Reviewer in Labor Relations (CBA Process)

Alan Hubert P. Chu 3S

Reviewer in Labor Relations (CBA Process) THE CBA PROCESS ORGANIZED ESTABLISHMENT  A firm or company where there is a recognized or certified exclusive bargaining agent. (Rule 1, Sec.1 (bb) Omnibus Rules Implementing the Labor Code)

UNORGANIZED ESTABLISHMENT  An enterprise where no union has has yet been duly recognized or certified as bargaining representative.

LEGITIMATE LABOR ORGANIZATION  Any labor organization duly registered registered with the Department of Labor and and Employment and includes any branch, local or affiliate thereof. ( Book V, Rule I, Sec. 1 of the Omnibus Rules Implementing the Labor Code)

VOLUNTARY RECOGNITION The process whereby the employer recognizes a legitimate labor organization as the exclusive bargaining representative of the employees in the appropriate bargaining unit after showing that the labor organization is supported by at least majority of the employees in the bargaining unit.  Applies only in unorganized establishments.

CERTIFICATION ELECTION The process of determining through secret ballot the sole and exclusive representative of the employees in an appropriate bargaining unit, for  purposes of collective bargaining bargaining or negotiation. (Book V, Rule I, Sec. Sec. 1 of the Omnibus Rules Implementing the Labor Code)

CONSENT ELECTION The election voluntarily agreed upon by the parties to determine the issue of majority representation of all the workers in the appropriate collective bargaining unit. (Book V, Rule I, Sec. 1 of the Omnibus Rules Implementing the Labor Code)

EXCLUSIVE BARGAINING AGENT  Any legitimate labor union union duly recognized or certified as the sole and exclusive bargaining representative or agent of all the employees in a bargaining unit. unit. (Implementing Rules Rules of the Labor Code, as amended by D.O. No. No. 40-03 40-03

COLLECTIVE BARGAINING Obligation to meet and convene promptly and expeditiously in good faith for the  purpose of negotiating an agreement with respect to wages, hours of work and all other terms and conditions of employment including proposals for adjusting any  grievances or questions arising under under such agreement and executing a contract incorporating such agreements if requested by either party but such duty does not compel any party to agree to a proposal or to make any concession. (Art. 252 of the Labor Code)

COLLECTIVE BARGAINING AGREEMENT Refers to the negotiated contract between a legitimate labor organization and the employer concerning wages, hours of work and all other terms and conditions of employment in a bargaining unit, including mandatory mandatory  provisions for grievances and arbitration arbitration machineries. (Book V, Rule I, Sec. Sec. 1 of the Omnibus Rules Implementing the Labor Code)

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Alan Hubert P. Chu 3S

Reviewer in Labor Relations (CBA Process)

RATIFICATION

EXECUTION OF THE COLLECTIVE BARGAINING AGREEMENT

The agreement negotiated by the employees’ bargaining agent should be ratified or approved by the majority of all the workers in the bargaining unit. (Art. 231 of the Labor Code and Book V, Rule XVII, Sectio n  2 of the Implementing Rules) Which comes first: ratification or execution? The Labor Code does not specify, or at least Art. 231 is not clear on the matter. In practice, the sequence usually depends on the likelihood of ratification as judged by the union. If the union strongly feels there will be no ratification problem, the CBA is finalized, signed by the  parties, and posted. If there is no such certainty, the CBA is drafted, initiated by the parties, and this “clean draft” is posted. If and when ratified, the CBA is finalized and formal signing follows. (Cesario Alvero  Azucena, r., The Labor Code with Comments and Cases, Volume II, 7 th Edition, . 392

REGISTRATION OF THE COLLECTIVE BARGAINING AGREEMENT The collective agreement, having been properly ratified, should be registered with the DOLE Regional Office where the bargaining union is registered or where it principally operates. Article 231 requires the registration within thirty (30) calendar days from execution of the agreement. Failure to register the CBA does not make it invalid or unenforceable. Its nonregistration, however, renders the contract-bar rule inoperative.

IMPLEMENTATION AND RENEGOTIATION The collective bargaining process does not end with the signing and execution of the CBA. The parties have the mutual obligation during the term of the agreement to meet and confer promptly and expeditiously and in good faith for the purpose of adjusting any  grievances or questions arising under such agreement. To violate this obligation is unfair labor practice. (Republic Savings Bank v. CIR, GR No. L- 20303, Sept. 27, 1967) Renegotiation applies only to the renegotiable provisions, that is, those that do not  pertain to the identity and political status of the bargaining union.

AUTOMATIC RENEWAL OF THE COLLECTIVE BARGAINING AGREEMENT

Until a new Collective Bargaining Agreement has been executed by and between the  parties, they are duty-bound to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement. The law does not provide for any exception nor qualification as to which of the economic provisions of the existing agreement are to retain force and effect, therefore, it must be understood as encompassing all the terms and conditions in the said agreement. (New Pacific Timber & Supply Company, Inc. v. NLRC, GR No. 124224, March 17, 2000)

NOTES AND COMMENTS: In order to reach a collective bargaining agreement, there should first exist an exclusive bargaining representative in accordance with Article 255 of the Labor Code. However, in order to qualify as an exclusive bargaining agent of all the employees in the bargaining unit,

registration as a labor union should precede the recognition or certification thereof. It should be noted that not every union is legitimate; only those properly registered are considered a legitimate labor Page 2 of 18

Alan Hubert P. Chu 3S

Reviewer in Labor Relations (CBA Process)

organization. But non-registration does not mean it is “illegitimate”, it simply is unregistered and has no legal personality. It exists legally but does not possess the rights of a legitimate labor organization. (Cesario Alvero Azucena, Jr., The Labor Code with Comments and C ases, Volume II, 7 th  Edition, p. 179) Article 242 of the Labor Code enumerates the rights of a legitimate labor organization, some of which is to act as a representative of its members for the purpose of collective bargaining and to be certified as the exclusive representative of all the employees in an appropriate bargaining unit for purposes of collective bargaining. 242. Rights of legitimate labor organizations. A legitimate labor organization shall have the right: a. To act as the representative of its members for the purpose of collective bargaining; b. To be certified as the exclusive representative of all the employees in an appropriate bargaining unit for purposes of collective bargaining; c.  To be furnished by the employer, upon written request, with its annual audited financial statements, including the balance sheet and the profit and loss statement, within thirty (30) calendar days from the date of receipt of the request, after the union has been duly recognized by the employer or certified as the sole and exclusive bargaining representative of the employees in the bargaining unit, or within sixty (60) calendar days before the expiration of the existing collective bargaining agreement, or during the collective bargaining negotiation; d.  To own property, real or personal, for the use and benefit of the labor organization and its members; e.  To sue and be sued in its registered name; and f.  To undertake all other activities designed to benefit the organization and its members, including cooperative, housing, welfare and other projects not contrary to law. Notwithstanding any provision of a general or special law to the contrary, the income and the properties of legitimate labor organizations, including grants, endowments, gifts, donations and contributions they may receive from

