Republic of the Philippines ATs mh DEPARTMENT OF LABOR AND EMPLOYMENT w4e | Intramuros, Manila - : ye DEPARTMENT ORDER NO. 404-5 Series of2015| FURTHER AMENDING DEPARTMENT ORDER NO. 40, SERIES OF 2003, AMENDING THE IMPLEMENTING RULES AND REGULATIONS OF BOK V ‘OF THE LABOR CODE OF THE PHILIPPINES, AS ANENDED SECTION 1. « Pursuant to Article 5 ofthe Labor Code, as amended, Book V of the Omnibus Rules implementing the Labor Code, as amended by Department Order 40, Seri of 2003 i hereby amended a follows: SECTION 2. «Section 1 of Rule | is heroby amended adding “Abstention”,“Re-run Election" ‘and “Spoiled Balots” inthe Definition of Terms, tobe re-alphabetizsd and read a follows: RULE! DEFINITION OF TERMS Section 1. Definition of Terms 8, *ABSTENTION REFERS TO A BLANK OR UNFILLED BALLOT VALIDLY CAST BY AN ELIGIBLE VOTER. IT I NOT CONSIDERED AS A NEGATIVE VOTE. HOWEVER, SHALL BE CONSIDERED A VALID VOTE FOR PURPOSES OF DETERMINING & VALID ELECTION 4 *RERUN ELECTION” REFERS TO AN ELECTION CONDUCTED TO BREAK A TIE BETWEEN CONTENDING UNIONS, INCLUDING BETWEEN "NO UNION" AND ONE OF ‘THE UNIONS. IT SHALL LIKEWISE REFER TO AN ELECTION CONDUCTED AFTER A FAILURE OF ELECTION HAS BEEN DECLARED BY THEELECTION OFFICER ANDIOR AFFIRMED BY THE NEDIATOR-ARBITER, ‘Ww. “SPOILED BALLOT” REFERS TO A BALLOT THAT IS TORN, DEFACED, OR CONTAINS MARKINGS WHICH CAN LEAD ANOTHER TO CLEARLY IDENTIFY THE VOTER WHO CASTS SUCH VOTE. SECTION 3, - Rule Vil Voluntary Recognition, is heraby repealed and replaced by new provision entitled, "REQUEST FOR SOLE AND EXCLUSIVE BARGAINING AGENT (SEDA) CERTIFICATION", to read a flows: RULE VI [REQUEST FOR SOLE AND EXCLUSIVE BARGAINING AGENT (SEBA) CERTIFICATION SECTION 1, WHERE TO FILE. - ANY LEGITIMATE LABOR ORGANIZATION MAY FILE A [REQUEST FOR SEBA CERTIFICATION IN THE REGIONAL OFFICE WHICH ISSUED TTSCERTIFIGATE OF REGISTRATION OR CERTIFICATE OF CREATION OF CHARTERED Local. SECTION 2 REQUIREMENTS FOR REQUEST OF SEBA CERTIFICATION. — THE REQUEST FOR CERTIFICATION SHALL INDICATE: @. THE NAME AND ADDRESS OF THE ORGANIZATION; "THE NAME AND ADDRESS OF THE COMPANY WHERE IT OPERATES, THE BARGAINING UNIT SOUGHT TO BE REPRESENTED; THE APPROXIMATE NUMBER OF EMPLOYEES IN THE BARGAINING UNIT; AND THE STATEMENT OF THE EXISTENCENON-EXISTENCE OF OTHER LABOR ORGANIZATIONCBA, JESTING LEGITIMATE LABOR THE CERTIFICATE OF REGISTRATION AS DULY CERTIFIED BY THE PRESIDENT OF THE REQUESTING UNION OR CERTIFICATE OF CREATION OF CHARTERED LOGHL ‘AS DULY CERTIFIED BY THE PRESIDENT OF THE FEDERATION OF THE LOCAL SHALL BE [ATTACHED TO THE REQUEST. ‘SECTION 3. ACTION ON THE REQUEST. - WITHIN ONE (1! OAY FROM THE SUBMISSION OF THE REQUEST, THE REGIONAL DIRECTOR SHALL DETERMINE WHETHER THE REQUEST I$ CONPLANT WITH THE PRECEDING SECTION ANO WHETHER THE BARGAINING UNIT SOUGHT TO BE REPRESENTED IS ‘ORGANIZED OR NOT; AND , REQUEST A COPY OF THE PAYROLL FOR PURPOSES OF SEBA CERTIFICATION PURSUANT TO SECTION 