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. 180. The Committee last examined this case at its May–June 2007 meeting [346th Report, paras 1271–1360]. The case concerns the dismissal of all 15 officers of the University of San Agustin Employees’ Union – FFW (USAEU) in retaliation for the staging of a strike which was initially found legal by the Department of Labor and Employment (DOLE) and subsequently declared illegal by the courts. The complainant also alleges partiality on behalf of the judicial authorities including the Supreme Court, leading to decisions which are alarmingly dangerous for the rights of the workers to collectively bargain, strike and obtain protection against anti-union discrimination, thus encouraging other employers (Eon Philippines Industries Corporation and Capiz Emmanuel Hospital) to engage in further acts of anti-union discrimination.
2. 181. During the last examination of this case, the Committee made the following recommendations:
   • – The Committee requests the Government to review the dismissal of the entire committee of the USAEU (Theodore Neil Lasola, Merlyn Jara, Julius Mario, Flaviano Manalo, Rene Cabalum, Herminigildo Calzado, Luz Calzado, Ray Anthony Zuñiga, Rizalene Villanueva, Rudante Dolar, Rover John Tavarro, Rena Lete, Alfredo Goriona, Ramon Vacante and Maximo Montero) and to ensure a conciliation with the university regarding their reinstatement and to keep it informed of developments in this respect.
   • – The Committee requests the Government to inform it of the outcome of voluntary arbitration over the terms and conditions of employment of the workers of the San Agustin University for the period 2003–05. It also requests the Government to take all necessary measures so as to provide for consultations between the university and the USAEU without delay aimed at promoting negotiations between the parties with a view to determining the future terms and conditions of employment of the workers by means of a new collective agreement. The Committee requests to be kept informed in this respect.
   • – The Committee requests the Government to ensure that an independent inquiry is carried out immediately into the allegations of anti-union discrimination in the Eon Philippines Industries Corporation and the Capiz Emmanuel Hospital in Roxas city and if the acts of anti-union discrimination are confirmed, to ensure that the workers concerned are reinstated in their posts without loss of pay. The Committee requests to be kept informed in this respect.
3. 182. In a communication dated 27 December 2007, the complainant indicates that it filed an illegal dismissal complaint with the National Labor Relations Commission (NLRC) sub-arbitration branch in Iloilo city. The illegal dismissal claim is anchored on the illegal manner in which the University of San Agustin implemented the decision of the Court of Appeals which authorized the dismissal of the USAEU officers on the ground that they had staged an illegal strike. The illegality resides in the fact that the university went ahead and dismissed the officers in question despite the fact that motions for reconsideration, timely filed by both parties, were pending. The complainant indicates that this is contrary to Rule 52(4) of the Rules of Court which states that “the pendency of the motion for reconsideration timely filed by both parties shall stay the execution of the decision”. As noted during the last examination of this case, the Court of Appeals and the Supreme Court declined to address this issue because it concerned facts which arose after the initiation of the proceedings. In a decision dated 30 October 2007, the Labor Arbiter ruled that the termination of ten college or departmental trade union representatives was illegal because they did not qualify as trade union officers, and ordered their immediate reinstatement, in accordance with article 223 of the Labor Code. Thus, the Labor Arbiter declared the University of San Agustin guilty of unfair labour practices for terminating the college or departmental representatives. According to the complainant, the university refused to implement the order despite the fact that it is mandated to do so immediately under article 223 of the Labor Code, and filed an appeal (still pending) and a request for a temporary injunction. The NLRC issued a temporary restraining order preventing the reinstatement of the dismissed trade union representatives on the ground that the university would be irreparably damaged through the payment of monies/salaries to the representatives in case of reinstatement. The order was issued after holding a hearing on this issue in Cebu city, far from Iloilo city where the complainant is based, thus preventing the terminated officers and representatives from attending, due to the expenses related to travel and lodging, and despite the protests and pleadings filed by the trade union.
4. 183. The complainant adds that in the abovementioned decision of 30 October 2007, the Labor Arbiter rejected the illegal dismissal complaint with regard to the five remaining trade union officers for want of merit. He reasoned that, although the Court of Appeals and the Supreme Court did not decide the issue of the illegality of the dismissal, their rulings contained nevertheless a declaration of “loss of employment”. Despite this ruling, the issue of the manner in which this decision was implemented by the employer (i.e. while motions for reconsideration were pending, in violation of Rule 52(4) of the Rules of Court) was not addressed by any court, as the Court of Appeals and the Supreme Court declined to examine this issue which arose during the course of the proceedings.
