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Simplified Labor Law Reviewer
Simplified Labor Law Reviewer
Simplified Labor Law Reviewer
[T]o determine whether a person who performs work for another is the
latter's employee or an independent contractor, the National Labor Relations
relies on 'the right to control' test. Under this test an employer-employee
relationship exist where the person for whom the services are performed
reserves the right to control not only the end to be achieved, but also the
manner and means to be used in reaching the end. (LVN vs. Philippine
Musicians Guild [G.R. No. 12582] citing United Insurance Company, 108,
NLRB No. 115.)
[T]he relationship between jeepney owners/operators on one hand and
jeepney drivers on the other under the boundary system is that of employeremployee and not of lessor-lessee. We explained that in the lease of
chattels, the lessor loses complete control over the chattel leased although
the lessee cannot be reckless in the use thereof, otherwise he would be
responsible for the damages to the lessor. In the case of jeepney
owners/operators and jeepney drivers, the former exercise supervision and
control over the latter. The management of the business is in the owner's
hands. The owner as holder of the certificate of public convenience must see
to it that the driver follows the route prescribed by the franchising authority
and the rules promulgated as regards its operation. Now, the fact that the
drivers do not receive fixed wages but get only that in excess of the so-called
"boundary" they pay to the owner/operator is not sufficient to withdraw the
relationship between them from that of employer and employee. We have
applied by analogy the abovestated doctrine to the relationships between
bus owner/operator and bus conductor, auto-calesa owner/operator and
driver, and recently between taxi owners/operators and taxi drivers. Hence,
petitioners are undoubtedly employees of private respondent because as taxi
drivers they perform activities which are usually necessary or desirable in the
usual business or trade of their employer. (Jardin vs. NLRC [G.R. No.
119268, 23 February 2000])
The case of Pajarillo vs. SSS, invoked by the public respondent as
authority for the ruling that a "joint fishing venture" existed between private
respondent and petitioners is not applicable in the instant case. There is
neither light of control nor actual exercise of such right on the part of the
boat-owners in the Pajarillo case, where the Court found that the pilots
therein are not under the order of the boat-owners as regards their
employment; that they go out to sea not upon directions of the boat-owners,
but upon their own volition as to when, how long and where to go fishing; that
the boat-owners do not in any way control the crew-members with whom the
former have no relationship whatsoever; that they simply join every trip for
which the pilots allow them, without any reference to the owners of the
vessel; and that they only share in their own catch produced by their own
efforts.
The aforementioned circumstances obtaining in Pajarillo do not exist in
the instant case. The conduct of the fishing operations was undisputably
shown by the testimony of Alipio Ruga, the patron/pilot of 7/B Sandyman II,
to be under the control and supervision of private respondent's operations
manager. Matters dealing on the fixing of the schedule of the fishing trip and
the time to return to the fishing port were shown to be the prerogative of
private respondent. While performing the fishing operations, petitioners
received instructions via a single-side band radio from private respondent's
operations manager who called the patron/pilot in the morning. They are told
to report their activities, their position, and the number of tubes of fish-catch
in one day. Clearly thus, the conduct of the fishing operations was monitored
by private respondent thru the patron/pilot of 7/B Sandyman II who is
responsible for disseminating the instructions to the crew members. (Ruga
vs. NLRC [G.R. No. L-72654-61, 22 January 1990])
The business venture operated under Geminesse Enterprise did not
result in an employer-employee relationship between petitioners and private
respondent. While it is true that the receipt of a percentage of net profits
constitutes only prima facie evidence that the recipient is a partner in the
business, the evidence in the case at bar controverts an employer-employee
relationship between the parties. In the first place, private respondent had a
voice in management of the affairs of the sales force. Secondly, petitioner
Tocaos admissions militate against an employer-employee relationship. She
admitted that, like her who owned Geminesse Enterprise, private respondent
only received commissions and transportation and representation allowances
and not a fixed salary. If indeed petitioner Tocano was private respondents
employer, it is difficult to believe that they shall receive the same income in
the business. In a partnership, each partner must share in the profits and
losses of the venture, except that the industrial partner shall not be liable for
losses. As an industrial partner, private respondent had the right to demand
for a formal accounting of the business and to receive her share in the profit.
(Tocao vs. CA [G.R. No. 127405, 04 October 2000])
The barbershop claims it had no control over its barbers. The power to
control refers to the existence of the power and not necessarily to the actual
exercise thereof, nor is it essential for the employer to actually supervise the
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INDEPENDENT business.
according to his own ACCOUNT.
Under his own RESPONSIBILITY.
According to his own METHOD of conducting business.
Free from the control of the principal except as to the result.
Sufficient Capital or investment in the form of tools, equipment,
materials, work premises (TEM Work).
Wage Order Nos. 5 and 6. Payment, which means not only the delivery of
money but also the performance, in any other manner, of the obligation, is
the operative fact which will entitle either of the solidary debtors to seek
reimbursement for the share which corresponds to each of the debtors.
(Lapanday Agricultural Development Corp. vs. CA [G.R. No. 112139, 31
January 2000])
Jurisdiction of labor courts
[W]here the claim to the principal relief sought is to be resolved not by
reference to the Labor Code or other labor relations statute or a collective
bargaining agreement but by the general civil law, the jurisdiction over the
dispute belongs to the regular courts of justice and not to the Labor Arbiter
and the NLRC. In such situations, resolution of the dispute requires
expertise, not in labor management relations nor in wage structures and
other terms and conditions of employment, but rather in the application of the
general civil law. Clearly, such claims fall outside the area of competence or
expertise ordinarily ascribed to Labor Arbiters and the NLRC and the
rationale for granting jurisdiction over such claims to these agencies
disappears. (SMC vs. NLRC [G.R. No. 80774, 161 SCRA 719])
[P]etitioner seeks protection under the civil laws and claims no benefits
under the labor Code. The primary relief sought is for liquidated damages for
breach of a contractual obligation. The other items demanded are not labor
benefits demanded by workers generally taken cognizance of in labor
disputes, such as payment of wages, overtime compensation or separation
pay. The items claimed are the natural consequences flowing from breach of
an obligation, intrinsically a civil dispute. (Singapore Airlines vs. Pao [G.R.
No. 47739])
Petitioner filed the third-party claim before the court a quo by reason of a
writ of execution issued by the NLRC-CAR Sheriff against a property to
which it claims ownership. The writ was issued to enforce and execute the
commission's decision in NLRC Case No. 0165 (Illegal Dismissal and ULP)
against Green Mountain Farm, Roberto Ongpin and Almus Alabe.
Ostensibly the complaint before the trial court was for the recovery of
possession and injunction, but in essence it was an action challenging the
legality or propriety of the levy vis-a-vis the alias writ of execution, including
the acts performed by the Labor Arbiter and the Deputy Sheriff implementing
the writ. The complainant was in effect a motion to quash the writ of
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MANAGEMENT PREROGATIVES
An owner of a business enterprise is given considerable leeway in
managing his business because it is deemed important to society as a whole
that he should succeed. Our law, therefore, recognizes certain rights as
inherent in the management of business enterprises. These rights are
collectively called management prerogatives or acts by which one directing a
business is able to control the variables thereof so as to enhance the
chances of making a profit. "Together, they may be taken as the freedom to
administer the affairs of a business enterprise such that the costs of running
it would be below the expected earnings or receipts. In short, the ELBOW
ROOM IN THE QUEST FOR PROFITS." (Chu vs. NLRC [G.R. No. 106107,
02 June 1994])
It is noteworthy to state that an employer is free to manage and regulate,
according to his own discretion and judgment, all phases of employment,
which includes hiring, work assignments, working methods, time, place and
manner of work, supervision of workers, working regulations, transfer of
employees, lay-off of workers, and the discipline, dismissal and recall of
work. While the law recognizes and safeguards this right of an employer to
exercise what are clearly management prerogatives, such right should not be
abused and used as a tool of oppression against labor. The company's
prerogatives must be EXERCISED IN GOOD FAITH and with due regard to
the rights of labor. A priori, they are not absolute prerogatives but are
SUBJECT TO LEGAL LIMITS, COLLECTIVE BARGAINING AGREEMENTS
and the GENERAL PRINCIPLES OF FAIR PLAY AND JUSTICE.
The power to dismiss an employee is a recognized prerogative that is
inherent in the employer's right to freely manage and regulate his business.
Corollarily, an employer cannot rationally be expected to retain the
employment of a person whose lack of morals, respect and loyalty to his
employer, regard for his employer's rules and appreciation of the dignity and
responsibility of his office, has so plainly and completely been bared. He may
not be compelled to continue to employ such person whose continuance in
the service will patently be inimical to his employer's interest. The right of the
company to dismiss an employee is a measure of self-protection. Such right,
however, is subject to regulation by the State, basically in the exercise of its
paramount police power. Thus, the dismissal of employees must be made
within the parameters of the law and pursuant to the basic tenets of equity,
justice and fairplay. It must not be done arbitrarily and without just cause.
(Philippine-Singapore Transit vs. NLRC [GR No. 95449, August 1997])
Reorganization
The free will of management to conduct its own business affairs to
achieve its purpose cannot be denied (Abbot Laboratories v. NLRC, G.R. No.
76959, October 12, 1987, 154 SCRA 713). Even as the law is solicitous of
the welfare of employees, it must also protect the right of an employer to
exercise what are clearly management prerogatives. Hence, management is
not precluded from undertaking a reorganization within the company or
entering into mergers with other companies to meet the demands of the
enterprise. In such cases, the company has the prerogative to abolish
managerial and confidential positions or create new ones as the necessity for
them requires. (Yap vs. Ichong [G.R. No. L-51314, 21 June 1990])
Obedience to Company Rules and Regulations
This Court fails to see, however, how these objections and accusations
justify the deliberate and obdurate refusal of the sales representatives to
obey the management's simple requirement for submission by all Premise
Sales Representatives (PSRs) of individual reports or memoranda requiring
reflecting target revenues which is all that GTE basically required and which
it addressed to the employees concerned no less than six (6) times. The
Court fails to see how the existence of objections made by the union justify
the studied disregard, or wilful disobedience by the sales representatives of
direct orders of their superior officers to submit reports. Surely, compliance
with their superiors' directives could not have foreclosed their demands for
the revocation or revision of the new sales policies or rules; there was
nothing to prevent them from submitting the requisite reports with the
reservation to seek such revocation or revision.
To sanction disregard or disobedience by employees of a rule or order
laid down by management, on the pleaded theory that the rule or order is
unreasonable, illegal, or otherwise irregular for one reason or another, would
be disastrous to the discipline and order that it is in the interest of both the
employer and his employees to preserve and maintain in the working
establishment and without which no meaningful operation and progress is
possible. Deliberate disregard or disobedience of rules, defiance of
management authority cannot be countenanced. This is not to say that the
employees have no remedy against rules or orders they regard as unjust or
illegal. They may object thereto, ask to negotiate thereon, bring proceedings
for redress against the employer before the Ministry of Labor. But until and
7
the real reason is to penalize an employee for his union activities and
thereby defeat his right to self-organization. But the transfer can be upheld
when there is no showing that it is unnecessary, inconvenient and prejudicial
to the displaced employee .
The reassignment of Halili and Magno to Manila is legally indefensible on
several grounds. Firstly, it was grossly inconvenient to private respondents.
They are working students. When they received the transfer memorandum
directing their relocation to Manila within seven days from notice, classes
had already started. The move from Tarlac to Manila at such time would
mean a disruption of their studies. Secondly, there appears to be no genuine
business urgency that necessitated their transfer. As well pointed out by
private respondents' counsel, the fabrication of aluminum handles for ice
boxes does not require special dexterity. Many workers could be contracted
right in Manila to perform that particular line of work. (Yuco Chemicals vs.
Minster of Labor [G.R. No. L-75656, 1991])
Waiver of Management Prerogatives Possible; CBA provision to the contrary
Section 2, Article II of the CBA expressly provides that:
Sec. 2. In the exercise of its functions of management, the
COMPANY shall have the sole and exclusive right and power, among
other things, to direct the operations and the working force of its
business in all respects; to be the sole judge in determining the
capacity or fitness of an employee for the position or job to which he
has been assigned; to schedule the hours of work, shifts and work
schedules; to require work to be done in excess of eight hours or
Sundays or holidays as the exigencies of the service may require; to
plan, schedule, direct, curtail and control factory operations and
schedules of production; to introduce and install new or improved
methods or facilities; to designate the work and the employees to
perform it; to select and hire new employees; to train new employees
and improve the skill and ability of employees from one job to another
or form one shift to another; to classify or reclassify employees; and to
make such changes in the duties of its employees as the COMPANY
may see fit or convenient for the proper conduct of its business.
Verily and wisely, management retained the prerogative, whenever
exigencies of the service so require, to change the working hours of its
employees. And as long as such prerogative is exercised in good faith for
the advancement of the employer's interest and not for the purpose of
defeating or circumventing the rights of the employees under special laws or
under valid agreements, this Court will uphold such exercise (Union Carbide
Labor Union vs. Union Carbide [215 SCRA 554])
Imposition of Penalty; A commensurate penalty for an offense
[W]hile Clarete may be guilty of violation of company rules, we find the
penalty of dismissal imposed upon him by respondent Caltex too harsh and
unreasonable. As enunciated in Radio Communications of the Philippines,
Inc. v. National Labor Relations Commission, supra, "such a penalty (of
dismissal) must be commensurate with the act, conduct or omission imputed
to the employee and imposed in connection with the employer's disciplinary
authority" (at p. 667). Even when there exist some rules agreed upon
between the employer and employee on the subject of dismissal, we have
ruled in Gelmart Industries Phils., Inc. v. National Labor Relations
Commission, 176 SCRA 295 (1989), that the same cannot preclude the
State from inquiring on whether its rigid application would work too harshly
on the employee. (Caltex Refinery vs. NLRC [ G.R. No. 102993, 14 July
1995])
Application of; With minor infractions, first violations and length of service.
Mary Johnston Hospital v. NLRC, where the employee had a heated
argument with the department head, the Court held that since the incident
was her first offense during her seventeen (17) years of employment the
penalty of termination was not commensurate with the act committed.
Manila Electric Company v. NLRC, where the employee was declared
guilty of breach of trust and violation of company rules the penalty of
dismissal was not meted to him considering his twenty (20) years of service
without any previous derogatory record and his two (2) commendations for
honesty from the company.
Dolores v. NLRC, where the employee absented herself without
permission from her superior, the Court ruled that the penalty of dismissal
was too severe considering her twenty-one (21) years of service with the
company and it appearing that it was her first offense.
Philippine Telegraph and Telephone Corporation v. NLRC, where the
employee was adjudged guilty of tampering a receipt, the Court ruled that
the imposition of the supreme penalty of dismissal would certainly be very
harsh and disproportionate to the infraction committed, especially after
noting that it was his first offense after seven (7) long years of satisfactory
service.
the employer OR if the employee has rendered at least one (1) year of
service, whether the service be continuous or broken. Ferrochrome Phils. vs.
NLRC, 236 SCRA 315 G.R. 105538 [5 September 1994]
The primary standard, therefore, of determining a regular employment is
the reasonable connection between the particular activity performed by the
employee in relation to the usual business or trade of the employer. THE
TEST IS WHETHER THE FORMER IS USUALLY NECESSARY OR
DESIRABLE IN THE USUAL BUSINESS OR TRADE OF THE EMPLOYER.
The connection can be determined by considering the nature of the work
performed and its relation to the scheme of the particular business or trade in
its entirety. ALSO, if the employee has been performing the job for at least
one year, even if the performance is not continuous or merely intermittent,
the law deems the repeated and continuing need for its performance as
sufficient evidence of the necessity if not indispensability of that activity to the
business. Hence, the employment is also considered regular, but ONLY
WITH RESPECT TO SUCH ACTIVITY AND WHILE SUCH ACTIVITY
EXISTS. (De Leon vs. NLRC [G.R. No. 70705, 21 August 1989])
[T]he second paragraph of Article 280 relates only to casual employees
and is not applicable to those who fall within the definition of said Article's
first paragraph, i.e., project employees. The familiar grammatical rule is that
a proviso is to be construed with reference to the immediately preceding part
of the provision to which it is attached, and not to other sections thereof,
unless the clear legislative intent is to restrict or qualify not only the phrase
immediately preceding the proviso but also earlier provisions of the statute or
even the statute itself as a whole. No such intent is observable in Article 280
of the Labor Code.
