Labor Relations Compilation VOLUME 2 Compiled by: Spectra
UPDATED AS OF: SY: 2014 – 2014 – 2015 2015 2nd Sem
Societas Spectra Legis Labor Relations Compilation
Table of Contents TOPIC 12: RIGHT TO SELF-ORGANIZATION ............................................................................................................................ 6 UNIONISM, POLICY OF STATE, CONSTITUTIONAL GUARANTEE ...................................................................................................................................... 6 SCOPE AND NATURE OF EMPLOYEE’S RIGHTS 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 FORMATION OF UNION: WHO ARE QUALIFIED AND DISQUALIFIED............. ............. ............. ............. ............. ............. .... 11 DOCTRINE OF NECESSARY IMPLICATION ...................................................................................................................................................................... 14 CASE: SMC Supervisors and Exempt Union vs. Hon. Laguesma ...................... ....................................... ................................. ................................. ................................. ................................. ................................. .................................. .................................. .................. .. 15
REGISTRATION OF UNION; JURISDICTION AND PROCEDURE, JURIDICAL PERSONALITY ............................................................................................... 15 JURISDICTION AND PROCEDURE .................................................................................................................................................................................. 21 RIGHTS OF LEGITIMATE LABOR ORGANIZATION .......................................................................................................................................................... 23 RIGHTS AND DUTIES OF UNION MEMBERS & NON-UNION MEMBERS (ART. 241) AND QUALIFICATIONS QUALIFICATIONS ............. ............. ............. ............. ............. ..24 RIGHTS .......................................................................................................................................................................................................................... 25 DUTIES .......................................................................................................................................................................................................................... 27 ELECTION OF UNION OFFICERS AND QUALIFICATIONS ................................................................................................................................................ 27 CHECK- OFF PROVISION (ART. 113(B)) .......................................................................................................................................................................... 31 DISAFFILIATION: MEMBERS & UNION .......................................................................................................................................................................... 32 INTRA- UNION & INTER-UNION DISPUTES: JURISDICTION OF BLR (ART. 226); OTHER MATTERS ................................................................................. 33 CANCELLATION CANCELLATION OF UNION REGISTRATION; REGISTRATION; GROUNDS; JURISDICTION JURISDICTION & PROCEDURE ......................... ............. ............. ............. ............. ............. ...... 35 INQUIRY INTO UNION’S FINANCIAL ACTIVITIES: VISITORIAL POWER (ART. 274) .......................................................................................................... 40 OTHER POWER OF SECRETARY OF LABOR (ART. 273) ................................................................................................................................................... 41 OTHER SPECIAL LAWS: .................................................................................................................................................................................................. 42 RA 7916, CHAP. 4 (SPECIAL ECONOMIC ZONE ACT ACT OF 1995) .................... ............. ............. ............. ............. .............. ............ ............. .............. .......... 42 PART I, RULE II, SEC 2 .................................................................................................................................................................................................... 42 PART IX, RULE XXIII, SEC. 1-7 ............ ............. ............. ............. ............. .............. ............. ............. ............. ............. ............. .............. ............ ............. ..42 ATTY. MARQUEZ’ DISCUSSION DISCUSSION ..................................................................................................................................................................................... 43
TOPIC 13: RIGHTS OF LEGITIMATE LABOR ORGANIZATION ................................................................................................ 53 RIGHTS IN GENERAL GENERAL (ART. 242, AS AMENDED) ............ ............. .............. ............. ............. ............. ............. ............. .............. ............ ............. ............. 53 EXCLUSIVE BARGAINING AGENT................................................................................................................................................................................... 54 PURPOSE OF AN EXCLUSIVE BARGAINING AGENT ........................................................................................................................................................ 54 CERTIFICATION PROCESS: PROCESS: CERTIFICATION ELECTION AND AND VOLUNTARY RECOG RECOGNITION NITION ............. ............. ............. ............. ............. ............. ............. .... 54 RULES IN THE CONDUCT CONDUCT OF CERTIFICATION CERTIFICATION ELECTION ELECTION (UNDER DO 40-03) ............. ............. ............. .............. ............. ............. ............. ............. ........ 54 VOLUNTARY RECOGNITION .......................................................................................................................................................................................... 56 CERTIFICATION ELECTION............. ............. ............. ............. ............. ............. ............. ............. .............. ............. ............. ............. ............. ............. ...... 57 WHO MAY FILE FOR CERTIFICATION ELECTION ............................................................................................................................................................ 63 PRINCIPLE OF PRECLUSION OR COLLATERAL ATTACK ................................................................................................................................................... 69 INCLUSION-EXCLUSION PROCEEDINGS......................................................................................................................................................................... 69 CONTRACT BAR RULE ................................................................................................................................................................................................... 69 EXCEPTIONS TO THE CONTRACT BAR RULE .................................................................................................................................................................. 69 DEADLOCK BAR RULE ................................................................................................................................................................................................... 70
Societas Spectra Legis Labor Relations Compilation
Table of Contents TOPIC 12: RIGHT TO SELF-ORGANIZATION ............................................................................................................................ 6 UNIONISM, POLICY OF STATE, CONSTITUTIONAL GUARANTEE ...................................................................................................................................... 6 SCOPE AND NATURE OF EMPLOYEE’S RIGHTS 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 FORMATION OF UNION: WHO ARE QUALIFIED AND DISQUALIFIED............. ............. ............. ............. ............. ............. .... 11 DOCTRINE OF NECESSARY IMPLICATION ...................................................................................................................................................................... 14 CASE: SMC Supervisors and Exempt Union vs. Hon. Laguesma ...................... ....................................... ................................. ................................. ................................. ................................. ................................. .................................. .................................. .................. .. 15
REGISTRATION OF UNION; JURISDICTION AND PROCEDURE, JURIDICAL PERSONALITY ............................................................................................... 15 JURISDICTION AND PROCEDURE .................................................................................................................................................................................. 21 RIGHTS OF LEGITIMATE LABOR ORGANIZATION .......................................................................................................................................................... 23 RIGHTS AND DUTIES OF UNION MEMBERS & NON-UNION MEMBERS (ART. 241) AND QUALIFICATIONS QUALIFICATIONS ............. ............. ............. ............. ............. ..24 RIGHTS .......................................................................................................................................................................................................................... 25 DUTIES .......................................................................................................................................................................................................................... 27 ELECTION OF UNION OFFICERS AND QUALIFICATIONS ................................................................................................................................................ 27 CHECK- OFF PROVISION (ART. 113(B)) .......................................................................................................................................................................... 31 DISAFFILIATION: MEMBERS & UNION .......................................................................................................................................................................... 32 INTRA- UNION & INTER-UNION DISPUTES: JURISDICTION OF BLR (ART. 226); OTHER MATTERS ................................................................................. 33 CANCELLATION CANCELLATION OF UNION REGISTRATION; REGISTRATION; GROUNDS; JURISDICTION JURISDICTION & PROCEDURE ......................... ............. ............. ............. ............. ............. ...... 35 INQUIRY INTO UNION’S FINANCIAL ACTIVITIES: VISITORIAL POWER (ART. 274) .......................................................................................................... 40 OTHER POWER OF SECRETARY OF LABOR (ART. 273) ................................................................................................................................................... 41 OTHER SPECIAL LAWS: .................................................................................................................................................................................................. 42 RA 7916, CHAP. 4 (SPECIAL ECONOMIC ZONE ACT ACT OF 1995) .................... ............. ............. ............. ............. .............. ............ ............. .............. .......... 42 PART I, RULE II, SEC 2 .................................................................................................................................................................................................... 42 PART IX, RULE XXIII, SEC. 1-7 ............ ............. ............. ............. ............. .............. ............. ............. ............. ............. ............. .............. ............ ............. ..42 ATTY. MARQUEZ’ DISCUSSION DISCUSSION ..................................................................................................................................................................................... 43
TOPIC 13: RIGHTS OF LEGITIMATE LABOR ORGANIZATION ................................................................................................ 53 RIGHTS IN GENERAL GENERAL (ART. 242, AS AMENDED) ............ ............. .............. ............. ............. ............. ............. ............. .............. ............ ............. ............. 53 EXCLUSIVE BARGAINING AGENT................................................................................................................................................................................... 54 PURPOSE OF AN EXCLUSIVE BARGAINING AGENT ........................................................................................................................................................ 54 CERTIFICATION PROCESS: PROCESS: CERTIFICATION ELECTION AND AND VOLUNTARY RECOG RECOGNITION NITION ............. ............. ............. ............. ............. ............. ............. .... 54 RULES IN THE CONDUCT CONDUCT OF CERTIFICATION CERTIFICATION ELECTION ELECTION (UNDER DO 40-03) ............. ............. ............. .............. ............. ............. ............. ............. ........ 54 VOLUNTARY RECOGNITION .......................................................................................................................................................................................... 56 CERTIFICATION ELECTION............. ............. ............. ............. ............. ............. ............. ............. .............. ............. ............. ............. ............. ............. ...... 57 WHO MAY FILE FOR CERTIFICATION ELECTION ............................................................................................................................................................ 63 PRINCIPLE OF PRECLUSION OR COLLATERAL ATTACK ................................................................................................................................................... 69 INCLUSION-EXCLUSION PROCEEDINGS......................................................................................................................................................................... 69 CONTRACT BAR RULE ................................................................................................................................................................................................... 69 EXCEPTIONS TO THE CONTRACT BAR RULE .................................................................................................................................................................. 69 DEADLOCK BAR RULE ................................................................................................................................................................................................... 70
Societas Spectra Legis Labor Relations Compilation CERTIFICATION YEAR RULE ........................................................................................................................................................................................... 70 VALID ELECTION AND DOUBLE MAJORITY RULE ........................................................................................................................................................... 70 FAILURE OF ELECTION .................................................................................................................................................................................................. 71 RUN-OFF ELECTIONS .................................................................................................................................................................................................... 71 PRINCIPLE OF FAIR REPRESENTATION .......................................................................................................................................................................... 71 SCOPE: BARGAINING UNIT ........................................................................................................................................................................................... 71 JURISDICTIONAL PRECONDITIONS TO COLLECTIVE BARGAINING ................................................................................................................................. 72 DUTY TO BARGAIN WITH OR WITHOUT A CBA ............................................................................................................................................................. 72 FOUR (4) FORMS OF VIOLATION OF DUTY TO BARGAIN ............................................................................................................................................... 73 RIGHT TO COLLECTIVE BARGAINING ............................................................................................................................................................................ 74 SINGLE ENTERPRISE BARGAINING/DECENTRALIZED BARGAINING ............................................................................................................................... 74 MULTI-EMPLOYER BARGAINING/INDUSTRY-WIDE BARGAINING ................................................................................................................................. 74 WHEN TO BARGAIN ...................................................................................................................................................................................................... 76 CONTENTS OF CBA ....................................................................................................................................................................................................... 76 GRIEVANCE MACHINERY – MACHINERY – ........................................................................................................................................................................................... 76 UNION SECURITY CLAUSE ............................................................................................................................................................................................. 79 DRUG-FREE WORKPLACE WORKPLACE ............ ............. ............ .............. ............. ............. ............. ............. ............. .............. ............. ............. ............. ............. ........ 80 MANDATORY SUBJECTS OF BARGAINING ..................................................................................................................................................................... 80 IMPASSE ....................................................................................................................................................................................................................... 81 BOULWARISM .............................................................................................................................................................................................................. 81 RATIFICATION OF CBA: WHEN NEEDED? ............ .............. ............. ............. ............. ............. ............. .............. ............. ............ .............. ............. ........ 81 RATIFICATION OF CBA: WHEN NOT NOT NEEDED? ............. ............. .............. ............. ............. ............. ............. ............. .............. ............ ............. ............. 82 REGISTRATION OF CBA ................................................................................................................................................................................................. 82 TERM OF CBA: REPRESENTATION ASPECT .................................................................................................................................................................... 83 RENEGOTIATION / RETROACTIVITY OF CBA .................................................................................................................................................................. 84 SUBSTITUTIONARY DOCTRINE ...................................................................................................................................................................................... 85 RIGHT TO FINANCIAL STATEMENTS .............................................................................................................................................................................. 85 RIGHT TO PARTICIPATE IN POLICY AND DECISION MAKING PROCESS .......................................................................................................................... 86 PRINCIPLE OF CO-DETERMINATION ............................................................................................................................................................................. 86 RIGHT TO ENGAGE I N PEACEFUL CONCERTED ACTIVITIES............................................................................................................................................ ACTIVITIES ............................................................................................................................................
86
FORMS OF CONCERTED ACTIVITIES .............................................................................................................................................................................. 88 STRIKE AND LOCKOUT .................................................................................................................................................................................................. 88 CONSTITUTIONAL AND STATUTORY BASIS ................................................................................................................................................................... 89 KINDS OF STRIKE ........................................................................................................................................................................................................... 90 CATEGORIES OF ILLEGAL STIKE ..................................................................................................................................................................................... 91 NCMB MANUAL OF PROCEDURE FOR CONCILIATION AND PREVENTIVE MEDIATION .................................................................................................. 91 STRIKE ........................................................................................................................................................................................................................... 91 FORM NOTICE OF STRIKE AND LOCKOUTS; CONTENTS ................................................................................................................................................ 91 WHERE TO FILE ............................................................................................................................................................................................................. 92 WHO MAY FILE ............................................................................................................................................................................................................. 92 GROUNDS FOR STRIKE AND LOCK-OUT ........................................................................................................................................................................ 92 VALIDITY OF "NO STRIKE" CLAUSE ................................................................................................................................................................................ 94 STRIKEABLE ISSUES ....................................................................................................................................................................................................... 94 NON-STRIKEABLE ISSUES .............................................................................................................................................................................................. 94 ASSUMPTION OF JURISDICITON/SEC./DOLE (ART. 263(G))........................................................................................................................................... 95 DO-40-H-13, S. 2013, .................................................................................................................................................................................................... 95
Societas Spectra Legis Labor Relations Compilation EFFECT OF ASSUMPTION .............................................................................................................................................................................................. 96 APPEAL TO OFFICE OF THE PRESIDENT; WHEN ALLOWED & PROCEDURE ........................ ............. ............. ............. .............. ............. ............ ............. 97 PROHIBITED ACTIVITIES ................................................................................................................................................................................................ 99 STRIKE AREA ................................................................................................................................................................................................................. 99 IMPROVED OFFER BALLOTING ..................................................................................................................................................................................... 99 CONSEQUENCES OF LEGAL AND ILLEGAL STRIKE ........................................................................................................................................................ 100 IN PARI DELICTO RULE ................................................................................................................................................................................................ 100 ARREST AND DETENTION OF UNION MEMBERS ......................................................................................................................................................... 100 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 ................................................................................................ 102 LEGAL REMEDIES OF EMPLOYER & UNION IN CASE OF STRIKE/LOCKOUT .................................................................................................................. 102 JURISDICTION & PROCEDURE BEFORE THE LABOR ARBITER & THE SECRETARY OF LABOR ........................................................................................ 102 INNOCENT BY-STANDER RULE .................................................................................................................................................................................... 102 ANTI-INJUNCTION BAN............ .............. ............ ............. .............. ............. ............. ............. ............. ............. .............. ............. ............ .............. ........ 103 FREEDOM AT WORKPLACE ......................................................................................................................................................................................... 104 nd
ATTY. MARQUEZ’ DISCUSSION (2014-2015 2 Sem)............. ............. ............. .............. ............. ............. ............. ............. ............. ............. ............. .. 109
TOPIC 14: REVISED GUIDELINES OF THE NCMB FOR THE CONDUCT OF VOLUNTARY ARBITRATION PROCEEDINGS……………………………………………………………………………………………………………………………………………….120 ART. 260, 261, 262, 262-A, 262-B ............................................................................................................................................................................... 120 DO-40-03 .................................................................................................................................................................................................................... 121 ART. 211 (G), LABOR CODE & SEC. 3, ART XIII, 1987 CONSTITUTION .......................................................................................................................... 123 Art. 255 & ART. 277 (G) & (H) ..................................................................................................................................................................................... 124 FRAMEWORK OF ALTERNATIVE DISPUTE RESOLUTION FOR DISPUTE PREVENTION: ................................................................................................. 125 1. CONCILIATION- MEDIATION ................................................................................................................................................................................... 125 2. VOLUNTARY ARBITRATION ..................................................................................................................................................................................... 125 3. GRIEVANCE HANDLING ........................................................................................................................................................................................... 125 4. WORKPLACE COOPERATION (LABOR- MANAGEMENT COUNCIL) ........................................................................................................................... 126 5. EMPLOYEE INVOLVEMENT (EI) & EMPLOYMENT PARTICIPATION SCHEMES .......................................................................................................... 126 6. COLLECTIVE BARGAINING ....................................................................................................................................................................................... 128 STRIKE OR LOCK-OUT INTERVENTION ON THE PART OF DOLE: CONCILIATION/MEDIATION............ ............. .............. ............. ............ .............. ........ 128 A. CONCILIATION/MEDIATION (NCMB), ..................................................................................................................................................................... 128 B. VOLUNTARY (ART. 262) .......................................................................................................................................................................................... 128 C. COMPULSORY ARBITRATION (ART. 217)................................................................................................................................................................. 128 D. ASSUMPTION OF JURISDICTION (ART. 263 (G)) ...................................................................................................................................................... 129 GRIEVANCE; CONCEPT; & SCOPE ................................................................................................................................................................................ 129 SUBMISSION AGREEMENT; NOTICE TO ARBITRATE; ARBITRATION CLAUSE ............................................................................................................... 130 GRIEVANCE MACHINERY; UNRESOLVED GRIEVANCES ............................................................................................................................................... 130 COLLECTIVE BARGAINING AGREEMENT & COMPANY PERSONNEL POLICIES (CONTRACT INTERPRETATION & ENFORCEMENT DISPUTE) .............. .. 130 DISPUTES INVOLVING PRODUCTIVITY INCENTIVE PROGRAMS UNDER RA 6971 (PRODUCTIVITY INCENTIVES ACT) .................. ............. ............. ...... 131 GRIEVANCE PROCEDURE; GRIEVANCE COMMITTEE ................................................................................................................................................... 131 VOLUNTARY ARBITRATION; DISTINGUISHED FROM COMPULSORY ARBITRATION ..................................................................................................... 131 DESIGNATION OR APPOINTMENT OF VOLUNTARY ARBITRATOR; AD-HOC AND PERMANENT.............. ............. ............. ............. ............. ............. .... 132 JURISDICTION OF VOLUNTARY ARBITRATOR; ORIGINAL AND EXCLUSIVE; & CONCURRENT ............ ............. .............. ............. ............ .............. ........ 132 POWERS AND DUTIES OF VOLUNTARY ARBITRATOR .................................................................................................................................................. 133 COST OF VOLUNTARY ARBITRATION AND FEES OF ARBITRATOR ............................................................................................................................... 134 NATURE OF PROCEEDINGS; INITIAL CONFERENCE; ARBITRATION ISSUES; GROUND RULES; FILING OF POSITION PAPERS AND OTHER PLEADINGS; CLARIFICATORY HEARING; RECORDING OF PROCEEDINGS; ARBITRATION CONFERENCE .............. ............. ............. ............. ............. .... 134
Societas Spectra Legis Labor Relations Compilation DECISION OF VOLUNTARY ARBITRATOR AND PROHIBITED MOTION; APPEAL PROCEDURE (RULE 43, RULES OF CIVIL PROCEDURE) AND RULE 45 ...................................................................................................................................................................................................................... 136 COMPLIANCE OF AND EXECUTION OF DECISIONS OR ORDER OF VOLUNTARY ARBITRATOR ............. .............. ............. ............. ............. ............. ...... 136 ATTY MARQUEZ’ DISCUSSION .................................................................................................................................................................................... 136
TOPIC 15: UNFAIR LABOR PRACTICE .................................................................................................................................. 141 REQUISITES ................................................................................................................................................................................................................. 141 CONDITIONS: .............................................................................................................................................................................................................. 141 ACTS OF UNFAIR LABOR PRACTICE: EMPLOYER & UNION .......................................................................................................................................... 141 TERMS ........................................................................................................................................................................................................................ 143 PRESCRIPTIVE PERIOD ................................................................................................................................................................................................ 144 PENAL PROVISION ...................................................................................................................................................................................................... 144 JURISDICTION ............................................................................................................................................................................................................. 144 PROCEDURE ................................................................................................................................................................................................................ 145 RELIEF AGAINST UNFAIR LABOR PRACTICES ............................................................................................................................................................... 145 ATTY. MARQUEZ’ DISCUSSION ................................................................................................................................................................................... 146
Societas Spectra Legis Labor Relations Compilation
TOPIC 12: RIGHT TO SELF-ORGANIZATION UNIONISM, POLICY OF STATE, CONSTITUTIONAL GUARANTEE The State promotes unionism in Art. III Sec 8 and Art. XIII Sec 3 of the 1987 Constitution. “ ART III, Section 8. The right of the people, including those employed in the public and private sectors, to form unions , associations, or societies for purposes not contrary to law shall not be abridged.” “ ART XIII, Section 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth.”
The Constitution contains provisions which promote unionism and one of the provisions include: 1.
the right to self-organization; (Art. 243)
2.
the right to collective bargaining and negotiations; and (Art. 243; 244)
3.
peaceful concerted activities (provision on strikes or lockouts Art. 263)
All three constitutional rights promote unionism Why? The State promotes unionism for full protection of labor – more benefits are obtained because you are given the opportunity to bargain for benefits and privileges. Therefore, there is a stronger voice to air out your concerns, thus more chance that your request will be granted by the employers. Employer and employee do not stand in equal footing in terms of collective bargaining because in order to bargain you need education; skills and experience; Individual bargaining is NOT as effective as collective bargaining These rights are very important to the worker in terms of improving their conditions of employment because they can raise concerns and make the employer aware of the lacking benefits. It is better to have collective bargaining. There is no provision in the Constitution nor in the Labor Code which promotes individual bargaining. Constitutional right of employees to self-organization is recognized in the labor code (Art. 243 and 244) It is not easy for an individual EE to bargain with the ER. All three rights should come together or be present in order to be effective. The workers may exercise collective bargaining when they have organized themselves as a labor organization. Thru the exercise of this right they can negotiate with management in equal level and with more persuasion than if they were to individually and independently bargain for the improvement of their conditions. The ER and EE do not stand in equal footing that is why to balance this, the law gives more protection to labor – to offset the social and economic imbalance.
Societas Spectra Legis Labor Relations Compilation SCOPE AND NATURE OF EMPLOYEE’S RIGHTS Both private and public EEs have a right to association. Right to strike is only applicable to private establishments. For Public employees, peaceful picketing is allowed (ex. Wearing arm bands) – during working hours, you cannot march around, however, during lunch period or break time such is allowed. On the right of collective bargaining, only those GOCCs without original charter established under the Corporation Code are allowed. Those under the Civil Service Law are not allowed to collectively bargain because the salary of those working in the civil service is already fixed by law and thus cannot be subject to collective bargaining. What the government EE can do is to lobby with Congress to enact laws which will improve their compensation and benefits. Private EEs enjoy broader rights than public EEs. However, as regards to the right to association, both exercise such right.
CONSTITUTIONAL BASIS Article III Section 8 (1987 Constitution) The right of the people in the public and private sectors to form unions, associations or societies for purposes not contrary to law shall not be abridged. Article XIII Section 3 (1987 Constitution) The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth.
STATUTORY BASIS Article 243 Coverage and Employees’ Right to Self Organization All persons employed in commercial, industrial and agricultural enterprises and in religious, charitable, medical or educational institutions whether operating for profit or not shall have the right to self-organization and to form join or assist labor organizations of their own choosing for purposes of collective bargaining. Ambulant, intermittent and itinerant workers, self-employed people, rural workers and those without any definite employers may form labor organizations for their mutual aid and protection. Article 244 Right of the Employees in the Public Service Employees of government corporations established under the Corporation Code shall have the right to organize and to bargain collectively with their respective employers. All other employees in the civil service shall have the right to form associations for purposes not contrary to law.
