COLLECTIVE BARGAINING

AND ADMINISTRATION OF

AGREEMENT

Part 1. COLLECTIVE BARGAINING CONCEPT AND PROCEDURE

SCOPE

• PROCEDURE IN COLLECTIVE BARGAINING

ART. 260 [250]

• DUTY TO BARGAIN COLLECTIVELY IN THE ABSENCE OF COLLECTIVE BARGAINING AGREEMENTS

ART. 261 [251]

• MEANING OF DUTY TO BARGAIN COLLECTIVELY

ART. 262 [252]

• DUTY TO BARGAIN COLLECTIVELY WHEN THERE EXISTS A COLLECTIVE BARGAINING AGREEMENT

ART. 263 [253]

• TERMS OF A COLLECTIVE BARGAINING AGREEMENT

ART. 264 [253-A]

• INJUNCTION PROHIBITEDART. 265 [254]

Overview/Key Qualities

1. How is collective bargaining done? May the parties devise their own procedure?

2. The prevailing practice is single enterprise bargaining. Is multi-employer bargaining allowed?

3. What are the elements of the duty to bargain, violation of which may constitute ULP?

4. What are the compulsory and optional subjects of bargaining?

5. What are the requirements of valid ratification of a CBA?

6. When does a CBA take effect? Up to when is it effective? May its life be extended by non-renewal or by mutual agreement?

Concept of Collective Bargaining

It is a democratic framework to stabilize the relation between labor and management to create a climate of sound and stable industrial peace. It is a mutual responsibility of the employer and the union and is their legal obligation.

Democratic framework

Stability

Industrial peace

Legal obligation

Continuous process

Employer-employee relations

FOUR PROCESSES

Negotiation between representatives of the management and the

union over “wages, hours, and other terms…of

employment”

The execution of a written contract embodying the

terms agreed upon

Negotiation of any question arising as to the

interpretation or application of the contract

Negotiation over the terms of a new contract or

proposed modifications, when an existing

agreement is validly open for negotiations

A SYSTEM OF CONTINUOUS

PROCESSES

• Negotiation of Contracts

LEGISLATIVE PHASE

• Administration of Contracts

EXECUTIVE PHASE

• Interpretation or Application of Contracts

JUDICIAL PHASE

Collective Bargaining Agreement

A contract executed upon request of either the employee or the exclusive bargaining representative of the employees incorporating the agreement reached after negotiations with respect to wages, hours of work and all other terms and conditions of employment, including proposals for adjusting any grievances or questions under such agreement.

Generalized code

Whole employment relationship

Rights and duties of parties

Industrial self-government

Grievance machinery

Private law

WORDS TO REMEMBER

“…wages, hours of

work, and all other

terms and conditions

of employment…”

ART. 260 (a)

1. When a party desires to negotiate an

agreement,

2. it shall serve a upon the

other party with a statement of its

proposals.

3. The other party shall make a reply

thereto

from receipt of such notice;

ART. 260 (b)

1. Should differences arise on the basis

of such notice and reply,

may request for a

conference

3. which shall begin

from the date of

request

ART. 260 (c)

1. If the dispute is not settled, the board shall intervene

and immediately call the parties to

conciliation meetings.

2. The board

requiring the attendance of the parties

to such meetings.

3. It shall be the of the parties to participate fully

and promptly in the conciliation meetings the board

may call.

ART. 260 (d)

1. During the conciliation

proceedings in the Board,

2. the parties are prohibited from

doing

the early

settlement of the disputes

ART. 260 (e)

1. The Board shall exert all

efforts to settle disputes

amicable and encourage the

parties to submit their case to

a voluntary arbitrator.

JURISDICTIONAL PRECONDITIONS OF

COLLECTIVE BARGAINING

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

Proof of majority representation

A demand to bargain under Article 260

[250] par. (a) of the New Labor Code

PARTIES TO COLLECTIVE BARGAINING

Duty to bargain

exclusive between

employer and

employee

Where there is no duty

to bargain, there is no

right to violate

Legitimate labor

organization or

Any officer or agent of such organization

whether or not employed

Duly authorized by employees

EMPLOYER EMPLOYEE

MINORITY vs. MAJORITY UNION ULP

Refusal of Collective

Bargaining: dealing and negotiation with

the minority representative to the

exclusion of the majority

representative

ULP: where there is a legitimate representation concern, to strike and demand that management engage in collective bargaining.

See Lakas ng MangagawangMakabayan vs. Marcelo Enterprises

MANAGEMENT UNION

BARGAINING TIME FRAME

Jurisdictonal

Preconditions Present

: within 12 mos. from

and of

exclusive bargaining representative

No Time Limit

BEGINS ENDS

CERTIFICATION YEAR

Absent unusual circumstances, an employer commits

an unfair labor practice by refusing to bargain with the union during its certification year,

notwithstanding the repudiation of the union by the majority of its employees before expiration of the

one-year period.

