Observation (CEACR) - adoptée 2020, publiée 109ème session CIT (2021)

Convention (n° 87) sur la liberté syndicale et la protection du droit syndical, 1948 - Philippines (Ratification: 1953)

Autre commentaire sur C087

Observation

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The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government and the social partners this year, as well as on the basis of the information at its disposal in 2019.

The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2019 and 15 September 2020, of the International Transport Workers’ Federation (ITF) received on 3 September 2019 and of Education International (EI) received on 20 September 2019, referring to matters addressed below, as well as the Government’s detailed reply thereto. The Committee also notes the joint observations of EI, the Alliance of Concerned Teachers (ACT) and the National Alliance of Teachers and Office Workers (SMP-NATOW) received on 1 October 2020, denouncing extra-judicial killings of trade unionists and other serious violations of civil liberties, as well as challenges in the application and implementation of the right to freedom of association. The Committee requests the Government to provide its reply thereto.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 108th Session, June 2019)

The Committee noted the discussion that took place in the Conference Committee on the Application of Standards (Conference Committee) in June 2019 concerning the application of the Convention. The Committee observed that the Conference Committee called upon the Government to: (i) take effective measures to prevent violence in relation to the exercise of workers’ and employers’ organizations legitimate activities; (ii) immediately and effectively undertake investigations into the allegations of violence in relation to members of workers’ organizations with a view to establishing the facts, determining culpability and punishing the perpetrators; (iii) operationalize the monitoring bodies, including by providing adequate resources, and provide regular information on these mechanisms and on progress on the cases assigned to them; and (iv) ensure that all workers without distinction are able to form and join organizations of their choosing in accordance with Article 2 of the Convention. The Conference Committee also called on the Government to accept a high-level tripartite mission before the next International Labour Conference. While noting the Government’s request to defer the high-level tripartite mission, the Committee expressed the hope that the Government would take the necessary arrangements to enable the high-level tripartite mission requested by the Conference Committee to take place before the next International Labour Conference. The Committee notes that, in its supplementary report, the Government indicates that it addressed the points raised by the Conference Committee in its 2019 report, that it continues to make reforms and to take measures with the social partners to ensure conformity with ratified labour standards and that it stands ready to accept an ILO mission in the coming years but requires further clarification as to what constitutes “effective measures” to prevent violence against workers; what constitutes “immediate and effective investigation” that would ensure compliance with the Convention; and what measures the Government should take to satisfy the Conference Committee’s request to ensure workers’ right to self-organization. The Committee notes the Government’s request for guidance on giving effect to the conclusions of the Conference Committee. The Committee trusts that its past and present detailed comments will provide useful guidance, in consultation with the social partners, in determining appropriate and effective measures to ensure compliance with the Convention; and that the high-level tripartite mission requested by the Conference Committee will be able to provide specific guidance on giving effect to the Conference Committee’s conclusions. The Committee therefore trusts that, as soon as the situation so permits, the Government will receive a high-level tripartite mission, as requested by the 2019 Conference Committee. The Committee also reminds the Government that, in the meantime, it can avail itself of the technical assistance of the Office, including in order to elaborate a plan of action, detailing progressive steps to be taken to achieve full compliance with the Convention.

Civil liberties and trade union rights

2016 ITUC observations. The Committee notes the Government’s reply to earlier observations from the ITUC, providing an update on the status of the investigations into the alleged assassination of two trade union leaders in 2016 and clarifying that the activities conducted in Compostela Valley, Mindanao were visits under the Community Support Programme of the Armed Forces of the Philippines (AFP). The Committee further notes the Government’s general statement that the policy and programme reforms on freedom of association and collective bargaining implemented by the Government contributed to reduced incidence of labour disputes and labour related violence since 2011 and that this decline can also be attributed to the continuous efforts towards raising awareness and strengthening the capacity of all relevant Government institutions.

