Sole and exclusive bargaining agent (SEBA)

“Exclusive Bargaining Representative” – refers to a legitimate labor union duly recognized or certified as the sole and exclusive bargaining representative or agent of all the employees in a bargaining unit.

1. Concept

“Exclusive Bargaining Representative” – refers to a legitimate labor union duly recognized or certified as the sole and exclusive bargaining representative or agent of all the employees in a bargaining unit. (Section 1[u], Rule I, DOLE Department Order No. 40, Series of 2003, as amended by A-I)

The Exclusive Bargaining Representative is also known as the Sole and Exclusive Bargaining Agent (“SEBA”)

2. Determination of SEBA

The determination of an exclusive bargaining agent shall be through:

1) Request for sole and exclusive bargaining agent (SEBA) certification in cases where there is only one legitimate labor organization operating within the bargaining unit; or

2) Through certification, run-off or consent election as provided in these Rules. (Section 2, Rule VI, DOLE Department Order No. 40, Series of 2003, as amended by A-I)

NB:

1) Previously, jurisprudence and older regulations recognize voluntary recognition by the employer as a mode of determining the SEBA. However, as quoted in the immediately preceding paragraph, current DOLE regulation does not anymore recognize voluntary recognition via the employer.

2) As explained in the case below, the employer has no business nor power to declare any union to the SEBA for collective bargaining purposes as it is exclusive prerogative of the workers whether or not they want to be represented and, if they do, who will represent them.

SMP-PIILU-TUCP v. SECRETARY OF LABOR, G.R. No. 107792, 02 March 1998

⦁ [The Company] should not have given its voluntary recognition to SMP-PIILU-TUCP when the latter asked for recognition as exclusive collective bargaining agent of the employees of the company. The company did not have the power to declare the union the exclusive representative of the workers for the purpose of collective bargaining.

⦁ Indeed, [the Union’s] contention runs counter to the trend towards the holding of certification election. By virtue of Executive Order No. 111, which became effective on March 4, 1987, the direct certification previously allowed under the Labor Code had been discontinued as a method of selecting the exclusive bargaining agents of the workers. Certification election is the most effective and the most democratic way of determining which labor organization can truly represent the working force in the appropriate bargaining unit of a company.

a. Request for SEBA certification

Any legitimate labor organization may file a request for SEBA certification. (Section 1, Rule VII, DOLE Department Order No. 40, Series of 2003, as amended by A-I)

More: Request for sole and exclusive bargaining agent

b. Certification, run-off or consent election

“Certification election” – is the process of determining the sole and exclusive bargaining agent of the employees in an appropriate bargaining unit for purposes of collective bargaining. (National Union of Workers in Hotels v. DOLE Secretary, G.R. No. 181531, 31 July 2009)

“Certification Election” or “Consent Election” – refers to the process of determining through secret ballot the sole and exclusive representative of the employees in an appropriate bargaining unit for purposes of collective bargaining or negotiation. A certification election is ordered by the Department, while a consent election is voluntarily agreed upon by the parties, with or without the intervention by the Department. (Section 1[i], DOLE Department Order No. 40, Series of 2003, as amended by A-I)

Consent and certification election… is a mode whereby the members of the bargaining unit decide whether they want a bargaining representative and if so, who they want it to be. The difference between a consent election and a certification election is that the conduct of a consent election is agreed upon by the parties to the petition while the conduct of a certification election is ordered by the Med-Arbiter. (See Lepanto Consolidated Mining Company v. The Lepanto Capataz Union, supra.)

“Run-off Election” – refers to an election between the labor unions receiving the two (2) highest number of votes in a certification or consent election with three (3) or more choices, where such a certified or consent results in none of the three (3) or more choices receiving the majority of the valid votes cast; provided that the total number of votes for all contending unions is at least fifty percent (50%) of the number of votes cast. (Section 1[uu], DOLE Department Order No. 40, Series of 2003, as amended by A-I)

More: Certification election, Run-off election, Consent election

5. Employee’s right t o vote

The significance of an employee’s right to vote in a certification election cannot thus be overemphasized. For he has considerable interest in the determination of who shall represent him in negotiating the terms and conditions of his employment. (Ibid.)

a. Employment status, irrelevant

In a certification election, all rank and file employees in the appropriate bargaining unit, whether probationary or permanent are entitled to vote. This principle is clearly stated in Art. 255 of the Labor Code which states that the “labor organization designated or selected by the majority of the employees in an appropriate bargaining unit shall be the exclusive representative of the employees in such unit for purposes of collective bargaining.” Collective bargaining covers all aspects of the employment relation and the resultant CBA negotiated by the certified union binds all employees in the bargaining unit. Hence, all rank and file employees, probationary or permanent, have a substantial interest in the selection of the bargaining representative. The Code makes no distinction as to their employment status as basis for eligibility in supporting the petition for certification election. The law refers to “all” the employees in the bargaining unit. All they need to be eligible to support the petition is to belong to the “bargaining unit.” (Airtime Specialist, Inc. v. Ferrer-Calleja, G.R. No. 80612-16, 29 December 1989)

NATIONAL UNION OF WORKERS IN HOTELS v. DOLE SECRETARY, G.R. No. 181531, 31 July 2009

⦁ The relevant issues for resolution then are first, whether employees on probationary status at the time of the certification elections should be allowed to vote, and second, whether HIMPHLU was able to obtain the required majority for it to be certified as the exclusive bargaining agent.

