June 10, 2011 Right to Self-Organization Constitutional Provisions Art III Sec 8 The right of the people, including

those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged. Only source of rights Cannot be legislated out of existence Other (Constitutional) provisions require implementing legislation

Is the right to self-organization a constitutional right? If so, (there are so many problems), government employees do not fully enjoy the right. Also, the Labor Code takes exception to certain groups of employees such as (but not limited to) managerial employees. The SC also denies such right to confidential employees. How did they whittle down such right? Art IX B Sec 2 (5) - The right to self-organization shall not be denied to government employees. Art XIII Sec 3 - The promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and self-reliance. Art 244 (PD 442) - Right of Employees in the Public Service Employees of government corporations established under the Corporation Code shall have the right to organize and to bargain collectively with their respective employers. All other employees in the civil service shall have the right to form associations in the civil service not contrary to law SSS vs. COA Signing bonus proscribed by the SC Alliance of Government Workers vs. Minister of Labor and Employment Employment terms of government employees cannot be the subject of collective bargaining.
F: Petitioner is a federation of unions in govt-owned corps. and in govt schools. It petitioned the SC for a ruling that PD 851, requiring "all employers... to pay their employees receiving a basic salary of not more than P1,000 a month... a 13th month pay," applies to govt employees HELD: NO. It is an old rule of statutory construction that restrictive statutes and acts w/c impose burdens on the public treasury or w/c diminish rights and interests, no matter how broad their terms do not embrace the Sovereign, unless the Sovereign is specifically mentioned. The Republic of the Phil. as a sovereign cannot be covered by a general term like "employer" unless the language used in the law is clear and specific to that effect. ISSUE 2: May government employees act through a labor federation which uses the collective bargaining power to secure increased compensation for its members? HELD: NO. The terms and conditions of employment in the Government including any political subdivision or instrumentality thereof are governed by law. And this is effected through statutes or administrative circulars, rules and regulations and not through Collective Bargaining agreements. Under the present constitution, (1973), GOCC's are now part of the civil service, thus, not allowed to use concerted activities to get other benefits or higher salaries different from that provided by law and regulation

Art 277 (c) Any employee (private sector) shall be considered as an employee for purposes of membership an any labor union What if you are a probationary employee? Anser:No, Art 277 (c) not the only applicable provision. It must be the proper union, else, one cannot demand membership. i.e. A union of only regular employees.

Article 276. Government employees. The terms and conditions of employment of all government employees, including employees of government-owned and controlled corporations, shall be governed by the Civil Service Law, rules and regulations. Their salaries shall be standardized by the National Assembly as provided for in the new constitution. However, there shall be no reduction of existing wages, benefits and other terms and conditions of employment being enjoyed by them at the time of the adoption of this Code. ART. 234-A. Chartering and Creation of a Local Chapter. - A duly registered federation or national union may directly create a local chapter by issuing a charter certificate indicating the establishment of the local chapter. The chapter shall acquire legal personality only for purposes of filing a petition for certification election from the date it was issued a charter certificate. The chapter shall be entitled to all other rights and privileges of a legitimate labor organization only upon the submission of the following documents in addition to its charter certificate: (a) The names of the chapter's officers, their addresses, and the principal office of the chapter; and (b) The chapter's constitution and by-laws: Provided, That where the chapter's constitution and by-laws are the same as that of the federation or the national union, this fact shall be indicated accordingly. The additional supporting requirements shall be certified under oath by the secretary or treasurer of the chapter and attested by its president. Art 212 (e) - "Employer" includes any person acting in the interest of an employer, directly or indirectly. The term shall not include any labor organization or any of its officers or agents except when acting as employer. (Manager/officer of a juridical entity) RA 6715 Section 18. Article 245 of the same Code, as amended, is hereby further amended to read as follows: "Article 245. Ineligibility of managerial employees to join any labor organization; right of supervisory employees. - Managerial employees are not eligible to join, assist or form any labor organization. Supervisory employees shall not be eligible for membership in a labor organization of the rank-and-file employees but may join, assist or form separate labor organizations of their own." (March 15, 1989) RA 9481 SEC. 8. Article 245 of the Labor Code is hereby amended to read as follows: "ART. 245. Ineligibility of Managerial Employees to Join any Labor Organization; Right of Supervisory Employees. - Managerial employees are not eligible to join, assist or form any labor organization. Supervisory employees shall not be eligible for membership in the collective bargaining unit of the rank-and-file employees but may join, assist or form separate collective bargaining units and/or legitimate labor organizations of their own. The rank and file union and the supervisors' union operating within the same establishment may join the same federation or national union." (June 14, 2007) Note: Supervisory employees can now affiliate with a labor federation with rank and file affiliates under RA 9481which right was not previously allowed. What constitutes a Labor Organization? Art 212 (g) - "Labor organization" means any union or association of employees which exists in whole or in part for the purpose of collective bargaining or of dealing with employers concerning terms and conditions of employment. (PD 442)

