Rapport intérimaire - Rapport No. 360, Juin 2011

1. 1030. The complaint is contained in a communication of the Kilusang Mayo Uno (KMU) dated 30 September 2009.
2. 1031. As the Government had not replied at its meeting in May–June 2010, the Committee was obliged to postpone its examination of this case and addressed an urgent appeal for its comments and indicated that even in the absence of these observations, it would present a report at its next meeting on the substance of this case. The Government submitted partial observations in a communication dated 15 November 2010. The Committee launched again an urgent appeal in March 2011 for the Government’s complete observations. To date, no further information has been received.
3. 1032. The Philippines has ratified the Freedom of Association and Protection of 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. The complainant’s allegations

1. 1033. The complainant alleges that in the export processing zones (EPZs), an unofficial “no union, no strike” policy exists and is implemented with vigour by the Philippines Export Processing Zones Authority (PEZA) in collusion with local and national government agencies. Moreover, the Government’s policy to provide an environment that is attractive and conducive to foreign investment leads to the systematic denial of trade union rights in the EPZs and industrial enclaves; extreme exploitative conditions also exist as low wages, back-breaking jobs, long hours of work, non-payment of overtime and other benefits, and repressive practices. The EPZs implement their own rules, operating like a separate entity excluded from Philippine labour laws, and the Department of Labor and Employment (DOLE) does not enforce the labour legislation in the EPZs. Elements of the anti-union policy include: illegal dismissal of trade unionists; restrictive union registration processes; the closure of companies to obstruct union formation and collective bargaining; interference by local government authorities in union affairs; and violation of civil liberties – including assaults, threats, intimidation, harassment, blacklisting, criminalization, abduction and murder of trade unionists.
2. 1034. Very few have succeeded in establishing a union inside the EPZs and enclaves. Even with a union, they still face obstacles in negotiating with management. Companies refuse to recognize unions, let alone negotiate with them for a collective bargaining agreement. In many cases, companies resort to closures either of the whole company or of strategic departments where most unionists are located, downsize their operation and retrench union leaders and active members. In some cases, employers have resorted to putting up their own “sweetheart” or company unions in order to avoid independent and progressive unions.
3. 1035. When unions have successfully organized, union leaders and members have been harassed, intimidated and violently attacked by EPZ security, police, and paramilitary groups. Unions have been busted through the illegal dismissal and closure of companies.
4. 1036. On several occasions, when workers voted to go on strike, the Secretary of Labor issued “assumption of jurisdiction” and “return to work” orders. In the case of the Aichi Forging Company Employees Union-1-Independent, one of the reasons given for the issuance of the assumption of jurisdiction was: “As the company is located in an economic zone, the work stoppage may also undermine the Government’s efforts to promote and encourage foreign and local investments in order to generate employment and spur economic development”.
5. 1037. Collective actions, such as strikes and picket protests, are often met with brutal dispersal. The EPZ authorities and security impose food blockades to paralyse strikes and deny them support mechanisms ultimately leading to the defeat of the strikes.
6. 1038. In Cavite province, where the nation’s largest EPZs are found, the father and son team of Governor Maliksi and Mayor Maliksi have actively and openly collaborated with the Philippine National Police (PNP) and EPZ companies in ensuring the “no union, no strike” policy is effectively enforced. Workers, before they can be employed in the EPZs, must attend forums on the “evils of militant trade unionism” and Maliksi openly campaigned for the Mayoral office by promising companies they would remain “militant union and strike free”. Leaders from affiliate unions of the KMU have been vilified as terrorists and the national government has filed criminal charges against them alleging they are members of the New People’s army in far away islands.
7. 1039. These schemes are intended to not only hamper union organizing and intimidate workers into not joining unions, but to keep the EPZs and enclaves union free particularly from those that are progressive, militant, independent and nationalist in orientation.
8. 1040. Though unwritten, the existence of the “no union, no strike” policy in the EPZs and industrial enclaves is common knowledge. This policy was developed in the Southern Tagalog region and is being perfected by the combination of repressive political and industrial climate involving government machineries from national to village level under the pretext of maintaining industrial peace and protection of foreign investments and economy. In the Mactan Export Processing Zone (MEPZ) in Cebu, the “no union, no strike” policy has so far been successful in preventing the formation of any unions within the MEPZ.
9. 1041. The complainant then goes on to make the following specific complaints. This “no union, no strike” policy, specifically violating Conventions Nos 87 and 98, is implemented through several forms. The complainant alleges the following.
   • Alleged obstacles to the effective exercise in practice of trade-union rights and the “no union, no strike” policy
   • Illegal dismissals
     • - Sun Ever Lights Labor Union-Independent (SELLUI). The Japanese-owned electronics company, in affirmation of the decision issued by the National Labor Relations Commission (NLRC), fired 170 union members.
     • - Workers Union of Daiho Philippines Incorporated-Independent (WUDPI-Independent). Daiho management simultaneously terminated 106 workers in both its factories in Laguna Technopark and Lima technology in Batangas on 19 February 2009.
     • - Samahang Manggagawa ng Enkei (SME). The Japanese company Enkei Philippines terminated 47 of its employees who attended the union’s general membership meeting on 19 June 2006.
     • - Aniban ng Manggagawang Inaapi sa Hanjin Garments-Independent (AMIHAN-Independent). In successive waves, more than 200 workers were illegally dismissed in the process of union formation.
     • - Golden Will Fashion Phils. Workers’ Organization-Independent (GWFPWO-Independent). The company dismissed all remaining 103 union members effective 15 August 2009 due to a dubious retrenchment policy.
