OCTOBER 2

(2
nd
hour)

on the right most column, there are 2 points I would like to point out. It might not
be a grievance if what is involved is not a mandatory subject of bargaining. Even
if it is in the CBA and it is obviously a non-mandatory subject of bargaining, it is
not a grievance in the sense that you cannot insist that it falls under jurisdiction of
the voluntary arbitrator. It might be processed as a grievance but you cannot
bring it to the VA if it involves, let us say, a nominate contract under the civil code
because the laws dictate that it should be under the original and exclusive
jurisdiction of the regular court. Like an option to buy is granted in the CBA. The
employer does not comply with that option to buy to grant the EE using that
asset. The first craftthat buying that fully depreciated asset. Then the employee
raises that as grievance because what that provision in the CBA is not complied
with by the employer. you process it as a grievance. The employee invoked VA.
This is a MATTER FOR THE COURTS because this involves option to buy.

And then..when it comes to DISPUTES CNCERNING INTERPREATION AND
IMPLEMENTATION OF CBA PROVISIONS.

Suppose it concerns the CBA provisions that is a union security. That is when the
2 procedures have to be really followed.

1
st
to followed is what is provided for in the law --ARTICLE 291. This is the
particular procedure to be followed when the employer can suspend or dismiss.
This is the requirement. This is the procedure.

So, here is an employer..employee. he is dismissed/expelled by the union. The
union goes to management and says-- on the strength of the CBA provision, you
must dismiss him also. We expelled him. continued membership is a necessary
condition for continued employment. So you must terminate him

What is the requirement of the law? Management has to follow this provision.
291 (b).
(b) Subject to the constitutional right of workers to security of
tenure and their right to be protected against dismissal except for a just
and authorized cause without prejudice to the requirement of notice under
Article 283 of this Code, the employer shall furnish the worker whose
employment is sought to be terminated a written notice containing a
statement of the causes for termination and shall afford the latter ample
opportunity to be heard and to defend himself with the assistance of his
representative if he so desires in accordance with company rules and
regulations promulgated pursuant to guidelines set by the Department of
Labor and Employment. Any decision taken by the employer shall be
without prejudice to the right of the worker to contest the validity or legality
of his dismissal by filing a complaint with the regional branch of the
National Labor Relations Commission. The burden of proving that the
termination was for a valid or authorized cause shall rest on the employer.

AFTER HE HAS BEEN GRANTED THATlet us say the decision is dismissal,
then he can invoke the procedure in the grievance machinery of the CBA. He can
say, I am raising it __. Then management will have to follow the procedure int eh
grievance machinery.

Now, if management finds that it is sufficient ground to dismiss him and gives him
notice of dismissal, ..remember: 2 notice rule under 291 (b); once 2
nd
notice is
brought out..you can NO LONGER INOVKE VOLUNTARY ARBITRATION. Why?
Because of the original and exclusive jurisdiction of the labor arbiter in case of
Termination. Terminated naman xa. Dili nana voluntary arbitration. File nana xa
ug illegal dismissal complaint with the labor arbiter.

But take note ha! HOW IT BEGAN WITH 277 (B) THEN IT MOVED TO
GRIEVANCE MAHCINERY AND THEN YOU GO TO LABOR ARBITER because
there is already termination that has taken place.

224 (a) subparagraph (2): TERMINATION. Original and exclusive jurisdiction.

LET US GO TO 2
ND
COLUMN FROM THE RIGHT.

JURISDICTION
1. Certification election proceedingsin the regional office and registration of
unions and cancellation of union registration.
2. Now CBA registration is covered by article 236. It used to be article 231. It
is 236 now.
3. Independent local registration of the unionnow covered by 239 instead
of 234.
4. Registration by charteringnow covered by 240.
5. Cancellation of registration of unionnow covered by 244.
6. Visitorial power of the secretary with respect to labor unions is found in
280.
7. Actions arising from 241on the rights and conditions of union
membership-- It is now 249 instead of 251.
(arising from Accounting of union funds and other violations of unions
rights)now 232. Intra union dispute. (Art. 226. Bureau of Labor
Relations. The Bureau of Labor Relations and the Labor Relations
Divisions in the regional offices of the Department of Labor, shall have
original and exclusive authority to act, at their own initiative or upon
request of either or both parties, on all inter-union and intra-union conflicts,
8. Petitions for certification elections add this; 267, 268 and 269
267unorganized establishments
268organized establishments
269when it is filed by the employer

after this BLRs Visitorial powers to inspect the unions offices and demand to
inspect the books of the union and its documents, its list of membersthat is
found in section 16, chapter 4, book 4, title 7 of the admin code of 1987.

