Labor Relations Notes

LABOR RELATIONS, Notes 1
st
Semester SY 2012-2013, Atty. Marquez,
Reference: Azucena, Labor Code, Volume II, 2010
jumieann!2C

"

29 June 2012
What law governs government employees?
Article 276. The terms and conditions of employment of all government
employees including employees of government-owned or controlled
corporations, shall be governed by the Civil Service Law, rules and
regulations.
However, the Labor Code governs employees of government-owned or
controlled corporations established under the general Corporation Law.
G.R. No. L-58494 July 5, 1989 (own research only)
PHILIPPINE NATIONAL OIL COMPANY-ENERGY DEVELOPMENT CORPORATION vs. HON.
VICENTE T. LEOGARDO, DEPUTY MINISTER OF LABOR AND VICENTE D. ELLELINA
However, the above doctrine has been supplanted by the present Constitution, which
provides:
The Civil Service embraces all branches, subdivisions, instrumentalities and agencies of
the Government, including government-owned or controlled corporations with original
charters. (Article IX-B, Section 2 [1])
Thus, under the present state of the law, the test in determining whether a government-
owned or controlled corporation is subject to the Civil Service Law is the manner of its
creation such that government corporations created by special charter are subject to its
provisions while those incorporated under the general Corporation Law are not within its
coverage.
We hold, therefore, that the PNOC-EDC having been incorporated under the general
Corporation Law, is a government-owned or controlled corporation whose employees
are subject to the provisions of the Labor Code. This is apparently the intendment in the
NASECO case notwithstanding the fact that the NASECO therein was a subsidiary of the
PNB, a government-owned corporation.

What are the relevant laws as far as labor is concern?
International Labor Organization.
! As member country of ILO, we should subscribe to whatever
resolutions.
st
jumieann!2C

#
! Its resolutions become binding laws, they are in harmony with the
laws that we have.
Does the Constitution favor the labor?
! It is not really intended to favor the labor.
! Case:
! Labor laws are not really pro-labor
! It favors labor only in case of doubt
! If the law is clear, even if it is prejudicial to labor, apply it.
Can there be equality between Labor and Capital?
! Taking into account that the playing field is not really equal, then,
there can be no equality among unequal.
! Capital = more resources
! Labor = inherently at a disadvantage
What does Tri-Partism mean?
! Government, employers & employee from the private sector.
What are the basic rights of Employee?
! Right to self- organization/association
! Right to security of tenure
! Right to a healthful and safe working conditions
! Right against involuntary servitude
! Right to social security & benefits
What are the basic rights of Employers?
! Right to select, dismiss & terminate
! Right to adopt rules
! Right to pay wages
st
jumieann!2C

$
! Right to control the means & methods
! Right to profits & expansion

Basis?
Section 1, Article III, 1987 Constitutuon:
No person shall be deprived of life, liberty, or property without due process of law, nor
shall any person be denied the equal protection of the laws.
! It is inherent in our being even if the Constitution does not provide.
Basic right to property
! 6 rights to ownership.
Business is a property to the employer.
! But it does not give you an unbridled license to abuse
Service/employment is a property to the employee.
Therefore, both have the right to protect its property.
Rule in Labor Relations
The right of my neighbor to extend his arms ends where the tip of my
nose begins

Employee
! One who is engaged in the service of another; who performs
services for another; who works for salary or wages.
! The term employee
1. Shall include any employee
2. And shall not be limited to the employee of any particular
employer, unless the Act explicitly states otherwise
3. And shall include any individual:
st
jumieann!2C

%
a. Whose work has ceased as a consequence of, or
in connection with, any current labor dispute
b. And who has not obtained any substantially
equivalent and regular employment.

