Grievance and arbitration & ulp in l.o.final

IN ORGANIZED AND UNORGANIZED

ESTABLISHMENTS

any question by either the employer or the union regarding the

1) implementation or interpretation of the CBA or (i.e. Salary increase per year)

2) implementation or enforcement of company personnel policies (i.e. disciplinary actions)

or any claim by either party that the other party is violating any provision of the CBA or company personnel policies

Grievance

If the term grievance is to be applied in a generic sense, it would mean any dispute or controversy respecting terms and conditions of employment which an employee or group of employees may present to the employer, even without a CBA.

Grievance

any controversy or matter concerning terms or conditions of

employment or the association or representation of persons in

negotiating fixing, maintaining, changing or arranging the

terms and conditions of employment, regardless or whether the

disputants stand in the proximate relation of employer and

employee as stated in Art 212.

The kinds of labor disputes are

1.compensation 6.bargaining disputes

2.benefits 7.contract administration or

3.working conditions personnel policy disputes

4.organizational right dispute 8.employment tenure

5.representation disputes disputes.

Labor Disputes

Is the reference of a labor dispute to a third party for determination on the basis of evidence and arguments presented by such parties, who are bound to accept the decision

-voluntary arbitration

-compulsory arbitration

Labor Arbitration

Compulsory Arbitration

Is the process of settlement of labor disputes by a government agency which has the authority to investigate and make an award which is binding on all the parties.

Compulsory arbitration is done primarily by the labor arbiters of the NLRC.

Grievance Procedure for Employees of

Unorganised Establishments:

Aggrieved Employee

Labor Arbiter

Regional Arbitration

Branch

National Labor Relations

Commission Appellate Jurisdiction

Hears & decides the case

Court of Appeals

Supreme Court

Article 217:Jurisdiction of Labor Arbiters

and the Commission

a) Except as otherwise provided under this Code. The labor Arbiters shall have original and exclusive jurisdiction to hear and decide within thirty (30) calendar days after the submission of the case by the parties for decision without extension, even in the absence of stenographic notes, the following cases involving all workers, whether agricultural or non-agricultural:

Cases falling under the original & exclusive

jurisdiction of the Labor Arbiter:

1. Unfair labor practice cases 2. Termination disputes 3. If accompanied with a claim for reinstatement,

those cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions of employment

4. Claims for actual, moral, exemplary and other forms of damages arising from the employer- employee relations.

5. Cases arising from any violation of Article 264 of this code, including questions involving the legality of strike and lockouts;

GRIEVANCE ARBITRATION IN UNORGANIZED

ESTABLISHMENTS

6. Except for claims for Social Security,

Medicare and maternity benefits, all other claims, arising from employer-employee relations, including those of persons in domestic or household service, involving an amount exceeding five thousand pesos (5000.00) regardless of whether accompanied with a claim for reinstatement.

Cases falling under the original & exclusive

jurisdiction of the Labor Arbiter:

Article 217:Jurisdiction of Labor Arbiters and the Commission

b) The commission shall have exclusive appellate jurisdiction over all cases decided by Labor Arbiters:

c) Cases arising from the interpretation of collective bargaining agreements and those arising from the interpretation or enforcement of company personnel policies shall be disposed of by the Labor Arbiter by referring the same to the grievance machinery and voluntary arbitration as may be provided in said agreements.

OTHER POINTS The cases the labor arbiter can hear and decide are

employment-related. Employment is the one element that runs through all the cases and disputes enumerated in ART 217.

This gives the impression that none but a labor arbiter can hear and decide the six categories of cases listed. However, any or all of these cases can, by agreement of the parties, be presented to and decided with finality by a voluntary arbitrator or panel of voluntary arbitrators.

Unfair Labor Practice

The essence of unfair labor practice is any act intended or directed to weaken or defeat the worker’s right to self-organize or to engage in unlawful concerted activities and includes the right to bargain collectively.

Labor Arbiter’s Jurisdiction over

Violation of CBA Gross violations of the CBA is considered ULP.

However, there is an exception as explained in Art 261. if violation is not gross, it is not ULP.

Termination Disputes The usual bone of contention is the legality of

dismissal. Its resolution depends on the validity of the cause and the manner of the employee’s dismissal.

