Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 370, Octobre 2013

1. 643. The Committee last examined this case at its June 2012 meeting, when it presented an interim report to the Governing Body [364th Report, paras 971–1008, approved by the Governing Body at its 315th Session (June 2012)].
2. 644. The Government forwarded its observations in communications dated 26 April and 2 May 2013.
3. 645. The Philippines has ratified 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. 646. At its June 2012 session, in the light of the Committee’s interim conclusions, the Governing Body approved the following recommendations:
   • (a) The Committee expects that the Government will continue to engage with the KMU in dealing with cases involving its members and leaders and invites the complainant organization to cooperate as far as possible with the Government to this end. The Committee requests to be kept informed in this respect.
   • (b) The Committee requests the Government to keep it informed on any progress made towards the adoption of the Strengthening Workers’ Rights to Self Organization Bill.
   • (c) Recalling 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 once again requests the Government to indicate the concrete steps taken or envisaged to guarantee the full and effective exercise of trade union rights in the EPZs.
   • (d) Concerning the concrete allegations of Government interference into internal union affairs at the Nagkakaisang Manggagawa sa Hoffen Industries-OLALIA factory (Hoffen), Samahan ng Manggagawa sa Mariwasa Siam Ceramics, Inc. (Siam Ceramics), Golden Will Fashion and Samahan ng Manggagawa sa EDS Mfg, Inc. (EDS Inc.), the Committee requests to be kept informed of the motu proprio (on its own violation) investigations that were to be conducted into these allegations by the CHR, expects that the Government will soon be able to report progress in the resolution of these cases and requests the Government to take all the necessary measures to ensure full respect of the principle that public authorities must exercise great restraint in relation to intervention in the internal affairs of trade unions.
   • (e) With respect to 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 (in particular Goldilocks, Sensuous Lingerie and Golden Will Fashion Philippines), the Committee, considering that the closure or restructuring and the 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 Labor 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 provide information concerning the motu proprio investigations conducted by the CHR and expects that the Government will make efforts to ensure a speedy resolution of the above cases by the agencies concerned. It requests the Government to keep it informed in this regard.
   • (f) As regards the allegations of anti-union discrimination and more particularly of illegal dismissals of trade union members in the enterprises Enkei Philippines, Sun Ever Lights, Daiho Philippines Inc., Hanjin Garments, Asia Brewery, Nagkakaisang Manggagawa sa Chong Won (NMCW) and Anita’s Home Bakeshop, the Committee requests the Government, in respect of the first company, to take the necessary steps so that, pending the outcome of any appeal proceedings instituted by the company, 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 2007 NLRC order for reinstatement; 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. Similarly, in the case of the second company, the Committee requests the Government to keep it informed of any developments in regard to the motion for writ of execution of the 2008 NLRC reinstatement order pending with the NLRC. Concerning the alleged illegal dismissals at the other companies, the Committee requests the Government to carry out independent investigations of the dismissals and, if it finds that they constitute anti-union acts, to take measures to ensure the reinstatement of the workers concerned without delay. 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. In addition, in the case of the last company, the Committee once again urges the Government to keep it informed of any relevant judgment handed down, and in particular of the decisions of the NLRC RAB VII or the NLRC Division 4 in Cebu City. The Committee further requests the Government to keep it informed of the motu proprio on its own volition investigations that were to be conducted by the CHR into the abovementioned allegations. It expects that the Government will do its utmost to ensure a speedy and equitable resolution of all cases by the agencies concerned.
   • (g) As to the allegations concerning denial of the right to strike, the Committee trusts that the ongoing legislative reform will advance successfully and requests the Government to continue to keep it informed in regard to progress made towards the adoption of Senate Bill No. 632, which seeks to align article 263(g) of the Philippine Labor Code with the essential services criteria under Convention No. 87. The Committee expects that the Government will take the necessary measures without delay to ensure the full respect for the trade union rights of EPZ workers in practice, including the right to strike, as well as to ensure the speedy resolution of the case of NMCW.
   • (h) With respect to the allegations of blacklisting and vilification of union members at Daiho Philippines and Anita’s Home Bakeshop, the Committee requests the Government to keep it informed of the outcome of any inquiries conducted by the CHR and to make efforts to ensure the swift investigation and resolution of these cases.
   • (i) As regards the serious allegations that on many occasions, the PEZA and municipal government sent PNP units or security forces to intimidate and/or disperse workers during protests, strikes or on picket lines, which, in the case of Hanjin Garments, resulted in the death of one protester, the Committee once again requests the Government to establish without delay an independent judicial inquiry and proceedings before the competent courts as soon as possible with regard to the allegation of 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 Government will do its utmost to ensure the speedy investigation and judicial examination of this case and requests to be kept informed in this respect. Concerning the alleged involvement of the army and police in the dispersal of the picket line and union collective actions at Sun Ever Lights, Sensuous Lingerie, Hanjin Garments and Asia Brewery, the Committee, in view of the conflicting versions of the complainant, the Government and the management, requests the Government to take all necessary measures for an independent investigation to be carried out into the alleged incidents with a view to identifying and punishing those responsible without further delay. The Committee requests the Government to keep it informed of the motu proprio investigations conducted by the CHR and to make all efforts to ensure timely progress in the resolution of these cases.
