COLLECTIVE BARGAINING

PRINCIPLES IN LAB REL Lectures for 2013 (3rd year) COLLECTIVE BARGAINING 1. AS A RIGHT a. EBA must have a separate and distinct personality that is recognized in law (Either after certification election or voluntary recognition (but there is NO DUTY TO BARGAIN yet) i. Duty to bargain arises on the part of management when there is 1. a union that has majority representation status AND 2. that union has drawn up written proposals and submitted the same to management and that union has possession of proof of representation. (majority representation is different from proof of majority representation)

d. e.

f.

Who performs the obligations therein? It is NOT the union but the warm living bodies of employees. The CBA merely says appropriate bargaining unit. It doesnt mention of members. Because members may leave the workplace and some would come in. if they leave, the CBA is still effective and binding. NOTE: BE SURE TO KNOW THE EXCEPTION because the employee can enter into other agreements with the employer but it is not necessarily an EE-ER contract. For example, in a contract of loan, it is under the civil law. The labor arbiter has NO jurisdiction over that kind of contract.

COLLECTIVE BARGAINING AGREEMENT

1. 2. 3. It is a contract entered into between the employer and the union on terms and conditions of work. Employer is called the pro-active party; the union and the employees are the reactive parties Employer has managerial prerogatives. He has the right to schedule, transfer, promote, demote, reassign workers, etc. for as long as he does not violate the Labor code. As the owner of the enterprise, he has a bundle of rights. On the other hand, the employee has rights contained in the labor code and in the CBA. The employer, in the exercise of his managerial prerogatives must not transgress any of these rights. As a NET RESULT of this relationship, there is NO SUCH THING as BREACH OF THE COLLECTIVE BARGAINING AGREEMENT. This is only true in CBA. Instead of breach, when employees rights are violated, they have a GRIEVANCE. The management does not have a grievance. He will act to relieve himself and assert his rights but it is not called a grievance. Further, if there is a CBA, the employee who has a grievance can invoke his rights under the LC and the CBA which the management has to respect. This is why management would never begin to enter into to CBA because without it, it is the individual contracts of adhesion which prevails.

PRINCIPLES OF CONTRACTS NOT APPLICABLE IN COLLECTIVE BARGAINING

4.

1. PRINCIPLE OF AUTONOMY
a.

b.

Parties are free to enter into contracts and stipulate such terms and conditions for as long as those are not contrary to law, morals, etc. In collective bargaining, if there is already a Collective bargaining agreement enteired into, you do not have the freedom to proceed with your individual EE-ER contract. You have NO FREEDOM OF CONTRACT; NO AUTONOMY OF CONTRACT. For as long as you are part of the BU, the CBA is binding upon you. Contracts are perfected by mere consent unless the law provides a specific form. A CBA is an employer-employee contract. It takes the place of the individual employeremployee contract. It does not start in a vacuum or ab ovo. It replaces as many contracts as there are employees covered in the CBA. Contracts are binding mutually, equally between the parties and only parties privy to the contract except if there is a stipulation pour autrui. In collective bargaining, even if you were not yet an employee at the time the CBA was entered into, but when you become part of the bargaining unit, the CBA is binding on you. Who signs the CBA? The union.

5.

6. 7.

2. PRINCIPLE OF CONSENSUALITY
a. b.

WHEN RIGHT TO COLLECTIVE BARGAINING ARISES and EMPLOYERS DUTY TO BARGAIN ARISES
1. 2. Landmark cases: a. KIOK LOY (SWEDISH ICE CREAM) V. NLRC b. GENERAL MILLING V. CA In the case of Kiok Loy, the mechanics of CB is set in motion only when the ff. jurisdictional preconditions are present: a. Possession of the status of majority representation of the employees representative in accordance with any of the means of selection or designation provided for by the labor code b. Proof of majority representation and c. A demand to bargain under Article 251 (a) of the new labor code. In this case of Kiok Loy, a companys refusal to make counter proposal if

3. PRINICPLE OF MUTUALITY
a.

b.

