Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 371, Mars 2014

1. 766. The complaint is contained in a communication dated 17 June 2013 from the Trade Union Congress of the Philippines (TUCP).
2. 767. The Government forwarded its observations to the allegations in a communication dated 1 October 2013.
3. 768. 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 complainant’s allegations

1. 769. In its communication dated 17 June 2013, the complainant organization alleges that the Government interfered with the right of workers to elect freely their representatives by reversing the results of the elections of its officers.
2. 770. The complainant indicates that the TUCP is a legitimate labour centre registered in accordance with the requirements of the Labour Code, and that its constitution has been respected by past Philippine governments as well as by the ICFTU (now ITUC) since its affiliation over 30 years ago.
3. 771. According to the complainant, TUCP President, Democrito T. Mendoza, 90 years of age, submitted on 19 October 2011 a letter of resignation addressed to the TUCP Board declaring that he resigned as TUCP President effective 1 November 2011. From 19 October to 1 November 2011, the then TUCP General Secretary, Ernesto F. Herrera requested Mr Mendoza several times to reconsider and withdraw his resignation but the latter refused reiterating that his decision was deliberate, voluntary and final. Mr Herrera reported this event at a TUCP Leaders’ Caucus on 29 October 2011, with the presence of TUCP Vice-Presidents, Victorino Balais, Zoilo Dela Cruz (also TUCP Treasurer) and Alejandro C. Villaviza (also TUCP Legal Counsel), and TUCP Executive Board Member Arnel Dolendo of the Philippine Trade and General Workers Organization (PTGWO TUCP). On 1 November 2011, the TUCP Executive Board had not received any letter from Mr Mendoza withdrawing his resignation. His resignation therefore took effect.
4. 772. The complainant states that on 9 November 2011, the Executive Board, which met upon the request of Mr Herrera, was given a copy of Mr Mendoza’s resignation letter and noted, accepted and approved the resignation. Mr Herrera further requested the legal opinion of TUCP Vice-President and Legal Counsel, Alejandro Villaviza, according to which: (i) Mr Mendoza is deemed resigned effective 1 November 2011, in the absence of a letter to recall his letter of resignation; (ii) the Executive Board accepted the resignation of Mr Mendoza and as a gesture of recognition of his past services, the Executive Board approved the resolution creating the position of President Emeritus (sponsored by TUCP National Treasurer Zoilo Dela Cruz); and (iii) in accordance with section 9, paragraph 2, article X, TUCP Constitution dated 4 June 1986 as amended on 14 December 2007, TUCP General Secretary Herrera succeeds Mr Mendoza as TUCP President effective 2 November 2011 and shall serve for the unexpired term of Mr Mendoza.
5. 773. The complainant states that Mr Herrera took his oath of office as President in accordance with the TUCP Constitution on 10 November 2011 before the mayor, to comply with his responsibility under the TUCP Constitution and the decisions of the TUCP Executive Board during the meeting of 9 November 2011. He started discharging his duties as TUCP President. Immediately after 1 November 2011, he issued appointments and signed contracts with various international labour federations and organizations as the new President of TUCP, including several projects. All elective officials and professional staff of the TUCP supported and joined Mr Herrera as the new President of the TUCP.
6. 774. The complainant also indicates that, on 18 November 2011, Mr Herrera, in his capacity as new TUCP President, called for a Special TUCP General Council meeting at 1 p.m. at the TUCP headquarters. Mr Mendoza, pretending to still be TUCP President, and after learning of the meeting called by Mr Herrera at 1 p.m., also called for a General Council meeting on the same date, 18 November 2011, but set it earlier at 10 a.m., also at the TUCP Headquarters. Only Associated Labor Union (ALU) representatives to the General Council and two other federation representatives arrived and responded to the meeting called by Mr Mendoza. Without a quorum, they stayed in the meeting room for the subsequent meeting called by Mr Herrera. More General Council members arrived at 1 p.m. The new arrivals, by themselves, constituted a quorum, even discounting those who attended in response to the meeting called by Mr Mendoza. This led to some verbal confrontation when Mr Herrera arrived and took over as presiding officer. Mr Villaviza stated that he was there to attend the meeting called by Mr Herrera as the legitimate TUCP President, and that, since Mr Mendoza had resigned, he did not recognize him anymore as TUCP President. He also recalled that Mr Herrera had taken over as President pursuant to the TUCP Constitution, as he did not want to appear irresponsible by not assuming the vacant leadership position and the corresponding responsibilities. Mr Mendoza presented the Manifesto of Support calling on him to continue as TUCP President, primarily signed by the officials of his federation (ALU), since two other officials, TUCP Treasurer Zoilo Dela Cruz and Roy Seneres, withdrew their signatures. The meeting became heated because one of the sons of Mr Mendoza, ALU Vice-President Michael Mendoza, issued death threats against Mr Villaviza.
7. 775. According to the complainant, Ms Milagros Ogalinda expressed deep sadness over the fact that loyalty was being verified by Mr Mendoza in this way. Mr Villaviza added that his loyalty was to the organization and to the constitution. Mr Mendoza explained that the reason for his resignation was to check the loyalty of the members to him and to vent his disgust and frustration against Mr Cedric Bagtas, Deputy General Secretary. Mr Gilbert Lorenzo and several other members of the General Council proposed that Mr Mendoza and Mr Herrera meet on their own to resolve the problem, and set aside legal technicalities. Ms Susanita Tesiorna stressed, however, the supremacy of the Constitution in resolving disputes in the organization. The proposal was accepted; it was agreed that, if no amicable settlement was reached, the matter should be decided in accordance with provisions of the TUCP Constitution. On 23 January 2012, Mr Herrera invited Mr Mendoza for dinner and a one-on-one meeting to resolve the pending issue, but no amicable resolution was reached. Mr Mendoza, at this point in time, did not accept the position of President Emeritus.
