Sei sulla pagina 1di 7

Mifaa 1 Labor Relations

TITLE VII COLLECTIVE BARGAINING AND ADMINISTRATION OF AGREEMENT ART. 260 [250]. PROCEDURE IN COLLECTIVE BARGAINING 1. Party shall serve a WRITTEN NOTICE to the other party with a statement of its proposals. - the other party shall make a reply NOT LATER THAN 10 calendar days from receipt of such notice 2. Should differences arise on the basis of such notice and reply: - Either party may REQUEST FOR A CONFERENCE which shall begin not later than 10 calendar days from the date of request 3. DISPUTE NOT SETTLED: the Board shall intervene upon request of either or both parties. - the Board shall have power to issue subpoenas requiring attendance of the parties to such meetings - Parties shall have the DUTY TO PARTICIPATE fully in the conciliation meetings 4. CONCILIATION PROCEEDINGS: the parties are prohibited in doing any act, which may disrupt or impede the early settlement of disputes 5. The Board shall encourage the parties to settle the disputes AMICABLY and encourage the parties to SUBMIT their case to a VOLUNTARY ARBITRATOR COLLECTIVE BARGAINING - Process of formulating and administering at the enterprise a binding collective contract between the employer and employees. - Bargaining Representative should first be identified (Articles 267 & 268) Article 258(g) violating the duty to bargain is considered an unfair labor practice

ART. 261 [251]. DUTY TO BARGAIN COLLECTIVELY IN THE ABSENCE OF COLLECTIVE BARGAINING AGREEMENTS. - it shall be the duty of EMPLOYER and the representative of the EMPLOYEES to bargain collectively. ART. 262 [252]. 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. - Employer is not under any legal duty to initiate contract negotiation. Jurisdictional Preconditions of Collective Bargaining 1. Possession of the status of majority representation of the employees representative in accordance with any of the means of selection or designation provided by the LC 2. Proof of majority representation 3. Demand to Bargain under Art. 260 - if these are present, the collective bargaining should begin within the certification year (12 months after determination and certification of the Employees exclusive bargaining representative. Situation 1: WHEN NO CBA YET Duty to Bargain performance of an obligation to meet and convene. Mutual Obligation between Er and Ees UNION. MEETING and CONVENING for the purpose of: 1. Negotiating on: - wages - hours of work - all other terms and conditions including proposals for adjusting grievances or questions in such agreement

2. Executing a CONTRACT incorporating such agreement if requested by either party. Compliance must be prompt, expeditious, and in good faith. Parties are NOT COMPELLED to: - agree to a proposal - make a concession Situation 2: EXISTING CBA ART. 263 [253]. DUTY TO BARGAIN COLLECTIVELY, when there is an existing CBA - When there is an existing CBA, the DUTY TO BARGAIN collectively shall also mean that neither party shall terminate nor modify such agreement during its lifetime. - A party can serve a WRITTEN NOTICE to TERMINATE OR MODIFY the agreement at least 60 DAYS prior to its expiration date. - DUTY OF THE PARTIES: keep the status quo and 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. Violation of Duty to Bargain 1. Failure or refusal to meet and convene 2. Evading the purposes of bargaining 3. Not observing good faith 4. Grossly violating the economic provisions of the CBA Expeditious Bargaining - Art. 261 allows the parties to devise a more expeditious manner of collective bargaining, but NOT evade the bargaining duty. Bargaining in Good Faith - parties should deal with open and fair mind and sincerely endeavor to overcome the differences between them to establish free flow of employment relations. - Bargaining in BAD FAITH is unfair labor practice. Valid reason for STRIKE/LOCKOUT.

Deadlock When the parties bargaining in good faith, fail to resolve the issue despite efforts or attempts to do so and there are no definite plans for further efforts to harmonize their dissimilar positions. Boulwarism making a proposal, which is not subject to bargaining rendering a union ineffective. ULP. Dealing with the union through the employees rather than dealing with the employees through the union. Disclosure of Information During bargaining, employee representatives may be entitled to wage information and related data in order to negotiate effectively over the rates of compensation. Contents of CBA 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 Modification 60 days before CBA expires Either party may notify the other of its desire to terminate or modify the contract. UPWARD or DOWNWARD revision Ratification & Registration The agreement negotiated by the employees bargaining agent should be ratified or approved by the majority of all the workers in the bargaining unit, not just the members of the bargaining union.