The second paragraph of Art. 280 demarcates as "casual" employees, all
other employees who do not fall under the definition of the preceding
paragraph. The proviso, in said second paragraph, deems as regular
employees those "casual" employees who have rendered at least one year
of service regardless of the fact that such service may be continuous or
broken. (Mercado, Sr. vs. NLRC [G.R. No. 79869, 05 September 1991])
In the case at bar, while it may appear that the work of the petitioner is
seasonal, inasmuch as petitioners have served the company for many years,
a number for over 20 years, performing services which are necessary and
indispensable to LUTORCOs business, serve as badges of regular
employment. Moreover, the fact that petitioners do not work continuously for
one whole year but only for the duration of the tobacco season does not
detract from considering them in regular employment since in a litany of
cases this Court has already settled that seasonal employees who are called
to work from time to time and are temporarily laid off during off-season are
not separated from service in said period, but merely considered on leave
until re-employed.
Private respondents reliance on the case of Mercado vs. NLRC is
misplaced considering that since in said case of Mercado, although
respondent company therein consistently availed of the services of the
petitioners therein from year to year, it was clear that petitioners therein were
not in respondent companys regular employ. Petitioners therein performed
different phases of agricultural work in a given year. However, during that
period, they were free to contract services to work for other farm owners, as
in fact they did. Thus, the Court ruled in that case that their employment
would naturally end upon completion of each project or phase of farm work
for which they have been contracted.
All the foregoing considered, the public respondent NLRC in the case at
bar erred in its total affirmance of the dismissal of the consolidated
complaint, for separation pay, against private respondents LUTORCO and
See Lin Chan considering that petitioners are regular seasonal employees
entitled to the benefits of Article 283 of the Labor Code which applies to
closure or cessation of an establishment or undertaking, whether it be a
complete or partial cessation of business operation. (Abasolo vs. NLRC
[G.R. No. 118475, 29 November 2000])
Probationary Employees
Probationary employment. - Probationary employment shall not exceed
six months from the date the employee started working, unless it is covered
by an apprenticeship agreement stipulating a longer period. The services of
an employee who has been engaged on a probationary basis may be
terminated for a just cause or when he fails to qualify as a regular employee
in accordance with reasonable standards made known by the employer to
the employee at the time of his engagement. An employee who is allowed to
work after a probationary period shall be considered a regular employee.
(Article 281 of the Labor Code)
[A] probationary employee, as understood under Article 282 of the Labor
Code, is one who is on trial by an employer during which the employer
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As the law now stands, Article 281 of the Labor Code gives ample
authority to the employer to terminate a probationary employee for a just
cause or when he fails to qualify as a regular employee in accordance with
reasonable standards made known by the employer to the employee at the
time of his engagement. There is nothing under Article 281 of the Labor
Code that would preclude the employer from extending a regular or a
permanent appointment to an employee once the employer finds that the
employee is qualified for regular employment even before the expiration of
the probationary period. Conversely, if the purpose sought by the employer is
neither attained nor attainable within the said period, Article 281 does not
likewise preclude the employer from terminating the probationary
employment on justifiable causes as in the instant case. (International
Catholic Migration vs. NLRC [G.R. 72222, 30 January 1989])
This is by no means to assert that the security of tenure protection of the
constitution does not apply to probationary employees. The Labor code has
wisely provided for such a case thus: "The termination of employment of
probationary employees and those employed with a fixed period shall be
subject to such regulations as the Secretary of Labor may prescribe to
11
work such as selling, or when the job requires certain qualifications, skills,
experience or training.
Policy Instruction No. 11 of the Minister of Labor and Employment has
clarified any and all doubts on the period of probationary employment. It
states as follows:
Probationary
Employment
has
been
the
subject
of
misunderstanding in some quarter. Some people believe six (6)
months is the probationary period in all cases. On the other hand
employs who have already served the probationary period are
sometimes required to serve again on probation.
Under the Labor Code, six (6) months is the general probationary
period but the probationary period is actually the period needed to
determine fitness for the job. This period, for lack of a better
measurement is deemed to be the period needed to learn the job.
The purpose of this policy is to protect the worker at the same time
enable the employer to make a meaningful employee selection. This
purpose should be kept in mind in enforcing this provision of the Code.
This issuance shall take effect immediately.
In the case at bar, it is shown that private respondent Company needs at
least eighteen (18) months to determine the character and selling capabilities
of the petitioners as sales representatives. The Company is engaged in
advertisement and publication in the Yellow Pages of the PLDT Telephone
Directories. Publication of solicited ads are only made a year after the sale
has been made and only then win the company be able to evaluate the
efficiency, conduct, and selling ability of its sales representatives, the
evaluation being based on the published ads. Moreover, an eighteen month
probationary period is recognized by the Labor Union in the private
respondent company, which is Article V of the Collective Bargaining
Agreement,...
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follow that the employer and employee should be forbidden to stipulate any
period of time for the performance of those activities. There is nothing
essentially contradictory between a definite period of an employment
contract and the nature of the employee's duties set down in that contract as
being "usually necessary or desirable in the usual business or trade of the
employer." The concept of the employee's duties as being "usually necessary
or desirable in the usual business or trade of the employer" is not
synonymous with or identical to employment with a fixed term. Logically, THE
DECISIVE DETERMINANT IN TERM EMPLOYMENT SHOULD NOT BE
THE ACTIVITIES THAT THE EMPLOYEE IS CALLED UPON TO
PERFORM, BUT THE DAY CERTAIN AGREED UPON BY THE PARTIES
FOR THE COMMENCEMENT AND TERMINATION OF THEIR
EMPLOYMENT RELATIONSHIP, A DAY CERTAIN BEING UNDERSTOOD
TO BE "THAT WHICH MUST NECESSARILY COME, ALTHOUGH IT MAY
NOT BE KNOWN WHEN." Seasonal employment, and employment for a
particular project are merely instances employment in which a period, where
not expressly set down, necessarily implied.
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There can of course be no quarrel with the proposition that where from
the circumstances it is apparent that periods have been imposed to preclude
acquisition of tenurial security by the employee, they should be struck down
or disregarded as contrary to public policy, morals, etc. But where no such
intent to circumvent the law is shown, or stated otherwise, where the reason
for the law does not exist, e.g., where it is indeed the employee himself who
insists upon a period or where the nature of the engagement is such that,
without being seasonal or for a specific project, a definite date of termination
is a sine qua non, would an agreement fixing a period be essentially evil or
illicit, therefore anathema? Would such an agreement come within the scope
of Article 280 which admittedly was enacted "to prevent the circumvention of
the right of the employee to be secured in . . . (his) employment?"
As it is evident from even only the three examples already given that
Article 280 of the Labor Code, under a narrow and literal interpretation, not
only fails to exhaust the gamut of employment contracts to which the lack of
a fixed period would be an anomaly, but would also appear to restrict, without
reasonable distinctions, the right of an employee to freely stipulate with his
employer the duration of his engagement, it logically follows that such a
literal interpretation should be eschewed or avoided. The law must be given
a reasonable interpretation, to preclude absurdity in its application. Outlawing
the whole concept of term employment and subverting to boot the principle
of freedom of contract to remedy the evil of employer's using it as a means to
prevent their employees from obtaining security of tenure is like cutting off
the nose to spite the face or, more relevantly, curing a headache by lopping
off the head.
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allowances, vacation and sick leaves, holiday pay, and other statutory
requirements. The private respondent argues that there was nothing wrong
with the affidavit because all the affiant acknowledged therein was full
payment of the amount due him under the agreement. Viewed in this light,
such acknowledgment was indeed not necessary at all because this was
already embodied in the vouchers signed by the payee-driver. But the
affidavit, for all its seeming innocuousness, imported more than that. What
was insidious about the document was the waiver the affiant was unwarily
making of the statutory rights due him as an employee of the trucking
company.
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The Court looks with stern disapproval at the contract entered into by the
private respondent with the petitioner (and who knows with how many other
drivers). The agreement was a clear attempt to exploit the unwitting
employee and deprive him of the protection of the Labor Code by making it
appear that the stipulations of the parties were governed by the Civil Code as
in ordinary private transactions. They were not, to be sure. The agreement
was in reality a contract of employment into which were read the provisions
of the Labor Code and the social justice policy mandated by the Constitution.
It was a deceitful agreement cloaked in the habiliments of legality to conceal
the selfish desire of the employer to reap undeserved profits at the expense
of its employees. The fact that the drivers are on the whole practically
unlettered only makes the imposition more censurable and the avarice more
execrable.
(Cielo vs. NLRC [G.R. No. 78693, 28 January 1991])
[T]he two guidelines, by which fixed contracts of employments can be said
NOT to circumvent security of tenure, are either:
1. The fixed period of employment was KNOWINGLY AND
VOLUNTARILY AGREED UPON by the parties, without any force,
duress or improper pressure being brought to bear upon the
employee and absent any other circumstances vitiating his consent;
or:
2. It satisfactorily appears that the employer and employee DEALT
WITH EACH OTHER ON MORE OR LESS EQUAL TERMS with no
moral dominance whatever being exercised by the former on the
latter.
(PNOC vs. NLRC [G.R. No. 97747, 31 March 1993])
15
workers of the private respondent. (Cartagenas vs. Romago Electric [G.R. No.
82973, 1989])
[P]etitioner relies on Policy Instruction No. 20 which was issued by then
Secretary Ople to stabilize employer-employee relations in the construction
industry to support his contention that workers in the construction industry
may now be considered regular employees after their long years of service
with private respondent. The pertinent provision of Policy Instruction No. 20
reads:
Members of a work pool from which a construction company draws
its project employees, if considered employees of the construction
company while in the work pool, are non-project employees or
employees for an indefinite period. If they are employed in a particular
project, the completion of the project or of any phase thereof will not
mean severance of employer-employee relationship.
Respondent Commission correctly observed in its decision that
complainants, one of whom petitioner, failed to consider the requirement in
Policy Instruction No. 20 that to qualify as member of a work pool, the worker
must still be considered an employee of the construction company while in
the work pool. In other words, there must be proof to the effect that petitioner
was under an obligation to be always available on call of private respondent
and that he was not free to offer his services to other employees.
Unfortunately, petitioner miserably failed to introduce any evidence of such
nature during the times when there were no project. (Fernandez vs. NLRC
[G.R. No. 106090, 28 February 1994])
Confidential Employees
Confidential employees are those who (1) ASSIST OR ACT IN A
CONFIDENTIAL CAPACITY, in regard (2) TO PERSONS WHO
FORMULATE, DETERMINE, AND EFFECTUATE MANAGEMENT
POLICIES [specifically in the field of LABOR RELATIONS]. The two criteria
are cumulative, and both must be met if an employee is to be considered a
confidential employee that is, the confidential relationship must exist between
the employee and his superior officer; and that officer must handle the
prescribed responsibilities relating to labor relations. (Sugbuanon Rural
Bank, Inc. vs. Laguesma [G.R. No. 116194, 02 February 2000])
Granting arguendo that an employee has access to confidential labor
relations information but such is merely incidental to his duties and
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COVERAGE
Section 1.
This Executive Order applies to all employees of all branches,
subdivisions, instrumentalities, and agencies, of the Government, including
government-owned or controlled corporations with original charters. For this
purpose, employees, covered by this Executive Order shall be referred to as
"government employees".
Section 2.
All government employees can form, join or assist employees'
organizations of their own choosing for the furtherance and protection of their
interests. They can also form, in conjunction with appropriate government
authorities, labor-management committees, works councils and other forms of
workers' participation schemes to achieve the same objectives.
Section 3.
High-level employees whose functions are normally considered as
policy-making or managerial or whose duties are of a highly confidential nature shall
not be eligible to join the organization of rank-and-file government employees.
Section 4.
The Executive Order shall not apply to the members of the Armed
Forces of the Philippines, including police officers, policemen, firemen and jail
guards.
II.
Section 5.
Government employees shall not be discriminated against in respect
of their employment by reason of their membership in employees' organizations or
participation in the normal activities of their organization. Their employment shall not
be subject to the condition that they shall not join or shall relinquish their
membership in the employees' organizations.
Section 6.
Government authorities shall not interfere in the establishment,
functioning or administration of government employees' organizations through acts
designed to place such organizations under the control of government authority.
III. REGISTRATION OF EMPLOYEES' ORGANIZATION
Section 7.
Government employees' organizations shall register with the Civil
Service Commission and the Department of Labor and Employment. The application
shall be filed with the Bureau of Labor Relations of the Department which shall
18
process the same in accordance with the provisions of the Labor Code of the
Philippines, as amended. Applications may also be filed with the Regional Offices of
the Department of Labor and Employment which shall immediately transmit the said
applications to the Bureau of Labor Relations within three (3) days from receipt
thereof.
Section 8.
Upon approval of the application, a registration certificate be issued
to the organization recognizing it as a legitimate employees' organization with the
right to represent its members and undertake activities to further and defend its
interest. The corresponding certificates of registration shall be jointly approved by
the Chairman of the Civil Service Commission and Secretary of Labor and
Employment.
IV. SOLE AND EXCLUSIVE EMPLOYEES' REPRESENTATIVES
Section 9.
The appropriate organizational unit shall be the employers unit
consisting of rank-and-file employees unless circumstances otherwise require.
Section 10.
The duly registered employees' organization having the support of
the majority of the employees in the appropriate organizational unit shall be
designated as the sole and exclusive representative of the employees.
Section 11.
A duly registered employees' organization shall be accorded
voluntary recognition upon a showing that no other employees' organization is
registered or is seeking registration, based on records of the Bureau of Labor
Relations, and that the said organizations has the majority support of the rank-andfile employees in the organizational unit.
Section 12.
Where there are two or more duly registered employees'
organizations in the appropriate organizational unit, the Bureau of Labor Relations
shall, upon petition, order the conduct of a certification election and shall certify the
winner as the exclusive representative of the rank-and-file employees in said
organization unit.
V.
Section 13.
Terms and conditions of employment or improvements thereof,
except those that are fixed by law, may be the subject of negotiations between duly
recognized employees' organizations and appropriate government authorities.
Government employees. - The terms and conditions of employment of all
government employees, including employees of government-owned and
1)
2)
3)
4)
5)
The Council shall implement and administer the provisions of this Executive
Order. For this purpose, the Council shall promulgate the necessary rules and
regulations to implement this Executive Order.
Since NPDC is a government agency, its employees are covered by civil
service rules and regulations (Sec. 2, Article IX, 1987 Constitution). Its
employees are civil service employees (Sec. 14, Executive Order No. 180).
While NPDC employees are allowed under the 1987 Constitution to
organize and join unions of their choice, there is as yet no law permitting
them to strike. In case of a labor dispute between the employees and the
government, Section 15 of Executive Order No. 180 dated June 1, 1987
provides that the Public Sector Labor-Management Council, not the
Department of Labor and Employment, shall hear the dispute. Clearly, the
Court of Appeals and the lower court erred in holding that the labor dispute
between the NPDC and the members of the NPDSA is cognizable by the
Department of Labor and Employment. (Republic vs. CA [G.R. No. 87676, 20
December 1989])
It is futile for the petitioners to assert that the subject labor dispute falls
within the exclusive jurisdiction of the NLRC and, hence, the Regional Trial
Court had no jurisdiction to issue a writ of injunction enjoining the
continuance of the strike. The Labor Code itself provides that terms and
conditions of employment of government employees shall be governed by
the Civil Service Law, rules and regulations [Art. 276]. More importantly, E.O.
No. 180 vests the Public Sector Labor - Management Council with
jurisdiction over unresolved labor disputes involving government employees
[Sec. 16]. Clearly, the NLRC has no jurisdiction over the dispute.
This being the case, the Regional Trial Court was not precluded, in the
exercise of its general jurisdiction under B.P. Blg. 129, as amended, from
assuming jurisdiction over the SSS's complaint for damages and issuing the
injunctive writ prayed for therein. Unlike the NLRC, the Public Sector Labor Management Council has not been granted by law authority to issue writs of
injunction in labor disputes within its jurisdiction. Thus, since it is the Council,
and not the NLRC, that has jurisdiction over the instant labor dispute, resort
to the general courts of law for the issuance of a writ of injunction to enjoin
the strike is appropriate.
(SSSEA vs. CA [G.R. No. 85279, 28 July 1989])
VIII. SETTLEMENT OF DISPUTES
Section 16.
The Civil Service and labor laws and procedures, whenever
applicable, shall be followed in the resolution of complaints, grievances and cases
involving government employees. In case any dispute remains unresolved after
exhausting all the available remedies under existing laws and procedures, the
parties may jointly refer the dispute to the Council, for appropriate action.
IX. EFFECTIVITY
Section 17.
As to Members of a cooperative
A cooperative, therefore, is by its nature different from an ordinary
business concern being run either, by persons, partnerships or corporations.
Its owners and/or members are the ones who run and operate the business
while the others are its employees. As above stated, irrespective of the name
of shares owned by its members they are entitled to cast one vote each in
deciding upon the affair of the cooperative. Their share capital earn limited
interests, They enjoy special privileges as exemption from income tax and
sales taxes, preferential right to supply their products to State agencies and
even exemption from minimum wage laws.
