Informe provisional - Informe núm. 378, Junio 2016

1. 648. The complaint is contained in a communication dated 26 March 2015 from Kilusang Mayo Uno (KMU).
2. 649. Since there has been no reply from the Government, the Committee has been obliged to postpone its examination of the case on two occasions. At its meeting in March 2016 [see 377th Report, para. 7], the Committee issued an urgent appeal to the Government, indicating that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report approved by the Governing Body, it could present a report on the substance of the case at its next meeting even if the information or observations requested had not been received in due time. To date, the Government has not sent any information.
3. 650. The Philippines has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 651. In a communication dated 26 March 2015, the complainant organization KMU alleges harassment, intimidation and threats against trade union leaders and members by the armed forces in collusion with private companies.
2. 652. The complainant denounces the failure of the Government to ensure that the rights of trade unions and workers are adequately respected as set forth in ILO Conventions Nos 87 and 98, particularly the Government’s failure to eliminate the culture of impunity, of which the country’s labour sector is a victim. According to the complainant, despite the promised reforms under the current Government, violations against the rights of workers and trade unions persist, and the climate of impunity produced by assimilating industrial relations with the Government’s counterinsurgency programme Oplan Bayanihan has and will continue to have a demonstrable impact on trade union activities such as organizing, representation, assertion of rights, and enforcement of individual and collective contractual agreements.
3. 653. The complainant states that the allegations concern specifically cases that have occurred in Region 11 or Southern Mindanao Region (SMR), and clearly demonstrate that trade union violations in the country continue to occur with impunity and act as a stumbling block to the full exercise of workers’ rights to organize, collectively bargain and strike under Conventions Nos 87 and 98.

a. Harassment, intimidation, witch-hunting and grave threats committed by the military and police forces against trade union leaders

a.1. Listing of trade union leaders in the military’s order of battle; vilification of union leaders and members and accusing them of being members and supporters of the armed rebel group New People’s Army (NPA)

1. Perlita Milallos, President, Freshmax Workers Union–National Federation of Labor Unions–Kilusang Mayo Uno (FWU–NAFLU–KMU), Compostela, Compostela Valley

1. 654. The complainant indicates that Ms Milallos led the union in a successful strike against a Korean-owned banana plantation in 2013 and has continued to be active on workers’ concerns. The complainant alleges that, on 26 November 2014, elements of the 66th Infantry Battalion of the Armed Forces of the Philippines (AFP) interrogated her in her own residence for nearly three hours and asked her about her activities as a union and community leader. The military told her about the peace and development programmes the Government was planning for Compostela and reiterated that they needed cooperation from the residents and that strikes and pickets did not help. The soldiers informed her that she was listed in the military’s order of battle, even claiming that she owned a “codename” in the underground communist movement. The military tried to squeeze information from Ms Milallos about a certain rebel named “Busyong” and threatened her that it knew that one of her sons was a member of the NPA. She vehemently denied these allegations as purely untrue. Furthermore, the soldiers also attempted to bribe her with a monthly stipend, cell phone and cell phone load in exchange for her close cooperation with the Government’s counter-insurgency programme.

2. Rogelio Cañabano, Vice-President of Bigkis ng Nagkakaisang Manggagawa sa Apex Mines–Association of Democratic Labor Organizations–Kilusang Mayo Uno (BINA–ADLO–KMIJ), Maco, Compostela Valley

1. 655. The complainant alleges that Mr Cañabano experienced a series of harassments by the Philippine military. On 7 August 2014, soldiers belonging to the 71st Infantry Battalion photographed his house and took away a picture of him. On 25 August 2014, soldiers in plain clothes interrogated Mr Cañabano on his whereabouts and union activities, and pressed him to give them a list of all union officers. The following day, the soldiers entered his home and hounded him with the same questions, this time asking him who the organizers of KMU were. On 9 September 2014, soldiers again barged inside the home of Mr Cañabano and interrogated him. The soldiers pressed Mr Cañabano about union activities, and asked for the names of leaders and union members, including names of organizers.

