Handout 001 Pre-Week Simplified Reader TAKE NOTE OF THE UPDATES
SURVIVAL NOTES IN LABOR LAW1 Atty. Benedict G. Kato Labor Arbiter, Professor of Law, Bar Reviewer, MCLE Lecturer I PRINCIPLES AND POSTULATES The Full Protection Clause
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Protection Outside Art. 136, PD 442 (Star Paper Corp. vs. Simbol, et al., April 12, 2006). No Couples Policy: “Employees of this company shall not marry one another.” (1) “If they do, the wife Art. 136 wife shall resign or shall shall be deemed resigned”. This policy violates Art. as it amounts to disparate treatment) by reason of marriage (direct discrimination; hence, the policy is void. (2) “If they do, one of them shall resign or shall be deemed not single out the wife; hence, it is valid under Art. 136 for resigned.” This policy does not being facially neutral. But it is void under the Full Protection Clause for its disparate impact (indirect discrimination).
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Protection Outside Art. 291, PD 442 ( Accessories Accessories Specialist, Inc. vs. Alabanza, July 23, 2008). Pursuant to Art. 291, money claims prescribe in 3 years. An unpaid employee dies on his claim after 5 years years of promises of payment. If the claim is brought after 3 years, it is not prescribed under the Principle of Promissory Estoppel . Elements: (1) employer makes a promise which induces belief or inaction; (2) employee relies on the promise; and (3) his reliance on the promise is prejudicial to him.
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Protection Outside POEA-Approved Contract. (Datuman vs. First Cosmopolitan Manpower & Promotion Services, Inc., Nov. 14, 2008). Under POEA rules, a recruiter’s solidary liability with his foreign principal arises from violations of the terms of the POEAapproved contract. If the contract sued upon is a second contract executed abroad without the knowledge and consent of the recruiter, the latter is not liable. Exception: the second contract is a continuing violation of the POEA-approved contract because the OFW is forced forced to execute it with another employer to legalize her continuing stay overseas as her first employer employer has violated the terms terms of her first contract.
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Protection Outside Philippine Territory (Sim vs. NLRC, Oct. 2, 2007). Jurisdiction over the person of a foreign employer employer is acquired thru service of summons on his local agent. If no agent, acquisition of jurisdiction is impossible. Exception: both employee and employer are Filipino nationals (Corazon Sim & Equitable Bank) entering into an employment contract abroad (Italy). (Italy). In the event of an illegal dismissal, Sec. 10 of RA 8042, as amended, allows the employee to sue before the Labor Arbiter. By virtue of said provision, Philippine Labor Relations Law has become extra-territorial. Therefore, the employer cannot interpose lex ex contractu, or law of the place of the contract.
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CAVEAT: For mature readers only. The memory tools are unconventional. unconventional.
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Protection Outside the Substantial Evidence Rule (The Cate Case/GSIS vs. CA, Jan. 28, 2008). To be compensable, a disability arising from disease must be work-related, work-relat ed, i.e., i.e., the disease is occupational in nature. nature. It is occupational occupational if it is a listed listed disease. If not listed, like Osteoblastic Osteosarcoma (not in Annex “A”, Employees Compensation Act ) ) , the resulting disability would not be compensable. Exception: the GSIS member can adduce substantial evidence to prove work-connection. Exception to the exception: if even medical science cannot explain the origin of Osteosarcoma, the condition to show work-connection with substantial evidence is deemed not imposed, In fact, the condition is void. Note: Full protection means there is protection outside (1) statutory law (Star Paper case & Alabanza case); (2) employment contract (Datuman case); (3) law of the place of execution (Sim case); and (4) substantial evidence rule rule (Cate case).
Preferential Use of Voluntary Modes Jurisdiction by Stipulation (Vivero vs. CA, Oct. 24, 2000)
Jurisdiction over the subject matter of a case is conferred by law, e.g., Art. 217, PD 442 (Jurisdiction of the Labor Arbiter). Parties are not at liberty to stipulate stipulate where to litigate. litigate. Exception: Parties to a CBA can stipulate to bring cases listed under Art. 217 to voluntary arbitration. However, is must must be by express stipulation. This is allowed by Sec. Sec. 3, Art. XIII of the Constitution which requires preferential use of voluntary modes of settling labor disputes. UPDATE: RA 10396 – Pre-litigation conference (SEnA conference) is a pre-requisite for filing of labor complaints. Labor agencies shall not accept complaints complaints unless the parties have undergone mediation. Just and Humane Conditions of Work
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Anti-Sexual Harassment Act (RA 7877) Background: Women had no right to work. In the rare instances they were given work, they had to answer with their dignity in a quid pro quo (I give, You give) relational set-up. (I give you work if you sleep with me, cum2 with me, etc...) RA 7877, which applies to both sexes, punishes this practice. Sexual harassment is committed: (1) in a WET env’t (work, education, training); (2) by Pastor TETE (pastors/priests, teachers, employers, trainors, employees) with MIA (moral ascendancy, influence or authority); (3) thru DRR 4 sexual favor (demand, request, requirement); (4) with promise of W – COER COER (in a work env’t: continuing employment, other considerations, employment, re-employment); or ET-GASHOS (in an education/training env’t: grade, allowance, scholarship, honors, other considerations, stipend); (5) where the DRR 4 sexual favor may either be ACCEPTED ACCEPTED or REJECTED; (6) provided, the rejection turns the WET env’t into a HOI env’t (ho stile, (7) as manifested by the victims’ offensive, intimidating); SCD (segregation, classification, or discrimination).
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Come pala.
