This principle is now at issue as regards the provision of D.O. No. 40-03 issued by the Hon. Secretary Patricia Sto. Tomas in 2003 which states in Sec. 17, Rule VIII thereof that "the order granting the conduct of a certification election in an unorganized establishment shall not be subject to appeal." Notably, this rule expressly disallows a party from appealing to the Secretary of Labor the order of the med-arbiter granting a petition for a certification election. While this new rule will certainly expedite the holding of an election in an unorganized establishment where there is no existing recognized or certified bargaining agent, consistent with constitutional mandate recognizing the right of workers to self-organization, there is, however, an equally statutory provision found in Article 259 of the Labor Code which expressly states that "any party to an election may appeal the order or results of the election as determined by the Med-Arbiter directly to the Secretary of Labor on the ground that the rules and regulations or parts thereof established by the Secretary of Labor for the conduct of the election have been violated." Clearly, under Article 259 of the Labor Code, a party has the right to appeal an order allowing or granting a petition for certification election (Associated Labor Unions et al., vs. Quisumbing, et al., 305 SCRA at p. 768)
Now if appeal is a remedy in law from an order granting a petition for certification election without making any distinction whether it involves an unorganized or organized establishment, will Sec. 17, Rule VIII of D.O. No. 40-03 not be in conflict with the Labor Code?
It is interesting to note here that prior to these amendatory rules, D.O. No. 09, Series of 1997 expressly allows an appeal from an order of the Med-Arbiter granting the holding of a certification election (Sec. 12, D.O. No. 09, Series of 1997) regardless of whether the establishment involved in unorganized or organized. In fact, the filing of such an appeal even stays the holding of any certification election (Sec. 15, D.O. No. 09, Series of 1997; same rule in Sec. 21, Rule VIII, D.O. No. 40-03). As there was no amendment to Art. 259 of the Labor Code when D.O. No. 40-03 was issued, giving a party the right to appeal from an order of the med-arbiter granting a certification in an unorganized establishment, can the present rules now prohibit what is legally allowed or permitted by law?
(The author is the Resident Partner of the Cebu Branch of the Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW). He is also a Professor of Labor Law at the University of San Carlos College of Law, Cebu City. He can be contacted at Tel. # (6332) 231-4223 / (6332) 231-1449; Fax # (6332) 231-3614; or email: jmmarquez@accralaw.com.)