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En Consulta scutarius compilation labor relations 2009

1.

THE APPLICABLE LAWS

Law: PD 442 as amended by RA 6715 approved on March 21, 1989


A DECREE INSTITUTING A LABOR CODE, THERBY REVISING AND
CONSOLIDATING LABOR AND SOCIAL LAWS TO AFFORD PROTECTION TO
LABOR,
PROMOTE
EMPLOYMENT
AND
HUMAN
RESOURCES
DEVELOPMENT AND ENSURE INDUSTRIAL PEACE BASED ON SOCIAL
JUSTICE.

Article 1. This Decree shall be known as the Labor Code of the Philippines
May 1, 1974 PD 442 was signed into law
Took effect Nov. 1, 1974

Article 2. This Code shall take effect Six months after its promulgation
RA 6715- Herrera-Veloso Law
Sen. Blas Ople Father of Labor Code

NOTE: Before the effectivity of the Labor code, there was no provision on the terms and
conditions of employment. This is the significance of the effectivity of the Labor Code.
Significance of RA 6715
Computation of Backwages after RA 6715 took effect, the award of backwages from
the time compensation was withheld up to the actual reinstatement

Concept of Labor

Labor in ordinary signification, is understood as the physical toil although it does not
necessarily exclude the application of skill, thus, there is skilled and unskilled labor.

General Sense: it is the exertion of human being by his mental or physical effort towards
production of goods or services.

Technical Sense: the working class or workingmen


Skill the familiar knowledge of any art or science, united with readiness and dexterity in
execution or performance or in the application of the art or science to practical purposes.
Work broader than labor as work covers all forms of physical or mental exertion or both
combined, for the attainment of some object other than recreation or amusement per se.
Worker broader than employee as workers refer to self-employed people and those
working in the service and under the control of another, regardless of rank, title, or nature of
work.
Employee a salaried person working for another who controls or supervises the
means, manner, or method of doing the work
Three Fields of Labor Law
1.
Labor Standards Law sets out the minimum terms, conditions, and benefits of
employment that employers must provide or comply with and to which workers are entitled as a
matter of legal right

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/e.g. wages and hours of work, on safety and health of employees, employment
benefits
2.
Labor Relations Law defines the status, rights, duties, as well as the institutional
mechanism that govern the individual and collective interactions between employers,
employees, and their representatives
e.g. unionization, negotiation, dispute settlements

Labor relations law is the mechanism by which employment standards are negotiated,
adjusted, and enforced.
Distinction: Labor standards the material or substance while labor relations the
mechanism that processes the substance.
1.
Labor Legislation or Social or Welfare measures consists of statutes, regulations,
and jurisprudence governing the relations between capital and labor, by providing for certain
employment standards and a legal framework for negotiating, adjusting, and administering
those standards and other incidents of employment.
e.g. social security law, agrarian reform law, law on migrant workers
Four systems of Labor
1.
slavery- refers to the extraction of work or services from any person by means of
enticement, violence, intimidation or threat, use of force or coercion, including deprivation of
freedom, abuse of authority or moral ascendance, debt bondage or deception.

The worker is owned by another at his free disposal


1.
serfdom- is the socio-economic status of peasants under feudalism, and specifically
relates to Manorialism. It was a condition of bondage or modified slavery seen primarily during
the Middle Ages in Europe. Serfdom was the enforced labour of serfs on the fields of
landowners, in return for protection and the right to work on their leased fields.

Worker, by customary right to his Lord, owes certain service


1.
free artisan- same as modern independent contractorship wherein an independent
contractor is engaged in a business separately distinct from the principal, the performed job,
work or service, and works according to his own means and methods, free from the control and
direction of the principal except as to the results thereof.

A free person who offers his services to others subject to nobodys will
1.
wage system- same as modern employer-employee system where there is an
employee under the control and supervision of an employer as to the means, manner or method
of which the work is to be accomplished including the result thereof and is paid for the work
done in terms of wage.

A person offers his services to another under an employment contract for which such
service is paid by wages.

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Aim or justification

SOCIAL JUSTICE (Williams vs calalang) the humanization of laws and the


equalization of social and economic forces by the state so that justice in its rational and
objectively secular conception may at least be approximated

It is the equality under the law and the attainment of decent quality of life by the people
through humane productive work.

It is both a legal mandate and a socio-economic goal

Article II, sec. 10 of the constitution

The state shall promote social justice in all phases of national development.

The state affirms labor as a primary social economic force. Therefore, it shall protect the
rights of workers and promote their welfare.
SUPREME COURT DECISIONS

Article 8, NCC.
Judicial decisions applying or interpreting the laws or the Constitution shall form a part of
the legal system of the Philippines.
Sources of labor laws (Labor Standards)
a)
The Labor Code , PD 442 as amended
b)
Judicial decisions
c)
Rules and regulations issued by administrative agencies
d)
Omnibus Rules as amended by DO No. 09, Series of 1997 & DO No. 40-03,
Series of 2003, as amended by DO Nos. 40-A-03, 40-B-03, 40-C-05

Rules and regulations have the force and effect of law, provided they do not
expand the law or strip the law. Otherwise, under the rules on statutory construction,
these will be considered void.
Sources of Labor laws (Labor Relations)
PRIMARY
a)
b)
c)

Constitution
Statutes ( NCC, RPC, Special Laws)
Supreme court decisions

SECONDARY
a)
decisions of foreign courts (where our labor statutes are based or patterned after
statutes in foreign jurisdictions, decisions in the high courts in those jurisdictions
construing and interpreting should receive the careful attention of our courts in the
application of our laws)
b)
reviewers in labor laws/ textbooks
c)
opinions of labor department or agencies
d)
rules and regulations issued DOLE ( department orders)
NOTE:

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Labor laws do not only include PD 442 as amended but as well as decisions of the SC
interpreting and applying the laws. Included as well are rules and regulations issued by the
appropriate government agencies (e.g. DOLE)
Basis of Enacting Labor Laws
1.
POLICE POWER the power inherent in a government to make laws, within
constitutional limits, to promote the order, safety, health, morals, and general welfare of society.

It is the states authority to enact legislation that may interfere with personal liberty or
property in order to promote the general welfare.
e.g. Art. 263(g) of the LC
Police power consists of:
a.
an imposition of restraint upon property or liberty
b.
in order to foster the common good
1.
SOCIAL JUSTICE the law is geared towards the concern of labor because Our
legislators realize the social and economic imbalance between the employer and employee.
Thus, ART 4 of the Labor Code provides:
All doubts in the implementation and interpretation of the provisions of this
Code, including its implementing rules and regulations shall be resolved in favor
of labor
(e.g. Migrant workers act, retirement law, Art. Xix, sec. 19)
2.

PROTECTION TO LABOR CLAUSE ( Art, XIII, Sec. 3)


e.g. Migrant Workers Act

3.

DOCTRINE OF INCORPORATION
Article II, Sec. 2
The Philippines renounces war as an instrument of national policy, adopts the
generally accepted principles of international law as part of the law of the land, and
adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all
nations
Limitations in the Enactment of Labor Laws

1. Non-impairment of contracts clause ( Art. III, Sec. 10 )


No law impairing the obligations of contracts shall be passed xxx
However, Congress may pass laws to regulate them.
2. Equal Protection Clause (Art. III, Sec. 1)
No person shall be deprived of life, liberty, property without due process of
law, nor shall any person be denied the equal protection of the laws. Individuals
similarly situated must be treated equally under the law (Equality among equals)
3. Prohibition against involuntary servitude ( Art. III, Sec. 18 par. 2)

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No involuntary servitude in any form shall exist except as a punishment
for a crime whereof the party shall have been duly convicted.

Meaning, no individual must be made to work against his will (e.g. anti-trafficking in
persons act, forced labor, slavery)
4. Due process Clause ( Art. III, Sec. 1)
5. Other constitutional provision
Provisions on the effectivity of Labor laws
1.

ART. 2,NCC
Laws shall take effect after fifteen (15) days following the completion of their
publication either in the Official Gazette or in a newspaper of general circulation
in the Phils., unless it is otherwise provided

2.

ART. 5, LC
xxx. Such rules and regulations shall become effective fifteen days after
announcement of their adoption in newspapers of general circulation.

DOLE is the lead agency in enforcing labor laws and it possesses rule-making in the
enforcement of the code. But a rule or regulation that exceeds its rule-making authority is void.
The rule-making power is exceeded when the implementing rule changes, wittingly or
unwittingly, of the content or meaning of the law which the rule aims to implement. The
implementing rules must be subordinate to the law itself.
3.

EO 292 ( as amended by RA 9492 approved on July 25, 2007)


EXECUTIVE ORDER NO. 292
INSTITUTING THE "ADMINISTRATIVE CODE OF 1987"
Chapter 5
OPERATION AND EFFECT OF LAWS
Sec. 18. When Laws Take Effect. - Laws shall take effect after fifteen (15) days
following the completion of their publication in the Official Gazette or in a
newspaper of general circulation, unless it is otherwise provided.
Sec. 19. Prospectivity. - Laws shall have prospective effect unless the contrary
is expressly provided.
Sec. 20. Interpretation of Laws and Administrative Issuances. - In the
interpretation of a law or administrative issuance promulgated in all the official
languages, the English text shall control, unless otherwise specifically provided.
In case of ambiguity, omission or mistake, the other texts may be consulted.
Sec. 21. No Implied Revival of Repealed Law.- When a law which expressly
repeals a prior law itself repealed, the law first repealed shall not be thereby
revived unless expressly so provided.
Sec. 22. Revival of Law Impliedly Repealed. - When a law which impliedly
repeals a prior law is itself repealed, the prior law shall thereby be revived, unless
the repealing law provides otherwise.

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Sec. 23. Ignorance of the Law. - Ignorance of the law excuses no one from
compliance therewith.
Rules on the Implementation and Interpretation of labor laws
Article 4, LC. All doubts in the implementation and interpretation of the
provisions of this Code, including its implementing rules and regulations, shall be
resolved in favor of labor.
Article 1700,NCC. The relation between capital and labor are not merely
contractual. They are so impressed with public interest that labor contracts must
yield to the common good. Therefore, such contracts are subject to the special
Laws on labor unions, collective bargaining, strikes and lockouts, closed shop,
wages, working conditions, hours of labor, and similar subjects.
Article 1701, NCC. Neither capital nor labor shall act oppressively against the
other, or impair the interest or convenience of the public.
Article 1702, NCC. In case of doubt, all labor legislations and all labor contracts
shall be construed in favor of the safety and decent living of the laborer.
Parties to an employment contract under Art. 1700, NCC
1.
employer
2.
employee
3.
state
4.
public
Labor and chattel
TRIPARTISM (Art. 275)

Amendatory decree no. 850 (1975) adopted tripartism as a state policy


Tripartism is a representation of three sectors in policy-making bodies of the government

1.
public or the government
2.
employers
3.
workers

Such kind of representation is not ordained, not even by the Constitution. What is
provided for, for the private sector is workers participation in policy and decision-making
processes directly affecting their rights, benefits, and welfare.
2.

BASIC PRINCIPLES
Constitutional rights of workers in relation to labor relations

1.

right to self-organization (to join or not to join an organization)

2.
right to conduct collective bargaining or negotiation with management (right to
demand better terms and conditions of employment)

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3.
right to engage in peaceful concerted activities including strike, in accordance with
law (right to picket, boycott)
4.
right to enjoy security of tenure (right to continue ones employment until such is
severed for just or authorized causes as provided for by law)
5.
participate in policy and decision-making processes affecting workers rights and
benefits as may be provided by law
CONCEPT OF EMPLOYER-EMPLOYEE ( Labor Relations )

Article 212(e)

EMPLOYER includes any person acting in the interest of an employer directly or


indirectly . The term shall not include any labor organization or any of its officers or agents
except when acting as an employer.

Article 212 (f)

EMPLOYEE includes any person in the employ of an employer. The term shall not be
limited to the employees of a particular employer, unless this code so expressly states. It shall
include any individual whose work has ceased as a result of or in connection with any current
labor dispute or because of any other substantially equivalent and regular employment.

Employer may be:


1.
2.

natural
juridical

Employee only natural persons may qualify as an employee. It could be


Filipino citizens and foreigners
Foreign Investment Code
Of those corporations owned by foreigners, if they want to employ alien as
their employees, the following requirements must be complied with:
1.
Such domestic or foreign companies should obtain a permit form the DOLE
( Alien Employment Permit) at the nearest regional office
2.
There must be a determination of the non- availability of a person in the
Philippines, who is competent, able, willing at the time of application to perform the
services for which the alien is desired.

The purpose of the law is to protect the Filipinos.


FOUR-FOLD TEST

1.

Selection and engagement of employees

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2.

Payment of wages

3.

Power of dismissal

4.
Power of control over employees conduct and over the means and methods by which
the work is to be accomplished
ECONOMIC REALITY TEST

Determine the underlying economic realities of the activity or relationships.

The determination of the relationship between employer and employee depends


upon the circumstances of the whole economic activity
1.
The (broad) extent to which the services performed are an integral part of the employers
business.
2.
The (limited) extent of the workers investment in the equipment and facilities
3.
The nature (close supervision) and (high) degree of control exercised by the employer
4.
The workers (limited) opportunities for profit and loss
5.
The (small) amount of initiative, skill, judgment or foresight required for the success of
the claimed independent enterprise
6.
The (high degree of) permanency and duration of the relationship between the worker
and the employer
7.
The degree of dependency of the worker upon the employer for his continued
employment in that line of business.
Note: Unlike employee, independent contractor does not solely depend on the company for
continued work as they can pursue other jobs.
EMPLOYER-EMPLOYEE VS. PRINCIPAL-AGENT
ER-EE governed by the Labor Code
Principal-Agent Civil Code
AGENT (Art. 1868, NCC). By the contract of agency, a person binds
himself to render some service or to do something in representation or on behalf
of another with the consent or authority of the latter.
PRINCIPAL-AGENT RELATIONSHIP
It is the principal who selects the agent. An agent is compensated under the contract of
agency of services rendered. He is disciplined by the principal as in the case of an employee
because the agent is under the authority of the principal. The principal controls the means and
methods of the work of an agent. In this relationship, there is only one party. The agent is
merely an extension of the principal. They are regarded as one. So if there is a contractor
relationship, it is not among three parties but is between the principal/agent and the other party.
Thus, to make a distinction between a principal-agent and employer-employee, the fourfold test will not be used because the agent is selected by the principal and is also compensated
by the principal and most oftentimes, the principal substitutes his own judgment for that of the
agent

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EMPLOYER-EMPLOYEE VS. PRINCIPAL-CONTRACTOR (DO NO. 9)
Carries a distinct and independent business and undertakes to perform the job, work, or
service on its own account and under its own responsibility, according to its own manner and
method and free from the control and direction of the principal in all matters connected with the
performance of the work except as to the results thereof.
PRINCIPAL-INDEPENDENT CONTRACTOR RELATIONSHIP
The principal selects the contractor. The contractor is compensated for services
rendered. The contractor is not under the discipline of the principal. The distinction says that
aside from engaging in the business separately distinct from the principal. The performed job,
work, or services is according to his own means and methods free from the control and direction
of the principal except as to the results thereof.
Contractor may be Individual, Corporate

Juridical Entity

ARTICLE 1713, NCC

By contract for a piece of work, the contractor binds himself to execute a


piece of work for the employer, in consideration of a certain price or
consideration. The contractor may either employ only his labor, skill, or also
furnishes the materials.
CHIEF CHARACTERISTICS OF AN EMPLOYEE

Economic Dependence by the Worker


Subordination in Work Relation

3.

RIGHT TO SECURITY OF TENURE

Security of tenure (Art 279); concept; constitutional & statutory basis


ARTICLE 279.
Security of Tenure. In cases of regular employment, the
employer shall not terminate the services of an employee except for

i.
ii.

a just cause or
when authorized by this Title.

An employee who is unjustly dismissed from work shall be entitled to


a.
reinstatement without loss of seniority rights and
b.
other privileges and
c.
to his full backwages, inclusive of allowances, and
d.
to his other benefits or their monetary equivalent computed from the time his
compensation was withheld from him up to the time of his actual reinstatement.
Concept
Security of Tenure is the right of the employee to continue with his employment unless
terminated for a just authorized cause.

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Constitutional Basis (Art. 13, Sec. 3, 1987 Constitution)
The State shall afford full protection to labor, local and overseas,
organized and unorganized, and promote full employment and equality of
employment opportunities for all.
It shall guarantee the rights of all workers to self-organizations,
and peaceful concerted activities, including the right to strike in
accordance with law. They shall be entitled to security of tenure,
humane conditions of work, and a living wage. They shall also participate
in policy and decision-making processes affecting their rights and benefits
as may be provided by law.
The State shall promote the principle of shared responsibility
between workers and employers and the preferential use of voluntary
modes in settling disputes, including conciliation, and shall enforce their
mutual compliance therewith to foster industrial peace.
The State shall regulate the relations between workers and
employers, recognizing the right of labor to its just share in the fruits of
production and the right of enterprises to reasonable returns on
investments, and to expansion and growth.
Statutory Basis ( Art 279 of LC)
Section 2. Security of tenurea.
In cases of regular employment, the employer shall not terminate the services of an
employee except for just or authorized causes as provided by law, and subject to the
requirements of due process.
b.
The foregoing shall also apply in cases of probationary employment; provided, however,
that in such cases, termination of employment due to failure of the employee to qualify in
accordance with the standards of the employer made known to the former at the time of
engagement may also be a ground for termination of employment.
c.
In cases of employment covered by contracting or subcontracting arrangements, no
employee shall be dismissed prior to the expiration of the contract between the principal and
contractor or subcontractor as defined in Rule III-A, Book III of these Rules, unless the dismissal
is for just or authorized cause, or is brought about by the completion of the phase of the contract
for which the employee was engaged, but in any case, subject to the requirements of due
process or prior notice.
d.
In all cases of termination of employment, the following standards of due process shall
be substantially observed:
For termination of employment based on just causes as defined in Art 282
of the Labor
Code:
i.
A written notice served on the employee specifying the ground or grounds for
termination, and giving said employee reasonable opportunity within which to explain his side.
ii.
A hearing or conference during which the employee concerned, with the assistance of
counsel if he so desires is given opportunity to respond to the charge, present his evidence, or
rebut the evidence presented against him.
iii.
A written notice of termination served on the employee, indicating that upon due
consideration of all the circumstances, grounds have been established to justify his termination.
For termination of employment as defined in Art 283(authorized causes)
of the Labor Code, the requirement of due process shall be deemed complied
with upon service of written notice to the employee and the appropriate

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Regional Office of the DOLE at least 30 days before effectivity of the
termination, specifying the ground or grounds for termination.
If the termination was brought about by the completion of a contract or
phase thereof, or by failure of an employee to meet the standards of the
employer in the case of probationary employment, it shall be sufficient that a
written notice is served the employee, within a reasonable time from the
effective date of termination.
Classification of employment & kinds of employees (Arts 280 & 281); other
classification (construction industry under DO no. 19, Series of 1993; TV & Radio
Broadcasting, see former DOLE Policy Instruction No. 40; hospitals; private educational
institution under Manual of Regulations for Private School)
Classification of Employment and Kinds of Employees
ARTICLE 280.Regular and casual employment. The provisions of written
agreement to the contrary notwithstanding and regardless of the oral
agreements of the parties, an employment shall be deemed to be regular
where the employee has been engaged to perform activities which are
usually necessary or desirable in the usual business or trade of the employer
except where the employment has been fixed for a specific project or
undertaking, the completion or termination of which has been determined at
the time of the engagement of the employee or where the work or service to
be performed is seasonal in nature and the employment is for the duration of
the season.
An employment shall be deemed to be casual if it is not covered by
the preceding paragraph: Provided, That any employee who has rendered at
Least One Year Of Service, whether such service is continuous or broken,
shall be considered a regular employee
with respect to the activity in which he is employed and his
employment shall continue while such activity exists.
ARTICLE 281.Probationary employment. Probationary employment shall not
exceed six months from the date the employee started working, unless it is
covered by an apprenticeship agreement stipulating a longer period. The
services of an employee who has been engaged on a probationary basis
may be terminated for a just cause or when he fails to qualify as a regular
employee in accordance with reasonable standards made known by the
employer to the employee at the time of his engagement.
An employee who is allowed to work after a probationary period shall be
considered a regular employee.
NOTE:Art. 280 is NOT the yardstick in determining employer-employee relationship.
What is controlling is the four-fold test and (now) the economic reality test. Art. 280 apply
only when the existence of employer-employee relationship is not in dispute.
1.

11

Regular Employment - an employment shall be deemed to be regular where


the employee has been engaged to perform activities which are usually
necessary or desirable in the usual business or trade of the employer.
- the word usually is used because it does not mean they always have
to perform tasks which are necessary or desirable.

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- it also refers to casual employees who have rendered at least one year
of service, whether continuo/us or broken, with respect to the activity they are
employed.
- probationary or term employees are also considered regular once they
are allowed to work beyond the term or duration of the project
.
- project employee who has been continuously rehired (Maraguinot
Case)- becomes regular for the specific job or continuously rehired for:
i. employee is continuously rehired from project to project even
with gaps of time in between
ii. task is UNOD in UTOB, or else the project employee is
considered only a casual employee
iii.rehired for the same task or nature of task
- a project employee concerted to regular employee is still not paid for the
period he does not work. But if the employer is required to hire him when the
next project requires the particular job he does, or else, the employer is guilty
of illegal termination.
Regular Employee may either be
a.
Permanent a regular appointed for an indefinite period , either
with or without passing a probationary period.
b.
Probationary one who is placed in a trial period whose
performance is assessed whether satisfactory or not. If performance is
satisfactory, it is followed by a regular employment, if not, the employment is
terminated.
-An employer has the prerogative whether to subject the employee with
probationary employment or not. Thus, an employee may be considered as a
permanent employee on his first day of work.
Employees may be considered regular depending on 2 factors:
1. Regular employees by the nature of the work UNOD in UTOB
2. Regular employees by the length of service
2.Casual Employment - An employment shall be deemed to be casual if it is not
covered by the preceding paragraph (regular employment)
- An employment is casual if :
a worker is employed to perform work not related to the business or trade of the employer
and
he is employed for a short term or short duration.(e.g. less than a year)
- does not have security of tenure before reaching the one-year period, however,
if he has rendered at least one year of service, whether such service is
continuous or broken, he shall be considered a regular employee with respect to
the activity in which he is employed and his employment shall continue while
such activity exists.
Examples, not usually necessary or desirable:
- in a bank: janitorial service
- in a manufacturing company: the cutter of cogon grass in the companys
premises is totally alien to the business of a company manufacturing cultured
milk.

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-Before reaching the one year period, a casual employee can be terminated if his
work is found to be unsatisfactory. The moment he reaches the one-year period,
he becomes a regular employee who can neither be removed nor dismissed
except for a just cause as provided in the LC.
3.Project Employment is one where the employment has been fixed for a specific
project or undertaking, the completion or termination of which has been
determined at the time of the engagement of the employee

Three instances when the project employee is converted into a regular employee:
1. A project employee may be converted to a regular status when he was
employed for a specific project, the completion of which is determined, but
despite the termination of the project, he is still made to work. It negates the
essence of project employment. It shows that the employees work is needed not
only in the specific project.
2. Within the project itself, and before the completion of the project, the employee
is given tasks not related at all to the project. Giving the employee additional
works negates the essence of project employment. It shows that his services is
not limited to the project. Even if the extra work is not UNOD in UTOB to the main
business, he is converted to a regular employee.
3. Maraguinot case. Under multiple succeeding projects, can have gaps between
each project, the employees can still be converted to regular status but only
when the project employee is rehired continuously, and for the same nature of
task. There is a pattern showing that UNOD in UTOB.
Note: The one-year rule only applies to casual employment, not to project nor
seasonal employees.
Two kinds of Project Employee:
1. tasks which are UNOD in UTOB
2. tasks which are not UNOD in UTOB
a. the job must be distinct from the totality of ERs business
b. the project must be definite as to its completion
c. Employment terminates with the project, regardless of the period

Principal Test for determining whether a particular employee is a project


employee or not:

Whether or not the project employee is assigned to carry out a specific project or
undertaking, the duration and scope of which were specified at the time the employee is
engaged for that project.
A work pool is not necessary in order to convert the project employee into
regular, But its existence may signify that the project employee has become
regular if there is a continuous rehiring.
Requirement: 1. he must be hired for that specific project
2. the completion or termination of his project was made known to
him

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4.Seasonal Employment - is one where the work or service to be performed is
seasonal in nature and the employment is for the duration of the season.
Seasonal Employee
-Hired for a specific period of time during the year, and may be UNOD in UTOB

Rehired whenever their services are required (e.g. farm workers)

At the arrival of the season must be rehired, or else employer is guilty of illegal
termination

Allowed to seek work elsewhere while off-season


2 requisites to prove seasonal employees:
1. the work or services performed by the workers are seasonal in nature
2. they must be employed for the duration of one season only
-Seasonal workers who are called to work from time to time and are temporarily
laid off during off-season are not separated from the service in said period, but
are merely considered on leave until re-employed.
- In this case, conversion occurs similar to project employees. When they are
continuously rehired for the same task/nature of task, they become regular
employees. During off season, they are temporarily laid off, without pay, but they
are still considered regular employees.
Fixed term
- the job is assigned a specific date of expiration even if the job is
considered UNOD in UTOB. The important aspect is that the job is time bound.
Brent school ruling: Requirements for a valid Fixed Term employment:
1.where a fixed period for employment was agreed upon knowingly and
voluntarily by the parties
2. without any force, duress or improper pressure being brought to bear upon the
employee and absent any circumstances vitiating consent, or
3. where it satisfactorily appears that the employer and employee dealt with each
other on more or less equal terms with no moral dominance whatever being
exercised by the former over the latter
5.Probationary Employment is one who is on tentative employment during which
the employer determines whether he (employee) is qualified for permanent
employment.
- Probationary period is 6 months for the employer to determine
the eligibility of the employee. But the period may be shortened or extended.
Probationary employee is converted to regular after the period imposed has
lapsed, and the employee continues to work. It implies that the employee has
passed and is eligible for regular employment. Also, if the terms and conditions of
employment are not clearly provided by the employer, the standards are not clear
then the employee is deemed a regular employee. This is because the employee
has no knowledge of what standards he or she must meet, and so this should not
work to his or her prejudice.

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Employee is hired for 6 months in order to determine qualification or capacity as
a regular employee although an employee can become regular right away
without going through probation.

The employee is given the standards at the time of engagement (employer must
explain not merely giving document)
- LC provides that the duration of probation is 6 months (maximum period of
probation). The exceptions are the following:
(a) xxx unless it is covered by an apprenticeship agreement stipulating a longer
period such as jobs which are highly technical ( not an employee); and
(b) In cases of academic personnel: the Manual of Regulations for Private School
provides a longer probationary period.
Academic personnel- Include all school personnel who are formally
engaged in actual teaching service or research assignment, either on fulltime or part-time basis, as well as those who possess certain prescribed
functions directly supportive of teaching, such as registrars, librarian,
guidance counselors, researchers, and other similar persons.
They include school officials responsible for academic matters, and may
include other school officials.
Sec 92. Manual of Regulation of Private Schools
a. for those in the secondary and elementary level, a probationary period
of not more than 3 consecutive years of satisfactory service (calendar
year)
b. for those in the tertiary level, not more than 6 consecutive regular
semesters of satisfactory service (school year)
c. for those in trimester, for not more than 9 consecutive trimesters of
satisfactory service (school year)
Non-academic personnel- means school personnel usually engaged in
administrative functions who are not covered under the definition of
academic personnel.
They may include school officials.
When is probationary employment permissible?
a. when the work requires special qualifications, skills training or experience
b. when the work, job or position involved is permanent, regular, stable or
indefinite and not merely casual or intermittent.
c. if the work is not intended to circumvent the security of tenure
d. if it is necessary or customary for the position or the job involved
General rule: Probationary period should not exceed 6 months from the date the
employee started working.
Exception: The 6 months period provided in the law admits of certain exceptions
such as:
1. when the ER and EE mutually agree on a shorter or longer period;
2. when the nature of work to be performed by the EE required a longer
period;
3. when a longer period is required and established by company policy

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- Security of tenure is still available to probationary employees, but only for a


limited period.

a.
b.

Other Classification (Special Laws)


1. Construction Industry (Department Order No. 19, Series of 1993)
Project
Non-Project
b.1. probationary
b.2. regular
b.3. casual
2. Broadcast Industry (DOLE Policy Instruction No. 40)
Station Employee:
a. are those whose services are engaged to discharge functions which
are usually necessary and desirable to the operation of the station and
b. whose usefulness is not affected by changes of programs, ratings, or
formats and who observe normal working hours.
- These shall include employees whose talents, skills or services are
engaged as such by the station without particular reference to any
specific program undertaking and are not allowed by the station to be
engaged or hired by other stations or persons even if such employee do
not observe normal working hours.
Program employee:
a. are those whose skills or services are engaged by the station for a
particular or specific program or undertaking and
b. who are not required to observe normal working hours such that on
some days they work for less than 8 hours and on other days beyond
the normal working hours observed by station employees; and
c. are allowed to enter into employment contracts with other persons,
stations, advertising agencies or sponsoring companies.
*Same classification as in the Labor Code. Policy Instruction No. 40 has been
declared to be of NO effect in the case of Sonza vs. ABS-CBN (G.R. 138051,
June 10, 2004) Policy Instruction 40 is a mere executive issuance which does not
have the force and effect of law. There is no legal presumption that Policy
Instruction No. 40 determines SONZAs status. A mere executive issuance
cannot exclude independent contractors from the class of service providers to the
broadcast industry. The classification has no basis either in law or in fact.
3. In Private Educational Institutions (Manual of Regulations for Private School)

a.

Academic Personnel
a.1. Academic teaching
a.2. Academic non-teaching (librarian)
b.
Non-Academic Personnel those staff who perform administrative functions but are not
involved in academic work
* Their employment is NOT covered by the MRPS or by the TVET Manual but by
the Labor Code.
4. In Hospitals
Q: Are Resident Physicians considered employees of hospitals?
A: It depends. If undergoing training, he is NOT an employee of the hospital. If not
undergoing training, he is an employee, but only on a term basis.

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BASIS- Omnibus Rules, Book III, Rule X-A, Sec.15
Residents in training. There is employer-employee relationship
between resident physicians and the training hospitals, UNLESS
(1)
there is a training agreement between them and
(2)
the training program is duly accredited or approved by the
appropriate government agency. Xxx
-

Exceptions to regular employment; scope of security of tenure


Exceptions to regular employment
1. Seasonal Employment
2. Project Employment
3. Casual Employment
4. Fixed Term/Period Employment an employment that will last only for a definite
period, as agreed by the parties.
Guidelines for the validity of this kind of employment
1. the fixed period of employment (ET) is knowingly and voluntarily agreed
upon by the parties without any force, duress, or improper pressure being
brought to bear upon the EE and absent any other circumstances vitiating his
consent.
2. It satisfactorily appears that the ER and the EE dealt with each other on
more or less equal terms with no moral dominance being exercised by the
former or the latter.
3. It must not circumvent the provisions in the labor code on security of
tenure.
Scope of Security of tenure
IRR Book VI Rule 1
Section 1. Coverage- This rule shall apply to all establishments and undertakings,
whether operated for profit or not, including educational, medical, charitable and
religious institutions and organizations, in cases of regular employment with the
exception of the Government and its political subdivisions including governmentowned or controlled corporations.

4.

MANAGEMENT PREROGATIVE

CONCEPT

The right of an employer to regulate, generally without restraint, according to its own
discretion and judgment, every aspect of its business, subject to limitations of the law.
It should be exercised in good faith.
This privilege is inherent in the right of employers to control and manage their enterprise
effectively.

SCOPE
Extent of Management Prerogative to Prescribe Working Methods, Time, Place,
Manner and Other Aspects of Work

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Employers have the freedom and prerogative, according to their discretion and best
judgment, to regulate and control all aspects of employment in their business
organizations. Such aspects of employment include hiring, work assignments, working
methods, time, place and manner of work, tools to be used, processes to be followed,
supervision of workers, working regulations, transfer of employees, work supervision,
lay-off of workers and the discipline, dismissal and recall of workers. (Philippine Airlines,
Inc. vs. NLRC, G. R. No. 115785, Aug. 4, 2000).
Thus, as held in one case, management retains the prerogative, whenever exigencies of
the service so require, to change the working hours of its employees.

LIMITATIONS ON THE EXERCISE OF MANAGEMENT PREROGATIVES


The exercise of management prerogative is not absolute but subject to the limitations imposed
by law or by CBA, employment contract, employer policy or practice and general principles of
fair play and justice.
1.

Right to Hire
This is inherently a management right because it is not found in the Labor Code.
Hence, it is not a statutory right.
It is within the right of an employer to hire his own employees. Labor laws do not,
generally, authorize interference with the employers judgment in the conduct
of business. Thus the determination of the qualifications and fitness of
workers for hiring are exclusive prerogatives of management.
The employer is free to determine using his own discretion and best judgment. All
elements of employment, from hiring to firing, except in cases of unlawful
discrimination or those which may be provided for by law.

2.

Right to Promote

Promotion is the "advancement from one position to another with an


increase in duties and responsibilities as authorized by law, and usually
accompanied by an increase in salary."Consent here is required.

Limiations: The promotion must be within the consent of the employee, as there is
no law that compels an employee to accept a promotion for the reason that a promotion
is in the nature of a reward, which a person has a right to refuse.

The indispensable elements of promotion are:


1. there must be an advancement form one position to another or
2. an upward vertical movement of the employees rank or position

Any increase in salary should only be considered incidental but never


determinative of whether or not promotion is bestowed upon an employee. This can be
likened to the upgrading of salaries of government employees without necessarily
conferring upon them the concomitant elevation to higher positions.
3.

Right to Demote
Demotion means the movement from one position to another with a
diminution in duties and/or status or rank, not necessarily with a reduction in
salary. Demotion necessitates the issuance of a notification for demotion for
cause.

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Demotion must always be for cause and must pass the test of equity,
reasonableness and good faith. In case however, a reduction of salary is necessary, the
company must be ready to show:
1.
that it has complied with due process requirements prior to the employers action,
and
2.
that the demotion is for a cause.

It may be exercised by an employer when the interests of the employer reasonably


demand subject to the following limitations:
1)
It must not be exercised arbitrarily,
capriciously or whimsically.
2)
It must be for a cause
3)
It must pass the test of reasonableness,
equity and good faith.

Failure on these requirements may amount to illegal or constructive dismissal, as


the case may be. It is even more so if the demotion is not part of the company policy.
4. Right to Transfer
Transfer is a "movement from one position to another which is of
equivalent rank, level or salary, without break in service.
It is the employers prerogative, based on its assessment and perception of its
employees qualifications, aptitudes, and competence, to move them around in the
various areas of its business operations in order to ascertain where they will function
with maximum benefit to the company. An employees right to security of tenure does not
give him such vested right in his position as would deprive the company of its
prerogative to change his assignment or transfer him where he will be most useful. When
his transfer is not unreasonable, nor inconvenient nor prejudicial to him, and it does not
involve a demotion in rank or a diminution of his salaries, benefits, and other privileges,
the employee may not complain that it amount to a constructive dismissal.

This right can be challenged if it is exercised arbitrarily or capriciously or in the


absence of good faith.

Consent here on the part of the employee is not required since this can only be
exercised by the management in accordance with best interest of the company by trying
to see where a particular employee can be best maximized.

Transfer is reasonable if there is a need to augment work force because of a work


assignment.
Requisites for a valid transfer:
1)
Reasonable or it must have a sound purpose.
2)
Convenience or welfare of the employee.
3)
Not prejudicial to the employee
4)
Not involve a demotion of rank or status or a diminution
of the employees salary, benefits and other benefits.

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Violation of the above requirements amounts to constructive dismissal.

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5. Right to Dismiss
It is a right to on the management as a measure of self-protection on the
part of the employer against all acts inimical to its interest. It is not simply a
prerogative but a right because it is found in the Labor Code.
Others: reorganization & abolition of positions; early retirement program, voluntary
resignation program, job evaluation program, etc.,
Reorganization and abolition of positions
In the exercise of this management prerogative, adequate proof must be shown
that the abolished positions were unnecessary. It is not enough for a company to
merely declare that it has become overmanned. It must produce adequate proof that
such was the actual situation in order to justify the dismissal of the affected
employees for redundancy.
It is management prerogative to merge job functions in line with the
streamlining of the company to cut costs even if an employee would thereby lose his
employment due to abolition of his position.
Abolition of position due to company reorganization or merger
Management can undertake reorganization within the company or enter into
mergers with other companies to meet the demands of the enterprise. In such cases,
the company has the prerogative to abolish managerial and confidential positions or
create new ones as the necessity for them requires.

