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Collective Bargaining
1. What is Collective Bargaining?
It is a process where the parties agree to fix and administer terms and conditions of
employment which must not be below the minimum standards fixed by law, and set a
mechanism for resolving their grievances.
3.Is the ratification of the CBA by the majority of all the workers in the
bargaining unit mandatory?
Yes. The agreement negotiated by the employees’ bargaining agent should be ratified
or approved by the majority of all the workers in the bargaining unit.
4.Is there any exception to the requirement of mandatory ratification by the
majority of all the workers in the bargaining unit?
Yes. Ratification of the CBA by the employees in the bargaining unit is not needed
when the CBA is a product of an arbitral award by appropriate government authority
or by a voluntary arbitrator.
The registration of the CBA will bar a certification election except within the last
sixty days (freedom period) before the expiration of the five-year CBA.
With respect to representation aspect, the CBA lasts for 5 years. However, not later
than 3 years after the execution of the CBA, the economic provisions shall be
renegotiated.
It refers to the last sixty days immediately preceding the expiration of the five-year
CBA. A petition for certification election may be filed during the freedom period.
The application for CBA registration shall be filed at the Regional Office that issued
the certificate of registration or certificate of creation of chartered local of the labor
union-party to the agreement.
The application for registration of the CBA shall be filed within thirty (30) days from
the execution of such CBA.
b) A statement that the Collective Bargaining Agreement was posted in at least two
(2) conspicuous places in the establishment concerned for at least five (5) days before
its ratification; and
c) A statement that the Collective Bargaining Agreement was ratified by the majority
of the employees in the bargaining unit of the employer concerned.
Yes. The certificate of CBA registration shall be issued by the DOLE Regional Office
only upon payment of the prescribed registration fee.
The application for CBA registration shall be processed within one day from receipt
thereof.
Failure of the applicant to complete the requirements for CBA registration but such
denial is without prejudice for the filing of another application for registration.
GOVPH
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Certification Election
1. What is Certification Election?
Certification election is a process of determining through secret ballot the sole and
exclusive bargaining agent (SEBA) of all the employees in an appropriate bargaining
unit for the purpose of collective bargaining.
A PCE is filed at the Regional Office which issued the certificate of petitioning
union’s certificate of registration/certificate of creation of chartered local.
o That the bargaining unit is unorganized or that there is no registered
CBA covering the employees in the bargaining unit;
o If there exists a duly registered CBA, that the petition is filed within the
sixty-day freedom period of such agreement;
o 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 one-year period from entry of voluntary recognition or
conduct of certification or run-off election and no appeal is pending
thereon.
The PCE will be endorsed to an election officer for the conduct of pre-election
conference wherein the date, time and place of election will be identified, the list of
challenged and eligible voters will be made, as well as the number and location of
polling places.
b) the petitioner union is not listed in the DOLE Registry of legitimate labor
organization; or
c) the legal personality of the petitioner-union has been revoked or cancelled with
finality.
The DOLE Regional Office through the election officer conducts the certification
election.
The union that garners majority of the valid votes cast in a valid certification election
shall be certified as the SEBA.
Yes, but protest should have been first recorded in the minutes of the election
proceedings.
10.What happens if the petitioner union fails to garner the majority of the valid
votes cast?
There will be no SEBA, but another PCE may be filed one year thereafter.
11. What are the requisites for certification election in organized establishments?
a) a petition questioning the majority status of the incumbent bargaining agent is filed
before the DOLE within the 60-day freedom period;
Yes, management may voluntarily recognize a union if there is no other union in the
company and if other requirements are complied with (Sec. 2, Rule 7 of D.O. 40-03).
The employer shall not be considered a party to a petition for certification election,
whether it is filed by an employer or a legitimate labor organization, and shall have no
right to oppose it. Its participation shall be limited only to being notified or informed
of petition for certification election and submitting the certified list of employees or
where necessary, the payrolls (Employer as Bystander Rule)
GOVPH
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Right to Self-Organization
1.What is Right to self-organization?
It is the right of workers and employees to form, join or assist unions, organizations or
associations for purposes of collective bargaining and negotiation and for mutual aid
and protection. It also refers to the right to engage in peaceful concerted activities or
to participate in policy and decision-making processes affecting their rights and
benefits.
None, provided that the required 20% membership of the bargaining unit is complied
with.
The local/chapter shall acquire legal personality only for purposes of filing a petition
for certification election from the date the duly registered federation or national union
issued a charter certificate.
