Spectra Notes - Labor Relations - Vol2 2014-15
Short Description
Spectra Notes Labor Relations Vol 2...
Description
Labor Relations Compilation Based on the outline by: Atty. Jefferson Marquez VOLUME 2 UPDATED AS OF: SY: 2014 - 2015
Societas Spectra Legis
Societas Spectra Legis Labor Relations Compilation
Table of Contents TOPIC 12: RIGHT TO SELF-ORGANIZATION ...................................................................................................................... 6 UNIONISM, POLICY OF STATE, CONSTITUTIONAL GUARANTEE ..............................................................................................................................................6 SCOPE AND NATURE OF EMPLOYEE’S RIGHTS ..........................................................................................................................................................................7 CONSTITUTIONAL BASIS .............................................................................................................................................................................................................7 STATUTORY BASIS .......................................................................................................................................................................................................................7 TWO CONCEPTS OF RIGHT TO ASSOCIATION ...........................................................................................................................................................................8 UNION SECURITY CLAUSE OR CLOSED SHOP AGREEMENT ......................................................................................................................................................8 PURPOSE OF EXERCISE OF RIGHT: TWO FOLD PURPOSE/S......................................................................................................................................................9 REPUBLIC ACT NO. 9481 ............................................................................................................................................................................................................9 NON-ABRIDGEMENT OF RIGHT TO SELF-ORGANIZATION......................................................................................................................................................11 UNION MEMBERSHIP AND FORMATION OF UNION: WHO ARE QUALIFIED AND DISQUALIFIED .......................................................................................11 DOCTRINE OF NECESSARY IMPLICATION ................................................................................................................................................................................14 CASE: SMC Supervisors and Exempt Union vs. Hon. Laguesma ........................................................................................................................................................................ 15
REGISTRATION OF UNION; JURISDICTION AND PROCEDURE, JURIDICAL PERSONALITY .....................................................................................................15 JURISDICTION AND PROCEDURE ..............................................................................................................................................................................................21 RIGHTS OF LEGITIMATE LABOR ORGANIZATION ....................................................................................................................................................................23 RIGHTS AND DUTIES OF UNION MEMBERS & NON-UNION MEMBERS (ART. 241) AND QUALIFICATIONS .......................................................................24 RIGHTS .......................................................................................................................................................................................................................................25 DUTIES........................................................................................................................................................................................................................................27 ELECTION OF UNION OFFICERS AND QUALIFICATIONS..........................................................................................................................................................27 CHECK- OFF PROVISION (ART. 113(B)).....................................................................................................................................................................................31 DISAFFILIATION: MEMBERS & UNION .....................................................................................................................................................................................32 INTRA- UNION & INTER-UNION DISPUTES: JURISDICTION OF BLR (ART. 226); OTHER MATTERS ......................................................................................33 CANCELLATION OF UNION REGISTRATION; GROUNDS; JURISDICTION & PROCEDURE ......................................................................................................35 INQUIRY INTO UNION’S FINANCIAL ACTIVITIES: VISITORIAL POWER (ART. 274) .................................................................................................................40 OTHER POWER OF SECRETARY OF LABOR (ART. 273) ............................................................................................................................................................41 OTHER SPECIAL LAWS: ..............................................................................................................................................................................................................42 RA 7916, CHAP. 4 (SPECIAL ECONOMIC ZONE ACT OF 1995) ................................................................................................................................................42 PART I, RULE II, SEC 2 ................................................................................................................................................................................................................42 PART IX, RULE XXIII, SEC. 1-7 ....................................................................................................................................................................................................42
TOPIC 13: RIGHTS OF LEGITIMATE LABOR ORGANIZATION ............................................................................................ 44 RIGHTS IN GENERAL (ART. 242, AS AMENDED) ......................................................................................................................................................................44 EXCLUSIVE BARGAINING AGENT ..............................................................................................................................................................................................45 PURPOSE OF AN EXCLUSIVE BARGAINING AGENT .................................................................................................................................................................45 CERTIFICATION PROCESS: CERTIFICATION ELECTION AND VOLUNTARY RECOGNITION .....................................................................................................45 RULES IN THE CONDUCT OF CERTIFICATION ELECTION (UNDER DO 40-03) ........................................................................................................................45 VOLUNTARY RECOGNITION ......................................................................................................................................................................................................47 CERTIFICATION ELECTION.........................................................................................................................................................................................................48 WHO MAY FILE FOR CERTIFICATION ELECTION ......................................................................................................................................................................54 PRINCIPLE OF PRECLUSION OR COLLATERAL ATTACK ............................................................................................................................................................60 INCLUSION-EXCLUSION PROCEEDINGS ...................................................................................................................................................................................60 CONTRACT BAR RULE ................................................................................................................................................................................................................60 EXCEPTIONS TO THE CONTRACT BAR RULE ............................................................................................................................................................................60 DEADLOCK BAR RULE ................................................................................................................................................................................................................61 CERTIFICATION YEAR RULE .......................................................................................................................................................................................................61
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Societas Spectra Legis Labor Relations Compilation VALID ELECTION AND DOUBLE MAJORITY RULE.....................................................................................................................................................................61 FAILURE OF ELECTION...............................................................................................................................................................................................................62 RUN-OFF ELECTIONS .................................................................................................................................................................................................................62 PRINCIPLE OF FAIR REPRESENTATION .....................................................................................................................................................................................62 SCOPE: BARGAINING UNIT .......................................................................................................................................................................................................62 JURISDICTIONAL PRECONDITIONS TO COLLECTIVE BARGAINING .........................................................................................................................................63 DUTY TO BARGAIN WITH OR WITHOUT A CBA .......................................................................................................................................................................63 FOUR (4) FORMS OF VIOLATION OF DUTY TO BARGAIN........................................................................................................................................................64 RIGHT TO COLLECTIVE BARGAINING .......................................................................................................................................................................................65 SINGLE ENTERPRISE BARGAINING/DECENTRALIZED BARGAINING .......................................................................................................................................65 MULTI-EMPLOYER BARGAINING/INDUSTRY-WIDE BARGAINING .........................................................................................................................................65 WHEN TO BARGAIN ..................................................................................................................................................................................................................67 CONTENTS OF CBA ....................................................................................................................................................................................................................67 GRIEVANCE MACHINERY – .......................................................................................................................................................................................................67 UNION SECURITY CLAUSE .........................................................................................................................................................................................................70 DRUG-FREE WORKPLACE ..........................................................................................................................................................................................................71 MANDATORY SUBJECTS OF BARGAINING ...............................................................................................................................................................................71 IMPASSE .....................................................................................................................................................................................................................................72 BOULWARISM ...........................................................................................................................................................................................................................72 RATIFICATION OF CBA: WHEN NEEDED? ................................................................................................................................................................................72 RATIFICATION OF CBA: WHEN NOT NEEDED? .......................................................................................................................................................................73 REGISTRATION OF CBA .............................................................................................................................................................................................................73 TERM OF CBA: REPRESENTATION ASPECT ..............................................................................................................................................................................74 RENEGOTIATION / RETROACTIVITY OF CBA ............................................................................................................................................................................75 SUBSTITUTIONARY DOCTRINE .................................................................................................................................................................................................76 RIGHT TO FINANCIAL STATEMENTS .........................................................................................................................................................................................76 RIGHT TO PARTICIPATE IN POLICY AND DECISION MAKING PROCESS ..................................................................................................................................77 PRINCIPLE OF CO-DETERMINATION ........................................................................................................................................................................................77 RIGHT TO ENGAGE IN PEACEFUL CONCERTED ACTIVITIES ....................................................................................................................................................77 FORMS OF CONCERTED ACTIVITIES .........................................................................................................................................................................................79 STRIKE AND LOCKOUT ..............................................................................................................................................................................................................79 CONSTITUTIONAL AND STATUTORY BASIS..............................................................................................................................................................................80 KINDS OF STRIKE .......................................................................................................................................................................................................................81 CATEGORIES OF ILLEGAL STIKE ................................................................................................................................................................................................82 NCMB MANUAL OF PROCEDURE FOR CONCILIATION AND PREVENTIVE MEDIATION ........................................................................................................82 STRIKE ........................................................................................................................................................................................................................................82 FORM NOTICE OF STRIKE AND LOCKOUTS; CONTENTS .........................................................................................................................................................82 WHERE TO FILE ..........................................................................................................................................................................................................................83 WHO MAY FILE ..........................................................................................................................................................................................................................83 GROUNDS FOR STRIKE AND LOCK-OUT ...................................................................................................................................................................................83 VALIDITY OF "NO STRIKE" CLAUSE ...........................................................................................................................................................................................85 STRIKEABLE ISSUES ...................................................................................................................................................................................................................85 NON-STRIKEABLE ISSUES ..........................................................................................................................................................................................................85 ASSUMPTION OF JURISDICITON/SEC./DOLE (ART. 263(G)) ...................................................................................................................................................86 DO-40-H-13, S. 2013, ................................................................................................................................................................................................................86 NATURE OF POWER; SCOPE .....................................................................................................................................................................................................87 EFFECT OF ASSUMPTION ..........................................................................................................................................................................................................87
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Societas Spectra Legis Labor Relations Compilation APPEAL TO OFFICE OF THE PRESIDENT; WHEN ALLOWED & PROCEDURE ...........................................................................................................................88 PROHIBITED ACTIVITIES ............................................................................................................................................................................................................90 STRIKE AREA ..............................................................................................................................................................................................................................90 IMPROVED OFFER BALLOTING .................................................................................................................................................................................................90 CONSEQUENCES OF LEGAL AND ILLEGAL STRIKE ...................................................................................................................................................................91 IN PARI DELICTO RULE ..............................................................................................................................................................................................................91 ARREST AND DETENTION OF UNION MEMBERS ....................................................................................................................................................................91 JOINT DOLE-PNP-PEZA GUIDELINES IN THE CONDUCT OF PNP PERSONNEL, ECONOMIC ZONE POLICE AND SECURITY GUARDS, COMPANY SECURITY GUARDS AND SIMILAR PERSONNEL DURING LABOR DISPUTES ........................................................................................................93 LEGAL REMEDIES OF EMPLOYER & UNION IN CASE OF STRIKE/LOCKOUT ...........................................................................................................................93 JURISDICTION & PROCEDURE BEFORE THE LABOR ARBITER & THE SECRETARY OF LABOR................................................................................................93 INNOCENT BY-STANDER RULE..................................................................................................................................................................................................93 ANTI-INJUNCTION BAN .............................................................................................................................................................................................................94 FREEDOM AT WORKPLACE .......................................................................................................................................................................................................95
TOPIC 14: REVISED GUIDELINES OF THE NCMB FOR THE CONDUCT OF VOLUNTARY ARBITRATION PROCEEDINGS ............................................................................................................................................................ 100 ART. 260, 261, 262, 262-A, 262-B ......................................................................................................................................................................................... 100 DO-40-03 ................................................................................................................................................................................................................................ 101 ART. 211 (G), LABOR CODE & SEC. 3, ART XIII, 1987 CONSTITUTION................................................................................................................................. 103 Art. 255 & ART. 277 (G) & (H)................................................................................................................................................................................................ 104 FRAMEWORK OF ALTERNATIVE DISPUTE RESOLUTION FOR DISPUTE PREVENTION: ...................................................................................................... 105 1. CONCILIATION- MEDIATION .............................................................................................................................................................................................. 105 2. VOLUNTARY ARBITRATION................................................................................................................................................................................................ 105 3. GRIEVANCE HANDLING ...................................................................................................................................................................................................... 105 4. WORKPLACE COOPERATION (LABOR- MANAGEMENT COUNCIL) .................................................................................................................................. 106 5. EMPLOYEE INVOLVEMENT (EI) & EMPLOYMENT PARTICIPATION SCHEMES ................................................................................................................ 106 6. COLLECTIVE BARGAINING ................................................................................................................................................................................................. 108 STRIKE OR LOCK-OUT INTERVENTION ON THE PART OF DOLE: CONCILIATION/MEDIATION .......................................................................................... 108 A. CONCILIATION/MEDIATION (NCMB), ............................................................................................................................................................................... 108 B. VOLUNTARY (ART. 262) ..................................................................................................................................................................................................... 108 C. COMPULSORY ARBITRATION (ART. 217) .......................................................................................................................................................................... 108 D. ASSUMPTION OF JURISDICTION (ART. 263 (G)) .............................................................................................................................................................. 109 GRIEVANCE; CONCEPT; & SCOPE .......................................................................................................................................................................................... 109 SUBMISSION AGREEMENT; NOTICE TO ARBITRATE; ARBITRATION CLAUSE ..................................................................................................................... 110 GRIEVANCE MACHINERY; UNRESOLVED GRIEVANCES ........................................................................................................................................................ 110 COLLECTIVE BARGAINING AGREEMENT & COMPANY PERSONNEL POLICIES (CONTRACT INTERPRETATION & ENFORCEMENT DISPUTE) ................ 110 DISPUTES INVOLVING PRODUCTIVITY INCENTIVE PROGRAMS UNDER RA 6971 (PRODUCTIVITY INCENTIVES ACT) ..................................................... 111 GRIEVANCE PROCEDURE; GRIEVANCE COMMITTEE ........................................................................................................................................................... 111 VOLUNTARY ARBITRATION; DISTINGUISHED FROM COMPULSORY ARBITRATION .......................................................................................................... 111 DESIGNATION OR APPOINTMENT OF VOLUNTARY ARBITRATOR; AD-HOC AND PERMANENT ....................................................................................... 112 JURISDICTION OF VOLUNTARY ARBITRATOR; ORIGINAL AND EXCLUSIVE; & CONCURRENT ........................................................................................... 112 POWERS AND DUTIES OF VOLUNTARY ARBITRATOR .......................................................................................................................................................... 113 COST OF VOLUNTARY ARBITRATION AND FEES OF ARBITRATOR ...................................................................................................................................... 114 NATURE OF PROCEEDINGS; INITIAL CONFERENCE; ARBITRATION ISSUES; GROUND RULES; FILING OF POSITION PAPERS AND OTHER PLEADINGS; CLARIFICATORY HEARING; RECORDING OF PROCEEDINGS; ARBITRATION CONFERENCE .......................................................................... 114 DECISION OF VOLUNTARY ARBITRATOR AND PROHIBITED MOTION; APPEAL PROCEDURE (RULE 43, RULES OF CIVIL PROCEDURE) AND RULE 45 ................................................................................................................................................................................................................................... 116 COMPLIANCE OF AND EXECUTION OF DECISIONS OR ORDER OF VOLUNTARY ARBITRATOR ......................................................................................... 116
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Societas Spectra Legis Labor Relations Compilation TOPIC 15: UNFAIR LABOR PRACTICE ............................................................................................................................ 117 REQUISITES ............................................................................................................................................................................................................................. 117 CONDITIONS: .......................................................................................................................................................................................................................... 117 ACTS OF UNFAIR LABOR PRACTICE: EMPLOYER & UNION .................................................................................................................................................. 117 TERMS ..................................................................................................................................................................................................................................... 119 PRESCRIPTIVE PERIOD............................................................................................................................................................................................................ 120 PENAL PROVISION .................................................................................................................................................................................................................. 120 JURISDICTION ......................................................................................................................................................................................................................... 120 PROCEDURE ............................................................................................................................................................................................................................ 121 RELIEF AGAINST UNFAIR LABOR PRACTICES ........................................................................................................................................................................ 121
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Societas Spectra Legis Labor Relations Compilation
TOPIC 12: RIGHT TO SELF-ORGANIZATION UNIONISM, POLICY OF STATE, CONSTITUTIONAL GUARANTEE The State promotes unionism in Art. III Sec 8 and Art. XIII Sec 3 of the 1987 Constitution. “ART III, Section 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged.” “ART XIII, Section 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth.”
The Constitution contains provisions which promote unionism and one of the provisions include: 1.
the right to self-organization; (Art. 243)
2.
the right to collective bargaining and negotiations; and (Art. 243; 244)
3.
peaceful concerted activities (provision on strikes or lockouts Art. 263)
All three constitutional rights promote unionism Why? The State promotes unionism for full protection of labor – more benefits are obtained because you are given the opportunity to bargain for benefits and privileges. Therefore, there is a stronger voice to air out your concerns, thus more chance that your request will be granted by the employers. Employer and employee do not stand in equal footing in terms of collective bargaining because in order to bargain you need education; skills and experience; Individual bargaining is NOT as effective as collective bargaining These rights are very important to the worker in terms of improving their conditions of employment because they can raise concerns and make the employer aware of the lacking benefits. It is better to have collective bargaining. There is no provision in the Constitution nor in the Labor Code which promotes individual bargaining. Constitutional right of employees to self-organization is recognized in the labor code (Art. 243 and 244) It is not easy for an individual EE to bargain with the ER. All three rights should come together or be present in order to be effective. The workers may exercise collective bargaining when they have organized themselves as a labor organization. Thru the exercise of this right they can negotiate with management in equal level and with more persuasion than if they were to individually and independently bargain for the improvement of their conditions. The ER and EE do not stand in equal footing that is why to balance this, the law gives more protection to labor – to offset the social and economic imbalance.
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Societas Spectra Legis Labor Relations Compilation SCOPE AND NATURE OF EMPLOYEE’S RIGHTS Both private and public EEs have a right to association. Right to strike is only applicable to private establishments. For Public employees, peaceful picketing is allowed (ex. Wearing arm bands) – during working hours, you cannot march around, however, during lunch period or break time such is allowed. On the right of collective bargaining, only those GOCCs without original charter established under the Corporation Code are allowed. Those under the Civil Service Law are not allowed to collectively bargain because the salary of those working in the civil service is already fixed by law and thus cannot be subject to collective bargaining. What the government EE can do is to lobby with Congress to enact laws which will improve their compensation and benefits. Private EEs enjoy broader rights than public EEs. However, as regards to the right to association, both exercise such right.
CONSTITUTIONAL BASIS Article III Section 8 (1987 Constitution) The right of the people in the public and private sectors to form unions, associations or societies for purposes not contrary to law shall not be abridged. Article XIII Section 3 (1987 Constitution) The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth.
STATUTORY BASIS Article 243 Coverage and Employees’ Right to Self Organization All persons employed in commercial, industrial and agricultural enterprises and in religious, charitable, medical or educational institutions whether operating for profit or not shall have the right to self-organization and to form join or assist labor organizations of their own choosing for purposes of collective bargaining. Ambulant, intermittent and itinerant workers, self-employed people, rural workers and those without any definite employers may form labor organizations for their mutual aid and protection. Article 244 Right of the Employees in the Public Service Employees of government corporations established under the Corporation Code shall have the right to organize and to bargain collectively with their respective employers. All other employees in the civil service shall have the right to form associations for purposes not contrary to law.
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Societas Spectra Legis Labor Relations Compilation DO. No. 40-03 Series of 2003, DO. No. 40-A-3, 40-B-03 and 40-C-05 are the implementing rules issued by the DOLE to enforce the right to association. Recently Congress enacted RA 9481 otherwise known as “AN ACT STRENGTHENING THE WORKERS' CONSTITUTIONAL RIGHT TO SELF-ORGANIZATION, AMENDING FOR THE PURPOSE PRESIDENTIAL DECREE NO. 442, AS AMENDED, OTHERWISE KNOWN AS THE LABOR CODE OF THE PHILIPPINES”
TWO CONCEPTS OF RIGHT TO ASSOCIATION NOTE: The right to association is broader than the right to self-organization 1.) Liberty or freedom – the absence of legal restraint whereby an employee may act for himself without being circumvented by law.
he may act as he or she pleases in the absence of legal restraint
unless there is a specific law which prevents you from performing or doing a particular act, an EE may act for himself without being circumvented or restrained by law.
2.) Power to join or not to join – a person may choose to join or not to join and which organization to join and he may disassociate or withdraw from the organization
Freedom of association- the right to join an organization Negative freedom of association – the right NOT to join an organization, but not absolute because of the closed shop agreement.
Note: However in RA 3350 otherwise known as the Industrial Peace Act -“but such agreement shall not cover members of any religious sects which prohibit affiliation of their members in any such labor organization.”… The free exercise of religious profession or belief is superior to contract rights. In case of conflicts the latter must yield to the former (Victoriano vs. Elizalde Rope Worker’s Union et al)
General Rule: Employee is free to join/not to join an association. An individual has a freedom of association and the negative freedom of association (inherent right of every individual) Exception to the negative freedom of association: Closed-shop agreement (as regulated by Art. 248 of Labor Code and CBA) where employee, under pain of dismissal has no choice but to join the existing labor organization. Closed shop agreement- agreement between employer and union to require membership in a union for purpose of continued employment
UNION SECURITY CLAUSE OR CLOSED SHOP AGREEMENT Article 248 (e) Nothing in this Code or in any other law shall stop the parties from requiring membership in the recognized collective bargaining agent as a condition for employment except those employees who are already members of another union at the time of the collective bargaining agreement.
Exceptions to the exception: 1.
If employee is a member of a religious organization which prohibits employee from affiliating with any labor organization then this right prevails over closed-shop provision. (Victoriano vs. Elizalde) Currently: Iglesia ni Kristo allows its members to join labor unions but not allowed to join a strike
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If, at the time of the signing of the CBA, employee is already a member of another labor union. (Art. 248)
3.
When it is expressly excluded in the CBA
PURPOSE OF EXERCISE OF RIGHT: TWO FOLD PURPOSE/S 1.) Collective Bargaining- this is the primary purpose (if absent, then it is a useless endeavour) It is only when you are certified as sole and exclusive bargaining agent (vote of confidence is necessary) can you then collectively bargain 2.) Mutual Aid and Protection- Members form an association wherein they give contributions for mutual benefits. Ex. Social organizations and cooperatives – they contribute to provide housing, scholarship, etc
REPUBLIC ACT NO. 9481 “AN ACT STRENGTHENING THE WORKERS' CONSTITUTIONAL RIGHT TO SELF-ORGANIZATION, AMENDING FOR THE PURPOSE PRESIDENTIAL DECREE NO. 442, AS AMENDED, OTHERWISE KNOWN AS THE LABOR CODE OF THE PHILIPPINES” SECTION 1. Article 234 of Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines, is hereby further amended to read as follows: "ART. 234. Requirements of Registration. - A federation, national union or industry or trade union center or an independent union shall acquire legal personality and shall be entitled to the rights and privileges granted by law to legitimate labor organizations upon issuance of the certificate of registration based on the following requirements: (a) Fifty pesos (P50.00) registration fee; (b) The names of its officers, their addresses, the principal address of the labor organization, the minutes of the organizational meetings and the list of the workers who participated in such meetings; (c) In case the applicant is an independent union, the names of all its members comprising at least twenty percent (20%) of all the employees in the bargaining unit where it seeks to operate; (d) If the applicant union has been in existence for one or more years, copies of its annual financial reports; and (e) Four copies of the constitution and by-laws of the applicant union, minutes of its adoption or ratification, and the list of the members who participated in it." SEC. 2. A new provision is hereby inserted into the Labor Code as Article 234-A to read as follows: "ART. 234-A. Chartering and Creation of a Local Chapter. - A duly registered federation or national union may directly create a local chapter by issuing a charter certificate indicating the establishment of the local chapter. The chapter shall acquire legal personality only for purposes of filing a petition for certification election from the date it was issued a charter certificate. The chapter shall be entitled to all other rights and privileges of a legitimate labor organization only upon the submission of the following documents in addition to its charter certificate: a. b.
The names of the chapter's officers, their addresses, and the principal office of the chapter; and The chapter's constitution and by-laws: Provided, That where the chapter's constitution and by-laws are the same as that of the federation or the national union, this fact shall be indicated accordingly.
The additional supporting requirements shall be certified under oath by the secretary or treasurer of the chapter and attested by its president." SEC. 3. Article 238 of the Labor Code is hereby amended to read as follows: "ART. 238. Cancellation of Registration. - The certificate of registration of any legitimate labor organization, whether national or local, may be cancelled by the Bureau, after due hearing, only on the grounds specified in Article 239 hereof." SEC. 4. A new provision is hereby inserted into the Labor Code as Article 238-A t o read as follows:
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Societas Spectra Legis Labor Relations Compilation "ART. 238-A. Effect of a Petition for Cancellation of Registration. - A petition for cancellation of union registration shall not suspend the proceedings for certification election nor shall it prevent the filing of a petition for certification election. In case of cancellation, nothing herein shall restrict the right of the union to seek just and equitable remedies in the appropriate courts." SEC. 5. Article 239 of the Labor Code is amended to read as follows: "ART. 239. Grounds for Cancellation of Union Registration. - The following may constitute grounds for cancellation of union registration: a.
b. c.
Misrepresentation, false statement or fraud in connection with the adoption or ratification of the constitution and by-laws or amendments thereto, the minutes of ratification, and the list of members who took part in the ratification; Misrepresentation, false statements or fraud in connection with the election of officers, minutes of the election of officers, and the list of voters; Voluntary dissolution by the members."
SEC. 6. A new provision, Article 239-A is inserted into the Labor Code to read as follows: "ART. 239-A. Voluntary Cancellation of Registration. - The registration of a legitimate labor organization may be cancelled by the organization itself. Provided, That at least two-thirds of its general membership votes, in a meeting duly called for that purpose to dissolve the organization: Provided, further, That an application to cancel registration is thereafter submitted by the board of the organization, attested to by the president thereof." SEC. 7. A new provision, Article 242-A is hereby inserted into the Labor Code to read as follows: "ART. 242-A. Reportorial Requirements. - The following are documents required to be submitted to the Bureau by the legitimate labor organization concerned: a.
b. c. d.
Its constitution and by-laws, or amendments thereto, the minutes of ratification, and the list of members who took part in the ratification of the constitution and by-laws within thirty (30) days from adoption or ratification of the constitution and by-lam or amendments thereto; Its list of officers, minutes of the election of officers, and list of voters within thirty (30) days from election; Its annual financial report within thirty (30) days after the close of every fiscal year; and Its list of members at least once a year or whenever required by the Bureau.
Failure to comply with the above requirements shall not be a ground for cancellation of union registration but shall subject the erring officers or members to suspension, expulsion from membership, or any appropriate penalty." SEC. 8. Article 245 of the Labor Code is hereby amended to read as follows: "ART. 245. Ineligibility of Managerial Employees to Join any Labor Organization; Right of Supervisory Employees. - Managerial employees are not eligible to join, assist or form any labor organization. Supervisory employees shall not be eligible for membership in the collective bargaining unit of the rank-and-file employees but may join, assist or form separate collective bargaining units and/or legitimate labor organizations of their own. The rank and file union and the supervisors' union operating within the same establishment may join the same federation or national union." SEC. 9. A new provision, Article 245-A is inserted into the Labor Code to read as follows: "ART. 245-A. Effect of Inclusion as Members of Employees Outside the Bargaining Unit. - The inclusion as union members of employees outside the bargaining unit shall not be a ground for the cancellation of the registration of the union. Said employees are automatically deemed removed from the list of membership of said union." SEC. 10. Article 256 of the Labor Code is hereby amended to read as follows: "ART. 256. Representation Issue in Organized Establishments. - In organized establishments, when a verified petition questioning the majority status of the incumbent bargaining agent is filed by any legitimate labor organization including a national union or federation which has already issued a charter certificate to its local chapter participating in the certification election or a local chapter which has been issued a charter certificate by the national union or federation before the Department of Labor and Employment within the sixty (60)-day period before the expiration of the collective bargaining agreement, the Med-Arbiter shall automatically order an election by secret ballot when the verified petition is supported by the written consent of at least twenty-five percent (25%) of all the employees in the bargaining unit to ascertain the will of the employees in the appropriate bargaining unit. To have a valid election, at least a majority of all eligible voters in the unit must have cast their votes. The labor union receiving the majority of the
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Societas Spectra Legis Labor Relations Compilation valid votes cast shall be certified as the exclusive bargaining agent of all the workers in the unit. When an election which provides for three or more choices results in no choice receiving a majority of the valid votes cast, a run-off election shall be conducted 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 percent (50%) of the number of votes cast. In cases where the petition was filed by a national union or federation, it shall not be required to disclose the names of the local chapter's officers and members. At the expiration of the freedom period, the employer shall continue to recognize the majority status of the incumbent bargaining agent where no petition for certification election is filed." SEC. 11. Article 257 of the Labor Code is hereby amended to read as follows: "ART. 257. Petitions in Unorganized Establishments. - In any establishment where there is no certified bargaining agent, a certification election shall automatically be conducted by the Med-Arbiter upon the filing of a petition by any legitimate labor organization, including a national union or federation which has already issued a charter certificate to its 1ocal/chapter participating in the certification election or a local/chapter which has been issued a charter certificate by the national union or federation. In cases where the petition was filed by a national union or federation, it shall not be required to disclose the names of the local chapter's officers and members.” SEC. 12. A new provision, Article 258-A is hereby inserted into the Labor Code to read as follows: "ART. 258-A. Employer as Bystander. - 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 should the Med-Arbiter act favorably on the petition."
NOTE: See also IRR under DO No. 40-03 as amended by DO Nos. 40-A-03, 40-B-03, 40-C-05, 40-D-05, 40-E-05 40-F-03, 40G-10 & 40-H-13.
NON-ABRIDGEMENT OF RIGHT TO SELF-ORGANIZATION ART. 246 It shall be unlawful for any person to restrain, coerce, discriminate against or unduly interfere with employees and workers in their exercise of the right to self-organization. Such right shall include the right to form, join or assist labor organization for the purpose of collective bargaining through representatives of their own choosing and to engage in lawful concerted activities for the same purpose or for their mutual aid or protection subject to the provision in Article 264 of this code
Note: This right to self organization is protected by law and should not be abridged or curtailed. The code says that an act tending to weaken or defeat this right is unlawful and is considered as an “Unfair Labor Practice” and shall be dealt with by law.
UNION MEMBERSHIP AND FORMATION OF UNION: WHO ARE QUALIFIED AND DISQUALIFIED THOSE QUALIFIED: (DO 40-03; 40-A-03; 40-B-03) Article 243. Coverage and employees’ right to self-organization. All persons employed in commercial, industrial and agricultural enterprises and in religious, charitable, medical, or educational institutions, whether operating for profit or not, shall have the right to self-organization and to form, join, or assist labor organizations of their own choosing for purposes of collective bargaining. Ambulant, intermittent and itinerant workers, self-employed people, rural workers and those without any definite employers may form labor organizations for their mutual aid and protection. (As amended by Batas Pambansa Bilang 70, May 1, 1980) Article 244. Right of employees in the public service. Employees of government corporations established under the Corporation Code shall have the right to organize and to bargain collectively with their respective employers. All other employees in the civil service shall have the right to form associations for purposes not contrary to law. (As amended by Executive Order No. 111, December 24, 1986)
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Societas Spectra Legis Labor Relations Compilation Rule II, Section 2 of DO 40-03 as amended. Who may join labor unions and workers associations. - All persons employed in commercial, industrial and agricultural enterprises, including employees of government owned or controlled corporations without original charters established under the Corporation Code, as well as employees of religious, charitable, medical or educational institutions whether operating for profit or not, shall have the right to selforganization and to form, join or assist labor unions for purposes of collective bargaining provided, however, that supervisory employees shall not be eligible for membership in a labor union of the rank-and-file employees but may form, join or assist separate labor unions of their own. Managerial employees shall not be eligible to form, join or assist any labor unions for purposes of collective bargaining. Alien employees with valid working permits issued by the Department may exercise the right to self-organization and join or assist labor unions for purposes of collective bargaining if they are nationals of a country which grants the same or similar rights to Filipino workers, as certified by the Department of Foreign Affairs, or which has ratified either ILO Convention No. 87 and ILO Convention No. 98. For purposes of this section, any employee, whether employed for a definite period or not, shall beginning on the first day of his/her service, be eligible for membership in any labor organization. All other workers, including ambulant, intermittent and other workers, the self-employed, rural workers and those without any definite employers may form labor organizations for their mutual aid and protection and other legitimate purposes except collective bargaining.”(DO 40-c-05)
SUMMARY OF THOSE QUALIFIED: 1. All persons employed in commercial, industrial and agricultural enterprises including: a. b. c.
Commercial establishments – those engaged in sale of goods or services. Ex. Shoemart Industrial establishments – those engaged in the manufacture and processing of goods from raw materials. Ex. Philip Morris Agricultural establishments – engaged in the growing or planting of crops. Ex. Dole Phil., farmers
2. Employees of government owned or controlled corporations without original charters established under the Corporation Code.
Article 244, LC
if employed in a government corporation established under the Corporation Code: they have the right to self organization and collective bargaining
with original charter: city of cebu- not covered
without original charter: example
3. Employees of religious, charitable medical or education institutions operating for profit or not. Religious, Charitable, Medical, and Educational Institutions – if Iglesia Ni Kristo hires workers, such workers can form a labor organization. In these types of establishments EEs or workers can exercise the right to self organization regardless of whether the establishment operates for profit or not. 4. Alien employees with valid working permits issued by the Department if they are nationals of a country which grants the same or similar rights to Filipino workers as certified by the Department of Foreign Affairs. (Reciprocity rule) Alien employees (Article 269) – absolutely prohibited from FORMING labor organizations but they can JOIN or ASSIST provided they have valid permits and the country where they are nationals grant the same rights to Filipinos. General rule: Alien EEs are strictly prohibited from engaging directly or indirectly in all forms of trade union activities Exceptions: Under the Labor Code: (1) if they are working in the country (2) with valid working permits issued by the DOLE; (3) aliens are nationals of a country which grants the same or similar rights to Filipino workers (reciprocity rule); (4) Under the IRR: that the country to which the alien is a national has participated in the ratification of ILO convention #87 and 98 as certified by the DFA (these conventions pertain to the right to collectively bargain) 5. All other workers including ambulant, intermittent and other workers, the self-employed people, rural workers and those without any definite employers may form labor organizations for their mutual aid and protection and other legitimate purposes except collective bargaining. Note: Everybody can exercise their right to association whether in the public or private sector.
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Societas Spectra Legis Labor Relations Compilation 6. Security Guards Under RA 6715, they may now freely join a labor organization of the rank-and –file or that of the supervisory union depending on their rank in recognition of their constitutional right to self organization 7. Workers in export processing zones
SUMMARY OF THOSE DISQUALIFIED: 1.
EMPLOYEES OF GOVERNMENT CORPORATIONS ESTABLISHED THROUGH SPECIAL CHARTERS
2.
If the corporation was created by original charter or under the civil service law: they have the right to form an organization for mutual aid and protection but they cannot engage in collective bargaining. The law which spells out and governs the right to associate for government EEs is EO 180 which provides the coverage and scope of self organization of government EEs. The right of Government to deal and negotiate with their respective employers is NOT quite as extensive as that of private employees. Excluded from negotiation by government employees are the “terms and conditions of employment that are fixed by law” NOT negotiable are- matters that require appropriation of funds (e.g. increase in salary emoluments and other allowances, car plan, special hospitalization, increase in retirement benefits) and those that involve the exercise of management prerogatives (e.g. appointment, promotion, assignment, penalties as a result of disciplinary action) NEGOTIABLE- matters such as schedule of vacation and other leaves, work assignment of pregnant women; recreational, social, athletic activities and facilities The right to self organization pertain to all EEs of all branches, subdivision, instrumentalities, and agencies of the government, including GOCCs with original charters. Members of the AFP, firemen, police officers, policemen, and jail guards are excluded from EO 180 or NOT allowed to unionize for reasons of public security and safety. The exception in EO 180 is constitutional because there is substantial distinction. The protection of the state is more superior to contractual rights. It is an exercise of police power
MANAGERIAL EMPLOYEES Article 245. Ineligibility of managerial employees to join any labor organization; right of supervisory employees. Managerial employees are not eligible to join, assist or form any labor organization. Supervisory employees shall not be eligible for membership in a labor organization of the rank-and-file employees but may join, assist or form separate labor organizations of their own. (As amended by Section 18, Republic Act No. 6715, March 21, 1989) ART. 245-A. Effect of Inclusion as Members of Employees Outside the Bargaining Unit. - The inclusion as union members of employees outside the bargaining unit shall not be a ground for the cancellation of the registration of the union. Said employees are automatically deemed removed from the list of membership of said union." The rationale for this inhibition has been stated to be because if these managerial employees will belong to or be affiliated with a Union, the latter might not be assured of their loyalty to the union in view of evident Conflict in interest. The Union can also be company-dominated with the presence of managerial employees in union membership. (United Pepsi-Cola Supervisory Union vs. Laguesma) Categories of Employees: (1) Managerial; (2) Supervisory; (3) Rank-and-file “Managerial employee" is one who is vested with the powers or prerogatives to lay down and execute management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees. (Art. 212)
Managerial employees are absolutely prohibited (absolute disqualification) to form, join and assist labor union because there will be conflict of interest. Their loyalty should be with the owners. They represent the management and therefore they cannot bargain with themselves. They can, however, form organizations for mutual aid and protection.
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In order to determine if you are a managerial employee it is NOT based on the title rather it is dependent on your powers and duties (ex. Power to hire, fire, suspend, discipline EEs)
The three (3) types of managerial employees are as follows: a.
Top management; - responsible for the overall management of the organization; establishes operating policies b. Middle management; - direct the activities of other managers and sometimes also those of operating employees c. First-line management. – direct operating employees only, they do not supervise other managers (See United Pepsi0Cola Supervisors Union vs. Laguesma, 288 SCRA 15 and Paper Industries Corp. of the Philippines vs. Laguesma, G. R. No. 101738, April 12, 2000) “Supervisory employees” are those who, in the interest of the employer, effectively recommend such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment (Art. 212)
As a general rule, only top and middle managers are not allowed to join any labor organization. First-line managers (or supervisory employees) are allowed to join a supervisory union but not the union of rank-and-file employees or vice-versa. In fact, the law does not allow mixed membership of both supervisory and rank-and-file employees in one union.
The principal distinction between managerial employees and supervisory employees is: the former have the power to decide and do managerial acts; while the latter have the power only to recommend managerial acts such as laying down policy, hiring or dismissal of employees and the like.
Manager makes policy decisions or people decisions or both; supervisor recommends those decisions
Power of supervisor: the recommendation is:
a. Discretionary or judgmental (not clerical) b. Independent c. Effective (given weight in making the management decision) The “separation of unions” doctrine simply means that the affiliation of both the rank-and-file union and supervisory union in the same company with one and the same federation is not allowed if the rank-and-file employees are under the direct supervision of the supervisors composing the supervisory union. If not, said affiliation with one and the same federation is allowed. Rationale of segregation of rank-and-file and supervisors is founded on fairness to the employer and the employees. It will be detrimental to the employer if the supervisors and the rank-and-file as members of only one union could take a common stand against the employer Supervisory employees are relatively prohibited (relative disqualification) since they cannot associate with the rank and file but they can form their own union because of conflict of interest. Areas where conflict of interest may arise: a.
