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Per Angusta Ad Augusta

------------ through difficulties to honors

enterprise. What factors determine the


existence of such relationship?

Book Five Labor Relations


Title I Policy and Definition

Ans.:
The existence of employer-employee
relationship is determined by the presence of
the following elements;
a. Selection and engagement of the
employee
b. Payment of wages
c. Power to dismiss; and
d. Power to control the employees
conduct.

Chapter I - Policy
Box 1
1.

What are the policy objectives of our labor


relations law?
Ans.: It is the policy of the State;
a. To promote and emphasize the primacy of
free collective bargaining and negotiations,
including voluntary arbitration, mediation
and conciliation, as modes of settling labor
or industrial disputes;
b. To promote free trade unionism as an
instrument for the enhancement of
democracy and the promotion of social
justice and development;
c. To foster the free and voluntary
organization of a strong and united labor
movement;
d. To promote the enlightenment of workers
concerning their rights ansd obligations as
union members and as employees;
e. To provide an adequate administrative
machinery for the expeditious settlement
of labor or industrial disputes;
f. To ensure a stable but dynamic and just
industrial peace; and
g. To ensure the participation of workers in
decision and policymaking processes
affecting their rights, duties and welfare.

2.

Employer-employee relationship must exist so


that labor relations may apply within an

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3.

What are considered labor disputes? What are


the available remedies?
Ans.:
Labor disputes are 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.
Remedies in Labor Disputes;
a. Grievance procedure.
b. Conciliation
c. Mediation
d. Enforcement or compliance order
e. Certification of bargaining
representatives.
f. Arbitration (either Voluntary or
Compulsory).
g. Assumption of jurisdiction

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h.
i.
j.
k.
l.
m.

Certification of NLRC
Injunction.
Judicial action
Appeal.
Review by Court.
Compromise agreement.

branches or sub-regional branches of the


Commission.
2.

What cases fall within the jurisdiction of the


Labor Arbiter?

Art. 217. Jurisdiction of the Labor Arbiters and the


Commission.
Title II National Labor Relations Commission
1. Except as otherwise provided under this Code, the
Labor Arbiters shall have original and exclusive
Chapter I Creation and Composition
jurisdiction to hear and decide, within thirty (30)
Box 2
calendar days after the submission of the case by
the parties for decision without extension, even in
1. What is the NLRC?
the absence of stenographic notes, the following
Answer: The NLRC is the National Labor
cases involving all workers, whether agricultural or
Relations Commission. It exercises exclusive
non-agricultural:
appellate jurisdiction over cases decided by the
Labor Arbiter.
1. Unfair labor practice cases;
2.

3.

Is the NLRC independent of the Department 2.


of
Labor and Employment?
Answer: Yes. It is attached to the DOLE for
3.
program and policy coordination only. The
Secretary of Labor merely exercises
administrative supervision over the NLRC. Such
supervision does not extend to the power to
review, reverse, revise or modify decisions 4.
of
the NLRC in the exercise of its judicial
functions.

Termination disputes;

5.
How is the NLRCs adjudicatory powers
distributed?
Answer: The NLRC shall exercise its
adjudicatory and all other powers, functions
6.
and duties through its divisions. The division
is a legal entity, not the persons who sit in it.
The law lodges the adjudicatory power on each
of the 8 divisions, not on the individual
commissioners nor on the whole commission.

Cases arising from any violation of Article 264 of


this Code, including questions involving the legality
of strikes and lockouts; and

Chapter II Powers and Duties, contd

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;
Claims for actual, moral, exemplary and other
forms of damages arising from the employeremployee relations;

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) regardless of
whether accompanied with a claim for
reinstatement.

Box 3
1.

What is RAB? Regional Arbitration Board


Regional Arbitration Branch" shall
mean any of the regional arbitration

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3.

What are Corporate Disputes? Who has


jurisdiction over them?

Corporate disputes are controversies arising out of


intra-corporate or partnership relations, between and

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among stockholders, members, or associates; between ion of a question, matter or controversy within
any or all of them and the corporation, partnership or
its jurisdiction;
associates of which they are stockholders, members or
b) proceed to hear and determine the dispu
associates respectively; and between such corporation,
tes in the manner laid down under paragraph (c)
partnership or association and the state insofar as it
Art. 218 (now Art 224, 2013 Codal)
concerns their individual franchise or right to exist as
(iv) CONTEMPT POWER
such entity.
The procedures and penalties thereof are pr
Jurisdiction Over Intra-Corporate Disputes
ovided under paragraph (d) Art. 218
Transferred from SEC to RTC
(now Art. 224 , 2013 Codal)
(v). POWER TO CONDUCT OCULAR INSPECTION
Where is the venue of the compulsory
Under Art 219 (now Art. 225), the chairman,
arbitration cases?.
All cases which Labor Arbiters have any commissioner, labor arbiter or their duly
authority to hear and decide may be filed in
authorized representatives may, at any time
the Regional Arbitration Branch having
during working hours:
jurisdiction over the workplace of the
a) conduct an ocular inspection on any est
complainant or petitioner.
ablishment, building, ship or vessel, place or
Chapter II Powers and Duties contd (Part 2. Powers)
premises, including any work, materiak, i
4.

mplement, machinery, appliance or any object

Box 4

therein;
1) What are the powers of the NLRC? (See Art 218 o
f LC, now Art 224, 2013 Codal)

b) ask any employee, laborer or any perso


n, as the case may be, for any information or

>> POWERS OF THE COMMISSION


(i) RULE-MAKING POWER
The Commission has the power to promulgate
rules and regulations:
a) governing the hearing and dispostition of
cases before it and regional branches;
b) pertaining to its internal functions
c) those that may be necessary to carry out t

data concerning any matter or question


relative to the object of the investigation.
Note: Author believes this power is adjunct to the adju
dicatory function and exercised only to assist or
expedite adjudication or a pending dispute. Not
meant to duplicate the visitorial-enforcement
authority under Art 128.
(vi) ADJUDICATORY POWER

he powers of this Code.


(ii) POWER TO ISSUE COMPULSORY PROCESSES
The Commission has the power to :
a) administer oaths;
b) summon parties;

Original: Each of the NLRC has original jurisdi


ctions over petition for injunction or temporary restraini
ng order under Art. 218 (e). It also had the original jurisd
iction to hear and decide "National Interest" cases certif
ied to it by the Sec.of Labor under Art. 263 (g).

c) issue subpoenas ad testificandum and duc


es tecum

Appellate: The NLRC has exclusive appellate


jurisdiction over all cases decided bu the lanor arbiters a

(iii) POWER TO INVESTIGATE AND HEAR DISPUTES


WITHIN ITS JURISDICTION
The Commission has the power to:
a) conduct investigations for the determinat

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nd the DOLE regional director or hearing of officers und


er Art. 219.
(vii) POWER TO ISSUE INJUNCTION OR TEMPOR
ARY RESTRAINING ORDER

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See Art 218 par. [e]

g to furnish adequate protection.

2) Injunction is frowned upon in labor disputes. Wh


at are the pre-conditions before an injuctive writ be is

Chapter II Powers and Duties contd (Part 3. Procedur


e)

sued? (See Art 218 par. [e]) (Art 224, 2013 Codal)
>> As a rule, restraining orders or injunctions do no
t issue ex parte and only after compliance with the follo

1.

wing requisites, to wit:


a.

a hearing held "after due and personal notice there


of has been served, in such a manner as the Commi
ssion shall direct, to all known persons against who
m relief is sought, and also to the Chief Executive a
nd other public officials of the province or city with
in which the unlawful acts have been threatened or
committed charged with the duty to protect compl
ainant's property;

b.

reception at the hearing of "testimony of witnesses


, with opportunity for cross-examination, in suppor
t of the allegations of a complaint made under oath
," as well as "testimony in opposition thereto, if off
ered x x";

c.

"A finding of fact by the Commission, to the effect:


(1) that the prohibited or unlawful acts have bee

n threatened and will be committed and will be continu


ed unless restrained, but no injunction or TRO shall be is
sued on account of any threat,

Box 5

prohibited or unla

wful act, except against the person or persons, associati


on or organization making the threat or committing the
prohibited or unlawful act or actually authorizing or ratif
ying the same after actual knowledge thereof;
(2) that substantial and irreparable injury to co
mplainant's property will follow;
(3) that as to each item of relief to be granted, g
reater injury will be inflicted upon the complainant by t
he denial of relief than will be inflicted upon defendants
by the granting of relief;
(4) that the complainant has no adequate reme
dy at law;
(5) that the public officers charged with the duty
to protect complainant's property are unable or unwillin

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Technical rules are not strictly followed in


proceedings before the NLRC and the Labor
Arbiter. How is this rule reconciled with the
requirement of procedural due process?
*Simplification of procedure, without regard to
technicalities of law or procedure and without
sacrificing the fundamental requisites of due
process.
In Ang Tibay vs CIR case, the court ruled that, it
is not narrowly constrained by the technical
rules of procedure. However this does not
mean that it can entirely ignore or disregard
the fundamental and essential requirements of
due process in trials and investigation of
administrative character. There are cardinal
primary rights which must be respected even in
proceedings of this character:
a. Right to hearing
b. Tribunal must consider the
evidence presented
c. Decision must be supported by
something (evidence)
d. Supporting evidence must be
substantial
e. Decision must be rendered on the
evidence presented or at least
contained in the record and
disclosed to the parties affected
f. The body or any of its judges must
act on its own independent
consideration of the law and
facts, and not simply accept the
views of the subordinate in
arriving at a decision: and
g. Decide in such a manner that
parties can know the various

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issues involved and the reason for


the decision.
2.

2.

How are compulsory arbitration cases heard


and decided?
The NLRC or Labor Arbiter to deicide case
on the basis of position papers and other
documents submitting without resorting to
technical rules of evidence as observed in
the regular court of justice. The evidence
presented before it must at least have a
modicum of admissibility for it to be given
some probative value. Not only must there
be some evidence to support a finding or
conclusion, but evidence must be
substantial. Substantial evidence is more
that a mere scintilla. It means such
relevant evidence as a reasonable mind
might accept as adequate to support a
conclusion.

ANS: The following are the perquisites for the


perfection of appeal:
a. It must be filed within the
reglementary period;
b. It must be verified by appellant
himself;
c. It must be in the form of a
memorandum of appeal in three
(3) legibly typewritten copies
which shall state the grounds
relied upon, the supporting
arguments, the relief prayed for&
the date the appellant received
the appealed decision or order.
The appeal memorandum should
be accompanied by a certificate
of non-forum shopping, proof of
service on the other party, proof
of payment of appeal fee, & cash
or surety bond.

Chapter III - Appeal


Box 6
1.

A labor arbiters decision is appealable to the


NLRC & up to the CA/SC. On what grounds?
When?
ANS: As provided by law, labor arbiters
decision is appealable to the NLRC within 10
calendar days from receipt of such decision
only on any of the following grounds:
a. If there is a prima facie evidence
of abuse of discretion on the part
of the Labor Arbiter;
b. If the decision was secured
through fraud or coercion,
including graft & corruption;
c. If made purely on questions of
law; and
d. If serious errors in the findings of
fact are raised which would cause
grave or irreparable damage or
injury to the appellant.

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At each level of appeal what are the


prerequisites? Is a motion for reconsideration
a prerequisite?

If the judgment includes


monetary award, appeal is
perfected by posting a bond
in a form money or security
bond.
A motion for reconsideration is not a
prerequisite in order that an appeal maybe
perfected because technical rules is not binding in
labor cases. Hence, if a motion for reconsideration
is filed, it considered an appeal, provided that all
the requisites for perfection of appeal are present

3.

What are the limits to NLRCs appellate


jurisdiction?
ANS: The NLRC shall, in case of perfected
appeals, limit itself to reviewing those issues
which are raised on appeal. Those which are
not raised shall be final & executory.

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4.

5.

The only time NLRC or any courts can assume


How is a final decision of the labor arbiter or jurisdiction over issues involved therein: a. in case of
the NLRC executed?
non-compliance thereof b. if there is prima facie
evidence that the settlement was obtained through
ANS: The decision or order of the NLRC or a fraud, misrepresentation or coercion.
Labor Arbiter that finally disposes of a case is
enforced by an order or writ of execution upon The assistance of the BLR or the regional office of the
motion of the winning party or upon the DOLE in the execution of a compromise settlement is a
initiative of the Labor Arbiter or the NLRC that basic requirement. Without it, there can be no valid
issued such decision. A copy of such decision or compromise settlement. Mere appearance before BLR
order should have been furnished to the or the regional office of the DOLE to file the already
parties and their counsels or authorized executed compromise settlement is not the assistance
required by the law.
representatives.
3. May such compromise be valid if the agreement sets
May a regional trial court issue an injunction
terms lower than the statutory standards?
against a NLRC decision?
ANS: As a general rule, Regional Trial Court has
no jurisdiction to issue temporary restraining
order in labor cases. However, when a thirdparty to the action, asserts a claim over the
property levied upon, the third-party may
vindicate his claim by an independent action
which may stop the execution. Thus, the
above-stated rule applies only when there is no
third-party claimant is involved.

Title III Bureau of Labor Relations


Box 7
1. What kind of cases fall within BLR's jurisdiction.?
Inter/intra union dispute
cba registration
Labor education
2. May labor standards violations be settled by
compromise? How this done?
It must be voluntarily agreed upon by the parties with
the assistance of the BLR or the regional office of DOLEfinal and binding upon the parties and can no longer be
repudiated.

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In order for compromise agreement to be valid, one of


its substantial requirements is that it must not be
contrary to law, morals or public policy. Thus, this
agreement must not set terms contrary to what the law
requires as minimum standards.
4. Where, when, and how is CBA registered?
Registration of Collective Bargaining Agreements
Where to file:
With the Regional Office which issued the certificate of
registration/certificate of creation of chartered local.
If the certificate of creation of the chartered local was
issued by the bureau, the agreement shall be filed with
the Regional Office which has jurisdiction over the place
where it principally operates.
Multi-employer collective bargaining agreements shall
be filed with the Bureau
When to file:
within 30 days from execution of the CBA.
Requirements for registration
The application for CBA registration shall be
accompanied by the original and 2 duplicate copies of
the following documents.

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a.
b.

1. CBA
2. A statement that the CBA was posted in at least 2
conspicuous places in the establishment concerned for
at least 5 days before its ratification.
3. Statement that the CBA was ratified by the majority
of the employees in the bargaining unit. The following
documents must be certified under oath by the
representative of the employer and the labor union. No
other document shall be required in the registration of
the CBA.

c.

Procedure

e.

d.

1. Submission of chores of CBA to the BLR or regional


office of dole within 30 days from execution,
accompanied by the Requirements for registration.
2. Action upon the application fir registration within 5
calendar days from receipt thereof.
3. The regional office shall furnish the blr with copy of
cba within 5 days from submission.
4. The blr regional office shall assess the employer for
every cba, registration fee of not less than 1,000 or any
amount deemed appropriate by secretary of labor.

a.

5. Issuance of certificate of registration.


Title IV Labor Organization
Chapter I Registration and Cancellation
Box 8
1.

What are the requirements for organizing and


registering a union?
Under the Labor Code of the Philippines, the
following are the requirements for organizing
and registering a union:
Art. 234. Requirements of registration. Any
applicant labor organization, association or
group of unions or workers 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.

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b.

Fifty pesos (P50.00) registration fee;


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;
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; (As amended by Executive
Order No. 111, December 24, 1986)
If the applicant union has been in existence for
one or more years, copies of its annual
financial reports; and
Four (4) copies of the constitution and by-laws
of the applicant union, minutes of its adoption
or ratification, and the list of the members who
participated in it. (As amended by Batas
Pambansa Bilang 130, August 21, 1981)
In addition,
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. Conditions for registration of
federations or national unions. No federation
or national union shall be registered to engage
in any organization activity in more than one
industry in any area or region, and no
federation or national union shall be registered
to engage in any organizational activity in more
than one industry all over the country.
The federation or national union which meets
the requirements and conditions herein
prescribed may organize and affiliate locals and
chapters without registering such locals or
chapters with the Bureau.
Locals or chapters shall have the same rights
and privileges as if they were registered in the

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Bureau, provided that such federation or


national union organizes such locals or
chapters within its assigned organizational field
of activity as may be prescribed by the
Secretary of Labor.
The Bureau shall see to it that federations and
national unions shall only organize locals and
chapters within a specific industry or union.]
(Repealed by Executive Order No. 111,
December 24, 1986)
2.

What is a collective bargaining unit? How


does it differ from a union?
As provided by the Implementing
Rules of the Labor Code, a bargaining unit
refers to a group of employees sharing mutual
interest 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.
One of the requirements to register an
independent union is that the applicant should
have a membership of at least 20 percent of
the employees in the bargaining unit where it
seeks to operate.
Azucena differentiated CBU and Union
in this manner:
CBU is different from and bigger than
a union. Union members come from the CBU
and there can be several rival unions within a
CBU. While officers lead and represent a union,
a union represents a CBU. But only one union
should represent the whole CBU in bargaining
with the employer. The representative is the
union; the group represented is the CBU. The
representative union, once determined, will
represent even the members of other unions
as long as they are part of the CBU. This is why
the representative union is called exclusive
bargaining representative (EBR).

3.

does not disaffiliate from its mother


federation or national union.
Implications:
a) The relationship between a local or
chapter and the labor federation or
natonal union is generally understood to
be that of agency, where the local is the
principal and the federation the agent.
b) Affiliation by a duly registered local union
with a national union or federation does
not make the local union lose its legal
personality. Despite the affiliation, the
local union remains the basic unit free to
serve the common interest of all its
members;

What is union affiliation and what are its


implications? May an affiliate disaffiliate?
Union affiliation is defined in two ways:
a) When an independently registered union
enters into an agreement of affiliation with
a federation or a national union;
b) A chartered local which applies for and is
granted an independent registration but

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The right of a local union to disaffiliate from its


mother union is well settled. It has been held
that a local union, being a separate and
voluntary association, is free to serve the
interest of all its members including the
freedom to disaffiliate when circumstances
warrant. This right is consistent with the
constitutional guarantee of freedom of
association. To disaffiliate is a right, but to
observe the terms of affiliation is an
obligation.
SUBSTITUTIONARY
DOCTRINE-employees
cannot revoke the validly executed collective
bargaining contract with their employer by the
simple expedient of changing their bargaining
agent. The CBA continues to bind the members
of the new or disaffiliated and independent
union up to the CBAs expiration date.
4.

How do unions merge or consolidate?


Merger of labor organizations is the process
where a labor organization absorbs another
resulting in the cessation of the absorbed labor
organizations existence and the continued
existence of the absorbing labor organization;
that is if Union A absorbs Union B, Union A
remains and Union B disappears, or it can be B
absorbing A. Another name for merger is
absorption.
Consolidation of unions refers to the creation
or formation of a new union arising from the
unification of two or more unions; that is, if
union A and union B consolidate themselves,

Page 8

both of them disappear and Union C is born.


Another
name
for
consolidation
is
amalgamation.

c.

officers, minutes of the election of officers,


the list of voters;
Voluntary dissolution by the members.

How?
D.O. No. 40-03(Rule XIV, Section 2) states: Any
A. Notice of merger or consolidation of
party-in-interest may commence a petition for
independent labor unions, chartered locals
cancellation of a unions registration, except in
and workers association shall be filed with
actions involving violations of Article 241, which can
and recorded by the Regional Office that
only be commenced by members of the labor
issued
the
Certificate
of
organization concerned. The employer is a partyRegistration/Creation. Notice of merger or
in-interest, and jurisprudence reveals cases of
consolidation of federations or national
cancellation of union registration based on
unions shall be filed with and recorded by
petitions filed by the employer.
the Bureau.
B. The notice shall be accompanied by the Chapter II Rights and Conditions of Membership
following documents:
a) Minutes of Merger/consolidation Box 9
meeting with the list of members who
1. What are the rights of union members?
approve the same; and
a. Political right members right to vote and
b) Amended Constitution and by-laws
be voted for, subject to lawful provisions
and minutes of its ratification, unless
on qualifications and disqualifications.
ratification
transpired
in
the
b. Deliberative and decision making right
Convention.
right to participate in deliberations on
C. The Certificate of registration issued to
major policy questions and decide them by
merged labor organizations shall bear the
secret ballot.
registration number of one of the merging
c. Right over money matters rights against
labor organizations as agreed upon by the
excessive fees; unauthorized collections of
parties.
contribution or disbursement; the right to
require adequate records of income and
expenses and access to financial records;
5. On what grounds and upon whose petition
the
right
to
vote
on
officers
may a unions registration be cancelled?
compensations,
on
proposed
special
The Labor Code provides the following:
assessments
and
be
deducted
a
special
Art. 238. Cancellation of registration; appeal.
assessment
only
with
the
members
The certificate of registration of any labor
written authorizations.
organization, whether national or local, shall be
d. Right to information right to be informed
cancelled by the Bureau if it has reason to
about the orgs constitution and by-laws
believe, after due hearing, that the said labor
and CBA and about labor laws.
organization no longer meets one or more of
2. When, how and by whom are union officers
the requirements herein prescribed.
elected?
Art. 239. Grounds for cancellation of union
They are elected directly by the
registration. The following shall constitute
members in secret ballot voting. The
grounds for cancellation of union registration:
elections take place at intervals of five
a. Misrepresentation, false statement or
years which is their term of office.
fraud in connection with the adoption or
How it is done are matters left by law
ratification of the constitution and by-laws
to the unions constitution and byor amendments thereto, the minutes of
laws or to agreements among the
ratification and the list of members who
members. In the absence thereof,
took part in the ratification;
book V applies.
b. Misrepresentation, false statements or
How may they be impeached or removed?
fraud in connection with the election of

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They may be impeached by the ff


procedure:
-Initiated by petition signed by at least 30%of
all bona fide members of union;
- General membership meeting shall be
convened by the board chairman;
- Union officer against whom impeachment
charges have been filed, before impeachment
vote be taken, shall be given ample opportunity
to defend himself;
- Majority of all the members of union be
required to impeach or recall union officers.
They may be expelled if they violate
the rights and conditions of the
membership.
3. May a union member seek cancellations of his
unions registration?
Yes, provided the ff requisites must
concur:
Member desire to dissolve or
cancel the registration should have been
voted upon through secret balloting;
The balloting should take place in a
meeting duly called for the purpose of
deciding WON to dissolve the union;
The vote to dissolve should represents
2\3 affirmative vote of the general
memberships;
- Members resolution should be followed
by an application for cancellation passed
and submitted by the unions governing
board, which must be attested to by the
president.
4. What is check-off? When may it properly be
done?
Check-off is a method of deducting
from an employees pay at prescribed
period, the amounts due the union for
fees,
fines,
or
assessments.
Deductions for union service fees are
authorized by law and do not require
individual checkoff authorizations.

1.

2.

3.

4.

5.
6.

7.

2.

Chapter III Rights of Legitimate Labor Organizations

May a union, as representative, settle by


compromise its members money claims?
No. The exception is when there is a
specific individual consent of each laborer
concerned.

Title V - Coverage

Box 10
1.

