Cas individuel (CAS) - Discussion : 2016, Publication : 105ème session CIT (2016)

The Government provided the following written information.

In six years of sustained constructive engagement with the ILO, the Government has diligently reported concrete results, framed in our four areas of commitment. The National Tripartite Industrial Peace Council (NTIPC) constituted and institutionalized as the high-level monitoring body with regional tripartite monitoring structures, the Regional Tripartite Monitoring Body (RTMB), has built a comprehensive inventory of 65 cases of extrajudicial killings, 11 cases of abduction and 12 cases of harassment. Of the 65 cases, 50 occurred from 2001 to June 2010 under the Arroyo Administration, while 15 – the cases of Rodel Estrellado, Kenneth Reyes, Rudy and Roderick Dejos, Bonifacio Labasan, Santos Manrique, Josephine Estacio, Carlo Rodriguez, Celito Bacay, Poncing Infante, Emilio Rivera, Romy Almacin, Antonio Petalcorin, Kagi Alimudin Lucman, Rolando Pango and Florencio Romano – are under the Aquino Administration. The NTIPC–MB, with 20 representatives each for employers’ organizations affiliated with the International Organisation of Employers (IOE) and labour organizations affiliated with the International Trade Union Confederation (ITUC), is monitoring the movement of these cases, including the four resolved by the trial courts; these are: (1) Teotimo Dante, which resulted in the conviction of all four accused on 28 May 2012; (2) Ricardo Ramos, which resulted in the acquittal of the accused for failure to prove his guilt beyond reasonable doubt on 7 February 2012; (3) Antonio Pantonial, which resulted in the conviction of the accused for murder qualified by treachery; and (4) Fr William Tadena, which resulted in the acquittal of one accused on reasonable doubt, while the other accused is at large. The NTIPC–MB has brought before the Department of Justice (DOJ) chaired AO35-Inter-Agency Committee (AO35-IAC) all of the 65 cases of extrajudicial killings, 11 cases of abduction and 12 cases of harassment. The AO35-IAC report however has focused on the 65 cases of extrajudicial killings, and 11 of which (Diosdado Fortuna, Florante Collantes, Fr William Tadena, Abelardo Ladera, Samuel Bandilla, Tirso Cruz, Gil Gojol, Benjamin Bayles, Rodel Estrellado and Rolando Pango) have been identified as extrajudicial killings based on their criteria/definition.

The 54 cases not covered by AO35-IAC are investigated as regular criminal cases. According to the DOJ, the reasons for the exclusion from AO35-IAC include: (1) insufficiency of evidence which triggers referral of the case to agencies like the police, the National Bureau of Investigation and the Commission on Human Rights for further investigation subject to a second review by the technical working group; and (2) absence of all the elements of extrajudicial killings as provided in the AO35-IAC Operational Guidelines. The non-AO35 cases include cases before the Committee on Freedom of Association (CFA). Case No. 3185 was first brought to the attention of the Department of Labor and Employment (DOLE) through a press statement by the National Confederation of Transport Workers’ Union (NCTU) and the Alliance of Progressive Labor (APL) in June 2013. The case was previously with the Commission on Human Rights (CHR), the police and the DOJ, which spearheads the AO35-IAC. Considering its exclusion from the AO35-IAC, RTMB Region XI in Davao City was tasked with gathering additional information on this case for a possible second review by the AO35.

With regard to CFA Cases Nos 3119 and 3159, reports from the different RTMBs were deliberated at the Tripartite Executive Committee of the NTIPC–MB (TEC–MB) on 6 May 2016. In Case No. 3119, out of the six cases, only the case of Cañabano is considered to be related to freedom of association, but the TEC–MB tasked RTMB XI to further verify and interview Mr Cañabano and the radio anchor involved in the case of RMN Davao Employees Union. The TEC–MB elevates for consideration of the NTIPC–MB the case of Cañabano and the recommendation to refer the other five non-freedom of association cases to the Commission on Human Rights and the Advocate General’s Office of the Armed Forces of the Philippines (AFP). Of the 65 cases of killings, only 12 were filed in court, with nine of the cases with resolution and three – two cases of ongoing investigation and one archived – pending resolution. A detailed breakdown of the status of the cases will be provided in a separate report. Progress on the 11 AO35-IAC cases is hindered by lack of material witnesses and/or non-cooperation of victims’ families and relatives. The limited capacity for forensic evidence and reliance on witnesses/testimonial evidence render the prospects not too positive. The Government continues to encounter the obstacles of desistance or disinterest of the victims or their families to pursue the cases. Much needs to be done in the criminal justice system that brought this situation.

The Government is addressing the source of the problem through wide-ranging reforms in labour market governance and the sectoral goal of ensuring decent work under the ILO Technical Cooperation Programme (TCP). The TCP with the ILO started only after the 2009 High-level Mission, or 56 years after the ratification of Convention No. 87 and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), on 29 December 1953. The ILO TCP on training and capacity-building can generally be classified into: (a) capacity-building and advocacy for international labour standards, freedom of association and collective bargaining; and (b) observance of prescribed conduct by the police and military. Over 70 capacity-building activities on labour rights have been carried out under the TCP. Around 4,384 stakeholders have been oriented and capacitated on international labour standards, and on the observance of tripartite instruments governing the engagement of the social partners, including the police, military and key government agencies, during labour disputes. TCP activities have resulted in:

(a) Key instruments governing the engagement of the social partners have been developed: (1) Joint DOLE–PNP–PEZA Guidelines (PNP Guidelines), signed on 23 May 2011; (2) DOLE Administrative Order No. 104, Operational Guidelines on Inter-Agency Coordination and Monitoring of Labor Disputes (DOLE implementors “dos” and “don’ts”), signed on 27 February 2012; (3) Guidelines on the Conduct of the DOLE, DILG, DND, DOJ, AFP and PNP Relative to the Exercise of Workers’ Rights and Activities (AFP Guidelines), signed on 7 May 2012; and (4) Operational Guidelines on the Regional Tripartite Monitoring Bodies. The PNP and AFP Guidelines have been effective in coordinating all stakeholders and preventing violence during strikes. In recent cases in Region 4A, violence was prevented when the newly engaged security agency was instructed to observe the PNP Guidelines and in the PhilSteel labour dispute, where the PNP has summoned the security agencies reported to have crossed the picket to explain why their license should not be revoked. In the Davao labour disputes at Lapanday Box (banana plantation) and RMN (radio station), the PNP Guidelines mobilized multi-stakeholder participation in ensuring the peaceful exercise of workers’ rights during collective bargaining negotiations. In the labour dispute at Albay Electric Cooperative, Inc. (ALECO), where the management directly requested the PNP Legaspi Station police to enter the company premises, the PNP Guidelines have helped to prevent the supposed plan to dismantle the picket line. Information on the PNP and AFP Guidelines is now part of the DOLE standard operating procedure in labour disputes likely to develop into a strike/lockout.

