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Jurisdictional Requirements
1. Status of majority representation of the employees representative. 2. Proof of majority representation 3. Demand to bargain under art. 250 (a)
The duty of the employer to bargain collectively arises only after the union requests the employer to bargain. If there is no demand, the employer cannot be in default. When there is a legitimate representation issue, there is no duty to bargain collectively on the part of the employer [Lakas ng Manggagawang Makabayan v. Marcelo Enterprises, 118 SCRA 425 (1982)]
Commencement of Bargaining
During Certification Year within 12 months after the determination and certification of the employees exclusive bargaining representative
Bargaining Procedure
The parties may agree on the bargaining procedure. If there is a procedure agreed upon, the Labor Code Procedure applies suppletorily.
1. Failure or refusal to meet and convene 2. Evading the mandatory subjects of bargaining 3. Bad faith in bargaining 4. Gross violation of the CBA
Duration of CBA
Representation Aspect: 5 years Refers to the identity and majority status of the union that negotiated the CBA as the exclusive bargaining representative. 2. All other provisions should be renegotiated not later than 3 years from effectivity. Refers to the rest of CBA, economic as well as non-economic other than representational. Hold Over Principle The CBA shall be in full force and effect until the parties reach a new agreement.
Rules on Effectivity and Retroactivity of New CBA (Apply Only to Provisions Other than Representational) CBA as a Result of Negotiations
A. With Previous CBA 1. Effectivity of new CBA entered into within 6 months after the expiration of the old CBA: retroact to the date following the expiry date. 2. Effectivity of new CBA entered into after 6 months following the expiration of the old CBA: GR: effective on the date agreed upon by the parties. If there is no agreement, the arbitral award will retroact to the day after the end of the 6-month period after the expiry of the old CBA.
Rules on Effectivity and Retroactivity of New CBA (Apply Only to Provisions Other than CBA as a Result of Negotiations Representational) B. New and First-Ever CBA (No previous CBA)
effective on date agreed upon by the parties II. Arbitral Awards A. With Previous CBA 1. Arbitral award final within 6 months from old CBA: retroact to the date following the expiry of the old CBA. 2. Arbitral award final after 6 months following the expiration of the old CBA: General Rule: the agreement between the parties. If there is no agreement, retroact to the 1st day following the 6-month period B. New and First-Ever CBA (No previous CBA) Labor Secretarys discretion will be followed.
B. BARGAINING AGENT & CERTIFICATION ELECTION PROCEEDINGS Art. 255. Exclusive bargaining representation and workers participation in policy
and decisionmaking. The labor organization designated or selected by the majority of the employees in an appropriate collective bargaining unit shall be the exclusive representative of the employees in such unit for the purpose of collective bargaining. However, an individual employee or group of employees shall have the right at any time to present grievances to their employer. Any provision of law to the contrary notwithstanding, workers shall have the right, subject to such rules and regulations as the Secretary of Labor and Employment may promulgate, to participate in policy and decision-making processes of the establishment where they are employed insofar as said processes will directly affect their rights, benefits and welfare. For this purpose, workers and employers may form labor-management councils: Provided, That the representatives of the workers in such labor-management councils shall be elected by at least the majority of all employees in said establishment. (As amended by Section 22, Republic Act No. 6715, March 21, 1989).
Bargaining Unit
a group of employees sharing mutual interests within a given employer unit, comprised of all or less than all of the entire body of employees in the employer unit or any specific occupational or geographical grouping within such employer unit
Organized Establishment
an enterprise where there exists a recognized or certified sole and exclusive bargaining agent
Run-off Election
an election between the labor unions receiving the 2 highest number of votes in a certification or consent election with 3 or more choices, where such a certified or consent results in none of the 3 or more choices receiving the majority of the valid votes cast; provided that the total number of votes for all contending unions is at least 50% of the number if votes cast
Voluntary Recognition
process by which a legitimate labor union is recognized by the employer as the exclusive bargaining representative or agent in a bargaining unit, reported with the Regional Office in accordance with Rule VII, section 2 of these Rules.
Voluntary Recognition
When to file In unorganized establishments with only one legitimate labor organization, the employer may voluntarily recognize the representation status of the union. Within 30 days from such recognition, the employer and union shall submit a notice of voluntary recognition.
Voluntary Recognition
Where to file Regional Office which issued the recognized labor unions certificate of registration or certificate of creation of a chartered local.
Voluntary Recognition
Requirements: The notice of voluntary recognition shall be accompanied by the original copy and 2 duplicate copies of the following documents: 1. A joint statement under oath of voluntary recognition attesting to the fact of voluntary recognition. 2. Certificate of posting of the joint statement of voluntary recognition for 15 consecutive days in at least 2 conspicuous places in the establishment or bargaining unit where the union seeks to operate. 3. Approximate number of employees in the bargaining unit, accompanied by the names of those who support the voluntary recognition comprising at least a majority of the members of the bargaining unit. 4. A statement that the labor union is the only legitimate labor organization operating within the bargaining unit. These documents shall be certified under oath by the employers representative and president of he recognized labor union.