Employer
! One who employs the services of others; one for whom employees
work and who pays their wages or salaries.
Independent Contractor = Job Contractor
Contractor = Labor Only Contractor
Comparison:
Independent
Contractor /Job
Contractor
Labor Only Contractor
Outsourcing services Supplying workers
Confirming element 1.With substantial
capital.
2. Autonomy to carry
on using his own
means & methods
1. Control by the
Principal employer
Programming Services Programmers Example
Guarin v. NLRC
(employees)

st
jumieann!2C

&
4 Fold Test:
1. Selection & engagement
2. Payment of wages
3. Power of dismissal
4. Control over means & methods

Labor dispute

! The test of whether a labor controversy comes within the definition
of a labor dispute depends on whether it involves or concerns
terms, conditions of employment or representations.
! Includes any controversy or matter concerning terms or conditions
of employment or the association or representation of persons in
negotiating, fixing, maintaining, changing or arranging the terms
and conditions of employment.
! The mere fact that the disputants do not stand in the proximate or
reciprocal relation of employer and employee does not remove the
dispute from the category of a labor dispute.

Why do workers organize?
! Sentiment
! Commonality of interest - the one that binds different groups of
people to form/ organize a union.
! A lot stronger when it deals with the employer
! For wages, security of tenure

st
jumieann!2C

'
Labor Organization
! Refers to any union or association of employees in the private sector
that exists in whole or in part for the purpose of collective
bargaining, mutual aid, interest, cooperation, protection, or other
lawful purposes.

Legitimate Labor Organization?
! Refers to any labor organization in the private sector registered with
the DOLE.
If not registered with DOLE, is it illegal?

! No, it is not illegal. It simply is unregistered and has no legal
personality. It exists legally but does not possess the rights of a LLO.
1. The right to petition for certification election
2. The right to collectively bargain
3. The right to strike

Labor organization = Dealing with the employer
Legitimate Labor Organization = Collective bargaining with the employer
Union
! Must be registered and issued a certification of registration to avail
of the 3 rights
! Refers to any labor organization in the private sector organized for
collective bargaining and other legitimate purposes.
Labor Organization is not necessarily a Union.
! It may be organized not necessarily for Collective Bargaining but for
mutual aid and protection.
A Union is a Labor Organization.
st
jumieann!2C

(
Not every Union is legitimate, only those properly registered are
considered LLO.
Exception: Labor Management Council (LMC).
! Pre-empting the disputes
! Must be supported by majority of the Collective Bargaining Unit
(CBU).
! Representatives of the workers in such LMC shall be elected by at
least the majority.

06 July 2012
Why do employees organize?
! Commonality of interest that they want to be protected/
propagated.
Can managers organize themselves into a Union?
! No.
! Because of conflicting interests.
How would you distinguish supervisory employees from managerial
employees?

Managerial Employees
! Are vested with powers or prerogatives to lay down and execute
management policies and/ or to hire, transfer, suspend, lay-off,
discharge, assign or discipline employees. HTSDALD
Supervisory Employees
! Are those who, in the interest of the employer, effectively
recommend such managerial actions and if the exercise of such
authority is not merely routinary or clerical in nature but requires the
use of independent judgment.
st
jumieann!2C

)
Rank and file Employees
! Do not have the power to recommend.
Federation
! Any labor organization with at least 10 locals or chapters or
affiliates, each of which must be duly certified or recognized as
collective bargaining agent.

To be able to Negotiate:
1. The Union must be registered with the DOLE
2. It must be certified or recognized as the Exclusive Bargaining
Representative (EBR) of the CBU.
Company Union
! A labor organization, which, in whole or in part, is employer-
controlled or employer-dominated.
! Article 248 (d) prohibits this
Independent Union
! A labor organization operating at the enterprise level that acquired
legal personality through independent registration.
! May affiliate with a federation or national union. Affiliate.
! Membership must be 20% of the CBU to be able to register.
Charter/ Local
! Its legal personality is derived from the federation/national union
but it may subsequently register itself independently.
! 20% membership in the CBU not required, expediting the growth of
federations and national unions, to foster a strong and unified labor
movement.
! Acquires (tentative) legal personality to file a petition for CE.
st
jumieann!2C

*
! Tentative legal personality, subject to submission of additional
requirements to acquire other rights of LLO.
Chartering
! When a duly registered federation or national union issues a charter
to a union in an enterprise and registers the creation of the chapter
with the Regional Office where the applicant operates.

May an Employer oppose a Petition for Certification Election?
! No, an employer is considered a mere bystander and has no right
to oppose the petition.
! Participation is limited to being informed about the petition and to
being required to submit the list of employees if a CE will be held.

