued an unofficial decision denying the Motion for Reconsideration by a mere letter addressed to the TMPCWA President, dated 31 July 2006, and not through an Official Order – a recurring practice at the DOLE. Moreover, the Office of the Secretary of the DOLE hurriedly issued an Entry of Judgement dated 4 August 2006, according to which the decision of the Med-Arbiter of 7 April 2006 was declared final and executory; this decision denied the Protest filed by the complainant seeking the nullification of the Certification Election and certified the TMPCLO as sole and exclusive bargaining agent.
5. 154. Furthermore, according to the allegations, on 16 August 2006 the complainant went to the Office of the Secretary of the DOLE to file a letter asking the Secretary to make a decision on the Motion for Reconsideration as the union needed to know the right venue to file a petition for Certiorari to the Court of Appeals. However, in filing this letter to the Secretary, the guards prevented the union members and fired their firearms five times. This resulted in the workers panicking and running to the seventh floor, after which many police came and violently dispersed them. Five members were seriously injured and 21 were brought to jail and were charged with fabricated criminal charges, namely: slight physical injuries, assault and inciting sedition. These members were unjustly detained for three days.
6. 155. The complainant also makes several arguments against the certification of the TMPCLO: (i) according to a national law, a petition for certification election should be rejected if there is a bargaining deadlock which had become subject to a valid notice of strike or lockout, as in the case at hand (section 14, Rule VIII of Department Order No. 10-03); if a union has been certified as the sole and exclusive bargaining agent and is in dispute with the management caused by the management’s refusal of collective bargaining, the Labor Code should be interpreted and implemented so as to prevent the DOLE from granting petition by anyone else for a new certification election; (ii) although the TMPC brought a civil suit contesting the certification of the TMPCWA on the ground that certain challenged votes of supervisory employees should not have been treated as invalid, it did not raise objection to the certification of the TMPCLO, although the votes of supervisory employees were once again treated as invalid; if the TMPC negotiates with the TMPCLO it therefore implicitly accepts that the true intention behind its previous appeal was the unjust and unfair refusal of collective bargaining with the TMPCWA which was nothing more than union busting; (iii) the complainant’s filing of an unfair labour practice appeal against the TMPCLO should have served as a bar to the holding of collective bargaining negotiations; (iv) the DOLE should not have declared the TMPCLO as the winner of the certification elections before the courts decide on the matter of voting rights of supervisory employees which was at the heart of the previous certification election; by declaring these votes as “segregated” votes, the DOLE treated them as de facto invalid votes whereas none of the parties had made such a request; had they been treated as valid but challenged votes, the TMPCLO would have not obtained the absolute majority of valid votes cast; (v) the argument of the Government that the Dole has no lawful means to compel the employer to bargain collectively unless the union files an unfair labour practice case is astonishing given that the Government in this case should not be limited to the administrative branch and should comprise the legislative and judiciary branches; the Government is limited to justifying the DOLE’s acts or omissions instead of explaining why the TMPCWA has been left refused by the employer for over five years; (vi) with regard to the case currently pending before the Court of Appeals, the Supreme Court had already ruled in the framework of interim measures in favour of the complainant, and so the Court of Appeals should take account of this ruling in rendering its decision on the substance of the case.
7. 156. With regard to the criminal prosecution of the 18 TMPCWA members, the complainant indicates that the scheduled hearing of 14 June 2006 was postponed until 17 November 2006. The criminalization of labour has been used by the Government and the employers to oppress and prevent collective actions. Some of the 25 workers who were originally prosecuted accepted the payment offered by the company; in their case, the prosecutor did not pursue the warrant of arrest to put pressure on them and the court did not include them in the hearing arraignment. Although they never appear in the court hearings, the prosecutors do not recommend the issuing of a warrant or their arrest for violating the law by being absent.