fraternal and similar organizations, local or foreign, which are actually, directly and exclusively used for their lawful purposes, shall be free from taxes, duties and other assessments. The exemptions provided herein may be withdrawn only by a special law expressly repealing this provision. (As amended by Section 17, Republic Act No. 6715, March 21, 1989) THREE METHODS OF DETERMINING THE BARGAINING UNION 1. Voluntary Recognition 2. Certification Election with or without run-off, and 3. Consent Election I. VOLUNTARY RECOGNITION  The process whereby the employer recognizes a legitimate labor organization as the exclusive bargaining representative of the employees in the appropriate bargaining unit after showing that the labor organization is supported by at least majority of the employees in the bargaining unit. REQUISITES: 1. Possible only in an unorganized establishment because in an organized establishment the employer cannot voluntarily recognize any new union in accordance with Article 256 which requires the employer to continue recognizing and dealing with the incumbent union as long as it has not been properly replaced by another union; 2. Only one union is asking for recognition otherwise, the rivalry must be resolved through an election; 3.  The union voluntarily recognized should be the majority union as indicated by the fact that member of the bargaining unit did not object to the projected recognition. PROCEDURES AND REQUIREMENTS:  The Omnibus Rules Implementing the Labor Code, as revised by D.O. No. 40-03 provides: Section 1. When and where to file. - In unorganized establishments with only one legitimate labor organization, the employer may voluntarily recognize the representation status of such a union. Within thirty (30) days from such recognition, the employer and union shall submit a notice of voluntary recognition with the Regional Office which issued the Page 3 of 18

Alan Hubert P. Chu 3S

Reviewer in Labor Relations (CBA Process)

recognized labor union's certificate of registration or certificate of creation of a chartered local. Section 2. Requirements for voluntary recognition. - The notice of voluntary recognition shall be accompanied by the original copy and two (2) duplicate copies of the following documents: (a) a joint statement under oath of voluntary recognition attesting to the fact of voluntary recognition; (b) certificate of posting of the joint statement of voluntary recognition for fifteen (15) consecutive days in at least two (2) conspicuous places in the establishment or bargaining unit where the union seeks to operate; (c) the approximate number of employees in the bargaining unit, accompanied by the names of those who support the voluntary recognition comprising at least a majority of the members of the bargaining unit; and (d) a statement that the labor union is the only legitimate labor organization operating within the bargaining unit. All accompanying documents of the notice for voluntary recognition shall be certified under oath by the employer representative and president of the recognized labor union. Section 3. Action on the Notice. - Where the notice of voluntary recognition is sufficient in form, number and substance and where there is no other registered labor union operating within the bargaining unit concerned, the Regional Office, through the Labor Relations Division shall, within ten (10) days from receipt of the notice, record the fact of voluntary recognition in its roster of legitimate labor unions and notify the labor union concerned. Where the notice of voluntary recognition is insufficient in form, number and substance, the Regional Office shall, within the same period, notify the labor union of its findings and advise it to comply with the necessary requirements. Where neither the employer nor the labor union failed to complete the requirements for voluntary recognition under Section 2 of this Rule within thirty (30) days from receipt of the advisory, the Regional Office shall return the notice for voluntary recognition together with all its accompanying documents without prejudice to its re-submission. Section 4. Effect of recording of fact of voluntary recognition. - From the time of recording of voluntary recognition, the recognized labor union shall enjoy the rights, privileges and obligations of an existing bargaining agent of all the employees in the bargaining unit.

Entry of voluntary recognition shall bar the filing of a petition for certification election by any labor organization for a  period of one (1) year from the date of entry of voluntary recognition. Upon expiration of this one-year period, any legitimate labor organization may file a petition for certification election in the same bargaining unit represented by the voluntarily recognized union, unless a collective bargaining agreement between the employer and voluntarily recognized labor union was executed and registered with the Regional Office in accordance with Rule XVII of these Rules. EXPLANATION: The employer and the union should conclude and register a CBA within one year from voluntary recognition, otherwise, the recognition will lapse and a rival union may petition for a certification election.

II. CERTIFICATION ELECTION  The process of determining through secret ballot the sole and exclusive representative of the employees in an appropriate bargaining unit, for purposes of collective bargaining or negotiation. (Book V, Rule I, Sec. 1 of the Omnibus Rules Implementing the Labor Code) 

WHO FILES A PETITION FOR CERTIFICATION ELECTION (PCE) Department Order No. 40-03 amending the implementing rules of the Labor Code provides: Section 1. Who may file. -Any legitimate labor organization may file a petition for certification election. When requested to bargain collectively, an employer may file a petition for certification election with the Regional Office. If there is no existing registered collective bargaining agreement in the bargaining unit, the Regional Office shall, after hearing, order the conduct of a certification election. NB:  In all cases, whether the petition for certification election is filed by an employer or a legitimate labor organization, the employer shall not be considered a party thereto with a concomitant right to oppose a petition for certification election.  The employer’s participation in such proceedings shall be limited to: 1. being notified or informed of petitions of such nature; and 2. submitting the list of employees during the pre-election conference

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Alan Hubert P. Chu 3S

Reviewer in Labor Relations (CBA Process)

should the Med-Arbiter act favorably on the petition. (Art. 258-A) Section 2. Where to file.  - A petition for certification election shall be filed with the Regional Office which issued the petitioning union's certificate of registration/certificate of creation of chartered local.  The petition shall be heard and resolved by the Med-Arbiter. Where two or more petitions involving the same bargaining unit are filed in one Regional Office, the same shall be automatically consolidated with the MedArbiter who first acquired jurisdiction. Where the petitions are filed in different Regional Offices, the Regional Office in which the petition was first filed shall exclude all others; in which case, the latter shall indorse the petition to the former for consolidation. Section 3. When to file.  - A petition for certification election may be filed anytime, except: (a) when a fact of voluntary recognition has been entered or a valid certifi cation, consent or run-off election has been conducted within the bargaining unit within one (1) year prior to the filing of the petition for certification election. Where an appeal has been filed from the order of the Med-Arbiter certifying the results of the election, the running of the one year period shall be suspended until the decision on the appeal has become final and executory; (b) when the duly certified union has commenced and sustained negotiations in good faith with the employer in accordance with Article 250 of the Labor Code within the one year period referred to in the immediately preceding paragraph; NB : Art. 250. Procedure in collective bargaining. The following procedures shall be observed in collective bargaining: a. When a party desires to negotiate an agreement, it shall serve a written notice upon the other party with a statement of its proposals. The other party shall make a reply thereto not later than ten (10) calendar days from receipt of such notice; b. Should differences arise on the basis of such notice and reply, either party may request for a conference which shall begin not later than ten (10) calendar days from the date of request.

c.