c.

considered in relation to the entire bargaining process may indicate bad faith and this is especially true where the unions request for a counter proposal is left unanswered. 3. Fr. Gus thinks this doctrine was amended by Article 242 because from the moment the union is declared as the EBA, he can demand copies of the latest audited financial statements. RESULT OF THE FAILURE TO BARGAIN in the case of kiok loy, it imposed the proposals presented by the EBA as the CBA of the union because of the failure of the management to give counter-proposals. An erring party should not be allowed to resort to impunity to schemes feigning negotiations by going through empty gestures.

have made a counter proposal within 10 day from such receipt. For such failure, the SC affirmed the NLRCs decision to make the union draft of CBA as the CBA of the employees. (to fr. Gus, this defies not only simple logic but even all canons of contracts; he though this was a wild aberration of jurisprudence but this was reiterated in General Milling case) 2.

4.

DIVINE WORD UNIVERSITY OF TACLOBAN V. SECRETARY there was

bad faith on the part of the university because it surreptitiously filed the petition for CE and yet during said conference, ti committed itself to sit down with the union. The university tried to preempt the conference which would have legally foreclosed its right to file the petition for certification election. In so doing, the university failed to act in accordance with article 252 which defines the meaning of the duty to bargain collectively as the performance of a mutual obligation to meet and convene promptly and expeditiously in good faith. When the university agreed to sit down with the union, it clearly indicates that it recognized the union as the bargaining representative of the employees and is therefore estopped from questioning the majority status of the said union.

PHASES IN COLLECTIVE BARGAINING

1. 2. 3.

NEGOTIATION meet promptly and expeditiously; in good faith; for the purpose of concluding a CBA ADMINISTRATION meet promptly and expeditiously; in good faith; for the purpose of settling disputes SUBSEQUENT RENEGOTIATION PHASE meet promptly and expeditiously; in good faith; for the purpose renegotiating terms and conditions of work Landmark case: REPUBLIC SAVINGS BANK V. CIR Collective bargaining does not end with the conclusion of a CBA. NOTE: Collective bargaining does not end with the conclusion of a CBA. For example, when you adjust grievances because of controversies arising from the CBA, that is still part of collective bargaining. The 3 phases have different contents.

3.

BRADMAN V. CIR SURFACE BARGAINING; parties meet on time but

there is no agreement that is reached. The SC ruled that while the law does not compel the parties to reach an agreement, it does contemplate that both parties will approach the negotiation with an open mind and make a reasonable effort to reach a common ground of agreement.

NEGOTIATION PHASE
1.

The duty to bargain collectively is enunciated in article 252. There are 3 positive duties: 1. To meet and convene promptly and expeditiously 2. Meet 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 proposal for adjusting any grievances of questions arising under such agreement 3. Executing a contract incorporating such agreements if requested by either party 2 negative duties: a. Such duty does not compel any party to agree to a proposal or b. To make any concession. (the only duty is to SIT AND BARGAIN; no one can force a person to enter into an agreement)

4.

BOULWARISM negotiating with other

people other than the bargaining representative. This is to put pressure to the union to agree on the counterproposal of the management. Note: there is a difference between BARGAINING REPRESENATIVE and EXCLUSIVE BARGAINING AGENT. EBA it refers to the legitimate labor organization; BARGAINING REP it can mean the labor organization, any officer or agent of such organization WON employed by the employer; it is the warm living bodies in the labor organization. This is why the management should only bargain with the bargaining rep and with no one else.

EXAMPLES OF BAD FAITH BARGAINING

1.

5.

NESTLE V. CA If you keep on bargaining

not to bargain, you are actually bargaining. This is NOT bad faith bargaining because SC says the only bad faith bargaining is when you do not say anything and you just keep quiet. Here, the management firms stand

KIOK LOY V. NLRC AND GENERAL MILLING V. CA Kiok loy refused clearly
or did not acknowledge receipt of the proposal which under article 250, he should

against the issue of the retirement plan did not mean it was bargaining in bad fait because it had the right to insist on its position.