Area of discipline- there will be no one to discipline the rank and file employees (Atty Marquez: if barkada na sila, sino pa ang mag didiscipline?) b. Area of collective bargaining- their loyalty will be divided. They can serve as spies for or against the ERs. “Rank and file employees” - neither managerial nor supervisory in nature (IRR)
DOCTRINE OF NECESSARY IMPLICATION 3.
CONFIDENTIAL EMPLOYEES (BASIS: DOCTRINE OF NECESSARY IMPLICATION)
Reason for disqualification: Conflict of Interest
They are those who by reason of their positions or nature of work are required to assist or act in a fiduciary manner to managerial employees and hence are likewise privy to sensitive and highly confidential records. (Metro Lab Industries vs. Confessor et al)
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Societas Spectra Legis Labor Relations Compilation They assist and act in a confidential capacity to or have access to confidential matters or persons who exercise managerial functions in the field of labor relations. As such the rationale behind the ineligibility of managerial employees to form, assist or join a labor union equally applies to them (Philips Industrial Development vs. NLRC.)
Confidential employee may be a supervisory or even a rank-and-file employee Confidential employees are excluded from the bargaining unit and closed-shop clause Access to information which is regarded by the employer to be confidential from the business standpoint, such as financial information or technical trade secrets will NOT render an employee a confidential employee
“Doctrine of Necessary Implication” - what is implied in a statute is as much a part thereof as that which is expressed.
If you are a supervisor and at the same time you hold a confidential position, you are NOT qualified to form, join, or assist a union.
If you are a rank and file EE but you hold a confidential position, you are NOT qualified to form, join or assist a union based on the doctrine of necessary implication.
CASE: SMC Supervisors and Exempt Union vs. Hon. Laguesma Under the “confidential employee rule”, confidential employees are not allowed to join any union (as they are treated like managers) when they: Assist or act in a confidential capacity, to persons who formulate, determine, and effectuate management policies specifically in the field of labor relations. Otherwise, if these two conditions do not concur, they can join a union. Simply put, if the confidential information to which an employee has access has nothing to do with labor relations, such employee cannot be considered a confidential employee under this rule.
4.
MEMBERS (CO-OWNERS OF A COOPERATIVE)
An owner cannot bargain with himself or his co-owners (San Jose Electric Service Corporation Inc. vs. Ministry of Labor)
5.
Members of cooperatives – they CANNOT form, join, or assist a labor organization except for mutual aid and protection. Article 243 uses the word “employed” when referring to those who can form, join, or assist labor organizations. Members of a cooperative are not employed by the cooperative rather they are owners and thus it would be absurd for an owner to bargain with itself. Cooperatives with employees who are NOT members or co-owners are entitled to exercise the rights of all workers to organization, collective bargaining negotiations
MEMBERS OF INTERNATIONAL ORGANIZATIONS By the Doctrine of Incorporation, they are immune from suit and cannot be subject to local jurisdiction. (International Catholic Migration Commission vs. Calleja; Kapisanan ng mga Manggagawa at TAC sa IRRIOLALIA vs. Secretary of Labor and Employment)
E.g. International Rice Research Institute (IRRI) International organization is set up by agreement between 2 or more states
REGISTRATION OF UNION; JURISDICTION AND PROCEDURE, JURIDICAL PERSONALITY Terminologies: 1.
Labor Organization –refers to any labor organization in the private sector whether registered or not.
A Labor organization is any union or association of employees which exists in whole or in part for the purpose of collective bargaining, mutual aid, interest, cooperation, or other lawful purposes (IRR)
Union and labor organization can be used interchangeably
It is considered "legitimate" if duly registered with DOLE.
A labor organization is NOT always a union, it may be an association of employees
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Legitimate Labor Organization – refers to any labor organization in the private sector registered or reported with the department of Labor and Employment and includes any branch or local thereof (Art. 212)
3.
Workers' association- refers to an association of workers organized for the mutual aid and protection of its members or for any legitimate purpose other than collective bargaining. (IRR)
Registration with DOLE makes it legitimate. 4.
Legitimate workers’ association- refers to an association of workers organized for mutual aid and protection of its members or of any legitimate purpose other than collective bargaining registered with the Department in accordance with Rule III, Section 2-C and 2-D of these rules (IRR)
Distinction between a labor organization and a workers’ association A labor organization is established principally for collective bargaining purposes; while a workers' association is organized for the mutual aid and protection of its members but not for collective bargaining purposes. However, as regards to the composition, they are the same. They only differ on the purpose and power. The establishment of workers’ association is NOT found under the LC but it is found in DO 40-03. The rules contain registration of worker’s association
5.
The purposes of a labor organization a. Collective bargaining; and b. Dealing with employers regarding the terms and conditions of the employment relationship. To bargain collectively is a right that may be acquired by a labor organization after registering itself with the DOLE and being recognized by DOLE as the exclusive bargaining representative of the employees Dealing with the employer is a generic description of interaction between employer and employees concerning grievances, wages, work hours even if NOT registered with the DOLE Bargaining unit - is the group or cluster of jobs or positions that supports the labor organization which is applying for registration, within the employer’s establishment. Refers to a group of employees sharing mutual interest within a given employer unit, comprises of all or less than all of the entire body of employees in the employer unit or any specific occupational or geographical grouping within such employer unit. (IRR) Determination of bargaining unit: a. b. c.
Communality / Mutuality of interest (e.g. teachers share same interest with fellow teachers, but you cannot mix up with the non academic personnel) will of the employees- Globe doctrine prior/ previous history
6.
Union – refers to any labor organization in the private sector for collective bargaining and for other legitimate purpose. (IRR)
7.
National Union or Federation – refers to a group of legitimate labor unions in private establishment organized for collective bargaining or for dealing with employers concerning terms and conditions of employment for their member unions or for participating in the formulation of social and employment policies, standards and programs, registered with the Bureau in accordance with Rule Section 2-B of these Rules (IRR) It is composed of at least 10 legitimate labor organizations whether independent labor unions or chartered locals each of which must be duly certified or recognized bargaining agent in the establishment where it seeks to operate. Note:Before RA 6715, there was this one company-one union policy. After the effectivity of the Herrera Veloso Doctrine on March 21 1989, it was abandoned with the 3-tiered classification of employees. There may be two or more certified bargaining agents serving different interests.
8.
9.
Affiliate- refers to: an independent union affiliated with a federation, national union; or a chartered local which was subsequently granted independent registration but did not disaffiliate from its federation. It is important to gain or increase the bargaining power vis-à-vis the employer. Chartered Local – refers to a labor organization in the private sector operating at the enterprise level that acquired legal personality through the issuance of a charter certificate by a duly registered federation or national union. (IRR)
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Societas Spectra Legis Labor Relations Compilation 10. Independent Union- refers to a labor organization operating at the enterprise level that acquired legal personality through independent registration under Art. 234 of the Labor Code and Rule III, Section 2-A of these Rules (IRR) 11. Registration -refers to the process of determining whether the application for registration of a union or worker’s association and collective bargaining agreement complies with the documentary requirements for registration prescribed in rules III,IV and XVII of these rules. (IRR) It is necessary to qualify as legitimate labor organization that can avail of the benefits provided by law.
HOW TO FORM A LABOR UNION: 1.
Form or organize an Independent Union.
2.
Local Chapter thru the process of chartering (directly created thru the process of chartering)
The proof of affiliation depends on the nature of the affiliation. Thus, if: 1. Chartered local. - Charter certificate issued by the federation or national union. 2. Independently-registered union. - contract of affiliation between federation and the union.
A labor union which affiliates with a federation or national union becomes subject to the rules and regulations of the latter. The federation is the principal and the local union, the agent.
An independently-registered union does not lose its independent legal personality when it affiliates with a federation or national union. Appending the name of the federation to the local union's name does not mean that the federation absorbed the latter.
In Filipino Pipe and Foundry Corporation vs. NLRC, (G. R. No. 115180, November 16, 1999), it was held that it is the local union and not the federation which is liable to pay damages in case of illegal strike.
Formation of Union and Registration 1.) Recruitment For purposes of registration, at least 20% of the employees in the bargaining unit Qualification of a member- he must be an employee of the same bargaining unit. Article 277 (c) Any employee, whether employed for a definite period or not, shall, beginning on his first day of service, be considered as an employee for purposes of membership in any labor union. 2.) Drafting of the Constitution and by-laws. The former refers to the general principles and the latter to the detailed matters as duties and responsibilities. 3.) Ratification – majority vote is required. 4.) Registration ART. 234. Requirements of Registration. - A federation, national union or industry or trade union center or an independent union shall acquire legal personality and shall be entitled to the rights and privileges granted by law to legitimate labor organizations upon issuance of the certificate of registration based on the following requirements: (a) Fifty pesos (P50.00) registration fee;- fee is minimal to encourage employees to form and organize a labor union (promote unionism) (b) The names of its officers, their addresses, the principal address of the labor organization, the minutes of the organizational meetings and the list of the workers who participated in such meetings; (c) In case the applicant is an independent union, the names of all its members comprising at least twenty percent (20%) of all the employees in the bargaining unit where it seeks to operate;(unique to independent union only) (d) If the applicant union has been in existence for one or more years, copies of its annual financial reports; andbecause money has not yet been received yet or nothing may have been spent (e) Four copies of the constitution and by-laws of the applicant union, minutes of its adoption or ratification, and the list of the members who participated in it."
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Societas Spectra Legis Labor Relations Compilation Constitution- general principles By laws- duties and responsibilities of the officers, members Majority of the members of the union required to adopt or ratify the constitution or by laws Purpose of registration: to acquire legal personality and shall be entitled to the rights and privileges granted by law to legitimate labor organizations (representational and bargaining rights) upon issuance of the certificate of registration
The BLR issues the certificate of registration.
Upon issuance of certificate of registration the union acquires legal personality
In Tagaytay Highlands International Golf Club, Inc. vs. Tagaytay Highlands Employees Union-PGTWO (G. R. No. 142000, January 22, 2003), the Supreme Court ruled that the effect of issuance of certificate of registration to a union is that it becomes legitimate and its legal personality can only be attacked through a petition for cancellation of registration and not thru intervention in a certification election petition.
Constitutional rights or provisions are not sources of positive enforceable rights. They are only bases for legislation.
A labor organization exists out of necessity. There won’t be a labor union if the workers do not feel the necessity to organize themselves.
Two-Fold Procedure in Creating a Chapter or Local 1.
affiliation of independent union(which has a legal personality separate and distinct from the national federation) with national union or federation
2.
direct creation of local or chapter through process of chartering - local or chapter will NOT exist without the issuance of charter certificate by the national union or federation - it contemplates of an unregistered labor organization “ART. 234-A. Chartering and Creation of a Local Chapter. – A duly registered federation or national union may directly create a local chapter by issuing a charter certificate indicating the establishment of the local chapter. The chapter shall acquire legal personality only for purposes of filing a petition for certification election from the date it was issued a charter certificate. The chapter shall be entitled to all other rights and privileges of a legitimate labor organization only upon the submission of the following documents in addition to its charter certificate: (a) The names of the chapter’s officers, their addresses, and the principal office of the chapter; and (b) The chapter’s constitution and by-laws: Provided, That where the chapter’s constitution and by-laws are the same as that of the federation or the national union, this fact shall be indicated accordingly. The additional supporting requirements shall be certified under oath by the secretary or treasurer of the chapter and attested by its president.”
Once it has been issued a charter certificate, it has a legal personality for purposes of petition of certification election but you cannot exercise all the rights in full of a LLO
One must be certified as exclusive bargaining agent to exercise collective bargaining
The primary document is the charter certificate issued by the federation or the national union
The federation or national union (refer to definition of NU) issues the charter certificate
It is the federation of NU which creates a local chapter
The charter certificate is issued to the Local Chapter
Once issued, it acquires legal personality but limited to filing for certification election.
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In order for a local chapter to fully acquire the rights of a Legitimate Labor Organization the chartered local must submit additional requirements certified under oath by the secretary or treasurer of the chapter and attested by its president The additional documents are: (Article 234-A) a. b.
The names of the chapter’s officers, their addresses, and the principal office of the chapter, and The chapter’s constitution and by-laws: Provided, that where the chapter’s constitution and by-laws are the same as that of the federation or the NU, this fact shall be indicated accordingly.
Registration does not curtail the right of the workers to self-organization because registration is not required by the constitution. The failure to register does not make the labor organization illegal. They are still free to associate between and among themselves but they are not given the rights and privileges of a LLO. (page 186)
Registration is required to afford protection to unsuspecting workers who may be lured by unscrupulous or flyby-night unions whose only interest is to control the funds or to use the organization for an illegitimate purpose. Such requirement is a valid exercise of the police power because the activities in which labor organizations, associations and unions affect public interest which should be protected
The requirements for the creation of a local or chapter less onerous or less stringent in order to encourage organizations to affiliate themselves with national federations in order for them to increase their bargaining power.
The creation of a local does not need subscription by a minimum number of members. The 20% initial membership is required to register an independent union but NOT a local
The federation to which you are affiliating must be duly registered. If you are created as a local or chapter you acquire your legal personality by being created as one. It is the federation that gives you legal personality. There is no more need for the local to submit the documents in Article 234 because such documents have already been submitted by the national union or federation.
In both cases, if you comply with the requirements as an independent union and if you are given a charter certificate as a local or chapter then you acquire legal personality. You cannot exercise collective bargaining if you have not been recognized as the exclusive bargaining agent.
Art. 237. Additional requirements for federations or national unions. Subject to Article 238, if the applicant for registration is a federation or a national union, it shall, in addition to the requirements of the preceding Articles, submit the following: Proof of the affiliation of at least ten (10) locals or chapters, each of which must be a duly recognized collective bargaining agent in the establishment or industry in which it operates, supporting the registration of such applicant federation or national union; and The names and addresses of the companies where the locals or chapters operate and the list of all the members in each company involved. A.)Accompanying Documents Independent Labor Union
Affiliation
Chartering
1.) The name of the applicant labor union, its principal address, the name of its officers and their respective addresses, approximate number of employees in the bargaining unit where it seeks to operate, with a statement that it is not reported as charted local of any federation or national union.
The report of affiliation of independently registered labor unions with a federation or national union shall be accompanied by:
A duly registered federation or national union may directly create a local chapter by issuing a charter certificate indicating the establishment of the local chapter.
1.) Resolution of the labor union’s board of directors approving the affiliation.
( therefore no need to submit accompanying documents however the chapter’s rights is only limited to certification election )
2.) The minutes of the organizational meetings and the list of employees who participated in said meetings.
2.) Minutes of the general membership meeting approving the affiliation. 3.) The total number of members comprising the labor union and the names of the members who approved
To be entitled to all other rights of a legitimate labor organization,
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Societas Spectra Legis Labor Relations Compilation 3.) The name of all its members comprising at least 20% of the employees in the bargaining unit. 4.) The annual financial reports if the applicant has been in existence for one or more years, unless it has not collected any amount from its members, in which case a statement to this effect shall be included in the application. 5.) The applicant’s constitution and by laws, minutes of its adoption or ratification, and the list of the members who participated in it. The list of the ratifying members shall be dispensed with where the constitution and by laws was ratified or adopted during the organizational meeting. In such case the factual circumstances of the ratification shall be recorded in the minutes of the organizational meeting.
the affiliation. 4.) The certificate of affiliation issued by the federation in favor of the independently registered labor union. 5.) Written notice to the employer concerned if the affiliating union is the incumbent bargaining agent.
the chapter shall submit the following documents in addition to its charter certificate:
(a) The names of the chapter’s officers, their addresses, and the principal office of the chapter; and
(b) The chapter’s constitution and bylaws: Provided, That where the chapter’s constitution and by-laws are the same as that of the federation or the national union, this fact shall be indicated accordingly.
The additional supporting requirements shall be certified under oath by the secretary or treasurer of the chapter and attested by its president.”
-
Less stringent bec. You derive your legal personality from the national union or federation who already submitted those requirements
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Also there are attestation requirements needed (Certification under oath by the Secretary or Treasurer as the case may be and attested by the President) – it is also needed in case of change of name, merger, consolidation and affiliation. Payment of registration fees.
JURISDICTION AND PROCEDURE B. Jurisdiction for application of registration of an independent union:
BLR (Bureau of Labor Relations) has jurisdiction
Applications for registration of independent labor unions, chartered locals and workers’ associations shall be filed with and acted upon by the Regional Office where the applicant principally operates
Applications for registration of federations, national unions or workers’ association operating in more than one region shall be filed with the Bureau of Labor Relations or the Regional Offices but shall be processed and acted upon by the Bureau which has national jurisdiction
BLR has jurisdiction. But the venue for the filing of the application is different. It depends on who is filing: -
If independent union or local chapter/chartered local and workers association, you file at the Regional Office (labor relations division)
-
If national union or federation – BLR
1.) Regional Office- For the registration of:
*independent labor unions *Chartered locals (as amended by RA 9481) the law says that A duly registered federation or national union may directly create a local chapter by issuing a charter certificate indicating the establishment of the local chapter. *Worker’s association 2.) Bureau of Labor Relations (Manila) –for the registration of:
Federations *National Unions
Art. 235. Action on application. The Bureau shall act on all applications for registration within thirty (30) days from filing. All requisite documents and papers shall be certified under oath by the secretary or the treasurer of the organization, as the case may be, and attested to by its president. “Section 4. Action on the application/notice. – The Regional Office of the Bureau, as the case may be, shall act on all applications for registration or notice of change of name, affiliation, merger and consolidation within one (1) day from receipt hereof, either by: (a) approving the application and issuing the certificate of registration/acknowledging the notice/report; or (b) denying the application/notice for failure of the applicant to comply with the requirements for registration/notice (As amended by Department Order No. 40-D-05, Series of 2005) C. When Registered The labor union or worker’s association shall be deemed registered and vested with legal personality on the date of issuance of its certificate of registration or certificate of creation of chartered local. (Sec 8 DO 40-33) See RA 9481 because chapter acquires personality upon issuance by federation of charter certificate to the chapter. - Recognition by BLR not a ministerial duty. The BLR will determine the veracity of the documents submitted. Determine if there is falsification or serious irregularities on the face of the application or the supporting documents. D. Assailment of Registration Such legal personality may be questioned only through an independent petition for cancellation of union registration (no collateral attack) E. Denial of Application It shall be in writing stating in clear terms the reasons thereof.
Societas Spectra Legis Labor Relations Compilation “Section 5. Denial of Application/Return of Notice. – Where the documents supporting the application for registration/notice of change of name, affiliation, merger and consolidation are incomplete or do not contain the required certification and attestation, the Regional Office or the Bureau shall, within one (1) day from receipt of the application/notice, notify the applicant/labor organization concerned in writing of the necessary requirements and to complete the same within thirty (30) days from receipt of notice. Where the applicant/labor organization concerned fails to complete the requirements within the time prescribed, the application for registration shall be denied, or the notice of change of name, affiliation, merger and consolidation returned, without prejudice to filing a new application or notice. F. Appeal From The Denial Art. 236. Denial of registration; appeal. The decision of the Labor Relations Division in the regional office denying registration may be appealed by the applicant union to the Bureau within ten (10) days from receipt of notice thereof. Section 6. form of denial of application/return of notice; appeal- The notice of the Regional Office of the Bureau denying the application for registration/ returning the notice of change of name, affiliation, merger or consolidation shall be in writing stating in clear terms the reasons for the denial or return. The denial may be appealed to the Bureau if denial is made by the Regional Office or to the Secretary if denial is made by the Bureau, within 10 days from receipt of such notice, on the ground of grave abuse of discretion or violation of these Rules Section 7. Procedure on Appeal- The memorandum of appeal shall be filed with the Regional Office or the Bureau that issued the denial/ return of notice. The memorandum of appeal together with the complete records of the application for registration/ notice of change of name, affiliation, merger or consolidation, shall be transmitted by the Regional Office to the Bureau or by the Bureau to the Office of the Secretary, within 24 hours from receipt of the memorandum of appeal. The Bureau or the Office of the Secretary shall decide the appeal within 20 days from receipt of the records of the case. Form of denial:
In writing stating in clear terms the reasons for the denial
Appeal To whom:
If denial is made by the regional office – appeal to the Bureau
If denial is made by the Bureau – appeal to the Secretary of Labor
Mode of appeal:
Memorandum of appeal filed with the Bureau or Regional office that issued the denial
Prescriptive Period
within 10 days from receipt of such notice of denial
Grounds to appeal:
grave abuse of discretion
violation of the rules
Period to decide
-within 20 days from receipt of the records of the case.
G. Court of Appeal Thru Rule 65; Then SC Rule 45 From the SOLE it becomes final and executory. There is no appeal to the CA. Rather, you file a special civil action (Rule 65) to CA for grave abuse of discretion, violation of rules or irregularity, and then from CA to SC under Rule 45
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Societas Spectra Legis Labor Relations Compilation RIGHTS OF LEGITIMATE LABOR ORGANIZATION Article 242. Rights of legitimate labor organizations. A legitimate labor organization shall have the right: To act as the representative of its members for the purpose of collective bargaining; To be certified as the exclusive representative of all the employees in an appropriate bargaining unit for purposes of collective bargaining; 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; To own property, real or personal, for the use and benefit of the labor organization and its members; To sue and be sued in its registered name; and 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) Article 277. Miscellaneous provisions. All unions are authorized to collect reasonable membership fees, union dues, assessments and fines and other contributions for labor education and research, mutual death and hospitalization benefits, welfare fund, strike fund and credit and cooperative undertakings. (As amended by Section 33, Republic Act No. 6715, March 21, 1989) xxx SUMMARY OF THE RIGHTS OF LEGITIMATE LABOR ORGANIZATION: (P-R-I-C-E) 1.
RIGHT OF REPRESENTATION (a) To act as the representative of its members for the purpose of collective bargaining- acts as representative of union and non union members
Who is the representative? The Legitimate Labor Organization
(b) To be certified as the exclusive representative of all the employees in an appropriate bargaining unit for purposes of collective bargaining Methods: 1.
certification election
2.
voluntary recognition – employer voluntarily recognize the LLO; requires majority of employees in the bargaining unit; there must be a joint agreement of union and employer
Note: Direct Certification is no longer allowed as the will of the majority is frustrated. Not anymore recognized 2.
RIGHT TO INFORMATION (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;
3.
RIGHT PERTAINING TO A JURIDICAL PERSON/PROPERTY RIGHTS (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
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Societas Spectra Legis Labor Relations Compilation (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. 4.
EXEMPTION FROM TAXES
Income and properties received including donations that are actually, directly and exclusively used for their lawful purposes shall be free from taxes, duties and other assessments. (May be withdrawn by state) 5.
RIGHT TO COLLECT UNION DUES, ETC.
ART. 277. Miscellaneous provisions. - (a) All unions are authorized to collect reasonable membership fees, union dues, assessments and fines and other contributions for labor education and research, mutual death and hospitalization benefits, welfare fund, strike fund and credit and cooperative undertakings.
RIGHTS AND DUTIES OF UNION MEMBERS & NON-UNION MEMBERS (ART. 241) AND QUALIFICATIONS TAKE NOTE: Minimum qualification of a member: one must be an employee Security guard who is an employee of an agency CANNOT be a member of the union of rank and file employees Employees of another company CANNOT be a member of the union of rank and file employees of one company Article 241. Rights and conditions of membership in a labor organization. The following are the rights and conditions of membership in a labor organization: No arbitrary or excessive initiation fees shall be required of the members of a legitimate labor organization nor shall arbitrary, excessive or oppressive fine and forfeiture be imposed; The members shall be entitled to full and detailed reports from their officers and representatives of all financial transactions as provided for in the constitution and by-laws of the organization; The members shall directly elect their officers, including those of the national union or federation, to which they or their union is affiliated, by secret ballot at intervals of five (5) years. No qualification requirements for candidacy to any position shall be imposed other than membership in good standing in subject labor organization. The secretary or any other responsible union officer shall furnish the Secretary of Labor and Employment with a list of the newly-elected officers, together with the appointive officers or agents who are entrusted with the handling of funds, within thirty (30) calendar days after the election of officers or from the occurrence of any change in the list of officers of the labor organization; (As amended by Section 16, Republic Act No. 6715, March 21, 1989) The members shall determine by secret ballot, after due deliberation, any question of major policy affecting the entire membership of the organization, unless the nature of the organization or force majeure renders such secret ballot impractical, in which case, the board of directors of the organization may make the decision in behalf of the general membership; No labor organization shall knowingly admit as members or continue in membership any individual who belongs to a subversive organization or who is engaged directly or indirectly in any subversive activity; No person who has been convicted of a crime involving moral turpitude shall be eligible for election as a union officer or for appointment to any position in the union; No officer, agent or member of a labor organization shall collect any fees, dues, or other contributions in its behalf or make any disbursement of its money or funds unless he is duly authorized pursuant to its constitution and by-laws; Every payment of fees, dues or other contributions by a member shall be evidenced by a receipt signed by the officer or agent making the collection and entered into the record of the organization to be kept and maintained for the purpose; The funds of the organization shall not be applied for any purpose or object other than those expressly provided by its constitution and bylaws or those expressly authorized by written resolution adopted by the majority of the members at a general meeting duly called for the purpose; Every income or revenue of the organization shall be evidenced by a record showing its source, and every expenditure of its funds shall be evidenced by a receipt from the person to whom the payment is made, which shall state the date, place and purpose of such payment. Such record or receipt shall form part of the financial records of the organization. Any action involving the funds of the organization shall prescribe after three (3) years from the date of submission of the annual financial report to the Department of Labor and Employment or from the date the same should have been submitted as required by law, whichever University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Relations Compilation comes earlier: Provided, That this provision shall apply only to a legitimate labor organization which has submitted the financial report requirements under this Code: Provided, further, that failure of any labor organization to comply with the periodic financial reports required by law and such rules and regulations promulgated thereunder six (6) months after the effectivity of this Act shall automatically result in the cancellation of union registration of such labor organization; (???)As amended by Section 16, Republic Act No. 6715, March 21, 1989) The officers of any labor organization shall not be paid any compensation other than the salaries and expenses due to their positions as specifically provided for in its constitution and by-laws, or in a written resolution duly authorized by a majority of all the members at a general membership meeting duly called for the purpose. The minutes of the meeting and the list of participants and ballots cast shall be subject to inspection by the Secretary of Labor or his duly authorized representatives. Any irregularities in the approval of the resolutions shall be a ground for impeachment or expulsion from the organization; The treasurer of any labor organization and every officer thereof who is responsible for the account of such organization or for the collection, management, disbursement, custody or control of the funds, moneys and other properties of the organization, shall render to the organization and to its members a true and correct account of all moneys received and paid by him since he assumed office or since the last day on which he rendered such account, and of all bonds, securities and other properties of the organization entrusted to his custody or under his control. The rendering of such account shall be made: At least once a year within thirty (30) days after the close of its fiscal year; At such other times as may be required by a resolution of the majority of the members of the organization; and Upon vacating his office. The account shall be duly audited and verified by affidavit and a copy thereof shall be furnished the Secretary of Labor. The books of accounts and other records of the financial activities of any labor organization shall be open to inspection by any officer or member thereof during office hours; No special assessment or other extraordinary fees may be levied upon the members of a labor organization unless authorized by a written resolution of a majority of all the members in a general membership meeting duly called for the purpose. The secretary of the organization shall record the minutes of the meeting including the list of all members present, the votes cast, the purpose of the special assessment or fees and the recipient of such assessment or fees. The record shall be attested to by the president. Other than for mandatory activities under the Code, no special assessments, attorney’s fees, negotiation fees or any other extraordinary fees may be checked off from any amount due to an employee without an individual written authorization duly signed by the employee. The authorization should specifically state the amount, purpose and beneficiary of the deduction; and It shall be the duty of any labor organization and its officers to inform its members on the provisions of its constitution and by-laws, collective bargaining agreement, the prevailing labor relations system and all their rights and obligations under existing labor laws. For this purpose, registered labor organizations may assess reasonable dues to finance labor relations seminars and other labor education activities. Any violation of the above rights and conditions of membership shall be a ground for cancellation of union registration or expulsion of officers from office, whichever is appropriate. At least thirty percent (30%) of the members of a union or any member or members specially concerned may report such violation to the Bureau. The Bureau shall have the power to hear and decide any reported violation to mete the appropriate penalty. Criminal and civil liabilities arising from violations of above rights and conditions of membership shall continue to be under the jurisdiction of ordinary courts.
RIGHTS: DIP MONEY- CURSE 1.) Political rights- right to vote and be voted for, subject to lawful provisions on qualification and disqualification The members shall directly elect their officers, including those of the national union or federation, to which they or their union is affiliated, by secret ballot at intervals of five (5) years. Qualification of candidates: 1. membership in good standing in the union 2. qualifications may be added as long as NOT arbitrary and unreasonable
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Societas Spectra Legis Labor Relations Compilation Disqualification: 1.) No person who has been convicted of a crime involving moral turpitude shall be eligible for election as a union officer or for appointment to any position in the union. 2.) Must be an employee. No labor organization shall knowingly admit as members or continue in membership any individual who belongs to a subversive organization or who is engaged directly or indirectly in any subversive activity (not only for candidacy but also membership) 3.) Note: Additional requirements may be made as long as it is reasonable and does not undermine the right to self organization
Term of office is 5 years.
Inclusion or membership in a union depends on the union’s constitution and by laws without prejudice to Art. 277(c)
Eligibility of voters
Only members of the union can take part in the election of union officers A member in good standing is any person who has fulfilled the requirements for membership in the union and who has neither voluntarily withdrawn from membership nor been expelled or suspended from membership after appropriate proceedings consistent with the lawful provisions of the union’s constitution and bylaws; must not be a delinquent member (non payment of union dues or violation of constitution and bylaws) It may defer eligibility to vote by requiring a reasonable period of prior membership A union may NOT create special classes of nonvoting members Labor organization may condition the exercise of the right to vote on the payment of dues; this rule is subject to two qualifications: a. any rule denying dues-delinquent members the right to vote must be applied uniformly b. members must be afforded a reasonable opportunity to pay dues 2.) Right to information It shall be the duty of any labor organization and its officers to inform its members on the provisions of its constitution and bylaws, collective bargaining agreement, the prevailing labor relations system and all their rights and obligations under existing labor laws. 3.) Deliberative and decision-making right The members shall determine by secret ballot, after due deliberation, any question of major policy affecting the entire membership of the organization, unless the nature of the organization or force majeure renders such secret ballot impractical, in which case, the board of directors of the organization may make the decision in behalf of the general membership; 4.) Rights over money matters A.) Right against excessive fees No arbitrary or excessive initiation fees shall be required of the members of a legitimate labor organization nor shall arbitrary, excessive or oppressive fine and forfeiture be imposed; B.) Right against unauthorized collection or disbursements No officer, agent or member of a labor organization shall collect any fees, dues, or other contributions in its behalf or make any disbursement of its money or funds unless he is duly authorized pursuant to its constitution and by-laws The funds of the organization shall not be applied for any purpose or object other than those expressly provided by its constitution and by-laws or those expressly authorized by written resolution adopted by the majority of the members at a general meeting duly called for the purpose C.) Right to require adequate records of income and expenses and right to access financial records The members shall be entitled to full and detailed reports from their officers and representatives of all financial transactions as provided for in the constitution and by-laws of the organization.
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Societas Spectra Legis Labor Relations Compilation Every payment of fees, dues or other contributions by a member shall be evidenced by a receipt signed by the officer or agent making the collection and entered into the record of the organization to be kept and maintained for the purpose. Every income or revenue of the organization shall be evidenced by a record showing its source, and every expenditure of its funds shall be evidenced by a receipt from the person to whom the payment is made, which shall state the date, place and purpose of such payment. Such record or receipt shall form part of the financial records of the organization. The books of accounts and other records of the financial activities of any labor organization shall be open to inspection by any officer or member thereof during office hours; D.) Right to vote on officer’s compensation The officers of any labor organization shall not be paid any compensation other than the salaries and expenses due to their positions as specifically provided for in its constitution and by-laws, or in a written resolution duly authorized by a majority of all the members at a general membership meeting duly called for the purpose. E.) Right to vote on proposed special assessments or the member’s written authorization No special assessment or other extraordinary fees may be levied upon the members of a labor organization unless authorized by a written resolution of a majority of all the members in a general membership meeting duly called for the purpose. Other than for mandatory activities under the Code, no special assessments, attorney’s fees, negotiation fees or any other extraordinary fees may be checked off from any amount due to an employee without an individual written authorization duly signed by the employee. The authorization should specifically state the amount, purpose and beneficiary of the deduction
DUTIES 1.Payment of union dues (applies both to union and non union members) Art 248(e) Employees of an appropriate bargaining unit who are not members of the recognized collective bargaining agent may be assessed a reasonable fee equivalent to the dues and other fees paid by members of the recognized collective bargaining agent, if such non-union members accept the benefits under the collective bargaining agreement. Union dues – reasonable amount collected by the union among its members ; regular mandatory contribution to union funds Rule of thumb: must NOT be arbitrary, excessive, and unreasonable Special assessment- not the same as union dues; Requirement for special assessment: 1.
must be authorized by a written resolution of majority of all members
2.
state the purpose for the special assessment
Fines and Forfeitures – disciplinary measures imposed by the union to erring members (delinquent members) Members of a legitimate labor organization has the duty to contribute funds but subject to the caveat of excessive fees, fines or forfeitures. Manner of Collection 1.) Personal 2.) Check-off
ELECTION OF UNION OFFICERS AND QUALIFICATIONS ART. 241 (c) The members shall directly elect their officers, including those of the national union or federation, to which they or th eir union is affiliated, by secret ballot at intervals of five (5) years. No qualification requirements for candidacy to any position shall be imposed other than membership in good standing in subject labor organization. The secretary or any other responsible union officer shall furnish the Secretary of Labor and Employment with a list of the newly-elected officers, together with the appointive officers or agents who are entrusted with the handling of funds, within thirty (30) calendar days after the election of officers or from the occurrence of any change in the list of officers of the labor organization; University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Relations Compilation (See rule XII DO 40-33) A.) If there is an agreement among the members or any provision in the Constitution and by-laws providing for the procedures in the election of union officers – the agreement or the constitution or the by-laws shall be followed. B.) If there is none- The following guidelines shall be followed: I.) WHERE THERE IS NO DISPUTE OVER CONDUCT OF ELECTION OF OFFICERS
II.)WHERE THERE IS DISPUTE OVER CONDUCT OF ELECTION OF OFFICERS
1.) Constitution of a Committee on Election
1.) Filing of Petition
Who shall constitute? President of the Labor organization.
A.) Where to file:
When shall the constitution be made? Within 60 days before the expiration of the terms of the incumbent officers.
Regional Office: independent labor union or chartered local
Composition: at least 3 members who are not running for any position. If there are identifiable parties within the organization, each shall have equal representation.
Bureau or Regional Office - federations, national or industry unions and trade union centers
2.) Election or designation of chairman of the Committee The members shall elect their chairman among themselves and in case of disagreement; the president shall designate the chairman. Powers and duties of the committee - set the date, time and venue of the election - prescribe the rules on the qualification and eligibility of candidates and voters - prepare and post the voter’s list and the list of qualified candidates - accredit the authorized representatives of the contending parties
-But shall be heard and resolved by the Bureau. B.) Grounds: a.) Expiration of officer’s term and their neglect or failure to call an election of new officers. b.) The labor organization’s constitution and by laws do not provide for the manner by which said election be conducted and the intervention of the Department is necessary. C.) Manner - Filing of petition for the conduct of election by at least 30% of the members of the labor organization NB!! Same rule applies where there is nullification of election of officers, impeachment, expulsion, etc... D.) Formal requirements of the complaint or petition.
-supervise the actual conduct of election and canvass the votes to ensure the sanctity of the ballot.
In writing, verified under oath containing the following:
-keep minutes of the proceedings
a.) name, address and other personal circumstances of the complainants or petitioner
- be the final arbiter of all election protests -proclaim winners -prescribe such other rules as may facilitate the orderly conduct of election. 3.) Raffle of an election officer (Committee on elections) 4.) Pre-election Conference - Issuance by the election officer of notice of pre election conference upon the contending candidates which shall be scheduled within 10 days from receipt of assignment. -the pre-election conference shall set the mechanics for the election and shall determine: a.) date, time and place of the election, which shall not be later than 45 days from the date of the first pre-election conference and shall be on a regular working day and within
b.) name, address and other personal circumstances of the respondents or the persons charged. c.) nature of the complaint or petition. d.) facts and circumstances surrounding the complaint or petition. e.) causes of action or specific violations committed f.) a statement that the administrative remedies provided for in the constitution and by laws have been exhausted or such remedies are not readily available to the complainants or petitioners through no fault of his own or compliance with such administrative remedies does not apply to complainants or petitioners. g.)Reliefs prayed for h.) certificate of non-forum shopping and
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Societas Spectra Legis Labor Relations Compilation the employer’s premises unless circumstances otherwise require. b.) list of eligible and challenged voters c.) number and location of the 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 Failure of the party to appear in the pre-election conference despite notice shall be considered as waiver of the right to be heard. However not to subsequent notices. There shall be minutes of pre election conference acknowledged by the parties by their signatures. (NB!! Since the Committee on Elections is vested with the powers, the election officer is under their supervision and control.) 5.) Qualifications of voters All employees who are members of the said legitimate labor organization shall be eligible to vote. An employee dismissed from work but has contested the legality of the dismissal in appropriate forum at the time of the issuance of the order for the conduct of election of officers shall be a qualified voter unless there is a dismissal by final judgment at the time of the conduct of the election. All contested voters are allowed to vote in case of disagreement over the voter’s list but their votes shall be segregated. (NB!! The committee on election may provide for additional qualifications)
i) Other relevant matters 2.) Raffle of case – for determining the Med-Arbiter or Hearing Officer who shall be assigned to the case in case it is filed with the regional office. 3.)Notice of Preliminary Conference The Med-Arbiter or Hearing officer shall prepare notice of preliminary conference. It shall be scheduled within 10 days from receipt of the complaint or petition. The Med Arbiter or Hearing Officer shall cause the service of summons to the respondents named directing him to answer before the preliminary conference and to appear on the preliminary conference. 4.)Conduct of Preliminary Conference Exertion of effort by the Med- arbiter or Hearing officer for amicable settlement. If there is amicable settlement- decision based on compromise shall be issued by the MA or HO. If none- The MA or HO shall proceed with stipulation of facts, limitation of issues, clarificatory questioning and submission of laws and jurisprudence to support each claim. 5.) Hearing 6.)Affirmation of testimonial Evidence Any affidavit submitted by a party to prove his claim or defenses shall be affirmed by his presentation before the Med-Arbiter or Hearing officer otherwise such evidence is inadmissible unless the party against whom such affidavit is used admits the allegation. 7.)Filing of Pleadings and Position Papers
6.) Posting of Notices
Within 25 day period prescribed for the hearing. If the case is already submitted for decision, no other pleading is allowed
The election officer shall cause the posting of notice of election at least 10 days before the actual date in 2 conspicuous in the company premises.
