You are on page 1of 71

San Beda College of Law

MEMORY AID

BOOK FIVE
LABOR RELATIONS
TITLE I
POLICY AND DEFINITIONS
ART. 211. DECLARATION OF POLICY
LABOR RELATIONS the interactions
between the employer and employees
and their representatives and the
mechanism by which the standards and
other
terms
and
conditions
of
employment are negotiated, adjusted
and enforced.
LABOR RELATIONS LAW those
intended to stabilize the relations of
employees and their employers, adjust
differences between them through the
encouragement of collective bargaining,
and settle labor disputes through
conciliation, mediation and arbitration.

it defines the status, rights, and


duties and the institutional
mechanisms that govern the
individual
and
collective
interactions
of
employers,
employees
or
their
representatives.
Absent an employer-employee
relation, there is no labor
relations to speak of.
Collective bargaining process is
possible only when there is a labor
organization, i.e., (1) labor union
or (2) employee association.

POLICY is intended to install industrial


democracy centered on collective
bargaining, leading to social justice as
the end goal.
PARTIES TO LABOR RELATIONS CASES:
1. employees organization,
2. management, and
3. the public
The public is always to be
considered in disputes between

LABOR LAW COMMITTEE

IN

LABOR LAW

labor and capital, and it has


been held that the rights of the
general public are paramount.
Labor relations policy under the LC is
embodied in Section 3 Article XIII of
the 1987 Constitution which guarantees
to all workers their right among others
to:
1. Self-organization,
2. Collective
bargaining
and
negotiations,
3. Peaceful and concerted activities
including the right to strike in
accordance with law, and
4. Participate
in
policy
and
decision-making
processes
affecting
their
rights
and
benefits as may be provided by
law.
ART. 212. DEFINITIONS
EMPLOYER- one who employs the
services of others; one for whom
employees work and who pays their
wages or salaries.
any person acting in the interest of an
employer, directly or indirectly. The
term does not include a labor
organization or any of its officers and
agents, EXCEPT when acting as an
employer.
EMPLOYEE- one who works for an
employer; a person working for salary or
wages.
Shall not be limited to the
employees of a particular
employer, and 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
unfair labor practice IF he has
not obtained any other:
1. Substantially equivalent
and
2. Regular employment
(Art.212f)
ICAWO vs. CIR (16 SCRA 562): The
category of any employee is so broad
as to justify employee status for
supervisors, regular workers, casual

CHAIRPERSON: Francis Benedict Rotutar ASSISTANT CHAIRPERSON: Juanito Lim, Jr. SUBJECT HEADS: Aimee Roselle
Sabilala(Labor Standards), Elsa Villaflor(Labor Relations), Maria Fe Taal (Special Laws) EDP: Flora Sherry Basquiez
ASST. EDPS: Jennifer Trinidad, Ma. Jasmine Isip, Emil Bien Ongkiko, Kareen Faye Pioquinto

San Beda College of Law


MEMORY AID
employees,
emergency
laborers,
substitute workers, seasonal workers,
part-time workers and other special
work groups.
APEX MINING CO., vs. NLRC (196 SCRA
251): Laundrywoman not actually
serving the family of the employer but
working in the staff houses or within the
premises of the employers business is a
regular employee and is not included in
the definition of domestic helper.
FELIX vs. BUENASEDA (240 SCRA 139):
Residency or resident physician position
in a medical specialty is not employment
but connotes training and temporary
status. (No E-E relationship)
WORKERS ASSOCIATION - any
association of workers organized for the
mutual aid and protection of its
members or for any legitimate purpose
other than for collective bargaining.
INDEPENDENT UNION It refers to any
labor organization operating at the
enterprise level whose legal personality
is derived through an independent action
for registration with the Bureau of Labor
Relations (BLR) of the Department of
Labor and Employment prescribed under
Art. 234. It may be affiliated with a
federation, national or industry union, in
which case it may also be referred to as
an affiliate.
FEDERATION - any labor organization
with at least 10 locals/chapters or
affiliates each of which must be a duly
certified or recognized as the sole and
exclusive collective bargaining agent of
the employees of an appropriate
bargaining unit.
LEGITIMATE WORKERS ASSOCIATION
refers to an
association of workers
organized for mutual aid and protection
of its members of for any legitimate
purpose other than collective bargaining
registered with the Department in
accordance with Rule III, Sections 2-C
and 2-D of these rules.
LABOR MANAGEMENT COUNCIL

LABOR LAW COMMITTEE

IN

LABOR LAW

Deals with the employer on


matters affecting the employees
rights, benefits and welfare.
Purposes are to:

a.
b.
c.

promote gainful employment


improve working conditions and
achieve increased productivity
(RA 6971)

LABOR ORGANIZATION any union or


association of employees which exists in
whole in part for the purpose
of
collective bargaining with employers
concerning terms and conditions of
employment.
LEGITIMATE LABOR ORGANIZATIONany labor organization which is duly
registered with the Department of Labor.
The term includes a local/chapter of the
Bureau of Labor Relations directly
chartered by a legitimate federation or
national union which has been duly
reported
to
the
Department
in
accordance with Rule VI, Section 2 of
Book V of the Rules Implementing the
LC.
LABOR DISPUTE includes
controversy or matter concerning:
1.
2.

any

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.

The test
of whether a labor controversy comes
within the definition of a labor dispute
depends on whether it involves or
concerns
terms,
conditions
of
employment, or representation.
TYPES OF LABOR DISPUTES:
1. Labor Standards Disputes
a. Compensation
[e.g.,
underpayment
of
minimum
wage; stringent output quota;
illegal pay deductions]

CHAIRPERSON: Francis Benedict Rotutar ASSISTANT CHAIRPERSON: Juanito Lim, Jr. SUBJECT HEADS: Aimee Roselle
Sabilala(Labor Standards), Elsa Villaflor(Labor Relations), Maria Fe Taal (Special Laws) EDP: Flora Sherry Basquiez
ASST. EDPS: Jennifer Trinidad, Ma. Jasmine Isip, Emil Bien Ongkiko, Kareen Faye Pioquinto

San Beda College of Law


MEMORY AID
b. Benefits
c.

[ e.g., nonpayment of
holiday pay, overtime pay or other
benefits]
Working conditions [e.g., unrectified
work hazards]

2. Labor Relations Disputes


a. Organizational right dispute/
unfair labor practice [e.g.,
coercion,
restraint
or
interference
in
unionization
efforts; reprisal or discrimination
due to union activities; company
unionism]
b. Representation disputes [e.g.,
determination of the collective
bargaining unit; ULP strike;
uncertainty as to determination
of the sole and exclusive
bargaining
agent
of
the
employees in an appropriate
bargaining unit which is the
majority union]
c. Bargaining disputes [e.g., refusal
to bargain (ULP); bargaining
deadlock; economic strike or
lockout]
d. Contract
administration
or
personnel policy disputes [e.g.,
noncompliance
with
CBA
provisions
(ULP
if
gross
noncompliance with economic
provisions);
disregard
of
grievance machinery; violation
no strike/no lockout agreement]
e. Employment tenure disputes
[e.g., non regularization of
employees; illegal termination;
non-issuance of employment
contract]
PARTIES TO A DISPUTE:
1. PRIMARY PARTIES employer,
employees, union
2. SECONDARY PARTIES voluntary
arbitrator, agencies of DOLE (BLR,
VAC), NLRC, Sec. of Labor, Office of
the President

TITLE II
NATIONAL LABOR RELATIONS
COMMISSION
CHAPTER I

LABOR LAW COMMITTEE

IN

LABOR LAW

CREATION AND COMPOSITION


ART. 213. NATIONAL
RELATIONS COMMISSION

LABOR

NLRC an administrative body with


quasi-judicial functions and the principal
government agency that hears & decides
labor-management disputes; attached to
the DOLE for program & policy
coordination only.
POWERS of the NLRC as amended by
R.A. 6715

EN BANC

1.

Promulgating
rules
&
regulations
governing
the
hearing & disposition of cases
before any of its divisions and
regional
branches
and
formulating policies affecting
its
administration
and
operations.

2.

Under R.A. 7700: to allow cases


within the jurisdiction of any
division to be heard and
decided by any other decision
whose docket allows the
additional workload.

DIVISION

1.

Exercises
adjudicatory
or
appellate power over decisions
of Labor Arbiters and Regional
Directors of the DOLE over
monetary claims not over
P5,000.00 and all other powers,
functions and duties through its
divisions.

TRIPARTISM

The NLRC is composed of five (5)


divisions.

Three
(3)
sectors
are
represented in the composition
of the NLRC.

Each division composed of three


commissioners
will
have

CHAIRPERSON: Francis Benedict Rotutar ASSISTANT CHAIRPERSON: Juanito Lim, Jr. SUBJECT HEADS: Aimee Roselle
Sabilala(Labor Standards), Elsa Villaflor(Labor Relations), Maria Fe Taal (Special Laws) EDP: Flora Sherry Basquiez
ASST. EDPS: Jennifer Trinidad, Ma. Jasmine Isip, Emil Bien Ongkiko, Kareen Faye Pioquinto

San Beda College of Law


MEMORY AID
representatives
following:

from

QUALIFICATIONS OF THE CHAIRMAN AND


THE COMMISSIONERS:
1. must be a member of the
Philippine Bar;
2. must have been engaged in the
practice of law in the Philippines
for at least 15 years;
3. must
have
experience
or
exposure in handling labor
management relations for at
least 5 years; and
4. preferably a resident of the
region where he is to hold office.

The appointment of the Chairman


and the Commissioners of the NLRC
are not subject to confirmation by
the Commission on Appointments.
QUALIFICATIONS OF EXECUTIVE
LABOR ARBITERS/LABOR ARBITERS:
1. must be members of the
Philippine Bar;
2. must have been engaged in the
practice of law in the Philippines
for at least 7 years; and
3. must
have
experience
or
exposure in handling labor
management relations for at
least 3 years.

TERM OF OFFICE OF THE CHAIRMAN,


COMMISIONERS, AND LABOR ARBITERS:

They shall hold office during good


behavior until they reach the age of
65 unless removed for causes as
provided by law or become
incapacitated to discharge the
function of his office.

LABOR LAW COMMITTEE

LABOR LAW

the

1. from the public sectornominated by the Secretary


of Labor
2. workers organizationsnominated by the labor
federation
3. employer
and
management
sectornominated by the Employers
Confederation
of
the
Philippines (ECOP)

IN

A.
EXCLUSIVE
AND
ORIGINAL
JURISDICTION OF THE NLRC:
1. Cases certified to it for compulsory
arbitration by the Secretary of Labor
under Art. 263 CERTIFIED CASES;
2. INJUNCTION CASES under Art. 218
and 264; AND
3. CONTEMPT CASES
B.

EXCLUSIVE APPELLATE JURISDICTION


OF THE NLRC:
1.Cases
DECIDED
BY
LABOR
ARBITERS under Art 217b of the
Labor Code and Sec 10 RA
8012(Migrant Workers Act); and
2.Cases DECIDED BY THE REGIONAL
OFFICES OF DOLE IN THE EXERCISE
OF ITS ADJUDICATORY FUNCTION
under Art 129 of the Labor Code over
monetary
claims
of
workers
amounting to not more that
P5,000.00
THE NLRC ONLY SITS EN BANC FOR
PURPOSES OF:
a. promulgating rules and regulations
governing the hearing and disposition of
cases before any of its divisions and
regional branches, and
b. formulating policies affecting its
administration and operations.
The Commission may only sit
en banc for the determination
of policies and NOT for
purposes of adjudication. (RA
6715)
Adjudication of cases certified
to the NLRC, or appealed to it
from the decision of its Labor
Arbiters are referred to and
decided by its five (5) divisions.
-Petitions for certiorari (Rule 65)
against decisions of the NLRC should
henceforth be initially filed with the
Court of Appeals in strict observance of
the doctrine on the hierarchy of courts
as the appropriate forum for the relief

CHAIRPERSON: Francis Benedict Rotutar ASSISTANT CHAIRPERSON: Juanito Lim, Jr. SUBJECT HEADS: Aimee Roselle
Sabilala(Labor Standards), Elsa Villaflor(Labor Relations), Maria Fe Taal (Special Laws) EDP: Flora Sherry Basquiez
ASST. EDPS: Jennifer Trinidad, Ma. Jasmine Isip, Emil Bien Ongkiko, Kareen Faye Pioquinto

San Beda College of Law


MEMORY AID
desired.
The Court of Appeals is
procedurally equipped to resolve unclear
or ambiguous factual finding, aside from
the increased number of its component
divisions. (St. Martins Funeral Homes
vs. NLRC; G.R. No. 130866)

4. Claims for actual, moral,


exemplary and other forms of
DAMAGES arising from employeremployee relations;

- Labor cases are not subject to


Barangay Conciliation since ordinary
rules of procedure are merely suppletory
in character vis--vis labor disputes
which are primarily governed by labor
laws.

5. CASES ARISING FROM ANY


VIOLATION OF ART 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 P5,000.00 regardless
of whether accompanies with a
claim for reinstatement;

- The failure of the petitioner to


file a motion for reconsideration of the
decision of NLRC before filing a petition
for certiorari has in certain instances
been held not to be a fatal omission.
- In certain cases however the
filing of a Motion for Reconsideration is
deemed a condition sine qua non for the
filing of a Petition for Certiorari.

CHAPTER II
POWERS AND DUTIES

7. MONETARY
CLAIMS
OF
OVERSEAS CONTRACT WORKERS
under the Migrant Workers Act of
1995; and

ART. 217. JURISDICTION OF


LABOR ARBITERS AND THE COMMISSION

8. Claims of employees against


GOCCs if the latter does not
have an original charter and has
been incorporated under the
Corporation Code.

EXCLUSIVE
AND
ORIGINAL
JURISDICTION OF LABOR ARBITERS:

1. ULP cases;
2. TERMINATION disputes;

LABOR LAW COMMITTEE

LABOR LAW

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;

- Findings of facts of a labor tribunal


are accorded the utmost respect by the
courts and are well-nigh conclusive if
supported by substantial evidence.

Except as otherwise provided


under this
Code the Labor Arbiters
shall have original
and exclusive
jurisdiction to hear and decide, within
30 calendar days after the submission of
the case by the parties for decision
without extension, even in the absence
of stenographic notes, the following
cases involving all workers, whether
agricultural or non-agricultural:

IN

Although the provision speaks of


EXCLUSIVE
AND
ORIGINAL
JURISDICTION OF labor arbiters,
the cases enumerated may
instead be submitted to a
voluntary
arbitrator
by
agreement of the parties under
Art. 262.
The law prefers
voluntary
over
compulsory
arbitration.

Cases which must be disposed of


by the labor arbiter by referring the

CHAIRPERSON: Francis Benedict Rotutar ASSISTANT CHAIRPERSON: Juanito Lim, Jr. SUBJECT HEADS: Aimee Roselle
Sabilala(Labor Standards), Elsa Villaflor(Labor Relations), Maria Fe Taal (Special Laws) EDP: Flora Sherry Basquiez
ASST. EDPS: Jennifer Trinidad, Ma. Jasmine Isip, Emil Bien Ongkiko, Kareen Faye Pioquinto

San Beda College of Law


MEMORY AID
same to the grievance machinery and
voluntary arbitration:
a.
Disputes
on
the
interpretation or implementation of
CBA and
b. those
arising
from
the
interpretation or enforcement of
company personnel policies.

The labor arbiter and the NLRC have


no jurisdiction over claims filed by
employees against international
In the absence of service of
summons or a valid waiver
thereof, the hearings and
judgment rendered by the labor
arbiter are null and void.

