Labor Relations

San Beda College of Law MEMORY AID

BOOK FIVE LABOR RELATIONS TITLE I POLICY AND DEFINITIONS  ART. 211. DECLARATION OF POLICY  LABOR RELATIONS – the interactions between the employer and employees and their representatives and the mechanism by which the standards and other terms and conditions of employment are negotiated, adjusted and enforced.  LABOR RELATIONS LAW – those intended to stabilize the relations of employees and their employers, adjust differences between them through the encouragement of collective bargaining, and settle labor disputes through conciliation, mediation and arbitration. 

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it defines the status, rights, and duties and the institutional mechanisms that govern the individual and collective interactions of employers, employees or their representatives. Absent an employer-employee relation, there is no labor relations to speak of. Collective bargaining process is possible only when there is a labor organization, i.e., (1) labor union or (2) employee association.

POLICY is intended to install industrial democracy centered on collective bargaining, leading to social justice as the end goal. PARTIES TO LABOR RELATIONS CASES: 1. employee’s organization, 2. management, and 3. the public  The public is always to be considered in disputes between

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labor and capital, and it has been held that the rights of the general public are paramount.  Labor relations policy under the LC is embodied in Section 3 Article XIII of the 1987 Constitution which guarantees to all workers their right among others to: 1. Self-organization, 2. Collective bargaining and negotiations, 3. Peaceful and concerted activities including the right to strike in accordance with law, and 4. Participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.  ART. 212. DEFINITIONS EMPLOYER- one who employs the services of others; one for whom employees work and who pays their wages or salaries. any person acting in the interest of an employer, directly or indirectly. The term does not include a labor organization or any of its officers and agents, EXCEPT when acting as an employer. EMPLOYEE- one who works for an employer; a person working for salary or wages.  Shall not be limited to the employees of a particular employer, and it shall include any individual whose work has ceased as a result of or in connection with any current labor dispute or because of any unfair labor practice IF he has not obtained any other: 1. Substantially equivalent and 2. Regular employment (Art.212f) ICAWO vs. CIR (16 SCRA 562): The category of “any employee” is so broad as to justify employee status for supervisors, regular workers, casual

 CHAIRPERSON: Francis Benedict Réotutar  ASSISTANT CHAIRPERSON: Juanito Lim, Jr.  SUBJECT HEADS: Aimee Roselle Sabilala(Labor Standards), Elsa Villaflor(Labor Relations), Maria Fe Taal (Special Laws)  EDP: Flora Sherry Basquiñez  ASST. EDP’S: Jennifer Trinidad, Ma. Jasmine Isip, Emil Bien Ongkiko, Kareen Faye Pioquinto

San Beda College of Law MEMORY AID employees, emergency laborers, substitute workers, seasonal workers, part-time workers and other special work groups. APEX MINING CO., vs. NLRC (196 SCRA 251): Laundrywoman not actually serving the family of the employer but working in the staff houses or within the premises of the employer’s business is a regular employee and is not included in the definition of domestic helper. FELIX vs. BUENASEDA (240 SCRA 139): Residency or resident physician position in a medical specialty is not employment but connotes training and temporary status. (No E-E relationship)  WORKER’S ASSOCIATION - any association of workers organized for the mutual aid and protection of its members or for any legitimate purpose other than for collective bargaining.  INDEPENDENT UNION – It refers to any labor organization operating at the enterprise level whose legal personality is derived through an independent action for registration with the Bureau of Labor Relations (BLR) of the Department of Labor and Employment prescribed under Art. 234. It may be affiliated with a federation, national or industry union, in which case it may also be referred to as an affiliate. FEDERATION - any labor organization with at least 10 locals/chapters or affiliates each of which must be a duly certified or recognized as the sole and exclusive collective bargaining agent of the employees of an appropriate bargaining unit. LEGITIMATE WORKER’S ASSOCIATION – refers to an association of workers organized for mutual aid and protection of its members of for any legitimate purpose other than collective bargaining registered with the Department in accordance with Rule III, Sections 2-C and 2-D of these rules.  LABOR MANAGEMENT COUNCIL

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Deals with the employer on matters affecting the employee’s rights, benefits and welfare. Purposes are to:

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a. b. c.

promote gainful employment improve working conditions and achieve increased productivity (RA 6971)

LABOR ORGANIZATION — any union or association of employees which exists in whole in part for the purpose of collective bargaining with employers concerning terms and conditions of employment. LEGITIMATE LABOR ORGANIZATIONany labor organization which is duly registered with the Department of Labor. The term includes a local/chapter of the Bureau of Labor Relations directly chartered by a legitimate federation or national union which has been duly reported to the Department in accordance with Rule VI, Section 2 of Book V of the Rules Implementing the LC.  LABOR DISPUTE – includes controversy or matter concerning: 1. 2.

any

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.  The test of whether a labor controversy comes within the definition of a labor dispute depends on whether it involves or concerns terms, conditions of employment, or representation.  TYPES OF LABOR DISPUTES: 1. Labor Standards Disputes a. Compensation [e.g., underpayment of minimum wage; stringent output quota; illegal pay deductions]


San Beda College of Law MEMORY AID b. Benefits c.

[ e.g., nonpayment of holiday pay, overtime pay or other benefits] Working conditions [e.g., unrectified work hazards]

2. Labor Relations Disputes a. Organizational right dispute/ unfair labor practice [e.g., coercion, restraint or interference in unionization efforts; reprisal or discrimination due to union activities; company unionism] b. Representation disputes [e.g., determination of the collective bargaining unit; ULP strike; uncertainty as to determination of the sole and exclusive bargaining agent of the employees in an appropriate bargaining unit which is the majority union] c. Bargaining disputes [e.g., refusal to bargain (ULP); bargaining deadlock; economic strike or lockout] d. Contract administration or personnel policy disputes [e.g., noncompliance with CBA provisions (ULP if gross noncompliance with economic provisions); disregard of grievance machinery; violation no strike/no lockout agreement] e. Employment tenure disputes [e.g., non regularization of employees; illegal termination; non-issuance of employment contract]  PARTIES TO A DISPUTE: 1. PRIMARY PARTIES – employer, employees, union 2. SECONDARY PARTIES – voluntary arbitrator, agencies of DOLE (BLR, VAC), NLRC, Sec. of Labor, Office of the President

TITLE II NATIONAL LABOR RELATIONS COMMISSION CHAPTER I

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CREATION AND COMPOSITION  ART. 213. NATIONAL RELATIONS COMMISSION

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 NLRC – an administrative body with quasi-judicial functions and the principal government agency that hears & decides labor-management disputes; attached to the DOLE for program & policy coordination only. POWERS of the NLRC – as amended by R.A. 6715 

EN BANC

1.

Promulgating rules & regulations governing the hearing & disposition of cases before any of its divisions and regional branches and formulating policies affecting its administration and operations.

2.

Under R.A. 7700: to allow cases within the jurisdiction of any division to be heard and decided by any other decision whose docket allows the additional workload.

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DIVISION

1.

Exercises adjudicatory or appellate power over decisions of Labor Arbiters and Regional Directors of the DOLE over monetary claims not over P5,000.00 and all other powers, functions and duties through its divisions.

 TRIPARTISM 

The NLRC is composed of five (5) divisions.

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Three (3) sectors are represented in the composition of the NLRC.

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Each division composed of three commissioners will have


San Beda College of Law MEMORY AID representatives following:

from

 QUALIFICATIONS OF THE CHAIRMAN AND THE COMMISSIONERS: 1. must be a member of the Philippine Bar; 2. must have been engaged in the practice of law in the Philippines for at least 15 years; 3. must have experience or exposure in handling labor management relations for at least 5 years; and 4. preferably a resident of the region where he is to hold office.

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The appointment of the Chairman and the Commissioners of the NLRC are not subject to confirmation by the Commission on Appointments. QUALIFICATIONS OF EXECUTIVE LABOR ARBITERS/LABOR ARBITERS: 1. must be members of the Philippine Bar; 2. must have been engaged in the practice of law in the Philippines for at least 7 years; and 3. must have experience or exposure in handling labor management relations for at least 3 years.

 TERM OF OFFICE OF THE CHAIRMAN, COMMISIONERS, AND LABOR ARBITERS: 

They shall hold office during good behavior until they reach the age of 65 unless removed for causes as provided by law or become incapacitated to discharge the function of his office.

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the

1. from the public sectornominated by the Secretary of Labor 2. workers organizationsnominated by the labor federation 3. employer and management sectornominated by the Employer’s Confederation of the Philippines (ECOP)

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A. EXCLUSIVE AND ORIGINAL JURISDICTION OF THE NLRC: 1. Cases certified to it for compulsory arbitration by the Secretary of Labor under Art. 263 – CERTIFIED CASES; 2. INJUNCTION CASES under Art. 218 and 264; AND 3. CONTEMPT CASES B.

EXCLUSIVE APPELLATE JURISDICTION OF THE NLRC: 1.Cases DECIDED BY LABOR ARBITERS under Art 217b of the Labor Code and Sec 10 RA 8012(Migrant Workers Act); and 2.Cases DECIDED BY THE REGIONAL OFFICES OF DOLE IN THE EXERCISE OF ITS ADJUDICATORY FUNCTION under Art 129 of the Labor Code over monetary claims of workers amounting to not more that P5,000.00  THE NLRC ONLY SITS EN BANC FOR PURPOSES OF: a. promulgating rules and regulations governing the hearing and disposition of cases before any of its divisions and regional branches, and b. formulating policies affecting its administration and operations.  The Commission may only sit en banc for the determination of policies and NOT for purposes of adjudication. (RA 6715)  Adjudication of cases certified to the NLRC, or appealed to it from the decision of its Labor Arbiters are referred to and decided by its five (5) divisions. -Petitions for certiorari (Rule 65) against decisions of the NLRC should henceforth be initially filed with the Court of Appeals in strict observance of the doctrine on the hierarchy of courts as the appropriate forum for the relief


San Beda College of Law MEMORY AID desired. The Court of Appeals is procedurally equipped to resolve unclear or ambiguous factual finding, aside from the increased number of its component divisions. (St. Martin’s Funeral Homes vs. NLRC; G.R. No. 130866)

4. Claims for actual, moral, exemplary and other forms of DAMAGES arising from employeremployee relations;

- Labor cases are not subject to Barangay Conciliation since ordinary rules of procedure are merely suppletory in character vis-à-vis labor disputes which are primarily governed by labor laws.

5. CASES ARISING FROM ANY VIOLATION OF ART 264 of this Code, including questions involving the legality of strikes and lockouts; 6. Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, ALL OTHER CLAIMS ARISING FROM EMPLOYER-EMPLOYEE RELATIONS, including those of persons in domestic or household service, involving an amount exceeding P5,000.00 regardless of whether accompanies with a claim for reinstatement;

- The failure of the petitioner to file a motion for reconsideration of the decision of NLRC before filing a petition for certiorari has in certain instances been held not to be a fatal omission. - In certain cases however the filing of a Motion for Reconsideration is deemed a condition sine qua non for the filing of a Petition for Certiorari.

CHAPTER II POWERS AND DUTIES

7. MONETARY CLAIMS OF OVERSEAS CONTRACT WORKERS under the Migrant Workers Act of 1995; and

 ART. 217. JURISDICTION OF LABOR ARBITERS AND THE COMMISSION

8. Claims of employees against GOCCs if the latter does not have an original charter and has been incorporated under the Corporation Code.

 EXCLUSIVE AND ORIGINAL JURISDICTION OF LABOR ARBITERS:

1. ULP cases; 2. TERMINATION disputes;

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3. 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;

- Findings of facts of a labor tribunal are accorded the utmost respect by the courts and are well-nigh conclusive if supported by substantial evidence.

Except as otherwise provided under this Code the Labor Arbiters shall have original and exclusive jurisdiction to hear and decide, within 30 calendar days after the submission of the case by the parties for decision without extension, even in the absence of stenographic notes, the following cases involving all workers, whether agricultural or non-agricultural:

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Although the provision speaks of EXCLUSIVE AND ORIGINAL JURISDICTION OF labor arbiters, the cases enumerated may instead be submitted to a voluntary arbitrator by agreement of the parties under Art. 262. The law prefers voluntary over compulsory arbitration.

 Cases which must be disposed of by the labor arbiter by referring the


San Beda College of Law MEMORY AID same to the grievance machinery and voluntary arbitration: a. Disputes on the interpretation or implementation of CBA and b. those arising from the interpretation or enforcement of company personnel policies.  

The labor arbiter and the NLRC have no jurisdiction over claims filed by employees against international In the absence of service of summons or a valid waiver thereof, the hearings and judgment rendered by the labor arbiter are null and void.

 COMPULSORY ARBITRATION: The process of settlement of labor disputes by a government agency which has the authority to investigate and make and award binding to the parties. The NLRC may conduct compulsory arbitration only in national interest cases referred to it by the DOLE secretary.  Labor arbiters’ employment related.  ART. 218. COMMISSION

jurisdiction

is

POWERS OF THE

 POWERS OF THE NLRC: a. R ule-making power [promulgation of rules & regulations governing disposition of cases before any of its divisions/regional offices] b. P ower to issue compulsory processes [administer oaths, summon parties, issue subpoenas] c. Power to investigate matters and hear disputes within its jurisdiction [adjudicatory power —original & appellate jurisdiction over cases] d. Contempt power [218] e. Power to issue injunctions and restraining orders

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agencies such as IRRI, WHO etc. unless they expressly waive their immunity. (Lasco vs. UNRFNRE) 

They also have no jurisdiction over illegal dismissal cases of corporate officers which fall under PD 902-A and now fall under the jurisdiction of the Regular Courts pursuant to the New Securities Regulation Code. [Formerly under the jurisdiction of the Securities and Exchange Commission (SEC) (Dily-Daly Nakpil vs NLRC)]

 PROCEDURE FOR THE ISSUANCE OF RESTRAINING ORDER/ INJUNCTION: a. filing of a verified PETITION b. HEARING AFTER DUE AND PERSONAL NOTICE has been served in such manner as the Commission shall direct, to: a. all known persons against whom the relief is sought and b. also to the Chief Executive or other public officials of the province or city within which the unlawful acts have been threatened or committed charged with the duty to protect the complainant’s property. c. RECEPTION AT THE HEARING OF THE TESTIMONIES OF WITNESSES with opportunity for crossexamination, in support of the allegations of the complaint made under oath as well as testimony in opposition thereto d. FINDING OF FACT of the Commission to the effect that :  prohibited or unlawful acts have been threatened and will be committed, or have been committed and will be continued unless restrained, but no injunction or temporary restraining order shall be issued on account of any threat, prohibited or unlawful act, except against the persons, association or organization making the threat or committing the prohibited or unlawful act or actually


San Beda College of Law MEMORY AID authorizing or ratifying the same after actual knowledge thereof.  That substantial and irreparable injury to the complainant’s property will follow  That as to each item of relief to be granted, greater injury will be inflicted upon complainant by the denial of the relief than will be inflicted upon the defendants by the granting of the relief  That complainants has no adequate remedy at law  That public officers charged with the duty to protect complainant’s property are unable or unwilling to furnish adequate protection. e. Posting of a BOND IRREPARABLE INJURY: An injury which cannot be adequately compensated in damages due to the nature of the injury itself or the nature of the right or property injured or when there exists no pecuniary standard for the measurement of damages. ADEQUATE REMEDY: One that affords relief with reference to the matter in controversy and which is appropriate to the particular circumstances of the case.  The power of the NLRC to enjoin or restrain the commission of any or all prohibited or unlawful acts under Art. 218 of the Labor Code can only be exercised in a labor dispute.  REQUISITES BEFORE TRO MAY BE ISSUED EX PARTE: 1. The complainant shall ALLEGE THAT, unless a TRO is issued without notice, a substantial and irreparable injury to complaint’s property will be unavoidable; 2. TESTIMONY UNDER OATH is sufficient, if sustained, to justify the Commission in issuing a

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temporary injunction upon hearing after notice; 3. The complainant shall first FILE AN UNDERTAKING WITH ADEQUATE SECURITY/BOND in an amount to be fixed by the Commission sufficient to recompense those enjoined for any loss, expenses or damage caused by the improvident or erroneous issuance of such order or injunction, including all reasonable costs, together with a reasonable attorney’s fee, and expense of defense against the granting of any injunctive relief sought in the same proceeding and subsequently denied by the Commission.  The TRO shall be effective for no longer than 20 days and shall become void at the expiration of said 20 days counted from the date of the posting of the bond.  It may be lifted or it may be upgraded to a permanent injunction.  The procedural and substantial requirements of Art 218 (e) must be strictly complied with before an injunction may issue in a labor dispute.  THE FOLLOWING CAN ISSUE INJUNCTIONS/ TRO IN LABOR DISPUTES: 1. President (ART. 263, g) 2. Secretary of Labor (ART. 263, g) 3. NLRC (218) 4. Labor Arbiters (ART. 217/RULE XI Sec. 1 of IR&R) 5. Regional Directors 6. Med- Arbiters  ART. 219. OCULAR INSPECTION  The Chairman, any Commissioner, labor Arbiter or their duly authorized representatives may, at anytime during working hours: a. Conduct an ocular inspection on any establishment, building, ship, place or premises, including any work, material, implement, machinery,


San Beda College of Law MEMORY AID appliance or any object therein; and b. Ask any employee, laborer, or any person as the case may be for any information or date concerning any matter or question relative to the object of the investigation  ART. 221. TECHNICAL RULES NOT BINDING AND PRIOR RESORT TO AMICABLE SETTLEMENT  The NLRC may disregard technical rules of procedure in order to give life to the constitutional mandate affording protection to labor. (Principe vs. Philippine-Singapore Transport Services Inc.)  RES JUDICATA applies only to judicial or quasi-judicial proceedings and NOT to the exercise of administrative powers.  APPROVAL OF AN AMICABLE SETTLEMENT BY A LABOR ARBITER An amicable settlement of a labor dispute should be approved by the labor arbiter before whom the case is pending after being satisfied that: a. it was VOLUNTARILY ENTERED into by the parties and 

after having EXPLAINED TO THEM THE TERMS AND CONSEQUENCES thereof.

