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LABOR RELATIONS, Notes 1st Semester SY 2012-2013, Atty.

Marquez,
Reference: Azucena, Labor Code, Volume II, 2010

jumieann2C

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.

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

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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

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

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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:

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

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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 Labor Only Contractor


Contractor /Job
Contractor

Outsourcing services Supplying workers

Confirming element 1.With substantial 1. Control by the


capital. Principal employer

2. Autonomy to carry
on using his own
means & methods

Example Programming Services Programmers

Guarin v. NLRC

(employees)

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

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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

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

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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.

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

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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.

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

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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.

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

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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.

9
LABOR RELATIONS, Notes 1st Semester SY 2012-2013, Atty. Marquez,
Reference: Azucena, Labor Code, Volume II, 2010

jumieann2C

Comparison:

Independent LU, Chartered Federations, National


Locals, Workers Unions
Association

Where to Applications for registration Applications for


Register, Notice shall be filed with and registration shall be filed
of Change of acted upon by the with the Bureau or the
name, affiliation, Regional Office where the Regional Office but shall
merger & applicant principally be processed by the
consolidation operates Bureau who has national
jurisdiction.

Appeal 1. Regional Office 1. Bureau of Labor


Relations
2. Bureau of Labor
Relations 2. Secretary of DOLE

3. Court of Appeals 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.

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

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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.

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

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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.

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

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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.

13
LABOR RELATIONS, Notes 1st Semester SY 2012-2013, Atty. Marquez,
Reference: Azucena, Labor Code, Volume II, 2010

jumieann2C

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.

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

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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.

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

jumieann2C

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).

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

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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

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

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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.

18
LABOR RELATIONS, Notes 1st Semester SY 2012-2013, Atty. Marquez,
Reference: Azucena, Labor Code, Volume II, 2010

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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?

19
LABOR RELATIONS, Notes 1st Semester SY 2012-2013, Atty. Marquez,
Reference: Azucena, Labor Code, Volume II, 2010

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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.

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

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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.

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

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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.

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

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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.

23
LABOR RELATIONS, Notes 1st Semester SY 2012-2013, Atty. Marquez,
Reference: Azucena, Labor Code, Volume II, 2010

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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

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

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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.

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

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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.

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

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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

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

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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 3rd year, Union (EBR) submitted a proposal during the
60 day period prior to expiration (notice period).

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

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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

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

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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.

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

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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.

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

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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.

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

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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.

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