COMPULSORY ARBITRATION: The


process of settlement of labor disputes
by a government agency which has the
authority to investigate and make and
award binding to the parties.
The NLRC may conduct compulsory
arbitration only in national interest cases
referred to it by the DOLE secretary.
Labor arbiters
employment related.
ART. 218.
COMMISSION

jurisdiction

is

POWERS OF THE

POWERS OF THE NLRC:


a.
R
ule-making power [promulgation
of rules & regulations governing
disposition of cases before any of
its divisions/regional offices]
b.
P
ower
to
issue
compulsory
processes [administer oaths,
summon
parties,
issue
subpoenas]
c. Power to investigate matters and
hear
disputes
within
its
jurisdiction [adjudicatory power
original
&
appellate
jurisdiction over cases]
d. Contempt power [218]
e. Power to issue injunctions and
restraining orders

LABOR LAW COMMITTEE

IN

LABOR LAW

agencies such as IRRI, WHO etc.


unless they expressly waive their
immunity. (Lasco vs. UNRFNRE)

They also have no jurisdiction over


illegal dismissal cases of corporate
officers which fall under PD 902-A
and now fall under the jurisdiction of
the Regular Courts pursuant to the
New Securities Regulation Code.
[Formerly under the jurisdiction of
the Securities and Exchange
Commission (SEC) (Dily-Daly Nakpil
vs NLRC)]

PROCEDURE FOR THE ISSUANCE


OF RESTRAINING ORDER/ INJUNCTION:
a. filing of a verified PETITION
b. HEARING AFTER DUE AND PERSONAL
NOTICE has been served in such manner
as the Commission shall direct, to:
a. all known persons against
whom the relief is sought and
b. also to the Chief Executive
or other public officials of the
province or city within which the
unlawful
acts
have
been
threatened
or
committed
charged with the duty to protect
the complainants property.
c. RECEPTION AT THE HEARING OF
THE TESTIMONIES OF WITNESSES
with
opportunity
for
crossexamination, in support of the
allegations of the complaint made
under oath as well as testimony in
opposition thereto
d. FINDING OF FACT of the Commission
to the effect that :
prohibited or unlawful acts
have been threatened and will
be committed, or have been
committed
and
will
be
continued unless restrained,
but no injunction or temporary
restraining order shall be
issued on account of any
threat, prohibited or unlawful
act,
except
against
the
persons,
association
or
organization making the threat
or committing the prohibited
or unlawful act or actually

CHAIRPERSON: Francis Benedict Rotutar ASSISTANT CHAIRPERSON: Juanito Lim, Jr. SUBJECT HEADS: Aimee Roselle
Sabilala(Labor Standards), Elsa Villaflor(Labor Relations), Maria Fe Taal (Special Laws) EDP: Flora Sherry Basquiez
ASST. EDPS: Jennifer Trinidad, Ma. Jasmine Isip, Emil Bien Ongkiko, Kareen Faye Pioquinto

San Beda College of Law


MEMORY AID
authorizing or ratifying the
same after actual knowledge
thereof.
That
substantial
and
irreparable injury to the
complainants property will
follow
That as to each item of relief
to be granted, greater injury
will
be
inflicted
upon
complainant by the denial of
the relief than will be inflicted
upon the defendants by the
granting of the relief
That complainants has no
adequate remedy at law
That public officers charged
with the duty to protect
complainants property are
unable or unwilling to furnish
adequate protection.
e. Posting of a BOND
IRREPARABLE INJURY: An injury
which
cannot
be
adequately
compensated in damages due to the
nature of the injury itself or the nature
of the right or property injured or when
there exists no pecuniary standard for
the measurement of damages.
ADEQUATE REMEDY: One that
affords relief with reference to the
matter in controversy and which is
appropriate
to
the
particular
circumstances of the case.
The power of the NLRC to enjoin or
restrain the commission of any or all
prohibited or unlawful acts under Art.
218 of the Labor Code can only be
exercised in a labor dispute.
REQUISITES BEFORE TRO MAY BE
ISSUED EX PARTE:
1. The complainant shall ALLEGE
THAT, unless a TRO is issued
without notice, a substantial
and
irreparable
injury
to
complaints property will be
unavoidable;
2. TESTIMONY UNDER OATH is
sufficient, if sustained, to justify
the Commission in issuing a

LABOR LAW COMMITTEE

IN

LABOR LAW

temporary
injunction
upon
hearing after notice;
3. The complainant shall first FILE
AN
UNDERTAKING
WITH
ADEQUATE SECURITY/BOND in
an amount to be fixed by the
Commission
sufficient
to
recompense those enjoined for
any loss, expenses or damage
caused by the improvident or
erroneous issuance of such order
or injunction, including all
reasonable costs, together with
a reasonable attorneys fee, and
expense of defense against the
granting of any injunctive relief
sought in the same proceeding
and subsequently denied by the
Commission.
The TRO shall be effective
for no longer than 20 days and shall
become void at the expiration of
said 20 days counted from the date
of the posting of the bond.
It may be lifted or it may be
upgraded to a permanent injunction.
The
procedural
and
substantial requirements of Art 218
(e) must be strictly complied with
before an injunction may issue in a
labor dispute.
THE FOLLOWING CAN ISSUE
INJUNCTIONS/ TRO IN LABOR DISPUTES:
1. President (ART. 263, g)
2. Secretary of Labor (ART. 263, g)
3. NLRC (218)
4. Labor Arbiters (ART. 217/RULE XI
Sec. 1 of IR&R)
5. Regional Directors
6. Med- Arbiters
ART. 219. OCULAR INSPECTION
The Chairman, any Commissioner,
labor Arbiter or their duly authorized
representatives may, at anytime during
working hours:
a. Conduct an ocular inspection on
any establishment, building,
ship,
place
or
premises,
including any work, material,
implement,
machinery,

CHAIRPERSON: Francis Benedict Rotutar ASSISTANT CHAIRPERSON: Juanito Lim, Jr. SUBJECT HEADS: Aimee Roselle
Sabilala(Labor Standards), Elsa Villaflor(Labor Relations), Maria Fe Taal (Special Laws) EDP: Flora Sherry Basquiez
ASST. EDPS: Jennifer Trinidad, Ma. Jasmine Isip, Emil Bien Ongkiko, Kareen Faye Pioquinto

San Beda College of Law


MEMORY AID
appliance or any object therein;
and
b. Ask any employee, laborer, or
any person as the case may be
for any information or date
concerning
any
matter
or
question relative to the object of
the investigation
ART. 221. TECHNICAL RULES NOT
BINDING AND PRIOR RESORT TO
AMICABLE SETTLEMENT
The NLRC may disregard technical
rules of procedure in order to give life to
the constitutional mandate affording
protection to labor. (Principe vs.
Philippine-Singapore Transport Services
Inc.)

RES JUDICATA applies only to


judicial or quasi-judicial proceedings and
NOT to the exercise of administrative
powers.
APPROVAL OF AN AMICABLE
SETTLEMENT BY A LABOR ARBITER
An amicable settlement of a labor
dispute should be approved by the labor
arbiter before whom the case is pending
after being satisfied that:
a. it was VOLUNTARILY ENTERED into
by the parties and

after having EXPLAINED


TO THEM THE TERMS AND
CONSEQUENCES thereof.

PURPOSE: for the employees


protectionbecause the labor arbiter
before whom the case is pending would
be in a better position than just any
other person to personally determine the
voluntariness of the agreement and
certify its validity (Periquet vs. NLRC).
The Rules of Court are applied in a
suppletory character.
COMPROMISE, as a way of settling
disputes is encouraged
through compromise, the
parties, by making reciprocal
concessions, avoid litigation

LABOR LAW COMMITTEE

IN

LABOR LAW

or put an end to one already


commenced.
ART. 222. APPEARANCES AND
FEES
APPEARANCE OF NON-LAWYERS
BEFORE THE COMMISSION:
GENERAL RULE: ONLY lawyers can
appear before the NLRC or a Labor
Arbiter
EXCEPTIONS:
Non-Lawyers can
appear ONLY in the following instances:
1.
if
they
represent
themselves;
2.
if
they represent their
organization or
members
thereof; or
3. if he is a duly accredited
member of the legal aid office
duly recognized by the DOJ in
cases referred thereto by the
latter or by the IBP.
ATTORNEYS FEES:
1. Art. 111 Labor Code (simple
monetary claim)
The maximum amount to be
given a lawyer for his legal
assistance rendered which is 10% of
the total monetary award adjudged
the employees excluding the award
for moral and exemplary damages.
To demand more than this is
unlawful.
2. Art. 222
a.

Attorneys fees for CBA


negotiations and conclusion shall
be in the amount agreed upon by
the parties to be taken from the
union funds and not from
individual union members.
b. This article prohibits the
payment of attorneys fees only
where the same is effected
through forced contributions
from the workers form their own
funds as distinguished from union
funds.

CHAIRPERSON: Francis Benedict Rotutar ASSISTANT CHAIRPERSON: Juanito Lim, Jr. SUBJECT HEADS: Aimee Roselle
Sabilala(Labor Standards), Elsa Villaflor(Labor Relations), Maria Fe Taal (Special Laws) EDP: Flora Sherry Basquiez
ASST. EDPS: Jennifer Trinidad, Ma. Jasmine Isip, Emil Bien Ongkiko, Kareen Faye Pioquinto

San Beda College of Law


MEMORY AID
c.

Neither the lawyer nor the


union itself may require the
individual workers to assume the
obligation to pay the attorneys
fees from their own pockets.
Any agreement to the contrary
shall be null and void.

ARTICLE 211 VS ARTICLE 222


ART. 211

PURPOSE: to
fix the limit on the
amount
of
attorneys
fees.
The
victorious
party may recover
in
any
administrative or
judicial
proceeding.

Prohibits
the
payment
of
attorneys fees only
when it is effected
through
forced
contribution from the
workers from their
own
funds
as
distinguished
from
union funds
PURPOSE:
to
prevent
the
imposition on the
workers of the duty
to
individually
contribute
their
respective shares in
the fee to be paid to
the attorney for his
services to the union.

CHAPTER III
APPEAL
ART. 223. APPEAL
GROUNDS FOR APPEAL:
1.

If there is prima facie evidence


of abuse of discretion on the part of
the Labor Arbiter
2.
If the decision, order or award
was secured through fraud or
coercion,
including
graft
and
corruption;
3.
If made purely on questions of
law; and
4.
If serious errors in the findings of
facts are raised which would cause
grave or irreparable damage or
injury to the appellant.
PERIODS
APPEAL:

WITHIN

LABOR LAW COMMITTEE

WHICH

LABOR LAW

A. decisions of the regional director:


within 5 calendar days from
receipt of the order [129 LC
Recovery of wages and simple
money claims of the amount not
exceeding P5,000.00].
B. decisions of the labor arbiter:

ART. 222

Prohibits the
award of attorneys
fees which exceed
10% of the amount
of
wages
recovered.

IN

TO

within 10 calendar days from


the receipt of the decision.
The appeal must be under oath
and must state specifically the
grounds relied upon and the
supporting arguments.
Where the 10th day falls on a
Saturday, Sunday
or
legal
holiday, the appeal may be filed
on the next business day. (Rules
of Procedure of NLRC)

PERIOD
TO
APPEALNOT
EXTENDIBLE
It is the policy of the state to
settle expeditiously labor
disputes.
The perfection of an appeal
within
the
statutory/
reglementary period is not
only mandatory but also
jurisdictional and failure to
do so renders the questioned
decision final and executory
as to deprive the appellate
court of jurisdiction to alter
the final judgment of the
RDs and LAs.
(Aboitiz
Shipping
Employees
Association vs. Trajano)
REQUISITES FOR THE PERFECTION
OF AN APPEAL TO THE NLRC:
1. Filing
of
A
VERIFIED
MEMORANDUM OF APPEAL within
the required period of appeal;
2. In case of monetary award, when
the appellee is the employer he
should file an APPEAL BOND
corresponding to the monetary
award excluding awards for moral
and exemplary damages and
attorneys fees.
Where the employer
failed to post a bond to
perfect its appeal, the

CHAIRPERSON: Francis Benedict Rotutar ASSISTANT CHAIRPERSON: Juanito Lim, Jr. SUBJECT HEADS: Aimee Roselle
Sabilala(Labor Standards), Elsa Villaflor(Labor Relations), Maria Fe Taal (Special Laws) EDP: Flora Sherry Basquiez
ASST. EDPS: Jennifer Trinidad, Ma. Jasmine Isip, Emil Bien Ongkiko, Kareen Faye Pioquinto

San Beda College of Law

10
MEMORY AID

remedy of the employee is a


motion
to
dismiss
the
appeal, NOT a petition for
mandamus.
The intention of the
lawmakers is to make the
bond
an
indispensable
requisite for the perfection
of an appeal by the
employer.
3. Appeal fee of P150;
4. Proof of service - furnish the
other party with a copy of the
memo of appeal.
Failure to give a copy of
the appeal to the appellee
within 10 days is not fatal IF
the
latter
was
not
prejudiced by the delay in
the service of said copy of
the appealtechnical rules
must yield to the broader
interest
of
substantial
justice. (Modern Fishing
Gear Labor Union vs. Noriel)
A mere notice of appeal
does not stop the running of
the reglementary period of
appeal.

EXECUTION PENDING APPEAL - the


decision of the labor arbiter ordering
the reinstatement of a dismissed or
separated
employee
shall
be
immediately executory insofar as the
reinstatement aspect is concerned and
the posting of an appeal bond by the
employer
shall
not
stay
such
execution.
There is no need for a
motion for the issuance of
writ of execution on the
reinstatement order as it is
self-executory.
(Pioneer
Texturizing Co. vs. NLRC)
Perfection of appeal within the
reglementary period is both MANDATORY
and JURISDICTIONAL. (ACDA vs NLRC;
Volkschel vs NLRC)
Non-service of the copy of the
appeal/appeal memorandum to the

LABOR LAW COMMITTEE

IN

LABOR LAW

adverse party is not a jurisdictional


effect and does not justify dismissal of
the appeal.
AMOUNT OF APPEAL BOND: amount
equal to the monetary award exclusive
of damages (moral and exemplary) plus
attorneys fees.
OPTIONS OF THE EMPLOYER IN
COMPLYING WITH AN ORDER OF
REINSTATEMENT WHICH IS IMMEDIATELY
EXECUTORY:
1.
He can ADMIT THE DISMISSED
employee back to work under the
same terms and conditions prevailing
prior to his dismissal or separation or
to a substantially equivalent position
if the former position is already
filled up, OR
2.
He
can
REINSTATE
THE
EMPLOYEE MERELY IN THE PAYROLL
WITH PAYMENT OF THE ACCRUED
SALARIES.
Failure to exercise one
of the foregoing options may
be compelled under pain of
contempt and the employer
may be made to pay instead
the salary of the employee.
A petition for relief from the decision
of the labor arbiter must strictly
comply with 2 reglementary periods:
1.

The petition must be filed within


60 days from knowledge of the
judgment; and
2.
The petition must be filed within
a fixed period of 6 months from
entry of such judgment.
Petitions filed beyond
said period will no longer be
entertained.
APPEAL FROM THE DECISION OF THE
NLRC:
No law allows an appeal from a
decision of the Secretary of Labor, or the
NLRC, or of a voluntary arbitrator. In
these cases, the special civil action of
certiorari, prohibition or mandamus

CHAIRPERSON: Francis Benedict Rotutar ASSISTANT CHAIRPERSON: Juanito Lim, Jr. SUBJECT HEADS: Aimee Roselle
Sabilala(Labor Standards), Elsa Villaflor(Labor Relations), Maria Fe Taal (Special Laws) EDP: Flora Sherry Basquiez
ASST. EDPS: Jennifer Trinidad, Ma. Jasmine Isip, Emil Bien Ongkiko, Kareen Faye Pioquinto

San Beda College of Law

11
MEMORY AID

under Rule 65 of the Rules of Court may


be lodged with the Court of Appeals.
(St. Martins Funeral Home vs. CA)
No Motion for Reconsideration is
allowed for any order, decision
or award of a Labor Arbiter.
However
a
Motion
for
Reconsideration of a Labor
Arbiters decision, award or
order which has all the elements
of an appeal may be treated as
appeal.
Only
one
Motion
for
Reconsideration of the decision,
award
or
order
of
the
commission on appealed cases
before it.

ART 224.
EXECUTION
DECISIONS, ORDER, OR AWARDS

OF

The decision of the Secretary of


Labor, the Commission, the Bureau or
Regional Director the Labor Arbiter, the
Med-Arbiter or the Voluntary Arbitrator
shall be final and executory after 10
calendar days from receipt thereof by
the parties and shall be executory
within ten (10) years.
The foregoing may, upon its
own initiative or on motion of
any interested party, issue a
writ of execution on a
judgment within 5 years from
the date it becomes final and
executory.
An independent action is
required for the execution of the
final judgement within the next
of following 5 years [ Phil.
National Railways vs NLRC (177
SCRA740, Sept. 19, 1989)]
The immediate execution of
judgment should be undertaken
only when the monetary award
had
been
carefully
and
accurately determined by the
NLRC and only after the
employer
is
given
the
opportunity to be heard and to
raise
objections
to
the
computation.

IN

LABOR LAW

BUREAU OF LABOR RELATIONS


ART. 226.
RELATIONS

BUREAU

OF

LABOR

Pursuant to E.O. 126, the NATIONAL


CONCILIATION AND MEDIATION BOARD
(NCMB) has absorbed the conciliation,
mediation and voluntary arbitration
functions of the BLR.

Jurisdiction
over
labormanagement
problems
or
disputes is also exercised by
other offices such as the DOLE
regional offices, and the Office
of the Secretary, NLRC, POEA,
OWWA, SSS-ECC, the regional
wage and productivity boards,
NWPC, and even the regular
courts
over
intra-corporate
disputes.

EXCLUSIVE
AND
ORIGINAL
JURISDICTION OF THE BLR
-to act at its own initiative or upon
the request of either or both parties on
all:
1.

INTRA- union conflicts

2.

