NEW ILO RECCOMENDATION
The new Recommendation (November 2012) is written in reference to the last Recommendation (March 2010), therefore, in the following we are going to quote the last Recommendation first and take up the new Recommendation thereafter so that you can well understand the new ILO Recommendation.
THE LAST RECOMMENDATION (March 2010)
(a) The Committee once again requests the Government to initiate discussions in order to reach a solution with respect to approximately 100 workers who did not previously accept the compensation package offered by the company in their previous employment including, if their reinstatement is not possible as determined by a competent judicial authority, the payment of adequate compensation. The Committee further requests the Government to inform it of the outcome of the complainant‘s urgent plea before the Supreme Court requesting a review of the latter‘s 19 October 2007 and 17 March 2008 decisions.
(b) The Committee requests the Government to keep it informed of developments regarding the initiatives to find out-of-the-box solutions with a view to dismissing the criminal cases involving members of the TMPCWA, as well as on the judicial proceedings relating to the two criminal cases.
(c) The Committee requests the Government to inform it of the outcome of the complainant‘s motion for reconsideration of the Court of Appeals’ 2 April 2008 decision confirming the TMPCLO‘s certification as the sole and exclusive bargaining agent. The Committee further expresses the firm expectation that the Court of Appeals, should it grant the complainant‘s motion, will give due consideration to the Committee‘s previous comments on the issue of certification.
(d) The Committee requests the Government to continue to pursue measures to ensure the expeditious investigation, prosecution, and resolution of pending cases concerning the alleged harassment and assassination of labour leaders and trade union activists, and all other measures necessary to ensuring that freedom of association may be exercised by all workers‘ organizations, including the complainant, in a climate free from violence, harassment, and threats of intimidation of any kind, and to keep it informed of the progress made in this regard.
(e) The Committee requests the Government to initiate a full, in-depth and independent inquiry into the complainant‘s allegations of discrimination against its members and, if they are found to be true, to take the necessary measures to ensure that the persons concerned are adequately compensated so as to constitute sufficiently dissuasive sanctions against future acts of anti-union discrimination. It further requests the Government to keep it informed of any court proceedings concerning these allegations.
THE NEW RECCOMENDATION (November 2012)
Recommendation 1 – IMPORTANT! –
“184. The Committee notes the detailed information provided by the complainant and the Government’s reply on a number of points. The Committee notes that there is a divergence of views between the complainant and the company with respect to the legality and anti-union character of the dismissals arising out of an incident in June 2010, but observes the Government’s indication that the complaint filed with the NLRC was dismissed for lack of merit. The Committee further observes the indication in the complainant’s latest communication that it has filed an appeal against the NLRC dismissal. The Committee requests the Government to keep it informed of the outcome.”
As a good result of TMPCWA’s efforts that you have submitted your reports to CFA that the dismissal of 4 (plus 1 suspended) is a discrimination and union interfere to TMPCWA in reference to item (e) of the last Recommendation, ILO has come up with this Recommendation. We wan to say, “You (CFA, ILO) made a good job!” We can see it in such way that item (e) of the last Recommendation has been taken up by changing its shape into the one like this. But while all the other items of the new Recommendation are written in reference to the last Recommendation, this item is not written in such way. That is because, while item (e) of the last Recommendation concerns discrimination to inside members of TMPCWA that had arisen after TMPCWA’s initial complaint to ILO but before HLM, this item of the new Recommendation deals with the issue that arose after that. In addition, the issue (dismissal of 4 plus suspension of 1) has been taken up although TMPCWA filed no complaint about that. It seems that CFA considered this issue as the one that emerged as a concentrated union-busting that is more serious than discrimination. So, it seems that CFA has taken up this issue knowing that taking it up may look a little unreasonable, and for this reason has dropped this time item (e) of the last Recommendation on the other hand, since TMPCWA submitted no particular report on discrimination after the last Recommendation. We judge that we cannot help it that item (e) of the last Recommendation has been dropped. Even in exchange for that, it is good the issue of the dismissal of 4 has been taken up, we consider. But t should be noted that the contents of the recommendation is that CFA at the moment only remains with the stance of watching the progress of the case pending before NLRC and CFA and thus requests the Government to keep CFA informed thereof.
Recommendation 2 – IMPORTANT! –
“185. As regards recommendation (a), the Committee notes that the complainant is of the view that the absence of progress is due to the lack of will on the part of the company to implement the recommendations, and that the Government believes that the issue can no longer be worked out, given that the company recently communicated in writing that reinstatement is not possible since the Supreme Court has ruled with finality on the validity of the dismissal and on the non-entitlement of the dismissed workers to severance pay and proposed financial assistance (accepted by 141 of the 233 dismissed TMPCWA workers according to the company) and other forms of assistance. Reiterating the freedom of association principles it enounced and the conclusions it made in this regard when it examined this case at its meeting in March 2010 [see 356th Report, paras 1215–16], the Committee urges the Government to pursue its efforts to intercede with the parties so as to reach an equitable negotiated solution in this longstanding case with respect to the approximately 100 workers who did not previously accept the compensation package offered by the company in their previous employment including, if their reinstatement is no longer possible for objective and compelling reasons, the payment of adequate compensation. The Committee again requests the Government to inform it of the outcome of the complainant’s urgent plea requesting a review of the Supreme Court 19 October 2007 and 17 March 2008 decisions and to supply a copy of the decision.”
