Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 310, Juin 1998

1. 557. The Committee already examined the substance of this case at its November 1997 meeting when it presented an interim report to the Governing Body (see 308th Report, paras. 635 to 671, approved by the Governing Body at its 270th Session (November)).
2. 558. The Government forwarded further observations on the case in communications dated 5 February and 12 March 1998.
3. 559. The Philippines has ratified both the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 560. The Telefunken Semiconductors Employees' Union (TSEU) presented allegations concerning the dismissal of approximately 1,500 TSEU officials and members who had participated in strike action and the refusal of Temic Telefunken Microelectronics (Phils.) Inc. ("TEMIC") to abide by various Orders of the Department of Labor and Employment (DOLE) to reinstate these workers in their jobs, as well as the subsequent failure of the Government to enforce the DOLE's Orders for Reinstatement. These allegations also referred to the brief detention of five TSEU members at the Taguig police station and Taguig Municipal Jail as well as to acts of violence carried against strikers by company security guards and the police.
2. 561. In its reply, the Government indicated that its Department of Labor and Employment (DOLE) sent its sheriffs on three different occasions to enforce the DOLE's Orders for Reinstatement but they were unable to do so because of TEMIC'S refusal to comply with the same. The Government also pointed out that the case was now outside the jurisdiction of the Labor Department on account of the petitions filed by the TSEU and TEMIC with the Supreme Court which had consolidated the two petitions in a resolution dated 13 January 1997. The Supreme Court had not, to date, promulgated a decision on the case.
3. 562. At its November 1997 session, in the light of the Committee's interim conclusions, the Governing Body approved the following recommendations:
4. a. The Committee urges the Government to ensure that the 1,500 or so leaders and members of the Telefunken Semiconductors Employees' Union (TSEU) who were dismissed further to their participation in strike action from 14 to 16 September 1995 are reinstated immediately in their jobs under the same terms and conditions prevailing prior to the strike with compensation for lost wages and benefits, in conformity with the Orders for Reinstatement issued by the Government's Department of Labor and Employment (DOLE). The Committee requests the Government to keep it informed of any developments in this regard.
5. b. Noting that the Supreme Court has consolidated the two petitions filed by the union and the company in a resolution dated 13 January 1997, the Committee requests the Government to keep it informed of the outcome of the Court's decision on this case.
6. c. The Committee requests the Government to provide its observations on the allegation that five TSEU members were detained on 23 September 1995 at the Taguig police station and later at the Taguig Municipal Jail.
7. d. The Committee further requests the Government to keep it informed of the outcome of the investigation by the Philippine National Police into acts of violence allegedly carried out by the Taguig policemen against TSEU members who were picketing on 20 and 21 October 1995.
8. B. The Government's reply
9. 563. In a communication dated 5 February 1998, the Government states that the Supreme Court issued a "Notice of Judgement" on 12 December 1997 on two petitions brought before it by the TSEU and TEMIC, respectively. The Government points out that in its decision the Court granted the TSEU's petition and ordered the immediate reinstatement, without exception, of all striking workers of the TSEU. On the other hand, the Court dismissed TEMIC's petition for lack of merit. The Court directed the Secretary of Labor and Employment to ensure the effective enforcement of the Writ of Execution issued by the Secretary on 27 June 1996 and to determine, with dispatch, the legality of the strike and liability of the individual strikers, if any. Finally, the Government indicates that in its decision, the Court warned union members that a repetition of the hunger strike or any similar mass demonstrations, within or about its premises, in an effort to influence the outcome of its future decisions, would be dealt with severely ( a copy of the Court's decision has been annexed to the Government's reply).
10. 564. The Government states that, pursuant to this Supreme Court decision of 12 December 1997, its Department of Labor and Employment (DOLE) issued Order No. 32 on 15 December 19997 creating a Task Force that would take affirmative action on said decision. The Government points out, however, that all action being taken by the members of t his Task Force are, for the time being, only anticipatory, in view of the possibility that the decision of 12 December 1997 will be upheld by the Court in its final judgement. In this respect, the Government states that the Supreme Court decision is not yet final and executory as both parties are still entitled to one last motion, after which, the Court will finally make an "Entry of Judgement". Once the Court has promulgated a final decision, the records of the case will be returned to the court of origin for implementation.
11. 565. The Government indicates that on 2 January 1998, TEMIC filed a "Motion for Reconsideration" pleading the Court to reconsider and set aside its 12 December 1997 decision and render judgement: (a) dismissing the union's petition; (b) setting aside the Writ of Execution dated 27 June 1996 and Order dated 21 November 196; (c) finding the union officers and members, who defied the DOLE Secretary's Assumption Order of 8 September 1995 and Return-to-Work Order of 16 September 1995, to have lost their employment status for having knowingly participated in an illegal act; and (d) finding that the Secretary of Labor and Employment has the discretion to exclude certain employees from the coverage of the Return-to-Work Order.