If the dispute is not settled, the Board shall intervene upon request of either or both parties or at its own initiative and immediately call the parties to conciliation meetings. The Board shall have the power to issue subpoenas requiring the attendance of the parties to such meetings. It shall be the duty of the parties to participate fully and promptly in the conciliation meetings the Board may call;

d. During the conciliation proceedings in the Board, the parties are prohibited from doing any act which may disrupt or impede the early settlement of the disputes; and e.  The Board shall exert all efforts to settle disputes amicably and encourage the parties to submit their case to a voluntary arbitrator. (As amended by Section 20, Republic Act No. 6715, March 21, 1989) (c) when a bargaining deadlock to which an incumbent or certified bargaining agent is a party had been submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout; (d) when a collective bargaining agreement between the employer and a duly recognized or certified bargaining agent has been registered in accordance with Article 231 of the Labor Code. Where such collective bargaining agreement is registered, the petition may be filed only within sixty (60) days prior to its expiry. Section 4. Form and contents of petition. - The petition shall be in writing, verified under oath by the president of petitioning labor organization. Where the petition is filed by a federation or national union, it shall verified under oath by the president or its duly authorized representative. The petition shall contain the following: (a) the name of petitioner, its address, and affiliation if appropriate, the date and number of its certificate of registration. If the petition is filed by a federation or national union, the date and number of the certificate of registration or certificate of creation of chartered local; (b) the name, address and nature of employer's business; (c) the description of the bargaining unit; (d) the approximate number of employees in the bargaining unit;

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Alan Hubert P. Chu 3S

Reviewer in Labor Relations (CBA Process)

(e) the names and addresses of other legitimate labor unions in the bargaining unit;

3) if another union had been previously recognized voluntarily or certified in a valid certification, consent or run-off election, that the petition is filed outside the one year period from entry of voluntary recognition or conduct of certification or run-off election and no appeal is pending thereon.

(f) a statement indicating any of the following circumstances: 1) that the bargaining unit is unorganized or that there is no registered collective bargaining agreement covering the employees in the bargaining unit;

(g) in an organized establishment, the signature of at least twenty-five percent (25%) of all employees in the appropriate bargaining unit shall be attached to the petition at the time of its filing; and

2) if there exists a duly registered collective bargaining agreement, that the petition is filed within the sixty-day freedom period of such agreement; or

(h) other relevant facts. Determine whether the PCE should be processed further or dismissed

PROCEDURE: Petition for Certification Election

Preliminary conference Approve

Appeal if  organized establishment*

Determine the bargaining unit that will participate, the identity of the contending union and the possibility of holding a consent election instead of a certification election.

Hearings and Pleadings Denied

Conduct the Certification Election

If the unions agree to hold a consent election, then the PCE will no longer be heard.

Appeal Consent election Pre-election conference Run-off Election if  all the requirements are present.

Valid Election Voting Failure of Election Canvassing

Proclamation and Certification *Approval of a PCE in an unorganized bargaining unit is never appealable because the law wants to unionize the ununionized.

Appeal to the Secretary as provided by D.O. No. 40-E-03

Action on the Petition: Preliminary Conference Department Order No. 40-03 amending the implementing rules of the Labor Code provides: Section 5. Raffle of the case.  - Upon the filing of the petition, the Regional Director or any of his/her authorized representative shall allow the party filing the petition to personally determine the Med-Arbiter assigned to the case by means of a raffle.

Where there is only one Med-Arbiter in the region, the raffle shall be dispensed with and the petition shall be assigned to him/her.

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Alan Hubert P. Chu 3S

Reviewer in Labor Relations (CBA Process)

Section 6. Notice of preliminary conference. - Immediately after the raffle of the case or receipt of the petition, the same shall be transmitted to the Med-Arbiter, who shall in the same instance prepare and serve upon the petitioning party a notice for preliminary conference. The first preliminary conference shall be scheduled within ten (10) days from receipt of the petition. Within three (3) days from receipt of the petition, the Med-Arbiter shall cause the service of notice for preliminary conference upon the employer and incumbent bargaining agent in the subject bargaining unit directing them to appear before him/her on a date, time and place specified. A copy of the notice of preliminary conference and petition for certification election shall be posted in at least two conspicuous places in the establishment. Section 9. Preliminary Conference; Hearing. - The Med-Arbiter shall conduct a preliminary conference and hearing within ten (10) days from receipt of the petition to determine the following: (a) the bargaining unit to be represented; (b) contending labor unions; (c) possibility of a consent election; (d) existence of any of the bars to certification election under Section 3 of this Rule; and (e) such other matters as may be relevant for the final disposition of the case. Action on the Petition: Hearing and Pleadings Department Order No. 40-03 amending the implementing rules of the Labor Code provides: Section 11. Number of Hearings; Pleadings. - If the contending unions fail to agree to a consent election during the preliminary conference, the Med-Arbiter may conduct as many hearings as he/she may deem necessary, but in no case shall the conduct thereof exceed fifteen (15) days from the date of the scheduled preliminary conference/hearing, after which time the petition shall be considered submitted for decision. The Med-Arbiter shall have control of the proceedings. Postponements or continuances shall be discouraged. Within the same 15-day period within which the petition is heard, the contending labor unions may file such pleadings as they may deem necessary for the immediate resolution of the petition. Extensions of time shall not be entertained. All motions

shall be resolved by the Med-Arbiter in the same order or decision granting or denying the petition. Section 12. Failure to appear despite notice. - The failure of any party to appear in the hearing(s) when notified or to file its pleadings shall be deemed a waiver of its right to be heard. The Med-Arbiter, however, when agreed upon by the parties for meritorious reasons may allow the cancellation of scheduled hearing(s). The cancellation of any scheduled hearing(s) shall not be used as a basis for extending the 15-day period within which to terminate the same. Section 13. Order/Decision on the petition. - Within ten (10) days from the date of the last hearing, the Med-Arbiter shall issue a formal order granting the petition or a decision denying the same. In organized establishments, however, no order or decision shall be issued by the Med-Arbiter during the freedom period.  The order granting the conduct of a certification election shall state the following: (a) the name of the employer or establishment;(b) the description of the bargaining unit; (c) a statement that none of the grounds for dismissal enumerated in the succeeding paragraph exists; (d) the names of contending labor unions which shall appear as follows: petitioner union/s in the order in which their petitions were filed, forced intervenor, and no union; and (e) a directive upon the employer and the contending union(s) to submit within ten(10) days from receipt of the order, the certified list of employees in the bargaining unit, or where necessary, the payrolls covering the members of the bargaining unit for the last three (3) months prior to the issuance of the order. RATIONALE: During the entire 60-day freedom period, up to its last day, the door should remain open for any union to file a PCE or a motion for intervention. Action on the Petition: Denial  The Med-Arbiter may either approve or disapprove the petition to hold a Certification election. The denial has to be based on a ground specified by law, those provided by D.O. No. 40-03 and R.A. No. 9481 of 2007.

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Alan Hubert P. Chu 3S

Reviewer in Labor Relations (CBA Process)

Grounds for denial of the petition: 1. Non-appearance of the petitioner for two consecutive scheduled conferences before the MediatorArbiter despite notice; 2.  The petitioning union or national/federation is not listed in the Department’s registry of legitimate labor unions OR that its registration certificate has been cancelled with finality in accordance with Rule XIV of D.O. No. 40-03 as amended; 3. Failure of a local/chapter or national union/federation to submit a duly issued charter certificate upon filing of the petition for certification election; 4. Absence of employer-employee relationship between all the members of the petitioning union and the establishment where the proposed bargaining unit is sought to be represented; 5. Filing a petition within one (1) year from the date of recording of the voluntary recognition, or within the same period from a valid certification, consent or run-off election where no appeal on the results of the certification, consent or run-off election is pending; 6. Where a duly certified union has commenced and sustained negotiations with the employer in accordance with Art. 250 of the Labor Code within the one-year period referred to in Section 14.d of the Implementing Rules OR where there exists a bargaining deadlock which has been submitted to conciliation or arbitration or has become the subject of a valid notice of strike or lockout where an incumbent or certified bargaining agent is a party; 7. Filing the petition before or after the freedom period of a duly registered collective bargaining agreement; provided that the sixtyday period based on the original CBA shall not be affected by any amendment, extension or renewal of the CBA; 8. In an organized establishment, the failure to submit the twenty-five percent (25%) signature requirement to support the filing of the petition for certification election. POINTS TO REMEMBER: 1st ground: As a counter-measure on the possibility of a racket scheme, the DOLE relentlessly pursues a “cleansing program” by delisting unions under Rule XV of the same D.O. No. 40-03 as amended by D.O. No. 40-F-03.

2nd ground: The mere filing of a petition to cancel the petitioner’ s registration DOES NOT cause the suspension or dismissal of the PCE. To serve as a ground the legal personality of the petitioner should have been revoked or cancelled with finality. 3rd ground: This ground obligates the petitioning union to submit a duly issued charter certificate of the chapter at the time the union files its PCE. 4th ground: The employee’s right to unionize and the union’s right to file a petition for certification election are founded on the existence of employeremployee relationship. 5th ground: The law does not want more than one election in a twelve-month period.  The certification year bar however, does not apply if there was a failure of election nor to a unit clarification petition filed during the certification year.  The certification year bar presupposes that there was an actual conduct of election. 6th ground: The negotiation bar or deadlock bar applies because negotiation is still ongoing or that the negotiation is caught in a deadlock. The deadlock does not erase the fact that there is negotiation which is a barrier to holding a certification election. REASON: To ensure stability in the relationship of the workers and the management. Deadlock Bar however, does not apply if the deadlock is artificial. 7th ground: The contract bar rule is intended to ensure stability in the relationship of the workers and the management by preventing frequent modifications of any CBA earlier entered into by them in good faith and for the stipulated original period.  The contract bar rule also applies in cases where there has been no new CBA that has been concluded. Art. 253 of the Labor Code provides that:” it shall be the duty of both parties to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60-day period and/or until a new agreement is reached by the parties. 8th ground: In the case of California Manufacturing Corp. v. Laguesma, GR No. 97020, June 8, 1992, the court r uled that the requirement is relevant only when it becomes mandatory to conduct a certification election. In all other instances, the DISCRETION, according to the rulings of this tribunal, ought to be ordinarily exercised in favor of a petition for certification.

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Action on the Petition: Approval Conducting the Certification election: Pre-election Conference

Receipt of notice of entry of final  judgment granting the conduct of certification election 24 Hours

Regional Director shall cause the raffle of the case to an Election Officer 24 Hours from receipt of assignment

Election Officer shall cause the issuance of notice of pre-election conference upon the contending unions and the employer

Pre-election conference Must be within 10 days from receipt of the assignment Must be completed within 3 days from date of the first hearing

Alan Hubert P. Chu 3S

Department Order No. 40-03 amending the implementing rules of the Labor Code provides: Section 1. Raffle of the case. - Within twenty-four (24) hours from receipt of the notice of entry of final judgment granting the conduct of a certification election, the Regional Director shall cause the raffle of the case to an Election Officer who shall have control of the pre-election conference and election proceedings. Section 2. Pre-election conference. Within twenty-four (24) hours from receipt of the assignment for the conduct of a certification election, the Election Officer shall cause the issuance of notice of preelection conference upon the contending unions and the employer, which shall be scheduled within ten (10) days from receipt of the assignment.  The pre-election conference shall set the mechanics for the election and shall determine, among others, the following: (a) date, time and place of the election, which shall not be later than forty-five (45) days from the date of the first pre-election conference, and shall be on a regular working day and within the employer's premises, unless circumstances require otherwise; (b) list of eligible and challenged voters;

Certification Election Must not be later than 45 days from date of the first pre-election conference

Election precincts close

(c) number and location of polling places or booths and the number of ballots to be prepared with appropriate translations, if necessary; (d) name of watchers or representatives and their alternates for each of the parties during election; (e) mechanics and guidelines of the election.

The election precincts shall open and close on the date and time agreed upon during the pre-election conference.

Canvass of votes The opening and canvass shall proceed immediately after the precincts have closed.

Transmit records of the case to Med-arbiter. Med-arbiter shall issue an order proclaiming the results of the election.

Section 3. Waiver of right to be heard. Failure of any party to appear during the pre-election conference despite notice shall be considered as a waiver to be present and to question or object to any of the agreements reached in said pre-election conference. Nothing herein, however, shall deprive the non-appearing party or the employer of its right to be furnished notices of subsequent pre-election conferences and to attend the same. Section 4. Minutes of pre-election conference. - The Election Officer shall keep the minutes of matters raised and agreed upon during the pre-election conference.  The parties shall acknowledge the completeness and correctness of the entries in the minutes by affixing their signatures thereon. Where any of the parties refuse to sign the minutes, the Election Officer shall note such fact in the minutes, including the reason for refusal to sign the same. In all Page 9 of 18