4 OF THIS RULE. IF HE'SHE FINDS IT DEFICIENT, THE REGIONAL CIRECTOR SHALL ADVISE THE REQUESTING UNION OR LOCAL TO COMPLY WITHIN TEN (10) DAYS FROM NOTICE FAILURE TO COMPLY WITHIN THE PRESCRIBED PERIOD SHALL BE DECWED \WITHORAWAL OF THE REQUEST FOR SEBA CERTIFICATICN. ‘SECTION 4, REQUEST FOR CERTIFICATION IN UNORGANIZED ESTABLISHMENT WITH ONLY ONE (1) LEGITIMATE LABOR ORGANZATION; VALIDATION PROCEEDINGS, - IF THE REGIONAL DIRECTOR FINDS THE ESTABLISHMENT UNORGANIZED WITH ONLY (ONE LEGITIVATE LABOR ORGANIZATION, HE/SHE SHALL CALL & CONFERENCE WITHIN FIVE (6) WORK DAYS FOR THE SUBMISSION OF THE FOLLOWING: 9. THE NAMES OF EMPLOYEES IN THE COVERED BARGAINING UNIT WHO SIGNIFY THEIR SUPPORT FOR THE CERTIFICATION, PROVIDED THAT SAID EMPLOYEES COMPRISE AT LEAST MAJORITY OF THE NUMBER OF EMPLOYEES IN THE COVERED BARGAINING UNIT; AND , CERTIFICATION UNDER OATH BY THE PRESIDENT OF THE REQUESTING UNION OR. LOCAL THAT ALL DOCUMENTS SUBMITTED ARE TRUE AND CORRECT BASED ON HISIHER PERSONAL KNOWLEDGE THE SUBMISSION SHALL BE PRESUMED TO BE TRUE AND CORRECT UNLESS CONTESTED UNDER OATH BY ANY MEMBER OF THE BARGAINING UNIT DURING THE VAUDATION CONFERENCE, FOR THIS PURPOSE, THE EMPLOYER OR ANYREPRESENTATIVE OF THE EMPLOYER SHALL NOT BE DEEMED A PARTY-IN-INTEREST BUT ONLY AS A BY-STANDER TO THE PROCESS OF CERTEICATION. IF THE REQUESTING UNION OR LOCAL FAILS TO COMPLETE THE REQUIREMENTS FOR SEBA CERTIFICATION DURING THE CONFERENCE, THE REQUEST FOR SEBA CERTIFICATION SHALL BE REFERRED TO THE ELECTION OFFICER FOR THE ‘CONDUCT OF ELECTION PURSUANT TO RULE IX OF THIS RULES, SECTION 4.1. ACTION ON THE SUBMISSION. - IF THE REGIONAL DIRECTOR FINDS THE REQUIREMENTS COMPLETE, HE/SHE SHALL ISSUE CURING THE CONFERENCE. & CERTIFICATION AS SOLE AND EXCLUSIVE BARGAINING AGENT ENJOYING THE RIGHTS AND PRIVILEGES OF AN EXCLUSIVE BARGAINING AGEN” OF ALL THE EMPLOYEES IN THE COVERED BARGAINING UNT, THE REGIONAL DIRECTOR SHALL CAUSE THE POSTING OF THE SEBA CERTIFICATION FOR FIFTEEN (15) CONSECUTIVE DAYS. IN’ AT LEAST TWO (2) (CONSPICUOUS PLACES IN THE ESTABLISHMENT OR COVERED BARGAINING UNT. SECTION 42, EFFECT OF CERTIFICATION, — UPON THE ISSUANCE OF THE CERTIFICATION AS SOLE AND EXCLUSIVE BARGAINING £GENT, THE CERTIFIED UNION OR LOCAL SHALL ENJOY ALL THE RIGHTS AND PRWILEGES OF AN EXCLUSNE BARGAINING AGENT OF ALL THE EMPLOYEES IN THE COVERED BARGAINING UNIT ‘THE CERTIFICATION SHALL BAR THE FILING OF A ?ETITION FOR CERTIFICATION ELECTION BY ANY LABOR ORGANIZATION FOR & PERIOL OF ONE (1) YEAR FROM THE DATE OF ITS ISSUANCE. "UPON EXPIRATION OF THS ONEYEAR PERIOD, ANY LEGITIMATE LABOR ORGANIZATION MAY FILE A PETITION FOR CERTIFICATION ELECTION IN THE SANE BARGAINING UNIT REPRESENTED BY THE CERTIFIED LABOR ORGANIZATION, UNLESS A COLLECTIVE BARGAINING AGREEMENT. BETWEEN THE EMPLOYER AND THE CERTIFIED LABOR ORGANIZATION WAS EXECUTED. AND REGISTERED WITH THE REGIONAL OFFICE IN ACCORDANCE WITH RULE XVII OF THIS RULES, SECTION 