28-30 september 2015 fontana hotel, clark special economic zone, pampanga atty. benedicto ernesto r....

TRIPARTITE WORKSHOP ON ENTERPRISE-LEVEL SOCIAL DIALOGUE AND

COLLECTIVE BARGAINING 28-30 September 2015

Fontana Hotel, Clark Special Economic Zone, Pampanga

ATTY. BENEDICTO ERNESTO R. BITONIO JR.Consultant

Outline

I. Concepts, principles and practice of social dialogue (SD) and collective bargaining (CB)

II. Context of negotiation and CBIII. Interest-based negotiation (IBN)

and its application to CBIV. Notes on conflict and negotiation

techniques V. Planning for CB

SD & CB at the Enterprise/BERBitonioJr

Part I. Concepts, principles and practice


SWOT exercise

Negotiation and

collective bargaining

Share your experience

What is SD

What is SD

SD is engagement, participation and collaboration among partners. It includes –• All types of negotiation, consultation or

exchange of information • Between or among, representatives of

governments, employers and workers • On issues of common interest relating to - ▪ economic and social policy▪ productivity and terms and conditions of

employment ▪ welfare and well-being of workers.


An expanded term for a familiar concept

ILO started using SD in 1998 as one of the four pillars of its DECENT WORK agenda. But SD processes such as NEGOTIATION,

CONSULTATION or EXCHANGE OF INFORMATION, and TRIPARTISM have been practiced for a long time in many countries, including in the Philippines . . .

. . . as a strategic and democratic approach of promoting harmonious and productive relations between workers and employers.


SD is part of the country’s industrial relations system

Institutionalized and embedded in the IR system - ILO Conventions 87, 98, and 144, which the Philippines

ratified Constitution, which recognizes the rights to self-

organization and collective bargaining, workers’ participation, just sharing in the fruits of production, and reasonable returns on investments for employers.

Labor Code, as amended, thru free trade unionism, enterprise level collective bargaining and, beyond the enterprise level, tripartism.


SD is a common practice in enterprises, in obligatory and voluntary forms

As when workers and employers,• As a matter of obligation and duty,

engage in collective bargaining, negotiate, conclude and administer a CBA, or solve differences thru the grievance mechanism.

• Or voluntarily set up communication and problem solving mechanisms, such as LMCs, general assemblies and the like, whether or not the employees in the enterprise are represented by a union


SD is practiced in similar forms outside enterprises

It mostly takes place in tripartite bodies, as when representatives of workers, employers and government –• Decide minimum wage adjustments (RTWPBs)• Adjudicate appeals (NLRC proper)• Decide on policy matters (NWPC, TESDA, POEA,

OWWA, SSS)• Formulate policy recommendations (TIPC, TVAC)• Settle cases thru conciliation and mediation

(DOLE’s SEADOs, NCMB, NLRC)• Affirm commitment to good principles (ITCs)


Worksheet 1 (individual activity): two-step assessment of SD mechanisms

First step: process involved and level of development

Second step: sharing your SD experience


Negotiation is the most developed process of SD

Negotiation is a process by which two or more parties seek to exchange with each other or among themselves things that they respectively value under terms and conditions mutually acceptable to all concerned. May or may not lead to an agreement to

exchange Always involves decision-making by the parties,

jointly and on their own or facilitated by a third person if they come to an agreement, separately if they don’t.


Collective bargaining is SD

Collective bargaining (CB) is a special type of negotiation governed by law - Where employees and their employer,

thru their representatives, negotiate and come to an agreement . . .

on terms and conditions of employment . . . and the mechanism to administer the

agreement and to resolve disputes or differences arising from it.


Collective bargaining is SD

CB is the most institutionalized process of SD, in the Philippines and elsewhere - Formally promoted as a State policy Recognized by law as a protected right and governed

by special procedures Subsumes exchange of information and consultation Regarded as the highest level of employee

participation in the workplace in policy and decision making processes directly affecting employees.

Enables parties to reach agreements with the force of law and with binding effects


State promotes CB by enabling parties to exercise FoA and CB rights

By giving parties freedom and responsibility to set rules to govern their relationship, consistent with principles of fairness, equity and necessity.

By providing legal recognition and protection to FoA and CB rights

By prohibiting unfair labor practices and prescribing sanctions against such practices.