   • (j) Concerning the allegations of a prolonged presence of the army inside the workplaces in the enterprises Sun Ever Lights, Aichi Forging Company and Siam Ceramics, the Committee requests the Government to keep it informed of the motu proprio investigations conducted by the CHR and to take the necessary measures to ensure the speedy resolution of these cases. It also requests the Government to supply a copy of the PNP Guidelines on the Accountability of the Immediate Officer for the Involvement of His Subordinates in Criminal Offenses.
   • (k) As regards the allegations of arrest and detention following false criminal charges filed against labour leaders and unionists at the onset of union formation, during collective bargaining negotiations, picket protests, and strikes at the companies Hanjin Garments, Asia Brewery, Golden Will Fashion, Sensuous Lingerie and Kaisahan ng Manggagawa sa Phils. Jeon Inc., the Committee requests the Government to ensure that all relevant information is gathered in an independent manner so as to shed full light on the situation and the circumstances surrounding the arrest of the above trade unionists; 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 motu proprio investigations conducted by the CHR, to do its utmost to soon be able to report progress in investigating all alleged cases of arrest and detention and to communicate the texts of any judgments handed down in these cases.
   • (l) The Committee draws the special attention of the Governing Body to the extreme seriousness and urgent nature of the matters dealt with in this case.

B. The Government’s reply

1. 647. In its communication dated 2 May 2013, the Government reiterates that the Monitoring Body of the National Tripartite Industrial Peace Council (NTIPC-MB) has issued resolution No. 8, series of 2012, on 15 February 2012, where 17 cases of alleged violation of trade union rights involving companies within the special economic zones were classified as possibly labour-related under ILO Convention No. 87. Out of this number, one case has been recommended for closure, and the following four cases are covered by separate resolutions issued by the NTIPC-MB as they have been previously raised in other ILO cases:
   • (a) The Samahan ng mga Manggagawa sa EMI-Independent case involves the killings of Gerardo Cristobal and Jesus Butch Servida, both of which have been raised in Case No. 2528. These cases were endorsed to the Commission on Human Rights (CHR) through resolution No. 2, series of 2010, for in-depth investigation or final pass. After evaluating the recommendation of the CHR vis-à-vis the other information gathered on the cases, the NTIPC-MB resolved to refer the cases back to Task Force Usig of the Philippine National Police (PNP), through resolution No. 1, series of 2012, for further investigation and validation of facts. The PNP Task Force Usig has recommended their treatment as a regular case because the circumstances and evidences point to the fact that they do not constitute an infringement of the exercise of freedom of association.
   • (b) The Kaisahan ng Manggagawa sa Phils. Jeon Inc. case involves the alleged abduction and alleged filing of criminal action against Normelita Galon and Aurora Afable and has been raised in Case No. 2528. Through resolution No. 2, series of 2012, the NTIPC-MB referred the case to the Philippine Economic Zone Authority (PEZA), PNP-Task Force Usig and CHR for validation and reconciliation of reports that may be used as factual evidence for the resolution of the case and, request for updates on the pending case before the Municipal Trial Court of Rosario, Cavite.
   • (c) The Aniban Manggagawang Inaapi sa Hanjin Garments case involves the alleged filing of criminal cases against Christopher Capistrano, et al., which was likewise raised in ILO Case No. 2528 and was covered by resolution No. 3, series of 2012. It is worthy to note that information from the Department of Justice (DOJ) shows that the direct assault case filed against Capistrano, et al., had already been dismissed on 10 March 2011.
   • (d) The PAMANTIK (Solidarity of Workers in Southern Tagalog)–KMU case involves the alleged filing of criminal charges against Jay Abhan, et al., was raised as an additional case under Case No. 2528 and was covered by resolution No. 7, series of 2012. Initial information from the DOJ indicated that the case was docketed as UA No. 08C-02358 before the Office of the Assistant Prosecutor. However, after verification with the Office of the Manila City Prosecutor, records show that the case does not exist.
2. 648. As to the other remaining cases, the Government provides the following updated information gathered from the various concerned agencies through the NTIPC-MB:
   • (a) The Goldilocks Ant-Bel case involves company closure. The workers’ association of the company filed a complaint for unfair labour practice, illegal dismissal, moral and exemplary damages and attorney’s fees, which was resolved by the Labour Arbiter of the National Labour Relations Commission (NLRC) in favour of the union on 27 January 2011. However, on 18 July 2011, the NLRC issued a decision reversing the order dated 27 January 2011, dismissing the complaint and directing the respondent to pay the complainants their separation pay. The union then elevated the case to the Court of Appeals. The NTIPC-MB resolved to refer the case to the Court of Appeals to expedite its resolution. On 19 June 2012, the petition for certiorari was denied and dismissed for lack of merit. The Court ruled that the decision to close business is a management prerogative exclusive to the employer, the exercise of which no court can meddle with, except when the employer fails to prove compliance with the requirements of section 283 of the Labour Code, which recognizes the company’s cessation of business operation as an authorized cause. In this particular case, petitioners’ services were validly terminated due to the non renewal of private respondents’ franchise agreement with Goldilocks Bakeshop, Inc. after it expired on 17 November 2008. The closure of Goldilocks Harrizon Plaza, Manila was inevitable after the franchiser no longer renewed the franchise due to Ant-Bel Marketing, Inc.’s continuing inability to conform with the standards of “Goldilocks system” by undertaking a renovation of the store. According to the Court, with the legality of private respondents’ cessation and closure of business having been established, it goes without saying that there is no illegal dismissal to speak of, hence, no obligation to pay back wages, moral and exemplary damages, as well as attorney’s fees. A motion for reconsideration has been filed but the same was denied on 25 September 2012.