Note: Acceptance of DRR is not a defense. What the law punishes is not the violation of the sexuality of the offended party but abuse by the offender of his MIA. Phil. Aeolus Automotive United Corp. vs. NLRC , April 28, 2000: Employer’s verbal acts: “I luv u, I mis u… mwah, mwah, mwah” Physical acts: tatz hir, tatz dr. Reaction: Rejection. Reaction to reaction: “If I have no space in your heart, you have no space in my office” PLUS dismissal. Guilty: WET became HOI. Atty. Susan Aquino vs. Justice Ernesto Acosta (CTA), April 2, 2002: Physical act: beso beso, nothing else more. WET did not become HOI. Exonerated with a simple admonition: “Nxt tym, b crcumspct. N do nt 4get 2 brsh ur teeth!” Erlinda Alcuizar vs. Judge Emmanuel Carpio (RTC Davao), Aug. 7, 2007, en banc: Physical acts: kissed stenographer, signalled to her to enter the CR to kiss inside; and gave her P500.00 - no more!. WET did not become HOI. Evidence: stenographer continued going inside the judge’s chamber. This was taken against her. Digitel vs. Mariquit Soriano, June 26, 2006 (The Digitel Sex Scandal) : Effect of delay on credibility of complaint. 11 months after resigning, following a superior’ act of poking her pussy3 with his finger and another superior’s act of pressing her body against his’ while dancing, Mariquit filed her complaint. Defense: Delay. Argument of Mariquit: The delay of Miss Cortez in the Phil. Aeolus Automotive Case ( supra ) was 4 years, yet it was not taken against her. Hers was 11 months only. SC: Mariquit’s case was different. In the case of Miss Cortez, she was still employed. So it was reasonable not to expect her to file her complaint while she was still employed; otherwise, she would have lost her job sooner than she did. In Mariquit’s case, she resigned; hence, she had nothing to protect anymore. Yet she incurred in delay. Note: When her pussy was being poked, Mariquit did not run or slap Mr. Go. When Mr. Go asked for a dance, she did not flee, although her pussy had been poked earlier. SC said this was against human experience. Harry Roque sued the SC before the UN for rendering judgment against the CEDAW. According to him (galit na naman si pogi), the SC based its judgment on stereotyped human experience whereas the CEDAW requires elimination of stereotyping. Note also: Mr. Go died while the criminal case against him was pending. Lesson: Poke not a pussy. When it meows, you die! Domingo vs. Rayala , Feb. 18, 2008 (The NLRC Sex Scandal): Evidence of DRR 4 Sexual Favor. Under the Three-fold Liability Rule , an act may result in 3 types of liabilities: administrative, civil and criminal. To establish these liabilities, these are the quanta of proof: substantial evidence, preponderance of evidence, and proof beyond reasonable doubt – following order of appearance. Rayala, who was before the SC to contest his dismissal for grave misconduct under Civil Service Law, cried: “Whr s d pruf beyond reasonable doubt of my DRR? I jst tatzd hr shldr n sed “may bf k n?”; “bkit laki2 balakang m?” Justice Nachura (ponente) answered: “Your case is administrative. I’m just looking for substantial evidence. Based on the totality of the circumstances, I find you liable for sexual harassment. That the work environment of Lotlot became hostile takes the place of DRR.”
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The Kasambahay Act (1) A kasambahay renders domestic work and says “HelLau GarCya” . (Helper, Laundry person, Gardener, Cook, Yaya) EXCEPT Foster (children under foster
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Legal term: citadel of virtue; Debatable term: private part.
(2)
(3)
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family arrangement who are given access to education plus allowance) and those engaged sporadically or _______. The “K” rights are “13 Sleeps with Orgs then Rest and Rest “, inter alia. (13th month pay, service incentive leave (SIL), self-organization, 8 hours daily rest, weekly rest period). Others: privacy, education, board & lodging, medical attendance, no privileged communication when suing employer & just & humane conditions (no massage). His/her hours of Work are: if 15 – 17 years old (law says below 18) - 8 Hours only (absolutely no extra work). If 18 & above - Not expressly provided. Note: If, as provided by the Kasambahay Act, the monthly pay is fixed at P2,500.00, or P2,000.00, or P1,000.00 – depending on place of work - then normal hours of work must also be fixed. Therefore, it is either 8 hours (Art. 83, PD 442 which is a special law) or 10 hours (Art. 1596, NCC which is a general law). Which prevails? You know what to do. But before doing what you are about to do, the first thing to do is to harmonize these laws. The Kasambahay Act provides that the parties shall agree on hours of work. Either this is the wisdom of the law or its accidental virtue. If the agreement is to fix normal hours of work at 8 hours/day then the P2,500.00, or P2,000.00, or P1,500.00 would be reasonable. If 10 hours, or more (but not in excess of 16 hours because the daily rest must not be less than 8 hours) then the pay must be increased. With this, there is no need for PDD 442 and NCC to quarrel.
RA 9231 Note: Under PD 442, (1) less than 15 cannot be employed except by parents or guardian , provided opportunity for schooling is not impaired; provided further that hours of work shall not exceed 4 hours on any given day and 20 hours a week; whereas, (2) 15-18 can be employed provided with DOLE supervision and child is not exposed to hazardous and deleterious work conditions; provided further that hours of work shall not exceed 8 hours on any given day and 40 hours a week. This said, why is Ryzza Mae, who is less than 15, employed by a juridical person such as GMA? RA 9231 allows it for public entertainment under these conditions, inter alia: DOLE permit; opportunity for schooling not impaired; cannot promote alcohol, cigarette, violence; cannot be employed underground, in high-rise buildings, under water; cannot produce dynamites , etc…
Due Process Clause & Equal Protection Clause 2009 Serrano Doctrine vs. RA 10022 (Operative Fact Doctrine vs. Raison d’etre ; Sec. 4(3), Art. VIII, Const’n; 2011 Yap vs. Thenamaris )
Sec. 10, RA 8042: In the event of an illegal pre-termination of an OFW contract, salaries for the un-worked portion of the contract must be paid. The money award shall either be (a) number of months x salary, or (b) 3 months salary x the number of years there are in the remaining months – whichever is lesser. What is wrong with the formula? In the 2009 Serrano case, the SC held that it violated the Due Process Clause and the Equal Protection Clause. How? As to the first, if letter (B) were awarded for the reason that the contract is at least 1 year ( 1999 Marsaman ruling), salaries for the excluded months will be taken away without rhyme or reason except that it is what RA 8042 provides – and nothing else more. Since salaries for those excluded months are property to the OFW, they are deemed taken without due process of law. As to the second, RA 8042 makes a distinction between OFWs with less than 1 year or contract and those with at least 1 year then
treats them differently as to amount of salaries. This is a classification. To be valid, it must serve a State interest. Under the Strict Judicial Scrutiny Test , a classification and the State interest it seeks to protect must have a necessary connection. In Serrano, the Solgen revealed that the purpose of the law was to minimize the legal injury suffered by recruiters/local agents who ended up dragged to court to answer for acts committed by their foregoing principals, over which they had no control. This was not State but private interest; hence, the classification was void. Serrano was a perfect ruling, except that Congress re-enacted the formula in 2010 when it passed RA 10022. Which prevails now, case law or statutory law? In 2011, the SC decided Yap vs. Thenamaris. It still applied the Serrano ruling. However, it cannot be said that the SC upheld the primacy of Serrano over RA 10022. Truth is, it was not aware of the new law because it was never pleaded. If Sec. 4(3), Art. VIII of the Constitution were applied, the only way the Serrano ruling can be undone is for the SC to render a contrary ruling in a decision rendered en banc. Congress cannot undo it by passing RA 10022. Meantime, two (2) theories present themselves for consideration, viz.: Operative Fact Doctrine and Raison d’etre. Under the first, the re-enacted formula is valid and will continue to produce legal effects until nullified, i.e., in a case similar to Serrano. Under the second, the reason for the existence of the Serrano ruling must be kept in view at all times, viz., the violation of the Due Process Clause and the Equal Protection Clause. Hence, what was void in 2009 is still void up to now. Obviously, the first favors recruiters, whereas the second favors OFWs. Advice: Wait for your instruction. If the examiner directs you to lawyer for the OFW, you apply Raison d’etre; otherwise, you apply the Operative Fact Doctrine. If he says “DECIDE”, you will surely earn credit regardless of your choice of theory – full credit if your answer has LLL (Law, Language & Logic). UPDATE: The “lesser amount rule” is void. Serrano Doctrine is revived ( Sameer Overseas Placement Agency, Inc. Joy Cabiles, G.R. No. 193652, 5 Aug. 2014).