An employee therefore of such a cooperative who is a member and coowner thereof cannot invoke the right to collective bargaining for certainly an
owner cannot bargain with himself or his co-owners. In the opinion of August
14, 1981 of the Solicitor General, he corectly opined that employees of
cooperatives who are themselves members of the cooperative have no right
to form or join labor organizations for purposes of collective bargaining for
being themselves co-owners of the cooperative.
However, in so far as it involves cooperatives with employees who are
not members or co-owners thereof, certainly such employees are entitled to
exercise the rights of all workers to organization, collective bargaining,
negotiations and others as are enshrined in the Constitution and existing
laws of the country.
(Cooperative Rural Bank of Davao City vs. Ferrer-Calleja [G.R. No. 77951,
26 September 1988]
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As to Managerial Employees
Ineligibility of managerial employees to join any labor
organization; right of supervisory employees. - Managerial
employees are not eligible to join, assist or form any labor
organization. Supervisory employees shall not be eligible for
membership in a labor organization of the rank-and-file employees
but may join, assist or form separate labor organizations of their own.
(Article 245 of the Labor Code)
The reasons for the disqualification of a managerial employee from
joining or assisting a labor organization is applied also to confidential
employees thru the doctrine of necessary implication, wherein the SC took
into consideration the rationale behind the disqualification of managerial
employees expressed in Bulletin Publishing Corporation v. Sanchez, thus: "...
if these managerial employees would belong to or be affiliated with a Union,
the latter might not be assured of their loyalty to the Union in view of evident
conflict of interests. The Union can also become company-dominated with
the presence of managerial employees in Union membership." In the
collective bargaining process, managerial employees are supposed to be on
the side of the employer, to act as its representatives, and to see to it that its
interests are well protected. The employer is not assured of such protection if
these employees themselves are union members. Collective bargaining in
such a situation can become one-sided. Unionization of confidential
employees for the purpose of collective bargaining would mean the
extension of the law to persons or individuals who are supposed to act "in
the interest of" the employers. It is not farfetched that in the course of
collective bargaining, they might jeopardize that interest which they are dutybound to protect. (NATU-RPB vs. Torres [G.R. No. 93468, 29 December
1994])
As to Confidential Employees
We have decreed as disqualified from bargaining with management in
case of Bulletin Publishing Co. Inc. vs. Hon. Augusto Sanchez (144 SCRA
628) reiterating herein the rationale for such ruling as follows: if these
managerial employees would belong to or be affiliated with a Union, the latter
might not be assured of their loyalty to the Union in view of evident conflict of
interests or that the Union can be company-dominated with the presence of
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The prohibition against a supervisors' union joining a local union of rankand-file is replete with jurisprudence. The Court emphasizes that the
limitation is not confined to a case of supervisors wanting to join a rank-andfile local union. The prohibition extends to a supervisors' local union applying
for membership in a national federation the members of which include local
unions of rank-and-file employees. The intent of the law is clear especially
where, as in the case at bar, the supervisors will be co-mingling with those
employees whom they directly supervise in their own bargaining unit. (Atlas
Lithographic vs. Laguesma [205 SCRA])
As to Security Guards
Section 6 of E.O. No. 111, enacted on 24 December 1986, repealed the
original provisions of Article 245 of the Labor Code, reading as follows:
Art. 245. Ineligibility of security personnel to join any labor
organization. Security guards and other personnel employed for
the protection and security of the person, properties and premises
of the employer shall not be eligible for membership, in any labor
organization.
and substituted it with the following provision:
Art. 245.
Right of employees in the public service.
By virtue of such repeal and substitution, security guards became eligible
for membership in any labor organization. (Philips Industrial vs. NLRC [G.R.
No. 88957, 25 June 1992])
Right to Unionize vs. Freedom of Religion
Both the Constitution and Republic Act No. 875 recognize freedom of
association. Section 1 (6) of Article III of the Constitution of 1935, as well as
Section 7 of Article IV of the Constitution of 1973, provide that the right to
form associations or societies for purposes not contrary to law shall not be
abridged. Section 3 of Republic Act No. 875 provides that employees shall
have the right to self-organization and to form, join of assist labor
organizations of their own choosing for the purpose of collective bargaining
and to engage in concerted activities for the purpose of collective bargaining
and other mutual aid or protection. What the Constitution and the Industrial
Peace Act recognize and guarantee is the "right" to form or join associations.
Notwithstanding the different theories propounded by the different schools of
jurisprudence regarding the nature and contents of a "right", it can be safely
said that whatever theory one subscribes to, a right comprehends at least
two broad notions, namely: first, LIBERTY OR FREEDOM, i.e., the absence
of legal restraint, whereby an employee may act for himself without being
prevented by law; and second, POWER, whereby an employee may, as he
pleases, join or refrain from Joining an association. It is, therefore, the
employee who should decide for himself whether he should join or not an
association; and should he choose to join, he himself makes up his mind as
to which association he would join; and even after he has joined, he still
retains the liberty and the power to leave and cancel his membership with
said organization at any time. It is clear, therefore, that the RIGHT TO JOIN A
UNION INCLUDES THE RIGHT TO ABSTAIN FROM JOINING ANY UNION.
Inasmuch as what both the Constitution and the Industrial Peace Act have
recognized, and guaranteed to the employee, is the "right" to join
associations of his choice, it would be absurd to say that the law also
imposes, in the same breath, upon the employee the duty to join
associations. The law does not enjoin an employee to sign up with any
association.
The right to refrain from joining labor organizations recognized by Section
3 of the Industrial Peace Act is, however, limited. The legal protection
granted to such right to refrain from joining is withdrawn by operation of law,
where a labor union and an employer have agreed on a closed shop, by
virtue of which the employer may employ only member of the collective
bargaining union, and the employees must continue to be members of the
union for the duration of the contract in order to keep their jobs. Thus Section
4 (a) (4) of the Industrial Peace Act, before its amendment by Republic Act
No. 3350, provides that although it would be an unfair labor practice for an
employer "to discriminate in regard to hire or tenure of employment or any
term or condition of employment to encourage or discourage membership in
any labor organization" the employer is, however, not precluded "from
making an agreement with a labor organization to require as a condition of
23
agreement shall not cover members of any religious sects which prohibit
affiliation of their members in any such labor organization". (Victoriano vs.
Elizalde [G.R. No. L-25246, 12 September 1974])
Bargaining Unit
A "bargaining unit" has been defined as a group of employees of a given
employer, comprised of all or less than all of the entire body of employees,
which the collective interest of all the employees, consistent with equity to
the employer, indicate to be the best suited to serve the reciprocal rights and
duties of the parties under the collective bargaining provisions of the law.
(University of the Philippines vs. Ferrer-Calleja [G.R. No. 96189, 14 July
1992])
(1)
(2)
(3)
(4)
(5)
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LABOR ORGANIZATIONS
Labor Organization,
"Labor organization" means any union or association of employees
which exists in whole or in part for the purpose of collective
bargaining or of dealing with employers concerning terms and
conditions of employment. (Article 212 (g) of the Labor Code)
Legitimate Labor Organization,
"Legitimate labor organization" means any labor organization duly
registered with the Department of Labor and Employment, and
includes any branch or local thereof. (Article 212 (h) of the Labor
Code)
Registration Requirement
In PAFLU vs. Sec. of Labor, 27 SCRA 40, We had occasion to interpret
Section 23 of R.A. No. 875 (Industrial Peace Act) requiring of labor unions
25
(c) The names of all its members comprising at least twenty 20%
percent of all the employees in the bargaining unit where it seek
to operate;
(d) If the applicant has been in existence for one or more years,
copies , of its annual financial reports; and
(e) Four copies of the constitution and by-laws of the applicant union,
the minutes of its adoption or ratification and the list of the
members who participated in it.
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When the Constitution and by-laws of both unions dictated the remedy for
intra-union dispute, such as petitioner's complaint against private respondents
for unauthorized or illegal disbursement of unions funds, this should be resorted
to before recourse can be made to the appropriate administrative or judicial
body, not only to give the grievance machinery or appeals' body of the union the
opportunity to decide the matter by itself, but also to prevent unnecessary and
premature resort to administrative or judicial bodies. Thus, a party with an
administrative remedy must not merely initiate the prescribed administrative
procedure to obtain relief, but also pursue it to its appropriate conclusion before
seeking judicial intervention. This rule clearly applies to the instant case. The
underlying principle of the rule on exhaustion of administrative remedies rests on
the presumption that when the administrative body, or grievance machinery, as
in this case, is afforded a chance to pass upon the matter, it will decide the same
correctly. Petitioner's premature invocation of public respondent's intervention is
fatal to his cause of action.
Evidently, when petitioner brought before the DOLE his complaint charging
private respondents with unauthorized and illegal disbursement of union funds,
he overlooked or deliberately ignored the fact that the same is clearly dismissible
for non-exhaustion of administrative remedies. Thus, public respondent
Bienvenido E. Laguesma, in dismissing petitioner's complaint, committed no
grave abuse of discretion.
(Diamonon vs. DOLE [G.R. No. 108951, 07 March 2000])
Right of Local to Disaffiliate from the Federation
The right of a local union to disaffiliate from its mother federation is wellsettled. A local union, being a separate and voluntary association, is free to
serve the interest of all its members including the freedom to disaffiliate when
circumstances warrant. This right is consistent with the constitutional
guarantee of freedom of association (Volkschel Labor Union v. Bureau of
Labor Relations, No. L-45824, June 19, 1985, 137 SCRA 42).
26
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xxx
The inclusion of the word NATU after the name of the local union THEU
in the registration with the Department of Labor is merely to stress that the
THEU is NATU's affiliate at the time of the registration. It does not mean that
the said local union cannot stand on its own. Neither can it be interpreted to
mean that it cannot pursue its own interests independently of the federation.
A local union owes its creation and continued existence to the will of its
members and not to the federation to which it belongs.
When the local union withdrew from the old federation to join a new
federation, it was merely exercising its primary right to labor organization for
the effective enhancement and protection of common interests. In the
absence of enforceable provisions in the federation's constitution preventing
disaffiliation of a local union a local may sever its relationship with its parent
(People's Industrial and Commercial Employees and Workers Organization
(FFW) v. People's Industrial and Commercial Corporation, No. 37687, March
15, 1982, 112 SCRA 440).
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Further, there is no merit in the contention of the respondents that the act
of disaffiliation violated the union security clause of the CBA and that their
dismissal as a consequence thereof is valid. A perusal of the collective
bargaining agreements shows that the THEU-NATU, and not the NATU
federation, was recognized as the sole and exclusive collective bargaining
agent for all its workers and employees in all matters concerning wages,
hours of work and other terms and conditions of employment (pp. 667-706,
Rollo). Although NATU was designated as the sole bargaining agent in the
check-off authorization form attached to the CBA, this simply means it was
acting only for and in behalf of its affiliate. The NATU POSSESSED THE
STATUS OF AN AGENT WHILE THE LOCAL UNION REMAINED THE
BASIC PRINCIPAL UNION WHICH ENTERED INTO CONTRACT WITH
THE RESPONDENT COMPANY. When the THEU disaffiliated from its
mother federation, the former did not lose its legal personality as the
bargaining union under the CBA. (Tropical Hut Employees Union vs. Tropical
Hut [181 SCRA 173, 1990])
CERTIFICATION ELECTIONS
Nature of
It is thus of the very essence of the regime of industrial democracy
sought to be attained through the collective bargaining process that there be
no obstacle to the freedom Identified with the exercise of the right to selforganization. Labor is to be represented by a union that can express its
collective will. In the event, and this is usually the case, that there is more
than one such group fighting for that privilege, a certification election must be
conducted. That is the teaching of a recent decision, under the new Labor
Code, United Employees Union of Gelmart Industries v. Noriel. There is this
relevant excerpt: "The institution of collective bargaining is, to recall Cox a
prime manifestation of industrial democracy at work. The two parties to the
relationship, labor and management, make their own rules by coming to
terms. That is to govern themselves in matters that really count. As labor,
however, is composed of a number of individuals, it is indispensable that they
be represented by a labor organization of their choice. Thus may be
discerned how crucial is a certification election. So our decisions from the
earliest case of PLDT Employees Union v. PLDT Co. Free Telephone
Workers Union to the latest, Philippine Communications Electronics &
Electricity Workers' Federation (PCWF) v. Court of Industrial Relations, have
made clear." An even later pronouncement in Philippine Association of Free
Labor Unions v. Bureau of Labor Relations speaks similarly: "Petitioner thus
appears to be woefully lacking in awareness of the significance of a
certification election for the collective bargaining process. It is the fairest and
most effective way of determining which labor organization can truly
represent the working force. It is a fundamental postulate that the will of the
majority, if given expression in an honest election with freedom on the part of
the voters to make their choice, is controlling. No better device can assure
the institution of industrial democracy with the two parties to a business
enterprise, management and labor, establishing a regime of self rule."
(FOITAF vs. Noriel [G.R. No. L-41937, 06 July 1976])
In any case, this Court notes that it is petitioner, the employer, which has
offered the most tenacious resistance to the holding of a certification election
among its monthly-paid rank-and-file employees. This must not be so, for the
choice of a collective bargaining agent is the sole concern of the employees.
The only exception to this rule is where the employer has to file the petition
for certification election pursuant to Article 258 of the Labor Code because it
was requested to bargain collectively, which exception finds no application in
the case before us. Its role in a certification election has aptly been described
in Trade Unions of the Philippines and Allied Services (TUPAS) v. Trajano, as
that of a mere by-stander. It has no legal standing in a certification election
as it cannot oppose the petition or appeal the Med-Arbiter's orders related
27
Voluntary Recognition
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Withal, neither the quoted provision nor any other in the Omnibus
Implementing Rules expressly bars the inclusion of the choice of "NO
UNION" in the ballots. Indeed it is doubtful if the employee's alternative right
NOT to form, join or assist any labor organization or withdraw or resign from
one may be validly eliminated and he be consequently coerced to vote for
one or another of the competing unions and be represented by one of them.
Besides, the statement in the quoted provision that "(i)f only one union is
involved, the voter shall make his cross or check in the square indicating
"YES" or "NO," is quite clear acknowledgment of the alternative possibility
that the "NO" votes may outnumber the "YES" votes indicating that the
certification election. The law refers to "all" the employees in the bargaining
unit. All they need to be eligible to support the petition is to belong to the
"bargaining unit." (Airtime Specialists, Inc. vs. Ferrer-Calleja [G.R. No.
80612-16, 29 December 1989])
At any rate, it is now well-settled that employees who have been
improperly laid off but who have a present, unabandoned right to or
expectation of re-employment, are eligible to vote in certification elections.
Thus, and to repeat, if the dismissal is under question, as in the case now at
bar whereby a case of illegal dismissal and/or unfair labor practice was filed,
the employees concerned could still qualify to vote in the elections. (Phil.
Fruits And Vegetables vs. Torres [G.R. No. 92391, 03 July 1992])
Close of Election Proceedings
[T]he phrase "close of election proceedings" as used in Sections 3 and 4
of the pertinent Implementing Rules refers to that period from the closing of
the polls to the counting and tabulation of the votes as it could not have been
the intention of the Implementing Rules to include in the term "close of the
election proceedings" the period for the final determination of the challenged
votes and the canvass thereof, as in the case at bar which may take a very
long period. Thus, if a protest can be formalized within five days after a final
determination and canvass of the challenged votes have been made, it
would result in an undue delay in the affirmation of the employees'
expressed choice of a bargaining representative. (Phil. Fruits and Vegetables
vs. Torres [G.R. No. 92391, 03 July 1992])
Bars to Certification Election
(1) CONTRACT BAR RULE - during the existence of a collective bargaining
agreement except within the freedom period;
This rule simply provides that a petition for certification election or a
motion for intervention can only be entertained within sixty days prior to the
expiry date of an existing collective bargaining agreement. Otherwise put, the
rule prohibits the filing of a petition for certification election during the
existence of a collective bargaining agreement except within the freedom
period, as it is called, when the said agreement is about to expire. The
purpose, obviously, is to ensure stability in the relationships of the workers
and the management by preventing frequent modifications of any collective
bargaining agreement earlier entered into by them in good faith and for the
stipulated original period. (ALU-TUCP v. Trajano, G.R. No. 77539, April 12,
1989, 172 SCRA 49, citing ATU v. Trajano, G.R. No. L-75321, 20 June 1988,
162 SCRA 318)
In order to allow the employer to validly suspend the bargaining process
theremust be a valid petition for certification election raising a legitimate
representation issue. Hence, mere filing of a petition for certification election
does not ipso facto justify the negotiation by the employer. The petition must
comply with the provisions of the Labor Code and its Implementing Rules.
