Labor Relations – the interactions between the employer and employees and their representatives and the mechanism

by with the standards and other terms and conditions of employment are negotiated, adjusted and enforced. Labor Relations Law – define the statues, rights and duties and the institutional mechanisms that govern the individual and collective interactions of employers, employees or their representatives. Absent of an employer-employee relation, there is no labor relation to speak of. If there is no employer-employee relationship between the parties, there is no basis for organizing for purposes of collective bargaining. Labor Relations may be distinguished from labor standards, in that the latter is that part of labor law which prescribes the minimum terms and conditions of employment which the employer is required to grant to its employees. Chapter I General Provisions Art. 211 Declaration of Policy Collective bargaining process is possible only when there is a labor organization, example 1. Labor Union 2. Employee association Labor relations policy under the Labor Code is embodied in Section 3, Article XIII of the 1987 Constitution which guarantees to all workers their right, among others, to: a. b. c. d. Self-organization Collective bargaining and negotiations Peaceful and concerted activities including the right to strike in accordance with law; and Participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.

Parties to Labor Relations Cases 1. Employee’s Organization 2. Management; 3. The public-always to be considered in dispute between labor and capital, and it has been held that the rights of the general public are paramount; and 4. The State Employer and employees are ACTIVE parties while the public and the state are PASSIVE parties. Principle of Non-Oppression – mandates capital and labor not to act oppressively against each other or impair the interest and convenience of the public. The protection to labor clause in the Constitution is not designed to oppress or destroy capital.

Article 211 Mentions: 1. Conciliation 2. Mediation 3. Voluntary Arbitration As alternative modes of settlement of labor dispute to the more adversarial strikes look outs of any mass concentrated actions. Conciliation – process where a disinterested third party meets with management and labor, at their request or otherwise during a labor dispute or in collective bargaining conferences and by cooling tempers aids in reaching an agreement. Mediation – a third party studies each side of the dispute then makes proposals for the disputants to consider. But a mediator cannot make an award or render a decision. Arbitration – the submission of a dispute to an impartial person for determination on the basis of evidence and arguments of the parties. The arbiter’s decision or award is enforceable upon the disputants. This maybe voluntary or compulsory. Chapter II. Definitions Art. 212: Definitions of EMPLOYER 1. One who employs the service of others, one for whom employees work and who pays their wages or salaries. 2. Any person acting in interest of an employer, directly or indirectly. The term does not include a labor organization or any of its officers and agents, except when acting as an employer. The mere fact that respondent is a labor union does not mean it cannot be considered an employer for persons who work for it. Much less should it be exempted from labor laws. Definitions of Employee 1. Any person in the employ of an employer 2. Any individual whose work has ceased as a result of or in connection with any current labor dispute or because of any unfair labor practice if he has not obtained any other substantially equivalent and regular employment; 3. One who has been dismissed from work but the legality of the dismissal is being contested in a forum of appropriate jurisdiction. The term shall not be limited to the employees of a particular employer unless the code explicitly states.

Types of Employees under the Labor Code 1. Managerial 2. Supervisory 3. Rank-and-file Labor Organizatiion – any union or association of employees which exists in whole or in part for the purpose of collective bargaining with employers concerning terms and conditions of employment.

Legitimate Labor Organization – any labor organization which is duly registered with Department of Labor and Employment; the term includes a local/chapter directly chartered by a legitimate federation or national union which has been duly reported to the Department in accordance with Section 2 Rule VI, Book V, IRR of LC. Company Union – any labor organization whose formation, function or administration has been assisted by any act defined as ULP under the Labor Code. Bargaining Representative – a legitimate labor organization whether or not employed by the employer. Labor Dispute – includes any controversy or matter concerning: 1. Terms or conditions of employment; OR 2. Association or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment. Regardless of whether the disputants stand in the proximate relation of employer and employee. Test: Depends on whether it involves or concerns terms, conditions of employment, or representation. Even the question of employer-employee relationship can be considered a labor dispute. Types of labor Disputes 1. Labor Standards Disputes a. Compensation b. Benefit c. Working Conditions 2. Labor Relations Disputes a. Organizational right dispute/unfair labor practice b. Representation disputes c. Bargaining disputes d. Contract administration or personnel policy disputes e. Employment tenure disputes

Parties to a Dispute 1. Primary Parties a. Employer b. Employees c. Union 2. Secondary Parties a. Voluntary arbitrator b. Agencies of Dole c. NLRC d. Office of the President Managerial Employee – one who is vested with powers or prerogatives to lay down and execute management policies and/or to hire, transfer, suspend, lay off, recall, discharge, assign or discipline employees. Supervisory Employees – those who, in the interest of the employer, effectively recommend such managerial actions if the exercise of such authority is not merely routinely or clerical in nature but requires independent judgment. All employees not falling within any of the above definitions are rank and file employees. Voluntary Arbitrator 1. Any person accredited by the board as such; or 2. Any person named or designated in the CBA by the parties to act as their Voluntary Arbitrator; or 3. One chosen with or without the assistance of the National Conciliation and Mediation Board pursuant to a selection procedure agreed upon in the CBA ; or 4. Any official that may be authorized by the Secretary of Labor to act as Voluntary Arbitrator upon the written request and agreement of the parties to a labor dispute. Title Two National Labor Relations Commission Chapter I Creation and Composition Art. 213 National Labor Relations Commission (as Amended by R.A. 9347,July 27, 2006) NLRC- an administrative body with quasi-judicial functions and the principal government agency that hears and decides labor management disputes; attached to the DOLE for program and policy coordination only.

Composition   1 Chairman; and 23 Members.

Eight members each, shall be chosen only from among the nominees of the workers and employers organizations repectively. The chairman and the seven remaining members shall come from the public sector, with the latter to be chosen preferably from among the incumbent labor arbiters. Upon assumption into office, the members nominated by the workers and employers organization shall divest themselves of any affilation with, or interest in the federation or association to which they belong. Note: The composition of the NLRC is tirsectoral. Tripartism is representation of the three sectorspublic or government, employers and the workers – in policy- making bodies of the government. Tripartism is observed in numerous government agencies or instrumentalities among them, the NLRC. There is no need for the Commission on Appointments to confirm the positions in the NLRC. Such requirements has no constitutional basis . (Calderon v. Carale, Gr No. 91636, April 23, 1992). Allocation of Powers and Functions of NLRC En Banc 1. Promulgating rules and regulations governing the hearings and disposition of cases before any of its divisions and regional branches. 2. Formulating policies affecting its administration and operations and 3. On temporary or emergency basis, to allow cases within the jurisdiction of any division to be heard and decided by any other division whose docket allows the additional workload and such transfer will not expose litigants to unnecessary additional expense.

Division (Eight Divisions Each With 3 Members) 1. Adjudicatory; 2. All other powers, functions and duties; and 3. Exclusive appellate jurisdiction over cases within their respective territorial jurisdiction. Adjudication of Cases (Triple C) 1. The NLRC adjudicates cases by division. A concurrence of 2 votes is needed for a valid judgment.

(Whenever the required membership in a division is not complete and the concurrence of the commissioners to arrive at a judgment or resolution cannot be obtained, the Chairman shall designate such number of additional commissioners from the other divisions as may be necessary.) 2. It shall be mandatory for the division to meet for purposes of consultation. The conclusion of a division on any case submitted to it for decision should be reached in consultation before the case is assigned to a member for writing of the opinion.

3. A Certification to this effect signed by the presiding commissioner of the division shall be issued ( copy attached to the record of the case and served upon the parties). Qualifications of the Chairman and the Commissioners (Art. 215) 1. Must be member of the Philippine Bar; 2. Must have been engaged in the practice of law in the Philippines for at least 15 years; 3. Must have experience or exposure in handling labor management relations for at least 5 years; and 4. Preferably a resident of the region where he is to hold office.

Qualifications of Executive Labor Arbiters/Labor Arbiters (Art. 215) 1. Must be members of the Philippine Bar; 2. Must have been engaged in the practice of law in the Philippines for at least 10 years; and are merely suppletory in character vis-à-vis labor disputes which are primarily governed by labor laws (Montoya v. Escayo, GR Nos. 82211, March 21, 1989).

ART. 214: HEADQUARTERS, BRANCHES AND PROVINCIAL EXTENSION UNITS The Commission and its first, second, third, fourth, fifth and sixth divisions shall have their main offices in METROPOLITAN MANILA, and the seventh and eighth divisions in the cities of CEBU and CAGAYAN DE ORO, respectively. ART. 216: SALARIES, BENEFITS AND OTHER EMOLUMENTS  The Chairman and members of the Commission shall have the same rank, received an annual salary equivalent to, and be entitled to the same allowances, retirement and benefits as, those of the Presiding Justice and Associates Justices of the Court of Appeals, respectively.

Labor Arbiters shall have the same rank, receive an annual salary equivalent to and be entitle to the same allowances, retirement and other benefits and privileges as those of the judges of the regional trial courts.

CHAPTER II. POWERS AND DUTIES ART.217: JURISDICTION OF LABOR ARBITERS AND THE COMMISSION Exclusive and Original Jurisdiction of Labor Arbiters EXCEPT as otherwise provided under this Code, the Labor Arbiters shall have original and exclusive Jurisdiction to hear and decide, WITHIN 30. CALENDAR DAYS after the submission of the case by the parties for decision without extension, even in the absence of stenographic note, the following cases involving all workers, whether agricultural or non-agricultural: (UTR-DV-EeOCDO) 1. ULP cases; 2. Termination disputes; 3. If accompanied with a claim for Reinstatement, those that workers file involving wages, rates of pay, hours of work and other terms and conditions of employment; 4. Claims for actual, moral, exemplary and other forms Damages arising from Er-Ee relations; 5. Cases arising from Violation of Art.264 including questions involving the legality of strikes and lockouts; 6. Except claims for Employment Compensation, Social Security, Philhealth and maternity benefits, all other claims arising from Er-Ee relations, including those of persons in domestic or household service, involving an amount exceeding P5,000.00 regardless of whether accompanied with a claim for reinstatement; 7. Monetary claims of overseas contract workers arising from Er-Ee relations under Migrant Workers act of 1995.; 8. Wage distortion disputes in unorganized establishments not voluntarily settled by the parties pursuant to RA 6727; 9. Enforcement of compromise agreements when there is non-compliance by any of the parties pursuant to ART. 227 of the Labor Code as amended; and 10. Other cases as maybe provided by law. Note: Although the provision speaks of EXCLUSIVE AND ORIGINAL JURISDICTION OF Labor Arbiters, the cases enumerated may instead be submitted to a voluntary arbitrator bt agreement of the parties under Art. 262. The law prefers voluntary over compulsory arbitration. The cases that a Labor Arbiter can hear and decide and are employment related. Where no Er-Ee relationship exist between the parties and no issue is involved which may be resolved by the reference to the Labor Code, other labor statutes, or any collective bargaining

agreement, it is the Regional Trial Court that has Jurisdiction ( Lapanday Agricultural Dev’t. Corp v. CA, GR no. 112139, January 31, 2000). The Labor arbiter has jurisdiction over controversies involving employers and employees only if there is a “reasonable causal connection between the claim asserted and the employer-employee relations. Absent such a link the complaint is cognizable by the regular Court (EVIOTACA, July 29, 2003). The original and exclusive jurisdiction of the Labor Arbiter under Art. 217 © for the money claims limited only to those arising from statues of contracts other than the CBA (San jose v NLRC GR No. 121227 August 17, 1998). Cases which must be referred to grievance machinery and voluntary arbitration The following are cases which must be disposed of by the Labor Arbiter by referring the same to the grievance machinery and voluntary arbitration: 1. Disputes on the interpretation or implementation of CBA; and 2. Disputes on the interpretation or enforcement of the company personnel policies.

No Jurisdiction over the Following: 1. Foreign governments ( JUSMAG-Philippines v. NLRC GR No. 108813 December 15, 1994); except when the function of the foreign entity partakes of the nature of a proprietary activity, it implied divested itself of its sovereign immunity from suits. 2. International agencies ( Lasco v. UNRFNRE GR No. 109095-109107, February 23, 1995); 3. Intra-corporate disputes which fall under P.D. 902-A and now fall under the jurisdiction of the regular courts pursuant to the new Securities Regulation Code (Nacpil v. IBC, GR 144767, march 21, 2002); 4. Executing mone claims against government ( DAR v. NLRC, GR No. 104269, November 11, 1993); 5. Cases involving GOCCs with original charters which are governed by civil service law, rules or regulations ( Art. IX-B, service law rules or regulations ( ART. IX-B, Sec. 2 No. 1, 1987 Const ); 6. Local water district ( Tanjay Water District v. Gabaton, GR Nos. 63742 and 84300, April 17, 1989) except where NLRC jurisdiction is invoked ( Zamboanga City Water District v. Buat, GR No. 104389, May 27,1994); 7. The aggregate money claim does not exceed 5,000 pesos and without claim for reinstatement (Rajah Humabon Hotel, Inc v. Trajano, GR No. 100455 September 17, 1993); 8. Claim of employee for cash prize under the innovation Program of the company although arising from employer-employee relationship, is one requiring application of

9.

