Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 391, Octobre 2019

1. 507. The Committee last examined this case (submitted in March 2015) at its October 2018 meeting, when it presented an interim report to the Governing Body [see 387th Report, paras 611–628 approved by the Governing Body at its 334st Session (October–November 2018)].
2. 508. The Government provides its observations in communications dated 31 May and 1 October 2019.
3. 509. 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. 510. At its October 2018 meeting, the Committee made the following recommendations [see 387th Report, para. 628]:
   • (a) The Committee firmly expects that the initiatives undertaken (adoption of operational guidelines for investigating and monitoring mechanisms, strengthening cooperation among them, capacity building of state actors and other stakeholders, etc.) will significantly contribute to swift and efficient investigation and resolution by the relevant mechanisms with a view to putting an end to extrajudicial killings, harassment and other forms of interference in the exercise of freedom of association, and that labour activity or trade union function would be sufficient evidence to give rise to an in-depth review of the possible motivation.
   • (b) The Committee firmly expects that the measures taken with regard to improving the knowledge of human rights and freedom of association among the military, the police and other state actors will be sustained and will significantly contribute to raising awareness of trade union rights in the army and the police. The Committee expects that the Government will take all necessary further measures to ensure protection for legitimate trade union activities. The Committee expects once again that the Government will take the necessary accompanying measures, including the issuance of appropriate high-level instructions and training to: (i) ensure the strict observance of due process guarantees in the context of any surveillance, interrogation or other operations by the army and police in a way that guarantees that the legitimate rights of workers’ organizations can be exercised in a climate that is free from violence, pressure or threats of any kind against their leaders and members; and (ii) to restrict as far as possible prolonged military presence inside workplaces which is liable to have an intimidating effect on the exercise of trade union rights. The Committee requests the Government to keep it informed of any developments in this regard.
   • (c) The Committee requests the Government once again to take the necessary measures to ensure the full and swift investigation and resolution of the alleged acts of harassment concerning Rogelio Cañabano, Perlita Milallos and Musahamat union members and activists, even if not committed by state actors, and to report on any investigation conducted and remedies applied, including by the IAC and the AFP-HRO, as well as any forthcoming NTIPC-MB resolutions in the above cases.
   • (d) With regard to the pending case concerning the RDEU, the Committee requests the Government to clarify whether the alleged acts of harassment form part of the ongoing judicial proceedings and, if not, requests it once again to take the necessary measures to ensure the full and swift investigation and resolution of these allegations. The Committee also requests the Government to provide a copy of the relevant NLRC resolutions related to the termination of RDEU members and to keep it informed of the outcome of the ongoing appeal procedures.

B. The Government’s reply

1. 511. In its communications dated 31 May and 1 October 2019, the Government indicates that the operational guidelines and process structures of the National Tripartite Industrial Peace Council-Monitoring Body (NTIPC-MB), the Regional Tripartite Monitoring Bodies (RTMBs), the Administrative Order No. 35 Inter-Agency Committee (IAC) and the National Monitoring Mechanism (NMM) were reviewed, with the end view of addressing the gaps and blockages in obtaining substantial progress specific to labour-related cases of extrajudicial killings or violations of Conventions Nos 87 and 98.
2. 512. It also states that as part of the Department of Labour and Employment (DOLE)-ILO-EU Generalized System of Preferences Plus (EU GSP+) Project, activities and initiatives are taken to enhance the knowledge and capacities of the concerned state actors, including the police, the military, local chief executives, as well as the social partners, on the principles and application of Conventions Nos 87 and 98. In November 2018, a Multisectoral Trainers’ Training on Freedom of Association and Collective Bargaining was held in Pampanga, which was attended by 32 representatives from different government agencies, including the Philippine Economic Zone Authority (PEZA), the Department of the Interior and Local Government (DILG), the Department of National Defense (DND), the Department of Justice (DOJ), Armed Forces of the Philippines (AFP), the Philippine National Police (PNP), and the Commission on Human Rights (CHR). The activity aimed at inculcating the various stakeholders and socials partners with common understanding and interpretation of international labour standards, specifically on the right to freedom of association and collective bargaining, as well as on the roles, functions and mechanisms that need to be observed relative to the exercise of workers’ rights and activities, such as the Joint DOLE-PNP-PEZA Guidelines on the Conduct of PNP Personnel, Economic Police and Security Guards, Company Security Guards and Similar Personnel During Labour Disputes and the Guidelines on the Conduct of the DOLE, DILG, DND, DOJ, AFP and PNP Relative to the Exercise of Workers’ Rights and Activities. The capacitated social partners and stakeholders may now be tapped as resource persons and advocates on freedom of association and collective bargaining, delivering lectures and learning sessions, particularly on existing guidelines governing the engagement of various social partners and stakeholders during labour disputes vis-à-vis the principles of freedom of association and collective bargaining, as it may be applied in their respective organizations.