In termination dispute, although the labor arbiter has jurisdiction thereover, in the case of Atlas vs. NLRC, the supreme court said that where the dispute is just in the interpretation, implementation or enforcement stage, it may be referred to the grievance machinery set up in the CBA, or brought to voluntary arbitration. But where there was already actual termination, with alleged violation of the employee rights, it is already cognizable by the labor arbiter.

Reinstatement Is the restoration of the employee who was unjustly

dismissed to the position from which he was removed

Money Claims If it is arising from employer-employee relations,

excepting SSS,ECC, PH claims, it is within the jurisdiction of the labor arbiter

Article 260: Grievance Arbitration in

Organized Establishments

The parties to a Collective Bargaining Agreement shall include therein provision 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.

All grievances submitted to the grievance machinery which are not settled within seven calendar days from the date of its submission shall automatically be referred to voluntary arbitration prescribed in the Collective Bargaining Agreement.

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 Arbitrators 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 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 has been selected by the parties as described above.

Article 260

Is part of the continuing process of collective

bargaining. It refers to the mechanism for the

adjustment and resolution of grievances arising from

the interpretation or implementation of a CBA and

those arising from the interpretation or enforcement of

company personnel policies.

Grievance Procedure

Grievance Machinery

Consists of internal rules of procedures such as the

successive steps starting at the level of the

complainant and his immediate supervisors and

ending, when necessary at the level of the top union

and company officials.

JURISDICTION OF GRIEVANCE MACHINERY IN CBA

Cases falling under the Grievance Machinery are all grievances arising from the

–Implementation or interpretation of the collective bargaining agreement and/or

–Interpretation and enforcement of company personnel policies

Collective Bargaining Agreement

A collective agreement that intends to stabilize employment relations for a period of time with results advantageous both to the employees and the employer

Personnel Policies

Are guiding principles that are broad and long range terms that express the philosophy or beliefs of organization's top authority regarding personnel matters.

Example: promotion policies, transfer policies not expressed in the CBA, disciplinary actions

Since it is a continuous process of collective bargaining, it intends to promote a friendly dialogue between employees and employers as a means to maintaining industrial peace

Grievance machinery under the CBA, is the very heart of industrial self government

Purpose of the Grievance Procedure

Consequence to Non Adherence to The Grievance Procedure

Refusal or failure to do so is unfair labor practice, because the grievance procedure is part of the continuous process of the CBA.

The grievance committee shall have representatives

from members of the bargaining unit & the employee,

unless otherwise agreed upon by the parties

In the absence of a specific provision in the CBA or

existing company practice the following shall apply

1.)Employee shall present his grievance or complaint

orally or in writing to the shop steward

2.) Upon receipt thereof, the shop steward shall verify

the facts and determine whether or not the grievance is

valid

Grievance Machinery Structure & Procedure

3.)If grievance is valid, the shop steward shall

immediately bring the complaint to the employee's

immediate supervisor. The shop steward, the

supervisor, and the employee shall exert efforts to

settle the grievance.

4.)If no settlement is reached, the grievance shall be

referred to the grievance committee which shall have

ten days to decide the case.

Grievance Machinery Structure & Procedure

Where the grievance remains unresolved, either party

may serve notice upon the other of its decision to submit

the issue to voluntary arbitration.

Grievance Machinery Structure & Procedure

Grievance Procedure for Employees

of Organised Establishments:

Aggrieved Employee

Shop Steward

Grievance Committee

Verify facts and determine

whether or not grievance

is valid

Voluntary Arbitration

Court of Appeals

Supreme Court

Parties have freely chosen V.A. as

mode of settlement

Refers to the mode of settling labor management

disputes by which the parties select a competent,

trained and impartial third person who shall decide

on the merits of the case and whose decision is final

and executory.

Voluntary Arbitration

referral of a dispute to voluntary arbitration is pursuant

to a voluntary arbitration clause in the collective

bargaining agreement.

Voluntary Arbitration: A private

judicial system A contractual proceeding whereby the parties to

any dispute or controversy, in order to

-obtain a speedy and inexpensive final disposition of

the matter involved,

-Select a judge of their own choice who is an

impartial third person

-And by consent submit their controversy to him for a

final and binding resolution

Any and all kinds of labor disputes may be submitted

to, settled, or resolved through voluntary arbitration,

if the parties so desire.