The authority is there is LA TONDENA FARMERS UNION V. SECRETARY. 239
SCRA 117, 1994.

THESE ARE ALL BLR MATTERS.
1. intra-union disputes
2. election of union officers
3. CBA Registrationwho keeps the copy of the CBAs? the bureau of labor
relations. Thats why you keep your CBAs there with them
4. Cancellations cases
5. Organizing/creation independent local and creation of a charter

That is provided in 239, 240 and cancellations cases on 244.

Alright, we have now covered the 2
nd
column.

3
RD
COLUMN FROM THE RIGHT

BUREAU OF LABOR RELATIONS ORIGINAL JURISDICITON (232)

1. Federation and national trade union centerswhat are they made up?
They are made up of independent unions, federations, national unions,
both of which must have at least 10 locals who are exclusive bargaining
agents in their own places. To be a federation and national union, you
must have 10 locals who are exclusive bargaining agents. If your number
of locals who are exclusive bargaining agents will be LOWER THAN 10
do you cease to be a federation? NO. your registration will not be
cancelled because the law now specifically provides that there are only 3
grounds fro cancellation of registration. Anomalies in the organizational
meeting, formation of union, election and hen 2/3 of members vote to have
their registration cancelled in a meeting duly called for the purpose. Those
are the only grounds. The first 2 are initiated by the labor arbiter. 3
rd

ground by the union.
a. Registration, revocation and cancellation cases
b. Intra union disputes
c. Inter union conflicts

4
th
from the right:
POEA

What are we talking about here?
1. Recruitment agencies and
2. non-fee charging placement agencies.

JURISDICITON OF POEA

1. cancellation/suspension of license of authority to recruit of
recruitment agencies (until phase out within 5 years as provided in RA
8042)because they grant licenses. You apply for a license and the same
may also be cancelled. It is the SECRETARY OF LABOR who upon
hearing with the POEA who can cancel the license. The POEA
administrator CAN SUSPEND the license but in the end, it is the SOLE
who CAN CANCEL. The POEA Director can grant a license/authority.
Remember authority is placement of workers without a fee. Licenseyou
can recruit placed workers FOR A FEE. He must be approved by the
POEA. If not approved, it is a form of ILLEGAL RECRUITMENT. Thats
10022. It has broadened illegal recruitment. The latter can now be
committed even by a LICENSED/ or one possessing AUTHORITY. Its not
only the sin of the licensed or fly by night employers but even those with
LICENSE can commit illegal recruitment.
2. Disciplinary action of OCWs.
Theres a new terminology of OCWs. That has already been superseded
by what? By the new law. RA 10022MIGRANT WORKERS. They were
influenced by the pinkish organization. Bisag dili kamu-migrate, migrant ka
gihapon.

There is one thing that is queer about 10022. What is that? It has repeated a
provision that has been declared by the supreme court as unconstitutional. What
are the penalties of dismissing a migrant worker befor e the termination of his
contract is damages by way of collecting the balance , unpaid balance of the Ill
read to you section 10 of RA 8042

In case of termination of overseas employment without just, valid or
authorized cause as defined by law or contract, the workers shall be
entitled to the full reimbursement of his placement fee with interest of
twelve percent (12%) per annum, plus his salaries for the unexpired
portion of his employment contract or for three (3) months for every
year of the unexpired term, whichever is less.

