Cas individuel (CAS) - Discussion : 2007, Publication : 96ème session CIT (2007)

A Government representative assured the Committee that her Government was deeply committed to the application of all the Conventions that it had ratified. Every effort was being made at all levels to establish the legislative and institutional framework for the exercise by workers of their right to organize. She emphasized, however, that in examining compliance with ILO standards, the context and circumstances unique in the Philippines needed to be considered, together with its history of membership and overall compliance with the many Conventions it had ratified. The Philippines was still a third world country struggling with poverty among 30 per cent of its people, while fighting an active rebellion. She added that it was a lead country in the promotion of the Decent Work Agenda in the region. It was also a country that had seen 480 strikes in 1986, falling to 12 in 2006, with only one recorded strike in the first five months of 2007. This was being achieved, not by curtailing trade union rights, but through advocacy of social dialogue, through labour education that targeted both labour and management and through conciliation and mediation, which had proven to be successful because of the increasing labour relations maturity of the workplace parties.

With regard to the comments made by the ICFTU, which referred to allegations of killings of trade unionists, she said that, in response to the alarming newspaper reports of the rising number of killings of trade unionists and journalists, the President had constituted an Independent Commission to Address Media and Activists Killings headed by a retired Supreme Court Justice, José Melo. The Commission had concluded in its report in January 2007 that "... there is no direct evidence, but only circumstantial evidence, linking some elements of the military to the killings". It had further concluded that: "Due to lack of cooperation from the activist groups, not enough evidence was presented before the Commission to allow it to pinpoint and eventually recommend prosecution of the persons ultimately responsible for the killings." Considering the recommendations of the Commission, the Supreme Court had designated 99 regional trial courts as special tribunals to resolve expeditiously or decide cases of extrajudicial killings. The special courts were mandated to: give priority to cases of activists and media personnel; conduct continuous trials to be terminated within 60 days from commencement; and render judgement within 30 days from submission for decision, among other measures.

She emphasized that these steps were concrete and conscious efforts by the Government to address the killings, including attempts to prosecute the guilty parties, whoever they were - the police, military, insurgents or ordinary murderers. The limitations imposed by the unavailability and refusal of witnesses to come forward, even when their welfare and safety were guaranteed under the Witness Protection Program, had however made it difficult, if not impossible, to arrest, prosecute and punish the culprits.

The findings of the Melo Commission clearly indicated that there was no evidence showing that the police and the military were the perpetrators of killings and other actions against trade unionists. The link to the police and the military appeared to be merely circumstantial. If and when the police and military committed the crime of killing trade unionists on the basis solely of their trade union activities, there was machinery to address these violations. In this respect, she drew a distinction between legitimate trade union activities, entitled to lawful protection, and the commission of crimes against the State, which needed to be prevented. The police and military only pursued trade unionists committing rebellion, not trade unionists exercising trade union rights. However, there was a thin line dividing some trade unionists from the illegal activities of certain rebel groups. Where a trade unionist crossed this line, there should be no question of the legitimacy of the police or military action, provided that such action was carried out in accordance with the Constitution and the law.

Turning to the issue of the suppression of trade union rights and the case of the Hacienda Luisita in 2004, she recalled that seven union members had been shot and killed during the strike by the workers of the Hacienda Luisita, while a composite team of police and military had been enforcing the assumption of jurisdiction order by the Secretary of Labour. Congressional hearings had been held on the incident and the Congressional Committees on Human Rights, Labor and Employment and Agriculture had concluded in part that human rights violations had been committed against the striking workers. However, this was not a pure case of police action against strikers. The dispersal of the strike had occurred several days after the strike, not immediately after its commencement. There were clear indications of provocation by the strikers, which had compelled the police and military forces to use force to give effect to the order by the Department of Labor and Employment. Of course, the strikers could have actually contributed to the peaceful resolution of the dispute had they complied with the legal order issued by the lawfully constituted authority.

She emphasized that the exercise of the right to strike carried with it the correlative obligation to observe the limitations imposed by law, especially those essential to the maintenance of peace and order in the community. Under Filipino law, a strike should not result in the obstruction of entry to and exit from the enterprise. When this statutory limitation was violated by the strikers, it might be necessary to enforce the law. In the context of the Hacienda Luisita strike, the excesses committed by the strikers had dictated the intervention of law enforcement officers.