Social Justice Clause (Catchphrases for Essay Questions)
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Meaning: “Social justice is the humanization of laws and equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated.” ( Calalang vs. Williams, Dec. 2, 1940)
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Postulate: The basis of labor law is police power; its purpose is social justice.
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Application: Pro Labor: Articles 4, 110, 106-109, 287, etc. (humanizing provisions of PD 442) Pro Employer - “Social authorizes neither oppression nor self-destruction of an employer.” Balanced Application: “Justice is for the deserving, to be dispensed in the light of the established facts and applicable law and doctrine.” CIVIL LAW PRINCIPLES
Principle of Abuse of Rights (Edgardo Eviota vs. CA, July 29, 2003). Application: The right to resign is one thing. It is quite another to exercise it in accordance with Art. 285, PD 442, by giving the required 30-day notice. Eviota omitted service of the required notice, abusing of his
right to resign (Art. 19, NCC). Besides omitting the required notice before joining his new employer, he uttered derogatory remarks against his first employer. Liable for civil damages. RTC has jurisdiction. Principle of Least Transmission of Rights (Gerlach vs. Reuters Ltd., Phil, Jan. 17, 2005) . Application: In the interpretation of a non-contributory retirement plan , where none of the provisions of the NCC on the interpretation of gratuitous contracts applies, the construction that will transmit the least rights and interests shall be adopted (Art. 1378, NCC). Theory of Imputed Knowledge (SUNACE Int’l Mgt Services, Inc. vs. NLRC , Jan. 25, 2006). Application: Knowledge of the agent is knowledge of his principal – not the other way around. The Necessitous Man Orchard Golf & Country Club vs. Francisco , March 18, 2013. Background: The operative fact in constructive dismissal is the employee’s act of quitting (Phil. Japan Active Corp. vs. NLRC, ), resigning ( ), foregoing with his job ( ), or ceasing to be employed ( ). The bottomline is selftermination because continued employment has been made impossible by the employer, or continued employment has become prejudicial to the worker who is left with no option except to self-terminate (resign, forego, cease) to avoid involuntary servitude. Note: In the Orchard case, the employee continued to report for work (although she was demoted) and to receive her salaries (although reduced). In other words, there was no complete severance of employer-employee relationship which is the touchstone of dismissal. However, the SC ruled that she was constructively dismissed. Why: ill-treated by her company which imposed on her suspension after suspension until she was finally demoted from the position of Club Accountant to accounts officer, she had no option except to continue working. She was a necessitous person. “Except to continue” is the exact opposite of “except to forego”. But the SC is always correct and, in the few instances it is wrong, it is still correct.
II EMPLOYER-EMPLOYEE RELATIONSHIP Tests 1. 2.
3. 4.
Control Test (CT). Question to ask “Who is the master of the alleged employee’s means and methods of performance?” Economic Reality Test (ERT). Question to ask “Is the alleged employee economically dependent on his alleged employer?” Contra-indications: he has other employers or principals (PDI case, 2006). Two-tier Test. The ERT is used to confirm CT. Ecclesiastical Affair Test. If the dispute arises from the relation between church and member (e.g. pastor), LA has jurisdiction if the dispute is an employer-employee affair (dismissal for a just cause under Art. 282, old). If the dispute is an ecclesiastical affair (e.g., suspension of the faculties of a priest for preaching that Mary Magdalene was Jesus’ GF) then LA has no jurisdiction. An ecclesiastical affair (as contrasted to employeremployee affair) has something to do with: faith, religious belief, dogma, governance of the faithful, ordination, or ex-communication ( Austria vs. NLRC). Note Art. 280 (desirable & necessary) is not a test of employer-employee relationship but of regularity of employment. ( Atok Big Wedge Mining Co. vs. Gison, Aug. 8, 2011 ). One may be engaged to perform work necessary and desirable but it does not follow that he
is an employee. He may be an independent contractor. In this connection, Art. 157 which requires employers to provide medical services does not require employment of doctors and nurses as regular employees. They may be engaged as contractual employees only ( Cinco ruling). Not employees: (a) PBA Referee; master of means and methods (Bernate vs. PBA, Sept. 14, 2011); (b) Masiador/, Sentenciador of cockfights; experts in their own right (Semblante, et al. vs. CA, Aug. 15, 2011). Characteristics (CRISI & I Relationship full of Questions) C R
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S I I
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Contractual (Art. 1700, NCC) Relation between Master & Servant (prerogative to adopt rules; can dismiss for insubordination under Art. 282) In personam (no successor employer, except: piercing the veil, instrumentality rule, express agreement) Shared-responsibility (Sec. 3, Art. XIII, Const’n) Impressed with public interest (correlate to Art. 263g) Inter-party relationship. Industrial peace cannot be achieved thru State compulsion. Hence, parties to a labor dispute must be left to themselves to resolve it with minimum State interference (Prof. Azucena). Question of fact. Labor tribunals determine its factual existence. Courts must respect and accord finality to their finings if based on substantial evidence. Question of law. Law determines when it exists. Parties to a contract (e.g. service agreement between a principal and job contractor) cannot stipulate against its existence.
III JURISDICTION A Jurisdictional Tests Reasonable Causal Connection Rule & Reference to Labor Law Rule. It is not enough that the issue born of the allegations of the complaint and relief prayed for has a reasonable causal connection to employer-employee relationship. For labor tribunals to have jurisdiction, said issue must be resolvable thru the application of the labor Code, other labor statutes or labor contracts. If other laws are needed to resolve it, the courts have jurisdiction. Relationship Test & Nature of Controversy Test. In terminations, the first question to ask is : Who are the disputants? Answer: (a) corporation & corporate officer (in general, RTC); (b) corporation and corporate employee (in general, LA ). You do not stop here. Second question to ask: What law is needed to resolve the issue born of the allegations of the complaint and relief sought? Answer: (a) corporate law (RTC); (b) Labor Law (Labor tribunal). Relationship Test & Ecclesiastical Affair Test , supra. NOTE: Rules on Immunity
1. GTZ v. CA, G.R. No. 152318, 16 April 2009 2. 3. Bar 2014 Forum Non Conveniens
B Interplay of Jurisdiction SOLE & BLR: Two Instances 1. SOLE to BLR. Inter-union disputes involving WACLIU (workers associations, chapters, locals & independent unions) and intra-union disputes get initiated before the DOLE RD. Appeal is to the BLR (Art. 226, PD 442). In Barles, et al. vs. Bitonio , June 16, 1999, the appeal was taken to the SOLE who transmitted it to the BLR. The appellant questioned the move as an abdication of appellate power in favor of an inferior body. The SC ruled that it was BLR which had appellate jurisdiction. 2. BLR to SOLE. Petitions for the cancellation of union CRs are initiated with the DOLE RD. Appeal from cancellation orders are taken to the BLR. In Heritage Hotel Mla vs. NUWHRAIN-HHMSC , Jan 12, 2011, the BLR Director inhibited because he used to be counsel for the respondent. The appeal was elevated to the SOLE who resolved it. No grave abuse. SOLE can resolve the appeal in the exercise of her power of control and supervision over the BLR. DOLE RD (Art. 128, PD 442) and LA (Art. 217, PD 442).
