Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 346, Juin 2007

1271. The complaint is contained in communications from the Federation of Free Workers (FFW) – Visayas Council dated May, 27 July, 7 October and 21 November 2006.

1. 1272. The Government replied in communications dated 1 September, 6 November and 26 December 2006.
2. 1273. 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. The complainants’ allegations

1. 1274. In its communication of May 2006, the complainant indicates that the University of San Agustin Employees’ Union – FFW (USAEU) is the recognized exclusive bargaining agent composed of academic, non-academic and maintenance personnel in the University of San Agustin (the university) in Iloilo City, Philippines. The university is a non-stock, non-profit educational institution engaged in educating the minds of the youth of the country not only on matters pertaining to science but also on Catholic Christian formation.
2. 1275. The complainant alleges that on 2 April 2003, the USAEU submitted to the management of the university its collective bargaining agreement (CBA) proposals pertaining to benefits of workers. The university submitted to the USAEU its counterproposals dated 10 April 2003 (documents annexed to the complaint). On 20 May 2003, both parties, the university and the union, commenced their series of meetings to thrash out the disagreements on the submitted proposals and counterproposals. The university increased its tuition fee rate by 10 per cent during the school year 2003–04. According to Republic Act (R.A.) 6728 of the Republic of the Philippines, at least 70 per cent of the tuition fee increase or tuition incremental proceeds (TIPs) should go to the increases in salaries and other benefits of the employees of the university (80 per cent in the case of the university as per existing CBA). Almost all of the proposals of the USAEU were rejected by the university, including the proposal to apply the increase in non-taxable fringe benefits instead of increase in monthly salary. The USAEU opted for increase in non-taxable fringe benefits so the workers can have higher take-home pay. This proposal was also advantageous even to the university for it would no longer increase the amount of the employer’s share in every worker’s contribution to the Social Security System. It could also earn interests in the bank since the benefit was not given monthly. Despite this proposal being advantageous to both the USAEU and the university, the management rejected it.
3. 1276. According to the complainant, to make matters worse, the university’s proposed increase in salary was 3,000 pesos per month for teachers with a master’s degree and only 300 pesos per month for teachers without a master’s degree and the rest of the employees in the university. Almost 70 per cent of teachers in the university were without a master’s degree, without counting the non-academic and maintenance personnel. There was already an existing substantial difference between the monthly salary of teachers with a master’s degree and those without a master’s degree. In fact, the existing CBA provided for an across-the-board increase to all employees in the university. Yet, the university took a hard-line stance, as always. The university’s counterproposal obviously favoured only those in the managerial and supervisory positions like the Departmental Heads and the Deans of different colleges. The gap between the salaries of the Heads/Deans and that of the ordinary worker would only widen and eventually result in wage distortions, resentment and unproductiveness if the counterproposal of the university were put in place. These caused the deadlock in the collective bargaining.
4. 1277. Article 263(c) of the Labor Code of the Philippines provides that “In cases of bargaining deadlocks, the duly certified or recognized bargaining agent may file a Notice of Strike or the employer may file a notice of lockout with the Department at least 30 days before the intended date thereof.” In its effort to settle the matter amicably, instead of filing the Notice of Strike, the USAEU filed a notice for preventive mediation before the office of the National Conciliation and Mediation Board (NCMB) in its regional office in Western Visayas. The NCMB is an agency under the Department of Labor and Employment (DOLE) tasked to mediate and conciliate disputes between labour and management. The conciliation proceedings were conducted by the NCMB Regional Director himself, who exerted every effort to settle the deadlock. During the conciliation proceedings, the university brought in a new lawyer and spokesperson from Manila. The attorney immediately introduced a new formula to be used in computing the share of the employees in the tuition fee increase or TIPs. This set aside the issue on whether the increase should be in the form of non-taxable fringe benefits or salary increase. The USAEU wanted to retain the traditional formula used by the university since the time of the enactment of R.A. 6728 in June 1988. If the traditional formula was used, the share of the employees in the TIPs would be around 12 million pesos, but if the new formula of the attorney was used, the employees’ share would be less than 4 million pesos. The USAEU proposed to lower their share to 10 million pesos. However, the university, again adopting a hard-line position, insisted and stuck to their new formula. (It is worth noting here that the Supreme Court, in the St Joseph College case, G.R. No. 155609, where the same issue on the formula to be used was involved, had decided with finality the formula to be used in favour of the union.)
5. 1278. Confronted with the ever hard-line position of the university, the USAEU filed the Notice of Strike with the NCMB where the 30-day cooling-off period, as required by law, was to be observed. Conciliation efforts which continued to be exerted during the cooling-off period failed. Thus, after complying with all the mandated legal requirements, the USAEU decided to go on strike on 19 September 2003. The university, for its part, petitioned the Secretary of Labor and Employment (SOLE) to assume jurisdiction over the dispute. On 19 September 2003, at 7.30 a.m., members of the USAEU went outside the walls of the university to go on strike. They set up streamers, placards, tents, a public address system and other strike paraphernalia. The USAEU President, Theodore Neil Lasola, was heard over the radio announcing, for the benefit of all members as well as the interested public, the start of the strike. Afterwards, he was heard being interviewed on different radio stations. The USAEU President had to announce the strike through different radio stations since there were three strike areas: one at the main gate of the university, one at the side gate located in the adjacent street beside the university and another at the extension campus which is around a 15-minute drive from the main campus.
6. 1279. At around 8.45 a.m., two sheriffs from Manila together with the university Director arrived at the main gate to serve the Assumption of Jurisdiction Order (AJO) from the Secretary of Labor. The sheriffs were told that the USAEU President was the one authorized to receive the AJO. A board resolution was executed to that effect to safeguard the members from unauthorized instructions that might jeopardize the very peaceful and legal strike. The sheriffs, however, without exerting any effort to locate the USAEU President or wait for him to effect personal service of the AJO, just immediately proceeded to post a copy of the AJO on the wall near the main gate of the university and then left. Meanwhile, after the interviews on different radio stations, the USAEU President proceeded to the extension campus to monitor the strike. At around 11 a.m., the USAEU President also observed the very peaceful strike being undertaken near the main gate as well as the strike near the side gate of the university. He did not see any of the sheriffs even if he went back near the main gate at around 3 p.m. Again, at around 5.25 p.m., he went back to the main gate. This time, the sheriffs were there waiting to serve the AJO upon him.
7. 1280. A lot of witnesses were able to hear a man, who turned out to be the new legal counsel of the university, son of the university’s spokesperson, dictating upon the sheriffs to write on their copy of the AJO that the said AJO should be considered received at 8.45 a.m. instead of 5.25 p.m. It was only then that the sheriffs told the union members that the AJO was already considered served at 8.45 a.m. No one from the USAEU knew the new legal counsel of the university from Manila. When he was asked by the union’s legal counsel if he were from the NCMB, he answered “yes” without hesitation.
8. 1281. Within ten minutes of receiving the AJO, the USAEU President announced through the public address system that the strike was lifted and gave instructions to the members on what to do in compliance with the AJO of the SOLE. The USAEU members proceeded to take care of the different strike paraphernalia as well as the public address system and brought these to a safe place. Those who still had classes in the evening proceeded to meet their classes. In all cases of strike in the Philippines, the SOLE always gives 24 hours to the workers as the reasonable time within which to return to work. The USAEU in this case was able to return to work the same day the strike began. And so the strike which started on 19 September 2003 also ended that same day. The next day, which was a Saturday, the university published in local newspapers its official statement giving the workers until Monday, 22 September 2003, to return to work or else they would be declared by the university to have lost their employment status. This was amply complied with since striking workers were able to return to work well before the deadline set by the university in its published statement.
9. 1282. The USAEU and the university, in compliance with the AJO, submitted their position papers to the SOLE for the latter to make his ruling. Yet, despite compliance with the AJO of the SOLE and the deadline set by the university, the university management was hell bent on going after the workers who participated in the strike. On 24 September 2003, the university filed with the National Labor Relations Commission (NLRC) in its regional office in Iloilo City, a petition to declare the strike of 19 September 2003 as illegal and to declare all the USAEU members and officers who participated in the strike to have lost their employment status. This petition was later consolidated on a motion by the university, with the issues to be decided by the SOLE. The action of the university to go after the workers who participated in the strike sowed fear among union members who suddenly became afraid to go out into the open and actively participate in union affairs.
10. 1283. The complainant adds that the next month, October 2003, four theology teachers who participated in the strike and were identified as close associates of the union President were dismissed from their jobs on the flimsy excuse that they had no master’s degree. The four teachers were John Mirasol (a union officer), Benonie Dela Cruz, Alexander Sardon and Victoria Callanga. The four were dismissed from their jobs obviously because of their union activities. The four dismissed teachers filed with the NLRC a motion to declare the dismissal illegal but unfortunately, in a very apparent pro-management ruling, the NLRC decided in favour of the university. After two months, during the month of December 2003, when the USAEU was supposed to have its general assembly meeting (as the union had been allowed for several years, two meetings every semester during class days, per their CBA), the university no longer allowed the union to hold its meetings during class days. In fact, many union members were no longer attending the general assembly meetings for fear of being identified and a backlash from the university management.
11. 1284. Another USAEU member, Melvin Garrido, from maintenance personnel, in charge of the water pump in the university, was accused of stealing two plastic bags of chlorine and was dismissed. Mr Garrido vehemently denied the accusation. Melvin Garrido was one of those who joined the strike. The university’s main witness testified during the investigations conducted by the university that she was asked to sign by the head of the maintenance personnel, without understanding the seriousness of the affidavit against Mr Garrido. Again another case was filed with the NLRC to declare the dismissal of Mr Garrido as illegal and unfortunately, again, the NLRC ruled in favour of the university.
