Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 358, Noviembre 2010

1. 827. The complaint is set out in a communication dated 19 May 2009 from the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Association (IUF), and in a communication dated 7 July 2009 from the National Union of Workers in the Hotel, Restaurant, and Allied Industries (NUWHRAIN) – Dusit Hotel Nikko Chapter, supported by the Alliance of Progressive Labor, Bukluran ng Manggagawang Pilipino, the Confederation of Independent Unions in the Public Sector, Manggagawa para sa Kalayaan ng Bayan, the National Labor Union, Partido ng Manggagawa, the Public Services Labor Independent Confederation, the Alliance of Coca-Cola Unions of the Philippines, the Automotive Industry Workers Alliance, the League of Independent Bank Organization, the National Alliance of Broadcast Unions, the Postal Employees Union of the Philippines, Pinag-isang Tinig at Lakas ng Anak Pawis, the Philippine Metalworkers Alliance, and the Workers Solidarity Network.
2. 828. The Government submitted partial observations in a communication dated 15 January 2010.
3. 829. The Philippines has ratified the Freedom of Association and Protection of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 830. In their communications dated 19 May and 7 July 2009, the complainant organizations refer to a decision of the Supreme Court of the Philippines rendered on 11 November 2008, concerning the dismissal of 90 employees of the Dusit Hotel Nikko, all of whom were members or officers of the NUWHRAIN – Dusit Hotel Nikko Chapter. The events leading up to the Court’s decision began on 24 October 2000, when the NUWHRAIN –Dusit Hotel Nikko Chapter submitted its proposed collective bargaining agreement to the hotel management, as it had done regularly since 1978. However, the parties were unable to reach an agreement and, on 20 December 2001, the union filed a notice of strike with the National Conciliation and Mediation Board (NCMB). After the NCMB failed in its attempts to resolve the deadlock, on 14 January 2002, union members voted to go on strike. On 17 January 2002, several male union members, with their hair closely cropped, attended the union’s general membership assembly in the union’s office, located in the basement of the hotel. The next day, other male union members reported for work with hair that was either similarly cropped or completely shaved. Acting on instructions from the hotel’s management, hotel security guards prevented these men from entering the hotel premises, declaring that they have violated the hotel’s grooming standards. As a result, the workers believed that they had been illegally locked out and began to picket the hotel. Other members joined the picket after they were also prevented from entering the hotel’s premises. Because of the high number of employees who had been prevented from working, the hotel was forced to temporarily suspend operation of three of its restaurants. On 20 January 2002, the hotel issued notices of preventive suspension to more than 200 trade union officers and members, including women, who had not altered their hairstyles, charging them with violations of their duty to bargain in good faith, violations of the hotel’s grooming standards, participation in an illegal picket, participation in an illegal strike and the commission of illegal acts during an illegal strike. On the next day, 21 January 2002, the union filed a second notice of strike on the basis of unfair labour practice, alleging an illegal lockout in violation of article 248(a) of the Labor Code. While continuing its picket outside the hotel, the union members submitted responses to the hotel’s charges.
2. 831. On 26 January 2002, the hotel dismissed 29 union officers and 61 union members. The hotel also suspended 81 employees for 30 days, 48 employees for 15 days, four employees for ten days, and three employees for five days. The union declared and staged a strike on the same day, and continued to picket the hotel premises. On 31 January 2002, the union filed a third notice of strike, alleging unfair labour practices. The union argued that its officers and members did not stage a strike on 18 January 2002 because, on this day, they actually reported for work but were prevented by the hotel’s security guards from working. Under the legislation, there is a strike when the temporary work stoppage was caused by the workers’ concerted refusal to work. The hotel argued that the union members staged a strike on 18 January 2002 because the shaving of heads amounted to a strike as it forced the hotel to prevent the workers from working. Moreover, that strike was an illegal strike because the shaving of heads was done during the 30-day-cooling-off period and was in violation of the no strike clause of the collective agreement. The union counter-argued that the shaving of heads did not violate any law and that there could not be an illegal strike when there was no strike to speak of in the first place. On the same day (31 January 2002), a Secretary of Labor and Employment assumed jurisdiction over the dispute, certified the dispute to the National Labor Relations Commission (NLRC) for compulsory arbitration, and issued a return-to-work order, giving the hotel the option of reinstating the terminated and suspended employees onto the payroll due to the “special circumstances attendant to their reinstatement”.
