Ra 9481 Atty Rene y Soriano Fpm

10/18/201010/18/2010 11

REPUBLIC ACT No. 9481AN ACT STRENGTHENING THE WORKERS CONSTITUTIONAL

RIGHT TO SELF-ORGANIZATION, AMENDING FOR THE

PURPOSE PRESIDENTIAL DECREE NO. 442, AS AMENDED,

OTHERWISE KNOWN AS THE LABOR CODE OF THE

PHILIPPINES

ISSUES AND IMPLICATIONS

RENE Y. SORIANO

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What R. A. 9481 Is All About

Amended pertinent provisions of the Labor Code

as well as introduced new ones governing:

1. Registration of labor organizations

2. Chartering and creation of local chapters

3. Effect of petition for cancellation of union

registration on petition for certification election

and certification election proceedings

4. Cancellation of union registration

5. Reportorial requirements of labor organizations

6. Commingling of supervisors and rank-and-file

unions with the same federation or national

union operating in the same establishment

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What R. A. 9481 Is All About. . .

6. Petition for certification election in organized

and unorganized establishments filed by a

national union or federation or local chapter

with a charter certificate

7. Role of employers in certification elections

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Specific Amendments

Art. 234. Requirements of Registration

ART.234-A. (new) CHARTERING AND

CREATION OF A LOCAL CHAPTER

Art. 238. Cancellation of Registration [;Appeal]

ART. 238-A. (new) EFFECT OF A PETITION

FOR CANCELLATION OR REGISTRATION

Art. 239. Grounds for Cancellation of Union

Registration

ART. 239-A. (new) VOLUNTARY CANCELLA-

TION OF REGISTRATION

ART. 242-A. (new) REPORTORIAL REQUIRE-

MENTS

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Specific Amendments. . .

Art. 245. Ineligibility of Managerial Employees

to Join any Labor Organization

ART. 245-A. (new) EFFECT OF INCLUSION

AS MEMBERS OF EMPLOYEES OUTSIDE

THE BARGAINING UNIT

Art. 256. Representation Issue in Organized

Establishments

Art. 257. Petitions in Unorganized Establish-

ments

ART. 258-A. (new) EMPLOYER AS BY-

STANDER

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CRITICAL ISSUESCRITICAL ISSUES

Mass deletion of grounds for cancellation ofMass deletion of grounds for cancellation of

registration of labor unionsregistration of labor unions

NonNon--disclosure of membership of chartereddisclosure of membership of chartered

locals/chapters in representation issueslocals/chapters in representation issues

Commingling of supervisors and rankCommingling of supervisors and rank--andand--filefile--

unions in the same establishment affiliated withunions in the same establishment affiliated with

the same national union/federationthe same national union/federation

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Non-controversial amendments. . .

Art. 258-A. (new) provides that in a petition for

certification election, the employer is

considered not a party thereto with concomitant

right to oppose. Its participation is limited to:

1. Being notified of the petition and

2. Submitting the list of employees during the

pre-election conference

This provision is a reiteration of case law

Upon filing of the petition for certification election, the

role of the employer in the certification process

ceases. It becomes merely a bystander (Furusawa RubberPhilippines vs. Secretary of Labor, G. R. No. 121241, 10 December

1997)

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REGISTRATION OF

LABOR ORGANIZATIONS

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Nature of Registration

1. Registration is a condition sine qua non for the

acquisition of legal personality and rights and

privileges granted by law to legitimate labor

organizations

2. Regulation of registration and cancellation of

union registration constitute valid exercise of

police power (Progressive Development Corporation-Pizza Hut

vs. Laguesma, 271 SCRA 603) because activities in which

unions are engaged directly affect public

interest and should be protected (Philippine

Association of Free Labor Unions vs. Secretary of Labor, 27 SCRA41).

