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LABOR LAW (STANDARDS AND RELATIONS) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 LABOR STANDARDS EXEMPT FROM BOOK III (Conditions of Employment) Government employees Managerial employees: if primary duty is management, customarily and regularly direct work of two or more Ees, and with authority to hire and fire or suggestions given particular weight Officers or members of managerial staff Domestic Servants Non-agricultural field personnel if regularly perform duties away from office *Those paid by results, piece-work, pakyaw or task basis – are entitled to certain benefits (Labor Congress v. NLRC, 290 SCRA 509) BENEFITS TO WHICH PIECE-RATE WORKERS ARE ENTITLED : Applicable Statutory Minimum Daily Rate* Service Incentive Leave Night Differential Pay Holiday Pay Meal and Rest Periods Overtime Pay* Premium Pay* Thirteenth Month Pay Other Benefits *Follows output rate prescribed by DOLE or standard used conforms with DOLE output rate.
PREMIUM RATE for OVERTIME: Normal Holiday/Rest Day Special Day
25% ON ON TOP OF HOURLY RATE 30% 30%
Emergency Overtime Work Country at war/National or Local Emergency Necessary to Prevent loss of life/property or Imminent danger to public safety Urgen rgentt work work to be perfo performe rmed d on Machine Machines s to avoid avoid serious serious loss loss or damag damage e to employer Necessary to prevent loss or damage to perishable goods Completion of work started before the 8 th hour Necessary to avail of favorable weather or environmental Overtime Compensation
Genera Generall Rule Rule : cannot cannot be waived waived Excep ceptio tion : waiver ver of of OT OT pa pay is is in in co consid siderat ration ion of of benefits and privileges which may be more than the OT pay Voluntarily agrees to work 9 hours No diminution in pay Value of benefits greater or at least equal to 1hr. OT pay during weekdays OT pay due and demandable even if permitted to work Saturdays Work doesn't involve strenuous physical exertion Temporary duration
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LABOR LAW (STANDARDS AND RELATIONS) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 NIGHT DIFFERENTIAL
(10pm-6am) 10% Does not apply to: Government Employees Retail Businesses with less than 5 workers Domestic Helpers Managerial Employees Field Personnel or those unsupervised, task or contract basis, purely commission & fixed amount
MEAL TIME
General General Rule: Rule: Minimum of 60 minutes
Exception tion::
Minim inimu um of of 20 20 mi minutes tes wit with h fu full
pay
PREMIUM PAY
(Days Worked) Rest Day 30% Special Day 30% Nov.1 Nov.1 & Dec. Dec. 31 31 if also also a Rest Rest Day 50%for 50%for specia speciall day: day: NO WORK, NO PAY
Authorized Work on a Rest Day: Urgent work to be performed on machinery Actual impending emergency Abnormal pressure or work Prevent loss/damage to perishable goods Nature of work requires continuous operations Analogous situations HOLIDAY PAY Unworked 100% Worked 200% - IF ALSO REST DAY 260% - should not have been absent without pay on the working day preceding the holiday New Year's Day 30 April 9 Dec. 25
Maundy Thursday
Good Friday
May 1 Dec. 30
June 12 Last Sun of August
EXEMPT FROM HOLIDAY PAY: Government ees Retail and Service Establishments regularly employing less than 10 Domestic helpers Managerial ees Field Personnel Hourly Paid Faculty Members – not also entitled SERVICE INCENTIVE LEAVE has worked for at least a year 5 days with pay Does not apply: Government Already enjoying benefit Domestic Helpers and those in the personal service of another Already with vacation leave with pay of at least 5 days
Nov.
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LABOR LAW (STANDARDS AND RELATIONS) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 Managerial Employees Field Employees including those in Contract basis Employed in establishments regularly employing less than 10 employees
WAGE DISTORTIONS an increase in prescribed wage rates resulting in the elimination or severe contraction of intentional quantitative differences in wage or salary rates between and among employee groups in an establishment as to effectively obliterate the distinction distinctions s embodie embodied d in such such wage wage structu structure re based based on skills, skills, length length of service, or other logical bases of differentiations Procedure for correcting: 1. With Un Union go through grievance procedure voluntary arbitrators (decide within 10 days from referral) 2. Without Union Each brings his own grievance NCMB (10 calendar days => conciliation if unresolved) NLRC (decide within 20 days from submission) -
13TH MONTH PAY Entitled : All Rank Rank and and File File emplo employe yees– es–wor worke ked d at least 1 month Those with Multiple Employers Paid by Result Private School Teachers Resigned or Separated Employees (proportional) Minimum Amount Amount : year
Exempted Employers : Government Employers of Household Helpers Those already paying Employ mployer ers s of paid paid purel purely y on commis commissio sion, n, fixed, boundary or task basis basis
not less less than 1/12 1/12 of total total basic basic salary earned earned within within a calendar calendar
*BASIC *BASIC SALARY SALARY – for purposes purposes of 13 th mo. pay shall shall include include all remunera remunerations tions or earnings paid by his employer for services rendered - BUT BUT DOES DOES NOT NOT INCL INCLUD UDE: E: allo allowa wanc nces es and and mone moneta tary ry bene benefi fits ts whic which h are are not not considered or integrated as part of the regular or basic salary such as vacation and sick leave credits, overtime, prem premiu ium m nigh nightt diff differ eren entia tial, l, holi holida day y pay pay and and COLA COLA UNLESS by indi indivi vidu dual al or coll collec ecti tive ve agre agreem emen entt or compan company y practice practice or policy, policy, they they are treated treated as basic basic salary. VACATION/SICK LEAVE - not required by law SERVICE CHARGE
85% 15%
Cove overed red Emp Emplo loye yee es Management
BONUS General Rule : Can't be demanded demanded Exceptions: 1. Given Given for for a long long peri period od of of time time 2. Consis Consiste tent nt & delib delibera erate te 3. Employe Employerr knew he was was not not required required to give give benef benefit it 4. Employe Employerr contin continued ued giving giving benefit benefit 5. Empl Employe oyerr real realize izes s prof profits its
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LABOR LAW (STANDARDS AND RELATIONS) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 MEDICAL TREATMENT OF EMPLOYEES General Rule :First-Aid medicine and equipment made available Training of sufficient Number of Employees to apply First-Aid Treatment 51-200 Employees
Full-time registered nurse EXCEPT when the employer doesn't maintain hazardous work places (Licensed First-Aider sufficient)
201-300 Employees
Full-time Registered Nurse, Dentist & Emergency Clinic
301 or more
Full-Time Registered Nurse, Full-Time Physician, Dentist, Dental Clinic, Infirmary/Emergency Hospital with a bed capacity of 1 bed per 100 employees
Part-Time
Physician,
EXCEPT when there is a hospital or clinic accessible from the Employer's establishment AND he makes arrangements for the Reservation of necessary bed and dental facilities Hazardous Work Place
Full-Time Physician - at least 2 hours Part-Time Physician - at least 8 hours
VISITORIAL AND ENFORCEMENT POWER–by Secretary of Labor or duly authorized representative Access to employer's records and premises Right to copy records Right to question any employee Investigate any fact, condition or matter which may be necessary to Order and administer, after due notice and hearing, compliance with the Labor Standards provisions Issue writs of execution to the appropriate authority for enforcement of their orders Order stoppage of work or suspension of operations when non-compliance with law and implementing regulations poses grave and imminent danger to the health and safety of workers in the workplace - Hearing within 24 hours - Employer liable for salaries during suspension of operations if found to have caused the violation *NO TRO or Temporary/Permanent injunction may be issued by an inferior court over any case involving the enforcement orders issued RECOVERY OF Wages, Simple Money Claims & Other Benefits - DOLE Regional Director Summary Proceeding Claimant : employee or person in domestic or household service Provided : 1. No claim for reinstatement 2. Aggregate claims of each employee or househelper does not exceed P5,000 (even if it exceeds this, Regional Director may still enforce based on inspection's findings in the nature of enforcement action) 3. Claims arise from employer-employee relationship Notice and Hearing Resolution of Complaint within 30 days from filing (Appeal within 5 calendar days to NLRC) NLRC to resolve appeal within 10 calendar days from submission of last pleading
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LABOR LAW (STANDARDS AND RELATIONS) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 Exception :
*Regional 1. 2. 3.
