Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 350, Junio 2008

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

1. 160. The Committee last examined this case, at its May–June 2007 session [see 346th Report, paras 150–176]. 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. Some 122 workers have not accepted the compensation package. In February 2006, the DOLE authorized a new certification election, which took place on 16 February 2006, and 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. Several legal appeals are pending before the courts filed by both parties (TMPC and TMPCWA).
2. 161. During the last examination of this case, the Committee made the following recommendations: (1) with regard to allegations by the complainant concerning the new certification election of 16 February 2006, the Committee once again expressed 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. The Committee expressed the hope that the Court of Appeals would issue its decision on the issue of certification without further delay and requested the Government to keep it informed in this respect. (2) 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 requested 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. (3) With regard to the criminal charges laid against the 18 trade union members and officers for grave coercion against workers who were not involved in the strike of
3. 28–31 March 2001, the Committee once again requested the Government to transmit a copy of the court judgement as soon as it is rendered. (4) With regard to the incident of 16 August 2006 (trade union members who forced their way into the DOLE building were allegedly violently dispersed by the police, injured and imprisoned), the Committee observed that the versions of the facts communicated by the complainant and the Government diverged. The Committee requested 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. (5) The Committee finally noted with interest House Bill No. 1351 on certification elections. It requested the Government to transmit the text of the Bill and to keep it informed of developments regarding its adoption by the Senate.
4. 162. The complainant organization provided additional information in support of its complaint in communications dated 28 August, 27 November and 17 December 2007.
5. 163. In its communication dated 28 August 2007, the complainant provides an update on the facts of this case. According to the complainant, the TMPCWA continues to represent its members inside the plant, for instance, through meetings with company representatives concerning individual grievances. It has also attended various hearings at the NCMB in order to demand that the hiring of contract workers be stopped because it would prejudice the reinstatement of the 233 illegally dismissed workers (issue pending before the Supreme Court). The complainant also comments on the Government’s reply reported during the last examination of this case by the Committee.
6. 164. Furthermore, the complainant requests the Committee to review its recommendation regarding the payment of adequate compensation to the dismissed workers, in case reinstatement is not possible. In particular, in paragraph 173 of its previous report, the Committee indicated the following: “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.” The complainant states that the TMPC has been distorting this recommendation to do away with its responsibilities in reinstating its illegally dismissed workers. For the complainant, compensation is a secondary issue, the primary question remaining the ability of the workers to keep their jobs and improve their lives by organizing their union and bargaining with management. The workers in the TMPC have been struggling to organize their union for more than a decade, made sacrifices and accepted difficulties in the belief that justice would prevail. The complainant considers that the right to organize is inalienable and should not be “bought out”. It emphasizes that its request for reinstatement is within the bounds of the law and concerns a right condoned by the laws of the land.
7. 165. The complainant indicates that there is a trend currently in the Philippines whereby workers, particularly their leaders, are being attacked and terrorized (the complainant provides several examples). According to the complainant, since 2 August 2007, after a picket protest during the anniversary of Toyota, a certain number of unidentified men in plain clothes have been rounding in the Barangay community and the whole area where the Toyota plant in Sta Rosa, Laguna is located, asking for information regarding the whereabouts of the officers of the TMPCWA and its office. Alarmed, the officers decided to continue their struggle by hiding at night in different houses. It requests immediate action by the Committee which in its view will have a positive effect to encourage the members to continue their struggle and discourage attempts on the lives of the officers of the TMPCWA.
8. 166. In a communication dated 27 November 2007, the complainant forwards the decision of the Supreme Court rendered on 19 October 2007, with regard to the question of the dismissal of 227 workers (121 of which had decided not to settle their case with the TMPC). According to the decision, the dismissals of 227 trade union officers and members were lawful because of their participation in an illegal strike and for having committed other “illegal acts” during that strike, like coercion, committed in particular by obstructing free ingress to or egress from the company premises, badmouthing people, shouting invectives, and pounding the vehicles of Toyota officials. The Supreme Court also included among the illegal acts, the fact that the dismissed workers (who were on “payroll reinstatement” ordered by the courts) staged rallies or pickets in front of the Bicutan and Sta. Rosa plants, in “patent” violation of the 10 April 2001 assumption of jurisdiction order issued by the DOLE Secretary, which proscribed the commission of acts that might lead to the “worsening of an already deteriorated situation”. Moreover, the court ordered that separation pay should not be provided to the workers, because these illegal acts constituted serious misconduct. The complainant filed a motion for reconsideration by the Supreme Court en banc (attached to the communication), citing several grounds on which the impugned Supreme Court decision departs from established case law on these issues.