By providing for an orderly procedure to form unions and to engage in CB.

By regulating the exercise of bargaining rights.


State promotes CB by limiting the role of the State in CB

The State may not intervene in the exercise by the parties of their CB rights. Role of the State is to -

Set minimum labor standards or terms and conditions of employment

Organize the bargaining process Prescribe standards of bargaining behavior Provide a mechanism for dispute settlement

in case the parties fail to reach an agreement or violate the standards of bargaining behavior


Worksheet 2 (individual activity) : SWOT analysis for CB STRENGTHS. What internal factors (i.e.,

policies, values, nature of business) in the Company and in the Union can facilitate agreement for a a new CBA?

WEAKNESSES. What internal factors in the Company and in the Union can hinder or prevent the parties from agreeing to a new CBA by themselves?

OPPORTUNITIES. What external factors (i.e., economic and business conditions, government regulation or assistance) can facilitate the agreement of the parties for a new CBA?

THREATS. What external factors can hinder or prevent the parties from agreeing to a new CBA by themselves?


Part II. Context of negotiation and CB


Role play: positional bargaining

CB as a way to manage

diverse interests

Pluralism and the political

context of CB

Some notes on political pluralism

Society is made up of many distinct groups.

Each group has its own interests. Interests are the needs and wants

which the group needs to be satisfied at an acceptable level in order to be content.

The interests of one group may be mutual, common, separate or conflicting with other groups.

The rational behavior of each group is to protect, advance and maximize its own interests.


Industrial and employment relations is a mirror of political pluralism Workers and employers are the distinct

groups. They have their own set of interests. Some

are mutual or common, others separate or conflicting.

To manage these interests, the State follows the mixed regulation model of industrial relations – Minimum labor standards which provide

for minimum levels of protection, entitlements and benefits to workers

FoA and CB to improve on the minimum labor standards

Thus, CB is a way to manage diverse interests.


Role Play 1: positions and interests


Take it

. . .

or leave it

Position is how a party states the conflict should be resolved.

Interest is the essential underlying concern that motivates a party

to choose a position.

Worksheet 3 (group activity): What did we learn?

Defining ISSUES Identifying POSITIONS Recognizing INTERESTS Converting POSITIONS to INTERESTS Generating OPTIONS and

ALTERNATIVES


Part III. Interest-based negotiation (IBN)


Role plays:

applications

What is IBN:

theories and

principles

Setting the stage

Worksheet 4 (group activity): Setting the stage

Oil pricing exercise


CB = Process + Output + Outcome PROCESS: workers and employers, thru their

representatives, negotiate and agree on Terms and conditions of employment, and The mechanism to administer the agreement and resolve

disputes or differences arising from it. OUTPUT: Collective Bargaining Agreement (CBA) OUTCOME:

Fair terms and conditions of employment Industrial peace and stability Increased productivity Effective employee participation Shared responsibility


IBN is a technique

An established technique for negotiation in which the parties meet to identify and discuss the issues and attempt to arrive at a mutually acceptable solution. It is a positive effort by the parties to resolve a dispute in collaboration rather than competition. The main focus is to negotiate on common interests of the parties rather than their relative power or position. It helps to reduce the importance of how the dispute occurred. It creates options that satisfy both mutual and individual interests. Interest based negotiations are also referred to as principled or win-win negotiations or interest based bargaining. This informal process is one of the most important methods of dispute resolution.


IBN shifts the focus of negotiationtoward common interest and mutual gainsPOSITION-BASED

We are dividing a pie of a fixed size and every slice I give is a slice I do not get. Thus, I need to claim as much value as possible by giving as little as possible.

Objective is to maximize self-interest (Rational choice) Start high/low, concede

slowly Exaggerate value of

concessions Argue forcefully Ridicule, attack, intimidate I win, you lose.

IBN

Negotiation is expanding the pie and creating more value. What can the other person accept which, if I were in his or her shoes, I would also accept?

Objective is to create mutual gains (Strategic choice) Inventiveness,

cooperation Joint-problem solving Creating/improving a

relationship Exploring mutually held

norms and principles


But IBN is equally useful in resolving conflicting interests• Thus –• The main focus is to negotiate on

common interests of the parties rather than their relative power or position.