   • (b) Golden Will Fashion Phils. Workers Organization-Independent – This case involves alleged illegal dismissal, company closure, and interference of the local government unit (LGU) with union affairs. Allegedly, there had been threat, harassment and intervention of the Office of the Provincial Government under the Cavite Industrial Peace Advisory Group which constituted violation of trade union rights. The NTIPC MB resolved to refer the case to the appropriate agencies for further investigation on the alleged interference of local government officials who allegedly tried to suppress union organizing in favour of the management, and validation of the PEZA report. As per the PEZA, it appears that when the union was registered in the company, the management invited the mayor to lecture on the labour management committee. The company, however, is already closed and its PEZA registration was cancelled in 2009.
   • (c) The case Tunay na Pagkakaisa ng Manggagawa sa Asia Brewery Incorporated-Independent (TPMA-Independent) and PIMA-Independent against Asia Brewery involves alleged illegal dismissal, assault and criminalization of labour cases. Bonifacio Fenol, et al., were criminally charged for throwing stones on the group of policemen who tried to pacify them during the strike that transpired in front of the company on 4 February 2009. Likewise, Rodrigo Perez, et al., were charged with malicious mischief when they smashed two plastic windows and punctured all the tires of a shuttle bus at the company on 4 October 2004. The NTIPC-MB resolved to refer the cases to the Supreme Court and DOJ to ensure the speedy resolution of the criminal charges filed against Bonifacio Fenol, et al., and Rodrigo Perez, et al., that are before the Cabuyao Municipal Trial Court docketed as criminal cases Nos 10061 and 9338, respectively. Based on the information provided, it was found that criminal case No. 10061 (People of the Philippines v. Bonifacio Fenol, et al.) was already dismissed on 11 August 2011. Meanwhile, the NTIPC-MB is still monitoring criminal case No. 9338 (People of the Philippines v. Rodrigo Perez, et al.), where the last update received was that the new judge who had taken over needed to review the records of the case and that a hearing was called for clarification purposes.
   • (d) Nagkakaisang Manggagawa sa Chong Won (NMCW) – This case involves alleged illegal dismissal, closure and criminalization of labour dispute. It was noted, however, that all criminal cases (Nos 09–34) were dismissed in 2009. Moreover, the company closed in February 2007 and an insolvency case has been filed. The lawyer of the workers was appointed to distribute the assets of the company to the workers claimant in the case. The NTIPC-MB resolved to refer the case to PEZA for monitoring of the insolvency case filed by the company and of the distribution of assets of the company to the workers. PEZA reported that it has auctioned the properties of the company for about 1.6 million Philippine pesos (PHP). The court has drawn up a report on the distribution of the money, a copy of which is to be transmitted to the NTIPC-MB.
3. 649. The Government observes that common issues that are being raised include: illegal dismissal; interference of local government units with union affairs; criminalization; and assault in the picket lines. It reiterates that these cases have occurred under the past administration and that, at present, no violence occurs in the economic zones. This can be attributed to the implementation of the Joint DOLE (Department of Labour and Employment)–PNP–PEZA Guidelines on the conduct of PNP personnel, economic zone police and security guards, company security guards and similar personnel during labour disputes. The capacity building being conducted on the Guidelines as well as on freedom of association, collective bargaining and international labour standards are effective in educating all the stakeholders (including the police and officials of the local government units) as regards their respective responsibilities and limitations relative to labour disputes and exercise of trade union rights.
4. 650. Moreover, to ensure that labour disputes are not converted into criminal cases, the DOLE is coordinating with the DOJ for an issuance reinforcing the provisions of Circulars Nos 15, series of 1982, and 9, series of 1986, requiring fiscals/prosecutors and other government 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”.

Legislative reforms

1. 651. Concerning the progress on legislative reforms, the Government indicates that the legislative measure seeking to address the alleged arbitrariness in the exercise of the assumption of jurisdiction power of the Secretary of Labour and Employment has passed second reading at the Senate while the House of Representatives’ version has stalled at the committee deliberation stage. On the other hand, the proposed bill on union registration or the Strengthening Workers’ Rights to Self-Organization Bill, amending articles 234, 235, 236, 237 and 270 of the Labour Code, was approved by the House of Representatives but the Senate version has stalled at second reading. According to the Government, there is a very slim chance for the two bills gaining approval at this 15th Congress, as it is already in recess until June 2013 and the election campaign for seats in the 16th Congress has started.
2. 652. However, the Government points out that in DOLE Department Order No. 40-G-03, the interim measure providing implementing rules on the exercise of the assumption of jurisdiction power of the Secretary of Labour and Employment to address its claimed arbitrariness, has been complemented by the implementation of the Single Entry Approach (SEnA) Programme or DOLE Department Order No. 107-10, providing for a 30-day mandatory conciliation–mediation service on all individual and collective labour and employment disputes as the first approach. The use of intensive conciliation–mediation has been effective as it reduced resort to compulsory mode of dispute resolution including that of assumption of jurisdiction. The Government supplies statistics stating that, since the implementation of SEnA mid-2010, the number of settled requests for assistance under SEnA has increased, the number of handled collective labour cases has declined, the number of compulsory arbitration cases has decreased, and the number of assumption of jurisdiction cases has markedly declined.