     • - Tunay na Pagkakaisa ng Manggagawa sa Asia Brewery Incorporated-Independent (TPMA-Independent). The company dismissed 31 union officers and members in the process of union recognition.
     • - Nagkakaisang Manggagawa sa Chong Won (NMCW-Independent). The Korean-owned garments factory illegally dismissed 116 workers.
     • - Anita’s Home Bakeshop Workers Union, an affiliate of the Alliance of Nationalist Genuine and Labor Organization (ANGLO-KMU). A total of 33 workers were illegally dismissed, including 11 union officers.
   • Company closure
     • - Sensuous Lingerie Unified Labor Organization (SULO-Independent). The company declared closure in the middle of negotiations for a collective bargaining agreement.
     • - GWFPWO-Independent. The Chinese-owned company announced a six-month vacation followed by closure amidst collective bargaining negotiations while engaged in an illegal operation.
     • - NMCW-Independent. The company closed down operations in May 2007 during the workers’ strike.
     • - When the Goldilocks Ant-Bel Workers Association was registered on 1 November 2008, management responded the next month with the illegal closure of the unionized branch.
   • Restrictive processes in union registration and recognition
     • - WUDPI-Independent. The DOLE Region IV-A cancelled the union’s registration.
     • Non-implementation of Labor Department and court decisions
     • - SELLUI. The Sun Ever Lights management refuses to implement the reinstatement order issued by the NLRC, dated 14 July 2008.
     • - SME. The Commissioner of the Third Division of the NLRC issued an order reinstating 47 workers to employment with full back wages, dated 29 May 2007.
   • Interference of local government units (LGUs) with union affairs
     • - SELLUI. The PEZA and municipal government sent units of the PNP to intimidate and disperse workers’ protest actions from 30 November to 1 December 2004.
     • - Nagkakaisang Manggagawa sa Hoffen Industries-OLALIA (NMHI-OLALIA-KMU). Local government officials at different levels tried convincing workers to stop the union organizing in the factory in favour of business.
     • - AMIHAN-Independent. The municipal government ordered the PNP to enforce a food blockade and intimidation and dispersal of workers on strike.
     • - Samahan ng Manggagawa sa Mariwasa Siam Ceramics, Inc.-Independent
   • (SMMSCI-Independent). Local village officers convinced union members to withdraw support from the union.
     • - GWFPWO-Independent. Right after the union was registered with the DOLE, local government officials came to the factory and campaigned against union organizing and pushed for a labour management council (LMC) instead.
     • - Samahan ng Manggagawa sa EDS Mfg, Inc.-Independent (SM-Emi-Ind). Corrupt former leaders in the union were used by the Office of the Provincial Governor (OPG) and specifically by the Remulla clan, a political dynasty in Cavite. This resulted in serious corruption of union funds. When a new set of union leaders and members tried to rebuild the union, their efforts were mauled by OPG and its controlled union leaders. In 2002, the intra-union dispute began which later became an inter-union dispute.
   • Assumption of jurisdiction orders denying the right to strike
     • - Aichi Forging Company Employees Union-1-Independent (AFCEUI-1 Independent). The Secretary of Labour issued an assumption of jurisdiction order on the union’s notices of strike on the grounds of the collective bargaining agreement (CBA) deadlock and unfair labour practice.
     • - TPMA-Independent and Pag-asa at PIMA-Independent. The DOLE issued three assumption of jurisdiction orders on 23 December 2003, 1 October 2004 and 6 February 2009.
   • Alleged attacks to life and liberty, illegal arrest and detention, harassment, intimidation, criminalization and killings in relation to freedom of association
   • Assault against picket lines and union collective actions
     • - SELLUI. Elements of the Special Warfare Action Group (SWAG) of the PNP, along with the Emirates security guards, the Regional Special Action Force-PNP, and the PNP-Binan dispersed the peaceful protest of women workers.
     • - AMIHAN-Independent. DOLE dispersal. Elements of the PNP dispersed workers from PAMANTIK (Solidarity of Workers in Southern Tagalog-KMU) peacefully aired their grievances to the DOLE on the night of 6 March 2008, resulting in the death of one protester due to internal haemorrhage a month later.
     • - PIMA-Independent. On 4 February 2009, the strike of Asia Brewery workers was violently dispersed by PNP led by PNP Cabuyao Chief Moises Pagaduan.
   • Threat, intimidation and harassment
     • - SELLUI. Elements of the SWAG of the PNP man the production lines to monitor the activities of union members.
     • - SMMSCI-Independent. Members of the Philippine National Police Provincial Mobile Group (PNP-PMG) were stationed inside production lines and the whole factory compound during the process of petition for certification election (PCE).
     • - Kaisahan ng mga Manggagawa sa Phils. Jeon-Independent (KMPJ-Independent). The assault and abduction of the union president and shop steward from the picket line.
     • - SULO-Independent. Two busloads of about 100 elements of the PNP of Calamba City, Laguna prevented workers from participating in strike voting on 16 May 2008.
     • - AFCEUI-l Independent. The management tripled the size of its security forces and deployed intelligence operatives while negotiations for the CBA were occurring.
   • Abduction
     • - Normelita Galon and Aurora Afable, President and Shop Steward of KMPJ-Independent, respectively. Both were gagged, blindfolded, and forcibly taken from their picket line by armed elements allegedly upon orders of the management and PEZA. They were thrown in a muddy area outside the Cavite Export Processing Zone eventually pressuring the workers to call off the strike.
   • Blacklisting, vilification of union members as terrorists
     • - WUDPI-Independent. The names and enlarged pictures of employees were posted on entrance gates of EPZs the day after they were dismissed from their jobs, barring them from entry and restricting them from seeking employment in other companies in the EPZs.