In relation to the suppression of trade union rights in export processing zones, she said that the Labor Code also applied to these zones. Labour unions organized in these zones were increasing. Based on Bureau of Labor Relations data, the number of unions in special economic zones had grown from 251 in 2000 to 341 as of September 2005. The workers covered had increased from 23,000 in 2000 to nearly 34,000 in 2005. This development followed efforts to educate both the locators and the local officials on the country's labour laws and disproved the alleged harassment and intimidation of trade unionists in the zones.

With regard to the recommendation to amend article 234(c) of the Labor Code to lower the 20 per cent membership requirement for union registration, she expressed support for the removal of the minimum threshold of support signatures required for the registration of independent labour unions. She indicated that an Act had been adopted in May 2007 strengthening the right of workers to self-organization. The Act sought to expand the capacity of legitimate federations and national unions to organize and to help their local chapters acquire representation status for the purposes of collective bargaining. Any legitimate labour federation or national union could now create a local chapter which could in turn file a petition for the certification of an election without the minimum 20 per cent membership and without revealing the names of the officers and members of the local chapter. This was a positive development and a significant step towards the attainment of the change suggested by the Committee of Experts. However, the 20 per cent membership requirement was still relevant in the case of unions seeking independent registration. The Committee should note that the membership requirement served the purpose of protecting the majority from being dictated to by an extreme minority.

Turning to the recommendation to amend articles 269 and 272(b) of the Philippines Labor Code, she recalled that the Convention requested that anyone legally residing in the territory of a given State should benefit from trade union rights without distinction based on nationality. The law in her country effectively granted trade union rights to foreign nationals who were lawfully residing and working in the Philippines, and whose country of origin either extended the right to the citizens of the Philippines to join or assist labour unions or which had ratified ILO Conventions Nos 87 or 98. The exclusion from trade union rights concerned foreign nationals whose residence or employment in the Philippines was not legal, whose country of origin discriminated against foreign workers exercising trade union rights in their territory, or did not subscribe to Conventions Nos 87 or 98. She added that such exclusion was not based on the nationality or citizenship of the foreign worker, but on the lack of willingness of the country of origin to be bound by Conventions Nos 87 or 98, or to extend similar trade union rights to foreign nationals in their territory, including Filipino nationals. The exclusion therefore gave effect to the constitutional responsibility of the State to protect its citizens through lawful measures, including those intended to promote reciprocal or fair treatment of Filipino nationals in foreign countries.

With regard to the suggested amendment of articles 263(g), 264(a), 272(a), 237(a) and 270 of the Labor Code, she noted that the proposal to amend article 263(g) to limit the powers of the Secretary of Labor to intervene in labour disputes to activities or undertakings involving essential services had not become law. She recalled in this respect that the legislative process rested entirely on the judgement of the legislature, and that the Executive could only propose legislation. She added that under articles 264(a) and 272(a) of the Labor Code, the conduct of a strike per se was not criminally punishable. Mere participation in an illegal strike did not result in dismissal from work. Only union officers who knowingly participated in an illegal strike or workers who knowingly participated in the commission of illegal acts during a strike could be dismissed. Non-compliance with the substantive or procedural requirements for a valid strike could result in the strike being declared illegal. However, a strike without valid grounds was not tantamount to an illegal strike if the workers believed in good faith that an unfair labour practice had been committed against them by the employer, where such belief was based on actual circumstances. Nor did the mere participation in an illegal strike or defiance of a return to work order necessarily result in the imprisonment of strikers. However, a penalty of imprisonment could be imposed if acts of violence, force, intimidation, threat or coercion were committed during a strike. A union officer who knowingly and deliberately participated in a strike which failed to observe the requirements of the law forfeited her or his employment. Any worker who knowingly and deliberately participated in acts of violence, force, intimidation or coercion upon persons or things was liable to criminal action for her or his personal acts.