3. 513. Parallel to this, the Government is working on the development of sector-specific tools: (i) the Workers’ Training Manual on Freedom of Association intended to enhance capacities of workers’ representatives to participate in existing monitoring mechanisms on violations of workers’ civil liberties and trade union rights; and (ii) the Diagnostics of Compliance with Labour Standards: A Checklist for Small Enterprises – an employers’ tool for diagnosing the level of compliance with labour standards among small enterprises and for providing concrete remedies to address compliance issues. Furthermore, the DILG, together with the Local Government Academy, the ILO Country Office and the DOLE, is working to explore possible incorporation of international labour standards, particularly freedom of association and collective bargaining, and the Guidelines in the regular orientations and training of local chief executives. The CHR, with the assistance of a consultant engaged by the ILO, is also in the process of formulating and finalizing its own freedom of association training module.
4. 514. Apart from these agency and sector-specific tools and modules, a freedom of association e learning module is being finalized as part of the DOLE’s Labour and Employment Education Services (LEES). Building upon existing documents and materials from previous initiatives, the e-learning module will include topics on: international labour standards and labour rights; ILO principles on freedom of association and collective bargaining; the Philippine context – the right to self-organization; tripartite monitoring bodies on the application of international labour standards and other related investigative and monitoring mechanisms; and guidelines relative to the exercise of workers’ rights, particularly the right to freedom of association and collective bargaining. Guidelines governing the conduct that must be observed during the exercise of workers’ rights and activities are also being reviewed for amendment and updating.
5. 515. The Government further indicates, with regard to the alleged cases of harassment of Rogelio Cañabano, Perlita Milallos and Musahamat union members and activists, that it continues to coordinate with the concerned law enforcement agencies for the swift investigation and resolution of the case and that significant progress has been made in this regard. It also reiterates information provided previously on the case of Mr Rogelio Cañabano. As for the case concerning death threats against Mr Vicente Barrios, the Government states that a criminal case for frustrated murder has been filed and an arrest warrant has been issued against the suspects by the Regional Trial Court Branch 3, Nabunturan in the Compostela Valley Province.
6. 516. The Government also informs that in the case involving several officers and members of the RMN Davao Employees’ Union (RDEU), the employer  and the National Labour Relations Commission (NLRC) Eighth Division, the NLRC upheld the validity of the dismissal of several RDEU officers and members and the Court of Appeals upheld the NLRC resolutions declaring the strike conducted by the RDEU as illegal. The Government recalls and clarifies that: (i) the RDEU went on strike in October 2014 on three grounds: the employer’s refusal to bargain, union busting and unfair labour practices, following which the employer filed a petition to declare the strike illegal; (ii) while the petition was first dismissed by the labour arbiter in May 2015, it was reversed in October 2015 by the NLRC which found that the strike was illegal and that there was no evidence to support a finding of unfair labour practices or union busting, but there was evidence that union officers and employees perpetrated illegal acts in the course of the strike, as a result of which there was merit to dismiss the officers and union members from service; (iii) the RDEU filed a petition for certiorari before the Court of Appeals which was denied in March 2018 for lack of merit; (iv) on the employer’s refusal to bargain, the Court of Appeals pointed out that: the failure to reach agreement after negotiations have continued for a reasonable period does not establish a lack of good faith; the series of letters from both parties attest to the fact that the employer was open to bargaining with the RDEU, while standing firm on the manner in which such negotiations should be conducted; there was no bargaining deadlock to warrant the union’s resort to strike and the negotiation has not come to a point where there was an impasse, rather both parties were making concessions in keeping with the true spirit of negotiations, when the union decided to conduct a strike; (v) on union busting and unfair labour practices, the Court of Appeals stated that: contracting out services is not illegal per se, it is an exercise of business judgment or management prerogative and absent proof that the management acted in a malicious or arbitrary manner, the Court will not interfere with the exercise of judgment by the employer; since there had been no union busting, the NLRC was correct in holding that the employer did not violate pertinent provisions of the collective bargaining agreement; and (vi) on the legality of the strike and dismissal of union officers and members, the Court of Appeals considered that: a strike declared on the basis of grievances which have not been submitted to the grievance committee as stipulated in the collective bargaining agreement is premature and illegal; the union should have honoured its manifestation before the National Conciliation and Mediation Board to maintain the status quo with the employer and the failure of the union to heed its commitment is reflective of bad faith; the union officers were in clear breach of the Labour Code when they knowingly participated in the illegal strike and in the commission of illegal acts during the strike (barricading the entrance of the employer’s transmitting site, obstructing ingress and egress from the transmitter site, intimidating non-striking employees, preventing to carry out the lawful purpose for entering the premises which is tantamount to obstruction of free ingress and egress from the employer’s premises, obstructing public thoroughfares and harassing the employer’s officers); (vii) a motion for reconsideration was filed by the union but was denied in July 2018; (viii) in June 2019, the RTMB-Region XI reported that the police investigator had conducted an interview with the members of the RDEU; and (ix) the case has been elevated to the Supreme Court.

