Right to self-organization

The right to self-organization includes the right to form, join or assist labor organizations for the purpose of collective bargaining through representatives of their own choosing and to engage in lawful concerted activities for the same purpose for their mutual aid and protection.

1. Concepts

“Right to self-organization” – includes the right to form, join or assist labor organizations for the purpose of collective bargaining through representatives of their own choosing and to engage in lawful concerted activities for the same purpose for their mutual aid and protection. This is in line with the policy of the State to foster the free and voluntary organization of a strong and united labor movement as well as to make sure that workers participate in policy and decision-making processes affecting their rights, duties and welfare. (Samahan ng Manggagawa sa Hanjin Shipyard v. Bureau of Labor Relations, G. R. No. 211145, 14 October 2015)

a. Legal basis

1) 1987 Constitution

Expressed in the highest law of the land is the right of all workers to self-organization. (Samahan ng Manggagawa sa Hanjin Shipyard v. Bureau of Labor Relations, G. R. No. 211145, 14 October 2015)

2) ILO Convention No. 87

As a member of the International Labor Organization (ILO), the Philippines is bound to comply with Conventions, particularly if they are ratified as these become binding laws. (See Azucena, CA. The Labor Code with Comments and Cases, Volume II-A, p 16.)

For the right to self-organization, ILO Convention No. 87 is applicable:

3) P.D. 442, Labor Code

4) DOLE Regulation

b. Two notions

The right to form a union or association or to self-organization comprehends two notions, to wit:

1) The liberty or freedom, that is, the absence of restraint which guarantees that the employee may act for himself without being prevented by law; and,

2) The power, by virtue of which an employee may, as he pleases, join or refrain from joining an association. (Samahan ng Manggagawa sa Hanjin Shipyard v. Bureau of Labor Relations, G. R. No. 211145, 14 October 2015)

More often than not, the right to self-organization connotes unionism. Workers, however, can also form and join a workers’ association as well as labor-management councils (LMC). (Samahan ng Manggagawa sa Hanjin Shipyard v. Bureau of Labor Relations, G. R. No. 211145, 14 October 2015)

The right to self-organization is not limited to unionism. Workers may also form or join an association for mutual aid and protection and for other legitimate purposes. (Samahan ng Manggagawa sa Hanjin Shipyard v. Bureau of Labor Relations, G. R. No. 211145, 14 October 2015)

2. Union v. Workers Association

Workers may form, join, or assist in a union or an association in line with their constitutional right to self-organization.

a. Right to choose belongs to workers

The right to form or join a labor organization necessarily includes the right to refuse or refrain from exercising the said right. It is self-evident that just as no one should be denied the exercise of a right granted by law, so also, no one should be compelled to exercise such a conferred right. Also inherent in the right to self-organization is the right to choose whether to form a union for purposes of collective bargaining or a workers’ association for purposes of providing mutual aid and protection. (Samahan ng Manggagawa sa Hanjin Shipyard v. Bureau of Labor Relations, supra.)

A cursory reading of the law demonstrates that a common element between unionism and the formation of LMCs is the existence of an employer-employee relationship. Where neither party is an employer nor an employee of the other, no duty to bargain collectively would exist. In the same manner, expressed in Article 255 (now 261) is the requirement that such workers be employed in the establishment before they can participate in policy and decision making processes. (Ibid.)

In contrast, the existence of employer-employee relationship is not mandatory in the formation of workers’ association. What the law simply requires is that the members of the workers’ association, at the very least, share the same interest. The very definition of a workers’ association speaks of “mutual aid and protection.” (Ibid.)

b. Who may join labor unions and workers’ associations

All persons employed in commercial, industrial and agricultural enterprises, including employees of government owned or controlled corporations without original charters established under the Corporation Code, as well as employees of 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 unions for purposes of collective bargaining: provided, however, that supervisory employees shall not be eligible for membership in a labor union of the rank-and-file employees but may form, join or assist separate labor unions of their own. Managerial employees shall not be eligible to form, join or assist any labor unions for purposes of collective bargaining. (Section 2, Rule II, DOLE Department Order No. 40, Series of 2003, as amended by A-I)

Alien employees with valid working permits issued by the Department may exercise the right to self-organization and join or assist labor unions for purposes of collective bargaining if they are nationals of a country which grants the same or similar rights to Filipino workers, as certified by the Department of Foreign Affairs, or which has ratified either ILO Convention No. 87 and ILO Convention No. 98. (Paragraph 2, Rule II, Ibid.)