What is the Right of Self-Organization? Art 243 - Coverage and employees' right to self-organization. All persons employed in commercial, industrial and agricultural enterprises and in religious, charitable, medical or educational institutions whether operating for profit or not, shall have the right to self-organization and to form, join or assist labor organizations of their own choosing for purposes of collective bargaining. (Note: This is the first sentence only of Art 243) What if is any other organization (besides collective bargaining)? Quite alright as long as purpose is lawful. Art 243 par 2 - Ambulant, intermittent and itinerant workers, self-employed people, rural workers and those without any definite employers may form labor organizations for the purpose of enhancing and defending their interests and for their mutual aid and protection (i.e. mortuary Associations, etc.). Do you need employer-employee relationship to form a union? No. However labor organizations require employee-employer relationship. Do you need a minimum number of members in order to form a union? Book V of the Labor Code does not require a minimum number of members to form a union. i.e. One is a dental assistant as well as a receptionist at the same time. (See Art 234-A) Affiliation of a local by a federation now allowed for membership of a unionyes, even with a single member. *A Labor Organization is the only organization/union allowed by law to enter into collective bargaining. Unions on the other hand are generic in nature. Who are those prohibited from joining a labor organization? Managerial employees Why? Conflict of Interest, they are pseudo-employers, acting for and in behalf of the employer. Confidential Employees their function is to protect and safeguard the interests of the employer, also, the Doctrine of necessary Implication. June 15, 2011 Managerial Prohibited from joining a union(Conflict of Interest) Private Sector (Kinds of Employees) Supervisory Confidential Rank and File See Managerial. Maintains and Limited Rights Union Enjoys full security of the safeguards employer related among supervisors only information, knowledge, peculiar to the right to self-organization
employer that can be used in bargaining situations

Also: Single Employee Workplace by affiliating with a labor federation, which in turn bargains for the single employee. i.e. Association of Private Nurses of the Philippines for receptionist/dental assistant, bargaining for pay, hours of work, leave benefits, etc. Aliens those with Work permit plus Visa: can form or join a union provided that there must be reciprocity that the home nation of the alien also provides Filipinos working there such right to join a labor organization or union in that country.

The list above is exclusive and those not found cannot join a union. What about the nephew of the employer, is there not conflict of interest? You cannot deny union membership by reason of relationship to the employer, such is not provided under the lawto all intents and purposes, the nephew is a rank and file employee. *Security Guards may now join labor organizations Public Sector (Employees prohibited from joining employee organizations/unions) High Level Employees equivalent to managerial employees in the private sector Highly Technical Employees equivalent to confidential employees The following employee classes belong to an organization that does not need any other organization to mediate for their respective organizations. (Loyalty presumed at 100%, also, arms may be used in the negotiation process) Officers/members of AFP Officers/members of PNP Jail Guards Art XIII Sec 3 The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth. Note: The right to collective bargaining and are 2 distinct rights SSS case: Collective negotiation agreement, because they cannot enter into a CBA is declared by the SC as epic fail. They are impugning the prerogative of Congress for direct appropriation. Even signing bonus needs a law and is not the prerogative of SSS personnel (needs an Appropriations Act). Note: Negotiations are allowed except those pecuniary in character which is the realm of collective bargaining. Hence, negotiation for Athletic day, Intramurals, etc. are allowed. Terminologies Labor Organization (Art 212) for Collective Bargaining in the private sector Employees organization for Negotiation in the public sector