Societas Spectra Legis Labor Relations Compilation DO. No. 40-03 Series of 2003, DO. No. 40-A-3, 40-B-03 and 40-C-05 are the implementing rules issued by the DOLE to enforce the right to association. Recently Congress enacted RA 9481 otherwise known as “ AN ACT STRENGTHENING THE WORKERS' CONSTITUTIONAL RIGHT TO SELF-ORGANIZATION, AMENDING FOR THE PURPOSE PRESIDENTIAL DECREE NO. 442, AS AMENDED, OTHERWISE KNOWN AS THE LABOR CODE OF THE PHILIPPINES”
TWO CONCEPTS OF RIGHT TO ASSOCIATION NOTE: The right to association is broader than the right to self -organization 1.) Liberty or freedom – the absence of legal restraint whereby an employee may act for himself without being circumvented by law.
he may act as he or she pleases in the absence of legal restraint
unless there is a specific law which prevents you from performing or doing a particular act, an EE may act for himself without being circumvented or restrained by law.
2.) Power to join or not to join – a person may choose to join or not to join and which organization to join and he may disassociate or withdraw from the organization
Freedom of association- the right to join an organization Negative freedom of association – the right NOT to join an organization, but not absolute because of the closed shop agreement.
Note: However in RA 3350 otherwise known as the Industrial Peace Act -“but such agreement shall not cover members of any religious sects which prohibit affiliation of their members in any such labor organization.”… The free exercise of religious profession or belief is superior to contract rights. In case of conflicts the latter must yield to the former (Victoriano vs. Elizalde Rope Worker’s Union et al)
General Rule: Employee is free to join/not to join an association. An individual has a freedom of association and the negative freedom of association (inherent right of every individual) Exception to the negative freedom of association: Closed-shop agreement (as regulated by Art. 248 of Labor Code and CBA) where employee, under pain of dismissal has no choice but to join the existing labor organization. Closed shop agreement- agreement between employer and union to require membership in a union for purpose of continued employment
UNION SECURITY CLAUSE OR CLOSED SHOP AGREEMENT Article 248 (e) Nothing in this Code or in any other law shall stop the parties from requiring membership in the recognized collective bargaining agent as a condition for employment except those employees who are already members of another union at the time of the collective bargaining agreement.
Exceptions to the exception: 1.
If employee is a member of a religious organization which prohibits employee from affiliating with any labor organization then this right prevails over closed-shop provision. (Victoriano vs. Elizalde) Currently: Iglesia ni Kristo allows its members to join labor unions but not allowed to join a strike
Societas Spectra Legis Labor Relations Compilation 2.
If, at the time of the signing of the CBA, employee is already a member of another labor union. (Art. 248)
3.
When it is expressly excluded in the CBA
PURPOSE OF EXERCISE OF RIGHT: TWO FOLD PURPOSE/S
1.) Collective Bargaining - this is the primary purpose (if absent, then it is a useless endeavour) It is only when you are certified as sole and exclusive bargaining agent (vote of confidence is necessary) can you then collectively bargain 2.) Mutual Aid and Protection - Members form an association wherein they give contributions for mutual benefits. Ex. Social organizations and cooperatives – they contribute to provide housing, scholarship, etc
REPUBLIC ACT NO. 9481 “AN ACT STRENGTHENING THE WORKERS' CONSTITUTIONAL RIGHT TO SELF -ORGANIZATION, AMENDING FOR THE PURPOSE PRESIDENTIAL DECREE NO. 442, AS AMENDED, OTHERWISE KNOWN AS THE LABOR CODE OF THE PHILIPPINES” SECTION 1. Article 234 of Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines, is hereby further amended to read as follows: " ART. 234. Requirements of Registration. - A federation, national union or industry or trade union center or an independent union shall acquire legal personality and shall be entitled to the rights and privileges granted by law to legitimate labor organizations upon issuance of the certificate of registration based on the following requirements: (a) Fifty pesos (P50.00) registration fee; (b) The names of its officers, their addresses, the principal address of the labor organization, the minutes of the organizational meetings and the list of the workers who participated in such meetings; (c) In case the applicant is an independent union, the names of all its members comprising at least twenty percent (20%) of all the employees in the bargaining unit where it seeks to operate; (d) If the applicant union has been in existence for one or more years, copies of its annual financial reports; and (e) Four copies of the constitution and by -laws of the applicant union, minutes of its adoption or ratification, and the list of the members who participated in it." SEC. 2. A new provision is hereby inserted into the Labor Code as Article 234 - A to read as follows: ART. 234- A. Chartering and Creation of a Local Chapter . - A duly registered federation or national union may " directly create a local chapter by issuing a charter certificate indicating the establishment of the local chapter. The chapter shall acquire legal personality only for purposes of filing a petition for certification election from the date it was issued a charter certificate. The chapter shall be entitled to all other rights and privileges of a legitimate labor organization only upon the submission of the following documents in addition to its charter certificate: a.
The names of the chapter's officers, their addresses, and the principal office of the chapter; and
b.
The chapter's constitution and by -laws: Provided, That where the chapter's constitution and by -laws are the same as that of the federation or the national union, this fact shall be indicated accordingly.
The additional supporting requirements shall be certified under oath by the secretary or treasurer of the chapter and attested by its president." 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:
Societas Spectra Legis Labor Relations Compilation " ART. 238 - A. Effect of a Petition for Cancellation of Registration. - A petition for cancellation of union registration shall not suspend the proceedings for certification election nor shall it prevent the filing of a petition for certification election. In case of cancellation, nothing herein shall restrict the right of the union to seek just and equitable remedies in the appropriate courts." SEC. 5. Article 239 of the Labor Code is amended to read as follows: ART. 239. Grounds for Cancellation of Union Registration . - The following may constitute grounds for " cancellation of union registration: a.
Misrepresentation, false statement or fraud in connection with the adoption or ratification of the constitution and by -laws or amendments thereto, the minutes of ratification, and the list of members who took part in the ratification;
b.
Misrepresentation, false statements or fraud in connection with the election of officers, minutes of the election of officers, and the list of voters;
c.
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.
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;
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." 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
Societas Spectra Legis Labor Relations Compilation valid votes cast shall be certified as the exclusive bargaining agent of all the workers in the unit. When an election which provides for three or more choices results in no choice receiving a majority of the valid votes cast, a run -off election shall be conducted between the labor unions receiving the two highest number of votes: Provided, That the total number of votes for all contending unions is at least fifty percent (50%) of the number of votes cast. In cases where the petition was filed by a national union or federation, it shall not be required to disclose the names of the local chapter's officers and members. At the expiration of the freedom period, the employer shall continue to recognize the majority status of the incumbent bargaining agent where no petition for certification election is filed." SEC. 11. Article 257 of the Labor Code is hereby amended to read as follows: ART. 257. Petitions in Unorganized Establishments. - In any establishment where there is no certified bargaining " agent, a certification election shall automatically be conducted by the Med - Arbiter upon the filing of a petition by any legitimate labor organization, including a national union or federation which has already issued a charter certificate to its 1ocal/chapter participating in the certification election or a local/chapter which has been issued a charter certificate by the national union or federation. In cases where the petition was filed by a national union or federation, it shall not be required to disclose the names of the local chapter's officers and members.” SEC. 12. A new provision, Article 258 - A is hereby inserted into the Labor Code to read as follows: ART. 258 - A. Employer as Bystander . - In all cases, whether the petition for certification election is filed by an employer " or a legitimate labor organization, the employer shall not be considered a party thereto with a concomitant right to oppose a petition for certification election. The employer's participation in such proceedings shall be limited to: (1) being notified or informed of petitions of such nature; and (2) submitting the list of employees during the pre -election conference should the Med - Arbiter act favorably on the petition."
NOTE: See also IRR under DO No. 40-03 as amended by DO Nos. 40-A-03, 40-B-03, 40-C-05, 40-D-05, 40-E-05 40-F-03, 40G-10 & 40-H-13.
NON-ABRIDGEMENT OF RIGHT TO SELF-ORGANIZATION ART. 246 It shall be unlawful for any person to restrain, coerce, discriminate against or unduly interfere with employees and workers in their exercise of the right to self -organization. Such right shall include the right to form, join or assist labor organization for the purpose of collective bargaining through representatives of their own choosing and to engage in lawful concerted activities for the same purpose or for their mutual aid or protection subject to the provision in Article 264 of this code
Note: This right to self organization is protected by law and should not be abridged or curtailed. The code says that an act tending to weaken or defeat this right is unlawful and is considered as an “Unfair Labor Practice” and shall be dealt with by law.
UNION MEMBERSHIP AND FORMATION OF UNION: WHO ARE QUALIFIED AND DISQUALIFIED
THOSE QUALIFIED: (DO 40-03; 40-A-03; 40-B-03) Article 243. Coverage and employees’ right to self -organization. All persons employed in commercial, industrial and agricultural enterprises and in religious, charitable, medical, or educational institutions, whether operating for profit or not, shall have the right to self-organization and to form, join, or assist labor organizations of their own choosing for purposes of collective bargaining. Ambulant, intermittent and itinerant workers, self-employed people, rural workers and those without any definite employers may form labor organizations for their mutual aid and protection. (As amended by Batas Pambansa Bilang 70, May 1, 1980) Article 244. Right of employees in the public service . Employees of government corporations established under the Corporation Code shall have the right to organize and to bargain collectively with their respective employers. All other employees in the civil service shall have the right to form associations for purposes not contrary to law. (As amended by Executive Order No. 111, December 24, 1986)
Societas Spectra Legis Labor Relations Compilation Rule II, Section 2 of DO 40-03 as amended. Who may join labor unions and workers associations. - All persons employed in commercial, industrial and agricultural enterprises, including employees of government owned or controlled corporations without original charters established under the Corporation Code, as well as employees of religious, charitable, medical or educational institutions whether operating for profit or not, shall have the right to selforganization and to form, join or assist labor unions for purposes of collective bargaining provided, however, that supervisory employees shall not be eligible for membership in a labor union of the rank-and-file employees but may form, join or assist separate labor unions of their own. Managerial employees shall not be eligible to form, join or assist any labor unions for purposes of collective bargaining. Alien employees with valid working permits issued by the Department may exercise the right to self-organization and join or assist labor unions for purposes of collective bargaining if they are nationals of a country which grants the same or similar rights to Filipino workers, as certified by the Department of Foreign Affairs, or which has ratified either ILO Convention No. 87 and ILO Convention No. 98. For purposes of this section, any employee, whether employed for a definite period or not, shall beginning on the first day of his/her service, be eligible for membership in any labor organization. All other workers, including ambulant, intermittent and other workers, the self-employed, rural workers and those without any definite employers may form labor organizations for their mutual aid and protection and other legitimate purposes except collective bargaining.”(DO 40-c-05)
SUMMARY OF THOSE QUALIFIED: 1. All persons employed in commercial, industrial and agricultural enterprises including: a.
Commercial establishments – those engaged in sale of goods or services. Ex. Shoemart
b.
Industrial establishments – those engaged in the manufacture and processing of goods from raw materials. Ex. Philip Morris
c.
Agricultural establishments – engaged in the growing or planting of crops. Ex. Dole Phil., farmers
2. Employees of government owned or controlled corporations without original charters established under the Corporation Code.
Article 244, LC
if employed in a government corporation established under the Corporation Code: they have the right to self organization and collective bargaining
with original charter: city of cebu- not covered
without original charter: example
3. Employees of religious, charitable medical or education institutions operating for profit or not . Religious, Charitable, Medical, and Educational Institutions – if Iglesia Ni Kristo hires workers, such workers can form a labor organization. In these types of establishments EEs or workers can exercise the right to self organization regardless of whether the establishment operates for profit or not. 4. Alien employees with valid working permits issued by the Department if they are nationals of a country which grants the same or similar rights to Filipino workers as certified by the Department of Foreign Affairs. (Reciprocity rule) Alien employees (Article 269) – absolutely prohibited from FORMING labor organizations but they can JOIN or ASSIST provided they have valid permits and the country where they are nationals grant the same rights to Filipinos. General rule: Alien EEs are strictly prohibited from engaging directly or indirectly in all forms of trade union activities Exceptions: Under the Labor Code: (1) if they are working in the country (2) with valid working permits issued by the DOLE; (3) aliens are nationals of a country which grants the same or similar rights to Filipino workers (reciprocity rule); (4) Under the IRR: that the country to which the alien is a national has participated in the ratification of ILO convention #87 and 98 as certified by the DFA (these conventions pertain to the right to collectively bargain) 5. All other workers including ambulant, intermittent and other workers, the self-employed people, rural workers and those without any definite employers may form labor organizations for their mutual aid and protection and other legitimate purposes except collective bargaining. Note: Everybody can exercise their right to association whether in the public or private sector.
Societas Spectra Legis Labor Relations Compilation 6. Security Guards Under RA 6715, they may now freely join a labor organization of the rank -and –file or that of the supervisory union depending on their rank in recognition of their constitutional right to self organization 7. Workers in export processing zones
SUMMARY OF THOSE DISQUALIFIED: 1.
EMPLOYEES OF GOVERNMENT CORPORATIONS ESTABLISHED THROUGH SPECIAL CHARTERS
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 co llective 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 bran ches, 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
2.
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.
Societas Spectra Legis Labor Relations Compilation
In order to determine if you are a managerial employee it is NOT based on the title rather it is dependent on your powers and duties (ex. Power to hire, fire, suspend, discipline EEs)
The three (3) types of managerial employees are as follows: a.
Top management; - responsible for the overall management of the organization; establishes operating policies
b.
Middle management; - direct the activities of other managers and sometimes also those of operating employees
c.
First-line management. – direct operating employees only, they do not supervise other managers
(See United Pepsi0Cola Supervisors Union vs. Laguesma, 288 SCRA 15 and Paper Industries Corp. of the Philippines vs. Laguesma, G. R. No. 101738, April 12, 2000) “Supervisory employees” are those who, in the interest of the employer, effectively recommend such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment (Art. 212)
As a general rule, only top and middle managers are not allowed to join any labor organization. First-line managers (or supervisory employees) are allowed to join a supervisory union but not the union of rank-and-file employees or vice-versa. In fact, the law does not allow mixed membership of both supervisory and rank -and-file employees in one union.
The principal distinction between managerial employees and supervisory employees is: the former have the power to decide and do managerial acts; while the latter have the power only to recommend managerial acts such as laying down policy, hiring or dismissal of employees and the like.
Manager makes policy decisions or people decisions or both; supervisor recommends those decisions
Power of supervisor: the r ecommendation is: a.
Discretionary or judgmental (not clerical)
b.
Independent
c.
Effective (given weight in making the management decision)
The “separation of unions” doctrine simply means that the affiliation of both the rank-and-file union and supervisory union in the same company with one and the same federation is not allowed if the rank-and-file employees are under the direct supervision of the supervisors composing the supervisory union. If not, said affiliation with one and the same federation is allowed. Rationale of segregation of rank-and-file and supervisors is founded on fairness to the employer and the employees. It will be detrimental to the employer if the supervisors and the rank-and-file as members of only o ne union could take a common stand against the employer Supervisory employees are relatively prohibited (relative disqualification) since they cannot associate with the rank and file but they can form their own union because of co nflict of interest. Areas where conflict of interest may arise: a.
Area of discipline- there will be no one to discipline the rank and file employees (Atty Marquez: if barkada na sila, sino pa ang mag didiscipline?)
b.
Area of collective bargaining - their loyalty will be divided. They can serve as spies for or against the ERs.
“Rank and file employees ” - neither managerial nor supervisory in nature (IRR)
DOCTRINE OF NECESSARY IMPLICATION 3.
CONFIDENTIAL EMPLOYEES (BASIS: DOCTRINE OF NECESSARY IMPLICATION)
Reason for disqualification: Conflict of Interest
They are those who by reason of their positions or nature of work are required to assist or act in a fiduciary manner to managerial employees and hence are likewise privy to sensitive and highly confidential records. (Metro Lab Industries vs. Confessor et al)
Societas Spectra Legis Labor Relations Compilation They assist and act in a confidential capacity to or have access to confidential matters or persons who exercise managerial functions in the field of labor relations. As such the rationale behind the ineligibility of managerial employees to form, assist or join a labor union equally applies to them (Philips Industrial Development vs. NLRC.)
Confidential employee may be a supervisory or even a rank-and-file employee Confidential employees are excluded from the bargaining unit and closed-shop clause Access to information which is regarded by the employer to be confidential from the business standpoint, such as financial information or technical trade secrets will NOT render an employee a confidential employee
“Doctrine of Necessary Implication” - what is implied in a statute is as much a part thereof as that which is expressed.
If you are a supervisor and at the same time you hold a confidential position, you are NOT qualified to form, join, or assist a union.
If you are a rank and file EE but you hold a confidential position, you are NOT qualified to form, join or assist a union based on the doctrine of necessary implication.
CASE: SMC Supervisors and Exempt Union vs. Hon. Laguesma Under the “confidential employee rule”, c onfidential employees are not allowed to join any union (as they are treated like managers) when they: Assist or act in a confidential capacity, to persons who formulate, determine, and effectuate management policies specifically in the field of labor relations. Otherwise, if these two conditions do not concur, they can join a union. Simply put, if the confidential information to which an employee has access has nothing to do with labor relations, such employee cannot be considered a confidential employee under this rule.
4.
MEMBERS (CO-OWNERS OF A COOPERATIVE)
An owner cannot bargain with himself or his co-owners (San Jose Electric Service Corporation Inc. vs. Ministry of Labor)
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
5.
MEMBERS OF INTERNATIONAL ORGANIZATIONS By the Doctrine of I ncorporation, they are immune from suit and cannot be subject to local jurisdiction. (International Catholic Migration Commission vs. Calleja; Kapisanan ng mga Manggagawa at TAC sa IRRIOLALIA vs. Secretary of Labor and Employment)
E.g. International Rice Research Institute (IRRI)
International organization is set up by agreement between 2 or more states
REGISTRATION OF UNION; JURISDICTION AND PROCEDURE, JURIDICAL PERSONALITY Terminologies: 1.
Labor Organization –refers to any labor organization in the private sector whether registered or not.
A Labor organization is any union or association of employees which exists in whole or in part for the purpose of collective bargaining, mutual aid, interest, cooperation, or other lawful purposes (IRR)
Union and labor organization can be used interchangeably
It is considered "legitimate" if duly registered with DOLE. A labor organization is NOT always a union, it may be an association of employees
Societas Spectra Legis Labor Relations Compilation 2.
Legitimate Labor Organization – refers to any labor organization in the private sector registered or reported with the department of Labor and Employment and includes any branch or local thereof (Art. 212)
3.
Workers' association- refers to an association of workers organized for the mutual aid and protection of its members or for any legitimate purpose other than collective bargaining. (IRR)
Registration with DOLE makes it legitimate. 4.
Legitimate workers’ association - refers to an association of workers organized for mutual aid and protection of its members or of any legitimate purpose other than collective bargaining registered with the Department in accordance with Rule III, Section 2-C and 2-D of these rules (IRR)
Distinction between a labor organization and a workers’ association
A labor organization is established principally for collective bargaining purposes; while a workers' association is organized for the mutual aid and protection o f its members but not for collective bargaining purposes. However, as regards to the composition, they are the same. They only differ on the purpose and power. The establishment of workers’ association is NOT found under the LC but it is found in DO 40-03.
The rules contain registration of worker’s association
The purposes of a labor org anization
a.
Collective bargaining; and
b.
Dealing with employers regarding the terms and conditions of the employment relationship.
To bargain collectively is a right that may be acquired by a labor organization after registering itself with the DOLE and being recognized by DOLE as the exclusive bargaining representative of the employees
Dealing with the employer is a generic description of interaction between employer and employees concerning grievances, wages, work hours even if NOT registered with the DOLE
5.
Bargaining unit - is the group or cluster of jobs or positions that supports the labor organization which is applying for registration, within the employer’s establishment. Refers to a group of employees sharing mutual interest within a given employer unit, comprises of all or less than all of the entire body of employees in the employer unit or any specific occupational or geographical grouping within such employer unit. (IRR) Determination of bargaining unit: a. b. c.
Communality / Mutuality of interest (e.g. teachers share same interest with fellow teachers, but you cannot mix up with the non academic personnel) will of the employees- Globe doctrine prior/ previous history
6.
Union – refers to any labor organization in the private sector for co llective 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.
Affiliate- refers to: an independent union affiliated with a federation, national union; or
9.
a chartered local which was subsequently granted independent registration but did not disaffiliate from its federation. It is important to gain or increase the bargaining power vis-à-vis the employer. Chartered Local – refers to a labor organization in the private sector operating at the enterprise level that acquired legal personality through the issuance of a charter certificate by a duly registered federation or national union. (IRR)
Societas Spectra Legis Labor Relations Compilation 10. Independent Union- refers to a labor organization operating at the enterprise level that acquired legal personality through independent registration under Art. 234 of the Labor Code and Rule III, Section 2-A of these Rules (IRR) 11. Registration -refers to the process of determining whether the application for registration of a union or worker’s association and collective bargaining agreement complies with the documentary requirements for registration prescribed in rules III,IV and XVII of these rules. (IRR) It is necessary to qualify as legitimate labor organization that can avail of the benefits provided by law.
HOW TO FORM A LABOR UNION: 1.
Form or organize an Independent Union.
2.
Local Chapter thru the process of chartering (directly created thru the process of chartering)
The proof of affiliation depends on the nature of the affiliation. Thus, if: 1. Chartered local. - Charter certificate issued by the federation or national union. 2. Independently-registered union. - contract of affiliation between federation and the union.
A labor union which affiliates with a federation or national union becomes subject to the rules and regulations of the latter. The federation is the principal and the local union, the agent. An independently-registered union does not lose its independent legal personality when it affiliates with a federation or national union. Appending the name of the federation to the local union's name does not mean that the fed eration absorbed the latter. In Filipino Pipe and Foundry Corporation vs. NLRC, (G. R. No. 115180, November 16, 1999), it was held that it is the local union and not the federation which is liable to pay damages in case of illegal strike.
Formation of Union and Registration 1.) Recruitment For purposes of registration, at least 20% of the employees in the bargaining unit Qualification of a member- he must be an employee of the same bargaining unit. Article 277 (c) Any employee, whether employed for a definite period or not, shall, beginning on his first day of service, be considered as an employee for purposes of membership in any labor union. 2.) Drafting of the Constitution and by -laws. The former refers to the general principles and the latter to the detailed matters as duties and responsibilities. 3.) Ratification – majority vote is required . 4.) Registration ART. 234. Requirements of Registration. - A federation, national union or industry or trade union center or an independent union shall acquire legal personality and shall be entitled to the rights and privileges granted by law to legitimate labor organizations upon issuance of the certificate of registration based on the following requirements: (a) Fifty pesos (P50.00) registration fee; - fee is minimal to encourage employees to form and organize a labor union (promote unionism) (b) The names of its officers, their addresses, the principal address of the labor organization, the minutes of the organizational meetings and the list of the workers who participated in such meetings; (c) In case the applicant is an independent union, the names of all its members comprising at least twenty percent (20%) of all the employees in the bargaining unit where it seeks to operate; (unique to independent union only) (d) If the applicant union has been in existence for one or more years, copies of its annual financial reports; and because money has not yet been received yet or nothing may have been spent (e) Four copies of the constitution and by -laws of the applicant union, minutes of its adoption or ratification, and the list of the members who participated in it."
