Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 292, Mars 1994

1. 313. The Committee has already examined this case at its May 1992 meeting, when it presented an interim report to the Governing Body (see 283rd Report of the Committee, paras. 401 to 421, approved by the Governing Body at its 253rd Session (May-June 1992)). The IFBWW submitted new allegations in a communication of 8 October 1992, and sent additional information in a letter dated 29 January 1993.
2. 314. At its November 1993 meeting (see 291st Report, para. 12), the Committee noted that despite the time which had elapsed since it had last examined the case, it had not received the observations and information it had requested from the Government. The Committee drew the attention of the Government to the fact that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, it could present a report on the substance of the case, even if the observations or information requested from the Government had not been received in due time. Since that urgent appeal, the Government sent a partial reply on 3 March 1994.
3. 315. The Philippines has ratified the Freedom of Association and the Protection of the Right to Organize Convention, 1948 (No. 87), as well as the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 316. The allegations which remained pending after the Committee's May 1992 meeting concerned the following questions: the right of temporary workers to join a trade union of their choice, and the specific case of workers dismissed by a private enterprise, the Algon enterprise, which justified these dismissals by reference to Policy Instruction No. 20 of 1977, which required the establishment of a bargaining unit at branch level.
2. 317. At that meeting, the Committee had formulated the following recommendations (see 283rd Report of the Committee, para. 421):
   • (a) The Committee recalls that workers without distinction whatsoever, be they employed on a permanent basis or for a fixed term, should have the right to establish and join organizations of their own choosing.
   • (b) The Committee invites the Government to take measures in order expressly to repeal Policy Instruction No. 20 in its entirety, and to provide it with the relevant text.
   • (c) The Committee requests the Government to provide the judgement of the Supreme Court in the Algon case as soon as it is issued.

B. The complainant organization's new allegations

1. 318. In its communication of 8 October 1992 the IFBWW states that on 9 September 1992 the Supreme Court dismissed the petition and motion for reconsideration filed by the Algon enterprise trade union against a decision dated 4 October 1989 by the National Labor Relations Commission (NLRC), which had ruled that a strike to protest Algon's dismissal of some workers (Algon had invoked the provisions of Policy Instruction No. 20 to justify these dismissals) was illegal, because the trade union had not given notice of at least seven days before the strike was conducted, and that the NLRC itself was conducting an investigation into charges of unfair labour practices at the time of the strike. The trade union's appeal before the Supreme Court argued that the strike was in fact legal since the employer's tactics amounted to an unfair labour practice, and that the NLRC decision of 31 December 1989, according to which five of the employees terminated were not project employees, and that their termination was therefore illegal, should apply to all workers who participated in the strike, since the Minister of Labor had declared that Policy Instruction No. 20 was irrelevant and that all workers at projects should have equal rights to participate in trade union activities.
2. 319. The IFBWW states that as a result of this Supreme Court ruling, the trade union and its members will be made to pay damages amounting to 3,232,128.32 pesos, which could result in the confiscation of all of the union's assets, as well as the personal property of trade union officials. According to the complainant organization, the Court's decision is based on Policy Instruction No. 20; this is at odds with a recent government statement to the effect that this Policy Instruction has been superseded by new legislation and is contrary to the provisions of Conventions Nos. 87 and 98. The IFBWW considers that the Court's ruling could cause the potential ruin of the trade unions in the construction industry.
3. 320. In its communication of 29 January 1993 the IFBWW states that on 23 November 1992 the Supreme Court dismissed the trade union's second motion for reconsideration of the 9 September 1992 decision.

C. Partial reply of the Government

1. 321. In its reply of 3 March 1994, the Government reiterates that Policy Instruction No. 20 has long been rendered ineffective and that the Department of Labor and Employment has recently adopted new guidelines to govern the building industry, which include, amongst others, provisions which guarantee the right to organize and to bargain collectively to the workers of this branch.
2. 322. As regards the case of the workers dismissed by the Algon enterprise, the Government indicates that the facts demonstrate that both parties were given their day in court, and adds that the decision of the National Labor Relations Commission (NLRC) was without question based on the law and antecedent facts. The fact that one party considers that decision to be flawed does not necessarily mean that the Government has been undertaking an all-out effort to undermine the rights of workers and trade unions. Indeed, the case was referred to the Supreme Court, which would not have been possible under the "regime of repression" that the complainant organization would like the Committee to believe.