3. 832. On 1 February 2002, the hotel exercised this option, directing some of the employees to return to work, while others were only reinstated onto the payroll. In response, on 15 March 2002, the union filed a motion for reconsideration of the order, which the Secretary of Labor and Employment denied. After this denial, the union filed a petition for certiorari before the Court of Appeals, contesting the payroll reinstatement option granted by the Secretary of Labor and Employment on the grounds that the option violated article 263(g) of the Labor Code, which requires the readmission of strikers “under the same terms and conditions prevailing before the strike or lockout”. The union argued that actual reinstatement should have been enforced, and that payroll reinstatement was insufficient.
4. 833. The Court of Appeals dismissed the union’s petition, which prompted the union to file a petition to the Supreme Court, in which it questioned whether the Secretary of Labor and Employment had the discretion to order a payroll reinstatement in lieu of actual reinstatement.
5. 834. On 9 October 2002, the NLRC rendered its decision on the case, resolving virtually all unresolved issues with regard to the collective agreement in favour of the hotel, declaring the union members’ haircuts as “amounting to a strike”, declaring the “strike” illegal for alleged violations of the “30-day-cooling off period”, the seven-day strike ban, and the “no strike” provision of the collective agreement. The NLRC further declared that, even if the procedural rules had been followed, the strike would still have been illegal because of the illegal acts committed by the union members. It therefore upheld the dismissal of 29 union officers for leading an illegal strike on 18 January 2002, upheld the dismissal of 61 union members for committing illegal acts (obstructing of ingress to and egress from the hotel) and upheld the suspension of 136 union members.
6. 835. On 7 February 2003, the NLRC denied the union’s motion for reconsideration. The union petitioned the Court of Appeals for certiorari, contending that the NLRC had committed a grave abuse of discretion. On 19 January 2004, the Court of Appeals dismissed this petition. The union then filed a petition for certiorari to review the decision of the Court of Appeals with the Supreme Court. On 11 November 2008, the Supreme Court issued its ruling on both petitions.
7. 836. The Supreme Court held that the concerted action of trade union members and officers to shave their heads constituted an unprotected activity and a just cause for the dismissal of the union officers, because such an action: (1) would embarrass the hotel; (2) defied the hotel’s authority to enforce its grooming standards; (3) suggested something was amiss; (4) insinuated that something out of the ordinary was afoot; (5) was coercive in nature, as it pressured the hotel to give in to the union’s demands; and (6) constituted an illegal strike. The Supreme Court therefore upheld the dismissal of the 29 union officers for participating in an illegal strike on 18 January 2002. Regarding the 61 union members, the Court considered that the hotel failed to identify anyone of them to have committed illegal acts and therefore ordered their reinstatement. However, the Court also gave the hotel the option of terminating the workers’ employment if they had already been replaced.
8. 837. According to the complainants, the conduct of the union members and officers did not constitute a violation of the hotel’s grooming standards, which require only that a male employee’s hair not touch his collar or obstruct either of his ears. The cropping or shaving of the employees’ hair could not have violated either of these requirements. Furthermore, complainants suggest that, even if the union officers did violate the hotel’s grooming standards, the maximum penalty the hotel could have imposed on the officers was an oral reprimand. The hotel’s own rules could not justify the dismissal of all 29 union officers. Moreover, despite the centrality of the grooming standards’ specifications to the outcome of the case, the Supreme Court did not reproduce or consider the specifics of the grooming standards in its opinion, or explain why it sustained the dismissal of nine female union officers who did not alter their physical appearances.
