The National Union of Workers in Hotel, Restaurants and Allied Industries (NUWHRAIN), a member of the IUF-affiliated Alliance of Progressive Labor (APL), recently released a manuscript outlining the progress of the campaign to reverse the notorious "Velasco Decision" of the 2nd Division of the Philippine Supreme Court. For a copy of the said primer, please click the link below:
Primer%20on%20Dusit%20Case%20-%20Hoy%20Kalbo%20Tanggal%20ka%20sa%20... - Primer on the campaign "Reverse the Velasco Decision on the Dusit Hotel Case" otherwise known as "Hoy Kalbo Tanggal ka sa Trabaho sa Desisyon ni Justice Velasco"
"While we are supposed to be a democratic society, our constitutional rights to freedom of expression and association in the context of labor relations has been eroded by the decision of Justice Presbitero Velasco of the Philippine Supreme Court. Not only it is anomalous, it is also unconstitutional."
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NUWHRAIN-Dusit Hotel Nikko Chapter-APL-IUF
The Supreme Court ruling on G.R. Nos. 163942 and 166295, also known as the Dusit Hotel Case, reflects the SC’s tendency to support government schemes to establish an investment-friendly climate in the country. Although it is not a policy-making body of the government, the Supreme Court's decisions usher in alternative, if not new, economic policies at the expense of workers' rights. Apart from issuing “judicial legislations” that emasculate workers’ and trade union rights, the SC also legalized contractualization, reversing its earlier rulings that declared the practice prohibited, illegal and unfair labor practice.
Corruption appears to have been institutionalized in our higher Judicial System. This particularly occurs whenever huge sums of money are involved, which is the usual state of affairs in many land-grabbing incidents, cases involving influential and rich politicians and businessmen, and situations where the past administrations that appointed Supreme Court Justices are involved.
The assailed decision penned by Justice Presbitero Velasco that pertains to the mass dismissal of Dusit Hotel Union's officers and active union members in 2002 can be framed in this overall context. By twisted and tortured logic, the High Court Division ruled that by exercising the Dusit Hotel Workers' right to freedom of expression by shaving their heads should be treated as an "illegal strike" – despite the absence of the workers' concerted refusal to work or a slowdown.
Evolution of the case
On January 18, 2002 Dusit prevented its workers from reporting to work – after many male staff cropped their hairs in protest of management’s dilatory tactics in the collective bargaining negotiations – forcing them to hold a picket outside the hotel.
On January 26, 2002 Dusit terminated 90 of the workers, including 29 union officers of the Nuwhrain-Dusit Hotel Nikko Chapter that virtually wiped out the union leadership, and suspended 136 union members who did not even cut short their hair.
Unfortunately, the government agencies concerned, in an apparent conspiracy with Dusit management, dismissed the union's complaints for illegal dismissal and unfair labor practice. First, the National Labor Relations Commission, second, the Court of Appeals and finally the Supreme Court, which even further legitimized and reinforced the hotel’s illegal acts or violation of the workers’ trade union rights.
On Nov. 11, 2008, the Supreme Court Second Division, with Associate Justice Presbitero Velasco Jr. as the ponente, ruled that the concerted action of the male workers in reporting for work with shaven heads amounted to a "strike" and that for not observing the cooling-off period, no-strike provision of the CBA, they staged an "illegal strike."
Other highlights in the unprecedented verdict include the assertion that violation of the Dusit’s “grooming standards” had caused disruptions in the hotel’s operations. Similarly, the Velasco ruling declared that when the employees went to work with shaven heads, there was “clearly a deliberate and concerted action to undermine the authority of and to embarrass” Dusit and, “therefore, not a protected action.” Assuming there was a violation of the grooming standards, it is very difficult to comprehend how an infraction punishable by a mere oral reprimand could be magnified by the SC to justify the mass dismissal. These and other grounds cited in the said ruling on the Dusit case are now part of the Philippine jurisprudence as G.R. 163942 and G.R. 166295.