Claims for Employee's Compensation Claims for Social Security benefits Claims for Medicare Benefits Claims for Maternity Benefits
Director cannot enforce results of Visitorial Power when : Employer contests the findings Issues raised requires examination of evidentiary matters Such matters are not verifiable in the normal course of inspection
EMPLOYMENT OF WOMEN 1. Nightwork Prohibition a. Industrial Undertaking b. Commercial or Non-industrial, or branch thereof, other than agricultural c. Agricultural Undertaking
10pm06am 12am-6am Nighttime, unless given a period of rest not less than 9 consecutive hours
EXCEPTIONS: Actual or impending emergencies to prevent loss of life/property or force majeure or imminent danger to public safety Urgent work to be performed to avoid serious loss to employer Necessary to prevent serious loss of perishable goods Holds a responsible position of managerial or technical nature or engaged to provide health or welfare service Nature of work requires the manual skill and dexterity of women workers and the same cannot be performed with equal efficiency by male workers Immediate members of the family operating the establishment or undertaking Other analogous cases 2.
Facilities for Women a. Provide seats proper for women b. Establish separate toilet rooms and lavatories c. Establish a nursery in a workplace for the benefit of the women employees d. Determine appropriate minimum age and other standards for retirement and termination
3.
Maternity Leave Benefits a. Has paid at least 3 monthly contributions in the 12-mo. period immediately preceding the semester of her childbirth or miscarriage b. Paid only for the first 4 deliveries or miscarriages c. 100% of average salary credit for 60 days if normal or 78 days if caesarean
4.
Family Planning Services, Incentives for Family Planning a. Maintain clinic or infirmary which shall provide for family planning service b. Develop and prescribe incentive bonus schemes to encourage family planning among female workers in any establishment/enterprise
5.
Discrimination Prohibited
ACTS OF DISCRIMINATION: Payment of lesser compensation for work of equal value Favoring over promotion, training opportunities, study and scholarship grants solely on account of their sexes Institution of any criminal action under this shall not bar the aggrieved employee from filing an entirely separate and distinct •
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LABOR LAW (STANDARDS AND RELATIONS) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 action for money claims, which may include claims for damages and other affirmative relief Actions authorized shall proceed independently of each other •
6. Void Stipulations Against Marriage - either as a condition for employment ( pre) or for continuing employment ( post ) 7. Prohibited Acts Deny benefits or discharge any woman employed to avoid giving benefits Discharge such a woman on account of her pregnancy or while on leave or in confinement due to her pregnancy Discharge or refuse the admission of such woman upon returning to her work for fear she may again be pregnant MINIMUM EMPLOYABLE AGE 15 Years Except when working under the sole responsibility of his parents or guardian AND his employment does not in any way interfere with his schooling 18 Years In undertakings which are hazardous or deleterious
a. exposes workers to dangerous environmental elements, contaminations, or work conditions including ionizing radiations, chemicals, fire, flammable substances, noxious components and the like b. engaged in construction work, logging, fire-fighting, mining, quarrying, blasting, stevedoring, dock work, deep-sea fishing and mechanized farming c. engaged in the manufacture or handling of explosives and other pyrotechnic products d. exposed to or use of heavy or power-driven machinery or equipment e. use or are exposed to power-driven tools EMPLOYMENT OF HOUSEHELPERS engaged in the employer's home, whose services are usually or desirable for the maintenance and enjoyment thereof, and ministers exclusively to the personal comfort and enjoyment of the employer's family 1) Original Contract not more than 2 years 2) If assigned to work in a commercial, industrial or agricultural enterprise, must not be paid lower than agricultural or non-agricultural workers 3) If under 18 years of age, must be given opportunity to finish at least elementary schooling - cost of education shall be part of compensation 4) Treated in a just and humane manner 5) Free : Sanitary and suitable living quarters Adequate food Medical attendance 6) Indemnity for unjust termination if Fixed Period of Service Compensation already earned + 15 days 7) If no fixed period, notice of termination must be given at least 5 days prior EMPLOYMENT OF HANDICAPPED WORKERS Earning capacity impaired by : age physical or mental defects can be regular if work is usually or necessary or desirable to the business (Bernardo Case) 1. When Employable
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LABOR LAW (STANDARDS AND RELATIONS) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 a. necessary to prevent curtailment of employment opportunities AND b. does not create unfair competition in labor costs or impair working standards
2.
Employment Agreement shall state/include: a. Names and addresses of the handicapped workers to be employed b. Rate to be paid not less than 75% of applicable legal minimum wage c. Duration of employment period d. Work to be performed by handicapped - the agreement is always subject to inspection by SOLE or duly authorized representative 3. Eligibility for Apprenticeship If their handicap is not such as to effectively impede the performance of job operations in the particular occupations for which they are hired
LABOR RELATIONS REQUIREMENTS FOR REGISTRATION LABOR ORGANIZATION FEDERAL/NATIONAL WORKERS’ ASSOCIATION UNION a. Registration Fee In addition to a, b, d and e of a. Registration fee b. Names, addresses of its requirements for Labor Org: b. Names of its members, officers; principal a. Resolution of affiliation of their addresses, address; minutes of the at least 10 locals or principal office of organizational meetings; chapters (all duly applicant, minutes of list of workers who recognized Collective organizational participated in the Bargaining agents) meetings, and names meetings b. Names and addresses of of individual members c. Names of all its the companies where the who attended such members comprising at locals/chapters operate meetings least 20% of all the plus list all members in c. Copy of constitution employees in the each company involved and by-laws duly bargaining unit where it ratified by majority of seeks to operate individual members d. Two (2) copies of its financial reports is applicant has been in existence for one or more year e. Four (4) copies of the Constitution and By-laws (CBL), minutes of its adoption or ratification and a list of members who participated therein ~ all requisite documents shall be certified under oath by the Secretary/Treasurer and attested by the President
CHARTERING -
Issuance by Federation of charter certificate to a local/chapter copy of which shall be submitted to BLR within 30 days from issuance
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LABOR LAW (STANDARDS AND RELATIONS) MEMORY AID -
ATENEO CENTRAL BAR OPERATIONS 2001 in addition submit CBL and set of officers books of accounts are no longer required
AFFILIATION of Independently Registered Union file with Regional Office or BLR 2 copies of verified resolution of affiliation, ratified by a majority of the union, and a resolution of acceptance of by the federation / industry union Local/Chapter becomes an LLO only upon Submission of the ff. to the BLR / Regional Office: a. a charter certificate (Within 30 days from issuance) b. CBL and statement of officers - books of account are no longer required GROUNDS FOR CANCELLATION OF UNION REGISTRATION Misrepresentation, False Statement or Fraud in connection with : a. adoption/ratification of the CBL or amendments thereto, minutes of ratification and the list of members who took part in the ratification b. election of officers, minutes thereof, list of officers/voters c. in the preparation of the financial reports Failure to Submit : a. CBL, minutes of its adoption/ratification, list of members ho took part within 30 days from adoption of ratification or amendments thereto b. Minutes of the elections of officers, list of officers/voters within 30 days from election c. Annual financial report to the BLR within 30 days after the closing of every fiscal year d. List of individual members to the BLR once a year or whenever required by the BLR Acting as labor contractor or engaging in the 'Cabo System' or otherwise engaging in any activity prohibited by law Entering into CBAs with terms and conditions of employment below minimum standards established by law Asking for or accepting attorney's fees or negotiation fees from employer Checking off special assessments or any other fees without duly signed individual written authorizations of the members (other than for mandatory activities under the labor Code) RIGHTS AND CONDITIONS OF MEMBERSHIP A. Political Rights 1. Officers Directly elected 2. No person convicted of crime involving moral turpitude shall be eligible to be an officer of union 3. Officers shall not be paid any compensation other than salaries and expenses due to their positions as authorized by CBL or written resolution of majority 2. Deliberative & Decision Making Rights 1. Determination by secret ballot, any question of major policy 2. No admission of individuals who are members of subversive organizations C. Rights Over Money Matter 1. No arbitrary, excessive oppressive fines and forfeiture 2. No collection of fees, dues NOR disbursements unless duly authorized pursuant to CBL
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LABOR LAW (STANDARDS AND RELATIONS) MEMORY AID 3. 4. 5. 6.