8. 776. The complainant further states that, on 24 January 2012, Mr Mendoza called a meeting of his group consisting of 11 federations (seven ALU unions and four other unions). TUCP Vice President Victorino Balais was then appointed General Secretary. The complainant stresses that: (i) the meeting was not valid due to the lack of authority of Mr Mendoza to call a meeting; and (ii) the General Secretary election was not valid as it was not on the agenda and there was no quorum. Moreover, if Mr Mendoza was still President, the General Secretary position could not have been vacant. On 25 January 2012, Mr Mendoza’s group took physical occupancy of the TUCP headquarters, allegedly upon the order of Mr Mendoza. Office personnel were pressured to leave the premises and not given enough time to take personal belongings. Mr Herrera, TUCP Vice-Presidents, Robert Flores and Mr Villaviza and staff went to TUCP to make sure that staff and property were safe. They sought the assistance of four policemen of Quezon City. At the closed gate were about 25 individuals in full alert, led by Michael Mendoza, Cecilio Seno, Jr., and Congressman Raymond Mendoza. Despite one hour of peaceful negotiations and the presence of police, Mr Herrera’s group was not allowed to enter the compound and left peacefully, in order to prevent untoward violence. On 26 January 2012, Mr Mendoza’s group held a press conference and sent out a press release, loaded with baseless and serious accusations against Mr Herrera and his group. Mr Herrera also held a press conference and sent out a press release announcing his succession to the office of TUCP President following the resignation of Mr Mendoza which had been unanimously accepted by the TUCP Executive Board; and informing the public about TUCP’s plan to replace Raymond Mendoza as TUCP party list representative due to loss of confidence and serious allegations of self-dealing.
9. 777. The complainant also indicates that, on 27 January 2012, Mr Herrera called for a general council meeting. The council: (i) reaffirmed that Mr Mendoza had resigned as TUCP President effective 1 November 2011; (ii) reaffirmed the TUCP Executive Board decision affirming the resignation; (iii) reaffirmed the succession of erstwhile TUCP General Secretary, Ernesto F. Herrera as TUCP President, under the TUCP Constitution and Standing Orders; (iv) condemned the illegal occupation of the TUCP premises by Mendoza’s group and the ransacking of TUCP property; and (v) welcomed the reactivation of membership by three federations, National Union of Bank Employees (NUBE-UNi), National Labor Union (NLU) and Philippine Association of Free Labor Union (PAFLU) which had stayed away for years because of undemocratic ways under the previous administration; and the projected formal entry of VOICE (Voice in the Call Center Industry) and the Teachers Organization of the Philippines – Public Sector (TOPPS). On 16 February 2012, Mr Herrera met with the DOLE Secretary and Undersecretary and reiterated that, based on the Constitution, Mr Mendoza ceased to be President starting 1 November 2011, which was confirmed on 9 November 2011 by the Executive Board, and that he (Herrera) is the new President with the only vacant position being that of the General Secretary. The DOLE Secretary expressed her hope that the crisis would be resolved amicably and encouraged the conduct of a General Assembly to address the issue.
10. 778. The complainant also states that, on 7 March 2012, the joint meeting of General Council and Executive Board approved, among others, the following resolutions: (i) holding of a TUCP special convention on 16 March 2012, to amend the Constitution and take up such other matters that would address the present crisis besetting the TUCP; (ii) proposed amendments to the TUCP Constitution; and (iii) preventive suspension against the unions supporting Mr Mendoza. Formal notices were subsequently sent to affiliates to invite them to attend the pre-convention meeting on 9 March 2012. The Credentials Committee, chaired by Mr Dela Cruz, and the Constitutional Amendments, Motions and Resolutions Committee, chaired by Mr Villaviza, were created for the special convention of the TUCP leadership.
11. 779. According to the complainant, the TUCP special convention took place on 16 March 2012, with the participation of 350 delegates representing all 16 original federations from the TUCP and ten reactivated members and new federations. The Federation of Free Workers, other unions, the Employers’ Confederation of the Philippines, international organizations, the media and others attended as observers. The General Secretary of the International Trade Union Confederation–Asia Pacific (ITUC–AP) endorsed Mr Herrera’s constitutional succession to the TUCP presidency, other international federations and foreign unions echoed support and the ITUC General Secretary subsequently sent him a congratulatory message. The convention unanimously confirmed and/or adopted the following resolutions: (i) General council resolution authorizing the conduct of a special convention; (ii) amendments to the TUCP Constitution (including the creation of an Internal Relations and Welfare Board to address issues such as union raiding, intra- or inter-union conflict between affiliates, violations of the TUCP Constitution and other matters pertaining to the ethical behaviour of any union or its leaders; the limitation of the term of office of the President, the General Secretary, and Treasurer to one term, subject to one re-election only; expulsion of union officers as a possible sanction for acts inimical to the interest of the organization, instead of expulsion of the affiliate organization; disallowing the split of affiliate organizations for purposes of gaining additional seats in the voting mechanism of the organization; and prohibiting a federation leader from representing more than one union in the convention); and (iii) perpetual ban on Mr Mendoza, Victorino Balais, Arnel Dolendo, Raymond Mendoza, Michael Mendoza and Gilbert Lorenzo from holding office in the TUCP. Mr Herrera and Mr de la Cruz were re elected by the convention as President, and Treasurer, respectively, while Mr Jose P. Umali, Jr. was elected as the new General Secretary, Mr Cedric Bagtas as Deputy General Secretary and Ms Milagros Ogalinda as Assistant Treasurer. The following persons were elected to the 23-member TUCP Executive Board: Susanita G. Tesiorna; Roberto Flores, Gorge Alegarbes; Temistocles Dejon; Arturo Basea; Jesus B. Villamor; David Diwa; Roy Seneres; Eleuterio Tuazon; Alejandro C. Villaviza; and Milagros C. Ogalinda. The corresponding documents were filed thereafter with the Bureau of Labor Relations of the Department of Labor and Employment (BLR–DOLE) to reflect the changes in the board as well as the amendments to the TUCP Constitution.
