Observation (CEACR) - adoptée 1995, publiée 82ème session CIT (1995)

With reference to its previous observations, the Committee notes the information provided by the Government in its latest report, as well as the conclusions of the Committee on Freedom of Association in Cases Nos. 1572, 1615 (292nd Report, approved by the Governing Body in March 1994) and 1718 (295th Report, approved by the Governing Body in November 1994).

I. Article 3 of the Convention. 1. In previous comments, the Committee has noted that sections 263(g) and (i) of the Labor Code restrict the right to strike in non-essential services by imposing compulsory arbitration when, in the opinion of the Secretary of Labor and Employment, a planned or current strike affects an industry indispensable to the national interest. The Committee notes with interest from the Government's report that amendments to this section have been proposed in Senate Bill No. 1757 which seeks to limit this power only to disputes affecting industries performing essential services (meaning "medical, water supply, telephone, electric, national mass transport and other similar services, the disruption of which services could endanger the life and safety of the general public") and that the Bill has recently been filed with the Senate Committee of Labor and Human Resources Development for deliberation and public hearings.

With respect to the inclusion of national mass transport as an essential service, the Committee, like the Committee on Freedom of Association with respect to the question of strikes in transport services, is of the opinion that such services are not in themselves essential services in the strict sense of the term, that is, those the interruption of which would endanger the life, personal safety or health of whole or part of the population. However, the Committee, like the Committee on Freedom of Association, is mindful of the difficulties and inconveniences that the population living on islands could be subjected to following a stoppage in transport services and considers that, in such a situation, the Government might try to conclude an agreement on minimum services to be maintained (291st Report, paragraph 156 (Norway)). The Government might therefore wish to consider establishing a minimum service, in consultation with the workers' and employers' organizations concerned, for national mass transport, similar to the effective skeletal workforce proposed in the Bill with respect to medical institutions.

Furthermore, the Committee notes that the amendments proposed in the Bill with respect to the powers of the President would, if adopted, permit intervention in strikes without limitation, whereas such power should be restricted to situations of acute national crisis, and in such cases, limited in duration, to interventions with respect to essential services in the strict sense of the term, and to public servants exercising authority in the name of the State.

2. The Committee notes with regret that the Government has not replied to the comments it has been raising for several years concerning penalties in the Labor Code for participation in illegal strikes: the dismissal of trade union officers (section 264(a)); penal liability to a maximum prison sentence of three years (section 272(a)); or imprisonment for the organizers or leaders of strikes and participants in pickets deemed to be for propaganda purposes against the Government (section 146 of the revised Penal Code).

Furthermore, while noting the Government's reiteration that the limitation of the right to elect workers' representatives freely by virtue of Rule II(3)(f) of Book V implementing the Labor Code (officers of a union operating in an enterprise must be employed there) was intended to ensure democratic representation of the workers in the establishment and that no complaints have arisen in this regard from either sector, the Committee points out that such legislation entails the risk of interference by the employer through the dismissal of trade union leaders for the exercise of legitimate trade union activities with the result (or even the intention) of depriving them, in the future, from holding a position as a trade union officer. This is evident particularly in the case of section 264(a) of the Labor Code which permits the dismissal of trade union officers for participating in an illegal strike, who then, in turn, would no longer be eligible for a post as union officer.

The Government states that it is nevertheless taking into account the Committee's comments on this matter and will try to temper, as much as possible, the application of this requirement, particularly when it would pose difficulties in the workers' exercise of their fundamental rights. The Committee therefore hopes that the Government will take the necessary measures to render this requirement more flexible so as to allow, for example, a reasonable proportion of a union's officers to come from outside the particular enterprise or to admit as candidates persons who have previously been employed in the occupation or enterprise concerned (see 1994 General Survey on Freedom of Association and Collective Bargaining, paragraph 117).

The Government is requested to indicate, in its next report, the progress made in bringing its legislation concerning strikes into conformity with the principles of the Convention and to supply copies of any texts adopted in this regard.

II. The Committee would also recall the following further discrepancies between the Labor Code and the provisions of Articles 2 and 5 of the Convention: (i) the requirement that at least 20 per cent of the workers in a bargaining unit are members of a union for the union to be registered (section 234(c)); (ii) the requirement of too high a number of unions (ten) to establish a federation or a central organization (section 237(a)); (iii) the prohibition of aliens - other than those with valid permits if the same rights are guaranteed to Filipino workers in the country of origin of the alien workers - from engaging in any trade union activity (section 269) under penalty of deportation (section 272(b)).

Noting that the Government has sought technical assistance from the International Labour Office for the reform of national labour laws, the Committee expresses the firm hope that its comments on the above points will be taken into account in order to bring these legislative provisions into conformity with the Convention and requests the Government to indicate, in its next report, the progress made in this regard.

III. Finally, the Committee had noted in its previous comments information which had been given to the Committee on Freedom of Association on the passage through Congress of a new Civil Service Code which would grant government workers the right to strike in certain circumstances, in accordance with the Filipino Constitution (article XIII(3) which grants all workers the right to strike). The Government is requested to indicate, in its next report, whether this Code has indeed been adopted and to supply a copy with its next report.