ATENEO CENTRAL BAR OPERATIONS 2001 All payment of fees, dues, contributions evidenced by receipt and entered into records Funds shall not be applied for any purpose other than expressly provided in CBL or authorized by majority of members at general meeting No special assessment or other extraordinary fees may be levied unless authorized y written resolution of majority Other than mandatory activities, no special assessment, atty.'s fees, negotiation fees or any other extraordinary fees may be checked from any amount due to an employee without individual written authorization
D. Right To Be Informed 1. Full and detailed report of all financial transactions 2. All income and revenue evidenced by a record and every expenditure evidenced by a receipt 3. Treasurer and Officers render a true and correct account of all moneys received and paid : Since assuming office Since last accounting At least once a year w/ in 30 days from close of fiscal year Other times as required by written resolution of majority 4. Books of account and financial records open to inspection by officer/member during office hours 5. Duty of labor organization to inform members of contents of CBL, CBA and their rights and obligations under existing labor laws *Protest on Election of Officers Formalized before Med Arbiter within 5 days from close of Election Proceedings
Decided within 20 working days
INTRA-UNION DISPUTES General Rule :Relief must first be sought within the union itself in accordance with its CBL which must be alleged in the petition Exceptions : Futility of intra-union remedies Improper expulsion procedures Undue delay as to constitute substantial injustice Action for damages Lack of jurisdiction of the investigating body Action of the administrative agency is patently illegal, arbitrary and oppressive Issue involved is purely a question of law Administrative agency has already prejudged the case Administrative agency was practically given an opportunity to act on the case but did not *Requirement for a complaint for Violation of by-laws and rights and conditions of membership: Minimum of 30% of the members of the Labor Organization Exception :when such violation directly affects only 1 or 2 members, then such number would be enough to report the violation and seek redress with the CIR REQUIREMENTS FOR DISAFFILIATION General Rule : Only during the 60 day freedom period & effected by a majority of the members of the bargaining unit Exception : Outside the freedom period but must still be supported by a majority of the members of the disaffiliating union who must remain bound by the CBA until the CBA's expiration date. •
•
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LABOR LAW (STANDARDS AND RELATIONS) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 Substitutionary Doctrine - employees cannot revoke the validity of a validly executed CBA with their employer by the simple expedient of changing their collective bargaining agent the new agent must respect the subsisting CBA - employer cannot renege on the CBA, except to negotiate with the management for the shortening thereof - Inapplicable to personal undertaking of deposed union e.g. : no strike stipulation
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LABOR LAW (STANDARDS AND RELATIONS) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 VISITORIAL POWER Who : Re : Cause : Prohibited
:
Sec of DOLE or duly authorized representative Inquire into Financial Activities of LLO Complaint under oath supported by the written consent at least 20% of LLO's total membership 1. 60 day freedom period 2. within 30 days immediately preceding election of union officers
EXECUTIVE ORDER 180 - Applies to all employees of all branches, subdivisions, instrumentalities and agencies of the government including employees of GOCCs with original charters Can form, join or assist employees’ organization for furtherance and protection of interest NOT Covered : High-level employees AFP Police Officers Policemen Firemen Jailguards -
Application filed with the BLR Registration is with the Civil Service Commission or DOLE (CSC Chairman and Dole Sec jointly approve) Petition for Certification Election if filed with the BLR RIGHTS OF LEGITIMATE LABOR ORGANIZATIONS Act as the representative of its members for the purpose of collective bargaining Certified as the exclusive bargaining representative of all employees in an appropriate collective unit for purposes of collective bargaining Furnished with the annual audit financial statements of employer Own property (real/personal) for the use and benefit of its members and the labor organization Sue and be sued in its registered name Undertake all other activities designed to benefit the organization and its members, including cooperative, housing welfare and other projects not contrary to law Collect reasonable membership fees, union dues, assessments and fines and other contributions 2 KINDS OF UNIONS (Purpose) 1) For purposes of Collective Bargaining (called "Labor Organization") any union or association of employees which exists for collective bargaining purposes or for dealing with employers regarding terms & conditions of employment 2) For Mutual Aid and Protection (called "Worker's Association") - an association of workers organized for its members' mutual aid and protection or for any legitimate purpose other than collective bargaining *Any employee, whether employed for a definite period or not, shall, beginning on his first day of service, be considered an employee for purposes of membership in any labor union
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LABOR LAW (STANDARDS AND RELATIONS) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 UNION SECURITY CLAUSE union can determine membership and prescribe conditions for its acquisition and retention cannot be used by union officials against an employer, much less their own members except with a high sense of responsibility, fairness and judiciousness CLOSED SHOP - only union members can be hired and workers must
remain union workers/members to retain employment UNION SHOP - non-members may be hired, but to retain employment, must
become union members within a certain period thereafter
MODIFIED UNION SHOP - employees who are not union members at the time of the signing of the contract need not join the union, but all workers hired thereafter should join MAINTENANCE OF MEMBERSHIP - no employee is compelled to join the union, but all present or future members must, as a condition of employment, remain in good standing with the union
EXCLUSIVE BARGAINING SHOP - the union is recognized as the exclusive
bargaining agent for all employees, whether union members or not BARGAINING FOR MEMBERS ONLY - the union is recognized as the
bargaining agent only for its own members AGENCY SHOP - an agreement whereby employees must either join the
union or pay to the union as the exclusive bargaining agent a sum equal to that paid by the members. This is directed against the "free rider" employees who benefit from union activities without contributing to union support o prevent a situation of non-union members enriching themselves at the expense of union members. PREFERENTIAL SHOP - agreement wherein management undertakes to
give preference to union members in the hiring of employees, whether or not as regulars HIRING HALL - agreement wherein list of employees are given a chance to
determine who to employ/regularize General Rule :
All employees in the bargaining unit covered by the union security clause are subject to its terms
Exception : Any employee who at the time the agreement takes effect is a bona fide member of a religious organization which prohibits its members from joining labor unions on religious grounds Employees already in the service and already members of a labor union or unions other than the majority union at the time the agreement took effect Supervisors ineligible under the Act to join the majority union because of the membership therein of employees under their supervision Employees excluded from the agreement by express terms UNFAIR LABOR PRACTICES acts opposed to workers' right to organize *2 Elements : Employer-employee relationship between the offender offended Act done is expressly defined in the Labor Code as ULP