She said that the suggested amendment to article 237(a) had been discussed in the Tripartite Industrial Peace Council, but its members had decided to keep the requirement of ten member-unions for purposes only of the registration of federations or national unions. It was not required for the maintenance of legal personality, nor was it a ground for cancellation of registration. Finally, she noted that article 270 was still under consideration.

In conclusion, she said that the system was certainly not perfect, but great strides had been taken and she asked the Committee to take the small successes into account. It was the essence of democracy that people could decide for themselves the laws and policies that should govern them. It should therefore not be counted against the Government if the legislation had not yet reached the ideal standards of the ILO. She nevertheless reaffirmed her Government's intent to comply with the Convention.

The Employer members recalled that the last occasion on which the case had been discussed was in 1991. Before then it had regularly come before the Committee, including on five occasions during the 1980s. Despite the 16-year gap since the last discussion of the case, the problems were essentially the same. In this respect, it should be noted that Convention No. 87 was not an ideal, but a minimum standard. It was therefore not a promotional instrument, for which ratifying States had a certain time to bring their law and practice into conformity with its requirements. As a minimum standard, there was a requirement upon ratification to bring law and practice into line with the Convention. The 16-year gap also highlighted a problem with the present system for the selection of cases to be examined by the Committee; while certain cases were examined on an almost constant basis, it was to be regretted that cases such as that of the Philippines were not selected and discussed more frequently.

The Employer members emphasized the importance of the case, which involved allegations of murders, violence and death threats against workers. This suggested that civil liberties might not be fully protected in the country and that the investigations undertaken were not adequate. The main issue involved was not therefore that focused on by the Government representative, but the question of the extent to which life in general was protected. The Employer members recalled in this respect that a climate free of violence and intimidation was a prerequisite for the exercise of freedom of association in any country.

Of the issues raised by the Committee of Experts, with regard to the limitation on the registration of trade unions, the Employer members noted that there had been some legislative changes which would have to be examined by the Committee of Experts. In relation to the right to organize of foreign nationals, the Government indicated that this right had been extended, but the Committee of Experts was calling for its extension to cover everyone. The Government representative had not really addressed the issue of the number of trade unions required to establish a federation. The provisions relating to the receipt of foreign assistance by trade unions also still appeared to be problematical. It was therefore important for the Government to provide a full report outlining all the amendments that had been made or were proposed to the legislation and other relevant measures, so that it could be examined by the Committee of Experts at its next session with a view to assessing the extent to which the Government was in compliance with its obligations under the Convention.

The Worker members noted that the latest observation by the Committee of Experts raised the same points as in 1991, including: the minimum membership requirement for registration of a trade union; the fact that the legislation did not grant the right to organize to all nationals lawfully residing in the country; and the excessively high requirement to form federations or national unions. They also noted the points raised by the Government representative and called for a report to be sent to the Committee of Experts for assessment.

The current situation in the country was a matter of concern. Only half of the population had a permanent job, and most of them were paid the minimum wage of around 350 pesos, or less than 5 dollars a day. Little progress had been made in terms of legislation over the past 16 years, but the situation of trade union rights was even more distressing in that over 800 people, about 80 of whom were trade unionists, had been killed in the last year alone. Thousands more suffered from intimidation and harassment, either due to their political affiliation, trade union activities or the exposure of graft or corruption cases. Under these circumstances, people lacked access to decent work, a living wage or essential services free from corruption.

The Worker members recalled that the Government representative had referred to "isolated incidents" of extrajudicial killings. They indicated that the number of such cases was much too high to be called isolated and they were therefore worried that the Government was failing to recognize the gravity of the problem. The Committee of Experts had raised the issue of violence, including: the murder of four trade union leaders in 2005; anti-union violence in the sugar sector; death threats to discourage unions in the EPZ in Cavite; and the impunity of the authors of killings of seven strikers. But these were far from giving a full picture. The United Nations Special Rapporteur, who had visited the country earlier in the year, had emphasized the serious impact of extrajudicial killings and that the mere existence of such killings had an effect on society and undermined political discourse, which was essential to the resolution of the country's problems.