1 Under Art. 128, the RD may be ousted of his jurisdiction on two grounds: (a) cessation of employer-employee relationship, provided it takes place before he takes cognizance of the dispute; and (b) the employer raises issues which are supported by documents which were not considered in the course of summary inspection, although these were verifiable. The result of ouster is the transmittal of the case to the LA for reception of the ignored evidence via position paper, etc. On his own, the RD may also oust himself for lack of jurisdiction due to cessation of employer-employee relationship by issuing a referral order in favor of the LA’s jurisdiction. Note: The RD issued a referral order which the employee challenged before the SOLE who ruled that the RD had jurisdiction. When the case was transmitted back to the RD, the employer moved to dismiss on the ground of res judicata. Allegedly, the order was more than 10 days old; hence, it attained finality already. SC: a referral order is not a judgment on the merits; hence, it cannot ripen to res judicata. DOLE RD (Art. 128 & 129); LA (Art. 217) and NLRC (Arts. 218 & 223) 1 Appeals & Periods of Appeal. Appeals from the LA are taken to the NLRC within 10 days by (a) filing of appeal memo; (b) posting of appeal bond; and (c) payment of docket fee. Appeals from 129 decisions (P5K & below) are also taken to the NLRC by performing same acts within the shorter period of 5 days. Both 217 and 129 appeals are governed b y the same 2011 Rules of Procedure of the NLRC.
Appeals from 128 orders are taken to the SOLE within 10 days. 2 Motion to Reduce Appeal Bond. Under the NLRC Rules, the appellant employer has the remedy of filing a motion to reduce appeal bond, subject to the posting of a reasonable accompanying bond. This remedy is available for appeals taken from 217 and 129 but not 128 because there is no equivalent remedy under the rules of the DOLE (Yanson vs. Hon. Secretary, Feb. 11, 2008). 3 Employer-employee relationship. The determination of the factual existence of employer-employee relationship is co- extensive with the RD’s /SOLE expanded visitorial power. Therefore, the view that the RD makes a determination in a preliminary manner only while the LA/ NLRC makes the final determination must be reviewed. (SC on MR in Bombo Radyo case, March 6, 2012)
SOLE (Art. 263,g) and NLRC (Art. 218). 1 In national interest cases, or HEAT d WET BEDS 5R cases (hospital, energy, air traffic control, transportation, water production, export, tire production, banking, education, drugs & pharmaceuticals, support services, 5-star hotels, roof production), the SOLE can assume jurisdiction. Either (a) he resolves the dispute himself; or (b) certifies it to the NLRC for compulsory arbitration. If certified to the NLRC, the case cannot be dismissed by the NLRC on the ground that it does not involve a national interest. Only the SOLE is given the prerogative to make a determination because Art. 263(g) uses t he term “if in his opinion”. The opinion of the NLRC is irrelevant.
2 If SOLE finds that there is employer-employee relationship, it takes cognizance of the matter to the exclusion of the NLRC. The SOLE would have no jurisdiction only if employer-employee relationship has already been terminated, or it appears upon review that no employer-employee relationship existed at all. ( People’s Broadcasting Service vs. Sec. of the DOLE , March 6, 2012). LA (Art. 217) and VA (Arts. 261 & 262).
1 Conferment of Jurisdiction. The rule is law vests jurisdiction over the subject matter of a case. Parties cannot stipulate where to litigate. The LA’s original and ex clusive jurisdiction is defined by Art. 217. But by express stipulation in a CBA, his cases can be brought to the VA (Art. 262). This is valid under Sec. 3, Art. XIII of the Constitution which requires the preferential use of voluntary modes of settling labor disputes (Vivero ruling). 2 Acquisition of Jurisdiction. The LA acquires jurisdiction thru the filing of a verified complaint, subject to SEnA (single entry approach or mediation) as reinforced by RA 10396, March 14, 2013. The VA acquires jurisdiction as follows: (1) Both parties are willing to comply with their contractual obligation to go to the VA - thru a Submission Agreement; (2) one party is unwilling = thru service of a Notice to Arbitrate; (c) if both parties are unwilling, thru the appointment of a VA.
Note: Notice to Arbitrate. Only the exclusive bargaining representative (EBR) can serve it, not any union even if registered. Art. 255 which provides that, for purposes of collective bargaining, the workers shall be represented by the EBR but without prejudice to the right of a worker or group of workers to present their grievances to the employer at any time does not include the right of such group of workers to serve a notice to arbitrate (Tabigue, et al. vs. Int’l Copra Export Corp., Dec. 23, 2009).
RD and Med-Arbiter: Problems 1 Union A files a CE petition with the Med-Arb. Rival Union B moves to dismiss the petition on the ground that Union A submitted falsified registration documents for which reason its legal personality should be disregarded. This cannot be done as it constitutes a collateral attack. Only direct attacks are allowed (D.O. 40-03). Why? The RD is the office vested with the power to cancel CRs; hence, cancellation cannot be asked from the Med-Arb.
2 Its motion to dismiss denied, Union B goes to the RD for CR cancellation. It returns to the Med-Arb. with a motion to suspend the CE proceedings on the ground that its complaint for cancellation is a prejudicial question. Motion to suspend should be denied. No more prejudicial questions under D.O. 40-03 unlike under the Fortune Tobacco case. CE shall proceed subject to the outcome of the cancellation proceedings. If no cancellation, CBA negotiations will not be stopped also - but subject also to the outcome f the cancellation proceedings. If, finally, the RD issues an order of cancellation and it attains finality, the next move is to seek CBA deregistration with the RD. Note: RD has jurisdiction over: (1) CR cancellation; (2) CBA deregistration; (3) complaints/petitions involving WACLIU, supra. (BLR has jurisdiction over FINTCAM cases: federations, industry unions, national unions, trade unions & their chapters, affiliates and members) ; (4) 128 & 129 cases; and (5) complaints for violation of apprenticeship agreements that are first ventilated before the Plant Apprenticeship Committee (nonexhaustion of administrative remedies rule applies) .