     • - Photos of 30 members of the ANGLO-KMU were posted on the company bulletin board. They were labelled as “a terrorist group”.
   • Criminalization
     • - PAMANTIK-KMU Chairman Romeo Legaspi and other officers charged with attempted murder, multiple murders and multiple frustrated murders in various courts.
   • - 6 March 2008. Dispersal of workers in front of the DOLE. Five injured protesters detained and accused of false charges.
     • - Christopher Capistrano, union Vice-President of Hanjin Garments, charged with criminal cases before the Binan Regional Trial Court.
     • - Ricardo Cahanap, union Vice-President of Phils. Jeon, and 33 union leaders of Chong Won and Phils. Jeon workers’ union charged with direct assault and grave coercion.
     • - GWFPWO-Independent. Twenty-five union officers and members charged with qualified theft.
     • - Declard Cangmaong, arrested and detained without warrant on charges of “multiple murder with quadruple frustrated murder and damage to government property” by elements of the Philippine army (PA) and the Criminal Investigation and Detection Group (CIDG) on 21 September 2009.
   • Militarization
     • - SELLUI. Fully armed elements of the SWAG of the PNP-manned union officers and members in the company production lines. On another occasion, from 30 November to 1 December 2004, elements of the Laguna Industrial Peace Police Action Group (LIPPAG) of the PNP enforced the dispersal of women workers.
   • Killings
     • - Gerardo “Gerry” Cristobal and Jesus “Butch” Servida, former union Presidents of SM-Emi-Independent in Cavite, were killed respectively on 10 March 2008 and 11 December 2006.

B. The Government’s reply

1. 1042. In its communication dated 15 November 2010, the Government requested the Committee to postpone the examination of the case so as to allow the Tripartite Industrial Peace Council (TIPC), constituted pursuant to the recommendation of the ILO High-level Mission, to do its work with respect to the issues raised in this case.
2. 1043. The Government further indicates that pursuant to the operational guidelines of the TIPC Monitoring Body, the employers’ and workers’ organizations, parties to the complaint, and concerned government agencies were furnished with copies of the complaint. In this regard, letters dated 5 May 2010 were sent to the managements concerned requesting information/comments on the allegations presented in the said KMU complaint. Another letter request, dated 8 October 2010, was sent to those who failed to provide the requested information/comments. The Government further indicates that the comments would be consolidated towards the end of 2010 for case profiling by the Inter-Agency Small Group and for discussion in the Tripartite Executive Committee of the Monitoring Body prior to submission for deliberation by the members of the TIPC Monitoring Body in the first quarter of 2011. The Government attached a matrix showing the information/comments initially gathered from the addressees, as well as information provided by competent bodies such as the Commission on Human Rights (CHR) and PEZA. This detailed information is attached herewith as an appendix.
3. 1044. In its communication, the Government further indicates that actions have been taken in key areas of concern, notably addressing the issue of impunity and exploring “out of the box” solutions to long-standing cases and that a legislative reform to further strengthen trade unionism and remove obstacles to the effective exercise of labour rights has been progressing as committed by the Government in response to the ILO High-level Mission in October 2009.
4. 1045. There are two pending draft bills before the national TIPC. The first bill seeks to amend article 263(g) of the Labor Code which authorizes the Secretary of Labor (and the President) to assume jurisdiction over labour disputes imbued with national interest. It limits the assumption of jurisdiction to the ILO’s concept of “essential services” and removes the criminal sanction for mere participation in an illegal strike on grounds of non-compliance with the administrative requirements. The second bill incorporates amendments that further liberalize the exercise of trade union rights by relaxing the requirements for registration of independent unions and federations. It repeals the requirements of prior authorization for receipt of foreign assistance. These two draft bills are undergoing tripartite consultation. The bill on the exercise of trade union rights has been approved by the Tripartite Executive Committee for plenary discussion in the TIPC. With respect to the draft bill amending articles 263(g), 264 and 272, no consensus has been found so far. The two draft bills are eyed to be filed with the appropriate committees of both Houses of the 15th Congress by the first quarter of 2011, as soon as tripartite consensus is reached. The DOLE is looking at the early part of 2011, in the first quarter, to start the labour law drafting and creation of the small tripartite-plus committee.
5. 1046. Meanwhile, Department Order No. 40-G-Q3, amending Department Order No. 40, series of 2003, was approved by the TIPC and issued on 29 March 2010. It became effective on 26 April 2010, providing a guideline in the exercise of the assumption of juridical power of the Secretary of Labor, contemplated in article 263(g) of the Labor Code, as amended. A copy of the Department Order No. 40-G-Q3 was provided by the Government.
6. 1047. In addition, the directive that was given to the DOLE, alongside the directive to “promote not only the constitutionally protected rights of workers but also their right to participate in the policy-making process” is, together with the NLRC, to “reform the labour arbitration and adjudication systems by streamlining procedures, removing red tape, and at the same time, restore integrity and fairness in the system. Ensure that 98 per cent of all pending labour cases are disposed of with quality decisions by April 2011”. A copy of the 22-point labour and employment agenda of President Aquino was provided by the Government. In this regard, the DOLE is implementing a package of reforms in the labour arbitration and adjudication system. The approach is two-pronged. The first approach consists of reforms in the existing system by ensuring transparency, efficiency and integrity in the labour dispute settlement system, and the second approach consists of reforms intended to transform the traditional American-based conflictual and litigious labour relations system towards one that is reflective of the Asian and Philippine culture of consensus building. Under the second approach, the major reform is the de-judicialization of the labour dispute settlement system through alternative dispute resolution (ADR) using a 30-day mandatory conciliation mediation of all labour cases DOLE-wide. Department Order No. 107-10 has been issued, a copy of which was provided by the Government and became effective on 26 October 2010. Industry-based conciliation mediation through the industry tripartite councils at the national and local levels is also being developed. At the heart of de-judicialization is the promotion of inclusive tripartism and social dialogue through the reconstitution of the TIPCs at the national and regional levels. The Bukluran ng Manggagawang Filipino (BMP) and the KMU have already conveyed interest in participating in the NTIPC and in the TIPC Monitoring Body. The strengthening/reactivation or creation of industry tripartite councils nationwide towards industry self-regulation, governed by industry voluntary codes of good labour management practices, is also being undertaken. The package of reforms has the support of the sectors as expressed in national TIPC Resolution No. 3, Series of 2010, a copy of which was transmitted by the Government.