This is the recommendation on the dismissal of 233. Item (a) of the last Recommendation was issued n the basis that CFA had no recognition that the Supreme Decision had been released (Seemingly the government had not yet so informed CFA); in short item (a) of the recommendation was issued on the premise that the Supreme Court decision had not yet released. For this time it was not expected that such favorable condition would last; for this reason we confirmed from Ms Karen Curtis of CFA when she came to Japan in October last year that the case was not closed yet (it is still alive and CFA is reviewing the report of the Government). Subsequently we have been keenly watching with the hope and anxiety whatever result may come out. Greatly enough, the result is that the contents of the past recommendation, namely “reinstatement, or if it is impossible, adequate monetary compensation” is maintained. Namely, noting the allegation of the complaint (TMPCWA) that the recommendation is not implemented due to the lack of will to do so on the part of the employer as well as the allegation of the Government that there is nothing they can do any more as the Supreme Court decision was already released to the effect that the dismissal is legitimate and further that the dismissed are not entitled to receive severance pay and also because the company nevertheless expressed that they would provide financial assistance pay to the dismissed, CFA has nevertheless issued such recommendation. This is worth deep appreciation and special mention. As the ground for this recommendation CFA points out (i) the freedom of association principles it enounced” and “the conclusions it made in this regard when it examined this case at its meeting in March 2010 [see 356th Report, paras 1215–16].” So we quote those paragraphs 1215-16 from the last Recommendation as shown below so that you could (should) read them again appreciatively enough. In short it says in essence the dismissal by Toyota was too cruel. In other words, CFA has issued this recommendation unshakable confidence. We should say that, as far as CFA is concerned, its extremely low rating has come to the utmost against the union-buster company Toyota, which is caring about its reputation. Even the fact that Toyota got an award of a good enterprise in Asian Region from ILO did not affect the stance of CFA at all. By the way, the new recommendation does not exactly say “reinstatement to original workplace” but instead says amply “reinstatement in the previous employment.” This is also the same in the last Recommendation and there would be no problem about this. Another noteworthy point in the new Recommendation is that CFA urges an equitable solution to be reached by negotiation between the parties and urges the Government to pursue efforts to intercede such negotiation. Furthermore, it is noteworthy that, in the phrase “if reinstatement is impossible, an equitable negotiated solution,” the word “impossible” is conditioned as “impossible for objective and compelling reasons.”
Recommendation 3 – IMPORTANT! –
“186. As regards recommendation (b), the Committee notes the Government’s description of its failed attempt to approach the complainants in September 2010 and the Government’s indication that, while it had managed to extract verbal assurances from both parties on the possibility of court-ordered withdrawal of the cases, the abovementioned incident in the Toyota plant on 5 June 2010 set back all initial progress. The Committee further notes the additional information provided by the complainant concerning the latest hearings in this case in 2012. The Committee trusts that these proceedings – which were initiated over ten years ago – will finally be dismissed or withdrawn given the time that has elapsed and the conclusions made by the Committee on this matter over the years.”
This is the recommendation on the criminal cases. While in the last Recommendation CFA expected the Government to step forward to realize the withdrawal of the cases as the first step of “out-of-the-box solution” that had been voluntarily outspoken by the Government, if we read the new Recommendation carefully, we can read it as such that the Government argued that TMPCWA’s production disruption (on June 5, 2010), which led to the dismissal of 4, had killed a good atmosphere that had got started toward possible withdrawal. Noting such argument of the Government, CFA has nevertheless issued this recommendation by saying that CFA trust the cases will be finished as dismissal by court or voluntary withdrawal by the parties for reasons (i) more than 10 years has elapsed since the cases were initiated and (ii) CFA firmly remains with the conclusions they have made years back. We are grateful for this.
“187. As regards recommendation (c), the Committee notes that the Supreme Court issued its final judgment on the certification election case denying the Motion for Reconsideration of the TMPCWA. While noting with regret that little consideration appears to have been given to its previous conclusions on the issue of certification, the Committee now observes from the Government’s latest reply that the TMPCLO won the election conducted on 12 July 2011 and was certified as the sole and exclusive bargaining agent of the Toyota rank and file employees, absent any election protest.”
This is the recommendation regarding the issue of certification of the representative union. However, exactly speaking this is not formed in a recommendation requiring any corrective step to be taken but is simply written to notify CFA’s conclusion of judgment (though exactly speaking, it does not take a form of notifying but takes the form of noting the Government’s report regarding CE issue). Though it is very regrettable, we think it cannot be helped. The reason is that what the recommendation wants to say is, if best guessing also what is not mentioned therein, thought to be as follows: That is, as a matter of real existence at present (10 years after the issue first arose), though there may be a lot of circumstances, there is no present merit (interest, benefit) in TMPCWA’s complaint in that TMPCWA took back its already-filed application for the last CE during the free competition period after the expiration of TMPCLO’s CBA and that TMPCLO won CE with a big balance to the votes gained by NOW and was not subjected to any electoral protest. In this regard it might be theoretically possible (so as to admit merit, interest or benefit favorable to TMPCWA) to raise such argument that by definition the very cause that gave rise to all the present circumstances had been in the 2000 CE, therefore if TMPCWA is retroactively admitted as the winner, then the present circumstances (legal relationship) must have been interpreted differently. But it is only a matter of logic and does not suit for the real existence today (in which all the rank and file employees are subject to TMPCLO’s CBA, including the members of TMPCWA).