C Updates on 2011 NLRC Rules of Procedure A, a seafarer, files a complaint for maximum disability benefits of Situationer 1. US$60,000.00 with the LA. LA grants the relief sought. The respondent manning agent takes appeal to the NLRC which affirms the LA’s decision. Likewise, it denies the appellant’s MR. Unless the CA issues a TRO, the NLRC decision will become final and executory, and judgment will be entered, after the lapse of 60 days (period for certiorari). The case will then be transmitted back to the LA for execution. Remedies: 1 Motion to Quash Writ of Execution. If denied, no appeal. The remedy is to petition for the nullification of the writ of execution under Rule XII, infra. 2
Petition under Rule XII, 2011 Rules of Procedure of the NLRC. A verified petition based on grave abuse of discretion , serious error/s, or any irregularity during the execution stage which, if not corrected, will cause serious and irreparable damage and injury to the petitioner must be filed in 10 days from receipt of order denying the motion to quash. From date of filing, the Sheriff cannot enforce judgment within the next 15 days. Thereafter, he can pursue execution, unless the NLRC issues a TRO. Note: Execution will not be stopped by mere filing of (a) a petition for certiorari with the CA; (b) a motion to quash with the LA; and (c) a petition for extraordinary remedy with the NLRC. A TRO is required. Situationer 2. Judgment is enforced due to non-issuance of a TRO. Later, the manning agent gets a favorable decision from the CA which attains finality because the seafarer is not interested in challenging the decision before the SC. After all, he has already received his US$60,000.00.
Remedy: File a motion for restitution with the LA (Sec. 18 , Rule XI, 2011 Rules). Do not run after the lawyer’s fees in the same motion because the LA has no jurisdiction over him. Serve him a demand letter. If he does not return his attorney’s fees, bring the matter to the IBP. (This will not be asked in the BAR).
IV EVIDENCE IN LABOR PROCEEDINGS A Substantial Evidence Rule 1. 2. 3.
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Vessel Logbook , its entries constitute substantial evidence. Company ID is evidence of employer-employee relationship and not just as security measure. Payroll sheets are not the best evidence of abandonment . Under the best evidence rule, the original document must be produced to prove its contents. So if the entries of the payroll sheets are not at issue then the invocation of the rule is misplaced. (Tegimenta Chemical Phil vs. Oco, Feb. 27, 2013). Affidavits cannot be trusted because the person preparing them reduces to writing what is just communicated to him, using his language. ( Eagle Ridge Golf and Country Club vs. Court of Appeals, et al., G.R. No. 178989, 18 March 2010). Take note, however, that Rule V of the 2011 Rules of Procedure of the NLRC requires testimonies to be reduced to affidavits and attached to position papers. Take note also of the Judicial Affidavit Rule. Affidavit of Assumption of Responsibility . A seafarer is not privy to it; hence, it does not bind him. The original manning agent is still solidarily liable to him even if another has fully assumed liability because of the undertaking of the original manning agent, as required by law, to be solidarily liable for all violations of the contract of the seafarer (Skippers United Pacific, Inc. vs. Maguad, et al., Aug. 15, 2006).
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Foreign Law must be proven as a fact; otherwise, it will be presumed to be the same as Philippine law. (EDI-STAFF BUILDERS INT’L, INC. vs. NLRC , Oct. 26, 2007: Presumed Identity Approach/Processual Presumption).
7.
Evidence from Instigation. Evidence even if procured thru instigation can be used against an erring employee because instigation is a defense only in criminal procceedings, not in labor proceedings (Roquero vs. PAL, April 22, 2003) Graphology. The testimony of a handwriting expert is not needed to establish serious misconduct because the erring employee’s liability is being determined in an administrative proceeding only where the quantum of proof required is substantial evidence only ( Mitsubishi vs. Simon, et al., April 16, 2008) Conspiracy. Conspiracy cannot be presumed. It should be established as clearly, positively and convincingly as the act itself (Sargasco Construction & Dev’t Corp. vs. NLRC, Feb. 9, 2010; Domingo vs. Rayala , March 2, 2008.)
8.
9,
B Three-fold Liability Rule & Totality of Circumstances Rule (Domingo vs. Rayala, Feb. 18, 2008) There was no direct evidence of DRR in Domingo vs. Rayala. But Justice Nachura considered the totality of the circumstances in arriving at his finding of liability. There were nasty verbal acts, as well as physical acts, like touching the complainant’s shoulder while dictating something to her. These acts, taken in their entirety, amounted to substantial evidence.
C Third Physician Rule (Phil Hammonia Ship Agency, Inc. vs. Dumadag, J. Brion, June 26, 2013) Note: The compensability of a seafarer’s disability resulting from illness or injury is governed by (a) Art. 191, PD 442; (b) the POEA-SEC; and (c) medical evidence. Requisites: (a) work-related; and (b) degree of disability ( whether Grade 1 (total & permane nt), Grade 2, etc…) is certified to by the company-designated physician. Rules: (1) Within 3 days from medical repatriation, the seafarer must report to manning agent. If phsycally impossible, notify the latter within the same period. Non-compliance will bar claim. (2) Seafarer must submit himself to company-designated physician for examination and treatment. Unjustifiable abandonment of treatment will disqualify him. (3) Opinion of company-designated physician is controlling, subject to the right of the seafarer to seek medical opinion elsewhere. (4) In case of conflict in medical findings, the parties shall agree on a third physician whose findings will be final and binding. Brion ruling. Dumadag filed his complaint without first disclosing the medical findings of his own physician. Due to his non-disclosure, the manning agent was not able to avail of the third physician remedy. Hence, at the time he filed his complaint he had no cause of action. Note: Philman Marine Agency, Inc. vs. Cabanban, July 29, 2013. if personal physician is sought after filing of complaint.
No cause of action if opinion
UPDATE: Non-use of a third physician has the effect of according the medical opinion of the company-designated physician binding effect (as against lack of cause of action).
MCQ: The legal effect of non-referral to a third physician is as follows: (a) lack of cause of action; (b) finality of the medical opinion of the company physician; (c) appointment by the Labor Arbiter of a third physician; (d) D Burden of Proof vs. Burden of Evidence (1) For money claims: Employee must first set forth his claims with particularity, or establish the credit clearly, before the burden of proving payment can be imposed on the employer. Once some form of payment is presented, the burden of evidence is shifted to the employee. (2) For illegal dismissal: Employee must first establish the fact of his dismissal with clear, positive and convincing evidence before the burden of proving the validity of his dismissal can be imposed on his employer. E Doubts Arising From Evidence Extent of the Liberal Interpretation Rule: Doubts and ambiguities arising from (a) PD 442 provisions; and ORILC provisions (Art. 4, PD 442); (b) labor contracts (Art. 1702, NCC); and (c) evidence in labor proceedings (Duty Free Phil. V. Trias, 27 June 2012). V MONEY CLAIMS Jurisdictional Rules Reasonable Causal Connection Rule. The money claim must have reasonable causal relation to employer-employee relationship. If it arises from some other relationship, like a civil contract (e.g., Sonza vs. ABS-CBN), labor tribunals have no jurisdiction. Reference to Labor Law Rule. Not all disputes arising from the affairs between employers and employees are for labor tribunals to resolve. Only claims resolvable thru the application of the Labor Code, other labor statutes, and labor contracts are under their jurisdiction.
