Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 391, Octubre 2019

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

1. 28. The Committee last examined this case, in which the complainant alleged anti-union dismissal of 15 union officers of the University of San Agustin Employees’ Union – FFW (USAEU) in retaliation for the staging of a strike, as well as partiality of the judicial authorities, at its June 2011 meeting [see 360th Report, approved by the Governing Body at its 311th Session, paras 105–115]. On that occasion, the Committee expressed its expectation that adequate livelihood assistance would be granted without delay to the dismissed workers, requested the Government to continue to take active steps to intercede with the parties for the purpose of conciliating a solution and urged the Government to take all necessary measures to conduct an independent inquiry into the allegations of anti-union discrimination in the Eon Philippines Industries Corporation (enterprise A) and the Capiz Emmanuel Hospital in Roxas City (enterprise B).
2. 29. The complainant provides additional information in communications dated 12 January and 1 October 2012, 3 May 2013 and 10 May 2014. With regard to the Government’s commitment to facilitate employment of the dismissed workers, the complainant alleges that even though many vacancies were posted by different Government agencies and the workers submitted application letters and complied with qualification requirements, the Government refused to hire any of the terminated workers. In one instance, the Government instructed some of the workers to take exams and interviews, only to be told later that the said position was already reserved for another candidate.
3. 30. Concerning the livelihood assistance grant for the dismissed union officers and departmental representatives, the complainant informs that in February 2012, the Government offered to grant a one-time amount of 10,000 Philippine pesos (PHP) (US$238) as an individual livelihood project. The complainant considers this amount outrageous, especially since it was supposed to be the Government’s out-of-the-box solution in exchange for the Committee’s recommendations for the immediate reinstatement with full back wages and benefits, and suggests that the terminated workers should each be receiving around PHP2,000,000 (US$47,960) representing back wages (without benefits) and reinstatement. The complainant further states that this sham offer was accompanied by a Government letter containing several falsehoods on the follow-up given to the February 2012 meeting. In a response dated 2 March 2012, the complainant underlined these fabricated facts and conveyed the workers’ out-of-the-box counter proposal consisting of accepting full back wages from the time of dismissals in April 2005 until the final decision of the Supreme Court on the dismissal case, accompanied by a separation pay of one month per year of service. The complainant requested the Government to forward this proposal to the new set of administrators at the University but has not received any reply. At the same time, two of the terminated workers – Mr Rudante Dolar and Ms Ma Luz Calzado – were contacted by the Department of Labor and Employment (DOLE) and asked to sign a document stating that they were withdrawing their complaint before the ILO but the workers refused to do so.
4. 31. As to the judicial proceedings concerning dismissals, the complainant indicates that: (i) the Court of Appeals denied the complainant’s January 2011 motion for reconsideration of its previous decision ruling that the dismissal of USAEU committee members was legal; (ii) on 25 August 2011, the complainant filed a petition for review on certiorari before the Supreme Court, illustrating in more than 100 pages the complete circumstances surrounding the massive dismissal of USAEU officers, the continuing clear interference in purely union affairs and union-busting by the University management, as well as the questionable decisions and resolutions by the Court of Appeals and the National Labour Relations Commission (NLRC) on the matter of dismissal; (iii) the Supreme Court denied the petition for late filing and for failing to sufficiently show that the Court of Appeals committed any reversible error in the challenged decision; (iv) on 9 December 2012, the complainant filed a motion for reconsideration of the decision arguing that petitions filed with a one-day delay have been previously accepted by the Supreme Court and that several constitutional issues needed to be authoritatively explained and resolved by the Supreme Court, which has exclusive jurisdiction in this regard; and (v) the motion for reconsideration was denied by the Supreme Court, ruling that there was no compelling reason nor any substantial argument to warrant a modification of the Court’s resolution and the complainant filed a second motion for reconsideration. The complainant adds that the Government did not make the necessary intervention with the courts on the pending illegal dismissal case and still refuses to investigate union-busting activities by the University, which installed a new set of union officers who simply do the bidding of the management. Furthermore, there is still no re negotiation of the collective bargaining agreement at the University and the last negotiations date back to April 2003.
5. 32. Concerning the allegations of partiality of the judicial authorities, the complainant reiterates that it has been submitting arguments and documents about corruption in the judiciary since 2006 but that these have been ignored by the Government. Furthermore, in 2014, the Chief Justice of the Supreme Court was impeached and removed from office due to corruption. The complainant explains that the concerned judge was part of the Second Division of the Supreme Court which had overturned the initial decision of the Secretary of Labour by declaring the complainant’s 2003 strike illegal and was also part of the former First Division of the Supreme Court which had dismissed the union’s case for illegal dismissal and unfair labour practices, as well as its motion for reconsideration.
6. 33. Finally, with regard to the allegations of anti-union discrimination at enterprises A and B, the complainant alleges that the Government still refuses to investigate these allegations and that there are no trade unions since all members were dismissed from their jobs.
7. 34. The Government provides its observations on several of the pending issues in communications dated 5 March 2012, 2 May 2013, 26 May 2014 and 1 October 2019. With regard to the dismissal case, the Government recalls the proceedings before the Court of Appeals and the Supreme Court and clarifies that the so-called intervention from the executive cannot go beyond a request to the judiciary to expedite the resolution of the case based on the merits, which has already been done. The Government adds that the persistent use of legal proceedings has made it difficult to broker an out-of-the-box solution. Given the finality of the Supreme Court decision, the management’s refusal to reinstate the workers and the lack of legal basis to compel it to accept a settlement package or re-employment, the DOLE negotiations are mainly anchored on humanitarian consideration. These negotiations thus represent an out-of-the-box approach, before working on other schemes, such as a livelihood grant or employment assistance.