Foremost is that a petition for certification election must be filed during the
sixty day freedom period. The Contract Bar Rule under Section 3, Rule XI,
Book V, of the Omnibus Rules Implementing the Labor Code, provides that:
. If a collective bargaining agreement has been duly registered in
accordance with Article 231 of the Code, a petition for certification election or
motion for intervention can only be entertained within sixty (60) days prior to
the expiry date of such agreement. The rule is based on Article 232, in
relation to Articles 253, 253-A and 256 of the Labor Code. No petition for
certification election for any representation issue may be filed after the lapse
of the sixty-day freedom period. The old CBA is extended until a new CBA
shall have been validly executed. Hence, the contract bar rule still applies.
The purpose is to ensure stability in the relationship of the workers and the
company by preventing frequent modifications of any CBA earlier entered
into by them in good faith and for the stipulated original period. (Colegio de
San Juan de Letran vs. Association of Employees and Faculty of Letran
[G.R. No. 14171, 18 September 2000])
[A] contract does not operate as a bar to representation proceedings,
where it is shown that because of a schism in the union the contract can no
longer serve to promote industrial stability, and the direction of the election is
in the interest of industrial stability as well as in the interest of the employees'
right in the selection of their bargaining representatives. Basic to the contract
bar rule is the proposition that the delay of the right to select representatives
can be justified only where stability is deemed paramount. Excepted from the
contract bar rule are certain types of contracts which do not foster industrial
stability, such as contracts where the Identity of the representative is in
doubt. Any stability derived from such contracts must be subordinated to the
employees' freedom of choice because it does not establish the type of
industrial peace contemplated by the law. (Firestone Tire & Rubber Company
Employees Union vs. Estrella [G.R. No. L-45513-14, 06 January 1978])
30
(2) CERTIFICATION YEAR BAR RULE - within one (1) year from the date of
issuance of declaration of a final certification election result; or
It is evident that the prohibition imposed by law on the holding of a
certification election "within one year from the date of issuance of declaration
of a final certification election result in this case, from February 27, 1981, the
date of the Resolution declaring NAFLU the exclusive bargaining
representative of rank-and-file workers of VIRON can have no application to
the case at bar. That one-year period-known as the "certification year" during
which the certified union is required to negotiate with the employer, and
certification election is prohibited has long since expired. (Kaisahan Ng
Manggagawang vs. Trajano [G.R. No. 75810, 09 September 1991])
(3) DEADLOCK BAR RULE - during the existence of a bargaining deadlock to
which an incumbent or certified bargaining agent is a party and which had
been submitted to conciliation or arbitration or had become the subject of a
valid notice of strike or lockout.
A "deadlock" is defined as the "counteraction of things producing entire
stoppage: a state of inaction or neutralization caused by the opposition of
persons or of factions (as in government or a voting body): standstill." There
is a deadlock if there is a "complete blocking or stoppage resulting from the
action of equal and opposed forces; as, the deadlock of a jury or legislature."
The word is synonymous with the word impasse which, within the meaning of
the American federal labor laws, "presupposes reasonable efforts at good
faith bargaining which, despite noble intentions, does not conclude in a
agreement between the parties." (Divine Word University of Tacloban vs.
Secretary [G. R. No. 91915, 11 September 1992])
The Deadlock Bar Rule simply provides that a petition for certification
election can only be entertained if there is no pending bargaining deadlock
submitted to conciliation or arbitration or had become the subject of a valid
notice of strike or lockout. The principal purpose is to ensure stability in the
relationship of the workers and the management. (NACUSIP-TUCP vs.
Trajano [G.R. No. L-67485, 10 April 1992])
Prejudicial Question; When applicable to certification election proceedings
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The case at bar is not a case of first impression, for in the Herald
Delivery Carriers Union (PAFLU) vs. Herald Publications the rule had been
laid down that "unfair labor practice is committed when it is shown that the
respondent employer, after having been served with a written bargaining
proposal by the petitioning Union, did not even bother to submit an answer or
reply to the said proposal. This doctrine was reiterated anew in Bradman vs.
CIR wherein it was further ruled that "while the law does not compel the
parties to reach an agreement, it does contemplate that both parties will
approach the negotiation with an open mind and make a reasonable effort to
reach a common ground of agreement.
(Kiok Loy vs. NLRC [G.R. No. L-54334, 22 January 1986])
It is essential to the right of a putative bargaining agent to represent the
employees that it be the delegate of a majority of the employees and,
conversely, an employer is under duty to bargain collectively only when the
bargaining agent is representative of the majority of the employees. A natural
consequence of these principles is that the employer has the right to demand
of the asserted bargaining agent proof of its representation of its employees.
Having the right to demonstration of this fact, it is not an 'unfair labor practice'
for an employer to refuse to negotiate until the asserted bargaining agent
has presented reasonable proof of majority representation. It is necessary
however, that such demand be made in good faith and not merely as a
pretext or device for delay or evasion. The employer's right is however to
reasonable proof. ...
minds of the parties, which was before the February 1993 end of the six-month
period provided in Art. 253-A.
The fact that no agreement was then signed is of no moment. Art. 253-A
refers merely to an "agreement" which, according to Black's Law Dictionary
is "a coming together of minds; the coming together in accord of two minds
on a given proposition." This is similar to Art. 1305 of the Civil Code's
definition of "contract" as "a meeting of minds between two persons."
The two terms, "agreement" and "contract," are indeed similar, although
the former is broader than the latter because an agreement may not have all
the elements of a contract. As in the case of contracts, however, agreements
may be oral or written. Hence, even without any written evidence of the CBA
made by the parties, a valid agreement existed in this case from the moment
the minds of the parties met on all matters they set out to discuss.
(Mindanao Terminal & Brokerage vs. Roldan-Confessor [G.R. No. 111809,
05May 1997])
The Court in the January 27, 1999 Decision, stated that the CBA shall be
"effective for a period of 2 years counted from December 28, 1996 up to
December 27, 1999." Parenthetically, this actually covers a three-year
period. Labor laws are silent as to when an arbitral award in a labor dispute
where the Secretary had assumed jurisdiction by virtue of Article 263 (g) of
the Labor Code shall retroact. In general, a CBA negotiated within six months
after the expiration of the existing CBA retroacts to the day immediately
following such date and if agreed thereafter, the effectivity depends on the
agreement of the parties. On the other hand, the law is silent as to the
retroactivity of a CBA arbitral award or that granted not by virtue of the
mutual agreement of the parties but by intervention of the government.
Despite the silence of the law, the Court rules herein that CBA arbitral
awards granted after six months from the expiration of the last CBA shall
retroact to such time agreed upon by both employer and the employees or
their union. Absent such an agreement as to retroactivity, the award shall
retroact to the first day after the six-month period following the expiration of
the last day of the CBA should there be one. In the absence of a CBA, the
Secretary's determination of the date of retroactivity as part of his
discretionary powers over arbitral awards shall control.
It is true that an arbitral award cannot per se be categorized as an
agreement voluntarily entered into by the parties because it requires the
interference and imposing power of the State thru the Secretary of Labor
when he assumes jurisdiction. However, the arbitral award can be
considered as an approximation of a collective bargaining agreement which
would otherwise have been entered into by the parties. The terms or periods
set forth in Article 253-A pertains explicitly to a CBA. But there is nothing that
would prevent its application by analogy to an arbitral award by the Secretary
considering the absence of an applicable law. Under Article 253-A: "(I)f any
such agreement is entered into beyond six months, the parties shall agree on
the duration of retroactivity thereof." In other words, the law contemplates
retroactivity whether the agreement be entered into before or after the said
six-month period. The agreement of the parties need not be categorically
stated for their acts may be considered in determining the duration of
retroactivity. In this connection, the Court considers the letter of petitioner's
Chairman of the Board and its President addressed to their stockholders,
which states that the CBA "for the rank-and-file employees covering the
period December 1, 1995 to November 30, 1997 is still with the Supreme
Court," as indicative of petitioner's recognition that the CBA award covers the
said period. Earlier, petitioner's negotiating panel transmitted to the Union a
copy of its proposed CBA covering the same period inclusive. In addition,
petitioner does not dispute the allegation that in the past CBA arbitral
awards, the Secretary granted retroactivity commencing from the period
immediately following the last day of the expired CBA. Thus, by petitioner's
own actions, the Court sees no reason to retroact the subject CBA awards to
a different date. The period is herein set at two (2) years from December 1,
1995 to November 30, 1997.
(MERALCO vs. Quisumbing [G.R. No. 127598, 22 February 2000])
Effect of Failure to Bargain Collectively
A thorough study of the records reveals that there was no "reasonable
effort at good faith bargaining" specially on the part of the University. Its
indifferent towards collective bargaining inevitably resulted in the failure of
the parties to arrive at an agreement. As it was evident that unilateral moves
were being undertaken only by the DWUEU-ALU, there was no
"'counteraction" of forces or an impasse to speak of. While collective
bargaining should be initiated by the union, there is a corresponding
responsibility on the part of the employer to respond in some manner to such
acts. This is a clear from the provisions of the Labor Code Art 250(a) of
which states:
xxx
xxx
xxx
case of Kiok Loy v. NLRC, where we upheld the order of the NLRC declaring
the unions draft CBA proposal as the collective agreement which should
govern the relationship between the parties. Kiok Loy v. NLRC is applicable
in the instant case considering that the fact therein have also been
indubitably established in this case. These factors are: (a) the union is the
duly certified bargaining agent; (b) it made a definite request to bargain
submitted its collective bargaining proposals, and (c) the University made no
further proposal whatsoever. As we said in Kiok Loy v. NLRC, [a] company's
refusal to make counter proposal if considered in relation to the entire
bargaining process, may indicate bad faith and this is especially true where
the Union's request for a counter proposal is left unanswered." Moreover, the
Court added in the same case that "it is not obligatory upon either side of a
labor controversy to precipitately accept or agree to the proposal of the other.
But an erring party should not be tolerated and allowed with impunity to
resort to schemes feigning negotiations by going through empty gestures."
(Divine Word University of Tacloban vs. Secretary [G. R. No. 91915, 11
September 1992])
Any provision in the CBA is deemed to be a bilateral agreement, hence subject
to negotiation
The company's contention that its retirement plan is non-negotiable, is
not well-taken. The NLRC correctly observed that the inclusion of the
retirement plan in the collective bargaining agreement as part of the package
of economic benefits extended by the company to its employees to provide
them a measure of financial security after they shall have ceased to be
employed in the company, reward their loyalty, boost their morale and
efficiency and promote industrial peace, gives "A CONSENSUAL
CHARACTER" to the plan so that it may not be terminated or modified at will
by either party (Nestle Phil., Inc. vs. NLRC [G.R. No. 91231, 04 February
1991]
ADMINISTRATION OF THE CBA; GRIEVANCE AND VOLUNTARY ARBITRATION
COMPULSORY ARBITRATION is a system whereby the parties to a
dispute are compelled by the government to forego their right to strike and
are compelled to accept the resolution of their dispute through arbitration by
a third party. The essence of arbitration remains since a resolution of a
dispute is arrived at by resort to a disinterested third party whose decision is
final and binding on the parties, but in compulsory arbitration, such a third
party is normally appointed by the government.
in the unit concerned." If it were otherwise, the highly salutory purpose and
objective of the collective bargaining scheme to enable labor to secure better
terms in employment condition as well as rates of pay would be frustrated
insofar as non-members are concerned, deprived as they are of participation
in whatever advantages could thereby be gained. The labor union that gets
the majority vote as the exclusive bargaining representative does not act for
its members alone. It represents all the employees in such a bargaining unit.
It is not to be indulged in any attempt on its part to disregard the rights of
non-members. Yet that is what intervenor labor union was guilty of, resulting
in the complaint filed on behalf of the laborers, who were in the ranks of
plaintiff Mactan Labor Union. (Mactan Workers Union vs. Don Ramon Aboitiz
[G.R. No. L-30241, 1972])
inter alios nec prodest nec nocet. (Benguet vs. BCI Employees [G.R. No. L24711, 30 April 1968])
37
[T]he award of a Voluntary Arbitrator is final and executory after ten (10)
calendar days from receipt of the award by the parties. There was a time
when the award of a Voluntary Arbitrator relating to money claims amounting
to more than P 100,000.00 or forty percent (40%) of the paid-up capital of the
employer (whichever was lower), could be appealed to the National Labor
Relations Commission upon the grounds of (a) abuse of discretion; or (b)
gross incompetence, presumably of the arbitrator. This is no longer so today
although, of course, certiorari will lie in appropriate cases. A petition for
certiorari under Rule 65 of the Revised Rules of Court will lie only where a
grave abuse of discretion or an act without or in excess of jurisdiction on the
part of the Voluntary Arbitrator is clearly shown. It must be borne in mind that
the writ of certiorari is an extraordinary remedy and that certiorari jurisdiction
is not to be equated with appellate jurisdiction. In a special civil action of
certiorari, the Court will not engage in a review of the facts found nor even of
the law as interpreted or applied by the Arbitrator unless the supposed errors
of fact or of law are so patent and gross and prejudicial as to amount to a
grave abuse of discretion or an excess de pouvoir on the part of the
Arbitrator. The Labor Code and its Implementing Rules thus clearly reflect
the important public policy of encouraging recourse to voluntary arbitration
and of shortening the arbitration process by rendering the arbitral award nonappealable to the NLRC. The result is that a voluntary arbitral award may be
modified and set aside only upon the same grounds on which a decision of
the NLRC itself may be modified or set aside, by this Court. (Sime Darby vs.
Magsalin [G.R. No. 90426, 15 December 1989])
The Union erred in filing a motion for reconsideration of the decision
dated July 12, 1988. So did the respondent Voluntary Arbitrator in
entertaining the motion and vacating his first decision.
When the parties submitted their grievance to arbitration, they expressly
agreed that the decision of the Voluntary Arbitrator would be final, executory
and inappealable. In fact, even without this stipulation, the first decision had
already become so by virtue of Article 263 of the Labor Code making
voluntary arbitration awards or decisions final and executory. (Imperial Textile
Mills, Inc. vs. Sampang [G.R. No. 94960, 08 March 1993])
Levy;Check-Off
A check-off is a process or device whereby the employer, on agreement
with the union recognized as the proper bargaining representative, or on
prior authorization from its employees, deducts union dues or agency fees
from the latter's wages and remits them directly to the union. Its desirability
to the union for the aggregate of dues or assessments uncollected from the
union members, or agency fees for non-union employees.
Check-offs in truth impose an extra burden on the employer in the form of
additional administrative and bookkeeping costs. It is a burden assumed by
management at the instance of the union and for its benefit, in order to
facilitate the collection of dues necessary for the latter's life and sustenance.
But the obligation to pay union dues and agency fees obviously devolves not
upon the employer, but the individual employee. It is a personal obligation
not demandable from the employer upon default or refusal of the employee
to consent to a check-off. The only obligation of the employer under a checkoff is to effect the deductions and remit the collections to the union. The
principle of unjust enrichment necessarily precludes recovery of union dues
or agency fees from the employer, these being, to repeat, obligations
pertaining to the individual worker in favor of the bargaining union. Where the
employer fails or refuses to implement a check-off agreement, logic and
prudence dictate that the union itself undertake the collection of union dues
and assessments from its members (and agency fees from non-union
employees); this, of course, without prejudice to suing the employer for unfair
labor practice. Holy Cross of Davao vs. Joaquin [G.R. No. 110007, 18
October 1996])
Art. 241 has three (3) requisites for the validity of the special assessment
for union's incidental expenses, attorney's fees and representation expenses.
These are:
(1) authorization by a written resolution of the majority of all the
members at the general membership meeting called for the
purpose;
(2) secretary's record of the minutes of the meeting; and
(3) individual written authorization for check off duly signed by the
employees concerned.
(Gabriel vs. Secretary [G.R. No. 115949, 16
March 2000])
Article
241 [n]
Provision
No special assessment or other
extraordinary fees may be levied upon
the members of a labor organization
unless authorized by a written resolution
of a majority of all the members at a
general membership meeting duly called
Requisites
A levy/special assessment
via a written resolution of
the majority of all the
members in a general
membership meeting duly
called for the purpose with
241 [o]
222 [b]
should have reasonably satisfied itself by its own inquiry that the Union had
not been merely acting arbitrarily and capriciously in impeaching and
expelling petitioner Cario. From what was already discussed above, it is
quite clear that had the Company taken the trouble to investigate the acts
and proceedings of the Union, it could have very easily determined that the
Union had not acted arbitrarily in impeaching and expelling from its ranks
petitioner Cario. The Company offered the excuse that the Union had
threatened to go on strike if its request had not been forthwith granted.
Assuming that such a threat had in fact been made, if a strike was in fact
subsequently called because the Company had insisted on conducting its
own inquiry, the Court considers that such would have been prima facie an
illegal strike. The Company also pleaded that for it to inquire into the
lawfulness of the acts of the Union in this regard would constitute
interference by the Company in the administration of Union affairs. We do
not believe so.
xxx
xxx
xxx
5.
