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The TU and CB cycle

The TU and CB cycle. The Philippine Model. UNION RECOGNITION. CBA NEGOTIATION/CONCLUSION. Year 1. Year 5. PROTECTION AGAINST ULPs; CONTINUING DUTY TO BARGAIN IN GOOD FAITH. CBA ADMINIS- TRATION. UNION FORMATION. CBA ADMINIS-TRATION. CBA RENEGO-TIATION/ CONCLUSION. Year 3.

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The TU and CB cycle

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  1. The TU and CB cycle The Philippine Model UNION RECOGNITION CBA NEGOTIATION/CONCLUSION Year 1 Year 5 PROTECTION AGAINST ULPs; CONTINUING DUTY TO BARGAIN IN GOOD FAITH CBA ADMINIS- TRATION UNION FORMATION CBA ADMINIS-TRATION CBA RENEGO-TIATION/ CONCLUSION Year 3 BERBitonioJr/TU&CB Workshop/01-2015

  2. The Philippine Model The trade union structure Three levels of unionism, one level of collective bargaining - • PEAK ORGANIZATION • Engages in political unionism • Assists or acts as agent in enterprise collective bargaining • Sits in policymaking bodies • FEDERATION • Assists or acts as agent in • enterprise collective bargaining • Sits in policy making bodies • ENTERPRISE UNION • Principal in enterprise collective bargaining BERBitonioJr/TU&CB Workshop/01-2015

  3. Context of TU and CB Employment growth by sector • High GDP growth rate with low employment creation (jobless growth). • Structural nature of employment problem. BERBitonioJr/TU&CB Workshop/01-2015

  4. Context of TU and CB Labor market dualism persists Labor market dualism persists, leaning increasingly toward non-standard employment arrangements and informalization. FORMAL SECTOR (Wage and salary) Precarious employment Private household 1.959 million Private establishment 17.033 million Own family-operated farm or business 0.127 million Employer 1.263 million Gov’t/GOCC 3.018 million Vulnerable employment INFORMAL SECTOR Unpaid family workers 3.908 million Self-employed 10.610 million BERBitonioJr/TU&CB Workshop/01-2015

  5. Policy outcomes Union growth is stagnant to slow 1.855 M union members in 2013: 1.392 M in 16,638 enterprise-based private sector and 463,000 in 1,769 public sector unions. BERBitonioJr/TU&CB Workshop/01-2015

  6. Policy outcomes TU density and membership continue falling BERBitonioJr/TU&CB Workshop/01-2015

  7. Policy outcomes CB coverage stagnant, CBC rate falling BERBitonioJr/TU&CB Workshop/01-2015

  8. Policy outcomes TU and CB activities concentrated in urbanized regions where W&S sector is larger • Direct correlation between urbanization and trade union and collective bargaining activity. • 9,898 unions (59% of all enterprise-based private sector unions) with 1.069 members (76.8%) are in NCR. • 2,122 unions with 180,000 members in CALABARZON. • 1,068 unions with 98,000 members in Central Luzon. BERBitonioJr/TU&CB Workshop/01-2015

  9. Policy outcomes Organizing for new unions is limited • Only a few new unions in urbanized regions, none in the less urbanized. • 99 new unions with 4,447 members were registered in 2013, mostly in NCR. • No newly registered unions in CAR and Regions I, II, VIII, IX, CARAGA and ARMM. • Hardly any evidence of new organizing activity in Regions IV-B, X and XI (one new union each). • Slight increase in number of unions and members, but lower union membership-to-employment ratio. BERBitonioJr/TU&CB Workshop/01-2015

  10. Policy outcomes Fewer certification elections year on year • 211 original Med-Arb cases, mostly PCEs, were in the dockets in 2013. 96 cases were on appeal. • 2010: 312 PCEs • 2006: 489 PCEs • 2005: 517 PCEs • Of the 211 cases, 138 were disposed, with 102 granted and 38 dismissed/withdrawn. • 2012 and 2011 (258/301 and 235/278, respectively). • Of the 195 newly-filed original cases, 116 were in NCR, 21 in Region III, and 14 in CALABARZON. No cases in CAR and Regions I, II, III, IV-B, IX and X. BERBitonioJr/TU&CB Workshop/01-2015