New allegations of violence and intimidation. The Committee notes, however, with deep concern the grave allegations of violence and intimidation of trade unionists communicated by the ITUC and EI in 2019, including: (i) assassination of 23 trade union leaders in 2018 and 2019, as well as several attempted assassinations documented by the Center for Trade Union and Human Rights (CTUHR); (ii) death threats targeting trade union leaders in the education sector in January and February 2019, as well as profiling, surveillance, harassment and red-tagging by the Philippine National Police (PNP) and AFP officials; (iii) violent dispersal of a number of workers’ strikes and protests in Marilao, Bulacan in June and July 2018, resulting in serious injuries, arrests, multiple charges (later dropped) and a week-long detention; (iv) violent dispersal of a strike by workers of a fruit-exporting company in Compostela Town in Compostela Valley in October 2018 and the murder of a trade union activist; (v) assassination of nine sugar cane workers during a protest at Hacienda Nene in Sagay, Negros Occidental; and (vi) suspected arson attack of a labour leader’s home during a strike in a banana-packing plant in December 2018. The Committee further notes with deep concern the serious allegations of violence reported by the ITUC in its latest communication, including: (i) extra-judicial killings of two trade unionists in November 2019 and August 2020; (ii) joint military and police raids against trade unions, civil society groups, human rights activists and women's groups in Manila and Bacolod City in October 2019, the arrest of 57 people and the filing of false criminal charges against many of them; (iii) deaths threats, persecution, fabricated charges and profiling of ACT members, as well as an attempted murder against a trade unionist in October 2019 and harassment of two union leaders by the military in July 2020; and (iv) union busting and dispersal of a peaceful demonstration at Coca Cola company in San Fernando, Pampanga province in April 2020, as well as red-tagging of the union at the plant in Bacolod City and threats against a union leader in October 2019. The Committee notes that, in its supplementary report, the Government provides information on the measures taken to address the above allegations from 2019 and 2020, including on any issuing of guidelines, investigating, monitoring or judicial proceedings initiated in relation thereto. The Committee trusts that all of the above allegations will be duly investigated and that any pending proceedings will be concluded without delay, so as to establish the facts, determine culpability and punish the perpetrators, with the aim of effectively preventing and combating impunity.

The Committee further observes with deep concern the serious allegations of violence reported by EI, the ACT and the SMP-NATOW in their 2020 observations, in particular: (i) intimidation of NATOW leaders, as well as arrests and branding of unionists as part of the communist movement; (ii) extra-judicial killings of eight unionists in the education sector and two attempted murders between July 2019 and August 2020; (iii) 18 incidents of death threats, red-tagging, intimidation and harassment of ACT leaders; (iv) 36 documented cases of illegal police profiling; and (v) false criminal charges and four cases of long-term detention of ACT members. While noting that some aspects of these allegations have been incorporated in the 2020 ITUC communication and thus briefly addressed by the Government in its reply thereto, the Committee observes that the joint observations of EI, the SMP-NATOW and the ACT contain more specifics as to the concrete incidents, allowing the Government to provide detailed replies in this regard. The Committee therefore requests the Government to provide a detailed reply to these serious allegations, including on any investigating or other procedures initiated, so as to establish the facts, determine culpability, and punish the perpetrators, and trusts that it will continue to take appropriate measures, adapted to national circumstances, to prevent and promptly address any future allegations of violence and intimidation of trade unionists.