Outside Jurisdiction of LA: (a) reimbursement of training expenses (U-BIX case); (b) recovery of car , replevin (Astorga Case ); (c) damages arising from violation of Art. 19, NCC (Eviota case); (d) damages arising from quasi delict (Tolosa case); ( e) cross-claim between principal and service contractor (SSS case ); petition for declaratory relief to nullify a CBA provision (Halaguena, et al. vs. PAL, Oct. 2, 2009). In all these cases, it was held that the issue was resolvable thru the application of other laws.
Labor Standards Claims Coverage:
Art. 80
(a) All employees in all establishments; (b) whether for profit or not; (c) no distinction between daily-paid and monthly-paid; (d) except ur MOM, GF & Western Police District (WPD).
Not Covered: MOM (Managerial employees, Officers/Members of managerial staff; Members of the family of the employer dependent on him for support) GF (Gov’t employees, Field Personnel) WPD (Workers paid by result, Persons in the personal service of another, Domestic workers), subject to “K” Law.
Under the Kasambahay Act, HelLauGarCya (Helpers, Laundry Note: personnel, Gardeners, Cooks, Yaya) are now entitled to weekly rest period (also 8 hours daily rest), SIL & OT)
Holiday Pay & 13 th Month Pay Pieceraters: Pro labor : Although workers paid by result, they are entitled to holiday pay (Sec. 8(b), Rule IV, Bk III, ORILC + Labor Congress of the Philippines ruling 1998. Pro employer: Not entitled for being workers paid by result (Art. 82, Villuga vs. NLRC , 1993 + Mark Roche Int”l, 1999). As to 13th month pay, they are entitled because their employers are not exempt. Paid on Commission basis : Entitled to holiday pay and 13th month pay IF receiving basic salary also. In computing 13 th month pay, commissions shall be added if wage type (basis for commission is the performance of the worker), but not if bonus type (incentive). Paid on task basis . Not entitled to holiday pay and 13th month pay. No qualifications. Hours of Work : Flexible Work Schedule (must be NeVoTe - Necessary, Voluntary & Temporary). See Kasambahay notes. Solo Parents Welfare Act . Aspects: (1) Can arrange with employer over time-in & time-out; (2) Can leave work to attend to dependent subject to these conditions: (a) must come back to complete normal hours of work; (b) cannot exercise right during core work hours; (c) right not available if it will impair individual or company productivity. DOLE Advisory 2, s. 2009 : (a) Compressed Work Week; (b) Reduced Work Days (subject to 6 months cap); (c) Rotation; (d) Broken Time; ( e) Forced Leave. Service Incentive Leave (It is a “curious animal” because it does not prescribe like other claims do, Autobus ruling, 2006) Options: (a) use 5 days vacation with pay; (b) monetize it after 1 year; or (c) get money equivalent of all SILs upon retirement or separation (Art. 291 will not bar more than 3 years old SILs). Wage Distortion Adjustment
1 Wage Distortion: (a) 2/more wage groups (inter-wage group); (b) each wage group has its wage rate based on some rational consideration; (c) wage gap/wage advantage of one wage group over the other is either eliminated or compressed; and (d) the elimination/compression is caused by a wage order, CBA renegotiation or merger of companies. 2 Wage Distortion Adjustment. WDA = Minimum Wage x Prescribed Increase Actual Salary (of disadvantaged wage group) Note: Add the result to the wage rate of the wage group that has lost its wage advantage in order to restore it.
Attorney’s Fees 1 Masmud vs. NLRC, 2009. Ordinary Attorney’s Fees vs. E xtraordinary Attorney’s Fees. Extraordinary - species of damages awarded to worker for being compelled to litigate against his employer and incur expenses; it is awarded to a worker; it is limited to 10% only (Art. 110). Ordinary - compensation for legal services; it is paid by employee to his lawyer; its amount is governed by agreement; in the absence of an agreement, Quantum Meruit applies; hence, it can be more than 10%.
2 Exodus Int’l Construction Corp. Vs. Biscocho, Feb. 23, 2011. 10% attorney’s fees can be awarded even if lawyer does not attend many stages of the proceedings. Reason: the 10% is not based on rendition of legal services but compulsion to litigate on the part of the client. UPDATE: Workers can enter into a compromise agreement with employer even without their counsel as long as they comply with their contractual obligation to pay the agreed attorney’s fees ( ). Worker’s Preference (Art. 110). Requisites of first preference: (a) remaining funds or properties cannot cover all outstanding obligations; and (b) the unpaid claim is brought in a bankruptcy or insolvency proceeding, or any proceeding of similar import (judicial settlement of estate, but not extrajudicial foreclosure of mortgage).
Note: Art. 110 does not affect the order of preference established in Art. 2241 and 2242, NCC. Hence, the State and mortgagee are always ahead of the unpaid worker (Peralta & DBP cases). Under Art. 2241, the unpaid worker is No. 6 only. Under Art. 2242, he is No. 3. What Art. 110 affects is Art. 2244 only under which the unpaid worker is No. 2. No. 1 is funeral expenses. What the unpaid worker enjoys is a mere preference; whereas, the State and mortgagee enjoy liens. The special nature of a lien is that it attaches to a specific property. Therefore, Art. 110 cannot take away the mortgaged property and deliver it to the unpaid worker, just as it cannot take away taxable property to deliver it to the worker. These properties are protected for the owners of the tax lien and mortgage lien . Crew Claims Disability Claims See Third Physician Rule , supra. Death Claims Benefits: (a) US$50,000.00 as death benefits; (b) US$7,000.00 for every child not over 21 and unemployed; and (c) US$1,000.00 funeral expenses. Requisites: (a) death is work-connected; and (b) it must occur during the effectivity of contract. Note: Death occurred 6 months after repatriation. Not compensable (Sea Power Shipping Ent., Inc. vs. Salazar, Aug. 28, 2013)
OFW Claims Unpaid Salaries: Pre-terminated OFW Contracts (see Due Process Clause & Equal Protection Clause, supra.)
OFW Waivers Basic rule: Waivers are void for being contrary to public policy, but not when they represent a fair and reasonable compromise and they are supported with substantial consideration (Periquet vs. NLRC). For OFW waivers to be valid, they must: (a) be written in a language understood by the OFW; (b) be witnessed by 2; (c) be notarized; (d) state the amount of the actual money claim; and (e) state the amount of the compromised claim (to aid the courts in determining if substantial or unconscionable).
