CBA BRIEFING

February 12, 2013

RIGHTS AND DUTIES OF THE EMPLOYER (PRE-CBA)

Meet and convene promptly and expeditiously in good faith with the union after the latter requests negotiation
The employer is not under any legal duty to initiate contract negotiation (Kiok Loy vs. NLRC) No compulsion for any party to agree to a proposal or to make any concession

RIGHTS AND DUTIES OF THE EMPLOYER (PRE-CBA)

Disclose up-to-date financial information upon request of the union
Material and necessary to negotiations Correlative right to demand up-to-date financial information from the union

Continue exercise of management prerogatives in good faith

GOOD FAITH BARGAINING

Deal with each other with open and fair mind and sincerely endeavor to overcome obstacles or difficulties existing between the parties.
The adamant insistence in good faith on a bargaining position to the point where the negotiations reach an impasse is not deemed a violation of the duty to bargain. (Divine Word University of Tacloban v. Secretary of Labor, 1992)

RIGHTS AND DUTIES OF THE UNION (PRE-CBA)

Demand collective bargaining negotiation Demand up-to-date financial information Act as the representative of its members for the purpose of collective bargaining To undertake all other activities for the benefit of its members Observe good faith in the bargaining process Comply with existing company policies

UNION MEMBERSHIP
Who cannot join?
a) Managerial employees b) Confidential employees
Twofold test: 1. Assist or act in a confidential capacity 2. In regard to persons who formulate, determine, and effectuate management policies in the field of labor relations

c) Supervisory employees cannot join R&F union

CBA BENEFICIARIES
All workers in the bargaining unit. Even non-member employees are entitled to the benefits of the contract.

Can you have 2 sets of benefits?

NO It bears noting that the goal of the DOLE is geared towards a single employer wide unit which is more to the broader and greater benefit of the employees working force. The philosophy is to avoid fragmentation of the bargaining unit so as to strengthen the employees' bargaining power with the management. To veer away from such goal would be contrary, inimical and repugnant to the objectives of a strong and dynamic unionism. (Phil. Diamond Hotel vs. Manila Diamond Hotel Employees Union, 2006) It might also be considered ULP (discrimination)

UNION SECURITY CLAUSE

Open shop Closed shop Union shop Maintenance of membership shop Agency shop

[T]he individual employee's right not to join a union may be validly restricted by a union security clause in a CBA and such union security clause is not a violation of the employee's constitutional right to freedom of association. (BPI vs. BPI Employees Union-Davao, 2010)

BARGAINING PROCEDURE
Parties are free to mutually adopt the procedure In the absence of any agreement:
Union shall serve written notice with written Step 1 proposals
Management shall reply within 10 days from Step 2 receipt of notice In case of differences, request for conference Step 3 within 10 days from such request Step 4 If unresolved, NCMB shall intervene

TIMETABLE
Commencement of negotiations: within 12 months from the certification of the bargaining representative Completion: no period

MANDATORY ISSUES
Wages Hours of work Grievance machinery
Provisions that will ensure mutual observance of the CBA Adjustment and resolution of grievances arising from interpretation/implementation of CBA and of company personnel policies

Other terms and conditions of employment

SIGNIFICANCE
Mandatory issues: Either party has a right to insist on its position to the point of stalemate
Can be the root of a bargaining deadlock

Permissive issues: Neither party has a right to insist its inclusion in the CBA
Cannot be the source of bargaining deadlock

BARGAINING DEADLOCK
Stalemate
Right not to be compelled to agree to a proposal or to make any concession

Pre-supposes good faith bargaining on both sides

Otherwise, its ULP

BARGAINING DEADLOCK

DEADLOCK

ARBITRATION

STRIKE/LOCKOUT

ULP IN BARGAINING
Refusal to bargain Evading mandatory subjects Bad faith bargaining Gross violation of CBA once the CBA is effective

OTHER ULP
Interference with EEs exercise of right to selforganization Non-membership/withdrawal from union as condition for employment Interference with formation or administration of the union Contracting out to discourage unionism Discrimination to encourage/discourage union membership

STRIKE
Grounds:
a) Bargaining deadlock b) ULP
a) Effort to bargain b) Filing of notice of strike with DOLE
i. ii.

Requirements:

c) 15-day cooling off period d) Strike vote majority of union members e) Strike vote report 7 days before intended strike

Bargaining deadlock: 30 days before intended strike ULP: 15 days before

Improved offer balloting

PEZA STRIKE RULES

JOINT DOLE-PNP-PEZA GUIDELINES: Request for PNP assistance should be coursed through DOLE Request for Economic Zone Police/PEZA Security Guards should be through the Economic Zone Office In case of actual violence, the PNP or PEZA can respond during strike, lockout or labor disputes even without the written request

PRE-RATIFICATION
The final draft of the CBA should be signed by the parties and posted in 2 conspicuous places in the workplace for at least 5 days before its ratification Responsibility of employer to post copies of the CBA (ALU vs. Ferrer-Calleja, 1989)

RATIFICATION
Ratification is mandatory Majority of all members of the bargaining unit (not just union members) Effect if not ratified: CBA is ineffective (ATU v. Trajano, 1988)

REGISTRATION
Submit 2 duly signed copies of the CBA to the DOLE Regional office which certified the bargaining union Other documentary requirements:
(a) the CBA; (b) a statement that the CBA was posted in at least 2 conspicuous places in the establishment concerned for at least 5 days before its ratification; and (c) a statement that the CBA was ratified by the majority of the employees in the bargaining unit of the employer concerned.

DURATION
Representation: 5 years and non-

Other aspects (economic economic): 3 years

RIGHTS AND DUTIES (POST-CBA Effectivity)

Ensure mutual observance of its terms and conditions
Its terms and conditions constitute the law between the parties

It cannot be terminated or modified except within 60 days prior to its expiration date Duty to maintain status quo until a new agreement is reached

THANK YOU