The Government had established the Melo Commission, thereby showing that the President acknowledged the seriousness of the problem. But its findings had not yet been made public. The Government had also introduced a witness protection programme, but few witnesses had come forward as they feared for their lives and those of their families. Furthermore, not a single perpetrator had been apprehended, and there were strong indications that the abductions, disappearances and killings were connected to members of the police or the military. The Worker members warned that impunity led to trade union rights violations and contempt of the law.

The Worker members also referred to the case of Crispin Beltran, a labour leader and member of Congress, who had been detained for 15 months, along with five other politicians. On 1 June 2007, the Supreme Court had dropped the rebellion charges against him and the other politicians. They were delighted with this ruling and hoped that he would be released in the near future.

The Worker members said that another serious violation of freedom of association consisted of the deployment of military or police forces in companies that were strike bound, where there were disputes between the management and the workers, where unions existed or were being organized. The intention of such militarization was to oppose union organization and harass and intimidate workers. They added that certain employers ignored decisions by the Supreme Court on labour matters and they therefore urged the Government to take action to implement the law and the fundamental Conventions.

In June 2007, the Anti-Terrorism Act would enter into force. The Worker members feared that this instrument would be used to silence critics of the Government, including trade unionists, lawyers and judges calling for the protection of human rights. They therefore urged the Government to: recognize the seriousness of the problem; take effective steps to end extrajudicial killings; conduct independent and impartial investigations; put into place transparent social dialogue; establish permanent independent monitoring mechanisms for trade union and human rights abuses; and restore a climate of complete freedom and security from violence and threats as a basis for the full exercise of freedom of association.

The Worker member of the Philippines expressed his support for the comments of the Committee of Experts recommending the amendment of section 270 of the Labor Code (prior permission of the Secretary of Labor for the receipt of foreign assistance by trade unions), section 234(c) (requirement of the names of 20 per cent of all employees in a bargaining unit in which a trade union seeks to operate), section 263(g) (intervention of the Government resulting in compulsory arbitration) and sections 264(a) and 272(a) (dismissal of trade union officers and penal liability for participation in illegal strikes). He urged the Government to make the recommended amendments so as to comply with Convention No. 87.

However, he expressed sadness at the perception that trade union leaders had been killed because of their exercise of the right to organize. He said such view was inaccurate and indicated that the Federation of Free Workers (FFW) and the Trade Union Congress of the Philippines (TUCP) had no such experience since the 1990s. Such killings were motivated by reasons other than the exercise of the right to organize. He emphasized that all killings had to be condemned, whatever the circumstances, and he called on the Government to conduct thorough, impartial and meaningful investigations and hold those responsible accountable.

He finally urged the social partners to: stop all killings; support all efforts to create an environment conducive to investment so as to eradicate poverty; uphold the rule of the law; and create an environment that promoted observance of, at the very least, the ILO's fundamental Conventions.

The Employer member of the Philippines agreed that the case of the Philippines was a reprise of 1991, when it had last been discussed. He also agreed with most of the points made by the Government representative. However, certain other speakers had seemed to view the Philippines as a totalitarian State, which was totally untrue. In relation to the issue of the country's compliance with international instruments, he expressed his dismay that complaints of a political nature were being brought before the Committee, when they should be dealt with by other United Nations bodies. It was important for the Committee to focus on the issue of freedom of association.

With regard to the so-called extrajudicial killings, he said it was not correct that people had been killed because of their membership to trade unions. Such a view, which tended to imply a certain responsibility of employers, was unfair. Employers, as well as workers, condemned all killings, which were a matter for the police and should be handled by public prosecutors. The discussion of such matters in the present forum might constitute interference in the internal affairs of a sovereign State.

He said that employers in the Philippines felt harassed by some recent legislative developments. For example, Act No. 9481, which strengthened the workers' right to self-organization, allowed any legitimate workers' unions or federations to establish local chapters, even if they had very few members. This Act, by giving greater freedom, was likely to increase uncertainty.

With reference to the decision by the Supreme Court concerning Mr Crispin Beltran, he said that the decision should be respected, as it had been reached through due process and on the basis of the facts.