A Labor Organization when registered with the DOLE, particularly with the Bureau of Labor Relations is called a Legitimate Labor Organization. An employee organization when registered with the DOLE and the Civil Service Commission is called a Legitimate Employee Organization. Legitimate Labor Organizations can file a Petition for Certification Election. In the private sector, the winner of the Certification Election is then termed of as the Exclusive Bargaining Agent. In the public sector, if there is a single employee organization (if there is no other), it is termed as the Sole Exclusive Representative. If there are others, then the winner of an election would be termed of as the Sole Exclusive Representative. Kinds of Labor Organizations 1.) Independent Unions A union on the level of the workplace (see Art 234). It goes through the long process of registration: a.) meeting b.) attendance c.) constitution and bylaws d.) list of votes plus voters e.) file application at the Bureau of Labor Relations f.) when approved, certificate of registration issued 2.) Affiliate Union (see IRR Book 5, Rule 1, Sec 1) An independent union that subsequently becomes a local of a federation. Two certificates of registration 3.) Local/Chapter (see 234-A) 2 stages of registration: a.) Issuance of chapter certificate creates provisional personality and entitles chapter to file petition for certification election. See * b.) Submits following documents along with the petition for certification election i. Name of chapter, officers, and addresses ii. Constitution and bylaws or a joint affidavit that constitution and bylaws is the same as that of the federation 4.) Federation/National Union An aggregation of local or independent unions or both, with at least 10 locals or affiliates that are the exclusive bargaining agent of their workplace. If below 10, (add) 5.) Labor Center An aggregation of federation and national unions and independent unions i.e. TUCP, Trade Union Congress of the Phils. (What about KMU? It is multi-sectoral, hence, not a labor organization. It cannot be registered and many members do not have employer-employee relationships.) *Art 234-A Chartering 1.) Go to Federation and ask to be a Chapter. 2.) Federation issues a chapter certificate. (now considered a Local/Chapter) 3.) Can now file a petition for certification election 4.) Issued certificate by BoL, submit CBL or execute joint affidavit that CBL same as the federation 3 grounds for the Cancellation of Certification of Labor Organization Misrepresentation o Fraud in the submission of minutes or in the CBL o Fraud in the election of officers o 2/3 of member vote to cancel or revoke registration

June 16, 2011 Department Order 40-03 Feb, 2003 (Effective Mar. 15, 2003) Implementing Rules of Book 5 of the Labor Code > promulgated by individuals. Rule 1 Sec1. Title. These Rules shall be referred to as the "Rules to Implement the Labor Code." (The correct title as contrast to that in the codal version) Book 5 Rule 1 Sec 1. Definition of terms: (h) "Local Union" means any labor organization operating at the enterprise level. (Contrast this with affiliate, that is, Sec 234 and Sec 234 A of RA 9481) It is a chartered local at the enterprise or workplace level. *Affiliate An independent union which was subsequently affiliated by a federation or national union.
"ART. 234. Requirements of Registration. - A federation, national union or industry or trade union center or an independent union shall acquire legal personality and shall be entitled to the rights and privileges granted by law to legitimate labor organizations upon issuance of the certificate of registration based on the following requirements: (a) Fifty pesos (P50.00) registration fee; (b) The names of its officers, their addresses, the principal address of the labor organization, the minutes of the organizational meetings and the list of the workers who participated in such meetings; (c) In case the applicant is an independent union, the names of all its members comprising at least twenty percent (20%) of all the employees in the bargaining unit where it seeks to operate; (d) If the applicant union has been in existence for one or more years, copies of its annual financial reports; and (e) Four copies of the constitution and by-laws of the applicant union, minutes of its adoption or ratification, and the list of the members who participated in it." ART. 234-A. Chartering and Creation of a Local Chapter. - A duly registered federation or national union may directly create a local chapter by issuing a charter certificate indicating the establishment of the local chapter. The chapter shall acquire legal personality only for purposes of filing a petition for certification election from the date it was issued a charter certificate. The chapter shall be entitled to all other rights and privileges of a legitimate labor organization only upon the submission of the following documents in addition to its charter certificate: (a) The names of the chapter's officers, their addresses, and the principal office of the chapter; and (b) The chapter's constitution and by-laws: Provided, That where the chapter's constitution and by-laws are the same as that of the federation or the national union, this fact shall be indicated accordingly.

Registration of local is a one step process, immediately acquiring full personality to: file petition for certification election; or to have the rights of a legitimate labor organization (see Art 242 below). What are the rights of a Legitimate Labor Organization? Article 242. Rights of legitimate labor organizations. A legitimate labor organization shall have the right:

These are the rights of a legitimate labor organization, and not merely labor organization, the keyword is: registration *growls*. Also, LLOs are not an exclusive bargaining agent, and hence cannot enter into collective bargaining.