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cases, the parties shall be furnished a copy of the minutes.  The pre-election conference shall be completed within thirty (30) days from the date of the first hearing. Section 6. Posting of Notices.  - The Election Officer shall cause the posting of notice of election at least ten (10) days before the actual date of the election in two (2) most conspicuous places in the company premises. The notice shall contain: (a) the date and time of the election; (b) names of all contending unions; (c) the description of the bargaining unit and the list of eligible and challenged voters.  The posting of the notice of election, the information required to be included therein and the duration of posting cannot be waived by the contending unions or the employer. Conducting the Certification election: The Voters Department Order No. 40-03 amending the implementing rules of the Labor Code provides: Section 5. Qualification of voters; inclusion-exclusion. - All employees who are members of the appropriate bargaining unit sought to be represented by the petitioner at the time of the issuance of the order granting the conduct of a certification election shall be eligible to vote. An employee who has been dismissed from work but has contested the legality of the dismissal in a forum of appropriate  jurisdiction at the time of the issuance of the order for the conduct of a certification election shall be considered a qualified voter, unless his/her dismissal was declared valid in a final judgment at the time of the conduct of the certification election. In case of disagreement over the voters' list or over the eligibility of voters, all contested voters shall be allowed to vote. But their votes shall be segregated and sealed in individual envelopes in accordance with Sections 10 and 11 of this Rule. NB:  The list of voters should be based on the employer-certified list of employees in the CBU or payrolls. If the employer does not submit the list or payrolls, the union may submit its own list i.e. SSS list. Only the employees who are directly employed by the employer and working along the activities to which the employer is

engaged and linked by employer-employee relationship are qualified to participate in the certification election, IRRESPECTIVE of the period of their employment. Conducting the Certification election: The Voting Department Order No. 40-03 amending the implementing rules of the Labor Code provides: Section 7. Secrecy and sanctity of the ballot. - To ensure secrecy of the ballot, the Election Officer, together with the authorized representatives of the contending unions and the employer, shall before the start of the actual voting, inspect the polling place, the ballot boxes and the polling booths. Section 8. Preparation of ballots. - The Election Officer shall prepare the ballots in English and Filipino or the local dialect, corresponding to the number of voters and a reasonable number of extra ballots. All ballots shall be signed at the back by the Election Officer and authorized representative of each of the contending unions and employer. Failure or refusal to sign the ballots shall be considered a waiver thereof and the Election Officer shall enter the fact of such refusal or failure in the records of the case as well as the reason for the refusal or failure to sign. Section 9. Marking of votes.  - The voter must put a cross ( x ) or check ( ü) mark in the square opposite the name of the union of his choice or "No Union" if he/she does not want to be represented by any union. If a ballot is torn, defaced or left unfilled in such a manner as to create doubt or confusion or to identify the voter, it shal l be considered spoiled. If the voter inadvertently spoils a ballot, he/she shall return it to the Election Officer who shall destroy it and give him/her another ballot. Section 10. Challenging of votes. -  An authorized representative of any of the contending unions and employer may challenge a vote before it is deposited in the ballot box only on any of the following grounds: (a) that there is no employer-employee relationship between the voter and the company; (b) that the voter is not a member of the appropriate bargaining unit which petitioner seeks to represent. Section 11. Procedure in the challenge of votes. - When a vote is properly challenged, the Election Officer shall place the ballot in an envelope which shall be sealed in the presence of the voter and the Page 10 of 18

Alan Hubert P. Chu 3S

Reviewer in Labor Relations (CBA Process)

representatives of the contending unions and employer. The Election Officer shall indicate on the envelope the voter's name, the union or employer challenging the voter, and the ground for the challenge. The sealed envelope shall then be signed by the Election Officer and the representatives of the contending unions and employer. The Election Officer shall note all challenges in the minutes of the election and shall be responsible for consolidating all envelopes containing the challenged votes. The envelopes shall be opened and the question of eligibility shall be passed upon only if the number of segregated voters will materially alter the results of the election. Section 12. On-the-spot questions. -  The Election Officer shall rule on any question relating to and raised during the conduct of the election. In no case, however, shall the election officer rule on any of the gr ounds for challenge specified in the immediately preceding section. Section 13. Protest; when perfected. Any party-in-interest may file a protest based on the conduct or mechanics of the election. Such protests shall be recorded in the minutes of the election proceedings. Protests not so raised are deemed waived.  The protesting party must formalize its protest with the Med-Arbiter, with specific grounds, arguments and evidence, within five (5) days after the close of the election proceedings. If not recorded in the minutes and formalized within the prescribed period, the protest shall be deemed dropped. NB:  The employer deserves condemnation for ignoring the employee’s request for permission for some time out to attend to the hearing of their petition before the MedArbiter. It is an act of interference with the employees’ right to self -organization, contrary to the prohibition against unfair labor practice. Conducting the Certification election: Canvassing of Votes  The voting shall close on the date and time agreed upon in the pre-election conference. Canvassing shall immediately follow. Canvassing of votes. - The votes shall be counted and tabulated by the Election Officer in the presence of the representatives of the contending unions. Upon completion of the canvass, the Election Officer shall give each representative a copy of the minutes of the election proceedings and results of the election. The ballots and the tally sheets shall be sealed in an envelope and signed by the Election Officer and the representatives of the contending unions

and transmitted to the Med-Arbiter, together with the minutes and results of the election, within twenty-four (24) hours from the completion of the canvass. Where the election is conducted in more than one region, consolidation of results shall be made within fifteen (15) days from the conduct thereof. NB:  Failure of any party or the employer or his/her/their representative to appear during the election proceedings shall be considered a waiver to be present and to question the conduct thereof. Proclamation and Certification  To have a valid election, at least majority of all the eligible voters in the unit must have cast their votes. Proclamation and certification of the result of the election. - Within twenty-four (24) hours from final canvass of votes, there being a valid election, the Election Officer shall transmit the records of the case to the Med-Arbiter who shall, within the same period from receipt of the minutes and results of election, issue an order proclaiming the results of the election and certifying the union which obtained a majority of the valid votes cast as the sole and exclusive bargaining agent in the subject bargaining unit, under any of the following conditions: (a) no protest was filed or, even if one was filed, the same was not perfected within the five-day period for perfection of the protest; (b) no challenge or eligibility issue was raised or, even if one was raised, the resolution of the same will not materially change the results of the elections.  The winning union shall have the rights, privileges and obligations of a duly certified collective bargaining agent from the time the certification is issued. Where majority of the valid votes cast results in "No Union" obtaining the majority, the Med-Arbiter shall declare such fact in the order. Certification of Collective Bargaining Agent. - The union which obtained a majority of the valid votes  cast shall be certified as the sole and exclusive bargaining agent of all the employees in the appropriate bargaining unit within five (5) days from the day of the election provided no protest is recorded in the minutes of the election. Failure of election. - Where the number of votes cast in a certification or consent election is less than the majority of the number of eligible voters and there are no material challenged votes, the Election Page 11 of 18

Alan Hubert P. Chu 3S

Reviewer in Labor Relations (CBA Process)

Officer shall declare a failure of electi on in the minutes of the election proceedings.

ILLUSTRATION:  The CBU has 100 members.