8.)Hearing
7.) Secrecy and sanctity of the ballot The Election Officer together with the authorized representatives of the contending candidates and the employers shall before the start of the actual voting, inspect the polling place, the ballot boxes and the polling booths. To ensure secrecy of the ballot. 8.) Preparation of ballot The election officer shall prepare the ballots in English, Filipino or the local dialect corresponding to the number of voters and a reasonable number of extra ballots.
9.) Decision The Bureau, Med-Arbiter or Regional Director as the case shall have 20 days to decide complaint or petition. The decision shall state facts, findings conclusion and relief granted. 10.)Appeal appeal to the Bureau- decision of Med-Arbiter and Regional Director within 10 Days from receipt thereof. Appeal to the SOLE– decision of the Bureau director
9.)Voting
-It shall be verified under oath and consists of memorandum on appeal stating grounds relied upon with supporting arguments and evidence.
10.) Challenging of votes
-No appeal- decision becomes final after 10 days from receipt
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Societas Spectra Legis Labor Relations Compilation Any authorized representative of the candidates may challenge a vote before deposited in the ballot box on the following grounds: (a) No employer-employee relationship exists between the voter and the company. (b) That the voter is not a member of the appropriate bargaining unit.
by the parties of the decision. -only 1 Motion for reconsideration is allowed
If the decision calls for election of candidates then follow the Constitution and by-laws if there is a procedure for election of officers stated therein. If there is no such procedure, then follow the omnibus rules. (see other side of the table)
11.) Procedure in the Challenge of Votes If a vote is properly challenged, the election officer shall place the ballot in an envelope sealed in the presence of the voter, contending candidates and employer. The election officer shall note all the challenges in the minutes of the election. If the number of segregated voters will materially affect the results of the election, the envelopes shall be opened and question of eligibility shall be passed upon. 12.) On the spot questions The election officer shall rule on any question relating to and raised during the conduct of election. (Example appreciation of ballots) but not if the ground is absence an employeremployee relationship or if voter is not a member of an appropriate bargaining unit. NB!! The Committee on Election is the final Arbiter 13.) Protest; when perfected Any party in interest may file a protest based on the conduct or mechanics of the election. It shall be recorded in the minutes of the election proceedings otherwise it is waived. It shall be formalized with the Committee on Election within 5 days after the close of the election proceedings. If not recorded or formalized, it shall be deemed dropped. Why with the committee and not the Med Arbiter as provided in the rules? Because The Committee on Election are the ones vested with the power to proclaim the winners (implied powers). The Med-Arbiters power to proclaim pertains to the conduct of certification elections 14.) Canvassing of Votes Votes shall be counted and tabulated by the election officer in the presence of the representatives of the contending unions. The Election officer shall give each representative a copy of the minutes of election proceedings and the results of the election. The ballots and the tally sheet shall be sealed in an envelope signed by the Election officer and the representatives of contending union and transmitted to the Committee on Elections together with the minutes and results of the election within 24 hours from completion of canvass. 15.) Conduct of Election and Canvass of Votes The election precincts shall open and close on the date and time agreed upon during the pre-election conference. The University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Relations Compilation opening and canvass shall proceed after the precincts have closed. 16.) Failure of Election Where the number of votes cast shall be in the election is less than the majority of the number of eligible voters and there are no material challenged votes, the election officer shall declare failure of election. NB!! The Committee on Election is the final Arbiter 17.) Effect of Failure of Election A failure of election shall not bar the filing of a motion for the immediate holding of another election within 6 months from declaration of failure of election. 18.)Action on the Motion Within 24 hrs from receipt of the motion, the Election Officer shall immediately schedule the conduct of another election within 15 days from receipt of the motion and cause the posting of the notice of election at least 10 days prior to the scheduled date in 2 conspicuous places in the establishment. The same guidelines and list of voters shall be used in the election. (NB!! subject to the conformity of the Committee on Election) 19.) Proclamation and Certification of the result of the Election Who shall proclaim? Committee on Elections The Election officer shall transmit the results to them.
CHECK- OFF PROVISION (ART. 113(B)) Art. 113 (b) Wage deduction (b) For union dues, in cases where the right of the worker or his union to check-off has been recognized by the employer or authorized in writing by the individual worker concerned; and
A method agreed between the management and the representative union of deducting from an employee’s pay at prescribed period, the amounts due the union for fees, fines or assessment.
The amount and collection of union dues are questions that affect the entire membership, hence they have to be approved by the members themselves
Dues- payments to meet the union’s general and current obligations; payment must be regular, periodic, and uniform
Assessment- payments used for a special purpose, especially if required for a limited time
Special assessment, attorney’s fees, negotiation fees may be checked off form any amount due an employee with an individual written authorization duly signed by the employee
Rule XXV Section 4. Check off from non members – Pursuant to Article 248 (e) of the Code, the employer shall check off from non-union members within a collective bargaining unit the same reasonable fee equivalent to the dues and other fees normally paid by un ion members without the need for individual check off authorizations
Agency fee- union dues which a non union member pays to the union because he benefits from the CBA negotiated by the union; the union served as the employee’s agent
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Jurisdiction over check off disputes: Regional director of DOLE
DISAFFILIATION: MEMBERS & UNION AFFILIATION
An affiliate is: a. an independently registered union that enters into an agreement of affiliation with a federation or a national union b. a chartered local which applies for and is granted an independent registration but does NOT disaffiliate from its mother federation or national union
Reasons to affiliate- to increase bargaining power like more resources (financial, bargaining skill) a. to secure support or assistance during the formative stage of unionization b. to utilize expertise in preparing and pursuing bargaining proposals c. to marshal mind and manpower in the course of group action
An independent union who wants to affiliate with a federation or national union submits the issue to its members. When majority of them vote affirmatively, a resolution or request to affiliate is presented to the chosen federation or national union. If the federation or national union accepts the affiliation it offers a contract of affiliation. The relationship between the “mother” and” daughter” union is therefore contractual, binding both sides. The mother assists in bargaining with the employer or manning the picket line. The daughter in turn remits parts of the union dues usually fifty percent.
Relationship between a local or chapter and the labor federation or national union is generally understood to be that of agency, where the local is the principal and the federation is the agent Affiliation by a duly registered union with a national union or federation does not cause the local union to lose its legal personality. DISAFFILIATION The affiliate may disaffiliate but must observe the terms of the contract. It is not prohibited but can be restricted by the contract of affiliation. (Eg.. The number of votes needed to authorize disaffiliation to the time disaffiliation may be done) In disaffiliating, the local union was merely exercising its primary right to self organization for the effective enhancement and protection of common interest. In the absence of enforceable provisions in the federation’s constitution preventing disaffiliation of a local union, a local may sever its relationship with its parents. The right of the affiliate to disaffiliate may be exercised only when circumstances so warrant. Generally, a labor union may disaffiliate from the mother union to form a local or independent union only during the 60-day freedom period immediately preceding the expiration of the CBA. It must be effected by the majority of the members of the bargaining unit. When a union which is not independently registered disaffiliates from the federation, it is not granted the rights and privileges to a legitimate labor organization. When a local union disaffiliates from a national union or federation, the latter ceases to be entitled to check-off dues.
The right to disaffiliate by the local union from its mother union or federation, is a constitutionally-guaranteed right which may be invoked by the former at any time. It is not an act of disloyalty on the part of the local union nor is it a violation of the “union security clause” in the CBA.
In the absence of specific provisions in the federation’s constitution prohibiting disaffiliation or the declaration of autonomy of a local union, a local may dissociate with its parent union. Thus, in one case, it was held that there can be no disloyalty to speak of since there is no provision in the federation’s constitution which specifically prohibits disaffiliation or declaration of autonomy.
The local union, by disaffiliating from the old federation to join a new federation, is merely exercising its primary right to labor organization for the effective enhancement and protection of common interests. Absent any enforceable provisions in the
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Societas Spectra Legis Labor Relations Compilation federation’s constitution expressly forbidding disaffiliation of a local union, a local union may sever its relationship with its parent union.
Once the fact of disaffiliation has been manifested beyond doubt, a certification election is the most expeditious way of determining which labor organization is to be treated as the exclusive bargaining agent.
Disaffiliation should always carry the will of the majority. It cannot be effected by a mere minority group of union members. (Villar vs. Inciong, 121 SCRA 444).
The obligation to check-off federation dues is terminated with the valid disaffiliation of the local union from the federation with which it was previously affiliated.
To disaffiliate is a right, but to observe the terms of affiliation is an obligation.
It was held in Philippine Skylanders, Inc. vs. NLRC, (G. R. No. 127374, January 31, 2002), that the right of a local union to disaffiliate from its mother federation is not a novel thesis unillumined by case law. In the landmark case of Liberty Cotton Mills Workers Union Vs. Liberty Cotton Mills, Inc. [No. L-33987, September 4, 1975, 66 SCRA 512], the Supreme Court upheld the right of local unions to separate from their mother federation on the ground that as separate and voluntary associations, local unions do not owe their creation and existence to the national federation to which they are affiliated but, instead, to the will of their members. The sole essence of affiliation is to increase, by collective action, the common bargaining power of local unions for the effective enhancement and protection of their interests. Admittedly, there are times when without succour and support local unions may find it hard, unaided by other support groups, to secure justice for themselves.
Yet the local unions remain the basic units of association, free to serve their own interests subject to the restraints imposed by the constitution and by-laws of the national federation, and free also to renounce the affiliation upon the terms laid down in the agreement which brought such affi1iation into existence. Such dictum has been punctiliously followed since then.
Upon an application of the afore-cited principle to the issue at hand, the impropriety of the questioned Decisions becomes clearly apparent. There is nothing shown in the records nor is it claimed by AFLU that the local union was expressly forbidden to disaffiliate from the federation nor were there any conditions imposed for a valid breakaway. As such, the pendency of an election protest involving both the mother federation and the local union did not constitute a bar to a valid disaffiliation. Neither was it disputed by PAFLU that 111 signatories out of the 120 members of the local union, or an equivalent of 92.5% of the total union membership supported the claim of disaffiliation and had in fact disauthorized PAFLU from instituting any complaint in their behalf. Surely, this is not a case where one (1) or two (2) members of the local union decided to disaffiliate from the mother federation, but it is a case where almost all loca1 union members decided to disaffiliate.
It was entirely reasonable then for PSI to enter into a collective bargaining agreement with PSEA-NCW. As PSEA had validly severed itself from PAFLU, there would be no restrictions which could validly hinder it from subsequently affiliating with NCW and entering into a collective bargaining agreement in behalf of its members.
Disaffiliation of independently-registered union and chartered local, distinguished. The disaffiliation of an independently-registered union does not affect its legitimate status as a labor organization. However, the same thing may not be said of a union which is not independently-registered (chartered local). Once a chartered local disaffiliates from the federation, it ceases to be entitled to the rights and privileges granted to a legitimate labor organization. It cannot file a petition for certification election. (Villar vs. Inciong, 121 SCRA 444, April 20, 1983).
The CBA continues to bind the members of the new or disaffiliated and independent union up to the CBA’s expiration date
INTRA- UNION & INTER-UNION DISPUTES: JURISDICTION OF BLR (ART. 226); OTHER MATTERS Article 226. Bureau of Labor Relations. The Bureau of Labor Relations and the Labor Relations Divisions in the regional offices of the Department of Labor, shall have original and exclusive authority to act, at their own initiative or upon request of either or both parties, on all inter-union and intra-union conflicts, and all disputes, grievances or problems arising from or affecting labor-management relations in all workplaces, whether agricultural or non-agricultural, except those arising from the implementation or interpretation of collective bargaining agreements which shall be the subject of grievance procedure and/or voluntary arbitration. The Bureau shall have fifteen (15) working days to act on labor cases before it, subject to extension by agreement of the parties. (As amended by Section 14, Republic Act No. 6715, March 21, 1989 University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Relations Compilation Intra-Union Dispute – refers to any conflict between and among union members, including grievances arising from any violation of the rights and conditions of membership, violation of agreement over any provision of the union’s constitution and by-laws, or disputes arising from chartering or affiliation of union. Inter-Union Dispute – refers to any conflict between and among legitimate labor unions involving representation question for purposes of collective bargaining or to any other conflict or dispute between legitimate labor unions. RULE XI INTER/INTRA-UNION DISPUTES AND OTHER RELATED LABOR RELATIONS DISPUTES Section 1. Coverage. - Inter/intra-union disputes shall include: a. conduct, or nullification of election of union and workers' association; b. audit/accounts examination of union or workers' association funds; c. deregistration of collective bargaining agreements; d. validity/invalidity of union affiliation or disaffiliation; e. validity/invalidity of acceptance/non-acceptance for union membership; f. validity/invalidity of voluntary recognition; g. opposition to application for union and CBA registration; h. violations of or disagreements over any provision constitution by-laws of a union or workers' association ; i. disagreements over chartering or registration of labor organizations or the registration of collective bargaining agreements; j. violations of the rights and conditions of union or workers' association membership; k. violations of the rights of legitimate labor organizations, except interpretation of collective bargaining agreements; l. validity/invalidity of impeachment/expulsion/suspension or any disciplinary action meted against any officer and member including those arising fron non-compliance with the reportorial requirements under Rule V; m. such other disputes or conflicts involving the rights to self-organization, union membership and collective bargaining 1. between and among legitimate labor organizations; and 2. between and among members of a union or workers' association. Section 2. Coverage. - Other related labor relations disputes, not otherwise covered by Article 217 of the Labor Code, shall include: a. any conflict between: 1. a labor union and the employer; or 2. a labor union and a group that is not a labor organization; or 3. a labor union and an individual who is not a member of such union; b. cancellation of registration of unions and workers associations filed by individual/s other than its members or group that is not a labor organization; and c. a petition for interpleader involving labor relations. What are the cases of inter/Intra- union dispute? 1.) Cancellation of registration of labor organization filed by its members or by another labor organization; 2.) Conduct of election of union and worker’s association officers/ nullification of election of union and worker’s association; 3.) Audit/ accounts examination of union or worker’s association funds; 4.) Deregistration of Collective bargaining agreements; 5.) Validity/ invalidity of union affiliation or disaffiliation; 6.) Validity/ invalidity of acceptance/ non-acceptance for union membership; 7.) Validity/ invalidity of impeachment/ expulsion of union and worker’s association officers and members; 8.) Validity/ invalidity of voluntary recognition; 9.) Opposition to application for union and CBA registration; 10.) Violations of or agreements over any provision in a union or worker’s association constitution and by-laws; University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Relations Compilation 11.) Disagreements over chartering or registration of labor organizations and CBA’s 12.) Violations of the rights and conditions of workers’ association membership; 13.) Violations of the rights of legitimate labor organizations except interpretation of CBA; 14.) Such other disputes or conflicts involving the rights to self-organization, union membership and collective bargaining: 1.
between and among legitimate labor organization
2.
between and among members of a union or worker’s association.
Other related labor relations disputes shall include any conflict between labor union and the employer or any individual, entity or group that is not a labor organization or worker’s association. This includes: 1.
cancellation of registration of unions and worker’s association; and
2.
petition for interpleader.
Related labor relations dispute- It shall be filed with the BLR but where there is a grievance procedure in the CBA, involving its implementation or interpretation, the voluntary arbitrator is the one authorized. It includes cancellation of registration of a LLO. The Med-Arbiter refers to the officer of the DOLE Regional office or the Bureau of Labor relations officer authorized to hear and decide representation cases, inter/intra-union disputes and other related labor disputes except cancellation of registration dues. If the issue involves conflict between the labor union and the employer, or any individual, entity or group that is not a labor organization of workers, the BLR is bereft of any authority to hear the same.
PROCEDURE: same as that of cancellation of union registration
Effects of filing/pendency of inter/intra-union and other labor related relations disputes The rights, relationship and obligations of the parties litigants against each other and other parties-in-interest prior to the institution of the petition shall continue to remain during the pendency of the petition and until the date of the finality of the decision rendered therein. Thereafter, the rights, relationships and obligations of the parties litigants against each other and other parties-ininterest shall be governed by the decisions so ordered. The filing or pendency of any inter/intra-union dispute and other related labor relations dispute is not a prejudicial question to any petition for certification election and shall not be a ground for the dismissal of a petition for certification election or suspension of proceedings for certification election.
CANCELLATION OF UNION REGISTRATION; GROUNDS; JURISDICTION & PROCEDURE "ART. 238. Cancellation of Registration. - The certificate of registration of any legitimate labor organization, whether national or local, may be cancelled by the Bureau, after due hearing, only on the grounds specified in Article 239 hereof." RULE XIV CANCELLATION OF REGISTRATION OF LABOR ORGANIZATIONS “Section 1. Cancellation of Registration; Where to file. - Subject to the requirements of notice and due process, the registration of any legitimate independent labor union, chartered local/chapter and workers' association may be cancelled by the Regional Director upon the filing of a petition for cancellation of union registration, or application by the organization itself for voluntary dissolution. The petition for cancellation or application for voluntary dissolution shall be filed in the regional office which issued its certificate of registration or creation.
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Societas Spectra Legis Labor Relations Compilation In the case of federations, national or industry unions and trade union centers, the Bureau Director may cancel the registration upon the filing of petition for cancellation or application for voluntary dissolution in the Bureau of Labor Relations” A.)Where to file? Regional Director- for cancellation of 1.) Independent labor union 2.) Chartered local 3.) Worker’s association Bureau Director- for cancellation of 1.) Federations 2.) National or industry unions 3.) Trade union centers B.) Who can file the petition? 1.) Members of the labor organization concerned –for actions involving violation of article 241 2.) Any party in interest- all other grounds "ART. 239. Grounds for Cancellation of Union Registration. - The following may constitute grounds for cancellation of union registration: (a) Misrepresentation, false statement or fraud in connection with the adoption or ratification of the constitution and by-laws or amendments thereto, the minutes of ratification, and the list of members who took part in the ratification; (b) Misrepresentation, false statements or fraud in connection with the election of officers, minutes of the election of offi cers, and the list of voters; (c) Voluntary dissolution by the members." Discussion: (a) Misrepresentation, false statement or fraud in connection with the adoption or ratification of the constitution and by-laws or amendments thereto, the minutes of ratification, and the list of members who took part in the ratification;
Constitution- general principles and philosophy of the labor organization
By-laws- regulations, ordinances, rules or laws adopted by an association for its internal governance, including rules for routine matters such as calling meetings and the like
The by-laws can put conditions for membership, the name of officers, the powers of the union with regards the members, etc.
What are examples of Union’s powers? Collection of union dues, collection for fines and forfeitures
The LC does not specifically provide for the contents of the constitution and by-laws.
(b) Misrepresentation, false statements or fraud in connection with the election of officers, minutes of the election of officers, and the list of voters;
The officers should be chosen by the members because they are to act in the interest of the members.
Term of office of officers: 5 years
Minimum condition for membership: YOU MUST BE AN EMPLOYEE in the establishment
Minimum conditions to be an officer: a.
must be a member in good standing (not delinquent)
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Societas Spectra Legis Labor Relations Compilation b.
not a member of a subversive organization (however, there is no longer any law which declared an organization subversive)
c.
not convicted of a crime involving moral turpitude
(c) Voluntary dissolution by the members." -
How done? Article 239-A. (a) 2/3 votes of the general membership (b) in a meeting duly called for the purpose to dissolve the organization, (c) an application to cancel registration is submitted by the board of the organization attested to by the president thereof. (D) filed in the regional office which issued certificate of registration
ART. 239-A. Voluntary Cancellation of Registration. - The registration of a legitimate labor organization may be cancelled by the organization itself. Provided, That at least two-thirds of its general membership votes, in a meeting duly called for that purpose to dissolve the organization: Provided, further, That an application to cancel registration is thereafter submitted by the board of the organization, attested to by the president thereof."
Generally, it is registration which confers legal personality to a labor organization. In the case of local or charter it is the issuance of the Charter Certificate.
The number of grounds for cancellation was lessened in order to promote the creation of unions and to lessen the opportunities of some parties to dissolve the union. Also it abides with ILO 97 (freedom of organization and the right to organize)
OLD GROUNDS UNDER (DO 40-33) (a) Misrepresentation, false statement or fraud in connection with the adoption or ratification of the constitution and by-laws or amendments thereto, the minutes of ratification, and the list of members who took part in the ratification; *(b) Failure to submit the documents mentioned in the preceding paragraph within 30 days from adoption or ratification of the constitution and by-laws or amendments thereto. (c) Misrepresentation, false statements or fraud in connection with the election of officers, minutes of the election of officers, and the list of voters; *(d) Failure to submit these documents together with the list of newly elected or appointed officers and their postal address within 30 days from election. (e) Voluntary dissolution by the members ( new under RA 9481) *(f) Failure to submit the annual report to the Bureau within 30 days after the close of every fiscal year and misrepresentation, false entries or fraud in the preparation of financial report. (g) Acting as labor contractor or engaging in the “cabo” system or otherwise engaging in any activity prohibited by law. (h) Entering into CBA which provides for terms and conditions of employment below the minimum standards established by law (i) Commission of any acts enumerated under Article 241 based on this ground may be granted unless supported by at least 30% of all members of the respondent labor organization; (j) Asking for or accepting attorney’s fees or negotiation fees from the employer; (k) Other than for mandatory activities under the labor code checking off special assessments or any other fees without duly signed individual written authorizations of the members; *(l) Failure to submit list of individual members to the bureau once a year or whenever required by the Bureau (m) Failure to comply with the requirement of registration prescribed under the rules. In addition, a federation or national union or worker’s association may revoke the charter on the ground of: University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Relations Compilation 1.) Disloyalty 2.) Other such ground as may be specified in the constitution and by-laws of the federation, national union or worker’s association. Note: Pars b, d f and l or those with asterisks are no longer grounds for cancellation of registration but are grounds to expel, suspend or fine erring officers or members. Art. 240. Equity of the incumbent. All existing federations and national unions which meet the qualifications of a legitimate labor organization and none of the grounds for cancellation shall continue to maintain their existing affiliates regardless of the nature of the industry and the location of the affiliates.
“Cancellation Proceedings” refer to the legal process leading to the revocation of the legitimate status of a union or workers’ association. (Section 1 [g], Rule I, Book V, Rules to Implement the Labor Code, as amended by Department Order No. 40-03, Series of 2003, [Feb. 17, 2003]).
Subject to the requirements of notice and due process, the registration of any legitimate independent labor union, chartered local and workers' association may be cancelled by the Regional Director, or in the case of federations, national or industry unions and trade union centers, by the Bureau Director, upon the filing of an independent complaint or petition for cancellation. (Section 1, Rule XIV, Book V, Ibid.).
The cancellation of a certificate of registration is the equivalent of snuffing out the life of a labor organization. For without such registration, it loses - as a rule - its rights under the Labor Code. The union is indisputably entitled to be heard before a judgment could be rendered cancelling its certificate of registration. In David vs. Aguilizan, [94 SCRA 707, 713-714 (December 14, 1979)], it was held that a decision rendered without any hearing is null and void. (Alliance of Democratic Free Labor Organization [ADFLO] vs. Laguesma, G. R. No. 108625, March 11, 1996).
The filing or initiation of a cancellation proceeding against a labor organization does not have the effect of depriving it of the rights accorded to a legitimate labor organization. For as long as there is no final order of cancellation, the labor organization whose registration is sought to be cancelled shall continue to enjoy said rights. The pendency alone of cancellation proceedings does not affect the right of a labor organization to sue. (Itogon-Suyoc Mines vs. Sangilo-Itogon Workers Union, 24 SCRA 873).
Such pendency cannot also bar the conduct of a certification election. (Samahan ng Manggagawa sa Pacific Plastic vs. Laguesma, G. R. No. 111245, Jan. 31, 199).
In case cancellation of a union registration is made during the pendency of a case, the labor organization whose registration is cancelled may still continue to be a party to the case without necessity for substitution. Whatever decision, however, may be rendered therein shall only be binding on those members of the union who have not signified their desire to withdraw from the case before its trial and decision on the merits. (Itogon-Suyoc Mines, Inc. vs. Sangilo-Itogon Workers Union, 24 SCRA 873).
The non-renewal of registration or permit does not result in the dismissal of a case pending with the Department of Labor and Employment. The reason is that, at the time of the filing of the case, it has juridical personality and the respondent court had validly acquired jurisdiction over the case. (Philippine Land-Air-Sea Labor Union [PLASLU], Inc. vs. CIR, 93 Phil. 47).
ART. 242-A. Reportorial Requirements. - The following are documents required to be submitted to the Bureau by the legitimate labor organization concerned: (a) Its constitution and by-laws, or amendments thereto, the minutes of ratification, and the list of members who took part in the ratification of the constitution and by-laws within thirty (30) days from adoption or ratification of the constitution and by-laws or amendments thereto; (b) Its list of officers, minutes of the election of officers, and list of voters within thirty (30) days from election; (c) Its annual financial report within thirty (30) days after the close of every fiscal year; and (d) Its list of members at least once a year or whenever required by the Bureau. Failure to comply with the above requirements shall not be a ground for cancellation of union registration but shall subject the erring officers or members to suspension, expulsion from membership, or any appropriate penalty."
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Societas Spectra Legis Labor Relations Compilation ART. 245-A. Effect of Inclusion as Members of Employees outside the Bargaining Unit. - The inclusion as union members of employees outside the bargaining unit shall not be a ground for the cancellation of the registration of the union. Said employees are automatically deemed removed from the list of membership of said union.” RULE XIV CANCELLATION OF REGISTRATION OF LABOR ORGANIZATIONS “Section 6. Prohibited grounds for cancellation of registration – the inclusion as union members of employees who are outside the bargaining unit shall not be a ground to cancel the union registration. The ineligible employees are automatically deemed removed from the list of membership of the union. The affiliation of the rank-and-file and supervisory unions operating within the same establishment to the same federation or national union shall not be a ground to cancel the registration of either union.”
PROCEDURE Note: Cancellation of registration is considered an inter or intra-union dispute 1.
Complaint or petition filed before the Bureau or Regional office. Sec4 rule xi; rule xiv d.o 2008 How? File:
2.
a.
a petition for cancellation of union registration
b.
an application by the organization itself for voluntary dissolution
Formal requirements of the complaint or petition. In writing, verified under oath containing the following: a.
name, address and other personal circumstances of the complainants or petitioner;
b.
name, address and other personal circumstances of the respondents or the persons charged;
c.
nature of the complaint or petition;
d.
facts and circumstances surrounding the complaint or petition;
e.
causes of action or specific violations committed;
f.
a statement that the administrative remedies provided for in the constitution and by laws have been exhausted or such remedies are not readily available to the complainants or petitioners through no fault of his own or compliance with such administrative remedies does not apply to complainants or petitioners;
g.
Reliefs prayed for;
h.
certificate of non-forum shopping; and
i.
other relevant matters.
3.
Raffle of case – for determining the Med-Arbiter or Hearing Officer who shall be assigned to the case in case it is filed with the regional office.
4.
Notice of Preliminary Conference The Med-Arbiter or Hearing officer shall prepare notice of preliminary conference. It shall be scheduled within 10 days from receipt of the complaint or petition. The Med Arbiter or Hearing Officer shall cause the service of summons to the respondents named directing him to answer before the preliminary conference and to appear on the preliminary conference.
5.
Conduct of Preliminary Conference Exertion of effort by the Med-Arbiter or Hearing officer for amicable settlement.
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Societas Spectra Legis Labor Relations Compilation If there is amicable settlement- decision based on compromise shall be issued by the Med- arbiter or Hearing officer. If none- The Med-Arbiter or Hearing officer shall proceed with stipulation of facts, limitation of issues, clarificatory questioning and submission of laws and jurisprudence to support each claim. 6.
Hearing
7.
Affirmation of testimonial Evidence Any affidavit submitted by a party to prove his claim or defenses shall be affirmed by his presentation before the Med-Arbiter or Hearing officer otherwise such evidence is inadmissible unless the party against whom such affidavit is used admits the allegation.
8.
Filing of Pleadings and Position Papers Within 25 day period prescribed before the hearing. If the case is already submitted for decision, no other pleading is allowed
9.
Hearing
10. Decision The Bureau, Med-Arbiter or Regional Director as the case shall have 20 days to decide complaint or petition. The decision shall state facts, findings conclusion and relief granted. 11. Appeal Appeal to the Bureau- decision of Med-Arbiter and Regional Director within 10 Days from receipt thereof. Appeal to the SOLE– decision of the Bureau director It shall be verified under oath and consists of memorandum on appeal stating grounds relied upon with supporting arguments and evidence.
No appeal- decision becomes final after 10 days from receipt by the parties.
only 1 Motion for reconsideration is allowed from decision of Bureau or SOLE in its appellate jurisdiction.
EFFECT OF CANCELLATION "ART. 238-A. Effect of a Petition for Cancellation of Registration. - A petition for cancellation of union registration shall not suspend the proceedings for certification election nor shall it prevent the filing of a petition for certification election. In case of cancellation, nothing herein shall restrict the right of the union to seek just and equitable remedies in the appropriate courts."
it shall operate to divest the local/chapter of their status as legitimate labor organization
it shall divest the local chapter of its legal personality
INQUIRY INTO UNION’S FINANCIAL ACTIVITIES: VISITORIAL POWER (ART. 274) Article 274. Visitorial power. The Secretary of Labor and Employment or his duly authorized representative is hereby empowered to inquire into the financial activities of legitimate labor organizations upon the filing of a complaint under oath and duly supported by the written consent of at least twenty percent (20%) of the total membership of the labor organization concerned and to examine their books of accounts and other records to determine compliance or non-compliance with the law and to prosecute any violations of the law and the union constitution and by-laws: Provided, That such inquiry or examination shall not be conducted during the sixty (60)-day freedom period nor within the thirty (30) days immediately preceding the date of election of union officials. (As amended by Section 31, Republic Act No. 6715, March 21, 1989) Who: The Secretary of Labor and Employment or his duly authorized representative is hereby empowered to inquire into the financial activities of legitimate labor organization and to examine their book of accounts and other records.
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Societas Spectra Legis Labor Relations Compilation Requisite: Upon the filing of a complaint under oath and duly supported by the written consent of at least 20% of the total membership of the labor organization concerned. Purpose: 1. To determine compliance or non compliance with the law and 2. to prosecute any violations of the laws and of the union’s constitution and by-laws. Limitations: Inquiry or examination shall not be conducted during the 60- day freedom period nor within 30 days immediately preceding the date of election of union officials.
They need to submit financial reports for the protection of both the State and the members. In order to determine if the funds have been properly used according to their purpose and to monitor where the sources are coming from.
According to Art. 274 of LC, the Sec. of Labor and Employment has jurisdiction over checking the financial records.
The power can be delegated by the SOLE to the BLR. The law says “the SOLE or his duly authorized representative...”
If the officer of the union responsible for the reportorial requirements is not able to comply, it is NOT a ground for cancellation of the union. The 3 grounds are exclusive.
The consequence of failure to comply according to Article 242-A last paragraph is that the erring officer may be subject to suspension, expulsion from membership and any other appropriate penalties.
If there is a mixture of rank-and-file and supervisory employees in the LO Article 245-A provides that it is not a ground for cancellation. Those employees outside the bargaining unit are automatically deemed removed from the list of members of the union.
OTHER POWER OF SECRETARY OF LABOR (ART. 273) Article 273. Study of labor-management relations. The Secretary of Labor shall have the power and it shall be his duty to inquire into: the existing relations between employers and employees in the Philippines; the growth of associations of employees and the effect of such associations upon employer-employee relations; the extent and results of the methods of collective bargaining in the determination of terms and conditions of employment; the methods which have been tried by employers and associations of employees for maintaining mutually satisfactory relations; desirable industrial practices which have been developed through collective bargaining and other voluntary arrangements; the possible ways of increasing the usefulness and efficiency of collective bargaining for settling differences; the possibilities for the adoption of practical and effective methods of labor-management cooperation; any other aspects of employer-employee relations concerning the promotion of harmony and understanding between the parties; and the relevance of labor laws and labor relations to national development. The Secretary of Labor shall also inquire into the causes of industrial unrest and take all the necessary steps within his power as may be prescribed by law to alleviate the same, and shall from time to time recommend the enactment of such remedial legislation as in his judgment may be desirable for the maintenance and promotion of industrial peace.
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Societas Spectra Legis Labor Relations Compilation OTHER SPECIAL LAWS: RA 7916, CHAP. 4 (SPECIAL ECONOMIC ZONE ACT OF 1995) CHAPTER IV Industrial Harmony in the Ecozones SECTION 37.Labor and Management Relations. — Except as otherwise provided in this Act, labor and management relations in the ECOZONE shall be governed by the existing Labor Code of the Philippines. Employees and personnel in the ECOZONE enterprises shall receive salaries and benefits and shall enjoy working conditions not less than those provided under the Philippine Labor Code and other relevant laws, issuances, rules and regulations of the Philippine government and the Department of Labor and Employment. SECTION 38.Promotion of Industrial Peace. — In the pursuit of industrial harmony in the ECOZONE, a tripartite body composed of one (1) representative each from the Department of Labor and Employment, labor sector and business and industry sectors shall be created in order to formulate a mechanism under a social pact for the enhancement and preservation of industrial peace in the ECOZONE within thirty (30) days after the effectivity of this Act. SECTION 39.Master Employment Contracts. — The PEZA, in coordination with the Department of Labor and Employment, shall prescribe a master employment contract for all ECOZONE enterprise staff members and workers, the terms of which provide salaries and benefits not less than those provided under this Act, the Philippine Labor Code, as amended, and other relevant issuances of the national government. SECTION 40.Percentage of Foreign Nationals. — Employment of foreign nationals hired by ECOZONE enterprises in a supervisory, technical or advisory capacity shall not exceed five percent (5%) of its workforce without the express authorization of the Secretary of Labor and Employment. SECTION 41.Migrant Worker. — The PEZA, in coordination with the Department of Labor and Employment, shall promulgate appropriate measures and programs leading to the expansion of the services of the ECOZONE to help the local governments of nearby areas meet the needs of the migrant workers. SECTION 42.Incentive Scheme. — An additional deduction equivalent to one-half (1/2) of the value of training expenses incurred in developing skilled or unskilled labor or for managerial or other management development programs incurred by enterprises in the ECOZONE can be deducted from the national government’s share of three percent (3%) as provided in Section 24. The PEZA, the Department of Labor and Employment, and the Department of Finance shall jointly make a review of the incentive scheme provided in this section every two (2) years or when circumstances so warrant.
PART I, RULE II, SEC 2 SECTION 2. Protection of Labor - Consistent with Section 2 of the Act, all workers within the ECOZONES shall be assured of their basic rights under the Constitution, including the right to security of tenure and humane conditions of work and right to self-organization.
PART IX, RULE XXIII, SEC. 1-7 PART IX - INDUSTRIAL HARMONY IN THE ECOZONES Rule XXIII - Labor and Management Relations SECTION 1. Objective and Policy - The PEZA adopts a policy of industrial peace and productivity within the ECOZONE thru cooperation between labor and management to eliminate unnecessary conflicts and providing for effective mechanisms in the early settlement of disputes. SECTION 2. Labor Code - The Labor Code of the Philippines shall govern the relationship between labor and management of the ECOZONE registered enterprises. Salaries and benefits and working conditions for personnel employees shall not be diminished beyond those prescribed in the Labor Code and relevant laws, issuances and other pertinent rules and regulations of the government. SECTION 3. Labor Center - Consistent with the one stop shop center, a Labor Center shall be established within the ECOZONE. Under the supervision of the ECOZONE Administrator, the Center shall be handled by the ECOZONE's Human Resources Unit in coordination with a Tripartite Oversight Committee composed of a representative from the Department of Labor and Employment, a representative from the labor sector and one from the management sector. It shall serve as a window for all labor related activities and shall offer services for the following: a. MANPOWER POOL - The Labor Center shall maintain a bulletin for job opportunities and an index of job applicants. A manpower bank University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Relations Compilation consisting of an index of available work force within the vicinity and neighboring areas of the ECOZONE shall be continually updated and maintained. b. TRAINING - In coordination with the Technical Education and Skills Development Authority (TESDA) created under R.A. 7796, the PEZA shall provide facilities that will assist workers to learn skills, to retrain and enhance acquired skills as the case may be and to provide training modules and materials and other technical assistance and facilitation services. PEZA may likewise solicit coordination with other government agencies or non-government organization for training purposes. SECTION 4. Priority in Hiring - On a best effort basis and in consultation with the local government units, ECOZONE enterprise shall give priority in hiring workers from the immediate community to prevent and to mitigate the migration of workers to other areas. SECTION 5. Migrant Workers - The PEZA, in coordination with the local government unit and other appropriate government and nongovernment organizations, shall implement an integrated program to address the housing, health and social needs of migrant workers. SECTION 6. Tripartite Body - A tripartite body shall be created to formulate a mechanism under a social pact for the enhancement and preservation of industrial peace in the ECOZONE. The body shall be composed of one (1) representative each from the Department of Labor and Employment, labor and business sectors with the PEZA acting as the Secretariat. The policies and declarations to be formulated by the body shall be embodied in a formal document and disseminated to all parties concerned. It shall then act as a, guide in all actions to be taken by the PEZA as well as the ECOZONE Advisory Council in the maintenance and promotion of sound labor-management relations within the ECOZONE. SECTION 7. Master Employment Contract - The PEZA in coordination with DOLE shall prescribe a master employment contract for every ECOZONE enterprise staff members and workers. The master contract shall indicate the terms and conditions of employment which shall include the following: 1. Salaries and wages according to trades or industry sectors, consistent within the ECOZONE and not less than the minimum wage prescribed in the region; 2. Summary of benefits given by the enterprise; 3. Terms and employment whether probationary learner or apprentice, permanent, contractual or any other special arrangements; 4. Working hours or periods; and 5. Highlights of pertinent working conditions under the Labor Code of the Philippines. Labor and management are, however, not precluded from entering into a Collective Bargaining Agreement which best reflects their mutual covenants in accordance with the provisions of the Labor Code of the Philippines and other laws and issuances.