Societas Spectra Legis Labor Relations Compilation Constitution- general principles By laws- duties and responsibilities of the o fficers, members Majority of the members of the union required to adopt or ratify the constitution or by laws Purpose of registration: to acquire legal personality and shall be entitled to the rights and privileges granted by law to legitimate labor organizations (representational and bargaining rights) upon issuance of the certificate of registration
The BLR issues the certificate of registration.
Upon issuance of certificate of registration the union acquires legal personality
In Tagaytay Highlands International Golf Club, Inc. vs. Tagaytay Highlands Employees Union -PGTWO (G. R. No. 142000, January 22, 2003), the Supreme Court ruled that the effect of issuance of certificate of registration to a union is that it becomes legitimate and its legal personality can only be attacked through a petition for cancellation of registration and not thru intervention in a certification election petition. Constitutional rights or provisions are not sources of positive enforceable rights. They are only bases for legislation.
A labor organization exists out of necessity. There won’t be a labor union if the workers do not feel the necessity to organize themselves.
Two-Fold Procedure in Creating a Chapter or Local 1.
affiliation of independent union(which has a legal personality separate and distinct from the national federation) with national union or federation
2.
direct creation of local or chapter through process of chartering - local or chapter will NOT exist without the issuance of charter certificate by the national union or federation - it contemplates of an unregistered labor organization “ART. 234- A. Chartering and Creation of a Local Chapter. – A duly registered federation or national union may directly create a local chapter by issuing a charter certificate indicating the establishment of the local chapter. The chapter shall acquire legal personality only for purposes of filing a petition for certification election from the date it was issued a charter certificate. The chapter shall be entitled to all other rights and privileges of a legitimate labor organization only upon the submission of the following documents in addition to its charter certificate: (a) The names of the chapter’s officers, their addresses, and the principal office of the chapter; and (b) The chapter’s constitution and by -laws: Provided, That where the chapter’s constitution and by -laws are the same as that of the federation or the national union, this fact shall be indicated accordingly. The additional supporting requirements shall be certified under oath by the secretary or treasurer of the chapter and attested by its president.”
Once it has been issued a charter certificate, it has a legal personality for purposes of petition of certification election but you cannot exercise all the rights in full of a LLO
One must be certified as exclusive bargaining agent to exercise collective bargaining
The primary document is the charter certificate issued by the federation or the national union
The federation or national union (refer to definition of NU) issues the charter certificate
It is the federation of NU which creates a local chapter
The charter certificate is issued to the Local Chapter
Once issued, it acquires legal personality but limited to filing for certification election.
Societas Spectra Legis Labor Relations Compilation
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.
The names of the chapter’s officers, their addresses, and the principal office of the chapter, and
b.
The chapter’s constitution and by-laws: Provided, that where the chapter’s constitution and by-laws are the same as that of the federation or the NU, this fact shall be indicated accordingly.
Registration does not curtail the right of the workers to self-organization because registration is not required by the constitution. The failure to register does not make the labor organization illegal. They are still free to associate between and among themselves but they are not given the rights and privileges of a LLO. (page 186)
Registration is required to afford protection to unsuspecting workers who may be lured by unscrupulous or flyby-night unions whose only interest is to control the funds or to use the organization for an illegitimate purpose. Such requirement is a valid exercise of the police power because the activities in which labor organizations, associations and unions affect public interest which should be protected
The requirements for the creation of a local or chapter less onerous or less stringent in order to encourage organizations to affiliate themselves with national federations in order for them to increase their bargaining power.
The creation of a local does not need subscription by a minimum number of members. The 20% initial membership is required to register an independent union but NOT a local
The federation to which you are affiliating must be duly registered. If you are created as a local or chapter you acquire your legal personality by being created as one. It is the federation that gives you legal personality. There is no more need for the local to submit the documents in Article 234 because such documents have already been submitted by the national union or federation.
In both cases, if you comply with the requirements as an independent union and if you are given a charter certificate as a local or chapter then you acquire legal personality. You cannot exercise collective bargaining if you have not been recognized as the exclusive bargaining agent.
Art. 237. Additional requirements for federations or national unions. Subject to Article 238, if the applicant for registration is a federation or a national union, it shall, in addition to the requirements of the preceding Articles, submit the following: Proof of the affiliation of at least ten (10) locals or chapters, each of which must be a duly recognized collective bargaining agent in the establishment or industry in which it operates, supporting the registration of such applicant federation or national union; and The names and addresses of the companies where the locals or chapters operate and the list of all the members in each company involved. A.)Accompanying Documents Independent Labor Union
Affiliation
Chartering
1.) The name of the applicant labor union, its principal address, the name of its officers and their respective addresses, approximate number of employees in the bargaining unit where it seeks to operate, with a statement that it is not reported as charted local o f any federation or national union.
The report of affiliation of independently registered labor unions with a federation or national union shall be accompanied by:
A duly registered federation or national union may directly create a local chapter by issuing a charter certificate indicating the establishment of the local chapter.
1.) Resolution of the labor union’s board of directors approving the affiliation.
( therefore no need to submit accompanying documents however the chapter’s rights is only limited to certification election )
2.) The minutes of the organizational meetings and the list of employees who participated in said meetings.
2.) Minutes of the general membership meeting approving the affiliation. 3.) The total number of members comprising the labor union and the
To be entitled to all other
Societas Spectra Legis Labor Relations Compilation 3.) The name of all its members comprising at least 20% of the employees in the bargaining unit. 4.) The annual financial reports if the applicant has been in existence for one or more years, unless it has not collected any amount from its members, in which case a statement to this effect shall be included in the application. 5.) The applicant’s constitution and by laws, minutes of its adoption or ratification, and the list of the members who participated in it. The list of the ratifying members shall be dispensed with where the constitution and by laws was ratified or adopted during the organizational meeting. In such case the factual circumstances of the ratification shall be recorded in the minutes of the organizational meeting.
the affiliation. 4.) The certificate of affiliation issued by the federation in favor of the independently registered labor union. 5.) Written notice to the employer concerned if the affiliating union is the incumbent bargaining agent.
the chapter shall submit the following documents in addition to its charter certificate:
(a) The names of the chapter’s officers, their addresses, and the principal office of the chapter; and
(b) The chapter’s constitution and bylaws: Provided, That where the chapter’s constitution and by-laws are the same as that of the federation or the national union, this fact shall be indicated accordingly.
The additional supporting requirements shall be certified under oath by the secretary or treasurer of the chapter and attested by its president.”
-
Less stringent bec. You derive your legal personality from the national union or federation who already submitted those requirements
Also there are attestation requirements needed (Certification under oath by the Secretary or Treasurer as the case may be and attested by the President) – it is also needed in case of change of name, merger, consolidation and affiliation. Payment of registration fees.
JURISDICTION AND PROCEDURE B. Jurisdiction for application of registration of an independent union:
BLR (Bureau of Labor Relations) has jurisdiction Applications for registration of independent labor unions, chartered locals and workers’ associations shall be filed with and acted upon by the Regional Office where the applicant principally operates Applications for registration of federations, national unions or workers’ association operating in more than one region shall be filed with the Bureau of Labor Relations or the Regional Offices but shall be processed and acted upon by the Bureau which has national jurisdiction BLR has jurisdiction. But the venue for the filing of the application is different. It depends on who is filing: -
If independent union or local chapter/chartered local and workers association, you file at the Regional Office (labor relations division)
-
If national union or federation – BLR
1.) Regional Office- For the registration of: independent labor unions Chartered locals (as amended by RA 9481) the law says that A duly registered federation or national union may directly create a local chapter by issuing a charter certificate indicating the establishment of the lo cal chapter. Worker’s association 2.) Bureau of Labor Relations (Manila) –for the registration of:
Federations National Unions
Art. 235. Action on application. The Bureau shall act on all applications for registration within thirty (30) days from filing. All requisite documents and papers shall be certified under oath by the secretary or the treasurer of the organization, as the case may be, and attested to by its president. “Section 4. Action on the application/notice. – The Regional Office of the Bureau, as the case may be, shall act on all applications for registration or notice of change of name, affiliation, merger and consolidation within one (1) day from receipt hereof, either by: (a) approving the application and issuing the certificate of registration/acknowledging the notice/report; or (b) denying the application/notice for failure of the applicant to comply with the requirements for registration/notice (As amended by Department Order No. 40-D-05, Series of 2005) C. When Registered The labor union or worker’s association shall be deemed registered and vested with legal personality on the date of issuance of its certificate of registration or certificate of creation of chartered local. (Sec 8 DO 40-33) See RA 9481 because chapter acquires personality upon issuance by federation of charter certificate to the chapter. - Recognition by BLR not a ministerial duty. The BLR will determine the veracity of the documents submitted. Determine if there is falsification or serious irregularities on the face of the application or the supporting documents. D. Assailment of Registration Such legal personality may be questioned only through an independent petition for cancellation of union registration (no collateral attack) E. Denial of Application It shall be in writing stating in clear terms the reasons thereof.
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“Section 5.
Denial of Application/Return of Notice. –
Where the documents supporting the application for registration/notice of change of name, affiliation, merger and consolidation are incomplete or do not contain the required certification and attestation, the Regional Office or the Bureau shall, within one (1) day from receipt of the application/notice, notify the applicant/labor orga nization concerned in writing of the necessary requir ements and to complete the same within thirty (30) days from receipt of notice. Where the applicant/labor organization concerned fails to complete the requirements within the time prescribed, the application for registration shall be denied, or the notice of change of name, affiliation, merger and consolidation returned, without prejudice to filing a new application or notice. F. Appeal From The Denial Art. 236. Denial of registration; appeal. The decision of the Labor Relations Division in the regional office denying registration may be appealed by the applicant union to the Bureau within ten (10) days from receipt of notice thereof . Section 6. form of denial of application/return of notice; appeal - The notice of the Regional Office of the Bureau denying the application for registration/ returning the notice of change of name, affiliation, merger or consolidation shall be in writing stating in clear terms the reasons for the denial or retu rn. The denial may be appealed to the Bu reau if denial is made b y the Regional Office or to the Secretary if denial is made by the Bureau, within 10 days from receipt of such notice, on the ground of grave abuse of discretion or violation of these Rules Section 7. Procedure on Appeal - The memorandum of appeal shall be filed with the Regional Office or the Bureau that issued the denial/ return of notice. The memorandum of appeal together with the complete records of the application for registration/ notice of change of name, affiliation, merger or consolidation, shall be transmitted by the Regional Office to the Bureau or by the Bureau to the Office of the Secretary, within 24 hours from receipt of the memorandum of appeal. The Bureau or the Office of the Secretary shall decide the appeal within 20 days from receipt of the records of the case. Form of denial:
In writing stating in clear terms the reasons for the denial
Appeal To whom:
If denial is made by the regional office – appeal to the Bureau
If denial is made by the Bureau – appeal to the Secretary of Labor
Mode of appeal:
Memorandum of appeal filed with the Bureau or Regional office that issued the denial
Prescriptive Period
within 10 days from receipt of such notice of denial
Grounds to appeal:
grave abuse of discretion
violation of the rules
Period to decide
-within 20 days from receipt of the records of the case.
G. Court of Appeal Thru Rule 65; Then SC Rule 45 From the SOLE it becomes final and executory. There is no appeal to the CA. Rather, you file a special civil action (Rule 65) to CA for grave abuse of discretion, violation of rules or irregularity, and then from CA to SC under Rule 45
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RIGHTS OF LEGITIMATE LABOR ORGANIZATION Article 242. Rights of legitimate labor organizations. A legitimate labor organization shall have the right: To act as the representative of its members for the purpose of collective bargaining; To be certified as the exclusive representative of all the employees in an appropriate bargaining unit for purposes of collective bargaining; To be furnished by the employer, upon written request, with its annual audited financial statements, including the balance sheet and the profit and loss statement, within thirty (30) calendar days from the date of receipt of the request, after the union has been duly recognized by the employer or certified as the sole and exclusive bargaining representative of the employees in the bargaining u nit, or within sixty (60) calendar days before the expiration of the existing collective bargaining agreement, or during the collective bargaining negotiation; To own property, real or personal, for the use and benefit of the labor organization and its members; To sue and be sued in its registered name; and To undertake all other activities designed to benefit the organization and its members, including cooperative, housing, welfare and other projects not contrary to law. Notwithstanding any provision of a g eneral or special law to the contrary, the income and the properties of legitimate labor orga nizations, including grants, endowments, gifts, donations and contributions they may receive from fraternal and similar organizations, local or foreign, which are actually, directly and exclusively used for their lawful purposes, shall be free from taxes, duties and other assessments. The exemptions provided herein may be withdrawn only by a special law expressly repealing this provision. (As amended by Section 17, Republic Act No. 6715, March 21, 1989) Article 277. Miscellaneous provisions. All unions are authorized to collect reasonable membership fees, union dues, assessments and fines and other contributions for labor education and research, mutual death and hospitalization benefits, welfare fund, strike fund and credit and cooperative undertakings. (As amended by Section 33, Republic Act No. 6715, March 21, 1989) xxx SUMMARY OF THE RIGHTS OF LEGITIMATE LABOR ORGANIZATION: (P-R-I-C-E) 1.
RIGHT OF REPRESENTATION (a) To act as the representative of its members for the purpose of collective bargaining- acts as representative of union and non union members
Who is the representative? The Legitimate Labor Organization
(b) To be certified as the exclusive representative of all the employees in an appropriate bargaining unit for purposes of collective bargaining Methods: 1.
certification election
2.
voluntary recognition – employer voluntarily recognize the LLO; requires majority of employees in the bargaining unit; there must be a joint agreement of union and employer
Note: Direct Certification is no longer allowed as the will of the majority is frustrated. Not anymore recognized 2.
RIGHT TO INFORMATION (c) To be furnished by the employer, upon written request, with i ts 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 collecti ve bargaining negotiation;
3.
RIGHT PERTAINING TO A JURIDICAL PERSON/PROPERTY RIGHTS (d) To own property, real or personal, for the use and benefit of the labor organization and its members (e) To sue and be sued in its registered name; and
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(f) To undertake all other activities designed to benefit the organization and its members, including cooperative, housing, welfare and other projects not contrary to law. 4.
EXEMPTION FROM TAXES
Income and properties received including donations that are actually, directly and exclusively used for their lawful purposes shall be free from taxes, duties and other assessments. (May be withdrawn by state) 5.
RIGHT TO COLLECT UNION DUES, ETC.
ART. 277. Miscellaneous provisions. - (a) All unions are authorized to collect reasonable membership fees, union dues, assessments and fines and other contributions for labor education and research, mutual death and hospitalization benefits, welfare fund, strike fund and credit a nd 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 o ne 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 lab or 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 wh ich they or their u nion 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 i n 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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comes earlier: Provided, That this provision shall apply only to a legitimate labor organization which has submitted the financial report requirements under this Code: Provided, further, that failure of any labor organization to comply with t he periodic financial reports required by law and such rules and regulations promulgated thereunder six (6) months after the effectivity of this Act shall au tomatically result in the cancellation of un ion registration of such labor organization; (???)As amended by Section 16, Republic Act No. 6715, March 21, 1989) The officers of any labor organization sh all not be paid a ny compensation other than the salaries and expenses due to their positions as specifically provided for in its constitution and by-laws, or in a written resolution duly authorized by a majority of all the members at a general membership meeting duly called for the purpose. The minutes of the meeting and the list of participants and ballots cast shall be subject to inspection by the Secretary of Labor or his duly authorized representatives. Any irregularities in the approval of the resolutions shall be a ground for impeachment or expulsion from the organization; The treasurer of any labor organization and every officer thereof who is responsible for the account of such organization or for the collection, management, disbursement, custody or control of the funds, moneys and other properties of the organization, shall render to the organization and to its members a true and correct account of all moneys received and paid by him since he assumed office or since the last day on which he rendered such account, and of all bonds, securities and other properties of the organization entrusted to his custody or under his control. The rendering of such account shall be made: At least once a year within thirty (30) days after the close of its fiscal year; At such other times as may be required by a resolution of the majority of the members of the organization; and Upon vacating his office. The account shall be duly audited and verified by affidavit and a copy thereof shall be furnished the Secretary of Labor. The books of accounts and other records of the financial activities of any labor organiz ation shall be open to inspection by any officer or member thereof during office hours; No special assessment or other extraordinary fees may be levied upon the members of a labor organization unless authorized by a written resolution of a majority of all the members in a general membership meeting duly called for the purpose. The secretary of the organization shall record the minutes of the meeting including the list of all members present, the votes cast, the purpose of the special assessment or fees and the recipient of such assessment or fees. The record shall be attested to by the president. Other than for mandatory activities under the Code, no special assessments, attorney’s fees, negotiation fees or any other extraordinary fees may be checked off from any amount due to an employee without an individual written authorization duly signed by the employee. The authorization should specifically state the amount, purpose and beneficiary of the deduction; and It shall be the duty of any labor organization and its officers to inform its members on the provisions of its constitution and by-laws, collective bargaining agreement, the prevailing labor relations system and all their rights and obligations under existing labor laws. For this purpose, registered labor organizations may assess reasonable dues to finance labor relations seminars and other labor education activities. Any violation of the above rights and conditions of membership shall be a ground for cancellation of union registration or expulsion of officers from office, whichever is appropriate. At least thirty percent (30%) of the members of a union or any member or members specially concerned may report such violation to the Bureau. The Bureau shall have the power to hear and decide any rep orted violation to mete the appropriate penalty. Criminal and civil liabilities arising from violations of above rights and conditions of membership shall continue to be under the jurisdiction of ordinary courts.
RIGHTS: DIP MONEY- CURSE 1.) Political rights- right to vote and be voted for, subject to lawful provisions on qualification and disqualification The members shall directly elect their officers, including those of the national union or federation, to which they or their union is affiliated, by secret ballot at intervals of five (5) years. Qualification of candidates: 1. membership in good standing in the union 2. qualifications may be added as long as NOT arbitrary and unreasonable
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Disqualification: 1.) No person who has been convicted of a crime involving moral turpitude shall be eligible for election as a union officer or for appointment to any position in the union. 2.) Must be an employee. No labor organization shall knowingly admit as members or continue in membership any individual who belongs to a subversive organization or who is engaged directly or indirectly in any subversive activity (not only for candidacy but also membership) 3.) Note: Additional requirements may be made as long as it is reasonable and does not undermine the right to self organization
Term of office is 5 years.
Inclusion or membership in a union depends on the union’s constitution and by laws without prejudice to Art. 277(c)
Eligibility of voters
Only members of the union can take part in the election o f union officers A member in good standing is any person who has fulfilled the requirements for membership in the union and who has neither voluntarily withdrawn from membership nor been expelled or suspended from membership after appropriate proceedings consistent with the lawful provisions of the union’s constitution and bylaws; must not be a delinquent member (non payment of union dues or violation of constitution and bylaws) It may defer eligibility to vote by requiring a reasonable period of p rior 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 o pportunity 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 d uly 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 ex penses and right to acces s 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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Every payment of fees, dues or other contributions by a member shall be evidenced by a receipt signed by the officer or agent making the collection and entered into the record of the organization to be kept and maintained for the purpose. Every income or revenue of the organization shall be evidenced by a record showing its source, and every expenditure of its funds shall be evidenced by a receipt from the person to whom the payment is made, which shall state the date, place and purpose of such payment. Such record or receipt shall form part of the financial records of the organization. The books of accounts and other records of the financial activities of any labor organization shall be open to inspection by any officer or member thereof during office hours; D.) Right to vote on officer ’s compensation The officers of any labor organization shall not be paid any compensation other than the salaries and expenses due to their positions as specifically provided for in its constitution and by-laws, or in a written resolution duly authorized by a majority of all the members at a general membership meeting duly called for t he purpose. E.) Right to vote on proposed special assessments or the me mber’s written authorization No special assessment or other extraordinary fees may be levied upon the members of a labor organization unless authorized by a written resolution of a majority of all t he members in a general membership meeting duly called for the purpose. Other than for mandatory activities under the Code, no special assessments, attorney’s fees, negotiation fees or any other extraordinary fees may be checked off from any amount due to an employee without an individual written authorization duly signed by the employee. The authorization should specifically state the amount, purpose and beneficiary of the deduction
DUTIES 1.Payment of union dues (applies both to union and non union members) Art 248(e) Employees of an appropriate bargaining unit who are not members of the recognized collective bargaining agent may be assessed a reasonable fee equivalent to the dues and other fees paid by members of the recognized collective bargaining agent, if such non-union members accept the benefits under the collective bargaining agreement. Union dues – reasonable amount collected by the union among its members ; regular mandatory contribution to union funds Rule of thumb: must NOT be arbitrary, excessive, and unreasonable Special assessment- not the same as union dues; Requirement for special assessment: 1.
must be authorized by a written resolution of majority of all members
2.
state the purpose for the special assessment
Fines and Forfeitures – disciplinary measures imposed by the union to erri ng members (delinquent members) Members of a legitimate labor organization has the duty to contribute funds but subject to the caveat of excessive fees, fines or forfeitures. Manner of Collection 1.) Personal 2.) Check-off
ELECTION OF UNION OFFICERS AND QUALIFICATIONS ART. 241 (c) The members shall directly elect their officers, including those of the national union or federation, to which they or 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;
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(See rule XII DO 40-33) A.) If there is an agreement among the members or any provision in the Constitution and by -laws providing for the procedures in the election of union officers – the agreement or the constitution or the by-laws shall be followed. B.) If there is none- The following guidelines shall be followed: I.) WHERE THERE IS NO DISPUTE OVER CONDUCT OF ELECTION OF OFFICERS
II.)WHERE THERE IS DISPUTE OVER CONDUCT OF ELECTION OF OFFICERS
1.) Constitution of a Committee on E lection
1.) Filing of Petition
Who shall constitute? President of the Labor organization.
A.) Where to file:
When shall the constitution be made? Within 60 days before the expiration of the terms of the incumbent officers.
Regional Office: independent labor union or chartered local
Composition: at least 3 members who are not running for any position. If there are identifiable parties within the organization, each shall have equal representation.
Bureau or Regional Office - federations, national or industry unions and trade union centers
2.) Election or designation of chairman of the Committee The members shall elect their chairman among themselves and in case of disagreement; the president shall designate the chairman. Powers and duties of the committee - set the date, time and venue of the election - prescribe the rules on the qualification and eligibility of candidates and voters - prepare and post the voter’s list and the list of qualified candidates - accredit the authorized representatives of the contending parties
-But shall be heard and resolved by the Bureau. B.) Grounds: a.) Expiration of officer’s term and their neglect or failure to call an election of new officers. b.) The labor organization’s constitution and by laws do not provide for the manner by which said election be conducted and the intervention of t he Department is necessary. C.) Manner - Filing of petition for the conduct of election by at least 30% of the members of the labor organization NB!! Same rule applies where there is nullification of election of officers, i mpeachment, expulsion, etc... D.) Formal requirements of the complaint or petition .
-supervise the actual conduct of election and canvass the votes to ensure the sanctity of the ballot.