12. 780. The complainant indicates that, in April 2012, the BLR–DOLE initiated motu proprio the case docketed as BLR-O-TR-21-4-27-12 entitled “Intra Union Dispute at the Trade Union Congress of the Philippines (TUCP)”. This was done despite the TUCP Special Convention and election of new TUCP officers. In the interim, Mr Herrera continued to discharge the duties and functions of the office of the president by issuing appointments and entering and executing contracts and agreements, both locally and internationally. Further, Mr Herrera was appointed General Secretary of ASEAN Trade Union Council in his capacity as TUCP President. Similarly, invitations for international fellowship programmes for unions from international organizations and union federations are coursed through Mr Herrera. Over a span of 12 months under Mr Herrera’s leadership, some 30 trade union leaders and members were sent/participated in various international conferences and training, including the 2013 International Labour Conference (ILC) in Geneva.
13. 781. On 12 August 2012, the BLR–DOLE issued the following decision, the dispositive portion of which reads:
    • Wherefore, premises considered, this Office directs the observance of status quo ante or the status prior to the contested resignation. All TUCP elected and appointed officers, with Mr Democrito T. Mendoza as National President and Sen. Ernesto F. Herrera as General Secretary, shall assume and perform the functions of their respective offices pursuant to the provision of section 2, rule XI of Department Order No. 40, series of 2003, as amended, pending a final determination by the TUCP members of their rightful leaders through the secret balloting in a Special Convention. Accordingly, this Office DIRECTS the following: (1) Convening by Mr Mendoza and Sen. Herrera the TUCP General Council, prior to the resignation dispute, for the conduct of election of a new set of TUCP officers, observing the provisions of 2007 TUCP Constitution, within fifteen (15) days from receipt of this Order. The TUCP General Council shall nominate the representatives of the two contending groups to an independent committee hereby created to conduct the election of TUCP officers; and (2) An independent committee is hereby constituted. It shall be composed of a chairperson from the Department of Labor and Employment (DOLE) and two representatives each from the contending groups of Mr Mendoza and Sen. Herrera. The chairperson shall have no voting power except to break a tie. The committee, henceforth, to be called the Committee of Five, shall observe the provisions of the TUCP Constitution particularly section 3(e), article VIII thereof, in the conduction of the election and of its business as the Committee on Election.
14. 782. The decision was appealed by Mr Herrera to the Office of the Secretary of the DOLE pursuant to rule XI, section 16 of Department Order No. 40-03, series of 2003, as amended. According to the complainant, in December 2012, the group of Mr Mendoza called for a Convention, in violation of the decision of the BLR–DOLE, wherein Mr Mendoza relinquished his position which led to the election of Victorino Balais as president.
15. 783. In the complainant’s view, in May 2013, the BLR–DOLE has unlawfully split in its official correspondence the organization into two TUCPs: (i) TUCP–ITUC, being represented by Mr Herrera, and (ii) TUCP, being represented by Victorino Balais. More recently, the preliminary list of delegates for the Philippines submitted by the Government to the ILC, while including the names and positions “UMALI Jr., Jose, Mr, General Secretary, TUCP–ITUC” and “VILLAVIZA, Alejandro, Mr, Vice-President and Legal Counsel, TUCP”, also enumerated the following persons whose names have NOT been submitted by Mr Herrera to the Government: “SENO, Gerard, Mr, Vice-President and General Secretary, Trade Union Congress of the Philippines (TUCP)”; “OCAMPO, Esperanza, Ms, Vice-President and Treasurer, TUCP”; “DOLENDO, Arnel, Mr, Vice-President and Chief Legal Counsel, TUCP”; “CORRAL, Luis Manuel, Mr, Member, Executive Board, TUCP”; and “ARCOS, Eva, Ms, Member, Executive Board, TUCP”.
16. 784. In conclusion, the complainant believes that the Government committed the following serious and flagrant violations of trade union rights protected under Convention No. 87. Firstly, the complainant alleges that the assumption of intra-union controversy initiated solely by the BLR–DOLE without any complaint filed by interested parties amounted to direct and prejudicial interference and impairment of the rights of the workers to elect their representatives. In the TUCP Constitution, section 9 of its article X provides that: (i) the General Secretary shall take the place of the President in case of temporary absence of the latter; and (ii) in the event of vacancy in the office of the President by reason of death, permanent disability, resignation or removal from office, the General Secretary shall succeed the latter and shall serve for the unexpired term. Upon the resignation of Mr Mendoza, Mr Herrera assumed the presidency pursuant to the above provision. The urgency required for the assumption of the General Secretary to the Presidency during temporary absence is the same as the urgency for permanent vacancy or resignation. There is all the more reason for the urgent and immediate assumption by the General Secretary of the office of the President in case of permanent vacancy or resignation considering the extent and scope of the powers vested in the office. Indeed, a resulting vacancy by reason of resignation automatically operates the second paragraph of section 9, article X as “stopgap measure” for the continuity of the functions of the office. Moreover, in order to dispel any doubt on such constitutional succession, Mr Herrera called for a Convention on 16 March 2012 in which several stakeholders attended as observers, the ITUC–AP General Secretary endorsed Mr Herrera’s constitutional succession to the TUCP Presidency, and several other international and foreign union federations echoed international support for such succession.
17. 785. Despite all the developments and the exercise of the right of the TUCP-affiliated federations to elect its new set of officers, the BLR–DOLE still assumed the existence of controversy and negated the successfully conducted election. By taking action on a purported controversy without any complaint filed by interested parties, the BLR–DOLE committed flagrant violation of Convention No. 87 which guarantees full freedom in electing the workers’ representatives. The BLR–DOLE action restricted and restrained the exercise of TUCP’s right to elect its leaders and officers and amounts to interference. It is an impairment of TUCP’s trade union rights which unlawfully curtailed and negated the results of such convention and election. Indeed, it is calculated precisely to suppress the will of the majority of the workers who decided to elect the new leaders of the TUCP. In the complainant’s view, the Government has thus clearly and patently breached the guarantees of Convention No. 87.