THAT PARTICULAR PORTION OF 3 months for every year of the unexpired
term or lesser has been declared by SC as INVALID. That is SERRANO V.
GALLANT MARITIME SERVICES (2009). Nonetheless, RA 10022 REPEATS
THE SAME PROVISION as 8042 which has already been declared invalid by
the SC because of whichever is lesser. So a migrant worker now is
entitled to he unexpired portion salaries of his contract as a penalty for
this illegal dismissal.

Q: If you are asked to compare an ORDINARY illegal dismissal case and a
dismissal case of a migrant worker, what is the difference in terms of
remedy?

In the migrant workers case, there is NO REINSTATEMETN because the
labor arbiter that has jurisdiction now of migrant workers termination
cases, they CANNOT ENFORCE THE JUDGMENT. Ang imung employer is
beyond the jurisdiction of the Philippines. Thats why the law does not
contain reinstatement. In lieu of reinstatement, they give you REFUND
OF YOU PLACEMETN FEE + 12% Interest per annum + salaries of the
unexpired portion in the employment contract.

(giingnan nako si Edwin na unsaon man na nimu kung terminated ka
didto nga ang nag-place sa imu kay POEA man. Unsa man imung remedy?
**POEA does not issue receipts and there are waves of these.)

Thats the equivalent of separation benefits if you cannot be given
reinstatement.

Remember in the ordinary illegal dismissal, if you cannot be reinstated-
you get the equivalent of separation benefits:
- RULE: month (?) for every year of service accruing from the
time you were separated up to the time the decision became final
- EXCEPTION:
If you reach retirement age when case is pending, in
which case your separation benefits is only from the
time that the right of action accrues (time dismissed)
till the time you reached retirement age
or when the employer completely closes downfrom
time dismissed up to the time the employer is still
operating (?)

REGIONAL DIRECTOR

129 (ADJUDICIATORY)That remains the same

VISITORIAL AND ENFORCEMENT POWERS

128 (amended by DO 131-13)BECAUSE NOW THER ARE NO MORE SURPISE
INSTPECITONS. There are no more Visitorial inspections. What is it now?
We have sophisticated terms for this. LLCSlabor laws compliance
system.

There are now proceedings:
1. joint assessment
2. compliance visit
3. Occupational and health and safety investigation.

Those are the 3 things now that are left somewhat involuntary. But with
respect to labor standardshumane and just standards conditions of
workthat now includes trafficking of minors, slavery, --that is now by
joint assessment or compliance visits. The employer, together with the
Labor laws compliance officer (LLCO)they meet and they determine of
the extent of compliance.

If there is something wrongCOMPROMISE.

Once an employer has now gone through either Joint assessment or
compliance visit or occupational health and safety investigation and
receives a certificate, then he is presumed compliant for a period of 2
years. Dili na xa bisitahan, because eh is presumed to be compliant and
he receives a certificate of compliance. he will not be visited for at least
2years.

The old problems beforesige nalang sila ug issue of writ of execution.
Sige sila execute sa ilang judgment. Magkamali pa. Daghan sheriff napriso
ana. That is the problem with respect to which this particular DO 131-13
..

ADJUDICATORY

- It must be a PURELY MONEY CLAIMS COMPLAITN without any prayer
of reinstatement.
o The moment there is a prayer for reinstatement, the
regional director will have to indorse it to the labor arbiter
because it becomes a TERMINATION DISPUTE and the
monetary claims is just considered as incidental. Remember,
magkuyog gani ang dismissal and money claims complaint
the amount of the money claims is IMMATEIRAL because it is
just an incident o the main cause of action which is
termination. Where shall it go? LABOR ABITER because of
224.
- The regional director of labor is acting as quasi-judicial body like
the labor arbiter. It is only ADJUDICATORY. What does that mean?
o The decision of the Regional director in this instance is not
appealed to the SOLE. Where is it appealed? To the NLRC.
o Whereas, in the Visitorial powers, the decision is appealed to
the SOLE (before) , now it is now resolved by compromise.
o In the exercise of adjudicatory powers of money claims
jurisdictional amount is MUST NOT BE MORE THAN 5,000
INDIVIDUAL AGGREGATE CLAIM of domestics, kasambahay,
commercial, industrial, agricultural workers.