Mifaa 3 Labor Relations

POST & SWORN STATEMENT CBA SHOULD BE POSTED for at least 5 days in 2 conspicuous places in the establishment before ratification - to inform the workers of its provisions - SWORN STATEMENT of the union secretary, attested to by the union president, that the CBA had been duly posted and ratified. - Mandatory requirements to be submitted to the DOLE attached to the CBA. - After ratification, the CBA should be registered with the BLR or DOLE Regional Office that has jurisdiction over the establishment. - Should be done within 30 calendar days from execution of the agreement. Centralized or Decentralized Bargaining DECENTRALIZED is the common method here in the Phil. - CBA is concluded in a particular enterprise and binds only that enterprise. - Centralized bargaining is also possible because provision expressly disallows it. Ex. By geographical location; industry line; grouping of employers D.O. 40-03 introduced it in its provisions on multiemployer bargaining which is optional for employers and unions. ART. 264 [253-A]. TERMS OF CBA. EFFECTIVITY DATE & DURATION OF TERM NEW CBA the parties may agree on its effectivity date. EXTENSION/RENEGOTIATION effectivity date will retroact on the date after it expires if the renegotiation ends within 6 months after expiration. Renegotiation ends after 6 months from expiration, NO automatic retroaction

Effectivity date of the new contract will be left to the parties to agree on. Does not apply to a CBA resulting from an arbitration award

Automatic Renewal & Self-Continiuty When the parties fail to renew or extend the expired CBA, parties shall keep the status quo and 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. Duration of the CBA 5 YEARS representation aspect Not more than 3 YEARS for all other provisions Representation Aspect - the identity and majority status of the union that negotiated the CBA (Exclusive Bargaining Representative) All Other Provisions - Economic & Noneconomic provisions May the parties agree on a period longer than 3 years? - Yes, depending on the circumstances. Ex. The PAL case where there was a 10-year suspension of the CBA and union entitlement to 3 seats in the PAL board of directors. SC ruled that given the peculiar circumstances of the case, the 10-year suspension of the CBA was valid and not in conflict with Art 264. ART. 265 [254]. INJUCTION PROHIBITED. No-Injunction Policy on LABOR DISPUTES - there must be no government interference because labor disputes must be resolved by the parties themselves confined only between them. - Injunction may be issued in Art. 278 dealing with Prohibited Activities in the course of Srike/Lockout

In national interest cases, injunction may be issued automatically by the Secretary of Labor directed against the strike itself and is meant to protect public welfare.

ART. 266 [255]. EXCLUSIVE BARGAINING REPRESENTATION AND WORKERS PARTICIPATION IN POLICY & DECISIONMAKING Exclusive Bargaining Representative - The labor organization designated or selected by the majority of the employees in an appropriate CB Unit - However, individual employee or group shall have the right at any time to present grievances to their employer - The UNION chosen by the CBU to represent them in bargaining with the employer Appropriate CBU COMMONALITY OF INTEREST TEST: whether it will best assure to all employees the exercise of their CB rights Employees RIGHT TO PARTICIPATE Guaranteed under the Constitution and reiterated as a state policy under Art. 218(g) and restated in Art.266[255]. EXTENT: does not carry management rights; may suggest and express opinions but NOT DECIDE. Labor-Management Councils - Elected by at least the majority of all employees in said establishment (to maintain its integrity) - To participate in policy and decision-making processes that will affect their rights, benefits and welfare - Can serve as a forum where management and employees may air their concerns - Communication Mechanism to maintain industrial peace CBU not the same as UNION - CBU is for COLLECTIVE BARGAINING - Refers to a group of employees sharing mutual interests within a given employer unit - CBU serves as the election constituency in the employer enterprise; BIGGER than the union

