Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 389, Junio 2019

Effect given to the recommendations of the committee and the Governing Body

1. 70. The Committee last examined this case of a Supreme Court decision finding that workers who shaved or cropped their hair while at work had engaged in an unprotected illegal strike, and thus upholding the dismissal of 29 trade union officers and allowing the dismissal of 61 trade union members, in violation of the principles of freedom of association and expression, at its October 2010 meeting [see 358th Report, approved by the Governing Body at its 309th Session, paras 827–867]. On that occasion, the Committee made the following recommendations [see 358th Report, para. 867]:
   • (a) The Committee requests the Government to keep it informed with regard to the initiated legislative reform, which according to the Government should result, among others, in amending article 263(g) of the Labor Code.
   • (b) Noting the Government’s indication that it has met with the relevant parties and commenced exploratory talks on possible “out-of-the-box” solutions to the conflict, the Committee requests the Government, within this context, to review with the hotel management and the dismissed workers concerned the feasibility of their reinstatement and for those who cannot be immediately reinstated, the possibility of including them in work rosters for their re-engagement on a priority basis or of adequately compensating them. It further requests the Government to review the adequacy of the separation payment provided to the 61 dismissed trade union members with a view to ensuring that they are sufficiently compensated proportionate to the losses incurred. The Committee requests the Government to keep it informed of the progress made in reaching a satisfactory solution for all concerned.
2. 71. The complainants provide additional information in communications dated 27 October 2010, 30 April 2013 and 8 May 2019. They call on the Committee to examine the case so that the Government would be directed to respect and comply with international treaties, including ILO Conventions, and allege that even though the Department of Labor and Employment (DOLE) has taken some steps to ensure compliance with the Committee’s recommendations, all its initiatives failed to move the hotel 1 to abandon its recalcitrant attitude. The complainants allege that there is no development on the proposed “out-of-the-box solution”, the Government did not extend any support to the workers with the supposed livelihood programme and the dismissed workers, even though visited by the management at their homes, have not accepted any remuneration. Furthermore, the Supreme Court continues to expunge from the records the motions filed by the workers questioning the constitutionality of the substantive and procedural aspects of the relevant decision, without addressing such issues, and the Solicitor General has yet to intervene in the judicial process and call on the Supreme Court to review the case en banc. The dismissed union officers and members have been individually writing to the Associate Justices of the Supreme Court to plead with them to review the case, the latest motion for reconsideration was filed in September 2018 and the complainants believe that it is the Court’s responsibility to hear the case en banc. Finally, the complainants denounce that the local union established by the management has been organized again and is now an affiliate of the National Union of Workers in Hotel Restaurant and Allied Industries (NUWHRAIN).
3. 72. The Government provides its observations in communications dated 15 November 2010, 1 June 2011 and 26 May 2014. With regard to the dispute between the hotel management and the hotel trade union which involves allegations of anti-union dismissals, the Government reiterates that the DOLE has extended the possibility of exploring acceptable “out-of-the-box solution” to both parties and adds that, while exploratory discussion was held with the hotel management on reinstatement of the concerned workers in other positions or jobs, the DOLE and the union were also looking at immediate remedial intervention for the affected workers, such as a livelihood grant. According to the Government, the possibility of reinstatement of the workers was nil given the finality of the Supreme Court decision and the union president also considered reinstatement not feasible given that the same management and lawyers were still handling the case. Nevertheless, the union was preparing a project proposal and their capability to implement the livelihood grant. The DOLE also requested the hotel management and the union to meet to explore options with respect to the Committee’s recommendations, as well as a meeting with the High Court’s representatives to discuss the issues arising from the relevant decision but the meetings have not materialized and the Committee’s recommendations were thus presented before the National Tripartite Industrial Peace Council Monitoring Body (NTIPC-MB).
4. 73. The Government further informs that two Labor Sector Joint Resolutions were issued relative to the present case. Firstly, Joint Resolution No. 2, Series of 2013, entitled “Calling on All Government Agencies to Uphold the Protection and Promotion of Workers Rights”, asking the DOLE and the Department of Budget and Management to inform all government offices to refrain from engaging companies or business organizations found to be violating the rights of its workers, and to include the observance of these rights as a factor in the procurement of products and services from companies or business organizations. The present case was used as a specific example and the resolution was forwarded to all government agencies, branches and instrumentalities. Secondly, Joint Resolution No. 3, Series of 2013, entitled “Calling on the Office of the Solicitor General to Make Manifestation before the Supreme Court on the Dusit Case”, asking the Office of the Solicitor General (OSG), as the people’s advocate, to make the necessary intervention for the Supreme Court to take cognizance of the ILO recommendations and review en banc the decision of the Second Division which allegedly expanded the legal definition of strike to include peaceful modes of speech or expression which is a blatant violation of Article 8(2) of Convention No. 87. This resolution has been forwarded to the OSG but it informed that neither the OSG nor other legal bodies had power to intervene for the reopening of the case, considering that the decision was final and executory and only the Supreme Court could, motu proprio, order the reopening of the case.
