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HEIZEL DOTILLOS DUHAYLUNGSOD

Contents 1 Business process outsourcing in the Philippines 2 Union Formation in Indian Call Centres/BPO 3 COMPANY UNION 4 New Unionism 5 Collective Bargaining 6 Mutual Gains Approach (MGA) 7 REPUBLIC ACT NO. 9298 8 G.R. No. 160568 September 15, 2004, CSC 9 COMMON MISTAKES 10 Thesis Statement 11 HEIZEL 12 THE LABOR CODE OF THE PHILIPPINES 13 LABOR CODE I - PRE-EMPLOYMENT 14 LABOR CODE - Title II EMPLOYMENT OF NON-RESIDENT ALIENS 15 A Case Study on the Struggle of Filipino Workers Against Labor Contractualization 16 LABOR & EMPLOYMENT - How to fire your problem employee and avoid litigation? 17 A List of Important Terms in Employment Law with Definitions 18 G.R. No. 85279 July 28, 1989 - SOCIAL SECURITY SYSTEM EMPLOYEES ASSOCIATION vs. COURT OF APPEALS, ET AL. 19 DOLE On Wage System and Policy 20 REPUBLIC ACT NO. 6727 - Wage Rationalization Act 21 STANDARD CHARTERED BANK EMPLOYEES UNION (NUBE), 22 Call Center Labor Union a First in Business - Standard Chartered Bank 23 Call centers: boon or bane (2)

[edit] Business process outsourcing in the Philippines

Business process outsourcing in the Philippines

This article or section has multiple issues: (Tagged since April 2007.) Business process outsourcing or BPO is an emerging industry in the Philippines.

Business process outsourcing

This industry is regarded as one of the fastest growing industries in the world. International investment consultancy firm McKinsey & Co. predicts that the demand for outsourcing services will reach $180 billion in 2010, with the customer contact services, finance and accounting, and human resource sub-sectors taking up the biggest shares. When it comes to the trend in primary business requirements, experts are seeing a shift from cost-effectiveness to skills quality and competence. This development all the more strengthens the Philippines' position as an emerging global leader in the BPO industry (BPAP 2006).

The BPO boom in the Philippines is currently led by demand for offshore call centers. The Philippines raked in offshore service generating revenues of $2.1 billion in 2006, placing third behind India and China and slightly ahead of Malaysia. That's up 62% over the $1.3 billion it gained in 2004, and a huge increase from the start of the decade when the outsourcing industry in Manila employed just 2,400 people and the industry had revenues of merely $24 million. It is estimated that 200,000 people are working in 120 BPO (mostly Contact Centers) in the Philippines in 2006. Overall, Philippine BPO is forecasted to earn US$11 billion and employing 900,000 people by the year 2010 (Shameen 2006).

The recent growth spurt in the outsourcing industry in the Philippines has been fueled not by traditional low-value-added call centers but more higher-end outsourcing such as legal services, Web design, medical transcription, software development, animation, and shared services. Though call centers still form the largest part of the sector, the Philippines has begun leveraging its creative design talent pool, its large pool of lawyers, and its professionals in accounting and finance (Shameen 2006).

To achieve and sustain this rapid growth, the Philippine government is offering significant fiscal and non-fiscal incentives to attract foreign direct investment in these industries as part of the 2006 Investment Priorities Plan. The IPP was prepared by the Board of Investments (BOI), as the lead agency in promoting investments, focused on the sectors identified in the Medium-Term Philippine Development Plan (MTPDP) 2004-2010 (PBOI 2006).

Majority of the BPO facilities are located in Metro Manila and Cebu City although other regional areas such as Baguio City, Bacolod City, Cagayan de Oro, Clark (Angeles City), Dagupan City, Davao City, Dumaguete City, Lipa City and Iloilo City are now being promoted and developed for offshore operations.

The Philippines' Center for International Trade Expositions and Missions (CITEM) report for 2004 cited the Philippines as among the top 10 choices for offshore operations. Consultancy firm McKinsey & Co has been tapped to draft a five-year roadmap for the country's BPO industry.

Legal and medical transcription Medical transcrptionistThese companies do mostly medical reports, discharge summaries, operative reports, therapy/rehabilitation notes, chart notes, and hospital and clinic reports using state-of-the-art software and equipment from the U.S. They can transcribe up to 1,000 lines per medical transcriptionist per day at a 98% average accuracy rate, and they conduct training programs for their transcriptionists to continuously upgrade their performance. Most of them offer 24x7 services and have an average turnaround time of 24 hours, with the ability to deliver output in 3 to 6 hours in emergency cases.

The industry is now in the process of pursuing certification for individual companies’ services to further promote the country’s capabilities in this area. An industry alliance is also now being forged to ensure the sector’s continued growth in partnership with the government. Inclusion of medical transcription subjects in medical courses is likewise being pushed, to further expand the country’s pool of skilled medical transcriptionists.

Finance, logistics and accounting The Philippines is fast becoming a regional and global hub for shared corporate backroom operations, especially for financial services such as accounting and bookkeeping, account maintenance, accounts receivable collection, accounts payable administration, payroll processing, asset management, financial analysis and auditing, management consulting, inventory control and purchasing, expense and revenue reporting, financial reporting, tax reporting, and other finance-related services such as financial leasing, credit card administration, factoring and stock brokering; as well as for logistics management, and cargo shipment management.

Accounting primarily for these companies’ choice of the Philippines as the location for their shared backroom operations is the country’s rich pool of low-cost yet English- and IT-proficient business, accounting, HRM and engineering graduates. Moreover, the World Competitiveness Report 2001 ranked the Philippines 16th of 49 countries for “International Business Experience.” These professionals are also particularly noteworthy for their marked customer service orientation, superior work ethic, high degree of trainability, flexibility, multicultural adaptability, and loyalty. Rounding up the Philippines’ advantages as a BPO destination are its strategic location, the availability of prime yet low-cost real estate in the country, its good and increasingly cost-competitive telecommunications and other business infrastructure, its expatriate-agreeable lifestyle, and its progressively IT-supportive policies and incentives.

Software development and animation The Philippines is ranked #1 in the availability of knowledge-based jobs and workers worldwide, and ranked 4th among Asian nations in terms of labor quality, according to a survey conducted by the U.S. based Meta Group. Aside from the huge pool of productive, trainable and multi-skilled labor force, the country competes in the quality of its managers and information technology (IT) staff and engineers. The unique edge comes from a high level of proficiency in English (the Philippines is the 3rd largest English-speaking country in the world) (Gov.ph 2007). One of the top software development providers in the Philippines is Qtech BPO, http://www.qtechbpo.com.

Fueling the recent growth spurt in the outsourcing industry in the Philippines are more higher-end outsourcing services such as Web design, software development, and animation (Shameen 2006).

Filipino animators do well in the global market for animation, which is fast growing due to the increasing popularity of animation as an entertainment medium not just for free and cable TV and the movies but also for computer games, as well as an advertising medium, a graphics medium for Internet content, and an information and educational tool.

Their services range from full 2D and 3D animation, including pre- and post-production services such as layouting, in-betweening, clean-up, digital background production through scanning and pre-compositing, color styling, special effects creation, and digital ink and paint application, to flash animation and web design, graphic and art design, mobile applications, and art and animation training.

Major studios like Disney, Marvel, Warner Brothers and Hanna Barbera have offices in the Philippines (CNN 1995). Some of the latest works of Filipino animators include scenes in Pixar's Finding Nemo, Paramount Picture's Barnyard and Twentieth Century-Fox's Anastasia (ABS-CBN Interactive 2004).

[edit] Union Formation in Indian Call Centres/BPO

Union Formation in Indian Call Centres/BPO – The Attitudes and Experiences of UNITES Members Professor Phil Taylor and Dr. Dora Scholarios, Department of Human Resource Management, Strathclyde Business School , Glasgow, United Kingdom, Professor Ernesto Noronha and Dr. Premilla d’Cruz, Indian Institute of Management , Ahmedabad, India

EXECUTIVE SUMMARY

Introduction  The spectacular growth of the Indian call centre/BPO industry has thrust to the fore issues of working conditions and employee rights, and in particular the question of whether employees require an independent organization to represent their interests.

 Nasscom has consistently dismissed trade unions as being unnecessary in the Indian context on the grounds that pay levels and working conditions are excellent and that the very few workers’ grievances that do arise are resolved promptly by employers.

 It is claimed that human resource departments and their policies act as a substitute for the collective organisation and representation of employees. Employers have capitalized on BPO employees’ profound sense of professional identity and have captured the ‘hearts and minds’ of employees. According to this scenario, employees uncritically identify with their employers and managers in a working environment that is conflict-free.

 Employees’ ‘inclusivist’ strategies have been combined with tougher ‘exclusivist’ strategies. Three aspects are evident. 1. Indian third-party CEOs argue that unions should be resisted because they would damage Indian BPO’s ability to win contracts in a competitive global marketplace. 2. Many MNCs operating in India historically have opposed unions. 3. Many UK and European offshorers that recognize unions in their ‘home’ geographies have not extended collective bargaining and other rights to India.

 The official and dominant view is that unions are unwelcome and unnecessary, implying that any attempt to establish an independent employees’ organisation is destined to fail.

 However, the formation of UNITES in September 2005 indicates that for a minority of employee at least the establishment of such an organisation has been a welcome initiative.

 The justification for establishing UNITES as a separate project supported by the Asian and Pacific Regional Organisation of the Union Network International (UNI-Apro) was grounded in the understanding that the working conditions were sufficiently distinct for BPO/call centre employees as opposed to IT/software employees.

 Since inception UNITES has attempted to develop as a community, or network, of professionals which reflects the career-minded aspirations of its membership and constituency. Although it has sought to work in partnership with the industry, it has not hesitated to champion issues of employee rights, fairness, justice, dignity and corporate social responsibility, and to represent employees with genuine grievances.

 UNITES’ record since formation indicates genuine progress. It has secured legal status, has been granted provisional affiliation to INTUC (Indian National Trades Union Congress) and claims viable chapters in six areas (Bangalore, Hyderabad, New Delhi/NCR, Chennai, Mumbai and Kochi).

 From what we know already there are several reasons for this success. 1. First, there have been a number of high-profile campaigns on behalf of BPO employees, notably that for safer transportation following the horrific rape and murder of Prathibha Srikanth Murthy. 2. Second, UNITES have fought for the rights of workers, summarily dismissed with no pay when their employers abruptly closed their facilities. Prominent here is the case of Bangalore-based BelAir. 3. Third has been UNITES’ role of advocacy on behalf of individual members and employees. To take one example, UNITES has pursued through the Karnataka Women’s Commission the case of an employee of an Indian third party who had been ‘put on the bench’ i.e. suspended without pay as part of a drive for total labour flexibility. • Significant also has been UNITES’ success in negotiating four collective bargaining agreements with SMEs in the domestic sub-sector.

Aims and Objectives of Report

 This report is the outcome of a collaborative research project between academics based in the Strathclyde Business School in the United Kingdom, and the Indian Institute of Management in Ahmedabad, India. The study cuts new ground but builds upon several years’ research into Indian BPO, the experiences and attitudes of its workforce and initial union organising initiatives.

 The principal aim is to develop through rigorous research a greater understanding, than currently exists, of the attitudes and experiences of those working in Indian BPO.

 The prism for this study is the membership of UNITES. A key associated aim, then, is to understand the reasons why sizeable numbers of BPO employees have chosen to join an organization seeking to provide them with a voice and independent representation.

 Specific objectives include:  to understand the processes by which, and the reasons why, employees came to join UNITES.  to understand members’ attitudes to UNITES and trade unionism in general.  to evaluate the aspects of BPO professionals’ jobs and working conditions that might prompt them to join UNITES.  to assess the extent and sources of work-related pressure.  to explore aspects relating to work/non-work life relationship.  to evaluate employees’ perceptions of managerial effectiveness, including the ability of HR  to solve employees’ problems and substitute for their independent organisation.  to identify the obstacles facing UNITES as it seeks to recruit.

 The overall aims and specific objectives are related to the broader issues raised in the introduction. Is it valid to assert, as Nasscom and the employers do that an independent organization representing employees is unnecessary and unwanted in Indian BPO?

 The report draws upon a unique dataset, a detailed questionnaire of UNITES members combined with extensive semi-structured interviews that enable us to drill deep into their experiences and attitudes.

The Indian BPO Industry in Context

Notwithstanding the emergence of the Philippines, South Africa, China and Eastern Europe and Latin America states and many lesser locations, India remains the pre-eminent destination for offshored call centre services and an increasingly diverse range of business process activities.

 Indicative of India’s pre-eminence is the fact that current direct employment in BPO is calculated by Nasscom at 553,000. The pace of growth is dramatic – a fivefold increase in scarcely five years.

 The promise of cost savings remains the essential driver of offshoring for companies based in the developed economies. For several years Nasscom has claimed these at 40-50%, though recent estimates suggest 25-40%. The most significant element is the labour cost differential of its English-speaking, University-educated workforce. Nevertheless, labour costs have risen by at least 10-15% p.a. in the last three years.

 To these fundamental country advantages can be added many other economic, political and infrastructural factors facilitating migration.

 From the government’s perspective, the BPO industry has become strategic to the dynamic growth of India’s new economy, a vital source of foreign direct investment (FDI) and export revenue.

 A highly influential factor in today’s BPO market is the underlying imbalance in labour supply and demand, which Nasscom-McKinsey predict will mean a shortfall of half a million BPO employees by 2010. Consequently, many companies are experiencing intense labour management challenges in relation to recruitment, training and attrition.

 As a consequence of ‘overheating’ in Tier 1 cities, and specific clusters within these locations, companies have attempted to leverage lower costs and relatively untapped sources of labour in Tier 2 and 3 cities.

 India does not possess an inexhaustible supply of graduates with the linguistic and cultural capabilities as deemed acceptable by Indian providers, their western clients and captive companies. Nasscom-McKinsey estimates that only 10-15% of graduates have the skills for direct employment, and then the industry hires only 3-5% of applicants.

 Attrition (regret) remains the most enduring and pressing problem. Running at an average of perhaps 65-75% it exceeds 100% in certain companies, locations and for particular processes.

 The industry is structurally heterogeneous with different organizational types; in-house ‘captives’, multinational service providers, Indian third-party outsourcers and an emerging domestic segment. Differentiation exists in scale with very large employers alongside a plethora (excess/overabundance) of SMEs.

 Perhaps 60-65% of employment is still in voice services despite the relative growth of various back office activities.

 Despite the growth of KPO and some increasing complexity, in overall terms the BPO industry still tends to provide largely standardized, routinized services of generally low complexity. The migration process often involved a form of ‘Taylorism through export’.

 North America accounts for perhaps 70% of the Indian BPO market while Europe (principally the UK) accounts for 20%.

The BPO Workforce and the Conditions of Work

 Considering evidence from existing studies on working conditions, it is suggested that tight monitoring, surveillance and a plethora (excess/overabundance) of controls are widely implemented, which minimize employee discretion.

 Many agents have reported an experience of work as highly pressurized, even frequently stressful. Evidence suggests a growing intensification of work, which is often couched in the language of ‘operational excellence’ or the need to realize productivity improvements.

 Since the need to reduce the cost base will continue, the outcome will be increasing pressure on employees through longer hours, fewer and shorter breaks and tighter targets. The rise in the rupee against the dollar (the main currency of contracts) is likely to exacerbate these trends.

 Existing literature has highlighted how the distinctive characteristics of Indian BPO, such as nocturnal call-handling, have exacerbated the generic pressures arising from the nature of work organisation.

 Related to the general absence of union recognition and collective bargaining, researchers have identified a ‘democratic deficit’ in Indian BPO. Employees report managerial arbitrariness in their treatment. Top-down methods dominate employers’ communications systems and eschew employee involvement in decision-making.

Sources and Methods

 The project was initiated by members of the research team. While UNITES granted access and provided full co-operation the project and the findings presented herein are wholly independent of UNITES.

 The survey instrument included questions formulated specifically for this project and questions utilised effectively in previous surveys of union members and/or call centre workers in the UK. The questionnaire was structured in accordance with the research aims and objectives.

 The distribution strategy aimed to capture as many UNITES members as possible from the segments of Indian BPO (April- June 2007). A total of 879 usable questionnaires were received from UNITES members.

 Questionnaire data is supplemented by evidence from 45 semi-structured interviews of representative samples from four locations.

Research Findings (Profile of respondents) • 70% of respondents were based in Indian domestic companies, with 22% in captives and 8% in Indian third parties. Reflecting existing knowledge the composition of the workforce, there was an equal gender distribution, the mean age of respondent members was 24 years and overwhelmingly they were employed on full-time contracts. • Around 70% in domestic companies and third parties were engaged in purely voice work. In captives, 67% combined voice with back office work. • The reported mean of 216 hours worked per month indicates a long hours culture, most pronounced in captive and domestic centres. • Average tenure was 1½ years although this was lower in domestic than in domestic companies at just over a year. • Insights are provided of career orientations. Overall, only a quarter believed their current job was one that they would stay in or was part of their career advancement. A majority in domestic centres, compared to 30% in captives and 22% in third parties, believed their current job was part of a career that would take them to other BPO companies. • While large numbers stated that they wanted to move employer for better pay, conditions and promotion prospects, many others expressed their desire to build a career with their current employer.

Finding out and joining UNITES • The overwhelming majority found the process of joining easy. Initial awareness of UNITES came primarily from friends or relatives, either in the same workplace or in different BPOs. Also important, and cited by more than a quarter, was UNITES website. • Overall 80% stated that they had been signed up by a UNITES member in the workplace. As confirmed by interview evidence, the key to recruitment is the presence of supportive members and colleagues at workplace level who act as leaders in the making. • Apparently remote contact and individuals taking the initiative to join themselves (e.g. joining on-line, sending forms to UNITES office) are much less important than organic workplace recruitment. • The most common answer by respondents when asked how UNITES could improve recruitment was for the organisation to gain a higher profile and achieve greater media coverage, as it had through the Prathibha and BelAir cases.

Reasons for Joining UNITES • Undoubtedly employees have joined UNITES for a combination of reasons. The most frequently-cited single reason given was that UNITES would improve pay and conditions (75% of respondents). • Even in conditions where there is no collective bargaining this was an important reason, cited by 81% in captives and 40% in third parties. This seems to be related both to UNITES’ intervention on behalf of members with pay grievances and the belief that UNITES would play an important role in the future in this respect. • Second in terms of importance was UNITES’ ability to provide information or advice about rights, cited by more than ⅔ of members in captives and almost ⅔ in domestic centres. Interview evidence confirmed this. ‘I think it [UNITES] is very useful for people who are trying to enter the BPO industry…when they have nowhere to go and they feel they do not have that voice to speak up, and when they feel that there is a lot of prejudice and…so many problems’. (BPO agent, captive, Bangalore) • Findings resonate with arguments emphasising the professionalism and aspirant careerism of employees. For example, 67% in captives said they joined UNITES because it enabled them to access information on pay and conditions across the industry, and 29% that they joined because UNITES provided training that would enhance ‘skills and knowledge’. • Yet there is evidence of a more explicit trade union orientation. Thirty-eight percent stated they joined because they believe in trade unions; 62% for those in captives. That such ideological conviction exists, albeit amongst a minority of UNITES members, who as yet are themselves a fraction of the workforce, challenges the view that there is universal antipathy to trade unionism amongst BPO employees. • A majority in captives and slightly less than a minority in third parties said they had joined because they believed BPO professionals should have their own independent organisation to represent their interests. • Collective impulses can be discerned in the fact that many had joined because colleagues were members and because they found in UNITES people with the same attitudes as themselves. • Almost six-in-ten in captives and third parties said they joined because they believed UNITES would support them if they had a work problem. • In answers to open questions, respondents emphasised the importance of having a united voice for employees. They also stressed the positive role that UNITES played in solving problems constructively and ‘peacefully’. This is far from the adversarial role and damaging presence that the employers maintain would result from a union in Indian BPO.

Working conditions prompting colleagues to join UNITES • The most significant issue reported by UNITES’ members that might prompt their non-union colleagues to join the organisation was that of working times. This was reported by 65% overall as very important and is closely related to travel-to-work times reported by 47%. • Next in terms of overall importance were concerns over the security of employees which remain despite claimed improvements in companies’ transportation practices following Prathibha Murthy’s murder. • Perceived anxieties over job security came next with 62% of responses. Fears seem to be related both to general concerns over the vulnerability of Indian BPO to lower-cost competition and insecurities arsing from management’s treatment of individual workers. The followingcomment by a Bangalore domestic member illustrates the extreme case: ‘…certain employees could not do anything except succumbing to the managerial discretion. They have nobody to fall back to rather in the sense somebody they could look for some help and support…once in a while where there are people who seem to be targeted, who absolutely have no rights whatever of any kind. Because they are helpless, they are victimised or probably they have to succumb to the entire thing. Eventually they leave sacrificing the salary…’ • Consistent to an extent with the evidence regarding members joining, pay was seen as very important by almost half of respondents. This evidence suggests that pay concerns amongst employees might be more widespread than the dominant view of the industry. • Mention must be made of the task-related concerns of pressure of work, targets and supervisory pressure. Around one-in-two believed that targets would prompt their colleagues to join. Interview evidence provides graphic examples: ‘In XXX daily targets are given because it is a typical call centre. Obviously the call centre is a target concept. At a stretch, a technician is supposed to take at least 50-60 calls, that is typically a Herculean task. Time is money. But there should be something called time for relaxation. Huge call volumes. People are stopped from going for their breaks or their breaks are postponed to a large extent, their brain stops working and they start shouting at customers. Once they find that the person has shouted at the customer, he is thrown out of the job. But they don’t address what is the problem or the reason for that action.’ (Voice agent, Chennai captive) • Apropos of previous comments on health and safety, 63% of captive and 48% of third party respondents thought this was a very important reason that might prompt non-members to join. • Finally, about six-in-ten overall considered the need for employee voice to be a very important factor in prompting non-members to join.

Degree of pressure felt on a normal working day • Two-thirds overall reported being ‘very’ or ‘quite pressurised as a result of work on a normal day. Members in domestics, women and those handling outbound calls reported the greatest pressure.

Aspects of work which contribute to pressure of work • The greatest reported source of pressure was ‘having to meet targets’ with almost nine-in-ten overall reporting that this contributed ‘a great deal’ or ‘to some extent’ to the pressure of work. This finding seems to confirm what we know about the call centre working environment in developed countries and about the implementation of targets as a result of the strict adherence to SLAs (Service Level Agreements) in India. • Other distinctive aspects of call centre work organisation are perceived as important sources of pressure. Notable are calls queuing and waiting in Indian third party and captive operations, but important also are not enough time between calls, difficult customers, repetitiveness of calls, having to keep to a script, always having to ‘smile down the phone’ and all monitoring. These are lesser, but far from insignificant. • Additional sources of pressure appear to be more acutely felt in international facing operations than in domestics. These include turnaround times, the lack and brevity of breaks, fear of making mistakes and mutual misunderstanding of customers. • Travelling times and working shifts were also reported as particular sources of pressure. • The findings in this section confirm the perceived problem of supervisory pressure. Respondents in captives (69%), more than domestics (52%), reported that this contributed either a great deal or to some extent to the pressures of the job. Related to this were inadequate staffing levels reported by 66% in third parties and 63% in captives. • Finally and unsurprisingly the pressures of linguistic protocols were seen as a greater source of pressure in international facing centres.

Work/non-work relationship and work-life balance • Tensions deriving from the work-life boundary were felt much more by those in captive and third party centres than in domestic operations. The cause of this disparity is the particular patterns of working associated with services directed at overseas markets in combination with the aspects of work organisation identified. • For example, while 30% of members in domestics reported that they felt exhausted after work ‘all the time’ or ‘quite often’, 74% in third party centres and 84% in captives did so. While less than one-third in domestic centres stated that their sleep was disrupted by work concerns, the proportions rose to 62% for captives and 81% for third parties.

Perceptions of management effectiveness • The findings raise questions regarding the received wisdom that workforce management in Indian BPO is conducted effectively and the positive view that employees are communicated with and involved in decision making • Management was seen as most unsuccessful in listening to employees’ ideas about how the service could be improved (73%), in involving employees, in target-setting (68%) and in decisions affecting them (65%). • Majorities perceived management as being either or very unsuccessful in giving feedback on caller satisfaction (58%), developing effective teamwork (55%) and giving employees the information needed to do the job (51%). • Evidently respondents perceive management as being unsuccessful in protecting employees from the pressures arising from task performance; 71% thought management unsuccessful in preventing work pressures from being excessive, in understanding the pressures of the job and in managing call volumes. • Seventy per cent perceived management as unsuccessful in providing career progression and 62% in providing sufficient training and development. • More than two-thirds overall (69%) and a majority (51%) perceived management to be either very or quite unsuccessful in respectively varying tasks and making the job interesting. • Almost two-thirds (64%) perceived management as unsuccessful in terms of fair allocation of tasks. As far as voice work is concerned 59% reported that management was unsuccessful in monitoring calls fairly. • Indian domestic operators consistently received the lowest ratings of success and were closely followed by captives. Third party operators consistently received the highest ratings of success from respondents.

Attitudes to management in general • Respondents’ general attitudes to management reflected little in the way of common aims and values, and an overall belief that managements are interested mainly in maximising efficiency. • There was near-unanimous agreement (96%) that management are only interested in statistics and efficiency. • Only 28% overall agreed with the statement that management and employees have common aims. Making due allowance for the fact that this is a survey of UNITES members and not of the BPO population this is nevertheless a significant finding for it points to an attitudinal pluralism that conflicts with the depiction of the industry as wholly dominated by unitarist attitudes.

HR as a substitute for independent employee representation • Of those respondents who had turned to HR to seek the resolution of problems, those in captives and third parties were considerably more positive about HR’s success than those in domestics. Strikingly, only 7% of domestic members thought HR had successfully taken action to resolve their problems compared to 40% of captive and 59% of third-party members. • From another perspective, these figures indicate that a majority in captives (60%) and a sizable minority in third-party centres (41%) who had turned to HR did not have their problems resolved to their satisfaction. • For those who had not turned to HR with a problem, the two most frequent responses were to do nothing (55% captives, 27% third-parties) or to seek support from friends and personal networks (23% captives, 25% third-parties). • All this suggests a potential role for UNITES if it is able to connect with those employees who have not been able to gain redress from HR management. UNITES might be able to give advice or to play the role of advocate on condition that becomes sufficiently embedded in employees’ social networks.

Perceived obstacles to joining UNITES • In terms of ‘exclusivist’ reasons, the most important is the perception that companies are opposed to UNITES, with 57% saying that this was a very important problem. • More than one-in-two overall thought that their colleagues’ fear that they would be terminated if they joined UNITES was a very important obstacle preventing recruitment. The perception of this problem was most pronounced amongst respondents in domestic centres (60%) and less so amongst captives (45%) and third party centres (25%). • In addition 45% overall believed that joining UNITES would affect their careers, again most frequently expressed by those in domestics. • Interview data illustrates UNITES members’ perceptions of BPO employers’ explicit anti-unionism. The testimony of the individual who maintains UNITES’ website is telling. He reported that many employees when making contact with UNITES might say, ‘Can I join in secret?’ or ‘I am a member but please do not let it be known that I am a member’. Fears were expressed that they would be terminated if their membership was made known to their employers. • Others reported how it was not merely UNITES members who ran the risk of being terminated, but employees who were perceived in other regards as being troublesome or who raised their voices. • Given this evidence of fear of reprisals it is necessary to reflect upon the pertinent ILO Conventions; 87 (Freedom of Association and Protection of the Right to Organise) and 98 (Right to Organize and Collective Bargaining). The evidence suggests breaches of these conventions. At the very least, many employees would appear to believe that these rights do not apply and it seems that they are not making efforts to ensure that employees are appraised of their rights. • The most important of the ‘inclusivist’ reasons relates to the effects of high salaries, with 57% overall believing that this was a very important deterrent, although this was so for only 24% in third parties. • Next in order of importance (54%) overall was the perception that employees see themselves as professionals. • Most of the other ‘inclusivist’ factors (employees believe that the employer is all they need, many BPO professionals do not see the need for UNITES or think that they will be promoted or believe that their problems will be solved by their managers) were seen to be very important by around one-in-three. • ‘Inclusivism’ would certainly appear to present a major obstacle for UNITES. Nevertheless, there do appear to be limitations on the extent to which companies have successfully prosecuted their cultural control strategies. Only 14% overall believe that employers’ capture of employees’ hearts and minds is a very important obstacle facing UNITES. • The youth and inexperience of the workforce are certainly issues, considered by 59% of respondents to be very important. • The much reported factor of high attrition was seen as a very important factor making it hard to recruit and build a stable membership by 54% in domestic centres and around a third in both captives and third parties. • Intense labour turnover has contradictory effects as far as UNITES is concerned. On the one hand, labour is placed in a potentially strong bargaining position but, on the other hand, employees tend to pursue individual means to capitalise on relative scarcity. • High rates of attrition may present UNITES with an opportunity. Certain employers have conceded that unions may be able to play a role that assists them in controlling what many consider to be the most acute problem facing the industry. • Nevertheless, the concrete challenge facing UNITES is how to build clusters of members in the fast-flowing currents of employee mobility. • Finally, considering the more overtly ideological difficulties facing UNITES, almost half thought that the fact that their many BPO employees do not believe in unions was a very important problem.

Conclusions • It is not that the pessimistic scenario which emphasises the difficulties facing UNITES is entirely incorrect. There is considerable evidence that UNITES members perceive and may indeed experience employers’ combatitative anti-unionism. Clearly Nasscom and the employers’ messages that trade unionism is unnecessary and unwanted do have some purchase amongst employees whose backgrounds, youth and lack of experience and understanding do not automatically predispose them to think in collectivist terms. • Clearly many do have a profound sense of professional identity and aspire to a career in the industry. High attrition encourages many to think in individualistic terms. • However, as the evidence suggests the promises and expectations of all these hopeful graduates are by no means all fulfilled. The testimony of this Bangalore call centre agent is apposite. ‘More than 50% come to this industry just for the sake of the money and enough to make a good career, but in the process some fail to accomplish that. Somehow or other they get into the tangle with the management. Others know that and they cannot give their voice for the others with the fear that they might lose their job.’ • Focusing exclusively on the obstacles facing UNITES, obscures the fact that a majority of members do not see their interests and those of their employers as identical. Nor is there universal support for the view that sophisticated HRM policies act as a substitute for, and render unnecessary the independent representation and organisation of employees. There is a democratic deficit in Indian BPO. • Although we cannot generalise the findings from this survey of UNITES members to the entire BPO workforce, the host of grievances uncovered, from the apparently trivial to the profound, suggest that they might be widespread throughout the industry, although experienced with differing intensity and regularity depending on sub-sector, company or process. • As far as captives and third party centres are concerned, the position that Indian BPO occupies in the transnational servicing chains of the corporations based in the global North has led to lean regimes dominated by cost-cutting imperatives. This broader political economy ultimately creates an experience of work as intense, pressurised and often frequently stressful. These pressures in international-facing centres are replicated in the rapidly growing domestic segment of the industry. • There is evidence that Indian BPO employees are being driven harder through the process excellence agenda, in order to compensate for rising costs. The significance of this intensification is to highlight further the potential gap between employees’ expectations that employment in BPO would universally provide stimulating work and a prestigious career and the frequent reality of repetitive and tightly-monitored work routines and the fact that, despite real career opportunities, not everyone can gain promotion nor escape the phones or routine data processing. Notwithstanding the attraction of levels of pay that are generally unavailable elsewhere for these graduates, the quotidian experiences of demanding work provides an inescapable context. • The evidence is unequivocal that there is a constituency for UNITES in Indian BPO. • The broader task facing UNITES is how to reconcile the tension between the need to reflect the professional aspirations of its members and the need to act more overtly as a trade union. It is only through experience that UNITES will develop the understanding of what tactics are appropriate in a particular set of circumstances. • This is not to advocate that UNITES necessarily adopts a conflictual or adversarial role. UNITES is developing agendas that can advance the interests of its professional members, whilst simultaneously demonstrating the constructive role it plays in representing employees. • UNITES has made genuine progress, albeit limited by its youth and inexperience, in recruiting from the virgin workforces of Indian BPO. • A member working for a captive operation based in Hyderabad expressed the possibilities for organic growth which arise through engaging positively with wider layers of employees at workplace level.

‘If you have 15 good people who understand you well, those 15 are going to draw even more members. That chain goes on. That 15 will get another 15 strong people. That is the way you can build…’ • Finally, we agree with Rene Ofreneo and his colleagues when they state that the BPO ‘industry represents an entirely new frontier for organising trade unions’. The record of UNITES suggests that a cautiously positive evaluation of its early achievements is appropriate. There is certainly no shortage of issues around which it can organise and begin to redress the democratic deficit that currently exists in Indian BPO.

Company Union

A company union, business union or, pejoratively, a yellow union is a union which is located within and run by a company, and is not affiliated with an independent trade union. Company unions were outlawed in the United States by the 1935 National Labor Relations Act, due to their use as agents for interference with independent unions, but company unions were and are common in many other countries. Some labor organizations are accused by rival unions of behaving like "company unions" if they are seen as to have too close and cordial a relationship with the employer, even though they may be recognized in their respective jurisdictions as bona fide trade unions[1]. Some business theorists suggest that a legitimate place exists for company unions in the modern world.