12. 1285. The complainant states that the abovementioned acts of the university as well as the decisions of the NLRC clearly violated Article 1 of Convention No. 98. According to the complainant, even the practice by the Secretary of the DOLE of issuing AJOs every time there was an impending strike has become a hindrance to the workers’ exercise of their basic constitutional right to concerted actions for the promotion of their benefits and mutual protection.
13. 1286. The complainant specifies that article 263(g) of the Labor Code of the Philippines states:
14. When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same for compulsory arbitration. Such assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order.
15. The Secretary of the DOLE issued the AJO on 18 September 2003, a day before the strike staged by the workers although the same was received by the USAEU on the day of the strike. Why the university in Iloilo City was considered by the Secretary of the DOLE as an industry indispensable to national interest is beyond the understanding of the USAEU members. In Iloilo City alone there are six universities not counting the nine private colleges.
16. 1287. The complainant adds that in fact, every industry where there has been an impending strike, has always been considered by the DOLE as indispensable to national interest. The DOLE therefore will immediately issue an AJO even before the workers can stage a strike. Thus, while the complainant expresses appreciation for the favourable decision of the Secretary of the DOLE in the present case, it also finds that the practice of issuing AJOs every time there is an impending strike has become a burden to all labour groups. The practice effectively puts the union at the mercy of the employer who negotiates in bad faith and who can get away with it through the simple expediency of asking for an AJO from the office of the Secretary of the DOLE if the union files a Notice of Strike. The union then is put at a disadvantage and would be left with no choice but to submit to the Order of the Secretary of the DOLE and go through the atrociously long process of legal battle. This is compounded by the many legal requirements required by the Labor Code for a strike to become legal. And worse, when the strike is declared illegal by the proper authority, all union officers may be declared to have lost their employment status by their employers (article 264, paragraph 3, Labor Code). The issuance of AJOs even before any strike takes place, in all kinds of industry clearly violates Articles 3(2) and 8(2) of Convention No. 87.
17. 1288. The complainant further alleges that the Secretary of the DOLE handed down her decision dated 6 April 2004 (decision annexed to the complaint). Again, on the basis of article 263(g) of the Labor Code of the Philippines, the Secretary opted to decide on this case. On the issue of the legality of the strike, the Secretary ruled that the USAEU was able to comply with her Order as well as the mandated legal requirements, hence, the strike was legal. On the issue of benefits, the Secretary ruled that the formula to be used in computing the 70 per cent share of the employees in the TIPs (80 per cent in the case of the university) is the formula traditionally used by the university. This is the position of the union. It must be noted that the increases in salaries and other benefits are taken from the 70 per cent of the TIPs. The dispositive portion of the Secretary’s decision:
18. WHEREFORE, the parties are hereby directed to conclude a memorandum of agreement embodying the foregoing dispositions to be appended to the current CBA. The petition to declare the strike illegal is hereby DISMISSSED for want of legal and factual basis. Consequently, there is no basis whatsoever to declare loss of employment status on the part of any of the striking union members.
19. Usually, the union and the management will then proceed to sign a new CBA based on the decision of the Secretary. But, the university did not implement the decision even if article 263(i) of the Labor Code provides that the decision of the Secretary of the DOLE is final and executory. After their motion for reconsideration was denied by the Secretary, the university elevated the case to the Court of Appeals on the ground that the Secretary of the DOLE committed grave abuse of discretion.
20. 1289. On 15 March 2005, the USAEU received its copy of the decision of the Court of Appeals dated 4 March 2005 (decision annexed to the complaint). On the issue of the legality of the strike, the Court of Appeals reversed the decision of the DOLE and ruled that the strike was illegal. It stated that the USAEU defied the order of the Secretary by continuing with the strike until the afternoon. It stated further that the USAEU acted in bad faith for coming up with a board resolution authorizing only the President of the union to receive the AJO. On the issue of the benefits, the Court of Appeals affirmed the decision of the Secretary of the DOLE. On 28 March 2005, the union filed a partial motion for reconsideration on the ruling of the court on the illegality of the strike (annexed to the complaint). For its part, the university also filed a partial motion for reconsideration on the issue of benefits (annexed to the complaint).
21. 1290. The complainant alleges that in its obsession and haste to destroy the USAEU for good and in blatant violation of existing laws, the university President dismissed all union officers effective upon receipt of their dismissal letters throwing 15 families into financial turmoil and emotional agony (dismissal letters annexed to the complaint). The university President did not give the union officers as much as one day to prepare. He knew that the decision was not yet final and executory but he implemented it. He knew of the pending motion for reconsideration filed on time by the union. He himself had filed a motion for reconsideration. In unparalleled bad faith, the university implemented one portion of the decision, that is, the “illegal strike” by dismissing all the USAEU officers “effective upon receipt” of their dismissal letter but refused to implement the issue on benefits affirmed by the Court of Appeals. The university argued that they filed a motion for reconsideration and planned to elevate the case to the Supreme Court should their motion be denied. However, the union had also filed a motion for reconsideration and planned to elevate the same to the Supreme Court. Thus, there was no justification for the university to implement only one portion of the decision by terminating all union officers and not implement the other portion of the decision of the Court of Appeals on benefits. The complainant emphasizes that Rule 52, section 4, of the Rules of Court of the Philippines provides that if there is a pending motion for reconsideration filed on time, the decision cannot be implemented since it is not yet final and executory. It is contemptuous to pre-empt possible decision of the court. The plan of the university management was crystal clear: dismiss all USAEU officers who have been a pain in the neck and crush the backbone of unionism in the university. This was the price that these union officers had to pay for knowing and exercising their rights and for fighting for the rights of others. Being a union officer had become a very dangerous and thankless job. Worse, union members became all the more afraid.
22. 1291. The USAEU wrote a letter to the university President for him to reconsider its decision on the premature dismissal of the union officers. The President replied denying the request saying that he was only implementing the decision of the Court of Appeals and that his action would withstand judicial scrutiny. The USAEU was constrained again to file a Notice of Strike on the ground of union busting. And, after complying with all the mandated legal requirements, the union went on strike on 25 April 2005. This time, however, no AJO came from the Secretary of the DOLE. This time, not many members joined the strike. Most wanted to be safe in their jobs and closed their eyes to the ultimate punishment being meted out on their union officers who had defended them. The union members were overcome by great fear of reprisal from management.
23. 1292. On 23 August 2005, the Court of Appeals promulgated a decision on the partial motions for reconsideration by both the union and the university. On the issue of the strike, it was still held illegal by the court. On the issue of benefits, the court, in a bizarre twist and in blatant disregard of existing jurisprudence that all issues on the labour dispute shall be decided by the Secretary of the DOLE, ruled that the same shall be referred back to voluntary arbitration for decision (decision annexed to the complaint). The decision did not address the very important issue on the contemptuous illegal dismissal of all the union officers even if this issue was raised by the USAEU in its motion to cite the university President and the university in contempt (annexed to the complaint).
24. 1293. The workers elevated the case to the Supreme Court by way of a Petition for Review (annexed to the complaint). After more than five months of joining the strike without receiving their salaries, the few USAEU members who joined the strike returned to work upon the advice of their dismissed officers so they could start earning their salaries again. Meanwhile, the dismissed USAEU officers and one member, Mr Jerome Eslabra, who decided not to return to work if the union officers were not reinstated, continued with their strike while waiting for the decision of the Supreme Court. Several dismissed officers experienced the unseen hand of the university when applying for jobs in other schools. They were considered at first because of their good credentials, but were eventually rejected for reasons not clear to them. They asked the help of local leaders both in the Government and in the Church. Local leaders in the Province of Iloilo tried to intervene (the governor, mayor and the Provincial Board of the Province of Iloilo, as well as the Archbishop of the Archdiocese of Jaro). However, the Augustinian priests were adamant in their position not to reinstate the union officers since they were allegedly given the “option” by the Court of Appeals “to serve notice of dismissal”. Instead, the Augustinian priests insulted the union officers as “greedy with money” and told them that because of the strike in 2003, they would “find ways to dismiss the union officers”, in the presence of the mayor of the City of Iloilo.
25. 1294. On 20 April 2006, the union received a copy of the decision appearing to have come from the Supreme Court on the USAEU’s Petition for Review dated 28 March 2006 (decision annexed to the complaint). The dispositive portion of the Supreme Court decision read:
26. WHEREFORE, the petition is DENIED. The partially amended Decision dated 23 August 2005 of the Court of Appeals in CA – G.R. SP No. 85317 is AFFIRMED.
27. Aside from affirming the decision of the Court of Appeals, the court did not rule on the very crucial issue of illegal dismissal of all union officers. These union officers had worked in the university for 12, 18, 20 and 25 years of unblemished and excellent records. The dismissed union officers pinned their hopes on the highest court of the land to attain justice for their long agony caused by the illegal and unjust dismissal. Clearly, the university was guilty of illegal dismissal resulting in union busting when it dismissed all union officers even if there was a pending Motion for Reconsideration filed on time by both parties. This act of premature dismissal violated the rule on finality of judgement (Rule 52, section 4, of the Rules of Court of the Philippines) and had effectively sowed fear among union members, and also effectively suppressed unionism in the university.
