Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes a communication dated 24 August 2010 from the International Trade Union Confederation (ITUC) in which it provides its comments on the application of the Convention in law and in practice. The Committee requests the Government to provide its observations thereon.

The Committee recalls that, in its previous observation, it noted the recommendations of the High-level mission which visited the country in September 2009, and the commitment expressed by the Government to embark upon a comprehensive technical cooperation programme on freedom of association and to create a high-level tripartite monitoring body to review the progress. The Committee welcomes the extensive information provided by the Government on the measures taken in this regard as detailed in the comments on the application of Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

Articles 1, 2 and 3 of the Convention. Protection against acts of anti-union discrimination and interference. The Committee notes the Government’s observation on the comments submitted by the ITUC in 2009 on the application of the Convention and, in particular, on the allegation relating to the use of contractual labour as a method to deunionize the workforce. The Committee notes, in particular, the Government’s statement that, under section 243 of the Labor Code, all employees, whether employed for a definite period of time or not,  whether undergoing a period of work probation or not, may establish and join a trade union to bargain collectively. Coercing employees in the exercise of their legitimate rights to organize is a prohibited act. According to the Government, violations of the provisions of the Labor Code regulating contractual engagements would result in regularization of employment status with the contractor/subcontractor or the company.

The Committee notes that for several years it has been requesting the Government to respond to the comments made by the ITUC with regard to the alleged acts of anti-union discrimination and employer interference, as well as cases of replacement of trade unions by non-independent company unions, dismissals and blacklisting of activists in export processing zones (EPZs) and other special economic zones. The Committee regrets that no information has been provided by the Government in this respect. The Committee notes with concern further allegations of anti-union tactics in the EPZs contained in a 2010 ITUC communication, as well as the allegations of anti-union dismissal and anti-union practices at the Temic Automotive Philippines Inc. and Cirtec Electronic Corporation submitted by the Trade Federation for Metals, Electronics and Other Allied Industries-Federation of Free Workers (TF4). The Committee requests the Government to provide its observations thereon. It further requests the Government to submit these specific allegations to the National Tripartite Industrial Peace Council (NTIPC), established on 20 January 2010 as a high‑level monitoring body on the application of international labour standards, and to provide information on the assessment and recommendations made by this body.

The Committee further welcomes the two regional seminars that were conducted in April 2010 on civil rights, freedom of association, collective bargaining, and labour law implementation and enforcement in the economic zones. The Committee encourages the Government to pursue these actions aimed at strengthening the capacity of all relevant government institutions and the social partners in the promotion and protection of labour rights in EPZs.

The Committee had previously noted that certain of the reported acts of anti‑union discrimination and interference related to certification procedures and elections and requested the Government to provide a copy of the relevant legislation, which, according to the Government, eliminates the employer’s interference in such processes. The Committee notes that House Bill No. 1351, previously referred to by the Government, became Republic Act No. 9481 on
25 May 2007, which amended the Labor Code. The Committee notes with satisfaction new section 258-A providing that an employer is not a party to the certification process and therefore cannot oppose a petition for certification election.

The Committee once again requests the Government to indicate any developments as well as any legislative or other measures taken or contemplated to accelerate the procedures and strengthen in practice the protection available against acts of anti-union discrimination and interference, with special emphasis on EPZs and special economic zones. The Committee also once again requests the Government to provide statistical information on the number of complaints of unfair practices and inspections carried out on these matters in EPZs and special economic zones.

Article 4. Collective bargaining in the public sector. In its previous comments, the Committee took note of the Government’s indication that, under section 13 of Executive Order No. 180, only terms and conditions not otherwise fixed by law may be negotiated between public sector employees’ organizations and the government authorities. The Government had further stated that such matters as the scheduling of vacation leave, the work assignment of pregnant women and recreational, social, athletic and cultural activities are negotiable; however, matters relating, inter alia, to wages and all other forms of pecuniary remuneration, retirement benefits, appointment, promotion and disciplinary action were not negotiable. The Committee recalled in this connection that article 76 of the Labor Code provided that the terms and conditions of employment of all government employees, including employees of government-owned and controlled corporations, shall be governed by the civil service law, rules and regulations, and that their salaries shall be standardized by the National Assembly as provided for in the Constitution. The Committee noted, moreover, that the Public Services Labor Independent Confederation (PSLINK), in its communication dated 15 September 2008, also referred to the restrictions on bargaining rights in the public sector. The Committee notes with regret that the Government provides no information on measures taken to fully grant to public sector employees not engaged in the administration of the State the right to negotiate their terms and conditions of employment. In these circumstances, while considering that the Convention is compatible with systems requiring parliamentary approval of certain labour conditions or financial clauses of collective agreements, as long as the authorities respect the agreement adopted, the Committee stresses the importance of the development of collective bargaining in enterprises and institutions in the public sector that are covered by the Convention. The Committee therefore once again requests the Government to take the necessary measures in order to ensure that public sector employees not engaged in the administration of the State enjoy the right to negotiate their terms and conditions of employment in accordance with Articles 4 and 6 of the Convention. It once again requests the Government to indicate the developments in this regard and provide copies of any relevant legislation adopted.