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Labor Relations Reviewer by Buddy Poquiz
Labor Relations Reviewer by Buddy Poquiz
TYPES OF EMPLOYEES
1. Regular employees
Whether continuous of broken, so long as the employment is for more than one year,
regular employment.
Constant Rehiring, renewal of contract plus one year = regular employment
Necessary and desirable to the usual business or trade of the employer
Usual trade and business = main undertaking of the employer
Expiration of the training period
o Training Period
For Apprentice not more than 6 months but not less than 3 months
Combo of Theoretical Instruction plus OJT(Practical application)
The apprenticeship period is considered as the probationary period
Double apprenticeship is not allowed (apprenticeship plus
probationary period). It is against public policies.
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NB: Q: Who has jurisdiction over learnership and apprenticeship disputed? A: Plant
Committee then Department of Labor and Employment. Labor Arbiter has no jurisdiction.
(PAL vs Pano)
2. Probationary Employment
Period can be less than six months, if favorable to the employee as provided for the
employer.
SC: 18 months probationary period can be warranted when the job required extensive
training. The law provides for six months.
During this period, employees are required to comply with the employers standards.
Probation extension: allowed when agreed upon by the parties when necessary to comply
with the probationary standards of the employer. What is prohibited is double probation.
But after the extension, the employee still have not reached the standards, employer can
terminate the employee.
3. Seasonal Employment
From season to season
Performing the same task
4.
Project Employment
Hired for specific undertaking or project
Upon termination of project, automatic cessation of employer and employee relationship
Q: What if there is illegal dismissal during the project? Answer: Reinstatement during the
period of the project and back wages but only during the term of the project.
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7. Casual Employees
Activity performed is not usually necessary or desirable in the usual business or trade of the
ER (not regular); not project; not seasonal.
He is uniquely regular because his regularness attaches only to the particular activity that
he has been doing while still a casual.
Prescriptive Period:
1. Purely Money Claims 3 years
2. Criminal cases under LC -3 years, as a general rule.
Exemptions are:
a. Simple Illegal Recruitment 5 years
b. Qualified Illegal Recruitment - 20 years
3. ECC Cases -3 years
4. Illegal Dismissal 4 years
5. GSIS Claims 4 years
Exemption: Payment of premium, its 20 years.(SC)
6. SSS Claims for payment of premiums, 10 years
7. Sexual Harassment 3 years but SC, no prescription, even after four years.
Requirements for Appeal
1. Payment of appeal fee
o Jurisdictional requirement no payment, appeal will be dismissed for lack of
jurisdiction
2. Submission of memorandum of appeal to LA a quo who will submit it to the NLRC office
which has appellate jurisdiction over the LA a quo.
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The NLRC Commissioner can notify the parties to have amicable settlement base on
Art. 221 of LC.
o No amicable settlement, proceed with decision.
o When affirmed in toto, reinstated to the payroll.
o Losing party, file Motion for Reconsideration. Only one MR is allowed. This is a
condition sine qua non for filing of certiorari. (St. Martins Funeral Home vs. NLRC)
o When MR denied, file a certiorari under Rule 65 to CA within 60 days.
o When Certiorari was denied or unfavorable, file MR again, then when denied thus
upholding NLRC decision, certiorari to SC.
o SC can only review question of law, but can review question of facts when
1. When decision of LA, NLRC and CA are contrary, in collision or diametrically
opposed to each other.(SC)
o Filing and reckoning period
Reckoning Period: Upon receipt of the counsel of record
Philpost: The date of mailing, date of filing
Private Carrier: The date of receipt of private party, date of filing
3. Pay appeal Bond
o Cash and surety bond only, but
UERM Case: Property bond can be posted provided it is sufficient to cover
the monetary award
Bank certification, irrevocable bank guarantee are not allowed
Q: Can you file a motion to reduce bond? A; Yes, but it must be coupled with
the payment of the reasonable amount of the bond. Without the payment,
the period will not be tolled.
o
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Regional Office retains jurisdiction. If not, it
will be transmitted for compulsory
arbitration to the Regional Arbitration Branch
of the NLRC, thus LA.
4. Small money claims with demand for reinstatement
5k or less, but with claim for reinstatement.