28. 1295. The complainant considered that it was obvious that the real intention of the university in dismissing the officers, while the decision was not yet final and executory was to eradicate all possible resistance, terrorizing in the process those who intended to get the employees’ just share in the TIPs. Nobody among the remaining union members in the university had the courage to pursue in court their share in the TIPs for fear of a backlash from the university management. How could the Supreme Court not see this? Clearly, the university had acted in bad faith and wanted to suppress unionism and terrorize union members into submission to its every whim and caprice. The complainant commented that after more than a year, and still counting, of camping outside the walls of the university enduring all forms of difficulties, financial turmoil and emotional distress suffered by the workers and their families, the one government institution the workers hoped could give them justice had failed them. With regard to the decision of the Supreme Court on the issue of benefits in particular, the complainant states that the Supreme Court is not unaware that it has already decided the same issue on the correct formula to be used in computing the TIPs in its decision on the St Joseph College case. It is even more frustrating that on the issue of benefit, the Supreme Court ruled that the voluntary arbitrator will decide again on what has already been decided by the SOLE, and what has already been decided by the Supreme Court itself.
29. 1296. Thus, according to the complainant, the decision of the Court of Appeals and, eventually, that of the Supreme Court of the Philippines with the aforedescribed circumstances are clear violations of Articles 3 and 8 of Convention No. 87 and Article 1 of Convention No. 98. The decisions of the courts which ruled that the very peaceful strike of the USAEU of 13 September 2003 was illegal even if the union complied with all the stringent mandated legal requirements, and its referring the issue on benefits back to voluntary arbitration even if these were already decided by the Secretary of the DOLE and the Supreme Court itself, and the failure of these courts to address the crucial issue on the illegal dismissal of all union officers are gross violations of Conventions Nos 87 and 98.
30. 1297. The complainant points at some irregularities in the Supreme Court decision. In particular, the case was originally assigned to the Third Division of the Supreme Court. Sometime in January 2006, the union received its copy of the Second Endorsement of its case dated 12 January 2006 addressed to the Clerk of the Court, this time, of the Second Division. For reasons known only to the Supreme Court, the said case was transferred from the Third Division to the Second Division of the said court. On 1 April 2006, a Saturday, many union members of the university received similar text messages which read: “Frm Atty Padilla – decision of d Supreme Court is in d internet. San ag wins in all issues.” The following day, 2 April 2006, Panay News, a local news tabloid, published the university of San Agustin press statement on the Supreme Court decision on this case. The next day, 3 April 2006, the university attorney flew into Iloilo City from Manila and called for a press conference regarding the decision of the Supreme Court on the instant case posted in its official web site. He admitted to the media that he, too, had not yet received his official copy from the Supreme Court. Again, local tabloids printed a news item on this press conference and one whole page dedicated to the official statement of the university regarding the decision. The university published its official statement regarding the decision even before the parties received their official copies of the decision. The university attorney, while admitting that he had not yet received an official copy of the decision, already had a copy in his possession which he alleged as having been taken from the internet, and which was reproduced and posted in conspicuous places in the university. Members of the petitioner union saw posted copies of the said decision in the university bulletin boards numbering 21 pages. The union was able to download the decision and printed a copy from the Supreme Court web site. Thirteen pages contained the decision. On 20 April 2006, the USAEU received via registered mail the decision (G.R. No. 169632) which appeared to have come from the Supreme Court. It contained 21 pages just like the one reproduced and posted by the university around the university campus.
31. 1298. Moreover, the complainant alleges that the copy of the decision received by the USAEU which appears to have come from the Supreme Court, has the following features:
32. (1) A smaller brown envelope is pasted on the face of a big brown envelope. The face of the smaller brown envelope bears:
33. (a) “en banc” label on the upper left side of the envelope. Yet, inside the envelope, the decision was promulgated by the Second Division only and signed by the five justices of the Division;
34. (b) the case number “G.R. No. 169632” is handwritten; and
35. (c) the addressee, President of the USAEU and his address are handwritten photocopies lifted from the Notice of Judgement and taped on the addressee position of the envelope except that the handwritten word “(Reg)” found after the word “Pres” is cut.
36. The complainant wonders why the Supreme Court accorded the union such very unusual informality. It also emphasizes that:
37. (2) The Notice of Judgement bears the following features:
38. (a) the Notice of Judgement is printed on a white bond paper. The Notice of Judgement is colour-coded as is the custom of court;
39. (b) the Notice of Judgement is a photocopy, not an original;
40. (c) the case title contains an inserted handwritten addition which reads: vs. “Court of Appeals”;
41. (d) the date of the promulgation of the decision is also handwritten;
42. (e) the USAEU President and its address is handwritten in the extreme left portion as an additional person to be furnished a copy. This is exactly the same handwritten addressee taped on the face of the brown envelope except that the handwritten “(Reg.)” is found after the word “Pres”;
43. (f) there is an absence of the copy of the Notice sent to the respondent university; and
44. (g) the case number “G.R. (CA) No. 85317” is handwritten.
45. The complainant again inquires why this informality and irregularity is happening right in the records of the highest court of the land and whether this is the kind of respect afforded to citizens who have suffered from illegal dismissal and whose families are so much affected.
46. 1299. The complainant adds that on 5 May 2006, the USAEU filed with the Supreme Court its Motion for Reconsideration for the Supreme Court to reverse its decision dated 28 March 2006 (annexed to the complaint). The complainant states that it is so alarmed by this recent decision which undermined the right of the workers to collectively and effectively bargain for their rights and mutual protection as well as their right to strike as its last recourse. It is even more alarmed at the effects of this decision on labour groups in the Province of Iloilo. What happened to their fellow workers in the university run by priests has been monitored by different labour groups as well as by the other companies all throughout the Province of Iloilo and the neighbouring provinces. The other employers have taken their cue from the university – they can just dismiss workers and win in the Supreme Court. In the Philippines, decisions of the Supreme Court which are final and executory become part of the law of the land and have the effects thereof.
47. 1300. Thus, according to the complainant, workers from Eon Philippines Industries Corporation have been dismissed allegedly on the ground of “business losses” and “excess manpower” without presenting proof that the company is indeed losing (letter of dismissal annexed to the complaint). This is just a newly organized union by the FFW in the Visayas. Having talked with the workers, only those who signed a complaint against the management with the DOLE were being dismissed. Seven of the dismissed union members were officers of the union. They were told that the next batch to be dismissed would follow. This is a clear case of dismissal by reason of union activities. The company’s claim is refuted by the fact that they continue to hire more personnel to the company.
48. 1301. Moreover, according to the complainant, in Roxas City, capital city of the neighbouring Province of Capiz, a union officer of the Capiz Emmanuel Hospital Employees’ Union (CEHEU) was suspended for 30 days effective upon receipt of the suspension letter after sudden fabricated charges (letter attached to the complaint). It was certain that dismissal would follow because the union officers were bluntly told by the hospital administrator that they would suffer the same fate as the union officers of the university. There was brutal and actual harassment committed against labour organizations in the region. The highly questionable posting of the Supreme Court decision through its official web site, even if the parties had not yet received their official copies as well as the press releases made by the university on the decision taken from the web site, also made matters worse. The unfortunate decision of the Supreme Court in the case of the USAEU had a chilling effect. With this decision, the employers in the region became aggressively engaged in union-busting activities and dismissed employees without fear of sanctions.
49. 1302. In a communication dated 27 July 2006, the complainant alleges that another batch of 15 union members was dismissed from their jobs by the management of Eon Philippines Industries Corporation in addition to the first 12 dismissed members and officers of the newly organized union mentioned in the initial complaint. The union officer at Capiz Emmanuel Hospital in Roxas City, Imelda Juridical, who was suspended first for two months, had now been dismissed from her job. More dismissals of union officers were certain, for as mentioned in the initial complaint, the officers of the union were bluntly told by the hospital administrator that they would suffer the same fate as the union officers of the USAEU.
50. 1303. The complainant (FFW) adds that on 5 June 2006, it filed a “Motion for Intervention” with the Supreme Court arguing among other things, that the decision set a dangerous precedent, as there was no longer any distinction between compliance and defiance vis-à-vis the law when staging a strike, something that would definitely affect all the unions affiliated with the Federation as well as all labour groups in the entire country. In the meantime however, the Supreme Court came out with its decision acting on the USAEU “Motion for Reconsideration” dated 5 May 2006. In a resolution dated 14 June 2006 (attached to the complaint) which was received by the union only on 24 July 2006, the Supreme Court denied with finality the Motion for Reconsideration on the ground that the issues raised had already been “considered and passed upon by the Court” in its decision dated 28 March 2006 (decision attached to the complaint).
51. 1304. This shocked the union as it had raised several serious issues in the Motion for Reconsideration (consisting of 64 pages). Among these issues were the following: serious errors in the court’s finding of facts, and the constitutionality of its interpretation of the Labor Code’s provision on “immediately return to work” as “instantaneous” or “automatic” (since this is impossible to comply with); the violation of the workers’ constitutional right on “equal protection of Law” (since the giving of a reasonable period of time has always been applied in all cases of strike, except the one staged by the USAEU); the sheriffs’ report which was not a sworn statement as against the USAEU “Comment on the Sheriffs’ Report” which was a duly sworn statement (it must be remembered that the courts, the Court of Appeals and the Supreme Court, relied solely on the sheriffs’ report in coming up with a decision); that the USAEU complied with the AJO as evidenced by the ruling of the Secretary of the DOLE, the one who issued the Order; that the USAEU complied with all the stringent mandated legal requirements for a strike to be legal; that the sheriffs’ claim of a “standard operating procedure” had no legal basis; that the union president was being interviewed on different radio stations in Iloilo City on the morning of the strike as evidenced by the sheriffs’ report and not avoiding the service of the AJO; the erroneous ruling that CBA deadlock was a matter arising from “interpretation or implementation of the CBA” such being contrary to article 263(c) of the Labor Code; the erroneous ruling that the Secretary of the DOLE committed grave abuse of discretion when it proceeded to decide on the dispute, when all the Secretary did was to abide by the provision of article 263(g) of the Labor Code; and the refusal of the court to rule on the premature and illegal dismissal of all union officers pending Motions for Reconsideration filed on time by both parties in violation of Rule 52, section 4, of the Rules of Court of the Philippines and in violation of the required 30-day notice. These issues were not addressed by the Supreme Court in its decision dated 28 March 2006. Most importantly, the court did not address the question of the authenticity of the decision and the irregularities which attended its promulgation. Its only answer to all of the above was that this question had already been “passed upon by the Court”.
