Effect given to the recommendations of the committee and the Governing Body - Report No 391, October 2019

Case No 2745 (Philippines) - Complaint date: 30-SEP-09 - Follow-up cases closed due to the absence of information from either the complainant or the Government in the last 18 months since the Committee examined the cases

Effect given to the recommendations of the committee and the Governing Body

1. 40. The Committee last examined this case at its October 2013 meeting [see 370th Report, paras 643–684] and made the following recommendations [see 370th Report, para. 684]:
   • (a) The Committee expects that the Strengthening Workers’ Rights to Self-Organization Bill, amending articles 234, 235, 236, 237 and 270 of the Labour Code, 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.
   • (b) 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 takes due note of the information provided as regards the latter enterprise 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. The Committee also requests the Government to keep it informed of the measures taken or envisaged to ensure full respect in the future of the principle that the public authorities and employers exercise great restraint in relation to intervention in the internal affairs of trade unions.
   • (c) 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 and Golden Will Fashion Phils.), 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 these companies, 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.
   • (d) As regards the allegations of anti-union discrimination in the form of illegal dismissals of trade union members in various enterprises, 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 the latter company), 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. Furthermore, 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.
   • (e) With respect to the alleged denial of the right to strike, 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. 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.
   • (f) In relation to the allegations of blacklisting and vilification of union members at Daiho Philippines and Anita’s Home Bakeshop, 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.
   • (g) 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 and Asia Brewery, the Committee urges the Government to keep it informed of the motu proprio investigation that was to be conducted by the CHR into the allegations concerning the latter company, 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.
   • (h) As regards the serious allegations of involvement of the army and police (units of the PNP, Regional Special Action Forces–PNP, and/or AFP SWAG or security guards sent by 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 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. Also, 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.
   • (i) Concerning the allegations of a prolonged presence of the army inside the workplaces in the enterprises Sun Ever Lights and Siam Ceramics, the Committee requests the Government to keep it informed in regard to action taken and resolution of these cases.
   • (j) 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.
   • (k) The Committee requests the Government to continue to keep it informed with regard to the upcoming capacity-building activities for the effective implementation of the Guidelines, or concerning freedom of association, collective bargaining and international labour standards in general, 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.
   • (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.
2. 41. The Government provides its observations with respect to many of these issues in communications dated 7 November 2013, 26 May 2014, 12 February 2015 and 1 October 2019.

Trade union rights in economic zones

1. 42. With regard to the alleged violations of trade union rights in companies in export processing zones (EPZs), special economic zones and other industrial areas, the Government reiterates that the Monitoring Body of the National Tripartite Industrial Peace Council (NTIPC-MB) had issued resolution No. 8, series of 2012, to facilitate the gathering of information on and the eventual resolution of 17 cases of alleged violations of trade union rights presented by Kilusang Mayo Uno (KMU). Out of this number, one case  has been recommended for closure on the ground that the union and the management had reached a settlement, four cases  were covered by separate NTIPC-MB resolutions, as they were previously raised in Case No. 2528 and the NTIPC-MB recommendations were already effected in four other cases:
   • (i) Regarding the case filed by Goldilocks Ant-Bel (enterprise A) Workers Association (GAWA) for alleged unfair labour practice, illegal dismissal, moral and exemplary damages and attorneys’ fees, the Government states that following the September 2012 denial by the Court of Appeals of the motion for reconsideration of its previous ruling that had established the legality of the company closure of business and had considered that there was no illegal dismissal or obligation to pay backwages, the Department of Labor and Employment (DOLE) has extended to the members of the union a livelihood assistance under the DOLE Adjustment Measures Program amounting to 283,705 Philippine Peso (PHP) (US$5,421).
   • (ii) Concerning the Sun Ever Lights (enterprise B) Labour Union – Independent (SELLUI) case, a motion was filed by the union for a writ of execution of the 2008 reinstatement order issued by the National Labor Relations Commission (NLRC). The NTIPC-MB resolved to refer the case to the NLRC for an immediate resolution and the Commission reported that the case has already been settled.