The rule is the same whether the union lost its majority as a result of the employer’s unfair labor

practices or through no fault of the employer.

Following expiration of the certification period,

there continues to be a presumption in favor of a union majority.

SINGLE ENTERPRISE vs. MULTI-

EMPLOYER BARGAINING

D.O. No. 40-03: “…The recognized or certified labor union and its employer may adopt such procedures and processes they may deem appropriate and necessary for the early termination of their negotiations…”

Industry-wide

Bargaining

P.D. No. 442

E.O. No. 111

D.O. No. 40-03

SINGLE MULTI

ART. 261

1. In the

providing for a more expeditious

manner of collective bargaining,

in accordance

with the provisions of this code.

ART. 262

1. The duty to bargain collectively means the

performance of a mutual obligation to meet and convene promptly and expeditiously in

for the purpose of negotiating an agreement with respect to

including proposals for adjusting any grievances or

questions arising under such agreement

2. 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.

ART. 263

1. 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.

2. However, either party can serve a to terminate or modify the agreement at

prior to its expiration date.

3. 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

and/or until a new agreement is reached by the parties.

60 DAY PERIOD

Nonrepresentational

aspects provisions of

the CBA

THE FREEDOM PERIOD

ART. 263 ART. 264

Duty to Bargain

The mutual obligation

of the employer and

the employees’

majority union to meet

and convene.

To meet and convene,

as well as the

obligation not to

terminate or modify

the CBA during its

lifetime.

Art. 261 Art. 263

FOUR FORMS OF ULP IN

BARGAINING

FAILURE OR REFUSAL TO MEET AND CONVENE

EVADING THE MANDATORY SUBJECTS OF BARGAINING

BAD FAITH IN BARGAINING, INCLUDING FAILURE OR REFUSAL TO EXECUTE THE CLLECTIVE

AGREEMENT, IF REQUESTED

GROSS VIOLATION OF THE CBA

FAILURE OR REFUSAL TO MEET AND CONVENE

FIRST ULP IN BARGAINING

FAILURE OR REFUSAL TO MEET AND

CONVENE

An employer is

guilty of an unfair

labor practice in

refusing to bargain

with the

representative of a

majority of his

employees. To

bargain in good

faith, an employer

must not only meet

and confer with the

union which

represents his

employees, but also

must recognize the

union for the

purpose of

collective

bargaining.

Legal obligation for both parties

Good faith bargaining involves

recognizing the union

Refusal by an employer to bargain

collectively with his employees

constitutes “interference” with the

latter’s right to self-organization.

SUMMARIZED SCENARIOS

Unresolved petition for

Union Cancellation

Bad faith sale of company

Economic Exigencies do not

justify Refusal to Bargain

Interference in the Selection

of the Union’s Negotiating

Panel

Non-reply to Collective

Bargaining Proposal

Refusal to bargain

with an Unregistered

Chapter

Conversion to

Independent Franchise

or Operation

ULP NOT ULP

SUCCESSOR COMPANY

continuity and identity

1. The basic rule is that if the transfer of assets and the employees from one employer to another

, the transferor’s duty to recognize and bargain with an incumbent union devolves upon the transferee as “successor employer”.

2. If the transfer of assets and employee’s from one employer to another

, the old employer’s duty to with an incumbent union

devolves on the new employer as successor employer.

Acts not Deemed Refusal to Bargain

1. Adoption of an adamant bargaining position in

good faith, particularly where the company is

operating at a loss;

2. Refusal to bargain over demands for commission

of unfair labor practices;

3. Refusal to bargain during period of illegal strike.

Neither is there duty to bargain where:

1. There is no request for bargaining;

2. The union seeks recognition for an inappropriately large unit;

3. The union seeks to represent some persons who are excluded from the Act;

4. The rank-and-file unit includes supervisors or inappropriate otherwise;

5. The demand for recognition and bargaining is made within the year following a certification election in which the clear choice was no union and no ad interim significant change has taken place in the unit;

6. The union makes unlawful bargaining demands.

EVADING THE MANDATORY SUBJECTS

SECOND ULP IN BARGAINING

MANDATORY SUBJECTS

“…wages, hours of

work, and all other

terms and conditions

of employment…”

EVADING MANDATORY SUBJECTS

A mere remote,

direct, or incidental

impact is insufficient

to render a subject

a mandatory

subject of

bargaining; in

order for a matter

ro be subject t

mandatory

collective

bargaining, it must

materially or

significantly affect

not only what an

employer has

already granted,

but also what it has

announced it

intends to grant.