3. Musahamat Farm 2 Workers’ Labor Union–National Federation of Labour Unions–Kilusang Mayo Uno (MWLU–NAFLU–KMU), Pantukan, Compostela Valley, its officials, namely Esperidion Cabaltera, Richard Genabe, Dionisio Gonazales, Jovito Socias, Geraldine Suico, Cenon Arcepulo and Bernardita Almero

1. 656. The complainant alleges that officers of the Musahamat Farm 2 Workers’ Labour Union of Pantukan, Compostela Valley were harassed and made to pose as rebel surrenders on 29 August 2014. This incident occurred following a torching incident at the Musahamat Farm 1 premises on 22 August 2014 by members of the NPA. Furthermore, the complainant alleges that the military connived with the company management to call the union to a meeting where five heavily armed soldiers of the 71st Infantry Battalion were waiting and interrogated them for four hours. Paraphernalia and tarpaulin of the Communist Party of the Philippines–New People’s Army–National Democratic Front (CPP–NPA–NDF) were placed in front of the union officers and they were videotaped and audiotaped while undergoing questioning by the soldiers. Soldiers are still seen inside the company compound of Musahamat Farms, Inc.

4. Radio Mindanao Network Davao Employees Union–National Federation of Labour Unions–Kilusang Mayo Uno (RDEU–NAFLU–KMU), Davao City

1. 657. The complainant states that, due to unfair labour practice and refusal to bargain, radio workers of Radio Mindanao Network (RMN) Davao went on strike for 41 days beginning 2 October 2014. The complainant alleges that, during the strike and months prior to the strike conducted by RDEU–NAFLU–KMU, radio commentators belonging to the management persistently vilified the officers of the union and the federation NAFLU–KMU, including red-tagging the union as a front of the CPP–NPA–NDF. KMU SMR Secretary-General, Romualdo Basilio, was also vilified and demonized by radio commentators in the programme “Koskos Batikos”.

a.2. Death threats, blacklisting and other forms of harassment

5. Vicente Barrios, Chairperson of KMU-SMR and President of Nagkahiusang Mamumuo sa Suyapa Farm–National Federation of Labour Unions–Kilusang Mayo Uno (NAMASUFA–NAFLU–KMU)

1. 658. The complainant states that Mr Barrios is a union leader who has survived two assassination attempts in 2005 and 2006 and braved several threats to his life and intimidation. Mr Barrios’ struggle and that of the workers of Compostela became the subject of the ILO high-level mission in 2009 but until now, the case remains unsolved.
2. 659. The complainant alleges that Mr Barrios’ struggle with the multinational fruit company Sumitomo Fruits has made him a consistent target of harassment thereafter. After a month-long struggle against union busting, Mr Barrios and members of two packing plants in Compostela, Compostela Valley were locked in a dispute with the fruit company in 2012 but were able to return to work and promised their backwages as per the compromise agreement between the company’s contractors and the two unions affected. The compromise agreement was not fulfilled by one of the contractors. On 25 January, when workers conducted a picket to press for payment of backwages, the contractor fired his gun once and pointed it at Mr Barrio threatening his life. The incident was settled at the level of the barangay (township) but as the labour dispute between the fruit company and the packing plants around Compostela intensifies, Mr Barrios’ life continues to be in grave danger.

b. Filing of trumped-up charges against trade union leaders and members due to their involvement and active participation in legitimate economic and political activities of the trade unions

6. Artemio Robilla and Danilo Delegencia, President and Board member, respectively, of Maragusan DOLE Stanfilco Workers’ Union–National Federation of Labour Unions–Kilusang Mayo Uno (MDSLU–NAFLU–KMU)