In writing, verified under oath containing the following:
-keep minutes of the proceedings
a.) name, address and other personal circumstances of the complainants or petitioner
- be the final arbiter of all election protests -proclaim winners -prescribe such other rules as may facilitate the orderly conduct of election. 3.) Raffle of an election officer (Committee on elections) 4.) Pre-election Conference - Issuance by the election officer of notice of pre election conference upon the contending candidates which shall be scheduled within 10 days from receipt of assignment. -the pre-election conference shall set the mechanics for the election and shall determine: a.) date, time and place of the election, which shall not be later than 45 days from the date of the first pre-election conference and shall be on a regular working day and within
b.) name, address and other personal circumstances of the respondents or the persons charged. c.) nature of the complaint or petition. d.) facts and circumstances surrounding the complaint or petition. e.) causes of action or specific violations committed f.) a statement that the administrative remedies provided for in the constitution and by laws have been exhausted or such remedies are not readily available to the complainants or petitioners through no fault of his own or compliance with such administrative remedies does not apply to complainants or petitioners. g.)Reliefs prayed for h.) certificate of non-forum shopping and
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the employer’s premises unless circumstances otherwise require. b.) list of eligible and challenged voters c.) number and location of the polling places or booths and the number of ballots to be prepared with appropriate translations if necessary. d.) name of watchers or representatives and their alternates for each of the parties during election e.) mechanics and guidelines Failure of the party to appear in the pre-election conference despite notice shall be considered as waiver of the right to be heard. However not to subsequent notices. There shall be minutes of pre election conference acknowledged by the parties by their signatures. (NB!! Since the Committee on Elections is vested with the powers, the election officer is under their supervision and control.) 5.) Qualifications of voters All employees who are members of the said legitimate labor organization shall be eligible to vote. An employee dismissed from work but has contested the legality of the dismissal in appropriate forum at the time of the issuance of the order for the conduct of election of officers shall be a qualified voter unless there is a dismissal by final judgment at the time of the conduct of the election. All contested voters are allowed to vote in case of disagreement over the voter’s list but their votes shall be segregated. (NB!! The committee on election may provide for additional qualifications)
i) Other relevant matters 2.) Raffle of case – for determining the Med-Arbiter or Hearing Officer who shall be assigned to the case in case it is filed with the regional office. 3.)Notice of Preliminary Conference The Med-Arbiter or Hearing officer shall prepare notice of preliminary conference. It shall be scheduled within 10 days from receipt of the complaint or petition. The Med Arbiter or Hearing Officer shall cause the service of summons to the respondents named directing him to answer before the preliminary conference and to appear on the preliminary conference. 4.)Conduct of Preliminary Conference Exertion of effort by the Med- arbiter or Hearing officer for amicable settlement. If there is amicable settlement- decision based on compromise shall be issued by the MA or HO. If none- The MA or HO shall proceed with stipulation of facts, limitation of issues, clarificatory questioning and submission of laws and jurisprudence to support each claim. 5.) Hearing 6.)Affirmation of testimonial Evidence Any affidavit submitted by a party to prove his claim or defenses shall be affirmed by his presentation before the Med-Arbiter or Hearing officer otherwise such evidence is inadmissible unless the party against whom such affidavit is used admits the allegation. 7.)Filing of Pleadings and Position Papers
6.) Posting of Notices
Within 25 day period prescribed for the hearing. If the case is already submitted for decision, no other pleading is allowed
The election officer shall cause the posting of notice of election at least 10 days before the actual date in 2 conspicuous in the company premises.
8.)Hearing
7.) Secrecy and sanctity of the ballot The Election Officer together with the authorized representatives of the contending candidates and the employers shall before the start of the actual voting, inspect the polling place, the ballot boxes and the polling booths. To ensure secrecy of the ballot. 8.) Preparation of ballot The election officer shall prepare the ballots in English, Filipino or the local dialect corresponding to the number of voters and a reasonable number of extra ballots.
9.) Decision The Bureau, Med-Arbiter or Regional Director as the case shall have 20 days to decide complaint or petition. The decision shall state facts, findings conclusion and relief granted. 10.)Appeal appeal to the Bureau- decision of Med-Arbiter and Regional Director within 10 Days from receipt thereof. Appeal to the SOLE – decision of the Bureau director
9.)Voting
-It shall be verified under oath and consists of memorandum on appeal stating grounds relied upon with supporting arguments and evidence.
10.) Challenging of votes
-No appeal- decision becomes final after 10 days from receipt
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Any authorized representative of the candidates may challenge a vote before deposited in the ballot box on the following grounds: (a) No employer-employee relationship exists between the voter and the company. (b) That the voter is not a member of the appropriate bargaining unit.
by the parties of the decision. -only 1 Motion for reconsideration is allowed
If the decision calls for election of candidates then follow the Constitution and by-laws if there is a procedure for election of officers stated therein. If there is no such procedure, then follow the omnibus rules. (see other side of the table)
11.) Procedure in the Challenge of Votes If a vote is properly challenged, the election officer shall place the ballot in an envelope sealed in the presence of the voter, contending candidates and employer. The election officer shall note all the challenges in the minutes of the election. If the number of segregated voters will materially affect the results of the election, the envelopes shall be opened and question of eligibility shall be passed upon. 12.) On the spot questions The election officer shall rule on any question relating to and raised during the conduct of election. (Example appreciation of ballots) but not if the ground is absence an employeremployee relationship or if voter is not a member of an appropriate bargaining unit. NB!! The Committee on Election is the final Arbiter 13.) Protest; when perfected Any party in interest may file a protest based on the conduct or mechanics of the election. It shall be recorded in the minutes of the election proceedings otherwise it is waived. It shall be formalized with the Committee on Election within 5 days after the close of the election proceedings. If not recorded or formalized, it shall be deemed dropped. Why with the committee and not the Med Arbiter as provided in the rules? Because The Committee on Election are the ones vested with the power to proclaim the winners (implied powers). The Med - Arbiters p ower to proclaim pertains to the conduct of certification elections 14.) Canvassing of Votes Votes shall be counted and tabulated by the election officer in the presence of the representatives of the contending unions. The Election officer shall give each representative a copy of the minutes of election proceedings and the results of the election. The ballots and the tally sheet shall be sealed in an envelope signed by the Election officer and the representatives of contending union and transmitted to the Committee on Elections together with the minutes and results of the election within 24 hours from completion of canvass. 15.) Conduct of Election and Canvass of Votes The election precincts shall open and close on the date and time agreed upon during the pre-election conference. The
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opening and canvass shall proceed after the precincts have closed. 16.) Failure of Election Where the number of votes cast shall be in the election is less than the majority of the number of eligible voters and there are no material challenged votes, the election officer shall declare failure of election. NB!! The Committee on Election is the final Arbiter 17.) Effect of Failure of Election A failure of election shall not bar the filing of a motion for the immediate holding of another election within 6 months from declaration of failure of election. 18.)Action on the Motion Within 24 hrs from receipt of the motion, the Election Officer shall immediately schedule the conduct of another election within 15 days from receipt of the motion and cause the posting of the notice of election at least 10 days prior to the scheduled date in 2 conspicuous places in the establishment. The same guidelines and list of voters shall be used in the election. (NB!! subject to the conformity of the Committee on Election) 19.) Proclamation and Certification of the result of the Election Who shall proclaim? Committee on Elections The Election officer shall transmit the results to them.
CHECK- OFF PROVISION (ART. 113(B)) Art. 113 (b) Wage deduction (b) For union dues, in cases where the right of the worker or his union to check -off has been recognized by the employer or authorized in writing by the individu al worker concerned; and
A method agreed between the management and the representative union of deducting from an employee’s pay at prescribed period, the amounts due the union for fees, fines or assessment. The amount and collection of union dues are questions that affect the entire membership, hence they have to be approved by the members themselves
Dues- payments to meet the union’s general and current obligations; payment must be regular, periodic, and uniform
Assessment- payments used for a special purpose, especially if required for a limited time
Special assessment, attorney’s fees, negotiation fees may be checked off form any amount due an employee with an individual written authorization duly signed by the employee
Rule XXV Section 4. Check off from non members – Pursuant to Article 248 (e) of the Code, the employer shall check off from non-union members within a collective bargaining unit the same reasonable fee equivalent to the dues and other fees normally paid by union members without the need for individual check off authorizations
Agency fee- union dues which a non union member pays to the union because he benefits from the CBA negotiated by the union; the union served as the employee’s agent
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Jurisdiction over check off disputes: Regional director of DOLE
DISAFFILIATION: MEMBERS & UNION AFFILIATION
An affiliate is: a. an independently registered union that enters into an agreement of affiliation with a federation or a national union b. a chartered local which applies for and is granted an independent registration but does NOT disaffiliate from its mother federation or national union
Reasons to affiliate- to increase bargaining power like more resources (financial, bargaining skill) a. to secure support or assistance during the formative stage of unionization b. to utilize expertise in preparing and pursuing bargaining proposals c. to marshal mind and manpower in the course of group action
An independent union who wants to affiliate with a federation or national union submits the issue to its members. When majority of them vote affirmatively, a resolution or request to affiliate is presented to the chosen federation or national u nion. If the federation or national union accepts the affiliation it offers a contract of affiliation. The relationship between the “mother” and” daughter” union is therefore contractual, binding both sides. The mother assists in bargaining with the employer or manning the picket line. The daughter in turn remits parts of the union dues usually fifty percent.
Relationship between a local or chapter and the labor federation or national union is generally understood to be that of agency, where the local is the principal and the federation is the agent Affiliation by a duly registered union with a national union or federation does not cause the local union to lose its legal personality. DISAFFILIATION The affiliate may disaffiliate but must observe the terms of the contract. It is not prohibited but can be restricted by the contract of affiliation. (Eg.. The number of votes needed to authorize disaffiliation to the time disaffiliation may be done) In disaffiliating, the local union was merely exercising its primary right to self organization for the effective enhancement and protection of common interest. In the absence of enforceable provisions in the federation’s constitution preventing disaffiliation of a local union, a local may sever its relationship with its parents. The right of the affiliate to disaffiliate may be exercised only when circumstances so warrant. Generally, a labor union may disaffiliate from the mother union to form a local or independent union only during the 60-day freedom period immediately preceding the expiration of the CBA. It must be effected by the majority of the members of the bargaining unit. When a union which is not independently registered disaffiliates from the federation, it is not granted the rights and privileges to a legitimate labor organization. When a local union disaffiliates from a national union or federation, the latter ceases to be entitled to check-off dues.
The right to disaffiliate by the local union from its mother union or federation, is a constitutionally-guaranteed right which may be invoked by the former at any time. It is not an act of disloyalty on the part of the local union nor is it a violation ofthe “union security clause” in the CBA. In the absence of specific provisions in the federation’s constitution prohibiting disaffiliation or the declaration of autonomy of a local union, a local may dissociate with its parent union. Thus, in one case, it was held that there can be no disloyalty to speak of since there is no provision in the federation’s constitution which specifically prohibits disaffiliation or declaration of autonomy. The local union, by disaffiliating from the old federation to join a new federation, is merely exercising its primary right to labor organization for the effective enhancement and protection of common interests. Absent any enforceable provisions in the
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federation’s constitution expressly forbidding disaffiliation of a local union, a local union may sever its relationship with its parent union.
Once the fact of disaffiliation has been manifested beyond doubt, a certification election is the most expeditious way of determining which labor organization is to be t reated as the exclusive bargaining agent. Disaffiliation should always carry the will of the majority. It cannot be effected by a mere minority group of union members. (Villar vs. Inciong, 121 SCRA 444). The obligation to check-off federation dues is terminated with the valid disaffiliation of the local union from the federation with which it was previously affiliated. To disaffiliate is a right, but to observe the terms of affiliation is an obligation. It was held in Philippine Skylanders, Inc. vs. NLRC, (G. R. No. 127374, January 31, 2002), that the right of a local union to disaffiliate from its mother federation is not a novel thesis unillumined by case law. In the landmark case of Liberty Cotton Mills Workers Union Vs. Liberty Cotton Mills, Inc. [No. L-33987, September 4, 1975, 66 SCRA 512], the Supreme Court upheld the right of local unions to separate from their mother federation on the ground that as separate and voluntary associations, local unions do not owe their creation and existence to the national federation to which they are affiliated but, instead, to the will of their members. The sole essence of affiliation is to increase, by collective action, the common bargaining power of local unions for the effective enhancement and protection of their interests. Admittedly, there are times when without succour and support local unions may find it hard, unaided by other support groups, to secure justice for themselves. Yet the local unions remain the basic units of association, free to serve their own interests subject to the restraints imposed by the constitution and by-laws of the national federation, and free also to renounce the affiliation upon the terms laid down in the agreement which brought such affi1iation into existe nce. Such dictum has been punctiliously followed since t hen. Upon an application of the afore-cited principle to the issue at hand, the impropriety of the questioned Decisions becomes clearly apparent. There is nothing shown in the records nor is it claimed by AFLU that the local union was expressly forbidden to disaffiliate from the federation nor were there any conditions imposed for a valid breakaway. As such, the pendency of an election protest involving both the mother federation and the local union did not constitute a bar to a valid disaffiliation. Neither was it disputed by PAFLU that 111 signatories out of the 120 members of the local union, or an equivalent of 92.5% of the total union membership supported the claim of disaffiliation and had in fact disauthorized PAFLU from instituting any complaint in their behalf. Surely, this is not a case where one (1) or two (2) members of the local union decided to disaffiliate from the mother federation, but it is a case where almost all loca1 union members decided to disaffiliate. It was entirely reasonable then for PSI to enter into a collective bargaining agreement with PSEA-NCW. As PSEA had validly severed itself from PAFLU, there would be no restrictions which could validly hinder it from subsequently affiliating with NCW and entering into a collective bargaining agreement in behalf of its members.
Disaffiliation of independently-registered union and chartered local, distinguished. The disaffiliation of an independently-registered union does not affect its legitimate status as a labor organization. However, the same thing may not be said of a union which is not independently-registered (chartered local). Once a chartered local disaffiliates from the federation, it ceases to be entitled to the rights and privileges granted to a legitimate labor organization. It cannot file a petition for certification election. (Villar vs. Inciong, 121 SCRA 444, April 20, 1983).
The CBA continues to bind the members of the new or disaffiliated and independent union up to the CBA’s expiration date
INTRA- UNION & INTER-UNION DISPUTES: JURISDICTION OF BLR (ART. 226); OTHER MATTERS Article 226. Bureau of Labor Relations. The Bureau of Labor Relations and the Labor Relations Divisions in the regional offices of the Department of Labor, shall have original and exclusive authority to act, at their own initiative or upon request of either or both parties, on all inter -union and intra-union conflicts, and all disputes, grievances or problems arising from or affecting labor -management relations in all workplaces, whether agricultural or non-agricultural, except those arising from the implementation or interpretation of collective bargaining agreements which shall be the subject of grievance procedure and/or voluntary arbitration. The Bureau shall have fifteen (15) working days to act on labor cases before it , subject to extension by agreement of the parties. (As amended by Section 14, Republic Act No. 6715, March 21, 1989
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Intra-Union Dispute – refers to any conflict between and among union members, including grievances arising from any violation of the rights and conditions of membership, violation of agreement over any provision of the union’s constitution and by-laws, or disputes arising from chartering or affiliation of union. Inter-Union Dispute – refers to any conflict between and among legitimate labor unions involving representation question for purposes of collective bargaining or to any other conflict or dispute between legitimate labor unions.
RULE XI INTER/INTRA-UNION DISPUTES AND OTHER RELATED LABOR RELATIONS DISPUTES Section 1. Coverage. - Inter/intra-union disputes shall include: a.
conduct, or nullification of election of union and workers' association;
b.
audit/accounts examination of union or workers' association funds;
c.
deregistration of collective bargaining agreements;
d.
validity/invalidity of union affiliation or disaffiliation;
e.
validity/invalidity of acceptance/non-acceptance for union membership;
f.
validity/invalidity of voluntary recognition;
g.
opposition to application for union and CBA registration;
h.
violations of or disagreements over any provision constitution by-laws of a union or workers' association ;
i.
disagreements over chartering or registration of labor organizations or the registration of collective bargaining agreements;
j.
violations of the rights and conditions of union or workers' association membership;
k.
violations of the rights of legitimate labor organizations, except interpretation of collective bargaining agreements;
l.
validity/invalidity of impeachment/expulsion/suspension or any disciplinary action meted against any officer and member including those arising fron non-compliance with the reportorial requirements under Rule V;
m.
such other disputes or conflicts involving the rights to self-organization, union membership and collective bargaining 1.
between and among legitimate labor organizations; and
2.
between and among members of a union or workers' association.
Section 2. Coverage. - Other related labor relations disputes, not otherwise covered by Article 217 of the Labor Code, shall include: a. any conflict between: 1. a labor union and the employer; or 2. a labor union and a group that is not a labor organization; or 3. a labor union and an individual who is not a member of such union; b. cancellation of registration of unions and workers associations filed by individual/s other than its members or group that is not a labor organization; and c. a petition for interpleader involving labor relations. What are the cases of inter/Intra- union dispute? 1.) Cancellation of registration of labor organization filed by its members or by another labor organization; 2.) Conduct of election of union and worker’s association officers/ nullification of election of union and worker’s association; 3.) Audit/ accounts examination of union or worker’s association funds; 4.) Deregistration of Collective bargaining agreements; 5.) Validity/ invalidity of union affiliation or disaffiliation; 6.) Validity/ invalidity of acceptance/ non-acceptance for union membership; 7.) Validity/ invalidity of impeachment/ expulsion of union and worker’s association officers and members; 8.) Validity/ invalidity of voluntary recognition; 9.) Opposition to application for union and CBA registration; 10.) Violations of or agreements over any provision in a union or worker’s association constitution and by-laws;
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11.) Disagreements over chartering or registration of labor organizations and CBA’s 12.) Violations of the rights and conditions of workers’ association membership; 13.) Violations of the rights of legitimate labor organizations except interpretation of CBA; 14.) Such other disputes or conflicts involving the rights to self -organization, union membership and collective bargaining: 1.
between and among legitimate labor organization
2.
between and among members of a union or worker’s association.
Other related labor relations disputes shall include any conflict between labor union and the employer or any individual, entity or group that is not a labor organization or worker’s association. This includes: 1.
cancellation of registration of unions and worker’s association; and
2.
petition for interpleader.
Related labor relations dispute- It shall be filed with the BLR but where there is a grievance procedure in the CBA, involving its implementation or interpretation, the voluntary arbitrator is the one authorized. It includes cancellation of registration of a LLO. The Med-Arbiter refers to the officer of the DOLE Regional office or the Bureau of Labor relations officer authorized to hear and decide representation cases, inter/intra-union disputes and other related labor disputes except cancellation of registration dues. If the issue involves conflict between the labor union and the employer, or any individual, entity or group that is not a labor organization of workers, the BLR is bereft of any authority to hear the same.
PROCEDURE: same as that of cancellation of union registration
Effects of filing/pendency of inter/intra-union and other labor related relations disputes The rights, relationship and obligations of the parties litigants against each other and other parties-in-interest prior to the institution of the petition shall continue to remain during the pendency of the petition and until the date of the finality of the decision rendered therein. Thereafter, the rights, relationships and obligations of the parties litigants against each other and other parties-ininterest shall be governed by the decisions so ordered. The filing or pendency of any inter/intra-union dispute and other related labor relations dispute is not a prejudicial question to any petition for certification election and shall not be a ground for the dismissal of a petition for certification election or suspension of proceedings for certification election.
CANCELLATION OF UNION REGISTRATION; GROUNDS; JURISDICTION & PROCEDURE
ART. 238. Cancellation of Registration. - The certificate of registration of any legitimate labor organization, whether national or local, " may be cancelled by the Bureau, after due hearing, only on the grounds specified in Article 239 hereof." RULE XIV CANCELLATION OF REGISTRATION OF LABOR ORGANIZATIONS “ Section 1. Cancellation of Registration; Where to file. - Subject to the requirements of notice and due process, the registration of any legitimate independent labor union, chartered local/chapter and workers' association may be cancelled by the Regional Director upon the filing of a petition for cancellation of union registration, or application by the organization itself for voluntary dissolut ion. The petition for cancellation or application for voluntary dissolution shall be filed in the regional office which issued its certificate of registration or creation.
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In the case of federations, national or industry unions and trade union centers, the Bureau Director may cancel the registration upon the filing of petition for cancellation or application for voluntary dissolution i n the Bureau of Labor Relations” A.)Where to file? Regional Director- for cancellation of 1.) Independent labor union 2.) Chartered local 3.) Worker’s association Bureau Director- for cancellation of 1.) Federations 2.) National or industry unions 3.) Trade union centers B.) Who can file the petition? 1.) Members of the labor organization concerned –for actions involving violation of article 241 2.) Any party in interest- all other grounds "ART. 239. Grounds for Cancellation of Union Registration. - The following may constitute grounds for cancellation of union registration: (a) Misrepresentation, false statement or fraud in connection with the adoption or ratification of the constitution and by-laws or amendments thereto, the minutes of ratification, and the list of members who took part in the ratification; (b) Misrepresentation, false statements or fraud in connection with the election of officers, minutes of the election of officers, and the list of voters; (c) Voluntary dissolution by the members." Discussion: (a) Misrepresentation, false statement or fraud in connection with the adoption or ratification of the constitution and by -laws or amendments thereto, the minutes of ratification, and the list of members who took part in the ratification;
Constitution- general principles and philosophy of the labor organization
By-laws- regulations, ordinances, rules or laws adopted by an association for its internal governance, including rules for routine matters such as calling meetings and the like
The by-laws can put conditions for membership, the name of officers, the powers of th e union with regards the members, etc.
What are examples of Union’s powers? Collection of union dues, collection for fines and forfeitures
The LC does not specifically provide for the contents of the constitution and by-laws.
(b) Misrepresentation, false statements or fraud in connection with the election of officers, minutes of the election of officers, and the list of voters;
The officers should be chosen by the members because they are to act in the interest of the members.
Term of office of officers: 5 years
Minimum condition for membership: YOU MUST BE AN EMPLOYEE in the establishment
Minimum conditions to be an officer: a.
must be a member in good standing (not delinquent)
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b.
not a member of a subversive organization (however, there is no longer any law which declared an organization subversive)
c.
not convicted of a crime involving moral turpitude
(c) Voluntary Voluntary dissolution by the members." -
How done? Article 239-A. (a) 2/3 votes of the general membership (b) in a meeting duly called for the purpose to dissolve the organization, (c) an application to cancel registration is submitted by the board of the organization attested to by the president thereof. (D) filed in the regional office which issued certificate of registration
ART. 239-A. Voluntary Cancellation of Registration. Registration. - The registration of a legitimate labor organization may be cancelled by the organization itself. Provided, That at least two-thirds of its general membership votes, in a meeting duly called for that purpose to dissolve the organization: Provided, further, That an application to cancel registration is thereafter submitted by the board of the organization, attested to by the president thereof."
Generally, it is registration which confers legal personality to a labor organization. In the case of local or charter it is the issuance of the Charter Certificate.
The number of grounds for cancellation was lessened in order to promote the creation of unions and to lessen the opportunities of some parties to dissolve the union. Also it abides with ILO 97 (freedom of organization and the right to organize)
OLD GROUNDS UNDER (DO 4040 -33) (a) Misrepresentation, (a) Misrepresentation, false statement or fraud in connection with the adoption or ratification of the constitution and by-laws or amendments thereto, the minutes of ratification, and the list of members who took part in the ratification; *(b) Failure *(b) Failure to submit the documents mentioned in the preceding paragraph within 30 days from adoption or ratification of the constitution and byby-laws or amendments thereto. (c) Misrepresentation, (c) Misrepresentation, false statements or fraud in connection with the election of officers, minutes of the election of officers, and the list of voters; *(d) Failure *(d) Failure to submit these documents together with the list of newly elected or appointed officers and their postal address within 30 days from election. (e) Voluntary (e) Voluntary dissolution by the members ( new under RA 9481) *(f) Failure *(f) Failure to submit the annual report to the Bureau within 30 days after the close of every fiscal year and misrepresentation, false entries or fraud in the preparation of financial report. (g) Acting (g) Acting as labor contractor or engaging in the “cabo” system or otherwise engaging in any activity prohibited by law. law. (h) Entering into CBA which provides for terms and conditions of employment below the minimum standards established by law (i) Commission of any acts enumerated under Article 241 based on thi s ground may be granted unless supported by at least 30% of all members of the respondent labor organization; (j) Asking (j) Asking for or accepting attorney’s fees or negotiation fees from the employer; (k) Other than for mandatory activities under the labor code checking off special assessments or any other fees without duly signed individual written authorizations of the members; *(l) Failure to submit list of individual members to the bureau once a year or whenever required by the Bureau (m) Failure to comply with the requirement of registration prescribed under the rules. In addition, a federation or national union or worker’s association may revoke the charter on the ground of:
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1.) Disloyalty 2.) Other such ground as may be specified in the constitution and byby-laws of the federation, national union or worker’s association. Note: Pars b, d f and l or those with asterisks are no longer grounds for cancellation of registration but are grounds to expel, suspend or fine erring officers or members. Art. 240. Equity of the incumbent. All existing federations and national unions which meet the qualifications of a legitimate labor organization and none of the grounds for cancellation shall continue to maintain their existing affiliates regardless of the nature of the industry and the location of the affiliates. affiliates.