PURPOSE: for the employee’s protection—because the labor arbiter before whom the case is pending would be in a better position than just any other person to personally determine the voluntariness of the agreement and certify its validity (Periquet vs. NLRC).  The Rules of Court are applied in a suppletory character.  COMPROMISE, as a way of settling disputes is encouraged  through compromise, the parties, by making reciprocal concessions, avoid litigation

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or put an end to one already commenced.  ART. 222. APPEARANCES AND FEES APPEARANCE OF NON-LAWYERS BEFORE THE COMMISSION: GENERAL RULE: ONLY lawyers can appear before the NLRC or a Labor Arbiter EXCEPTIONS: Non-Lawyers can appear ONLY in the following instances: 1. if they represent themselves; 2. if they represent their organization or members thereof; or 3. if he is a duly accredited member of the legal aid office duly recognized by the DOJ in cases referred thereto by the latter or by the IBP. ATTORNEY’S FEES: 1. Art. 111 Labor Code (simple monetary claim) The maximum amount to be given a lawyer for his legal assistance rendered which is 10% of the total monetary award adjudged the employees excluding the award for moral and exemplary damages. To demand more than this is unlawful. 2. Art. 222 a.

Attorney’s fees for CBA negotiations and conclusion shall be in the amount agreed upon by the parties to be taken from the union funds and not from individual union members. b. This article prohibits the payment of attorney’s fees only where the same is effected through forced contributions from the workers form their own funds as distinguished from union funds.


San Beda College of Law MEMORY AID c.

Neither the lawyer nor the union itself may require the individual workers to assume the obligation to pay the attorney’s fees from their own pockets. Any agreement to the contrary shall be null and void.

 ARTICLE 211 VS ARTICLE 222 ART. 211

PURPOSE: to fix the limit on the amount of attorney’s fees. The victorious party may recover in any administrative or judicial proceeding.

Prohibits the payment of attorney’s fees only when it is effected through forced contribution from the workers from their own funds as distinguished from union funds PURPOSE: to prevent the imposition on the workers of the duty to individually contribute their respective shares in the fee to be paid to the attorney for his services to the union.

CHAPTER III APPEAL  ART. 223. APPEAL  GROUNDS FOR APPEAL: 1.

If there is prima facie evidence of abuse of discretion on the part of the Labor Arbiter 2. If the decision, order or award was secured through fraud or coercion, including graft and corruption; 3. If made purely on questions of law; and 4. If serious errors in the findings of facts are raised which would cause grave or irreparable damage or injury to the appellant.  PERIODS APPEAL:

WITHIN

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A. decisions of the regional director:  within 5 calendar days from receipt of the order [129 LC— Recovery of wages and simple money claims of the amount not exceeding P5,000.00]. B. decisions of the labor arbiter:

ART. 222

Prohibits the award of attorney’s fees which exceed 10% of the amount of wages recovered.

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 within 10 calendar days from the receipt of the decision.  The appeal must be under oath and must state specifically the grounds relied upon and the supporting arguments.  Where the 10th day falls on a Saturday, Sunday or legal holiday, the appeal may be filed on the next business day. (Rules of Procedure of NLRC)  PERIOD TO APPEAL—NOT EXTENDIBLE  It is the policy of the state to settle expeditiously labor disputes.  The perfection of an appeal within the statutory/ reglementary period is not only mandatory but also jurisdictional and failure to do so renders the questioned decision final and executory as to deprive the appellate court of jurisdiction to alter the final judgment of the RDs and LAs. (Aboitiz Shipping Employees Association vs. Trajano)  REQUISITES FOR THE PERFECTION OF AN APPEAL TO THE NLRC: 1. Filing of A VERIFIED MEMORANDUM OF APPEAL within the required period of appeal; 2. In case of monetary award, when the appellee is the employer he should file an APPEAL BOND corresponding to the monetary award excluding awards for moral and exemplary damages and attorney’s fees.  Where the employer failed to post a bond to perfect its appeal, the


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remedy of the employee is a motion to dismiss the appeal, NOT a petition for mandamus.  The intention of the lawmakers is to make the bond an indispensable requisite for the perfection of an appeal by the employer. 3. Appeal fee of P150; 4. Proof of service - furnish the other party with a copy of the memo of appeal.  Failure to give a copy of the appeal to the appellee within 10 days is not fatal IF the latter was not prejudiced by the delay in the service of said copy of the appeal—technical rules must yield to the broader interest of substantial justice. (Modern Fishing Gear Labor Union vs. Noriel)  A mere notice of appeal does not stop the running of the reglementary period of appeal.

 EXECUTION PENDING APPEAL - the decision of the labor arbiter ordering the reinstatement of a dismissed or separated employee shall be immediately executory insofar as the reinstatement aspect is concerned and the posting of an appeal bond by the employer shall not stay such execution.  There is no need for a motion for the issuance of writ of execution on the reinstatement order as it is self-executory. (Pioneer Texturizing Co. vs. NLRC)  Perfection of appeal within the reglementary period is both MANDATORY and JURISDICTIONAL. (ACDA vs NLRC; Volkschel vs NLRC)  Non-service of the copy of the appeal/appeal memorandum to the

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adverse party is not a jurisdictional effect and does not justify dismissal of the appeal.  AMOUNT OF APPEAL BOND: amount equal to the monetary award exclusive of damages (moral and exemplary) plus attorney’s fees.  OPTIONS OF THE EMPLOYER IN COMPLYING WITH AN ORDER OF REINSTATEMENT WHICH IS IMMEDIATELY EXECUTORY: 1. He can ADMIT THE DISMISSED employee back to work under the same terms and conditions prevailing prior to his dismissal or separation or to a substantially equivalent position if the former position is already filled up, OR 2. He can REINSTATE THE EMPLOYEE MERELY IN THE PAYROLL WITH PAYMENT OF THE ACCRUED SALARIES.  Failure to exercise one of the foregoing options may be compelled under pain of contempt and the employer may be made to pay instead the salary of the employee.  A petition for relief from the decision of the labor arbiter must strictly comply with 2 reglementary periods: 1.

The petition must be filed within 60 days from knowledge of the judgment; and 2. The petition must be filed within a fixed period of 6 months from entry of such judgment.  Petitions filed beyond said period will no longer be entertained.  APPEAL FROM THE DECISION OF THE NLRC: No law allows an appeal from a decision of the Secretary of Labor, or the NLRC, or of a voluntary arbitrator. In these cases, the special civil action of certiorari, prohibition or mandamus



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under Rule 65 of the Rules of Court may be lodged with the Court of Appeals. (St. Martin’s Funeral Home vs. CA)  No Motion for Reconsideration is allowed for any order, decision or award of a Labor Arbiter. However a Motion for Reconsideration of a Labor Arbiter’s decision, award or order which has all the elements of an appeal may be treated as appeal.  Only one Motion for Reconsideration of the decision, award or order of the commission on appealed cases before it.  ART 224. EXECUTION DECISIONS, ORDER, OR AWARDS

OF

The decision of the Secretary of Labor, the Commission, the Bureau or Regional Director the Labor Arbiter, the Med-Arbiter or the Voluntary Arbitrator shall be final and executory after 10 calendar days from receipt thereof by the parties and shall be executory within ten (10) years.  The foregoing may, upon its own initiative or on motion of any interested party, issue a writ of execution on a judgment within 5 years from the date it becomes final and executory.  An independent action is required for the execution of the final judgement within the next of following 5 years [ Phil. National Railways vs NLRC (177 SCRA740, Sept. 19, 1989)]  The immediate execution of judgment should be undertaken only when the monetary award had been carefully and accurately determined by the NLRC and only after the employer is given the opportunity to be heard and to raise objections to the computation.

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BUREAU OF LABOR RELATIONS  ART. 226. RELATIONS

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Pursuant to E.O. 126, the NATIONAL CONCILIATION AND MEDIATION BOARD (NCMB) has absorbed the conciliation, mediation and voluntary arbitration functions of the BLR. 

Jurisdiction over labormanagement problems or disputes is also exercised by other offices such as the DOLE regional offices, and the Office of the Secretary, NLRC, POEA, OWWA, SSS-ECC, the regional wage and productivity boards, NWPC, and even the regular courts over intra-corporate disputes.  EXCLUSIVE AND ORIGINAL JURISDICTION OF THE BLR -to act at its own initiative or upon the request of either or both parties on all: 1.

INTRA- union conflicts

2.

INTER- union conflicts

3. all DISPUTES, GRIEVANCES OR PROBLEMS ARISING FROM OR AFFECTING LABOR MANAGEMENT RELATIONS IN ALL WORKPLACES WHETHER AGRICULTURAL OR NONAGRICULATURAL.  The parties may however, by agreement, settle their differences by submitting their case to a voluntary arbitrator rather than taking the case to the BLR.  CASES WHERE THE BLR HAS NO JURISDICTION: Those arising from the implementation or interpretation of collective bargaining agreements which shall be subject of grievance procedure and/or voluntary arbitration.

TITLE III

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 INTRA-UNION DISPUTES – refers to any conflict between and among union members, including grievances arising from any violation of the rights and conditions of membership, violation of or disagreement over any provision of the union’s constitution and by-laws, or disputes arising from chartering or affiliation.  MED-ARBITER- an officer in the regional office or bureau authorized to hear, conciliate, and decide representation cases or assist in the disposition of intra or inter-union disputes. COVERAGE OF INTER/INTRA-UNION DISPUTES (Sec. 1 Rule XI DO 40-03) a. cancellation of registration of a labor organization filed by its members or by any other labor organization; b. conduct of election of union and worker’s association officers/nullification of election of union and worker’s association officers; c. audit/accounts examination of union or worker’s association funds; d. deregistration of CBA; e. validity/invalidity of union affiliation or disaffiliation; f. validity/invalidity of acceptance/non-acceptance for union membership; g. validity/invalidity of impeachment/ expulsion of union and worker’s association officers; h. validity/invalidity of voluntary recognition; i. opposition to application for union and CBA registration; j. violations of or disagreements over any provision in a union or worker’s association constitution and by-laws; k. disagreements over chartering or registration of labor organizations and CBAs; l. violations of the rights and conditions of union or worker’s association membership;

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m. violations of the rights of legitimate labor organizations, except interpretation of CBAs; n. such other disputes or conflicts involving the rights to selforganization, union membership, and collective bargaining – 1. between and among legitimate labor organizations 2. between and among members of a union or worker’s association EXTENDED COVERAGE (Section 2 Rule XI DO 40-03) Other related labor relations disputes shall include any conflict between a labor organization and the employer or any individual, entity, or group that is not a labor organization or worker’s association. This includes: 1. cancellation of registration of unions and workers associations; and 2. a petition for interpleader  SPECIAL REQUIREMENTS AS TO THE FILING OF CASES: A. INVOLVING ENTIRE MEMBERSHIP 1.The complaint must be signed by at least 30% of the entire membership of the union and 2.It must also show exhaustion of administrative remedies. B. INVOLVING A MEMBER ONLY - In such case only the affected member may file the complaint. 

Redress must first be sought within the union itself in accordance with its constitution and by-laws EXCEPT under any of the following circumstances: a. futility of intra-union remedies b. improper expulsion procedure c. undue delay in appeal as to constitute substantial injustice d. the action is for damages e. lack of jurisdiction of the investigating body



13 MEMORY AID

f. action of the administrative agency is patently illegal, arbitrary, and oppressive g. issue is purely a question of law h. where the administrative agency had already prejudged the case i. where the administrative agency was practically given the opportunity to act on the case but it did not.



Imposition of fees by the union affects the entire membership, therefore it requires that the complaint should be signed by at least 30% of the membership of the union.

 INTER-UNION DISPUTES -refers to any conflict between and among legitimate labor organizations involving representation questions for purposes of collective bargaining or to any other conflict or dispute between legitimate labor organizations based on any violations of their rights as labor organizations.

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LABOR LAW

memorandum of appeal 3. Based on either of the following grounds: a. Grave abuse of discretion b. Gross violation of the Rules 4. With supporting arguments and evidence Within 10 days from PERIOD receipt of decision 1. Bureau of Labor TO WHOM Relations—if the case APPEALABLE originated from the Med Arbiter/Regional Director 2. Sec. Of Labor—if the case originated from the Bureau Regional Office or to the WHERE FILED BLR, where the complaint originated (records are transmitted to the BLR or Sec. 1. For grounds Sec. 1: Withinunder 24 hours from WHO a. receipt any LLOof the b. memorandum member(s) thereof of appeal)

specially concerned 2. For grounds under Sec. 2—any party-in-interest 1. Regional Office that issued its WHERE certificate of registration or FILED EFFECTS OF FILING/PENDENCY OF certificate of creation of INTER/INTRA-UNION DISPUTE AND chartered local- If it involves labor unions with independent OTHER LABOR RELATIONS DISPUTES registrations, chartered locals, (Section 3 Rule XI DO 40-03) worker’s association, its officers or - The rights, relationships and obligations of members the parties litigants against each other and 2. Directly with the Bureau—If it other parties-in-interest prior to the involves a Federation/National institution of the petition shall continue to Unions/Industry Unions, its officers or members remain during the pendency of the petition 1. in writing and until the date of finality of the decision FORMAL 2. verified under oath rendered therein. Thereafter, the rights, REQUIRE3. contains the following relationships and obligations of the parties MENTS averments litigants against each other and other partiesa. name, address and other in-interest shall be governed by the decision personal circumstances of the so ordered. complainant(s) or petitioner(s); - The filing or pendency of any inter/intrab. name, address and other union disputes is not a prejudicial question to personal circumstances of the respondent(s) or person(s) any petition for certification election and charged; shall not be a ground for the dismissal of a c. nature of the complaint or petition for certification election or petition; suspension of proceedings for certification d. facts and circumstances election. surrounding the complaint or petition;  SUMMARY OF RULES ON INTRA/INTERe. cause(s) of action or specific violation(s) committed; UNION DISPUTES (Rule XI DO 40-03) f. a statement that the administrative remedies provided  MODES OF APPEAL IN INTRA/INTERfor in the constitution and by-laws UNION DISPUTES (Rule XI DO 40-03) -have been exhausted or -such remedies are not 1. Under oath HOW (formal readily available to the 2. Consist of a requirements) complainant(s) or petitioner(s) through no fault of his/their own or -compliance with such administrative remedies does LABOR LAW COMMITTEE not apply complainant(s)  CHAIRPERSON: Francis Benedict Réotutar  ASSISTANT CHAIRPERSON: Juanito Lim, Jr.  SUBJECT HEADSto : Aimee Roselle or Sabilala(Labor Standards), Elsa Villaflor(Labor Relations), Maria Fe Taal (Special Laws)  EDP: Flora Sherry Basquiñez petitioner(s);  ASST. EDP’S: Jennifer Trinidad, Ma. Jasmine Isip, Emil Bien Ongkiko, Kareen Faye g. Pioquinto relief(s) prayed for; h. certificate of non-forum shopping; and i. other relevant matters


14 MEMORY AID

LABOR LAW

EMPLOYER-

 Cannot be entered into when the final judgment is already in the process of execution. (Jesalva vs. Bautista)

Since the BLR has the original and exclusive jurisdiction to decide, inter alia, all disputes, grievances or problems arising from or affecting labor-management relations in all workplaces, necessarily, in the exercise of this jurisdiction over labor-management relations, the Med-Arbiter has the authority, original and exclusive, to determine the existence of an employer-employee relationship. (MY San Biscuits, Inc. vs. Laguesma G.R. No. 9511, 22 April 1991)

FORMAL REQUIREMENTS OF A VALID COMPROMISE AGREEMENT: 1. in writing 2. signed in the presence of the regional director or his duly authorized representative.

 DETERMINATION OF EMPLOYEE RELATIONSHIP: -

IN



In cases where there is overlapping of jurisdiction, determine the principal issue. The agency that has jurisdiction thereon may decide on the incidental issues.

 ADMINISTRATIVE FUNCTIONS OF THE BLR: 1. The REGULATION OF REGISTRATION of the labor unions; 2. The KEEPING OF A REGISTRY of labor unions; 3. The maintenance of a FILE OF CBAS. ART. 227. COMPROMISE AGREEMENTS; and 4. The maintenance of a file of all settlements or final decisions of the Supreme Court, Court of Appeals, NLRC and other agencies on labor disputes.  REQUIREMENTS: a. must be freely entered into; b. must not be contrary to law, morals or public policy; and c. must be approved by the authority before whom the case is pending [see discussion on article 221—approval of labor arbiter of an amicable settlement in a case before him.  May be effected at any stage of the proceedings and even when there is already a final executory judgment (2040 NCC).

LABOR LAW COMMITTEE

WITH vs. WITHOUT ASSISTANCE OF DOLE-COMPROMISE AGREEMENTS Without assistance With the of DOLE assistance of DOLE a. VALIDITY/BINDING EFFECT - Valid and binding - Valid and binding upon the parties upon the parties b. REPUDIATION Can be - Can no longer be repudiated by the repudiated— parties by going to becomes final and the Commission binding upon the parties upon NOTE: ULP cases execution EXCEPT are not subject to a. in case of non compromise. compliance with the compromise agreement; or if there is prima facie evidence that the settlement was obtained through fraud, misrepresentation, or coercion OPTIONS WHEN COMPROMISE AGREEMENT IS VIOLATED: 1. enforce compromise by writ of execution 2. regard it as rescinded and insist upon original demand.