7. 1048. Finally, the Government indicates that the revised DOLE–PNP–PEZA guidelines on the conduct of PNP personnel, economic zone police and security guards, company security guards and similar personnel during labour disputes, a copy of which was transmitted by the Government, is nearing completion and that it is expected to be signed anytime before the end of 2010 as tripartite consultations have already been undertaken.

C. The Committee’s conclusions

1. 1049. The Committee notes that the present case concerns allegations of the denial of the right to organize, strike and collective bargaining in the Philippines EPZs, special economic zones, industrial enclaves and related areas due to the implementation of an unofficial “no union, no strike” policy by the PEZA, in collusion with the local and national government agencies. Elements of anti-union policy include allegations of: illegal dismissal of trade unionists; restrictive union registration processes; the closure of companies to obstruct union formation and collective bargaining; interference by local government authorities in union affairs; and violation of civil liberties – including assaults, threats, intimidation, harassment, blacklisting, criminalization, militarization, abduction and murder of trade unionists in more than 15 different companies.
2. 1050. The Committee notes that according to the Government, pursuant to the operational guidelines of the TIPC Monitoring Body, the employers’ and workers’ organizations, parties to the complaint, and concerned government agencies were furnished with copies of the complaint. In this regard, letters dated 5 May 2010 were sent to the managements concerned requesting information/comments on the allegations presented in the said KMU complaint. Another letter request, dated 8 October 2010, was sent to those who failed to provide the requested information/comments. The Government further indicates that the comments would be consolidated towards the end of 2010 for case profiling by the Inter-Agency Small Group and for discussion in the Tripartite Executive Committee of the Monitoring Body prior to submission for deliberation by the members of the TIPC Monitoring Body in the first quarter of 2011. No additional information was provided by the Government in this regard.
3. 1051. The Committee also notes that some issues raised by the complainant have been examined by the Committee previously in Case No. 2528, 359th Report, paragraphs 1093–1134. These elements concern the extrajudicial killings of Gerardo “Gerry” Cristobal and Jesus “Butch” Servida, former Presidents of SM-Emi-Independent in Cavite, who were killed respectively on 10 March 2008 and 11 December 2006, and will not be raised in the present case.
   • Interference by the public authorities
4. 1052. The Committee notes that in Cavite province, where the nation’s largest EPZs are found, Governor Maliksi and his son, Mayor Maliksi, have allegedly actively and openly collaborated with the PNP and EPZ companies in ensuring the “no union, no strike” policy is effectively enforced. Workers, before they can be employed in the EPZs, must attend forums on the “evils of militant trade unionism” and Maliksi openly campaigned for the Mayoral office by promising companies they would remain “militant union and strike free”. The Committee notes with concern these allegations and recalls that the ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy provides that special incentives to attract foreign investment should not include any limitation of the workers’ freedom of association or the right to organize and bargain collectively. The Committee considers that legal provisions on EPZs should ensure the right to organize and bargain collectively for workers [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 266]. The Committee notes the Government’s indication that a legislative reform to further strengthen trade unionism and remove obstacles to the effective exercise of labour rights has been progressing as committed by the Government in response to the ILO High-level Mission in October 2009. The Committee requests the Government to keep it informed in this regard and to indicate the specific measures envisaged to ensure the full and effective exercise of labour rights in the EPZs.
5. 1053. The Committee further notes the allegations of interference of LGUs into internal union affairs. More particularly, the Committee notes:
   • (a) the allegations that local government officials at different levels allegedly tried convincing workers to stop union organizing in Nagkakaisang Manggagawa sa Hoffen Industries-OLALIA factory (Hoffen). The Committee notes that the Government indicates that the CHR NCR office will be conducting a motu proprio investigation on the human rights violations (HRV) aspect of the case, that the company categorically does not have knowledge of interference by local government officials in union organizing and that a collective agreement exists between the company and PAFLU-HEWU until 30 November 2013;
   • (b) the allegations that local village officers convinced union members to withdraw support from the union at Samahan ng Manggagawa sa Mariwasa Siam Ceramics, Inc. (Siam Ceramics). The Committee notes the Government’s indication that no case was filed with the CHR and that the CHR Region 4 office will be conducting a motu proprio investigation on the labour-related HRV aspect of the case;
   • (c) the allegations that right after the GWFPWO-Independent was registered with the DOLE, local government officials came to the factory and campaigned against union organizing and pushed for a labour-management council instead. The Committee notes the Government’s indication that no case was filed with the CHR, that the CHR NCR office will be conducting a motu proprio investigation on the labour-related HRV aspect of the case and that the company states that they invited Mr Maliski for peaceful talks with the union; and
   • (d) the allegations that at Samahan ng Manggagawa sa EDS Mfg, Inc. (EDS Inc.) corrupt former leaders in the union were used by the OPG and specifically by the Remulla clan, a political dynasty in Cavite. This resulted in serious corruption of union funds. When a new set of union leaders and members tried to rebuild the union, their efforts were mauled by OPG and its controlled union leader. The Committee notes that the Government indicates that the CHR NCR office will be conducting a motu proprio investigation on the HRV aspect of the case and that the PEZA indicates that the case concerns an inter- and intra-union dispute that does not involve the company.