9. 838. The complainants further consider that the 90 union officers and members could not be justly dismissed because they purportedly embarrassed the hotel. The right of workers to engage in concerted actions or even in actual strikes and pickets cannot be denied protection because its exercise would be “embarrassing” to the employer. The right to self-organization or freedom of association was intended to further the rights and interest of labour and not to praise or flatter the employer. Likewise, the workers’ right to engage in concerted actions, pickets and strikes cannot be denied protection because such actions defy the hotel’s authority or because such actions “suggest something is amiss or that something out of the ordinary is afoot”. Workers have the right to communicate the facts of the labour dispute and to express their sentiment or displeasure by shaving their heads. Through that, workers exercise their freedom of expression. The complainants characterize the Supreme Court’s decision as an expansion of the legal definition of “strike” to include peaceful modes of speech or expression which are allegedly detrimental to the employer’s reputation. The complainants argue that this definitional expansion, if it becomes binding law in the Philippines, would constitute a violation of Convention No. 87. The complainants further state the workers’ shaving of heads cannot be denied protection just because of its coercive nature. Work stoppage, strikes and pickets are coercive in nature, yet these economic weapons are lawful.
10. 839. The complainants challenge the Court’s designation of the employees’ actions as a strike on the grounds that the employees were prevented from reporting for work by hotel security and then preventively suspended. The dismissed employees could not have refused to work or go on strike, as they were deprived of the opportunity to choose to work in the first place. In dismissing the workers, the hotel prevented them from striking. The complainants claim that the Supreme Court did not challenge these facts, but failed to address this alleged contradiction in its reasoning.
11. 840. With respect to 61 trade union members, the complainants indicate that the Court ordered their reinstatement without back wages and gave the hotel the option to terminate their employment if a replacement for these workers had been found. According to the complainants, it was certain that the hotel would exercise this option because, after more than seven years, all of the workers had been replaced. The complainants point out that the dismissal of all officers and members meant the union’s demise. In this respect, the complainants indicate that, shortly after the dismissals, the hotel management encouraged the establishment and eventual certification of an organization called Dusit Hotel Employees Labor Union. The complainant argues that this demonstrates that the hotel’s true intentions in dismissing the union members and officers was to eliminate the legal collective bargaining agent for the hotel employees, the NUWHRAIN – Dusit Hotel Nikko Chapter, which had been the certified collective bargaining agent for employees since 1978.

B. The Government’s reply

1. 841. In its communication of 15 January 2010, the Government indicates that a high-level ILO mission, which was carried out on 22–29 September 2009, identified four areas for future action on Convention No. 87 in the Philippines, including: (1) a three- to four-year technical cooperation programme (TCP) on training and capacity building to strengthen labour market governance; (2) the potential establishment of a high-level tripartite, inter-agency monitoring body for alleged trade union rights violations; (3) proposed legislative amendments to certain Labor Code provisions; and (4) the resolution of long-standing Committee on Freedom of Association cases through innovative approaches, and the resolution of active cases pertaining to alleged extra-judicial killings and the militarization of economic zones.
2. 842. The Government notes that plans for a three- to four-year TCP have already been subjected to a multi-stakeholder review and are currently being finalized. Pending implementation of the TCP, the Government and the ILO have initiated a short-term awareness programme on the principles of freedom of association, the first manifestation of which was a three-day National Tripartite Conference on Principles of Freedom of Association. As a result of the Conference, the social partners signed joint statements with the Armed Forces of the Philippines, the Philippine National Police (PNP), and the Philippine Economic Zone Authority. Two additional regional conferences were slated to take place before the end of March 2010.
3. 843. In relation to the proposed legislative reforms, the Government reports that the Executive Branch has drafted two bills, which are currently undergoing tripartite consultations for submission to the National Tripartite Industrial Peace Council, in preparation for their submission to appropriate committees of both Houses of the 15th Congress. The first bill seeks to amend article 263(g) of the Labor Code, by limiting the circumstances under which the Secretary of Labor and Employment and the President can assume jurisdiction over labour disputes to disputes which affect the provision of services the ILO defines as “essential”. The second bill incorporates amendments that liberalize the exercise of trade union rights, repeal the requirement of prior authorization for receipt of foreign assistance, and remove criminal sanctions as a penalty for participation in illegal strikes on the grounds of non-compliance with administrative requirements. Additionally, the Government reports that the Executive Branch will implement the following interim administrative measures: (1) the creation of joint guidelines on the conduct of PNP personnel and private security guards during strikes and lockouts, effective March 2010; and (2) revised department order No. 40, series of 2003, which will necessitate the fulfilment of procedural requirements prior to the Secretary of Labor’s assumption of jurisdiction over labour disputes.