Although at first, Nuwhrain-Dusit Hotel Nikko Chapter (N-DHNC) was alone in assailing the SC decision, it has become a fight also of various organizations of workers and other sectors from across the political spectrum. A motley group of trade unionists and other advocacy groupings have met and planned for joint campaigns to overturn that “outrageous” court decision. Aside from regular pickets at the Supreme Court and other mass actions, this loose and nameless alliance has already filed motions for reconsideration (MRs) and motions for intervention (MIs) – including those representing each the private and public sector unions.
The Dusit case has also been discussed in a forum sponsored by the International Labor Organization (ILO) in Manila, and several global union federations (GUFs) are already aware of this case.
Unions, church groups ask Supreme Court to review, junk en banc the..., with women activists shaving their heads bald to show their solidarity to the Dusit Hotel workers
Fortunately, the Dusit Hotel case was among the eight cases investigated by the ILO High Level Mission in September 2009. Then on November 2010, the Geneva-based Committee on Freedom of Association of the ILO released its “Findings and Recommendations” on the said case.
The "anomalous decision" is now "law" and a very "dangerous precedent" to all workers
When the SC with undue haste junked the MRs and MIs or were simply “noted without action,” the Dusit union as well as a growing number of unions and
other organizations and individuals, including those in the legal community, have started to wonder: What’s so “special” or “valuable” in the Dusit case that have prompted the SC to zealously refuse to review the division decision en banc? This, despite the Velasco ruling’s wide-ranging effects and implications on the current labor, civil or constitutional rights, which should have warranted an automatic reappraisal by the entire Supreme Court.
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 Velasco decision 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”!
Moreover, the Minute Resolution, dated February 9, 2009, denying the Dusit workers motion for reconsideration further indicates a conspiracy, when one of the justices whom the division clerk identified to have approved the same was Justice Ruben Reyes, who already retired more than one month earlier on January 2, 2009 or a day before reaching the mandatory retirement age of 70. Thus, since Justice Reyes’ replacement had not yet been designated on February 09, 2009, the 2nd Division with only four members, was not validly constituted as the Supreme Court and therefore cannot validly render said resolution. Just like the plagiarism case against Justice Del Castillo in the case involving “Comfort Women”, the Court apparently treated non-compliance with the Constitutional mandate to sit en banc or in a division of three, five or seven , as a mere typographical error. Plainly, the Supreme Court cannot sit in a division of only four members.
Division Clerk of Court LudichiYasay-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 Dusit Hotel union filed a disbarment case versus Reyes; but he was disbarred by the court en banc last Aug. 14 in a separate “political case” (Negros Oriental Rep. Jocelyn Limkaichong case).
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.
Why is the campaign important?
One of the most controversial “judicial legislation” issued by the SC, the “Velasco Decision” on the Dusit Case redefined the meaning of "illegal strike". This expanded definition makes the workers’ collective actions, such as the innocent cropping of hair, that are considered part of their freedom of expression, vulnerable to being declared as illegal strikes.
Also, with the adverse decision, affected workers lost more than 200 million in terms of back wages and benefits since 2002.
Apparently, the Justices see no reason to address a fundamental constitutional issue, even one which destroyed the livelihoods and threw away the years of service by ordinary workers and one which threatens that of many workers other than those from Dusit Thani Hotel.
The decision nevertheless circumscribed the essence of the concepts and acts associated with freedom of expression and strike. Furthermore, it leaves to the employer the decision to determine what is considered to be a "strike" and what is not. Therefore, employers are now able to state that any collective action that they perceive as embarrassing, or defying their authority, or threatening their business can be labeled as "illegal strike".
It also opened the possible interpretation of any collective act initiated by union members as indicative of bargaining in bad faith. The Supreme Court decision thus effectively allowed employers to subjectively determine what constitutes industrial action! And ultimately, the decision provided employers with a very strong justification to easily bust unions in practically all industrial levels. This will render the union helpless in trying to use "pressure tactics" whenever collective bargaining negotiations take place.