C. The Committee’s conclusions

1. 517. The Committee recalls that the present case concerns allegations of harassment, intimidation and threats against trade union leaders and members by the armed forces in collusion with private companies.
2. 518. With regard to the initiatives undertaken to improve the functioning of the investigating and monitoring mechanisms with a view to putting an end to extrajudicial killings and other forms of interference in the exercise of freedom of association (recommendation (a)), the Committee notes that the Government reiterates that the operational guidelines and process structures of the NTIPC-MB, the RTMBs, the IAC and the NMM were reviewed so as to address gaps and blockages in obtaining substantial progress specific to labour-related cases of extrajudicial killings or violations of Conventions Nos 87 and 98. The Committee also observes from the information submitted by the Government to the 2019 Committee on the Application of Standards that following this review, recommendations were issued to help address the identified gaps and blockages and that these recommendations will be taken up by the concerned agencies for consideration and possible implementation. The Government also informed the Committee on the Application of Standards that, in the spirit of social dialogue and tripartite engagement, trade unions’ and employers’ representatives were enlisted as deputized labour inspectors, that there were 16 Regional Tripartite Monitoring Bodies across the country ready to be mobilized anytime and anywhere when needed and that such mobilization at the regional level brought about an immediate response and concrete appropriate action. Welcoming the Government’s engagement to further review the functioning of the existing investigating and monitoring mechanisms and observing that these matters are being followed up by the Committee of Experts, the Committee expects that the recommendations addressing the current gaps and blockages will be rapidly implemented and that the measures and initiatives undertaken by the Government will significantly contribute to swiftly and efficiently investigating and addressing pending labour-related cases of extrajudicial killings and other violations of the principle of freedom of association by the relevant mechanisms, as well as preventing the occurrence of such acts in the future. The Committee requests the Government to keep it informed of any developments in this regards.
3. 519. Concerning capacity-building and awareness-raising on human rights and freedom of association among state actors (recommendation (b)), the Committee notes the detailed information provided by the Government on a number of activities, in particular: (i) a Multisectoral Trainers’ Training on Freedom of Association and Collective Bargaining in November 2018 attended by representatives of different government agencies and the social partners; (ii) development of a training manual for workers’ representatives in order to enhance their capacities to participate in existing monitoring mechanisms on violations of workers’ civil liberties and trade union rights; (iii) development of a tool for employers for diagnosing the level of compliance with labour standards of small enterprises and for providing concrete remedies to address compliance issues; (iv) incorporation by the DILG of international labour standards, particularly freedom of association and collective bargaining, as well as of the relevant guidelines, in the regular orientations and training of local chief executives; (v) formulation and finalization of a training module on freedom of association at the HRC; and (vi) development of a freedom of association e-learning module at the DOLE LEES, including on, among others, international labour standards, principles of freedom of association and collective bargaining, the right to self-organization and tripartite monitoring bodies and other investigating and monitoring mechanisms. The Committee further observes, from the information submitted by the Government to the 2019 Committee on the Application of Standards, that: (i) additional capacity-building trainings of social partners, prosecutors, enforcers and other relevant actors, especially in criminal investigations, took place in January and February 2019; (ii) the DOLE has repeatedly called on the AFP and PNP to ensure the observance of the Guidelines on the Conduct of the DOLE, DILG, DND, DOJ, AFP and PNP Relative to the Exercise of Workers’ Rights and Activities; (iii) the AFP has reaffirmed its commitment to the Guidelines and issued directives to all military units to respect the rights of workers; and (iv) as part of the commitment of the AFP and the PNP to integrate the Labour Code and the Guidelines in their educational programmes, lectures and orientations on freedom of association and trade unionism were held in February and May 2019. Noting these developments with interest, the Committee strongly encourages the Government to continue to elaborate training programmes and provide capacity-building activities to members of the armed forces, the police and other relevant state actors so as to ensure adequate and effective protection for legitimate trade union activities. The Committee also firmly expects that improved knowledge and awareness of human and trade union rights among state officials will significantly contribute to: (i) ensuring the strict observance of due process guarantees in the context of any surveillance, interrogation or other operations by the army and police in a way that guarantees that the legitimate rights of workers’ organizations can be exercised in a climate that is free from violence, pressure or threats of any kind against their leaders and members; and (ii) restricting as far as possible prolonged military presence inside workplaces which is liable to have an intimidating effect on the exercise of trade union rights. The Committee requests the Government to keep it informed of any developments in this regards.