Early retirement program


Voluntary resignation program
Job evaluation program
The employer has the prerogative to rationalize the duties and functions of all
positions, re-establish levels of responsibility, and reorganize both wage and operational
structures. It can rank the jobs according to effort, responsibility, training and working
conditions and relative worth of job. As a result, all positions can be reevaluated and all
employees can be granted salary adjustments and increase in benefits commensurate to
their actual duties and functions.
Limitation: Must be done in Good Faith.
EMPLOYMENT POLICIES and STIPULATIONS

Restrictive Covenant Clause


In determining whether the contract is reasonable or not, the following
factors should be considered:
a. whether the covenant protects a legitimate business interest of the
employer
b. whether the covenant creates an undue burden on the employee
c. whether the covenant is injurious to the public welfare
d. whether the time and territorial limitations contained in the covenant
are reasonable
e. whether restraint is reasonable from the standpoint of public policy

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The strong weight of authority holds that forfeitures for engaging in
subsequent competitive employment, included in pension retirement plans, are
valid, even though unrestricted in time or geography. The reasoning behind this
conclusion is that the forfeiture, unlike the restraint included in the employment
contract, is not a prohibition on the employees engaging in competitive work but
is merely a denial of the right to participate in the retirement plan if he does so
engage.
A restriction in the contract which does not preclude the employee from
engaging in competitive activity, but simply provides for the loss of rights or
privileges if he does so is not in restraint of trade.
A post retirement competitive employment restriction is designed to
protect the employer against competition by former employees who may retire
and obtain retirement or pension benefits and, at the same time, engage in
competitive employment.

No Spouse Employment Policy


Two types of employment policies involving spouses:
1. Policies banning only spouses from working in the same company (No spouse
employment policy)
2. Policies banning all immediate family members from working in the same
company (Anti-nepotism Employment Policy)
- What is important is the reasonable business necessity which must be proven
by the ER
Two Theories of employment discrimination:
1. disparate treatment analysis
2. disparate impact
- Unless the employer can prove that the reasonable demands of the business
require a distinction based on marital status and there is no better available or
acceptable policy which would better accomplish the business purpose, an
employer may not discriminate an employee based on the identity of the
employees spouse. This is known as the bona fide occupational qualification
exception (BFOQE)
- To justify BFOQE, the ER must prove two factors:
1. That the employment qualification is reasonably related to the essential
operation of the job involved
2. That there is a factual basis for believing that all or substantially persons
meeting the qualification would be unable to properly perform the duties of the
job.

5.

TERMINATION OF EMPLOYMENT

EMPLOYERS RIGHT TO DISCIPLINE

Right to Discipline.

The employers right to conduct the affairs of his business, according to its own
discretion and judgment, includes the prerogative to instill discipline in its employees and to

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impose penalties, including dismissal, upon erring employees. This is a management
prerogative where the free will of management to conduct its own affairs to achieve its
purpose takes form. The only criterion to guide the exercise of its management prerogative
is that the policies, rules and regulations on work-related activities of the employees must
always be fair and reasonable and the corresponding penalties, when prescribed,
commensurate to the offense involved and to the degree of the infraction. (St. Michaels
Institute vs. Santos, G. R. No. 145280, Dec. 4, 2001; Consolidated Food Corporation vs.
NRLC, 315 SCRA 129, 139 [1999]).
Instilling discipline among its employees is a basic management right and prerogative.
Management may lawfully impose reasonable penalties such as dismissal upon an
employee who transgresses the company rules and regulations. (Deles, Jr. vs. NLRC, G. R.
No. 121348, March 9, 2000).
The employer cannot be compelled to maintain in his employ the undeserving, if not
undesirable, employees. (Shoemart, Inc. vs. NLRC, G. R. No. 74229, Aug. 11, 1989).
-

Actual & constructive dismissal


Constructive Dismissal
- defined as a quitting because continued employment becomes impossible,
unreasonable, or unlikely, as, an offer involving a demotion in rank and a diminution in
pay.
- employers act amounting to dismissal but made to appear as if it were not. A
dismissal in disguise.
- when a clear discrimination, insensibility or disdain by an employer becomes
unbearable to the employee that in could foreclose any choice by him except to forego
his continued employment.

Grounds for termination of employment: just cause & authorized cause (Arts 282
& 283); dismissal for false or non-existent cause

Just Causes

Substantial requirements
ARTICLE 282. Termination by employer. An employer may terminate an
employment for any of the following just causes:
(a)
Serious misconduct or willful disobedience by the employee of the lawful
orders of his employer or representative in connection with his work;
(b)
Gross and habitual neglect by the employee of his duties;
(c)
Fraud or willful breach by the employee of the trust reposed in him by his
employer or duly authorized representative;
(d)
Commission of a crime or offense by the employee against the person of
his employer or any immediate member of his family or his duly
authorized representative; and
(e)
Other causes analogous to the foregoing.

a. serious misconduct

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In order to constitute a just cause for dismissal, however, the act complained of
must be related to the performance of the duties of the employee such as would
show him to be thereby unfit to continue working for the employer.

Requisites:
1. it must be serious and not minor
2. it must be work-related or relate to the performance of the employees
duties
3. it must show that the employee has become unfit to continue
working for the employer
b. willful disobedience
Refers to the willful disobedience by the employee of the lawful orders of his
employer or representative in connection with his work.
Requisites:
Orders, instructions or regulations of the employer must be:
1. lawful and reasonable
2. sufficiently known to the employee
3. in connection with the duties which the employee has been engaged to
discharge
c.

gross and habitual neglect by the employee of his duties


Gross negligence a want or absence of or failure to exercise even the slightest
care or diligence, or the entire absence of care as to amount to a reckless disregard
of the safety of the person or property. It evinces a thoughtless disregard of
consequences without exerting any effort to avoid them.
It means an absence of diligence which an ordinary man would use in his own
affairs.
Habitual refers to a repetition of similar acts. Habitual neglect, on the other hand,
implies repeated failure to perform ones duties for a period of time, depending upon
the circumstances.
i.e. Excessive absenteeism

d.

fraud

1.
2.
3.

It is generic term embracing all multifarious means which human ingenuity can
device, and which are resorted to by one individual to secure advantage over
another by false suggestions or by suppression of truth and includes all surprise,
trick, cunning, dissembling ad any unfair way by which another is cheated.
Any act or omission or concealment which involves a breach of legal duty, trust
and confidence justly reposed and is injurious to another.
Requisites:
committed against the employer or his representative
in connection with the employees work
position of the employee must be with trust and confidence

e.
willful breach by the employee of the trust reposed in him by his employer or duly
authorized representative:

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It is willful when it is done intentionally, knowingly, deliberately without justifiable
excuse as distinguished from an act done carelessly, thoughtlessly, heedlessly and
inadvertently.
Requisites:
1. breach must be work-related
2. position must be impressed with trust and confidence such as positions
having the custody of funds, money or other company property
Guidelines for the application of the doctrine of loss of confidence:
1. loss of confidence which should not be simulated;
2. it should not be used as subterfuge for causes which are improper,
illegal or unjustified;
3. it should not be arbitrarily asserted in the face of overwhelming
evidence to the contrary;
4. it must be genuine, not a mere afterthought to justify earlier action
taken in bad faith;
5. the employee involved holds a position of trust and confidence
Moreover, loss of confidence should ideally apply to positions of trust and
confidence, such as:
a. those involving employees occupying positions of trust and confidence like
managerial or supervisory employees, or
b. to those situation where the employee is routinely charged with the care and
custody of the employers money and property, ie. Cashiers, auditors, property
custodians
c. those who in the normal and routine exercise of their functions, regularly
handles significant amount of money or property, i.e. bank tellers
f.

commission of crime or offense by the employee against


- the person of his employer or
- his duly authorized representative or
- any immediate member of his family

o
Conviction is not necessary here, mere substantial evidence is required. No need for a
case. A mere commission of an offense against the employer will justify termination.
g.
other analogous causes
Other analogous causes e.g. abandonment, sexual harassment, gross inefficiency
or poor performance; drug use or abuse (RA 9165); attitude problem; conflict of interest,
lack of common sense
Abandonment
- analogous to gross and habitual neglect of duty. It requires deliberate,
unjustified refusal of the employee to resume his employment
Two elements must be satisfied:
failure to report for work or absence without any valid or justifiable reason
a clear intention to sever the ER-EE relationship- must be evinced by over acts

Sexual Harassment
- analogous to serious misconduct
- the gravamen of the offense in sexual harassment is not the violation of the
employees sexuality but the abuse of power by the employer. Any employee,

1.
2.

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male or female, may rightfully cry foul provided the claim is well substantiated.
Sexual harassment is an imposition of misplaced superiority.
Gross inefficiency
- Analogous to serious misconduct
- failure to observe prescribed standards of work to fulfill reasonable work
assignments
Conflict of interest or poor performance
- analogous to gross neglect for both involve specific act or omissions on the part
of the employees resulting in damage to the employer or his business. It refers to
failure to observe prescribed standards of work, or to fulfill reasonable standard
of work due to inefficiency.
- poor performance is equivalent to inefficiency and incompetence in the
performance of official duties. An unsatisfactory rating can be a just cause for
dismissal only if it amounts to gross and habitual neglect of duties.
Drug use or abuse
- analogous to serious misconduct
Republic Act 9165
ARTICLE V
Promotion of a National Drug-Free Workplace Program with the participation of
Private and Labor Sectors and the Department of Labor and Employment.
Section 47 Drug-Free Workplace it is deemed a policy of the State to
promote drug-free workplaces using a tripartite approach. With the assistance of
the Board, the Department of Labor and Employment (DOLE) shall develop,
promote and implement a national drug abuse prevention program in the
workplace to be adopted by private companies with ten (10) or more employees.
Such program shall include the mandatory drafting and adoption of company
policies against drug use in the workplace in close consultation and coordination
with the DOLE, Labor and Employer organizations, human resources
development managers and other such private sector organizations.
Section 48 Guidelines for the National Drug-Free Workplace Program The
board and the DOLE shall formulate the necessary guidelines for the
implementation of the national drug-free workplace program. The amount
necessary for the implementation of which shall be included in the Annual
General Appropriations Act.

Attitude problem
- analogous to breach of trust and confidence
- An employee who cannot get along with his co-employees is detrimental to the
company for he can upset and strain the working environment.

Lack of common sense

Disgraceful or immoral conduct


- analogous to serious misconduct
See also Manual of Regulations for Private School for Termination of Academic
Personnel

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Section 94. Causes of Terminating Employment- In addition to the just cause
enumerated in the LC, the employment of school personnel, including faculty, may
be terminated for any of the following causes:
a. Gross inefficiency and incompetence in the performance of his duties such as,
but not necessarily limited to, habitual and inexcusable absences and tardiness
from his classes, willful abandonment of employment or assignment;
b. Negligence in keeping school or student records, or tampering with or falsification
of the same;
c. Conviction of a crime or an attempt on, or a criminal act against the life of a
school official, personnel or student or upon the property or interest of the school;
d. notoriously undesirable;
e. disgraceful or immoral conduct;
f. the sale of tickets or the collection of any contribution in any form or for any
purpose or project whatsoever, whether voluntary or otherwise, from pupils,
students and school personnel, except membership fees of pupils and students
in the Red Cross, The Girl Scouts of the Philippines and the Boy Scouts of the
Philippines;
g. In the event of phasing out, closure or the cessation of the educational program
or course of the school itself; and
h. Other causes analogous to the foregoing as may be provided for in the
regulations prescribed by the Secretary or in the school rules or in a collective
bargaining agreement.
Section 95 Suspension. Suspension of any school may be preventive or punitive.
Preventive suspension not to exceed 30 days may be imposed on any school
personnel pending investigation of the charge against him if his continued presence
poses a serious and imminent danger to the school, property and to his life, the life
of his pupils, students o school personnel.
Punitive suspension is the imposition of the penalty on an erring school personnel
after conviction for an offense or a misconduct committed.
-

Requisites for valid termination; substantive and procedural


Requisites for valid termination
1.
the must be compliance with the substantial requirements: existence of
either just or authorized causes
2.
there must be compliance with the procedural requirements
Substantive (discussed above)

Procedural Requirements
Omnibus Rules
- In all cases of termination of employment, the following standards of due
process shall be substantially observed.

For termination of employment based on just causes as defined in Art 282 of the LC:
a. A written notice served on the employee specifying the ground or grounds for
termination, and giving to said employee reasonable opportunity within
which to explain his side.
Contents:
a. Ground relied upon
b. Facts which constitute the ground

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c. Giving the employee an opportunity to prepare and explain his side
d. Intention of the employer to dismiss
b.
A hearing or conference during which the employee concerned, with the assistance of
counsel if the employee so desires, is given opportunity to respond to the charge, present his
evidence or rebut the evidence presented against him; and
c.
A written notice termination served on the employee indicating the due consideration of
all circumstances, grounds have been established to justify termination.
In case of termination, the foregoing notice shall be served on the employees
last known address.
General Rule: There will be no payment of separation pay as to a valid
dismissal.
Authorized Causes
- requires one month prior written notice to DOLE and to EE; and generally
requires the payment of separation pay
Substantial Requirements:
ARTICLE 283.
Closure of establishment and reduction of personnel. The
employer may also terminate the employment of any employee due to the
installation of labor saving devices, redundancy, retrenchment to prevent losses
or the closing or cessation of operation of the establishment or undertaking
unless the closing is for the purpose of circumventing the provisions of this Title,
by serving a written notice on the workers and the Department of Labor and
Employment at least one (1) month before the intended date thereof. In case of
termination due to the installation of labor saving devices or redundancy, the
worker affected thereby shall be entitled to a separation pay equivalent to at least
his one (1) month pay or to at least one (1) month pay for every year of service,
whichever is higher. In case of retrenchment to prevent losses and in cases of
closures or cessation of operations of establishment or undertaking not due to
serious business losses or financial reverses, the separation pay shall be
equivalent to one (1) month pay or to at least one-half (1/2) month pay for every
year of service, whichever is higher. A fraction of at least six (6) months shall be
considered one (1) whole year.
a. installation of labor-saving devices
- The installation of labor-saving devices contemplates the installation of
machinery to effect economy and efficiency in this method of production.
b. redundancy
- Exists where the services of an employee are in excess of what would
reasonably be demanded but the actual requirements of the enterprise.
Factors:

Over-hiring of workers

Decreased volume of business

Dropping of a particular product line or service

Duplication of work

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Requisites for the implementation of a redundancy program:
1.
Written notice served on both the EE and the DOLE at least one month to
the intended date of retrenchment;
2.
Payment of separation pay equivalent to at least one month pay or at
least one month pay for every year of service, whichever is higher;
3.
Good faith in abolishing the redundant positions; and
4.
Fair and reasonable criteria in ascertaining what positions are to be
declared redundant and accordingly abolished.
c. retrenchment to prevent losses measure of last resort
- Retrenchment is an economic ground to reduce the number of employees. In
order to be justified, the termination of employment by reason of retrenchment
must be due to business losses or reverses which are serious, actual and real.

Criteria in laying-off workers:


Less preferred status (i.e. temporary workers)
Efficiency rating
Seniority

Justifying standards for retrenchment:


1.
Losses expected should be substantial and not merely de minimis in
extent.
- If the loss purportedly sought to be forestalled by retrenchment is clearly
shown to be unsubstantial and inconsequential in character, the bona fide
nature of the retrenchment would appear to be seriously in question.
2.
Substantial loss apprehended must be reasonably imminent, as such
imminence can be perceived objectively and in good faith by the
employer.
- There should in other words be a certain degree of urgency, for the
retrenchment, which is after all a drastic recourse with serious
consequences for the livelihood of the employees retires or otherwise
laid-off.
3.
It must be reasonably necessary and likely to effectively prevent the
expected losses.
4.
Alleged losses if already realized, and the expected imminent losses
sought to be forestalled, must be proved by sufficient and convincing
evidence.
d. the closing of operation of the establishment or undertaking unless the closing
is for the purpose of circumventing the provisions of this title
- may be either:
a.
for serious business losses or
b.
not due to serious business losses
- includes bona fide suspension of operations of business exceeding 6 months
- the significance of losses here is that, if the cessation of business was due to
serious business losses then the employer would not be liable to pay separation

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pay to the employee. However, it would be the other way around if the cessation
was not due to serious business losses.
Procedural Requirements
Omnibus Rules

For termination of employment as based on authorized causes defined in Art 283 of the
LC, the requirements of due process shall be deemed complied:
1.
with upon service of a written notice to the (show cause letter)
a. employee and (so that he can look for another job)
b. the appropriate Regional Office of the Department (so that it can check
the validity of the dismissal and for statistical purposes)
2.
at least 30 days before the effectivity of the termination
3.
specifying the ground or grounds of termination
Plus!
Separation pay- will be given 30 days after the service of notice of the
termination. This is so because it is only then that they are considered
separated from service.

In case of termination due to installation of labor-saving devices or


redundancy, the worker affected thereby shall be entitled to a separation pay
equivalent to at least one month pay or at least one month pay for every year of
service, whichever is higher.

In case of retrenchment to prevent losses and in cases of closure or


cessation of operations of establishment or undertaking not due to serious
business losses or financial reverses, the separation pay shall be equivalent
to one month pay or at least month pay for every year of service, whichever is
higher. A fraction of at least 6 months shall be considered one whole year.

In cases of closure or cessation of operations of establishment due


to serious business losses or financial reverses, there shall be no separation
pay.
If the termination is brought about by the completion of the contract or phase thereof,
no prior notice is requires.(project employee)
If the termination is brought about by the failure of an employee to meet the
standards of the employer in the case of probationary employment, it shall be
sufficient that a written notice is served the employee within reasonable time from
effective date of termination.
-

Preventive Suspension; when valid/ maximum period (DO No. 9 Series of 1997)
Preventive Suspension
The right to impose preventive suspension is a management prerogative
although it is not found in the LC. It is found in its implementing and regulations.
Valid suspension
If the employees continued employment poses a serious and imminent
threat to the life and or property of the employer or of his co-workers. (section 3,
rule XIV, book V)
It is not a form of penalty, it is more of a protective measure undertaken
by the employer. One cannot impose a penalty because the employee cannot be

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punished without due process. In practice, preventive suspension notice should
be in writing.
Maximum period
Preventive suspension shall not last longer than 30 days. The employer shall
thereafter (1) reinstate the worker in his former or in a substantially equivalent
position; or (2) the employer may extend the period of suspension, provided that
during the period of extension, he pays the wages and other benefits due to the
worker concerned. In such a case, the worker shall not be bound to reimburse the
amount paid to him during the extension if the employer decides, after completion of
the hearing, to dismiss the worker.

Nature of Preventive Supension


It is a protective measure undertaken by the employer to protect the interest of
his business
- to prevent further commission of another offense
- to prevent tampering of evidences to conceal a crime
- to prevent influence on the witnesses
Principle of Discretionary Justice
Whenever a penalty less punitive would suffice, whatever missteps may be
committed by labor ought not to be visited with a penalty so severe.
Factors that should be taken into consideration in determining a penalty short of
termination of employment:
1. seriousness of the offense
2. previous record of the employee
3. length of service
4. previous offenses
Principle of Discerning Compassion
Exception: Separation pay as a financial assistance shall be allowed as a
measure of social justice only in those instances where the employee validly dismissed
for causes other than serious misconduct or those reflecting on his moral character.
Rule on Proportionality
Accordingly, in determining the validity of dismissal as to a form of penalty, the
charges for which an employee is being administratively cited must be of such nature
that would merit the imposition of the said supreme penalty. Dismissal should not be
imposed if it is unduly harsh and grossly disproportionate to the charges. The rule on
proportionality- that the penalty imposed should be commensurate to the gravity of his
offense.

30

prior notice and hearing & 30 day prior notice rule


- The employer must furnish the worker with 2 written notices before
termination of employment can be legally effected.
1.
The notice to apprise the employee of the particular acts or omissions for
which his dismissal is sought.
2.
The notice informing the employee of the employers decision to dismiss
him.

En Consulta scutarius compilation labor relations 2009


Termination of fixed term employee- if the termination was brought about by
the completion of the contract or phase thereof, no prior notice is required.
Dismissal of probationary employees- if the termination is brought about by
the failure of an employee to meet the standards of the employer in the case of
probationary employment, it shall be sufficient that a written notice be served the
employee within a reasonable time from the effective date of termination.
-

Due process (Art 277 (b)) & Bill of Rights


Due Process
Article 277 (b)
Subject to the constitutional right of workers to security of tenure and
their right to be protected against dismissal except for a just and authorized
cause and without prejudice to the requirement of notice under Article 283 of this
Code, the employer shall furnish the worker whose employment is sought to be
terminated a written notice containing a statement of the causes for termination
and shall afford the latter ample opportunity to be heard and to defend himself
with the assistance of his representative if he so desires in accordance with
company rules and regulations promulgated pursuant to guidelines set by the
Department of Labor and Employment. Any decision taken by the employer shall
be without prejudice to the right of the workers to contest the validity or legality of
his dismissal by filing a complaint with the regional branch of the National Labor
Relations Commission. The burden of proving that the termination was for a valid
or authorized cause shall rest on the employer.
The Secretary of the Department of Labor and Employment may suspend
the effects of the termination pending resolution of the dispute in the event of a
prima facie finding by the appropriate official of the Department of Labor and
Employment before whom such dispute is pending that the termination may
cause a serious labor dispute or is in implementation of a mass layoff.
Bill of Rights
Section 1, Article III, 1987 Constitution
No person shall be deprived of life, liberty and property without due process of
law.

Effect, or Consequences of valid dismissal; award of financial assistance


General Rule: As a rule,When an employee is dismissed and the dismissal complies
with both substantive and procedural due process, separation pay is not given.
Exception: If one is dismissed based on a just cause, and such cause does not
constitute serious misconduct nor reflect the employees moral character, Separation pay
may be validly awarded to the employee concern. This is called the DISCERNING
COMPASSION DOCTRINE.
Compassionate Justice/Discerning Compassion
Relying on the constitutional mandate on protection of to
labor, courts and labor tribunals have dispensed what is known as
compassionate justice ,disregarding rigid rules and giving due weigh to all
equities of the cases.

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By calling upon this doctrine, separation pay may be
allowed as a measure of social justice and exceptional circumstances and as an
equitable concession. In PLDT vs NLRC, the SC laid down the rule that
separation shall be allowed as a measure of of social justice only in the instances
where EE is validly dismiss for causes other than serious misconduct or those
reflecting on his conduct.
The award of Separation Pay is called a FINANCIAL ASSISTANCE and is
awarded based on equity. It is a measure of social justice where the employee is
validly dismissed for causes not constituting serious misconduct or those reflecting
on his moral character.
In most cases, the Supreme Court awarded financial assistance equivalent to
one-half month pay for every year of service.

AMOUNT OF SEPARATION PAY


JUST CAUSE - Separation pay, in lieu of reinstatement, shall include the amount
equivalent at least to one (1) month salary or to one (1) month salary for every year
of service, whichever is higher, a fraction of at least six (6) months being considered
as one (1) whole year including regular allowances. If not regular, not included.

AUTHORIZED CAUSE Separation pay is as follows:

In case of termination due to the installation of labor-saving


devices or redundancy, the worker affected thereby shall be entitled to
a separation pay equivalent to at least one (1) month pay or to at least
one (1) month pay for every year of service, whichever is higher.

In case of retrenchment to prevent losses and in cases of


closures or cessation of operations of establishment or
undertaking not due to serious business losses or financial
reverses, the separation pay shall be equivalent to one (1) month pay or
at least one-half (1/2) month pay for every year of service, whichever is
higher. A fraction of at least six (6) months shall be considered one (1)
whole year.

In cases of closures or cessation of operations of


establishment or undertaking due to serious business losses or
financial reverses, there shall be no separation pay.

Four contexts of separation pay:


1. As employers obligation
- in cases of legal termination due to authorized causes under Art
283 and 284
2. As financial assistance
- as an act of social justice, even in cases of legal dismissal under Art
282. Pursuant to the principle of discerning compassion.
3. In lieu of reinstatement of illegal dismissal cases where the employee is ordered
reinstated but reinstatement is no longer feasible.
4. As an employment benefits granted under CBA or company policy.

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- this does not arise from legal or illegal dismissal but voluntary mode of leaving
ones employment such as resignation.
-

Effect, or Consequences of illegal dismissal (Art 279)


Article 279 .In cases of regular employment, the employer shall not terminate the
services of an employee except for a just cause or when authorized by this
Title. An employee who is unjustly dismissed from work shall be entitled to
reinstatement without loss of seniority rights and other privileges and to his
full backwages, inclusive of allowances, and to his other benefits to their
monetary equivalent computed from the time his compensation was withheld
from him up to the time of his actual reinstatement.

Reliefs of an illegally dismissed employee: reinstatement, backwages, & damages


(Title XVIII NCC)
1.

Reinstatement
-if no longer feasible due to cessation of the office or business or to
strained relations, then separation pay in lieu thereof.
- When excusable:
a.
Strained relations
- must be so compelling and so serious in character that
the continued employment of the EE is so obnoxious to the
person/ business of the ER and that the continuation of such
employment has become inconsistent with peace an tranquility
which is an ideal atmosphere in every workplace.
b.
when reinstatement has become impossible because of a
supervening event
- Example: abolition in good faith the position the worker
once occupied, absence of equivalent position
c.
Closure of the establishment
d.
If the employee is already beyond retirement age
2.
Backwages
- from the time his compensation was withheld from him at the time of the
dismissal to his actual reinstatement.

3.

33

- How computed:
a. if dismissal prior to effectivity of RA 6715 (March 21, 1989)
- Backwages up to 3 years without deduction or qualification
b. if dismissal on or after March 21, 1989
- Full backwages, inclusive of allowances and other benefits or
their monetary equivalent from the time their actual compensation was withheld
from them up to the time of their actual reinstatement.
Damages
- moral and/or exemplary
a.
Moral Damages
ARTICLE 2220.
Willful injury to property may be a legal
ground for awarding moral damages if the court should find
that, under the circumstances, such damages are justly

En Consulta scutarius compilation labor relations 2009

4.

due. The same rule applies to breaches of contract where


the defendant acted fraudulently or in bad faith.
b.
Exemplary Damages
ARTICLE 2229.
Exemplary or corrective damages are
imposed, by way of example or correction for the public
good, in addition to the moral, temperate, liquidated or
compensatory damages.
ARTICLE 2232.
In contracts and quasi-contracts, the court
may award exemplary damages if the defendant acted in a
wanton, fraudulent, reckless, oppressive, or malevolent
manner.
ARTICLE 2233.
Exemplary damages cannot be recovered as
a matter of right; the court will decide whether or not they
should be adjudicated.
Attorneys Fees
ARTICLE 2208.
In the absence of stipulation, attorney's fees
and expenses of litigation, other than judicial costs, cannot
be recovered, except:
(1)
When exemplary damages are awarded;
(2)
When the defendant's act or omission has
compelled the plaintiff to litigate with third persons
or to incur expenses to protect his interest;
Note:
In the 2004 landmark labor case of Agabon et al., (G.R.No. 158693,
November 17, 2004). In this case, the Supreme Court revisited Serrano and reexamined the lack of statutory basis in the Labor Code for declaring as
"ineffectual or defective" a dismissal of an employee for a valid or authorized
cause but without complying with the employee's statutory right to due process.
Following the 1989 vintage case of Wenphil (170 SCRA 69 [1989]), the present
rule now as laid down in Agabon et al. is to hold the dismissal as valid (no longer
defective or ineffectual) but with the qualification, that the employer will have to
pay the "validly" dismissed employee the sum of P30,000 as nominal damages
for non-observance by the employer of the employee's right to due process. In
the mind of the High Court, P30,000 was considered as a"stiffer" sanction than
the P1,000 which it originally awarded in Wenphil. Being a landmark decision by
the Supreme Court en banc, Agabon et al., is now the leading authority used by
many human resource practitioners and management lawyers, citing it with
distinction to overturn previous decisions of the High Court based on Serrano
(Caingat vs. NLRC, G.R. No. 154308, March 10, 2005; Chua vs. NLRC, G.R. No.
146780, March 11, 2005; Glaxo Wellcome Phils., vs. Nagkaisang Empleyado ng
Wellcome,
G.R.
No.
149349,
March
11,
2005).
Notably however, as what the Supreme Court said in reversing Serrano, social
justice is not based on rigid formulas set in stone. A few months ago after
enunciating Agabon et al., the cash equivalent, so to speak, of the "belated due
process" rule was further clarified by the Supreme Court in the more recent en
banc case of Jaka Food Processing vs. Pacot et al., (G.R. No. 151378, March
28, 2005). Here, the Court found the need to make a material distinction as
regards the gravity of the sanction which an employer should be meted in case it
violates the employee's right to due process. Thus in this recent case, the cash

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equivalent may be "tempered" or made "stiffer", depending on the cause for
termination. In other words, the P30,000 indemnity in Agabon, et al., is not a
uniform amount of indemnity to be applied in all cases of termination for cause
when there is non-compliance with due process. Clearly then, the Court laid
down the following parameters: (1) if the dismissal is based on just cause under
Article 282 but the employer failed to comply with the notice requirement, the
sanction to be imposed upon him should be tempered because the dismissal
was, in effect initiated by an act imputable to the employee; and (2) if the
dismissal is based on authorized cause under Article 283 but the employer failed
to comply with the notice requirement, the sanction should be stiffer because the
dismissal process was initiated by the employer's exercise of his management
prerogative. In Jaka Food Processing Corp., a P50,000 award was considered by
the Supreme Court as a "stiffer" sanction.
-

Corporate officers; definition & liability


Corporate Officers
There are specifically three (3) officers which a corporation must have
under the statute: president, secretary, and treasurer. However, the law does
not limit corporate officers to these three. Section 25 of the Corporation Code
gives corporations the widest latitude to provide for such other offices, as they
may deem necessary. The by-laws may and usually do provide for such other
officers, e.g., vice president, cashier, auditor, and general manager.
Consequently, the Supreme Court has held that one who is included in the bylaws of a corporation in its roster of corporate officers is an officer of said
corporation and not a mere employee.
Persons Liable
Art. 289.
Who are liable when committed by other than natural person. - If the
offense is committed by a corporation, trust, firm, partnership, association or any
other entity, the penalty shall be imposed upon the guilty officer or officers of
such corporation, trust, firm, partnership, association or entity.
BP 68 (Corporation Code of the Philippines)
Sec. 31.
Liability of directors, trustees or officers. - Directors or trustees who
willfully and knowingly vote for or assent to patently unlawful acts of the
corporation or who are guilty of gross negligence or bad faith in directing the
affairs of the corporation or acquire any personal or pecuniary interest in conflict
with their duty as such directors or trustees shall be liable jointly and severally for
all damages resulting therefrom suffered by the corporation, its stockholders or
members and other persons.
As a general rule, officers of a corporation are not personally liable for
their official acts unless it is shown that they have exceeded their authority.
However, the legal fiction that a corporation has a personality separate and
distinct from stockholders and members may be disregarded as follows: "This
finding does not ignore the legal fiction that a corporation has a personality
separate and distinct from its stockholders and members, for, as this Court had
held "where the incorporators and directors belong to a single family, the
corporation and its members can be considered as one in order to avoid its being
used as an instrument to commit injustice," or to further an end subversive of
justice. In the case of Claparols vs. CIR involving almost similar facts as in this

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case, it was also held that the shield of corporate fiction should be pierced when
it is deliberately and maliciously designed to evade financial obligations to
employees.(Pabalan v. NLRC, GR No. 89879 April 20, 1990)
Unless they have exceeded their authority, corporate officers are, as a
general rule, not personally liable for their official acts, because a corporation, by
legal fiction, has a personality separate and distinct from its officers, stockholders
and members. However, this fictional veil may be pierced whenever the corporate
personality is used as a means of perpetuating a fraud or an illegal act, evading
an existing obligation, or confusing a legitimate issue. In cases of illegal
dismissal, corporate directors and officers are solidarily liable with the
corporation, where terminations of employment are done with malice or in bad
faith. (Bogo-Medellin Sugarcane Planters Association v. NLRC, G.R. No.
97846 September 25, 1998)

6.

SUSPENSION OF BUSINESS OPERATIONS

BASIS
Article 286: Employment is deemed not terminated when there is:
1. Bona-fide suspension by the employer of the operation of his business or undertaking
for a period not exceeding six (6) months;
2. Fulfillment by the employee of a military duty; or
3. Fulfillment by the employee of a civic duty.

Sec .12, Rule, Book VI:

The employer-employee relationship shall be deemed suspended in case of suspension


of operation of the business or undertaking of the employer for a period not exceeding six
(6) months, Unless the suspension is for the purpose of defeating the rights of the
employees under the Code, and in case of mandatory fulfillment by the employee of a
military or civic duty.
The payment of wages of the employee as well as the grant of other benefits and
privileges while he is on a military or civic duty shall be subject to special laws and decrees
and to the applicable individual or collective bargaining agreement and voluntary employer
practice or policy.
.
Requisites of a valid suspension of operations:
1. It must be for a period not exceeding six months
2. The ER shall reinstate the EE to his former position without loss of seniority rights, if he indicates his desire to resume his work
not later than one month from the resumption of operations of his EE.

stating:

In case of suspension of operations, the ER must serve a written notice of suspension individually addressed to the EEs affected
a.
b.
c.

The reason why the ER is suspending operations


The date that the ER expects to resume operations
That the EEs must indicate, within one month from resumption of operations, their desire to resume working
with the ER.

Suspension must not exceed 6 months, otherwise, it shall be deemed as a form of constructive dismissal and the employer shall be
under the obligation to give its workers their separation pay.

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EFFECT ON EMPLOYMENT STATUS
Compensation of Employees during the Six-month Suspension
Employees are not entitled to their wages and benefits during the 6-month period. The
reason is, within the said period, the employer-employee relationship is deemed
suspended. The employment relationship being suspended, both the employer and the
employees cease to be bound, at least temporarily, by the basic terms and conditions of
their employment contract - the employer regarding his obligation to provide salary to his
workers; and on the part of the workers, to provide their services to the former.
Effect of Suspension of Work Exceeding 6 Months
In the 2005 case of Mayon Hotel & Restaurant vs. Adana, [G. R. No. 157634, May 16,
2005], the High Court declared that Article 286 is clear - there is termination of
employment when an otherwise bona fide suspension of work exceeds six (6) months.
Moreover, even assuming arguendo that the cessation of employment on April 1997 was
merely temporary when hotel operations were suspended due to the termination of the
lease of the old premises, it became dismissal by operation of law when petitioners
failed to reinstate respondents after the lapse of six (6) months, pursuant to Article 286.
And even assuming that the closure was due to a reason beyond the control of the
employer, it still has to accord its employees some relief in the form of severance pay.
Effect of Employment of the Employee in Other Establishments during 6-Month Period
In the 2005 case of JPL Marketing Promotions vs. CA, [G. R. No. 151966, July 8, 2005],
it was established that private respondent-employees sought employment from other
establishments even before the expiration of the six (6)-month period provided by law.
They admitted that all three of them applied for and were employed by another
establishment after they received the notice from JPL. Consequently, it was held that
petitioner JPL cannot be said to have terminated their employment for it was they
themselves who severed their relations with JPL. Thus, they are not entitled to
separation pay, even on the ground of compassionate justice. Clearly, the principle in the
law which grants separation pay applies only when the employee is dismissed by the
employer, which is not the case in this instance. In seeking and obtaining employment
elsewhere, private respondents effectively terminated their employment with JPL.
Fulfillment of Military or Civic Duty
IRR Book VI Rule 1
SECTION 12.
Suspension of relationship. The employer-employee relationship shall be deemed suspended in case of
suspension of operation of the business or undertaking of the employer for a period not exceeding six (6) months, unless the
suspension is for the purpose of defeating the rights of the employees under the Code, and in case of mandatory fulfillment by the
employee of a military or civic duty. The payment of wages of the employee as well as the grant of other benefits and privileges
while he is on a military or civic duty shall be subject to special laws and decrees and to the applicable individual or collective
bargaining agreement and voluntary employer practice or policy.

ANALOGOUS SITUATION
There is no law on temporary retrenchment or lay-off, Article 286 applies only by
analogy.
Suspension of operation may involve only a section or department of the company and
not necessarily the entire operations.
The burden to prove bona-fide suspension of operation is on the employer.

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DISTINGUISH from STOPPAGE of WORK OR SUSPENSION of OPERATION
Art. 128(c)
The Secretary of Labor and Employment may likewise order stoppage of work or
suspension of operations of any unit or department of an establishment when there is noncompliance with the law or implementing rules and regulations poses grave and imminent
danger to the health and safety of workers in the workplace.
Within twenty-four hours, a hearing shall be conducted to determine whether an order for
the stoppage of work or suspension of operations shall be lifted or not.
In case the violation is attributable to the fault of the employer, he shall pay the
employees concerned their salaries or wages during the period of such stoppage of work or
suspension of operation.
IRR Book III, Rule X-A (DO 07-A, Series of 1995)
Section 3. Enforcement of Occupational Safety and Health Standardsa. The Secretary of the Regional Director may, upon recommendation of the labor and employment officer, order stoppage of work
or suspension of operations of any unit or department of an establishment when non-compliance of occupational safety and health
standards or regulations poses grave and imminent danger to the workers.
b. Within 24 hours from the issuance of stoppage or suspension of operations, the secretary or the regional director shall cause the
conduct of a hearing to determine whether the order for the stoppage of work or suspension of business operations shall be lifted or
not. The proceeding shall be terminated within 72 hours from the receipt of a copy of the order by the employer. In case the violation
is attributable to the fault of the employer, he shall pay the employees affected their salaries and wage-related benefits during the
period of such stoppage of work or suspension of operations.