18. 786. Secondly, the complainant alleges that the decision of the BLR–DOLE directing the observance of status quo ante and reversing the election of new officers during the Special Convention held on 16 March 2012, constitutes not only a restriction that is repugnant to freedom of association under ILO Convention No. 87 but also a mocking disrespect and derogation of the TUCP Constitution. The BLR–DOLE’s action in directing the parties to observe the status prior to the contested resignation blatantly disregarded not only the TUCP Constitution but also Convention No. 87 prohibiting restriction in electing their representatives. In a classic fashion of arbitrary, strained and strange interpretation, the BLR–DOLE administratively decided the controversy as follows: “Section 9, article X simply provides that in case of vacancy by reason of permanent disability, resignation or removal from office the General Secretary ‘shall succeed’ and not ‘to take the place’ the President to serve for the unexpired term. The phrase ‘to take the place’ which is used in the first paragraph of the section imparts immediacy without need of a process while the phrase ‘shall succeed’ in the second paragraph admits of a contrary sense. The variation cannot be overstretched to mean immediate assumption to the presidency on the stated effectiveness of the resignation. Well-settled is the rule that the power to accept or consent to removal or resignation of elective or appointive officials is vested in the holder of the power to elect or appoint said officials, which in this case is vested in the Convention. Necessarily, in the absence of express or implied delegation of the power to accept or consent to the removal or resignation of the President to the General Council or the Executive Board, resignation and succession to the Presidency can only be accepted or affirmed by the Convention, which is the supreme authority of the Center. It cannot be argued otherwise.”
19. 787. Reading together the resignation and the relevant provision of the TUCP Constitution, it is indubitable that with the resignation of Mr Mendoza, there is no additional action that must be done under the TUCP Constitution but for the General Secretary to automatically succeed after the date of its effectiveness on 1 November 2011. Neither the approval nor the consent of the National Executive Board or the General Council or even the Convention is necessary for the assumption by the General Secretary of the position of President after the resignation. The letter of resignation of Mr Mendoza (attached to the complaint) is concise, explicit and unequivocal. The aforequoted provision of the TUCP Constitution is clear, unmistakable, unambiguous, explicit and leaves no room for interpretation. It is self-explanatory that in the event of temporary or permanent absence of the President, the General Secretary shall assume, take the place or succeed the vacant position. Applying the logic of the order issued by the BLR–DOLE, there can be no instance that any resignation by the President can be effective considering that it must still be approved by the Convention. Neither can there be any valid resignation unless there is an election from among the members of the General Council to succeed the resigned officer. Precisely, section 9 of article X of the TUCP Constitution has foreseen such contingency which prompted the framers to expressly indicate the instances when the General Secretary shall assume the position of the President without further action or confirmation or election. The interpretation that there must be a process involved for the General Secretary to succeed the President in case of resignation goes against the basic precept of statutory construction that the express mention of one thing excludes all others. There is no interpretation needed for the operation of section 9, article X of the TUCP Constitution because it is explicit and self-explanatory, and self-executing. In the present case, considering that the General Secretary shall be succeeding “for the unexpired term” of the President, such assumption is automatic and immediate upon the effectiveness of such resignation. The requirement by BLR–DOLE of additional action or process (confirmation of the resignation by the Convention) is not only absent in the TUCP Constitution but also in direct violation of the express and clear provisions of section 9, article X of the TUCP Constitution as well as incongruent to the avowed purpose of maintaining continuity and stability in the functions and duties of the President and thus absurd.
20. 788. Furthermore, the BLR–DOLE has no authority to challenge the results of the election held on 16 March 2012 in the absence of a prejudiced party since no complaint was filed or submitted to it. It constituted undue and unjustified interference contrary to Convention No. 87. One of the findings of the BLR–DOLE is that the TUCP General Council meeting held on 7 March 2012, prior to the Special Convention of 16 March 2012, was not valid on the ground of lack of notice. However, assuming it is true, such ground is personal to the organization, and the BLR–DOLE has no jurisdiction to rule on lack of notice when the participating organizations have not raised such matter and were not objecting to the meeting. Also, as regards the finding that the Special Convention was not valid, when counting the TUCP labour federation members under the leadership of Mr Herrera, it definitively showed that Mr Herrera had the majority of members under him, namely 21 federations. It is therefore clear that with the participation of these federations, the Special Convention was valid and effective for purposes of electing its new leaders. Additionally, under Mr Herrera’s leadership, two new industry unions (the Philippines Land Transport Industry Union (PLTIU) and the BPO Workers Association of the Philippines (BWAP)) have joined the TUCP. PLTIU is the first land transport industry union in the Philippines, represents over 10,000 workers with collective bargaining agreements in the formal transport industry and some 70,000 workers in the informal transport sector, and includes 34 labour associations as its founding members. To date, the TUCP under Mr Herrera consists of a total of 46 national labour federations and workers associations, making it, unassailably, the most representative workers’ organization in the Philippines. More workers’ organizations and special groups will join the TUCP under Mr Herrera’s leadership.
21. 789. Thirdly, the complainant alleges that the decision of the BLR–DOLE unjustifiably restricts and restrains new and reactivated labour federations of the TUCP from participating in the election of officers and leaders. The finding that the new and reactivated member federations cannot be allowed to participate in the special convention called forth therein, clearly and unlawfully restrains and restricts the trade union in choosing their representatives in full freedom in violation of Convention No. 87. The BLR–DOLE invidiously discriminated against the new and re-activated organizations when it ruled that only the original members prior to the resignation can participate in the election of TUCP officers and leaders. Indeed, such discriminatory act is totally incongruent to the TUCP Constitution as well as Convention No. 87. In this case, the unfair and unreasonable discrimination of reactivated or new members as against the existing members would be impeding not only their right to join the organization of their own choosing but also violating the right of the TUCP to determine the conditions of eligibility pursuant to its Constitution. Moreover, the BLR–DOLE decision violated TUCP’s trade union rights when it disregarded the numerical majority which participated in the Special Convention and affirmatively showed majority support to President Herrera and to the elected officers of the TUCP.