Recognition of a Labor Union by BLR is not a Ministerial Duty.
! As preventive measures against the commission of fraud, after the
Labor Organization had filed the necessary papers and documents
for registration, it becomes mandatory for the BLR to check if the
requirements under Article 234 have been sedulously complied
with. (Progressive Dev. Corp-Pizza Hut v. Laguesma)
! The Labor Union (Independent or Local) 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
and not on the date of submission of documents.
Unions Legitimacy not subject to Collateral Attack.
Effect of Registration under the Corporation Law
! A labor organization may be organized under the Corporation Law
and issued a Certificate of Incorporation by the SEC.
! Has the effect of giving it a juridical personality before regular
courts of justice.
st
jumieann!2C

"+

Comparison:
Independent LU, Chartered
Locals, Workers
Association
Federations, National
Unions
Where to
Register, Notice
of Change of
name, affiliation,
merger &
consolidation
Applications for registration
shall be filed with and
acted upon by the
Regional Office where the
applicant principally
operates
Applications for
registration shall be filed
with the Bureau or the
Regional Office but shall
be processed by the
Bureau who has national
jurisdiction.
Appeal 1. Regional Office
2. Bureau of Labor
Relations
3. Court of Appeals
1. Bureau of Labor
Relations
2. Secretary of DOLE
3. Court of Appeals

Affiliation
! An affiliate is an independently registered union that enters into an
agreement of affiliation with a federation or national union.
! Also refers to a chartered local, which applies for and is granted an
independent registration but does not disaffiliate from its mother
federation or national union.
Affiliation with Same Federation
! Supervisors union and rank and file union in the same company
may affiliate with the same federation.
The 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 the agent.
st
jumieann!2C

""
Despite affiliation, the local union remains the basic unit free to serve the
common interest of all its members.

13 July 2012
Disaffiliation
! May be done at anytime if there is no express stipulation for such
period in their Constitution and By Laws (CBL)
! Although generally, it is done during freedom period (60 days
preceding the expiration of the CBAs representational provision).
! If there is a stipulation in the CBL, then it must be followed,
otherwise, the act may constitute disloyalty.
! Must be decided by the majority of the entire membership.
! The obligation of an employee to pay union dues is coterminous
with his affiliation or membership.
To disaffiliate is a right, but to observe the terms of affiliation is an
obligation.
Effects:
Chartered Local after disaffiliating with the Mother Union:
Existing/Implementation stage of CBA
! Local Union will continue to administer the existing CBA but may not
negotiate until such time it registers itself independently or a new
EBR is elected.
! Obligation of Company to give union dues is coterminous with the
relationship of local union with the mother union. Therefore, union
dues are terminated.
! But mother union can still recover special assessment provided
services were rendered.
! Mother unions representation terminates once local union
disaffiliates.
st
jumieann!2C

"#
Constitution and By Laws
! It constitutes a contract between the members, which the court will
enforce.
! Provided they are reasonable, uniform and not discriminatory, not
contrary to public policy and law of the land.
! It governs the relationship between and among its members.
! May be made, changed, unmade, superseded by a majority vote
of the members.

Three Grounds to Cancel Registration:
1. Any falsehood /misrepresentation about the CBL.
2. Any falsehood/misrepresentation about the election of officers.
3. Voluntary dissolution.
! 2/3 union membership vote
! Application to cancel submitted to RO

May an employer file for a petition for cancellation of registration?
! Yes, any interested party may file for a petition for cancellation of
registration. An employer is an interested party.

What are the requirements for Voluntary Dissolution?
1. Secret balloting
2. Which has to take place in a meeting duly called for the purpose of
deciding WON to dissolve the Union. (only for that purpose)
3. Vote should represent 2/3 of the affirmative vote of the general
membership.
st
jumieann!2C

"$
Dissolution is a serious matter.
Where do you file a petition for cancellation of registration?
Regional Office of DOLE, Regional Director is the one authorized to
cancel. (Local, Independent)
Bureau of Labor Relations, Bureau Director is the one authorized to
cancel. (Federation, National Union)

Who are eligible to become members of the Union?
! Generally, all employees except when there is a provision stating
otherwise in the CBL.