   • (iii) Regarding the case of Nagkakaisang Manggagawa sa Chong Won (NMCW Independent) (enterprise C), the Government has previously reported that following the company closure in 2007 and declaration of insolvency, the Philippine Economic Zone Authority (PEZA) auctioned the company’s property amounting to about PHP1.6 million (US$30,574) and the lawyer of the workers was tasked to distribute the money among the worker claimants. A copy of the court report on the distribution of the money will be provided as soon as available.
   • (iv) As to the Anita’s Home Bakeshop (enterprise D) Workers Union-ANGLO-KMU case, the Government indicates that the NTIPC-MB requested the Court of Appeals to expedite the resolution of the case and the court reported that the case was dismissed on 20 December 2013 and no appeal was filed. The DOLE provided the 33 displaced union members a livelihood grant with a total cost of PHP298,000 (US$5,695) in addition to the earlier grant of PHP130,612 (US$2,496) released to the displaced workers under the DOLE Adjustment Measures Program.
2. 43. Concerning the other eight cases, the Government provides the following updated information gathered from the various concerned agencies through the NTIPC-MB:
   • (i) In the Nagakakaisang Manggagawa se Hoffen Industries-Olalia case (enterprise E) that concerns alleged interference of local government officials in union affairs, the management claims that it does not have knowledge of such interference and that, despite the allegations, the Hoffen Employees Workers’ Union (HEWU-PAFLU) won a certification election conducted in 2008 and was certified as a collective bargaining agent at the enterprise. As to the allegations concerning illegal dismissals and closure of the company affecting around 1,800 workers, the union president filed a case for unfair labour practices, union busting and illegal closure before the NLRC asking for reinstatement and payment of backwages. However, in April 2013, 248 former workers, including some of the local union officers, issued an affidavit stating that after the management informed them of the losses incurred by the company and prompted them to offer gratuity pay to the employees in accordance with the collective bargaining agreement, they had willingly accepted the offer of the management and were not forced to accept the package, did not consent to the filing of the case before the NLRC against the company and were satisfied with how the management treated them. The NLRC reported that the appeal in this case has already been resolved and that a decision was promulgated on 20 November 2013.
   • (ii) In the Tunay na Pagkakaisa ng Manggagawa sa Asia Brewery Incorporated-Independent case (enterprise F), the management refutes the union’s claim that, in 2004, it illegally dismissed 31 union officers and members for disloyalty. It clarifies that two union officers were expelled for union disloyalty by virtue of the closed-shop provision of the collective bargaining agreement that enables the termination of employment of an employee on the grounds of his or her expulsion from the union. The other 29 employees were dismissed for staging an illegal strike in October 2004 and committing illegal acts in the process. Verification showed that the dismissed union officers and members filed a complaint with the NLRC RAB IV against the company and its officials for illegal dismissal and money claims. The NLRC dismissed the complaint for lack of merit and the Court of Appeals affirmed the dismissal of the 29 employees but ordered the reinstatement of two union officers (Bela and Lacerna) to their respective positions with backwages from the time they had been dismissed until their actual reinstatement. The Supreme Court also declared their termination illegal and that they were deemed reinstated to their former status and entitled to the benefits that they have been regularly receiving. As to the alleged criminalization of the labour dispute, the criminal case filed against Rodrigo Perez et al. for damages caused during the October 2004 strike was resolved in July 2014 and Perez was acquitted. The case of Bonifacio Fenol, charged with grave disobedience for throwing stones at policemen during the February 2009 strike at the company, was also dismissed in August 2011.
   • (iii) Regarding Samahang Manggagawa ng ENKEI case (enterprise G), in which the union alleged that 47 workers, including six members of the executive committee and four board members, were illegally dismissed in 2006 without due process, after attending a union meeting on a non-working holiday, and that the management forced the workers to work without prior notice and charged them with insubordination, the management argued that the direction to the employees to render work on the non-working day was meant to meet the demands of the customers, as failure to meet them would cause great and irreparable losses to the company and that despite previous notice to render work, the employees deliberately did not report to work on the date. The Government informs that in May and June 2007, the NLRC issued resolutions declaring the termination of the 47 employees as illegal and ordering their reinstatement without loss of seniority rights and benefits. The management filed a petition for certiorari and prohibition but the Court of Appeals denied it in December 2011 and modified the assailed NLRC resolutions to exclude 27 employees who had already received settlements and signed Affidavits of Waiver, Quitclaim and Release.