(b) To prevent the conversion of labour disputes into criminal cases, the DOJ issued Memorandum Circular No. 16 on 22 April 2014 to reinforce Circulars Nos 15, series of 1982, and 9, series of 1986, requiring fiscals/prosecutors to secure clearance from the DOLE and/or the Office of the President “before taking cognizance of complaints for preliminary investigation and the filing in court of the corresponding information of cases arising out of, or related to, a labour dispute”, including with “allegations of violence, coercion, physical injuries, assault upon a person in authority and other similar acts of intimidation obstructing the free ingress to and egress from a factory or place of operation of the machines of such factory, or the employer’s premises”. The DOLE and DOJ further issued Joint Clarificatory Memorandum Circular No. 1-15 on the requirement of clearance from the DOLE and/or from the Office of the President for cases arising out of the exercise of freedom of association, collective bargaining, concerted actions and other trade union activities.

The TCP includes a component on the improvement of labour market governance. Together with the social partners, labour rights violations and labour-related incidence of violence were addressed by identifying the root causes of labour disputes, resulting in the mechanisms for labour law compliance, dispute prevention, settlement and case disposition. Robust tripartite consultation with the social partners on policy and programme implementation were strengthened. These resulted in:

Substantially improved implementation of labour laws: the two-year-old Labor Laws Compliance System (LLCS), supported by the ILO and the tripartite partners, with a management information system (an online web-based application system that utilizes an electronic checklist for real-time transmission and processing of data collected from the field) and combines the regulatory and developmental enforcement approaches, achieved remarkable accomplishments: (a) projected company visitations become more frequent, from once every 16 years to once every two years; (b) the establishments covered increased, from an annual average of 23,000 in 2004–13 to an annual average of 63,627 in 2014–15; (c) the number of workers covered increased, from an annual average of 628,000 in 2004–13 to an annual average of 2.9 million in 2014–15; (d) compliance with general labour standards increased, from 70.73 per cent in 2004–13 to 77.59 per cent in 2014–15; (e) the correction rate increased, from 21 per cent in 2004–13 to 27 per cent in 2014–15; (f) the enforcement of a total of 94 labour laws, including regulations on contracting or ambiguous or disguised employment, compared to only 23 under the old enforcement system; and (g) with 574 labour law compliance officers compared with the previous 202 labour inspectors. The tripartite partners endorsed House Bill No. 4659 in the 16th Congress to institutionalize the LLCS, and it will be refiled in the 17th Congress as part of the DOLE 2016–2022 Priority Legislative Agenda.

Effective case management system: the 30-day mandatory conciliation-mediation services, or the Single Entry Approach (SEnA) for individual disputes, was institutionalized through Republic Act No. 10396, along with exhaustive conciliation-mediation for collective disputes and the overall objective of empowering the parties to process and resolve issues at the plant level through convergence with DOLE programmes and services. SEnA, as a prior mechanism, has afforded workers and employers fair, prompt, accessible and inexpensive settlement of labour issues. It has shortened the processing of labour disputes to an average of 15 days compared with the duration of one year to ten years in compulsory arbitration; 99 per cent reduction of small money claims before the DOLE Regional Offices and reduction in the dockets of the National Labor Relations Commission (NLRC); and free and accessible services, as it is present in all DOLE offices. SEnA has resulted in high settlement and disposition rates of 81 per cent and 94 per cent (102,382 cases settled and 128,257 cases disposed), respectively, from 2011 to 2015. It has benefited around 154,439 workers with PHP 4.951-B monetary awards.

Unprecedented single-digit strike incidence: empowering the parties through exhaustive conciliation-mediation of collective labour disputes and rationalized use of assumption of jurisdiction power of the Secretary of Labor and Employment resulted in single-digit annual strike incidence from 69 in 2005–10 to only 17 in 2011–15; while on assumed cases, from 104 in 2005–10 to just 14 in 2011–15, punctuated with a decline in 2013–15 to only three, resolved through a conciliation order.

Institutionalized expansive tripartism and social dialogue: tripartism and social dialogue is institutionalized through Republic Act No. 10395 as the primary instrument to promote transparency, participative governance and sectoral accountability, addressing social disparities, while improving social cohesion among all stakeholders. Several tripartite structures at the national level and across regions and industries have been created to serve as venues for stakeholder participation in policy- and decision-making processes on matters concerning labour and employment. As of January 2016, there are 134 regional Tripartite Industry Peace Councils (TIPCs); nine national Industry Tripartite Councils (ITCs); and 284 regional ITCs. These structures are forums for tripartite information and prior consultation in developing regional or industry framework agreements. Thus, in these tripartite structures, a total of 178 industry voluntary codes of good practices on productivity and decent work were formulated from 2011 to 2015 to serve as voluntary industry standards. Through social dialogue, the labour sector in the NTIPC was able to get commitment on linking investment incentives with compliance with international labour standards. To date, the creation of workers’ rights board for specific industries or tariff lines that will be accessed under the Generalized System of Preferences or free trade agreements is being worked out with the Department of Trade and Industry. At the workplace level, the single-digit strike incidence indicates the growing acceptance of social dialogue, either by them or through conciliation-mediation, as an empowering tool for the parties to resolve their disputes. This has been recognized even by the militant section of the labour movement with big cases that historically would have resulted in strikes or lockouts being settled through social dialogue. Tripartism and social dialogue have never been as robust and productive as under the current administration. The progress achieved through reforms implemented with support from the social partners is a good indicator of the constructive engagement ushered in by tripartism and social dialogue.

With respect to the recommendation by the High-level Mission to align the Labor Code, as amended, with international labour standards, particularly on freedom of association and collective bargaining, by amending the following: (a) Article 263(g) of the Labor Code, on overbroad assumption of jurisdiction power of the Secretary of Labor and Employment; (b) Article 234(c) of the Labor Code, requiring 20 per cent support signatures for registration of independent unions; (c) Article 264 and 272 of the Labor Code, imposing penal sanctions for peaceful strikes; (d) Article 270 of the Labor Code, requiring prior approval for foreign assistance; and (e) Article 237(1) of the Labor Code, on the ten locals requirement for registration of federations, the proposed bills failed to pass during the remaining sessions of the 16th Congress. Thus, all shall, subject to the discretion of the incoming administration, be part of the DOLE Legislative Priority Measures for the 17th Congress, including the following legislative proposals: (a) Security of Tenure Bill, Employment Relations, and Termination of Employment; (b) Rationalizing Government Intervention in Labor Dispute or the proposed modified Assumption of Jurisdiction Bill; (c) Magna Carta of Filipino Seafarers Bill; (d) LLCS Bill; and (e) Occupational Safety and Health Standards Bill. However, pending the adoption of these amendments, administrative issuances have been implemented and enforced through the ILO and tripartite partners supported LLCS, which contributed to the country’s industrial peace.

