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COLLECTIVE BARGAINING

PRINCIPLES IN LAB REL Lectures for 2013 (3
rd
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)

PRINCIPLES OF CONTRACTS NOT APPLICABLE IN
COLLECTIVE BARGAINING

1. PRINCIPLE OF AUTONOMY
a. 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.
b. 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.

2. PRINCIPLE OF CONSENSUALITY
a. Contracts are perfected by mere consent
unless the law provides a specific form.
b. A CBA is an employer-employee contract. It
takes the place of the individual employer-
employee contract. It does not start in a
vacuum or ab ovo. It replaces as many
contracts as there are employees covered in
the CBA.

3. PRINICPLE OF MUTUALITY
a. Contracts are binding mutually, equally
between the parties and only parties privy to
the contract except if there is a stipulation
pour autrui.
b. 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.
c. Who signs the CBA? The union.
d. Who performs the obligations therein? It is
NOT the union but the warm living bodies of
employees.
e. The CBA merely says „appropriate bargaining
unit‟. It doesn‟t mention of members.
Because members may leave the workplace
and some would come in. if they leave, the
CBA is still effective and binding.
f. 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. It is a contract entered into between the employer
and the union on terms and conditions of work.
2. Employer is called the “pro-active party”; the union
and the employees are the “reactive parties”
3. Employer has „managerial prerogatives‟. He has the
right to schedule, transfer, promote, demote, re-
assign 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.
4. 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.
5. 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.
6. The management does not have a grievance. He will
act to relieve himself and assert his rights but it is not
called a grievance.
7. 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.

WHEN RIGHT TO COLLECTIVE BARGAINING
ARISES and EMPLOYER’S DUTY TO BARGAIN
ARISES
1. Landmark cases:
a. KIOK LOY (SWEDISH ICE CREAM) V. NLRC
b. GENERAL MILLING V. CA
2. 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 company‟s
refusal to make counter proposal if
considered in relation to the entire
bargaining process may indicate bad faith
and this is especially true where the union‟s
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.
4. 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.

PHASES IN COLLECTIVE BARGAINING
1. NEGOTIATION  meet promptly and expeditiously; in
good faith; for the purpose of concluding a CBA
2. ADMINISTRATION meet promptly and
expeditiously; in good faith; for the purpose of
settling disputes
3. 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.

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)

EXAMPLES OF BAD FAITH BARGAINING

1. 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
have made a counter proposal within 10 day
from such receipt. For such failure, the SC
affirmed the NLRC‟s 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. 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.

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.

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.

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 firm‟s stand
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.

NOTES ON BARGAINING:
1. If the proposal or demands are very
unreasonable, it should NOT nullify the
bargaining negotiation.
2. 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.
3. 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.
4. 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.

DUTY TO BARGAIN WHEN THERE EXISTS A CBA (article
253)
1. To maintain the status quo
o you cannot change the CBA. You keep it
that way
2. 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 ka-
negotiate 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 hold-
over provided for by the law.
3. 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.

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

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.
ii. 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.

Case: REPUBLIC SAVINGS BANK V. CIR
Letter to the president was treated as a
grievance. The president should have
attended to it immediately.
iii. 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.
iv. There can only be a grievance if it relates to
a mandatory subject of bargaining.
v. 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 employer‟s
remedy then is to go to SC via a petition for
certiorari.

2. ARTICLE 251 DUTY TO BARGAIN IN THE
ABASENCE OF CBA

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.
NOTE:
i. This is a USELESS PROVISION. There is NO
CBA, therefore, there is NO DUTY TO
BARGAIN :0

3. ARTICLE 252 MEANING OF DUTY TO
BARGAIN COLLECTIVELY DURING THE
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
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 don‟t 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 A COLLECTIVE BARGAINING
AGREEMENT
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 five-
year 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. 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 1
st
,
2
nd
, 3
rd
, 4
th
, & 5
th
year increase normally that
what happens.
ii. Now, it says however all other provisions
of the CBA shall be renegotiated not
later than 3 years after its execution, so
you have an option before the 3
rd
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.
iii. Now, also in that provision it says the CBA
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
2
nd
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 phasethe “re-
negotiation phase because you are already
administering the CBA and still you are
negotiating a new one.