and
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LABOR LAW (STANDARDS AND RELATIONS) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 *REMEDIES: 1. Civil Aspects Labor Arbiter who shall resolve within 30 calendar days from submission for decision recovery of civil liability in the administrative proceedings shall bar recovery under the Civil Code substantial evidence enough 2. Criminal Aspects Must be proved independently from labor case Prosecution not possible until after finality of judgment in the labor case Admin/civil judgment not evidence of ULP insofar as the criminal case is concerned During the pendency of admin proceeding, the running of prescription of criminal offense shall be interrupted ULP OF EMPLOYERS 1. Restraint, interference or coercion in their exercise of the right to selforganization no excuse that conduct was unintentional and innocent - Totality of Conduct Doctrine : culpability of employer's remarks were to be evaluated no only on the basis of their implicit implications, but were to be appraised against the background of and in conjunction with collateral circumstances (history of employer's labor relations + anti-union bias) - Doctrine of Successor-Employer : new company will be treated as a continuation or successor of the one that closed in the new or takeover company is engaging in the same business as the closed company or department, or is owned by the same people, and the "closure" is calculated to defeat the worker's organizational right in which case the closure may be declared a subterfuge *Factors to Determine Continuity : a. Retention of control b. Use of the same plant or factory c. Use of the same or substantially the same employees, workers, supervisors or managers d. Similar or substantially the same work or production under similar or substantially the same working conditions e. Use of the same machinery and equipment f. Manufacture of the same products or the performance of the same services 2. Yellow Dog Contract - contract whereby an employee agrees that during the period of his employment he will not become a member of a labor union 3. Contracting work out - services or functions being performed by union members - determining factor : motivation *Runaway Shop : industrial plant moved by its owners from one location to another to escape union labor regulations or state laws; a plant removed to a new location in order to discriminate against employees at the old plant because of their union activities 4. Discrimination (wages, hours of work, other terms & conditions of employment)
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LABOR LAW (STANDARDS AND RELATIONS) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 Purpose : to encourage /discourage membership in any labor org'n 5. Indirect discrimination against someone who has filed charges or for having given or about to give testimony against the employer under the Labor Code 6. Violation of duty to Bargain 7. Pay negotiation or attorney's fees to the union or its officers or agents as part of the settlement of any issue in collective bargaining or any other dispute. 8. Violation of the CBA - Flagrant & malicious refusal to comply with the economic conditions or provisions thereof 9. Initiates, dominates, assists otherwise interferes with the formation or administration of any labor organization including the giving of financial or other support to its organizers or officers RELIEF IN ULP CASES - not subject to compromise Cease and desist order where : Restrained conduct was an issue in the case There was a finding of fact on said misconduct Finding of fact supported by evidence Reinstatement, Payment of Backwages Disestablishment - withdrew all recognition from the dominated labor union Order to bargain • • •
ULP OF LABOR ORGANIZATIONS 1) Restraint, interference or coercion in their exercise of the right to selforganization Interference in itself is not prohibited, ULP only if it amounts to restraint or coercion 2) Causes employer to discriminate between union and non-union members or members of another union 3) Violation of duty or refusal to bargain collectively
4) Featherbedding : employee practices which create or spread employment by unnecessarily maintaining or increasing the number of employees used or the amount of time consumed to work on a particular job 5) Accept/ask for negotiation or attorney's fees from employers as part of the settlement of any issue in collective bargaining or any other dispute
6) Gross violation of CBA (if not gross, not ULP) -
Flagrant & malicious refusal to comply with the economic conditions or provisions thereof JURISDICTION OF VOLUNTARY ARBITRATORS 1. Original and Exclusive all unresolved grievances arising from the interpretation or implementation of the CBA those arising from the interpretation or enforcement of company personnel policies 2. All other labor disputes AGREED to be referred to it by the parties •
•
Grievance machinery, after
automatically referred
Award to be made
Final
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LABOR LAW (STANDARDS AND RELATIONS) MEMORY AID if unsettled after days 7 calendar days from submission
TERM OF CBA :
ATENEO CENTRAL BAR OPERATIONS 2001 within 20 calendar to Voluntary Arbitrator
10
cal
days
5 years as to the representation aspect Renegotiation of provisions other than representation aspect - not later than 3 years after its execution
BARGAINING UNIT group of employees of a given employer comprised of all or less than all of the entire body of employees, which the collective interests of all he employees, consistent with equity to the employer, indicate to be the best suited to serve the reciprocal rights and duties of the parties under the CBA EXCLUSIVE BARGAINING REPRESENTATIVE labor organization designated or selected by the majority of the employees in an appropriate bargaining unit despite having an EBR, an individual employee or group of employees shall have the right at anytime to present grievances to their employers Participation of Workers in Policy and Decision Making - workers shall have the right subject to such rules and regulations as the Secretary of Labor and Employment may promulgate, to participate in policy & decision making processes of the establishment where they are employed insofar as said processes will directly affect their rights, benefits, and welfare pursuant to this, Labor-Management Councils may be formed SECURITY OF TENURE ~ applies to all establishment or undertakings whether for profit or not CLASSES OF EMPLOYEES 1. REGULAR ~ engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer 2. PROJECT ~ one whose employment has been fixed for a specific project or undertaking the completion of which has been determined at the time of engagement of the employee (SO EVEN IF MORE THAN I YR., NOT NECESSARILY REGULAR) *becomes regular if: a. Job is usually necessary or desirable in the usual business or trade AND b. Repeated rehiring 3. SEASONAL ~ one whose work or services to be performed is seasonal in nature and the employment is for the duration of the season 4. CASUAL ~ activity performed is not usually necessary or desirable in the usual business or trade of the employer, not project and not seasonal Except: if he has rendered at least 1 year of service, whether such service is continuous or broken = considered a REGULAR employee with respect to the
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LABOR LAW (STANDARDS AND RELATIONS) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 activity in which he is employed and his employment shall continue while such activity exists