15 MEMORY AID

 REQUIREMENTS QUITCLAIM:

OF

A

VALID

1. The quitclaim must be VOLUNTARILY ARRIVED at by the parties; 2. It must be WITH THE ASSISTANCE of the Bureau of Labor Standards, Bureau of Labor Relations or any representative of the DOLE; and 3. The CONSIDERATION MUST BE REASONABLE (required only when entered without the assistance of DOLE) 

Dire necessity is not an acceptable ground for annulling the releases, especially in the absence of proof that the employees were forced to execute them. (Veloso vs. DOLE)

 WAIVER OF REINSTATEMENT – like waivers of money claims, a waiver of reinstatement must be regarded as a personal right which must be exercised personally by the workers themselves. (Jag & Haggar Jeans and Sportswear Corp. vs. NLRC) 

ART 231. REGISTRY OF UNIONS AND FILE OF COLLECTIVE AGREEMENT 





The CBA is more than a contract, it is highly impressed with public interest for it is an essential instrument to promote industrial peace. Must be filed directly with the Bureau or the Regional Offices of DOLE within thirty (30) days from execution. An UNREGISTERED CBA does not bar certification election [contract bar rule will not apply in the absence of registration. [See discussion on Arts. 253 & 253-A]

 Registration of the CBA is not a requisite for its validity.

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LABOR LAW

 The certification of the CBA by the BLR is not required to put a stamp of validity to such contract. Once it is duly entered into and signed by the parties, a CBA becomes effective as between the parties regardless of whether or not the same has been certified by the BLR.  ART 232. PROHIBITION CERTIFICATION ELECTION

ON

CONTRACT BAR RULE: provides that while a valid and registered CBA is subsisting for a fixed period of 5 years , the Bureau is not allowed to hold an election contesting the majority status of the incumbent union except during the sixty (60) day period immediately prior to its expiration, which period is called the freedom period.  The existence of the CBA bars the holding of an inter-union electoral contest and the filing of the Petition for Certification Election except within the freedom period. PURPOSE: “politicking” comes.

to until

minimize union the proper time

 ART 233. COMMUNICATION

PRIVILEGED

PRIVILEGED COMMUNICATION: Any statement of such privacy that the law exempts the person receiving the information from the duty to disclose it.  Information and statements made at conciliation proceedings shall be treated as privileged communication and shall not be used as evidence in the Commission. 

Conciliators and similar officials may not testify in any court or body regarding any matters taken up at conciliation proceedings conducted by them.

LIBERTY FLOUR MILLS EMPLOYEES v. LFM, INC. 180 SCRA 668

LABOR LAW COMMITTEE



16 MEMORY AID

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LABOR LAW

PURPOSE OF FORMATION OF LABOR UNIONS: for securing a fair and just wages and good working conditions for the laborers; and for the protection of labor against the unjust exactions of capital

TITLE IV LABOR ORGANIZATIONS CHAPTER I REGISTRATION AND CANCELLATION  ART. 234. REQUIREMENTS OF REGISTRATION LABOR ORGANIZATION - Any union or association of employees which exists in whole or in part for the purpose of: a. collective bargaining or b. of dealing with employer concerning terms and conditions of employment.  It is the agent of the employees of an appropriate bargaining unit.

MODES OF ACQUIRING LEGITIMACY FOR LABOR ORGANIZATIONS 1. Registration with the BLR (Independent Union) 2. Affiliation with a legitimate labor federation [REGISTRATION REQUIREMENTS FOR LABOR ORGANIZATIONS (as amended by DO 40-03)] 3. Application for registration 4. Attachments  name of the applicant labor union, its principal address;  the name of its officers and their respective addresses; o

approximate number of employees in the bargaining unit where it seeks to operate, with a statement that it is not reported as a chartered local of any federation or national union;

o

the minutes of the organizational meeting(s) and the list of employees who participated in the said meeting(s);

o

the name of all its members comprising at least 20% of the employees in the bargaining unit;

o

the annual financial reports if the applicant has been in existence for one or more years, unless it has not collected any amount from the members, in which case a statement to this effect shall be included in the application;

PRINCIPLE OF AGENCY APPLIED  Principal – employees  Agent – local/chapter  Agent of agent – federation LEGITIMATE LABOR ORGANIZATION or LABOR UNION – any labor organization duly registered with the Department of Labor and Employment, and Bureau of Labor Relations. 

Not every legitimate labor organization can act as bargaining representative and be certified as such. This is true only of a union that has won in certification election or has been voluntarily recognized by the employer.

LABOR LAW COMMITTEE



17 MEMORY AID

the applicant’s constitution and by-laws, minutes of its adoption or ratification, and the list of the members who participated in it. The list of ratifying members shall be dispensed with where the constitution and by-laws was ratified or adopted during the organizational meeting. In such a case, the factual circumstances of the ratification shall be recorded in the minutes of the organizational meeting(s). (These are called reportorial requirements) o

 The application for registration of labor unions xxx, shall be certified under oath by its Secretary or Treasurer, as the case may be, and attested by its president.  The attachments must now be in one(1) original copy and two (2) duplicate copies which shall accompany the application or notice, and submitted to the Regional Office or the Bureau.

file

application

- After a labor organization had filed the necessary papers and documents for registration, it becomes mandatory for the BLR to check if the requirements under Article 234 have been sedulously complied with. If its application for registration is vitiated by falsification and serious irregularities, especially those appearing on the face of the application and the supporting documents, a labor organization should be denied recognition as a legitimate labor organization. (Progressive Development Corporation-Pizza Hut vs. Laguesma et al., GR No. 115077, April 18, 1997)  PURPOSE OF REGISTRATION Registration with the BLR is the operative act that gives rights to a labor organization. 

for

1. For registration of independent labor unions, chartered locals, worker’s associations shall be filed with the Regional office where the applicant principally operates. It shall be processed by the Labor Relations Division at the Regional office. 2. Applications for registration of federations, national unions or workers’ associations operating in more than one region shall be filed with the bureau or the regional offices, but shall be processed by the bureau.

LABOR LAW COMMITTEE

LABOR LAW

 MINISTERIAL DUTY OF THE BLR COMPELLABLE BY MANDAMUS- to review the application for registration and not the issuance of a Certificate of Registration.

 A prescribed registration fee must be paid before the issuance of the certificate of registration Where to registration:

IN





It is the fact of being registered with the DOLE that makes a labor organization legitimate in the sense that it is clothed with legal personality to claim representational and bargaining rights enumerated in Article 242 or to strike or picket under Article 263. The requirement of registration is NOT a curtailment of the right to association. It is merely a condition sine qua non for the acquisition of legal personality by labor organizations, associations or unions and the possession of the rights and privileges granted by law to labor organizations. A valid exercise of police power since the activities in which labor organizations, associations, or unions of workers are engaged affect public interest, which should be protected. (PAFLU vs. Sec. Of Labor)



18 MEMORY AID

FEDERATION- any labor organization with at least 10 locals/chapters or affiliates each of which must be duly certified or recognized as the sole and exclusive collective bargaining agent of the employer they represent.  REQUIREMENTS BEFORE FEDERATION CAN BE ISSUED CERTIFICATE OF REGISTRATION:

A A

Aside from the application, which must be accompanied with the requirements for registration of a labor registration, the application should also be accompanied by the following: 1. Proof of affiliation of at least 10 locals or chapters, each of which must be a duly recognized sole and exclusive collective bargaining agent in the establishment or industry in which it operates, supporting the registration of such applicant federation or national union; 2. The names and addresses of the companies where the locals or chapters operate and the list of all the members in each company involved.

is the agent.

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LABOR LAW

incumbent

bargaining

 A union of supervisory employees may affiliate with a national federation of labor organizations of rank and file employees PROVIDED that: a. the federation is not actively involved in union affairs in the company; and b. the rank and file employees are not directly under the control of the supervisors  ONCE AFFILIATED, A LOCAL UNION MAY DISAFFILIATE FROM THE FEDERATION.

 A LOCAL UNION MAY AFFILIATE WITH A FEDERATION - The procedure of affiliation would depend on whether the union is independently registered or not. REQUIREMENTS OF AFFILIATION (as amended by DO 40-03) 1. Report of affiliation of independently registered labor union 2. Attachments: a. resolution of the labor union’s board of directors approving the affiliation; b. minutes of the general membership meeting approving the affiliation; c. the total number of members comprising the labor union and the names of members who approved the affiliation; d. the certificate of affiliation issued by the federation in favor of the independently registered labor union; and e. written notice to the employer concerned if the affiliating union

LABOR LAW COMMITTEE



19 MEMORY AID

INDEPENDENT REGISTRATION

INDEPENDENTLY CHARTERING

IN

LABOR LAW

UNREGISTERED

REGISTERED

 Obtained TO -byA signingduly a contract a.HOW by union registered affiliation AFFILIATE organizers federation/na in an tional union enterprise issues a through charter to a their own union in an action enterprise and registers the charter with the regional office or the BIR.

of

-by application of the union with the federation for the issuance of a charter certificate to be submitted to the Bureau accompanied by the following: a. Copies of its constitution and by-laws b. Statement of the set of officers and Books of accounts, all of which must be certified by the Secretary/Treasurer and attested to by the President. In such case, the union becomes a local chapter of the Federation.

b.EFFECT OF With legal DISAFFILIATION personalit TO THE y UNION of its [local] own

affect its being a - would No notlegal legitimate labor personality of organization and therefore it would its own as continue to have legal long as itand has to possess all personality thenot rightsavailed and privileges of a itself labor of organization. legitimate independent registration.

Applicatio n for registratio n is filed with and will be acted upon by the DOLE c. EFFECT OF regional DISAFFILIATION office TO THE CBAthe where applicant’ s principal office is located.



upon severance, it would cease to be a legitimate labor organization and would no longer have legal personality and the rights and privileges granted by law to legitimate organization, unless the local chapter is covered by a duly registered collective bargaining agreement. In the latter case, the local or chapter will not lose its legal personality until the expiration of the CBA. After the CBA expires it will lose its legal personality unless it registers as an independent union.





Independent union



Chapter/local

Charter certificate is issued by a federation or national union is filed with the regional office or BLR - with an existing 30 days CBA would continue to be valid as the after the labor organization can issuance of continue administering the charter CBAthe certificate.

LABOR LAW COMMITTEE

The CBA would continue to be valid. The local chapter will not lose its personality until the expiration of the CBA. After the CBA expires the local union looses its personality, unless it registers anew.



20 MEMORY AID

d. ENTITLEMENT TO UNION DUES AFTER DISAFFILIATION

-labor organization is entitled to the union dues and not the federation from which the labor organization disaffiliated.

LABOR LAW COMMITTEE

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LABOR LAW

- union dues may no longer be collected as there would no longer any labor union that is allowed to collect such union dues from the employees. Note: Follow the principle of agency between federation and local.  Principal – employees  Agent – local/chapter Agent of agent – federation


WHEN TO DISAFFILIATE GENERAL RULE: A labor union may disaffiliate from the mother union to form an independent union only during the 60-day freedom period immediately preceding the expiration of the CBA. EXCEPTION: DISAFFILIATION BY MAJORITY 

This happens when there is a substantial shift in allegiance on the part of the majority of the members of the union. In such a case, however, the CBA continues to bind the members of the new or disaffiliated and independent union up to the CBA’s expiration date.

LIMITATION: disaffiliation should be in accordance with the rules and procedures stated in the Constitution and by-laws of the federation. 

A prohibition to disaffiliate in the Federation’s constitution or by-laws is valid— intended for its own protection.

 REVOCATION OF CHARTER BY THE FEDERATION - by serving the local/chapter a verified notice of revocation, copy furnished the Bureau on the ground of disloyalty or such other grounds as may be specified in its constitution or by-laws.



The revocation shall divest the local chapter of its legal personality upon receipt of the notice by the Bureau, unless in the meantime the local chapter has acquired independent registration. (Rule VIII Section 5 of the IRR)

WORKER’S ASSOCIATION: Association of workers for the mutual aid and protection of its members or for any legitimate purpose other than collective bargaining.  ART. 236. DENIAL OF REGISTRATION; APPEAL - Decisions of the BLR denying the registration of a labor organization is appealable to the Secretary of Labor within 10 calendar days from receipt of the decision, on grounds of:

-

a. grave abuse of discretion; or b. gross incompetence even before the onset of the freedom period, disaffiliation may still be carried out, but such disaffiliation must be effected by a majority of the union members in the bargaining unit.

decision of the regional office or the bureau denying the application for registration shall be: 1. in writing 2. stating in clear terms the reason for the decision 3. applicant union must be furnished a copy of said decision  ART. 238. CANCELLATION OF REGISTRATION; APPEAL The certificate of registration of any legitimate labor organization shall be cancelled by the BLR if it has reason to believe, after due hearing, that the said labor organization no longer meets one or more of the requirements prescribed by law.  GROUNDS FOR CANCELLATION:

1. Failure to comply with any of the requirements prescribed under Arts. 234 (requirements for registration of a labor union) & 237 (add’l. reqts. federation registration) of the Code. 2. Violation of any of the provisions of Art. 239 (grounds for cancellation of union registration) of the Code 3. Commission of any of the acts enumerated under Art. 241 (rights and conditions of membership) of the code- No petition for cancellation based on this ground 0may be granted unless supported by at least 30% of all the members of the respondent labor organization or worker’s association. 

A pronouncement as to the illegality of the strike is not within the meaning of Art. 239 of the Code which provides for the grounds for cancellation of union registration.

MODES OF APPEAL DENIAL or CANCELLATION BY: A. Regional Office  transmit records within 24 hours from receipt of Memo of Appeal  BUREAU decides within 20 days from receipt of records  SUPREME COURT- Rule 65 B. Bureau  transmit records within 24 hours from receipt of memo of appeal  SEC. OF DOLE decides within 20 days from receipt of records  SUPREME COURT- Rule 65 *Appeal by memo of appeal within 10 days from receipt of notice. GROUNDS: 1. Grave abuse of discretion 2. Violation of rules as amended.

 EFFECT OF CANCELLATION OF REGISTRATION IN THE COURSE OF PROCEEDINGS - Where a labor union is a party in a proceeding and later it loses its registration permit in the course or during the pendency of the case, such union may continue as a party without need of substitution of parties, subject however to the understanding that whatever decision may be rendered therein will be binding only upon those members of the union who have not signified their desire to withdraw from the case before its trial and decision on the merits. [Principle of Agency applied—the employees are the principals, and the labor organization is merely an agent of the former, consequently, the cancellation of the union’s registration, would not deprive the consenting member-employees of their right to continue the case as they are the considered as the principals]  ART 239. GROUNDS FOR CANCELLATION OF UNION REGISTRATION  GROUNDS FOR CANCELLATION OF UNION REGISTRATION: A. FRAUDULENT ACTS 1. Misrepresentation, False statement or Fraud in connection with [RATIFICATION OF CONSTI/BY-LAWS]: a. the ADOPTION OR RATIFICATION of the constitution and by-laws or amendments thereto, b. the MINUTES of ratification, and c. the LIST OF MEMBERS who took part in the ratification. 2. Misrepresentation, false statement or fraud in connection with the [ELECTION PAPERS]: a. ELECTION of officers, b. MINUTES of the election of officer and the list of voters, or c. failure to submit these documents together with the list of the elected/appointed officers and their postal addresses within 30 days from election

newly

B. INACTION OR OMISSION 1. Failure to submit the following documents [RATIFICATION OF CONSTI/BY-LAWS]: a. the adoption or ratification of the constitution and by-laws or amendments thereto, b. the minutes of ratification, and the list of members who took part in the ratification *Within 30 days from adoption or ratification of the constitution and by-laws or amendments thereto. 2. Failure to submit the Annual Financial report to the Bureau within 30 days after the closing of every fiscal year and misrepresentation, false entries and fraud in the preparation of the financial report itself; 3. Failure to submit a LIST OF INDIVIDUAL MEMBERS of the Bureau once a year or whenever required by the Bureau; and 4. Failure to comply with the REQUIREMENTS UNDER ARTICLES 237. C. UNLAWFUL ACTS 1. Acting as a labor contractor or engaging in the “CABO” SYSTEM, or otherwise engaging in any activity prohibited by law;

2. Entering into collective bargaining agreements which provide terms and conditions of employment below minimum standard established by law [CBA-BELOW MINIMUM STANDARDS]; (Sweetheart Agreements) 3. Asking for or ACCEPTING ATTORNEY’S FEES OR NEGOTIATION FEES from the employers; 4. Other than for mandatory activities under this Code, checking off special assessment or any other fees without duly signed individual written authorization of the members [UNLAWFUL ASSESSMENTS]; CANCELLATION OF REGISTRATION A. FOR: 1. Legitimate individual labor union. B. 2. FOR: Chartered local 1. 3. Federations Worker’s association 2. National or Industry unions 3. Trade union centers  WHERE TO FILE Regional Director who has  WHERE TO FILE jurisdiction over the place - where Bureaurespondent Director ( 30principally days to decide) operates (30 days to decide).  WHOWHO MAYMAY FILEFILE Only the members - Any party in interest,ofifthe ground Labor Organization concerned is: if grounds are actions a. Failure to comply with any of involving violations of Art. the requirements under Arts. 241, subject to the 234, 237 and 238 LC 39% rule b. Violation of any provision under Art. 239, LC Take note of the cancellation proceedings if violation is D and J of Art. 239, LC REPORTING REQUIREMENTS OF LABOR UNIONS AND WORKERS ASSOCIATIONS (Rule V DO 4003) - It shall be the duty of every legitimate labor union and workers’ association to submit to the Regional Office or Bureau which issued its certificate of registration or certificate of creation of chartered local, as the case may be, two (2) copies of each of the following documents: a. any amendment to its constitution and by-laws and the minutes of adoption or ratification of such amendments, within 30 days from its adoption or ratification; b. annual financial reports within 30 days after the close of each fiscal or calendar year; c. updated list of newly-elected officers, together with the appointive offices or agents who are entrusted with the handling of funds, within 30 days after each regular or special election of officers, or from the occurrence of any change in the officers of agents of the labor organization or workers association’ d. updated list of individual members of chartered locals, independent unions and workers’ associations within 30 days after the close of each fiscal year; and e. updated list of its chartered locals and affiliates or member organizations, CBAs executed and their effectivity period, in the case of federations or national unions, within 30 days after the close of each fiscal year, as well as the updated list of their authorized representatives, agents or signatories in the different regions of the country.  RULES ON ADMINISTRATIVE CANCELLATION OF CERTIFICATE OF REGISTRATION OF LLOs DUE TO NON-COMPLIANCE WITH THE REPORTORIAL REQUIREMENTS:

WHEN PROPER

Failure to comply with its legal duty to submit the documents required to be submitted under Rule V of DO 40-03 for 5 consecutive years

WHO MAY FILE THE PETITION

1. Motu propio by the Bureau 2. Any party-in-interest

THREENOTICE REQUIRE MENT

1st Notice Bureau shall send by registered mail with return card notice for compliance indicating the documents it failed to submit and the corresponding period in which they were required, with notice to comply with the said reportorial requirements and to submit proof thereof to the Bureau within 10 days from receipt thereof 2nd Notice Where no response is received by the Bureau within 30 days from the release of the 1st notice, another notice for compliance shall be made by the Bureau, with warning that failure on its part to comply with the reportorial requirements within the time specified shall cause the continuation of the proceedings for the administrative cancellation of its registration 3rd Notice Where no response is again received by the Bureau within 30 days from release of the 2nd notice, the Bureau shall cause the publication of the notice of cancellation of registration of the labor organization in 2 newspapers of general circulation. When no response is received by the Bureau within 30 days from the date of publication or when the Bureau has verified the dissolution of the labor organization, it shall order

the cancellation of registration of the labor organization AND cause its de-listing from the roster of legitimate labor organizations

CHAPTER II RIGHTS AND CONDITIONS OF MEMBERSHIP IN A LABOR ORGANIZATION  ART. 241. RIGHTS AND CONDITIONS OF MEMBERSHIP IN A LABOR ORGANIZATION  GENERAL GROUPINGS OF THE RIGHTS OF THE UNION MEMBERS: 1. Political right - the right to vote and be voted for, subject to lawful provisions on qualifications and disqualifications. 2. Deliberative and Decision-Making Right - the right to participate in deliberations on major policy questions and decide them by secret ballot. 3. Rights Over Money Matters - the right of the members: a. b. c. d. e. f. g.

against imposition of excessive fees; right against unauthorized collection of contributions or unauthorized disbursements; to require adequate records of income and expenses; to access financial records; to vote on officers compensation; to vote on special assessment; to be deducted a special assessment only with the member’s written authorization.

4. Right to Information - the right to be informed about: a. the organization’s constitution and by- laws, b. the collective bargaining agreement, and labor laws. 

Any violation of the above rights and conditions of membership shall be a ground for cancellation of union registration or expulsion of an officer from office, whichever is appropriate. At least 30% of all the members of the union or any member or members specifically concerned may report such violation to the Bureau.

 PERSONS WHO ARE PROHIBITED FROM BECOMING MEMBERS/OFFICERS OF A LABOR ORGANIZATION UNDER THE LABOR CODE (see also notes under Art. 243 on persons who are not granted the right to self-organization): 1. Subversives or those engaged in subversive activities [Art.241 (e)] 2. Persons who have been convicted of a crime involving moral turpitude shall not be eligible for election as union officer or for appointment to any position in the union. [Art. 241 (f)] 

In general, a union is free to select its own members, and no person has an absolute right to membership in a union.

LIMITATIONS [see discussion on union security arrangements under Art. 248]:

a. The labor org. cannot compel employees to become members of their labor organization if they are already member of rival union. b. persons mentioned in Art. 241(e) [subversives] of the labor code are prohibited from becoming a member a labor organization. c.

members of religious organization whose religion forbade membership in labor organization could not be compelled into union membership.

 REQUIREMENTS IN MAKING SPECIAL ASSESSMENTS or OTHER EXTRAORDINARY FEES (Art. 241 [n]): 1. 2.

there must be a WRITTEN RESOLUTION he resolution must have BEEN APPROVED BY A MAJORITY of all the members

3. the approval must be AT A GENERAL MEMBERSHIP MEETING DULY called for that purpose  a. b. c.

The secretary of the organization shall record the minutes of the meeting including: the list of all members present, the votes cast, and the purpose of the assessment or

fees



The record shall be attested by the President.



Substantial compliance to the aforementioned procedure is not enough—the requirements must be strictly complied with in view of the fact that the special assessment will diminish the compensation of union members. (Palacol et. al vs. Ferrer-Calleja et. al)

 CHECK-OFF - a method of deducting from an employee’s pay at prescribed period, the amounts due to the union for fees, fines or assessments. NATURE AND PURPOSE OF CHECK-OFF:  to facilitate the collection of dues necessary for the union’s life and sustenance. 

Union dues are the lifeblood of the union.

REQUIREMENTS WITH REGARD TO CHECK-OFFS (Art. 241 [o]): - NO special assessment, attorney’s fees, registration fees or any other extraordinary fees may be checked off from any amount due an employee WITHOUT an individual written authorization duly signed by the employee. The authorization should specifically state the: a. amount b. purpose and the beneficiary of the deduction.  Jurisdiction over check-off disputes is with the Regional Director of the DOLE, not the Labor Arbiter

 UNION DUES VS. AGENCY FEE UNION DUES AGENCY FEE a. DEDUCTED FROM - members of a union for the payment of union dues. b. CONSENT May not be deducted from the salaries of the union members without the written consent of the workers affected

- non-members of the bargaining agent (union) for the enjoyment of the benefits under the CBA. - May be deducted from the salary of employees without their consent.

 Agency fee cannot be imposed on employees already in the service and are members of another union. If a closed shop agreement cannot be applied to them, neither may an agency fee, as a lesser form of union security, be imposed to them. (NABAILU vs. San Miguel Brewery Inc)  EXCEPTION TO THE REQUIREMENT OF INDIVIDUAL WRITTEN AUTHORIZATION: 1.For mandatory activities provided under the Code; and 2.When non-members of the union avail of the benefits of the CBA. - said non-members may be assessed union dues equivalent to that paid by members - only by a Board Resolution approved by majority of the members in a general meeting called for the purpose Will the employees-members of another union not be considered as free riders? No since when the union bids to be the bargaining agent, it voluntarily assumes the responsibility of representing all employees in the appropriate bargaining unit.  SPECIAL ASSESSMENT vs. CHECK-OFF SPECIAL ASSESSMENTS

CHECK-OFF

a. HOW APPROVED -by written resolution approved by majority of all the members at a meeting duly called for that purpose

b. EXCEPTION TO SUCH REQUIREMENT -no exception—written resolution is mandatory at all instances.

(Union Dues) -by obtaining the individual written authorization duly signed by the employee which must specify: a. amount b. purpose and c. beneficiary of the deduction. (Agency Fees) -not necessary if: 1. For mandatory activities provided under the Code; and 2. When non-members of the union avail of the benefits of the CBA. Said nonmembers may be assessed agency fees equivalent to that paid by members only by a Board Resolution approved by majority of the members in a general meeting called for the purpose.

CHAPTER III RIGHTS OF LEGITIMATE LABOR ORGANIZATIONS  ART. 242. RIGHTS OF LEGITIMATE LABOR ORGANIZATIONS RIGHTS OF A LEGITIMATE LABOR ORGANIZATION [USERFOE]: 1.Undertake activities for benefit of members 2.Sue and be sued 3.Exclusive representative of all employees 4.Represent union members 5.Furnished by employers of audited financial statements 6.Own properties 7.Exempted from taxes

TITLE V COVERAGE  ART. 243. COVERAGE AND EMPLOYEES’ RIGHT TO SELF–ORGANIZATION  PERSONS/EMPLOYEES ELIGIBLE TO JOIN A LABOR ORGANIZATION FOR PURPOSES OF COLLECTIVE BARGAINING: 1. All persons employed in commercial, industrial and agricultural (CIA) enterprises, and

2. In religious, charitable, medical or educational (RCME) institutions whether operating for profit or not  PERSONS/EMPLOYEES ELIGIBLE TO JOIN A LABOR ORGANIZATION FOR MUTUAL AID AND PROTECTION (AIRSIW): 1. Ambulant, 2. Intermittent, 3. Rural, 4. Self-employed people 5. Itinerant workers and 6. Workers without any definite employers,  PERSONS/EMPLOYEES WHO ARE NOT GRANTED THE RIGHT TO SELF-ORGANIZATION: (HEMACEN) 1. High-level government employees (E.O. 180 Sec. 3) (MANAGERIAL GOVERNMENT EMPLOYEES) GOVERNMENT – OWNED OR CONTROLLED CORPORATIONS WITH AN ORIGINAL CHARTER a. LAW - Employees cannot stage strikes since they are governed by the Civil Service Law. They are enjoined by Civil Service Memorandum Circular No. 6, under pain of administrative sanctions from staging strikes, demonstrations, mass leaves, walkouts and other concerted activities. b. BARGAINING RIGHTS - Corporations with original charters cannot bargain with the government concerning the terms and conditions of their employment. However, they can negotiate with the government on those terms and conditions of employment which are not fixed by law. Thus, they have limited bargaining rights. c.PURPOSE OF ORGANIZATION - Can only form, join or assist labor organization for purposes not contrary to law.

GOVERNMENT – OWNED OR CONTROLLED CORPORATIONS WITHOUT ORIGINAL CHARTER - The GOCC is created under Corporation Code, then employees are covered by the Labor Code. Therefore the employees have the same rights as those as employees of private corporations, one of which is the right to strike. - The GOCC is created under Corporation Code, being governed by the Labor Code, they can bargain with the government concerning the terms and conditions of their employment. Thus, they have unlimited bargaining rights.

- Can form, join or assist labor organization for purposes of CBA, etc.

2. Employees of international organizations with immunities (ICMC vs. Calleja) 3. Managerial employees  whose functions are normally considered as policy-making or managerial  whose duties are of a highly confidential or highly technical in nature (212 LC) 4. Members of the Armed Forces of the Philippines, including police officers, policemen, firemen and jail guards (E.O. 180 Sec. 4); 5. Confidential Confesor)

employees

(Metrolab

vs.

6. Employees of cooperatives who are members (Benguet Elec. Coop. vs Calleja) 7. Non-Employees (Rosario Bros. vs Ople) Foreigners validly working in the Philippines [with permit from DOLE] can form labor organizations, provided the same right to form, join or assist in the formation of labor unions is also given to Filipinos in their country of origin. This embodies the principle of reciprocity. MAY SECURITY GUARDS FORM A LABOR ORGANIZATION? YES. Under RA 6715, they may now freely join a labor organization of the rank-and-file or that of the supervisory union, depending on their rank. (Meralco vs. Secretary of Labor)

 EXTENT OF THE RIGHT TO SELF-ORGANIZATION 1. To form, join and assist labor organizations for the purpose of collective bargaining through representatives of their own choosing and 2. To engage in lawful concerted activities for the same purpose- for their mutual aid and protection.  ART. 244. RIGHTS OF EMPLOYEES IN THE PUBLIC SERVICE

 THE FOLLOWING ARE CONSIDERED NEGOTIABLE IN GOCCs WITH ORIGINAL CHARTER: 1. schedule of vacation and other leaves 2. work assignment of pregnant women 3. personnel growth and development 4. communication system – lateral and vertical 5. provision for protection and safely 6. provision for facilities for handicapped personnel 7. provision for first-aid medical services for married women 8. annual medical/physical examination 9. recreational, social, athletic and cultural activities and facilities (Rules implementing WO 180)  THE FOLLOWING ARE CONSIDERED NOT NEGOTIABLE: 1. Those which require appropriation of funds, such as: a. increase in salary emoluments and other allowance not presently provided for by law b. facilities requiring capital outlays c. car plan d. provident fund e. special hospitalization, medical and dental services f. rice/sugar/other subsidies g. travel expenses h. increase in retirement benefits 2. Those that involve the exercise of management prerogatives, such as:



a. appointments b. promotion c. assignments/details d. reclassification/upgrading of position e. revision of compensation structure f. penalties imposed as a result of disciplinary actions g. selection of personnel to attend seminar, trainings, study grants h. distribution of work load i. external communication linkages Government employees and employees of government-owned and controlled corporations with original charters may bargain, however, such bargaining power is limited.

NOTE:

The Public Sector Labor Management Council (PSLMC), created by E.O. 180 has jurisdiction to hear charges of ULP filed by government employees against their employer.  REASONS WHY EMPLOYEES IN GOCCs INCORPORATED UNDER THE CORPORATION CODE ARE ALLOWED TO ORGANIZE:

1. they are not involved in public service 2. terms of employment are not fixed by law 3. they are governed by the provisions of the Labor Code not by the Civil Service Law

 ART. 245. INELIGIBILITY OF MANAGERIAL EMPLOYEES ORGANIZATION; RIGHT OF SUPERVISORY EMPLOYEES.

TO

JOIN

ANY

LABOR

 MANAGERIAL EMPLOYEE - one who is vested with powers or prerogatives to lay down and execute management policies and /or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees.  MANAGERIAL EE UNDER LS AND LR Managerial Managerial Employees under Employees Labor Standards under Labor Relations a. POWERS/DUTIES - primary duty consists - See definition of the management of above the establishment in which they are employed or of a department or subdivision - does not include b. EXTENT - includes the officers the managerial and members of the staff since they are classified as managerial staff

c. PURPOSE OF DEFINITION

- to determine w/n certain employees are covered by Book III of the LC on Conditions of

supervisory employees [who may/may not be eligible to join a labor union with the rank and file employees] - to determine an employee’s eligibility in joining/forming a labor union.

Employment.

 Reason for ineligibility in the collective bargaining process, managerial employees are the alter ego of the employers and thus they are supposed to be on the side of the employer to act as its representatives, and to see to it that its interests are well protected. The employer is not assured of such protection if these employees are union members.  In the same manner, the labor union might not be assured of their loyalty to the union in view of the evident conflict of interest.  The union can also become company-dominated with the presence of managerial employees in Union Membership (Bulletin Publishing Co. Inc. vs. Hon. Augusto Sanchez).  SUPERVISORY EMPLOYEES - those who, in the interest of the employer, effectively recommend such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment.

MAY SUPERVISORY EMPLOYEES FORM, ASSIST, JOIN A LABOR ORGANIZATION? YES, on their own and NOT with the rank-and-file employees (RA 6715). 



The TEST IS: Do they exercise independent judgment which is not subject to evaluation of other department heads/other superiors? If in the affirmative, then they may-must form a labor organization of their own [separate from the rank and file employees] If their responsibilities do not inherently require the exercise of discretion and independent judgment [or merely routinary/clerical in nature] then they may join the union composed of the rank and file employees.

NOTE: It is the nature of the employee’s functions and not the nomenclature or title given to his job which determines whether he has a rank and file or managerial status. (Engineering Equipment, Inc. vs. NLRC) MAY THEY AFFILIATE WITH A FEDERATION OF LABOR ORGANZATIONS OF RANK AND FILE EMPLOYEES? YES. Provided that: a. the federation is not actively involved in union affairs in the company; and b. the rank and file employees are not directly under the control of the supervisors (Adamson vs. Adamson)  EFFECT OF HAVING MIXED MEMBERSHIP – A union whose membership is a mixture of the supervisors and the rank and file is not and cannot become a legitimate labor organization. It cannot petition for a certification election, much less ask to be recognized as the bargaining representative of employees.  CONFIDENTIAL EMPLOYEES - by the very nature of their functions, they assist and act in a confidential capacity to, or, have access to confidential matters of persons who exercise managerial functions in the field of labor relations. Therefore, the rationale behind the ineligibility of managerial employees to form, assist or join a labor union equally applies to them. (Philips Industrial Dev’t Inc. Vs. NLRC) - they are entrusted with confidence on delicate matters, or with the custody, handling, or care and protection of the employer’s property. Under the doctrine of necessary implication, confidential employees are similarly disqualified under Article 245. (Republic Planters Bank vs. Torres) NOTE: The phrase “in the field of labor relations” is important. It stresses labor nexus, i.e., confidentiality of the position is related or linked to labor relations matters.  Access to information which is regarded by the employer to be confidential from the business standpoint, such as financial information or technical trade secrets, will not render an employee a confidential employee. (SMC Supervisors & Exempt Union vs. Hon. Laguesma, et al.)  Confidentiality is not a matter of official rank, it is a matter of job content and authority. It is not measured by closeness to or distance from top management, but by the significance of the jobholder’s role in the pursuit of corporate objectives and strategies.  Every managerial position is confidential because one does not become a manager without having gained the confidence of the appointing authority. But not every confidential employee is managerial; he may be a supervisory or even a rank-and-file employee.

 ART. 246. NON-ABRIDGEMENT OF THE RIGHT TO SELF-ORGANIZATION “THE RIGHT TO SELF-ORGANIZATION SHALL NOT BE ABRIDGED” MEANS: It shall be unlawful for any person to: a. b. c. d.

restrain, coerce, discriminate against, or unduly interfere

- with employees and workers in their exercise of the right to self-organization. 