8. 157. In its communication of September 2006, the complainant adds that it filed a complaint before DOLE’s NLRC for unfair labour practices on 10 August 2006. The complaint was duly received and the first mandatory conferences were to be held on 12 and 19 September 2006. The complainant adds that since it has now filed a complaint for unfair labour practices, the Government is no longer justified in asserting that it is unable to compel the TMPC to bargain with the TMPCWA.
9. 158. In its letter, dated 20 December 2006, the complainant further alleges that, on 15 November 2006, the House of Representatives Committee on Labor and Employment called another meeting for the continuation of deliberations on House Resolution No. 173, entitled “Resolution Directing the House Committee on Labor and Employment to Conduct an Investigation, in Aid of Legislation, into Toyota Motor Philippines Corporation’s (TMPC) Unfair Labor Practices, Refusal to Recognize the Union of Toyota Workers and Workers’ Rights to Collectively Bargain and Strike; and Abide by the Rulings of the Supreme Court Supportive of the Workers and Recommend Measures to Protest the Rights and Welfare of the Workers”. To the disappointment of the Committee, the TMPC management did not attend the hearing; this is the third meeting invitation that has been ignored by the TMPC.
10. 159. Furthermore, with regard to the collective bargaining negotiations with the TMPCLO, the complainant alleges that the company helped the TMPCLO to have the collective agreement ratified by stopping its production sometime in November 2006 and allowing the union to use the company facilities in order to gather the rank and file workers, and have them sign the ratification of the agreement with threats that those who did not sign could not acquire a bonus.
11. 160. With regard to the criminal case, the TMPCWA states that the company uses it as leverage to pacify the actions of illegally dismissed members and to keep on harassing the workers and their families to give up.
12. 161. In a communications dated 20 March 2007, the complainant indicates that on 6 December 2006, the TMPC and the company dominated union, TMPCLO, signed a collective bargaining agreement for the years 2007–11 and the agreement was approved and registered by the DOLE on 16 January 2007.
13. 162. The Government replied in communication dated 6 November 2006 and 15 January 2007. In its communication dated 6 November 2006, the Government indicates that there are now three related cases pending with the Court of Appeals. The first is the TMPC’s appeal against the Order of the DOLE certifying the TMPCWA as the sole and exclusive bargaining representative of the TMPC’s rank and file employees. The second and third cases, on the other hand, relate to appeals filed by the TMPCWA on the latest certification election (the Order authorizing the latest certification election and the Order certifying the TMPCLO as the sole and exclusive bargaining representative). The Court of Appeals has yet to decide these cases which have been consolidated and will be examined together. With regard to the delay in the proceedings, the Government indicates that this is beyond its power to control and that the TMPCWA is not entirely blameless for the delay as it chose to file several incidental motions and petitions with the Court of Appeals and the Supreme Court. While recognizing the TMPCWA’s right to avail itself of judicial remedies and incidental motions, the Government considers that the TMPCWA could have exercised restraint in this respect. Finally, the merits of the TMCP’s appeal is a live issue before the Court of Appeal as the Supreme Court’s dissolution of the injunctive relief previously issued by the Court of Appeals (preventing the commencement of collective bargaining) did not definitely settle the issue of the TMPCWA’s majority status. Specifically, the Supreme Court ruled on whether the injunctive relief granted by the lower court complied with the following requisites: (a) that the invasion of the right sought to be protected is material and substantial; (b) the right of the complainant is clear and unmistakable; (c) there is an urgent and paramount necessity to prevent serious damage. There is, thus, no final determination on the merits of the main substantive issue, i.e., the TMCP’s appeal against certification of the TMPCWA as bargaining agent. The Government believes that the Court of Appeals is not precluded from resolving the merits of the case based on issues, arguments and points not examined by the Supreme Court. The ruling of the Court of Appeals on these undecided issues may not therefore necessarily conflict with the Supreme Court’s decision.