(a) To act as the representative of its members for the purpose of collective bargaining; (b) To be certified as the exclusive representative of all the employees in an appropriate collective bargaining unit for purposes of collective bargaining;
- must be elected by the majority

(c) To be furnished by the employer, upon written request, with his annual audited financial statements, including the balance sheet and the profit and loss statement, within thirty (30) calendar days from the date of receipt of the request, after the union has been duly recognized by the employer or certified as the sole and exclusive bargaining representative of the employees in the bargaining unit, or within sixty (60) calendar days before the expiration of the existing collective bargaining agreement, or during the collective bargaining negotiation.
-must be an exclusive bargaining agent

(d) To own property, real or personal, for the use and benefit of the labor organization and its members;
-an inherent right: it is part and parcel of the definition of a personthat is, one subject of rights and obligations (Civil law)

(e) To sue and be sued in its registered name; and

-also an inherent right

(f) To undertake all other activities designed to benefit the organization and its members, including cooperative, housing welfare and other projects not contrary to law. Notwithstanding any provision of a general or special law to the contrary, the income, and the properties of legitimate labor organizations, including grants, endowments, gifts, donations and contributions they may receive from fraternal and similar organizations, local or foreign, which are actually, directly and exclusively used for their lawful purposes, shall be free from taxes, duties, and other assessments. The exemptions provided herein may be withdrawn only by a special law expressly repealing this provision. (As amended by RA 6715)
-the union is exempt from these taxes: a) Income tax b) Real property tax (LGC) c) Gift tax (grants, endowments) d) Duties and other assessments (Tariff and Customs Code) -this exemption may only be removed by a special law expressly repealing this provision -the statutory construction of this last paragraph is the construction applied in the National Revenue Code. -Only those (monies) which are directly and exclusively used for the lawful purpose of the union are exempted. Hence, the union engaging in business is not exempted. -includes exemption form assessments

June 17, 2011 One of the rights of a legitimate labor organization (see Art 234-A) is to file a complaint for or on behalf of its members. The Labor Code, as contrast to the Civil Code, does not follow the rules on substitution of parties, i.e. in case of death, the cause of action survives. Hence, a complaint for money claims filed by the union on behalf of its member survives even if the unions registration is later cancelled with finality during the pendency of such money claim. Whatever benefit is granted shall redound to all union members similarly situated. What are the Grounds for Cancellation of Union Registration? 1.) Misrepresentation of fraud in the ratification of the unions constitution and by laws as well as in the members who took part.

2.) Misrepresentation of false statements or fraud in the election of officers as well as in the list of officers (submitted). 3.) Voluntary dissolution by the members of the union, where the members ask the officers for a call to disband the union, garnering 2/3 votes. Why has it been reduced to just these three? -Because canceling the unions registration penalizes everybody. In the case of Paflu vs Secretary, the SC stated that failure to file documentary requirements does not curtail the right of freedom of association. The reason is that the government requires registration as a condition sine qua non for the labor organization to have legal personality and its accompanying rights and obligations. Such rights are statutorily granted and are not granted by the Constitution. The purpose of registration is to protect the public from fraudulent acts or misrepresentation i.e. as agents of the union. Such requirement of registration is a valid exercise of police power. Why cant cooperatives be compelled to file audited financial statements? -Because the purpose of workers associations as wells as cooperatives are not to enter into collective bargaining but for mutual aid or support. They are also ot allowed to file petition for certification election (Victorianico vs. Elisalde Workers Assn.) Union is a generic term and may be a: workers association, employee association, or a labor organization. (The latter when registered becomes a legitimate labor organization, and when the winner of a petition for certification election, becomes the exclusive bargaining agent. June 22, 2011 Who maintains the registry of labor organizations? labor organizations (private sector) > Bureau of Labor Relations -employee organizations (public sector) > Civil Service Commission, Bureau of Labor Relations, What if the labor organization fail to file reportorial requirements? -BOLR sends notice and the list of documents necessary -if no response in 30 days, BOLR would post the LO as a non-existing organization in the DOLE website -after 30 days, Remove the LO from the roster of labor organizations. This is termed as a de facto dissolution of a labor organization > over and above the 3 grounds for the cancellation of registration of a labor organization. (Not cancellation but an acceptance of a labor organizations demise. Article 241. Rights and conditions of membership in a labor organization. The following are the rights and conditions of membership in a labor organization: (a) No arbitrary or excessive initiation fees shall be required of the members of a legitimate labor organization nor shall arbitrary, excessive or oppressive fine and forfeiture be imposed
When there is a violation of the rights of membership, such cause of action, an intra-union dispute, must be filed with the Med Arbiter of the Bureau of Labor Relations of the DOLE. Provided, that all internal modes of dispute relation within the union has been exhausted.