4. 844. The Government indicates that, as concerns the Dusit Hotel’s dismissal of 29 union officers and reinstatement of 61 union members, the Supreme Court’s decision of 11 November 2008 responded to the issues raised in connection with the claimed expansion of the definition of “strike” in violation of Convention No. 87. This decision is final and executory.
5. 845. The Government indicates that the ILO mission met with the relevant parties and was provided with information pertaining to the case. The mission also met with the Chief Justice of the Supreme Court, who communicated to the mission that the Court’s interpretation in the Dusit case did not only concern the workers’ haircuts, but was also related to the violence committed by the workers during the course of their actions. According to the Chief Justice, the Court’s decision hinged on the workers’ violations of the law and the collective bargaining agreement, and that, as a result, the workers’ freedom of expression could be lawfully suppressed.
6. 846. The Government indicates that the mission suggested conciliating the dispute towards a solution such as reinstatement of the workers in another service. In response to this suggestion, the Government representatives have met with the relevant parties and have commenced exploratory talks on possible “out-of-the-box” solutions to the conflict. The Government further indicates that it will submit progress reports to the ILO on developments in the case.

C. The Committee’s conclusions

1. 847. The Committee notes that the complainant organizations, the IUF and the NUWHRAIN – Dusit Hotel Nikko Chapter contest a decision by the Supreme Court of the Philippines concerning alleged anti-union dismissals in the context of a labour dispute, whereby it held that workers who shaved or cropped their hair had engaged in an unprotected illegal strike, thus confirming the dismissal of 29 trade union officers and allowing the dismissal of 61 additional trade union members, in violation of the principles of freedom of association.
2. 848. The Committee notes the Government’s indication that the Supreme Court’s decision is final and executory. The Government indicates that, while it has no authority to alter this decision, it has met with the relevant parties and has commenced exploratory talks on possible “out-of-the-box” solutions to the conflict.
3. 849. The Committee notes that the specific allegations in this case have been examined by the national judiciary, including the Supreme Court, which has rendered a final decision. In this respect and at the outset, the Committee wishes to emphasize that it is not taking a position as to whether the interpretation of the national legislation by the courts is founded in light of the particular circumstances of this case. The mandate of the Committee consists in determining whether any given legislation or practice complies with the principles of freedom of association and collective bargaining laid down in the relevant Conventions. [See Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 6].
4. 850. The Committee notes the events which led to the 11 November 2008 decision of the Supreme Court, as they appear in the Court’s decision, a copy of which was provided by the complainants. On 24 October 2000, the union submitted its collective bargaining agreement negotiation proposals to the hotel. Negotiations ensued, but the parties failed to agree on mutually acceptable terms and conditions. On 20 December 2001, the union filed a notice of strike on the ground of the bargaining deadlock with the NCMB. As conciliation hearings were unsuccessful, on 14 January 2002, a strike vote was conducted and a decision to go on strike adopted. On 18 January 2002, a number of union members came to work with closely cropped hair or shaved heads. The hotel prevented these workers from entering the premises claiming that they violated the hotel’s grooming standards. In view of the hotel’s action, the union staged a picket outside the hotel premises. Later, other workers were also prevented from entering the hotel causing them to join the picket. Experiencing lack of manpower, the hotel had temporarily ceased operations in three restaurants.
5. 851. On 20 January 2002, the hotel issued notices to union members, preventively suspending them and charging them with the following offences: (1) violation of the duty to bargain in good faith; (2) illegal picket; (3) unfair labour practice; (4) violation of the hotel’s grooming standards; (5) illegal strike; and (6) commission of illegal acts during the illegal strike. The next day, the union filed a second notice of strike on the ground of unfair labour practice and violation of a legislative provision on illegal lockout. On 26 January 2002, the hotel terminated the services of 29 union officers and 61 trade union members; and suspended 81 employees for 30 days, 48 employees for 15 days, four employees for ten days and three employees for five days.