INTER- union conflicts

3.
all DISPUTES, GRIEVANCES OR
PROBLEMS ARISING FROM OR
AFFECTING LABOR MANAGEMENT
RELATIONS IN ALL WORKPLACES
WHETHER AGRICULTURAL OR NONAGRICULATURAL.
The parties may however, by
agreement,
settle
their
differences by submitting their
case to a voluntary arbitrator
rather than taking the case to
the BLR.
CASES WHERE THE BLR HAS NO
JURISDICTION:
Those
arising
from
the
implementation or interpretation of
collective bargaining agreements which
shall be subject of grievance procedure
and/or voluntary arbitration.

TITLE III

LABOR LAW COMMITTEE

CHAIRPERSON: Francis Benedict Rotutar ASSISTANT CHAIRPERSON: Juanito Lim, Jr. SUBJECT HEADS: Aimee Roselle
Sabilala(Labor Standards), Elsa Villaflor(Labor Relations), Maria Fe Taal (Special Laws) EDP: Flora Sherry Basquiez
ASST. EDPS: Jennifer Trinidad, Ma. Jasmine Isip, Emil Bien Ongkiko, Kareen Faye Pioquinto

San Beda College of Law

12
MEMORY AID

INTRA-UNION DISPUTES refers to any


conflict between and among union
members, including grievances arising
from any violation of the rights and
conditions of membership, violation of or
disagreement over any provision of the
unions constitution and by-laws, or
disputes arising from chartering or
affiliation.
MED-ARBITER- an officer in the
regional office or bureau authorized to
hear,
conciliate,
and
decide
representation cases or assist in the
disposition of intra or inter-union
disputes.
COVERAGE
OF
INTER/INTRA-UNION
DISPUTES (Sec. 1 Rule XI DO 40-03)
a. cancellation of registration of a
labor organization filed by its
members or by any other labor
organization;
b. conduct of election of union and
workers
association
officers/nullification of election
of union and workers association
officers;
c. audit/accounts examination of
union or workers association
funds;
d. deregistration of CBA;
e. validity/invalidity
of
union
affiliation or disaffiliation;
f. validity/invalidity
of
acceptance/non-acceptance for
union membership;
g. validity/invalidity
of
impeachment/
expulsion
of
union and workers association
officers;
h. validity/invalidity of voluntary
recognition;
i. opposition to application for
union and CBA registration;
j. violations of or disagreements
over any provision in a union or
workers association constitution
and by-laws;
k. disagreements over chartering or
registration
of
labor
organizations and CBAs;
l. violations of the rights and
conditions of union or workers
association membership;

LABOR LAW COMMITTEE

IN

LABOR LAW

m. violations of the rights of


legitimate labor organizations,
except interpretation of CBAs;
n. such other disputes or conflicts
involving the rights to selforganization, union membership,
and collective bargaining
1. between and among
legitimate
labor
organizations
2. between and among
members of a union or
workers association
EXTENDED COVERAGE (Section 2 Rule XI
DO 40-03)
Other related labor relations
disputes shall include any conflict
between a labor organization 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
associations; and
2. a petition for interpleader
SPECIAL REQUIREMENTS AS TO THE
FILING OF CASES:
A. INVOLVING ENTIRE MEMBERSHIP
1.The complaint must be signed by
at least 30% of the entire
membership of the union and
2.It must also show exhaustion of
administrative remedies.
B. INVOLVING A MEMBER ONLY - In such
case only the affected member may
file the complaint.

Redress must first be sought


within the union itself in
accordance with its constitution
and by-laws EXCEPT under any
of the following circumstances:
a. futility of intra-union remedies
b. improper expulsion procedure
c. undue delay in appeal as to
constitute
substantial injustice
d. the action is for damages
e. lack of jurisdiction of the
investigating body

CHAIRPERSON: Francis Benedict Rotutar ASSISTANT CHAIRPERSON: Juanito Lim, Jr. SUBJECT HEADS: Aimee Roselle
Sabilala(Labor Standards), Elsa Villaflor(Labor Relations), Maria Fe Taal (Special Laws) EDP: Flora Sherry Basquiez
ASST. EDPS: Jennifer Trinidad, Ma. Jasmine Isip, Emil Bien Ongkiko, Kareen Faye Pioquinto

San Beda College of Law

13
MEMORY AID

f. action of the administrative


agency is
patently illegal,
arbitrary, and oppressive
g. issue is purely a question of law
h. where the administrative agency
had already
prejudged the
case
i. where the administrative agency
was
practically
given
the
opportunity to act on the case but it
did not.

Imposition of fees by the union


affects the entire membership,
therefore it requires that the
complaint should be signed by at
least 30% of the membership of
the union.

INTER-UNION DISPUTES -refers to any


conflict between and among legitimate
labor
organizations
involving
representation questions for purposes of
collective bargaining or to any other
conflict or dispute between legitimate
labor organizations based on any
violations of their rights as labor
organizations.

IN

LABOR LAW

memorandum of appeal
3. Based on either of
the following grounds:
a. Grave abuse of
discretion
b. Gross violation
of the Rules
4. With supporting
arguments and evidence
Within 10 days from
PERIOD
receipt of decision
1. Bureau of Labor
TO WHOM
Relationsif the case
APPEALABLE
originated from the Med
Arbiter/Regional
Director
2. Sec. Of Laborif the
case originated from the
Bureau
Regional Office or to the
WHERE FILED
BLR, where the
complaint originated
(records are transmitted
to the BLR or Sec.
1. For grounds
Sec. 1:
Withinunder
24 hours
from
WHO
a. receipt
any LLOof the
b. memorandum
member(s) thereof
of appeal)

specially concerned
2. For grounds under Sec. 2any
party-in-interest
1. Regional Office that issued its
WHERE
certificate of registration or
FILED
EFFECTS OF FILING/PENDENCY OF
certificate of creation of
INTER/INTRA-UNION
DISPUTE
AND
chartered local- If it involves labor
unions with independent
OTHER LABOR RELATIONS DISPUTES
registrations, chartered locals,
(Section 3 Rule XI DO 40-03)
workers association, its officers or
- The rights, relationships and obligations of
members
the parties litigants against each other and
2. Directly with the BureauIf it
other parties-in-interest prior to the
involves a Federation/National
institution of the petition shall continue to
Unions/Industry Unions, its
officers or members
remain during the pendency of the petition
1. in writing
and until the date of finality of the decision
FORMAL
2. verified under oath
rendered therein. Thereafter, the rights,
REQUIRE3. contains the following
relationships and obligations of the parties
MENTS
averments
litigants against each other and other partiesa. name, address and other
in-interest shall be governed by the decision
personal circumstances of the
so ordered.
complainant(s) or petitioner(s);
- The filing or pendency of any inter/intrab. name, address and other
union disputes is not a prejudicial question to
personal circumstances of the
respondent(s)
or
person(s)
any petition for certification election and
charged;
shall not be a ground for the dismissal of a
c. nature of the complaint or
petition for certification election or
petition;
suspension of proceedings for certification
d. facts and circumstances
election.
surrounding the complaint or
petition;
SUMMARY OF RULES ON INTRA/INTERe. cause(s) of action or specific
violation(s) committed;
UNION DISPUTES (Rule XI DO 40-03)
f. a statement that the
administrative remedies provided
MODES OF APPEAL IN INTRA/INTERfor in the constitution and by-laws
UNION DISPUTES (Rule XI DO 40-03)
-have been exhausted or
-such remedies are not
1. Under oath
HOW (formal
readily available to the
2. Consist of a
requirements)
complainant(s) or
petitioner(s) through no fault
of his/their own or
-compliance with such
administrative remedies does
LABOR LAW COMMITTEE
not apply
complainant(s)
CHAIRPERSON: Francis Benedict Rotutar ASSISTANT CHAIRPERSON: Juanito Lim, Jr. SUBJECT
HEADSto
: Aimee
Roselle or
Sabilala(Labor Standards), Elsa Villaflor(Labor Relations), Maria Fe Taal (Special Laws)
EDP: Flora Sherry Basquiez
petitioner(s);
ASST. EDPS: Jennifer Trinidad, Ma. Jasmine Isip, Emil Bien Ongkiko, Kareen Faye
g. Pioquinto
relief(s) prayed for;
h. certificate of non-forum
shopping; and
i. other relevant matters

San Beda College of Law

14
MEMORY AID

LABOR LAW

EMPLOYER-

Cannot be entered into when


the final judgment is already in
the
process
of
execution.
(Jesalva vs. Bautista)

Since the BLR has the original and


exclusive jurisdiction to decide,
inter alia, all disputes, grievances or
problems arising from or affecting
labor-management relations in all
workplaces, necessarily, in the
exercise of this jurisdiction over
labor-management relations, the
Med-Arbiter has the authority,
original
and
exclusive,
to
determine the existence of an
employer-employee
relationship.
(MY San Biscuits, Inc. vs. Laguesma
G.R. No. 9511, 22 April 1991)

FORMAL REQUIREMENTS OF A VALID


COMPROMISE AGREEMENT:
1. in writing
2. signed in the presence of the regional
director
or
his
duly
authorized
representative.

DETERMINATION OF
EMPLOYEE RELATIONSHIP:
-

IN

In cases where there is


overlapping
of
jurisdiction,
determine the principal issue.
The agency that has jurisdiction
thereon may decide on the
incidental issues.

ADMINISTRATIVE FUNCTIONS OF THE


BLR:
1.
The
REGULATION
OF
REGISTRATION of the labor unions;
2.
The KEEPING OF A REGISTRY of
labor unions;
3.
The maintenance of a FILE OF
CBAS. ART. 227.
COMPROMISE
AGREEMENTS; and
4.
The maintenance of a file of all
settlements or final decisions of the
Supreme Court, Court of Appeals,
NLRC and other agencies on labor
disputes.
REQUIREMENTS:
a. must be freely entered into;
b. must not be contrary to law, morals
or public policy; and
c. must be approved by the authority
before whom the case is pending [see
discussion on article 221approval of
labor
arbiter
of
an
amicable
settlement in a case before him.
May be effected at any stage
of the proceedings and even
when there is already a final
executory judgment (2040 NCC).

LABOR LAW COMMITTEE

WITH vs. WITHOUT ASSISTANCE OF


DOLE-COMPROMISE AGREEMENTS
Without assistance
With the
of DOLE
assistance of
DOLE
a.
VALIDITY/BINDING
EFFECT
- Valid and binding - Valid and binding
upon the parties
upon the parties
b. REPUDIATION
Can
be - Can no longer be
repudiated by the repudiated
parties by going to becomes final and
the Commission
binding upon the
parties upon
NOTE: ULP cases execution EXCEPT
are not subject to
a. in case of non
compromise.
compliance
with the
compromise
agreement;
or
if there is
prima facie
evidence that the
settlement was
obtained through
fraud,
misrepresentation,
or coercion
OPTIONS
WHEN
COMPROMISE
AGREEMENT IS VIOLATED:
1. enforce compromise by writ of
execution
2. regard it as rescinded and insist upon
original demand.

CHAIRPERSON: Francis Benedict Rotutar ASSISTANT CHAIRPERSON: Juanito Lim, Jr. SUBJECT HEADS: Aimee Roselle
Sabilala(Labor Standards), Elsa Villaflor(Labor Relations), Maria Fe Taal (Special Laws) EDP: Flora Sherry Basquiez
ASST. EDPS: Jennifer Trinidad, Ma. Jasmine Isip, Emil Bien Ongkiko, Kareen Faye Pioquinto

San Beda College of Law

15
MEMORY AID

REQUIREMENTS
QUITCLAIM:

OF

VALID

1. The quitclaim must be VOLUNTARILY


ARRIVED at by the parties;
2. It must be WITH THE ASSISTANCE of
the Bureau of Labor Standards,
Bureau of Labor Relations or any
representative of the DOLE; and
3. The CONSIDERATION MUST BE
REASONABLE (required only when
entered without the assistance of
DOLE)

Dire necessity is not an


acceptable ground for annulling
the releases, especially in the
absence of proof that the
employees were forced to
execute them. (Veloso vs. DOLE)

WAIVER OF REINSTATEMENT like


waivers of money claims, a waiver of
reinstatement must be regarded as a
personal right which must be
exercised personally by the workers
themselves. (Jag & Haggar Jeans and
Sportswear Corp. vs. NLRC)

ART 231. REGISTRY OF UNIONS


AND
FILE
OF
COLLECTIVE
AGREEMENT

The CBA is more than a contract,


it is highly impressed with public
interest for it is an essential
instrument to promote industrial
peace.
Must be filed directly with the
Bureau or the Regional Offices of
DOLE within thirty (30) days
from execution.
An UNREGISTERED CBA does not
bar
certification
election
[contract bar rule will not apply
in the absence of registration.
[See discussion on Arts. 253 &
253-A]

Registration of the CBA is not a


requisite for its validity.

IN

LABOR LAW

The certification of the CBA by the BLR


is not required to put a stamp of validity
to such contract. Once it is duly entered
into and signed by the parties, a CBA
becomes effective as between the
parties regardless of whether or not the
same has been certified by the BLR.

ART 232. PROHIBITION


CERTIFICATION ELECTION

ON

CONTRACT BAR RULE: provides that


while a valid and registered CBA is
subsisting for a fixed period of 5 years ,
the Bureau is not allowed to hold an
election contesting the majority status
of the incumbent union except during
the sixty (60) day period immediately
prior to its expiration, which period is
called the freedom period.
The existence of the CBA bars the
holding of an inter-union electoral
contest and the filing of the Petition for
Certification Election except within the
freedom period.
PURPOSE:
politicking
comes.

to
until

minimize
union
the proper time

ART
233.
COMMUNICATION

PRIVILEGED

PRIVILEGED
COMMUNICATION:
Any
statement of such privacy that the law
exempts the person receiving the
information from the duty to disclose it.
Information and statements made at
conciliation proceedings shall be treated
as privileged communication and shall
not be used as evidence in the
Commission.

Conciliators and similar officials


may not testify in any court or
body regarding any matters
taken
up
at
conciliation
proceedings conducted by them.

LIBERTY FLOUR MILLS EMPLOYEES v.


LFM, INC. 180 SCRA 668

LABOR LAW COMMITTEE

CHAIRPERSON: Francis Benedict Rotutar ASSISTANT CHAIRPERSON: Juanito Lim, Jr. SUBJECT HEADS: Aimee Roselle
Sabilala(Labor Standards), Elsa Villaflor(Labor Relations), Maria Fe Taal (Special Laws) EDP: Flora Sherry Basquiez
ASST. EDPS: Jennifer Trinidad, Ma. Jasmine Isip, Emil Bien Ongkiko, Kareen Faye Pioquinto

San Beda College of Law

16
MEMORY AID

IN

LABOR LAW

PURPOSE OF FORMATION OF LABOR


UNIONS: for securing a fair and just
wages and good working conditions for
the laborers; and for the protection of
labor against the unjust exactions of
capital

TITLE IV
LABOR ORGANIZATIONS
CHAPTER I
REGISTRATION AND CANCELLATION

ART. 234. REQUIREMENTS OF


REGISTRATION
LABOR ORGANIZATION - Any union or
association of employees which exists in
whole or in part for the purpose of:
a. collective bargaining or
b. of dealing with employer
concerning terms and conditions of
employment.
It is the agent of the
employees of an appropriate
bargaining unit.

MODES OF ACQUIRING LEGITIMACY FOR


LABOR ORGANIZATIONS
1. Registration with the BLR
(Independent Union)
2. Affiliation with a legitimate labor
federation
[REGISTRATION REQUIREMENTS FOR
LABOR ORGANIZATIONS (as amended by
DO 40-03)]
3.
Application for registration
4.
Attachments
name of the applicant labor
union, its principal address;
the name of its officers and their
respective addresses;
o

approximate
number
of
employees in the bargaining
unit where it seeks to
operate, with a statement
that it is not reported as a
chartered local of any
federation or national union;

the
minutes
of
the
organizational
meeting(s)
and the list of employees
who participated in the said
meeting(s);

the name of all its members


comprising at least 20% of
the
employees
in
the
bargaining unit;

the annual financial reports


if the applicant has been in
existence for one or more
years, unless it has not
collected any amount from
the members, in which case
a statement to this effect
shall be included in the
application;

PRINCIPLE OF AGENCY APPLIED


Principal employees
Agent local/chapter
Agent of agent federation
LEGITIMATE LABOR ORGANIZATION or
LABOR UNION
any labor organization duly registered
with the Department of Labor and
Employment, and Bureau of Labor
Relations.

Not every legitimate labor


organization
can
act
as
bargaining representative and be
certified as such. This is true
only of a union that has won in
certification election or has been
voluntarily recognized by the
employer.