Contents 1 Definition and theory 2 United States 2.1 Ludlow massacre and Rockefeller Plan 2.2 Labor Relations Act and aftermath 3 Communist and former Communist nations 4 Japan 5 Mexico 6 Guatemala

Definition and Theory As with labor concepts like the works council, the definition of a company union is not ironclad. Economist Leo Wolman wrote in 1924: "[T]he distinction … between trade unions and other workmen's associations is frequently a vague and changing one. What is today a company union may tomorrow have all of the characteristics of a trade union."[2] The International Labor Organization defines a company union as "A union limited to a single company which dominates or strongly influences it, thereby limiting its influence."[3]

Supporters of company unions claim they are more efficient in responding to worker grievances than independent trade unions. Proponents also note that trade unions do not necessarily have the company's best interests at heart; company unions are designed to resolve disputes within the framework of maximum organizational profitability.[4]

Opponents use this same logic to argue against company unions. The independent nature of trade unions, they argue, provides them with an outsider's perspective necessary for just resolution of conflict. Furthermore, independent unions are able to propose large-scale changes to work agreements – such as overtime rules and salary schedules – whereas company unions usually address concerns on a smaller scale.[5]

Some opponents also claim that company unions are used as fraudulent institutions, purporting to represent workers while actually ignoring (or working against) the best interests of employees. However, at least one economist advances the idea that in the first part of the 20th century, many companies were hesitant to adopt the company union model, for fear that it might lead to support for an independent trade union.[6]

A 2002 World Bank publication cites research from Malaysia and India which produced conflicting results as to the wage differential provided by trade unions compared to company unions. (Malaysia saw improved wages through independent unions, India did not.) The authors indicate the latter "may reflect the specific circumstances that prevailed in Bombay at the time of the study.")[7]

Labor Union in United States Company unions were popular in the United States during the early 20th century, but were outlawed under the 1935 National Labor Relations Act. Recently, some politicians, economists, and management theorists have advocated for a reversal of this policy.

Ludlow massacre and Rockefeller Plan In 1914, 16 miners and family members (and one national guardsman) were killed when the Colorado National Guard attacked a tent colony of striking coal miners in Ludlow, Colorado. This event, known as the Ludlow massacre, was a major public relations debacle for mine owners, and one of them—John D. Rockefeller, Jr.—hired labor-relations expert William Lyon Mackenzie King to suggest ways to improve the tarnished image of his company, Colorado Fuel and Iron. One of the elements of the Rockefeller Plan was to form a union, known as the Employee Representation Plan (ERP), based inside the company itself. The ERP allowed workers to elect representatives, who would then meet with company officials to discuss grievances.[8]

The ERP was accepted by the miners, and its success in providing an alternative to negotiations with the United Mine Workers led other business owners around the country (and even overseas) to consider replicating it.[9] In 1933 the miners voted to be represented by the UMW, ending the ERP at Colorado Fuel and Iron. Company unions, however, continued to operate at other mines in Pueblo, Colorado and Wyoming,[10] and the ERP model was being used by numerous other companies.[11] (The Brotherhood of Sleeping Car Porters was organized in part to combat the company union at the Pullman Company.)[12]

[edit] COMPANY UNION

Company Union

A company union, business union or, pejoratively, a yellow union is a union which is located within and run by a company, and is not affiliated with an independent trade union. Company unions were outlawed in the United States by the 1935 National Labor Relations Act, due to their use as agents for interference with independent unions, but company unions were and are common in many other countries. Some labor organizations are accused by rival unions of behaving like "company unions" if they are seen as to have too close and cordial a relationship with the employer, even though they may be recognized in their respective jurisdictions as bona fide trade unions[1]. Some business theorists suggest that a legitimate place exists for company unions in the modern world.

Contents 1 Definition and theory 2 United States 2.1 Ludlow massacre and Rockefeller Plan 2.2 Labor Relations Act and aftermath 3 Communist and former Communist nations 4 Japan 5 Mexico 6 Guatemala

Definition and theory As with labor concepts like the works council, the definition of a company union is not ironclad. Economist Leo Wolman wrote in 1924: "[T]he distinction … between trade unions and other workmen's associations is frequently a vague and changing one. What is today a company union may tomorrow have all of the characteristics of a trade union."[2] The International Labor Organization defines a company union as "A union limited to a single company which dominates or strongly influences it, thereby limiting its influence."[3]

Supporters of company unions claim they are more efficient in responding to worker grievances than independent trade unions. Proponents also note that trade unions do not necessarily have the company's best interests at heart; company unions are designed to resolve disputes within the framework of maximum organizational profitability.[4]

Opponents use this same logic to argue against company unions. The independent nature of trade unions, they argue, provides them with an outsider's perspective necessary for just resolution of conflict. Furthermore, independent unions are able to propose large-scale changes to work agreements – such as overtime rules and salary schedules – whereas company unions usually address concerns on a smaller scale.[5]

Some opponents also claim that company unions are used as fraudulent institutions, purporting to represent workers while actually ignoring (or working against) the best interests of employees. However, at least one economist advances the idea that in the first part of the 20th century, many companies were hesitant to adopt the company union model, for fear that it might lead to support for an independent trade union.[6]

A 2002 World Bank publication cites research from Malaysia and India which produced conflicting results as to the wage differential provided by trade unions compared to company unions. (Malaysia saw improved wages through independent unions, India did not.) The authors indicate the latter "may reflect the specific circumstances that prevailed in Bombay at the time of the study.")[7]

Labor Union in United States Company unions were popular in the United States during the early 20th century, but were outlawed under the 1935 National Labor Relations Act. Recently, some politicians, economists, and management theorists have advocated for a reversal of this policy.

Ludlow massacre and Rockefeller Plan In 1914, 16 miners and family members (and one national guardsman) were killed when the Colorado National Guard attacked a tent colony of striking coal miners in Ludlow, Colorado. This event, known as the Ludlow massacre, was a major public relations debacle for mine owners, and one of them—John D. Rockefeller, Jr.—hired labor-relations expert William Lyon Mackenzie King to suggest ways to improve the tarnished image of his company, Colorado Fuel and Iron. One of the elements of the Rockefeller Plan was to form a union, known as the Employee Representation Plan (ERP), based inside the company itself. The ERP allowed workers to elect representatives, who would then meet with company officials to discuss grievances.[8]

The ERP was accepted by the miners, and its success in providing an alternative to negotiations with the United Mine Workers led other business owners around the country (and even overseas) to consider replicating it.[9] In 1933 the miners voted to be represented by the UMW, ending the ERP at Colorado Fuel and Iron. Company unions, however, continued to operate at other mines in Pueblo, Colorado and Wyoming,[10] and the ERP model was being used by numerous other companies.[11] (The Brotherhood of Sleeping Car Porters was organized in part to combat the company union at the Pullman Company.)[12]

Labor Relations Act and aftermath - National Labor Relations Act

In 1935, the National Labor Relations Act (also known as the Wagner Act) was passed, dramatically changing labor law in the United States. Section 8(a)(2) of the NLRA makes it illegal for an employer "to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it."[13] Company unions were considered illegal under this code, despite the efforts of some businesses to carry on under the guise of an "Employee Representation Organization" (ERO).[14]

In the mid-20th century, managers of high-tech industry like Robert Noyce (who co-founded Fairchild Semiconductor in 1957 and Intel in 1968) worked to their organizations of union interference. "Remaining non-union is an essential for survival for most of our companies," Noyce once said. "If we had the work rules that unionized companies have, we'd all go out of business."[15]

One way of forestalling unions while obeying the Wagner Act was the introduction of "employee involvement (EI) programs" and other in-house job-cooperation groups. One company included them in their "Intel values," cited by employees as reasons why they didn't need a union. With workers integrated (at least on a project level) into the decision-making structure, the independent union is seen by some as an anachronism. Pat Hill-Hubbard, senior vice-president of the American Electronics Association, said in 1994: "Unions as they have existed in the past are no longer relevant. Labor law of 40 years ago is not appropriate to 20th century economics." Author David Bacon calls EI programs "the modern company union."[16]

In 1997, pursuant to a report from the Commission on the Future of Worker-Management Relations, Republicans in the U.S. Congress passed the "Teamwork for Employees and Managers" (TEAM) Act. The bill would have weakened federal regulations against employer establishment and control of employee involvement programs.[17] Although the bill indicated that EI plans should not be used specifically to discredit or prevent union organization, trade unions in the United States vehemently opposed the bill. Jim Wood, an AFL-CIO leader in Los Angeles, said the "Team Act actually would take us backward to the days of company unions."[18] President Bill Clinton vetoed the bill.

Communist and former Communist nations Trade unions in the People's Republic of China are often identified as government unions, by virtue of their frequent close relationship with national planning bodies. Although market reforms are changing the relationship between workers and the All-China Federation of Trade Unions (China's sole national trade federation), such as U.S. social critic Ralph Nader still say they are "government-controlled with the Chinese communist party turning them into what would be called 'company unions' in the U.S."[19]

In many Post-Soviet states, including the Russian Federation, the economic collapse of the early 1990s brought a sharp decline in labor activity. As a result, official union structures often function as de facto company unions.[20]

Labor unions in Japan Company unions are a mainstay of labor organization in Japan, viewed with much less animosity than in Europe or the United States. Unaffiliated with RENGO (the largest Japanese trade union federation), company unions appeal to both the lack of class consciousness in Japanese society and the drive for social status, which is often characterized by loyalty to one's employer.[21]

Labor unions in Mexico In the 1930s, unions in Mexico organized the Confederation of Mexican Workers (Confederación de Trabajadores de México, CTM). The state of Nuevo Leon, however, coordinated its workers into sindicatos blancos ("white unions"), company unions controlled by corporations in the industrialized region.[22]

Labor unions in Guatemala In 1997, the government of Guatemala received a loan for 13 million USD loan from the World Bank to privatize its seaport, electrical grid, and telephone and postal services. Canada Post International Limited (CPIL), a subsidiary of Canada Post, and its partner International Postal Services (IPS), was contracted to manage the privatization process. In anticipation of union resistance, CPIL-IPS agents reportedly used company unions, along with bribery and death threats, to ensure a smooth transition.[23]

Company unions are also prevalent among the maquiladoras in Guatemala.[24]

[edit] New Unionism

New Unionism , is a term which has been used twice in the history of the labour movement, both times involving moves to broaden the union agenda.

First was the development within the British trade union movement in the late 1880s. The New Unions differed from the older craft unions in several respects.

They were generally less exclusive than craft unions and attempted to recruit a wide range of workers. To encourage more workers to join, the New Unions kept their entrance fees and contributions at a relatively low level. Some new unions, such as the Dockers' Union and the Gasworkers developed in the direction of general unionism.

They recruited unskilled and semi-skilled workers, such as dockers, seamen, gasworkers and general labourers.

At the outset, the New Unions were associated with militancy and willingness to take industrial action, unlike the more conciliatory craft unions. A notable strike associated with the New Unions was the London Dock Strike of 1889. Many of the New Unions had leaders who espoused socialist ideas. Such leaders included Tom Mann, Ben Tillett, Will Thorne and John Burns. In recent decades the traditional view of the New Unions as militant, fighting unions informed by a socialist politics has been modified. Although the New Unions sponsored many large strikes in their early years, most in fact favoured conciliation and accommodation with the employers. Similarly, although New Union leaders espoused socialism it was often of a moderate kind.

The most prominent New Unions were: Dockers' Union National Union of Dock Labourers Gasworkers Union National Sailors' and Firemen's Union

The second time the term New Unionism was used covers a period from the late 1980s until the present day. In 1989 US labour relations academic Charles Heckscher published "The New Unionism: Employee Involvement in the Changing Corporation" (Industrial and Labor Relations Review, Vol. 42, No. 3 Apr., 1989, pp. 463-465), and this became one of a series of influential papers which encouraged the union movement to reconsider questions of industrial democracy. The UK Trades Union Congress ran an ambitious New Unionism project from 1997 to 2003, seeking to apply a dual strategy of organizing and partnership in an attempt to reinvigorate the union movement. This period saw an end to the decline in union membership, but the net effect is still subject to debate within the movement. See http://www.tuc.org.uk/newunionism/

More recently unions such as the Service Employees International Union (SEIU) in North America and the Public Services Association (PSA) in New Zealand have combined innovative organizing and partnership combinations with notable success, leading to large and sustained membership gains (about 50% in each case) and increased influence and activism at workplace level.

An international New Unionism network was launched in 2007 to bring unionists and labour supporters together around developing and applying these principles. The network provides fora and other resources for those interested in implementing the agenda.

Social Movement Unionism is a trend of theory and practice in contemporary trade unionism. Strongly associated with the organising model of trade unionism, it also overlaps with Community Unionism. Social Movement Unionism attempts to integrate workers, trade unions and the labour movement into broader coalitions for social and economic justice. Thus, in principle, unions and other organisations support each other in what are seen as mutually beneficial goals.

The campus living wage work of unions, which have frequently worked with chapters of United Students Against Sweatshops, are an example of the principle in practice. Similarly, the 'Teamsters for Turtles' (as their t-shirts had it) at Seattle signalled a willingness of sections of the labour movement to engage with environmental concerns. Other prominent examples include the relationship between Reclaim the Streets and the Liverpool Dockers (UK) during their strike in the late '90s; and the relationship between the Coalition of Immokalee Workers and progressive US students during the Boot the Bell campaign.

Union initiatives Union support for social justice causes can come from within the scope of their respective collective agreements. Unions are increasingly demanding that new collective agreements contain clauses that are intended to further social justice. The inclusion of social justice support in a negotiated contract, compels all parties to support these causes in a legally binding way. This may extend to funding the education of rank and file union members in various social justice issues (ie. fair trade policies, anti-poverty initiatives, anti-globalization campaigns and race, gender and human rights issues, etc.) and/or financial or technical support for non-union causes. Generally speaking, social movement unionism advocates greater levels of democracy and equality for all people, regardless of union membership.

[edit] Collective Bargaining

Collective Bargaining

During contract negotiations or collective bargaining, some unions are pushing for the inclusion of various social justice clauses to be added to the collective agreement. One example of this may be a demand that a percentage of future wages be transferred to a fund to be used to effect social justice issues nationally or internationally on behalf of the union membership. Another example is a recent trend of demanding a portion of hourly wages to be deferred to a P.E.L. (paid education leave) fund, to allow union members to leave the work place for a period of time, at no loss of pay, so they can attend social justice seminars and educational programs. These demands are forwarded as proposals to the employer during collective bargaining negotiations.

Collective bargaining is the process whereby workers organize collectively and bargain with employers regarding the workplace. In various national labor and employment law contexts collective bargaining takes on a more specific legal meaning. In a broad sense, however, it is the coming together of workers to negotiate their employment.

A Collective agreement is a labor contract between an employer and one or more unions. Collective bargaining consists of the process of negotiation between representatives of a union and employers (represented by management, in some countries by employers' organization) in respect of the terms and conditions of employment of employees, such as wages, hours of work, working conditions and grievance-procedures, and about the rights and responsibilities of trade unions. The parties often refer to the result of the negotiation as a Collective Bargaining Agreement (CBA) or as a Collective Employment Agreement (CEA).

Contents 1 Theories 2 United Kingdom 3 United States 4 Europe

Theories A number of theories – from the fields of industrial relations, economics, political science, history and sociology (as well as the writings of activists, workers and labor organizations) – have attempted to define and explain collective bargaining.

One theory suggests that collective bargaining is a human right and thus deserving of legal protection. Article 23 of the Universal Declaration of Human Rights identifies the ability to organise trade unions as a fundamental human right.[1] Item 2(a) of the International Labor Organization's Declaration on Fundamental Principles and Rights at Work defines the "freedom of association and the effective recognition of the right to collective bargaining" as an essential right of workers.[2]

In June 2007 the Supreme Court of Canada extensively reviewed the rationale for considering collective bargaining to be a human right. In the case of Facilities Subsector Bargaining Assn. v. British Columbia, the Court made the following observations:

The right to bargain collectively with an employer enhances the human dignity, liberty and autonomy of workers by giving them the opportunity to influence the establishment of workplace rules and thereby gain some control over a major aspect of their lives, namely their work. Collective bargaining is not simply an instrument for pursuing external ends…rather [it] is intrinsically valuable as an experience in self-government. Collective bargaining permits workers to achieve a form of workplace democracy and to ensure the rule of law in the workplace. Workers gain a voice to influence the establishment of rules that control a major aspect of their lives.[3]

Economic theories also provide a number of models intended to explain some aspects of collective bargaining. The first is the so-called Monopoly Union Model (Dunlop, 1944), according to which the monopoly union has the power to maximise the wage rate; the firm then chooses the level of employment. This model is being abandoned by the recent literature.[citation needed] The second is the Right-to-Manage model, developed by the British school during the 1980s (Nickell). In this model, the labour union and the firm bargain over the wage rate according to a typical Nash Bargaining Maximin (written as Ώ = UβΠ1-β, where U is the utility function of the labour union, Π the profit of the firm and β represents the bargaining power of the labour unions). The third model is called efficient bargaining (McDonald and Solow, 1981), where the union and the firm bargain over both wages and employment (or, more realistically, hours of work).[citation needed]

United Kingdom The British academic Beatrice Webb reputedly coined the term "collective bargaining" in the late 19th century: the OED quotes her use of it in 1891 in Cooperative Movement. Webb aimed to characterise a process alternative to that of individual bargaining between an employer and individual employees. Other writers have emphasised the conflict-resolution aspects of collective bargaining, but in Britain the most important refinement in usage came from Allan Flanders, who defined collective bargaining as a process of rule-making leading to joint regulation in industry. Most commentators see the process of collective bargaining as necessarily containing an element of negotiation and hence as distinct from processes of consultation, which lack the element of negotiation and where employers determine outcomes unilaterally.

In the United Kingdom collective bargaining has become, and has received endorsement for many years as, the dominant and most appropriate means of regulating workers' terms and conditions of employment, in line with ILO Convention No. 84. However, the importance of collective bargaining in the United Kingdom and elsewhere in the industrialised world has declined considerably since the early 1980s. Its decline in the public sector stems in part from the growth of Review-Body arrangements provided through the Office of Manpower Economics for groups of workers, including for the majority of National Health Service staff.

Despite its significance, in the United Kingdom there remains no statutory basis for collective bargaining in the fields of learning and training, a situation that has attracted the attention of both the Trades Union Congress and members of the Royal College of Nursing. A coalition has formed which actively seeks to remedy this situation by expanding the scope of collective bargaining to encompass learning and training.

United States In the United States, the National Labor Relations Act (1935) covers most collective agreements in the private sector. This act makes it illegal for employers to discriminate against workers because of their union membership or retaliate against them for engaging in organizing campaigns or other "concerted activities" to form "company unions", or to refuse to engage in collective bargaining with the union that represents their employees.

The industrial revolution brought a swell of labor organizing in the US. The American Federation of Labor was formed in 1886, providing unprecedented bargaining powers for a variety of workers.[4] The Railway Labor Act (1926)required employers to bargain collectively with unions.

In 1930, the Supreme Court, in the case of Texas & N.O.R. Co. v. Brotherhood of Railway Clerks, upheld the act's prohibition of employer interference in the selection of bargaining representatives.[4] In 1962, President Kennedy signed an executive order giving public employee unions the right to collectively bargain with government agencies.[4]

Several notable collective bargaining agreements (CBAs) in the United States have involved major professional sports leagues, due in part to a history of poor relations and the vast sums of money involved. One half of the 1998-99 NBA season was canceled due to a lockout, as was half of the 1994-95 NHL season. A breakdown in talks caused a cancellation of the entire 2004-05 NHL season, making it the first major North American sports league to lose an entire season to labor issues. Major League Baseball experienced player strikes in 1972, 1981, and 1994. In 2006 the National Football League (NFL) faced the prospect of an eventual strike, but an agreement was reached in March. The NFL did experience season-shortening strikes in 1982 and 1987, the latter of which involved the inclusion of replacement players for three games.

Europe Many contintental European countries, like Austria, the Netherlands and Sweden, have a social market economy where collective bargaining over wages, is done on the national level between national federations of labor unions and employers' organizations. In Finland, a Comprehensive Income Policy Agreement can be reached in some years. It is collective bargaining taken to its logical maximum, setting a single percentage raise for virtually all wage-earners.

For the trade unions, several sectoral federations are in charge of the collective bargaining for their affiliates.

In some countries, such as Finland, collective agreements with enough support are universally applicable, in a particular field, regardless of union membership. Effectively, the universal collective agreement sets the minimum wages and other benefits, under which no employer may go with any employee, union member or not. Personal benefits can be given regardless. Contrast this with the U.S. practise where in non right-to-work states all employees are required to join the union and then cannot earn anything but the negotiated union wage.

In France, collective bargaing became legal with the Matignon agreements passed in 1936 by the Popular Front government.

A bargaining unit in labor relations is a group of employees with a clear and identifiable community of interests who are (under U.S. law) represented by a single labor union in collective bargaining and other dealings with management. Examples would be "non-management professors"; "law enforcement professionals"; "blue-collar workers"; "clerical and administrative employees"; etc.

[edit] Mutual Gains Approach (MGA)

Mutual Gains Approach (MGA) is an approach to collective bargaining intended to reach win-win outcomes for the negotiating parties.

Instead of the traditional adversarial (win-lose) approach (aka positional bargaining), the mutual gains approach is quite similar to Principled Negotiation (first described by Roger Fisher in his book Getting to YES), where the goal is to reach a sustainable (i.e., lasting) agreement that both parties (or all parties in a multi-party negotiation) can live with and support.

Mutual gains bargaining has been used successfully in such areas as labor-management relations and environmental negotiations.

Some principles of MGB 1. Both sides have legitimate interests to be recognized and advanced 2. Approach the issues as problems to be solved 3. Listening builds trust 4. Enlarge the pie 5. Seek sustainable alternatives

[edit] REPUBLIC ACT NO. 9298

Congress of the Philippines Twelve Congress Third Regular Session

Begun and held in Metro Manila, on Monday, the twenty-eight day of July, two thousand and three. [ REPUBLIC ACT NO. 9298 ]

AN ACT REGULATING THE PRACTICE OF ACCOUNTANCY IN THE PHILIPPINES, REPEALING FOR THE PURPOSE PRESIDENTIAL DECREE NO. 692, OTHERWISE KNOWN AS THE REVISED ACCOUNTANCY LAW, APPROPRIATING FUNDS THEREOF AND FOR OTHER PURPOSES

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:

ARTICLE I TITLE, DECLARATION OF POLICY, OBJECTIVE AND SCOPE OF PRACTICE

SECTION I. Shorts Title. ? This act shall be known as the "Philippine Accountancy" Act of 2004

SEC 2. Declaration of Policy. ? The State recognizes the importance of accountants in nation building and development. Hence, it shall develop and nurture competent, virtuous, productive and well rounded professional accountants whose standard of practice and service shall be excellent, qualitative, world class and globally competitive though inviolable, honest, effective, and credible licensure examinations and though regulatory measures, programs and activities that foster their professional growth and development.

SEC. 3. Objectives. ? This Act shall provide and govern: The standardization and regulation of accounting education; The examination of registration of certified public accountants; and The supervision, control, and regulation of the practice of accountancy in the Philippines. SEC. 4 Scope of Practice. ? The practice of accountancy shall include, but not limited to, the following:

(a) Practice of Public Accountancy ? shall constitute a person, be it his/her individual capacity, or as a staff member in an accounting or auditing firm, holding out himself/herself as one skilled in the knowledge, science and practice of accounting, and as a qualified person to render professional services as a certified public accountant; or offering or rendering, or both or more than one client on a fee basis or otherwise, services as such as the audit or verification of financial transaction and accounting records; or the preparation, signing, or certification for clients of reports of audit, balance sheet, and other financial, accounting and related schedules, exhibits, statement of reports which are to be used for publication or for credit purposes, or to be filed with a court or government agency, or to be used for any other purposes; or to design, installation, and revision of accounting system; or the preparation of income tax returns when related to accounting procedures; or when he/she represent clients before government agencies on tax and other matters relating to accounting or render professional assistance in matters relating to accounting procedures and the recording and presentation of financial facts or data.

(b) Practice in Commerce and Industry ? shall constitute in a person involved in decision making requiring professional knowledge in the science of accounting, or when such employment or position requires that the holder thereof must be a certified public accountant.

(c) Practice in Education/Academe ? shall constitute in a person in an educational institution which involve teaching of accounting, auditing, management advisory services, fiancé, business law, taxation and other technically related subject: Provided, That members of the Integrated Bar of the Philippines may be allowed to teach business law and taxation subjects.

(d) Practice in Government - shall constitute in a person who holds, or is appointed to, a position in an accounting professional group in government or in an government-owned and/or controlled corporation, including those performing proprietary functions, where decision making requires professional knowledge in the science of accounting, or where a civil service eligibility as a certified public accountant is a prerequisite.

ARTICLE II PROFESSIONAL REGULATORY BOARD OF ACCOUNTANCY

SEC. 5. The Professional Regulatory Board of Accountancy and its Composition. - The Professional Regulatory Board of Accountancy, hereinafter referred to as Board, under the supervision and administrative control of the Professional Regulation Commission, hereinafter referred to as the Commission, shall be composed of a Chairman and six (6) members to be appointed by the President of the Philippines from a list of three (3) recommendees for each position and ranked by the Commission from a list of five (5) nominees for each position submitted by the accredited national professional organization of certified public accountant. The Board shall elect a vice-chairman from among each members for a term of one (1) year. The chairman shall preside in all meetings of the Boards and in the event of a vacancy in the office of the chairman, the vice-chairman shall assume such duties and responsibilities until such time as a chairman is appointed.

SEC. 6. Qualifications of a members of the Professional Regulatory Board. ? A member of the Board shall, at the time of his/her appointment, posses the following qualifications:

Must be a natural-born citizen and a resident of the Philippines; Must be a duly registered Certified Public Accountant with at least ten (10) years of work experience in any scope of practice of accountancy; Must be a good moral character and must not have been convicted of crimes involving moral turpitude; and Must not have any pecuniary interest, directly or indirectly, in any school, college, university or institution conferring an academic degree necessary for admission to the practice of accountancy or where review classes in preparation for the licensure examination are being offered or conducted, nor shall he/she be a member of the faculty or administration thereof at a time of his/her appointment to the Board. SEC. 7. Term of Office. ? The Chairman and Members of the Board shall hold office for a term of three (3) years. Any vacancy occurring within the term of a member shall be filled up for the unexpired portion of the term only. No person who has served two (2) successive complete terms shall be eligible for reappointment until the lapse of one (1) year. Appointment to fill up an expired term is not to be considered as a complete term.

SEC. 8. Compensation and Allowances of the Board. ? The chairman and the members of the Board shall receive compensation and allowances comparable to that being received by the chairman and members of existing regulatory boards under the Commission as provided for in the General Appropriate Act.

SEC. 9. Powers and Functions of the Board. ? The Board shall exercise the following specific powers, functions and responsibilities:

To prescribed and adopt the rules and regulations necessary for carrying out the provisions of this Act; To supervise the registration, licensure and practice of accountancy in the Philippines; To administer oaths in connection with the administration of this Act; To issue, suspend, revoke, reinstate the Certificate of Registration for the practice of the accountancy profession; To adopt an official seal of the Board; To prescribe and/or adopt a Code of Ethics for the practice of accountancy; To monitor the conditions affecting the practice of accountancy and adopt such measures, including promulgation of accounting and auditing standards, rules and regulations and best practices as may be deemed proper for the enhancement and maintenance of high professional, ethical, accounting and auditing standards: That domestic accounting and auditing standards rules and regulations shall include the international accounting and auditing standards, and generally accepted best practices; To conduct an oversight into the quality of audits of financial statements though a review of the quality control measures instituted by auditors in order to ensure compliance with the accounting and auditing standards and practices, To investigate violations of this act and the rules and regulations promulgated hereunder and for the purpose, to issue summons, subpoena and subpoena ad testificandum and subpoena duces tecum to violator or witness thereof and compel their documents in connection therewith: Provided, That the Board upon approval of the Commission may, subject to such rules and regulations that may be promulgated to implement this section, delegate the fact-finding aspect of such investigations to the accredited national professional organization of certified public accountant: Provided, further, That the Board and/or the Commission may adopt their findings of fact as may be seems fit;\ The Board may, muto propio in its discretion, may such investigations as it deem necessary to determine whether any person has violated any provisions of this law, any accounting or auditing standard or rules duly promulgated by the Board as part of the rules governing the practice of accountancy; To issue a cease or desist order to any person, associations, partnership or corporation engaged in violation of any provision of this Act, any accounting or auditing standards or rules of duly promulgated by the Board as part of the rules governing the practice of accountancy in the Philippines; To punish for contempt of the Board, both direct and indirect, in accordance with the pertinent provision of and penalties prescribed by the Rules of Court; To prepare, adopt, issue or amend the syllabi of the subjects for examinations in consultation with the academe, determine and prepare questions for the licensure examination which shall strictly be within the scope of the syllabi of the subjects for examinations as well as administer, correct and release the result of the licensure examinations; To ensure the coordination with the Commission of the Higher Education (CHED) or other authorized government offices that all higher educational instruction and offering of accountancy comply with the policies, standards and requirements of the course prescribed by the CHED or other authorized government offices in the areas of curriculum, faculty, library and facilities; and To exercise such other powers as may be provided by law as well as those which may be implied from, or which are necessary or incidental to the carrying out of, the express powers granted to the Board to achieve the objectives and purposes of this Act. The policies resolution, rules and regulations issued or promulgated by the Board shall be subject to review and approval of the Commission. However, the Board?s decisions, resolutions or orders rendered in the administrative cases shall be subject to review only if on appeal.

SEC. 10. Administrative Supervisions of the Board, Custodian of its Records, Secretariat and Support Services. ? The Board shall be under the administrative supervision of the Commission. All records of the Board, including applications for examination and administrative and other investigative cases conduced by the Board shall be under the custody of the Commission. The Commission shall designate the secretary of the Board and shall provide the secretariat and other support services to implement the provisions of this Act.

SEC. 11. Grounds for Supervision or Removal of Members of the Board. ? The President of the Philippines, upon the recommendation of the Commission, after the giving the concerned member an opportunity to defend himself in proper administrative investigation to be conducted by he Commission, may suspend or remove any member of the following grounds:

Neglect of Duty or incompetence; Violation or tolerance of any violation of this Act and it?s implementation rules and regulations or the Certified Public Accountant?s Code of Ethics and the technical and professional standards of practice for certified public accountant; Final judgment of crimes involving moral turpitude; and Manipulation or rigging of the certified public accountant?s licensure examination results, disclosure of secret and confidential information in the examination questions prior to the conduct of the said examination or tampering of grades. SEC. 12. Annual Report. ? The Board shall, at the close of each calendar year, submit an annual report to the President of the Philippines though the Commission giving the detailed account of its proceedings and accomplishment during the year and making recommendations for the adoption of measures that will upgrade and improve the conditions affecting the practice of accountancy in the Philippines.

ARTICLE III EXAMINATION, REGISTRATION AND LICENSURE

SEC. 13. The Certified Public Accountant Examinations. ? All applicants for registration for the practice of accountancy shall be required to undergo a licensure examination to be given by the Board in such places and dates as the Commission may be designate subject to compliance with the requirements prescribed by the Commission in accordance with Republic Act No. 8981.

SEC. 14. Qualifications of Applicant for Examinations. ? Any person applying for examination shall establish the following requisites to the satisfaction of the Board that he/she: is a Filipino citizen; is of good moral character; is a holder of the degree of Bachelor of Science in Accountancy conferred by the school, college, academy or institute duly recognized and/or accredited by the CHED or other authorized government offices; and has not been convicted of any criminal offence involving moral turpitude. SEC. 14. Scope of Examination. ? The licensure examination for certified public accountants shall cover, but are not limited to, the following subjects:

Theory of Accounts Business Law and Taxation Management Services Auditing Theory Auditing Problems Practical Accounting Problem I Practical Accounting Problem II The Board, subject to the approval of the Commission, may revise or exclude any of the subjects and their syllabi, and add new ones as the need arises.

SEC. 16. Rating in the Licensure Examination. ? To be qualified as having passed the licensure examination for accountants, a candidate must obtain a general average of seventy five percent (75%), with no grade lower than sixty-five percent (65%) in any given subject. In the event a candidate obtains the rating of seventy-five percent (75%) and above in at least a majority of subjects as provided for in this Act, he/she shall receive a conditional credit for the subjects passed: Provided, That a candidate shall take an examination in the remaining subjects within two (2) years from preceding examination: Provided, further, That if the candidate fails to obtain at least a general average of seventy-five percent (75%) and a rating of at least sixty-five percent (65%) in each of the subjects reexamined, he/she shall be considered as failed in the entire examination.

SEC.17. Report of Rating. ? The Board shall submit to the Commission the rating obtained by each candidate within ten (10) calendar days after the examination, unless extended for just cause. Upon the release of the results of the examination, the Commission shall send by mailing the rating received by each examinee at his/her given address using the mailing envelop submitted during the examination.

SEC. 18. Failing Candidates to Take Refresher Course. ? Any candidate who fails in two (2) complete Certified Public Accountant Board Examinations shall be disqualified from taking another set of examinations unless he/she submit evidence to the satisfaction of the Board that he/she enrolled in and completed at least twenty-four (24) units of subject given in the licensure examination.

For purposes of this Act, the examination in which the candidate was conditioned together with the removal examination on the subject in which he/she failed shall be counted as one compete examination.

SEC. 19. Oath. ? All successful candidates in the examination shall required to take an oath of professional before any member of the Board or before any government official authorized of the Commission or any person authorized by law to administer oaths upon presentation of proof of his/her qualification, prior to entering upon the practice of the profession.