Retirement Benefits Article 287. Formula: 22.5 days x average daily salary x length of service Note: 22.5 days = 15 days (half month salary); 5 days (SIL); and 2.5 days (1/12 of 13th month pay). Always give the 15 days. But before giving the others, find out if the retiree is entitled to SIL and 13th month pay. If not, do not include 5 & 2.5. Example: a taxi driver is paid on task basis according to the SC. As a worker paid by result, he is not entitled to SIL; so take away the 5 days. He is not also entitled to 13th month pay. So take away the 2.5 days. (Refer to Diagram of Art. 82 & 13th Month Pay) SSS. PD442 retirement benefits a re “apart from “ SSS retirement benefits (Chan vs. Rogelio, April 27, 2011). Employer cannot argue that an employee should not get two retirement benefits for retiring just once. Pag-Ibig. Pag-Ibig retirement benefits are substitute retirement benefits. Any difference between PD442 computation and Pag-Ibig computation shall be paid by the employer (Sec. 21, Pag-Ibig Fund Act ). SSS Claims Beneficiaries. Bart was married to Celia who started cohabiting with another man. They had a child, Isa, who died at an early age. Bart, in turn, cohabited with Libby with whom he had 2 children, Dalawa and Tatlo - aged 24 and 22. Then he fathered 2 more children with another woman, Delia. These children named Apat and Lima were aged 15 and 17. In time, Bart died. Death benefits were claimed: (a) by Celia; (b) Libby and her 2 children; and (c) Apat and Lima. Whose claim must be granted? Deny: (a) Celia’s claim because, at the time of Bart’s death, she was not living with him. (Qualifications of spouse: legitimate + living with); (b) Libby’s claim because she may be living with Bart but she was not his legitimate spouse; (c) Dalawa & Tatlo’s claim because, at the time of Bart’s death, they were above 21. (Qualifications of children: below 21, unemployed, and unmarried). Grant: Apat & Lima;s claim because, at the time of Bart;s death, they were below 21, unemployed and unmarried.
Note: In the Sygney case, the first paramour presented a fake marriage contract. When disqualified, she presented a waiver signed by the legitimate wife. Both were dishonored. The 2 children of the second paramour were allegedly disqualified too because, at the time of Bart’s death, they were not living with him . SC said “living with” is not a requisite for children. GSIS Claims The AOO Rule (not a legal term; just a memory tool; do not use it in the Bar). AOO (arose out of employment). For disability or death arising from disease to be compensable, the disease must be AOO, i.e., occupational in nature. It is occupational if listed in Annex “A” of the Employees Compensation Act, as amended. If not listed, compensation can be based on substantial evidence of work-connection with the use of the Increased Risk Theory or Proximate Cause Theory . In the Cate case, the disease was unlisted. However, Cate could not present medical evidence to comply with the substantial evidence rule. SC ruled that his disability caused by Osteoblastic Osteosarcoma was compensable because even medical science could not explain the origin of his disease The ICO Rule. (same) ICO (in the course of employment). For disability or death caused by injury/accident to be compensable, the injury/accident must occur in the course of employment. If outside, not compensable - subject to the so-called off-premises rules, e.g. Reasonable Nexus Rule., Reasonable Nexus Rule. Question to ask: Does the member’s absence from his place of work have a reason able connection to his presence at the place of contingency (injury/accident)? Answer: YES - compensable. The answer is YES in the following:
(1) Hinoguin was assigned in Nueva Ecija. He was accidentally shot to death by a fellow soldier in Nueva Vizcaya. Travel outside place of work was by authority of a night pass given by his commander. (2) Nitura fell off a wooden bride outside camp. He was dispatched by his commander to locate his fellow soldiers who went to a dance in an nearby town. Besides, a soldier is deemed on 24-hour duty (24-Hour Duty Rule) . Unless on leave of absence, he is deemed on duty wherever he is. (3) Alvaran, assigned in Pasig as a jail guard, was shot to death by a fellow policeman in Muntinlupa on the occasion of the investigation of his son whom he accompanied to Muntinlupa. He was on a peacekeeping mission, not a personal mission. (4) Rogrin. His mission order directed him to arrest criminal elements at Place A. While proceeding to that place, he received reliable info that the criminals had relocated to Place B. To reach the place, he and convoy had to drive thru a private subdivision where he was shot to death by a security guard. Death compensable under the Liberal Interpretation Rule. The answer is NO in the following:
(1) Alegre, instead if manning the police precinct he was assigned to, ferried passengers aboard his tricycle. He was shot to death by a fellow policeman. He was on a purely personal mission .
(2) De la Rea. He was shot to death with a .45 caiber as he alighted from a passenger jeep. At the time of his death, he was on official leave. 24-Hour Duty Rule does not apply.
Limited Portability Law What is portable ? (a) service credits; and (b) contributions. A member carries them with him when he moves from one system to the other (SSS to GSIS, vice versa). If he cannot avail of a benefit by reason of insufficient length of service (and for this reason ONLY), his SSS service credits and GSIS service credits can be combined so that he can avail thereof. Gamogamo Case (Portability Law not applied). In 1963, Gamagamo joined the DOH as dental aid. In 1967, he became Dentist 1. After 14 years, he joined a private company which PNOC absorbed later. In his contract with PNOC, his years of service with the company were aknowledged but not those with DOH. In time, PNOC floated a retrenchment package under which he would have been paid 2 months salary for every year of service. However, his application for retrenchment was denied. He continued working until he reached retirement age. He was paid 1 month salary for every year of service. After retiring, he discovered that 2 of his co-employees were paid 2 months salary x length of service. He sued PNOC to recover 1 more month and his service credits under DOH, invoking the Limited Portability Law. Held: Law not applicable because he was not disqualified from receiving SSS/GSIS benefits by reason of lack of service credits.
VI LAW ON RECRUITMENT Modes of Commission
1 CUTE CPAs Have Cute Red Peanuts (Art. 13(b), PD 442) + No License/Authority (Canvassing, Utilizing, Transporting, Enlisting, Contract, Promising, Advertizing, Hiring, Contract, Referring, Procuring)
2 With License/Authority
+
Prohibited Act (Art. 34, PD 442 + RA 10022) Bad Defenses
1. 2. 3. 4. 5.
6.
Pp. vs. Jamilosa , Non-Presentation of Receipts for Placement Fees, SC: no need; Art. 13(b) says “whether for profit or not”) Rodolfo vs, People. Lack of Profit. SC: (same) Pp. vs. Panis . 1 recruit only. SC: “ 2 or more” not an element; just a rule of evidence. Pp. vs. Chua. POEA subsequently issued recruitment license. SC: License is prospective only; hence, it cannot legitimize a recruitment done without license. Pp. vs. Comila. Lack of Knowledge that his passengers were recruited by his wife. SC: lack of knowledge is equivalent to defense of good faith which is not available in mala prohibita prosecututions. Pp. vs. Navarra. Less than 3 recruiters; hence, no economic sabotage. SC: there are 6 victims; hence, it may not be by a syndicate, but it is still economic sabotage because it is large scale.
7.
