Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Philippines (Ratification: 1953)

The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2022, referring to matters addressed below and alleging continued and serious violations of workers’ civil liberties and freedom of association rights. The Committee requests the Government to provide its reply thereto.

Tripartite roadmap to implement the 2019 Conference Committee conclusions and achieve full compliance with the Convention. High-level tripartite mission. The Committee recalls from its previous comments that in June 2019, the Conference Committee on the Application of Standards (Conference Committee) requested a high-level tripartite mission to the country, which, until early 2022, could not take place due to the COVID-19 pandemic. In the meantime, a virtual exchange was organized by the Office between the Government, national social partners and designated representatives from the workers’ and employers’ groups of the Conference Committee in order to clarify any outstanding confusion in respect of the Conference Committee’s conclusions and to assist the Government and the social partners to take effective action for their implementation. In these circumstances, and in light of the conclusions of the virtual exchange transmitted by the ITUC, the Committee called on the Government to elaborate a plan of action, in consultation with the social partners, detailing progressive steps to be taken to implement the conclusions of the 2019 Conference Committee and to achieve full compliance with the Convention.

The Committee notes the Government’s indication in this respect that it has consistently conveyed its readiness to accept an in-person high-level tripartite mission to the country and that such a mission was scheduled for May-June 2022 but did not take place due to a change in political administration following the May 2022 presidential elections. The Government, however, confirms its availability to receive a mission in January-February 2023 and informs that, in the meantime, it has scheduled to undertake activities to implement some of the recommendations of the virtual exchange, including capacity-building of regional tripartite monitoring bodies (RTMBs), development of a tripartite roadmap on the promotion of freedom of association and civil liberties, and review of the Guidelines on the conduct of stakeholders relative to the exercise of workers’ rights and activities, all of which will be pursued through the institutionalized tripartite processes. The Government adds that the tripartite roadmap will take into account the recommendations of the 2021 virtual exchange report, as well as the 2019 Conference Committee conclusions, and will focus on efforts to ensure prompt and effective investigation of allegations of killings and assaults against trade unionists, strengthen tripartite monitoring bodies, further operationalize the Administrative Order No. 35 Inter-Agency Committee (IAC) and ensure effective protection of labour rights in ecozones. Taking due note of the measures and initiatives undertaken, but also noting the concerns raised by the ITUC that no progress has yet been achieved to implementthe conclusions of the 2019 Conference Committee, the Committee calls on theGovernment to rapidly and genuinely engage with the social partners in order to elaborate a constructive tripartite roadmap detailing progressive steps to be taken to implement the conclusions of the 2019 Conference Committee and to achieve full compliance with the Convention. The Committee looks forward to receiving the roadmap, as well as the reviewed Guidelines on the conduct of stakeholders, and expects both instruments to significantly contribute to addressing in a meaningful manner the long-standing concerns of serious violations of civil liberties in the exercise of freedom of association rights. The Committee reminds the Government of the possibility to avail itself of ILO technical assistance in this regard. The Committee also expects that the high-level tripartite mission requested by the 2019 Conference Committee will be able to visit the country in the first quarter of 2023, as suggested by the Government, and will be allowed to meet freely with a broad range of interlocuters.

Civil liberties and trade union rights

In its previous comments, the Committee had received repeated allegations of serious violations of basic civil liberties in the exercise of trade union rights submitted by the ITUC in 2019, 2020 and 2021, Education International (EI) in 2019 and jointly by EI, the Alliance of Concerned Teachers (ACT) and the National Alliance of Teachers and Office Workers (SMP-NATOW) in 2020. The Government had previously replied to some of these incidents and the Committee had, on several occasions, requested it to ensure that these allegations are duly investigated, and perpetrators punished to effectively prevent and combat impunity.

