Monday, July 8, 2013

Grievance machineries and the employee code of conduct as tools for a mutually cooperative organization


Introduction

            The relationship between employers and employees has always been problematic. Employers view employees either as slackers or freeloaders earning pay for insignificant work. Employees on the other hand view employers as capitalist swine, Frederick Taylor’s words, who unfairly enslave people who know less and take advantage of their incapacity for easy profit while giving back so little as recompense for the effort exerted: overworked and underpaid.
            In 1849, Karl Marx and Friedrich Engels further exemplified the adversarial nature of this relationship and beckoned: Die Proletarier haben nicths in ihr zu verlieren als ihre Ketten. Sie haben eine Welt zu gewinnen. Proletarier aller Lander vereignigt euch![1] According to Kaufman (2004, 48): “[F]rom a Marxian perspective, the employment relationship has an inherent adversarial nature […] it is also fundamentally unjust and inhumane.”
            As a strong response to combat the capitalist stranglehold, Marx saw an opportunity for the working class. He believed that workers can be protected from these forces by forming trade unions and utilizing the strike formula to negotiate for better wages and work conditions (Ibid., 49). He saw this as an opportunity for the working class to rule the socialist-communist society. But, alas! This never came true. His dream remained elusive. Even Vladimir Lenin, a comrade, saw that a modification on the theory of class revolution was needed, that the working class were better resolved to favor economism and laborism, preferring short-run economic gains obtained through practical trade unionism and legislation (Ibid., 50), over a sickle-hammer revolution under the banner of the red star.
            Given this brief historical perspective of work relations, it isn’t difficult to picture why companies fear union penetration. However, the existence of unions within organizations can likewise be an impetus in forging a harmonious work relationship. The objective of an employee-employer relationship should optimistically be mutual gain and improvement. If this is how both parties view the importance of them playing their parts, industrial peace can be achieved.
            But, it is likewise obvious that this is not always the case. What then are the safeguards that guarantee the promotion of mutual rights and privilege?

Grievance explained

            A grievance is defined as “any question by either the employer or the union regarding the interpretation or application of the collective bargaining agreement or company personnel policies or any claim by either party that the other party is violating any provision of the CBA or company personnel policies” (in Azucena, 2010, 279). Almost all labor disputes arise from a failure in adhering to a given policy. The existing contract between the employer and the employee is the guiding principle of law. If the contract is not observed the “aggrieved party has the right to seek redress” (Ibid.). In addressing disputes arising from grievances, Art. 260 of the Labor Code of the Philippines prescribes the utilization of grievance machineries and voluntary arbitration for settlement.
            In Republic Savings Bank v. Court of Industrial Relations[2], the Supreme Court wrote

            Some other members of this Court believe, without necessarily expressing approval of the way the respondents expressed their grievances, that what the Bank should have done was to refer the letter- charge to the grievance committee. This was its duty, failing which it committed an unfair labor practice under section 4(a)(6). For collective bargaining does not end with the execution of an agreement. It is a continuous process. The duty to bargain imposes on the parties during the term of their agreement the mutual obligation “to meet and confer promptly and expeditiously and in good faith x x x for the purpose of adjusting any grievances or question arising under such agreement” and a violation of this agreement is, by section 4(a)(6) and 4(b)(3) an unfair labor practice. As Professors Cox and Dunlop point out:

Collective bargaining x x x normally takes the form of negotiations when major conditions of employment to be written into agreement are under consideration and of grievance committee meetings and arbitration when questions arising in the administration of an agreement are at stake x x x  

It is intended to promote, as it were, a friendly dialogue between labor and management as a means of maintaining industrial peace.

            The question of good faith negotiation is of paramount importance as the nature of the contract-agreement is concerned. Industrial peace guarantees productivity and assures continued employment. Insofar as industrial peace is concerned, the prior consideration should be an efficient labor dispute settlement device (Sale, 2005, 24).  