5. REQUEST FOR CERTIFICATION IN UNORGANIZED ESTABLISHMENT WITH MORE THAN ONE (1) LEGITIMATE LABOR ORGANIZATION. - IF THE REGIONAL ORECTOR FINOS THE ESTABLISHMENT UNORGANIZED ITH MORE THAN ONE LEGITINATE LABOR ORGANIZATION, HEISHE SHALL REFER THE SANE TO THE ELECTION OFFICER FOR THE ‘CONDUCT OF CERTIFICATION ELECTION. THE CERTIFICATION ELECTION SHALL 8E CONDUCTED IN ACCORDANCE WITH ULE IX OF THIS RULES, ‘SECTION 6. REQUEST FOR CERTIFICATION IN ORGANIZED ESTABLISHMENT. - IF THE REGIONAL DIRECTOR FINDS THE ESTABLISHMENT ORGANIZED, HEISHE SHALL REFER THE SAME TO THE MEDIATORARBITER FOR THE DETERMINATION OF THE PROPRIETY SE CONDUCTING A CERTIFICATION ELECTION IN ACCORDANCE WITH RULES Vil AND IK HIS RULES, SECTION 4, - Section 1 of Rule Vil, as last amended by 0.0. 40-F-03, is hereby further amended, to read 2s follows: RULE CERTIFICATION ELECTION aSection 1, Who May File, ~ Any legate labor organiza, including @ rational union ot federaton that has issued charter etfcte to its localichepa or the localenaper sel, may fea petition fo oertitcaton election, ‘4 national union or federation fing a pettion in beha of is loclchapter stall not be ‘equited to dsclose the names ofthe localchape's offcars and members but shall tach tothe pein the cater ceria it isued its ocalohater. ‘When requested to bargain colecvel ina bargaining ait where no registered colectve bargaining agreement exists, an employer may fle a petion for cetfication ection wih the Regional fe, In all cate, whether the potion for cerfeaton elecon fled by an employer or @ legitimate labor organization, the employer shall rot be considered a party thereto with a concomitant right to oppose a pettion for cerfcaton election The employers parciation in Such proceedings shal belted to) being nied or informed of pettons of such nature. and submits te ist of empiyees dung th pre-lecbonconeance shoud the Mediator Arbor Sct favorably en th peiton, HOWEVER, MANIFESTATION OF FACTS THAT INQULD AID THE MEDIATOR. ARBITER IN EXPEDITIOUSLY RESOLVING THE PETITION SUCH AS EXISTENCE OF A CONTRACT.BAR, ONE YEAR BAR OR DEADLOCK BAR NAY BE CONSIDERED THE CCONTRACT-BAR RULE SHALL APPLY IN ANY OF THE FOLLOWING: (1) WHEN THERE EXISTS AN UNEXPIRED REGISTERED CBA: OR (2) WHEN THERE IS NO CHALLENGE ON. THE REPRESENTATION STATUS OF THE INCUMBENT UVION DURING THE FREEDOM PERIOD. ‘SECTION 5 - Section 2 of Rule Vls hereby amended to reed a follows: Section 2. Where to File. ~ A peiion for oeticaton elctin shall be fed wth the Regional fice which issued fe petining unin's catia of registaton oF cerifcte of ceaton of chartered local AT THE OPTION OF THE PETITIONER, A PETITION FOR CERTIFICATION ELECTION ‘AND ITS SUPPORTING DOCUMENTS MAY ALSO BE FILED CNLINE. The ptton shale heard and resolved bythe Mehatrtiter Were two (2) or more petions insivng the same bargaining unit a fed in on (1) Regina Ofee, the same stall be automaticaly oasolated withthe