LABOR LAW COMMITTEE

CHAIRPERSON: Francis Benedict Rotutar ASSISTANT CHAIRPERSON: Juanito Lim, Jr. SUBJECT HEADS: Aimee Roselle
Sabilala(Labor Standards), Elsa Villaflor(Labor Relations), Maria Fe Taal (Special Laws) EDP: Flora Sherry Basquiez
ASST. EDPS: Jennifer Trinidad, Ma. Jasmine Isip, Emil Bien Ongkiko, Kareen Faye Pioquinto

San Beda College of Law

17
MEMORY AID

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
ratifying members shall be
dispensed with where the
constitution and by-laws was
ratified or adopted during
the organizational meeting.
In such a case, the factual
circumstances
of
the
ratification shall be recorded
in the minutes of the
organizational meeting(s).
(These
are
called
reportorial
requirements)
o

The application for registration of


labor unions xxx, shall be certified under
oath by its Secretary or Treasurer, as the
case may be, and attested by its
president.
The attachments must now be in
one(1) original copy and two (2)
duplicate copies which shall accompany
the application or notice, and submitted
to the Regional Office or the Bureau.

file

application

- After a labor organization had filed the


necessary papers and documents for
registration, it becomes mandatory for
the BLR to check if the requirements
under Article 234 have been sedulously
complied with. If its application for
registration is vitiated by falsification
and serious irregularities, especially
those appearing on the face of the
application
and
the
supporting
documents, a labor organization should
be denied recognition as a legitimate
labor
organization.
(Progressive
Development Corporation-Pizza Hut vs.
Laguesma et al., GR No. 115077, April
18, 1997)

PURPOSE OF REGISTRATION Registration with the BLR is the


operative act that gives rights to a labor
organization.

for

1. For registration of independent labor


unions, chartered locals, workers
associations shall be filed with the
Regional office where the applicant
principally operates. It shall be
processed by the Labor Relations Division
at the Regional office.
2. Applications for registration of
federations, national unions or workers
associations operating in more than one
region shall be filed with the bureau or
the regional offices, but shall be
processed by the bureau.

LABOR LAW COMMITTEE

LABOR LAW

MINISTERIAL DUTY OF THE BLR


COMPELLABLE BY MANDAMUS- to review
the application for registration and not
the issuance of a Certificate of
Registration.

A prescribed registration fee must be


paid before the issuance of the
certificate of registration
Where
to
registration:

IN

It is the fact of being registered


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

CHAIRPERSON: Francis Benedict Rotutar ASSISTANT CHAIRPERSON: Juanito Lim, Jr. SUBJECT HEADS: Aimee Roselle
Sabilala(Labor Standards), Elsa Villaflor(Labor Relations), Maria Fe Taal (Special Laws) EDP: Flora Sherry Basquiez
ASST. EDPS: Jennifer Trinidad, Ma. Jasmine Isip, Emil Bien Ongkiko, Kareen Faye Pioquinto

San Beda College of Law

18
MEMORY AID

FEDERATION- any labor organization


with at least 10 locals/chapters or
affiliates each of which must be duly
certified or recognized as the sole and
exclusive collective bargaining agent of
the employer they represent.

REQUIREMENTS
BEFORE
FEDERATION
CAN
BE ISSUED
CERTIFICATE OF REGISTRATION:

A
A

Aside from the application, which


must
be
accompanied with the
requirements for registration of a labor
registration, the application should also
be accompanied by the following:
1. Proof of affiliation of at least 10
locals or chapters, each of which
must be a duly recognized sole and
exclusive collective bargaining agent
in the establishment or industry in
which it operates, supporting the
registration
of
such
applicant
federation or national union;
2. The names and addresses of the
companies where the locals or
chapters operate and the list of all
the members in each company
involved.

is the
agent.

IN

LABOR LAW

incumbent

bargaining

A union of supervisory employees may


affiliate with a national federation of
labor organizations of rank and file
employees PROVIDED that:
a. the federation is not actively
involved in union affairs in the
company; and
b. the rank and file employees are not
directly under the control of the
supervisors

ONCE AFFILIATED, A LOCAL


UNION MAY DISAFFILIATE FROM THE
FEDERATION.

A LOCAL UNION MAY AFFILIATE WITH A


FEDERATION - The procedure of
affiliation would depend on whether the
union is independently registered or not.
REQUIREMENTS OF AFFILIATION (as
amended by DO 40-03)
1. Report of affiliation of independently
registered labor union
2. Attachments:
a. resolution of the labor unions
board of directors approving the
affiliation;
b. minutes
of
the
general
membership meeting approving
the affiliation;
c. the total number of members
comprising the labor union and
the names of members who
approved the affiliation;
d. the certificate of affiliation
issued by the federation in favor
of the independently registered
labor union; and
e. written notice to the employer
concerned if the affiliating union

LABOR LAW COMMITTEE

CHAIRPERSON: Francis Benedict Rotutar ASSISTANT CHAIRPERSON: Juanito Lim, Jr. SUBJECT HEADS: Aimee Roselle
Sabilala(Labor Standards), Elsa Villaflor(Labor Relations), Maria Fe Taal (Special Laws) EDP: Flora Sherry Basquiez
ASST. EDPS: Jennifer Trinidad, Ma. Jasmine Isip, Emil Bien Ongkiko, Kareen Faye Pioquinto

San Beda College of Law

19
MEMORY AID

INDEPENDENT
REGISTRATION

INDEPENDENTLY
CHARTERING

IN

LABOR LAW

UNREGISTERED

REGISTERED

Obtained TO -byA signingduly


a contract
a.HOW
by union
registered
affiliation
AFFILIATE
organizers
federation/na
in
an
tional union
enterprise
issues
a
through
charter to a
their own
union in an
action
enterprise
and registers
the
charter
with
the
regional
office or the
BIR.

of

-by application of the union


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

b.EFFECT
OF
With legal
DISAFFILIATION
personalit
TO THE
y UNION
of its
[local]
own

affect its being a


- would
No notlegal
legitimate
labor
personality of organization
and
therefore
it
would
its own as
continue
to
have
legal
long as itand
has to possess all
personality
thenot
rightsavailed
and privileges of a
itself labor
of organization.
legitimate
independent
registration.

Applicatio
n
for
registratio
n is filed
with and
will
be
acted
upon by
the DOLE
c. EFFECT
OF
regional
DISAFFILIATION
office
TO THE
CBAthe
where
applicant
s principal
office is
located.

upon severance, it would


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

Independent
union

Chapter/local

Charter
certificate is
issued by a
federation or
national
union is filed
with
the
regional
office or BLR
- with
an existing
30 days CBA would
continue to be valid as the
after
the
labor
organization
can
issuance
of
continue administering
the
charter
CBAthe
certificate.

LABOR LAW COMMITTEE

The CBA would continue to be


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

CHAIRPERSON: Francis Benedict Rotutar ASSISTANT CHAIRPERSON: Juanito Lim, Jr. SUBJECT HEADS: Aimee Roselle
Sabilala(Labor Standards), Elsa Villaflor(Labor Relations), Maria Fe Taal (Special Laws) EDP: Flora Sherry Basquiez
ASST. EDPS: Jennifer Trinidad, Ma. Jasmine Isip, Emil Bien Ongkiko, Kareen Faye Pioquinto

San Beda College of Law

20
MEMORY AID

d. ENTITLEMENT
TO UNION DUES
AFTER
DISAFFILIATION

-labor organization is entitled


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

LABOR LAW COMMITTEE

IN

LABOR LAW

- union dues may no longer


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

CHAIRPERSON: Francis Benedict Rotutar ASSISTANT CHAIRPERSON: Juanito Lim, Jr. SUBJECT HEADS: Aimee Roselle
Sabilala(Labor Standards), Elsa Villaflor(Labor Relations), Maria Fe Taal (Special Laws) EDP: Flora Sherry Basquiez
ASST. EDPS: Jennifer Trinidad, Ma. Jasmine Isip, Emil Bien Ongkiko, Kareen Faye Pioquinto

WHEN TO DISAFFILIATE
GENERAL RULE: A labor union may disaffiliate from the mother union to form an independent
union only during the 60-day freedom period immediately preceding the expiration of the
CBA.
EXCEPTION: DISAFFILIATION BY MAJORITY

This happens when there is a substantial shift in allegiance on the part of the majority
of the members of the union. In such a case, however, the CBA continues to bind the
members of the new or disaffiliated and independent union up to the CBAs expiration
date.

LIMITATION: disaffiliation should be in accordance with the rules and procedures stated in the
Constitution and by-laws of the federation.

A prohibition to disaffiliate in the Federations constitution or by-laws is valid


intended for its own protection.

REVOCATION OF CHARTER BY THE FEDERATION - by serving the local/chapter a verified


notice of revocation, copy furnished the Bureau on the ground of disloyalty or such other
grounds as may be specified in its constitution or by-laws.

The revocation shall divest the local chapter of its legal personality upon receipt of the
notice by the Bureau, unless in the meantime the local chapter has acquired
independent registration. (Rule VIII Section 5 of the IRR)

WORKERS ASSOCIATION: Association of workers for the mutual aid and protection of its
members or for any legitimate purpose other than collective bargaining.
ART. 236. DENIAL OF REGISTRATION; APPEAL
- Decisions of the BLR denying the registration of a labor organization is appealable to the
Secretary of Labor within 10 calendar days from receipt of the decision, on grounds of:

a. grave abuse of discretion; or


b. gross incompetence
even before the onset of the freedom period, disaffiliation may still be carried out, but
such disaffiliation must be effected by a majority of the union members in the bargaining
unit.

decision of the regional office or the bureau denying the application for registration shall be:
1. in writing
2. stating in clear terms the reason for the decision
3. applicant union must be furnished a copy of said decision
ART. 238. CANCELLATION OF REGISTRATION; APPEAL
The certificate of registration of any legitimate labor organization shall be cancelled by
the BLR if it has reason to believe, after due hearing, that the said labor organization no
longer meets one or more of the requirements prescribed by law.
GROUNDS FOR CANCELLATION:

1. Failure to comply with any of the requirements prescribed under Arts. 234
(requirements for registration of a labor union) & 237 (addl. reqts. federation
registration) of the Code.
2. Violation of any of the provisions of Art. 239 (grounds for cancellation of union
registration) of the Code
3. Commission of any of the acts enumerated under Art. 241 (rights and conditions of
membership) of the code- No petition for cancellation based on this ground 0may be
granted unless supported by at least 30% of all the members of the respondent labor
organization or workers association.

A pronouncement as to the illegality of the strike is not within the meaning of


Art. 239 of the Code which provides for the grounds for cancellation of union
registration.

MODES OF APPEAL
DENIAL or CANCELLATION BY:
A. Regional Office
transmit records within 24
hours from receipt of Memo of
Appeal
BUREAU decides within 20
days from receipt of records
SUPREME COURT- Rule 65
B. Bureau
transmit records within 24
hours from receipt of memo
of appeal
SEC. OF DOLE decides within
20 days from receipt of
records
SUPREME COURT- Rule 65
*Appeal by memo of appeal
within 10 days from receipt of
notice.
GROUNDS:
1. Grave abuse of discretion
2. Violation of rules as
amended.

EFFECT OF CANCELLATION OF REGISTRATION IN THE COURSE OF PROCEEDINGS


- Where a labor union is a party in a proceeding and later it loses its registration permit
in the course or during the pendency of the case, such union may continue as a party without
need of substitution of parties, subject however to the understanding that whatever decision
may be rendered therein will be binding only upon those members of the union who have not
signified their desire to withdraw from the case before its trial and decision on the merits.
[Principle of Agency appliedthe employees are the principals, and the labor organization is
merely an agent of the former, consequently, the cancellation of the unions registration,
would not deprive the consenting member-employees of their right to continue the case as
they are the considered as the principals]
ART 239. GROUNDS FOR CANCELLATION OF UNION REGISTRATION
GROUNDS FOR CANCELLATION OF UNION REGISTRATION:
A. FRAUDULENT ACTS
1. Misrepresentation, False statement or Fraud in connection with [RATIFICATION OF
CONSTI/BY-LAWS]:
a. the ADOPTION OR RATIFICATION of the constitution and by-laws or amendments
thereto,
b. the MINUTES of ratification, and
c. the LIST OF MEMBERS who took part in the ratification.
2. Misrepresentation, false statement or fraud in connection with the [ELECTION PAPERS]:
a. ELECTION of officers,
b. MINUTES of the election of officer and the list of voters, or
c. failure to submit these documents together with the list of the
elected/appointed officers and their postal addresses within 30 days from election

newly

B. INACTION OR OMISSION
1. Failure to submit the following documents
[RATIFICATION OF CONSTI/BY-LAWS]:
a. the adoption or ratification of
the constitution and by-laws or
amendments thereto,
b. the minutes of ratification, and
the list of members who took part in the ratification
*Within 30 days from adoption or ratification of
the constitution and by-laws or
amendments thereto.
2. Failure to submit the Annual Financial report to the Bureau within 30 days after the closing
of every fiscal year and misrepresentation, false entries and fraud in the preparation of the
financial report itself;
3. Failure to submit a LIST OF INDIVIDUAL MEMBERS of the Bureau once a year or whenever
required by the Bureau; and
4. Failure to comply with the REQUIREMENTS UNDER ARTICLES 237.
C. UNLAWFUL ACTS
1. Acting as a labor contractor or engaging in the CABO SYSTEM, or otherwise engaging in
any activity prohibited by law;

2. Entering into collective bargaining agreements which provide terms and conditions of
employment below minimum standard established by law [CBA-BELOW MINIMUM
STANDARDS]; (Sweetheart Agreements)
3. Asking for or ACCEPTING ATTORNEYS FEES OR NEGOTIATION FEES from the employers;
4. Other than for mandatory activities under this Code, checking off special assessment or any
other fees without duly signed individual written authorization of the members
[UNLAWFUL ASSESSMENTS];
CANCELLATION OF REGISTRATION
A. FOR:
1. Legitimate individual labor
union.
B. 2.
FOR:
Chartered local
1. 3.
Federations
Workers association
2. National or Industry unions
3. Trade union centers
WHERE TO FILE
Regional Director who has
WHERE TO FILE
jurisdiction over the place
- where
Bureaurespondent
Director ( 30principally
days to
decide)
operates (30 days to decide).
WHOWHO
MAYMAY
FILEFILE
Only
the
members
- Any party in
interest,ofifthe
ground
Labor
Organization
concerned
is:
if grounds
are actions
a. Failure
to comply
with any of
involving
violations
of Art.
the requirements under
Arts.
241,
subject
to
the
234, 237 and 238 LC 39% rule
b. Violation of any provision under
Art. 239, LC
Take note of the cancellation
proceedings if violation is D and
J of Art. 239, LC
REPORTING REQUIREMENTS OF LABOR UNIONS AND WORKERS ASSOCIATIONS (Rule V DO 4003)
- It shall be the duty of every legitimate labor union and workers association to submit to the
Regional Office or Bureau which issued its certificate of registration or certificate of creation
of chartered local, as the case may be, two (2) copies of each of the following documents:
a. any amendment to its constitution and by-laws and the minutes of adoption or
ratification of such amendments, within 30 days from its adoption or ratification;
b. annual financial reports within 30 days after the close of each fiscal or calendar year;
c. updated list of newly-elected officers, together with the appointive offices or agents
who are entrusted with the handling of funds, within 30 days after each regular or
special election of officers, or from the occurrence of any change in the officers of
agents of the labor organization or workers association
d. updated list of individual members of chartered locals, independent unions and
workers associations within 30 days after the close of each fiscal year; and
e. updated list of its chartered locals and affiliates or member organizations, CBAs
executed and their effectivity period, in the case of federations or national unions,
within 30 days after the close of each fiscal year, as well as the updated list of their
authorized representatives, agents or signatories in the different regions of the
country.
RULES ON ADMINISTRATIVE CANCELLATION OF CERTIFICATE OF REGISTRATION OF LLOs DUE
TO NON-COMPLIANCE WITH THE REPORTORIAL REQUIREMENTS:

WHEN
PROPER

Failure to comply with its


legal duty to submit the
documents required to
be submitted under Rule
V of DO 40-03 for 5
consecutive years

WHO MAY
FILE THE
PETITION

1. Motu propio by the


Bureau
2. Any party-in-interest

THREENOTICE
REQUIRE
MENT

1st Notice
Bureau
shall
send
by
registered mail with return
card notice for compliance
indicating the documents it
failed to submit and the
corresponding period in
which they were required,
with notice to comply with
the
said
reportorial
requirements and to submit
proof thereof to the Bureau
within 10 days from receipt
thereof
2nd Notice
Where no response is
received by the Bureau
within 30 days from the
release of the 1st notice,
another
notice
for
compliance shall be made
by the Bureau, with warning
that failure on its part to
comply with the reportorial
requirements within the
time specified shall cause
the continuation of the
proceedings
for
the
administrative cancellation
of its registration
3rd Notice
Where no response is again
received by the Bureau
within 30 days from release
of the 2nd notice, the Bureau
shall cause the publication
of the notice of cancellation
of registration of the labor
organization
in
2
newspapers
of
general
circulation.
When
no
response
is
received by the Bureau
within 30 days from the
date of publication or when
the Bureau has verified the
dissolution of the labor
organization, it shall order

the
cancellation
of
registration of the labor
organization AND cause its
de-listing from the roster of
legitimate
labor
organizations

CHAPTER II
RIGHTS AND CONDITIONS OF MEMBERSHIP IN A LABOR ORGANIZATION
ART. 241. RIGHTS AND CONDITIONS OF MEMBERSHIP IN A LABOR ORGANIZATION
GENERAL GROUPINGS OF THE RIGHTS OF THE UNION MEMBERS:
1. Political right - the right to vote and be voted for, subject to lawful provisions on
qualifications and disqualifications.
2. Deliberative and Decision-Making Right - the right to participate in deliberations on major
policy questions and decide them by secret ballot.
3. Rights Over Money Matters - the right of the members:
a.
b.
c.
d.
e.
f.
g.

against imposition of excessive fees;


right against unauthorized collection of contributions or unauthorized disbursements;
to require adequate records of income and expenses;
to access financial records;
to vote on officers compensation;
to vote on special assessment;
to be deducted a special assessment only with the members written authorization.

