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KEYCODE BAYER #105

November 2003

EMPLOYEES UNION OF BAYER PHILIPPINES (FEDERATION OF FREE WORKERS) COMPLAINT against BAYER PHILIPPINES, INC. (subsidiary of Bayer AG, Germany) on BREACH OF OECD GUIDELINES ON MULTINATIONAL ENTERPRISES

Summarized version of the Complaint raised to the National Contact Point (NCP) of the Federal Republic of Germany

LEGAL BASIS OF THE COMPLAINT

A. Violations of Collective Bargaining Agreement (CBA) and Law :

1. The CBA 1997- 2001 executed by / between Bayer Philippines and EUBP-FFW;
2. Republic Act # 6715, the law that regulate labor relations in the Philippines.

B. Breach of O.E.C.D. Guidelines on multinational enterprises

C. Multinational enterprises' respect of laws in host countries where they operate business; and should observe the OECD guidelines as basis of their standards of good corporate behavior and practices.

THE PARTIES

I. LABOR UNION : Employees Union of Bayer Philippines (EUBP-FFW)

a. 1991-1995 / 1996, the initial CBA term equivalent to six (6) years labor contract;
b. 1997-2001, the second CBA term equivalent to five (5) years re-newed labor contract.

II. COMPANY: Bayer Philippines, Inc.(BPI)

III. INTERVENOR: Reformed Employees Union of Bayer Philippines (REUBP)

ISSUES AND FACTS

A. Execution of CBA's:

B.BPI's Interference in Workers' Affairs; Violations of CBA 1997-2001 and Violations of Labor Law:

B.I Interference in Workers' Affairs:

In August 3, 1998, BPI sponsored a symposium / seminar attended by management's obliged workers mostly members of EUBP-FFW. The seminar was about the scare of communism in the labor movement, purposely to discourage membership in union. It also articulated that, "joining a union does not bring good things to a member-worker, anyway salary increases and good benefits come from the company not from the union". As a result of this seminar, many worker-members were frightened and expressed disaffiliation from EUBP-FFW.
This act is unlawful for an employer to interfere with, restrain or coerce employees in the exercise of their right to self-organization, as stipulated in section (a), Article 248 / Labor Code of the Philippines.

B.2 Violations of CBA 1997- 2001:

In addition to the non-remittance of union dues of BPI since August 1998 up to the present to EUBP-FFW as stipulated in section (2) Article III of existing CBA 1997-2001, BPI did not implement benefits of members and obligations with EUBP-FFW under the provisions of said CBA, such as:

a. union leave to members, section (4) / Article X;
b. retirements benefits, section (3), Article XII;
c. hospitalization plan, section (1), Article IX;
d. job description of all rank and file employees in the bargaining unit, section 5(b), Article II;
e. names of new hired employees, section (4), Article II;
f. bulletin board provision for Union use, section (7), Article V;
g. medical, dental & optical benefits, section (2), Article IX;
h. grievance machinery, section (1) and (2), Article XV;
i. non-recognition of EUBP-FFW as the sole and exclusive bargaining representative of their workers during the lifetime of existing CBA, section (1) Article I;
j. refusal to consult EUBP-FFW as the legitimate representative of affected workers on its redundancy program in August 2002, section (1) Article I;
k. refusal to bargain during the renegotiation of CBA for the last remaining two years of 2000-2001, section (2) Article XVIII

B.3 Violations of Labor Code of the Philippines / Law, R.A # 6715:

1. BPI outright direct recognition of REUBP as a labor union, representing its rank-and-file workers despite organizational illegitimacy stipulated in Article # 234; and its non-majority representation of the bargaining unit required in Article # 255;

2. BPI CB negotiation and execution of CBA 2000-2002 with REUBP when there is an existing and a current CBA 1997-2001 with EUBP - FFW. A violation to the contract-bar-rule principle, Article # 232, Article # 253 and Article 253-A.

3. BPI refusal to bargain collectively during the lifetime of the existing CBA despite appropriate notice has been made. This includes settlement of grievances through grievance machinery agreed by the parties under the provisions of CBA; and, the renegotiation of the last two (2) years of existing CBA. A violation of Article 253 of Labor Code;

4. BPI interference in the worker's affairs, by sponsoring a communist scare seminar for EUBP-FFW members. A prohibited act under section (a), Article 248 / Labor Code;

5. BPI violations of CBA 1997-2001 and its refusal to bargain collectively in renegotiation with the legitimate bargaining agent. Acts prohibited under Article 253; section (g) and section (i), Article 248 / Labor Code;

6. BPI refusal to consult legitimate worker's representative on management's actions on its redundancy program affecting workers. This worker's participation in decision-making policy in matters affecting their rights and welfare are enshrined in many international norms, including Article 255, Labor Code of the Philippines.