Mediator Arbor who fat ‘scqued jussicion. Where the gettons ae led in diferent Regional Ofices, the Regional Off in which the petition was ft fled shall excude all oth: n which case the later shal indore the petion fo the forer fr corscldaton, ‘SECTION 6 - A new provision is horeby inserted as Section 7, to read as follows: Section 7. POSTING. - THE REGIONAL DIRECTOR OR HISIMER AUTHORIZED DOLE PERSONNEL, AND/OR THE PETITIONER SHALL BE RESPONSIBLE FOR THE POSTING OF THE NOTICE OF PETITION FOR CERTIFICATION ELECTION,‘SECTION 7, - Section 17, Relesse of OrdenDecsion within Ten (10) Days from the Last Hearing is hereby renumbered as Section 18 and amended, to readas follows: Section 18, Release of OrderDecision within Ten (10) Day frm the Last Hearing. ~The MEDIATOR.ARBITER shall relase his order or dacison granting or denying the plton ersonaly to the paries WITHIN TEN (10) DAYS FROM THE LAST HEARING, COPY FURNISHED THE EMPLOYER, ‘SECTION 6, - Sections subsequent to inserted now provisions andor re-numbered sections ‘are renumbered accordingly. SECTION 8. - A new provision is hereby added as Section 1,Rule IX, to read as follows: RULE IK ‘CONDUCT OF CERTIFICATION ELECTION SECTION 1. EMPLOYER AS BY.STANDER. . SUBJECT TO THE PROVISIONS OF PARAGRAPH 3, SECTION 1 OF RULE Vil, THE PRINCIPLE OF THE EMPLOYER AS BY- STANDER SHALL BE STRICTLY OBSERVED THROUGHOUT THE CONDUCT OF CERTIFICATION ELECTION. THE EMPLOYER SHALL NOT HARASS, INTIMIOATE, THREAT ‘OR COERCE EMPLOYEES BEFORE, DURING AND AFTER ELECTIONS. [SECTION 10. Section 5, Quaifcation of Voters; Inclusion Exclusion, is hereby renumbered 18s Section 6 and amended to read a follows: Section 6, Qualification of Voters; ncusion-Exclusion. - ALL ENPLOYEES WHO ARE EMBERS OF THE APPROPRIATE BARGAINING UNIT THREE (3) MONTHS PRIOR TO THE FILING OF THE PETITIONRREQUEST SHALL BE ELIGIBLE TO VOTE. An enployee who has boon donissed from work but has contest the egalty af the dissin a forum cf aporopate |urticion atthe te ofthe issuance ofthe rer forthe cond ofa ceticaton ecto shal be considered a qualfed voter, unless hiser disse was desared vai in anal udgment at ‘he tme of the conduct of he creation election. In case of disagreement over the voter stor over he egy of vole, al cntested ‘ters shall be alowed fo vote, But thelr vtes shall be segegated and sealed in incdval fenvetopesin accordance with Sections 11 and 12 ois Rul SECTION 11, Section 6, Pestng of Notices, is hereby renumbered as Section 7 and amended to reads follows: Section 7. Posting of Notices. ~ THE ELECTION OFFICER ANDIOR AUTHORIZED DOLE PERSONNEL SHALL CAUSE THE POSTING OF NOTICE OF ELECTION AT LEAST TEN (10) DAYS BEFORE THE ACTUAL DATE OF THE ELECTION IN TWO (2) MOST CONSPICUGUS PLACES IN THE COMPANY PREMISES, The notce sha conta 1. The date, time and venues ofthe elton, which preferably within the establishment Names of all contending unions, and © The description ofthe barging unit andthe ist of eigbe end changed votes‘THE POSTING OF THE LIST OF EMPLOYEES COMPRISING THE BARGAINING UNIT SHALL BE DONE BY THE DOLE PERSONNEL ‘The posing of he nace of election, the infomation requted to be included theron and the aration of posting cannot be waived by the contending unions or the employer. SECTION 12.