“Cancellation Proceedings” refer to the legal process leading to the revocation of the legitimate status of a union or workers’ association. (Section 1 [g], Rule I, Book V, Rules to Implement the Labor Code, as amended by Department Order No. 40-03, Series of 2003, [Feb. 17, 2003]). Subject to the requirements of notice and due process, the registration of any legitimate independent labor union, chartered local and workers' association may be cancelled by the Regional Director, or in the case of federations, national or industry unions and trade union centers, by the Bureau Director, upon the filing of an independent complaint or petition for cancellation. (Section 1, Rule XIV, Book V, Ibid.). The cancellation of a certificate of registration is the equivalent of snuffing out the life of a labor organization. For without such registration, it loses - as a rule - its rights under the Labor Code. The union is indisputably entitled to be heard before a judgment could be rendered cancelling it s cert ificate 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 certifi cation 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. 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 lea st 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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ART. ART. 245245 - A. A. Effect of Inclusion as Members of Employees outside the Bargaining Unit. - The inclusion as union members of employees outside the bargaining unit shall not be a ground for the cancellation of the registration of the union. Said employees are automatically deemed removed from the list of membership of said union.”
RULE XIV CANCELLATION OF REGISTRATION OF LABOR ORGANIZATIONS
“Section 6. Prohibited grounds for cancellation of registration – the inclusion as union members of employees who are outside the bargaining unit shall not be a ground to cancel the union registration. The ineligible employees are automatically deemed removed from the list of membership of the union. The affiliation of the rank -and - file file and supervisory unions operating within the same establishment to the same federation or national union shall not be a ground to cancel the registration of either union.”
PROCEDURE Note: Cancellation of registration is considered an i nter or intraintra-union dispute 1.
Complaint or Complaint or petition filed before the Bureau or Regional office. Sec4 rule xi; rule xiv d.o 2008 How? File:
2.
a.
a petition for cancellation of union registration
b.
an application by the organization itself for voluntary dissolution
Formal requirements of the complaint or petition . In writing, verified under oath containing the following: a.
name, address and other personal circumstances of the complainants or petitioner;
b.
name, address and other personal circumstances of the respondents or the persons charged;
c.
nature of the complaint or petition;
d.
facts and circumstances surrounding the complaint or petition;
e.
causes of action or specific violations committed;
f.
a statement that the administrative remedies provided for in the constitution and by laws have been exhausted or such remedies are not readily available to the complainants or petitioners through no fault of his own or compliance with such administrative remedies does not apply to complainants or petitioners;
g.
Reliefs prayed for;
h.
certificate of nonnon-forum shopping; and
i.
other relevant matters.
3.
Raffle of case – for determining the MedMed-Arbiter or Hearing Officer who shall be assigned to the case in case it is filed with the regional office.
4.
Notice of Preliminary Conference The MedMed-Arbiter or Hearing officer shall prepare notice of preliminary conference. It shall be scheduled within 10 days from receipt of the complaint or petition. The Med Arbiter or Hearing Officer shall cause the service of summons to the respondents named directing him to answer before th e preliminary conference and to appear on the preliminary conference.
5.
Conduct of Preliminary Conference Exertion of effort by the MedMed-Arbiter or Hearing officer for amicable settlement.
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If there is amicable settlement- decision based on compromise shall be issued by the Med- arbiter or Hearing officer. If none- The Med-Arbiter or Hearing officer shall proceed with stipulation of facts, limitation of issues, clarificatory questioning and submission of laws and jurisprudence to support each claim. 6.
Hearing
7.
Affirmation of testimonial Evidence Any affidavit submitted by a party to prove his claim or defenses shall be affirmed by his presentation before the Med-Arbiter or Hearing officer otherwise such evidence is inadmissible unless the party against whom such affidavit is used admits the alleg ation.
8.
Filing of Pleadings and Position Papers Within 25 day period prescribed before the hearing. If the case is already submitted for decision, no other pleading i s allowed
9.
Hearing
10. Decision The Bureau, Med-Arbiter or Regional Director as the case shall have 20 days to decide complaint or petition. The decision shall state facts, findings conclusion and relief granted. 11. Appeal Appeal to the Bureau- decision of Med-Arbiter and Regional Director within 10 Days from receipt thereof. Appeal to the SOLE – decision of the Bureau director It shall be verified under oath and consists of memorandum on appeal stating grounds relied upon with supporting arguments and evidence.
No appeal- decision becomes final after 10 days from receipt by the parties.
only 1 Motion for reconsideration is allowed from decision of Bureau or SOLE in its appellate jurisdiction.
EFFECT OF CANCELLATION "ART. 238-A. Effect of a Petition for Cancellation of Registration. - A petition for cancellation of union registration shall not suspend the proceedings for certification election nor shall it prevent the filing of a petition for certification election. In case of cancellation, nothing herein shall restrict the right of the union to seek just and equitable remedies in the appropriate courts."
it shall operate to divest t he local/chapter of their status as l egitimate labor organization
it shall divest the local chapter of its legal personality
INQUIRY INTO UNION’S FINANCIAL ACTIVITIES: VISITORIAL POWER (ART. 274) Article 274. Visitorial power. The Secretary of Labor and Employment or his duly authorized representative is hereby empowered to inquire into the financial activities of legitimate labor organizations upon the filing of a complaint under oath and duly supported by the written consent of at least twenty percent (20%) of the total membership of the labor organization concerned and to examine their books of accounts and other records to determine compliance or non-compliance with the law and to prosecute any violations of the law and the union constitution and by-laws: Provided, That such inquiry or examination shall not be conducted during the sixty (60)-day freedom period nor within the thirty (30) days immediately preceding the date of election of union officials. (As amended by Section 31, Republic Act No. 6715, March 21, 1989) Who: The Secretary of Labor and Employment or his duly authorized representative is hereby empowered to inquire into the financial activities of legitimate labor organizationand to examine their book of accounts and other records.
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Requisite: Upon the filing of a complaint under oath and duly supported by the written consent of at least 20% of the total membership of the labor o rganization concerned. Purpose: 1. To determine compliance or non compliance with the law and 2. to prosecute any violations of the laws and of the union’s constitution and by-laws. Limitations: Inquiry or examination shall not be conducted during the 60- day freedom period nor within 30 days immediately preceding the date of election of union officials.
They need to submit financial reports for the protection of both the State and the members. In order to determine if the funds have been properly used according to their purpose and to monitor where the sources are coming from.
According to Art. 274 of LC, the Sec. of Labor and Employment has jurisdiction over checking the financial records.
The power can be delegated by the SOLE to the BLR. The law says “the SOLE or his duly authorized representative...”
If the officer of the union responsible for the reportorial requirements is not able to comply, it is NOT a ground for cancellation of the union. The 3 grounds are exclusive.
The consequence of failure to comply according to Article 242-A last paragraph is that the erring officer may be subject to suspension, expulsion from membership and any other appropriate penalties.
If there is a mixture of rank-and-file and supervisory employees in the LO Article 245-A provides that it is not a ground for cancellation. Those employees outside the bargaining unit are automatically deemed removed from the list of members of the union.
OTHER POWER OF SECRETARY OF LABOR (ART. 273) Article 273. Study of labor-management relations. The Secretary of Labor shall have the power and i t shall be his duty to inquire into: the existing relations between employers and employees in the Philippines; the growth of associations of employees and the effect of such associations upon employer-employee relations; the extent and results of the methods of collective bargaining in the determination of terms and conditions of employment; the methods which have been tried by employers and associations of employees for maintaining mutually satisfactory relations; desirable industrial practices which have been developed through collective bargaining and other voluntary arrangements; the possible ways of increasing the usefulness and efficiency of collective bargaining for settling differences; the possibilities for the adoption of practical and effective methods of labor-management cooperation; any other aspects of employer-employee relations concerning the promotion of harmony and understanding between the parties; and the relevance of labor laws and labor relations to national development. The Secretary of Labor shall also inquire into the causes of industrial unrest and take all the necessary steps within his power as may be prescribed by law to alleviate the same, and shall from time to time recommend the enactment of such remedial legislation as in his judgment may be desirable for the maintenance and promotion of industrial peace.
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OTHER SPECIAL LAWS: RA 7916, CHAP. 4 (SPECIAL ECONOMIC ZONE ACT OF 1995) CHAPTER IV Industrial Harmony in the Ecozones SECTION 37.Labor and Management Relations. — Except as otherwise provided in this Act, labor and management relations in the ECOZONE shall be governed by the existing Labor Code of the Philippines. Employees and personnel in the ECOZONE enterprises shall receive salaries and benefits and shall enjoy working conditions not less than those provided under the Philippine Labor Code and other relevant laws, issuances, rules and regulations of the Philippine government and the Department of Labor and Employment. SECTION 38.Promotion of Industrial Peace. — In the pursuit of industrial harmony in the ECOZONE, a tripartite body composed of one (1) representative each from the Department of Labor and Employment, labor sector and business and industry sectors shall be created in order to formulate a mechanism under a social pact for the enhancement and preservation of industrial peace in the ECOZONE within thirty (30) days after the effectivity of this Act. SECTION 39.Master Employment Contracts. — The PEZA, in coordination with the Department of Labor and Employment, shall prescribe a master employment contract for all ECOZONE enterprise staff members and workers, the terms of which provide salaries and benefits not less than those provided under this Act, the Philippine Labor Code, as amended, and other relevant issuances of the national government. SECTION 40.Percentage of Foreign Nationals. — Employment of foreign nationals hired by ECOZONE enterprises in a supervisory, technical or advisory capacity shall not exceed five percent (5%) of its workforce without the express authorization of the Secretary of Labor and Employment. SECTION 41.Migrant Worker. — The PEZA, in coordination with the Department of Labor and Employment, shall promulgate appropriate measures and programs leading to the expansion of the services of the ECOZONE to help the local governments of nearby areas meet the needs of the migrant workers. SECTION 42.Incentive Scheme. — An additional deduction equivalent to one-half (1/2) of the value of training expenses incurred in developing skilled or unskilled labor or for managerial or other management development programs incurred by enterprises in the ECOZONE can be deducted from the national government’s share of t hree percent (3%) as provided in Section 24. The PEZA, the Department of Labor and Employment, and the Department of Finance shall jointly make a review of the incentive scheme provided in this section every two (2) years or when circumstances so warrant.
PART I, RULE II, SEC 2 SECTION 2. Protection of Labor - Consistent with Section 2 of the Act, all workers within the ECOZONES shall be assured of their basic rights under the Constitution, including the right to security of tenure and humane conditions of work and right to self-organization.
PART IX, RULE XXIII, SEC. 1-7 PART IX - INDUSTRIAL HARMONY IN THE ECOZONES Rule XXIII - Labor and Management Relations SECTION 1. Objective and Policy - The PEZA adopts a policy of industrial peace and productivity within the ECOZONE thru cooperation between labor and management to eliminate unnecessary conflicts and providing for effective mechanisms in the early settlement of disputes. SECTION 2. Labor Code - The Labor Code of the Philippines shall govern the relationship between labor and management of the ECOZONE registered enterprises. Salaries and benefits and working conditions for personnel employees shall not be diminished beyond those prescribed in the Labor Code and relevant laws, issuances and o ther pertinent rules and regulations of the government. SECTION 3. Labor Center - Consistent with the one stop shop center, a Labor Center shall be established within the ECOZONE. Under the supervision of the ECOZONE Administrator, the Center shall be handled by the ECOZONE's Human Resources Unit in coordination with a Tripartite Oversight Committee composed of a representative from the Department of Labor and Employment, a representative from the labor sector and one from the management sector. It shall serve as a window for all labor related activities and shall offer services for the following: a. MANPOWER POOL - The Labor Center shall maintain a bulletin for job opportunities and an index of job applicants. A manpower bank
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consisting of an index of available work force within the vicinity and neighboring areas of the ECOZONE shall be continually updated and maintained. b. TRAINING - In coordination with the Technical Education and Skills Development Authority (TESDA) created under R.A. 7796, the PEZA shall provide facilities that will assist workers to learn skills, to retrain and enhance acquired skills as the case may be and to provide training modules and materials and other technical assistance and facilitation services. PEZA may likewise solicit coordination with other government agencies or non-government organization for training purposes. SECTION 4. Priority in Hiring - On a best effort basis and in consultation with the local government units, ECOZONE enterprise shall give priority in hiring workers from the immediate community to prevent and to mitigate the migration of workers to other areas. SECTION 5. Migrant Workers - The PEZA, in coordination with the local government unit and other appropriate government and nongovernment organizations, shall implement an integrated program to address the housing, health and social needs of migrant workers. SECTION 6. Tripartite Body - A tripartite body shall be created to formulate a m echanism under a social pact for the enhancement and preservation of industrial peace in the ECOZONE. The body shall b e composed of one (1) representative each from the Department of Labor and Employment, labor and business sectors with the PEZA acting as the Secretariat. The policies and declarations to be formulated by the body shall be embodied in a formal document and disseminated to all parties co ncerned. It shall then act as a, guide in all actions to be taken by the PEZA as well as t he ECOZONE Advisory Council in the maintenance and promotion of sound labor -management relations within the ECOZONE. SECTION 7. Master Employment Contract - The PEZA in coordination with DOLE shall prescribe a master employment contract for every ECOZONE enterprise staff members and workers. The master contract shall indicate the terms and conditions of employment which shall include the following: 1. Salaries and wages according to trades or industry sectors, consistent within the ECOZONE and not less than the m inimum wage prescribed in the region; 2. Summary of benefits given by the enterprise; 3. Terms and employment whether probationary learner or apprentice, permanent, contractual or any other special arrangements; 4. Working hours or periods; and 5. Highlights of pertinent working conditions under the Labor Code of the Philippines. Labor and management are, however, not precluded from entering into a Collective Bargaining Agreement which best reflects their mutual covenants in accordance with the provisions of the Labor Code of the Philippines and other laws and issuances.
ATTY. MARQUEZ’ DISCUSSION
What is unionism in your own idea? (asking only student’s opinion) It is an organized attempt by workers to improve their status by united action. Is it a policy of the state to promote unionism? Yes, under the Consti ART 3 sec8 and LC ART 8 sec3. Why do workers need protection? They need to be protected because ER and EE do not stand in equal footing. Can an individual worker protect his rights? Under existi ng laws workers have the right to security of tenure. C an’t the worker protect himself? Why do they need to be in a UNION? What is there that the state has to promote it? More benefits are obtained in the union because you are given the opportunity to bargain for benefits and privileges. There is a stronger voice to air out your co ncerns and make ER aware of the lacking benefits, and unsatisfactory terms and conditions of work. Individual bargaining is NOT as effective as Collective bargaining. Are you telling me that a collecti ve action is more effective than an individual action? Yes In what sense?
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When they voice out a concern it is not just a concern of one but the concern of most of the workers if not all What is the common concern/grievance/complaint/issue that an individual worker undergoes in a collective action? It could be Wages, hours of work, retirement, etc. The policy of the state to promote unionism is just a principle of law, i want to know the rights of workers guaranteed by the constitution that ensures that this policy to be enforced into reality ok? can you tell us? Under ART 13 sec 3 What does it have to do with unionism? can y ou not attain policy of unionism without the right to self-organization? In order for the workers to be unionized, it must have the right to self-organization, without the latter right, you cannot form a union. What is meant by the right to self organization? It is the right to form a labor union, where you can act collectively and produce better results than individual bargaining. The right to self organization is part and parcel of the right of freedom of association, do we have such provision in the consti w hich promotes right to association? Yes under Art3 bill of rights sec 8 Section 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged. Now it has been said that there are 2 concepts of right to association what are they? Explain each. 1. LIBERTY/freedom- act as he / she pleases according to his will without being prevented by law 2. Power to join or not to join - refers to the right of the person to choose to join or not to join an association, not to be compelled by anybody to join an association that is his power What is the so called negative freedom of association? The right not to join an organization. Once you decide to join, can you choose which organization to join? YES Once you decide to join, can you decide to quit? YES
Now that we know this basic principles on fre edom of association which includes the right to s elf-organization, right to join or not to join an organization, a right to form a labor union, is there any other right guaranteed by the constitution that promotes unionism aside from the right to self-organization? YES, the right to collective bargaining and negotiation JMM: Unionism is an exercise in futility, unle ss you are given the right to collective bargaining and negotiation, after all, unionism i nvolves the collective action by the workers in improving terms and conditions of employment. What is the 3rd right guaranteed by the constitution in order to make the right to self -organization, right to collective bargaining and negotiation effective? Right to engage in peaceful picketing/strike in order for the workers to address their grievances, the workers cannot compel the ER to agree on what they want.
JMM: The right of self-organization is the right to form a union, join a union, or assist in the formati on of a labor union. You can attain st unionism when you have this right. That is the 1 step in achieving this policy of the state. The constitution in order to put flesh and blood on this policy, it has guaranteed this ri ght to self-organization. This guarantee puts the EE on the same level as the ER. Collective bargaining is more effective than individual bargaining. This right is part and parcel of the right to association.. Read what is meant by a Labor Organization. (IRR)
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Is there a definition of what is L abor Union or a Union in the IRR? Yes. Based on the definitions, which is broader the Labor Org. or the Labor Union? Labor Org. JMM: Union is limited to the exercise of the right to collective bargaining. It exists for same purpose. Collective bargaining provides better protection for the workers. Is the right of self-organization recognized by the Labor Code? Yes. Are there any other sources that recognize the right of self-organization aside from the Consti or the LC? Yes. International Conventions. JMM: These rights are not absolute as they are subject to limitations. Not all employees are allowed to exercise these right s. Under the LC, what are the 3 tiered classification of employees for purposes of labor relations? 1.
Managerial
2.
Supervisory
3.
Rank and File
Who are managerial employees? Are they allowed to exercise the right to self-organization? They are the employees vested with the power or prerogative to lay down and execute management policies, to hire, to transfer, to suspend, to lay-off, to recall, to discharge, or to discipline other employees. Managerial employees cannot exercise the right to selforganization. Why are managerial EEs not allowed to join, form, or assist a Labor UNION? These EEs are representatives of the ER. The purpose of the union, i.e. collective bargaining and improvement of the terms and conditions of employment, thus, it would be absurd to let them join because it would like be bargaining with yourself, furthermore, there is an actual conflict of interest. Who are Supervisory employees? Are they allowed to exercise the right of self-organization? They are those who in the interest of the ER technically recommends managerial actions in the exercise of such authority. They are allowed to exercise the right. What is the limitation to their exercise of the right? Art. 245. They are prohibited from membership in the collective bargaining unit of the rank and file. Why are they prohibited? There is an actual or potential conflict of interest that will arise in the areas of: 1.) discipline and 2.) collective bargaining In the area of collective bargaining, why is there a conflict of interest? There is a conflict because these EEs act in the interest of the ER. In co llective bargaining, you try to negotiate wit h the ER for better terms and conditions of employment and if we were to allow these EEs membership they could, in either case, serve the interes t of the their co-members or serve the interest of the ER which is prejudicial to the co-members or ER, as the case may be. In other words, their loyalty is divided to the prejudice of both parties (rank and file union and ER). Can the managerial and the supervisory EEs join together and form their own union? No, because the managerial EEs are absolutely disqualified. Who are the rank and file employees? Those who are neither managerial nor supervisory EEs How soon can they be eligible to be a member of a union? IRR.On the first day of his/her service. How soon are they(those qualified to self-organization) eligible to be member of a labor union?
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Rule II, sec 2 of DO 40-03 For purposes of this Section, any employee, whether employed for a definite period or not, s hall beginningon the first day of his/her service, be eligible for membership o f any labor organization (don’t say at the time he/she is employed) If hired as regular employee, are you eligible on the first day of service? Yes Probationary employee? Yes Casual employee? Yes JMM: The law does not make any distinction on the status of the employee. The law encourages unionism rd
What is the 3 classification of employees not found in LC but deemed excluded from bargaining unit? Confidential employees – they are ineligible of the right to form a union By what authority are they disqualified? “Doctrine of Necessary implication”. Spectra notes What is the reason for disqualification? Because of position or nature of work that may result to conflict of interest. If you are a telecom operator, are you a confidential employee? No. for purposes of labor law, the confidentiality refers to management, policies on specific labor relations. Overhearing people talking is not the confidentiality that is referred to by the law How about messenger? No. the law is specific on the policies pertaining to labor relations. JMM: whether or not you are a confidential employee depends on your duties and responsibilities, not on your title or position. What establishment may these qualified employee exercise theie right self organization? Commercial industrial agricultural religious charitable education institution..etc.(spectra notes) JMM: Even establishment is not established for profit? Yes sir. As long as you employ these workers. For their mutual aid and protection. When is establishment considered commercial? Those that are selling goods and services. (Prepare for example e.gdept store, massage parlor) When is establishment considered industrial? Those engaged in the manufacture and processing of goo ds from raw materials. Example? Student: Cigarette manufacturer ( Marlboro black + clorets) JMM: do you smoke? YOU SHOULD!!! :D How about agricultural?
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Engaged in the growing or planting of crops. JMM: Take a look at article 97of LC. There’s the definition of “agriculture” " Agriculture" includes farming in all its branches and, among other things, includes cultivation and tillage of soil, dairying, the production, cultivation, growing and harvesting of any agricultural and horticultural commodities, the raising of livestock or poultry, and any practices performed by a farmer on a farm as an incident to or in conjunction with such farming operations, but does not include the manufacturing or processing of sugar, coconuts, abaca, tobacco, pineapples or other farm products. So those people working in a farm involving those activities have the right to self-organization, unless expressly disqualified by law. If you go to a farm and the EEs are doing those activities then they are considered as agricultural establishments therefore you have to allow them to exercise the right to self-organization
Next is religious organization, of course it involves secular activities. We don’t need to define that. Give an example of religious organization. Even i f they are not for profit, if they have employees, not disqualified by law, they have the right to self-organization.
What is the religious organization running USC? SVD Sacred heart school? Jesuit JMM: Jesuit organization they are included in the right to self organization Next is medical institutions. Example, hospital, clinics Employees working there have the right to self-organization, Educational institutions EEs here as long as they are not disqualified by law have the right to self-organization. JMM: Again, when you speak of self-organization, it means they have the right to form a union, to join a union, and t he right to assist in the formation of the labor union. That is right to self-organization, that is part of the right to association. So these are the establishments. They are not exclusive, if there are establishments similar to that, then they are also be covered within the scope of the law. What is purpose of the right to self-organization. According to SC it has dual purpose. What are these? 1. Purpose of collective bargaining (in this case you will form a labor union) 2. Purpose of mutual aid and protection, (in this case you will form a labor organization or association) JMM: Pag union, collective bargaining yan all the time.Pag labor organization, may or may not. Pag association, may or may not. It is still part of organization. What do you mean by labor organization? As defined in the implementing rules of DO 40-03 as amended Labor organization – refers to any union or association of ees in private sector which is exist in whole or in part for purpose of CBA, mutual aid, protection,.. or for other lawful purpose
Can you organize workers into association for purpose of supporting a candidate for an elective position? For partylist for example? Yes they may. They can support each other.
