Informe provisional - Informe núm. 383, Octubre 2017

1. 519. The Committee last examined this case at its May 2016 meeting, when it presented an interim report to the Governing Body [378th Report, paras 648–673 approved by the Governing Body at its 327th Session (June 2016)].
2. 520. The Government forwarded its response to the allegations in communications dated 31 May, 29 June and 20 October 2016.
3. 521. The Philippines has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 522. At its May 2016 session, in the light of the Committee’s interim conclusions, the Governing Body approved the following recommendations:
   • (a) The Committee regrets that, despite the time that has elapsed since the presentation of the complaint, the Government has not replied to the complainant’s allegations, even though it has been requested several times, including by means of an urgent appeal, to present its comments and observations on this case. The Committee urges the Government to provide its observations on the complainant’s allegations without further delay.
   • (b) With respect to the alleged acts of harassment and intimidation of several union officials in the Southern Mindanao region, especially Compostela Valley and Davao City, the Committee:
     • (i) requests the Government to take all necessary measures to guarantee the security of Vicente Barrios, Perlita Milallos and the other harassed trade union officials named above, and ensure respect in the future for the principles enunciated in its conclusions;
     • (ii) recalling that, in the framework of Case No. 2528, the allegations of harassment and intimidation had been referred to the NTIPC Monitoring Body for discussion and issuance of recommendations, requests the Government to take the necessary measures to ensure the full and swift investigation and resolution of the current allegations of acts of harassment and intimidation of trade union leaders and members of unions affiliated to the KMU;
     • (iii) requests the Government to take the necessary measures in the future to ensure respect for the principles enunciated in its conclusions and expects that the Government will take the necessary accompanying measures, including the re issuance of appropriate high-level instructions, to ensure the strict observance of due process guarantees in the context of any surveillance and interrogation operations by the army and police in a way that guarantees that the legitimate rights of workers’ organizations can be exercised in a climate that is free from violence, pressure or threats of any kind against their leaders and members;
     • (iv) as to the alleged listing of trade unionists in the so-called “order of battle”, requests the Government to indicate the measures taken to suppress “order of battle” lists which are likely to lead to the commission of acts of violence against trade unionists on the basis of their purported ideology.
   • (c) As regards the alleged presence of military in and around the workplace, the Committee expects that the Government will take the necessary accompanying measures, including the issuance of appropriate high-level instructions, to bring to an end prolonged military presence inside workplaces which is liable to have an intimidating effect on the workers wishing to engage in legitimate trade union activities and to create an atmosphere of mistrust which is hardly conducive to harmonious industrial relations.
   • (d) As to the allegation that the criminal charges brought against Artemio Robilla and Danilo Delegencia were false and linked to the exercise of legitimate trade union activities, the Committee is not in a position to determine, on the basis of the information brought before it, whether these cases concern trade union activities, and requests the Government to submit further and as precise information as possible concerning the legal or judicial proceedings instituted as a result of the charges and the result of such proceedings.
   • (e) 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.

B. The Government’s reply

1. 523. In its communications dated 31 May, 29 June and 20 October 2016, the Government indicates that the Regional Tripartite Monitoring Body of Region XI (RTMB-XI) has been mobilized in gathering relevant information on the five cases of alleged harassment, intimidation, witch-hunting and grave threats committed by the military and police forces against trade union leaders and one case of filing of trumped-up charges against trade union leaders and members, in the Southern Mindanao Region (Region XI). In its report dated 20 March 2015, RTMB-XI reviewed the six cases cited in the complaint to identify whether they were related to freedom of association. Of the six cases, only the case of Rogelio Cañabano, Vice-President of Bigkis ng Nagkakaisang Manggagawa sa Apex Mines –Association of Democratic Labor Organizations – Kilusang Mayo Unio (KMU), was deemed by RTMB-XI as freedom of association related. The Government adds that RTMB XI is continuously providing updates on the status of the cases, most recently on 1 and 14 March 2016. Moreover, as some of the cases allegedly involved the military, the AFP Human Rights Office (AFP–HRO) was requested to ensure that the provisions of the Guidelines on the Conduct of the DOLE, DILG, DND, DOJ, AFP and PNP relative to the exercise of workers’ rights and activities, particularly Rule VIII on respect for workers’ rights during Armed Forces of the Philippines (AFP) internal peace and security operations, are being observed by military units on the ground. The AFP–HRO was likewise requested to investigate the cases of harassment and, if warranted, apply necessary remedies as provided in Rule IX of the Guidelines. The cases were also brought to the attention of the AO35 IAC for investigation, evaluation, monitoring, and resolution.