Voluntary Recognition
Procedure: 1. If notice of voluntary recognition is sufficient in form, number and substance, and there is no other registered labor union operating within the bargaining unit, the Regional Office shall record the fact of voluntary recognition within 10 days from receipt of notice. 2. Where notice of voluntary recognition is insufficient, the Regional Office shall notify the labor union of its findings and advise it to comply with the necessary requirements. If the employer or union failed to complete the requirements for voluntary recognition within 30 days from receipt of advisory, the Regional Office shall return.
Voluntary Recognition
Effects of recording of fact Recognition 1. The recognized labor union shall enjoy the rights, privileges and obligations of an existing bargaining agent of all the employees in the bargaining unit. 2. A petition for certification election cannot be filed for 1 year from the date of entry of the voluntary recognition.
Certification Election
Who may file 1. any legitimate labor organization 2. employer, when requested to bargain collectively Where to file Regional Office which issued the certificate of registration/certificate of creation.
Certification Election
When to file Anytime, except: 1. When voluntary recognition has been entered, or a valid certification, consent or run-off election has been conducted within 1 year prior to the filing. 2. negotiations in good faith with the employer 3. bargaining deadlock had been submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout. 4. Registered CBA may file only within 60 days prior to the expiration of the CBA.
Preliminary Conference
The Med-Arbiter shall conduct a preliminary conference and hearing within 10 days from the receipt of the petition to determine the following: a. the bargaining unit to be represented; b. contending labor unions; c. possibility of consent elections; d. existence of any of the bars to certification election; and e. such other matters as may be relevant for the final disposition of the case In case the contending unions agree to a consent election, the Med-Arbiter shall not issue a formal order calling for the conduct of certification election, but shall enter the fact of the agreement in the minutes of the hearing.
Prohibited Grounds for Denial of Petition (must be heard and resolved by the Regional Director in an independent petition for cancellation of registration:
1. validity of petitioning unions certificate of registration 2. legal personality as a labor organization 3. validity of registration 4. execution of CBAs
Appeal
a. order granting conduct of certification election in unorganized establishments NOT appealable b. all others appealed to the DOLE Sec. within 10 days from receipt thereof.
Pre-election Conference
Within twenty-four (24) hours from receipt of the assignment for the conduct of a certification election, the Election Officer shall cause the issuance of notice of pre-election conference upon the contending unions and the employer. Must be scheduled within 10 days from receipt of the assignment. Must be completed within 30 days from the last hearing.
Consent Election
In case the contending unions agree to a consent election, the Med-Arbiter shall not issue a formal order calling for the conduct of certification election, but shall enter the fact of the agreement in the minutes of the hearing. The minutes of the hearing shall be signed by the parties and attested to by the Med-Arbiter. The Med-Arbiter shall, immediately thereafter, forward the records of the petition to the Regional Director or his/her authorized representative for the determination of the Election Officer by the contending unions through raffle. The first pre-election conference shall be scheduled within ten (10) days from the date of entry of agreement to conduct consent election. (See Annex H)
considered as a waiver to be present and to question or object to any of the agreements reached in said pre-election conference However, the non-appearing party or the employer still has the right to be furnished notices of subsequent pre-election conferences and to attend the same
Qualification of Voters
All employees who are members of the appropriate bargaining unit at the time of the issuance of the order granting the conduct of a certification election shall be eligible to vote. An employee who has been dismissed from work but has contested the legality of the dismissal in a forum of appropriate jurisdiction at the time of the issuance of the order for the conduct of a certification election shall be considered a qualified voter o unless his/her dismissal was declared valid in a final judgment at the time of the conduct of the certification election.
Inclusion-Exclusion of Voters
In case of disagreement over the voters list or over the eligibility of voters, all contested voters shall be allowed to vote. But their votes shall be segregated and sealed in individual envelopes
Challenging of Votes
An authorized representative of any of the contending unions and employer Before it is deposited in the ballot box Grounds: a. that there is no employer-employee relationship between the voter and the company; b. that the voter is not a member of the appropriate bargaining unit which petitioner seeks to represent.
Protest
Any party-in-interest may file a protest based on the conduct or mechanics of the election. Protests shall be recorded in the minutes of the election proceedings. Protests not so raised are deemed waived. The protesting party must formalize its protest with the Med-Arbiter, with specific grounds, arguments and evidence, within five (5) days after the close of the election proceedings. If not recorded in the minutes and formalized within the prescribed period, the protest shall be deemed dropped.
Canvassing of Votes
Counted and tabulated by the Election Officer in the presence of the representatives of the contending unions. Each representative entitled to a copy of the minutes of the election proceedings and results of the election. The ballots and the tally sheets shall be i. sealed in an envelope ii. signed by the Election Officer and the representatives of the contending unions iii. transmitted to the Med-Arbiter, together with the minutes and results of the election, within 24 hours from the completion of the canvass Where the election is conducted in more than one region, consolidation of results shall be made within 15 days from the conduct thereof.
