Category Archives: statement

Unions, church groups ask Supreme Court to review, junk en banc the controversial Dusit ruling

MEMBERS of different labor and church organizations trooped to the Supreme Court today to reiterate the call for the en banc review and reversal of the highly contentious ruling of its Second Division on the Dusit Hotel case, which was rebuked late last year by the International Labor Organization.

Penned on Nov. 11, 2008 by Associate Justice Presbitero Velasco Jr., the decision asserted that when the Dusit male workers went to work with shaven heads as a form of protest to the management’s blatant dilatory tactics in the collective bargaining talks, they were deemed guilty of staging an “illegal strike.”

Described even by the country’s rival workers’ groups as “highly anomalous and absurd” and a “very dangerous precedent and threat to labor and trade union rights,” the Velasco ruling thus upheld the earlier dismissal of 90 Dusit workers, including 29 union officers that virtually decimated the union leadership, and suspension of 136 others, among them women and other male employees who did not cut their hairs but were union members.

‘Martial law in the labor front’

Taking place during the month of the 39th anniversary of the declaration of martial law in the Philippines, the march-picket from Plaza Salamanca in Taft Ave. to the Supreme Court was also part of a series of campaigns of the broad-based Koalisyon Kontra Kontraktwalisasyon (Kontra) and the Church-Labor Conference (CLC) to highlight the continuing “martial rule in the labor front.”

“The plights of the ‘union-busted’ Dusit employees, the ‘outsourced’ PALEA (Philippine Airlines Employees Association) members, the ‘union/association-deprived’ Hanjin workers, the ‘perpetually casual’ SM salesladies, the ‘forever contractual’ call center/BPO agents, the unresolved killings of trade union activists, and the fast growing ranks of cheaper and docile non-regular and non-unionized workforce are testaments not only to the worsening neoliberal policies but also a confirmation that Marcos’ labor practices are still well-entrenched,” Kontra declared.

This was seconded by the Alliance of Progressive Labor (APL), a Kontra and CLC member, by explaining that “the character of the Marcos-era Labor Code and its litigious labor and industrial relations, aside from the still deeply-rooted corruption in government bureaucracy, including the courts, still exist.”

APL argued that “the Labor Code was designed not so much to provide Filipino workers with fundamental rights but to circumscribe them,” adding that “it remains basically the same despite all the omnibus and piecemeal amendments and ‘revisions’ that were passed since the fall of the Marcos dictatorship in 1986.”

Union-busting actually; ‘judicial legislation’

“What happened was obviously a brazen act to bust the union and to prevent the forging of a new and better CBA, hence a clear violation of the workers’ democratic and constitutional rights to organize and to collectively bargain,” Reynaldo Rasing, Nuwhrain-Dusit Hotel Nikko Chapter (NDHNC) president, said.

Rasing also stressed that there was no strike or actual and deliberate work stoppage as starting January 2002 the workers were in fact prevented by management from reporting for work, which forced them to instead hold a picket outside the hotel.

Holding peaceful and concerted mass actions, even shaving one’s head, are likewise legitimate articulations of freedom of speech or expression, and which were further prompted by the protracted CBA negotiations that began as early as October 2000, Rasing disclosed.

Other labor groups branded the Velasco ruling as a form of “judicial legislation,” when the high court apparently assumed or “usurped” the law-making powers of the government’s legislative branch by declaring a new meaning of “strike” or an illegal strike at that.

‘Diplomatic reproach’ from the ILO

After several months of deliberations, the Geneva-based Committee on Freedom of Association of the ILO – prodded by cases filed by trade unions in the Philippines and abroad – released its “Findings and Recommendations” on the Dusit case in November last year.

Although couched in polite or diplomatic words, the committee papers were in effect a scolding of the widely assailed Velasco verdict, reported the NDHNC, whose mother federation also belongs to Kontra and the CLC.

Some of the major issues pointed by the committee are:

It disagrees with the ruling that equated lawful and concerted actions (shaving of head and picketing) during a bargaining deadlock as “bargaining in bad faith.”

It considers the ruling that likens the shaving of heads to a strike as a violation of ILO Convention No. 87 (Freedom of Association and Protection of the Right to Organize).

It finds the compensation later awarded to 61 union members inadequate since the court even admitted in its ruling that none of them have been individually identified as having perpetrated illegal acts.

It declares that the court should have readily perceived that the mass dismissal of union officers and members would mean destroying the union. Hence, the government (not only the court), wittingly or unwittingly, is a party to union-busting by closing its eyes to the constitutional mandate that the state shall afford full protection to labor (Philippine Constitution, Article XVIII, Section 3).

APL condemns ASIAPRO, among other so-named “labor cooperatives”

In a letter to the Secretary of the Department of Labor and Employment (DOLE) Rosalinda D. Baldoz dated 18 July 2011, the Alliance of Progressive Labor (APL) claimed “labor cooperatives make mockery of the labor code and the doctrines of the Supreme Court.”

APL is alarmed that the workers deployed by these perceived LOCs, including ASIAPRO, in several workplaces are not recognized properly, if at all, as regular employees even if the latter are directly employed by such entities or the companies wherein they supply workers.

“These labor cooperatives were established obviously to circumvent the Labor Code and the doctrines of the Supreme Court,” APL Deputy Secretary General Edwin Bustillos said in a statement.

This is despite the fact that these cooperatives deploy workers in companies that retain the “right to control the means by which the work is done,” which “control test” alone is sufficient to establish employer-employee relationship. The “control test” doctrine has always been the ruling of the high court when it comes to labor-only contracting.