Any act intended to weaken or defeat the right is regarded by law as an offense, which is technically called “unfair labor practice.”

TITLE VI

UNFAIR LABOR PRACTICES CHAPTER I CONCEPT  ART. 247. UNFAIR LABOR PRACTICES  NATURE OF UNFAIR LABOR PRACTICES: 1. VIOLATE THE CONSTITUTIONAL RIGHT of workers and employees to self-organization; 2. are INIMICAL TO THE LEGITIMATE INTERESTS of both labor and management, including their right to bargain collectively and otherwise deal with each other in an atmosphere of freedom and mutual respect 3. DISRUPT INDUSTRIAL PEACE; and 4. hinder the promotion of healthy and stable labor-management relations and mutual respect [LABOR-MNGT RELATIONS-UNSTABLE];  2 ELEMENTS OF UNFAIR LABOR PRACTICE: 1. employer-employee relationship between the offender and the offended 2. act done is expressly defined in the Code as an act of unfair labor practice 3. it is now considered a criminal offense triable by the criminal court NOTE: Prohibited acts are all related to the workers' self-organizational right and the the observance of a CBA, except Art. 248 (f) dismissing or prejudicing an employee for giving testimony under the Code.  ULP has a technical meaning.  It is a practice unfair to labor, although the offender may either be an employer or a labor organization  It refers to acts opposed to workers' right to organize. Without this, the act, no matter how unfair, is not ULP.  It commonly connotes anti-unionism.

 It also refers to gross violation of CBA provisions. Gross means the act is malicious and flagrant.  2 ASPECTS OF UNFAIR LABOR PRACTICE: CIVIL CASE CRIMINAL CASE A. PERSONS LIABLE 1. Officers and 1. Agents and officers agents of who participated or employer or authorized or ratified 2. Labor the act. organization, 2. Agents, officers and representatives, members agents of the government board, including ordinary members B. JURISDICTION -Labor Arbiters of -MTC/RTC as the case the NLRC may be. C. QUANTUM OF PROOF NEEDED -substantial -beyond reasonable doubt evidence [subject to prosecution and punishment] D. PRESCRIPTIVE PERIOD - one year from - one year from the the accrual of the accrual of the ULP act, ULP act. however it will be suspended once the administrative case has been filed and would only continue running once the administrative case has attained finality. Final judgment in the administrative proceeding finding that ULP has been committed is a prerequisite in filing a criminal case for ULP NOTE: Final judgment in the administrative proceedings shall not be binding in the criminal case nor shall be considered as an evidence of guilt but merely as a proof of compliance of the requirements prescribed by the Code.

CHAPTER II UNFAIR LABOR PRACTICES OF EMPLOYERS  ART 248. ULP THAT MAY BE COMMITTED BY AN EMPLOYER (1-10)

1. To INTERFERE WITH, RESTRAIN OR COERCE EMPLOYEES - in the exercise of their right to self-organization; INTERFERENCE Examples: - outright and unconcealed intimidation - interrogation employer must communicate to the employee the purpose of questioning 1. assure him that no reprisal would take place 2. obtain employee participation voluntarily 3. must be free from employer hostility to union organization 4. must not be coercive in nature -intimidating expressions of opinion by employer TEST OF INTERFERENCE OR COERCION - whether the employer has engaged in conduct which it may reasonably be said tends to interfere with the free exercise of the employees' right and it is not necessary that there be direct evidence that any employee was in fact intimidated or coerced by the statements of threats or the employer if there is a reasonable interference that the anti-union conduct of the employer does have an adverse effect of self-organization and collective bargaining. 2. TO REQUIRE AS A CONDITION FOR EMPLOYMENT THAT A PERSON OR AN EMPLOYEE - shall not join a labor organization or - shall withdraw from one to which he belongs;  YELLOW DOG CONTRACT - A promise exacted from workers as a condition of employment that they are not to belong to, or attempt to foster, a union during their period of employment. It is null and void because: - It is contrary to public policy for it is tantamount to involuntary servitude. - It is entered into without consideration for employees in waiving their right to selforganization - Employees are coerced to sign contracts disadvantageous to their family. Does Art. 248 (3) mean that an employer cannot contract out work? NO. Contracting out services is not ULP per se. It is ULP only when the following conditions exist: 1. the service contracted- out are being performed by union members; and 2. such contracting-out interferes with, restrains, or coerce employees in the exercise of their right to self-organization. HOWEVER, when the contracting-out is being done to minimize expenses, then it is a valid exercise of management prerogative. 3. To CONTRACT OUT SERVICES OR FUNCTIONS BEING PERFORMED BY UNION MEMBERS - when such will interfere with, restrain or coerce employees in the - exercise of their right to self-organization; 4. To INITIATE, DOMINATE, ASSIST OR OTHERWISE INTERFERE - with the formation or administration of any labor organization, - including the giving of financial or other support to it or its organizers or officers; (Formation of Company Union)

5. To DISCRIMINATE IN REGARD TO WAGES, hours of work, and other terms and conditions of employment in order to encourage or discourage membership in any labor organization. TEST OF DISCRIMINATION- whenever benefits or privileges given to one is not given to the other under similar or identical conditions when directed to encourage or discourage union membership (see more discussions below) 6. To DISMISS, DISCHARGE OR OTHERWISE PREJUDICE OR DISCRIMINATE against an employee - for having given or being about to give testimony under this Code; (The only ULP act which is not anti-unionism) DISCRIMINATION BECAUSE OF TESTIMONY  TEST: the subject matter of the testimony can be anything under the Code  what is ULP is the employer's retaliatory act regardless of the subject of employee's complaint or testimony 7. TO VIOLATE THE DUTY TO BARGAIN

COLLECTIVELY AS PRESCRIBED BY THIS CODE;

8. TO 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

disputes; or 9.

To VIOLATE A COLLECTIVE BARGAINING AGREEMENT.(GROSSLY!) the violation must be gross and with respect to the economic provision of the CBA (flagrant and with malice)  All the aforementioned acts (Nos. 1-9) must have a relation to the employees’ exercise of their to self-organization. Anti-union or anti-organization motive must be proved because it is a definitional element of ULP.  RUNAWAY SHOP - an industrial plant moved by its owners from one location to another to escape union labor regulations or state laws or to discriminate against employees at the old plant because of their union activities. 

-

COMPANY UNIONISM 1. Initiation of the company union idea by: a. outright formation by employer or his representatives b. employee formation on outright demand or influence by employer c. managerially motivated formation by employees 2. financial support to the union by: a. employer defrays union expenses b. pays attorney's fees to the attorney who drafted the Constitution or by laws of the union 3. employer encouragement and assistance by immediate granting of exclusive recognition as bargaining agent without determining whether the union represents majority of the employees 4. supervisory assistance by soliciting membership, permitting union activities during work time or coercing employees to join the union by threats of dismissal or demotion.

 DISCRIMINATION FOR OR AGAINST UNION MEMBERSHIP TEST OF DISCRIMINATION: That the discharge of an employee was motivated by his union activity. Such inference must be based on evidence, direct or circumstantial, not upon mere suspicion.

 CONSTRUCTIVE DISCHARGE - ULP where employer prohibits employees from exercising their rights under the Code, on pain of discharge, and the employee quits as a result of the prohibition  THREE COMPONENTS OF ART. 248(5) (DISCRIMINATION): 1.It prohibits discrimination in terms and conditions of employment in order to encourage or discourage membership in the union; 2.It gives validity to union security agreements; 3.It allows an agency shop arrangement whereby agency fees may be collected from nonunion members.  SECURITY ARRANGEMENTS - stipulations in the CBA requiring membership in the contracting union as a condition for employment or retention of employment in the company.  PRINCIPLES OF UNION SECURITY ARRANGEMENTS: 1. Protection - To shield union members from whimsical and abusive exercise of management prerogatives. 2. Benefits - An additional membership will insure additional source of income to the union in the form of union dues and special assessment. 3. Self-preservation- It strengthens the union through selective acceptance of new members on the basis of commitment and loyalty.  DIFFERENT KINDS OF UNION SECURITY ARRANGEMENTS: (EXCEPTIONS TO ULP ON INTERFERENCE ON THE EMPLOYEES’ EXERCISE OF THEIR RIGHT TO SELF-ORGANIZATION) 1. CLOSED-SHOP AGREEMENT - the employer undertakes not to employ any individual who is not a member of the contracting union and the said individual once employed must, for the duration of the agreement, remain a member of the union in good standing as a condition for continued employment. - does not have any retroactivity - apply only to new hires EXCEPTIONS: a. employees belonging to any religious sect which prohibit affiliation of their members with any labor organization are not covered by such agreement—The free exercise of religious belief is superior to contract rights (Victoriano vs. Elizalde Rope Workers). b. members of the rival union are not covered by such arrangement. SEMI-CLOSED SHOP AGREEMENT- has no requirement for the employee to remain as member of the contracting union in good standing as a condition for continued employment. 2. UNION SHOP AGREEMENT -stipulation whereby any person can be employed by the employer but once employed such employee must, within a specific period, become a member of the contracting union and remain as such in good standing for continued employment for the duration of the CBA [take note of the exceptions in the preceding number.] 3. MAINTENANCE OF MEMBERSHIP CLAUSE - the agreement DOES NOT require non-members to join the contracting union BUT provides that those who are members thereof at the time of the execution of the CBA and those who may thereafter on their own volition become members must for the duration of the agreement maintain their membership in good standing as a condition for continued employment in the company for the duration of the CBA.

4. PREFERENTIAL SHOP AGREEMENT – an agreement whereby the employer merely agrees to give preference to the members of the bargaining union in hiring, promotion or filing vacancies and retention in case of lay-off. The employer has the right to hire from the open market if union members are not available. 5. AGENCY SHOP AGREEMENT - an agreement whereby employees must either join the union or pay to the union as exclusive bargaining agent a sum equal to that paid by the members.  This is directed against “FREE RIDER” employees who benefit from union activities without contributing support to the union, to prevent a situation of non-union members enriching themselves at the expense of union members.  Employee members of another/rival union are not considered free riders since when the union [agent] bids to be the bargaining agent, it voluntarily assumed the responsibility of representing all the employees in the appropriate bargaining unit.

 REQUIREMENTS FOR A VALID TERMINATION BY THE EMPLOYER OF THE SERVICES OF AN EMPLOYEE PURSUANT TO A UNION OR CLOSED-SHOP AGREEMENT: 1. The agreement must be expressed in a CLEAR AND UNEQUIVOCAL way so as not to leave room for interpretation because it is a limitation to the exercise of the right to selforganization.  Any doubt must be resolved against the existence of a closed-shop agreement. 2. The agreement can only have PROSPECTIVE APPLICATION and cannot be applied retroactively. 3. It can only be exercised by giving the employee his right to DUE PROCESS. - The employer has the right to satisfy himself that there are sufficient bases for the request of the union. The termination of the services of the employee is not automatic upon the request of the union. 4. It cannot be applied to employees who are already MEMBERS OF THE RIVAL UNION or to the employees based on their religious beliefs.

CHAPTER III UNFAIR LABOR PRACTICES OF LABOR ORGANIZATIONS  ART. 249. UNFAIR LABOR PRACTICES OF LABOR ORGANIZATIONS a. To RESTRAIN OR COERCE employees in the exercise of their right to self-organization. However, a labor organization shall have the right to prescribe its own rules with respect to the acquisition or retention of membership; b. To CAUSE OR ATTEMPT TO CAUSE AN EMPLOYER TO DISCRIMINATE AGAINST AN EMPLOYEE, including discrimination c. To VIOLATE THE DULY OR REFUSE TO BARGAIN COLLECTIVELY with the employer provided that it is the representative of the employees; d. TO CAUSE OR ATTEMPT TO CAUSE AN EMPLOYER TO PAY OR DELIVER OR AGREE TO PAY OR DELIVER ANY MONEY or other things of value, in the nature of an exaction, for services which are not performed or not to be performed, including the demand for a fee for union negotiations; (This is called FEATHERBEDDING) e. To ASK FOR OR ACCEPT NEGOTIATION OR ATTORNEY’S FEES FROM EMPLOYERS as part of the settlement of any issue in collective bargaining or any other dispute; or

f.

To GROSSLY VIOLATE A COLLECTIVE BARGAINING AGREEMENT. The violation must be gross and must be with respect to economic provisions of the CBA flagrantly and with malice.

 PERSONS CIVILLY LIABLE FOR ULP: 1. Officers and agents of employer 2. Labor organization, officers and agents 3. Agents and officers who participated or authorized or ratified the act.  FEATHERBEDDING - refers to the practice of the union or its agents in causing or attempting to cause an employer to pay or deliver or agree to pay or deliver money or other things of value, in the nature of exaction, for services which are not performed or not to be performed, as when a union demands that the employer maintain personnel in excess of the latter’s requirements.  It is not featherbedding if the work is performed no matter how unnecessary or useless it may be.  SWEETHEART DOCTRINE – considers it ULP for a labor organization to ask for or accept negotiation or attorney’s fees from the employer in settling a bargaining issue or dispute 

resulting CBA is considered a “sweetheart contract” – a CBA that does not substantially improve the employees’ wages and benefits.

TITLE VII COLLECTIVE BARGAINING AND ADMINISTRATION OF AGREEMENTS  ART. 250. PROCEDURE IN COLLECTIVE BARGAINING  COLLECTIVE BARGAINING –negotiation by an organization or group of workmen, in behalf of its members, with the employer, concerning wages, hours of work and other terms and conditions of employment and the settlement of disputes by negotiation between an employer and the representative of his employees.  Negotiation towards a collective agreement.  The mechanics of collective bargaining is set in motion only when the following JURISDICTIONAL PRECONDITIONS are present: 1. POSSESSION OF THE STATUS OF MAJORITY representation by the employees’ representative in accordance with any of the means of selection or designation provided for by the Labor Code; 2. proof of MAJORITY REPRESENTATION (Certification of the BLR that the representative of the employees in the sole and exclusive bargaining agent having won in a certification election); and 3. a DEMAND TO BARGAIN under Article 250 (a) of the Labor Code. (Kiok Loy vs. NLRC) COLLECTIVE BARGAINING AGREEMENT (CBA) - a negotiated contract between a legitimate labor organization and the employer concerning: a. wages, b. hours of work, and c. all other terms and conditions of employment in a bargaining unit, including mandatory provisions for grievances and arbitration machineries.

PROCEDURE IN COLLECTIVE BARGAINING 1. 2. 3.

Written NOTICE with statement of proposals REPLY by the other party within 10 calendar days with counter proposals In case of differences, either party may REQUEST FOR A CONFERENCE which must be held within 10 days from receipt of request. 4. If not settled NCMB MAY INTERVENE AND ENCOURAGE the parties to submit the dispute to a voluntary arbitrator 5. If not resolved, the parties may go to where they want AND RESORT TO ANY OTHER LAWFUL MEANS [either to settle the dispute or submit it to a voluntary arbitrator].  During the conciliation proceeding in the Board, the parties are prohibited from doing any act which may disrupt or impede the early settlement of the disputes (250[d] LC).  8 STAGES IN THE NEGOTIATION FOR A COLLECTIVE BARGAINING AGREEMENT: 1. PRELIMINARY process - written notice for negotiation which must be clear and unequivocal 2. NEGOTIATION Process 3. EXECUTION Process – signing of the agreement 4. PUBLICATION for at least 5 days before ratification 5. RATIFICATION by the majority of all the workers in the bargaining unit represented in the negotiation (not necessary in case of arbitral award) 6. REGISTRATION Process Requisites for registration: a. mandatory provisions b. payment of P1, 000 c. 5 copies of CBA d. proof of ratification 7. ADMINISTRATION Process – the CBA shall be jointly administered by the management and the bargaining agent for a period of 5 years 8. INTERPRETATION AND APPLICATION Process  MANDATORY PROVISIONS OF THE CBA: 1. wages 2. hours of work 3. grievance machinery 4. voluntary arbitration 5. family planning 6. rates of pay 7. mutual observance clause 

In addition, the Bureau requires that the CBA should include a clear statement of the terms of the CBA.