TEMPORARY OR PERIODIC SHUTDOWN and TEMPORARY CESSATION OF WORK


Section 7, Rule IV, Book III
Temporary or periodic shutdown and temporary cessation of work.
(a) In cases of temporary or periodic shutdown and temporary cessation of work of an
establishment, as when a yearly inventory or when the repair or cleaning of
machineries and equipment is undertaken, the regular holidays falling within the
period shall be compensated in accordance with this Rule.
(b) The regular holiday during the cessation of operation of an enterprise due to
business reverses as authorized by the Secretary of Labor and Employment may not
be paid by the employer.
7.

DISEASE AS GROUND FOR TERMINATION

- Requirements to terminate employment (Art 284 & Omnibus Rules)


ARTICLE 284.
Disease as ground for termination. An employer may
terminate the services of an employee who has been found to be suffering from
any disease and whose continued employment is prohibited by law or is
prejudicial to his health as well as to the health of his co-employees: Provided,
That he is paid separation pay equivalent to at least one (1) month salary or to
one-half month salary for every year of service, whichever is greater, a fraction of
at least six (6) months being considered as one (1) whole year.
IRR Book VI Rule I
SECTION 8. Disease as a ground for dismissal. Where the employee suffers from
a disease and his continued employment is prohibited by law or prejudicial to his

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health or to the health of his co-employees, the employer shall not terminate his
employment unless there is a certification by competent public health authority
that the disease is of such nature of at such a stage that it cannot be cured within
a period of six (6) months even with proper medical treatment. If the disease or
ailment can be cured within the period, the employee shall not terminate the
employee but shall ask the employee to take a leave of absence. The employer
shall reinstate such employee to his former position immediately upon the
restoration of his normal health.
Requisites:
1.
The employee is found to be suffering from any disease and whose continued
employment is prohibited by law or is prejudicial to his health as well as the
health of his co-employees.
2.
There is a certification by a competent public health authority that the disease is
of such a nature or at such stage that it cannot be cured within a period of 6
months.
3.
EE is paid separation pay equivalent to at least 1 month salary or month salary
for every year of service, whichever is higher.
The certification is to be secured by the employer.

-see also Phil. Aids Prevention & Control Act of 1988 (RA 8504 & DO no. 53-03, Series of
2003)
RA 8504 Phil Aids Prevention & Control Act of 1988
SECTION 6. HIV/AIDS Education in the Workplace. All government and private
employees, workers, managers, and supervisors, including members of the Armed
Forces of the Philippines (AFP) and the Philippine National Police (PNP), shall be
provided with the standardized basic information and instruction on HIV/AIDS which
shall include topics on confidentiality in the workplace and attitude towards infected
employees and workers. In collaboration with the Department of Health (DOH), the
Secretary of the Department of Labor and Employment (DOLE) shall oversee the antiHIV/AIDS campaign in all private companies while the Armed Forces Chief of Staff and
the Director General of the PNP shall oversee the implementation of this section.
xxx
SECTION 35. Discrimination in the Workplace. Discrimination in any form from
pre-employment to post-employment, including hiring, promotion or assignment, based
on the actual, perceived or suspected HIV status of an individual is prohibited.
Termination from work on the sole basis of actual, perceived or suspected HIV status is
deemed unlawful.
DEPARTMENT ORDER NO. 53-03
Series of 2003
GUIDELINES FOR THE IMPLEMENTATION OF A DRUG-FREE WORKPLACE
POLICIES AND PROGRAMS FOR THE PRIVATE SECTOR
In accordance with Article V of Republic Act No. 9165, otherwise known as the
Comprehensive Dangerous Drugs Act of 2002, and its Implementing Rules and
Regulations and in consultation with the Tripartite Task Force created under DOLE
Department Order No. 37-03, s 2002 (Tripartite Task Force), the following guidelines are
hereby issued to assist employers and employees in the formulation of company policies
and programs to achieve a drug-free workplace.

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COVERAGE
1. These guidelines shall apply to all establishments in the private sector, including their
contractors and concessionaires.
FORMULATION OF DRUG-FREE WORKPLACE
POLICIES AND PROGRAMS
1. It shall be mandatory for all private establishments employing ten (10) or more
workers to formulate and implement drug abuse prevention and control programs in the
workplace, including the formulation and adoption of company policies against
dangerous drug use. Establishments with less than ten (10) workers are also
encouraged to formulate and adopt drug-free policies and programs in the workplace.
2. The workplace policies and programs shall be prepared jointly by management and
labor representatives and shall be made an integral part of the company's occupational
safety and health and related workplace programs.
3. In organized establishments, the workplace policies and programs shall be included
as part of the Collective Bargaining Agreements.
4. Assistance in the formulation and implementation of a Drug-Free Workplace Policies
and Programs may be sought from the Tripartite Task Force (see Annex 1), through the
Occupational Safety and Health Center. The Regional Offices of the DOLE shall serve
as focal center in their respective areas of jurisdiction in providing information on RA No.
9165 and on the prevention and control of drug abuse in the workplace.
COMPONENTS OF A DRUG-FREE WORKPLACE POLICIES AND
PROGRAMS
1. Workplace policies and programs on drug abuse prevention and control to be adopted
by companies shall include, among others, the following components:
a) Advocacy, Education and Training
i. Employers shall be responsible for increasing awareness and education of their
officers and employees on the adverse effects of dangerous drugs as well as the
monitoring of employees susceptible to drug abuse. Topics which may be included in the
orientation-education program shall include, among others, the following:
Salient Features of RA 9165 (the Act) and its Implementing Rules and Regulations
(IRR)
The Company policies and programs on drug-free workplace
Adverse effects of abuse and/or misuse of dangerous drugs on the person, workplace,
family and the community
Preventive measures against drug abuse
Steps to take when intervention is needed, as well as the services available for
treatment and rehabilitation.
ii. Employers are enjoined to display a billboard or streamer in conspicuous places in the
workplace with standard message like "THIS IS A DRUG-FREE WORKPLACE; LET'S
KEEP IT THIS WAY!" or such other messages of similar import.

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iii. Curicula developed by the Task Force shall be used as widely as possible for
awareness raising and training. May be accessed through the OSHC website
(www.oshc.dole.gov.ph)
iv. Training on prevention, clinical assessment, and counseling of workers and other
related activities shall be given to occupational safety and health personnel, the human
resources manager and the employers and workers representatives. These trained
personnel shall form part of an Assessment Team which shall address all aspects of
drug abuse prevention, treatment and rehabilitation.
v. In the absence of such capability, particularly in small establishments, DOLE shall, to
the extent possible, provide relevant information on experts and services in their
localities.
vi. In the context of their Corporate Social Responsibility Programs, employers are
encouraged to extend drug abuse prevention advocacy and training to their workers'
families and their respective communities.
b) Drug Testing Program for Officers and Employees|
i. Employers shall require their officials and employees to undergo a random drug test
(as defined in Annex 2) in accordance with the company's work rules and regulations for
purposes of reducing the risk in the workplace. Strict confidentiality shall be observed
with regard to screening and the screening results.
ii. Drug testing for teaching and non-teaching staff in private schools shall be in
accordance with the guidelines provided by DepED, CHED and TESDA.
iii. Drug testing shall conform with the procedures as prescribed by the Department of
Health (DOH) (www.doh.gov.ph). Only drug testing centers accredited by the DOH shall
be utilized. A list of the accredited centers may be accessed through the OSHC website
(www.oshc.dole.gov.ph).
iv. Drug testing shall consist of both the screening test and the confirmatory test; the
latter to be carried out should the screening test turn positive. The employee concerned
must be informed of the test results whether positive or negative.
v. Where the confirmatory test turns positive, the company's Assessment Team shall
evaluate the results and determine the level of care and administrative interventions that
can be extended to the concerned employee.
vi. A drug test is valid for one year; however, additional drug testing may be required for
just cause as in any of the following cases:
After workplace-related accidents, including near miss;
Following treatment and rehabilitation to establish fitness for returning to
work/resumption of job
In the light of clinical findings and/or upon recommendation of the assessment team.
vii. All cost of drug testing shall be borne by the employer.

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c) Treatment, Rehabilitation and Referral
i. The drug prevention and control program shall include treatment, rehabilitation and
referral procedure to be provided by the company staff or by an external provider. It shall
also include a provision for employee assistance and counseling programs for
emotionally-stressed employees.
ii. The Assessment Team shall determine whether or not an officer or employee found
positive for drugs would need referral for treatment and/or rehabilitation in a DOH
accredited center.
iii. This option is given only to officers and employees who are diagnosed with drug
dependence for the first time, or who turn to the Assessment Team for assistance, or
who would benefit from the treatment and rehabilitation.
iv. Following rehabilitation, the Assessment Team, in consultation with the head of the
rehabilitation center, shall evaluate the status of the drug dependent employee and
recommend to the employer the resumption of the employee's job if he/she poses no
serious danger to his/her co-employees and/or the workplace.
v. Repeated drug use even after ample opportunity for treatment and rehabilitation shall
be dealt with the corresponding penalties under the Act and its IRR.
vi. An updated list of drug treatment and rehabilitation centers accredited by the DOH
shall be disseminated through the OSHC website (www.oshc.dole.gov.ph)
d) Monitoring and Evaluation
i. The implementation of the drug-free workplace policies and programs shall be
monitored and evaluated periodically by the employer to ensure that the goal of a drugfree workplace is met. The Health and Safety Committee or other similar Committee may
be tasked for this purpose.
ROLES, RIGHTS AND RESPONSIBILITIES OF EMPLOYERS
AND EMPLOYEES
1. The employer shall ensure that the workplace policies and programs on the
prevention and control of dangerous drugs, including drug testing, shall be disseminated
to all officers and employees. The employer shall obtain a written acknowledgement
from the employees that the policy has been read and understood by them.
2. The employer shall maintain the confidentiality of all information relating to drug tests
or to the identification of drug users in the workplace; exceptions may be made only
where required by law, in case of overriding public health and safety concerns; or where
such exceptions have been authorized in writing by the person concerned.
3. Labor unions, federations, workers organizations and associations are enjoined to
take an active role in educating and training their members on drug abuse prevention
and control. They shall, in cooperation with their respective private sector partners,
develop and implement joint continuing programs and information campaigns, including
the conduct of capability-building programs, peer counseling and values education with
the end in view promoting a positive lifestyles and a drug-free workplace.
4. All officers and employees shall enjoy the right to due process, absence of which will
render the referral procedure ineffective.

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ENFORCEMENT
1. The Labor Inspectorate of the DOLE Regional Offices shall be responsible for
monitoring compliance of establishments with the provisions of Article V of the Act and
its IRR and this Department Order.
2. The dissemination of information on pertinent provisions of RA 9165 and the IRR shall
be included in the advisory visits of the Labor Inspectorate.
3. The DOLE may, where deemed necessary and appropriate, delegate the monitoring
of compliance of establishments with the provisions of Article V of the Act to Local
Government Units thru a Memorandum of Agreement.
CONSEQUENCES OF POLICY VIOLATIONS
1. Any officer or employee who uses, possesses, distributes, sells or attempts to sell,
tolerates, or transfers dangerous drugs or otherwise commits other unlawful acts as
defined under Article II of RA 9165 and its Implementing Rules and Regulations shall be
subject to the pertinent provisions of the said Act.
2. Any officer or employee found positive for use of dangerous drugs shall be dealt with
administratively in accordance with the provisions of Article 282 of Book VI of the Labor
Code and under RA 9165.
EFFECTIVITY
1. Al concerned shall comply with all the provisions of this Department Order within six
months from its publication in a newspaper of general circulation.
PATRICIA A. STO. TOMAS (sgd.)
Secretary
14 August 2003
-SARS (DO No. 47-03)
GUIDELINES ON SARS PREVENTION AND CONTROL AT THE WORKPLACE
To prevent the spread of Severe Acute Respiratory Syndrome (SARS) at the workplace, the following
guidelines are hereby issued to all concerned:
COVERAGE
This Guidelines shall apply to all employers and workers in the private sector.
WORKPLACE HEALTH
As a precautionary measure and to prevent a possible outbreak of SARS at the workplace, all
employers are enjoined to:
1.
clean the work area with household disinfectant and make sure that water, soap and
disinfectants are available in all washrooms and toilets;
2.
stress good hygiene practices among workers like washing their hands frequently, covering their
nose and mouth when sneezing and coughing, spitting at proper places; and
3.
monitor the health of workers particularly those with fever and those who have traveled to
countries affected with the SARS virus.

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Workplace with Imminent Danger Situation


In workplaces where workers are evidently at risk of infection as in health-care services and other
frontline services, the employer shall take immediate protective measures to avoid, correct or remove
such imminent danger (based on Rule 1010, OSHS). A screening program on SARS must be installed
in accordance with the guidelines issued by the Department of Health. Screening or triage shall follow a
procedure using a checklist that may include but not limited to questions related to:
1.

recent travel to a country or place on WHO list for local SARS transmission;

2.

recent contact with a SARS case; and

3.
affliction by such symptoms as fever, cough, difficulty of breathing or shortness of breath and
diarrhea. (See Annex 1)
Workers in said workplaces must take extra precautionary measures under the guidance of the
Occupational Safety and Health Center in coordination with the Department of Health. This includes, in
particular, strict hygiene and the use of Personal Protective Equipment (PPEs). Employers shall see to it
that these PPEs (e.g. appropriate respirators such as N95, gowns, gloves) are properly worn by the
workers while at work and disposed of accordingly after use.
In the event that a worker is suspected as having SARS, the employer shall:
1.

Provide the worker with a face mask to prevent the risk of spreading the infection;

2.
Immediately isolate the worker in a separate, well ventilated room in the workplace, away from
other workers;
3.
Arrange for the worker to be transported to San Lazaro Hospital (SLH) or the Research Institute
on Tropical Medicine (RITM) or the nearest SARS designated hospitals for assessment. (See Annex 2)
Transport will be provided by the local government unit or by the referring company or SLH/RITM. The
family or next of kin shall be notified;
4.
Provide the Department of Health-NEC, the names and details of the SARS case and contacts.
Copy shall be furnished to the OSHC.
5.
Workers who have been exposed to a SARS case should be checked for body temperature and
other signs and symptoms not limited to fever, cough and difficulty of breathing. These contacts should
be advised to got on home quarantine, and
6.
Decontaminate work area with appropriated disinfectant (e.g. chlorine bleaching solution and
1:100 phenol based disinfectant).
LEAVE OF ABSENCE/ENTITLEMENTS
Leave of Absence
For workers who are requested by their employers to stay at home or who are served quarantine order
for reasons related to SARS, the following arrangements may be considered during the period of
absence:
1.
Workers leave of absence may be charged to their annual sick/vacation leave credits under the
company policy or practice or as stipulated in their collective bargaining agreement. If the workers

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leave credits have been used up, employers could consider granting leave of absence without pay.
However employers are urged to exercise flexibility and compassion in granting additional leave with
pay, if possible, considering that the worker may be facing financial hardship.
2.
By mutual agreement, employers and workers/unions could also agree on other arrangements
for the employees leave of absence.
For workers who need to take leave to take care of their children or parents or choose to stay away
from work on their own accord, employers are encouraged to adopt a flexible and enlightened approach
in granting time-off, implementing flexible work arrangements as well as allowing workers to take their
annual leave. For workers who have used up their annual vacation/sick leave credits, employers could
consider granting them leave of absence without pay.
Hospitalization Benefits
The Research Institute of Tropical Medicine (RITM) and the San Lazaro Hospital (SLH) shall shoulder
all hospitalization expenses of SARS cases confined in these hospitals.
In addition, the Philippine Health Insurance Corporation (PhilHealth) shall provide P100,000.00 medical
insurance package over and above the usual health insurance benefit for public and private health
workers infected with SARS. Other PhilHealth members and their dependents infected with SARS will
also be covered by hospital benefits amounting to P50,000.00.
Social Security / Employees Compensation Benefits
A worker who contracts SARS in the performance of his/her duty is entitled to sickness benefits under
the Social Security System and employees compensation benefits under PD 626.
ASSISTANCE TO BE PROVIDED BY DOLE AGENCIES
The Department of Labor and Employment, through the Occupational Safety and Health Center
(OSHC), the Bureau of Working Conditions and the Regional Offices, shall provide the following, in
collaboration with the Department of Health when necessary:
1.
information on SARS and workplace concerns including issues related to OSH standards and
General Labor Standards.
2.
technical assistance in the form of risk assessment, use of protective equipment including a
respirator program, workplace improvements to reduce the likelihood of droplet infection and
contamination by materials possibly infected by the virus,
3.

capability-building of SARS focal persons.

The Philippine Overseas Employment Administration (POEA), the Overseas Workers Welfare
Administration (OWWA) and the International Labor Affairs Service (ILAS) shall provide information on
SARS prevention and control to Overseas Filipino Workers (OFWs) through their pre-departure
orientation seminars, and through the labor attaches, welfare officers and the Filipino Associations

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overseas. The OWWA shall provide Vitamin C and appropriate masks to outgoing OFWs.
EFFECTIVITY
This Guidelines shall take effect immediately.
(Sgd) PATRICIA A. STO. TOMAS
Secretary
17 June 2003

-disability under Magna Carta for Disabled Person (RA 7277)


Disabled persons are those suffering from restriction or different abilities, as a result of a
mental, physical or sensory impairment, to perform an activity in the manner or within the range
considered normal for a human being.
Disability shall mean 1) a physical or mental impairment that substantially limits one or
more psychological, physiological or anatomical function of an individual or activities of such
individual; 2) a record of such an impairment; or 3) being regarded as having such an
impairment;
Handicap refers to a disadvantage for a given individual, resulting from an impairment or
a disability, that limits or prevents the function or activity, that is considered normal given the age
and sex of the individual;
TITLE TWO
Rights and Privileges of Disabled Persons
CHAPTER 1
Employment
SECTION 5. Equal Opportunity for Employment. No disable person shall be denied
access to opportunities for suitable employment. A qualified disabled employee shall be
subject to the same terms and conditions of employment and the same compensation,
privileges, benefits, fringe benefits, incentives or allowances as a qualified able bodied
person.
Five percent (5%) of all casual emergency and contractual positions in the
Departments of Social Welfare and Development; Health; Education, Culture and
Sports; and other government agencies, offices or corporations engaged in social
development shall be reserved for disabled persons. cd i
SECTION 6. Sheltered Employment If suitable employment for disabled persons cannot
be found through open employment as provided in the immediately preceding Section,
the State shall endeavor to provide it by means of sheltered employment. In the
placement of disabled persons in sheltered employment, it shall accord due regard to

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the individual qualities, vocational goals and inclinations to ensure a good working
atmosphere and efficient production.
SECTION 7. Apprenticeship. Subject to the provisions of the Labor Code as amended,
disabled persons shall be eligible as apprentices or learners: Provided, That their
handicap is not much as to effectively impede the performance of job operations in the
particular occupation for which they are hired: Provided, further, That after the lapse of
the period of apprenticeship, if found satisfactory in the job performance, they shall be
eligible for employment.
SECTION 8. Incentives for Employers. a) To encourage the active participation of the
private sector in promoting the welfare of disabled persons and to ensure gainful
employment for qualified disabled persons, adequate incentives shall be provided to
private entities which employ disabled persons.
b)
Private entities that employ disabled persons who meet the required skills
or qualifications, either as regular employee, apprentice or learner, shall be entitled to an
additional deduction, from their gross income, equivalent to twenty-five percent (25%) of
the total amount paid as salaries and wages to disabled persons: Provided, however,
That such entities present proof as certified by the Department of Labor and
Employment that disabled persons are under their employ: Provided, further, That the
disabled employee is accredited with the Department of Labor and Employment and the
Department of Health as to his disability, skills and qualifications. cd
c)
Private entities that improve or modify their physical facilities in order to
provide reasonable accommodation for disabled persons shall also be entitled to an
additional deduction from their net taxable income, equivalent to fifty percent (50%) of
the direct costs of the improvements or modifications. This Section, however, does not
apply to improvements or modifications of facilities required under Batas Pambansa
Bilang 344.
SECTION 9. Vocational Rehabilitation. Consistent with the principle of equal opportunity
for disabled workers and workers in general, the State shall take appropriate vocational
rehabilitation measures that shall serve to develop the skills and potentials of disabled
persons and enable them to compete favorably for available productive and
remunerative employment opportunities in the labor market.
The State shall also take measures to ensure the provision of vocational
rehabilitation and livelihood services for disabled persons in the rural areas. In addition,
it shall promote cooperation and coordination between the government and
nongovernmental organizations and other private entities engaged in vocational
rehabilitation activities. cd
The Department of Social Welfare and Development shall design and implement
training programs that will provide disabled persons with vocational skills to enable them
to engage in livelihood activities or obtain gainful employment. The Department of Labor
and Employment shall likewise design and conduct training programs geared towards
providing disabled persons with skills for livelihood.
SECTION 10. Vocational Guidance and Counseling. The Department of Social and
Welfare and Development, shall implement measures providing and evaluating
vocational guidance and counseling to enable disabled persons to secure, retain and
advance in employment. It shall ensure the availability and training of counselors and
other suitably qualified staff responsible for the vocational guidance and counseling of
disabled persons. acd
SECTION 11. Implementing Rules and Regulations. The Department of Labor and
Employment shall in coordination with the Department of Social Welfare and
Development (DSWD) and National Council for the Welfare of the Disabled Persons

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(NCWDP) shall promulgate the rules and regulations necessary to implement the
provisions under this Chapter.
xxx
xxx
xxx
TITLE THREE
Prohibition on Discrimination Against Disabled Persons
CHAPTER 1
Discrimination on Employment
SECTION 32. Discrimination on Employment. No entity, whether public or private, shall
discriminate against a qualified disabled person by reason of disability in regard to job
application procedures, the hiring, promotion, or discharge of employees, employee
compensation, job training, and other terms, conditions, and privileges of employment.
The following constitute acts of discrimination:
a)
Limiting, segregating or classifying a disabled job applicant in such a
manner that adversely affects his work opportunities;
b)
Using qualification standards, employment tests or other selection criteria
that screen out or tend to screen out a disabled person unless such standards, tests or
other selection criteria are shown to be job-related for the position in question and are
consistent with business necessity;
c)
Utilizing standards, criteria, or methods of administration that:
1)
have the effect of discrimination on the basis of disability; or
2)
perpetuate the discrimination of others who are subject to common
administrative control. cdasia
d)
Providing less compensation, such as salary, wage or other forms of
remuneration and fringe benefits, to a qualified disabled employee, by reason of his
disability, than the amount to which a non-disabled person performing the same work is
entitled;
e)
Favoring a non-disabled employee over a qualified disabled employee
with respect to promotion, training opportunities, study and scholarship grants, solely on
account of the latter's disability;
f)
Re-assigning or transferring a disabled employee to a job or position he
cannot perform by reason of his disability;
g)
Dismissing or terminating the services of a disabled employee by reason
of his disability unless the employer can prove that he impairs the satisfactory
performance of the work involved to the prejudice of the business entity: Provided,
however, That the employer first sought to provide reasonable accommodations for
disabled persons;
h)
Failing to select or administer in the most effective manner employment
tests which accurately reflect the skills, aptitude or other factor of the disabled applicant
or employee that such tests purports to measure, rather than the impaired sensory,
manual or speaking skills of such applicant or employee, if any; and
i)
Excluding disabled persons from membership in labor unions or similar
organizations.
SECTION 33. Employment Entrance Examination. Upon an offer of employment, a
disabled applicant may be subjected to medical examination, on the following occasions:
a)
all entering employees are subjected to such an examination regardless of
disability; cda
b)
information obtained during the medical condition or history of the applicant is
collected and maintained on separate forms and in separate medical files and is
treated as a confidential medical record; Provided, however, That:

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1)
2)
3)
4)
8.

supervisors and managers may be informed regarding necessary


restrictions on the work or duties of the employees and necessary
accommodations;
first aid and safety personnel may be informed, when appropriate, if the
disability may require emergency treatment;
government officials investigating compliance with this Act shall be
provided relevant information on request; and
the results of such examination are used only in accordance with this Act..

OTHER CAUSES OF SEVERANCE OF EMPLOYMENT RELATION

- resignation & Art. 285 (termination by employee)


Voluntary Resignation- is defined as the act of an employee who finds himself in a situation
where he believes that personal reasons cannot be sacrificed in favor of the exigency of
the service and he has not other choice but to dissociate himself from his employment.

Resignation is withdrawable even if the employee has called it irrevocable. But after it
is accepted or approved by the employer, its withdrawal needs the employers consent.

A demotion or forced resignation may cause a complaint of constructive dismissal.

How is resignation effected and in what form?


1. Express Resignation- that which is made in writing, with the reasons for resignation
stated therein. Even if the employee writes a letter of resignation without indicating the
reasons therefore, the same is still valid. It is however advisable that a notice of his
intention to resign must be given by the EE to his ER at least one month in advance in
order for the ER to find a replacement, and to prevent his resignation from disrupting
work.
2. Implied Resignation- this is also called Constructive Resignation. This kind of
resignation is implied from antecedent, contemporaneous and subsequent acts
indicating that the EE no longer desires to continue employment.
3. Voluntary and Involuntary Resignation- Under Involuntary COURTESY
RESIGNATION and FORCED RESIGNATION, where the intent of the employee is
vitiated. (Invalid)
4. Accepted and Refused (Unaccepted) Resignation

The burden of proof to show that the resignation was voluntarily tendered lies with the
employer.
General Rule:
If an employee resigns, the company is under no obligation to give him
separation pay.
Exception: Unless the Separation Pay upon resignation is expressly provided for under the
employment contract, by company policy or under the CBA.

49

Is acceptance by tHe ER of the EEs resignation necessary?


- No, it is not necessary. The significance to acceptance by the ER comes in only when
the EE decides to withdraw his tendered resignation.
ARTICLE 285.
Termination by employee.
(a)
An employee may terminate without just cause the employee-employer
relationship by serving a written notice on the employer at least one (1)

En Consulta scutarius compilation labor relations 2009

(b)

month in advance. The employer upon whom no such notice was served
may hold the employee liable for damages.
An employee may put an end to the relationship without serving any
notice on the employer for any of the following just causes:
(1)
Serious insult by the employer or his representative on the
HONOR and person of the employee;
(2)
iNHUMAN AND UNBEARABLE TREATMENT accorded the
employee by the employer or his representative;
(3)
COMMISSION OF A CRIME OR OFFENSE by the employer or his
representative against the person of the employee or any of the
immediate members of his family; and
(4)
Other causes analogous to any of the foregoing.

- retirement (Art. 287, as amended by RA 7641)


Art. 287.

Retirement.
Any employee may be retired upon reaching the retirement age
established in the collective bargaining agreement or other applicable
employment contract.
In case of retirement, the employee shall be entitled to receive such
retirement benefits as he may have earned under existing laws and any
collective bargaining agreement and other agreements: Provided, however, That
an employee's retirement benefits under any collective bargaining and other
agreements shall not be less than those provided herein.
In the absence of a retirement plan or agreement providing for retirement
benefits of employees in the establishment, an employee upon reaching the age
of sixty (60) years or more, but not beyond sixty-five (65) years which is hereby
declared the compulsory retirement age, who has served at least five (5) years in
the said establishment, may retire and shall be entitled to retirement pay
equivalent to at least one-half (1/2) month salary for every year of service, a
fraction of at least six (6) months being considered as one whole year.
Unless the parties provide for broader inclusions, the term one-half (1/2)
month salary shall mean fifteen (15) days plus one-twelfth (1/12) of the 13th
month pay and the cash equivalent of not more than five (5) days of service
incentive leaves.
Retail, service and agricultural establishments or operations employing
not more than (10) employees or workers are exempted from the coverage of this
provision.
Violation of this provision is hereby declared unlawful and subject to the
penal provisions provided under Article 288 of this Code.

RULE II, BOOK VI OF THE RULES IMPLEMENTING THE LABOR CODE


(RETIREMENT BENEFITS FOR EMPLOYEES IN THE PRIVATE SECTOR)
Pursuant to the provisions of Article 287 of the Labor Code as amended by
Republic Act No. 7641, in relation to Article 5 of the same Code, Rule II of Book VI of the
Rules Implementing the Labor Code is hereby issued, the full text of which shall read as
follows:
RULE II
Retirement Benefits
SECTION 1. General Statement on Coverage. This Rule shall apply to all
employees in the private sector, regardless of their position, designation, or

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status and irrespective of the method by which their wages are paid, except to
those specifically exempted under Section 2 hereof. As used herein, the term
"Act" shall refer to Republic Act No. 7641, which took effect on January 7, 1993.
SECTION 2. Exemptions. This Rule shall not apply to the following employees:
2.1
Employees of the National Government and its political subdivisions,
including Government-owned or controlled corporations, if they are
covered by the Civil Service Law and its regulations.
2.2
Domestic helpers and persons in the personal service of another.
2.3
Employees of retail, service and agricultural establishments or operations
regularly employing not more than ten (10) employees. As used in this
sub-section:
(a)
"Retail establishment" is one principally engaged in the sale of
goods to end-users for personal or household use. It shall lose its
retail character qualified for exemption if it is engaged in both retail
and wholesale of goods.
(b)
"Service establishment" is one principally engaged in the sale of
service to individuals for their own or household use and is
generally recognized as such.
(c)
"Agricultural establishment/operation" refers to an employer which
is engaged in agriculture. This term refers to all farming activities
in all its branches and includes, among others, the cultivation and
tillage of the soil, production, cultivation, growing and harvesting of
any agricultural or horticultural commodities, dairying, raising of
livestock or poultry, the culture of fish and other aquatic products
in farms or ponds, and any activities performed by a farmer or on
a farm as an incident to or in conjunction with such farming
operations, but does not include the manufacture or processing of
sugar, coconut, abaca, tobacco, pineapple, aquatic or other farm
products.
SECTION 3. Retirement Under CBA/Contract.
3.1
Any employee may retire or be retired by his employer upon reaching the
retirement age established in the collective bargaining agreement or other
applicable employment contract, subject to the provisions of Section 5
hereof on the payment of retirement benefits. cdt
3.2
In case of retirement under this Section, the employee shall be entitled to
receive such retirement benefits as he may have earned under existing
laws and any collective bargaining agreement and other agreements;
provided, however, that an employee's retirement benefits under any
collective bargaining and other agreements shall not be less than those
provided under this Rule; and provided further that if such benefits are
less, the employer shall pay the difference between the amount due the
employee under this Rule and that provided under the collective
bargaining agreement or other applicable employment contract.
3.3
Where both the employer and the employee contribute to a retirement
fund in accordance with a collective bargaining agreement or other
applicable employment contract, the employer's total contribution thereto
shall not be less than the total retirement benefits to which the employee
would have been entitled had there been no such retirement fund. In case
the employer's contribution is less than the retirement benefits provided
under this Rule, the employer shall pay the deficiency.
SECTION 4. Optional/Compulsory Retirement.

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4.1

Optional Retirement In the absence of a retirement plan or other


applicable agreement providing for retirement benefits of employees in an
establishment, an employee may retire upon reaching the age of sixty
(60) years or more if he has served for at least five (5) years in said
establishment.
4.2
Compulsory Retirement Where there is no such plan or agreement
referred to in the immediately preceding sub-section, an employee shall
be retired upon reaching the age of sixty-five (65) years.
4.3
Upon retirement of an employee, whether optional or compulsory, his
services may be continued or extended on a case to case basis upon
agreement of the employer and employee.
4.4
Service Requirement The minimum length of service of at least five (5)
years required for entitlement to retirement pay shall include authorized
absences and vacations, regular holidays, and mandatory fulfillment of a
military or civic duty.
SECTION 5. Retirement Benefits.
5.1
In the absence of an applicable employment contract, an employee who
retires pursuant to the Act shall be entitled to retirement pay equivalent to
at least one-half (1/2) month salary for every year of service, a fraction of
at least six (6) months being considered as one whole year.
5.2
Components of One-half (1/2) Month Salary. For the purpose of
determining the minimum retirement pay due an employee under this
Rule, the term "one-half month salary" shall include all of the following:
(a)
Fifteen (15) days salary of the employee based on his latest salary
rate. As used herein, the term "salary" includes all remunerations
paid by an employer to his employees for services rendered
during normal working days and hours, whether such payments
are fixed or ascertained on a time, task, piece or commission
basis, or other method of calculating the same, and includes the
fair and reasonable value, as determined by the Secretary of
Labor and Employment, of food, lodging or other facilities
customarily furnished by the employer to his employees. The term
does not include cost of living allowances, profit-sharing payments
and other monetary benefits which are not considered as part of
or integrated into the regular salary of the employees;
(b)
The cash equivalent of five (5) days of service incentive leave;
(c)
One-twelfth of the 13th month pay due the employee; and
(d)
All other benefits that the employer and employee may agree
upon that should be included in the computation of the employee's
retirement pay.
5.3
One-half Month Salary of Employees Who Are Paid by Results. For
covered workers who are paid by results and do not have a fixed monthly
rate, the basis for determination of the salary for fifteen days shall be their
average daily salary (ADS), subject to the provisions of Rule VII-A, Book
III of the rules implementing the Labor Code on the payment of wages of
workers who are paid by results. The ADS is the average salary for the
last twelve (12) months reckoned from the date of their retirement, divided
by the number of actual working days in that particular period.
SECTION 6. Exemption from Tax. The retirement pay provided in the Act may be
exempted from tax if the requirements set by the Bureau of Internal Revenue

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under Sec. 2 (b), item (1) of Revenue Regulations No. 12-86 dated August 1,
1986 are met, to wit:
"Pensions, retirement and separation pay. Pensions, retirement and
separation pay constitute compensation subject to withholding tax, except the
following:
(1)
Retirement benefit received by officials and employees of private firms
under a reasonable private benefit plan maintained by the employer, if the
following requirements are met:
(i)
The benefit plan must be approved by the Bureau of Internal Revenue;
(ii)
The retiring official or employee must have been in the service of the
same employer for at least ten (10) years and is not less than fifty (50)
years of age at the time of retirement; and
(iii)
The retiring official or employee shall not have previously availed of the
privilege under the retirement benefit plan of the same or another
employer".
SECTION 7. Penal Provision. It shall be unlawful for any person or entity to
circumvent or render ineffective the provisions of the Act. Violations thereof shall
be subject to the penal provisions provided under Article 288 of the Labor Code
of the Philippines.
SECTION 8. Relation to Agreements and Regulations. Nothing in this Rule shall
justify an employer from withdrawing or reducing any benefits, supplements, or
payments as provided in existing laws, individual or collective agreements, or
employment practices or policies.
All rules and regulations, policy issuances, or orders contrary to or
inconsistent with these rules are hereby repealed or modified accordingly.
SECTION 9. Effectivity. This Rule took effect on January 7, 1993 when the Act
went into force.
(SGD.) MA. NIEVES R. CONFESOR
Secretary

Retirement Law could be given retroactive effect:


1.
The claimant for retirement benefits was still the employee of the employer at the
time the statute took effect; and
2.
The claimant has complied with the requirements for eligibility under the statute
for such retirement benefits.

Retirement schemes under the labor code:


1.
Optional Retirement- 60 years
2.
Compulsory Retirement- 65 years

Can compulsory retirement be lower than 65 years?


- Yes, if it is stipulated in the CBA or in the employment contract.

The benefits to which the retiree may be entitled to could be higher if so provided in the
employment contract or CBA. If the benefits provided are lesser than that provided for by law,
the employer shall pay the difference between the amount due to the employee under this Rule
and that provided in the CBA or in any other employment contract.

Is an employee who is dismissed for just causes entitled to retirement pay,


considering that at the time of dismissal the employee is already qualified to receive
retirement pay?

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- Yes, but only on a case-to-case basis, since there is no provision in the labor code for
forfeiture of retirement pay, then the liberal interpretation of the law in favor of labor
should be applied.

However, with the enactment of RA 7641 considering there is no provision for forfeiture
of retirement pay, then an employee dismissed shall be entitled to retirement pay provided that
the legal requisites are complied with.
9.