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Labor Organizations Qualified to Register

1. Independent unions: membership of at least

20% of all the employees of the collective

bargaining unit where it seeks to operate

2. Federations/national unions: affiliation of at

least 10 locals or chapters each of which is

a recognized collective bargaining agent

Exclusive power to create local chapter and

to act as its agent for purposes of collective

bargaining

3. Chartered local chapter: considered as the

principal for purposes of collective bargaining

but loses personality upon disaffiliation

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Labor Organizations Qualified to Register. . .

4. Industry union

5. Trade union center

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R. A. 9481R. A. 9481BEFORE AMENDMENTBEFORE AMENDMENT

Requirements of Registration: Changes

FEDERATION, NATIONAL FEDERATION, NATIONAL

UNION, INDUSTRY OR UNION, INDUSTRY OR

TRADE UNION CENTER, TRADE UNION CENTER,

INDEPENDENT UNIONINDEPENDENT UNION

Labor organization, association, Labor organization, association,

group of unions or workers. D. O. group of unions or workers. D. O.

No. 40No. 40--03 already provides for the 03 already provides for the

registration of independent unions, registration of independent unions,

federations, national unions as well federations, national unions as well

as locals or chaptersas locals or chapters

Art. 234Art. 234

Applies only to Applies only to

INDEPENDENT UNIONINDEPENDENT UNIONNames of all members comprising Names of all members comprising

at least 20% of all employees in at least 20% of all employees in

collective bargaining unitcollective bargaining unit

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Adopted provisions of D.O. 3Adopted provisions of D.O. 3--

BB--04 with the additional 04 with the additional

provision: provision: The chapter shall The chapter shall

acquire legal personality acquire legal personality

only for the purpose of filing only for the purpose of filing

a petition for certification a petition for certification

lection from the date it was lection from the date it was

issued a charter certificate.issued a charter certificate.

But D.O. No. 3But D.O. No. 3--BB--04 provides that 04 provides that

a registered federation or national a registered federation or national

union may directly create union may directly create

chartered local by submitting under chartered local by submitting under

oath the ff. documents certified by oath the ff. documents certified by

the localthe locals Secretary or Treasurer s Secretary or Treasurer

and attested by its President:and attested by its President:

1. Charter certificate1. Charter certificate

2. Names & addresses of 2. Names & addresses of

chapterchapters officerss officers

3. Constitution and by3. Constitution and by--lawslaws

Art. 234-A (Chartering)No provisionNo provision

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CANCELLATON OF

UNION REGISTRATION

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Grounds for Cancellation

Art. 239Art. 239

1. Same1. Same

2. Deleted2. Deleted

Art. 239Art. 239

1. Misrepresentation, false statement or fraud re 1. Misrepresentation, false statement or fraud re

adoption/ratification of Constitution, Byadoption/ratification of Constitution, By--Laws, Laws,

amendments, minutes of ratification, list of amendments, minutes of ratification, list of

members who took part in ratificationmembers who took part in ratification

2. Failure to submit above documents within 30 2. Failure to submit above documents within 30

days from adoption or ratification of constitution days from adoption or ratification of constitution

and byand by--laws or amendments theretolaws or amendments thereto

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Art. 239Art. 239

3. Misrepresentation/false

statements/fraud re election of

officers, minutes of election of

officers AND list of voters. [,or

failure to submit these

documents together with list of

newly elected/appointed

officers, their postal addresses

within 30 days from election];

Art. 239Art. 239

3. Misrepresentation/false

statements/fraud re election of

officers, minutes of election of

officers/list of voters, failure to

submit these documents

together with list of newly

elected/appointed officers,

their postal addresses within

30 days from election

Grounds for Cancellation. . .