14. 163. With regard to the proceedings initiated before the NLRC for unfair labour practices, the Government indicates that after the Labour Arbiter rejected the initially filed charges, the NLRC affirmed on appeal this decision. Furthermore, the Department of Labor never favoured the TMPLCO and always decides cases on the basis of the merits of the parties’ positions, claims, arguments and evidence vis-à-vis the applicable laws. Later on, the TMPCWA filed a second appeal for unfair labour practices. As to whether this deprives the Government of a valid excuse for not compelling the TMPC to bargain with the TMPCWA, the Government specifies that the mere filing of a case does not per se give it the coercive power to compel the employer to negotiate with the union. There must be a final determination that indeed the employer is guilty of unfair labour practices, i.e., that it refused to negotiate with the TMPCWA in lack of good faith.
15. 164. The Government adds that a pending bill (House Bill No. 1351) before the Philippine Congress essentially seeks to: (1) guarantee the expeditious nature of certification elections; and (2) promote free trade unionism and foster free and voluntary organization of a strong and united labour movement. In relation to the first objective, the bill seeks (1) to emphasize the employer’s role as an observer, thereby eliminating employer interference which is an incessant cause of delay; (2) to restrict the grounds for cancellation of union registration as sole and exclusive bargaining agent; and (3) to clarify that the filing of a petition for cancellation of registration against the union does not suspend a petition for certification elections (Explanatory Note of House Bill No. 1351). This bill was already approved by the House of Representatives (one of the two chambers of the legislature) and is now being considered by the Senate.
16. 165. With regard to the criminal case against the 18 TMPCWA members and officers, the Government indicates that the court had not yet decided the case. The accusations relate to grave coercion. Moreover, the allegations of harassment by police officers have not been officially brought to the attention of local authorities by the TMPCWA. There is an effective machinery to address the concerns raised if and when the matter is officially brought to the authorities.
17. 166. With regard to the incident of 16 August 2006, the Government indicates that the TMPCWA held a rally on that day in front of the DOLE building. Some union members attempted to rowdily enter the building and security guards attempted to keep them from entering the building. Some members pushed through to the inside of the building. Five gunshots echoed while the securities of the building tried to hold these people back – this being more than a fair warning. The TMPCWA members still forced their way into the DOLE building. Security guards were hurt, trying to prevent the rowdy entry. Some union members even succeeded in making their way up to the seventh floor to storm the Office of the Undersecretary of Labor and hurled unsavoury words against him. It took the intervention of the police to remove the union members. This was actually the second time that this group had committed these acts. On 26 July 2006, some TMPCWA members forced their way into the seventh floor where the Undersecretary was holding office, banged and kicked on his door and hurled invectives at him. As a result of the latest incident, the police charged the TMPCWA members with damage to property, assault and inciting to sedition, which police in any country would do when demonstrators forcibly enter a government workplace, cause damage to public property, and physically assault peace officers inside the building. The criminal proceedings spawned by this incident are still pending before the Prosecutors’ Office.
18. 167. In its communication dated 15 January 2007, the Government indicates with regard to the dispute over the termination of 227 TMPCWA officers and members that, originally, the dismissals were authorized as lawful (due to the staging of a strike without having held a strike ballot and, later on, illegally refusing to obey the return to work order issued by the Secretary of the DOLE) but payment of separation pay was additionally required (one month’s pay for every year of service). Pursuant to various appeals, the issue of the payment of separation pay is still pending before the Supreme Court. This notwithstanding, the TMPC offered and still offers adequate compensation to the dismissed employees. In fact, 105 out of the 227 TMPCWA members who were terminated already accepted the TMPC’s offered compensation. Thus, with regard to the Committee’s previous request for reinstatement of the 122 employees who did not accept the compensation package or adequate compensation, the DOLE can only go as far as attempting to conciliate the issue of adequate compensation considering that the Supreme Court shall conclusively decide the issues of reinstatement and separation pay. Much will depend on the acceptability of the TMCP’s offer but discussions will be futile if the remaining affected employees adamantly refuse the package.