52. 1305. The complainant comments that the kind of justice that an ordinary worker gets from the highest Court of the Land, after doing everything to abide by the existing laws, is frustrating and dangerous and can lead to even more chaos and serious threat to the already volatile labour–management relationship. The decision is clearly contrary to the national law and settled jurisprudence and violates ILO Conventions Nos 87 and 98. According to the complainants, the idea could not be avoided that big money and the well-placed connections of the university’s lawyer influenced the decision. The union indicated further that it would be filing with the Supreme Court a Motion for a referral to an en banc decision or probably a second Motion for Reconsideration. However, it would be the same Second Division of the Supreme Court that would decide on whether to grant the motion or not.
53. 1306. In its communication dated 7 October 2006, the complainant (FFW) further alleged that the Intervention it filed before the Supreme Court was simply noted “without action” by the Second Division of the Supreme Court. All the subsequent pleadings were simply noted “without action”. The only Motion which had not been acted upon yet by the Supreme Court was the Motion of the USAEU for referral to an en banc decision. The complainant repeated its belief that the Supreme Court had committed serious errors in deciding this case, as it came out with a decision which violates the constitutional rights of workers to peaceful concerted action as well as the equal protection of law, and deviates from the already established rulings of the Supreme Court itself regarding the right to strike. The complainant considered that the decision represented a great danger to the entire trade union movement in the country as it did not matter anymore whether a trade union abided by the legal requirements or not and the employers, especially in the Visayas Region, were on a union busting rampage. Taking their cue from what the management of the university did to the union officers and its win in the Supreme Court, in September 2006, a third batch of 12 union members were mercilessly dismissed from Eon Philippines Industries Corporation again on the ground of company losses even if there were many casual and contractual workers in that company. Moreover, another union member was suspended from the Capiz Emmanuel Hospital.
54. 1307. In a communication dated 21 November 2006, the complainant alleged that on 13 November 2006, the USAEU legal counsel received a copy of the resolution dated 4 October 2006 from the Second Division of the Supreme Court stating that the union’s Motion for an en banc resolution was denied with finality and that “no further pleadings shall be entertained” by the court. Furthermore, the resolutions of the Supreme Court regarding the USAEU case (G.R. No. 169632) dated 14 June 2006, 10 August 2006 and 4 October 2006, were not found in the official web site of the Supreme Court. All the decisions and resolutions up to the second week of November had already been posted except that of the USAEU’s case.
55. B. The Government’s reply
56. 1308. In a communication dated 1 September 2006, the Government indicated that as a signatory to ILO Conventions Nos 87 and 98, it has religiously observed the mandate of the said Conventions. As part of its commitment to abide by the provisions of the Conventions, it strictly enforces the provisions of the Labor Code on self-organization and collective bargaining. It sees to it that, while it protects the rights of workers and labour organizations, its strong arms are not to be used as a means for the destruction of the employers. As such, the Government, when called upon to intervene in labour disputes between labour organizations and employers, renders decisions only on the basis of evidence presented before it and with the end view of maintaining industrial peace. This protective policy of the Government may be viewed from the decision of the SOLE in the USAEU case.
57. 1309. The Government has never adopted the policy of violating the trade union rights of workers who participate in concerted activities to seek redress of grievances against their employers. On the contrary, it encourages free trade unionism and free collective bargaining. The rights of workers to engage in concerted activities for purposes of collective bargaining or for mutual benefit and protection and the rights of legitimate labour organizations to strike and picket and of employers to lockout, consistent with the national interest, have always been recognized and respected by the Government. In fact, the complainant itself alleged that on 25 April 2005, it went on strike, and the Department did not intervene. Official records show that 559 other strikes were staged from 1996 to 2005 without the Department intervening. Over the past ten years, there has been at least one new strike staged every week – an average of 56 strikes a year – without State intervention. This indicates the free exercise of the workers’ freedom of association in the Philippines.
58. 1310. Regarding the cases in the appellate courts, the Government indicated that although the last two decisions of the appellate courts were not to the satisfaction of the union, voluntary arbitration ordered by the Supreme Court, could not be considered a violation of the union’s right to organize or to bargain collectively.
59. 1311. The Government finally recalled that in several communications concerning other cases, the Committee has been constantly informed that the Secretary of the DOLE has made specific instructions to review and revise the entire Labor Code. In response to the said instructions, the DOLE has initiated consultations on the proposed amendments. On the proposal to amend article 263(g) of the Labor Code, the DOLE has extended resource persons in the discussions and deliberations on House Bills Nos 1505 and 2728, known as “An act establishing the new Labor Code and for other purposes”. House Bill No. 1505 proposes to amend article 263(g) of the Labor Code, as amended, by limiting the Secretary of the DOLE’s assumption of power to enterprises engaged in providing essential services such as hospitals, electrical and water supply services and communication and transportation services. Senate Bill No. 1027 also proposes to amend article 263(g) of the Labor Code. The said legislative bills are pending deliberation and consideration by the Committee on Labor of the Philippine Senate and House of Representatives, respectively.
60. 1312. In a communication dated 6 November 2006, the Government sums up the facts of the case as follows, in accordance with the findings of the Supreme Court in its decision of 28 March 2006: on 27 July 2000, the USAEU concluded a collective agreement with the university, a non-profit educational institution, for a term of five years. The agreement provided for economic benefits to the workers for the first three years, subject to re-negotiation of these benefits for the remaining two years. It also provided for a “no strike, no lockout” clause and a grievance procedure that culminates in voluntary arbitration in case of disputes between parties during the period of the agreement.
61. 1313. During the re-negotiation for school years 2003–05, the parties could not agree on the manner of computing the proceeds from tuition fee increases, which appeared to be material in fixing the economic benefits for the two school years. Mediation by the NCMB failed in bringing the parties to an agreement. The USAEU then filed a Notice of Strike which the university opposed with a Motion contending that the action of the union violated the “no strike, no lockout” clause and the recourse to the grievance procedures and voluntary arbitration provided in the collective agreement. The parties then filed a joint request for the Secretary of the DOLE to assume jurisdiction over the dispute. Acting on the joint request, the Secretary issued an Order on 18 September 2003 notifying the parties that her office was assuming jurisdiction over the dispute and that parties were accordingly being enjoined from taking strike or lockout action. On 19 September 2003 the union went on strike. At 6.45 a.m. of that day, government sheriffs served a copy of the Order on the USAEU through its vice-president who was in the strike area but who claimed that the Order could be received by the USAEU only through its president who was not there. The sheriffs informed the union vice-president that the Order would be considered served upon its posting at the university’s main entrance and the union’s office, which the sheriffs did at 8.45 a.m. That did not stop the strike. At 5.25 p.m. the USAEU president arrived and received the Order from the sheriffs. On 24 September 2003, the university filed a Petition to declare the strike illegal. The Petition was consolidated with the case assumed by the Secretary of the DOLE on the motion of the university. On 6 April 2004, the Secretary of the DOLE rendered a Decision resolving the issues on the economic provisions of the collective agreement for school years 2003–05 and dismissing the Petition to declare the strike illegal. The university contested the Decision before the Court of Appeals. On 4 March 2005, the Court of Appeals rendered a Decision affirming the Secretary on the economic issues but declaring the strike of 19 September 2003 illegal. Both the USAEU and the university moved for reconsideration. On 7 April 2005, the university served notices of dismissal on the union officers who were deemed by the Court of Appeals to have lost their employment status on account of the illegal strike. In response, the USAEU filed another Notice of Strike. On 22 April 2005, the parties commenced negotiations for a new collective agreement. An early impasse ensued. On 25 April 2005, the union again went on strike, on account of which the university served notice that it was withdrawing from further negotiations. On 23 August 2005, the Court of Appeals promulgated a Decision on the Motions for Reconsideration. It affirmed the illegality of the strike of 19 September 2003 but set aside the decisions on the economic issues, ruling instead that “said issues were (a) proper subject of the grievance machinery as embodied in the parties’ CBA”. The court directed the parties to refer the issues to voluntary arbitration. On 20 September 2005, the USAEU and its dismissed officers filed a Petition for Review with the Supreme Court. Two basic issues were raised: the legality or illegality of the strike and the referral to voluntary arbitration. On 28 March 2006, the Supreme Court rendered a Decision denying the Petition and affirming the Decision of the Court of Appeals, dated 23 August 2005. In brief, the Supreme Court declared that the Court of Appeals committed no error in ruling that the collective agreement bound the parties to refrain from strike or lockout and to refer their disputes to voluntary arbitration during the life of the agreement. On 5 May 2006, the USAEU filed a Motion for Reconsideration.
62. 1314. On 29 May 2006, the USAEU filed the complaint against the Government of the Philippines with the ILO. On 14 June 2006, the Supreme Court denied “with finality” the union’s Motion for Reconsideration, “the basic issues raised therein having been duly considered and passed upon by the court in the aforesaid decision and no substantial argument having been adduced to warrant the reconsideration sought”.