4. Right to Information - the right to be informed about:


a. the organizations constitution and by- laws,
b. the collective bargaining agreement, and labor laws.

Any violation of the above rights and conditions of membership shall be a ground for
cancellation of union registration or expulsion of an officer from office, whichever is
appropriate. At least 30% of all the members of the union or any member or members
specifically concerned may report such violation to the Bureau.

PERSONS WHO ARE PROHIBITED FROM BECOMING MEMBERS/OFFICERS OF A LABOR


ORGANIZATION UNDER THE LABOR CODE (see also notes under Art. 243 on persons who are
not granted the right to self-organization):
1. Subversives or those engaged in subversive
activities [Art.241 (e)]
2. Persons who have been convicted of a crime involving moral turpitude shall not be eligible
for election as union officer or for appointment to any position in the union. [Art. 241 (f)]

In general, a union is free to select its own members, and no person has an absolute
right to membership in a union.

LIMITATIONS [see discussion on union security arrangements under Art. 248]:

a. The labor org. cannot compel employees to become members of their labor organization if
they are
already member of rival union.
b. persons mentioned in Art. 241(e) [subversives] of the labor code are prohibited from
becoming a member a labor organization.
c.

members of religious organization whose religion forbade membership in labor


organization could not be compelled into union membership.

REQUIREMENTS IN MAKING SPECIAL ASSESSMENTS or OTHER EXTRAORDINARY FEES (Art.


241 [n]):
1.
2.

there must be a WRITTEN RESOLUTION


he resolution must have BEEN APPROVED BY A MAJORITY of all the members

3.
the approval must be AT A GENERAL MEMBERSHIP MEETING DULY called for that
purpose

a.
b.
c.

The secretary of the organization shall record the minutes of the meeting including:
the list of all members present,
the votes cast, and
the purpose of the assessment or

fees

The record shall be attested by the President.

Substantial compliance to the aforementioned procedure is not enoughthe


requirements must be strictly complied with in view of the fact that the special
assessment will diminish the compensation of union members. (Palacol et. al vs.
Ferrer-Calleja et. al)

CHECK-OFF - a method of deducting from an employees pay at prescribed period, the


amounts due to the union for fees, fines or assessments.
NATURE AND PURPOSE OF CHECK-OFF:
to facilitate the collection of dues necessary for the unions life and sustenance.

Union dues are the lifeblood of the union.

REQUIREMENTS WITH REGARD TO CHECK-OFFS (Art. 241 [o]):


- NO special assessment, attorneys fees, registration fees or any other extraordinary fees may
be checked off from any amount due an employee WITHOUT an individual written
authorization duly signed by the employee.
The authorization should specifically state the:
a. amount
b. purpose and the beneficiary of the deduction.
Jurisdiction over check-off disputes is with the Regional Director of the DOLE, not the Labor
Arbiter

UNION DUES VS. AGENCY FEE


UNION DUES
AGENCY FEE
a. DEDUCTED FROM
- members of a
union
for
the
payment of union
dues.
b. CONSENT
May
not
be
deducted from the
salaries of the union
members
without
the written consent
of
the
workers
affected

- non-members of the
bargaining
agent
(union)
for
the
enjoyment of the
benefits under the
CBA.
- May be deducted
from the salary of
employees
without
their consent.

Agency fee cannot be imposed on employees already in the service and are members of
another union. If a closed shop agreement cannot be applied to them, neither may an agency
fee, as a lesser form of union security, be imposed to them. (NABAILU vs. San Miguel Brewery
Inc)
EXCEPTION TO THE REQUIREMENT OF INDIVIDUAL WRITTEN AUTHORIZATION:
1.For mandatory activities provided under the Code; and
2.When non-members of the union avail of the benefits of the CBA.
- said non-members may be assessed union dues equivalent to that paid by members
- only by a Board Resolution approved by majority of the members in a general meeting
called for the purpose
Will the employees-members of another union not be considered as free riders?
No since when the union bids to be the bargaining agent, it voluntarily assumes the
responsibility of representing all employees in the appropriate bargaining unit.
SPECIAL ASSESSMENT vs. CHECK-OFF
SPECIAL
ASSESSMENTS

CHECK-OFF

a. HOW APPROVED
-by written resolution
approved by majority
of all the members at
a meeting duly called
for that purpose

b.
EXCEPTION TO
SUCH REQUIREMENT
-no exceptionwritten
resolution
is
mandatory
at
all
instances.

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

CHAPTER III
RIGHTS OF LEGITIMATE LABOR ORGANIZATIONS
ART. 242. RIGHTS OF LEGITIMATE LABOR ORGANIZATIONS
RIGHTS OF A LEGITIMATE LABOR ORGANIZATION [USERFOE]:
1.Undertake activities for benefit of members
2.Sue and be sued
3.Exclusive representative of all employees
4.Represent union members
5.Furnished by employers of audited financial statements
6.Own properties
7.Exempted from taxes

TITLE V
COVERAGE
ART. 243. COVERAGE AND EMPLOYEES RIGHT TO SELFORGANIZATION
PERSONS/EMPLOYEES ELIGIBLE TO JOIN A LABOR ORGANIZATION FOR PURPOSES OF
COLLECTIVE BARGAINING:
1. All persons employed in commercial, industrial and agricultural (CIA) enterprises, and

2. In religious, charitable, medical or educational (RCME) institutions whether operating for


profit or not
PERSONS/EMPLOYEES ELIGIBLE TO JOIN A LABOR ORGANIZATION FOR MUTUAL AID AND
PROTECTION (AIRSIW):
1. Ambulant,
2. Intermittent,
3. Rural,
4. Self-employed people
5. Itinerant workers and
6. Workers without any definite employers,
PERSONS/EMPLOYEES WHO ARE NOT GRANTED THE RIGHT TO SELF-ORGANIZATION:
(HEMACEN)
1. High-level government employees (E.O. 180 Sec. 3) (MANAGERIAL GOVERNMENT
EMPLOYEES)
GOVERNMENT
OWNED OR
CONTROLLED
CORPORATIONS WITH
AN ORIGINAL
CHARTER
a. LAW
- Employees cannot stage
strikes since they are
governed by the Civil
Service Law. They are
enjoined by Civil Service
Memorandum
Circular
No. 6, under pain of
administrative sanctions
from
staging
strikes,
demonstrations,
mass
leaves, walkouts and
other
concerted
activities.
b. BARGAINING RIGHTS
- Corporations with
original charters
cannot bargain with
the government
concerning the terms
and conditions of
their employment.
However, they can
negotiate with the
government on those
terms and conditions
of employment which
are not fixed by law.
Thus, they have
limited bargaining
rights.
c.PURPOSE OF
ORGANIZATION
- Can only form, join or
assist labor organization
for purposes not contrary
to law.

GOVERNMENT
OWNED OR
CONTROLLED
CORPORATIONS
WITHOUT
ORIGINAL
CHARTER
- The GOCC is
created under
Corporation Code,
then employees are
covered by the Labor
Code.
Therefore
the employees have
the same rights as
those as employees
of private
corporations, one of
which is the right to
strike.
- The GOCC is
created under
Corporation Code,
being governed by the
Labor Code, they can
bargain with the
government
concerning the terms
and
conditions of
their employment.
Thus, they have
unlimited bargaining
rights.

- Can form, join or


assist labor
organization for
purposes of CBA, etc.

2. Employees of international organizations


with immunities (ICMC vs. Calleja)
3. Managerial employees
whose
functions
are
normally
considered
as
policy-making
or
managerial
whose duties are of a highly
confidential or highly technical in
nature (212 LC)
4. Members of the Armed Forces of the
Philippines, including police officers,
policemen, firemen and jail guards (E.O.
180 Sec. 4);
5. Confidential
Confesor)

employees

(Metrolab

vs.

6. Employees of cooperatives who are


members (Benguet Elec. Coop. vs Calleja)
7. Non-Employees (Rosario Bros. vs Ople)
Foreigners validly working in the Philippines
[with permit from DOLE] can form labor
organizations, provided the same right to
form, join or assist in the formation of labor
unions is also given to Filipinos in their country
of origin. This embodies the principle of
reciprocity.
MAY SECURITY GUARDS FORM A LABOR
ORGANIZATION?
YES. 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. (Meralco vs. Secretary of Labor)

EXTENT OF THE RIGHT TO SELF-ORGANIZATION


1. To form, join and assist labor organizations for the purpose of collective bargaining through
representatives of their own choosing and
2. To engage in lawful concerted activities for the same purpose- for their mutual aid and
protection.
ART. 244. RIGHTS OF EMPLOYEES IN THE PUBLIC SERVICE

THE FOLLOWING ARE CONSIDERED NEGOTIABLE IN GOCCs WITH ORIGINAL CHARTER:


1.
schedule of vacation and other leaves
2.
work assignment of pregnant women
3.
personnel growth and development
4.
communication system lateral and vertical
5.
provision for protection and safely
6.
provision for facilities for handicapped personnel
7.
provision for first-aid medical services for married women
8.
annual medical/physical examination
9.
recreational, social, athletic and cultural activities and facilities (Rules implementing
WO 180)
THE FOLLOWING ARE CONSIDERED NOT NEGOTIABLE:
1. Those which require appropriation of funds, such as:
a. increase in salary emoluments and other allowance not presently provided for by
law
b. facilities requiring capital outlays
c. car plan
d. provident fund
e. special hospitalization, medical and dental services
f. rice/sugar/other subsidies
g. travel expenses
h. increase in retirement benefits
2. Those that involve the exercise of management prerogatives, such as:

a. appointments
b. promotion
c. assignments/details
d. reclassification/upgrading of position
e. revision of compensation structure
f. penalties imposed as a result of
disciplinary actions
g. selection of personnel to attend seminar, trainings, study grants
h. distribution of work load
i. external communication linkages
Government employees and employees of government-owned and controlled
corporations with original charters may bargain, however, such bargaining power is
limited.

NOTE:

The Public Sector Labor Management Council (PSLMC), created by E.O. 180 has
jurisdiction to hear charges of ULP filed by government employees against their employer.
REASONS WHY EMPLOYEES IN GOCCs INCORPORATED UNDER THE CORPORATION CODE ARE
ALLOWED TO ORGANIZE:

1. they are not involved in public service


2. terms of employment are not fixed by law
3. they are governed by the provisions of the Labor Code not by the Civil Service Law

ART. 245. INELIGIBILITY OF MANAGERIAL EMPLOYEES


ORGANIZATION; RIGHT OF SUPERVISORY EMPLOYEES.

TO

JOIN

ANY

LABOR

MANAGERIAL EMPLOYEE - one who is vested with powers or prerogatives to lay down and
execute management policies and /or to hire, transfer, suspend, lay-off, recall, discharge,
assign or discipline employees.
MANAGERIAL EE UNDER LS AND LR
Managerial
Managerial
Employees under
Employees
Labor Standards
under Labor
Relations
a. POWERS/DUTIES
- primary duty consists - See definition
of the management of above
the establishment in
which
they
are
employed or of a
department
or
subdivision
- does not include
b. EXTENT
- includes the officers the managerial
and members of the staff since they are
classified as
managerial staff

c. PURPOSE OF
DEFINITION

- to determine w/n
certain employees are
covered by Book III of
the LC on Conditions of

supervisory
employees [who
may/may not be
eligible to join a
labor union with
the rank and file
employees]
- to determine an
employees
eligibility
in
joining/forming a
labor union.

Employment.

Reason for ineligibility in the collective bargaining process, managerial employees are the
alter ego of the employers and thus they are supposed to be on the side of the employer to
act as its representatives, and to see to it that its interests are well protected. The employer
is not assured of such protection if these employees are union members.
In the same manner, the labor union might not be assured of their loyalty to the union
in view of the evident conflict of interest.
The union can also become company-dominated with the presence of managerial
employees in Union Membership (Bulletin Publishing Co. Inc. vs. Hon. Augusto
Sanchez).
SUPERVISORY EMPLOYEES - those who, in the interest of the employer, effectively
recommend such managerial actions if the exercise of such authority is not merely routinary
or clerical in nature but requires the use of independent judgment.

MAY SUPERVISORY EMPLOYEES FORM, ASSIST, JOIN A LABOR ORGANIZATION?


YES, on their own and NOT with the rank-and-file employees (RA 6715).

The TEST IS: Do they exercise independent judgment which is not subject to
evaluation of other department heads/other superiors? If in the affirmative, then they
may-must form a labor organization of their own [separate from the rank and file
employees]
If their responsibilities do not inherently require the exercise of discretion and
independent judgment [or merely routinary/clerical in nature] then they may join the
union composed of the rank and file employees.

NOTE: It is the nature of the employees functions and not the nomenclature or title given to
his job which determines whether he has a rank and file or managerial status. (Engineering
Equipment, Inc. vs. NLRC)
MAY THEY AFFILIATE WITH A FEDERATION OF LABOR ORGANZATIONS OF RANK AND FILE
EMPLOYEES?
YES. Provided that:
a. the federation is not actively involved in union affairs in the company; and
b. the rank and file employees are not directly under the control of the supervisors
(Adamson vs. Adamson)
EFFECT OF HAVING MIXED MEMBERSHIP A union whose membership is a mixture of the
supervisors and the rank and file is not and cannot become a legitimate labor organization. It
cannot petition for a certification election, much less ask to be recognized as the bargaining
representative of employees.
CONFIDENTIAL EMPLOYEES - by the very nature of their functions, they 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. Therefore, the rationale behind the
ineligibility of managerial employees to form, assist or join a labor union equally applies to
them. (Philips Industrial Devt Inc. Vs. NLRC)
- they are entrusted with confidence on delicate matters, or with the custody, handling, or
care and protection of the employers property. Under the doctrine of necessary implication,
confidential employees are similarly disqualified under Article 245. (Republic Planters Bank vs.
Torres)
NOTE: The phrase in the field of labor relations is important. It stresses labor nexus, i.e.,
confidentiality of the position is related or linked to labor relations matters.
Access to information which is regarded by the employer to be confidential from the
business standpoint, such as financial information or technical trade secrets, will not
render an employee a confidential employee. (SMC Supervisors & Exempt Union vs.
Hon. Laguesma, et al.)
Confidentiality is not a matter of official rank, it is a matter of job content and
authority. It is not measured by closeness to or distance from top management, but by
the significance of the jobholders role in the pursuit of corporate objectives and
strategies.
Every managerial position is confidential because one does not become a manager
without having gained the confidence of the appointing authority. But not every
confidential employee is managerial; he may be a supervisory or even a rank-and-file
employee.

ART. 246. NON-ABRIDGEMENT OF THE RIGHT TO SELF-ORGANIZATION


THE RIGHT TO SELF-ORGANIZATION SHALL NOT BE ABRIDGED MEANS:
It shall be unlawful for any person to:
a.
b.
c.
d.

restrain,
coerce,
discriminate against, or
unduly interfere

- with employees and workers in their exercise of the right to self-organization.

Any act intended to weaken or defeat the right is regarded by law as an offense, which
is technically called unfair labor practice.

TITLE VI

UNFAIR LABOR PRACTICES


CHAPTER I
CONCEPT
ART. 247. UNFAIR LABOR PRACTICES
NATURE OF UNFAIR LABOR PRACTICES:
1. VIOLATE THE CONSTITUTIONAL RIGHT of workers and employees to self-organization;
2. 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
3. DISRUPT INDUSTRIAL PEACE; and
4. hinder the promotion of healthy and stable labor-management relations and mutual
respect [LABOR-MNGT RELATIONS-UNSTABLE];
2 ELEMENTS OF UNFAIR LABOR PRACTICE:
1. employer-employee relationship between the offender and the offended
2. act done is expressly defined in the Code as an act of unfair labor practice
3. it is now considered a criminal offense triable by the criminal court
NOTE: Prohibited acts are all related to the workers' self-organizational right and the the
observance of a CBA, except Art. 248 (f) dismissing or prejudicing an employee for giving
testimony under the Code.
ULP has a technical meaning.
It is a practice unfair to labor, although the offender may either be an employer or a
labor organization
It refers to acts opposed to workers' right to organize. Without this, the act, no matter
how unfair, is not ULP.
It commonly connotes anti-unionism.