(b) The members shall be entitled to full and detailed reports from their officers and representatives of all financial transactions as provided for in the constitution and by-laws of the organization; lawphi1.net

(c) The members shall directly elect their officers in the local union, as well as their national officers in the national union or federation to which they or their local union is affiliated, by secret ballot at intervals of five (5) years. No qualification requirement for candidacy to any position shall be imposed other than membership in good standing in subject labor organization. The secretary or any other responsible union officer shall furnish the Secretary of Labor and Employment with a list of the newly-elected officers, together with the appointive officers or agents who are entrusted with the handling of funds within thirty (30) calendar days after the election of officers or from the occurrence of any change in the list of officers of the labor organization. (As amended by RA 6715);
-no need for qualifications but see Art 241-f for disqualifications (i.e. involves moral turpitude)

(d) The members shall determine by secret ballot, after due deliberation, any question of major policy affecting the entire membership of the organization, unless the nature of the organization or force majeure renders such secret balloting impractical, in which case the board of directors of the organization may make the decision in behalf of the general membership.
-union dues are usually a percentage of gross salary. Strikes require vote by secret ballot as this affects the entire membership.

June 23, 2011 When there is a violation of the rights of membership, such cause of action, an intra-union dispute, must be filed with the Med Arbiter of the Bureau of Labor Relations of the DOLE. Provided, that all internal modes of dispute relation within the union has been exhausted. (h) Every payment of fees, dues or other contributions by a member shall be evidenced by a receipt signed by the officer or agent making the collection and entered into the record of the organization to be kept and maintained for the purpose;
-every expense must have a receipt

(i) The funds of the organization shall not be applied for any purpose or object other than those expressly provided by its constitution and by-laws or those expressly authorized by written resolution adopted by the majority of the members at a general meeting duly called for the purpose;
-just ordinary majority [quorum] i.e. for a 100 member union, 50% +1 must be present, and a 50% +1 votes required. Hence, minimum of 26 votes -this is the bookkeeping rule

Note: RA 6715 "(j) Every income or revenue of the organization shall be evidenced by a record showing its source, and every expenditure of its funds shall be evidenced by a receipt from the person to whom the payment is made, which shall state the date, place and purpose of such payment. Such record or receipt shall form part of the financial records of the organization. "Any action involving the funds of the organization shall prescribe after three (3) years from the date of submission of the annual financial report to the Department of Labor and Employment or from the date the same should have been submitted as required by law, whichever comes earlier: Provided, That this provision shall apply only to a legitimate labor organization which has submitted the financial report requirements under this Code: Provided, further, That failure of any labor organization to comply with the periodic financial reports required by law and such rules and regulations promulgated thereunder six (6) months after the effectivity of this Act shall automatically result in the cancellation of union registration of such labor organization. (Now not a ground for cancellation or registration, see below).
RA 9841 SEC. 7. A new provision, Article 242-A is hereby inserted into the Labor Code to read as follows:

"ART. 242-A. Reportorial Requirements. - The following are documents required to be submitted to the Bureau by the legitimate labor organization concerned: (a) Its constitution and by-laws, or amendments thereto, the minutes of ratification, and the list of members who took part in the ratification of the constitution and by-laws within thirty (30) days from adoption or ratification of the constitution and by-lam or amendments thereto; (b) Its list of officers, minutes of the election of officers, and list of voters within thirty (30) days from election; (c) Its annual financial report within thirty (30) days after the close of every fiscal year; and (d) Its list of members at least once a year or whenever required by the Bureau. Failure to comply with the above requirements shall not be a ground for cancellation of union registration but shall subject the erring officers or members to suspension, expulsion from membership, or any appropriate penalty."

(k) The officers of any labor organization shall not be paid any compensation other than the salaries and expenses due to their positions as specifically provided for in its constitution and by-laws or in a written resolution duly authorized by a majority of all the members at a general membership meeting duly called for the purpose. The minutes of the meeting and the list of participants and ballots cast shall be subject to inspection by the Secretary of Labor and Employment or his duly authorized representatives. Any irregularities in the approval of the resolutions shall be a ground for impeachment or expulsion from the organization;
-how union officers are paid -Secretary of Labor has visitorial powers as long as union office is open and can examine the records of a union anytime. -general rule: union officers are not paid; only expenses or per diems (by the day).