63. 1315. In respect of the alleged dismissals (other than the dismissals of the USAEU officers) and intimidation (interference with the USAEU General Assembly), some of these cases were brought to arbitration before the National Labor Relations Commission (NLRC), a tripartite body with equal number of members from the workers, employers, and the public sector, but it ruled for the university; the union did not indicate whether it appealed the Commission’s decisions. Neither did the union indicate the legal steps it took, if any, regarding the cases in Eon Philippines and Capiz Emmanuel Hospital. The Government did not therefore see the need to make any comments on this issue.
64. 1316. Touching on this issue, the Government points out that Philippine law provides the workers adequate protection against unjust dismissal. The following provisions of the Labor Code may be cited:
65. ART. 279. Security of tenure. – In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full back wages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.
66. ART. 280. Regular and casual employment. – The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season.
67. ART. 277. Miscellaneous provisions. (b) Subject to the constitutional right of workers to security of tenure and their right to be protected against dismissal except for a just and authorized cause and without prejudice to the requirement of notice under article 283 of this Code, the employer shall furnish the worker whose employment is sought to be terminated a written notice containing a statement of the causes for termination and shall afford the latter ample opportunity to be heard and to defend himself with the assistance of his representative if he so desires in accordance with company rules and regulations promulgated pursuant to guidelines set by the Department of Labor and Employment. Any decision taken by the employer shall be without prejudice to the right of the worker to contest the validity or legality of his dismissal by filing a complaint with the regional branch of the National Labor Relations Commission. The burden of proving that the termination was for a valid or authorized cause shall rest on the employer. The Secretary of the Department of Labor and Employment may suspend the effects of the termination pending resolution of the dispute in the event of a prima facie finding by the appropriate official of the Department of Labor and Employment before whom such dispute is pending that the termination may cause a serious labor dispute or is in implementation of a mass lay-off.
68. The law is even more protective in the case of union members:
69. ART. 246. Non-abridgment of right to self-organization. – It shall be unlawful for any person to restrain, coerce, discriminate against or unduly interfere with employees and workers in their exercise of the right to self-organization. Such right shall include the right to form, join, or assist labor organizations for the purpose of collective bargaining through representatives of their own choosing and to engage in lawful concerted activities for the same purpose for their mutual aid and protection, subject to the provisions of article 264 of this Code.
70. ART. 248. Unfair labor practices of employers. – It shall be unlawful for an employer to commit any of the following unfair labor practice:
71. (a) To interfere with, restrain or coerce employees in the exercise of their right to self-organization;
72. (b) To require as a condition of employment that a person or an employee shall not join a labor organization or shall withdraw from one to which he belongs;
73. (c) To contract out services or functions being performed by union members when such will interfere with, restrain or coerce employees in the exercise of their rights to self-organization; …
74. (e) To discriminate in regard to wages, hours of work and other terms and conditions of employment in order to encourage or discourage membership in any labor organization.
75. ART. 247. Concept of unfair labor practice and procedure for prosecution thereof. – Unfair labor practices violate the constitutional right of workers and employees to self-organization, are inimical to the legitimate interests of both labor and management, including their right to bargain collectively and otherwise deal with each other in an atmosphere of freedom and mutual respect, disrupt industrial peace and hinder the promotion of healthy and stable labor-management relations.
76. Consequently, unfair labor practices are not only violations of the civil rights of both labor and management but are also criminal offenses against the State which shall be subject to prosecution and punishment as herein provided.
77. ART. 288. Penalties. – Except as otherwise provided in this Code, or unless the acts complained of hinge on a question of interpretation or implementation of ambiguous provisions of an existing collective bargaining agreement, any violation of the provisions of this Code declared to be unlawful or penal in nature shall be punished with a fine of not less than One Thousand Pesos (P1,000.00) nor more than Ten Thousand Pesos (P10,000.00) or imprisonment of not less than three months nor more than three years, or both such fine and imprisonment at the discretion of the court. …
78. 1317. Thus, the Government stresses that while it is incumbent upon the employer, under article 277 of the Labor Code, to notify the worker, in writing, the reasons for his dismissal, the worker must “contest the validity or legality of his dismissal by filing a complaint with the regional branch of the National Labor Relations Commission” in order to be reinstated. If he files a complaint, the “burden of proving that the dismissal was for a valid or authorized cause shall rest on the employer”. If he does not, the dismissal will be deemed valid. The justified or uncontested dismissal of a worker should not be considered a violation by the Government of Conventions Nos 87 and 98.
79. 1318. In a communication dated 26 December 2006, the Government recalls that on 5 May 2006, the USAEU filed a Motion for Reconsideration of the Decision of the Supreme Court, dated 28 March 2006. On 31 May 2006, the union president wrote to the Supreme Court pointing to irregularities which allegedly cast doubt on the authenticity of the 28 March 2006 Decision. On 1 June 2006, the FFW filed a motion for leave to intervene praying that the Decision dated 28 March 2006 be recalled. On 14 June 2006, the Second Division of the Supreme Court issued a resolution deciding “to DENY the motion (for reconsideration of the Union) with FINALITY, the basic issues raised therein having been fully considered and passed upon by the court in the aforesaid decision and no substantial argument having been adduced to warrant the reconsideration sought”. In the same resolution, the court “NOTED” the letter of the union president and “NOTED WITHOUT ACTION” the FFW’s motion for leave to intervene.
80. 1319. On 27 July 2006, the union wrote to the ILO again complaining that the court had denied its Motion for Reconsideration in such a manner and contending that the union raised in its motion issue “questioning the decision which were never raised in the Petition for Review and were definitely not addressed by the Supreme Court”. Apparently, it felt aggrieved by the long-standing rule of Philippine appellate courts to decide only issues raised on appeal by the Petition for Review – and not new issues brought for the first time in a Motion for Reconsideration.
81. 1320. On 31 July 2006, the movant-intervenor FFW filed a motion for reconsideration to set aside the decision of 28 March 2006 and to give due course to its intervention, dated 1 June 2006, which was denied by the court on 14 June 2006. On 3 August 2006, the Supreme Court issued a resolution declaring that it “notes without action” the motions filed on 13 June and thereafter particularly the FFW’s motion for the nullification of the court’s decision. On 4 October 2006, the Supreme Court issued a resolution declaring that the USAEU motion for resolution by the court en banc was denied with finality.
82. 1321. With regard to the publication of the court decisions and resolutions in the web site, it must be stated that the court does not publish minute resolutions, except on cases of extreme importance. It bears noting that the authenticity of the Decision of 28 March 2006 was affirmed by the court in its resolution of 14 June 2006. The acts of the Clerk of Court, particularly its choice or use of paper, pen and envelope in the Notice of Judgement, do not detract from the authenticity of the Decision. The Notice is not an integral part of the Decision. It cannot be overstressed that the allegation that the Supreme Court took bribes – as stated in the union’s communication to the ILO, dated 27 July 2006 – is false and malicious and is a grave affront to the dignity both of the court and the ILO. Moreover, the insistence of the union to have the case referred to the court en banc – after it filed with the Second Division (then presided by the current Chief Justice who presides over the court en banc) a motion for it to reconsider its unanimous decision and after it asked the ILO to throw its weight on the court while the case was pending with that division, and failed to obtain a favourable ruling – is against all norms of fairness and justice. Under the Constitution of the Philippines, the decision of a division of the Supreme Court is considered a decision of the Supreme Court.
83. 1322. The Government finally indicates that the Supreme Court Decision of 28 March 2006 has become final. The Rules of Court, issued by the Supreme Court, under which the union filed its Petition for Review, bars a second motion for reconsideration. The insistence of the union for the ILO to interfere with the final ruling of the court lends no credit to trade unionism nor to the sound working of collective bargaining. The right to freedom of association and collective bargaining is fully guaranteed by the Constitution of the Philippines and labour laws – and is recognized and respected by the courts. However, when trial becomes necessary, unions must still present evidence and sound arguments before the court and should not rely solely on threats of intervention by international bodies and organizations and the possibility of economic and political sanctions. Without evidence, a good law cannot apply. With ample evidence, a good law – even without the intervention of foreign entities – will prevail in a case and bring justice to the parties concerned.

C. The Committee’s conclusions

1. 1323. The Committee notes that the present case concerns allegations that the university) dismissed all 15 officers of the University of San Agustin Employees’ Union – FFW (USAEU) in retaliation for the staging of a strike which was initially found to be legal by the Department of Labor and Employment (DOLE) and subsequently declared illegal by the courts. The complainant also alleges partiality on behalf of the judicial authorities including the Supreme Court, leading to decisions which are alarmingly dangerous for the rights of the workers to collectively bargain, strike and obtain protection against anti-union discrimination, thus encouraging other employers to engage into further acts of anti-union discrimination.
2. 1324. In particular, the Committee observes from the complainant’s allegations and the Government’s reply as well as the numerous judicial documents brought to its attention as attachments to the complaint, that the facts of the case are as follows: the university and the USAEU concluded a collective agreement for a term of five years from 27 July 2000 to 27 July 2005. The economic provisions of the agreement had a duration of three years, until 27 July 2003. The agreement contained a “no strike clause” whereby USAEU undertook not to go on strike during the duration of the agreement. It also contained a grievance procedure culminating in voluntary arbitration in case of grievances arising from the interpretation or application of the agreement (Articles 5, 13 and 14 of the agreement).
