2008 Annual Survey of violations of trade union rights - Philippines
|Publisher||International Trade Union Confederation|
|Publication Date||20 November 2008|
|Cite as||International Trade Union Confederation, 2008 Annual Survey of violations of trade union rights - Philippines, 20 November 2008, available at: http://www.refworld.org/docid/4c52ca752.html [accessed 24 April 2014]|
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182
Sustained international pressure mounted by the UN, international trade union bodies and human rights organisations helped significantly reduce the killings and disappearances of trade union leaders in 2007. However, significant barriers in law and practice prevented realisation of trade union rights. A draconian anti-terrorism law was passed, raising concerns among human rights defenders about possible abuses of its provisions.
Trade union rights in law
The Philippine Constitution provides that the State shall guarantee the rights of all workers to self organisation, collective bargaining and negotiations, and peaceful and concerted activities, including the right to strike in accordance with the law. It also states that no law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.
The Labour Code recognises the right of Filipino nationals to form and join trade unions. Public servants, with the exception of the military and police, are allowed to exercise trade union rights. However managerial employees, prison staff and firefighters are denied the right. The ILO has repeatedly requested that the government amend the law to ensure that anyone legally residing in the country be able to benefit from trade union rights as provided under Convention No. 87.
Obstacles to trade union activity: An independent union (not affiliated to a federation) must represent at least 20 per cent of the workers of a given collective bargaining entity in order to register. Starting in May, unions that are members of federations no longer must fulfil this requirement. Unions must provide various documents for registration but this exposes their leaders to possible employer retaliation at a critical stage in a union's formation. The minimum membership requirement for a public employees union to gain legal personality is 30% of the total rank and file employees. Such a high threshold is likely to preclude the establishment of trade unions, and the ILO Committee of Experts has requested the government to lower this requirement to a reasonable level.
Before a federation or national centre can be created, at least ten collective bargaining agreements must have been registered by its member unions. Trade union leaders must be employed in the same enterprise as the workers they represent. Foreign nationals may not establish or join a trade union unless there is a reciprocal agreement between their respective countries and the government of the Philippines.
Significant barriers in exercising the right to strike: The right to strike for private sector workers is recognised under Philippine law. In order to obtain permission to strike, a trade union is required to give advance notice, respect mandatory cooling off periods and obtain the agreement of a majority (50 per cent plus one vote) of its members. All avenues of conciliation must have been exhausted. If the Minister of Labour and Employment considers that the industry concerned by the strike is "indispensable to the national interest", he or she can impose compulsory arbitration and compel the workers to return to work. This is a broad power which enables the government to intervene in disputes involving sectors which extend considerably beyond the scope of essential services as defined by ILO conventions. The Labour Secretary also has the power to deputise the police and the military to enforce a return-to-work order under the Assumption of Jurisdiction Order.
The law prescribes heavy penalties for participation in an illegal strike. Trade union leaders are liable to prison terms of up to three years. Anyone who organises or directs any "meeting for the purpose of spreading propaganda against the government" is liable to life imprisonment or the death penalty. The term "meeting" covers picketing during a strike.
Organising is still restricted in the public sector and strikes are banned.
Abandoning labour inspection in favour of voluntary compliance: The Labour Standards Enforcement Framework essentially abandons the principle of government labour inspection for workplaces with more than 200 workers. Instead of a formal labour inspection, the order requires self-regulation of labour standards among large companies (to be undertaken at least once a year by an employer-worker committee of uncertain provenance, according to a government-issued checklist), and in companies where there is a union that has registered a CBA. Following the inspection, the completed checklist must be mailed back to the Department of Labour and Employment (DOLE) for evaluation.
Contract workers prohibited from joining unions: Under law, workers classified as "contract" workers are not allowed to become members of a union. The law sets out a number of clear conditions limiting use of contract workers – including limits on the duration of the contract and not allowing such workers to perform the functions of regular employees – but those conditions are commonly ignored by employers.