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LABOR LAW (STANDARDS AND RELATIONS) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 5. PROBATIONARY ~ General Rule: Not Exceed 6 mos. Except: 1. covered by an apprenticeship agreement stipulating a longer period 2. voluntary agreement of parties (especially when the nature of the work requires a longer period) 3. the employer gives the employee a second chance to pass the standards set ~ may be terminated a) just cause b) when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to employee at the time of his engagement ~ if allowed to work after the probationary period, he shall be considered a REGULAR employee 6. FIXED TERM ~ allowed if: - period is agreed upon knowingly and voluntarily by the parties without force, duress, or improper pressure exerted on the employee - satisfactorily appears that employer and employee dealt with each other on more or less equal terms with no moral dominance exercised by the employer on the employee - term employment is not resorted to defeat the rights of the workers’ rights ** EFFECTS OF REMOVAL WITHOUT CAUSE : 1. entitled to reinstatement 2. without loss of seniority and other privileges 3. entitled to full backwages, inclusive of allowances and other benefits or their monetary equivalent TERMINATION
JUST CAUSE
a. GROUNDS 1. Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work (work-related) 2. Gross and habitual neglect by the employee of his duties 3. Fraud or willful breach by employee of the trust reposed in him by his employer or duly authorized representative (not mere suspicion) 4. Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or duly authorized representative 5. Other causes analogous to the foregoing b. ABANDONMENT ~ means the deliberate, unjustified refusal of an employee to resume his/her employment. ~ Two elements must be proved: - the intention to abandon; and - an overt act from which it may be inferred that the employee has no more intent to resume his/her work. ~ this is negated by immediate filing of an action for ILLEGAL DISMISSAL
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LABOR LAW (STANDARDS AND RELATIONS) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 c. DUE PROCESS 1. written notice containing a statement of the causes for termination 2. a hearing or conference where the employee, who may be assisted by counsel if he so desires, is given the opportunity to respond to the charge, present his own evidence, or rebut evidence against him 3. written notice of termination served on the employee indicating that grounds have been established to justify his termination based on due consideration of all the circumstances 4. right to contest the validity or legality of his dismissal by filing a complaint with the NLRC 5. burden of proof is with the employer 6. SUSPENSION OF EFFECTS PENDING RESOLUTION = if there is a prima facie finding that the termination may cause a serious labor dispute or is in implementation of mass layoff, the Secretary of Labor may suspend the effects of the termination
RESIGNATION
a. WITHOUT JUST CAUSE 1. at least 1 month prior notice 2. employee may be held liable for damages for failure to give notice b. WITH JUST CAUSE 1. Grounds a. serious insult on the honor and person of employee by the employer or his representative b. inhumane and unbearable treatment accorded to the employee c. commission of a crime against person of the employee or any of the immediate members of his family d. other causes analogous to the foregoing 2. Notice Not Necessary
EMPLOYMENT NOT DEEMED TERMINATED a. bona fide suspension of the operation of a business/undertaking for a period of not more than 6 months b. fulfillment by the employee of a military or civic duty ~ Effects : Employer shall reinstate the employee to his former position without loss of seniority rights IF employee indicates his desire to resume his work not later than 1 month from resumption of operations of his employer or his relief from the military or civic duty
PREVENTIVE SUSPENSION ~ justified where the employee’s continued employment poses a serious and imminent threat to the life or property of the employer or of his coworkers ~ must not exceed 1 month ~ only for the purpose of investigating the offense to determine whether he is to be dismissed or not ~ if more than 1 month, the employee must be actually reinstated or reinstated in the payroll ~ officers liable only if with malice and bad faith
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LABOR LAW (STANDARDS AND RELATIONS) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 AUTHORIZED CAUSES
a. GROUNDS 1. introduction to labor-saving devices ~ view to effecting more economy and efficiency in its method of production 2. redundancy ~ exists where the services of an employee are in excess of what is reasonably demanded by the actual requirements of the enterprise ~ a position has become superfluous as an outcome of a number of factors such as overhiring of workers, decreased volume of business, dropping of a particular product line or service activity previously manufactured or undertaken by the enterprise (THUS IT ONLY REQUIRES SUPERFLUITY NOT DUPLICATION OF WORK) 3. retrenchment ~ resorted primarily to avoid or minimize business losses ~ criteria of who to lay off (1) less preferred status (2) efficiency rating (3) seniority (4) performance ~ standards of retrenchment a. losses expected should be substantial and not merely de minimis in extent b. substantial loss apprehended must be reasonably imminent c. retrenchment must be reasonable necessary and likely to effectively prevent the expected losses d. alleged losses, if already realized, and the expected imminent losses sought to be forestalled, must be proven by sufficient and convincing evidence 4. closure of business as a result of grave financial loss 5. closure not due to losses b. -
NOTICE AND SEPARATION PAY written notice served on the worker and the DOLE at least 1 month before the intended date thereof Separation Pay: 1 month pay or 1 month pay 1 month pay or at least 1/2 month for every year of service pay for every year of service whichever is higher whichever is higher installation of retrenchm labor-saving devices ent to prevent losses redundancy closures or cessation of operations of establishments or undertaking NOT due to serious business losses or financial reverses disease
** A fraction of at least 6 moths shall be considered as one year.
c. Backwages- granted on grounds of equity for earnings which a worker has lost due to his illegal dismissal. - full backwages are to be awarded to an illegally dismissed employee and should not be diminished or reduced by earnings derived elsewhere
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LABOR LAW (STANDARDS AND RELATIONS) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 d. Ailment or disease (other authorized causes: non-economic ground) ~ when his continued employment is prohibited by law or prejudicial to his health or to the health of his co-employees ~ there is a certification by a competent public health authority that the disease is of such nature or at such stage that it cannot be cured within a period of 6 months even with proper medical treatment ~ SEPARATION PAY : equivalent to at least 1 month salary or 1/2 month salary for every year of service, whichever is higher
RETIREMENT PAY LAW (RA 7641) A. WHO ARE EXEMPTED: ~ retail, service, agricultural establishments ~ operations employing not more than 10 employees or workers B. KINDS: 1. OPTIONAL - 60 years old / 5 years in service (includes authorized absences/vacations/regular holidays/mandatory military or civic service) 2. COMPULSORY - 65 years old/ regardless or years of service (company not bound to dismiss employee) C. BENEFITS: 1/2 month salary per year of service which shall include: 1. 15-day basic wage, plus 2. 1/12 of the 13 th month pay, plus 3. 5-day Service incentive leave pay plus * a fraction of at least 6 mos. considered as one whole year 4. other benefits as maybe agreed upon by er and ee ** MINIMUM ~ no. 1 + no. 2 + no. 3 = n x years of service ~ minimum only so employer must pay deficiency in case agreed amount be less than the above DISPUTE SETTLEMENT A. Labor Dispute ~ includes any controversy or matter concerning terms or 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 B.