While progress has been achieved, the TCP with the ILO arising from the 2009 High-level Mission is not over. Reforms in labour market governance are foundational and sustainability would benefit from technical assistance on: (a) conciliation-mediation techniques and strategies; (b) application of international labour standards on adjudication; (c) obtaining high level of compliance with labour laws and management/development of the LLCS–MIS; (d) development/implementation of just transition and green jobs; (e) understanding non-standard forms of employment and policy approaches; and (f) business and human rights. The track followed to address the source of the problem affecting compliance with this Convention has shown positive results. The Government is committed to aligning the provisions of the Labor Code with Conventions Nos 87 and 98, and to fully realizing the potential of the NTIPC–MB and RTMBs in case build-up, the NTIPC has proposed a fully-funded, independent and capacitated case-based NTIPC–MB Tripartite Validating Team. The Validating Team will be constituted under NTIPC–MB auspices, on cases needing independent validation or for the review of the cases under CFA Cases Nos 3119, 3139 and 3185. In closing, the Government affirms its commitment to obtaining substantial progress on cases with allegations of trade union rights violations. The AO35 IAC and the National Monitoring Mechanism (NMM) (Note 1) are already in place and work with the NTIPC–MB in ensuring progress in observance of Conventions Nos 87 and 98. What remains to be done is the reform of the criminal justice system, which is forthcoming with the new Congress and under the administration of President Rodrigo R. Duterte.

In addition, before the Committee, a Government representative expressed her Government’s commitment to complying with the Convention in law and practice, building on the six years of sustained constructive engagement with the ILO supervisory bodies and the Office, including the 2009 ILO High-level Mission. It was the first time since the High-level Mission that the Philippines had reported to the Conference Committee on concrete measures and results achieved. She expressed great appreciation for the ILO’s support and technical assistance, the first provided to the Philippines since the ratification of the Convention. The Government, with support from the social partners, represented by local affiliates of the ITUC and the IOE, had implemented four major reforms towards giving full effect to the Convention. The first was the built-in institutionalized high-level tripartite monitoring body, the NTIPC–MB, with a regional tripartite structure, that helped to ensure observance of international labour standards, and particularly the Convention. The NTIPC–MB worked with an inter-agency committee created by the President under Administrative Order No. 35 (AO35), to provide appropriate redress using composite teams of investigators for unsolved cases of extrajudicial killings. The second reform was a proactive system of tracking cases involving allegations of labour rights violations, in coordination with the Commission on Human Rights, the Philippine National Police, the armed forces of the Philippines, the Department of Justice and the courts. The third reform consisted of tripartite-supported legislative reforms for effective compliance with the principles of freedom of association and collective bargaining. And the fourth consisted of foundational and wide-ranging reforms in labour market governance towards securing decent work for all, resulting in significant progress in the effective implementation of labour laws, fair and speedy settlement of disputes, including those involving industrial action, and strengthened tripartism and social dialogue. The impact of the reforms would not be felt overnight, as the root causes of the problems needed to be addressed in order to find lasting and sustainable industrial peace based on social justice. Thus, the collaboration and constructive engagement under the ILO technical cooperation programme on freedom of association encompassed a much broader agenda, with the concrete results presented in detail in the written submission to the Committee.

The NTIPC–MB had built a comprehensive inventory of 65 cases of extrajudicial killings, including those covered by Cases Nos 3185 and 3119 of the Committee on Freedom of Association. The information concerning the two cases was raw and validation by the Regional Tripartite Monitoring Body (RTMB) was still ongoing. Regarding Case No. 3159, the initial finding of unfair labour practice with fines was under appeal before the National Labour Relations Committee (NLRC). Although the case was pending in the legal and judicial systems, the Government was committed to providing the Committee with an update on its progress. In the absence of judicial reforms, in addition to the information provided in the written submission, the Government had diligently pursued, under the technical cooperation programme, awareness raising and capacity building on fundamental labour rights. The Philippine National Police (PNP) and the Armed Forces of the Philippines (AFP) guidelines had been effective in coordinating the action of all stakeholders to allow the free exercise of trade union rights and to prevent violence, injuries and death in strike and picket areas. It formed part of the Department of Labor and Employment (DOLE) standard operating procedure in labour disputes likely to ripen into a strike/lockout. The Department of Justice (DOJ) Memorandum Circular No. 16-14 had reinforced the requirement for prosecutors to secure clearance from the Department of Labor and Employment or the Office of the President for all complaints arising out of, or related to, a labour dispute with a view to preventing indiscriminate conversion of labour disputes into criminal cases. Certification had been issued in at least five criminal cases, which had resulted in their dismissal. With the effective use of these instruments, there had been no reported cases of violence in strike and picket areas.

Implementation of labour law compliance had substantially improved through the new Labor Laws Compliance System (LLCS). Trade union organizations had been engaged in the conduct of the Special Assessment or Visit of Establishments (SAVE), with nationwide operation, and their participation had been institutionalized in the revised Labor Laws Compliance System rules. Under separate issuances, terms and conditions of work of seafarers engaged in domestic shipping and international voyages, fishers on board commercial fishing vessels, collection agency, bus drivers and domestic workers were covered for the first time by the LLCS. A more effective case management system was in place, namely through the SEnA for individual disputes, and an improved labour arbitration system had shown its capacity to decide cases within a shorter period of six months with a higher degree of fairness, equity and consistency, compared to the previous record of one to two years.

Supplementing the information provided in the written submission, she also emphasized the unprecedented single-digit incidence of strikes, as well as the rare use of the assumption of jurisdiction, only upon the consent of the parties, with no record of defiance and ending in conciliated decisions. Stronger and more expansive social dialogue was in place and there was commitment for trade and economic agencies to link investment incentives to compliance with international labour standards. The creation of a workers’ rights board for specific industries or which that would be accessed under the Generalized System of Preferences or free trade agreements, was being worked out by the social partners in the Clothing and Textile Industry Tripartite Council. With respect to the call by the High-level Mission to align the Labour Code with international labour standards, the NTIPC had adopted tripartite resolutions endorsing draft bills. Although deliberations on the proposed bills had been completed in the Lower House of Congress, they had failed to be passed by the Senate for various reasons, including the change in leadership in the Committee on Labor. The Chairperson of the Committee on Labor and Employment in the Lower House had committed to refile all the bills as principal sponsor in the 17th Congress starting on 25 July 2016.

On behalf of the NTIPC, as part of the priority legislative agenda 2016–22, the Government was committed to: (i) aligning the provisions of the Labour Code with the Convention; (ii) strengthening the NTIPC–MB and fully realizing its potential in case build-up, by operationalizing the recently approved NTIPC Resolution for a fully-funded, independent and capacitated case-based tripartite validating team for cases needing independent review, such as Cases Nos 3119, 3159 and 3185; (iii) ensuring funding for the operation of the validating teams that would be constituted from the existing 2016 DOLE budget for the NTIPC; and (iv) including its funding as a separate budget item in the proposed 2017 General Appropriation Act. She concluded by affirming the Government’s commitment, along with the social partners, to obtaining sustained progress in compliance with the Convention in law and practice, and to working with relevant government agencies for reforms in the criminal justice system towards ending cases of impunity arising from trade union rights violations. Recognizing that the work was far from complete, but also the concrete results already achieved, she reiterated the Government’s gratitude to the ILO, its supervisory bodies and donor countries.

