LABOR LAW 2 LABOR LAW 2 INTEGRATION NOTES INTEGRATION NOTES BASIC PROPOSITIONS BASIC PROPOSITIONS Constitutional basis Constitutional basis
- government employees included - government employees included
- the Consti is specific: it makes mention of “unions” - the Consti is specific: it makes mention of “unions” -
- A13 Sec.3 Consti: tA13 Sec.3 Consti: talks about the Private sealks about the Private sector and Labor Relationctor and Labor Relationss rights:
rights:
- collective bargaining - collective bargaining - echoes Art. II
- echoes Art. II of Constiof Consti
- right to engage in peaceful concerted activities including the right - right to engage in peaceful concerted activities including the right
to strike in accordance with law (purpose and means test) to strike in accordance with law (purpose and means test) - preferred: voluntary mode of dispute settlement
- preferred: voluntary mode of dispute settlement - share in the fruits
- share in the fruits of productionof production A211 LC
A211 LC Policy declarationsPolicy declarations - policy
- policy consideratioconsiderationsns
- note that all provision operate under A211 - note that all provision operate under A211
[a] modes of dispute settlement: collective bargaining and negotiation; [a] modes of dispute settlement: collective bargaining and negotiation;
and arbitration and arbitration
- the intention of the law is to provide for a democratic way of setting - the intention of the law is to provide for a democratic way of setting wages and no court can set terms of employment except as otherwise wages and no court can set terms of employment except as otherwise provided for: *compulsory arbitration under A263(g),
provided for: *compulsory arbitration under A263(g), minimum wageminimum wage fixing, and in cases
fixing, and in cases of wage distortion, unorganized establishmof wage distortion, unorganized establishment.ent. [b] unions are valid institutions; policy considerations include: *trade [b] unions are valid institutions; policy considerations include: *trade
uni
uniononism ism whewhere re ununionions s are are insinstrutrumements nts for for enhenhancancemement ent of of Democracy and pro
Democracy and promotion Social motion Social Justice, and a stronJustice, and a strong united labor g united labor force, *enlighten worker, *just sharing, and *stable industrial peace force, *enlighten worker, *just sharing, and *stable industrial peace A212 LC re
A212 LC re DefinitionDefinitionss - statutory
- statutory definitiondefinitionss
- A212 is used to determine WON Book 5 of LC applies - A212 is used to determine WON Book 5 of LC applies -
- “mea“means” ns” v v “inc“includeludes” s” – – meanmeans: s: defidefinitinition on is is comcompletplete, e, dictdictionaionaryry meaning
meaning
RIGHT TO SELF-ORGANIZATION RIGHT TO SELF-ORGANIZATION
Road map of the law: [a] Consti – states and recognizes the right of Road map of the law: [a] Consti – states and recognizes the right of workers to self organization
workers to self organization
[b] LC
[b] LC – – A243 – A243 – All EEsAll EEs
A244 – Gov’t EEs and GOCC (see EO 180) A244 – Gov’t EEs and GOCC (see EO 180)
A245 – Right of supervisors; right denied to managerial EEs A245 – Right of supervisors; right denied to managerial EEs A269 – with respect to aliens
A269 – with respect to aliens Jurisprudential Rules:
Jurisprudential Rules: [1] The right of
[1] The right of the worker to self the worker to self organization is both a constitutionaorganization is both a constitutionallylly and statutorily guaranteed right.
and statutorily guaranteed right.
[2] The right to self organization is of paramount value and thus cannot [2] The right to self organization is of paramount value and thus cannot be denied on nebulous grounds\
be denied on nebulous grounds\ [3] Any
[3] Any excepexception to tion to the rule the rule on self on self orgaorganizanization must be tion must be stristrictlyctly construed against the ER and must be liberally construed for the worker construed against the ER and must be liberally construed for the worker A243
A243– [a] applies to – [a] applies to all EE status, regardless of WON ER all EE status, regardless of WON ER is organizedis organized for profit or not.
for profit or not.
[b] distinction: Right to SO for purposes of CB, and Right to SO for [b] distinction: Right to SO for purposes of CB, and Right to SO for purpose of Mutual Aid and Protection
purpose of Mutual Aid and Protection FEU Medical Center case
FEU Medical Center case – the amended law no longer limits the– the amended law no longer limits the applicability to establishments profit institutions; it also applies to applicability to establishments profit institutions; it also applies to non- profit institutions.
profit institutions. Kap
Kapatiratiran an case case and and VictVictoriaoriano no ElizElizalde alde casecase – the right to SO is– the right to SO is constitut
constitutionally guaranteed. It may run afoul right to ionally guaranteed. It may run afoul right to religion. When EEreligion. When EE exercises right to SO, it is valid and the courts will not disturb. The exercises right to SO, it is valid and the courts will not disturb. The choice to exercise was made by EE, therefore religious tenets canot choice to exercise was made by EE, therefore religious tenets canot prevail.