LABOR ARBITER (224) (a)

1. ULP224 (a) (1)
a. Must all ULP land with the labor arbiter? If not, what are the
exceptions?
i. If the parties agree to submit the controversy so
Voluntary Arbitration, then it becomes the PERMISSIVE
jurisdiction of the labor arbiter. What is the legal
effect of that? When you do that, you WAIVE THE
CRIMINAL ASPECT of the ULP case. The voluntary
arbitrator will decide on the issues that constitute ULP
but there will no __on the criminal. Usually, it bears
on the monetary aspect of the ULP.
1. Lets say union leaders were dismissed. Strike
sila. Then secretary assumes jurisdiction and
they say, okay. we will go to the voluntary
arbitrator with respect to this aspect of
dismissal.NO MORE. Its not unfair labor
practice anymore. Naistoryahan na man na.
Whether or not it was a correct dismissal, ..if its
not correct, then reinstatement, or if he cannot
be reinstated, then separation benefits because
It is an ORDINARY illegal dismissal.

b. another part of ULP is VIOLATION OF THE CBA
i. There is only one kind of violation of the CBA can be
unfair labor practicewhen the violation of the CBA
involves economic provisions and the violation is gross.
Gross when it is flagrant, refusal to comply with the
economic provisions.
1. So if there is a question of interpretation in the
economic provision, it cannot be a ULP.
2. If there are ambiguous provisions, open to
interpretation of not just one crimeit cannot
be an unfair labor practice.

2. TERMINATION CASES
a. Wa xa gitagaaan ug trabaho pero dili lang gihapon na xa
terminationwhat is that? Can that happen? Read the case of
COMMANDO SECURITY V. NLRC--A contract worker who is
not given an assignment is not dismissed if it __for 6 moths.
The contractor is given a leeway. Mangita xa ug contract nga
ma-place niya ang security guard. 6 motnhs is now
considered a termination.
b. Suspension of operations of a particular factory for 6 months
is NOT TERMINATION.
c. Nasunog ang gaisano mall. Ang sales girl kay naglaroy2x na.
they file illegal dismissal kay wala naman sila sweldohan.
Ana ang gaisano, walay sweldo kay wala na man tindahan,
wala na mo tinduganONCE IT REOPENS, then you can go
back there. But if you do not reopen after 6 months, NOW
YOU CAN ASK FOR SEPARAITON BENEFITS because you were
terminated not because of culpable cause but __. Then
gaisano says, serious loss ang nahitabo! Tanawa ning mga
litrato, perting sunuga. Dili ban a loss? DILI NA LOSS. What is
accepted measure is an AUDITED FINANCIAL STATEMENT.
That is not an evidence of loss. Why is it important for you
to present that? Under the termination provisions, when an
employer suffers serious loss, he is no longer obliged to pay
separation benefits. What is the remedy of the employee?
Article 110. WORKER PREFRENCE IN THE ASSETS OF THE
EMPLOYER in case of bankruptcy. What does it cover? ALL
EMPLOEYRS that have gone through the in rem proceeding of
INSOLVENCY under the FRIA law. Unles syou have been
declared as insolvent, this does not apply. Second, the
property directly claimed by the workers must be free from
encumbrance. If its already the subject of a mortgage,
therefore, tit is already encumbered. It is a security of a
loan. So, the creditor to whom it is now due has already fist
preference over it. Then, what is the other requirement? It
covers only wages and benefits, unpaid wages and benefits.
It does not cover any other claims. What are the claims?
Suppose there was a provident fund that to which the
employer made such contributions and the employer made
some _. Can you run after the employer? Claiming 110 on
worker preference over a particular free property of
employer? YOU CANNOT because it does not cover unpaid
wages or benefit! UNPAID WAGES AND MONETARY CLAIMS
dapat.
3. ENFORCEMENT OF LABOR STANDARDS WITH CLAIM EXCEEDING
P5,000 per individual, whether or not accompanied with claim for
reinstatement.

We will continue.