To act as representatives of its


members for the purpose of
collective bargaining.
To be certified as the exclusive
representative
of
all
the
employees in an appropriate
collective bargaining unit for
purposes of collective bargaining.
To be furnished by employer,
upon written request, with its
annual
audited
financial
statements.
To own property, real or personal,
for the use and benefit of the
labor organization and its
members.
To sue and be sued in its
registered name.
To undertake all other activities
designed
to
benefit
the
organization and its members,
including cooperative, housing
welfare and other projects not
contrary to law.
Its income, properties, grants,
endowments, gifts, donations,
and contributions, used for their
lawful purposes, shall be free
from
taxes,
duties
and
assessments, except when this
provision is expressly repealed by
a special law.

What are the rights of a legitimate labor


organization?
The following are the rights of a
legitimate labor organization: (Art. 242)

Bukidnon State University College of Law


Batch 2014

Box 11
1.

In the private and public sectors, who are


the persons allowed and not allowed to
form and join labor organization?

Page 10

In private sectors all person employed


in commercial, industrial and agricultural
enterprise and in religions, charitable,
medical/educational institutions whether
for profit or not are allowed to form or join
labor organization. Ambulant, intermittent
and itinerant workers, self-employed
people, rural workers and those without
any definite employees may form/join
labor organization.

Terms and condition of employment


in govt. including any political subdivision
or instrumentality thereof and GOCC with
original charters are governed by law, the
employees therein shall not strike for
purpose of securing changes thereof.
4.

In the private sector how does a manager


differ from a supervisor?
In the private sector, a manager
differs from a supervisor in the sense that
a manager makes policy decisions or
people decisions or both, while a
supervisor recommends those decisions.
One is a decision maker while the other
recommends.

5.

Supervisor and rank and file employees


cannot join the same union. What
happens if they do?
As a rule the inclusion as union
members of employees outside the
bargaining unit shall not be a ground for
the cancellation of registration of the
union. Said employees are automatically
deemed removed from the list of
membership of said union.

6.

Who
are
considered
confidential
employees? May confidential employee
join unions?

Those who are not allowed are


employees of such cooperative who is a
member and co-owner; Managerial
employees.
In public sectors, employees of Govt.
Corporation established under the
corporation code shall have the right to
organize with their respective employers.
All other employees in civil service shall
have the right to form association for
purpose not contrary to law.
Exempted employees are those
members of the AFP, including police
officers, policemen, fireman and jai guard;
High level employee.
2.

3.

What law governs labor realations in the


public secto?
The law that governs in the public
sector is the Civil Service Law.
May government employees hold protest
actions? May they go on a strike legally?
Yes, the resolution of complaint and
cases involving govt. employees is not
ordinarily
left
to
collective
bargaining/other related activities but to
civil service law and labor law whenever
applicable.

Bukidnon State University College of Law


Batch 2014

Confidential employees assist and act in a


confidential capacity to, or have access to
confidential matters of, persons who
exercise managerial functions in the field
of labor relations.
Confidential employees cannot form, join, or
assist rank-and-file unions however When the employee
does not access to confidential employees,
there is no legal prohibition against confidential
employee
from forming, assisting or joining a
union.
Title VI Unfair Labor Practices

Page 11

Answer: Art. 248 of the Labor Code


enumerated unfair labor practices of
employers.
a. To interfere with, restrain or coerce
employees in the exercise of their right to
self-organization.
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 out 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 wages, hours
of work, and other terms and conditions of
employment in order to encourage or
discourage membership in any labor
organization.
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;
i. To violate a collective bargaining
agreement.

Chapter I - Concept
Box 12
1.

Unfair Labor practice is an act of abridgment


which Article 246 prohibits. Is it ULP to stop
protest action by ununionized employees?
Ans.:
Because self-organization is a prerequisite
the lifebloodof industrial democracy, the right
to self-organize has been enshrined in the
Constitution, and any act intended to weaken or
defeat the right is regarded by law as an offense.
ULP, therefore has a limited, technical meaning
because it is a labor relations concept with a
statutory definition. It refers only to acts opposed
to workers right to organize. Without the element,
the act, no matter how unfair, is not unfair labor
practice as legally defined.

2.

Under article 247, ULP is both civil and criminal


offense. Why?
Ans.:
The victim of the offense is not just the
workers as a body and the well-meaning
employers who value industrial peace, but the
State as well. Thus, the attack to constitutional
right is considered a crime which therefore carries
both civil and criminal liabilities.

3.

What are the elements of ULP as an offense?


Ans.:
First, there is employer-employee relationship
between the offender and the offended; and
Second, the act done is expressly defined in the
Code as an act of unfair labor practice.

Chapter II Unfair Labor Practices of Employers


2.

Box 13
1.

What acts are considered unfair labor practice


by an employer?

Bukidnon State University College of Law


Batch 2014

What is the discrimination that may constitute


ULP?
Answer: To constitute an unfair labor practice,
the discrimination committed by the employer
must be in regard to the hire or tenure of
employment or any term or condition of

Page 12

employment to encourage or discourage


membership in any labor organization.
3.

Is it ULP for an employer to contract out jobs


being done by union members?
Answer: No. It is not ULP for an employer to
contract out jobs being done by union
members UNLESS such act will interfere with,
restrain, or coerce employees in the exercise of
their right to self-organization. Hence,
contracting out by itself is not ULP. It is the illintention that makes it so.

1.

What acts are considered ULP by a Labor


organization?

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 self-organization.
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
which membership or continuation of membership
is made available to other members;

4.

Is it ULP for an employer to favour a particular


union?
Answer: Yes, if the act of favouring a particular
union amounts to domination of a labor union
such as in the following:
initiation of company union idea; giving
financial support to the union; employer
To violate the duty, or refuse to bargain
encouragement
and
assistance;
and c. )
collectively
with the employer, provided it is the
supervisory assistance.
representative of the employees;

5.

Is it lawful to compel an employee to join a


union?
Answer: No. There is a form of encouragement
of union membership which is not considered
ULP. This is where the management and union
enters into a collective bargaining agreement
containing a union security clause. A union
security
clause
essentially
requires
membership in the union so that an employee
may retain his job and the unions existence is
assured. It is compulsory union membership
whose objective is to assure continued
existence of the union. In a sense, there is
discrimination when certain employees are
obliged to join a particular union. But it is
discrimination favouring unionism; it is a valid
kind of discrimination.

Chapter III Unfair Labor Practices of Labor


Organizations
Box 14

Bukidnon State University College of Law


Batch 2014

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 an
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 negotiation 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
2.

May a union charge with ULP another union in


the same enterprise?
No, Unfair Labor Practices can only be
invoked by an employee against an employer
and and by a union member against the labor
union when such employer or labor union

Page 13

3.

4.

violates the Constitutional right of workers or


Employees to self-organization.
May a union member charge with ULP his own
union?
Yes. Labor Union can be charged with
ULP by a union member where in a case such
Union arbitrarily exclude qualified applicants
for membership, and a closed-shop provision
would not justify the employer in discharging,
or a union in insisting upon the discharge of, an
employee whom the union thus refuses to
admit to membership, without any reasonable
ground therefor.
What is featherbedding? Is it featherbedding
to object to the abolition of certain jobs or
positions in the company?

Article 249(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 an
exaction, for services which are not performed or not to
be performed, including the demand for fee for union
negotiations; refers to featherbedding, a term 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.

ajority representation of the employees' representative


in accordance with any of the means of selection or desi
gnation provided for by the Labor Code; (2) proof of maj
ority representation; (3) a demand to bargain under Art
250, par.[a] of the New Labor Code. If the three jurisdict
ional preconditions are present, the collective bargainin
g should begin within 12 months following the determin
ation and certification of the employees' exclusive barga
ining representative.
Yes. Art 251 provides, "In the absence of an agree
ment or other voluntary arrangement providing for a m
ore expeditious manner of collective bargaining, it shall
be the duty of the employer and the representatives of
the employees to bargain collectively in accordance wit
h the provisions of this Code."
2) The prevailing practice is single enterprise bargai
ning. Is multi-employer bargaining allowed?
Yes. Multi-employer bargaining unit is particularly
advantageous to both sides in industries composed of m
any small, financially weak employers.
3) What are the elements of the duty to bargain, vi
olation of which may constitute ULP?