Effect of failure of election. -  A failure of election shall not bar the filing of a motion for the immediate holding of another certification or consent election within six (6) months from date of declaration of failure of election. Action on the motion. -  Within twentyfour (24) hours from receipt of the motion, the Election Officer shall immediately schedule the conduct of another certification or consent election within fifteen (15) days from receipt of the motion and cause the posting of the notice of certification election at least ten (10) days prior to the scheduled date of election in two (2) most conspicuous places in the establishment. The same guidelines and list of voters shall be used in the election. RUN-OFF ELECTION When proper. - When an election which provides for three (3) or more choices results in none of the contending unions receiving a majority of the valid votes cast, and there are no objections or challenges which if sustained can materially alter the results, the Election Officer shall motu propio conduct a run-off election within ten (10) days from the close of the election proceedings between the labor unions receiving the two highest number of votes; provided, that the total number of votes for all contending unions is at least fifty (50%) percent of the number of votes cast. "No Union" shall not be a choice in the runoff election. Notice of run-off elections shall be posted by the Election Officer at least five (5) days before the actual date of run-off election. Qualification of voters. - The same voters' list used in the certification election shall be used in the run-off election. The ballots in the run-off election shall provide as choices the unions receiving the highest and second highest number of the votes cast. The labor union receiving the greater number of valid votes cast shall be certified as the winner, subject to Section 20, Rule IX. REQUISITES: 1. a VALID ELECTION took place; 2. the election presented at least  THREE CHOICES. e.g. Union One, Union Two, and No Union; 3. not one of the unions obtained the MAJORITY of the valid votes; 4. the total number of votes for all the unions is at least 50% of the votes cast; and 5. there is no unresolved challenged votes or election protest.

80 voted: Union One: 30 Union Two: 15 Union Three: 15 No union: 20 No invalid votes. 1st Question: Which Union won? NONE. REASON: Not one of the unions got the majority of the 80 valid votes. 2nd Question: Is run-off election proper? YES REASON: The contending unions obtained 60 votes which even exceed one-half of the votes cast. The run-off will be between the labor unions receiving the “two highest number of votes.” In the given example, Union One will face BOTH Union Two and  Three because these two tied for the second highest number of union votes. III. CONSENT ELECTION  The election voluntarily agreed upon by the parties to determine the issue of majority representation of all the workers in the appropriate collective bargaining unit. (Book V, Rule I, Sec. 1 of the Omnibus Rules Implementing the Labor Code) CONSENT ELECTION v. CERTIFICATION ELECTION A consent election is voluntarily agreed upon by the parties, with or without the intervention of the Department while a certification election is ordered by the Department. Both may take place in an unorganized or organized establishment. Consent Election; Agreement. -  In case the contending unions agree to a consent election, the Med-Arbiter shall not issue a formal order calling for the conduct of certification election, but shall enter the fact of the agreement in the minutes of the hearing. The minutes of the hearing shall be signed by the parties and attested to by the Med-Arbiter. The Med-Arbiter shall, immediately thereafter, forward the records of the petition to the Regional Director or his/her authorized representative for the determination of the Election Officer by the contending unions through raffle. The first pre-election conference shall be scheduled within ten (10) days from the date of entry of agreement to conduct consent election.

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Alan Hubert P. Chu 3S

Reviewer in Labor Relations (CBA Process)

Effect of Consent Election  The results shall constitute a bar to the holding of a certification election for one (1)  year from the holding of such consent election. Where an appeal has been filed from the results of the consent election, the running of the one-year period shall be suspended until the decision on appeal has become final and executory.

EXCLUSIVE BARGAINING AGENT Any legitimate labor union duly recognized or certified as the sole and exclusive bargaining representative or agent of all the employees in a bargaining unit. (Implementing Rules of the Labor Code, as amended by D.O. No. 40-03)

Appropriateness of Bargaining unit  The determination of what constitutes a proper bargaining unit lies primarily in the discretion of the Bureau, since no individual factor is given by law decisive weight.  The basic test of a bargaining unit’s acceptability or appropriateness is whether it will best assure to all employees the exercise of their collective bargaining rights. Four Factors in determining the Appropriate Bargaining Unit 1. Globe Doctrine –  the express will or desire of the employees 2. Community of Interest Doctrine –  the substantial similarity of work and duties 3. Prior collective bargaining history 4. Employee status, such as:  Temporary, seasonal and probationary employees. COLLECTIVE BARGAINING Obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages, hours of work and all other terms and conditions of employment including proposals for adjusting any grievances or questions arising under such agreement and executing a contract incorporating such agreements if requested by either party but such duty does not compel any party to agree to a proposal or to make any concession. (Art. 252 of the Labor Code) It denotes negotiations looking forward to a collective agreement.

FOUR RELATED PROCESS IN COLLECTIVE BARGAINING 1. Negotiation between the representatives of the management and the union over “wages, hours, and other terms and conditions of employment;” 2. Execution of a written contract embodying the terms agreed upon; 3. Negotiation of any questions arising as to the interpretation or application of the contract; and 4. Negotiation over the terms of a new contract or proposed modifications, when an existing agreement is validly opened for negotiations. JURISDICTIONAL PRECONDITIONS OF COLLECTIVE BARGAINING

Back at the enterprise level, the employer is not under any legal duty to initiate contract negotiation. The mechanics of collective bargaining are set in motion only when the following jurisdictional preconditions are present, namely: 1. possession of the status of majority representation of the employees’ representative in accordance with any of the means of selection or designation provided for by the Labor Code; 2. proof of majority representation; and 3. a demand to bargain under Art. 250 par. (a) of the Labor Code. When single enterprise bargaining available. - Any voluntarily recognized or certified labor union may demand negotiations with its employer for terms and conditions of work covering employees in the bargaining unit concerned. Procedure in single enterprise bargaining A recognized or certified labor union that desires to negotiate with its employer shall submit such intention in writing to the employer, together with its proposals for collective bargaining.  The recognized or certified labor union and its employer may adopt such procedures and processes they may deem appropriate and necessary for the early termination of their negotiations. They shall name their respective representatives to the negotiation, schedule the number and frequency of meetings, and agree on wages, benefits and other terms and conditions of work for all employees covered in the bargaining unit. When multi-employer bargaining available. - A legitimate labor union(s) and employers may agree in writing to come together for the purpose of collective bargaining, provided: Page 13 of 18

Reviewer in Labor Relations (CBA Process)

Alan Hubert P. Chu 3S

(a) only legitimate labor unions who are incumbent exclusive bargaining agents may participate and negotiate in multi-employer bargaining;

4) the duration of the current collective bargaining agreement, if any, entered into by each employer with the counterpart legitimate labor union.