  11. Policy outcomes Number and coverage of CBAs decreasing • We are losing more CBAs than gaining new ones. Loss of CBAs mostly due to company closures. BERBitonioJr/TU&CB Workshop/01-2015

  12. Policy outcomes Where CB happens, no evidence of distributional impact . . . Increase in proportion of wage and salary workers in recent years did not increase CB coverage . . . . . . and increase in wage share to GDP cannot be attributed to CB. BERBitonioJr/TU&CB Workshop/01-2015

  13. Policy outcomes Industrial peace, or simply no voice? • Fewer union and collective bargaining activity directly correlated with less collective disputes. • 177 NOS/NOL, with 149 new cases, were filed in 2013. • 274 and 184 NOS/NOL in the dockets in 2012 and 2011. • One actual strike in 2013; 1,000 man-days lost. • 5 strikes and 5,000 man-days lost in 2011 and 2012. • Total PM and VA cases decreased from 2011 to 2013. • PM from 585 to 484. • VA from 249 to 230. BERBitonioJr/TU&CB Workshop/01-2015

  14. Toward a strategic framework • POLICY PERFORMANCE IS POOR. • NO NEED TO CHANGE POLICY GOALS AND OBJECTIVES. . . • The ENDS are fundamental and universal which all free and democratic societies seek to achieve. • . . . BUT THE MEANS TO ACHIEVE THESE ARE NO LONGER EFFECTIVE. • Strategic transformation should aim to re-design the TU/CB model, especially the characteristics which constrain FoA, TU and CB. BERBitonioJr/TU&CB Workshop/01-2015

  15. Toward a strategic framework Variations in TU and CB outcomes H T U DENSITY L CB COVERAGE BERBitonioJr/TU&CB Workshop/01-2015

  16. Variations in TU and CB outcomes Samples from around the world H T U DENSITY • Italy • Belarus • Cuba • Denmark • Finland • Norway • Belgium • South Africa • Austria • Singapore • Canada • UK • Brazil • NZ • Aus • Germany • US • Malaysia • France L CB COVERAGE BERBitonioJr/TU&CB Workshop/01-2015

  17. Variations in TU and CB outcomes How the Philippines compares H T U DENSITY • Italy • Belarus • Cuba • Denmark • Finland • Norway • Belgium • South Africa • Austria • Singapore • Canada • UK • Brazil • NZ • Aus • Germany • US • Malaysia • France • Philippines L CB COVERAGE BERBitonioJr/TU&CB Workshop/01-2015

  18. Variations in TU and CB outcomes Samples from around the world BERBitonioJr/TU&CB Workshop/01-2015

  19. Variations in TU and CB outcomes Lessons from the samples • There are correlations between economic and labor market factors and TU and CB outcomes - • Positive correlation between level of economic development and higher TU density (HIGH TUD) and CB coverage rates (HIGH CBC). . . . but high level of development does not guarantee HIGH TUD/HIGH CBC . • Positive correlation between large formal sector and HIGH TUD/HIGH CBC. • Inverse correlation between informality and HIGH TUD/HIGH CBC. BERBitonioJr/TU&CB Workshop/01-2015

  20. Variations in TU and CB outcomes Lessons from the samples • Political structures with a defined role for unions positively influence TU and CB outcomes. Countries moving toward HIGH TUD and HIGH CBC - • Tend to have labor parties or institutionalized role of unions in political decision-making. • Tend to be guided by the post-WWII social bargain. • Are or tend to have elements of the welfare State. • Tend to be parliamentary democracies. • Have long experience with C. 87 and C. 98. BERBitonioJr/TU&CB Workshop/01-2015

  21. Variations in TU and CB outcomes TU and CB model plays a key role Similar characteristics, similar outcomes - H • Developed economy • Large formal sector • Peak organizations • Corporatist and democratic coalitions • Coordinated, multi-level CB model • Employee termination must be for cause • Ergo omnes provisions • Transition economy • Large public sector employment and State-owned enterprises • State-led organizations with compulsory membership • Undeveloped CB structure • Evolving labor law • Developed economy • Large formal sector • Peak organizations • Democratic and competitive representation • Coordinated, multi-level CB model • Employee termination must be for cause • Ergo omnes provisions • Developed or developing economies • Large or small informal sector • Union pluralism • Decentralized CB model • Democratic and competitive representation L BERBitonioJr/TU&CB Workshop/01-2015