(l) The treasurer of any labor organization and every officer thereof who is responsible for the accounts of such organization or for the collection, management, disbursement, custody or control of the funds, moneys and other properties of the organization, shall render to the organization and to its members a true and correct account of all moneys received and paid by him since he assumed office or since the last date on which he rendered such account and of the balance remaining in his hands at the time of rendering such account, and of all bonds, securities and other properties of the organization entrusted to his custody or under his control. The rendering of such account shall be made. (1) At least once a year within thirty (30) days after the close of its fiscal year; (2) At such other times as may be required by a resolution of the majority of the members of the organization; and (3) Upon vacating his office. The account shall be duly audited and verified by affidavit and a copy thereof shall be furnished the Secretary of Labor and Employment;
-fiscal year means 12 consecutive months as indicated in the CBL of the organization i.e. ADDU FY June 1-May 31

(m) The books of accounts and other records of the financial activities of any labor organization shall be opened to inspection by any officer or member thereof during office hours;
-right of the members to inspect the union books (illiterates may bring a literate representative)

(n) No special assessment or other extraordinary fees may be levied upon the members of a labor organization unless authorized by a written resolution of a majority of all the members at a general membership meeting duly called for the purpose. The secretary of the organization shall record the minutes of the meeting including the list of all members present, the votes cast, the purpose of the special assessment or fees and the recipient of such assessment or fees. The record shall be attested to by the president;

-absolute majority, read together with Art 241 (o). This special assessment is not in the CBL or previously agreed upon. If
approved, becomes a union obligation and Art 241 (o) states requires individual authorization.

(o) Other than for mandatory activities under the Code, no special assessment, attorney's fees, negotiation fees or any other extraordinary fees may be checked off from any amount due an employee without an individual written authorization duly signed by the employee. The authorization should specifically state the amount, purpose and beneficiary of the deduction; June 30, 2011 Art 241 (m) (n) (o) must be taken together Ordinary assessment voted by general membership Extraordinary/special assessment requires general majority + individual authorization (ABSCBN vs ABS CBN Supervisors Union) In Civil Law, the general rule is, an organization can only represent its members. A member has the right not to join. Representation is based on trust and confidence between the principal and the agent (agency). The union can negotiate its union dues, but when the union extracts money forcibly i.e. for negotiation fees, may the union subtract directly from the income of the employee? No, there must first be individual authorization. Only the income of those who authorized may be extracted. (The union represents employees, as well as the bargaining unit, even non-union members, for 5 years from the time of the certification election.) The mandatory activities stated in Art 241 (o) does not need individual authorization.i.e. labor relations seminars. Right to Self Organization The right to self-organization is exercised by individual employees and unions.
Article 211. ((b) To promote free trade unionism as an instrument for the enhancement of democracy and the promotion of social justice and development;

(The juridical personality of a labor organization is separate from its individual members.) What is free trade unionism? The union has the freedom to establish or determine its policies free from pressure from the government, capital, or any other third party, to establish its criteria for membership/ Can a union say no to a prospective member?
Art 277 (c) Any employee, whether employed for a definite period or not, shall, beginning on his first day of service, be considered an employee for purposes of membership in any labor union.

Every employee is eligible for membership on his first day of work. A union may have 2 personalities, one in the SEC (for business ventures) and one in the DOLE. What if there are 2 different set of officers in the SEC and the DOLE registration? As far as collective bargaining is concerned, the Department of Labor only recognizes the officers in compliance with the Rules and does not recognize bona fide officers recognized by the Corporation Code. July 1, 2011 What is a Petition for Certification Election?

 a petition to conduct an election which determines w/n employees want representation and, what union to represent them. It is a fact-finding proceeding Note: The right of Self-Association also includes the right not to join an association. *Certification election is not an adversarial proceeding hence titles are > in re petition for CE among the (bargaining unit described) i.e. rank and file employees of XYZ company. Note: The union does not represent the employees in general but only the employees in the bargaining unit concerned. IRR Book 1 Rule Sec 1 (x) "Certification Election" means the process of determining, through secret ballot, the sole and exclusive bargaining agent of the employees in an appropriate bargaining unit, for purposes of collective bargaining. Why does it need certification? -the fact of certification is binding on the whole worldthe sole bargaining representative for 5 years. What is a consent election? (y) "Consent Election" means the election voluntarily agreed upon by the parties to determine the issue of majority representation of all the workers in the appropriate collective bargaining unit. Basic stages of a consent election: -determine the appropriateness of the bargaining unit (define its parameters) -inclusion/exclusion proceedings -actual election A consent election means that all parties agree to an election and that the bargaining unit is appropriate. The Med Arbiter has a wide discretion in determining the appropriateness of the bargaining unit. Under RA 9481, the employer is a bystander in a certification election, but the employer has a first hand interest in the appropriateness of the bargaining unit (i.e. multiplicity of bargaining unit) and is entitled to receive a copy of the petition. 2 instances where the employer can intervene 1.) the appropriateness of the bargaining unit; or, 2.) the petition for certification election is barred by an existing CBA Note: the Med Arbiter must act, else, liable for grave abuse of discretion. RA 9481 SEC. 9. "ART. 245-A. Effect of Inclusion as Members of Employees Outside the Bargaining Unit. - The inclusion as union members of employees outside the bargaining unit shall not be a ground for the cancellation of the registration of the union. Said employees are automatically deemed removed from the list of membership of said union."

