Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 302, Mars 1996

1. 386. In a communication of 27 March 1995, the Trades Union Congress of the Philippines (TUCP) submitted a complaint of violations of freedom of association against the Government of the Philippines. The International Confederation of Free Trade Unions (ICFTU) associated itself with this complaint in a communication dated 5 April 1995.
2. 387. The Government supplied its observations in a communication dated 29 December 1995.
3. 388. The Philippines has ratified both the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 389. The Trade Union Congress of the Philippines (TUCP) indicates that it is lodging this complaint on behalf of the Associated Labor Unions (ALU) and the Associated Professional, Supervisory, Office and Technical Employees' Union (APSOTEU), both of which are affiliates of the TUCP. The TUCP alleges that the Government has violated Conventions Nos. 87 and 98 in the following manner.
2. 390. The TUCP explains that ALU and APSOTEU are legitimate labour organizations in the Philippines duly registered in the Department of Labor and Employment. ALU and APSOTEU organized the rank-and-file workers and the supervisory employees, respectively, of Cebu Mitsumi resulting in the formation of Cebu Mitsumi Employees' Union (CMEU), a local union of ALU, and Cebu Mitsumi Supervisory Employees' Union (CMSEU), a local union also of APSOTEU. Cebu Mitsumi is an electronics firm in Danao City (Cebu Province) with more or less 8,000 workers.
3. 391. In February 1994, the CMEU filed a petition for certification election at Regional Office No. VII of the Department of Labor and Employment in Cebu City. The petition, a requirement under the Philippine Labor Code, was signed by almost all rank-and-file workers of Cebu Mitsumi. The TUCP alleges that upon learning of the union's petition, the management of the company called the workers into meetings which were also attended by Danao City government officials upon the instructions of City Mayor Jesus Durano. During the meetings, management representatives and city government officials tried to discourage the workers from joining the union.
4. 392. The TUCP further alleges that the Danao City government does not want any trade union especially those than cannot be controlled by local government officials to operate within its jurisdiction. Trade union activities are prohibited in the city. In line with this, the Danao City Council passed a resolution making Danao City union free and strike free when the national government assigned an area in the city as a special trade zone (the TUCP attaches press reports in this respect to its complaint). ALU requested a copy of the said resolution which is considered a public document, but the City Council has not acted on the request until now. (The TUCP also attaches to its complaint a copy of a letter dated 6 March 1995 from the ALU Central Visayas Regional Head to the Danao City Vice-Mayor.) The TUCP adds that workers cannot be bound by any edict from any city council or government official, not even by a previous agreement, not to form unions or to strike. In its view, the right to organize and strike are constitutional rights which no legislation or contract can violate.
5. 393. The TUCP asserts that Danao City Mayor Jesus Durano has a different perception of trade unionism. Mayor Durano issued a statement earlier which appeared in the local papers insisting that unionism in the long term could discourage economic development due to labour strikes that unions have become associated with (copies of this statement reported by the local press are annexed to the complaint). With this development, Danao City government officials collaborated with the management of Cebu Mitsumi in suppressing the trade union rights of the workers of the company. They have been harassing and threatening the worker union members especially the union officers in the exercise of their freedom of association and the right to organize.
6. 394. In addition, when Danao City government officials and the Cebu Mitsumi management found out that their anti-union exercise was failing, they resorted to other acts of harassment. Ferdinand and Annabella Ulalan were the first victims. Ferdinand, who is the President of CMEU, and his wife, Annabella, an officer of CMSEU were arrested by Danao City police authorities without any search warrant or arrest warrant on 31 January 1995 for alleged possession of a prohibited drug known as "shabu". They were detained at Danao City jail and were later charged with violating the country's drug law, a trumped-up charge in order to stop their union activities and to discourage other workers in pursuing their union activities. The TUCP points out that just like any other worker of Cebu Mitsumi, Ferdinand and Annabella Ulalan underwent routine strict inspection by the security guards on the day of their arrest before entering and leaving the company premises. Security guards, Lizathiel L. Cola, Crisanta K. Batican and Reynaldo G. Manulat of the Insular Security and Investigation Agency, who inspected the workers, including the couple, testified that Ferdinand and Annabella did not possess any prohibited drug (the TUCP attaches press reports to this effect). The TUCP asserts that the illegal arrest and detention of Ferdinand and Annabella Ulalan is part of a continuous policy of harassment of trade union leaders and members in Cebu Mitsumi. It has been the subject of protest not only by Philippine trade unions but also the international trade union movement. Media outfits, both local and national, lambasted the trumped-up charge. However, the fact that the arrest was staged in order to discourage union activities at Cebu Mitsumi did not escape a nationwide query.
7. 395. The TUCP indicates that the police officers responsible for the illegal arrest and detention of Ferdinand and Annabella Ulalan were identified as Gabriel Galon and Trinidad Batucan. In the TUCP's view, the two could not have acted on their own. Definitely, they were under instructions from higher government officials of Danao City as part of their tactics in harassing the workers of Cebu Mitsumi. ALU and APSOTEU filed the corresponding charges against the erring police officers that resulted in their suspension while the investigation of the case was going on. (The TUCP refers to press reports describing the above incidents which it attaches to its complaint.)
8. 396. The TUCP further asserts that the harassment, threats and intimidation will continue at the expense of the workers of Cebu Mitsumi until the Danao City government succeeds in busting the union in line with its resolution of having a union-free city. It contends that the situation in Cebu Mitsumi and the passing of the controversial resolution by the Danao City Council for a union-free and strike- free city are just examples of how local government official abuse their power and authority. This alarming development of denying workers their basic human and trade union rights is also happening in other areas of the country, especially those declared by the Government as export processing zones. The TUCP states that it has already brought this to the attention of government officials, particularly the Secretary of Labor and Employment and the Secretary of Trade and Industry but it seems they are unable or unwilling to stop it.
9. 397. The TUCP concludes by pointing out that the open declaration by government officials of Danao City of passing a resolution making the city union free and strike free is a direct affront not only to the provisions of the Philippine Constitution but also to those of Conventions Nos. 87 and 98. Since the Philippines has ratified both Conventions, it is therefore the responsibility of the Government to see to it that they are observed effectively and complied with down to the lowest level of the bureaucracy instead of allowing certain government officials to ignore them.

