Collective Bargaining and Role of Laissez-faire Government

Government government should be in

Alternative Dispute Resolution shouldn’t be total control
involved and make sure
Atty. Josephus B. Jimenez wealth is
distributed
evenly.
Tips for midterm View of Wealth Wealth Wealth should
motivates be distributed
1. The Philosophy of collective bargaining: its relation to
people to work evenly.
social justice, communism and capitalism

CAPITALISM SOCIALISM / If you don’t No rich and no

COMMUNISM work you will be poor.
Book Adam Smith Karl Marx poor.
Wealth of Communist
Nations Manifesto & Das Why do we need to study Collective Bargaining?
Capital
What is most Individual Society as a  Because the Filipinos are disconnected with the
important for worker is most whole is most traditional modes of disputes resolution, which
business important important are very slow, inefficient, expensive and
adversarial.
Workers work All people  Because BIPARTITE negotiations and
harder when should be equal bargaining are better ways to arrive at mutually
they make
acceptable solutions to dispute, without the
profit
interference of the third parties.
 Because legalistic, highly technical and
Companies do
better when procedural inanities are no longer responsive to
they make the call for HUMANE settlement of issues in
profit what we all aspire for “A JUST A HUMANE
 SOCIETY” of mutual respect and 3. Conditions precedent and condition sine qua non to
understanding, empathy and compassion, rather collective bargaining.
than antagonism and adversarial tactics.
Employer- employee relationship between the
member of the ABU and the company
2. The Difference between collective bargaining and
compulsory arbitration - The standard four -way test
1. The hiring
2. The payment of wages
COMPILSORY FREE COLLECTIVE
3. The power of control
ARBITRATION BARGAINING
4. The power of dismissal
The state thru the Labor & Capital
government imposes Negotiate on
all rules and decides - JBJ’s 3 C’s as test
all disputes Government comes in 1. Contract – the agreement – to do so that the
only in deadlocks employer shall give or
affecting national 2. Compensation – regardless of how paid
interests 3. Control – power to disciple & dismiss

Terms & conditions –

if deadlock- Presentation of a formal notice to negotiate, or a
government demand to bargain
intervenes
- Under Art. 256 of the Labor Code, “when a party
Employer & The states give
desires to negotiate an agreement, it shall serve a
employees just freedom
WRITTEN NOTICE upon the other party.
comply & have no
participation With a statement of its proposals
This is mandatory, as an essential
conditions.
- The other party shall make a REPLY thereto not **** Once the conditions for collective bargaining
later than ten (10) calendar days from receipt of are complied with, there arises the duty to
such NOTICE. bargain.
This is also mandatory
But this party is not obliged to include a - Once the Union has established the presence of
statement of counter proposals the three conditions, the Employer has the duty to
bargain
Certified status of the SEBA, having proven its
The management must meet the union
majority status
promptly and expeditiously,
- Management has no obligation to negotiate if the Meet the union in good faith,
union has no proof of majority status Meet the union for the purpose of
NO PROOF of winning in certification or Negotiating an agreement, with respect to
consent elections wages, hours of work and other terms of
Or having been voluntarily recognized by employment
the employer in accordance with law Including grievance system
- If the Union established a majority status, the
employer cannot refuse to negotiate - And refusal to negotiate is, in effect, a violation of
If the dole has certified the LLO as the the duty to bargain, a form to file a Notice of
SEBA Strike and criminal act.
If the company has voluntarily recognized ]
the seba
4. Procedures and steps, technique and approaches in cba
negotiation