8. 35. Concerning employment assistance, the Government informs that the group of workers submitted their resumes and a list of workers with pending applications in Government agencies. In response, the DOLE sent endorsement letters to help facilitate their application and the DOLE Regional Office received instructions to consider the qualifications of the dismissed union members in case of vacancies. However, employment in Government agencies has to conform to set qualification standards based on merits and promotion and selection boards, as well as the appointing authorities of Government agencies, have discretion to choose applicants they deem better suited to the needs of the organization or agency. The Government further indicates that the Regional coordinator of the Federation of Free Workers (FFW) informed the DOLE Regional Office that some of the terminated workers – Mr Theodore Neil Lasola, Mr Ramon Vacante, Ms Ma Luz Calzado and Mr Rene Caballum – were again employed. As to the allegations that two dismissed workers were asked to withdraw their complaint before the ILO, the Government clarifies that while the DOLE focal person did contact them, the purpose was not to ask to withdraw the complaint but to inquire on the status of the terminated workers.
9. 36. As to the livelihood assistance, the Government informs that it initially offered PHP535,000 (US$10,300) as funding for a consolidated project proposal but the dismissed workers insisted on receiving individual project proposals. Based on the rules governing the livelihood formation programme for terminated workers, the standard per capita cost for an individual beneficiary is PHP10,000 (US$193) and consists of tools and jigs which aim at assisting the affected workers to start their livelihood undertaking and training for skills enhancement. While Mr Lasola, acting as the leader of the dismissed workers, insisted that the livelihood assistance should not be based on per capita standards, this request could not be accommodated as the DOLE livelihood programme is governed by existing rules and regulations which do not permit a one-time PHP1,000,000 (US$19,254) grant to an individual beneficiary. Accordingly, in February 2012, the DOLE met with representatives of the workers on several occasions to discuss the livelihood formation and present options for livelihood projects, including commodity trading, water-refilling station, food processing and Internet station. A DOLE officer was designated to act as the focal person for the delivery of the assistance but the group unanimously agreed to sustain their stand and prioritize the Committee’s recommendations on reinstatement of all terminated union officers, since the amount of the livelihood assistance was insufficient to cover their claims.
10. 37. The Government further indicates that since the case has been pending before the ILO since 2006 and the issues raised by the complainant are merely recurring, the Regional Tripartite Monitoring Body (RTMB) of Region 6 was requested to actively engage the dismissed faculty members, with the aim of crafting and implementing an action plan to finally resolve the pending issues. Mr Lasola manifested that livelihood and possible employment were no longer solutions to the case as all the dismissed officers have again been employed while one officer was abroad. The RTMB is therefore exploring with the parties the possibility of the University management providing financial assistance to the terminated union officers.
11. 38. The Committee takes due note of the detailed information submitted by the complainant and the Government. The Committee notes with regret that the Supreme Court confirmed the illegality of the complainant’s 2003 strike, which had led to the dismissal of a number of USAEU officers, especially considering that the union officers were dismissed for not having ensured immediate compliance with an assumption of jurisdiction order issued under article 263(g) of the Labour Code (now renumbered as article 278(g)) which has been repeatedly found to be contrary to freedom of association and which has been pending amendment for a number of years. The Committee further notes that, given the finality of the Supreme Court decision and the lack of legal basis to compel the University management to accept a settlement package, the Government focused on other schemes, including employment and livelihood assistance for the dismissed workers. The Committee observes in this regard that while the complainant denounces the Government’s refusal to hire any of the terminated workers for any of the open vacancies in Government agencies, the Government, for its part, maintains that it took the necessary measures to provide endorsement letters and explains that the appointing authorities have discretion in selecting the most appropriate candidate for each vacancy. The Committee also notes that the negotiations on the livelihood assistance appear to have been unfruitful, with the Government favouring group assistance and the dismissed workers insisting on an individual livelihood grant in an amount exceeding what the Government was able to provide under the existing regulations. Finally, the Committee observes that, given the lapse of time since the allegations were made in 2006, the RTMB was requested to engage with the dismissed workers to craft and implement an action plan to resolve the issues. The Committee understands that, in view of the fact that all dismissed workers have since been re-employed and one was abroad, reinstatement or livelihood assistance were no longer an adequate response to the workers’ claims, leading the RTMB to explore other options, such as financial assistance. Taking all of the above into consideration and in the absence of any new information from the complainant for the past five years, the Committee trusts that the RTMB was able to propose actions and measures acceptable to both parties and that this issue has since been satisfactorily resolved.
12. 39. The Committee further notes that the Government does not provide any information on the investigations into the allegations of anti-union discrimination at enterprises A and B but trusts that, given the time that has elapsed since these allegations were made in 2006 and in the absence of any recent information from the complainant, the matters have since been resolved. The Committee expects that any future allegations of anti-union discrimination will be speedily investigated and, where appropriate, accompanied by adequate remedies. In these circumstances, the Committee will not pursue the examination of this case.