Sistema de Agua Potable

The agreement negotiated by the employees’ bargaining agent should be ratified or approved by the majority of all the workers in the bargaining unit.

The proper ratifying group is not just the majority union but the majority of all the workers in the bargaining unit represented in the negotiation.

The ratification and the manner of doing it are mandatory.

The Implementing Rules require posting of the CBA in two conspicuous places for five days. In one case, the CBA was not posted for at least five days in two conspicuous places in the establishment before ratification, to enable the workers to clearly inform themselves of its provisions. Moreover, the CBA submitted to the MOLE did not carry the sworn statement of the union secretary, attested by the union president, that the

CBA had been duly posted and ratified, as required by the Implementing Rules and Regulations. The court ruled that these requirements being mandatory, non-compliance therewith rendered the said CBA ineffective.

6.1 Invalid Ratification

6.2 When Ratification Not Needed

Ratification of the CBA by the employees in the bargaining unit is not needed when the CBA is a product of an arbitral award by appropriate government authority or by a voluntary arbitrator. The arbitral award may result from voluntary arbitration under Art.262 or from the secretary’s assumption of jurisdiction or certification of the dispute to the NLRC, under Art. 263(g).

In any of those situations the CBA still needs to be posted in two conspicuous places in the workplace, but the posting is for the information of, and not ratification by, the employees affected. Moreover, the CBA has to be registered with the DOLE regional office.

To require ratification of the CBA in case of arbitral awards will be inconsistent with the nature of arbitration as a dispute-settlement device.

The preceding comment, however, does not mean that the arbitral award is beyond question. Certiorari on proper grounds is available.

6.3 Ratified but Unsigned

Lack of the purely ministerial act of signing the formal contract did not obviate the fact that there was a binding contract.

6.4 Unratified but Implemented

The parties to a collective agreement are required to furnish copies to the appropriate Regional Office with accompanying proof of ratification by the majority of all the workers

in the bargaining unit. This was not done in the case at bar. But we do not declare the CBA invalid or void considering that the employees have enjoyed benefits from it.

They cannot receive benefits under provisions favorable to them and later insist that the CBA is void simply because other provisions turn out not to the liking of certain employees. It is iniquitous to receive benefits from a CBA and later on disclaim its validity.

7. EXECUTION OF CONTRACT

A party to a collective bargaining may be required to sign a contract where the agreement has been reached by the parties and only one party’s refusal to execute a contract is preventing its being carried into effect. Such refusal is an unfair labor practice

7.1 Unwritten or Unsigned Agreement American courts have held that a collective bargaining agreement is valid though not reduced to writing or signed, if neither party requests a written instrument.

7.2 Effect of Signing on Other Disputes 8. REGISTRATION OF C.B.A.

The collective agreement, having been properly ratified, should be registered with the DOLE Regional Office where the bargaining union is registered or where it principally operates. Art. 231 requires the registration within thirty (3) calendar days from execution of the agreement. Multi-employer collective bargaining agreements shall be filed with the Bureau.

It is believed that failure to register the CBA does not make it invalid or unenforceable. Its non-registration, however, renders the contract-bar rule inoperative.

8.1 Requirements for Registration

Section 2. Requirements for registration. - The application for CBA registration shall be

accompanied by the original and two (2) duplicate copies of the following documents which must be certified under oath by the representative(s) of the employer(s) and labor union(s) concerned

(a) the collective bargaining agreement;

(b) a statement that the collective bargaining agreement was posted in at least two (2) conspicuous places in the establishment or establishments concerned for at least five (5) days before its ratification; and

(c) a statement that the collective bargaining agreement was ratified by the majority of the employees in the bargaining unit of the employer or employers concerned.

No other document shall be required in the registration of collective bargaining agreements

The application may be denied if the supporting documents are incomplete or not verified under oath. The denial, if by the Regional office, is appealable to the Bureau within ten (10) days or to the Secretary if the denial is by the Bureau.

9. AUTOMATIC RENEWAL OF CBA The parties shall continue the CBA in “full force and effect” until they reach a new agreement.