PRESCRIPTION OF CLAIMS

- Claim for illegal dismissal (Art 1146, NCC)


ARTICLE 1146.
The following actions must be instituted within four years:
(1)
Upon an injury to the rights of the plaintiff;
(2)
Upon a quasi-delict;
However, when the action arises from or out of any act, activity, or
conduct of any public officer involving the exercise of powers or authority arising
from Martial Law including the arrest, detention and/or trial of the plaintiff, the
same must be brought within one (1) year. (As amended by P.D. No. 1755, Dec.
24, 1980.)
- Money claims (Art 291)
ARTICLE 291.
Money claims.
All money claims arising from employer-employee relations accruing
during the effectivity of this Code shall be filed within three (3) years from the
time that cause of action accrued; otherwise they shall be forever barred.
Workmen's compensation claims accruing prior to the effectivity of this
Code and during the period from November 1, 1974, up to December 31, 1974,
shall be filed with the appropriate regional offices of the Department of Labor not
later than March 31, 1975; otherwise, they shall be processed and adjudicated in
accordance with the law and rules at the time their causes of action accrued.
-Claim for illegal dismissal with money claims

They have different prescriptive periods. The action for money claim, whether principal
action or not, shall prescribe in 3 years. The action for illegal dismissal, whether principal action
or not, shall prescribe in 4 years.

On the issue of backwages as a relief for illegal dismissal, there is no prescriptive


period.

On the issue of separation pay, this follows the same prescriptive period as money
claims. Thus, 3-year period applies.

10.

JURISDICTION OF THE LABOR ARBITER

- Original and exclusive; Labor Arbiter (Art 217)


ARTICLE 217.
Jurisdiction of Labor Arbiters and the Commission.
(a)
Except as otherwise provided under this Code, the Labor Arbiters shall
have original and exclusive jurisdiction to hear and decide, within thirty

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(30) calendar days after the submission of the case by the parties for
decision without extension, even in the absence of stenographic notes,
the following cases involving all workers, whether agricultural or nonagricultural:
(1)
Unfair labor practice cases;
(2)
Termination disputes;
(3)
If accompanied with a claim for reinstatement, those cases that
workers may 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 of damages
arising from the employer-employee relations;
(5)
Cases arising from any violation of Article 264 of this Code,
including questions involving the legality of strikes and lockouts;
and
(6)
Except claims for employees compensation, social security,
medicare and maternity benefits, all other claims arising from
employer-employee relations, including those of persons in
domestic or household service, involving an amount exceeding
Five thousand pesos (P5,000.00), whether or not accompanied
with a claim for reinstatement.
(b)
The Commission shall have exclusive appellate jurisdiction over all cases
decided by Labor Arbiters.
(c)
Cases arising from the interpretation or implementation of collective
bargaining agreements and those arising from the interpretation or
enforcement of company personnel policies shall be disposed by the
Labor Arbiter by referring the same to the grievance machinery and
voluntary arbitration as may be provided in said agreements.
Exception:
1.
Art 129--- simple money claims
2.
Art 263(g)--- SoLE (plenary power)---lockouts
SC: jurisdiction of cases supposedly under LA
a. Lockouts---strike
b. necessary and indispensable to national interest
3.
Art 261, 262, 263---jurisdiction of voluntary arbitrators
4.
SEC--- Intracorporate dispute (NOW RTC)
-Scope of jurisdiction
Rule V, Section 1. Jurisdiction of Labor Arbiters
Labor Arbiters shall have original and exclusive jurisdiction to hear and
decide the following cases involving all workers, whether agricultural or nonagricultural:
a.
Unfair labor practice cases;
b.
Termination disputes;
c.
If accompanied with a claim for reinstatement, those cases that
workers may file involving wages, rates of pay, hours of work and
other terms and condition of employment;
d.
Claims for actual, moral, exemplary and other forms of damages
arising from the employer-employee relations;

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e.

Cases arising from any violation of Article 264 of this Code, as


amended, including questions involving the legality of strikes and
lockouts; and
f.
Except claims for employees compensation not included in the
next succeeding paragraph, social security, medicare, and
maternity benefits, all other claims arising from employeremployee relations, including those of persons in domestic or
household service, involving an amount exceeding P5,000
whether or not accompanied with a claim for reinstatement;
g.
Money claims arising out of employer-employee relationship or by
virtue of any law or contract, involving Filipino workers for
overseas deployment, including claims for actual, moral,
exemplary and other forms of damages;
h.
Wage distortion disputes in unorganized establishments not
voluntarily settled by the parties pursuant to Republic Act 6727;
i.
Enforcement of compromise agreements when there is noncompliance by any of the parties pursuant to Art 227 of the Labor
Code, as amended; and
j.
Other cases as may be provided by law.
Cases arising from the interpretation or implementation of collective
bargaining agreements and those arising from the interpretation or enforcement
of company personnel policies shall be disposed by the Labor Arbiter by referring
the same to the grievance machinery and voluntary arbitration, as may be
provided in said agreements.
-Concurrent jurisdiction of other agencies; Art 129; Art 261 & 262; Art 263 (g); RA 7691
ARTICLE 128.
Visitorial and enforcement power.
(a)
The Secretary of Labor or his duly authorized representatives, including labor
regulation officers, shall have access to employer's records and premises at any
time of the day or night whenever work is being undertaken therein, and the right
to copy therefrom, to question any employee and investigate any fact, condition
or matter which may be necessary to determine violations or which may aid in
the enforcement of this Code and of any labor law, wage order or rules and
regulations issued pursuant thereto.
(b)
Notwithstanding the provisions of Articles 129 and 217 of this Code to the
contrary, and in cases where the relationship of employer-employee still exists,
the Secretary of Labor and Employment or his duly authorized representatives
shall have the power to issue compliance orders to give effect to the labor
standards provisions of this Code and other labor legislation based on the
findings of labor employment and enforcement officers or industrial safety
engineers made in the course of inspection. The Secretary or his duly authorized
representatives shall issue writs of execution to the appropriate authority for the
enforcement of their orders, except in cases where the employer contests the
findings of the labor employment and enforcement officer and raises issues
supported by documentary proofs which were not considered in the course of
inspection.
An order issued by the duly authorized representative of the Secretary of
Labor and Employment under this article may be appealed to the latter. In case
said order involves a monetary award, an appeal by the employer may be
perfected only upon the posting of a cash or surety bond issued by a reputable

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(c)

(d)

(e)
(f)

bonding company duly accredited by the Secretary of Labor and Employment in


the amount equivalent to the monetary award in the order appealed from.
The Secretary of Labor may likewise order stoppage of work or suspension of
operations of any unit or department of an establishment when non-compliance
with the law or implementing rules and regulations poses grave and imminent
danger to the health and safety of workers in the workplace. Within twenty-four
hours, a hearing shall be conducted to determine whether an order for the
stoppage of work or suspension of operations shall be lifted or not. In case the
violation is attributable to the fault of the employer, he shall pay the employees
concerned their salaries or wages during the period of such stoppage of work or
suspension of operation.
It shall be unlawful for any person or entity to obstruct, impede, delay or
otherwise render ineffective the orders of the Secretary of Labor or his duly
authorized representatives issued pursuant to the authority granted under this
Article, and no inferior court or entity shall issue temporary or permanent
injunction or restraining order or otherwise assume jurisdiction over any case
involving the enforcement orders issued in accordance with this Article.
Any government employee found guilty of violation of, or abuse of authority,
under this Article shall, after appropriate administrative investigation, be subject
to summary dismissal from the service.
The Secretary of Labor may, by appropriate regulations, require employers to
keep and maintain such employment records as may be necessary in aid of his
visitorial and enforcement powers under this Code.

ARTICLE 261.
Jurisdiction of Voluntary Arbitrators or panel of Voluntary
Arbitrators. The Voluntary Arbitrator or panel of Voluntary Arbitrators shall
have original and exclusive jurisdiction to hear and decide all unresolved
grievances arising from the interpretation or implementation of the Collective
Bargaining Agreement and those arising from the interpretation or enforcement of
company personnel policies referred to in the immediately preceding article.
Accordingly, violations of a Collective Bargaining Agreement, except those which
are gross in character, shall no longer be treated as unfair labor practice and
shall be resolved as grievances under the Collective Bargaining Agreement. For
purposes of this article, gross violations of Collective Bargaining Agreement shall
mean flagrant and/or malicious refusal to comply with the economic provisions of
such agreement.
The Commission, its Regional Offices and the Regional Directors of the
Department of Labor and Employment shall not entertain disputes, grievances or
matters under the exclusive and original jurisdiction of the Voluntary Arbitrator or
panel of Voluntary Arbitrators and shall immediately dispose and refer the same
to the Grievance Machinery or Voluntary Arbitration provided in the Collective
Bargaining Agreement.
ARTICLE 262.
Jurisdiction over other labor disputes. The Voluntary
Arbitrator or panel of Voluntary Arbitrators, upon agreement of the parties, shall
also hear and decide all other labor disputes including unfair labor practices and
bargaining deadlocks.
ARTICLE 262-A.
Procedures. The Voluntary Arbitrator or panel of Voluntary
Arbitrators shall have the power to hold hearings, receive evidences and take
whatever action is necessary to resolve the issue or issues subject of the
dispute, including efforts to effect a voluntary settlement between parties.

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All parties to the dispute shall be entitled to attend the arbitration
proceedings. The attendance of any third party or the exclusion of any witness
from the proceedings shall be determined by the Voluntary Arbitrator or panel of
Voluntary Arbitrators. Hearings may be adjourned for a cause or upon agreement
by the parties.
Unless the parties agree otherwise, it shall be mandatory for the
Voluntary Arbitrator or panel of Voluntary Arbitrators to render an award or
decision within twenty (20) calendar days from the date of the submission of the
dispute to voluntary arbitration.
The award or decision of the Voluntary Arbitrator or panel of Voluntary
Arbitrators shall contain the facts and the law on which it is based. It shall be final
and executory after ten (10) calendar days from receipt of the copy of the award
or decision by the parties.
Upon motion of any interested party, the Voluntary Arbitrator or panel of
Voluntary Arbitrators or the Labor Arbiter in the region where the movant reside,
in case of the absence or incapacity of the Voluntary Arbitrator or panel of
Voluntary Arbitrators for any reason, may issue a writ of execution requiring
either the sheriff of the Commission or regular courts or any public official whom
the parties may designate in the submission agreement to execute the final
decision, order or award.
ARTICLE 262-B.
Cost of Voluntary Arbitration and Voluntary Arbitrators fee.
The parties to a Collective Bargaining Agreement shall provide therein a
proportionate sharing scheme on the cost of voluntary arbitration including the
Voluntary Arbitrators fee. The fixing of the fee of the Voluntary Arbitrators or panel
of Voluntary Arbitrators, whether shouldered wholly by the parties or subsidized
by the Special Voluntary Arbitration Fund, shall take into account the following
factors:
(a)
Nature of the case;
(b)
Time consumed in hearing the case;
(c)
Professional standing of the Voluntary Arbitrator;
(d)
Capacity to pay of the parties; and
(e)
Fees provided for in the Revised Rules of Court.
ARTICLE 263.
Strikes, picketing and lockouts.
(g)
When, in his opinion, there exists a labor dispute causing or likely to cause a
strike or lockout in an industry indispensable to the national interest,(example are
san Miguel, pharmaceutical companies, hospitals, airline companies and
shipping industries). the Secretary of Labor and Employment may assume
jurisdiction over the dispute and decide it or certify the same to the Commission
for compulsory arbitration. Such assumption or certification shall have the effect
of automatically enjoining the intended or impending strike or lockout as specified
in the assumption or certification order. If one has already taken place at the time
of assumption or certification, all striking or locked out employees shall
immediately return to work and the employer shall immediately resume
operations and readmit all workers under the same terms and conditions
prevailing before the strike or lockout. The Secretary of Labor and Employment
or the Commission may seek the assistance of law enforcement agencies to
ensure the compliance with this provision as well as with such orders as he may
issue to enforce the same.
In line with the national concerns for and the highest respect accorded to
the right of patients to life and health, strikes and lockouts in hospitals, clinics and
similar medical institutions shall, to every extent possible, be avoided, and all

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serious efforts, not only by labor and management but government as well, be
exhausted to substantially minimize, if not prevent, their adverse effects on such
life and health, through the exercise, however legitimate, by labor of its right to
strike and by management to lockout. In labor disputes adversely affecting the
continued operation of such hospitals, clinics or medical institutions, it shall be
the duty of the striking union or locking out employer to provide and maintain an
effective skeletal workforce of medical and other health personnel, whose
movement and services shall be unhampered and unrestricted, as are necessary
to insure the proper and adequate protection of the life and health of its patients,
most especially emergency cases, for the duration of the strike or lockout. In
such cases, therefore, the Secretary of Labor and Employment may immediately
assume, within twenty four (24) hours from knowledge of the occurrence of such
a strike or lockout, jurisdiction over the same or certify it to the Commission for
compulsory arbitration. For this purpose, the contending parties are strictly
enjoined to comply with such orders, prohibitions and/or injunctions as are issued
by the Secretary of Labor and Employment or the Commission, under pain of
immediate disciplinary action, including dismissal or loss of employment status or
payment by the locking-out employer of backwages, damages and other
affirmative relief, even criminal prosecution against either or both of them.
The foregoing notwithstanding, the President of the Philippines shall not
be precluded from determining the industries that, in his opinion, are
indispensable to the national interest, and from intervening at any time and
assuming jurisdiction over any labor dispute in such industries in order to settle
or terminate the same.
-Labor dispute (Art 212(l) & civil dispute)
Art 212
(l)
"Labor dispute" includes any controversy or matter concerning terms or
conditions of employment or the 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.
Civil Dispute
It is settled jurisprudence that a cause of action has three elements, to wit:
1. a right in favor of the plaintiff by whatever means and under whatever law it arises or
is created;
2. an obligation on the part of the defendant to respect or not to violate such right; and
3. an act or omission on the part of the defendant violative of the right of the plaintiff or
constituting a breach of the obligation of the defendant to the plaintiff.
-Labor dispute & intra-corporate disputes (RA 8799)
Intra-Corporate Dispute
Is one which arises between a stockholder and a corporation.
RA 8799
Section 5.2. The Commission's jurisdiction over all cases enumerated under Section 5
of Presidential Decree No. 902-A is hereby transferred to the Courts of general
jurisdiction or the appropriate Regional Trial Court: Provided, That the Supreme

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Court in the exercise of its authority may designate the Regional Trial Court
branches that shall exercise jurisdiction over these cases. The Commission shall
retain jurisdiction over pending cases involving intra-corporate disputes
submitted for final resolution which should be resolved within one (1) year from
the enactment of this Code. The Commission shall retain jurisdiction over
pending suspension of payments/rehabilitation cases filed as of 30 June 2000
until finally disposed.
11.
2006

2005 REVISED RULES OF PROCEDURE OF THE NLRC EFFECTIVE JANUARY 7,

- Complaint; cause of action; real parties in interest; amendment of complaint


Complaint
Rule III
Section 1. Complaint.
a) A complaint or petition is a pleading alleging the cause or causes of action of
the complainant or petitioner. The names and addresses of all complainants or
petitioners and respondents must be stated in the complaint or petition. It shall be
signed under oath by the complainant or petitioner, with a declaration of nonforum shopping.
b) A party having more than one cause of action against the other party, arising
out of the same relationship, shall include all of them in one complaint or petition.
c) No amendment of the complaint or petition shall be allowed after the filing of
position papers, unless with leave of the Labor Arbiter or the Commission.
Cause of Action
( ROVID)
1. Right of the plaintiff
2. Obligation of defendant
3. Violation
4. Injury---material invasion of the right
5. Damage
Real Parties in Interest
Section 2. Caption and Title. - In all cases filed with the Commission or with any of its
Regional Arbitration Branches, the party initiating the action shall be called the
"Complainant" or "Petitioner", and the opposing party the "Respondent".
The full names of all the real parties in interest, whether natural or juridical
persons or entities authorized by law, shall be stated in the caption of the complaint or
petition, as well as in the decisions, resolutions or orders of the Labor Arbiter or the
Commission.

A real party in interest is the party who stands to be benefited or injured by the judgment
in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or by
these Rules, every action must be prosecuted or defended in the name of the real party in
interest.
Amendment of the Complaint

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Rule III, Section 1
c) No amendment of the complaint or petition shall be allowed after the filing of position
papers, unless with leave of the Labor Arbiter or the Commission.
- Venue and Jurisdiction (Art 129 & Art 217); money claims of OFW
ARTICLE 129.
Recovery of wages, simple money claims and other benefits.

Upon complaint of any interested party, the Regional Director of the Department
of Labor and Employment or any of the duly authorized hearing officers of the
Department is empowered, through summary proceeding and after due notice, to hear
and decide any matter involving the recovery of wages and other monetary claims and
benefits, including legal interest, owing to an employee or person employed in domestic
or household service or househelper under this Code, arising from employer-employee
relations: Provided, That such complaint does not include a claim for reinstatement:
Provided, further, That the aggregate money claims of each employee or househelper do
not exceed Five thousand pesos (P5,000.00). The Regional Director or hearing officer
shall decide or resolve the complaint within thirty (30) calendar days from the date of the
filing of the same. Any sum thus recovered on behalf of any employee or househelper
pursuant to this Article shall be held in a special deposit account, and shall be paid, on
order of the Secretary of Labor and Employment or the Regional Director directly to the
employee or househelper concerned. Any such sum not paid to the employee or
househelper, because he cannot be located after diligent and reasonable effort to locate
him within a period of three (3) years, shall be held as a special fund of the Department
of Labor and Employment to be used exclusively for the amelioration and benefit of
workers.
Any decision or resolution of the Regional Director or hearing officer pursuant to
this provision may be appealed on the same grounds provided in Article 223 of this
Code, within five (5) calendar days from receipt of a copy of said decision or resolution,
to the National Labor Relations Commission which shall resolve the appeal within ten
(10) calendar days from the submission of the last pleading required or allowed under its
rules.
The Secretary of Labor and Employment or his duly authorized representative
may supervise the payment of unpaid wages and other monetary claims and benefits,
including legal interest, found owing to any employee or househelper under this Code.
ARTICLE 217.
Jurisdiction of Labor Arbiters and the Commission.
(a)
Except as otherwise provided under this Code, the Labor Arbiters shall have
original and exclusive jurisdiction to hear and decide, within thirty (30) calendar
days after the submission of the case by the parties for decision without
extension, even in the absence of stenographic notes, the following cases
involving all workers, whether agricultural or non-agricultural:
(1)
Unfair labor practice cases;
(2)
Termination disputes;
(3)
If accompanied with a claim for reinstatement, those cases that workers
may file involving wages, rates of pay, hours of work and other terms and
conditions of employment; (regardless of amount)
(4)
Claims for actual, moral, exemplary and other forms of damages arising
from the employer-employee relations;
(5)
Cases arising from any violation of Article 264 of this Code, including
questions involving the legality of strikes and lockouts; and

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(6)

Except claims for employees compensation, social security, medicare and


maternity benefits, all other claims arising from employer-employee
relations, including those of persons in domestic or household service,
involving an amount exceeding Five thousand pesos (P5,000.00),
whether or not accompanied with a claim for reinstatement.
(b)
The Commission shall have exclusive appellate jurisdiction over all cases
decided by Labor Arbiters.
(c)
Cases arising from the interpretation or implementation of collective bargaining
agreements and those arising from the interpretation or enforcement of company
personnel policies shall be disposed by the Labor Arbiter by referring the same to
the grievance machinery and voluntary arbitration as may be provided in said
agreements.

Money Claims of OFW


ARTICLE 291. Money Claims
All money claims arising from employer-employee relations accruing during the
effectivity of this code shall be filed within three years from the time the cause of
action accrued; otherwise they shall forever be barred.
All money claims accruing prior to the affectivity of this Code shall be filed
with the appropriate entities established under this Code within one year from the
date of effectivity, and shall be processed and determined in accordance with
implementing rules and regulations of the Code; otherwise they shall forever be
barred.
Workmens compensation claims accruing prior to the effectivity of this
Code and during the period from November 1, 1974, up to December 31, 1974,
shall be filed with the appropriate regional offices of the Department of Labor not
later than March 31, 1975; otherwise they shall forever be barred. The claims
shall be processed and adjudicated in accordance with the law and rules at the
time their cause of action accrued.
- Service of Summons; natural & juridical; raffle & assignment of cases
Service of summons
- a mode of acquiring jurisdiction over the person of the defendant
Section 3. Issuance of Summons. - Within two (2) days from receipt of a complaint or
amended complaint, the Labor Arbiter shall issue the required summons, attaching
thereto a copy of the complaint or amended complaint.The summons shall specify the
date, time and place of the mandatory conciliation and mediation conference in two (2)
settings.
Raffle & Assignment of Cases
Section 2. Raffle and Assignment of Cases.
a)

62

All complaints and petitions filed with the docket unit of the Regional
Arbitration Branch shall be immediately raffled and assigned to a Labor
Arbiter from receipt thereof.

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b)

The Executive Labor Arbiter shall be responsible for the immediate raffle
and assignment of all complaints and petitions filed with his Regional
Arbitration Branch, and the immediate forwarding of all subsequent
pleadings and motions.

c)

All pleadings and motions subsequent to the filing of the complaint shall
be forwarded to the Labor Arbiter before whom the case is pending within
twenty-four (24) hours from receipt thereof.

- Appearances of Lawyers & Non-Lawyers


Section 8. Appearances.
a)
A lawyer appearing for a party is presumed to be properly authorized for
that purpose.In every case, he shall indicate in his pleadings and motions
his Attorney's Roll Number, as well as his PTR and IBP numbers for
the current year.
b)
A non-lawyer may appear as counsel in any of the proceedings
before the Labor Arbiter or Commission only under the following
conditions:
(1)
he represents himself as party to the case;
(2)
he represents a legitimate labor organization, as defined under
Article 212 and 242 of the Labor Code, as amended, which is a
party to the case: Provided, that he presents:
(i) a certification from the Bureau of Labor Relations (BLR) or
Regional Office of the Department of Labor and Employment
attesting that the organization he represents is duly registered
and listed in the roster of legitimate labor organizations;
(ii) a verified certification issued by the secretary and attested to
by the president of the said organization stating that he is
authorized to represent the said organization in the said case; and
(iii) a copy of the resolution of the board of directors of the said
organization granting him such authority;
(3)
he represents a member or members of a legitimate labor
organization that is existing within the employer's establishment,
who are parties to the case: Provided, that he presents:
(i) a verified certification attesting that he is authorized by such
member or members to represent them in the case; and
(ii) a verified certification issued by the secretary and attested to
by the president of the said organization stating that the person or
persons he is representing are members of their organization
which is existing in the employer's establishment;
(4)
he is a duly-accredited member of any legal aid office recognized
by the Department of Justice or Integrated Bar of the Philippines:
Provided, that he (i) presents proof of his accreditation; and (ii)
represents a party to the case;
(5)
he is the owner or president of a corporation or establishment
which is a party to the case: Provided, that he presents: (i) a
verified certification attesting that he is authorized to represent
said corporation or establishment; and (ii) a copy of the resolution
of the board of directors of said corporation, or other similar
resolution or instrument issued by said establishment, granting
him such authority.

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c)

A non-lawyer who appears in contravention of this Section shall not be


recognized in any proceedings before the Labor Arbiter or the
Commission.
d)
Appearances may be made orally or in writing.In both cases, the complete
name and office address of both parties
shall be made on record and the
adverse party or his counsel or representative properly notified.
e)
Any change in the address of counsel or representative should be filed
with the records of the case and furnished the adverse party or counsel.
f)
Any change or withdrawal of counsel or representative shall be made in
accordance with the Rules of Court.
- Ground to dismiss complaint; prescription of money claims (Art 291); prohibited
pleadings & motions
Ground to dismiss complaint
1. Lack of jurisdiction over the subject matter;
2. Improper venue; or
3. Res adjudicata, prescription and forum shopping
Prescription of money claims
ARTICLE 291. Money Claims
All money claims arising from employer-employee relations accruing during the
effectivity of this code shall be filed within three years form the time the cause of
action accrued; otherwise they shall forever be barred.
All money claims accruing prior to the effectivity of this Code shall be filed
with the appropriate entities established under this Code within one year from the
date of effectivity, and shall be processed and determined in accordance with
implementing rules and regulations of the Code; otherwise they shall forever be
barred.
Workmens compensation claims accruing prior to the effectivity of this
Code and during the period from November 1, 1974, up to December 31, 1974,
shall be filed with the appropriate regional offices of the Department of Labor not
later than March 31, 1975; otherwise they shall forever be barred. The claims
shall be processed and adjudicated in accordance with the law and rules at the
time their cause of action accrued.
Prohibited Pleadings & Motions
Section 4. Prohibited Pleadings and Motions.
The following pleadings and motions shall not be allowed and acted upon nor
elevated to the Commission in all cases covered by these Rules:
a)
Motion to dismiss the complaint except on the ground of lack of
jurisdiction over the subject matter, improper venue, res adjudicata,
prescription and forum shopping;
b)
Motion for a bill of particulars;
c)
Motion for new trial;
d)
Petition for relief from judgment when filed with the Labor Arbiter;
e)
Petition for certiorari, mandamus or prohibition;
f)
Motion to declare respondent in default;
g)
Motion for reconsideration or appeal from any interlocutory order of the
Labor Arbiter.

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- Conciliation & mediation conference
Section 3. Mandatory Conciliation and Mediation Conference.
a)
The mandatory conciliation and mediation conference shall be called for the
purpose of (1) amicably settling the case upon a fair compromise; (2) determining
the real parties in interest; (3) determining the necessity of amending the
complaint and including all causes of action; (4) defining and simplifying the
issues in the case; (5) entering into admissions or stipulations of facts; and (6)
threshing out all other preliminary matters.The Labor Arbiter shall preside and
take full control of the proceedings.
b)
Conciliation and mediation efforts shall be exerted by the Labor Arbiters
all throughout the proceedings. Should the parties arrive at any agreement
as to the whole or any part of the dispute, the same shall be reduced to
writing and signed by the parties and their respective counsel or
authorized representative, if any, before the Labor Arbiter.
c)
In any case, the compromise agreement shall be approved by the Labor Arbiter,
if after explaining to the parties, particularly to the complainants, the terms,
conditions and consequences thereof, he is satisfied that they understand the
agreement, that the same was entered into freely and voluntarily by them, and
that it is not contrary to law, morals, and public policy.
d)
A compromise agreement duly entered into in accordance with this Section shall
be final and binding upon the parties and shall have the force and effect of a
judgment rendered by the Labor Arbiter.
e)
The mandatory conciliation and mediation conference shall, except for justifiable
grounds, be terminated within thirty (30) calendar days from the date of the first
conference.
f)
No motion for postponement shall be entertained except on meritorious grounds.
Section 4. Effect of Failure of Conciliation and Mediation. - Should the parties fail to
agree upon an amicable settlement, either in whole or in part, during the mandatory
conciliation and mediation conference, the Labor Arbiter shall terminate the conciliation
and mediation stage and proceed to pursue the other purposes of the said conference
as enumerated in the immediately preceding Section. Thereafter, the Labor Arbiter shall
direct the parties to simultaneously file their respective position papers on the issues
agreed upon by the parties and as reflected in the minutes of the proceedings.
- Compromise before Regional Director (Art 227) & Labor Arbiter (Art 2028, NCC)
ARTICLE 227.
Compromise agreements.
Any compromise settlement, including those involving labor standard laws,
voluntarily agreed upon by the parties with the assistance of the Bureau or the regional
office of the Department of Labor, shall be final and binding upon the parties. The
National Labor Relations Commission or any court shall not assume jurisdiction over
issues involved therein except in case of non-compliance thereof or if there is prima
facie evidence that the settlement was obtained through fraud, misrepresentation, or
coercion.
ARTICLE 2028.
A compromise is a contract whereby the parties, by making reciprocal
concessions, avoid litigation or put an end to one already commenced.
- Submission of position paper; contents of position paper
Section 7. Submission of Position Paper and Reply.

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a)

Subject to Sections 4 and 5 of this Rule, the Labor Arbiter shall direct the parties
to submit simultaneously their verified position papers with supporting documents
and affidavits, if any, within an inextendible period of ten (10) calendar days from
the date of termination of the mandatory conciliation and mediation conference.
b)
The position papers of the parties shall cover only those claims and causes of
action raised in the complaint or amended complaint, excluding those that may
have been amicably settled, and accompanied by all supporting documents,
including the affidavits of witnesses, which shall take the place of their direct
testimony.
c)
A reply may be filed by any party within ten (10) calendar days from receipt of the
position paper of the adverse party.
d)
In their position papers and replies, the parties shall not be allowed to allege
facts, or present evidence to prove facts and any cause or causes of action not
referred to or included in the original or amended complaint or petition.
- Quantum of evidence & burden of proof; technical rules of procedure (Art 221);
Quantum of Evidence
1.
Preponderance of Evidence- evidence which is of greater weight or more
convincing or superior weight of evidence than that which is offered in opposition
to it.
2.
Clear and Convincing Evidence- refers to that measure or degree of proof
which will produce in the mind of the trier of facts a firm belief or conviction as to
the allegation sought to be established; it is more than preponderance but not to
the extent of such moral certainty as is required beyond reasonable doubt as in
criminal cases.
3.
Proof Beyond Reasonable Doubt-doubt engendered by an investigation of the
whole proof and an inability after such investigation to let the mind rest easy
upon the certainty of guilt. Requires moral certainty as to every proposition of
proof requisite to the offense.
4.
Substantial Evidence- that amount of relevant evidence which a reasonable
mind might accept as adequate to support a conclusion.
Technical Rules of Procedure
ARTICLE 221.
Technical rules not binding and prior resort to amicable
settlement.
In any proceeding before the Commission or any of the Labor Arbiters, the rules
of evidence prevailing in courts of law or equity shall not be controlling and it is the spirit
and intention of this Code that the Commission and its members and the Labor Arbiters
shall use every and all reasonable means to ascertain the facts in each case speedily
and objectively and without regard to technicalities of law or procedure, all in the interest
of due process. In any proceeding before the Commission or any Labor Arbiter, the
parties may be represented by legal counsel but it shall be the duty of the Chairman, any
Presiding Commissioner or Commissioner or any Labor Arbiter to exercise complete
control of the proceedings at all stages.
Any provision of law to the contrary notwithstanding, the Labor Arbiter shall exert
all efforts towards the amicable settlement of a labor dispute within his jurisdiction on or
before the first hearing. The same rule shall apply to the Commission in the exercise of
its original jurisdiction.

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- Appeal Procedure (Art 223); appeal fee & posting of bond; frivolous or dilatory appeals;
see NLRC En Banc Res. No. 08-07, Series of 2007 effective June 24, 2007 New Schedule
of Legal Fees
Appeal Procedure
ARTICLE 223.
Appeal. Decisions, awards, or orders of the Labor Arbiter are
final and executory unless appealed to the Commission by any or both parties
within ten (10) calendar days from receipt of such decisions, awards, or orders.
Such appeal may be entertained only on any of the following grounds:
(a)
If there is prima facie evidence of abuse of discretion on the part of the
Labor Arbiter;
(b)
If the decision, order or award was secured through fraud or coercion,
including graft and corruption;
(c)
If made purely on questions of law; and
(d)
If serious errors in the findings of facts are raised which would cause
grave or irreparable damage or injury to the appellant.
In case of a judgment involving a monetary award, an appeal by the
employer may be perfected only upon the posting of a cash or surety bond
issued by a reputable bonding company duly accredited by the Commission in
the amount equivalent to the monetary award in the judgment appealed from.
In any event, the decision of the Labor Arbiter reinstating a dismissed or
separated employee, insofar as the reinstatement aspect is concerned, shall
immediately be executory, even pending appeal. The employee shall either be
admitted back to work under the same terms and conditions prevailing prior to his
dismissal or separation or, at the option of the employer, merely reinstated in the
payroll. The posting of a bond by the employer shall not stay the execution for
reinstatement provided herein.
To discourage frivolous or dilatory appeals, the Commission or the Labor
Arbiter shall impose reasonable penalty, including fines or censures, upon the
erring parties.
In all cases, the appellant shall furnish a copy of the memorandum of
appeal to the other party who shall file an answer not later than ten (10) calendar
days from receipt thereof.
The Commission shall decide all cases within twenty (20) calendar days
from receipt of the answer of the appellee. The decision of the Commission shall
be final and executory after ten (10) calendar days from receipt thereof by the
parties.
Any law enforcement agency may be deputized by the Secretary of Labor
and Employment or the Commission in the enforcement of decisions, awards, or
orders
Appeal Fee
Section 5. Appeal Fee.
The appellant shall pay an appeal fee of One Hundred Fifty Pesos (P150.00)
to the Regional Arbitration Branch or Regional Office of origin, and the official
receipt of such payment shall form part of the records of the case.
Posting of Bond
Section 6. Bond.
In case the decision of the Labor Arbiter or the Regional Director involves a
monetary award, an appeal by the employer may be perfected only upon the posting of a

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bond, which shall either be in the form of cash deposit or surety bond equivalent in
amount to the monetary award, exclusive of damages and attorney's fees.
In case of surety bond, the same shall be issued by a reputable bonding
company duly accredited by the Commission or the Supreme Court, and shall be
accompanied by original or certified true copies of the following:
a)
a joint declaration under oath by the employer, his counsel, and the
bonding company, attesting that the bond posted is genuine, and shall be
in effect until final disposition of the case.
b)
an indemnity agreement between the employer-appellant and bonding
company;
c)
proof of security deposit or collateral securing the bond: provided, that a
check shall not be considered as an acceptable security;
d)
a certificate of authority from the Insurance Commission;
e)
certificate of registration from the Securities and Exchange Commission;
f)
certificate of authority to transact surety business from the Office of the
President;
g)
certificate of accreditation and authority from the Supreme Court; and
h)
notarized board resolution or secretary's certificate from the bonding
company showing its authorized signatories and their specimen
signatures.
A cash or surety bond shall be valid and effective from the date of deposit or
posting, until the case is finally decided, resolved or terminated, or the award
satisfied.This condition shall be deemed incorporated in the terms and conditions of the
surety bond, and shall be binding on the appellants and the bonding company.
The appellant shall furnish the appellee with a certified true copy of the said
surety bond with all the above-mentioned supporting documents.The appellee shall
verify the regularity and genuineness thereof and immediately report any irregularity to
the Commission.
Upon verification by the Commission that the bond is irregular or not genuine, the
Commission shall cause the immediate dismissal of the appeal, and censure or cite in
contempt the responsible parties and their counsels, or subject them to reasonable fine
or penalty.
No motion to reduce bond shall be entertained except on 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 the requisites
in the preceding paragraphs shall not stop the running of the period to perfect an appeal.
Frivolous or Dilatory Appeal
Art 223 Appeal
xxx
xxx
xxx
To discourage frivolous or dilatory appeals, the Commission or the Labor Arbiter
shall impose reasonable penalty, including fines or censures, upon the erring parties.
LCdismissal: fine or penalty
NLRC--- contempt: 1.) parties and 2) counsel
- NLRC; composition, powers and functions ( see RA 9347 amending Arts 212 to 216,
rationalizing the composition and function of the NLRC effective August 26, 2006; see
former EO No. 204, Series of 2003 Administrative Supervision of Secretary of Labor,
revoking EO No. 185 Series of 2003

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RA 9347
Art. 213.
National Labor Relations Commission.
There shall be a National Labor Relations Commission which shall be attached to
the Department of Labor and Employment solely for program and policy coordination,
composed of a Chairman and twenty-three (23) members. aTEHIC
Eight (8) members each shall be chosen only from among the nominees of the
workers and employers organizations, respectively. The Chairman and the seven (7)
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 organizations shall divest themselves of any affiliation with or interest in the
federation or association to which they belong.
The Commission may sit en banc or in eight (8) divisions, each composed of
three (3) members. The Commission shall sit en banc only for purposes of promulgating
rules and regulations governing the hearing and disposition of cases before any of its
divisions and regional branches and formulating policies affecting its administration and
operations. The Commission shall exercise its adjudicatory and all other powers,
functions and duties through its divisions. Of the eight (8) divisions, the first, second,
third, fourth, fifth and sixth divisions shall handle cases coming from the National Capital
Region and other parts of Luzon, and the seventh and eighth divisions, cases from
Visayas and Mindanao, respectively: Provided, That the Commission sitting en banc
may, on temporary or emergency basis, 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.
The divisions of the Commission shall have exclusive appellate jurisdiction over cases
within their respective territorial jurisdiction. TaISDA
The concurrence of two (2) Commissioners of a division shall be necessary for
the pronouncement of judgment or resolution. Whenever the required membership in a
division is not complete and the concurrence of two (2) 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.
The conclusions of a division on any case submitted to it for decision shall be
reached in consultation before the case is assigned to a member for the writing of the
opinion. It shall be mandatory for the division to meet for purposes of the consultation
ordained herein. A certification to this effect signed by the Presiding Commissioner of the
division shall be issued, and a copy thereof attached to the record of the case and
served upon the parties.
The Chairman shall be the Presiding Commissioner of the first division, and the
seven (7) other members from the public sector shall be the Presiding Commissioners of
the second, third, fourth, fifth, sixth, seventh and eighth divisions, respectively. In case of
the effective absence or incapacity of the Chairman, the Presiding Commissioner of the
second division shall be the Acting Chairman.
The Chairman, aided by the Executive Clerk of the Commission, shall have
exclusive administrative supervision over the Commission and its regional branches and
all its personnel, including the Labor Arbiters.
The Commission, when sitting en banc, shall be assisted by the same Executive
Clerk, and, when acting thru its Divisions, by said Executive Clerk for its first division and
seven (7) other Deputy Executive Clerks for the second, third, fourth, fifth, sixth, seventh
and eighth Divisions, respectively, in the performance of such similar or equivalent

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functions and duties as are discharged by the Clerk of Court and Deputy Clerks of Court
of the Court of Appeals.
The Commission and its eight (8) divisions shall be assisted by the Commission
Attorneys in its appellate and adjudicatory functions whose term shall be coterminous
with the Commissioners with whom they are assigned. The Commission Attorneys shall
be members of the Philippine Bar with at least one (1) year experience or exposure in
the field of labor-management relations. They shall receive annual salaries and shall be
entitled to the same allowances and benefits as those falling under Salary Grade twentysix (SG 26). There shall be as many Commission Attorneys as may be necessary for the
effective and efficient operation of the Commission but in no case more than three (3)
assigned to the Office of the Chairman and each Commissioner. EaHcDS
No Labor Arbiter shall be assigned to perform the functions of the Commission
Attorney nor detailed to the office of any Commissioner.
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. The Commission shall establish as
many regional branches as there are regional offices of the Department of Labor and
Employment, sub-regional branches or provincial extension units. There shall be as
many Labor Arbiters as may be necessary for the effective and efficient operation of the
Commission.
Art. 215.
Appointment and Qualifications.
The Chairman and other Commissioners shall be members of the Philippine Bar
and must have been engaged in the practice of law in the Philippines for at least fifteen
(15) years, with at least five (5) years experience or exposure in the field of labormanagement relations, and shall preferably be residents of the region where they shall
hold office. The Labor Arbiters shall likewise be members of the Philippine Bar and must
have been engaged in the practice of law in the Philippines for at least ten (10) years,
with at least five (5) years experience or exposure in the field of labor-management
relations.
The Chairman, the other Commissioners and the Labor Arbiters shall hold office
during good behavior until they reach the age of sixty-five (65) years, unless sooner
removed for cause as provided by law or become incapacitated to discharge the duties
of their office: Provided, however, That the President of the Republic of the Philippines
may extend the services of the Commissioners and Labor Arbiters up to the maximum
age of seventy (70) years upon the recommendation of the Commission en banc.
The Chairman, the Division Presiding Commissioners and other Commissioners
shall all be appointed by the President. Appointment to any vacancy in a specific division
shall come only from the nominees of the sector which nominated the predecessor. The
Labor Arbiters shall also be appointed by the President, upon recommendation of the
Commission en banc to a specific arbitration branch preferably in the region where they
are residents, and shall be subject to the Civil Service Law, rules and regulations:
Provided, That the Labor Arbiters who are presently holding office in the region where
they are residents shall be deemed appointed thereat.
The Chairman of the Commission shall appoint the staff and employees of the
Commission and its regional branches as the needs of the service may require, subject
to the Civil Service Law, rules and regulations, and upgrade their current salaries,
benefits and other emoluments in accordance with law.