The local/chapter shall be entitled to all other rights and privileges of a legitimate
labor organization upon the submission of the following:
charter certificate
the names of the local/chapter's officers, their addresses, and the principal
office of the local/chapter; and
the chapter constitution and by-laws is the same as that of the federation, this
fact shall be indicated accordingly.
The Genuineness and appropriate execution of the supporting requirement
shall be certified under oath by the secretary or treasurer of the local/chapter
and attested to by its president.
9.When may the Regional or BLR Director Inquire into the financial activities of
a legitimate labor organization?
The regional or BLR Director may inquire into the financial activities of any
legitimate labor organization and examine their books of accounts and other records to
determine whether they are complying with the law and the organization's constitution
and by-laws upon the filing of a request or complaint for the conduct of an accounts
examination by any member of the labor organization, supported by the written
consent of at least twenty (20%) percent of its total membership ( Art. 274 of the
Labor Code, as amended).
GOVPH
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f) Recognition of the right of labor to its just share in fruits of production; and
Article 211 of the Labor Code, as amended by R.A. 6715, on the State Policy on
Labor Relations:
c) To foster the free and voluntary organization of a strong and united labor
movement;
GOVPH
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ULPs are offenses committed by the employer or labor organization which violate the
constitutional right of workers and employees to self-organization. ULP acts are
inimical to the legitimate interests of both labor and management, disrupt industrial
peace and hinder the promotion of healthy and stable labor-management relations.
(Art. 248 of the Labor Code, as amended)
ULP is not only a violation of the civil rights of both labor and management, but also
a criminal offense against the State. Criminal ULP cases may be filed with the regular
courts. No criminal prosecution may be instituted, however, without a final judgment
from the NLRC that an unfair labor practice was committed.
c) Discrimination as regards to wages, hours of work, and other terms and conditions
of employment in order to encourage or discourage membership in any labor
organization; and
d) Dismissal, discharge, prejudice or discrimination against an employee for having
given or being about to give testimony under the Labor Code. (Art. 248, 249 of the
Labor Code, as amended)
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Termination of Employment
1. What is the right to security of tenure?
The right to security of tenure means that a regular employee shall remain employed
unless his or her services are terminated for just or authorized cause and after
observance of procedural due process.
a) serious misconduct;
b) willful disobedience;
3. Are there other grounds for terminating an employment? What are they?
b) redundancy;
c) retrenchment to prevent losses;
e) disease / illness.
A. In a termination for just cause, due process involves the two-notice rule:
a) A notice of intent to dismiss specifying the ground for termination, and giving said
employee reasonable opportunity within which to explain his or her side;
6. What is the sanction if the employer failed to observe procedural due process
in cases of legal and authorized termination?
Yes. The legality of a dismissal may be questioned before the Labor Arbiter of a
Regional Arbitration Branch of the National Labor Relations Commission (NLRC),
through a complaint for illegal dismissal. In establishments with a collective
bargaining agreement (CBA), the dismissal may be questioned through the grievance
machinery established under the CBA. If the complaint is not resolved at this level, it
may be submitted to voluntary arbitration.
8. In cases of illegal dismissal, who has the duty of proving that the dismissal is
valid?
The employer.
9. Suppose the employer denies dismissing the employee, who has the duty to
prove that the dismissal is without valid cause?
The employee must elaborate, support or substantiate his or her complaint that he or
she was dismissed without valid cause (Ledesma, Jr. vs. NLRC, 537 SCRA 358,
October 19, 2007).
The substantive aspect pertains to the absence of a just or authorized cause supporting
the dismissal.
The procedural aspect refers to the failure of the employer to give the employee the
opportunity to explain his or her side.
An employee who is dismissed without just cause is entitled to any or all of the
following:
d) damages if the dismissal was done in bad faith (Aurora Land Project Corp. vs
NLRC, 266 SCRA 48).
12. What is reinstatement?
Reinstatement means restoration of the employee to the position from which he or she
has been unjustly removed.
Reinstatement without loss of seniority rights means that the employee, upon
reinstatement, should be treated in matter involving seniority and continuity of
employment as though he or she had not been dismissed from work.
Full backwages refer to all compensations, including allowances and other benefits
with monetary equivalent that should have been earned by the employee but was not
collected by him or her because of unjust dismissal. It includes all the amounts he or
she could have earned starting from the date of dismissal up to the time of
reinstatement.
Yes. Proof of actual or imminent financial losses that are substantive in character must
be proven by the employer to justify retrenchment (Lopez Sugar Central vs. NLRC,
189 SCRA 179).
18. Are there other conditions before an employee may be dismissed on the
ground of redundancy?
b) Fair and reasonable criteria in selecting employees to be dismissed, such as but not
limited to less preferred status (e.g. temporary employee), efficiency and seniority
(Asian Alcohol Corp. vs. NLRC, 305 SCRA 416);
c) A one-month prior notice is given to the employee and DOLE Regional Office as
prescribed by law.
Yes. The employer may terminate employment on ground of disease only upon the
issuance of a certification by a competent public health authority that the disease is of
such nature or at such stage that it cannot be cured within a period of six months even
with proper medical treatment.
Yes, provided it is permitted under circumstances for a period of not more than six (6)
months. Beyond this period, floating status becomes constructive dismissal which
entitles the employee to separation pay (Phil. Industrial Security Agency Corp. vs.
Virgilio Dapiton and NLRC, 320 SCRA 124)
No. An employee is not entitled to separation pay when he or she resigns voluntarily,
unless it is a company practice or provided in the CBA (Hanford Philippines Inc. vs.
Shirley Joseph, 454 SCRA 786, March 31, 2005).
Yes, provided that these are voluntarily signed and the consideration is reasonable and
is not against the law or public policy. (More Maritime Agencies vs. NLRC, 307
SCRA 189)
Quitclaims entered into by union officers and some members do not bind those who
did not sign it (Liana’s Supermarket vs. NLRC, 257 SCRA 186).
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Strikes and Lockout
1. What is alternative dispute resolution (ADR)?
2. What is conciliation-mediation?
Any party to a labor dispute, whether an individual, union or management, can avail
of the conciliation mediation services at the National Conciliation and Mediation
Board (NCMB) and its Regional Branches thru a request for assistance, notice of
preventive mediation or notice of strike/lockout.
4. What are the issues that may be the subject of preventive mediation?
5. Suppose the issue on preventive mediation is not settled, what action may be
taken?
7. What are the valid issues/grounds that may be the subject of a notice of
strike/lockout?
A notice of strike or lockout may be filed on grounds of unfair labor practice (ULP) or
deadlock in collective bargaining (CB).
Yes. Upon agreement, the parties may bring the matter for resolution before an
accredited voluntary arbitrator of their own choice, in which case the Notice is
deemed automatically withdrawn and dropped from the dockets.
a) A request to the concerned NCMB regional branch to observe the conduct of the
strike/lockout vote;
b) Actual conduct of strike/lockout vote must be approved through secret ballot by the
majority of the union members/board of directors of the corporation or association or
of the partners in a partnership;
c) The result of the strike or lockout VOTE shall be submitted to the concerned
NCMB-Regional Branch;
d) The union must wait for the lapse of the 7-day mandatory strike ban period from
the submission of the strike/lockout vote results to give NCMB last ditch effort to
effect settlement.
If the ground of the notice of strike is CB deadlock, the cooling-off period is 30 days.
If ULP, 15 days. During these periods, the NCMB shall exert all efforts at the
mediation and conciliation to effect voluntary settlement. If Union Busting, the
cooling-off period is dispensed with but the mandatory 7-day Strike Ban period must
be complied with.
11. When may a strike or lockout be declared illegal?
A strike or lockout may be declared illegal if any of the requirements for a valid strike
or lockout is not complied with. It may also be declared illegal if it is based on non-
strikeable issues or if the issues involved are already the subject of arbitration. During
a strike or lockout, when either of the parties commits prohibited acts or practices, the
strike or lockout may be declared illegal.
In general, the Labor Arbiter in the appropriate Arbitration Branch of the NLRC has
the power to determine questions involving the legality or illegality of a strike or
lockout upon the filing of a proper complaint and after due hearing.
Where the matter of legality or illegality of a strike is raised in the dispute over which
the Secretary assumed jurisdiction or in compulsory arbitration, the same may be
resolved by the Secretary or the Commission, respectively. (IPI vs. Sec. of Labor and
Associated Labor Unions, G.R. No. 92981-83, January 9, 1992.)
Yes. Conciliation-mediation can still continue even during an actual strike or lockout
to exhaust all possible remedies and explore solutions mutually acceptable to both
parties in resolving the labor dispute.
14. What may the union do if the ground for notice of strike is ULP that involves
dismissal of union officers?
In case of dismissal of union officers, the 15-day cooling-off period shall not apply
and the union may declare a strike after observing the 7-day mandatory strike ban
period which starts after submission of the strike vote results.