6. 852. On 31 January 2002, the union filed a third notice of strike, while continuing picketing the hotel. On the same day, the Secretary of Labor and Employment assumed jurisdiction over the labour dispute and certified the case for compulsory arbitration by the NLRC. Pending the outcome of the arbitration, the Secretary issued a return-to-work order but gave the hotel an option to reinstate the dismissed and suspended workers in the payroll in lieu of actual reinstatement, which the hotel exercised. On 15 March 2002, the union filed a motion for reconsideration of the order. On the same day, the Secretary of Labor and Employment dismissed the motion. The union filed a petition for certiorari before the Court of Appeals contesting the payroll reinstatement option. In its 6 May 2004 decision, the Court of Appeals affirmed the decisions of the Secretary of Labor and Employment.
7. 853. In its decision issued on 9 October 2002, the NLRC held that the 18 January 2002 concerted action was an illegal strike in which illegal acts were committed by the union and that the strike violated “no strike, no lockout” provision in the collective agreement and thereby caused the dismissal of 29 trade union officers and its 61 members. The NLRC explained that the strike which occurred on 18 January 2002 was illegal because it failed to comply with the mandatory 30-day cooling-off period and the seven-day strike ban, as the strike occurred 29 days after the submission of the strike notice on 20 December 2001 and four days after the submission of the strike vote on 14 January 2002. According to the NLRC, even if the union had complied with the temporal requirements mandated by law, the strike would nonetheless be declared illegal because of the illegal acts committed by the union officers and members. On 19 January 2004, the Court of Appeals affirmed the ruling of the NLRC. The union petitioned the Supreme Court.
8. 854. The Committee notes that on 11 November 2008, the Supreme Court issued its ruling, examined below. The Committee further notes that a high-level ILO mission visited the country in September 2009 and met with the relevant parties, including the Chief Justice of the Supreme Court.
9. 855. The Committee notes that the union’s petitions basically raise the following issues: (1) whether the Secretary of Labor and Employment has discretion to impose payroll reinstatement when he or she assumes jurisdiction over labour disputes, rather than simply full reinstatement; and (2) whether on 18 January 2002, by reporting to work with shaved or cropped hairstyle and subsequently picketing the hotel premises, trade union officers and members conducted an illegal strike and therefore could be validly dismissed for that reason.
10. 856. The Committee notes the relevant passages of the decision. In particular, with regard to the question whether the Secretary of Labor and Employment can impose “payroll” reinstatement instead of “actual” reinstatement, the Court reasons as follows:
11. Thus …, in assumption of jurisdiction cases, the Secretary should impose actual reinstatement in accordance with the intent and spirit of article 263(g) of the Labor Code. As with most rules, however, this one is subject to exceptions.
12. …
13. The peculiar circumstances in the present case validate the Secretary’s decision to order payroll reinstatement instead of actual reinstatement. It is obviously impracticable for the hotel to actually reinstate the employees who shaved their heads or cropped their hair because this was exactly the reason they were prevented from working in the first place. Further, as with most labor disputes which have resulted in strikes, there is mutual antagonism, enmity, and animosity between the union and the management. Payroll reinstatement, most especially in this case, would have been the only avenue where further incidents and damages could be avoided. Public officials entrusted with specific jurisdictions enjoy great confidence from this Court. The Secretary surely meant only to ensure industrial peace as she assumed jurisdiction over the labor dispute. In this case, we are not ready to substitute our own findings in the absence of a clear showing of grave abuse of discretion on her part.