Improper Venue. Complainant has 2 options: file case with court having territorial jurisdiction over place of commission; or with court having territorial jurisdiction over place of residence at the time he was recruited. Good Defenses
1. 2. 3.
Visa Assistance (Darvin vs. CA) Fault of Recruit that he was not deployed (RA 10022). Local Recruitment. Note: RA 10022 says “abroad” whereas Art. 13(b) says local or overseas. Later law prevails. Recruitment of domestic helpers governed by Kasambahay Act.
VII TERMINATION DISPUTES 1.
Fact of Dismissal Control Test. No dismissal without pre-existence of employer-employee relationship. Complete Severance Test. No dismissal without complete severabce of employeremployee relationship. Note: No complete severance in: (a) Art. 286 unless 6-month period of suspension of business operations exceeded; (b) preventive suspension; (c) lockout; (d) on leave without pay employees. Overt Act Test. No dismissal unless the employer commits an overt act resulting in actual termination or constructive termination. Note: No overt act in: (a) resignation; (b) abandonment; (c) desertion by a seaman; (d) expiration of contract; (e) completion of project.
2. 3.
Validity of Dismissal . Just/Authorized Cause ONLY. Pre-termination Procedures. (a) Probationary employees. If dismissal is grounded on Failure to qualify Notices not required if regularization standards were ade known upon hiring (PDI, 2007). Just/Authorized cause - same procedures Expiration - notices not required. Even if there is no intent to dismiss on the ground of (b) Abandonment. abandonment, notice to last known address requirement must still be complied with. No distinction between abandonment as a ground for dismissal and abandonment as a defense. (Tugade Bros. case) (c) Union member. Employer to verify ground for expulsion first before complying with its duty to dismiss per union security clause. (d) Union officer. Employer may dismiss union officer upon demand of union members even pending his investigation before the DOLE RD for misuse of union funds (Tagaytay Country Club case). Proceedings before RD not prejudicial question. (e) Seaman. To be served charge sheet (equivalent of 1 st notice under Art. 282); investigated; and served schedule of penalties (2 nd notice under Art. 282). Minutes of proceedings shall be registered with the vessel logbook (substantial evidence) and transmitted to local agent in the Phil. (for its ready use in case of litigation). This procedure may be dispensed with if its observance will endanger either vessel or crew.
VIII SELF-ORGANIZATION STAKINGS (Security guards, Terminated employees, Aliens, Kasambahay, INC Coverage: members New employees Gov’t employees & Supervisors) The Confidential Employee Rule. A reports to or assists B. Their relationship is fiduciary. A is disqualified if: (a) B possesses labor relations information; and (b) A has access to said information which access is inherent in his position. Not disqualified if: (a) A’s access is to information which is not labor relations in nature (e.g., purely business); or (b) A’s access to labor relations info is accidental only. The Extension Rule under Art. 245. Main rule: Supervisors can organize but cannot join the rankn-file union. Extension rule - a union composed of rank-n-filers and one composed of supervisors cannot join the same federation if (a) the members of the first are under the supervision of the members of the second; and (b) the second conducts trade union activities in the same establishment. Note: Under RA 9481, they can join the same federation as long as they belong to the same establishment. Cert. Election & CB-CN. 1. Certification Elections When Valid: Not barred Contract Bar. Certification Year Bar, or Deadlock Bar, Negotiation Bar or Appeal Bar AND Major ELVOT CASVOT (majority of the eligible voters casts its vote) Who wins: Union with Major VOT VALVOT (majority vote of the valid votes)
2. Run-Off Election (a) Valid CE; (b) 3/more choices (including No Union); (c) None got major VOT VALVOT; (d) Total votes of participants (excluding No Union) is at least 50% of CASVOT; (e) No election contest that would materially alter the CE result. 3. Collective Bargaining (CB) & Collective Negotiations (CN). Under Art. 255 (old), collective bargaining is the function of the EBR. But any group of workers can bring their grievances to the employer (aspect of CN). CB is subject to jurisdictional preconditions; CN is not. The end product of CB is a CBA; that of CN is a CNA. Art. 3, PD 442 CB guarantees CB but not CN which is found in Sec. 3, Art. XIII of the Const’n only.
Rights of Exclusive Bargaining Representative (EBR) 1, Notice of Strike ; 2. Strike Vote; 3, Notice to Arbitrate Law on Strikes Factual Issue: 3 Elements (a) temporary stoppage of work; (b) concerted activity; and (c) labor dispute.
Validity Issue: MISPAP Test (a) Means Test; (b) Injunction Test; (c) Statutory Prohibition Test; (d) Procedure Test; (e) Agreement Test; (f) Purpose Test.
Collective Bargaining Agreements
1. Mandatory Provisions: Union Security Clause When the SOLE crafts a CBA for the parties, following commenced but failed CBA negotiations, stipulations already reached cannot just be disregarded. If the union security clause agreed upon was a union shop, it is grave abuse of discretion if the SOLE changes it to closed-shop because the latter is more onerous to the company. In a union-shop agreement, the company can hire non-union members subject to the duty of the new hire to join the EBR. In a closed-shop agreement, the company is under obligation to hire from the membership of the EBR, regardless of qualifications vis-à-vis the actual manpower requirements of its business. So, a closed-shop agreement is more onerous (Meralco cases). 2. Effectivity of Economic Provisions .
CLUE: “Vol O, Vol U; Invol O, Invol U”
A. Voluntary CBAs (crafted by the parties): 1. Organized (6-month Rule applies): (a) New eco provisions are perfected w/in 6 months following date of expiration of old eco. Provisions - new eco provision will retroact to the day following date of expiration. (b) Outside 6 months, as agreed upon by the parties, e.g.: (i) To retroact; or (ii) To take effect on a later date. Period not covered by the new agreement will continue to be governed by the old provisions (Hold-Over Doctrine). 2. Unorganized (a) SOLE will give parties the opportunity to agree on date of effectivity; (b) Absent agreement, date fixed by the SOLE. B. Involuntary CBAs (crafted by the SOLE): 1. Organized (as agreed upon in the CBA, not the date of the CBA) 2. Unorganized (to take effect like a judicial decision)
X SPECIAL LAWS Double Indemnity Law. Unpaid salary increase doubled + criminal prosecution. Payment does not bar prosecution. Magna Carta for Women 2 months full salary if woman undergoes surgical procedure by reason of a gynecological disorder. Magna Carta for Persons with Disability Vilification/insulting of disabled is now a crime. Solo Parents Welfare Act 1 Solo Parent = Assumes parental responsibility alone; hence, IF NO DADS U ndo Coitus (Insanity, Family member, Nullity, Other person, Death, Abandonment, Detention, Separation,
Unmarried, Crime) PLUS Dependent who is less than 18 and DULU ( dependent, unmarried, living with parent & unemployed). 2 Rights: (a) 7 days parental leave; (b) against discrimination; and (c) flexible work schedule.