[A]ny employee, whether employed for a definite period or not, shall beginning on the first day of his/her service, be eligible for membership in any labor organization. (Paragraph 3, Rule II, Ibid.)

All other workers, including ambulant, intermittent and other workers, the self-employed, rural workers and those without any definite employers may form labor organizations for their mutual aid and protection and other legitimate purposes except collective bargaining. (Last paragraph, Rule II, Ibid.)

3. Limits of right to self-organization

a. Government officers and employees

ARIZALA v. CA, G.R. Nos. 43633-34, 14 September 1990

⦁ Executive Order No. 180

⦁ The scope of the constitutional right to self-organization of “government employees” above mentioned, was defined and delineated in Executive Order No. 180 (eff. June 1, 1987). According to this Executive Order, the right of self-organization does indeed pertain to all “employees of all branches, subdivisions, instrumentalities and agencies of the Government, including government-owned or controlled corporations with original charters;” 36 such employees “shall not be discriminated against in respect of their employment by reason of their membership in employees’ organizations or participation in the normal activities of their organization x x (and their) employment shall not be subject to the condition that they shall not join or shall relinquish their membership in the employees’ organizations.”

⦁ However, the concept of the government employees’ right of self-organization differs significantly from that of employees in the private sector. The latter’s right of self-organization, i.e., “to form, join or assist labor organizations for purposes of collective bargaining,” admittedly includes the right to deal and negotiate with their respective employers in order to fix the terms and conditions of employment and also, to engage in concerted activities for the attainment of their objectives, such as strikes, picketing, boycotts. But the right of government employees to “form, join or assist employees organizations of their own choosing” under Executive Order No. 180 is not regarded as existing or available for “purposes of collective bargaining,” but simply “for the furtherance and protection of their interests.”

⦁ In other words, the right of Government employees to deal and negotiate with their respective employers is not quite as extensive as that of private employees. Excluded from negotiation by government employees are the “terms and conditions of employment … that are fixed by law,” it being only those terms and conditions not otherwise fixed by law that “may be subject of negotiation between the duly recognized employees’ organizations and appropriate government authorities,” And while EO No. 180 concedes to government employees, like their counterparts in the private sector, the right to engage in concerted activities, including the right to strike, the executive order is quick to add that those activities must be exercised in accordance with law, i.e. are subject both to “Civil Service Law and rules” and “any legislation that may be enacted by Congress,” that “the resolution of complaints, grievances and cases involving government employees” is not ordinarily left to collective bargaining or other related concerted activities, but to “Civil Service Law and labor laws and procedures whenever applicable;” and that in case “any dispute remains unresolved after exhausting all available remedies under existing laws and procedures, the parties may jointly refer the dispute to the (Public Sector Labor-Management) Council for appropriate action.”41 What is more, the Rules and Regulations implementing Executive Order No. 180 explicitly provide that since the “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, the employees therein shall not strike for the purpose of securing changes thereof.”

⦁ On the matter of limitations on membership in labor unions of government employees, Executive Order No. 180 declares that “high level employees whose functions are normally considered as policy making or managerial, or whose duties are of a highly confidential nature shall not be eligible to join the organization of rank-and-file government employees.” A “high level employee” is one “whose functions are normally considered policy determining, managerial or one whose duties are highly confidential in nature. A managerial function refers to the exercise of powers such as: 1. To effectively recommend such managerial actions; 2. To formulate or execute management policies and decisions; or 3. To hire, transfer, suspend, lay off, recall, dismiss, assign or discipline employees.”

⦁ Republic Act No. 6715

⦁ The rule regarding membership in labor organizations of managerial and supervisory employees just adverted to, was clarified and refined by Republic Act No. 6715, effective on March 21, 1989, further amending the Labor Code.

⦁ Under RA 6715 labor unions are regarded as organized either (a) “for purposes of negotiation,” or (b) “for furtherance and protection” of the members’ rights. Membership in unions organized “for purposes of negotiation” is open only to rank-and-file employees. “Supervisory employees” are ineligible “for membership in a labor organization of the rank-and-file employees but may join, assist or form separate labor organizations of their own,” i.e., one organized “for furtherance and protection” of their rights and interests. However, according to the Rules implementing RA 6715, “supervisory employees who are included in an existing rank-and- file bargaining unit, upon the effectivity of Republic Act No. 6715 shall remain in that unit …” Supervisory employees are “those who, in the interest of the employer, effectively recommend such managerial actions 4if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment.

⦁ Membership in employees’ organizations formed for purposes of negotiation are open to rank-and-file employees only, as above mentioned, and not to high level employees. Indeed, “managerial employees” or “high level employees” are, to repeat, “not eligible to join, assist or form any labor organization” at all. A managerial employee is defined as “one who is vested with powers or prerogatives to lay down and execute, management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees.”

⦁ This is how the law now stands, particularly with respect to supervisory employees vis-à-vis labor organizations of employees under them.

1) Exception: Government employees who are prohibited

The following shall not be eligible to form, join or assist any employees’ organization for purposes of collective negotiations:

(a) high level, highly confidential and coterminous employees;

(b) members of the Armed Forces of the Philippines;

(c) members of the Philippine National Police;

(d) firemen;

(e) jail guards; and,

(f) other personnel who, by the nature of their functions, are authorized to carry firearms, except when there is express written approval from management. (Last paragraph, Section 2, Rule II, Executive Order No. 180 [1987])

b. Managerial employees

“Managerial employee” – refers to “one who is vested with the powers or prerogatives to lay down and execute management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees. (Article 219[m], P.D. 442, Labor Code)

The right to self-organization, however, is subject to certain limitations as provided by law. For instance, the Labor Code specifically disallows managerial employees from joining, assisting or forming any labor union. Meanwhile, supervisory employees, while eligible for membership in labor organizations, are proscribed from joining the collective bargaining unit of the rank and file employees.54 Even government employees have the right to self-organization. It is not, however, regarded as existing or available for purposes of collective bargaining, but simply for the furtherance and protection of their interests. (Samahan ng Manggagawa sa Hanjin Shipyard v. Bureau of Labor Relations, supra.)

The Court disagrees. There is no provision in the Labor Code that states that employees with definite employers may form, join or assist unions only. (Ibid.)

The right to form a workers’ association is not exclusive to ambulant, intermittent and itinerant workers. The option to form or join a union or a workers’ association lies with the workers themselves, and whether they have definite employers or not. (Ibid.)

c. Supervisory employees

“Supervisory employees” – refer to “those who, in the interest of the employer, effectively recommend such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment. (Article 219[m], P.D. 442, Labor Code)

As provided in Article 255 of the Labor Code, supervisory employees are not allowed to join the collective bargaining unit of the rank-and-file employees. However, supervisory employees may join, assist or form a separate collective bargaining unit and/or labor organization of their own – or composed of supervisory employees only. (Ibid.)