No. Most of these practices stem from a desire on


the part of employees for job security in the face of
technological improvements or in the face of employer
subcontracting. However, most courts at common law
found these practices to be economically wasteful and
without any legitimate employee justification.

(I tweaked the answer a little. ma_an)


The elements of the duty to bargain depends o
n whether there is yet no collective bargaining agreeme
nt and where a CBA already exists. When there is yet no
CBA, the duty to bargain means in essence the obligatio

n of the employer and the employees majority union to


Title VII Collective Bargaining and Administration of meet and convence. The purposes of the meeting and c
Agreement (Part I. Collective Bargaining Concept and
onvening are: (a) to NEGOTIATE an agreement on the su
Procedure)
bjects of: (1) wages (2) hours of work (3) all other terms
Box 15
and conditions employment including proposals for adju
sting grievances or questions arising under such agreem
1) How is collective bargaining done? May the parti
es devise their own procedure? (See Art.250)

ent; and (b) to EXECUTE a contract incorporating such a


greement if requested by either party.

The mechanics of collective bargaining are set in m

The kind of compliance required is prompt, exp

otion only when the following jurisdictional preconditio

editious and in good faith. The limitations or reservation

ns are present, namely: (1) possession of the status of m s are that it does not compel any party to agree to a pro

Bukidnon State University College of Law


Batch 2014

Page 14

posal or to make a concession. Thus, no violation and no o required.


ULP is committed when a party in good faith turns down
a proposal.

6) When does a CBA take effect? Up to when is it ef

Where a CBA already exists, the duty to bargai fective? May its life be extended by non-renewal
n means all of the above and, additionally, the obligatio

or by mutual agreement?

n not to terminate or modify the agreement. During the

It has been held that a CBA was effective on ratific

60 day period and until a new agreement is reached, th ation by union members.
e CBA remains in full force and effect; the parties are du

RA No. 6715 has introduced through Art. 253-A a

ty-bound to keep the status quo. The law therefore prov significant change in setting the durations or terms of a
ides for automatic renewal or extension of the CBA. This CBA at five years for the "representation aspect" and no
60 day period under Art. 253 refers to submission of pro t more than three years for "all other provisions".
posal to renegotiate the nonrepresentational provisions

Art. 253 provides, It shall be the duty of both parti

of the CBA. It does not always coincide with the 60-day es to keep the status quo and to continue in full force a
period mentioned in Art. 253-A and 256 pertaining to f nd effect the term and conditions of the existing agreem
reedom period to resolve representation contest betw ent during the 60-day period and/or until a new agreem
een unions.
Forms of ULP by violating the duty to bargain men
tioned above:
a) failure or refusal to meet and convene;
b) evading the mandatory subjects of bargainin
g;

ent is reached by the parties.

Title VII Collective Bargaining and


Administration of Agreement (contd) (Part 2.
Employee Participation and Representation
Box 16
1.

c) bad faith in bargaining including failure or ref


usak to execute the collective agreement, if requested;
d) gross violation of the CBA
2.
4) What are the compulsory and optional subjects o
f bargaining?
The mandatory subjects of collective bargaining ar
e wages, hours of work and all other terms and conditio
ns of employment. Those matters outside the terms and
conditions of employment are not within the employer'
s duty to bargain, such other matters he is free to bargai
n or not to bargain.
5) What are the requirements of valid ratification of
a CBA?
The agreement negotiated by the employees' barg

3.

What are the methods of selecting the union


that will bargain with the employer?
a.) Voluntary recognition
b.) Certification Election
c.) Consent election
What is certification election (C.E.)? Who can
petition for a C. E.?
*Certification election is 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.
*may be filed by the (1)registered union or (2)
by an employer. (3) Any legitimate labor
organization including a(4) national union or
federation that has issued a charter certificate
to its local/chapter.
On what grounds may a petition for C. E. be
denied?

aining agent should be ratified or approved by the majo


rity of all the workers in the bargaining unit. The posting
of the CBA in two conspicuous places for five days is als

Bukidnon State University College of Law


Batch 2014

*Med-arbiter may disapprove or deny the


petition to hold a C.E. on the following ground:

Page 15

a.) Non- appearance

1.

b.) Illegitimacy-Unregistered Union


c.) Illegitimacy- no charter

A CBA is said to be the law between the


parties. What are the consequences of its
violation?
ANS: If the violation of the CBA is not gross, it is
considered as grievance, but if the violation of
the CBA is gross, it considered as unfair labor
practice.

d.) Absence of employment relationship


e.) election bar- the 12 month bar
f.) election bar- negotiation or deadlock

In the event of any violation in the


CBA, the aggrieved party has the right to go to
court for redress.

g.) election bar- existing CBA


h.) election bar-lack of support
4.

5.

Who votes in C. E.? Who wins?


*all employees who are members of the
appropriate bargaining unit sought to be
represented by the petitioner at the time of
the issuance of the order granting the conduct
off a certification election shall be eligible to
vote.
* results of the election and certifying the
union which obtained a majority of the valid
votes cast. Where majority of the valid votes
cast results in no-union obtaining the
majority, the med-arbiter shall declare such
fact in the order.
Is the employer a party to a C. E.?

2.

ANS: CBA is said to be in personam, thus, it


implies that labor contracts is only binding
between the parties and it does not create any
real right which should be respected by third
parties.
However, as an exception to the said
rule, the parties may be held liable to the
employees if the transaction between the
parties is colored or clothed with bad faith.
3.

*no, employers are mere bystanders in the


CE proceedings.
6.

It is intended to promote friendly


dialogue between labor and management as a
means of maintaining industrial peace and
therefore considered to be an extension of the
parties to bargain as required by law.

Title VII A Grievance Machinery and Voluntary


Arbitration

Bukidnon State University College of Law


Batch 2014

What is grievance machinery & why is it


required provision in a CBA?
ANS: Refers to a mechanism for the adjustment
of controversies or disputes arising from the
interpretation or implementation of the CBA &
the interpretation or enforcement of the
company personnel policies.

What is meant by duty of fair


representation?
*this duty, enjoined explicitly in American
jurisprudence and implicitly in Philippine law,
obligates the majority union to serve the
interest of all members of the whole bargaining
unit without hostility or discrimination.

Box 17

A CBA is in personam. What are the


implications? The exceptions?

4.

In what cases is resort to the grievance


machinery a prerequisite or jurisdictional, and
when is it optional?

Page 16

implementing rules & regulations, the CBA, &


ANS: Resort first to grievance machinery is
other agreement of the parties, the directives
jurisdictional when it is expressly & validly
of the arbitrator, & the procedural guidelines in
entered into the CBA. Hence, all grievances
conduct of voluntary arbitration proceedings.
arising from the implementation or
interpretation of the CBA and/or interpretation
& enforcement of company personnel policies Title VIII Strikes and Lockouts and Foreign
are compulsory subject to the grievance Involvement in Trade Union Activities
machinery.
Chapter I Strikes and Lockouts
However, resort to the said grievance Part 1. Regulations and Limits of Strike and Lockout
machinery may be optional when it is proven
to be ineffective in the past, or when the Box 18
parties inadvertently failed to include a
1. In general, what is meant by concerted activity?
grievance machinery provision in the CBA.
5.

It is an activity undertaken by two or more


Who are voluntary arbitrators? In what sense employees, by one on behalf of others.
are they voluntary? Are their decisions
2. Factors to be examined
appealable?
ANS: Voluntary Arbitrators consist of persons
mostly involved as employees or officials in the
government or in education, civic, and religious
institutions, trade union organizations &
private enterprises.