12. 566. The Government adds that subsequently, the TSEU filed a "Motion for Clarification" on 3 January 1998. The motion seeks for a Clarificatory Order/Resolution issued to the effect that, under the 12 December 1997 decision, TEMIC shall be liable for the payment of back wages to 1,500 illegally dismissed workers including union members. The payment of said back wages shall be reckoned from the finality of the 27 October 1995 Order. The Government concludes by stating that to date the DOLE is still awaiting the Court's action on both motions.
13. 567. In its communication dated 12 March 1998, the Government provides its observations in respect of the allegation that five TSEU members were detained on 23 September 1995 at the Taguig police station and later at the Taguig Municipal Jail and subsequently released on 26 September 1995. The Government confirms that five striking TSEU members were arrested by the Taguig Police on 23 September 1995 and turned over to the Station Investigation Office based on complaints of brief illegal detention and grave coercion filed against them by two company managers. In effect, these two TEMIC managers alleged in their complaint to the police that on 14 September 1995, the above five TSEU members together with TSEU officers and 250 other strikers who were all employees of TEMIC staged a strike against the company. On 18 September 1995, the DOLE issued an Order of Free Ingress/Egress to non-striking employees. As a result, on 22 September 1995, the above-mentioned strikers padlocked the gate of the TEMIC company and later set up a human barricade of the TEMIC gates, thus preventing the two managers from leaving the company building despite appeals to let them go. The Government adds that on 25 September 1995, the pertinent documents concerning the charges filed by the two TEMIC managers were endorsed to the Rizal Provincial Prosecutor's Office, Pasig City, for inquest. However, in a resolution dated 17 July 1996, the Office of the Pasig City Prosecutor dismissed the charges against said TSEU personalities for insufficiency of evidence (a copy of this resolution is attached to the Government's reply).
14. 568. Regarding the acts of violence allegedly carried out by Taguig policemen against striking TSEU members on 21 October 1995, the Government indicates that the Taguig Police Station informed it that the presence of said policemen in the vicinity at that time was only for purposes of enforcing the law and maintaining peace and order in the area. Moreover, it was the company security guards and hired goons who had started the violence against the strikers.

C. The Committee's conclusions

1. 569. The Committee recalls that the allegations in this case concerned the dismissal of approximately 1,500 officials and members of the Telefunken Semiconductors' Employees' Union (TSEU) who had participated in strike action and the refusal of Temic Telefunken Microelectronics (Phils.) Inc. ("TEMIC") to abide by various Orders of the Department of Labor and Employment (DOLE) to reinstate these workers in their jobs, as well as the subsequent failure of the Government to enforce the DOLE's Orders for Reinstatement. These allegations also referred to the detention of five union members and to acts of violence carried out against strikers by company security guards as well as the police.
2. 570. As regards the alleged dismissal of around 1,500 TSEU members further to their participation in strike action as well as the refusal of TEMIC to abide by the DOLE's various Orders for Reinstatement, the Committee notes that in a decision handed down on 12 December 1997, the Supreme Court granted the TSEU's petition but dismissed that of TEMIC for lack of merit. The Committee notes with interest that in its decision, the Court ordered the immediate reinstatement, without exception, of all striking workers of the TSEU. The Committee would recall that during its previous examination of this case, it had urged the Government to ensure that these 1,500 TSEU leaders and members who were dismissed further to their participation in strike action were reinstated immediately in their jobs under the same terms and conditions prevailing prior to the strike with compensation for lost wages and benefits, in conformity with DOLE's Orders for Reinstatement (see 308th Report of the Committee, para. 668). The Committee also notes that pursuant to the Supreme Court decision of 12 December 1997, the DOLE issued Order No. 31 on 15 December 1997 creating a Task Force that would take affirmative action on said decision. Nevertheless the Supreme Court decision is not yet final and executory since on 2 January 1998, TEMIC filed a "Motion for Reconsideration" requesting the Court to reconsider and set aside its 12 December 1997 decision. Moreover, on 3 January 1998, the TSEU filed a motion seeking a Clarificatory Resolution to the effect that, under the 12 December 1997 decision, TEMIC shall be liable for the payment of back wages to the 1,500 illegally dismissed workers including union members. Once the Court has promulgated a final decision on both motions, the records of the case will be returned to the court of origin for implementation.