The Employer members recalled their disagreement with the views of the Committee of Experts concerning the right to strike, and particularly that, since there were no ILO standards on strikes, the scope and conditions of the exercise of the right to strike should be regulated at the national level, a position endorsed by the Government group at the tripartite meeting in February 2015 and by the Governing Body in March 2015. They emphasized that, at face value, this was a case of systemic discrimination by the State against workers’ organizations and their members. Closer examination of the issues suggested, however, that this long-standing case had three facets. The first concerned the specific allegations made by workers’ organizations over the years. The Employer members emphasized that they did not wish to denigrate in any way the seriousness of the issues brought to the attention of the Committee. This year’s observation concerned serious allegations of human rights violations, including: two killings and an assassination attempt on trade union officials; the violent suppression of strikes and other collective actions by the police and the armed forces; harassment of unionists and prevention of people from joining trade unions in export processing zones; breaches of the Memorandum of Agreement between DOLE and the Philippine Economic Zone Authority (PEZA); and bankruptcy falsification to deny workers trade union rights. Such cases could not go unchallenged.

The second facet was the Government’s response to those allegations, and the context of that response. The Government had not been idle. The main elements of its activity included: (i) the National Monitoring Mechanism (NMM), with the mandate to monitor the nation’s progress on the resolution of human rights violations, prioritizing in the short term cases of extrajudicial killings, enforced disappearances and torture, and to provide legal and other services, which had resulted in several convictions for unlawful killings; (ii) the Inter-Agency Committee on Extra-Legal Killings, Enforced Disappearances, Torture and Other Grave Violations of the Right to Life, Liberty and Security of Persons (IAC), entrusted with the investigation of cases of extrajudicial killings, enforced disappearances, torture and other grave human rights violations perpetrated by state and non-state forces, the prioritization of unsolved cases and the creation of special investigation teams. The social partners had been invited to participate actively in the investigations, while members of the NTIPC–MB had been given observer status in the IAC; and (iii) awareness-raising campaigns on observance of freedom of assembly, capacity building for monitoring focal persons and measures to strengthen the existing monitoring structures. The Employer members welcomed these developments and requested the Government to provide further information on the functioning of the NMM, the Department of Justice Special Task Force and the IAC in practice, including on the participation of the social partners in IAC investigations, as well as the number and types of cases addressed by these mechanisms. Progress in many cases was still inconclusive. For example, the main update provided on three cases of the union officials killed was, respectively, that the victim’s mother had decided not to pursue the case, that the case was still on trial and that assistance from the victim’s wife could not be obtained. However, the Employer members believed that the context in which the Government must investigate these serious allegations, a long-standing background of political and civil instability, including armed insurrection, had not been given sufficient weight in the consideration of this case, both at present and in the past. Not every human rights violation was a breach of labour rights, especially if the person against whom the violation had been committed had been engaged in an unlawful or criminal act at the time. It was therefore vital to the consideration of the cases that it be made clear what law was being transgressed and whether that law conformed with international standards. This was not always clear and any lack of clarity could only inhibit fair consideration of the case. The unions had expressed concerns that the Human Security Act could be misused to suppress legitimate trade union activities. For its part, the Government had stated that the Act could not be used against the exercise of trade union rights, especially legitimate trade union activities, and that guidelines existed to ensure that the armed forces and the police could only intervene in trade union activities if expressly requested to do so by the DOLE, if a criminal act had been, was or was about to be committed, or in the case of actual violence arising out of a labour dispute.

With respect to the Labour Code, the Employer members noted that a Tripartite Labour Code Review Team was a partner in the drafting process. Concerning Article 2 of the Convention, Bill No. 5886 currently before Congress only assigned the right to establish and join organizations to aliens with a valid working permit and did not deal with concerns over the denial of the right to organize to certain public servants. The Employer members recalled that, while it was possible under Right to Organise and Collective Bargaining Convention, 1949 (No. 98), to exclude certain public servants from collective bargaining, this was not a matter contemplated by Convention No.87, which dealt with the right to organize. They hoped that legislative measures would ensure that all workers benefited from the right to establish and join organizations and requested the Government to provide information on any developments in this respect. With regard to Article 3, the Employer members noted that the proposed changes harmonized the list of industries indispensable to the national interest, in which governmental intervention was possible, with the essential services criteria of the Convention. They welcomed the Government’s initiative to limit governmental intervention to industries which could be defined as essential services in the strict sense of the term. In relation to the comments of the Committee of Experts concerning the principle that no penal sanctions should be imposed against a worker for having carried out a peaceful strike, they expressed concern as there was no consensus over the existence of a right to strike in the Convention. They also noted other positive steps, such as bills, removing the requirement for government permission for foreign assistance to trade unions and reducing the registration requirement from ten to five affiliates for federations.

The third facet of the present case was the manner in which the Committee of Experts considered and reflected upon the information received. It was this aspect upon which the Employer members harboured concerns relating to the scope of the Committee of Experts and the Conference Committee to reach conclusions on matters that were not labour issues covered by the Convention. It was not the report of the Committee of Experts to the Conference Committee, but rather the conclusions of the Conference Committee on the case that formed the basis for government action. It was therefore important for the Committee of Experts to reflect the information received factually and to consider all the facts in a balanced manner. The Employer members criticized the fact that the Committee of Experts noted “with deep concern” alleged serious violations of trade union rights, while it simply reported the details of the Government’s response. An uninformed reader could interpret the presentation of the report as having a particular emphasis, when that ultimately might not reflect the outcome of the Conference Committee’s deliberations.

In the view of the Employer members, there were three lessons to be learned: (i) cases often had more to them than was apparent from the initial allegations; (ii) government responses were not of themselves proof of solution, conclusive results being the preferred outcome; and (iii) the Committee of Experts needed to ensure balanced consideration of cases by not emphasizing or characterizing any particular aspect of allegations or government responses, this being a matter for the Conference Committee. The Employer members therefore made the following recommendations: (i) that the Committee hope that all alleged cases of the violation of trade unions rights would be the subject of appropriate investigations, which would be vigorously pursued and finalized in the near future with a view to establishing the facts, determining responsibilities and punishing the perpetrators; (ii) that the Committee acknowledge the establishment of several monitoring entities and requested the Government to provide further information on these mechanisms and progress on the cases assigned to them; (iii) that the Committee urge the Government to continue bringing national legislation into conformity with certain Articles of the Convention; and (iv) that the Committee of Experts be encouraged to confine its observations to a factual reporting of the concerns of the social partners and government responses, and leave it to the Conference Committee to place emphasis on any aspect it deemed appropriate.

