1. CBA NEGOTIATION/CONCLUSION
The Philippine Model
The TU and CB cycle
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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2. The trade union structure
The Philippine Model
The trade union structure
Three levels of unionism, one level of collective bargaining -
Trade Union Center
General Union
Independent Union
Affiliate
Industry or National Union
Local Chapter
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
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3. Employment growth by sector
Context of TU and CB
Employment growth by sector
Sector
GDP Growth
Rate (%)
Employment Growth Rate (%)
Agriculture
1.1
-2.8
Industry
9.5
3.0
Services
7.1
2.4
All Sectors
7.2
0.8
This slide shows the growth rate of GDP and employment side by side that give us a better story of what happen to labor market last year.
Industry was the growth driver with 9.5% growth rate and this corresponds to 3.05 employment growth.
Services sector also expanded at respectable rate of 7.1% and generated and a 2.4% employment growth.
But these gains were negated by the slowdown in agriculture output to 1.1% growth with corresponding steep decline in employment level - dragging down overall employment to less than one percent.
This contradiction between high GDP growth alongside low employment creation underscore the structural nature of employment problems in the Philippines that will take long years of reforms and adjustments to be in sync with the structure of the economy.
High GDP growth rate with low employment creation (jobless growth).
Structural nature of employment problem.
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4. Private household 1.959 million Own family-operated farm or business
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 establishment
million
Private household million
Own family-operated farm or business
0.127 million
Gov’t/GOCC
3.018 million
Employer
1.263 million
INFORMAL SECTOR
Vulnerable employment
Self-employed
million
Unpaid family workers
3.908 million
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5. Union growth is stagnant to slow
Policy outcomes
Union growth is stagnant to slow
1.855 M union members in 2013: M in 16,638 enterprise- based private sector and 463,000 in 1,769 public sector unions.
Year
New unions (private)
Total unions
(private)
Total membership (private) and % of wage sector
Total unions (public)
Total membership (public)
2007
260
17,021
1, 917,707 (11%)
1,563
334,319
2008
279
17,305
1,941,727 (10.9%)
1,628
343,477
2009
384
17,665
1,985,467 (10.6%)
1,676
356,279
2010
335
17,973
1,713,593 (8.7%)
1,706
360,680
2011
297
18,242
1,778,824 (8.7%)
1,709
402,851
2012
189
18,428
1,833,341 (8.5%)
1,742
446,044
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6. TU density and membership continue falling
Policy outcomes
TU density and membership continue falling
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7. CB coverage stagnant, CBC rate falling
Policy outcomes
CB coverage stagnant, CBC rate falling
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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 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.
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9. Organizing for new unions is limited
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.
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10. Fewer certification elections year on year
Policy outcomes
Fewer certification elections year on year
211 original Med-Arb cases, mostly PCEs, were in the dockets in 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.
Data on actions preparatory to collective bargaining suggest that the overall decline will likely continue. Petitions for certification election filed with the Med-Arbiter decreased from 517 cases in 2005 to 489 in 2006, and to 312 in 2010.
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11. Number and coverage of CBAs decreasing
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.
Year
Newly-filed
Coverage
Total CBAs
Total coverage
2005
459
82,925
2,973
556,000
2006
536
60,790
2,700
235,887
2007
318
44,375
1,542
218,128
2008
307
55,290
1,4566
227,403
2009
453
74,924
1,394
225,167
2010
540
87,445
1,413
212,054
2011
475
77,944
1389
227,620
2012
365
58,138
1,327
219,899
Collective bargaining coverage has also been declining.
of the 16,638 enterprise level private sector unions have CBAs (8%) (1,399 out of 16,638)
Of the existing number of private sector unions, 1,415 or 8.7 per cent have collective bargaining agreements (CBAs). These CBAs cover 213,000 workers, which means that only about 1.3 per cent of the total number of union members in the private sector are covered by CBAs. Interestingly, the figures show that in 2010, 540 new CBAs (38 per cent of the total) were registered, covering 87,445 workers (41 per cent of the total). Preliminary figures as of March 2011 indicate an improvement in the total number of registered CBAs at 1,447 and CBA coverage at 225,000. The weakening of private sector unionism and collective bargaining is readily apparent if a base year is used, for instance 2005, when 11.7 per cent of wage and salary workers who were members of unions were covered by CBAs. In the same year, there were 2,793 registered CBAs covering 556,000 workers. Only half these numbers remained in 2010.
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12. Where CB happens, no evidence of distributional impact
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.
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13. Industrial peace, or simply no voice?
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.
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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.