7. BPI management directly funded the activities and operations of the REUBP.

C. Decisions of the Labor Courts (DOLE), Court of Appeals (CA) and the Supreme Court (SC) on the case filed by EUBP-FFW. (Note: Except for some cases pending in courts filed by EUBP-FFW against BPI, the court's decisions below represent the "resolution" of the bargaining representation issue of the bargaining unit of BPI between EUBP-FFW and REUBP, where the former was adjudged with finality by SC as the rightful bargaining representative which BPI until now do not recognize.)

1. June 16, 2000 - The BLR-DOLE, on case : NCR-OD-9903-004-IRD / BLR-A-TR-13-17-2-00 issued a decision. The dispositive portion, states: "WHEREFORE, the decision of the Regional Director dated 26 January 2000 is hereby REVERSED AND SET ASIDE, except for that portion dismissing the prayer to expel appellees which is hereby AFFIRMED. Accordingly, the status quo prior to the inception of the dispute shall be respected by the parties, with the employer hereby directed to respect the authority of the duly-elected incumbent officers in relation to the administration of the existing CBA.
SO DECIDED."

This was the decision of BLR-DOLE in favor of EUBP-FFW. It validates the legitimacy of EUBP-FFW as the certified, sole and exclusive bargaining representative of all the rank-and-file workers of BPI, and on the other hand, it illegalized the existence of REUBP.

2. July 25, 2001 - BLR-NCR / DOLE issued a decision on case no. NCR-OD-9906-010-IRD. The decision stated, that : "the acts of the respondents (REUBP) were invalid as they failed to observe requirements provided for under Article 241 of the labor code. Additionally, it said, "the respondent (REUBP) faction cannot be given recognition as a legitimate labor organization with all the rights and obligations appurtenant thereto as it is not duly registered".

This decision confirmed REUBP was not a registered labor organization and being as such, all its acts and undertakings as a labor union were invalid under the labor law.

3. August 23, 2000 - An "Entry of Judgment" was subsequently issued by BLR- DOLE on the case BLR-NCR-OD-9903-004-IRD (BLR-A-TR-13-17-2-00).
It certified the June 16, 2000 decision on the case and the same became final and executory on 01 July 2000. Thus it was recorded in the book of entries of Judgments.
The issuance of entry of judgment by BLR-DOLE makes the decision final and executory, and therefore, becomes moot and academic for the parties to implement.
4. November 9, 2001 - The CA issued a decision on the case CA G.R. 60648 SP (BLR-A-TR-13-17-2-00), from the appeal filed by REUBP of the previous decision issued by BLR- DOLE.
The Court argued and came to resolved the issue by simply dismissing the petition of appeal. This resolution affirmed the decision of BLR-DOLE in favor of EUBP-FFW.
5. May 23, 2002 - The CA issued a resolution on the case CA G.R. 60648 SP (BLR-A-TR-13-17-2-00) on the "Motion for Reconsideration" (MR) filed by REUBP on the dismissed petition of appeal. Again, the Court resolved the MR. The dispositive portion, states : "WHEREFORE, the motion for reconsideration dated 29 November 2001 petitioners is hereby DENIED. SO ORDERED".
6. September 18, 2002 - The SC issued its resolution on case G.R. No. 153897 of the appealed decision of the Court of Appeals on case CA G.R. 60648 SP. ( Appeal for Certiorari filed with SC by REUBP from the resolution of CA favoring EUBP-FFW).
The minute resolution upheld the resolution of CA on the case and further, resolved to deny REUBP's petition.
7. November 18, 2002 - The SC issued its resolution with finality on case, G.R. No. 153897 for the "MR" filed by REUBP with the SC on the denied petition for review on certiorari previously filed by them. The dispositive portion, reads : "Acting on the motion of the Petitioners for reconsideration of the resolution of September 18, 2002 which denied the petition for review on certiorari and considering that there is no substantial argument to warrant a modification of this Court's resolution, the Court resolves to DENY reconsideration with FINALITY."

8. December 12, 2002 - The SC issued Entry of Judgment effective on this date. It reads : It certify that on September 18, 2002 a resolution rendered in the above entitled case filed in their office and that the same has, on December 12, 2002 become final and executory and was hereby recorded in the Book of Entries of Judgments.
With this decision of the SC, the contested Workers-representation in BPI finally put to rest in favor of EUBP-FFW as the certified bargaining representative of all the rank-and-file workers of BPI.