In the latter parts of 2010, the infamous inclusion of the name ASIAPRO in the list of establishments that are said to be operating as labor-only contractors (LOCs) in the guise of a workers’ cooperative prompted trade unionists and researchers to probe the unchecked functioning of workers’ cooperatives in the Philippines. It was just recently, however, when a much brighter light was thrown on these “labor cooperatives” when the labor sector in the country made sense of their burgeoning market.

The APL is thus eager to see the labor department conduct investigations, under their powers in Article 128 of the Labor Code of the Philippines, and visit the workplaces to which these cooperatives deploy their workers.

A Message of Solidarity to LO-Norway and the Norwegian People

The Labor Education and Research Network and its affiliates offer their sincerest sympathies and condolences to the families, friends and loved ones of the victims of the twin barbaric and cowardly acts committed against Labor Party members and government employees in Oslo as well as the youth who have been murdered treacherously in Utoeya Island in Norway.

Reports coming fom the police and the media have recorded the casualties to be 76 dead and many others wounded (initially 93 people were reported dead).

LEARN nevertheless condemns the act in the strongest possible sense as it turned out that the sole gunman and suspected perpetrator of the two events has an even deeper political agenda than mere terrorism and blatant, if mad, show of force. We cannot just let anyone kill and cause terror for an intolerant, extremist and undemocratic purpose of annihilating proponents of ethnic multiculturalism and religious tolerance, not to mention members of a democratic Labor party in one of Europes’ most peaceful countries. LEARN continues to uphold the ideals of democracy and social tolerance even if it means harboring contempt among those who cannot understand the essence of these values.

No to reductionism in political views! No to terrorism and violence against civilians!

NUWHRAIN-Dusit Hotel Nikko Chapter Opposes Supreme Court Associate Justice Carpio Morales’ nomination as Ombudsman

In a letter to the Judicial and Bar Council (JBC), the Dusit Nikko Chapter of the APL- and IUF-affiliated National Union of Workers in Hotel, Restaurant and Allied Industries (NUWHRAIN) vehemently opposed the inclusion of Associate Justice Conchita Carpio Morales in the list of candidates for the position of Ombudsman.

The group’s intractable opposition to her nomination as Ombudsman is based on the palpable and consistent anomalies with regard to the case of the 92DusitThani Hotel Workers, who are now seeking justice against the decision of the Supreme Court Second Division on G.R. No. 163942 dated November 11, 2008 or commonly known as “The Dusit Case”.

While Justice Presbitero Velasco was the ponente, Morales was among the five (5) Associate Justices who rendered the decision on the abovementioned case against the 92 former Dusit Hotel workers. The decisionof the 2nd Division, has in fact turned topsy-turvy the customary concepts of a strike, which – as any new union member who had undergone a basic labor seminar knows and as any law student who attended labor law class knows – is very much different from a picket. The Velasco ruling is clearly a form of “judicial legislation,” because the SC in effect, amended the statutory definition of “strike” when it deemed the shaving of one’s hair to amount to an “illegal strike”!

More than 20 labor federations and unions intervened in the case and repeatedly filed motions for reconsiderations because of the implications of this sordid decision of the Second Division. It is, in fact, expressly stipulated in Article VIII, Section 4 (3) of the 1987 Constitution, which says that when there’s a doctrinal or constitutional issues involved, it must be reviewed or resolved by the Supreme Court en banc.

The ILO Committee on Freedom of Association wherein the DusitThani Hotel case was one of the 8 cases investigated by the ILO High Level Mission in September 2009, in its 358th report dated November 2010, found that the Philippine Government violated ILO Conventions 87 and 98, to wit:

“862. The Committee considers that…generally, a strike is a temporary work stoppage (slowdown) willfully effected by one or more groups of workers. In the present case, while shaving their heads, the employees had not stopped working. 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.”

Justice Carpio-Morales and the rest of the 2nd Division refused to rule on that fundamental issue, even as the same was brought to her attention many times-at the risk of the lawyers being held in contempt.

She approved the February 9, 2009 Resolution denying the Motion for Reconsideration even though the Second Division was not validly constituted for lack of one member. Associate Justice Ruben Reyes retired on January 2, 2009 and his replacement had not been designated as of February 9, 2009.

The Minute Resolution dated February 9, 2009 included Associate Justice Ruben Reyes as one of the justices who decided on the Motion for Reconsideration even if he retired a month earlier on January 02, 2009. Division Clerk of Court Ludichi Yasay-Nunag later admitted that Justice Ruben Reyes did not participate in the approval of the Resolution as the latter already retired. There is no doubt then that said Resolution is null and void because there was no Second Division to speak of. The Constitution requires the Supreme Court to sit in a Division of five.

Despite repeated Motion for Reconsideration and raised in issue the validity of the February 9, 2009 Resolution for lack of a fifth member, again just like the earlier constitutional issue, the Second Division REFUSED TO DECIDE on the issue.

Her participation in the assailed resolution casts a shadow of doubt on Associate Justice ConchitaCarpio Morales integrity and competence which the position of the Ombudsman requires and demands! said Larry Javier the Vice President of NUWHRAIN-DHNC.

Javier further stated she had countless opportunities to address this issue. Apparently, she saw no reason to address a fundamental constitutional issue, even one which destroyed the livelihoods and throw away the years of service by ordinary workers and one which threatens that of many workers other than those from DusitThani Hotel.

A Supreme Court Justice who cannot understand that four (4) is less than five (5) should not be allowed to become an Ombudsman.

A Supreme Court Justice who refused to recognize the fact that January 2, 2009 actually occurred before February 9, 2009 should not be allowed to become an Ombudsman!