5. 184. The complainant contends that section 217 of the Labor Code gives Labor Arbiters exclusive and original jurisdiction to rule over termination issues. It is, therefore, incumbent upon the Labor Arbiter to give a decision on this issue based on the facts presented to him, especially since the appellate courts were silent as to the illegal termination issue. In the complainant’s view, the Labor Arbiter should not have been stopped and overwhelmed by the silence of the appellate courts. Section 9 of the Civil Code states that “No judge or court shall decline to render judgement by reason of the silence, obscurity or insufficiency of the laws.” The complainant adds that the Labor Arbiter dismissed the complainant’s contention that the university failed to respect the constitutional right of due process in terminating the trade union officials by failing to serve two notices and hold a hearing as required by the Labor Code, contrary to existing case law.
6. 185. Finally, the complainant adds that the Government has not taken any steps to implement the other recommendations of the Committee. No independent inquiry has been carried out into anti-union discrimination in the Eon Philippines Industries Corporation and the Capiz Emmanuel Hospital in Capiz. The complaint of illegal dismissal of the terminated Chairperson of the Board of the Capiz Emmanuel Hospital Employees’ Union was rejected by the Labor Arbiter assigned to the case. Now, the case is in the hands of the NLRC in Cebu. Furthermore, the voluntary arbitration with the University of San Agustin over the terms and conditions of employment of the workers is still not acted upon.
7. 186. In communications dated 31 August 2007 and 11 February 2008, the Government indicates that the termination of the service of the union officers is an issue that the courts (the Supreme Court and the Court of Appeals) did not specifically discuss or resolve simply because it was a new matter or an issue that cropped up after judicial proceedings – on the core issues of the legality of the strike and bargaining deadlock – were already under way. The termination of service of the union officers took place at a time when the Court of Appeals had decided these core issues and was already deliberating on the union’s motion for reconsideration of the decision. Thus, how the declared illegality of the strike would apply to the union officers and members is a new and live issue that the courts have not ruled upon. The Philippine Rules of Court that govern court proceedings preclude determination of new issues at appellate levels; only issues or matters that were touched in the original proceedings can be the subject of appeals. To be sure, orderly appellate judicial proceedings dictate that the parties should not be allowed to litigate for the first time on appeal anything that transpired after court proceedings were already under way and which were not touched by the decision on appeal.
8. 187. As the new information furnished by the complainant shows, the union is now litigating the termination of service of its officers. The case is now before a Labor Arbiter of the NLRC – the office that has original jurisdiction to decide termination disputes. Given the standing Supreme Court ruling on the parties’ dispute, they can raise and litigate only on matters which were not litigated or decided on appeal that are not barred under the universally accepted principle of res adjudicata.
9. 188. On the issue of the legality of the strike, the Committee should note that under applicable Philippine law, a strike is illegal if undertaken despite the issuance and service of an assumption of jurisdiction order under article 263(g) of the Labor Code, which ipso facto carries the correlative duty of the striking workers to return to work. The root cause of the problem in this case is the utter disregard by the union officers and some union members of the legal consequences of the issuance of an assumption of jurisdiction order and their non-compliance with this order. These are matters that are supposed to be within the knowledge of every responsible trade unionist operating in this jurisdiction. The union officers and members went on with the strike despite actual knowledge of an assumption of jurisdiction order, on the reasoning that there is no effective service yet of the assumption of jurisdiction order on the only officer authorized by an internal union resolution to receive the order. It will be recalled that the assumption order was posted at the strike scene and was openly disregarded. To be sure, the enforcement of a law – particularly one involving the police power of the State – should depend on the law and the duly issued rules, not on a party’s internal rules.
10. 189. Additionally, the Committee should note that the union held a strike notwithstanding its contractual commitments – under the 2000–05 collective agreement between the university and the union – to not go on strike and submit certain issues to the collective agreement’s grievance machinery, culminating in the submission of the impasse to voluntary arbitration.
11. 190. The Government adds that the information provided by the complainant simply shows that the Supreme Court decision on the dispute involving the legality of the strike did not foreclose litigation on the validity of the dismissals effected by the University. The final resolution of or conclusion to the dismissal issue will however depend on the parties’ future action or reaction (i.e., appeals) to the decision that the NLRC may subsequently render.