The Worker member of Indonesia regretted, despite national and international calls for convincing measures to guarantee the safety of trade unionists and journalists in the country, that the Government had not conducted prompt, thorough, impartial and effective investigations to prosecute the perpetrators of anti-union crimes. Reports from organizations such as the International Federation of Journalists (IFJ), Amnesty International, the Center for Trade Union and Human Rights and the International Trade Union Confederation (ITUC) confirmed that the situation seemed to be getting out of control, with an increase in anti-union violence and killings.

He referred to the killing on 21 May 2007 of the journalist Dodie Nunez as an example of the continued killings and disappearances since President Arroyo had taken office. As indicated in the letter from the ITUC to the President, the high number of assassinations of trade unionists placed the country in the second place after Colombia in this respect. He also referred to the report of the IFJ indicating that the country had the second highest rate of murders of professional journalists after Iraq. He emphasized that violence against journalists was contrary to fundamental principles of civil liberties, which were essential for the exercise of freedom of association. He therefore urged the Government to redouble its efforts to investigate those responsible for the deaths of trade union leaders, to bring them to justice and to stop targeting unionists by linking them with opposition groups.

He expressed full support for all journalists and workers in the country in their struggle for a safe and free working environment. He called on the Government to act now to end the culture of impunity and to show the world that the country protected its citizens, punished criminals and valued freedom of the press and democracy.

The Worker member of the Republic of Korea, focusing on the violation of the right to freedom of association in the export processing zone (EPZ) in Cavite, in which there were 254 companies, said that trade union activities were seriously discouraged and suppressed in practice, even though the Labour Code could in principle be applied equally to EPZs. He indicated that many workers had been dismissed merely because they had formed or joined a union, or had taken part in union activities. Employers had refused to recognize or negotiate with unions, or had set up their own "yellow" unions. In the EPZ in Cavite, many of the unions that had been set up had succumbed to employer pressure, and no fewer than 11,000 workers had lost their jobs, had been forced to take leave of absence, harassed, charged or arrested as a means of denying their right to organize.

He referred to the example of the Chong Won Fashion Trade Union. The workers had voted in August 2004 to support the trade union as their sole bargaining agent. The management, however, had harassed, intimidated and taken retaliatory action against the leaders and members of the union. When the workers had formed a peaceful picket in front of the company in September 2006, the production manager had brought in police officers from the Philippines Export Zone Authority (PEZA) and security guards. In contravention of the existing guidelines on strikes, which prohibited police officers and security guards from positioning themselves within 50 metres of the picket line, the picketing workers had been dispersed forcibly, resulting in 40 workers being injured. As the union had fulfilled the legal procedures for a strike, the management had no legal basis or justification for its action.

He emphasized that it was the responsibility of the Government to promote an environment favourable to the exercise of trade union rights. Yet, instead, it had tried to prevent the organization and exercise of trade union rights by maintaining a "union free, strike free" policy in EPZs. In accordance with the OECD Guidelines for Multinational Enterprises (2000) and the ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy (1977), the Government should not restrict the right of workers to organize in order to attract foreign investment.

He indicated that the Committee of Experts had made the same recommendations in all cases in which there were alleged killings of workers, emphasizing the interdependence between civil liberties and trade union rights and recalling that workers, without distinction whatsoever, should be able to enjoy the right to freedom of association in a climate free from violence. He very much hoped that Filipino workers would be able to enjoy this right soon.

In view of the number of killings of trade unionists, he urged the Government to take immediate action to bring an end to extrajudicial killings and all forms of violence against trade unionists and to take concrete measures to launch immediate impartial and independent investigations of such killings. He also called on the Government to show its commitment to ILO principle through the immediate release of Mr Crispin Beltran of the Kilusang Mayo Uno Labour Center (KMU) and other trade union leaders.

The Worker member of Germany expressed her concern over the deterioration of the situation with regard to freedom of association in the Philippines, as indicated in the report of the Committee of Experts, including the severe obstacles to establishing and joining trade unions, compulsory arbitration by the Government and increasing anti-union violence, even involving killings of trade unionists, for which investigation and judicial proceedings had been pending for several years, which constituted clear evidence of impunity.