5. 74. With regard to the amendment of article 263(g) of the Labor Code, the Government provides detailed information about the ongoing legislative reform and indicates that one part of the reform which focuses on strengthening trade unionism and removing obstacles to the effective exercise of labour rights has been moving forward. In particular, a draft bill was submitted to the NTIPC seeking to amend article 263(g) of the Labor Code which authorizes the Secretary of Labor and the President to assume jurisdiction over labour disputes imbued with national interest. The amendment limits the assumption of jurisdiction to the ILO’s concept of essential services and removes criminal sanction for mere participation in illegal strike on the ground of non-compliance with the administrative requirements. The Government informs that the draft bill underwent tripartite consultations and was later substantially modified to reflect the discussion with ILO experts. It affords flexibility in determining the industries providing essential services based on the prevailing circumstances in the country and merely sets the “essential services” criterion as a guidepost for a list of industries providing “essential services” as determined through tripartite consultation. The draft bill thus seeks to limit the automatic issuance of assumption of jurisdiction to two situations, one concerns the ILO concept of essential services or industry determined through tripartite consultation as providing essential services, which if interrupted would endanger the life, personal safety or health of the whole or part of the population and the second relates to non-essential services upon request from both parties involved in the labour dispute after mandatory conciliation.
6. 75. The Government further informs that several interim administrative measures were taken, namely, the approval by the NTIPC of Department Order No. 40-G-03, Series of 2010, amending Department Order No. 40, Series of 2003, providing the implementing rule on the exercise of the assumption of jurisdiction power of the Secretary of Labor under article 263(g) of the Labor Code. In February 2011, Operational Guidelines on Department Order No. 40-G-03, Series of 2010 were also issued so as to further clarify its implementation, harmonize it with other guidelines and set out when and how the police will be engaged in strikes and lockout. According to the Government, the application of the Department Order in actual cases has been on the use of intensive conciliation–mediation rather than resort to the Secretary’s assumption power, and the percentage of labour cases in which the Secretary has assumed jurisdiction out of the total number of labour cases has markedly decreased. In October 2013, a DOLE Department Order No. 40-H-13 was issued in order to further help shift the exercise of the assumption of jurisdiction power from the criteria of “industry indispensable to the national interest” to “essential services” criteria. The Department Order provides an indicative list of industries indispensable to the national interest harmonized with the essential services criteria of Convention No. 87. These industries include the hospital sector, electric power industry, water supply services (except small water supply services, such as bottling and refilling stations) and air traffic control, and other industries may be included upon recommendation of the NTIPC. The Department Order also reiterates the procedure for the exercise of the Secretary’s assumption power, where either or both parties shall invoke the exercise of the assumptive power through a petition for assumption of jurisdiction. If invoked by both parties, its issuance is automatic regardless of the category of the industry; if invoked by one party, the petition would trigger the conduct of an exhaustive conciliation under the Office of the Secretary until settlement is reached. In both instances, conciliated agreement is worked out and arbitral award is the last resort. The Department Order was crafted through the NTIPC, the tripartite partners were able to fine-tune its features during its implementation and the positive experience contributed to their tripartite endorsement. According to the Government, the Administrative Order is expected to facilitate the passage of the Assumption of Jurisdiction Bill in the Congress.
7. 76. Finally, the Government provides detailed information on other aspects of the legislative and institutional reforms ongoing in the country, especially in the labour arbitration and adjudication system, including extensive capacity-building and awareness-raising activities on freedom of association and collective bargaining, as well as on compliance with other international labour standards.
8. 77. With regard to the allegations of anti-union dismissals and the 2008 Supreme Court decision upholding the dismissal of 29 trade union officers and allowing the dismissal of 61 trade union members, the Committee understands from the information provided by the Government and the complainants that despite specific efforts by the Government to ensure compliance with the Committee’s previous recommendations, including arrangement of meetings between the parties and a request to the Solicitor General to intervene with the Supreme Court to review the contested decision, no significant developments have been achieved in redressing the situation of the dismissed workers. Further noting that both the hotel union and the Government, albeit for different reasons, consider that reinstatement of the concerned workers is not feasible and that the Committee’s recommendations were presented before the National Tripartite Industrial Peace Council Monitoring Body (NTICP-MB), the Committee trusts that progress will be made without delay towards reaching a satisfactory solution for all concerned and requests the Government to provide updated information on the current situation of the dismissed workers, including any compensatory settlement agreements reached, as well as on the allegation that a management-supported union was again established in the hotel. The Committee further requests the Government to inform it of any findings made by the NTICP-MB in this regard, as well as any measures taken as a result thereof.
9. 78. Concerning the amendment of article 263(g) of the Labor Code (now renumbered as article 278(g)), the Committee notes the Government’s indication that a draft bill was introduced into Congress seeking to limit the automatic issuance of assumption of jurisdiction to two situations, one concerning the ILO concept of essential services determined through tripartite consultation and another in non-essential services upon request from both parties involved in the labour dispute after mandatory conciliation. In addition, Department Order No. 40-H-13 was issued to help shift the exercise of the assumption of jurisdiction power from the criteria of “industry indispensable to the national interest” to “essential services” criteria and should, according to the Government, facilitate the passage in Congress of the Assumption of Jurisdiction Bill. While taking due note of the Government’s efforts and of the administrative measures adopted in this regard, the Committee recalls that the legislative reform aiming at amending article 278(g) of the Labor Code has been ongoing for many years. In these circumstances, the Committee expects the legislative amendments to be adopted in the very near future and to keep it informed in this regard.