Within one UNIT, there may be several UNIONS, but only ONE UNION may act as the bargaining representative of the WHOLE UNIT Preference of the Law: one bargaining unit all the employees in one enterprise except R&F and Supervisory should constitute different units. Scope of Membership of BARGAINING UNIT 1. employees to be represented in bargaining 2. employees who will be covered by the resulting CBA 3. employees who will vote and decide certain actions - in a Certification Election, the voters are the unit (Arts. 266 & 267) - in strike voting, the voters are only the members of the union (Art. 277[f]) - in CBA ratification, the voters are the unit not just the union members (Art. 236) ART. 267 [256]. REPRESENTATION ISSUE IN ORGANIZED ESTABLISHMENTS. - through certification, run-off or consent election 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) 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 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

Mifaa 5 Labor Relations

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." ART. 268 [275] PETITIONS IN UNORGANIZED ESTABLISHMENTS VR/CE 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) - 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. Voluntary Recognition (VR) - Enterprise being unionized for the first time; AND - There is ONLY ONE legitimate labor organization seeking recognition to represent the bargaining unit - Expedites the bargaining process - Bars a Petition for a Certification Election because it already makes the union the exclusive bargaining agent. - Effect of Recognition will LAPSE if the employer and union fail to conclude and register a CBA within 1 YEAR from VR

SAFEGUARDS OF THE LAW: 1. Employer & Union President should submit to the Regional Office a JOINT STATEMENT attesting to the VR. - Under oath - submitted to the Regional Office within 30 days following recognition 2. The JOINT STATEMENT should state the: - Approximate number of employees in the bargaining unit - The names and signatures of at least majority of the members supporting the VR - Parties should state that there is no other legitimate labor organization operating within the bargaining unit. Certification Election (CE) - VR did not or cannot happen - Union selection through election should take place - Serves as the official, reliable and democratic basis for the Bureau to determine and name the union that shall represent the employees in bargaining with the employer Petition for Certification Election (PCE) - may take place in an organized (Art. 267) or unorganized (Art. 268) company. Unorganized/Nonunionized Company - a CE may be held ANYTIME after DOLEs approval of a petition for certification election EXCEPT within 12 months of previous CE - PCE filed, the Med Arbiter SHALL AUTOMATICALLY order the conduct of a CE; order cannot be appealed. - Employer cannot voluntarily recognize another union and sign a CBA with it (ULP) Organized Company - CE CANNOT be held anytime - PCE can only be filed within the freedom period (last 60 days of the 5th year of the CBA)

PCE will be filed by the legitimate challenger union who wants to replace the incumbent union. - filed with the Med Arbiter in the DOLE Regional Office - supported by a WRITTEN CONSENT of at least 25% of the employees in the bargaining unit: to indicate a sizeable membership to possibly win and replace the incumbent union. NO 25% = nuisance. - Withdrawals of support BEFORE the filing of the petition are presumed voluntary; AFTER the filing, involuntary. - After receipt of the PCE, Med Arbiter calls the parties to a preliminary conference to identify the bargaining unit to be represented & identify legal bars/objections, if any. - If the unions agree to hold a CONSENT ELECTION, the PCE will no longer be heard; IF NOT, the med arbiter may grant/deny the PCE; appealable to the Secretary of Labor CONSENT ELECTION - an election voluntarily agreed upon by the contending unions to determine which union carries the majority of the workers in the appropriate collective bargaining unit. ELECTION BARS - bars or blocks the holding of a CE 1. Certification Year Bar No CE may be held within 12 months from a previous CE or a consent/run-off election or VR by the employer; ONLY 1 CE allowed in 12 months 2. Deadlock Bar No CE may be held if there is a pending bargaining deadlock submitted to conciliation or arbitration or has become the subject of a valid notice of strike or lockout. 3. Contract Bar refers to the existence of a CBA; PCE may only be filed within the freedom period last 60 days of the 5th year of the CBA, parties may renegotiate a CBA unless ordered not to do so. QUESTIONS OF UNION LEGITIMACY - does not suspend hearing the PCE - mere pendency of a petition to cancel the unions registration is not reason enough to dismiss a PCE