3. 1325. The Committee further observes that when the economic provisions of the agreement approached expiration, the parties undertook negotiations over the economic terms and conditions of employment for the period 2003–05. However, the negotiations reached a deadlock and mediation by the National Conciliation and Mediation Board (NCMB) failed. On 14 August 2003 the USAEU filed a Notice of Strike. On 12 September 2003, the USAEU submitted to the authorities its strike vote showing a majority voting to strike. On 15 September 2003, after a one-month cooling off period, the last conciliation efforts of the NCMB failed. On the same date, the university filed with the NCMB a “Motion to Strike Out Notice of Strike and to Refer Dispute to Voluntary Arbitration” on the ground that the action of the USAEU violated the “no strike” clause and the grievance procedure provided for in the collective agreement. The application was not acted upon by the NCMB. On 18 September 2003, the university wrote to the Secretary of the DOLE requesting her to assume jurisdiction over the labour dispute. On the same day, the Secretary of the DOLE issued an AJO assuming jurisdiction over the dispute pursuant to article 263(g) of the Labor Code and enjoining any strike.
4. 1326. The Committee first observes that there are two separate issues in the complaint: first, the abuse of recourse to section 263(g) of the Labour Code – a provision which the Committee has commented upon in earlier cases; and second, the legal nature of the strike action in this specific case and the imposition of compulsory arbitration to determine the wage increase at the university.
5. 1327. The Committee recalls that article 263(g) of the Labor Code states the following:
6. When, in his opinion, there exists a labour dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the SOLE may assume jurisdiction over the dispute and decide it or certify the same for compulsory arbitration. Such assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order.
7. 1328. The Committee recalls the conclusions and recommendations it reached in Case No. 2252 concerning the Philippines [332nd Report, paras 848–890] with regard to article 263(g) of the Labor Code. It recalls in particular that this article is contrary to freedom of association principles which provide that to determine situations in which a strike should be prohibited, the criterion which has to be established is the existence of a clear and imminent threat to the life, personal safety or health or the whole or part of the population [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 581 and 332nd Report, para. 883.] The Committee further recalls that the Government had indicated in that case (in a communication dated 25 June 2003 – a date close to the events under examination in the present case), that it had submitted a proposal of amendment with respect to article 263(g) to the labour committees of the Senate and the House of Representatives, in order to limit the intervention of the Secretary of DOLE to disputes involving essential services [332nd Report, paras 849 and 883]. In successive communications, the Government has kept the Committee informed of progress made in this respect. The Committee notes from the Government’s reply to the allegations in the present case that House Bill No. 1505 proposes to amend article 263(g) of the Labor Code by limiting the Secretary of DOLE assumption power to enterprises engaged in providing essential services such as hospitals, electrical and water supply services and communication and transportation services. Senate Bill No. 1027 also proposes to amend article 263(g) of the Labor Code. The said legislative bills are pending deliberation and consideration by the Committee on Labor of the Senate and House of Representatives, respectively.
8. 1329. The Committee is bound to make two observations in respect of the House Bill No. 1505 and Senate Bill No. 1027 concerning the amendment of article 263(g) of the Labor Code. First, the Committee observes that the Government has been providing information on the draft amendment of article 263(g) since June 2003 without the amendment having been considered by the Senate or the House of Representatives yet. The Committee notes from the complainant’s allegations that: (i) this delay has serious effects on the industrial relations climate in the country, as the alleged practice of the DOLE in issuing AJOs every time there is an impending strike, has become a burden to all labour groups (in this case for instance, it is difficult according to the complainant, to imagine that the particular university was considered as an industry indispensable to the national interest); (ii) the practice effectively puts the union at the mercy of the employer who may negotiate in bad faith and get away with it through the simple expedience of asking for an AJO from the Secretary of the DOLE if the union files a Notice of Strike; the union then is put at a disadvantage and would be left with no choice but to submit to the Order of the DOLE and go through the long process of legal battle; (iii) this is compounded by the many legal requirements found in the Labor Code for a strike to become legal; (iv) worse, when the strike is declared illegal, all union officers may be declared to have lost their employment status (article 264, paragraph 3, of the Labor Code).
9. 1330. While the Committee takes note of the Government’s reply according to which 559 strikes were staged from 1996 to 2005 without intervention from the DOLE, and therefore the right to strike is respected, the Committee must also observe that the mere possibility of intervention by the DOLE in strikes beyond essential services in the strict sense of the term, which is firmly entrenched in the law, along with the practice of intervening in areas which do not seem, at first sight, to be indispensable to the national interest, and the many modalities required for a strike to become legal as well as the serious penalties incurred in case of recourse to an illegal strike, unavoidably have a bearing on the framework and climate within which negotiations take place.
10. 1331. The Committee recalls that compulsory arbitration to end a collective labour dispute and a strike is acceptable if it is at the request of both parties involved in a dispute, or if the strike in question may be restricted, even banned, i.e. in the case of disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population [Digest, op. cit., para. 564]. Moreover, the conditions that have to be fulfilled under the law in order to render a strike lawful should be reasonable and in any event not be such as to place a substantial limitation on the means of action open to trade union organizations [Digest, op. cit., para. 547]. Finally, the use of extremely serious measures, such as dismissal of workers for having participated in a strike and refusal to re-employ them, implies a serious risk of abuse and constitutes a violation of freedom of association [Digest, op. cit., para. 666]. The Committee therefore expresses the firm hope that the amendment of article 263(g), which has been under consideration for at least four years now, will be adopted without further delay.
11. 1332. Second, the Committee recalls that the transportation of passengers and commercial goods is not an essential service in the strict sense of the term; however, this is a public service of primary importance where the requirement of a minimum service in the event of a strike can be justified [Digest, op. cit., para. 621]. Thus, the Committee emphasizes that transportation should not be included among the essential services over which the Secretary of the DOLE may exercise the power of assumption or certification. The Committee urges the Government to take the necessary measures to ensure that the amendment of article 263(g) of the Labor Code does not include transportation among the essential services in the strict sense of the term. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.
12. 1333. To return to the facts of this case, the Committee observes that the strike of the USAEU took place on 19 September 2003. With regard to the conditions under which this strike took place, the Committee notes from the numerous judicial documents brought to its attention that on 19 September at 8.45 a.m., a sheriff from the DOLE attempted to serve on the USAEU officers the AJO which had been issued the previous day. The officers refused to acknowledge receipt of the AJO on the basis of a union resolution dated 17 September 2003 granting sole authority to receive the AJO to its President, Theodore Neil Lasola. The sheriffs posted the AJO at the door of the union’s office and at the entrance of the university. The USAEU President Lasola finally got a copy of the AJO from the sheriff at 5.25 p.m. The sheriff informed the union President that the AJO was considered served and received by the USAEU at 8.45 a.m.. The President wrote “actual time of receipt” 5.25 p.m. next to his signature.
13. 1334. The Committee notes that according to the complainants, the union resolution of 17 September 2003 exclusively authorising the President to receive the AJO was aimed at safeguarding union members from unauthorized instructions that might jeopardize the very peaceful and legal strike. The sheriffs did not exert any effort to locate the USAEU President or wait for him at the site of the strike, where he was present at 11.00 a.m. and 3.00 p.m. after having finished his interviews in different radio stations. At around 5.25 p.m., the USAEU President went back to the main gate and this time, the sheriffs were there waiting to serve the AJO upon him. The sheriffs said that the AJO was considered as already served at 8.45 a.m. at the insistence of the legal counsel of the university, son of the university’s spokesperson, who allegedly dictated upon the sheriffs what to write on their copy concerning the time. Within ten minutes after receiving the AJO, the USAEU President announced through the public address system that the strike was lifted and gave instructions to USAEU members on what to do in compliance with the AJO of the Secretary of DOLE. The USAEU members proceeded to take care of the different strike paraphernalia and those who still had class in the evening proceeded to meet their classes. The complainant adds that its position is that the AJO was served at 5.25 p.m.; however, even if the AJO was taken to have been served at 8:45 a.m., the strike had already started at that time and in these cases, it is the settled practice of the Secretary of the DOLE to give 24 hours to strikers as a reasonable time within which to return to work; the USAEU respected this deadline. In fact, the strike ended on the day it started and workers returned to work earlier than the deadline set by the university itself in a public announcement which appeared the following day in the local newspapers (the deadline set by the university was Monday 22 September 2003).
14. 1335. The Committee observes from the documents before it, that on 18 September 2003, the university wrote to the Secretary of the DOLE requesting her to assume jurisdiction over the labour dispute, which the Secretary did, by issuing an AJO the same day on the basis of article 263(g) of the Labor Code. Furthermore, on 24 September 2003 the university filed with the NLRC a Petition to declare the strike illegal and declare all the USAEU members and officers who participated in the strike to have lost their employment status. This petition was later consolidated, on motion by the university, with the issues to be decided by the Secretary of the DOLE in the framework of her authority to decide all aspects of the dispute on the basis of article 263(g) of the Labor Code.
15. 1336. The Committee further notes that the decision of the Secretary of the DOLE on both the economic aspects of the dispute and the legality of the strike was issued on 6 April 2004. On the economic aspects of the dispute, the Secretary’s decision was in favour of the USAEU’s position and the Secretary directed the parties to amend the collective agreement in conformity with her findings. Moreover, with regard to the issue of the strike the Secretary of the DOLE reached the following decision:
16. Assuming for the sake of argument, that there was a technical flaw vis-à-vis the letter of the “no strike, no lockout” clause [in the parties’ collective agreement], the facts of this case indicate indubitably that there was good faith on the part of the strikers. Since this involves a social legislation, the law on strike should be interpreted “not by the letter that killeth but by the spirit that giveth life.” Moreover, there was no blatant or naked display of arrogance to merit the ultimate penalty of loss of employment. Extreme care should be taken in imposing the said penalty of dismissal because it brings untold miseries to the employees and to their families. Needless to say, the strikers’ employment is their primary means of livelihood.
