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DUTY TO BARGAIN CLAUSES

First: Article 261 is, to put it kindly, is a surplusage.


Art 261 (251). Duty to bargain collectively in
the
absence of CBA. In the absence of an
agreement or other voluntary arrangement
providing for a more expeditious manner of
collective bargaining, it shall be the duty of
the employer and the representatives of the
employees to bargain collectively in
accordance with the provisions of this Code.
It does not say anything. It just says you you bargain in accordance with the Labor
Code. How else are you going to bargain? In accordance with the Corporation
Code? You have to bargain in accordance with the LAbor Code.
Second:
Art 262 (252). Meaning of duty to bargain
collectively.
The duty to bargain collectively means the
performance of a mutual obligation to meet
and convene promptly and expeditiously in
good faith for the purpose of negotiating an
agreement with respect to wages, hours of
work and all other terms and conditions of
employment including proposals for
adjusting any grievances or questions
arising under such agreement and
executing a contract incorporating such
agreements if requested by either party but
such duty does not compel any party to
agree to a proposal or to make any
concession.
When is it applicable? It does not say. The provision before this say, the duty to
bargain collectively in the absence of collective bargaining agreements.
When there is no CBA, you bargain in accordance with the LAbor code. Suppose
there is already a CBA, do yo bargain not in accordance with the Labor Code? It is
submitted that this provision applies to the NEGOTIATION PHASE of the bargaining
process.
Three Stages of the bargaining process:
1. Negotiation Stage- this presupposes that you already have an Exclusive
Bargaining agent either by voluntary recognition/direct certification, or by
Certification Election. The shortest period for negotiation is ONE YEAR because the
EBA has one year to conclude the CBA and all the other unions all over the world
cannot file a certification election. Why do I say that it is the shortest period?
Because if there is a deadlock, they cannot go ahead with the collective
bargaining and they have to submit it either to voluntary arbitration or
compulsory arbitration. Then, the prohibition against filing a Certification Election
is extended. That is called the DEADLOCK BAR RULE.
2. Administration Stage- there is already a CBA. You are administering it.

3. Renegotiation Stage/ Phase


DEADLOCK BAR RULE. This time, the negotiation is brought to a forum and the
forum decides the deadlock. So it could last up to 10 years or 15 years.
I hate to confuse you but there is another rule when you cannot file a certification
a certification election. It is not mentioned in the Labor Code. All the
commentators want to forget the rule but it exists. I call that rule the JOSEPH
ESTRADA RULE. In one case, Joseph Estrada called all the employers and
employees, and they said the present collective bargaining agreement will stay
for 10 years and there will be no certification election. When you have time, read
the case. Nobody refers to it.
Article 262 refers to the duty to bargain during the negotiation phase. There are 3
POSITIVE DUTIES and 2 NEGATIVE.
FIVE DUTIES OF COLLECTIVE BARGAINING
POSITIVE DUTIES:
1. to meet and convene promptly and expeditiously
2. In good faith
3. For the purpose of the CBA ( negotiating an agreement with respect to wages,
hours of work and all other terms and conditions of employment including
proposals for adjusting any grievances or questions arising under such agreement
and executing a contract incorporating such agreements if requested by either
party
NEGATIVE DUTIES:
4. the duty does not compel any party to agree to a proposal
5. It does not compel any party to make any concessions
MEMORIZE THAT. All the technical terms. The FIVE DUTIES OF COLLECTIVE
BARGANING.
Cases of UNLAWFUL or ILLEGAL BARGAINING or what they call BAD FAITH
BARGAINING:
To meet promptly and expeditiously, that is behavioral, very easy to determine. IF
you do not show up, you violated the duty to bargain. But when does the duty to
bargain begin? The duty to bargain begins as defined by the Supreme Court in the
celebrated case of Kiok Loy vs NLRC, the duty to bargain begins when you have
reduced to writing your proposals, you have submitted your proposals to the
management, you are the majority representation of the bargaining unit, and you
have in your possession proof of majority registration.
This Kiok Loy pronouncement was reiterated in General Milling vs CA.
From 2015 TSN:
The SC said the duty to bargain begins when
the exclusive
bargaining agent presents a bargaining
proposal and the
exclusive bargaining agent has proof of
majority
representation.
Three elements:

1. The union is the exclusive bargaining


agent;
2. It has submitted in writing bargaining
proposals; and
3. The union is in possession of majority
representation status
Let me bring to your attention Article 250. (feel nako 242 iya gimean)
Article 250( C ) Why is it important as regards the exception to the duty to
bargain. It states that:
Art. 242. Rights of legitimate labor organizations. A legitimate labor organization
shall have the right:
Xxxxx
C. To be furnished by the employer, upon written request, with its annual audited
financial statements, including the balance sheet and the profit and loss
statement, within thirty (30) calendar days from the date of receipt of the request,
after the union has been duly recognized by the employer or certified as the sole
and exclusive bargaining representative of the employees in the bargaining unit,
or within sixty (60) calendar days before the expiration of the existing collective
bargaining agreement, or during the collective bargaining negotiation;
Xxxxx
Is it not the beginning of the collective bargaining? The moment there is an
exclusive bargaining agent? Nakalimot ang Supreme Court ini. Still, General
Milliing case, the SC reiterated the ruling in Kiok Loy. The Kiok Loy decision was
before the amendment here. This was introduced by RA 6715, The Herrera-Veloso
Law which was enacted before the Kiok Loy case. RA 6715 became effective on
March 16, 1989. The Supreme Court said in the Kiok Loy case that there is already
an exclusive bargaining agent, the Med Arbiter already declared them as the
winner, they reduced the CBA into writing, gave it to the management. The
management just ignored it, did not confirm that they receive it and replied to it.
What should have been the duty of the management? Article 260.