1) Test

The test of “supervisory” or “managerial status” depends on whether a person possesses authority to act in the interest of his employer in the matter specified in Article [219(m)] of the Labor Code and Section 1 (m) of its Implementing Rules and whether such authority is not merely routinary or clerical in nature, but requires the use of independent judgment. Thus, where such recommendatory powers as in the case at bar, are subject to evaluation, review and final action by the department heads and other higher executives of the company, the same, although present, are not effective and not an exercise of independent judgment as required by law… (Franklin Baker Company of the Philippines v. Trajano, G.R. No. 75039 28 January 1988)

FRANKLIN BAKER COMPANY OF THE PHILIPPINES v. TRAJANO, G.R. No. 75039 28 January 1988

⦁ To sustain its posture, that the inspectors, foreman and supervisors numbering 76 are managerial employees, petitioner painstakingly demonstrates that subject employees indeed participate in the formulation and execution of company policies and regulations as to the conduct of work in the plant, exercised the power to hire, suspend or dismiss subordinate employees and effectively recommend such action, by citing concrete cases, among which are: (1) Mr. Ponciano Viola, a wet process inspector, who while in the performance of his duty, found Mr. Enrique Asuncion, a trimmer “forging”, falsifying and simulating a company time card (timesheet) resulting in payroll padding, immediately recommended the dismissal of said erring employee, resulting in the latter’s discharge. (Employer’s Memo, Rollo, p.18); (2) Mr. Manuel Alipio, an opening inspector, recommended for suspension Nut Operator Ephraim Dumayos who was caught in the act of surreptitiously transferring to a co-worker’s bin some whole nuts which act constitutes a violation of company policy; (3) Mr. Sofronio Abangan, a line inspector, censured and thereafter recommended the suspension of Mr. Romeo Fullante, for being remiss in the proper and accurate counting of nuts; (4) Binleader Dionisio Agtang was required to explain his inefficiency of Mr. Saturnino Bangkas, Bin Loading Inspector; (5) for disobeying the orders of Bin Loading Inspector Mauricio Lumanog’s order, Macario Mante, Eduardo Adaptor, Rodolfo Irene and George Rellanos were all recommended for suspension which culminated in an investigation conducted by Lumanog’s higher bosses (Ibid., p. 20).

⦁ It has also been shown that subject employees have the power to hire, as evidenced by the hiring of Rolando Asis, Roy Layson, Arcadio Gaudicos and Felix Arciaga, upon the recommendation of Opening Inspector Serafin Suelo, Processing Inspector Leonardo Velez and Laureano C. Lim, Opening Inspector (Ibid., p. 21).

⦁ It will be noted, however, that in the performance of their duties and functions and in the exercise of their recommendatory powers, subject employees may only recommend, as the ultimate power to hire, fire or suspend as the case may be, rests upon the plant personnel manager.

⦁ Furthermore, in line with the ruling of this Court, subject employees are not managerial employees because as borne by the records, they do not participate in policy making but are given ready policies to execute and standard practices to observe, thus having little freedom of action…

d. Confidential employees

Confidential employees are those who (1) assist or act in a confidential capacity, (2) to persons who formulate, determine, and effectuate management policies in the field of labor relations. The two criteria are cumulative, and both must be met if an employee is to be considered a confidential employee — that is, the confidential relationship must exist between the employee and his supervisor, and the supervisor must handle the prescribed responsibilities relating to labor relations. (San Miguel Corporation Supervisors and Exempt Union v. Laguesma, G.R. No. 110399, 15 August 1997)

A confidential employee is one entrusted with confidence on delicate, or with the custody, handling or care and protection of the employer’s property. Confidential employees, such as accounting personnel, should be excluded from the bargaining unit, as their access to confidential information may become the source of undue advantage. However, such fact does not apply to the position of Payroll Master and the whole gamut of employees who has access to salary and compensation data. The position of Payroll Master does not involve dealing with confidential labor relations information in the course of the performance of his functions. Since the nature of his work does not pertain to company rules and regulations and confidential labor relations, it follows that he cannot be excluded from the subject bargaining unit. (San Miguel Foods, Incorporated v. San Miguel Corporation Supervisors, supra.)