22. 790. Fourthly and lastly, the complainant alleges that there is clear and premeditated action of the Government to split the TUCP into two groups without lawful authority and in blatant derogation of the TUCP Constitution, and that the Government violated Convention No. 87 when it identified and recognized in its official correspondence and activity two sets of TUCP. According to the complainant, there should be no distinction between TUCP and TUCP–ITUC because it is very clear that there is only one TUCP, which is affiliated with the ITUC and ITUC–AP. The Government has named eight persons as representing TUCP–ITUC and another eight as representing TUCP, two General Secretaries (Jose P. Umali for TUCP–ITUC and Gerard Seno for TUCP) and two Legal Counsels (Alejandro Villaviza and Arnel Dolendo). By doing this, the Government disregarded the fact that there is only one TUCP, registered in the DOLE, which is an ITUC affiliate for more than 30 years. ITUC recognizes only one TUCP of which the President is Ernesto F. Herrera. Moreover, in the complainant’s view, by submitting two sets of TUCP officers, the Government is not only misleading the ILC but also disregarding the order of BLR DOLE mandating the observance of status quo ante. Assuming such order is valid, by recognizing in its official correspondence even with the ILO Victorino Balais and Seno as President and General Secretary of the TUCP, respectively, the Government has disregarded its own order, since this amounts to relinquishment of Mr Mendoza’s position as President. Also, by promoting two TUCPs, the Government is fomenting confusion and disunity among the ranks of workers and thus impedes and restricts their organization of activities and formulation of programmes. This also creates the impression of bias and partiality thereby removing the requirement of an impartial procedure in the final settlement of the issues.
23. 791. The complainant concludes that, by interfering with such intra-union matters and privileges and promoting two sets of TUCP, the Government has flagrantly violated Convention No. 87, as this arbitrary act runs counter to the right of workers to freely elect their representatives.

B. The Government’s reply

1. 792. The Government indicates that on 26 January 2012, Mr Democrito T. Mendoza submitted to the BLR the following documents as part of TUCP’s reportorial obligations pursuant to section 1, rule V of the Rules Implementing Book V of the Labor Code, as amended by Department Order No. 40, series of 2003, as further amended: (i) new Set of Officers; (ii) statement of confirmation that Mr Democrito T. Mendoza remains the President of TUCP dated 24 January 2012; (iii) General Council Resolution 01-2012 dated 24 January 2012 entitled: “A Resolution of Confirmation of Continuing Support to Mr Democrito T. Mendoza as President of the TUCP”; and (iv) Minutes of the General Council Meeting dated 24 January 2012 on the “Election of Bro. Victorino F. Balais as General Secretary”.
2. 793. On 20 February 2012, Ernesto F. Herrera likewise submitted the following reportorial documents: (i) resignation letter of Mr Democrito T. Mendoza dated 19 October 2011; (ii) copy of 2007 TUCP Constitution and by-laws; (iii) excerpts from the 9 November 2011 TUCP Executive Board Meeting; (iv) TUCP Resolution creating the position of president emeritus for Mr Mendoza dated 9 November 2011; (v) factual narration on the current TUCP controversy; (vi) General Council Statement dated 27 January 2012; (vii) General Council Statement dated 3 February 2012; (viii) letters of membership reactivation of three unions; and (ix) letters of membership application of two unions.
3. 794. On 13 March 2012, BLR received another letter from Mr Mendoza with a list of purported new TUCP officers and a TUCP General Council Resolution declaring continued support for Mr Mendoza. In the same letter, the DOLE was notified by Mr Mendoza on the alleged expulsion of Mr Herrera and two other affiliate member organizations from the TUCP through a 7 March 2012 resolution of the Executive Board for violation of article VIII, section 4 of the TUCP Constitution which refers to betrayal, dishonesty and acts inimical to the interest of the organization. The General Council allegedly concurred in the resolution.
4. 795. On 16 March 2012, Mr Herrera convened a Special Convention of the TUCP where a new General Secretary was elected and new members were admitted to the organization.
5. 796. The Government states that, in view of the conflicting claims of Mr Mendoza and Mr Herrera to the labour centre’s presidency, the BLR conducted preventive conciliation–mediation conferences through the Single Entry Approach (SEnA), which led to arbitration proceedings.
6. 797. As regards the alleged direct and prejudicial interference and impairment of the right of the workers to elect their representative through the assumption of the intra-union controversy by the BLR–DOLE without any complaint, the Government stresses that the initial intervention of the BLR was to call for a conciliation–mediation conference under the SEnA, an assistance that does not need to be initiated by the parties themselves or through a complaint. It is voluntary on the part of either parties to participate, and merely an attempt to afford the parties a venue and a process to resolve their differences with a third party (DOLE) acting as facilitator. During the first conciliation conference conducted by the BLR on 28 March 2012, the parties were apprised of the proceedings and agreed that in case the conciliation–mediation proceedings would fail, arbitration proceedings pursuant to article 226 of the Labor Code, as amended, would commence to resolve the intra-union dispute. On 17 April 2012, during the second conciliation conference, the representative of Mr Mendoza moved to terminate the conciliation–mediation proceedings and commence arbitration proceedings. This is borne out by the enclosed minutes of the conferences. The Government points out that both parties submitted to the jurisdiction of the BLR and did not assail the same until after the BLR Order of 10 August 2012.