Art. 250. Procedure in collective bargaining. The following


procedures shall be observed in collective bargaining:
a.

When a party desires to negotiate an agreement, it shall serve a written


notice upon the other party with a statement of its proposals. The other party
shall make a reply thereto not later than ten (10) calendar days from receipt
of such notice;
xxxx

Who is the party who desires to negotiate an agreement? It is always the union.
The company does not care, it does not desire to negotiate an agreement.
B. Should differences arise on the basis of such notice and reply, either party may
request for a conference which shall begin not later than ten (10) calendar days
from the date of request.

The period that you have to remember here is 10 DAYS. 10, 10, 10 DAYS.
C. If the dispute is not settled, the Board shall intervene upon request of either or
both parties or at its own initiative and immediately call the parties to conciliation
meetings. The Board shall have the power to issue subpoenas requiring the
attendance of the parties to such meetings. It shall be the duty of the parties to
participate fully and promptly in the conciliation meetings the Board may call;
This negotiation is so replete that the goverment is hovering over the shoulders of
the parties. When in doubt, the NCMB may come in. They want to prevent a strike.
D. During the conciliation proceedings in the Board (refers to NCMB), the parties
are prohibited from doing any act which may disrupt or impede the early
settlement of the disputes; and
E. The Board shall exert all efforts to settle disputes amicably and encourage the
parties to submit their case to a voluntary arbitrator. (As amended by Section 20,
Republic Act No. 6715, March 21, 1989)
What happens if you do not submit to Voluntary Arbitration? You may be charged
of Failure in your duty to bargain. Can that charge __stick__? It is my submission
that it does not. That is why it is not stated here as a specimen of Bad Faith
Bargaining. For example, the employer fails to show up in the conciliation
proceedings. Can they compel those present to testify? Please refer to Article 238
as renumbered.
Art. 238 (233). Privileged communication. Information and statements made
at conciliation proceedings shall be treated as privileged communication and shall
not be used as evidence in the Commission. Conciliators and similar officials shall
not testify in any court or body regarding any matters taken up at conciliation
proceedings conducted by them.
So what is the status of conciliation proceedings? PRIVILEGED. Dont forget that.
Even the Supreme Court forgets that. If fail to object on the ground that it is
privileged, you waive it.
Situation: if you fail to appear in the conciliation proceedings, and the other party
bring a case against you for bad faith bargaining, which is a species of Unfair
Labor Practice. If he brings it up, it is a mere allegation that is self-serving. So you
need evidence. How do you produce evidence? You produce the logbook of the
conciliation. Can you produce the logbook? NO, because that is PRIVILEGED. Can
you call the Conciliator to testify?No. He is prohibited from testifying. Article 238.
Philippine Airlines vs Secretary of Labor: They filed a notice of strike with the
NCMB. But the Code says, you file it with the Ministry. The Bureau of Labor IRR
says you should file it with the NCMB. When they filed it with the NCMB, it did not
consider it as a strikable issue. The NCMB considered it as among the preventive
mediation items. It is not a strike item. The SC said that there is no ground for
strike because even the NCMB classified it as non-strikable. How did it get hold of
that record when it was supposed to be privileged. Article 238 is original to the
law, it was here from the very start. It is not an amendment. How could the SC
find out that the NCMB put it there? The NCMB testified.
Alright, you present bargaining proposals. You are the representative of the
Bargaining unit, then you are in possession of proof of your status. What is your
proof of your representative status? And mga tao walay documentation, walay
evidence.

Lets go to the case of Divine Word University of Tacloban vs Torres. The


independent union of the faculty won so they are certified as the exclusive
bargaining agent. They present bargaining proposals to the university
administration. The university administration did not act on it. Three years passed
by and there was no action. Because the president of the union died. After three
years, here comes ALU who presents a new bargaining proposal. When does the
duty to bargain begin? When the party who desires to bargain submits his
proposal to bargain. He submits it to the other party. It was the representative of
the bargaining unit nga gikuyogan sa officials sa union. Unya, wala nakasubmit ug
proof of majority representation status. Wala may proof. Why? Because the
certification is for the independent union, not for the federation (ALU). The
registration of the federation is distinct from the independent union.
That is why I suggest you read the decision of Kiok Loy. Ayaw sayangi ang decision
ni Cuevas.