B. The Government's reply

1. 398. In its communication of 29 December 1995, the Government refers to the petition for certification election by workers at the Mitsumi company. It emphasizes that on several occasions, the Department of Labor and Employment has made efforts to conduct certification election at Mitsumi but that this has not been possible due to the procedural requirements of due process and the following circumstances.
2. 399. First of all, the election was postponed at the instance of both parties due to the incomplete list of qualified voters as the inclusion-exclusion process was still going on. Moreover, Mitsumi filed a motion for postponement of the election which was denied by the Med-Arbiter. Such denial was appealed to the Office of the Secretary of Labor and Employment pursuant to the rules of Med-Arbitration, and as a consequence the election was not pursued. Finally, Mitsumi filed a motion for inclusion of some 5,152 employees as eligible voters of the company. To date, the order declaring the said employees to be eligible voters has not been followed through completely.
3. 400. With regard to the alleged interference by Danao City Mayor Jesus Durano in the Mitsumi case, the Government states that it has coordinated the matter with the Department of the Interior and Local Government which has direct jurisdiction over local governments and municipalities. In this respect, the Government provides, along with its observations, a copy of a letter from Mayor Durano addressed to the Department of the Interior and Local Government, and containing comments relative to the complaint.
4. 401. In this letter, Mayor Durano asserts that it has been the stand of all Danao City officials including himself not to interfere, either directly or indirectly, in union activities or in any matter involving an employer-employee relationship in any establishment operating inside their sphere of jurisdiction. This includes Cebu Mitsumi Inc. Government officials of Danao City are aware of the constitutional rights of every worker which includes, amongst others, the right to self-organization, negotiations and collective bargaining. Thus, it is not true that government officials of Danao City, allegedly upon the Mayor's instructions, called Mitsumi workers into a meeting to discourage them from joining the union. Government officials are not in the position of knowing if a labour union is being organized in a given establishment not only because of the number of establishments operating in the city but also because it is not their practice to pry into the internal affairs of these establishments.
5. 402. Moreover, the allegation that the Danao City Council passed a resolution making Danao City union free and strike free is preposterous; there is no such resolution or ordinance to that effect. This would contravene the provisions of the law as well as the Constitution of the Philippines. Danao City government officials are not ignorant of these laws and are law-abiding.
6. 403. As for the case of the Union President and his wife, Ferdinand and Annabella Ulalan, this is a police matter which is beyond the jurisdiction of the city government. It appears that these persons were caught while in possession of prohibited drugs known as "shabu" and thus were detained at Danao City jail. While it would be improper for government officials to comment on the merits of the case since it is sub judice, it is clear that the two above-mentioned persons were in possession of the prohibited drugs. The arresting officers did not even know that they were officers of the union at the time of their arrest. In any event, there is no law that exempts any union officer from arrest for violation of a criminal act. It is the primary obligation of the police authorities to safeguard the interests of all the inhabitants of Danao City by ensuring compliance with the law.
7. 404. Finally, government officials do not resort to harassment, threats and intimidation as alleged in the complaint. On the contrary, government officials of Danao City as well as the police have been the object of continuous harassment on radio (DYLA station, owned and operated by ALU-TUCP), and in the print media by ALU-TUCP press releases damaging the honour and reputation of these officials based mainly on mere speculation and conjecture. The ALU-TUCP should be asked to stop these illegal practices so as not to exacerbate the situation.