prevail. A245
A245– Supervisor: acts in the interest of the – Supervisor: acts in the interest of the ER ER
Limitation in A245: a union must exclusively be a union of supervisors Limitation in A245: a union must exclusively be a union of supervisors A supervisor, when he is performing his function: [a] uses independent A supervisor, when he is performing his function: [a] uses independent judgment
judgment, and , and [b] effectively exercises that right[b] effectively exercises that right Jurisprudential rules:
Jurisprudential rules:
[1] WON an EE is a supervisor is a question of fact [1] WON an EE is a supervisor is a question of fact
[2] In the exercise of the supervisor of the right, the question is, is it [2] In the exercise of the supervisor of the right, the question is, is it effective? If power is present but the exercise is not effective, then he’s effective? If power is present but the exercise is not effective, then he’s NOT a supervisor. (power-present + power effective =
[3] It is not the title which ER confers on the worker that makes him a [3] It is not the title which ER confers on the worker that makes him a supe
supervisrvisor, neitheor, neither r is the is the job descrijob descriptioption, BUT n, BUT it is it is the job that the job that isis actually performed by him.
actually performed by him. A269
A269 – re Aliens – re Aliens 2 Rules: [a] alien is
2 Rules: [a] alien is a holder of a a holder of a valid work permitvalid work permit [b] rule of
[b] rule of reciprocity: alien’s country recognizes the samereciprocity: alien’s country recognizes the same Security Guards
Security Guards
The prohibition in A245 LC with regard to supervisory EEs does not The prohibition in A245 LC with regard to supervisory EEs does not include security guards.
include security guards. Meralco doctrine
Meralco doctrine: EO 111 has eliminated the disqualification of security: EO 111 has eliminated the disqualification of security guards from forming labor unions. IRR which disqualify security guards guards from forming labor unions. IRR which disqualify security guards from joining rank and file EEs are null and void for being not germane from joining rank and file EEs are null and void for being not germane to object and purpose of EO 111. SG’s
to object and purpose of EO 111. SG’s were direct EEs of Meralco.were direct EEs of Meralco. Workers with NO right to SO:
Workers with NO right to SO:
[a] Managerial EEs (A212.m, A245 and A82) [a] Managerial EEs (A212.m, A245 and A82) [b] Confidential EEs by necessary implication [b] Confidential EEs by necessary implication
Jurispruden
Jurisprudential tial rules:rules:
[1] Deemed confidential EE IF he *acts in a confidential capacity, [1] Deemed confidential EE IF he *acts in a confidential capacity, *assists another individual who formulates, determines, effectuates *assists another individual who formulates, determines, effectuates mg
mgt t polpoliciicies es in in the the fiefield ld of of lablabor or relrelatiationons, s, and *has and *has accaccess ess toto information re labor mgt. relations as *an integral part of his job information re labor mgt. relations as *an integral part of his job (nature of access + nature of
(nature of access + nature of info).info). [2] If the
[2] If the info relates to non-labor mgt relations, no right to SO.info relates to non-labor mgt relations, no right to SO. [c] Cooperatives
[c] Cooperatives Jurispruden
Jurisprudential tial rules:rules:
[1] If individual is both an EE and member of coop, there’s no right to [1] If individual is both an EE and member of coop, there’s no right to SO (Rural Bank of
SO (Rural Bank of Davao case)Davao case)
[2] If only an EE of coop, then he has right to SO. [2] If only an EE of coop, then he has right to SO.
* The fact of ownership and not membership in coop is the basis for * The fact of ownership and not membership in coop is the basis for prohibitio
prohibition. Fact of n. Fact of active participation in coop is irrelevant.active participation in coop is irrelevant.
[d]Non EEs – If union members are not EEs, no right to organize for the [d]Non EEs – If union members are not EEs, no right to organize for the purpose of CB and
purpose of CB and to be certified as bargaining agent can to be certified as bargaining agent can be recognized.be recognized. (( Republic Planters Bank v Republic Planters Bank v Laguesma)Laguesma)
- When right to SO is
- When right to SO is infringed, then there’s possibinfringed, then there’s possibility of ULPility of ULP - LA
- LA has original exclusive jurisdictionhas original exclusive jurisdiction -
- CompCompulsoulsory ry arbiarbitrattration ion but but may may stipstipulatulate e voluvoluntarntary y arbiarbitrattration ion asas allowed under A217
allowed under A217 - There are penal sanctions. - There are penal sanctions. LABOR ORGANIZATION LABOR ORGANIZATION The law on
The law on Labor Organization (LO) is anchored on Labor Organization (LO) is anchored on policy declarationspolicy declarations in A211.
