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86 principles of international labor law violated!

In relationship to the continuing labor dispute between Nestlé-Philippines (backed up by the capitalist state) and the workers employed at the Nestlé Cabuyao factory in Laguna (and their union, the UFE-DFA-KMU), at least eighty-six international principles on freedom of association (set forth below) can be identified which are directly applicable and which the Philippine Government has flagrantly violated, both directly by the actions of its own repressive apparatuses against the Nestlé Cabuyao workers, and by omission through by its willful failure to enforce them against Nestlé and the latter's own conduct and repressive actions against the workers.

These are bourgeois value-laden principles which, like the ILO machinery that produces them and supervises their application, reproduce relations of capitalist domination. Nevertheless, until the class struggle achieves genuine international proletarian norms, these will suffice for purposes of defining the rights the violation of which can be considered labor crimes against the working class.

[What we have concretely is Case No. 2528, based on a well-conceived and crafted complaint filed by the KMU, in which the CFA, invoking a number of these principles, has drawn conclusions and issued recommendations requesting action by the Philippine Government, and which partly encompass the Cabuyao workers' struggle. These are being ignored by the government (See the adjoining page of this site).

At the national level, the Cabuyao workers' relentless battle in the Philippine court system has yielded three Supreme Court rulings against the company: a Ruling on February 4, 1991 (G.R. No. 90231), a Decision on August 22, 2006, and a Resolution on March 3, 2008. The company has contemptibly ignored these orders or tied them up in frivolous appeals, and the subservient Philippine State has refused to enforce them.

In the United States, a
Generalized System of Preferences petition against the Philippine Government, filed by the International Labor Rights Forum with the U.S. Trade Representative in 2007, has gotten nowhere.]

The source of the following 86 principles is the Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fifth (revised) edition (2006):

(Consult the browsable Web Version)

Recueil de décisions du Comité de la liberté syndicale
Recopilación de decisiones del Comité de libertad sindical

...
Fundamental obligations of member States in respect of human and trade union rights

19. Trade union rights, like other basic human rights, should be respected no matter what the level of development of the country concerned.

General principles

33. A genuinely free and independent trade union movement can only develop where fundamental human rights are respected.

34. The Government has the duty to defend a social climate where respect for the law reigns as the only way of guaranteeing respect for and protection of individuals.

35. All appropriate measures should be taken to guarantee that, irrespective of trade union affiliation, trade union rights can be exercised in normal conditions with respect for basic human rights and in a climate free of violence, pressure, fear and threats of any kind.

36. For the contribution of trade unions and employers’ organizations to be properly useful and credible, they must be able to carry out their activities in a climate of freedom and security. This implies that, in so far as they may consider that they do not have the basic freedom to fulfill their mission directly, trade unions and employers’ organizations would be justified in demanding that these freedoms and the right to exercise them be recognized and that these demands be considered as coming within the scope of legitimate trade union activities.

39. It should be the policy of every government to ensure observance of human rights.

41. Allegations of criminal conduct should not be used to harass trade unionists by reason of their union membership or activities.

Right to life, security and the physical and moral integrity of the person

42. The right to life is a fundamental prerequisite for the exercise of the rights contained in Convention No. 87.

43. Freedom of association can only be exercised in conditions in which fundamental rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed.

44. The rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected.

46. A climate of violence, such as that surrounding the murder or disappearance of trade union leaders, or one in which the premises and property of workers and employers are attacked, constitutes a serious obstacle to the exercise of trade union rights; such acts require severe measures to be taken by the authorities.

48. The killing, disappearance or serious injury of trade union leaders and trade unionists requires the institution of independent judicial inquiries in order to shed full light, at the earliest date, on the facts and the circumstances in which such actions occurred and in this way, to the extent possible, determine where responsibilities lie, punish the guilty parties and prevent the repetition of similar events.

49. In cases in which the dispersal of public meetings by the police has involved loss of life or serious injury, the Committee has attached special importance to the circumstances being fully investigated immediately through an independent inquiry and to a regular legal procedure being followed to determine the justification for the action taken by the police and to determine responsibilities.

50. In the event of assaults on the physical or moral integrity of individuals, the Committee has considered that an independent judicial inquiry should be instituted immediately with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts.