Note: Employer’s duty to bargain is limited to mandatory bargaining subjects; as to other matters, he is free to bargain or not to bargain.  ART. 252. MEANING OF DUTY TO BARGAIN COLLECTIVELY

 DUTY TO BARGAIN COLLECTIVELY - the performance of a mutual obligation: a.

to MEET AND CONVENE promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages, hours of work and all other terms and conditions of employment including proposals for adjusting any grievances or questions arising under such agreement and

b. EXECUTING A CONTRACT incorporating such agreements if requested by either party. LIMITATIONS: 1. the duty to bargain collectively does not compel any party to: a. agree to a proposal; or b. make a concession. No room for “Take it or Leave it” posture. 2. the parties cannot stipulate terms and conditions of employment which are below the minimum requirements prescribed by law (Meaning of duty to bargain when there exists a CBA, see discussion under Art. 253) 

Collective bargaining does not end with the execution of the agreement. It is a continuous process. The duty to bargain imposes on the parties during the term of their agreement the mutual obligation to meet and confer promptly and expeditiously and in good faith for the purpose of adjusting any grievances or question arising under such agreement. (Republic Savings Bank vs. CA)

 FOUR (4) FORMS OF ULP IN BARGAINING: a. failure or refusal to meet and convene b. evading the mandatory subjects of bargaining c. bad faith in bargaining [boulwarism], including failure or refusal to execute the CBA, if requested d. gross violation of the CBA Do economic exigencies justify refusal to bargain? An employer has been held not guilty of refusal to bargain by adamantly rejecting the union's economic demands where he is operating at a loss, on a low profit margin, or in a depressed industry, as long as he continues to negotiate. But financial hardship constitutes no excuse for refusing to bargain collectively. ACTS NOT DEEMED REFUSAL TO BARGAIN: 1. adoption of an adamant bargaining position in good faith 2. refusal to bargain over demands for commission of ULP 3. refusal to bargain during period of illegal strike 4. there is no request for bargaining 5. union seeks recognition for an inappropriately large unit 6. union seeks to represent some persons who are excluded from the Code 7. the rank-and-file unit includes supervisors or inappropriate otherwise 8. the demand for recognition and bargaining is made within the year following a certification election in which the clear choice was no union and no ad interim significant change has taken place in the unit 9. the union makes unlawful bargaining demands BARGAINING TO THE POINT OF DEADLOCK OR IMPASSE:

1. over a mandatory subject - party may insist on bargaining and will not be construed as bargaining in bad faith REASON: duty to bargain requires meeting and convening on the terms and conditions of employment but does not require assent to the other party's proposals. 2. over a non-mandatory subject - party may not insist on bargaining to the point of impasse, otherwise, he will be construed as bargaining in bad faith. EXAMPLE: The employer's insistence that the union should change its negotiator before bargaining can proceed to the employees' wage and benefits is an instance of bad-faith bargaining because the composition of the negotiating panel is not a mandatory subject of bargaining. Hence, if Party A insists on first settling a non-mandatory subject before tackling a mandatory subject, Party B may complain that Party A's posture is just an excuse to avoid bargaining on the mandatory, essential subjects of bargaining; thus, Party B can charge that Party A is bargaining in bad faith or is evading bargaining on terms and conditions of employment - in short, Party A is committing ULP. NOTE: What the rule forbids is the posture of making settlement of a non-mandatory subject a pre-condition to the discussion or settlement of a mandatory subject.  ART. 253. DUTY TO BARGAIN COLLECTIVELY WHEN THERE EXISTS A COLLECTIVE BARGAINING AGREEMENT  GENERAL RULE: When there is an existing CBA, the duty to bargain collectively shall also mean that neither party shall TERMINATE nor MODIFY such agreement during its lifetime. It is the duty of both parties to: 253

253-A/256

A.FREEDOM PERIOD -the notice of intention to terminate, amend or alter the provisions of the CBA shall be filed within the sixty (60) day period, immediately prior to the expiration of the CBA. -the economic provisions however may be renegotiated not later than three (3) years. Those economic provisions entered within 6 months from the expiry of their term as fixed in the CBA shall retroact to the day immediately following such date, if beyond 6 months the effectivity is by agreement of the parties.

- representation aspect of the CBA shall be for a term of five (5). A petition for certification election may be entertained and a certification election may be conducted within the 60-day period immediately prior to the expiration of the CBA.

B. WHAT MAY BE CHANGED DURING THE 60DAY FREEDOM PERIOD -re-negotiable provisions of the CBA particularly the non-representation aspect (ECONOMIC PROVISIONS may be renegotiated not later than three (3) years.

a. keep the status quo and b. to continue in the full force and effect the terms and conditions of the existing CBA  EXCEPTION: during the 60-day period prior to its expiration, upon service of a written notice of a party’s intention to terminate or modify the same, a party may choose to terminate or modify the non-representational aspect of the CBA only after the expiration of CBA of fixed duration.  DUTY TO BARGAIN COLLECTIVELY UNDER 253 AND 253-A/256  AUTOMATIC RENEWAL CLAUSE – Art. 253 provides that the CBA shall remain effective and enforceable even after the expiration of the period fixed by the parties as long as no new agreement is reached by them.

 representation aspect—it may be resolved by holding certification election

WHAT MAY BE DONE DURING THE 60DAY FREEDOM PERIOD:

a. A labor union may DISAFFILIATE from the mother union to form a local or independent union only during the 60-day freedom period immediately preceding the expiration of the CBA. [take note of the limitation-see discussions on registration of labor unions] b. either party can serve a written notice to TERMINATE OR MODIFY the agreement at least 60 days prior to its expiration period [on re-negotiable/non-representation aspect of the CBA—see discussion on 253] c. a petition for CERTIFICATION ELECTION may be filed

 ART. 253–A. TERMS OF A COLLECTIVE BARGAINING AGREEMENT (CONTRACT BAR RULE)  DURATION OF THE CBA: 1. With respect to the representation aspect, the same lasts for 5 years 2. With respect to other provisions [economic provisions], the same may last for a maximum period of 3 years after the execution of the CBA RULE ON RETROACTIVE EFFECTS OF OTHER ECONOMIC PROVISIONS WITH FIXED TERM OR DATES OF EXPIRY AS PROVIDED IN THE CBA: a. Those made within 6 months after the date of expiry of the CBA - Any agreement on such other provisions of the CBA made within 6 months after the date of expiry of the CBA is subject to AUTOMATIC RETROACTION to the day immediately following such date of expiry. b. Those not made within 6 months the parties may agree to the DATE OF RETROACTION. - This rule applies only if there is an EXISTING AGREEMENT. If THERE IS NO EXISTING AGREEMENT, there is no retroactive effect because the date agreed upon shall be the start of the period of agreement. NOTE: Article 253-A on retroaction does not apply if the provisions were imposed by the Secretary of Labor by virtue of arbitration. It applies only if the agreement was voluntarily made by the parties.  ART. 254. NO INJUNCTION RULE No temporary or permanent injunction or restraining order in any case involving or growing out of labor disputes shall be issued by any court or other entity, except as otherwise provided in Articles 218 (Powers of the Commission/NLRC) and 264 (Prohibited Activities) of this Code. REASON: injunction contradicts the constitutional preference for voluntary modes of dispute settlement 

In cases of strikes/picketing, third parties or innocent bystanders may secure a court (regular court) injunction to protect their rights. (PAFLU vs. CLORIBEL)

 ART. 255. EXCLUSIVE BARGAINING REPRESENTATION AND WORKER’S PARTICIPATION IN POLICY AND DECISION-MAKING WHAT IS THE MEANING OR EXTENT OF THE WORKERS’ RIGHT TO PARTICIPATE IN POLICY AND DECISION-MAKING PROCESSES? Such right refers ONLY to participation in grievance procedures and voluntary modes of settling disputes and NOT to formulation of corporate programs and policies.

NOTE: An employer may solicit questions, suggestions and complaints from employees eventhough the employees are represented by a union, provided: 1. the collective bargaining representative executes an agreement waiving the right to be present on any occasion when employee grievances are being adjusted by the employer and 2. employer acts strictly within the terms of this waiver agreement.

ONE-UNION, ONE-COMPANY POLICY - the proliferation of unions in an employer unit is discouraged as a matter of policy unless there are compelling reasons which would deny a certain class of employees the right to self-organization for purposes of collective bargaining. EXCEPTION: - supervisory employees who are allowed to form their own unions apart from the rank-andfile employees - the policy should yield to the right of employees to form unions for purposes not contrary to law, self-organization and to enter into collective bargaining negotiations.  two companies cannot be treated into a single bargaining unit even if their businesses are related.  subsidiaries or corporations formed out of former divisions of a mother company following a reorganization may constitute a separate bargaining unit.  LABOR MANAGEMENT COUNCILS - deal with the employer on matters affecting employee’s rights, benefits and welfare.  They may be formed even if there is already a union in the company.  ARTS. 256-259 PETITION FOR CERTIFICATION ELECTION  BARGAINING UNIT- a group of employees of a given employer, comprised of all or less than all the entire body of the employees, which, consistent with equity to the employer, indicate to be best suited to serve the reciprocal rights and duties of the parties under the collective bargaining provision of the law.  CERTIFICATION YEAR - refers to the period wherein collective bargaining should begin, which is within 12 months following the determination and certification of employees' exclusive bargaining representative.  FOUR FACTORS IN DETERMINING THE APPROPRIATE BARGAINING UNIT: 1. the EXPRESS WILL OR DESIRE of the employees (Globe Doctrine);  the desires of all the employees are relevant to the determination of the appropriate bargaining unit. The relevance of the wishes of the employees concerning their inclusion or exclusion from a proposed bargaining unit is inherent in the basic right to self organization 2. the SUBSTANTIAL AND MUTUALITY INTEREST factor; 3. prior collective bargaining HISTORY; and

4. EMPLOYMENT STATUS, such as a. temporary b. seasonal, and c. probationary employee

 THINGS TO CONSIDER IN DETERMINING THE COMMUNITY OF INTEREST DOCTRINE: 1. similarity in the scale and manner of determining earnings 2. similarity in employment benefits, hours of work and other terms and conditions of employment 3. similarity in the kinds of work performed 4. similarity in the qualifications, skills and training of the employees 5. frequency of contract or interchange among the employees 6. common supervision and determination of labor-relations policy 7. history of previous collective bargaining 8. desires of the affected employees 9. extent of union organization  MODES OF CHOOSING THE EXCLUSIVE BARGAINING UNIT: 1. SELECTION - certification election 2. DESIGNATION - voluntary recognition A. CERTIFICATION ELECTION – the process of determining by secret ballot the sole and exclusive bargaining agent of the employees in an appropriate bargaining unit, for purposes of collective bargaining  CERTIFICATION vs. CONSENT ELECTION CERTIFICATION CONSENT ELECTION ELECTION A. NATURE - separate and distinct from a consent election

- a separate and distinct process and has nothing to do with the import and effect of a certification election

B. PURPOSE - to determine the sole and exclusive bargaining agent of all the employees in an appropriate bargaining unit for the purpose of collective bargaining;

- to determine the issue of majority representation of all the workers in the appropriate collective bargaining unit mainly for the purpose of determining the administrator of the CBA when the contracting union suffered massive disaffiliation but not for the purpose of determining the bargaining agent for purposes of collective bargaining.

DIRECT CERTIFICATION - the process whereby the Med-Arbiter directly certifies a labor organization of an appropriate bargaining unit of a company after a showing that such petition is supported by at least a majority of the employees in the bargaining unit. IT IS NO LONGER ALLOWED. (EO 111) VOLUNTARY RECOGNITION – the process whereby the employer recognizes a labor organization as the exclusive bargaining representative of the employees in the appropriate bargaining unit after a showing that the labor organization is supported by at least a majority of the employees in the bargaining unit.  EFFECT OF VOLUNTARY RECOGNITION BY THE EMPLOYER - through voluntary recognition by the employer, the labor organization is recognized by the employer as the exclusive bargaining agent which may collectively bargain with such employer.

 C.E. IN AN ORGANIZED AND AN UNORGANIZED ESTABLISHMENT ORGANIZED

UNORGANIZED

A. WHEN MANDATORY ON THE PART OF BLR - upon the filing of a verified petition by a legitimate labor organization questioning the majority status of the incumbent bargaining agent within the 60-day freedom period before the expiration of a CBA. - The petition must be supported by the written consent of at least 25% of ALL THE EMPLOYEES IN THE APPROPRIATE BARGAINING UNIT. - the employer cannot file a petition for certification election; only a legitimate labor organization can file such petition.

B. PERIOD FOR FILING THE PETITION a. when there is a CBA, the labor organization can file a petition for certification election within the 60-day freedom period (CONTRACT-BAR RULE) b. when there is no CBA, then the labor organization can file a petition for certification election at any time, subject to the Deadlock Bar Rule.

Upon: a. the filing of a verified petition by a legitimate labor organization; or b. upon the filing of a petition by the employer when such employer is requested by the employees to bargain collectively.

- any time, subject however to the ONEELECTIONPER-YEAR RULE.

 REQUISITES BEFORE A LABOR UNION CAN BE DECLARED A WINNER (DOUBLE MAJORITY RULE): 1. Majority of the eligible voters cast their votes AND 2. Majority of the valid votes cast is for such union.  HOW TO DETERMINE THE DOUBLE MAJORITY RULE: 1. In determining the eligible votes cast [FIRST MAJORITY], include spoiled ballots 2. In determining valid votes [SECOND MAJORITY], eliminate spoiled ballots but include challenged votes

RUN-OFF ELECTION: A run-off election is proper if the following conditions exist namely: (a) a VALID ELECTION took place because majority of the Collective Bargaining Unit members voted [FIRST MAJORITY]; (b) the said election presented at least THREE CHOICES, e.g., Union One, Union Two, and No Union (Take Note: “No Union shall not be a choice in the run – off election); (c) NOT ONE OF THE CHOICES OBTAINED THE MAJORITY (50%+1-SECOND MAJORITY) of the valid votes cast; (d) the TOTAL VOTES FOR THE UNIONS IS AT LEAST 50% of the votes cast; (e) there is NO UNRESOLVED CHALLENGED VOTES or election protest which if sustained can materially alter the results (f) the two choices which garnered the highest votes will be voted and the one which garners the highest number of votes will be declared the winner provided they get the majority votes of the total votes cast Who will participate in the run – off? The unions receiving the highest and

second highest number of votes cast.

 Re – Run Election vs. Run – off Election RE – RUN ELECTION RUN – OFF ELECTION Held in instances:

two

1. if one choice receives a plurality of vote and the remaining choices results in a tie; 2. if all choices received the same number of votes; In both instances, the NO UNION is also a choice

Conducted when none of the choices, including the choice of No Union, receives a majority of the valid vote cast. This presupposes no less than three competing choices. In this situation, an election is conducted between the union choices receiving the largest and the second largest number of the valid votes cast.

 RULES WHICH PREVENT THE HOLDING OF A CERTIFICATION ELECTION [DONC]: 1. Deadlock bar rule- when there is a deadlock in collective bargaining and the same has been submitted to NCMB for conciliation and mediation the same bars any petition or conduct of certification election.

2. One year bar rule 3. Negotiation bar rule 4. Contract bar rule 1. CONTRACT-BAR RULE - while a valid and registered CBA of a fixed duration is subsisting, the BLR is not allowed to hold an election contesting the majority status of the incumbent union during the five year term of the CBA except during the sixty day period immediately prior to the expiration of the CBA. REQUIREMENTS IN ORDER TO INVOKE CONTRACT-BAR RULE: 1. 2. 3. 4. 5. 6. 7.

Agreement is in WRITING AND SIGNED by all contracting parties. It must contain THE TERMS AND CONDITIONS of employment. Covered employees in an appropriate bargaining unit [ABU EES COVERED]. It is for a REASONABLE PERIOD or duration. It must be RATIFIED. It must be REGISTERED with the Bureau. The violation of the contract bar rule or the existence of a duly registered CBA must be specifically IMPLEADED AS A DEFENSE.

 EFFECT OF AN INVALID AND UNREGISTERED CBA- there is no bar and therefore a certification election may be held. NOTE: Registration of CBA only puts into effect the contract bar rule but the CBA itself is valid and binding even if unregistered.  EXCEPTIONS TO THE CONTRACT-BAR RULE: 1. 2. 3. 4. 5. 6.

CBA is not registered CBA deregistered CBA was hastily concluded way ahead of the freedom period CBA is incomplete in itself CBA does not foster industrial peace because of schism CBA was concluded in violation of an order enjoining the parties from entering into a CBA until the issue of representation is resolved 7. Petition is filed during the 60-day freedom period SUCCESSOR-IN-INTEREST DOCTRINE – When an employer with an existing CBA is succeeded by another employer, the successor-in-interest who is a buyer in good faith has no liability to the employees in continuing employment and the collective bargaining agreement because these contracts are in personam EXCEPT: a. when the successor-in-interest expressly assumes the obligation or b. the sale is a device to circumvent the obligation or c. the sale or transfer is made in bad faith  SUBSTITUTIONARY DOCTRINE – where there occurs a shift in the employees’ union allegiance after the execution of a collective bargaining contract with the employer, the employees can change their agent (the labor union) but the collective bargaining contract which is still subsisting continues to bind the employees up to its expiration date. They may, however, bargain for the shortening of said expiration date. 

The employees cannot revoke the validly executed collective bargaining contract with their employer by the simple expedient of changing their bargaining agent. The new

agent must respect the contract. (Benguet Consolidated, Inc. vs. Employees and Workers Union-PAFLU)  LIMITATION AS TO ITS APPLICATION – it cannot be invoked to support the contention that a newly certified collective bargaining agent automatically assumes all the personal undertakings of the former agent—like the “no strike clause” in the CBA executed by the latter (Benguet Consolidated Inc. vs. BCI Employees and Workers Union-PAFLU). 2. DEADLOCK BAR RULE - a petition for certification election cannot be entertained if, before the filing of the petition for certification election, a bargaining deadlock to which an incumbent or certified bargaining agent is a party, had been submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout. DEADLOCK – arises when there is an impasse, which presupposes reasonable effort at good faith bargaining which, despite noble intentions, did not conclude in an agreement between the parties. INDICATIONS OF A GENUINE DEADLOCK: 1. the submission of the deadlock to a 2. the deadlock is the subject of a valid notice of strike or lockout

third party conciliator or arbitrator

3. NEGOTIATION BAR RULE - a petition for certification election cannot be entertained if, before the filing of the petition for certification election, the duly recognized or certified union has commenced negotiations with the employer in accordance with Art. 250 of the Labor Code. 4. CERTIFICATION YEAR RULE – no petition for certification election may be filed within one year from the date of a valid certification, consent, or run-off election or from the date of voluntary recognition  EXAMPLES OF BAD FAITH BARGAINING: 1. Surface Bargaining – occurs when employer constantly changes its positions over the agreement. 2. Boulwarism – occurs: a. when the employer directly bargains with the employee disregarding the union. 

The aim was to deal with the Union through the employees, rather than with the employees through the union. b. Employer submits its proposals and adopts a take it or leave it stand. This is not negotiation because the take it or leave it stand implies threat. 3.