SEC. 20. Issuance of Certificate of Registration and Professional Identification Card. ? A certificate of registration shall be issued to examinees who pass the licensure examination subject to payment of fees prescribed by the Commission. The Certificate of Registration shall bear the signature of the chairperson of the Commission and the chairman and members of the Board, stamped with the official seal of the Commission and of the Board, indicating that the person named therein is entitled to the practice of the profession with all the privileges appurtenant thereto. The said certificate shall remain in full force and effect until withdrawn, suspended or revoked in accordance with this Act.

A Professional Identification Card bearing the registration number date of issuance, expiry date, duly signed by the chairperson of the Commission, shall likewise be issued to every registrant renewable every three (3) years

Sec. 21. Roster of Certified Public Accountant. ? A roster showing the names and place of business of all registered certified public accountants shall be prepared and updated by the Board, and copies thereof shall be made available to any party as may deemed necessary.

SEC. 22. Indication of Certificate of Registration, Identification Card and Professional Tax Receipt. ? The certified public Accountant shall be required to indicate his/her certificate of registration number and date of issuance, the duration of validity, including the Professional Tax Receipt number on the documents he/she signs, uses or issues in connection with the practice of his/her profession.

SEC. 23. Refusal to Issue Certificate of Registration and Professional Identification Card. ? The Board shall not register and issue a certificate of registration and professional identification Card to any successful examinee convicted by the court of competent jurisdiction of a criminal offence involving moral turpitude or guilty of immoral and dishonorable conduct to any person or unsound mind. In the event of refusal to issue certificate for any reason, the Board shall give the applicant a written statement setting forth the reasons for such action, which statement shall be incorporated in the record of the Board.

Sec. 24. Suspension and Revocation of Certificate of Registration and Professional Identification Card and Cancellation of Special Permit. ? The Board shall have the power, upon the notice and hearing, to suspend or revoke the practitioner?s certificate of registration and professional identification card or suspend his/her from the practice of his/her profession or cancel his/her special permit for any of the causes or ground mentioned under Section 23 of this Act or any of the provisions of this Act, and its implementing rules and regulations, the certified Public Accountant?s Code of Ethics and the technical and professional standards of practice for certified public accountants.

SEC. 25. Reinstatement, Reissuance and Replacement of Revoked or Lost Certificates. ? The Board may, after the expiration of two (2) years from the date of revocation of a certificate of registration and upon application and for reasons deemed proper and sufficient, reinstate the validity of a revoked certificate of registration and in so doing, may, in its discretion, exempt the applicant from taking another examination.

A new certificate of registration to replace lost, destroyed, or mutilated certificate/license may be issued, subject to the rules and promulgated by the Board and the Commission, upon the payment of the required fees.

ARTICLE IV PRACTICE OF ACCOUTANCY

SEC. 26. Prohibition in the Practice of Accountancy. No person shall practice accountancy in this country, or use the title "Certified Public Accountant", or use the abbreviated title "CPA" or display or use any title, sign, card, advertisement or other device to indicate such person practices or offers to practice accountancy, or is a certified public accountant, unless such person shall have received from the Board a certificate of registration/Professional license and be issued a professional identification card or a valid temporary/special permit duly issued to him/her by the Board and the Commission.

SEC. 27. Vested Rights. Certified Public Accountants Registered When This Law is Passed. ? All certified public accountants registered at the time this law takes effect shall automatically be registered under the provisions hereof, subject, however, to the provisions herein set forth as to future requirements. Certificate of Registration/Professional license held by such persons in good standing shall have the same license force and effect as though issued after the passage of this Act.

SEC. 28. Limitation of the Practice of Public Accountancy.- Single practitioners and partnerships for the practice of public accountancy shall be registered certified public accountants in the Philippines: Provided, That from the effectivity of this Act, a certificate of accreditation shall be issued to certified public accountant in public practice only upon showing, in accordance with rules and regulations promulgated by the Board and approved by the Commission, that such registrant has acquired a minimum of three (3) years meaningful experience in any of the areas of public practice including taxation: Provide, further, that this requirement shall not apply to those already granted a certificate of accreditation prior to the effectivity of this Act. The Security and Exchange Commission shall not register any corporation organized for the practice of public accountancy.

SEC. 29. Ownership of Working Papers. All working papers, schedules and memoranda made by a certified public accountant and his staff in the course of an examination, including those prepared and submitted by the client, incident to or in the course of an examination, by such certified public accountant, except reports submitted by a certified public accountant to a client shall be treated confidential and privileged and remain the property of such certified public accountant in the absence of a written agreement between the certified public accountant and the client, to the contrary, unless such documents are required to be produced though subpoena issued by any court, tribunal, or government regulatory or administrative body.

Sec. 30. Accredited Professional Organization. All registered certified public accountants whose appear in the roster of certified public accountants shall be united and integrated though their membership in a one and only registered and accredited national professional organization of registered and licensed certified public accountants, which shall be registered with the Securities and Exchange Commission as a nonprofit corporation and recognized by the Board subject to the approval by the Commission. The members of the said integrated and accredited national professional organization shall receives benefits and privileges appurtenant thereto upon payment of required fees and dues. Membership in the integrated organization shall not be a bar to membership in any other association of certified public accountants.

SEC. 31. Accreditation to Practice Public Accountancy. ? Certified public accountants, firms and partnerships of certified public accountants, engaged in the practice of public accountancy, including partners and staff members thereof, shall registered with the Commission and the Board, such registration to be renewed every three (3) years: Provided, That subject to the approval of the Commission, the Board shall promulgate rules and regulations for the implementation of registration requirements including the fees and penalties for violation thereof.

SEC. 32. Continuing Professional Education (CPE) Program. ? All certified public accountants shall abide by the requirements, rules and regulations on continuing professional education to be promulgated by the Board, subject to the approval of the Commission, in coordination with the accredited national professional organization of certified public accountants or any duly accredited educational institutional. For this purpose, a CPE Council is hereby created to implement the CPE program.

SEC. 33. Seal and Use of Seal. All license certified public accountants shall obtain and use a seal of a design prescribed by the Board bearing the registrant?s name, registration number and title. The auditors reports shall be stamped with the said seal, indicating therein his/her current Professional Tax Receipt (PTR) number, date/place of payment when filed with government authorities or when used professionally.

SEC. 34. Foreign Reciprocity. Subject or citizen of foreign countries may be allowed to practice accountancy in the Philippines in accordance with the provisions of existing laws, international treaty obligations including mutual recognition agreement entered into by the Philippines government with other countries. A person who is not a citizen of the Philippines shall not be allowed to practice accountancy in the Philippines unless he/she can prove, in the manner provided by the Rules of Court that, specific provision of law country of which he/she is a citizen, subject or national admits citizens of the Philippines to the practice of the same profession without restriction.

SEC. 35. Coverage of Temporary/Special Permits. ? Special/temporary permit may be issued by the Board subject to the approval of the Commission and payment of the fees the latter has prescribed and charged thereof to the following persons:

A foreign certified public accountant called for consultation or for specific purpose which, in the judgment of the Board, is essential for the development of the country: Provided, That his/her practice shall be limited only for the particular work that he/she is being engaged: Provided, further, That there is no Filipino certified public accountant qualified for such consultation or specific purposes; A foreign certified public accountant engaged as professor, lecturer or critic in fields essential to accountancy education in the Philippines and his/her engagement is confined to teaching only; and A foreign certified public accountant who is an internationally recognized expect or with specialization in any branch of accountancy and his/her service is essential for the advancement of accountancy in the Philippines.

ARTICLE V PENAL AND FIINAL PROVISIONS

Sec. 36. Penal Provision. Any person who shall violate any of the provisions of this Act or any of its implementing rules and regulations as promulgated by the Board subject to the approval of the Commission, shall upon conviction, be punished by a fine of not less than Fifty Thousand Pesos (50,000.00) or by imprisonment for a period not exceeding two (2) years or both.

SEC. 37. Implementing Rules and Regulations.- Within Ninety (90) days after the effectivity of this Act, the Board, subject to the approval of the Commission and in coordination with the accredited national professional organization of certified public accountants, shall adopt and promulgate such rules and regulations to carry out the provisions of this Act and which shall be effective Fifteen (15) days following their publication in the Official Gazette or in any of the major daily newspaper of general circulation.

SEC. 38. Interpretation of this Act. ? Nothing in this Act shall be construed to effect or prevent the practice or any other legally recognized profession.

SEC. 39. Enforcement of this Act. It shall be primary duty of the Commission and the Board to effectivity enforce the provisions of this Act. All duly constituted law enforcement agencies and officers of national, provincial, city or municipal government or of any political subdivision thereof, shall upon the call or request of the Commission or the Board, render assistance in enforcing the provisions of this Act and to prosecute any person violating the provisions of the same. The Secretary of Justice or his duly designated representative shall act as legal adviser to the Commission and the Board and shall render legal assistance as may be necessary in carrying out the provisions of this Act.

Any person may bring before the Commission, Board of the aforementioned officers of the law, cases of illegal practice or violations of this Act committed by any person or party.

The Board shall assist the Commission in filing the appropriate charges though the concerned prosecution office in accordance with law and Rules of Court.

SEC. 40. Funding Provision.- The chairperson of the Professional Regulation Commission shall immediately include the Commission?s programs the implementation of this Act, the funding of which shall be included in the annual General Appropriations Act.

SEC. 41. Transitory Provision. The incumbent chairman and members of the Board shall continue to serve in their respective positions under the terms for they have been appointed under Presidential Decree No. 692, without the need of new appointments.

All graduates with Bachelors Degree, Major in Accounting shall be allowed to take the CPA Licensure Examination within two (2) years from the effectivity of this Act under the rules and regulations to be promulgated by the Board subject to the approval by the Commission.

SEC. 42. Separability Clause. If any clause, provisions, paragraph or parts thereof shall be declared unconstitutional or invalid, such judgment shall not affect, invalidate or impair any other part hereof, but shall be merely confined to the clause, provisions, paragraph or part directly involved in the controversy in which such judgment has been rendered.

SEC. 43. Repealing Clause. Presidential Decree No. 692 is hereby repealed and all other laws, orders, rules and regulations or resolutions or part/s thereof inconsistent with the provisions of this Act are hereby repealed or modified accordingly.

SEC. 44. Effectivity. This Act shall take effect after Fifteen (15) days following its publication in the Official Gazette or in any major daily newspaper of general circulation. Approved,

(Sgd.) FRANKLIN M. DRILON (Sgd.) JOSE DE VENECIA JR. President of the Senate Speaker of the House of Representatives

This Act which is consolidation of Senate Bill No. 2748 and House Bill No. 6678 was finally passed by the Senate and the House of the Representatives on February 6, 2004 and February 7, 2004, respectively.

(Sgd.) OSCAR G. YABES (Sgd.) ROBERTO P. NAZARENO Secretary of the Senate Secretary General House of Representatives

Approved May 13, 2004

(Sgd.) GLORIA MACAPAGAL-ARROYO President of the Philippines Republic of the Philippines

[edit] G.R. No. 160568 September 15, 2004, CSC

PHILIPPINE JURISPRUDENCE - FULL TEXT The Lawphil Project - Arellano Law Foundation G.R. No. 160568 September 15, 2004 CIVIL SERVICE COMMISSION vs. HERMOGENES P. POBRE

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Republic of the Philippines SUPREME COURT Manila

EN BANC G.R. No. 160568 September 15, 2004, petitioner, vs. HERMOGENES P. POBRE, respondent. CIVIL SERVICE COMMISSION

D E C I S I O N CORONA, J.:

Before us is a petition for review on certiorari under Rule 45 of the 1997 Revised Rules of Civil Procedure, seeking a review and reversal of the decision1 dated March 31, 2003 of the Court of Appeals annulling and setting aside the resolutions promulgated by petitioner Civil Service Commission (CSC), specifically CSC Resolution Nos. 01-1739 dated October 29, 2001 and 02-0236 dated February 19, 2002.

Respondent Hermogenes P. Pobre is a former government official who retired from the government service three times. Respondent first retired as commissioner of the Commission on Audit (COA) on March 31, 1986. He reentered the government and retired as chairman of the Board of Accountancy on October 31, 1990. He was then appointed as associate commissioner of the Professional Regulation Commission (PRC) of which he retired eventually as chairman on February 17, 2001. The first two times he retired, respondent Pobre received his terminal leave pay amounting to P310,522.60 and P55,000, respectively.

On his third retirement, respondent Pobre claimed payment of his terminal leave based on his highest monthly salary as PRC chairman but to be reckoned from the date he first entered the government service as budget examiner in the defunct Budget Commission in 1958. He invoked Section 13 of Commonwealth Act 186:

Sec. 13. Computation of service. - The aggregate period of service which forms the basis for retirement and calculating the amount of annuity described in section eleven hereof shall be computed from the date of original employment, whether as a classified or unclassified employee in the service of an "employer," including periods of service at different times and under one or more employers; x x x.

Doubtful of the legality of the claim, successor PRC chairperson Antonieta Fortuna-Ibe sought the opinion of two constitutional commissions, petitioner CSC and the COA.

On October 29, 2001, petitioner CSC promulgated CSC Resolution No. 01-1739 stating that all respondent Pobre was entitled to were his terminal leave benefits based only on his accrued leave credits from the date of his assumption to office as PRC chairman and not his total terminal leave credits, including those earned in other government agencies3 from the beginning of his government service.

Respondent Pobre sought reconsideration of the above resolution. On February 19, 2002 the CSC issued Resolution No. 02-0236 denying his motion, with the modification, however, that the computation of his terminal leave benefits should include his service as PRC associate commissioner:

WHEREFORE, the motion for reconsideration of former PRC Chairman Hermogenes P. Pobre is hereby DENIED for want of merit. CSC Resolution No. 01-1739 dated October 29, 2001 is, however, modified such that Chairman Pobre is entitled to the payment of his terminal leave benefits computed from the date he was appointed as PRC Commissioner until the termination of his term as Chairman of the Professional Regulation Commission.4

Dissatisfied with the resolution, respondent Pobre elevated the case to the Court of Appeals via a petition for review, raising two issues:

1. whether or not the CSC had the jurisdiction to pass upon the validity of petitioner?s claim for terminal leave benefits when this claim was pending adjudication by the COA and

2. whether or not a retired employee who had served a string of government agencies in his career was entitled to have his terminal leaves computed from the time of his original appointment to the first agency in the manner retirement annuities are computed under Section 13 of Commonwealth Act 186.5

In a decision dated March 31, 2003, the Court of Appeals set aside the resolutions of petitioner CSC and declared that it was the COA, not petitioner CSC, which had jurisdiction to adjudicate respondent Pobre?s claim for terminal leave benefits:

WHEREFORE, the instant petition is PARTIALLY GRANTED. The assailed Resolution No. 02-0236 dated February 19, 2002 of the Civil Service Commission is ANNULLED and SET ASIDE for having been issued without jurisdiction. Instead, the parties are ordered to await the outcome of the query addressed by the respondent Professional Regulation Commission to the Commission on Audit and thereafter, move on the premises. No costs.

SO ORDERED.

Petitioner CSC filed a motion for reconsideration but it was denied on September 24, 2003.

Hence, the instant petition. Petitioner CSC raises a lone issue:

WHETHER THE PETITIONER CSC HAS JURISDICTION TO PASS UPON THE VALIDITY OF RESPONDENT HERMOGENES P. POBRE?S CLAIM FOR TERMINAL LEAVE, THE COMPUTATION OF WHICH IS TO BE RECKONED FROM THE DATE HE WAS FIRST EMPLOYED IN THE GOVERNMENT SERVICE IN 1958, UP TO HIS RETIREMENT AS CHAIRMAN OF THE PROFESSIONAL REGULATION COMMISSION ON FEBRUARY 17, 2001, ALTHOUGH IN THE MEANTIME HE ALREADY RECEIVED THE MONETARY VALUE OF HIS TERMINAL LEAVE WHEN HE TWICE RETIRED FROM THE GOVERNMENT SERVICE.7

Petitioner CSC anchors its authority to dispose of respondent Pobre?s claim for terminal leave benefits to its powers under the 1987 Administrative Code. Section 12 (17), Subtitle A, Title I, Book V of the Code enumerates the expanded powers and functions of petitioner CSC, among which is to "(a)dminister the retirement program for government officials and employees."

Under PD 807, otherwise known as the Civil Service Decree of the Philippines, the CSC has, among others, the following powers and functions:

(1) administer and enforce the constitutional and statutory provisions on the merit system; (2) prescribe, amend and enforce suitable rules and regulations for carrying into effect the provisions of the Decree; (3) promulgate policies, standards, and guidelines for the Civil Service and adopt plans and programs to promote economical, efficient, and effective personnel administration in the government; (4) supervise and coordinate the conduct of civil service examination; (5) approve appointments, whether original or promotional, to positions in the civil service; (6) inspect and audit periodically the personnel work program of the different departments, bureaus, offices, agencies and other instrumentalities of the government; (7) hear and decide administrative disciplinary cases instituted directly with it or brought to it on appeal; and (8) perform such other functions as properly belonging to a central personnel agency.8

On the other hand, the powers and functions of COA are delineated in Section 2 subsections (1) and (2) Article IX-D of the 1987 Constitution:

SEC. 2 (1) The Commission on Audit shall have the power, authority, and duty to examine, audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and property owned or held in trust by or pertaining to, the government, or any of its subdivisions, agencies, or instrumentalities, including government-owned and controlled corporations with original charters, and on a post-audit basis: (a) constitutional bodies, commissions and offices that have been granted fiscal autonomy under this constitution; (b) autonomous state colleges and universities; (c) other government-owned or controlled corporations and their subsidiaries and (d) such non-governmental entities receiving subsidy or equity, directly or indirectly, from or through the government which are required by law or the granting institution to submit to such audit as a condition of subsidy or equity. However, where the internal control system of the audited agencies is inadequate, the commission may adopt such measures, including temporary or special pre-audit, as are necessary and appropriate to correct the deficiencies it shall keep the central accounts of the government and, for such period as may be provided by law, preserve the vouchers and other supporting papers pertaining thereto.

(2) The Commission shall have exclusive authority, subject to the limitations in this article, to define the scope of its audit and examination, establish the technique and methods required therefor, and promulgate accounting and auditing rules and regulations, including those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures, or uses of government funds and properties.

These powers and functions may be classified thus: 1. to examine and audit all forms of government revenues; 2. to examine and audit all forms of government expenditures; 3. to settle government accounts; 4. to define the scope and techniques for its own auditing procedures; 5. to promulgate accounting and auditing rules "including those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant or conscionable expenditures" and 6. to decide administrative cases involving expenditure of public funds.9

In turn, Section 26 of PD 1445, otherwise known as the Government Auditing Code of the Philippines states:

SECTION 26. General jurisdiction. - The authority and powers of the Commission shall extend to and comprehend all matters relating to auditing procedures, systems and controls, the keeping of the general accounts of the Government, the preservation of vouchers pertaining thereto for a period of ten years, the examination and inspection of the books, records, and papers relating to those accounts; and the audit and settlement of the accounts of all persons respecting funds or property received or held by them in an accountable capacity, as well as the examination, audit, and settlement of all debts and claims of any sort due from or owing to the Government or any of its subdivisions, agencies and instrumentalities. The said jurisdiction extends to all government-owned or controlled corporations, including their subsidiaries, and other self-governing boards, commissions, or agencies of the Government, and as herein prescribed, including non-governmental entities subsidized by the government, those funded by donations through the government, those required to pay levies or government share, and those for which the government has put up a counterpart fund or those partly funded by the government. (Italics supplied)

While the determination of leave benefits is within the functions of the CSC as the central personnel agency of the government, the duty to examine accounts and expenditures relating to such benefits properly pertains to the COA. Where government expenditures or use of funds is involved, the CSC cannot claim exclusive jurisdiction simply because leave matters are involved. Thus, even as we recognize CSC?s jurisdiction in this case, its power is not exclusive as it is shared with the COA.

This Court?s ruling in Borromeo vs. Civil Service Commission10 has already settled this issue. When petitioner Borromeo retired as chairman of the CSC, he wrote a letter to the COA, coursed through the CSC chairman, requesting the inclusion of allowances received at the time of his retirement in the computation of his terminal leave benefits. The COA did not oppose Borromeo?s claim. The CSC, on the other hand and upon the advice of DBM, denied it, arguing that it had exclusive jurisdiction over petitioner?s claim because the determination of the legality of leave credit claims was within its province as the central personnel agency of the government. We ruled that:

The respondent CSC?s stance, however, that it is the body empowered to determine the legality of claims on leave matters, to the exclusion of COA, is not well-taken. While the implementation and enforcement of leave benefits are matters within the functions of the CSC as the central personnel agency of the government, the duty to examine accounts and expenditures relating to leave benefits properly pertains to the COA. Where government expenditures or use of funds is involved, the CSC cannot claim an exclusive domain simply because leave matters are also involved.

The COA, the CSC and the Commission on Elections are equally pre-eminent in their respective spheres. Neither one may claim dominance over the others. In case of conflicting rulings, it is the Judiciary which interprets the meaning of the law and ascertains which view shall prevail.11

Here, there is no conflicting ruling to speak of because the COA is yet to render its opinion on PRC?s query regarding respondent Pobre?s claim for terminal leave benefits. We therefore find it prudent to abstain from any pronouncement on this issue and to wait for COA to rule on respondent?s claim.

WHEREFORE, the decision of the Court of Appeals dated March 31, 2003 is hereby MODIFIED. Its ruling on the issue of jurisdiction is SET ASIDE but the order to await the outcome of COA?s decision respecting respondent Pobre?s claim is AFFIRMED..

SO ORDERED Davide, Jr., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Carpio Morales*, Callejo, Sr., Azcuna, Tinga, and Chico-Nazario*, JJ., concur. Footnotes

• on leave

1 Penned by Associate Justice Buenaventura J. Regalado and concurred in by Associate Justices Salvador J. Valdez, Jr., Mercedes Gozo-Dadole and Mariano C. Del Castillo of the Special Division of Five of the Former Second Division, Associate Justice Teodoro P. Regino dissenting.

2 Penned by Commissioner J. Waldemar V. Valmores, concurred in by Chairman Karina Contantino-David and Commissioner Jose Erestain, Jr. 3 Rollo, p. 14. 4 Rollo, p. 21. 5 Rollo, p. 28. 6 Rollo, p. 33. 7 Rollo, p. 5. 8 de Leon, Philippine Constitution Law, vol. ii, 1999 Ed., pp. 631-632. 9 Bernas, The Constitution of the Republic of the Philippines, A Commentary, Vol. II, 1988 First Ed., p. 369. 10 G.R. No. 96032, 31 July 1991, 199 SCRA 911. 11 Id., p. 917. The Lawphil Project - Arellano Law Foundation

[edit] COMMON MISTAKES

BE CAREFUL with these sound-alikes:

position/physician manner/matter and that/in that (because) right/light insure/ensure accept/except injury/entry instance/incidence does/thus cease/seize do/due elicit/illicit continues/continuous then/than wait/weight

he diagnoses; they diagnose; the diagnosis; the diagnoses are

 The prices on the raffle prize packages have been changed.

 Besides (other than); beside (katabi)

 For quite some time; let’s meet sometime

 Return the file to closed status

 “await” is the equivalent of “wait for”

X – Since we are awaiting for the reports…. √ - Since we are waiting for the reports… √ - Since we are awaiting the reports…

 As soon as we receive… Once we receive… Until we receive…

• Use the base form

 Applicant is in pro per.

 AMA Guides, not AME guides

 An overlap in payments; their bills have overlapped

 Medical workup

 Please ensure that (insurance facility) insured the applicant with medical coverage in the last 2 years.

 Ten cents in the dollar (spelled out / not figures)

 Claims – claims: use Claims if referring to the facility.

Example: And then return the mileage request to Claims for processing. (AIG Claims Services)

 Don’t put a comma after “although”, before it is fine

 Whenever a verb comes after helping/linking/auxilliary verbs such as “be/being” or “is/was/were” or “has/had/have”, the verb should be in its past participle form. Example: be/was advised, be/was written, be/was placed in line for payment, have received

 at the Riverside WCAB, not in the Riverside WCAB

 Use the base form of the verb after modals such as “can-could-may-might-must-shall-should-will-would”; also after “did”.

 *can come; did produce (not did produced)

 In most instances, numbers 1-11 are spelled out, beyond that the numerical form is used. If referring to measurements/units and ranges however, use the numerical form always.

 Example: 1 hour and 15 minutes; two girls; 3 ft; level 6 out of 10; 2 to 3 weeks

 (lbs), not (lbs.)

 One-half, not one half; twenty-eight, not twenty eight

 As much as possible, use Furthermore, not Further (If it begins a sentence)

 in the area of orthopedics, not orthopedic

 Psych claim, not psyche claim (psyche refers to the injury or part of body)

 …the Permanent and Stationary report, dated September 1, 2004. The comma in this case is not necessary.

 Always abbreviate “etcetera” and affix a comma at the end if it does not end the sentence. (Issues such as permanent disability, future medical treatment, etc., were discussed in the report.)

 State Disability, not state disability (State Disability benefits)

 Presiding Judge Jones, not presiding Judge Jones

 Real estate, not real state

 Psych claim, psyche injury

 Advise is used as a verb, advice as a noun. (Please advise me in writing of any further advice.) Advice has no plural form. (x Advices; √ pieces of advice).

 Compromise and Release Agreement (Agreement is also initial-capped)

 Social Security Disability (initial caps)

 US HealthWorks

 Amended Application (both initial-capped); Amended Stipulation

 Buyout (one word) of vocational rehabilitation

 “I would appreciate it if…” (don’t forget “it”)

 “If at all possible” (not “if it all possible”)

 AMA guidelines (commonly mistaken as AME guidelines); ACOEM guidelines

 Usually, therefor is used when said last at the end of sentence (common for Gurvitz et al accounts)

 Forward the letter - on to (not onto)

 Worst-case scenario (not worse)

 The noun “advice” has no plural form. Use as is.

 Fax transmittal

 Order Taking Off Calendar (OTOC)

 Activities check

 Commas are unnecessary before and after phrases such as in fact, of course, unless dictated. (x if, in fact,)

 Overworked, overpayment, overcompensating, overhead, overuse

 Cease the payment (not seize the payment)

 Common mistake: to ensure that (not “to insure”)

 Lion’s share

 For all intents and purposes, not for all intensive purposes

 …in hopes of bringing this matter to resolution (not and hopes of…)

 She is a blonde. Her hair is blond.

 EVALUATION AND RECOMMENDED FURTHER HANDLING (Not EVALUATION RECOMMENDED FOR FURTHER HANDLING)

 The nurse in-charge (not in-charged)

 Unemployment benefit/s (not an employment benefits…)

 Lawsuit (don’t separate)

 Over time, his symptoms increased; The applicant frequently works overtime.

 hearing (it’s a general term; improper noun)

 Forward to (don’t omit to)

 re-evaluation

 The applicant is claiming… (Put article “the” if first sentence in the paragraph)

 Remanded injury

 Proper use- With regard to/ In regard to/ As regards e.g. With regard to the cervical spine In regard to the memorandum order As regards the implementing powers

 Follow up- verb e.g. the patient was advised to follow up with the doctor Followup- noun/adjective e.g. The patient went to the doctor’s office for a followup. (noun) The patient went to the doctor’s office for a followup examination. (adjective as it was followed by a noun)

 Maybe v May be Maybe- perhaps (baka)

 e.g. Maybe the painter thought the walls look dull in gray. May be- is a verb phrase that means “might be” or “could be”

 e.g. One of you may be a painter, another could be a writer…

 When the lawyer dictates “a hundred dollars,” please type it up as $100.00 and NOT a $100.00 (e.g. lawyer dictates I came up with a hundred forty eight dollars, please type it up as $148.00 and not a $148.00)

 Overtime is time in excess of a set limit; working time in excess of a standard day

 e.g. He rendered overtime work during the Christmas season Over time – after a period of time

 e.g. To this end we find that words change in meaning over time.

 As soon as we receive/ until we receive/ once we receive

 For a walk-through/ I will walk it through/ I had the DOR walked through

 Stub v Stab If I stub my foot {stub is to strike (one’s foot or toe) against an object} The victim had multiple stab wounds.

 Please advise as to the status

 The question posed to the applicant (NOT the question post to the applicant)

 Joint and several liability

 Further medical treatment such as physical therapy is warranted (not wanted)

 Steering wheel NOT stirring wheel

 Ado v Adieu ado (as in much ado about nothing) adieu (which is farewell/goodbye in French)

 Nighttime, postoperatively, ongoing, courtroom, reexamination, nonsteroidal, preexisting, noncompliant, reevaluation (except in Hirschberger where it must be re-evaluation)

 Please give me a 30-day come up (no dash)

 Medical workup (intensive medical study) NOT work-up (it is an undesirable deposit of ink on a surface being printed, caused by the forcing into type-high position of quads or other spacing material)

 Out-of-pocket expenses

 In two weeks’ time/ a few cents’ worth/ a month’s time

 When the lawyer dictates “pre and postoperative diagnoses,” type it up as “preoperative and postoperative diagnoses”

 The lumbar spine MRI revealed diffuse degenerative changes. (NOT diffused)

 ….pick someone off the MPN list

 mowing the lawn

 at the time of/at that time - remember that when the lawyer dictates at the time, you will also always hear the preposition “of” - if he did not dictate “of,” use at that time

 adapt- to make fit (as for a specific or new use or situation) often by modification e.g. People who come to adapt come from all walks of life. adopt- to accept formally and out into effect e.g. adopt a constitutional amendment adept- thoroughly efficient e.g. adept in fixing cars

 sequelae (singular)- the condition following as a consequence of a disease sequela (plural)

 aide- a person who acts as an assistant; specifically : a military officer who acts as an assistant to a superior officer aid- (verb) to provide with what is useful or necessary in achieving an end; to give assistance (noun) act of helping; help given; assistance

 distract- to stir up or confuse with conflicting emotions or motives;destruct- destroy

 cost and sanctions- a financial penalty imposed by a judge on a party or attorney for violation of a court rule, for receiving a special waiver of a rule, or as a fine for contempt of court. (If a fine, the sanction may be paid to the court or to the opposing party to compensate the other side for inconvenience or added legal work due to the rule violation.)

 she was somewhat worse in November 2000 as opposed to

 estopped- barred; specifically to impede by estoppel (a legal bar to alleging or denying a fact because of one’s own previous actions or words to the contrary)

 illegible- cannot be read eligible- qualified

 we will have to see how it plays out

 gastrointestinal tract

 use hyphens in compound numbers from 21 to 99 when they are written out (note: the only time they should be written out is at the beginning of a sentence) eg. Thirty-four one hundred fifty-three

 Proper use: the patient was operated on without incident (add ON even if it was not dictated)

 Percent is a single word

ENGLISH PREPOSITION RULE There is one very simple rule about prepositions. And, unlike most rules, this rule has no exceptions. Rule A preposition is followed by a "noun". It is never followed by a verb. By "noun" we include: • noun (dog, money, love) • proper noun (name) (Bangkok, Mary) • pronoun (you, him, us) • noun group (my first job) • gerund (swimming) A preposition cannot be followed by a verb. If we want to follow a preposition by a verb, we must use the "-ing" form which is really a gerund or verb in noun form. Quick Quiz: In the following sentences, why is "to" followed by a verb? That should be impossible, according to the above rule: • I would like to go now. • She used to smoke. Here are some examples: Subject + verb preposition "noun" The food is on the table. She lives in Japan. Tara is looking for you. The letter is under your blue book. Pascal is used to English people. She isn't used to working. I ate before coming. Answer to Quick Quiz: In these sentences, "to" is not a preposition. It is part of the infinitive ("to go", "to smoke"). Prepositions of Place: at, in, on In general, we use: • at for a POINT • in for an ENCLOSED SPACE • on for a SURFACE at in on POINT ENCLOSED SPACE SURFACE at the corner in the garden on the wall at the bus stop in London on the ceiling at the door in France on the door at the top of the page in a box on the cover at the end of the road in my pocket on the floor at the entrance in my wallet on the carpet at the crossroads in a building on the menu at the entrance in a car on a page Look at these examples: • Jane is waiting for you at the bus stop. • The shop is at the end of the street. • My plane stopped at Dubai and Hanoi and arrived in Bangkok two hours late. • When will you arrive at the office? • Do you work in an office? • I have a meeting in New York. • Do you live in Japan? • Jupiter is in the Solar System. • The author's name is on the cover of the book. • There are no prices on this menu. • You are standing on my foot. • There was a "no smoking" sign on the wall. • I live on the 7th floor at 21 Oxford Street in London. Notice the use of the prepositions of place at, in and on in these standard expressions: at in on at home in a car on a bus at work in a taxi on a train at school in a helicopter on a plane at university in a boat on a ship at college in a lift (elevator) on a bicycle, on a motorbike at the top in the newspaper on a horse, on an elephant at the bottom in the sky on the radio, on television at the side in a row on the left, on the right at reception in Oxford Street on the way Prepositions of Time: at, in, on We use: • at for a PRECISE TIME • in for MONTHS, YEARS, CENTURIES and LONG PERIODS • on for DAYS and DATES at in on PRECISE TIME MONTHS, YEARS, CENTURIES and LONG PERIODS DAYS and DATES at 3 o'clock in May on Sunday at 10.30am in summer on Tuesdays at noon in the summer on 6 March at dinnertime in 1990 on 25 Dec. 2010 at bedtime in the 1990s on Christmas Day at sunrise in the next century on Independence Day at sunset in the Ice Age on my birthday at the moment in the past/future on New Year's Eve Look at these examples: • I have a meeting at 9am. • The shop closes at midnight. • Jane went home at lunchtime. • In England, it often snows in December. • Do you think we will go to Jupiter in the future? • There should be a lot of progress in the next century. • Do you work on Mondays? • Her birthday is on 20 November. • Where will you be on New Year's Day? Notice the use of the preposition of time at in the following standard expressions: Expression Example at night The stars shine at night. at the weekend I don't usually work at the weekend. at Christmas/Easter I stay with my family at Christmas. at the same time We finished the test at the same time. at present He's not home at present. Try later. Notice the use of the prepositions of time in and on in these common expressions: in on in the morning on Tuesday morning in the mornings on Saturday mornings in the afternoon(s) on Sunday afternoons in the evening(s) on Monday evening When we say last, next, every, this we do not also use at, in, on. • I went to London last June. (not in last June) • He's coming back next Tuesday. (not on next Tuesday) • I go home every Easter. (not at every Easter) • We'll call you this evening. (not in this evening) DETERMINERS Determiners are words like the, an, my, some. They are grammatically similar. They all come at the beginning of noun phrases, and usually we cannot use more than one determiner in the same noun phrase. Articles: • a, an, the Possessives: • my, your, his, her, our, their Other determiners: • each, every • either, neither • any, some, no • much, many; more, most • little, less, least • few, fewer, fewest • what, whatever; which, whichever • both, half, all • several • enough Determiners: A, An or The? When do we say "the dog" and when do we say "a dog"? (On this page we talk only about singular, countable nouns.) The and a/an are called "articles". We divide them into "definite" and "indefinite" like this: Articles Definite Indefinite the a, an We use "definite" to mean sure, certain. "Definite" is particular. We use "indefinite" to mean not sure, not certain. "Indefinite" is general. When we are talking about one thing in particular, we use the. When we are talking about one thing in general, we use a or an. Think of the sky at night. In the sky we see 1 moon and millions of stars. So normally we would say: • I saw the moon last night. • I saw a star last night. Look at these examples: the a, an • The capital of France is Paris. • I have found the book that I lost. • Have you cleaned the car? • There are six eggs in the fridge. • Please switch off the TV when you finish. • I was born in a town. • John had an omelette for lunch. • James Bond ordered a drink. • We want to buy an umbrella. • Have you got a pen? Of course, often we can use the or a/an for the same word. It depends on the situation, not the word. Look at these examples: • We want to buy an umbrella. (Any umbrella, not a particular umbrella.) • Where is the umbrella? (We already have an umbrella. We are looking for our umbrella, a particular umbrella.) Determiners: Each, Every Each and every have similar but not always identical meanings. Each = every one separately Every = each, all Sometimes, each and every have the same meaning: • Prices go up each year. • Prices go up every year. But often they are not exactly the same. Each expresses the idea of 'one by one'. It emphasizes individuality. Every is half-way between each and all. It sees things or people as singular, but in a group or in general. Consider the following: • Every artist is sensitive. • Each artist sees things differently. • Every soldier saluted as the President arrived. • The President gave each soldier a medal. Each can be used in front of the verb: • The soldiers each received a medal. Each can be followed by 'of': • The President spoke to each of the soldiers. • He gave a medal to each of them. Every cannot be used for 2 things. For 2 things, each can be used: • He was carrying a suitcase in each hand. Every is used to say how often something happens: • There is a plane to Bangkok every day. • The bus leaves every hour. Verbs with each and every are always conjugated in the singular. Determiners: Some, Any Some = a little, a few or a small number or amount Any = one, some or all Usually, we use some in positive (+) sentences and any in negative (-) and question (?) sentences.

   some    any     example situation

+ I have some money. I have $10. - I don't have any money. I don't have $1 and I don't have $10 and I don't have $1,000,000. I have $0. ? Do you have any money? Do you have $1 or $10 or $1,000,000? In general, we use something/anything and somebody/anybody in the same way as some/any. Look at these examples: • He needs some stamps. • I must go. I have some homework to do. • I'm thirsty. I want something to drink. • I can see somebody coming. • He doesn't need any stamps. • I can stay. I don't have any homework to do. • I'm not thirsty. I don't want anything to drink. • I can't see anybody coming. • Does he need any stamps? • Do you have any homework to do? • Do you want anything to drink? • Can you see anybody coming? We use any in a positive sentence when the real sense is negative. • I refused to give them any money. (I did not give them any money) • She finished the test without any difficulty. (she did not have any difficulty) Sometimes we use some in a question, when we expect a positive YES answer. (We could say that it is not a real question, because we think we know the answer already.) • Would you like some more tea? • Could I have some sugar, please? GRAMMAR GUIDES

The Present Tense. Add -s or -es to the present---the first principal part---to form the third-person singular form of the present tense: he wishes, she acts. Use the unchanged present form for all other singular and plural forms of present tense: I wish, you act, we wish, they act.