A brief history[3] of grievance and dispute settlement: The Philippine scenario

            The Philippine government has been supportive of the early and voluntary settlement of disputes. During the Commonwealth period, though, between 1936 to 1953, saw the enactment of CA 103 which created the Court of Industrial Relations (CIR) and the adherence to compulsory arbitration (CA) because of a disorganized workforce who are part of the large haciendas and plantations. Of course, the assumption on why the resolution is CA is due to the fact that, my assumption, most government officials then had controlling interests in the haciendas and plantations being members of the elite and is therefore privy to the losses inherent to a dispute.  
            From 1953 to 1972 on the other hand, referred to as the Industrial Act period, the primacy of collective bargaining was exemplified through R.A. 875. It has also limited the powers of the CIR in practicing CA duties only to industries of vital importance to the State.
            During the Martial Law period, 1972 to 1986, the landmark law was enacted through P.D. 442, otherwise known as the Labor Code of the Philippines. Also, through P.D. 21, important rules have been established: (1) The use of voluntary arbitration (VA); (2) Banning strikes covering industries of vital importance to the State, and; (3) The formation of the National Labor Relations Commission (NLRC). It has also given a framework to four (4) important provisions: (1) The importance of clearance procedures relating to the dismissal or termination of an employee who has already rendered one year of service; (2) The utility of a mandatory grievance procedure as the initial stage of dispute settlement; (3) That before submitting cases for settlement to the NLRC, VA should be exhausted therefore requiring; (4) The designation of a voluntary arbitrator in the CBA.
            The post-Martial Law period, covering 1986 to present, the enactment of E.O. 126 which reorganized the Department of Labor and Employment (DOLE), strengthened the maximum utilization of voluntary modes of dispute settlement. Further, E.O. 251 established the Tripartite Voluntary Arbitration Advisory Council (TVAAC) while R.A. 6715 amended parts of the Code and reinforced the utility of collective bargaining agreements and trade unionism as effective modes of labor dispute settlement. Sec. 3, Art. XIII of the 1987 Constitution on the other hand, the State has enjoined both the employers and the employees in a shared responsibility to effect the quick settlement of disputes through voluntary and conciliatory means to attain the elusive industrial peace.

Grievance procedures

            There are two major ways in which disputes, during the life of the contract, are resolved: arbitration and strikes (Fossum, 1979, 335). If both parties concerned are resolute in attaining a mutual agreement in addressing a dispute, the row should be exhaustively addressed through a colloquium. As can be seen below, the Code prescribes a simple process of mutual cooperation between the aggrieved, which in this sample is an employee, union leadership and management representative/s (Chart 1).

Chart 1. Grievance machinery process

            This is not a required process as they may vary from organization to organization. In most circumstances, the grievance is settled at the first level. If not, the rest follows.
            When I was still with Corporate HR Services and Consulting, Inc., the HR arm of KFC-Mister Donut Philippines, from 2007 to 2008 I handled the grievance and dismissal procedures of probationary employees, but more of the latter. But as far as grievances are concerned, given that no union existed in the company, we adhered to the facility afforded by the Employee Code of Conduct. It was a freshly revised document then that I even did a tour of Cebu to orient all the employees assigned there. That ECOC was inclined to only include those involved in restaurant operations given the nature of the company’s businesses. If and when cases of misconduct arise from office-related incidents, the Cebu office would normally call me; sometimes the grievance hearing would be done over the phone or worst, through email correspondence. The grievance process in the company was not as intact as it should have been. On the other hand, as I was involved likewise in the recruitment of managerial and specialist head office personnel, I was also tasked to handle, in coordination with the Security Department, the facilitation of background investigation. The ECOC was the sole basis of framing employee-employer rights insofar as the facilitation of work is concerned, but it wasn’t exhaustive. It had operational lacks most specifically in the rendering of sanctions.

Observation

            The ECOC is a sacred handbook for the HR department and as is should be rolled-out to all line managers for their proper guidance. However, some if not most, line managers see the HR function as purely administrative, they care less about what the contents of the ECOC are. They simply rely on HR to facilitate this for them. The promotion of industrial peace is a mutual activity of management and employees, and management is not simply HR. All line managers are HR managers. Most HR practitioners fail to stress this point and impose this to guide all the implications of line managers’ actions. Sibal (2005, 102) describes industrial relations as “social relations of production.” The objective of work and managing is one and the same: social empowerment. But at one point in time, as always, either party asks for so much relative to labor relations issues. Sibal (Ibid.) recommends, given that disputes may lead to a decline in union bargaining power or a loss of confidence in maintaining a standard conduct of work discipline, that unions should be aligned with civil society in exploring new mechanisms for labor empowerment and support corporate codes of conduct to promote self-regulation of labor standards compliance. The COC/COD should be drafted in partnership with employee representation. It is a mutual guarantee to assure a fair development of organic organizational law to promote industrial peace and cooperation. This has given rise to, as union and union membership declined due in part to either intra- or inter-related conflicts, dispute mechanisms like labor-management councils (LMC) and non-union employee representation (NER).
            It is important to note that LMCs and NERs are less taxing because

…organizing a labor union, which is the prevailing kind of labor organization in the country, is, in reality, a risk to employees – it may mean losing their jobs. By and large, employers dislike labor unions. These are often regarded as adversaries of management powers; therefore, efforts to unionize are discouraged if not thwarted, much more with today’s intensifying global competition where employers cannot afford any disruption in their business activities. But denying employee representation at the workplace neither promotes healthy and harmonious work relationship (Binghay, 2009, 63).