51. In the event that judicial investigations into the murder and disappearance of trade unionists are rarely successful, the Committee has considered it indispensable that measures be taken to identify, bring to trial and convict the guilty parties and has pointed out that such a situation means that, in practice, the guilty parties enjoy impunity which reinforces the climate of violence and insecurity and thus has an extremely damaging effect on the exercise of trade union rights.

52. The absence of judgements against the guilty parties creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights.

53. The Committee emphasized the need, in a case in which judicial inquiries connected with the death of trade unionists seemed to be taking a long time to conclude, of proceedings being brought to a speedy conclusion.

58. A climate of violence, coercion and threats of any type aimed at trade union leaders and their families does not encourage the free exercise and full enjoyment of the rights and freedoms set out in Conventions Nos. 87 and 98. All States have the undeniable duty to promote and defend a social climate where respect of the law reigns as the only way of guaranteeing respect for and protection of life.

59. Attacks against trade unionists and trade union premises and property constitute serious interference with trade union rights. Criminal activities of this nature create a climate of fear which is extremely prejudicial to the exercise of trade union activities.

60. The environment of fear induced by threats to the life of trade unionists has inevitable repercussions on the exercise of trade union activities, and the exercise of these activities is possible only in a context of respect for basic human rights and in an atmosphere free of violence, pressure and threats of any kind.

Arrest and detention of trade unionists

61. The detention of trade union leaders or members for trade union activities or membership is contrary to the principles of freedom of association.

62. The arrest, even if only briefly, of trade union leaders and trade unionists, and of the leaders of employers’ organizations, for exercising legitimate activities in relation with their right of association constitutes a violation of the principles of freedom of association.

63. Measures depriving trade unionists of their freedom on grounds related to their trade union activity, even where they are merely summoned or questioned for a short period, constitute an obstacle to the exercise of trade union rights.

64. The detention of trade unionists for reasons connected with their activities in defence of the interests of workers constitutes a serious interference with civil liberties in general and with trade union rights in particular.

Rights of assembly and demonstration
...
B. Public meetings and demonstrations

133. Workers should enjoy the right to peaceful demonstration to defend their occupational interests.

139. Trade union rights include the right to organize public demonstrations.

140. The authorities should resort to the use of force only in situations where law and order is seriously threatened. The intervention of the forces of order should be in due proportion to the danger to law and order that the authorities are attempting to control and governments should take measures to ensure that the competent authorities receive adequate instructions so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations which might result in a disturbance of the peace.

150. In general, the use of the forces of order during trade union demonstrations should be limited to cases of genuine necessity.

Right of organizations freely to organize their activities and to formulate their programmes

General principles

496. Any provision which gives the authorities, for example, the right to restrict the activities and objects pursued by trade unions for the furtherance and defence of the interests of their members would be incompatible with the principles of freedom of association.

Right to strike

Importance of the right to strike and its legitimate exercise

521. The Committee has always recognized the right to strike by workers and their organizations as a legitimate means of defending their economic and social interests.

522. The right to strike is one of the essential means through which workers and their organizations may promote and defend their economic and social interests.

Prerequisites

549. Legislation which provides for voluntary conciliation and arbitration in industrial disputes before a strike may be called cannot be regarded as an infringement of freedom of association, provided recourse to arbitration is not compulsory and does not, in practice, prevent the calling of the strike.

Recourse to compulsory arbitration

564. Compulsory arbitration to end a collective labour dispute and a strike is acceptable if it is at the request of both parties involved in a dispute, or if the strike in question may be restricted, even banned, i.e. in the case of disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population.

565. In as far as compulsory arbitration prevents strike action, it is contrary to the right of trade unions to organize freely their activities and could only be justified in the public service or in essential services in the strict sense of the term.

566. A provision which permits either party unilaterally to request the intervention of the labour authority to resolve a dispute may effectively undermine the right of workers to call a strike and does not promote voluntary collective bargaining.

567. The right to strike would be affected if a legal provision were to permit employers to submit in every case for compulsory arbitral decision disputes resulting from the failure to reach agreement during collective bargaining, thereby preventing recourse to strike action.

568. The Committee considers that a system of compulsory arbitration through the labour authorities, if a dispute is not settled by other means, can result in a considerable restriction of the right of workers’ organizations to organize their activities and may even involve an absolute prohibition of strikes, contrary to the principles of freedom of association.