in A211. Focus:
Focus: A234-A re CharteriA234-A re Chartering and Creation of a Long and Creation of a Local Chapter cal Chapter A242-A re
A242-A re Reportorial RequirementsReportorial Requirements
A239 – Grounds for Cancellation of Union Registration A239 – Grounds for Cancellation of Union Registration A21
A211 – 1 – PoliPolicy intency intent of t of the law: LO’s are valithe law: LO’s are valid institud institutiontions in s in PhilPhil.. Society designed to promote social justice, a strong and united labor Society designed to promote social justice, a strong and united labor union, and to enlighten the work force in order to function well
union, and to enlighten the work force in order to function well A277 – labor education programs
A277 – labor education programs 3 important terms
3 important terms
[1] Legit LO (LLO)– Test: Registration with the DOLE and
[1] Legit LO (LLO)– Test: Registration with the DOLE and not not SECSEC - “includes a
- “includes a local/branch thereof” – not automatically a LLOlocal/branch thereof” – not automatically a LLO
A234-A re union’s limited form of legitimacy for purposes of CE, but A234-A re union’s limited form of legitimacy for purposes of CE, but must satisfy the requirements.
must satisfy the requirements. A242 re rights of
A242 re rights of LLO; A242-A re reporting requirementsLLO; A242-A re reporting requirements
[2] Company Union – defined in A248 (act of company union is an act [2] Company Union – defined in A248 (act of company union is an act of ULP)
of ULP)
- the organization, formation or administration is assisted by ER - the organization, formation or administration is assisted by ER (this is(this is ULP)
ULP)
[3] Workers Association – unlike LO, its purpose is for mutual aid and [3] Workers Association – unlike LO, its purpose is for mutual aid and protection
protection
Airline Pilots Assoc case
Airline Pilots Assoc case – the test of what is LO is its purpose: “in– the test of what is LO is its purpose: “in whole or in part for purposes of CB”. Members of a LO not limited to whole or in part for purposes of CB”. Members of a LO not limited to EEs of a particular ER
EEs of a particular ER Dunlop case
Dunlop case – where union is of both supervisors and rank and file EEs,– where union is of both supervisors and rank and file EEs, then it is not a LO.
Bitonion case
Bitonion case – one becomes a member of a LO if – one becomes a member of a LO if intent is coupled withintent is coupled with a positive act. Test: consti and by-laws
a positive act. Test: consti and by-laws A234 and A237
A234 and A237
*A234 re Req’ts of registration of LO *A234 re Req’ts of registration of LO
- independent union, 20% support requirement - independent union, 20% support requirement - req’t of submission of book of accounts - req’t of submission of book of accounts
- if period of existence is less than 1year, just state so and it will be - if period of existence is less than 1year, just state so and it will be
sufficient, no need to submit book of accts sufficient, no need to submit book of accts *A237 re Req’ts of
*A237 re Req’ts of registration of national federationsregistration of national federations -
- no no 20% 20% supsuppoport rt reqrequiruiremementent, , appappliclicatiation on mumust st insinsteatead d bebe supported by 10 locals
supported by 10 locals
*A235 re action on application: to approve or not *A235 re action on application: to approve or not - The right to SO
- The right to SO is not infringed on LC req’t of is not infringed on LC req’t of registrationregistration Reasons: [a] right guaranteed by
Reasons: [a] right guaranteed by the registration are mere statutorythe registration are mere statutory [b] Protective device argument: protect labor from organizations [b] Protective device argument: protect labor from organizations
whic
which h are not are not reallreally y reprerepresentasentativetives s of labor of labor (( Progressive Progressive Devt Corp case)
Devt Corp case)
[c] Valid exercise of Police Power
[c] Valid exercise of Police Power (PAFLU v Sec of Labor)(PAFLU v Sec of Labor) - Registration however is a requirement to avail
- Registration however is a requirement to avail of right under A242. Soof right under A242. So if not registered, it cannot avail of rights under A242, (e.g. KMU is not if not registered, it cannot avail of rights under A242, (e.g. KMU is not registered)
registered)
A241, A222 and A113 A241, A222 and A113 A241 par. m, n, p
A241 par. m, n, p are the most difficult partare the most difficult part
*distinguish between extraordinary fees in A241 and atty’s fees in A222 *distinguish between extraordinary fees in A241 and atty’s fees in A222 A222 speaks of atty’s fees re disputes
A222 speaks of atty’s fees re disputes
A241 speaks of special assessments and extraordinary expenses; this A241 speaks of special assessments and extraordinary expenses; this can be processed thru check off
can be processed thru check off How to pass:
How to pass:
- a meeting called for
- a meeting called for that purposethat purpose - required quorum: all members - required quorum: all members - records req’ts
- records req’ts and attestation clauseand attestation clause
2 Rules: [1] No shortcut is allowed by law; there must be total absolute 2 Rules: [1] No shortcut is allowed by law; there must be total absolute compliance
compliance (ABS-CBN case)(ABS-CBN case), [2] Authority must be in writing, [2] Authority must be in writing
“except for mandatory activities” – “except for mandatory activities” – Chec
Check-ofk-off f – – authauthoritority y in in writwriting stating the ing stating the amouamount, purpose andnt, purpose and beneficiary.
beneficiary.