Use the present tense to express any of these actions: (1) a present action, (2) a regularly occurring action, or (3) a constant or generally true action.

Present Action The apple tastes sour. Regular Action The ticket office opens at nine each morning. Constant Action Water freezes at zero degrees Celsius

Use the present historical tense to express a past action as if it were happening now. This tense is also used frequently for writing about a piece of literature.

General Pershing places a wreath on the tomb and says, “Lafayette, we are here.” Juliet steps onto her balcony and proclaims her love to the night.

The Past Tense. To form the past tense of a regular verb, add -d or -ed to the present: she joked, they laughed, they pushed, we pulled. The past tense of an irregular verb is the third principal part of the verb: it sank, I swam.

To express an action that began and ended in the past, use the past tense.

The government hanged John Brown on charges of treason on December 2, 1859.

The Future Tense. To form the future tense, place the auxiliary verb shall or will before the present form of a verb: I shall investigate, you will investigate, they will investigate.

Use the future tense to express an action that will take place some time after this moment.

They will make a report on the incident to us We shall tell the truth about what happened.

You can also express a future action by using the present tense of a verb with an adverb or a group of words that tell of a future time.

From now on, people may think twice before smoking. (The phrase From now on tells of a future time.)

Using the Perfect Tense. To form the present perfect tense, place the auxiliary verb has or have before the past participle of a verb: she has arrived, we have seen her. Use the present perfect tense to express (1) an action completed at an indefinite time in the past or (2) an action that started in the past and continues at the present time.

The commercial jet has made the world a smaller place. (action completed at an indefinite time) These swift planes have carried passengers and cargo since the 1950’s. (action continuing into present)

The Past Perfect Tense. To form the past perfect tense, place the auxiliary verb had before the past participle of a verb: I had shouted, she had heard. Use the past perfect tense to express a past action that took place before another past action.

Thomas Jefferson had supported the French Revolution until he heard of its excesses.

The Future Perfect Tense. To form the future perfect tense, place the auxiliary verbs shall have or will have before the past participle of a verb. Use the future perfect tense to express a future action that will take place before another future action.

The play will have run for six years when it closes next week.

Problems in Using Tenses

Study the following guidelines to avoid special problems related to the use of tenses.

Special Uses of the Past Perfect. In some sentences, two verbs express actions that happened at different times: one action happened before the other. To express the action that happened first, use the past perfect tense. Use the simple past tense to express the other action.

Incorrect In the 1970s, many pilots reported they sighted UFO’s. Correct In the 1970s, many pilots reported they had sighted UFO’s.

The incorrect sentence below tells about two past actions. The past action in the if clause occurred before the past action in the other clause. This error is corrected by omitting would have and using the past perfect of the verb in the if clause.

Incorrect North America might be very different today if the colonies would have lost the American Revolution. Correct North America night be very different today if the colonies had lost the American Revolution.

Using Having with a Past Participle. To show that one action was completed before another, use having with the past participle in the participial phrase.

Incorrect Losing the Battle of Yorktown, General Cornwallis surrendered the British armies to General Washington. (Cornwallis had lost before he surrendered.) Correct Having lost the Battle of Yorktown, General Cornwallis surrendered the British armies to General Washington.

Using Present and Perfect Infinitives. The present infinitive (to sign) and the perfect infinitive (to have signed) are used to express actions that take place at different times.

Use the present infinitive form to express an action that happens after another action.

Incorrect The leaders of the two countries had hoped to have signed the treaty before the end of the year. (The perfect infinitive is incorrect. The action it is intended to express happened after the action expressed by had hoped.) Correct The leaders of the two countries had hoped to sign the treaty before the end of the year.

Use the perfect infinitive to express an action that happens before another action.

Romeo felt ashamed to have slain Juliet’s cousin. (The perfect infinitive is used correctly to express an action that happened before the action the verb felt expresses.)

Principal Parts Present Present Participle Past Past Participle pull (is) pulling pulled (have) pulled Simple Tenses Singular Plural Present Tense First Person I pull we pull Second Person you pull you pull Third Person he, she, it pulls they pull Past Tense First Person I pulled we pulled Second Person you pulled you pulled Third Person he, she, it pulled they pulled Future Tense (will or shall + the present form) First Person I will (shall) pull we will (shall) pull Second Person you will pull you will pull Third Person he, she, it will pull they will pull Perfect Tenses Present Perfect Tense (has or have + the past participle) First Person I have pulled we have pulled Second Person you have pulled you have pulled Third Person he, she, it has pulled they have pulled Past Perfect Tense (had + the past participle) First Person I had pulled we had pulled Second Person you had pulled you had pulled Third Person he, she, it had pulled they had pulled Future Perfect Tense (will have or shall have + the past participle) First Person I will (shall) have pulled we will (shall) have pulled Second Person you will have pulled you will have pulled Third Person he, she, it will have pulled they will have pulled

[edit] Thesis Statement

A thesis statement is a focused selection of text that can be anywhere from just one sentence to a few pages in size that clearly delineates the argument that will be taken in a proposed paper to be written. A thesis statement should be prepared in advance for all types of scientific writing, in order to give the paper a good structure.

It is a useful instrument for investigating the scope of the proposed paper in order to determine if it is too broad or too narrow. It is not intended to remain fixed, but can be adapted throughout the process of writing the paper as new arguments are discovered or old arguments are deemed to be irrelevant.

The thesis statement is often used in an adapted form at the beginning of the finished paper. It is considered to be better writing to not introduce the thesis statement with the words "The purpose of this paper is to..." but to reword it to make clear what will be following, and thus it is often found after a brief motivation for writing the paper.

In general, a thesis statement is a selection that explains what your document is going to be about, it also contains brief reasons why you chose this subject. For example, if you were to be doing a paper about bringing someone from the past to the present, you would most likely look like this.... "The person I chose, if I could bring someone back from the past to the present would be...". You would also add the reasons which might look like this.... "The reason I chose (persons name) was because...." You would add multiple reasons to your thesis statement. This however is not a thesis statement for upscale papers.

[edit] HEIZEL

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March 3, 2003 to Present

 ●  Legal Editor – Transcription Department

eDATA Services, Inc. Philippines 17/F Tower 2, RCBC Plaza, 6819 Ayala Avenue, Makati City 1200

- Transcribes and edits recorded or written materials including pleadings, letters, deposition summaries and other related legal and medical documents of the Workers’ Compensation cases in California. - Verifies the accuracy of the transcribed reports by the legal transcriptionist basing from the live dictations and/or court/medical notes. - Performs proofreading and English editing (rewrites sentences, eliminated redundancy, restructure paragraphs, and condense materials whenever necessary to ensure clear and effective presentation of the information to the intended audience (lawyers, medical teams/doctors) - Performs duties of a Quality Evaluator and accomplishes Quality evaluation forms for monitoring transcriptionist’s performance. Provides assistance to other editors and transcriptionists whenever necessary with feedback from QE form or verbal cuing. - Operates and performs routine maintenance or adjustments of the word-processing equipment, programs, and/or systems. - Conducts research, identifies, develops, and uses a variety of technical and complex source documents. - Delegates/assigns job to the staff transcriptionists - Maintains records that reflect workflow and completions which shall serve as reference for statistical summaries of production. - Prepares Standards and Guidelines of Primary Accounts and updates and modifies templates and guidelines whenever necessary. - Performs other related duties as may be required like handling trainings of trainee transcriptionists and trainee editors.

May 2000 – March 2003

 ●  Customer Service Representative (Inbound and Outbound Accounts)

Qinteraction Philippines, Inc. (Formerly Q.Com) 4/F Yupangco Bldg., 339 Sen. Gil Puyat Avenue, Makati City 1200

- Assigned under Telecommunication Group (handles prepaid account on billing queries and requests for service activation; handles sales account (handy phone, line subscription, prepaid line); and tackles complaints on billing and repair accounts. - Assigned also under Food Group takes orders on-line for delivery to customers of the food company clients. - Prepares statistical records to monitor workflow and production summaries

April 1998 – May 1998

 ●  SPES – City General Services

Iriga City Government

- Local Government sponsored summer program to assist students. - Junior clerk responsible for typing and filing of documents and legal papers. - Assigned in inventory department; filed and encoded documents like cash disbursements. - In charge of interviewing respondents to gain proper information or surveys about the services of the local government of Iriga City.

Tertiary Bachelor of Arts Major in Political Science University of Saint Anthony Iriga City March 1994 – March 1998

• Awarded Academic Distinction

Secondary University of Saint Anthony Iriga City March 1990 – March 1994

Advanced Units: Master in Public Administration Polytechnic University of the Philippines Sta. Mesa, Manila 2004 and Continuing

33 Units – Bachelor of Laws University of Nueva Caceres Naga City 1998-1999

Completed 18-Units Required - Methods of Teaching University of Saint Anthony

Certificate Tutorial AMA Computer Learning Center, Iriga City November – December 1997

• Computer literate • Proficient in English (oral and written) • Interpersonal and Intrapersonal

Accountability of Public Officials (Graft and Corruption) Polytechnic University of the Philippines M.H. Del Pilar, Sta. Mesa, Metro Manila March 10, 2007

Quality Circle Seminar (Customer Service Training/Quality Control) Qinteraction Philippines, Inc. Makati City 1200 October 6 – 7, 2001

Bar Operations Commissions Seminar Workshop on Plain English and Case Digest University of Nueva Caceres (College of Law) Naga City 1998

Camarines Sur Political Science Encounter Ateneo de Naga Naga City August 28, 1997

34TH National Rizal Youth Leadership Institute and 1st International Rizal Youth Assembly Carlos P. Romulo Hall, Teachers Camp, Baguio City December 15-19, 1996 Seminar Workshop in Parliamentary Procedure University of Saint Anthony July 26, 1996

Regional Conference on the Magna Carta of Students (Region V) Naga City Multi-Purpose Hall Naga City September 20, 1995

Lecture-Demonstration on Cardio Pulmonary Resuscitation

   Basic Life Support Workshop

University of Saint Anthony January 21, 1995

Leadership and Management Training University of Northeastern Philippines Iriga, City December 13, 1994

Leadership and Management Seminar University of Saint Anthony November 20, 1994

ELIGIBILITY  Career Service Professional Examination Rating: 85.174% Iriga Central School June 29, 1997

 Career Service Sub-Professional Examination Rating: 87.32% Iriga Central School May 24, 1998

SCHOLARSHIP Iriga City Government Scholarship City of Iriga 1994 – 1995

University Resident Scholarship University of Saint Anthony 1997 - 1998

ORGANIZATION/MEMBERSHIP: Political Science Society – PSS Iriga Chapter Master in Public Administration Society (MPAS)

PERSONAL DATA Home Add: Zone 1, Victoria Street, San Jose, Iriga City 4431 Birthdate: April 6, 1977 Gender: Female Civil Status: Single Religion: Roman Catholic

REFERENCES Available Upon Request

[edit] THE LABOR CODE OF THE PHILIPPINES

THE LABOR CODE OF THE PHILIPPINES PRESIDENTIAL DECREE NO. 442, AS AMENDED.

A DECREE INSTITUTING A LABOR CODE THEREBY REVISING AND CONSOLIDATING LABOR AND SOCIAL LAWS TO AFFORD PROTECTION TO LABOR, PROMOTE EMPLOYMENT AND HUMAN RESOURCES DEVELOPMENT AND INSURE INDUSTRIAL PEACE BASED ON SOCIAL JUSTICE.

PRELIMINARY TITLE Chapter I GENERAL PROVISIONS ARTICLE 1. Name of Decree. - This Decree shall be known as the "Labor Code of the Philippines". ART. 2. Date of effectivity. - This Code shall take effect six (6) months after its promulgation.

ART. 3. Declaration of basic policy. - The State shall afford protection to labor, promote full employment, ensure equal work opportunities regardless of sex, race or creed and regulate the relations between workers and employers. The State shall assure the rights of workers to self-organization, collective bargaining, security of tenure, and just and humane conditions of work. ART. 4. Construction in favor of labor. - All doubts in the implementation and interpretation of the provisions of this Code, including its implementing rules and regulations, shall be resolved in favor of labor.

ART. 5. Rules and regulations. - The Department of Labor and other government agencies charged with the administration and enforcement of this Code or any of its parts shall promulgate the necessary implementing rules and regulations. Such rules and regulations shall become effective fifteen (15) days after announcement of their adoption in newspapers of general circulation.

ART. 6. Applicability. - All rights and benefits granted to workers under this Code shall, except as may otherwise be provided herein, apply alike to all workers, whether agricultural or non-agricultural. (As amended by Presidential Decree No. 570-A, November 1, 1974).

Chapter II EMANCIPATION OF TENANTS ART. 8. Transfer of lands to tenant-workers. - Being a vital part of the labor force, tenant-farmers on private agricultural lands primarily devoted to rice and corn under a system of share crop or lease tenancy whether classified as landed estate or not shall be deemed owner of a portion constituting a family-size farm of five (5) hectares, if not irrigated and three (3) hectares, if irrigated. In all cases, the land owner may retain a n area of not more than seven (7) hectares if such landowner is cultivating such area or will now cultivate it.

ART. 9. Determination of land value. - For the purpose of determining the cost of the land to be transferred to the tenant-farmer, the value of the land shall be equivalent to two and one-half (2-1/2) times the average harvest of three (3) normal crop years immediately preceding the promulgation of Presidential Decree No. 27 on October 21, 1972.

The total cost of the land, including interest at the rate of six percent (6%) per annum, shall be paid by the tenant in fifteen (15) years of fifteen (15) equal annual amortizations.

In case of default, the amortization due shall be paid by the farmers’ cooperative in which the defaulting tenant-farmer is a member, with the cooperative having a right of recourse against him.

The government shall guarantee such amortizations with shares of stock in government-owned and government-controlled corporations.

ART. 10. Conditions of ownership. - No title to the land acquired by the tenant-farmer under Presidential Decree No. 27 shall be actually issued to him unless and until he has become a full-fledged member of a duly recognized farmers’ cooperative.

Title to the land acquired pursuant to Presidential Decree No. 27 or the Land Reform Program of the Government shall not be transferable except by hereditary succession or to the Government in accordance with the provisions of Presidential Decree No. 27, the Code of Agrarian Reforms and other existing laws and regulations.

ART. 11. Implementing agency. - The Department of Agrarian Reform shall promulgate the necessary rules and regulations to implement the provisions of this Chapter.

[edit] LABOR CODE I - PRE-EMPLOYMENT

BOOK ONE PRE-EMPLOYMENT

ART. 12. Statement of objectives. - It is the policy of the State: a) To promote and maintain a state of full employment through improved manpower training, allocation and utilization;

b) To protect every citizen desiring to work locally or overseas by securing for him the best possible terms and conditions of employment;

c) To facilitate a free choice of available employment by persons seeking work in conformity with the national interest;

d) To facilitate and regulate the movement of workers in conformity with the national interest;

e) To regulate the employment of aliens, including the establishment of a registration and/or work permit system;

f) To strengthen the network of public employment offices and rationalize the participation of the private sector in the recruitment and placement of workers, locally and overseas, to serve national development objectives;

g) To insure careful selection of Filipino workers for overseas employment in order to protect the good name of the Philippines abroad.

Title I RECRUITMENT AND PLACEMENT OF WORKERS

Chapter I GENERAL PROVISIONS ART. 13. Definitions. - (a) "Worker" means any member of the labor force, whether employed or unemployed. (b) "Recruitment and placement" refers to any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not: Provided, That any person or entity which, in any manner, offers or promises for a fee, employment to two or more persons shall be deemed engaged in recruitment and placement.

(c) "Private fee-charging employment agency" means any person or entity engaged in recruitment and placement of workers for a fee which is charged, directly or indirectly, from the workers or employers or both.

(d) "License" means a document issued by the Department of Labor authorizing a person or entity to operate a private employment agency.

(e) "Private recruitment entity" means any person or association engaged in the recruitment and placement of workers, locally or overseas, without charging, directly or indirectly, any fee from the workers or employers.

(f) "Authority" means a document issued by the Department of Labor authorizing a person or association to engage in recruitment and placement activities as a private recruitment entity.

(g) "Seaman" means any person employed in a vessel engaged in maritime navigation.

(h) "Overseas employment" means employment of a worker outside the Philippines.

(i) "Emigrant" means any person, worker or otherwise, who emigrates to a foreign country by virtue of an immigrant visa or resident permit or its equivalent in the country of destination.

ART. 14. Employment promotion. - The Secretary of Labor shall have the power and authority:

(a) To organize and establish new employment offices in addition to the existing employment offices under the Department of Labor as the need arises;

(b) To organize and establish a nationwide job clearance and information system to inform applicants registering with a particular employment office of job opportunities in other parts of the country as well as job opportunities abroad;

(c) To develop and organize a program that will facilitate occupational, industrial and geographical mobility of labor and provide assistance in the relocation of workers from one area to another; and

(d) To require any person, establishment, organization or institution to submit such employment information as may be prescribed by the Secretary of Labor.

ART. 15. Bureau of Employment Services. - (a) The Bureau of Employment Services shall be primarily responsible for developing and monitoring a comprehensive employment program. It shall have the power and duty:

1. To formulate and develop plans and programs to implement the employment promotion objectives of this Title; 2. To establish and maintain a registration and/or licensing system to regulate private sector participation in the recruitment and placement of workers, locally and overseas, and to secure the best possible terms and conditions of employment for Filipino contract workers and compliance therewith under such rules and regulations as may be issued by the Minister of Labor;

3. To formulate and develop employment programs designed to benefit disadvantaged groups and communities;

4. To establish and maintain a registration and/or work permit system to regulate the employment of aliens;

5. To develop a labor market information system in aid of proper manpower and development planning;

6. To develop a responsive vocational guidance and testing system in aid of proper human resources allocation; and

7. To maintain a central registry of skills, except seamen.

(b) The regional offices of the Ministry of Labor shall have the original and exclusive jurisdiction over all matters or cases involving employer-employee relations including money claims, arising out of or by virtue of any law or contracts involving Filipino workers for overseas employment except seamen: Provided, That the Bureau of Employment Services may, in the case of the National Capital Region, exercise such power, whenever the Minister of Labor deems it appropriate. The decisions of the regional offices of the Bureau of Employment Services, if so authorized by the Minister of Labor as provided in this Article, shall be appealable to the National Labor Relations Commission upon the same grounds provided in Article 223 hereof. The decisions of the National Labor Relations Commission shall be final and inappealable. (Superseded by Exec. Order 797, May 1, 1982). (c) The Minister of Labor shall have the power to impose and collect fees based on rates recommended by the Bureau of Employment Services. Such fees shall be deposited in the National Treasury as a special account of the General Fund, for the promotion of the objectives of the Bureau of Employment Services, subject to the provisions of Section 40 of Presidential Decree No. 1177.

ART. 16. Private recruitment. - Except as provided in Chapter II of this Title, no person or entity other than the public employment offices, shall engage in the recruitment and placement of workers.

ART. 17. Overseas Employment Development Board. - An Overseas Employment Development Board is hereby created to undertake, in cooperation with relevant entities and agencies, a systematic program for overseas employment of Filipino workers in excess of domestic needs and to protect their rights to fair and equitable employment practices. It shall have the power and duty:

1. To promote the overseas employment of Filipino workers through a comprehensive market promotion and development program;

2. To secure the best possible terms and conditions of employment of Filipino contract workers on a government-to-government basis and to ensure compliance therewith;

3. To recruit and place workers for overseas employment on a government-to-government arrangement and in such other sectors as policy may dictate; and

4. To act as secretariat for the Board of Trustees of the Welfare and Training Fund for Overseas Workers.

ART. 18. Ban on direct-hiring. - No employer may hire a Filipino worker for overseas employment except through the Boards and entities authorized by the Secretary of Labor. Direct-hiring by members of the diplomatic corps, international organizations and such other employers as may be allowed by the Secretary of Labor is exempted from this provision. 

ART. 19. Office of Emigrant Affairs. - (a) Pursuant to the national policy to maintain close ties with Filipino migrant communities and promote their welfare as well as establish a data bank in aid of national manpower policy formulation, an Office of Emigrant Affairs is hereby created in the Department of Labor. The Office shall be a unit at the Office of the Secretary and shall initially be manned and operated by such personnel and through such funding as are available within the Department and its attached agencies. Thereafter, its appropriation shall be made part of the regular General Appropriations Decree. 

(b) The office shall, among others, promote the well-being of emigrants and maintain their close link to the homeland by:

1) serving as a liaison with migrant communities; 2) provision of welfare and cultural services;

3) promote and facilitate re-integration of migrants into the national mainstream; 4) promote economic; political and cultural ties with the communities; and

5) generally to undertake such activities as may be appropriate to enhance such cooperative links.

ART. 20. National Seamen Board. - (a) A National Seamen Board is hereby created which shall develop and maintain a comprehensive program for Filipino seamen employed overseas. It shall have the power and duty: 1. To provide free placement services for seamen; 2. To regulate and supervise the activities of agents or representatives of shipping companies in the hiring of seamen for overseas employment and secure the best possible terms of employment for contract seamen workers and secure compliance therewith;

3. To maintain a complete registry of all Filipino seamen.

(b) The Board shall have original and exclusive jurisdiction over all matters or cases including money claims, involving employer-employee relations, arising out of or by virtue of any law or contracts involving Filipino seamen for overseas employment. The decisions of the Board shall be appealable to the National Labor Relations Commission upon the same grounds provided in Article 223 hereof. The decisions of the National Labor Relations Commission shall be final and inappealable. ART. 21. Foreign service role and participation. - To provide ample protection to Filipino workers abroad, the labor attaches, the labor reporting officers duly designated by the Secretary of Labor and the Philippine diplomatic or consular officials concerned shall, even without prior instruction or advice from the home office, exercise the power and duty:

(a) To provide all Filipino workers within their jurisdiction assistance on all matters arising out of employment;

(b) To insure that Filipino workers are not exploited or discriminated against;

(c) To verify and certify as requisite to authentication that the terms and conditions of employment in contracts involving Filipino workers are in accordance with the Labor Code and rules and regulations of the Overseas Employment Development Board and National Seamen Board;

(d) To make continuing studies or researches and recommendations on the various aspects of the employment market within their jurisdiction;

(e) To gather and analyze information on the employment situation and its probable trends, and to make such information available; and

(f) To perform such other duties as may be required of them from time to time.

ART. 22. Mandatory remittance of foreign exchange earnings. - It shall be mandatory for all Filipino workers abroad to remit a portion of their foreign exchange earnings to their families, dependents, and/or beneficiaries in the country in accordance with rules and regulations prescribed by the Secretary of Labor.

ART. 23. Composition of the Boards. - (a) The OEDB shall be composed of the Secretary of Labor and Employment as Chairman, the Undersecretary of Labor as Vice-Chairman, and a representative each of the Department of Foreign Affairs, the Department of National Defense, the Central Bank, the Department of Education, Culture and Sports, the National Manpower and Youth Council, the Bureau of Employment Services, a workers’ organization and an employers’ organization and the Executive Director of the OEDB as members.

(b) The National Seamen Board shall be composed of the Secretary of Labor and Employment as Chairman, the Undersecretary of Labor as Vice-Chairman, the Commandant of the Philippine Coast Guard, and a representative each of the Department of Foreign Affairs, the Department of Education, Culture and Sports, the Central Bank, the Maritime Industry Authority, the Bureau of Employment Services, a national shipping association and the Executive Director of the NSB as members.

The members of the Boards shall receive allowances to be determined by the Board which shall not be more than P2,000.00 per month.

(c) The Boards shall be attached to the Department of Labor for policy and program coordination. They shall each be assisted by a Secretariat headed by an Executive Director who shall be a Filipino citizen with sufficient experience in manpower administration, including overseas employment activities. The Executive Director shall be appointed by the President of the Philippines upon the recommendation of the Secretary of Labor and shall receive an annual salary as fixed by law. The Secretary of Labor shall appoint the other members of the Secretariat.

(d) The Auditor General shall appoint his representative to the Boards to audit their respective accounts in accordance with auditing laws and pertinent rules and regulations.

ART. 24. Boards to issue rules and collect fees. - The Boards shall issue appropriate rules and regulations to carry out their functions. They shall have the power to impose and collect fees from employers concerned, which shall be deposited in the respective accounts of said Boards and be used by them exclusively to promote their objectives.

Chapter II REGULATION OF RECRUITMENT AND PLACEMENT ACTIVITIES

ART. 25. Private sector participation in the recruitment and placement of workers. - Pursuant to national development objectives and in order to harness and maximize the use of private sector resources and initiative in the development and implementation of a comprehensive employment program, the private employment sector shall participate in the recruitment and placement of workers, locally and overseas, under such guidelines, rules and regulations as may be issued by the Secretary of Labor. ART. 26. Travel agencies prohibited to recruit. - Travel agencies and sales agencies of airline companies are prohibited from engaging in the business of recruitment and placement of workers for overseas employment whether for profit or not.

ART. 27. Citizenship requirement. - Only Filipino citizens or corporations, partnerships or entities at least seventy-five percent (75%) of the authorized and voting capital stock of which is owned and controlled by Filipino citizens shall be permitted to participate in the recruitment and placement of workers, locally or overseas. 

ART. 28. Capitalization. - All applicants for authority to hire or renewal of license to recruit are required to have such substantial capitalization as determined by the Secretary of Labor.

ART. 29. Non-transferability of license or authority. - No license or authority shall be used directly or indirectly by any person other than the one in whose favor it was issued or at any place other than that stated in the license or authority be transferred, conveyed or assigned to any other person or entity. Any transfer of business address, appointment or designation of any agent or representative including the establishment of additional offices anywhere shall be subject to the prior approval of the Department of Labor.

ART. 30. Registration fees. - The Secretary of Labor shall promulgate a schedule of fees for the registration of all applicants for license or authority. 

ART. 31. Bonds. - All applicants for license or authority shall post such cash and surety bonds as determined by the Secretary of Labor to guarantee compliance with prescribed recruitment procedures, rules and regulations, and terms and conditions of employment as may be appropriate.

ART. 32. Fees to be paid by workers. - Any person applying with a private fee-charging employment agency for employment assistance shall not be charged any fee until he has obtained employment through its efforts or has actually commenced employment. Such fee shall be always covered with the appropriate receipt clearly showing the amount paid. The Secretary of Labor shall promulgate a schedule of allowable fees. 

ART. 33. Reports on employment status. - Whenever the public interest requires, the Secretary of Labor may direct all persons or entities within the coverage of this Title to submit a report on the status of employment, including job vacancies, details of job requisitions, separation from jobs, wages, other terms and conditions and other employment data. 

ART. 34. Prohibited practices. - It shall be unlawful for any individual, entity, licensee, or holder of authority: 

(a) To charge or accept, directly or indirectly, any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor, or to make a worker pay any amount greater than that actually received by him as a loan or advance;

(b) To furnish or publish any false notice or information or document in relation to recruitment or employment;

(c) To give any false notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authority under this Code.

(d) To induce or attempt to induce a worker already employed to quit his employment in order to offer him to another unless the transfer is designed to liberate the worker from oppressive terms and conditions of employment;

(e) To influence or to attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency;

(f) To engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Republic of the Philippines;

(g) To obstruct or attempt to obstruct inspection by the Secretary of Labor or by his duly authorized representatives;

(h) To fail to file reports on the status of employment, placement vacancies, remittance of foreign exchange earnings, separation from jobs, departures and such other matters or information as may be required by the Secretary of Labor.

(i) To substitute or alter employment contracts approved and verified by the Department of Labor from the time of actual signing thereof by the parties up to and including the periods of expiration of the same without the approval of the Secretary of Labor;

(j) To become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in the management of a travel agency; and

(k) To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations other than those authorized under this Code and its implementing rules and regulations.

ART. 35. Suspension and/or cancellation of license or authority. - The Minister of Labor shall have the power to suspend or cancel any license or authority to recruit employees for overseas employment for violation of rules and regulations issued by the Ministry of Labor, the Overseas Employment Development Board, or for violation of the provisions of this and other applicable laws, General Orders and Letters of Instructions.

Chapter III MISCELLANEOUS PROVISIONS

ART. 36. Regulatory power. - The Secretary of Labor shall have the power to restrict and regulate the recruitment and placement activities of all agencies within the coverage of this Title and is hereby authorized to issue orders and promulgate rules and regulations to carry out the objectives and implement the provisions of this Title.

ART. 37. Visitorial Power. - The Secretary of Labor or his duly authorized representatives may, at any time, inspect the premises, books of accounts and records of any person or entity covered by this Title, require it to submit reports regularly on prescribed forms, and act on violation of any provisions of this Title.

