Observación (CEACR) - Adopción: 1990, Publicación: 77ª reunión CIT (1990)

The Committee notes the information supplied by the Government representative to the Conference Committee in 1989. It also notes the conclusions of the Committee on Freedom of Association in Case No. 1444 (268th Report of the Committee on Freedom of Association, approved by the Governing Body at its November 1989 Session) and the adoption of Act No. 6715, which came into force on 2 March 1989, to amend the Labour Code, and in particular Book V (labour relations) and the Regulations issued thereunder which came into force on 7 June 1989. Although these texts make a number of positive changes, particularly as regards limiting the supervisory powers of the authorities over trade union finances and the trade union rights of aliens, they continue not to be in full conformity with the requirements of the Convention on several points.

The Committee recalls that its comments dealt with the following points:

Articles 2 and 5 of the Convention

- the requirement for at least 20 per cent of the workers in a bargaining unit to be members of a union for the union to be registered (section 234(c) of the Labour Code);

- the requirement of too high a number of unions to establish a federation or a central organisation (section 237(a));

- the prohibition of aliens from engaging in any trade union activity (section 269) under penalty of deportation (section 272(b)).

Article 3

- the broad powers of inquiry of the Secretary of Labor into the financial affairs of trade unions;

- the requirement of a majority of union members in a bargaining unit for the calling of a strike (section 263(f)), whereas a simple majority (excluding those workers not taking part in the ballot) of a bargaining unit should be sufficient for this purpose;

- compulsory arbitration when, in the opinion of the Secretary of Labor and Employment, a planned or current strike affects the national interest, including industrial export zones, which result in restrictions on the right to strike in non-essential services (section 263(g) and (i));

- sentences in the event of illegal strikes: the dismissal of trade union officers (section 264(a)); penal liability under section 272(a) which provides for the possibility of a maximum prison sentence of six months, or under section 164 of the revised Penal Code relating to illegal strikes which provides for sentences of penal servitude for life for the organisers or leaders of strikes or collective actions deemed to be for propaganda purposes against the Government, and imprisonment for pickets for strikes or collective actions deemed to be for propaganda purposes against the Government.

1. The Committee notes with satisfaction that section 274 of the Labour Code respecting the powers of inquiry into the financial affairs of trade unions has been amended and only authorises the authorities to undertake such inquiries upon the filing of a complaint that is duly supported and is signed by at least 20 per cent of the members of a bargaining unit.

2. As regards the trade union rights of alien workers, the Committee takes due note that, by virtue of section 269, as amended by Act No. 6715, aliens with valid permits issued by the Department of Labor and Employment may establish organisations of their own choosing and join them. However, the Committee notes that the legislation still requires, for the granting of trade union rights to aliens, that the same rights are granted to Filipino workers in the country of origin of the alien worker. Any violation of the provisions of Title VIII respecting strikes and lock-outs and the participation of aliens in trade union activities may result in the immediate deportation of alien workers (section 272(b)).

In its 1983 General Survey on Freedom of Association and Collective Bargaining, the Committee of Experts indicated in paragraph 97 that restrictions based on nationality may, among other effects, prevent migrant workers from playing an active role in the defence of their interests, especially in sectors where they are the major source of labour.

The Committee therefore requests the Government to amend its legislation so as to guarantee the trade union rights of aliens working legally in the country without distinction on grounds of reciprocal conditions.

3. In its previous observation, the Committee indicated that the powers of the Secretary of Labor and Employment to prevent or terminate a strike, when the dispute affects the national interest, may constitute a restriction on the right of workers to take strike action in non-essential services.

Although it notes that certain amendments introduced by Act No. 6715 are along the lines of observing the principles of the Convention, the Committee nevertheless notes that by virtue of section 263(g), as amended, the Secretary of Labor and Employment may still prevent or terminate a strike by referring a dispute to compulsory arbitration when it takes place in an industry that is indispensable to the national interest (without giving other details).

The Committee once again recalls that the purpose of trade union organisations is to defend the interests of their members; in this connection, they should be able to take strike action, which is considered as one of the essential means of achieving this objective, without the authorities being able to terminate it unilaterally. However, the Committee has always admitted that strikes could be restricted, or even prohibited, in three cases: (1) for public servants acting in their capacity as agents of the public authority; (2) in essential services, i.e. those whose interruption would endanger the life, personal safety or health of the whole or part of the population; (3) in a situation of acute national crisis for a reasonable period. Nevertheless, the wording of section 263(g) empowers the Secretary of Labor and Employment to restrict the right to strike in industries which are not essential in the sense of the Convention.

The Committee therefore requests the Government to take measures to limit restrictions on the right to strike as set out in these comments.

4. As regards penalties for engaging in illegal strikes, the Committee notes that trade union officers who have participated in illegal strikes are still liable to dismissal and that the penal sanctions have been strengthened since, under the terms of the new section 272(a), any person who has engaged in an illegal strike may be punished by a sentence of imprisonment, the minimum length of which has been increased from one day to three months and the maximum from six months to three years. Furthermore, section 164 of the Penal Code has not been repealed.

The Committee emphasises once again that it should not be possible to impose penal sanctions for strikes except where the grounds for their illegality are in accordance with the principles of freedom of association. However, in such cases, the sanctions should be proportionate to the offences committed and penalties of imprisonment should not be imposed in the case of peaceful strikes. It therefore requests the Government to make the sanctions for illegal strikes more flexible within the limits mentioned above.

5. The Committee notes that the provisions respecting the minimum number of members of a trade union, which is set at 20 per cent of the workers of a bargaining unit, for the union to be registered (section 234(c)), the provisions concerning the minimum number of trade unions to establish a federation or a central union organisation, which is fixed at ten (section 237(a)), and the provisions laying down the majority of the members of a trade union in a bargaining unit that are needed in a vote for the calling of a strike (section 263(f)) have not been amended by Act No. 6715.

The Committee also takes due note, from the information supplied by the Government representative to the Conference Committee in 1989, that the National Tripartite Review Committee is now a permanent body convened regularly for the purpose of reviewing legislation in accordance with the principles of the Convention.

The Committee therefore trusts, in the same way as the Committee on Freedom of Association, that the aspects of the legislation that remain contrary to the Convention will be re-examined in the light of its comments. It therefore requests the Government to supply information in its next report on the work of the National Tripartite Review Committee concerning the provisions of the national legislation that are not in conformity with the Convention and on the measures that the Government plans to take to give full effect to the Convention.

The Committee reminds the Government that the ILO is at its disposal for any assistance that it may need for the current revision of the legislation in order to bring the whole of its legislation into conformity with the requirements of the Convention.