Adr Mayeth.docx

By virtue of the mandate of Section 3, Article XIII of the 1987 Constitution on the preferential use of voluntary modes of dispute settlement, Article 211 of the Labor Code, as amended, the Alternative Dispute Resolution (ADR) Act of 2004 and Executive Order No. 523 instituting the use of ADR for the speedy resolution of all disputes before all administrative bodies of the Executive Department. As provided by this order any labor disputes must be subject for single entry approach before it can proceed to any tribunal that has proper jurisdiction over the case after referral. Any labor tribunal or office will not entertain any complaint without first undergoing single entry approach. Section 1, in its guiding principle provides that the Single Entry Approach 30-day mandatory conciliation-mediation in all regional offices shall complement the existing labor dispute settlement mechanism and processes in the DOLE offices and attached agencies to: (1) provide a speedy, impartial, inexpensive and accessible settlement services for unresolved issues/complaints arising from employer-employee relations; (2) encourage the use of conciliation-mediation in the settlement of all labor cases and only unresolved issues shall be referred either for voluntary arbitration, if both parties so agree, or compulsory arbitration to the National Labor Relations Commission (NLRC) or appropriate agency or office of the DOLE, as the case may be; and (3) strengthen cooperation and coordination between and among DOLE agencies involved in dispute settlement. In SenA the complaint filed is called “request for assistance”, the complainant is called “requesting party” and the respondent is called “responding party”. The person who will conduct the conciliation is called “desk officer”, sir Tan said that the desk officers are designated by the secretary of labor provided that such person qualifies to be a desk officer and have all the qualification required. He also said that he was designated by the labor secretary to conduct conciliation, he undergone seminar and was conciliator of labor disputes for more or less twenty years in different offices in the region. The duties of the desk officer are as follows: a) to clarify issues and narrow down the disagreements; b.) validate the positions and the relief sought; c.) encourage parties to generate option and enter into stipulations; d.) offers proposals and option towards mutually acceptable solution and voluntary settlement; e.) and separate the preparation of the settlement documents. Upon the request for conciliation – mediation services, the designated desk officer shall initiate a pre-conference assessment, evaluation, counselling, and conciliation - mediation. According to sir Tan, as a desk officer he should make sure that as much as possible the parties will settle their differences and he could assess the parties to come up with fair compromise agreement. Based on what we have observed it is really true that experience and skills should necessarily be possess by a desk officer because he will going to face different temperament and personality of the parties, and he should have the capability to

make adjustments in order to effect conciliation. He also added that at first he was intimidated by parties that are represented by lawyers because some are very technical and mostly dominant and as a third party in the dispute he cannot effect settlement because he cannot give advices that will suffice and acceptable to the parties but as time goes by he can now manage different personalities and standing of parties. It is easy for him now to explain to the parties the difference between conciliation and traditional judicial proceedings. The Department Order no. 107-10 also provides that the period of termination of cases under mandatory conciliation-mediation is within 30 calendar day. Sir Tan explains to us that sometimes 30 day period cannot be followed because of volumes of cases and rescheduling of settlement by parties. Although the 30 day prescribed period is sometimes extended he should make sure that the case be terminated at early possible time. If the parties come up with voluntary settlement, the desk officer shall reduce the agreement into writing, have the parties understand the contents thereof and sign it in his presence and attest the documents to be true and voluntary act of the parties. Any settlement agreement entered into by the parties shall be final and binding. In case the parties did not settle, the desk officer shall issue referral to the appropriate DOLE agency which has jurisdiction over the disputes. Failure of the requesting party to appear in two scheduled meetings shall also result to the issuance of the referral.