*distinguish: A113 re check-off of union dues, and A241 check-off of *distinguish: A113 re check-off of union dues, and A241 check-off of special assessment
special assessment
Collateral attack is not allowed. Legitimacy must be attacked directly Collateral attack is not allowed. Legitimacy must be attacked directly through a petition for cancellation of
through a petition for cancellation of registratioregistrationn Union-Member Relations
Union-Member Relations UST Faculty Union v
UST Faculty Union v BitonioBitonio – union’s consti and by laws (CBL) – union’s consti and by laws (CBL) is theis the fund
fundamenamental tal law that law that govegoverns rns the the relatrelationsionship between and hip between and amoamongng members of the union.
members of the union. Admission
Admission
A249.a – “LO shall have
A249.a – “LO shall have the right to prescribe its the right to prescribe its own rules with respectown rules with respect to the acquisition or retention of membership”
to the acquisition or retention of membership”
A277.c – any EE, WON employed for a definite period, beginning on A277.c – any EE, WON employed for a definite period, beginning on his first day of service, shall be considered an EE for purposes of his first day of service, shall be considered an EE for purposes of membership in any labor union.
membership in any labor union. Disc
Discipliipline ne – – inheinherent rent funcfunction tion of of uniounion. n. BasiBasis: s: survsurvival ival howhowever,ever, requisites of due process must always be complied with
requisites of due process must always be complied with
Election – ER should give voter’s list if not records of SSS is a valid Election – ER should give voter’s list if not records of SSS is a valid alternative
alternative
Last par. of A241 – don’t bother because there’s A226: any inter/intra Last par. of A241 – don’t bother because there’s A226: any inter/intra union is governed by the jurisdiction of BLR and A226
union is governed by the jurisdiction of BLR and A226 Union Affiliation and Disaffiliation
Union Affiliation and Disaffiliation Right of union to
Right of union to affiliate and disaffiliateaffiliate and disaffiliate
Right of worker to join, not to join and to disaffiliate Right of worker to join, not to join and to disaffiliate
--- part of the right to SO --- part of the right to SO Jurisprudential rules: Jurisprudential rules: [1] Right to
[1] Right to affilaffiliate includiate includes the es the righright t to disaffilto disaffiliateiate, , righright t to jointo join includes the right not to join
[2] Union has
[2] Union has a a rigright ht to to didisafsaffilfiliatiate, e, but it but it mumust st comcomplply y wiwith th thethe procedure to disaffiliate if such procedure is provided and at the same procedure to disaffiliate if such procedure is provided and at the same
time valid. time valid. [3] An
[3] An affaffiliiliate is ate is nonot t a a crecreatiation on of of a a natnationional al fedfederaeratiotion. n. OnOne e isis independent of the other
independent of the other [4] Both may enter in
[4] Both may enter in a a CBA or CBA or othother er concontratractscts, , and in and in cascase e of of dis
disaffaffiliiliatiation on the the loclocal al ununion ion wilwill l own own ththe e concontratract ct bebecaucause se natnat’l’l federation is only an agent.
federation is only an agent.
*Adamson, Atlas and De La Salle cases are no longer applicable: The *Adamson, Atlas and De La Salle cases are no longer applicable: The amendment of the law provides that both rank and file EEs union and amendment of the law provides that both rank and file EEs union and supervisors union of the same ER may now affiliate with the
supervisors union of the same ER may now affiliate with the same nat’lsame nat’l federation federation Union Security Union Security A249 – basis A249 – basis
Union security provisions are valid Union security provisions are valid
Jurisprudence: Union security provisions do not violate the freedom to Jurisprudence: Union security provisions do not violate the freedom to associate
associate
aa.. clcloossed ed shshoopp b
b.. ununioion n shshopop c.
c. mamaintintenaenance nce of mof membembersershiphip 3 basic concepts
3 basic concepts a. What is the
a. What is the access to the labor market?access to the labor market?
b. What is the condition for continuing employment? b. What is the condition for continuing employment?
c. When is employment lost? c. When is employment lost? Rules:
Rules:
[1] if there is termination, ER must comply with the procedural die [1] if there is termination, ER must comply with the procedural die process. The union’s offer to exempt ER from liability will not lie if ER process. The union’s offer to exempt ER from liability will not lie if ER
does not comply with due process does not comply with due process
[2] Union security provisions applicable to present and future EEs, but [2] Union security provisions applicable to present and future EEs, but not to members of other unions.
not to members of other unions.