“188. As regards recommendation (d), given that part of the allegations in this case refer to general harassment and militarization of the workplace being addressed in Case No. 2745, the Committee will pursue its further examination of these matters within the framework of Case No. 2745.”
This is a recommendation regarding harassment and militarization of workplace as commonly seen in many companies including Toyota. As CFA mentions that they will examine this issue in the other case (No. 2745, which is also the Philippine case, of course), it would be unnecessary that we dare to take issue with this. By the way, as we first above mentioned, item (e) of the last Recommendation has been dropped in the new Recommendation, which would be helpless also.
SUMMARY – IMPORTANT! –
In summary, the new Recommendation consists of 3 items of recommendation:
1) Regarding the dismissal of 233 who are refusing to receive financial assistance from the company, CFA urges the Government to intercede negotiation between TMPCWA and Toyota to reach equitable solution, including reinstatement to their previous employment, and if it is by all means impossible, adequate monetary compensation;
2) Regarding the criminal cases, CFA trusts that the cases will be finished either by way of dismissal by court order or voluntary withdrawal by the parties; and
3) Regarding the dismissal of 4, CFA watches the progress of the case before NLRC and CA in the Philippines
As an overall evaluation, we do not think that it would be impossible that we could expect any much better recommendation.
So, we should consider how to make best use of the new Recommendation on this basis,
For this purpose let us, both TMPCWA and Support Group, study and think on each side respectively for a while. We, Support Group will propose any idea to TMPCWA in near future for joint review and discussion.
QUOTE FROM THE LAST RECCOMENDATION
“1215. In respect of the Supreme Court’s denial of the complainant’s motion for reconsideration of its 19 October 2007 decision, the Committee recalls that during the first examination of this case, both the complainant and the Government indicated that the strike in question was peaceful and the Government even referred at one point in its reply to the dismissal of participants in the peaceful demonstration [332nd Report, para. 884]. The Committee had found in the past, with regard to the reasons for dismissal, that the activities of trade union officials should be considered in the context of particular situations which may be especially strained and difficult in cases of labour disputes and strike action [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 811]. The Committee further recalls that sanctions, such as massive dismissals in respect of strike actions, should remain proportionate to the offence or fault committed [see 329th Report, para. 738 and 332nd Report, para. 886]. The Committee recalls with regard to the TMPCWA officers in particular, that they were declared to have forfeited their employment status by the NLRC because they decided to organize the strike of 23 and 29 May 2001 contrary to the Secretary of DOLE’s assumption of jurisdiction order of 10 April 2001. However, as noted by the Committee during the first examination of this case, such an order is not compatible with the principles of freedom of association and therefore, the union officers concerned cannot be sanctioned for having ignored it [332nd Report, para. 886]. The Committee recalls that it has always considered that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association [see 332nd Report, para. 886] and had emphasized that the same holds with regard to trade union members.”
“1216. In its last examination of the case, the Committee had expressed its regret that the Supreme Court appears to consider that the staging of peaceful pickets should be sanctioned as a violation of an assumption of jurisdiction order, itself contrary to freedom of association principles, and as liable to lead to a worsening of an already deteriorated situation; it had also emphasized that the action of picketing organized in accordance with the law should not be subject to interference by the public authorities, and that the prohibition of strike pickets is justified only if the strike ceases to be peaceful [see Digest, op. cit., paras 648–649]. Bearing in mind the serious consequences of the dismissals for the workers concerned, the Committee had once again requested the Government to initiate discussions in order to consider the possible reinstatement of the 122 workers who did not previously accept the compensation package offered by the company, in their previous employment or, if reinstatement is not possible, as determined by a competent judicial authority, the payment of adequate compensation [350th Report, para. 173]. In light of the above, the Committee is bound to express its regret that the Supreme Court denied the complainant’s motion for reconsideration of the 19 October 2007 decision. The Committee notes from the mission report that the complainant had expressed to the mission its willingness to negotiate a solution with respect to the dismissed workers. Further noting from the report that representatives of the company had informed the mission that the company was not in a position to hire any of the dismissed workers, under any circumstances, the Committee – recalling once again the serious consequences of the dismissals for the workers concerned – once again requests the Government to initiate discussions in order to reach a solution regarding reinstatement with respect to some 100 workers who did not previously accept the compensation package offered by the company in their previous employment including, if their reinstatement is not possible as determined by a competent judicial authority, the payment of adequate compensation. The Committee further requests the Government to inform it of the outcome of the complainant’s urgent plea before the Supreme Court requesting a review of the latter’s 19 October 2007 and 17 March 2008 decisions.”