Failure of Election
Where the number of votes cast in a certification or consent election is less than the majority of the number of eligible voters and there are no material challenged votes. A failure of election shall not bar the filing of a motion for the immediate holding of another certification or consent election within 6 months from date of declaration of failure of election.
Action on the motion for the immediate holding of another certification or consent election
Within 24 hours from receipt of the motion, the Election Officer shall immediately schedule the conduct of another certification or consent election within 15 days from receipt of the motion and cause the posting of the notice of certification election at least 10 days prior to the scheduled date of election in 2 most conspicuous places in the establishment. The same guidelines and list of voters shall be used in the election.
Run-off Election
When an election which provides for 3 or more choices results in none of the choices (unions or no union choice) receiving a majority of the valid votes cast, the Election Officer shall motu propio conduct a run-off election within 10 days from the close of the election proceedings 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 50% of the number of votes cast. And there are no objections or challenges which if sustained can materially alter the results, No Union shall not be a choice in the run-off election. Notice of run-off elections shall be posted by the Election Officer at least five (5) days before the actual date of run-off election.
Art. 260. Grievance machinery and voluntary arbitration. The parties to a Collective Bargaining Agreement shall include therein provisions that will ensure the mutual observance of its terms and conditions. They shall establish a machinery for the adjustment and resolution of grievances arising from the interpretation or implementation of their Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies. All grievances submitted to the grievance machinery which are not settled within seven (7) calendar days from the date of its submission shall automatically be referred to voluntary arbitration prescribed in the Collective Bargaining Agreement. For this purpose, parties to a Collective Bargaining Agreement shall name and designate in advance a Voluntary Arbitrator or panel of Voluntary Arbitrators, or include in the agreement a procedure for the selection of such Voluntary Arbitrator or panel of Voluntary Arbitrators, preferably from the listing of qualified Voluntary Arbitrators duly accredited by the Board. In case the parties fail to select a Voluntary Arbitrator or panel of Voluntary Arbitrators, the Board shall designate the Voluntary Arbitrator or panel of Voluntary Arbitrators, as may be necessary, pursuant to the selection procedure agreed upon in the Collective Bargaining Agreement, which shall act with the same force and effect as if the Arbitrator or panel of Arbitrators has been selected by the parties as described above.
D. ADMINISTRATION IF AGREEMENT; GRIEVANCE AND VOLUNTARY ARBITRATION Art. 261. Jurisdiction of Voluntary Arbitrators or panel of Voluntary Arbitrators
The Voluntary Arbitrator or panel of Voluntary Arbitrators shall have original and exclusive jurisdiction to hear and decide all unresolved grievances arising from the interpretation or implementation of the Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies referred to in the immediately preceding article. Accordingly, violations of a Collective Bargaining Agreement, except those which are gross in character, shall no longer be treated as unfair labor practice and shall be resolved as grievances under the Collective Bargaining Agreement. For purposes of this article, gross violations of Collective Bargaining Agreement shall mean flagrant and/or malicious refusal to comply with the economic provisions of such agreement. The Commission, its Regional Offices and the Regional Directors of the Department of Labor and Employment shall not entertain disputes, grievances or matters under the exclusive and original jurisdiction of the Voluntary Arbitrator or panel of Voluntary Arbitrators and shall immediately dispose and refer the same to the Grievance Machinery or Voluntary Arbitration provided in the Collective Bargaining Agreement.
Art. 262. Jurisdiction over other labor disputes The Voluntary Arbitrator or panel of Voluntary Arbitrators, upon agreement of the parties, shall also hear and decide all other labor disputes including unfair labor practices and bargaining deadlocks.
D. ADMINISTRATION IF AGREEMENT; GRIEVANCE AND VOLUNTARY ARBITRATION Art. 277. Miscellaneous provisions.
(f) A special Voluntary Arbitration Fund is hereby established in the Board to subsidize the cost of voluntary arbitration in cases involving the interpretation and implementation of the Collective Bargaining Agreement, including the Arbitrators fees, and for such other related purposes to promote and develop voluntary arbitration. The Board shall administer the Special Voluntary Arbitration Fund in accordance with the guidelines it may adopt upon the recommendation of the Council, which guidelines shall be subject to the approval of the Secretary of Labor and Employment. Continuing funds needed for this purpose in the initial yearly amount of fifteen million pesos (P15,000,000.00) shall be provided in the 1989 annual general appropriations acts. chan robles virtual law library The amount of subsidy in appropriate cases shall be determined by the Board in accordance with established guidelines issued by it upon the recommendation of the Council. The Fund shall also be utilized for the operation of the Council, the training and education of Voluntary Arbitrators, and the Voluntary Arbitration Program. (As amended by Section 33, Republic Act No. 6715, March 21, 1989).
Disputes under Grievance Machinery 1. interpretation or implementation of the CBA 2. interpretation or enforcement of company personnel policies