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Societas Spectra Legis Labor Relations Compilation
TOPIC 13: RIGHTS OF LEGITIMATE LABOR ORGANIZATION RIGHTS IN GENERAL (ART. 242, AS AMENDED) RIGHTS IN GENERAL: 1) Autonomy and governance of its affairs, particularly: a) to draw up their constitution; b) freely elect their representatives; c) to organize their activities and formulate programs; d) dissolve or suspend the organization; 2) Right to its funds or property; 3) Right to protection from unfair labor practices.
UNDER THE LABOR CODE: Article 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 collective bargaining unit for purposes of collective bargaining; (c) To be furnished by the employer, upon written request, with his 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 RA 6715)
This presupposes that the labor organization has been duly registered.
To act as representative of its members for the purpose of collective bargaining
-
The legal relation that is established is that of principal-agent. Principal: Members, Agent: the organization.
-
Chartered Local: Principal, Federation: Agent
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Bargaining Unit- may be comprised of members or non-members of the union
-
For the purposes of the CBA, the CBA must redound not only for the benefit of members of the union but also for the whole bargaining unit.
To be certified as the exclusive representative of all the employees in an appropriate bargaining unit for purposes of collective bargaining -
The organization must either be recognized or certified as the exclusive bargaining agent
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Societas Spectra Legis Labor Relations Compilation EXCLUSIVE BARGAINING AGENT EXCLUSIVE BARGAINING REPRESENTATIVE - refers to a legitimate labor union duly recognized or certified as the sole and exclusive bargaining representative or agent of all the employees in a bargaining unit.
PURPOSE OF AN EXCLUSIVE BARGAINING AGENT Under Art 242 of the Labor Code: (a) To act as the representative of its members for the purpose of collective bargaining;
CERTIFICATION PROCESS: CERTIFICATION ELECTION AND VOLUNTARY RECOGNITION Article 256. Representation issue in organized establishments. In organized establishments, when a verified petition questioning the majority status of the incumbent bargaining agent is filed before the Department of Labor and Employment within the sixty-day period before the expiration of the collective bargaining agreement, the Med-Arbiter shall automatically order an election by secret ballot when the verified petition is supported by the written consent of at least twenty-five percent (25%) of all the employees in the bargaining unit to ascertain the will of the employees in the appropriate bargaining unit. To have a valid election, at least a majority of all eligible voters in the unit must have cast their votes. The labor union receiving the majority of the valid votes cast shall be certified as the exclusive bargaining agent of all the workers in the unit. When an election which provides for three or more choices results in no choice receiving a majority of the valid votes cast, a run-off election shall be conducted 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 percent (50%) of the number of votes cast. At the expiration of the freedom period, the employer shall continue to recognize the majority status of the incumbent bargaining agent where no petition for certification election is filed. (As amended by Section 23, Republic Act No. 6715, March 21, 1989) Article 257. Petitions in unorganized establishments. In any establishment where there is no certified bargaining agent, a certification election shall automatically be conducted by the Med-Arbiter upon the filing of a petition by a legitimate labor organization. (As amended by Section 24, Republic Act No. 6715, March 21, 1989) Article 258. When an employer may file petition. When requested to bargain collectively, an employer may petition the Bureau for an election. If there is no existing certified collective bargaining agreement in the unit, the Bureau shall, after hearing, order a certification election. All certification cases shall be decided within twenty (20) working days. The Bureau shall conduct a certification election within twenty (20) days in accordance with the rules and regulations prescribed by the Secretary of Labor.
RULES IN THE CONDUCT OF CERTIFICATION ELECTION (UNDER DO 40-03) RULE IX CONDUCT OF CERTIFICATION ELECTION 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 preelection 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 pre-election conference upon the contending unions and the employer, which shall be scheduled within ten (10) days from receipt of the assignment. The employer shall be required to submit the certified list of employees in the bargaining unit, or where necessary, the payrolls covering the numbers of the bargaining unit at the time of the filing of the petition. (as amended by DO. 40-F-03) 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 of its right to be present and to question or object to any of the agreements reached in said pre-election conference. However, this shall deprive the non-appearing party the right to be furnished notices of and to attend subsequent preelection conferences. (as amended by DO. 40-F-03) University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Relations Compilation 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 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 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. 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. 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. The number of ballots should correspond to the number of voters in the bargaining unit plus a reasonable number of extra ballots for contingencies. All ballots shall be signed at the back by the Election Officer and an authorized representative of each of the contending unions. A party who refuses or fails to sign the ballots waives his right to do so and the Election Officer shall enter the fact of such refusal and the reason therefor in the records of the case. (as amended by DO. 40-F-03) 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 shall 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. Procedure in the challenge of votes. – The ballot of the voter who has been properly challenged during the pre-election conferences, shall place the ballot in an envelope which shall be sealed by the Election Officer in the presence of the voter and the representatives of the contending unions. 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. 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 by the mediator-arbiter only if the number of segregated voters will materially alter the results of the election. Section 11. 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 grounds for challenge specified in the immediately preceding section. Section 12 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. Section 13. 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
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Societas Spectra Legis Labor Relations Compilation 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. Section 14. Conduct of election and canvass of votes. - The election precincts shall open and close on the date and time agreed upon during the pre-election conference. The opening and canvass of votes shall proceed immediately after the precincts have closed. Failure of the representative/s of the contending unions to appear during the election proceedings and canvass of votes shall be considered a waiver of the right to be present and to question the conduct thereof. Section 15. 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. Section 16. 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 Officer shall declare a failure of election in the minutes of the election proceedings. Section 17. 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. Section 18. Action on the motion. - Within twenty-four (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. Section 19. 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.
VOLUNTARY RECOGNITION VOLUNTARY RECOGNITION – refers to the process by which a legitimate labor union is recognized by the employer as the exclusive bargaining representative or agent in a bargaining unit. BOOK V, RULE VII VOLUNTARY RECOGNITION 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 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 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 (15) consecutive days in at least (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 within the bargaining unit.
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Societas Spectra Legis Labor Relations Compilation All accompanying documents of the notice for voluntary recognition shall be certified under oath by the employer representative and president of the recognized labor unions IRR, Book V, Rule VII, Sec 2 - joint statement of voluntary recognition between the ER and the LLO accompanied by at least majority of the members in the bargaining unit. Requirements: (in an unorganized establishment) 1. A joint statement under oath of voluntary recognition attesting to the fact of voluntary recognition; 2. Certificate of posting of the joint statement of voluntary recognition for (15) consecutive days in at least (2) conspicuous places in the establishment or bargaining unit where the union seeks to operate; 3. 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 4. A statement that the labor union is the only legitimate labor organization within the bargaining unit. Note: Certified under oath by the employer representative and president of the recognized labor union.
The requirements for voluntary recognition are more stringent. It is as if you underwent certification election process but even worse because certification election, you only need majority of the valid votes cast. However, in voluntary recognition you need the majority of the members of the bargaining unit.
Date of Effectivity – time of recording of voluntary recognition. Effects of Registration – 1. Enjoyment of the rights, privileges and obligations of an existing bargaining agent of all the employees in the bargaining unit. 2. Bar the filing of a petition for a certification election by any labor organization for a period of (1) year from the date of entry of voluntary recognition. Note: Direct Certification is no longer allowed as the will of the majority is frustrated.
CERTIFICATION ELECTION CERTIFICATION ELECTION – refers to the process of determining through secret ballot the sole and exclusive representative of the employees in a bargaining unit for purposes of collective bargaining/negotiation ordered by DOLE. -
One must distinguish between unorganized and organized establishment
The certification election is NOT adversarial. It is merely a fact-finding investigation and non-adversarial proceeding to ascertain the desire of the employees on matters of their representation.
There can be many legitimate labor organizations in an establishment or bargaining unit.
PETITION
Who may file
Unorganized Establishment- with no certified bargaining agent or certified bargaining agreement 1)
Any legitimate labor organization
2)
When requested to bargain collectively, an employer
Organized Establishment- with certified or recognizing bargaining agent or an existing certified bargaining agreement 1)
Any legitimate labor organization (chartered local; national union or federation provided it has issued the charter certificate)
2)When requested to bargain collectively, an employer Where to Regional Office of BLR which issued the file petitioning union’s certificate of registration/certificate of creation of chartered
Regional Office of BLR which issued the petitioning union’s certificate of registration/certificate of creation of chartered local.
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Societas Spectra Legis Labor Relations Compilation local. When to file Anytime Note:Where there is no certified bargaining agent, it shall be automatically conducted upon the filing of a petition by a legitimate labor organization.
During the freedom period- 60 days prior to expiration of life of CBA 1)
When a fact of voluntary recognition has been entered or a valid certification, consent or run-off election has been conducted within the bargaining unit within (1) year prior to the filing of the petition for certification election;
Note: Where an appeal has been filed from the order of the Med-Arbiter certifying the results of the election, the running of the 1-year period shall be suspended until the decision on the appeal has become final and executory.
Hearing Officer
Med-Arbiter
Forms and Section 4, Rule VIII, is hereby amended to read Contents of as: Petition SECTION 4. Form and Contents of Petition. — The petition shall be in writing, verified under oath by the president of petitioning labor organization. Where a federation or national union FILES A PETITION IN BEHALF OF ITS LOCAL OR AFFILIATE, THE PETITION shall BE verified under oath by the president or duly authorized representative OF THE FEDERATION OR NATIONAL UNION. IN CASE THE EMPLOYER FILES THE PETITION, THE OWNER, PRESIDENT OR ANY CORPORATE OFFICER, WHO IS AUTHORIZED BY THE BOARD OF DIRECTORS, SHALL VERIFY THE PETITION. The petition shall contain the following: 1)
2)
When the duly certified union has commenced and sustained negotiations in good faith with the employer in accordance with Article 250 of the LC within the 1-year period referred in the immediately preceding paragraph;
3)
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;
4)
When the CBA between the ER and a duly recognized or certified bargaining agent has been registered in accordance with Article 231 of the LC. Where such CBA is registered, the petition may be filed only within (60) days prior to its expiry.
Med-Arbiter Section 4, Rule VIII, is hereby amended to read as: SECTION 4. Form and Contents of Petition. — The petition shall be in writing, verified under oath by the president of petitioning labor organization. Where a federation or national union FILES A PETITION IN BEHALF OF ITS LOCAL OR AFFILIATE, THE PETITION shall BE verified under oath by the president or duly authorized representative OF THE FEDERATION OR NATIONAL UNION. IN CASE THE EMPLOYER FILES THE PETITION, THE OWNER, PRESIDENT OR ANY CORPORATE OFFICER, WHO IS AUTHORIZED BY THE BOARD OF DIRECTORS, SHALL VERIFY THE PETITION. The petition shall contain the following: 1)
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 national president or his/her duly authorized representative shall CERTIFY UNDER OATH AS TO the existence 2) of its local/chapter in the establishment 3) and ATTACHING THERETO THE CHARTER 4) CERTIFICATE OR A CERTIFIED TRUE COPY
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 national president or his/her duly authorized representative shall CERTIFY UNDER OATH AS TO the existence of its local/chapter in the establishment and ATTACHING THERETO THE CHARTER CERTIFICATE OR A CERTIFIED TRUE COPY THEREOF. If the petition is filed by a local/chapter IT SHALL ATTACH; The name, address, and nature of employer’s business; The description of the bargaining unit; The approximate number of employees in the bargaining
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Societas Spectra Legis Labor Relations Compilation THEREOF. If the petition is filed by a local/chapter IT SHALL ATTACH; 2)
The name, address, and nature of employer’s business;
3)
The description of the bargaining unit;
4)
The approximate number of employees in the bargaining unit;
5)
The names and addresses of other legitimate labor unions in the bargaining unit;
6)
5)
The names and addresses of other legitimate labor unions in the bargaining unit;
6)
A statement indicating any of the following: a.
that the bargaining unit is unorganized or that there is no registered collective bargaining agreement covering the employees in the bargaining unit;
b.
if there exists a duly registered collective bargaining agreement, that the petition is filed within the 60day freedom period of such agreement; or
c.
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 1-year period from entry of voluntary recognition or conduct of certification or run-off election and no appeal pending thereon.
A statement indicating any of the following: a.
that the bargaining unit is unorganized or that there is no registered collective bargaining agreement covering the employees in the bargaining unit;
b.
if there exists a duly registered collective bargaining agreement, that the petition is filed within the 60-day freedom period of such agreement; or
c.
7)
unit;
7)
The signature of at least (25%) of all employees in the appropriate bargaining unit;
8)
Other relevant facts.
1)
Raffle of the case to determine the Med-Arbiter to be assigned to the case;
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 1-year period from entry of voluntary recognition or conduct of certification or run-off election and no appeal pending thereon.
Other relevant facts.
N.B. Petition must me verified under oath by the president of the petitioning labor organization or its duly authorized representative. Procedure 1)
Raffle of the case to determine the MedArbiter to be assigned to the case;
2)
Within (3) days from receipt of petition, the 2) Within (3) days from receipt of petition, the Med-Arbiter Med-Arbiter shall cause the service of shall cause the service of notice of preliminary conference notice of preliminary conference upon the upon the employer and incumbent bargaining agent which employer and incumbent bargaining agent shall be within (10) days from receipt of the petition; which shall be within (10) days from receipt Note: A copy of the notice of preliminary conference and of the petition; petition for certification election shall be posted in at least (2) Note: A copy of the notice of preliminary conspicuous places in the establishment. conference and petition for certification election shall be posted in at least (2) conspicuous places 3) Motion for intervention by any legitimate labor union other than the incumbent bargaining agent shall be filed in the establishment. during the freedom period of the CBA to Med-Arbiter. 3) Motion for intervention by any legitimate labor union other than the incumbent bargaining agent shall be filed at any time University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Relations Compilation prior to the decision of the Med-Arbiter. Preliminary Determination of: Conference and Hearing 1) The bargaining unit to be represented;scope that the bargaining unit which to represent
Hearings
Determination of: 1)
The bargaining unit to be represented;
2)
Contending labor unions;
2)
Contending labor unions;
3)possibility of consent election
3)
Such other matters as may be relevant for the final disposition of the case.
3)
Existence of any of the bars to certification election;
4)
Such other matters as may be relevant for the final disposition of the case.
Not exceed (15) days from the date of the scheduled preliminary conference. Extensions of time shall not be entertained.
Not exceed (15) days from the date of the scheduled preliminary conference. Extensions of time shall not be entertained.
Note: Failure to appear shall be deemed a waiver of its right to be heard.
Note: Failure to appear shall be deemed a waiver of its right to be heard.
Order/Decis Within (10) days from the date of the last ion hearing.
Within (10) days from the date of the last hearing.
Contents of 1) Order Granting the 2) Petition
1)
The name of the employer or establishment;
2)
The description of the bargaining unit;
3)
A statement that none of the grounds for dismissal exists;
4)
the names of THE contending labor unions which shall appear IN THE FOLLOWING ORDER: THE petitioner unions in the order OF THE DATE OF FILING OF THEIR RESPECTIVE PETITIONS; THE forced intervenor; and "no union";
The name of the employer or establishment; The description of the bargaining unit;
Note: No order or decision shall be issued during the freedom period.
3)
A statement that none of the grounds for dismissal exists;
4)
The names of the contending labor unions;
5)
A directive upon the ER and the contending union(s) to submit within (10) days from receipt of order, the certified list of employees in the bargaining unit, or 5) where necessary, the payrolls covering the members of the bargaining unit for the last (3) months prior to the issuance of the order.
6)
TO AFFORD AN INDIVIDUAL EMPLOYEE-VOTER AN INFORMED CHOICE WHERE A LOCAL/CHAPTER IS ONE OF THE CONTENDING UNIONS, A DIRECTIVE TO AN UNREGISTERED LOCAL/CHAPTER OR A FEDERATION/NATIONAL UNION REPRESENTING AN UNREGISTERED LOCAL/CHAPTER TO PERSONALLY SUBMIT TO THE ELECTION OFFICER ITS CERTIFICATE OF CREATION AT LEAST FIVE WORKING DAYS BEFORE THE ACTUAL CONDUCT OF THE CERTIFICATION ELECTION. NONSUBMISSION OF THIS REQUIREMENT AS CERTIFIED BY THE ELECTION OFFICER SHALL DISQUALIFY THE LOCAL/CHAPTER FROM PARTICIPATING IN THE CERTIFICATION ELECTION; AND A directive upon the ER and the contending union(s) to submit within (10) days from receipt of 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 (3) months prior to the
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Societas Spectra Legis Labor Relations Compilation issuance of the order. Grounds for 1) Denial of Petition 2)
The petitioner is not listed in the Department’s registry of legitimate labor unions; The petitioner’s legal personality has been revoked or cancelled with finality in accordance with Rule XIV of the Rules.
1)
The petitioner is not listed in the Department’s registry of legitimate labor unions;
2)
The petitioner’s legal personality has been revoked or cancelled with finality in accordance with Rule XIV of the Rules;
Note: If petition for cancellation is still pending, the petition for certification election cannot be denied or suspended on such ground. Until such time that the registration has been cancelled, the labor union enjoys legal personality. 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)
The petition was filed before or after the freedom period of a duly registered CBA; provided that the sixty-day period based on the original CBA shall not be affected by any amendment, extension or renewal of the CBACONTRACT BAR RULE.
Note: The CBA has to be registered in accordance with Art.231 of the LC. 5)
Filing of petition within (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 – CERTIFICATION YEAR RULE.
- once an LLO is certified it is its duty to bargain collectively if we are to allow a petition within one year it will disrupt the bargaining union in performing its duty 5)
Where a duly certified union has commenced and sustained negotiations with the ER in accordance with Art.250 of the LC within the 1-year period referred to in the preceding paragraph ( NEGOTIATION BAR RULE) or there exists a bargaining deadlock which had been submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout to which an incumbent or certified bargaining agent is a party (BARGAINING DEADLOCK RULE);
- certification of election will just aggravate the situation; it is NOT conducive to industrial stability ; if petition is filed AFTER the bargaining deadlock 6)
Failure to submit the (25%) support requirement for the filing of the petition for certification election.
- there is already an incumbent bargaining union who is supported by the majority of the employees in the bargaining unit 7)non appearance of the petitioner for 2 consecutive scheduled conferences before the mediator-arbiter
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Societas Spectra Legis Labor Relations Compilation despite due notice; and 8)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 CONDUCT OF ELECTION
Unorganized Organization
Hearing Officer Procedure
Pre-election Conference
Organized Organization
Election Officer 1)
Within 24 hours from receipt of the notice of entry of final judgment, the case shall be raffled to an Election Officer who shall have control of the pre-election conference and election proceedings.
2)
Election Officer 1)
Within 24 hours from receipt of the notice of entry of final judgment, the case shall be raffled to an Election Officer who shall have control of the pre-election conference and election proceedings.
3)
Within 24 hours from receipt of the assignment, the Election Officer shall cause the issuance of notice of pre-election conference upon the contending unions and the employer, which shall be scheduled within 10 days from receipt of assignment.
Within 24 hours from receipt of the assignment, the Election Officer shall cause the issuance of notice of preelection conference upon the contending unions and the employer, which shall be scheduled within 10 calendar days from receipt of assignment. The employer shall be required to submit the certified list of employees in the bargaining unit or where necessary, the payrolls covering the members of the bargaining unit at the time of the filing of the petition
Set Mechanics and Determination of:
Set Mechanics and Determination of:
Date, time and place of the election, which 1) shall not be later than 45 days from the date of first pre-election conference, and shall be on a regular working day and within the employer's premises, unless circumstances require otherwise; 1) List of eligible and challenged voters;
Date, time and place of the election, which shall not be later than 45 days from the date of first pre-election conference, and shall be on a regular working day and within the employer's premises, unless circumstances require otherwise;
3)
Number and location of polling places or booths and the number of ballots to be prepared with appropriate translations, if necessary;
2)
Number and location of polling places or booths and the number of ballots to be prepared with appropriate translations, if necessary;
3)
4)
Name of watchers or representatives and their alternatives for each of the parties during the election;
Name of watchers or representatives and their alternatives for each of the parties during the election;
4)
Mechanics and guidelines of election.
1)
2)
List of eligible and challenged voters; (inclusion/ exclusion proceedings)
Note: Failure to appear shall be considered as a waiver of its right to be present and to question or object to any of the Note: Failure to appear shall be considered as a agreements. However, it shall not be deprived of the right to be waiver to be present and to question or object to furnished notices of subsequent pre-election conferences and to any of the agreements. However, it shall not be attend the same. deprived of the right to be furnished notices of Note: The role of the ER is a mere bystander while the subsequent pre-election conferences and to representative of the DOLE is a mere observer in Certification attend the same. Election. They are not parties. Only the employees are parties Note: The role of the ER is a mere bystander themselves. while the representative of the DOLE is a mere observer in Certification Election. They are not parties. Only the employees are parties 5)
Mechanics and guidelines of election.
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Societas Spectra Legis Labor Relations Compilation themselves. Failure of It shall not bar the filing of a motion for the It shall not bar the filing of a motion for the immediate holding Election immediate holding of another certification or of another certification or consent election within (6) months consent election within (6) months from date of from date of declaration of failure of election. declaration of failure of election.
Failure of election- - it is 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. Proclamatio The Med-Arbiter from receipt of the minutes and n and results of election, shall issue an order Certification proclaiming the results of the elections and of Result certifying the union which obtained a majority of the valid votes cast as the sole and exclusive bargaining unit under any of the following conditions: 1)
2)
The Med-Arbiter from receipt of the minutes and results of election, shall issue an order proclaiming the results of the elections and certifying the union which obtained a majority of the valid votes cast as the sole and exclusive bargaining unit under any of the following conditions: 3)
No protest was filed or even if one was filed, same was not perfected within the 54) day period for perfection of the protest;
No protest was filed or even if one was filed, same was not perfected within the 5-day period for perfection of the protest; 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 election.
No challenge or eligibility issue was raised or, even if one was raised, the resolution of Note: Where majority of the valid votes cast results in “No the same will not materially change the Union” obtaining the majority, the Med-Arbiter shall declare results of the election. such fact in the order. Note: Where majority of the valid votes cast results in “No Union” obtaining the majority, the Med-Arbiter shall declare such fact in the order.
Appeal or Any party to an election may appeal the results of Any party to an election may appeal the results of the election as Remedies the election as determined by the Med-Arbiter determined by the Med-Arbiter directly to the SOLE on the directly to the SOLE on the ground that the rules ground that the rules and regulations or parts thereof for the and regulations or parts thereof for the conduct conduct of certification election have been violated. of certification election have been violated.
WHO MAY FILE FOR CERTIFICATION ELECTION (Sec 1, Rule VII of DO 40-F-03) RULE VIII Certification Election SECTION 1. Who may File. — Any legitimate labor organization, INCLUDING A NATIONAL UNION OR FEDERATION THAT HAS ISSUED A CHARTER CERTIFICATE TO ITS LOCAL/CHAPTER OR THE LOCAL/CHAPTER ITSELF, may file a petition for certification election. A NATIONAL UNION OR FEDERATION FILING A PETITION IN BEHALF OF ITS LOCAL/CHAPTER SHALL NOT BE REQUIRED TO DISCLOSE THE NAMES OF THE LOCAL/CHAPTER'S OFFICERS AND MEMBERS, BUT SHALL ATTACH TO THE PETITION THE CHARTER CERTIFICATE IT ISSUED TO ITS LOCAL/CHAPTER. When requested to bargain collectively IN A BARGAINING UNIT WHERE NO REGISTERED COLLECTIVE BARGAINING AGREEMENT EXISTS, an employer may file a petition for certification election with the Regional Office. 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 University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Relations Compilation INFORMED OF PETITIONS OF SUCH NATURE; AND (2) SUBMITTING THE LIST OF EMPLOYEES DURING THE PRE-ELECTION CONFERENCE SHOULD THE MED-ARBITER ACT FAVORABLY ON THE PETITION. ANY EMPLOYEE HAS THE RIGHT TO INTERVENE FOR THE PROTECTION OF HIS INDIVIDUAL RIGHT. Summary on who may file: a.
Any Legitimate Labor Organization
b.
The employer when requested to bargain collectively by any LLO
c.
A national union or federation, who has ISSUED a charter certificate, in behalf of its local/chapter -
NU or F are not required to disclose the names of its officers and members of the local/chapter
It is NOT required for a national union to disclose the local/chapter’s officers and members (Sec 1, Rule VIII of DO-40-F-03)
In the chartering or creation of a local/chapter under Article 234-A, the names of its members are NOT included. So as to encourage affiliation to national unions or federations.
Venue over petition for Certification Election -
Regional Office which issued the petitioning union’s certificate of registration/ certificate of creation of chartered local
Jurisdiction -
Med-Arbiter of DOLE/BLR
-
Med-Arbiter refers to an officer authorized to hear representation cases, inter/intra union disputes and other related disputes except cancellation of registration.
Federation -> charter certificate to local -> chartered local acquires legal personality for the purpose of certification election -> federation reports to the BLR Contents of a petition for certification election (Book V, Rule VIII Section 4) a.
Name of petitioner, address and affiliation...
b.
Name and address of employer
c.
Description of bargaining unit (BU) -
Whether it is rank-and-file or supervisory
-
Time barred earners have different interests with field workers. There are some differences thus it is better if they are in different BUs. But it is also possible to have them in the same BU.
d.
Approximate number of employees in the BU
-
To have an idea on the number of voters in the bargaining unit
e.
Names and addresses of other legitimate labor unions in the BU
f.
Statement indicating any of the following:
1)
That the BU is unorganized or that there is no registered CBA... -to determine the conduct of certification election. To know who may or when to file petition for certification election
2)
If there exists a duly registered CBA, that the petition is filed within the 60-day freedom period of such agreement
3)
If another union has been previously recognized voluntarily or certified in a valid certification, consent or run-off election, that the petition is filed outside the 1-year period from entry of voluntary recognition or conduct of certification or run-off election and no appeal is pending thereon. o
1-year rule- within 1 year from the date you have been certified as a bargaining union you cannot be disturbed by filing another petition for certification election.
o
Contract bar rule
g.
For organized, signature of at least 25% of all employees in the bargaining unit
h.
Other relevant facts
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Societas Spectra Legis Labor Relations Compilation Contents will tell you that it is not easy to file for certification election. Purpose of Certification Election -
to ascertain the will of the employees for collective bargaining
When may the petition be filed -
Any time.
Role of the ER in the CE -
Employer is a mere bystander. Article 258-A
-
The ER may participate ONLY in the following instances:
-
a.
The right to be furnished a copy of the petition
b.
Providing the list of employees in the unit for pre-election
Not the same with Innocent bystander which refers to picketing
Role of the DOLE -
Also a mere bystander. It merely facilitates the conduct of the election.
PROCEDURE 1.
The petition for certification election will be raffled by the Regional Director to the Med-Arbiter.
2.
The Med-Arbiter will serve a copy of the petition to the employer.
3.
A notice of the petition together with the notice of preliminary conference will be posted in at least 2 conspicuous places in the establishment. -
Without the posting, the election becomes irregular.
-
Conspicuous means noticeable and visible. You post it in a place where a lot of people can easily see it.
-
The purpose of the posting is in order to apprise the EEs in the establishment particularly the bargaining unit sought to be represented by the union that there is this union who wants to represent them for the purpose of collective bargaining.
-
A notice of preliminary conference is a notice which is sent 3 days from receipt of petition will be given to the ER and to the petitioner
-
The preliminary conference is to be conducted within 10 days from the receipt of the Med Arbiter of the petition
-
There are 2 conferences: a. Preliminary conference – this is called by the Med-Arbiter. The petitioning union and its representatives are expected to be present. The ER may also be present since a copy of the petition has been served but his presence is not mandatory (mere bystander).
- In the preliminary conference you determine the following: a.
The bargaining unit to be represented
b.
Contending labor unions
c.
Such other matters as may be relevant for the final disposition of the case b. Pre-election conference
4.
During the preliminary conference, the Med-Arbiter will determine whether the petition complied with the rules, both in form and substance.
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Societas Spectra Legis Labor Relations Compilation 5.
Since it is an unorganized establishment, it is likely that there is no certified bargaining union so there is no impediment to the holding of the election.
After the preliminary conference, Med-arbiter will decide whether to grant or deny the petition. -
The Med-Arbiter will check whether any of the grounds to deny is present. If none of the grounds to deny exist the petition will has to be granted as a matter of right.
-
Grounds for denial of petition IN GENERAL: (Book V, Rule VIII, Sec. 14) a.
6.
The petitioner is not listed in the Department’s registry of legitimate labor unions or that its legal personality has been revoked or cancelled with finality. o
For UNORGANIZED establishments the only ground for denial in the enumeration is letter (a). Another ground is if the petitioning union fails to appear in at least 2 conferences.
o
Ex: the petition was filed by a federation or national union but there is no proof that it was issued a charter certificate creating a chartered local or chapter.
b.
The petition was filed before or after the freedom period of a duly-registered collective bargaining agreement.
c.
The petition was filed within 1 year from entry of voluntary recognition or a valid certification, consent or run-off election is pending.
d.
A duly certified union has commenced and sustained negotiations with the employer in accordance with Article 250 of the LC within the 1-year period referred to above, or there exists a bargaining dreadlock, which had been submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout to which an incumbent or certified bargaining agent is party.
e.
In case of an organized establishment, failure to submit the 25% support requirement of the petition for certification election.
The Med-Arbiter will issue an order of election either granting or denying the petition for the conduct of a certification election. -
The law is silent whether there can be an appeal from the order granting the certification election but the rules do not allow an appeal because there is no as yet a certified bargaining union and the policy of the State is to promote unionism so just proceed with the conduct of an election.
-
In an order denying the petition for certification election, the petitioning union, whose petition was denied, may appeal the order denying the petition to the SOLE within 10 calendar days from the receipt of the order of the denial. Unorganized: Granting certification- unappelable Denial- appealable Organized: Granting- appealable Denial- appealable
-
The appeal shall be verified under oath and shall consist of a memorandum of appeal, specifically stating the grounds relied upon by the appellant with the supporting arguments and evidence. The memorandum of appeal shall be filed in the Regional Office where the petition originated.
-
The SOLE has 15 days from receipt of the entire records of the petition within which to decide the appeal. The filing of the memorandum of appeal from the order or decision of the Med- Arbiter stays the holding of any certification election.
-
The decision of the SOLE shall be final and executory after 10 days from receipt thereof by the parties. NO Motion for reconsideration of the decision shall be entertained. The remedy from the decision of the SOLE is a petition for certiorari to the CA, not an appeal. From the CA to the SC under Rule 45.
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7.
-
The order granting the petition shall include a directive upon the union and the ER to submit within 10 days from receipt of order, with the Med-Arbiter, a certified list of EEs in the bargaining unit for the last 3 months prior to the issuance of the order,
-
What is the purpose of the certified list of EEs? To determine who will be allowed to participate in the election. Obviously, you do not include in the list the managerial employees because they are not allowed to be part of the rank-and-file employees.
-
In practice, the ER usually delays the submission of the list of EEs so that is the reason why the rules also require the union to submit its own list. In one case, the ER refused to submit a list, what a union did was to get a list from the SSS.
After issuing the order, the Med-Arbiter will transmit the records back to the RD and the RD will raffle the case to a so-called Election Officer. -
8.
Election officer will issue a notice of pre-election conference, a copy of which will be served to the petitioning union for the conduct of the pre-election conference. -
9.
The Election Officer is different from the Med-Arbiter. The Med-Arbiter is usually a lawyer while the Election Officer need not be a one.
Election Officer presides over the pre-election conference.
During the pre-election conference there is an inclusion-exclusion proceeding where it is determined who among those in the list will be included to participate in the election and who will be excluded. -
Ex. If managerial: excluded. If supervisor: excluded from union of rank-and-files. If there are members of the bargaining unit not included in the list then they should be included.
-
Those excluded may automatically be considered challenged voters whose names will be segregated from the list of qualified voters.
-
In the pre-election conference, the election officer will also check when the certification may be scheduled, the date, place and time of the conduct of the certification election, the number of polling precinct, in the polling precinct, the number of polling booths and the designation of the ballot box. In other words, the mechanics in the conduct of election will be defined during the pre-election conference.
-
The Election Officer does NOT have the power to rule on objections on the eligibility of some voters (whether an EE is qualified to vote) It is the Med-Arbiter who has the power to decide ultimately on who is qualified and who is disqualified from voting. The objections will just be received by the Election Officer and it will form part of the records for the MedArbiter to decide on the issue.
10. After everything has been set, the Election Officer will issue and require the posting of the notice of the conduct of the election. -
Such notice will be posted for 10 days in at least 2 conspicuous places in the establishment.
-
The purpose of this is for the EEs to be informed that an election will be conducted.
-
If an EE sees in the list of qualified and challenged voters that he has been unfairly excluded, he has the right to bring the issue to the attention of the election officer who can make the necessary corrections. This is because every individual EE has the right to protect his right to self-organization.
-
Do not get the intervention of the management because they are supposed to keep their hands off in the conduct of election.
11. On the date of the election, there will be an inspection of the polling place to be done in the presence of the DOLE representative and in the presence of the ER’s representative.. -
The ballots are usually authenticated by the DOLE representative to prevent tampering of ballots or substitution.
12. Once the inspection is done, at the time provided in the notice, the voters will now be allowed to cast their votes. -
Atty. Marquez: In my experience, since the union is the organizer, they usually encourage their employees to vote early.
-
If you want to challenge a vote, you have to make the necessary objections before a voter will drop her vote not after. Because if it is after, it will be mixed with the other ballots so you will not know which ballot belongs to that voter. That
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Societas Spectra Legis Labor Relations Compilation vote will have to be segregated by the election officer in a separate envelope and he has to indicate there the reason for the challenge of the vote. -
Grounds to challenge a voter: 1. that there is no employer- employee relationship between the voter and the company 2. that the voter is not a member of the appropriated bargaining unit which petitioner seeks to represent
13. Once everybody has cast their vote or the time has ended, there will be canvassing of the votes. -
Example: USC Union and then the other choice is NO UNION. The EEs are allowed to choose. You simply write there a check or a cross mark. You do not need to sign or put your face there. So there is such thing as a spoiled ballot.
-
What is the Double Majority Rule? This means that to have a valid election, majority of the eligible voters must cast their vote. So if there are 100 eligible voters, then at least 50+1 must cast their vote to have a valid election. For the union that is trying to represent the employees, to be certified as the exclusive bargaining agent (to win the election), the law says that it must obtain the majority of the valid votes cast.
-
In determining on whether or not there is a valid election, you will include even spoiled ballots. However, in determining whether the union will be certified as the exclusive bargaining agent, you have to exclude the spoiled ballots because these are not valid votes cast.
-
WARNING: You have to watch out for the figures particularly on this topic (for a valid election, for the union to be the exclusive bargaining agent)
-
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 Officer shall declare a failure of election in the minutes of the election proceedings
-
A failure of election shall not bar the filing of a motion for the immediate holding of another certification or consent election within 6 months from date of declaration of failure of election
14. If there is a protest, it must be recorded in the minutes of the election. -
If you notice an irregularity in the conduct of the certification election or there is a violation of DO 40-03 as amended, you have to inform the election officer that you are registering your protest.
-
Ex. There was no posting of notice of election or an abrupt stoppage of the casting of votes like instead of 8-12, they cut it off until 10 therefore unduly depriving the other voters to cast their vote so that is an irregularity in the conduct of the election which will be the subject of the protest.
-
You have to perfect your protest within 5 days from the date of the election by way of a written protest, otherwise you are deemed to have waived your protest.
-
What is the purpose of a protest? o
If there is a protest and the result of the protest will materially affect the result of the election, the election officer will not announce the winner. He will endorse the case to the Med-Arbiter for the Med-Arbiter to rule on the protest instead of proclaiming the winner.
o
If there is no protest, the election officer will now announce the winner in the certification election. And he will endorse that to the Med-Arbiter for the issuance of an order officially proclaiming the winner.
15. Results of the Election -
Do not confuse with Order of Election.
-
The Results of the Election as determined by the Med-Arbiter may be appealed to the SOLE. (Art. 259, LC)
-
Even if you appeal to the SOLE and the SOLE affirms the decision of the Med-Arbiter, in the absence of a restraining order, then the parties are now allowed to negotiate the collective bargaining agreement.
Once you have been certified, the next step is to exercise the right to negotiate a CBA. Under the law, only a certified bargaining union is allowed to exercise the right to collectively bargain. If you have not been certified it means that you did not win the elections and that you do not have the confidence of the majority of the workers, thus you cannot exercise the right to collective bargaining. University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Relations Compilation The procedure in an ORGANIZED ESTABLISHMENT is more or less the same. The only difference is the ground for denial of the petition because there are more grounds to deny compared to the unorganized establishment. CONSENT ELECTION – refers to 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 voluntarily agreed upon by the parties, with or without the intervention of the DOLE. 1)
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 of the preliminary conference signed by the parties and attested by the Med-Arbiter.
2)
It shall constitute a bar to the holding of a certification election for (1) year from the holding of such consent election.
RUN-OFF ELECTION – refers to an election between the labor unions receiving the (2) highest number of votes in a certification or consent election with (3) or more choices, where such certified or consent election results in none of the (3) or more choices receiving the majority of the valid votes cast; provided that the total number of votes for all contending unions is at least (50%) of the number of votes cast. Note: “NO UNION” shall not be a choice in the run-off election.
PRINCIPLE OF PRECLUSION OR COLLATERAL ATTACK Under the doctrine of conclusiveness of judgment, which is also known as "preclusion of issues" or "collateral estoppel," issues actually and directly resolved in a former suit cannot again be raised in any future case between the same parties involving a different cause of action.||| (Tan v. Court of Appeals, G.R. No. 142401, August 20, 2001)
INCLUSION-EXCLUSION PROCEEDINGS 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.