Without demand for reinstatement, Regional Director. Thus his
decision is appealable directly to the NLRC.
5. Other cases involving employer employee relationships
Causal relation between employer employee. Without this, regular
courts will have jurisdiction.
Apply the Four Fold Test to determine employer - employee
i.
Selection and engagement of the putative employee
ii.
Manner of payment of salary or wages
iii.
Presence or absence of the power of dismissal
iv.
Presence or absence of the power control
1. Has primacy over all other
2. Q: Are all kinds of control indicative of EE-EM
relationship? A: No. If there is lesser control, no
relationship. More control, there is relationship (Jay
Sonza case)
3. Other test in determining relationship.
Economic relations test Sevilla vs. CA: The
prevailing economic relationship of employer
and employee can be indicative of a
relationship.
Q: Are there instances when there is no
formal contract of employment but the law
mandates the existence of employer
employee relationship? A: Yes. 1. In cases of
labor only contracting. As penalty, actual
employer deemed as employer of the
contractual employee, the contractor will be
deemed as the agent of the former.
Q: Can contractual employees form a
union in the actual employers
premises when there is a labor only
contracting? A.1: Yes, because the law
mandates that the actual employer is
the employee of the contractors
employee.
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A.2: In cases of Working Scholars
under the law, the agreement, no
employer employee relationship.
Requirements: There must be a real
opportunity to finish the course.
NB: For purposes of civil damages, the
working scholar will be treated as
employee and the school as an
employer, particularly in quasi-delics.
6. Legality of strike and Lockout
Strike is the most lethal weapon on employees
i.
May affect the socio-economic situation of a country that is
why there is a law on strike.
ii.
Requirements to stage a lawful strike
1. Based on a valid ground
Two Grounds
CBA Deadlock
ULP
Union Busting (w/c is also ULP)
o NB: Inter/Intra Union Disputes,
wage distortion issues are not
strikable issues.
2. Approved by the majority of the total membership
of the union through strike voting
3. Filing of a Notice of strike
To be filed with NCMB, which will look into
the factual grounds of the strike. It will either
dismiss it by issuing a preventive mediation
order which will have the effect of making
the strike illegal if it still undertaken and will
convert the issue into a preventive
mediation case.
Must be filed before 30 days in case of CBA
Deadlock and 15 days for ULP. The period is
known as the Cooling Off Period. Here, the
Grievance Machinery in the CBA will be
exhausted.
7 days after failure of the Grievance
Machinery, the issue will be submitted to
Voluntary Arbitration conducted by a 3rd nonpartisan person known as the Voluntary
Arbitrator whose decision will be appealable
to the CA under Rule 43.
Dean Salvador A. Poquiz Notes
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4.
5.
6.
7.
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iii.
Types of Strikes
1. Authorized strikes
There must be a strike vote.
2. Unauthorized strikes
When the there is no strike vote Wild Cat
strike
3. General Strike
No EE-EM Relationship
Welga ng Bayan SC a form of Sympathetic
Strike
Political in Nature
Industry wide strike e.g. all employees of the
air transportation in the RP
According to SC, these strikes are
unwarranted
4. Lightning Strike
Brief strike that was stage in short duration
5. Slowdown Strike
To reduce company reduction
Types
I.
Sit down strikers remain in
the plant but they reduce
company reduction
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II.
6. Economic Strike
Staged as a result of a collective bargaining
deadlock
7. ULP Strike
Staged in violation of the workers right to
self organization
7. Damages
8. Employees of GOCC without original charter
9. OFW
Based on Section 10 of RA 8042 as amended RA 10022
10. Over certain churchmen (pastor, ministers)
If its purely religious function, LA has no jurisdiction.
But if not, it has jurisdiction.
11. Collateral Matters
Incidental to the main case
Q: Can a LA award attorneys fees in an illegal dismissal case? A: Yes.
When the LA has jurisdiction over the main issue of the case, it has
jurisdiction over collateral and incidental matters.
rd
12. 3 Party Compliant of a party not connected to a Labor case that has been
affected by its execution.
NB. Except as otherwise provided by this code. These matters are beyond the jurisdiction of
the Labor Arbiter.
1.
2.
3.