Passage of a draconian anti-terrorism law: On July 15, the Human Security Act 2007 went into force, classifying a wide range of crimes as terrorist acts if they are committed to "create a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand". Mandatory sentences are set at 40 years without possibility of parole for terrorism or conspiracy to commit terrorism, and similarly heavy penalties are created for lesser crimes. There are significant concerns by human rights organisations and trade unionists that overly broad language in the law leaves it open to abuse by local police and judicial authorities. Arrests without warrants are allowed and indefinite detention is made possible in instances where authorities find there is an "actual or imminent terrorist attack."
Trade union rights in practice and Violations in 2007
Instilling mortal fear through extrajudicial violence and disappearances of unionists: Field investigations by the independent Centre for Trade Union and Human Rights (CTUHR) reported that 33 union leaders and supporters were killed and there were 130 incidents (affecting a total of 220 individuals) of trade union and human rights violations during 2006 (see 2007 Survey). In 2007, there was a significant drop in the number of cases of attacks and killings according to the independent NGO Karapatan (Alliance for the Advance of People's Rights).
A government-established commission headed by retired Supreme Court Associate Justice Jose Melo carried out an examination of the multitude of attacks, killings and disappearances of trade union and left-wing activists since 2001. The Melo Commission found that "some elements and personalities in the armed forces" are "responsible for an undetermined number of killings, by allowing, tolerating, and even encouraging the killings" but claimed there was no systematic Army policy supporting these actions.
The UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, visited the Philippines at the invitation of the government in February. He reported that the Philippines military was in a "state of almost total denial" about the involvement of its personnel in the abductions and killings. He identified a pattern of "vilification" in which trade unions and other civil society groups, considered to be on the left of society, are dealt with as "front groups" for armed groups in opposition to the state, and therefore treated as targets by government security forces. Alston also identified weakness of accountability mechanisms, accompanied by a "passivity bordering on an abdication of responsibility" in key oversight organisations in the legislative and executive branches of government. He found that the Ombudsman's office refused to consider even one of the 44 extrajudicial killing cases that were submitted to it from 2002 to 2006.
The ILO CFA considered a complaint by the KMU (case no. 2528) regarding attacks against unionists and in June condemned the government, noting that "the Committee deplores the gravity of allegations made in this case and the fact that ... inadequate progress has been made by the Government with regard to putting to an end the killings, abductions, disappearances, and other serious human rights violations which can only reinforce a climate of violence and insecurity and have an extremely damaging effect on the exercise of trade union rights."
There has been no significant progress, even less a successful prosecution, in investigating any of the attacks against trade unionists and their supporters reported in the 2006 report, including Gerardo Cristobal, the President of Yazaki-EMI; Jesus Buth Servida, the President of Yazaki-EMI who succeeded Cristobal; Tirso Cruz, a member of the executive board of the United Luisita Workers' Union (ULWU); Rogelio Concepcion, the president of the Solid Development Corporation Workers' Association (SDCWA); Roberto de la Cruz, an executive board member of the Workers of Tritran Bus Lines Union (WTU) and the Vice-Chair of the Alliance of Bus Workers (AMB); Paquito "Pax" Diaz, the Chairman for Eastern Visayas of the Confederation for Unity, Recognition and Advancement of Government Employees (COURAGE); Crisanto Teodoro, a union organiser for the Association of Democratic Labour Organisations (KMU); and Bishop Alberto Ramento of the Iglesia Filipina Independiente (IFI) and Chair of the National Council of Churches of the Philippines (NCCP), a prominent supporter of workers rights in the Cavite EPZ.
In June, the Supreme Court dismissed sedition charges filed against Crispin Beltran, past Chair of the KMU and an elected member of Congress from the Anakpawis Party, and five of his colleagues. The prosecutors' motion for reconsideration was denied by the court in July, and Beltran was finally released from the Philippines Heart Center facility, where he had been kept in detention since February 2006.
