After the Herrera Law Weakened Workers’ Rights, Another Labor Code Revision in the Offing?

As such, far from making it possible to give Filipinos more and better-paying jobs, the last major revisions in the Labor Code have resulted in the opposite. In fact, the rise in profits and low-quality jobs in the Philippines over the past twenty years can be attributed to the enabling mechanisms put in place by the Herrera Law, by RA 6727 (or Wage Rationalization Act) and various Supreme Court rulings that interpreted the two to the disadvantage of workers. For example, the 10-year CBA moratorium has tied the hands of workers from negotiating for wage increases and better work conditions.

Herrera Law Helped to Weaken Workers’ Unions and Strikes

Prior to the Herrera Law and RA 6727, the Philippines had a more vibrant union movement. Although it was criticized for being divided – especially between unions that call itself “genuine” and those suspected of being “yellow” or company unions – the labor movement was able to compel the government to legislate increases in the minimum wage from time to time, on top of the increases unions were able to gain in collective bargaining agreements.

And then Herrera Law and RA 6727 were enacted, and for the past twenty years since, the number of unionized workers in the country dropped from 2.97 million in 1989 to just 1.94 million in 2008, despite the rise in the labor force. More than four in every 10 wage and salary workers were unionized in 1989, but this decreased to just one in ten wage and salary workers by 2008. New registered unions dropped by more than half from 627 in 1989 to 279 in 2008. Strikes also plunged from 197 in 1989 to just 4 as of September 2009.

The fall in the number of unionized workers and their ability to fight for wage increases and better working conditions would necessarily result in worsening poverty for wage earners.

Filipino workers also practically lost their right to a minimum wage, which they have gained through the struggle of the “genuine” bloc in the 1950s, as regional wage boards fix wage rates per region or worse, per province, and for different types of jobs per different setups. At some point in the last twenty years, the Philippines had 600 to 1,000 minimum wage rates, said Remigio Saladero, lawyer of Pro-Labor Assistance Center (PLACE) and author of labor law handbook Husgahan Natin (Let’s Judge It).

In the Herrera Law-revised Labor Code, the workers’ democratic space for advancing their calls was further constricted to the point that, under a militarist president like Gloria Macapagal-Arroyo, it has almost disappeared altogether.

The provision in the Herrera law that dealt the final blow to workers’ trade union rights was the unlimited power given to the Labor secretary. The Labor Secretary was given the authority to prohibit a strike or issue a return-to-work order to striking workers. He or she could deputize the police to enforce such order. The Labor Secretary could also declare as lawful contracting or subcontracting of labor and production even in cases that are not allowed under the Labor Code.

“In court you cannot question the opinion of the Labor secretary regarding his or her basis for issuing an assumption of jurisdiction (AJ) order to quell a strike because the Herrera Law has given the Labor secretary the authority to decide which business or company is ‘indispensable to the national interest,’” said Saladero. Saladero said the Labor secretary has practically usurped the powers of Congress to decide the matter. Furthermore, he said, many anti-worker rulings of the Supreme Court used as basis the Herrera Law, particularly the provisions giving the Labor secretary enormous powers.

Ironically, Saladero said, the patently anti-worker Herrera Law was passed under the people-power installed Aquino government. Instead of repealing the repressive decrees issued by the Marcos dictatorship, including those that constricted workers’ rights and denied them of their right to strike, it even broadened the scope of companies covered under the category ‘indispensable to the national interest’ where the Labor secretary can intervene. It also “added fangs” to enforce the intervention, Saladero said.

As such, workers in the past two decades who found their strikes forcibly quelled, who sustained injuries, who were laid off or charged with “criminal” cases because they upheld their right to strike, have the Herrera Law to blame. It is the law that made it legal to lay off striking workers, deny them their wages and charge them with criminal cases if they defied the Labor department’s assumption of jurisdiction or compulsory arbitration orders. It is the law that deputized “law enforcers” such as the military, aside from the police, to attack workers and break strikes.

Such physical and economic violence against strikers help explain why strikes in the country have dwindled from its peak of 581 in 1986 to 43 in the first year of the Arroyo regime.

During Arroyo’s nine years as president, it has used the fangs of the Herrera Law to the hilt. In her first year in power alone, assaults to workers rose from 66 to 116 and recorded coercion rose from 4 to 52 cases, based on cases documented by the Center for Trade Union and Human Rights (CTUHR).

Arroyo’s first year was instructive of her nine years of cruelty to Filipino workers. She turned the picket lines of workers in Toyota, Honda, Nissan and Yokohama into a “showcase of overkill” in terms of quelling the workers’ strike.

Based on CTUHR’s documentation, in Nissan alone, 700 members of the Regional Special Action Forces (RSAF) unit of the Philippine National Police (PNP), which is normally used in counter-insurgency operations, attacked the picket of the striking workers and cracked down on its union leaders. In Yokohama, 300 members of the Special Weapons and Tactics (SWAT) unit of the PNP attacked the picket of the striking workers. Aside from violently attacking the picket of striking workers, 16 companies filed criminal cases against its workers in 2001 alone.

From 2002-2004, the attacks grew even more fierce and deadly for the workers. The most violent dispersal of strikes by “deputized” military and police forces happened at Nestle and at Hacienda Luisita, where 12 workers and two children were killed and hundreds wounded.The bloody attacks of workers in both cases occurred while enforcing the assumption of jurisdiction order of the Labor secretary. To add to the workers’ woes, 250 of the laid-off Nestle strikers have an average of 37 strike-related criminal cases to contend with.