3. 653. The legislative measure to institutionalize the use of conciliation–mediation under SEnA as prior resort in all labour disputes by amending article 228 of the Labour Code and the Strengthening of Tripartism Bill have been enacted into law (Republic Acts Nos 10396 and 10395 of 14 March 2013). According to the Government, these legislative measures are critical in the institutionalization of reforms in dispute settlement, as they provide for expeditious and non-adversarial venues for dispute settlement. SEnA and the tripartite approach in the delivery of conciliation–mediation services have, so far, been effective in the settlement of collective disputes, and might eventually render resort to assumption of jurisdiction unnecessary as they prevent escalation into full-blown labour disputes.
4. 654. The Government also states that the success of enacting into law the bills concerning SEnA and tripartism is largely due to the fact that department orders or administrative issuances were issued prior to their filing in Congress. The administrative issuances were crafted through the NTIPC, and the tripartite partners have had the opportunity to go through them. Additionally, they were able to fine-tune their features during their implementation and the positive experiences contributed to their tripartite endorsement in Congress. This approach will be used in securing a consensus to shift the exercise of the assumption of jurisdiction power from the “industry indispensable to the national interest” criteria to “essential services” through the proposed bill that will be re-filed in the 16th Congress convening in July 2013.
5. 655. Tripartite discussion at the Tripartite Executive Committee (TEC) of the NTIPC to come out with a list of industries indispensable to the national interest using the essential services criteria of the ILO has started on 10 and 11 April 2013. The administrative issuance is contemplated to provide for conditions for the exercise of the Secretary of Labour and Employment’s assumption power over the following: (a) industries considered indispensable to the national interest as listed using the essential services criteria; and (b) industries not considered indispensable to the national interest. In both instances, either or both parties shall invoke the exercise of the assumptive power through a petition, and if invoked by both parties, its issuance shall be automatic regardless of the category of the industry.

Capacity-building activities

1. 656. The Government reiterates that the Joint DOLE–PNP–PEZA Guidelines were issued on 23 May 2011, and the Guidelines on the Conduct of the DOLE, Department of the Interior and Local Government (DILG), Department of National Defence (DND), DOJ, Armed Forces of the Philippines (AFP) and PNP Relative to the Exercise of Workers’ Rights and Activities were signed and issued on 7 May 2012. The two sets of Guidelines specifically prescribe conduct that must be observed by implementers, as well as other stakeholders, if and when labour disputes arise so as not to undermine the exercise of workers’ rights.
2. 657. In order to cascade the 2011 Joint DOLE–PNP–PEZA Guidelines, four area-wide orientation seminars were held in Luzon, Mindanao and Visayas at the end of 2011 for members of the Regional Tripartite Industrial Peace Councils (RTIPCs) and Regional Coordinating Councils. The exercise aimed at fostering a common understanding on the Guidelines, understanding the function and jurisdiction of DOLE, PNP and PEZA and promoting their close coordination. Four one-day advocacy workshops will be conducted from September to December 2013 on the 2012 Guidelines on the conduct of the DOLE, DILG, DND, DOJ, AFP and PNP for the sectoral/tripartite partners (DOLE, RTIPCs, RTIPC-Monitoring Bodies, DILG especially LGUs, DND, DOJ, AFP and PNP). The objective is to orientate on the significance of the Guidelines so as to promote compliance among all stakeholders; raise understanding of their roles and functions relative to the exercise of workers’ rights and trade union activities; improve coordination within the Government in handling labour disputes; strengthen the networking links and engagement between workers and employers; and contribute to tripartite prevention and monitoring of violence against workers and unions.
3. 658. On the part of the military, since the signing of the Guidelines on the conduct of the DOLE, DILG, DND, DOJ, AFP and PNP in May 2012, the AFP adopted a two-pronged approach to mainstream the Guidelines in its rank and file. The first approach is education and training of individual soldiers when they undertake their respective career courses in the military by taking up the Guidelines. The second is advocacy and information dissemination campaigns for formed units in the operational and tactical settings. Thus far, all units have been very supportive and have undertaken the two-pronged programs with zeal and resolve to uphold workers’ rights vis-à-vis Conventions Nos 87 and 98. The efforts have been directed by the AFP Chief of Staff, with the Office of the Deputy Chief of Staff for Education and Training, J8, the AFP Human Rights Office, and the Philippine Army, Philippine Air Force and Philippine Navy Human Rights Offices at the helm. For the current 2013 Operational Thrusts of the AFP, this matter is generally stated in the Fragmentary Order 01-2013 dated 18 February 2013 to the Internal Peace and Security Plan “BAYANIHAN” as part of the imperatives during military combat and non-combat operations/activities. Likewise, it is an integral part of the AFP efforts towards enhancing the culture of human rights, international humanitarian law and the rule of law.