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Art. 216.
Salaries, Benefits and Emoluments.
The Chairman and members of the Commission shall have the same rank,
receive an annual salary equivalent to, and be entitled to the same allowances,
retirement and benefits as those of the Presiding Justice and Associate Justices of the
Court of Appeals, respectively. Labor Arbiters shall have the same rank, receive an
annual salary equivalent to and be entitled to the same allowances, retirement and other
benefits and privileges as those of the Judges of the Regional Trial Courts. In no case,
however, shall the provision of this Article result in the diminution of the existing salaries,
allowances and benefits of the aforementioned officials.
EXECUTIVE ORDER NO. 204
DELEGATING TO THE SECRETARY OF LABOR AND EMPLOYMENT THE POWER
TO EXERCISE ADMINISTRATIVE SUPERVISION OVER THE NATIONAL LABOR
RELATIONS COMMISSION
WHEREAS, Executive power is vested in the President under Section 1, Article
VII of the Constitution and under Section 11, Chapter 3, Book II of Executive Order No.
292, otherwise known as the "Revised Administrative Code of 1987" (the "Administrative
Code");
WHEREAS, Section 17, Article VII of the Constitution provides that the President
shall have control of all executive departments, bureaus and offices and shall ensure
that the laws be faithfully executed; TSacID
WHEREAS, the National Labor Relations Commission [NLRC] which was
created by virtue of Presidential Decree No. 442, otherwise known as the "Labor Code of
the Philippines," is an agency under the Executive Department and was originally
envisaged as being an integral part of the Department (then Ministry) of Labor and
Employment [DOLE] under the administrative supervision of the Secretary of Labor and
Employment ["Secretary of Labor"];
WHEREAS, upon the issuance of the Administrative Code, the NLRC, by virtue
of Section 25, Chapter 6, Title VII, Book IV thereof, became an agency attached to the
DOLE for policy and program coordination and administrative supervision;
WHEREAS, Article 213 of the Labor Code and Section 25, Chapter 6, Title VII,
Book IV of the Administrative Code were amended by Republic Act No. 6715 approved
on March 2, 1989, which provides that the NLRC shall be attached to the DOLE for
program and policy coordination only and transferred administrative supervision over the
NLRC, all its regional branches and personnel to the NLRC Chairman;
WHEREAS, Section 16, Article III of the Constitution guarantees the right of all
persons to a speedy disposition of their cases before all judicial, quasi-judicial and
administrative bodies;
WHEREAS, after consultations with the relevant sectors, the Secretary of Labor
has recommended that the President, pursuant to her powers under the Constitution and
existing laws, delegate to the Secretary of Labor the power to exercise administrative
supervision over the NLRC and all its regional and sub-regional branches or provincial
extension units with the objective of further improving the rate of disposition of pending
cases and enhance existing measures for the prevention of graft and corruption within
the said agency; SEIDAC
NOW, THEREFORE, I, GLORIA MACAPAGAL ARROYO, President of the
Republic of the Philippines, by virtue of the powers vested in me by the Constitution and
existing laws, do hereby order:

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SECTION 1. Delegation to the Secretary of Labor. The power of the President
under Section 17, Article VII of the Constitution and as the administrative head of
the Government to exercise administrative supervision over the NLRC, its
regional branches and all its personnel, including the Executive Labor Arbiters
and Labor Arbiters, is hereby delegated to the Secretary of Labor, with the
objective of further improving the rate of disposition of cases pending before it
and its regional and sub-regional branches or provincial extension units and to
enhance existing measures for the prevention of graft and corruption within the
said agency. cDIaAS
For this purpose, the Secretary of Labor, in the exercise of such
delegated authority, shall, among others:
a.
Generally oversee the operations of the NLRC and its regional
and sub-regional branches or provincial extension units for the
purpose of insuring that cases pending before them are decided
or resolved expeditiously;
b.
Enhance existing measures within the agency, or initiate new
ones, to prevent graft and corruption, including but not limited to,
the conduct of management audits, performance evaluations and
inspections to determine compliance with established policies,
standards and guidelines;
c.
To take such action as may be necessary for the proper
performance of official functions, including rectification of
violations, abuses and other forms of maladministration; and
d.
Investigate, on its own or upon complaint, matters involving
disciplinary action against any of the Presidential appointees in
the NLRC, in accordance with existing laws, rules and regulations.
After completing his/her investigation, the Secretary of Labor shall
submit a report to the President on the investigation conducted
with a recommendation as to the penalty to be imposed or other
action to be taken, including referral to the Presidential Anti-Graft
Commission [PAGC], the Office of the Ombudsman or any other
office,
committee,
commission,
agency,
department,
instrumentality or branch of the government for appropriate action.
The delegation of authority conferred herein upon the Secretary of Labor
shall not extend to the power to review, reverse, revise, or modify the decisions
of the NLRC in the exercise of its quasi-judicial functions [cf. Section 38(2)(b),
Chapter 7, Book IV, Administrative Code].
SECTION 2. Report to the President. The NLRC, through its Chairman, shall
submit a report to the President, through the Secretary of Labor, within thirty (30)
days from issuance of this Executive Order, on the following matters:
a.
Performance Report/Audit for the last five (5) years, including list
of pending cases and cases disposed of within the said period by
the NLRC en banc, by Division and by the Labor Arbiters in each
of its regional and sub-regional branches or provincial extension
units; SEIDAC
b.
Detailed Master Plan on how to liquidate its backlog of cases with
clear timetables to clean up its dockets within six (6) months from
the issuance hereof;
c.
Complete inventory of its assets and list of personnel indicating
their present positions and stations; and

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d.

Such other matters as may be required by the President upon the


recommendation of the Secretary of Labor.
SECTION 3. Rules and Regulations. The Secretary of Labor, in consultation with
the Chairman of the NLRC, is hereby authorized to issue rules and regulations
for the effective implementation of the provisions of this Executive Order, subject
to approval by the President.
SECTION 4. Repealing Clause. Executive Order No. 185 issued on March 10,
2003 is hereby revoked. All other executive issuances, rules and regulations or
parts thereof which are inconsistent with the provisions of this Executive Order
are hereby repealed, amended, or modified accordingly. SCHIcT
SECTION 5. Effectivity. This Executive Order shall take effect immediately upon
the completion of its publication in the Official Gazette or in a newspaper of general
circulation in the country.
City of Manila, May 5, 2003.
Published in Today on May 9, 2003.
- Finality of NLRC & Labor Arbiters decision & Execution of monetary judgment (see
NLRC Manual on Execution of Judgment); pre-execution conference; quashal of writ of
execution & Third Party claims
Finality of NLRC & Labor Arbiters decision & Execution of monetary judgment
Section 1. Execution Upon Finality of Decision or Order.
a)
A writ of execution may be issued motu proprio or on motion, upon a decision or
order that finally disposes of the action or proceedings after the parties and their
counsels or authorized representatives are furnished with copies of the decision or order
in accordance with these Rules, but only after the expiration of the period to appeal if no
appeal has been filed, as shown by the certificate of finality.If an appeal has been filed, a
writ of execution may be issued when there is an entry of judgment as provided for in
Section 14 of Rule VII.
b)
No motion for execution shall be entertained nor a writ of execution be issued
unless the Labor Arbiter or the Commission is in possession of the records of the case
which shall include an entry of judgment if the case was appealed; except that, as
provided for in Section 14 of Rule V and Section 6 of this Rule, and in those cases
where partial execution is allowed by law, the Labor Arbiter shall retain duplicate original
copies of the decision to be implemented and proof of service thereof for the purpose of
immediate enforcement.
Section 5. Execution of Monetary Judgment.
a)
Immediate payment on demand. - The Sheriff shall enforce a monetary judgment
by demanding the immediate payment of the full amount stated in the writ of execution
and all lawful fees from the losing party or any other person required by law to obey the
same.
b)
In the event of failure or refusal of the losing party to pay the judgment award, the
Sheriff shall immediately proceed against the cash deposit or surety bond posted by the
losing party, if any;

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c)
If the bonding company refuses to comply with the writ of execution, then its
president and officers or authorized representatives shall be cited for contempt, and the
bonding company shall be barred from transacting business with the Commission;
d)
Should the cash deposit or surety bond be insufficient, or in case the surety bond
cannot be proceeded against for any reason, the Sheriff shall, within five (5) days from
demand, execute the monetary judgment by levying on the property, personal and real,
of the losing party not exempt from execution, sufficient to cover the judgment award,
which may be disposed of for value at a public auction to the highest bidder.
e)
Proceeds of execution shall be deposited with the Cashier of the concerned
Division or Regional Arbitration Branch, or with an authorized depositary bank. Where
payment is made in the form of a check, the same shall be payable to the Commission.
Pre-execution Conference
Section 2. Pre-Execution Conference. - Within two (2) working days from receipt of a
motion for the issuance of a writ of execution, and subject to Section 1, paragraph (b) of
this Rule, the Labor Arbiter shall schedule a pre-execution conference or hearing to
thresh out matters relevant to execution, including the computation of the award.
Quashal of the writ of execution and third party claims
Section 11. Resolution of Motion to Quash. The mere filing of a motion to quash shall
not stay execution proceedings.A motion to quash shall be resolved by the Labor Arbiter
within ten (10) working days from submission of said motion for resolution.
Section 12. Third Party Claim. - A third party claim shall be filed within five (5) days from the last
day of posting or publication of the notice of execution sale; otherwise the claim shall be forever
barred.The third party claimant shall execute an affidavit stating his title to the property or right
to possession thereof with supporting evidence, and shall file the same with the Sheriff and the
Commission or Labor Arbiter who issued the writ of execution.Upon receipt of the third party
claim, all proceedings, with respect to the execution of the property subject of such claim, shall
automatically be suspended.The Labor Arbiter who issued the writ may require the third party
claimant to adduce additional evidence in support of his third party claim and to post a cash or
surety bond equivalent to the amount of his claim, as provided for in Section 6 of Rule VI,
without prejudice to the posting by the prevailing party of a supersedeas bond in an amount
equivalent to that posted by the third party claimant.The Labor Arbiter shall resolve the propriety
of such third party claim within ten (10) working days from submission of said claim for
resolution
28. Rule 65, Rules of Civil Procedure:
Section 1. Petition for certiorari.
When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted
without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack
or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in
the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper
court, alleging the facts with certainty and praying that judgment be rendered annulling or

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modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs
as law and justice may require.
The petition shall be accompanied by a certified true copy of the judgment, order or resolution
subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a
sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule
46.
Sec. 2. Petition for prohibition.
When the proceedings of any tribunal, corporation, board, officer or person, whether exercising
judicial, quasi-judicial or ministerial functions, are without or in excess of its or his jurisdiction, or
with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal
or any other plain, speedy, and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty
and praying that judgment be rendered commanding the respondent to desist from further
proceedings in the action or matter specified therein, or otherwise granting such incidental
reliefs as law and justice may require.
The petition shall likewise be accompanied by a certified true copy of the judgment, order or
resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto,
and a sworn certification of non-forum shopping as provided in the third paragraph of section 3,
Rule 46.
Sec. 3. Petition for mandamus.
When any tribunal, corporation, board, officer or person unlawfully neglects the performance of
an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or
unlawfully excludes another from the use and enjoyment of a right or office to which such other
is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of
law, the person aggrieved thereby may file a verified petition in the proper court, alleging the
facts with certainty and praying that judgment be rendered commanding the respondent,
immediately or at some other time to be specified by the court, to do the act required to be done
to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by
reason of the wrongful acts of the respondent.
The petition shall also contain a sworn certification of non-forum shopping as provided in the
third paragraph of section 3, Rule 46.
Sec. 4. Where petition filed.
The petition may be filed not later than sixty (60) days from notice of the judgment, order or
resolution sought to be assailed in the Supreme Court or, if it relates to the acts or omissions of
a lower court or of a corporation, board, officer or person, in the Regional Trial Court exercising
jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed in the
Court of Appeals whether or not the same is in aid of its appellate jurisdiction, or in the
Sandiganbayan if it is in aid of its jurisdiction. If it involves the acts or omissions of a quasijudicial agency, and unless otherwise provided by law or these Rules, the petition shall be filed
in and cognizable only by the Court of Appeals.
Sec. 5. Respondents and costs in certain cases.
When the petition filed relates to the acts or omissions of a judge, court, quasi-judicial agency,
tribunal, corporation, board, officer or person, the petitioner shall join, as private respondent or
respondents with such public respondent or respondents, the person or persons interested in
sustaining the proceedings in the court; and it shall be the duty of such private respondents to
appear and defend, both in his or their own behalf and in behalf of the public respondent or
respondents affected by the proceedings, and the costs awarded in such proceedings in favor of
the petitioner shall be against the private respondents only, and not against the judge, court,

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quasi-judicial agency, tribunal, corporation, board, officer or person impleaded as public
respondent or respondents.
Unless otherwise specifically directed by the court where the petition is pending, the public
respondents shall not appear in or file an answer or comment to the petition or any pleading
therein. If the case is elevated to a higher court by either party, the public respondents shall be
included therein as nominal parties. However, unless otherwise specifically directed by the
court, they shall not appear or participate in the proceedings therein.
Sec. 6. Order to comment.
If the petition is sufficient in form and substance to justify such process, the court shall issue an
order requiring the respondent or respondents to comment on the petition within ten (10) days
from receipt of a copy thereof. Such order shall be served on the respondents in such manner
as the court may direct, together with a copy of the petition and any annexes thereto.
In petitions for certiorari before the Supreme Court and the Court of Appeals, the provisions of
section 2, Rule 56, shall be observed. Before giving due course thereto, the court may require
the respondents to file their comment to, and not a motion to dismiss, the petition. Thereafter,
the court may require the filing of a reply and such other responsive or other pleadings as it may
deem necessary and proper.
Sec. 7. Expediting proceedings; injunctive relief.
The court in which the petition is filed may issue orders expediting the proceedings, and it may
also grant a temporary restraining order or a writ of preliminary injunction for the preservation of
the rights of the parties pending such proceedings. The petition shall not interrupt the course of
the principal case unless a temporary restraining order or a writ of preliminary injunction has
been issued against the public respondent from further proceeding in the case.
Sec. 8. Proceedings after comment is filed.
After the comment or other pleadings required by the court are filed, or the time for the filing
thereof has expired, the court may hear the case or require the parties to submit memoranda. If
after such hearing or submission of memoranda or the expiration of the period for the filing
thereof the court finds that the allegations of the petition are true, it shall render judgment for the
relief prayed for or to which the petitioner is entitled.
The court, however, may dismiss the petition if it finds the same to be patently without merit,
prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to
require consideration.
Sec. 9. Service and enforcement of order or judgment.
A certified copy of the judgment rendered in accordance with the last preceding section shall be
served upon the court, quasi-judicial agency, tribunal, corporation, board, officer or person
concerned in such manner as the court may direct, and disobedience thereto shall be punished
as contempt. An execution may issue for any damages or costs awarded in accordance with
section 1 of Rule 39.
29. Rule 43, Rules of Civil Procedure:
Section 1. Scope.
This Rule shall apply to appeals from judgments or final orders of the Court of Tax Appeals and
from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency
in the exercise of its quasi-judicial functions. Among these agencies are the Civil Service
Commission, Central Board of Assessment Appeals, Securities and Exchange Commission,
Office of the President, Land Registration Authority, Social Security Commission, Civil
Aeronautics Board, Bureau of Patents, Trademarks and Technology Transfer, National
Electrification Administration, Energy Regulatory Board, National Telecommunications

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Commission, Department of Agrarian Reform under Republic Act No. 6657, Government
Service Insurance System, Employees Compensation Commission, Agricultural Inventions
Board, Insurance Commission, Philippine Atomic Energy Commission, Board of Investments,
Construction Industry Arbitration Commission, and voluntary arbitrators authorized by law.
Sec. 2. Cases not covered.
This Rule shall not apply to judgments or final orders issued under the Labor Code of the
Philippines.
Sec. 3. Where to appeal.
An appeal under this Rule may be taken to the Court of Appeals within the period and in the
manner herein provided, whether the appeal involves questions of fact, of law, or mixed
questions of fact and law.
Sec. 4. Period of appeal.
The appeal shall be taken within fifteen (15) days from notice of the award, judgment, final order
or resolution, or from the date of its last publication, if publication is required by law for its
effectivity, or of the denial of petitioners motion for new trial or reconsideration duly filed in
accordance with the governing law of the court or agency a quo. Only one (1) motion for
reconsideration shall be allowed. Upon proper motion and the payment of the full amount of the
docket fee before the expiration of the reglementary period, the Court of Appeals may grant an
additional period of fifteen (15) days only within which to file the petition for review. No further
extension shall be granted except for the most compelling reason and in no case to exceed
fifteen (15) days.
Sec. 5. How appeal taken.
Appeal shall be taken by filing a verified petition for review in seven (7) legible copies with the
Court of Appeals, with proof of service of a copy thereof on the adverse party and on the court
or agency a quo. The original copy of the petition intended for the Court of Appeals shall be
indicated as such by the petitioner.
Upon the filing of the petition, the petitioner shall pay to the clerk of court of the Court of Appeals
the docketing and other lawful fees and deposit the sum of P500.00 for costs. Exemption from
payment of docketing and other lawful fees and the deposit for costs may be granted by the
Court of Appeals upon a verified motion setting forth valid grounds therefor. If the Court of
Appeals denies the motion, the petitioner shall pay the docketing and other lawful fees and
deposit for costs within fifteen (15) days from notice of the denial.
Sec. 6. Contents of the petition.
The petition for review shall (a) state the full names of the parties to the case, without
impleading the court or agencies either as petitioners or respondents; (b) contain a concise
statement of the facts and issues involved and the grounds relied upon for the review; (c) be
accompanied by a clearly legible duplicate original or a certified true copy of the award,
judgment, final order or resolution appealed from, together with certified true copies of such
material portions of the record referred to therein and other supporting papers; and (d) contain a
sworn certification against forum shopping as provided in the last paragraph of section 2, Rule
42. The petition shall state the specific material dates showing that it was filed within the period
fixed herein.
Sec. 7. Effect of failure to comply with requirements.
The failure of the petitioner to comply with any of the foregoing requirements regarding the
payment of the docket and other lawful fees, the deposit for costs, proof of service of the
petition, and the contents of and the documents which should accompany the petition shall be
sufficient ground for the dismissal thereof.

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Sec. 8. Action on the petition.
The Court of Appeals may require the respondent to file a comment on the petition, not a motion
to dismiss, within ten (10) days from notice, or dismiss the petition if it finds the same to be
patently without merit, prosecuted manifestly for delay, or that the questions raised therein are
too unsubstantial to require consideration.
Sec. 9. Contents of comment.
The comment shall be filed within ten (10) days from notice in seven (7) legible copies and
accompanied by clearly legible certified true copies of such material portions of the record
referred to therein together with other supporting papers. The comment shall (a) point out
insufficiencies or inaccuracies in petitioners statement of facts and issues; and (b) state the
reasons why the petition should be denied or dismissed. A copy thereof shall be served on the
petitioner, and proof of such service shall be filed with the Court of Appeals.
Sec. 10. Due course.
If upon the filing of the comment or such other pleadings or documents as may be required or
allowed by the Court of Appeals or upon the expiration of the period for the filing thereof, and on
the basis of the petition or the records the Court of Appeals finds prima facie that the court or
agency concerned has committed errors of fact or law that would warrant reversal or
modification of the award, judgment, final order or resolution sought to be reviewed, it may give
due course to the petition; otherwise, it shall dismiss the same. The findings of fact of the court
or agency concerned, when supported by substantial evidence, shall be binding on the Court of
Appeals.
Sec. 11. Transmittal of record.
Within fifteen (15) days from notice that the petition has been given due course, the Court of
Appeals may require the court or agency concerned to transmit the original or a legible certified
true copy of the entire record of the proceeding under review. The record to be transmitted may
be abridged by agreement of all parties to the proceeding. The Court of Appeals may require or
permit subsequent correction of or addition to the record.
Sec. 12. Effect of appeal.
The appeal shall not stay the award, judgment, final order or resolution sought to be reviewed
unless the Court of Appeals shall direct otherwise upon such terms as it may deem just.
Sec. 13. Submission for decision.
If the petition is given due course, the Court of Appeals may set the case for oral argument or
require the parties to submit memoranda within a period of fifteen (15) days from notice. The
case shall be deemed submitted for decision upon the filing of the last pleading or memorandum
required by these Rules or by the Court of Appeals.
30. Rule 45, Rules of Civil Procedure:
Section 1. Filing of petition with Supreme Court.
A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court
of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by
law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall
raise only questions of law which must be distinctly set forth.
Sec. 2. Time for filing; extension.
The petition shall be filed within fifteen (15) days from notice of the judgment or final order or
resolution appealed from, or of the denial of the petitioners motion for new trial or
reconsideration filed in due time after notice of the judgment. On motion duly filed and served,
with full payment of the docket and other lawful fees and the deposit for costs before the
expiration of the reglementary period, the Supreme Court may for justifiable reasons grant an
extension of thirty (30) days only within which to file the petition.

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Sec. 3. Docket and other lawful fees; proof of service of petition.
Unless he has theretofore done so, the petitioner shall pay the corresponding docket and other
lawful fees to the clerk of court of the Supreme Court and deposit the amount of P500.00 for
costs at the time of the filing of the petition. Proof of service of a copy thereof on the lower court
concerned and on the adverse party shall be submitted together with the petition.
Sec. 4. Contents of petition.
The petition shall be filed in eighteen (18) copies, with the original copy intended for the court
being indicated as such by the petitioner, and shall (a) state the full name of the appealing party
as the petitioner and the adverse party as respondent, without impleading the lower courts or
judges thereof either as petitioners or respondents; (b) indicate the material dates showing
when notice of the judgment or final order or resolution subject thereof was received, when a
motion for new trial or reconsideration, if any, was filed and when notice of the denial thereof
was received; (c) set forth concisely a statement of the matters involved, and the reasons or
arguments relied on for the allowance of the petition; (d) be accompanied by a clearly legible
duplicate original, or a certified true copy of the judgment or final order or resolution certified by
the clerk of court of the court a quo and the requisite number of plain copies thereof, and such
material portions of the record as would support the petition; and (e) contain a sworn
certification against forum shopping as provided in the last paragraph of section 2, Rule 42.
Sec. 5. Dismissal or denial of petition.
The failure of the petitioner to comply with any of the foregoing requirements regarding the
payment of the docket and other lawful fees, deposit for costs, proof of service of the petition,
and the contents of and the documents which should accompany the petition shall be sufficient
ground for the dismissal thereof.
The Supreme Court may on its own initiative deny the petition on the ground that the appeal is
without merit, or is prosecuted manifestly for delay, or that the questions raised therein are too
unsubstantial to require consideration.
Sec. 6. Review discretionary.
A review is not a matter of right, but of sound judicial discretion, and will be granted only when
there are special and important reasons therefor. The following, while neither controlling nor fully
measuring the courts discretion, indicate the character of the reasons which will be considered:
(a) When the court a quo has decided a question of substance, not theretofore determined by
the Supreme Court, or has decided it in a way probably not in accord with law or with the
applicable decisions of the Supreme Court; or
(b) When the court a quo has so far departed from the accepted and usual course of judicial
proceedings, or so far sanctioned such departure by a lower court, as to call for an exercise of
the power of supervision.
Sec. 7. Pleadings and documents that may be required; sanctions.
For purposes of determining whether the petition should be dismissed or denied pursuant to
section 5 of this Rule, or where the petition is given due course under section 8 hereof, the
Supreme Court may require or allow the filing of such pleadings, briefs, memoranda or
documents as it may deem necessary within such periods and under such conditions as it may
consider appropriate, and impose the corresponding sanctions in case of non-filing or
unauthorized filing of such pleadings and documents or non-compliance with the conditions
therefor.
Sec. 8. Due course; elevation of records.
If the petition is given due course, the Supreme Court may require the elevation of the complete
record of the case or specified parts thereof within fifteen (15) days from notice.

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Sec. 9. Rule applicable to both civil and criminal cases.
The mode of appeal prescribed in this Rule shall be applicable to both civil and criminal cases,
except in criminal cases where the penalty imposed is death, reclusion perpetua or life
imprisonment.

FINALS

12.

RIGHT TO SELF ORGANIZATION

1. Scope and nature of employees right


2. Constitutional Basis
Article III Section 8 (1987 Constitution)
The right of the people in the public and private sectors to form unions, associations or
societies for purposes not contrary to law shall not be abridged.
Article XIII Section 3 (1987 Constitution)
The State shall afford full protection to labor, local and overseas, organized and
unorganized, and promote full employment and equality of employment opportunities for all.
It shall guarantee the rights of all workers to self-organization, collective
bargaining and negotiations, and peaceful concerted activities, including the right to
strike in accordance with law. They shall be entitled to security of tenure, humane conditions of
work, and a living wage. They shall also participate in policy and decision-making processes
affecting their rights and benefits as may be provided by law.
The State shall promote the principle of shared responsibility between workers and
employers and the preferential use of voluntary modes in settling disputes, including
conciliation, and shall enforce their mutual compliance therewith to foster industrial peace.
The State shall regulate the relations between workers and employers, recognizing the
right of labor to its just share in the fruits of production and the right of enterprises to reasonable
returns to investments, and to expansion and growth.
3. Statutory Basis
Article 243 Coverage and Employees Right to Self Organization
All persons employed in commercial, industrial and agricultural enterprises and in
religious, charitable, medical or educational institutions whether operating for profit or not shall
have the right to self organization and to form join or assist labor organizations of their own
choosing for purposes of collective bargaining. Ambulant, intermittent and itinerant workers, selfemployed people, rural workers and those without any definite employers may form labor
organizations for their mutual aid and protection.

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Article 244 Right of the Employees in the Public Service


Employees of governed corporations established under the Corporation Code shall
have the right to organize and to bargain collectively with their respective employers. All
other employees in the civil service shall have the right to form associations for purposes
not contrary to law.
DO. No. 40-03 Series of 2003, DO. No. 40-A-3, 40-B-03 and 40-C-05 are the
implementing rules issued by the DOLE to enforce the right to association.
Recently Congress enacted RA 9481 otherwise known as AN ACT STRENGTHENING
THE WORKERS' CONSTITUTIONAL RIGHT TO SELF-ORGANIZATION, AMENDING FOR
THE PURPOSE PRESIDENTIAL DECREE NO. 442, AS AMENDED, OTHERWISE KNOWN AS
THE LABOR CODE OF THE PHILIPPINES
4. Two Concepts of the Right to Association
1.) Right to form, join or assist labor organization.
2.) Right to engage in lawful concerted activities.
TWO BROAD NOTIONS ON THE RIGHT TO JOIN OR FORM ASSOSCIATIONS
1.) Liberty or freedom the absence of legal restraint whereby an employee may act for
himself without being circumvented by law.
2.) Power to join or not to join a person may choose to join and may not be compelled to
join a labor organization or he may disassociate himself if he is already a member (NB!! There
are limitations such as a Closed-Shop Agreement.
Union Security clause or Closed Shop Agreement
Article 248 (e)
Nothing in this Code or in any other law shall stop the parties from requiring membership
in the recognized collective bargaining agent as a condition for employment except those
employees who are already members of another union at the time of the collective
bargaining agreement.
Note: However in RA 3350 otherwise known as the Industrial Peace Act -but such agreement
shall not cover members of any religious sects which prohibit affiliation of their members
in any such labor organization. The free exercise of religious profession or belief is
superior to contract rights. In case of conflicts the latter must yield to the former (Victoriano
vs. Elizalde Rope Workers Union et al)
5. Two-Fold Purpose of Exercise of Right
1.) Collective Bargaining- CBA refers to the contract between the legitimate labor union and
the employer concerning wages, hours of work and all other terms and conditions in the
bargaining unit.
2.) Mutual Aid and Protection6. Republic Act 9481

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REPUBLIC ACT NO. 9481
AN ACT STRENGTHENING THE WORKERS' CONSTITUTIONAL RIGHT TO SELFORGANIZATION, AMENDING FOR THE PURPOSE PRESIDENTIAL DECREE NO. 442, AS
AMENDED, OTHERWISE KNOWN AS THE LABOR CODE OF THE PHILIPPINES
SECTION 1. Article 234 of Presidential Decree No. 442, as amended, otherwise known as the
Labor Code of the Philippines, is hereby further amended to read as follows:
"ART. 234. Requirements of Registration. - A federation, national union or industry or trade
union center or an independent union shall acquire legal personality and shall be entitled to
the rights and privileges granted by law to legitimate labor organizations upon issuance of
the certificate of registration based on the following requirements:
(a) Fifty pesos (P50.00) registration fee;
(b) The 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;
(c) In case the applicant is an independent union, the names of all its members
comprising at least twenty percent (20%) of all the employees in the bargaining unit
where it seeks to operate;
(d) If the applicant union has been in existence for one or more years, copies of its
annual financial reports; and
(e) Four copies of the constitution and by-laws of the applicant union, minutes of its
adoption or ratification, and the list of the members who participated in it."
SEC. 2. A new provision is hereby inserted into the Labor Code as Article 234-A to read as
follows:
"ART. 234-A. Chartering and Creation of a Local Chapter. - 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 the date it was issued a charter
certificate.
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:
(a) The names of the chapter's officers, their addresses, and the principal office of the
chapter; and
(b) The chapter's constitution and by-laws: Provided, That where the chapter's
constitution and by-laws are the same as that of the federation or the national union, this
fact shall be indicated accordingly.
The additional supporting requirements shall be certified under oath by the secretary or
treasurer of the chapter and attested by its president."
SEC. 3. Article 238 of the Labor Code is hereby amended to read as follows:
"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 hereof."
SEC. 4. A new provision is hereby inserted into the Labor Code as Article 238-A t o read as
follows:

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"ART. 238-A. Effect of a Petition for Cancellation of Registration. - 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 election.
In case of cancellation, nothing herein shall restrict the right of the union to seek just and
equitable remedies in the appropriate courts."
SEC. 5. Article 239 of the Labor Code is amended to read as follows:
"ART. 239. Grounds for Cancellation of Union Registration. - The following may constitute
grounds for cancellation of union registration:
(a) Misrepresentation, false statement or fraud in connection with the adoption or
ratification of the constitution and by-laws or amendments thereto, the minutes of
ratification, and the list of members who took part in the ratification;
(b) Misrepresentation, false statements or fraud in connection with the election of
officers, minutes of the election of officers, and the list of voters;
(c) Voluntary dissolution by the members."
SEC. 6. A new provision, Article 239-A is inserted into the Labor Code to read as follows:
"ART. 239-A. Voluntary Cancellation of Registration. - The registration of a legitimate labor
organization may be cancelled by the organization itself. Provided, That at least two-thirds of
its general membership votes, in a meeting duly called for that purpose to dissolve the
organization: Provided, further, That an application to cancel registration is thereafter
submitted by the board of the organization, attested to by the president thereof."
SEC. 7. A new provision, Article 242-A is hereby inserted into the Labor Code to read as follows:
"ART. 242-A. Reportorial Requirements. - The following are documents required to be
submitted to the Bureau by the legitimate labor organization concerned:
(a) Its constitution and by-laws, or amendments thereto, the minutes of ratification, and
the list of members who took part in the ratification of the constitution and by-laws within
thirty (30) days from adoption or ratification of the constitution and by-laws or
amendments thereto;
(b) Its list of officers, minutes of the election of officers, and list of voters within thirty (30)
days from election;
(c) Its annual financial report within thirty (30) days after the close of every fiscal year;
and
(d) Its list of members at least once a year or whenever required by the Bureau.
Failure to comply with the above 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."
SEC. 8. Article 245 of the Labor Code is hereby amended to read as follows:
"ART. 245. Ineligibility of Managerial Employees to Join any Labor Organization; Right of
Supervisory Employees. - Managerial employees are not eligible to join, assist or form any
labor organization. Supervisory employees shall not be eligible for membership in the
collective bargaining unit of the rank-and-file employees but may join, assist or form
separate collective bargaining units and/or legitimate labor organizations of their own. The
rank and file union and the supervisors' union operating within the same establishment may
join the same federation or national union."
SEC. 9. A new provision, Article 245-A is inserted into the Labor Code to read as follows:

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"ART. 245-A. Effect of Inclusion as Members of Employees Outside the Bargaining Unit. The inclusion as union members of employees outside the bargaining unit shall not be a
ground for the cancellation of the registration of the union. Said employees are automatically
deemed removed from the list of membership of said union."
SEC. 10. Article 256 of the Labor Code is hereby amended to read as follows:
"ART. 256. Representation Issue in Organized Establishments. - In organized
establishments, when a verified petition questioning the majority status of the incumbent
bargaining agent is filed by any legitimate labor organization including a national union or
federation which has already issued a charter certificate to its local chapter participating in
the certification election or a local chapter which has been issued a charter certificate by the
national union or federation before the Department of Labor and Employment within the
sixty (60)-day period before the expiration of the collective bargaining agreement, the MedArbiter shall automatically order an election by secret ballot when the verified petition is
supported by the written consent of at least twenty-five percent (25%) of all the employees
in the bargaining unit to ascertain the will of the employees in the appropriate bargaining
unit. To have a valid election, at least a majority of all eligible voters in the unit must have
cast their votes. The labor union receiving the majority of the valid votes cast shall be
certified as the exclusive bargaining agent of all the workers in the unit. When an election
which provides for three or more choices results in no choice receiving a majority of the valid
votes cast, a run-off election shall be conducted between the labor unions receiving the two
highest number of votes: Provided, That the total number of votes for all contending unions
is at least fifty percent (50%) of the number of votes cast. In cases where the petition was
filed by a national union or federation, it shall not be required to disclose the names of the
local chapter's officers and members.
At the expiration of the freedom period, the employer shall continue to recognize the
majority status of the incumbent bargaining agent where no petition for certification election
is filed."
SEC. 11. Article 257 of the Labor Code is hereby amended to read as follows:
"ART. 257. Petitions in Unorganized Establishments. - In any establishment where there is
no certified bargaining agent, a certification election shall automatically be conducted by the
Med-Arbiter upon the filing of a petition by any legitimate labor organization, including a
national union or federation which has already issued a charter certificate to its
1ocal/chapter participating in the certification election or a local/chapter which has been
issued a charter certificate by the national union or federation. In cases where the petition
was filed by a national union or federation, it shall not be required to disclose the names of
the local chapter's officers and members."
SEC. 12. A new provision, Article 258-A is hereby inserted into the Labor Code to read as
follows:
"ART. 258-A. Employer as Bystander. - In all cases, whether the petition for certification
election is filed by an employer or a legitimate labor organization, the employer shall not be
considered a party thereto with a concomitant right to oppose a petition for certification
election. The employer's participation in such proceedings shall be limited to: (1) being
notified or informed of petitions of such nature; and (2) submitting the list of
employees during the pre-election conference should the Med-Arbiter act favorably
on the petition."
SEC. 13. Separability Clause. - If any part, section or provision of this Act shall be held invalid
or unconstitutional, the other provisions shall not be affected thereby.