Just the same, eventhough there exist multiple employee representation frameworks, it still should be a guaranteed right.
            The problem with the tension between employee-employer relationships are that organizations have failed to live by and through it. Labor education, on the part of both the academe and graduate students, has failed horribly. Education has simply become a degree process. It saddens me especially to know from my client base, senior HR guys who’ve taken this same path ages before me, are simply going through the motion of employment: going through each day waiting for the 15/30 ration to tide their days over. No significant contribution has been instigated. And yet they get paid hundreds of thousands monthly, brandishing their high-end accessories, top of the class cars, a catchy title. Is this really what the HR practice is all about? People champions? Maybe not. The lessons in 207.1 showed me a greater role that HR practitioners, young and old, should play in the workplace. It’s not about simply being good in handling CBA or in quoting verbatim articles in the Code. It makes us see the human in HR. I have read before, I can no longer remember where, that HR practitioners are amphibious. They venture the dry, stable ground as a management representative and swim the wet marsh of the employees as the one who could only swim as well. According to Sibal (2010, 87)

The social partnership between employers and labor requires cooperation and non-confrontational methods in resolving conflicts. There should be constant dialogues, communications, and consultations on issues affecting their respective rights and interests. It should be a relationship founded on mutual respect, sincere commitment, and a genuine concern geared towards common goals of achieving productivity, competitiveness, and decent work.

            The HR practice should be updated. It should be able to anticipate the ever-changing cycles resulting from the globalized standpoint of society. Practitioners should be educated on the implications of the changing workplace so as not to be caught off-guard in their dealings with issues and concerns arising from these shifts. We, HR representatives, should find a way to educate existing unions and union members in the rejuvenation of their respective representations coupled with the support of government to prevent future events similar to what’s happening with PALEA, and this can be achieved by lobbying relevant laws that will address the issues that plague the traditional IR practice. Unions should no longer simply focus on the CBA which is internal and limiting to the general change in union perspectives. The academe plays a very important role in this effort.  Objectively, academic research will uncover the grey areas wherein unions can be given more practical responsibilities as common interest groups that engage in mutual dialogue, with the government and employers’ organizations, within an existing social order. Unions also tend to conflict with each other thus segregating more and more the workforce. They should, in partnership with academics, develop a more consolidated outlook of achieving long term development rather than the just-for-now solutions. Collective bargaining should be brought outside organizations by lobbying for legislative turnouts in the protection of workers, both inside and outside the country. This will afford them a far-reaching clarion call for stable social partnerships. This is the true voice of the working class.
           
           
References

Azucena, Cesario, Jr. (2010) Everyone’s labor code. Quezon City: Rex Printing Company, Inc.
Binghay, Virgel. (2009) Talent management, migration and globalization. Rizal: VCB Research, Publicsations and Consultancy.
Fossum, John. (1979) Labor relations: Development, structure, process. Texas: Business Publications, Inc.
Gatchalian, Ramon Elmerito, et. al. (2008) Employee discipline and dismissal (Basis, laws, jurisprudence, and best practices). Quezon City: Central Book Supply, Inc.
Kaufman, Bruce. (2004) The global evolution of industrial relations: Events, ideas and the IIRA. Geneva: ILO.
Metcalf, David and Simon Milner, Eds. (1993) New perspectives on industrial disputes. London: Routledge.
Sale, Jonathan. (2005) “Labor dispute settlement and decision-making” in Aganon, Marie (Ed.) Philippine journal of labor and industrial relations, Vol. XXV (1-2). Quezon City: University of the Philippines, School of Labor and Industrial Relations.
Sibal, Jorge. (2010) “Social partnership models: Challenges to IR actors” in Ofreneo, Rene (Ed.) Philippine journal of labor and industrial relations, Vol. XXX (1-2). Quezon City: University of the Philippines, School of Labor and Industrial Relations.
-----------------. (2005) “Contemporary issues and problems in the Philippine industrial relations system” in Aganon, Marie (Ed.) Philippine journal of labor and industrial relations, Vol. XXV (1-2). Quezon City: University of the Philippines, School of Labor and Industrial Relations.


[1] The working class has nothing to lose other than their chains. They have a world to win. Working men of all countries: unite! (Marx and Engels, The Communist Manifesto, 1849)
[2] 21 SCRA 226 (1967)
[3] Taken from the Primer on grievance settlement and voluntary arbitration (NCMB, 1990).

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