1. Union organizing and legitimizing

2. Choosing the seba
3. Bargaining negotiations
4. Implementing the cba
 5. Resolving disputes: Internal 1. LO – Labor organization means any union or
6. Resolving disputes: external association of employees which exists in whole
Article 250. Procedure in collective bargaining. The following
or in part for the purpose of collective
procedures shall be observed in collective bargaining: bargaining or of dealing with employers
When a party desires to negotiate an agreement, it shall serve a concerning terms and conditions of
written notice upon the other party with a statement of its proposals. employment.
The other party shall make a reply thereto not later than ten (10)
calendar days from receipt of such notice;
Should differences arise on the basis of such notice and reply, either 2. LLO- Legitimate labor Organization, a union
party may request for a conference which shall begin not later than ten that is duly registered with DOLE and is imbued
(10) calendar days from the date of request. with a juridical personality to exercise the right
If the dispute is not settled, the Board shall intervene upon request of to seek the status of SEBA for purposes of
either or both parties or at its own initiative and immediately call the
parties to conciliation meetings. The Board shall have the power to COLLECTIVE BARGANING.
issue subpoenas requiring the attendance of the parties to such
meetings. It shall be the duty of the parties to participate fully and 3. SEBA- Sole & Exclusive Bargaining Agent, is
promptly in the conciliation meetings the Board may call;
that LLO that has acquired the right to represent
During the conciliation proceedings in the Board, the parties are
prohibited from doing any act which may disrupt or impede the early the ABU either by 1. Direct Recognition; 2 direct
settlement of the disputes; and certifications; 3 certification election or 4 re-run
The Board shall exert all efforts to settle disputes amicably and election; or run-off election
encourage the parties to submit their case to a voluntary arbitrator. (As 4. ABU- Appropriate bargaining unit, that body of
amended by Section 20, Republic Act No. 6715, March 21, 1989)
homogenous employees who are grouped
together to be represented by a SEBA in
collective bargaining. They will benefit from the
CBA, outcome of collective bargaining.
5. Explain the meaning of LO, LLO, SEBA,
5. CBA- Collective Bargaining agreement, the
ABU, CBA, USC (Union Security Clause),
contract resulting from collective bargaining,
Freedom period, contract bar, deadlock
containing TERMS and CONDITIONS consisting
bar, return, run-off, deadlock.
of economic provisions, political provisions,
grievance machinery & arbitration.
 with three or more unions in contention, where
6. USC - Union Security Clause- it is the such certification election or consent election
agreement between the company and the SEBA result in none of the contending unions
(the union) to protect the security tenure of the receiving the majority of the valid votes cast;
SEBA within 5 years until the freedom period. provided, that the total number of votes for all
7. Freedom period- pertains to the last 60 days contending unions, if added is at least fifty
in the five-year lifetime of a CBA. percent (50%) of the number of valid votes
8. Contact bar- a petition for certification election cast.
may not be filed when a CBA between the 12. Deadlock - is defined as the
employer and a duly recognized or certified "counteraction of things producing entire
bargaining agent has been registered with the stoppage: a state of inaction or of neutralization
BIR in accordance with the Labor Code. Where caused by the opposition of persons or of
the CBA duly registered, a petition for factions.
certification election may be filed within the 60- - There is a deadlock when there is a "complete
day freedom period prior to its expiry. blocking or stoppage resulting from the action of
equal and opposed forces; as, the deadlock of a
9. Deadlock bar – petition for certification jury or legislature."
election may not be entertained when a
bargaining deadlock to which an incumbent or
certified bargaining agent is a party has been
submitted to conciliation or has become the
subject od a valid notice of strike or lockout.
10. Re-run – failure on certification election 6. Meaning of duty to bargain when there is
declared by the election officer; tie between two no CBA; Duty to Bargain when there is a
unions; tie between a union and no union. CBA; Surface bargaining, Blue-sky
11. Run-off- refers to an election between bargaining, refusal to bargain, bargaining
the labor union receiving the two highest votes in bad faith, Boulwarism
in a certification election or consent election
Article 251. Duty to bargain collectively in the absence of collective - Where the employer did not even bother to submit
bargaining agreements. In the absence of an agreement or other
an answer to the bargaining proposals of the
voluntary arrangement providing for a more expeditious manner of
collective bargaining, it shall be the duty of employer and the union, there is a clear evasion of the duty to
representatives of the employees to bargain collectively in accordance bargain collectively.
with the provisions of this Code. - Petitioner has not, at any instance evinced GOOD
Article 252. Meaning of duty to bargain collectively. The duty to
FAITH or willingness to discuss freely and fully the
bargain collectively means the performance of a mutual obligation to
meet and convene promptly and expeditiously in good faith for the claims and demands set forth by unions; much
purpose of negotiating an agreement with respect to wages, hours of less justify its objections thereto.
work and all other terms and conditions of employment including - By its acts, no less than its action which bespeak
proposals for adjusting any grievances or questions arising under such
agreement and executing a contract incorporating such agreements if its in sincerity, it has forfeited whatever rights it
requested by either party but such duty does not compel any party to could have asserted as an employer.
agree to a proposal or to make any concession.
Article 253. Duty to bargain collectively when there exists a collective Boulwarism – considered as bargaining in bad faith
bargaining agreement. When there is a collective bargaining and is tantamount to refusal to negotiate, which is an
agreement, the duty to bargain collectively shall also mean that neither ULP.