1) Exclusion via doctrine of necessary implication

Art. 245 of the Labor Code11 does not directly prohibit confidential employees from engaging in union activities. However, under the doctrine of necessary implication, the disqualification of managerial employees equally applies to confidential employees. The confidential-employee rule justifies exclusion of confidential employees because in the normal course of their duties they become aware of management policies relating to labor relations. (Sugbuanon Rural Bank, Inc. v. Laguesma, G.R. No. 116194, 02 February 2000)

Corollarily, although the Labor Code limits the ineligibility to join, form and assist any labor organization to managerial employees, jurisprudence has extended this prohibition to confidential employees or those who by reason of their positions or nature of work are required to assist or act in a fiduciary manner to managerial employees and, hence, are likewise privy to sensitive and highly confidential records. Confidential employees are thus excluded from the rank-and-file bargaining unit. (San Miguel Foods, Incorporated v. San Miguel Corporation Supervisors, G.R. No. 146206, 01 August 2011)

Confidential employees, by the very nature of their functions, assist and act in a confidential capacity to, or have access to confidential matters of, persons who exercise managerial functions in the field of labor relations. Therefore, the rationale behind the ineligibility of managerial employees to form, assist or join a labor union was held equally applicable to them. (San Miguel Corporation Supervisors and Exempt Union v. Laguesma, G.R. No. 110399, 15 August 1997)

2) Rationale

The rationale for their separate category and disqualification to join any labor organization is similar to the inhibition for managerial employees, because if allowed to be affiliated with a union, the latter might not be assured of their loyalty in view of evident conflict of interests and the union can also become company-denominated with the presence of managerial employees in the union membership. Having access to confidential information, confidential employees may also become the source of undue advantage. Said employees may act as a spy or spies of either party to a collective bargaining agreement. (San Miguel Foods, Incorporated v. San Miguel Corporation Supervisors, supra.)

3) Confidential employee rule

The exclusion from bargaining units of employees who, in the normal course of their duties, become aware of management policies relating to labor relations is a principal objective sought to be accomplished by the “confidential employee rule.” The broad rationale behind this rule is that employees should not be placed in a position involving a potential conflict of interests. “Management should not be required to handle labor relations matters through employees who are represented by the union with which the company is required to deal and who in the normal performance of their duties may obtain advance information of the company’s position with regard to contract negotiations, the disposition of grievances, or other labor relations matters.” (San Miguel Corporation Supervisors and Exempt Union v. Laguesma, supra.)

4) Need to use labor relations information

An important element of the “confidential employee rule” is the employee’s need to use labor relations information. Thus, in determining the confidentiality of certain employees, a key question frequently considered is the employee’s necessary access to confidential labor relations information. (Ibid.)

It must be stressed, however, that when the employee does not have access to confidential labor relations information, there is no legal prohibition against confidential employees from forming, assisting, or joining a union. (Sugbuanon Rural Bank, Inc. v. Laguesma, G.R. No. 116194, 02 February 2000)

e. Cooperative members-employees

[A]n employee of a cooperative who is a member and co-owner thereof cannot invoke the right to collective bargaining. (Batangas-I Electric Cooperative Labor Union v. Young, G.R. Nos. 62386, 70880, and 74560, 09 November 1988)

[T]he right to collective bargaining is not available to an employee of a cooperative who at the same time is a member and co-owner thereof. With respect, however, to employees who are neither members nor co-owners of the cooperative they are entitled to exercise the rights to self-organization, collective bargaining and negotiation as mandated by the 1987 Constitution and applicable statutes. (Benguet Electric Cooperative, Inc. v. Ferrer-Calleja, G.R. No. 79025, 29 December 1989)

COOPERATIVE RURAL BANK OF DAVAO CITY v. FERRER-CALLEJA, G.R. No. 77951, 26 September 1988

⦁ A cooperative, therefore, is by its nature different from an ordinary business concern being run either by persons, partnerships, or corporations. Its owners and/or members are the ones who run and operate the business while the others are its employees. As above stated, irrespective of the name of shares owned by its member they are entitled to cast one vote each in deciding upon the affair of the cooperative. Their share capital eam limited interests. They enjoy special privileges as — exemption from income tax and sales taxes, preferential right to supply their products to State agencies and even exemption from the minimum wage laws.