12. 191. The Government also emphasizes that the injunctive relief issued by the NLRC on the immediate reinstatement of union members (union officers not included) is not irregular as this remedy is available to a party to a labor dispute pending appeal with the NLRC under the pertinent provisions of the Labor Code (article 218, paragraph (e)) and the NLRC’s 2005 Revised Rules of Procedure. A grant of injunctive relief does not amount to a judgement on the merits of the main case. A preliminary study may have prompted the issuance of an injunctive relief but a higher standard of evidence applies in ruling on the main case. An injunction order is also conditioned on the filing by the party who asks for it of an undertaking that will answer for any damage that may result after a finding that the requesting party is not entitled to the grant of relief. The law therefore provided adequate protection and addressed any resulting injury to the other party who would otherwise benefited from the decision of the Labor Arbiter.
13. 192. On the alleged anti-union dismissal and discrimination at the Eon Philippines Industries Corporation and the Capiz Emmanuel Hospital in Roxas city, the Government points out that – based on the complainant’s own information – these are still pending before the Labor Arbiter. Hence, the Government does not consider it proper at this point to comment on these cases. The Government adds that, the parties to this dispute are required, even on the face of a law that sufficiently addresses anti-union dismissals and protective of workers’ rights to self-organization, freedom of association and security of tenure, to still present evidence.
14. 193. The Government draws the Committee’s attention to the fact that the Supreme Court’s decision on the matters properly brought before it is final and supersedes any ruling by all inferior tribunals, including those of the Secretary of Labor and Employment in the exercise of his quasi-judicial powers. The only recourses open to the union relate to issues that are not covered nor precluded by the Supreme Court ruling.
15. 194. Similarly, the national laws – even if alleged to be contrary to international Conventions – continue to be valid unless otherwise declared by the courts. The remedy in this situation is legislative action – to amend any law the legislative and the executive departments consider offensive. The matter of amending the pertinent provisions of the Labor Code [Note: Article 263(g) of the Labor Code] will be addressed by the current session of Congress and the Committee shall be informed of any progress made in this regard.
16. 195. Finally, the Government indicates that the voluntary arbitration over the terms and conditions of employment of the workers of the San Agustin University for the period 2003–05 depends on the implementation of the Supreme Court’s decision. None of the parties have initiated any move to implement the decision and to set the voluntary arbitration proceedings in motion. To clarify this aspect of the case, the DOLE shall call the parties to a clarificatory meeting. The Government undertakes to update the Committee of the outcome of the voluntary arbitration as soon as any information becomes available.
17. 196. The Committee recalls by way of background that the facts of this case relate to article 263(g) of the Labor Code, according to which “When, in his opinion, there exists a labour dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the [Secretary of the DOLE] may assume jurisdiction over the dispute and decide it or certify the same for compulsory arbitration. Such assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order.” The Committee recalls from the previous examination of this case, that article 263(g) has been found to be contrary to freedom of association principles, and that the Government has been providing information on its amendment (House Bill No. 1505 and Senate Bill No. 1027) since June 2003 without the draft amendment having been considered by the Senate or the House of Representatives yet [346th Report, paras 1328–1332]. No new information is provided by the Government in its latest communication, except that the matter will be addressed by the current session of Congress. The Committee has already brought this issue to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
18. 197. The Committee recalls that the entire committee of the USAEU (Theodore Neil Lasola, Merlyn Jara, Julius Mario, Flaviano Manalo, Rene Cabalum, Herminigildo Calzado, Luz Calzado, Ray Anthony Zuñiga, Rizalene Villanueva, Rudante Dolar, Rover John Tavarro, Rena Lete, Alfredo Goriona, Ramon Vacante and Maximo Montero) was dismissed for not having ensured immediate compliance with an assumption of jurisdiction order issued by the Secretary of the DOLE in relation to a strike staged on 19 September 2003 and which lasted for nine hours. The Committee also recalls that, in authorizing the dismissal of the 15 trade union officials, the Court of Appeals and the Supreme Court reversed an initial decision by the Secretary of the DOLE, who, being empowered by article 263(g) and (i) to issue final decisions on such matters, had found that there was no ground for declaring the loss of employment status for the 15 trade union officers, as the strike had been lifted within the legal deadlines and that the union leaders had demonstrated good faith in their acts once the assumption of jurisdiction order was officially received by the president of the union.