  22. Developing a strategy for transformation • All TU/CB models expressly aim to promote FoA, TU and CB. However - • As local and international experience show, the elements and characteristics of a particular model may, in operation, frustrate its stated goals and objectives. • Procedures may have the unintended consequence of rendering ineffective explicit substantive rights. BERBitonioJr/TU&CB Workshop/01-2015

  23. Developing a transformation strategy Recent reform initiatives • Recent reform initiatives follow a “piecemeal” approach of amending the Labor Code. • R.A. 9347 (2007), Rationalizing the composition of the NLRC • R.A. 9481 (2007), Strengthening workers’ Constitutional right to self-organization • R.A. 10395 (2013), Strengthening tripartism • R.A. 10396 (2013), Strengthening conciliation and mediation • These reforms are procedural in nature. BERBitonioJr/TU&CB Workshop/01-2015

  24. Developing a transformation strategy Planned reform initiatives • Planned reform initiatives contained in PLEP continue with the “piecemeal” approach – • Reducing minimum membership requirements and number of unions required to form a federation • Repeal of prohibition against unions to receive foreign assistance • Strengthening the rights of non-regular workers in the informal economy to self-organization • Passage of Magna Carta for Workers in the Informal Economy BERBitonioJr/TU&CB Workshop/01-2015

  25. Developing a transformation strategy Planned reform initiatives • Planned reform initiatives contained in PLEP continue with the “piecemeal” approach - • Amendment of Arts. 213-233 of the Labor Code “toward introducing reforms” in the NLRC • Direct appeal of VA and NLRC cases to SC • Amendment of compulsory arbitration provisions on national interest cases. BERBitonioJr/TU&CB Workshop/01-2015

  26. Developing a transformation strategy Nature and scope of initiatives • Stated general direction of recent and planned reforms is to align the laws with ILO Conventions. However - • Reform initiatives are focused only on the first and fourth core elements (FoA and TU rights and dispute resolution). • No initiatives on the second and third core elements (representation and structure and scope of CB). • All the initiatives are procedural in nature. BERBitonioJr/TU&CB Workshop/01-2015

  27. Developing a transformation strategy The case for a transformational model • In all, the initiatives tend TO PRESERVE AND SOLIDIFY the existing model, NOT TO TRANSFORM it. • Time to rethink “piecemeal” approach and develop one that is more strategic, purposeful and coordinated. • Tripartite partners should draw lessons and guidance from national and international experience. • Look BEYOND THE CURRENT MODEL. ELIMINATE THE CONSTRAINING ELEMENTS AND CHARACTERISTICS. BERBitonioJr/TU&CB Workshop/01-2015

  28. Developing a transformation strategy Identifying the constraints (1) BERBitonioJr/TU&CB Workshop/01-2015

  29. Developing a transformation strategy Eligibility for TU membership • Within a standard Ee-Er relationship, eligibility requirements can actually restrict FoA rights - • Ineligibility of managers and eligibility of supervisors • In point: United Pepsi-Cola Supervisory Union v. Laguesma, G. R. No. 122226, 25 March 1998. • Disguised ineligibility: an employer includes any person acting in the interest of the employer. • Practice of excluding specific groups or non-regular employees deemed eligible by law. BERBitonioJr/TU&CB Workshop/01-2015

  30. Developing a transformation strategy Eligibility for TU membership • Within an Ee-Er relationship, but under a non-standard employment arrangement (including subcontracting): legal recognition of eligibility has little practical impact. • Within an Ee-Er relationship simultaneously with some other relationship: disqualification of employees in cooperatives who are also members thereof. • Outside an Ee-Er relationship: the unemployed, own account workers and the informal sector. BERBitonioJr/TU&CB Workshop/01-2015