REMEMBER:

Members of the CBU are not automatically members of the Union.
Members of the Union are automatically members of the CBU.
Membership in the Union does not automatically mean coverage in the
CBA.

RULES:
1. Membership in the Union is determined by the Constitution & By
Laws.
2. Coverage in the Collective Bargaining Agreement is determined by
the provision of the CBA.
3. Coverage in the CBU is determined by commonality of interest.

May Managerial Employees join/form a Union?
! NO.
st
jumieann!2C

"%
May Supervisory Employees form a Union?
! Yes, but they cannot commingle with the rank & file employees.
Does it violate the constitutional rights of association of managerial
employees?
! No, because managerial employees can still form an organization
but not that of a Union.
! What is prohibited is to form a Union for the purpose of collective
bargaining.
! But they can deal with the employer because anyone can do this.
We said that members of the CBU are not necessarily members of the
Union.
Victoriano vs. Elizalde
! Freedom of Religion was given more weight.
Who are Confidential Employees?
1. Assist or act in a confidential capacity
2. To persons who formulate, determine, and effectuate management
policies in the field of Labor Relations.
Doctrine of Necessary Implication
! The disqualification of the managerial employees equally applies to
confidential employees.
! What is implied also has the effect of what is expressed.

19 July 2012
Whether all government employees can unionize?
! Yes, but they cannot negotiate those that are fixed by law, such as
wages, terms and conditions of employment, etc.
! They may register with the Bureau of Labor Relations.
st
jumieann!2C

"&
! Certificate of Registration shall be jointly approved by the CSC
Chairman & Secretary of DOLE.
Original Charter
! The birth or creation is by virtue of an act of Congress. Such that,
the office will not exist without such legislation.
! E.g. Central Bank, DBP, usually out of coverage by the
Compensation and Position Classification Act. These are
government corporations therefore, they can negotiate their
salaries.
DOLE
! No original charter, can the employees unionize & collectively
bargain?
! Yes, those matters which are not covered by the General
Appropriations Act or matters which will not require appropriation.
Can they strike?
! No.
Can security guards unionize?
! Yes.
Can members of the AFP/PNP unionize?
! No, the security and safety of the public cannot be compromised.
Can Foreigners unionize?
! No, whether natural or juridical, they are strictly prohibited from
engaging directly or indirectly in all forms of trade union activities.
! But aliens with valid work permits may exercise the right of self-
organization if they are nationals of a country that grants the same
or similar rights to Filipino workers.

st
jumieann!2C

"'

Can workers in the Export Processing Zone unionize?
! Yes, because they are still part of the Philippine territory, which is
subject to its sovereignty and laws.
! Where government of host countries offer special incentives to
attract foreign investments, these incentives should not include any
limitations on the workers freedom of association or the right to
organize and bargain collectively.
Public Sector Labor Management Council (PSLMC)
! Proscribes government employees from staging a strike.

Relationship of Union & its Members
! The relationship is characterized as fiduciary.
! The members repose on them trust & confidence to represent them.

Election of Officers, how is it done?
Who can vote?
! ONLY members of the Union

Can an officer of a Union be a non-employee?
! No, one has to be an employee.
May a Union Officer or member be expelled?
! Yes, because the Union can also violate the rights of the union
members.
What is the remedy of the aggrieved members?
! File a complaint with the Med-Arbiter (Intra-Inter Union Disputes).
st
jumieann!2C

"(
! 30% support requirement is really not a necessity.
! One or two may report a violation.
Check off
! a method of deducting from an employees pay at prescribed
period, the amounts due the union for fees, fines, or assessments.
What is the difference between Union Dues & Special Assessment?
Union Dues
! Regular, periodic & uniform.
! To meet the Unions general & current obligations
Special Assessment
! For special purpose.
! Required only for a limited time.
! There are requisites before it may be deducted except for
mandatory activities by the Code.
Requisites
1. Authorized by a written resolution of a majority of all members at a
general membership meeting duly called for the purpose.
2. Secretarys record of the minutes of the meeting including: list of
members present, votes cast, purpose of special assessment, and
recipient.
3. Individual written authorization for check-off duly signed by the
employee concerned. (not needed if mandatory activity of the
Labor Code)
These must be forwarded to the Employer for him to be able to deduct the
special assessment from the employees salary.
Mandatory Activities:
! Training in SOLER
st
jumieann!2C