⦁ An employee therefore of such a cooperative who is a member and co-owner thereof cannot invoke the right to collective bargaining for certainly an owner cannot bargain with himself or his co-owners. In the opinion of August 14, 1981 of the Solicitor General he correctly opined that employees of cooperatives who are themselves members of the cooperative have no right to form or join labor organizations for purposes of collective bargaining for being themselves co-owners of the cooperative.

⦁ However, in so far as it involves cooperatives with employees who are not members or co-owners thereof, certainly such employees are entitled to exercise the rights of all workers to organization, collective bargaining, negotiations and others as are enshrined in the Constitution and existing laws of the country.

f. Employees of international organizations

Due to the diplomatic immunity granted to international organizations, they are not subject to local jurisdiction – including the Department of Labor and Employment (DOLE). Thus, any petition for certification of election cannot be acted upon by the DOLE.

The term “international organization” is generally used to describe an organization set up by agreement between two or more states. Under contemporary international law, such organizations are endowed with some degree of international legal personality such that they are capable of exercising specific rights, duties and powers. They are organized mainly as a means for conducting general international business in which the member states have an interest. The United Nations, for instance, is an international organization dedicated to the propagation of world peace. (International Catholic Immigration Commission v. Calleja, G.R. No. 85750, 28 September 1990)

“Specialized agencies” are international organizations having functions in particular fields. (Ibid.)

The rapid growth of international organizations under contemporary international law has paved the way for the development of the concept of international immunities. (Ibid.)

INTERNATIONAL CATHOLIC IMMIGRATION COMMISSION v. CALLEJA, G.R. No. 85750, 28 September 1990)

⦁ There are basically three propositions underlying the grant of international immunities to international organizations. These principles, contained in the ILO Memorandum are stated thus: 1) international institutions should have a status which protects them against control or interference by any one government in the performance of functions for the effective discharge of which they are responsible to democratically constituted international bodies in which all the nations concerned are represented; 2) no country should derive any national financial advantage by levying fiscal charges on common international funds; and 3) the international organization should, as a collectivity of States members, be accorded the facilities for the conduct of its official business customarily extended to each other by its individual member States. The theory behind all three propositions is said to be essentially institutional in character. “It is not concerned with the status, dignity or privileges of individuals, but with the elements of functional independence necessary to free international institutions from national control and to enable them to discharge their responsibilities impartially on behalf of all their members.” The raison d’etre for these immunities is the assurance of unimpeded performance of their functions by the agencies concerned.

⦁ The grant of immunity from local jurisdiction to ICMC and IRRI is clearly necessitated by their international character and respective purposes. The objective is to avoid the danger of partiality and interference by the host country in their internal workings. The exercise of jurisdiction by the Department of Labor in these instances would defeat the very purpose of immunity, which is to shield the affairs of international organizations, in accordance with international practice, from political pressure or control by the host country to the prejudice of member States of the organization, and to ensure the unhampered performance of their functions.

⦁ ICMC’s and IRRI’s immunity from local jurisdiction by no means deprives labor of its basic rights, which are guaranteed by Article II, Section 18, 14 Article III, Section 8, 15 and Article XIII, Section 3 (supra), of the 1987 Constitution; and implemented by Articles 243 and 246 of the Labor Code, 16 relied on by the BLR Director and by Kapisanan.

⦁ For, ICMC employees are not without recourse whenever there are disputes to be settled. Section 31 of the Convention on the Privileges and Immunities of the Specialized Agencies of the United Nations provides that “each specialized agency shall make provision for appropriate modes of settlement of: (a) disputes arising out of contracts or other disputes of private character to which the specialized agency is a party.” Moreover, pursuant to Article IV of the Memorandum of Agreement between ICMC [and] the Philippine Government, whenever there is any abuse of privilege by ICMC, the Government is free to withdraw the privileges and immunities accorded…

⦁ Neither are the employees of IRRI without remedy in case of dispute with management as, in fact, there had been organized a forum for better management-employee relationship as evidenced by the formation of the Council of IRRI Employees and Management (CIEM) wherein “both management and employees were and still are represented for purposes of maintaining mutual and beneficial cooperation between IRRI and its employees.” The existence of this Union factually and tellingly belies the argument that Pres. Decree No. 1620, which grants to IRRI the status, privileges and immunities of an international organization, deprives its employees of the right to self-organization.

⦁ The immunity granted being “from every form of legal process except in so far as in any particular case they have expressly waived their immunity,” it is inaccurate to state that a certification election is beyond the scope of that immunity for the reason that it is not a suit against ICMC. A certification election cannot be viewed as an independent or isolated process. It could tugger off a series of events in the collective bargaining process together with related incidents and/or concerted activities, which could inevitably involve ICMC in the “legal process,” which includes “any penal, civil and administrative proceedings.” The eventuality of Court litigation is neither remote and from which international organizations are precisely shielded to safeguard them from the disruption of their functions. Clauses on jurisdictional immunity are said to be standard provisions in the constitutions of international Organizations. “The immunity covers the organization concerned, its property and its assets. It is equally applicable to proceedings in personam and proceedings in rem.”

g. Union security clause

Pertinent is Article 259 (formerly 248), paragraph (e) of the Labor Code, which states that “[n]othing in this Code or in any other law shall stop the parties from requiring membership in a recognized collective bargaining agent as a condition for employment, except those employees who are already members of another union at the time of the signing of the collective bargaining agreement. x x x” The stipulation in a CBA based on this provision of the Labor Code is commonly known as the “union security clause.” (Slord Development Corporation v. Noya, G.R. No. 232687 04 February 2019)

[A union security clause] imposes upon the workers the obligation to join and maintain membership in the company’s recognized union as a condition for employment. (PICOP Resources, Incorporated (PRI) v. Dequilla, G.R. No. 172666, 07 December 2011)

“Union security” is a generic term, which is applied to and comprehends “closed shop,” “union shop,” “maintenance of membership” or any other form of agreement which imposes upon employees the obligation to acquire or retain union membership as a condition affecting employment. There is union shop when all new regular employees are required to join the union within a certain period as a condition for their continued employment. There is maintenance of membership shop when employees, who are union members as of the effective date of the agreement, or who thereafter become members, must maintain union membership as a condition for continued employment until they are promoted or transferred out of the bargaining unit or the agreement is terminated. A closed-shop, on the other hand, may be defined as an enterprise in which, by agreement between the employer and his employees or their representatives, no person may be employed in any or certain agreed departments of the enterprise unless he or she is, becomes, and, for the duration of the agreement, remains a member in good standing of a union entirely comprised of or of which the employees in interest are a part. (Inguillom v. First Philippine Scales, Inc., G.R. No. 165407, 05 June 2009)

This is consistent with the State policy to promote unionism to enable workers to negotiate with management on an even playing field and with more persuasiveness than if they were to individually and separately bargain with the employer. Thus, the law has allowed stipulations for “union shop” and “closed shop” as means of encouraging workers to join and support the union of their choice in the protection of their rights and interest vis-a-vis the employer. (Slord Development Corporation v. Noya, supra.)

However, in terminating the employment of an employee by enforcing the union security clause, the employer needs to determine and prove that: (1) the union security clause is applicable; (2) the union is requesting for the enforcement of the union security provision in the CBA; and (3) there is sufficient evidence to support the decision of the union to expel the employee from the union. These requisites constitute just cause for terminating an employee based on the union security provision of the CBA. (PICOP Resources, Incorporated v. Tañeca, G.R. No. 160828, 09 August 2010)

1) Exception: Religious objectors

VICTORIANO v. ELIZALDE ROPE WORKERS’ UNION, G.R. No. L-25246, 12 September 1974

⦁ [T]he free exercise of religious profession or belief is superior to contract rights. In case of conflict, the latter must, therefore, yield to the former. The Supreme Court of the United States has also declared on several occasions that the rights in the First Amendment, which include freedom of religion, enjoy a preferred position in the constitutional system.  Religious freedom, although not unlimited, is a fundamental personal right and liberty,  and has a preferred position in the hierarchy of values. Contractual rights, therefore, must yield to freedom of religion. It is only where unavoidably necessary to prevent an immediate and grave danger to the security and welfare of the community that infringement of religious freedom may be justified, and only to the smallest extent necessary to avoid the danger.

⦁ The primary effects of the exemption from closed shop agreements in favor of members of religious sects that prohibit their members from affiliating with a labor organization, is the protection of said employees against the aggregate force of the collective bargaining agreement, and relieving certain citizens of a burden on their religious beliefs; and by eliminating to a certain extent economic insecurity due to unemployment, which is a serious menace to the health, morals, and welfare of the people of the State, [R.A. 3350] also promotes the well-being of society. It is our view that the exemption from the effects of closed shop agreement does not directly advance, or diminish, the interests of any particular religion. Although the exemption may benefit those who are members of religious sects that prohibit their members from joining labor unions, the benefit upon the religious sects is merely incidental and indirect. The “establishment clause” (of religion) does not ban regulation on conduct whose reason or effect merely happens to coincide or harmonize with the tenets of some or all religions. The free exercise clause of the Constitution has been interpreted to require that religious exercise be preferentially aided.

⦁ It would not be amiss to state, regarding this matter, that to compel persons to join and remain members of a union to keep their jobs in violation of their religious scrupples, would hurt, rather than help, labor unions, Congress has seen it fit to exempt religious objectors lest their resistance spread to other workers, for religious objections have contagious potentialities more than political and philosophic objections.

⦁ Furthermore, let it be noted that coerced unity and loyalty even to the country, and a fortiori to a labor — union assuming that such unity and loyalty can be attained through coercion — is not a goal that is constitutionally obtainable at the expense of religious liberty. A desirable end cannot be promoted by prohibited means.

a) Exception to the Exception: Religious objectors forming own union

KAPATIRAN SA MEAT AND CANNING DIVISION v. CALLEJA, G.R. No. 82914, 20 June 1988

⦁ This Court’s decision in Victoriano vs. Elizalde Rope Workers’ Union,… upholding the right of members of the IGLESIA NI KRISTO sect not to join a labor union for being contrary to their religious beliefs, does not bar the members of that sect from forming their own union. The public respondent correctly observed that the “recognition of the tenets of the sect … should not infringe on the basic right of self-organization granted by the constitution to workers, regardless of religious affiliation.”

4. Non-abridgment of right to self-organization

It shall be unlawful for any person to restrain, coerce, discriminate against or unduly interfere with employees and workers in their exercise of the right to self-organization. Such right shall include the right to form, join, or assist labor organizations for the purpose of collective bargaining through representatives of their own choosing and to engage in lawful concerted activities for the same purpose for their mutual aid and protection, subject to the provisions of Article 264 of this Code.(Article 266, P.D. 442, Labor Code)

5. No court injunction

No temporary or permanent injunction or restraining order in any case involving or growing out of labor disputes shall be issued by any court or other entity, except as otherwise provided in Articles 218 and 264 of this Code. (Article 266, P.D. 442, Ibid.)

References

⦁ International Labor Organization (ILO) Convention No. 87, Freedom of Association and Protection of the Right to Organise Convention, 1948

⦁ Book V, Presidential Decree No. 442, a.k.a. Labor Code of the Philippines

⦁ Book V, Omnibus Rules Implementing the Labor Code

⦁ DOLE Department Order No. 40, Series of 2003

⦁ DOLE Department Order No. 40-A-I, Series of 2003

⦁ DOLE Department Order No. 40-B, Series of 2003

⦁ DOLE Department Order No. 40-C, Series of 2004

⦁ DOLE Department Order No. 40-D, Series of 2005

⦁ DOLE Department Order No. 40-F-3, Series of 2008

⦁ DOLE Department Order No. 40-G-03, Series of 2010

⦁ DOLE Department Order No. 40-I, Series of 2015

⦁ DOLE Department Order No. 15, Series of 2015

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/Updated: February 10, 2023