4. 520. With regard to the alleged acts of harassment of Rogelio Cañabano, Perlita Milallos and Musahamat union members and activists (recommendation (c)), while noting the Government’s indication that it continues to coordinate with the concerned law enforcement agencies for the swift investigation and resolution of the case and that significant progress has been achieved, the Committee regrets that the Government does not provide any specifics as to the current status of the investigations but simply reiterates some of the previously provided information, especially considering that these serious allegations (harassment by the military through frequent military visits and interrogation about union function and activities) date back to 2014. In this regard, the Committee observes that the Committee on the Application of Standards also noted with concern the lack of investigation in relation to numerous allegations of murders of trade unionists and anti-union violence and requested the Government to take effective measures to prevent violence in relation to the exercise of workers’ and employers’ organizations legitimate activities and to immediately and effectively undertake investigations into such allegations with a view to establishing the facts, determining culpability and punishing the perpetrators. Recalling that acts of intimidation and physical violence against trade unionists constitute a grave violation of the principles of freedom of association and the failure to protect against such acts amounts to a de facto impunity, which can only reinforce a climate of fear and uncertainty highly detrimental to the exercise of trade union rights [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 90] and in view of the lack of updated information in this regard, the Committee urges the Government to take the necessary measures to ensure the full and swift investigation and resolution of the alleged acts of harassment of the above trade union leaders and members of KMU-affiliated unions, whether committed by state or non-state actors, and to provide a detailed report on the outcome of any investigation conducted and remedies applied, including by the IAC and the AFP human rights officer, as well as any forthcoming NTIPC-MB resolutions in the above cases. The Committee further observes with respect to the case concerning death threats against Mr Vicente Barrios that while it has been previously reported that the case had been settled amicably, the Government now informs that a criminal case for frustrated murder has been filed and an arrest warrant has been issued against the suspects. The Committee trusts that the case will be examined rapidly and requests the Government to inform it of the outcome of the judicial proceedings.
5. 521. As to the case concerning the RDEU (recommendation (d)), the Committee notes that, according to the information provided by the Government, the Court of Appeals upheld, on the one hand, the validity of the dismissal of several RDEU officers and members due to their participation in an illegal strike and commission of illegal acts in the course of the strike and, on the other hand, found that there was no union busting or unfair labour practices, since contracting out services was a prerogative of the management and, in the absence of proof of malicious intent by the employer, it was not for the court to intervene in such matters, and that the case has been elevated to the Supreme Court. While noting the Court of Appeals’ reasoning and decision on the three grounds invoked by the RDEU to go on strike (refusal of the employer to bargain, union busting and unfair labour practices), the Committee recalls that the allegations initially submitted in this case concerned vilification, threats and harassment of RDEU members by the management in September–October 2014, allegations that do not appear to have been fully addressed in the judicial proceedings, as recounted by the Government. The Committee therefore requests the Government once again to clarify whether these allegations formed part of the concluded judicial proceedings and, should this not be the case, to take the necessary measures to ensure that they are swiftly examined and, if proven true, adequately remedied by one of the available investigating, monitoring or judicial mechanisms. The Committee also requests the Government to provide the Court of Appeals’ decision from March 2018 and to inform it of the outcome of the proceedings before the Supreme Court.