Observation (CEACR) - adoptée 1991, publiée 78ème session CIT (1991)

With reference to its previous observations, the Committee takes note of the Government's report, in particular its statement that the recent amendments to the Labor Code contained in Act No. 6715 were the outcome of tripartite consultation.

In its previous observation the Committee had taken note of the amendments introduced by Act No. 6715, but it had still to raise the following points:

Articles 2 and 5 of the Convention

- the requirement that at least 20 per cent of the workers in a bargaining unit are members of a union for the union to be registered (section 234(c) of the Labor 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 - other than those with valid permits if the same rights are granted to Filipino workers in the country of origin of the alien workers - from engaging in any trade union activity (section 269) under penalty of deportation (section 272(b)).

Article 3

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

- penalties for participation in 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 three years, 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 strike pickets or collective actions deemed to be for propaganda purposes against the Government.

1. As regards the trade union rights of alien workers, the Committee notes the Government's report according to which to grant foreigners the same rights that are accorded to Filipinos would not be acceptable "as it would not speak well of local union leaders" if the law were to allow foreigners to organise workers in the country.

The Committee considers that it should be left to the workers themselves to decide who can set up workers' organisations and consequently it views this prohibition as undermining the right of migrant workers to play an active role in the defence of their interests. It accordingly requests the Government once again to amend this provision so as to guarantee the trade union rights of aliens working legally in the country without distinction on grounds of reciprocal conditions, and thus to ensure full conformity with Article 2 of the Convention.

2. As regards the membership requirement of section 234(c), the Committee notes from the Government's report that 20 per cent is applied only in establishments where there is a multiplicity of unions and that in unorganised establishments, no such requirement is followed. Likewise it notes that the affiliation requirements for registration of federations or central organisations set out in section 237(a) is, according to the report, necessary to establish the substantial interest of an organisation to form a federation and ensures the strength of the federation in its actions.

The Committee, given the importance of the right of workers to be able to establish organisations of their own choosing and of workers' organisations to be able to establish federations and confederations without previous authorisation, can only again request the Government to reconsider reducing these prescriptions in the legislation so as to give full effect to Articles 2 and 5.

3. As regards limitations on the exercise of the right to strike contained, inter alia, in section 263(g) and (i) of the Labor Code, the Committee notes the Government's emphasis on the definition of industries where the Secretary of Labor can prevent or halt strikes, namely those "indispensable to the national interest" and the specific references in section 263(g) to hospitals. While insisting on the State's need for power to intervene "where its very existence is at stake", the Government recognises that this measure should be used sparingly, particularly as the Philippines' Constitution itself advocates the use of voluntary modes of dispute settlement. According to the report, it is in fact unions which have increasingly petitioned the Secretary to assume jurisdiction especially where collective bargaining negotiations are deadlocked. Despite this explanation, the Committee must insist on revision of this provision of the Labor Code which still, in the opinion of the Committee, is not in full conformity with the principle of freedom of association regarding situations where strike action may be limited or totally banned. It recalls that such intervention is permissible in the following 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; and (3) in acute national crises for a reasonable period.

Since the definition in section 236(g) goes beyond the three situations outlined above, the Committee would again request the Government to take measures to limit this restriction on the right to strike.

4. As regards penalties under section 272 of the Labor Code and section 164 of the revised Penal Code for engaging in illegal strikes, the Committee notes from the Government's report that there is no automatic prosecution since efforts are made to settle disputes extra-judicially and government prosecutors are required to secure clearance from the Department of Labor (DOLE) and/or the Office of the President before taking cognisance of complaints for preliminary investigation and eventual filing of cases in the courts. In addition, the DOLE must then conduct a conference with a view to achieving voluntary settlement of the case through the National Conciliation and Mediation Board (NCMB); this latter body always includes in a settlement agreement provisions for both parties not to engage in retaliatory actions against each other, or for the withdrawal of any cases filed against either of them.

The Committee acknowledges the role of the NCMB but points out that section 272 sets out strong penalties, including imprisonment of up to three years, for violations of section 264, a provision which this Committee considers lays excessive restrictions on legitimate strike action. Moreover, the revised Penal Code still lays down sanctions of life imprisonment. So, where the NCMB fails to achieve a settlement and workers go on strike, they run the risk of severe sanctions for exercising a right which the supervisory bodies have consistently protected. It thus recalls that penal sanctions should not be imposed for strikes except where the grounds of their illegality are in accordance with the principles of freedom of association, such as those outlined above. 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. The Committee accordingly asks the Government to review section 272 of the Code and section 164 of the Penal Code so as to make the sanctions for illegal strikes commensurate with the limits described above.

5. Lastly, the Committee notes the Government's acknowledgement that the present law needs some improvement; it points out that the ILO is at its disposal for any assistance that the Government may need in revising the legislation along the lines outlined above and covering all the points raised by the Committee.