Observation (CEACR) - adoptée 2004, publiée 93ème session CIT (2005)

The Committee notes the information contained in the Government’s report.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations of their own choosing. 1. In its previous comments, the Committee had requested the Government to take the necessary measures to amend the requirement in section 234(c) of the Labor Code that at least 20 per cent of workers in a bargaining unit are members of a union. The Committee notes the Government’s comment that this point had been tackled during long exhaustive dialogues among representatives from labour, employer and government sectors and, following serious review and analysis within the framework of the Tripartite Industrial Peace Council, it was nonetheless decided that the requirements be retained. The Committee recalls, once again, that the requirement of a high minimum proportion of workers before a union may be formed is contrary to the right of workers to form organizations of their own choosing (see General Survey on freedom of association and collective bargaining, 1994, paragraph 81). It therefore once again requests the Government to reconsider amending section 234(c) so as to lower the minimum membership requirement for forming a union and to indicate, in its next report, the measures taken or envisaged in this respect.

2. The Committee had also requested the Government to amend sections 269 and 272(b) of the Labor Code and section 2 of Rule II of Department Order No.  40-03, which prohibit aliens (other than those with valid permits if the same rights are guaranteed to Filipino workers in the country of the alien workers) from engaging in any trade union activity under penalty of deportation. It notes that the Government has not provided any further information in this regard. Recalling that the right of workers, without distinction whatsoever, to establish and join organizations implies that anyone legally residing in the territory of a given State benefits from the trade union rights provided by the Convention, without any distinction based on nationality (see General Survey, op. cit., paragraph 63), the Committee once again asks the Government to take the necessary steps to amend these sections and to keep it informed in this regard.

Article 3. Right of workers’ organizations to organize their administration and activities and to formulate programmes without government interference. Compulsory arbitration. In its previous report, the Committee had expressed the firm hope that a proposal to amend section 263(g) of the Labor Code to limit to the essential services governmental intervention resulting in compulsory arbitration would effectively guarantee to workers their right to strike without interference by the Government, and trusted that in the meantime the Government would limit the exercise of this power in practice.  The Committee notes that the Government referred in this regard to its comments produced in response to Case No. 2195 before the Committee on Freedom of Association, in which it confirmed that the Philippine Department of Labor and Employment has submitted its recommendation to amend section 263 to the labour committees in the Philippine Senate and the House of Representatives, including the exercise of jurisdiction powers only in disputes involving establishments engaged in "essential services". The Committee once again expresses the firm hope that this initiative will result in the amendment of section 263(g) of the Labor Code in the very near future so as to effectively guarantee the right of workers’ organizations to organize their activities free from government interference. It requests the Government to indicate, in its next report, the progress made in this regard.

Sanctions for strike action. 1. In its previous comments, the Committee had noted sections 264(a) and 272(a) of the Labor Code, which provide for dismissal of trade union officers and penal liability to a maximum prison sentence of three years for participation in illegal strikes, and noted the Government’s indication that Senate Bill No. 2576 sought to amend the law on strikes which would alter the context of these penal provisions. The Committee had expressed its firm hope that the Government would take the necessary measures to amend sections 264(a) and 272(a) of the Labor Code to ensure that workers are not sanctioned in a disproportionate manner for having participated in an illegal strike and requested to be kept informed of the measures taken or envisaged in this respect, in particular within the context of the drafting of the new Labor Code (see General Survey, op. cit., paragraph 177). The Committee once again requests the Government to indicate in its next report the progress made in amending the law on strikes, as well as any measures taken or envisaged to amend these sections of the Labor Code.

2. In relation to its previous comments concerning section 146 of the Penal Code, the Committee notes with interest the Government’s indication that the penalties should be understood in the context of illegal assemblies such as "a meeting attended by armed persons for the purpose of committing a crime" or "a meeting where the audience is incited to the commission of treason, rebellion, sedition or assault" and apply only in such limited circumstances, and not to the exercise of the right to strike where the applicable sanctions are those provided for in the Labor Code.

Article 5. Right of workers’ organizations to establish and join federations and confederations and their right to affiliate with international organizations. 1. The Committee had, in its previous comments, requested the Government to provide information on the measures taken or envisaged in respect of the excessively high requirement of ten union members for a federation or national union contained in section 237(a) of the Code. The Committee notes the information provided by the Government that this requirement had been tackled during long exhaustive dialogues among representatives from labour, employer and government sectors and, following serious review and analysis within the framework of the Tripartite Industrial Peace Council, it was, nonetheless, decided that the requirements be retained. The Committee recalls, once again, that such a requirement is excessive and is incompatible with Article 5 of the Convention (see General Survey, op. cit., paragraph 191), and requests the Government to take the necessary steps promptly to ensure compliance with the Convention on this point.

2. In its previous comments, the Committee had expressed the hope that Senate Bill No. 2576, referred to in the Government’s previous report, would amend section 270 of the Labor Code in relation to the regulation of  the receipt of foreign assistance by trade unions and had requested to be kept informed in this regard. The Committee once again notes the indication in the Government’s latest report that this provision is no longer being enforced in practice and that the Department of Labor and Employment has indicated to Congress that it should be expressly repealed. The Committee requests the Government to indicate in its next report the progress made in this regard.