The Worker members considered that the designation by the Committee of Experts of violation of freedom of association in the Philippines as a double-footnoted case was an appropriate reaction to the ongoing violence against trade unionists and the lack of prosecutions for extrajudicial killings. They were deeply concerned that the exercise of the right to freedom of association would further suffer under the newly elected President, who had openly admitted his association with death squads responsible for over 1,000 executions while Mayor of Davao and had threatened to rule the country by executive fiat if the legislature or courts stood in his way. The avoidance of unions through false forms of employment and the defects in existing laws and their enforcement had led to a climate in which freedom of association was nearly impossible to exercise. The Worker members recalled that the Committee of Experts had expressed deep concern over the allegations of anti-union violence and had urged the Government to undertake appropriate investigations. They further emphasized that the Government had an obligation to take measures to guarantee that trade union rights could 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, but that it had so far failed in this regard, as shown by some recent cases of anti-union violence. On 2 July 2013, Antonio Petalcorin, President of the Davao-based Network of Transport Organizations (NETO) had been killed as a result of his campaign to expose corruption at the Transportation Board Office in Davao. The Government claimed that, pursuant to its guidelines, this murder was not an extrajudicial killing. Shortly afterwards, one of his colleagues had been murdered and another had been subjected to threats and violence forcing him into hiding. On 29 November 2014, Rolando Pango, who was organizing sugar plantation workers on land leased and operated by the President of the United Sugar Producers Federation of the Philippines, had been killed in Binalbagan town in Negros Occidental. The case had been determined by the Government to be an extrajudicial killing. Latest reports indicated that two men had been charged with murder, but the status of the case was unknown. On 8 March 2015, Florencio Romano, an organizer of the National Coalition for the Protection of Workers’ Rights, affiliated to Kilusang Mayo Uno (KMU), who was actively organizing workers in a food-processing plant, had been found murdered in Batangas City, south of Manila. No one had been charged with the murder. In April 2016, gunmen had opened fire on a KMU camp set up by agricultural workers in preparation for a strike in Pantukan town, Compostela Valley, concerning the dismissal of 52 workers, and there had been an attempt to burn down the workers’ camp. No one had been arrested for the crime. Such cases were evidence that trade unionists were at great risk. The Human Security Act constituted a powerful tool to further undermine freedom of association, as it vaguely defined terrorism, allowing the Government to arrest and detain persons suspected of terrorism without warrants. Under the Act, citizens, including labour leaders, could be subjected to surveillance, wiretapping, detention, interrogation and the freezing of bank accounts on mere suspicion of terrorism. Mandatory prison sentences were set at 40 years without the possibility of parole, and heavy penalties were also established for lesser crimes. The United Nations Human Rights Council and numerous human rights organizations had raised serious concerns about the impact of the Act on the exercise of freedom of association, which needed to be remedied in law to prevent the Government from the misapplication of these provisions when it so wished.

The use of dubious forms of employment to obscure the existence of an employment relationship was a serious problem intended to divest workers of their rights under the law, which was particularly acute in the Philippines. Over 73 per cent of the workforce was estimated to be employed on short-term contracts in 2013, which undermined the ability of trade unions to recruit members, as contract workers were not allowed to establish and join unions by law. Misclassification of workers as “confidential” was very common, since under the Labour Code such workers were prohibited from joining a union. In other cases, workers were simply given a different denominator, to exclude them from an employment relationship. Employees in broadcasting companies were referred to as “talents”; companies engaged in tuna fishing and processing referred to their fishers as “industrial partners”; in one case, the denial of the employment status of fishing workers had been used to refuse critical assistance to 43 crew members captured and held in captivity for months in Indonesia. In addition, several classes of workers, such as firefighters and prison wardens, were excluded from the Code. The Committee of Experts had noted obstacles to the registration of trade unions, including high minimum membership requirements. In 2009, in the context of the High-level Mission, the ILO had noted that, under Executive Order No. 180, that the percentage requirement was calculated as a proportion of all government employees throughout the country, which was likely to preclude the establishment of a union of public sector employees. The Committee of Experts had also taken note of allegations of the violation of freedom of association in export processing zones (EPZs) and the violation of the Memorandum of Understanding between DOLE and PEZA. The measures in place to combat violations in EPZs were ineffective to sanction those who violated the law, even when courts ordered reinstatement. The Worker members referred to the case of a company in the EPZ in Batino, Laguna, supplier to a major Korean electronics multinational company, which had retrenched more than 30 workers who were known to be union activists a few weeks before the certification elections, had refused to allow these workers to cast their votes inside the company premises, contrary to the law, and had refused to recognize the union that had nonetheless been chosen as the bargaining representative.

The Worker members concluded by recalling the numerous legislative issues raised by the Committee of Experts, including the amendment of the law to remove the possibility of compulsory arbitration in sectors that were not essential in the strict sense of the term, the amendment of sections 264 and 272 to remove the possibility of penal sanctions for participating in a peaceful strike, and section 270, which prohibited unions from receiving foreign assistance without prior approval. Despite the High-level Mission that had visited the Philippines in 2009 with regard to freedom of association, and a number of activities undertaken under the auspices of the ILO, many of the concerns raised remained unresolved and it could be time for another such mission to return to the country.

The Employer member of the Philippines qualified his reaction to the double-footnoting of the case of the Philippines by the Committee of Experts as suspended belief. He raised questions concerning: (i) the extent of the mandate of the Committee of Experts to make conclusions and recommendations on the subject of criminal cases and their prosecution under the national law of a member State; (ii) when there would be a procedure for the closure of recurring and continuing general allegations of harassment and threats to the right of workers to organize; and (iii) the mandate of the Committee of Experts regarding matters of the national security of a member State. His country should not be taken to task for substantially criminal cases remotely connected to labour standards, which should be left to the national justice system. He believed that the Philippines was a very, if not the most, compliant country with the Convention in that part of the world. The Committee of Experts should have given more thought to the background of a continuing armed insurgency that hopefully might be resolved soon. Investigations into violations of the Convention were different in situations of relative peace or of armed conflict. Rebels in the guise of trade unionists, or vice versa, might be hard to distinguish in a very fluid situation, where objectives were identical. The better part of discretion was to be discreet in telling a member State, in the context of armed conflict, to stop military operations conducted in the interests of national security simply because trade unionists might be involved.

Double footnoting was justified by the seriousness of a case, which seemed to be equated with failure to provide quick results or automatic responses. That could not always be achieved by a legal system that recognized independent branches of government put in place to achieve checks and balances in the exercise of governmental powers. In a constitutional democracy such as the Philippines, structural challenges to the well-meaning and inspired work of the Committee of Experts must be recognized. For instance, the executive could not order: the judiciary to speed up the wheels of justice, although several procedural reforms were in place to achieve this; or the Congress to enact laws recommended by the Committee. In general, the conclusions and recommendations of the Committee of Experts read like directives to the executive department of a sovereign state to: drop alleged trumped up criminal cases involving trade unionists; provide security to trade unionists allegedly under threat; or stop legitimate military operations in response to an armed insurgency. He raised the question of whether the Committee of Experts should make such requests and whether a member State was obliged to do more than expected under its own legal system and pursuant to its own determination of self-preservation and the national interest.