Side Bar Technique

TITLE VII- A (as incorporated by RA 6715) GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION  ART. 260. GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION

 GRIEVANCE MACHINERY - a mechanism for the adjustment of controversies or disputes arising from the interpretation or implementation of the CBA and the interpretation or enforcement of company personnel policies  GRIEVANCE - arises when a dispute or controversy arises over the implementation or interpretation of a CBA or from the implementation or enforcement of company personnel policies, and either the union or the employer invokes the grievance machinery provision for the adjustment or resolution of such dispute or controversy. NATURE OF GRIEVANCE PROCEDURE - It is a “must” provision in any CBA and no collective agreement can be registered in the absence of such procedure. It is a part of the continuous process of collective bargaining intended to promote a friendly dialogue between labor and management as a means of maintaining industrial peace.  VOLUNTARY ARBITRATION - contractual proceedings where parties to a dispute select a judge of their own choice and by consent submit their controversy to him for determination. All grievances not settled within 7 days from the date of its submission to the grievance machinery shall automatically be referred voluntary arbitration prescribed in the CBA.  Although the provision mentions “parties to a collective bargaining agreement,” it does not mean that a grievance machinery cannot be set up in a CBA-less enterprise. In any work place where grievance can arise, a grievance machinery (regardless of name) can be established.  In a unionized company, Art. 255 allows an employee, union member or not, to raise a grievance directly to the employer.  ARBITRATION MAY BE INITIATED BY: 1. 2.

SUBMISSION AGREEMENT – where the parties define the disputes to be resolved; or DEMAND OR NOTICE invoking a collective agreement arbitration clause.

 ART 261. JURISDICTION OF VOLUNTARY ARBITRATORS OR PANEL OF VOLUNTARY ARBITRATORS JURISDICTION OF VOLUNTARY ARBITRATORS: 1. EXCLUSIVE ORIGINAL JURISDICTION CONFERRED BY LAW a)All grievances arising from the interpretation or implementation of the CBA. b) Those arising from the interpretation or enforcement of company personnel polices. c)Hear and decide wage distortion issues arising from the application of any wage orders in organized establishments. d) Unresolved grievances arising from the interpretation and implementation of the productivity incentive programs under RA 6071 .  

It is the labor arbiter and not the grievance machinery which has jurisdiction over dismissals pursuant to the union security clause. violations of CBA, except those which are gross in character, shall no longer be treated as ULP and shall be resolved as grievances.

GROSS VIOLATION – flagrant and/or malicious refusal to comply with the economic provisions of the CBA.

2. JURISDICTION BY AGREEMENT OF THE PARTIES (Art. 262)  

-all other disputes including ULP and bargaining deadlocks The disputes the parties may submit to a Voluntary Arbitrator can include any or all the disputes mentioned in Art. 217 which otherwise fall under the exclusive jurisdiction of a labor arbiter. Voluntary arbitration may be viewed as a master procedure to prevent or resolve labor disputes

 GROUNDS FOR JUDICIAL REVIEW OF DECISIONS OF VOLUNTARY ARBITRATORS: 1. 2. 3. 4. 5.

Lack of jurisdiction Grave abuse of discretion Violation of due process Denial of substantial justice Erroneous interpretation of the law



A voluntary arbitrator is a “quasi-judicial instrumentality (Sec 9 BP129 as amended by RA 7902);” hence, a petition for certiorari under Rule 65 of the Rules of Court will lie where a grave abuse of discretion or an act without or in excess of jurisdiction of the voluntary arbitrator is shown, which may be filed with the Court of Appeals.

TITLE VIII STRIKES AND LOCKOUTS AND FOREIGN INVOLVEMENT IN TRADE UNION ACTIVITIES CHAPTER I STRIKES AND LOCKOUTS  ART. 263. STRIKES, PICKETING AND LOCKOUTS  STRIKE - Any temporary stoppage of work by the concerted action of employ ees as a

result of an industrial or labor dispute.

IMPORTANCE: it is the most effective weapon of labor in protecting the rights of employees to improve the terms and conditions of their employment.  Government employees may form labor unions but are not allowed to strike.  Only legitimate labor organizations are given the right to strike.  Ununionized workers may hold a protest action but not a strike  Not all concerted activities are strikes; they may only be protest actions. And they do not necessarily cause work stoppage by the protesters. A strike, in contrast, is always a group action accompanied by work stoppage.  LOCKOUT - means the temporary refusal of an employer to furnish work as a result of an industrial or labor dispute.  PICKETING - the act marching to and fro the employer’s premises, usually accompanied by the display of placards and other signs making known the facts involved in a labor dispute. This is an exercise of one’s freedom of speech.  STRIKE-BREAKER - any person who obstructs, impedes or interferes by force, violence, coercion, threats or intimidation with any peaceful picketing by employees during any labor controversy affecting wages, hour or conditions of work or in the exercise of the right to self organization or collective bargaining  STRIKE AREA – the establishment, warehouse, depots, plants or offices, including the sites or premises used as runaway shops of the employer struck against, as well as the

immediate vicinity actually used by picketing strikers in moving to an fro before all points of entrance to and exit from said establishment SOME EXAMPLES OF STRIKES AND THEIR VALIDITY A. SIT-DOWN STRIKE - is characterized by a temporary work stoppage of workers who thereupon seize or occupy property of the employer or refuse to vacate the premises of the employer. ILLEGAL- amounts to a criminal act because the employees trespass on the premises of the employer. B. WILDCAT STRIKE- is a work stoppage that violates the labor contract and is not authorized by the union. ILLEGAL- It is not valid because it fails to comply with certain requirements of the law, to wit: notice of strike, vote, and report on strike vote. C. SYMPATHETIC STRIKES- are work stoppages of workers of one company to make common cause with other strikers of other companies, without demands or grievances of their own against the employer. ILLEGAL - because there is no labor dispute between the workers who are joining the strikers and the latter’s employer. D. SECONDARY STRIKES- are work stoppages of workers of one company to exert pressure on their employer so that the latter will in turn bring pressure upon the employer of another company with whom another union has a labor dispute. ILLEGAL- because there is no labor dispute involved. IS A “WELGA NG BAYAN” LEGAL? NO. A “welga ng bayan” is illegal because it is a political strike and therefore there is neither a bargaining deadlock nor any ULP. It is a political rally.  GROUNDS FOR THE DECLARATION OF STRIKE: 1. deadlock in collective bargaining (ECONOMIC); and/or 2. unfair labor practices (POLITICAL) ECONOMIC STRIKE

ULP STRIKE [POLITICAL] A. NATURE - A voluntary strike - An involuntary because the strike; the labor employee will organization is declare a strike to forced to go on compel management strike because of to grant its demands. the ULP committed against them by the employer. It is an act of selfdefense since the employees are being pushed to the wall and their only remedy is to stage a strike. B. INITIATED BY: The collective - either bargaining agent of a. Collective the appropriate bargaining agent bargaining unit can or declare an economic b. the legitimate

strike.

labor organization in behalf of its members C. COOLING OFF PERIOD -30 days from the filing of the notice of strike before the -15 days from the intended date of filing of the actual strike subject notice of strike. to the 7-day strike ban. D. EXCEPTION TO THE COOLING-OFF PERIOD - No exception— - the cooling off period may be mandatory. - Notice of strike and strike vote maybe dispensed with. They may strike immediately.

dispensed with, and the union may take immediate action in case of dismissal from employment of their officers duly elected in accordance with the union’s Constitution and By-laws, which may constitute union busting where the existence of the union is threatened. - BUT it must still observe the mandatory 7-day period before it can stage a valid strike.

E. STRIKE DURATION PAY IN CASE OF A LEGAL STRIKE - not entitled to said pay based on the principle that a ‘fair day’s wage accrues only for a fair day’s labor’

- may be awarded the said paid in the discretion of the authority deciding the case.

 CHARACTERISTICS OF STRIKES: 1. there must be an established relationship between the strikers and the person/s against whom the strike is called 2. the relationship must be one of employer and employee 3. the existence of a dispute between the parties and the utilization by labor of the weapon of concerted refusal to work as a means of persuading or coercing compliance with the working men’s demands 4. the contention advanced by the workers that although the work ceases, the employment relation is deemed to continue albeit in a state of belligerent suspension

5. there is work stoppage, which stoppage is temporary 6. the work stoppage is done through the concerted action of the employees 7. the striking group is a legitimate labor organization, and in case of bargaining deadlock, is the employees’ sole bargaining representative.  TESTS IN DETERMINING THE LEGALITY OF A STRIKE: 1. Purpose Test 2. Compliance with Procedural and substantive requirements of law 3. Means employed test 1. PURPOSE TEST - The strike must be due to either - bargaining deadlock and/or - unfair labor practice. 2. COMPLIANCE WITH PROCEDURAL & SUBSTANTIVE REQUIREMENTS OF LAW to wit (a-d): a. notice of strike b. 30/15-day cooling-off period before 7-day strike ban.

the intended date of actual strike subject to the

COOLING –OFF PERIOD - that period of time given the NCMB to mediate and conciliate the parties.  It is that span of time allotted by law for the parties to settle theirdisputes in a peaceful manner, before staging a strike or lockout. c. strike vote STRIKE VOTE - a requirement wherein the decision to declare a strike must be: 1. approved by a MAJORITY of the total union membership in the bargaining unit concerned [not of the whole bargaining unit], 2. obtained by SECRET BALLOT in MEETINGS OR REFERENDA called for the purpose. PURPOSE OF A STRIKE VOTE: - to ensure that the intended strike is a majority decision  The report on the strike vote must be submitted to the DOLE at least 7 days before the intended strike subject to the cooling-off period.

d. 7-day strike ban 7-DAY STRIKE BAN – it is the 7 day waiting period before the date of the purported strike [within which the union intending to conduct a strike must at least submit a report to the Department as to the result of the strike vote] intended to give the Department an opportunity TO VERIFY whether the projected strike really carries the imprimatur of the majority of the union members in addition to the cooling off period before actual strike. 3. MEANS EMPLOYED TEST-A strike may be legal at its inception but eventually be declared illegal if the strike is accompanied by violence which violence is widespread, pervasive and adopted as a matter of policy and not merely violence which is sporadic which normally occur in a strike area [see prohibited activities under art. 264]. NOTE: The 3 tests must concur. Non-compliance with any of the aforementioned requisites renders the strike illegal.

 EFFECT OF GOOD FAITH OF STRIKERS ON LEGALITY OF STRIKE - A strike may be considered legal where the union believed that the company committed ULP and the circumstances warranted such belief in good faith, although subsequently such allegations of ULP are found out as not true. (Bacus vs. Ople)  TOTALITY DOCTRINE - the culpability of an employer’s remarks are to be evaluated not only on the basis of their implicit implications but are to be appraised against the background of and in conjunction with collateral circumstances. Under this “doctrine” expressions of opinion by an employer which, though innocent in themselves, frequently were held to be culpable because: a. of the circumstances under which they were uttered b. the history of the particular employer’s labor relations of anti-union bias or c. because of their connection with an established collateral plan of coercion or interference. WHEN CAN THE SEC. OF LABOR ASSUME JURISDICTION OVER A STRIKE? 1.there exists a labor dispute causing or likely to cause a strike or lockout in a INDUSTRY INDISPENSABLE TO THE NATIONAL INTEREST, 2.the Secretary of Labor and Employment may: a. decide it, or b. certify the same to the NLRC for COMPULSORY ARBITRATION. NOTE: What constitutes indispensable industry is based solely upon the discretion of the Secretary of Labor.  EFFECTS OF THE ASSUMPTION OF JURISDICTION OF THE SECRETARY 1. AUTOMATICALLY ENJOINS the intended or impending strike or lockout as specified in the assumption or certification order; 2. if one has already taken place at the time of assumption or certification, all striking or locked-out employees shall IMMEDIATELY RETURN TO WORK; and 3. the employer shall immediately resume operations and READMIT ALL WORKERS under the same terms and conditions prevailing before the strike or lockout. 

A motion for reconsideration does not suspend the effects as the assumption order is immediately executory.

 ISSUES THAT THE SECRETARY OF LABOR CAN RESOLVE WHEN HE ASSUMES JURISDICTION OVER A LABOR DISPUTE: c.

Only issues submitted to the Secretary may be resolved by him. (PAL vs. Sec. of Labor, 23 January 1991).

d.

Issues submitted to the Secretary for resolution and such issues involved in the labor dispute itself. (St. Scholastica’s College vs. Torres; 29 June 1992)

e.

Secretary of Labor may subsume pending labor cases before Labor Arbiters which are involved in the dispute and decide even issues falling under the exclusive and original jurisdiction of labor arbiters such as the declaration of legality or illegality of strike. (Int’l Pharmaceuticals vs. Sec of Labor; 09 January 1992).

f.

Power of Sec. of Labor is plenary and discretionary. (St. Luke’s Medical Center vs. Torres; 29 June 1993; reiterated in PAL vs. Confesor; 10 March 1994).

IN CASE THE STRIKE IS DECLARED LEGAL, ARE THE STRIKERS ENTITLED TO STRIKE DURATION PAY? GENERAL RULE: Strikers are not entitled to their wages during the period of a strike, even if the strike is legal. EXCEPTIONS: 1.

In case of a ULP STRIKE, in the discretion of the authority deciding the case [see table for more distinction bet. Economic and ULP strike]

2.

Where the strikers VOLUNTARILY AND UNCONDITIONALLY OFFERED TO RETURN TO WORK, but the employer refused to accept the offer [e.g. of an “unconditional offer”: “we will return tomorrow” and NOT “willing to return provided]



They are entitled to backwages from the date the offer was made

3. Where there is RETURN-TO-WORK ORDER and the -

employees are discriminated against.

They are entitled to backwages from the date of discrimination.

 RULE ON REINSTATEMENT OF STRIKING WORKERS: GENERAL RULE : Striking employees are entitled to reinstatement, regardless of whether or not the strike was the consequence of the employer’s ULP REASON: because while out on strike, the strikers are not considered to have abandoned their employment, but rather have only ceased from their labor. 

The declaration of a strike is NOT a renunciation of employment relation.

EXCEPTIONS - The following strikers are NOT entitled to reinstatement: 1. Union officers who knowingly participate in an illegal strike; and 2. any striker/union member who knowingly participates in the commission of illegal acts during the strike. 

Those union members who joined an illegal strike but have not committed any illegal act shall be reinstated but without any backwages.

 RULE IN STRIKES IN HOSPITALS 1. It shall be the duty of striking employees or locking-out employer to provide and maintain an effective SKELETAL WORKFORCE of medical and other health personnel for the duration of the strike or lockout. 2. SECRETARY OF LABOR MAY IMMEDIATELY ASSUME JURISDICTION WITHIN 24 HOURS FROM KNOWLEDGE of the occurrence of such strike or lock-out or certify it to the Commission for compulsory arbitration.  ART. 264. PROHIBITED ACTIVITIES  LABOR ORGANIZATIONS 1. No labor organization or employer shall declare a strike or lockout

 without first having bargained collectively in accordance with Title VII of this Book or 

without first having filed the notice required in Art. 263 or

 without the necessary strike or lockout vote first having been obtained and reported to the Department. NO strike or lockout shall be declared: a. AFTER assumption of jurisdiction by the President or the Secretary or b. AFTER certification or submission of the dispute to compulsory or voluntary arbitration or c. DURING the pendency of cases involving the same grounds for the strike or lockout.  THIRD PERSONS 2. NO person [3rd persons] all obstruct, impede or interfere with by force, violence, coercion, threats or intimidation  any peaceful picketing by employees 

during any labor controversy or in the exercise of the right of selfor collective bargaining or



shall aid or abet such obstruction or interference.

organization

 EMPLOYERS 3.

NO employer shall use or employ any STRIKE-BREAKER nor shall any person be employed as a strikebreaker. PUBLIC OFFICIAL OR EMPLOYEE

4.

NO public official or employee, including officers and personnel of the New Armed Forces of the Philippines of the Integrated National Police, or armed persons, 

shall bring in, introduce or escort in any manner, any individual who seeks to replace strikes in entering or leaving the premises of a strike area, or work in place of the strikers.



The police force shall keep out of the picket lines unless actual violence or other criminal acts occur therein:

Provided, That nothing herein shall be interpreted to prevent any public officers from taking any measure necessary to: a. maintain peace and order, b. protect life and property, and/or c. enforce the law and legal order.

 PERSONS ENGAGED IN PICKETING NO person engaged in PICKETING shall: a. commit any act of violence, coercion or

intimidation or

b. obstruct the free ingress to or egress from the employer’s premises for lawful purposes,or c. obstruct public thoroughfares  ART. 265. IMPROVED OFFER vs. REDUCED OFFER BALLOTING IMPROVED OFFER BALLOTING 1. a referendum conducted by the NCMB on or before the 30th day of the strike, for the purpose of determining whether or not the improved offer of the employer is acceptable to the union members.

PURPOSE 2. to determining whether or not the improved offer of the EMPLOYER is acceptable to the union members.  to ascertain the real sentiment of the silent majority of the union members on strike.

PERIOD OF FILING 3. on or before the 30th day of the strike

REDUCED OFFER BALLOTING 1. a referendum conducted by the NCMB for the purpose of determining whether or not the reduced offer of the union is acceptable to the board of directors, trustees or partners. 2. to determining whether or not the improved offer of the UNION is acceptable to the union members. to ascertain the real sentiment of the silent majority of the union members on strike. 3. on or before the 30th day of the lockout

LIMITATION 4. applies economic (deadlock)



only to strikes

4. applies only to economic strikes-deadlock in bargaining (lockout)

ART. 266. ARREST AND DETENTION

 General rule is that a police officer cannot arrest or detain a union member for union

activities without previous consultations with the Secretary of Labor EXCEPT on grounds of: a. national security b.

public peace

c.

commission of a crime

BOOK SIX POST EMPLOYMENT TITLE I TERMINATION OF EMPLOYMENT ART. 279. SECURITY OF TENURE  SECURITY OF TENURE - the constitutional right granted the employee, that the employer shall not terminate the services of an employee except for just cause or when authorized by law. RELIEFS AVAILABLE TO AN ILLEGALLY DISMISSED EMPLOYEE: 

A. REINSTATEMENT - Restoration of the employee to the state from which he has been unjustly removed or separated without loss of seniority rights and other privileges. 1. 2.