4. 659. On the ground, soldiers who benefit from these efforts exude commitment and compliance to the Guidelines. In fact, they are collectively one with the directive that the AFP must be insulated from any labour disputes and/or issues unless specifically requested in writing by the DOLE, or unless there is actual violence to protect persons and communities from untoward loss of lives or limbs and prevent the escalation of violence. They also have been clarified on the provisions to prevent undue labelling/tagging, involvement or presence during certification elections, and establishment of detachments or patrol bases within the proximity of such activity or incidence of labour dispute. By and large, the AFP soldiers, officers and enlisted personnel alike, welcome and are very positively receptive of the AFP Guidelines. The AFP is intensifying its efforts towards education and training and advocacy and information dissemination campaigns through coordination and consultation with the DOLE and the ILO. A series of trainings and advocacy projects shall be conducted starting May 2013 up to the end of the current year. These will be undertaken within the Unified Command levels with the Human Rights Officers and/or staff officers from Operations or Civil-Military Operations Staff Offices in attendance. With the inclusion of these in the aforesaid Fragmentary Order 01-2013, the AFP continuously embarks on these efforts.
5. 660. Since their issuance, the Guidelines served as an important instrument prescribing the conduct to be observed by implementers and stakeholders during labour disputes. In instances where the Guidelines have been invoked, they so far have been successful in ensuring that no untoward incident or violence attended the concerted activities of workers. On the part of the PNP, the Joint DOLE–PNP–PEZA Guidelines have so far been very effective and have actually resulted in zero labour dispute-related violence, both within and outside the economic zones, and in the effective coordination of all stakeholders during labour disputes.
6. 661. Under the Technical Cooperation programme “Promoting the effective recognition and implementation of the fundamental rights of freedom of association and collective bargaining in the Philippines”, the strengthening of the operational capacity of the PNP and the AFP to foster an enabling environment for the enjoyment of constitutionally guaranteed civil liberties and trade union rights, capacity-building and advocacy programs are currently being carried out. In line with the Government’s commitment towards ending police and military interference during trade union campaigns and labour disputes, the DOLE, PNP, PEZA, AFP and LGUs agreed to conduct joint seminars on the effective implementation of the two sets of guidelines. Further area-wide advocacies for the military, police and sectoral partners shall be conducted from March to December 2013 by using ILO training modules and conducting intensive lectures and discussions.
7. 662. In addition, in coordination with the ILO, a training of trainers on international labour standards, freedom of association and collective bargaining was conducted on 21–25 January 2013 to inculcate common understanding and interpretation of international labour standards, specifically on the right to freedom of association, collective bargaining, concerted actions and other trade union activities, among DOLE implementers. Twenty-one participants from DOLE and PEZA were trained to act as trainers on these areas. Other activities to be conducted from March to December 2013 using ILO training modules, include the following: (i) four two-day trainings for DOLE and PEZA implementers; (ii) capacity-building workshops for DOLE officials on dispute prevention and settlement; (iii) second batch of seminar workshops on the improved use of international labour standards at the national level by lawyers, arbitrators, conciliators and mediators; (iv) area-wide orientation seminars on international labour standards, freedom of association and collective bargaining for DOLE labour law compliance officers; and (v) orientation and awareness-raising seminars on the same subjects for law students of selected universities. The ILO modules shall subsequently be included in the training program of the PNP and AFP on human rights and serve as a requirement for application or renewal of license for private security personnel and security guards.

C. The Committee’s conclusions

1. 663. The Committee notes that the present case concerns allegations of the denial of the right to organize, strike and collective bargaining in the Philippines export processing zones (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. 664. The Committee notes that some issues mentioned in the Government’s reply are being addressed in Case No. 2528 and were previously examined by the Committee in its 364th Report, paragraphs 913–970. These elements, which will not be raised in the present case, concern: (i) the killings of Jesus Butch Servida (union President of Samahan ng Manggagawa sa EDS Mfg., Inc.-Independent (SM-EMI-Ind)) and Gerardo Cristobal (former President and organizer of SM-EMI-Ind) on 11 December 2006 and on 10 March 2008, respectively; and (ii) the abduction of Normelita Galon and Aurora Afable, President and Shop Steward of Kaisahan ng Manggagawa sa Phils. Jeon Inc.-Independent on 5 August 2007.
3. 665. The Committee notes the Government’s indication that the Strengthening Workers’ Rights to Self-Organization Bill, amending articles 234, 235, 236, 237 and 270 of the Labour Code, was approved by the House of Representatives but that the Senate version stalled at second reading. The Committee also notes that the 15th Congress is already in recess, and that the 16th Congress convenes in July 2013. The Committee expects that this bill, which removes the 20 per cent minimum membership for registration of independent labour organizations, reduces the required membership of local unions for federation registration, and removes the required government authorization on receipt of foreign funding, will be adopted in the near future. It urges the Government to keep it informed on any progress made in this regard.