The hotel management used the mass dismissal of NUHWRAIN members to encourage the establishment of an organization called Dusit Hotel Employees Labor Union, demonstrating that the dispute was never about “grooming standards” but rather intended to eliminate the legal collective bargaining agent for the hotel employees. The same scenario will also happen most likely in other organized establishments unless the decision is reversed.
“The SC is now telling workers that any concerted actions such as wearing of black arm bands, prayer rallies, and other forms of dramatic expression of collective actions, can be considered as a strike even if there is no work stoppage,” Reynaldo Rasing, president of the NUWHRAIN-Dusit Hotel Nikko Chapter, said. “This is a dangerous precedent that would inhibit the exercise of workers’ constitutional right to strike,” he added.
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 exercise 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.
ILO: the Supreme Court got it WRONG!
In 2009, the IUF along with 17 other Philippine Trade Unions/Labor Organizations, filed a complaint to the ILO Committee on Freedom of Association as the ruling was in clear violation of fundamental trade union rights guaranteed by ILO Conventions 87 (Freedom of Association and Protection of the Right to Organize) and 98 (Right to Organize and Collective Bargaining), which the country has ratified as early as 1953 and which have both emerged as focal issues in the Dusit case (even non-signatory countries can be the subject of CFA complaints – 87 and 98 are considered binding on all member states).
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 2010. In its 358th report, it 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.”
“866. Considering that the Court’s judgment makes reference to, among other things, the expression of protest though the shaving of heads as an illegal strike action in a manner contrary to the principles of freedom of association, the committee requests the Government, within the context of the exploratory talks, to review with the hotel management and the dismissed workers concerned the feasibility of their reinstatement…”
Some of the major issues pointed by the committee are the following:
1. 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.”
2. 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).
3. 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.
4. 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).
No less than the ILO declared that the shaving of heads is a peaceful and lawful exercise of the workers’ right to freedom of association which the government should respect. Again, no less than the Philippine Constitution guarantees the right of the workers to engage in peaceful concerted activities. There is no gainsaying that the SC culpably violated the Constitution which its members swore to uphold and defend.
The ILO, in effect, issued a strong recommendation that the dismissed workers should either be reinstated or adequately compensated, declaring the Supreme Court ruling contrary to the principles of freedom of association.
What needs to be done?
Despite having encountered some favorable instances during the campaign, there has been no progress yet. In fact, the company is still trying to pressure workers into dropping their case, most recently by visiting them at home individually to intimidate them and offer money. However, the workers are standing strong and united: after nine years they still meet regularly and have vowed to continue their struggle for justice.
In fact, the union has launched a public campaign to pressure the government to implement the ILO recommendations. To sign the petition to the Minister of Labour, you can visit:
http://www.petitiononline.com/20110501/petition.html - Justice for Dusit Hotel Workers Petition
The Dusit workers have also made a short video about their struggle, which you can view at:
http://www.youtube.com/watch?v=ve82oihAsCQ&feature=related - Hoy Kalbo, Tanggal ka sa Trabaho (Hey Baldhead, You're Fired!) campaign video
Likewise, the dismissed Dusit Hotel Workers respectfully appeal to the public as well as the Philippine Government to do the following:
A “travesty of justice,” a “dangerous precedent,” an “outrageous jurisprudence,” “unconstitutional and illegal,” and a form of “judicial legislation” in which the court assumes the law-making powers of the Congress, that is the Velasco Decision!
Support our quest for justice!!!
Reverse the Hoy Kalbo,
Tanggal ka sa Trabaho doctrine
of the Supreme Court!!!
Support the implementation of the ILO Recommendations on Dusit Case!!!
Boycott Dusit Thani Manila Now!!!
For more information, please visit the Hoy Kalbo Tanggal ka sa Trabaho Campaign Page at:
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