2.

Everything is cumulated; CBA is cumulative. In this phase, you do not terminate, modify or maintain the status quo. The old CBA continues to govern the parties and then you are re-negotiating for a new CBA while you are administering the old CBA which is automatically holding over.

NOTES ON BARGAINING:
1. 2.

3.

4.

If the proposal or demands are very unreasonable, it should NOT nullify the bargaining negotiation. If for example, you object to the membership of the negotiating panel of the opposite party, you cannot just leave because that is refusal to bargain. If the union insists on something that is not related to the terms and conditions of work, like when the management decide to sell the company and gives the union the right of first refusal, that is NTO terms and conditions of work so it is not within this code of bargaining. There is NO DUTY TO BARGAIN. The duty to bargain only covers MANDATORY SUBJECTS OF BARGAINING terms and conditions of work that are within the bargaining unit; not those of other BU but only the BU that is the subject matter of the negotiation. i.e. retirement benefits.

PROVISIONS IN THE LABOR CODE WHERE THERE IS DUTY TO BARGAIN

1. ARTICLE 124 INVOCATION OF THE GRIEVANCE PROCEDURE OF THE CBA ON THE ISSUE OF WAGE DISTORTION

Art. 124 . Where the application of any prescribed wage increase by virtue of a law or wage order issued by any Regional Board results in distortions of the wage structure within an establishment, the employer and the union shall negotiate to correct the distortions. Any dispute arising from wage distortions shall be resolved through the grievance procedure under their collective bargaining agreement and, if it remains unresolved, through voluntary arbitration. Unless otherwise agreed by the parties in writing, such dispute shall be decided by the voluntary arbitrators within ten (10) calendar days from the time said dispute was referred to voluntary arbitration.
NOTE: i. Wage distortion occurs when you have a workplace with a hierarchy of employees on different wage levels. If there is hierarchy and an order of increase in wage which does not apply to all of them, the application results in elimination or severe contraction of wage differences. How is that settled? File a grievance if there is a CBA. Once there is agrievance, the employr has the obliation to meet promptly and expeditiously to adjust the grievance.

DUTY TO BARGAIN WHEN THERE EXISTS A CBA (article 253)

1. 2.

3.

To maintain the status quo o you cannot change the CBA. You keep it that way Neither party shall terminate nor modify such CBA during its lifetime o There is an option though during the freedom period that upon agreement, they can serve a written notice to terminate and modify the agreement. You can re-negotiate actually in advance the terms and conditions during the freedom period. o I the union during the freedom period submits a proposal tot the employer and the employer meets expeditiously in good faith for the purpose of the CBA, it does so at his own risk. This is because if there is a petition for cert. election that is filed and the union na iyang kanegotiate did not win, he enters another CBA again. Good thing if no petition is filed. This means, the old CBA continues to be effective until a new CBA is concluded or arrived at. There is a holdover provided for by the law. May submit bargaining proposals during the 50day freedom period. o Here, the duty to respond within 10 day after receipt of the bargaining proposal is not operative. The duty to respond is only permissive and NOT mandatory. 2.

ii.

iii.

iv. v.

Case: REPUBLIC SAVINGS BANK V. CIR Letter to the president was treated as a grievance. The president should have attended to it immediately. In an instance where the grievance is NOT arbitrable, like when there is violation of the right to first refusal, that is NOT a grievance. Your remedy is to go to the regular courts. There can only be a grievance if it relates to a mandatory subject of bargaining. However, even if the matter is not arbitrable, the labor arbiter is given the first opportunity to determine the issue. He can either dismiss it or take cognizance of the issue. The next step after the grievance procedure is voluntary arbitration. If the voluntary arbitrator insists on his jurisdiction, he will continue to hear the case and the employers remedy then is to go to SC via a petition for certiorari.

RENEGOTIATION PHASE 1. When the 5 year period of the CBA is reached, during the 60 day freedom period, you are allowed to do renegotiation.