7. 798. The Government also highlights that, as set out in the BLR Order, the escalation of the claims and counter-claims to the TUCP leadership, with both Mr Mendoza and Mr Herrera claiming the presidency and each having his own General Secretary, resulted in frictions between the two groups not only at the enterprise level struggle to gain dominance over the other but also in the functioning of the different tripartite bodies in various government agencies where the TUCP sits as workers’ representative. There has been an exchange of recalls and objections with each group asserting to be the rightful representative of the TUCP in the government tripartite bodies. The division has created uncertainty on TUCP’s representativeness. The subject controversy, given the recognized active engagement of the labour centre in social, political and economic concerns, has national implications thus compelling the BLR to intervene, pursuant to article 226 of the Labor Code, as amended, for a workable way forward to break the impasse. This intervention also becomes necessary as a requirement towards judicial determination, which can be triggered only through the article 226 proceedings and is permissible in cases of internal conflict.
8. 799. The Government believes that, contrary to the alleged impairment of the workers’ right to elect their representatives, BLR’s ruling has in fact recognized the supremacy of the general membership on matters relating to the leadership, policies and major decisions of the organization, and held that the conflicting claims should be put to vote through secret balloting by the TUCP membership in a Special Convention duly called for the purpose. This is in the interest of fair play and of finally putting a closure to the leadership issue. Moreover, in a Resolution dated 28 May 2013 issued by the Office of the Secretary affirming the BLR Order, it was held that the controversy is an intra-union dispute involving the main pillars of the TUCP, thus, the logical arbiters for its conclusion are the members themselves through a duly conducted election. The conduct of secret balloting is a time-tested impartial and most democratic procedure, which is in accord with the principles of freedom of association under Convention No. 87 and will afford the TUCP members an opportunity to decide and exercise their sovereign will on the leadership issue.
9. 800. Secondly, concerning the alleged disrespect and derogation of the TUCP Constitution through the BLR–DOLE decision directing the observance of the status quo ante and reversing the election of new TUCP officers during the Special Convention on 16 March 2012, the Government states that the constitution and by-laws of a union governs the relationship between and among the members of the union, define the rights, duties and obligations, powers, functions and authority of the officers and members, and determine the validity of acts done by any union officer or member. Section 9(2), article X of the 2007 TUCP Constitution enunciates the rule on succession in the event of a vacancy brought about by the enumerated conditions and nothing more, which compels the BLR to look into the resignation of Mr Mendoza as TUCP president and the claimed withdrawal of the same to establish the existence or non-existence of the vacancy in the presidency. The TUCP Constitution is silent on acceptance or withdrawal of resignation of its officers. It is on this premise that Mr Herrera argues that acceptance of the resignation is not required to make it effective. A scrutiny of the TUCP Constitution’s wording, however, shows no indication or inference of immediate effectiveness of any resignation.
10. 801. However, the Government indicates that section 9 of article X cannot obliviously be read as a stand-alone provision under the circumstances, which brought the organization to its present divided state with each group claiming to be the rightful officers. It was held that an unambiguous provision cannot be made to take effect without having to consider TUCP’s principle of fostering a strong unified National Labor Center and developmental unionism. The spirit and purpose of the TUCP CBL has to be given meaning in its entirety and has to be read through in every provision. For it is settled principle in statutory construction that when the exact and literal import of a provision would lead to absurd or mischievous consequences, or would thwart or contravene the manifest purpose of the law, it should be construed according to its spirit and reason, disregarding or modifying so far as may be necessary, the strict letter of the law. Given the conflicting claims to the TUCP leadership, section 9 of article X has to be read in relation to the provisions of articles V to IX of the TUCP CBL which provides for the conduct of election in the event of vacancy in the positions of elected members of the Executive Board by reason of removal from office, resignation, permanent disability, failure to quality, or death. It also proclaims the Convention as the supreme authority followed by the General Council and the Executive Board. This is where the BLR Order took off when it ruled that the conflicting claims should be put to vote through secret balloting by the TUCP membership in a Special Convention duly called for the purpose.
11. 802. Thirdly, with respect to the alleged unjustifiable restriction of new and reactivated labour federations of the TUCP from participating in the election of officers and leaders, the Government indicates that the BLR–DOLE Order directs the observance of status quo ante or the status prior to the contested resignation. Based on BLR records, there were 28 established member organizations of TUCP prior to the controversy. The claim that NUBE, NLU, PAFLU and NFL should be included considering that they were merely on an inactive status could not be sustained, since, prior to the controversy, both parties, being the incumbent officers, ceased to report said federations as member organizations of the TUCP, these federations did not question their non-inclusion in TUCP’s reportorial documents submitted to the BLR, and thus, both parties, in the performance of their duties as officers of TUCP, logically conceded that said federations are no longer TUCP members.
12. 803. Moreover, the Government states that the Special Convention of 16 March 2012 referred to by Mr Herrera could not be considered as duly held, since no due notice was sent to all member organizations. This led to a situation where, while a considerable number of member organizations were not able to attend by reason of lack of notice, non-member organizations participated in the deliberations without prior confirmation of their membership by the Executive Board in line with the provisions of section 4(b), article VIII in relation to sections 1, 2, and 3, article III of the TUCP Constitution. Thus, all proceedings that transpired during the Special Convention were deemed to have no binding effect on the entire TUCP membership.
13. 804. Fourthly and lastly, as to the alleged premeditated action to split the TUCP into two groups in blatant derogation of the TUCP Constitution, the Government emphasizes that it does not take sides in the internal conflict within the TUCP and deals at arm’s length with both groups until after the final determination of the leadership of the TUCP by the members themselves pursuant to its Constitution. Indeed, there is only one TUCP, and, pursuant to section 1, article V of its Constitution, the TUCP is founded on the principle that the members are above the officers, and the officers’ authority, even their tenure in office, as well as the policy and major decision of the organization, are all passed upon by the membership through the Convention. Thus, to recognize a set of leaders through a mere reading of section 9 of article X alone, which definitely would not resolve the controversy, would run roughshod over the provision of section 1 of article V. Lastly, according to the Government, the names of the delegates and advisers for the Government, Employer and Workers’ sector reflected in the form for credentials of delegations for the 102nd Session of the 2013 ILC were based on the information provided by each participating organization. The DOLE, through the ILAB, relied in good faith on the representations, statements and information given by the nominating organizations and groups. Moreover, the DOLE Resolution affirming the BLR–DOLE Order of 10 August 2012 was issued only on 28 May 2013, whereas the submission to the Credentials Committee was made on 20 May 2013. Thus, corrections were made subsequently pursuant to the Resolution of 28 May 2013, that is, on the premise of the status quo ante where Mr Herrera is still TUCP General Secretary.