Note: Such members are not covered by the CBA but the union can retain them as members i.e. bargaining unit of daily paid workers but accepts probationary workers as members. One must belong to the bargaining unit to be eligible for collective bargaining; else, one is excluded from the certification election. When the employer and employees agree, the med arbiter orders and incorporates such agreement and sets the date for the certification election. Note: the one who filed the petition is called the petitioner and other unions who may join the certification election are called intervenors. Forced Intervenor - the incumbent exclusive bargaining agent. Note: Petitions for certification election are entertained 60 days prior to the expiration of a current CBA. If none will file such petition, then the employer recognizes the incumbent collective bargaining agreement for another 5 years. Note: Only a legitimate labor organization can file a petition for certification election. If the federation files for the local, there is no obligation to reveal the members of the local/chapter to avoid persecution by the employer/

What is automatic certification election? There is no existing organized bargaining unit. When it is unorganized, or organized by signature support of 25% of all members of the bargaining unit, there is automatic certification election. The med arbiter has no discretion and has to approve the certification election. July 6, 2011 Even if there is a pending petition for the cancellation of registration, it does not suspend an ongoing petition for certification election. Art 245-A (see above) - The inclusion as union members of employees outside the bargaining unit shall not be a ground for the cancellation of the registration of the union. Note: Inclusion of supervisors in a rank and file union is prohibited. They are deemed excluded from the collective bargaining. Revised Rules of the NLRC Union officers can represent their members even if non-lawyers. E.O. 180 If there is only one union and it is not challenged, the presumption is, it is the representative of the employee bargaining unit, otherwise known as direct recognition or direct certification. Note: The law does not look with favor on voluntary organization. Even if there is a single union, a petition for certification election is still the best way to ascertain the will of the employees. Bargaining history Only a substantially compelling supervening fact changes the established bargaining unit as to its appropriateness in its organization. i.e. San Miguel distribution scheme vs. guerilla distribution of Beer na Beer. Globe Doctrine It is the will of the workers provided that there are several crafts and there is one dominant craft wanting to secede from the general bargaining unit.

Note: bargaining units have no personality, only the union has one. Commonality of Interest there must be a chance to influence each other (social intercourse) to have a common interest to fight for. Hence, different statuses of workers do not make up a homogenous group and has no commonality of interest. July 7, 2011 What us the labor organization called when it is certified as the bargaining unit? - several names, but the real name used by the SC in labor cases till the 1950s is Exclusive Bargaining Agent. - In the public sector, it is termed of as Accredited Labor Organization. A bargaining unit is an aggregation of warm bodies holding positions i.e. machinists, warehousemen. Who determines the bargaining unit? -the fiat of the state > that which is deemed appropriate. Where does it appear? 3 instances: (IRR of PD 442) 1.) Described in the petition for CE (Rule 8 Sec 4 (c)) 2.) Order of the Petition for CE Rule 8 Sec 13 (c) 3.) Rule 9 sec 20 Which among the 3 above is valid? Rule 8 sec 13 because you will extract the number of votes (extraction proceedings). The med arbiter compares the 2 lists; one submitted by the management and the one submitted by the union to determine the votes who will participate in the certification election. (Such would depend on the description of the bargaining unit. How do you reconcile who should or should not be there? Rule 8 Sec 13 Employer is directed to submit the payroll records 3 months prior to the issuance of the order to determine the list of valid voters. Nature of bargaining unit-exclusive bargaining agent relationship 1.) The bargaining unit is the principal while the exclusive bargaining agent is the agent. 2.) The BU is the beneficiary while the EBA is the negotiator 3.) The BU is the obligor while the EBA is the adjuster As to determination: The bargaining unit is proposed by the union, agreed upon by the management, given imprimatur by the State (State issues fiat as to the appropriateness of the bargaining unit through the med arbiter.) Is one a member of the bargaining unit? No, as it is not an organization. When the petition is filed it may come from an organized or unorganized establishment (misnomer, should be bargaining unit). If there is no existing CBA or EBA, then there is no certification election for 1 year. i.e. XYZ Corp there is already a union for rank and file, daily, white collar, monthly workers, but none for supervisory employees and the latter files a petition for CE. Such petition comes from an unorganized