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.
Surface bargaining – going through the motions of IMPORTANT CASES
negotiating without any legal intent to reach an 1. The Kiok Loy and the Divine World
agreement. University case
Blue-sky bargaining- or making exaggerated or Collective bargaining which is defined as negotiations
unreasonable proposals towards a collective agreement,6 is one of the democratic
frameworks under the New Labor Code, designed to
Refusal to bargain- stabilize the relation between labor and management and
Bargaining in bad faith to create a climate of sound and stable industrial peace. It
is a mutual responsibility of the employer and the Union
and is characterized as a legal obligation. So much so that Court of Industrial Relations 12 wherein it was further ruled
Article 249, par. (g) of the Labor Code makes it an unfair that "while the law does not compel the parties to reach an
labor practice for an employer to refuse "to meet and agreement, it does contemplate that both parties will
convene promptly and expeditiously in good faith for the approach the negotiation with an open mind and make a
purpose of negotiating an agreement with respect to reasonable effort to reach a common ground of agreement
wages, hours of work, and all other terms and conditions of 2. Divine World University case
employment including proposals for adjusting any
grievance or question arising under such an agreement and If a collective bargaining agreement has been duly
executing a contract incorporating such agreement, if registered in accordance with Article 231 of the Code, a
requested by either party. petition for certification election or a motion for
While it is a mutual obligation of the parties to bargain, the intervention can only be entertained within sixty (60) days
employer, however, is not under any legal duty to initiate prior to the expiry date of such agreement."
contract negotiation.7 The mechanics of collective
bargaining is set in motion only when the following These provisions make it plain that in the absence of a
jurisdictional preconditions are present, namely, (1) collective bargaining agreement, an employer who is
possession of the status of majority representation of the requested to bargain collectively may file a petition for
employees' representative in accordance with any of the certification election any time except upon a clear showing
means of selection or designation provided for by the Labor that one of these two instances exists: (a) the petition is
Code; (2) proof of majority representation; and (3) a filed within one year from the date of issuance of a final
demand to bargain under Article 251, par. (a) of the New certification election result or (b) when a bargaining
Labor Code . ... all of which preconditions are undisputedly deadlock had been submitted to conciliation or arbitration
present in the instant case. or had become the subject of a valid notice of strike or
A Company's refusal to make counter proposal if lockout.
considered in relation to the entire bargaining process,
may indicate bad faith and this is specially true where the As the Court earlier observed, there has not been a
Union's request for a counter proposal is left unanswered. "reasonable effort at good faith bargaining" on the part of
in the Herald Delivery Carriers Union (PAFLU) vs. Herald the University. While DWUEU-ALU was opening all possible
Publications 11 the rule had been laid down that "unfair avenues for the conclusion of an agreement, the record is
labor practice is committed when it is shown that the replete with evidence on the University’s reluctance and
respondent employer, after having been served with a thinly disguised refusal to bargain with the duly certified
written bargaining proposal by the petitioning Union, did bargaining agent, such that the inescapable conclusion is
not even bother to submit an answer or reply to the said that the University evidently had no intention of bargaining
proposal This doctrine was reiterated anew in Bradman vs.
with it. Thus, while the Court recognizes that technically, A CBA is a contract executed upon request of either
the University has the right to file the petition for the employer or the exclusive bargaining
certification election as there was no bargaining deadlock representative incorporating the agreement reached
to speak of, to grant its prayer that the herein assailed after negotiations with respect to wages, hours of
Orders be annulled would put an unjustified premium on
work and all other terms and conditions of
bad faith bargaining.
employment, including proposals for adjusting any
grievances or questions arising under such
Bad faith on the part of the University is further
agreement. The primary purpose of a CBA is the
exemplified by the fact that an hour before the start of the stabilization of labor-management relations in order to
May 10, 1988 conference, it surreptitiously filed the create a climate of a sound and stable industrial
petition for certification election. And yet during said peace. In construing a CBA, the courts must be
conference, it committed itself to "sit down" with the practical and realistic and give due consideration to
Union. Obviously, the University tried to preempt the the context in which it is negotiated and the purpose
conference which would have legally foreclosed its right to which it is intended to serve
file the petition for certification election. In so doing, the
University failed to act in accordance with Art. 252 of the Article 253-A has a two-fold purpose. One is to
Labor Code which defines the meaning of the duty to promote industrial stability and predictability.
bargain collectively as "the performance of a mutual Inasmuch as the agreement sought to promote
obligation to meet and convene promptly and expeditiously industrial peace at PAL during its rehabilitation, said
in good faith." Moreover, by filing the petition for agreement satisfies the first purpose of Article 253-A.
certification election while agreeing to confer with the The other is to assign specific timetables wherein
DWUEU-ALU, the University violated the mandate of Art.
negotiations become a matter of right and
19 of the Civil Code that" (e)very person must, in the
requirement. Nothing in Article 253-A, prohibits the
exercise of his rights and in the performance of his duties,
parties from waiving or suspending the mandatory
act with justice, give everyone his due, and observe
honesty and good faith." timetables and agreeing on the remedies to enforce
the same.