ART. 38. Illegal recruitment. - (a) Any recruitment activities, including the prohibited practices enumerated under Article 34 of this Code, to be undertaken by non-licensees or non-holders of authority, shall be deemed illegal and punishable under Article 39 of this Code. The Department of Labor and Employment or any law enforcement officer may initiate complaints under this Article.

(b) Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage and shall be penalized in accordance with Article 39 hereof.

Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any unlawful or illegal transaction, enterprise or scheme defined under the first paragraph hereof. Illegal recruitment is deemed committed in large scale if committed against three (3) or more persons individually or as a group.

(c) The Secretary of Labor and Employment or his duly authorized representatives shall have the power to cause the arrest and detention of such non-licensee or non-holder of authority if after investigation it is determined that his activities constitute a danger to national security and public order or will lead to further exploitation of job-seekers. The Secretary shall order the search of the office or premises and seizure of documents, paraphernalia, properties and other implements used in illegal recruitment activities and the closure of companies, establishments and entities found to be engaged in the recruitment of workers for overseas employment, without having been licensed or authorized to do so.

ART. 39. Penalties. - (a) The penalty of life imprisonment and a fine of One Hundred Thousand Pesos (P1000,000.00) shall be imposed if illegal recruitment constitutes economic sabotage as defined herein; 

(b) Any licensee or holder of authority found violating or causing another to violate any provision of this Title or its implementing rules and regulations shall, upon conviction thereof, suffer the penalty of imprisonment of not less than two years nor more than five years or a fine of not less than P10,000 nor more than P50,000, or both such imprisonment and fine, at the discretion of the court;

(c) Any person who is neither a licensee nor a holder of authority under this Title found violating any provision thereof or its implementing rules and regulations shall, upon conviction thereof, suffer the penalty of imprisonment of not less than four years nor more than eight years or a fine of not less than P20,000 nor more than P100,000 or both such imprisonment and fine, at the discretion of the court;

(d) If the offender is a corporation, partnership, association or entity, the penalty shall be imposed upon the officer or officers of the corporation, partnership, association or entity responsible for violation; and if such officer is an alien, he shall, in addition to the penalties herein prescribed, be deported without further proceedings;

(e) In every case, conviction shall cause and carry the automatic revocation of the license or authority and all the permits and privileges granted to such person or entity under this Title, and the forfeiture of the cash and surety bonds in favor of the Overseas Employment Development Board or the National Seamen Board, as the case may be, both of which are authorized to use the same exclusively to promote their objectives.

[edit] LABOR CODE - Title II EMPLOYMENT OF NON-RESIDENT ALIENS

Title II EMPLOYMENT OF NON-RESIDENT ALIENS

ART. 40. Employment permit of non-resident aliens. - Any alien seeking admission to the Philippines for employment purposes and any domestic or foreign employer who desires to engage an alien for employment in the Philippines shall obtain an employment permit from the Department of Labor.

The employment permit may be issued to a non-resident alien or to the applicant employer after a determination of the non-availability of a person in the Philippines who is competent, able and willing at the time of application to perform the services for which the alien is desired.

For an enterprise registered in preferred areas of investments, said employment permit may be issued upon recommendation of the government agency charged with the supervision of said registered enterprise.

ART. 41. Prohibition against transfer of employment. - (a) After the issuance of an employment permit, the alien shall not transfer to another job or change his employer without prior approval of the Secretary of Labor. 

(b) Any non-resident alien who shall take up employment in violation of the provision of this Title and its implementing rules and regulations shall be punished in accordance with the provisions of Articles 289 and 290 of the Labor Code.

In addition, the alien worker shall be subject to deportation after service of his sentence.

ART. 42. Submission of list. - Any employer employing non-resident foreign nationals on the effective date of this Code shall submit a list of such nationals to the Secretary of Labor within thirty (30) days after such date indicating their names, citizenship, foreign and local addresses, nature of employment and status of stay in the country. The Secretary of Labor shall then determine if they are entitled to an employment permit.

[edit] A Case Study on the Struggle of Filipino Workers Against Labor Contractualization

A Case Study on the Struggle of Filipino Workers Against Labor Contractualization

Labor flexibilization pertains to the relatively recent innovations in work organization and employment schemes associated with the adoption of new production technologies and/or human resource management techniques designed to extract greater profi ts prompted by increasing global competition. Labor flexibilization includes such measures as labor-only-contracting, subcontracting, the hiring of casuals and contractuals and other employment arrangements that enable capitalists to easily fire and hire or adjust the size and composition of the workforce according to demand.

It also includes such schemes as multi-skilling, job-leveling, shared services, self-directed teams, teamwork, pay-for-performance schemes and other similar working arrangements within the company or between affiliates that allow capitalists to shift and shuffle workers around the shop floor and speed-up work to fit new production requirements according to the capricious moods of the consumer market. The flexibilization of labor takes on two main forms: external flexibilization and internal flexibilization

A. External Flexibilization or Labor Contractualization

This refers to employment schemes that enable employers to easily hire and fire, and therefore modify the size and composition of the workforce according to demand. These schemes decidedly attenuate employer-employee relations in order to ease retrenchment and re-absorption (labor turnover) of a peripheral workforce while maintaining a stable core of workers.

There are two routes to external flexibilization:

(i) Outsourcing or Subcontracting

or the use of an agent or agents (subcontractors, labor-only contractors, temp/placement agencies, dispatch workers) between the principal employer and the worker. An example of this would be labor-only-contracting, subcontracting or agency-hiring of otherwise regular workers or dispatch workers.

(ii) Contingent Employment

or the direct-hiring of workers with no security of tenure for core production or services. Examples include part-timers, casuals, contractuals, apprentices, trainees, and the like.

B. Internal or Core Flexibilization

This pertains to internal arrangements concerning job structures and work organization for core (regular) workers. Included here are work arrangements that entail:

(i) Flexible Work Hours - for example, forced or routine overtime, 24-hour rotating shifts, weekend work shifts, etc. all of which seek to maximize the use of fi xed assets (equipment, machinery, land, etc.) and accelerate their amortization through, essentially, speeding-up work or work intensification.

(ii) Flexible Functions - multi-tasking, varied work, worksharing, job leveling, self-directed teams, “teamwork”, quality circles and other work arrangements with similarly benign and technical-sounding descriptions that re-classify jobs and salary-scales such that varied work positions become “interchangeable”, giving the capitalist the “flexibility” to shuffle individual workers around the shopfloor at no or minimal extra cost. This usually paves the way for redundancies and retrenchments, hence, reducing the payroll and the wage bill for capitalist employers.

(iii) Flexible Wages - traditionally, a euphemism for the license to evade “rigid” wage floors (i.e. mandatory minimum wages); under modern flexible production, its meaning has broadened to include a variety of salary schemes and incentives systems that attempt to tie individual pay to “individual performance” in order to improve productivity by encouraging “self-motivation” and “self-regulation.”

These schemes are observed in a wide array of firms across the globe inasmuch as capitalists everywhere must grab at every opportunity to reduce costs, increase productivity, gain market share and greater profits. Labor flexibilization, like liberalization, privatization and deregulation, is being trumpeted not just as an inevitability but as a positive and progressive requirement of “global competition.” But while new technology and new flexible employment arrangements may bring about fatter or more stable profit margins for big capitalists, it cannot and does not promise better lives for workers anywhere.

Unionism is undermined in the face of the increasing number of workers without secure tenure, hence, effectively rendered unorganizable at the workplace. Working conditions are also exacerbated by many flexibilization schemes that are designed to accelerate the pace and extend the length and scope of the working day. The hiring of apprentices, casuals and contractuals -- for whom certain benefits mandated by law for regular workers are denied - - to do the same or more intense work as workers with secure tenure effectively pushes down wages for all workers. In short, workers condemn labor flexibilization for increasing their exploitation.

Of the various schemes employed by foreign investors and the local business elites in the Philippines, labor contractualization poses the greatest threat to the lives of Filipino working people in recent history. It has intensify ed their exploitation and circumvented their rights guaranteed by both international labor conventions and by the country’s laws.

By obscuring formal employer-employee relations that compels owners to observe labor standards and workers’ rights, labor contractualization has enabled businesses to reduce an increasing part of their labor force into mere “factors of production”, mere commodities that can be thrown aside according to the vagaries of the market. This scheme of disempowering workers has enabled foreign investors and local big businesses to reduce their wage costs with brutal efficiency and, correspondingly, increase their profits tremendously.

Despite paying lip service to labor rights, the Philippine government is not only condoning the employment of labor contractualization schemes by foreign investors and local big businesses; it is, in fact, actively promoting it as state policy in accordance with the imperatives of global capital. Instead of punishing violators of labor standards and workers rights, the Philippine government merely issued an order calling on owners to effect “voluntary observance of labor norms and standards” among large firms.

This cannot be interpreted in any other way than that the government has not only abdicated its duty to implement laws safeguarding labor rights; it has, in fact, given business fi rms license to continue their anti-labor practices.

Notwithstanding, this assault on labor rights is generating increased resistance from Filipino workers. The success of the Amado Kadena (AK) labor union to force the US-owned Dole Philippines to regularize the employment of 1,500 contractual workers is a landmark in the Philippine labor movement’s struggle against labor fl exibilization. This is a preliminary report on the lessons and impact of that successful campaign.

THE DOLE PHILIPPINES AND ITS LABOR CONTRACTUALIZATION SCHEMES

Dole Philippines, at present a subsidiary of The Murdoch Group of Companies owned by the world-renowned tycoon James Murdoch, started its operations in the Philippines in 1965. Originally it only produced, and canned, pineapples for export. Today, it produces both fresh and canned fruit and vegetable products including banana, papaya, asparagus, passion fruit, and guava.

At the start, the company bought the 300 hectares public land leased in 1963 by the big landlord and former Marcos crony Geronimo Velasco to set up MEDCOR, a plantation company then involved in the production of cassava, copra and coffee for export to the United States and Japan. Not content with the 300 hectares, the company sought the intercession of former President Diosdado Macapagal, father of incumbent President Gloria Macapagal-Arroyo, to let it lease an additional 8,000 hectares from the government-owned National Development Corporation (NDC).

Over the years, the company was able to lease the plots of landholders including small farmers such that as of today the total land area covered by its plantation operations has reached 17,700 hectares. These are apart from the ancestral land of indigenous peoples that the company’s plantation is allegedly encompassing.

Early on, the company was able to cut labor cost by legal evasion that allowed it not to strictly implement the minimum wage law. It hired the additional personnel required by its expanding operations as casuals or under apprenticeship agreements which a liberal interpretation of the Philippine Labor Code allows. “Casual employees” refer to workers hired to perform “activities which are not usually necessary or desirable in the usual business or trade of the employer”.

“Apprentices” are on-the-job trainees performing same or similar work as regular employees but only for up to 6 months. They can be paid as low as 75% of the prevailing legal minimum wage. By 1985, casuals and apprentices already comprised 20 percent of the company’s workforce while regulars were 80 percent. Only regular workers enjoy security of tenure in that they cannot be dismissed from employment without due cause nor due process.

In 1986, however, while the company expanded its operations, the company also started its systematic assault on its workers’ rights according to union officials. It started employing schemes that violated provisions of international labor conventions and the Philippine Labor Code guaranteeing their observance.

The company started the assault by barring regular rank and fi le workers and management personnel it selected to layoff from entering the company premises. Five hundred eighty (380 management level personnel and 200 regular rank and fi le workers were laid-off over a period of two years. By 1988, the number of regular workers was reduced to 7,510 or 490 less than their numbers in 1986.

The company systematized its labor restructuring program in the succeeding years but directed it at the retrenchment of regular workers. First through a Voluntary Separation Program or VSP.

The immediate objective of the first phase of the retrenchment was to effect the retirement of workers who are frequently on sick leaves and medical leaves and other absences permissible under the law. In essence workers targeted for immediate lay-off were those whose labor power was deemed past their productive peaks due to abuse from the heavy workload and from the effects of unhealthy working conditions including the massive use of dangerous chemicals.

Retiring personnel working in departments requiring intensive labor and hiring contractual workers in their stead is the objective of the scheme’s second phase.

Under the VSP the company offered a separation package equivalent to 40 days salary for every year of service to workers who file for voluntary retirement, about 33% more than what’s required by Philippine law. However, about 3000 workers including the most skilled and productive took the offer and fi led for voluntary retirement. This forced the company to withdraw the offer and devise a more ruthless scheme.

It turned to employing harassment by penalizing workers it wants retired using company rules and policies as pretext. Those it wants retired were given successive warnings for committing violations. This enabled the company to force the retirement of more than 3,000 regular workers. This decimated the number of regulars and members of the workers labor union.

By the end of the company’s massive retrenchment program, or by 1990, the number of regular workers plunged to 4,310.

But even as the company undertook massive retrenchment of regular workers, it also increased its workforce by tens of thousands of untenured workers devoid of benefits and barred from exercising their other rights to: one, fill-in the jobs left by regular workers that the company laid off, and two, to fill-in the need for additional number of new workers required by the expansion of its operations.

In 1988, officers of the company organized “labor cooperatives” that served as agencies which the company negotiated with to supply it with 5,000 new workers. As the labor cooperatives and the company are the parties to the “service contract” and as the members of the cooperative are not recognized as parties to the same, this scheme eliminated the employer-employee relationship between Dole and the individual ”members of the cooperative” working for the company.

Although in theory this does not free the company from its obligation to accord the latter all rights guaranteed them by the law, in practice workers are effectively barred from exercising their rights Members of cooperatives are not allowed to form unions because in theory they are also the owners of the cooperative.

Additional schemes that circumvents the rights of recruits were eventually developed by the company. Among which is fixed-term employment. This involves hiring new workers under contracts fixing their employment to below six months or the length of time before the company is compelled by law to make the employment regular. After the termination of the old contract, they enter into a new one under the same terms.

A variation of fixed-term employment is hiring new workers whose contracts with the company are project-based. The only difference between fixed-term and project-based employment is that the untenured employment of the latter is not timebound but co-terminus with a vaguely- defined project; the duration of which is based solely on the discretion of company management.

Another scheme is contract growing initiated by the company in 1996. Under this scheme, farmers and their small plots of land are contracted by the company to grow agricultural products using finance provided by the latter. This not only afforded the company cheap use of the peasant’s land but also availed it the opportunity of utilizing the labor power of the peasants including the members of their families without the burden of according them wages and benefits mandated by law and other rights. The company estimates that every hectare of contracted farm requires the labor of only two workers on a fulltime basis.

Finally there are the so-called reliever workers. These are workers who wait in the company’s gates everyday, hoping that the company hires them at least for the day to replace those absent.

Their total number varies greatly but average in the thousands according to Dole workers.

By 2001, the number of untenured workers contracted under the abovementioned schemes comprised 14,200 or a little less than 79 percent of the company’s 18,000 total workforce.

CONDITIONS OF THE CONTRACTUAL WORKFORCE

A. Contractual Workers From the Labor Cooperatives

There are about 8 major cooperatives from whom the company hired 8,000 contractual workers or 40 percent of its total workforce. Many of these “cooperatives” were established by (retired) officials of the company to provide the latter with a cheap and docile labor pool. These cooperatives functioned as contracting parties that supplied labor to Dole. Coop members deployed to Dole work side by side with regular workers, doing the same tasks, under the same Dole supervisors, but paid less than half the equivalent in wages and benefits as regular workers.

Dole had sole supervision over the workers while the cooperative’s managers merely coordinated work assignments and handled the payroll in behalf of Dole. Under Philippine labor law, third parties who merely supply labor are considered illegitimate (labor-only-contractors) while third parties who supply services are considered legitimate (job contractors). Labor cooperatives such as those contracted by the Dole deliberately blur this distinction.

These 8 labor cooperatives and the corresponding number of their members hired by the company are:

1. Cannery Multi-purpose Cooperative (CAMPCO) ------------------------1,572 workers

2. Adventure Multi-purpose Cooperative of Polomolok (AMCOOP) ----1,726 workers

3. Tibud Cooperative ---------------------------------------------------------------1,490 workers

4. Baitus Cooperative --------------------------------------------------------------(no details)

5. Farb Cooperative ---------------------------------------------------------------- (do)

6. Polomolok Skilled Workers ---------------------------------------------------- (do)

7. Unified Engineering Cooperative --------------------------------------------- (do)

8. Johnson Cooperative ------------------------------------------------------------ (do)_____

TOTAL 8,000 workers6

The union pegs the total number of contractual workers at around 8,000 based on a headcount of non-regular workers who report to work in all departments.

Contractual workers hired from the cooperatives are often given labor intensive and dangerous jobs. They suffer increased health hazard due to their direct exposure to chemicals and use of unsafe production tools. The overwhelming majority has worked for the company as contractual workers for years; ranging from three to ten years.

They are not paid benefits due to workers as mandated by law except for the 13th month pay; and because the company does not recognize their right to join or form labor unions, they are denied benefits won by workers in collective bargaining.

What intensifies their oppression and exploitation is the company’s policy of imposing on them a daily production quota as requisite to their receiving the minimum wage. Said quota is more than double the average productivity of regular workers. Consequently, they need to work very fast making them prone to suffer from chronic fatigue, a sure sign that their bodies are heavily abused.

Fast motion also magnifies the danger from their sharp tools. Most of the time, they are unable to fulfill their daily quotas on time and have to spend more than eight hours (some spend as long as 11 hours) in the production line. Still, some receive daily wages much lower than the minimum wage because of their inability to fulfill their production quota despite doing unpaid overtime work.

B. Fixed-term Workers / Project-based Workers

Fixed-term workers / Project-based workers are directly hired by the company whose contracts lasts for a definite period of time. Fixed-termers are contracted for 3 to 6 months. Contracts for project-based workers usually last for 1 year. Their total number is around 2,000 that comprise 10 percent of the company’s 20,000 total work force.

In general, they suffer the same fate as those from the labor cooperatives. However, as they are directly hired by the company for a fixed period, they have a relatively more secure tenure at least for the duration of their employment contract.

C. Reliever Pool

Relievers are hired from the cooperatives and from the thousands of individuals trooping the company gates enduring the sun’s heat, rain, dust and pollution. They are hired by the day and are only deployed in the industrial section. Everyday a designated company personnel calls up the cooperatives and selects from those waiting in the company gates to replace any industrial worker absent from work.

The local union estimates that more than 1,000 relievers work for the company everyday without formal contract. They work under the same condition as those hired from the cooperatives and the fixed-term contract workers. However, they do not receive any employee benefits

D. Contract Growers Workers

They are workers hired by landowners contracted by the company to produce for a part of its production requirements. Total land area covered by contract growing is 5,200 hectares.

The company estimates that 2 hectares of contracted land under its contract growing scheme requires the labor of 1 worker. Therefore, the number of workers producing Dole products through landowners/contract growers is 2,600. Contract growers’ workers are among the most exploited and oppressed. They do quota work. Average wage received by contract grower workers is PhP40 which is PhP160 or 500 percent lower than the PhP200 received by workers doing the same type of work as employees in Dole plantations. All of them do not receive any employee benefits.

By employing contract growing scheme, the company saves millions of PhP in labor cost, as contract grower workers comprise 13 per cent of the 20,000 workers directly working for the company.

WHAT DOLE CORPORATION GAINS FROM LABOR CONTRACTUALIZATION

Labor contractualization allow employers to avoid paying wages and benefits, including separation pay, social security, Medicare, etc., that permanent or regular workers are legally entitled to, thus, effectively raising profits not by increasing productivity but by lowering the share of paid labor in the workday. On the other hand, each layer of subcontractor, labor-only-contractor or agency (including those disguised as cooperatives) between the worker and the principal employer represents one more layer extracting profits and exploiting the worker.

Casuals, contractuals, apprentices and other temporary workers are treated like stocks that must keep only with demand, or they are discarded otherwise. Just as storage represent uncirculating capital, or underutilized machinery denotes foregone profits, “excess” workers are deemed as extra costs that must be eliminated.

Furthermore, the very lack of job security forces docility upon temporary workers, enabling the employer to intensify their workload, and even setting the pace of work for the rest of the workforce as well. By the same logic, we witness the feminization of many branches of industry, namely the labor-intensive, export-oriented industries such as garments and semiconductors.

Just as employers prefer temporary workers faced with job insecurity, they also prefer single, female, migrant workers from the countryside, whose wages -- the cost of ensuring the worker continues to render labor and produce new workers -- is made artificially lower due to feudal-patriarchal social conventions.

On top of this, peripheral workers (e.g. homeworkers, contract growers) and contingent labor (e.g. contractuals or casuals) are effectively denied their right to form or join unions in the absence of secure tenure. And when a substantial share of the workforce is effectively un-unionizable, the bargaining leverage of even the unionized workers become muted, hence, multiplying gains reaped by capital.

Labor contractualization has tremendously increased the company’s annual profits by intensifying the amount of unpaid labor it is extracting from contractual workers.

At Dole, contractual workers are forced to perform more intensive labor and longer hours of work compared to regular workers through the imposition of production quotas above the average capacity of a common worker to perform in eight hours. Contractual workers usually spend more than 8 hours just to be able to take home a minimum wage and to fulfill their production quota; otherwise, the company pays them wages lower than what the minimum wage law requires corresponding to the deficit in their daily production quotas.

The company saves billions of PhP by denying contractual workers wages and benefits otherwise due them under the principle of equal pay for equal work which is stipulated in the constitution. These savings cause a corresponding increase to the company’s profits. Take the retirement benefits denied to contractual workers, for example.

The accrued retirement benefit they are entitled to receive from the company – equivalent to 26 days pay – as part of their separation pay should the company opt to terminate their employment after one year amounts to PhP76,544,000 . Then there is the denial of 13 month pay for most.

Then there is the denied service incentive pay of ten days per worker and, therefore, amounts to PhP29,440,000. The increase in company profit accrued from its denial of the mentioned benefits to contractual workers amounts to PhP182,528,000; or PhP12,400 per worker. And these are apart from the amounts the contractual workers are denied of from other non-payment of overtime work rendered, night work premium, holiday pay premium, and many others mandated by law.

Contractual workers are effectively denied the right to form or join labor unions. And majority of contractual workers of Dole Philippines are afraid to join the activities and mass struggles led by the local union because of their fear that the company might retaliate by terminating their employment. Their nonmembership to the union denies them other benefits gained by workers in their collective bargaining agreement (CBA) with the company; among which are:

signing bonus of PhP15,000 for the 5-year duration of the CBA or PhP3,000 per worker every year;

PhP390 monthly rice subsidy or PhP4,680 every year;

bottom-line bonus equivalent to 6 working week salary or 39 day salary every year – for minimum wage earners this translates to PhP7,800 . productivity bonus equivalent six working day salary

– for minimum wage earners this translates to PhP1,2000;

wage increase provision of the CBA where the lowest wage-paid union members receive PhP24 over and above the minimum wage; this means that PHP7,488 for the annual 312 working day is denied to contractual workers because they are not covered by the CBA. hospitalization benefit.

The above means that apart from the un-quantified hospitalization benefit, the denial of their right to join the local union cost each worker a minimum PhP24,480 annually from non-inclusion in the coverage of beneficiaries of the terms of the collective bargaining agreement. Correspondingly, the company saved a minimum PhP360,345,600 every year from the exclusion of the 14,720 contractual workers from the CBA.

THE WORKERS’ STRUGGLE AGAINST LABOR CONTRACTUALIZATION

The struggle of the workers of Dole Philippines against labor contractualization took many years to develop. It took painstaking and determined struggle by the workers to achieve the modest victory that they have reached so far.

The struggle is divided in phases. The first phase is the struggle to strengthen their ranks and overcome internal obstacles that for a long time kept them weak and vulnerable to the machinations of the company. The second phase follows the establishment of a strong organization that bound them tightly for their militant confrontation with the company.

A. 1st Phase – Conceding to Capital

Until 1985, or when the company was not yet employing massive labor contractualization, the workers of Dole Philippines were led by a local union affiliated with the Trade Union Center of the Philippines or TUCP.

Old time company workers say that officers of the TUCP only joined local union activities during CBA negotiations. Moreover, their only involvement was to act as negotiators. The negotiations were held in the country’s finest hotels and resorts; done in secret; and not supervised by the union membership, nor the proposals forwarded by their panel and the counter-proposals of the company reported to them. The best that the workers “won” in all CBA negotiations between the company and TUCP was a total of 75 cents in total wage increases and benefits prior to 1985.

The agreements did not also take into account the violation of the rights of about 20 percent of the company’s workforce that were employed under contracts that perpetually tied them to being casuals and apprentices denied of the right to receive benefits mandated by law. Though the Labor Code allows the employment of casuals and apprentices, for a maximum period of six months, this is only to make sure that said new hires learn the basics of their jobs as pre-requisite to their hiring as regular workers. The company’s policy of perpetually maintaining 20 per cent of its workforce for apprentice and casual employees is, therefore, a violation of the law.

In 1984, the workers decided to vote for a new union affiliated with the National Federation of Labor in a certification election in 1985. The TUCP tried to frustrate the workers’ expressed will and filed a case questioning the conduct of the elections at the Bureau of Labor Relations. Using this as pretext, the company withheld official recognition to the new union. However, the workers launched a massive protest campaign against this attempt to circumvent their will. This forced the company to recognize the victory of NFL.

The militancy of the protest action also forced the company to grant the workers’ demand to a wage increase of PhP36 payable in three installments – 14 in the first year, 12 in the next and then 10 in the succeeding year. The amount is 4800 percent higher than the highest wage increase of 75 cents the company granted the workers under the TUCP-negotiated CBAs.

It is clear that the company wished to prevent the ascension of NFL, which was then committed to militant struggle to advance the workers’ interests. The company would rather deal with the TUCP whose leadership decided what to demand for the workers at their own discretion, without taking into account the latter’s increasingly exploited situation, without their supervision nor participation, and that made them mere followers of what the TUCP and the company decided for them. This was especially so as the company was then in the process of initiating its labor contractualization scheme.

By the time the new union took office in 1985, the company was already deep into its plan of executing the scheme’s first phase. It fired the first salvo by laying-off of hundreds of employees including management personnel and rank and file workers.

However, in the succeeding years, the new union started to depart from its commitment to militant struggle and increasingly offered no resistance to the company’s onslaughts. Instead of organizing resistance to the massive retrenchment of regular workers, the union merely asked for a higher compensation package for those laid-off; a demand that the company readily accepted. By 1990 union membership decreased to a mere 3,800 from 8,000 in 1985.

By 1992, during the negotiations for an addendum to the collective bargaining agreement between the company and the union, management informed the union of its plans to organize more labor cooperatives to cover both skilled and unskilled workers and to be registered under the Cooperatives Development Authority. The union did not put up a fight. The union leaders merely told their members and other workers that they can not do anything about the company’s massive retrenchment of regular workers, their replacement with contractual workers and hiring more to man its expanding operations.

But the Dole workers were becoming increasingly disgruntled with the company’s labor contractualization schemes. In 1994 a coop worker filed a complaint with the Department of Labor which then issued a cease and desist order against one of the company’s labor-only-contractors disguised as a cooperative. The cooperative ceased operations temporarily but resumed operations soon after fulfilling the technical requirements to be classified as a legitimate job-contractor (e.g. minimum capital requirements, equipment, etc.).

But the trilateral relationship between Dole, the coops and the coop workers remained the same. In 1996, the company added contact growing to its labor contractualization scheme. Later on, it also added the hiring of relievers, fixed-term and project-based workers.

B. 2nd Phase – Confronting the Company

The workers returned to militant trade unionism in 2001 under the Amado Kadena (AK), an affiliate of the militant National Federation of Labor Unions (NAFLU) and Kilusang Mayo Uno (KMU). During the CBA negotiations between the company and AK-NAFLU-KMU, the workers launched sustained mass actions synchronized with the negotiations to demand, among others, the stop of labor contractualization. The campaign proved effective as the workers won most of their demands.

Among the victories were, a 7 percent increase in wages, rice subsidy, bottom line bonus, signing bonus, productivity bonus, health benefits, and others. The company was also forced to agree to limit its contractual workforce to only 20% of its regular workforce.

However this remained a symbolic victory since the company did not count coop workers as part of Dole’s direct workforce and kept the union in the dark about the true figures on the contractual workforce.

In 2002, the union decided to take on the issue of contractualization more seriously. They conducted their own survey to estimate the size of the contractual workforce (though they weren’t able to cover all departments). That same year they formed the “Youth Against Contractualization” in response to the nationwide call of the labor center, KMU, to organize against contractualization. In 2003 the union formed a task force to prepare for a new round of negotiations with management. And during the 2004 negotiations, one of the main demands of the union was the outright regularization of at least 2000 contract workers within two years. After months of negotiations and almost monthly mass actions by hundreds of union members, the company eventually agreed to regularize 1,500.

By virtue of this victory, the union was not only able to arrest the long-term decline in its membership, it was able to expand by almost 30% in two years. Though it has not been able to stop the massive contractualization program of the company, it has at least arrested its further expansion as a proportion of the total workforce. Today, the percentage of the contractual workforce is down to 73 percent or 14,720 of the company’s 20,000 total workforce from 79 percent in 2001.

More importantly, the union now enjoys better rapport with coop members – a growing number of whom turn to the union when they have work-related problems. And this is the most important basis for sustaining and raising the level of the workers’ resistance to labor contractualization at Dole in the future.

Already the union is reaping positive spillovers of its successful campaign to defend Dole workers’ right to security of tenure and better wages and benefits. Certification elections were held last month at Dole. Ninety six percent of all qualified voters cast their votes, and eighty percent of all voters elected the candidates of AK-NAFLU-KMU. Both, the number of voters and the number of votes garnered by the union know few parallels in the Philippine labor landscape, especially in a workforce of this size.

It is also serving as an inspiration to other workers and other unions confronting the seemingly immutable tide of labor flexibilization imposed by foreign and big local businesses and promoted by the Philippine government. After all, it happened at one of the biggest multinational corporations in the country today, owned by one of the biggest monopoly capitalists of the United States of America and all the economic and political clout that goes with this stature in a country that is still treated as an US neo-colony.

LESSONS AND PROSPECTS

As in many other companies in the Philippines and throughout the world, including dominant market players, the management of Dole Philippines is increasingly relying on labor contractualization and flexibilization in order to reduce labor costs, pass on the risks arising from unstable markets to their workers, and evade unions. On the other hand, these new “flexible employment arrangements” lower workers’ wages, benefits & undermine labor rights. Even existing regulations that are meant to restrict labor only- contracting and prevent abuse are easily circumvented by companies that are determined to squeeze more profits from their workers.

It is therefore not enough to extend formal labor rights to contractual or irregular workers as many commentators are wont to prescribe. This is especially true under a government that pays mere lip service to “the decent work agenda” while in practice hewing faithfully to neoliberal dogma and the demands of foreign monopoly capital. Labor regulations and enforcement are inseparable from relations of power, at the workplace and at the social level. Only the collective strength of conscious, well-organized and militant workers can countervail the multifarious schemes that capitalists employ to exploit labor and accumulate capital.

The struggle of Dole workers in the Philippines against labor contractualization demonstrates the objective unity of all workers -- whether regular or contractual – in fighting against this common threat to labor. By demanding the regularization of contractual workers, Amado-Kadena-NAFLU-KMU demonstrated that it represented the interests of all workers in Dole Philippines and not just the regular rank-and-file. Indeed, had the union allowed this scheme to proceed apace, the union itself would probably be rendered superfluous and inutile in a few years time, incapable of representing and fighting for the interests of workers at Dole Philippines.

Needless to say, the fight is far from over. There are ominous signs foretelling that the company is retooling its human resource management schemes against the workers and the union. For one, it has shown partisanship against the candidates of AK-NAFLU-KMU during the last union elections. And two, it is maneuvering to conceal the magnitude of its employment of contractual workers; especially so nowadays as the next CBA negotiation nears. It has transferred the relievers’ waiting area from the company gates to a place inside the company premises to hide the thousands of hopeful relievers from the public’s eyes; and or prevent union members from gathering evidence on the magnitude on their employment.

All these portend that the company is not willing to stop its policy of employing contractual labor, and will employ even more sophisticated tactics to resist the just demands of the workers to stop this scheme, be it in the next round of CBA negotiations or after.

Beyond Dole Philippines, there is a need to further develop the organized resistance of the labor movement in the Philippines to labor flexibilization and other threats wreaked upon the working class by capitalists. There is a need to draw lessons and build on the experiences of struggle of workers not just in Dole Philippines but in many other companies throughout the country as well as in other parts of the world. There is a need to raise our resistance not just at level of the enterprise, but at the national and even international levels.

Endnotes

1 The Amado Kadena labor union is a local affiliate of the National Federation of Labor Unions (NAFLU), a progressive labor federation under the militant labor center Kilusang Mayo Uno (KMU).

2 Previously, the company was a subsidiary of Dole-Hawaii whose mother company Castle, Cooke and Dole was controlled through majority equity by Mr. James Dole. Mr. Rupert Murdoch was only a minority owner until his conglomerate The Murdoch Group bought the stakes of other Castle, Cooke and Dole shareholders including those of Mr. James Dole.

3 But Dole obtains this finance from the government-owned Land Bank, then re-lends it to its contract growers thereby strengthening the company’s control over the latter.

4 Bared by the company to the labor union.

5 Except for the data on the number of labor cooperatives and the corresponding number of coop members hired by the company, which the local union provided, data here are from 2 respondents who were formerly hired as coop members. Said two respondents are now regular workers as they were among the beneficiaries of the union’s victorious struggle against labor contractualization.

6 From the yet to be finished survey of the local union. The total was arrived at by head count of labor cooperative members who regularly report to work.

