Right to self-organization Why workers unionize? 1. In orde orderr to acquir acquire e a rela relativ tive e equality of bargaining power 2. In orde orderr to attain attain securit security y of tenure
Matters cannot be subj. to collective bargaining Matters that are fixed by law Matters that involve appropriation of money Matters that involve exercise of management prerogative by High Level Employee
3. Union Union becom becomes es an agent agent of participatory democracy Public Sector Management Council Positive freedom of assoc -
Work Worker ers s hav have e the the righ rightt to to joi join, n, form or represented by a union
Negative freedom of assoc -
Righ Rightt of of the the wor worke kers rs not not to to for form, m, join or or be represented represented by a union.
NB. As between freedom of religion (freedom of conscience) and union security clauses, in the hierarchy of cons. Rights, the one that occupies a higher rank is the freedom fre edom of religion. Who can form a Labor Union Employees both of private and Gov Self-employed (not for purposes of CBA Employees of intl. org (not for CBA Who cannot Members of managerial Members of Coop Confidential Employees (under the doc. of necessary implication) - Tho Those that that have ave acc acces ess s to confidential labor relations information Members of Iglesia High Level Employees (Gov Officials) Members of the AFP, PNP, BJMP, BFD
Nb. Collective Bargaining –private sector Collective Negotiation – gov sector
Gr. EEs of Gov cannot strike - Affec Affects ts deli delive very ry of vital vital servi service ces s to the people - A civi civill serv servic ice e offen ffense se - A for form m of of ins insur urre rect ctio ion n in the the lig light ht of the principle of state sovereignty Ex. Employees of GOCC w/o orig charters are governed by the Labor Code thus can strike. NB. Req. for Registration Certificate of Registration Legal effects of registration 1. Right Right of rep. rep. (appli (applies es only only to union mem) 2. To be cert cert as the the bargain bargaining ing agent in the establishment est ablishment
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Voluntary recognition (direct cert. not allowed) Only one union Must Must pos posse sess ss majo majori rity ty stat status us w/ proof of the same Volu Volun ntari tarily ly reco recogn gniz ized ed
Bargaining Req. Possessoin of majority status Proof Bargaining process
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Consent Election An agr agreed ele election ion
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w/ or w/o w/o inte interv rven enti tion on of the the Regional office of the DOLE (doc (doctr trin ine e of of uni union on mono monopo poly ly))
Cert election - w/ inte interv rven enti tion on of the the Dol Dole e - majo majori rity ty of illeg illegib ible le voter voters s shal shalll vote - one one who who has has gar garne nere red d maj major orit ity y votes after the election - spoi spoile led d bal ballo lots ts are are inc inclu lude ded d in in the first majority rule, excluded in the second majority
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Run-Off Election cond conduc ucte ted d by an ele elect ctio ion n offi office cerr no unio nion does does not exis existt
Subscription Req. – 25% If complied with – mandatory to conduct Cert. election If not complied with – discretionary - beca becau use the the mos mostt exp exped edit itio ious us way in determining the will of the employees is thru a cert. election Instances where cert. election cannot be conducted 1. cont contra ract ct bar bar rule rule - duly duly regi regist ster ered ed CBA CBA bar bars s cer cert. t. elec. - CBA CBA mus ustt be regi regist ster ered ed - No cert cert elec electi tion on shal shalll b be e hel held d during the life span of the CBA except on the freedom period Rep. Aspect – 5 yrs. o o Economic provision– 3 yrs 2. dead deadlo lock ck bar bar rule rule - duri during ng the the CB CB pro proce cess ss,, the there re was was deadlock/stand still/impasse, which has been a subject to conciliation, mediation, grievance machinery or subj. to a notice of strike 3. charge charge of comp company any unioni unionism sm rule - ULP - Comp Compan any y domi domina nati tion on/d /dom omin inat ated ed union