It is clear from the above provision of law that until a new Collective Bargaining Agreement has been executed by and between the parties, they are duty-bound to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement. The law does not provide for any exception nor qualification as to which of the economic provisions of the existing agreement are to retain force and effect, therefore, it must be understood as encompassing all the terms and conditions in the said agreement.

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Article 253-A. Terms of a collective bargaining agreement. – 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. All other provisions of the Collective Bargaining Agreement shall be renegotiated not later than three (3) years after its execution.

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. 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. (As amended by Section 21, Republic Act No.

6715, March 21, 1989).

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1. DURATION OF A C.B.A.

RA No. 9715 (March 21, 2989) has introduced through Art. 253-A a significant change in setting the durations or terms of a CBA at five years for the

“representation aspect” and not more than three years for “all other provisions.”

The “representation aspect” refers to the identity and majority status of the union that negotiated the CBA as the exclusive representative of the bargaining unit. “All other provisions: simply refers to the rest of the CBA, economic as well as non-economic other than representational.

The conference agreed to make the

“terms and conditions” or “economic”

provision of the CBA good only for three years so as to protect the economic gains of the workers.

Obviously, the framers of the law wanted to maintain industrial peace and stability by having both management and labor work harmoniously together without any disturbance. Thus, no outside union can enter the establishment within five (5) years and challenge the status of the incumbent union as the exclusive bargaining agent. Likewise, the terms and conditions of employment (economic and non-economic) cannot be questioned by the employers or employees during the period of effectivity of the CBA. The CBA is a contract between the parties and the parties must respect the terms and conditions of the agreement. Notably, the framers of the law did not give a fixed term as to the effectivity of the terms and conditions of employment. It can be gleaned from their discussions that it was left to the parties to fix the period.

The issue as to the term of the non-representation provisions of the CBA need not belabored especially when we take note of the Memorandum of the Secretary of Labor dated February 24, 1994. In said memorandum, the Secretary of Labor had occasion to clarify the term of the renegotiated terms of the CBA vis-a-vis the term of the bargaining agent, to wit:

As a matter of policy the parties are encourages (sic) to enter into a renegotiated CBA with a term which would coincide (sic) with the aforesaid five (5) year term of the bargaining representative.

In the event however, that the parties, by mutual agreement, enter into a renegotiated contract with a term of three (3) years or one which does not coincide with the said 5-year term, and said agreement is ratified by majority of the members in the bargaining unit, the subject contract is valid and legal and therefore, binds the contracting parties.

The same will however not adversely affect the right of another union to challenge the majority status of the incumbent bargaining agent within sixty (60) days before the lapse of the original five (5) year term of the CBA.

2. EFFECTIVITY AND RETROACTIVITY OF A C.B.A.

If the CBA is the very first for the bargaining unit, the Code does not state any rule on the CBA’s effectivity date. The

parties have to decide it for themselves.

But if the ensuing CBA is renewal, modification or renegotiation of an expiring one, the Code offers a formula for the effectivity date. Article 253-A provides that the ensuing agreement, if entered into within six (6) months from expiry of the old one, shall retroact to the date following such expiry date; thus, if the CBA expired on December 31 and the new one is concluded on, say, March 31, its effectivity date is January 1. If, on the other hand, the new agreement is concluded after June 30, then the matter of retroaction and the possible retroactive date are left to the parties.

When, precisely, is the date an agreement is “concluded” or “entered into”?

The determining point is the date the parties agreed, not the date they signed. Art. 253-A refers merely to an "agreement" which, according to Black's Law Dictionary is "a coming together of minds; the coming together in accord of two minds on a given proposition." This is similar to Art. 1305 of the Civil Code's definition of "contract" as "a meeting of minds between two persons." The two terms, "agreement" and "contract," are indeed similar, although the former is broader than the latter because an agreement may not have all the elements of a contract. As in the case of contracts, however, agreements may be oral or written. Hence, even without any written evidence of the Collective Bargaining Agreement made by the parties, a valid agreement existed in this case from the moment the minds of the parties met on all matters they set out to discuss, as provided under Art. 1315 of the Civil Code.

2.1 Effectivity of CBA Concluded After Six Months from Expiration of Old CBA

Significantly, the law does not specifically cover the situation where six months have elapsed but the parties have reached no agreement with respect to effectivity. In this eventuality, we hold that any provision of law should then apply, for the law abhors a vacuum.