")
! Counsel during Negotiation
Check off of Union Dues is usually included in the CBA.
Can the Union successfully demand from the employer the dues by filing
a complaint for recovery & damages?
! No. The employer will not be liable to the Union but it may constitute
as Unfair Labor Practice (ULP- anything that thwarts the right of
employees to self-organization).
! In truth, it imposes an extra burden on the employer in the form of
additional administrative and bookkeeping costs.
! The only obligation of the employer under a check-off is to effect
the deductions and remit the collections to the union.
Agency Fee
! Equivalent to union dues, which a non-union member pays to the
union because he benefits from the CBA negotiated by the union.
! In negotiating the CBA, the Union served as the employees agent.
! Allowed under Article 248 (e).
! Individual written authorization is not required, because the fact of
enjoyment from the benefits of the CBA is enough authority.
Can the Secretary of Labor inquire upon the Financial Statements of the
Union?
! Yes, upon petition of at least 20% of the union membership.
The Union can demand for a copy of the Financial Statements of the
employer. If Employer fails or refuses to furnish a copy, it may constitute as
ULP.

Organized Establishment
! Refers to an enterprise where there exists a recognized or certified
sole and exclusive bargaining agent.
st
jumieann!2C

"*
! Petition for certification election may only be filed during the
freedom period and supported by at least 25% membership of
the CBU.
! Voluntary Recognition not allowed.
Unorganized Establishment
! Where no Union has yet been duly recognized or certified as
bargaining representative.
! May petition for certification election anytime.
! If petition is granted, it cannot be appealed.
! Voluntary Recognition allowed

Terms of a CBA
Representation Aspect- 5 years
! Freedom period (60 days preceding the expiration of the CBA)
! The new EBR shall respect the existing CBA. It will only administer the
existing CBA, but may renegotiate to shorten the CBA to coincide
with its term.
! Contract Bar Rule: Applies during this term. Med-Arbiter can deny
the PCE prior or after the freedom period.
! Political Event
! Employees & Union Only
Non-representation Aspect- 3 years
! Renegotiation period/ notice or proposal period vis-a-vis freedom
period
! Economic event
! Exclusive bargaining representative & Employer
Pending Certification Election, can CBA be renegotiated?
st
jumieann!2C

#+
! 2005 case where the SC held that there has to be a resolution of
certification election first before the conclusion of a new CBA.
May an employer file a petition for certification election?
! Yes, when there is a demand for CBA
May an employer oppose a petition for certification election?
! No, it is considered as a mere bystander.

26 July 2012

There are 3 methods to determine the bargaining union
First Method: Voluntary Recognition
! The law allows the employer to voluntarily recognize a union.
! It does away with the more tedious electoral contest between
unions.
! It requires 3 concurrent conditions
1. Possible only in an unorganized establishment.
2. Only one union is asking for recognition.
3. Union should be the majority union.
! If objections are raised, the recognition is barred, and a certification
election or consent election will have to take place.
! When & where to file: Submit a Notice of VR to the Regional Office
within 30 days from such recognition.
! Effect of Recording of VR: From time of recording of VR, the
recognized labor union shall enjoy the rights, privileges and
obligations of an existing EBR of all the employees in the bargaining
unit.