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Com Company any unio union n idea idea was was initiated by the ER - When When RnF RnF uni union on was was cap capti tiva vate ted d by the ER. Nb. Charge of company unionism is a prejudicial question that has to be first settled 4. nego negotia tiatio tion nb bar ar rul rule e 5. appe appeal al bar bar rul rule e 6. one one yea yearr bar bar rule rule
Exceptions to the contract bar rule 1. if the the CBA is not not regi register stered ed - stil stilll val valid id b/w the the par parti tie es - does does not not bar bar cert cert.. elec elec.. 2. if the CBA is incom incomple plete, te, inadequate, substandard CBA - refe refers rs to econ econom omic ic prov provis isio ions ns of the CBA was substandard - if the the CBA CBA for for a con conclu clusive sive arbitration clause, the CBA is incomplete or inadequate 3. if the the CBA has been been hasti hastily ly entered into or prematurely extended 4. mass mass disaf disaffi fili liati ation on - they they can can sti still ll barg bargai ain n even even if their membership is already depleted with the management, until and unless the union lost in a cert. elec. 5. autom automatic atic renewa renewall clause clause Principle of CBA Continuity - to prev preven entt any any hiat hiatu us tha thatt wil willl result if no CBA is agreed upon by the parties CBA is a contract in personam - succ succes esso sorr in inte intere rest st is not not governed by the previous CBA - unle unless ss the the suc succe cess ssor or expr expres essl sly y adopt the previous CBA Duty to bargain collectively - perf perfor orm mance ance of a mutual tual obligation b/w the employer and
the union on matter involving terms and conditions of employment promptly, expeditiously and in good faith, including providing
Doctrinal standards of Collective bargaining Mutual Bargaining - CBA CBA pro propo posa sall by by th the un union ion - ER subm submit it coun counte terr prop propos osal al within 10 days - pena penalt lty y impo impose sed d agai agains nstt an erring employer, the union CBA proposal shall be the governing CBA in the establishment esta blishment Prompt Bargaining Good Faith bargaining Take not of the definition - Surface ba bargaining - Run Run aw away sh sho op – stri strike ke area area include run-away shop - Boulwareism - Blue lue sky sky bargaining Contents of the CBA Union Security Clause - Close shop - Union shop o Coupled with maintenance of membership shop to retain their employment - Agency shop o Maintenance of treasury o Anti free rider clause o Non-union members receiving CBA benefits shall pay agency fees equivalent to the amount of union dues to support the union that made the benefit possible o Need not be included or agreed upon in the CBA, because the Labor Code already provides
GR. No waiver of the right to strike Exception: If the strike is waiveable under the no strike no deadlock clause Conclusive Arbitration Clause Must contain Drug Free provision Escalator Clause Separability Clause Effectivity Clause
Q. May a non-registered union file a petition for cert. election? A. no Exception: If the federation issues a charter cert. to a chartered local, although not yet registered, that chartered local shall acquire an imperfect, partial legal personality and it can file a petition for cert. election only for the purpose of certification election Can the Principle of Comingling Apply under the Labor Code. - No, No, deem deemed ed excl exclu uded ded by operation of law - Does Does not not app apply ly to supe superv rvis isor ory y unions if there are rank and file and does not apply to rank and file union if there are supervisors in the group - Bu Butt th they can can join join the the sam same e Federation FEDERATIIONS - 10 local cals/m s/memb embers - Prin Princi cipa pall is the the loca local, l, the the Federation is the agent - If the the rel relat atio ion nsh shiip of of th the federation and the member is cut off, the federation has no more right to represent the local
NLRC - 8 Divisions - Quas Quasii jud judic icia iall fun funct ctio ions ns are are exercised in division
Judicial Judicial Functi Functions ons of the the NLRC NLRC 1. Cont Contem empt pt powe power r 2. Injun Injunct ctiv ive e powe power r - NLRC can issue TRO - ther there e must must be a heari earin ng conducted in observance of due process - TRO TRO can can be issu issued ed ex part parte e by the NLRC because the TRO is a mere interlocutory order prior to the issuance of a writ of injunction 3. Certificatio Certification n Power Power Art.263g Art.263g - Issue on assumption can be certified to be resolved through a voluntary arbitrator 4. Appe Appell llat ate e Powe Power r - Decisions of the LA under Art 217 o Damages o ULP - What is ULP an act of the ER or the UNION or their Agents which violate the right of the workers to self organization GR. E-E relationship must exist Exception: 1. Yellow Yellow-do -dog g Cont Contrac ractt a ULP ULP committed against a non employee 2. Comm Commit itted ted by the the agen agentt -