1. 660. The complainant indicates that Mr Robilla and Mr Delegencia were named in a warrant of arrest for alleged murder of supervisor Notalio Mamon of DOLE–STANFILCO on 3 February 2014. Murder and robbery cases were filed before the Provincial Prosecutors Office with NPS Docket No. XI-01-INV-14B-00064. The two union officials have been indicted on the crime but have filed a motion for reconsideration and the deferment of the issuance of the warrant of arrest. According to the complainant, the charges of murder and robbery are utterly false and politically motivated, and both leaders have been unwavering defenders of workers’ rights in Maragusan, a heavily militarized area in Compostela Valley where the connivance of big business and state armed forces has served to viciously repress the workers’ right to organize and freedom of association. The union officials were instrumental in helping illegally dismissed workers claim retirement benefits which DOLE–STANFILCO refused to pay in 2013, in violation of the Labour Code.
2. 661. In the light of the ongoing violations, the complainant expresses the hope that: (i) military and government officials responsible for cases of union repression, especially harassment and intimidations of union leaders, will be prosecuted; (ii) the trumped-up criminal cases filed against union leaders will be dropped; (iii) the military will pull out immediately and unconditionally from company premises and workers’ communities; (iv) military interference in union activities and labour issues will end because such intervention hinders productive dialogue between employers’ and workers’ communities; (v) vilification campaigns by the military against Kilusang Mayo Uno will stop; and (vi) the assimilation of industrial relations to counterinsurgency programme Oplan Bayanihan will end. The complainant hopes that the Government will adhere to the core labour Conventions it is signatory to and the view that the full exercise of the right to organize and unionize suggests a healthy democracy and is not destructive to economic and political stability, and that social justice will eventually be attained, enabling workers and people to enjoy their fundamental rights to speak, to be heard, to associate, to collectively bargain and to conduct concerted actions.