Labor Arbiters/NLRC 1. JURISDICTION = Labor Arbiter NLRC CA ~ Cases involving all workers, whether agricultural or non agricultural: a. ULP cases (may include claims for actual, moral, exemplary and other forms of damages, attorney's fees, other affirmative relief) b. termination disputes c. if accompanied with a claim for reinstatement , those cases that workers may file involving wages, rates of pay, hours of work, and other terms and conditions of employment d. claims for actual, moral, exemplary and other forms of damages, arising from the employer-employee relationship e. cases arising from any violation of Art.264 of the Labor Code, including questions involving the legality of strikes and lockouts f. Except claims for EC, SSS, Medicare and maternity benefits, all other claims arising from employer-employee relations, including those of persons on domestic or household service, including an amount
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LABOR LAW (STANDARDS AND RELATIONS) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 exceeding P5,000 regardless of whether accompanied with a claim for reinstatement 2. JURISDICTION = NLRC ~ EXCLUSIVE appellate jurisdiction over all cases decided by Labor Arbiters 3. GRIEVANCE MACHINERY & VOLUNTARY ARBITRATION ~ cases arising from the interpretation of the CBA and those arising from the interpretation or enforcement of company personnel policies * monetary claim based on a CBA provision is under the exclusive jurisdiction of the grievance machinery & VA 4. OCULAR INSPECTION = Labor Arbiter & NLRC ~ at any time during working hours 5. PROCEDURE ~ the rules of evidence prevailing in courts of law or equity shall not be controlling ~ it is the spirit and intention of this Code which shall be used as reasonable means to ascertain the facts in each case ~ without regard to technicalities of law and procedure all in the interest of due process ~ parties may be represented by legal counsel but it shall be the duty of the Chairman, any presiding Commissioner or commissioner or any labor arbiter to exercise compete control of the proceedings at all stages 6. APPEARANCES AND FEES A. When non-lawyers appear before the NLRC/LA 1. if they represent themselves 2. if they represent their organizations or members thereof B. Attorney's Fees, negotiations fees or similar charges of any kind arising from any collective bargaining negotiations or conclusion of the collective agreement shall be imposed on any individual member of the contracting union ~ attorney's fees may be charged against union funds in an amount to be agreed upon by the parties ~ contract, agreement to the contrary shall be VOID 7. APPEAL ~ WHEN: within 10 calendar days from receipt of decision of LA ~ GROUNDS: a. prima facie evidence of abuse of discretion on the part of LA b. the decision, order or award was secured through fraud or coercion including graft and corruption c. pure questions of law d. raised serious errors in the findings of facts which could cause grave or irreparable damage or injury to the appellant ~ ADDITIONAL REQUIREMENT: in case of judgment involving a monetary award-employer (appellant) may perfect the appeal only upon the posting of a cash or surety bond issued by a reputable bonding company duly accredited by the NLRC in the amount equivalent to the monetary award in the judgment appealed from 8. ORDER OF REINSTATEMENT OF LABOR ARBITER ~ self-executing with no need for a writ of execution ~ immediately executory even pending appeal ~ either admitted back to work under the same terms and conditions prevailing prior to his dismissal or separation or merely reinstated in the payroll ( at the option of the employer, but which choice must be communicated to the employee by the employer) ~ posting of a bond shall not stay the execution of reinstatement
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LABOR LAW (STANDARDS AND RELATIONS) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 9. FILING OF MEMORANDUM OF: A. APPEAL ~ furnish other party within 10 calendar days answer, then within 20 calendar days decision by NLRC, then within 10 calendar days finality B. ENFORCEMENT: ~ any law enforcement agency may be deputized by the Secretary of DOLE of the NLRC ~ issuance of writ of execution on a judgment within 5 years from date it becomes final and executory motu proprio or in motion of any interested party C. o o
Bureau Of Labor Relations original jurisdiction: appeal to Office of the Secretary appellate jurisdiction: appeal to Court of Appeals
1. JURISDICTION a. Inter-union conflicts b. Intra-union conflicts c. All disputes, grievances or problems arising from or affecting labormanagement relations in all workplaces EXCEPT those arising from the implementation or interpretation of the CBA which shall be the subject of grievance procedure and/or voluntary arbitration 2. COMPROMISE AGREEMENTS ~ if voluntarily agreed upon by the parties with the assistance of the BLR or the regional office of DOLE final and binding upon the parties ~ the only time NLRC or any courts can assume jurisdiction over issues involved therein: a. in case of non-compliance thereof b. if there is prima facie evidence that the settlement was obtained through fraud, misrepresentation or coercion 3. POWER TO ISSUE SUBPOENA ~ when relevant to a labor dispute under its jurisdiction either at the request of any interested party or at its own initiative 4. REGISTRY OF UNIONS AND FILING OF COLLECTIVE AGREEMENTS a. registry of LLO b. file of all CBA and other related agreements, records of settlement of labor disputes, copies of orders, and decisions of voluntary arbitrators ~ open and accessible to interested parties under conditions prescribed by the Secretary of DOLE, provided that no specific information submitted in confidence shall be disclosed UNLESS authorized by the Secretary OR when it is at issue in any judicial litigation OR when public interest or national security so requires ~ submitted within 30 calendar days from execution of CBA to the BLR/DOLE for registration accompanied with verified proofs of its posting in 2 conspicuous places in the place of work and ratification by the majority of all the workers in the bargaining unit 5. PRIVILEGED COMMUNICATION ~ information and statements made at conciliation meetings shall NOT be used as evidence in the NLRC ~ conciliators and similar officials shall not testify in any court or body regarding any matters taken up at conciliation proceeding conducted by them 6. APPEAL ~ within 10 calendar days to the Secretary ~ GROUNDS: a. grave abuse of discretion b. gross incompetence
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LABOR LAW (STANDARDS AND RELATIONS) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001
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LABOR LAW (STANDARDS AND RELATIONS) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 SUMMARY OF JURISDICTION A. VOLUNTARY ARBITRATORS ~ supervised by National Conciliation and Mediation Board (NCMB) ~ cases decided within 20 calendar days, final within 10 calendar days 1. unresolved grievances arising from the interpretation or implementation of the CBA EXCEPT gross violation of the CBA ~ unresolved within 7 cal days from submission to grievance machinery 2. unresolved grievances arising from the interpretation or enforcement of company personnel policies 3. upon agreement of parties = any dispute B. MED-ARBITERS/BLR 1. petition for certification election (Regional Director) 2. registration of CBA/ Labor Organization 3. inter-union conflicts (representation issue/cancellation of registration) 4. intra-union conflicts (election of officers/ compliance with CBL) 5. all disputes, grievances, or problems arising from or affecting labor management relations in all workplaces whether agricultural or nonagricultural EXCEPT those arising from the implementation or interpretation of CBA C. POEA ~ appeal to Secretary of DOLE within 10 calendar days 1. cancellation/ revocation/ supervision of license or authority ~ appeal to NLRC within 10 calendar days 2. violation of overseas employment contracts 3. disciplinary cases filed against overseas contract workers ~ original and exclusive jurisdiction over all claims arising out of an employeremployee relationship or by virtue of any law or contract involving Filipino overseas workers including disciplinary cases; and all pre-employment cases which are administrative in character involving or arising therefrom, or violations of the conditions for issuance of license or authority to recruit workers D. LABOR ARBITERS/NLRC ~ appeal within 10 calendar days 1. ULP (priority resolved within 30 calendar days from submission for decision) 2. termination disputes 3. claims for wages, rates of pay, hours of work and other terms and conditions of employment 4. claims for actual, moral, exemplary and other forms of damages arising from employer-employee relationship 5. cases arising from prohibited activities during strikes, including questions involving the legality of strikes and lockouts 6. all other claims arising from employer-employee relationship involving an amount exceeding P5000 regardless of whether accompanied by a claim for reinstatement except ECC, SSS, Medicare, & maternity benefits E. REGIONAL DIRECTORS 1. Secretary of DOLE enforcement power (inspection) = no limit to claims 2. adjudicatory power maximum of P5000 total claim/employee ~ summary appeal to NLRC within 5 calendar days 3. violation of the CBL and right and conditions of membership ATTORNEY'S FEES - Proceeding for recovery of wages ~ may be assessed against monetary benefits awarded (10%) - CBA negotiations
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LABOR LAW (STANDARDS AND RELATIONS) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 ~ charged against union funds in an amount to be agreed upon by parties
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LABOR LAW (STANDARDS AND RELATIONS) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 PRESCRIPTIVE PERIODS ULP MONEY CLAIMS OFFENSES UNDER Labor Code ILLEGAL DISMISSAL
1 year 3 years 3 years 4 years
PETITION FOR CERTIFICATION ELECTION A. ORGANIZED ESTABLISHMENT (w/ CBA) What: verified petition for questioning the majority status of the incumbent bargaining agent When filed: w/ CBA : within the 60 day period before the expiration of the CBA W/o CBA: anytime except certification year rule OR deadlock-bar rule With whom: DOLE (Regional Office) Requisite: written consent of at least 25% of all employees in the bargaining unit ~ under the law, 25% is not a requisite, but makes conduct of a CE mandatory if submitted ~ under the rules, 25% is a requisite, absence of such is a ground for dismissal of the petition. B. UNORGANIZED ESTABLISHMENT (no CBA) 1) petition by a legitimate labor organization (no 25% requirement) 2) employer when requested to bargain collectively Certification election Requirement for valid election -- majority of all eligible voters cast their votes Union to be certified -- labor union receiving majority of the valid votes cast Procedure: Petition with decided w/in 20 file appeal w/ Reg’l Ofc but 15 days to decide; DeciMed-Arbiter working days it is Secretary who decides sion final & unappealable •
•
Petition where no CBA : anytime Except - within 1 yr. From date of issuance of a final certification election result - after bargaining deadlock has been submitted (to which an incumbent bargaining agent is a party) to conciliation/arbitration or became subject of valid notice to strike or lockout Run-off election (within 5 calendar days from close of election) 3 or more choices o results of election - no choice received majority of valid votes cast o total # of votes for all contending unions at least 50% of total votes cast THUS: conducted between labor unions receiving the 2 highest number of votes Presumption: valid election, i.e. majority of eligible voters voted Conduct Of Certification Election notice of at least 5 working days before actual date (2 most conspicuous place) election proper - any party in interest may protest to be recorded in the minutes, otherwise, it is deemed waived (Protests must be formalized with Med-Arbiter within 5 days from close of election proceedings)
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LABOR LAW (STANDARDS AND RELATIONS) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 If no protest, election officer proclaims and When a protest is perfected or any certifies results challenge or eligibility issue raised, only the Med-Arbiter can proclaim and certify the winner within 20 working days from filing
Contents of Notice : 1 date of election 2 names of contending parties 3 description of bargaining unit 4 list of eligible voters • • •
all employees in bargaining unit can vote CHALLENGE: before employees cast vote Abstention not valid vote
Four (4) Bars to holding a Certification Election:
1) certification year -- w/in 1 yr. from issuance of a final certification election result Exception: unusual circumstances exist as when a change in the structure of the membership of the contracting union occurs in such a way that a reasonable doubt arises as to whether it remains the labor union which the employees desired to represent them in the first place with an accompanying change in the officials, constitution, by-laws, and bargaining authority of the contracting union.