7 Formula is Unpaid Accrued Retirement Benefit = No. of Contractual Workers X Average Workdays in a Month X Legally Mandated Minimum Wage or 14,720 contractual workers X 26 days X PhP200.

8 Formula is 14,720 contractual workers X 10 days X PhP200 minimum wage.

9 Formula is 39 days X PhP200.

10 Formula is 6 days X PhP200.

11 The TUCP is a publicly acknowledged partner of former President Ferdinand Marcos in maintaining “industrial peace” in the country during Martial Law. It continues to perform the same role today as a partner of the Philippine government in “tripartism”. Its officers appointed by the government monopolize so-called workers’ representation in “tripartite boards” especially the regional wage boards that have kept workers’ wages to hundreds of per cent below subsistence since 1989.

[edit] LABOR & EMPLOYMENT - How to fire your problem employee and avoid litigation?

LABOR & EMPLOYMENT ______________________________________________ How to fire your problem employee and avoid litigation?

Illegal dismissal is a growing litigation area in Labor Law that employers need to be aware of every time they terminate an employee. Many employers are reduced to penury out of a wrongful act of dismissal.

1.) The first step in avoiding litigation is to have company policies or Rules and Regulations developed to address the most common employee work performance and discipline concerns, then have each employee read and sign that they received these policies - usually done upon engagement of the employee. The policies should outline the company’s discipline process and outline what behaviors that an employee can be terminated immediately for, such as, theft, sexual harassment, and endangering other employees. Then coach your supervisors in using your company’s policies in connection with terminating employees. Most companies will have one verbal warning, one written warning, and then termination after the next incident. The company should develop forms for both the verbal and written warnings that supervisors can use. (If your company is unionized, there may be other steps involved in the termination process- usually outlined under the grievance procedure provisions in the Collective Bargaining Agreement)

2.) Document any written warnings that are given to the employee. During the written warning, be specific about their work performance concern and concentrate about what you expect to see as improvement. For example, “Helen, today is the third day in a row that you have been 30 minutes late to work. All employees are expected to be on time to work and I will be monitoring your future arrival times for the next four weeks. If further tardiness occurs, I will have to move on to the next disciplinary step.”

3.) Observe extreme caution in terminating employees on minor offenses such as tardiness, absence without official leave and other similar violations because recent decisions of the Supreme Court tend to favor the property rights of the employees rather than the disciplinary rules of employers. We therefore suggest that employers use lesser modes of penalties that are incorporated under your company rules and regulations for violators other than the supreme penalty of dismissal such as suspension without pay.

4.) Once you have determined that discipline is in order, set up a meeting with the employee right away. Write a "show cause letter" immediately requiring the employee to explain in writing usually within 24 hours from receipt of the letter especially if the violation involves serious offenses such as pilferage. For example, "Jay, please explain in writing within twenty-four (24) hours from receipt of this letter in the matter of your involvement in the pilferage of company properties. In the meantime, you are required to attend the formal investigation on March 28, 2003 at 2:00 PM at the President's Office."

5.) Keep the investigation private and away from eavesdropping co-workers and office gossip.

6.) If possible, request the assistance of your retained counsel to personally conduct the investigation. With his trial skills, the lawyer may ask the employee regarding his participation or non-participation of the charges, who will then recommend the proper penalties corresponding to the violation. Write down the minutes of the investigation and have the employee and all personnel who attended the investigation sign the minutes.

7.) After the investigation, if evidence of guilt is strong, suspend the employee immediately for a maximum period of 30 days without pay on the ground that his presence in the company poses a threat to the properties of the company. Be sure to come up with a Decision terminating the employee or or before the 30 day period, otherwise you will pay his salary after the lapse of the thirty (30) day period.

8.) Be sure to notify the employee of your decision to terminate him either personally or by registered mail at his last known address. Just causes for termination falls under Articles 282 of the Labor Code. Serious violation of company rules and regulations are also just causes for terminating an employee. If the employee refused to personally received the Notice of Termination, you can make an annotation "REFUSED TO RECEIVE" at the back of the letter. Proceed to send a copy of the letter of termination at the last known address of the employee. ____________________ Atty. Alexander Llanes Acain, Jr. is giving labor consultancy to his clients and has been conducting employee investigations for the past five (7) years in companies such as Toyota Pasong Tamo, Toyota Shaw and Ortigas and El Cielito Inn Chain of Hotels using the aforementioned method which are proven effective in avoiding labor litigation.

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[edit] A List of Important Terms in Employment Law with Definitions

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Professional Listing Pages Discrimination... Gender Discrimination National Origin Discrimination Pregnancy Discrimination Race and Color Discrimination Religious Discrimination Sexual Harassment

...and the Law Age Discrimination in Employment Act (ADEA) Americans with Disabilities Act (ADA) Employee Retirement Income Security Act (ERISA) Employment at Will Equal Pay Act Fair Labor Standards Act (FLSA) Family and Medical Leave Act (FMLA) Insurance Benefits on Termination and Resignation (COBRA) Mine Safety and Health Act (MSHA) Non-Compete Agreements Occupational Safety & Health Act (OSHA) Rehabilitation Act of 1974 (Rehab Act) Unemployment Benefits Uniformed Services Employment & Re-Employment Rights Act (USERRA) Worker Adjustment and Retraining Notification Act (WARN) Workers' Compensation (Workers' Comp)

Glossary of Terms and General Chronology

A List of Important Terms in Employment Law with Definitions

Age Discrimination. Choice for hiring, termination, or adverse employment action based solely on the worker’s age (over age 40).

Answer. An answer is filed in response to a complaint. In an answer, the defendant will either admit or deny allegations contained in the complaint.

Back-pay award. The difference between actual wages or salary paid and higher wages or salary paid retroactively, usually in an employment discrimination case.

Collective Bargaining Agreement. A contract between an employer and its employees generally negotiated by a union on behalf of all of the employees within its bargaining unit.

Complaint and Summons. These are the first papers filed in any lawsuit. The complaint will list the facts which the plaintiff believes supports her claims. The summons documents that the papers have been properly served.

Confidentiality and the Attorney-Client Privilege. Beginning with the initial consultation, everything you say to your attorney is confidential, whether or not you hire the attorney. Neither the attorney nor staff persons can ever disclose what you say. Exceptions to the attorney-client privilege are knowledge of crimes to be committed in the future.

Counter-complaint. Sometimes a defendant has a claim for money owed or damages it believes is owed by the plaintiff. In such a case, the defendant sues the plaintiff for recovery of those claims. The defendant becomes a counter-plaintiff, and the plaintiff becomes a counter-defendant.

Deposition. A conference where the lawyer asks a party questions under oath. A court reporter records the answers and prepares a transcript. Hearing answers before trial allows lawyers to know more about the case. It also allows the lawyer an opportunity to eliminate asking certain questions, thereby shortening the trial. Both parties, their lawyers, and the court reporter are generally the only persons who attend depositions.

Disabled. A person who has a mental or physical impairment which substantially limits a major life activity, such as walking, seeing, hearing, or other major life activities. Disabilities also include mental impairments.

Discovery. At any time during the case, preferably at the beginning, a party may file pleadings asking for discovery to learn about certain facts. Interrogatories, Request for Production of Documents, Request for Admissions, and Depositions are all forms of discovery. Almost always, there should be discovery before trial. In most cases, it is best to review discovery before a settlement offer is proposed. Generally, a party must respond to filed discovery within thirty days.

Discrimination. Choice for action based upon a subjective or arbitrary criteria. Some discrimination is actionable: race, age, gender, etc. Some is not: competency, education level, prior work history, etc.

Employment at will doctrine. At common law, all employment was at will--in other words, an employer could fire an employee for any reason. Laws which limit an employer’s ability to discipline or fire employees provide exceptions to this doctrine.

Equal Employment Opportunity Commission (EEOC). The federal agency which investigates and in some cases prosecutes Title VII claims (sex, race, religion, and national origin), Americans with Disabilities Act claims, and Age Discrimination (ADEA) claims.

Family Medical Leave Act. An act of Congress to provide up to 12 weeks of unpaid leave for workers to recover from certain illnesses and provide care for certain types of family members.

Front-pay award. Prospective award of projected future earnings, usually adjusted for present value. The idea behind front pay awards is to cure future damages without disturbing current employees of the defendant employer.

Injunction. At any time during a case, a party may ask for an order, usually temporary, preserving assets or protecting the party or the party’s property from physical harm.

Interrogatories. A set of written questions that must be answered in writing under oath.

Mediation. Mediation may be ordered by the court upon motion by either party or upon the court’s own decision. Mediation is an alternative to trial. It is a voluntary process whereby the parties meet with a mediator and try to settle all or part of a case.

Motion. A motion is a general term that describes a document that is filed and a procedure whereby the judge can rule on important questions during the case. For example, if discovery is overdue, a party will file a Motion to Compel Discovery. Generally, no witnesses will be heard. On most occasions, clients will not attend motion hearings.

Motion for Summary Judgment. Rule 56 of the Federal Rules of Civil Procedure, and most applicable state rules, provides for entry of a judgment of the court in favor of the party making the motion if all of the undisputed facts support all of the necessary elements of its claim or defense. For a Motion for Summary Judgment to be successful, the court must conclude that no reasonable jury could construe the facts in favor of the non-moving party. Usually a defense tactic. If the defendant’s motion for summary judgment fails, the case typically proceeds to trial shortly thereafter.

Progressive Discipline. An employer’s policy to impose discipline based on a predetermined formula which progresses from lesser discipline, such as a warning or counseling, to more severe discipline, such as suspension or termination. The discipline is accompanied by written documentation. The idea behind progressive discipline is to provide an opportunity for the employee to correct performance issues over time, while giving the employer an increasing leverage. Most if not all progressive disciplinary policies provide for immediate termination for certain "major infractions."

Race Discrimination. Choice for hiring, termination, or adverse employment action based solely on the worker’s race.

Reductions in Force. An employer’s program to cut the number of positions employed at a specific work location or company wide.

Request for Production of Documents. A list of documents that must be organized and produced to the party filing the Request.

Retaliation. Action or conduct intended to punish or deter workers from seeking or invoking protection under state or federal employment laws.

Right to Sue Letter. A document issued by the EEOC declining to pursue an employment claim for an employee. The employee then has 90 days following receipt of the letter to file a Complaint in Federal District Court; otherwise the claim is extinguished forever and may never be pursued again.

Right to work doctrine. State law which prohibits unions or employers from requiring union membership as a condition to employment. An employee who chooses not to join a properly qualified union is not required to do so, but may be bound by the union’s collective bargaining agreements with the employer. The non-union employee may also be entitled to some union benefits, depending upon the wording of the collective bargaining agreement.

Service. Before a case is started, the defendant must be served with the papers which give the defendant notice that a lawsuit has been filed. The Sheriff or a private process server will perform this function. A party or lawyer cannot serve lawsuits.

Severance Package. An agreement between an employer and an employee which contains the terms under which the employee’s employment will be terminated. Usually contains a release of all known and unknown claims by the employee against the employer in exchange for a sum of money.

Sexual Harassment. Offensive conduct which is directed at a worker due to the worker’s gender. Such conduct is actionable if it affects the worker’s employment performance.

Termination. The ending of the employer/employee relationship. Terminations may be voluntary, initiated by the employee to pursue another opportunity. Terminations may also be involuntary, initiated by the employer for economic, disciplinary, or other reasons.

Whistle Blowing. Act of worker to report criminal acts of employer to proper authorities. In most states does not include notifying the media alone.

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[edit] G.R. No. 85279 July 28, 1989 - SOCIAL SECURITY SYSTEM EMPLOYEES ASSOCIATION vs. COURT OF APPEALS, ET AL.

PHILIPPINE JURISPRUDENCE - FULL TEXT The Lawphil Project - Arellano Law Foundation G.R. No. 85279 July 28, 1989 SOCIAL SECURITY SYSTEM EMPLOYEES ASSOCIATION vs. COURT OF APPEALS, ET AL.

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Republic of the Philippines SUPREME COURT Manila

THIRD DIVISION

G.R. No. 85279 July 28, 1989

SOCIAL SECURITY SYSTEM EMPLOYEES ASSOCIATION (SSSEA), DIONISION T. BAYLON, RAMON MODESTO, JUANITO MADURA, REUBEN ZAMORA, VIRGILIO DE ALDAY, SERGIO ARANETA, PLACIDO AGUSTIN, VIRGILIO MAGPAYO, petitioner, vs. THE COURT OF APPEALS, SOCIAL SECURITY SYSTEM (SSS), HON. CEZAR C. PERALEJO, RTC, BRANCH 98, QUEZON CITY, respondents.

Vicente T. Ocampo & Associates for petitioners.

CORTES, J:

Primarily, the issue raised in this petition is whether or not the Regional Trial Court can enjoin the Social Security System Employees Association (SSSEA) from striking and order the striking employees to return to work. Collaterally, it is whether or not employees of the Social Security System (SSS) have the right to strike.

The antecedents are as follows:

On June 11, 1987, the SSS filed with the Regional Trial Court of Quezon City a complaint for damages with a prayer for a writ of preliminary injunction against petitioners, alleging that on June 9, 1987, the officers and members of SSSEA staged an illegal strike and baricaded the entrances to the SSS Building, preventing non-striking employees from reporting for work and SSS members from transacting business with the SSS; that the strike was reported to the Public Sector Labor - Management Council, which ordered the strikers to return to work; that the strikers refused to return to work; and that the SSS suffered damages as a result of the strike. The complaint prayed that a writ of preliminary injunction be issued to enjoin the strike and that the strikers be ordered to return to work; that the defendants (petitioners herein) be ordered to pay damages; and that the strike be declared illegal.

It appears that the SSSEA went on strike after the SSS failed to act on the union's demands, which included: implementation of the provisions of the old SSS-SSSEA collective bargaining agreement (CBA) on check-off of union dues; payment of accrued overtime pay, night differential pay and holiday pay; conversion of temporary or contractual employees with six (6) months or more of service into regular and permanent employees and their entitlement to the same salaries, allowances and benefits given to other regular employees of the SSS; and payment of the children's allowance of P30.00, and after the SSS deducted certain amounts from the salaries of the employees and allegedly committed acts of discrimination and unfair labor practices [Rollo, pp. 21-241].

The court a quo, on June 11, 1987, issued a temporary restraining order pending resolution of the application for a writ of preliminary injunction [Rollo, p. 71.] In the meantime, petitioners filed a motion to dismiss alleging the trial court's lack of jurisdiction over the subject matter [Rollo, pp. 72-82.] To this motion, the SSS filed an opposition, reiterating its prayer for the issuance of a writ of injunction [Rollo, pp. 209-222]. On July 22,1987, in a four-page order, the court a quo denied the motion to dismiss and converted the restraining order into an injunction upon posting of a bond, after finding that the strike was illegal [Rollo, pp. 83- 86]. As petitioners' motion for the reconsideration of the aforesaid order was also denied on August 14, 1988 [Rollo, p. 94], petitioners filed a petition for certiorari and prohibition with preliminary injunction before this Court. Their petition was docketed as G.R. No. 79577. In a resolution dated October 21, 1987, the Court, through the Third Division, resolved to refer the case to the Court of Appeals. Petitioners filed a motion for reconsideration thereof, but during its pendency the Court of Appeals on March 9,1988 promulgated its decision on the referred case [Rollo, pp. 130-137]. Petitioners moved to recall the Court of Appeals' decision. In the meantime, the Court on June 29,1988 denied the motion for reconsideration in G.R. No. 97577 for being moot and academic. Petitioners' motion to recall the decision of the Court of Appeals was also denied in view of this Court's denial of the motion for reconsideration [Rollo, pp. 141- 143]. Hence, the instant petition to review the decision of the Court of Appeals [Rollo, pp. 12-37].

Upon motion of the SSS on February 6,1989, the Court issued a temporary restraining order enjoining the petitioners from staging another strike or from pursuing the notice of strike they filed with the Department of Labor and Employment on January 25, 1989 and to maintain the status quo [Rollo, pp. 151-152].

The Court, taking the comment as answer, and noting the reply and supplemental reply filed by petitioners, considered the issues joined and the case submitted for decision.

The position of the petitioners is that the Regional Trial Court had no jurisdiction to hear the case initiated by the SSS and to issue the restraining order and the writ of preliminary injunction, as jurisdiction lay with the Department of Labor and Employment or the National Labor Relations Commission, since the case involves a labor dispute.

On the other hand, the SSS advances the contrary view, on the ground that the employees of the SSS are covered by civil service laws and rules and regulations, not the Labor Code, therefore they do not have the right to strike. Since neither the DOLE nor the NLRC has jurisdiction over the dispute, the Regional Trial Court may enjoin the employees from striking.

In dismissing the petition for certiorari and prohibition with preliminary injunction filed by petitioners, the Court of Appeals held that since the employees of the SSS, are government employees, they are not allowed to strike, and may be enjoined by the Regional Trial Court, which had jurisdiction over the SSS' complaint for damages, from continuing with their strike.

Thus, the sequential questions to be resolved by the Court in deciding whether or not the Court of Appeals erred in finding that the Regional Trial Court did not act without or in excess of jurisdiction when it took cognizance of the case and enjoined the strike are as follows:

1. Do the employees of the SSS have the right to strike?

2. Does the Regional Trial Court have jurisdiction to hear the case initiated by the SSS and to enjoin the strikers from continuing with the strike and to order them to return to work?

These shall be discussed and resolved seriatim

I

The 1987 Constitution, in the Article on Social Justice and Human Rights, provides that the State "shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law" [Art. XIII, Sec. 31].

By itself, this provision would seem to recognize the right of all workers and employees, including those in the public sector, to strike. But the Constitution itself fails to expressly confirm this impression, for in the Sub-Article on the Civil Service Commission, it provides, after defining the scope of the civil service as "all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters," that "[t]he right to self-organization shall not be denied to government employees" [Art. IX(B), Sec. 2(l) and (50)]. Parenthetically, the Bill of Rights also provides that "[tlhe right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not abridged" [Art. III, Sec. 8]. Thus, while there is no question that the Constitution recognizes the right of government employees to organize, it is silent as to whether such recognition also includes the right to strike.

Resort to the intent of the framers of the organic law becomes helpful in understanding the meaning of these provisions. A reading of the proceedings of the Constitutional Commission that drafted the 1987 Constitution would show that in recognizing the right of government employees to organize, the commissioners intended to limit the right to the formation of unions or associations only, without including the right to strike.

Thus, Commissioner Eulogio R. Lerum, one of the sponsors of the provision that "[tlhe right to self-organization shall not be denied to government employees" [Art. IX(B), Sec. 2(5)], in answer to the apprehensions expressed by Commissioner Ambrosio B. Padilla, Vice-President of the Commission, explained:

MR. LERUM. I think what I will try to say will not take that long. When we proposed this amendment providing for self-organization of government employees, it does not mean that because they have the right to organize, they also have the right to strike. That is a different matter. We are only talking about organizing, uniting as a union. With regard to the right to strike, everyone will remember that in the Bill of Rights, there is a provision that the right to form associations or societies whose purpose is not contrary to law shall not be abridged. Now then, if the purpose of the state is to prohibit the strikes coming from employees exercising government functions, that could be done because the moment that is prohibited, then the union which will go on strike will be an illegal union. And that provision is carried in Republic Act 875. In Republic Act 875, workers, including those from the government-owned and controlled, are allowed to organize but they are prohibited from striking. So, the fear of our honorable Vice- President is unfounded. It does not mean that because we approve this resolution, it carries with it the right to strike. That is a different matter. As a matter of fact, that subject is now being discussed in the Committee on Social Justice because we are trying to find a solution to this problem. We know that this problem exist; that the moment we allow anybody in the government to strike, then what will happen if the members of the Armed Forces will go on strike? What will happen to those people trying to protect us? So that is a matter of discussion in the Committee on Social Justice. But, I repeat, the right to form an organization does not carry with it the right to strike. [Record of the Constitutional Commission, vol. 1, p. 569].

It will be recalled that the Industrial Peace Act (R.A. No. 875), which was repealed by the Labor Code (P.D. 442) in 1974, expressly banned strikes by employees in the Government, including instrumentalities exercising governmental functions, but excluding entities entrusted with proprietary functions:

.Sec. 11. Prohibition Against Strikes in the Government. — The terms and conditions of employment in the Government, including any political subdivision or instrumentality thereof, are governed by law and it is declared to be the policy of this Act that employees therein shall not strike for the purpose of securing changes or modification in their terms and conditions of employment. Such employees may belong to any labor organization which does not impose the obligation to strike or to join in strike: Provided, however, That this section shall apply only to employees employed in governmental functions and not those employed in proprietary functions of the Government including but not limited to governmental corporations.

No similar provision is found in the Labor Code, although at one time it recognized the right of employees of government corporations established under the Corporation Code to organize and bargain collectively and those in the civil service to "form organizations for purposes not contrary to law" [Art. 244, before its amendment by B.P. Blg. 70 in 1980], in the same breath it provided that "[t]he terms and conditions of employment of all government employees, including employees of government owned and controlled corporations, shall be governed by the Civil Service Law, rules and regulations" [now Art. 276]. Understandably, the Labor Code is silent as to whether or not government employees may strike, for such are excluded from its coverage [Ibid]. But then the Civil Service Decree [P.D. No. 807], is equally silent on the matter.

On June 1, 1987, to implement the constitutional guarantee of the right of government employees to organize, the President issued E.O. No. 180 which provides guidelines for the exercise of the right to organize of government employees. In Section 14 thereof, it is provided that "[t]he Civil Service law and rules governing concerted activities and strikes in the government service shall be observed, subject to any legislation that may be enacted by Congress." The President was apparently referring to Memorandum Circular No. 6, s. 1987 of the Civil Service Commission under date April 21, 1987 which, "prior to the enactment by Congress of applicable laws concerning strike by government employees ... enjoins under pain of administrative sanctions, all government officers and employees from staging strikes, demonstrations, mass leaves, walk-outs and other forms of mass action which will result in temporary stoppage or disruption of public service." The air was thus cleared of the confusion. At present, in the absence of any legislation allowing government employees to strike, recognizing their right to do so, or regulating the exercise of the right, they are prohibited from striking, by express provision of Memorandum Circular No. 6 and as implied in E.O. No. 180. [At this juncture, it must be stated that the validity of Memorandum Circular No. 6 is not at issue].

But are employees of the SSS covered by the prohibition against strikes?

The Court is of the considered view that they are. Considering that under the 1987 Constitution "[t]he civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters" [Art. IX(B), Sec. .2(l) see also Sec. 1 of E.O. No. 180 where the employees in the civil service are denominated as "government employees"] and that the SSS is one such government-controlled corporation with an original charter, having been created under R.A. No. 1161, its employees are part of the civil service [NASECO v. NLRC, G.R. Nos. 69870 & 70295, November 24,1988] and are covered by the Civil Service Commission's memorandum prohibiting strikes. This being the case, the strike staged by the employees of the SSS was illegal.

The statement of the Court in Alliance of Government Workers v. Minister of Labor and Employment [G.R. No. 60403, August 3, 1:983, 124 SCRA 11 is relevant as it furnishes the rationale for distinguishing between workers in the private sector and government employees with regard to the right to strike:

The general rule in the past and up to the present is that 'the terms and conditions of employment in the Government, including any political subdivision or instrumentality thereof are governed by law" (Section 11, the Industrial Peace Act, R.A. No. 875, as amended and Article 277, the Labor Code, P.D. No. 442, as amended). Since the terms and conditions of government employment are fixed by law, government workers cannot use the same weapons employed by workers in the private sector to secure concessions from their employers. The principle behind labor unionism in private industry is that industrial peace cannot be secured through compulsion by law. Relations between private employers and their employees rest on an essentially voluntary basis. Subject to the minimum requirements of wage laws and other labor and welfare legislation, the terms and conditions of employment in the unionized private sector are settled through the process of collective bargaining. In government employment, however, it is the legislature and, where properly given delegated power, the administrative heads of government which fix the terms and conditions of employment. And this is effected through statutes or administrative circulars, rules, and regulations, not through collective bargaining agreements. [At p. 13; Emphasis supplied].

Apropos is the observation of the Acting Commissioner of Civil Service, in his position paper submitted to the 1971 Constitutional Convention, and quoted with approval by the Court in Alliance, to wit:

It is the stand, therefore, of this Commission that by reason of the nature of the public employer and the peculiar character of the public service, it must necessarily regard the right to strike given to unions in private industry as not applying to public employees and civil service employees. It has been stated that the Government, in contrast to the private employer, protects the interest of all people in the public service, and that accordingly, such conflicting interests as are present in private labor relations could not exist in the relations between government and those whom they employ. [At pp. 16-17; also quoted in National Housing Corporation v. Juco, G.R. No. 64313, January 17,1985,134 SCRA 172,178-179].

E.O. No. 180, which provides guidelines for the exercise of the right to organize of government employees, while clinging to the same philosophy, has, however, relaxed the rule to allow negotiation where the terms and conditions of employment involved are not among those fixed by law. Thus:

.SECTION 13. Terms and conditions of employment or improvements thereof, except those that are fixed by law, may be the subject of negotiations between duly recognized employees' organizations and appropriate government authorities.

The same executive order has also provided for the general mechanism for the settlement of labor disputes in the public sector to wit:

.SECTION 16. The Civil Service and labor laws and procedures, whenever applicable, shall be followed in the resolution of complaints, grievances and cases involving government employees. In case any dispute remains unresolved after exhausting all the available remedies under existing laws and procedures, the parties may jointly refer the dispute to the [Public Sector Labor- Management] Council for appropriate action.

Government employees may, therefore, through their unions or associations, either petition the Congress for the betterment of the terms and conditions of employment which are within the ambit of legislation or negotiate with the appropriate government agencies for the improvement of those which are not fixed by law. If there be any unresolved grievances, the dispute may be referred to the Public Sector Labor - Management Council for appropriate action. But employees in the civil service may not resort to strikes, walk-outs and other temporary work stoppages, like workers in the private sector, to pressure the Govemment to accede to their demands. As now provided under Sec. 4, Rule III of the Rules and Regulations to Govern the Exercise of the Right of Government- Employees to Self- Organization, which took effect after the instant dispute arose, "[t]he terms and conditions of employment in the government, including any political subdivision or instrumentality thereof and government- owned and controlled corporations with original charters are governed by law and employees therein shall not strike for the purpose of securing changes thereof."

II

The strike staged by the employees of the SSS belonging to petitioner union being prohibited by law, an injunction may be issued to restrain it.

It is futile for the petitioners to assert that the subject labor dispute falls within the exclusive jurisdiction of the NLRC and, hence, the Regional Trial Court had no jurisdiction to issue a writ of injunction enjoining the continuance of the strike. The Labor Code itself provides that terms and conditions of employment of government employees shall be governed by the Civil Service Law, rules and regulations [Art. 276]. More importantly, E.O. No. 180 vests the Public Sector Labor - Management Council with jurisdiction over unresolved labor disputes involving government employees [Sec. 16]. Clearly, the NLRC has no jurisdiction over the dispute.

This being the case, the Regional Trial Court was not precluded, in the exercise of its general jurisdiction under B.P. Blg. 129, as amended, from assuming jurisdiction over the SSS's complaint for damages and issuing the injunctive writ prayed for therein. Unlike the NLRC, the Public Sector Labor - Management Council has not been granted by law authority to issue writs of injunction in labor disputes within its jurisdiction. Thus, since it is the Council, and not the NLRC, that has jurisdiction over the instant labor dispute, resort to the general courts of law for the issuance of a writ of injunction to enjoin the strike is appropriate.

Neither could the court a quo be accused of imprudence or overzealousness, for in fact it had proceeded with caution. Thus, after issuing a writ of injunction enjoining the continuance of the strike to prevent any further disruption of public service, the respondent judge, in the same order, admonished the parties to refer the unresolved controversies emanating from their employer- employee relationship to the Public Sector Labor - Management Council for appropriate action [Rollo, p. 86].

III

In their "Petition/Application for Preliminary and Mandatory Injunction," and reiterated in their reply and supplemental reply, petitioners allege that the SSS unlawfully withheld bonuses and benefits due the individual petitioners and they pray that the Court issue a writ of preliminary prohibitive and mandatory injunction to restrain the SSS and its agents from withholding payment thereof and to compel the SSS to pay them. In their supplemental reply, petitioners annexed an order of the Civil Service Commission, dated May 5, 1989, which ruled that the officers of the SSSEA who are not preventively suspended and who are reporting for work pending the resolution of the administrative cases against them are entitled to their salaries, year-end bonuses and other fringe benefits and affirmed the previous order of the Merit Systems Promotion Board.

The matter being extraneous to the issues elevated to this Court, it is Our view that petitioners' remedy is not to petition this Court to issue an injunction, but to cause the execution of the aforesaid order, if it has already become final.

WHEREFORE, no reversible error having been committed by the Court of Appeals, the instant petition for review is hereby DENIED and the decision of the appellate court dated March 9, 1988 in CA-G.R. SP No. 13192 is AFFIRMED. Petitioners' "Petition/Application for Preliminary and Mandatory Injunction" dated December 13,1988 is DENIED.

SO ORDERED.

Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

[edit] DOLE On Wage System and Policy

Frequently Asked Questions

On Wage System and Policy

What is the present minimum wage fixing system in the country today? What are the criteria for minimum wage fixing adopted by the Boards? Can the Regional Boards issue a wage order even without a petition for wage increase? Can the Regional Boards grant across-the-board wage increases? How is the equivalent monthly rate (EMR) of monthly-paid and daily-paid employees computed? What is the formulae on the Computation of the Equivalent Monthly Mimimum Wage Rates for Muslim and Non-Muslim Sector.

Procedure on Minimum Wage Fixing

How long does it take the Regional Boards to issue a wage order? How often can the Boards issue a wage order? Can the wage order issued by the Boards be appealed? How are wage distortions corrected?

Coverage of Wage Orders and Exemtion

Who are covered by wage orders issued by the Boards? Who are exempted from wage orders issued by the Boards? What are the criteria and requirements to qualify for exemption? How long is the exemption granted to qualified establishments? What is the effect of a disapproved application for exemption?

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On Wage System and Policy

What is the present Minimum Wage Fixing System in the country today?

    Since 1989, minimum wage fixing is done on a regional basis. Previously, it was done at the national level through acts of Congress or by presidential decrees or executive orders.

   The Regional Boards, located in each of the 16 regions of the country, are the wage setting bodies established by virtue of Republic Act RA 6727 , also known as the Wage Rationalization Act issued on 01 July 1989. These Boards set minimum wages for workers in the private sector.

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What are the criteria for Minimum Wage Fixing adopted by the boards?

    There are 10 criteria for minimum wage fixing under RA 6727 and one under the Rules of Procedures for Minimum Wage Fixing, categorized into four major groups, namely:

(1) Needs of workers and their families demand for living wage wage adjustment vis-à-vis CPI cost of living and changes therein needs of workers and their families improvements in standards of living

(2) Capacity to pay of employers/industry fair return on capital invested and to pay of employers productivity

(3) Comparable wages prevailing wage levels

(4) Requirements for national development need to induce industries to invest in the countryside effects on employment generation and family income equitable distribution of income and wealth along the imperatives of economic social development

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Can the Regional Boards issue a Wage Order even without a petition for wage increase?

    Yes, even in the absence of a filed petition for wage increase, Regional Boards can, motu proprio, initiate action or inquiry on whether a wage order should be issued.

    A public hearing is required before the Boards can issue a wage order.

    Records show that the Boards issued a total of 133 Wage Orders since 1990. Of this number, 62% (83) was issued motu proprio, while 38% (50) was issued by virtue of a petition for wage increase.

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Can the Regional Boards grant Across-the-Board wage increases?

    The wage-setting function of the Regional Boards is confined to minimum wages. 
    
    While across-the-board (ATB) wage increases have been granted in the past, current policy discourages the Boards from granting ATB adjustments as they create more distortions in the labor market which in turn affect adversely the incomes and standard of living of workers and thier families. Specifically:

ATB wage increases have greater impact on inflation ATB wage increases are disincentives to trade unionism ATB increases are not consistent with minimum wage fixing mandate of the Boards

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How is the equivalent monthly rate (EMR) of the monthly-paid and daily-paid employees computed?

   Under the Labor Code, private sector workers should receive the applicable minimum wages not lower than those prescribed by the Regional Boards under existing wage orders. At present, the prescribed minimum wages are for normal working hours, which shall not exceed eight hours per day.

For monthly-paid employees

    The factor 365 days in a year is used in determining the equivalent annual salary of monthly-paid employees. To compute their EMR, the procedure is as follows: 

             EMR = Applicable Daily Rate x 365 days
                   __________________________________
                                  12 

      Where 365 days     299 days -   Ordinary working days 
                     =
                          52 days -  Sundays/Rest days 
                          11 days -  Regular Holidays 
                           3 days -  Special days 
                         ___________                          
                         365 days -  Total equivalent number of days 

For daily-paid employees

    The following formula may be used in computing the EMR of different groups of daily-paid employees for purposes of entitlement to minimum wages and allied benefits under existing laws:

a) For those who are required to works everyday including Sundays or rest days, special days and regular holidays.

           EMR = Applicable Daily Rate x 392.50 days
                 __________________________________
                                  12 

       Where 392.50 days  299.00 days   Ordinary working days 
                           
                          22.00 days -  Regular holidays 
                          67.60 days -  52 rest days x 130% 
                           3.90 days -  3 special days x 130% 
                         ____________
                         392.50 days   Total equivalent number of days 

b) For those who do not work and are not considered paid on Sundays or rest days.