   • (iv) Regarding Golden Will Fashion Phils. (enterprise H) Workers’ Organization-Independent case, in which the union denounced retrenchment of 103 union members following a six-month forced vacation leave, the management claimed that the company was affected by the 2008 global financial crisis and had no choice but to implement a temporary closure from March to June 2009 before filing a notice of retrenchment. According to a PEZA report, the company paid the workers in accordance with existing laws, deposited to the NLRC the remaining separation pay for employees who had not yet received it and assigned authorized personnel to serve as contact persons for the concerned employees. On the alleged intervention of local government officials in union organizing, the company admitted that it had invited Governor Maliksi for a peaceful dialogue with the union. As to the criminal charges filed against 25 union officers and active members for qualified theft, the Government informs that the charges were dismissed on 4 May 2010 due to insufficient evidence.
   • (v) Regarding the Sensuous Lingerie (enterprise I) Unified Labor Organization case, in which the union alleged company closure while negotiations for a collective bargaining agreement were ongoing, the management claimed that due to serious business reversals and unfavourable economic conditions, it had to close operations in June 2008. PEZA reported that 605 workers affected by the closure were absorbed by a sister company, while those who did not qualify were given separation pay.
   • (vi) In the Samahan ng Manggagawa sa Mariwasa Siam Ceramics, Inc.-Independent case (enterprise J) that concerned alleged interference of local government units with union affairs and the use of army or police presence inside the workplace during the process of petition for certification election, the management refuted the allegations and the DOLE records show that there are four registered trade unions at the enterprise. The Government emphasizes the difficulties in gathering substantial information on the allegations due to a considerable lapse of time and the Regional Tripartite Monitoring Body (RTMB) is verifying whether such incidents of interference or harassment still prevail in the company.
   • (vii) In the Samahan ng Manggagawa sa EDS Mfg., Inc.-Independent case (enterprise K) that involves alleged interference of corrupt former union leaders in union affairs, the enterprise claims that it cannot provide information on the matter considering that the issue concerns an inter/intra-union dispute that does not involve the company, whereas the Government underlines the difficulties in gathering information on the allegations due to a considerable lapse of time. It reiterates that the RTMB is verifying whether such incidents of interference still prevail in the said enterprise.
   • (viii) In the Workers’ Union of Daiho Philippines Incorporated-Independent case (enterprise L), which concerned alleged illegal retrenchment affecting 106 employees from two plants, the management claimed that the notice of retrenchment took effect in accordance with the law, following a 30-day notice, was due to the installation of a labour saving device and offered fair and justified separation pay to all retrenched employees. Additionally, the union denounced union busting when the management filed a motion for reconsideration in the petition for certification election initially granted by the DOLE but the management explained that the motion aimed to question the union’s registration, its collective bargaining representation, as well as its personality as it covered two plants but its registration address only referred to one factory. The Government indicates that verification showed that the results of the certification election conducted on 27 January 2010 did not favour the union, which was thus not certified as the bargaining agent of the company’s employees. The case was elevated to the Court of Appeals and referred to the Philippine Mediation Centre-Court of Appeals for purposes of mediation. In June 2012, the case was closed after the management filed a motion for leave to withdraw petition on the grounds that the union had already filed with the DOLE Regional Office a motion that it had accepted the adverse outcome of the 27 January 2010 certification election and the union had thus not been certified as the bargaining agent of the company’s employees.