st
jumieann!2C

#"
Second Method: Certification Election
! A process ordered and supervised by the DOLE, of determining
through secret ballot, whether or not the majority of the employees
wish to be represented by a labor organization and, in the
affirmative case, by which particular labor organization, for
purposes of collective bargaining.
! All employees whether union member or not, who belong to the
appropriate bargaining unit can vote.
! It does not warrant a Direct Certification by the mere fact that there
was no opposition.
! Who may file: Any legitimate labor organization, national or
federation, employer.
! In unorganized establishment, once a petition is filed by a LLO, the
Med-Arbiter shall automatically order the conduct of CE. Not
appealable. (to promote free trade unionism)
! Where to file: Regional Office. Shall be heard and resolved by the
Med-Arbiter.
1. If two or more petitions, shall be consolidated to Med-Arbiter who
first acquired jurisdiction.
2. If filed in different RO, RO, which the petition was first filed, shall
exclude all others.
! When to file:
1. If no CBA, anytime outside the 12month bar (Certification Year)
2. If there is an existing CBA, can be filed only within the last 60 days of
the fifth year of the CBA (freedom period).
! Denial or grant by Med-Arbiter: Always appealable to the Secretary
of DOLE.
! Issuance of formal order denying or granting the petition.
1. Unorganized establishment: within 10 days from the date of last
hearing.
st
jumieann!2C

##
2. Organized establishment: after the lapse of the freedom period.
! 8 Grounds to deny a PCE:
1. Non- Appearance
! 2 successive conferences called by the Med-Arbiter and duly
notified.
2. Unregistered Union
! Should have been revoked or cancelled with finality.
! Thus, it may be ordered despite the pendency of a petition to
cancel the unions registration.
! Illegitimacy
3. No Charter
! Illegitimacy
4. Absence of Employment Relationship
! There would be no legal basis
5. 12 month Bar
! Certification Year
! No PCE may be filed within 1year from the date of a valid
certification election, consent, or run-off election or from the date
of a voluntary recognition of the union by the employer
! Presupposes that there was an actual conduct of election.
! An election may be held less than a year after an invalid election or
failure of election.
! Applies to No Union choice in CE.
6. Negotiation or Deadlock
! Artificial Deadlock will not bar a PCE.
st
jumieann!2C

#$
! Genuine Deadlock: Submission of the deadlock to a conciliator or
arbitrator or is a subject of a valid notice of strike.
7. Existing CBA
! Contract bar
! Does not apply if CBA is defective. Defective, hence unproductive
of the legal effects attributed to it.
! Even if it is not certified but registered in accordance with Article
231
! Filed before or after freedom period
! A CBA which was prematurely renewed is not a bar to the holding
of a certification election
8. Lack of Support
! 25% of of the bargaining unit
! Without this minimum support, the challenge to the incumbent looks
like a nuisance
! Withdrawal of support before PCE: Valid, PCE may be denied.
Presumed voluntary.
! Withdrawal of support after PCE: Not Valid, PCE may be granted.
Deemed Involuntary. Procured through duress, coercion, or for
valuable consideration.
Can Employer file a PCE? Yes
But ordinarily, it is the Union that files.
Can the Employer oppose it? No, it is a mere bystander.
What is the required rule to be certified as the Exclusive Bargaining
Representative?
! Majority of the votes cast provided that the votes cast is the
majority of the CBU.
! Double majority.
st
jumieann!2C

#%
Who are eligible to vote?
! All the members of the CBU
When is there a failure of election?
! Where the number of the votes cast in a certification or consent
election is less than the majority of the total membership of the CBU.
! Election may be held within 6 months
Recognition = Employer
Certification = DOLE
Valid Election
! Where the number of the votes cast in a certification or consent
election is the majority of the total membership of the CBU.
Movant Intervenor
! Other Union who wants to be certified
Forced Intervenor
! Existing EBR
Process:
Determination by DOLE through the Med-Arbiter whether to grant or deny
the petition.
! Parties to submit their pleadings, support of their claims
If Granted:
! Exclusion/ inclusion proceedings
! Posting of Election details
! Election
! Certification
Labor Management Council
st
jumieann!2C

#&
! Majority support of the CBU
! Single majority
Run-off election
Requisites:
1. Valid Election
2. There are at least 3 choices
3. Not one of the unions obtained the majority of the valid votes
4. Total number of votes for all the unions is at least 50% of the votes
cast
5. There is no unresolved challenge of voter or election protest.
! The rematch is between the two unions who garnered the two
highest votes
! The No Union choice is eliminated from the Run-off

What is a Consent Election?
! Its purpose is the same, namely, to find out which union should serve
as the bargaining agent.
! Where a petition for certification had been filed, and upon the
intercession of the Med-Arbiter, the parties agree to hold a consent
election, the results shall constitute a bar to the holding of a
certification election for 1 year from the holding of such election.
! Where no petition for certification election was filed but the parties
themselves agreed to hold a consent election with the intercession
of the RO, the results thereof shall constitute a bar to another
petition for certification election.

st
jumieann!2C

#'
The difference is that a certification election is ordered by the Department
whereas, a consent election is voluntarily agreed upon by the parties, with
or without the intervention of the Department.