*Note amendments: A234-A, A239, and A242-A *Note amendments: A234-A, A239, and A242-A APPROPRIATE BARGAINING UNIT APPROPRIATE BARGAINING UNIT A255 and A256
A255 and A256
Key: definition of Rothenberg, used by Justice Narvasa
Key: definition of Rothenberg, used by Justice Narvasa inin UP v Calleja:UP v Calleja:
[a] composition: all or less than all EEs of a particular ER [a] composition: all or less than all EEs of a particular ER [b] ER equity musrt also be considered (administration of CBA) [b] ER equity musrt also be considered (administration of CBA)
[c] group EEs with a commom interest (with respect to wages, hrs of [c] group EEs with a commom interest (with respect to wages, hrs of
work and othr terms and conditions) work and othr terms and conditions)
Reason for the grouping: To best assure workers’ right to CB & Reason for the grouping: To best assure workers’ right to CB & SOSO UP v Calleja
UP v Calleja – there’s no test – there’s no test or guide provided by LC except the or guide provided by LC except the wordword “ap
“appropropripriateate.” .” But But sinsince ce 1951956, 6, SC SC has has conconsissistentently tly appapplielied d ththee commonality or mutuality of interest test
commonality or mutuality of interest test ..
- Freedom to agree between EE and ER to determine ABU. If not, then - Freedom to agree between EE and ER to determine ABU. If not, then through BLR and NCMB.
through BLR and NCMB. Gen. Rule:
Gen. Rule: Dayotogan and Interphil Dayotogan and Interphil – – CorpCorporatorate e fictfictionion, , treattreated ed asas distinct corporations even if there’s common ownership.
distinct corporations even if there’s common ownership. Exception:
Exception: Phi Philipplippine ine ScouScouts ts VeteVeterans rans casecase – – If If thethere’re’s s perpervasvasiveive commonality, piercing the corporate veil is justified.
commonality, piercing the corporate veil is justified.
*A prior agreement on the composition of a bargaining unit is not *A prior agreement on the composition of a bargaining unit is not binding. Appropriateness of bargaining unit composition may change. binding. Appropriateness of bargaining unit composition may change.
UNION MAJORITY STATUS UNION MAJORITY STATUS
- Union of their own choosing – majority of workers in ABU – negotiate - Union of their own choosing – majority of workers in ABU – negotiate
with ER with ER - Before a
- Before a union can negotiate a CBA with ER:union can negotiate a CBA with ER: [a] union must be legit LO
[a] union must be legit LO
[b] it must represent majority of EEs in the ABU [b] it must represent majority of EEs in the ABU
[c] there must be ER-EE relationship; absent ER-EE rel, there’s no duty [c] there must be ER-EE relationship; absent ER-EE rel, there’s no duty to bargain
to bargain Mechanism:
Mechanism: [A]*Do I [A]*Do I want a want a union? *if union? *if Yes, which Yes, which one?one? [B ] I do not want a union
[B ] I do not want a union Rules: (see A246 and A257)
Rules: (see A246 and A257) [1] CE is
[1] CE is only an inquisitory proceeding, not adversarialonly an inquisitory proceeding, not adversarial [2] There can be
[2] There can be no direct certification, because CE is a statutory policyno direct certification, because CE is a statutory policy that cannot be circumvented
that cannot be circumvented
[3] The law is partial to CE because it’s the most democratic and most [3] The law is partial to CE because it’s the most democratic and most efficient way of settling majority status
2 ways to determine majority status (prior to voluntary recognition) 2 ways to determine majority status (prior to voluntary recognition) - Certification Election (CE)
- Certification Election (CE) - Consent election
- Consent election *Voluntary recognit
*Voluntary recognition (VR) came ion (VR) came in by IRR in by IRR Law Prior to VR
Law Prior to VR
-- TherThere was e was no dno direct irect certicertificaficationtion. Law . Law is pis partiartial to al to CECE
-- A256 (organized establishment, A257 (unorganized), A258 (ER A256 (organized establishment, A257 (unorganized), A258 (ER initiated)
initiated)
Warren case – introduced consent election, but with a limited purpose: Warren case – introduced consent election, but with a limited purpose: to determine majority status only to administer already existing CBA. to determine majority status only to administer already existing CBA. Consent election is bar to CE.
Consent election is bar to CE. A256 – Structure
A256 – Structure
[a] There’s existing CBA or no existing CBA but there is a union [a] There’s existing CBA or no existing CBA but there is a union recognized.
recognized.
[b] Petition for CE in relation to A253-A, filed only within freedom [b] Petition for CE in relation to A253-A, filed only within freedom period.
period.
[c] Petition for CE must be accompanied by substantial support. [c] Petition for CE must be accompanied by substantial support.