ARTICLE 251 DUTY TO BARGAIN IN THE ABASENCE OF CBA

NOTE: i.

Art 251. Duty Bargain Collectively in the Absence of Collective Bargaining Agreements. 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 employer and the representatives of the employees to bargain collectively in accordance with the provisions of this Code. This is a USELESS PROVISION. There is NO CBA, therefore, there is NO DUTY TO BARGAIN :0
OF DUTY TO DURING THE

there is no obligation there or there is no duty. Why? Because there might be a petition for certification election and the incumbent bargaining agent may be change and the new one will want to negotiate for the new CBA because they dont want the old CBA which is not the product of their own negotiation. So there is no obligation during the 60-days it is permissive not mandatory. 5. TERMS OF AGREEMENT A COLLECTIVE BARGAINING

3.

ARTICLE 252 MEANING BARGAIN COLLECTIVELY NEGOTIATION PHASE

Art. 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.
4. ARTICLE 253 DUTY TO BARGAIN DURIGN THE ADMINISTRATION PHASE

Art. 253. Duty to bargain collectively when there exists a collective bargaining agreement. When there is a collective bargaining agreement, the duty to bargain collectively shall also mean that neither party shall terminate nor modify such agreement during its lifetime. However, either party can serve a written notice to terminate or modify the agreement at least sixty (60) days prior to its expiration date. It shall be the duty of both parties to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60-day period and/or until a new agreement is reached by the parties.
There are 3 instances there of the duty that you have to pay attention to: a. The duty not to terminate or modify the contract. b. The duty to attend to grievances precisely to maintain the CBA. c. Then there is the option to renew the contract even before the contract is ended and that is during the 60-day that is not a duty because the employer is free to bargain for the next contract but

Art. 253-A. Terms of a collective bargaining agreement. Any Collective Bargaining Agreement that the parties may enter into shall, insofar as the representation aspect is concerned, be for a term of five (5) years. No petition questioning the majority status of the incumbent bargaining agent shall be entertained and no certification election shall be conducted by the Department of Labor and Employment outside of the sixty-day period immediately before the date of expiry of such fiveyear term of the Collective Bargaining Agreement. All other provisions of the Collective Bargaining Agreement shall be renegotiated not later than three (3) years after its execution. Any agreement on such other provisions of the Collective Bargaining Agreement entered into within six (6) months from the date of expiry of the term of such other provisions as fixed in such Collective Bargaining Agreement, shall retroact to the day immediately following such date. If any such agreement is entered into beyond six months, the parties shall agree on the duration of retroactivity thereof. In case of a deadlock in the renegotiation of the Collective Bargaining Agreement, the parties may exercise their rights under this Code. (As amended by Section 21, Republic Act No.
6715, March 21, 1989) NOTE: i.

ii.

the term of the CBA is five years then you agree on the wage rate, hours of work and others for all those five year. Now it is customary to have a yearly increase in wages by a CBA so there is a there is a 1st, 2nd, 3rd, 4th, & 5th year increase normally that what happens. Now, it says however all other provisions you have an option before the 3rd year ends that the remaining 2 years be re-negotiated. This is what happened in the General Milling case General Milling refused to negotiate the last 2 years because they said the union has already been rejected by the employees. The SC said you violated your duty to bargain collectively because you did not sit down to re-negotiate the last 2 years. Now, also in that provision it says the CBA

of the CBA shall be renegotiated not later than 3 years after its execution, so

iii.

remains in effect even after the CBA has ended and up to when? Until the new
CBA has entered into. Sa ato pa while you

are already negotiating a new CBA after the 60-day freedom period that means all the duties that are concomitant in the collective bargaining in the negotiation phase is transfer to you, you must also administer an existing expired CBA, so all the duties in the 2nd phase which is the administration phase is also carried. And you continue still to negotiate the new CBA you can be meeting grievances in the old CBA and at the same time you are also negotiating. that is the most troublesome phasethe renegotiation phase because you are already administering the CBA and still you are negotiating a new one.