B. The Committee’s conclusions

1. 662. The Committee regrets that, despite the time that has elapsed since the presentation of the complaint, the Government has not replied to the complainant’s allegations even though it has been requested several times, including through an urgent appeal, to present its comments and observations on this case.
2. 663. Hence, in accordance with the applicable procedural rules [see 127th Report, para. 17, approved by the Governing Body at its 184th Session], the Committee is obliged to present a report on the substance of the case without being able to take account of the information which it had hoped to receive from the Government.
3. 664. The Committee reminds the Government that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations of violations of freedom of association is to promote respect for this freedom in law and in fact. The Committee remains confident that, if the procedure protects governments from unreasonable accusations, governments, on their side, will recognize the importance of presenting, for objective examination, detailed replies concerning allegations made against them [see First Report, para. 31].
4. 665. The Committee notes that, in the present case, the complainant organization alleges harassment, intimidation and threats against trade union leaders and members by the armed forces in collusion with private companies.
5. 666. The Committee notes, in particular, the complainant’s allegations, accompanied by supporting documentation, that: (i) with regard to Perlita Milallos, President of the Freshmax Workers Union–NAFLU–KMU, on 26 November 2014, elements of the 66th Infantry Battalion of the Armed Forces of the Philippines, interrogated her at home for three hours, asking about her union activities, stressing that they needed cooperation rather than strikes and pickets, informing her that she was listed in the military’s order of battle, claiming to know that she was part of the underground communist movement and her son was a member of the NPA (claims that she denies), attempting to squeeze information and bribe her to cooperate with the Government’s counter-insurgency programme; (ii) with regard to Rogelio Cañabano, Vice-President of Bigkis ng Nagkakaisang Manggagawa sa Apex Mines–Association of Democratic Labor Organizations–KMU, on 7 August 2014, soldiers belonging to the 71st Infantry Battalion took photographs of his house and of him, on 25 and 26 August and 9 September 2014, soldiers entered his home, interrogated him on his whereabouts and union activities and pressed him to give a list of all union officers and the names of KMU organizers; (iii) with regard to Esperidion Cabaltera, Richard Genabe, Dionisio Gonazales, Jovito Socias, Geraldine Suico, Cenon Arcepulo and Bernardita Almero, officers of the Musahamat Farm 2 Workers’ Labour Union of Pantukan, on 29 August 2014, following a torching incident by members of the NPA, military connived with the company to call the union to a meeting where heavily armed soldiers of the 71st Infantry Battalion interrogated the union officers at the workplace for four hours, taping them with paraphernalia of CPP–NPA–NDF placed in front of them. Soldiers are still seen inside the company; (iv) with regard to the Radio Mindanao Network Davao Employees Union (RDEU)–NAFLU–KMU, before and during a strike of radio workers in October 2014, radio commentators belonging to the management persistently vilified the union’s officers, the federation NAFLU–KMU and the KMU–SMR Secretary-General, Romualdo Basilio as belonging to the CPP–NPA–NDF, for which a complaint was filed by Mr Basilio against the Association of Broadcasters of the Philippines; (v) with regard to Vicente Barrios, Chairperson of KMU–SMR and President of Nagkahiusang Mamumuo sa Suyapa Farm (NAMASUFA)–NAFLU–KMU, in the framework of a lengthy labour dispute between the multinational fruit company Sumitomo Fruits and two packing plants, during a picket to press for observance of the compromise agreement concluded after a lockout, a contractor fired a gun once and pointed it at Mr Barrios threatening him on 25 January 2014. Mr Barrios’ life continues to be in grave danger as the labour dispute intensifies; and (vi) with regard to Artemio Robilla and Danilo Delegencia, President and Board member of Maragusan DOLE Stanfilco Workers’ Union–NAFLU–KMU, on 3 February 2014, an arrest warrant was issued and false and politically motivated charges of murder and robbery of supervisor Notalio Mamon of DOLE–STANFILCO were filed against the two union leaders who had been instrumental in helping illegally dismissed workers claim retirement benefits which DOLE–STANFILCO had refused to pay in 2013; the Provincial Prosecutors Office indicted them for murder.
6. 667. The Committee notes with concern that the allegations in this case present similarities to allegations previously examined by the Committee in the framework of Case No. 2528. It also notes that all alleged acts have occurred in the region of Mindanao, especially Compostela Valley and Davao City.
7. 668. Firstly, concerning the various acts of harassment and intimidation of the above union officials, the Committee wishes to generally recall that acts of harassment and intimidation carried out against workers by reason of trade union membership or legitimate trade union activities, while not necessarily prejudicing workers in their employment, may discourage them from joining organizations of their own choosing, thereby violating their right to organize. In particular, in relation to the alleged threat at gunpoint in the context of a picket, of Mr Barrios (the death threats and assassination attempt of whom have previously been the subject of Case No. 2528), the Committee recalls that the environment of fear induced by threats to the life of trade unionists has inevitable repercussions on the exercise of trade union activities, and the exercise of these activities is possible only in a context of respect for basic human rights and in an atmosphere free of violence, pressure and threats of any kind. With respect to the alleged lengthy interrogations of union leaders by the military, the Committee recalls that measures depriving trade unionists of their freedom on grounds related to their trade union activity, even where they are merely summoned or questioned for a short period, constitute an obstacle to the exercise of trade union rights and that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected [see Digest, op. cit., paras 44, 60, 63 and 786]. As regards specifically the alleged vilification of union officials assimilating them to the CPP–NPA–NDF, the Committee recalls that, although the exercise of trade union activity or the holding of trade union office does not provide immunity as regards the application of ordinary criminal law, workers should have the right, without distinction whatsoever, in particular without discrimination on the basis of political opinion, to join the organization of their own choosing. They should have the right to establish the organizations that they consider necessary in a climate of complete security irrespective of whether or not they support the social and economic model of the Government, including the political model of the country [see Digest, op. cit., paras 212 and 213].