It also refers to gross violation of CBA provisions. Gross means the act is malicious and
flagrant.
2 ASPECTS OF UNFAIR LABOR PRACTICE:
CIVIL CASE
CRIMINAL CASE
A. PERSONS LIABLE
1. Officers and 1. Agents and officers
agents
of who
participated
or
employer or
authorized or ratified
2. Labor
the act.
organization,
2. Agents,
officers
and representatives, members
agents
of the government board,
including
ordinary
members
B. JURISDICTION
-Labor Arbiters of -MTC/RTC as the case
the NLRC
may be.
C. QUANTUM OF PROOF NEEDED
-substantial
-beyond reasonable doubt
evidence
[subject to prosecution
and punishment]
D. PRESCRIPTIVE PERIOD
- one year from - one year from the
the accrual of the accrual of the ULP act,
ULP act.
however
it
will
be
suspended
once
the
administrative case has
been filed and would only
continue running once the
administrative case has
attained finality.
Final judgment in the
administrative
proceeding finding that
ULP has been committed
is a prerequisite in filing
a criminal case for ULP
NOTE: Final judgment in
the
administrative
proceedings shall not be
binding in the criminal
case
nor
shall
be
considered
as
an
evidence of guilt but
merely as a proof of
compliance
of
the
requirements prescribed
by the Code.

CHAPTER II
UNFAIR LABOR PRACTICES
OF EMPLOYERS
ART 248. ULP THAT MAY BE COMMITTED BY AN EMPLOYER (1-10)

1. To INTERFERE WITH, RESTRAIN OR COERCE EMPLOYEES


- in the exercise of their right to self-organization;
INTERFERENCE
Examples:
- outright and unconcealed intimidation
- interrogation
employer must communicate to the employee the purpose of questioning
1. assure him that no reprisal would take place
2. obtain employee participation voluntarily
3. must be free from employer hostility to union organization
4. must not be coercive in nature
-intimidating expressions of opinion by employer
TEST OF INTERFERENCE OR COERCION - whether the employer has engaged in conduct which
it may reasonably be said tends to interfere with the free exercise of the employees' right and
it is not necessary that there be direct evidence that any employee was in fact intimidated or
coerced by the statements of threats or the employer if there is a reasonable interference that
the anti-union conduct of the employer does have an adverse effect of self-organization and
collective bargaining.
2. TO REQUIRE AS A CONDITION FOR EMPLOYMENT THAT A PERSON OR AN EMPLOYEE
- shall not join a labor organization or
- shall withdraw from one to which he belongs;
YELLOW DOG CONTRACT - A promise exacted from workers as a condition of employment
that they are not to belong to, or attempt to foster, a union during their period of
employment. It is null and void because:
- It is contrary to public policy for it is tantamount to involuntary servitude.
- It is entered into without consideration for employees in waiving their right to selforganization
- Employees are coerced to sign contracts disadvantageous to their family.
Does Art. 248 (3) mean that an employer cannot contract out work?
NO. Contracting out services is not ULP per se. It is ULP only when the following conditions
exist:
1. the service contracted- out are being performed by union members; and
2. such contracting-out interferes with, restrains, or coerce employees in the
exercise of their right to self-organization.
HOWEVER, when the contracting-out is being done to minimize expenses, then it is a valid
exercise of management prerogative.
3. 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;
4. To INITIATE, DOMINATE, ASSIST OR OTHERWISE INTERFERE
- with the formation or administration of any labor organization,
- including the giving of financial or other support to it or its organizers or officers;
(Formation of Company Union)

5. To DISCRIMINATE IN REGARD TO WAGES, hours of work, and other terms and conditions of
employment in order to encourage or discourage
membership in any labor
organization.
TEST OF DISCRIMINATION- whenever benefits or privileges given to one is not given to the
other under similar or identical conditions when directed to encourage or discourage union
membership (see more discussions below)
6. To DISMISS, DISCHARGE OR
OTHERWISE PREJUDICE OR DISCRIMINATE against an
employee
- for having given or being about to give testimony under this Code; (The only ULP act
which is not anti-unionism)
DISCRIMINATION BECAUSE OF TESTIMONY
TEST: the subject matter of the testimony can be anything under the Code
what is ULP is the employer's retaliatory act regardless of the subject of employee's
complaint or testimony
7. TO VIOLATE THE DUTY TO BARGAIN

COLLECTIVELY AS PRESCRIBED BY THIS CODE;

8. 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

disputes; or
9.

To VIOLATE A COLLECTIVE BARGAINING AGREEMENT.(GROSSLY!)


the violation must be gross and with respect to the economic provision of the CBA
(flagrant and with malice)
All the aforementioned acts (Nos. 1-9) must have a relation to the employees exercise of
their to self-organization. Anti-union or anti-organization motive must be proved because it
is a definitional element of ULP.
RUNAWAY SHOP - an industrial plant moved by its owners from one location to another to
escape union labor regulations or state laws or to discriminate against employees at the old
plant because of their union activities.

COMPANY UNIONISM
1. Initiation of the company union idea by:
a. outright formation by employer or his representatives
b. employee formation on outright demand or influence by employer
c. managerially motivated formation by employees
2. financial support to the union by:
a. employer defrays union expenses
b. pays attorney's fees to the attorney who drafted the Constitution or by laws of
the union
3.
employer encouragement and assistance
by immediate granting of exclusive
recognition as bargaining agent without determining whether the union represents
majority of the employees
4. supervisory assistance by soliciting membership, permitting union activities during work
time or coercing employees to join the union by threats of dismissal or demotion.

DISCRIMINATION FOR OR AGAINST UNION MEMBERSHIP


TEST OF DISCRIMINATION: That the discharge of an employee was motivated by his union
activity. Such inference must be based on evidence, direct or circumstantial, not upon mere
suspicion.

CONSTRUCTIVE DISCHARGE - ULP where employer prohibits employees from exercising their
rights under the Code, on pain of discharge, and the employee quits as a result of the
prohibition
THREE COMPONENTS OF ART. 248(5) (DISCRIMINATION):
1.It prohibits discrimination in terms and conditions of employment in order to encourage
or discourage membership in the union;
2.It gives validity to union security agreements;
3.It allows an agency shop arrangement whereby agency fees may be collected from nonunion members.
SECURITY ARRANGEMENTS - stipulations in the CBA requiring membership in the contracting
union as a condition for employment or retention of employment in the company.
PRINCIPLES OF UNION SECURITY ARRANGEMENTS:
1. Protection - To shield union members from whimsical and abusive exercise of management
prerogatives.
2. Benefits - An additional membership will insure additional source of income to the union in
the form of union dues and special assessment.
3. Self-preservation- It strengthens the union
through selective acceptance of new
members on the basis of commitment and loyalty.
DIFFERENT KINDS OF UNION SECURITY ARRANGEMENTS: (EXCEPTIONS TO ULP ON
INTERFERENCE ON THE EMPLOYEES EXERCISE OF THEIR RIGHT TO SELF-ORGANIZATION)
1. CLOSED-SHOP AGREEMENT - the employer undertakes not to employ any individual who is
not a member of the contracting union and the said individual once employed must, for the
duration of the agreement, remain a member of the union in good standing as a condition for
continued employment.
- does not have any retroactivity
- apply only to new hires
EXCEPTIONS:
a. employees belonging to any religious sect which prohibit affiliation of their members with
any labor organization are not covered by such agreementThe free exercise of religious
belief is superior to contract rights (Victoriano vs. Elizalde Rope Workers).
b. members of the rival union are not covered by such arrangement.
SEMI-CLOSED SHOP AGREEMENT- has no requirement for the employee to remain as
member of the contracting union in good standing as a condition for continued
employment.
2. UNION SHOP AGREEMENT -stipulation whereby any person can be employed by the
employer but once employed such employee must, within a specific period, become a member
of the contracting union and remain as such in good standing for continued employment for the
duration of the CBA [take note of the exceptions in the preceding number.]
3. MAINTENANCE OF MEMBERSHIP CLAUSE - the agreement DOES NOT require non-members
to join the contracting union BUT provides that those who are members thereof at the time of
the execution of the CBA and those who may thereafter on their own volition become members
must for the duration of the agreement maintain their membership in good standing as a
condition for continued employment in the company for the duration of the CBA.

4. PREFERENTIAL SHOP AGREEMENT an agreement whereby the employer merely agrees to


give preference to the members of the bargaining union in hiring, promotion or filing vacancies
and retention in case of lay-off. The employer has the right to hire from the open market if
union members are not available.
5. AGENCY SHOP AGREEMENT - an agreement whereby employees must either join the union
or pay to the union as exclusive bargaining agent a sum equal to that paid by the members.
This is directed against FREE RIDER employees who benefit from union
activities without contributing support to the union, to prevent a situation of non-union
members enriching themselves at the expense of union members.
Employee members of another/rival union are not considered free riders since
when the union [agent] bids to be the bargaining agent, it voluntarily assumed the
responsibility of representing all the employees in the appropriate bargaining unit.

REQUIREMENTS FOR A VALID TERMINATION BY THE EMPLOYER OF THE SERVICES OF AN


EMPLOYEE PURSUANT TO A UNION OR CLOSED-SHOP AGREEMENT:
1. The agreement must be expressed in a CLEAR AND UNEQUIVOCAL way so as not to leave
room for interpretation because it is a limitation to the exercise of the right to selforganization.
Any doubt must be resolved against the existence of a closed-shop agreement.
2. The agreement can only have PROSPECTIVE APPLICATION and cannot be applied
retroactively.
3. It can only be exercised by giving the employee his right to DUE PROCESS.
- The employer has the right to satisfy himself that there are sufficient bases for the
request of the union.
The termination of the services of the employee is not automatic upon the request of
the union.
4. It cannot be applied to employees who are already MEMBERS OF THE RIVAL UNION or to
the employees based on their religious beliefs.

CHAPTER III
UNFAIR LABOR PRACTICES OF LABOR ORGANIZATIONS
ART. 249. UNFAIR LABOR PRACTICES OF LABOR ORGANIZATIONS
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
c. To VIOLATE THE DULY OR REFUSE TO BARGAIN COLLECTIVELY with the employer provided
that 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 an exaction, for services
which are not performed or not to be performed, including the demand for a fee for union
negotiations; (This is called FEATHERBEDDING)
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 GROSSLY VIOLATE A COLLECTIVE BARGAINING AGREEMENT.


The violation must be gross and must be with respect to economic provisions of the CBA
flagrantly and with malice.

PERSONS CIVILLY LIABLE FOR ULP:


1. Officers and agents of employer
2. Labor organization, officers and agents
3. Agents and officers who participated or authorized or ratified the act.
FEATHERBEDDING - refers to the practice of the union or its agents in causing or
attempting to cause an employer to pay or deliver or agree to pay or deliver money or other
things of value, in the nature of exaction, for services which are not performed or not to be
performed, as when a union demands that the employer maintain personnel in excess of the
latters requirements.
It is not featherbedding if the work is performed no matter how unnecessary or useless
it may be.
SWEETHEART DOCTRINE considers it ULP for a labor organization to ask for or accept
negotiation or attorneys fees from the employer in settling a bargaining issue or dispute

resulting CBA is considered a sweetheart contract a CBA that does not substantially
improve the employees wages and benefits.

TITLE VII
COLLECTIVE BARGAINING AND ADMINISTRATION OF AGREEMENTS
ART. 250. PROCEDURE IN COLLECTIVE BARGAINING
COLLECTIVE BARGAINING negotiation by an organization or group of workmen, in behalf of
its members, with the employer, concerning wages, hours of work and other terms and
conditions of employment and the settlement of disputes by negotiation between an employer
and the representative of his employees.
Negotiation towards a collective agreement.
The mechanics of collective bargaining is set in motion only when the following
JURISDICTIONAL PRECONDITIONS are present:
1. POSSESSION OF THE STATUS OF MAJORITY representation by the employees
representative in accordance with any of the means of selection or designation provided
for by the Labor Code;
2. proof of MAJORITY REPRESENTATION (Certification of the BLR that the representative
of the employees in the sole and exclusive bargaining agent having won in a certification
election); and
3. a DEMAND TO BARGAIN under Article 250 (a) of the Labor Code. (Kiok Loy vs. NLRC)
COLLECTIVE BARGAINING AGREEMENT (CBA) - a negotiated contract between a legitimate
labor organization and the employer concerning:
a. wages,
b. hours of work, and
c. all other terms and conditions of employment in a bargaining unit, including
mandatory provisions for grievances and arbitration machineries.

PROCEDURE IN COLLECTIVE BARGAINING


1.
2.
3.

Written NOTICE with statement of proposals


REPLY by the other party within 10 calendar days with counter proposals
In case of differences, either party may REQUEST FOR A CONFERENCE which must be
held within 10 days from receipt of request.
4.
If not settled NCMB MAY INTERVENE AND ENCOURAGE the parties to submit the
dispute to a voluntary arbitrator
5.
If not resolved, the parties may go to where they want AND RESORT TO ANY OTHER
LAWFUL MEANS [either to settle the dispute or submit it to a voluntary arbitrator].
During the conciliation proceeding in the Board, the parties are prohibited from
doing any act which may disrupt or impede the early settlement of the disputes (250[d]
LC).
8 STAGES IN THE NEGOTIATION FOR A COLLECTIVE BARGAINING AGREEMENT:
1. PRELIMINARY process - written notice for negotiation which must be clear and
unequivocal
2. NEGOTIATION Process
3. EXECUTION Process signing of the agreement
4. PUBLICATION for at least 5 days before ratification
5. RATIFICATION by the majority of all the workers in the bargaining unit represented in the
negotiation (not necessary in case of arbitral award)
6. REGISTRATION Process
Requisites for registration:
a. mandatory provisions
b. payment of P1, 000
c. 5 copies of CBA
d. proof of ratification
7. ADMINISTRATION Process the CBA shall be jointly administered by the management and
the bargaining agent for a period of 5 years
8. INTERPRETATION AND APPLICATION Process
MANDATORY PROVISIONS OF THE CBA:
1. wages
2. hours of work
3. grievance machinery
4. voluntary arbitration
5. family planning
6. rates of pay
7. mutual observance clause

In addition, the Bureau requires that the CBA should include a clear statement of the
terms of the CBA.

Note: Employers duty to bargain is limited to mandatory bargaining subjects; as to other


matters, he is free to bargain or not to bargain.
ART. 252. MEANING OF DUTY TO BARGAIN COLLECTIVELY

DUTY TO BARGAIN COLLECTIVELY - the performance of a mutual obligation:


a.

to MEET AND CONVENE promptly and expeditiously in good faith for the purpose of
negotiating an agreement with respect to wages, hours of work and all other terms and
conditions of employment including proposals for adjusting any grievances or questions
arising under such agreement and

b. EXECUTING A CONTRACT incorporating such agreements if requested by either party.