Legislative reform

1. 44. Concerning progress on legislative reform, the Government indicates that in October 2013, a DOLE Department Order No. 40-H-13 was issued in order to help shift the exercise of the assumption of jurisdiction power from the criteria of “industry indispensable to the national interest” to “essential services” criteria. The Department Order is an implementing guideline for section 263(g) of the Philippine Labor Code, was processed through extensive tripartite discussions and approved by the National Tripartite Industrial Peace Council (NTIPC). It adopts four of the five ILO-listed essential services and includes a provision on tripartite recommendation of industries that may or may not be essential services per se. Thus, it defines companies or industries affecting “national interest” along the ILO’s definition of “essential services” in the exercise of assumptive power of the Secretary of Labor and Employment over labour disputes, strikes and lockouts. These industries include the hospital sector, electric power industry, water supply services (except small water supply services, such as bottling and refilling stations) and air traffic control, and other industries may be included upon recommendation of the NTIPC. The Department Order also reiterates the procedure for the exercise of the Secretary’s assumptive power, where either or both parties shall invoke the exercise of the assumptive power through a petition for assumption of jurisdiction. If invoked by both parties, its issuance is automatic regardless of the category of the industry, if invoked by one party, the petition would trigger the conduct of an exhaustive conciliation under the Office of the Secretary until settlement is reached. In both instances, conciliated agreement is worked out and arbitral award is the last resort. The Department Order emphasizes speedy resolution of assumed or certified cases and addresses the claimed arbitrariness in the use of the assumptive power of the Secretary of Labor and Employment, as well as the overbroad criteria of industries indispensable to the national interest. It intends to transition the social partners towards aligning the law on assumption of jurisdiction to the ILO essential services criteria and a Technical Working Group has already been constituted by the House Committee on Labor and Employment to harmonize all the pending bills on assumption of jurisdiction during the January 2015 hearing. The Government points out that the Department Order has been successfully observed since its issuance and that its implementation is expected to facilitate its enactment into law. The Government also indicates that the Single Entry Approach (SEnA), providing for an institutionalized 30-day mandatory conciliation–mediation service on all individual and collective labour and employment disputes as the first approach, resulted in a decline in the number of assumption cases and cases certified for compulsory arbitration. The Government provides detailed statistics in this regard.
2. 45. With regard to the 20 per cent membership requirement for registration of independent unions in the Union Registration Bill or the Strengthening Workers’ Right to Self-Organization Bill, the Government informs that the total removal of this requirement has been reconsidered and the requirement was lowered to 10 per cent, as agreed by the NTIPC.
3. 46. The Government adds that promotion of freedom of association and collective bargaining is now embedded in the Labor Laws Compliance System (LLCS) of the DOLE (Department Order No. 131, series of 2013), which shifts the labour standards enforcement system from a purely regulatory approach to one that combines both regulatory and facilitative approaches that should enable establishments to comply with all labour laws with the active participation of both employers and workers. The LLCS involves an assessment and certification process with the participation of the social partners to determine compliance by establishments with labour laws. It is tripartite: the Labour Laws Compliance Officer, together with employers’ and workers’ representatives conducts a joint assessment of the establishment’s compliance with all labour laws and, based on this assessment, the establishment may be issued with three types of certificates (compliance with general labour standards, compliance with occupational safety and health standards and compliance with labour relations). In case of deficiencies, the Labour Law Compliance Officers will assist the establishments to comply by providing technical assistance and educating both employers and workers on labour laws and standards. The Government provides statistics on the number of establishments that underwent certification of compliance with labour standards.
4. 47. Finally, the Government informs that to ensure that labour disputes are not converted into criminal cases, the DOLE coordinated with the Department of Justice (DOJ) for an issuance reinforcing the provisions of Circulars Nos 15, series of 1982, and 9, series of 1986, requiring government prosecutors to secure clearance from the DOLE and/or the Office of the President before taking cognizance of complaints for the preliminary investigation and the filing in court of the corresponding information of cases 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 a place of operation of the machines of such a factory or the employer’s premises. The DOJ issued Memorandum Circular No. 16 on 22 April 2014, in conformity with Title XII of the Guidelines on the conduct of the DOLE, DILG, DND, DOJ, AFP and PNP relative to the exercise of workers’ rights and activities.