6. 1054. The Committee recalls in this regard that respect of principles of freedom of association requires that the public authorities and employers exercise great restraint in relation to intervention in the internal affairs of trade unions [see Digest, op. cit., para. 859]. The Committee requests the Government to keep it informed of the investigation conducted by the CHR and to take all the necessary measures to ensure full respect of this principle. Finally, the Committee understands from the information provided by the Government that these cases were scheduled to be discussed by the TIPC in the first quarter of 2011. The Committee therefore urges the Government to provide information on the progress made by the TIPC in these cases without delay.
   • Anti-union discrimination
7. 1055. The Committee notes the complainant’s allegations that on various occasions, companies in the EPZs closed down either the whole company or strategic departments where most unionists were located following the recognition of a union. More particularly, the Committee notes:
   • (a) the allegations that Sensuous Lingerie declared closure in the middle of the negotiations for a collective bargaining agreement. The Committee notes the Government’s reply that according to PEZA, the 605 workers affected by the closure were absorbed by Carina Apparel, a sister company of Sensuous Lingerie and that those not qualified were given separation pay;
   • (b) the allegations that Golden Will Fashion Philippines announced a six-month vacation followed by closure amidst collective bargaining negotiations and the company dismissed all remaining 103 union members effective 15 August 2009 due to a dubious retrenchment policy. The Committee notes the Government’s reply that according to PEZA, the company had temporarily shut down due to the global financial crisis from March to August 2009. It filed a final notice of retrenchment to the DOLE and made payment to the workers in accordance with the law. Some did not yet receive their payment. The company deposited with the NLRC the remaining separation pay for employees. According to PEZA, the company maintains one person to be contacted by workers to get payment. With no buyers, the company closed and filed cancellation of its PEZA registration; and
   • (c) the allegations that when the Goldilocks Ant-Bel Workers Association was registered on 1 November 2008, the management responded the next month with the closure of the unionized branch. The Committee notes the Government’s reply that the CHR NCR office certifies that no case was filed and no motu proprio investigation was conducted. According to the management of Goldilocks Ant-Bel Marketing Inc. is an independent contractor and it has no authority to bind the franchiser or Goldilocks Bakeshop in any manner. The company has absolutely no control nor authority over any aspect of the franchisee’s operations including the supervision of employees, formulation and implementation of labour-management policies and practices.
8. 1056. The Committee recalls that workers in EPZs – despite the economic arguments often put forward – like other workers, without distinction whatsoever, should enjoy the trade union rights provided for by the freedom of association Conventions [see Digest, op. cit., para. 264]. On the other hand, the Committee must recall the importance it attaches to the obligation to negotiate in good faith for the maintenance of the harmonious development of labour relations [see Digest, op. cit., para. 934]. Further, while the genuine closure of companies is not contrary to the principle that both employers and trade unions should negotiate in good faith and make efforts to reach an agreement, the closure and lay-off of employees specifically in response to the exercise of trade union rights is tantamount to the denial of such rights and should be avoided. The Committee urges the Government to ensure that the Labour Code, which governs the relationship between labour and management in the registered enterprises in the EPZs, is applied in practice. The Committee requests the Government to keep it informed of the investigations conducted by the CHR and to indicate the progress made by the TIPC in these cases.
9. 1057. The Committee further notes the allegations of anti-union discrimination and more particularly cases concerning illegal dismissals of trade union members in the following enterprises:
   • (a) Daiho Philippines Inc., where the management allegedly simultaneously terminated 106 workers in both its factories in Laguna Technopark and Lima Technology in Batangas on 19 February 2009. The Committee notes the Government’s indication that according to PEZA, the management filed a notice of retrenchment to DOLE 4A on 18 February 2009 due to financial losses and this took effect on 21 March 2009. It offered fair and justified separation pay. No case was filed with the CHR. The CHR Region 4 office will be conducting a motu proprio investigation on the labour-related HRV aspect of the case;
   • (b) Hanjin Garments-Independent where it was alleged that, in successive waves, more than 200 workers were dismissed in the process of union formation. The Committee notes that no information was provided by the Government in this regard;
   • (c) Asia Brewery, where the company allegedly dismissed 31 union officers and members in the process of union recognition. The Committee notes the Government’s indication that no case was filed with the CHR. The CHR Region 4 office will be conducting a motu proprio investigation on the labour-related HRV aspect of the case;
   • (d) NMCW-Independent, where the factory dismissed 116 workers. The Committee notes the Government’s indication that according to PEZA, the company closed in February 2007 and filed an insolvency case. The lawyer of the workers was appointed to distribute assets of the company; and
   • (e) Anita’s Home Bakeshop, where a total of 33 workers were dismissed, including 11 union officers. The Committee notes the Government’s indication that according to the management, the alleged illegal dismissal of ANGLO members is pending before NLRC RAB VII or the NLRC Division 4 in Cebu City.
10. 1058. The Committee further notes that in the case of Sun Ever Lights, according to the complainant, in affirmation of a decision issued by the NLRC, the company fired 170 union members. The Government confirms that the NLRC issued a decision upholding management’s right to terminate employees who participated in an illegal strike. The Committee further notes that, according to the complainant, the company also refuses to implement a reinstatement order issued by the NLRC on 14 July 2008. The Committee notes the Government’s indication that a motion for writ of execution of the NLRC decision is before the NLRC.