14. …
15. 857. The Court then proceeds to determine whether the acts of “(1) Reporting to work with ... bald or cropped hairstyle on 18 January 2002; and (2) The picketing of the hotel premises on 26 January [sic] 2002” were legal. It concludes the following:
16. … the Union is liable for conducting an illegal strike for the following reasons:
17. First, the Union’s violation of the hotel’s grooming standards was clearly a deliberate and concerted action to undermine the authority of and to embarrass the hotel and was, therefore, not a protected action. The appearances of the hotel employees directly reflect the character and well-being of the hotel, being a five-star hotel that provides service to top-notch clients. Being bald or having cropped hair per se does not evoke negative or unpleasant feelings. The reality that a substantial number of employees assigned to the food and beverage outlets of the hotel with full heads of hair suddenly decided to come to work bald-headed or with cropped hair, however, suggests that something is amiss and insinuates a sense that something out of the ordinary is afoot. Obviously, the hotel does not need to advertise its labor problems with its clients. It can be gleaned from the records before us that the Union officers and members deliberately and in apparent concert shaved their heads or cropped their hair. This was shown by the fact that after coming to work on 18 January 2002, some Union members even had their heads shaved or their hair cropped at the union office in the hotel’s basement. Clearly, the decision to violate the company rule on grooming was designed and calculated to place the hotel management on its heels and to force it to agree to the union’s proposals.
18. In view of the union’s collaborative effort to violate the hotel’s grooming standards, it succeeded in forcing the hotel to choose between allowing its inappropriately hairstyled employees to continue working, to the detriment of its reputation, or to refuse them work, even if it had to cease operations in affected departments or service units, which in either way would disrupt the operations of the hotel. This Court is of the opinion, therefore, that the act of the union was not merely an expression of their grievance or displeasure but, indeed, a calibrated and calculated act designed to inflict serious damage to the hotel’s finances or its reputation. Thus, we hold that the union’s concerted violation of the hotel’s grooming standards which resulted in the temporary cessation and disruption of the hotel’s operations is an unprotected act and should be considered an illegal strike.
19. Second, the union’s concerted action which disrupted the hotel’s operations clearly violated the CBA’s “no strike, no lockout” provision …
20. …
21. Third, the union officers and members’ concerted action to shave their heads and crop their hair not only violated the hotel’s grooming standards but also violated the union’s duty and responsibility to bargain in good faith. By shaving their heads and cropping their hair, the union officers and members violated then section 6, Rule XIII, of the Implementing Rules of Book V of the Labor Code. This rule prohibits the commission of any act which will disrupt or impede the early settlement of the labor disputes that are under conciliation. Since the bargaining deadlock is being conciliated by the NCMB, the union’s action to have their officers and members’ heads shaved was manifestly calculated to antagonize and embarrass the hotel management and in doing so effectively disrupted the operations of the hotel and violated their duty to bargain collectively in good faith.
22. Fourth, the union failed to observe the mandatory 30-day cooling-off period and the seven-day strike ban before it conducted the strike on 18 January 2002. The NLRC correctly held that the union failed to observe the mandatory periods before conducting or holding a strike. Records reveal that the union filed its notice of strike on the ground of bargaining deadlock on 20 December 2001. The 30-day cooling-off period should have been until 19 January 2002. On top of that, the strike vote was held on 14 January 2002 and was submitted to the NCMB only on 18 January 2002; therefore, the seven-day strike ban should have prevented them from holding a strike until 25 January 2002. The concerted action committed by the union on 18 January 2002 which resulted in the disruption of the hotel’s operations clearly violated the above-stated mandatory periods.
23. Last, the union committed illegal acts in the conduct of its strike. The NLRC ruled that the strike was illegal since, as shown by the pictures presented by the hotel, the union officers and members formed human barricades and obstructed the driveway of the hotel. There is no merit in the union’s argument that it was not its members but the hotel’s security guards and the police officers who blocked the driveway, as it can be seen that the guards and/or police officers were just trying to secure the entrance to the hotel. The pictures clearly demonstrate the tense and highly explosive situation brought about by the strikers’ presence in the hotel’s driveway.
24. 858. With regard to “the consequent liabilities of the Union officers and members for their participation in the illegal strike” the Court determines the following:
25. … Article 264(a), paragraph 3, of the Labor Code provides that “[a]ny union officer who knowingly participates in an illegal strike and any worker or union officer who knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status x x x”. The law makes a distinction between union officers and mere union members. Union officers may be validly terminated from employment for their participation in an illegal strike, while union members have to participate in and commit illegal acts for them to lose their employment status. Thus, it is necessary for the company to adduce proof of the participation of the striking employees in the commission of illegal acts during the strikes.