The Committee first notes the Government’s general update in this regard, informing about legal and administrative remedies and institutions available to persons or groups who allege that their civil liberties have been violated, as well as about other measures undertaken by the Government to address such allegations. The Committee notes, in particular, that the Government points to the active role of the Department of Labour and Employment (DOLE), informing that DOLE focal points in the 16 RTMBs assist aggrieved parties to access legal remedies available in cases of intimidation, harassment and red-tagging, including through securing affidavits and endorsing them to the appropriate office for verification and possible filing to entities with jurisdiction. The DOLE also sends communications to the armed forces, the police and companies, calling on them to ensure protection and promotion of workers’ rights to freedom of association, and its regional offices should act as intermediaries between the parties in the monitoring mechanisms, so as to limit any threat or intimidation of the complainants, an initiative accepted by the armed forces. Furthermore, to address the concern that most of the arrests previously denounced by the unions were made by virtue of search warrants from Manila and Quezon City courts, which were implemented in areas outside their regions, the Supreme Court issued an Administrative Matter, expressly limiting the power to issue search warrants within the bounds of one’s territorial jurisdiction, which has been met with positive response by labour groups. The Government adds that the previously mentioned Senate Bill No. 2121 (defining and penalizing the crime of red-tagging) was filed in March 2021 but was not enacted and may be refiled in the 19th Congress. The Committee takes due note of the above information and appreciates the described measures and initiatives, which it trusts will, together with the tripartite roadmap, contribute to ensuring full respect for civil liberties in the exercise of trade union rights. The Committee strongly encourages the Government to continue to take concrete measures in this regard and requests it to provide information on the progress made in the adoption of Senate Bill No. 2121.

The Committee further notes that the Government also provides updates on the concrete investigative and other actions undertaken to address some of the specific allegations previously reported by trade unions. In particular, the Committee notes the Government’s detailed information in relation to the allegations of extra-judicial killings of eight trade unionists in the education sector reported by EI, ACT and SMP-NATOW in 2020, indicating that three cases are pending before the courts, in one case the suspect is deceased and four cases are under investigation, the motive for the killings not yet ascertained. The Committee also duly notes the Government’s reporting on the status of monitoring or investigations initiated by various domestic mechanisms, including the Commission on Human Rights, the National Bureau of Investigation, a special investigation task group and the Administrative Order No. 35 special investigating teams, into the killings of 13 trade unionists, 17 cases of red-tagging and harassment, and 12 cases of forced disaffiliation alleged by the ITUC in 2021 and observes that for some incidents murder charges were filed against several policemen. The Committee welcomes the detailed observations and the measures taken to investigate these incidents and bring the perpetrators to justice. The Committee observes, however, that out of the 17 instances of arrests of unionists that were denounced by the ITUC, only two were released while the others have criminal cases pending against them. The Committee also observes that the Government does not provide updated information on the status of investigations into the other serious allegations previously reported, in particular many of those alleged by the ITUC and EI in 2019 and 2020 and some of the incidents submitted jointly by EI, ACT and SMP-NATOW in 2020, all of which are detailed in the Committee’s previous comments, and concern specific incidents of killings, attempted killings, death threats, profiling, surveillance, violent strike dispersal and military and police raids on union offices. In view of the above and having regard to the seriousness of the denounced incidents, the Committee expects the Government to continue to take measures to ensure that all allegations of killings, red-tagging, harassment and other serious forms of violence against trade unionists previously reported by the ITUC, EI, ACT and SMP-NATOW are properly investigated and lead to concrete results, so as to establish the facts, including any links between the violence and trade union activities, determine culpability, punish the perpetrators and contribute to preventing and combating impunity. The Committee requests the Government to continue to provide information on the measures taken in this respect and on the progress in investigations.

New allegations of violence and intimidation. The Committee notes that in its latest communication, the ITUC raises concerns about persistent violations against workers and their representatives and points to two illustrative incidents. In particular, the ITUC alleges that in November 2021, persons claiming to be members of the Quezon City Police Department entered the offices of the Center of United and Progressive Workers (SENTRO) and later the Trade Union Confederation of the Philippines (TUCP) without justification, repeatedly inquiring about SENTRO’s office, other unions present and their activities, as well as about the Nagkaisa Labour Coalition. In another incident in December 2021, the police brutally repressed a strike in a pasta-making company, using water cannons and truncheons, and 44 workers were arrested and charged with illegal assembly, disobedience and causing “alarm and scandal”; they were later released pending further investigation. According to the ITUC, the climate of pressure, fear and extreme physical violence gravely undermines the ability of workers to exercise the rights protected by the Convention, and the persistence of these violations, as well as the failure of State entities to seriously address the situation, continue to expose workers engaging in trade union activities to imminent danger and irreparable harm and requires immediate intervention. Noting these allegations with concern, the Committee requests the Government to provide its observations thereon and to ensure that the incidents are adequately addressed, including through investigation, that any unionists detained in relation to the legitimate exercise of trade union activities are released and that the criminal system is not used to repress freedom of association rights.