9. 167. In a communication dated 17 December 2007, the complainant provides additional information to the effect that: (i) the TMPC refuses to attend conciliation hearings at the National Conciliation and Mediation Board (NCMB) on a notice of strike filed by the complainant, TMPCWA, in the context of the representation of its members’ rights who still work in the company; (ii) the case of grave coercion pending against 18 union members and leaders would be heard on 24 March 2007 after its last hearing on 25 July 2007; it adds that the TMPC inexplicably still pursues this case which is now pending for five years, despite its lack of significance to the TMPC, in order to use this case as leverage for future disputes; (iii) on the case pending with regard to the certification dispute, the Court of Appeals, Fourth Division, instructed all the parties to submit a memorandum despite the fact that the relevant case has been pending for almost seven years; the complainant suspects that the Court of Appeals issued this resolution pursuant to the last recommendations of the Committee on this issue; it adds that in its view, the Government and the TMPC wish to ensure that the Supreme Court decision is released first on the termination dispute, to ensure that the issue of the refusal to recognize the TMPCWA will become moot; (iv) the Supreme Court decision on the issue of the termination dispute (see above) was apparently leaked to the TMPC and the TMPCLO before it was brought to the knowledge of the Clerk of the Supreme Court and the judges who issued the decision were politically appointed.
10. 168. In a communication dated 31 August 2007, the Government indicates that it will transmit a copy of the court decisions concerning the certification of the TMPCWA and the TMPCLO, pending with the Court of Appeals, the termination disputes involving the TMPCWA, officers and members pending with the Supreme Court, and the criminal cases against TMPCWA officers and members, pending before a regional trial court, as soon as they are rendered by the judicial bodies. The Government also comments on certain aspects of the complainant’s reply during the last examination of this case. Finally, the Government indicates that House Bill No. 1351 was, on 19 February 2007, passed into law by Congress as Republic Act No. 9481 entitled “An Act Strengthening the Workers’ Constitutional Right to Self-Organization, Amending for the Purpose Presidential Decree No. 442, as Amended, Otherwise Known as the Labor Code of the Philippines”. The Government attaches a copy of the law. In its communication dated 27 September 2007, the Government adds that: (1) ongoing proceedings before the NCMB are not related to the issue of the TMPCWA’s majority representation status, which is pending before the courts; (2) the criminal case filed with regard to the 16 August 2006 incident was dismissed after the DOLE leadership thought it best not to engage the union members in criminal litigation; however, this cannot be read as an indication of how the DOLE will react in the future; (3) a discussion of alleged attacks against trade unionists may be properly addressed in Case No. 2528.
11. 169. In a communication dated 12 February 2008, the Government indicates that: (i) the reasons for which the TMPC does not attend conciliation hearings before the NCMB, which is fulfilling its duty to carry out the settlement of disputes, are not known to the Government; (ii) the Government cannot comment on the alleged interest or stake of the TMPC over the grave coercion charges while the accusers/complainants in this case are individual employees of the TMPC and not the TMPC itself; (iii) the fact that the decision of the Supreme Court in the termination dispute came first prior to a decision on the certification or recognition case is not irregular and this development should at the very least be expected as the consolidation of interrelated appeals in the certification case and the death of the member of the Division of the Court of Appeals in charge of the case have in no small measures contributed to the delay in its resolution; even in the face of a ruling on the termination dispute, the certification case continues to be pending with the Court of Appeals and the issues up for resolution are different and unrelated to those resolved by the Supreme Court in the termination dispute; (iv) an objective reading of the decision of the Supreme Court on the termination dispute will clearly and readily show that the conclusions (legal and factual) were reached on the basis of the evidence presented by the parties and only a malicious mind will impute bad faith or ill motive to the highest court of his jurisdiction which rendered a decision based on the applicable municipal law and anchored on evidence presented after full-blown proceedings that afforded all the parties with the opportunity to be heard; when trial or adversarial proceedings become necessary, the parties must still present evidence and sound arguments before the court, tribunal or administrative body; sadly, the TMPCWA lost the termination battle in the Supreme Court and has once lost an unfair labour practice charge (for alleged company domination of the TMPCLO) against the TMPC; its second unfair labour practice charge for alleged refusal to bargain on behalf of the TMPC is presently pending with the NLRC; again, the TMPCWA is required to present evidence and sound arguments if it wants to succeed on the second unfair labour practice charge; the filing of at least two unfair labour practice charges against the TMPC is proof enough that there are mechanisms to address alleged repression and infringement of workers’ right to freedom of association.