26. Clearly, the 29 union officers may be dismissed pursuant to article 264(a), paragraph 3 of the Labor Code which imposes the penalty of dismissal on “any union officer who knowingly participates in an illegal strike”. We, however, are of the opinion that there is room for leniency with respect to the union members. It is pertinent to note that the hotel was able to prove before the NLRC that the strikers blocked the ingress to and egress from the hotel. But it is quite apparent that the hotel failed to specifically point out the participation of each of the union members in the commission of illegal acts during the picket and the strike. For this lapse in judgement or diligence, we are constrained to reinstate the 61 union members.
27. Further, [the Court] held in one case that union members who participated in an illegal strike but were not identified to have committed illegal acts are entitled to be reinstated to their former positions but without backwages.
28. …
29. In this light, [the Court] stand by [its] recent rulings and reinstate[s] the 61 union members without backwages.
30. …
31. In view of the possibility that the hotel might have already hired regular replacement for the afore-listed 61 employees, the hotel may opt to pay separation pay computed at one (1) month’s pay for every year of service in lieu of reinstatement, a fraction of six (6) months being considered one year of service.
32. 859. The Committee notes that the NUWHRAIN – Dusit Hotel Nikko Chapter, a collective bargaining agent since 1978, submitted a collective agreement to the hotel management for negotiation on 24 October 2000. About 14 months later, on 20 December 2001, no agreement had been reached. The NCMB failed to resolve the deadlock. While the Committee does not have before it the information as to the reasons why the agreement could not be reached, it wishes to recall that collective bargaining implies a give-and-take process and that it is important that both employers and trade unions bargain in good faith and make every effort to reach an agreement; moreover genuine and constructive negotiations are a necessary component to establish and maintain a relationship of confidence between the parties [see Digest, op. cit., para. 935]. In the present case, the Committee has insufficient information to determine whether the negotiations were carried out in bad faith by either party, but cannot concur with the Court that the expression of protest by the workers following nearly one year and a half of failed negotiations and conciliation can be seen as a violation of a duty to bargain in good faith.
33. 860. The Committee further notes that, on 31 January 2002, the Secretary of Labor and Employment referred the dispute to compulsory arbitration. In this respect, the Committee recalls that the imposition of a compulsory arbitration procedure if the parties do not reach agreement on a draft collective agreement raises problems in relation to the application of Convention No. 98 and that recourse to compulsory arbitration in cases where the parties do not reach agreement through collective bargaining is permissible only in the context of essential services in the strict sense of the term (i.e. services the interruption of which would endanger the life, personal safety or health of the whole or part of the population) [see Digest, op. cit., paras 992 and 994]. The Committee notes, as it did in examining Cases Nos 2195, 2252 and 2488, concerning the Philippines, that article 263(g) of the Labor Code permits the Secretary of Labor and Employment to submit a dispute to compulsory arbitration, thus bringing an end to a strike, in situations going beyond essential services or an acute national crisis. The Committee takes due note of the Government’s indication in the present case that, in the framework of legislative reforms, the Executive Branch has drafted two bills, which are currently undergoing tripartite consultations for submission to the National Tripartite Industrial Peace Council, in preparation for their submission to appropriate committees of both Houses of the 15th Congress. One of these bills seeks to amend article 263(g) of the Labor Code by limiting the circumstances under which the Secretary of Labor and the President can assume jurisdiction over labour disputes to disputes which affect the provision of services the ILO defines as “essential”. The Committee requests the Government to keep it informed in this regard.
34. 861. With regard to the events of 18 January 2002, the Committee notes that two separate events took place: first, some workers reported to work with cropped hairstyles and were not allowed to work; following that, a picket was staged outside the hotel by these workers and joined by others.