As a master procedure, V.A. takes precedence over

other dispute settlement devices.

Ex. When a labor arbiter is presented with a case

under his “original and exclusive”jurisdiction, the

parties may withdraw it from him, not matter what

stage it may be, if the parties mutually decide to

bring the dispute instead to voluntary arbitration.

Voluntary Arbitration as a Master Procedure

1.provide a process for the orderly disposition of

disputes

2.Provide foundation for stable labor-management

relations

The primary function of voluntary

arbitrator

Is not a public tribunal imposed upon the parties by a

superior authority which the parties are obliged to

accept.He is rather part of a system of self

government created by and confined to the parties.

List of accredited voluntary arbitrators of the National

Conciliation and Mediation Board which consists of persons

mostly engaged in full-time work as employees or officials in

the Gov’t or in education, civic and religious institutions,

trade union organizations and private enterprises. Most are

members of the Philippine Association on Voluntary

Arbitration (PAVA).

Following criteria for accreditation

1.A Filipino citizen residing in the Philippines

2.A holder of a Bachelor’s degree in any field of behavioral

or applied sciences or equivalent educational trainings

short of a Bachelor’s degree

Who May Be Accredited as Voluntary Arbitrator?

3.At least 5 years experience in labor-management

relations

4.Completion of a training course on voluntary

arbitration conducted by the Board; and

5.A person of good moral character, noted for

impartially, probity, and has not been civilly, criminally

and administratively adjudged guilty of any offense

involving moral turpitude as evidenced by a duly sworn

notice.

Who May Be Accredited as Voluntary Arbitrator?

MUTUAL AGRREEMENT BY THE PARTIES. Chosen by the parties

themselves. Their choice is not limited to the arbitrators

accredited by the NCMB, although Art. 260 says they should

preferably choose the accredited ones.

Choice is usually influenced by the person’s fairness and

knowledgeability of the dynamics, including law, of labor-

management relations.

Parties may choose between the use of temporary and

permanent arbitrator.

•Temporary is selected when dispute is already at hand

•Permanent is one who is selected before dispute arisis

How Voluntary Arbitrator is Chosen

JURISDICTION OF VOLUNTARY

ARBITRATORS OR PANEL OF VOLUNTARY

ARBITRATORS

The Voluntary Arbitrator or panel of Voluntary Arbitrators shall have original and exclusive jurisdiction to hear and decide all unresolved grievances arising from the interpretation or implementation of the Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies referred to in the immediately preceding article. Accordingly, violations of a Collective Bargaining Agreement, except those which are gross in character, shall no longer be treated as unfair labor practice and shall be resolved as grievances under the Collective Bargaining Agreement. For purposes of this article, gross violations of Collective Bargaining Agreement shall mean flagrant and/or malicious refusal to comply with the economic provisions of such agreement.

Article 261

The Voluntary Arbitrator or panel of Voluntary

Arbitrators upon agreement of the parties, shall

also hear and decide all other labor disputes

including unfair labor practice and bargaining deadlocks.

Article 262

JURISDICTION OVER OTHER LABOR DISPUTES

The cases falling under the exclusive and original

jurisdiction of the Voluntary Arbitrator or panel of

Voluntary Arbitrators

1.)all unresolved grievances arising from the interpretation

or implementation of the Collective Bargaining

Agreement and those

2.)all unresolved grievances arising from the interpretation

or enforcement of company personnel policies

3.)all other labor disputes including unfair labor practice

and bargaining deadlocks, upon agreement of the

parties

Jurisdiction of Voluntary Arbitrator

- Violations of the CBA, however if the violations are not

“gross” in character, these are to be treated as ULP.,

which following Art 217 are to be heard and decided

by a labor arbiter.

- Regarding dismissal of employees, as ruled by the

Supreme court in SMC vs. NLRC (3/15/1996), an

employee dismissal dispute may be submitted by the

parties to voluntary arbitration, but in the absence of

such agreement in clear and unequivocal language,

the dispute should be lodged with a labor arbiter.

Jurisdiction of Voluntary Arbitrator

- The power and authority of arbitrators in labor dispute

cases is derived from and limited by the terms of the

parties’ agreement. It is the arbitrator’s duty with

respect to the CBA, is to settle disputes arising

thereunder by applying and interpreting that

agreement.

Limitations of Voluntary Arbitrator