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15. Variations in TU and CB outcomes
Toward a strategic framework
Variations in TU and CB outcomes H
T U
DENSITY
High TU density
Low CB coverage
High CB coverage
Low TU density t L
CB COVERAGE
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16. Samples from around the world
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
Italy, 97/98; Belarus, 90/95; Cuba, 81.4/81.4; Denmark, 72/92; Finland, 69/95; Belgium, 49/96; Austria, 35.1/95; France, 8/97.7; South Africa, 36/27; Canada, 31,29; UK, 28/34; Singapore, 31.7/ 17.3; Brazil, 20.9/60; New Zealand, 20.8/17.8; Australia, 19.6/31.2; Malaysia, 10.3/2.4; US, 11.4/12.9; Philippines, 3.2/2.2 US
Malaysia
France L
CB COVERAGE
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17. How the Philippines compares
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
Italy, 97/98; Belarus, 90/95; Cuba, 81.4/81.4; Denmark, 72/92; Finland, 69/95; Belgium, 49/96; Austria, 35.1/95; France, 8/97.7; South Africa, 36/27; Canada, 31,29; UK, 28/34; Singapore, 31.7/ 17.3; Brazil, 20.9/60; New Zealand, 20.8/17.8; Australia, 19.6/31.2; Malaysia, 10.3/2.4; US, 11.4/12.9; Philippines, 3.2/2.2 US
Malaysia
France
Philippines L
CB COVERAGE
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18. Samples from around the world
Variations in TU and CB outcomes
Samples from around the world
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19. Lessons from the samples
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.
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20. Lessons from the samples
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.
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21. TU and CB model plays a key role
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
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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.
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23. Recent reform initiatives
Developing a transformation strategy
Recent reform initiatives
Recent reform initiatives follow a “piecemeal” approach of amending the Labor Code.
R.A (2007), Rationalizing the composition of the NLRC
R.A (2007), Strengthening workers’ Constitutional right to self-organization
R.A (2013), Strengthening tripartism
R.A (2013), Strengthening conciliation and mediation
These reforms are procedural in nature.
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24. Planned reform initiatives
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
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25. Planned reform initiatives
Developing a transformation strategy
Planned reform initiatives
Planned reform initiatives contained in PLEP continue with the “piecemeal” approach -
Amendment of Arts 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.
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26. Nature and scope of initiatives
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.
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27. The case for a transformational model
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.
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28. Identifying the constraints (1)
Developing a transformation strategy
Identifying the constraints (1)
CORE ELEMENT
CHARACTERISTICS
First element:
Recognition, promotion and regulation of FoA and TU rights
Eligibility for TU membership conditioned on employment status and classification
Minimum requirements for TU to acquire legal personality
State-administered registration system
Pluralist, decentralized and enterprise-based TU structure
Protection against anti-union discrimination, coercion and ULPs
Formal recognition of right to federate or form central organizations for TUs, informal recognition for employers
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29. Eligibility for TU membership
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 , 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.
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30. Eligibility for TU membership
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.
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31. Identifying the constraints (2)
Developing a transformation strategy
Identifying the constraints (2)
CORE ELEMENT
CHARACTERISTICS
Second element:
Recognition, promotion and regulation of CB rights
Enterprise-based bargaining units
Membership in bargaining units based on common employee classification and interests
Democratic and competitive selection, thru certification election, of the union which will serve as the sole and exclusive bargaining representative for workers
Fixed term of representation
Multi-level appellate recourse to question selection of bargaining representative
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32. Bargaining unit determination
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 , 15 Aug. 1997, and G. R. No , 01 Aug., 2011.
“Inclusion-exclusion” proceedings and “double appeal” in PCEs are the graveyard of unions.
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33. Exclusivity of representation
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?
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34. Identifying the constraints (3)
Developing a transformation strategy
Identifying the constraints (3)
CORE ELEMENT
CHARACTERISTICS
Third element:
Structure, process, scope and content of CB
Decentralized and enterprise-based structure
Formal recognition of duty to bargain in good faith, with guidelines on bargaining process
Protection against bad faith bargaining and related forms of ULP
Fixed term of CBA; periodic nature of bargaining
Minimum labor standards are baselines to CB
Binding between the parties within the BU, non-extendible to workers outside the BU
Recognition of union security clauses
Minimum State intervention in the CB process
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35. Enterprise level bargaining
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 , 23 January 2002.
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36. Higher level bargaining
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?
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37. Identifying the constraints (4)
Developing a transformation strategy
Identifying the constraints (4)
CORE ELEMENT
CHARACTERISTICS
Fourth element :
Dispute settlement
Classification of disputes: bargaining deadlocks, gross violation or implementation or interpretation of CBA provisions
Requirements for strike and lockout; consequences for non-compliance
Sequential principles in dispute settlement
Shared responsibility: parties to resolve their dispute thru consensus
Outside the enterprise, preferred mode is conciliation, mediation and VA. Compulsory arbitration for national interest cases
Multi-level appellate and judicial recourse
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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 , 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.
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39. Building on what we have
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)
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40. Drawing from other instruments
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)
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41. From CBA to COLLECTIVE AGREEMENTS
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)
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42. Targeting strategic goals and outcomes, one step at a time
Developing a transformation strategy
Targeting strategic goals and outcomes, one step at a time
Short term
New model
Education
Advocacy
Mid term
> TU density
> CB coverage
Long term
Influence
Partnership
Redistribution
Social justice
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43. THANK YOU FOR YOUR ATTENTION!