Take Take note note of the the ULP ULP by the the ER ER and EE Violation of Art 264 o Strike –temporary stoppage of work
Classification 1. Author Authorize ized d –one –one condu conducted cted with with the approval of the union members through strike vote 2. Wildca Wildcatt strike strike – a strike strike that that has has not been approved by the union members 3. Particu Particular lar strike strike – one one confi confined ned in one particular business establishment or entity 4. Gene Genera rall stri strike ke – for form ma sympathetic strike that is
political in nature, staged in the absence of an E-E relationship. Ex. Welga ng Bayan, Industry Wide Strike 5. Slow Slow down down strike strike – no stop stoppag page e of work, purpose is to reduce company out or production. Under the principles of no work no pay a. Sit Sit dow down n str strik ike e b. 6. Sympat Sympathet hetic ic Strik Strike e – form form of strike effected in sympathy to EEs of another industry. No E-E E-E Rel. 7. Lightni Lightning ng strike strike – a brief brief stoppage of work 8. Econom Economic ic strik strike e – one one declar declared ed on account of collective bargaining deadlock 9. ULP strike strike – one staged staged on the the right of the worker to self organization 10.Legal – staged in compliance with law 11.Illegal – non-compliance of the legal requirements that would make the strike legal
Grounds 1. Based Based on a valid valid grou ground nd a. CB dead deadlo lock ck b. ULP ULP (uni (union on busti busting ng)) 2. Parties Parties must must have have barg bargain ained ed collectively 3. Notice Notice of of strike strike 30-eco 30-econo nomic mic,, 1515ULP a. Filed Filed with with the the NCM NCMB B b. Durin During g the the cool coolin ing g of period, the thing can still be resolved through grievance machineries i. Impr Improv oved ed off offer er ii. ii. Redu Reduce ced d offe offerr iii. iii. Arbit rbitrratio ation n iv. iv. Con Concili ciliat atio ion n v. Mediation Union Busting – w/o compliance of the 24-hour prior notice rule and strike
voting within 7 days before the date of strike, there can be no strike. 4. Compli Complianc ance e with with the the 24-hou 24-hourr prior notice rule - w/n w/n 24 24 hou hours rs befo before re the the con condu duct ct of strike vote, notice must be submitted with the NCMB and the employer of the date and place of the strike voting. - NCMB NCMB may inte interv rven ene e in in th the conduct of strike vote. 5. Submi Submissio ssion n of of the the strike strike vote vote report Reckoning period of filing of the strike vote report: upon expiration of the cooling of period (30 + 7 = 37 / 15 + 7 =22) 6. Compli Complianc ance e with with the the doctri doctrine ne of of means and purposes Legal purpose + legal means = legal strike Legal purpose + illegal means = illegal strike Who may be held liable in illegal strike? Officers of the union (officers of the union masterminded the illegal strike, they are liable under the doctrine of vicarious liability) In legal strike - Work Worker ers s ar are not not lia liable ble for for damages under the doctrine of damnum absque injuria - Generally striking workers are not entitled to back wages under the principle of no work no pay Exceptions: 1. Discrim Discrimina inator torily ily dismisse dismissed d 2. Worker Workers s did not not strike strike but but were were illegally locked out by the employer 3. The The stri striki king ng work worker ers s unconditionally offered to return to work but was rejected by the employer Take note of instances of illegal strike
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In orde orderr to have have an effe effect ctiv ive e strike, there must be an effective picketing Pick Picket etin ing g may may be cond conduc ucte ted d in in the absence of E-E Relationship because picketing is part of the right to freedom of expression
7. In case case of of strike strikes s or lockou lockoutt in hospitals, the union must provide for a skeletal work force.