Juri
Jurisprusprudencdence: e: [1] [1] PetitPetition ion filefiled d withwithin in freedfreedom om periperiod od and notand not before or after
before or after expirationexpiration..
[2] Substantial support rule need not be shown at the time of filing [2] Substantial support rule need not be shown at the time of filing the petition, but within a reasonable time
the petition, but within a reasonable time thereafter before CEthereafter before CE [3] Withdrawal of signatures has no
[3] Withdrawal of signatures has no effect, CE continueseffect, CE continues A257 – no
A257 – no existing certified bargaining agentexisting certified bargaining agent
A258 – ER requested to bargain & ER doubts majority status A258 – ER requested to bargain & ER doubts majority status Q:
Q: When is CE automatic?When is CE automatic?
[a] In A256, it is automatic if it is filed within freedom period and [a] In A256, it is automatic if it is filed within freedom period and there’s substantial support
there’s substantial support
[b] In A257, election is automatic if a
[b] In A257, election is automatic if a union files a petition for CEunion files a petition for CE Q:
Q: When is CE discretionary?When is CE discretionary? A:
A: CE is discretionary under A256 if even absent substantial support,CE is discretionary under A256 if even absent substantial support, CE will achieve the purpose of the law, which is CB
CE will achieve the purpose of the law, which is CB *ER is a total stranger in CE
*ER is a total stranger in CE
Colg
Colgate-Pate-Palmoalmolive live case case and and SamaSamahan han ng ng mga mga MangManggagagagawa wa casecase – – There is no direct
There is no direct certificationcertification. Neither can . Neither can ER voluntarily recognize theER voluntarily recognize the union because in effect it is a direct certification. In
union because in effect it is a direct certification. In ColgateColgate, the act of , the act of the Labor
the Labor Sec. certifyiSec. certifying ng withwithout conductout conducting CE ing CE violviolated A256. ated A256. InIn Samahan
Samahan, ER’s voluntarily recognizing the union is invalid because in, ER’s voluntarily recognizing the union is invalid because in effect it’s direct
effect it’s direct certificationcertification.. Law After VR
Law After VR
DOLE implemented VT in IRR but provided safeguards: DOLE implemented VT in IRR but provided safeguards:
a.
a. therthere’s oe’s only 1 nly 1 uniounion in tn in the eshe establtablishmishmentent b
b.. ththe ue uninion on is is a La LLOLO c.
c. fact fact of VR of VR is reis reportported to ed to DOLDOLE and E and adveradvertisetisedd In sum,
In sum, - Today
- Today ColgateColgate andand SamahanSamahan cases are still validcases are still valid
- A256 and A257 are still valid and not deemed repealed by the IRR - A256 and A257 are still valid and not deemed repealed by the IRR - Voluntary Recognition (VR) has not
- Voluntary Recognition (VR) has not yet been challenged in courtyet been challenged in court Mechanics of A256:
Mechanics of A256:
*There’s a support but only DOLE can question the veracity of such; no *There’s a support but only DOLE can question the veracity of such; no
other parties can other parties can *A256 and A257 are
*A256 and A257 are union-iniunion-initiated elections (see A212 on tiated elections (see A212 on Legit statusLegit status of petitioner, and also A234-A)
of petitioner, and also A234-A) *A258 is ER initiated
*A258 is ER initiated Mecganics of CE: Mecganics of CE:
*CE must be validly held, because if not the question of run-off does not *CE must be validly held, because if not the question of run-off does not
arise arise
*Majority of the workers cast their votes *Majority of the workers cast their votes
*For a union to win it must garner the majority of the valid votes cast. *For a union to win it must garner the majority of the valid votes cast. Run-off election:
Run-off election: Requisites:Requisites: -- CE CE wawas vs valalididly ly cocondnducuctetedd -- ThTherere we werere 3 e 3 or or momore re chchoioicecess
-- Not oNot one of ne of the cthe choichoices haes had mad majorijority of ty of the vthe valid alid votevotes cass castt -- The cThe combombined ined votevotes of as of all thll the unie unions ons = 50% = 50% of voof votes ctes castast
Votes cast – Important in determining [a] the validity of the run-off Votes cast – Important in determining [a] the validity of the run-off elections, and [b] WON run off elections can be
elections, and [b] WON run off elections can be done (last req’t)done (last req’t)
*Certificate Election is held on a
*Certificate Election is held on a regular business day. CE is valid regular business day. CE is valid eveneven if there’s strike unless it is so pervasive that a substantial number of if there’s strike unless it is so pervasive that a substantial number of workers weren’t able to
workers weren’t able to vote.vote. 3 bars to CE:
3 bars to CE:
[1] Contract Bar Rule (A232) –
[1] Contract Bar Rule (A232) – CBA valid and contract completeCBA valid and contract complete If contract is
If contract is incompleteincomplete, it , it can be completed to can be completed to invoke the contract-bar invoke the contract-bar rule