10. 11. 12.

general civil law on contracts which is within the jurisdiction of the regular courts ( San Miguel Corp. v. NLRC, GR No L-80774, May 31, 1988); Cause of action is based on quasi-delict or tort which has no reasonable connection with any of the claims enumerated in Art. 217 of the Code ( Ocheda v. CA GR No. 85517, October 16, 1992); Complaint arising from violation of a training agreement ( Singapore Airlines v. Pano, GR No. L-47739, Jun 22, 1983); When the Labor Arbiter is an inconvenient Forum under the Doctrine of Forum Non Conveniens ( Communication Materials and Design Inc. vs CA, 260 SCRA 673, ( 1996). Termination of membership in a Cooperative organized under RA No. 6938 otherwise known as the Cooperative Code of the Philippines.

2005 NLRC Rules of Procedure on Venue of Filling Cases 1. All cases which Labor Arbiter have authority to decide may filed in the Regional Arbitration Branch (RAB) having jurisdiction over the workplace of the complaint/petitioner. Note: WORKPLACE is understood to be the place or locality where the employee is regularly assigned when the cause of action arose. It shall include the place where the employee is supposed to report back after a temporary detail, assignment, or travel. In case of field employees, as well as ambulant or itinerant workers, their workplace is: a. Where they are regularly assigned; b. Where they are supposed to regularly received their salaries and wages; c. Where they received their work instruction from, and d. Report the result of their assignment to their employers. Where 2 or more RABSs have jurisdiction over the workplace, the first to acquire jurisdiction shall exclude others Improper venue when not objected to before filling of position papers shall be deemed waived. Venue may be changed by written agreement of the parties or when the Commission or the Labor Arbiter so orders, upon motion by the proper party in meritorious cases. For overseas contract workers where the complaint resides or where the principal office of the respondent employer is located at the option of the complaint

2. 3. 4. 5.

The Rules of Procedure on Venue was merely permissive allowing a different venue when the interest of substantial justice demands a different one ( Dayag v. Canizares, GR No. 124193, March 06, 1998)

Service of Summons In the absence of service of summons or a valid waiver thereof, the hearings and judgment rendered by the labor arbiter are null and void.

Compulsory Arbitration The process of settlement of labor disputes by a government agency which has the authority to investigate and make award binding on all the parties. Labor arbiter has the authority to conduct compulsory arbitration (PAL v. NLRC, GR No. 55159, December 22, 1989). Note: The NLRC may conduct compulsory arbitration ONLY in national interest cases referred to it by the DOLE Secretary. ART. 218: POWER OF THE COMMISSION Powers of the NLRC(RCI-COI) 1. Rule making power ( promulgation of rules and regulations: a. governing disposition of cases before any of its divisions/ regional offices; b. pertaing to its internal functions c. as may be necessary to carry out the purposes of this Code) 2. Power to issue Compulsory processes ( administer oaths, summon parties, issue subpoenas); 3. Power to Investigate matters and hear disputes within its jurisdiction ( adjudicatory power—original and appellate jurisdiction); 4. Contemp power 5. Ocukar inspection ( Art. 219); and 6. Power to issue injunctions and restraining orders.

Injunction or TRO Oders which may require, forbid, or stop the doing of an act. The power of the NLRC to enjoin or restrain the commission of any or all prohibited or unlawful acts under Article 218 of the Labor code can be exercised in a labor dispute. Note: A restraining order is not an injunction at all but a writ to compel parties to maintain the matters in controversy in status quo until the question of whether or not a temporary or preliminary injunction ought to be issued may be determined. ( BF homes v. Reyes, March 16, 1971)

Who May issue 1. President ( Art. 263 (g)); 2. Secretary of Labor ( Art. 262(g) ; and 3. NLRC ( Art. 218); Note: There is no law which empowers Labor Arbiters to issue a TRO or injunction. Hence, Labor Arbiters cannot issue a TRO or an injunction. Matter in controversy and which is appropriate to the particular circumstances of the case. If the remedy is pecifically provided by law, it is presumed to be adequate e. That public officers charged with the duty to protect complainants property are unable or unwilling to furnish adequate protection 7. Posting a bond. Injunction from NLRC is NOT the Proper Remedy against Employee Dismissal The power of the NLRC to issue an injunctive writ originates from any labor dispute upon application by a party thereof, which application if not granted may cause grave or irreparable damage to any party or render ineffectual any decision in favor of such party. It is an essential requirement that there must first be a labor dispute between the contending parties before the labor arbiter. In the present case, there is no labor dispute between the petitioner and private respondent as there has yet been no complaint for illegal dismissal filed with the labor arbiter. Requisites Before TRO May be Issued Ex Parte 1. The complainant shall allege that, unless a TRO is issued without notice, a substantial and irreparable injury to complainant’s property will be unavoidable; 2. There is testimony under oath, sufficient, if sustained, to justify the Commission in issuing a temporary injunction upon hearing after notice and 3. The complainant shall first file an undertaking with adequate security /bond in an amount to be fixed by the Commission sufficient to recompense those enjoined for any loss, expenses or damage caused by the improvident or erroneous issuance of such order or injunction, including all reasonable costs, together with a reasonable attorneys fee, granting of any injunctive relief sought in the same proceeding and subsequently denied by the commission. Note: The TRO shall be effective for NO LONGER THAN 20 DAYS upon the posting of a bond, and shall become void after the expiration date of the 20 day period. It may be lifted or it may be upgraded to a permanent injunction. The TRO takes effect upon its issuance, if a bond is posted and not upon receipt of the parties. The procedural and substantial requirements of Art 218(e) must be strictly complied with before an injunction may issue in a labor dispute.

Art. 219: OCULAR INSPE CTION The chairman, any commissioner, Labor Arbiter or their duly authorized representatives may, at any time during working hours: 1. Conduct an ocular inspection on any establishment, building, ship, place, or premises, including any work, material, implement, machinery, appliance or any object therein; and 2. Ask any employee, laborer, or any person as the case may be for any information or date concerning any matter or question relative to the object of the investigation. Art. 221: TECHNICAL RULES NOT BINDING AND PRIOR RESORT TO AMICABLE SETTLEMENT Technical Rules NOT Binding Administrative and quasi-judicial bodies like the NLRC are not bound by technical rules of th e procedure in the adjudication of cases. Rules of evidence are not strictly observed in the proceedings before the NLRC . A formal or trial-type hearing is not at all times and in all instances essential to due process parties are afforded reasonable opportunity to explain their side of the controversy at hand. Res Judicata applies only to judicial or quasi-judicial proceedings and not to the exercise of administrative powers. Prohibited Pleadings and Motions under 2005 NLRC rules of procedure 1. Motion to dismiss the complaint except on the ground of jurisdiction over the subject matter, improper venue, res judicata, prescription and forum shopping 2. Motion for Bill of Particulars 3. Motion for New Trial; 4. Petition for Relief from Judgment when filed with the labor arbiter; 5. Petiotion for Certiorati, Prohibiiton and Mandamus; 6. Motion to declare respondent in default and 7. Motion for reconsideration or appeal from any interlocutory order of the labor arbiter. Amicable Settlement The labor Arbiter shall exert all efforts to arrive at an amicable settlement of a labor dispute within its jurisdiction on or before its first hearing or during the mandatory conferences set for the purpose. Approval of a Compromise Agreement by a Labor Arbiter The compromise agreement shall be approved by the Labor Arbiter, if: 1. After explaining to the parties, particularly to the complainants, the terms and conditions and consequences thereof; 2. He is satisfied that they understand the agreement; 3. That the same was entered into freely and voluntarily by them; 4. And that it is not contrary to law, morals and public policy (ibid)

ART. 222: APPEARANCES AND FEES Appearance of Non-Lawyers before the Commission General Rule: ONLY lawyers can appear before the NLRC or a Labor Arbiter. EXCEPTIONS: Non-Lawyers can appear ONLY in the following instances: 1. He represents himself as party to the case; 2. He represents a legitimate labor organization which is a party to the case provided that he shall be made to present a verified certification form said organization that he is properly authorized 3. He represents a member or members of a legitimate labor organization existing in employer’s establishment; 4. He is duly accredited member of any legal aid office duly recognized by the DOJ or IBP, 5. He is the owner or president of a corporation or establishment which is a party to the case. (sec. 8, 2005 NLRC Rules) Attorney’s Fees 1. Art. 111 (simple monetary claim) a. The maximum amount to be given a lawyer for his legal assistance rendered is 10% of the total monetary award adjudged the employees excluding the award for moral and exemplary damages. To demand more than this is unlawful. b. The attorney’s fees may be awarded ONLY when the withholding of wages is declared unlawful. c. The basis of the 10% attorney’s fees is the amount of the wages recovered. d. Should there be any other monetary awards given in the proceedings, the same may not be assessed or subjected to the 10% attorney’s fees. 2. Art. 222 a. Attorney’s fees for CBA negotiations and conclusion shall be in the amount agreed upon by the parties to be taken from the union funds and not from individual union members b. This article prohibits the payment of attorney’s fees only where the same is effected through forced contributions from the workers from their own funds as distinguished from union funds. c. Neither the lawyer nor the union itself may require the individual workers to assume he obligation to pay the attorney’s fees from their own pockets. Any agreement to the contrary shall be null and void. Art. 111 Art. 222 Prohibits the award of attorney’s fees which Prohibits the payment of attorney’s fees only exceeds 10% of the amount of wages when it is effected through forced recovered. contribution from the workers from their own funds as distinguished from union funds. Purpose to fix the limit on the amount of Purpose to prevent the imposition on the attorney’s fees. The victorious party may workers of the duty to individually contribute recover in any administrative or judicial the respective shares in the fee to be paid to proceeding. the attorney for his senior to the union.

Chapter III. APPEAL TO THE NLRC ART. 223: APPEAL

Grounds for Appeal (FLEP) 1. If the decision, order or award was secured through Fraud or coercion, including graft and corruption; 2. If made purely on questions of Law 3. If serious Errors in the findings of facts are raised which would cause grave or irreparable damage or injury to the appellant; and 4. If there Prima facie evidence of abuse of discretion on the part of the Labor Arbiter. Periods within which to Appeal 1. Decisions of the Regional Director – within 5 calendar days from receipt of the order (Art. 129,LC – Recovery of Wages and simple money claims of an amount not exceeding P 5,000) 2. Decisions of the Labor Arbiter- within 10 calendar days from the receipt of the decision. Note: The Code states calendar, not working days. Hence, in counting the 10-day period, Saturday, Sunday and Legal Holidays are INCLUDED. If the 10th or 5th day, as the case may be, falls on a Saturday, Sunday or Holiday, the last day to perfect the appeal shall be the first working day following such Saturday, Sunday or Holiday. No Motion for Reconsideration is available in questioning the Labor Arbiter’s decision. ( 2005 NLRC Rules) Period to Appeal NOT Extendible The perfection of an appeal within the statutory/reglementary period is not only MANDATORY but also JURISDICTIONAL and failure to do so renders the questioned decision final and executor as to deprive the appellate court of jurisdiction to alter the final judgment of the Regional Directors and Labor Arbiters Requisites for the Perfection of an Appeal to the NLRC (VTP-BPC) 1. Filing o a verified memorandum of appeal containing the grounds, issues raised and arguments propounded and reliefs sought within the required period of appeal and with a statement of the date appellant received the appealed decision, order of resolution; 2. In three legibly typewritten or printed copies; 3. Proof of payment of the required appeal fee; 4. In case of monetary award, an appeal by the employer may be perfected only by the posting of a bond ( cash deposit or surety bond) equivalent in amount to the monetary award exclusive of damages and attorney’s fees; 5. Proof of service upon the other parties; and 6. Certificate of non-forum shopping and verification. Note: Where the employer failed to post a bond to perfect its appeal, the remedy of the employee is a motion to dismiss the appeal, NOT a petition for mandamus.

The bond is sine qua non to the perfection of appeal from the labor arbiter’s monetary decision ( Catubay, et al. v. NLRC, GR No. 119289, April 12, 2000); property bond acceptable (UERM-Memorial Medical Center v. NLRC, GR No. 110419, March 3, 1997). No motion to reduce bond shall be entertained except no meritorious grounds and only upon the posting of a bond in a reasonable amount in relation to the monetary award. The mere filing of a motion to reduce bond without complying with these requisites will not stop the running of period appeal. Failure to give a copy of the appeal to the appellee within 10 days is not fatal IF the latter was not prejudiced by the delay in the service of said copy of the appeal- technical rules must yield to the broader interest of substantial justice. (Modern Fishing Gear Labor Union Noriel, GR No. 53907, May 5, 1988). Notice of Appeal A mere notice of appeal does NOT stop the running of the reglementary period of appeal. Execution Pending Appeal The decision of the labor arbiter ordering the reinstatement of a dismissed or separated employee shall be immediately executory insofar as the reinstatement aspect is concerned and the posting of an appeal bond by the employer shall not stay such execution. There is no need for a motion for issuance of writ of execution on the reinstatement order as it is selfexecutory (Pioneer Texturizing Corp. v. NLRC, GR No. 118651, October 16, 1997). Reinstatement Pending Appeal under Art. 223 vs. Order of Reinstatement under Art. 269. Art. 223 An order of reinstatement by the Labor Arbiter is immediately executor even pending appeal. It is similar to a return-to-work order i.e. to restore the status quo in the workplace for the meantime. Art. 279 On the other hand, the order of reinstatement under Art. 279 presuppose the award thereof is pursuant to a final and executor judgment, and not while the case for illegal dismissal is pending on appeal.