LIMITATIONS:
1. the duty to bargain collectively does not compel any party to:
a. agree to a proposal; or
b. make a concession.
No room for Take it or Leave it posture.
2. the parties cannot stipulate terms and conditions of employment which are below the
minimum requirements prescribed by law
(Meaning of duty to bargain when there exists a CBA, see discussion under Art. 253)

Collective bargaining does not end with the execution of the agreement. It is a
continuous process. The duty to bargain imposes on the parties during the term of their
agreement the mutual obligation to meet and confer promptly and expeditiously and in
good faith for the purpose of adjusting any grievances or question arising under such
agreement. (Republic Savings Bank vs. CA)

FOUR (4) FORMS OF ULP IN BARGAINING:


a. failure or refusal to meet and convene
b.
evading the mandatory subjects of bargaining
c. bad faith in bargaining [boulwarism], including failure or refusal to execute the CBA, if
requested
d. gross violation of the CBA
Do economic exigencies justify refusal to bargain?
An employer has been held not guilty of refusal to bargain by adamantly rejecting the union's
economic demands where he is operating at a loss, on a low profit margin, or in a depressed
industry, as long as he continues to negotiate. But financial hardship constitutes no excuse for
refusing to bargain collectively.
ACTS NOT DEEMED REFUSAL TO BARGAIN:
1. adoption of an adamant bargaining position in good faith
2. refusal to bargain over demands for commission of ULP
3. refusal to bargain during period of illegal strike
4. there is no request for bargaining
5. union seeks recognition for an inappropriately large unit
6. union seeks to represent some persons who are excluded from the Code
7. the rank-and-file unit includes supervisors or inappropriate otherwise
8. the demand for recognition and bargaining is made within the year following a certification
election in which the clear choice was no union and no ad interim significant change has taken
place in the unit
9. the union makes unlawful bargaining demands
BARGAINING TO THE POINT OF DEADLOCK OR IMPASSE:

1. over a mandatory subject - party may insist on bargaining and will not be construed as
bargaining in bad faith
REASON: duty to bargain requires meeting and convening on the terms and conditions of
employment
but does not require assent to the other party's proposals.
2. over a non-mandatory subject - party may not insist on bargaining to the point of impasse,
otherwise, he will be construed as bargaining in bad faith.
EXAMPLE: The employer's insistence that the union should change its negotiator before
bargaining can proceed to the employees' wage and benefits is an instance of bad-faith
bargaining because the composition of the negotiating panel is not a mandatory subject of
bargaining.
Hence, if Party A insists on first settling a non-mandatory subject before tackling a mandatory
subject, Party B may complain that Party A's posture is just an excuse to avoid bargaining on
the mandatory, essential subjects of bargaining; thus, Party B can charge that Party A is
bargaining in bad faith or is evading bargaining on terms and conditions of employment - in
short, Party A is committing ULP.
NOTE: What the rule forbids is the posture of making settlement of a non-mandatory subject a
pre-condition to the discussion or settlement of a mandatory subject.
ART. 253. DUTY TO BARGAIN COLLECTIVELY WHEN THERE EXISTS A COLLECTIVE
BARGAINING AGREEMENT
GENERAL RULE: When there is an existing CBA, the duty to bargain collectively shall also
mean that neither party shall TERMINATE nor MODIFY such agreement during its lifetime. It is
the duty of both parties to:
253

253-A/256

A.FREEDOM PERIOD
-the notice of intention to
terminate, amend or alter
the provisions of the CBA
shall be filed within the
sixty (60) day period,
immediately prior to the
expiration of the CBA.
-the economic provisions
however
may
be
renegotiated not later than
three (3) years. Those
economic
provisions
entered within 6 months
from the expiry of their
term as fixed in the CBA
shall retroact to the day
immediately following such
date, if beyond 6 months
the effectivity is by
agreement of the parties.

- representation
aspect of the CBA
shall be for a
term of five (5).
A petition for
certification
election may be
entertained and
a
certification
election may be
conducted within
the 60-day period
immediately
prior
to
the
expiration of the
CBA.

B.
WHAT MAY BE
CHANGED DURING THE 60DAY FREEDOM PERIOD
-re-negotiable provisions of
the CBA particularly the
non-representation aspect
(ECONOMIC
PROVISIONS
may be renegotiated not
later than three (3) years.

a. keep the status quo and


b. to continue in the full force and effect
the terms and conditions of the existing
CBA
EXCEPTION: during the 60-day period prior
to its expiration, upon service of a written
notice of a partys intention to terminate or
modify the same, a party may choose to
terminate or modify the non-representational
aspect of the CBA only after the expiration of
CBA of fixed duration.
DUTY TO BARGAIN COLLECTIVELY UNDER
253 AND 253-A/256
AUTOMATIC RENEWAL CLAUSE Art. 253
provides that the CBA shall remain effective
and enforceable even after the expiration of
the period fixed by the parties as long as no
new agreement is reached by them.

representation
aspectit may be
resolved by holding
certification
election

WHAT MAY BE DONE DURING THE 60DAY FREEDOM PERIOD:

a. 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. [take note of the limitation-see discussions on registration of labor unions]
b. either party can serve a written notice to TERMINATE OR MODIFY the agreement at least
60 days prior to its expiration period [on re-negotiable/non-representation aspect of the
CBAsee discussion on 253]
c. a petition for CERTIFICATION ELECTION may be filed

ART. 253A. TERMS OF A COLLECTIVE BARGAINING AGREEMENT (CONTRACT BAR RULE)


DURATION OF THE CBA:
1. With respect to the representation aspect, the same lasts for 5 years
2. With respect to other provisions [economic provisions], the same may last for a
maximum period of 3 years after the execution of the CBA
RULE ON RETROACTIVE EFFECTS OF OTHER ECONOMIC PROVISIONS WITH FIXED TERM OR
DATES OF EXPIRY AS PROVIDED IN THE CBA:
a. Those made within 6 months after the date of expiry of the CBA
- Any agreement on such other provisions of the CBA made within 6 months after the date
of expiry of the CBA is subject to AUTOMATIC RETROACTION to the day immediately following
such date of expiry.
b. Those not made within 6 months the parties may agree to the DATE OF RETROACTION.
- This rule applies only if there is an EXISTING AGREEMENT. If THERE IS NO EXISTING
AGREEMENT, there is no retroactive effect because the date agreed upon shall be the start of
the period of agreement.
NOTE: Article 253-A on retroaction does not apply if the provisions were imposed by the
Secretary of Labor by virtue of arbitration. It applies only if the agreement was voluntarily
made by the parties.
ART. 254. NO INJUNCTION 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, except as otherwise
provided in Articles 218 (Powers of the Commission/NLRC) and 264 (Prohibited Activities) of this
Code.
REASON: injunction contradicts the constitutional preference for voluntary modes of dispute
settlement

In cases of strikes/picketing, third parties or innocent bystanders may secure a court


(regular court) injunction to protect their rights. (PAFLU vs. CLORIBEL)

ART. 255. EXCLUSIVE BARGAINING REPRESENTATION AND WORKERS PARTICIPATION IN


POLICY AND DECISION-MAKING
WHAT IS THE MEANING OR EXTENT OF THE WORKERS RIGHT TO PARTICIPATE IN POLICY
AND DECISION-MAKING PROCESSES?
Such right refers ONLY to participation in grievance procedures and voluntary modes of
settling disputes and NOT to formulation of corporate programs and policies.

NOTE: An employer may solicit questions, suggestions and complaints from employees
eventhough the employees are represented by a union, provided:
1. the collective bargaining representative executes an agreement waiving the right to be
present on any occasion when employee grievances are being adjusted by the employer
and
2. employer acts strictly within the terms of this waiver agreement.

ONE-UNION, ONE-COMPANY POLICY - the proliferation of unions in an employer unit is


discouraged as a matter of policy unless there are compelling reasons which would deny a
certain class of employees the right to self-organization for purposes of collective bargaining.
EXCEPTION:
- supervisory employees who are allowed to form their own unions apart from the rank-andfile employees
- the policy should yield to the right of employees to form unions for purposes not contrary to
law, self-organization and to enter into collective bargaining negotiations.
two companies cannot be treated into a single bargaining unit even if their businesses
are related.
subsidiaries or corporations formed out of former divisions of a mother company
following a reorganization may constitute a separate bargaining unit.
LABOR MANAGEMENT COUNCILS - deal with the employer on matters affecting employees
rights, benefits and welfare.
They may be formed even if there is already a union in the company.
ARTS. 256-259 PETITION FOR CERTIFICATION ELECTION
BARGAINING UNIT- a group of employees of a given employer, comprised of all or less than
all the entire body of the employees, which, consistent with equity to the employer, indicate
to be best suited to serve the reciprocal rights and duties of the parties under the collective
bargaining provision of the law.
CERTIFICATION YEAR - refers to the period wherein collective bargaining should begin,
which is within 12 months following the determination and certification of employees' exclusive
bargaining representative.
FOUR FACTORS IN DETERMINING THE APPROPRIATE BARGAINING UNIT:
1. the EXPRESS WILL OR DESIRE of the employees (Globe Doctrine);
the desires of all the employees are relevant to the determination of the appropriate
bargaining unit. The relevance of the wishes of the employees concerning their
inclusion or exclusion from a proposed bargaining unit is inherent in the basic right to
self organization
2. the SUBSTANTIAL AND MUTUALITY INTEREST factor;
3. prior collective bargaining HISTORY; and

4. EMPLOYMENT STATUS, such as


a. temporary
b. seasonal, and
c. probationary employee

THINGS TO CONSIDER IN DETERMINING THE COMMUNITY OF INTEREST


DOCTRINE:
1. similarity in the scale and manner of determining earnings
2. similarity in employment benefits, hours of work and other terms and conditions of
employment
3. similarity in the kinds of work performed
4. similarity in the qualifications, skills and training of the employees
5. frequency of contract or interchange among the employees
6. common supervision and determination of labor-relations policy
7. history of previous collective bargaining
8. desires of the affected employees
9. extent of union organization
MODES OF CHOOSING THE EXCLUSIVE BARGAINING UNIT:
1. SELECTION - certification election
2. DESIGNATION - voluntary recognition
A. CERTIFICATION ELECTION the process of determining by secret ballot the sole and
exclusive bargaining agent of the employees in an appropriate bargaining unit, for purposes of
collective bargaining
CERTIFICATION vs. CONSENT ELECTION
CERTIFICATION
CONSENT
ELECTION
ELECTION
A. NATURE
- separate and distinct
from
a
consent
election

- a separate and
distinct process
and has nothing
to do with the
import
and
effect
of
a
certification
election

B. PURPOSE
- to determine the sole
and
exclusive
bargaining agent of all
the employees in an
appropriate bargaining
unit for the purpose of
collective bargaining;

- to determine
the
issue
of
majority
representation of
all the workers
in
the
appropriate
collective
bargaining unit
mainly for the
purpose
of
determining the
administrator of
the CBA when
the contracting
union
suffered
massive
disaffiliation but
not
for
the
purpose
of
determining the
bargaining agent
for purposes of
collective
bargaining.

DIRECT CERTIFICATION - the process whereby the Med-Arbiter directly certifies a labor
organization of an appropriate bargaining unit of a company after a showing that such petition
is supported by at least a majority of the employees in the bargaining unit. IT IS NO LONGER
ALLOWED. (EO 111)
VOLUNTARY RECOGNITION the process whereby the employer recognizes a labor organization
as the exclusive bargaining representative of the employees in the appropriate bargaining unit
after a showing that the labor organization is supported by at least a majority of the employees
in the bargaining unit.
EFFECT OF VOLUNTARY RECOGNITION BY THE EMPLOYER - through voluntary recognition by
the employer, the labor organization is recognized by the employer as the exclusive bargaining
agent which may collectively bargain with such employer.

C.E. IN AN ORGANIZED AND AN UNORGANIZED ESTABLISHMENT


ORGANIZED

UNORGANIZED

A. WHEN MANDATORY ON
THE PART OF BLR
- upon the filing of a
verified petition by a
legitimate
labor
organization
questioning
the majority status of the
incumbent
bargaining
agent within the 60-day
freedom period before the
expiration of a CBA.
- The petition must be
supported by the written
consent of at least 25% of
ALL THE EMPLOYEES IN
THE
APPROPRIATE
BARGAINING UNIT.
- the employer cannot file
a petition for certification
election; only a legitimate
labor organization can file
such petition.

B. PERIOD FOR FILING THE


PETITION
a. when there is a CBA,
the labor organization can
file
a
petition
for
certification
election
within the 60-day freedom
period
(CONTRACT-BAR
RULE)
b. when there is no CBA,
then the labor organization
can file a petition for
certification election at
any time, subject to the
Deadlock Bar Rule.

Upon:
a. the filing
of a verified
petition by a
legitimate
labor
organization;
or
b. upon the
filing of a
petition
by
the employer
when
such
employer is
requested by
the
employees to
bargain
collectively.

- any time,
subject
however to
the
ONEELECTIONPER-YEAR
RULE.

REQUISITES BEFORE A LABOR UNION CAN BE DECLARED A WINNER (DOUBLE MAJORITY


RULE):
1. Majority of the eligible voters cast their votes AND
2. Majority of the valid votes cast is for such union.
HOW TO DETERMINE THE DOUBLE MAJORITY RULE:
1. In determining the eligible votes cast [FIRST MAJORITY], include spoiled ballots
2. In determining valid votes [SECOND MAJORITY], eliminate spoiled ballots but include
challenged votes

RUN-OFF ELECTION:
A run-off election is proper if the following conditions exist namely:
(a) a VALID ELECTION took place because majority of the Collective Bargaining
Unit members voted [FIRST MAJORITY];
(b) the said election presented at least THREE CHOICES, e.g., Union One, Union
Two, and No Union (Take Note: No Union shall not be a choice in the run off
election);
(c) NOT ONE OF THE CHOICES OBTAINED THE MAJORITY (50%+1-SECOND
MAJORITY) of the valid votes cast;
(d) the TOTAL VOTES FOR THE UNIONS IS AT LEAST 50% of the votes cast;
(e) there is NO UNRESOLVED CHALLENGED VOTES or election protest which if
sustained can materially alter the results
(f) the two choices which garnered the highest votes will be voted and the one
which garners the highest number of votes will be declared the winner provided they
get the majority votes of the total votes cast
Who will participate in the run off?
The unions receiving the highest and

second highest number of votes cast.

Re Run Election vs. Run off Election


RE RUN ELECTION
RUN OFF
ELECTION
Held
in
instances:

two

1. if one choice
receives
a
plurality of vote
and
the
remaining
choices results
in a tie;
2. if all choices
received
the
same number of
votes;
In
both
instances,
the
NO UNION is also
a choice

Conducted
when
none
of
the
choices, including
the choice of No
Union, receives a
majority of the
valid vote cast.
This
presupposes
no less than three
competing choices.
In this situation, an
election
is
conducted between
the union choices
receiving
the
largest and the
second
largest
number of the valid
votes cast.

RULES WHICH PREVENT THE HOLDING OF A CERTIFICATION ELECTION [DONC]:


1. Deadlock bar rule- when there is a deadlock in collective bargaining and the same
has been submitted to NCMB for conciliation and mediation the same bars any petition or
conduct of certification election.

2. One year bar rule


3. Negotiation bar rule
4. Contract bar rule
1. CONTRACT-BAR RULE - while a valid and registered CBA of a fixed duration is subsisting,
the BLR is not allowed to hold an election contesting the majority status of the incumbent
union during the five year term of the CBA except during the sixty day period immediately prior
to the expiration of the CBA.
REQUIREMENTS IN ORDER TO INVOKE CONTRACT-BAR RULE:
1.
2.
3.
4.
5.
6.
7.

Agreement is in WRITING AND SIGNED by all contracting parties.


It must contain THE TERMS AND CONDITIONS of employment.
Covered employees in an appropriate bargaining unit [ABU EES COVERED].
It is for a REASONABLE PERIOD or duration.
It must be RATIFIED.
It must be REGISTERED with the Bureau.
The violation of the contract bar rule or the existence of a duly registered CBA must be
specifically IMPLEADED AS A DEFENSE.

EFFECT OF AN INVALID AND UNREGISTERED CBA- there is no bar and therefore a


certification election may be held.
NOTE: Registration of CBA only puts into effect the contract bar rule but the CBA itself is valid
and binding even if unregistered.
EXCEPTIONS TO THE CONTRACT-BAR RULE:
1.
2.
3.
4.
5.
6.

CBA is not registered


CBA deregistered
CBA was hastily concluded way ahead of the freedom period
CBA is incomplete in itself
CBA does not foster industrial peace because of schism
CBA was concluded in violation of an order enjoining the parties from entering into a CBA
until the issue of representation is resolved
7. Petition is filed during the 60-day freedom period
SUCCESSOR-IN-INTEREST DOCTRINE When an employer with an existing CBA is succeeded by
another employer, the successor-in-interest who is a buyer in good faith has no liability to the
employees in continuing employment and the collective bargaining agreement because these
contracts are in personam
EXCEPT:
a. when the successor-in-interest expressly assumes the obligation or
b. the sale is a device to circumvent the obligation or
c. the sale or transfer is made in bad faith
SUBSTITUTIONARY DOCTRINE where there occurs a shift in the employees union allegiance
after the execution of a collective bargaining contract with the employer, the employees can
change their agent (the labor union) but the collective bargaining contract which is still
subsisting continues to bind the employees up to its expiration date. They may, however,
bargain for the shortening of said expiration date.

The employees cannot revoke the validly executed collective bargaining contract with
their employer by the simple expedient of changing their bargaining agent. The new

agent must respect the contract. (Benguet Consolidated, Inc. vs. Employees and
Workers Union-PAFLU)
LIMITATION AS TO ITS APPLICATION it cannot be invoked to support the contention that a
newly certified collective bargaining agent automatically assumes all the personal undertakings
of the former agentlike the no strike clause in the CBA executed by the latter (Benguet
Consolidated Inc. vs. BCI Employees and Workers Union-PAFLU).
2. DEADLOCK BAR RULE - a petition for certification election cannot be entertained if, before
the filing of the petition for certification election, 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.
DEADLOCK arises when there is an impasse, which presupposes reasonable effort at good
faith bargaining which, despite noble intentions, did not conclude in an agreement between
the parties.
INDICATIONS OF A GENUINE DEADLOCK:
1. the submission of the deadlock to a
2. the deadlock is the subject of
a valid notice of strike or lockout

third party conciliator or arbitrator

3. NEGOTIATION BAR RULE - a petition for certification election cannot be entertained if,
before the filing of the petition for certification election, the duly recognized or certified
union has commenced negotiations with the employer in accordance with Art. 250 of the Labor
Code.
4. CERTIFICATION YEAR RULE no petition for certification election may be filed within one
year from the date of a valid certification, consent, or run-off election or from the date of
voluntary recognition
EXAMPLES OF BAD FAITH BARGAINING:
1. Surface Bargaining occurs when employer constantly changes its positions over the
agreement.
2. Boulwarism occurs:
a. when the employer directly bargains with the employee disregarding the union.