rule [2] 1 yr
[2] 1 yr bar rule – from the bar rule – from the time elections results were certifiedtime elections results were certified [3] deadlock bar rule – 2
[3] deadlock bar rule – 2 req’ts: *there was effort to bargain but it failed,req’ts: *there was effort to bargain but it failed, and, *that such deadlock had already been submitted for conciliation and, *that such deadlock had already been submitted for conciliation or arbitration
or arbitration
Suspension Rule: refers to
Suspension Rule: refers to prejudicial questionprejudicial question Purpose:
Purpose: to to levlevel el the playthe playing field in ing field in ordorder er to to preprevenvent t undundueue advantage
advantage Ground:
Ground: charge of company domination filed by the union whichcharge of company domination filed by the union which filed the case for ULP
filed the case for ULP COLLECTIVE BARGAINING COLLECTIVE BARGAINING
A250, A251 – designed to implement Consti rights to SO and CB A250, A251 – designed to implement Consti rights to SO and CB A252
A252 A251
A251 – authorizes the parties to a voluntary mode, but it must be– authorizes the parties to a voluntary mode, but it must be expeditious; if but A250 applies
expeditious; if but A250 applies A250
A250– proposal and counter-proposals must be in writing– proposal and counter-proposals must be in writing
-- timtime frame frames are noes are not mandt mandatoatory but mery but merelrely diry directectoryory; if such; if such time frames were not complied, it will not amount to ULP time frames were not complied, it will not amount to ULP -- enentrtry y popoinint t of NCMof NCMB B (A(A23233 3 re re prprivivililegeged comed commumuninicacatitionon::
Nissan case – whatever is
Nissan case – whatever is discussed in a conciliation proceedingdiscussed in a conciliation proceeding cannot be basis for award and to compel one to testify)
cannot be basis for award and to compel one to testify) A252
A252– First part: duty to bargain– First part: duty to bargain
Second part: defines what a negotiable issue is Second part: defines what a negotiable issue is
Jurispruden
Jurisprudence: Negotiable issues may ce: Negotiable issues may either be either be mandatory or permissivemandatory or permissive [a] mandatory issue – refusal to negotiate a mandatory issue results in [a] mandatory issue – refusal to negotiate a mandatory issue results in
ULP; if there’s
ULP; if there’s impasses, strike weapon is availableimpasses, strike weapon is available
[b] permissive issue – refusal to negotiate a permissive issue does not [b] permissive issue – refusal to negotiate a permissive issue does not
result in ULP; strike weapons not
result in ULP; strike weapons not availableavailable
*“Other terms and conditions” as negotiable issue – the proposal or *“Other terms and conditions” as negotiable issue – the proposal or counterproposal must have
counterproposal must have nexusnexus to the nature of work to the nature of work
*The minutes of the negotiation is merely a records and cannot be the *The minutes of the negotiation is merely a records and cannot be the basis of actions. Only the CBA itself can be
basis of actions. Only the CBA itself can be basis.basis. *CBA is a contract in personam and not in rem *CBA is a contract in personam and not in rem UNFAIR LABOR PRACTICE
UNFAIR LABOR PRACTICE
- any act defined by law as ULP (248 and 249) - any act defined by law as ULP (248 and 249)
- designed to redress constitutional and statutory guaranteed rights to - designed to redress constitutional and statutory guaranteed rights to self organization and collective bargaining
self organization and collective bargaining Key: A212, A248 and A249
Key: A212, A248 and A249 A246 and A247
A246 and A247
A248 – interfere, restrain, coerce A248 – interfere, restrain, coerce A249 – restrain, coerce
A249 – restrain, coerce An act is ULP
An act is ULP
[1] if actor is a labor org, or ER [1] if actor is a labor org, or ER [2] the act is
[2] the act is to interfere, restrain or coerceto interfere, restrain or coerce
[3] the act is directed against the right to self organization or collective [3] the act is directed against the right to self organization or collective
bargaining bargaining
*A248 on contracting out: it is ULP if performed by a union member *A248 on contracting out: it is ULP if performed by a union member and has chilling effect
and has chilling effect
*A247 and 248 re violation of CBA: relate to A260; if it’s not
*A247 and 248 re violation of CBA: relate to A260; if it’s not gross andgross and serious violation of economic provisions, it’s not ULP but
serious violation of economic provisions, it’s not ULP but remains to beremains to be a grievance
a grievance
*A248 (a) and 249(a) are bases for the other enumerations of ULP. The *A248 (a) and 249(a) are bases for the other enumerations of ULP. The act is ULP only if it falls in A248 and A249,
act is ULP only if it falls in A248 and A249, Test: [a] Was there a
[b] Did anti-union bias contribute to his decision? (mixed-motive test) [b] Did anti-union bias contribute to his decision? (mixed-motive test) *ULP cannot be compromised!