The Worker member of the Philippines said that there would be opportunities for reform, since a new Government would take office on 30 June and the President-elect had promised to end unlawful contractual employment schemes and to uphold the rights of workers to security of tenure. Prospects were bright for peace negotiations with the aim of ending decades of war in the Philippines. Recalling that the right to organize had been recognized in the Constitution of the Philippines since 1899, he said that, in practice much still remained to be done to fully comply with the Convention, which could only be achieved by the Government with the cooperation and active participation of the social partners. Following the 2009 High-level Mission, which had been welcomed by the tripartite constituents, a comprehensive technical cooperation programme to improve understanding and respect for the fundamental principles and rights of freedom of association and collective bargaining had been adopted. Nevertheless, reported killings of trade unionists had continued, namely of Antonio Petalcorin and Rolando Pango, reported by the Center of United and Progressive Workers (SENTRO) in 2015. Mr Pango’s killing had been considered to be trade union-related, while that of Mr Petalcorin was being treated as an ordinary crime. This was a serious matter that should not be taken lightly by the social partners. Much had already been done, as reported by the Government, but more was needed to further reduce the number of cases of violations and the existing gaps between law and practice. The ITUC, Education International (EI), the Trade Union Congress of the Philippines (TUCP) and SENTRO had referred to particular cases, and the Federation of Free Workers (FFW) had a number of cases which it was trying to resolve domestically. As examples of violations of Article 3(2) of the Convention, he said that, while the FFW was organizing tugboat workers in 2012, government agencies had been used to harass union leaders to discourage union organizing. The Special Board of Marine Inquiry in Manila had been used to harass the union president, Jose Emmy Tiongco, of the Malayan Tugboat Officers Association, through an administrative case for allegedly violating marine safety in 2013. Qualified theft charges had also been brought against Tugboat Captain Ruel Guda, as well as Bendell Esquerra, Mark Anthony Orbito and John Mark Trio to destroy their resolve to maintain their union membership, and the case had been dismissed for lack of probable cause in 2014. A case had also been brought against union President Tiongco and 15 others for illegal strikes, not with the DOLE or NLRC, which had jurisdiction over labour disputes, but before the Maritime Industry Authority, at the latter’s initiative, despite objections by the union and the fact that there was no verified complaint. The case had later been dropped. Despite the requirement in the AFP Guidelines for clearance from DOLE or the Office of the President before filing criminal information in court on cases arising out of or related to labour disputes, Captain Tajanlangit and Ramil Estolloso, Federation of Free Workers members, had also been indicted for attempted homicide. These cases had subsequently been dismissed after trial for lack of evidence. Similarly, women trade union leaders Jocelyn Nono and Bing Jumamil had been indicted and were facing libel charges for allegedly holding a streamer with a derogatory statement against their employer at a picket line of striking workers. A positive example of the application of the Guidelines had resulted in criminal charges being dismissed against 15 trade unionists in a delivery company and nine trade union members in a bus company, due to lack of clearance from DOLE. Although both workers and employers were involved in the national monitoring body, the latter needed to be funded and given full-time personnel to fulfil its functions effectively of monitoring violations of trade union rights. He also lauded the tripartite legislative proposals to amend the Labour Code in line with the Convention and other ILO standards, while emphasizing that continued lobbying for the adoption of such amendments in law was needed. He concluded by urging the Government to: end killings of trade unionists and stop other trade union rights violations; review the case of Antonio Petalcorin, the killing of whom was in the view of the trade unions related to his initiative of organizing a union; prosecute and punish perpetrators of trade union rights violations; provide adequate funding and capable staff for the national monitoring body; effectively implement the requirement for clearance before filing criminal charges against workers in cases related to or arising out of the exercise of the right to freedom of association; remove the harsh punishment of termination of employment for workers involved in illegal strikes or for defiance of the assumption order of the Secretary of Labor and Employment; certify as urgent all tripartite endorsed bills in Congress related to freedom of association to be compliant with ILO standards; and ratify the Labour Relations (Public Service) Convention, 1978 (No. 151).

The Government member of Cambodia, speaking on behalf of the Member States of the Association of Southeast Asian Nations (ASEAN) and the Republic of Korea, acknowledged the efforts made by the Government to address issues pertaining to the application of the Convention and Convention No. 98 and encouraged its continuing technical cooperation with the ILO. The tripartite-endorsed reforms instituted by the Government in response to the 2009 High-level Mission included the establishment of the monitoring and investigation mechanisms, including the National Tripartite Industrial Peace Council – Monitoring Body (NTIPC–MB), the National Monitoring Mechanism (NMM) and the Inter Agency Committee on Extra Legal Killings, Enforced Disappearances, Torture and Other Grave Violations of the Right to Life, Liberty and Security of Persons (IAC); capacity building for national and regional monitoring focal persons, such as the police and the military, the judiciary and prosecution, on the observance of freedom of association and collective bargaining since 2010; as well as reforms of labour justice administration, trade incentives linkage with the observance of labour rights and a creative track of securing high-level compliance with labour standards by transforming the enforcement mechanism into the LLCS. He highlighted the reduction in the number of cases of trade union rights violations as a tangible demonstration of bringing an end to cases of civil liberties and trade union rights violations, and called on the Committee to consider the foregoing efforts and progress, and most especially the commitments made by the Government to align its legal and institutional mechanisms with the requirements of Conventions Nos 87 and 98.

The Government member of the Netherlands, speaking on behalf of the European Union (EU) and its Member States, as well as the former Yugoslav Republic of Macedonia, Norway and the Republic of Moldova, emphasized their involvement in the promotion of universal ratification and implementation of the core labour standards in the framework of the Action Plan on Human Rights, adopted in July 2015, and recalled the commitments made by the Philippines within the framework of the GSP+ Agreement and the Framework Agreement on Partnership and Cooperation between the European Union and its Member States, of the One Part, and the Republic of the Philippines, of the Other Part. She noted with deep concern the allegations of violations of freedom of association in the Philippines and, in particular, the killing of trade union leaders, the abduction and arbitrary detention of trade union members and the dramatic rise in false criminal charges against them. Welcoming the establishment by the Government of monitoring entities entrusted with investigating extrajudicial killings, enforced disappearances and torture, she concurred with the Committee of Experts and expressed the firm hope that the established bodies, with the active participation of the social partners, would appropriately investigate all cases, determine responsibilities and punish the perpetrators. Referring to the EU–Philippines Justice Support Programme, now in its second phase of implementation, she urged the Government to provide information on the number of cases investigated and the punishments imposed. Furthermore, as indicated in the observation of the Committee of Experts, the Government should take measures to: amend the Labour Code so as to bring it into conformity with the Convention; ensure that House Bill No. 5886 safeguards the right to establish and join organizations of all workers in the Philippines, irrespective of their residence or work permit; and adopt legislation which would guarantee to public sector, temporary or outsourced workers, as well as workers in managerial positions, the right to establish and join organizations to defend their occupational interests. A reasonable minimum membership requirement for establishment of an independent trade union should be determined in consultation with the social partners and a requirement for government permission to receive foreign assistance should be repealed. Relevant legislation should be adopted to give effect to the Government’s intention to restrict compulsory arbitration to essential services and to remove penal sanctions for the exercise of the right to strike.