Factors affecting legality of strike:


1. Statutory prohibition
2. Procedural requirements of the law
3. Purpose must be ULP and economic

They are considered to be voluntary in


the sense that they are chosen by the parties
themselves, thus the preferred method of
selection of voluntary arbitrators is by mutual
agreement of the parties.
As a general rule, decisions of
Voluntary Arbitrator must be accorded with
finality, however, the Supreme Court may take
cognizance a petition for certiorari by the
aggrieved party under Rule 65 of the Rules of
Court which allege a grave abuse of discretion
or an act without or excess of jurisdiction on
the part of the Voluntary Arbitrator.
6.

4. Lawful means and methods


5. Injunction

3. Government Employee may strike?


No. By reason of peculiar character of the public service,
it must necessarily regard the right to strike given to
unions in the private industry as not applying to public
employees.

Moreover, the csc declared that the right to self


organization accorded to government employees shall
not carry with it the right to engage in any form of
What rules govern voluntary arbitration?
prohibited concerted activity or mass action causing or
intending to cause work stoppage or service disruption,
ANS: The rules that governs voluntary albeit of temporary nature.
arbitration is based on the labor code and its

Bukidnon State University College of Law


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Page 17

4. Goodfaith strike doctrine - A strike may be


considered legal when the union believed that the
respondent company committed unfair labor acts and
the circumstances warranted such belief in good faith
although subsequently such allegation of unfair labor
practices are found out as not true. (Peoples Industrial
and Commercial Employees and Workers Organization
(FFW) v. Peoples Industrial and Commercial Corp. GR
No. 37687 15 March 1982
5. Striker and employer may not do on occasion of
strike.
Prohibited activities [Art.264]
(a) No labor organization or employer shall declare a
strike or lockout without first having bargained
collectively in accordance with Title VII of this Book or
without first having filed the notice required in the
preceding Article or without the necessary strike or
lockout vote first having been obtained and reported to
the Ministry.
No strike or lockout shall be declared after assumption
of jurisdiction by the President or the Minister or after
certification or submission of the dispute to compulsory
or voluntary arbitration or during the pendency of cases
involving the same grounds for the strike or lockout.
(b) No person shall obstruct, impede, or interfere with,
by force, violence, coercion, threats or intimidation, any
peaceful picketing by employees during any labor
controversy or in the exercise of the right to
selforganization or collective bargaining, or shall aid or
abet such obstruction or interference.

lines unless actual violence or other criminal acts occur


therein:
(e) No person engaged in picketing shall commit any
act of violence, coercion or intimidation or obstruct the
free ingress to or egress from the employers premises
for lawful purposes, or obstruct public thoroughfares.

May employer hire workers in place of strikers?


An employer is entitled to carry out his business. But in
unfair labor practice strike, such replacements may not
be permanently employed. In case of defiance of return
to work order, or certification or assumption order, a
hearing is not required for the employer to validly hire
replacement for workers who committed the defiance.
6. What is National interest dispute? In what ways it is
subjected to police power?
Labor dispute involving national interest. When there
exist a labor dispute causing or likely to cause a strike or
lock out in an industry indispensable to the national
interest. The power of (a) assumption of jurisdiction and
decide it or (b) certify the same to the NLRC for
Compulsory arbitration by the secretary of labor is in
nature a police power measure.
7.No Strike-No Lockout Clause valid?

A "no strike, no lock-out" provision in the CBA is a valid


stipulation although the clause may be invoked by an
employer only when the strike is economic in nature or
one which is conducted to force wage or other
concessions from the employer that are not mandated
(c) No employer shall use or employ any strike-breaker,
to be granted by the law itself. It would be inapplicable
nor shall any person be employed as a strike-breaker.
to prevent a strike which is grounded on unfair labor
(d) No public official or employee, including officers and practice. [Panay Electric Co. v. NLRC, 1995; Malayang
Samahan ng mga Manggagawa sa Greenfield v. Ramos ,
personnel of the New Armed Forces of the Philippines
or the Integrated National Police, or armed person, shall 2000BLR
bring in, introduce or escort in any manner, any
Chapter I Strikes and Lockouts (Contd)
individual who seeks to replace strikers in entering or
leaving the premises of a strike area, or work in place of Part 2. Picketing and other concerted action
the strikers. The police force shall keep out of the picket
Box 19

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Page 18

1.

What are the legal limits to a picket? May


picketing be conducted without a strike?

Picketing involves the presence of striking workers


of their union brothers who pace back and forth before
the place of business of an employer considered unfair
to organized labor, in the hope of being able to
persuade peacefully other workers not to work in the
establishment, and customers not to do business there.
Picketing as a concerted activity is subject to the
same limitations as strike, particularly as to lawful
purpose and lawful means. Like the freedom of
expression in general, it has limits. Thus, to the extent
that it is an instrument of coercion rather than a
persuasion, it cannot rightfully be entitled to the
protection associated with free speech.
Picketing almost always accompanies a strike. But
there may be picketing without a strike because
employees may picket without engaging in work
stoppage. Although picketing is a form of concerted
action, not every concerted action is a strike.
2.

create an impression that a labor dispute with which


they have no connection or interest exists between
them and the picketing union or constitute an invasion
of their rights.
Thus, an innocent bystander, who seeks to enjoin a
labor strike, must satisfy the court it is
entirely different from, without any connection
whatsoever to, either party to the dispute and,
therefore, its interests are totally foreign to the context
thereof.
A picketing labor union has no right to prevent innocent
bystander from getting in and out of its premises,
otherwise it will be held liable for damages for its act
against innocent bystanders.
3.

What is the recourse of an employer when


employees conduct a group action without
work stoppage? (No answer found in the book,
I just infer this based on the annotations)
The following are concerted actions
without work stoppage:
a) Collective letter;(Republic Savings Bank vs.
CIR)
b) Publicity;
c) Placards and Banners;
d) Wearing of Armbands;(Bascon et al vs. CA
et al)
e) Speeches, Music, and Broadcasts
f) Employees Demonstration to Protest
Police Abuses (Phil Blooming Mills
Employees vs.PBM Inc)
There was no finding by the Court that the
following group action constitutes illegal act. In
fact, per se, they are within the mantle of
constitutional protection under freedom of
speech. Being so, an employer who terminates
employment constitutes illegal dismissal not
being for any of the just or authorized causes.
Therefore, as long as the group action
constitutes a guarantee of the freedom of
speech, the employer has no recourse but to
respect such exercise of right.

4.

When is a group action a strike even if there is


no work stoppage? Is boycott a strike?

What is the recourse of a neutral party being


affected by a picket?

In Philippine Association of Free Labor Unions (PAFLU)


v.
Cloribel,
the
Court,
through
Justice
J.B.L. Reyes, stated the innocent bystander rule as
follows:
The right to picket as a means of communicating the
facts
of
a
labor
dispute
is
a phase of the freedom of speech guaranteed by the
constitution.
If
peacefully
carried out, it cannot be curtailed even in the absence
of
employer-employee
relationship.
The right is, however, not an absolute one. While
peaceful picketing is entitled to protection as
an exercise of free speech, we believe the courts are not
without power to confine or localize the sphere of
communication or the demonstration to the parties to
the labor dispute, including those with related interest,
and to 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 parties or innocent bystanders if
it appears that the inevitable result of its exercise is to

Bukidnon State University College of Law


Batch 2014

The word strike in its broad


significance has reference to a dispute

Page 19

between an employer and his workers, in the


an illegal strike. There must be proof
course of which there is a concerned
that he committed illegal acts during
suspension of employment. As a form of labor
strike.
activity, it is rarely carried on without the
A union officer, on the other hand,
concomitants of picketing or boycotting. Thus,
may be terminated from work when
a group action is considered a strike even if
he knowingly participates in an illegal
there is no work stoppage in instances of picket
strike, or when he commits an illegal
and boycott.
act during a strike.
The term boycott as applied to
4. What liabilities may employees incur by
labor unions, is generally understood to ba a
holding a strike?
combination to harm one person by coercing
They may be held liable for damages
others to harm him-that is, a combination of
where they attempt to attain their
many to cause a loss to one person by causing
legitimate objectives by unlawful
others, against their will, to withdraw from him
means or where they attempt to
their beneficial business intercourse through
attain unlawful objectives; or
threats that unless others do so, the many will
When they personally authorized or
cause similar loss to him or them.
participated in the particular acts.
Whether a boycott is a strike or not
depends upon the means or methods to carry
out the boycott. The striking employees not Title I Termination of Employment
only have a right to acquaint the public with
the fact of the existence of a strike and the Part 2. Kinds of Employment
cause thereof, but may appeal for sympathetic
aid by a request to withhold patronage from Box 21
the employer.
1. What are the kinds of employment and which
Chapter I
ones are entitled to the right to security of
tenure?
Strikes and Lockouts contd
The kinds of employment are:
Part 3. Consequences of Concerted Actions
1. Regular employment
2. Casual employment
Box 20
3. Project employment
1. Who are the strikers that may return to their
4. Seasonal employment
jobs when the strike is over?
5. Probationary employment
Those who were discriminatorily
6. Fixed-term employment
dismissed for union activities; and
(but marag pwd ra muingon
Those who voluntarily went on strike
og regular and temporary
even if it is in protest of an ULP.
employment)
2. Either in economic or ULP strike, the strikers
are not to be paid for the period they were on
strike. What are the exceptions?
Involuntary strikers illegally locked
out; or
Voluntary strikers in ULP strike who
offered
to
return
to
work
unconditionally.
3. On what grounds may the employment of
strikers be terminated? By whom? When?
Through what process?
An ordinary striking worker cannot be
terminated for mere participation in

Bukidnon State University College of Law


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Page 20

The right to security of tenure shall be


enjoyed by employees in all kinds of
employment. (According to Consti and court
rulings. Art 279, which recognizes security of
tenure only to regular employees, is defective.)
(But if dli regular employee, ang security of
tenure kay for a limited period lng pud. Hehe!)
2.

What is project employment? When does a


project employee becomes regular?
A project employment is one
whereby 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.
A project employee becomes a
regular employee when he is repeatedly
rehired and his services continually needed
for a long span of time.

3.

What are the kinds of fixed-period


employment
and
under
what
circumstances are they considered valid?
Article 280[13] of the Labor Code
identifies only four (4) kinds of employees.
These are (1) regular employees or
employees who have been engaged to
perform activities which are usually
necessary or desirable in the usual business
or trade of the employer; (2) project
employees
or
employees
whose
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; (3) seasonal employees or where
the work or service to be performed by the
employee is seasonal in nature and the
employment is for the duration of the
season; and (4) casual employees or

Bukidnon State University College of Law


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employees who are neither regular nor


project employees.
Article 280 of the Labor Code does
not mention fixed-term employment. It is
not expressly provided for under the Labor
Code. However, the Court in the Brent
School case recognized the validity of fixedterm employment. The Court defined fixedterm employment as a contract of
employment for a definite period which
terminates by its own terms or the end of
such period. The decisive determinant in
fixed-term employment should not be the
activites that the employee is called upon to
perform, but the day certain agreed upon
by the parties for the commencement and
termination of their employment relation.

Under the Civil Code, fixedterm employment contracts are not


limited, as they are under the present
Labor Code, to those by nature seasonal
or
for
specific
projects
with
predetermined dates of completion;
they also include those to which the
parties by free choice have assigned a
specific date of termination.The
decisive
determinant
in
term
employment is the day certain agreed
upon by the parties for the
commencement and termination of
their employment relationship, a day
certain being understood to be that
which much necessarily come, although
it may not be known when.- (just copied
from the net. ma_an) I think seasonal and project
employees are considered as fixed-period employees.

The fixed-period employment shall


be considered valid when:
(1.) it is entered into by the parties
without force, duress or improper pressure
being brought to bear upon the employee
and absent any other circumstance vitiating
consent; or

Page 21

(2.) it satisfactorily appears that


the employer and the employee dealt with
each other on more or less equal terms
with no moral dominance exercised but he
former or the latter. (Brent Doctrine)
4.

Who is considered regular seasonal and


regular casual employee?
A regular seasonal employee is one
who is called to work from time to time.
During a season they are employed;
temporarily laid off during off-season. They
are not, strictly speaking, separated from
the service but are merely considered on
leave of absence without pay until they are
reemployed.

Title I Termination of Employment (Contd)


Part 3. Management of Rights and the Just Causes
of Termination
Box 22

1.

Serious misconduct as a valid


reason of dismissal require a
certain elements. What are those?
>The misconduct to be serious
must be of such a grave aggravated
character and not merely trivial or
unimportant.

2.

If an employee, on ground of
inconvenience, disobeys and
order transferring him to another
location or job, may such
employee be dismissed?

A regular casual employee is one


who has rendered at least one year of
service, whether continuous or broken with
respect to the activity in which he is
employed. He is regular only for that work
activity for which he was hired. His
employment may be on-and-off, but every
time the particular work activity occurs, he
is the one to be rehired. (He is originally a
casual employee. After 1yr he becomes a
regular casual ee)
5.

6.

What are the rights of a probationary


employee?
The following are the rights of a
probationary employee:
1. Security of tenure;
2. To be considered a regular
employee if he is allowed to
work after the probationary
period.
May the employer contract out a regular
job?
Yes, an employer may contract out
a regular job, provided that it is done in
good faith and justified by exigencies of the
business.

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>In order to constitute a valid


reason to dismiss an employee for
disobeying an order the two
requisite
must
concur
(1)
employees attitude wrongful and
perverse and (2) qualities of the
order lawful, reasonable, made
known to the employee and
pertain to the duties of the
employee when it shown that it is
unnecessary, convenient, and
prejudicial to the displaced
employee such dismissal is valid.
3.

Is ignorance an excuse for having


violated a company policy or
regulation?
>Yes, ignorance of company policy
or regulation may be an excuse
when the act or omission is not
grave or where the act does not
constitute gross negligence.

4.

Under what conditions or


circumstances may an employee

Page 22

be dismissed on ground of loss of


confidence?
A. Loss of confidence should not be
simulated
B. It should not be used as a
subterfuge for causes which are
improper illegal/unjustified;
C. It may not be arbitrarily asserted
in the face of overwhelming
evidence to the contrary.
D. it must be genuine, not mere
afterthought to justify earlier
action taken in bad faith.
E. Employee involved holds a
position of trust and confidence.
Title I Termination of Employment (contd)
Part 4. Authorized Causes of Termination
Box 23
1.

In what respects are the authorized


causes and the just causes the same
and different?
Ans. They are the same in the sense that
they are the causes and modes of
termination of employment and differs in
the sense that dismissal for just cause is
where an employee is dismissed for causes
which are attributable to his fault or
culpability while termination for authorized
cause is where an employee is dismissed for
causes independent of his fault.
In just cause a dismissed employee is
not entitled to separation pay while in
authorize cause is entitled to separation
pay.

2.

What are the authorized causes and the


corresponding rates of separation pay?
What authorized cause does not entail
payment of separation pay?

Bukidnon State University College of Law


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Ans. The following are the authorized


causes and corresponding rates of
separation pay:
a. Automation/Robotics and Redundancy
equivalent to at least one month pay
or at least one month pay for every
year of service, whichever is higher, a
fraction of six(6) months is considered
as one (1) year.
b. Retrenchment equivalent to one
month pay or at least one-half month
pay for every year of service, whichever
is higher, a fraction of six (6) months is
considered as one (1) whole year.
c. Closures or cessation of operations not
due to serious business losses or
financial reverses equivalent to one
month pay or at least one-half month
pay for every year of service, whichever
is higher, a fraction of six (6) months is
considered as one (1) whole year.
d. Disease- equivalent to at least onemonth salary or to month salary for
every year of service, whichever is
greater, a fraction of at least 6 months
shall be considered one (1) whole year.
The following are the authorized cause
that does not entail payment of
separation pay:
a.

b.