C. The Committee’s conclusions

1. 805. The Committee notes that, in the present case, the complainant organization alleges that the Government interfered with the right of workers to elect freely their representatives by reversing the results of the elections of its officers. The Committee notes, in particular, the complainant’s allegations that: (i) TUCP President, Democrito T. Mendoza submitted on 19 October 2011 a letter of resignation declaring that he resigned effective 1 November 2011, resignation which, in the absence of withdrawal, was approved on 9 November 2011 by the Executive Board; (ii) in accordance with section 9, paragraph 2, article X, of the TUCP Constitution, TUCP General Secretary, Ernesto F. Herrera succeeded Mr Mendoza and started discharging his duties as TUCP President; (iii) in January 2012, Mr Mendoza, pretending to still be TUCP President: (a) called for a General Council meeting on the same day as Mr Herrera; (b) convened a non-valid meeting which appointed TUCP Vice President Victorino Balais as General Secretary; and (c) allegedly instructed his group to take physical occupancy of the TUCP headquarters; (iv) after the approval of a Special Convention by the General Council and the submission of formal notices to affiliates, the Special Convention took place on 16 March 2012, with the participation of all 16 original TUCP federations and ten reactivated or new federations; many foreign and international unions expressed support for Mr Herrera; the Convention elected 23 officers to the TUCP Executive Board and adopted amendments to the TUCP Constitution and a perpetual ban on Mr Mendoza and his group; (v) the BLR–DOLE initiated in April 2012 motu proprio a case entitled “Intra Union Dispute at the Trade Union Congress of the Philippines (TUCP)”, and issued, on 10 August 2012, a decision directing the observance of status quo ante (status prior to the contested resignation) pending the conduct of an election of a new set of TUCP officers; (vi) the decision was appealed by Mr Herrera to the Office of the Secretary of the DOLE pursuant to rule XI, section 16 of Department Order No. 40-03, series of 2003, as amended; (vii) in December 2012, in violation of the decision of the BLR–DOLE, Mr Mendoza’s group called for a Convention, where Mr Mendoza relinquished his position, leading to the election of Victorino Balais as president; (viii) in its official correspondence of May 2013, the BLR–DOLE has unlawfully split the organization into two TUCP’s (the TUCP–ITUC being represented by Mr Herrera and the TUCP being represented by Victorino Balais), and the preliminary list of delegates submitted by the Government to the 2013 ILC included names and positions that had not been submitted by Mr Herrera.
2. 806. The Committee notes that the complainant therefore believes that the Government committed serious violations of trade union rights protected under Convention No. 87. In the complainant’s view, the assumption of intra-union controversy initiated solely by the BLR–DOLE despite all the developments (Special Convention with election of officers) and without any complaint filed by interested parties amounted to direct and prejudicial interference and impairment of the rights of the workers to elect their representatives, and the decision of the BLR–DOLE directing the observance of status quo ante and reversing the election of new officers during the Special Convention violates both Convention No. 87 and the TUCP Constitution. Moreover, according to the complainant, the action of the Government to unlawfully split the TUCP into two groups in violation of the TUCP Constitution, is fomenting confusion and disunity among the ranks of workers and creates the impression of bias and partiality.
3. 807. The Committee also notes the information provided by the Government according to which: (i) in view of the divergent documents submitted to the BLR and the conflicting claims of Mr Mendoza and Mr Herrera to the TUCP presidency, the BLR conducted preventive conciliation–mediation conferences through the SEnA, which eventually led to arbitration proceedings; (ii) the BLR was compelled to intervene to find a way forward to break the impasse because the escalation of the claims and counter-claims to the TUCP leadership has created uncertainty on TUCP’s representativeness and had resulted in frictions between the two groups not only at the enterprise level but also in the functioning of the different tripartite bodies in various government agencies where the TUCP sits as workers’ representative, and because the article 226 proceedings can trigger a judicial determination; (iii) the initial intervention of the BLR was to call for a conciliation mediation conference with a third party (DOLE) acting as facilitator (an assistance that does not need to be initiated by the parties themselves or through a complaint and where the participation of the parties is voluntary); (iv) during the first conciliation conference conducted by the BLR on 28 March 2012, the parties were apprised of the proceedings and agreed that in case that the conciliation–mediation proceedings would fail, arbitration proceedings pursuant to article 226 of the Labor Code as amended and its Implementing Rules as amended by Department Order No. 40 of 2003, would commence to resolve the intra-union dispute; (v) on 17 April 2012, during the second conciliation conference, the representative of Mr Mendoza moved to terminate the conciliation–mediation proceedings and commence arbitration proceedings; (vi) contrary to the alleged impairment of the workers’ right to elect their representatives, the BLR decision recognizes the supremacy of the general membership on matters relating to the leadership and major decisions of the organization, since, after construing the TUCP Constitution according to its spirit and purpose and considering that the Special Convention had not been valid, it holds that the conflicting claims of the intra-union dispute should be put to vote through secret balloting by the TUCP membership in a Special Convention duly called for the purpose, i.e. a fair, impartial and democratic procedure; (vii) on 28 May 2013, a DOLE Resolution affirmed the BLR–DOLE decision of 10 August 2012, which had been appealed by the complainant, and declared the convention called by Mr Mendoza in December 2012 as invalid due to violation of the BLR–DOLE decision; (viii) as to the alleged premeditated action to split the TUCP into two groups, the Government does not take sides in the internal conflict within the TUCP and deals at arm’s length with both groups until after the final determination of the leadership of the TUCP by the members themselves pursuant to its Constitution; and (ix) the names reflected in the form for credentials of delegations for the 2013 ILC were based on the information provided by each participating organization and were submitted to the Credentials Committee on 20 May 2013 (i.e. before the issuance of the DOLE Resolution), which subsequently led to corrections being made on the premise of the status quo ante where Mr Herrera was still TUCP General Secretary. The Committee also notes that the 2013 ILC Credentials Committee examined an objection filed by Mr Herrera concerning the nomination of a Workers’ adviser and expected that the internal conflict within the TUCP which is in process of being resolved nationally will be definitively resolved in the near future.