As to Police Officers - Shall not employ strike breakers (fink) o Big Money Claims - An Any y mon money ey clai claim, m, rega regard rdle less ss of amount, accompanied with a claim for reinstatement - An Any y mon money ey clai claim m rega regard rdle less ss of whether accompanied with a claim for reinstatement, exceeding the amount of P5,000.00 per claimant Exception: Big money claims which arise out of the t he exercise of visitorial powers are congnizable by the Regional Director Art. 128 VISITORIAL POWERS - Enfo Enforce rceme ment nt orde orderr has has the the effec effectt of a writ of execution CONTESTED (arising from Visitorial Powers) - If the the evi evide dent ntia iary ry matt matter er is readily available, the Regional Office retains jurisdiction - If evid eviden enti tiar ary y mat matte terr are are not not readily available the R.O will have to elevate the case to the Labor Arbiter IF NOT CONTESTED (arising from Visitorial Powers) - Regi Region onal al Offi Offic ce ret retai ain ns Jurisdiction Jurisdiction
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Money claims of OFW, including disability and death benefits under R.A. 8042 Over church men pertaining to Secular Matters not religious matters
GOCC w/o Original Charter o 3rd party c0mplaint in relation to a writ of execution o Collateral matters - any any mat matte terr tha thatt is is inci incide den ntal tal to to the matter over which the LA has jurisdiction o Decisions of the LA pursuant to RA 9042 o Decisions of the LA regarding wage distortion in an unorganized establishment Initial jurisdiction is with NCMB If conciliation/mediation fail, the NCMB shall transmit the matter to the Regional Arbitration Branch of the NLRC. Labor Arbiter has Jurisdiction, Appealable to the NLRC - Art 129 of the LC o
ULP ER 1. Yell Yellow ow-D -Dog og con contra tract ct 2. Disc Discri rimi mina nati tion on - Per se is not ULP - Bu Butt if if des desiigned gned to dampe ampen n unionism 3. Comp Compan any y Unio Unioni nism sm - Unio Union n org organ aniz ized ed by the the com compa pany ny - Captive un union 4. Contra Contractin cting g out out of of servi services ces - Per se is not ULP - Howe Howeve verr if if the the same same is beyo beyond nd 6 months, the same becomes ULP, leaving the union member nothing to work for
5. Flagran Flagrantt and and Gross Gross violati violation on of the CBA
BLR -
inte interr-u unio nion disp dispu utes tes (representative disputes) intr intraa- unio union n dispu ispute tes s (organizational disputes) register union register CBA awar award d of of dam damag ages es in rela relati tion on to its functions
PADRONE SYSTEM - a for form m of of invo involu lunt ntar ary y ser servi vitu tude de ART.12 Sec.6 Principle of Distrubutive Justice - no one one has has an abso absolu lute te righ rightt over his property ART.13 1. Right Right to self self orga organiz nizati ation on 2. Right to collec collective tive bargaining bargaining 3. Right Right to collec collectiv tive e negotiations 4. Right Right to secu security rity of of tenure tenure 5. Right Right to a living living wage wage 6. Right Right to to Just Just and humane humane conditions of work 7. Right to partici participate pate in policy policy and decision making processes 8. Right Right to to profi profitt shari sharing ng benefits - In the the abs absen ence ce of a law law,, this this right cannot be demanded - This This is give given n out out on on acco accoun untt pursuant to a CBA, company practice or policy - Give Given n as as a mat matte terr of of pri privi vile lege ge by the employer CIVIL CODE PROVISIONS 1. PRINCI PRINCIPLE PLE OF NONNON-OPP OPPRES RESSIO SION N - Neith Neither er capi capita tall nor nor lab labor or shal shalll act act oppressively with each other - Both Both fact factor ors s of of labo laborr and and capi capita tall are equally protected
2. Labore Laborers rs wage wages s are not subjec subjectt to execution or garnishment. Art.1708 Salary, wages, compensation, consideration are the same, i t is but a matter of legal semantics. But in case of Art.1708, in the matter of execution and garnishment there has to be a distinction. Salary – paid to employees Wages – laborers who do manual labor
LABOR CODE Def.