11. 1059. Likewise, the Committee notes the allegations that Enkei Philippines terminated 47 of its employees who attended the union’s general membership meeting on 19 June 2006 and, although the Commissioner of the Third Division of the NLRC issued an order reinstating the workers with full back wages on 29 May 2007, the company refuses to reinstate the union members. The Committee notes that according to the Government’s indication, no case was filed with the CHR. The CHR Region 4 office will be conducting a motu proprio investigation on the labour-related HRV aspect of the case.
12. 1060. The Committee reminds the Government that it is responsible for preventing all acts of anti-union discrimination and must ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned. Cases concerning anti-union discrimination contrary to Convention No. 98 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, op. cit., paras 817 and 826].
13. 1061. In view of the principles enunciated above, the Committee urges the Government, should the allegations in respect of Enkei Philippines be true as regards the 2007 Order for Reinstatement, to ensure that the union members who were dismissed are reinstated immediately in their jobs under the same terms and conditions prevailing prior to their dismissal with compensation for lost wages and benefits, in conformity with the order for reinstatement. In the case of Sun Ever Lights, noting that according to the Government a motion for writ of execution of the NLRC decision is pending with the NLRC, the Committee requests the Government to keep it informed of any developments in this regard. The Committee further requests the Government to keep it informed of the progress made by the TIPC in these cases.
14. 1062. Concerning the other abovementioned allegations of illegal dismissals, the Committee requests the Government to carry out independent investigations of dismissals and, if it finds that they constitute anti-union acts, to take measures to ensure the reinstatement of the workers concerned. If reinstatement is not possible for objective and compelling reasons, the Government should ensure that the workers concerned are paid adequate compensation which would represent a sufficiently dissuasive sanction for anti-trade union dismissals. The Committee further requests the Government to keep it informed of the investigations conducted by the CHR and to indicate the progress made by the TIPC in these cases. In addition, in the case of Anita’s Home Bakeshop, the Committee urges the Government to keep it informed of any judgment handed down by the NLRC RAB VII or the NLRC Division 4 in Cebu City.
    • Denial of the right to strike
15. 1063. The Committee notes the allegations that on several occasions when workers voted to go on strike, the Secretary of Labor issued “assumption of jurisdiction” and “return to work” orders. In the case of the Aichi Forging Company, one of the reasons given for the issuance of the assumption of jurisdiction was: “As the company is located in an economic zone, the work stoppage may also undermine the Government’s efforts to promote and encourage foreign and local investments in order to generate employment and spur economic development”.
16. 1064. The Committee notes the Government’s indication that actions have been taken in key areas of concern, and that the first bill that seeks to amend article 263(g) of the Labour Code, which authorizes the Secretary of Labor (and the President) to assume jurisdiction over labour disputes imbued with national interest, is undergoing tripartite consultation but a consensus has so far not been reached in this regard. Recalling that freedom of association principles equally apply to workers in EPZs, the Committee requests the Government to keep it informed of the ongoing legislative reform and expects that the Government will take the necessary measures to ensure the full respect for the trade union rights of EPZ workers. The Committee further requests the Government to indicate the progress made by the TIPC in the case of the Aichi Forging Company and that of the company Nagkakaisang Manggagawa sa Chong Won, where the company is alleged to have closed down operations in May 2007 during a strike.
    • Blacklists
17. 1065. The Committee notes that:
    • (a) according to the complainant, the names and enlarged pictures of employees of Daiho Philippines were posted on the entrance gates of EPZs the day after they were dismissed from their jobs, barring them from entry and restricting them from seeking employment in other companies in the EPZs. The Committee notes the Government’s indication that according to the management, the company gave the list of retrenched employees to LTI and LIMA Securities for the company’s security and to further avoid the retrenched employees entering the factory premises and remaining within the vicinity of the company; and
    • (b) according to the complainant, the photos of 30 members of the Anita’s Home Bakeshop Workers Union-Anglo-KMU were posted on the company’s bulletin board, labelled as a “terrorist group”. The Committee notes the Government’s indication that according to the management, the company is not located in any EPZ, special economic zone, or in the areas specifically stated in the KMU report. The company vehemently denies charges of blacklisting or the vilification of ANGLO members as terrorists. According to the company, it is a victim of the tug-of-war between AHBIEA and ANGLO-KMU. There was no HRV case filed with the CHR Region 7 office but it has conducted a motu proprio investigation and submitted a status report. Since proper agencies of the Government took cognizance on the issues raised, it was recommended that the CHR would monitor the progress of the case.
18. 1066. The Committee recalls that the restriction of a person’s movements to a limited area, accompanied by the prohibition of entry into the area in which his or her trade union operates and in which he or she normally carries on trade union functions, is inconsistent with the normal enjoyment of the right of association and with the exercise of the right to carry on trade union activities and functions and all practices involving blacklisting of trade union officials or members constitute a serious threat to the free exercise of trade union rights and, in general, governments should take stringent measures to combat such practices [see Digest, op. cit., paras 129 and 803]. The Committee requests the Government to keep it informed of the outcome of the investigation conducted by the CHR and to indicate the progress made by the TIPC in these cases.
    • Extrajudicial killings, assault and abduction of
    • trade unionists
19. 1067. The Committee notes the allegations that on many occasions, the PEZA and municipal government sent units of the PNP and/or the SWAG, Emirates security guards, the Regional Special Action Forces-PNP to intimidate and/or disperse workers during protests, strikes or on picket lines. It is alleged that these events led to the assault, abduction and killing of trade union members on certain occasions.