CONTRACT BAR RULE The Contract Bar Rule is a rule that a valid and existing collective bargaining agreement is a bar to a petition for certification election. Hence an employer may successfully oppose a petition for certification election if it violates this Rule.
EXCEPTIONS TO THE CONTRACT BAR RULE However, there are a number of exceptions to this Rule, namely: (a) if the petition is made within 60 days before the expiration of the CBA, known as the "freedom period" (b) if the CBA is defective or inadequate in substance, as whei it does not fulfill the legal requirements of providing for a grievance machinery or voluntary arbitration; and (c) if it has not fulfilled the formal requirements for registration with the Bureau or the Regional Office of the DOLE, which requirements are held to be mandatory (Asso. Trade Union vs. Trajano, 162 SCRA University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Relations Compilation 318) in any of these exceptional cases, the Contract Bar Rule will not apply and the employer would have no ground to contest the certification election. OTHER RULES BARRING CERTIFICATION ELECTIONS. The Contract Bar Rule is not the only instance where petitions for certification election may be barred. There are other applicable rules whereby such petitions will not be entertained. To summarize, no certification election may be held in the following cases: (a) During the existence of a collective bargaining agreement, except within the freedom period (the Contract Bar Rule); (b) Within one year from the date of issuance of a final certification result (Bk. V, Sec. 3, OR); and (c) Where a bargaining deadlock to "which an incumbent or certified bargaining agent is a party has been submitted to conciliation or arbitration, or has become the subject of a valid notice of strike or lockout (Id.). This is known as the Deadlock Bar Rule. Its principal purpose is to ensure stability in the relationship of workers and management. (NACUSIP vs. ajano, 208 SCRA 18) Basic to the contract bar rule is the proposition that the delay of the right to select representatives can be justified only where stability is deemed paramount. Excepted from the contract bar rule are certain types of contracts which do not foster industrial stability, such as contracts where the identity of the representative is in doubt. Any stability derived from such contracts must be subordinated to the employees' freedom of choice because it does not establish the type of industrial peace contemplated by law.||| (Firestone Tire & Rubber Employees Union v. Estrella, G.R. Nos. L-45513-14, January 06, 1978) The contract bar rule does not call for application where the renewed collective bargaining agreement was negotiated and concluded prematurely, i.e., without waiting for the statutory period of sixty days prior to its termination and the petition for certification election was filed within the period allowed by law, i.e., fifteen days before the contract would have expired||| (General Textiles Allied Workers Ass'n v. Director of Bureau of Labor Relations, G.R. No. L-45719, July 31, 1978)
DEADLOCK BAR RULE The Deadlock Bar Rule simply provides that a petition for certification election can only be entertained if there is no pending bargaining deadlock submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout. The principal purpose is to ensure stability in the relationship of the workers and the management.||| (National Congress of Unions in the Sugar Industry of the Phil. v. Trajano, G.R. No. 67485, April 10, 1992)
CERTIFICATION YEAR RULE Section 3, Rule V of Department Order No. 9, or commonly known as the 'Certification-Year Rule', which means that no certification election should be entertained within one (1) year from the time the Election Officer issued the Certification Order.||| (DHL-URFA-FFW v. Buklod ng Manggagawa ng DHL Phil. Corp., G.R. No. 152094, July 22, 2004)
VALID ELECTION AND DOUBLE MAJORITY RULE It is well-settled that under the so-called "double majority rule", for there to be a valid certification election, majority of the bargaining unit must have voted AND the winning union must have garnered majority of the valid votes cast.||| (NUWHRAIN-Manila Pavilion Hotel Chapter v. Secretary of Labor and Employment, G.R. No. 181531, July 31, 2009)
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Societas Spectra Legis Labor Relations Compilation FAILURE OF ELECTION RULE IX (Conduct of Certification Election) SECTION 17. 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 Officer shall declare a failure of election in the minutes of the election proceedings. SECTION 18. 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. Private respondent also alleged that the certification election was marred by massive fraud and irregularities and that out of 1,692 eligible voters, 913, representing 54% of the rank-and-file workers of private respondent, were not able to vote, resulting in a failure of election. (NATIONAL FEDERATION OF LABOR (NFL), Petitioner, vs. THE SECRETARY OF LABOR OF THE REPUBLIC OF THE PHILIPPINES AND HIJO PLANTATION INC. (HPI), Respondents.)
RUN-OFF ELECTIONS RULE X RUN-OFF ELECTIONS
SECTION 1. 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. SEIDAC "No Union" shall not be a choice in the run-off 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. SECTION 2. Qualification of Voters . — The same voters' list used in the certification election shall be used in the run-off election. The ballots in the runoff 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. A run-off election refers to an election between the labor unions receiving the two (2) highest number of votes in a certification or consent election with three (3) or more choices, where such a certified or consent election results in none of the three (3) or more choices receiving the majority of the valid votes cast; provided that the total number of votes for all contending unions is at least fifty percent (50%) of the number of votes cast.||| (NUWHRAIN-Manila Pavilion Hotel Chapter v. Secretary of Labor and Employment, G.R. No. 181531, July 31, 2009)
PRINCIPLE OF FAIR REPRESENTATION An employers' organization must not act in a manner that is arbitrary, discriminatory or in bad faith in representing any of the employers in the group appropriate for collective bargaining.
SCOPE: BARGAINING UNIT BARGAINING UNIT – refers to a group of employees sharing mutual interests within a given employer unit, comprised of all or less than all of the entire body of employees in the employer unit or any specific occupational or geographical grouping within such employer unit. (DO 40-03)
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Societas Spectra Legis Labor Relations Compilation JURISDICTIONAL PRECONDITIONS TO COLLECTIVE BARGAINING 1.) Possession of the status of majority representation of the employee’s representative; 2.) Proof of majority representation; 3.) A demand to bargain. What is the right to collective bargaining? -
The right to of the EEs through the certified bargaining agent to negotiate with the ER in order to reach agreements regarding the terms and conditions of employment.
Can this right be exercised by any labor organization even if it has not been certified as the exclusive bargaining agent? -
No
DUTY TO BARGAIN WITH OR WITHOUT A CBA Article 252. Meaning of duty to bargain collectively. The duty to bargain collectively means the performance of a mutual 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 bu t such duty does not compel any party to agree to a proposal or to make any concession. It is the mutual obligation of the employer and the employee’s majority union to meet and convene for the purpose of: 1) negotiating an agreement on the subjects of: a. wages; b. hours of work; and c. all other terms and conditions of employment including proposals for adjusting grievances or questions arising under such agreement; and 2) executing a contract incorporating such agreement if requested by either party. Kind of Compliance: (1) prompt; (2) expeditious; and (3) in good faith. Limitations of the duty are that it does not compel any party: (1) to agree to a proposal; or (2) to make a concession. WITHOUT COLLECTIVE BARGAINING AGREEMENT; Art.251 LC Article 251. Duty to bargain collectively in the absence of collective bargaining agreements. In the absence of an agreement or other voluntary arrangement providing for a more expeditious manner of collective bargaining, it shall be the duty of employer and the representatives of the employees to bargain collectively in accordance with the provisions of this Code. WITH COLLECTIVE BARGAINING AGREEMENT; Art.253 LC Article 253. Duty to bargain collectively when there exists a collective bargaining agreement. 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. However, 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 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. University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Relations Compilation The duty to bargain means all of the above and, additionally: 3) not to terminate or modify the CBA during its lifetime. - But (60) days before the CBA expires, either party may notify the other, in writing that it desires to terminate or modify the negotiable provisions of the agreement. During the 60-day period and until a new agreement is reached, the CBA remains in full force and effect and the parties are duty In what instance may the CBA be modified? -
Within the freedom period (60 days before the CBA expires)
Is that (the right to modify the CBA) part of the right to collective bargaining? -
Yes
-
Collective Bargaining Agreement – refers to the contract between a legitimate labor union and the employer concerning wages, hours of work, and all other terms and conditions of employment in a bargaining unit (IRR)
How is this started? -
Notify and submit the proposed CBA - Union must send to the ER that they wish to have a CBA
-
ER must take into account the proposals of the union, may submit counter proposals within 10 days
-
Parties will sit down and negotiate a CBA
Article 250. Procedure in collective bargaining. The following procedures shall be observed in collective bargaining: 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; 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. 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; 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 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) What are the two types of provisions usually included in the CBA? -
Political and non-political provisions OR
-
Economic and non-economic provisions which refers to political provisions
FOUR (4) FORMS OF VIOLATION OF DUTY TO BARGAIN Amounts to ULP; is committed in the following forms: 1.
failure or refusal to meet and convene;
2.
evading the purposes of bargaining;
3.
not observing good faith in bargaining; and/or
4.
grossly violating the economic provisions of the CBA.
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Societas Spectra Legis Labor Relations Compilation RIGHT TO COLLECTIVE BARGAINING SINGLE ENTERPRISE BARGAINING/DECENTRALIZED BARGAINING WHEN AVAILABLE: Section 3. 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. Section 4. 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. PROCEDURE: - 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 deem appropriate and necessary for the early termination of their negotiations; - they shall: 1) name their respective representatives; 2) schedule the number and frequency of meetings; 3) agree on wages, benefits and other terms and conditions of work for all employees covered in the bargaining unit.
MULTI-EMPLOYER BARGAINING/INDUSTRY-WIDE BARGAINING SECTION 5. 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: (a) only legitimate labor unions who are incumbent exclusive bargaining agents may participate and negotiate in multiemployer bargaining; (b) only employers with counterpart legitimate labor unions who are incumbent bargaining agents may participate and negotiate in multi-employer bargaining; and SEID (c) only those legitimate labor unions who pertain to employer units who consent to multi-employer bargaining may participate in multi-employer bargaining. SECTION 6. 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 multiemployer 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. University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Relations Compilation (b) The legitimate labor unions who desire to bargain with multiemployers 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 multi-employer 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 multiemployer bargaining; 2) their corresponding legitimate labor organizations; 3) the fact that each corresponding legitimate union is any incumbent exclusive bargaining agent; 4) the duration of the current collective bargaining agreement, if any, entered into by each employer with the counterpart legitimate labor union. WHEN AVAILABLE: - when a legitimate labor union(s) and employers may agree in writing to come together for the purpose of collective bargaining, provided: 1) only legitimate labor unions who are incumbent exclusive bargaining agents may participate and negotiate in multiemployer bargaining; 2) only employers with counterpart legitimate labor unions who are incumbent bargaining agents may participate and negotiate in multi-employer bargaining; and 3) only those legitimate labor unions who pertain to employer units who consent to multi-employer bargaining may participate in multi-employer bargaining.
PROCEDURE: (1) Legitimate labor unions who desire to negotiate with their employers collectively shall execute a written agreement among themselves, which shall contain the following: a.
the names of the labor unions who desire to avail of multi-employer bargaining;
b.
each labor union in the employer unit;
c.
the fact that each of the labor unions are the incumbent exclusive bargaining agent of their respective employer units;
d.
the duration of the collective bargaining agreements, if any, entered into by each labor union with their respective employers.
Note: Legitimate labor unions who are members of the same registered federation, national, or industry union are exempt from execution of this written agreement. (2) 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 multi-employer bargaining shall send a written notice to each of their counterpart legitimate labor unions indicating their desire to engage in multi-employer bargaining and shall indicate the following: a.
the names of the employers who desire to avail of multi-employer bargaining;
b.
their corresponding legitimate labor organizations;
c.
the fact that each corresponding legitimate union is any incumbent exclusive bargaining agent;
d.
the duration of the current CBA, if any, entered into by each employer with the counterpart legitimate labor union.
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Societas Spectra Legis Labor Relations Compilation (3) 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. Note: Negotiations may commence only with regard to respective employers and labor unions who consent to participate in multi-employer bargaining. (4) During the course of the negotiations, consenting employers and the corresponding legitimate labor unions shall discuss and agree on the following: a.
the manner by which negotiations shall proceed;
b.
the scope and coverage of the negotiations and the agreement; and
c.
where appropriate, the effect of the negotiations on current agreements or conditions of employment among the parties
WHEN TO BARGAIN - if the jurisdictional preconditions are present, the collective bargaining should begin within the (12) months following the determination and certification of the employees’ exclusive bargaining representative (CERTIFICATION YEAR).
CONTENTS OF CBA The subjects of provisions commonly found in collective bargaining agreements are: 1.
Enumeration or reservation of management rights
2.
Union recognition and security
3.
Wage and fringe benefits and their administration
4.
Physical working conditions
5.
Selected personnel management and plant operation practices
6.
Grievance and arbitration
7.
Duration of contract
8.
Programs to promote drug-free workplace (required under RA 9165)
GRIEVANCE MACHINERY – Article 260. Grievance machinery and voluntary arbitration. The parties to a Collective Bargaining Agreement shall include therein provisions that will ensure the mutual observance of its terms and conditions. They shall establish a machinery for the adjustment and resolution of grievances arising from the interpretation or implementation of their Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies. All grievances submitted to the grievance machinery which are not settled within seven (7) calendar days from the date of its submission shall automatically be referred to voluntary arbitration prescribed in the Collective Bargaining Agreement. For this purpose, parties to a Collective Bargaining Agreement shall name and designate in advance a Voluntary Arbitrator or panel of Voluntary Arbitrators, or include in the agreement a procedure for the selection of such Voluntary Arbitrator or panel of Voluntary Arbitrators, preferably from the listing of qualified Voluntary Arbitrators duly accredited by the Board. In case the parties fail to select a Voluntary Arbitrator or panel of Voluntary Arbitrators, the Board shall designate the Voluntary Arbitrator or panel of Voluntary Arbitrators, as may be necessary, pursuant to the selection procedure agreed upon in the Collective Bargaining Agreement, which shall act with the same force and effect as if the Arbitrator or panel of Arbitrators has been selected by the parties as described above.
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Societas Spectra Legis Labor Relations Compilation RULE XIX GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION Section 1. Establishment of grievance machinery. - The parties to a collective bargaining agreement shall establish a machinery for the expeditious resolution of grievances arising from the interpretation or implementation of the collective bargaining agreement and those arising from the interpretation or enforcement of company personnel policies. Unresolved grievances will be referred to voluntary arbitration and for this purpose, parties to a collective bargaining agreement shall name and designate in advance a voluntary arbitrator or panel of voluntary arbitrators, or include in the agreement a procedure for the selection of such voluntary arbitrator or panel of voluntary arbitrators, preferably from the listing of qualified voluntary arbitrators duly accredited by the Board. In the absence of applicable provision in the collective bargaining agreement, a grievance committee shall be created within ten (10) days from signing of the collective bargaining agreement. The committee shall be composed of at least two (2) representatives each from the members of the bargaining unit and the employer, unless otherwise agreed upon by the parties. The representatives from among the members of the bargaining unit shall be designated by the union. (IRR) What are company personnel polices? -
guiding principles stated in long and broad terms expressing the philosophies and beliefs of the management concerning the personnel
How is a grievance resolved under the IRR? -
Rule XIX section 2
Section 2. Procedure in handling grievances. - In the absence of a specific provision in the collective bargaining agreement or existing company practice prescribing for the procedures in handling grievance, the following shall apply: (a) An employee shall present this grievance or complaint orally or in writing to the shop steward. Upon receipt thereof, the shop steward shall verify the facts and determine whether or not the grievance is valid. (b) If the grievance is valid, the shop steward shall immediately bring the complaint to the employee's immediate supervisor. The shop steward, the employee and his immediate supervisor shall exert efforts to settle the grievance at their level. (c) If no settlement is reached, the grievance shall be referred to the grievance committee which shall have ten (10) days to decide the case. Where the issue involves or arises from the interpretation or implementation of a provision in the collective bargaining agreement, or from any order, memorandum, circular or assignment issued by the appropriate authority in the establishment, and such issue cannot be resolved at the level of the shop steward or the supervisor, the same may be referred immediately to the grievance committee. Purpose of grievance machinery in the CBA- for settlement of interpretation and implementation of CBA and company personnel policies -
If NO GM that is provided in LC, it will be subject to compulsory arbitration which is discouraged
-
You have to exhaust the remedy of Grievance machinery
-
The aggrieved party will initiate the grievance machinery
-
EE brings the grievance to the shop steward o
-
If cannot be resolved by shop steward, indorse to the grievance committee o
-
Shop steward – one who facilitates the grievances of the union members against the ER
Composition of the GM: at least 2 representatives each from the members of the bargaining unit and the ER
If grievance machinery cannot resolve -> Voluntary Arbitrator
If the parties fail to incorporate the creation of grievance machinery, will the grievance automatically go to the Voluntary Arbitrator? -
NO. As soon as the grievance arises, the parties are required to create a grievance machinery or committee.
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Societas Spectra Legis Labor Relations Compilation Does the Labor Code require a particular setup of the grievance machinery and voluntary arbitration? -
No, the LC is silent. The law leaves it upon the parties to determine the machinery and determine whether the grievance will be tried by a single arbitrator or a panel of arbitrators.
If there is a grievance machinery, can the parties bypass such machinery? Article 217 (c) Cases arising from the interpretation of collective bargaining agreements and those arising from the interpretation or enforcement of company personnel policies shall be disposed of by the Labor Arbiter by referring the same to the grievance machinery and voluntary arbitration as may be provided in said agreements -
The complaint shall be referred by the Labor Arbiter to the grievance machinery.
Is there a counterpart provision of Article 217 (c) in the IRR? Rule XIX, Section 4 SECTION 4. Jurisdiction of Voluntary Arbitrator or Panel of Voluntary Arbitrators. — The voluntary arbitrator or panel of voluntary arbitrators shall have exclusive and original jurisdiction to hear and decide all grievances arising from the implementation or interpretation of the collective bargaining agreements and those arising from the interpretation or enforcement of company personnel policies which remain unresolved after exhaustion of the grievance procedure. They shall also have exclusive and original jurisdiction, to hear and decide wage distortion issues arising from the application of any wage orders in organized establishments, as well as unresolved grievances arising from the interpretation and implementation of the productivity incentive programs under R.A. 6971. The National Labor Relations Commission, its regional branches and Regional Directors of the Department of Labor and Employment shall not entertain disputes, grievances or matters under the exclusive and original jurisdiction of the voluntary arbitrator or panel of voluntary arbitrators and shall immediately dispose and refer the same to the appropriate grievance machinery or voluntary arbitration provided in the collective bargaining agreement. Upon agreement of the parties, any other labor dispute may be submitted to a voluntary arbitrator or panel of voluntary arbitrators. Before or at any stage of the compulsory arbitration process, the parties may opt to submit their dispute to voluntary arbitration. What is within the jurisdiction of the Voluntary Arbitrator? Rule IV, Section 1 1.
All unresolved grievances arising from the interpretation or implementation of the collective bargaining agreement.
2.
All unresolved grievances arising from the implementation or enforcement of company personnel policies.
3.
All wage distortion issues arising from the application of any wage orders in organized establishments
4.
All unresolved grievances arising from the interpretation and implementation of the productivity incentive programs under RA 6971.
What is the nature of the power of the VA? -
Quasi-judicial
If the VA renders a decision, when does the decision become final and executory? -
After 10 calendar days
Is an Motion for Reconsideration from the decision of the Voluntary Arbitrator allowed? -
YES. In the case of Teng vs Pahagac the Court held that Article 262-A of the LC does not prohibit the filing of an MR.
-
There is NO appeal for the decision of voluntary arbitrator
What is the remedy from the decision of the VA? -
File an Motion for Reconsideration or file a petition for review under Rule 43 with the CA (Rule 43 for quasi-judicial agencies)
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Societas Spectra Legis Labor Relations Compilation How many days? -
15 days from receipt or notice of order
From CA to SC via Rule 65(?) If one of the parties do not undergo Grievance Machinery, is it Unfair Labor Practice? NO. Article 261. Jurisdiction of Voluntary Arbitrators or panel of Voluntary Arbitrators. The Voluntary Arbitrator or panel of Voluntary Arbitrators shall have original and exclusive jurisdiction to hear and decide all unresolved grievances arising from the interpretation or implementation of the Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies referred to in the immediately preceding article. Accordingly, violations of a Collective Bargaining Agreement, except those which are gross in character, shall no longer be treated as unfair labor practice and shall be resolved as grievances under the Collective Bargaining Agreement. For purposes of this article, gross violations of Collective Bargaining Agreement shall mean flagrant and/or malicious refusal to comply with the economic provisions of such agreement.
UNION SECURITY CLAUSE A ‘union security clause’ is a stipulation in the CBA whereby the management recognizes that the membership of employees in the union which negotiated said agreement should be maintained and continued as a condition for employment or retention of employment. The obvious purpose is to safeguard and ensure the continued existence of the union. Union security is a generic term that covers: 1. 2. 3. -
4. 5. 6. 7. 8.
Closed shop agreement ER will only hire members of a CBU and must remain a member for continued employment Considered as the most prized achievement of unionism because there is no choice on the part of any person who wishes to be employed but to become a member of the union. Maintenance of membership agreement No EE is compelled to join the union but all present or future members must as condition of employment remain in good standing in the union. Goes together with the Union Shop in one CBA. Union shop agreement ER may hire persons who are not yet members of a Collective Bargaining Unit however to continue with their employment they have to become members after a certain period. Who will benefit? The CBU because it will add to the membership. The more members the stronger the collective bargaining power. Adds members and compulsory dues to support the existence of the CBU. Modified union shop agreement Exclusive bargaining agreement Bargaining for members only agreement Agency shop agreement Preferential hiring agreement
Do these clauses constitute restriction to right to freedom of association? -
No.
Are these clauses authorized by law? -
Yes. Article 248 (e) – “Nothing in this code or in any other law shall stop the parties from requiring membership in a recognized collective bargaining agent as condition for employment, except those EEs who are already members of another union at the time of the signing of the CBA...”
Is it Constitutional to force one to be a member? -
Yes, under the Police Power of the state
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Societas Spectra Legis Labor Relations Compilation Employees exempted from union security: 1.
Members of religious sect which prohibits membership in labor organizations
2.
EEs already in the service and already members of the unions other than the majority union at the time of the signing of the CBA
3.
Supervisors ineligible to join the majority union because of membership therein of members under their supervision
4.
Those excluded by express terms of the agreement
5.
Managerial employees
6.
Confidential employees
DRUG-FREE WORKPLACE Republic Act No. 9165 Comprehensive Dangerous Drugs Act of 2002, June 07, 2002 Article V. Promotion of a National Drug-Free Workplace Program with the Participation of Private and Labor Sectors and the Department of Labor and Employment Section 47. Drug-Free Workplace. - It is deemed a policy of the State to promote drug-free workplaces using a tripartite approach. With the assistance of the Board, the Department of Labor and Employment (DOLE) shall develop, promote and implement a national drug abuse prevention program in the workplace to be adopted by private companies with ten (10) or more employees. Such program shall include the mandatory drafting and adoption of company policies against drug use in the workplace in close consultation and coordination with the DOLE, labor and employer organizations, human resource development managers and other such private sector organizations. Section 48. Guidelines for the National Drug-Free Workplace Program. - The Board and the DOLE shall formulate the necessary guidelines for the implementation of the national drug-free workplace program. The amount necessary for the implementation of which shall be included in the annual General Appropriations Act.
Article VI.
Participation of the Private and Labor Sectors in the Enforcement of this Act
Section 49. Labor Organizations and the Private Sector. All labor unions, federations, associations, or organizations in cooperation with the respective private sector partners shall include in their collective bargaining or any similar agreements, joint continuing programs and information campaigns for the laborers similar to the programs provided under Section 47 of this Act with the end in view of achieving a drug free workplace. Section 50. Government Assistance. The labor sector and the respective partners may, in pursuit of the programs mentioned in the preceding Section, secure the technical assistance, such as but not limited to, seminars and information dissemination campaigns of the appropriate government and law enforcement agencies. Is this provision on promoting a drug free workplace considered a company personnel policy? YES
MANDATORY SUBJECTS OF BARGAINING 1.
Provision on wage increases;
2.
Provision on grievance machinery and voluntary arbitration;
3.
A “no strike, no lockout” clause
Art. 252. Meaning of duty to bargain collectively. The duty to bargain collectively means the performance of a mutual 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. University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Relations Compilation ECONOMIC PROVISIONS -
Anything that has to do with wages, hour of work, etc.
If there is a CBA containing both economic and non economic provisions, would the violations of the CBA result to ULP? -
The violation must be gross.
What provision of the CBA is violated in order to constitute ULP? -
Economic provisions
Is there an obligation on either of the parties to agree to a party’s proposal? -
No, but they have to agree otherwise there will be bargaining deadlock
IMPASSE A point at which no further progress can be made. A situation that is so difficult that no progress can be made; a deadlock or a stalemate: i.e. reached an impasse in the negotiations.
BOULWARISM It is an unfair labor practice to make a proposal which is not subject to bargaining. In a US case, the employer’s “firm and final” offer, accompanied by a take-it-or-leave-it strategy, was presented through a barrage of publicity praising the “fairness” of the package and picturing the company (not the union) as the employees’ “true” representative. In effect, there was to be no bargaining and the union was rendered ineffective or irrelevant. The company dealt with the union through the employees rather than with the employees through the union. This strategy, called Boulwarism because if was first used by a Mr. Boulware, is construed by a US court as bad-faith bargaining, hence an unfair labor practice.
RATIFICATION OF CBA: WHEN NEEDED? -The agreement negotiated by the employees’ bargaining agent should be ratified or approved by the majority of all the workers in the bargaining unit, as provided under Article 231of the Labor Code. The ratification and the way to do it are mandatory. The CBA should be posted for at least five (5) days in two (2) conspicuous places in the establishment before ratification, to enable the workers to inform themselves of its provisions. Moreover, the CBA to be submitted to the DOLE should carry the sworn statement of the union secretary, attested to be the union president, that the CBA had been duly posted and ratified. There requirements are mandatory; non-compliance makes the CBA ineffective.
Art. 231. Registry of unions and file of collective bargaining agreements. The Bureau shall keep a registry of legitimate labor organizations. The Bureau shall also maintain a file of all collective bargaining agreements and other related agreements and records of settlement of labor disputes and copies of orders and decisions of voluntary arbitrators. The file shall be open and accessible to interested parties under conditions prescribed by the Secretary of Labor and Employment, provided that no specific information submitted in confidence shall be disclosed unless authorized by the Secretary, or when it is at issue in any judicial litigation, or when public interest or national security so requires. Within thirty (30) days from the execution of a Collective Bargaining Agreement, the parties shall submit copies of the same directly to the Bureau or the Regional Offices of the Department of Labor and Employment for registration, accompanied with verified proofs of its posting in two conspicuous places in the place of work and ratification by the majority of all the workers in the bargaining unit. The Bureau or Regional Offices shall act upon the application for registration of such Collective Bargaining Agreement within five (5) calendar days from receipt thereof. The Regional Offices shall furnish the Bureau with a copy of the Collective Bargaining Agreement within five (5) days from its submission. The Bureau or Regional Office shall assess the employer for every Collective Bargaining Agreement a registration fee of not less than one thousand pesos (P1,000.00) or in any other amount as may be deemed appropriate and necessary by the Secretary of
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Societas Spectra Legis Labor Relations Compilation Labor and Employment for the effective and efficient administration of the Voluntary Arbitration Program. Any amount collected under this provision shall accrue to the Special Voluntary Arbitration Fund. The Bureau shall also maintain a file and shall undertake or assist in the publication of all final decisions, orders and awards of the Secretary of Labor and Employment, Regional Directors and the Commission. (As amended by Section 15, Republic Act No. 6715, March 21, 1989)
RATIFICATION OF CBA: WHEN NOT NEEDED? -Ratification of the CBA by the employees in the bargaining unit is not needed when the CBA is a product of an arbitral award by appropriate government authority or a voluntary arbitrator. Does the CBA have to be ratified? -
Yes, by the majority of the members of the bargaining unit
Is CBA valid without ratification? -
Yes.
What is the purpose of ratification? -
If there is no ratification the CBA is unenforceable.
Does the Labor Code require the registration? -
Yes, Article 231 (as provided for in the preceding page), with the DOLE
Does the CBA need to be posted? -
Yes, in 2 conspicuous places
Upon payment of a proper fee, the DOLE will issue a certificate of registration What is the relevance of registration of CBA for purposes of certification election? -
Determine whether there are grounds for denial of petition of certification election
REGISTRATION OF CBA Section 1. Where to file. - Within thirty (30) days from execution of a collective bargaining agreement, the parties thereto shall submit two (2) duly signed copies of the agreement to the Regional Office which issued the certificate of registration/certificate of creation of chartered local of the labor union party to the agreement. Where the certificate of creation of the concerned chartered local was issued by the Bureau, the agreement shall be filed with the Regional Office which has jurisdiction over the place where it principally operates. Multi-employer collective bargaining agreements shall be filed with the Bureau. Section 2. Requirements for registration. - 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.
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Societas Spectra Legis Labor Relations Compilation -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. Art. 231 requires the registration within thirty (30) calendar days from the execution of the agreement. Multi-employer collective bargaining agreement shall be filed with the Bureau.
Requirements for Registration Sec. 2, Rule XVII, DO No. 40-03 provides: “The application for CBA registration shall be accompanied by the original and two (2) duplicate copies of the following documents which mush 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/s 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 agreement.”
TERM OF CBA: REPRESENTATION ASPECT RULE XVII SECTION 7. Term of Representation Status ; Contract Bar Rule . — The representation status of the incumbent exclusive bargaining agent which is a party to a duly registered collective bargaining agreement shall be for a term of five (5) years from the date of the effectivity of the collective bargaining agreement. No petition questioning the majority status of the incumbent exclusive bargaining agent or petition for certification election filed outside of the sixty-day period immediately preceding the expiry date of such five-year term shall be entertained by the Department. The five-year representation status acquired by an incumbent bargaining agent either through single enterprise collective bargaining or multi-employer bargaining shall not be affected by a subsequent collective bargaining agreement executed between the same bargaining agent and the employer during the same five-year period. A CBA lasts for FIVE (5) YEARS for the “representation aspect” and NOT MORE THAN THREE (3) YEARS for “all other provisions”. The “representation aspect” refers to the identity and majority status of the union that negotiated the CBA as the exclusive bargaining representative. “All other provisions” simply refers to the rest of the CBA, economic as well as non-economic, except representational, provisions. - all other provisions- term is left to the parties to agree; it is NOT uncommon for parties to fix it to 3 years but that is NOT the term provided by the law Representation aspect (sole and exclusive status of certified union): The term is 5 years which means that no petition questioning the majority status of the incumbent bargaining agent shall be entertained by DOLE and no certification election shall be conducted outside of the 60-day freedom period. All other provisions (which refer to both economic and non-economic provisions except representation): Shall be renegotiated not later than three (3) years after its execution. (Art 253-A) If there is NO petition filed within the freedom period the CBA will remain in full force; the employer must recognize the incumbent bargaining agent (Art. 256) Why does the law require such? So that there will be industrial stability Until when? Until such time that a petition shall be filed University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Relations Compilation Art. 253-A. Terms of a collective bargaining agreement. Any Collective Bargaining Agreement that the parties may enter into shall, insofar as the representation aspect is concerned, be for a term of five (5) years. No petition questioning the majority status of the incumbent bargaining agent shall be entertained and no certification election shall be conducted by the Department of Labor and Employment outside of the sixty-day period immediately before the date of expiry of such five-year term of the Collective Bargaining Agreement. All other provisions of the Collective Bargaining Agreement shall be renegotiated not later than three (3) years after its execution. Any agreement on such other provisions of the Collective Bargaining Agreement entered into within six (6) months from the date of expiry of the term of such other provisions as fixed in such Collective Bargaining Agreement, shall retroact to the day immediately following such date. If any such agreement is entered into beyond six months, the parties shall agree on the duration of retroactivity thereof. In case of a deadlock in the renegotiation of the Collective Bargaining Agreement, the parties may exercise their rights under this Code. (As amended by Section 21, Republic Act No. 6715, March 21, 1989)
RENEGOTIATION / RETROACTIVITY OF CBA If the CBA is the very first for the bargaining unit, the Code does not state any rule on the CBA’s effectivity date. The parties have to decide it for themselves. But if the ensuing CBA is renewal, modification or renegotiation of an expiring one, the Code offers a formula for the effectivity date. Art. 253-A provides that the ensuing agreement, if entered into within six (6) months from expiry of the old one, shall retroact to the date following such expiry date. For example, if the CBA expired on December 31 and the new one is concluded on, say, March 31, its effectivity date is January 1. If on the other hand, the new agreement is concluded after June 30, then the matter of retroaction and the possible retroactive date are left to the parties. The determining point is the date the parties agreed, not the date they signed. a. Rule involving CBAs concluded by the parties through negotiation (not concluded through arbitral award). 1. The collective bargaining agreement or other provisions of such agreement entered into within six (6) months from the date of expiry of the term of such other provisions as fixed in the collective bargaining agreement shall retroact to the day immediately following such date. 2. If any such agreement is entered into beyond six (6) months, the parties shall agree on the date of effectivity thereof. b. Rule involving CBAs concluded through arbitral awards by DOLE Secretary, NLRC or Voluntary Arbitrator (Jurisprudence varies). In case of arbitral awards, the retroactivity of the CBA provided under Article 253-A of the Labor Code (enumerated above) has no application. Thus, the Supreme Court ruled: In St. Luke's Medical Center, Inc. vs. Torres, *223 SCRA 779 (1993)+, the effectivity date was made retroactive to the date of the expiration of the previous CBA. In Pier 8 Arrastre and Stevedoring Services, Inc. vs. Roldan-Confesor, *241 SCRA 294, 307 (1995)+, the effective date of the new CBA should be the date the Secretary of Labor and Employment has resolved the labor dispute. In Manila Electric Company vs. Quisumbing, *G. R. No. 127598, January 27, 1999, 302 SCRA 173, 209+, the effectivity date was made prospective per its January 27, 1999 ruling. Later, per its February 22, 2000 ruling in the same case which was rendered upon motion for reconsideration, the effectivity of the CBA was made retroactive. But later, in its August 1, 2000 ruling which was rendered after a Motion for Partial Reconsideration was filed by Meralco, the Supreme Court finally changed the effectivity date thereof. It held that the arbitral award should retroact to the first day after the six-month period following the expiration of the last day of the CBA, i.e., from June 1, 1996 to May 31, 1998. LATEST RULING: In the case of LMG Chemicals Corporation vs. Secretary of DOLE, (G. R. No. 127422, April 17, 2001), the Supreme Court ruled that retroactivity of CBA in arbitral awards is subject to the discretion of the DOLE Secretary.
Hold-Over Principle In the absence of a new CBA, the parties must maintain the status quo and must continue in full force and effect the terms and conditions of the existing agreement until a new agreement is reached. (automatic renewal clause) Why are the parties allowed to set the applicability of the provisions which have been renegotiated? -
Because of the financial impact on the employer.; to prevent undue financial burden on the employer
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Societas Spectra Legis Labor Relations Compilation If parties cannot agree in the effectivity of the renegotiation? Submit themselves to voluntary arbitration Remedy when there is a deadlock? Right to engage in peaceful concerted activities including the right to strike
What are the remedies in case of CBA deadlock? In case of a deadlock in the negotiation or renegotiation of the collective bargaining agreement, the parties may exercise the following rights under the Labor Code: 1. Conciliation and mediation by the NCMB, DOLE. (Art. 228) 2. Declaration of a strike or lockout, as the case may be. (Art. 263) 3. Referral of case to compulsory or voluntary arbitration.(Art. 262)
SUBSTITUTIONARY DOCTRINE The principle of substitution, formulated by the National Labor Relations Board, counterpart of our Court of Industrial Relations, means that where there occurs a shift in employees' union allegiance after the execution of a collective bargaining contract with their employer, the employees can change their agent - the labor union, but the collective bargaining contract which is still subsisting, continues to bind the employees up to its expiration date. They may, however, bargain for the shortening of said expiration date. And the only consideration for the "substitutionary" doctrine is the employees' interest in the existing bargaining agreement; the agent's (Union's) interest never enters into the picture. The "Substitutionary doctrine" provides that the employees cannot revoke the validly executed collective bargaining contract with their employer by the simple expedient of changing their bargaining agent. The new agent must respect the contract. The employees, thru their new bargaining agent, cannot renege on the collective bargaining contract, except to negotiate with management for the shortening thereof. The "Substitutionary doctrine" cannot be invoked to support the claim that a newly certified collective bargaining agent automatically assumes all personal undertakings, such as the no-strike stipulation in this case, assumed by the deposed union.|||
RIGHT TO FINANCIAL STATEMENTS Art. 242. Rights of legitimate labor organizations. A legitimate labor organization shall have the right: (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; **To better equip the union in preparing for or in negotiating with the employer, the law (Art. 242 *c+) gives it the right to be furnished with the employer’s audited financial statements. There are four (4) points in time when the union may ask in writing for these statements: 1.
After the union has been recognized by the employer as sole bargaining representative of the employees in the bargaining unit; or
2.
After the union is certified by the DOLE as such sole bargaining representative; or
3.
Within the last 60 days of the life of the CBA; or
4.
During the collective bargaining negotiation.
The audited financial statements, including the balance sheet and the profit and loss statement, should be provided by the employer within 30 calendar days after receipt of the union’s request. Consequence if employer refuses to furnish the FS: constitutes ULP
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Societas Spectra Legis Labor Relations Compilation RIGHT TO PARTICIPATE IN POLICY AND DECISION MAKING PROCESS Art. 255. Exclusive bargaining representation and workers’ participation in policy and decision-making. The labor organization designated or selected by the majority of the employees in an appropriate collective bargaining unit shall be the exclusive representative of the employees in such unit for the purpose of collective bargaining. However, an individual employee or group of employees shall have the right at any time to present grievances to their employer. Any provision of law to the contrary notwithstanding, workers shall have the right, subject to such rules and regulations as the Secretary of Labor and Employment may promulgate, to participate in policy and decision-making processes of the establishment where they are employed insofar as said processes will directly affect their rights, benefits and welfare. For this purpose, workers and employers may form labor-management councils: Provided, That the representatives of the workers in such labor-management councils shall be elected by at least the majority of all employees in said establishment. (As amended by Section 22, Republic Act No. 6715, March 21, 1989) Only available on matters directly affecting the employees Labor Management Council- has no right to collective bargaining Areas handled by Labor Management Council: 1.