Employer’s duty to bargain is limited to the mandatory bargaining subjects, but he may bargain to an impasse

Wages and Employment Conditions

Workloads and Work Rules

Code of Conduct

Management Prerogatives Clause

Union Discipline Clause

Arbitration, Strike-Vote, No-Strike Clauses

No-Lockout Clause

Statutory Benefits

EXAMPLES OF MANDATORY SUBJECTS

1. Wages and other types of compensation, including merit increases

2. Working hours and working days, including work shifts

3. Vacations and holidays

4. Bonuses

5. Pensions and retirement plans

6. Seniority

7. Transfer

8. Lay-offs

9. Employee workloads

10. Work rules and regulations

11. Rent of company houses

12. Union security arrangements

IMPASSE OR DEADLOCK

A bargaining impasse over an issue exists where good faith bargaining on the part of the parties has failed to resolve the issue and there are no definite plans for further efforts to brakthe deadlock.

Mandatory vs. Non-mandatory subjects

Duty to bargain remains

Valid reason to declare a strike or lock-

out

BARGAINING TO DEADLOCK

NOT BAD FAITH: NO

ULP

BAD FAITH: ULP

MANDATORY NON-MANDATORY

BAD FAITH

THIRD ULP IN BARGAINING

INSTANCES OF BAD FAITH

1. Delay of, or imposing time limit on, negotiations

2. Surface bargaining; Shifting Bargaining Positions;

Blue Sky Bargaining

3. Inflexible Demands; Strike Amid Negotiation

4. Boulwarism; Take-it-or-leave-it Bargaining

INSTANCES EXPLAINED

SURFACE BARGAINING

• A sophisticated pretense in the form of apparent bargaining, it involves going through the motions of negotiating without any legal intent to reach an agreement.

SHIFTING BARGAINING POSITIONS

• Repeated shifts in position and attitude on the part of an employer whenever a tentative agreement is reached

BLUE SKY BARGAINING

• Exaggerated or unreasonable proposals

BOULWARISM

A campaign that pictures the Company as the true defender of the employees’ interests, further denigrating the union, and sharply curbing the Company’s ability to change its own position.

An approach to

negotiations which

emphasized both the

powerlessness and

uselessness of the

Union to its members

INTENSE MARKETING TAKE IT OR LEAVE IT

GROSS VIOLATION OF THE CONTRACT

FOURTH ULP IN BARGAINING

GROSS VIOLATION OF THE

CONTRACT

Occurs when the collective contrast is already in place., but the collective bargaining process is not yet over, and the duty to bargain is still operative because such duty further requires faithful adherence to the contractual provisions.

Violation of the contract amounts to ULP

if the violation is gross.

Faithful adherence to the contract is a

continuation of the duty to bargain

Obligation to renegotiate the CBA

when it expires

not provided in Arts. 260-265

RATIFICATION, EXECUTION,

REGISTRATION

RATIFICATION

1. Ratified or approved by the majority of all the

workers in the bargaining unit, not just the majority

union

2. Posting of CBA in two conspicuous places for five

days

Not needed if CBA is the product of an arbitral

award by appropriate government authority or by

a voluntary arbtirator

EXECUTION

Signing of the CBA

If formalized, refusal is ULP

Signing of a contract

REGISTRATION

Registered with the DOLE Regional Office where

the bargaining union is registered or where it

principally operates.

Within thirty (30) calendar days from execution of

the agreement

Failure to register will not invalidate or render CBA

unenforceable

AUTOMATICE RENEWAL

“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

and/or

until a new agreement is reached by

the parties.”

TERMS OF A COLLECTIVE BARGAINING AGREEMENT

INJUNCTION PROHIBITED

ART. 264 & 265

SCOPE

Whether the CBA is

the first CBA or a

renegotiated CBA

Whether the subject

provision is

representational or

non-representational

EFFECTIVITY DATE DURATION

Effectivity Date

Whatever date

parties agree on

If concluded within

from expiry of

old CBA: takes effect on

date following expiry

If beyond: no automatic

retroaction. Parties must

agree on terms of

effectivity

First CBA Renegotiated CBA

DURATION

Non Representational Aspect

[3 YRS]

Representational Aspect

[5 YRS]

FREEDOM PERIOD

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

immediately before the date of expiry of

such five-year terms of the Collective

Bargaining Agreement.

ART. 265

in any

case involving or growing out of labor

disputes shall be

, except as otherwise

provided in Articles 218 and 264 of

this code.

EXCEPTION

WHEN PROHIBITED OR UNLAWFUL ACTS ARE

BEING OR ABOUT TO BE COMMITTED

Overview/Key Qualities

1. How is collective bargaining done? May the parties devise their own procedure?

2. The prevailing practice is single enterprise bargaining. Is multi-employer bargaining allowed?

3. What are the elements of the duty to bargain, violation of which may constitute ULP?

4. What are the compulsory and optional subjects of bargaining?

5. What are the requirements of valid ratification of a CBA?

6. When does a CBA take effect? Up to when is it effective? May its life be extended by non-renewal or by mutual agreement?