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."
---

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 managements 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 hotels illegal acts or violation of the workers trade
union rights.

Rey Rasing
Union President
NUWHRAIN-Dusit Hotel Nikko Chapter-APL-IUF

Background
The Supreme Court ruling on G.R. Nos. 163942 and 166295, also known as
the Dusit Hotel Case, reflects the SCs tendency to support government schemes to
establish an investment-friendly climate in the country. Although it is not a policymaking 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.

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 Dusits grooming standards had caused disruptions in the hotels
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 controversial Dusit ruling, with women
activistsshaving their heads baldto show their solidarity to theDusit Hotelworkers
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 Genevabased 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: Whats 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 rulings 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 theres 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
ones 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 noncompliance 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 ones 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 governments 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 thatgenerally, 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 Courts 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).

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!

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

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!!!

Likewise, the dismissed Dusit Hotel Workers respectfully appeal to the public as
well as the Philippine Government to do the following:

help them compel the Supreme Court to take cognizance of their case en banc.
instruct the concerned government agencies, led by the Department of Labor
and Employment (DOLE) to promptly look into and to comply with the
November 2010 findings and recommendations of the Committee of Freedom of
Association of the International Labor Organization (ILO) regarding the Dusit
Hotel case.

For more information, please visit the Hoy Kalbo Tanggal ka sa Trabaho Campaign
Page at:
http://www.facebook.com/pages/Hoy-Kalbo-Tanggal-ka-saTrabaho/147982591890520