Abduction of Yellow Bus Lines (YBL) union leader: Unlawful sackings and suspension of union members, failure to pay overtime, financial irregularities related to deductions from salaries, management interference in union affairs, and other abuses prompted the YBL Employees Union to file a case with the National Labour Relations Commission (NLRC), and finally on 13 July to issue a notice of strike action to take effect on 20 July. Intervention by the National Conciliation and Mediation Board had little effect in resolving the dispute. Jaime Rosios, the chair of the union's bargaining committee and a member of the union's executive board, became a target of anti-union discrimination. When a bomb went off on one of the company's buses on August 3, causing the death of an employee, management and police sought to pin blame on the union. A janitor at the company was repeatedly interrogated by local police in Koronadal City and pressured to implicate the union.
On 11 August, Rosios was abducted after leaving work by three unidentified men in a sports-utility vehicle. He has not been seen since. Rosios, the janitor, and two other union leaders were all charged on 13 August with violating the draconian Human Security Act 2007, and at year's end the case was still ongoing.
Killing of education union leader Professor Jose Ma. Cui: On 19 January, two armed men entered a classroom at the University of Eastern Philippines where Prof. Cui was monitoring his students as they took their mid-term exam. They shot him in the head and chest, killing him instantly. He was Chairperson of the Employees' Association of the University of Eastern Philippines of the Confederation for Unity, Recognition and Advancement of Government Employees-Northern Samar (COURAGE-NS). The gunmen escaped and no one has been arrested for his murder.
Administrative and legal obstruction by employers: Employers can and often do appeal against unions' right to registration. This seriously hampers organising efforts as the appeal process can be very lengthy.
It remains common practice for employers to file administrative and criminal charges against union leaders and activists and to engage in other delaying tactics to frustrate the formation of unions. Abuse of the legal system by employers included use of libel cases and temporary restraining orders (alleging possible damage to the enterprise).
Widespread use of contract labour is also used to frustrate union organising.
Undermining the right to strike: Both employers and the government take advantage of the restrictions in the law in order to obstruct the right to strike. The requirement to give advance notice to the DOLE gives employers ample opportunity to divide workers and organise reprisals against them. If the workers still go ahead with the strike call, the employers can request that the National Commission on Labour Relations issue an injunction against the strike. Instead of playing an impartial role, the government tends to interfere in labour disputes to the benefit of the employers.
The Labour Secretary has assumed jurisdiction on a number of cases clearly outside the "industry indispensable to national interest" criterion. This does not comply with the ILO definition, which restricts intervention to "essential and indispensable to national interest".
Export processing zones (EPZs): Trade union activity is strongly discouraged in the EPZs. The officials who govern the zones try to block organising by maintaining a "union free, strike free" policy. They claim to have the right to carry out their own labour inspections. There have been many cases where workers who form or join a union, or take union action, have been dismissed. Employers have refused to recognise unions, refused to negotiate, or have set up their own "sweetheart" unions. The DOLE has proved unable or unwilling to enforce labour legislation in the EPZs. EPZ authorities, including the special Philippines Export Zone Authority (PEZA) police who hold jurisdiction in the zones, regularly collaborated with anti-union employers in resisting unions.
For example, during the year, attacks continued relentlessly against striking workers at Cavite Export Processing Zone (CEPZ). The management at the Chong Won factory (now renamed C. Woo, Inc.) continued its persecution against the NMCW-Independent union as part of a campaign of systematic harassment, intimidation and retaliation against NMCW leaders and members.
Similarly since 2006, the Korean-owned Phils Jeon factory has adamantly refused to bargain with the Phils Jeon KMPJI-Independent union despite a final ruling by DOLE that the union was the sole legitimate bargaining agent. Terminations of union leaders, legal proceedings to harass and de-register the union, and attacks against the KMPJI picket line continued in 2007. In 2006, both Philippines Export Zone Authority (PEZA) police and privately hired Jantro Security guards were involved in attacks on the peaceful pickets of the workers outside both factories.