4. 666. Concerning the concrete allegations of interference of LGUs into internal union affairs at the Nagkakaisang Manggagawa sa Hoffen Industries-OLALIA factory (Hoffen), Samahan ng Manggagawa sa Mariwasa Siam Ceramics, Inc. (Siam Ceramics), Samahan ng Manggagawa sa EDS Mfg, Inc. (EDS Inc.) and Golden Will Fashion Phils., the Committee notes that the Government indicates with regard to the latter company that: (i) the NTIPC MB resolved to refer the case to the appropriate agencies for further investigation on the alleged interference of local government officials (including the Office of the Provincial Governor under the Cavite Industrial Peace Advisory Group) who allegedly tried to suppress union organizing in favour of the management, and validation of the PEZA report; (ii) according to the PEZA, when the union Golden Will Fashion Workers Organization-Independent had been registered in the company, the management had invited the mayor to lecture on the labour management committee; and (iii) the company is closed and its PEZA registration was cancelled in 2009. The Committee takes due note of this information and requests the Government to keep it informed regarding the outcome of the further investigation conducted on the alleged interference of local government officials. With respect to the remaining three companies mentioned above, the Committee once again requests the Government to keep it informed of the status of the motu proprio investigations that were to be conducted by the CHR into the allegations of Government interference in union affairs and expects that the Government will soon be able to report progress in the resolution of these cases. Recalling 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 of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 859], the Committee also requests the Government to keep it informed of the measures taken or envisaged to ensure full respect of this principle in the future.
5. 667. With respect to the complainant’s allegations that on various occasions, enterprises in the EPZs closed down, either the whole company or strategic departments where most unionists were located, following the recognition of a union (in particular Sensuous Lingerie, Golden Will Fashion Phils. and Goldilocks), the Committee notes that the Government indicates concerning the latter company that: (i) the complaint filed by the union for unfair labour practice, illegal dismissal, and moral and exemplary damages was resolved by the Labour Arbiter in favour of the union on 27 January 2011; (ii) on 18 July 2011, the NLRC reversed this decision and dismissed the complaint; (iii) the union elevated the case to the Court of Appeals; (iv) on 19 June 2012, the petition for certiorari was denied and dismissed for lack of merit, since the Court considered that the decision to close business is a management prerogative exclusive to the employer, subject to compliance with section 283 of the Labour Code, which recognizes the company’s cessation of business operation as an authorized cause for dismissal; and that, in the particular case, petitioners’ services were validly terminated after cessation and closure of business due to the non-renewal of the private respondents’ franchise agreement expired on 17 November 2008, owing to the franchisee’s continuing inability to conform to the company’s standards by undertaking a renovation of the store; and (v) a motion for reconsideration was denied on 25 September 2012. The Committee takes due note of this information.
6. 668. The Committee also notes that, concerning Golden Will Fashion Phils., the Government merely indicates that the NTIPC-MB resolved to refer the case to the appropriate agencies for further investigation on the alleged interference of local government officials, and that the company is closed and its PEZA registration cancelled since 2009. Considering that, while the genuine closure or restructuring of companies is not contrary to freedom of association principles, the closure or restructuring and the 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 once again requests the Government to provide information concerning the motu proprio investigations that were to be conducted by the CHR into the relevant allegations concerning the aforementioned company as well as Sensuous Lingerie, and expects that the Government will make efforts to ensure a speedy resolution of these cases by the agencies concerned. It requests the Government to keep it informed in this regard.
7. 669. As regards the allegations of anti-union discrimination in the form of illegal dismissals of trade union members in various enterprises, the Committee notes the information provided by the Government concerning NMCW, according to which, after its closure in February 2007, an insolvency case has been filed by the company, the NTIPC-MB resolved to refer the case to PEZA for monitoring of the insolvency case and of the distribution of the company’s assets (auctioned for about PHP1.6 million), and the court has drawn up a report on the distribution of the money to the workers claimant in the case, which is to be transmitted to the NTIPC-MB. While taking due note of this information, 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].
8. 670. In view of the principles enunciated above, the Committee once again requests the Government to carry out independent investigations of the dismissals which occurred at Daiho Philippines Inc., Hanjin Garments, Asia Brewery, Anita’s Home Bakeshop and NMCW and, if it finds that they constitute anti-union acts, to take measures to ensure the reinstatement of the workers concerned without delay. If reinstatement is not possible for objective and compelling reasons (as in the case of NMCW due to closure of business), the Government should ensure that the workers concerned are paid adequate compensation which would represent a sufficiently dissuasive sanction for anti-union dismissals. In addition, the Committee urges the Government to keep it informed of any relevant judgment handed down in the case of Anita’s Home Bakeshop, and in particular of the decisions of the NLRC RAB VII or the NLRC Division 4 in Cebu City. The Committee further requests the Government to keep it informed of the motu proprio investigations that were to be conducted by the CHR into the abovementioned allegations. It expects that the Government will do its utmost to ensure a speedy and equitable resolution of all cases by the agencies concerned.
9. 671. Furthermore, in the absence of information provided by the Government, the Committee once again requests the Government, in respect of Enkei Philippines, to take the necessary steps so that, pending the outcome of any appeal proceedings instituted by the company, 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 2007 NLRC order for reinstatement; 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-union dismissals. Similarly, in the case of Sun Ever Lights, the Committee once again requests the Government to keep it informed of any developments in regard to the motion for writ of execution of the 2008 NLRC reinstatement order pending with the NLRC.
