TUCP Statement before the ILO Mission, September 2009

TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP)

STATEMENT BEFORE THE ILO MISSION, SEPTEMBER 2009

Introduction

The Government of the Republic of the Philippines (GRP) is signatory to and has ratified ILO Convention 87 in 1948.

2009 Report of the Committee on the Application of Standards

I. TUCP appreciates the long standing observations by the Committee of Experts on the need to amend certain provisions of the Philippine Labor Code (PLC) to bring it into conformity with the Convention:

Article 234 (f) – for registration – requiring the submission of all the names of an organization comprising at least 20 percent of all employees in the bargaining unit where it sought to operate

The new law, Republic Act No. 9481 or “An Act Strengthening the Workers’ Right to Self-Organization, Amending for the Purpose Presidential Decree No. 442”, otherwise known as the Labor Code of the Philippines” enacted on 25 May 2007, amended certain provisions of the labor code including the specific provision in question.

The Implementing Rules (DOLE Department Order No. 40-F-03, Series of 2008) was issued late on October 30, 2008.

The applicability of the 20 percent minimum membership requirement for registration of unions still applies to independent unions. TUCP welcomes the government’s statement that it supports the union position that the 20 percent minimum membership requirement will be taken away.

A chartered local still has to submit the charter certificate and supporting documents; and therefore its officers still risk undue harassment from employers.

The Bureau of Labor Relations-DOLE still has the power to cancel the registration of labor unions, contrary to Article 2 of the ILO Convention No. 87 which specifically provides that the right to establish organizations shall be subject “only to the rules of the organizations concerned, xxx without previous authorization”.

Paragraph five (5) of Section 1, Rule VIII which reads as follows: “ANY EMPLOYEE HAS THE RIGHT TO INTERVENE FOR THE PROTECTION OF HIS INDIVIDUAL RIGHT,” is contrary to the law. The said paragraph, enables any employee, with implicit influence or coercion from employers, to disrupt Petition for Certification of election proceedings, and therefore counters the principle of “Employer as Bystander” as stipulated under Article 258 of RA 9481;

Paragraph E of Section 10, Rule VIII which reads as: “TO AFFORD AN INDIVIDUAL EMPLOYEE-VOTER AN INFORMED CHOICE WHERE THE LOCAL/CHAPTER IS THE PETITIONING UNION, THE LOCAL/CHAPTER SHALL SECURE ITS CERTIFICATE OF CREATION AT LEAST FIVE (5) WORKING DAYS BEFORE THE DATE OF CONSENT ELECTION,” is contrary to the letter and intent of the law.

• LIMIT COMPULSORY ARBITRATION TO ESSENTIAL SERVICES IN the STRICT SENSE OF THE TERM

Although the Philippine government agreed during the ILO Conference Committee in 2007 to limit the exercise of assumption of jurisdiction to cases involving “essential services[1],” as defined by ILO, it continues to exercise excess of authority in the assumption of labor disputes. (TUCP definition limits “essential service” to three — electricity, water and hospitals). For example, while exercising AJ only in three (3) cases in 2008, it has already assumed jurisdiction in five (5) cases in 2009.

Proposed legislation (House Bill No. 2112 and Senate Bill No. 159) amending relevant provisions of the Labor Code on this matter have been pending at both Houses since the 13^th Congress.

In the interim, TUCP welcomes DOLE’s position that it “can amend the implementing rules on strikes and picketing to provide for the procedure for the conduct of conference with the parties for the purpose of  determining whether the dispute affects the national interest.”  However, TUCP insists on a legislation-determination of essential services to restrict application.

• REVIEW THE PENALITIES FOR PARTICIPATION IN A STRIKE CONSIDERED ILLEGAL;

TUCP regrets that DOLE insists that the penalties of dismissal  for (1) direct participation by union officers in illegal strike, (2) direct participation of union members in the commission of unlawful acts during strike, and (3) violation of orders, prohibitions or injunctions issued by the Secretary of Labor — still remain.

• LOWER THE EXCESSIVELY HIGH NUMBER OF TRADE UNIONS (TEN) REQUIRED TO ESTABLISH FEDERATIONS OR CONFEDERATIONS; AND

This requirement has not been withdrawn.