Capacity-building activities

1. 48. The Government provides detailed information on capacity-building activities undertaken to ensure compliance with international labour standards: (i) in order to cascade the knowledge contained in the modules finalized during the Trainers’ training on international labour standards, freedom of association and collective bargaining conducted on 21–25 January 2013, four area-wide trainings on international labour standards were held from May to July 2013 for the DOLE, PEZA and Commission on Human Rights (CHR) officials to instil common understanding and interpretation of international labour standards, in particular freedom of association, collective bargaining, concerted actions and other trade union activities; (ii) as regards the Guidelines on the conduct of the DOLE, DILG, DND, DOJ, AFP and PNP relative to the exercise of workers’ rights and activities, four area-wide advocacy workshops took place in August 2013 for the sectoral partners (DOLE, Regional Tripartite Industrial Peace Councils (RTIPCs), RTIPC-Monitoring Bodies, DILG especially local government units (LGUs), the Department of National Defense (DND), DOJ, Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP)), so as to orientate them on the significance of the Guidelines in order to: promote compliance among all stakeholders; raise participants’ understanding on their roles and functions in collaboration with other stakeholders relative to the exercise of workers’ rights and trade union activities; improve coordination among government in handling cases through the implementation of the Guidelines; strengthen the networking links and engagement among workers and employers and contribute to tripartite prevention and monitoring of violence against workers and unions; (iii) an orientation seminar on international labour standards, freedom of association and collective bargaining for university students took place on 3 December 2013 with the primary objective to raise awareness and promote full understanding of international labour standards and workers’ rights to freedom of association, collective bargaining, concerted actions and other trade union activities, and convey to the students the relevance of such principles in sustaining social justice and industrial peace; around 200 students participated in the seminar; (iv) three area-wide trainings on freedom of association and collective bargaining for the military and the police were also conducted from March to April 2014 so as to equip the participants with knowledge on the principles of freedom of association and the right to collective bargaining and to improve the application of the various Guidelines in relation to their respective mandates, duties and functions; and (v) a capacity-building seminar for members of the RTMBs in labour relations-heavy regions took place on 19–20 May 2014 with the objective to carry out self-assessment, identify and address gaps in the system of monitoring and resolving cases of trade union rights violations; equip members of the RTMBs with appropriate or modernized ways on the effective and efficient monitoring of cases of violations of trade union rights; and update them on international labour standards, freedom of association and collective bargaining principles in relation to insurgency situations, peacekeeping and maintenance of public order; the seminar resulted in the adoption of draft RTMB Operational Guidelines.
2. 49. The Government further informs that the Department, in coordination with the ILO Country Office, also conducted the following activities: knowledge sharing on alternative dispute resolution processes workshop on 24–25 February 2014 with participants from the Bureau of Labor Relations, Bureau of Working Conditions, Legal Service, NLRC and National Conciliation and Mediation Board; training session for DOLE trainers on improving skills to handle training activities on international labour standards, freedom of association and collective bargaining on 14 March 2014; National Consultative Forum on collective bargaining on 23 June 2014 with participants from members of employers’ organizations, labour groups, government sector and the academia with the aim of generating comments and policy inputs from key stakeholders and to use them as a basis for the development of a national policy on collective bargaining; area-wide orientation seminars on the LLCS for labour and employers were conducted in October 2014; and a consultation workshop on policy reforms on collective bargaining was held on 28–29 January 2015. The implementation of the Guidelines in all potential and actual labour disputes, accompanied by continuous capacity-building activities, resulted in zero labour-dispute related violence, unlike in the previous years. Indeed, the Guidelines served as important instruments prescribing the conduct to be observed by implementers and stakeholders during labour disputes and have been successful in ensuring that no incident or violence occurred during concerted activities of workers. The Government provides a number of specific cases as relevant examples both from special economic zones and outside the zones.
3. 50. The Committee takes notes of the detailed information submitted by the Government. With regard to the Strengthening Workers’ Right to Self-Organization Bill, amending articles 234, 235, 236, 237 and 270 of the Labor Code by removing the 20 per cent minimum membership for registration of independent labour organizations, reducing the required minimum membership of local unions for federation registration and removing the required government authorization on receipt of foreign funding (recommendation (a)), the Committee notes the Government’s indication that the Bill has been reconsidered and, as agreed by the NTIPC, now aims to lower the 20 per cent membership requirement for registration of independent trade unions to 10 per cent instead of its outright removal. The Committee further notes that, according to the information submitted by the Government to the 2018 Committee of Experts and the 2019 Committee on the Application of Standards, the mentioned legislative changes have not yet been adopted and a number of bills amending the Labor Code on the mentioned subject matter are still pending, in particular House Bills Nos 1355, 4448 and Senate Bill No. 1169. In these circumstances, the Committee trusts that the Government will make a serious effort to bring the Labor Code into conformity with the principles of freedom of association in the very near future and refers this legislative aspect to the Committee of Experts.