Options of the Employer in Complying with an Order of Reinstatement which is Immediate and SelfExecutory 1. He can ADMIT the dismissed employee back to work under the same terms and conditions prevailing prior to his dismissal or separation or to a substantially equivalent position if the former position is already filled up; OR 2. He can REINSTATE the employee merely in the PAYROLL with the payment of the accrued salaries. Note: The exercise of one of the foregoing options may be compelled under pain of contempt and the employer may be made to pay salary the employee instead.

Payroll Reinstatement: One where an employee is paid his monthly salary without making him performs actual work. It applies in termination cases where the labor court declares the dismissal illegal and orders reinstatement of the employee, but the employer does not want to actually or physically reinstate him instead, at the employee in the payroll pending appeal.

Judicial Review Rules No law allows an appeal from decision of the Secretary of Labor, or the NLRC, or of a voluntary arbitrator. Note: Decisions of Voluntary Arbitrators are appealable to the CA under RULE 43 OF THE RULES OF COURT in relation to Sec. 9 of BP Blg. 129. Voluntary Arbitrators are to be considered as quasi-judicial agencies whose decisions are appealable to the CA (Luzon Dev’t. Bank v. Association of Luzon Dev’t. Bank, GR No. 120319, October 6, 1995). 1. The way to review NLRC decision is by special civil action of certiorari, prohibition or mandamus under Rule 65 of the Rules of Court. Note: A petition for certiorari shall NOT STAY (or suspend) the execution of the assailed decision of the NLRC UNLESS a TRO is issued by CA or SC (Sec. 10, Rule XI, NLRC Rules, 2005). 2. Jurisdiction belongs to SC and CA, but in line with the doctrine on hierarchy of courts, the petition should be initially presented to the CA (St. Martin’s Funeral Home v. NLRC, GR No. 130866, September 16, 1988). 3. No motion for reconsideration is allowed for any order, decision or award of a labor arbiter. However, a Motion for Reconsideration of a Labor Arbiter’s decision, award or order which has all the elements of an appeal may be treated as appeal. 4. Only one Motion for Reconsideration of the decision, award or order of the commission in cases appealed before it is allowed. Procedure on Cases Originally Filed with the Labor Arbiter Labor Arbiter

Appeal to the NLRC Division (If appeal denied, MR; appeal from NLRC to the Sec. of Labor abolished under P.D. 1391)

Court of Appeals (Certiorari under Rule 65)

Supreme Court (Petition for Review under Rule 45)

ART.224 EXECUTION OF DECISIONS, ORDER OR AWARDS Who May Issue Writ of Execution 1. 2. 3. 4. 5. 6. Secretary of Labor Regional Director Commission Labor Arbiter Med- Arbiter, and Voluntary Arbitrator or Panel of Arbitrator.

When Writ of Execution May Be Issued The foregoing persons or entities may, upon their own initiative it or on motion of any interested party, issue a writ of execution on a judgment within 5 years from date it becomes final and executory. After the lapse of the said five year period, the judgment shall become dormant and may only be enforced by an independent action within the next five (5) years. (Phil. National railways vs. NLRC, G.R No. 81231, September 19, 1989) It is settled that once a decision or order becomes final and executor, it is removed from the power or jurisdiction of the court which rendered it to further alter or amend it. (Schering Employees Labor union vs. NLRC G.R No. 118586, Sept 25, 1998) except: 1. 2. 3. 4. When there are clerical errors or mistake. When the amendment or correction is meant to harmonize it with justice and the facts. When the same becomes necessary to accomplish the aims of justice. When there are supervening events justifying the amendments of correction. (Yu vs. NLRC, G.R. Nos. 111810-11, June 16, 1995)

Manner of Execution May Be Appealed Finality of judgment becomes a fact upon the lapse of the reglementary period of appeal and if no appeal is perfected. In such a situation, the prevailing party is entitled as a matter of right to a writ of execution. There is a big difference if, what is sought to be reviewed is not the decision itself but the manner of its execution. While it is true that the decision has become final and executory and so can no longer be challenged, there is no question either it must be enforced in accordance with its terms and conditions. The NLRC has authority to look into the correctness of the execution of the decision and to consider supervening events that may affect such execution (Abbot v. NLRC, GR No. L-65173, October 27, 1986). Remedies of a third party whose property has been wrongfully levied to enforce a decision (Cumulative) 1. Motion for Exclusion/ Release of the property wrongfully levied on execution;

2. Service by the third party claimant on the officer making the levy and upon the judgment creditor of an affidavit of title (Sec. 16, Rule 39, Rules of Court). This is also known as Terceria. 3. Independent civil action to recover the title and possession of the property wrongfully levied on execution (Sec. 16, Rule 39, Rules of Court) (See Yapangco Cotton Mills vs. CA et al. G.R No. 126322, January 16, 2002) RTC Injunction against NLRC Generally, not available HOWEVER, the general rule that no court has the power to interfere by injunction with judgments of another court with concurrent/coordinate jurisdiction applies ONLY when no third-party complaint is involved (Ibid). Therefore, if the property under levy does not belong to the judgment debtor in the NLRC case, it could not be validly levied upon by the sheriff for the satisfaction of the judgment therein. If the third party claimant does not involve nor grown out of a labor dispute, a separate action for injunctive relief against such levy may be maintained in court. (Co Tuan et al. v. NLRC and CLUP, GR No. 117232, April 22, 1998). TITLE THREE. BUREAU OF LABOR RELATIONS ART. 226: BUREAU OF LABOR RELATIONS ABSORPTION BY NCMB Pursuant E.O.126, the National Concillation and Madiation Board (NCMB)has absorbed the concillation, mediation and voluntary arbitration functions of the BLR. The BLR functions, as it now stands, are confined largely to union matters, collective bargaining and labor education. Jurisdiction over labor management problems or disputes is also exercised by other officer such as the DOLE regional offices, the Office of the Secretary of Labor, NLRC, POEA, OWWA, SSS-ECC, the regional wage and productivity boards, NWPC, and even the regular counts over intra-corporate disputes. Med- Arbiter- an officer in the regional office or bureau authorized to hear conciliate, and decide representation cases of assist in the disposition of intra or inter union disputes. Exclusive and Original Jurisdiction of the BLR To act on its own initiative or upon the request of either or both parties in all: 1. INTRA-union conflicts; 2. INTER-union conflicts; and 3. OTHER RELATED Labor Relations Disputes Other Related Labor Relations Disputes (Sec. 2, Rule XI D.O. 40-03) Shall include any conflict between a labor organization and the employer or any individual, entity, or a group that is NOT a labor organization or worker’s association.

This includes: a. Cancellation of registration of unions and worker’s association; and b. A petition for interpleader. Note: E.O. 251 OF 1987 removed from the jurisdiction if the BLR “all” labor-management disputes. The effect of E.O. 251 is to transfer to the NCMB the mediation, conciliation, and arbitration functions of the BLR. The parties may, by agreement, settle their differences by submitting their case to a voluntary arbitrator rather than taking the case to the BLR. E.O. 292 or the 1987 Administrative Code provides for the current functions and authority of the BLR: Sec. 16. Bureau of Labor Relations- The BLR shall: 1. Set policies, standards, and procedures on the registration and supervision of legitimate labor union activities including denial, cancellation and revocation of labor union permits; 2. Set policies, standards, and procedure relating to collective bargaining agreements, and the examination of financial records of accounts of labor organizations to determine compliance with relevant laws; 3. Provide proper orientation to workers on their schemes and project for the improvement of the standards of living of workers and their families. Intra- Union Disputes – refer to any conflict between and among union members, including grievances arising from any violation of the rights and conditions of membership, violation of or disagreement over any provision of the union’s constitution and by-laws, or disputes arising from chartering or affiliation. Inter-Union Disputes- refer to any conflict between and among legitimate labor organizations involving representation question of purposes of collective bargaining or to any other conflict or dispute legitimate labor organizations based on any violations of their rights as labor organizations. Coverage of Inter/Intra Union Disputes (Sec. 1, Rule XI, D.O.40-03) 1. Cancellation of registration of a labor organization filed by its members or by any other labor organization 2. Conduct of election of union and workers’ association officers/nullification of election of union and workers’ association officers; 3. Audit/accounts examination of union or workers’ association funds; 4. Deregistration of collective bargaining agreements (CBA); 5. Validity/invalidity of union affiliation or disaffiliation; 6. Validity/invalidity of acceptance/non-acceptance for union membership; 7. Validity/invalidity of impeachment/expulsion of union and workers’ association officers and members; 8. Validity/invalidity of voluntary recognition;

9. Opposition to application for union and CBA registration; 10. Violations of or disagreements over any provision in a union or workers’ association constitution and by-laws; 11. Disagreements over chartering or registration of labor organizations and collective bargaining agreements; 12. Violations of the rights and conditions of union or workers’ association membership; 13. Violations of the rights of legitimate labor organizations, except interpretation of collective bargaining agreements; 14. Such other disputes or conflicts involving the rights to self-organization, union membership and collective bargaining – a. Between and among legitimate labor organizations; b. Between and among members of a union or workers’ association.

Special Requirements as to the Filling of Cases: A. Involving Entire Membership 1. The complaint must be signed by at least 30% of the entire membership of the union 2. It must also show exhaustion of administrative remedies. Note: Imposition of fees by the union affects the entire membership; therefore, it requires that the complaint should be signed by at least 30% of the membership of the union. B. Involving Member Only In such case, only the affected member may file the complaint. Redress must first be sought within the union itself in accordance with its constitution and by-laws EXCEPT under any of the following circumstances. 1. 2. 3. 4. 5. 6. 7. 8. Futility of intra-union remedies; Improper expulsion procedure; The action is for damages; Lack of jurisdiction of the investigating body; Action of administrative agency is patently illegal, arbitrary and oppressive; Issue is purely a question of law; Where the administrative agency has already prejudged the case; and Where the administrative, agency was practically given an opportunity to act on the case but did not.

Effects of Filling or Pendency of Inter/ Intra-Union Dispute and other Labor Relations Disputes (Sec. 3, Rule XI, DO 40-03) 1. The rights, relationships and obligations of the parties litigants against each other and other parties-in-interest prior to the institution of the petition shall continue to remain during the

pendency of the petition and; until the date of finality of the decision rendered therein. Thereafter, the rights, relationships and obligations of the parties litigants against each other and other parties-in-interest shall be governed by the decision so ordered. 2. The filing or pendency of any inter/intra-union dispute and other related labor relations dispute is not a prejudicial question to any petition for certification election and shall not be a ground for the dismissal of a petition for certification election or suspension of proceedings for certification election. Modes of Appeal in Intra/Inter-Union Disputes (Rule XI, DO.40-03) HOW(Formal Requirements) 1. Under oath 2. Consists of a memorandum of appeal 3. Based on either of the following grounds: a. Grave abuse of discretion b. Gross violation of the rules 4. With supporting arguments and evidence Within 10 days from receipt of decision Bureau of Labor Relations- if the case originated from the Med-Arbiter/Regional Director Sec. of Labor- if the case originated from the Bureau Regional Office or the BLR where the complaint originated (records are transmitted to the BLR or Sec. within 24 hours from receipt of the memorandum appeal)

Period To whom appealable

WHERE filled

Flowchart of Appeal from Decisions of Med- Arbiters

Med- Arbiter/Regional Director

Appeal to BLR or to the Sec. of Labor if originated from the Bureau (Within 10 days from receipt of the decision)

Appeal to the Secretary of Labor

Summary of Rules on Intra/Inter-Union Disputes Who 1. For grounds under Sec. 1: any legitimate labor organization (LLO) members thereof especially concerned 2. For grounds under Sec.2 any-party-in-interest Where Filed 1. Regional Office that issued its certificate of registration or certificate of creation of chartered local- if it involves labor unions with independent registration, chartered locals, worker’s association, its officers of members. 2. Directly with the Bureau – if its involves a Federation/ National Unions/Industry Unions, its officers, or members. Formal Requirements 1. In writing; 2. Verified under oath 3. Contains the following averments: a. Name, address and other personal circumstances of the complainant(s) or petitioner(s); b. Name, address and other personal circumstances of the respondent(s) or person(s) charged; c. Nature of the complaint or petition; d. Facts and circumstances surrounding the complaint or petition; e. Cause(s) of action or specific violation(s) committed; f. A statement that the administrative remedies provided for in the constitution and by-laws have been exhausted or such remedies are not readily available to the complainant(s) or petitioner(s) through no fault of his/their own or compliance with such administrative remedies does not apply to complainant(s) or petitioner(s); 4. Relief(s) prayed for; 5. Certificate of non-forum shopping; and 6. Other relevant matters

Administrative Functions of the BLR 1. 2. 3. 4. The regulation of registration of the labor unions; The keeping of a registry of labor unions; The maintenance of a file of CBAs; and The maintenance of a file of all settlements or final decisions of the Supreme Court, Appeals, NLRC and other agencies on labor disputes.