D. The Committee's conclusions

1. 323. The Committee regrets that in spite of the time elapsed since the case was last examined, and although it was invited on several occasions to provide complete information, including by means of an urgent appeal, the Government communicated only partial information.
2. 324. In these conditions, and according to the applicable procedural rules (see para. 17 of the Committee's 127th Report, approved by the Governing Body at its 184th Session), the Committee is obliged to present a report on the substance of the case even though it has not received all the information requested from the Government.
3. 325. The Committee first of all reminds the Government that the purpose of the whole procedure set up in the ILO for the examination of allegations of violations of freedom of association is to promote respect for trade union rights in law and in fact. If the procedure protects governments against unreasonable accusations, governments on their side should recognize the importance for their own reputation of formulating, so as to allow objective examination, detailed replies to the allegations brought against them. (See the Committee's First Report, para. 31.)
4. 326. The Committee notes with regret that, in spite of the recommendations it had formulated at its May 1992 meeting, it appears that Policy Instruction No. 20 has not been repealed expressly and in its entirety. It also notes that, according to the complainant organization, in September and November 1993 the Supreme Court invoked this Policy Instruction to dismiss the trade union's first and second motions for reconsideration to have the strike declared legal and to have dismissed workers reinstated. The Committee recalls that the strike in question had been called to protest the dismissal of a group of workers who had joined the enterprise trade union to set up a bargaining unit at enterprise level, while Policy Instruction No. 20 stipulated that project workers were not authorized to set up bargaining units at that level.
5. 327. Moreover, it would appear to the Committee that, although the Government reiterated in its last reply that this Policy Instruction is no longer in effect, it did indeed serve as a legal basis to justify the unfair dismissals of workers in the construction sector. In these conditions, the Committee can only recall that workers without distinction whatsoever, be they employed on a permanent basis or for a fixed term, should have the right to establish and join organizations of their own choosing and requests the Government to take measures to guarantee that the legislation ensures that this principle is respected.
6. 328. The Committee also emphasizes that the right to bargain collectively in full freedom of all wage-earners not covered by the guarantees embodied in the statutory conditions applicable to public officials is a fundamental trade union right and an essential element in freedom of association (see Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, paras. 581 and 583). In the Committee's opinion, Policy Instruction No. 20 interferes with the freedom of association and the right to collective bargaining of fixed-term project workers, inasmuch as it prevents them from organizing at enterprise level with a view to setting up a bargaining unit, andby authorizing them only to join the recognized trade union in the constructionsector allows them only the opportunity to bargain at sectoral level.
7. 329. Noting that, according to the Government, the Department of Labor and Employment has recently adopted new guidelines to govern the building industry, which include provisions guaranteeing the right to organize and to bargain collectively to the workers of this branch (contrary to the Government's statement, a copy of said guidelines was not attached to its reply), the Committee requests the Government once again to take the necessary measures formally to repeal Policy Instruction No. 20. It also request the Government to provide it with the text which repeals this Instruction, and a copy of the new guidelines mentioned above.
8. 330. As regards the specific case of workers dismissed by the Algon enterprise, the Committee regrets that it does not have the text of the judgements handed down by the Supreme Court in this case. Nevertheless, noting that these judgements concern the central issue of whether the strike called by workers was legal, the Committee considers that no strike can be declared illegal unless it is called in violation of restrictions or prohibitions which themselves are consistent with the principles of freedom of association.
9. 331. In this respect, the Committee regrets that the Government only stated that, in its opinion, the decision of the National Labor Relations Commission (NLRC) was without question based on the law and antecedent facts and that the fact that one party considers that decision to be flawed does not necessarily mean that the Government has been undertaking an all-out effort to undermine the rights of workers and trade unions. The Committee therefore requests the Government to undertake an impartial inquiry into the events which took place within the Algon enterprise and, in the event it is proved that the dismissal of temporary workers (which led the enterprise trade union to conduct a strike) was motivated by the efforts of the workers concerned to set up a bargaining unit within the enterprise, that the necessary measures be taken by the competent body to ensure that they are paid appropriate indemnity. It requests the Government to keep it informed in this connection.