4.
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2. Certification Power
Two Types
i.
Indirect Contempt
1. To be dealt with by the NLRC and its rules.
ii.
Direct Contempt
1. By the Rules of Court (R71)
2. Injunctive Power
Art. 263 (g) Assumption powers of President and/or Secretary of
Labor.
The President or the Secretary of Labor, upon assumption, can also
certify the labor dispute assumed to compulsory arbitration. Thus, it
is certified to the NLRC which will resolve the dispute.
Q: Can the labor dispute be certified for voluntary arbitration? A:
Yes. If the Secretary of Labor deems it fit for voluntary arbitration.
3. Appellate Power
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For non - unionize establishment Labor
Arbiter.
NB: Although wage distortion problems are
not strikable, but for failure to pay the
increase pursuant to the wage order, the
employer will be liable to pay double the
amount of the increase under the Doctrine of
Double Indemnity.
4. Injunctive Power
File it with the Regional Arbitration Branch of the NLRC which has territorial jurisdiction
over the workplace of the complainant.
Mandatory Preliminary Conference. Resort to amicable settlement as per Art. 221 of the LC.
Second MPC, if first attempt is not successful.
After second MPC, no amicable settlement, LA will mandate parties to submit position
papers.
o SC: Position papers proceedings are not in violation of due process. Through their
papers, they are heard. Plus, technical matters are not binding in labor proceedings
being an administrative proceeding.
o Q: Can one of the parties file a motion to have a trial type proceeding? A: Yes, but
subject to the discretion of the LA.
When final paper has been submitted, LA has 30 days to decide.
Ten calendar days to appeal
No appeal, immediately self-executory as to the reinstatement aspect. No need for writ of
execution.
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Virgen Shipping case: As to other matters, a writ of execution is needed. To be filed after
period to appeal expired and no appeal is made.
After the motion for execution, LA will set it for pre-execution conference to abbreviate the
proceedings as to Art. 221 of LC.
If after the pre-execution conference, no settlement, proceed to execution.
Garnishment and levy is allowed when no money to answer for the judgment.
3rd party complaint is cognizable by LA for execution.
o Instances when you can lift or quash the writ of execution:
Issued against a non-party
Issued on account of graft and corruption
Issued on account that the awards is incomplete
Irregularly issued
NB: Doctrine of Immutability of Final Judgment: Final judgments are final and cannot be modified.
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One of the unions or a no union should have garnered the
majority vote. (Second Majority Rule) Provided 50% of the
majority validly cast their votes.
A no union may win in certification election. When a no union
win, the one year bar rule will still applies.
In consent election, 25 % Subscription or Consent Requirement
must be present. If attained, holding of certification election is
mandatory, if not discretionary. SC: Even if 25% not attained,
consent election can still be held because it is the best way to
attain the will of the workers.
Instances when holding of certification election is not allowed:
i.
Contract Bar Rule no CE can be conducted during the
lifespan of the CBA except during the 60 day period
(Freedom Period) before the expiration of the 5 year life
span of the CBA
Exemption to the contract bar rule:
a) If the CBA is not registered
o Still valid as to parties but a CE
can now be conducted.
b) If the CBA is incomplete, inadequate or
sub standard. (Sweetheart Contract)
c) If the CBA is hastily entered into or
prematurely extended.
d) In cases of mass disaffiliation in the
bargaining agent.
o Q: Can the remaining officers of
the union still bargain with the
employer? A: Yes. Until and unless
it lost in a certification election, it
is still the bargaining agent.
ii.
One Year Bar Rule no CE may be held one year after the
final result of a prior election. This applies to all election.
iii.
Deadlock Bar Rule a notice of strike is filed with the
NCMB which has been the subject of conciliation,
mediation, exhaustion of grievance machineries,
improved offer balloting, reduced offer balloting.
iv.
Charge of Company Union Rule SC: If there is charged of
company unionism which is an unfair labor practice, it is
a prejudicial question which must be resolved first
before conducting a certification election.
v.
Negotiation Bar Rule if there is a collective bargaining
negotiation in the company premises, it will be a bar for
certification election.
Dean Salvador A. Poquiz Notes
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vi.