4. 51. With respect to the alleged denial of the right to strike in export processing zones (EPZs) and the ongoing legislative reform in this regard (recommendation (e)), the Committee notes the Government’s indication that: (i) DOLE Department Order No. 40-H-13, an implementing guideline for article 263(g) of the Labor Code (now renumbered as article 278(g)), was issued to help shift the exercise of the assumption of jurisdiction power of the Secretary of Labor and Employment over labour disputes, strikes and lockout from the criteria of “industry indispensable to the national interest” to “essential services” criteria; (ii) these services include the hospital sector, electric power industry, water supply services (except small water supply services, such as bottling and refilling stations), air traffic control, and other industries may be included upon recommendation of the NTIPC; (iii) the Department Order reiterates the procedure provided under Department Order No. 40-G-03 for the exercise of the Secretary’s assumption power, has been successfully observed since its issuance and should facilitate the passage in Congress of the relevant bill; and (iv) the SEnA programme, providing for a 30-day mandatory conciliation–mediation service on all individual and collective labour and employment disputes as the first approach, has resulted in the decline in the number of cases brought to compulsory arbitration. The Committee further observes from the information submitted by the Government to the 2018 Committee of Experts and the 2019 Committee on the Application of Standards that several bills addressing the issue are still pending, in particular House Bills Nos 175, 711, 1908 and 4447 and Senate Bill No. 1221. While taking due note of these developments, the Committee expects that the legislative reform aimed at amending article 278(g) of the Labor Code to restrict government intervention leading to compulsory arbitration to essential services will be adopted in the very near future so as to ensure the full respect for trade union rights of EPZ workers.
5. 52. Concerning the alleged violations of trade union rights in a number of enterprises in EPZs, special economic zones and other industrial areas, the Committee recalls that these refer to interference of local government units into internal union affairs, closure of enterprises following the recognition of trade unions, anti-union discrimination in the form of illegal dismissals, blacklisting and vilification of union members, false criminal charges filed against labour leaders and unionists, involvement of the army, the police or security guards during protests and prolonged presence of the army inside the workplaces in more than 15 enterprises.
6. 53. As to the allegations of interference of local government units into internal union affairs in four enterprises (recommendation (b)), the Committee takes due note of the Government’s detailed reply in respect to enterprises E, H, J and K. While taking note of the information submitted, the Committee regrets the apparent lack of progress in investigating some of the above allegations. The Committee underlines that allegations of violations of trade union rights should be examined rapidly, since excessive delay in processing such allegations may hinder their investigation and render it difficult to adopt an adequate remedy. The Committee trusts that, despite the difficulties encountered, the Government will be able to achieve satisfactory resolution to all these cases.
7. 54. With respect to the alleged closure of a number of enterprises in EPZs following the recognition of trade unions (recommendation (c)), the Committee notes the information provided by the Government in respect of enterprises A, H and I. Recalling 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 [see 370th Report, October 2013, para. 668], the Committee expects the Government to ensure that, in the future, similar allegations are investigated without delay to ensure speedy and adequate remedy.
8. 55. With regard to the allegations of anti-union discrimination in the form of illegal dismissals of trade union members in various enterprises (recommendation (d)), the Committee takes note of the detailed information provided by the Government in respect of enterprises B, C, D, E, F, G and L and of the various measures taken.
9. 56. The Committee regrets that the Government does not provide any information with regard to the alleged dismissals at Hanjin Garments (enterprise M). Given the considerable lapse of time since these allegations were made, the Committee firmly expects that these cases have since been resolved by the agencies concerned to the satisfaction of all parties. Recalling that anti-union discrimination is one of the most serious violations of freedom of association, as it may jeopardize the very existence of trade unions [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1072], the Committee trusts that the Government will take all necessary measures to ensure that, in the future, any allegations of anti-union discrimination are properly and speedily investigated so as to allow for a rapid and equitable resolution and an adequate remedy for the concerned workers.