10. 672. With respect to the alleged denial of the right to strike, the Committee further notes the Government’s indication that: (i) the legislative measure seeking to address the alleged arbitrariness in the exercise of the assumption of jurisdiction power of the Secretary of Labor and Employment has passed second reading at the Senate while the House of Representatives’ version has stalled at the committee deliberation stage; (ii) there is a very slim chance for this bill gaining approval at the 15th Congress as it already is in recess until June 2013; (iii) DOLE Department Order No. 40-G-03, the interim measure providing implementing rules on the exercise of the assumption of jurisdiction power of the Secretary of Labor and Employment to address its claimed arbitrariness, has been complemented by the implementation of the SEnA programme or DOLE Department Order No. 107-10, providing for a 30-day mandatory conciliation–mediation service on all individual and collective labour and employment disputes as the first approach; (iv) the use of intensive conciliation–mediation has been effective in the settlement of collective disputes as it reduced resort to compulsory mode of dispute resolution including that of assumption of jurisdiction; (v) the legislative measure to institutionalize the use of conciliation–mediation under SEnA as prior resort in all labour disputes by amending article 228 of the Labour Code and the Strengthening of Tripartism Bill have been enacted into law (Republic Acts Nos 10396 and 10395, signed on 14 March 2013); (vi) these two legislative measures provide for expeditious and non-adversarial venues for dispute settlement and will, according to the Government, eventually render resort to assumption of jurisdiction unnecessary; (vii) the success of these enactments is largely due to the fact that department orders or administrative issuances crafted through the NTIPC were issued and implemented prior to their filing in Congress; (viii) the same approach will be used in securing a consensus for the proposed assumption of jurisdiction or essential services bill that will be re-filed in the 16th Congress that convenes in July 2013; (ix) tripartite discussion at the TEC of the NTIPC has started on 10 April 2013 to come out with an administrative issuance containing a list of industries indispensable to the national interest according to the essential services criteria of the ILO and providing for conditions for the exercise of the Secretary of Labour and Employment’s assumption power.
11. 673. The Committee expects that the ongoing legislative reform and the steps taken within the framework of the NTIPC towards the elaboration of an administrative issuance will advance expeditiously and successfully and urges the Government to continue to keep it informed in this regard. Recalling 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], the Committee expects that the Government will take the necessary measures without delay to ensure the full respect for the trade union rights of EPZ workers in practice, including the right to strike.
12. 674. In relation to the allegations of blacklisting and vilification of union members at Daiho Philippines and Anita’s Home Bakeshop, the Committee had previously noted the Government’s indication that these cases had been referred to the concerned agencies (Court of Appeals, NLRC, CHR, PEZA, DOLE, DILG, Supreme Court and DOJ) for appropriate action and immediate resolution. In the absence of further information provided by the Government in this regard, the Committee reiterates 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 that 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 once again requests the Government to keep it informed of the outcome of any inquiries conducted by the CHR into these allegations and to make every effort to ensure the swift investigation and resolution of these cases.
13. 675. With respect to the alleged arrest, detention and false criminal charges filed against trade union leaders, the Committee welcomes the information according to which, in order to ensure that labour disputes are not converted into criminal cases, the DOLE is coordinating with the DOJ for an issuance reinforcing the provision of Circulars Nos 15, series of 1982, and 9, series of 1986, requiring fiscals/prosecutors and other government prosecutors to secure clearance from the DOLE and/or the Office of the President before taking cognizance for preliminary investigation and filing in court of cases arising of, or related to, labour disputes (including with allegations of violence, intimidation, etc.).
14. 676. As to the allegations of false criminal charges filed against labour leaders and unionists at the onset of union formation, or during collective bargaining negotiations, picket protests and strikes, at the companies Sensuous Lingerie, Kaisahan ng Manggagawa sa Phils. Jeon Inc., Golden Will Fashion, Asia Brewery and Hanjin Garments, the Committee notes the information forwarded by the Government concerning the latter company, according to which the case concerning the alleged filing of criminal charges against Christopher Capistrano, et al., was covered by resolution No. 3, series of 2012, and, pursuant to information from the DOJ, the direct assault charge filed against Capistrano, et al., had already been dismissed on 10 March 2011. The Committee takes due note of this information.
15. 677. Concerning Asia Brewery, the Committee notes the Government’s indication that: (i) criminal case No. 10061 (People of the Philippines v. Bonifacio Fenol, et al.), involving criminal charges for throwing stones on the group of policemen who tried to pacify them during the strike that transpired in front of the company on 4 February 2009, was already dismissed on 11 August 2011; and (ii) the NTIPC-MB is still monitoring criminal case No. 9338 (People of the Philippines v. Rodrigo Perez, et al.), involving criminal charges with malicious mischief for smashing two plastic windows and puncturing all tires of a shuttle bus at the company on 4 October 2004; and the case was still pending before the Municipal Trial Court of Cabuyao, Laguna, where the new judge who had taken over needed to review the records of the case and a hearing was called for clarification purposes. 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]. Emphasizing that the events underpinning the charges against Rodrigo Perez, et al. date back already nine years, the Committee urges the Government to keep it informed of the motu proprio investigation that was to be conducted by the CHR, and to do its utmost to report progress in investigating this case without further delay. The Committee once again requests the Government to ensure that all relevant information is gathered in an independent manner, and, should it be determined that the persons employed in the abovementioned companies were arrested in relation to their trade union activities, to take the necessary measures to ensure that all charges are immediately dropped. The Committee requests to be kept informed of the developments, including any judgment handed down.