Discipline of employees
No requirement to register the LMC. How are representatives of LMC selected? Organized- collective bargaining union will nominate Unorganized- employees will vote for the member from the employees side Purpose of LMC compared to a Labor union: 1.
industrial peace and harmony between management and employees
PRINCIPLE OF CO-DETERMINATION The PRINCIPLE OF CO-DETERMINATION states that it is a joint responsibility of the employer and the employee to establish terms and conditions of employment. In establishing such terms and conditions of employment, the employer and the employee must take into consideration existing laws and regulations. The basis for the principle of codetermination is Paragraph 3, Section 3 of Art XIII of the Constitution which states, in part, that the State shall promote the principle of shared responsibility between workers and employers.
RIGHT TO ENGAGE IN PEACEFUL CONCERTED ACTIVITIES Art. 263. Strikes, picketing and lockouts. a. It is the policy of the State to encourage free trade unionism and free collective bargaining. b. Workers shall have the right to engage in concerted activities for purposes of collective bargaining or for their mutual benefit and protection. The right of legitimate labor organizations to strike and picket and of employers to lockout, consistent with the national interest, shall continue to be recognized and respected. However, no labor union may strike and no employer may declare a lockout on grounds involving inter-union and intra-union disputes. c. In case of bargaining deadlocks, the duly certified or recognized bargaining agent may file a notice of strike or the employer may file a notice of lockout with the Ministry at least 30 day before the intended date thereof. In cases of unfair labor practice, the period of notice shall be 15 days and in the absence of a duly certified or recognized bargaining agent, the notice of strike may be filed by any legitimate labor organization in behalf of its members. However, in case of dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws, which may constitute union busting, where the University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Relations Compilation existence of the union is threatened, the 15-day cooling-off period shall not apply and the union may take action immediately. (As amended by Executive Order No. 111, December 24, 1986) d. The notice must be in accordance with such implementing rules and regulations as the Minister of Labor and Employment may promulgate. e. During the cooling-off period, it shall be the duty of the Ministry to exert all efforts at mediation and conciliation to effect a voluntary settlement. Should the dispute remain unsettled until the lapse of the requisite number of days from the mandatory filing of the notice, the labor union may strike or the employer may declare a lockout. f.
A decision to declare a strike must be approved by a majority of the total union membership in the bargaining unit concerned, obtained by secret ballot in meetings or referenda called for that purpose. A decision to declare a lockout must be approved by a majority of the board of directors of the corporation or association or of the partners in a partnership, obtained by secret ballot in a meeting called for that purpose. The decision shall be valid for the duration of the dispute based on substantially the same grounds considered when the strike or lockout vote was taken. The Ministry may, at its own initiative or upon the request of any affected party, supervise the conduct of the secret balloting. In every case, the union or the employer shall furnish the Min istry the results of the voting at least seven days before the intended strike or lockout, subject to the cooling-off period herein provided. (As amended by Batas Pambansa Bilang 130, August 21, 1981 and further amended by Executive Order No. 111, December 24, 1986)
g. When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration. Such assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order. If one has already taken place at the time of assumption or certification, all striking or locked out employees shall immediately return-to-work and the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. The Secretary of Labor and Employment or the Commission may seek the assistance of law enforcement agencies to ensure compliance with this provision as well as with such orders as he may issue to enforce the same. In line with the national concern for and the highest respect accorded to the right of patients to life and health, strikes and lockouts in hospitals, clinics and similar medical institutions shall, to every extent possible, be avoided, and all serious efforts, not only by labor and management but government as well, be exhausted to substantially minimize, if not prevent, their adverse effects on such life and health, through the exercise, however legitimate, by labor of its right to strike and by management to lockout. In labor disputes adversely affecting the continued operation of such hospitals, clinics or medical institutions, it shall be the duty of the striking union or locking-out employer to provide and maintain an effective skeletal workforce of medical and other health personnel, whose movement and services shall be unhampered and unrestricted, as are necessary to insure the proper and adequate protection of the life and health of its patients, most especially emergency cases, for the duration of the strike or lockout. In such cases, therefore, the Secretary of Labor and Employment may immediately assume, within twenty four (24) hours from knowledge of the occurrence of such a strike or lockout, jurisdiction over the same or certify it to the Commission for compulsory arbitration. For this purpose, the contending parties are strictly enjoined to comply with such orders, prohibitions and/or injunctions as are issued by the Secretary of Labor and Employment or the Commission, under pain of immediate disciplinary action, including dismissal or loss of employment status or payment by the locking-out employer of backwages, damages and other affirmative relief, even criminal prosecution against either or both of them. The foregoing notwithstanding, the President of the Philippines shall not be precluded from determining the industries that, in his opinion, are indispensable to the national interest, and from intervening at any time and assuming jurisdiction over any such labor dispute in order to settle or terminate the same. h. Before or at any stage of the compulsory arbitration process, the parties may opt to submit their dispute to voluntary arbitration. i.
The Secretary of Labor and Employment, the Commission or the voluntary arbitrator shall decide or resolve the dispute, as the case may be. The decision of the President, the Secretary of Labor and Employment, the Commission or the voluntary arbitrator shall be final and executory ten (10) calendar days after receipt thereof by the parties. (As amended by Section 27, Republic Act No. 6715, March 21, 1989)
Right to engage in lawful concerted activities:
constitutional right of a labor organization
available to a legitimate labor organization which has not been certified or recognized bargaining union on ground of ULP
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Societas Spectra Legis Labor Relations Compilation If a certified or recognized bargaining union, may strike on grounds of: 1.
Unfair Labor Practices
2.
Bargaining deadlock
FORMS OF CONCERTED ACTIVITIES ON THE PART OF THE EMPLOYEES: 1. STRIKE -any temporary stoppage of work by the concerted action of the employees as a result of an industrial or labor dispute. (Art. 212 LC) - refers to any temporary stoppage of work by the concerted action of employees as a result of a labor or industrial dispute (IRR) It consists not only of concerted work stoppages but also slowdowns, mass leaves, sitdowns, attempts to damage, destroy or sabotage plant equipment and facilities and similar activities. 2. PICKETING -or “peaceful picketing” is the right of workers to peacefully march to and fro before an establishment involved in a labor dispute generally accompanied by the carrying and display of signs, placards and banners intended to inform the public about the dispute. There must be NO temporary stoppage of work(part of freedom of speech) - regulated by the labor code - if there is unlawful picketing found in art. 264 the employer’s remedy is to file a petition for injunction to the NLRC - life of preliminary injunction is 20 days NOT extendible - NLRC’s original jurisdiction – MR- Rule 65 to CA (special civil action)- Rule 45 to SC - no petition or permission needed for lawful picketing from NCMB - right to picket is NOT an absolute right - Can you do a lawful picketing even without a labor dispute?yes 3. BOYCOTT -the concerted refusal to patronize an employer’s goods or services and to persuade others to a like refusal.
ON THE PART OF THE EMPLOYER: 1. LOCKOUT -any temporary refusal of an employer to furnish work as a result of an industrial or labor dispute. (Art. 212, LC and IRR)
What is an industrial or labor dispute? An industrial or labor dispute includes any controversy or matter concerning terms and conditions of employment or the association or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.(Art. 212 of LC)
STRIKE AND LOCKOUT Right to Strike and Lockout The right to strike is a constitutional and legal right of the workers as employers have the right to lockout, all within the context of labor relations and collective bargaining. Subject to the enactment by Congress of amendments or a new law on labor relations, the provisions of existing laws shall govern the exercise of those rights. University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Relations Compilation CONSTITUTIONAL AND STATUTORY BASIS Constitutional Basis Section 3, Article XIII, 1987 Constitution Section 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth.
Statutory Basis See Article 263, Labor Code of the Philippines (PD 442) Art 263. Strikes, picketing, and lockouts. — (a) It is the policy of the State to encourage free trade unionism and free collective bargaining. "(b) Workers shall have the right to engage in concerted activities for purposes of collective bargaining or for their mutual benefit and protection. The right of lifetime labor organizations to strike and picket and of employers to lockout, consistent with the national interest, shall continue to be recognized and respected. However, no labor union may strike and no employer may declare a lockout on grounds involving inter-union and intra-union disputes. "(c) In cases of bargaining deadlocks, the certified or duly recognized bargaining representative may file a notice of strike or the employer may file a notice of lockout with the Ministry at least thirty (30) days before the intended date thereof. In cases of unfair labor practices, the period of notice shall be shortened to fifteen (15) days; and in the absence of a duly certified or recognized bargaining representative, the notice of strike may be filed by any legitimate labor organization in behalf of its members. acd "(d) The notice must be in accordance with such implementing rules and regulations as the Minister of Labor and Employment may promulgate. "(e) During the cooling-off period, it shall be the duty of the Ministry to exert all efforts at mediation and conciliation to effect a voluntary settlement. Should the dispute remain unsettled until the lapse of the requisite number of days from the mandatory filing of the notice, the labor union may strike or the employer may declare a lockout. "(f) A decision to declare a strike must be approved by at least two-thirds (2/3) of the total union membership in the bargaining unit concerned obtained by secret ballot in meetings or referenda. A decision to declare a lockout must be approved by at least two-thirds (2/3) of the board of directors of the employer corporation or association or of the partners in a partnership obtained by secret ballot in a meeting called for the purpose. The decision shall be valid for the duration of the dispute based on substantially the same grounds considered when the strike or lockout vote was taken. The Ministry may, at its own initiative or upon the request of any affected party, supervise the conduct of the secret balloting. In every case, the union or the employer shall furnish the Ministry the results of the voting at least seven (7) days before the intended strike or lockout, subject to the cooling-off period herein provided.||| (Amendments to Certain Articles of P.D. No. 442 (Labor Code), BATAS PAMBANSA BLG. 130 *1981+) (g) When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration. Such assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order. If one has already taken place at the time of assumption or certification, all striking or locked out employees shall immediately return to work and University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Relations Compilation the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. The Secretary of Labor and Employment or the Commission may seek the assistance of law enforcement agencies to ensure compliance with this provision as well as with such orders as he may issue to enforce the same. In line with the national concern for and the highest aspect accorded to the right of patients to life and health, strikes and lockouts in hospitals, clinics and similar medical institutions shall, to every extent possible, be avoided, and all serious efforts, not only by labor and management but government as well, be exhausted to substantially minimize, if not prevent their adverse effects on such life and health, through the exercise, however legitimate, by labor of its right to strike and by management to lockout. In labor disputes adversely affecting the continued operation of such hospitals, clinics, or medical institutions, it shall be the duty of the striking union or locking-out employer to provide and maintain an effective skeletal workforce of medical and other health personnel, whose movement and services shall be unhampered and unrestricted, as are necessary to ensure the proper and adequate protection of the life and health of its patients, most especially emergency cases, for the duration of the strike or lockout. In such cases, therefore, the Secretary ofLabor and Employment may immediately assume, within twenty four (24) hours from knowledge of the occurrence of such a strike or lockout, jurisdiction over the same or certify it to the Commission for compulsory arbitration. For this purpose, the contending parties are strictly enjoined to comply with such orders, prohibitions and/or injunctions as are issued by the Secretary of Labor and Employment or the Commission, under pain of immediate disciplinary action, including dismissal or loss of employment status or payment by the locking-out employer of backwages, damages and other affirmative relief, even criminal prosecution against either or both of them. The foregoing notwithstanding, the President of the Philippines shall not be precluded from determining the industries that, in his opinion, are indispensable to the national interest, and from intervening at any time and assuming jurisdiction over any labor dispute in such industries in order to settle or terminate the same. cd (i) The Secretary of Labor and Employment, the Commission or the voluntary arbitrator or panel of voluntary arbitrators shall decide or resolve the dispute within thirty (30) calendar days from the date of the assumption of jurisdiction or the certification or submission of the dispute, as the case may be. The decision of the President, the Secretary of Labor and Employment, the Commission or the voluntary arbitrator or panel of voluntary arbitrators shall be final and executory ten (10) calendar days after receipt thereof by the parties.||| (New Labor Relations Law, REPUBLIC ACT NO. 6715 *1989+)
KINDS OF STRIKE 1.
2.
3.
AS TO EXTENT a.
GENERAL STRIKE – extends over a whole community, province, state or country.
b.
LOCAL OR PARTICULAR STRIKE – one undertaken by workers in a particular enterprise, locality, or occupation.
AS TO THE NATURE OF THE ACT c.
STRIKE PROPER
d.
SIT-DOWN STRIKE – when a group of employees or others interested in obtaining a certain objective in a particular business establish themselves within the plant, stop its production and refuse access to the owners or to others desiring to work.
e.
PARTIAL OR QUICKIE STRIKE – intermittent, unannounced work stoppage, including slowdowns, unauthorized extension of rest periods, and walkouts for portions of a shift or for entire shifts.
AS TO THE DEGREE OF EMPLOYEE INTEREST f.
PRIMARY STRIKE – one declared by the employees who have a direct and immediate interest, whether economic or otherwise, in the subject of the dispute which exists between them and the employer.
g.
SECONDARY STRIKE – a coercive measure adopted by workers against an employer connected by product or employment with alleged unfair labor conditions or practices.
h.
SYMPATHETIC STRIKE – one in which the striking employees have no demands or grievances of their own, but strike for the purpose of directly or indirectly aiding others, without direct relation to the advancement of the interest of the strikers.
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Societas Spectra Legis Labor Relations Compilation 4.
AS TO NATURE OR PURPOSE OF EMPLOYEE INTEREST i.
ECONOMIC STRIKE – intended to force wage and other concessions from the employer which he is not required by law to grant.
j.
ULP STRIKE – called against the unfair labor practice of the employer.
CATEGORIES OF ILLEGAL STIKE 1.
Violation of a legal prohibition -it is illegal for government employees to stage a strike.
2.
Non-observance of procedural requirements -procedural requisites that must be observed are: filing of notice of strike, observance of cooling-off period, taking of strike vote, and observance of the seven-day strike-vote report period.
3.
Strike based on non-strikeable grounds -the Labor Code recognizes only 2 strikeable grounds: collective bargaining deadlock and unfair labor practice.
4.
The means employed are illegal. -use of threats, coercion or violence are illegal. -even if the purpose of a strike is valid, the strike may still be held invalid where the means employed are illegal. -however, where violence was committed on both sides during a strike, such violence cannot be a ground for declaring the strike as illegal.
6.
Strike after assumption of jurisdiction by the President or the Secretary of Labor or after certification or submission of the dispute to compulsory or voluntary arbitration.
7.
Violation of the agreement of the parties or the no strike / no lockout clause in the CBA.
NCMB MANUAL OF PROCEDURE FOR CONCILIATION AND PREVENTIVE MEDIATION (see annex below)
STRIKE Any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute.
FORM NOTICE OF STRIKE AND LOCKOUTS; CONTENTS Art. 263. Strikes, Picketing and Lockouts-xxx c) In case of bargaining deadlocks, the duly certified or recognized bargaining agent may file a notice of strike or the employer may file a notice of lockout with the Ministry at least 30 day before the intended date thereof. In cases of unfair labor practice, the period of notice shall be 15 days and in the absence of a duly certified or recognized bargaining agent, the notice of strike may be filed by any legitimate labor organization in behalf of its members. However, in case of dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws, which may constitute union busting, where the existence of the union is threatened, the 15-day cooling-off period shall not apply and the union may take action immediately. (As amended by Executive Order No. 111, December 24, 1986) SUMMARY: -
bargaining deadlock- at least 30 days before
-
unfair labor practice- 15 days
-
dismissal from employment of union officers w/c may constitute union busting- 15 day cooling off period will NOT apply and the union can take action immediately
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Societas Spectra Legis Labor Relations Compilation CONTENTS Section 8. Contents of notice. - The notice shall state, among others, the names and addresses of the employer and the union involved, the nature of the industry to which the employer belongs, the number of union members and of the workers in the bargaining unit, and such other relevant data as may facilitate the settlement of the dispute, such as a brief statement or enumeration of all pending labor disputes involving the same parties. In cases of bargaining deadlocks, the notice shall, as far as practicable, further state the unresolved issues in the bargaining negotiations and be accompanied by the written proposals of the union, the counter-proposals of the employer and the proof of a request for conference to settle the differences. In cases of unfair labor practices, the notice shall, as far as practicable, state the acts complained of and the efforts taken to resolve the dispute amicably. In case a notice does not conform with the requirements of this and the foregoing section/s, the regional branch of the Board shall inform the concerned party of such fact. a.
The names and addresses of the employer and the union involved;
b.
The nature of the industry to which the employer belongs;
c.
The number of union members in the bargaining unit;
d.
The number of workers in the bargaining unit;
e.
Such other relevant data as may facilitate the settlement of the dispute;
f.
The unresolved issues in the bargaining negotiations accompanied by the written proposals of the union, the counter-proposals of the employer and proof of a request for conference to settle the differences (collective bargaining deadlock);
g.
Acts complained of and the efforts taken to resolve the dispute amicably (ULP); (Sec.8, Rule XXII, Book V, Implementing Rules, as amended by D.O. 40-03)
WHERE TO FILE Regional branch of the NCMB having jurisdiction over the workplace of the union members.
WHO MAY FILE a.
any certified or duly recognized bargaining representative.
b.
If there is none, any legitimate labor organization (for ULP only)
Section 6. Who may declare a strike or lockout. - Any certified or duly recognized bargaining representative may declare a strike in cases of bargaining deadlocks and unfair labor practices. The employer may declare a lockout in the same cases. In the absence of a certified or duly recognized bargaining representative, any legitimate labor organization in the establishment may declare a strike but only on grounds of unfair labor practices.
GROUNDS FOR STRIKE AND LOCK-OUT a.
Bargaining deadlocks;
b.
ULP;
c.
Flagrant &/or malicious refusal to comply with the economic provisions of the collective bargaining agreement.—is unfair labor practice(Rule XXII Sec. 5 IRR)
Section 5. Grounds for strike or lockout. - A strike or lockout may be declared in cases of bargaining deadlocks and unfair labor practices. Violations of collective bargaining agreements, except flagrant and/or malicious refusal to comply with its economic provisions, shall not be considered unfair labor practice and shall not be strikeable. No strike or lockout may be declared on grounds involving interunion and intra-union disputes without first having filed a notice of strike or lockout or without the necessary strike or University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Relations Compilation lockout vote having been obtained and reported to the Board. Neither will a strike be declared after assumption of jurisdiction by the Secretary or after certification or submission of the dispute to compulsory or voluntary arbitration or during the pendency of cases involving the same grounds for the strike or lockout. REQUISITES OF A LAWFUL STRIKE: 1.
The ground must be due to bargaining deadlock and/or ULP.
2.
Notice of strike must be filed
3.
4.
5.
Where filed: appropriate regional branch of NCMB
Who files: duly registered legitimate labor union
Notice must be grounded on bargaining dreadlock and/or ULP
NCMB will issue a notice of conciliation and mediation conference
If one of the parties fail to appear in the conciliation and mediation conference the strike becomes illegal bec. Of failure to follow procedural requirements
There must be observance with the corresponding cooling off period.
Bargaining deadlock: 30 days
ULP: 15 days
Exception to the 15 day for ULP: If the ULP is due to union busting (cooling off period need not be observed)
Union busting - dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws and such dismissal threatens the existence of the union.
There must be a conduct of a strike vote
The strike vote report is submitted to the NCMB at least 7 days prior to the intended date of strike.
7-day strike ban or 7-day waiting period
Strike or lockout must be conducted in a lawful manner
What is the effect if there is no compliance with the requisites? -
Strike will be considered illegal
-
Article 264 (a), par 3 – Any worker whose employment has been terminated as a consequence of any unlawful lockout shall be entitled to reinstatement with full backwages. Any union officer who knowingly participates in an illegal strike and any worker union officer who knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment. xxx
How long should the strike be conducted? -
The law does not fix the duration of a strike or lockout.
Purpose of the cooling off period -
To give the parties time to explore the possibilities of resolving disagreements in order to avoid a strike
Purpose of the 7-day waiting period -
To serve as last effort in order to avoid a strike
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Societas Spectra Legis Labor Relations Compilation Conditions for strike vote to be valid -
Supported by majority of the union members
-
Conducted by notice to the NCMB at least 24 hours before the strike vote
-
Conduct strike vote in a meeting
-
Conducted by secret ballot
Who has the jurisdiction to declare that a strike is illegal? -
Labor Arbiter
VALIDITY OF "NO STRIKE" CLAUSE A no strike / no lockout clause in the CBA is VALID because parties may freely stipulate as long as such stipulation is not contrary to law, morals and public policy. It is applicable only to economic strikes. If the strike is founded on a ULP of the employer, a strike declared by the union cannot be considered a violation of the no strike clause.
STRIKEABLE ISSUES a.
bargaining deadlock
b.
unfair labor practice
NON-STRIKEABLE ISSUES a.
Intra-union disputes
b.
Inter-union disputes
c.
Issues submitted to arbitration
d.
Political provisions of the CBA
e.
Wage distortion
f.
Interpretation and implementation of the provisions of the CBA
NOTE: in the absence of strikeable issues, the labor dispute is converted into a Preventive Mediation Case. Preventive mediation case- refer to labor disputes which are the subject of a formal or informal request for conciliation and mediation assistance sought by either of both parties or upon the initiative of the board (IRR) Preventive mediation case – refers to the potential labor disputes which are the subject of a formal or informal request for conciliation and mediation assistance sought by either or both parties or upon the initiative of the NCMB to avoid the occurrence of actual labor disputes. Can a notice of strike be converted into a preventive mediation case? -
When the Notice of strike is dropped
Purpose of strike: to paralyze the operations of the company
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Societas Spectra Legis Labor Relations Compilation ASSUMPTION OF JURISDICITON/SEC./DOLE (ART. 263(G)) Art. 263 Strikes, Lockouts-xxxx When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration. Such assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order. If one has already taken place at the time of assumption or certification, all striking or locked out employees shall immediately return-to-work and the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. The Secretary of Labor and Employment or the Commission may seek the assistance of law enforcement agencies to ensure compliance with this provision as well as with such orders as he may issue to enforce the same. In line with the national concern for and the highest respect accorded to the right of patients to life and health, strikes and lockouts in hospitals, clinics and similar medical institutions shall, to every extent possible, be avoided, and all serious efforts, not only by labor and management but government as well, be exhausted to substantially minimize, if not prevent, their adverse effects on such life and health, through the exercise, however legitimate, by labor of its right to strike and by management to lockout. In labor disputes adversely affecting the continued operation of such hospitals, clinics or medical institutions, it shall be the duty of the striking union or locking-out employer to provide and maintain an effective skeletal workforce of medical and other health personnel, whose movement and services shall be unhampered and unrestricted, as are necessary to insure the proper and adequate protection of the life and health of its patients, most especially emergency cases, for the duration of the strike or lockout. In such cases, therefore, the Secretary of Labor and Employment may immediately assume, within twenty four (24) hours from knowledge of the occurrence of such a strike or lockout, jurisdiction over the same or certify it to the Commission for compulsory arbitration. For this purpose, the contending parties are strictly enjoined to comply with such orders, prohibitions and/or injunctions as are issued by the Secretary of Labor and Employment or the Commission, under pain of immediate disciplinary action, including dismissal or loss of employment status or payment by the locking-out employer of backwages, damages and other affirmative relief, even criminal prosecution against either or both of them. The foregoing notwithstanding, the President of the Philippines shall not be precluded from determining the industries that, in his opinion, are indispensable to the national interest, and from intervening at any time and assuming jurisdiction over any such labor dispute in order to settle or terminate the same.
DO-40-H-13, S. 2013, RULE XXII: CONCILIATION, STRIKES AND LOCKOUTS Section 15. Assumption by the Secretary of Labor and Employment – when a labor dispute causes or is likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same to the National Labor Relations Commission for compulsory arbitration, provided, that any of the following conditions is present: 1.
Both parties have requested the Secretary of Labor and Employment to assume jurisdiction over the labor dispute; or
2. After a conference called by the Office of the Secretary of Labor and Employment on the proprietary of its issuance, motu proprio or upon a request or petition by either parties to the labor dispute Such assumption shall have the effect of automatically enjoining an impending strike or lockout. If a strike/lockout has already taken place at the time of assumption, all striking or locked out employees and other employees subject of the notice of strike shall immediately return to work and the employer shall immediately resume operations and readmit all employees under the same terms and conditions prevailing before the strike or lockout. Notwithstanding the foregoing, parties to the case may agree at any time to submit the dispute to the Secretary of Labor or his/her duly accredited Voluntary Arbitrator or to a panel of Voluntary Arbitrators.
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Societas Spectra Legis Labor Relations Compilation NATURE OF POWER; SCOPE The discretion to assume jurisdiction may be exercised by the SOLE without the necessity of prior notice or hearing given to any of the parties disputants. The rationale for his primary assumption of jurisdiction can be justifiably rest on his own consideration of the exigency of the situation in relation to the national interest.
EFFECT OF ASSUMPTION Effects of assumption: a.
Such assumption shall have the effect of automatically enjoining an impending strike or lockout.
b.
If a strike/lockout has already taken place at the time of assumption, all striking or locked out employees and other employees subject of the notice of strike shall immediately return to work and the employer shall immediately resume operations and readmit all employees under the same terms and conditions prevailing before the strike or lockout.
What is the constitutional basis of the power of the SOLE to assume jurisdiction over labor disputes? -
Police power
What is the effect if the SOLE assumes jurisdiction by issuance of AJO assumption of jurisdiction order? -
EEs have to return to work while ERs have to admit EEs to the same terms and conditions of employment
If EEs refuse to return they shall be committing a prohibited act which is a ground for their dismissal. Based on analogous causes Can the ER comply by simply reinstating them in the payroll? -
No. Since it involves an industry indispensible to national interest. This is an exception to right to management prerogative. No option on the part of the employer than to admit them back to work
What industries are indispensible? Sec 16. Industries Indispensable to the National Interest. – for the guidance of the workers and employers in the filing of petition for assumption of jurisdiction, the following industries/services are hereby recognized as deemed indispensable to the national interest: c.
Hospital Sector;
d.
Electric power industry;
e.
Water supply services, to exclude small water supply service such as bottling and refilling stations;
f.
Air traffic control; and
g.
Such other industries as maybe recommended by the National Tripartite Industrial Peace Council
-
Hospitals, educational institutions, Transportation, Petroleum, Sugar, Shipping, Airline Companies, Telecomunication industries, Commerce, Pharmaceutical
-
Banking institutions (General Banking Law)
What is the effect if the SOLE assumes jurisdiction over an industry which is NOT indispensable to national interest? -
It is a void assumption.
-
Remedy: Petition for Certiorari under Rule 65 to the CA.
In what instances may the secretary of labor assume jurisdiction in an industry indispensible to national interest? 1.
If the parties agree
2.
After conference called by the office of SOLE
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Societas Spectra Legis Labor Relations Compilation Section 2. Exercise of assumption of jurisdiction or certification authority under Article 263 (g). For a valid exercise of assumption of jurisdiction authority, any of the following conditions must be present: h.
Both parties have requested the Secretary of Labor and Employment to assume jurisdiction over the labor dispute; or
i.
After a conference called by the Office of the Secretary of Labor and Employment on the property of the issuance of the Assumption or Certification Order, motu proprio or upon request; or petition by either party to the labor dispute. In the said conference the parties shall also be encouraged to amicably settle the dispute.
Is it required to have a skeletal workforce for hospitals? -
Yes.
What is the role of the PNP during strikes and lockouts? What are the specific acts prohibited? -
Article 264 (d)
-
No public official or EE, including officers and personnel of the New Armed Forces of the Philippines or the Integrated National Police, or armed person, shall bring in, introduce or escort in any manner, any individual who seeks to replace strikers in entering or leaving the premises of a strike area, or work in place of the strikers. The police force shall keep out of the picket lines unless actual violence or other criminal acts occur therein: Provided, that nothing herein shall be interpreted to prevent any public officer from taking any measure necessary to maintain peace and order, protect life and property, and/or enforce the law and legal order.
Does the law allow the filing of a criminal case against the strikers directly in the court? -
Yes. If they perform any of the prohibited acts.
APPEAL TO OFFICE OF THE PRESIDENT; WHEN ALLOWED & PROCEDURE A.O. NO. 2, S. 2011 SECTION 1.Period to Appeal. — Unless otherwise provided by special law, an appeal to the Office of the President shall be taken within fifteen (15) days from notice of the aggrieved party of the decision/resolution/order appealed from, or of the denial, in part or in whole, of a motion for reconsideration duly filed in accordance with the governing law of the department or agency concerned. SECTION 2.Appeal, How Taken. — The appeal shall be taken by filing a Notice of Appeal with the Office of the President, with proof of service of a copy thereof to the department or agency concerned and the affected parties, and payment of the appeal fee. SECTION 3.Appeal Fee. — The appellant shall pay to the Office of the President the appeal fee of Php1,500.00 within the same period for filing a Notice of Appeal under Section 1 hereof. For appeals of deportation orders of the Bureau of Immigration, the appeal fee is Php10,000.00. Pauper litigants, duly certified as such in accordance with the Rules of Court, shall be exempted from the payment of appeal fee. Exemption from payment of the lawful appeal fees may be granted by the Office of the President upon a verified motion setting forth valid grounds therefor. If the motion is denied, the appellant shall pay the appeal fee within fifteen (15) days from notice of the denial. SECTION 4.Transmittal of Record. — Within ten (10) days from receipt of a copy of the Notice of Appeal, the department or agency concerned shall transmit to the Office of the President the complete records of the case with each page consecutively numbered and initialled by the custodian of the records, together with a summary of proceedings thereon from the filing of the complaint or petition before the office of origin up to transmittal to the Office of the President in chronological order indicating the action taken, incidents resolved, and listing of all pleadings, motions, manifestations, annexes, exhibits and other papers or documents filed by the contending parties, the corresponding orders, resolutions and decisions, as required in Memorandum Circular (MC) No. 123 (s. 1991). SECTION 5.Perfection of Appeal. — The appeal shall be deemed perfected upon the filing of the Notice of Appeal, payment of the appeal fee, and the filing of the appeal memorandum. SECTION 6.Period to File Appeal Memorandum. — The appeal memorandum shall be filed within thirty (30) days from the date the Notice of Appeal is filed, with proof of service of a copy thereof to the department or agency concerned and the affected parties. SECTION 7.Appeal Memorandum. — The appeal memorandum shall be filed in three (3) copies and shall (a) contain the caption and docket number of the case as presented in the office of origin and the addresses of the parties; (b) indicate the specific material dates University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Relations Compilation showing that it is filed within the period prescribed in Section 1 hereof; (c) contain a concise statement of the facts and issues and the grounds relied upon for the appeal; and (d) be accompanied by a clearly legible duplicate original or a certified true copy of the decision/resolution/order being appealed. SECTION 8.Non-Compliance with Requirements. — The failure of the appellant to comply with any of the requirements regarding the payment of the appeal fee, proof of service of the appeal memorandum, and the contents of and the documents which should accompany the appeal memorandum shall be sufficient ground for the dismissal of the appeal. SECTION 9.Stay of Execution. — The execution of the decision/resolution/order appealed from is stayed upon the filing of the Notice of Appeal within the period prescribed herein, provided that the stay of execution shall not apply (a) where provided by special law, and (b) in decisions/resolutions/orders of the Department of Interior and Local Government pursuant to AO No. 23 (s. 1992), as amended. However, in all cases, at any time during the pendency of the appeal, the Office of the President may direct or stay the execution of the decision/resolution/order appealed from upon such terms and conditions as it may deem just and reasonable. With respect to decisions/resolutions/orders of the Housing and Land Use Regulatory Board, the appeal will stay the execution for a period of sixty (60) days from the date of the filing of a Notice of Appeal within the period set in Section 1, after which the decision/resolution/order shall be executory unless otherwise ordered by the Office of the President. SECTION 10.Action on Appeal. — The Office of the President may require the appellee to file a comment to the appeal memorandum within fifteen (15) days from notice, or dismiss the appeal if the Office of the President finds that (a) it has no jurisdiction, (b) the appeal is patently without merit, (c) the appeal is prosecuted manifestly for delay, or (d) the questions raised in the appeal are too unsubstantial to require consideration. SECTION 11.Comment. — The comment shall (a) point out insufficiencies or inaccuracies in appellant's statement of facts and issues and (b) state the reasons why the appeal should be denied or dismissed. A copy shall be served on the appellant and the department or agency concerned, with proof of service submitted to the Office of the President. SECTION 12.Submission for Resolution. — The appeal shall be deemed submitted for resolution upon receipt of the comment, unless the Office of the President directs otherwise. SECTION 13.Memorandum Decision. — In cases where the facts are in the main accepted by both parties and easily determinable, and there are no doctrinal complications involved that will require an extended discussion of the laws involved, the decision on appealed cases may be in the form of a memorandum decision. The memorandum decision shall adopt by reference the findings of fact and conclusions of law contained in the decision/resolution/order appealed from, either by attaching the same to the memorandum decision or by quoting the decision/resolution/order in the memorandum decision. SECTION 14.Finality of Decision. — Decisions/resolutions/orders of the Office of the President shall, except as otherwise provided for by special laws, become final after the lapse of fifteen (15) days from receipt of a copy thereof by the parties, unless a motion for reconsideration thereof is filed within such period. Only one motion for reconsideration by any one party shall be allowed and entertained, save in exceptionally meritorious cases. SECTION 15.Executory Nature of Decision. — Notwithstanding an appeal or petition for review of the decision/resolution/order ofthe Office of the President to the Court of Appeals or the Supreme Court, the decision/resolution/order of the Office of the President is executory and the records will be remanded to the department or agency where the case originated, unless the Court of Appeals orthe Supreme Court issues an order staying the execution of the decision/resolution/order. SECTION 16.Withdrawal of Appeal. — An appeal may be allowed to be withdrawn at any time prior to the promulgation of a decision/resolution/order of the Office of the President on the appeal, except when public interest is prejudiced thereby. Upon theapproval of the withdrawal of an appeal, the case shall stand as if no appeal had ever been taken. ||| (Prescribing Rules and Regulations Governing Appeals to the Office of the President of the Philippines, ADMINISTRATIVE ORDER NO. 22 [2011])
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Societas Spectra Legis Labor Relations Compilation PROHIBITED ACTIVITIES Art. 264, Labor Code a.) On the part of both the Employer & Employee – 1.
2.
Declaring a strike or lockout: 1.
without first having bargained collectively, OR
2.
without first filing the required notice, OR
3.
without first obtaining & reporting the necessary strike or lockout vote.
Declaring a strike or lockout: 1.
after assumption of jurisdiction by the President or the Secretary, OR
2.
after certification or submission of the dispute to compulsory or voluntary arbitration, OR
3.
during the pendency of cases involving the same grounds for the strike/lockout.
b.) On the part of the employer – 1. Obstructing, impeding or interfering with by force, violence, coercion, threats or intimidation any peaceful picketing by employees during any labor controversy or in the exercise of their rights to self-organization or collective bargaining, or aiding or abetting such obstruction or interference; 2. Employing any strike breaker; Strike breaker-means any person who obstructs, impedes, or interferes with by force, violence, coercion, threats or intimidation any peaceful picketing affecting wages, hours or conditions of work or in the exercise of the right to selforganization or collective bargaining (Art. 212, LC) c)
On the part of the employees – 1. Stationary picket and the use of means like placing of objects to constitute permanent blockade or to effectively close points of entry or exit in company premises; 2. Any act of violence, coercion or intimidation by any picketer; 3. Obstruction of the free ingress or egress from the employer’s premises for lawful purposes. 4. Obstruction of public thoroughfares while engaged in picketing;
STRIKE AREA The establishment, warehouses, depots, plants or office, including the sites or premises used as run-away shops of the employer struck against, as well as the vicinity actually used by picketing strikers in moving to and fro before all points of entrance to an exit of said establishment.
IMPROVED OFFER BALLOTING Art. 265- In an effort to settle a strike, the DOLE shall conduct a referendum by secret balloting on the improved offer of the employer th (reduced offer of the union in case of a lockout) on or before the 30 day of the strike. When at least a majority of the union members (or if lockout: board of directors/trustees/partners holding the controlling interest in case of a partnership vote to accept the reduced offer), vote to accept the improved offer, the striking (or locked out) workers shall immediately return to work and the employer shall readmit them upon the signing of the agreement. - this is a device to shorten, if not avert, a strike. It opens a graceful exit to break a stalemate.
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Societas Spectra Legis Labor Relations Compilation CONSEQUENCES OF LEGAL AND ILLEGAL STRIKE a.) For Union Members: -Mere participation in a lawful strike does NOT constitute sufficient ground for termination of employment. participation in a strike which turned out to be illegal does not necessarily result in loss of job.
Even
-But anyone who commits an illegal act (e.g., destruction of property) during a strike may be dismissed from employment, regardless of whether the strike itself is legal or not. b.) For Union Officers: - Any union officer who knowingly participates in an illegal strike or in the commission of illegal acts during a strike, even if it is legal, may be declared to have lost his employment status. This is because the responsibility of union officers is greater than that of the members. Illegal strike and members participated- members cannot be terminated If they are dismissed from employment bec of such participation in an illegal strike- entitled to reinstatement and backwages from date of dismissal In industry indispensable to national interest the SOLE may or may not assume jurisdiction over the dispute
There was an illegal strike in an industry indispensable to national interest, can members be terminated? NO, bec. It is a Same rule applies whether the industry is indispensable to national interest or NOT, Art. 263A
IN PARI DELICTO RULE The PRINCIPLE OF IN PARI DELICTO provides that when two parties are equally at fault, the law leaves them as they are and denies recovery by either one of them. However, this principle does not apply with respect to inexistent and void contracts.
ARREST AND DETENTION OF UNION MEMBERS Art. 266. REQUIREMENT FOR ARREST AND DETENTION.- Except on grounds of national security and public peace, or in case of commission of a crime, NO union members or union organizers may be arrested or detained for union activities without previous consultation with the SOLE. This law protects union members from unwarranted arrest and detention. This law is addressed to the police authorities.
