Documente Academic
Documente Profesional
Documente Cultură
Compilation
Based on the outline by: Atty. Jefferson Marquez
VOLUME 2
UPDATED AS OF: SY: 2014 - 2015
Table of Contents
TOPIC 12: RIGHT TO SELF-ORGANIZATION ...................................................................................................................... 6
UNIONISM, POLICY OF STATE, CONSTITUTIONAL GUARANTEE ..............................................................................................................................................6
SCOPE AND NATURE OF EMPLOYEES 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
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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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The Constitution contains provisions which promote unionism and one of the provisions include:
1.
2.
the right to collective bargaining and negotiations; and (Art. 243; 244)
3.
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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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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
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 Workers 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
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.
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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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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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.
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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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
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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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)
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
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)
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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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.
4.
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
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)
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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)
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)
5.
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 employers 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.
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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.
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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 wont be a labor union if the workers do not feel the necessity
to organize themselves.
affiliation of independent union(which has a legal personality separate and distinct from the national federation)
with national union or federation
2.
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
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
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 chapters officers, their addresses, and the principal office of the chapter, and
The chapters constitution and by-laws: Provided, that where the chapters 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
The
report
of
affiliation
of
independently registered labor unions
with a federation or national union shall
be accompanied by:
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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.
(b) The chapters constitution and bylaws: Provided, That where the
chapters 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.
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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.
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)
*Workers 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 workers 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.
Appeal To whom:
Mode of appeal:
Memorandum of appeal filed with the Bureau or Regional office that issued the denial
Prescriptive Period
Grounds to appeal:
Period to decide
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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
(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.
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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.
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
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Inclusion or membership in a union depends on the unions 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 unions 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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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.
2.
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
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8.)Hearing
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
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A method agreed between the management and the representative union of deducting from an employees 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 unions 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, attorneys 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 employees agent
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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 federations 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 federations 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 federations 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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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.
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.
The CBA continues to bind the members of the new or disaffiliated and independent union up to the CBAs 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
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2.
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 workers association. This includes:
1.
2.
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.
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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 Unions 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.
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not a member of a subversive organization (however, there is no longer any law which declared an organization
subversive)
c.
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)
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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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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.
b.
b.
name, address and other personal circumstances of the respondents or the persons charged;
c.
d.
e.
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.
h.
i.
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.
5.
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Hearing
7.
8.
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
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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.
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This presupposes that the labor organization has been duly registered.
The legal relation that is established is that of principal-agent. Principal: Members, Agent: the organization.
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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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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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.
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.
-
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.
PETITION
Who may
file
2)
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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
2)
3)
4)
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)
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3)
4)
5)
6)
5)
6)
b.
c.
b.
c.
7)
unit;
7)
8)
1)
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
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Hearings
Determination of:
1)
2)
2)
3)
3)
4)
Contents of 1)
Order
Granting the
2)
Petition
1)
2)
3)
4)
3)
4)
5)
6)
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1)
2)
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Unorganized Organization
Hearing
Officer
Procedure
Pre-election
Conference
Organized Organization
Election Officer
1)
2)
Election Officer
1)
3)
3)
2)
3)
4)
4)
1)
2)
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2)
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.
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b.
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/chapters 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.
Regional Office which issued the petitioning unions 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.
b.
c.
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.
e.
f.
1)
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.
g.
For organized, signature of at least 25% of all employees in the bargaining unit
h.
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Any time.
a.
b.
PROCEDURE
1.
The petition for certification election will be raffled by the Regional Director to the Med-Arbiter.
2.
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.
-
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
b.
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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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 Departments 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.
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.
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 ERs 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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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
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.
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.
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.
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.
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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.
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.
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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)
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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
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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)
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
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?
-
2.
3.
4.
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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.
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.
b.
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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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.
2.
3.
4.
5.
6.
7.
Duration of contract
8.
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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guiding principles stated in long and broad terms expressing the philosophies and beliefs of the management concerning the
personnel
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
-
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 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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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.