One such provision is the principle of hold over, i.e., that in the absence of a new CBA, the parties must maintain the status quo and must continue in full force and effect the terms and conditions of the existing agreement until a new agreement is reached.

In this manner, the law prevents the existence of a gap in the relationship between the collective bargaining parties. Another legal principle that should apply is that in the absence of an agreement between the parties, then, an arbitrated CBA takes on the nature of any judicial or quasi-judicial award;

it operates and may be executed only prospectively unless there are legal justifications for its retroactive application.

3. EXTENSION OF EFFECTIVITY OF C.B.A., WHEN VALID

3.1 Ten-Year Suspension of CBA ________

Article 254. Injunction prohibited. – No temporary or permanent injunction or restraining order in any case involving or growing out of labor disputes shall be issued by any court or other entity, except as otherwise provided in Articles 218 and 264 of this Code. (As amended by Batas Pambansa Bilang 227, June 1, 1982).

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1. NO-INJUNCTION POLICY

An injunction may require or restrain the doing of an act.

Article 254 announces the policy that labor disputes are generally not subject to injunction. If the rule were otherwise, it would contradict the declared policy, under Article 211(a), “to promote and emphasize the primacy of free collective bargaining and negotiations, including voluntary arbitration, mediation and conciliation, as modes of settling labor or industrial disputes.”

The policy, basically, is freedom at the workplace. The law, true to the tenets of free enterprise system, allows management and labor to fashion the

contents and incidents of their relationship. If there is dispute between the parties, the responsibility to solve it devolves upon them primarily, not upon

the government. Government

intervention is the exception rather than the rule. This anti-injunction policy applies even as regards wage-fixing by the wage commission or regional wage boards.

Moreover, any injunctive order in “non-national interest” disputes can be directed only against the illegal acts being committed in connection with the labor dispute; it cannot be directed against the dispute itself.

There is no power the exercise of which is more delicate which requires grater caution, deliberation, and sound discretion, or (which is) more dangerous in a doubtful case than the issuing of an injunction; it is the strong arm of equity that never ought to be extended unless to cases of great injury, where courts of law cannot afford an adequate or commensurate remedy in damages. The right must be clear, the injury impending or threatened, so as to be averted only by protection preventive process of injunction.

1.1 Reason of the No-Injunction Policy The labor injunction is an employer’s most effective remedy in labor dispute.

However narrow its scope and form, the issuance of an injunction for any purpose in a labor dispute will generally tip the scales of the controversy. The issuance of an injunction in the early phases of a strike can critically sway the balance of the economic struggle against the union.

Enforced by the court’s contempt powers, even a preliminary injunction is an effectual strike-breaking weapon because so much time ordinarily elapses between the issuance of a preliminary injunction and the time when a final decree can be reviewed on appeal.

1.2 Injunction Issued by Regular Court, When Proper

Regular courts are without authority to issue injunction orders in cases involving or originating from labor disputes even if the complaint was filed by non-striking employees and the employer was also made a respondent to the action or even if the complainant was a customer of the strike-bound employer or a sister company of the strike-bound employer, whose premises were picketed by the strikers.

The court may issue an injunction, whether temporary or permanent, as provided in said section of Republic Act 875, only in a case involving or growing out of a labor dispute.

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Article 255. Exclusive bargaining representation and workers’ participation in policy and decision-making. – The labor organization designated or selected by the majority of the employees in an appropriate collective bargaining unit shall be the exclusive representative of the employees in such unit for the purpose of collective bargaining.

However, an individual employee or group of employees shall have the right at any time to present grievances to their employer.

Any provision of law to the contrary notwithstanding, workers shall have the right, subject to such rules and regulations as the Secretary of Labor and Employment may promulgate, to participate in policy and decision-making processes of the establishment where they are employed insofar as said processes will directly affect their rights, benefits and welfare. For this purpose, workers and employers may form labor-management councils: Provided, That the representatives of the workers in such labor-management councils shall be elected by at least the majority of all employees in said establishment. (As amended by Section 22, Republic Act No.

6715, March 21, 1989).

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1. WORKERS’ PARTICIPATORY RIGHT: