Tripartite Workshop on Enterprise-level Social Dialogue and ...

Tripartite Workshop on Enterprise-level Social Dialogue and ...

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 CB III. Interest-based negotiation (IBN) and

its application to CB IV. Notes on conflict and negotiation techniques V. Planning for CB SD & CB at the Enterprise/BERBitonio Part I. Concepts, principles and practice SD & CB at the Enterprise/BERBitonio 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. SD & CB at the Enterprise/BERBitonio 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 & CB at the Enterprise/BERBitonio SD is part of the countrys 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 & CB at the Enterprise/BERBitonio 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 & CB at the Enterprise/BERBitonio 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 (DOLEs SEADOs, NCMB, NLRC) Affirm commitment to good principles (ITCs) SD & CB at the Enterprise/BERBitonio Worksheet 1 (individual activity): two-step assessment of SD mechanisms First step: process involved and level of development Second step: sharing your SD

experience SD & CB at the Enterprise/BERBitonio 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 dont. SD & CB at the Enterprise/BERBitonio 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.

SD & CB at the Enterprise/BERBitonio 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 SD & CB at the Enterprise/BERBitonio 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. SD & CB at the Enterprise/BERBitonio 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 SD & CB at the Enterprise/BERBitonio 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 SD & CB at the Enterprise/BERBitonio Part II. Context of negotiation and CB SD & CB at the Enterprise/BERBitonio 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 SD & CB at the Enterprise/BERBitonio 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 minimum SD the & CB at the Enterprise/BERBitonio Role Play 1: positions and interests 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. SD & CB at the Enterprise/BERBitonio

Worksheet 3 (group activity): What did we learn? Defining ISSUES Identifying POSITIONS Recognizing INTERESTS Converting POSITIONS to INTERESTS Generating OPTIONS and ALTERNATIVES SD & CB at the Enterprise/BERBitonio Part III. Interest-based negotiation (IBN) SD & CB at the Enterprise/BERBitonio

Worksheet 4 (group activity): Setting the stage Oil pricing exercise SD & CB at the Enterprise/BERBitonio 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 SD & CB at the Enterprise/BERBitonio 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. SD & CB at the Enterprise/BERBitonio IBN shifts the focus of negotiation

toward common interest and mutual gains POSITION-BASED IBN 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 selfinterest (Rational choice) Start high/low, concede

slowly Exaggerate value of concessions Argue forcefully Ridicule, attack, intimidate I win, you lose. 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 SD & CB at the Enterprise/BERBitonio 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). SD & CB at the Enterprise/BERBitonio IBN steps and techniques

Separate the people from the problem. Attack the problem, not each other. Focus on interests rather than positions. Dont 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. SD & CB at the Enterprise/BERBitonio

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 SD & CB at the Enterprise/BERBitonio 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).

SD & CB at the Enterprise/BERBitonio 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

SD & CB at the Enterprise/BERBitonio performance 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. SD & CB at the Enterprise/BERBitonio Part IV. Practical notes SD & CB at the Enterprise/BERBitonio Negotiation and CB are 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. SD & CB at the Enterprise/BERBitonio 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. SD & CB at the Enterprise/BERBitonio 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. SD & CB at the Enterprise/BERBitonio 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. SD & CB at the Enterprise/BERBitonio Policies and principles

in managing labor disputes The preferred policy is for shared responsibility and consensual modes of dispute settlement Dialogue Collective bargaining Conciliation and mediation Voluntary arbitration SD & CB at the Enterprise/BERBitonio Policies and principles in 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. SD & CB at the Enterprise/BERBitonio 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 objectives Know the range of the panels authority SD & CB at the Enterprise/BERBitonio 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 Worksheet 5: WHATS YOUR PLAN? SD & CB at the Enterprise/BERBitonio

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