- Seetion 7 of Rule IX, is hereby renumbered es Section & and amended to read asfollows: Section 8, Secrecy and Sanctty of the Ballot - To ensure secrecy ofthe bal, the Elcton Offcr, together withthe authorized represenatves of the contending unions, shall belo ‘he ‘Sar of the actual voting, inspect he poling place, the bat bows and ie poling booths NO DEVICE THAT COULD RECORD OR IDENTIFY THE VOTER OR OTHERWISE UNDERMINE THE SECRECY AND SANCTITY OF THE BALLOT SHALL BE ALLOWED WTHIN THE PREMISES, EXCEPT THOSE DEVICES BROUGHT INBY THE ELECTION OFFICER. ANY OTHER DEVICE FOUND WITHIN THE PREMISES SHALL BE CONFISCATED BY THE ELEGTION OFFICER AND RETURNED TO ITS OWNER AFTER THE CONDUCT OF THE CERTIFICATION ELECTION. SECTION 13, Section 9 of Rue I is hereby renumbered as Section 10 and amended, to ‘2s fllow: Section 10. Casting of Votes. The voter must put across (x 2r check (¥/) mark in he square ‘epost the name ofthe chosen union or "No Union he doesnot want tobe represented by any une. If the voter inadvertent spots a tall, elshe shal eum ito the Elecon Ofer who shall destroy and give hmver anather bao. ANY MEMBER OF THE BARGAINING UNIT WHO IS UNTENTIONALLY OMITTED IN ‘TE MASTER LIST OF VOTERS MAY BE ALLOWED 70 VOTE IF BOTH PARTIES AGREE, OTHERWISE, HEISHE WILL BE ALLOWED TO VOTE BUT THE BALLOT IS SEGREGATED. SECTION 14, - Section 12 of Rule IX i horeby renumbered as Section 13 and amended, to ‘ad as follows: Section 19, Protest; When Perfected. - Any patyninorest may flea protest based on the conduct or mechanics of the eecton. Suc protats shall be recorded inthe minutes ofthe econ proeedings, Protests not so raised immediatly a the lat ball cast ae deemed waived, GENERAL RESERVATION TO FILE A PROTEST S4ALL BE PROHIBITED. THE PROTESTING PARTY SHALL SPECIFY THE GROUNDS FOR PROTEST The protesting party must fomalze is protest wih the MedatorArite, wth specie {gounds,argurens and evidence, wihin ve (6) days ar the close ofthe elecion proceedings "ot ecarded in the minutes and fomalzed within the preserbed period, the potest shal be deemed droppedSECTION 15. Section 15 of Rule IX is hereby renumbered as Section 16 end amended, to read as follows: Section 16, Certification of Collective Bargaining Agent. ~ The union which obtained ‘apy ofthe vai votes cast shall be carted asthe sole ad excsve targainng agent ll the employees in the appropiate bargaining unt win Fe (5).das fom he day of the econ, Provided ro protests recorded inthe mines ofthe election, WHEN THE WINNING CHOICE IS A LOCAL CHAPTER WITHOUT A CERTIFICATE (OF CREATION OF CHARTERED LOCAL, SUCH LOCAL CHA*TER SHALL SUBMIT TS DOLE- ISSUED CERTIFICATE OF CREATION WITHIN FIVE (6) DAYS FROM THE CONCLUSION OF ELECTION, ‘SECTION 16.