Pending cases of alleged killings of trade union leaders. For several years, the Committee has been requesting the Government to ensure that the investigations into the killings of trade unionists Rolando Pango, Florencio “Bong” Romano and Victoriano Embang are completed to shed full light on the facts and the circumstances in which such actions occurred and, to the extent possible, determine responsibilities, punish the perpetrators and prevent the repetition of similar events. The Committee notes from the Government’s information that the cases continue to be monitored by the regular process of criminal investigation and prosecution but observes that no apparent progress was made in the case of Rolando Pango (a murder case dismissed in 2015 for lack of probable cause) and Victoriano Embang (a murder case filed in 2015 with the two accused remaining at large). In the case of Florencio “Bong” Romano, the Government informs of police interviews and continuing investigation to identify the perpetrator. Observing with regret that despite continued monitoring and investigation reported by the Government, no substantial progress appears to have been achieved in bringing the perpetrators to justice or clarifying the circumstances of these incidents, the Committee urges the Government to step up its efforts in this regard and emphasizes that investigations into killings of trade unionists should yield concrete results, so as to determine reliably the facts, the motives and the persons responsible.

Measures to combat impunity. Monitoring mechanisms. In its previous comment, the Committee expressed trust that the review of the operational guidelines of the monitoring mechanisms would be completed without delay and would contribute to ensuring their full operationalization and requested the Government to continue to take measures to ensure effective and timely monitoring and investigation of all pending labour-related cases. The Committee notes the Government’s indication that both the review of the operational guidelines of the RTMBs and consultations on the possibility of creating mechanisms specifically for the purpose of monitoring freedom of association cases are part of the mid-term goals incorporated in the proposed tripartite roadmap and are expected to be completed by December 2023. The Government also reports on progress made in the collection of information and investigation in the 43 cases of killings of unionists reported by workers’ representatives at the 2019 Conference Committee, out of which 19 are being investigated, 18 are pending in court, three were dismissed, in one case the suspect died and in two cases the relatives filed affidavits of disinterest. An additional 12 incidents submitted by ACT Teachers Partylist, Nagkaisa Labour Coalition and other labour groups are, according to the Government, also being addressed, with four cases pending in court, six cases under investigation, in one case the suspect died and in one the relatives issued affidavits of disinterest. Taking due note of the above, the Committee strongly encourages the Government to fully engage with the social partners in the review of the operational guidelines of the monitoring mechanisms, including in the framework of the mentioned tripartite roadmap, and requests that the Government continue to take all necessary measures to further strengthen these mechanisms, including allocating sufficient resources, staff and security to personnel, in order to ensure their full operationalization and to allow for effective and timely monitoring and investigation of all pending labour-related cases of extra-judicial killings and other violations against trade union leaders and members. The Committee also requests the Government to continue to provide updates on the progress made by these mechanisms in ensuring the collection of the necessary information to bring the pending cases of violence against trade unionists to the courts.