*ULP cannot be compromised!
On civil and criminal liability: criminal liability can only be invoked On civil and criminal liability: criminal liability can only be invoked after civil liability. Jurisdiction is with the LA, however parties can after civil liability. Jurisdiction is with the LA, however parties can voluntarily confer jurisdiction on
voluntarily confer jurisdiction on voluntary arbitratorsvoluntary arbitrators
Preserve management rights of ER so ULP only delves on the manner of Preserve management rights of ER so ULP only delves on the manner of exercise.
exercise.
STRIKES STRIKES Cons
Consti ti basibasis s – – “pea“peaceful concerteceful concerted d activactivitiesities” ” and and “gua“guaranteranteed ed inin accordance with law”
accordance with law” Purpose and Means Test Purpose and Means Test Peaceful – A264 is the measure Peaceful – A264 is the measure In accordance with law – A263 In accordance with law – A263
A263 – Allowed strikes: [a] ULP, [b] collective bargaining. All others A263 – Allowed strikes: [a] ULP, [b] collective bargaining. All others are illegal
are illegal A264 –
A264 – ProhProhibitibited ed stristrikes: [a] kes: [a] inteinter/inr/intra tra uniounion n dispdisputesutes, , [b] [b] stristrikeskes against industries indispensable to
against industries indispensable to national interestnational interest San Miguel case
San Miguel case – A strike includes a “slow down” or a strike in– A strike includes a “slow down” or a strike in installments.
installments. Procedure for Strike Procedure for Strike
-- File File notinotice oce of intf intentent
-- Strike vote tStrike vote to make sure to make sure there’s no minhere’s no minority strikority strikeses -- Reporting Reporting (to (to determine determine liability)liability)
-- ObseObservanrvance of coolce of cooling off peing off periodriod -- 7-7-daday y babann
-- SpeciSpecial procedual procedure: union bustire: union busting where there’s no ng where there’s no obseobservanrvancece of cooling off period and 7-day ban. Note that the 7-day ban is of cooling off period and 7-day ban. Note that the 7-day ban is distinct and separate from the cooling off
distinct and separate from the cooling off periodperiod *Compliance of the procedure is mandatory
*Compliance of the procedure is mandatory *Liability is individual
*Liability is individual
[a] if union officer – “knowingly participates,” or that he authorized or [a] if union officer – “knowingly participates,” or that he authorized or ratified
ratified
[b] if union member –
[b] if union member – mere participation does not constitute as a groundmere participation does not constitute as a ground for termination (it must be participation + identification)
for termination (it must be participation + identification) LABOR INJUNCTION
LABOR INJUNCTION
Focus: A254, A217, A218 and A264 Focus: A254, A217, A218 and A264 2 rules:
2 rules:
Gen. Rule: Labor injunction is prohibited under certain conditions to Gen. Rule: Labor injunction is prohibited under certain conditions to equalize and level the field (A254)
equalize and level the field (A254)
Exception: Labor injunction is allowed under certain conditions Exception: Labor injunction is allowed under certain conditions (A217, A218, and A264)
(A217, A218, and A264) Procedure: A217 and A218 Procedure: A217 and A218 *NLRC has jurisdiction *NLRC has jurisdiction
*What cannot be dispensed with at all times is hearing *What cannot be dispensed with at all times is hearing *If
*If injinjuncunctiotion n is is wrowrongngly ly ississuedued, , remremediedies es to to aggaggrierieved ved parparty ty isis available
available
Injunction in EO 180 is different from injunction in LC Injunction in EO 180 is different from injunction in LC ARBITRATION
ARBITRATION
2 kinds: [a] voluntary, [b] compulsory 2 kinds: [a] voluntary, [b] compulsory Voluntary arbitration
Voluntary arbitration
It is initiated by agreement of the parties It is initiated by agreement of the parties Juri
Jurisdicsdiction by tion by voluvoluntarntary y arbiarbitratotrator: r: any any and all and all dispdisputes (A260 andutes (A260 and A217)
A217)
Compulsory arbitration Compulsory arbitration
Only labor dispute in an industry indispensable to national interest Only labor dispute in an industry indispensable to national interest Only labor secretary and President arbitrates
Only labor secretary and President arbitrates NLRC cannot arbitrate unless
NLRC cannot arbitrate unless there’s confermentthere’s conferment
If there’s compulsory arbitration, by operation of law, return to work If there’s compulsory arbitration, by operation of law, return to work order is automatic, and compliance is mandatory, and such obligation order is automatic, and compliance is mandatory, and such obligation does not amount to involuntary servitude.
does not amount to involuntary servitude. READ EO 180