3. The case of Rivera vs Espiritu on cba ART. 253-A. Terms of a Collective Bargaining
moratorium Agreement. Any Collective Bargaining Agreement that
the parties may enter into shall, insofar as the and put in abeyance the limit on the representation
representation aspect is concerned, be for a term of period.
five (5) years. No petition questioning the majority
In sum, we are of the view that the PAL-PALEA
status of the incumbent bargaining agent shall be
agreement dated September 27, 1998, is a valid
entertained and no certification election shall be
exercise of the freedom to contract. Under the
conducted by the Department of Labor and
principle of inviolability of contracts guaranteed by the
Employment outside of the sixty-day period
Constitution,[25 the contract must be upheld.
immediately before the date of expiry of such five-
year term of the Collective Bargaining Agreement. All
other provisions of the Collective Bargaining
4. Chartered bank case on blue sky
Agreement shall be renegotiated not later than three
bargaining and surface bargaining
(3) years after its execution. Any agreement on such
other provisions of the Collective Bargaining We, likewise, do not agree that the Union is guilty of ULP
Agreement entered into within six (6) months from for engaging in blue-sky bargaining or making exaggerated
the date of expiry of the term of such other provisions or unreasonable proposals. The Bank failed to show that
as fixed in such Collective Bargaining Agreement, the economic demands made by the Union were
exaggerated or unreasonable. The minutes of the meeting
shall retroact to the day immediately following such
show that the Union based its economic proposals on data
date. If any such agreement is entered into beyond
of rank and file employees and the prevailing economic
six months, the parties shall agree on the duration of benefits received by bank employees from other foreign
the retroactivity thereof. In case of a deadlock in the banks doing business in the Philippines and other branches
renegotiation of the collective bargaining agreement, of the Bank in the Asian region.
the parties may exercise their rights under this Code.
We also do not agree that the agreement violates the
In sum, we find that the public respondent did not act with
five-year representation limit mandated by Article
grave abuse of discretion amounting to lack or excess of
253-A. Under said article, the representation limit for
jurisdiction when it issued the questioned order and
the exclusive bargaining agent applies only when [Link] the approval of the CBA and the release
there is an extant CBA in full force and effect. In the of the signing bonus did not estop the Union from pursuing
instant case, the parties agreed to suspend the CBA its claims of ULP against the Bank, we find that the latter
did not engage in [Link], likewise, hold that the Union is should not be allowed to resort with impunity to schemes
not guilty of ULP. feigning negotiations by going through empty gestures.17
Thus, by imposing on GMC the provisions of the draft CBA
5. The general milling case on refusal to proposed by the union, in our view, the interests of equity
bargain and fair play were properly served and both parties
regained equal footing, which was lost when GMC thwarted
the negotiations for new economic terms of the CBA.
ART. 253. Duty to bargain collectively when there exists a
collective bargaining agreement. – .... It shall be the duty 6. Violation of a no strike clause: pal vs Drilon
of both parties to keep the status quo and to continue in Under Art. 263 of the Labor Code, the Labor Secretary's
full force and effect the terms and conditions of the authority to resolve a labor dispute within 30 days from the
existing agreement during the 60-day period [prior to its date of assumption of jurisdiction, encompasses only the
expiration date] and/or until a new agreement is reached issues in the dispute, not the legality or illegality of any
by the parties. strike that may have been resorted to in the meantime.