17. The university’s claim of defiance by the union when they allegedly refused or evaded the service of the Assumption Order is not meritorious. Records reveal that the Order was received by the union President only at 5.25 p.m. and the same does not constitute defiance because after receipt of the Order the union President directed the Officers and participating members to lift the strike.
18. Assuming arguendo that effective notice has already been served on the strikers upon the posting by the sheriff of the Assumption Order in the union’s bulletin board, in the morning, still the record undoubtedly shows that the union did comply within the period set forth by this Office, within which to return to work. The university should look at the totality of the conduct of the strikers and realize that they have not manifested a naked display of recalcitrance nor have they shown bad faith to the university. In the spirit of Christian charity [n.b. the university is run by Christian priests] and compassion, the Administration ought to realize that loss of employment status is too harsh a penalty given the substantial compliance undertaken by the strikers. For all these reasons, this Office holds that the evidence do not warrant a declaration of illegality of the strike, much less loss of employment of all strikers.
19. …
20. The strikers have not, based on evidence, contravened any public policy nor manifested any disorderly behaviour, much less, performed any act inconsistent with national interest. On the contrary, the members of the union, in this case has shown a spontaneous obedience to the Order of this Office and has not shown any sign of recalcitrance. Therefore, the force of law and jurisprudence makes it imperative not to give due course to the petition to declare the strike illegal.
21. …Consequently, there is no basis whatsoever to declare loss of employment status on the part of any of the striking union members [pp. 18–19].
22. 1337. The Committee notes from the complainant’s allegations that despite the fact that the decision of the Secretary of the DOLE was final and executory according to article 263(i) of the Labor Code, the university contested the decision before the Court of Appeals on the ground that the Secretary committed a grave abuse of discretion. In the meantime, according to the complainant, the university proceeded to dismiss five workers (John Mirasol, a USAEU officer, Benonie Dela Cruz, Alexander Sardon, Victoria Callanga, Melvin Garrido) on various pretexts, but in reality on account of their trade union activities as they were close associates of the union President and had participated in the strike. The dismissals were contested before the NLRC which gave, according to the complainant, pro-management rulings and dismissed the appeals. Finally, according to the complainant, in December 2003 the university prevented the USAEU from holding its general assembly during class days as had been the practice for many years and as provided in the collective agreement. By that time, most trade USAEU members had reportedly been intimidated by the stance of the management and did not participate in the general assembly.
23. 1338. The Committee further notes that on 4 March 2005 the Court of Appeals handed down its decision on the appeal lodged by the university against the decision of the Secretary of the DOLE. On the issue of benefits, the Court of Appeals upheld the decision of the Secretary of the DOLE. On the issue of the legality of the strike, the Court of Appeals reversed the previous decision and ruled that the strike was illegal because the USAEU defied the AJO by continuing the strike until the afternoon of 19 September 2003. In particular:
24. [The Secretary of the DOLE] acted with grave abuse of discretion in disregarding the sheriffs’ report stating that the AJO was considered served as of 8.45 p.m. of September 19, 2003. Hence, the strike conducted by the union which lasted until the receipt by their union president of the AJO at 5.25 p.m. was clearly illegal … .
25. A cursory reading of [article 263(g) of the Labor Code] shows that, when the Secretary of Labor assumes jurisdiction over a labour dispute in an industry indispensable to national interest or certifies the same to the NLRC for compulsory arbitration, such assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout. Moreover, if one had already taken place, all striking workers shall immediately return to work … .
26. Once an [AJO] is issued by the [Secretary of the DOLE] strikes are enjoined or if one has already taken place, all strikers shall immediately return to work. An assumption and/or certification order of the Secretary of Labor automatically results in a return-to-work of all striking workers … .
27. The union officers, as a result, are deemed to have lost their employment status for having knowingly participated in an illegal act. The [university] may at its option serve notice of their termination from employment. However, an ordinary striking worker cannot be discharged for mere participation in an illegal strike. There must be proof that he committed illegal acts during a strike [pp. 7, 9–10 emphasis added].
28. 1339. The Committee further notes that according to the complainant, pursuant to this decision the university filled a partial Motion for Reconsideration of the part of the decision which upheld the Secretary of the DOLE findings with regard to the workers’ economic benefits, while the USAEU filed a Motion for Reconsideration concerning the part of the decision relevant to the strike and the loss of employment status of the trade union officers. Despite this however, and in total disregard of the fact that the decision had not become final and executory due to the appeals filed by both parties, the university proceeded to dismiss all USAEU officers immediately (Theodore Neil Lasola, Merlyn Jara, Julius Mario, Flaviano Manalo, Rene Cabalum, Herminigildo Calzado, Luz Calzado, Ray Anthony Zuñiga, Rizalene Villanueva, Rudante Dolar, Rover John Tavarro, Rena Lete, Alfredo Goriona, Ramon Vacante and Maximo Montero).
29. 1340. The Committee further observes that the Court of Appeals in its decision of 23 August 2005 did not comment on the way the university proceeded to dismiss the workers and simply rejected the appeal lodged by the USAEU, upholding the decision previously reached by the court on this matter. However, on the issue of benefits which had been appealed upon by the university, the court ruled that the Secretary of the DOLE “abused her discretion in resolving” this question which should be referred once again back to voluntary arbitration. The Committee notes that according to the court’s decision:
30. … [the issues in dispute] arise from the interpretation or implementation of the CBA [collective bargaining agreement] and […] from the interpretation or enforcement of company personnel policies. Thus, these are proper subjects of the grievance machinery as embodied in the parties’ CBA. It must be remembered that the CBA is the law between the parties. It is an agreement freely and voluntarily entered into by them. All terms and conditions therein must be complied with. The parties have further agreed that, should the grievance machinery as provided in the CBA fail to resolve the dispute, the same shall be referred to a Voluntary Arbitrator for arbitration and final resolution.
31. Clearly therefore, the issues on the economic provisions of the CBA must be resolved through the grievance machinery agreed upon by the parties. As had been consistently held, voluntary arbitration takes precedence over other dispute settlement devices [pp. 11–12].
32. 1341. The Committee further notes that the USAEU filed a Petition for Review of this decision with the Supreme Court arguing that the Secretary of the DOLE did not commit a grave abuse of discretion but simply abided by article 263(g) of the Labour Code which empowers her to assume jurisdiction over a dispute; moreover, the decision of the Secretary of the DOLE reflected the case law of the Supreme Court which had already ruled on the issue of benefits with finality in the St Joseph College case. However, in the decision reached on 28 March 2006 the Supreme Court affirmed the decision of the Court of Appeals.
33. 1342. The Committee further notes that the Supreme Court did not rule on the issue of the dismissal of all union officers on the basis of a decision which was not final and executory. The Committee thus notes that according to the complainant, the trade union officers were discharged despite 12, 18, 20 and 25 years of unblemished and excellent records. According to the complainant, the university’s actions were aimed at union busting as these premature dismissals had “sown fear” among USAEU members and effectively suppressed unionism in the university, “terrorizing” those who intended to negotiate higher terms and conditions of employment; nobody among the remaining USAEU members had the courage to pursue in court their share in the benefits for fear of a backlash from the university management.
34. 1343. The Committee notes that the Supreme Court decided inter alia on the following points: (i) the strike was illegal because the union officers should have “immediately” returned to work once the AJO was served upon posting instead of circumventing the standard operating procedure (according to which an AJO is considered served upon posting); the alleged well settled practice of the DOLE to give 24 hours within which to return to work has no basis in law and jurisprudence; the courts have never interpreted the phrase “immediately return to work” found in article 263(g) to mean “within 24 hours”; on the contrary, the tenor of this phrase indicates “an almost instantaneous or automatic compliance for a striker to return to work once an AJO has been duly served”; (ii) the Secretary of the DOLE should not have exercised the discretion granted to her under article 263(g) of the Labor Code in assuming jurisdiction over this dispute, the reason being that the issues under dispute fell under the grievance procedure clause found in the collective agreement as matters arising from the interpretation or implementation of the collective agreement or from company personnel policies; (iii) thus, the DOLE was not the appropriate body to carry out arbitration and the fact that the employer had already given its accord to such arbitration was immaterial; the university only did so, according to the Supreme Court, because the NCMB had previously failed to grant the university with the legal protection it should receive, by wrongfully enabling the union to stage the strike of 19 September 2003; thus, deprived of a remedy against the strike, the university was left with no option but to refer the dispute to the DOLE; (iv) as a result, the Supreme Court decided to refer the dispute to arbitration once again as an exception to the general rule according to which the Secretary of the DOLE has jurisdiction over all aspects of a labour dispute. The Supreme Court adds:
35. We are not unmindful … that the [Secretary of the DOLE] jurisdiction over labour disputes must include and extend to all questions and controversies arising therefrom, including cases over which the Labor Arbiter has exclusive jurisdiction. However, we are inclined to treat the present case as an exception to that holding. For, the NCMB’s inaction on the university’s motion to refer the dispute to voluntary arbitration veritably forced the hand of the university to seek and accordingly submit to the jurisdiction of the [Secretary of the DOLE] ... .
36. In short, the peculiar facts of the instant case show that the university was deprived of a remedy that would have enjoined the union strike and was left without any recourse except to invoke the jurisdiction of the [Secretary of the DOLE] [pp. 15–17, 19].