2) dead-lock bar rule -- during the existence of a bargaining deadlock to which an incumbent or certified bargaining agent is a party and which had been submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout
3) contract-bar rule -- during the existence of CBA Exception: within the freedom period *CBA need not be certified, need only to be registered under Art. 231 *Applies as well after the lapse of the 60 day freedom period when old CBA is extended until a new one is signed
4) negotiations bar -- when the duly recognized or certified union has commenced negotiations with the employer in accordance with Article 250 of the Labor Code within the one-year period of a certification year Bargaining Representative -- LLO or any duly authorized officer or agent of such organization whether or not employed by the employer Certification Election -- process of determining, through secret ballot, the sole and exclusive bargaining unit for purposes of collective bargaining Consent Election -- election voluntarily agreed upon by the parties to determine issue of majority representation of all workers in the appropriate collective bargaining unit where a petition for CE had been filed and, upon the intercession of the Med-Arbiter, the parties agree to hold a consent election, the results thereof shall constitute a bar to the holding of a CE for one year from the holding of such consent election where no PCE had been filed but the parties have agreed to hold a consent election, the results thereof shall not constitute a bar to another CE, unless the winning union had been voluntary recognized.
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LABOR LAW (STANDARDS AND RELATIONS) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 Run-off Election -- election between the labor unions receiving the 2 highest number of votes when a certification election which provides for 3 or more choices results in no choice receiving majority of valid votes cast, where the total number of votes for all contending unions is at least 50% of the number of votes cast
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LABOR LAW (STANDARDS AND RELATIONS) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 Organized Establishment -- a firm or company where there is a recognized or certified exclusive bargaining agent Representation Officer -- person duly authorized to conduct and supervise certification Elections PETITION FOR CERTIFICATION ELECTION : Who files: a) legitimate labor unions b) employer - when requested to bargain collectively When filed a) absence of CBA duly-registered -- any time Except: certification year-rule (not w/in 1 year from issuance of final C.E. result) deadlock bar rule (submitted to conciliation/arbitration OR had become the subject of a valid notice of strike/lockout b) with a CBA duly-registered -- during the freedom period 25% support
BARGAINING NEGOTIATIONS Request to Bargain by union => Counter-Proposal w/in 10 calendar days or reasonable period of time REGISTRATION OF CBA WITH BIR REGIONAL OFFICE -- 5 copies within 30 calendar days from execution with verified proof of : a. posting in 2 conspicuous places b. ratification by majority of all workers Regional office -- 2 copies; NCMB -- 1 copy; BLR -- 2 copies -- registration fee of P1000.00 --- employer's cost -- certificate of registration within 5 cd from receipt of agreement Voluntary Arbitration : - involves interpretation/construction of :
CBA Company Personnel Policies
any person accredited by the NCMB as such or any person named or designated in the
CBA by the parties to act as their voluntary arbitrator one chosen with or without the assistance of the NCMB pursuant to a selection procedure agreed upon in the CBA or any official that may be authorized by the Secretary of Labor and Employment t act as voluntary arbitrator upon the written request and agreement of the parties to a labor dispute. Powers: holds hearings receive audience take whatever action is necessary to resolve the issue subject of the dispute
Procedure:
all parties entitled to attend proceedings adjournment for cause or upon agreement of the parties
decision within 20 calendar days from submission final/executory after 10 calendar days from receipt
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LABOR LAW (STANDARDS AND RELATIONS) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 Cost: proportionate sharing scheme in the CBA fixing of fee (factors to be considered)
a. b. c. d. e.