Court of

Causes Where the BLR Has No Jurisdiction Those arising from the implementation or interpretation of Collective Bargaining Agreements which shall be subject of grievance procedure and/or voluntary arbitration.

ART. 227: COMPROMISE AGREEMENTS Substantial Requirements a. Must be freely entered into; b. Must not be contrary to law, morals or public policy; and c. Must be approved by the authority before whom the case is pending (see discussion on article 221—approval of labor arbiter of an amicable settlement in a case before him.) Formal Requirements 1. In writing; and 2. Signed in the presence of the regional director or his duly authorized representative. (Sec. 8, Rule II of the Rules on Disposition of Labor Standards Cases in the Regional Offices) When May Compromise Agreements Be Effected It may be effected at any stage of the proceedings and even when there is already a final executory judgment (Art. 2040 NCC). It cannot be entered into when the final judgment is already in the process of execution. (Jesalva, et al. vs. Bautista, GR No. L-11928-L-19330, March 24, 1959)

Compromise Agreements With v. Without Assistance of DOLE Without assistance of DOLE With the assistance of DOLE

A .VALIDITY/BINDING EFFECT - Valid and binding upon the parties

- Valid and binding upon the parties

- Can no longer be repudiated—becomes final and binding upon the parties upon - Can be repudiated by the parties by going to the execution EXCEPT Commission a. in case of non compliance with the compromise agreement; or if there is prima facie evidence that the NOTE: ULP cases are not subject to compromise. settlement was obtained through fraud, misrepresentation, or coercion. B. REPUDIATION

Options When Compromise Agreement is Violated   Enforce compromise by writ of execution Regard it as rescinded and insist upon original demand.

Requirements of a Valid Quitclaim (VAC) 1. The quitclaim must be voluntarily arrived at by the parties; 2. It must be with the assistance of the Bureau of Labor Standards, Bureau of Labor Relations or any representative of the DOLE; and 3. The consideration must be reasonable (required only when entered without the assistance of DOLE) Note: Dire necessity is not an acceptable ground for annulling the releases, especially in the absence of proof that the employees were forced to execute them. (Veloso vs. DOLE, GR No. 87297, August 5, 1991)

Waiver of Reinstatement Like waivers of money claims, a waiver of reinstatement must be regarded as a personal right which must be exercised personally by the workers themselves. (Jag & Haggar Jeans and Sportswear Corp. vs. NLRC, GR No. 105710, February 23, 1995) ART 231. REGISTRY OF UNIONS AND FILE OF COLLECTIVE AGREEMENT The CBA is more than a contract, it is highly impressed with public interest for it is an essential instrument to promote industrial peace. (TUP v. Laguesma, GR No. 95013, September 21, 1994) An UNREGISTERED CBA does not bar certification election [contract bar rule will not apply in the absence of registration. (See discussion on Arts. 253 & 253-A and 256) Procedure of Registration 1. Submission of copies of the CBA to the Bureau of Labor Relations or the regional offices of DOLE within 30 days from execution, accompanied by the following: a. Verified proof of posting in two conspicuous places in the place of work; and b. Verified proof of ratification by the majority of all the workers in the bargaining unit. 2. Action upon the application for registration of all workers 3. The regional office shall furnish the BLR with a copy of the CBA within five (5) days from its submission. 4. The BLR of Regional office shall assess the employer for every CBA, a registration fee not less than Php. 1,000.00 or any amount deemed appropriate by the Secretary of Labor. 5. Issuance of Certificate of Registration Note: Registration of the CBA is not a requisite for its validity.

The certification of the CBA by the BLR is not required to put a stamp of validity to such contract. Once it is duly entered into and signed by the parties, a CBA becomes effective as between the parties regardless of whether or not the same has been certified by the BLR. (Liberty Flour Mills Employees v. LFM Inc. GR Nos. 58768-70, December 29, 1989) ART 232. PROHIBITION ON CERTIFICATION ELECTION CONTRACT BAR RULE - While a valid and registered CBA is subsisting for a fixed period of 5 years , the Bureau is not allowed to hold an election contesting the majority status of the incumbent union except during the sixty (60) day period immediately prior to its expiration, which period is called the freedom period. Note: In the absence of such timely notice of filing of petition the contract executed during the automatic renewal period is a bar to certification of election. There shall be no amendment, alteration, or termination of any of the provisions of the CBA except to give notice of one party’s intention to amend, alter and terminate the provisions within the freedom period. Economic provisions of the CBA shall be renegotiated NOT LATER THAN THREE YEARS. The economic provisions with specific termination dates when renegotiated and signed within six months from their termination or expiration become retroactively effective the day the expiration become retroactively effective that day after the expiration if life beyond six (6) months, the effectivity will depend upon the agreement of the parties. (See discussion under Art.266) Requisites for Contract- Bar Rule 1. The agreement is existing i.e. the parties have duly executed it in conformity with the necessary formalities; 2. It was ratified by the union membership; 3. It is adequate for it contains substantial terms and conditions of employment 4. It encompasses the employees in the appropriate bargaining unit; 5. It was not prematurely extended, the CBA was not hastily entered into (doctrine of premature extension does not bar a certification election); 6. It is for a definite period; 7. No schism or mass disaffiliation affects the contracting union during the lifetime of the agreement; 8. The contracting union is not defunct; 9. The contracting union is not company-dominated (see discussions in Arts. 256-259 Petition for Certification Election).

ART 233. PRIVILEGED COMMUNICATION

PRIVILEGED COMMUNICATION - any statement of such privacy that the law exempts the person receiving the information from the duty to disclose it. Not Available As Evidence Information and statements made at conciliation proceedings shall be treated as privileged communication and shall not be used as evidence in the Commission. Conciliators and similar officials may not testify in any court or body regarding any matters taken up at conciliation proceedings conducted by them

TITLE IV. LABOR ORGANIZATIONS CHAPTER I. REGISTRATION AND CANCELLATION ART. 234. REQUIREMENTS OF REGISTRATION PRINCIPLE OF AGENCY APPLIED 1. Principal – employees 2. Agent – local/chapter 3. Agent of agent – federation

Purpose of Formation of Labor Unions: for securing a fair and just wages and good working conditions for the laborers; and for the protection of labor against the unjust exactions of capital. MODES OF ACQUIRING LEGITIMACY FOR LABOR ORGANIZATIONS 1. Registration with the BLR (Independent Union) 2. Chartering or issuance of a federation or national union of a charter certificate. As now amended by RA 9481, Art.234 makes specific reference to the following organizations (not merely to any organization) which may register as a labor organization, to wit; 1. Federation 2. National Union 3. Industry Union 4. Trade Union Center 5. Independent Union

Labor Organizations Labor Organization

Definitions Any union or association of employees which exists in whole in part for the purpose of collective bargaining with employers concerning terms and conditions of employment. Any labor organization in the private sector organized for collective bargaining and for other legitimate purposes. Any labor organization as defined above registered with DOLE. Note: Not every legitimate labor organization can act as bargaining representative and be certified as such. This is true ONLY of a union that has won in certification election or has been voluntarily recognized by the employer (See exclusive Bargaining Representative below) Any labor organization operating at the enterprise level whose legal personality is derived through an independent action for registration with the Bureau of Labor Relations (BLR) of the Department of Labor and Employment prescribed under Art. 234. It may be affiliated with a federation, national or industry union, in which case it may also be referred to as an affiliate Legitimate labor union idly recognized or certified as the sale and exclusive bargaining representative or agent of all the employees in a bargaining unit Association of workers organized for the mutual aid and protection of its members or for any legitimate purpose other than for collective bargaining. Association of workers organized for mutual aid and protection of its members of for any legitimate purpose other than collective bargaining registered with the Department in accordance with Rule III, Sections 2-C and 2-D of these rules.

Union

Legitimate Labor Organization or Labor Union

Independent Union

Exclusive Bargaining Representative

Worker’s Association

Legitimate Worker’s Association

Classification of Labor Organizations 1. National Union/Federation – any labor organization with at least 10 locals/chapters each of which must be a duly certified or recognized collective bargaining agent. 2. Industry Union – a group of legitimate labor organizations within an identified industry, organized for collective bargaining or for dealing with employers concerning terms and conditions of employment within an industry or for participating in the formulation of social and employment policies, standards, and programs in such industry registered with DOLE. 3. Trade Union Center – group of registered national unions or federations organized for the mutual aid and protection of its members and for assisting such members in collective bargaining or for participating in the formulation of social and employment policies, standards, and programs duly registered with the Department. 4. Alliance – aggregation unions existing in one line of industry or in a conglomerate, group o franchisees, a geographical area, or an industrial center. 5. Company union – a labor organization which, in whole or in part, is employer-controlled or employer-dominated. Requirements for the Issuance of the Certificate of Registration of a National Federation, National Union or Industry or Trade Union Center or an Independent Union (As Amended by R.A. 9481, June 15, 2007) 1. P50 registration fee; 2. Names of its officers, their addresses, the principal address of the labor organization, the minutes of the organizational meetings and the list of the workers who participated in such meetings. 3. In case the applicant is an independent union, the names of all its members comprising at least 20% of all the employees in the bargaining unit where it seeks to operate (see Art. 255 for definition of bargaining unit) 4. If the applicant union has been in existence for one or more years, copies of its annual financial reports; and 5. 4 copies of the constitution and by-laws of the applicant union, minutes of its adoption or ratification, and the list of the members who participated in it. Note: Creation of a LOCL CHAPTER does not need subscription of at least 20% of the members. Minimum number of members applicable only o registration of independent union. The Labor Code and its implementing rules do not require that the number of members appearing on the documents in question should completely dovetail. For as long as the documents and signatures are shown to be genuine and regular and the constitution and by-laws democratically ratified, the union is deemed to have complied with registration vs. Pinag-isang galling ang lakas ng mga manggagawa sa Heritage Manila (Piglas-Heriage), GR No. 177024, October 30, 2009)

ART 234-A: CHARTERING AND CREATION OF A LOCAL CHAPTER (new provision inserted by RA 9481) A duly registered federation or national union may directly create a local chapter BY ISSUING A CHARTER CERTIFICATE indicating the establishment of the local chapter. The chapter shall acquire legal personality ONLY for purposes of filing a petition for certification election from date it was issued a charter certificate. Note: The chapter shall be entitled to all other rights and privileges of a legitimate labor organization only upon the submission of the following documents in addition to its charter certificate. 1. Names of the chapter’s officers, their addresses and the principal office of the chapter; 2. Chapter’s constitution and by-laws; 3. PROVIDED, that where the chapter’s constitution and by law are the same as that of the federation or the national union, this fact shall be indicated accordingly. The additional requirements shall be certified under oath by the secretary or treasurer of the chapter and attested by the president.

Where to File Application for Registration 1. For the registration of independent labor unions chartered local worker’s associations shall be filled with the Regional Office where the applicant principally operates. It shall be processed by the Labor Relations Division at the Regional Office. 2. Applications for the registration of federations, national unions or workers associations operating in more than one region shall be filled with the bureau or the regional offices, but shall be processed by the Bureau. Note: A labor organization may be organized under the Corporation Law as a non-stock corporation and issued a certificate of incorporation by the SEC. But such incorporation has only the effect of giving to it juridical personality before regular courts of justice. Such incorporation does not grant the right and privileges of a legitimate labor organization. MINISTERIAL DUTY OF THE BLR COMPELLABLE BY MANDAMUS To review the application for registration and not the issuance of a Certificate of Registration. After a labor organization had filed the necessary papers and documents for registration, it becomes mandatory for the BLR to check if the requirements under Article 234 have been sedulously complied with. If its application for registration is vitiated by falsification and serious irregularities, especially those appearing on the face of the application and the supporting documents, a labor organization should be denied recognition as a legitimate labor organization. (Progressive Development CorporationPizza Hut vs. Laguesma et al., GR No. 115077, April 18, 1997)

PURPOSE OF REGISTRATION Registration with the BLR is the operative act that gives rights to a labor organization.