2. 524. As regards the case involving Vicente Barrios, the Government underlines that this case was already being monitored by the National Tripartite Industrial Peace Council (NTIPC) Monitoring Body and RTMB-XI. The attempted murder of Mr Barrios in 2006 had been initially reported to the ILO under ILO Case No. 2528. According to the RTMB-XI, a harassment incident occurred in December 2013 involving union members of Nagkahiusang Mamumuo sa Suyapa Farm (NAMASUFA) and the incumbent Barangay (township) Captain at that time and contractor of Packing Plant 92, Mr Jesus Jamero, who allegedly fired a warning shot at Mr Barrios while he and around 150 union members were gathered outside the plant in a protest activity (picket). Mr Barrios filed a complaint against Mr Jamero before the local police authorities and, after Mr Jamero pleaded with Mr Barrios not to pursue the case, the parties agreed to amicably settle the matter, and the case is considered closed. Mr Barrios stated for the record that neither the AFP nor the Philippine National Police (PNP) was involved in the incident. According to the RTMB-XI report of 14 March 2016, Mr Barrios confirmed in an interview that the incident with Mr Jamero had been settled at the barangay level. As to the labour dispute, all workers were paid back wages under the compromise settlement of 26 December 2013 in the total amount of 1,125,440 Philippines peso (PHP). (US$22,266). According to Mr Barrios, another harassment incident occurred on 30 December 2014, involving NAMASUFA members and the chief of security and other guards of Packing Plant 92. The guards allegedly removed the streamers that the union members had posted and hanged outside the plant premises, which led to a heated altercation which almost ended in a brawl, but fortunately both parties could be pacified. Mr Barrios has filed a complaint with the relevant Department of Labor and Employment (DOLE) Field Office and has reported the incident to the relevant regional National Conciliation and Mediation Board (NCMB) branch. According to the updated information provided in February 2017, in March 2015, the case of Vicente Barrios was deemed to be a non-freedom of association-related case, since the statements and facts of the case do not clearly indicate who is perceived to be the perpetrator of the harassment and death threats allegedly experienced by the victim, and since there is no mention of any State party involvement in any of the harassment incidents. Moreover, according to an affidavit executed by Mr Barrios in September 2016, one year after the conciliation at barangay level, during a strike conducted by his union, Mr Barrios has again received death threats from Mr Jamero.
3. 525. The Government further reports on the case of Perlita Millalos, President of Freshmax Workers Union – National Federation of Labor Unions (NAFLU) – KMU, who had led a strike against a banana plantation and was active on workers’ concerns. On 26 November 2014, four men wearing civilian clothes who presented themselves as members of the 66th Infantry Battalion of the AFP interrogated her at her residence, asking her whether she was a union president or not and what organization she was a member of, stating that she had often been seen in rallies, enquiring about her activities as a union and community leader and alleging that one of her sons was a member of the New People’s Army (NPA). Ms Millalos denied the allegations and declined their offer of a monthly stipend, cellphone, and load in exchange of her close cooperation with the Government’s counter-insurgency programme and for reporting to him her trade union activities. The Government indicates that, according to the RTMB report of 14 March 2016, Ms Millalos forgot the name of the man, and has not been visited by military personnel since the time of the incident. According to the updated information provided in February 2017, the case of Perlita Millalos was deemed to be a non-freedom of association-related case, since the facts of the case would indicate that the alleged interrogation conducted by the military revolved around her and/or her son purportedly being an NPA member/supporter, and since the fact that she was the union president at the time of the interrogation appeared to be incidental for this case to be concluded as a freedom of association violation. The case was subsequently recommended to be dismissed as non-freedom of association-related.