We conclude that the Company had failed to accord to petitioner
Cario the latter's right to procedural due process. The right of an employee
to be informed of the charges against him and to reasonable opportunity to
present his side in a controversy with either the Company or his own Union,
is not wiped away by a Union Security Clause or a Union Shop Clause in a
CBA. An employee is entitled to be protected not only from a company which
disregards his rights but also from his own Union the leadership of which
could yield to the temptation of swift and arbitrary expulsion from
membership and hence dismissal from his job. (Cario vs. NLRC [G.R. No.
91086, 08 May 1990])
UNFAIR LABOR PRACTICE
Of Employers
Indeed, it is an unfair labor practice for an employer operating under a
collective bargaining agreement to negotiate or to attempt to negotiate with
his employees individually in connection with changes in the agreement. And
the basis of the prohibition regarding individual bargaining with the strikers is
that although the union is on strike, the employer is still under obligation to
bargain with the union as the employees' bargaining representative (Melo
Photo Supply Corporation vs. National Labor Relations Board, 321 U.S.
332).
xxx
xxx
xxx
have been divided equally as it has been done before. Aside from the
Christmas bonus of 50% that was allocated to the Manila Hotel employees,
some of them were granted year-end bonus while the employees of the
Pines Hotel did not receive any year-end bonus. This is a clear case of
discrimination, it appearing that there is no union at the Manila Hotel or the
Taal Vista Lodge and considering further that lately respondents had always
been beset with demands for better living conditions from the complainant
union as well as strikes being staged by the union." (Manila Hotel Co. vs.
CIR, [G.R. No. L-30139, 28 September 1972])
Under the CBA between the parties that was in force and effect from May
1, 1985 to April 30,1988 it was agreed that the "bargaining unit" covered by
the CBA "consists of all regular or permanent employees, below the rank of
assistant supervisor, Also expressly excluded from the term "appropriate
bargaining unit" are all regular rank and file employees in the office of the
president, vice-president, and the other offices of the company personnel
office, security office, corporate affairs office, accounting and treasurer
department .
It is to this class of employees who were excluded in the "bargaining unit"
and who do not derive benefits from the CBA that the profit sharing privilege
was extended by petitioner.
There can be no discrimination committed by petitioner thereby as the
situation of the union employees are different and distinct from the non-union
employees. Indeed, discrimination per se is not unlawful. There can be no
discrimination where the employees concerned are not similarly situated.
(Wise & Co., Inc., vs. Wise & Co. Employees Union [G.R. No. L-87672, 13
October 1989])
The case before us does not pertain to any controversy involving
discrimination of employees but only the issue of whether the change of work
schedule, which management deems necessary to increase production,
constitutes unfair labor practice. As shown by the records, the change
effected by management with regard to working time is made to apply to all
factory employees engaged in the same line of work whether or not they are
members of private respondent union. Hence, it cannot be said that the new
scheme adopted by management prejudices the right of private respondent
to self-organization.
xxx
xxx
xxx
42
While the Constitution is committed to the policy of social justice and the
protection of the working class, it should not be supposed that every dispute
will be automatically decided in favor of labor. Management also has rights
which, as such, are entitled to respect and enforcement in the interest of
simple fair play. Although this Court has inclined more often than not toward
the worker and has upheld his cause in his conflicts with the employer, such
favoritism has not blinded the Court to the rule that justice is in every case for
the deserving, tobe dispensed in the light of the established facts and the
applicable law and doctrine.
(Sime Darby Pilipinas, Inc. vs. NLRC [G.R. No. 119205, 15 April 1998])
Petitioner's appeal must be dismissed. It is speciously grounded on mere
form rather than the realities of the case. In form, respondent court gently
treated petitioner's scheme to deprive the fifteen drivers and helpers of their
rightful status as employees and did not denounce it as a betrayal of the
salutary purpose and objective of the Industrial Peace Act, but instead
remarked that since the grant of employees' benefits hinged on the court's
decision on their status as such employees, petitioner "could not have been
guilty of refusal to bargain in accordance with the Act." The reality, however,
is that respondent court expressly found that "in truth and in fact, (petitioner)
corporation is the "employer" of the driver or helper and not the salesman or
propagandist who is merely expressly authorized by the former to engage
such services." Petitioner's failure to comply with its duty under the collective
bargaining agreement to extend the privileges, rights and benefits thereof to
the drivers and helpers as its actual employees clearly amounted to the
commission of an unfair labor practice. And consequently respondent court
properly ordered in, its judgment that said drivers and helpers "should be
given and/or extended all the privileges, rights and benefits that are given to
all the other regular employees retroactive as of the effectivity of the first
agreement of March 14, 1962 up to the present." In ordering, respondent
court but discharging its function under section 5(c) of the Act, supra, to order
the cessation of an unfair labor practice and "take such affirmative action as
will effectuate the policies of this Act."
Failure on petitioner's part to live up in good faith to the terms of its
collective bargaining agreement by denying the privileges and benefits
thereof to the fifteen drivers and helpers through its device of trying to pass
them off as "employees" of its salesmen and propagandists was a serious
violation of petitioner's duty to bargain collectively and constituted unfair
labor practice in any language. As succinctly stated by Mr. Justice Castro on
Republic Savings Bank vs. CIR, in unfair labor practice cases, "(T)he
question is whether the (respondent) committed the act charged in the
complaint. If it did, it is of no consequence either as a matter of procedure or
of substantive law, what the act is denominated whether as a restraint,
interference or coercion, as some members of the Court believe it to be, or
as a discriminatory discharge as other members think it is, or as refusal to
bargain as some other members view it, or even as a combination of any or
all of these."
(Alhambra Industries, Inc. vs. CIR [G.R. No. L-25984, 30 October 1970])
In the bargaining process, the workers and employer shall be
represented by their exclusive bargaining representatives. The labor
organization designated or selected by the majority of employees in an
appropriate collective bargaining unit, shall be the exclusive representative of
the employees in such unit for the purpose of collective bargaining. In the
case at bar, it is the ALU which is the exclusive bargaining representative of
BALMAR employees and as such it has the right and duty to bargain
collectively with BALMAR.
The duty to bargain collectively means the performance of a mutual
obligation to meet and convene promptly and expeditiously in good faith for
the purpose of negotiating an agreement with respect to wages, hours of
work and all other terms and conditions or employment including proposals
for adjusting any grievance or questions arising under such agreement if
requested by either party but such duty does not compel any party to agree
to a proposal or to make any concession (Art. 252, Labor Code, as
amended).
Procedurally, ALU sent a letter to BALMAR, attaching therewith its
proposals for collective bargaining agreement. In reply, BALMAR refused to
negotiate with ALU allegedly because` it received a copy of a letter
purportedly written on November 12, 1982 by one Johnny Luces, who
claimed to be the president of Balmar Farms Employees Association,
informing the Labor Regional Director that more than a majority of them
would like to negotiate directly with their employer BALMAR. There is no
showing, however, that said letter was favorably acted upon, much less, is
there an order superseding the Med-Arbiter's order of October 27, 1982
certifying ALU as the sole and exclusive bargaining representative of the
rank and file workerks of BALMAR.
43
BALMAR cannot also invoke good faith in refusing to negotiate with ALU,
considering that the latter has been certified as the exclusive bargaining
representative of BALMAR rank and file employees. As observed by the
SolGen, BALMAR'S pretense that majority of its rank and file employees
disaffiliated simply because of a letter it received to that effect, all the more
sustains the finding of bad faith for it is not for the petitioner BALMAR to
question which group is the collective bargaining representative of its rank
and file employees.
(Balmar Farms, Inc. vs. NLRC [G.R. No. 73504, 15 October 1991])
Of Employees
This Court has held that a closed-shop is a valid form of union security,
and such a provision in a collective bargaining agreement is not a restriction
of the right of freedom of association guaranteed by the Constitution. (Lirag
Textile Mills, Inc. vs. Blanco, 109 SCRA 87; Manalang vs. Artex Development
Company, Inc., 21 SCRA 561).
purposes as regards wages, hours of work, rates of pay and/or such other
terms and conditions of employment allowed them by law."
The consent election, it should be noted, was ordered by CIR pursuant to
the Union's petition for direct certification docketed as Case 1455-MC and a
similar petition for certification filed by SELU docketed as Case 1464-MC.
Verily, the Union can no longer demand collective bargaining. For, it became
the minority union. As matters stand, said right properly belongs to SELU,
which commands the majority. By law, the right to be the exclusive
representative of all the employees in an appropriate collective bargaining
unit is vested in the labor union "designated or selected" for such purpose
"by the majority of the employees" in the unit concerned. SELU has the right
as well as the obligation to hear, voice out and seek remedies for the
grievances of all Sulo employees, including employees who are members of
petitioner Union, regarding the "rates of pay, wages, hours of employment, or
other conditions of employment."
(United Restauror's vs. Torres [G.R. No. L-24993, 18 December 1968])
STRIKES, LOCKOUTS and CONCERTED ACTIONS
The Court stresses, however, that union security clauses are also
governed by law and by principles of justice, fair play, and legality. Union
security clauses cannot be used by union officials against an employer, much
less their own members, except with a high sense of responsibility, fairness,
prudence, and judiciousness.
A union member may not be expelled from her union, and consequently
from her job, for personal or impetuous reasons or for causes foreign to the
closed-shop agreement and in a manner characterized by arbitrariness and
whimsicality.
(Manila Mandarin Employees Union vs. NLRC [G.R. No. 76989, 29
September 1987])
When the Union struck and picketed on January 16, 1965, it might have
been true that the Union commanded a majority of Sulo's employees.
Without need of certification, it could, under such circumstances, conclude a
collective bargaining agreement with Sulo. But it is not disputed that on
October 4, 1965, i.e., shortly after this case was filed on September 18,
1965, a consent election was held. Not controverted, too, is the fact that, in
that consent election, SELU defeated the Union, petitioner herein. Because
of this, SELU was certified to the Sulo management as the "collective
bargaining representative of the employees ... for collective bargaining
44
the filing of the strike notice and strike-vote report is required would not be
achieved, as when a strike is declared immediately after a strike notice is
served, or when as in the instant case the strike-vote report is filed with
MOLE after the strike had actually commenced Such interpretation of the law
ought not and cannot be countenanced. It would indeed be self-defeating for
the law to imperatively require the filing on a strike notice and strike-vote
report without at the same time making the prescribed waiting periods
mandatory.
(NFSW vs. Ovejera [G.R. No. L-59743, 13 May 1982])
Assumption of Jurisdiction
Article 263 (g) of the Labor Code does not violate the workers'
constitutional right to strike. The section provides in part, viz.:
When in his opinion, there exists a labor dispute causing or likely
to cause a strike or lockout in an industry indispensable to the
national interest, the Secretary of Labor and Employment may
assume jurisdiction over the dispute and decide it or certify the
same to the Commission for compulsory arbitration. .
The foregoing article clearly does not interfere with the workers' right to
strike but merely regulates it, when in the exercise of such right, national
interests will be affected. The rights granted by the Constitution are not
absolute. They are still subject to control and limitation to ensure that they
are not exercised arbitrarily. The interests of both the employers and
employees are intended to be protected and not one of them is given undue
preference.
(PTWU vs. CONFESOR [G.R. No. 117169, 12 March 1997])
The Labor Code vests upon the Secretary of Labor the discretion to
determine what industries are indispensable to national interest. Thus, upon
the determination of the Secretary of Labor that such industry is
indispensable to the national interest, it will assume jurisdiction over the labor
dispute of said industry. The assumption of jurisdiction is in the nature of
police power measure. This is done for the promotion of the common good
considering that a prolonged strike or lockout can be inimical to the national
economy. The Secretary of Labor acts to maintain industrial peace. Thus, his
certification for compulsory arbitration is not intended to impede the workers'
right to strike but to obtain a speedy settlement of the dispute. (PTWU vs.
Confesor [G.R. No. 117169, 12 March 1997])
46
decision of all other questions arising in the case is but an exercise of that
jurisdiction.
[T]he Secretary was explicitly granted by Article 263 (g) of the Labor Code
the authority to assume jurisdiction over a labor dispute causing or likely to
cause a strike or lockout in an industry indispensable to the national interest,
and decide the same accordingly. Necessarily, this authority to assume
jurisdiction over the said labor dispute must include and extend to all
questions and include and extend to all questions and controversies arising
therefrom, including cases over which the Labor Arbiter has exclusive
jurisdiction.
(International Pharmaceuticals, Inc. v. Secretary [G.R. Nos. 92981-83, 09
January 1992])
Before the Secretary of Labor and Employment may take cognizance of
an issue which is merely incidental to the labor dispute, therefore, the same
must be involved in the labor disputed itself, or otherwise submitted to him for
resolution. If it was not, as was the case in PAL v. Secretary or Labor and
Employment, supra, and he nevertheless acted on it, that assumption of
jurisdiction is tantamount to a grave abuse of discretion. Otherwise, the ruling
in International Pharmaceuticals, Inc. v. Secretary of Labor and Employment,
supra, will apply.
The submission of an incidental issue of a labor dispute, in assumption
and/or certification cases, to the Secretary of Labor for his resolution is thus
one of the instances referred to whereby the latter may exercise concurrent
jurisdiction together with the Labor Arbiters.
(St. Scholastica's College vs. Torres [G.R. No. 100158, 02 June 1992])
Return to Work Order
Once the Secretary of Labor assumes jurisdiction over, or certifies for
compulsory arbitration, a labor dispute adversely affecting the national
interest, the law mandates that if a strike or lockout has already taken place
at the time of assumption or certification, "all striking or locked out
employees shall immediately return to work and the employer shall
immediately resume operations and readmit all workers under the same
terms and conditions prevailing before the strike." [Art. 263 (g), Labor Code,
as amended.] Far from erring, the Acting Secretary, in issuing the return to
work order, merely implemented the clear mandates of the law. Thus, the
contention that error attended the issuance of such order is without any legal
basis. (PSBA - Manila vs. Noriel [G.R. No. 80648, 15 August 1988])
47
Article 263 (g) of the Labor Code provides that if a strike has already
taken place at the time of assumption, "all striking . . . employees shall
immediately return to work." This means that by its very terms, a return-towork order is immediately effective and executory notwithstanding the filing
of a motion for reconsideration. It must be strictly complied with even during
the pendency of any petition questioning its validity. After all, the assumption
and/or certification order is issued in the exercise of respondent Secretary's
compulsive power of arbitration and, until set aside, must therefore be
immediately complied with. (St. Scholastica's vs. Torres [G.R. No. 100158,
02 June 1992])
To say that its (return-to-work order) effectivity must wait affirmance in a
motion for reconsideration is not only to emasculate it but indeed to defeat its
import, for by then the deadline fixed for the return to work would, in the
ordinary course, have already passed and hence can no longer be affirmed
insofar as the time element is concerned. (PALEA vs. PAL)
The respective liabilities of striking union officers and members who
failed to immediately comply with the return-to-work order is outlined in Art.
264 of the Labor Code which provides that any declaration of a strike or
lockout after the Secretary of Labor and Employment has assumed
jurisdiction over the labor dispute is considered an illegal act. Any worker or
union officer who knowingly participates in a strike defying a return-to-work
order may, consequently, "be declared to have lost his employment status."
(St. Scholastica's vs. Torres [G.R. No. 100158, 02 June 1992])
[T]he underlying principle embodied in Art. 264(g) on the settlement of
labor disputes is that assumption and certification orders are executory in
character and are to be strictly complied with by the parties even during the
pendency of any petition questioning their validity. This extraordinary
authority given to the Secretary of Labor is aimed at arriving at a peaceful
and speedy solution to labor disputes, without jeopardizing national interests.
Regardless therefore of their motives, or the validity of their claims, the
striking workers must cease and/or desist from any and all acts that tend to,
or undermine this authority of the Secretary of Labor, once an assumption
and/or certification order is issued. They cannot, for instance, ignore returnto-work orders, citing unfair labor practices on the part of the company, to
justify their actions.
(UFE vs. Nestle Phil., Inc. [G.R. No. 88710-13, 19 December 1990])
48
stoppage of their work was not the direct consequence of the company's
unfair labor practice. Hence their economic loss should not be shifted to the
employer. (See Dinglasan v. National Labor Union, G.R. No. L-14183, Nov.