1. It is the fact of being registered with the DOLE that makes a labor organization legitimate in the sense that it is clothed with legal personality to claim representational and bargaining rights enumerated in Article 242 or to strike or picket under Article 263. 2. The requirement of registration is NOT a curtailment of the right to association. It is merely a condition sine qua non for the acquisition of legal personality by labor organizations, associations or unions and the possession of the rights and privileges granted by law to labor organizations. 3. A valid exercise of police power since the activities in which labor organizations, associations, or unions of workers are engaged affect public interest, which should be protected. (PAFLU vs. Sec. Of Labor)

FEDERATION- any labor organization with at least 10 locals/chapters or affiliates each of which must be duly certified or recognized as the sole and exclusive collective bargaining agent of the employer they represent. REQUIREMENTS BEFORE A FEDERATION CAN BE ISSUED A CERTIFICATE OF REGISTRATION: Aside from the application, which must be accompanied with the requirements for registration of a labor registration, the application should also be accompanied by the following: 1. Proof of affiliation of at least 10 locals or chapters, each of which must be a duly recognized sole and exclusive collective bargaining agent in the establishment or industry in which it operates, supporting the registration of such applicant federation or national union; 2. Resolution of affiliation of at least ten legitimate labor organization, whether independent unions or chartered locals each of which must be duly certified or a recognized bargaining agent in the establishment where it seeks to operate; and 3. Names and addresses of the companies where the locals or chapters operate and the list of all the members in each company involved.

Unions at Enterprise Level A labor union at enterprise level may be created either by: 1. Independent registration 2. Chartering

How

Independent Registration Obtained by union organizers in an enterprise through their own action

Result Legal Personality

Independent Union With Personality

Where Filed

Application for registration is filed with and will be acted upon by the DOLE regional office where the applicant’s principal office is located.

Chartering A duly registered federation/national union issues a charter to a union in an enterprise and registers the charter with the regional office or the BIR. Chapter/Local No legal personality of its own as long as it has not availed itself of independent registration. Charter certificate is issued by a federation or national union is filed with the regional office or BLR with 30 days after the issuance of the charter certificate.

Affiliate 1. An independently registered union that entered into an agreement of affiliation with a federation or national union. 2. Also refers to a chartered local which applied for and was granted an independent registration but did not disaffiliate from its mother federation or national union. Affiliation of Local Union with a Federation The procedure o affiliation would depend on whether the union is independently registered or not. Requirements of Affiliation (As Amended By D.O.40-03) 1. Report of affiliation of independently registered labor union 2. Attachments: a. Resolution of the labor union’s board of directors approving the affiliation; b. Minutes of the general membership meeting approving the affiliation; c. The total number of members comprising the labor union and the names of members who approved the affiliation; d. The certificate of affiliation issued by the federation in favor of the independently registered labor union; and e. Written notice to the employer concerned if the affiliating union is the incumbent bargaining agent. Note: Supervisor’s union and the rank and file union operating within the same establishment may join the same federation or national union. (Art. 245 amended by RA No. 9481)

Disaffiliation When affiliated, a local union may disaffiliate from the federation. When to Disaffiliate General Rule: A labor union may disaffiliate from the mother union to form an independent union only during the 60-day freedom period immediately preceding the expiration of the CBA. EXCEPTION: DISAFFILIATION BY MAJORITY Even before the onset of the freedom period, disaffiliation may still be carried out, but such disaffiliation must be effected by a majority of the union members in the bargaining unit. This happens when there is a substantial shift in allegiance on the part of the majority of the members of the union. In such a case, however, the CBA continues to bind the members of the new or disaffiliated and independent union up to the CBA’s expiration date. A consent election to determine the union which shall administer the CBA maybe conducted.

LIMITATION Disaffiliation should be in accordance with the rules and procedures stated in the Constitution and bylaws of the federation. A prohibition to disaffiliate in the Federation’s constitution or by-laws is valid—intended for its own protection.

Chartered Local- created by a federation or national union through issuance of a charter. Revocation of Charter by the Federation - by serving the local/chapter a verified notice of revocation, copy furnished the Bureau on the ground of disloyalty or such other grounds as may be specified in its constitution or by-laws. The revocation shall divest the local chapter of its legal personality upon receipt of the notice by the Bureau, unless in the meantime the local chapter has acquired independent registration. (Rule VIII Section 5 of the IRR)

Note: The cancellation of registration of a federation or national union such operate to divest its locals/charters of their status as legitimate labor organization. UNLESS the locals chapters are covered by a duly registered collective bargaining agreement.

In a latter case, the local/chapters shall be allowed to register as independent unions failing which they shall lose their legitimate status upon the EXPIRATION OF THE CBA (Implementing Rules: Book V , Rule VII, Sec. 6)

Art. 235: ACTION ON APPLICATION The bureau shall act on all applications for registration within thirty days of filling All requisite documents and papers shall be under oath by the secretary of the treasure of the organization, as the case maybe, and attested to by its president. Reason for 30-day period: The thirty-day period in the Art.235 ensures that any action taken by the Bureau of Labor Relations is made in consonance with the mandate of the Labor Code, which, it bears emphasis, specifically requires that the basis for the issuance of a certificate of registration should be compliance with the requirements for recognition under Article 234. Reason for requiring certification under oath: To ensure that the labor organization with which an employer is dealing is a bonafide organization. Mandamus, not Certiorari, is proper remedy. The proper remedy against refusal to register a labor organization which complies with all the requirements is mandamus and not certiorari. Certiorari is not the proper remedy since the approval of the application for the registration is not judicial function. ART. 236. DENIAL OF REGISTRATION Decision Decision of the regional office or the bureau denying the application for registration shall be: 1. In writing: 2. Stating in clear terms the reason for the decision 3. applicant union must be furnished a copy of said decision Appeal Decisions of Regional Office shall be appealable to the BLR and CA. The BLR’s decisions on cases appealed from Regional Director are final and not appealable to the Secretary of Labor. Decisions of the BLR denying the registration of a labor organization is appealable to the Secretary of Labor within 10 calendar days from receipt of the decision, on grounds of: 1. grave abuse of discretion; or 2. gross incompetence Decision of Secretary of Labor appealable to Court of Appeals

Registration of Independent Labor Union Filled With Bureau of Labor Relations or Regional Office (But processed by Bureau)

Secretary of Labor (If BLR director denies)

Decision of Secretary appealable to COURT OF APPEALS

Registration of Federation or National Union Filed With

Regional office where union operates (Processed by Labor Relations Division)

Bureau of Labor Relations (If denied by Regional Director)

Decision of BLR appealable to COURT OF APPEALS

INDEPENDENTLY REGISTERED

UNREGISTERED

HOW TO AFFILIATE

By signing affiliation

a

contract

of

By application of the union with the federation for the issuance of a charter certificate to be submitted to the Bureau accompanied by the following: 1. Copies of its constitution and by-laws 2. Statement of the set of officers and books of accounts, all of which must be certified by the Secretary/Treasurer and attested to by the President. In such case, the union becomes a local chapter of the Federation.

EFFECT OF DISAFFILIATION TO THE UNION [local]

Would not affect its being a legitimate labor organization and therefore it would continue to have legal personality and to possess all the rights and privileges of a legitimate labor organization.

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

EFFECT OF DISAFFILIATION TO THE CBA

An existing CBA would continue to be valid as the labor organization can continue administering the CBA

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

ENTITLEMENT TO UNION DUES AFTER DISAFFILIATION

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

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

Modes of Appeal Denial or Cancellation by: 1. Transmit records with 24 hours from receipt of Memo of Appeal. 2. BUREAU decides within 20 days from receipt of records. 3. COURT OF APPEALS-Rule 65 Bureau 1. Transmit records within 24 hours from receipt of Memo of Appeal 2. SEC. OF DOLE decides within 20 days from receipt of records 3. COURT OF APPEALS- Rule 65 Note: Appeal by memo of appeal within 10 days from receipt of notice.

Grounds 1. Grave abuse of discretion 2. Violation of rules as amended ART. 238 CANCELLATION OF REGISTRATION The certificate of registration of any legitimate labor organization, whether national or local may be cancelled by the Bureau after due hearing ONLY ON THE GROUNDS SPECIFIED IN ARTICLE 239. (as amended by RA 9481) ART. 238-A: EFFECT OF A PETITION FOR CANCELLATION OF REGISTRATION (new provision inserted by RA 9481) 1. A petition for cancellation of union registration shall not suspend the proceedings for certification election, nor shall it prevent the filing of a petition for certification (DO 40-03) 2. In case if cancellation, nothing herein shall restrict the right of the union to seek just and equitable remedies in the appropriate courts. FOR 1. Legitimate individual labor union. 2. Chartered Local 3. Worker’s Association WHRE TO FILE Regional Director who has jurisdiction over the place where respondent principally operates (30 days to decide). WHO MAY FILE Any party in interest, if ground is: a. Failure to comply with any of the requirements under Arts. 234, 237 and 238 LC b. Violation of any provision under Art. 239, LC Take note of the cancellation proceedings if violation is D and J of Art. 239, LC Only the members of the Labor Organization concerned if grounds are actions involving violations of Art. 241, subject to the 39% rule

1. Federations 2. National or Industry unions 3. Trade union centers

Bureau Director ( 30 days to decide

Effects of Cancellation of Registration in the Course of Proceedings Where a labor union is a party in proceeding and later it loses its registration permit in the course or during the pendency of the case, such union may continue as a party without need of substitution of parties, subject however to the understanding that whatever decision may be rendered therein will be

binding only upon those members of the union who have not signified their desire to withdraw from the case before its trial and decision on the merits. ART 239. GROUNDS FOR CANCELLATION OF UNION REGISTRATION Grounds: 1. Misrepresentation, False statement or Fraud in connection with ratification of the constitution and by-laws 2. Amendments thereto, the minutes of ratification and the list of members who took part in the ratification; 3. Misrepresentation, false statements or fraud in connection with the election of officers, minutes of the election of officers and the list of voters; and 4. Voluntary dissolution by the members. Note: Failure to submit reportorial requirements is no longer a ground for cancellation but shall subject the erring officers or members to suspension, expulsion from membership, or any appropriate penalty. (Art. 242-A, new provision inserted by RA 9481)

ART.239-A: VOLUNTARYY CANCELLATION OF REGISTRATION (New Provision inserted by RA 9481) The registration of a legitimate labor organization may be cancelled by the organization itself PROVIDED: 1. At least 2/3 of its general membership votes, in a meeting duly called for that purpose to dissolve the organization. 2. An application to cancel registration is submitted by the board of the organization, attested to by the president thereof. Note: A pronouncement as to the illegality of the strike is not within the meaning of Art. 239 of the Code, which provides for the grounds for cancellation of union registration.

CHAPTER II. RIGHTS AND CONDITIONS OF MEMBERSHIP ART 241: RIGHTS AND CONDITIONS OF MEMBERSHIP IN A LABOR ORGANIZATION

General Groupings of the Rights of the Union Members (DIMP) 1. Deliberative and Decision-Making Right - the right to participate in deliberations on major policy questions and decide them by secret ballot. 2. Right to Information - the right to be informed about: a. the organization’s constitution and by- laws, b. the collective bargaining agreement, and labor laws. 3. Rights Over Money Matters - the right of the members: a. against imposition of excessive fees; b. right against unauthorized collection of contributions or unauthorized disbursements; c. to require adequate records of income and expenses; d. to access financial records; e. to vote on officers compensation;

f. to vote on special assessment; g. to be deducted a special assessment only with the member’s written authorization. 4. Political right - the right to vote and be voted for, subject to lawful provisions on qualifications and disqualifications. Note: Any violation of the above rights and conditions of membership shall be a ground for cancellation of union registration or expulsion of an officer from office, whichever is appropriate. At least 30% of all the members of the union or any member or members specifically concerned may report such violation to the Bureau. Union Membership Any employee, whether employed for a definite period or not, shall, beginning in his first day of service, be considered an employee for purposes of union membership. (Art.277) Note: The relationship of the union and members is governed by their mutual agreement, the terms and conditions of which are forth in the union constitution and by- laws binding on the members as well as the organization itself. Who are prohibited from Becoming Members/Officers of a Labor Organization (See notes under Art.243 on persons who are not granted the right to self organization) 1. Non-employees (art.241) 2. Subversives or those engaged in subversive activities (Art. 241); and 3. Persons who have been convicted of a crime involving moral turpitude shall not be eligible for election as union officer or for appointment to any position in the union. (Art 241) Note: In general, a union is free to select its own members, and no person has an absolute right to membership in a union. Who are entitled to vote: Only members of the union have the eligibility to take part in the election of union officers. Eligibility to vote may be determined through the use of applicable payroll period and the status of the applicable payroll period and the status of the employees during the applicable period. This pertains to the payroll of the month next preceding the labor dispute, in case of regular employees, and the payroll period at or near the peak of operation, in case of employees in seasonal industries. (Tancino vs Pura Ferrer-Calleja GR No. 78131, January 20, 1988) Limitations (see discussion on union security arrangements under Art. 248): 1. The labor org. cannot compel employees to become members of their labor organization if they are already member of rival union. 2. Persons mentioned in Art. 241(e) (subversives) of the labor code are prohibited from becoming a member a labor organization.