She also expressed concern at other matters. She referred to the issue of the lack of legal security in the country, citing for example the decision by the Supreme Court of March 2006 concerning the University of San Augustin, in which it had declared a strike illegal that had previously been ruled legal. Under such circumstances, it was difficult to trust the judicial system. Trade unionists could be arrested, as seen in the case of Crispin Beltran, and were under threat of disappearance or murder. The activities of trade unions were often limited by legally supported anti-union discrimination exercised by important private and public employers. Trade union leaders ran the risk of facing fabricated criminal charges and of being sent to jail, and were not sure of a fair trial. They had to operate in a country where 70 unionists had already been killed in 2007 and to survive they had to change their locations frequently, as had been the experience of the president of Toyota Motors Philippines Corporation Workers Association. The effective exercise of trade union activities was made difficult where an employer supported the establishment of a "yellow" trade union and restricted independent trade unions. This was the case of Bayer Philippines, where a solution had been found through an agreement for coexistence in collective bargaining between the company and the independent trade union.

Against this background, she urged the Government to revise its legislation and improve its court system so as to provide better protection for the population in general, including trade union members, thereby giving effect in practice to the principles of Conventions Nos 87 and 98.

The Government member of Colombia indicated that the Philippines was a democratic developing country, endeavouring to combat poverty and improve the living conditions of its citizens. She referred to the Government's efforts to encourage social dialogue and make progress in the application of the Decent Work Country Programme. She emphasized that the Government was willing to provide clarifications with regard to the acts of violence against trade unionists and on the creation of special courts to investigate these matters. Finally, she said that the international community should encourage and appreciate the efforts made by the judiciary.

The Government representative expressed sadness at the manner in which the present issues were being discussed in this forum. Her Government had never denied the existence of killings and the President had appointed an impartial commission to investigate the problem and bring the authors to court. However, the figures mentioned during the discussion were very doubtful, and there had been little agreement on the figures provided to the Melo Commission. Moreover, there was no evidence that the killings were based merely on trade union activism or the exercise of trade union rights. She recalled that trade union rights were protected by the Constitution. She also expressed sadness that the discussion had moved away from the provisions of the Convention and had turned to political issues.

She recalled that measures were being taken to address the problem of the killings. The President had given instructions and had asked the Melo Commission to continue its work to produce a supplementary report. The Government had sought cooperation from European Union countries, investigated the alleged involvement of the military, expanded the witness protection programme and established 99 special courts. Amendments had been made to the legislation as an initial step setting out the requirement of 20 per cent membership for the creation of a local chapter of a trade union and copies of the new legislation would be provided to the Committee of Experts. The Tripartite Industrial Peace Council had decided to retain the requirement of ten members for the establishment of federations or national unions, but only for registration of a federation or a national union, not for maintenance of legal personality or as a ground for cancellation of registration. In relation to the allegations of harassment and intimidation in EPZs, she said that the Labour Code applied equally in such zones, which were not considered to be union free, as demonstrated by the number of unions operating in the zones with the agreement of employers. She strongly rejected the allegation that a culture of impunity prevailed in her country and emphasized that it was the strong desire of the President to bring an end to the killings. In the case of Crispin Beltran, she recalled that the Supreme Court had found that there were no grounds for his continued detention and that the release order would be issued in due time. She added that his detention had had nothing to do with his trade union leadership or activities.

The Employer members emphasized the significance of the case in view of the important issue of whether civil liberties were adequately protected in the country. The Committee had been informed of legislative changes, but there were still certain matters that had not been addressed. A report should be provided in good time reflecting the amendments that had been made so that the Committee of Experts could examine the situation more closely. The conclusions should propose that a high-level mission visit the country to make a fuller assessment of all the aspects of the case.

The Worker members encouraged the Government to involve the social partners in the continued process of revising the Labour Code with a view to bringing it into conformity with this and other ILO Conventions. The Government should send copies of the amended texts to the Committee of Experts for examination. With regard to the killings, it was the responsibility of the Government to take all the necessary measures to protect witnesses and to ensure that thorough and impartial investigations were carried out. Although other United Nations bodies had their responsibilities, it should be emphasized that it was necessary to guarantee other basic human rights if labour rights were to be exercised effectively. The conclusions should call for a high-level mission to visit the country.