8. 669. The Committee requests the Government to take all necessary measures to guarantee the security of Vicente Barrios, Perlita Milallos, Rogelio Cañabano and the other harassed trade union officials named above. Recalling that, in the framework of Case No. 2528, the allegations of harassment and intimidation had been referred to the National Tripartite Industrial Peace Council (NTIPC) Monitoring Body for discussion and issuance of recommendations, the Committee also requests the Government to take the necessary measures to ensure the full and swift investigation and resolution of the current allegations of acts of harassment and intimidation of trade union leaders and members of unions affiliated to the KMU.
9. 670. Stressing once again that, while the military clearly has a key role to play in ensuring law and order in the country, blanket linkages of trade unions to the insurgency has a stigmatizing effect and often places union leaders and members in a situation of extreme insecurity [see also 356th Report, Case No. 2528, para. 1182], the Committee requests the Government to take all necessary measures in the future to ensure respect for the principles enunciated above. Recalling that, in 2009, the Committee of Experts on the Application of Conventions and Recommendations was able to note that, in keeping with the high-level mission’s recommendations, the Executive Secretary, speaking on behalf of the President, stated that, with the repeal of the anti-subversion law, those opposing the Government were no longer regarded as subversive or targeted in this regard and any such persecution would not be tolerated, the Committee expects that the Government will take the necessary accompanying measures, including the re-issuance of appropriate high-level instructions, to ensure the strict observance of due process guarantees in the context of any surveillance and interrogation operations by the army and police in a way that guarantees that the legitimate rights of workers’ organizations can be exercised in a climate that is free from violence, pressure or threats of any kind against their leaders and members [see also 356th Report, Case No. 2528, para. 1184]. As to the alleged listing of trade unionists in the so-called “order of battle”, having previously noted with concern in the framework of Case No. 2528 that the Armed Forces of the Philippines (AFP) did maintain “order of battle” lists featuring trade unionists which had led to the commission of acts of violence against them, the Committee reiterates that such measures go against the duty to take all appropriate measures to guarantee that, irrespective of trade union affiliation, trade union rights can be exercised in normal conditions with respect for basic human rights and in a climate free of violence, pressure, fear and threats of any kind [see also 356th Report, Case No. 2528, para. 1179]. Recalling that all practices involving the blacklisting of trade union officials or members constitute a serious threat to the free exercise of trade union rights and, in general, governments should take stringent measures to combat such practices [see Digest, op. cit., para. 803], the Committee requests the Government to indicate the measures taken to suppress “order of battle” lists which are likely to lead to the commission of acts of violence against trade unionists on the basis of their purported ideology.
10. 671. Secondly, as regards the alleged presence of military in and around the workplace, the Committee expects that the Government will take the necessary accompanying measures, including the issuance of appropriate high-level instructions, to bring to an end prolonged military presence inside workplaces which is liable to have an intimidating effect on the workers wishing to engage in legitimate trade union activities and to create an atmosphere of mistrust which is hardly conducive to harmonious industrial relations [see also 356th Report, Case No. 2528, para. 1184].
11. 672. Thirdly, as to the allegation that the criminal charges brought against Artemio Robilla and Danilo Delegencia leading to their indictment for murder, were false and linked to the exercise of legitimate trade union activities, the Committee notes that the Committee of Experts on the Application of Conventions and Recommendations was able to note in 2015 the Government’s indications that the criminal charges brought against Artemio Robilla and Danilo Delegencia are under a new investigation, and that the DOLE and the Department of Justice issued Joint Clarificatory Memorandum Circular No. 1-15 to clarify the provisions of the DOLE–DILG–PNP–DND–AFP Joint Guidelines on the Conduct of the AFP/Philippine National Police (PNP) Relative to the Exercise of Workers’ Right to Freedom of Association, Collective Bargaining, Concerted Actions and Other Trade Union Activities, which makes clear that before filing information in court on cases arising out of or related to labour disputes, prosecutors must secure clearance from the DOLE or the Office of the President, and that this requirement for clearance applies to cases arising out of the exercise of workers’ freedom of association, collective bargaining and other trade union activities. The Committee welcomes the above initiative of the Government to provide safeguards against false criminal charges against trade union members and to avoid detention of workers on the basis of their union activities. As regards the concrete allegation concerning the two union officials, the Committee is not in a position to determine, on the basis of the information brought before it, whether these cases concern trade union activities, and requests the Government to submit further and as precise information as possible concerning the legal or judicial proceedings instituted as a result of the charges and the result of such proceedings.