3. Members of religious organization whose religion forbade membership in labor organization could not be compelled into union membership. Levy of Special Assessments or Extraordinary Fees (Art. 241(N)) Requirements: (RAMM) 1. 2. 3. 4. There must be written resolution The resolution must have been approved by the majority of all members; and The approval must be at a general Membership meeting duly called for that purpose. The secretary of the organization shall record the minutes of the meeting, which shall be attested to by the President, the Minutes include: a. The list of all members present b. The votes cast; and c. The purpose of the assessment or fees.

Substantial Compliance with the aforementioned procedure is not enough- the requirements must be strict complied with. (Palacol et al. v. Ferrer-Calleja, et. Al, GR No. 85333, February 26, 1990) CHECK-OFF - a method of deducting from an employee’s pay at prescribed period, the amounts due to the union for fees, fines or assessments. NATURE AND PURPOSE OF CHECK-OFF: Union dues are the lifeblood of the union. All unions are authorized to collect reasonable membership fees, union dues, assessments and fines and other contributions for labor education and research, mutual death and hospitalization benefits, welfare fund, strike fund and credit and cooperative undertakings (Art. 277(a)) REQUIREMENTS WITH REGARD TO CHECK-OFFS (Art. 241 [o]): General Rule: NO special assessment, attorney’s fees, registration fees or any other extraordinary fees may be checked off from any amount due an employee WITHOUT an individual written authorization duly signed by the employee. The authorization should specifically state the: a. Amount; and b. Purpose and the beneficiary of the deduction. Exceptions: 1. For mandatory activities provided under the Code; and 2. When non-members of the union avail of the benefits of the CBA. a. Said non-members may be assessed union dues equivalent to that paid by members b. only by a Board Resolution approved by majority of the members in a general meeting called for the purpose

Note: The individual written authorization duly signed by the employee is an additional requirement in order that a special assessment may be validly checked-off. In case of check-off another requisite is necessary in addition to the requirements for special assessment, enumerated above and this is, individual written authorization for check-off dully signed by the employee concerned. (Eduardo J. Marino, Jr.et al. vs. Gil Y. Gamilla, et al. GR. No. 149763, July 7, 2009) Jurisdiction over Check-Off Disputes Being an intra-union conflict, the Regional Director of DOLE has jurisdiction over check off disputes.

How Approved

Special Assessment By written resolution approved by majority of all the members at a meeting duly called for that purpose

Exception to such requirement

No exception—written resolution is mandatory at all instances

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

Union Dues – regular, monthly contributions paid by the members to the union in exchange for the benefits given to them by the CBA and to finance the activities of the union in representing them. Agency Fees- dues equivalent to union dues, charged from the non-union members who or benefited by or under the CBA. Requisites (PNB) 1. The employee is part of the bargaining unit;

2. He is not a member of the union; and 3. He partook of the benefits of the CBA. Note: Individual written authorization is not necessary for the collection of agency fees. Agency Fee Deducted From Members of a union for the payment of union Non-members of the bargaining agent (union) for dues the enjoyment of the benefits under the CBA. Consent May not be deducted from the salaries of the May be deducted from the salary of employees union members without the written consent of the without their written consent. workers affected Union Dues

Note: Agency fee cannot be imposed on employees already in the service and are members of another union. If a closed shop agreement cannot be applied to them, neither may an agency fee, as a lesser form of union security, be imposed to them. Payment by non-union members of agency fees does not amount to an unjust enrichment basically because the purpose of such dues is to avoid discrimination between union and non-union members (NABAILU v. San Miguel Brewery Inc. GR No. 18170, August 31, 1963) Employee Members of another Union NOT Considered Free Riders When the union bids to be the bargaining agent, it voluntarily assumes the responsibility of representing all employees in the appropriate bargaining unit. CHAPTER III RIGHTS OF LEGITIMATE LABOR ORGANIZATIONS ART. 242. RIGHTS OF LEGITIMATE LABOR ORGANIZATIONS RIGHTS OF A LEGITIMATE LABOR ORGANIZATION (USERFOE): 1. Undertake activities for benefit of members 2. Sue and be sued 3. Exclusive representative of all employees 4. Represent union members 5. Furnished by employers of audited financial statements 6. Own properties 7. Exempted from taxes ART. 242-A: REPORTORIAL REQUIREMENTS (New Provision inserted by RA 9481) Reportorial requirements to be submitted by the legitimate labor organization:

1. Constitution and by-laws or amendments thereto, minutes of ratification, and the list of members who took part in the ratification of constitution and by-laws within 30 days from adoption or ratification of the constitution and by-laws or amendments thereto. 2. List of officers, minutes of the election of officers, and list of voters within 30 days from election; 3. Annual financial report within 30 days after the close of every fiscal year; and 4. List of members at least once a year or whenever required by the Bureau. Note: Failure to comply with the above mentioned requirements shall not be a ground for cancellation of union registration but shall subject the erring officers or members to suspension, expulsion from membership, or any appropriate penalty. (As inserted by Sec. 7, RA 9481) TITLE FIVE. COVERAGE ART.243: COVERAGE AND EMPLOYEES’ RIGHT TO SELF-ORGANIZATION Extent of the Right to Self- Organization 1. To form, join and assist labor organizations for the purpose of collective bargaining through representatives of their own choosing; and 2. To engage in lawful concerted activities for the same purpose- for their mutual aid and protection. Right to Organize cannot be Bargained Away The right to self organization must be upheld in the absence of express provision of law to the contrary. It cannot be curtailed by a CBA (SPFL v. Calleja GR No. 80982, April 24, 1989) Right to join starts from first day of Employment Any employee whether employed for a definite period or not shall beginning on the first of his/her service be eligible for membership in any labor organization. PERSONS/EMPLOYEES ELIGIBLE TO JOIN A LABOR ORGANIZATION FOR PURPOSES OF COLLECTIVE BARGAINING: 1. All persons employed in commercial, industrial and agricultural (CIA) enterprises, including employees of Government-owned or controlled corporation without original charters established under the Corporation Code; and 2. In religious, charitable, medical or educational (RCME) institutions whether operating for profit or not. PERSONS/EMPLOYEES ELIGIBLE TO JOIN A LABOR ORGANIZATION FOR MUTUAL AID AND PROTECTION (AIRSIW): 1. Ambulant; (Walking or Mobile Workers) 2. Intermittent; (Irregular Workers) 3. Rural, 4. Self-employed people 5. Itinerant workers (Working for a short tome in various places);and 6. Workers without any definite employers.

PERSONS/EMPLOYEES WHO ARE NOT GRANTED THE RIGHT TO SELF- ORGANIZATION: (HEMACENGA) 1. High-level or managerial government employees (Sec. 3; EO 180) 2. Employees of international organizations with immunities (ICMC v. Calleja GR No. 85750, September 28, 1990); 3. Managerial employees a. Whose functions are normally considered as policy-making or managerial; b. Whose duties are of a highly confidential or highly technical in nature (Art.212, LC); 4. Members of armed Forces of the Philippines, including police officers, policemen, firemen and jail guards (Sec. 4, EO 180); 5. Confidential employees (Metrolab Industries Inc. v. Confesor, GR No. 108855, February 28, 1996); 6. Employees of cooperatives who are at the same time its members (Benguet Elec. Coop. v. FerrerCelleja, GR No. 7902, December 29,1989); However, they may form a worker;s association (NEECO Employees’ Assoc. v. NLRC, GR No. 116066, January 24, 2000). 7. Non- Employees (Rosario Bros v. Ople, GR No. L-53590, July 31, 1984) 8. Government Employees, including Government-owned and controlled corporations with original charter (Arizala v. CA 189 SCRA 584) 9. Aliens without valid working permits; or Aliens with valid working permits but are nationals of a country which do not grant Filipinos to exercise the right of self- organization and to join or assist labor organizations. (Article 269, Labor Code; Department Order No. 9 (1997). Rule II Sec.2) Eligibility of Foreigners to Form Labor Organization Aliens working in the country with valid permits issued by DOLE may exercise the right to selforganization and join or assist labor organizations of their own choosing for purposes of collective bargaining; provided that said aliens are nationals of a country which grants the same or similar rights to Filipino workers. (Art.269). This embodies the PRINCIPLE OF RECIPROCITY. Religious Objectors The rights of the members of the Iglesia ni Kristo sect not to join a labor union for being contrary to their religious beliefs does not bar members of that sect from forming their own union. The recognition of the tenets of that sect should not infringe on the basic right to self organization granted by Constitution to workers regardless of religious affiliation. (Kapatiran v. Calleja, GR No. 82914, June 20, 1988) In fact, they can vote for “No-Union” in a certification election. In the exercise of their right to selforganization. (Reyes v. Trajano, GR No. 84433, June 2, 1992)

ART. 244: RIGHTS OF EMPLOYEES IN THE PUBLIC SERVICE GOCC WITHOUT ORIGINAL CHARTER Right to Strike Employees cannot stage strikes since they are The GOCC is created under Corporation Code, governed by the Civil Service Law. They are and then employees are covered by the Labor enjoined by Civil Service Memorandum Circular Code. Therefore No. 6, under pain of administrative sanctions the employees have the same rights as those as from staging strikes, demonstrations, mass employees of private corporations, one of leaves, walkouts and other concerted activities. which is the right to strike. Bargaining Rights Corporations with original charters cannot The GOCC is created under Corporation Code, bargain with the government concerning the Being governed by the Labor Code, they can terms and conditions of their employment. bargain with the government concerning the However, they can negotiate with the terms and conditions of their employment. Thus, government on those terms and conditions of they have unlimited bargaining rights. employment which are not fixed by law. Thus, they have limited bargaining rights. Purpose of Organization Can only form, join or assist labor organization Can form, join or assist labor organization for for purposes not contrary to law. purposes of CBA, etc. GOCC WITH ORIGINAL CHARTER

Forming Joining or Assisting Employee’s Organization General Rule: All government employees can form, join or assist employees’ organization of their own choosing for the furtherance and protection of their interests. They can also form labormanagement committees, work councils and other forms of workers; participation schemes to achieve the same objectives. (Sec. 1, EO 180) Exceptions: 1. High-level employees whose functions are normally considered as policy making or managerial or whose duties are of a highly confidential nature (Sec. 3, EO 180); and 2. Members of the Armed Forces of the Philippines including police officers, policemen, firemen and jail guards (Sec. 4, EO 180) Note: Employees of government corporations incorporated under the Corporation Code and registered with SEC are governed by the Labor Code not by EO 180. They are allowed to organize for: 1. They are not involved in public service; and 2. Terms of employment are not fixed by law.

Protection of Right to Organize 1. Government shall not be discriminated against by reason of their membership in employees’ organizations or participation in the normal activities of their organization. (Sec. 5 EO 180) 2. Their employment shall not be subject to the condition that they shall not join or shall relinquish their membership in the employees’ organization (Ibid). 3. 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 (Sec. 6, EO 180). Terms and Conditions of Employment in Government Service General Rule: The terms and conditions of employment or improvements in government service may be the subject of negotiations between duly recognized employees’ organizations and appropriate government authorities. (Sec. 13, EO 180). Exception: Those terms and conditions of employment that are fixed by law (Ibid). Negotiable Terms and Conditions of Employment in GOCCS with Original Charter 1. 2. 3. 4. 5. 6. 7. 8. 9. schedule of vacation and other leaves work assignment of pregnant women personnel growth and development communication system – lateral and vertical provision for protection and safely provision for facilities for handicapped personnel provision for first-aid medical services for married women annual medical/physical examination recreational, social, athletic and cultural activities and facilities (Rules implementing WO 180)

The following are considered NOT Negotiable 1. Those which require appropriation of funds, such as: a. increase in salary emoluments and other allowance not presently provided for by law b. facilities requiring capital outlays c. car plan d. provident fund e. special hospitalization, medical and dental services f. rice/sugar/other subsidies g. travel expenses h. increase in retirement benefits 2. Those that involve the exercise of management prerogatives, such as: a. Appointments b. Promotion c. assignments/details

d. reclassification/upgrading of position e. revision of compensation structure f. penalties imposed as a result of disciplinary actions g. selection of personnel to attend seminar, trainings, study grants h. external communication linkages; and i. distribution of work load To sum up, government employees covered by E.O No. 180 may organize, even unionize, and negotiate employment conditions not fixed by law but they cannot strike. (Azucena, 2007) Registration of Employees Organization Where to Register Government employees’ organizations shall register with the Civil Service Commission and Dole. The application shall be filed with the Bureau of Labor Relations which shall process the same in accordance with the provisions of LC. Applications may also be filed with the Regional Offices of DOLE, which shall immediately transmit the said applications to the Bureau of Labor Relations within three (3) days from receipt thereof (Sec 7, E.O. 180) Issuance of Registration Certificate Upon approval of the application, a registration certificate shall be issued to the organization recognizing with the right to represent its members and undertake activities to further and defend its interest. The certificate of registration shall be jointly approved by the chairman of the Civil Service Commission and Secretary of Labor (Sec 8, E.O 180) Voluntary Recognition A duly registered employees’ organization shall be accorded voluntary recognition: 1. Upon a showing that no other employees’ organization is registered or is seeking registration, based on records of the Bureau of Labor Relations; and 2. The said organization has the majority support of the rank-and-file employees in the organizational unit (Sec. 11, E.O. 180) Certification Election Where there are two or more duly registered employees’ organizations in the appropriate organizational unit, the BLR, upon petition, shall: 1. Order the conduct of a certification election; and