Cases in which strikes may be restricted or even prohibited, and compensatory guarantees

D. Compensatory guarantees in the event of the prohibition of strikes in the public service or in essential services

Responsibility for declaring a strike illegal

628. Responsibility for declaring a strike illegal should not lie with the government, but with an independent body which has the confidence of the parties involved.

Back-to-work orders, the hiring of workers during a strike, requisitioning orders

632. The hiring of workers to break a strike in a sector which cannot be regarded as an essential sector in the strict sense of the term, and hence one in which strikes might be forbidden, constitutes a serious violation of freedom of association.

635. The use of the military and requisitioning orders to break a strike over occupational claims, unless these actions aim at maintaining essential services in circumstances of the utmost gravity, constitutes a serious violation of freedom of association.

636. The employment of the armed forces or of another group of persons to perform duties which have been suspended as a result of a labour dispute can, if the strike is lawful, be justified only by the need to ensure the operation of services or industries whose suspension would lead to an acute crisis.

Interference by the authorities during the course of the strike

641. The intervention of the army in relation to labour disputes is not conducive to the climate free from violence, pressure or threats that is essential to the exercise of freedom of association.

Police intervention during the course of the strike

643. The use of police for strike-breaking purposes is an infringement of trade union rights.

644. In cases of strike movements, the authorities should resort to the use of force only in grave situations where law and order is seriously threatened.

645. While workers and their organizations have an obligation to respect the law of the land, the intervention by security forces in strike situations should be limited strictly to the maintenance of public order.

Pickets

648. The action of pickets organized in accordance with the law should not be subject to interference by the public authorities.

649. The prohibition of strike pickets is justified only if the strike ceases to be peaceful.

Sanctions

A. In the event of a legitimate strike

661. The dismissal of workers because of a strike constitutes serious discrimination in employment on grounds of legitimate trade union activities and is contrary to Convention No. 98.

662. When trade unionists or union leaders are dismissed for having exercised the right to strike, the Committee can only conclude that they have been punished for their trade union activities and have been discriminated against.

663. Respect for the principles of freedom of association requires that workers should not be dismissed or refused re-employment on account of their having participated in a strike or other industrial action. It is irrelevant for these purposes whether the dismissal occurs during or after the strike.

666. The use of extremely serious measures, such as dismissal of workers for having participated in a strike and refusal to re-employ them, implies a serious risk of abuse and constitutes a violation of freedom of association.

C. In cases of peaceful strikes

671. The authorities should not resort to arrests and imprisonment in connection with the organization of or participation in a peaceful strike; such measures entail serious risks of abuse and are a grave threat to freedom of association.

673. The peaceful exercise of trade union rights (strike and demonstration) by workers should not lead to arrests and deportations.

Protection against anti-union discrimination

General principles

769. Anti-union discrimination is one of the most serious violations of freedom of association, as it may jeopardize the very existence of trade unions.

770. No person shall be prejudiced in employment by reason of trade union membership or legitimate trade union activities, whether past or present.

771. No person should be dismissed or prejudiced in employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment.

Forms of discrimination

C. Discrimination during employment

785. The non-renewal of a contract for anti-union reasons constitutes a prejudicial act within the meaning of Article 1 of Convention No. 98.

D. Discriminatory dismissal

789. The dismissal of workers on grounds of membership of an organization or trade union activities violates the principles of freedom of association.

793. Not only dismissal, but also compulsory retirement, when imposed as a result of legitimate trade union activities, would be contrary to the principle that no person should be prejudiced in his or her employment by reason of trade union membership or activities.

795. Acts of anti-trade union discrimination should not be authorized under the pretext of dismissals based on economic necessity.

796. The application of staff reduction programmes musts not be used to carry out acts of anti-union discrimination.

797. A corporate restructuring should not directly or indirectly threaten unionized workers and their organizations.

Need for rapid and effective protection

813. Legislation should lay down explicitly remedies and penalties against acts of anti-union discrimination in order to ensure the effective application of Article 1 of Convention No. 98.

814. Where a government has undertaken to ensure that the right to associate shall be guaranteed by appropriate measures, that guarantee, in order to be effective, should, when necessary, be accompanied by measures which include the protection of workers against anti-union discrimination in their employment.

817. The government is responsible for preventing all acts of anti-union discrimination and it must ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned.