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4.4. DeletedDeleted




4. Failure to submit the annual financial report to 4. Failure to submit the annual financial report to

the Bureau within 30 days after closing of the Bureau within 30 days after closing of

every fiscal year and misrepresentation, false every fiscal year and misrepresentation, false

entries or fraud in preparation of financial report entries or fraud in preparation of financial report

5. Acting as labor contractor or engaging in 5. Acting as labor contractor or engaging in cabocabo

system or in system or in any activity prohibited by lawany activity prohibited by law

6. Entering into 6. Entering into CBAsCBAs which provide terms and which provide terms and

conditions of employment below minimumconditions of employment below minimum

standards established by lawstandards established by law

7. Asking for/accepting attorneys fees/negotiation7. Asking for/accepting attorneys fees/negotiation

fees from employers (constitutes ULP under Art. fees from employers (constitutes ULP under Art.

249) 249)


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Art. 239Art. 239




Art. 239Art. 239

8. Checking off special assessments or 8. Checking off special assessments or

any other fees without duly signed any other fees without duly signed

individual written authorization of the individual written authorization of the

membersmembers

9. Failure to submit list of individual 9. Failure to submit list of individual

members to Bureau once a year or members to Bureau once a year or

whenever required by the Bureauwhenever required by the Bureau

10. Failure to comply with the10. Failure to comply with the

requirements under Article 237requirements under Article 237

(maintenance of not less 10 affiliates(maintenance of not less 10 affiliates

by federation/national union)by federation/national union)


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Art. 239Art. 239

VOLUNTARY DISSOLUTION BY VOLUNTARY DISSOLUTION BY

THE MEMBERS (new)THE MEMBERS (new)

ART. 239ART. 239--A (new)A (new)

VOLUNTARY CANCELLATION BY VOLUNTARY CANCELLATION BY

2/3 VOTES OF GENERAL 2/3 VOTES OF GENERAL

MEMBERSHIP OF LABOR MEMBERSHIP OF LABOR

ORGANIZATION PROVIDED THAT ORGANIZATION PROVIDED THAT

APPLICATION TO CANCEL APPLICATION TO CANCEL

REGISTRATION IS SUBMITTED BY REGISTRATION IS SUBMITTED BY

ITS BOARD ATTESTED BY ITS ITS BOARD ATTESTED BY ITS

PRESIDENT PRESIDENT

Outside the power of Bureau Outside the power of Bureau

to act which is expresslyto act which is expressly

limited to 3 grounds underlimited to 3 grounds under

amended Art. 239 amended Art. 239


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Other Grounds for Cancellation

Art. 238Art. 238

Bureau can cancel Bureau can cancel

only on 3 grounds only on 3 grounds

specified in Art. 239specified in Art. 239

No longer No longer

enforceableenforceable

Art. 238Art. 238

Bureau shall cancel registration after due Bureau shall cancel registration after due

hearing if labor organization no longer meets hearing if labor organization no longer meets

one or more of prescribed requirementsone or more of prescribed requirements

Art. 237Art. 237

Registration of federation/national union Registration of federation/national union

valid only if it has affiliation of at least 10 valid only if it has affiliation of at least 10

locals or chapter duly recognized as locals or chapter duly recognized as

collective bargaining agents in respective collective bargaining agents in respective

establishments establishments

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Other Grounds for Cancellation

No longer No longer

enforceableenforceableArt. 241 Art. 241 (rights & conditions of membership) (rights & conditions of membership)

Any violation of rights and conditions shall be Any violation of rights and conditions shall be

a ground for cancellation of union registration a ground for cancellation of union registration

or expulsion of officer from office whichever is or expulsion of officer from office whichever is

appropriateappropriate

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Reportorial Requirements: Art. 232Reportorial Requirements: Art. 232--A (new)A (new)

Documents required to be submitted to theDocuments required to be submitted to the

Bureau by a legitimate labor organization:Bureau by a legitimate labor organization:

1. Constitution and by1. Constitution and by--laws, amendments thereto, minuteslaws, amendments thereto, minutes

of ratification and list of members who took part within 30of ratification and list of members who took part within 30

days from adoption or ratificationdays from adoption or ratification

2. List of officers, minutes of election and list of voters with2. List of officers, minutes of election and list of voters withinin

30 days from election30 days from election

3. Annual financial report within 30 days after close of every3. Annual financial report within 30 days after close of every

fiscal yearfiscal year

4. List of members at least once a year or as required by4. List of members at least once a year or as required by

the Bureauthe Bureau

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Reportorial Requirements: Art. 232Reportorial Requirements: Art. 232--A. . .A. . .