C. The Committee's conclusions

1. 405. The Committee notes that the allegations in this case concern the harassment and intimidation by government officials and the management of Cebu Mitsumi, an electronics firm in Danao City, of members of the newly established Cebu Mitsumi Employees' Union (CMEU), which is a local union of the Associated Labor Unions (ALU) which is in turn an affiliate of the complainant, the Trade Union Congress of the Philippines (TUCP). These various acts of intimidation allegedly occurred after the CMEU filed a petition for certification election in February 1994 which was signed by almost all rank-and-file workers of Cebu Mitsumi. The allegations also refer to the illegal arrest and detention of Ferdinand and Annabella Ulalan, President of CMEU and an officer of CMSEU respectively.
2. 406. The Committee notes the reasons put forward by the Government as to why the certification election at the Cebu Mitsumi company was postponed, namely that the company filed a motion for postponement due to the incomplete list of eligible voters. The Government further indicates that this motion was denied by the Med-Arbiter following which the company appealed to the Office of the Secretary of Labor and Employment which accepted the motion for postponement. As a result, the election did not take place.
3. 407. In this respect, the Committee has stated on previous occasions that it is not necessarily incompatible with Convention No. 98 to provide for the certification of the most representative union in a given unit as the exclusive bargaining agent for that unit. This is the case, however, only if a number of safeguards are provided including certification to be made by an independent body (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 834).
4. 408. In this concrete case, the Committee considers that the decision to postpone the certification election should not have been made by the Office of the Secretary of Labor and Employment which does not, in its view, constitute an independent body in the sense mentioned above. It is reinforced in this view by the complainant's statement (which the Government does not refute) that the petition for certification election was signed by almost all rank-and-file workers of Cebu Mitsumi and that the motion for postponement of the election was denied by the Med-Arbiter. In addition, the issue of the eligibility of workers to vote has not been resolved to date, that is to say more than two years after the petition was filed. In view of the above considerations, the Committee would urge the Government to take the appropriate steps immediately to ensure that certification election is conducted at Cebu Mitsumi in the very near future. It requests it to keep it informed of progress made in this respect.
5. 409. The Committee observes from information provided by the complainant, that the Danao City Council, in fact, had passed a resolution declaring that city as union free after the national Government assigned an area in Danao as a special trade zone.
6. 410. The Committee notes, however, that Danao City government officials categorically deny the allegation that upon learning of the union's petition, management representatives and city government officials called the workers into meetings to discourage them from joining the union. They also deny having had recourse to threats or other acts of harassment and intimidation against workers ever since the CMEU filed its petition for certification election in February 1994. Finally, these officials refute the allegation that the Danao City Council passed a resolution making Danao City union free and strike free when the national government assigned an area in the city as a special trade zone. The Committee requests the Government to confirm the statements made by the Danao City officials.
7. 411. In this respect, the Committee recalls the principle that workers in export processing zones should enjoy the trade union rights provided for by the freedom of association Conventions. The Committee emphasizes that acts of harassment and intimidation carried out against workers by reason of trade union membership or legitimate trade union activities, while not necessarily prejudicing workers in their employment, may discourage them from joining organizations of their own choosing, thereby violating their right to organize. Consequently, the Committee requests the Government in the future to ensure that recourse is not had to such acts of harassment and intimidation of CMEU activists and officials so that the latter may carry out their legitimate trade union activities freely. The Committee requests the Government to keep it informed of concrete measures taken in this regard.
8. 412. The Committee further notes that Danao City government officials maintain that the CMEU Union President, Ferdinand Ulalan, and his wife, Annabella, were arrested and detained because they were in possession of a prohibited drug known as "shabu". The Committee notes, however, from information supplied by the complainant that the two arresting officers, Gabriel Galon and Trinidad Batucan, were suspended by the Interior and Local Government Secretary, pending completion of an investigation by the Philippine National Police. Moreover, the Commission on Human Rights (CHR 7) regional office was also conducting a separate investigation on the legality of the arrest of the couple. The CHR 7 was focusing its investigation on incriminatory machinations, unlawful arrest, arbitrary detention and violations of RA 7438, otherwise known as the rights of the accused during arrest, detention and investigation. The complainant further points out that three security guards of Cebu Mitsumi Inc. - Lizathiel L. Cola, Crisanta K. Batican and Reynaldo G. Manulat, all of the Insular Security and Investigation Agency, issued a joint affidavit stating that none of the company's workers - both incoming and outgoing - was found possessing prohibited drugs on 31 January 1995, i.e. during the arrest of the Ulalan couple.
9. 413. The Committee notes with serious concern all of the above-mentioned incidents which, if confirmed by the two investigations, would constitute a gross violation of trade union rights. It feels bound to remind the Government that the arrest and detention of trade union leaders or members, for reasons connected with their activities in defence of the interests of workers, constitute a serious interference with civil liberties in general and with trade union rights in particular (see Digest, op. cit., paras. 70 and 71). The Committee firmly hopes that the two investigations being undertaken separately by the Philippine National Police and the Commission on Human Rights (CHR 7) regional office will determine responsibility, and punish those guilty. It requests the Government to keep it informed of the outcome of these investigations.