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JMM: Di ba, andaming party list of the workers. The workers themselves can form an association for purpose of getting an elective position. So SC two-fold purpose lang pero if you look at it multipurpose na s iya. Ang broad ng purpose.
Now I know that I am a qualified employee to be a member of a labor union. May I know if there are prescribed requirements for me to initiate a labor union in an establishment? You just have to be an employee of the establishment qualified by law. How will you know you are an employee? Apply the four-fold test Yes. Regardless of your status whether casual, regular, that’s what the l aw says. Now I since I am the one who will initiate, I also want to be an officer of the labor union. I want to know if the law has a qualification before one can be an officer of the labor union? Do you need to serve for a month or two? Do you need to be handsome? Pretty? Do you need to have no criminal records? Merun bang qualification or disqualification? Ganun ba y un? I think that is another basic question What is constitution and by-laws and what are the differences of the two? Constitution constitute the general principles of the organization while the by-laws defines the detailed matters of the duties and responsibilities of membership of that labor union Can the union prescribe for qualifications for membership aside from being an EE? Yes, as long as they are not unreasonable and not arbitrary and not contrary. Ikaw nag organize niyan eh, (so like ayaw pagbuot sa akung qualifications, pagbuhat ug imo. Wala man naku girestrict imung right k ay pwede man ka makajoin or make another union) For purposes of LC, minimum qualification to form a union is that you are an employee for officers of union? I leave that to you. What are the kinds of unions?
One of common way in forming a labor union is creating an independent unon, workers may organize themselves by forming an independent union. That is one way of forming a union. What do you mean by independent union? Definition of terms under Dept order 40 In forming and organizing independent union, is there a qualification or requirements to register that independent union? JMM: Class, in an establishment with 100 rank and file employees, workers may organize themselves into a labor union and that is w hat we call a rank and file union. Now, they may organize and register themselves as an independent union. Now, we want to know what are the requirements in registering a labor union. Of course, organizing is getting members. But before we go to the requirements, what agency has the power to register independent union? -Bureau of Labor Relations
So, what are the requirements to register? [art. 234] 1. Payment of P50.00 registration fee
2. Submit the names of the officers, address, principal a ddress of the labor organization, minutes of the organization meeting, list of workers who participated in the organizational meetings *That’s why we have to know the qualifications and disqualifications of an officer, because we need to have officers in order that we can submit their names] [you need to register in order to have a personality separate and distinct from the members]
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3. In case of independent union, names of employees c omprising of at least 20% of the members of the bargaining unit -the 80% may not be a member of t hat union, so it is possible that majority of the workers are not member of that union. Anyway, it is possible for an establishment to have more t han one legitimate labor organization. And this L LO competes to be certified as the exclusive bargaining unit because the law provides there can only be one EBU in the establishment. Bargaining unit-is 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 I(RR) [There is such a thing as a rank and file bargaining unit, a supervisory bargaining unit but no managerial bargaining unit nor a confidential bargaining unit] -An alien can come to the Philippines and work as long as he secures an alien em ployment permit. He can join and assist a labo r union but they CANNOT FORM, provided they have a valid permit and they ar e nationals of a country that grants t he same right to Filipin os. There must be proof in the form of certification from DFA that the country to where the alien belongs has participated in the ratification of ILO convention No. 87 or 98
4. If applicant union has been in existence fo r one or more years, co pies of its annual reports
5. Four copies of the constitution and by-laws of the application....
nd
Qualifications of a candidate [this is in relation to the 2 qualification in registration] 1. Member of Good standing – is any person who has fulfilled t he requirements for membership in the union and who has neither voluntarily withdrawn from membership nor been expelled or suspended from membership after appropriate proceedings consistent with the lawful provisions of the union’s constitution and bylaws; must not be a delinquent member (non payment of union dues or violation of its constitution or bylaws) 2. Qualifications may be added so long as it not arbitrary
Disqualification 1. Convicted of a crime involving moral turpitude- because the position in a labor or ganization is an office of trust, there has to be accountability specially with respect to the union dues (e.g. estafa)
Why is there a need to register? - You can organize without registering it but you just register it in order to become a legitimate labor organization so that it can exercise the rights of an LLO and acquire legal personality 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) -You cannot exercise the right to collective bargaining and negotiation without registration
JMM: Forming and organizing a labor union. We can do that by forming and organizing an independent union or forming and organizing a local or chapter. Let’s start with forming and organizing an independent union. What is the definition of an independent union? It is a labor organization operating at the enterprise level that acquired legal personality through independent registration under Article 234 of the Labor Code
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Requirements to register an independent union: 1.
The name of the applicant labor union, its principal address, the name of its o fficers and their respective addresses, approximate number of employees in the bargaining unit where it seeks to operate, with a stat ement that it is not re ported as a chartered local of any federation or national union;
2.
The minutes of the organizational meeting(s) and the list of employees who participated in the said meeting(s);
3.
The name of all its members comprising at least 20% of the employees in the bargaining unit;
4.
The annual financial reports if the applicant has been in existence for one or more years, unless it has not co llected any amount from the members, in which case a statement to this effect shall be included in the application;
5.
The applicant's constitution and by-laws, minutes of its adoption or ratification, and the list of the members who participated in it. The list of ratifying members shall be dispensed with where the constitution and by -laws was ratified or adopted during the organizational meeting. In such a case, the factual circumstances of the ratification shall be recorded in the minutes of the organizational meeting(s).
That requirement of at least 20% does that tell us that it is possible that in a private enterprise involving the rank and file bargaining unit, there could be 2 or more legitimate labor unions existing? Yes. The other 80% could form their own union if t hey wished to, however, they are not mandated to f orm another union because they have the freedom to join or not to join a union. If there are 2 or more unions, which one has the power to negotiate a CBA with the employer? Depends on who is voluntarily recognized or who is elected in a certification election as the exclusive bargaining agent How is the constitution and by-laws defined? Constitution - provides for the general principles of the organization; where as By-laws - defines the detailed matters of the duties and responsibilities of membership in that labor union Why only the members of the union shall ratify or adopt the constitution or by-laws? Because these are intended to govern the relationship between the organization and its members What is the prescribed number of votes to adopt or ratify the constitution or the by-laws? Majority vote of the members of the union. Is there a registration fee? Yes, fifty pesos. The registration is only a minimal amount in order to promote unionism. What is the purpose of registration? So that the union may exercise the rights of a legitimate labor organization and to acquire legal personality. Does the requirement of registration unduly curtail the constitutional rights of the worker’s to form and organize a labor union? No, it does not because registration is intended to protect the workers from fly-by-night labor organizations who just establish unions for the sake of exacting money from the workers in the form of contributions. Registration is an exercise of the police power of the state to monitor the activities of labor organizations and ensure that the workers are amply protected. Requirements for the creation of a chartered local: Chartering and Creation of a Local Chapter. - A duly registered federation or national union may directly create a local chapter by issuing a charter certificate indicating the establishment of the local chapter. The chapter shall acquire legal personality only for purposes of filing a petition for certification election from the date it was issued a charter certificate. The chapter shall be entitled to all other rights and privileges of a legitimate labor organization only upon the submission of the following documents in addition to its charter certificate: 1.
The names of the chapter’s officers, their addresses, and the principal office of the chapter; and
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2.
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. (this is only based on RA 9481) Requirements for creation of a federations and national unions: 1.
A statement indicating the name of t he applicant labor union, its principal address, the name of its officers and their respe ctive addresses;
2.
The minutes of the organizational meeting(s) and the list of employees who participated in the said meeting(s);
3.
The annual financial reports if the applicant union has been in existence for one or more years, unless it has not collected any amount from the members, in which case a stat ement to this effect shall be included in the application;
4.
The applicant union's constitution and by-laws, minutes of its adoption or ratification, and the list of the members who participated in it. The list of ratifying members shall be dispensed with where the constitution and by-laws was ratified or adopted during the organizational meeting(s). In such a case, the factual circumstances of the ratifi cation shall be recorded in the minutes of the organizational meeting(s);
5.
The resolution of affiliation of at least ten (10) legitimate labor organizations, whether independent unions or chartered locals, each of which must be a duly certified or recognized bargaining agent in the establishment where it seeks to operate; and
6.
The name and addresses of the companies where the affiliate s operate and the list of all the members in each company involved.
Labor organizations operating within an identified industry may also apply for registration as a federation or national union within the specified industry by submitting to the Bureau the same set of documents. Are federations and national union the same as an independent union? Are they both legitimate labor organizations? No. Yes, provided that they are registered. JMM: The federation national union undergoes the same rigid process of registration similar to an independent union. How to create a local chapter? Read article 234-A There is a short list of requirements to create a local chapter? Why is that? Because the local chapter derives its legal personality from the federation or national union which already undergo a rigid process. Does the law encourage the creation of local/chapter to the process of chartering? Yes Why? The law makes it easier to make local/chapter to the process of chartering in order to encourage organizations to affiliate themselves with national federations in order for them to increase their bargaining power. Is federation the same as trade union center? No What is a trade union center? It is a larger organization. It can c onsist federations and national unions. Can a trade union center register as a le gitimate labor organization? Yes Can a trade union center by itself create a local or chapter to the process of chartering? No. it is not enumerated in the law. The law only provides federation or national union. In a federation or national union creating a local or chapter, when does this local or chapter acquire legal personality? Upon issuance of the charter certificate
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For what purpose? For purposes of filing a petition for certification election only. When does the chapter entitled to all the rights of a legitimate labor organization? Only upon submission of the ff. documents: a.) the names of the chapter’s officers, their addresses, and the principal office of the chapter; and b.) the chapter’s constitution and by-laws: Provided that where the chapter’s constitution and by-laws are the same as the federation or the national union, this fact shall be indicated accordingly. Does a legitimate labor organization have the right to file petition for certification election? Yes. But in order to exercise such right there must be …. When does an independent union acquire legal personality to file petition certification election? When they are issued certificate of registration. (different from local or chapter which is upon issuance of charter certificate) Which one is a long process, certification election or voluntary recognition? Certification election JMM: there’s no voluntary recognition in the LC but it is found in the IRR What are the requirements for voluntary recognition? Sec 2 Book V rule VII (Please read to answer the succeeding questions) (In letter a.) Joint statement of whom? By the employer and labor organization (In letter c) Are u telling us that in voluntary recognition the support is not only the members of union but all employees? Yes (in letter d) Can there be voluntary recognition if there are 2 or more legitimate labor union? No Is certification election defined in IRR? Yes Certification election – refers to the process determining through secret ballot the sole and exclusive representative of the employees in a bargaining unit for purposes of c ollective bargaining/negotiation ordered by DOLE….(IRR) What is definition of bargaining unit? Bargaining unit – refers to group of employees sharing mutual interest w/in an 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 w/in such employer unit (IRR) JMM: USC’s academic personnel share the same interest and also the non-academic personnel and they can form a separate bargaining unit. Is a certification election a litigation? No. So what is it? Process of electing who shall be exclusive bargaining agent of the establishment? Does it entail an adversarial proceeding? No. SC said it is mere investigation of a non-adversarial fact finding character to ascertain the desire of employees on the matter of representation. JMM: Take note however that any decision rendered in a certification election especially on the coverage of employees in the bargaining unit is an exercise of quasi-judicial power and constitute res judicata ( gi.balik2 ni niya. Lalabas sa MCQ)
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TOPIC 13: RIGHTS OF LEGITIMATE LABOR ORGANIZATION RIGHTS IN GENERAL (ART. 242, AS AMENDED) RIGHTS IN GENERAL: 1) Autonomy and governance of its affairs, particularly: a) to draw up their constitution; b) freely elect their representatives; c) to organize their activiti es and formulate programs; d) dissolve or suspend the organization; 2) Right to its funds or property; 3) Right to protection from unfair labor practices.
UNDER THE LABOR CODE: Article 242. Rights of legitimate labor organizations. A legitimate labor organization shall have the right: (a) To act as the representative of its members for the purpose of collective bargaining; (b) To be certified as the exclusive representative of all the employees in an appropriate collective bargaining unit for purposes of collective bargaining; (c) To be furnished by the employer, upon written request, with his annual audited financial statements, including the balance sheet and the profit and loss statement, within thirty (30) calendar days from the date of receipt of the request, after the union has been duly recognized by the employer or certified as the sole and exclusive bargaining representative of the employees in the bargaining unit, or within sixty (60) calendar days before the expiration of the existing collective bargaining agreement, or during the collective bargaining negotiation. (d) To own property, real or personal, for the use and benefit of the labor organization and its members; (e) To sue and be sued i n its registered name; and (f) To undertake all other activities designed to benefit the organization and its members, including cooperative, housing welfare and other projects not contrary to law. Notwithstanding any provision of a general or special law to the contrary, the income, and the properties of legitimate labor organizations, including grants, endowments, gifts, donations and contributions they may receive from fraternal and similar organizations, local or foreign, which are actually, directly and exclusively used for their lawful purposes, shall be free from taxes, duties, and other assessments. The exemptions provided herein may be withdrawn only by a special law expressly repealing this provision. (As amended by RA 6715)
This presupposes that the labor organization has been duly registered.
To act as representative of its members for the purpose of collective bargaining -
The legal relation that is established is that of principal-agent. Principal: Members, Agent: the organization.
-
Chartered Local: Principal, Federation: Agent
-
Bargaining Unit- may be comprised of members or non-members of the union
-
For the purposes of the CBA, the CBA must redound not only for the benefit of members of the union but also for the whole bargaining unit.
To be certified as the exclusive representative of all the employees in an appropriate bargaining unit for purposes of collective bargaining -
The organization must either be recognized or certified as the exclusive bargaining agent
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EXCLUSIVE BARGAINING AGENT EXCLUSIVE BARGAINING REPRESENTATIVE - refers to a legitimate labor union duly recognized or certified as the sole and exclusive bargaining representative or agent of all the employees in a bargaining unit.
PURPOSE OF AN EXCLUSIVE BARGAINING AGENT Under Art 242 of the Labor Code: (a) To act as the representative of its members for the purpose of collect ive bargaining;
CERTIFICATION PROCESS: CERTIFICATION ELECTION AND VOLUNTARY RECOGNITION Article 256. Representation issue in organized establishments. In organized establishments, when a verified petition questioning the majority status of the incumbent bargaining agent is filed before the Department of Labor and Employment within the sixty-day period before the expiration of the collective bargaining a greement, the Med-Arbiter shall automatically order an election by secret ballot when the verified petition is supported by the written consent of at least twenty-five percent (25%) of all the employees in the bargaining unit to ascertain the will of the employees in the appropriate bargaining unit. To have a valid election, at least a majority of all eligible voters in the unit must have cast their votes. The labor union receiving the majority of the valid votes cast shall be certified as the exclusive bargaining agent of all the workers in the unit. When an election which p rovides for three or more choices results in no choice receiving a majority of the valid votes cast, a run -off election shall be conducted between the labor unions receiving the two highest number of votes: Provided, that the total number of votes for all contending unions is at least fifty percent (50%) of the number of votes cast. At the expiration of the freedom period, the employer shall continue to recognize the majority status of the incumbent bargaining agent where no petition for certification election is filed. (As amended by Section 23, Republic Act No. 6715, March 21, 1989) Article 257. Petitions in unorganized establishments. In any establishment where there is no certified bargaining agent, a certification election shall automatically be conducted by the Med-Arbiter upon the filing of a petition by a legitimate labor organization. (As amended by Section 24, Republic Act No. 6715, March 21, 1989) Article 258. When an employer may file petition. When requested to bargain collectively, an employer may petition the Bureau for an election. If there is no existing certified collective bargaining agreement in the unit, the Bureau shall, after hearing, order a certification election. All certification cases shall be decided within twenty (20) working days. The Bureau shall conduct a certification election within twenty (20) days in accordance with the rules and regulations prescribed by the Secretary of Labor.
RULES IN THE CONDUCT OF CERTIFICATION ELECTION (UNDER DO 40-03) RULE IX CONDUCT OF CERTIFICATION ELECTION Section 1. Raffle of the case. - Within twenty-four (24) hours from receipt of the notice of entry of final judgment granting the conduct of a certification election, the Regional Director shall cause the raffle of the case to an Election Officer who shall have control of the pre election conference and election proceedings. Section 2. Pre-election conference. - Within twenty-four (24) hours from receipt of the assignment for the conduct of a certification election, the Election Officer shall cause the issuance of notice of pre-election conference upon the contending unions and the employer, which shall be scheduled within ten (10) days from receipt of the assignment. The employer shall be required to submit the certified list of employees in the bargaining unit, or where necessary, the payrolls covering the numbers of the bargaining unit at the time of the filing of the petition. (as amended by DO. 40-F-03) Section 3. Waiver of right to be heard. - Failure of any party to appear during the pre-election conference despite notice shall be considered as a waiver of its right to be present and to question or object to any of the agreements reached in said pre-election conference. However, this shall deprive the non-appearing party the right to be furnished notices of and to attend subsequent preelection conferences. (as amended by DO. 40-F-03)
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Section 4. Minutes of pre-election conference. - The Election Officer shall keep the minutes of matters raised and agreed upon during the pre-election conference. The parties shall acknowledge the completeness and correctness of the entries in the minutes by affixing their signatures thereon. Where any of the parties refuse to sign the minutes, the Election Officer shall note such fact in the minutes, including the reason for refusal to sign the same. In all cases, the parties shall be furnished a copy of the minutes. The pre-election conference shall be completed within thirty (30) days from the date of the first hearing. Section 5. Qualification of voters; inclusion-exclusion. - All employees who are members of the appropriate bargaining unit sought to be represented by the petitioner at the time of the issuance of the order granting the conduct of a certification election shall be eligible to vote. An employee who has been dismissed from work but has contested the legality of the dismissal in a forum of appropriate jurisdiction at the time of the issuance of the order for the conduct of a certification election shall be considered a qualified voter, unless his/her dismissal was declared valid in a final judgment at the time of the conduct of the certification election. In case of disagreement over the voters' list or over the eligibility of voters, all contested voters shall be allowed to vote. But their votes shall be segregated and sealed in individual envelopes in accordance with Sections 10 and 11 of this Rule. Section 6. Posting of Notices. - The Election Officer shall cause the posting of notice of election at least ten (10) days before the actual date of the election in two (2) most conspicuous places in the company premises. The notic e shall contain: (a) the date and time of the election; (b) names of all contending unions; (c) the description of the bargaining unit and the list of eligible and challenged voters. The posting of the notice of electi on, the information required to be included therein a nd the duration of posting cannot be waived by the contending unions or the employer. Section 7. Secrecy and sanctity of the ballot. - To ensure secrecy of the ballot, the Election Officer, together with the a uthorized representatives of the contending unions and the employer, shall before the start of the actual voting, inspect the polling place, the ballot boxes and the polling booths. Section 8. Preparation of ballots. - The Election Officer shall prepare the ballots in English and Filipino or the loc al dialect. The number of ballots should correspond to the number of voters in the bargaining unit plus a reasonable number of extra ballots fo r contingencies. All ballots shall be signed at the back by the Election Officer and an aut horized representative of each of t he contending unions. A party who refuses or fails to sign the ballots waives his right to do so and the Election Officer shall e nter the fact of such refusal and the reason therefor in the records of the case. (as amended by DO. 40-F-03) Section 9. Marking of votes. - The voter must put a cross ( x ) or check ( ü) mark in the square opposite the name of the union of his choice or "No Union" if he/she does not want to be represented by any union. If a ballot is torn, defaced or left unfilled in such a manner as to create doubt or confusion or to identify the voter, it s hall be considered spoiled. If the voter inadvertently spoils a ballot, he/she shall return it to the Election Officer who shall destroy it and give him/her another ballot. Section 10. Procedure in the challenge of votes. – The ballot of the voter who has been properly challenged during the pre-election conferences, shall place the ballot in an e nvelope which shall be sealed by the Election Officer in the presence of the voter and the representatives of the contending unions. The Election Offi cer shall indicate on the envelope the voter's name, the union or employer challenging the voter, and the ground for the challenge. The sealed envelope shall then be signe d by the Election Officer and the representatives of the contending unions. The Election Offi cer shall note all challenges i n the minutes of the electio n and shall be responsible for consolidating all envelopes containing the challenged votes. The envelopes shall be opened and the question of eligibility shall be passed upon by the mediator-arbiter only if the number of segregated voters will materially alter the results of the election. Section 11. On-the-spot questions. - The Election Officer shall rule on any question relating to and raised during the conduct of the election. In no case, however, shall the election offic er rule on any of the grounds for challenge specified i n the immediately preceding section. Section 12 Protest; when perfected. - Any party-in-interest may file a protest based on the conduct or mechanics of the election. Such protests shall be recorded in the minutes of the election proceedings. Protests not so raised are deemed waived. The protesting party must formalize its protest with the Med-Arbiter, with specific grounds, arguments and evidence, within five ( 5) days after the close of the election proceedings. If not recorded in the minutes and formalized within the prescribed period, the protest shall be deemed dropped. Section 13. Canvassing of votes. - The votes shall be counted and tabulated by the Election Officer in the presence of the representativ es of the contending unions. Upon completion of the canvass, the Election Officer shall give each representative a copy of the minutes of the election proceedings and results of the election. The ballots and the tally sheets shall be sealed in an envelope and signed by the Election Officer and the representatives of the contending unions and transmitted to the Med -Arbiter, together with the minutes and
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results of the election, within twenty-four (24) hours from the completion of t he canvass. Where the election is co nducted in more than one region, consolidation of results shall be made within fifteen (15) days from the conduct thereof. Section 14. Conduct of election and canvass of votes. - The election precincts shall open and close on the date and time agreed upon during the pre-election conference. The opening and canvass of votes shall proceed immediately a fter the precincts have closed. Failure of the representative/s of the contending unions to appear during the election proceedings and canvass of votes shall be co nsidered a waiver of the right to be present and to question the conduct thereof. Section 15. Certification of Collective Bargaining Agent. - The union which obtained a majority of the valid votes cast shall be certified as the sole and exclusive bargaining agent of all the employees in the appropriate bargaining unit within five (5) days from the day of the election, provided no protest is recorded in the minutes of the election. Section 16. Failure of election. - Where the number of votes cast in a certification or consent election is less than the majority of the number of eligible voters and there are no material challenged votes, the Election Officer shall declare a failure of election in the minutes of the election proceedings. Section 17. Effect of failure of election. - A failure of election shall not bar the filing of a motion for the immediate holding of another certification or consent election within six (6) months from date of declaration of failure of election. Section 18. Action on the motion. - Within twenty-four (24) hours from receipt of the motion, the Election Officer shall immediately schedule the conduct of another certification or consent election within fifteen (15) days from receipt of the motion and cause the posting of the notice of certification election at least ten (10) days prior to the scheduled date of election in two (2) most conspicuous places in the establishment. The same guidelines and list of voters shall be used in the election. Section 19. Proclamation and certification of the result of the election. - Within twenty-four (24) hours from final canvass of votes, there being a valid election, the Election Officer shall transmit the records of the case to the Med-Arbiter who shall, within the same period from receipt of the minutes and results of election, issue an order proclaiming the results of the election and certifying the union which obtained a majority of the valid vo tes cast as the sole and exclusive bargaining agent in the subject bargaining unit, unde r any of the following conditions: (a) no protest was filed or, even if one was filed, the same was not perfected within the five-day period for perfection of the protest; (b) no challenge or eligibility issue was raised or, even if one was raised, the resolution of the same will not materially change the results of the elections. The winning union shall have the rights, privileges and obligations of a duly certified collective bargaining agent from the time the certification is issued. Where majority of the valid votes c ast results in "No Union" obtaining the majority, t he Med-Arbiter shall declare such fact in the order.