2. Certify the winner as the exclusive representative of the rank-and-file employees in said organization unit Jurisdiction Any dispute which remains unresolved after exhausting all available remedies under existing laws and procedures may be jointly referred by the parties to the Public Sector Labor-Management Council for appropriate action. Likewise, the PSLMC has jurisdiction to hear charges of ULP filed by government employees against their employer. It is composed of the following: 1. Chairman – Civil Service Commissioner 2. Vice Chairman- Secretary of Labor; and 3. Members: a. Secretary of Finance b. Secretary of Justice c. Secretary of Budget Art. 245: INELIGIBILITY OF MANAGERIAL EMPLOYEES TO JOIN ANY LABOR ORGAIZATION; RIGHT OF SUPERVISORY EMPLOYEES 1. Managerial Employees – those who are vested with powers or prerogatives to lay down and execute management policies and/or to hire, transfer, suspend, lay-off, discharge, assign or discipline employees. Managerial employees under labor standards Managerial Employees under labor relations Powers/Duties Primary duty consist of the management of the Lay down and execute management policies establishment in which they are employed or of and/or to hire, transfer, suspend, lay-off, recall, a department or subdivision discharge, assign, or discipline employees Extent Includes the officers and members of the Does not include the managerial staff since they managerial staff are classified as supervisory employees Purpose of Definition To determine whether or not certain employees To determine an employee’s ability in are covered by Book III of the LC on Conditions of joining/forming labor unions Employment

Reason for Ineligibility Managerial employees are the alter ego of the employers and thus they are supposed to be on the side of the employer to act as its representatives, and to see to it that its interests are well protected. The employer is not assured of such protection if these employees are union members.

In the same manner, the labor union might not be assured of their loyalty to the union in view of the evident conflict of interest. The union can also become company-dominated with the presence of managerial employees in union membership. Note: Art. 245 does not absolutely disqualify managerial employees from exercising their right of association. What it prohibits is merely the right to join labor organizations. 2. Supervisory Employees – those who in the interest of the employer, effectively exercise of such but requires the use of independent judgment. Supervisory Employees may form assist, join a labor organization on their own and not with the rank-and-file employees. If their responsibilities do not inherently require the exercise of discretion and independent judgment, (or merely routinary/clerical in nature ) then they may join the union composed of the rank-and-file employees. Note: It is the nature of the employees functions and not the nomenclature or title given to his job which determines whether he has a rank and file or managerial status. The rank and file union and the supervisors’ union operating within the same establishment may join the same federation or national union. Separation of Unions Doctrine However, a supervisors union and a rank-and-file union in the same company cannot affiliate with the same federation if the following concur. a. The rank-and-file employees are directly under the authority of supervisory employees; and b. The national federation is actively involved in union activities in the company 3. Confidential Employees – is one entrusted with confidence on delicate matters, or with the custody, handling, or care and protection of the employer’s property. By the very nature of their function, they (1) assist and act in a confidential capacity, (2) to persons who formulate, determine, and effectuate management policies 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 – e.g., the confidential relationship must exist between the employee and his SUPERVISOR, and the supervisor must handle the prescribed responsibilities relating to labor relations. As such, the rationale behind the ineligibility of managerial employees to form, assist or join a labor union equally applies to them.

Note: The phrase “IN THE FIELD OF LABOR RELATIONS” is important. It stresses labor nexus, i.e. confidentiality of the position is related or linked to labor relations matters.  Access to information which is regarded by the employer to be confidential from the business standpoint, such as financial information or technical trade secrets, WILL NOT renders an employee a confidential employee.  Every managerial position is confidential because one does not become a manager without having gained the confidence of the appointing authority. But not every confidential employee is managerial, he may be a supervisory or even a rank-and-file employee. ART. 245-A: EFFECT OF INCLUSION AS MEMBERS OF EMPLOYEES OUTSIDE THE BARGAINING UNIT (new provision inserted by R.A. 9481) The inclusion as union members of employees outside the bargaining unit shall NOT be a ground for cancellation of the registration of the union. Said employees are automatically deemed removed from the list of membership of said Union. Reason: After a certificate of registration is issued to a union, its legal personality cannot be subject to collateral attack. It may be questioned only via a petition for cancellation, under the grounds provided for in Art. 239. Art. 246: NON-ABRIDGEMENT OF THE RIGHT TO SELF ORGANIZATION It shall be unlawful for any person to: 1. 2. 3. 4. Restrain Coerce Discriminate against;or Unduly Interfere with employees and workers in their exercise of the right to self-organization Note: Any act intended to weaken or defeat the right is regarded by law as an offense, which is technically called “UNFAIR LABOR PRACTICE” TITLE SIX. UNFAIR LABOR PRACTICES CHAPTER I. CONCEPT Art. 247: UNFAIR LABOR PRACTICE Unfair Labor Practice 1. Any unfair labor practice as expressly defined by the Code. 2. Any act intended or directed to weaken or defeat the worker’s right to self-organize or to engage in lawful concerted activities.

Nature of Unfair Labor Practices: 1. 2. 3. 4. Criminal offenses against the State; Violations of civil rights of both labor and management; Violate the constitutional right of workers and employees to self-organization; Are inimical to the legitimate interests of both labor and management, including their right to bargain collectively and otherwise deal with each other in an atmosphere of freedom and mutual respect; 5. Disrupt industrial peace; and 6. Hinder the promotion of healthy and stable labor-management relations and mutual respect (unstable labor-management relations) . Elements of Unfair Labor Practice 1. Employer-employee relationship between the offender and the offended; and 2. Act done is expressly defined in the code as an act of unfair labor practice. Note: Prohibited acts are all related to the workers’ self-organizational right and the observance of a CBA , except Art. 248(f) dismissing or prejudicing an employee for giving testimony under the code.         1st element of ULP does not apply to yellow dog condition ULP has a technical meaning It is a practice unfair to labor, although the offender may either be an employer or a labor organization . It refers to acts opposed to worker’ right to organize. Without this, the act, no matter how unfair, is not ULP. It commonly connotes anti-unionism. It also refers to gross violation of CBA provisions. Gross means the act is malicious and flagrant. ULP cases are not, in view of the public interest involved, subject to compromise. However in the case of Reformist Union of R.B. Liner Inc. vs. NLRC the supreme court approved a compromise agreement finally settling an illegal strike case. It said that unfair labor practice acts are beyond and outside the sphere or compromises, the agreement therein was voluntarily entered into and represents a reasonable settlement, thus it binds the parties.

Aspects of Unfair Labor Practice Civil Case Persons Liable 1. Officers and agents of employer; or 2. Labor organization, officers and agents. 1. Agents and officers who participated or authorized or ratified the act; and 2. Agents, representatives, members of Criminal Case

the government board, including ordinary member. (Art. 289 & Art. 249) Jurisdiction Labor Arbiters of the NLRC MTC/RTC, as the case may be (Art. 288) Quantum of Proof Needed Substantial evidence beyond reasonable doubt (subject to prosecution and punishment) Perspective Period one year from the accrual of the ULP act (Art.290)  One year from the accrual of the ULP (Act. 290), however, it will be suspended once the administrative case has been filed and would only continue running once the administrative case has attained finality. Final judgment in the administrative proceeding finding that ULP has been committed is a prerequisite in filing a criminal case for ULP.

Note: Final judgment in the administrative proceedings shall not be binding in the criminal case nor shall be considered as an evidence of guilt but merely as a proof of compliance of the requirements prescribed by the Code.

Chapter II. UNFAIR LABOR PRACTICES OF EMPLOYERS ART. 248: ULP THAT NAY BE COMMITTED BY AN EMPLOYER 1. Interference To interfere with, restrain or coerce employees in the exercise of their right to sselforganization. Test: Whether the employer has engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of the employees’ right and it is not necessary that there be direct evidence that any employee was in fact intimidated or coerced by the statements of threats or the employer if there is a reasonable interference that the anti-union conduct of the employer does have an adverse effect of self-organization and collective bargaining. (The Insular Life Assurance-NATU v. The Insular Life Assurance Co., Ltd, No. L-25291, January 30, 1971)

Totality of Conduct Doctrine The culpability of employer’s remarks is to be evaluated not only on the basis of their implications, but against the background of and in conjunction with collateral circumstances. (Ibid.) Examples: a. Outright and unconcealed intimidation b. In order that interrogation would not be deemed coercive: i. The employer must communicate to the employee the purpose of questioning ii. Assure him that no reprisal would take place iii. Obtain employee participation voluntarily c. Must be free from employer hostility to union organization d. Must not be coercive in nature e. Intimidating expressions of opinion be employer. Note: An employer who interfered with the right to self-organization before a union is registered can be held guilty of ULP (Samahan ng Manggagawa sa Bandolino-LMLC v NLRc GR. No. 125195 July 17, 1997). It is the prerogative of the company to promote, transfer, or even demote its employees to other positions when the interests of the company reasonably demand it. Unless there are circumstances which directly point to interference by the company with the employees’ right to self-organization, the transfer of an employee should be considered as within the bounds allowed by law (e.g. despite transfer to a lower position, his original rank and salary remained undiminished) (Rubberworld Phils., v. NLRC, GR No.75704, July 19, 1989). 2. Yellow Dog Condition To require as a condition for employment that a person or an employee shall not join a labor organization or shall withdraw from one to which he belongs. Yellow Dog Contract- a promise exacted from workers as a condition of employment that they are not to belong to, or attempts to foster, a union during their period of employment. It is null and void because: a. It is contrary to public policy for it is tantamount to involuntary servitude. b. It is entered into without consideration for employees in waiving their right to selforganization. c. Employees are coerced to sign contracts disadvantageous to their family. Note: One of the cases of ULP that may be committed in the absence of an Er-Ee relationship. 3. Contracting Out To contract out services or functions being performed by union members when such will interfere with, restrain or coerce employees in the exercise of their right self-organization.

Does Art 248[c] mean that an employer cannot contract out work? NO. Contracting out services is not ULP per se. It is ULP only when the following conditions exist: 1. The service contracted out are being performed by union members; and 2. Such contracting out interferes with, restrains, or coerce employees in the exercise of their right to self-organization. HOWEVER, when the contracting out is being done for business reasons such as decline in business, inadequacy of equipment or to reduce cost, then it is a valid exercise of management prerogative. Runaway Shop – an industrial plant moved by its owners from one location to another to escape labor regulations or state laws or to discriminate against employees at the old plant because of their union activities. 4. Company-Domination of Union To initiate, dominate, assist or otherwise interfere with the formation or administration of any labor organization, including the giving of financial or other support to it or its organizers or officers. Company Unionism/Captive Unionism Considered as a ULP because the officers will be beholden to the employers and they will not look after the interest of whom they represent. Forms: a. Initiation of the company union idea by: i. Outright formation by employer or his representatives; ii. Employee formation on outright demand or influence by employer; and iii. Managerially motivated formation by employees. b. Financial support to the union by: i. Employer defrays union expenses; ii. Pays attorney’s fees to the attorney who drafted the Constitution or by laws of the union; c. Employer encouragement and assistance – Immediately granting of exclusive recognition as bargaining agent without determining whether the union represents, majority of the employees d. Supervisory Assistance – Soliciting membership permitting union activities during work time or coercing employees to join the union by threats of dismissal or demotion.

5. Discrimination To discriminate in regard to wages hours of work, and other terms and conditions of employment in order to encourage or discourage membership in any labor organization. Test: Whenever benefits of privileges given to one is not giver to the other under similar or identical conditions when directed to encourage or discourage union membership. Three Components of Discrimination: a. It prohibits discrimination in terms and conditions of employment in order to encourage or discourage membership in the union; b. It gives validity to union security agreements; and c. It allows an agency shop arrangement whereby agency fees may be collected from nonunion members.