nature of the case time consumed in hearing the case professional standing of the voluntary arbitrator capacity to pay of the parties fees provided for in the Rules of Court shared equally by parties unless agreed otherwise Special Voluntary Arbitration Fund administered by the NCMB amount of subsidy in appropriate cases shall e determined by the NCMB upon recommendation of the Council Labor-Management Committee no LLO exists formed voluntarily by workers and employees for the purpose of promoting industrial peace Labor-Management Council organized establishment enable workers to participate in policy and decision making process in the establishment insofar as said processes will directly affect their rights, benefit and welfare except those which are covered by CBA's or are traditionally areas of bargaining RA 6971 -- Productivity Incentives Act of 1990 Labor-Management Committee both management and labor shall have equal voting rights representations of labor organized -- designated by the Collective bargaining agents in the bargaining unit unorganized -- elected by at least a majority of all rank and file employees who have rendered at least 6 months of continuous service Productivity Incentives Program contains provisions for the manner of sharing and the factors in determining productivity bonuses productivity granted ,1/2 (percentage increase in the productivity of the business enterprise) granted salary bonuses = increases in current productivity over the average for the preceding 3 consecutive years entitles employer to special deduction from gross income equivalent of 50% of the total allowable ordinary and necessary business deductions for said bonuses under the NIRC Strike : any temporary stoppage of work by concerted action of employees as a result of an industrial labor dispute : not a strike: mass resignation Lockout : temporary refusal of an employer to furnish work as a result of an industrial or labor dispute Internal Union Dispute - includes all disputes or grievances arising from any violation of or disagreement over any provision of the constitution and by-laws of a union, including any violation of the rights and conditions of union member ship provided for in this Code
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LABOR LAW (STANDARDS AND RELATIONS) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 Strike Breaker -- any person who obstructs, impedes, or interferes with by force, violence, coercion, threats, or intimidation, any peaceful picketing by employees during any labor controversy affecting wages, hours, and conditions of work or in the exercise of the right of self-organization or collective bargaining Strike Area : -- establishment, warehouses, depots, plants or offices, including the sites or premises used as run-away shops of the employer struck against as well as the immediate vicinity actually used by picketing strikers in moving to and fro before all points of entrance to and exit from said establishment Valid Purpose for Concerted Activities collective bargaining mutual benefit and protection Grounds for strikes and lockouts : Deadlock [after reasonable efforts] ULP [good faith of the strikers as to the existence of ULP is sufficient, depending on circumstances] * violations of CBA that are not flagrant and/or malicious refusal to comply with its economic provisions are not ULP; not strikeable Personality : LLO or recognized bargaining agent in case of economic strike
1. NOTICE OF STRIKE : Bargaining deadlocks ---------- ULP ----------
Cooling off period 30 days 15 days Dispensed with if duly elected officer of union is
dismissed such as to constitute union busting Duty of DOLE to exert all efforts at mediation and conciliation to effect a voluntary settlement 30 day/15 day cooling off period mandatory except : cases of union-busting 7-day strike ban mandatory 2. STRIKE VOTE: decision must be approved by a majority of the total union membership in the bargaining unit concerned obtained by secret ballots in meetings or referenda called for that purpose (or of the BoD of the corp. case of a lockout) 3. REPORT OF STRIKE VOTE RESULTS: DOLE must be furnished with the results of the voting at least 7 days before the intended strike or lockout subject to the cooling off period (7 day strike ban) DOLE informed of meeting 24 hours before Peaceful Means : Violence not pervasive and widespread Ingress and egress rule Assumption of Jurisdiction by Secretary of Labor (resolved within 30 calendar days) 1. Discretionary ~ In his opinion there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest
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LABOR LAW (STANDARDS AND RELATIONS) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 may certify the same to the commission for compulsory arbitration Effect : automatically enjoins the intended on impending strike or lockout but if one has already taken place, all striking or locked out employees shall immediately return to work and the employer shall immediately resume operations and re-admit all workers under the same terms and conditions prevailing before the strike or lock-out 2. Mandatory: (within 24 hours) ~ In labor disputes adversely affecting the continued operation of hospitals, clinics, or medical institutions Duty of striking union or locking out employer to provide and maintain an effective skeletal workforce of medical and other health personnel, where movement and service shall be unhampered and unrestricted as are necessary to insure the proper and adequate protection of the life and health of its patients most especially emergency cases for the duration of the strike or lock-out *President of the PI : may determine the industries, which are in his opinion indispensable to national interest. He may intervene at any time and assume jurisdiction over any such labor dispute in order to settler or terminate the same *Decision of the President, Secretary of labor, NLRC => final and executory after receipt thereof by the parties PROHIBITED ACTIVITIES: 1) strike or lock-out without first having bargained collectively 2) strike or lock-out without the necessary notice being filed with the DOLE 3) strike or lock-out without the necessary vote first having been obtained and reported to the DOLE 4) strike or lock-out after DOLE has assumed jurisdiction or the President or after certification or submission of dispute to the compulsory arbitration/voluntary arbitration or during the pendency of cases involving the same grounds for the strike or lockout 5) knowingly participating in illegal strike/knowingly participates in the commission of illegal acts during a strike ground for termination of employment 6) obstruct, impede, or interfere with by force, violence, coercion, threats, or intimidation any peaceful picketing by employees during any labor contriversy or shall abeit or aid such obstruction or interference 7) employment or use of any strikebreaker/ employed as a strike breaker 8) bringing in, introducing, or escorting by any public officer or employee, including officers and personnel of the AFP or PNP, or any armed person in any manner of any individual who seeks to replace strikers in entering or leaving the premises of a strike area or work in place of strikers 9) commit any act of violence, coercion or intimidaion while engaged in picketing or obstruct the ingress or egress from the employer's premises for lawful purposes or obstruct public thoroughfares (must be pervasive and widespread/consistently and deliberately resorted to as a matter of policy) **See Sec. 7 (g) of D.O. 9 regarding prohibition on contracting out a job, work or service directly related to the business or operation of the principal by reason of a strike or lockout whether actual or imminent. Improved Offer Balloting ~ Referendum by the DOLE on the improved offer of the employer or on the reduced offer of the union (on or before the 30 th day of the strike or lock-out) where at least a majority of the union members/BOD, trustees, or the partners holding the controlling interest vote and accept the improved/reduced offer, the workers shall immediately return to work and the employer shall thereupon readmit them upon the signing of the agreement Requirement for Arrest, Detention of Union Members/Organizers for union Activities General Rule : previous consultations with the Secretary of Labor
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LABOR LAW (STANDARDS AND RELATIONS) MEMORY AID Exception
: :
ATENEO CENTRAL BAR OPERATIONS 2001 grounds of national security and public peace in case of commission of a crime
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LABOR LAW (STANDARDS AND RELATIONS) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 GUIDELINES FOR THE CONDUCT OF THE INP/AFP PERSONNEL DURING STRIKES/LOCKOUT AND LABOT DISPUTES IN GENERAL Involvement limited to the :
a) maintenance of peace and order b) enforcement of laws and legal order of duly constituted authorities c) performance of special functions as maybe provided by law 1) elements of the Police Force should first be called upon to render assistance 2) when it is unavailable or inadequate, CAPCOM or METRODISCOM may call upon the Constabulary to render assistance 3) personnel from the army, Navy, or Air Force only when directed by the President or personally by the Secretary of National Defense upon consultation with the Secretary of Labor and Employment or when requested by the latter. *Personnel related by affinity or consanguinity within the 4 th civil degree to any official/leader of the parties in the controversy or has any financial or pecuniary interest therein - not allowed to render services in connection with a strike or lock-out PEACE-KEEPING DETAIL personnel detailed shall be in uniform, with proper namecloth at all times, personnel shall observe strict neutrality in his dealings with both parties to the controversy stationed such that their presence may deter the commission of criminal acts from either side maintain themselves outside a 50 meter radius from the picket line except if the 50 meter radius includes a public thoroughfare, they may station themselves in such public thoroughfares for the purpose of insuring the free flow of traffic •
•
•
ARRESTS/SEARCHES AND SEIZURES effected only on the basis of an existing and valid warrant any person who obstructs the free and lawful ingress to and egress from the employer's premises or who obstructs public thoroughfares may be arrested and accordingly charged in court as well as any person who shall have in his possession deadly weapons in violation of BP Blg. 06 such as knives, bolos, blunt or pointed instruments and firearms or explosives in violation of PD 1896 • •
•
Service of DOLE, Court or Lawful Orders/Writs primary concern of the DOLE representatives, sheriff, representative of the govt. agency issuing the order respectively role of the AFP/INP is only supportive •
•
Administrative Jurisdiction determination of whether a strike, picket or lock-out is legal or not should be left to DOLE personal escort only upon direction of competent authority other party shall be informed accordingly all escorts shall be in uniform at all times •
• • •
Socializing/Liaison discouraged from socializing with any of the parties involved during the pendency shall not, under any pretext, accept an invitation from either of the parties liaison established and maintained with representatives of DOLE, mgmt., and union for the purpose of maintaining peace and order as well as to maintain a continuing peaceful dialogue • • •
Administrative Action all complaints/reports leveled against any personnel of the INP/AFP on the occasion of strike/lock-out shall be acted with dispatch •