20. 1068. More particularly, the Committee notes the following cases:
    • (a) Hanjin Garments, where the police allegedly dispersed workers who were peacefully airing their grievances, resulting in the death of one protester. The Committee notes the Government’s indication that according to Laguna PPO, the Cabuyao MPS has no record of the incident in its blotter; and
    • (b) Kaisahan no mga Manggagawa sa Phils., where the union President, Normelita Galon, and Shop Steward, Aurora Afable, were gagged, blindfolded, and forcibly taken from the picket line by the armed elements, allegedly upon orders of the management and PEZA, and thrown in a muddy area outside the Cavite Export Processing Zone. The Committee notes the Government’s indications that according to PEZA, strikers were pushed away from the gates.
21. 1069. The Committee deplores the gravity of these allegations. It notes however the Government’s indication that action has been taken in key areas of concern, notably to address the issue of impunity and exploring “out of the box” solutions to the long-standing cases.
22. 1070. The Committee is bound to recall that freedom of association can only be exercised in conditions in which fundamental rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed [see Digest, op. cit., para. 43]. A climate of violence, such as that surrounding the murder or disappearance of trade union leaders, or one in which the premises and property of workers and employers are attacked, constitutes a serious obstacle to the exercise of trade union rights; such acts require severe measures to be taken by the authorities [see Digest, op. cit., para. 46]. In this respect, the Committee considers that facts imputable to individuals bring into play the State’s responsibility owing to the State’s obligation to prevent violations of human rights. Consequently, governments should endeavour to meet their obligations regarding the respect of individual rights and freedoms, as well as their obligation to guarantee the right to life of trade unionists [see Digest, op. cit., para. 47]. It also emphasizes that the absence of judgments against the guilty parties creates in practice a situation of impunity which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights [see Digest, op. cit., para. 52]. In addition, in cases in which the dispersal of public meetings by the police has involved loss of life or serious injury, the Committee has attached special importance to the circumstances being fully investigated immediately through an independent inquiry and to a regular legal procedure being followed to determine the justification for the action taken by the police and to determine responsibilities [see Digest, op. cit., para. 49].
23. 1071. The Committee therefore requests the Government to establish an independent judicial inquiry and proceedings before the competent courts as soon as possible with regard to the allegations of abductions, disappearances and the killing of a protester with a view to shedding full light onto the relevant facts and circumstances, and to determine where responsibilities lie, punish the guilty parties and prevent the repetition of similar events. The Committee firmly expects that the investigation and trials will proceed without delay and in full independence, so that all responsible parties may be identified and punished before the competent courts as soon as possible and a climate of impunity be avoided. The Committee requests to be kept informed in this respect and requests the Government to indicate the progress made by the TIPC in these cases.
    • Harassment and interference: Militarization of the workplace
24. 1072. The Committee notes the following cases alleged by the complainant:
    • (a) Sun Ever Lights, where PEZA and municipal government allegedly sent units of PNP to intimidate and disperse workers’ protest actions from 30 November until 1 December 2004. The Committee notes the Government’s indication that according to PEZA, the company requested the assistance from the Ecozone developer who asked the LIPAG to monitor peace and order during the three-day rally. Workers refused to leave the premises. They were allowed to stay but were refused re-entry once they went out of the gates. PEZA guards were roving within the vicinity and the developer guards were on 24-hour duty. No case was filed with the CHR. The CHR Region 4 office will be conducting a motu proprio investigation on the labour-related HRV aspect of the case;
    • (b) Hanjin Garments, where the municipal government allegedly ordered the PNP to enforce a food blockade, and the intimidation and dispersal of workers on strike. The Committee notes the Government’s indication that according to Laguna PPO, the alleged workers’ strike in Hanjin Garments on 25–26 January 2008, where the Cabuyao Municipal Government ordered the PNP to enforce a food blockade. is not true. The Cabuyao MPS has no record of the incident in its blotter;
    • (c) Asia Brewery, where on 4 February 2009, the strike was alleged to have been violently dispersed by PNP. The Committee notes the Government’s indication that according to Laguna PPO, it is not true that the strike was met with violent dispersals. No case was filed with the CHR. The CHR Region 4 office will be conducting a motu proprio investigation on the labour-related HRV aspect of the case; and
    • (d) Sensuous Lingerie, where two busloads of about 100 elements of the PNP of Calamba City, Laguna, allegedly prevented workers from participating in strike voting on 16 May 2008. The Committee notes the Government’s indication that according to PEZA, the union’s officers and active members prevented shuttle buses of outgoing workers to pass through the gates and forced workers to allegedly cast their vote whether to declare a strike or not. No case was filed with the CHR. The CHR Region 4 office will be conducting a motu proprio investigation on the labour-related HRV aspect of the case.
25. 1073. The Committee deeply regrets the allegations of involvement of the army and police in the dispersal of the picket line and union collective actions. The Committee recalls that the authorities should resort to calling in the police in a strike situation only if there is a genuine threat to public order. The intervention of the police should be in proportion to the threat to public order and governments should take measures to ensure that the competent authorities receive adequate instructions so as to avoid the danger of excessive violence in trying to control demonstrations that might undermine public order [see Digest, op. cit., para. 647]. Noting that the Government has provided information contrary to these allegations, the Committee therefore requests it to take all necessary measures for an independent investigation to be carried out in the abovementioned incidents alleged by the complainant with a view to identifying and punishing those responsible without further delay. The Committee requests the Government to keep it informed of the investigations conducted by the CHR and to indicate the progress made by the TIPC in these cases.