• But -• IBN is equally useful in resolving

conflict, or a situation when the interest/s of one or more persons or groups are or seem be in opposition to the interest/s of some other person(s) or group(s).


IBN steps and techniques

Separate the people from the problem. Attack the problem, not each other.

Focus on interests rather than positions. Don’t confuse people's stated positions with their underlying interests. Positions often tend to obscure what people truly hope to gain thru negotiation.

Generate a variety of options before deciding what to do. Develop a wide range of possible solutions as part of the negotiating process. These possible solutions should attempt to advance shared interests and reconcile differences.

Base the result on objective and fair criteria.


Some useful and practical terms ISSUES are the problems or matters that

need to be addressed by the parties. OPTIONS are courses of action that can be

pursued simultaneously ALTERNATIVES are courses of action that

are mutually exclusive Viable OPTIONS and ALTERNATIVES are

those which have a value to the other party and are not illegal

“TRADEABLES” are options or alternatives which can be exchanged to get concessions


What if negotiation does not lead to an agreement? There arises a dispute, defined as an overt

manifestation of a conflict, that can can either be – an interest dispute, which involves fixing terms

and conditions of employment. In CB, this is a bargaining deadlock.

. . . or a rights dispute, which involves implementation or interpretation of terms/conditions of employment based on existing law, CBA or company personnel policies.

- involving individual employees (individual dispute) or a group of employees (collective dispute).


Applying the theories and principles(group activities)

Role Play 2. Negotiating rest days and emergencies

Role Play 3. Negotiating the scope of the bargaining unit

Role Play 4. Negotiating the rules of discipline

Role Play 5. Negotiating under exceptional conditions

Role Play 6. Negotiating wages and performance SD & CB at the Enterprise/BERBitonioJr

What did we learn? objectives of negotiation

• When workers and employers voluntarily exchange things that they respectively value, they . . .• Strengthen their respective rights• Create more mutual value out of their

common interests• Minimize the consequences of their

conflicting interests• . . . enabling them to focus on cooperation rather than on conflict or competition.


Part IV. Practical notes


Preparing to

negotiate: some tips

Notes on conflicts

and disputes

Negotiation as a

conflict resolution approach

Negotiation and CBare means to address conflicts

• Useful concepts –• A conflict is a situation when the

interest/s of one or more persons or groups are or seem be in opposition to the interest/s of some other person(s) or group(s).

• A dispute is the overt manifestation of a conflict, such as a deadlock in negotiations or a grievance.


Labor disputes

• A labor dispute is any controversy or matter concerning terms and conditions of employment or the association or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.

• A grievance is any dispute arising from the interpretation or implementation of company personnel policies, or any dissatisfaction between superiors and subordinates or between employees.


Types and sources of conflicts

Interest conflicts actual or perceived competition over substantive, procedural or psychological interests.

Structural conflicts unequal control, ownership or distribution of resources, or environmental or time constraints.

Value conflicts differing ideologies, religious beliefs, cultural norms and ethnicity.


Types and sources of conflicts


Data conflicts lack of information, misunderstanding, or differences over the interpretation or relevance of data.

Relationship conflicts

breakdown in interpersonal acceptance, liking, communications and understanding.

Policies and principlesin managing labor disputes

The preferred policy is for shared responsibility and consensual modes of dispute settlement Dialogue Collective bargaining Conciliation and mediation Voluntary arbitration


Policies and principlesin managing labor disputes

The preferred policy translates to the following sequential principles - Prevention is better than resolution. If preventive measures fail, parties

themselves should resolve the problem.

If parties cannot resolve the problem, neutral 3rd party intervention should involve the parties as much as possible.


Preparing to negotiate

Be aware and understand negotiation and conflict management styles With individual exercise

Constitute a negotiating panel whose members have the attributes of good negotiators

Know the negotiating objectivesKnow the range of the panel’s authority


Useful bargaining theories

Behavioral theory of bargaining Intra-organizational bargaining Attitudinal structuring Integrative bargaining Distributive bargaining

Bargaining range theory: negotiating wages Economic bargaining: assigning utility values

BERBitonioJr/LMC and Social Dialogue

Part V. Planning for CB


Complete the SWOT

Know your negotiatin

g goals

Worksheet 5: WHAT’S YOUR PLAN?

28-30 september 2015 fontana hotel, clark special economic zone, pampanga atty. benedicto ernesto r....

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