12. 170. The Committee notes the detailed information provided by the complainant and the Government’s reply on a number of points. The Committee notes that the Supreme Court decision found the dismissal of 227 TMPCWA members and officers justified in that it was the outcome of an illegal strike and other illegal acts committed during the strike, like coercion, committed in particular by obstructing free ingress to or egress from the company premises, badmouthing people, shouting invectives, and pounding the vehicles of Toyota officials; the Supreme Court also included among the illegal acts, the fact that the dismissed workers (who were on “payroll reinstatement” ordered by the courts) staged rallies or pickets in front of the Bicutan and Sta. Rosa plants, in “patent” violation of the 10 April 2001 assumption of jurisdiction order issued by the DOLE Secretary, which proscribed the commission of acts that might lead to the “worsening of an already deteriorated situation”. Because of these illegal acts, constituting serious misconduct, the Court found that no separation pay should be awarded.
13. 171. The Committee recalls that during the first examination of this case, both the complainant and the Government indicated that the strike in question was peaceful and the Government even referred at one point in its reply to the “dismissal of participants in the peaceful demonstration” [332nd Report, para. 884]. The Committee has found in the past, with regard to the reasons for dismissal, that the activities of trade union officials should be considered in the context of particular situations which may be especially strained and difficult in cases of labour disputes and strike action [Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 811]. The Committee further recalls that sanctions, such as massive dismissals in respect of strike actions, should remain proportionate to the offence or fault committed [see 329th Report, para. 738 and 332nd Report, para. 886]. The Committee recalls with regard to the TMPCWA officers in particular, that they were declared to have forfeited their employment status by the NLRC because they decided to organize the strike of 23 and 29 May 2001 contrary to the Secretary of DOLE’s assumption of jurisdiction order of 10 April 2001. However, as noted by the Committee during the first examination of this case, “such an order is not compatible with the principles of freedom of association and therefore, the union officers concerned cannot be sanctioned for having ignored it” [332nd Report, para. 886]. The Committee recalls that it has always considered that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association [see 332nd Report, para. 886]. The Committee emphasizes that the same holds with regard to trade union members. The Committee regrets that the Supreme Court appears to consider that the staging of peaceful pickets should be sanctioned as a violation of an assumption of jurisdiction order, itself contrary to freedom of association principles, and as liable to lead to a “worsening of an already deteriorated situation”. The Committee emphasizes that the prohibition of strike pickets is justified only if the strike ceases to be peaceful [Digest, op. cit., para. 649].
14. 172. With regard to the complainant’s arguments against the Committee’s recommendation for payment of adequate compensation in case reinstatement is not possible, the Committee recalls that on previous occasions it has found that it would not appear that sufficient protection against acts of anti-union discrimination, as set out in Convention No. 98, is granted by legislation in cases where employers can in practice, on condition that they pay the compensation prescribed by law for cases of unjustified dismissal, dismiss any worker, if the true reason is the worker’s trade union membership or activities [Digest, op. cit., para. 791]. The reason for this is that in cases such as this one, newly established enterprise level unions are likely to suffer adverse consequences threatening their very existence, if their entire leadership and a large part of their membership is dismissed. At the same time, the Committee has found that if reinstatement is not possible, the Government should ensure that the workers concerned are paid adequate compensation which would represent a sufficient dissuasive sanction for anti-trade union dismissals. Thus, if, given the considerable time that has elapsed since the dismissal, in violation of the principles of freedom of association, it is not possible for objective and compelling reasons to reinstate the workers concerned, the Committee has requested the Government to take steps to ensure that the workers receive full compensation without delay. The compensation should be adequate, taking into account both the damage incurred and the need to prevent the repetition of such situations in the future [Digest, op. cit., paras 845, 841, 844].