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In the event that the CBA is approved, it will govern the company premises or the law of the
plant. Thus, the law of the plant is another name for a CBA.
Whatever benefits that the CBA may bring, non members of the union are also benefitted.
They are not required to pay union dues but they will pay agency fees that will be of the
same amount as that of union dues. Payment of the agency fee is known as the agency
shop, maintenance of the treasury shop, anti-hitchhiker clause, anti-free rider clause.
Q: Is there still a need for the union and the company to agree to impose agency shop? A: No
need. The agency shop agreement is already provided for by law.
Doctrine of Union Monopoly/Exclusive Right Rule the certified union is the only
bargaining agent allowed to bargain with the management to the exclusion of the other
unions in the plant or company premises.
An act either by the employer or the union, their agent or representatives which violates the
constitutional right of the workers to self organization.
There must be employer and employer relationship.
Instances when ULP can be committed even if there is no EE-EM relationship:
1. When committed by agents or representative
2. Yellow dog contract an applicant is made to denounce his membership
to a union or promised not to join one as a condition for employment.
Hence, being an applicant, no employer and employee relationship yet.
Two Types of ULP
o By employer
1. Interference, restraint , coercion in the formation of a union
Discourage the formation or continuation of a union
3 ways of commission
i. Economic
ii. Psychological
iii. Physical
2. Yellow dog contract
3. Discrimination
Not per se illegal. Only if its designed, calculated to discriminate
the officers and members of union with regards to benefits due
to all employees.
It maybe management prerogative. But if its a grand design to
undermine the union, then it is ULP
4. Forming or assisting in forming a company dominated union
SC: Passivity of a union is an indication of a company dominated
union.
Organize with help or assistance of management.
Economic, legal support from employer
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5. Refusal to bargain collectively
Duty to bargain collectively mutual obligation of the parties to
bargain and negotiate with matters regarding terms of
employment and adjustments of grievance machineries for
redress of grievances promptly, expeditiously and in good faith.
Standards of Collective Bargaining;
i. Mutual either the parties may initiate collective
bargaining.
Union may submit CBA proposal.
Employer, after 10 days, may submit a
counter proposal. Failure to submit a
counter proposal will amount to refusal to
bargain, thus a ULP and the CBA
submitted by the union will be governing
CBA in the plant.
Q: A counter proposal was submitted, the
employer made it hard for employees to
bargain during the negotiations with no
real intention to sign a CBA. Is the
employer guilty of ULP? A: Yes, the
employer is guilty of Surface Bargaining.
Blue Sky Bargaining - the union
submitted a proposal which contains
economic demands beyond the reach and
capacity of the employers, thus sky high.
Runaway Shop when the employer
remove his plant or office from one place
to another in order to evade unionism or
collective bargaining and relocate it to
another place which is called as runaway
area.
Q: Is it valid to strike in the Runaway
Area? A: Yes. According to the Labor Code,
strike areas also include runaway areas.
ii. Prompt
iii. Good faith
Q: What if employer submit a
counterproposal on a take it or leave it
basis, is the employer liable for refusal to
bargain collectively? A: Yes. The employer
is guilty of Boulwarism. This is
considered a malpractice which is a
violation of good faith bargaining.
Dean Salvador A. Poquiz Notes
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6. Contracting out of services
SC: Mere contracting out within the period of six months is valid.
But if it goes beyond six months, it is ULP. Because employer
deny the strikers the opportunity to pursue their work.
7. Gross and flagrant violations of the CBA
Refers to economic provisions
By Union
1. Interference, restraint , coercion in the formation of a union
2. Discrimination
3. Payment of Negotiation Fees
It is when in order to settle economic provisions in CBA, union
demands from employer negotiation fees.
Sweetheart Contract when the CBA was not able to get full
economic benefits for employees, or its an incomplete CBA.
Example: when CBA does not have an arbitration clause.
o NB: An incomplete CBA does not bar a certification
election. Thus not bar on holding another certification
election during the 12 month ban.
4. Gross and flagrant violations of CBA
5. Refusal to bargain collectively
6. Featherbedding Activities
Union demanding from employers for fees on services rendered or
not rendered, performed or not performed.
Prolonging the work
In short, the union is engaged in extortion
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