Once the Union had been certified/recognized, what are the rights?
1. Exclusively bargain with the employers regarding wages, hours of
work, and other terms & condition of employment.
Jurisdictional Preconditions of Collective Bargaining:
1. Possession of status of majority representation
2. Proof of majority representation
3. Demand to bargain
When should negotiation begin?
! During the Certification year or the 12 month bar.
If the Union submits its proposals, should the company submit its counter-
proposal?
! The company is required to submit only a REPLY, not necessarily a
counter-proposal.

Successor Employer Rule
! Generally, the subsequent employer is not liable for the obligations
of the previous employer.
! However, if such merger or acquisition is entered into to perpetrate
a fraud, injustice, or crime, or to evade the duty to bargain, that veil
will be pierced.
! Doctrine of Piercing of the Veil of the Corporate Fiction: The
previous and subsequent employer is treated as one, so much so
that the liability of the previous employer will be the liability of the
subsequent employer.
st
jumieann!2C

#(
! Exception Lock, Stock, & Barrel: All assets, and liabilities are
transferred to the subsequent employer.
! If Scheme: Doctrine will apply.
! If in Good Faith: Doctrine will not apply.

Multi-Employer Bargaining:
! It is not prohibited in the Philippines but it is not adapted.
! There is a provision in the law to contribute to industrial peace.
! Two or more employers join together to form one group that will
negotiate with the EBR of each employer.
! Pros: It abbreviates the process.
! Cons: Dissimilarity in need and capacity to give in demands.
! Master Contract = One size fits all.
! It is a negotiated contract.

Mandatory Subjects for Bargaining:
1. Wages
2. Hours of work
3. Terms & conditions of employment
! If an employer refuses to negotiate, it will amount to a refusal to
bargain, which may constitute as an ULP.
Non-mandatory subjects for Bargaining:
! Employer will not be liable for ULP

st
jumieann!2C

#)
Surface Bargaining
! Initially agrees on a term but later on will revoke its approval of such
term
! Bato sa buhangin
Blue Sky Bargaining
! Low balling & high balling
! Kapantay ay langit
Does it amount to bargaining in bad faith? Not necessarily.
! Must take into considerations a lot of circumstances
Bulwarism
! Take it or leave it
! Amounts to bargaining in bad faith
! taga mo sa bato
Deadlock
! Parties fail to reach an agreement
! There is a party that declares such

Preventive Mediation
! Nearing deadlock, one goes to NCMB, and writes, we are about
to reach a deadlock, a way of seeking intervention to prevent a
deadlock, that will eventually lead to a strike/lockout.

2 August 2012
Situation:
CBA will expire on its 3
rd
year, Union (EBR) submitted a proposal during the
60 day period prior to expiration (notice period).
st
jumieann!2C

#*
Employer wanted to take out portion which was formerly included in the
CBA, employer wanted to reduce the benefits in the new CBA, is that
ULP?
No. When you reopen the CBA negotiation that opens the new
space for the Union & Employer to renegotiate.
The employer could do so, it may increase or reduce the benefits in
the new CBA.
There are things to consider, such as the cost of benefits &
affordability of the employer.
For as long as it will not go down to the extent provided by the
Labor Standards on the minimum terms & conditions of employment.
Who should ratify the CBA?
The majority of the members of the Collective Bargaining Unit (CBU)
should ratify the CBA.
Is ratification necessary?
Ratification is not necessary if it is a result of an arbitral award.
Rationale: Mandated CBA is repugnant to ratification. It negates the
mandated CBA.
Mandated CBA = conflicts/issues are finally settled
Strike = tool of the Union
Lockout = tool of the Employer
Scenario:
If improved balloting offer did not resolve the conflicts/issues, if the
industry is of National interest, the Secretary of Labor can assume
jurisdiction or certify the case to the NLRC.
During the proceedings, the parties are required to submit
memorandum/position paper on:
1. Proposal/ counter proposal
st
jumieann!2C

$+
2. Party to agree
3. Justification
On the basis of these documents and other considerations, the Secretary
of Labor or the NLRC will adjudicate the case and provide for a
mandated CBA.

