Freedom to Join and Form a Union
Under the Constitution, the right of all workers to self-organization is guaranteed. Furthermore, the right of the people, including those employed in the public and private sectors, to form union, association, or societies for purposes not contrary to law will not be restrained.
The Labour Code recognizes the idea of a trade union, which is regarded as a labour organization and 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”. It is also stipulates that the state as a matter of policy must promote free trade unionism as an instrument for the enhancement of democracy and the promotion of social justice and development; foster the free and voluntary organization of a strong and united labor movement and promote the enlightenment of workers concerning their rights and obligations as union members and as employees.
Lastly, all persons employed in commercial, industrial and agricultural enterprises and in religious, charitable, medical, or educational institutions, whether operating for profit or not, have the right to self-organization and to form, join, or assist labor organizations of their own choosing for purposes of collective bargaining. Ambulant, intermittent and itinerant workers, self-employed people, rural workers and those without any definite employers may form labor organizations for their mutual aid and protection.
Source: §8 of the Article III and Section 3 of the Article XIII of the Constitution of the Republic of the Philippines 1987; §218, 219, 253-257 of the Labour Code, as amended
Freedom of Collective Bargaining
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.
The Constitution guarantees the right of all workers to conduct collective bargaining and negotiations.
Under the Labour Code, a legitimate labour organization has the following rights with respect to collective bargaining:
- To act as the representative of its members for the purpose of collective bargaining;
- To be certified as the exclusive representative of all the employees in an appropriate bargaining unit for purposes of collective bargaining;
In addition, persons employed in commercial, industrial and agricultural enterprises and in religious, charitable, medical, or educational institutions, whether operating for profit or not, shall have the right to self-organization and to form, join, or assist labor organizations of their own choosing for purposes of collective bargaining.
When a party desires to negotiate an agreement, it must serve a written notice upon the other party with a statement of its proposals. The other party must reply within 10 calendar days from receipt of such notice. If the dispute is not settled, the relevant government department intervenes upon request of either or both parties or at its own initiative and immediately calls the parties to conciliation meetings.
In the absence of an agreement or other voluntary arrangement providing for a more expeditious manner of collective bargaining, the employer and the employee representatives must bargain collectively in accordance with the provisions of the Labour Code. When there is a collective bargaining agreement, the duty to bargain collectively also includes an understanding that neither party is to 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. Any Collective Bargaining Agreement that the parties may enter is valid for a term of five (5) years. All other provisions of the Collective Bargaining Agreement can be renegotiated not later than three (3) years after its execution. Lastly, there are no legal provisions on the issues that are to be discussed when engaging in collective bargaining.
It is considered an unfair labour practice on the part of employer to violate the duty to bargain collectively or violate an existing collective bargaining agreement.
Source: §3 of the Article XIII of the Constitution of the Republic of the Philippines 1987; §251, 259-272 of the Labour Code, as amended
Right to Strike
The Constitution guarantees the rights of all workers to perform peaceful concerted activities, including the right to strike in accordance with law.
According the Labour Code, “Strike" means any temporary stoppage of work by the concerted action of employees as a result of an industrial or labour dispute”.
Workers have the right to engage in concerted activities for purposes of collective bargaining or for their mutual benefit and protection. The right of legitimate labour organizations to strike and picket, consistent with the national interest, is recognized and respected. However, no labour union may strike on grounds involving inter-union and intra-union disputes.
In case of bargaining deadlocks, the duly certified or recognized bargaining agent has to file a notice of strike with the Ministry at least 30 days before the intended date. In cases of unfair labor practice, the period of notice is 15 days and in the absence of a duly certified or recognized bargaining agent, the notice of strike can be filed by any legitimate labour organization on behalf of its members. The Ministry must exert all efforts at mediation and conciliation to effect a voluntary settlement between the aggrieved parties. Should the dispute remain unsettled until the lapse of the requisite number of days from the mandatory filing of the notice, the labour union may start strike.
A decision to declare a strike must be approved by a majority of the total union membership in the bargaining unit concerned, obtained by secret ballot in meetings or referenda called for that purpose. The union must furnish to the Ministry the results of the voting at least seven days before the intended strike.
If a labour dispute causes or is likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labour and Employment can assume jurisdiction over the dispute and decide it or refer it for compulsory arbitration. Such assumption or certification will automatically end the intended or impending strike. If strike is already in progress, all striking employees will immediately return-to-work and the employer will immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike. The Secretary of Labour and Employment can seek the assistance of law enforcement agencies to ensure compliance with this provision. In labour disputes adversely affecting the continued operation of hospitals, clinics or medical institutions, the striking union must provide and maintain an effective skeletal workforce of medical and other health personnel, whose movement and services will be unhampered and unrestricted, so as to ensure the proper and adequate protection of the life and health of its patients. The contending parties are strictly enjoined to comply with such orders, prohibitions and/or injunctions as are issued by the Secretary of Labour and Employment, under pain of immediate disciplinary action, including dismissal or loss of employment status, and even criminal prosecution against either or both of the parties. The President of the Philippines can determine the industries that, in his opinion, are indispensable to the national interest, and are subject to intervention at any time and assumption of jurisdiction over any such labour dispute in order to settle or terminate the same.
The parties can opt to submit their dispute to voluntary arbitration, which will be then taken up by the relevant government authority, whose decision will be final.
Any strike declared in violation of the provisions of the Labour Code (without first having filed the required notice or without the necessary strike vote obtained and reported to the Ministry) is considered illegal. Furthermore, when the Secretary of Labour and Employment takes cognizance in the resolution of a dispute, no strikes can be declared thereafter.
No person can stop a peaceful strike by force, violence, coercion, threats or intimidation and no person involved in a peaceful strike can commit any act of violence, coercion or intimidation, obstruct or block the workplace and any public thoroughfares.
In an effort to settle a strike, the Department of Labour and Employment can conduct a referendum by secret ballot on the improved offer of the employer on or before the 30th day of the strike. When at least a majority of the union members vote to accept the improved offer, the striking workers must immediately return to work and the employer has to readmit them upon the signing of the agreement. Lastly, except on grounds of national security and public peace or in case of commission of a crime, no union members or union organizers can be arrested or detained for union activities without previous consultations with the Secretary of Labour.
Source: §3 of the Article XIII of the Constitution of the Republic of the Philippines 1987; §278-281 of the Labour Code, as amended
