MANDATORY PROVISIONS OF CBA

(1) Grievance Procedure

The parties to a Collective Bargaining Agreement shall include therein:

1) Provisions that will ensure the mutual observance of its terms and conditions.

2) A machinery for the adjustment and resolution of grievances arising from:

a) The interpretation or implementation of their CBA; and b) those arising from the

interpretation or enforcement of company personnel policies.

All grievances submitted to the grievance machinery which are not settled within 7 calendar days from the date of its submission shall be automatically referred to voluntary arbitration prescribed in the CBA. [Art. 273]

It should be remembered that a grievance procedure is part of the continuous process of collective bargaining. It is intended to promote a friendly dialogue between labor and management as a means of maintaining industrial peace. [Master Iron Labor Union v.

NLRC, 1993]

No particular setup for a grievance machinery is required by law. [Art. 273] of, as incorporated by R.A. 6715, only mandates that the parties to the CBA establish a machinery to settle problems arising from

"interpretation or implementation of their collective bargaining agreement and those arising from the interpretation or enforcement of company personnel policies.

[Caltex Refinery Employees Association v.

Brillantes, 1997]

(2) Voluntary Arbitration Constitutional Basis

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. [1987 Constitution. Art. XIII Section 3]

Who is a voluntary arbitrator

A “voluntary arbitrator” is any person accredited by the National Conciliation and Mediation Board or any person named or designated in the Collective Bargaining Agreement by the parties to act as their Voluntary Arbitrator, or one chosen with or without the assistance of the National Conciliation and Mediation Board, pursuant to a selection procedure agreed upon in the Collective Bargaining Agreement, or any official that may be authorized by the Secretary of Labor and Employment to act as Voluntary Arbitrator upon the written request and agreement of the parties to a labor dispute [Art. 219 (n)]

Automatic Referral If Grievance Machinery Fails

All grievances submitted to the grievance machinery which are not settled within 7 calendar days from the date of its submission shall automatically be referred to voluntary arbitration prescribed in the CBA. [Art. 273]

Provision for Voluntary Arbitration in the CBA

(1) Parties to a CBA shall:

a. Name and designate in advance a Voluntary Arbitrator or panel of Voluntary Arbitrators, OR

b. Include in the agreement a procedure for the selection of such Voluntary

Arbitrators preferably from the listing of qualified Voluntary Arbitrators duly accredited by the Board.

(2) 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 Voluntary Arbitrator or panel of Arbitrators procedure agreed upon in the CBA, which shall act with the same force and effect as if the has been selected by the parties as described above. [Art. 273]

Voluntary Arbitration as a Condition Precedent

The stipulation to refer all future disputes to an arbitrator or to submit an ongoing dispute to one is valid. Being part of a contract between the parties, it is binding and enforceable in court in case one of them neglects, fails or refuses to arbitrate. Going a step further, in the event that they declare their intention to refer their differences to arbitration first before taking court action, this constitutes a condition precedent, such that where a suit has been instituted prematurely, the court shall suspend the same and the parties shall be directed forthwith to proceed to arbitration. A court action may likewise be proper where the arbitrator has not been selected by the parties. [Chung Fu Industries v. CA, 1992]

Arbitrable Issues

1. interpretation or implementation of the CBA [Art. 274]

2. interpretation or enforcement of company personnel policies [Art. 274]

3. violations of CBA provision which are not gross in character (gross being flagrant/malicious refusal to comply with the economic provisions of the CBA) [Art.

2274]

4. all other labor disputes including ULP and bargaining deadlock, if the parties agree [Art. 275]

5. Wage distortions arising from application of any wage orders in organized establishments [Art. 124]

6. Unresolved grievances arising from the interpretation and implementation of the productivity incentives program under RA 6971 [Book V, Rule XIX, Sec. 4]

In general, the arbitrator [“VA”] is expected to decide those questions expressly stated and limited in the submission agreement.

However, since arbitration is the final resort for the adjudication of disputes, the arbitrator can assume that he has the power to make a final settlement. The VA has plenary jurisdiction and authority to interpret the CBA and to determine the scope of his or her own authority. Subject to judicial review, this leeway of authority and adequate prerogative is aimed at accomplishing the rationale of the law on voluntary arbitration – speedy labor justice. [Goya, Inc. vs. Goya, Inc. Employees Union-FFW, 2013]

Procedure of Voluntary Arbitration (1) All parties shall be entitled to attend the

arbitration proceedings.

(2) The hearing may be adjourned for cause or upon agreement by the parties.