What do you mean by Automatic Renewal of CBA?
While the parties are negotiating, they shall maintain the status quo.
Read: New Pacific Timber Co. v. NLRC

When does it take effect?
If the new CBA is concluded during the 6 months following the
expiration of the old CBA, it will take effect on the day following the
expiration of the old CBA.
If the new CBA is concluded after 6 months following the expiration
of the old CBA, it will take effect based on the agreement of the parties.
Obiter: Obstinate and recalcitrant Union works in favor of the employer.
If it is an arbitral award?
The date of effectivity is discretionary to the adjudicator.
Because the reference made in the preceding situation is parties
agreeing.
It is outside the provision of the effectivity of the CBA.

Can a regular court issue an injunction on cases arising out of a labor
dispute?
As a general rule, NO.

st
jumieann!2C

$"
Exceptions:
1. When a person obstruct the free ingress to or egress from the
employers premises for lawful purposes.
2. When a person obstructs public thoroughfares
3. Act amounts to a crime
What is a strike?
It is a temporary work stoppage by the employee due to a labor
dispute.
What is a lockout?
It is a refusal by the employer to furnish work to the employee due
to a labor dispute.
What are the grounds?
1. Unfair Labor Practice
2. Bargaining Deadlock

Are there other grounds?
None. These are the only grounds for a lawful strike.
Situation:
ABC Union declared a strike against ABC Company
Can XYZ Union, not an employee of ABC Company join the strike?
No, Sympathetic strike is prohibited by law.
How about Welga ng Bayan?
This is done to petition the government for redress of grievances. This
can be done even without work stoppage. If it will amount to a work
stoppage, then it is a strike.
Strike, Welga ng Bayan, Boycott- NO IDENTITY.
st
jumieann!2C

$#
What is the procedure for a lawful strike?
There are four requisites before one may conduct a lawful strike.
1. Filing of notice 30/15 days before actual strike.
2. Observance of cooling of period
(a) ULP- 15 days
(b) Bargaining Deadlock- 30 days
(c) Existence of Union is threatened- not necessary
3. Taking of strike vote
4. Observance of the 7 day result of strike vote period
What is a cooling of period?
This is a period to be observed in order to cool off the temper of the
parties from the day of filing of the notice of strike to the day of the actual
strike.
This is also a period for the DOLE to mediate and conciliate the
parties and encourage them to submit their dispute to a voluntary
arbitration in order to prevent the strike, since the law does not favor strike
for it is counter-productive.
This may not be observed when the existence of the union is
threatened:
1. When the elected officials of the Union are illegally dismissed by the
employer
2. These officials are elected in accordance with the CBL of the Union
3. The existence of the Union is threatened

Observance of the 7 days result of strike vote period should be reckoned
from the date of the expiration of the cooling off period when done
before or during the cooling off period.

st
jumieann!2C

$$
What is the difference between the consequences of a Union official &
Union member participating in an illegal strike?
Union officials who knowingly participated in an illegal strike may be
declared to have lost their employment status whereas mere participation
of a Union member in an illegal strike does not have the same effect.
Any Union officer or member who knowingly participates in the
commission of illegal acts during a strike may be declared to have lost his
employment.

What is the guideline for arrest & detention? May it be done during a
strike?
Except on grounds of national security and public peace, or in case
of a commission of a crime, there must first be a filing of notice and a
permission/consultation from DOLE to conduct an arrest or preliminary
investigation.

Labor Relations Notes

Hochgeladen von

Dokumentinformationen

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

Labor Relations Notes

Hochgeladen von

Copyright:

Verfügbare Formate

LABOR RELATIONS, Notes 1

Das könnte Ihnen auch gefallen