35. 862. With regard to the first event, the Committee notes the complainants’ argument that, by qualifying the act of reporting to work with shaved heads or cropped hair styles as a strike action, the Supreme Court has expanded the definition of strike. The complainants maintain that, if this definition were to become binding law in the Philippines, it would constitute a violation of Convention No. 87. The Committee considers that, while there can be various types of strike action, generally, a strike is a temporary work stoppage (or slowdown) wilfully effected by one or more groups of workers with a view to enforcing or resisting demands or expressing grievances, or supporting other workers in their demands or grievances. In the present case, while having shaved their heads, the employees had not stopped working. The Committee takes into account the concerns expressed by the hotel management with regard to its image and notes that the action by some of the union members have been found by the Supreme Court as having infringed the grooming standards of the hotel. The Committee considers that equating the mere expression of discontent, peacefully and lawfully exercised, with a strike per se results in a violation of the freedom of association and expression.
36. 863. With regard to the subsequent protest actions by trade union officers and members, the Committee notes differing information provided by the complainant and the Government in relation to the conduct of the picket which took place on 18 January 2002. It further notes the findings of the NLRC and the Supreme Court on that point. According to the complainants, workers joined the picket because they were prevented from entering the hotel premises by hotel security guards. The Court, however, considered that the picket constituted a voluntary strike action which had not respected the mandatory time requirements and concludes that trade union officers and members had apparently prevented the hotel employees from entering the premises while the guards and/or police officers were just trying to secure the entrance to the hotel. The Committee notes that the Court, considering that the picket constituted an unprotected and illegal strike, confirmed the dismissal of 29 trade union officers pursuant to article 264(a) of the Labor Code. As regards the 61 trade union members, the Committee notes from the Court’s ruling that there was no proof indentifying them individually as having committed illegal acts. The Court thus ordered their reinstatement, while offering an option to the hotel management of simply paying a “separation pay” to be computed at one month salary for every year of service in lieu of reinstatement. The Committee notes from the complaint that the hotel opted to compensate the separation.
37. 864. The Committee observes that, as the final ruling was handed down more than six years after the dismissals, the Court found this fact sufficient to justify an option of separation pay instead of the reinstatement of the 61 trade union members. The Committee wishes to emphasize in this regard that respect for the principles of freedom of association requires that workers who consider that they have been prejudiced because of their trade union activities should have access to expeditious means of redress. The longer it takes for the proceedings concerning the reinstatement of trade unionists to be completed, the more difficult it becomes for the competent body to issue a fair and proper relief, since the situation complained of has often been changed irreversibly to a point where it becomes impossible to return to the status quo ante. In these circumstances, the Committee must express its concern that all 61 trade union members, despite not having been individually identified in the conflict, have been let go with a limited amount of compensation.
38. 865. The Committee deems it appropriate to place this conflict in its context, i.e. a 15-month labour conflict in an enterprise. Noting that, according to the complainants, the dismissal of 90 trade union officers and members resulted in practice in the union’s demise, the Committee observes that the dismissals of these workers on such a massive scale has had dire consequences for the union and may likely have a negative impact on future freely chosen union representation at the hotel.
39. 866. In this respect, the Committee notes the Government’s indication that it has met with the relevant parties and commenced exploratory talks on possible “out-of-the-box” solutions to the conflict. The Committee requests the Government to bear in mind during these talks that 90 union members were dismissed in a context of heightened tensions and actions on all sides with a consequentially severe impact on the worker-chosen representation at the hotel. Considering that the Court’s judgement makes reference to, among other things, the expression of protest through the shaving of heads as illegal strike action in a manner contrary to the principles of freedom of association, the Committee requests the Government, within the context of the exploratory talks, to review with the hotel management and the dismissed workers concerned the feasibility of their reinstatement and for those who cannot be immediately reinstated, the possibility of including them in work rosters for their re-engagement on a priority basis or of adequately compensating them. It further requests the Government, within this context, to review the adequacy of the separation payment provided to the 61 dismissed trade union members with a view to ensuring that they are sufficiently compensated proportionate to the losses incurred. The Committee requests the Government to keep it informed of the progress made in its talks to reach a satisfactory solution for all concerned.