Observation (CEACR) - adoptée 2003, publiée 92ème session CIT (2004)

The Committee notes the information contained in the Government’s report. The Committee notes the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2252 (see 332nd Report, paragraphs 848-890). It also notes the entry into force of Department Order No. 40-03 amending the Rules of Implementation of Book V of the Labor Code. Furthermore, the Committee notes that Senate Bill No. 2576, which seeks to establish a new Labor Code, has been filed before the Philippines Senate. The Committee requests the Government to provide with its next report a copy of the Bill or of any final text and to keep it informed of any progress made.

Bearing in mind the points raised in its previous comments over the years on the various discrepancies between the Labor Code and the Convention, the Committee would like to draw attention more specifically to the following points.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations of their own choosing. The Committee notes with regret that the Government’s report contains no additional information with regard to certain points raised in its previous comments concerning the following discrepancies between the national legislation and the requirements of the Convention:

-  the requirement that at least 20 per cent of workers in a bargaining unit are members of a union (section 234(c) of the Labor Code);

-  the prohibition of aliens (other than those with valid permits if the same rights are guaranteed to Filipino workers in the country of the alien workers), from engaging in any trade union activity (section 269) under the penalty of deportation (section 272(b)), and section 2 of Rule II of Department Order No. 40-03, which confirms such restrictions.

The Committee requests the Government to take the necessary measures to amend these provisions and to keep it informed of any developments.

Article 3. Right of workers’ organizations to organize their administration and activities and to formulate programmes without government interference. Compulsory arbitration. The Committee has been referring for a number of years to the need to amend section 263(g) of the Labor Code which permits the Secretary of Labor and Employment to submit a dispute to compulsory arbitration. The Committee notes that the Government’s report does not provide any information on this matter. The Committee must again point out that this provision of the Labor Code is drafted in such general terms that it could be applied in situations extending well beyond those in which strike action may be limited or prohibited in conformity with the Convention. It recalls that such restrictions are permissible only in the following cases: (i) in essential services, i.e. those services the interruption of which would endanger the life, personal safety or health of the whole or part of the population; (ii) in acute national crises to the extent necessary to meet the requirements of the situation and only for a limited period; and (iii) concerning public servants exercising authority in the name of the State. The Committee recalls that it has been calling upon the Government to amend section 263(g) since 1978. Meanwhile, in practice, this provision is still applied as shown in Cases Nos. 2195 and 2252 pending before the Committee on Freedom of Association (see Case No. 2195, 329th Report, paragraphs 722-739, 332nd Report, paragraphs 131-142, and Case No. 2252, paragraphs 848-890). The Committee notes from the conclusions of the Committee on Freedom of Association that the Department of Labor and Employment has submitted an amendment proposal to the Labor Committees of the House of Representatives and the Senate. The proposal would include the intervention of the Secretary of Labor and Employment only in disputes involving essential services. The Committee expresses the firm hope that this initiative will result in the amendment of section 263(g) and that the new Labor Code will effectively guarantee that workers can exercise their right to strike without interference by the Government. In the meantime, the Committee trusts that the Government will effectively limit the exercise of this power to the considerations made above.

Sanctions for strike action. The Committee notes that its previous comments related to the following penalties in the Labor Code for participation in illegal strikes: the dismissal of trade union officers (section 264(a)), and penal liability to a maximum prison sentence of three years (section 272(a)). The Committee notes that the Government reiterates its previous comments that these provisions only apply in limited circumstances of illegal strikes or commission of illegal acts and that the penal sanctions have never been imposed. The Committee further notes that, according to the Government, Senate Bill No. 2576 seeks to set forth amendments to the law on strikes and that the proposed changes alter the context of sections 264(a) and 272(a). The Committee notes, however, from the conclusions of the Committee on Freedom of Association in Case No. 2252, that criminal charges have been pressed against trade union members and officers for their participation in a strike action considered to be illegal by the national authorities; these criminal charges are currently pending before the competent court. The Committee recalls that sanctions for strike action should be possible only where the prohibitions and restrictions provided for such actions are in conformity with the provisions of the Convention. The Committee further recalls that sanctions should not be disproportionate to the seriousness of the violation (see General Survey, op. cit., paragraphs 177-178). In particular, prison sentences should be avoided in cases of peaceful strike action. The Committee expresses the firm hope that the Government will take the necessary measures to amend sections 264(a) and 272(a) to ensure that workers may exercise effectively their right to strike and without the risk of being sanctioned in a disproportionate manner. It requests the Government to keep it informed of the measures taken or envisaged in this respect, in particular within the context of the drafting of the new Labor Code.

In its previous comments, the Committee noted that section 146 of the Penal Code provides for imprisonment for the organizers or leaders of strikes and for participants in pickets deemed for propaganda purposes against the Government. The Committee notes the information provided in the Government’s report according to which this provision only applies in limited circumstances, which do not include the exercise of the right to strike, where the applicable sanctions are those provided in the Labor Code. The Committee wishes to recall that paragraph 3 of section 146 refers to participation in "any meeting which is held for propaganda purposes against the Government ..." and that "meeting" is defined to include "picketing of Labor groups and similar group actions". While noting the Government’s indication, the Committee is of the view that the wording of section 146 and the reference it contains to picketing may lead to its application to a legitimate strike action. The Committee therefore requests the Government to amend section 146 to ensure that it will not be applied to workers peacefully exercising their right to strike. The Committee further requests the Government to keep it informed of any application in practice of section 146 in the case of strike action.

Article 5. Right of workers’ organizations to establish and join federations and confederations and their right to affiliate with international organizations. The Committee notes with regret that the government’s report contains no information in reply to its previous comment regarding the need to amend section 237(a) of the Labor Code, which sets an excessively high requirement for the number of unions (ten) to establish a federation or a national union. The Committee requests the Government to provide information on the measures taken or envisaged in this respect in its next report.

With respect to international affiliation, section 270 of the Labor Code still includes a provision seeking to regulate the receipt of foreign assistance by any trade union. However, the Committee takes note with interest of the information contained in the Government’s report that this provision is no longer enforced in practice and that, the Department of Labor and Employment has indicated to Congress that this provision should be expressly repealed. The Committee trusts that Senate Bill No. 2576 will include such an amendment to the Labor Code and requests the Government to keep it informed of any development in this respect.

The Committee is also addressing a request directly to the Government.