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SEC. 14. Repealing Clause. - Presidential Decree No. 442, as amended, otherwise known as
the Labor Code of the Philippines, and all other acts, laws, presidential issuances, rules and
regulations are hereby repealed, modified or amended accordingly.
SEC. 15. Effectivity Clause. - This Act shall take effect fifteen (15) days after its publication in
the Official Gazette or in at least two newspapers of general circulation.
7. Article 246 Non Abridgement of Right to Self- Organization
It shall be unlawful for any person to restrain, coerce, discriminate against or unduly
interfere with employees and workers in their exercise of the right to self-organization. Such
right shall include the right to form, join or assist labor organization for the purpose of collective
bargaining through representatives of their own choosing and to engage in lawful concerted
activities for the same purpose or for their mutual aid or protection subject to the provision in
Article 264 of this code
Note:This right to self organization is protected by law and should not be abridged or curtailed.
The code says that an act tending to weaken or defeat this right is unlawful and is considered as
an Unfair Labor Practice and shall be dealt with by law.
8. Uinon Membership and Formation of Union
ART. 245. Ineligibility of Managerial Employees to Join any Labor Organization; Right of
Supervisory Employees.
Managerial employees are not eligible to join, assist or form any labor organization.
Supervisory employees shall not be eligible for membership in the collective bargaining unit of
the rank-and-file employees but may join, assist or form separate collective bargaining units
and/or legitimate labor organizations of their own.
(New provision in RA 9481)
The rank and file union and the supervisors union operating within the same
establishment may join the same federation or national union.
Note: (Also a new provision 245-A is inserted in the Labor Code which provides)
ART. 245-A. Effect of Inclusion as Members of Employees Outside the Bargaining Unit.
The inclusion as union members of employees outside the bargaining unit shall not be a
ground for the cancellation of the registration of the union. Said employees are automatically
deemed removed from the list of membership of said union.
WHO ARE QUALIFIED TO BE UNION MEMBERS?( DO 40-03; 40-A-03; 40-B-03)
1.) All persons employed in commercial, industrial and agricultural enterprises including
2.) Employees of government owned or controlled corporations without original charters
established under the Corporation Code.
3.) Employees of religious, charitable medical or education institutions operating for profit or not
4.) Alien employees with valid working permits issued by the Department if they are nationals of
a country which grants the same or similar rights to Filipino workers as certified by the
Department of Foreign Affairs. (Reciprocity rule)
5.) All other workers including ambulant, intermittent and other workers, the self-employed
people, rural workers and those without any definite employers may form labor organizations for
their mutual aid and protection and other legitimate purposes except collective bargaining.

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Note: Everybody can exercise their right to association whether in the public or private sector.
DISQUALIFICATIONS:
1.) Employees of Government corporations established through special charters
Note: Only insofar as collective bargaining is concerned
2.) Managerial employees
The rationale for this inhibition has been state to be because if these managerial
employees will belong to or be affiliated with a Union, the latter might not be assured of their
loyalty to the union in view of evident Conflict in interest. The Union can also be companydominated with the presence of managerial employees in union membership. (United PepsiCola Supervisory Union vs. Laguesma)
Note: Only insofar as unions for collective bargaining is concerned.
3.) Confidential employees (Doctrine of Necessary Implication)
They are those who by reason of their positions or nature of work are required to assist
or act in a fiduciary manner to managerial employees and hence are likewise privy to sensitive
and highly confidential records. (Metro Lab Industries vs. Confessor et al)
They assist and act in a confidential capacity to or have access to confidential matters
or persons who exercise managerial functions in the field of labor relations. As such the
rationale behind the ineligibility of managerial employees to form, assist or join a labor union
equally applies to them (Philips Industrial Development vs. NLRC.)
Doctrine of Necessary Implication- what is implied in a statute is as much a part
thereof as that which is expressed.
One entrusted with confidence on delicate matters or with the custody, handling, care
and protection of the employers property.
4.) Members (co-owners of a cooperative)
An owner cannot bargain with himself or his co-owners (San Jose Electric Service
Corporation Inc. vs. Ministry of Labor)
5.) Members of International Organizations
By the Doctrine of Incorporation, they are immune from suit and cannot be subject to
local jurisdiction. (International Catholic Migration Commission vs. Calleja; Kapisanan ng mga
Manggagawa at TAC sa IRRIOLALIA vs. Secretary of Labor and Employment)
6.) Security Guards
Under RA 6715, they may now freely join a labor organization of the rank-and file or
that of the supervisory union depending on their rank in recognition of their constitutional right to
self organization
THREE-TIERED CLASSIFICATION OF EMPLOYEES IN LABOR RELATION
1.) Managerial- refers to an employee who is vested with powers or prerogatives to lay down
and execute management policies or to hire, transfer, suspend, layoff, discharge, assign or
discipline employees. (Absolute Disqualification)

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2.) Supervisory- refers to an employee who in the interest of the employer effectively
recommends managerial actions and the exercise of such authority is not merely routinary or
clerical but requires the use of independent judgment (Relative Disqualification)
3.) Rank and File- refers to an employee whose functions are neither managerial nor
supervisory in nature
9-11.
Registration of a Union and Purpose; Jurisdiction and Procedure; Juridical
Personality
ART. 234. Requirements of Registration (As amended by RA 9481)
A federation, national union or industry or trade union center or an independent union
shall be issued a certificate of registration upon compliance with the following requirements:
(a) Fifty pesos (P50.00) registration fee;
(b) The 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;
(c) In case the applicant is an independent union, the names of all its members
comprising at least twenty percent (20%) of all the employees in the bargaining unit where it
seeks to operate;
(d) If the applicant union has been in existence for one or more years, copies of its
annual financial reports; and
(e) Four copies of the constitution and by-laws of the applicant union, minutes of its
adoption or ratification, and the list of the members who participated in it.
Purpose: to acquire legal personality and shall be entitled to the rights and privileges granted
by law to legitimate labor organizations upon issuance of the certificate of registration
ART. 234-A. Chartering and Creation of a Local Chapter.(As amended 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 the date it was
issued a charter certificate.
Note: Before the effectively of RA 9481, the duly registered federation or national union issues a
charter to a union in an enterprise and registers the same with the Regional Office or the
Bureau of Labor Relations before the chapter, local or chartered local acquires personality. In
this new law, the charter shall acquire legal personality for purposes of certification election by
mere issuance of a charter certificate by the duly registered federation or national union.
According to Sir (Marquez), there is no need to prove the 20% employees in the bargaining unit.
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:
(a) The names of the chapters officers, their addresses, and the principal office of the
chapter; and

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(b) The chapters constitution and by-laws: Provided, That where the chapters
constitution and by-laws are the same as that of the federation or the national union, this fact
shall be indicated accordingly.
The additional supporting requirements shall be certified under oath by the secretary or
treasurer of the chapter and attested by its president.
Art. 235. Action on application. The Bureau shall act on all applications for registration within
thirty (30) days from filing.
All requisite documents and papers shall be certified under oath by the secretary or the
treasurer of the organization, as the case may be, and attested to by its president.
Art. 236. Denial of registration; appeal. The decision of the Labor Relations Division in the
regional office denying registration may be appealed by the applicant union to the Bureau within
ten (10) days from receipt of notice thereof.
Art. 237. Additional requirements for federations or national unions. Subject to Article 238,
if the applicant for registration is a federation or a national union, it shall, in addition to the
requirements of the preceding Articles, submit the following:
Proof of the affiliation of at least ten (10) locals or chapters, each of which must be a duly
recognized collective bargaining agent in the establishment or industry in which it
operates, supporting the registration of such applicant federation or national union; and
The names and addresses of the companies where the locals or chapters operate and the
list of all the members in each company involved.
ART. 238. Cancellation of Registration.(As amended by RA 9481) - 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 hereof."
ART. 238-A. Effect of a Petition for Cancellation of Registration.(As amended by RA 9481) 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 election.
In case of cancellation, nothing herein shall restrict the right of the union to seek just and
equitable remedies in the appropriate courts."
ART. 239. Grounds for Cancellation of Union Registration.(As amended by RA 9481) - The
following may constitute grounds for cancellation of union registration:
(a) Misrepresentation, false statement or fraud in connection with the adoption or ratification of
the constitution and by-laws or amendments thereto, the minutes of ratification, and the list
of members who took part in the ratification;
(b) Misrepresentation, false statements or fraud in connection with the election of officers,
minutes of the election of officers, and the list of voters;
(c) Voluntary dissolution by the members."
ART. 239-A. Voluntary Cancellation of Registration.(As amended by RA 9481) - The
registration of a legitimate labor organization may be cancelled by the organization itself.
Provided, That at least two-thirds of its general membership votes, in a meeting duly called
for that purpose to dissolve the organization: Provided, further, That an application to cancel
registration is thereafter submitted by the board of the organization, attested to by the
president thereof."

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Art. 240. Equity of the incumbent. All existing federations and national unions which meet the
qualifications of a legitimate labor organization and none of the grounds for cancellation shall
continue to maintain their existing affiliates regardless of the nature of the industry and the
location of the affiliates.

12. Two-Fold Procedure in Creating a Chapter or Local


1.) Issuance of a charter certificate by the duly registered federation or national union.
2.) Submission of the additional supporting documents by the chapter.
Terminologies
1. Bargaining Unit refers to a group of employees sharing mutual interest within a given
employer unit, comprises of all or less than all of the entire body of employees in the employer
unit or any specific occupational or geographical grouping within such employer unit.
Determination of bargaining unit:
a.) Communality / Mutuality of interest
b.) Previous history
2.) Labor Organization refers to any labor organization in the private sector whether
registered or not.
3.) Legitimate Labor Organization refers to any labor organization in the private sector
registered or reported with the department.
4.) National Union or Federation refers to a group of legitimate labor unions in private
establishment organized for collective bargaining or for dealing with employers concerning
terms and conditions of employment for their member unions or for participating in the
formulation of social and employment policies.
It is composed of at least 10 legitimate labor organizations whether independent labor
unions or chartered locals each of which must be duly certified or recognized bargaining agent
in the establishment where it seeks to operate.
Note:Before RA 6715, there was this one company-one union policy. After the effectivity
of the Herrera Veloso Doctrine on March 21 1989, it was abandoned with the 3-tiered
classification of employees. There may be two or more certified bargaining agents serving
different interests.
5.) Affiliate- refers to an independent union affiliated with a federation, national union or to a
chartered local which was subsequently granted independent registration but did not disaffiliate
from its federation, reported to the Regional Office and the Bureau in accordance with the rules.
It is important to gain or increase the bargaining power vis--vis the employer.
6.) Independent Union- refers to a labor organization operating at the enterprise level that
acquired legal personality through independent registration.
7.) Chartered Local refers to a labor organization in the private sector operating at the
enterprise level that acquired legal personality through the issuance of a charter certificate by a
duly registered federation or national union.
8.) Registration -refers to the process of determining whether the application for registration of
a union or workers association and collective bargaining agreement complies with the
documentary requirements for registration prescribed by the rules.
It is necessary to qualify as legitimate labor organization that can avail of the benefits
provided by law.
FORMATION OF UNION AND REGISTRATION
1.) Recruitment
For purposes of registration, at least 20% of the employees in the bargaining unit

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Qualification of a member- he must be an employee of the same bargaining unit.
Article 277 (c)
Any employee, whether employed for a definite period or not, shall, beginning on his first
day of service, be considered as an employee for purposes of membership in any labor union.
2.) Drafting of the Constitution and by-laws.
The former refers to the general principles and the latter to the detailed matters as duties
and responsibilities.
3.) Ratification majority vote is required.
4.) Registration
A.)Accompanying Documents
Independent Labor Union
1.) The name of the applicant
labor union, its principal
address, the name of its
officers and their respective
addresses,
approximate
number of employees in the
bargaining unit where it seeks
to operate, with a statement
that it is not reported as
charted local of any federation
or national union.
2.) The minutes of the
organizational meetings and
the list of employees who
participated in said meetings.
3.) The name of all its
members comprising at least
20% of the employees in the
bargaining unit.
4.) The annual financial
reports if the applicant has
been in existence for one or
more years, unless it has not
collected any amount from its
members, in which case a
statement to this effect shall
be included in the application.
5.) The applicants constitution
and by laws, minutes of its
adoption or ratification, and
the list of the members who
participated in it. The list of
the ratifying members shall be

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Affiliation

Chartering

The report of affiliation of A duly registered federation or


independently registered labor national union may directly
unions with a federation or create a local chapter by issuing
national
union
shall
be a charter certificate indicating
accompanied by:
the establishment of the local
1.) Resolution of the labor chapter.
unions board of directors ( therefore no need to submit
approving the affiliation.
accompanying documents
2.) Minutes of the general however the chapters rights is
membership meeting approving only limited to certification
the affiliation.
election )
3.) The total number of
members comprising the labor
To be entitled to all other
union and the names of the rights of a legitimate labor
members who approved the organization, the chapter shall
affiliation.
submit the following documents
4.) The certificate of affiliation in addition to its charter
issued by the federation in favor certificate:
of the independently registered
labor union.
(a) The names of the chapters
5.) Written notice to the officers, their addresses, and
employer concerned if the the principal office of the
affiliating union is the incumbent chapter; and
bargaining agent.
(b) The chapters constitution
and by-laws: Provided, That
where the chapters constitution
and by-laws are the same as
that of the federation or the
national union, this fact shall be
indicated accordingly.
The additional supporting

En Consulta scutarius compilation labor relations 2009


dispensed with where the
constitution and by laws was
ratified or adopted during the
organizational meeting. In
such
case
the
factual
circumstances
of
the
ratification shall be recorded
in the minutes of the
organizational meeting.

requirements shall be certified


under oath by the secretary or
treasurer of the chapter and
attested by its president.

-Also there are attestation requirements needed (Certification under oath by the Secretary or
Treasurer as the case may be and attested by the President) it is also needed in case of
change of name merger, consolidation and affiliation.
-Payment of registration fees
B. Where to file
a.) Regional Office- For the registration of
*independent labor unions
*Chartered locals (as amended by RA 9481) the law says that 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. (I believe that there is still a need to register although the
federation may first issue a charter certificate so that a chapter may be able to file a certification
election and then later on register the same and then accompany the additional supporting
documents nevertheless let us wait for what sir is to say. ) Write your notes on the space
provided.
*Workers association
b.)Bureau of Labor Relations (Manila) for the registration of:
* Federations
*National Unions
C.) When Registered
- The labor union or workers association shall be deemed registered and vested with
legal personality on the date of issuance of its certificate of registration or certificate of creation
of chartered local. (Sec 8 DO 40-33) See RA 9481 because chapter acquires personality upon
issuance by federation of charter certificate to the chapter.
D.) Assailment of Registration
Such legal personality may be questioned only through an independent petition for
cancellation of union registration (no collateral attack)
E.) DENIAL OF APPLICATION
It shall be in writing stating in clear terms the reasons thereof.
F.) APPEAL FROM THE DENIAL
To whom:
-If denial is made by the regional office appeal to the Bureau
-If denial is made by the Bureau appeal to the Secretary of Labor
Prescriptive Period
-within 10 days from receipt of such notice of denial

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Grounds:
-grave abuse of discretion
-violation of the rules
Period to decide
-within 20 days from receipt of the records of the case.
G.) CA THRU RULE 65 THEN SC RULE 45
13. Rights of Legitimate Labor Organizations
ART. 242. Rights of legitimate labor organizations. - A legitimate labor organization shall
have the right:
1.) Right of Representation
a.) To act as the representative of its members for the purpose of collective bargaining
(b) To be certified as the exclusive representative of all the employees in an appropriate
bargaining unit for purposes of collective bargaining
2.) Right to information
(c) To be furnished by the employer, upon written request, with its annual audited financial
statements, including the balance sheet and the profit and loss statement, within thirty (30)
calendar days from the date of receipt of the request, after the union has been duly recognized
by the employer or certified as the sole and exclusive bargaining representative of the
employees in the bargaining unit, or within sixty (60) calendar days before the expiration of the
existing collective bargaining agreement, or during the collective bargaining negotiation;
3.) Right pertaining to a juridical person/Property Rights
(d) To own property, real or personal, for the use and benefit of the labor organization and its
members
(e) To sue and be sued in its registered name; and
(f) To undertake all other activities designed to benefit the organization and its members,
including cooperative, housing, welfare and other projects not contrary to law.
4.) Exemption from taxes
Income and properties received including donations that are actually, directly and
exclusively used for their lawful purposes shall be free from taxes, duties and other
assessments. (May be withdrawn by state)
5.) Right to collect union dues, etc.
ART. 277. Miscellaneous provisions. - (a) 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.
14. Rights and Duties of Union Members and Non Union Members
RIGHTS:

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1.) Political rights
The members shall directly elect their officers, including those of the national union or
federation, to which they or their union is affiliated, by secret ballot at intervals of five (5) years.
Qualification of candidates: membership in good standing.
Disqualification:
1.) No person who has been convicted of a crime involving moral turpitude shall be eligible for
election as a union officer or for appointment to any position in the union.
2.) Must be an employee.
No labor organization shall knowingly admit as members or continue in membership any
individual who belongs to a subversive organization or who is engaged directly or indirectly in
any subversive activity (not only for candidacy but also membership)
3.) Note: Additional requirements may be made as long as it is reasonable and does not
undermine the right to self organization
Term of office is 5 years.
2.) Right to information
It shall be the duty of any labor organization and its officers to inform its members on the
provisions of its constitution and by-laws, collective bargaining agreement, the prevailing labor
relations system and all their rights and obligations under existing labor laws.
3.) Deliberative and decision-making right
The members shall determine by secret ballot, after due deliberation, any question of
major policy affecting the entire membership of the organization, unless the nature of the
organization or force majeure renders such secret ballot impractical, in which case, the board of
directors of the organization may make the decision in behalf of the general membership;
4.) Rights over money matters
A.) Right against excessive fees
No arbitrary or excessive initiation fees shall be required of the members of a
legitimate labor organization nor shall arbitrary, excessive or oppressive fine and forfeiture be
imposed;
B.) Right against unauthorized collection or disbursements
No officer, agent or member of a labor organization shall collect any fees, dues,
or other contributions in its behalf or make any disbursement of its money or funds unless he is
duly authorized pursuant to its
constitution and by-laws
The funds of the organization shall not be applied for any purpose or object other
than those expressly provided by its constitution and by-laws or those expressly authorized by
written resolution adopted by the
majority of the members at a general meeting duly called
for the purpose
C.) Right to require adequate records of income and expenses and right to access
financial records
The members shall be entitled to full and detailed reports from their officers and
representatives of all financial transactions as provided for in the constitution and by-laws of the
organization.
Every payment of fees, dues or other contributions by a member shall be
evidenced by a receipt signed by the officer or agent making the collection and entered into the
record of the organization to be kept and maintained for the purpose.

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Every income or revenue of the organization shall be evidenced by a record
showing its source, and every expenditure of its funds shall be evidenced by a receipt from the
person to whom the payment is made,
which shall state the date, place and purpose of
such payment. Such record or receipt shall form part of the financial records of the organization.
The books of accounts and other records of the financial activities of any labor
organization shall be open to inspection by any officer or member thereof during office hours;
D.) Right to vote on officers compensation
The officers of any labor organization shall not be paid any compensation other
than the salaries and expenses due to their positions as specifically provided for in its
constitution and by-laws, or in a written
resolution duly authorized by a majority of all the
members at a general membership meeting duly called for the purpose.
E.) Right to vote on proposed special assessments or the members written authorization
No special assessment or other extraordinary fees may be levied upon the
members of a labor organization unless authorized by a written resolution of a majority of all the
members in a general membership meeting duly called for the purpose.
Other than for mandatory activities under the Code, no special assessments,
attorneys fees, negotiation fees or any other extraordinary fees may be checked off from any
amount due to an employee without an
individual written authorization duly signed by the
employee. The authorization should specifically state the amount, purpose and beneficiary of
the deduction
DUTIES:
1.Payment of union dues (applies both to union and non union members)
Art 248(e) Employees of an appropriate bargaining unit who are not members of the
recognized collective bargaining agent may be assessed a reasonable fee equivalent to
the dues and other fees paid by members of the recognized collective bargaining agent,
if such non-union members accept the benefits under the collective bargaining
agreement.
Union dues regular mandatory contribution to union funds
Fines and Forfeitures disciplinary measures imposed by the union to erring members
Members of a legitimate labor organization has the duty to contribute funds but subject
to the caveat of excessive fees, fines or forfeitures.
Manner of Collection
1.) Personal
2.) Check-off
15. Election of Union Officers
ART. 241
(c) The members shall directly elect their officers, including those of the national union or
federation, to which they or their union is affiliated, by secret ballot at intervals of five (5) years.
No qualification requirements for candidacy to any position shall be imposed other than
membership in good standing in subject labor organization. The secretary or any other
responsible union officer shall furnish the Secretary of Labor and Employment with a list of the
newly-elected officers, together with the appointive officers or agents who are entrusted with the

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handling of funds, within thirty (30) calendar days after the election of officers or from the
occurrence of any change in the list of officers of the labor organization;
(See rule XII DO 40-33)
A.) If there is an agreement among the members or any provision in the Constitution and
by-laws providing for the procedures in the election of union officers the agreement or
the constitution or the by-laws shall be followed.
B.) If there is none- The following guidelines shall be followed:
I.) WHERE THERE IS NO DISPUTE OVER II.)WHERE THERE IS DISPUTE OVER
CONDUCT OF ELECTION OF OFFICERS
CONDUCT OF ELECTION OF OFFICERS
1.) Constitution of a Committee on Election
Who shall constitute? President of the Labor
organization.
When shall the constitution be made?
Within 60 days before the expiration of the
terms of the incumbent officers.
Composition: at least 3 members who are not
running for any position. If there are
identifiable parties within the organization,
each shall have equal representation.
2.) Election or designation of chairman of
the Committee
The members shall elect their chairman
among themselves and in case of
disagreement; the president shall designate
the chairman.
Powers and duties of the committee
- set the date, time and venue of the election
- prescribe the rules on the qualification and
eligibility of candidates and voters
- prepare and post the voters list and the list
of qualified candidates
- accredit the authorized representatives of the
contending parties
-supervise the actual conduct of election and
canvass the votes to ensure the sanctity of
the ballot.
-keep minutes of the proceedings
- be the final arbiter of all election protests
-proclaim winners
-prescribe such other rules as may facilitate
the orderly conduct of election.
3.) Raffle of an election officer (Committee
on elections)
4.) Pre-election Conference
- Issuance by the election officer of notice of
pre election conference upon the contending
candidates which shall be scheduled within 10
days from receipt of assignment.

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1.) Filing of Petition


A.) Where to file:
Regional Office: independent labor union or
chartered local
Bureau or Regional Office - federations, national
or industry unions and trade union centers
-But shall be heard and resolved by the Bureau.
B.) Grounds:
a.) Expiration of officers term and their neglect
or failure to call an election of new officers.
b.) The labor organizations constitution and by
laws don not provide for the manner by which
said election be conducted and the intervention
of the Department is necessary.
C.) Manner
- Filing of petition for the conduct of election by
at least 30% of the members of the labor
organization
NB!! Same rule applies where there is
nullification of election of officers, impeachment,
expulsion, etc...
D.) Formal requirements of the complaint or
petition.
In writing, verified under oath containing the
following:
a.) name, address and other personal
circumstances of the complainants or petitioner
b.) name, address and other personal
circumstances of the respondents or the persons
charged.
c.) nature of the complaint or petition.
d.) facts and circumstances surrounding the
complaint or petition.
e.) causes of action or specific violations
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 complainants or

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-the pre-election conference shall set the
mechanics for the election and shall
determine:
a.) date, time and place of the election, which
shall not be later than 45 days from the date of
the first pre-election conference and shall be
on a regular working day and within the
employers premises unless circumstances
otherwise require.
b.) list of eligible and challenged voters
c.) number and location of the polling places or
booths and the number of ballots to be
prepared with appropriate translations if
necessary.
d.) name of watchers or representatives and
their alternates for each of the parties during
election
e.) mechanics and guidelines
Failure of the party to appear in the preelection conference despite notice shall be
considered as waiver of the right to be heard.
However not to subsequent notices.
There shall be minutes of pre election
conference acknowledged by the parties by
their signatures.
(NB!! Since the Committee on Elections is
vested with the powers, the election officer is
under their supervision and control.)
5.) Qualifications of voters
All employees who are members of the said
legitimate labor organization shall be eligible to
vote.
An employee dismissed from work but has
contested the legality of the dismissal in
appropriate forum at the time of the issuance
of the order for the conduct of election of
officers shall be a qualified voter unless there
is a dismissal by final judgment at the time of
the conduct of the election.
All contested voters are allowed to vote in
case of disagreement over the voters list but
their votes shall be segregated. (NB!! The
committee on election may provide for
additional qualifications)
6.) Posting of Notices
The election officer shall cause the posting
of notice of election at least 10 days before the
actual date in 2 conspicuous in the company
premises.
7.) Secrecy and sanctity of the ballot
The Election Officer together with the

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petitioners through no fault of his own or


compliance with such administrative remedies
does not apply to complainants or petitioners.
g.)Reliefs prayed for
h.) certificate of non-forum shopping and
i) Other relevant matters
2.) Raffle of case for determining the MedArbiter or Hearing Officer who shall be assigned
to the case in case it is filed with the regional
office.
3.)Notice of Preliminary Conference
The Med-Arbiter or Hearing officer shall
prepare notice of preliminary conference. It shall
be scheduled within 10 days from receipt of the
complaint or petition.
The Med Arbiter or Hearing Officer shall cause
the service of summons to the respondents
named directing him to answer before the
preliminary conference and to appear on the
preliminary conference.
4.)Conduct of Preliminary Conference
Exertion of effort by the Med- arbiter or
Hearing officer for amicable settlement.
If there is amicable settlement- decision based
on compromise shall be issued by the MA or HO.
If none- The MA or HO shall proceed with
stipulation of facts, limitation of issues,
clarificatory questioning and submission of laws
and jurisprudence to support each claim.
5.) Hearing
6.)Affirmation of testimonial Evidence
Any affidavit submitted by a party to prove his
claim or defenses shall be affirmed by his
presentation before the Med-Arbiter or Hearing
officer otherwise such evidence is inadmissible
unless the party against whom such affidavit is
used admits the allegation.
7.)Filing of Pleadings and Position Papers
Within 25 day period prescribed for the
hearing. If the case is already submitted for
decision, no other pleading is allowed
8.)Hearing
9.) Decision
The Bureau, Med-Arbiter or Regional Director
as the case shall have 20 days to decide
complaint or petition. The decision shall state
facts, findings conclusion and relief granted.
10.)Appeal
appeal to the Bureau- decision of MedArbiter and
Regional Director

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authorized representatives of the contending
candidates and the employers shall before the
start of the actual voting, inspect the polling
place, the ballot boxes and the polling booths.
To ensure secrecy of the ballot.
8.) Preparation of ballot
The election officer shall prepare the ballots
in English, Filipino or the local dialect
corresponding to the number of voters and a
reasonable number of extra ballots.
9.)Voting
10.) Challenging of votes
Any authorized representative of the
candidates may challenge a vote before
deposited in the ballot box on the following
grounds:
(a) No employer-employee relationship exists
between the voter and the company.
(b) That the voter is not a member of the
appropriate bargaining unit.
11.) Procedure in the Challenge of Votes
If a vote is properly challenged, the election
officer shall place the ballot in an envelope
sealed in the presence of the voter, contending
candidates and employer. The election officer
shall note all the challenges in the minutes of
the election. If the number of segregated
voters will materially affect the results of the
election, the envelopes shall be opened and
question of eligibility shall be passed upon.
12.) On the spot questions
The election officer shall rule on any
question relating to and raised during the
conduct of election. (Example appreciation of
ballots) but not if the ground is absence an
employer-employee relationship or if voter is
not a member of an appropriate bargaining
unit.
NB!! The Committee on Election is the final
Arbiter
13.) Protest; when perfected
Any party in interest may file a protest based
on the conduct or mechanics of the election. It
shall be recorded in the minutes of the election
proceedings otherwise it is waived.
It shall be formalized with the Committee on
Election within 5 days after the close of the
election proceedings.
If not recorded or formalized, it shall be
deemed dropped.

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within 10
Days from receipt
thereof.
Appeal to the SOLE decision of the Bureau
director
-It shall be verified under oath and consists of
memorandum on appeal stating grounds relied
upon with supporting arguments and evidence.
-No appeal- decision becomes final after 10 days
from receipt by the parties of the decision.
-only 1 Motion for reconsideration is allowed
If the decision calls for election of candidates
then follow the Constitution and by-laws if there
is a procedure for election of officers stated
therein. If there is no such procedure, then
follow the omnibus rules. (see other side of the
table)

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Why with the committee and not the Med
Arbiter as provided in the rules? Because The
Committee on Election are the ones vested
with the power to proclaim the winners
(implied powers). The Med-Arbiters power to
proclaim pertains to the conduct of certification
elections
14.) Canvassing of Votes
Votes shall be counted and tabulated by the
election officer in the presence of the
representatives of the contending unions. The
Election officer shall give each representative
a copy of the minutes of election proceedings
and the results of the election. The ballots and
the tally sheet shall be sealed in an envelope
signed by the Election officer and the
representatives of contending union and
transmitted to the Committee on Elections
together with the minutes and results of the
election within 24 hours from completion of
canvass.
15.) Conduct of Election and Canvass of
Votes
The election precincts shall open and close
on the date and time agreed upon during the
pre-election conference. The opening and
canvass shall proceed after the precincts have
closed.
16.) Failure of Election
Where the number of votes cast shall be in
the election is less than the majority of the
number of eligible voters and there are no
material challenged votes, the election officer
shall declare failure of election. NB!! The
Committee on Election is the final Arbiter
17.) Effect of Failure of Election
A failure of election shall not bar the filing of
a motion for the immediate holding of another
election within 6 months from declaration of
failure of election.
18.)Action on the Motion
Within 24 hrs from receipt of the motion, the
Election Officer shall immediately schedule the
conduct of another election within 15 days
from receipt of the motion and cause the
posting of the notice of election at least 10
days prior to the scheduled date in 2
conspicuous places in the establishment. The
same guidelines and list of voters shall be
used in the election.

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(NB!! subject to the conformity of the
Committee on Election)
19.) Proclamation and Certification of the
result of the Election
Who shall proclaim? Committee on Elections
The Election officer shall transmit the results to
them.
16. Check-Off
A method agreed between the management and the representative union of deducting
from an employees pay at prescribed period, the amounts due the union for fees, fines or
assessment.
Rule XXV Section 4 - the employer shall check- from non-union members with the
collective bargaining unit the same reasonable fee equivalent to the dues and other fees
normally paid by union members without the need for individual check-off authorizations.
Article 113 (b)
No employer, in his own behalf or in behalf of any person shall make any deduction from
the wages of his employees except:
(b) For union dues in cases where the right of the worker or his union to check-off has been
recognized by the employer or authorized in writing by the individual worker concerned;
17. Affiliation and Disaffiliation
Affiliation
An independent union who wants to affiliate with a federation or national union submits
the issue to its members. When majority of them vote affirmatively, a resolution or request to
affiliate is presented to the chosen federation or national union.
If the federation or national union accepts the affiliation it offers a contract of affiliation.
The relationship between the mother anddaughter union is therefore contractual, binding
both sides. The mother assists in bargaining with the employer or manning the picket line. The
daughter in turn remits parts of the union dues usually fifty percent.
Affiliation by a duly registered union with a national union or federation does not cause
the local union to lose its legal personality.
Disaffiliation
The affiliate may disaffiliate but must observe the terms of the contract. It is not
prohibited but can be restricted by the contract of affiliation. (Eg.. The number of votes needed
to authorize disaffiliation to the time disaffiliation may be done)
In disaffiliating, the local union was merely exercising its primary right to self organization
for the effective enhancement and protection of common interest. In the absence of enforceable
provisions in the federations constitution preventing disaffiliation of a local union, a local may
severe its relationship with its parents.
The right of the affiliate to disaffiliate may be exercised only when circumstances so
warrant. Generally, a labor union may disaffiliate from the mother union to form a local or
independent union only during the 60-day freedom period immediately preceding the expiration
of the CBA. It must be effected by the majority of the members of the bargaining unit.

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When a union which is not independently registered disaffiliates from the federation, it is
not granted the rights and privileges to a legitimate labor organization.
When a local union disaffiliates from a national union or federation, the latter ceases to
be entitled to check-off dues.
18. Intra-Union and Inter-Union Disputes
Intra-Union Dispute refers to any conflict between and among union members, including
grievances arising from any violation of the rights and conditions of membership, violation of
agreement over any provision of the unions constitution and by-laws, or disputes arising from
chartering or affiliation of union.
Inter-Union Dispute refers to any conflict between and among legitimate labor unions
involving representation question for purposes of collective bargaining or to any other conflict or
dispute between legitimate labor unions.
What are the cases of inter/Intra- union dispute?
1.) Cancellation of registration of labor organization filed by its members or by another labor
organization;
2.) Conduct of election of union and workers association officers/ nullification of election of
union and workers association;
3.) Audit/ accounts examination of union or workers association funds;
4.) Deregistration of Collective bargaining agreements;
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 agreements over any provision in a union or workers association
constitution and by-laws;
11.) Disagreements over chartering or registration of labor organizations and CBAs
12.) Violations of the rights and conditions of workers association membership;
13.) Violations of the rights of legitimate labor organizations except interpretation of CBA;
14.) Such other disputes or conflicts involving the rights to self-organization, union membership
and collective bargaining:
-between and among legitimate labor organization
-between and among members of a union or workers association.
Other related labor relations disputes shall include any conflict between labor union and
the employer or any individual, entity or group that is not a labor organization or workers
association. This includes: 1.) cancellation of registration of unions and workers association;
and 2.) petition for interpleader.
19.

Jurisdiction of Bureau of Labor Realtions

ART. 226. Bureau of Labor Relations.