            EMR = ADR x 313 days
                  _________________
                       12 

       Where 313 days 299 days   Ordinary working days 
                  
                         11 days -  Regular holidays 
                          3 days -  Special days 
                        313 days -  Total equivalent number of days 

c) For those who do not work and are not considered paid on Saturdays and Sundays or rest days

              EMR = ADR x 261 days
                    ________________
                          12 

       Where 261 days  247 days   Ordinary working days 

                        11 days -   Regular holidays 
                         3 days -  Special days 
                       261 days -  Total equivalent number of days 

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Procedures on Minimum Wage Fixing

How long does it take the boards to issue a wage order?

    In general, the Boards can issue a wage order within 90 days, given the procedural requirements under the Rules of Procedures for Minimum Wage Fixing. The Boards are specifically required to issue a wage order within 30 days from date of the last public hearing. Thereafter, a Wage Order becomes effective 15 days after it has been published in a newspaper of general circulation in the area of jurisdiction.    

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How often can the Boards issue a wage order?

    In general, the Boards can issue a Wage Order only once in a given year. 

    Within the 12-month period from effectivity of the wage order, no petition for wage increase may be entertained, except when there is a supervening condition, such as an extraordinary increase in prices of petroleum products and basic goods and services.

    The existence of supervening condition is to be determined by the Boards and confirmed by the NWPC.

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Can the Wage Orders issued by the Boards be appealed?

    Yes, any aggrieved party may file an appeal with the NWPC through the Board within 10 days from the date of publication of the Wage Order

The grounds for appeal are:

non-conformity with prescribed guidelines; question of law; grave abuse of discretion.

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How are Wage Distortion corrected?

    Should disputes arise as a result of wage distortion, RA 6727 provides for correcting the distortions as follows:

In organized firms, the employer and the union shall negotiate to correct the distortion using the grievance procedures in the CBA or, if the dispute remains unresolved, through voluntary arbitration.

In unorganized firms, the employers and workers endeavor to correct the distortion. Any dispute is settled by conciliation through the National Conciliation and Mediation Board, or if it remains unresolved, by compulsory arbitration through the National Labor Relations Commission.

    This provision for correcting wage distortions is also stipulated in all Wage Orders being issued by the Regional Boards.

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What are some of the suggested formulas for correcting Wage Distortion?

              The following are some of the suggested formulas for correcting the effects of the implementation of wage orders in the existing wage structures of firms: 

1. Pineda Formula

  Previous minimum wage   
 Wage distortion adjustment = 

---

x Mandated wage Increase 
 Wage of Employee   

2. Pineda-Cruz-So Formula

  Previous minimum wagen   
 Wage distortion adjustment = 

---

x Mandated wage Increase 
 Wage of Employee   

 
      Where : Exponent is represented by  n 
       

3. Percentile Approach

 Wage distortion adjustment = Percentile weight of pay group  x Mandated wage Increase 

4. Philippine Construction Supply Formula

 Existing minimum wage   
 Wage distortion adjustment = 

---

x Mandated wage Increase 
 Formula base range (FBR)   
  
    Where : FBR = Actual wage rate (AWR) + Agreed amount of adjustment 
 

5. Jimenez, Ofreneo, Delas Alas Jr. (JODA) Formula

  Wb - Wa   
 Wage distortion adjustment = 

---

 2   

       New Daily wage rate = wage distortion adjustment + Wc 
       
       Where: Wa = old daily minimum wage
                   Wb = daily wage of employee (where Wb > Wa, or Wb is above Wa)
                   Wc = new daily minimum wage
                         = Wa + mandated wage increase 
 

6. Wirerope Formula

Wage distortion adjustment = Existing minimum wage

---

Present wage of employee x (Mandated wage Increase - Creditable Increase)

7. Bagtas Approach Wage distortion adjustment = Mandated Wage Increase

---

Existing Minimum Wage

x Present wage of employee

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Coverage of Wage Orders and Exemption

Who are covered by wage orders issued by the boards?

    Wage Orders issued by the Boards cover only private sector workers, except for household helpers and persons in the personal employ of another, including family drivers.

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Who are exemted from Wage Orders issued by the boards?

    Per the Rules on Exemption, the following categories of establishments may be exempted upon application with and as determined by the Board:

distressed establishments new business enterprises retail/service establishments employing not more than 10 workers establishments adversely affected by natural calamities

    The Boards may also exempt establishments other than those enumerated above only if they are in accord with the rationale for exemption stated in the Rules on Exemption and upon strong justifiable reasons.

---

What are the criteria and requirements to qualify for exemption?

    Sections 3 and 4 of the Rules on Exemption list down the specific criteria and requirements to qualify for exemption, namely:

Distressed Establishments

a. For Stock Corporations/Cooperatives

registers a deficit of 20% or more of the paid up capital as of last accounting period and interim period immediately preceding the effectivity of the Wage Order.

registers capital deficiency/negative stockholders' equity as of the last full accounting period or interim period immediately preceding the effectivity of the Wage Order.

       b. For Single Proprietorships/Partnerships/Non-stock,Non-profit Organization

registers a deficit of 20% or more of the total invested capital as of the 2 accounting periods and interim period immediately preceding the effectivity of the Wage Order. registers capital deficiency/negative net worth as of the last full accounting period or interim period immediately preceding the effectivity of the Wage Order

       c. For Banks and Quasi-banks

under receivership/liquidation certified by the Bangko Sentral ng Pilipinas under controllership/conservatorship

      New Business Enterprises

NBEs established outside the NCR and outside Export Zones within 2 years from the effectivity of the Wage Order, classified as agricultural establishments or establishments with total assets of 5M and below.

      Retail/Service Establishments Regularly Employing Not More Than Ten Employees

engaged in the ratil sale of goods/services to end users, and employing not more than ten workers

      Establishments Adversely Affected by Natural Calamities

establishments located in an area under a state of calamity occurence of natural calamities in the area within 6 months prior to the effectivity of the Wage Order. losses or damage to properties as a result of the calamity amount to 20% or more of the capital/stockholders' equity

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What kind of exemption can be granted to qualified establishments?

    The Board may grant a -

Full exemption of one year for all categories of establishments Partial exemption equivalent to 50% may be granted in the case of distressed establishments

    Under the present Rules on Exemption, no extension of the exemption period beyond one year is allowed.

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What is the effect of a disapproved application for exemption?

    In case an application for exemption is not approved by the Board, the company shall pay the mandated wage increase/allowance to all covered workers retroactive to the date of effectivity of the Wage Order plus simple interest of 1% per month.

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[edit] REPUBLIC ACT NO. 6727 - Wage Rationalization Act

Republic of the Philippines Congress of the Philippines Metro Manila Second Regular Session

Begun and held in Metro Manila, on Monday, the twenty-fifth day of July, nineteen hundred and eighty-eight

[REPUBLIC ACT NO. 6727] AN ACT TO RATIONALIZE WAGE POLICY DETERMINATION BY ESTABLISHING THE MECHANISM AND PROPER STANDARDS THEREFOR, AMENDING FOR THE PURPOSE ARTICLE 99 OF, AND INCORPORATING ARTICLES 120, 121, 122, 123, 124, 126 AND 127 INTO, PRESIDENTIAL DECREE NO. 442, AS AMENDED, OTHERWISE KNOWN AS THE LABOR CODE OF THE PHILIPPINES, FIXING NEW WAGE RATES, PROVIDING WAGE INCENTIVES FOR INDUSTRIAL DISPERSAL TO THE COUNTRYSIDE, AND FOR OTHER PURPOSES

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:

    Sec. 1. This Act shall be known as the "Wage Rationalization Act."

   Sec. 2. It is hereby declared the policy of the State to rationalize the fixing of minimum wages and to promote productivity-improvement and gain-sharing measures to ensure a decent standard of living for the workers and their families; to guarantee the rights of labor to its just share in the fruits of production; to enhance employment generation in the countryside through industry dispersal; and to allow business and industry reasonable returns on investment, expansion and growth.

   The State shall promote collective bargaining as the primary mode of setting wages and other terms and conditions of employment; and, whenever necessary, the minimum wage rates shall be adjusted in a fair and equitable manner, considering existing regional disparities in the cost of living and other socio-economic factors and the national economic and social development plans.

   Sec. 3. In line with the declared policy under this Act, Article 99 of Presidential Decree No. 442, as amended, is hereby amended and Articles 120, 121, 122, 123, 124, 126 and 127 are hereby incorporated into Presidential Decree No. 442, as amended, to read as follows:

   "Art. 99. Regional Minimum Wages. - The minimum wage rates for agricultural and non-agricultural employees and workers in each and every region of the country shall be those prescribed by the Regional Tripartite Wages and Productivity Boards."

   "Art. 120. Creation of the National Wages and Productivity Commission. - There is hereby created a National Wages and Productivity Commission, hereinafter referred to as the Commission, which shall be attached to the Department of Labor and Employment (DOLE) for policy and program coordination."

   "Art. 121. Powers and Functions of the Commission. - The Commission shall have the following powers and functions:

(a) To act as the national consultative and advisory body to the President of the Philippines and Congress on matters relating to wages, incomes and productivity;

(b) To formulate policies and guidelines on wages, incomes and productivity improvement at the enterprise, industry and national levels;

(c) To prescribe rules and guidelines for the determination of appropriate minimum wage and productivity measures at the regional, provincial or industry levels;

(d) To review regional wage levels set by the Regional Tripartite Wages and Productivity Boards to determine if these are in accordance with prescribed guidelines and national development plans;

(e) To undertake studies, researches and surveys necessary for the attainment of its functions and objectives, and to collect and compile data and periodically disseminate information on wages and productivity and other related information, including, but not limited to, employment, cost-of-living, labor costs, investments and returns;

(f) To review plans and programs of the Regional Tripartite Wages and Productivity Boards to determine whether these are consistent with national development plans;

(g) To exercise technical and administrative supervision over the Regional Tripartite Wages and Productivity Boards;

(h) To call, from time to time, a national tripartite conference of representatives of government, workers and employers for the consideration of measures to promote wage rationalization and productivity; and

(i) To exercise such powers and functions as may be necessary to implement this Act.

   "The Commission shall be composed of the Secretary of Labor and Employment as ex-officio chairman, the Director-General of the National Economic and Development Authority (NEDA) as ex-officio vice-chairman, and two (2) members each from workers and employers sectors who shall be appointed by the President of the Philippines upon recommendation of the Secretary of Labor and Employment to be made on the basis of the list of nominees submitted by the workers and employers sectors, respectively, and who shall serve for a term of five (5) years. The Executive Director of the Commission Secretariat shall also be a member of the Commission."

   "The Commission shall be assisted by a Secretariat to be headed by an Executive Director and two (2) Deputy Directors, who shall be appointed by the President of the Philippines, upon recommendation of the Secretary of Labor and Employment."

   "The Executive Director shall have the same rank, salary, benefits and other emoluments as that of a Department Assistant Secretary, while the Deputy Directors shall have the same rank, salary, benefits and other emoluments as that of a Bureau Director. The members of the Commission representing labor and management shall have the same rank, emoluments, allowances and other benefits as those prescribed by law for labor and management representatives in the Employees' Compensation Commission."

   "Art. 122. Creation of Regional Tripartite Wages and Productivity Boards. - There is hereby created Regional Tripartite Wages and Productivity Boards, hereinafter referred to as Regional Boards, in all regions, including autonomous regions as may be established by law. The Commission shall determine the offices/headquarters of the respective Regional Boards.

   "The Regional Boards shall have the following powers and functions in their respective territorial jurisdiction:

(a) To develop plans, programs and projects relative to wages, incomes and productivity improvement for their respective regions;

(b) To determine and fix minimum wage rates applicable in their region, provinces or industries therein and to issue the corresponding wage orders, subject to guidelines issued by the Commission;

(c) To undertake studies, researches, and surveys necessary for the attainment of their functions, objectives and programs, and to collect and compile data on wages, incomes, productivity and other related information and periodically disseminate the same;

(d) To coordinate with the other Regional Boards as may be necessary to attain the policy and intention of this Code;

(e) To receive, process and act on applications for exemption from prescribed wage rates as may be provided by law or any Wage Order; and

(f) To exercise such other powers and functions as may be necessary to carry out their mandate under this Code.

   "Implementation of the plans, programs and projects of the Regional Boards referred to in the second paragraph, letter (a) of this Article, shall be through the respective regional offices of the Department of Labor and Employment within their territorial jurisdiction; Provided, however, That the Regional Boards shall have technical supervision over the regional office of the Department of Labor and Employment with respect to the implementation of said plans, programs and projects.

   "Each Regional Board shall be composed of the Regional Director of the Department of Labor and Employment as chairman, the Regional Directors of the National Economic and Development Authority and Department of Trade and Industry as vice-chairmen and two (2) members each from workers and employers sectors who shall be appointed by the President of the Philippines, upon recommendation of the Secretary of Labor and Employment, to be made on the basis of the list of nominees submitted by the workers and employers sectors, respectively, and who shall serve for a term of five (5) years.

"Each Regional Board to be headed by its chairman shall be assisted by a Secretariat."

   "Art. 123. Wage Order. - Whenever conditions in the region so warrant, the Regional Board shall investigate and study all pertinent facts; and, based on the standards and criteria herein prescribed, shall proceed to determine whether a Wage Order should be issued.

   Any such Wage Order shall take effect after fifteen (15) days from its complete publication in at least one (l) newspaper of general circulation in the region.

   "In the performance of its wage-determining functions, the Regional Board shall conduct public hearings/consultations, giving notices to employees' and employers' groups, provincial, city and municipal officials and other interested parties.

   "Any party aggrieved by the Wage Order issued by the Regional Board may appeal such order to the Commission within ten (l0) calendar days from the publication of such order. It shall be mandatory for the Commission to decide such appeal within sixty (60) calendar days from the filing thereof.

   "The filing of the appeal does not operate to stay the order unless the person appealing such order shall file with the Commission an undertaking with a surety or sureties satisfactory to the Commission for the payment to the employees affected by the order of the corresponding increase, in the event such order is affirmed."

   "Art. 124. Standards/Criteria for Minimum Wage Fixing. The regional minimum wages to be established by the Regional Board shall be as nearly adequate as is economically feasible to maintain the minimum standards of living necessary for the health, efficiency and general well-being of the employees within the framework of the national economic and social development program. In the determination of such regional minimum wages, the Regional Board shall, among other relevant factors, consider the following:

(a) The demand for living wages;

(b) Wage adjustment vis-à-vis the consumer price index;

(c) The cost of living and changes or increases therein;

(d) The needs of workers and their families;

(e) The need to induce industries to invest in the countryside;

(f) Improvements in standards of living;

(g) The prevailing wage levels;

(h) Fair return of the capital invested and capacity to pay of employers;

(i) Effects on employment generation and family income; and

(j) The equitable distribution of income and wealth along the imperatives of economic and social development.

   "The wages prescribed in accordance with the provisions of this Title shall be the standard prevailing minimum wages in every region. These wages shall include wages varying with industries, provinces or localities if in the judgment of the Regional Board conditions make such local differentiation proper and necessary to effectuate the purpose of this Title.

   "Any person, company, corporation, partnership or any other entity engaged in business shall file and register annually with the appropriate Regional Board, Commission and the National Statistics Office an itemized listing of their labor component, specifying the names of their workers and employees below the managerial level, including learners, apprentices and disabled/handicapped workers who were hired under the terms prescribed in the employment contracts, and their corresponding salaries and wages.

   "Where the application of any prescribed wage increase by virtue of a law or Wage Order issued by any Regional Board results in distortions of the wage structure within an establishment, the employer and the union shall negotiate to correct the distortions. Any dispute arising from wage distortions shall be resolved through the grievance procedure under their collective bargaining agreement and, if it remains unresolved, through voluntary arbitration. Unless otherwise agreed by the parties in writing, such dispute shall be decided by the voluntary arbitrator or panel of voluntary arbitrators within ten (10) calendar days from the time said dispute was referred to voluntary arbitration.

   "In cases where there are no collective agreements or recognized labor unions, the employers and workers shall endeavor to correct such distortions. Any dispute arising therefrom shall be settled through the National Conciliation and Mediation Board and, if it remains unresolved after ten (10) calendar days of conciliation, shall be referred to the appropriate branch of the National Labor Relations Commission (NLRC). It shall be mandatory for the NLRC to conduct continuous hearings and decide the dispute within twenty (20) calendar days from the time said dispute is submitted for compulsory arbitration.

   "The pendency of a dispute arising from a wage distortion shall not in any way delay the applicability of any increase in prescribed wage rates pursuant to the provisions of law or Wage Order.

   "As used, herein, a wage distortion shall mean a situation where an increase in prescribed wage rates results in the elimination or severe contraction of intentional quantitative differences in wage or salary rates between and among employee groups in an establishment as to effectively obliterate the distinctions embodied in such wage structure based on skills, length of service, or other logical bases of differentiation.

   "All workers paid by result, including those who are paid on piecework, takay, pakyaw or task basis, shall receive not less than the prescribed wage rates per eight (8) hours work a day, or a proportion thereof for working less than eight (8) hours.

   "All recognized learnership and apprenticeship agreements shall be considered automatically modified insofar as their wage clauses are concerned to reflect the prescribed wage rates."

   "Art. 126. Prohibition Against Injunction. - No preliminary or permanent injunction or temporary restraining order may be issued by any court, tribunal or other entity against any proceedings before the Commission or the Regional Boards."

   "Art. 127. Non-Diminution of Benefits. - No Wage Order issued by any Regional Board shall provide for wage rates lower than the statutory minimum wage rates prescribed by Congress."

   Sec. 4. (a) Upon the effectivity of this Act, the statutory minimum wage rates of all workers and employees in the private sector, whether agricultural or non-agricultural, shall be increased by twenty-five pesos (P25.00) per day, except that workers and employees in plantation agricultural enterprises outside of the National Capital Region (NCR) with an annual gross sales of less than five million pesos (P5,000,000.00) in the preceding year shall be paid an increase of twenty pesos (P20.00), and except further that workers and employees of cottage/handicraft industries, non-plantation agricultural enterprises, retail/service establishments regularly employing not more than ten (10) workers, and business enterprises with a capitalization of not more than five hundred thousand pesos (P500,000.00) and employing not more than twenty (20) employees, which are located or operating outside the NCR, shall be paid only an increase of fifteen pesos (P15.00): Provided, That those already receiving above the minimum wage rates up to one hundred pesos (P100.00) shall also receive an increase of twenty-five pesos (P25.00) per day, and except that the workers and employees mentioned in the first exception clause of this section shall also be paid only an increase of twenty-pesos (P20.00), and except further that those employees enumerated in the second exception clause of this Section shall also be paid only an increase of fifteen pesos (P15.00): Provide, further, That the appropriate Regional Board is hereby authorized to grant additional increases to the workers and employees mentioned in the exception clauses of this Section if, on the basis of its determination pursuant to Article 124 of the Labor Code such increases are necessary.

   (b) The increase of twenty-five pesos (P25.00) prescribed under this Section shall apply to all workers and employees entitled to the same in private educational institutions as soon as they have increased or are granted authority to increase their tuition fees during school year 1989-1990. Otherwise, such increase shall be so applicable not later than the opening of the next school year beginning 1990.

   (c) Exempted from the provisions of this Act are household or domestic helpers and persons employed in the personal service of another, including family drivers.

   Retail/service establishments regularly employing not more than ten (10) workers may be exempted from the applicability of this Act upon application with and as determined by the appropriate Regional Board in accordance with the applicable rules and regulations issued by the Commission. Whenever an application for exemption has been duly filed with the appropriate Regional Board, action on any complaint for alleged non-compliance with this Act shall be deferred pending resolution of the application for exemption by the appropriate Regional Board.

   In the event that applications for exemptions are not granted, employees shall receive the appropriate compensation due them as provided for by this Act plus interest of one percent (1%) per month retroactive to the effectivity of this Act.

   (d) If expressly provided for and agreed upon in the collective bargaining agreements, all increases in the daily basic wage rates granted by the employers three (3) months before the effectivity of this Act shall be credited as compliance with the increases in the wage rates prescribed herein, provided that, where such increases are less than the prescribed increases in the wage rates under this Act, the employer shall pay the difference. Such increases shall not include anniversary wage increases, merit wage increases and those resulting from the regularization or promotion of employees.

   Where the application of the increases in the wage rate under this Section results in distortions as defined under existing laws in the wage structure within an establishment and gives rise to a dispute therein, such dispute shall first be settled voluntarily between the parties and in the event of a deadlock, the same shall be finally resolved through compulsory arbitration by the regional arbitration branch of the National Labor Relations Commission (NLRC) having jurisdiction over the workplace.

   It shall be mandatory for the NLRC to conduct continuous hearings and decide any dispute arising under this Section within twenty(20) calendar days from the time said dispute is formally submitted to it for arbitration. The pendency of a dispute arising from a wage distortion shall not in any way delay the applicability of the increases in the wage rates prescribed under this Section.

   Sec. 5. Within a period of four (4) years from the effectivity of this Act and without prejudice to collective bargaining negotiations or agreements or other employment contracts between employers and workers, new business enterprises that may be established outside the NCR and export processing zones whose operation or investments need initial assistance as may be determined by the Department of Labor and Employment in consultation with the Department of Trade and Industry or the Department of Agriculture, as the case may be shall be exempt from the application of this Act for not more than three (3) years from the start of their operations: Provided, That such new business enterprises established in Region III (Central Luzon) and Region IV (Southern Tagalog) shall be exempt from such increases only for two (2) years from the start of their operations, except those established in the Provinces of Palawan, Oriental Mindoro, Occidental Mindoro, Marinduque, Romblon, Quezon and Aurora, which shall enjoy such exemption for not more than three (3) years from the start of their operations.

   Sec. 6. In the case of contracts for construction projects and for security, janitorial and similar services, the prescribed increases in the wage rates of the workers shall be borne by the principals or clients of the construction/service contractors and the contract shall be deemed amended accordingly. In the event, however, that the principal or client fails to pay the prescribed wage rates, the construction/service contractor shall be jointly and severally liable with his principal or client.

   Sec. 7. Upon written petition of the majority of the employees or workers concerned, all private establishments, companies, businesses, and other entities with twenty five (25) or more employees and located within one (1) kilometer radius to a commercial, savings or rural bank shall pay the wages and other benefits of their employees through any of said banks and within the period for payment of wages fixed by Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines.

   Sec. 8. Whenever applicable and upon request of a concerned worker or union, the bank shall issue a certification of the record of payment of wages of a particular worker or workers for a particular payroll period.

   Sec. 9. The Department of Labor and Employment shall conduct inspections as often as possible within its manpower constraint of the payroll and other financial records kept by the company or business to determine whether the workers are paid the prescribed wage rates and other benefits granted by law or any Wage Order. In unionized companies, the Department of Labor and Employment inspectors shall always be accompanied by the president or any responsible officer of the recognized bargaining unit of any interested union in the conduct of the inspection. In non-unionized companies, establishments or businesses, the inspection shall be carried out in the presence of a worker representing the workers in the said company. The workers' representative shall have the right to submit his own findings to the Department of Labor and Employment and to testify on the same if he cannot concur with the findings of the labor inspector.

   Sec. 10. The funds necessary to carry out the provisions of this Act shall be taken from the Compensation and Organizational Adjustment Fund, the Contingent Fund, and other savings under Republic Act No. 6688, otherwise known as the General Appropriations Act of 1989, or from any unappropriated funds of the National Treasury: Provided, That the funding requirements necessary to implement this Act shall be included in the annual General Appropriations Act for the succeeding years.

   Sec. 11. The National Wages Council created under Executive Order No. 614 and the National Productivity Commission created under Executive Order No. 615 are hereby abolished. All properties, records, equipment, buildings, facilities, and other assets, liabilities and appropriations of and belonging to the abovementioned offices, as well as other matters pending therein, shall be transferred to the Commission. All personnel of the above abolished offices shall continue to function in a holdover capacity and shall be preferentially considered for appointments to or placement in the Commission.

   Any official or employee separated from the service as a result of the abolition of offices pursuant to this Act shall be entitled to appropriate separation pay and retirement and other benefits accruing to them under existing laws. In lieu thereof, at the option of the employee, he shall be preferentially considered for employment in the government or in any of its subdivisions, instrumentalities, or agencies, including government-owned or controlled corporations and their subsidiaries.

   Sec. 12. Any person, corporation, trust, firm, partnership, association or entity which refuses or fails to pay any of the prescribed increases or adjustments in the wage rates made in accordance with this Act shall be punished by a fine not exceeding twenty-five thousand pesos (P25,000.00) and/or imprisonment of not less than one (1) year nor more than two (2) years: Provided, That any person convicted under this Act shall not be entitled to the benefits provided for under the Probation Law.

   If the violation is committed by a corporation, trust or firm, partnership, association or any other entity, the penalty of imprisonment shall be imposed upon the entity's responsible officers, including, but not limited to, the president, vice president, chief executive officer, general manager, managing director or partner.

   Sec. 13. The Secretary of Labor and Employment shall promulgate the necessary rules and regulations to implement the provisions of this Act.

   Sec. 14. All laws, orders, issuances, rules and regulations or parts thereof inconsistent with the provisions of this Act are hereby repealed, amended or modified accordingly. In any provision or part of this Act, or the application thereof to any person or circumstance, is held invalid or unconstitutional, the remainder of this Act or the application of such provision or part thereof to other persons or circumstances shall not be affected thereby.

   Nothing in this Act shall be construed to reduce any existing wage rates, allowances and benefits of any form under existing laws, decrees, issuances, executive orders, and/or under any contract or agreement between the workers and employers.

   Sec. 15. This Act shall take effect fifteen (15) days after its complete publication in the Official Gazette or in at least two (2) national newspapers of general circulation, whichever comes earlier.

Approved,

(SGD) RAMON V. MITRA (SGD) JOVITO R. SALONGA Speaker of the House of Representatives President of the Senate

This Act which is a consolidation of Senate Bill No. 1084 and House Bill No. 23227 was finally passed by both the Senate and the House of Representatives on June 5, 1989.

SGD) QUIRINO D. ABAD SANTOS, JR (SGD) EDWIN P. ACOBA Secretary of the House of Representatives Secretary of the Senate

Approved: June 9, 1989 (SGD) CORAZON C. AQUINO

                                  President of the Philippines
 

© 2008 National Wages and Productivity Commission.

[edit] STANDARD CHARTERED BANK EMPLOYEES UNION (NUBE),

SUPREME COURT SECOND DIVISION G.R. No. 114974 June 16, 2004

STANDARD CHARTERED BANK EMPLOYEES UNION (NUBE), Petitioner, -versus- The Honorable MA. NIEVES R. CONFESOR, in her capacity as SECRETARY OF LABOR AND EMPLOYMENT; and the STANDARD CHARTERED BANK, Respondents. x----------------------------------------------------x

D E C I S I O N CALLEJO, SR., J.: This is a Petition for Certiorari under Rule 65 of the Rules of Court filed by the Standard Chartered Bank Employees Union, seeking the nullification of the October 29, 1993 Order[1]of then Secretary of Labor and Employment Nieves R. Confesor and her resolutions dated December 16, 1993 and February 10, 1994. chanroblespublishingcompany

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Page 2 The Antecedents Standard Chartered Bank (the Bank, for brevity) is a foreign banking corporation doing business in the Philippines. The exclusive bargaining agent of the rank and file employees of the Bank is the Standard Chartered Bank Employees Union (the Union, for brevity). In August of 1990, the Bank and the Union signed a five-year collective bargaining agreement (CBA) with a provision to renegotiate the terms thereof on the third year. Prior to the expiration of the three-year period[2]but within the sixty-day freedom period, the Union initiated the negotiations. On February 18, 1993, the Union, through its President, Eddie L. Divinagracia, sent a letter[3]containing its proposals[4]covering political provisions[5]and thirty-four (34) economic provisions.[6]Included therein was a list of the names of the members of the Union’s negotiating panel.[7]chanroblespublishingcompanyIn a Letter dated February 24, 1993, the Bank, through its Country Manager Peter H. Harris, took note of the Union’s proposals. The Bank attached its counter-proposal to the non-economic provisions proposed by the Union.[8]The Bank posited that it would be in a better position to present its counter-proposals on the economic items after the Union had presented its justifications for the economic proposals.[9]The Bank, likewise, listed the members of its negotiating panel.[10]The parties agreed to set meetings to settle their differences on the proposed CBA. Before the commencement of the negotiation, the Union, through Divinagracia, suggested to the Bank’s Human Resource Manager and head of the negotiating panel, Cielito Diokno, that the bank lawyers should be excluded from the negotiating team. The Bank acceded.[11]Meanwhile, Diokno suggested to Divinagracia that Jose P. Umali, Jr., the President of the National Union of Bank Employees (NUBE), the federation to which the Union was affiliated, be excluded from the Union’s negotiating panel.[12]However, Umali was retained as a member thereof. chanroblespublishingcompanyOn March 12, 1993, the parties met and set the ground rules for the negotiation. Diokno suggested that the negotiation be kept a “family affair.” The proposed non-economic provisions of the CBA were

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Page 3 discussed first.[13]Even during the final reading of the non-economic provisions on May 4, 1993, there were still provisions on which the Union and the Bank could not agree. Temporarily, the notation “DEFERRED” was placed therein. Towards the end of the meeting, the Union manifested that the same should be changed to “DEADLOCKED” to indicate that such items remained unresolved. Both parties agreed toplace the notation “DEFERRED/DEADLOCKED.”[14]chanroblespublishingcompanyOn May 18, 1993, the negotiation for economic provisions commenced. A presentation of the basis of the Union’s economic proposals was made. The next meeting, the Bank made a similar presentation. Towards the end of the Bank’s presentation, Umali requested the Bank to validate the Union’s “guestimates,” especially the figures for the rank and file staff.[15]In the succeeding meetings, Umali chided the Bank for the insufficiency of its counter-proposal on the provisions on salary increase, group hospitalization, death assistance and dental benefits. He reminded the Bank, how the Union got what it wanted in 1987, and stated that if need be, the Union would go through the same route to get what it wanted.[16]chanroblespublishingcompanyUpon the Bank’s insistence, the parties agreed to tackle the economic package item by item. Upon the Union’s suggestion, the Bank indicated which provisions it would accept, reject, retain and agree to discuss.[17]The Bank suggested that the Union prioritize its economic proposals, considering that many of such economic provisions remained unresolved. The Union, however, demanded that the Bank make a revised itemized proposal. chanroblespublishingcompanyIn the succeeding meetings, the Union made the following proposals: Wage Increase: 1stYear – Reduced from 45% to 40% 2ndYear - Retain at 20% Total = 60%

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Page 4 Group Hospitalization Insurance: Maximum disability benefit reduced from P75,000.00 to P60,000.00 per illness annually. Death Assistance: For the employee -- Reduced from P50,000.00 to P45,000.00 chanroblespublishingcompanyFor Immediate Family Member -- Reduced from P30,000.00 to P25,000.00 Dental and all others -- No change from the original demand.[18]In the morning of the June 15, 1993 meeting, the Union suggested that if the Bank would not make the necessary revisions on its counter-proposal, it would be best to seek a third party assistance.[19]After the break, the Bank presented its revised counter-proposal[20]as follows: Wage Increase: 1stYear – from P1,000 to P1,050.00 2ndYear – P800.00 – no change Group Hospitalization Insurance From : P35,000.00 per illness To : P35,000.00 per illness per year Death Assistance – For employee From: P20,000.00 To : P25,000.00 Dental Retainer – Original offer remains the same.[21]

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Page 5 The Union, for its part, made the following counter-proposal: Wage Increase: 1stYear - 40% 2ndYear - 19.5% Group Hospitalization Insurance From : P60,000.00 per year To : P50,000.00 per year Dental: Temporary Filling/ – P 150.00 Tooth Extraction Permanent Filling – 200.00 Prophylaxis– 250.00 Root Canal – From P2,000 per tooth To: 1,800.00 per tooth Death Assistance: For Employees: From P45,000.00 to P40,000.00 For Immediate Family Member: From P25,000.00 to P20,000.00.[22]chanroblespublishingcompanyThe Union’s original proposals, aside from the above-quoted, remained the same. Another set of counter-offer followed: ManagementUnionWage Increase 1stYear – P1,050.00 40% 2ndYear - 850.00 19.0%[23]

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Page 6 Diokno stated that, in order for the Bank to make a better offer, the Union should clearly identify what it wanted to be included in the total economic package. Umali replied that it was impossible to do so because the Bank’s counter-proposal was unacceptable. He furthered asserted that it would have been easier to bargain if the atmosphere was the same as before, where both panels trusted each other. Diokno requested the Union panel to refrain from involving personalities and to instead focus on the negotiations.[24]He suggested that in order to break the impasse, the Union should prioritize the items it wanted to iron out. Divinagracia stated that the Bank should make the first move and make a list of items it wanted tobe included in the economic package. Except for the provisions on signing bonus and uniforms, the Union and the Bank failed to agree on the remaining economic provisions of the CBA. The Union declared a deadlock[25]and filed a Notice of Strike before the National Conciliation and Mediation Board (NCMB) on June 21, 1993, docketed as NCMB-NCR-NS-06-380-93.[26]chanroblespublishingcompanyOn the other hand, the Bank filed a complaint for Unfair Labor Practice (ULP) and Damages before the Arbitration Branch of the National Labor Relations Commission (NLRC) in Manila, docketed as NLRC Case No. 00-06-04191-93 against the Union on June 28, 1993. The Bank alleged that the Union violated its duty to bargain, as it did not bargain in good faith. It contended that the Union demanded “sky high economic demands,” indicative of blue-sky bargaining.[27]Further, the Union violated its no strike- no lockout clause by filing a notice of strike before the NCMB. Considering that the filing of notice of strike was an illegal act, the Union officers should be dismissed. Finally, the Bank alleged that as a consequence of the illegal act, the Bank suffered nominal and actual damages and was forced to litigate and hire the services of the lawyer.[28]chanroblespublishingcompanyOn July 21, 1993, then Secretary of Labor and Employment (SOLE) Nieves R. Confesor, pursuant to Article 263(g) of the Labor Code, issued an Order assuming jurisdiction over the labor dispute at the Bank. The complaint for ULP filed by the Bank before the NLRC was consolidated with the complaint over which the SOLE assumed jurisdiction. After the parties submitted their respective position papers, the SOLE issued an Order on October 29, 1993, the dispositive portion of which is herein quoted: chanroblespublishingcompany

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Page 7 WHEREFORE, the Standard Chartered Bank and the Standard Chartered Bank Employees Union – NUBE are hereby ordered to execute a collective bargaining agreement incorporating the dispositions contained herein. The CBA shall be retroactive to 01 April 1993 and shall remain effective for two years thereafter, or until such time as a new CBA has superseded it. All provisions in the expired CBA not expressly modified or not passed upon herein are deemed retained while all new provisions which are being demanded by either party are deemed denied, but without prejudice to such agreements as the parties may have arrived at in the meantime. chanroblespublishingcompanyThe Bank’s charge for unfair labor practice which it originally filed with the NLRC as NLRC-NCR Case No. 00-06-04191-93 but which is deemed consolidated herein, is dismissed for lack of merit. On the other hand, the Union’s charge for unfair labor practice is similarly dismissed. Let a copy of this order be furnished the Labor Arbiter in whose sala NLRC-NCR Case No. 00-06-04191-93 is pending for his guidance and appropriate action.[29]chanroblespublishingcompanyThe SOLE gave the following economic awards: 1. Wage Increase: a) To be incorporated to present salary rates: Fourth year: 7% of basic monthly salary Fifth year : 5% of basic monthly salary based on the 4thyear adjusted salary chanroblespublishingcompanyb) Additional fixed amount: Fourth year: P600.00 per month Fifth year : P400.00 per month 2. Group Insurance a) Hospitalization : P45,000.00

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Page 8 b) Life : P130,000.00 c) Accident : P130,000.00 3. Medicine Allowance Fourth year: P5,500.00 Fifth year : P6,000.00 4. Dental Benefits Provision of dental retainer as proposed by the Bank, but without diminishing existing benefits. chanroblespublishingcompany5. Optical Allowance Fourth year: P2,000.00 Fifth year : P2,500.00 6. Death Assistance a) Employee : P30,000.00 b) Immediate Family Member : P5,000.00 7. Emergency Leave – Five (5) days for each contingency 8. Loans a) Car Loan : P200,000.00 b) Housing Loan : It cannot be denied that the costs attendant to having one’s own home have tremendously gone up. The need, therefore, to improve on this benefit cannot be overemphasized. Thus, the management is urged to increase the existing and allowable housing loan that the Bank extends to its employees to an amount that will give meaning and substance to this CBA benefit.[30]chanroblespublishingcompanyThe SOLE dismissed the charges of ULP of both the Union and the Bank, explaining that both parties failed to substantiate their claims.

