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D. Rights of labor organizations

1. Concepts

Labor organization – means any union or association of employees which exists in whole or in part for the purpose of collective bargaining or of dealing with employers concerning terms and conditions of employment. (Article 219[g], Labor Code)

Legitimate labor organization – means any labor organization duly registered with the Department of Labor and Employment, and includes any branch or local thereof. (Article 219[h], Ibid.)

Company union – means any labor organization whose formation, function or administration has been assisted by any act defined as unfair labor practice by this Code. (Article 219[i], Ibid.)

Bargaining representative – means a legitimate labor organization or any officer or agent of such organization whether or not employed by the employer. (Article 219[j], Ibid.)

2. Rights of Legitimate Labor Organizations.

A legitimate labor organization shall have the right:

1) To act as the representative of its members for the purpose of collective bargaining;

2) To be certified as the exclusive representative of all the employees in an appropriate bargaining unit for purposes of collective bargaining;

3) To be furnished by the employer, upon written request, with its annual audited financial statements, including the balance sheet and the profit and loss statement, within thirty (30) calendar days from the date of receipt of the request, after the union has been duly recognized by the employer or certified as the sole and exclusive bargaining representative of the employees in the bargaining unit, or within sixty (60) calendar days before the expiration of the existing collective bargaining agreement, or during the collective bargaining negotiation;

4) To own property, real or personal, for the use and benefit of the labor organization and its members;

5) To sue and be sued in its registered name; and

6) To undertake all other activities designed to benefit the organization and its members, including cooperative, housing, welfare and other projects not contrary to law.

Notwithstanding any provision of a general or special law to the contrary, the income and the properties of legitimate labor organizations, including grants, endowments, gifts, donations and contributions they may receive from fraternal and similar organizations, local or foreign, which are actually, directly and exclusively used for their lawful purposes, shall be free from taxes, duties and other assessments. The exemptions provided herein may be withdrawn only by a special law expressly repealing this provision. (ART. 251. [242], Ibid.)

1. Check off, assessment, agency fees

a. Requirement

1) Majority vote

2) Special meeting duly called for the purpose

3) Written resolution

No special assessment or other extraordinary fees may be levied upon the members of a labor organization unless authorized by a written resolution of a majority of all the members in a general membership meeting duly called for the purpose. The secretary of the organization shall record the minutes of the meeting including the list of all members present, the votes cast, the purpose of the special assessment or fees and the recipient of such assessment or fees. The record shall be attested to by the president. (Article 250 [241][n], Labor Code)

b. No other fees

1) Unless with written authorization

Other than for mandatory activities under the Code, no special assessments, attorney’s fees, negotiation fees or any other extraordinary fees may be checked off from any amount due to an employee without an individual written authorization duly signed by the employee. (Article 250 [241][o], Labor Code)

a) Content of authorization

The authorization should specifically state the amount, purpose and beneficiary of the deduction. (Ibid.)

2. Collective bargaining

Collective bargaining agreement (CBA) – refers to the contract between a legitimate labor union and the employer concerning wages, hours of work, and all other terms and conditions of employment in a bargaining unit. (Section 1[k], Rule I, Book V, Omnibus Rules Implementing the Labor Code, as amended by D.O. No. 40, Series of 2003)

a. Duty to bargain collectively

1) Duty to 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. (Article 262. [251], Ibid.)

2) 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. (Article 263. [252], Ibid.)

3) 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. (Article 264. [253], Ibid.)

b. Collective Bargaining Agreement

1) Procedure in Collective Bargaining

The following procedures shall be observed in collective bargaining:

1) When a party desires to negotiate an agreement, it shall serve a written notice upon the other party with a statement of its proposals. The other party shall make a reply thereto not later than ten (10) calendar days from receipt of such notice;

2) Should differences arise on the basis of such notice and reply, either party may request for a conference which shall begin not later than ten (10) calendar days from the date of request.

3) If the dispute is not settled, the Board shall intervene upon request 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 issue subpoenas requiring the attendance of the parties to such meetings. It shall be the duty of the parties to participate fully and promptly in the conciliation meetings the Board may call;

4) During the conciliation proceedings in the Board, the parties are prohibited from doing any act which may disrupt or impede the early settlement of the disputes; and

5) The Board shall exert all efforts to settle disputes amicably and encourage the parties to submit their case to a voluntary arbitrator. (Article 261, Ibid.)

2) Terms of a Collective Bargaining Agreement

a) 5-year term

(1) Representation aspect

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. (Article 265, Ibid.)

(2) 60-day freedom period

Another union may file a petition for certification election within the last sixty (60) days prior to the date of expiration of the five-year term of the Collective Bargaining Agreement. (Ibid.)

b) 3-year term

(1) All other provisions

All other provisions of the Collective Bargaining Agreement shall be renegotiated not later than three (3) years after its execution. (Ibid.)

(2) Within the 6-month from date of expiration of term/provision of CBA

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. (Ibid.)

(3) If agreed to after 6 months

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. (Ibid.)

i. Mandatory provisions in a Collective Bargaining Agreement

1) Mandatory provisions

a) Grievance machinery

The grievance machinery is procedure set forth in an organized establishment for the adjustment and resolution of grievances arising from the interpretation or implementation of their Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies. (Article 273, Ibid.)

b) Voluntary arbitration

The parties to a Collective Bargaining Agreement shall include therein provisions that will ensure the mutual observance of its terms and conditions. They shall establish a machinery for the adjustment and resolution of grievances arising from the interpretation or implementation of their Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies. (Article 273, Ibid.)

All grievances submitted to the grievance machinery which are not settled within seven (7) calendar days from the date of its submission shall automatically be referred to voluntary arbitration prescribed in the Collective Bargaining Agreement. (Paragraph 2, Article 273, Ibid.)

For this purpose, parties to a Collective Bargaining Agreement shall name and designate in advance a Voluntary Arbitrator or panel of Voluntary Arbitrators, or include in the agreement a procedure for the selection of such Voluntary Arbitrator or panel of Voluntary Arbitrators, preferably from the listing of qualified Voluntary Arbitrators duly accredited by the Board. In case the parties fail to select a Voluntary Arbitrator or panel of Voluntary Arbitrators, the Board shall designate the Voluntary Arbitrator or panel of Voluntary Arbitrators, as may be necessary, pursuant to the selection procedure agreed upon in the Collective Bargaining Agreement, which

shall act with the same force and effect as if the Arbitrator or panel of Arbitrators have been selected by the parties as described above. (Paragraph 3, Article 273, Ibid.)

c) Joint continuing programs and information campaigns for a drug-free workplace

(Section 4, R.A. 9165)

NB: Mandatory provisions are those required by law or regulations.

2) Kind of CBA provisions

a) Economic provisions

1) Labor standards (e.g. wage, holiday pay, overtime pay, retirement, etc.)

b) Non-economic provisions

1) Grievance machinery

2) Voluntary arbitration

3) Joint continuing programs and information campaigns for a drug-free workplace (Section 4, R.A. 9165)

4) Union security clause/s

5) Working conditions (e.g. work hours, transfer, seniority, lay-offs, etc.);

6) Analogous thereto

NB: The above-list on non-economic benefits are non-exhaustive. Essentially, any stipulations not related to compensation and benefits (which consist of economic provisions) fall under non-econmic provisions.

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