The Bureau of Labor Relations and the Labor Relations Divisions in the regional offices
of the Department of Labor, shall have original and exclusive authority to act, at their own
initiative or upon request of either or both parties, on all inter-union and intra-union conflicts, and

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all disputes, grievances or problems arising from or affecting labor-management relations in all
workplaces, whether agricultural or non-agricultural, except those arising from the
implementation or interpretation of collective bargaining agreements which shall be the subject
of grievance procedure and/or voluntary arbitration.
Related labor relations dispute- It shall be filed with the BLR but where there is a
grievance procedure in the CBA, involving its implementation or interpretation, the voluntary
arbitrator is the one authorized. It includes cancellation of registration of a LLO.
The Med-Arbiter refers to the officer of the DOLE Regional office or the Bureau of Labor
relations officer authorized to hear and decide representation cases, inter/intra-union disputes
and other related labor disputes except cancellation of registration dues.
If the issue involves conflict between the labor union and the employer, or any individual,
entity or group that is not a labor organization of workers, the BLR is bereft of any authority to
hear the same.
PROCEDURE: same as that of cancellation of union registration
Effects of filing/pendency of inter/intra-union and other labor related relations disputes
The rights, relationship 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 the 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 decisions so ordered.
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.
20-21. Cancellation of Union Registration; Grounds, Jurisdiction and Procedure
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 hereof. (RA 9481)
A.)To whom the petition is filed
Regional Director- for cancellation of
1.) Independent labor union
2.) Chartered local
3.) Workers association
Bureau Director- for cancellation of
1.) Federations
2.) National or industry unions
3.) Trade union centers
B.)Who can file the petition?
1.) Members of the labor organization concerned for actions involving violation of article 241
2.) Any party in interest- all other grounds
D.)Grounds: (DO 40-33)

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(a) Misrepresentation, false statement or fraud in connection with the adoption or ratification of
the constitution and by-laws or amendments thereto, the minutes of ratification, and the list of
members who took part in the ratification;
(b) Failure to submit the documents mentioned in the preceding paragraph within 30 days from
adoption or ratification of the constitution and by-laws or amendments thereto.
(c) Misrepresentation, false statements or fraud in connection with the election of officers,
minutes of the election of officers, and the list of voters;
(d) Failure to submit these documents together with the list of newly elected or appointed
officers and their postal address within 30 days from election.
(e) Voluntary dissolution by the members ( new under RA 9481)
ART. 239-A. Voluntary Cancellation of Registration. - The registration of a legitimate
labor organization may be cancelled by the organization itself. Provided, that at least two-thirds
of its general membership votes, in a meeting duly called for that purpose to dissolve the
organization: Provided, further, That an application to cancel registration is thereafter submitted
by the board of the organization, attested to by the president thereof.
(f) Failure to submit the annual report to the Bureau within 30 days after the close of every fiscal
year and misrepresentation, false entries or fraud in the preparation of financial report.
(g) Acting as labor contractor or engaging in the cabo system or otherwise engaging in any
activity prohibited by law.
(h) Entering into CBA which provides for terms and conditions of employment below the
minimum standards established by law
(i) Commission of any acts enumerated under Article 241 based on this ground may be granted
unless supported by at least 30% of all members of the respondent labor organization;
(j) Asking for or accepting attorneys fees or negotiation fees from the employer;
(k) Other than for mandatory activities under the labor code checking off special assessments or
any other fees without duly signed individual written authorizations of the members;
(l) Failure to submit list of individual members to the bureau once a year or whenever required
by the Bureau
(m) Failure to comply with the requirement of registration prescribed under the rules.
In addition, a federation or national union or workers association may revoke the charter
on the ground of:
1.) Disloyalty
2.) Other such ground as may be specified in the constitution and by-laws of the federation,
national union or workers association.
Note:Pars b, d f and l or those with asterisks are no longer grounds for cancellation of
registration but are grounds to expel, suspend or fine erring officers or members.
Under RA 9481 which provides that:
ART. 242-A. Reportorial Requirements. - The following are documents required to be
submitted to the Bureau by the legitimate labor organization concerned:
(a) Its constitution and by-laws, or amendments thereto, the minutes of ratification, and the list
of members who took part in the ratification of the constitution and by-laws within thirty (30)
days from adoption or ratification of the constitution and by-lam or amendments thereto;
(b) Its list of officers, minutes of the election of officers, and list of voters within thirty (30) days
from election;
(c) Its annual financial report within thirty (30) days after the close of every fiscal year; and
(d) Its list of members at least once a year or whenever required by the Bureau.

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Failure to comply with the above 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.
ART. 245-A. Effect of Inclusion as Members of Employees outside the Bargaining
Unit. - The inclusion as union members of employees outside the bargaining unit shall not be a
ground for the cancellation of the registration of the union. Said employees are automatically
deemed removed from the list of membership of said union.
E.) EFFECT OF CANCELLATION
-it shall operate to divest the local/chapter of their status as legitimate labor organization
-it shall divest the local chapter of its legal personality
-distinguish from Effect of a Petition for Cancellation of Registration:
In case of cancellation of registration:
ART. 238-A. Effect of a Petition for Cancellation of Registration. - 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 election.
While, in case of cancellation, nothing herein shall restrict the right of the union to seek
just and equitable remedies in the appropriate courts.
F: PREOCEDURE
Note:Cancellation of registration is considered an inter or intra-union dispute
1.) Complaint or petition filed before the Bureau or Regional office. (See where to file)
2.) Formal requirements of the complaint or petition.
In writing, verified under oath containing the following:
a.) name, address and other personal circumstances of the complainants or petitioner
b.) name, address and other personal circumstances of the respondents or the persons
charged.
c.) nature of the complaint or petition.
d.) facts and circumstances surrounding the complaint or petition.
e.) causes of action or specific violations 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 complainants or
petitioners through no fault of his own or compliance with such administrative remedies does not
apply to complainants or petitioners.
g.)Reliefs prayed for
h.) certificate of non-forum shopping and
i) Other relevant matters
2.) Raffle of case for determining the Med-Arbiter or Hearing Officer who shall be assigned to
the case in case it is filed with the regional office.
3.) Notice of Preliminary Conference
The Med-Arbiter or Hearing officer shall prepare notice of preliminary conference. It shall be
scheduled within 10 days from receipt of the complaint or petition.
The Med Arbiter or Hearing Officer shall cause the service of summons to the respondents
named directing him to answer before the preliminary conference and to appear on the
preliminary conference.

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4.) Conduct of Preliminary Conference
Exertion of effort by the Med-Arbiter or Hearing officer for amicable settlement.
If there is amicable settlement- decision based on compromise shall be issued by the Medarbiter or Hearing officer.
If none- The Med-Arbiter or Hearing officer shall proceed with stipulation of facts, limitation of
issues, clarificatory questioning and submission of laws and jurisprudence to support each
claim.
5.) Hearing
6.) Affirmation of testimonial Evidence
Any affidavit submitted by a party to prove his claim or defenses shall be affirmed by his
presentation before the Med-Arbiter or Hearing officer otherwise such evidence is inadmissible
unless the party against whom such affidavit is used admits the allegation.
7.) Filing of Pleadings and Position Papers
Within 25 day period prescribed for the hearing. If the case is already submitted for decision,
no other pleading is allowed
8.) Hearing
9.) Decision
The Bureau, Med-Arbiter or Regional Director as the case shall have 20 days to decide
complaint or petition. The decision shall state facts, findings conclusion and relief granted.
10.) Appeal
Appeal to the Bureau- decision of Med-Arbiter and
Regional Director within 10
Days from receipt thereof.
Appeal to the SOLE decision of the Bureau director
11. It shall be verified under oath and consists of memorandum on appeal stating grounds
relied upon with supporting arguments and evidence.
-No appeal- decision becomes final after 10 days from receipt by the parties.
-only 1 Motion for reconsideration is allowed from decision of Bureau or SOLE in its appellate
jurisdiction.
22. Inquiry Into Union's Financial Activities (Visitorial Power)
Article 274 Visitorial Power
Who: The Secretary of Labor and Employment or his duly authorized representative is hereby
empowered to inquire into the financial activities of legitimate labor organization and to examine
their book of accounts and other records.
When: Upon the filing of a complaint under oath and duly supported by the written consent of at
least 20% of the total membership of the labor organization concerned.
Purpose: To determine compliance or non compliance with the law and to prosecute any
violations of the laws and of the unions constitution and by-laws.
Limitations: Inquiry or examination shall not be conducted during the 60- day freedom period
nor within 30 days immediately preceding the date of election of union officials.
23. Other Powers of the Secretary of Labor
ART. 273. Study of labor-management relations.

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The Secretary of Labor shall have the power and it shall be his duty to inquire into:
(a) The existing relations between employers and employees in the Philippines;
(b) The growth of associations of employees and the effect of such associations upon employeremployee relations;
(c) The extent and results of the methods of collective bargaining in the determination of terms
and conditions of employment;
(d) The methods which have been tried by employers and associations of employees for
maintaining mutually satisfactory relations;
(e) Desirable industrial practices which have been developed through collective bargaining and
other voluntary arrangements;
(f) The possible ways of increasing the usefulness and efficiency of collective bargaining for
settling differences;
(g) The possibilities for the adoption of practical and effective methods of labor-management
cooperation;
(h) Any other aspects of employer-employee relations concerning the promotion of harmony and
understanding between the parties;
(i) The relevance of labor laws and labor relations to national development.
The Secretary of Labor shall also inquire into the causes of industrial unrest and take all
the necessary steps within his power as may be prescribed by law to alleviate the same, and
shall from time to time recommend the enactment of such remedial legislation as in his
judgment may be desirable for the maintenance and promotion of industrial peace.
The Secretary of Labor thereby is granted the power to make feasibility studies, research
and other powers necessary to carry out the powers expressly given in order to improve the
relations between employers, employees, associations and methods employed by these parties
such as those in the CBA, etc. As there is a tripartism in decision and policy making bodies of
the government, these studies shall then be submitted for legislation for the promotion of
industrial peace.
13.

RIGHTS OF LEGITIMATE LABOR ORGANIZATION

1. In general
1)

Autonomy and governance of its affairs, particularly:


a)
to draw up their constitution;
b)
freely elect their representatives;
c)
to organize their activities and formulate programs;
d)
dissolve or suspend the organization;

2)
3)

Right to its funds or property;


Right to protection from unfair labor practices.

Under the Labor Code


ART. 242. Rights of legitimate labor organizations. - A legitimate labor organization shall
have the right:

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(a) To act as the representative of its members for the purpose
of collective bargaining;
(b) To be certified as the exclusive representative of all the
employees in an appropriate bargaining unit for purposes of collective
bargaining;
(c) To be furnished by the employer, upon written request, with
its annual audited financial statements, including the balance sheet
and the profit and loss statement, within thirty (30) calendar days from
the date of receipt of the request, after the union has been duly
recognized by the employer or certified as the sole and exclusive
bargaining representative of the employees in the bargaining unit, or
within sixty (60) calendar days before the expiration of the existing
collective bargaining agreement, or during the collective bargaining
negotiation;
(d) To own property, real or personal, for the use and benefit of
the labor organization and its members;
(e) To sue and be sued in its registered name; and
(f) To undertake all other activities designed to benefit the
organization and its members, including cooperative, housing, welfare
and other projects not contrary to law.
Notwithstanding any provision of a general or special law to the
contrary, the income and the properties of legitimate labor
organizations, including grants, endowments, gifts, donations and
contributions they may receive from fraternal and similar organizations,
local or foreign, which are actually, directly and exclusively used for
their lawful purposes, shall be free from taxes, duties and other
assessments. The exemptions provided herein may be withdrawn only
by a special law expressly repealing this provision. (As amended by
Section 17, Republic Act No. 6715, March 21, 1989).

This presupposes that the labor organization has been duly registered.

2. Exclusive Bargaining Agent


EXCLUSIVE BARGAINING REPRESENTATIVE
- refers to a legitimate labor union duly recognized or certified as the sole and
exclusive bargaining representative or agent of all the employees in a bargaining
unit.
- Purpose (Article 242, LC):
(a) To act as the representative of its members for the
purpose of collective bargaining;
3. Certification Process: Election and Voluntary Recognition
Determination of Representation Status
VOLUNTARY RECOGNITION refers to the process by which a legitimate labor union is
recognized by the employer as the exclusive bargaining representative or agent in a bargaining
unit.

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Requirements: (in an unorganized establishment)
4. A joint statement under oath of voluntary recognition attesting to the fact of
voluntary recognition;
5. Certificate of posting of the joint statement of voluntary recognition for (15)
consecutive days in at least (2) conspicuous places in the establishment or
bargaining unit where the union seeks to operate;
6. The approximate number of employees in the bargaining unit, accompanied by
the names of those who support the voluntary recognition comprising at least a
majority of the members of the bargaining unit; and
7. A statement that the labor union is the only legitimate labor organization within
the bargaining unit.
Note:Certified under oath by the employer representative and president of the
recognized labor union.
Date of Effectivity time of recording of voluntary recognition.
Effects of Registration
2. Enjoyment of the rights, privileges and obligations of an existing bargaining agent
of all the employees in the bargaining unit.
3. Bar the filing of a petition for a certification election by any labor organization for
a period of (1) year from the date of entry of voluntary recognition.
Note:Direct Certification is no longer allowed as the will of the majority is frustrated.
CERTIFICATION OF ELECTION refers to the process of determining through secret ballot the
sole and exclusive representative of the employees in a bargaining unit for purposes of
collective bargaining/negotiation ordered by DOLE.
PETITION
Who may file

Where to file

When to file

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Unorganized Establishment
1) Any legitimate labor organization
2) When requested to bargain
collectively, an employer

Organized Establishment
1) The petitioner is not listed in the
Departments registry of legitimate
labor unions;
2) The petitioners legal personality
has been revoked or cancelled with
finality in accordance with Rule XIV
of the Rules.
Regional Office which issued the
Regional Office which issued the
petitioning unions certificate of
petitioning unions certificate of
registration/certificate of creation of
registration/certificate of creation of
chartered local.
chartered local.
Anytime
General Rule: Anytime
Note:Where there is no certified
Exceptions:
bargaining agent, it shall be
1) When a fact of voluntary recognition
automatically conducted upon the filing
has been entered or a valid
of a petition by a legitimate labor
certification, consent or run-off
organization.
election has been conducted within
the bargaining unit within (1) year
prior to the filing of the petition for
certification election;
Note: Where an appeal has been filed
from the order of the Med-Arbiter
certifying the results of the election, the

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running of the 1-year period shall be
suspended until the decision on the
appeal has become final and executory.
2) When the duly certified union has
commenced and sustained
negotiations in good faith with the
employer in accordance with Article
250 of the LC within the 1-year
period referred in the immediately
preceding paragraph;
3) When a bargaining deadlock to
which an incumbent or certified
bargaining agent is a party, had
been submitted to conciliation or
arbitration or had become the
subject of a valid notice of strike or
lockout;
4) When the CBA between the ER and
a duly recognized or certified
bargaining agent has been
registered in accordance with Article
231 of the LC. Where such CBA is
registered, the petition may be filed
only within (60) days prior to its
expiry.
Hearing Officer Med-Arbiter
Med-Arbiter
Forms and
1) The name of petitioner, its address, 1) The name of petitioner, its address,
Contents of
and affiliation if appropriate, the
and affiliation if appropriate, the date
Petition
date and number of its certificate of
and number of its certificate of
registration. If the petition is filed
registration. If the petition is filed by
by a federation or national union,
a federation or national union, the
the date and number of the
date and number of the certificate of
certificate of registration or
registration or certificate of creation
certificate of creation of chartered
of chartered local;
local;
2) The name, address, and nature of
2) The name, address, and nature of
employers business;
employers business;
3) The description of the bargaining
3) The description of the bargaining
unit;
unit;
4) The approximate number of
4) The approximate number of
employees in the bargaining unit;
employees in the bargaining unit; 5) The names and addresses of other
5) The names and addresses of other
legitimate labor unions in the
legitimate labor unions in the
bargaining unit;
bargaining unit;
6) A statement indicating any of the
6) A statement indicating any of the
following:
following:
a. that the bargaining unit is
a. that the bargaining unit is
unorganized or that there is no
unorganized or that there is
registered collective
no registered collective
bargaining agreement
bargaining agreement
covering the employees in the

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covering the employees in
the bargaining unit;
b. if there exists a duly
registered collective
bargaining agreement, that
the petition is filed within the
60-day freedom period of
such agreement; or
c. if another union had been
previously recognized
voluntarily or certified in a
valid certification, consent or
run-off election, that the
petition is filed outside the 1year period from entry of
voluntary recognition or
conduct of certification or runoff election and no appeal
pending thereon.
7) Other relevant facts.
N.B. Petition must me verified under
oath by the president of the petitioning
labor organization or its duly
authorized representative.
Procedure
1) Raffle of the case to determine the
Med-Arbiter to be assigned to the
case;
2) Within (3) days from receipt of
petition, the Med-Arbiter shall
cause the service of notice of
preliminary conference upon the
employer and incumbent
bargaining agent which shall be
within (10) days from receipt of the
petition;
Note: A copy of the notice of
preliminary conference and petition for
certification election shall be posted in
at least (2) conspicuous places in the
establishment.
3) Motion for intervention by any
legitimate labor union other than
the incumbent bargaining agent
shall be filed at any time prior to
the decision of the Med-Arbiter.
Preliminary
Determination of:
Conference and 1) The bargaining unit to be
Hearing
represented;
2) Contending labor unions;
3) Such other matters as may be

109

bargaining unit;
b. if there exists a duly registered
collective bargaining
agreement, that the petition is
filed within the 60-day freedom
period of such agreement; or
c. if another union had been
previously recognized
voluntarily or certified in a valid
certification, consent or run-off
election, that the petition is
filed outside the 1-year period
from entry of voluntary
recognition or conduct of
certification or run-off election
and no appeal pending
thereon.
7) The signature of at least (25%) of all
employees in the appropriate
bargaining unit;
8) Other relevant facts.

1) Raffle of the case to determine the


Med-Arbiter to be assigned to the
case;
2) Within (3) days from receipt of
petition, the Med-Arbiter shall cause
the service of notice of preliminary
conference upon the employer and
incumbent bargaining agent which
shall be within (10) days from
receipt of the petition;
Note: A copy of the notice of preliminary
conference and petition for certification
election shall be posted in at least (2)
conspicuous places in the
establishment.
3) Motion for intervention by any
legitimate labor union other than the
incumbent bargaining agent shall be
filed during the freedom period of
the CBA to Med-Arbiter.
Determination of:
1) The bargaining unit to be
represented;
2) Contending labor unions;
3) Existence of any of the bars to

En Consulta scutarius compilation labor relations 2009


relevant for the final disposition of
the case.

certification election;
4) Such other matters as may be
relevant for the final disposition of
the case.
Hearings
Not exceed (15) days from the date of Not exceed (15) days from the date of
the scheduled preliminary conference. the scheduled preliminary conference.
Extensions of time shall not be
Extensions of time shall not be
entertained.
entertained.
Note: Failure to appear shall be
Note: Failure to appear shall be
deemed a waiver of its right to be
deemed a waiver of its right to be heard.
heard.
Order/Decision Within (10) days from the date of the
Within (10) days from the date of the
last hearing.
last hearing.
Note: No order or decision shall be
issued during the freedom period.
Contents of
1) The name of the employer or
1) The name of the employer or
Order Granting
establishment;
establishment;
the Petition
2) The description of the bargaining
2) The description of the bargaining
unit;
unit;
3) A statement that none of the
3) A statement that none of the
grounds for dismissal exists;
grounds for dismissal exists;
4) The names of the contending
4) The names of the contending labor
labor unions;
unions;
5) A directive upon the ER and the
5) A directive upon the ER and the
contending union(s) to submit
contending union(s) to submit
within (10) days from receipt of
within (10) days from receipt of
order, the certified list of
order, the certified list of employees
employees in the bargaining unit,
in the bargaining unit, or where
or where necessary, the payrolls
necessary, the payrolls covering
covering the members of the
the members of the bargaining unit
bargaining unit for the last (3)
for the last (3) months prior to the
months prior to the issuance of the
issuance of the order.
order.
Grounds for
1) The petitioner is not listed in the
1) The petitioner is not listed in the
Denial of Petition
Departments registry of legitimate
Departments registry of legitimate
labor unions;
labor unions;
2) The petitioners legal personality
2) The petitioners legal personality
has been revoked or cancelled
has been revoked or cancelled with
with finality in accordance with
finality in accordance with Rule XIV
Rule XIV of the Rules.
of the Rules;
Note: If petition for cancellation is still
pending, the petition for certification
election cannot be denied or
suspended on such ground. Until such
time that the registration has been
cancelled, the labor union enjoys legal
personality.
3) The petition was filed before or
after the freedom period of a duly
registered CBA; provided that the

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CONDUCT OF
ELECTION
Hearing Officer
Procedure

111

Unorganized Organization

sixty-day period based on the


original CBA shall not be affected
by any amendment, extension or
renewal of the CBA- CONTRACT
BAR RULE.
Note: The CBA has to be registered in
accordance with Art.231 of the LC.
4) The petition was filed within (1)
year from entry of voluntary
recognition, or a valid certification,
consent or run-off election and no
appeal on the results of the
certification, consent, or run-off
election is pending
CERTIFICATION YEAR BAR
RULE.
5) A duly certified union has
commenced and sustained
negotiations with the ER in
accordance with Art.250 of the LC
within the 1-year period referred to
in the preceding paragraph (
NEGOTIATION BAR RULE) or
there exists a bargaining deadlock
which had been submitted to
conciliation or arbitration or had
become the subject of a valid
notice of strike or lockout to which
an incumbent or certified
bargaining agent is a party
(DEADLOCK BAR RULE);
6) Failure to submit the (25%) support
requirement for the filing of the
petition for certification election.
Organized Organization

Election Officer
Election Officer
1) Within 24 hours from receipt of the 1) Within 24 hours from receipt of the
notice of entry of final judgment,
notice of entry of final judgment, the
the case shall be raffled to an
case shall be raffled to an Election
Election Officer who shall have
Officer who shall have control of the
control of the pre-election
pre-election conference and
conference and election
election proceedings.
proceedings.
3) Within 24 hours from receipt of the
2) Within 24 hours from receipt of the
assignment, the Election Officer
assignment, the Election Officer
shall cause the issuance of notice
shall cause the issuance of notice
of pre-election conference upon the
of pre-election conference upon
contending unions and the
the contending unions and the
employer, which shall be scheduled
employer, which shall be
within 10 days from receipt of

En Consulta scutarius compilation labor relations 2009


scheduled within 10 days from
receipt of assignment.
Pre-election
Set Mechanics and Determination
Conference
of:
1) Date, time and place of the
election, which shall not be later
Note: The role
than 45 days from the date of first
of the ER is a
pre-election conference, and shall
mere bystander
be on a regular working day and
while the
within the employer's premises,
representative of
unless circumstances require
the DOLE is a
otherwise;
mere observer in
2)
List of eligible and challenged
Certification
voters;
Election. They
are not parties. 3) Number and location of polling
places or booths and the number
Only the
of ballots to be prepared with
employees are
appropriate translations, if
parties
necessary;
themselves.
4) Name of watchers or
representatives and their
alternatives for each of the parties
during the election;
5) Mechanics and guidelines of
election.
Note: Failure to appear shall be
considered as a waiver to be present
and to question or object to any of the
agreements. However, it shall not be
deprived of the right to be furnished
notices of subsequent pre-election
conferences and to attend the same.
Failure of
It shall not bar the filing of a motion for
Election
the immediate holding of another
- it is where the certification or consent election within
number of votes (6) months from date of declaration of
cast in a
failure of election.
certification or
consent election
is less than the
majority of the
number of
eligible voters
and there are no
material
challenged
votes.
Proclamation The Med-Arbiter from receipt of the
and Certification minutes and results of election, shall
of Result
issue an order proclaiming the results

112

assignment.
Set Mechanics and Determination
of:
1) Date, time and place of the election,
which shall not be later than 45
days from the date of first preelection conference, and shall be on
a regular working day and within the
employer's premises, unless
circumstances require otherwise;
1) List of eligible and challenged
voters;
2) Number and location of polling
places or booths and the number of
ballots to be prepared with
appropriate translations, if
necessary;
3) Name of watchers or
representatives and their
alternatives for each of the parties
during the election;
4) Mechanics and guidelines of
election.
Note: Failure to appear shall be
considered as a waiver to be present
and to question or object to any of the
agreements. However, it shall not be
deprived of the right to be furnished
notices of subsequent pre-election
conferences and to attend the same.
It shall not bar the filing of a motion for
the immediate holding of another
certification or consent election within (6)
months from date of declaration of failure
of election.

The Med-Arbiter from receipt of the


minutes and results of election, shall
issue an order proclaiming the results of

En Consulta scutarius compilation labor relations 2009

Appeal or
Remedies

of the elections and certifying the union the elections and certifying the union
which obtained a majority of the valid which obtained a majority of the valid
votes cast as the sole and exclusive
votes cast as the sole and exclusive
bargaining unit under any of the
bargaining unit under any of the
following conditions:
following conditions:
1) No protest was filed or even if one 3) No protest was filed or even if one
was filed, same was not perfected
was filed, same was not perfected
within the 5-day period for
within the 5-day period for
perfection of the protest;
perfection of the protest;
2) No challenge or eligibility issue
4) No challenge or eligibility issue was
was raised or, even if one was
raised or, even if one was raised,
raised, the resolution of the same
the resolution of the same will not
will not materially change the
materially change the results of the
results of the election.
election.
Note: Where majority of the valid
Note: Where majority of the valid votes
votes cast results in No Union
cast results in No Union obtaining the
obtaining the majority, the Med-Arbiter majority, the Med-Arbiter shall declare
shall declare such fact in the order.
such fact in the order.
Any party to an election may appeal the Any party to an election may appeal the
results of the election as determined by results of the election as determined by
the Med-Arbiter directly to the SOLE on the Med-Arbiter directly to the SOLE on
the ground that the rules and
the ground that the rules and regulations
regulations or parts thereof for the
or parts thereof for the conduct of
conduct of certification election have
certification election have been violated.
been violated.

Note: ORGANIZED ESTABLISHMENT refers to an enterprise where there exists a


recognized or certified sole and exclusive bargaining unit.
CONSENT ELECTION refers to the process of determining through secret ballot the
sole and exclusive representative of the employees in an appropriate bargaining unit for
purposes of collective bargaining or
negotiation voluntarily agreed
upon by the parties, with or without the intervention of the DOLE.
1) - In case the contending unions agree to a consent election, the Med-Arbiter shall
not issue a formal order calling for the conduct of certification election, but shall
enter the fact of the agreement in the minutes of the hearing of the preliminary
conference signed by the parties and attested by the Med-Arbiter.
2) - It shall constitute a bar to the holding of a certification election for (1) year from
the holding of such consent election.
3)
RUN-OFF ELECTION refers to an election between the labor unions receiving the (2)
highest number of votes in a certification or consent election with (3) or more choices,
where such certified or consent election results
in none of the (3) or more
choices receiving the majority of the valid votes cast; provided that the total number of
votes for all contending unions is at least (50%) of the number of votes cast.
Note: NO UNION shall not be a choice in the run-off election.
4.

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Bargaining Unit

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BARGAINING UNIT refers to a group of employees sharing mutual interests within a given
employer unit, comprised of all or less than all of the entire body of employees in the employer
unit or any specific occupational or geographical grouping within such employer unit. (DO 4003)
5. Jurisdictional Preconditions to Collective Bargaining
3) Possession of the status of majority representation of the employees representative;
4) Proof of majority representation;
5) A demand to bargain.
6. Duty to Bargain
Situation One (without CBA; Art.251 LC)
- It is the mutual obligation of the employer and the employees majority union to
meet and convene for the purpose of:
1) negotiating an agreement on the subjects of:
a. wages;
b. hours of work; and
c. all other terms and conditions of employment including proposals for
adjusting grievances or questions arising under such agreement; and
2) executing a contract incorporating such agreement if requested by either
party.
- Kind of Compliance: (1) prompt; (2) expeditious; and (3) in good faith.
- Limitations of the duty are that it does not compel any party:
(1) to agree to a proposal; or
(2) to make a concession.
Situation Two (with CBA; Art.253 LC)
- The duty to bargain means all of the above and, additionally:
xxx
xxx
xxx
3) not to terminate or modify the CBA during its lifetime.
- But (60) days before the CBA expires, either party may notify the other,
in writing that it desires to terminate or modify the negotiable provisions of the
agreement. During the 60-day period and until a new agreement is reached, the CBA
remains in full force and effect and the parties are duty-bound to keep the status quo.
7. Violations of Right to Bargain
Amounts to ULP; is committed in the following forms:
1. failure or refusal to meet and convene;
2. evading the purposes of bargaining;
3. not observing good faith in bargaining; and/or
4. grossly violating the economic provisions of the CBA.
8. Right to Collective Bargaining
Single Enterprise Bargaining/Decentralized Bargaining
When available:

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- any voluntarily recognized or certified labor union may demand negotiations
with its employer for terms and conditions of work covering employees in the
bargaining unit concerned.
Procedure:
- a recognized or certified labor union that desires to negotiate with its employer shall
submit such intention in writing to the employer, together with its proposals for
collective bargaining;
- the recognized or certified labor union and its employer may adopt such procedures
and processes they deem appropriate and necessary for the early termination of
their negotiations;
- they shall:
1) name their respective representatives;
2) schedule the number and frequency of meetings;
3) agree on wages, benefits and other terms and conditions of work for
all employees covered in the bargaining unit.
Multi-Employer Bargaining
When available:
- a legitimate labor union(s) and employers may agree in writing to come
together for the purpose of collective bargaining, provided:
1) only legitimate labor unions who are incumbent exclusive bargaining
agents may participate and negotiate in multi-employer bargaining;
2) only employers with counterpart legitimate labor unions who are
incumbent bargaining agents may participate and negotiate in multiemployer bargaining; and
3) only those legitimate labor unions who pertain to employer units who
consent to multi-employer bargaining may participate in multi-employer
bargaining.
Procedure:
(1) Legitimate labor unions who desire to negotiate with their employers
collectively shall execute a written agreement among themselves, which shall contain the
following:
a. the names of the labor unions who desire to avail of multiemployer bargaining;
b. each labor union in the employer unit;
c. the fact that each of the labor unions are the incumbent
exclusive bargaining agent of their respective employer
units;
d. the duration of the collective bargaining agreements, if any,
entered into by each labor union with their respective
employers.
Note: Legitimate labor unions who are members of the same
registered federation, national, or industry union are exempt from
execution of this written agreement.
(2) The legitimate labor unions who desire to bargain with multi-employers
shall send a written notice to this effect to each employer concerned.
The written agreement stated in the preceding paragraph, or the

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certificates of registration of the federation, national, or industry union,
shall accompany said notice.
Employers who agree to group themselves or use their existing
associations to engage in multi-employer bargaining shall send a
written notice to each of their counterpart legitimate labor unions
indicating their desire to engage in multi-employer bargaining and shall
indicate the following:
a. the names of the employers who desire to avail of multiemployer bargaining;
b. their corresponding legitimate labor organizations;
c. the fact that each corresponding legitimate union is any
incumbent exclusive bargaining agent;
d. the duration of the current CBA, if any, entered into by
each employer with the counterpart legitimate labor union.
(3) Each employer or concerned labor union shall express its willingness
or refusal to participate in multi-employer bargaining in writing,
addressed to its corresponding exclusive bargaining agent or
employer.
Note:Negotiations may commence only with regard to respective
employers and labor unions who consent to participate in multiemployer bargaining.
(4) During the course of the negotiations, consenting employers and the
corresponding legitimate labor unions shall discuss and agree on the
following:
a. the manner by which negotiations shall proceed;
b. the scope and coverage of the negotiations and the
agreement; and
c. where appropriate, the effect of the negotiations on current
agreements or conditions of employment among the
parties
9.

When to Bargain
- if the jurisdictional preconditions are present, the collective bargaining should
begin within the (12) months following the determination and certification of the
employees exclusive bargaining representative (CERTIFICATION YEAR).

10. Contents of CBA


The subjects of provisions commonly found in collective bargaining agreements are:
7. Enumeration or reservation of management rights
8. Union recognition and security
9. Wage and fringe benefits and their administration
10. Physical working conditions
11. Selected personnel management and plant operation practices
12. Grievance and arbitration
13. Duration of contract
14. Programs to promote drug-free workplace (required under RA 9165)
11. Grievance machinery

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Art. 260. Grievance machinery and voluntary arbitration. The parties to a
Collective Bargaining Agreement shall include therein provisions that will ensure the mutual
observance of its terms and conditions. They shall establish a machinery for the adjustment
and resolution of grievances arising from the interpretation or implementation of their
Collective Bargaining Agreement and those arising from the interpretation or enforcement of
company personnel policies.
All grievances submitted to the grievance machinery which are not settled within
seven (7) calendar days from the date of its submission shall automatically be referred to
voluntary arbitration prescribed in the Collective Bargaining Agreement.
For this purpose, parties to a Collective Bargaining Agreement shall name and
designate in advance a Voluntary Arbitrator or panel of Voluntary Arbitrators, or include in
the agreement a procedure for the selection of such Voluntary Arbitrator or panel of
Voluntary Arbitrators, preferably from the listing of qualified Voluntary Arbitrators duly
accredited by the Board. In case the parties fail to select a Voluntary Arbitrator or panel of
Voluntary Arbitrators, the Board shall designate the Voluntary Arbitrator or panel of Voluntary
Arbitrators, as may be necessary, pursuant to the selection procedure agreed upon in the
Collective Bargaining Agreement, which shall act with the same force and effect as if the
Arbitrator or panel of Arbitrators has been selected by the parties as described above.
Definition of Terms:
Grievanceis any question by either the employer or the union regarding the
interpretation or application of the collective bargaining agreement or company personnel
policies or any claim by either party that the other party is violating any provision of the CBA or
company personnel policies. It is a complaint or dissatisfaction arising from the interpretation or
implementation of the CBA and those arising from interpretation or enforcement of personnel
policies.
Company/Personnel Policies- are guiding principles stated in broad, long-range terms
that express the philosophy or beliefs of an organizations top authority regarding personnel
matters. They deal with matters affecting efficiency and well-being of employees and
include, among others, the procedures in the administration of wages, benefits, promotions,
transfer and other personnel movements which are usually not spelled out in the collective
bargaining agreement.
Grievance Machinery- refers to the mechanism for the adjustment and resolution of
grievances arising from the interpretation or implementation of a CBA and those arising from the
interpretation or enforcement of company personnel policies. It is part of the continuing process
of collective bargaining.
12. Union Security Clause
A union security clause is a stipulation in the CBA whereby the management recognizes
that the membership of employees in the union which negotiated said agreement should be
maintained and continued as a condition for employment or retention of employment. The
obvious purpose is to safeguard and ensure the continued existence of the union.
Types:
8. Closed shop agreement
9. Maintenance of membership agreement
10. Union shop agreement
11. Modified union shop agreement

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12. Exclusive bargaining agreement
13. Bargaining for members only agreement
14. Agency shop agreement
15. Preferential hiring agreement
13. Drug-Free Workplace
Republic Act No. 9165
Comprehensive Dangerous Drugs Act of 2002
June 07, 2002
Article V. Promotion of a National Drug-Free Workplace Program with the Participation of
Private and Labor Sectors and the Department of Labor and Employment
Section 47. Drug-Free Workplace. It is deemed a policy of the State to promote
drug-free workplaces using a tripartite approach. With the assistance of the Board, the
Department of Labor and Employment (DOLE) shall develop, promote and implement a national
drug abuse prevention program in the workplace to be adopted by private companies with ten
(10) or more employees. Such program shall include the mandatory drafting and adoption of
company policies against drug use in the workplace in close consultation and coordination with
the DOLE, labor and employer organizations, human resource development managers and
other such private sector organizations.
Section 48. Guidelines for the National Drug-Free Workplace Program.
The Board and the DOLE shall formulate the necessary guidelines for the
implementation of the national drug-free workplace program. The amount necessary for the
implementation of which shall be included in the annual General Appropriations Act.
Article VI.

Participation of the Private and Labor Sectors in the Enforcement of this Act

Section 49. Labor Organizations and the Private Sector.


