Collective Bargaining and Administration of Agreement
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Transcript of Collective Bargaining and Administration of Agreement
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?