19. 168. With regard to the DOLE’s decision to authorize the latest certification election, the Government adds to its previous comments that the petition of the TMPCLO was granted due to the supervening delay that effectively denied TMPC’s rank and file employees of their bargaining rights. Furthermore, five years had passed since TMPCWA’s certification and another union should be able to ask for a new election after the elapse of a reasonable time. Finally, the TMPCWA challenged the Department’s decision before the Court of Appeals, where the matter is currently pending. In the meantime, the certification election took place and led to the certification of the TMPCLO. The mediator-arbiter in that framework decided that the votes of 121 supervisory employees should remain segregated in accordance with the prior ruling of the Department on this matter in the 2000 certification election when the TMPCWA was certified. The TMPCWA filed appeals against the decisions affirming the certification of the TMPCLO and the issue is currently pending before the Court of Appeals (as noted above).
20. 169. With regard to the position of the TMPC on the segregation of the votes of the supervisory employees, an issue which lies at the heart of the dispute, the Government indicates that, although the employer did not pursue its position with the same vigour on the occasion of the latest election, it argued in its position paper filed with the Med-Arbiter, that the 121 employees whose ballots were segregated were rank and file employees. The Government states that the seeming change in the TMPC’s thinking on this issue does not seem to have any effect on the proceeding under way before the Court of Appeals, unless the TMPC decides to file a manifestation with the court signifying its lack of interest in the case and/or its intention to withdraw the petition/appeal.
21. 170. The Committee notes from the information provided by the complainant and the Government that a new collective agreement was signed between the TMPCLO and the TMPC on 6 December 2006 for the period 2007–11. Previously, the complainant in this case, TMPCWA, had lodged appeals against the decisions of the DOLE authorizing a new certification election at the TMPC and affirming the certification of the TMPCLO as sole and exclusive bargaining agent of the rank and file employees in the TMPC. These appeals have been consolidated with the initial appeal filed in 2001 by the TMPC against the Order of the DOLE certifying the TMPCWA as bargaining agent.
22. 171. The Committee must once again express its deep regret that an order for a new certification ballot was granted before the issues arising from the previous certification ballot could be resolved before the courts, especially as the certification ballot took place in the particularly difficult context of the repeated refusal by the TMPC to recognize and negotiate with the TMPCWA and the alleged practices of favouritism towards the TMPCLO.
23. 172. The Committee expects that the Court of Appeals will issue its decision on the issue of certification without further delay and requests the Government to keep it informed in this respect. The Committee expects, moreover, that in rendering its decision, the Court of Appeals will take into account that according to the information provided by the Government, during the latest certification election, the TMPC did not pursue the matter of the segregation of the votes of the supervisory employees with any insistence and therefore seems to have changed position on this issue, which constitutes the basis for its pending appeal against the TMPCWA and lies at the heart of the dispute with that union.
24. 173. With regard to its previous request for the reinstatement of the 122 dismissed workers who did not accept the compensation package, and if reinstatement is not possible, as determined by a competent judicial authority, the payment of adequate compensation, the Committee requests the Government to pursue its efforts in this respect and to keep it informed of the decision of the Supreme Court on the questions of reinstatement/compensation as soon as it is rendered.
25. 174. With regard to the criminal charges laid against the 18 trade union members and officers for grave coercion against workers were not involved in the strike of 28–31 March 2001, the Committee once again requests the Government to transmit a copy of the court judgement as soon as it is rendered.
26. 175. With regard to the incident of 16 August 2006, the Committee observes that the versions of the facts communicated by the complainant and the Government diverge. The Committee requests the Government to communicate any decisions issued in the framework of the criminal proceedings under way and to keep it informed of developments in the proceedings.
27. 176. The Committee finally notes with interest that according to the Government, House Bill No. 1351, which has been approved by the House of Representatives and is currently being considered by the Senate, seeks, among other things, to guarantee the expeditious nature of certification elections by: (1) eliminating employer interference, which is an incessant cause of delay in certification proceedings; (2) restricting the grounds for cancellation of union registration; and (3) clarifying that the filing of a petition for cancellation of registration does not suspend a petition for certification election. The Committee requests the Government to transmit the text of House Bill No. 1351 and to keep it informed of developments regarding its adoption by the Senate.