Failure to comply not a ground for cancellationFailure to comply not a ground for cancellation

but subjects erring officers or members tobut subjects erring officers or members to

suspension, expulsion from membership or anysuspension, expulsion from membership or any

appropriate penaltyappropriate penalty

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Commingling: Supervisors & Rank-and-File Unions

Art. 245. Ineligibility of Managerial Employees to Join AnyIneligibility of Managerial Employees to Join Any

Labor Organization; Right of Supervisory Employees. Labor Organization; Right of Supervisory Employees.

Managerial employees are not eligible to join, assist or formManagerial employees are not eligible to join, assist or form

any labor organization. Supervisory employees shall not beany labor organization. Supervisory employees shall not be

eligible for membership in [a labor organization] THE eligible for membership in [a labor organization] THE

COLLECTIVE BARGAINING UNIT of the rankCOLLECTIVE BARGAINING UNIT of the rank--andand--filefile

employees but may join, assist or form separateemployees but may join, assist or form separate

COLLECTIVE BARGAINING UNITS AND/OR LEGITIMATECOLLECTIVE BARGAINING UNITS AND/OR LEGITIMATE

labor organizations of their own. THE RANK AND FILElabor organizations of their own. THE RANK AND FILE

UNION AND THE SUPERVISORUNION AND THE SUPERVISORS UNION OPERATINGS UNION OPERATING

WITHIN THE SAME ESTABLISHMENT MAY JOIN THEWITHIN THE SAME ESTABLISHMENT MAY JOIN THE

SAME FEDERATION OR NATIONAL UNIONSAME FEDERATION OR NATIONAL UNION

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Commingling. . .

1. As supported by jurisprudence, commingling is

contrary to public policy, undermines industrial

stability and destructive to employers

2. The peculiar role of supervisors is such that

while they are not managers, when they

recommend action implementing policy or ask

for the discipline or dismissal of subordinates,

they identify with the interests of the employer

and may act contrary to the interests of the

rank-and-file (Atlas Lithographic Services, Inc. vs. Laguesma,et al., 205 SCRA 12)

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Commingling. . .

3. Conflict of interest may arise in the areas of

discipline, collective bargaining and strike

a) Members of the supervisors union might

refuse to carry out disciplinary measures

against their co-affiliate rank-and-file

employees

b) In the area of bargaining, their interest can

not be considered identical. The needs of

one are different from those of the other

c) In the event of a strike, the federation might

influence the supervisors union to conduct

a sympathy strike on the sole basis of

affiliation (Atlas Lithographic Services, Inc. supra)supra)

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Mixture in Union Membership

1. Art. 245-A. (new): provides that inclusion as

members of employees outside the bargaining

unit not a ground for cancellation

2. This new provision reiterates what is already

provided by case law

a) Art. 245 merely prescribes a rule of membership

eligibility, and should not be a ground for cancellation

of union registration (SPI Technologies vs. Baldoz, G.R. No.

137422, 8 March 1999)

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Art. 245-A. . . .

a) In cases of mixture in union membership, the

procedure provided in purging the ranks of a rank-and-

file union with ineligible members may be through the

following:

1) mechanisms under the union constitution and

by-laws;

2) inclusion-exclusion proceedings during the pre-

election conference pursuant to Section 2, Rule XII.

(Philippine Telegraph and Telephone Corp. Vs. Laguesma, G. R.

No. 101730, 17 June 1993, 223 SCRA 452)

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Art. 245-A. . . .