(3) Unless the parties agree otherwise, it shall be mandatory for voluntary arbitrator or panel of voluntary arbitrators to render an award or decision within twenty (20) calendar days from the date of submission for resolution [Book V, Rule XIX, Sec. 6]

Powers of voluntary arbitrators during arbitration proceeding

(1) hold hearings (2) receive evidence

(3) take whatever action is necessary to resolve the issue or issues subject of dispute, including efforts to effect a voluntary settlement between parties (4) determine attendance of any third parties (5) determine exclusion of any witness (6) issue writ of execution for sheriff of NLRC

or regular courts to execute the final decision, order, or award (Art 276)

Finality of the final decision, Order, or Award

[T]he award or decision of the Voluntary Arbitrator […] shall be final and executory after 10 calendar days from receipt of the copy of the award or decision by the parties.

[…] (Art. 276)

Motion for Reconsideration

The absence of a categorical language in Art.

276 [then Art. 262-A] does not preclude the filing of a motion for reconsideration of the VAs decision within the 10-day period. [Teng v Pahagac, G.R. 169704, (Nov. 17, 2010)]

Clearly, before a petition for certiorari under Rule 65 of the Rules of Court may be availed of, the filing of a motion for reconsideration is a condition sine qua non to afford an opportunity for the correction of the error or mistake complained of. So also, considering that a decision of the Secretary of Labor is subject to judicial review only through a special civil action of certiorari and, as a rule, cannot be resorted to without the aggrieved party having exhausted administrative remedies through a motion for reconsideration, the aggrieved party, must be allowed to move for a reconsideration of the same so that he can bring a special civil action for certiorari before the Supreme Court. [PIDLTRANCO Service Enterprises Inc v PWU – AGLO, GR No. 180962, (Feb 26, 2014)]

The rule, therefore, is that a Voluntary Arbitrator’s award or decision shall be appealed before the Court of Appeals within 10 days from receipt of the award or decision.

Should the aggrieved party choose to file a motion for reconsideration with the Voluntary Arbitrator, the motion must be filed within the same 10-day period since a motion for reconsideration is filed "within the period for taking an appeal." [PHILEC v Court of Appeals, GR No. 168612, (Dec 10, 2014)]

Appeal

While there is an express mode of appeal from the decision of a labor arbiter, Republic Act No. 6715 is silent with respect to an appeal from the decision of a voluntary arbitrator.

Assuming arguendo that the voluntary arbitrator or the panel of voluntary arbitrators may not strictly be considered as a

quasi-judicial agency, board or commission, still both he and the panel are comprehended within the concept of a "quasi-judicial instrumentality." A fortiori, the decision or award of the voluntary arbitrator or panel of arbitrators should likewise be appealable to the Court of Appeals. [Luzon Development Bank v. Assoc of Luzon Dev’t Employees, 1995]

The decisions of the voluntary arbitrator are akin to those of the Regional Trial Court, and therefore should first be appealed to the Court of Appeals before being elevated to [the Supreme Court]. [Centro Escolar University Faculty and Allied Workers Union v.

Court of Appeals, 2006]

Costs

The parties to a Collective Bargaining Agreement shall provide therein a proportionate sharing scheme on the cost of the voluntary arbitration including the Voluntary Arbitrators fee. […] [Art. 277]

Voluntary Arbitrator's Fee

[…] The fixing of the fee of the Voluntary Arbitrators, whether shouldered wholly by the parties or subsidized by the special voluntary arbitration fund, shall take into account the following factors:

(1) nature of the case

(2) time consumed in hearing the case (3) professional standing of the voluntary

arbitrator

(4) capacity to pay of the parties. [Art. 277]

(3) No Strike-No Lockout Clause

A "no strike, no lock-out" provision in the CBA is a valid stipulation although the clause may be invoked by an employer only when the strike is economic in nature or one which is conducted to force wage or other concessions from the employer that are not mandated to be granted by the law itself. It would be inapplicable to prevent a strike which is grounded on unfair labor practice. [Panay Electric Co. v. NLRC, 1995; Malayang Samahan ng mga Manggagawa sa Greenfield v. Ramos, 2000]

(4) Labor Management Council

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. […] [Art. 267]

Selection of Representatives

In organized establishments, the workers’

representatives to the council shall be nominated by the exclusive bargaining representative. In establishments where no legitimate labor organization exists, the workers representative shall be elected directly by the employees at large. [Book V, Rule XXI, Sec. 2]

III. ADMINISTRATION AND ENFORCEMENT