19. 198. The Committee notes with regret that the Government indicates no steps taken with regard to the Committee’s recommendation for the review of these dismissals so as to ensure a conciliation with the university and the reinstatement of the 15 trade union officers. The Committee notes from the complainant’s communication that the NLRC Labor Arbiter ordered the immediate reinstatement of ten of the dismissed workers who were trade union representatives, on the ground that they did not qualify as trade union officers and had been therefore illegally dismissed. However, this decision was not acted upon by the university which obtained a temporary restraining order preventing its enforcement. While noting the Government’s comment that the remedy of injunctive relief is available under the law and does not prelude the final decision on the merits of the case, the Committee cannot avoid observing that the matter is once again the subject of protracted litigation in the context of lengthy and complex judicial proceedings. With regard to the remaining five trade union officers who were dismissed, the Committee notes, that according to the complainant, the Labor Arbiter felt precluded by the previous decisions of the Court of Appeals and the Supreme Court to examine the question of the illegality of their dismissal, despite the fact that the courts in question had refused to examine this question because it had arisen during the course of the proceedings. The complainants thus feel caught in a sort of “catch 22” situation which prevents an examination of their allegations by the relevant bodies. The issue of the dismissal of the five USAEU officials is also pending on appeal. In this regard, the Committee notes the Government’s comment that the information provided by the complainant simply shows that the Supreme Court decision did not foreclose litigation on the validity of the dismissals and that the final resolution of this issue will depend on the parties’ future action or reaction (i.e. appeals) to the decision that the NLRC may render. Thus, the Committee once again observes that the matter is left to be resolved in the context of protracted litigation.
20. 199. The Committee recalls that the dismissal of the 15 USAEU representatives and officers has been based on article 263(g) of the Labor Code which is itself contrary to freedom of association principles. The Committee 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 Case No. 2252 concerning the Philippines, 332nd Report, para. 886 and 350th Report, para. 171]. In these circumstances, given that the legal action had been pending before the Courts on various aspects of this case since 2003, the Committee once again requests the Government to take measures for an independent review of the dismissal of the entire committee of the USAEU (Theodore Neil Lasola, Merlyn Jara, Julius Mario, Flaviano Manalo, Rene Cabalum, Herminigildo Calzado, Luz Calzado, Ray Anthony Zuñiga, Rizalene Villanueva, Rudante Dolar, Rover John Tavarro, Rena Lete, Alfredo Goriona, Ramon Vacante and Maximo Montero) and to take active steps to ensure a conciliation with the university regarding their reinstatement. The Committee requests to be kept informed of all developments in this respect, including any judicial decisions rendered.
21. 200. With regard to its recommendation concerning voluntary arbitration over the terms and conditions of employment of the workers of the San Agustin University, the Committee notes that the Government is planning to hold a clarificatory hearing as to why the parties failed to resume the negotiations as ordered by the Supreme Court. The Committee observes that the voluntary arbitration concerns the terms and conditions of employment for the period 2003–05 and the excessive delay in its resumption is likely to render the issue moot. The Committee requests the Government to take all necessary steps without delay to ensure the resumption and fruitful continuation of negotiations over the terms and conditions of employment of workers at the San Agustin University not only for the period 2003–05 but also for the future. The Committee requests to be kept informed in this respect.
22. 201. With regard to its recommendation for an independent inquiry into the allegations of anti-union discrimination in the Eon Philippines Industries Corporation and the Capiz Emmanuel Hospital in Roxas city, the Committee notes that the issue is pending before the NLRC Labor Arbiter. The Committee notes that, for this reason, the Government does not consider it proper to comment on these cases. The Committee, nevertheless, requests the Government to ensure that an independent inquiry is carried out immediately into the allegations of anti-union discrimination in the Eon Philippines Industries Corporation and the Capiz Emmanuel Hospital in Roxas city so that full light may be shown upon these allegations. If the acts of anti-union discrimination are confirmed, it requests the Government to take measures to ensure that the workers concerned are reinstated in their posts without loss of pay. The Committee requests to be kept informed in this respect and to provide any decisions emanating from the NLRC in this regard.
23. 202. Finally, the Committee observes that three cases currently at the follow-up stage with regard to acts of anti-union discrimination in the Philippines [Cases Nos 1914, 2252 and 2488] illustrate considerable difficulties faced by workers in their efforts to have their grievances examined. The Committee notes in particular that all cases involve protracted litigation in the context of long and complex judicial proceedings and notes that a situation of prolonged legal uncertainty is not conducive to fruitful industrial relations. The Committee recalls that the Government is responsible for preventing all acts of anti-union discrimination and it must ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 817]. The Committee reminds the Government that ILO technical assistance is at its disposal with a view to strengthening the current system of protection against anti-union discrimination, if it so wishes.