3. 571. In this respect, the Committee profoundly regrets that over two years have elapsed since the first Order for Reinstatement of the above-mentioned 1,500 TSEU leaders and members was issued (27 October 1995). The Committee is therefore bound to remind the Government that it is responsible for preventing all acts of anti-union discrimination and that cases concerning anti-union discrimination should be examined rapidly, so that the necessary remedies can be really effective. An excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders and members dismissed by the enterprise, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 738 and 749). The Committee therefore urges the Government to guarantee expeditious and effective protection against acts of anti-union discrimination. The Committee further notes that in its decision of 12 December 1997, the Supreme Court itself has ruled that since it did not issue any Temporary Restraining Order, there is therefore no legal impediment to the enforcement of the Writ of Execution and Alias Writ of Execution previously issued by the DOLE. The Committee observes that in this decision, the Supreme Court goes on to say:
4. ... it is elementary that the mere pendency of a special civil action for certiorari, commenced in relation to a case pending before a lower court, does not even interrupt the course of the latter when there is no writ of injunction restraining it. The inevitable conclusion is that for as long as no writ of injunction or restraining order is issued in the special civil action for certiorari, no impediment exists and there is nothing to prevent the lower court from exercising its jurisdiction and proceeding with the case before it ....
5. 572. In view of what has been enunciated in the preceding paragraph and of the fact that some considerable time may elapse before the Supreme Court hands down a final decision in this case, the Committee would once again urge the Government to ensure that the 1,500 or so TSEU leaders and members who were dismissed further to their participation in strike action are reinstated immediately in their jobs under the same terms and conditions prevailing prior to the strike with compensation for lost wages and benefits, in conformity with the DOLE's Orders for Reinstatement. The Committee requests the Government to keep it informed of any developments in this regard. Noting moreover that TEMIC and the TSEU have filed two further motions before the Supreme Court on 2 and 3 January 1998, respectively, the Committee requests the Government to keep it informed of the outcome of the Supreme Court's final decision on this case.
6. 573. The Committee notes the Government's confirmation of the allegation that five TSEU members were detained on 23 September 1995 by the Taguig police although they were subsequently released on 26 September 1995. Charges of brief illegal detention and grave coercion were filed by two TEMIC managers who alleged in their complaint that during the course of the strike, the five TSEU members (along with other striking TEMIC employees) had prevented them from leaving the company building. The Committee notes however that a resolution was issued by the Office of the Pasig City Prosecutor on 17 July 1996 dismissing the charges against said TSEU members for insufficiency of evidence. In effect, the Committee notes that the three senior prosecutors of the Pasig City Prosecutor's Office who signed this resolution dismissed the charges for the following reasons:
7. ...
8. Evaluating the evidence, there exists no prima facie basis to warrant the indictment of the respondents for the offense as charged ... such conduct of the striking employees, including all the respondents, cannot be made a basis for a finding of a probable cause that the crime in question was committed because the detention or deprivation of liberty of the complaints under the circumstances, while certainly not to be justified, was not done with criminal intent. To hold otherwise would be to nullify the constitutional policy of social justice and protection to labor and to hold the Revised Penal Code in effect as a veritable sword of Damocles upon labor.
9. By parity of reasoning, the charge of grave coercion finds no application under the circumstances. Complainants failed to substantiate with reasonable certainty the basic element of grave coercion -- violence. The evidence, thus adduced, shows that no force or violence was employed by the respondents upon the complainant when the respondents exercised their constitutional and legal right to strike. Consequently, respondents cannot be held liable for the crime of grave coercion.
10. Wherefore, it is resolved that the charges against the respondents be dismissed for insufficiency of evidence.
11. The Committee takes due note of the above information and would once again draw the Government's attention to the principle that the arrest and detention, even if only briefly, of trade unionists on the grounds of trade union activities constitute a serious obstacle to the exercise of trade union rights and an infringement of freedom of association (see Digest, op. cit., paras. 70 and 75). The Committee would therefore request the Government to take steps to ensure in future that the authorities concerned receive appropriate instructions so as to secure respect of this fundamental principle.
12. 574. With regard to the allegation that on 20 October 1995, during a union meeting at the picket line, company security guards and hired goons sprayed tear-gas and water at the strikers who were also stoned, and that on 21 October 1995 the union's picket line was ransacked by company security guards assisted by Taguig policemen, the Committee notes that according to the Government, the presence of said policemen in the vicinity at the time was only for purposes of maintaining peace and order in the area and that it was the company security guards and hired goons who started the violence against the strikers. In this respect, the Committee wishes to recall that the rights of workers' organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of unions, and it is for governments to ensure that this principle is respected (see Digest, op. cit. para. 47). During its previous examinations of this case, the Committee had noted that the union had requested the Philippine National Police to investigate the incident; the Committee had therefore requested the Government to keep it informed of the outcome of this investigation (see 308th Report of the Committee, para. 669). The Committee notes with regret that the Government has not reported on any progress made by the police in shedding any light on this serious incident. Noting the Government's observation that company security guards and hired goons had started the violence against the strikers, the Committee would request the Government to institute without delay an independent judicial inquiry into the acts of violence carried out against TSEU members who were picketing on 20 and 21 October 1995, so as to identify and punish the guilty parties. It requests the Government to keep it informed of the outcome thereof.