If due to severe business losses or


financial reverses there is no
separation pay due;;
Closure due to an act of
government.

3. How does preventive retrenchment differ from


redundancy?
There is retrenchment where employer
reduces the number of its personnel in order to
prevent further losses in his business operations.
There will be redundancy when for
purposes of economy a company decides to

Page 23

reorganize its departments by imposing on


employees of one department the duties performed
by the employees of the other department, thus
rendering unnecessary the job of the latter, the
services of the employees whose functions are now
being performed by the former, may be validly
terminated on the ground of redundancy.
4. Explain the four
retrenchment (SINS)
a.
b.

c.

d.

standards

of

reasonable opportunity within


which to explain his side;
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 of termination
served
on
the
employee
indicating
that
upon due
consideration
of
all
the
circumstances, grounds have
been established to justify his
termination

valid

The losses expected are substantial and


not merely de minimis in extent;
The apprehended substantial loss are
reasonably imminent, can be perceived
objectively and in good faith by the
employer;
Retrenchment must be reasonably
necessary to prevent the expected
losses; and
Expected or actual losses must be
proved by sufficient and convincing
evidence.

For termination of employment based


on authorized causes;
a)

Title I Termination of Employment (contd)


Part 5. Procedure to Terminate Employment
Box 24
1.

In employment termination what does


procedural due process consists of- for the
just causes? For the authorized?
Ans. As a general rule the law requires that
the employer must furnish the worker
sought to be dismissed with two written
notices before termination of employment
can be legally effected.

2.

upon service of a written notice


to the employee and the
appropriate Regional Office of
the Department at least thirty
days before the effectivity of the
termination,
specifying
the
ground
or
grounds
for
termination.

If the termination is justified by a valid


cause but done without observance of due
process, is the termination legal?

Generally, no because the law is very clear as to


the due process requirements that an employer who
seeks to terminate the employment of its employee
must notify him in writing at least 30 days before the
intended dismissed.

For termination based on just causes:


a)

a written notice served on the


employee specifying the ground
or grounds for termination, and
giving
to
said
employee

Bukidnon State University College of Law


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However, if an employee consented to his


retrenchment
or
voluntarily
applied
for
retrenchment with the employer the required
previous notice to the DOLE is not necessary as the
employee thereby acknowledged the existence of a
valid cause for termination of his employment.

Page 24

3. What is constructive dismissal? Is


preventive suspension exceeding thirty days
considered constructive dismissal?

If the act committed by the employee


does not amount to serious misconduct
or does not reflect on the employees
moral character, the court may require
the employer to pay as a measure of
social justice, separation pay to the
employee.

Constructive dismissal is defined as quitting


because continued employment is rendered
impossible, unreasonable or unlikely, as an offer
involving demotion in rank and a diminution in pay.

b) On the ground of compassionate


justice.

Yes, preventive suspension exceeding 30


days is constructive dismissal because constructive
dismissal does not always involve forthright
dismissal or diminution in rank, compensation,
benefit and privileges.
There may be constructive dismissal if an act
of clear discrimination, insensibility, or disdain by an
employer becomes so unbearable on the part of the
employee that it could foreclose any choice by him
except to forego his continued employment.

c)

2.

What are the kinds of separation pay?


Under the present law and jurisprudence
separation pay may be viewed in four ways
or contexts:

4. Who has the burden of proof in criminal


cases?

a)

The burden of proof rests upon the


employer to show that the dismissal is for
just and valid cause. Failure to do so would
necessarily mean that the dismissed was
not justified and therefore, was illegal.

Part 6. Consequences of Termination


Box 25

c)
If the termination is based on any
authorized cause, the employee is entitled
to separation pay, and nothing if it is due
to a just cause. What are the exceptions?
As a general rule, employee is not entitled
to separation pay if cause of dismissal is due
to an act imputable to him. Exceptions to
these are as follows, to wit;
a)

When the court finds justification in


applying the principle of social justice
well entrenched in 1987 Constitution.

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Separation pay as employers statutory


obligation in cases of legal termination
due to authorized causes under Article
283 or 284;

b) Separation pay as financial assistance,


as an act of social justice, even in cases
where the employee is ordered
reinstated but reinstatement is not
feasible;

Title I Termination of Employment (contd)

1.

It is stipulated in the employment


contract or collective bargaining
agreement (CBA), or it is in by
established employer practice or policy.

Separation pay in lieu reinstatement in


illegal dismissal cases where the
employee is ordered reinstated but
reinstatement is not feasible;

d) Separation pay as an employment


benefit granted in CBA or company
policy.

3.

May backwages be awarded on appeal if


the employee did not appeal its denial?

Page 25

Earlier court decisions gave different


answers: one ignored technicality adisnd
granted the backwages, the other denied
backwages because of technicality. By 2001
the more liberal decision has prevailed. In
St. Michaels Institute, the court state that,
The NLRC did not
award backwages to the respondents or
that the respondents themselves did not
appeal the NLRC decision does not bar the
Court of Appeal from awarding backwages.
While as a general rule, a party who has
not appealed is not entitled to affirmative
relief other than the ones granted in the
decision of the court below, the Court of
Appeals is imbued with sufficient authority
and disretion to review matters, not
otherwise assigned as or rrors on appeal, if
it finds that their consideration is necessary
in arriving at a complete and just resolution
of the case or to serve the interests of
justice or to avoid dispensing piecemeal
justice. Substantive rights like the award of
backwages resulting from illegal dismissal
must not by a rigid and technical application
of the rules.
4.

5.

In termination disputes, what is


indemnity? May it be imposed in addition
to backwages ?
Indemnity is meant to vindicate or
recognize the right of an employee to due
process which have been violated by the
employer.
The Wenphil doctrine says essentially that a
dismissal for a valid reason is legal and
valid, but the employer who does not
observe procedural due process must pay
some indemnity. As a general rule,
indemnity is imposed for the failure of the
employer to observe due process
requirement as enunciated in the
Constitution. The Serrano ruling which
grants full backwages is not meant to do
away with indemnity to the employee
whose right to due process was violated;
that is, the indemnity is aside from the full
wages.
Backwages-is based on equity to workers
for earnings lost due to their illegal
dismissal from work.

In what situations may reinstatement be


denied even if the termination is invalid?
6.
a)

I f between the time the wrongful


discharged occurred and reinstatement
order was issued, the employers
commercial or financial circumstances
have changed, the court cannot compel
the employer, despite the unfair labor
practice , to reinstate such number of
employees as may exceed his needs
under the altered conditions.

b) Illegally dismissed employee who is


approaching or has reached the
retirement age shall not be ordered
reinstated.

c)

Reinstatement not feasible due to


strained relations.

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Is a manager personally liable for the


illegal dismissal of an employee?
As a general rule the manager is not
personally liable for the illegal dismissal of
an employee as enunciated in Sunio
Doctrine.
Generally, 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 meto
evadembers may be disregarded. 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. The shield of
corporate fiction should be pierced when it
is deliberately and maliciously designed to

Page 26

evade financial obligations to employees.


Directors are guilty of gross negligence or
bad faith in directing the affairs of the
corporation shall be liable jointly and
severally for all damages resulting
therefrom suffered by the corporation, its
stockholders or members or other persons.

James 1:5(KJV) - If any of you lack


wisdom, let him ask of God, that
giveth to all men liberally, and
upbraideth not; and it shall be given
him.

Bukidnon State University College of Law


Batch 2014

Page 27