(b) only employers with counterpart legitimate labor unions who are incumbent bargaining agents may participate and negotiate in multi-employer bargaining; and

(c) Each employer or concerned labor union shall express its willingness or refusal to participate in multi-employer bargaining in writing, addressed to its corresponding exclusive bargaining agent or employer. Negotiations may commence only with regard to respective employers and labor unions who consent to participate in multiemployer bargaining;

(c) only those legitimate labor unions who pertain to employer units who consent to multi-employer bargaining may participate in multi-employer bargaining. Procedure in multi-employer bargaining. Multi-employer bargaining may be initiated by the labor unions or by the employers. (a) Legitimate labor unions who desire to negotiate with their employers collectively shall execute a written agreement among themselves, which shall contain the following: 1) the names of the labor unions who desire to avail of multi-employer bargaining; 2) each labor union in the employer unit; 3) the fact that each of the labor unions are the incumbent exclusive bargaining agents for their respective employer units; 4) the duration of the collective bargaining agreements, if any, entered into by each labor union with their respective employers. Legitimate labor unions who are members of the same registered federation, national, or industry union are exempt from execution of this written agreement. (b) The legitimate labor unions who desire to bargain with multi-employers shall send a written notice to this effect to each employer concerned. The written agreement stated in the preceding paragraph, or the certificates of registration of the federation, national, or industry union, shall accompany said notice. Employers who agree to group themselves or use their existing associations to engage in multiemployer bargaining shall send a written notice to each of their counterpart legitimate labor unions indicating their desire to engage in multi-employer bargaining. Said notice shall indicate the following: 1) the names of the employers who desire to avail of multi-employer bargaining; 2) their corresponding legitimate labor organizations; 3) the fact that each corresponding legitimate union is any incumbent exclusive bargaining agent;

(d) During the course of negotiations, consenting employers and the corresponding legitimate labor unions shall discuss and agree on the following: 1) the manner by which negotiations shall proceed; 2) the scope and coverage of the negotiations and the agreement; and 3) where appropriate, the effect of the negotiations on current agreements or conditions of employment among the parties. WHEN BARGAINING SHOULD BEGIN If the three jurisdictional preconditions are present, the collective bargaining should begin within the 12 months following the determination and certification of the employees’ exclusive bargaining representative. STAGES IN THE NEGOTIATION FOR A COLLECTIVE BARGAINING AGREEMENT 1. Preliminary process –  service of a written notice upon the other party with a statement of its proposals.  The other party shall make a reply thereto not later than ten (10) calendar days from receipt of such notice. 2. Negotiation process –  involves the process of meeting not later than ten (10) calendar days from the date of request for conference between the representatives of the employer and the bargaining union for the purpose of discussing and adjusting their differences in order to conclude an agreement. 3. Execution process –  this involves the signing and execution of a written document, ordinarily called the Collective Bargaining Agreement. 4. Publication process –  this involves posting of the CBA in two conspicuous places in the place of work of the company at least five (5) days prior to the ratification thereof by the members of the bargaining unit. Page 14 of 18

Alan Hubert P. Chu 3S

Reviewer in Labor Relations (CBA Process)

5. Ratification process –  this involves the act of ratifying the newlyconcluded CBA by at least majority of the members of the bargaining unit. 6. Registration process –  this pertains to the registration of the duly ratified CBA with the Bureau of Labor Relations or the Regional Office of the DOLE by submitting five (5) copies thereof with the other documentary requirements and paying the required registration fee. 7. Administration process –  This involves the joint administration of the CBA by the employer and the bargaining union during the entire lifetime thereof which is set by law at five (5) years. 8. Interpretation and application process –  this concerns the interpretation, application and enforcement of the stipulations embodied in the CBA to give effect thereto. PROCEDURE IN COLLECTIVE BARGAINING Serve written notice with statement of proposals upon the other party. Reply not later than 10 days from receipt

Reply of other party

Board shall have the power to issue subpoenas requiring the attendance of the parties to such meetings. It shall be the duty of the parties to participate fully and promptly in the conciliation meetings the Board may call; d. During the conciliation proceedings in the Board, the parties are prohibited from doing any act which may disrupt or impede the early settlement of the disputes; and e.  The Board shall exert all efforts to settle disputes amicably and encourage the parties to submit their case to a voluntary arbitrator. COLLECTIVE BARGAINING AGREEMENT A CBA, as used in Art. 252 of the Labor Code, refers to a contract executed upon request of either the employer or the exclusive bargaining representative of the employees incorporating the agreement reached after negotiations with respect to: 1. wages; 2. hours of work and 3. all other terms and conditions of employment including proposals for adjusting any grievances or questions arising under such agreement. FOUR FORMS OF UNFAIR LABOR PRACTICE IN BARGAINING

If differences arise on the basis of notice and reply

Conference If the dispute is not settled

Board shall intervene, call parties to conciliation meetings

a. When a party desires to negotiate an agreement, it shall serve a written notice upon the other party with a statement of its proposals. The other party shall make a reply thereto not later than ten (10) calendar days from receipt of such notice; b. Should differences arise on the basis of such notice and reply, either party may request for a conference which shall begin not later than ten (10) calendar days from the date of request. c.

If the dispute is not settled, the Board shall intervene upon request of either or both parties or at its own initiative and immediately call the parties to conciliation meetings. The

1. Failure or refusal to meet and convene; 2. Evading the mandatory subjects of bargaining; 3. Bad faith in bargaining, including failure or refusal to execute the CBA, if requested; and 4. Gross violations of the CBA DO ECONOMIC EXIGENCIES JUSTIFY REFUSAL TO BARGAIN? NO. An employer has been held not guilty of a refusal to bargain by a damantly REJECTING the union’s economic demands where he is operating at a loss, on a low profit margin, or in a depressed industry, AS LONG AS HE CONTINUES TO NEGOTIATE. MANDATORY SUBJECTS OF BARGAINING 1. Wages 2. Hours of Work 3. Other Terms and Conditions of Employment i.e. bonuses, pensions and retirement plans, vacations and holidays, seniority, transfer, lay-offs, employee workloads, work rules and

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Alan Hubert P. Chu 3S

Reviewer in Labor Relations (CBA Process)

regulations, rent of company houses and union security arrangements.

II. Where a CBA exists General Rule: When there is a collective bargaining agreement, the duty to bargain collectively shall also mean that neither party shall terminate nor modify such agreement during its lifetime.

NB:  Where the subject of the dispute is a mandatory bargaining subject, either party may bargain to an impasse as long as he bargains in good faith. Where the subject is non-mandatory, a party may not insist on bargaining to the point of impasse. His insistence may be construed as evasion of the duty to bargain .

Exception: Either party can serve a written notice to terminate or modify the agreement at least sixty (60) days prior to its expiration date. It shall be the duty of both parties to: 1. keep the status quo and 2. to continue in full force and effect the terms and conditions of the existing agreement during the 60-day period and/or until a new agreement is reached by the parties.