10. 57. In relation to the allegations of blacklisting and vilification of union members at enterprises D and L (recommendation (f)), 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. The Committee regrets the lack of any new information in this regard and recalls once again that all practices involving the 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 Compilation, op. cit., para. 1121].
11. 58. 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 (recommendation (g)), the Committee welcomes the information provided by the Government in respect of enterprises F and H but notes that some cases were pending for ten years before the unionists concerned were finally acquitted of all charges. The Committee further observes from Case No. 2528 that, according to the Government, the criminal case filed against officials of Kaisahan ng Manggagawa sa Phils. Jeon Inc. (enterprise N) had been closed due to lack of direct evidence [see 370th Report, October 2013, para. 77]. With regard to enterprise I, the Committee notes that the Government does not provide any updates as to the criminal charges filed against the trade unionists but trusts that, given the time that has elapsed since these allegations were made and the absence of any further information from the complainant, the matters have been solved and any criminal charges filed against trade unionists based on legitimate trade union activities have been dropped.
12. 59. With respect to the more general allegations of criminalization of trade union activities, the Committee welcomes the Government’s initiatives to ensure that labour disputes are not converted into criminal cases, in particular by way of reinforcing the provisions of circulars that ensure that prosecutors must secure clearance from the DOLE or the Office of the President before taking cognizance of complaints related to a labour dispute.
13. 60. Concerning the serious allegations of involvement of the army, police and security guards to intimidate or disperse workers during protests, strikes or on picket lines at enterprises B, F, I and M, which in the latter company’s case resulted in the death of one protester (recommendation (h)) and the allegations of prolonged presence of the army inside the workplaces in the enterprises B and J (recommendation (i)), 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. The Committee regrets that the Government does not provide any updated information in this regard and wishes to recall once again 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 Compilation, op. cit., para. 935]. It also wishes to emphasize that prolonged presence of the army inside workplaces is liable to have an intimidating effect on the workers wishing to engage in trade union activities, and to create an atmosphere of mistrust which is not conducive to harmonious industrial relations. In these circumstances and in the absence of any information to the contrary from the complainant, the Committee expects that these allegations have been fully addressed by the agencies concerned.
14. 61. Further recalling 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 Compilation, op. cit., para. 104], the Committee requests the Government to indicate whether an independent judicial inquiry and proceedings were established before the competent courts with regard to the allegation of the killing of a protester at enterprise M, with a view to shedding full light on to the relevant facts and circumstances and determining the responsibilities, punishing the guilty parties and preventing the repetition of similar events, and to keep it informed of the outcome of the proceedings. The Committee will pursue the examination of this aspect of the case in the framework of Case No. 3119, when addressing the pending investigations into allegations of harassment of trade unionists by the police and the military in that case.
15. 62. With regard to giving instruction to the law enforcement authorities so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations (recommendation (j)) and other capacity-building activities on freedom of association and international labour standards (recommendation (k)), the Committee welcomes the Government’s initiative to raise the awareness of State officials and other relevant stakeholders on the subject and takes due note of the detailed information provided by the Government in this regard. It notes in particular the numerous trainings, workshops and seminars on international labour standards, freedom of association and collective bargaining conducted for State officials, including the police and the armed forces, social partners and other stakeholders between 2013 and 2015, as well as the concrete activities undertaken to ensure improved application by State authorities of the various guidelines in relation to their respective mandates, duties and functions. It also notes the Government’s indication that promotion of freedom of association and collective bargaining is now embedded in the LLCS aimed at assessing and certifying the compliance of enterprises with international labour standards. 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 training of social partners, prosecutors, enforcers and other relevant actors took place in November 2018 and January and February 2019; (ii) the DOLE has repeatedly called on the AFP and the 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 Labor 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. 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 expects that the numerous initiatives taken at the national level as well as improved knowledge and awareness of human and trade union rights among state officials will significantly contribute to minimizing army and police presence at workplaces, reducing incidents of army and police involvement in protests and strikes and making any such involvement proportionate to the threat to public order. The Committee will continue to follow-up on this issue in the framework of Case No. 3119, as part of its examination of measures taken by the Government to ensure observance by the police and the armed forces of human and trade union rights.