28, 1959) As explained by the National Labor Relations Board in the case of
American Manufacturing Co., NLRB 443, "When employees voluntarily go on
strike, even if in protest against unfair labor practices, it has been our policy
not to award them backpay during the strike. However, when the strikers
abandon the strike and apply for reinstatement despite the unfair labor
practices and the employer either refuses to reinstate them or imposes upon
their reinstatement new conditions that constitute unfair labor practices, We
are of the opinion that the considerations impelling our refusal to award
backpay are no longer controlling. Accordingly, We hold that where, as in this
case, an employer refuses to reinstate strikers except upon their acceptance
of the new conditions that discriminate against them because of their union
membership or activities, the strikers who refuse to accept the conditions and
are consequently refused reinstatement are entitled to be made whole for
any losses of pay they may have suffered by reason of the respondent's
discriminatory acts." (Quoted in Teller, 2 Labor Disputes and Collective
Bargaining, Sec. 371, pp. 997-998)
(Cromwell Commercial Employees vs. CIR [G.R. No. L-19778, 30 September
1964])
TERMINATION OF EMPLOYMENT
By Employee
(a) An employee may terminate without just cause the employeeemployer relationship by serving a written notice on the employer at least
one month in advance. The employer upon whom no such notice was served
may hold the employee liable for damages.
(b) An employee may put an end to the relationship without serving any
notice on the employer for any of the following just causes:
(1) Serious insult by the employer or his representative on the
honor and person of the employee;
(2) Inhuman and unbearable treatment accorded the employee by
the employer or his representative;
(3) Commission of a crime or offense by the employer or his
representative against the person of the employee or any of the
immediate members of his family; and
50
(c)
51
fact, Filoteo even obtained permission to leave from the Assistant Production
Manager.
Considering the factory practice which management tolerated, we are
persuaded that Filoteo, in his rush to catch the service vehicle, merely forgot
to correct his initial time-out entry. Nothing is shown to prove he deliberately
falsified his daily time record to deceive the company. The NLRC found that
even management's own evidence reflected that a certain Felix Pelayo, a coworker of private respondent, was also allowed to go home that night and
like private respondent logged in advance 7:00 a.m. as his time-out. This
supports Filoteo's claim that it was common practice among night-shift
workers to log in their usual time-out in advance in the daily time record.
(Permex vs. NLRC [G.R. No. 125031, 24 January 2000])
The act of private respondent in asking a co-employee to punch-in her
time card although a violation of company rules, likewise does not constitute
serious misconduct. Firstly, it was done in good faith considering that she
was asked by an officer to perform a task outside the office, which is for the
benefit of the company, with the consent of the plant manager. Secondly, it
eas her first time to commit such infraction during her five (5)-year service in
the company. Finally, the company did not lose anything by reason thereof
as the offense was immediately known and corrected. (Philippine Aeolus
Automotive vs. NLRC [G.R. No. 124617, 29 April 2000])
An ordinary employee, quite understandably, examines her pay slip every
time she receives her salary. But we cannot always expect the employee to
go further as to determine if her overtime pay, which is not much anyway,
was properly computed up to the last centavo or whether the overtime pay
pertained to a particular day the work was rendered. The amount in
controversy was only P254.90. Considering the employees salary was not
fixed as it fluctuated from time to time due to varying amounts of tips,
commissions and overtime pay received, it would not have been right to
assume always that the employee would examine every detail of the
computation of her salary. Needless to say, the same should not be laid
solely on the employee because the mistake is not hers alone. The mistake
resulted from the collective laxity of petitioners accounting personnel and
inadvertence on the part of the respondent. (Shangri-La Hotel vs. Dialogo
[G.R. No. 141900, 20 April 2001])
52
Gross
and
habitual
neglect by the employee
of his duties;
Sleeping on the job
Petitioner's reliance on the authorities it cited that sleeping on the job is
always a valid ground for dismissal, is misplaced. The authorities cited
involved security guards whose duty necessitates that they be awake and
watchful at all times inasmuch as their function, to use the words in Luzon
Stevedoring Corp. v. CIR, is "to protect the company from pilferage or loss."
Accordingly, the doctrine laid down in those cases is not applicable to the
case at bar.
While an employer enjoys a wide latitude of discretion in the
promulgation of policies, rules and regulations on work-related activities of
the employees, those directives, however, must always be fair and
reasonable, and the corresponding penalties, when prescribed, must be
commensurate to the offense involved and to the degree of the infraction. In
the case at bar, the dismissal meted out on private respondent for allegedly
sleeping on the job, under the attendant circumstances, appears to be too
harsh a penalty, considering that he was being held liable for first time, after
nine (9) long years of unblemished service, for an alleged offense which
caused no prejudice to the employer, aside from absence of substantiation of
the alleged offense. The authorities cited by petitioner are also irrelevant for
the reason that there is no evidence on the depravity of conduct, willfulness
of the disobedience, or conclusiveness of guilt on the part of private
respondent. Neither was it shown that private respondent's alleged
negligence or neglect of duty, if any, was gross and habitual. Thus,
reinstatement is just and proper.
(VH Manufacturing, Inc. vs. NLRC [G.R. No. 130957, 19 January 2000])
Abandonment
For abandonment to constitute a valid cause for termination of
employment, there must be a deliberate unjustified refusal of the employee
to resume his employment. This refusal must be clearly shown. Mere
absence is not sufficient; it must be accompanied by overt acts pointing to
the fact that the employee simply does not want to work anymore. (Davies,
Inc. vs. NLRC [G.R. No. 106915, 31 August 1993])
xxx
xxx
The Labor Arbiter and the NLRC similarly answered the question with the
alleged truism: private respondent filed the complaint for illegal dismissal
because he was illegally dismissed. We, however, believe that private
respondent's motivation in filing the complaint for illegal dismissal despite his
refusal to return to work, is revealed by the following averment in his position
paper before the Labor Arbiter:
Before delving into the issues of the above entitled case,
complainant would like to request the Honorable Commissioner to
take judicial notice of the fabricated and manufactured criminal case
filed by the respondents in retaliation to the institution of this case and
in fact the latter had confronted the former to drop this case in
53
equipment at the joint terminal facility. In doing so, he exposed the terminal
complex and the residents in adjacent communities to the danger of a major
disaster that may be caused by tank explosions and conflagration. Verily, he
committed acts inimical to the interest of his employer which is mandated by
law to observe extraordinary diligence in its operations to ensure the safety
of the public. Indeed, we are constrained to conclude that petitioner's
admitted infraction as well his past violation of safety regulations is more
than sufficient ground for respondent company to terminate the employment
of petitioner.
(Deles vs. NLRC [G.R. No. 121348, 09 March 2000])
A perusal of RCPI's dismissal notice reveals that it merely stated a
conclusion to the effect that the withholding was deliberately done to hide
alleged malversation or misappropriation without, however, stating the
circumstances in support thereof. It further mentioned that the position of
cashier requires utmost trust and confidence but failed to allege the breach
of trust on the part of petitioner and how the alleged breach was committed.
On the assumption that there was indeed a breach, there is no evidence that
petitioner was a managerial employee of respondent RCPI. It should be facts
noted that the term 'trust and managerial employees. It may not even be
presumed that when there is a shortage, there is also a corresponding
breach of trust. Cash shortages in a cashier's work may happen, and when
there is no proof that the same was deliberately done for a fraudulent or
wrongful purpose, it cannot constitute breach of trust so as to render the
dismissal from work invalid. (Farrol vs. CA [G.R. No. 133259, 10
February 2000])
Commission of a crime or offense by the employee against the person of his
employer or any immediate member of his family or his duly authorized
representative;
Petitioners cannot downgrade the seriousness of their offenses. They
committed falsifications. These are crimes punished by the Revised Penal
Code itself. Their commission constitutes serious misconduct. Nor can
petitioners avoid liability by claiming that the SN Forms are not company
records but SSS documents. Their use is covered by Item No. 12 of the
Schedule of Offenses and Penalties which provides ". . . knowingly using
falsified record or document." Petitioners knew that the commission of this
offense is punishable by dismissal in view of its seriousness. They cannot
therefore complain of its harshness. (Farrol vs. NLRC [G.R. No. 133259, 10
February 2000])
Other causes analogous to the foregoing.
In the case of Nadura vs. Benguet Consolidated Inc., this Court
speaking through Justice Arsenio Dizon held inter alia that a cursory reading
of Section 1, R.A. 1787, which enumerates the just causes for which an
employer may terminate an employment with a definite period, is sufficient
to convince anyone that illness cannot be included as an analogous cause
"by any stretch of the imagination." (Soriano vs. PNR [G.R. No. L-43224, 23
August 1978)
'The employer cannot rightfully dismiss the employee who is sick even if
he complies with the requirement of the Act as to the service of the required
notice or payment of the corresponding separation pay, because sickness is
not willful or voluntary on the part of the employee.' (Eugenio Nadura v.
Benguet Consolidated, Inc. [G.R. No. L-17780, 24 August 1962])
(Hence to constitute an analogous cause under Article 282 of the Labor
Code, the act must be willful and voluntary on the part of the employee [and
illness is not])
We cannot but agree with PEPSI that "gross inefficiency" falls within the
purview of "other causes analogous to the foregoing," the constitutes,
therefore, just cause to terminate an employee under Article 282 of the
Labor Code. One is analogous to another if it is susceptible of comparison
with the latter either in general or in some specific detail; or has a close
relationship with the latter. "Gross inefficiency" is closely related to "gross
neglect," for both involve specific acts of omission on the part of the
employee resulting in damage to the employer or to his business. (Lim vs.
NLRC [G.R. No. 118434, 26 July 1996])
Totality of Infractions
Petitioner also assails the severity of the penalty imposed upon him
alleging that he should have merited a suspension only considering his past
performance.
Unfortunately, petitioner does not appear to be a first offender. Aside from
the infractions he was found to have committed, it appears that petitioner
falsified the truth when he made a false report about the incident to private
56
Section 2. Declaration of Policy. The State shall value the dignity of every
individual, enhance the development of its human resources, guarantee full
respect for human rights, and uphold the dignity of workers, employees,
applicants for employment, students or those undergoing training, instruction or
education. Towards this end, all forms of sexual harassment in the employment,
education or training environment are hereby declared unlawful.
Section 3. Work Education or Training-related Sexual Harassment Defined.
Work, education of training-related sexual harassment is committed by an
employer, employee, manager, supervisor, agent of the employer, teacher,
instructor, professor, coach, trainor, or any other person who, having authority,
influence or moral ascendancy over another in a work or training or education
environment, demands, requests or otherwise requires any sexual favor from the
other, regardless of whether the demand, request or requirement for submission
is accepted by the object of said Act.
(a)
In a work-related or employment environment, sexual harassment is
committed when:
(1) The sexual favor is made as a condition in the hiring or in the
employment, re-employment or continued employment of said
individual, or in granting said individual favorable compensation,
terms, conditions, promotions, or privileges; or the refusal to grant
the sexual favor results in limiting, segregating or classifying the
employee which in any way would discriminate, deprive or diminish
employment opportunities or otherwise adversely affect said
employee;
(2) The above acts would impair the employee's rights or privileges
under existing labor laws; or
(3) The above acts would result in an intimidating, hostile, or offensive
environment for the employee.
(b)
In an education or training environment, sexual harassment is
committed:
(1) Against one who is under the care, custody or supervision of the
offender;
(2) Against one whose education, training, apprenticeship or tutorship
is entrusted to the offender;
(3) When the sexual favor is made a condition to the giving of a
passing grade, or the granting of honors and scholarships, or the
57
58
Authorized Causes
Closure of establishment and reduction of personnel. - The employer
may also terminate the employment of any employee due to the installation
of labor-saving devices, redundancy, retrenchment to prevent losses or the
closing or cessation of operation of the establishment or undertaking unless
the closing is for the purpose of circumventing the provisions of this title, by
serving a written notice on the workers and the Department of Labor and
Employment at least one (1) month before the intended date thereof. In case
of termination due to the installation of labor-saving devices or redundancy,
the worker affected thereby shall be entitled to a separation pay equivalent
to at least one (1) month pay or to at least one (1) month pay for every year
of service, whichever is higher. In case of retrenchment to prevent losses
and in cases of closures or cessation of operations of establishment or
undertaking not due to serious business losses or financial reverses, the
separation pay shall be equivalent to one (1) month pay or at least one-half
(1/2) month pay for every year of service, whichever is higher. A fraction of at
least six (6) months shall be considered one (1) whole year. (Article 283 of
the Labor Code)
Disease as ground for termination. - An employer may terminate the
services of an employee who has been found to be suffering from any
disease and whose continued employment is prohibited by law or is
prejudicial to his health as well as the health of his co-employees: Provided,
That he is paid separation pay equivalent to at least one month salary or to
one-half month salary for every year of service, whichever is greater, a
fraction of at least six months being considered as one whole year. (Article
284 of the Labor Code)
Authorized causes for the termination of employment:
(a)
installation of labor-saving devices;
(b)
redundancy;
(c)
retrenchment to prevent losses; and
(d)
closing or cessation of operation of the establishment or
undertaking unless the closing is for the purpose of
circumventing the provisions of law.
(e)
disease which renders continued employment prohibited by
law or prejudicial to his health or to the health of his fellow
employees.
.
The REQUIREMENT OF NOTICE to both the employees concerned and
the Department of Labor and Employment (DOLE) is mandatory and must be
written and given at least one month before the intended date of
retrenchment. In this case, it is undisputed that the petitioners were given
notice of the temporary lay-off. There is, however, no evidence that any
written notice to permanently retrench them was given at least one month
prior to the date of the intended retrenchment. The NLRC found that GTI
conveyed to the petitioners the impossibility of recalling them due to the
continued unavailability of work. But what the law requires is a written notice
to the employees concerned and that requirement is mandatory. The notice
must also be given at least one month in advance of the intended date of
retrenchment to enable the employees to look for other means of
employment and therefore to ease the impact of the loss of their jobs and the
corresponding income. That they were already on temporary lay-off at the
time notice should have been given to them is not an excuse to forego the
one-month written notice because by this time, their lay-off is to become
permanent and they were definitely losing their employment.
There is also nothing in the records to prove that a written notice was
ever given to the DOLE as required by law. GTI's position paper, offer of
exhibits, Comment to the Petition, and Memorandum in this case do not
mention of any such written notice. The law requires two notices one to the
employee/s concerned and another to the DOLE not just one. The notice to
the DOLE is essential because the right to retrench is not an absolute
prerogative of an employer but is subject to the requirement of law that
retrenchment be done to prevent losses. The DOLE is the agency that will
determine whether the planned retrenchment is justified and adequately
supported by facts.
Retrenchment
Retrenchment, is used interchangeably with the term "lay-off." It is the
termination of employment initiated by the employer through no fault of the
employee's and without prejudice to the latter, resorted to by management
during periods of business recession, industrial depression, or seasonal
fluctuations, or during lulls occasioned by lack of orders, shortage of
materials, conversion of the plant for a new production program or the
introduction of new methods or more efficient machinery, or of automation.
Simply put, it is an act of the employer of dismissing employees because of
losses in the operation of a business, lack of work, and considerable
reduction on the volume of his business, a right consistently recognized and
affirmed by this Court. (Sebuguero vs. NLRC [G.R. No. 115394, 27
September 1995])
60
DOLE were not given. (Sebuguero vs. NLRC [G.R. No. 115394, 27 September
1995])
In its ordinary connotation, the phrase "TO PREVENT LOSSES" means
that retrenchment or termination of the services of some employees is
authorized to be undertaken by the employer sometime before the
anticipated losses are actually sustained or realized. It is not, in other words,
the intention of the lawmaker to compel the employer to stay his hand and
keep all his employees until after losses shall have in fact materialized. If
such an intent were expressly written into the law, that law may well be
vulnerable to constitutional attack as unduly taking property from one man to
be given to another.
At the other end of the spectrum, it seems equally clear that not every
asserted possibility of loss is sufficient legal warrant for the reduction of
personnel. In the nature of things, the possibility of incurring losses is
constantly present, in greater or lesser degree, in the carrying on of business
operations, since some, indeed many, of the factors which impact upon the
profitability or viability of such operations may be substantially outside the
control of the employer. (Revidad vs. NLRC [G.R. No. 111105, 27 June
1995])
Anent the mandatory written notice to be filed with the labor department
one month before retrenchment, we are of the considered opinion that the
proceedings had before the voluntary arbitrator, where both parties were
given the opportunity to be heard and present evidence in their favor,
constitute substantial compliance with the requirement of the law. The
purpose of this notice requirement is to enable the proper authorities to
ascertain whether the closure of the business is being done in good faith and
is not just a pretext for evading compliance with the just obligations of the
employer to the affected employees. In fact, the voluntary arbitration
proceedings more than satisfied the intendment of the law considering that
the parties were accorded the benefit of a hearing, in addition to the right to
present their respective position papers and documentary evidence.
(Revidad vs. NLRC [G.R. No. 111105, 27 June 1995])
Retrenchment, in contrast to redundancy, is an economic ground to
reduce the number of employees. In order to be justified, the termination of
employment by reason of retrenchment must be due to business losses or
reverses which are serious, actual and real. Not every loss incurred or
expected to be incurred by the employer will justify retrenchment, since, in
the nature of things, the possibility of incurring losses is constantly present,
in greater or lesser degree, in carrying on the business operations.