4. 526. The Government also provides information with respect to Rogelio Cañabano, who allegedly experienced a series of harassments from the military via several instances of interrogation pressing him about the activities of the union and demanding the names of the leaders, members, and organizers of the union. According to the investigation report of 19 March 2015 by the 71st Infantry Battalion (71 IB), the military did not harm or harass the constituents, since the conduct of survey/census in every household is part of the Peace and Development Outreach Program (PDOP). Ms Dominga Cañabano misinterpreted as harassment the conduct of census and picture-taking of her husband and their house by the military on 10 August 2014, whereas the troop’s visit in every household in Barangay. Kinuban is part of the PDOP in order to identify issues and raise them during PDOP meetings, and taking pictures is part of their report and documentation. According to the RTMB-XI Report of 14 March 2016, the following information surfaced from the interview with Mr Cañabano: (i) the good relationship between management and the NPA went sour in September 2014, as management stopped giving monetary assistance to the NPA; (ii) after the NPA allegedly burned a property of the company, management sought the assistance of the AFP, and army personnel went to Mr Cañabano’s house to investigate the incident, tagging him as a member of the NPA; (iii) the army personnel allegedly asked for the list of the union members, saying that the workers have a link with the NPA; and (iv) management would want workers to side against the NPA but some workers sympathize with it because they help them in their labour concerns such as facilitating their regularization with the company. In a validation interview conducted by the Bureau of Labor Relations (BLR) on 26 September 2016, Mr Cañabano executed an affidavit and added that: (i) he personally did not experience any physical harassment from the military but felt intimidated by their frequent visits to his house and repeated questions sometimes wrongly accusing him of committing offenses; and (ii) within one month, the army personnel returned to his house and repeatedly asked about his involvement with “Endog” (tribal organization) and his participation in rallies. Moreover, Mr Cañabano corrected his previous sworn statement, clarifying that he had not been tagged by the army as a NPA member and that the army personnel’s visit in his house was not related to the incident where the NPA allegedly burned a property of the company. According to the updated information provided in February 2017, in March 2015, the case of Rogelio Cañabano was deemed to be a freedom of association related case since the facts clearly indicated that the interrogations conducted by the military revolved around his union activities.
5. 527. In addition, RTMB-XI conducted field validation and gathered information with respect to the case of Artemio Robilla and Danilo Delegencia, President and Board Member of Maragusan DOLE Stanfilco Workers’ Union – NAFLU – KMU, respectively, who were accused of murder and robbery committed against DOLE Stanfilco Supervisor Notalio Mamon in February 2014. An eye witness accompanied and assisted by a company guard, Ms Jennifer Puno-Doong, surfaced and averred the allegations, the alleged motive being the victim’s refusal to provide work for the two accused, along with other co-workers which led to a confrontation followed by death threats. Military personnel led by a certain “Reyes” started to conduct surveillance in the residences of Mr Robilla and Mr Delegencia. During an interview with DOLE Compostela Valley, they admitted that there was a confrontation between them and Mr Mamon but denied committing the act, stressing that they were on duty at the time of the incident and that the distance between the crime scene and their workplace made it impossible for them to commit the act. In February 2016, they indicated to understand that the filing of the criminal charges had been a normal reaction by the family of the victim, while in November 2016 they reiterated their initial belief that the filing of criminal charges had been an act of harassment by management against active union officers. The charges were filed before the Provincial Prosecutors Office with the National Prosecution Service (NPS) Docket No. X1-01-INV-14B-00064 and subsequently, taking into account the counter-affidavits of the accused and irregularities with the address of the witness, referred back to the New Bataan Municipal Police Station for further investigation. Pursuant to Provincial Prosecutor Order of 20 April 2015, the initial finding of probable cause against Mr Robilla and Mr Delegencia was reversed with finality, given that, in view of its ruling of 7 January 2015 on the first motion for reconsideration where it had already reversed its earlier findings on probable cause, the Office of the Provincial Prosecutor decided not to entertain a second motion for reconsideration. According to the updated information provided in February 2017, in March 2015, it was deemed that the statements and facts did not clearly establish whether or not it is freedom of association related and further investigation was recommended. Considering that the alleged harassment was attributed to the company and not to the Government, RTMB-XI recommends that this case be disposed as non-freedom of association-related. The criminal case filed against Mr Robilla and Mr Delegencia was dismissed.