VOLUNTARY RECOGNITION VOLUNTARY RECOGNITION – refers to the process by which a legitimate labor union is recognized by the employer as the exclusive bargaining representative or agent in a bargaining unit. BOOK V, RULE VII VOLUNTARY RECOGNITION SECTION 1. When and Where to File . — In unorganized establishments with only one legitimate labor organization, the employer may voluntarily recognize the representation status of such a union. Within thirty (30) days from such recognition, the employer and union shall submit a notice of voluntary recognition with the Regional Office which issued the recognized labor union's certificate of registration or certificate of creation of a chartered local. Section 2. Requirements for voluntary recognition. – the notice of voluntary recognition shall be accompanied by the original and two (2) duplicate copies of the following documents: a. A joint statement under oath of voluntary recognition attesting to the fact of voluntary recognition; b. Certificate of posting of the joint statement of voluntary recognition for (15) consecutive days in at least (2) conspicuous places in the establishment or bargaining unit where the union seeks to operate; c. The approximate number of employees in the bargaining unit, accompanied by the names of those who support the voluntary recognition comprising at least a majority of the members of the bargaining unit; and d. A statement that the labor union is the only legitimate labor organization within the bargaining unit.
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All accompanying documents of the notice for voluntary recognition shall be certified u nder oath by the employer representative and president of the recognized labor unions IRR, Book V, Rule VII, Sec 2 - joint statement of voluntary recognition between the ER and the LLO accompanied by at least majority of the members in the bargaining unit. Requirements: (in an unorganized establishment) 1. A joint statement under oath of voluntary recognition attesting to the fact of voluntary recognition; 2. Certificate of posting of the joint statement of voluntary recognition for (15) consecutive days in at least (2) conspicuous places in the establishment or bargaining unit where the union seeks to operate; 3. The approximate number of employees in the bargaining unit, accompanied by the names of those who support the voluntary recognition comprising at least a majority of the members of the bargaining unit; and 4. A statement that the labor union is the only legiti mate labor organization within the bargaining unit. Note: Certified under oath by the employer representative and president of the recognized labor union.
The requirements for voluntary recognition are more stringent. It is as if you underwent certification election process but even worse because certification election, you only need majority of the valid votes cast. However, in voluntary recognition you need the majority of the members of the bargaining unit.
Date of Effectivity – time of recording of voluntary recognition. Effects of Registration – 1. Enjoyment of the rights, privileges and obligations of an existing bargaining agent of all the employees in the bargaining unit. 2. Bar the filing of a petition for a certification election by any labor organization for a period of (1) year from the date of entry of voluntary recognition. Note: Direct Certification is no longer allowed as the will of the majority is frustrated.
CERTIFICATION ELECTION CERTIFICATION ELECTION – refers to the process of determining through secret ballot the sole and exclusive representative of the employees in a bargaining unit for purposes of collective bargaining/negotiation ordered by DOLE.
One must distinguish between unorganized and organized establishment
The certification election is NOT adversarial. It is merely a fact-finding investigation and non-adversarial proceeding to ascertain the desire of the employees on matters of their representation.
PETITION
Who may file
There can be many legitimate labor organizations in an establishment or bargaining unit.
Unorganized Establishment- with no certified bargaining agent or certified bargaining agreement 1)
Any legitimate labor organization
2)
When requested to bargain collect ively, an employer
Organized Establishment- with certified or recognizing bargaining agent or an existing certified bargaining agreement
1)
Any legitimate labor organization (chartered local; national union or federation provided it has issued the charter certificate)
2)When requested to bargain collectively, an employer Where to Regional Office of BLR which issued the file petitioning union’s certificate of registration/certificate of creation of c hartered
Regional Office of BLR which issued the petitioning union’s certificate of registration/certificate of creation of chartered local.
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local. When to file Anytime Note:Where there is no certified bargaining agent, it shall be automatically conducted upon the filing of a petition by a legitimate labor organization.
During the freedom period- 60 days prior to expiration of life of CBA 1)
When a fact of voluntary recognition has been entered or a valid certification, consent or run-off election has been conducted within the bargaining unit within (1) year prior to the filing of the petition for certification election;
Note: Where an appeal has been filed from the order of the Med-Arbiter certifying the results of the election, the running of the 1-year period shall be suspended until the decision on the appeal has become final and executory.
Hearing Officer
Med-Arbiter
Forms and Section 4, Rule VIII, is hereby amended to read Contents of as: Petition SECTION 4. Form and Contents of Petition. — The petition shall be in writing, verifie d under oath by the president of petitioning labor organization. Where a federation or national union FILES A PETITION IN BEHALF OF ITS LOCAL OR AFFILIATE, THE PETITION shall BE verified under oath by the president or duly authorized representative OF THE FEDERATION OR NATIONAL UNION. IN CASE THE EMPLOYER FILES THE PETITION, THE OWNER, PRESIDENT OR ANY CORPORATE OFFICER, WHO IS AUTHORIZED BY THE BOARD OF DIRECTORS, SHALL VERIFY THE PETITION. The petition shall contain the following: 1)
2)
When the duly certified union has commenced and sustained negotiations in good faith with the employer in accordance with Article 250 of the LC within the 1-year period referred in the immediately preceding paragraph;
3)
When a bargaining deadlock to which an incumbent or certified bargaining agent is a party, had been submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout;
4)
When the CBA between the ER and a duly recognized or certified bargaining agent has been registered in accordance with Article 231 of the LC. Where such CBA is registered, the petition may be filed only within (60) days prior to its expiry.
Med-Arbiter
Section 4, Rule VIII, is hereby amended to read as: SECTION 4. Form and Contents of Petition. — The petition shall be in writing, verified under oath by the president of petitioning labor organization. Where a federation or national union FILES A PETITION IN BEHALF OF ITS LOCAL OR AFFILIATE, THE PETITION shall BE verified under oath by the president or duly authorized representative O F THE FEDERATION OR NATIONAL UNION. IN CASE THE EMPLOYER FILES THE PETITION, THE OWNER, PRESIDENT OR ANY CORPORATE OFFICER, WHO IS AUTHORIZED BY THE BOARD OF DIRECTORS, SHALL VERIFY THE PETITION. The petition shall contain the following: 1)
The name of petitioner, its address, and affiliation if appropriate, the date and number of its certificate of registration. If the petition is filed by a federation or national union, the national president or his/her duly authorized representative shall CERTIFY UNDER OATH AS TO the existence 2) of its local/chapter in the establishment 3) and ATTACHING THERETO THE CHARTER 4) CERTIFICATE OR A CERTIFIED TRUE COPY
The name of petitioner, its address, and affiliation i f appropriate, the date and number of its certificate of registration. If the petition is filed by a federation or national union, the national president or his/her duly authorized representative shall CERTIFY UNDER OATH AS TO the existence of its local/chapter in t he establishment and ATTACHING THERETO THE CHARTER CERTIFICATE OR A CERTIFIED TRUE COPY THEREOF. If t he petition is filed by a local/chapter IT SHALL ATTACH; The name, address, and nature of employer’s business; The description of the bargaining unit; The approximate number of employees in the bargaining
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THEREOF. If the petition is filed by a local/chapter IT SHALL ATTACH; 2)
The name, address, and nature of employer’s business;
3)
The description of the bargaining unit;
4)
The approximate number of employees in the bargaining unit;
5)
The names and addresses of other legitimate labor unions in the bargaining unit;
6)
5)
The names and addresses of other legitimate labor unions in the bargaining unit;
6)
A statement indicating any of the following: a.
that the bargaining unit is unorganized or that there is no registered collective b argaining agreement covering the employees in the bargaining unit;
b.
if there exists a duly registered collective bargaining agreement, that the petition is filed within the 60day freedom period of such agreement; or
c.
if another union had been previously recognized voluntarily or certified in a valid certification, consent or run-off election, that the petition is filed outside the 1-year period from entry of voluntary recognition or conduct of certification or run-off election and no appeal pending thereon.
A statement indicating any of the following: a.
that the bargaining unit is unorganized or that there is no registered collective bargaining agreement covering the employees in the bargaining unit;
b.
if there exists a duly registered collective bargaining agreement, that the petition is filed within the 60-day freedom period of such agreement; or
c.
7)
unit;
7)
The signature of at least (25%) of all employees in the appropriate bargaining unit;
8)
Other relevant facts.
1)
Raffle of the case to determine the Med-Arbiter to be assigned to the case;
if another union had been previously recognized voluntarily or certified in a valid certification, consent or run-off election, that the petition is filed outside the 1-year period from entry of voluntary recognition or conduct of certification or run-off election and no appeal pending thereon.
Other relevant facts.
N.B. Petition must me verified under oath by the president of the petitioning labor organization or its duly a uthorized representative. Procedure
1)
Raffle of the case to determine the MedArbiter to be assigned to the case;
2)
Within (3) days from receipt of petition, the 2) Within (3) days from receipt of petition, the Med-Arbiter Med-Arbiter shall cause the service of shall cause the service of notice o f 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 legit imate labor union other than the incumbent bargaining agent shall be filed at any time
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prior to the decision of the Med - Arbiter . Preliminary Determination of: Conference and Hearing 1) The bargaining unit to be represented;scope that the bargaining unit which to represent
Hearings
Determination of: 1)
The bargaining unit to be represented;
2)
Contending labor unions;
2)
Contending labor unions;
3)possibility of consent election
3)
Such other matters as may be relevant for the final disposition of the case.
3)
Existence of any of the bars to certification election;
4)
Such other matters as may be relevant for the final disposition of the case.
Not exceed (15) days from the date of the scheduled preliminary conference. Extensions of time shall not be entertained.
Not exceed (15) days from the date of the scheduled preliminary conference. Extensions of time shall not be entertained.
Note: Failure to appear shall be deemed a waiver of its right to be heard.
Note: Failure to appear shall be deemed a waiver of its right to be heard.
Order/Decis Within (10) days from the date of the last ion hearing.
Contents of 1) Order Granting the 2) Petition
The name of the employer or establishment; The description of the bargaining unit;
Within (10) days from the date of the last hearing. Note: No order or decision shall be issued during the freedom period. 1)
The name of the employer or establishment;
2)
The description of the bargaining unit;
3)
A statement that none of the grounds for dismissal exists;
4)
the names of THE contending labor unions which shall
3)
A statement that none of the grounds for dismissal exists;
4)
The names of the contending labor unions;
5)
A directive upon the ER and the contending union(s) to submit within (10) days from receipt of order, the certified list of employees in the bargaining unit, or 5) where necessary, the payrolls covering the members of the bargaining unit for the last (3) months prior to the issuance of t he order.
appear IN THE FOLLOWING ORDER: THE petitioner unions in the order OF THE DATE OF FILING OF THEIR RESPECTIVE PETITIONS; THE forced intervenor; and "no union"; TO AFFORD AN INDIVIDUAL EMPLOYEE-VOTER AN INFORMED CHOICE WHERE A LOCAL/CHAPTER IS ONE OF THE CONTENDING UNIONS, A DIRECTIVE TO AN UNREGISTERED LOCAL/CHAPTER OR A FEDERATION/NATIONAL UNION REPRESENTING AN UNREGISTERED LOCAL/CHAPTER TO PERSONALLY SUBMIT TO THE ELECTION OFFICER ITS CERTIFICATE OF CREATION AT LEAST FIVE WORKING DAYS BEFORE THE ACTUAL CONDUCT OF THE CERTIFICATION ELECTION. NONSUBMISSION OF THIS REQUIREMENT AS CERTIFIED BY THE ELECTION OFFICER SHALL DISQUALIFY THE LOCAL/CHAPTER FROM PARTICIPATING IN THE CERTIFICATION ELECTION; AND 6)
A directive upon the ER and the c ontending union(s) to submit within (10) days from receipt of order, the certified list of employees in the bargaining unit, or where necessary, the payrolls covering the members of the bargaining unit for the last (3) months prior to the
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issuance of the order. Grounds for 1) Denial of Petition 2)
The petitioner is not listed in the Department’s registry of legitimate labor unions; The petitioner’s legal personality has been revoked or cancelled with finality in accordance with Rule XIV of the Rules.
1)
The petitioner is not listed in the Department ’s registry of legitimate labor unions;
2)
The petitioner’s legal personality has been revoked or cancelled with finality in accordance with Rule XIV of the Rules;
Note: If petition for cancellation is still pending, the petition for certification election cannot be denied or suspended on such ground. Until such time that the registration has been cancelled, the labor union enjoys legal personality. 3)failure of a local chapter o r national union/ federation to submit a duly issued charter certificate upon filing o f the petition for certification election 4)
The petition was filed before or after the freedom period of a duly registered CBA; provided that the sixty-day period based on the original CBA shall not be affected by any amendment, extension or renewal of the CBACONTRACT BAR RULE.
Note: The CBA has to be regi stered in accordance with Art.231 of the LC. 5)
Filing of petition within (1) year from the date of recording of the voluntary recognition, or within the same period from a valid certification, consent or run-off election where no appeal on the results of the certification, consent, or run-off election is pending – CERTIFICATION YEAR RULE.
- once an LLO is certified it is its duty to bargain collectively if we are to allow a petition within one year it will disrupt the bargaining union in performing its duty 5)
Where a duly certified union has commenced and sustained negotiations with the ER in accordance with Art.250 of the LC within the 1-year period referred to in the preceding paragraph ( NEGOTIATION BAR RULE) or there exists a bargaining deadlock which had been submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout to which an incumbent or certified bargaining agent is a party (BARGAINING DEADLOCK RULE);
- certification of election will just aggravate the situation; it is NOT conducive to industrial stability ; if petition is filed AFTER the bargaining deadlock 6)
Failure to submit the (25%) support requirement for the filing of the petition for certification election.
- there is already an incumbent bargaining union who is supported by the majority of the employees in the bargaining unit 7)non appearance of the petitioner for 2 consecutive scheduled conferences before the mediator-arbiter
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despite due notice; and 8)absence of employer- employee relationship between all the members of the petitioning union and the establishment where the proposed bargaining unit is sought to be represented CONDUCT OF ELECTION
Unorganized Organization
Hearing Officer Procedure
Election Officer
1)
Within 24 hours from receipt of the notice of entry of final judgment, the case shall be raffled to an Election Officer who shall have control of the pre-election conference and election proceedings.
3)
Within 24 hours from receipt of the assignment, the Election Officer shall cause the issuance of notice of pre-election conference upon the contending unions and the employer, which shall be scheduled within 10 days from receipt of assignment.
Within 24 hours from receipt of the assignment, the Election Officer shall cause the issuance of notice of preelection conference upon the contending unions and the employer, which shall be scheduled within 10 calendar days from receipt of assignment. The employer shall be required to submit the certified list of employees in the bargaining unit or where necessary, the payrolls covering the members of the bargaining unit at the time of the filing of the petition
Set Mechanics and Determination of:
Set Mechanics and Determination of:
Date, time and place of the election, which 1) shall not be later than 45 days from the date of first pre-election conference, and shall be on a regular working day and within the employer's premises, unless circumstances require otherwise; 1) List of eligible and challenged voters;
Date, time and place of the election, which shall not be later than 45 days from the date of first pre-election conference, and shall be on a reg ular working day and within the employer's premises, unless c ircumstances require otherwise;
3)
Number and location of polling places or booths and the number of ballots to be prepared with appropriate translations, if necessary;
2)
Number and location of polling places or booths and the number of ballots to be prepared with appropriate translations, if necessary;
3)
4)
Name of watchers or representatives and their alternatives for each of the parties during the election;
Name of watchers or representatives and their alternatives for each of the parties during the election;
4)
Mechanics and guidelines of election.
1)
2)
Within 24 hours from receipt of the notice of entry of final judgment, the case shall be raffled to an Election Officer who shall have control of the pre-election conference and election proceedings.
Election Officer
1)
2)
Pre-election Conference
Organized Organization
List of eligible and challenged voters; (inclusion/ exclusion proceedings)
Note: Failure to appear shall be considered as a waiver of its right to be present and to question or object to any of the Note: Failure to appear shall be considered as a agreements. However, it shall not be deprived of the right to be waiver to be present and to question or object to furnished notices of subsequent pre-election conferences and to any of the agreements. However, it shall not be attend the same. deprived of the right to be furnished notices of Note: The role of the ER is a mere bystander while the subsequent pre-election conferences and to representative of the DOLE is a mere observer in Certification attend the same. Election. They are not parties. Only the employees are parties Note: The role of the ER is a mere bystander themselves. while the representative of the DOLE is a mere observer in Certification Election. They are not parties. Only the employees are parties 5)
Mechanics and guidelines of election.
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themselves. Failure of It shall not bar the filing of a motion for the It shall not bar the filing of a motion for the immediate holding Election immediate holding of another certification or of another certification or consent election within (6) months consent election within (6) months from date of from date of declaration of failure of election. declaration of failure of election.
Failure of election- - it is where the number of votes cast in a certification or consent election is less than the majority of the number of eligible voters and there are no material challenged votes. Proclamatio The Med-Arbiter from receipt of the minutes and The Med-Arbiter from receipt of the minutes and results of n and results of election, shall issue an order election, shall issue an order proclaiming the results of the Certification proclaiming the results of the elections and elections and certifying the union which obtained a majority of of Result certifying the union which obtained a majority o f the valid votes cast as the sole and exclusive bargaining unit the valid votes cast as the sole and exclusive under any of the following conditions: bargaining unit under any of the following 3) No protest was filed or even if one was filed, same was conditions: not perfected within the 5-day period for perfection of 1) No protest was filed or even if one was the protest; filed, same was not perfected within the 54) No challenge or eli gibility issue was raised or, even if one day period for perfection of t he protest; was raised, the resolution of the same will not materially 2) No challenge or eligibility issue was raised change the results of the election. or, even if one was raised, the resolution of Note: Where majority of the valid votes cast results in “No the same will not materially change the Union” obtaining the majority, the Med-Arbiter shall declare results of the election. such fact in the order. Note: Where majority of the valid votes cast results in “No Union” obtaining the majority, the Med-Arbiter shall declare such fact in the order. Appeal or Any party to an election may appeal the results of Any party to an election may appeal the results of the election as Remedies the election as determined by the Med-Arbiter determined by the Med-Arbiter directly to the SOLE on the directly to the SOLE on the ground that the rules ground that the rules and regulations or parts thereof for the and regulations or parts thereof for the conduct conduct of certification election have been violated. of certification election have been violated.
WHO MAY FILE FOR CERTIFICATION ELECTION (Sec 1, Rule VII of DO 40-F-03) RULE VIII Certification Election SECTION 1. Who may File. — Any legitimate la bor organization, INCLUDING A NATIONAL UNION OR FEDERATION THAT HAS ISSUED A CHARTER CERTIFICATE TO ITS LOCAL/CHAPTER OR THE LOCAL/CHAPTER ITSELF, may file a petition for certification election. A NATIONAL UNION OR FEDERATION FILING A PETITION IN BEHALF OF ITS LOCAL/CHAPTER SHALL NOT BE REQUIRED TO DISCLOSE THE NAMES OF THE LOCAL/CHAPTER'S OFFICERS AND MEMBERS, BUT SHALL ATTACH TO THE PETITION THE CHARTER CERTIFICATE IT ISSUED TO ITS LOCAL/CHAPTER. When requested to bargain collectively IN A BARGAINING UNIT WHERE NO REGISTERED COLLECTIVE BARGAINING AGREEMENT EXISTS, an employer may file a petition for certification election with the Regional Office. IN ALL CASES, WHETHER THE PETITION FOR CERTIFICATION ELECTION IS FILED BY AN EMPLOYER OR A LEGITIMATE LABOR ORGANIZATION, THE EMPLOYER SHALL NOT BE CONSIDERED A PARTY THERETO WITH A CONCOMITANT RIGHT TO OPPOSE A PETITION FOR CERTIFICATION ELECTION. THE EMPLOYER'S PARTICIPATION IN SUCH PROCEEDINGS SHALL BE LIMITED TO: (1) BEING NOTIFIED OR
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INFORMED OF PETITIONS OF SUCH NATURE; AND (2) SUBMITTING THE LIST OF EMPLOYEES DURING THE PRE-ELECTION CONFERENCE SHOULD THE MED-ARBITER ACT FAVORABLY ON THE PETITION. ANY EMPLOYEE HAS THE RIGHT TO INTERVENE FOR THE PROTECTION OF HIS INDIVIDUAL RIGHT. Summary on who may file: a.
Any Legitimate Labor Organization
b.
The employer when requested to bargain collectively by any LLO
c.
A national union or federation, who has ISSUED a charter certificate, in behalf of its local/chapter -
NU or F are not required to disclose the names of its officers and members of the local/chapter
It is NOT required for a national union to disclose the local/chapter’s officers and members (Sec 1, Rule VIII of DO-40-F-03) In the chartering or creation of a local/chapter under Article 234-A, the names of its members are NOT included. So as to encourage affiliation to national unions or federations.
Venue over petition for Certification Election -
Regional Office which issued the petitioning union’s certificate of registration/ certificate of creation of chartered local
Jurisdiction -
Med-Arbiter of DOLE/BLR
-
Med-Arbiter refers to an officer authorized to hear representation cases, inter/intra union disputes and other related disputes except cancellation of registration.
Federation -> charter certificate to local -> chartered local acquires legal personality for the purpose of certification election -> federation reports to the BLR Contents of a petition for certification election ( Book V, Rule VIII Section 4) a.
Name of petitioner, address and affiliation...
b.
Name and address of employer
c.
Description of bargaining unit (BU) -
Whether it is rank-and-file or supervisory
-
Time barred earners have different interests with field workers. There are some differences thus it is better if they are in different BUs. But it is also possible to have them in the same BU.
d.
Approximate number of employees in the BU
-
To have an idea on the number of voters in the bargaining unit
e.
Names and addresses of other legitimate labor unions in the BU
f.
Statement indicating any of the following:
1)
That the BU is unorganized or that there is no registered CBA... -to determine the conduct of certification election. To know who may or when to file petition for certification election
2)
If there exists a duly registered CBA, that the petition is filed within the 60-day freedom period of such agreement
3)
If another union has been previously recognized voluntarily or certified in a valid certification, consent or run-off election, that the petition is filed outside the 1-year period from entry of voluntary recognition or conduct of certification or run-off election and no appeal is pending thereon. o
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. Contract bar rule
g.
For organized, signature of at least 25% of all employees in the bargaining unit
h.
Other relevant facts
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Contents will tell you that it is not easy to file for certification election. Purpose of Certification Election -
to ascertain the will of the employees for collective bargaining
When may the petition be filed -
Any time.
Role of the ER in the CE -
Employer is a mere bystander. Article 258-A
-
The ER may participate ONLY in the following instances:
-
a.
The right to be furnished a copy of the petition
b.
Providing the list of employees in the unit for pre-election
Not the same with Innocent bystander which refers to picketing
Role of the DOLE -
Also a mere bystander. It merely facilitates the conduct of the election.
PROCEDURE 1.
The petition for certification election will be raffled by the Regional Director to theMed-Arbiter.
2.
The Med-Arbiter will serve a copy of the petition to the employer.
3.
A notice of the petition together with the notice of preliminary conference will be posted in at least 2 conspicuous places in the establishment. -
Without the posting, the election becomes irregular.
-
Conspicuous means noticeable and visible. You post it in a place where a lot of people can ea sily see it.
-
The purpose of the posting is in order to apprise the EEs in the establishment particularly the bargaining unit sought to be represented by the union that there is this union who wants to represent them for the purpose of collective bargaining.
-
A notice of preliminary conference is a notice which is sent 3 days from receipt of petition will be given to the ER and to the petitioner
-
The preliminary conference is to be conducted within 10 days from the receipt of the Med Arbiter of the petition
-
There are 2 conferences: a. Preliminary conference – this is called by the Med-Arbiter. The petitioning union and its representatives are expected to be present. The ER may also be present since a copy of the petition has been served but his presence is not mandatory (mere bystander).