818. The basic regulations that exist in the national legislation prohibiting acts of anti-union discrimination are inadequate when they are not accompanied by procedures to ensure that effective protection against such acts is guaranteed.

820. Respect for the principles of freedom of association clearly requires that workers who consider that they have been prejudiced because of their trade union activities should have access to means of redress which are expeditious, inexpensive and fully impartial.

824. The Committee has recalled the need to ensure by specific provisions accompanied by civil remedies and penal sanctions the protection of workers against acts of anti-union discrimination at the hands of employers.

827. In a case in which proceedings concerning dismissals had already taken 14 months, the Committee requested the judicial authorities, in order to avoid a denial of justice, to pronounce on the dismissals without delay and emphasized that any further undue delay in the proceedings could in itself justify the reinstatement of these persons in their posts.

828. Complaints against acts of anti-union discrimination should normally be examined by national machinery which, in addition to being speedy, should not only be impartial but also be seen to be such by the parties concerned, who should participate in the procedure in an appropriate and constructive manner.

Reinstatement of trade unionists in their jobs

837. No one should be subjected to anti-union discrimination because of legitimate trade union activities and the remedy of reinstatement should be available to those who are victims of anti-union discrimination.

839. In cases of the dismissal of trade unionists on the grounds of their trade union membership or activities, the Committee has requested the government to take the necessary measures to enable trade union leaders and members who had been dismissed due to their legitimate trade union activities to secure reinstatement in their jobs and to ensure the application against the enterprises concerned of the corresponding legal sanctions.

840. In many cases, the Committee has requested the government to ensure that the persons in question are reinstated in their jobs without loss of pay.

846. In certain cases, the Committee has requested the government to carry out independent investigations of dismissals and, if it finds that they constitute anti-trade union acts, to take measures to ensure the reinstatement of the workers concerned.

Collective bargaining

Subjects covered by collective bargaining

912. Measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with Convention No. 98.

913. Matters which might be subject to collective bargaining include the type of agreement to be offered to employees or the type of industrial instrument to be negotiated in the future, as well as wages, benefits and allowances ... these matters should not be excluded from the scope of collective bargaining by law.

928. Article 4 of Convention No. 98 in no way places a duty on the government to enforce collective bargaining, nor would it be contrary to this provision to oblige social partners, within the framework of the encouragement and promotion of the full development and utilization of collective bargaining machinery, to enter into negotiations on terms and conditions of employment.

929. Although nothing in Article 4 of Convention No. 98 places a duty on the government to enforce collective bargaining by compulsory means with a given organization, as such an intervention would clearly alter the voluntary nature of collective bargaining, this does not mean that governments should abstain from any measure whatsoever aiming to establish a collective bargaining mechanism.

Mechanisms to facilitate collective bargaining

932. The bodies appointed for the settlement of disputes between the parties to collective bargaining should be independent, and recourse to these bodies should be on a voluntary basis.

The principle of bargaining in good faith

935. 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.

937. The principle that both employers and trade unions should negotiate in good faith and make efforts to reach an agreement means that any unjustified delay in the holding of negotiations should be avoided.

940. Mutual respect for the commitment undertaken in collective agreements is an important element of the right to bargain collectively and should be upheld in order to establish labour relations on stable and firm ground.

Restrictions on the principle of free and voluntary bargaining

A. Compulsory arbitration

992. 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.

993. Provisions which establish that, failing agreement between the parties, the points at issue in collective bargaining must be settled by the arbitration of the authority are not in conformity with the principle of voluntary negotiation contained in Article 4 of Convention No. 98.

B. Intervention by the authorities in collective bargaining

General principles

(b) The drafting of collective agreements

1003. The Committee recognizes that there comes a time in bargaining where, after protracted and fruitless negotiations, the authorities might be justified in stepping in when it is obvious that the deadlock in bargaining will not be broken without some initiative on their part.

1004. With reference to the above principle, the Committee has however expressed the view that the mere existence of a deadlock in a collective bargaining process is not in itself a sufficient ground to justify an intervention from the public authorities to impose arbitration on the parties to the labour dispute. Any intervention by the public authorities in collective disputes must be consistent with the principle of free and voluntary negotiations; this implies that the bodies appointed for the settlement of disputes between the parties to collective bargaining should be independent and recourse to these bodies should be on a voluntary basis, except where there is an acute national crisis.






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