Workers mourn the Supreme Court’s complicity (through its Second Division) in the violation of the rights of workers to freedom of expression and to security of tenure. The Second Division refuse to submit the Dusit Case to the Court En Banc despite the obvious reversal of doctrines in its November 8, 2008 Decision. A mere division cannot reverse or modify doctrines of law; only the Court En Banc can.
The Second Division’s Decision dated November 8, 2008 is clearly both illogical and unjust. Thus, the ILO Committee on Freedom of Association said that:
“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”.[i]
Workers belonging to SENTRO marched to the Supreme Court today to urge Chief Justice Sereno to review the case En Banc and reverse the illogical and unjust labor jurisprudence which was found to be in violation of ILO Core Conventions.
While they laud the recent decisions of the Court, particularly on the PDAF and DAP, the workers also ask that the Chief Justice take a look at patently unjust decisions of the Court.
Dusit Hotel workers were deemed to have gone on strike in 2001 solely because some of them reported for work with shaved heads. The management had prevented from working not only those who shaved their heads, but also women union officers (none of whom shaved their heads) and members who did NOT shave their heads nor cut them short as well as male union officers who had long lost their hair due to the ravages of time.
Justice Velasco, the ponente, fully aware that work stoppage or slow-down is an essential element of a strike, used tortured logic to somehow arrive at a conclusion that indeed there was work stoppage: some of the male officers and members shaved their heads, thus forcing management to choose between allowing supposedly unsightly bald employees to serve “first class” guests at a 5-star hotel, or prevent them from reporting from work. Since the hotel opted to prevent the bald workers from working, the Union is considered to have gone on strike!!
However, management also refused entry to female officers and female members whom they thought were sympathetic to the Union. Male officers and members who were already bald were also refused entry. Since baldness alone was not the criteria for refusal of entry to the Hotel, there is clearly no logic whatsoever to the conclusion of J. Velasco – tortured or otherwise.
CJ Sereno is an international law professor here and abroad. The ILO said that the ruling in Dusit was wrong and inconsistent with ILO Conventions. DOLE officials attend yearly ILO meetings in Geneva, Switzerland – which costs the government a lot of money. The expenses of the DOLE in Geneva are valid and legitimate – and so is the ruling of the ILO in this case.
The Secretary of Labor found that no violence occurred in the picketline, but this was totally ignored by the Court.
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Clearly then, the Second Division was not validly constituted since the four (4) remaining justices cannot be considered a division. (It was not as if there were actually 5 members except that one was indisposed.) Hence, the February 9, 2009 resolution cannot be considered as a resolution of the Court, and is therefore a mere scrap of paper.
The then Clerk of Court, Atty. Ludichi Yasay Nunag, admitted that the resolution was inadvertently released prior to the replacement of Justice Ruben Reyes. Justice Presbitero Velasco admitted in a congressional hearing that indeed there was a mistake. Thus, they both tacitly admitted that the Division was not validly constituted.
The Dusit workers could not understand how simply saying that there were “inadvertence” and “mistakes” would legitimize an otherwise patently void resolution!
To correct the “mistake” or what to Dusit Hotel worker is clearly a culpable violation of the Constitution, the 2nd Division of the Court should have nullified the February 9, 2009 Resolution. Instead, it gave a stamp of validity by expunging the Dusit hotel workers Motions for Reconsideration.
On March 13, 2009, or barely nine (9) days after the February 9, 2009 resolution was released the Court, with apparent undue haste, issued an Entry of Judgment based on the expunction of petitioner’s motions assailing the validity of the February 9, 2009 Resolution.
The Second Division has failed to address the contention of the Union that only the Court En Banc can reverse doctrines enunciated by the Court. This matter was first raised by the Union way back in January 2009. After the issuance of the February 9, 2009 Resolution, the Union also maintained that the Division cannot be considered as such and thus the Resolution was null and void. The Union has reiterated both of these matters in many motions for reconsideration. The Court simply ignored all of these.
Meanwhile, SEVENTY FIVE MILLION PESOS (PHP 75,000,000) in service charge promised to the workers who were not dismissed has since been missing.
[i] [i]358th Report dated November 2010