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Page 9 Citing National Labor Union vs. Insular-Yebana Tobacco Corporation,[31]the SOLE stated that ULP charges would prosper only if shown to have directly prejudiced the public interest. chanroblespublishingcompanyDissatisfied, the Union filed a motion for reconsideration with clarification, while the Bank filed a motion for reconsideration. On December 16, 1993, the SOLE issued a Resolution denying the motions. The Union filed a second motion for reconsideration, which was, likewise, denied on February 10, 1994. On March 22, 1994, the Bank and the Union signed the CBA.[32]Immediately thereafter, the wage increase was effected and the signing bonuses based on the increased wage were distributed to the employees covered by the CBA. The Present Petition On April 28, 1994, the Union filed this petition for certiorari under Rule 65 of the Rules of Procedure alleging as follows: A. RESPONDENT HONORABLE SECRETARY COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN DISMISSING THE UNION’S CHARGE OF UNFAIR LABOR PRACTICE IN VIEW OF THE CLEAR EVIDENCE OF RECORD AND ADMISSIONS PROVING THE UNFAIR LABOR PRACTICES CHARGED.[33]B. RESPONDENT HONORABLE SECRETARY COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN FAILING TO RULE ON OTHER UNFAIR LABOR PRACTICES CHARGED.[34]C. RESPONDENT HONORABLE SECRETARY COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN DISMISSING THE CHARGES OF UNFAIR LABOR PRACTICES ON THE GROUND THAT NO PROOF OF INJURY TO THE PUBLIC INTEREST WASPRESENTED.[35]

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Page 10 The Union alleges that the SOLE acted with grave abuse of discretion amounting to lack or excess of jurisdiction when it found that the Bank did not commit unfair labor practice when it interfered with the Union’s choice of negotiator. It argued that, Diokno’s suggestion that the negotiation be limited as a “family affair” was tantamount to suggesting that Federation President Jose Umali, Jr. be excluded from the Union’s negotiating panel. It further argued that contrary to the ruling of the public respondent, damage or injury to the public interest need not be present in order for unfair labor practice to prosper. chanroblespublishingcompanyThe Union, likewise, pointed out that the public respondent failed to rule on the ULP charges arising from the Bank’s surface bargaining. The Union contended that the Bank merely went through the motions of collective bargaining without the intent to reach an agreement, and made bad faith proposals when it announced that the parties should begin from a clean slate. It argued that the Bank opened the political provisions “up for grabs,” which had the effect of diminishing or obliterating the gains that the Union had made. The Union also accused the Bank of refusing to disclose material and necessary data, even after a request was made by the Union to validate its “guestimates.” chanroblespublishingcompanyIn its Comment, the Bank prayed that the petition be dismissed as the Union was estopped, considering that it signed the Collective Bargaining Agreement (CBA) on April 22, 1994. It asserted that contrary to the Union’s allegations, it was the Union that committed ULP when negotiator Jose Umali, Jr. hurled invectives at the Bank’s head negotiator, Cielito Diokno, and demanded that she be excluded from the Bank’s negotiating team. Moreover, the Union engaged in blue-sky bargaining and isolated the no strike-no lockout clause of the existing CBA. chanroblespublishingcompanyThe Office of the Solicitor General, in representation of the public respondent, prayed that the petition be dismissed. It asserted that the Union failed to prove its ULP charges and that the public respondent did not commit any grave abuse of discretion in issuing the assailed order and resolutions. chanroblespublishingcompany

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Page 11 The Issues The issues presented for resolution are the following: (a) whether or not the Union was able to substantiate its claim of unfair labor practice against the Bank arising from the latter’s alleged “interference” with its choice of negotiator; surface bargaining; making bad faith non-economic proposals; and refusal to furnish the Union with copies of the relevant data; (b) whether or not the public respondent acted with grave abuse of discretion amounting to lack or excess of jurisdiction when she issued the assailed order and resolutions; and, (c) whether or not the petitioner is estopped from filing the instant action. The Court’s Ruling The petition is bereft of merit. “Interference” under Article 248 (a) of the Labor Code The petitioner asserts that the private respondent committed ULP, i.e., interference in the selection of the Union’s negotiating panel, when Cielito Diokno, the Bank’s Human Resource Manager, suggested to the Union’s President Eddie L. Divinagracia that Jose P. Umali, Jr., President of the NUBE, be excluded from the Union’s negotiating panel. In support of its claim, Divinagracia executed an affidavit, stating that prior to the commencement of the negotiation, Diokno approached him and suggested the exclusion of Umali from the Union’s negotiating panel, and that during the first meeting, Diokno stated that the negotiation be kept a “family affair.” chanroblespublishingcompanyCiting the cases of U.S. Postal Service[36]and Harley Davidson Motor Co., Inc., AMF,[37]the Union claims that interference in the choice of the Union’s bargaining panel is tantamount to ULP. chanroblespublishingcompanyIn the aforecited cases, the alleged ULP was based on the employer’s violation of Section 8(a)(1) and (5) of the National Labor Relations Act (NLRA),[38]which pertain to the interference, restraint or coercion of the employer in the employees’ exercise of their rights to self-organization and to bargain collectively through representatives of their own choosing; and the refusal of the employer to bargain

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Page 12 collectively with the employees’ representatives. In both cases, the National Labor Relations Board held that upon the employer’s refusal to engage in negotiations with the Union for collective-bargaining contract when the Union includes a person who is not an employee, or one who is a member or an official of other labor organizations, such employer is engaged in unfair labor practice under Section 8(a)(1) and (5) of the NLRA. chanroblespublishingcompanyThe Union further cited the case of Insular Life Assurance Co., Ltd. Employees Association – NATU vs. Insular Life Assurance Co., Ltd.,[39]wherein this Court said that the test of whether an employer has interfered with and coerced employees in the exercise of their right to self-organization within the meaning of subsection (a)(1) is whether the employer has engaged in conduct which it may reasonably be said, tends to interfere with the free exercise of employees’ rights under Section 3 of the Act.[40]Further, it is not necessary that there be direct evidence that any employee was in fact intimidated or coerced by statements of threats of the employer if there is a reasonable inference that anti-union conduct of the employer does have an adverse effect on self-organization and collective bargaining.[41]chanroblespublishingcompanyUnder the International Labor Organization Convention (ILO) No. 87 FREEDOM OF ASSOCIATION AND PROTECTION OF THE RIGHT TO ORGANIZE to which the Philippines is a signatory, “workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to job organizations of their own choosing without previous authorization.”[42]Workers’ and employers’ organizations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom to organize their administration and activities and to formulate their programs.[43]Article 2 of ILO Convention No. 98 pertaining to the Right to Organize and Collective Bargaining, provides: chanroblespublishingcompanyArticle 2 1. Workers’ and employers’ organizations shall enjoy adequate protection against any acts or interference by each other or

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Page 13 each other’s agents or members in their establishment, functioning or administration. chanroblespublishingcompany2. In particular, acts which are designed to promote the establishment of workers’ organizations under the domination of employers or employers’ organizations or to support workers’ organizations by financial or other means, with the object of placing such organizations under the control of employers or employers’ organizations within the meaning of this Article. The aforcited ILO Conventions are incorporated in our Labor Code, particularly in Article 243 thereof, which provides: ART. 243. COVERAGE AND EMPLOYEES’ RIGHT TO SELF-ORGANIZATION. – All 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. 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. chanroblespublishingcompanyand Articles 248 and 249 respecting ULP of employers and labor organizations. chanroblespublishingcompanyThe said ILO Conventions were ratified on December 29, 1953. However, even as early as the 1935 Constitution,[44]the State had already expressly bestowed protection to labor as part of the general provisions. The 1973 Constitution,[45]on the other hand, declared it as a policy of the state to afford protection to labor, specifying that the workers’ rights to self-organization, collective bargaining, security of tenure, and just and humane conditions of work would be assured. For its part, the 1987 Constitution, aside from making it a policy to “protect the rights of workers and promote their welfare,”[46]devotes an entire section, emphasizing its mandate to afford protection to

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Page 14 labor, and highlights “the principle of shared responsibility” between workers and employers to promote industrial peace.[47]chanroblespublishingcompanyArticle 248(a) of the Labor Code, considers it an unfair labor practice when an employer interferes, restrains or coerces employees in the exercise of their right to self-organization or the right to form association. The right to self-organization necessarily includes the right to collective bargaining. chanroblespublishingcompanyParenthetically, if an employer interferes in the selection of its negotiators or coerces the Union to exclude from its panel of negotiators a representative of the Union, and if it can be inferred that the employer adopted the said act to yield adverse effects on the free exercise to right to self-organization or on the right to collective bargaining of the employees, ULP under Article 248(a) in connection with Article 243 of the Labor Code is committed. chanroblespublishingcompanyIn order to show that the employer committed ULP under the Labor Code, substantial evidence is required to support the claim. Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[48]In the case at bar, the Union bases its claim of interference on the alleged suggestions of Diokno to exclude Umali from the Union’s negotiating panel. chanroblespublishingcompanyThe circumstances that occurred during the negotiation do not show that the suggestion made by Diokno to Divinagracia is an anti-union conduct from which it can be inferred that the Bank consciously adopted such act to yield adverse effects on the free exercise of the right to self-organization and collective bargaining of the employees, especially considering that such was undertaken previous to the commencement of the negotiation and simultaneously with Divinagracia’s suggestion that the bank lawyers be excluded from its negotiating panel. chanroblespublishingcompanyThe records show that after the initiation of the collective bargaining process, with the inclusion of Umali in the Union’s negotiating panel, the negotiations pushed through. The complaint was made only on August 16, 1993 after a deadlock was declared by the Union on June 15, 1993. chanroblespublishingcompany

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Page 15 It is clear that such ULP charge was merely an afterthought. The accusation occurred after the arguments and differences over the economic provisions became heated and the parties had become frustrated. It happened after the parties started to involve personalities. As the public respondent noted, passions may rise, and as a result, suggestions given under less adversarial situations may be colored with unintended meanings.[49]Such is what appears to have happened in this case. The Duty to Bargain Collectively If at all, the suggestion made by Diokno to Divinagracia should be construed as part of the normal relations and innocent communications, which are all part of the friendly relations between the Union and Bank. The Union alleges that the Bank violated its duty to bargain; hence, committed ULP under Article 248(g) when it engaged in surface bargaining. It alleged that the Bank just went through the motions of bargaining without any intent of reaching an agreement, as evident in the Bank’s counter-proposals. It explained that of the 34 economic provisions it made, the Bank only made 6 economic counterproposals. Further, as borne by the minutes of the meetings, the Bank, after indicating the economic provisions it had rejected, accepted, retained or were open for discussion, refused to make a list of items it agreed to include in the economic package. chanroblespublishingcompanySurface bargaining is defined as “going through the motions of negotiating” without any legal intent to reach an agreement.[50]Theresolution of surface bargaining allegations never presents an easy issue. The determination of whether a party has engaged in unlawful surface bargaining is usually a difficult one because it involves, at bottom, a question of the intent of the party in question, and usually such intent can only be inferred from the totality of the challenged party’s conduct both at and away from the bargaining table.[51]It involves the question of whether an employer’s conduct demonstrates an unwillingness to bargain in good faith or is merely hard bargaining.[52]

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Page 16 The minutes of meetings from March 12, 1993 to June 15, 1993 do not show that the Bank had any intention of violating its duty to bargain with the Union. Records show that after the Union sent its proposal to the Bank on February 17, 1993, the latter replied with a list of its counter-proposals on February 24, 1993. Thereafter, meetings were set for the settlement of their differences. The minutes of the meetings show that both the Bank and the Union exchanged economic and non-economic proposals and counter-proposals. The Union has not been able to show that the Bank had done acts, both at and away from the bargaining table, which tend to show that it did not want to reach an agreement with the Union or to settle the differences between it and the Union. Admittedly, the parties were not able to agree and reached a deadlock. However, it is herein emphasized that the duty to bargain “does not compel either party to agree to a proposal or require the making of a concession.”[53]Hence, the parties’ failure to agree did not amount to ULP under Article 248(g) for violation of the duty to bargain. chanroblespublishingcompanyWe can hardly dispute this finding, for it finds support in the evidence. The inference that respondents did not refuse to bargain collectively with the complaining union because they accepted some of the demands while they refused the others even leaving open other demands for future discussion is correct, especially so when those demands were discussed at a meeting called by respondents themselves precisely in view of the letter sent by the union on April 29, 1960.[54]In view of the finding of lack of ULP based on Article 248(g), the accusation that the Bank made bad faith provisions has no leg to stand on. The records show that the Bank’s counter-proposals on the non-economic provisions or political provisions did not put “up for grabs” the entire work of the Union and its predecessors. As can be gleaned from the Bank’s counter-proposal, there were many provisions which it proposed to be retained. The revisions on the other provisions were made after the parties had come to an agreement. Far from buttressing the Union’s claim that the Bank made bad-faith proposals on the non-economic provisions, all these, on the contrary, disprove such allegations. chanroblespublishingcompany

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Page 17 We, likewise, find that the Union failed to substantiate its claim that the Bank refused to furnish the information it needed. chanroblespublishingcompanyWhile the refusal to furnish requested information is in itself an unfair labor practice, and also supports the inference of surface bargaining,[55]in the case at bar, Umali, in a meeting dated May 18, 1993, requested the Bank to validate its guestimates on the data of the rank and file. However, Umali failed to put his request in writing as provided for in Article 242(c) of the Labor Code: Article 242. Rights of Legitimate Labor Organization. (c) To be furnished by the employer, upon written request, with the annual audited financial statements, including the balance sheet and the profit and loss statement, within thirty (30) calendar days from the date of receipt of the request, after the union has been duly recognized by the employer or certified as the sole and exclusive bargaining representatives of the employees in the bargaining unit, or within sixty (60) calendar days before the expiration of the existing collective bargaining agreement, or during the collective negotiation; The Union, did not, as the Labor Code requires, send a written request for the issuance of a copy of the data about the Bank’s rank and file employees. Moreover, as alleged by the Union, the fact that the Bank made use of the aforesaid guestimates, amounts to a validation of the data it had used in its presentation. chanroblespublishingcompanyNo Grave Abuse of Discretion On the Part of the Public Respondent The special civil action for certiorari may be availed of when the tribunal, board, or officer exercising judicial or quasi-judicial functions has acted without or in excess of jurisdiction and there is no appeal or any plain, speedy, and adequate remedy in the ordinary course of law for the purpose of annulling the proceeding.[56]Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility which must be so patent and gross as to amount to

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Page 18 an invasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. Mere abuse of discretion is not enough.[57]chanroblespublishingcompanyWhile it is true that a showing of prejudice to public interest is not a requisite for ULP charges to prosper, it cannot be said that the public respondent acted in capricious and whimsical exercise of judgment, equivalent to lack of jurisdiction or excess thereof. Neither was it shown that the public respondent exercised its power in an arbitrary and despotic manner by reason of passion or personal hostility. chanroblespublishingcompanyEstoppel not Applicable In the Case at Bar The respondent Bank argues that the petitioner is estopped from raising the issue of ULP when it signed the new CBA. chanroblespublishingcompanyArticle 1431 of the Civil Code provides: Through estoppel an admission or representation is rendered conclusive upon the person making it, and cannot be denied or disproved as against the person relying thereon. A person, who by his deed or conduct has induced another to act in a particular manner, is barred from adopting an inconsistent position, attitude or course of conduct that thereby causes loss or injury to another.[58]chanroblespublishingcompanyIn the case, however, the approval of the CBA and the release of signing bonus do not necessarily mean that the Union waived its ULP claim against the Bank during the past negotiations. After all, the conclusion of the CBA was included in the order of the SOLE, while the signing bonus was included in the CBA itself. Moreover, the Union twice filed a motion for reconsideration respecting its ULP charges against the Bank before the SOLE. chanroblespublishingcompanyThe Union Did Not Engage In Blue-Sky Bargaining We, likewise, do not agree that the Union is guilty of ULP for engaging in blue-sky bargaining or making exaggerated or unreasonable proposals.[59]The Bank failed to show that the

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Page 19 economic demands made by the Union were exaggerated or unreasonable. The minutes of the meeting show that the Union based its economic proposals on data of rank and file employees and the prevailing economic benefits received by bank employees from other foreign banks doing business in the Philippines and other branches of the Bank in the Asian region. chanroblespublishingcompanyIn sum, we find that the public respondent did not act with grave abuse of discretion amounting to lack or excess of jurisdiction when it issued the questioned order and resolutions. While the approval of the CBA and the release of the signing bonus did not estop the Union from pursuing its claims of ULP against the Bank, we find that the latter did not engage in ULP. We, likewise, hold that the Union is not guilty of ULP. chanroblespublishingcompanyIN LIGHT OF THE FOREGOING, the October 29, 1993 Order and December 16, 1993 and February 10, 1994 Resolutions of then Secretary of Labor Nieves R. Confesor are AFFIRMED. The Petition is hereby DISMISSED. chanroblespublishingcompanySO ORDERED. Puno, J., (Chairman), Quisumbing, Austria-Martinez, and Tinga, JJ., concur. chanroblespublishingcompanychanroblespublishingcompany[1] Rollo, pp. 451-464. [2] The expiration of the CBA is on March 31, 1993. [3] Rollo, pp. 120-121. chanroblespublishingcompany[4] Id. at 122-141. chanroblespublishingcompany[5] Sometimes referred to as non-economic provisions. [6] Uniforms, signing bonus, wages, group insurance, medicine allowance, dental benefits, optical allowance, death assistance, additional ½ month in midyear allowance, additional 2.5% in the teller’s guarantee fund; profit-sharing provision, improvements in leave benefits, i.e., maternity, vacation, sick, emergency and union leave; introduction of paternity leave, marriage leave, birthday leave and loyalty leave; extension of the enjoyment of salary increments from 35 to 40 years of service; provision for meal and shift allowances; increase in overtime, weekend, holiday and shift allowances; increase emergency premiums, increase in availments of housing corresponding lowering of interest rates and eligibility requirements, and

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Page 20 deletion of the current rules on availment; improvement of gratuities to a maximum of 175% and increase of medical benefits (Rollo, p. 142). [7] Eddie L. Divinagracia, Rogelio Fernando, Nancy G. Sagum, Rebecca Gabay, Ray Michael Quimpo, Reyel G. Vargas, Cipriano Garcia, Alberto Diaz, Ed De Mesa and Jose P. Umali, Jr. chanroblespublishingcompany[8] The Bank’s counter-proposal centered on union recognition and scope (appropriate bargaining agreement), union security and check-off (maintenance of membership), new employees, collection of union dues, job security, hiring of next of kin, temporary personnel, redundancies, closure and relocation, management prerogative, uniforms and grievance procedures. With respect to the counter-proposals on all economic provisions, the Bank said that it is open for discussion. (Rollo, p. 144). [9] Rollo, p. 142. chanroblespublishingcompany[10] Pinky Diokno (sometimes referred to as Cielito Diokno), Jose S. Ho, Rene Padlan, Rolando Orbeta, Janet Camarista, Sinforoso Morada and Modesto B. Lim. [11] Rollo, p. 544. [12] Id. at 288. [13] The negotiations for the non-economic provisions were made on March 12, 16, 23, and 30, 1993; April 6, 13, 20, 23 and 28, 1993 and May 4, 1993. [14] The Union defined “DEADLOCKED” as exhaustion of the three readings; Rollo, p. 269. [15] Minutes of the Meeting of June 1, 1993; Rollo, p. 277. [16] Rollo, p. 278. [17] Minutes of the Meeting of June 8, 1993; Rollo, p. 281. [18] Rollo, p. 284. [19] Ibid. [20] Rollo, pp. 284-285. [21] Id. at 285. [22] Id. at 285. [23] Id. [24] Id. [25] Minutes of the Meeting of June 15, 1993; Rollo, p. 286. [26] Rollo, p. 683. [27] Blue-Sky Bargaining is defined as “unrealistic and unreasonable demands in negotiations by either or both labor and management, where neither concedes anything and demands the impossible.” It actually is not collective bargaining at all. (Harold S. Roberts, Robert’s Dictionary of Industrial Relations (Revised Edition, 1971, p. 51); Rollo, p. 671. [28] Rollo, pp. 670-676. [29] Id. at 463-464. [30] Id. at 459-460. [31] 2 SCRA 924 (1961). [32] Rollo, pp. 562-611. [33] Id. at 10. [34] Id. at 23. [35] Id. at 24.

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Page 21 [36] 280 NLRB No. 80 280 NLRB No. 8 [37] 214 NLRB No. 062. [38] Section 8.a . It shall be unfair labor practice for an employer- (1)To interfere with, restrain or coerce employees in the exercise of their rights guaranteed under Section 7; … (5) To refuse to bargain collectively with the representatives of his employees, subject to the provisions of Section 9. (National Labor Management Act) Section 7. Employees shall have the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing; and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extant that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3.) [39] 37 SCRA 244 (1971). chanroblespublishingcompany[40] Section 3. Employees’ Right to Self-Organization.- Employees shall have the right to self-organization and to form, join or assist labor organizations of their own choosing for the purpose of collective bargaining through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining and other mutual aid or protection. Individuals employed as supervisors shall not be eligible for membership in a labor organization of employees under their supervision but may form separate organizations of their own. chanroblespublishingcompany… Section 4. Unfair Labor Practices.- (a) It shall be unfair labor practice for an employer: (1) To interfere with, restrain or coerce employees in the exercise of their rights guaranteed in Section three; (Republic Act No. 875) [41] Referring to Section 3 and 4(a)(1) of the Industrial Peace Act, Republic Act No. 875. chanroblespublishingcompany[42] Article 2, ILO Convention No. 87. [43] Article 3, ILO Convention No. 87. [44] Section 6, Article XIV of the 1935 Constitution provides: Sec. 6. The State shall afford protection to labor, especially to working women and minors, and shall regulate the relations between landowner and tenant, and between labor and capital in industry and in agriculture. The State may provide for compulsory arbitration. chanroblespublishingcompany[45] Section 9, Article II of the 1973 Constitution provides: Sec. 9. The State shall afford protection to labor, promote full employment and equality in employment, ensure equal work opportunities regardless of sex, race, or creed, and regulate the relations between workers and employers. The State shall assure the rights of workers to self-organization, collective bargaining, security of tenure, and just and humane conditions of work. The State may provide for compulsory arbitration.

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Page 22 [46] Section 18, Article II of the 1987 Constitution provides: Sec. 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare. chanroblespublishingcompany[47] Section 3, Article XIII on Social Justice and Human Rights reads as follows: LABOR Sec. 3. The State shall afford full protection to labor, local and overseas, organized and unorganized and unorganized, and promote full employment and equality of employment opportunities for all. chanroblespublishingcompanyIt shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. chanroblespublishingcompanyThe State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. chanroblespublishingcompanyThe State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable return on investments, and to expansion and growth. [48] Rubberworld (Phils.), Inc. vs. NLRC, 175 SCRA 450 (1989). [49] Rollo, p. 462. chanroblespublishingcompany[50] K-Mart Corporation vs. National Labor Relations Board, 626 F.2d 704 (1980). chanroblespublishingcompany[51] Luck Limousine, 312 NLRB 770, 789 (1993). [52] Queen Mary Restaurants Corp. and Q.M. Foods, Inc. vs. National Labor Relations Board, 560 F.2d 403 (1977). [53] Eastern Maine Medical Center vs. National Labor Relations Board, 658 F.2d 1 (1981). chanroblespublishingcompany[54] National Union of Restaurant Workers (PTUC) vs. Court of Industrial Relations, 10 SCRA 843 (1964). chanroblespublishingcompany[55] K-Mart Corporation vs. NLRB, supra. [56] Guerrero vs. Commission on Elections, 336 SCRA 458 (2000). [57] Santos vs. Commission on Elections, 399 SCRA 611 (2003). chanroblespublishingcompany[58] Navarro vs. Second Laguna Development Bank, 398 SCRA 227 (2003). [59] Arthur A. Sloane and Fred Witney, Labor Relations, 7th Edition 1991, p. 195.

[edit] Call Center Labor Union a First in Business - Standard Chartered Bank

In this BPO Corner: Call Center Labor Union a First in Business Standard Chartered Bank’s Move Cited By Rommer M. Balaba

If there is one thing unique that Standard Chartered Bank can boast of to the business community, it is labor and management’s breakthrough to include call center agents in the collective bargaining agreement (CBA).

The inclusion of call center agents as members of organized labor has been unheard of, even in the Mecca of call centers, India, apparently due to the transient nature of their job.

“There was no one who could organize unions among call centers primarily because of the nature of the industry, and secondly because these employees were supposedly at the high-end, meaning snobbish, and thus could not be formed into unions,” Rene Ofreneo, director of the University of the Philippines-School of Labor and Industrial Relations, said in an interview with Business World.

Mr. Ofreneo is undertaking initial studies on the case of Standard Chartered’s call center agents’ membership in the union, and its possible implication on the call center industry.

“It was not that difficult to include call center agents in the bargaining unit because prior to the new CBA, there was a clause that stated that employees that become permanent automatically were covered by the union. Our call center agents usually become regular employees after at least three months, but not more than six months,” Eddie L. Divinagracia, president of the Standard Chartered Employees Union, told Business World.

“They have different terms and conditions of work, which makes it more important for them to be organized.”

The bank management was apparently receptive to the idea since it gave mutual protection and instituted mechanisms to address the call center agents’ work-related concerns and issues, Mr. Divinagracia said.

Bank officials did not give any statement when asked to comment on the issue.

A quarter of the union’s 300 members comprise call center agents, excluding collection agents, who also form the call center services. Standard Chartered started employing them in the mid-1990s. The collection agents comprise another 25 percent, or a combined total half of the union’s membership.

Mr. Ofreneo, an expert on labor and labor-related issues, noted that there have been past attempts to organize call center agents into unions, but all failed.

“The Trade Union Congress of the Philippines (TUCP) even established a call center academy,” he said. TUCP is the country’s largest umbrella organization of labor federations.

“With their union membership [in the bank], call center agents can get better benefits … and in case they decide to transfer to other call center firms, can ask for competitive salary packages because [of the pay and benefits that] they are getting at Standard Chartered,” Mr. Divinagracia said.

Mr. Ofreneo said Standard Chartered’s example may stem the transient nature of call center agents—at least for the banking system.

“I hope with their inclusion into the union, call center agents would reconsider before transferring to other jobs since being union members offers them some form of protection. They now have a forum to resolve issues like the quota on calls, get psychological support on work-related issues [like being bad-mouthed by clients, receiving crank calls],” he added.

He said this would also remove the notion that it is difficult to organize call center agents into unions, and would address the high turnover rate of call center agents in light of a company’s investment on recruitment and training.

This article was originally published in Business World. Reprinted with permission.

[edit] Call centers: boon or bane (2)

Call centers: boon or bane (2) Posted by editors under workers , youth , employment

BAGUIO CITY (December 16) — Despite the outward glamor and fairly high salaries of working in call centers — things that are valued by many college-level youth nowadays — some painful trade-offs remain obvious, most of all to the call-center employees themselves.

Here are some of the more direct concerns and problems that have arisen from the phenomenal growth of call centers.

1. Night work for women workers

The Labor Code (Article 130) prohibits women to work in night shifts, since night workers are exposed to more work-related problems than daytime workers.

Among these problems, where women are somewhat at a disadvantage, are the following: greater risks and difficulties in commuting at night or in the wee hours of dawn; adverse effects on the body of recurring changes in sleeping and meal hours; and limited interaction with the family and social circles.

The problem is that the peak need for call center workers (CCW) in the Philippines are at night, which corresponds to workday hours in Western countries where most client calls originate. Thus, women CCW’s have had to be exempted from the coverage of the law, just like female hospital and media workers.

Among Convergys employees, for example, 70% were on night shift because the company followed Eastern Standard Time. Convergys says it implemented some measures to minimize such problems.

• For working in night shifts, employees were paid differential pay at 20% of the hourly rate, on top of the basic salary.

• Shifts were changed every three months, presumably to give ample time for employees to readjust their biological clocks to their new schedules.

• Pregnant employees were exempted from the night shifts.

• The company held a quarterly “Family Day” where employees brought their family members to the workplace “to appreciate the job.”

To ensure the commuting safety of employees, call center firms have adopted various measures, such as: being escorted by security guards up to where they can take a ride; designation of pick-up points; and taxi or shuttle service.

2. Change in lifestyles of call center workers

In another trade-off, working in a call center may be high-paying but maddeningly stressful and monotonous. Working in non-standard hours is stressful enough. More than that, call-center tasks often require repetitive routines of answering questions and working at computers more than seven hours daily. CCW’s are obliged to mask their real emotions and Filipino accents, even in the face of unreasonable demands and insulting remarks by foreign callers.

Call center firms have adopted a few measures to help employees cope with stress. These include office parties, raffles, cheerful work station décor, and gaming rooms and lounges where employees can unwind during breaks and after work.

3. Labor-only contracting

Article 106 of the Labor Code gives employers the freedom to “out-source” (to contract out jobs and services) as a valid business strategy despite the outcry of many labor organizations.

The Code bans (as unfair labor practice) only one type of contracting – illegal “labor only” contracting (ILOC). This is the case if the labor contractor does not have enough capital (tools, equipment, machineries, work premises), and the workers supplied by the contractor are doing tasks that are directly related to the firm’s principal business.

Otherwise, labor-only contracting is legal. If the contractor or subcontractor fails to pay the workers, then the law says that the principal employer shall be liable to the claims of the workers. But what about call centers whose main offices are outside the country? It remains unclear who will pay the workers if the subcontractor is unable to do so.

4. Union organizing difficulties

While the Labor Code guarantees basic union rights for all workers, unions have found it difficult to organize CCW’s. The common reasons given were most CCW’s are “yuppies” (“young professionals”) who work in graveyard shifts and can quickly hop from one firm to another.

A UP SOLAIR study reports, however, that a majority of surveyed CCW’s were interested in joining unions. CCW respondents said they wanted better negotiating positions to compensate for the negative impact of night shifts and intense work pressure on their health. and they encountered heavy work pressure.

Although difficult, union organizing among CCW’s can be done. One such call center agents’ union is that of the Standard Chartered Bank. CCW’s appreciated their membership since their type of work required “different terms and conditions of work.” # Pio Verzola Jr. for NORDIS