3. The inclusion-exclusion proceedings are

primarily conducted to determine the eligibility

of voters during certification elections

4. But this process is vitiated in the case of

federations with chartered locals participating

in certification elections inasmuch as

they are not required to disclose their member-

ship and officers

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NONNON--DISCLOSURE ISSUESDISCLOSURE ISSUES

INVOLVING REPRESENTATION ININVOLVING REPRESENTATION IN

ESTABLISHMENTS,ESTABLISHMENTS,

ORGANIZED AND UNORGANIZEDORGANIZED AND UNORGANIZED

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Majority Representation, How Acquired

1. Voluntary recognition (Sec. 1[bbb], Rule I; Rule VII,D.O. No. 40-03

In unorganized establishments with only one

legitimate labor organization, employer may

voluntarily recognize representation status

2. Certification election (Sec. 1[h], Rule 1; Rule VIII, D.O.No. 40-03)

a) Art. 256: Representation issue in organized

establishment

b) Petitions in unorganized establishments

c) Art. 258: When employer may file petition

d) Art. 259: Appeal from certification election

orders

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Majority Representation, How Acquired. . .

3. Run-off election

When an election for 3 or more choices results

in no choice receiving a majority of the valid

votes cast, run-off election is conducted

between the 2 labor unions receiving the

highest number of votes (Art. 256)

4. Consent election (Sec. 1[h], Rule 1; Sec. 10, Rule VIII, D.O. No. 40-03)

An election voluntarily agreed upon by 2 or

more contending unions with or without the

intervention of DOLE to determine majority

representation of the workers in the appropriate

collective bargaining unit

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Representation Issue in Organized

Establishments (Art. 256, as amended)

1. A verified petition questioning majority status of

incumbent bargaining agent is filed before

DOLE by a legitimate labor organization

including national union/federation which

has issued charter certificate to its local

chapter participating in the certification

election or local chapter which has been

issued a charter certificate by the national

union or federation

2. Petition filed within the last 60 days of the 5th

year of the CBA (contract-bar rule)

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Establishments. . .

3. Med3. Med--Arbiter shall automatically order electionArbiter shall automatically order election

when petition is supported by written consentwhen petition is supported by written consent

of at least 25% of all employees in theof at least 25% of all employees in the

collective bargaining unitcollective bargaining unit

4. 4. If petition is filed by a national union orIf petition is filed by a national union or

federation, it shall not be required tofederation, it shall not be required to

disclose the names of the local chapterdisclose the names of the local chapterss

members and officersmembers and officers

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Establishments. . .

5. Implications:5. Implications:

a) Federation is exempted from submitting thea) Federation is exempted from submitting the

25% written consent of all employees25% written consent of all employees

b) Exemption grossly iniquitous and unfair forb) Exemption grossly iniquitous and unfair for

incumbent bargaining agent as well asincumbent bargaining agent as well as

employer who have no way of knowing employer who have no way of knowing

whether chartered local members includewhether chartered local members include

nonnon--eligible employees such as confidentialeligible employees such as confidential

employees and supervisorsemployees and supervisors

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Petitions in UnorganizedPetitions in Unorganized

Establishments Establishments (Art. 257)(Art. 257)

1.1. Establishment has no certified collectiveEstablishment has no certified collective

bargaining agentbargaining agent

2.2. The MedThe Med--Arbiter shall automatically conductArbiter shall automatically conduct

a certification election upon filing of a petitiona certification election upon filing of a petition

3.3. By legitimate labor organization, By legitimate labor organization, including a

national union/federation which has issued

a charter certificate to its local chapter

participating in the certification election or

local chapter which has been issued a

charter certificate by the national union or

federation

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Petitions in UnorganizedPetitions in Unorganized

Establishments. . .Establishments. . .

4. If petition is filed by a national union or4. If petition is filed by a national union or

federation, it shall not be required to federation, it shall not be required to

disclose the names of the local chapterdisclose the names of the local chapterss

members and officersmembers and officers

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