The Worker member of Japan, also speaking on behalf of the International Transport Workers’ Federation (ITF), said that trade unions should have the right to organize their activities without interference by the Government. He shared the deep concern expressed by the Committee of Experts with regard to numerous serious violations of trade union rights, including harassment, disappearances and killings of trade unionists. He considered that the current situation in the country could discourage foreign investment and urged the Government to investigate the murders.

The Employer member of the United Kingdom, referring to the observation of the Committee of Experts in relation to the right to strike, recalled that there was no consensus of the social partners as to whether Convention No. 87 included the right to strike. He pointed out that the Government group considered that the right to strike was to be regulated at the national level and expressed concern about the fact that the Committee of Experts continued to make observations regarding the right to strike in the context of Convention No. 87. He considered that such observations, which were intended to facilitate the work of the Conference Committee, the apex of the ILO supervisory machinery, risked being misinterpreted. He therefore hoped that the Committee of Experts would reflect upon the tension that such observations created and the importance of the harmony of the social partners and the Government group across the ILO supervisory system.

An observer representing Public Services International (PSI) recalled the previous discussion of this case in 2009 and said that the “soft” approach in terms of government initiatives and the availability of ILO assistance had not delivered the expected results, as the case was being discussed again. The core issues of labour law reform and non-compliance with the Convention remained at stake. Referring to the statement made by the Worker member of the Philippines, she hoped that the promises made by the incoming President would be fulfilled in relation to ending unlawful short contracts of employment and upholding the right of workers to security of tenure. At the same time, she recalled that the change of Government would lead to the reinitiation of complex negotiations and referred to ambiguous statements by the President-elect during the electoral campaign on the role of labour unions that sounded more like threats than an invitation to cooperation. Public Services International affiliates had cooperated in good faith with the former Government and encouraging results had been achieved in the campaign to ratify Convention No. 151. This had primarily been done through the work of the social partners in the public sector, and she suggested that the results achieved in the public sector could serve as good practice for correct industrial relations in the private sector as well. Recalling the strong final statement made by the Employer members seven years ago regarding the need to take urgent action for the implementation of the Convention in law and practice, she expressed the hope that ILO constituents would work together to produce tangible change in the Philippines.

The Worker member of the Republic of Korea drew the Committee’s attention to the infringement of freedom of association in export processing zones (EPZs). Despite the fact that the Department of Labor and Employment had promised to amend the Labour Code and to investigate extrajudicial killings of trade unionists in the wake of the ILO High-level Mission in 2009, violations of freedom of association, union busting and employer interference still prevailed, especially in EPZs. The Korean Confederation of Trade Unions (KCTU) had been closely monitoring the situation of workers’ rights in EPZs, especially in Cavite, the biggest EPZ in the country employing around 60,000 workers, and Laguna. According to interviews with workers carried out in 2014 and information reported to the KCTU and other Korean NGOs, workers often faced oppression when they tried to establish a union. For example, according to a worker from a Korean company in Cavite, on 24 June 2014, workers had submitted a petition for certification of election to the DOLE to set up an independent trade union. Although 95 out of 258 workers had initially signed the petition, 35 had withdrawn their signatures after the company had threated to move out if the union was established. The company had also coerced people to sign statements attesting that they would not join the union promising in return financial aid for typhoon damage. According to another worker from a different company, managers interfered whenever workers tried to set up a union, sometimes by promoting workers or paying them more. Freedom of association was thus in danger and the connivance of state agencies, especially the DOLE and the Philippines Export Zone Authority (PEZA), in union busting and management interference in union establishment should be seriously addressed. The reform of the Labour Code, as recommended by the Committee of Experts, should be completed as a matter of urgency to ensure that all workers could exercise freedom of association rights without any fear of interference.

The Government member of India noted that the Government was committed to addressing all issues pertaining to the application of Conventions Nos 87 and 98 and recalled that, following the 2009 ILO High-level Mission, a number of substantial reforms had been undertaken to align national policies and measures with international obligations. They included capacity building and awareness raising among law enforcement agencies and other stakeholders, as well as an increase in the number of compliance officers. These measures had had a positive effect in upholding the enforcement of labour rights and protection, including through the promotion of social dialogue. The Committee should take into account the progress achieved in its conclusions and the Government should continue its long-standing cooperation with the ILO and avail itself of its technical assistance, as appropriate.

The Worker member of Indonesia drew the Committee’s attention to the massive practice of labour contractualization in the Philippines, both in the public and private sectors, which deprived workers of security of tenure, benefits and the right to organize, and therefore, excluded them from collective bargaining. It was alarming that regular employment in government offices was increasingly being replaced with contractual work. The Philippines had currently had almost 20 million contractual workers out of 42 million workers. Under the scheme of contractualization, a worker was hired for five months, fired, and then rehired for another five months by a subcontractor, who avoided paying social and health contributions for which regular employees were entitled. The five-month contract was known as contractualization, 5–5–5 or “endo” (end of contract). This practice violated the labour law that required employers to regularize workers after six months of continuous service and give them full benefits, such as health insurance, social security coverage and housing. The links between precarious employment and the increasing numbers of the poor in the Philippines were clear. Contractualization and agency labour had also weakened the trade union movement through the reduction of permanent workers, who were the traditional basis of trade unions. The latter were facing difficulties in organizing contractual workers, who feared losing their jobs. Labour’s bargaining power was undermined by the preference of employers to use short-term workers. Currently, less than 7 per cent of the Philippine’s total labour force was unionized, and even fewer workers were covered by collective agreements (about 228,000 workers in 2013). Attempts by the Federation of Free Workers (FFW) and other unions in the Philippines to organize contractual workers in shopping malls had failed because of strong union busting mechanisms by management. Despite such mechanisms, the Federation of Free Workers continued to organize workers to fight precarious work and the massive practice of contractualization in the country. She urged the Government to bring its law and practice into line with Convention No. 87 and to ratify Convention, No. 151.