Discrimination Distinguished from Classification While discrimination is considered an unfair labor practice, classification is not because it merely differentiates the employees in accordance with their respective jobs and accords them the appropriate levels of pay or benefits due them by reason thereof. 6. Discrimination because of Testimony To dismiss, discharge or otherwise prejudice or discriminate against an employee for having given or being about to give testimony under this Code (The only ULP act which is not antiunionism) Subject Matter of Testimony: can be anything under the Code. What is ULP is the employer’s retaliatory act regardless of the subject of employee’s complaint or testimony. In effect, if a retaliatory act is done under Art. 118, the consequence is ULP under Art. 248[f] (Mabeza v. NLRC, GR No. 118506, April 18, 1997). 7. Violation of Duty to Bargain To violate the duty to bargain collectively as prescribed by this Code. The following acts are held to constitute refusal to bargain: a. Alleging that the union is irresponsible; b. Transferring operation to elude union; (Run-Away shop) ; Run-Away Shop – is an unfair labor practice of management which usually takes place by effecting the transfer of ownership, the plant itself, or its equipment, or by temporarily closing its business purposely to bust the union or to evade the payment of legitimate obligations. c. Delaying negotiations by discussing unrelated mattes; d. Refusal to accept requests to bargain;

e. Rejecting a union’s offer to prove its majority claim; f. Shutdown to avoid bargaining; and g. Engaging in surface bargaining. Surface Bargaining – going through the motions of negotiating without any legal intent to reach an agreement. It involves the question of whether or not the employer’s conduct demonstrates an unwillingness to bargain in good faith or is merely hard bargaining (Standard Chartered Bank v. Hon. Confessor, GR No. 114974, June 16, 2004 June 2004). 8. Paid Negotiation To pay negotiation or attorney’s fees to the union or its officers or agents as part of the settlement of any issue in collective bargaining or any other disputes. 9. Violation of CBA The violation must be gross; flagrant and/or malicious refusal to comply with the economic provision of the CBA (Art. 261). Note: “GROSSLY VIOLATE” phrase is an amendment by R.A. 6715. Hence, if the violation is not gross, it is not ULP but a grievance under the CBA. Note: All the aforementioned acts (Nos. 1-9) must have a relation to the employees’ exercise of their right to self-organization. Anti-union or anti-organization motive must be proved because it is a definitional element of ULP. The burden of proof falls on the shoulders of petitioner to establish or substantiate claim of ULP by substantial evidence or such relevant as sufficient to support a conclusion is required. Discrimination For or Against Union Membership Test of Discrimination that the discharge or an employee was motivated by the union activity. Such interference must be based on evidence, direct or circumstantial not upon mere suspicion. Constructive Discharge – ULP where employer prohibits employees from exercising their rights under the Code, on pain of discharge, and the employee quits as a result of the prohibition. Security Arrangements – stipulations in the CBA requiring membership in the contracting union as a condition for employment or retention of employment in the company. Principles of Union Security Clauses/Agreements 1. Protection – to shield union members from whimsical and abusive exercise of management prerogatives. 2. Benefis – an additional membership will insure additional source of income to the union in the form of union dues and special assessment. 3. Self-preservation – it strengthens the union through selective acceptance of new members on the basis of commitment and loyalty.

Different kinds of Union Security Arrangements (Exceptions to ULP on Interference on the Employees’ Right to Self- Organization) 1. Closed-Shop Agreement  The employer undertakes not to employ any individual who is not a member of the contracting union and the said individual once employed must, for the duration of the agreement, remain a member of the union in good standing as a condition for continued employment.  Does not have any retroactivity  Applies only to new hires Exceptions: a. Employees belonging to any religious sect which prohibit affiliation of their members with any labor organization are not covered by such agreement. The free exercise of religious belief is superior to contract rights. b. Members of the rival union are not covered by such arrangement. c. Confidential employees excluded from rand and file bargaining unit d. Employees excluded by express term of the agreement. Semi-Closed Shop Agreement – the prospective employee must be a member of the union as a condition of employment and has no requirement for the employee to remain as member of the contracting union in good standing as a condition for continued employment. 2. Union Shop Agreement Stipulation whereby any person can be employed by the employer but once employed such employee must, within a specific period, become a member of the contracting union and remain as such in good standing for continued employment for the duration of the CBA. 3. Maintenance of Membership Shop Agreement The agreement DOES NOT require non-members to join the contracting union BUT provides that those who are members thereof at the time of the execution of the CBA and those who may thereafter, on their own volition, become members must for the duration of the agreement maintain their membership in good standing as a condition for continued employment in the company for the duration of the CBA. 4. Preferential Shop Agreement An agreement whereby the employer merely agrees to give preference to the members of the bargaining union in hiring promotion or filling vacancies and retention in case of lay-off. The employer has the right to hire from the open market if union members are not available. 5. Agency Shop Agreement An agreement whereby employees must either join the union or pay to the union as exclusive bargaining agent a sum equal to that paid by the members,

Note: The this is directed against “FREE RIDER” employees who benefit from union activities without contributing support to the union, to prevent a situation of non union members enriching themselves at the expense of union members. Employee members or another/rival union are not considered free rider since when the union (agent) bids to be the bargaining agent, it voluntarily assumed the responsibility of representing all the employees in the appropriate bargaining unit. 6. Modified Union Shop Employees who are not union members at the time of signing the contract need not join the union but all the workers hired thereafter must join. 7. Exclusive Bargaining Shop The union us recognized as the exclusive bargaining agent for all employees in the bargaining unit, whether union members or not. 8. Bargaining for Members only The union is recognized as the bargaining agent only for its own members. Requirements for a valid Termination by the Employer of the Services Closed-Shop Agreement 1. The agreement must be expressed in a CLEAR AND UNEQUIVOCAL way so as not to leave room for interpretation because it is a limitation to exercise of the right to self-organization. 2. Any doubt must be resolved against the existence of a closed-shop agreement. 3. The agreement can only have PROSPECTIVE APPLICATION and cannot be applied retroactively. 4. It can only be exercised by giving the employee his right to DUE PROCESS. a. The employer has the right to satisfy himself that there are sufficient bases for the request of the union. b. The termination of sevices of the employee is not automatic upon the request of the union. 5. It CANNOT BE APPLIED to employees who are already MEMBERS OF THE RIVAL UNION or to the employees based on their RELIGIOUS BELIEFS. Chapter III. UNFAIR LABOR PRACTICES OF LABOR ORGANIZATIONS ART. 249: UNFAIR LABOR PRACTICES OF LABOR ORGANIZATIONS 1. To restrain or coerce employees in the exercise of their right to self-organization. However, a labor organization shall have the right to prescribe its own rules with respect to the acquisition or retention of memebership; Note: INTERFERENCE by labor organization is not ULP as long as the interference does not amount to restraint or coercion. 2. To cause or attempt to cause an employer to discriminate against an employee, including discrimination against an employee with respect to whom membership in such organization has been denied or to terminate an employee on any ground other than the usual terms and

conditions under which membership or continuation of membership is made available to other members. Note: A union member may not be expelled from the union, and consequently from his hob, for personal or impetuous reasons or for causes foreign to the closed-shop agreement. 3. To violate the duty of refuse to bargain collectively with the employer provided that it is the representative of the employees; 4. To cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other things of value, in the nature of an EXACTION, for services which are not performed or not to be performed, including the demand for a fee for union negotiations. Featherbedding (make-work activities) – refers to the practice of the union of its agents inc ausing or attempting to cause an employer to pay or deliver or agree to pay or deliver money or other things of value, in the nature exaction, for services which are not performed or not to be performed, as when a union demands that the employer maintain personnel in excess of the latter’s requirements. Note: It is not featherbedding if the work is performed no matter how unnecessary or useless it may be. 5. To ask for or accept negotiation or attorney’s fees from employers as part of the settlement of any issue in collective bargaining or any other dispute; or to grossly violate a collective bargaining agreement. Persons Civilly Liable for ULP: 1. Officers and agents of employer, 2. Labor organization officers and agents; and 3. Agents and officers who participated or authorized or ratified the act Sweetheart Doctrine- considers it ULP for a labor organization to ask for or accept negotiation or attorney’s fees from the employer in setting a bargaining issue or dispute. Resulting CBA is considered a sweetheart contract – a CBA that does not substantially improve the employees’ wages and benefits and whose benefits are far below those that are provided by law. Blue-Sky Bargaining – is defined as making exaggerated or unreasonable proposals. Whether or not the union is engaged in blue sky bargaining is determined by the evidence presented by the union as to its economic demands. Thus, if the union requires exaggerated or unreasonable economic demands, it is guilty of ULP.

Title Seven. COLLECGTIVE BARGAINING AND ADMINISTRATION OF AGREEMENTS ART. 250: PROCEDURE IN COLLECTIVE BARGAINING Collective Bargaining- 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 of employment including proposals for adjusting any grievances or questions arising under such agreement and executing a contract incorporating such agreements 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) General Rule: No court or administrative agency or official shall have the power to set or fix wages, rates of pay, hours of work or other terms and conditions of employment except as otherwise provided under the Labor Code. Purpose: to encourage a truly democratic method of regulating the relations between the employers and employees by means of agreements freely entered into through collective bargaing. Exceptions: 1. National Wages and Productivity Commission and Regional Tripatritite Wages and Productivity Board-as to wage fixing 2. National Conciliation and Mediation Board and the National Labor Relations Commission-as to wage distortions. 3. Secretary of Labor and Employment and President of the Philippines- as to certification and assumption powers over labor disputes. Jurisdictional Preconditions 1. Employer-Employee relationship 2. Possession of the status of majority representation by the employees representative in accordance with any o the means of selection or designation provided by the Labor Code; 3. Proof of majority representation (Certification of the BLR that the sole and exclusive bargaining agent having won in a certification election); and 4. Demand to bargain under Article 250[a] of the labor code. Note: Where a majority representative has been designated, it is an ULP for the employer, as a refusal of collective bargaining, to deal and negotiate with the minority representative to the exclusion of the majority representative. Collective Bargaining Agreement (CBA) – a contract executed upon request of either the employer or the exclusive bargaining representative of the employees, incorporating the agreement, reached after negotiations with respect to:

1. Wages; 2. Hours of work; and 3. All other terms and conditions of employment in a bargaining unit including proposals for adjusting any grievance or question under such agreement. Zipper Clause – a stipulation in a CBA indicating that issues that could have been negotiated upon but not contained in the CBA cannot be raised for negotiation when the CBA is already in effect. Procedure in Collective Bargaining 1. when a party desires to negotiate an agreement, it shall serve a written notice upon the other party with a statement of propels; 2. Reply by the other party within 10 calendar days with counter proposals 3. In case of different either party may request for a conference which must be held within 10 calendar days from receipt of request; 4. If not settled NCMB may intervene and dispute to a voluntary arbitrator; 5. If not resolve, the parties may go to where they want and resort to any other lawful means (either to settle the dispute or submit it to a voluntary arbitrator. Note: During the conciliation proceeding in the Board, the parties are prohibited from doing any act which may disrupt or impede the early settlement of the disputes. Kinds of Bargaining 1. Single enterprise bargaining – involves negotiation between one certified labor union and one employer. 2. Multi-employer bargaining – involves negotiation between and among several labor union employers. Stages in the Negotiation for a Collective Bargaining Agreement 1. 2. 3. 4. 5. Preliminary Process – written notice for negotiation which must be clear and unequivocal. Negotiation Process Execution Process – signing of the agreement Publication for at least 5 days before ratification Ratification by the majority of all the workers in the bargaining unit represented in the negotiation ( not necessary is case of arbitral award) 6. Registration Process a. Requisites for registration: b. Mandatory provisions; c. Payment of P 1,000; d. 5 copies of CBA; and e. Proof of ratification

7. Administration process – the CBA shall be jointly administered by the management and the bargaining agent for a period of 5 years. 8. Interpretation and Application Process Mandatory Provisions of the CBA 1. 2. 3. 4. 5. 6. 7. Wages; Hours of work; Grievance machinery; Voluntary arbitration; Family planning; Rates of pay; and Mutual observance clause

In addition the Bureau requires that the CBA should include a clear statement of the terms of the CBA. Note: Employer’s duty to bargain is limited to MANDATORY BARGAINING SUBJECTS; as to other matters; he is free to bargain or not to bargain. ART. 252: MEANING OF DUTY TO BARGAIN COLLECTIVELY Where NO CBA Exists The performance of a mutual obligation: 1. To MEET AND CONVENE promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages, hours of work and all other terms and conditions of employment including proposals for adjusting any grievances or questions arising under such agreement; and 2. To EXECUTE A CONTRACT incorporating such agreements if requested by either party. Limitations 1. The duty to bargain collectively does not compel any party to: a. Agree to a proposal; b. Make a concession; or c. Make room for “take it or leave it” posture. d. The parties cannot stipulate terms and conditions of employment which are below the minimum requirements prescribed by law. Where CBA Exists Note: Collective bargaining does not end with the execution of the agreement. It is a continuous process. The duty to bargain imposes on the parties during the term of their agreement the mutual obligation to meet and confer promptly and expeditiously and in good faith for the purpose of adjusting any grievances or question arising under such agreement.

Four (4) Forms of ULP in Bargaining: 1. 2. 3. 4. Failure or refusal to meet and convene; Evading the mandatory subject of bargaining; Bad faith in bargaining including failure or refusal to execute the CBA. Gross violation of the CBA

Note: Violations of the collective bargaining agreement except those which are GROSS in character, shall no longer to be treated as an unfair labor practice but as a grievance under the Collective Bargaining Agreement. (Art. 261, Labor Code; Silva v NLRC, 274 SCRA 159).

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