establishment and applies the policy of automatic certification election (see above). The certification election is automatically conducted upon filing of the petition (Art 257). SEC. 11. Article 257 of the Labor Code is hereby amended to read as follows: "ART. 257. Petitions in Unorganized Establishments. - In any establishment where there is no certified bargaining agent, a certification election shall automatically be conducted by the Med-Arbiter upon the filing of a petition by any legitimate labor organization, including a national union or federation which has already issued a charter certificate to its 1ocal/chapter participating in the certification election or a local/chapter which has been issued a charter certificate by the national union or federation. In cases where the petition was filed by a national union or federation, it shall not be required to disclose the names of the local chapter's officers and members." (As amended by RA 9481) Is it still a policy to grant automatically even without signature support? Yes. Article 256. Representation issue in organized establishments. In organized establishments, when a verified petition questioning the majority status of the incumbent bargaining agent is filed before the Department of Labor and Employment within the sixty-day period before the expiration of a collective bargaining agreement, the Med-Arbiter shall automatically order an election by secret ballot when the verified petition is supported by the written consent of at least twenty-five percent (25%) of all the employees in the appropriate bargaining unit. To have a valid election, at least a majority of all eligible voters in the unit must have cast their votes. The labor union receiving the majority of the valid votes cast shall be certified as the exclusive bargaining agent of all the workers in the unit. When an election which provides for three or more choices results in no choice receiving a majority of the valid votes cast, a run-off election shall be conducted between the labor unions receiving the two highest number of votes: Provided, That the total number of votes for all contending unions is at least fifty percent (50%) of the number of votes cast. At the expiration of the freedom period, the employer shall continue to recognize the majority status of the incumbent bargaining agent where no petition for certification is filed. (As amended by RA 6715) What is a run-off election? Book V Rule 1 Sec 1 (z) "Run-Off" refers to an election between the labor unions receiving the two (2) higher number of voters when a certification election which provides for three (3) or more choices results in no choice receiving a majority of the valid votes cast, where the total number of votes for all contending unions is at least fifty percent (50%) of the number of votes cast. Protest in Election Proceedings How do you Protest? -Make an oral challenge -Protest recorded in election proceeding minutes -reduced in writing within 3 days after close of election proceedings Note: Challenged votes should be segregated. If the winning margin is so great that even the challenged votes cannot mathematically compete, the challenged votes are no longer necessary

When not to file petition for certification election? 1.) When certification year rule applies this is for unorganized establishments 2.) When the deadlock bar rule applies 3.) When the contract bar rule applies Certification Year Rule No petition for certification election can be attained when there has been a certification election within 1 year. The period tolls from the date the results of the certification election are announced. Rationale: 1 year is enough time to perfect a collective bargaining agreement What if no union won in the certification election? There is still the 1 year bar as management should be given a respite to attend to legitimate business interests, as such is disturbed by the rivalries of election fever during a certification election. If 1 union wins then there already an organized establishment, (rule does not apply), as an unorganized establishment may file a petition for certification election anytime unless the certification year rule applies. Deadlock Rule when there is an empasse in the negotiation in the collective bargaining. (Devine Word University of Tacloban vs. Sec of Labor) RA 875 or the Industrial Peace Act provides that the deadlock rule must be raised after voluntary or compulsory arbitration. When the union is forced to declare a strike notice, there is automatic mediation either by the Secretary of Labor or the parties submit to voluntary arbitration. Rationale: It is very easy for the management to contact another union. (Rule XII Sec 3) Contract Bar Rule The contract itself bars a certification election. No petition for certification election may be filed within the last 60 days of the contract, by the end of the 5th year. What if the contract was not registered? Can it be a bar for the petition for CE? It depends. If sweetheart CBA, or a CBA that does not afford substantial benefits, just labor standard benefits, then it does not bar the petition for certification election. But, even if unregistered, but the CBA grants substantial benefits and such has been going on for a long time i.e. 1 year, then, it bars the petition for certification election. Samahan ng Manggagawa case NFL files petition for CE > CE held > NFL lost > filed after 1 year > Management moved for dismissal: grounds; CBA with another union already, voluntary recognized, (see IRR on voluntary recognition) > Med Arbiter held petition is barred as contract bar rule applies > Sec of Labor and CA affirmed > SC held: It boggles the mind; rejects the union as there is a new union with CBA less than a year after-unconscionable, voluntary recognition removed. No bar for petition for certification election. A premature CBA is not a bar for a petition for certification election. Note: A CBA between the management and an incumbent union is to be applied after the last of 5 years (dovetail the old one). RA 6715 or the Herrera-Veloso Rule > No signature support required for unorganized establishments.

o Rationale: Management will know union supporters.