Pending cases of alleged killings of trade union leaders. The Committee previously requested the Government to provide detailed information on the progress achieved on the prosecution and judicial investigations relating to three cases of alleged killings of trade union leaders previously reported by the ITUC. The Committee notes the update provided by the Government that the case of Rolando Pango should be reviewed by regional police for possible refiling, that the case of Florencio “Bong” Romano has not yet been deliberated on due to the non-reactivation of the Administrative Order (AO) 35 Inter-Agency Committee (IAC) and that in the case of Victoriano Embang, a case of murder was filed and an arrest warrant issued against suspects who are at large. In its supplementary report, the Government reiterates that the three cases are currently being handled and investigated through the regular process of criminal investigation and prosecution but clarifies that progress in this regard may be affected by a number of circumstances, such as the lack of material witnesses and evidence. While taking due note of the Government’s indication, the Committee regrets to observe that even after numerous years, none of these cases have yet been fully concluded and expresses the firm hope that the investigations into the serious allegations of killings of the above trade union leaders, as well as the ongoing judicial proceedings in this regard, will be completed in the very near future with a view to shedding full light, at the earliest date, on the facts and the circumstances in which such actions occurred and, to the extent possible, determining responsibilities, punishing the perpetrators and preventing the repetition of similar events.

Monitoring mechanisms. In its previous comment, the Committee requested the Government to provide detailed information on the progress made by the Tripartite Validating Teams, the National Tripartite Industrial Peace Council Monitoring Body (NTIPC-MB) and other relevant bodies in ensuring the collection of the necessary information to bring the pending cases of violence to the courts and the outcome in this regard. The Committee notes the Government’s assertion that: (i) the existing mechanisms remain steadfast in ensuring expeditious investigation, prosecution and resolution of pending cases concerning alleged harassment and assassination of labour leaders; (ii) for example, after the alleged extra-judicial killing (EJK) of a trade unionist Dennis Sequeña was endorsed by the IAC, the Department of Justice ordered the set-up of a special investigating team to conduct the investigation and case build-up; (iii) a notable advancement with regard to the IAC was the appointment of labour representatives nominated and selected from the NTIPC as observers in its proceedings; and (iv) the existing mechanisms monitor 72 cases of EJK and attempted murders and have also been mobilized to validate and gather information on the 43 cases of alleged murders of unionists and union leaders, as identified by the CTUHR and discussed at the Conference Committee. The Committee welcomes the information provided by the Government to the Conference Committee that, in the spirit of social dialogue and tripartite engagement, trade unions’ and employers’ representatives were enlisted as deputized labour inspectors (as of January 2019, there were 241 deputized social partners) and that 16 Regional Tripartite Monitoring Bodies (RTMBs) across the country were ready to be mobilized in case of need, bringing about an immediate response and concrete appropriate action.

The Committee observes, however, that the Government representative at the Conference Committee recognized that the mandates, structures and internal rules of the monitoring mechanisms need to be further revisited. According to the Government representative, the IAC, for instance, needed strengthening by ensuring openness and transparency on the prosecution and movement of EJK cases, adopting inclusive criteria in the screening of these cases, relatedness to the exercise of freedom of association, capacity-building on freedom of association and on the collection of physical and vital forensic evidence to reduce heavy reliance on testimonial evidence. The Committee regrets to observe that the IAC has not yet reconvened and that even though members of the Tripartite Validating Teams may request security assistance from the PNP and the AFP, due to the risks and dangers involved for them, this initiative has not yet been put into practice. The Committee further observes the concerns raised by the ITUC and the ITF with regard to the criteria used by the IAC to determine extra-judicial killings, the lack of effective monitoring mechanisms and of resources to investigate and prosecute all complaints of EJK of trade unionists and the need to rapidly identify perpetrators of violence and bring them to justice to combat impunity.

The Committee regrets that despite a number of initiatives undertaken, there continue to be numerous allegations of violence perpetrated against trade union members for which the presumed perpetrators have not yet been identified and the guilty parties punished. It notes in this regard the Government’s acknowledgment that conviction has indeed been the recurring and imposing challenge due to the amount of evidence required to convict perpetrators of a crime and that there is a need for major support on this aspect. The Committee observes that the Conference Committee also noted with concern the numerous allegations of murders of trade unionists and anti-union violence, as well as the allegations regarding the lack of investigation in relation to these allegations. In light of the above, the Committee requests the Government to take the necessary measures to ensure that all of the existing monitoring mechanisms can function properly and efficiently, including by allocating sufficient resources and staff, so as to contribute to effective and timely monitoring and investigation of allegations of EJK and other forms of violence against trade union leaders and members. In particular, the Committee expects that, despite the challenges faced, the Tripartite Validating Teams will be established in practice and the IAC will reconvene in the near future. The Committee requests the Government to continue to provide detailed information on the progress made by the existing monitoring mechanisms in ensuring the collection of the necessary information to bring the pending cases of violence to the courts.

Measures to combat impunity. The Committee previously requested the Government to provide detailed information on the steps taken to combat impunity, provide sufficient witness protection and build the capacity of the relevant State actors in the conduct of forensic investigation. The Committee welcomes the detailed information provided by the Government to the Conference Committee relating to numerous trainings, capacity-building activities, seminars and lectures conducted to enhance the knowledge and capacities of various State and non-State actors, including the police, military, prosecutors, enforcers, relevant actors in criminal investigation, local chief executives and social partners on international labour standards, the principles and application of the Convention, as well as on criminal investigation. The Committee also welcomes additional steps taken by the Government in this regard: elaboration of a workers’ training manual and of an e-learning module on freedom of association as part of the Labour and Employment Education Services (LEES); call by the Department of Labour and Employment (DOLE) on the PNP and AFP to ensure the observance of the guidelines on the conduct to be observed during the exercise of workers’ rights and activities; AFP and PNP commitment to integrating the Labour Code and the guidelines in their education programme; and review of the guidelines for amendment and updating. Finally, the Committee observes the Government’s explanation that reliance on testimonial evidence in the prosecution of criminal cases remains indispensable, that forensic evidence is supplemental in character and that programmes should be conducted, together with the ILO, to enhance the capacity of the concerned agencies in gathering and handling forensic evidence. The Government representatives also informed the Conference Committee about a strategic planning conducted in March 2019 regarding the provision of adequate assistance and protection to witnesses under the Witness Protection Programme. The Committee further notes the supplementary information provided by the Government, indicating that exploratory talks were ongoing with the ILO Country Office on possible collaboration for future projects and capacity-building on human and trade union rights for all concerned State actors but due to the immense impact of the COVID-19 pandemic, such initiatives have been stalled. It states that, in view of the precautionary health and safety measures and protocols that must now be observed, the Government together with the Country Office will have to reconsider, review and re-design previous training and capacity-building programmes to incorporate the health and safety standards. Welcoming the above initiatives and measures undertaken, and duly noting the need to ensure pertinent health and safety measures in the context of the current pandemic, the Committee encourages the Government to continue to provide regular and comprehensive training to all concerned State actors in relation to human and trade union rights, as well as on the collection of evidence and the conduct of forensic investigation, with the aim of combating impunity, increasing the investigative capacity of the concerned officials and providing sufficient witness protection. The Committee invites the Office to provide any technical assistance required in this regard.

Review of operational guidelines of monitoring mechanisms. The Committee previously requested the Government to inform it of developments with regard to the review and updating of the operational guidelines of the investigating and monitoring bodies, as part of the National Action Plan under the DOLE-ILO-EU-GSP+ Development Cooperation Project. The Government indicated to the Conference Committee that one of the outcomes of the project is the review of the existing mechanisms to address cases of violations of workers’ civil liberties and trade union rights. Following the review of the operational guidelines and process structures of the NTIPC-MB, the RTMBs, the IAC and the National Monitoring Mechanisms (NMM), gaps and issues in the operationalization of these mechanisms have been identified, as well as problem areas encountered by investigative agencies, such as the PNP, the Commission on Human Rights (CHR) and the AFP Human Rights Officer. According to the Government, recommendations issued to help address the identified gaps and blockages will be taken up by the concerned agencies for consideration and possible implementation. Welcoming this information, the Committee trusts that the recommendations addressing the current gaps and blockages will be rapidly implemented so as to contribute to swift and efficient investigation of pending labour-related cases of EJK and other violations.

Trade union rights and civil liberties. Anti-Terrorism Act. The Committee notes the concerns expressed by the ITUC over the adoption of the Anti-Terrorism Act, 2020 which it alleges contains a broad definition of terrorism, aims at silencing dissenting voices and further entrenches State repression and hostility against workers and trade unionists. The Committee notes that in reply, the Government states that the Anti-Terrorism Act does not, in any way, seek to curtail workers’ right to freedom of association but aims to address the root causes of terrorism through a comprehensive approach and by all legal means, while safeguarding and upholding basic rights and fundamental liberties enshrined in the Constitution, including the right to freedom of association. In view of the Government’s indication, the Committee expects that the Anti-Terrorism Act, 2020 will not be used in any way to curtail legitimate trade union activities or to justify repression against trade unionists, and requests the Government to provide information on any aspects of implementation of the Act that affect trade unionists or trade union activities.

Legislative issues

Labour Code. In its previous comments, the Committee had been noting the numerous amendment bills pending before Congress over many years and in various forms with a view to bringing the national legislation into conformity with the Convention. The Committee notes the Government’s assertion that, in coordination with the social partners, it has sought to address emerging labour, economic and social concerns affecting workers’ rights and exercise thereof and has achieved substantial progress in its commitments towards the promotion and protection of freedom of association rights, including a multitude of actions and reforms undertaken. On the other hand, the Committee notes that, according to the ITUC, there appears to be an absence of good faith by the Government to adopt the necessary measures that would bring the legislation into compliance with the Convention. The Committee further observes that the Conference Committee regretted that the reforms introduced to address some of the issues were not adopted and urged the Government to bring the law into compliance with the Convention. The Committee on Freedom of Association also trusted that the Government would make serious efforts to bring the Labour Code into conformity with the principles of freedom of association and referred these legislative aspects to this Committee (see 391st Report, October 2019, Case No. 2745, paragraph 50 and 392nd Report, October 2020, Case No. 2716, paragraph 153). The Committee expects that the Government will make serious efforts to align the Labour Code and other pieces of national legislation with the Convention on the following matters.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations of their own choosing, without previous authorization. Foreign nationals. In its previous comments, the Committee had requested the Government to provide information on the progress made in relation to amendments to sections 284 and 287(b) of the Labour Code so as to grant the right to organize to all workers residing in the Philippines. The Committee notes, from the supplementary information provided by the Government that House Bill No. 2629 (allowing foreign nationals to exercise their right to self-organization) was filed in July 2019 and is pending with the House of Representatives Committee on Labour and Employment for consideration. While taking note of the pending bill, the Committee regrets the absence of any substantial progress in the adoption of the pertinent legislation and expects that the necessary amendments will be adopted in the near future and that they will ensure that any individuals residing in the country, whether or not they have a residence or a working permit, can benefit from the trade union rights provided by the Convention. The Committee requests the Government once again to provide information on progress made in this respect and to transmit copies of the amending legislation once adopted.

Other categories of workers excluded from the guarantees of the Convention. The Committee had previously pointed to the lack of trade union rights for certain categories of workers, including workers in managerial positions or with access to confidential information, firefighters, prison guards and other public sector workers, as well as temporary or outsourced workers and workers without employment contract (sections 253 and 255 of the Labour Code, Rule I Section 4 of Executive Order No. 180, 1987 and Rule II Section 2 of the Amended Rules and Regulations Governing the Exercise of the Right to Government Employees to Organize, 2004). The Committee notes the Government’s indication, from the supplemental information provided, that the right to self-organization may be exercised by all employees in commercial, industrial and agricultural enterprises, as well as in religious, charitable, medical and educational institutions and that the coverage extends to ambulant, intermittent, itinerant, self-employed and rural workers, as well as those without any definite employer. The Government reiterates that for the purposes of exercising the right to organize, the first parameter to take into account is whether or not a worker is covered by an employer–employee relationship. It states that under section 253 of the Labour Code, only employees may join trade unions for purposes of collective bargaining, whereas ambulant, intermittent, itinerant, self-employed and rural workers, as well as those without any definite employer may only form labour organizations for their mutual aid and protection. In its supplementary report, the Government reiterates this distinction and asserts that nothing in the law or jurisprudence prevents temporary or outsourced workers and workers without an employment contract from exercising the right to form and join trade unions. Concerning workers in managerial positions, the Committee notes that under section 255 of the Labour Code, they are not eligible to join, assist or form any labour organization but observes that, according to the Government, while workers in managerial positions may not form or join labour organizations so as to avoid any conflict of interest or company-dominated unions, they may form and join any organizations for mutual aid and protection or for any legitimate purpose other than collective bargaining. Finally, the Committee observes that firefighters and prison guards are excluded from the scope of application of the Executive Order No. 180 (Rule I, section 4), which provides guidelines for the exercise of the right to organize of government employees but notes the Government’s indication that firefighters and prison guards may exercise the right to freedom of association but not to the extent of forming, joining or assisting labour organizations for purposes of collective bargaining. While taking due note of the above information, in particular on the right to organize for purposes other than collective bargaining and to form or join organizations other than labour organizations for mutual aid and protection, the Committee observes that it remains unclear whether or to what extent this form of organization provides to all of the above categories of workers, both in law and in practice, the full guarantees of freedom of association as set out in the Convention and also observes the concerns expressed by the ITUC in this regard.

As to the pending legislative amendments, the Committee notes the Government’s indication, in its supplementary report, that House Bill No. 2621, which seeks to address the gaps in public sector labour relations, particularly on the protection of the right to organize, and House Bill No. 2846, which aims at codifying all laws and relevant issuances governing the civil service into a single, comprehensive statute, were filed in the 18th Congress in July 2019 and are currently with the House Committee on Civil Service and Professional Regulation. The Government also informs that House Bill No. 7036 (strengthening the security of tenure of workers) was further consolidated and submitted to the House Committee on Labour and Employment for consideration. This bill seeks to: (i) protect workers from labour-only contracting by allowing the labour sector to express concerns on contracting certain jobs and the employers to present the realities of their business operations; and (ii) simplify the classification of workers to regular and probationary, with project and seasonal employees being classified as regular workers for the duration of their employment, while all other forms of employment are strictly prohibited. Taking due note of the above information and the pending legislative bills and recalling that the legislative reform addressing any potential gaps in the right to organize of the above-mentioned categories of workers has been pending for a number of years, the Committee urges that any legislative amendments currently pending on the issue be adopted without delay so as to ensure that, should this not yet be the case, all workers, with the sole exception of the armed forces and the police, including those in managerial positions or with access to confidential information, firefighters, prison guards and other public sector workers, as well as temporary or outsourced workers and workers without employment contracts, are able to form and join the organizations of their own choosing to defend their occupational interests, and thus benefit from the full guarantees provided by the Convention. The Committee requests the Government to transmit copies of the amending legislation once adopted and reminds the Government that it can avail itself of the technical assistance of the Office, if it so desires.