Retrenchment is normally resorted to by management during periods of
business reverses and economic difficulties occasioned by such events as
recession, industrial depression, or seasonal fluctuations. It is an act of the
employer of reducing the work force because of losses in the operation of the
enterprise, lack of work, or considerable reduction on the volume of
business. Retrenchment is, in many ways, a measure oflast resort when
other less drastic means have been tried and found to be inadequate. A lull
caused by lack of orders or shortage of materials must be of such nature as
would severely affect the continued business operations of the employer to
the detriment of all and sundry if not properly addressed. The institution of
"new methods or more efficient machinery, or of automation" is technically a
ground for termination of employment by reason of installation of laborsaving devices but where the introduction of these methods is resorted to not
merely to effect greater efficiency in the operations of the business but
principally because of serious business reverses and to avert further losses,
the device could then verily be considered one of retrenchment. (Edge
Apparel, Inc. vs. NLRC [G.R. No. 121314, 12 February 1998])
Granting that the 16 May 1988 termination was a retrenchment scheme,
and the 31 July 1988 and the 28 February 1989 were due to closure, the law
requires the granting of the same amount of separation benefits to the
affected employees in any of the cases. The respondent argued that the
giving of more separation benefit to the second and third batches of
employees separated was their expression of gratitude and benevolence to
the remaining employees who have tried to save and make the company
viable in the remaining days of operations. This justification is not plausible.
There are workers in the first batch who have rendered more years of service
and could even be said to be more efficient than those separated
subsequently, yet they did not receive the same recognition. Understandably,
their being retained longer in their job and be not included in the batch that
was first terminated, was a concession enough and may already be
considered as favor granted by the respondents to the prejudice of the
complainants. As it happened, there are workers in the first batch who have
rendered more years in service but received lesser separation pay, because
61
62
63
Even assuming, arguendo, that the situation in this case were a closure
of the business establishment called Patalon Coconut Estate of private
respondents, still the petitioners/employees are not entitled to separation
pay. The closure contemplated under Article 283 of the Labor Code is a
unilateral and voluntary act on the part of the employer to close the business
establishment as may be gleaned from the wording of the said legal
provision that "The employer may also terminate the employment of any
employee due to. . .". The use of the word "may," in a statute, denotes that it
is directory in nature and generally permissive only. The "plain meaning rule"
or verba legis in statutory construction is thus applicable in this case. Where
the words of a statute are clear, plain and free from ambiguity, it must be
given its literal meaning and applied without attempted interpretation.
In other words, Article 283 of the Labor Code does not contemplate a
situation where the closure of the business establishment is forced upon the
employer and ultimately for the benefit of the employees.
(NFL vs. NLRC [G.R. No. 127718, 02 March 2000])
Broadly speaking, there appears no complete dissolution of petitioner's
business undertaking but the relocation of petitioner's plant to Batangas, in
our view, amounts to cessation of petitioner's business operations in Makati.
It must be stressed that the phrase "closure or cessation of operation of an
establishment or undertaking not due to serious business losses or reverses"
under Article 283 of the Labor Code includes both the complete cessation of
all business operations and the cessation of only part of a company's
business. In Philippine Tobacco Flue-Curing & Redrying Corp. vs. NLRC, a
company transferred its tobacco processing plant in Balintawak, Quezon City
to Candon, Ilocos Sur. The company therein did not actually close its entire
business but merely relocated its tobacco processing and redrying
operations to another place. Yet, this Court considered the transfer as
closure not due to serious business losses for which the workers are entitled
to separation pay. (Cheniver Deco Print Technics Corporation vs. NLRC
[G.R. No. 122876, 17 February 2000])
Disease
The applicable rule on the ground for dismissal invoked against him is
Section 8, Rule I, Book VI, of the Rules and Regulations Implementing the
Labor Code reading as follows:
Llora Motors Inc. vs. Drilon, this type of hearing is not even mandatory in
cases of complainants lodged before the Labor Arbiter. And in Sajonas vs.
NLRC, we observed as follows:
Finally, on the matter of due process which petitioners claim was
denied them by private respondents during the investigation which
led to their dismissal, we agree with respondents that although the
aforesaid investigations were not conducted in the manner of a
regular trial in court, the elements of due process, namely the right to
be informed of the charges, to be present and to be heard, were
accorded petitioners. In said investigations, petitioners freely and
voluntarily answered the questions and even made further statements
in their defense during the concluding stages thereof. (Aberia vs.
NLRC [G.R. No. 102023, 06 November 1992])
"AMPLE OPPORTUNITY" connotes every kind of assistance that
management must accord the employee to enable him to prepare
adequately for his defense including legal representation. (Manebo vs. NLRC
[G.R. No. 107721, 10 January 1994])
The record of this case is bereft of any indication that a hearing or other
gathering was in fact held where private respondent Calangi was given a
reasonable opportunity to confront his accuser(s) and to defend against the
charges made by the latter. Petitioner Corporation's "prior consultation" with
the labor union with which private respondent Calangi was affiliated, was
legally insufficient. So far as the record shows, neither petitioner nor the
labor union actually advised Calangi of the matters at issue. The
Memorandum of petitioner's Personnel Manager certainly offered no helpful
particulars. It is important to stress that the rights of an employee whose
services are sought to be terminated to be informed beforehand of his
proposed dismissal (or suspension) as well as of the reasons therefor, and to
be afforded an adequate opportunity to defend himself from the charges
levelled against him, are rights PERSONAL TO THE EMPLOYEE. Those
rights were not satisfied by petitioner Corporation's obtaining the consent of
or consulting with the labor union; such consultation or consent was not a
substitute for actual observance of those rights of private respondent
Calangi. The employee can waive those rights, if he so chooses, but the
union cannot waive them for him. That the private respondent simply 'kept
silent" all the while, is not adequate to show an effective waiver of his rights.
Notice and opportunity to be heard must be accorded by an employer even
though the employee does not affirmatively demand them. (Century Textile
Mills, Inc. vs. NLRC [G.R. No. 77859, 25 May 1988])
WENPHIL Doctrine
The Court holds that the policy of ordering the reinstatement to the
service of an employee without loss of seniority and the payment of his
wages during the period of his separation until his actual reinstatement but
not exceeding three (3) years without qualification or deduction, when it
appears he was not afforded due process, although his dismissal was found
to be for just and authorized cause in an appropriate proceeding in the
Ministry of Labor and Employment, should be re-examined. It will be highly
prejudicial to the interests of the employer to impose on him the services of
an employee who has been shown to be guilty of the charges that warranted
his dismissal from employment. Indeed, it will demoralize the rank and file if
the undeserving, if not undesirable, remains in the service.
Thus in the present case, where the private respondent, who appears to
be of violent temper, caused trouble during office hours and even defied his
superiors as they tried to pacify him, should not be rewarded with reemployment and back wages. It may encourage him to do even worse and
will render a mockery of the rules of discipline that employees are required to
observe. Under the circumstances the dismissal of the private respondent for
just cause should be maintained. He has no right to return to his former
employer.
However, the petitioner must nevertheless be held to account for failure
to extend to private respondent his right to an investigation before causing
his dismissal. The rule is explicit as above discussed. The dismissal of an
employee must be for just or authorized cause and after due process.
Petitioner committed an infraction of the second requirement. Thus, it must
be imposed a sanction for its failure to give a formal notice and conduct an
investigation as required by law before dismissing petitioner from
employment. Considering the circumstances of this case petitioner must
indemnify the private respondent the amount of P1,000.00. The measure of
this award depends on the facts of each case and the gravity of the omission
committed by the employer. (WENPHIL vs. NLRC [G.R. No. 80587, 08
February 1989])
WENPHIL Doctrine abandoned by Serrano vs. NLRC
65
xxx
xxx
The SECOND REASON is that notice and hearing are required under the
Due Process Clause before the power of organized society are brought to
bear upon the individual. This is obviously not the case of termination of
employment under Art. 283. Here the employee is not faced with an aspect
of the adversary system. The purpose for requiring a 30-day written notice
before an employee is laid off is not to afford him an opportunity to be heard
on any charge against him, for there is none. The purpose rather is to give
him time to prepare for the eventual loss of his job and the DOLE an
opportunity to determine whether economic causes do exist justifying the
termination of his employment.
Even in cases of dismissal under Art. 282, the purpose for the
requirement of notice and hearing is not to comply with Due Process Clause
of the Constitution. The time for notice and hearing is at the trial stage. Then
that is the time we speak of notice and hearing as the essence of procedural
due process. Thus, compliance by the employer with the notice requirement
before he dismisses an employee does not foreclose the right of the latter to
question the legality of his dismissal. As Art. 277(b) provides, "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."
Indeed, to contend that the notice requirement in the Labor Code is an
aspect of due process is to overlook the fact that Art. 283 had its origin in Art.
302 of the Spanish Code of Commerce of 1882 which gave either party to
the employer-employee relationship the right to terminate their relationship
by giving notice to the other one month in advance. In lieu of notice, an
employee could be laid off by paying him a mesada equivalent to his salary
for one month. 28 This provision was repealed by Art. 2270 of the Civil Code,
which took effect on August 30, 1950. But on June 12, 1954, R.A. No. 1052,
otherwise known as the Termination Pay Law, was enacted reviving the
mesada. On June 21, 1957, the law was amended by R.A. No. 1787
providing for the giving of advance notice or the payment of compensation at
the rate of one-half month for every year of service.
The Termination Pay Law was held not to be a substantive law but a
regulatory measure, the purpose of which was to give the employer the
opportunity to find a replacement or substitute, and the employee the equal
opportunity to look for another job or source of employment. Where the
termination of employment was for a just cause, no notice was required to be
given to the, employee. 30 It was only on September 4, 1981 that notice was
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Thus, only if the termination of employment is not for any of the causes
provided by law is it illegal and, therefore, the employee should be reinstated
and paid backwages. To contend, as Justices Puno and Panganiban do, that
even if the termination is for a just or authorized cause the employee
concerned should be reinstated and paid backwages would be to amend Art.
279 by adding another ground for considering a dismissal illegal. What is
more, it would ignore the fact that under Art. 285, if it is the employee who
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fails to give a written notice to the employer that he is leaving the service of
the latter, at least one month in advance, his failure to comply with the legal
requirement does not result in making his resignation void but only in making
him liable for damages. This disparity in legal treatment, which would result
from the adoption of the theory of the minority cannot simply be explained by
invoking resident Ramon Magsaysay's motto that "he who has less in life
should have more in law." That would be a misapplication of this noble
phrase originally from Professor Thomas Reed Powell of the Harvard Law
School.
Justice Panganiban cites Pepsi-Cola Bottling Co. v. NLRC, in support of
his view that an illegal dismissal results not only from want of legal cause but
also from the failure to observe "due process." The Pepsi-Cola case actually
involved a dismissal for an alleged loss of trust and confidence which, as
found by the Court, was not proven. The dismissal was, therefore, illegal, not
because there was a denial of due process, but because the dismissal was
without cause. The statement that the failure of management to comply with
the notice requirement "taints the dismissal with illegality" was merely a
dictum thrown in as additional grounds for holding the dismissal to be illegal.
Given the nature of the violation, therefore, the appropriate sanction for
the failure to give notice is the payment of backwages for the period when
the employee is considered not to have been effectively dismissed or his
employment terminated. The sanction is not the payment alone of nominal
damages as Justice Vitug contends. (Serrano vs. NLRC [G.R. No. 117040,
27 January 2000])
Effect of Lack of Notice: backwages until determination of just cause
69
Loan Bank v. National Labor Relations Commission, 205 SCRA 492 [1992];
Philippine Japan Active Carbon Corporation v. National Labor Relations
Commission, 171 SCRA 164 [1989]).
In the case at bench, the demotion of private respondent is tantamount to
constructive dismissal. One does not need to stretch his imagination to
distinguish the work of a security guard and that of a common agricultural
laborer in a sugar plantation. Likewise, there was a diminution of salary, for a
security guard is paid on a monthly basis while a laborer in the sugar
plantation is paid either on a daily or piece work basis. Laborers do not work
year round but only when needed and on off-season months, they are not
required to work at all.
(Oscar Ledesma & Co. vs. NLRC [G.R. No. 110930, 13 July 1995])
Preventive Suspension
Sections 3 and 4, Rule XIV, Book V of the Omnibus Rules Implementing
the Labor Code, Termination of Employment, provide:
Sec. 3. Preventive suspension. The employer may place the worker
concerned under preventive suspension if his continued employment
poses a serious and imminent threat to the life or property of the
employer or of his co-workers.
Sec. 4 Period of suspension. No preventive suspension shall last
longer than 30 days. The employer shall thereafter reinstate the worker
in his former or in a substantially equivalent position of the employer
may extend the period of suspension provided that during the period of
extension, he pays the wages and other benefits due to the worker. In
such case, the worker shall not be bound to reimburse the amount paid
to him during the extension if the employer decides, after completion of
the hearing, to dismiss the worker.
Section 4, Rule XIV, Book V of the Omnibus Rules provides that
preventive suspension cannot be more than the maximum period of 30 days.
Hence, after the 30-day period of suspension beyond the maximum period
amounts to constructive dismissal. (Hyatt Taxi Services vs. Catinoy [G.R. No.
143204, 26 June 2001])
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Quitclaims
Burden of Proof in Labor Cases
Private respondent's documentary evidence showing the culpability of
petitioners should prevail over petitioners' uncorroborated explanations and
self-serving denials regarding their involvement in the pilferages. All
administrative determinations require only substantial proof and not clear
and convincing evidence. Proof beyond reasonable doubt of the employee's
misconduct is not required, it being sufficient that there is some basis for the
same or that the employer has reasonable ground to believe that the
employee is responsible for the misconduct, and his participation therein
renders him unworthy of the trust and confidence demanded by his position.
Thus, petitioners cannot assert that the public respondent closed its eyes to
their evidence. The latter's findings are supported by substantial evidence
which goes beyond the minimum evidentiary support required by law.
(Segismundo vs. NLRC [G.R. No. 112203, 13 December 1994])
The fact that Santos neglected to substantiate his claim for night shift
differentials is not prejudicial to his cause. After all, the burden of proving
payment rests on petitioner NSC. Santos' allegation of non-payment of this
benefit, to which he is by law entitled, is a negative allegation which need not
be supported by evidence unless it is an essential part of his cause of action.
It must be noted that his main cause of action is his illegal dismissal, and the
claim for night shift differential is but an incident of the protest against such
dismissal. Thus, the burden of proving that payment of such benefit has been
made rests upon the party who will suffer if no evidence at all is presented by
either party. National Semiconductor (HK) Distribution, Ltd. vs. NLRC [G.R.
No. 123520, 26 June 1998])
The reason for this rule is that the pertinent personnel files, payrolls,
records, remittance and other similar documents which will show that
overtime, differentials, service incentive leave and other claims of workers
have been paid are not in the possession of the worker but in the custody
and absolute control of the employer. Thus, in choosing not to present
evidence to prove that it had paid all the monetary claims of petitioners, HITECH failed once again to discharge the onus probandi. Consequently, we
have no choice but to award those claims to petitioners. (Villar vs. NLRC
[G.R. No. 130935, 11 May 2009])
rights. As private respondents did not authorize the union to represent them
not bound by the terms thereof.
(Golden Donuts, Inc. vs. NLRC [G.R. Nos. 113666-68, 19 January 2000])
The mere fact that the employee was not physically coerced or
intimidated does not necessarily imply that he freely or voluntarily consented
to the terms of the quitclaim. Under Article 1330 of the Civil Code, consent
may be vitiated not only through intimidation or violence but also by mistake,
undue influence or fraud. Moreover, it is the employer and not the employee
who has the burden of proving that the quitclaim was voluntarily entered into.
(Philippine Carpet Employees Association vs. PCMC [G.R. No.140269-70,
14 September 2000])
Reliefs under the Labor Code
Reinstatement plus backwages
Since private respondent's dismissal was for just and valid cause, the
order of public respondent for the reinstatement of private respondent with
award of backwages has no factual and legal basis. (PAL vs. NLRC [G.R.
No. 126805, 16 March 2000])
[A]n employee who is unjustly dismissed is entitled to his full backwages
computed from the time his compensation was withheld from him up to the
time of his reinstatement. Mere offer to reinstate a dismissed employee,
given the circumstances in this case, is not enough. If petitioner were sincere
in its intention to reinstate private respondent, petitioner should have at the
very least reinstated him in its payroll right away. We are thus constrained to
conclude that private respondent should be paid by petitioner not only the
sum of P26,866.64 awarded by the NLRC, but the petitioner should be held
liable for the entire amount of backwages due the private respondent from
the day he was illegally dismissed up to the date of his reinstatement. Only
then could observance of labor laws be promoted and social justice upheld.
