The Philippine Supreme Court, in a decision handed down by its Second Division last November, has laid down a new doctrine that threatens to seriously undermine the exercise of the essential right to free speech and expression in the context of labor relations.

The freedoms of speech and of expression have long been acknowledged as indispensable to a democratic society. The eminent American jurist, Benjamin N. Cardozo, speaking for the United States Supreme Court, stated that the freedom of thought and speech “is the matrix, the indispensable condition, of nearly every other form of freedom.” Our own high court has characterized the freedom of expression as being “a fundamental postulate of our constitutional system.”

International human rights law likewise recognizes the fundamental importance of free expression. Article 19 of the Universal Declaration of Human Rights proclaims that “Everyone has the right to freedom of expression and opinion” and that this right includes the freedom “to seek, receive, and impart information and ideas through any media and regardless of frontiers.”

But despite this widely recognized primacy of the freedom of expression, the Philippine Supreme Court, in a decision handed down by its Second Division last November, has laid down a new doctrine that threatens to seriously undermine the exercise of this essential right in the context of labor relations.

The decision concerns a labor dispute between the management of Dusit Hotel Nikko and members of its employees’ union. In the course of the dispute, several employees came to work with shaved heads and were prevented from working by the hotel.

Speaking through Associate Justice Presbitero J. Velasco, Jr., the Court, in its decision in the case of NUWHRAIN-APL-IUF Dusit Hotel Nikko Chapter v. Court of Appeals, ruled that the act of several hotel employees in reporting for work with shaved heads, ostensibly in violation of the hotel’s grooming standards, constituted an illegal strike and was “not a protected action;” in other words, that the act of shaving one’s head as a means of protest transgressed the limits of freedom of expression and could validly be restricted by law.  

Beyond strikes

The Constitution and law recognize two types of activities that can be undertaken by workers collectively – strikes and other peaceful concerted activities.

A “strike” is explicitly defined as “any temporary stoppage of work by the concerted action of employees as a result of an industrial dispute.” The right to strike is recognized under the Constitution, but may only be exercised “in accordance with law,” that is in the manner prescribed and with due observance of the requirements set forth under the Labor Code.

Any other “peaceful concerted activities” short of a strike are not, however, subject to the same degree of regulation. These concerted activities fall under the mantle of the constitutionally protected freedoms of speech, expression, and assembly, and may only be prevented or restricted upon a clear showing that a “clear and present danger” to public interest exists.

The legally allowable degree of regulation, therefore, is determined by how a particular act is characterized: Is it a strike, in which case more stringent restrictions may be applied? Or is it another type of peaceful concerted activity, which can only be restricted when there is a clear danger to public interest?

In finding that the act of coming to work with a shaved hand, even without an express refusal to work, amounted to a strike as it forced the hotel to “choose between allowing its inappropriately hair styled employees to continue working, to the detriment of its reputation, or to refuse them work,” the Supreme Court has dramatically expanded the legal definition of strike. It has characterized speech which is “detrimental to the employer’s reputation” as amounting to a strike and therefore subject to more stringent restriction.

In so doing, it has opened the door to more intrusive regulation of activities which in the past would be considered as protected under the freedom of speech and expression guarantees of the Constitution.

Past decisions

In past years, the Supreme Court has exercised a tremendous amount of care in order to avoid precisely this kind of encroachment into the constitutionally protected sphere. In one decision, the Court upheld the primacy of freedom of expression over property rights, and allowed workers to join a rally even during working hours. According to the Court:

In fact, even in cases where the Court has found an illegal strike to have occurred, it has taken pains to distinguish between the invalidity of the strike – for having failed to adhere to the process required under the Labor Code – and the protected character of specific acts done during the strike.

For instance, in one case where the Court declared a strike at a hospital illegal, it nonetheless clarified that the “wearing of armbands” and “putting up of placards” cannot be construed as illegal, as “they are within the mantle of constitutional protection under freedom of speech.”

The Dusit decision, unfortunately, does away with such fine distinctions, and raises concerns about the way in which the freedoms of speech and expression will be construed within the workplace in the coming years.

To begin with, it is abrupt turnaround from the recognition of the primacy of the freedom of speech particularly with respect to property rights. Dusit implies that if workers’ speech is detrimental to an employer’s reputation – in other words, it “embarrasses” the employer – then it may be disallowed, and, in fact, punished. This reverses the long-established hierarchy of rights that give more weight to free speech than to property interests.

Furthermore, by expanding the definition of a strike, and, as a consequence, the range of workers’ activities that may be subject to more stringent regulation, it severely limits the freedom of workers to speak and express themselves within the workplace. It is easy to envision that Dusit may eventually be used to restrict activities such as wearing of pins or armbands or displaying placards or signs.

Sea change?

For employees in the public sector, this expanded definition has even direr consequences. Since public employees are allowed to organize and engage in peaceful concerted activities but are prohibited by law from conducting strikes, expanding the notion of “strike” to cover not only cases of actual work stoppage but also any action “embarrassing” to the employer may eventually lead to a total restriction on any type of activity critical of or in protest against the government.

This will undoubtedly constitute a significant erosion of these fundamental freedoms. The mere possibility that the Dusit decision may signal a sea change in the State policy on freedom of expression within the workplace is threat enough. For as pointed out by the Court:

If we are to continue to uphold the tenets of our democratic society, we should strive our utmost to ensure that that crucial “breathing space” continues to be respected by our courts.

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