On February 24, 2017 at 9: 00 in the morning, we conducted our first actual observation in Department of Labor and Employment (DOLE) Tuguegarao. Before the proper and actual mandatory conciliation – mediation started, Sir Geliermo Tan, the single entry assistance desk officer introduced us to the parties and asked their consent regarding our presence during the conciliation proceedings. Both parties consented and allowed us to observe how conciliation on labor dispute is being conducted. The desk officer before he begin, ask for the identity of the parties and ask the responding party if they were able to read the notice sent to them and are willing to submit themselves for voluntary conciliation. The defending party reply in affirmative. Thereafter, the desk officer explains the procedures and reason why the parties are called for settlement in a language which the parties can easily understand. The parties were given opportunity to lay down their claims and the desk officer allow the parties to talk by themselves before he will going to intervene and give his assessment, evaluation and counselling to the parties. The first disputes we observed arise from the claim of a field worker of KASAPI, a loan collector for his unpaid salary, cash bond and 13 th month pay prior from his leave from office. The loan collector alleged that the KASAPI did not give his two months’ salary, his 13th month pay and for not returning his cash bond posted prior to his employment. The responding party on his part, alleged that the company’s reason of non payment of wages and benefits and for not giving back his cash bond is because of requesting party’s (the term given under department order no. 107-10 to the complainant) failure to ask permission for his leave and failure to return for duty and that requesting party committed AWOL. They also claim that the collector has unremitted collection that’s why his cash bond is being held by their office. After hearing both sides claims sir Tan (desk officer) give his assessments, explains to the requesting party that based on the responding party’s claim he committed grave misconduct for violating company’s rules and guidelines and for not asking permission for his leave. Sir Tan also ask the responding party if they are willing to pay the remaining salary of the requesting party, his 13th month pay and the return of his cash bond. The responding party agree to pay the collector of all his claims but they will first compute the total unpaid wages deducting the unremitted collection by the collector. The desk officer suggested that the computation must be done in DOLE office as well as the payment of requesting party’s claim

but if they agree that the payment will be given in the KASAPI office, the parties must produce proof of payment and submit it to the DOLE office. The responding party ask for certain period of time to compute the remaining payment and will just inform the desk officer through text message for the availability of payment and to inform the requesting party to return to the office to get his remaining salary. It was agreed by both parties and they initially signed the written amicable settlement and it was attested by the desk officer noting that payment will be given to the DOLE office after computation.

In our second observation, almost the same claim as to the first but different party and different circumstances arises that will help us appreciate more on how desk officer or arbitrators assess and help parties to effect amicable settlement. The same in our first observation, Sir Tan introduced us to the parties and we identify ourselves and asked the parties for their consent for us to observe the settlement, the same initiatory procedures was made by the desk officer. During the identification of parties, the responding party said that she was just an auditor of the company in Isabela/Tuguegarao branch and she was sent by her manager in his behalf since her manager was in their office in Manila and if it is okay if from time to time she will call her manager before she will enter into agreement, the desk officer consented and allow the responding party for the purpose of helping the parties in the administration of settlement. The requesting party claim that she submitted her resignation letter to their office through e-mail but there was no response from their office even if they come to know about it. This prompted requesting party not to report for duty and started working on the other jewelry shop. She claims that before she resign there’s still having unpaid salary and unreturned post bond and 13 th month pay and that JEWELRICH Inc. refuses to pay her of such. The responding party on their part claim that there is bad faith on the part of the requesting party because the reason of her resignation is to transfer to another jewelry shop which is a known competitor of JEWELRICH inc., and that there are loses in their branch in which part of the agreement that the employees on that branch will divide the total loses proportional to each other. The requesting party explain that she only received 260 minimum wage from the JEWELRICH company, when she come to know about the vacancy of the other jewelry company and offer 300 minimum wage, she tried to apply and fortunately she was hired. She also said that it is true that the reason of her resignation is she wants to transfer to another

jewelry shop but only on the reason that her salary cannot sustain her family’s daily need so she need to look for another job that will at least sustain their everyday needs. After hearing both sides, the desk officer gives his assessment and suggestion. The responding party asked permission to call for her manager and inform her manager on the requesting party’s claim, in the beginning of the conversation the manager refuses to pay the requesting party and ask to talk to the desk officer. During the conversation the desk officer turned the phone into speaker mode; at first the manager gets angry on the desk officer by reason that the desk officer includes 13th month pay and increase the minimum wage claim by the requesting party. The desk officer explain that he was just helping parties to come into agreement without prejudicing anyone and that if she don’t want to settle, the desk officer will refer the disputes to DOLE office having jurisdiction. Thereafter the manager ask for time to compute the unpaid salary, the cash bond and the 13th month pay deducted by the total loses in their branch and she will call back later. After several minutes the manager returned call and instructed the auditor to write the computation and be verified by the requesting party, and then after it was verified, the requesting party agreed the same. The manager instructed the auditor to look for a nearest ATM machine to withdraw the amount to be given to the claiming party. Thereafter the auditor asks permission to leave the office and wait for her return to give the exact amount. When the auditor returned, with the money on hand, she gave it to the requesting party. The desk officer reduce the agreement into writing, have the parties understand thereof, he let the parties signed it in his presence then he attested the document. Thereafter he furnished parties with copies of the agreement.

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Reference: www.blr.dole.gov.ph/single-entry-approach-sena https://www.dole.gov.ph>labor_codes