All
labor
unions, federations, associations, or organizations in cooperation with the respective private
sector partners shall include in their collective bargaining or any similar agreements, joint
continuing programs and information campaigns for the laborers similar to the programs
provided under Section 47 of this Act with the end in view of achieving a drug free workplace.
Section 50. Government Assistance. The labor sector and the respective
partners may, in pursuit of the programs mentioned in the preceding Section, secure the
technical assistance, such as but not limited to, seminars and information dissemination
campaigns of the appropriate government and law enforcement agencies.
14. Mandatory Subjects of Bargaining
3. Provision on wage increases;
4. Provision on grievance machinery and voluntary arbitration;
5. A no strike, no lockout clause
Art. 252. Meaning of duty to bargain collectively. The duty to bargain collectively
means the performance of a mutual obligation to meet and convene promptly and
expeditiously in good faith for the purpose of negotiating an agreement with respect to

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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.
15. Impasse
-A point at which no further progress can be made.
-A situation that is so difficult that no progress can be made; a deadlock or a stalemate:
i.e. reached an impasse in the negotiations.
16. Boulwarism
It is an unfair labor practice to make a proposal which is not subject to bargaining. In a
US case, the employers firm and final offer, accompanied by a take-it-or-leave-it strategy,
was presented through a barrage of publicity praising the fairness of the package and
picturing the company (not the union) as the employees true representative. In effect, there
was to be no bargaining and the union was rendered ineffective or irrelevant. The company
dealt with the union through the employees rather than with the employees through the union.
This strategy, called Boulwarism because if was first used by a Mr. Boulware, is construed by a
US court as bad-faith bargaining, hence an unfair labor practice.
17. Ratification of CBA: when needed?
-The agreement negotiated by the employees bargaining agent should be ratified or
approved by the majority of all the workers in the bargaining unit, as provided under Article
231of the Labor Code.
The ratification and the way to do it are mandatory. The CBA should be posted for at
least five (5) days in two (2) conspicuous places in the establishment before ratification, to
enable the workers to inform themselves of its provisions. Moreover, the CBA to be submitted
to the DOLE should carry the sworn statement of the union secretary, attested to be the union
president, that the CBA had been duly posted and ratified. There requirements are mandatory;
non-compliance makes the CBA ineffective.
Art. 231. Registry of unions and file of collective bargaining agreements. The
Bureau shall keep a registry of legitimate labor organizations. The Bureau shall also maintain a
file of all collective bargaining agreements and other related agreements and records of
settlement of labor disputes and copies of orders and decisions of voluntary arbitrators. The file
shall be open and accessible to interested parties under conditions prescribed by the Secretary
of Labor and Employment, provided that no specific information submitted in confidence shall be
disclosed unless authorized by the Secretary, or when it is at issue in any judicial litigation, or
when public interest or national security so requires.
Within thirty (30) days from the execution of a Collective Bargaining Agreement, the
parties shall submit copies of the same directly to the Bureau or the Regional Offices of the
Department of Labor and Employment for registration, accompanied with verified proofs of its
posting in two conspicuous places in the place of work and ratification by the majority of all the
workers in the bargaining unit. The Bureau or Regional Offices shall act upon the application for
registration of such Collective Bargaining Agreement within five (5) calendar days from receipt
thereof. The Regional Offices shall furnish the Bureau with a copy of the Collective Bargaining
Agreement within five (5) days from its submission.
The Bureau or Regional Office shall assess the employer for every Collective Bargaining
Agreement a registration fee of not less than one thousand pesos (P1,000.00) or in any other

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amount as may be deemed appropriate and necessary by the Secretary of Labor and
Employment for the effective and efficient administration of the Voluntary Arbitration Program.
Any amount collected under this provision shall accrue to the Special Voluntary Arbitration Fund.
The Bureau shall also maintain a file and shall undertake or assist in the publication of
all final decisions, orders and awards of the Secretary of Labor and Employment, Regional
Directors and the Commission. (As amended by Section 15, Republic Act No. 6715, March 21,
1989)
18. Ratification of CBA: when NOT needed?
-Ratification of the CBA by the employees in the bargaining unit is not needed when the
CBA is a product of an arbitral award by appropriate government authority or a voluntary
arbitrator.
19. Registration of CBA
-The collective agreement, having been properly ratified, should be registered with the
DOLE Regional Office where the bargaining union is registered or where it principally operates.
Art. 231 requires the registration within thirty (30) calendar days from the execution of the
agreement. Multi-employer collective bargaining agreement shall be filed with the Bureau.
Requirements for Registration
Sec. 2, Rule XVII, DO No. 40-03 provides:
The application for CBA registration shall be accompanied by the original and two (2)
duplicate copies of the following documents which mush be certified under oath by the
representative(s) of the employer(s) and labor union(s) concerned:
(c) the collective bargaining agreement;
(d)
a statement that the collective bargaining agreement was posted in at least two (2)
conspicuous places in the establishment/s concerned for at least five (5) days before
its ratification; and
(e) a statement that the collective bargaining agreement was ratified by the majority of
the employees in the bargaining unit of the employer or employers concerned.
No other document shall be required in the registration of collective bargaining
agreement.
20. Term of CBA
-A CBA lasts for five (5) years for the representation aspect and not more than three (3)
years for all other provisions. The representation aspect refers to the identity and majority
status of the union that negotiated the CBA as the exclusive bargaining representative. All
other provisions simply refers to the rest of the CBA, economic as well as non-economic,
except representational, provisions.
Representation aspect (sole and exclusive status of certified union):
- The term is 5 years which means that no petition questioning the majority status of the
incumbent bargaining agent shall be entertained by DOLE and no certification election shall be
conducted outside of the 60-day freedom period.
All other provisions
(which refer to both economic and non-economic provisions except
representation):
2. Shall be renegotiated not later than three (3) years after its execution.

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Art. 253-A. Terms of a collective bargaining agreement. Any Collective Bargaining


Agreement that the parties may enter into shall, insofar as the representation aspect is
concerned, be for a term of five (5) years. No petition questioning the majority status of the
incumbent bargaining agent shall be entertained and no certification election shall be conducted
by the Department of Labor and Employment outside of the sixty-day period immediately before
the date of expiry of such five-year term of the Collective Bargaining Agreement. All other
provisions of the Collective Bargaining Agreement shall be renegotiated not later than three (3)
years after its execution. Any agreement on such other provisions of the Collective Bargaining
Agreement entered into within six (6) months from the date of expiry of the term of such other
provisions as fixed in such Collective Bargaining Agreement, shall retroact to the day
immediately following such date. If any such agreement is entered into beyond six months, the
parties shall agree on the duration of retroactivity thereof. In case of a deadlock in the
renegotiation of the Collective Bargaining Agreement, the parties may exercise their rights under
this Code. (As amended by Section 21, Republic Act No. 6715, March 21, 1989)
21. Renegotiation / Retroactivity of CBA
If the CBA is the very first for the bargaining unit, the Code does not state any rule on the
CBAs effectivity date. The parties have to decide it for themselves. But if the ensuing CBA is
renewal, modification or renegotiation of an expiring one, the Code offers a formula for the
effectivity date. Art. 253-A provides that the ensuing agreement, if entered into within six (6)
months from expiry of the old one, shall retroact to the date following such expiry date. For
example, if the CBA expired on December 31 and the new one is concluded on, say, March 31,
its effectivity date is January 1. If on the other hand, the new agreement is concluded after June
30, then the matter of retroaction and the possible retroactive date are left to the parties.
The determining point is the date the parties agreed, not the date they signed.
a. Rule involving CBAs concluded by the parties through negotiation (not concluded
through arbitral award).
1. The collective bargaining agreement or other provisions of such agreement entered
into within six (6) months from the date of expiry of the term of such other provisions as fixed in
the collective bargaining agreement shall retroact to the day immediately following such date.
2. If any such agreement is entered into beyond six (6) months, the parties shall agree
on the date of effectivity thereof.
b. Rule involving CBAs concluded through arbitral awards by DOLE Secretary, NLRC or
Voluntary Arbitrator (Jurisprudence varies).
In case of arbitral awards, the retroactivity of the CBA provided under Article 253-A of the
Labor Code (enumerated above) has no application. Thus, the Supreme Court ruled:
In St. Luke's Medical Center, Inc. vs. Torres, [223 SCRA 779 (1993)], the effectivity date
was made retroactive to the date of the expiration of the previous CBA.
In Pier 8 Arrastre and Stevedoring Services, Inc. vs. Roldan-Confesor, [241 SCRA 294,
307 (1995)], the effective date of the new CBA should be the date the Secretary of Labor and
Employment has resolved the labor dispute.
In Manila Electric Company vs. Quisumbing, [G. R. No. 127598, January 27, 1999, 302
SCRA 173, 209], the effectivity date was made prospective per its January 27, 1999 ruling.
Later, per its February 22, 2000 ruling in the same case which was rendered upon motion for
reconsideration, the effectivity of the CBA was made retroactive. But later, in its August 1, 2000
ruling which was rendered after a Motion for Partial Reconsideration was filed by Meralco, the
Supreme Court finally changed the effectivity date thereof. It held that the arbitral award should

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retroact to the first day after the six-month period following the expiration of the last day of the
CBA, i.e., from June 1, 1996 to May 31, 1998.
LATEST RULING: In the case of LMG Chemicals Corporation vs. Secretary of DOLE,
(G. R. No. 127422, April 17, 2001), the Supreme Court ruled that retroactivity of CBA in arbitral
awards is subject to the discretion of the DOLE Secretary.
Hold-Over Principle
In the absence of a new CBA, the parties must maintain the status quo and must
continue in full force and effect the terms and conditions of the existing agreement until a new
agreement is reached. (automatic renewal clause)
What are the remedies in case of CBA deadlock?
In case of a deadlock in the negotiation or renegotiation of the collective
bargaining agreement, the parties may exercise the following rights under the Labor Code:
1. Conciliation and mediation by the NCMB, DOLE.
2. Declaration of a strike or lockout, as the case may be.
3. Referral of case to compulsory or voluntary arbitration.
22. Right to financial statements
Art. 242. Rights of legitimate labor organizations. A legitimate labor organization shall
have the right:
(c) To be furnished by the employer, upon written request, with its annual audited
financial statements, including the balance sheet and the profit and loss statement, within thirty
(30) calendar days from the date of receipt of the request, after the union has been duly
recognized by the employer or certified as the sole and exclusive bargaining representative of
the employees in the bargaining unit, or within sixty (60) calendar days before the expiration of
the existing collective bargaining agreement, or during the collective bargaining negotiation;
**To better equip the union in preparing for or in negotiating with the employer, the law
(Art. 242 [c]) gives it the right to be furnished with the employers audited financial statements.
There are four (4) points in time when the union may ask in writing for these statements:
4.

After the union has been recognized by the employer as sole bargaining
representative of the employees in the bargaining unit; or
5. After the union is certified by the DOLE as such sole bargaining representative; or
6. Within the last 60 days of the live of the CBA; or
7. During the collective bargaining negotiation.
The audited financial statements, including the balance sheet and the profit and loss
statement, should be provided by the employer within 30 calendar days after receipt of the
unions request.
23. Right to policy and decision making process
Art. 255. Exclusive bargaining representation and workers participation in policy and
decision-making. The labor organization designated or selected by the majority of the
employees in an appropriate collective bargaining unit shall be the exclusive representative of
the employees in such unit for the purpose of collective bargaining. However, an individual

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employee or group of employees shall have the right at any time to present grievances to their
employer.
Any provision of law to the contrary notwithstanding, workers shall have the right, subject
to such rules and regulations as the Secretary of Labor and Employment may promulgate, to
participate in policy and decision-making processes of the establishment where they are
employed insofar as said processes will directly affect their rights, benefits and welfare. For this
purpose, workers and employers may form labor-management councils: Provided, That the
representatives of the workers in such labor-management councils shall be elected by at least
the majority of all employees in said establishment. (As amended by Section 22, Republic Act
No. 6715, March 21, 1989)
**only available on matters directly affecting the employees
24. Right to engage in peaceful concerted activities
Art. 263. Strikes, picketing and lockouts.
a. It is the policy of the State to encourage free trade unionism and free collective
bargaining.
b. Workers shall have the right to engage in concerted activities for purposes of collective
bargaining or for their mutual benefit and protection. The right of legitimate labor
organizations to strike and picket and of employers to lockout, consistent with the
national interest, shall continue to be recognized and respected. However, no labor
union may strike and no employer may declare a lockout on grounds involving interunion and intra-union disputes.
c. In case of bargaining deadlocks, the duly certified or recognized bargaining agent may
file a notice of strike or the employer may file a notice of lockout with the Ministry at least
30 day before the intended date thereof. In cases of unfair labor practice, the period of
notice shall be 15 days and in the absence of a duly certified or recognized bargaining
agent, the notice of strike may be filed by any legitimate labor organization in behalf of its
members. However, in case of dismissal from employment of union officers duly elected
in accordance with the union constitution and by-laws, which may constitute union
busting, where the existence of the union is threatened, the 15-day cooling-off period
shall not apply and the union may take action immediately. (As amended by Executive
Order No. 111, December 24, 1986)
d. The notice must be in accordance with such implementing rules and regulations as the
Minister of Labor and Employment may promulgate.
e. During the cooling-off period, it shall be the duty of the Ministry to exert all efforts at
mediation and conciliation to effect a voluntary settlement. Should the dispute remain
unsettled until the lapse of the requisite number of days from the mandatory filing of the
notice, the labor union may strike or the employer may declare a lockout.
f. A decision to declare a strike must be approved by a majority of the total union
membership in the bargaining unit concerned, obtained by secret ballot in meetings or
referenda called for that purpose. A decision to declare a lockout must be approved by a
majority of the board of directors of the corporation or association or of the partners in a
partnership, obtained by secret ballot in a meeting called for that purpose. The decision
shall be valid for the duration of the dispute based on substantially the same grounds
considered when the strike or lockout vote was taken. The Ministry may, at its own
initiative or upon the request of any affected party, supervise the conduct of the secret
balloting. In every case, the union or the employer shall furnish the Ministry the results of

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the voting at least seven days before the intended strike or lockout, subject to the
cooling-off period herein provided. (As amended by Batas Pambansa Bilang 130, August
21, 1981 and further amended by Executive Order No. 111, December 24, 1986)
g. When, in his opinion, there exists a labor dispute causing or likely to cause a strike or
lockout in an industry indispensable to the national interest, the Secretary of Labor and
Employment may assume jurisdiction over the dispute and decide it or certify the same
to the Commission for compulsory arbitration. Such assumption or certification shall
have the effect of automatically enjoining the intended or impending strike or lockout as
specified in the assumption or certification order. If one has already taken place at the
time of assumption or certification, all striking or locked out employees shall immediately
return-to-work and the employer shall immediately resume operations and readmit all
workers under the same terms and conditions prevailing before the strike or lockout. The
Secretary of Labor and Employment or the Commission may seek the assistance of law
enforcement agencies to ensure compliance with this provision as well as with such
orders as he may issue to enforce the same.
In line with the national concern for and the highest respect accorded to the right of
patients to life and health, strikes and lockouts in hospitals, clinics and similar medical
institutions shall, to every extent possible, be avoided, and all serious efforts, not only by
labor and management but government as well, be exhausted to substantially minimize,
if not prevent, their adverse effects on such life and health, through the exercise,
however legitimate, by labor of its right to strike and by management to lockout. In labor
disputes adversely affecting the continued operation of such hospitals, clinics or medical
institutions, it shall be the duty of the striking union or locking-out employer to provide
and maintain an effective skeletal workforce of medical and other health personnel,
whose movement and services shall be unhampered and unrestricted, as are necessary
to insure the proper and adequate protection of the life and health of its patients, most
especially emergency cases, for the duration of the strike or lockout. In such cases,
therefore, the Secretary of Labor and Employment may immediately assume, within
twenty four (24) hours from knowledge of the occurrence of such a strike or lockout,
jurisdiction over the same or certify it to the Commission for compulsory arbitration. For
this purpose, the contending parties are strictly enjoined to comply with such orders,
prohibitions and/or injunctions as are issued by the Secretary of Labor and Employment
or the Commission, under pain of immediate disciplinary action, including dismissal or
loss of employment status or payment by the locking-out employer of backwages,
damages and other affirmative relief, even criminal prosecution against either or both of
them.
The foregoing notwithstanding, the President of the Philippines shall not be precluded
from determining the industries that, in his opinion, are indispensable to the national
interest, and from intervening at any time and assuming jurisdiction over any such labor
dispute in order to settle or terminate the same.
h. Before or at any stage of the compulsory arbitration process, the parties may opt to
submit their dispute to voluntary arbitration.
i. The Secretary of Labor and Employment, the Commission or the voluntary arbitrator
shall decide or resolve the dispute, as the case may be. The decision of the President,
the Secretary of Labor and Employment, the Commission or the voluntary arbitrator shall
be final and executory ten (10) calendar days after receipt thereof by the parties. (As
amended by Section 27, Republic Act No. 6715, March 21, 1989)
**right to engage in lawful concerted activities:
-constitutional right of a labor organization

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-available to a legitimate labor organization which has not been certified or recognized
bargaining union on ground of ULP
**if a certified or recognized bargaining union, may strike on grounds of:
2. ULP
3. Bargaining deadlock
25. Forms of concerted activities
On the part of the EMPLOYEES:
1. Strike
-any temporary stoppage of work by the concerted action of the employees as a
result of an industrial or labor dispute. It consists not only of concerted work stoppages
but also slowdowns, mass leaves, sitdowns, attempts to damage, destroy or sabotage
plant equipment and facilities and similar activities.
2. Picketing
-or peaceful picketing is the right of workers to peacefully march to and fro
before an establishment involved in a labor dispute generally accompanied by the
carrying and display of signs, placards and banners intended to inform the public about
the dispute.
3. Boycott
-the concerted refusal to patronize an employers goods or services and to
persuade other to a like refusal.
On the part of the EMPLOYER:
1. Lockout
-any temporary refusal of an employer to furnish work as a result of an industrial
or labor dispute.
What is an industrial or labor dispute?
An industrial or labor dispute includes any controversy or matter concerning terms
and conditions of employment or the 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.
26. Strike and lockout: constitutional and statutory basis
Right to Strike and Lockout
The right to strike is a constitutional and legal right of the workers as employers have the
right to lockout, all within the context of labor relations and collective bargaining. Subject to the
enactment by Congress of amendments or a new law on labor relations, the provisions of
existing laws shall govern the exercise of those rights.
Constitutional Basis
Section 3, Article XIII, 1987 Constitution
Section 3. The State shall afford full protection to labor, local and overseas,
organized and unorganized, and promote full employment and equality of employment
opportunities for all.

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It shall guarantee the rights of all workers to self-organization, collective
bargaining and negotiations, and peaceful concerted activities, including the right to
strike in accordance with law. They shall be entitled to security of tenure, humane
conditions of work, and a living wage. They shall also participate in policy and decisionmaking processes affecting their rights and benefits as may be provided by law.
The State shall promote the principle of shared responsibility between workers
and employers and the preferential use of voluntary modes in settling disputes, including
conciliation, and shall enforce their mutual compliance therewith to foster industrial
peace.
The State shall regulate the relations between workers and employers,
recognizing the right of labor to its just share in the fruits of production and the right of
enterprises to reasonable returns to investments, and to expansion and growth.
Statutory Basis
See Article 263, Labor Code of the Philippines (PD 442)
27. Kinds and Forms of Strike
1. AS TO EXTENT
a. GENERAL STRIKE extends over a whole community, province, state or
country.
b. LOCAL OR PARTICULAR STRIKE one undertaken by workers in a particular
enterprise, locality, or occupation.
2. AS TO THE NATURE OF THE ACT
c. STRIKE PROPER
d. SIT-DOWN STRIKE when a group of employees or others interested in
obtaining a certain objective in a particular business establish themselves within
the plant, stop its production and refuse access to the owners or to others
desiring to work.
e. PARTIAL OR QUICKIE STRIKE intermittent, unannounced work stoppage,
including slowdowns, unauthorized extension of rest periods, and walkouts for
portions of a shift or for entire shifts.
3. AS TO THE DEGREE OF EMPLOYEE INTEREST
f. PRIMARY STRIKE one declared by the employees who have a direct and
immediate interest, whether economic or otherwise, in the subject of the dispute
which exists between them and the employer.
g. SECONDARY STRIKE a coercive measure adopted by workers against an
employer connected by product or employment with alleged unfair labor
conditions or practices.
h. SYMPATHETIC STRIKE one in which the striking employees have no demands
or grievances of their own, but strike for the purpose of directly or indirectly aiding
others, without direct relation to the advancement of the interest of the strikers.
4. AS TO NATURE OR PURPOSE OF EMPLOYEE INTEREST
i. ECONOMIC STRIKE intended to force wage and other concessions from the
employer which he is not required by law to grant.
j. ULP STRIKE called against the unfair labor practice of the employer.

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28. Categories of Illegal Stike


1. Violation of a legal prohibition
-it is illegal for government employees to stage a strike.
2. Non-observance of procedural requirements
-procedural requisites that must be observed are: filing of notice of strike, observance of
cooling-off period, taking of strike vote, and observance of the seven-day strike-vote
report period.
3. Strike based on non-strikeable grounds
-the Labor Code recognizes only 2 strikeable grounds: collective bargaining deadlock
and unfair labor practice.
4. The means employed are illegal.
-use of threats, coercion or violence are illegal.
-even if the purpose of a strike is valid, the strike may still be held invalid where the
means employed are illegal.
-however, where violence was committed on both sides during a strike, such violence
cannot be a ground for declaring the strike as illegal.
6. Strike after assumption of jurisdiction by the President or the Secretary of Labor or after
certification or submission of the dispute to compulsory or voluntary arbitration.
7. Violation of the agreement of the parties or the no strike / no lockout clause in the CBA.
29. NCMB MANUAL OF PROCEDURE FOR CONCILIATION AND PREVENTIVE
MEDIATION (See Annex)
30. Strike
Any temporary stoppage of work by the concerted action of employees as a result of an
industrial or labor dispute.
31. Notice of Stike
Notification filed by a duly registered labor union with the appropriate NCMB regional branch
informing the latter of its intention to go on strike because of alleged commission by the
employer of ULP act/s or because of deadlock in collective bargaining negotiations.
32. Strike Area
The establishment, warehouses, depots, plants or office, including the sites or premises used as
run-away shops of the employer struck against, as well as the vicinity actually used by picketing
strikers in moving to and fro before all points of entrance to an exit of said establishment.
33. Where to File
Regional branch of the NCMB having jurisdiction over the workplace of the union members.
34. Who May File
b. any certified or duly recognized bargaining representative.
c. If there is none, any legitimate labor organization (for ULP only)
35. Grounds For Strikeand Lock-out
e. Bargaining deadlocks;
f. ULP;
g. Flagrant &/or malicious refusal to comply with the economic provisions of the collective
bargaining agreement.

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36. Validity of "No Strike" Clause


A no strike / no lockout clause in the CBA is VALID because parties may freely stipulate as long
as such stipulation is not contrary to law, morals and public policy. It is applicable only to
economic strikes. If the strike is founded on a ULP of the employer, a strike declared by the
union cannot be considered a violation of the no strike clause.
37. Strikeable Issues
b.
bargaining deadlock
c.
unfair labor practice
38. Non-Strikeable Issues
f. Intra-union disputes
g. Inter-union disputes
h. Issues submitted to arbitration
i. Political provisions of the CBA
j. Wage distortion
k. Interpretation and implementation of the provisions of the CBA
* in the absence of strikeable issues, the labor dispute is converted into a Preventive
Mediation Case.
39. Form Notice of Strike and Contens
Written notification filed by a duly registered labor union with the appropriate NCMB regional
branch informing the latter of its intention to go on strike because of alleged commission by
the employer of ULP act/s or because of deadlock in collective bargaining negotiations.
Copy furnished the employer or the union as the case may be.
Contents
g. The names and addresses of the employer and the union involved;
h. The nature of the industry to which the employer belongs;
i. The number of union members in the bargaining unit;
j. The number of workers in the bargaining unit;
k. Such other relevant data as may facilitate the settlement of the dispute;
l. The unresolved issues in the bargaining negotiations accompanied by the written
proposals of the union, the counter-proposals of the employer and proof of a request for
conference to settle the differences (collective bargaining deadlock);
m. Acts complained of and the efforts taken to resolve the dispute amicably (ULP);
(Sec.8, Rule XXII, Book V, Implementing Rules, as amended by D.O. 40-03)
40. Prohibited Activities
Art. 264, Labor Code
a.) On the part of both the Employer & Employee
1. Declaring a strike or lockout:
3. without first having bargained collectively, OR
4. without first filing the required notice, OR
5. without first obtaining & reporting the necessary strike or lockout vote.
2. Declaring a strike or lockout:

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3. after assumption of jurisdiction by the President or the Secretary, OR
4. after certification or submission of the dispute to compulsory or voluntary
arbitration, OR
5. during the pendency of cases involving the same grounds for the strike/lockout.
b.) On the part of the employer
1. Obstructing, impeding or interfering with by force, violence, coercion, threats
or intimidation any peaceful picketing by employees during any labor
controversy or in the exercise of their rights to self-organization or collective
bargaining, or aiding or abetting such obstruction or interference;
2. Employing any strike breaker;
c)

On the part of the employees


1. Stationary picket and the use of means like placing of objects to constitute permanent
blockade or to effectively close points of entry or exit in company premises;
2. Any act of violence, coercion or intimidation by any pickster;
3. Obstruction of the free ingress or egress from the employers premises for
lawful purposes;
4. Obstruction of public thoroughfares while engaged in picketing;

41. Assumption of Jurisdiction by the SOLE


Art. 263. STRIKES, PICKETING, AND LOCKOUTS
g) When, in his opinion, there exists a labor dispute causing or likely to cause a strike or
lockout in an industry indispensable to the national interest, the SOLE may assume jurisdiction
over the dispute and decide it OR certify the same to the NLRC for compulsory arbitration.
Such assumption of jurisdiction shall have the effect of automatically enjoining the intended or
impending strike/lockout. If one has already taken place at the time of assumption or
certification, all striking or locked out employees shall immediately return to work and the
employer shall immediately resume operations and readmit all workers under the same terms
and conditions prevailing before the strike or lockout. xxx
42. Improved Offer Balloting
Art. 265- In an effort to settle a strike, the DOLE shall conduct a referendum by secret
balloting on the improved offer of the employer (reduced offer of the union in case of a lockout)
on or before the 30th day of the strike. When at least a majority of the union members (or if
lockout: board of directors/trustees/partners holding the controlling interest in case of a
partnership vote to accept the reduced offer), vote to accept the improved offer, the striking (or
locked out) workers shall immediately return to work and the employer shall readmit them upon
the signing of the agreement.
- this is a device to shorten, if not avert, a strike. It opens a graceful exit to break a stalemate.
43. Consequences of Legal and Illegal Strike
a.) For Union Members:

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-Mere participation in a lawful strike does NOT constitute sufficient ground for
termination of employment. Even participation in a strike which turned out to be
illegal does not necessarily result in loss of job.
- But anyone who commits an illegal act (e.g., destruction of property) during a
strike may be dismissed from employment, regardless of whether the strike itself
is legal or not.
b.) For Union Officers:
- Any union officer who knowingly participates in an illegal strike or in the commission of
illegal acts during a strike, even if it is legal, may be declared to have lost his employment
status. This is because the responsibility of union officers is greater than that of the members.
44. Arrest and detention of union members
Art. 266. REQUIREMENT FOR ARREST AND DETENTION.- Except on grounds of national
security and public peace, or in case of commission of a crime, NO union members or union
organizers may be arrested or detained for union activities without previous consultation with
the SOLE.
45. Legal Remedies of Employer & Union in case of Strike/Lockout
- the parties may resort to preventive mediation or alternative modes of dispute resolution
including voluntary arbitration.
- The regional branch of the NCMB shall exert all efforts at mediation and conciliation to enable
the parties to settle amicably. The regional branch of the board may, upon agreement of the
parties, treat a notice as a preventive mediation case. It shall also encourage the parties to
submit the dispute to voluntary arbitration. (Sec. 9, Book V, Rule XXII, Implementing Rules, as
amended by D.O. 40-03)
- At any stage of a compulsory arbitration process, the parties may opt to submit their dispute to
voluntary arbitration. (Art. 263 [h], Art. 211[a], Art.262.)
* Preventive Mediation Case- refers to the potential labor disputes which are the subject of a
formal or informal request for conciliation and mediation assistance sought by either or both
parties or upon the initiative of the NCMB to avoid the occurrence of actual labor disputes.
* Labor dispute includes any controversy or matter concerning terms or conditions of
employment or the association or representation of persons in negotiating the fixing,
maintaining, changing or arranging the terms and conditions of employment, regardless of
whether or not the disputants stand in the proximate relationship of employer and employee.
(Art. 212 [l])
* Jurisdiction & procedure before the Labor Arbiter & the Secretary of Labor
- The SOLE, the NLRC (LA) or the voluntary arbitrator shall decide or resolve the dispute within
30 calendar days from the assumption of jurisdiction or the certification or submission of the
dispute, as the case may be. The decision of the President, the SOLE, the Commission or the
Voluntary Arbitrator shall be final and executory 10 calendar days after receipt thereof by the
parties. (Art. 263 [i])

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- the SOLEs jurisdiction over national interest labor disputes extends to all questions arising
from that dispute. However, excepted from this rule is the situation where in their CBA, the
parties categorically agreed that disputes between them shall be referred to the grievance
machinery which ends in voluntary arbitration. (University of San Agustin, Mar. 28, 2006)
46. Innocent By-Stander Rule
- while peaceful picketing is entitled to protection as an exercise of free speech, the courts
are empowered to confine or localize the sphere of communication or the demonstration to the
parties to the labor dispute. The court may insulate establishments or persons with no industrial
connection or having interest totally foreign to the context of the dispute. Thus, the right may be
regulated at the instance of third persons or innocent by-standers.
- according to Marquez, third parties cannot be disrupted by a labor dispute and they have a
right to file for injunction.
47. Anti-injunction ban
General Rule: No temporary or permanent injunction or restraining order in any case involving
or growing out of labor disputes shall be issued by any court or other entity.
- this is to protect the freedom of labor and management to bargain and settle disputes in the
workplace on their own accord.
Exceptions:
1.) Article 264 commission of the prohibited activities
2.) Article 218 pls. see Art. 218 (e)
3.) natl. interest cases
- strikes/lockouts involving industries indispensable to national interest; assumption of SOLE
or certification to the NLRC has the effect of automatically enjoining the strike/lockout.
14.

UNFAIR LABOR PRACTICE

REQUISITES
Elements
First : There is employer-employee relationship between the offender and the
offended
Second: The act done is expressly defined in the Code as an act of unfair labor practice
Conditions:
First : The injured party comes within the definition of employee as that term is defined by
the Code
Second: The act charged as ULP must fall under the prohibitions of Art. 248 (acts of the
employer) or 249 (acts of the union)

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ACTS OF ULP
Art. 248. Unfair Labor Practices of Employers
It shall be unlawful for an employer to commit any of the following unfair labor practices:

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(a)
To interfere with, restrain or coerce employees in the exercise of their right to selforganization;
(b)
To require as a condition of employment that a person or an employee shall not join a
labor organization or shall withdraw from one to which he belongs.
(c)
To contract our services or functions being performed by union members when such will
interfere with, restrain or coerce employees in the exercise of their right to self-organization;
(d)
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
supporters;
(e)
To discriminate in regard to wagers, hours of work, and other terms and conditions of
employment in order to encourage or discourage membership in any labor organization.
Nothing in this Code or in any other law shall stop the parties from requiring membership in a
recognized collective bargaining agent as a condition of employment, except those employees
who are already members of another union at the time of the signing of the collective bargaining
agreement. Employees of an appropriate collective bargaining unit who are not members of the
recognized collective bargaining agent may be assessed a reasonable fee equivalent to the
dues and other fees paid by members of the recognized collective bargaining agent, if such
non-union members accept the benefits under the collective agreement. Provided, That the
individual authorization required under Article 242, paragraph (o) of this Code shall not apply to
the nonmembers of the recognized collective bargaining agent;
(f)
To dismiss, discharge, or otherwise prejudice or discriminate against an employee for
having given or being about to give testimony under this Code;
(g)
To violate the duty to bargain collectively as prescribed by this Code;
(h)
To pay negotiation or attorneys fees to the union or its officers or agents as part of the
settlement of any issue in collective bargaining or any other dispute; or
(i)
To violate a collective bargaining agreement.
The provisions of the preceding paragraph notwithstanding, only the officers and agents of
corporations, associations or partnerships who have actually participated in, authorized or ratified
unfair labor practices shall be held criminally liable.
Art. 249 Unfair Labor Practices of Labor Organizations
It shall be unfair labor practice for a labor organization, its officers, agents or representatives:
(a)
To restrain or coerce employees in the exercise of their right to selforganization. However, a labor organization shall have the right to prescribe its own rules with
respect to the acquisition or retention of membership;
(b)
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 membership or continuation of membership is made available
to other members;
(c)
To violate the duty, or refuse to bargain collectively with the employer,
provided it is the representative of the employees;
(d)
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 the exaction, for services which are
not performed or not to be performed, including the demand for fee for union negotiations;
(e)
To ask for or accept negotiations or attorneys fees from employers as part of
the settlement of any issue in collective bargaining or any other dispute; or
(f)
To violate a collective bargaining agreement

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The provisions of the preceding paragraph notwithstanding, only the officers, members of
governing board, representatives or agents or members of labor associations or
organizations who have actually participated in, authorized or ratified unfair labor practices
shall be held criminally liable.

TERMS
Surface Bargaining - an employers proposal which could not be offered with any reasonable
expectation that they would be accepted by the union
Blue Sky Bargaining
- an unrealistic and unreasonable demands in negotiations by either or
both labor and management, where neither concedes anything and demand the impossible. It
actually is not collective bargaining at all.
Featherbedding
- name given to employee practices which create or spread employment by
unnecessarily maintaining or increasing the number of employees used, or the amount of time
consumed, to work on a particular job.
Yellow Dog Contract
- is a promise exacted from workers as a condition of employment that
they are not to belong to, or attempt to foster, a union during their period of employment.
Run-away Shop
- an industrial plant moved by its owners from one location to another to
escape union labor regulations or state laws. But the term is also used to describe a plant removed
to a new location in order to discriminate against employees at the old plant because of their union
activities.

PRESCRIPTIVE PERIOD
Art. 290. Offenses
Offenses prescribed under this Code and the rules and regulations issued pursuant thereto
shall prescribe in three (3) years.
All unfair labor practices arising from Book V shall be filed with the appropriate agency within
one (1) year from accrual of such unfair labor practice; otherwise, they shall forever be barred.

PENAL PROVISION
Art. 288 Penalties
Except as otherwise provided in this Code, or unless the acts complained of hinges on a
question of interpretation or implementation of ambiguous provisions of an existing collective
bargaining agreement, any violation of this provision of this Code declared to be unlawful or penal in
nature shall be punished with a fine of not less than One Thousand Pesos (1,000.00) nor more than
Ten Thousand Pesos (10,000.00), or imprisonment of not less than three months nor more than
three years, or both such fine and imprisonment at the discretion of the court.
In addition to such penalty, any alien found guilty shall be summarily deported upon
completion of service of sentence.
Any provision of law to the contrary notwithstanding any criminal offense punished in this
Code shall be under the concurrent jurisdiction of the Municipal or City Courts and the Courts of First
Instance.

JURISDICTION
Art. 217. Jurisdiction of Labor Arbiters and the Commission

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(a)
Except as otherwise provided under this Code the Labor Arbiters shall have
original and exclusive jurisdiction to hear and decide, within thirty (30) calendar days after the
submission of the case by the parties for decision without extension, even in the absence of
stenographic notes, the following cases involving all workers, whether agricultural or nonagricultural:
1.
Unfair labor practice cases;
2.
Termination disputes;
3.
If accompanied with a claim for reinstatement, those cases that workers may
file involving wages, rates of pay, hours of work and other terms and conditions or employment;
4.
Claims for actual, moral, exemplary and other forms of damages arising from
the employer-employee relations;
5.
Cases arising from any violation of Article 264 of this Code, including
questions involving the legality of strikes and lockouts;
6.
Except claims for Employees Compensation, Social Security, Medicare and
maternity benefits, all other claims, arising from employer-employee relations, including those of
persons in domestic or household service, involving an amount exceeding five thousand pesos
(5,000) regardless of whether accompanied with a claim for reinstatement.
(a)
The Commission shall have exclusive appellate jurisdiction over all cases
decided by the Labor Arbiters.
(b)
Cases arising from the interpretation of collective bargaining agreements and
those arising from the interpretation or enforcement of company personnel policies shall be
disposed of the Labor Arbiter by referring the same to the grievance machinery and voluntary
arbitration as may be provided in said agreements.

PROCEDURE

Art. 247. Concept of unfair labor practice and procedure for prosecution thereof
Unfair labor practices violate the constitutional right and workers and employees to selforganization, 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, disrupt industrial peace and hinder the promotion of healthy and stable labormanagement relations.
Consequently, unfair labor practices are not only violations of the civil rights of both labor and
management but are also criminal offenses against the State which shall be subject to prosecution
and punishment as herein provided.
Subject to the exercise by the President or by the Secretary of Labor Employment of the
powers vested in them by Articles 263 and 264 of this Code, the civil aspects of all cases involving
unfair labor practices, which may include claims for actual, moral, exemplary and other forms of
damages, attorneys fees and other affirmative relief, shall be under the jurisdiction of the Labor
Arbiters. The Labor Arbiters shall give utmost priority to the hearing and resolution of all cases
involving unfair labor practices. They shall resolve such cases within thirty (30) calendar days from
the time they are submitted for decision.
Recovery of civil liability in the administrative proceedings shall bar recovery under the Civil
Code.
No criminal prosecution under this Title may be instituted without a final judgment, finding that
an unfair labor practice was committed, having been first obtained in the preceding paragraph.
During the pendency of such administrative proceedings, the running of the period of prescription of
the criminal offense herein penalized shall be considered interrupted: Provided, however, That the
final judgment in the administrative proceedings shall not be binding in the criminal case nor be
considered as evidence of guilt but merely as proof of compliance of the requirements herein set
forth.

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1.

RELIEF AGAINST ULP


Cease and Desist Order
If the Court after investigation finds that the person named in the complaint has engaged or is
engaging in any unfair labor practice, the Court shall state its finding of fact and shall issue or
cause to be served upon such person an order requiring him to cease and desist from such
unfair labor practice.

2.

Affirmative Order
The Court does not only have the power to issue negative or prohibitive orders but also
affirmative or positive orders. The Court in addition to a cease and desist order may issue an
affirmative order to the respondent to reinstate the said employee with back pay from the date of
the discrimination.

3.

Order to Bargain; Mandated CBA


When an employee has failed or refused to bargain with the proper bargaining agent of his
employees, the Court may, in addition to the usual cease and desist orders, issue an affirmative
order to compel the respondent to bargain with the bargaining agent.

4.

Disestablishment
Where the employer had initiated, dominated or assisted in or interfered with the formation or
establishment of any labor organization or contributed financial or other support to it, the Court
may issue, in addition to a cease and desist order, an order directing the employer to withdraw all
recognition from the dominated labor union and to disestablish the same.

REVISED GUIDELINES OF THE NCMB

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