the jurisdiction to decide the legality of strikes and lock-

The provision mandates the parties to keep the status quo outs is vested in Labor Arbiters, not in the Secretary of
while they are still in the process of working out their Labor. Art. 217, par. a, subpar. 5 of the Labor Code
respective proposal and counter proposal. The general rule provides:
is that when a CBA already exists, its provision shall
continue to govern the relationship between the parties,
until a new one is agreed upon. The rule necessarily Art. 217. Jurisdiction of Labor Arbiters and the
presupposes that all other things are equal. That is, that Commission.
neither party is guilty of bad faith. However, when one of
the parties abuses this grace period by purposely delaying
the bargaining process, a departure from the general rule (a) The Labor Arbiters shall have the original and exclusive
is warranted. jurisdiction to hear and decide within thirty (30) working
days after submission of the case by the parties for
Under ordinary circumstances, it is not obligatory upon decision, the following cases involving all workers, whether
either side of a labor controversy to precipitately accept or agricultural or non- agricultural.
agree to the proposals of the other. But an erring party
 agreement at least sixty (60) days prior to its expiration
date (known as the "freedom period") it shall nevertheless
xxx xxx xxx
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 freedom period and/or
5. Cases arising from any violation of Article 265 of this until a new agreement is reached by them (Art. 253, Labor
code, including questions involving the legality of strikes Code).
and lock-outs. (Emphasis supplied.)

2. It violated the no-strike provision of the CBA, to wit:

In ruling on the legality of the PALEA strike, the Secretary
of Labor acted without or in excess of his jurisdiction.
The Association agrees that there shall be no strikes, walk
outs, stoppage, or slowdown of work, or any other form of
There is merit in PAL's contention that the Labor Secretary interference with any of the operations of the Company
erred in declaring the strike valid and in prohibiting PAL during the period between the signing of the Agreement up
from taking retaliatory or disciplinary action against the to September 30, 1989. (Emphasis supplied, p-118, Rollo.)
strikers for the damages suffered by the Airline as a result
of the illegal work stoppage.
The NCMB had declared the notice of strike as "appropriate
for preventive mediation." The effect of that declaration
PALEA's strike on January 20, 1989 was illegal for three (3) (which PALEA did not ask to be reconsidered or set aside)
reasons: was to drop the case from the docket of notice of strikes,
as provided in Rule 41 of the NCMB Rules, as if there was
no notice of strike. During the pendency of preventive
1. It was premature for there was an existing CBA which mediation proceedings no strike could be legally declared.
still had nine (9) months to run, i.e., up to September 30, The Secretary must have thought so too, that is why he
1989. The law expressly provides that neither party to a failed to act, for a period of seven (7) days, on PAL's
collective bargaining agreement shall terminate nor modify petition for him to assume jurisdiction over the labor
such agreement during its lifetime. While either party can dispute. The strike which the union mounted, while
serve a written notice to terminate or modify the
preventive mediation proceedings were ongoing, was aptly
described by the petitioner as "an ambush" (p. 2, Rollo).