⦁ On the first issue, the Court rules in the affirmative.

⦁ The inclusion of Gatbonton’s vote was proper not because it was not questioned but because probationary employees have the right to vote in a certification election. The votes of the six other probationary employees should thus also have been counted…

⦁ The provision in the CBA disqualifying probationary employees from voting cannot override the Constitutionally-protected right of workers to self-organization, as well as the provisions of the Labor Code and its Implementing Rules on certification elections and jurisprudence thereon.

⦁ A law is read into, and forms part of, a contract. Provisions in a contract are valid only if they are not contrary to law, morals, good customs, public order or public policy.

⦁ In light of the immediately-quoted provisions, and prescinding from the principle that all employees are, from the first day of their employment, eligible for membership in a labor organization, it is evident that the period of reckoning in determining who shall be included in the list of eligible voters is, in cases where a timely appeal has been filed from the Order of the Med-Arbiter, the date when the Order of the Secretary of Labor and Employment, whether affirming or denying the appeal, becomes final and executory.

6. Appeal from Certification Election Orders

Any party to an election may appeal the order or results of the election as determined by the Med-Arbiter directly to the Secretary of Labor and Employment on the ground that the rules and regulations or parts thereof established by the Secretary of Labor and Employment for the conduct of the election have been violated. Such appeal shall be decided within fifteen (15) calendar days. (Article 272, P.D. 442, Labor Code)

7. Employer as Bystander

The “Bystander Rule” is already well entrenched in this jurisdiction. It has been consistently held in a number of cases that a certification election is the sole concern of the workers, except when the employer itself has to file the petition pursuant to Article 259 of the Labor Code, as amended, but even after such filing its role in the certification process ceases and becomes merely a bystander. The employer clearly lacks the personality to dispute the election and has no right to interfere at all therein. This is so since any uncalled-for concern on the part of the employer may give rise to the suspicion that it is batting for a company union. Indeed, the demand of the law and policy for an employer to take a strict, hands-off stance in certification elections is based on the rationale that the employees’ bargaining representative should be chosen free from any extraneous influence of the management; that, to be effective, the bargaining representative must owe its loyalty to the employees alone and to no other. (Holy Child Catholic School v. Sto. Tomas, En Banc, G.R. No. 179146, 23 July 2013)

In all cases, whether the petition for certification election is filed by an employer or a legitimate labor organization, the employer shall not be considered a party thereto with a concomitant right to oppose a in such proceedings shall be limited to:

1) Being notified or informed of petitions of such nature; and,

2) Submitting the list of employees during the pre-election conference should the Med-Arbiter act favorably on the petition. (Article 271, Ibid.)

Basic in the realm of labor union rights is that the certification election is the sole concern of the workers, and the employer is deemed an intruder as far as the certification election is concerned. Thus, the [employer] lacked the legal personality to assail the proceedings for the certification election, and should stand aside as a mere bystander who could not oppose the petition, or even appeal the Med-Arbiter’s orders relative to the conduct of the certification election. (The Heritage Hotel Manila v. DOLE Secretary, G.R. No. 172132, 23 July 2014)

Except when it is requested to bargain collectively, an employer is a mere bystander to any petition for certification election; such proceeding is non-adversarial and merely investigative, for the purpose thereof is to determine which organization will represent the employees in their collective bargaining with the employer. The choice of their representative is the exclusive concern of the employees; the employer cannot have any partisan interest therein; it cannot interfere with, much less oppose, the process by filing a motion to dismiss or an appeal from it; not even a mere allegation that some employees participating in a petition for certification election are actually managerial employees will lend an employer legal personality to block the certification election. The employer’s only right in the proceeding is to be notified or informed thereof. (Republic v. Kawashima Textile Mfg., Philippines, Inc., G.R. No. 160352, 23 July 2008)

a. When an employer may file petition

When requested to bargain collectively, an employer may petition the Bureau of Labor Relations (“Bureau”) for an election. If there is no existing certified collective bargaining agreement in the unit, the Bureau shall, after hearing, order a certification election. (Article 270, Ibid.)

All certification cases shall be decided within twenty (20) working days. (Ibid.)

The Bureau shall conduct a certification election within twenty (20) days in accordance with the rules and regulations prescribed by the Secretary of Labor. (Ibid.)

References

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

/Updated: February 15, 2023

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