9. April 28, 2003 - The DOLE issued a "Writ of Execution" enforcing the SC resolution/decision of the case no. NCR-OD-9903-004-LRD ( BLR- ATR-13-17-2-00) in November 18, 2002 . This writ of execution was addressed to: THE SHERIFFS, BLR-NCR-DOLE. The dispositive portion, reads as follows: "NOW THEREFORE, you are hereby required to enforce this writ according to its terms. You are commanded to proceed to the premises of Bayer Philippines, Inc. (establishment) with principal office address at Equitable Bank Corporation Building (EBC), Ortigas Ave., Greenhills, San Juan, Metro-Manila and require the establishment to:

a) respect the authority of the duly elected incumbent officers (J. Facundo group) in relation to the administration of the existing collective bargaining agreement; and,
b) remit the August 1998 to March 2003 union dues of TWO MILLION SEVEN HUNDRED THIRTY SEVEN THOUSAND TWO AND 71/100 (P 2, 737,002.71) to the EMPLOYEES UNION OF BAYER PHILIPPINES and FEDERATION OF FREE WORKERS divided equally.
SO ORDERED." (

10. May 22, 2003 - The Sheriff served the Writ of Execution to the Respondents and BPI office located in Canlubang, Calamba, Laguna. BPI, by its representative received the writ, however, refused to sign the Order.

11. BPI, instead of complying to the lawful order of the Court, through Counsel, questioned the legality of the writ of execution issued by BLR-DOLE and moved to quash and annul the writ. This motion was filed on May 23, 2003.
Despite of BPI commitment to abide by any final judgment of a competent authorities to whoever adjudged the rightful representative of its rank -and-file employees, BPI failed to honor it.

12. July 14, 2003 - The BLR-DOLE issued a "Resolution" on the motion to quash writ of execution filed by BPI. The Court denied such motion and argues that:

a. The motion was devoid of merit;
b. While BPI was never a party to the case, the same being an intra-union dispute, a fundamental issue therein is the entitlement of a group to administer the union dues collected by the Company, from its employees, which therefore should make it a party-in-interest;
c. BPI through its Human Resource Manager, manifests willingness to abide by the judgment of BLR-DOLE as well as the higher Courts;
d. the monies being levied upon is not a property of BPI, but are the union dues of the employee-members which it had collected and held in trust for the latter;
e. The dispositive portion of the resolution, reads as follows :
" WHEREFORE, premises considered, this motion to quash writ of execution is hereby DENIED for lack of merit. SO RESOLVED".

13. BPI continuously defies the Order of the Court, by further filing "motion for reconsideration". BPI actions against the Order, only proved to :

CONCLUSION

I. EUBP-FFW remains the legitimate bargaining representative of all the rank-and-file workers of BPI with an existing valid labor contract with the Company, CBA 1997-2001.

The representation of EUBP-FFW relative to all the rank-and-file workers of BPI has no interruption since it was certified in 1990 up to the present as established by the following facts and legal authorities:

II. REUBP is an illegitimate labor organization in fact and in law, as found by Courts and labor administrative (quasi-judicial) bodies on the following grounds:

a) not registered with BLR-DOLE;
b) not entitled to the rights and privileges as a labor union under the labor law;
c) all acts were invalid and unlawful;
d) does not have majority representation of BPI's bargaining unit it seeks to represent, only 26.8% representing membership;
e) leaders not chosen by majority members of the bargaining unit, therefore unauthorized in any undertakings with the Company in behalf of the entire workers;
f) garnered 23.77% of votes cast in certification election on June 30, 2003 to choose for the representative of BPI bargaining unit.

III. BPI violated provisions of CBA 1997-2001; violated labor laws, to wit:

a) from the above presentations, BPI grossly violated CBA provisions. From the grievances filed with BPI, no single opportunity of meeting the Worker's representative to settle such violations raised by EUBP-FFW from August 1998 to June 2003.

b) BPI violated labor law, such as:

IV. BPI violated O.E.C.D. Guidelines on multinational enterprises, particularly, section 1(a), section 7 and section 8 : the freedom of association, and the right to collective bargaining; including section 2(a), 2(c); section 4(a); section 6; of Item IV of the guidelines, the Employment and industrial relations.

V. On the basis of good faith, prudent dictates that, BPI should have passed legal and practical criteria to REUBP as a labor union before finally deciding to recognized it, such as:

a) the absence of credible organizational legitimacy - as a precondition to CB negotiation, a labor union should have been registered with BLR-DOLE to acquire legitimacy;

b) the absence of proof showing a majority representation in the bargaining unit - the bargaining representative must be selected by the majority members of the bargaining unit it seeks to represent, the same is true with the authority requirements from the members to said representative in order to undertake CB negotiations in their behalf.

End of Summary
EUBP-FFW Complaint against Bayer Philippines, Inc. on Breach of O.E.C.D. Guidelines on multinational enterprises

Employees Union of Bayer Philippines