 FORMS OF REINSTATEMENT: ACTUAL OR PHYSICAL REINSTATEMENT - the employee shall be admitted back to work PAYROLL REINSTATEMENT - the employee is merely reinstated in the payroll. May a court order the reinstatement of a dismissed employee even if the prayer of the complaint did not include such relief? YES. So long as there is a finding that the employee was illegally dismissed, the court can order the reinstatement of an employee even if the complaint does not include a prayer for reinstatement, unless, of course, the employee has waived his right to reinstatement. By law, an employee who is unjustly dismissed is entitled to reinstatement, among others. The mere fact that the complaint did not pray for reinstatement will not prejudice the employee, because technicalities of law and procedure are frowned upon in labor proceedings (General Baptist Bible College v. NLRC; 219 SCRA 549). What happens if there is an order of reinstatement but the position is no longer available?

The employee should be given a SUBSTANTIALLY EQUIVALENT POSITION. If NO SUBSTANTIALLY EQUIVALENT POSITION IS AVAILABLE, reinstatement should not be ordered because that would in effect compel the employer to do the impossible. In such a situation, the employee should merely be given SEPARATION PAY CONSISTING OF ONE MONTH SALARY FOR EVERY YEAR OF SERVICE (1:1).  CIRCUMSTANCES WHEN COMPANY MAY NOT REINSTATE DESPITE ORDER OF REINSTATEMENT 1. TRANSFER OF BUSINESS OWNERSHIP -There is no law requiring a purchasing corporation to absorb the employees of the selling corporation. A fortiori, reinstatement of unjustly dismissed employees CANNOT be enforced against the new owner UNLESS there is an express agreement on the assumption of liabilities by the purchasing corporation; 2. When reinstatement is rendered IMPOSSIBLE due to the abolition of the position; 3. When the business has CLOSED DOWN; 4. PHYSICAL INCAPACITY of the employee; and 5. DOCTRINE OF STRAINED RELATIONS - When the employer can no longer trust the employee and vice-versa, reinstatement could not effectively serve as a remedy. This doctrine only applies only to positions which require trust and confidence - Under the circumstances where the employment relationship has become so strained to preclude a harmonious working relationship, and that all hopes at reconciliation are nil after reinstatement, it would be more beneficial to accord the employee backwages and separation pay. B. BACKWAGES – the relief given to an employee to compensate him for lost earnings during the period of his dismissal.  PERIOD COVERED BY THE PAYMENT OF BACKWAGES - Backwages shall cover the period from the date of dismissal of the employee up to the date of actual reinstatement  HOW COMPUTED - Under existing law, backwages is computed from the time of the illegal dismissal up to time of actual reinstatement.  INCLUDED IN THE COMPUTATION OF BACKWAGES 1. transportation and emergency allowances 2. vacation or service incentive leave and sick leave 3. 13th month pay. NOTE: facilities such as uniforms, shoes, helmets and ponchos should NOT be included in the computation of backwages. REASON: said items are given free, to be used only during official tour of duty not for private or personal use.  CIRCUMSTANCES THAT PREVENT AWARD OF BACKWAGES: 1. death of the employee 2. physical and mental incapacity 3. business reverses 4. closure of business 5. reinstatement of dismissed employee confinement in jail Which takes precedence in conflicts arising between employer’s MANAGEMENT PREROGATIVE and the employees’ right to security of tenure? The employee’s right to security of tenure. Thus, an employer’s management prerogative includes the right to terminate the services of the employee but this management

prerogative is limited by the Labor Code which provides that the employer can terminate an employee only for a just cause or when authorized by law. This limitation is because no less than the constitution recognizes and guarantees employee’s right to security of tenure. (Art. 279, Labor Code; Art. XIII, Sec. 3, Constitution)  ART. 280. REGULAR AND CASUAL EMPLOYMENT REGULAR EMPLOYMENT - one wherein an employee is engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer. - He is a regular employee at the point of hiring. Test of regularity: nature of employment. CASUAL EMPLOYMENT – one wherein an employee is engaged to perform activities which are not necessary or desirable in the usual trade or business of the employer. - becomes a regular employee after one (1) year of service. REGULAR EMPLOYEE VS. PROJECT EMPLOYEE

PROJECT EMPLOYEE

REGULAR EMPLOYEE

A project employee is one whose employment is fixed for a specific project or undertaking the completion of which has been determined at the time of the engagement of the employee. (See Art. 280 LC)

A regular employee is one engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer

 TEMPORARY EMPLOYMENT OR EMPLOYMENT FOR A FIXED SPECIFIC PERIOD - one wherein an employee is engaged to work on a specific project or undertaking which is usually necessary or desirable in the usual business or trade of the employer, the completion of which has been determined at the time of the engagement of the employee. - He does not become a regular employee. The employment is coterminous with the specific period.  SEASONAL EMPLOYMENT - one wherein an employee is engaged to work during a particular season on an activity that is usually necessary or desirable in the usual business or trade of the employer.  Pakiao employees are considered employees as long as the employer exercises control over the means by which such workers are to perform their work. 

Employee is considered an regular employee insofar as the season to which he was employed is concerned. - during the off-season his employment is merely suspended not terminated (Phil. Tobacco Flue Curring and Drying Corp. vs. NLRC).

 PROBATIONARY PERIOD OF EMPLOYMENT - the period needed to determine the fitness for the job, i .e., the time needed to learn the job.

It is the period during which the employer may determine if the employee is qualified for possible inclusion in the regular force. PURPOSE: To afford the employer an opportunity to observe the fitness of a probationary employee at work. NOTE:The standard which the probationary employee is to meet must be made known by the employer to the employee at the time of engagement. The services of probationary employees may be terminated for the same causes as in the case of regular employee, except that there is an additional ground – failure to meet the standard.  LIMITATIONS ON THE EMPLOYER’S POWER TO TERMINATE A PROBATIONARY EMPLOYMENT CONTRACT: 1. the power must be exercised in accordance with the specific requirements of the contract [COMPLIANCE WITH SPECIFIC REQUIREMENTS]; 2.if a particular time is prescribed, the termination must be within such time and if formal notice is required, then that form must be used [WITHIN PARTICULAR PRESCRIBED TIME]; 3.the employer’s dissatisfaction must be real and in good faith, not feigned so as to circumvent the contract or the law [DISSATISFACTION—REAL AND IN GOOD FAITH]; and 4.there must BE NO UNLAWFUL DISCRIMINATION in the dismissal. GENERAL RULE: Probationary employment shall not exceed six months from the date the employee started working. EXCEPTIONS: 1. when it is covered by an apprenticeship agreement stipulating a longer period; or 2. when the parties to an employment contract agree otherwise, such as when the same is established by company policy or when the same is required by the nature of the work to be performed by the employee  EFFECT IF PROBATIONARY EMPLOYEE IS ALLOWED TO WORK BEYOND 6 MONTHS If the probationary employee is allowed to work beyond the period of 6 months or the agreed probationary period, said employee becomes a regular employee by operation of law. Under the Labor Code, “an employee who is allowed to work after a probationary period shall be considered a regular employee.” (Art. 281.)  ART. 282. TERMINATION BY EMPLOYER  SECURITY OF TENURE - An employer CANNOT terminate the services of an employee EXCEPT for a just cause or when authorized by law.  GUIDELINES TO DETERMINE THE VALIDITY OF TERMINATION: 1. Gravity of the offense 2. Position occupied by the employee 3. Degree of damage to the employer 4. Previous infractions of the same offense 5. Length of service A. JUST CAUSES [MaNaBaCA]: 1. Serious MISCONDUCT OR WILLFUL DISOBEDIENCE by the employee of the lawful orders of his employer or representative in connection with his work;  Misconduct- transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error in judgment. (Dept. of Labor Manual, Sec. 4353.01) 2. Gross and habitual NEGLECT by the employee of his duties; (Repeated absenteeism and tardiness)

3. FRAUD OR WILLFUL BREACH by the employee of the trust reposed in him by his employer or duly organized representative  Fraud must be committed against the employer or his representative and in connection with the employee’s work. ((Dept. of Labor Manual, Sec. 4353.01 [3]) 4. Commission of a CRIME OR OFFENSE BY THE EMPLOYEE AGAINST THE PERSON OF HIS EMPLOYER or any immediate member of his family or his duly authorized representative; and  Conviction or prosecution is not required. 5. Other causes ANALOGOUS to the foregoing.  A cause must be due to the voluntary or willful act or omission of the employee. (Nadura v. Benguet Consolidated; G.R. No. L-17780)  DUE PROCESS TO BE OBSERVED BY THE EMPLOYER - For termination of the employment based on the any of the just causes for termination, the requirements of due process that an employer must comply with are: (TWIN NOTICES) 1. Written NOTICE should be served to the employee specifying the ground or grounds for termination and giving the said employee reasonable opportunity within which to explain; 2. A HEARING OR CONFERENCE should be held during which the employee concerned, with the assistance of counsel, if the employee so desires, is given the opportunity to respond to the charge, present his evidence and present the evidence presented against him; 3. A WRITTEN NOTICE OF TERMINATION, if termination is the decision of the employer, should be served on the employee indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination.  For termination of employment based on authorized causes, the requirements of due process shall be deemed complied with upon service of a written notice to the employee and the appropriate Regional office of the Department of Labor and employment at least thirty days before the effectivity of the termination specifying the grounds for termination. NOTE: Under the so-called WENPHIL DOCTRINE if the services of the employee was terminated due to a just or authorized cause but the affected employee’s right to due process has been violated, the dismissal is legal but the employee is entitled to damages by way of indemnification for the violation of the right. 

SERRANO vs. ISETANN et. al. abandoned the WENPHIL DOCTRINE and ruled that if the employee is dismissed under just or authorized cause but the affected employee’s right to due process has been violated, his dismissal becomes ineffectual. Therefore, the employee is entitled to backwages from the time he was dismissed until the determination of the justness of the cause of the dismissal.



AGABON vs. NLRC (Nov. 17, 2004) abandoned the Serrano doctrine and REINSTATED THE WENPHIL DOCTRINE. The sanctions, however must be stiffer than that imposed in Wenphil.

PREVENTIVE SUSPENSION – when there is an imminent threat to the lives and properties of the employer, his family and representatives as well as the offender’s co-workers by the continued service of the employee then he may be placed under preventive suspension pending his investigation, leading to termination.

 -

preventive suspension should not last for more than thirty (30) days. The employee should be made to resume his work after 30 days.

it can be extended provided the employee’s wages are paid after the 30 day period.  ARTS. 283-284. B. AUTHORIZED CAUSES OF TERMINATION BY THE EMPLOYER:

1. installation of labor-saving devices (AUTOMATION)

2. REDUNDANCY (superfluity in the performance of a particular work) 

redundancy, for purposes of the Labor Code, exists where the services of an employee are in excess of what is reasonably demanded by the actual requirements of the enterprise. (Wishire File Co. Inc. vs. NLRC)



Reorganization as a cost-saving device is acknowledged by jurisprudence. An employer is not precluded from adopting a new policy conducive to a more economical and effective management, and the law does not require that the employer should be suffering financial losses before he can terminate the services of the employee on the ground of redundancy (DOLE PHILIPPINES, INC et al., vs. NATIONAL LABOR RELATIONS COMMISSION et al.)

3. RETRENCHMENT to prevent losses (there is excess of employees and employer wants to prevent financial losses) CONDITIONS UNDER WHICH AN EMPLOYER MAY RETRENCH: (a) substantial losses which are not merely de minimis in extent; (b) imminence of such substantial losses; (c) retrenchment would effectively prevent the expected and additional losses; (d) the alleged losses and expected losses must be proven by sufficient and convincing evidence. (NDC-GUTHRIE PLANTATIONS, INC., vs. NATIONAL LABOR RELATIONS COMMISSION, ET. AL) 4. closing or CESSATION OF OPERATION of the establishment or undertaking UNLESS the closing is for the purpose of circumventing the provisions of the Labor Code. 5. INSTALLATION of labor saving devices(Automation, Robotics) 6. DISEASE a. the disease is incurable within 6 months and the continued employment of the employee is prohibited by law or prejudicial to his health as well as to the health of his co-employees b. with a certification from public heath officer that the disease is incurable within 6 months despite due medication and treatment.  Before an employer could dismiss an employee based on a disease, Section 8 of Rule 1, Book VI of the Omnibus Rules Implementing the Labor Code requires a certification by a competent public health authority that the disease is of such a nature or at such stage that

it cannot be cured within a period of 6 months even with proper medical treatment. (Cathay Pacific Airways vs. NLRC and Martha Singson) 

DISCRIMINATION IN ANY FORM FROM PRE-EMPLOYMENT TO POST-EMPLOYMENT, INCLUDING HIRING, PROMOTION OR ASSIGNMENT, BASED ON THE ACTUAL, PERCEIVED OR SUSPECTED HIV STATUS OF AN INDIVIDUAL IS PROHIBITED. TERMINATION FROM WORK ON THE SOLE BASIS OF ACTUAL, PERCEIVED OR SUSPECTED HIV STATUS IS DEEMED UNLAWFUL. (SEC. 35, RA 8504, HIV/AIDS LAW)

CAUSE OF TERMINATION Automation

Redundancy

Retrenchment

Closures or cessation of operations not due to serious business losses or financial reverses

Disease

SEPARATION PAY Equivalent to at least one month pay or at least one month pay for every year of service, whichever is higher Equivalent to at least one month pay or at least one month pay for every year of service, whichever is higher Equivalent to one month pay or at least one-half month pay for every year of service Equivalent to one month pay or at least one-half month pay for every year of service (If due to severe financial losses, no separation pay due.) Equivalent to at least one-month salary or to ½ month salary for every year of service, whichever is greater, a fraction of at least 6 months shall be considered one (1) whole year.

NOTE: ARTICLE 283 governs the grant of separation benefits ‘in case of closures or cessation of operation’ of business establishments NOT due to serious business losses or cessation of operation [North Davao Mining Corp. vs. NLRC, et al]. Therefore, the employee is not entitled to such benefit if the closure was due to SERIOUS BUSINESS LOSSES.  When termination of employment is brought by the failure of an employee to meet the standards of the employer in case of probationary employment, it shall be sufficient that a written notice is served the employee within a reasonable time from the effective date of termination.

 When termination is brought about by the completion of the contract or phase thereof, no prior notice is required

 ART. 285. TERMINATION BY EMPLOYEE TERMINATION BY THE EMPLOYEE: a. WITHOUT JUST CAUSE- by serving a WRITTEN NOTICE on the employer at least one month in advance. The employer upon whom no such notice was served may hold the employee liable for damages. b. WITH JUST CAUSE - An employee may put an end to establish WITHOUT SERVING ANY NOTICE on the employer for any of the following just causes [SUCA]: 1. SERIOUS INSULT by the employer or his representative on the hour and person of the employee; 2. Inhuman and UNBEARABLE TREATMENT accorded the employee by the employer or his representative; 3. Commission of a CRIME OR OFFENSE by the employer or his representative against the person of the employee or any of the immediate members of his family; and 4. Other causes ANALOGOUS to any of the foregoing.  ART. 287. RETIREMENT  RETIREMENT AGE - The age of retirement is that specified in the CBA or in the employment contract. In the absence of a retirement plan or agreement providing for retirement benefits of employees in an establishment, an employee upon reaching the age of 60 years or more, but not beyond 65 years which is hereby declared as the compulsory retirement age, who has served at least 5 years in said establishment.  The rule is different with respect to underground mining employees whose optional retirement age is 50-60 provided they have at least served for a period of 5 years (Art. 287 as amended by RA 8558). BENEFITSA retiree is entitled to a retirement pay equivalent to at least ½ month salary for every year of service, a fraction of at least six (6) months being considered as one whole year. Unless the parties provide for broader inclusions, the term “one half (1/2) month salary” shall mean:  15 days plus 1/12 of the 13th month pay and  the cash equivalent of NOT more than 5 days of service incentive leaves. (22.5 days per year of service) Under Section 26, R.A. No. 4670, otherwise known as the Magna Carta for Public School Teachers, public school teachers having fulfilled the age and service requirements of the applicable retirement laws shall be given ONE RANGE SALARY RAISE upon retirement, which shall be the basis of the computation of the lump sum of the retirement pay and the monthly benefit thereafter.

NOTE: Exempted from the payment of retirement pay are retail, service and agricultural establishments or operations employing NOT more than ten (10) employees or workers. Age 60-65

Retirement Optional but the employee must have served at least 5 years

65

Compulsory (no need for five years of service)

BOOK SEVEN TRANSITORY AND FINAL PROVISIONS

PRESCRIPTION OF OFFENSES AND CLAIMS

TITLE II

 ART. 291. MONEY CLAIMS  PERIODS OF PRESCRIPTION Cause MONEY CLAIMS ULP ILLEGAL DISMISSAL REINSTA TEMENT

Period of Prescription 3 years from the accrual of the causes of action 1 year from the accrual of the cause of action 4 years from the accrual of the cause of action 4 years

NOTE: The period of prescription mentioned under Article 292 of the Labor Code refers to and is limited to money claims, all other cases of injury to rights of a workingman being governed by the Civil Code. Hence, REINSTATEMENT prescribes in 4 years. VENUE: The Regional Arbitration Branch where the workplace is located (NLRC Rules of Procedure.

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