  31. Developing a transformation strategy Identifying the constraints (2) BERBitonioJr/TU&CB Workshop/01-2015

  32. Developing a transformation strategy Bargaining unit determination • In spite of explicit preference for a “one employer, one bargaining unit policy,” bargaining units have become smaller. • Legal principle that determination of BU and employee classification is a prejudicial issue to CB can work as an obstacle to actual CB. • In point: San Miguel Supervisors and Exempt Employees Union v. Laguesma, G.R. No. 110399, 15 Aug. 1997, and G. R. No. 146206, 01 Aug., 2011. • “Inclusion-exclusion” proceedings and “double appeal” in PCEs are the graveyard of unions. BERBitonioJr/TU&CB Workshop/01-2015

  33. Developing a transformation strategy Exclusivity of representation • Is a certification election the only way to express the employees’ choice of CB representative? • Should representation be always exclusive to one union? • With the proposal for industry or other forms of bargaining outside the enterprise, how will representation be determined? • Where there is more than one union in a B.U., will composite or coalitional rather than exclusive representation facilitate CB? BERBitonioJr/TU&CB Workshop/01-2015

  34. Developing a transformation strategy Identifying the constraints (3) BERBitonioJr/TU&CB Workshop/01-2015

  35. Developing a transformation strategy Enterprise level bargaining • Key issues - • Coverage of CB and application of employee classifications • A possible trend toward smaller bargaining units and more exclusions • Term of CBA (3-2, 3-3 or simply 3): Term confers workers the legal right to review the terms of the CBA at regular and periodic intervals. • In counter-point: Rivera v. Espiritu, G. R. No. 15547, 23 January 2002. BERBitonioJr/TU&CB Workshop/01-2015

  36. Developing a transformation strategy Higher level bargaining • Key issues in formulating an institutional mechanism for bargaining outside the enterprise level – • Coverage of CB and application of employee classifications • Choice of representation • Should there be representation even without TU membership? • Nature of agreements: framework or binding? • Scope of application: exclusive to signatories or with ergo omnes application? BERBitonioJr/TU&CB Workshop/01-2015

  37. Developing a transformation strategy Identifying the constraints (4) BERBitonioJr/TU&CB Workshop/01-2015

  38. Developing a transformation strategy Labor disputes • Definition of strike now includes instances where workers do not actually withhold their labor. • In point:NUWHRAIN Dusit Hotel Nikko Chapter v. Court of Appeals, G. R. No. 166295, 11 November 2008. • Proposal to make voluntary arbitrator’s decision directly appealable to the Supreme Court – • Pro: Shortens the appellate process • Cons: Undermines binding nature of VA; in turn undermines CB; may create a perverse incentive for parties not to submit to VA. BERBitonioJr/TU&CB Workshop/01-2015

  39. Developing a transformation strategy Building on what we have • Some institutionalized tripartite and social dialogue processes are forms of bargaining outside the enterprise • Wage fixing • Specialized regulations for non-standard work arrangements (subcontracting) • Specialized industry regulations (construction and security industries) • Specialized regulations on hazardous work • Multi-employer employment contracts with international application (standard employment contract for seafarers) BERBitonioJr/TU&CB Workshop/01-2015

  40. Developing a transformation strategy Drawing from other instruments • In considering policy options, tripartite partners should not be confined to the current model or to the terms of C. 87 and C. 98. • Other instruments, even those not ratified by the Philippines, are instructive – • C. 154 (Collective Bargaining Convention, 1981) • R. 163 (Collective Bargaining Recommendation, 1981) • R. 91 (Collective Agreements Recommendation, 1951) BERBitonioJr/TU&CB Workshop/01-2015

  41. Developing a transformation strategy From CBA to COLLECTIVE AGREEMENTS A broader conceptualization from CBA to collective agreements will still be within the framework of C. 87, C. 98, tripartism and social dialogue – • “Collective agreements”means all agreements in writing regarding working conditions and terms of employment concluded between an employer, a group of employers or one or more employers' organisations, on the one hand, and one or more representative workers' organisations, or, in the absence of such organisations, the representatives of the workers duly elected and authorised by them in accordance with national laws and regulations, on the other.” (ILO R. 91) BERBitonioJr/TU&CB Workshop/01-2015

  42. Developing a transformation strategy Targeting strategic goals andoutcomes, one step at a time BERBitonioJr/TU&CB Workshop/01-2015

  43. THANK YOU FOR YOUR ATTENTION!

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