Registration requirements. The Committee had previously referred to the need to amend section 240(c) of the Labour Code so as to lower the excessive minimum membership requirement for forming an independent union (20 per cent of all the employees in the bargaining unit where the union seeks to operate). The Committee notes, from the supplementary information that, according to the Government, while the current 20 per cent requirement is required for an independent union to acquire legal personality and to be entitled to the rights and privileges granted by the law to legitimate labour organizations, there is no required number of workers in an establishment before a union can be formed. It also clarifies that section 241 of the Labour Code makes registration easier through “chartering”, where any duly registered federation or national union can, by issuing a charter certificate, directly create a local chapter entitled to all the rights and privileges of a legitimate labour organization without the need to comply with the registration requirements in section 240(c) of the Labour Code. The Committee understands from the Government’s indication that although a union may be formed by any number of workers at an enterprise, it will not be considered as a legitimate organization and will thus not have a legal personality or benefit from any other rights stemming from the law (right to own property, sue in court, etc.), unless it represents 20 per cent of the workforce at the unit where it is active and obtains a certificate of registration. In this regard, the Committee notes the Government’s indication that House Bill No. 6023, which seeks to reduce the minimum membership requirement for registration of independent unions from 20 to 5 per cent, institutionalize online registration, decentralize the registration process and ensure a one-day process cycle time, was filed in January 2020 and is pending consideration with the House of Representatives Committee on Labour and Employment. Observing that the Government has been referring to amending legislation for several years now, the Committee firmly expects that the necessary amendments will be adopted in the very near future, reducing the minimum membership requirement for registration to a reasonable level so that the establishment of independent legitimate organizations is not hindered. The Committee requests the Government to provide information on progress made in this respect and to transmit copies of the amending legislation once adopted.

Article 3. Right of workers’ organizations to organize their activities and to formulate their programmes without interference by the public authorities. Essential services. The Committee previously requested the Government to provide information on the legislative progress made to ensure that Government intervention leading to compulsory arbitration is limited to essential services in the strict sense of the term (amendments to section 278(g) of the Labour Code). The Committee notes from the supplementary information provided by the Government that House Bill No. 2632 (aimed at limiting Government intervention leading to compulsory arbitration to essential services in the strict sense of the term, and even to prohibiting the issuance of injunctions in labour cases) was filed in July 2019 and is pending consideration with the House of Representatives Committee on Labour and Employment. The Committee also notes that the Government reiterates information provided previously on the issuance in 2013 of Order No. 40-H-13 (an implementing guideline for section 278(g) of the Labour Code), which harmonizes the list of industries indispensable to the national interest with the essential services criteria of the Convention in the exercise of assumptive power of the Secretary of Labour and Employment over labour disputes, strikes and lockouts, and which should help facilitate the passage in Congress of the respective bill. The Committee recalls that the industries referred to in Order No. 40-H-13 include the hospital sector, electric power industry, water supply services (except small water supply services, such as bottling and refilling stations) and air traffic control; and that other industries may be included upon recommendation of the NTIPC. It observes in this regard that, according to the ITUC, the Government still retains an expansive instead of a strict and limited definition of essential services. Observing that the Committee on Freedom of Association has also previously addressed this issue (see 390th Report, June 2019, Case No. 2716, paragraph 78; 391st Report, October 2019, Case No. 2745, paragraph 51 and 392nd Report, October 2020, Case No. 2716, paragraph 153) and recalling that the Government has been referring to legislative amendments to section 278(g) for numerous years, the Committee expects that these legislative amendments will be adopted in the very near future and that they will ensure that Government intervention leading to compulsory arbitration is limited to essential services in the strict sense of the term. The Committee requests the Government to report progress in this regard and to transmit copies of the amending legislation once adopted.