6. 528. Moreover, the Government provides information on the case of the Radio Mindanao Network (RMN) Davao Employees Union (RDEU) – NAFLU–KMU, where union members employed at the radio station went on strike for 41 days due to unfair labour practice and refusal to bargain, and radio anchors belonging to management allegedly vilified the union officers and the federation in the radio programme “Koskos Batikos”. Of the eight affected employees, only Ms Gina Hitgano was available for interview at the time of the field visit, since Mr Bimbo Ponio and Mr Freeman Joe Gao-ay already resigned from the radio station while the other five affected employees were on-field as field reporters. Ms Hitgano manifested that, during the pickets and strike conducted by the union in September and October 2014, an unidentified person wearing civilian clothes took pictures and videos of them, and a motorcycle and four-wheel vehicle without number plates were roaming and monitoring the conduct of the pickets and strike, and that KMU leaders told them that those unidentified men and vehicles were from the military. Ms Hitgano also affirmed that during the said period, radio anchors from the management side attacked and busted the union and its federation on air, linking them to the communist movement and tagging them as NPA members, and discouraging listeners from joining unions. The Government states that RTMB-XI is in the process of gathering information from the radio anchors as well as from the relevant military unit. The labour dispute itself was resolved through a compromise settlement on 13 November 2014, and the case on illegal strike filed before the National Labour Relations Commission (NLRC) was resolved in favour of the union. According to the updated information provided in February 2017, in March 2015, the case of the RDEU was deemed to be a non-freedom of association-related case, since the facts of the case clearly indicated that the alleged violation was committed by management and there was no mention of any State agent involvement in the incident, and since the conduct of a 41-day strike without any State interference negated the claim of a freedom of association violation. Moreover, all union members were terminated, eight of which on 23 May 2016, pursuant to the Resolution of the NLRC dated 4 November 2015 and 8 March 2016, and the case was pending with the Court of Appeals; on 5 October 2016, following the conduct of a certification election, the RDEU lost and another union won and was issued the sole and exclusive bargaining certification.
7. 529. Furthermore, the Government turns to the allegation that, following the torching incident by the NPA at the farm premises in Compostela Valley, management connived with the military from the 71 IB to call the union for a meeting, and the union officers of Musahamat Farm 2 Workers’ Labor Union – NAFLU–KMU were interrogated with paraphernalia and tarpaulin of the Communist Party of the Philippines (CPP)–NPA–National Democratic Front (NDF) placed in front of them, and made to pose as rebels who surrendered to the AFP, with the proceedings being led by a lieutenant and taped. According to the investigation report of 19 March 2015 prepared by the 71 IB: (i) the lieutenant proceeded on 30 August 2014 to the farm, in coordination with management, to conduct an interview with KMU officers regarding the arson incident of 22 August 2014; (ii) during the interview, the rights of KMU officers were not violated in any way; (iii) the CPP/NPA/NDF propaganda were placed on the table to point out its deceitful misdeed; (iv) the lieutenant talked with the KMU officers calmly, discussing the grievances of the farm workers regarding the lapses of the management with regard to their services to the farm workers, with positive feedback from the KMU officers during the discussion; and (v) the harassment allegations were all fabricated and part of the propaganda effort of the CPP/NPA/NDF. Based on the recent report of the RTMB-XI, a Joint Affidavit executed on 15 May 2015 by two witnesses, Mr Wilfredo Paronda Jacosalem and Mr Marvin Tapaling Dumagpi, security guards at the farm, disclosed the following: (i) the security guards were on duty on 29 August 2014 from 8 to 11 a.m. during which period the lieutenant conducted a meeting with the members and officers of the union with the approval of management through its representative; (ii) prior to the activity being held at the second floor of the administrative building, the security officers were detailed on duty at the guard post situated within 15 metres from it; (iii) during the activity, they were never notified of any commotion, harassment or intimidation arising from the meeting between the military and the union officers and members; (iv) the military referred to the log-in and log-out requirements pursuant to the rules and regulations of management pertaining to security concerns, and the record book shows that no incident occurred during that period; and (v) the security guards did not notice any streamer, tarpaulin and other printed materials in the possession of the military who only had with them their firearms, magazine pack and backpack upon entering the vicinity.