Measures to combat impunity. Training and Guidelines on the conduct of stakeholders. The Committee notes the information provided by the Government on several ongoing projects and training activities, including a project for various government agencies and sectoral partners on ensuring safe and decent work by improving the state of freedom of association in ecozones, which aims to strengthen social dialogue and labour relations laws, processes and institutions, as well as to build the capacity of government agencies on international labour standards, including the core Conventions on freedom of association and collective bargaining. The Government further informs that the 2011 and 2012 Guidelines governing the conduct of concerned agencies relative to the exercise of trade union rights and activities are being harmonized into a new set of guidelines, which will govern the conduct of government stakeholders but also workers and employers in the private sector, and will emphasize that all requests for police or military assistance during labour disputes, including in economic zones, should be processed through and coordinated with the DOLE. The Government indicates that these guidelines have been presented to the social partners, and are the subject of ongoing deliberations, and are expected to be finalized by the end of 2022. Welcoming the above initiatives, the Committee encourages the Government to continue to promote comprehensive training activities among government agencies, with a solid focus on international labour standards of freedom of association and collective bargaining, with a view to increasing awareness of the concerned State officials on these matters and improving their capacity to address and investigate alleged violations of human and trade union rights, thus ultimately contributing to combating impunity. The Committee looks forward to receiving the revised Guidelines on the conduct of stakeholders relative to the exercise of trade union rights and trusts that they will constitute a useful tool in preventing and addressing violations of civil liberties in this context. Further noting the Government’s willingness to receive ILO technical assistance on a number of specific points, including on identifying gaps in the exercise of freedom of association, the Committee trusts that the Office will be in a position to provide any relevant technical assistance requested by the Government on these issues.

Measures to combat impunity. Pending legislative matters. The Committee previously requested the Government to provide information on any developments in relation to the pending legislative matters referred to it by the Committee on Freedom of Association, in particular: (i) the adoption of a Bill concerning enforced and involuntary disappearances; and (ii) the previously announced review by the Supreme Court and the Commission on Human Rights of the witness protection programme on the writ of amparo adopted in 2007, as well as of the application of the Anti-Torture Act No. 9745 and of Act No. 9851 on crimes against international humanitarian law, genocide and other crimes against humanity. The Committee notes the Government’s indication that since House Resolution No. 392 was filed in October 2019 (calling for justice for the victims and urging the House Committee on Human Rights to investigate, in aid of legislation, the state of enforced disappearances in the country), no further action was taken by the Congress. It also informs that House Resolution No. 45 (directing the Committees on Justice and Human Rights to jointly conduct an inquiry into the implementation of the Anti-Enforced or Involuntary Disappearance Act of 2012) was filed in Congress and is pending the first reading. The Committee takes due note of the above and encourages the Government to continue to support legislative efforts that could have a positive impact on the exercise of civil liberties and trade union rights in the country.

Anti-Terrorism Act. In its previous comment, in view of the concerns expressed by the ITUC, the Committee requested the Government to take any necessary measures to ensure that the Anti-Terrorism Act, 2020 does not have the effect of restricting legitimate trade union activities. The Committee notes the Government’s indication that the Act has been submitted to judicial scrutiny so as to determine whether or not it is inconsistent with the constitution and that in its judgment from December 2021, the Supreme Court declared that the law was not, as a whole, unconstitutional but nullified two of its provisions. In particular, the Committee observes from the text of the judgment that the Supreme Court considered as unconstitutional a part of the proviso in section 4 which allows for an overly vague interpretation of what constitutes terrorism and the second paragraph of section 25, allowing the Anti-Terrorist Council appointed by the President to adopt requests by other jurisdictions or supranational organizations to designate individuals, groups of persons, organizations or associations as terrorist. The Committee understands that following the Supreme Court decision, terrorism as defined in section 4 does not include advocacy, protest, dissent, stoppage of work, industrial or mass action, and other similar exercises of civil and political rights, and welcomes this development. The Government adds that in April 2022, the Supreme Court denied appeals to reverse its decision upholding the constitutionality of the law as a whole but clarifies that the decision does not preclude subsequent challenges on other provisions if an actual case or controversy arises. The Committee trusts that, in line with the above developments, the Government will ensure that the Anti-Terrorism Act or its implementation, do not have the effect of restricting legitimate trade union activities and related civil liberties.

Legislative issues

Labour Code. In its previous comments, the Committee had been noting the numerous amendment bills pending before Congress over many years and in various forms with a view to bringing the national legislation into conformity with the Convention. Noting the Government’s indication that no recent amendments have been made on the pending matters, even though a number of measures had been filed with the Senate and the House of Representatives over the years, theCommittee reiterates all of its previous comments and requests in this respect, and expects concrete measures to be taken to pursue the revision of the Labour Code without additional delay so as to bring the national legislation into conformity with the Convention.

The Committee further reiterates its comments contained in the 2020 request addressed directly to the Government.