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).
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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