8. 530. Nonetheless, according to a Joint Affidavit executed in 2016 by two union officials, Espiridion Cabaltera and Bernardita Almero: (i) some CPP–NPA paraphernalia were laid on the table and the union officers were made to sit down before it; (ii) the army personnel took pictures and videos of them while sitting in front of the CPP–NPA paraphernalia, and the union officers believed that the army personnel made it appear that they own the paraphernalia; (iii) the lieutenant was supervising the meeting which lasted for five hours; (iv) the army personnel were in their full battle gear, and the union officers felt harassed with their presence; (v) the discussion was about the arson incident, and the union officers believed that the army wanted to establish that they have a linkage with it, but they did not know anything about it; and (vi) in 2016, the 46 IB has been conducting community meetings tagging NAFLU–KMU as CPP–NPA, including in the framework of their “Operation Sabit” (posting of streamers regarding labour concerns), and discouraging the participants to join NAFLU–KMU saying that they will subsequently be recruited as members of the CPP–NPA. According to the updated information provided in February 2017, in March 2015, it was deemed unclear by RTMB-XI whether or not the case of the Musahamat Farm 2 Workers’ Labor Union is freedom of association related, and further investigation was recommended since the facts of the case merely indicated that the alleged victims had been interrogated by the military and made to pose as rebel surrenders but there was no information on the reasons and content of the interrogation.
9. 531. Lastly, according to the updated information provided by the Government in February 2017, the military indicated that: (i) it did not harm or harass the constituents; (ii) the complainants misinterpreted as harassment the conduct of survey/census in every household which is part of the PDOP; (iii) under this programme, the army personnel would conduct house-to-house visits and interviews, take pictures as part of the documentation and ask for their membership to an organization to ensure that assistance to be provided will not be redundant; (iv) the people-centred PDOP was never intended to infringe workers’ rights to freedom of association but rather to regain the trust and confidence of the people because of its focus on identifying and addressing issues as the root causes for insurgency; and (v) the PDOP is the essential tool of the AFP that aims to win the peace instead of simply defeating the enemy and entails the conduct of non-traditional military activities focusing on the welfare of the community. The Committee also notes that, according to the investigation report of 19 March 2015 prepared by the 71 IB on the case of the Musahamat union, the harassment allegations were all fabricated and part of the propaganda effort of the CPP/NPA/NDF, and that its legal front, the KMU–Southern Mindanao Region (SMR), was filing complaints to the ILO to disrupt the PDOP effort and discredit the army personnel in the area and the AFP as a whole.

C. The Committee’s conclusions

1. 532. The Committee notes that, in the present case, the complainant organization alleges harassment, intimidation and threats against trade union leaders and members by the armed forces in collusion with private companies.
2. 533. The Committee notes with concern that, of the three cases of alleged harassment involving military personnel, only the case of Rogelio Cañabano was deemed by RTMB-XI as freedom of association related, notwithstanding the allegations that: (i) Perlita Milallos, union activist, had been repeatedly asked by military about her union function and her union activities and bribed to report on the latter; and (ii) Musahamat union members and leaders had been convoked by the employer to a meeting on the employer’s premises and interrogated by heavily armed military for several hours. Generally, the Committee considers that the Government should ensure that, with respect to the working of the non judicial monitoring bodies such as the IAC or the RTMBs, the criteria used for screening cases for its consideration should be broader than the judicial criteria used by the courts so as to not unduly exclude possible freedom of association cases and to ensure that labour activity or trade union function, even though other factors may be being considered, give rise to an in-depth review of the possible motivation. The Committee also requests the Government to take the necessary measures to ensure the full and swift investigation and resolution of the alleged acts of harassment of the above trade union leaders and members of KMU-affiliated unions, even if not committed by State actors, and to report on any investigation conducted and any remedies applied, including by the IAC and the AFP–HRO. The Committee also requests the Government to keep it informed on any forthcoming NTIPC-MB resolutions on the above cases.