The complaint shall be referred by the Labor Arbiter to the grievance machinery.
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.
Quasi-judicial
If the VA renders a decision, when does the decision become final and executory?
-
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.
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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4.
5.
6.
7.
8.
No.
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...
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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.
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
2.
3.
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.
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If there is a CBA containing both economic and non economic provisions, would the violations of the CBA result to ULP?
-
Economic provisions
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 employers 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.
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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Yes.
Yes, Article 231 (as provided for in the preceding page), with the DOLE
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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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.
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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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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.|||
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.
4.
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 unions request.
Consequence if employer refuses to furnish the FS: constitutes ULP
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Discipline of 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.
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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)
available to a legitimate labor organization which has not been certified or recognized bargaining union on ground of ULP
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2.
Bargaining deadlock
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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
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KINDS OF STRIKE
1.
2.
3.
AS TO EXTENT
a.
b.
LOCAL OR PARTICULAR STRIKE one undertaken by workers in a particular enterprise, locality, or occupation.
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.
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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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.
2.
3.
4.
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.
STRIKE
Any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute.
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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The names and addresses of the employer and the union involved;
b.
c.
d.
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.
b.
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.
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
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2.
3.
4.
5.
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
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.
The strike vote report is submitted to the NCMB at least 7 days prior to the intended date of strike.
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
To give the parties time to explore the possibilities of resolving disagreements in order to avoid a strike
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Conducted by notice to the NCMB at least 24 hours before the strike vote
Labor Arbiter
STRIKEABLE ISSUES
a.
bargaining deadlock
b.
NON-STRIKEABLE ISSUES
a.
Intra-union disputes
b.
Inter-union disputes
c.
d.
e.
Wage distortion
f.
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?
-
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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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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
Hospital Sector;
d.
e.
Water supply services, to exclude small water supply service such as bottling and refilling stations;
f.
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
What is the effect if the SOLE assumes jurisdiction over an industry which is NOT indispensable to national interest?
-
It is a void assumption.
In what instances may the secretary of labor assume jurisdiction in an industry indispensible to national interest?
1.
2.
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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.
Yes.
What is the role of the PNP during strikes and lockouts? What are the specific acts prohibited?
-
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?
-
Page 88
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2.
2.
3.
without first obtaining & reporting the necessary strike or lockout vote.
2.
3.
during the pendency of cases involving the same grounds for the strike/lockout.
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.
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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
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.
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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
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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)
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 SOLEs 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)
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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 its 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 theres a need for renegotiation? particularly economic.
-because theres no stability so that the needs of the workers are addressed
-in most of the cases , its 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 cant agree?
-no hard and fast rule, submit themselves to arbitration
-theres 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
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Strike
2.
3.
Buycott
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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.
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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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Does the law allow individual worker in an organized establishment to present their grievance directly to the ER?
-
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
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?
-
Yes
No. Because the LMC is limited only to areas outside or not covered by the jurisdiction of collective bargaining.
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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.
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.
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(b)
(c)
(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.
2.
The common purpose is promotion of productivity and industrial peach through labor education.
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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 companys 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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Grievance procedure
Enforcement of compliance order- an act of the SOLE (Thru RDs or other representatives) in the exercise of his visitorial and
enforcement power;
Certification of bargaining representatives- c/- Med-Arbter
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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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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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Voluntary
Compulsory
Unlike a conciliatory or mediator, an arbitrator is a judge; he makes decisions and awards that the parties must accept.
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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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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.
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
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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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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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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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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REQUISITES
First
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)
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Interfere with, restrain or coerce EEs in the exercise of their right to self organization
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.
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;
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.
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.
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.
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 attorneys fees to the union or its officers or agents as part of the settlement of any issue in collective
bargaining or any other dispute;
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Does every violation of the CBA constitute ULP? It must be gross violation
Gross violation malicious and/or flagrant violation of the economic provisions of the CBA.
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 attorneys 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 employers 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
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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)
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.
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, attorneys 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.
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.
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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