On 9 January, the Chong Won production manager (Antonio Felismino) and a group of supervisors ordered an end to the picket. The union refused. While PEZA police and Jantro security guards watched, a squad of seven hired thugs and 30 contractual workers brought in by Chong Won management surrounded the NMCW union picket, made threats and intimidated the strikers and then forcibly dismantled the union's encampment and confiscated the workers' belongings. When the union secretary Florencio Arevalo objected, she was threatened by one thug with a knife. Over the next several days, the workers refused to leave the area and worked to reconstruct the union picket line. On 17 January, Boyet Lontoc, the head of the factory security guards, and others attacked and again destroyed the union's encampment. However, the union refused to concede ground and rebuilt and maintained the picket.
On 5 February, the Region IV office of DOLE cancelled the registration of the unions at Chong Won and Phils Jeon based on management petitions that the unions claimed contained a majority of signatures that were from non-members of the union. Phils Jeon management promptly moved to have the union expelled from the factory property. The KMPJI-Ind. appealed the DOLE decision and won their appeal in June.
In April, the NRLC declared the Chong Won strike illegal. The union promptly appealed the decision and, in May, Chong Won management issued an order for the workers to vacate the picket line, which the union ignored. The picket-line was again attacked around 8:30 p.m. on 10 June by unidentified armed men. As they tore apart the strikers' tents and belongings, the men told the workers that they had been paid 2 million pesos to destroy their strike and threatened the workers that they would be killed if they continued their protests. On 11 June, 20 masked men armed with M-16 rifles arrived, forced the remaining five unionists onto the ground and held them at gunpoint as the remaining belongings and equipment of the union were seized or destroyed. After the workers left the area, PEZA police and Jantro Security guards sealed off the area and refused to allow the workers to return.
On 6 August, ten unknown men attacked the KMPJI-Ind. union picket in the middle of the night, bound and gagged the two women union members (Aurora Afable and Normelita Galon) sleeping in a tent at the site, and looted and then dismantled the picket. Both women reported that judging from the language and actions of the men, they were police or security officers. The women were taken away in a truck through Cavite Export Processing Zone (CEPZ) checkpoints, and then left tied and blind-folded in a ditch outside the CEPZ. The next morning, the women filed a complaint with the police station at the CEPZ but at the end of the year, there were still no suspects apprehended and the investigation had made little progress.
Public service union leaders fight back against anti-union retaliation: Annie Geron, the Secretary-General of Public Sector Labour Independent Confederation (PSLINK) Philippines and other union members faced a severe anti-union campaign for exposing corruption in the Technical Education Services and Department Authority (TESDA) allegedly committed by Boboy Syjuco, the Director-General of TESDA, accusing him of embezzlement and other corrupt practices. Throughout the year of 2007, senior union figures fought a wave of management harassment, transfers and terminations – but they prevailed when the Philippines Civil Service Commission found that the original transfer orders against the union leaders were invalid. The Civil Service Commission also reported that the circumstances surrounding the transfer indicated that there was intent on the part of the Director-General to try and break the union. The union, supported by Public Services International, filed a complaint (case no. 2546) with the ILO CFA. The complaint was under consideration as the year ended.
Using force to break up protests in Laguna: Members of the UFE-DFA-KMU union at the Nestle factory in Laguna were forcibly dispersed by security guards and the Laguna Industrial Park Police Assistance Group (LIPPAG) on 23 April. On 25 June, security guards at the Nissan Motors used water cannons to disperse striking workers at the Sta. Rosa, Laguna, while LIPPAG officers looked on impassively. The workers, who belong to the BANAL-OLALIA-KMU union, have been on strike since October 2001, alleging Nissan has fired union leaders and refuses to bargain, and demanding that the company implement a 2006 Supreme Court order to reinstate 144 fired union members. On 5 September, security guards used water cannons and baton charges to disperse Nissan union protesters.