15. 173. As a result of the above, and bearing in mind the serious consequences of the dismissals for the workers concerned, the Committee once again requests the Government to initiate discussions in order to consider the possible reinstatement of the 122 workers who did not previously accept the compensation package offered by the company, in their previous employment or, 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 motion for reconsideration by the Supreme Court en banc, as soon as it is rendered.
16. 174. On the criminal charges laid against 18 trade union members and officers for grave coercion against workers who were not involved in the strike of 18–31 March 2001, the Committee notes that, according to the complainant, a new hearing had been scheduled for 24 March 2008. The Committee requests the Government to transmit a copy of the court judgement as soon as it is rendered.
17. 175. The Committee notes with interest that House Bill No. 1351 was recently passed into law by Congress as Republic Act No. 9481 entitled “An Act Strengthening the Workers’ Constitutional Right to Self-Organization, Amending for the Purpose Presidential Decree No. 442, as Amended, Otherwise Known as the Labor Code of the Philippines”. The Committee notes that the law in question contains several improvements in relation to the previous legislative provisions. In particular, section 12 of the Act amends section 258 of the Labor Code to read as follows:
    • Employer as Bystander.– In all cases, whether the petition for certification election is filed by an employer or a legitimate labor organization, the employer shall not be considered a party thereto with a concomitant right to oppose a petition for certification election. The employer’s participation in such proceedings shall be limited to: (1) being notified or informed of petitions of such nature; (2) submitting the list of employees during the pre-election conference should the Med-Arbiter act favourable on the petition.
18. 176. The Committee observes that if this provision were in force at the time when the TMPCWA requested certification as majority union, the dispute which is the object of the present case might have been avoided since the TMPC would not have had the right under the law to oppose the union’s petition for certification before the courts (on grounds relative to the segregation of the votes of supervisory employees). Noting that the issue of certification of the TMPCWA/TMPCLO, which is the central issue in this case, is still pending before the Court of Appeals, the Committee hopes that the Court of Appeals, in rendering its decision, will bear in mind the spirit of this new provision of the Labor Code combined with the fact that, as noted in the Committee’s previous examination of this case, 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 seemed to have changed position on this issue, which constituted the basis for its pending appeal against the TMPCWA and lies at the heart of the dispute with that union. Noting that according to the complainant, the Fourth Division of the Court of Appeals instructed the parties to submit a memorandum on the certification dispute which has been pending for seven years now, the Committee expresses the hope that the Court of Appeals will issue its decision on this issue of certification without further delay and requests the Government to communicate the court judgement as soon as it is rendered.
19. 177. The Committee notes with grave concern the allegations of the complainant with regard to unidentified individuals asking for information regarding the whereabouts of the officers of the TMPCWA and its office in the Barangay community and the whole area where the Toyota plant in Sta Rosa, Laguna is located, since 2 August 2007. Given the context which is the object of another case before the Committee [Case No. 2528], the Committee requests the Government to take all necessary measures to guarantee the security of the TMPCWA officials and to keep it informed in this respect.
20. 178. With regard to the incident of 16 August 2006, the Committee notes from the Government’s communication that the criminal case filed on this issue was dismissed after the DOLE leadership thought it best not to engage the union members in criminal litigation. The Committee observes that the complainant attaches in its latest communication (dated 17 December 2007), a copy of the resolution of 22 February 2006 by the Manila prosecutor, dismissing the charges filed by the DOLE for lack of merit. The Committee takes note of this information.
21. 179. Given that many of the allegations raised by the complainant organization refer to alleged acts of the enterprise, the Committee requests the Government to solicit information from the employers’ organization concerned so that it may have at its disposal their views as well as those of the enterprise concerned on the matters at issue.