- Anew provision is hereby added as Section 18, to read as follows: SECTION 18. RE-RUN ELECTION, — WHEN A CERTIFICATION, CONSENT OR RUN-OFF ELECTION RESULTS TO A TIE BETWEEN THE TWO (2) CHOICES, THE ELECTION OFFICER SHALL INMEDIATELY NOTIFY THE PARTIES OF & RE-AUN ELECTION, THE ELECTION OFFICER SHALL CAUSE THE POSTING OF THE NOTICE OF RE-RUN ELECTION WITHIN FIVE (3) DAYS FROM THE CERTIFICATION, CONSENT O RUNOFF ELECTION. THE RE- RUN ELECTION SHALL BE CONDUCTED WITHIN TEN (10) DAYS AFTER THE POSTING OF nomics THE CHOICE RECEIVNG THE HIGHEST VOTES CAST DURING THE RE-RUN ELECTION SHALL BE DECLARED THE WINNER AND SHALL BE CERTIFIED ACCORDINGLY. SECTION 17. - Sections subsequent to inserted new provisions andlor renumbered sections are renumbered accordingly SECTION ‘Section 1 of Rul XI is hereby amended to resdas follows: RULEX! INTERINTRA-UNION DISPUTES AND OTHER RELATED LABOR RELATIONS DISPUTES Section 4. Coverage -nttinrassniondgputes shall incu: ‘8. Canclation of registation of aber oxganization led by ts members or by another labor organization, Cnduct of election of urian and workers’ association ofssnulifation of electon of uion and workers’ association ofces Audivgcounts examination of union or workers association funds Deregsraton of colectve barganing agreements: Vaktyinvality of union afton odin \eltyinvaty of acceptancelno-sceptane for union membership; \Vetyinvakity of mpeachmenexousion of union and workers’ association ofers and members \VALIDITYINVALIDITY OF THE SEBA CERTIFICATION; Opposition to application for union and CBA registration; 7|. Violations of or disagreements over any provision in a union or worker’ association consttuion and bylaws Disagreements over chartering or repstaton of lator oxpaizaions and collective bargaining agreements; \olaons ofthe rights and condons of uso or worker’ assodaton membership Volatos ofthe rights of legtinate labor oganzatens, except interpretation cf collective baganingapreemens; and Such other dsputes or conics involing the fghis to sal-ergnizton, union membership ‘and colectve bargaining — 41 Between and among legitimate ator organiza; or 2. Between and among members ofa urion or works’ association, SECTION 19. Supersession. - All other rules, regulations, issuances, circulars and administrative orders inconsistont herewith ae hereby supersede, SECTION 20, Separability Clause. - any part or provision of this Order shall be held Unconstitutional or invalid, other parts or provisions thereof wich are not affected thereby shall continue tobe in fll force and effect SECTION 21, Effectivty. ~ This Order shall take sffect fiteen (15) days following its publication in atleast two (2) newspapers of general circulation. Manila, Pilpgines, 0 September 2016, RosaLinpa cimaPiLts-8ALDOZ ‘Speretary