Observación (CEACR) - Adopción: 1998, Publicación: 87ª reunión CIT (1999)

The Committee notes the information provided in the Government's report, including the copy of Department Order No. 09, attached thereto, which took effect on 21 June 1997 and amends the rules implementing Book V of the Labor Code.

The Committee notes that it has previously commented upon the following discrepancies between the national legislation and the requirements of the Convention:

-- compulsory arbitration in industries "indispensable to the national interest" (Labor Code, section 263);

-- disproportionate sanctions for participation in illegal strikes (Labor Code sections 264(a) and 272(a); Penal Code section 146);

-- the registration requirement that at least 20 per cent of workers in a bargaining unit are members of a union (Labor Code section 234(c));

-- the requirement of ten unions to establish a federation (section 237(a));

-- the restriction on the right of aliens to engage in trade union activities (sections 269 and 272(b))

-- the requirement that officers of a union operating in an enterprise be employed in that enterprise (Rule II(3)(f) of Book V implementing the Labor Code).

Compulsory arbitration

In its previous comments, the Committee had noted that section 263(g) of the Labor Code, as amended, permits the Secretary of Labor and Employment to submit a dispute to compulsory arbitration, thus bringing an end to a strike, in situations going beyond essential services or an acute national crisis. The provision endows the Secretary with such authority where he or she is of the opinion that there exists "a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest". The provision goes on to empower the President to determine "the industries that, in his opinion, are indispensable to the national interest", and allows him to intervene at any time and assume jurisdiction "over any such labor dispute in order to settle or terminate the same". The Government states in reply that the President's power to intervene in strikes is not without limitation since such intervention may only be exercised regarding industries indispensable to the national interest. While noting the Government's statement, the Committee must again point out that this provision of the Labor Code is drafted in such general terms that it could be applied in situations extending well beyond those in which strike action may be limited or prohibited in conformity with the Convention. It recalls that such intervention is permissible only in the following cases: (i) in essential services, i.e. those services the interruption of which would endanger the life, personal safety or health of the whole or part of the population; (ii) in acute national crises to the extent necessary to meet the requirements of the situation and only for a limited period; and (iii) concerning public servants exercising authority in the name of the State.

Given the importance of the right to strike as one of the essential means available to workers and their organizations for the promotion and protection of their economic and social interests, and that the criteria for restricting strikes in section 263(g) goes beyond the three situations outlined above, the Committee urges the Government to take measures to amend the legislation to bring it into conformity with the requirements of the Convention.

Sanctions for striking

The Committee notes that it has been calling on the Government for a number of years to review and amend sections 264(a) and 272(a) of the Labor Code, and section 146 of the Penal Code which impose sanctions and penalties for participation in a strike. With respect to section 264(a), which permits a union officer to be dismissed for participation in an illegal strike, the Government again indicates that the provision does not apply to a union officer participating in a legal strike, and asserts that the provision is aimed at "improving the conditions of labor and establishing peace". The Government states further that section 272(a), providing for a fine and/or imprisonment of not less than three months and not more than three years, applies only in the limited circumstances set out in section 264. The Committee recalls, however, that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association (see General Survey on freedom of association and collective bargaining, 1994, paragraph 177). As noted by the Committee and acknowledged by the Government in previous reports, some of the limitations on strike action contained in the legislation are not in conformity with the principles arising from the Convention; therefore, any sanctions imposed for the violation of such provisions are equally incompatible with the Convention.

With respect to section 146 of the Penal Code, the Government indicates that it addresses two types of illegal assemblies: (i) a meeting attended by armed persons for the purpose of committing any crime; (ii) a meeting where the audience is incited to the commission of treason, rebellion, sedition or assault. It states further that the reference in the section to "meeting" should not be construed as including picketing unless such picketing is attended by armed persons for the purpose of committing any crime, or it incites the audience to the commission of treason, rebellion, sedition or assault. The Committee is again obliged to point out that paragraph 3 of section 146 refers to participation in "any meeting which is held for propaganda purposes against the Government...", and that "meeting" is defined to include "picketing of labour groups and similar group actions". While noting the point made by the Government in its report that a person punished under section 272 of the Labor Code will not be subject to prosecution under the Penal Code, the Committee nevertheless remains of the view that the sanctions for strike action (including picketing) provided under the Labor Code and the Penal Code are unduly harsh, and not proportionate to the offences, in particular, penalties of imprisonment should not be imposed in the case of peaceful strikes. The Committee, therefore, again requests the Government to amend the provisions of the Penal Code and the Labor Code to ensure that the sanctions imposed for illegal strikes are commensurate with the nature of the offence.

Limitations on the right to join and form organizations

In its previous comments, the Committee noted the following discrepancies between the Labor Code and Articles 2 and 5 of the Convention: (i) the requirement for registration that at least 20 per cent of the workers in a bargaining unit are members of a union (section 234(c)); (ii) the requirement of too high a number of unions (ten) to establish a federation (section 237(a)); and (iii) the prohibition of aliens -- other than those with valid permits if the same rights are granted to Filipino workers in the country of origin of the alien worker -- from engaging in any trade union activity (section 269) under penalty of deportation (section 272(b)). The Committee notes with regret that these restrictions have recently been confirmed by virtue of Department Order No. 09 amending the rules implementing Book V of the Labour Code, in particular Rule III(2)(b), Rules I(1)(m) and III(2)(II), and Rule II(2) respectively. Given the importance of the right of workers to establish and join organizations of their own choosing and of workers' organizations to establish and join federations and confederations without previous authorization, the Committee urges the Government to consider reviewing and amending the provisions of the Labor Code and the Rules implementing the Labor Code, to bring them into conformity with the clear requirements of Articles 2 and 5 of the Convention.

Limitations on the right to elect representatives in full freedom

In its previous comments, the Committee drew attention to Rule II(3)(f) of Book V implementing the Labor Code, which provides that officers of a union operating in an enterprise must be employed in that enterprise. In addition, under the Labour Code, the term "employee" includes "any individual whose work has ceased as a result of or in connection with any current labour dispute or because of any unfair labour practice if he has not obtained any other substantially equivalent and regular employment". The Committee had noted that such legislation entails the risk of interference by the employer through the dismissal of trade union leaders for exercising legitimate trade union activities with the result (or even the intention) of depriving them in the future of holding a position as a trade union officer, and requested the Government to take steps to render the requirement more flexible so as to allow, for example, a reasonable proportion of union officers to come from outside the particular enterprise or to admit as candidates persons who have previously been employed in the occupation or enterprise concerned (see General Survey, op. cit., paragraph 117). In its report, the Government notes with interest this recommendation and advises that it will inform the Committee of the actions taken in consideration of the recommendation. The Committee takes due note of this statement, and expresses the hope that it implies a desire on the part of the Government to bring this provision into conformity with the requirements of Article 3 of the Convention by allowing organizations to elect their representatives in full freedom.

The Committee expresses the firm hope that the Government will, without further delay, take measures to bring the legislation into fuller conformity with the requirements of the Convention, and requests to be kept informed of any measures taken or envisaged in this regard.

The Committee is also addressing a request directly to the Government.