(Condo Suite Club Travel, Inc. vs. NLRC [G.R. No. 125671, 28 January
2000])
We agree that no full backwages from the time their pay was withheld up
to the time of actual reinstatement can be ordered paid to petitioners. R.A.
No. 6715, which amended Art. 279 of the Labor Code by requiring that an
And secondly, private respondents themselves, from the very start, had
already indicated their aversion to their continued employment in petitioner's
establishment. The very filing of their second case before Labor. (Congson
vs. NLRC [G.R. No. 114250, 05 April 1995])
As the Court held in Globe-Mackay Cable and Radio Corporation v.
NLRC, 206 SCRA 701 [1992], citing]; Sibal v. Notre Dame of Greater Manila,
182 SCRA 538 [1990]:Obviously, the principle of "strained relations" cannot
be applied indiscriminately. Otherwise reinstatement can never be possible
simply because some hostility is invariably engendered between the parties
as a result of litigation. That is human nature.
Besides, no strained relations should arise from a valid and legal act of
asserting one's right; otherwise an employee who shall assert his right could
be easily separated from the service, by merely paying his separation pay on
the pretext that his relationship with his employer had already been strained.
(Anscor Transport and Terminals v. NLRC [190 SCRA 147, 1990])
taken into account. It is our view that herein private respondents had not fully
acted in good faith. However, we are cognizant that a cooperative promotes
the welfare of its own members. The economic benefits filter to the
cooperative members. Either equally or proportionally, they are distributed
among members in correlation with the resources of the association utilized.
Cooperatives help promote economic democracy and support community
development. Under these circumstances, we deem it proper to reduce
moral damages to only P10,000.00 payable by private respondent NEECO I
to each individual petitioner. We also deem it sufficient for private respondent
NEECO I to pay each individual petitioner P5,000.00 to answer for
exemplary damages, based on the provisions of Articles 2229 and 2232 of
the Civil Code.
(Nueva Ecija I Electric Cooperative, Inc. vs. NLRC [G.R. No. 116066, 24
January 2000])
Separation Pay
Finally, we hold that the contention of Sweet Lines that separation pay
and back wages are inconsistent with each other is not well-taken.
Separation pay is granted where reinstatement is no longer advisable
because of strained relations between the employee and the employer. Back
wages represent compensation that should have been earned but were not
collected because of the unjust dismissal. The bases for computing the two
are different, the first being usually the length of the employee's service and
the second the actual period when he was unlawfully prevented from
working.
We have ordered the payment of both in proper case as otherwise the
employee might be deprived of benefits justly due him. Thus, if an employee
who has worked only one year is sustained by the labor court after three
years from his unjust dismissal, granting him separation pay only would
entitle him to only one month salary. There is no reason why he should not
also be paid three years back wages corresponding to the period when he
could not return to his work or could not find employment elsewhere. (Lim vs.
NLRC [G.R. No. 79907, 16 March 1989])
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There should be no question that where it comes to such valid but not
iniquitous causes as failure to comply with work standards, the grant of
separation pay to the dismissed employee may be both just and
compassionate, particularly if he has worked for some time with the
company. For example, a subordinate who has irreconcilable policy or
personal differences with his employer may be validly dismissed for
demonstrated loss of confidence, which is an allowable ground. A working
mother who has to be frequently absent because she has also to take care
of her child may also be removed because of her poor attendance, this being
another authorized ground. It is not the employee's fault if he does not have
the necessary aptitude for his work but on the other hand the company
cannot be required to maintain him just the same at the expense of the
efficiency of its operations. He too may be validly replaced. Under these and
similar circumstances, however, the award to the employee of separation pay
would be sustainable under the social justice policy even if the separation is
for cause.
But where the cause of the separation is more serious than mere
inefficiency, the generosity of the law must be more discerning. There is no
doubt it is compassionate to give separation pay to a salesman if he is
dismissed for his inability to fill his quota but surely he does not deserve such
generosity if his offense is misappropriation of the receipts of his sales. This
is no longer mere incompetence but clear dishonesty. A security guard found
sleeping on the job is doubtless subject to dismissal but may be allowed
separation pay since his conduct, while inept, is not depraved. But if he was
in fact not really sleeping but sleeping with a prostitute during his tour of duty
and in the company premises, the situation is changed completely. This is
not only inefficiency but immorality and the grant of separation pay would be
entirely unjustified.
We hold that henceforth separation pay shall be allowed as a measure of
social justice only in those instances where the employee is validly dismissed
for causes other than serious misconduct or those reflecting on his moral
character. Where the reason for the valid dismissal is, for example, habitual
intoxication or an offense involving moral turpitude, like theft or illicit sexual
relations with a fellow worker, the employer may not be required to give the
dismissed employee separation pay, or financial assistance, or whatever
other name it is called, on the ground of social justice.
A contrary rule would, as the petitioner correctly argues, have the effect
of rewarding rather than punishing the erring employee for his offense. And
we do not agree that the punishment is his dismissal only and that the
separation pay has nothing to do with the wrong he has committed. Of
course it has. Indeed, if the employee who steals from the company is
granted separation pay even as he is validly dismissed, it is not unlikely that
he will commit a similar offense in his next employment because he thinks he
can expect a little leniency if he is again found out. This kind of misplaced
compassion is not going to do labor in general any good as it will encourage
the infiltration of its ranks by those who do not deserve the protection and
concern of the Constitution. (PLDT vs. NLRC [G.R. No. 80609, 23 August
1988])
Thus, petitioner pointed out that the SEC's order suspending all claims
against it pending before any other court, tribunal or body was pursuant to
the rehabilitation receivership proceedings. Such order was necessary to
enable the rehabilitation receiver to effectively exercise its powers free from
any judicial or extra-judicial interference that might unduly hinder the rescue
of the distressed company. Since receivership proceedings have ceased and
petitioner's rehabilitation receiver and liquidator, Ledesma Saludo &
Associates, has been given the imprimatur to proceed with corporate
liquidation, the cited order of the Securities and Exchange Commission has
been rendered functus officio. Thus, there is no legal impediment for the
execution of the decision of the Labor Arbiter for the payment of separation
pay.
Considering that petitioner's monetary obligation to private respondent is
long overdue and that petitioner has signified its willingness to comply with
such obligation by entering into an agreement with private respondent as to
the amount and manner of payment, petitioner can not delay satisfaction of
private respondent's claim. However, due to events subsequent to the filing
of this petition, private respondent must present its claim with the
rehabilitation receiver and liquidator of petitioner, subject to the rules on
preference of credits. (Alemar's Sibal & Sons, Inc. vs. NLRC [G.R. No.
114761, 19 January 2000])
It must be emphasized that the right of employee to demand separation
pay and backwages is always premised on the fact that the employee was
terminated either legally of illegally. The award of backwages belongs to an
illegally dismissed employee by direct provision of law and it is awarded on
74
grounds of equity for earnings which a worker or employee has lost due to
illegal dismissal. Separation pay, on the other hand, is awarded as an
alternative to illegal dismissed employees where reinstatement is no longer
possible. (Jo Cinema vs. Abellana [G.R. No. 132837, 28 June 2001])
Financial Assistance
With regards to the award of financial assistance to petitioner, We find
that the same is not justified. Petitioner's willful disobedience of the orders of
her employer constitutes serious misconduct. As We held in the case of Del
Monte Phils., Inc. vs. NLRC, "henceforth, separation pay shall be allowed as
a measure of social justice only in those instances where the employee is
validly dismissed for causes other than serious misconduct or those
reflecting on his moral character". Hence, the employer, CLUB, may not be
required to give the petitioner separation pay, or financial assistance, or
whatever other name it is called, on the ground of social justice. (Aguilar vs.
NLRC [G.R. No. 100878, 02 December 1992])
appears that private respondents did not qualify for the benefits of R.A. No.
7641 under the terms of this law itself. The Court notes that when private
respondents filed their complaints more than one (1) year after they had
been allegedly illegally dismissed, respondent Ausan, Jr. was fifty-seven (57)
years old while respondent Alanan was sixty (60) years old. That would make
Ausan, Jr. fifty-five (55) years old and Alanan fifty-eight (58) years old at the
time their services with petitioner were ended by their resignation. Since the
record does not show any retirement plan or collective bargaining agreement
providing for retirement benefits to petitioner's employees, the applicable
retirement age is the optional retirement age of sixty (60) years according to
Article 287, which would qualify the retiree to retirement benefits equivalent
to one-half (1/2) month's salary for every year of service. Unfortunately, at
the time private respondents stopped working for petitioner, they had not yet
reached the age of sixty (60) years.
We stress, however, that there is nothing to prevent petitioner from
voluntarily giving private respondents some financial assistance on an ex
gratia basis. (CJC Trading, Inc. vs. NLRC [G.R. No. 115884, 20 July 1995])
Worker preference
(4) The amendatory provisions of Republic Act 6715, which took effect on
21 March 1989, should only be given prospective application.
(DBP vs. NLRC [G.R. No. 86227, 19 January 1994])
PD No. 902-A is clear that all actions for claims against corporations,
partnerships or associations under management or receivership pending
before any court, tribunal, board or body shall be suspended accordingly.
The law did not make any exception in favor of labor claims.
The justification for the automatic stay of all pending actions for claims is
to enable the management committee or the rehabilitation receiver to
effectively exercise its/his powers free from any judicial or extrajudicial
interference that might unduly hinder or prevent the rescue of the debtor
company. To allow such actions to continue would only add to the burden of
the management committee or rehabilitation receiver, whose time, effort and
resources would be wasted in defending claims against the corporation
instead of being directed towards its restructuring and rehabilitation. Thus,
the labor case would defeat the purpose of the automatic stay. To rule
otherwise would open the floodgates to numerous claims and would defeat
the rescue efforts of the management committee. (Rubberworld vs. NLRC
[305 SCRA 721])
JURISDICTION
Regional Director
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(Section 10 of Republic Act No. 8042 [Migrant Workers and Overseas Filipinos
Act of 1995])
Bureau of Labor Relations
The Bureau of Labor Relations and the Labor Relations Divisions in the
regional offices of the Department of Labor and Employment 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, and all
disputes, grievances or problems arising from or affecting labor-management
relations in all workplaces whether agricultural or non-agricultural, except
those arising from the implementation or interpretation of collective
bargaining agreements which shall be the subject of grievance procedure
and/or voluntary arbitration.
The Bureau shall have fifteen (15) calendar days to act on labor cases
before it, subject to extension by agreement of the parties. (Article 226 of the
Labor Code)
Clearly, the Secretary of Labor and Employment has no jurisdiction to
entertain the appeal of ABBOTT. The appellate jurisdiction of the Secretary of
Labor and Employment is limited only to a review of cancellation proceedings
decided by the BLR in the exercise of its exclusive and original jurisdiction. The
Secretary of Labor and Employment has no jurisdiction over decisions of the
BLR rendered in the exercise of its appellate power to review the decision of the
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It is clear then that the Secretary of Labor and Employment did not commit
grave abuse of discretion in not acting an ABBOTT's appeal. The decisions of
the BLR on cases brought before it on appeal from the Regional Director are
final and executory. Hence, the remedy of the aggrieved party is to seasonably
avail of the special civil action of certiorari under Rule 65 of the Rules of Court.
(Abbott Laboratories vs. Abbott Laboratories Employees Union [G.R. No. 131374, 26
January 2000.)
Voluntary arbitrator
The Voluntary Arbitrator or panel of Voluntary Arbitrators shall have
original and exclusive jurisdiction to hear and decide all unresolved
grievances arising from the interpretation or implementation of the Collective
Bargaining Agreement and those arising from the interpretation or
enforcement of company personnel policies referred to in the immediately
preceding Article. Accordingly, violations of a Collective Bargaining
Agreement, except those which are gross in character, shall no longer be
treated as unfair labor practice and shall be resolved as grievances under
the Collective Bargaining Agreement. For purposes of this Article, gross
violations of a Collective Bargaining Agreement shall mean flagrant and/or
malicious refusal to comply with the economic provisions of such agreement.
The Commission, its Regional Offices and the Regional Directors of the
Department of Labor and Employment shall not entertain disputes,
grievances or matters under the exclusive and original jurisdiction of the
voluntary arbitrator or panel of voluntary arbitrators and shall immediately
dispose and refer the same to the grievance machinery or voluntary
arbitration provided in the collective bargaining agreement.
(Article 261 of the Labor Code)
Appeal
From Labor Arbiter to NLRC
Article 221 of the Labor Code mandates that technical rules of evidence
in courts of law shall not be controlling in any of the proceedings before the
Commission or the Labor Arbiters. Further, the Commission is required to
use every reasonable means to ascertain the facts without regard to
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The requirement that the employer post a cash or surety bond to perfect
its/his appeal is apparently intended to assure the workers that if they prevail
in the case, they will receive the money judgment in their favor upon the
dismissal of the employer's appeal. It was intended to discourage employers
from using an appeal to delay, or even evade, their obligation to satisfy their
employee's just and lawful claims. (Viron Garments Mfg., Co. vs. NLRC [G.R.
No. 97357, 18 March 1992])
There is a clear distinction between the filing of an appeal within the
reglementary period and its perfection. The latter may transpire after the end
of the reglementary period for filing the appeal.
Under Article 223 of the Labor Code, an appeal to the NLRC from the
decisions, awards or orders of the Labor Arbiter must be made "within ten
(10) calendar days from receipt of such decisions, awards or orders." Under
Section 3(a) of Rule VI of the New Rules of Procedure of the NLRC, the
appeal fees must be paid and the memorandum of appeal must be filed
within the ten-day reglementary period.
Neither the Labor Code nor its implementing rules specifically provide for
a situation where the appellant moves for a reduction of the appeal bond.
Inasmuch as in practice the NLRC allows the reduction of the appeal
bond upon motion of appellant and on meritorious grounds, it follows that a
motion to that effect may be filed within the reglementary period for
appealing. Such motion may be filed in lieu of a bond which amount is being
contested. In the meantime, the appeal is not deemed perfected and the
Labor Arbiter retains jurisdiction over the case until the NLRC has acted on
the motion and appellant has filed the bond as fixed by the NLRC. (Star
Angel Handicraft vs. NLRC [G.R. No. 108914, 20 September 1994])
The precipitate filing of this special civil action for certiorari without first
moving for reconsideration of the assailed judgment of NLRC warrants the
outright dismissal of this case. As we consistently held in numerous cases, a
motion for reconsideration is indispensable for it affords the NLRC an
opportunity to rectify errors or mistakes it might have committed before resort
to the courts can be had.
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It is settled that certiorari will lie only if there is no appeal or any other
plain, speedy and adequate remedy in the ordinary course of law against
acts of public respondent. 5 In the case at bar, the plain and adequate
remedy expressly provided by law was a motion for reconsideration of the
impugned decision, based on palpable or patent errors, to be made under
oath and filed within ten (10) days from receipt of the questioned judgment of
the NLRC, a procedure which is jurisdictional. Hence, original action of
certiorari, as in this case will not prosper.
Further, not having filed a motion for reconsideration within the ten-day
reglementary period, the questioned order, resolution or decision of NLRC,
becomes final and executory after ten (10) calendar days from receipt
thereof. Thus, as regards petitioner, the decision of NLRC became final and
executory on December 7, 1995. Consequently, the merits of the case can
no longer be reviewed to determine if the respondent NLRC could be faulted
of grave abuse of discretion. (Lagera vs. NLRC [G.R. No. 123636, 31 March
2000])
Generally, certiorari as a special civil action will not lie unless a motion for
reconsideration is filed before the respondent tribunal to allow it an
opportunity to correct its imputed errors. However, the following have been
recognized as exceptions to the rule: Where 1.
The order is a patent nullity, as where the court a quo has no
jurisdiction;
2.
The questions raised in the certiorari proceedings have been duly
raised and passed upon by the lower court, or are the same as
those raised and passed upon in the lower court;
3.
There is an urgent necessity for the resolution of the question and
any further delay would prejudice the Government or of the
petitioner or the subject matter of the action is perishable;
4.
Under the circumstances, a motion for reconsideration would be
useless;
5.
Petitioner is deprived of due process and there is extreme
urgency of relief;
6.
In a criminal case, relief from an order of arrest is urgent and the
granting of such relief by the trial court is improbable;
7.
The proceedings in the lower court are a nullity for lack of due
process;
8.
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HOLD OVER PRINCIPLE states that it shall be the duty of both parties to keep the
status quo and continue in full force and effect the terms and conditions of the
existing CBA during the 60-day freedom period and/or until a new agreement is
reached by the parties. (Meralco vs. Secretary of Labor [G.R. No. 127598, 01
August 2000])
81