The Worker member of Burkina Faso voiced concern at the large number of individual cases that concerned Convention No. 87 and recalled that the issues before the Conference were all based on respect for the social thermometer represented by the trade union movement and for the freedom of association and right to strike, which were its underlying features. Without them, speaking of trade unionism would be little more than an illusion. The situation in the Philippines was alarming and the Committee of Experts was to be congratulated on its work, as well as governments and employers that complied with their international commitments. In an ultraliberal world, in which the system was continually endeavouring to overturn the balance, no social gain was stable or secure. Unless they were counterbalanced by standards, power and wealth offered fertile ground for social injustice and war. He concluded with the observation that, if commitments and promises were to have any meaning, education was a fundamental factor in creating a world in which social relations were genuinely humane.

The Government representative, noting the statements and expressing appreciation of the dialogue, emphasized that, while the reforms were not complete, the bills were ready, had the support of all the social partners in the NTIPC and would be pursued by the new Congress. As to the criminal cases related to the exercise of labour rights, there was a shared will to end impunity and continue capacity-building efforts, strengthening the powers and resources of the NTIPC–MB to conduct independent reviews to assist the police and prosecutors. As to the issue of contractualization, the Government did not tolerate illegitimate contracting and subcontracting to circumvent labour laws. Pending the adoption of the three bills already prepared on the subject, the Government was strictly applying Department Order 18-A, which clarified allowable and prohibited practices, was supported by employers and workers and had led to the regularization of workers in cases of violations. The discussion encouraged the Government to keep focusing on addressing the recommendations of the 2009 High-level Mission, which had already borne results. As to the right to strike, the concerns had become practically moot as the assumption of jurisdiction had been almost discontinued, as the Government proactively facilitated conciliation between the parties to foster settlement. She noted that the incoming administration would be fully briefed on the measures taken since 2009 and the comments made to address any remaining gaps concerning the implementation of the Convention in law and practice.

The Worker members emphasized that a climate of violence, including the murder of trade union leaders, constituted a serious obstacle to the exercise of trade union rights. While monitoring mechanisms had been established to address anti-union violence, it was clear that they had been ineffective in preventing the number of trade unionists or ending impunity. The Government must redouble its efforts and, together with trade union representatives, find effective measures to protect trade unionists at risk and to ensure that investigations were undertaken to identify, prosecute and punish the perpetrators. They were deeply troubled by the various means by which workers were prevented from exercising their rights, either through exclusion in the labour laws, the use of short-term contracts or the misclassification of the employment relationship. All workers should be able to enjoy the right to organize. The Government must ensure this right in law and in practice, as well as the right to bargain collectively with the employer with whom they had an employment relationship. Violations of freedom of association in EPZs had been a serious problem for many years and, despite the regular attention brought to this matter, the situation had not improved. The Government should act without further delay to guarantee the exercise of freedom of association in EPZs. With regard to the legislative issues raised by the Committee of Experts in relation to the right to strike, including the imposition of compulsory arbitration in sectors that were not essential in the strict sense of the term and the possibility of imposing penal sanctions for participating in a peaceful strike, the Worker members recalled that no one should be imprisoned for participation in peaceful industrial action. With reference to the observations of the Committee of Experts, they urged the Government to take the necessary measures to bring to an end the impunity in relation to acts of violence against trade unionists and to institute independent investigations so as to ensure that the intellectual and material perpetrators of the crimes were arrested, tried and, if found guilty, appropriately sanctioned. Sufficient funds should be allocated and staff hired for this purpose. They further urged the Government to: take adequate measures to prevent other trade unionists from being murdered, including through protection schemes for trade unionists who were considered to be at risk by an impartial body; ensure that all workers, without distinction whatsoever, including migrant workers, those in managerial positions or with access to confidential information, firefighters, prison guards and other public sector workers, temporary and outsourced workers, as well as workers without an employment contract, could exercise their right to freedom of association; take effective measures to prohibit the intentional misclassification of employees, which deprived them of the free exercise of the right to organize; ensure that the Human Security Act was not used to suppress legitimate trade union activities; reduce the minimum membership requirement for the registration of a union, federation or confederation; allow trade unions to receive foreign financial assistance, including from an international union, without prior permission; and amend sections 263(g), 264 and 272 of the Labour Code. A direct contacts mission should visit the Philippines this year in order to follow up on these recommendations.

With regard to the right to strike, the Worker members emphasized that the Employer members had once again mis-characterized the following statement made by the Government group in February 2015: “The Government group recognizes that the right to strike is linked to freedom of association which is a fundamental principle and right at work of the ILO. The Government group specifically recognizes that without protecting a right to strike, Freedom of Association, in particular the right to organize activities for the purpose of promoting and protecting workers’ interests, cannot be fully realized”. While not an absolute right, it was not acceptable that the scope of the right was only regulated at the national level, as that would render meaningless the remainder of the statement by the Government group. As the Employer members recognized that the Committee of Experts and the Conference Committee were the twin pillars of the ILO supervisory system, the Worker members did not understand the position of the Employer members that governments had no obligation to respond to the Committee of Experts, but only to the political direction given to its report by the Conference Committee. That would render the work of the Committee of Experts meaningless. It would also lead to the wrong interpretation that the Conference Committee was superior and somehow supervised the work of the Committee of Experts. Finally, the Worker members did not understand how the observations of an independent body such as the Committee of Experts, which was entrusted with evaluating the application of the Convention by member States, could be questioned as unbalanced, when they expressed concern with the Committee of Experts when the Convention was not applied.

The Employer members took note of the comprehensive discussion of the case and indicated that there was no doubt that the issues and allegations were real. They supported the call by the Worker members for action and most of the recommendations made. They also acknowledged the Government’s statement that those issues needed to be considered, taking into account the background of each case, as no case was identical to another. Also, without denigrating the role of the Committee of Experts, they observed that the Conference Committee was the final body which based itself on the facts reported by the Committee of Experts. While the Conference Committee could not perform its work without the report of the Committee of Experts, the latter should not formulate conclusions or directions in each case, which were a matter for the Conference Committee. They concluded by stating that, in the absence of a unanimous view, the issues regarding Convention No. 87 were being taken forward in the agreed way and congratulated the Government for the measures that had been taken, inviting it to consider any technical assistance that could be offered.

Conclusions

The Government representative thanked the Committee for its comments, which were constructive and useful for assisting the Government to address the gap in the application of the Convention. She made a reservation as regards the request for a direct contacts mission, however, as she was unable to bind the incoming administration, which would assume office at the end of the month, to such a commitment.

Note 1: The NMM is a tripartite body that brings together government agencies, NGOs, civil society organizations and the independent national human rights institution (NHRI) in a credible and inclusive forum for monitoring the country’s progress on the resolution of human rights violations cases, prioritizing extrajudicial killings, enforced disappearances and torture. The NMM has been regularly conducting its meetings. At present, the CHR together with the other concerned agencies, including the DOLE, is conducting an audit or investigation into the human rights situation at Semirara Island, Caluya and Antique following the accident at the open pit coal mine of the Semirara Mining Corporation.