4. 808. The Committee observes that the present case relates to a conflict within a trade union organization. The Committee wishes to recall, from the outset, that it is not competent to make recommendations on internal dissentions within a trade union organization, so long as the Government did not intervene in a manner which might affect the exercise of trade union rights and the normal functioning of an organization [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 1114]. In this regard, the Committee observes that the complainant organization alleges interference by the public authorities in the internal affairs of the trade union organization. The Committee will therefore limit its examination to this aspect of the case.
5. 809. As to the initiation by the Government of the dispute resolution proceedings without any complaint, the Committee observes that, according to the Government, the Government (BLR) initiated, as a first step, conciliation–mediation proceedings, which had been rendered necessary by the implications of the intra-union dispute both at the enterprise level and at national level, and in which the parties were free to participate or not. In this connection, the Committee recalls that, in cases of internal dissentions, it has invited governments to persevere with their efforts, in consultation with the organizations concerned, to put in place as soon as possible impartial procedures to enable the workers concerned freely to choose their representatives [see Digest, op. cit., para. 1120]. The Committee further notes that, according to the Government, the failure of the conciliation mediation proceedings led to arbitration proceedings. It observes that the arbitrator in this case was appointed by the administrative authority (DOLE). The Committee recalls that, in cases of internal conflict, it has previously pointed out that judicial intervention would permit a clarification of the situation from the legal point of view for the purpose of settling questions concerning the management and representation of the trade union federation concerned; and that another possible means of settlement would be to appoint an independent arbitrator to be agreed on by the parties concerned, to seek a joint solution to existing problems and, if necessary, to hold new elections [see Digest, op. cit., para. 1124]. In this regard, the Committee observes that, while the BLR–DOLE decision and the Government’s reply state that both parties agreed at the first conciliation conference that, in the event of failure of the conciliation–mediation process, arbitration proceedings should commence to resolve the intra-union dispute, the complainant is silent on this matter and views the issuance of the BLR–DOLE decision as government interference.
6. 810. With respect to the substance of the BLR–DOLE decision of 10 August 2012 directing the observance of the status quo ante pending the conduct of elections of new officers, the Committee reiterates that it has no competence to examine the merits of disputes within the various tendencies of a trade union. The Committee observes that the first judicial determination in the intra-union conflict occurred almost two years after Mr Mendoza’s resignation letter, following a judicial appeal lodged by the complainant, through the issuance by the Court of Appeals in September 2013 of an injunction in favour of Mr Herrera and against the BLR–DOLE decision as affirmed by the DOLE (temporary restraining order (TRO)).
7. 811. Furthermore, the Committee notes that, on 7 October 2013, the Court of Appeals issued a decision declaring that: (i) the BLR erred in holding that acceptance is necessary in order to make Mr Mendoza’s resignation effective and that the vacancy created by the resignation must be submitted to the consent or acceptance of TUCP’s general membership, given that this is clearly unwarranted by the express provisions of the TUCP constitution; (ii) Mr Herrera succeeded Mr Mendoza as TUCP president as he validly assumed the vacated position of President due to the resignation of Mr Mendoza; (iii) the BLR committed grave abuse of discretion in issuing the status quo ante order, and the BLR Order of 10 August 2012 is therefore annulled and set aside insofar as it relates to the issuance of the status quo ante order and the creation of an independent committee for the conduct of election of officers; (iv) Mr Herrera holds the position as TUCP President in a hold-over capacity until the general membership convenes and elects a new set of officers (the same is valid for the elective officers of the Board at the time of Mr Mendoza’s resignation; Mr Herrera is, however, empowered to replace the appointive officers; the General Council may fill the vacant position of General Secretary; in the meantime, the President may appoint an Assistant General Secretary who may act as such); (v) the Special Convention of 16 March 2012 held by Mr Herrera, and thus the election of Mr Umali as General Secretary, are not valid for lack of evidence (for example, as to the members of the General Council, the total number of TUCP affiliates, the number of unions attending the Special Convention, etc.), and the BLR Order is therefore affirmed insofar as it relates to this matter; and (vi) for the purpose of ascertaining the composition of the General Council (especially the heads of the affiliated organizations), the BLR is directed to make a determination as to who are the member organizations of the TUCP, and Mr Herrera is directed to submit an updated list of member unions together with supporting documents to the BLR. The Committee requests the Government and the complainant to keep it informed as to the manner in which the Court of Appeals decision has been, and is being, applied. Furthermore, the Committee understands that, on 25 October 2013: (i) the complainant has filed a motion for partial reconsideration requesting that Mr Umali retain his position as General Secretary; and (ii) the Mendoza group has filed a motion for reconsideration against the Court of Appeals decision. The Committee also requests the Government to keep it informed of the judicial developments in relation to the motions for reconsideration filed by the parties, and firmly expects that the judicial proceedings will result in the final resolution of the TUPC leadership dispute in the very near future.
8. 812. Lastly, as regards the allegations that the Government may have acted to split the TUCP into two groups as reflected in the official correspondence and the submitted form for credentials of delegations for the 102nd Session of the ILC 2013, the Committee notes the consideration of the 2013 ILC Credentials Committee that the Government did not appear to have taken sides between the Mendoza group and the Herrera group as it nominated one Workers’ adviser from both sides and the Workers’ delegate from the ranks of another organization. Considering that, pending the resolution of the conflict, the Government attempted to deal, in terms of official correspondence and nominations to the ILC, with both factions in the same manner, the Committee will not pursue the examination of this specific allegation.