DO 40-G-03 s. 2010 Section 19. Criminal Prosecution – the regular courts shall have jurisdiction over any criminal action under Article 272 of the Labor Code. As amended, but subject to the required clearance from the DOLE on cases arising out of or related to a Labor Dispute pursuant to the Ministry of Justice (now Department of Justice) Circular No. 15. Series of 1982. And circular No. 9. Series of 1986. Criminal prosecution requires clearance from the DOLE. Fiscal shall secure clearance so that he can conduct preliminary investigation. Purpose is to safeguard the right to self- organization. DOLE wants to see to it that Criminal cases filed against these workers must not be without basis. It stops the fiscal from proceeding with the preliminary investigation if there is NO clearance from DOLE. DO 40-H-13 s. 2013 Section 19. Prohibition on law enforcement agencies or public officials/employees, armed persons, private security guards and similar personnel in the private security agency, Exception. – no public official or employee, including officers and personnel of the Armed Forces of the Philippines or the Philippine National Police, or armed person, private security guards and similar personnel in the private security agency shall bring in, introduce or escort in any manner, any individual who seeks to replace strikers in entering or leaving the premises of a strike area, or work in place of the strikers. University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Relations Compilation The police force shall keep out of the picketlines unless actual violence or other criminal acts occur therein. But any public officer, the SOLE or the NLRC may seek the assistance of law enforcement agencies to maintain peace and order, protect life and property, and/or enforce the law and legal order pursuant to the provisions of the Joint DOLE-PNP-PEZA Guidelines in the Conduct of PNP Personnel, Economic Zone Police and Security Guards, Company Security Guards and Similar Personnel During Labor Disputes
PNP assistance during strike. Purpose of the circular: to regulate the interference ; sole may have anticipated that employers may use PNP to harass workers; workers must be left alone during strike as long as they are not during illegal acts University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Relations Compilation Is there a duration of strike? NO it can last for years, no time imposed deadline when strike must be finished
JOINT DOLE-PNP-PEZA GUIDELINES IN THE CONDUCT OF PNP PERSONNEL, ECONOMIC ZONE POLICE AND SECURITY GUARDS, COMPANY SECURITY GUARDS AND SIMILAR PERSONNEL DURING LABOR DISPUTES (see Annex B below)
LEGAL REMEDIES OF EMPLOYER & UNION IN CASE OF STRIKE/LOCKOUT - the parties may resort to preventive mediation or alternative modes of dispute resolution including voluntary arbitration. - The regional branch of the NCMB shall exert all efforts at mediation and conciliation to enable the parties to settle amicably. The regional branch of the board may, upon agreement of the parties, treat a notice as a preventive mediation case. It shall also encourage the parties to submit the dispute to voluntary arbitration. (Sec. 9, Book V, Rule XXII, Implementing Rules, as amended by D.O. 40-03) - At any stage of a compulsory arbitration process, the parties may opt to submit their dispute to voluntary arbitration. (Art. 263 *h+, Art. 211*a+, Art.262.) Section 9. Action on Notice. - Upon receipt of the notice, the regional branch of the Board shall exert all efforts at mediation and conciliation to enable the parties to settle the dispute amicably. The regional branch of the Board may, upon agreement of th e parties, treat a notice as a preventive mediation case. It shall also encourage the parties to submit the dispute to voluntary arbitration. During the proceedings, the parties shall not do any act which may disrupt or impede the early settlement of the dispute. They are obliged, as part of their duty to bargain collectively in good faith and to participate fully and promptly in the conciliation meetings called by the regional branch of the Board. A notice, upon agreement of the parties, may be referred to alternative modes of dispute resolution, including voluntary arbitration. * Preventive Mediation Case- refers to the potential labor disputes which are the subject of a formal or informal request for conciliation and mediation assistance sought by either or both parties or upon the initiative of the NCMB to avoid the occurrence of actual labor disputes. * Labor dispute includes any controversy or matter concerning terms or conditions of employment or the association or representation of persons in negotiating the fixing, maintaining, changing or arranging the terms and conditions of employment, regardless of whether or not the disputants stand in the proximate relationship of employer and employee. (Art. 212 *l+)
JURISDICTION & PROCEDURE BEFORE THE LABOR ARBITER & THE SECRETARY OF LABOR - The SOLE, the NLRC (LA) or the voluntary arbitrator shall decide or resolve the dispute within 30 calendar days from the assumption of jurisdiction or the certification or submission of the dispute, as the case may be. The decision of the President, the SOLE, the Commission or the Voluntary Arbitrator shall be final and executory 10 calendar days after receipt thereof by the parties. (Art. 263 *i+) - the SOLE’s jurisdiction over national interest labor disputes extends to all questions arising from that dispute. However, excepted from this rule is the situation where in their CBA, the parties categorically agreed that disputes between them shall be referred to the grievance machinery which ends in voluntary arbitration. (University of San Agustin, Mar. 28, 2006)
INNOCENT BY-STANDER RULE - while peaceful picketing is entitled to protection as an exercise of free speech, the courts are empowered to confine or localize the sphere of communication or the demonstration to the parties to the labor dispute. The court may insulate establishments or persons with no industrial connection or having interest totally foreign to the context of the dispute. Thus, the right may be regulated at the instance of third persons or “innocent by-standers.” - according to Marquez, third parties cannot be disrupted by a labor dispute and they have a right to file for injunction. University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Relations Compilation ANTI-INJUNCTION BAN General Rule: No temporary or permanent injunction or restraining order in any case involving or growing out of labor disputes shall be issued by any court or other entity. - this is to protect the freedom of labor and management to bargain and settle disputes in the workplace on their own accord. Exceptions: 1.) Article 264 – commission of the prohibited activities 2.) Article 218 – pls. see Art. 218 (e) 3.) nat’l. interest cases - strikes/lockouts involving industries indispensable to national interest; assumption of SOLE or certification to the NLRC has the effect of automatically enjoining the strike/lockout. Article 254. Injunction prohibited. No temporary or permanent injunction or restraining order in any case involving or growing out of labor disputes shall be issued by any court or other entity, except as otherwise provided in Articles 218 and 264 of this Code. (As amended by Batas Pambansa Bilang 227, June 1, 1982) Art. 218 (e) To enjoin or restrain any actual or threatened commission of any or all prohibited or unlawful acts or to require the performance of a particular act in any labor dispute which, if not restrained or performed forthwith, may cause grave or irreparable damage to any party or render ineffectual any decision in favor of such party: Provided, That no temporary or permanent injunction in any case involving or growing out of a labor dispute as defined in this Code shall be issued except after hearing the testimony of witnesses, with opportunity for cross-examination, in support of the allegations of a complaint made under oath, and testimony in opposition thereto, if offered, and only after a finding of fact by the Commission, to the effect: That prohibited or unlawful acts have been threatened and will be committed and will be continued unless restrained, but no injunction or temporary restraining order shall be issued on account of any threat, prohibited or unlawful act, except against the person or persons, association or organization making the threat or committing the prohibited or unlawful act or actually authorizing or ratifying the same after actual knowledge thereof; That substantial and irreparable injury to complainant’s property will follow; That as to each item of relief to be granted, greater injury will be inflicted upon complainant by the denial of relief than will be inflicted upon defendants by the granting of relief; That complainant has no adequate remedy at law; and That the public officers charged with the duty to protect complainant’s property are unable or unwilling to furnish adequate protection. Such hearing shall be held after due and personal notice thereof has been served, in such manner as the Commission shall direct, to all known persons against whom relief is sought, and also to the Chief Executive and other public officials of the province or city within which the unlawful acts have been threatened or committed, charged with the duty to protect complainant’s property: Provided, however, that if a complainant shall also allege that, unless a temporary restraining order shall be issued without notice, a substantial and irreparable injury to complainant’s property will be unavoidable, such a temporary restraining order may be issued upon testimony under oath, sufficient, if sustained, to justify the Commission in issuing a temporary injunction upon hearing after notice. Such a temporary restraining order shall be effective for no longer than twenty (20) days and shall become void at the expiration of said twenty (20) days. No such temporary restraining order or temporary injunction shall be issued except on condition that complainant shall first file an undertaking with adequate security in an amount to be fixed by the Commission sufficient to recompense those enjoined for any loss, expense or damage caused by the improvident or erroneous issuance of such order or injunction, including all reasonable costs, together with a reasonable attorney’s fee, and expense of defense against the order or against the granting of any injunctive relief sought in the same proceeding and subsequently denied by the Commission. The undertaking herein mentioned shall be understood to constitute an agreement entered into by the complainant and the surety upon which an order may be rendered in the same suit or proceeding against said complainant and surety, upon a hearing to assess damages, of which hearing, complainant and surety shall have reasonable notice, the said complainant and surety submitting themselves to the jurisdiction of the Commission for that purpose. But nothing herein contained shall deprive any party having a claim or cause of action under or upon such undertaking from electing to pursue his ordinary remedy by suit at law or in equity: Provided, further, That the reception of evidence for the application of a writ of injunction may be delegated by the Commission to any of its Labor Arbiters who shall conduct such hearings in such places as he may determine to be accessible to the parties and their University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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FREEDOM AT WORKPLACE Moreover, Article 254 of the Labor Code specifically provides that the NLRC may grant injunctive relief under Article 218 thereof. Besides, the anti-injunction policy of the Labor Code, basically, is freedom at the workplace. It is more appropriate in the promotion of the primacy of free collective bargaining and negotiations, including voluntary arbitration, mediation and conciliation, as modes of settling labor and industrial disputes. Generally, an injunction is a preservative remedy for the protection of a person's substantive rights or interests. It is not a cause of action in itself but a mere provisional remedy, an appendage to the main suit. Pressing necessity requires that it should be resorted to only to avoid injurious consequences which cannot be remedied under any measure of consideration. The application of an injunctive writ rests upon the presence of an exigency or of an exceptional reason before the main case can be regularly heard. Theindispensable conditions for granting such temporary injunctive relief are: (a) that the complaint alleges facts which appear to be satisfactory to establish a proper basis for injunction, and (b) that on the entire showing from the contending parties, the injunction is reasonably necessary to protect the legal rights of the plaintiff pending the litigation. ||| (Ravago v. Esso Eastern Marine Ltd., G.R. No. 158324, March 14, 2005) QUESTIONS: 1. Renegotiation of CBA -CBA shall be renegotiated NOT LATER THAN 3 yrs. After it’s execution (CBA)
(term)
(6 mos.)
Jan1,2010--------Jan.1,2013-------------Jan.1,2015 5 yrs. Renegotiation- not later than 3 yrs. –Not later than Jan.1,2013- other Provisions (economic & noneconomic provisions) 2. Why do you think there’s a need for renegotiation? particularly economic. -because there’s no stability so that the needs of the workers are addressed -in most of the cases , it’s the economic provisions that is usually renegotiated 3. When will the renegotiation take effect? - a) within 6 mos. -June 1 ,2013, effeectivity is Jan. 21,2013 -March 2013 , date of retroactivity is the day after the expiry-Jan.2,2013 -renegotiated beyond 6 mos.-they will have to agree on a date 4. Reason? -to prevent undue burden on the employer 5. Parties can’t agree? -no hard and fast rule, submit themselves to arbitration -there’s no provision in the law that addresses the problem 6. What is meant by bargaining deadlock? A.252 Duty to bargain collectively 7. Remedy of a bargaining deadlock University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Relations Compilation A.262 submission to a voluntary Arbitrator (decided for both practice to agree. 8. One of the parties don’t agree , What’s the remedy? -right to engage in peaceful or lawful concerted activities, including the right to strike FORMS: 1.
Strike
2.
Picketing (part of freedom of expression/speech) A.264(e) LC
3.
Buycott
9. Lawful picketing , would this constitute stoppage of work? -NO 10. Picketing becomes illegal what’s the remedy? -Employer can file petition of injunction to the NLRC (A.218 e) -TRO for 20 days 11.Is this the same with civil procedure? -Yes, not extendible, 20 days only 12. Original? -Original jurisdiction of NLRC no appeal from NLRC, remedy? 13.If you engage in peaceful picketing do you have to notify the NCMB? -NO need 14. Picketing during lunchbreak? -lawful 15.Can you do a peaceful picketing? -Yes 16. armband wearing ? -picketing also, part of the freedom of expression *Picket right depends on case to case 17.Is bargaining deadlock a ground of strike? -Yes 18. Is a violation of CBA a ground for strike -Yes , if it’s gross violation (flagrant malicious) 19. First step : 1.File a notice of strike with regional branch of NCMB(not a quasi-judicial agency) -no requirement of majority signature of the union -no need of support requirement 20. Issue a notice of conciliation & mediation conference, to settle the dispute of the parties 21. Effect if one of the parties ignore the conciliation & mediation conference? University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Relations Compilation -not one of the parties has the authority to ignore the procedures-otherwise the strike is illegal state
part of the police power of the
22. cooling-off period Unfair Labor Practices- 15 days Bargaining deadlock- 30 days Union busting- cooling off period is dispensed w/ because it threatens the existence of union 23. Dismissal of union president & UP? -this already constitute union busting 24.Purpose of the cooling off period? -to explore possibilities of resolving disagreements 25. Agreeing on extending the cooling-off period? -they can there’s no prohibition 26.Preventive mediation? 27.What’s the effect of converting the notice of strike to preventive mediation ? -notice of strike is considered dropped ,& if the party proceeds w/ strike that’s illegal 28.Can the union now conduct strike vote during a cooling-off period ? Do they need to wait for the cooling off period to end? Requisites: 1.meeting conducted for that purpose 2.notify NCMB before 24 hrs. of the strike vote 3.secret balloting 4.supported by the majority of the total union membership 29. Purpose of 24-hour notice to NCMB? -to witness & supervise the voting , TO ENSURE INTEGRITY of the strike vote secret balloting Why? So that they will not be influenced by the leadership of the officers who wanted to hold the Strike 30.Effect of not notifying the NCMB w/n 24 hours? -ground for illegality of strike 31.Can the union re-schedule the strike vote? -Yes, no prohibition, provided that they comply w/the rules , until they reach the majority 32.Can the union conduct a strike vote after notice to NCMB ? -Yes , no prohibition as long as requisites are complied 33. submit to NCMB 34. If they submitted it to NCMB, can they immediately hold strike? -NO, 7-days waiting period or 7-days strike ban 35. What’s the purpose of 7-day waiting period? -final check if the strike is supported by the majority University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Relations Compilation 36. Very purpose of strike? (last weapon of employee) -to paralyze the operation of the employer 37. State the requisites of strike. 38. In holding a strike, are there acts which the strikers may not do? -Yes, prohibited acts under A.264 39. Can the employer file a petition of injunction ? Valid strike –cannot be enjoined Illegal strike- committing prohibited acts –they can be enjoined 40. Is there an instance where strike can be enjoined if the industry is indispensable to nat’l interest -SOL, AJO – 41. Effect? -employees have to return to work -employer has the obligation to admit them under the same terms and conditions PREVAILING before the strike. 42. Physical or payroll interest ? -law requires that it should be PHYSICAL REINSTATEMENT (no option on the part of the employer) XPN-teachers physical reinstatement in a school during the break 43. What would they commit if they defy the AJO? -Illegal, it is a cause considered analogous to serious misconduct etc. 44. Can they be immediately terminated? -NO, a hearing should be conducted first 45. Employer’s defiance? -accountable for back wages & damages 46. Industry indispensable to nat’l interest? - Banks (General Banking Laws of 2002? -hospitals, educational institutions, transportation (shipping, airlines) ,telecommunication 47. Can SOLE assume jur. Under industries that are not indispensable? -void assumption (in excess of jur.) 48. What is lockout? -temporary refusal of er to furnish work to ee as a result oof labor dispute 49. Reqst: 1. file a notice to Reg. Branch o NCMB Grounds: 1.ULP 2. bargaining deadlock Unfair Labor Practices of employer : A 248 University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Relations Compilation a. b. Yellow-dog contract c. contract out services ( not a labor-only contracting services ) –not illegal per se -Illegal when it will interfere with, restrain or coerce employees in the exercise of their rights to To self-organization e. closed-shop *You don’t sue everybody ,you must identify the persons who have actually participated, authorized or Ratified ULP 50. Req’s of ULP: 1. there’s ee-er relationship 2.ULP as enumerated in the Labor Code XPN : Yellow – dog contract – imposed the non-membership of a union as a condition for employment 51. Req’s for lock-out 1.Notice to NCMB 2.Observe the cooling off period 3.Majority vote of the Board of Directors 52. Single-enterprise bargaining ? –enterprise level – decentralized bargaining Multi-enterprise bargaining ? –takes place in multi – geographical locations 53. Improved – offer bargaining Reduced – offer bargaining 54. Right to financial statements? Reqs: 1.recognized as union 2.w/n freedom period (60 days before expiry of CBA) 3. 30 days after recognition 4. . . . . . . . . 55.Consequence of refusal to issue financial statement ? -refusal to bargain collectively, constitute ULP 56.Participation on policy & decision making process? -participate in policies that directly affect the employees 57.Management Labor Council - no right to collective bargaining -composed by employer & employee 58.Can a mere legitimate union claim financial statement ? -No, because only certified leg. labor union is allowed because its main purpose is for bargaining University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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TOPIC 14: REVISED GUIDELINES OF THE NCMB FOR THE CONDUCT OF VOLUNTARY ARBITRATION PROCEEDINGS ART. 260, 261, 262, 262-A, 262-B Grievance machinery Art. 260. Grievance machinery and voluntary arbitration. The parties to a Collective Bargaining Agreement shall include therein provisions that will ensure the mutual observance of its terms and conditions. They shall establish a machinery for the adjustment and resolution of grievances arising from the interpretation or implementation of their Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies. All grievances submitted to the grievance machinery which are not settled within seven (7) calendar days from the date of its submission shall automatically be referred to voluntary arbitration prescribed in the Collective Bargaining Agreement. For this purpose, parties to a Collective Bargaining Agreement shall name and designate in advance a Voluntary Arbitrator or panel of Voluntary Arbitrators, or include in the agreement a procedure for the selection of such Voluntary Arbitrator or panel of Voluntary Arbitrators, preferably from the listing of qualified Voluntary Arbitrators duly accredited by the Board. In case the parties fail to select a Voluntary Arbitrator or panel of Voluntary Arbitrators, the Board shall designate the Voluntary Arbitrator or panel of Voluntary Arbitrators, as may be necessary, pursuant to the selection procedure agreed upon in the Collective Bargaining Agreement, which shall act with the same force and effect as if the Arbitrator or panel of Arbitrators has been selected by the parties as described above.
Art. 261. Jurisdiction of Voluntary Arbitrators or panel of Voluntary Arbitrators. The Voluntary Arbitrator or panel of Voluntary Arbitrators shall have original and exclusive jurisdiction to hear and decide all unresolved grievances arising from the interpretation or implementation of the Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies referred to in the immediately preceding article. Accordingly, violations of a Collective Bargaining Agreement, except those which are gross in character, shall no longer be treated as unfair labor practice and shall be resolved as grievances under the Collective Bargaining Agreement. For purposes of this article, gross violations of Collective Bargaining Agreement shall mean flagrant and/or malicious refusal to comply with the economic provisions of such agreement. The Commission, its Regional Offices and the Regional Directors of the Department of Labor and Employment shall not entertain disputes, grievances or matters under the exclusive and original jurisdiction of the Voluntary Arbitrator or panel of Voluntary Arbitrators and shall immediately dispose and refer the same to the Grievance Machinery or Voluntary Arbitration provided in the Collective Bargaining Agreement
Art. 262. Jurisdiction over other labor disputes. The Voluntary Arbitrator or panel of Voluntary Arbitrators, upon agreement of the parties, shall also hear and decide all other labor disputes including unfair labor practices and bargaining deadlocks.
Art. 262-A. Procedures. The Voluntary Arbitrator or panel of Voluntary Arbitrators shall have the power to hold hearings, receive evidences and take whatever action is necessary to resolve the issue or issues subject of the dispute, including efforts to effect a voluntary settlement between parties. All parties to the dispute shall be entitled to attend the arbitration proceedings. The attendance of any third party or the exclusion of any witness from the proceedings shall be determined by the Voluntary Arbitrator or panel of Voluntary Arbitrators. Hearings may be adjourned for a cause or upon agreement by the parties. Unless the parties agree otherwise, it shall be mandatory for the Voluntary Arbitrator or panel of Voluntary Arbitrators to render an award or decision within twenty (20) calendar days from the date of the submission of the dispute to voluntary arbitration.
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Societas Spectra Legis Labor Relations Compilation The award or decision shall contain the facts and the law on which it is based. It shall be final and executory after ten ( 10) calendar days from receipt of the copy of the award or decision by the parties. Upon motion of any interested party, the Voluntary Arbitrator or panel of Voluntary Arbitrators or the Labor Arbiter in the region where the movant reside, in case of the absence or incapacity of the Voluntary Arbitrator or panel of Voluntary arbitrators for any reason, may issue a write of execution requiring either the sheriff of the Commission or regular courts or any public official whom the parties may designate in the submission agreement to execute the final decision, order or award.
Art. 262-B. Cost of Voluntary Arbitration and Voluntary Arbitrators fee. The parties to a Collective Bargaining Agreement shall provide therein a proportionate sharing scheme on the cost of voluntary arbitration including the Voluntary Arbitrators fee. The fixing of the fee of the Voluntary Arbitrators, whether shouldered wholly by the parties or subsidized by the Special Voluntary Arbitration Fund, shall take into account the following factors: (a) Nature of the case; (b) Time consumed in hearing the case; (c) Professional standing of the Voluntary Arbitrator (d) Capacity to pay of the parties; and (e) Fees provided for in the Revised Rules of Court.
DO-40-03 Amending the Implementing Rules of Book V of the Labor Code of the Philippines RULE XIX GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION Section 1. Establishment of grievance machinery. - The parties to a collective bargaining agreement shall establish a machinery for the expeditious resolution of grievances arising from the interpretation or implementation of the collective bargaining agreement and those arising from the interpretation or enforcement of company personnel policies. Unresolved grievances will be referred to voluntary arbitration and for this purpose, parties to a collective bargaining agreement shall name and designate in advance a voluntary arbitrator or panel of voluntary arbitrators, or include in the agreement procedure for the selection of such voluntary arbitrator or panel of voluntary arbitrators, preferably from the listing of qualified voluntary arbitrators duly accredited by the Board. In the absence of applicable provision in the collective bargaining agreement, a grievance committee shall be created within ten (10) days from signing of the collective bargaining agreement. The committee shall be composed of at least two (2) representatives each from the members of the bargaining unit and the employer, unless otherwise agreed upon by the parties. The representatives from among the members of the bargaining unit shall be designated by the union.
Section 2. Procedure in handling grievances. - In the absence of a specific provision in the collective bargaining agreement or existing company practice prescribing for the procedures in handling grievance, the following shall apply: (a) An employee shall present this grievance or complaint orally or in writing to the shop steward. Upon receipt thereof, the shop steward shall verify the facts and determine whether or not the grievance is valid. (b) If the grievance is valid, the shop steward shall immediately bring the complaint to the employee's immediate supervisor. The shop steward, the employee and his immediate supervisor shall exert efforts to settle the grievance at their level. (c) If no settlement is reached, the grievance shall be referred to the grievance committee which shall have ten (10) days to decide the case. Where the issue involves or arises from the interpretation or implementation of a provision in the collective bargaining agreement, or from any order, memorandum, circular or assignment issued by the appropriate authority in the establishment, and such issue cannot be resolved at the level of the shop steward or the supervisor, the same may be referred immediately to the grievance committee.
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Section 3. Submission to voluntary arbitration. - Where grievance remains unresolved, either party may serve notice upon the other of its decision to submit the issue to voluntary arbitration. The notice shall state the issue or issues to be arbitrated, copy thereof furnished the board or the voluntary arbitrator or panel of voluntary arbitrators named or designated in the collective bargaining agreement. If the party upon whom the notice is served fails or refuses to respond favorably within seven (7) days from receipt thereof, the voluntary arbitrator or panel of voluntary arbitrators designated in the collective bargaining agreement shall commence voluntary arbitration proceedings. Where the collective bargaining agreement does not so designate, the board shall call the parties and appoint a voluntary arbitrator or panel of voluntary arbitrators, who shall thereafter commence arbitration proceedings in accordance with the proceeding paragraph. In instances where parties fail to select a voluntary arbitrator or panel of voluntary arbitrators, the regional branch of the Board shall designate the voluntary arbitrator or panel of voluntary arbitrators, as may be necessary, which shall have the same force and effect as if the parties have selected the arbitrator.
Section 4. Jurisdiction of voluntary arbitrator or panel of voluntary arbitrators. - The voluntary arbitrator or panel of voluntary arbitrators shall have exclusive and original jurisdiction to hear and decide all grievances arising from the implementation or interpretation of the collective bargaining agreements and those arising from the interpretation or enforcement of company personnel policies which remain unresolved after exhaustion of the grievance procedure. They shall also have exclusive and original jurisdiction, to hear and decide wage distortion issues arising from the application of any wage orders in organized establishments, as well as unresolved grievances arising from the interpretation and implementation of the productivity incentive programs under RA 6971. The National Labor Relations Commission, its regional branches and Regional Directors of the Department of Labor and Employment shall not entertain disputes, grievances or matters under the exclusive and original jurisdiction of the voluntary arbitrator or panel of voluntary arbitrators and shall immediately dispose and refer the same to the appropriate grievance machinery or voluntary arbitration provided in the collective bargaining agreement. Upon agreement of the parties, any other labor dispute may be submitted to a voluntary arbitrator or panel of voluntary arbitrators. Before or at any stage of the compulsory arbitration process, the parties may opt to submit their dispute to voluntary arbitration.
Section 5. Powers of voluntary arbitrator or panel of voluntary arbitrators. - The voluntary arbitrator or panel of voluntary arbitrators shall have the power to hold hearings, receive evidence and take whatever action is necessary to resolve the issue/s subject of the dispute. The voluntary arbitrator or panel of voluntary arbitrators may conciliate or mediate to aid the parties in reaching a voluntary settlement of the dispute.
Section 6. Procedure. - All parties to the dispute shall be entitled to attend the arbitration proceedings. The attendance of any third party or the exclusion of any witness from the proceedings shall be determined by the voluntary arbitrator or panel of voluntary arbitrators. Hearing may be adjourned for cause or upon agreement by the parties. Unless the parties agree otherwise, it shall be mandatory for the voluntary arbitrator or panel of voluntary arbitrators to render an award or decision within twenty (20) calendar days from the date of submission for resolution. Failure on the part of the voluntary arbitrator to render a decision, resolution, order or award within the prescribed period, shall upon complaint of a party, be sufficient ground for the Board to discipline said voluntary arbitrator, pursuant to the guidelines issued by the Secretary. In cases that the recommended sanction is de-listing, it shall be unlawful for the voluntary arbitrator to refuse or fail to turn over to the board, for its further disposition, the records of the case within ten (10) calendar days from demand thereof.
Section 7. Finality of Award/Decision. - The decision, order, resolution or award of the voluntary arbitrator or panel of voluntary arbitrators shall be final and executory after ten (10) calendar days from receipt of the copy of the award or decision by the parties and it shall not be subject of a motion for reconsideration. University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Section 8. Execution of Award/Decision. - Upon motion of any interested party, the voluntary arbitrator or panel of voluntary arbitrators or the Labor Arbiter in the region where the movant resides, in case of the absence or incapacity for any reason of the voluntary arbitrator or panel of voluntary arbitrators who issued the award or decision, may issue a writ of execution requiring either the Sheriff of the Commission or regular courts or any public official whom the parties may designate in the submission agreement to execute the final decision, order or award. Section 9. Cost of voluntary arbitration and voluntary arbitrator's fee. - The parties to a collective bargaining agreement shall provide therein a proportionate sharing scheme on the cost of voluntary arbitration including the voluntary arbitrator's fee. The fixing of fee of voluntary arbitrators or panel of voluntary arbitrators, whether shouldered wholly by the parties or subsidized by the Special Voluntary Arbitration Fund, shall take into account the following factors: (a) Nature of the case; (b) Time consumed in hearing the case; (c) Professional standing of the voluntary arbitrator; (d) Capacity to pay of the parties; and (e) Fees provided for in the Revised Rules of Court. Unless the parties agree otherwise, the cost of voluntary arbitration proceedings and voluntary arbitrator's fee shall be shared equally by the parties Parties are encouraged to set aside funds to answer for the cost of voluntary arbitration proceedings including voluntary arb itrator's fee. In the event the said funds are not sufficient to cover such expenses, an amount by way of subsidy taken out of the Spec ial Voluntary Arbitration fund may be availed of by either or both parties subject to the guidelines on voluntary arbitration to be issued by the Secretary. Section 10. Maintenance of case records by the Board. - The Board shall maintain all records pertaining to a voluntary arbitration case. In all cases, the Board shall be furnished a copy of all pleadings and submitted to the voluntary arbitrator as well as the orders, awards and decisions issued by the voluntary arbitrator. The records of a case shall be turned over by the voluntary arbitrator or panel of voluntary arbitrators to the concerned regional branch of the Board within ten (10) days upon satisfaction of the final arbitral award/order/decision.
ART. 211 (G), LABOR CODE & SEC. 3, ART XIII, 1987 CONSTITUTION Art. 211 Declaration of policy (g) To ensure the participation of workers in decision and policy-making processes affecting their rights, duties and welfare. Sec 3, Art 8, 1987 Constitution. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth.
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Societas Spectra Legis Labor Relations Compilation Art. 255 & ART. 277 (G) & (H) ART. 255, LABOR CODE Article 255. Exclusive bargaining representation and workers’ participation in policy and decision-making. The labor organization designated or selected by the majority of the employees in an appropriate collective bargaining unit shall be the exclusive representative of the employees in such unit for the purpose of collective bargaining. However, an individual employee or group of employees shall have the right at any time to present grievances to their employer. Any provision of law to the contrary notwithstanding, workers shall have the right, subject to such rules and regulations as the Secretary of Labor and Employment may promulgate, to participate in policy and decision-making processes of the establishment where they are employed insofar as said processes will directly affect their rights, benefits and welfare. For this purpose, workers and employers may form labor-management councils: Provided, That the representatives of the workers in such labor-management councils shall be elected by at least the majority of all employees in said establishment. (As amended by Section 22, Republic Act No. 6715, March 21, 1989)
Does the law allow individual worker in an organized establishment to present their grievance directly to the ER? -
Yes. Article 255, par 1
Does the law allow those workers who present their grievances directly to the employer to submit their grievance to the VA if the grievance is not resolved? -
No. In Tabigue vs International Copra Corp. the Court held that the right of an EE or group of EEs to, at anytime, present grievances to the ER does not imply the right to submit the same to voluntary arbitration.
-
This is because the parties to a CBA are the Union and the ER. Thus, In an organized establishment it is the CBU which is has the legal capacity to submit the grievance to voluntary arbitration and not the individual EE.
What is the right of the workers to participate in policy and decision making processes? Does this right give them the right to be a member of the board of directors? -
Article 255, LC
-
They can form a Labor Management Council
-
EEs cannot become members of the board of directors because Art. 255 limited the participation to negotiation on matters affecting the rights, benefits, and welfare of EEs
What is the Labor Management Council? What is the scope and area of jurisdiction of the LMC? -
This is the council composed of the labor and the ER.
Can a LMC exist in an organized establishment? -
Yes
Will there be overlapping of functions? -
No. Because the LMC is limited only to areas outside or not covered by the jurisdiction of collective bargaining.
Art. 277 (g) & (h), Labor Code Art. 277 Miscellaneous provisions The Ministry shall help promote and gradually develop, with the agreement of labor organizations and employers, labormanagement cooperation programs at appropriate levels of the enterprise based on the shared responsibility and mutual respect in order to ensure industrial peace and improvement in productivity, working conditions and the quality of working life. (Incorporated by Batas Pambansa Bilang 130, August 21, 1981) University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Relations Compilation In establishments where no legitimate labor organization exists, labor-management committees may be formed voluntarily by workers and employers for the purpose of promoting industrial peace. The Department of Labor and Employment shall endeavor to enlighten and educate the workers and employers on their rights and responsibilities through labor education with emphasis on the policy thrusts of this Code. (As amended by Section 33, Republic Act No. 6715, March 21, 1989)
Definition of Terms: Grievance - refers to any question by either the employer or the union regarding the interpretation or implementation of any provision of the collective bargaining agreement or interpretation or enforcement of company personnel policies (IRR) - or any claim by either party that the other party is violating any provision of the CBA or company personnel policies. It is a complaint or dissatisfaction arising from the interpretation or implementation of the CBA and those arising from interpretation or enforcement of personnel policies. Company/Personnel Policies- are guiding principles stated in broad, long-range terms that express the philosophy or beliefs of an organizations’ top authority regarding personnel matters. They deal with matters affecting efficiency and well-being of employees and include, among others, the procedures in the administration of wages, benefits, promotions, transfer and other personnel movements which are usually not spelled out in the collective bargaining agreement. Grievance Machinery - refers to the mechanism for the adjustment and resolution of grievances arising from the interpretation or implementation of a CBA and those arising from the interpretation or enforcement of company personnel policies. It is part of the continuing process of collective bargaining.
FRAMEWORK OF ALTERNATIVE DISPUTE RESOLUTION FOR DISPUTE PREVENTION: 1. CONCILIATION- MEDIATION Conciliation- process where a disinterested third party meets with management and labor, at their request or otherwise, during a labor dispute or in a collective bargaining conference, and by cooling tempers, aids in reaching an agreement; Mediation- a third party studies each side of the dispute then makes proposal for the disputants to consider, but a mediator cannot render an award; Conciliation and mediation done by the NCMB.
2. VOLUNTARY ARBITRATION Refers to the mode of settling labor-management disputes by which the parties select a competent, trained and impartial third person who shall decide on the merits of the case and whose decision is final and executory. Arbitration- the submission of a dispute to an impartial third person for determination on the basis of evidence and arguments of the parties. Voluntary- if the submission of the dispute is by agreement of the parties and the arbitrators or panel of arbitrators is chosen by them. Voluntary arbitration arbitration is done by voluntary arbitrators.
3. GRIEVANCE HANDLING Section 2. Procedure in handling grievances. - In the absence of a specific provision in the collective bargaining agreement or existing company practice prescribing for the procedures in handling grievance, the following shall apply: (a) An employee shall present this grievance or complaint orally or in writing to the shop steward. Upon receipt thereof, the shop steward shall verify the facts and determine whether or not the grievance is valid. University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Relations Compilation (b) If the grievance is valid, the shop steward shall immediately bring the complaint to the employee's immediate supervisor. The shop steward, the employee and his immediate supervisor shall exert efforts to settle the grievance at their level. (c) If no settlement is reached, the grievance shall be referred to the grievance committee which shall have ten (10) days to decide the case. Where the issue involves or arises from the interpretation or implementation of a provision in the collective bargaining agreement, or from any order, memorandum, circular or assignment issued by the appropriate authority in the establishment, and such issue cannot be resolved at the level of the shop steward or the supervisor, the same may be referred immediately to the grievance committee
4. WORKPLACE COOPERATION (LABOR- MANAGEMENT COUNCIL) Rule XXI: Labor-Management and other Councils Section 1. Creation of labor management and other councils. – The Department shall promote the formation of labormanagement councils in organized and unorganized establishments to enable the workers to participate in policy and decisionmaking processes in the establishment, insofar as said processes will directly affect their rights, benefits and welfare, except those which are covered by collective bargaining agreements or are traditional areas of bargaining. The Department shall promote other labor-management cooperation schemes and, upon its own initiative or upon the request of both parties, may assist in the formation and development of programs and projects on productivity, occupational safety and health, improvement of quality of work life, product quality improvement, and other similar scheme. In line with the foregoing, the Department shall render, among others, the following services: (a)
Conduct awareness campaigns;
(b)
Assit the parties in seeting up labor-management structures, functions and procedures;
(c)
Provide process facilitators upon request of the parties; and
(d) Monitor the activiteis of labor-management structures as may be necessary and conduct studies on best practices aimed at promoting harmonious labor-management relations. Section 2. Selection of Representatives- In organized establishments, the workers’ representatives to the council shall be nominated by the exclusive bargaining representative. In establishments where no legitimate labor organization exists, the workers representative shall be elected directly by the employees at large. A Labor management council is not a labor organization, it is only a certified bargaining union. Its composition consists of both workers and employers, and it has no right to bargain collectively (unlike a labor union). It serves as an effective channel between the workers and employer. It is versatile, and it can exist where there is no union or co-exist with a union. One thing it cannot and must not do is to replace a union. In Cebu, the only LMC is the one in Shangrila Mactan 2 More kinds of LMC: 1.
Labor-management Cooperation Programs (Art. 291 (g) )
2.
Labor-management Committee (Art. 291 (h)
The common purpose is promotion of productivity and industrial peach through labor education.
5. EMPLOYEE INVOLVEMENT (EI) & EMPLOYMENT PARTICIPATION SCHEMES Art. 211 (A) (g) Declaration of Policy. To ensure the participation of workers in decision and policy-making processes affecting their rights, duties and welfare. Art. 255. Exclusive bargaining representation and workers’ participation in policy and decision-making. The labor organization designated or selected by the majority of the employees in an appropriate collective bargaining unit shall be the exclusive University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Relations Compilation representative of the employees in such unit for the purpose of collective bargaining. However, an individual employee or group of employees shall have the right at any time to present grievances to their employer. Any provision of law to the contrary notwithstanding, workers shall have the right, subject to such rules and regulations as the Secretary of Labor and Employment may promulgate, to participate in policy and decision-making processes of the establishment where they are employed insofar as said processes will directly affect their rights, benefits and welfare. For this purpose, workers and employers may form labor-management councils: Provided, That the representatives of the workers in such labor-management councils shall be elected by at least the majority of all employees in said establishment. (As amended by Section 22, Republic Act No. 6715, March 21, 1989)
Three Levels of Employee Participation There are three levels in which employees could influence management in their decision making: 1.
Corporate level- strategic policies, disposition of profits and the like.
2.
Plant or Department level – administrative decisions: hiring, firing, promotion, cost and quality contorol, resource allocations, achievement of target quota and etc.
3.
Shop-floor level- operating decisions: scheduling of work, safety regulations, work methods, training of new employees.