15. What may happen if the dispute is considered to be imbued with national
interest?
The Secretary of Labor and Employment may assume jurisdiction over the dispute or
certify it to the NLRC for compulsory arbitration.
16. Is conciliation-mediation still possible even if the dispute has already been
assumed or certified?
Yes. The duty to bargain collectively continues until all issues involved in the dispute
have been resolved and at any point during the pendency of the case at the Office of
the Secretary or at the NLRC, the parties can still submit the dispute to voluntary
arbitration.
The strike is enjoined and the striking workers after due notice are ordered to return to
work and the management to accept them while the Secretary of Labor or the NLRC
resolves the dispute.
18. What is the effect if the strikers refuse to obey the assumption/certification
order?
The strike becomes a prohibited activity and the strike becomes illegal. The union
officers or members will be deemed dismissed from employment.
19. Can the employer file a petition to declare the strike illegal?
Yes. An employer may file a petition to declare the strike illegal at the NLRC-RAB
where the employer is located.
When the strike is held illegal, only the union officers who knowingly participated
will be considered to have lost their employment status. The union members who
knowingly participated in the commission of illegal acts during the strike may be held
liable.
A grievance is any question by either the employer or the union regarding the
interpretation or implementation of the collective bargaining agreement or
interpretation or implementation of company personnel policies or interpretation or
implementation of the productivity incentive programs or wage distortion issues or
any claim by either party that the other party is in violation of any provision of the
CBA or company personnel policies.
d. Law
e. Past practice
a. Rights disputes – pertain to any violations arising from rights established under
collective agreements, laws, rules and regulations and customary practices.
b. Interests disputes – are often referred to as bargaining deadlock issues which may
also be submitted to voluntary arbitration upon agreement of the parties.
b. A worker has been treated unfairly by some decision or policy of the company. (It
involves a disciplinary action of management)
b. Group of employees
c. The Union
d. Management or Employer
b) If the grievance is valid, the shop steward shall immediately bring the complaint to
the employee’s immediate supervisor;
Any person who has been accredited by the Board as such, or any person named or
designated in the collective bargaining agreement by the parties as their voluntary
arbitrator, or one chosen by the parties with or without the assistance of the Board,
pursuant to a selection procedure agreed upon in the CBA or one appointed by the
Board in case either of the parties to the CBA refuses to submit to voluntary
arbitration. The term includes panel of voluntary arbitrators.
31. What are the disputes/issues that may be submitted to voluntary arbitration?
c. All wage distortion issues arising from the application of any wage orders in
organized establishments. (Art. 124, LC)
d. All unresolved grievances arising from the interpretation and implementation of the
productivity incentive programs RA 6971.
e. All other labor disputes including unfair labor practices. (Art. 262, LC)
h. Illegal dismissal cases under Policy Instruction No. 56 dated April 6, 1993.
It is written agreement by the parties submitting their case for arbitration containing
the issues, the chosen arbitrator and stipulation to abide by and comply with the
resolution, including the cost of arbitration.
It is a formal demand made by one party to the other for the arbitration of a particular
dispute in case of refusal of one party to a CBA to submit to arbitration.
1. The Notice is served upon the unwilling party, copy furnished the permanent
arbitrator and the NCMB Regional Branch having jurisdiction over the
workplace;
2. Upon receipt of a notice to arbitrate after the lapse of the seventh-day period
within which to respond, the permanent arbitrator/s shall immediately
commence arbitration proceedings.
3. In the absence of a permanent arbitrator in the CBA, the Board/Branch appoints
a voluntary arbitrator who shall immediately commence arbitration proceedings
upon receipt of such appointment.
38. May the parties to a case enter into an amicable settlement of their dispute
pending resolution by the arbitrator?
Yes. In the event that the parties finally settle their dispute during the pendency of the
arbitration proceedings, the terms of settlement shall be reduced into writing and shall
be adopted as the DECISION of the arbitrator.
a. Speedy
b. Fair
c. Finality of decisions
Yes, because labor and management are social partners sharing a common interest in
the success and growth of the enterprise and the economy to promote workers'
participation in decision-making processes, create a labor relations climate conducive
to productivity improvement, improve the quality of working life and achieve and
sustain economic growth.
42. What are the mechanisms to promote labor-management cooperation?
a. direct participation mechanisms through small group activities like quality control
circles or productivity improvement circles;
combination of direct and indirect participation mechanisms like joint bodies and
small group activities.