Penal sanctions for participation in a peaceful strike. In its previous comments, the Committee firmly trusted that sections 279 and 287 of the Labour Code would be amended in the very near future to ensure that no penal sanctions are imposed against a worker for having carried out a peaceful strike, even if non-compliant with bargaining or notice requirements. The Committee notes that, according to the Government, current sections 279 and 287 of the Labour Code do not impose penal sanctions on workers for participating in or carrying out a peaceful strike but merely list and penalize activities which are prohibited during a strike or lockout. In its supplementary report, the Government also informs that House Bill No. 2631 (strengthening the workers’ right to strike) was filed in July 2019 and is pending with the House of Representatives Committee on Labour and Employment for consideration. The bill aims to: (i) authorize a group or representatives of workers to file the notice of, and to go on, strike; and (ii) remove dismissal and imprisonment as penalty for violation of orders, prohibitions or injunctions issued by the Secretary of Labour and for direct participation by union officers in an illegal strike. The Committee further observes the allegations raised by the ITF, indicating that in addition to sections 279 and 287 of the Labour Code, the 1946 Commonwealth Act has also been used to impose penal sanctions against an organizer of a peaceful strike. Regretting the absence of any substantial progress in the adoption of the previously announced amendments to sections 279 and 287 of the Labour Code, the Committee expects the Government to take the necessary measures to ensure that these amendments are adopted in the near future and that any other necessary changes are made in national laws or regulations to ensure that no penal sanctions are imposed against a worker for having carried out a peaceful strike, even if non-compliant with bargaining or notice requirements. The Committee requests the Government to provide information on the progress made, as well as its reply to the ITF allegations.

Foreign assistance to trade unions. The Committee had previously referred to the need to amend section 285 of the Labour Code, which subjected the receipt of foreign assistance to trade unions to prior permission of the Secretary of Labour. The Committee notes the Government’s clarification that while section 285 of the Labour Code regulates foreign assistance to trade unions, the burden of obtaining an authorization is not on the union but on the foreign entity which provides the assistance. The Committee further observes, from the supplementary information provided by the Government, that House Bill No. 2629 was filed in July 2019 and is pending with the House of Representatives Committee on Labour and Employment for consideration. The bill aims to lift the regulation on foreign assistance by allowing foreign individuals or entities to give any donation, grant or other assistance to any labour organization, group of workers or auxiliary thereof without prior approval of the Secretary of Labour. Recalling that the Government has been referring to amending legislation for several years now, the Committee firmly expects that the proposed legislative amendments removing the need for Government permission for foreign assistance to trade unions will be adopted in the very near future. It requests the Government to provide information on any progress made in this regard and to transmit copies of the amending legislation once adopted.

Article 5. Right of organizations to establish federations and confederations. The Committee previously referred to the need to lower the excessively high requirement of ten union locals or chapters duly recognized as collective bargaining agents for the registration of federations or national unions set out in section 244 of the Labour Code. The Committee notes from the supplementary information provided by the Government that House Bill No. 6023, which seeks to lower the requirement for registration of federations and confederations from 10 to 5 local chapters was filed in January 2020 and is pending consideration with the House of Representatives Committee on Labour and Employment. Observing that the revision of the Labour Code on this point has been pending for several years, the Committee firmly expects that the legislative amendments lowering the excessively high requirement for registration will be adopted in the very near future and requests the Government to provide information on the progress achieved.

Other legislative matters. The Committee notes that the Committee on Freedom of Association referred a number of legislative aspects to this Committee, in particular relating to: (i) the progress made in the adoption of the Bill concerning enforced and involuntary disappearances, which the Committee had considered could represent an important step in acknowledging the existence of enforced disappearances and ensuring significant and dissuasive sanctions (see 392nd Report, October 2020, Case No. 2528, paragraph 136); and (ii) the progress made with regard to the previously announced review by the Supreme Court and the Commission on Human Rights of the witness protection programme on the writ of amparo adopted in 2007, the application of the Anti-Torture Act No. 9745 and of Act No. 9851 on crimes against international humanitarian law, genocide and other crimes against humanity (see 392nd Report, October 2020, Case No. 2528, paragraph 138). The Committee requests the Government to provide information on any progress made on the above matters.

Application of the Convention in practice. The Committee welcomes the statistics provided by the Government on the number of workers’ organizations and the number of workers covered in both the private and public sectors, as well as the introduction of a prohibition to contract or subcontract when undertaken to circumvent the workers’ right to security of tenure, self-organization, collective bargaining and peaceful concerted activities (Executive Order No. 51, series of 2018).

The Committee is raising other matters in a request addressed directly to the Government.