- In the preliminary conference you determine the following: a.
The bargaining unit to be represented
b.
Contending labor unions
c.
Such other matters as may be relevant for the final disposition of the case b. Pre-election conference
4.
During the preliminary conference, the Med-Arbiter will determine whether the petition complied with the rules, both in form and substance.
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-
5.
Since it is an unorganized establishment, it is likely that there is no certified bargaining union so there is no impediment to the holding of the election.
After the preliminary conference, Med-arbiter will decide whether to grant or deny the petition. -
The Med-Arbiter will check whether any of th e 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.
The petitioner is not listed in the Department’s registry of legitimate labor unions or that its legal personality has been revoked or cancelled with finality. o
o
6.
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 c ase, the ER refused to submit a list, what a union did was to get a list from the SSS.
After issuing the order, the Med-Arbiter will transmit the records back to the RD and the RD will raffle the case to a so-called Election Officer. -
8.
Election officer will issue a notice of pre-election conference, a copy of which will be served to the petitioning union for the conduct of the pre-election conference. -
9.
The Election Officer is different from the Med-Arbiter. The Med-Arbiter is usually a lawyer while the Election Officer need not be a one.
Election Officer presides over the pre-election conference.
During the pre-election conference there is an inclusion-exclusion proceeding where it is determined who among those in the list will be included to participate in the election and who will be excluded. -
Ex. If managerial: excluded. If supervisor: excluded from union of rank-and-files. If there are members of the bargaining unit not included in the list then they should be included.
-
Those excluded may automatically be considered challenged voters whose names will be segregated from the list of qualified voters.
-
In the pre-election conference, the election officer will also check when the certification may be scheduled, the date, place and time of the conduct of the certification election, the number of polling precinct, in the polling precinct, the number of polling booths and the designation of the ballot box. In other words, the mechanics in the conduct of election will be defined during the pre-election conference.
-
The Election Officer does NOT have the power to rule on objections on the eligibility of some voters (whether an EE is qualified to vote) It is the Med-Arbiter who has the power to decide ultimately on who is qualified and who is disqualified from voting. The objections will just be received by the Election Officer and it will form part of the records for the MedArbiter to decide on the issue.
10. After everything has been set, the Election Officer will issue and require the posting of the notice of the conduct of the election. -
Such notice will be posted for 10 days in at least 2 conspicuous places i n the establishment.
-
The purpose of this is for the EEs to be informed that an election will be conducted.
-
If an EE sees in the list of qualified and challenged voters that he has been unfairly excluded, he has the right to bring the issue to the attention of the election officer who can make the necessary corrections. This is because every individual EE has the right to protect his right to self-organization.
-
Do not get the intervention of the management because they are supposed to keep their hands off in the conduct of election.
11. On the date of the election, there will be an inspection of the polling place to be done in the presence of the DOLE representative and in the presence of the ER’s representative.. -
The ballots are usually authenticated by the DOLE representative to prevent tampering of ballots or substitution.
12. Once the inspection is done, at the time provided in the notice, the voters will now be allowed to cast their votes. -
Atty. Marquez: In my experience, since the union is the organizer, they usually encourage their employees to vote early.
-
If you want to challenge a vote, you have to make the necessary objections before a voter will drop her vote not after . Because if it is after, it will be mixed with the other ballots so you will not know which ballot belongs to that voter. That
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vote will have to be segregated by the election officer in a separate envelope and he has to indicate there the reason for the challenge of the vote. -
Grounds to challenge a voter: 1. that there is no employer- employee relationship between the voter and the company 2. that the voter is not a member of the appropriated bargaining unit which petitioner seeks to represent
13. Once everybody has cast their vote or the time has ended, there will be canvassing of the votes. -
Example: USC Union and then the other choice is NO UNION. The EEs are allowed to choose. You simply write there a check or a cross mark. You do not need to sign or put your face there. So there is such thing as a spoiled ballot.
-
What is the Double Majority Rule? This means that to have a valid election, majority of the eligible voters must cast their vote. So if there are 100 eligible voters, then at least 50+1 must cast their vote to have a valid election. For the union that is trying to represent the employees, to be certified as the exclusive bargaining agent (to win the election), the law says that it must obtain the majority of the valid votes cast.
-
In determining on whether or not there is a valid election, you will include even spoiled ballots. However, in determining whether the union will be certified as the exclusive bargaining agent, you have to exclude the spoiled ballots because these are not valid votes cast.
-
WARNING: You have to watch out for the figures particularly on this topic (for a valid election, for the union to be the exclusive bargaining agent)
-
Where the number of votes cast in a certification or consent election is less than the majority of the number of eligible voters and there are no material challenged votes, the Election Officer shall declare a failure of election in the minutes of the election proceedings
-
A failure of election shall not bar the filing of a motion for the immediate holding of another certification or consent election within 6 months from date of declaration of failure of election
14. If there is a protest, it must be recorded in the minutes of the election. -
If you notice an irregularity in the conduct of the certification election or there is a violation of DO 40-03 as amended, you have to inform the election officer that you are registering your protest.
-
Ex. There was no posting of notice of election or an abrupt stoppage of the casting of votes like instead of 8-12, they cut it off until 10 therefore unduly depriving the other voters to cast their vote so that is an irregularity in the conduct of the election which will be the subject of the protest.
-
You have to perfect your protest within 5 days from the date of the election by way of a written protest , otherwise you are deemed to have waived your protest.
-
What is the purpose of a protest? o
o
If there is a protest and the result of the protest will materially affect the result of the election, the election officer will not announce the winner. He will endorse the case to the Med-Arbiter for the Med-Arbiter to rule on the protest instead of proclaiming the winner. If there is no protest, the election officer will now announce the winner in the certification election. And he will endorse that to the Med-Arbiter for the issuance of an order officially proclaiming the winner.
15. Results of the Election -
Do not confuse with Order of Election.
-
The Results of the Election as determined by the Med-Arbiter may be appealed to the SOLE. (Art. 259, LC)
-
Even if you appeal to the SOLE and the SOLE affirms the decision of the Med-Arbiter, in the absence of a restraining order, then the parties are now allowed to negotiate the collective bargaining agreement.
Once you have been certified, the next step is to exercise the right to negotiate a CBA. Under the law, only a certified bargaining union is allowed to exercise the right to collectively bargain. If you have not been certified it means that you did not win the elections and that you do not have the confidence of the majority of the workers, thus you cannot exercise the right to collective bargaining.
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The procedure in an ORGANIZED ESTABLISHMENT is more or less the same. The only difference is the ground for denial of the petition because there are more grounds to deny compared to the unorganized establishment. CONSENT ELECTION – refers to the process of determining t hrough secret ballot the sole and exclusive representative of the employees in an appropriate bargaining unit for purposes of collective bargaining or negotiation voluntarily agreed upon by the parties, with or without the intervention of the DOLE. 1)
In case the contending unions agree to a consent election, the Med-Arbiter shall not issue a formal order calling for the conduct of certification election, but shall enter the fact of the agreement in the minutes of the hearing of the preliminary conference signed by the parties and attested by the Med-Arbiter.
2)
It shall constitute a bar to the holding of a certification election for (1) year from the holding of such consent election.
RUN-OFF ELECTION – refers to an election between the labor unions receiving the (2) highest number of votes in a certification or consent election with (3) or more choices, where such certified or consent election results in none of the (3) or more choices receiving the majority of the valid votes cast; provided that the total number of votes for all contending unions is at least (50%) of the number of votes cast. Note: “NO UNION” shall not be a choice in the r un-off election.
PRINCIPLE OF PRECLUSION OR COLLATERAL ATTACK
Under the doctrine of conclusiveness of judgment, which is also known as "preclusion of issues" or "collateral estoppel," issues actually and directly resolved in a former suit cannot again be raised in any future case between the same parties involving a different cause of action.||| (Tan v. Court of Appeals, G.R. No. 142401, August 20, 2001)
INCLUSION-EXCLUSION PROCEEDINGS SECTION 5. Qualification of Voters ; Inclusion-Exclusion . — All employees who are members of the appropriate bargaining unit sought to be represented by the petitioner at the time of the issuance of the order granting the conduct of a certification election shall be eligible to vote. An employee who has been dismissed from work but has contested the legality of the dismissal in a forum of appropriate jurisdiction at the time of the issuance of the order for the conduct of a certification election shall be considered a qualified voter, unless his/her dismissal was declared valid in a final judgment at the time of the conduct of the certification election. In case of disagreement over the voters' list or over the eligib ility of voters, all contested voters shall b e allowed to vote. But their votes shall be segregated and sealed in individual envelopes in accordance with Sections 10 and 11 of this Rule.
CONTRACT BAR RULE The Contract Bar Rule is a rule that a valid and existing collective bargaining agreement is a bar to a petition for certification election. Hence an employer may successfully oppose a petition for certification election if it violates this Rule.
EXCEPTIONS TO THE CONTRACT BAR RULE However, there are a number of exceptions to this Rule, namely: (a) if the petition is made within 60 days before the expiration of the CBA, known as the "freedom period" (b) if the CBA is defective or inadequate in substance, as whei it d oes not fulfill the legal requirements of providing for a grievance machinery or voluntary arbitration; and (c) if it has not fulfilled the formal requirements for registration with the Bureau or the Regional Office of the DOLE, which requirements are held to be mandatory (Asso. Trade Union vs. Trajano, 162 SCRA University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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318) in any of these exceptional cases, the Contract Bar Rule will not apply and the employer would have no ground to contest the certification election.
OTHER RULES BARRING CERTIFICATION ELECTIONS. The Contract Bar Rule is not the only instance where petitions for certification election may be barred. There are other applicable rules whereby such petitions will not be entertained. To summarize, no certification election may be held in the following cases: (a) During the existence of a collective bargaining agreement, except within the freedom period (the Contract Bar Rule); (b) Within one year from the date of issuance of a final certification result (Bk. V, Sec. 3, OR); and (c) Where a bargaining deadlock to "which an incumbent or certified bargaining agent is a party has been submitted to conciliation or arbitration, or has become the subject of a valid notice of strike or lockout (Id.). This is known as the Deadlock Bar Rule. Its principal purpose is to ensure stability in the relationship of workers and management. (NACUSIP vs. ajano, 208 SCRA 18) Basic to the contract bar rule is the proposition that the delay of the right to select representatives can be justified only where stability is deemed paramount. Excepted from the contract bar rule are certain types of contracts which do not foster industrial stability, such as contracts where the identity of the representative is in doubt. Any stability derived fr om such contracts must be subordinated to the employees' freedom of choic e because it does not establish the type of industrial peace contemplated by law.||| (Firestone Tire & Rubber Employees Union v. Estrella, G.R. Nos. L-45513-14, January 06, 1978) The contract bar rule does not call for application where the renewed collective bargaining agreement was negotiated and concluded prematurely, i.e., without waiting for the statutory period of sixty days prior to its termination and the petition for certification election was filed within the period allowed b y law, i.e., fifteen days before the contract would have expired||| (General Textiles Allied Workers Ass'n v. Director of Bureau of Labor Relations, G.R. No. L-45719, July 31, 1978)
DEADLOCK BAR RULE The Deadlock Bar Rule simply provides that a petition for certification election can only be entertained if there is no pending bargaining deadlock submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout. The principal purpose is to ensure stability in the relationship of the workers and the management.||| (National Congress of Unions in the Sugar Industry of the Phil. v. Trajano, G.R. No. 67485, April 10, 1992)
CERTIFICATION YEAR RULE Section 3, Rule V of Department Order No. 9 , or commonly known as the 'Certification-Year Rule', which means that no certification election should be entertained within one (1) year from the time the Election Officer issued the Certification Order.||| (DHL-URFA-FFW v. Buklod ng Manggagawa ng DHL Phil. Corp., G.R. No. 152094, July 22, 2004)
VALID ELECTION AND DOUBLE MAJORITY RULE It is well-settled that under the so -called "double majority rule", for there to be a valid certification election, majority of the bargaining unit must have voted AND the winning union must have garnered majority of the valid votes cast.||| (NUWHRAIN-Manila Pavilion Hotel Chapter v. Secretary of Labor and Employment, G.R. No. 181531, July 31, 2009)
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FAILURE OF ELECTION RULE IX (Conduct of Certification Election) SECTION 17. Failure of Election . — Where the number of votes cast in a certification or consent election is less than the majority of the number of eligible voters and there are no material challenged votes, the Election Officer shall declare a failure of election in the minutes of the election proceedings. SECTION 18. Effect of Failure of Election . — A failure of election shall not bar the filing of a motion for the immediate holding of another certification or consent election within six (6) months from date of declaration of failure of election. Private respondent also alleged that the certification election was marred by massive fraud and irregularities and that out of 1,692 eligible voters, 913, representing 54% of the rank-and-file workers of private respondent, were not able to vote, resulting in a failure of election. (NATIONAL FEDERATION OF LABOR (NFL), Petitioner, vs. THE SECRETARY OF LABOR OF THE REPUBLIC OF THE PHILIPPINES AND HIJO PLANTATION INC. (HPI), Respondents.)
RUN-OFF ELECTIONS RULE X RUN-OFF ELECTIONS
SECTION 1. When Proper. — When an election which provides for three (3) or more choices results in none of the contending unions receiving a majority of the valid votes cast, and there are no objections or challenges which if sustained can materially alter the results, the Election Officer shall motu propio conduct a run-off election within ten (10) days from the close of the election proceedings between the labor unions receiving the two highest number of votes; provided, that the total number of votes for all contending unions is at least fifty (50%) percent of the number of votes cast. SEIDAC "No Union" shall not be a choice in the run-off election. Notice of run-off elections shall be posted by the Election Officer at least five (5) days before the actual date of run-off election.
SECTION 2. Qualification of Voters . — The same voters' list used in the certification election shall be used in the run-off election. The ballots in the runoff election shall provide as choices the unions receiving the highest and second highest number of the votes cast. The labor union receiving the greater number of valid votes cast shall be certified as the winner, subject to Section 20, Rule IX. A run-off election refers to an election between the labor unions receiving the two (2) highest number of votes in a certification or consent election with three (3) or more choices, where such a certified or consent election results in none of the three (3) or more choices receiving the majority of the valid votes cast; provided that the total number of votes for all contending unions is at least fifty percent (50%) of the number of votes cast.||| (NUWHRAIN -Manila Pavilion Hotel Chapter v. Secretary of Labor and Employment, G.R. No. 181531, July 31, 2009)
PRINCIPLE OF FAIR REPRESENTATION An employers' organization must not act in a manner that is arbitrary, discriminatory or in bad faith in representing any of the employers in the group appropriate for collective bargaining.
SCOPE: BARGAINING UNIT BARGAINING UNIT – refers to a group of employees sharing mutual interests within a given employer unit, comprised of all or less than all of the entire body of employees in the employer unit or any specific occupational or geographical grouping within such employer unit. (DO 40-03)
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JURISDICTIONAL PRECONDITIONS TO COLLECTIVE BARGAINING 1.) Possession of the status of majority representation of the employee’s representative; 2.) Proof of majority representation; 3.) A demand to bargain. What is the right to collective bargaining? -
The right to of the EEs through the certified bargaining agent to negotiate with the ER in order to reach agreements regarding the terms and conditions of employment.
Can this right be exercised by any labor organization even if it has not been certified as the exclusive bargaining agent? -
No
DUTY TO BARGAIN WITH OR WITHOUT A CBA Article 252. Meaning of duty to bargain collectively. The duty to bargain collectively means the performance of a mutual obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages, hours of work and all other terms and conditions of employment including proposals for adjusting any grievances or questions arising under such agreement and executing a contract incorporating such agreements if requested by either party but such duty does not compel any party to agree to a proposal or to make any concession. It is the mutual obligation of the employer and the employee’s majority union to meet and convene for the purpose of: 1) negotiating an agreement on the subjects of: a. wages; b. hours of work; and c. all other terms and conditions of employment including proposals for adjusting grievances or questions arising under such agreement; and 2) executing a contract incorporating such agreement if requested by either party. Kind of Compliance: (1) prompt; (2) expeditious; and (3) in good faith. Limitations of the duty are that it does not compel any party: (1) to agree to a proposal; or (2) to make a concession. WITHOUT COLLECTIVE BARGAINING AGREEMENT; Art.251 LC Article 251. Duty to bargain collectively in the absence of collective bargaining agreements. In the absence of an agreement or other voluntary arrangement providing for a more expeditious manner of collective bargaining, it shall be the duty of employer and the representatives of the employees to bargain collectively in accordance with the provisions of this Code. WITH COLLECTIVE BARGAINING AGREEMENT; Art.253 LC Article 253. Duty to bargain collectively when there exists a collective bargaining agreement. When there is a collective bargaining agreement, the duty to bargain collectively shall also mean that neither party shall terminate nor modify such agreement during its lifetime. However, either party can serve a written notice to terminate or modify the agreement at least sixty (60) days prior to its expiration date. It shall be the duty of both parties to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60-day period and/or until a new agreement is reached by the parties.
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The duty to bargain means all of the above and, additionally: 3) not to terminate or modify the CBA during its lifetime. - But (60) days before the CBA expires, either party may notify the other, in writing that it desires to terminate or modify the negotiable provisions of the agreement. During the 60-day period and until a new agreement is reached, the CBA remains in full force and effect and the parties are duty In what instance may the CBA be modified? -
Within the freedom period (60 days before the CBA expires)
Is that (the right to modify the CBA) part of the right to collective bargaining? -
Yes
-
Collective Bargaining Agreement – refers to the contract between a legitimate labor union and the employer concerning wages, hours of work, and all other terms and conditions of employment in a bargaining unit (IRR)
How is this started? -
Notify and submit the proposed CBA - Union must send to the ER that they wish to have a CBA
-
ER must take into account the pro posals of the union, may submit counter proposals within 10 day s
-
Parties will sit down and negotiate a CBA
Article 250. Procedure in collective bargaining. The following procedures shall be observed in collective barg aining: When a party desires to negotiate an agreement, it shall serve a written notice upon the other part y with a statement of its proposals. The other party shall make a reply thereto not later than ten (10) calendar days from receipt of such notice; Should differences arise on the basis of such notice and reply, either party may request for a conference which shall begin not later than ten (10) calendar days from the date of request. If the dispute is not settled, the Board shall intervene upon request of either or both parties or at its own initiative and immediately call the parties to conciliation meetings. The Board shall have the power to issue subpoenas requiring the attendance of the parties to such meetings. It shall be the duty of the parties to participate fully and promptly in the conciliation meetings the Board may call; During the conciliation proceedings in the Board, the parties are prohibited from doing any act which may disrupt or impede the early settlement of the disputes; and The Board shall exert all efforts to settle disputes amicably and encourage the parties to submit their case to a voluntary arbitrator. (As amended by Section 20, Republic Act No. 6715, March 21, 1989) What are the two types of provisions usually included in the CBA? -
Political and non-political provisions OR
-
Economic and non-economic provisions which refers to political provisions
FOUR (4) FORMS OF VIOLATION OF DUTY TO BARGAIN Amounts to ULP; is committed in the following forms: 1.
failure or refusal to meet and convene;
2.
evading the purposes of bargaining;
3.
not observing good faith in bargaining; and/or
4.
grossly violating the economic provisions of the CBA.
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RIGHT TO COLLECTIVE BARGAINING SINGLE ENTERPRISE BARGAINING/DECENTRALIZED BARGAINING WHEN AVAILABLE: Section 3. When single enterprise bargaining available. - Any voluntarily recognized or certified labor union may demand negotiations with its employer for terms and conditions of work covering employees in the bargaining unit concerned. Section 4. Procedure in single enterprise bargaining - A recognized or certified labor union that desires to negotiate with its employer shall submit such intention in writing to the employer, together with its proposals for collective bargaining. The recognized or certified labor union and its employer may adopt such procedures and processes they may deem appropriate and necessary for the early termination of their negotiations. They shall name their respective representatives to the negotiation, schedule the number and frequency of meetings, and agree on wages, benefits and other terms and conditions of work for all employees covered in the bargaining unit. PROCEDURE: - a recognized or certified labor union that desires to negotiate with its employer shall submit such intention in writing to the employer, together with its proposals for collective bargaining; - the recognized or certified labor union and its employer may adopt such procedures and processes they deem appropriate and necessary for the early termination of their negotiations; - they shall: 1) name their respective representatives; 2) schedule the number and frequency of meetings; 3) agree on wages, benefits and other terms and conditions of work for all employees covered in the bargaining unit.
MULTI-EMPLOYER BARGAINING/INDUSTRY-WIDE BARGAINING SECTION 5. When Multi-Employer Bargaining Available . — A legitimate labor union(s) and employers may agree in writing to come together for the purpose of collective bargaining, provided: (a) only legitimate labor unions who are incumbent exclusive bargaining agents may participate and negotiate in multiemployer bargaining; (b) only employers with counterpart legitimate labor unions who are incumbent bargaining agents may participate and negotiate in multi-employer bargaining; and SEID (c) only those legitimate labor unions who pertain to employer units who consent to multi-employer bargaining may participate in multi-employer bargaining. SECTION 6. Procedure in Multi-Employer Bargaining. — Multi-employer bargaining may be initiated by the labor unions or by the employers. (a) Legitimate labor unions who desire to negotiate with their employers collectively shall execute a written agreement among themselves, which shall contain the following: 1) the names of the labor unions who desire to avail of multiemployer bargaining; 2) each labor union in the employer unit; 3) the fact that each of the labor unions are the incumbent exclusive bargaining agents for their respective employer units; 4) the duration of the collective bargaining agreements, if any, entered into by each labor union with their respective employers. Legitimate labor unions who are members of the same registered federation, national, or industry union are exempt from execution of this written agreement.
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(b) The legitimate labor unions who desire to bargain with multiemployers shall send a written notice to this effect to each employer concerned. The written agreement stated in the preceding paragraph, or the certificates of registration of the federation, national, or industry union, shall accompany said notice. Employers who agree to group themselves or use their existing associations to engage in multi-employer bargaining shall send a written notice to each of their counterpart legitimate labor unions indicating their desire to engage in multi-employer bargaining. Said notice shall indicate the following: 1) the names of the employers who desire to avail of multiemployer bargaining; 2) their corresponding legitimate labor organizations; 3) the fact that each corresponding legitimate union is any incumbent exclusive bargaining agent; 4) the duration of the current collective bargaining agreement, if any, entered into by each employer with the counterpart legitimate labor union. WHEN AVAILABLE: - when a legitimate labor union(s) and employers may agree in writing to come together for the purpose of collective bargaining, provided: 1) only legitimate labor unions who are incumbent exclusive bargaining agents may participate and negotiate in multiemployer bargaining; 2) only employers with counterpart legitimate labor unions who are incumbent bargaining agents may participate and negotiate in multi-employer bargaining; and 3) only those legitimate labor unions who pertain to employer units who consent to multi-employer bargaining may participate in multi-employer bargaining.
PROCEDURE: (1) Legitimate labor unions who desire to negotiate with their employers collectively shall execute a written agreement among themselves, which shall contain the following: a.
the names of the labor unions who desire to avail of multi-employer bargaining;
b.
each labor union in the employer unit;
c.
the fact that each of the labor uni ons 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 notic e. Employers who agree to group themselves or use their existing associations to engage in multi-employer bargaining shall send a written notice to each of their counterpart legitimate labor unions indicating their desire to engage in multi-employer bargaining and shall indicate the following: a.
the names of the employers who desire to avail of multi-employer bargaining;
b.
their corresponding legitimate labor organizations;
c.
the fact that each corresponding legitimate union is any incumbent exclusive bargaining agent;
d.
the duration of the current CBA, if any, entered into by each employer with the counterpart legitimate labor union.
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