3. 534. The Committee notes that the draft RTMB-XI Action Plan initially provided for the conduct of orientation/seminars on Conventions Nos 87 and 98 and trade union rights with the AFP and PNP officers and personnel, discussions on trade union rights in AFP curriculums; and personal talks of selected RTMB-XI members with the family of the victims; and that, eventually, in the relevant cases, RTMB-XI recommended the conduct of orientation/seminars on Conventions Nos 87 and 98 and trade union rights with the AFP personnel. The Committee notes with interest that, on 31 May 2016, the RTMB-XI has issued Resolution No. 1, series of 2016, calling on the AFP to ensure that the provisions of the Guidelines on the Conduct of the DOLE, DILG, DND, DOJ, AFP and PNP relative to the exercise of workers’ rights and activities, particularly Rule VIII on respect for workers’ rights during AFP internal peace and security operations, are being observed by military units on the ground. The Committee trusts that the integration of human rights in the curriculum of the AFP and PNP and the conduct of related training and capacity-building activities for the latter, will be sustained, also integrating specific modules on freedom of association and labour rights in recruitment and in the curriculum and training of the PNP and AFP, including anonymized case work and real situations, taking inspiration from the ILO training materials prepared in respect of military, police and security forces. The Committee expects once again that the Government will take the necessary accompanying measures, including the issuance of appropriate high-level instructions and training, to: (i) ensure the strict observance of due process guarantees in the context of any surveillance, interrogation or other operations (such as “Operation Sabit”) by the army and police in a way that guarantees that the legitimate rights of workers’ organizations can be exercised in a climate that is free from violence, pressure or threats of any kind against their leaders and members; and (ii) to restrict as far as possible prolonged military presence inside workplaces which is liable to have an intimidating effect on the exercise of trade union rights [see also 356th Report, Case No. 2528, para. 1184]. The Committee encourages the Government to continue to take steps to raise awareness in the army and police about the need to disassociate the conduct of legitimate trade union activities from insurgency.
4. 535. In the remaining three cases concerning Mr Robilla and Mr Delegencia, the RDEU and Mr Barrios, the Committee notes that RTMB-XI recommended that the cases be disposed as non-freedom of association related, since the alleged harassment was attributed to the company or a private person and not to the Government. The Committee recalls that the Government has the duty to defend a social climate where respect for the law reigns as the only way of guaranteeing respect for and protection of individuals, and that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 34 and 44]. The Committee trusts that the Government will also establish fast-track procedures for freedom of association violations committed by non-state actors and requests to be kept informed of developments.
5. 536. Lastly, the Committee takes due note of the fact that the criminal charges concerning Mr Robilla and Mr Delegencia were dismissed. Concerning the case regarding Vicente Barrios, which was resolved at the barangay level, the Committee strongly requests the Government to take all necessary measures to guarantee his security, particularly in view of the new death threats reportedly directed against him and to report on the outcome of the proceedings instituted with respect to the most recent alleged act of harassment. As to the case concerning the RDEU, observing that, following the alleged vilification by management, the union lost the certification election, the Committee requests the Government to take the necessary measures to ensure the full and swift investigation and resolution of the alleged acts of harassment of trade union leaders and members of the RDEU. Furthermore, noting with concern that, while the case on illegal strike filed before the NLRC had been initially resolved in favour of the union, all RDEU members were terminated following more recent NLRC Resolutions on the subject, the Committee requests the Government to provide a copy of these NLRC resolutions and to keep it informed of the outcome of the ongoing appeal proceedings in this regard.