26. 1074. The Committee further requests the Government to give adequate instructions to the law enforcement authorities so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations. In this regard, the Committee notes the Government’s indication that the revised DOLE–PNP–PEZA guidelines in the conduct of PNP personnel, economic zone police and security guards, company security guards and similar personnel during labour disputes is nearing completion and that it was expected to be signed before the end of 2010, as tripartite consultations had already been undertaken. The Committee requests to be kept informed of any development in this respect.
27. 1075. The Committee further notes the allegations of a prolonged presence of the army inside the workplaces in the following enterprises:
    • (a) Sun Ever Lights, where elements of the SWAG of the PNP allegedly man the production lines to monitor the activities of union members. The Committee notes the Government’s indication that no case was filed with the CHR and that the CHR Region 4 office will be conducting a motu proprio investigation on the labour-related HRV aspect of the case;
    • (b) Siam Ceramics, where members of the PNP-PMG were alledgedly stationed inside production lines and the whole factory compound during the process of petition for certification election. The Committee notes the Government’s indication that according to the management, the company never engaged the members of the PNPPMG to be stationed inside the production lines or the whole factory compound during the process of certification. DOLE 4A issued a resolution dated 28 October 2005 dismissing related protests in the conduct of the election for lack of merit. No case was filed with the CHR. The CHR Region 4 office will be conducting a motu proprio investigation on the labour-related HRV aspect of the case; and
    • (c) Aichi Forging Company, where the management allegedly tripled the size of its security forces and deployed intelligence operatives while negotiations for the CBA were occurring. The Committee notes the Government’s indication that according to PEZA, the security force was increased because of pilfering and not because of union activities.
28. 1076. The Committee expresses deep concern at the allegations of a prolonged presence of the army inside workplaces which, if true, and depending on the circumstances, is liable to have an intimidating effect on the workers wishing to engage in trade union activities, and to create an atmosphere of mistrust which is hardly conducive to harmonious industrial relations. All appropriate measures should therefore be taken to guarantee that, irrespective of trade union affiliation, trade union rights can 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 [see Digest, op. cit., para. 35].
29. 1077. The Committee therefore requests the Government to take urgent measures, including the issuance of appropriate instructions, to bring an end to any continuing military presence inside the workplaces. The Committee requests the Government to keep it informed of the investigations conducted by the CHR. The Committee further requests the Government to indicate the progress made by the TIPC in these cases.
    • Arrest and detention
30. 1078. The Committee notes that according to the complainant, false charges were filed against an important number of labour leaders and unionists. These alleged cases involved trumped-up charges against leaders and active union members at the onset of union formation, during collective bargaining negotiations, picket protests, and strikes. Aside from the local company level, regional and provincial leaders were also criminally charged and tagged as members of the CPP-NPA.
31. 1079. The Committee recalls that in cases involving the arrest, detention or sentencing of a trade union official, the Committee, taking the view that individuals have the right to be presumed innocent until found guilty, has considered that it was incumbent upon the Government to show that the measures it had taken were in no way occasioned by the trade union activities of the individual concerned [see Digest, op. cit., para. 94].
32. 1080. More particularly, the Committee notes the following cases:
    • (a) PAMANTIK-KMU Chairman Romeo Legaspi and other officers charged with attempted murder, multiple murders, and multiple frustrated murders in various courts. The Committee notes the Government’s indication that the case of Romeo Legaspi is under investigation;
    • (b) Asia Brewery where, on 6 March 2008, five injured protesters were allegedly detained and falsely accused. The Committee notes the Government’s indication that according to Laguna PPO, Rodrigo Perez, together with three others, was charged with malicious mischief when he and his companions smashed two plastic windows and punctured all the tyres of a shuttle bus at the Asia Brewery on 4 October 2004 and Bonifacio Fenol et al. were charged with grave disobedience for throwing stones at a group of policemen who tried to pacify them during the strike that transpired in front of Asia Brewery on 4 February 2009. No case was filed with the CHR. The CHR Region 4 office will be conducting a motu proprio investigation on the labour-related HRV aspect of the case;
    • (c) Christopher Capistrano, union Vice-President of Hanjin Garments, charged with criminal cases before the Binan Regional Trial Court. The Committee notes the Government’s indication that according to Laguna PPO, Christopher Capistrano, together with three others, was involved in an altercation with Cabuyao policemen who tried to pacify them during the strike that occurred on 6 February 2008. They were charged with direct assault and physical injury;
    • (d) Ricardo Cahanap, union Vice-President of Phils. Jeon, and 33 union leaders of Chong Won and Phils. Jeon workers’ union were charged with direct assault and grave coercion. The Committee notes the Government’s indication that according to PEZA, all criminal charges were dismissed in 2009;
    • (e) Golden Will Fashion, where 25 union officers and members were charged with qualified theft. The Committee notes the Government’s indication that according to PEZA, the investigation shows that garments ready for shipping were missing and there was admission on the part of the workers that they had stolen the garments; and
    • (f) Declard Cangmaong, allegedly arrested and detained without a warrant on charges of “multiple murder with quadruple frustrated murder and damage to government property” by elements of the PA and CIDG on 21 September 2009. No information was provided by the Government in this regard.
33. 1081. The Committee requests the Government to communicate the texts of any judgments handed down in these cases. The Committee further requests the Government to ensure that all relevant information is gathered in an independent manner so as to shed full light on their situation and the circumstances surrounding their arrest. Should it be determined that they were arrested in relation to their trade union activities, the Committee requests the Government to take the necessary measures to ensure that they are immediately released and all charges dropped. The Committee requests the Government to keep it informed of the investigations conducted by the CHR and to indicate the progress made by the TIPC in these cases and to provide information on all the alleged cases.

Z. ANNEX

• Appendix not included.