37. 1344. The Committee further notes that on 5 May 2006 the USAEU filed with the Supreme Court a Motion for Reconsideration bringing to the court’s attention various objections including alleged irregularities in its decision. On 5 June 2006 the complainant in this case (FFW) filed a “Motion for Intervention” with the Supreme Court arguing among other things, that the imputed decision set a dangerous precedent as there was no longer any distinction between compliance and defiance of the legal requirements for staging a strike. The court, in a Resolution of 14 June 2006, rejected the USAEU Motion “with finality”, “the basic issues raised therein having been duly considered and passed upon by the court in the aforesaid decision and no substantial argument having been adduced to warrant the reconsideration sought.” The intervention filed by the FFW was simply noted “without action”. The Committee notes that the complainant expressed its shock for the fact that the objections raised in its 64-page Motion were left unanswered. The USAEU then filed a Motion for referral to an en banc decision. On 4 October 2006, the Second Division of the Supreme Court issued a Resolution denying the Motion with finality stating that “no further pleadings shall be entertained” by the court.
38. 1345. The Committee finally observes that according to the complainant in the meantime, i.e., since 25 April 2005, the USAEU went on strike on the ground of union busting. This time however, not many members joined the strike and no AJO came from the DOLE. The USAEU members were allegedly overcome by great fear of reprisal from management according to the complainant. After more than five months of strike, the few members who joined the strike returned to work. Meanwhile, according to the complainant’s allegations, several discharged officers experienced the “unseen hand” of the university when applying for jobs in other schools as they would be considered at first because of their good credentials but would eventually be rejected for reasons not clear to them.
39. 1346. The Committee notes that the Government replied to the above allegations by indicating that the union apparently felt aggrieved by the long-standing rule of the appellate courts to decide only issues raised on appeal by the Petition for Review – and not new issues brought for the first time in a motion for reconsideration. Moreover, the successive communications of the complainant to the ILO, and the insistence of the USAEU to have the case referred to the Supreme Court en banc – after it filed with the Second Division (then presided by the current Chief Justice who presides over the court en banc) a motion for it to reconsider its unanimous decision and after it asked the ILO to throw its weight on the court while the case was pending with the Division, and failed to obtain a favourable ruling – is against all norms of fairness and justice. The Supreme Court Decision of 28 March 2006 has become final and the insistence of the complainant for the ILO to interfere with the final ruling of the court lends no credit to trade unionism nor to the sound working of collective bargaining. The right to freedom of association and collective bargaining is fully guaranteed by the Philippine Constitution and labour laws and is recognized and respected by the courts. However, when trial becomes necessary, unions must still present evidence and sound arguments before the court and should not rely solely on threats of intervention by international bodies and organizations and the possibility of economic and political sanctions. Without evidence, a good law cannot apply. With ample evidence, a good law – even without the intervention of foreign entities – will prevail in a case and bring justice to the parties concerned.
40. 1347. Finally, the Committee notes that with regard to the allegations of the initial five dismissals of workers and interference in the USAEU general assembly, the Government points at the legal provisions which afford protection against anti-union discrimination and recalls that some of these cases were brought before the NLRC, a tripartite body with equal number of members from the workers, employers and the public sector, which ruled for the employer. The Government therefore does not see any need to make specific comments on this case.
41. 1348. With regard to the decisions of the Court of Appeals and the Supreme Court which declared the strike of 19 September 2003 illegal and the workers to have “automatically” lost their employment status, the Committee notes that little consideration had been given to: (i) the fact that the workers went on strike in the certainty that they had complied with all the stringent legal prerequisites for the staging of strikes, as evidenced by the fact that the NCMB did not act upon a university Motion to prevent the strike filed on 15 September 2003; and (ii) the fact that the Secretary of the DOLE, empowered by article 263(g) and (i) to issue final decisions on such matters, found that there was no ground for declaring the loss of employment status for the 15 trade union officers, as the strike had been lifted within the legal deadlines and that the union leaders had demonstrated good faith in their acts once the AJO was officially received by the president of the union.
42. 1349. While taking due not of the no strike clause set out in the collective agreement in force, the Committee also observes that the economic provisions of that agreement came to an end two years prior to the expiration of the agreement as a whole and thus would certainly give rise – at the very least – to an ambiguity as to how the negotiations of the new economic conditions would be carried out. The Committee observes that there are diverging opinions as to the applicability of these provisions, including those concerning the grievance mechanism, in this specific case. The Committee nevertheless, in light of the facts of the case and the appreciation brought to bear by the Secretary of Labor, considers that greater consideration could have been given by the courts to: (i) the need to ensure proportionality between the sanction imposed, i.e., the automatic loss of the employment status of 15 trade union officers (the entire trade union committee), and the gravity of any offence committed through a peaceful strike which lasted less than nine hours and was lifted even before the deadline set by the employer; (ii) the impact that the dismissals of the entire trade union committee was likely to have on the continuing existence of the trade union in the university as well as on the ongoing negotiations between the university and the USAEU; (iii) the fact that the employer carried out the dismissals before the court decision became final and executory, refusing at the same time to implement that part of the decision which was favourable to the workers, as well as the intimidating effect that this might have on the trade union officers and members who were faced with a fait accompli.
43. 1350. The Committee recalls that the use of extremely serious measures, such as dismissal of workers for having participated in a strike and refusal to re-employ them, implies a serious risk of abuse and constitutes a violation of freedom of association [Digest, op. cit., para. 666].
44. 1351. The Committee observes that in the circumstances of this case, the USAEU was not able to have its allegations of anti-union discrimination and interference examined by the courts, as the latter apparently considered such allegations as new facts which emerged for the first time in the course of the case, and rejected their examination on appeal.
45. 1352. In these circumstances, the Committee requests the Government to review the question of the 15 dismissed trade union officials and to ensure a conciliation with the university regarding their reinstatement and to keep the Committee informed of developments in this respect.
46. 1353. With regard to the court decisions on the workers’ benefits, the Committee recalls that the determination of wages, including benefits, is a subject for collective bargaining in a free and voluntary framework [see Digest, op. cit., para. 913]. The Committee recalls that Article 4 of Convention No. 98, ratified by the Philippines, requires the promotion of collective bargaining. The right to bargain freely with employers with respect to conditions of work constitutes an essential element in freedom of association, and trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom the trade unions represent. The public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof. Any such interference would appear to infringe the principle that workers’ and employers’ organizations should have the right to organize their activities and to formulate their programmes [Digest, op. cit., para. 881].
47. 1354. In light of the above, the Committee considers that recourse to article 263(g) of the Labour Code for compulsory arbitration was inappropriate and requests the Government to inform it of the outcome of voluntary arbitration ordered by the court over the terms and conditions of employment of the university workers for the period 2003–05. It also requests the Government to take all necessary measures so as to provide for consultations between the university and the USAEU without delay aimed at promoting good faith negotiations between the parties with a view to determining the future terms and conditions of employment of the workers by means of a new collective agreement. The Committee requests to be kept informed in this respect.
48. 1355. As for the allegations of blacklisting, while noting with regret that the Government does not provide any reply in this respect, the Committee recalls that all practices involving the blacklisting of trade union officials or members constitute a serious threat to the free exercise of trade union rights and, in general, governments should take stringent measures to combat such practices [Digest, op. cit., para. 803.]
49. 1356. As to the allegations of undue influence of the university attorney upon the Supreme Court, the Committee, expresses regret at the bitterness of the dispute brought before it, observes that the employer also formulated accusations of corruption against the DOLE for the decision of 6 April 2004 which was favourable to the union (see Motion for Partial Reconsideration of 6 April 2005, paragraph 17) and considers that it is not in a position to address these issues.
50. 1357. The Committee also notes that according to the complainant, the abovementioned decisions, especially the Supreme Court decision which automatically becomes part of the law of the land, incited the employers in the Visayas region to become aggressively engaged in union busting and dismiss employees without fear of sanctions. Thus, according to the complainant, 39 union members from Eon Philippines Industries Corporation were dismissed on the ground of “business losses” and “excess manpower” without the company presenting proof to this effect (the company continued to hire personnel). This was a newly organised union by the Federation of Free Workers in the Visayas. Only those workers who signed in a complaint against the management with the DOLE were discharged. Seven of the discharged union members were union officers. Moreover, one union officer at Capiz Emmanuel Hospital in Roxas City, was dismissed after fabricated charges (financial mismanagement), while the other officers of the union were bluntly told by the Hospital Administrator that they would suffer the same fate as the union officers of the USAEU.
51. 1358. The Committee notes that in reply to these allegations, the Government confines itself to noting that the complainant does not indicate any legal steps taken against these acts.
52. 1359. The Committee observes that the letters of dismissal brought to its attention are confined to informing the trade union officers and members that their employment is terminated due to a worker reduction process without any indication as to the reasons for which the specific workers were selected for dismissal or any prior consultation with the union. The Committee recalls that the application of staff reduction programmes must not be used to carry out acts of anti-union discrimination [Digest, op. cit., para. 796]. In a case involving a large number of dismissals of trade union leaders and other trade unionists, the Committee considered that it would be particularly desirable for the government to carry out an inquiry in order to establish the true reasons for the measures taken [Digest, op. cit., para. 812]. The Committee therefore requests the Government to ensure that an independent inquiry is carried out immediately into the allegations of anti-union discrimination in the Eon Philippines Industries Corporation and the Capiz Emmanuel Hospital in Roxas City and if the acts of anti-union discrimination are confirmed, to ensure that the workers concerned are reinstated in their posts without loss of pay. The Committee requests to be kept informed in this respect.