PCE may be dismissed only if the unions legal personality has been revoked or cancelled WITH FINALITY. - Objection to the legitimacy is estopped or barred if holding the CE was by agreement of the parties. By such agreement, the legal personality of the petitioner union is deemed acknowledged. QUESTIONS OF EXISTENCE OF ER-EE RELATIONSHIP - Not a reason to dismiss the PCE. - Shall be resolved in the decision on the PCE, only for the purpose of such CE. - Does not prevent raising the issue in illegal dismissal VOTERS - all employees within the bargaining unit at the time of the issuance of the order for conducting CE shall be eligible to vote - including a dismissed employee whose dismissal is being contested in a pending case - only requires membership in the BARGAINING UNIT, not in the union. Required Vote - Majority (50%+1) of the VALID VOTES cast. - If no union gets the majority, none of them wins. - Run-Off/Repeat Election if the combined votes for the contending unions total 50% of the votes cast. REMATCH of TOP UNIONS - should be held in 10 days unless an election protest has been filed and needs to be resolved first. Protest should be formalized before the Med-Arbiter within 5 days from the close of proceedings; otherwise deemed waived/abandoned. REQUISITES FOR A RUN-OFF ELECTION: 1. Enough turn-out of voters (50%+1 of CBU voted) 2. At least 2 contending unions (Highest & Next Highest) 3. No union obtained the majority vote 4. Votes for the unions, added, equal at least 50% of casted votes 5. No pending challenge or objection to the election

Mifaa 7 Labor Relations

FAILURE OF ELECTION - 50%+1 of qualified voters not attained - Certification Year Bar will not apply - Declared by the Election Officer in the minutes of the election proceedings. - A MOTION may be filed for the immediate holding of a remedial certification election or a consent election within 6 months from date of declaration of failure of election. - Remedial Election refers to a CE following the failure of the preceding election. - within 24 hours from receipt of the motion, Election Officer shall immediately schedule the conduct of another certification or consent election within 15 days from receipt of the motion. - Notice of Certification Election in 2 most conspicuous places in the establishment at least 10 days prior to the election. CERTIFICATION ELECTION vs. UNION ELECTION - Union Election SELECTS the OFFICERS of the Union; Certification Election SELECTS the PARTICULAR UNION that will represent the bargaining unit. - UE: only members of the union must vote; CE: all employers of the bargaining unit may vote regardless of union membership - UE: held in accordance with the unions constitution and by-laws; CE: held in accordance with the order of the MedArbiter upon petition of a proper party, usually a union. ART. 269[258]. WHEN AN EMPLOYER MAY FILE PETITION. - when requested to bargain collectively, an employer may file a petition. - If there is no existing CBA, CE may be ordered by the Bureau - Shall be decided within 20 working days

ART. 270[258-A]. EMPLOYER AS BYSTANDER. - In all cases, the employer shall NOT be considered a party to a PCE. - Participation of Employer, limited to: 1. being notified/informed of petition of such nature 2. submitting the list of employees during the pre-election conference. It dispels any doubt as to the standing of the employer in a PCE. He is merely a bystander. ART. 271[259]. APPEAL FROM CERTIFICATION ELECTION ORDERS. - Any party may appeal directly to the Secretary of Labor on the ground that the rules and regulations or parts thereof established by the Secretary of Labor for the conduct of the election have been violated. - Such appeal shall be decided within 15 calendar days. APPEAL - within 10 days from receipt of order/decision - any grant or denial of a PCE is appealable - Except ORDER to hold a CE in an unorganized bargaining unit. The law wants the ununionized unionized. - Where no appeal is filed within 10 days, the Med-Arbiter shall enter the finality of the order/decision in the records and transmit them to the Regional Director. - REPLY to an Appeal may be filed within 10 days from receipt of memorandum of appeal, directly with the Secretary of Labor. - Decision of the Secretary shall become final and executor after 10 days from receipt by the parties. NO MR. - Within 48 hours from notice of receipt of decision, the office of the Secretary shall remand the entire records to the Regional Office for implementation. - Implementation shall proceed UNLESS restrained by the appropriate court (CA) [DO No. 40-03 Rule VIII Sec. 22]