Deadlock –  synonymous with impasse or a standstill which presupposes reasonable effort at good faith bargaining but despite noble intentions does not conclude an agreement between the parties. It signals the need to continue bargaining with the assistance of a third party as conciliator or arbitrator whose first aim is to get the parties back to the negotiating table and help them craft a win-win solution.

RATIFICATION Bargaining in Bad Faith 1. Surface Bargaining  –  going through the motions of negotiating without any legal intent to reach an agreement. 2. Shifting Bargaining Positions  –  repeated shifts in position and attitude whenever a tentative agreement is reached 3. Blue Sky Bargaining  –  making exaggerated or unreasonable proposals. NB:  There is no per test of good faith in bargaining.  The good faith or bad faith is an inference to be drawn from the facts and is largely a matter for the NLRB’s expertise.  The charge of bad faith should be raised while the bargaining is in progress. DUTY TO BARGAIN COLLECTIVELY I. Where NO CBA exists a. to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages, hours of work and all other terms and conditions of employment including proposals for adjusting any grievances or questions arising under such agreement and b. to executing a contract incorporating such agreements if requested by either party but such duty does not compel any party to agree to a proposal or to make any concession.

 The agreement negotiated by the employees’ bargaining agent should be ratified or approved by the majority of all the workers in the bargaining unit.  (Art. 231 of the Labor Code and Book V, Rule XVII, Section 2 of the Implementing Rules) WHEN IS RATIFICATION NOT NEEDED -

When the CBA is a product of an arbitral award by an appropriate government authority or by a voluntary arbitrator. However, the CBA still needs to be posted in two conspicuous places in the workplace, but the posting is for the information of, and not ratification by, the employees affected.

RATIONALE  To require ratification of the CBA in case of arbitral awards will be INCONSISTENT with the nature of arbitration as a dispute-settlement device. EXECUTION Which comes first: ratification or execution?  The Labor Code does not specify, or at least Art. 231 is not clear on the matter. In practice, the sequence usually depends on the likelihood of ratification as judged by the union. If the union strongly feels there will be no ratification problem, the CBA is finalized, signed by the parties, and posted. Page 16 of 18

Alan Hubert P. Chu 3S

Reviewer in Labor Relations (CBA Process)

If there is no such certainty, the CBA is drafted, initiated by the parties, and this “clean draft” is posted. If and when ratified, the CBA is finalized and formal signing follows. (Cesario Alvero Azucena, Jr., The Labor Code with Comments and Cases, Volume II, 7 th  Edition, p. 392) UNWRITTEN OR UNSIGNED AGREEMENT A collective bargaining agreement is valid though not reduced in writing or signed, if neither party requests a written instrument (Art. 252 of the Labor Code)

Neglecting, deviating from or violating the terms of the CBA is considered an unfair labor practice under Art. 248 in relation to Art. 261 of the Labor Co de.

RENEGOTIATION Renegotiation applies only to the renegotiable provisions, that is, those that do not pertain to the identity and political status of the bargaining union. All nonpolitical nonrepresentational issues may be reopened and renegotiated.

REGISTRATION

AUTOMATIC RENEWAL OF THE CBA

WHERE TO FILE

Until a new Collective Bargaining Agreement has been executed by and between the parties, they are duty-bound to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement. The law does not provide for any exception nor qualification as to which of the economic provisions of the existing agreement are to retain force and effect, therefore, it must be understood as encompassing all the terms and conditions in the said agreement. (New Pacific Timber & Supply Company, Inc. v. NLRC, GR No. 124224, March 17, 2000)

 The collective agreement, having been properly ratified, should be registered with the DOLE Regional Office where the bargaining union is registered or where it principally operates. Article 231 requires the registration within thirty (30) calendar days from execution of the agreement. Failure to register the CBA does not make it invalid or unenforceable. Its nonregistration, however, renders the contractbar rule inoperative. REGISTRATION REQUIREMENTS  The application for CBA registration shall be accompanied by the original and two (2) duplicate copies of the following documents which must be certified under oath by the representative(s) of the employer(s) and labor union(s) concerned: (a) the collective bargaining agreement; (b) a statement that the collective bargaining agreement was posted in at least two (2) conspicuous places in the establishment or establishments concerned for at least five (5) days before its ratification; and (c) a statement that the collective bargaining agreement was ratified by the majority of the employees in the bargaining unit of the employer or employers concerned. No other document shall be required in the registration of collective bargaining agreements.

IMPLEMENTATION Article 252 of the Labor Code emphasizes the faithful adherence to the contract as a continuation of the duty to bargain.

DURATION OF THE CBA a. With respect to the representational aspect, the same lasts for 5 years. -

Refers to the identity and majority status of the union that negotiated the CBA as the exclusive bargaining representative.

b. With respect to the other provision (economic and non-economic), the same may last for a maximum period of 3 years after the execution of the CBA. Rules on Effectivity and Retroactivity of New CBA (Apply Only to Provisions Other than Representational) I.

CBA as a Result of Negotiations A. With Previous CBA 1. Effectivity of new CBA entered into within 6 months after the expiration of the old CBA: Retroact to the date following the expiry date. 2. Effectivity of new CBA entered into after 6 months following the expiration of the old CBA: General Rule: Effective on the date agreed upon by the parties. If there is no agreement, the arbitral award will retroact to the day after the end of the 6-month period after the expiration of the old CBA.

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Alan Hubert P. Chu 3S

B. New and First-Ever CBA (No previous CBA) –  Effective on date agreed upon by the parties. II. Arbitral Awards A. With Previous CBA 1. Arbitral awards final within 6 months from old CBA: Retroact to the date following the expiration of the old CBA. 2. Arbitral awards final after 6 months following the expiration of the old CBA: General Rule: the agreement between the parties. If there is no agreement, retroact to the 1st day following the 6-month period. B. New and First-Ever CBA (No previous CBA) - Labor Secretary’s discretion will be followed. Article 253

Article 253-A/256

Freedom Period 1. The notice of 1. Representation intention to aspect of the CBA terminate, amend, shall be for a term of or alter the 5 years. A petition for provisions of the certification election CBA shall be filed may be entertained within the 60-day and a certification period, election may be immediately prior conducted within the to the expiration of 60-day period the CBA. immediately prior to the expiration of the 2. The economic CBA. provisions, however, may be renegotiated not later than 3 years.  Those economic provisions entered within 6 months from the expiration of their term as fixed in the CBA shall retroact to the day immediately following such date, if beyond 6 months the effectivity is by agreement of the parties. What may be changed during the 60-day Freedom Period Re-negotiable Representational provisions of the aspect may be CBA, particularly resolved by holding a the noncertification election. representational aspect (Economic provisions may be renegotiated not later than 3 years). Page 18 of 18