• DIRECT ELECTIONS FOR UNION OFFICERS

The union constitution and by-laws, NOT ADMINISTRATIVE AUTHORITY OR REGULATION, should govern elections for union office bearers.

• NOT TO MAKE FOREIGN ASSISTANCE TO TRADE UNIONS SUBJECT TO THE PRIOR AUTHORIZATION OF A MINISTER OR SECRETARY

This provision has not been withdrawn. However, TUCP and many other unions do not comply with this regulation, and have not been sanctioned.  TUCP welcomes the DOLE’s support for the repeal of this requirement.

II. APPLICATION OF the convention in law and practice including IN the special economic zones and other trade union rights violations

– LEVELS OF UNIONIZATION IN the EXPORT PROCESSING ZONES

There is increasing difficulty in organizing unions and in concluding CBAs.

DOLE records show only registered unions. Those with CBAs would be much less. TUCP experience, as indicated below, confirm this trend.

	1995-2000	2000-2004	2004-2008
Target companies (in 100 equivalents)	100	100	100
Unions registered	75	50	40
Unions reaching cert. elections	40	25	15
Unions certified	25	13	6
Unions with CBAs	15	5	3

On the Labour Standard Enforcement Framework (LSEF), the unions were unable to implement the agreed labor inspection audit because the pledged ILO assistance for the exercise was not provided.

–  militarization of workplaces in the zones and strategic areas

–  There is an on-going tripartite review of the existing Guidelines in the Conduct of PNP Personnel, Security Guards and Company Guard Forces during Strikes, Lockouts and Labor Disputes in General.

–  Many security persons appear not to appreciate this issuance.

–  Examples of interference by public authorities in workers’ right to freedom of association:

• Some enterprises and employer groups have mobile persons who monitor/stop “suspected union organizing activities (e.g., leafleting);
• On the day of the certification election:

• Some employers physically prevent the election from taking place despite lawful orders in the presence of election officers, or allowing management representatives to screen/intimidate voters.
• Instant temporary restraining orders issued by Court of Appeals alleging damage to the enterprise if the workers were allowed to voice their choice in the certification election.

– labor-related extra-judicial killings

TUCP deplores killings of any kind.  ILO should assist in delineating labor-related killings from those not related to labor activities.

Several measures taken by the government to address the problem of extra judicial killings, enforced disappearances and trade union rights violations including the issuance of several measures and the establishment of inter-governmental bodies/committees (e.g., Task Force on Extrajudicial Killings) do not provide a formal mechanism for participation, consultation and dialogue with trade unions.

The TUCP proposed tripartite committee composed of representatives from DOLE, CHR, labor and employers group to monitor and validate cases of violations of trade unions’ and other human rights.

In collaboration with TUCP, the Philippine Economic Zone Authority (PEZA) has developed standard disputes/complaint reporting and monitoring forms and a database for monitoring disputes/complaints inside the economic zones, including violence and killings.

III. Application of other legal and economic measures

– The Committee in its 2007 report, requested the government to provide further information on the impact and application of the Human Security Act (RA No. 9372) to the Convention.

TUCP has not received information on any application of this law on union activities.

–  Excessive use of contractual workers through outsourcing undermines the trade union movement.

In response to the challenges posed by the global financial crisis, the Department of Labor issued on January 30, 2009 Department Order (D.O.) No. 2 Series of 2009, Guidelines on the adoption of flexible work arrangement – as an option to retrenchment of workers. The trade unions expressed reservations. The TUCP warned about probably abuse by employers of provisions of the DO, and proposed a review of the D.O after six (6) months.

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[1] ESSENTIAL SERVICES — those the interruption of which would endanger the life, personal safety or health of the whole or part of the population (General Survey, para. 159). In this connection, legislation may establish a general definition of essential services and leave its interpretation in specific cases to a public authority or the courts. Or it may establish a procedure for determining whether an activity should be deemed to be an essential service, sometimes with the participation of employers’ and workers’ organizations. In some cases, the legislation includes a list of activities deemed to be essential services in which work stoppages are not permitted.