Jurisprudence: All this points to the conclusion that the exercise of managerial prerogatives is not unlimited. It is circumscribed by limitations found in law, a collective bargaining agreement, or the general principles of fair play and justice (University of Sto. Tomas vs. NLRC, 190 SCRA 758 [1990]).| It is worthwhile to note that all the Union demands and what the Secretary's order granted is that the Union be allowed to participate in policy formulation and decision-making process on matters affecting the Union members' rights, duties and welfare as required in Article 211 (A) (g) of the Labor Code. And this can only be done when the Union is allowed to have representatives in the Safety Committee, Uniform Committee and other committees of a similar nature. Certainly, such participation by the Union in the said committees is not in the nature of a co-management control of the business of MERALCO. What is granted by the Secretary is participation and representation. Thus, there is no impairment of management prerogatives. (Manila Electric Co. v. Quisumbing, G.R. No. 127598, January 27, 1999) Indeed, industrial peace cannot be achieved if the employees are denied their just participation in the discussion of matters affecting their rights. Thus, even before Article 211 of the Labor Code (P.D. 442) was amended by Republic Act No. 6715, it was already declared a policy of the State: "(d) To promote the enlightenment of workers concerning their rights and obligations . . .as employees." This was, of course, amplified by Republic Act No. 6715 when it decreed the "participation of workers in decision and policy making processes affecting their rights, duties and welfare." (Philippine Airlines, Inc. v. NLRC, G.R. No. 85985, August 13, 1993)
Level of participation: The Court declared that employees possess the “right to participate in the deliberation of matters which may affect their rights and the formulation of polices relative thereto.” “Once such matter is the formulation” of a code of discipline.” “Formulation” (by dictionary definition) includes “to devise, to invent” – in this context, to make or create a policy. Thus when the Court was asked whether employees may demand participation in making the company’s code of discipline, the Court replied yes. The Court differentiated management prerogatives regarding business operations and those which affect the employees’ rights. The latter category belongs the making of a code of conduct; in formulating such code, therefore, the employees have the right to participate. (azucena) The participatory right is not meant to grant co-management control of the business. (meralco case)
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Societas Spectra Legis Labor Relations Compilation 6. COLLECTIVE BARGAINING Art. 252. Meaning of duty to bargain collectively. The duty to bargain collectively means the performance of a mutual 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. Collective bargaining consists of negotiations between an employer and a group of employees so as to determine the conditions of employment. The result of collective bargaining procedures is a collective agreement. Employees are often represented in bargaining by a union or other labor organization. Collective bargaining covers all aspects of the employment relation and the resultant CBA negotiated by the certified union binds all employees in the bargaining unit. (NUWHRAIN-Manila Pavilion Hotel Chapter v. Secretary of Labor and Employment, G.R. No. 181531, July 31, 2009)
Remedies in Labor Disputes: a. b. c.
Grievance procedure Enforcement of compliance order- an act of the SOLE (Thru’ RD’s or other representatives) in the exercise of his visitorial and enforcement power; Certification of bargaining representatives- c/- Med-Arbter
STRIKE OR LOCK-OUT INTERVENTION ON THE PART OF DOLE: CONCILIATION/MEDIATION A. CONCILIATION/MEDIATION (NCMB), B. VOLUNTARY (ART. 262) Article 262. Jurisdiction over other labor disputes. The Voluntary Arbitrator or panel of Voluntary Arbitrators, upon agreement of the parties, shall also hear and decide all other labor disputes including unfair labor practices and bargaining deadlocks.
C. COMPULSORY ARBITRATION (ART. 217) Article 217. Jurisdiction of Labor Arbiters and the Commission. (a) Except as otherwise provided under this Code, the Labor Arbiters shall have the original and exclusive jurisdiction to hear and decide, within thirty (30) calendar days after the submission of the case by the parties for decision without extension, even in the absence of stenographic notes, the following cases involving all workers, whether agricultural or non-agricultural: (1) Unfair labor practice cases; (2) Termination disputes; (3) If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions of employment; (4) Claims for actual, moral, exemplary and other forms of damages arising from the employer-employee relations; (5) Cases arising from any violation of Article 264 of this Code, including questions involving the legality of strikes and lockouts; and (6) Except claims for employees compensation, social security, medicare and maternity benefits, all other claims arising from employer-employee relations, including those of persons in domestic or household service involving an amount exceeding five thousand pesos (P5,000), whether or not accompanied with a claim for reinstatement. (b) The Commission shall have exclusive appellate jurisdiction over all cases decided by Labor Arbiters. University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Relations Compilation (c) Cases arising from the interpretation or implementation of collective bargaining agreements and those arising from the interpretation or enforcement of company personnel policies shall be disposed by the Labor Arbiter by referring the same to the grievance machinery and voluntary arbitration as may be provided in said agreements.
D. ASSUMPTION OF JURISDICTION (ART. 263 (G)) Art. 263 (g). When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration. Such assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order. If one has already taken place at the time of assumption or certification, all striking or locked out employees shall immediately return-to-work and the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. The Secretary of Labor and Employment or the Commission may seek the assistance of law enforcement agencies to ensure compliance with this provision as well as with such orders as he may issue to enforce the same. In line with the national concern for and the highest respect accorded to the right of patients to life and health, strikes and lockouts in hospitals, clinics and similar medical institutions shall, to every extent possible, be avoided, and all serious efforts, not only by labor and management but government as well, be exhausted to substantially minimize, if not prevent, their adverse effects on such life and health, through the exercise, however legitimate, by labor of its right to strike and by management to lockout. In labor disputes adversely affecting the continued operation of such hospitals, clinics or medical institutions, it shall be the duty of the striking union or locking-out employer to provide and maintain an effective skeletal workforce of medical and other health personnel, whose movement and services shall be unhampered and unrestricted, as are necessary to insure the proper and adequate protection of the life and health of its patients, most especially emergency cases, for the duration of the strike or lockout. In such cases, therefore, the Secretary of Labor and Employment may immediately assume, within twenty four (24) hours from knowledge of the occurrence of such a strike or lockout, jurisdiction over the same or certify it to the Commission for compulsory arbitration. For this purpose, the contending parties are strictly enjoined to comply with such orders, prohibitions and/or injunctions as are issued by the Secretary of Labor and Employment or the Commission, under pain of immediate disciplinary action, including dismissal or loss of employment status or payment by the locking-out employer of backwages, damages and other affirmative relief, even criminal prosecution against either or both of them. The foregoing notwithstanding, the President of the Philippines shall not be precluded from determining the industries that, in his opinion, are indispensable to the national interest, and from intervening at any time and assuming jurisdiction over any such labor dispute in order to settle or terminate the same.
GRIEVANCE; CONCEPT; & SCOPE GRIEVANCE - refers to any question by either the employer or the union regarding the interpretation or implementation of any provision of the collective bargaining agreement or interpretation or enforcement of company personnel policies (IRR) or any claim by either party that the other party is violating any provision of the CBA or company personnel policies. It is a complaint or dissatisfaction arising from the interpretation or implementation of the CBA and those arising from interpretation or enforcement of personnel policies.
“Grievance” is a complaint arising from the interpretation or implementation of the collective bargaining agreement (CBA) and those arising from interpretation or enforcement of company rules and regulations, personnel policies, and established practices, or such other controversy involving employer-employee relationship.
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Societas Spectra Legis Labor Relations Compilation SUBMISSION AGREEMENT; NOTICE TO ARBITRATE; ARBITRATION CLAUSE Submission Agreement- refers to a written agreement by the parties submitting their case for arbitration containing the issues, the chosen arbitrator and stipulation to abide by and comply with the resolution including the cost of arbitration. Notice to Arbitrate- refers to a formal demand made by one party to the other for the arbitration of a particular dispute in case of refusal of one party in a CBA to submit to arbitration. Arbitration Clause – is a provision in the collective bargaining agreement (CBA) requiring that grievances, if unsettled, shall be finally resolved by a voluntary arbitrator. If one party wants to submit the dispute to VA such party may file Notice to arbitrate to NCMB. Other party is required to reply to notice to arbitrate; if other party does not reply the NCMB will appoint an arbitrator; if the other party wants to submit to VA the NCMB will schedule the conciliation and mediation conference Section 3. Submission to voluntary arbitration. - Where grievance remains unresolved, either party may serve notice upon the other of its decision to submit the issue to voluntary arbitration. The notice shall state the issue or issues to be arbitrated, copy thereof furnished the board or the voluntary arbitrator or panel of voluntary arbitrators named or designated in the collective bargaining agreement. If the party upon whom the notice is served fails or refuses to respond favorably within seven (7) days from receipt thereof, the voluntary arbitrator or panel of voluntary arbitrators designated in the collective bargaining agreement shall commence voluntary arbitration proceedings. Where the collective bargaining agreement does not so designate, the board shall call the parties and appoint a voluntary arbitrator or panel of voluntary arbitrators, who shall thereafter commence arbitration proceedings in accordance with the proceeding paragraph. In instances where parties fail to select a voluntary arbitrator or panel of voluntary arbitrators, the regional branch of the Board shall designate the voluntary arbitrator or panel of voluntary arbitrators, as may be necessary, which shall have the same force and effect as if the parties have selected the arbitrator
GRIEVANCE MACHINERY; UNRESOLVED GRIEVANCES Section 4. Jurisdiction of voluntary arbitrator or panel of voluntary arbitrators. - The voluntary arbitrator or panel of voluntary arbitrators shall have exclusive and original jurisdiction to hear and decide all grievances arising from the implementation or interpretation of the collective bargaining agreements and those arising from the interpretation or enforcement of company personnel policies which remain unresolved after exhaustion of the grievance procedure GRIEVANCE MACHINERY- refers to the mechanism for the adjustment and resolution of grievances arising from the interpretation or implementation of a CBA and those arising from the interpretation or enforcement of company personnel policies. It is part of the continuing process of collective bargaining.
COLLECTIVE BARGAINING AGREEMENT & COMPANY PERSONNEL POLICIES (CONTRACT INTERPRETATION & ENFORCEMENT DISPUTE) Collective Bargaining Agreement - CBA for short, refers to the contract between a duly recognized or certified exclusive bargaining agent of workers and the employer concerning wages, hours of work and all other terms and conditions of employment in the appropriate bargaining UNIT. Company/Personnel Policies- are guiding principles stated in broad, long-range terms that express the philosophy or beliefs of an organizations’ top authority regarding personnel matters. They deal with matters affecting efficiency and well-being of employees and include, among others, the procedures in the administration of wages, benefits, promotions, transfer and other personnel movements which are usually not spelled out in the collective bargaining agreement. Are company personnel policies the same with company code of discipline/ comp. rules and regulations of discipline? NO but it may include
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Societas Spectra Legis Labor Relations Compilation DISPUTES INVOLVING PRODUCTIVITY INCENTIVE PROGRAMS UNDER RA 6971 (PRODUCTIVITY INCENTIVES ACT) Productivity Incentive Programs- refers to a formal agreement voluntarily established by the labor-management committee containing a productivity improvement program that will promote gainful employment, improve working conditions, maintain industrial peace and result in increased productivity, including cost savings, as well as productivity gain-sharing program whereby the employees are granted productivity bonuses. Section 4.xxx They shall also have exclusive and original jurisdiction, to hear and decide wage distortion issues arising from the application of any wage orders in organized establishments, as well as unresolved grievances arising from the interpretation and implementation of the productivity incentive programs under RA 6971.
GRIEVANCE PROCEDURE; GRIEVANCE COMMITTEE Section 6. Procedure. - All parties to the dispute shall be entitled to attend the arbitration proceedings. The attendance of any third party or the exclusion of any witness from the proceedings shall be determined by the voluntary arbitrator or panel of voluntary arbitrators. Hearing may be adjourned for cause or upon agreement by the parties. Unless the parties agree otherwise, it shall be mandatory for the voluntary arbitrator or panel of voluntary arbitrators to render an award or decision within twenty (20) calendar days from the date of submission for resolution. Failure on the part of the voluntary arbitrator to render a decision, resolution, order or award within the prescribed period, shall upon complaint of a party, be sufficient ground for the Board to discipline said voluntary arbitrator, pursuant to the guidelines issued by the Secretary. In cases that the recommended sanction is de-listing, it shall be unlawful for the voluntary arbitrator to refuse or fail to turn over to the board, for its further disposition, the records of the case within ten (10) calendar days from demand thereof.
VOLUNTARY ARBITRATION; DISTINGUISHED FROM COMPULSORY ARBITRATION
Voluntary
Compulsory
-if the submission of the dispute is by agreement of the parties
- submission of the dispute is by directive of law.
- the arbitrators or panel of arbitrators is chosen by them. However person chosen can inhibit himself - Done by voluntary arbitrators who performs quasi judicial function
-done by Labor arbiters
-the award is final and unappelable and the only recourse is certiorari
-decision is appealable to the NLRC
Unlike a conciliatory or mediator, an arbitrator is a judge; he makes decisions and awards that the parties must accept.
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Societas Spectra Legis Labor Relations Compilation DESIGNATION OR APPOINTMENT OF VOLUNTARY ARBITRATOR; AD-HOC AND PERMANENT Section 1. Establishment of grievance machinery. - The parties to a collective bargaining agreement shall establish a machinery for the expeditious resolution of grievances arising from the interpretation or implementation of the collective bargaining agreement and those arising from the interpretation or enforcement of company personnel policies. Unresolved grievances will be referred to voluntary arbitration and for this purpose, parties to a collective bargaining agreement shall name and designate in advance a voluntary arbitrator or panel of voluntary arbitrators, or include in the agreement a procedure for the selection of such voluntary arbitrator or panel of voluntary arbitrators, preferably from the listing of qualified voluntary arbitrators duly accredited by the Board. In the absence of applicable provision in the collective bargaining agreement, a grievance committee shall be created within ten (10) days from signing of the collective bargaining agreement. The committee shall be composed of at least two (2) representatives each from the members of the bargaining unit and the employer, unless otherwise agreed upon by the parties. The representatives from among the members of the bargaining unit shall be designated by the union. Voluntary Arbitrator- refers to any person who has been accredited by the Board as such, or any person named or designated in the collective bargaining agreement by the parties as their voluntary arbitrator, or one chosen by the parties with or without the assistance of the Board, pursuant to a selection procedure agreed upon in the CBA or one appointed by the Board in case either of the parties to the CBA refuses to submit to voluntary arbitration. The term includes panel of voluntary arbitrators. 1.) Permanent arbitrator- the voluntary arbitrator specifically named or designated in the collective bargaining agreement by the parties as their voluntary arbitrator. 2.) Ad-hoc arbitrator- the voluntary arbitrator chosen by the parties in accordance with the established procedures in the CBA or the one appointed by the Board in case there is failure in the selection or in case either of the parties to the CBA refuses to submit to voluntary arbitration.
JURISDICTION OF VOLUNTARY ARBITRATOR; ORIGINAL AND EXCLUSIVE; & CONCURRENT Section 1. Exclusive and Original Jurisdiction. The voluntary arbitrator shall have exclusive original jurisdiction over the following cases: 1)
all unresolved grievances arising from the interpretation or implementation of the collective bargaining agreement.
2)
All unresolved grievances arising form the implementation or enforcement of company personnel policies
3)
All wage distortion issues arising from the application of any wage orders in organized establishments
4)
All unresolved grievances arising from the interpretation and implementation of the productivity incentive programs under RA 6971
For this purpose all grievances which are not settled or resolved within seven (7) calendar days form the date of the submission for resolution to the last step of the grievance machinery shall automatically be referred to voluntary arbitration prescribed in the collective bargaining agreement. Cases falling within the exclusive and original jurisdiction of voluntary arbitrators but filed wither with the National Labo r Relations Commission and its Regional Branches, or the Regional Directors of the Department of the Labor and Employment or with the Board and its Branches, shall be decided by the voluntary arbitrator upon referral of said cases pursuant to paragraph 2, Article 261 of the Labor Code, as amended by RA 6715 and Department Order No. 40-03 1.
Unresolved grievances arising from implementation or interpretation of the collective bargaining agreements and those arising from the interpretation or enforcement of company personnel policies
2.
Wage distortion issues arising from the application of any wage orders in organized establishments
3.
Unresolved grievances arising from the interpretation and implementation of the productivity incentive programs under RA no. 6971
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Societas Spectra Legis Labor Relations Compilation Concurrent jurisdiction Section 2. Concurrent Jurisdiction – The voluntary arbitrator upon agreement of the parties, shall also hear and decide all other labor disputes including unfair labor practice and bargaining deadlocks. Before or at any stage of the compulsory arbitration process, parties to a labor dispute may agree to submit their case to voluntary arbitration. Any other labor dispute that may be submitted to a voluntary arbitrator or panel of voluntary arbitrators. Other disputes that may be submitted by parties (CBU and employer) to VA: 1. Termination dispute- parties may agree to submit the dispute to voluntary arbitration 2. ULP (unfair labor practice) 3. Bargaining deadlock - agreement may be found in the CBA
POWERS AND DUTIES OF VOLUNTARY ARBITRATOR Section 4. When Jurisdiction is Exercised. The voluntary arbitrator shall exercise jurisdiction over specific case/s: 1)
Upon receipt of a submission agreement duly signed by both parties.
2)
Upon receipt of the notice to arbitrate when there is refusal from one party;
3)
Upon receipt of an appointment/designation as voluntary arbitrator by the board in either of the following circumstances: a.
In the even that parties fail to select an arbitrator; or
b.
In the absence of a named arbitrator in the CBA and the party upon whom the notice to arbitrate is served does not favorably reply within seven (7) days from receipt of such notice
Section 1. Duty to conciliate and mediate. The voluntary arbitrator shall exert best efforts to conciliate to mediate or aid the parties in reaching a voluntary settlement of the dispute, before proceeding with arbitration. Section 2. Duty to encourage the parties to enter into stipulation of facts. To facilitate speedy disposition of cases, in case the parties failed to reach a voluntary settlement of the dispute, the voluntary arbitrator shall encourage the parties to enter into stipulation of facts, which shall be reduced in writing, signed by the p arties, and shall form part of the records of the case. Section 3. Powers. The voluntary arbitrator shall have the following powers to: 1.
Require any person to attend hearing/s;
2.
Subpoena witnesses and receive documents when the relevancy of the testimony and the materiality thereof has been demonstrated to the arbitrators;
3.
Take whatever action is necessary to resolve the issue/s subject of the dispute;
4.
Issue a writ of execution to enforce final decision and, in connection therewith, it shall be his duty to: 4.1. See to it that his/her decision is fully satisfied; 4.2. Inquire into the correctness of the execution of his/her final decision; 4.3. Consider whatever supervening event that may transpire during such execution; 4.4. Determine every question of fact and law which may be involved in the execution.
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Societas Spectra Legis Labor Relations Compilation Section 5. Powers of voluntary arbitrator or panel of voluntary arbitrators. - The voluntary arbitrator or panel of voluntary arbitrators shall have the power to hold hearings, receive evidence and take whatever action is necessary to resolve the issue/s subject of the dispute. The voluntary arbitrator or panel of voluntary arbitrators may conciliate or mediate to aid the parties in reaching a volunta ry settlement of the dispute.
COST OF VOLUNTARY ARBITRATION AND FEES OF ARBITRATOR Section 9. Cost of voluntary arbitration and voluntary arbitrator's fee. - The parties to a collective bargaining agreement shall provide therein a proportionate sharing scheme on the cost of voluntary arbitration including the voluntary arbitrator's fee. The fixing of fee of voluntary arbitrators or panel of voluntary arbitrators, whether shouldered wholly by the parties or subsidized by the Special Voluntary Arbitration Fund, shall take into account the following factors: (a) Nature of the case; (b) Time consumed in hearing the case; (c) Professional standing of the voluntary arbitrator; (d) Capacity to pay of the parties; and (e) Fees provided for in the Revised Rules of Court. Unless the parties agree otherwise, the cost of voluntary arbitration proceedings and voluntary arbitrator's fee shall be shared equally by the parties Parties are encouraged to set aside funds to answer for the cost of voluntary arbitration proceedings including voluntary arbitrator's fee. In the event the said funds are not sufficient to cover such expenses, an amount by way of subsidy taken out of the Spec ial Voluntary Arbitration fund may be availed of by either or both parties subject to the guidelines on voluntary arbitration to be issued by the Secretary Does the law provide payment of arbitrator’s fees? Yes Who pays the fees? The parties (certified bargaining union and employer) who will fix the arbitrator’s fees? The parties will agree how much to pay is that the same rule for disputes heard by the LA? NO, because VA is chosen by the parties and you render services to them Can the arbitrator say how much he will ask as arbitrator’s fees? Yes bec. Parties may disengage with the arbitrator if they don’t agree with the fee
NATURE OF PROCEEDINGS; INITIAL CONFERENCE; ARBITRATION ISSUES; GROUND RULES; FILING OF POSITION PAPERS AND OTHER PLEADINGS; CLARIFICATORY HEARING; RECORDING OF PROCEEDINGS; ARBITRATION CONFERENCE REVISED PROCEDURAL GUIDELINES IN THE CONDUCT OF VOLUNTARY ARBITRATION PROCEEDINGS RULE VI: PROCEEDINGS BEFORE VOLUNTARY ARBITRATOR Section 1. Nature of Proceedings. The proceedings before a voluntary arbitrator are non-litigious in nature. They are governed by technical rules applicable to court or judicial proceedings, but they must at all times comply with the requirements of due process. Section 2. Setting of Initial Conference; Notice to Parties. Within two (2) days from receipt of the Submission Agreement, Notice to Arbitrate or Appointment, the voluntary arbitrator, shall set the date, time and place of the initial conference with due notice to the parties.
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Societas Spectra Legis Labor Relations Compilation Section 3. Initial Conference. During the initial conference, the parties shall be encouraged to explore all possible means of effecting a settlement of the dispute. Should the parties arrive at any agreement as to the whole or any part of the dispute, the same shall be reduced in writing and signed by the parties before the voluntary arbitrator and it shall for part of the decision. Section 4. Stipulation of Facts. In the absence of any settlement, the voluntary arbitrator shall require the parties to stipulate facts which are no longer disputable, leaving the presentation and examination of evidence and only to such facts that are still in dispute. Section 5. Simplification of Arbitrable Issue/s. The Arbitrator must see to it that he understands clearly the issue/s submitted to arbitration. If, after conferring with the parties, he finds the necessity to clarify/simplify the issue/s, he shall assist the parties in reformulation of the same. Section 6. Formulation of Ground Rules. The parties and the arbitrator shall jointly formulate and adopt the ground rules on the following: 1) 2) 3) 4) 5) 6)
schedule and frequency of conferences Rules on postponements Period and manner of submission of position papers and other pleadings Determination for the necessity of conducting clarificatory conference Period to decide the case Cost of arbitration
Section 7. Effect of Non-Appearance. In case of non-appearance of either parties for two consecutive conferences, despite due notice, the voluntary arbitrator shall terminate the conference and issue an order requiring the parties to submit their respective position papers within 10 calendar days form receipt of the said order; otherwise, the case will be deemed submitted for decision based on available records on file. Section 8. Submission of Position Papers and Other Pleadings. The voluntary arbitrator shall direct parties to submit verified position papers and other pleadings on the dates agreed upon during the initial conference. These position papers shall cover only issues and causes of action raised in the submission agreement, notice to arbitrate or appointments of voluntary arbitrator/s, and stipulation of facts, as simplified and clarified during the initial conference. These shall be accompanied by supporting evidence, if any, including affidavits of witnesses which shall take the form of direct testimonies. Section 9. Determination for the Necessity of a Clarificatory Conference including Conduct of Ocular Inspections. Immediately after the submission of the position papers and other pleadings, the voluntary arbitrator shall determine the need for holding a clarificatory conference or ocular inspection. IN which case, the parties shall be duly notified. Section 10. Recording. The proceedings before a voluntary arbitrator need not be recorded, provided however, that the arbitrator/s, in consultation with the parties, should make a written summary of the proceedings, including the substance of the evidence presented, should the parties request for the taking of record of proceedings and the testimony of witnesses, such request shall be arranged by the arbitrator and payment of the cost thereof is assumed by such requesting party or parties. Section 11. Attendance of Persons. Persons having a direct interest in the subject of arbitration shall have the right to attend any conference; but the attendance of any other person shall be at the discretion of the arbitrator. Section 12. Arbitration Conference. In the conduct of conference, the arbitrator shall provide the parties adequate opportunities to be heard. He shall control the proceedings and see to it that proper decorum is observed. He must render a ruling of the issue/s raised in the course of the proceedings. He must treat all significant aspects of the proceedings as confidential in nature unless confidentiality is waived by the parties.
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Societas Spectra Legis Labor Relations Compilation DECISION OF VOLUNTARY ARBITRATOR AND PROHIBITED MOTION; APPEAL PROCEDURE (RULE 43, RULES OF CIVIL PROCEDURE) AND RULE 45 Remedy of aggrieved party to decision of VA: motion for reconsideration within 10 days from receipt of award or decision Section 7: The decision of the voluntary arbitrator is not subject of a motion for reconsideration. (NCMB Procedural guidelines.. Rule VII) *Rule in the revised guidelines prohibiting MR- not valid From MR to CA under rule 43 filed within 15 days for questions of fact and law From a decision that has become final and executory file a TRO to enjoin the enforcement and the execution of the judgment together with petition for review under rule 43 If TRO is not granted by CA the decision will be executed but if CA reverses, there may be restitution Remedy from decision of CA is Petition for Review to SC under Rule 45 based on question of law
COMPLIANCE OF AND EXECUTION OF DECISIONS OR ORDER OF VOLUNTARY ARBITRATOR Section 8 Compliance of the decision Both parties shall comply voluntarily and faithfully with the decision. (NCMB Procedural Guidelines.. Rule VII)
Section 8. Execution of Award/Decision. - Upon motion of any interested party, the voluntary arbitrator or panel of voluntary arbitrators or the Labor Arbiter in the region where the movant resides, in case of the absence or incapacity for any reason of the voluntary arbitrator or panel of voluntary arbitrators who issued the award or decision, may issue a writ of execution requiring either the Sheriff of the Commission or regular courts or any public official whom the parties may designate in the submission agreement to execute the final decision, order or award. (Rule XIX of the Implementing Rules of Book V, as amended)
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TOPIC 15: UNFAIR LABOR PRACTICE ULPs are offenses committed by the employer or labor organization which violate the constitutional right of workers and employees to self-organization. ULP acts are inimical to the legitimate interests of both labor and management, disrupt industrial peace and hinder the promotion of healthy and stable labor-management relations. (Art. 248 of the Labor Code, as amended) Nature of Unfair Labor Practice ULP is not only a violation of the civil rights of both labor and management, but also a criminal offense against the State. Criminal ULP cases may be filed with the regular courts. No criminal prosecution may be instituted, however, without a final judgment from the NLRC that an unfair labor practice was committed.
REQUISITES First
: There is employer-employee relationship between the offender and the offended
Second: The act done is expressly defined in the Code as an act of unfair labor practice
CONDITIONS: First
: The injured party comes within the definition of employee as that term is defined by the Code
Second: The act charged as ULP must fall under the prohibitions of Art. 248 (acts of the employer) or 249 (acts of the union)
ACTS OF UNFAIR LABOR PRACTICE: EMPLOYER & UNION Article 248. Unfair labor practices of employers. It shall be unlawful for an employer to commit any of the following unfair labor practice: To interfere with, restrain or coerce employees in the exercise of their right to self-organization; To require as a condition of employment that a person or an employee shall not join a labor organization or shall withdraw from one to which he belongs; To contract out services or functions being performed by union members when such will interfere with, restrain or coerce employees in the exercise of their rights to self-organization; To initiate, dominate, assist or otherwise interfere with the formation or administration of any labor organization, including the giving of financial or other support to it or its organizers or supporters; To discriminate in regard to wages, hours of work and other terms and conditions of employment in order to encourage or discourage membership in any labor organization. Nothing in this Code or in any other law shall stop the parties from requiring membership in a recognized collective bargaining agent as a condition for employment, except those employees who are already members of another union at the time of the signing of the collective bargaining agreement. Employees of an appropriate bargaining unit who are not members of the recognized collective bargaining agent may be assessed a reasonable fee equivalent to the dues and other fees paid by members of the recognized collective bargaining agent, if such non-union members accept the benefits under the collective bargaining agreement: Provided, that the individual authorization required under Article 242, paragraph (o) of this Code shall not apply to the non-members of the recognized collective bargaining agent; To dismiss, discharge or otherwise prejudice or discriminate against an employee for having given or being about to give testimony under this Code; To violate the duty to bargain collectively as prescribed by this Code; To pay negotiation or attorney’s fees to the union or its officers or agents as part of the settlement of any issue in collective bargaining or any other dispute; or To violate a collective bargaining agreement. University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Relations Compilation The provisions of the preceding paragraph notwithstanding, only the officers and agents of corporations, associations or partnerships who have actually participated in, authorized or ratified unfair labor practices shall be held criminally liable. (As amended by Batas Pambansa Bilang 130, August 21, 1981) a.
Interfere with, restrain or coerce EEs in the exercise of their right to self organization
-
May be physical, psychological or economic
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“restrain”
b.
To require as a condition of employment that a person or an employee shall not join a labor organization or shall withdraw from one to which he belongs.
-
Yellow dog contract
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Must be an employee (exception)
c.
To contract our services or functions being performed by union members when such will interfere with, restrain or coerce employees in the exercise of their right to self-organization;
-
Contracting out per se is not ULP, it must be to interfere, etc with the right to organization in order to be ULP
d.
To initiate, dominate, assist or otherwise interfere with the formation or administration of any labor organization, including the giving of financial or other support to it or its organizers or supporters;
-
creation a company union
e.
To discriminate in regard to wagers, hours of work, and other terms and conditions of employment in order to encourage or discourage membership in any labor organization. Nothing in this Code or in any other law shall stop the parties from requiring membership in a recognized collective bargaining agent as a condition of employment, except those employees who are already members of another union at the time of the signing of the collective bargaining agreement. Employees of an appropriate collective bargaining unit who are not members of the recognized collective bargaining agent may be assessed a reasonable fee equivalent to the dues and other fees paid by members of the recognized collective bargaining agent, if such non-union members accept the benefits under the collective agreement. Provided, That the individual authorization required under Article 242, paragraph (o) of this Code shall not apply to the nonmembers of the recognized collective bargaining agent;
-
If the establishment is organized and has a CBU, can those who are not members of the CBU who benefit from the CBA be charged fees? Yes. Agency fees.
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Does the law require them to give individual authorization before the ER can deduct union dues? Yes. Exception if there is a right to check off in the CBA.
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What is the reason behind non union members which does not require them give individual written authorization? Because they are not members of the union and their obligation is not based on contract but on the principle of unjust enrichment.
f.
To dismiss, discharge, or otherwise prejudice or discriminate against an employee for having given or being about to give testimony under this Code;
g.
To violate the duty to bargain collectively as prescribed by this Code;
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If you have been chosen as the CBU and you have no CBA yet you are expected to exercise your right to collectively bargain within one year.
-
Once you have a certified bargaining union, the duty not only belongs to the union but also to the ER. It is a mutual obligation; otherwise the ER who violates the duty can be sued for ULP.
h.
To pay negotiation or attorney’s fees to the union or its officers or agents as part of the settlement of any issue in collective bargaining or any other dispute;
-
You bribe the union
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Societas Spectra Legis Labor Relations Compilation i.
To violate a collective bargaining agreement.
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Does every violation of the CBA constitute ULP? It must be gross violation
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“Gross violation” – malicious and/or flagrant violation of the economic provisions of the CBA.
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If there is a violation of non-economic provisions, what is the remedy of the labor organization? Submit to grievance machinery. If unresolved, submit to voluntary arbitration.
If strike is legal and no illegal acts are committed what is the remedy? They can submit to voluntary arbitration provided there is an arbitrable issue; or Disciplinary action against the erring employee for violation of code of discipline. If employer desires to terminate a striker, does he need clearance? NO If employer desires to file a criminal case does he need to secure clearance? NO except on arrest Chapter III UNFAIR LABOR PRACTICES OF LABOR ORGANIZATIONS Article 249. Unfair labor practices of labor organizations. It shall be unfair labor practice for a labor organization, its officers, agents or representatives: To restrain or coerce employees in the exercise of their right to self-organization. However, a labor organization shall have the right to prescribe its own rules with respect to the acquisition or retention of membership; To cause or attempt to cause an employer to discriminate against an employee, including discrimination against an employee with respect to whom membership in such organization has been denied or to terminate an employee on any ground other than the usual terms and conditions under which membership or continuation of membership is made available to other members; To violate the duty, or refuse to bargain collectively with the employer, provided it is the representative of the employees; To cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other things of value, in the nature of an exaction, for services which are not performed or not to be performed, including the demand for fee for union negotiations; To ask for or accept negotiation or attorney’s fees from employers as part of the settlement of any issue in collective bargaining or any other dispute; or To violate a collective bargaining agreement. The provisions of the preceding paragraph notwithstanding, only the officers, members of governing boards, representatives or agents or members of labor associations or organizations who have actually participated in, authorized or ratified unfair labor practices shall be held criminally liable. (As amended by Batas Pambansa Bilang 130, August 21, 1981)
TERMS SURFACE BARGAINING - an employer’s proposal which could not be offered with any reasonable expectation that they would be accepted by the union -
“going through the motions of negotiating” without any legal intent to reach an agreement.
-
Constitutes ULP
-
Committed by either employer of CBU
BLUE SKY BARGAINING - an unrealistic and unreasonable demands in negotiations by either or both labor and management, where neither concedes anything and demand the impossible. It actually is not collective bargaining at all. University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Relations Compilation FEATHERBEDDING - name given to employee practices which create or spread employment by “unnecessarily” maintaining or increasing the number of employees used, or the amount of time consumed, to work on a particular job. YELLOW DOG CONTRACT - is a promise exacted from workers as a condition of employment that they are not to belong to, or attempt to foster, a union during their period of employment. RUN-AWAY SHOP - an industrial plant moved by its owners from one location to another to escape union labor regulations or state laws. But the term is also used to describe a plant removed to a new location in order to discriminate against employees at the old plant because of their union activities.
PRESCRIPTIVE PERIOD Art. 290. Offenses Offenses prescribed under this Code and the rules and regulations issued pursuant thereto shall prescribe in three (3) years. All unfair labor practices arising from Book V shall be filed with the appropriate agency within one (1) year from accrual of such unfair labor practice; otherwise, they shall forever be barred.
PENAL PROVISION Article 288. Penalties. Except as otherwise provided in this Code, or unless the acts complained of hinge on a question of interpretation or implementation of ambiguous provisions of an existing collective bargaining agreement, any violation of the provisions of this Code declared to be unlawful or penal in nature shall be punished with a fine of not less than One Thousand Pesos (P1,000.00) nor more than Ten Thousand Pesos (P10,000.00) or imprisonment of not less than three months nor more than three years, or both such fine and imprisonment at the discretion of the court. In addition to such penalty, any alien found guilty shall be summarily deported upon completion of service of sentence. Any provision of law to the contrary notwithstanding, any criminal offense punished in this Code, shall be under the concurrent jurisdiction of the Municipal or City Courts and the Courts of First Instance. (As amended by Section 3, Batas Pambansa Bilang 70)
Can a person directly file a criminal case for ULP? -
No. Acquire first a final judgment in an administrative proceeding finding that ULP was committed.
JURISDICTION Art. 217. Jurisdiction of Labor Arbiters and the Commission (a) Except as otherwise provided under this Code the Labor Arbiters shall have original and exclusive jurisdiction to hear and decide, within thirty (30) calendar days after the submission of the case by the parties for decision without extension, even in the absence of stenographic notes, the following cases involving all workers, whether agricultural or non-agricultural: 1.
Unfair labor practice cases;
2.
Termination disputes;
3.
If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions or employment;
4.
Claims for actual, moral, exemplary and other forms of damages arising from the employer-employee relations;
5.
Cases arising from any violation of Article 264 of this Code, including questions involving the legality of strikes and lockouts;
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Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, all other claims, arising from employer-employee relations, including those of persons in domestic or household service, involving an amount exceeding five thousand pesos (5,000) regardless of whether accompanied with a claim for reinstatement.
(a) The Commission shall have exclusive appellate jurisdiction over all cases decided by the Labor Arbiters. (b) Cases arising from the interpretation of collective bargaining agreements and those arising from the interpretation or enforcement of company personnel policies shall be disposed of the Labor Arbiter by referring the same to the grievance machinery and voluntary arbitration as may be provided in said agreements.
PROCEDURE Art. 247. Concept of unfair labor practice and procedure for prosecution thereof Unfair labor practices violate the constitutional right and workers and employees to self-organization, are inimical to the legitimate interests of both labor and management, including their right to bargain collectively and otherwise deal with each other in an atmosphere of freedom and mutual respect, disrupt industrial peace and hinder the promotion of healthy and stable labor-management relations. Consequently, unfair labor practices are not only violations of the civil rights of both labor and management but are also criminal offenses against the State which shall be subject to prosecution and punishment as herein provided. Subject to the exercise by the President or by the Secretary of Labor Employment of the powers vested in them by Articles 263 and 264 of this Code, the civil aspects of all cases involving unfair labor practices, which may include claims for actual, moral, exemp lary and other forms of damages, attorney’s fees and other affirmative relief, shall be under the jurisdiction of the Labor Arbiters. The Labor Arbiters shall give utmost priority to the hearing and resolution of all cases involving unfair labor practices. They shall resolve such cases within thirty (30) calendar days from the time they are submitted for decision. Recovery of civil liability in the administrative proceedings shall bar recovery under the Civil Code. No criminal prosecution under this Title may be instituted without a final judgment, finding that an unfair labor practice was committed, having been first obtained in the preceding paragraph. During the pendency of such administrative proceedings, the running of the period of prescription of the criminal offense herein penalized shall be considered interrupted: Provided, however, That the final judgment in the administrative proceedings shall not be binding in the criminal case nor be considered as evidence of guilt but merely as proof of compliance of the requirements herein set forth.
RELIEF AGAINST UNFAIR LABOR PRACTICES 1.
CEASE AND DESIST ORDER
If the Court after investigation finds that the person named in the complaint has engaged or is engaging in any unfair labor practice, the Court shall state its finding of fact and shall issue or cause to be served upon such person an order requiring him to cease and desist from such unfair labor practice. 2.
AFFIRMATIVE ORDER
The Court does not only have the power to issue negative or prohibitive orders but also affirmative or positive orders. The Court in addition to a cease and desist order may issue an affirmative order to the respondent to reinstate the said employee with back pay from the date of the discrimination. 3.
ORDER TO BARGAIN; MANDATED CBA
When an employee has failed or refused to bargain with the proper bargaining agent of his employees, the Court may, in addition to the usual cease and desist orders, issue an affirmative order to compel the respondent to “bargain” with the bargaining agent. 4.
DISESTABLISHMENT
Where the employer had initiated, dominated or assisted in or interfered with the formation or establishment of any labor organization or contributed financial or other support to it, the Court may issue, in addition to a cease and desist order, an order directing the employer to withdraw all recognition from the dominated labor union and to disestablish the same.
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