16. 678. As regards the serious allegations of involvement of the army and police (units of the PNP, Regional Special Action Forces–PNP, and/or AFP Special Warfare Group (SWAG) or security guards sent by the PEZA and the municipal government) to intimidate and/or disperse workers during protests, strikes or on picket lines, at Sun Ever Lights, Sensuous Lingerie, Asia Brewery and Hanjin Garments, which in the latter company’s case resulted in the death of one protester, the Committee had previously noted the Government’s indication that these cases had been referred to the agencies concerned (Court of Appeals, NLRC, CHR, PEZA, DOLE, DILG, Supreme Court or DOJ) for appropriate action and immediate resolution, and notes that no information has since been provided by the Government in this regard.
17. 679. 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]. The Committee therefore once again requests the Government to take all necessary measures for an independent investigation to be carried out into 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 motu proprio investigations that were to be conducted by the CHR and to make all efforts to ensure timely progress in the resolution of these cases. Recalling also that, 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], the Committee once again requests the Government to establish without delay an independent judicial inquiry and proceedings before the competent courts as soon as possible, with regard to the allegation of the killing of a protester at Hanjin Garments, with a view to shedding full light on to 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 Government will do its utmost to ensure the speedy investigation and judicial examination of this case and requests to be kept informed in this respect.
18. 680. Concerning the allegations of a prolonged presence of the army inside the workplaces in the enterprises Sun Ever Lights and Siam Ceramics, the Committee had previously noted the Government’s indication that these cases had been referred to the agencies concerned (Court of Appeals, NLRC, CHR, PEZA, DOLE, DILG, Supreme Court or DOJ) for appropriate action and immediate resolution. In the absence of further information, the Committee requests the Government to keep it informed in this respect.
19. 681. With a view to giving instructions to the law enforcement authorities so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations, the Committee notes with interest the Government’s indications that: (i) in order to cascade the 2011 Joint 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, four area-wide orientation seminars were held at the end of 2011 for members of the RTIPCs and Regional Coordinating Councils, so as to foster a common understanding on the Guidelines, understand the function and jurisdiction of DOLE, PNP and PEZA and promote their close coordination; (ii) as regards the 2012 Guidelines on the conduct of the DOLE, DILG, DND, DOJ, AFP and PNP relative to the exercise of workers’ rights and activities, four one-day advocacy workshops are scheduled from September to December 2013 for the sectoral/tripartite partners (DOLE, RTIPCs, RTIPC-Monitoring Bodies, DILG especially LGUs, DND, DOJ, AFP and PNP), so as to orientate on the significance of the Guidelines, promote compliance, deepen understanding of roles and functions and improve coordination when handling labour disputes; (iii) since the signing of the latter Guidelines, the AFP adopted a two-pronged programme to mainstream the Guidelines in its rank and file, namely education and training of individual soldiers when they undertake their respective career courses in the military, and advocacy and information dissemination campaigns for formed units in the operational and tactical settings, which, so far, has been undertaken with zeal and resolve; (iv) for the current 2013 operational thrusts of the AFP, this matter is generally stated in the Fragmentary Order 01-2013 dated 18 February 2013 to the Internal Peace and Security Plan “BAYANIHAN” as part of the imperatives during military combat and non-combat operations/activities; (v) soldiers are very positively receptive of the Guidelines, and have been made aware of the directive that the AFP must be insulated from labour disputes unless specifically requested in writing by the DOLE or unless there is actual violence to protect persons and communities from untoward loss of lives or limbs and prevent the escalation of violence, as well as of the provisions to prevent undue labelling/tagging, involvement or presence during certification elections, and establishment of detachments or patrol bases within the proximity of such activity or incidence of labour dispute; (vi) a series of trainings and advocacy projects are scheduled from May to December 2013; and (vii) since their issuance, the two sets of Guidelines have been effective in preventing violence against workers and unions during labour disputes.
20. 682. The Committee requests the Government to continue to keep it informed with regard to the capacity-building activities carried out in 2013 with a view to giving instructions to the law enforcement authorities so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations as well as their impact. It further requests the Government to supply copies of the PNP Guidelines on the accountability of the immediate officer for the involvement of his subordinates in criminal offenses, mentioned in the previous examination of the case.
21. 683. As regards its previous recommendation that the Government indicate the specific measures envisaged to ensure the full and effective exercise of trade union rights in the EPZs, the Committee welcomes the Government’s general assurances that the common issues raised in the present case, such as illegal dismissal, interference of local government units with union affairs, criminalization and assault in the picket lines, occurred under the past administration, and that, at present, no violence occurs in the economic zones. The Committee notes with interest the Government’s indication that these positive developments can be attributed to the effective implementation of the Guidelines, to the capacity-building activities being conducted in this respect (as outlined above) as well as to the capacity-building activities being conducted on freedom of association, collective bargaining and international labour standards in general, which have been scheduled throughout the year 2013 and are effective in educating all the stakeholders (including the police and officials of the local government units) as regards their respective responsibilities and limitations relative to labour disputes and exercise of trade union rights. The Committee requests the Government to continue to keep it informed with regard to the upcoming capacity-building activities as well as their impact on the alleged implementation of a “no union, no strike” policy in the country’s EPZs. It also requests the Government to provide statistics of complaints on anti-union discrimination in the EPZs.