The aim was to deal with the Union through the employees, rather than with the
employees through the union.
b. Employer submits its proposals and adopts a take it or leave it stand. This is not
negotiation because the take it or leave it stand implies threat.
3.

Side Bar Technique

TITLE VII- A
(as incorporated by RA 6715)
GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION
ART. 260. GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION

GRIEVANCE MACHINERY - a mechanism for the adjustment of controversies or disputes arising


from the interpretation or implementation of the CBA and the interpretation or enforcement of
company personnel policies
GRIEVANCE - arises when a dispute or controversy arises over the implementation or
interpretation of a CBA or from the implementation or enforcement of company personnel
policies, and either the union or the employer invokes the grievance machinery provision for
the adjustment or resolution of such dispute or controversy.
NATURE OF GRIEVANCE PROCEDURE - It is a must provision in any CBA and no collective
agreement can be registered in the absence of such procedure.
It is a part of the continuous process of collective bargaining intended to promote a
friendly dialogue between labor and management as a means of maintaining industrial peace.
VOLUNTARY ARBITRATION - contractual proceedings where parties to a dispute select a judge
of their own choice and by consent submit their controversy to him for determination.
All grievances not settled within 7 days from the date of its submission to the grievance
machinery shall automatically be referred voluntary arbitration prescribed in the CBA.
Although the provision mentions parties to a collective bargaining agreement, it
does not mean that a grievance machinery cannot be set up in a CBA-less
enterprise. In any work place where grievance can arise, a grievance machinery
(regardless of name) can be established.
In a unionized company, Art. 255 allows an employee, union member or not, to
raise a grievance directly to the employer.
ARBITRATION MAY BE INITIATED BY:
1.
2.

SUBMISSION AGREEMENT where the parties define the disputes to be resolved; or


DEMAND OR NOTICE invoking a collective agreement arbitration clause.

ART 261. JURISDICTION OF VOLUNTARY ARBITRATORS OR PANEL OF VOLUNTARY


ARBITRATORS
JURISDICTION OF VOLUNTARY ARBITRATORS:
1. EXCLUSIVE ORIGINAL JURISDICTION CONFERRED BY LAW
a)All grievances arising from the interpretation or implementation of the CBA.
b) Those arising from the interpretation or enforcement of company personnel polices.
c)Hear and decide wage distortion issues arising from the application of any wage orders
in organized establishments.
d) Unresolved grievances arising from the interpretation and implementation of the
productivity incentive programs under RA 6071 .

It is the labor arbiter and not the grievance machinery which has jurisdiction over
dismissals pursuant to the union security clause.
violations of CBA, except those which are gross in character, shall no longer be treated
as ULP and shall be resolved as grievances.

GROSS VIOLATION flagrant and/or malicious refusal to comply with the economic provisions
of the CBA.

2. JURISDICTION BY AGREEMENT OF THE PARTIES (Art. 262)

-all other disputes including ULP and bargaining deadlocks


The disputes the parties may submit to a Voluntary Arbitrator can include any or all the
disputes mentioned in Art. 217 which otherwise fall under the exclusive jurisdiction of
a labor arbiter.
Voluntary arbitration may be viewed as a master procedure to prevent or resolve labor
disputes

GROUNDS FOR JUDICIAL REVIEW OF DECISIONS OF VOLUNTARY ARBITRATORS:


1.
2.
3.
4.
5.

Lack of jurisdiction
Grave abuse of discretion
Violation of due process
Denial of substantial justice
Erroneous interpretation of the law

A voluntary arbitrator is a quasi-judicial instrumentality (Sec 9 BP129 as amended by


RA 7902); hence, a petition for certiorari under Rule 65 of the Rules of Court will lie
where a grave abuse of discretion or an act without or in excess of jurisdiction of the
voluntary arbitrator is shown, which may be filed with the Court of Appeals.

TITLE VIII
STRIKES AND LOCKOUTS AND FOREIGN INVOLVEMENT IN TRADE UNION ACTIVITIES
CHAPTER I
STRIKES AND LOCKOUTS
ART. 263. STRIKES, PICKETING AND LOCKOUTS
STRIKE - Any temporary stoppage of work by the concerted action of employ ees as a

result of an industrial or labor dispute.

IMPORTANCE: it is the most effective weapon of labor in protecting the rights of


employees to improve the terms and conditions of their employment.
Government employees may form labor unions but are not allowed to strike.

Only legitimate labor organizations are given the right to strike.

Ununionized workers may hold a protest action but not a strike

Not all concerted activities are strikes; they may only be protest actions. And they do
not necessarily cause work stoppage by the protesters. A strike, in contrast, is always a
group action accompanied by work stoppage.
LOCKOUT - means the temporary refusal of an employer to furnish work as a result of an
industrial or labor dispute.
PICKETING - the act marching to and fro the employers premises, usually accompanied
by the display of placards and other signs making known the facts involved in a labor dispute.
This is an exercise of ones freedom of speech.
STRIKE-BREAKER - any person who obstructs, impedes or interferes by force, violence,
coercion, threats or intimidation with any peaceful picketing by employees during any labor
controversy affecting wages, hour or conditions of work or in the exercise of the right to self
organization or collective bargaining
STRIKE AREA the establishment, warehouse, depots, plants or offices, including the
sites or premises used as runaway shops of the employer struck against, as well as the

immediate vicinity actually used by picketing strikers in moving to an fro before all points of
entrance to and exit from said establishment
SOME EXAMPLES OF STRIKES AND THEIR VALIDITY
A.
SIT-DOWN STRIKE - is characterized by a temporary work stoppage of workers who
thereupon seize or occupy property of the employer or refuse to vacate the premises of the
employer. ILLEGAL- amounts to a criminal act because the employees trespass on the premises
of the employer.
B. WILDCAT STRIKE- is a work stoppage that violates the labor contract and is not authorized
by the union. ILLEGAL- It is not valid because it fails to comply with certain requirements of
the law, to wit: notice of strike, vote, and report on strike vote.
C. SYMPATHETIC STRIKES- are work stoppages of workers of one company to make common
cause with other strikers of other companies, without demands or grievances of their own
against the employer. ILLEGAL - because there is no labor dispute between the workers who
are joining the strikers and the latters employer.
D. SECONDARY STRIKES- are work stoppages of workers of one company to exert pressure
on their employer so that the latter will in turn bring pressure upon the employer of another
company with whom another union has a labor dispute. ILLEGAL- because there is no labor
dispute involved.
IS A WELGA NG BAYAN LEGAL?
NO. A welga ng bayan is illegal because it is a political strike and therefore there is
neither a bargaining deadlock nor any ULP. It is a political rally.
GROUNDS FOR THE DECLARATION OF STRIKE:
1. deadlock in collective bargaining
(ECONOMIC); and/or
2. unfair labor practices (POLITICAL)
ECONOMIC STRIKE

ULP STRIKE
[POLITICAL]
A. NATURE
- A voluntary strike - An involuntary
because
the strike; the labor
employee
will organization
is
declare a strike to forced to go on
compel management strike because of
to grant its demands. the
ULP
committed
against them by
the employer. It is
an act of selfdefense since the
employees
are
being pushed to
the wall and their
only remedy is to
stage a strike.
B. INITIATED BY:
The
collective - either
bargaining agent of a.
Collective
the
appropriate bargaining agent
bargaining unit can or
declare an economic b. the legitimate

strike.

labor organization
in behalf of its
members
C. COOLING OFF PERIOD
-30 days from the
filing of the notice of
strike before the -15 days from the
intended date of filing
of
the
actual strike subject notice of strike.
to the 7-day strike
ban.
D. EXCEPTION TO THE COOLING-OFF
PERIOD
- No exception - the cooling off
period
may
be
mandatory.
- Notice of strike
and
strike
vote
maybe
dispensed
with.
They
may
strike immediately.

dispensed with, and


the union may take
immediate action in
case of dismissal
from employment of
their officers duly
elected
in
accordance with the
unions Constitution
and By-laws, which
may
constitute
union
busting
where
the
existence of the
union
is
threatened.
- BUT it must still
observe
the
mandatory
7-day
period before it
can stage a valid
strike.

E. STRIKE DURATION PAY IN CASE OF A


LEGAL STRIKE
- not entitled to said
pay based on the
principle that a fair
days wage accrues
only for a fair days
labor

- may be awarded
the said paid in the
discretion of the
authority deciding
the case.

CHARACTERISTICS OF STRIKES:
1. there must be an established relationship between the strikers and the person/s against
whom the strike is called
2. the relationship must be one of employer and employee
3. the existence of a dispute between the parties and the utilization by labor of the
weapon of concerted refusal to work as a means of persuading or coercing compliance with the
working mens demands
4. the contention advanced by the workers that although the work ceases, the
employment relation is deemed to continue albeit in a state of belligerent suspension

5. there is work stoppage, which stoppage is temporary


6. the work stoppage is done through the concerted action of the employees
7. the striking group is a legitimate labor organization, and in case of bargaining deadlock,
is the employees sole bargaining representative.
TESTS IN DETERMINING THE LEGALITY OF A STRIKE:
1. Purpose Test
2. Compliance with Procedural and substantive requirements of law
3. Means employed test
1. PURPOSE TEST - The strike must be due to either
- bargaining deadlock and/or
- unfair labor practice.
2. COMPLIANCE WITH PROCEDURAL & SUBSTANTIVE REQUIREMENTS OF LAW to wit (a-d):
a. notice of strike
b. 30/15-day cooling-off period before
7-day strike ban.

the intended date of actual strike subject to the

COOLING OFF PERIOD - that period of time given the NCMB to mediate and conciliate the
parties.
It is that span of time allotted by law for the parties to settle theirdisputes in a
peaceful manner, before staging a strike or lockout.
c. strike vote
STRIKE VOTE - a requirement wherein the decision to declare a strike must be:
1. approved by a MAJORITY of the total union membership in the bargaining unit
concerned [not of the whole bargaining unit],
2. obtained by SECRET BALLOT
in MEETINGS OR REFERENDA called for the purpose.
PURPOSE OF A STRIKE VOTE: - to ensure that the intended strike is a majority decision
The report on the strike vote must be submitted to the DOLE at least 7 days
before the intended strike subject to the cooling-off period.

d. 7-day strike ban


7-DAY STRIKE BAN it is the 7 day waiting period before the date of the purported strike
[within which the union intending to conduct a strike must at least submit a report to the
Department as to the result of the strike vote] intended to give the Department an opportunity
TO VERIFY whether the projected strike really carries the imprimatur of the majority of the
union members in addition to the cooling off period before actual strike.
3. MEANS EMPLOYED TEST-A strike may be legal at its inception but eventually be declared
illegal if the strike is accompanied by violence which violence is widespread, pervasive and
adopted as a matter of policy and not merely violence which is sporadic which normally
occur in a strike area [see prohibited activities under art. 264].
NOTE: The 3 tests must concur. Non-compliance with any of the aforementioned requisites
renders the strike illegal.

EFFECT OF GOOD FAITH OF STRIKERS ON LEGALITY OF STRIKE - A strike may be


considered legal where the union believed that the company committed ULP and the
circumstances warranted such belief in good faith, although subsequently such allegations of
ULP are found out as not true. (Bacus vs. Ople)
TOTALITY DOCTRINE - the culpability of an employers remarks are to be evaluated not
only on the basis of their implicit implications but are to be appraised against the background
of and in conjunction with collateral circumstances.
Under this doctrine expressions of opinion by an employer which, though innocent in
themselves, frequently were held to be culpable because:
a. of the circumstances under which they were uttered
b. the history of the particular employers labor relations of anti-union bias or
c. because of their connection with an established collateral plan of coercion or
interference.
WHEN CAN THE SEC. OF LABOR ASSUME JURISDICTION OVER A STRIKE?
1.there exists a labor dispute causing or likely to cause a strike or lockout in a INDUSTRY
INDISPENSABLE TO THE NATIONAL INTEREST,
2.the Secretary of Labor and Employment may:
a. decide it, or
b. certify the same to the NLRC for COMPULSORY ARBITRATION.
NOTE: What constitutes indispensable industry is based solely upon the discretion of the
Secretary of Labor.
EFFECTS OF THE ASSUMPTION OF JURISDICTION OF THE SECRETARY
1. AUTOMATICALLY ENJOINS the intended or impending strike or lockout as specified in the
assumption or certification order;
2. 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
3. the employer shall immediately resume operations and READMIT ALL WORKERS under the
same terms and conditions prevailing before the strike or lockout.

A motion for reconsideration does not suspend the effects as the assumption order is
immediately executory.

ISSUES THAT THE SECRETARY OF LABOR CAN RESOLVE WHEN HE ASSUMES


JURISDICTION OVER A LABOR DISPUTE:
c.

Only issues submitted to the Secretary may be resolved by him. (PAL vs. Sec. of Labor,
23 January 1991).

d.

Issues submitted to the Secretary for resolution and such issues involved in the labor
dispute itself. (St. Scholasticas College vs. Torres; 29 June 1992)

e.

Secretary of Labor may subsume pending labor cases before Labor Arbiters which are
involved in the dispute and decide even issues falling under the exclusive and original
jurisdiction of labor arbiters such as the declaration of legality or illegality of strike.
(Intl Pharmaceuticals vs. Sec of Labor; 09 January 1992).

f.

Power of Sec. of Labor is plenary and discretionary. (St. Lukes Medical Center vs. Torres;
29 June 1993; reiterated in PAL vs. Confesor; 10 March 1994).

IN CASE THE STRIKE IS DECLARED LEGAL, ARE THE STRIKERS ENTITLED TO STRIKE
DURATION PAY?
GENERAL RULE: Strikers are not entitled to their wages during the period of a strike, even
if the strike is legal.
EXCEPTIONS:
1.

In case of a ULP STRIKE, in the discretion of the authority deciding the case [see table for
more distinction bet. Economic and ULP strike]

2.

Where the strikers VOLUNTARILY AND UNCONDITIONALLY OFFERED TO RETURN TO


WORK, but the employer refused to accept the offer [e.g. of an unconditional offer:
we will return tomorrow and NOT willing to return provided]

They are entitled to backwages from the date the offer was made

3. Where there is RETURN-TO-WORK ORDER and the


-

employees are discriminated against.

They are entitled to backwages from the date of discrimination.

RULE ON REINSTATEMENT OF STRIKING WORKERS:


GENERAL RULE : Striking employees are entitled to reinstatement, regardless of whether
or not the strike was the consequence of the employers ULP
REASON: because while out on strike, the strikers are not considered to have abandoned
their employment, but rather have only ceased from their labor.

The declaration of a strike is NOT a renunciation of employment relation.

EXCEPTIONS - The following strikers are NOT entitled to reinstatement:


1. Union officers who knowingly participate in an illegal strike; and
2. any striker/union member who knowingly participates in the commission of illegal acts
during the strike.

Those union members who joined an illegal strike but have not committed any illegal
act shall be reinstated but without any backwages.

RULE IN STRIKES IN HOSPITALS


1. It shall be the duty of striking employees or locking-out employer to provide and maintain
an effective SKELETAL WORKFORCE of medical and other health personnel for the duration
of the strike or lockout.
2. SECRETARY OF LABOR MAY IMMEDIATELY ASSUME JURISDICTION WITHIN 24 HOURS FROM
KNOWLEDGE of the occurrence of such strike or lock-out or certify it to the Commission for
compulsory arbitration.
ART. 264. PROHIBITED ACTIVITIES
LABOR ORGANIZATIONS
1. 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 Art. 263 or

without the necessary strike or lockout vote first having been obtained and
reported to the Department.
NO strike or lockout shall be declared:
a. AFTER assumption of jurisdiction by the President or the Secretary or
b. AFTER certification or submission of the dispute to compulsory or voluntary
arbitration or
c. DURING the pendency of cases involving the same grounds for the strike or lockout.
THIRD PERSONS
2. NO person [3rd persons] all 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 of selfor collective bargaining or

shall aid or abet such obstruction or interference.

organization

EMPLOYERS
3.

NO employer shall use or employ any STRIKE-BREAKER nor shall any person be employed as
a strikebreaker.
PUBLIC OFFICIAL OR EMPLOYEE

4.

NO public official or employee, including officers and personnel of the New Armed Forces
of the Philippines of the Integrated National Police, or armed persons,

shall bring in, introduce or


escort in any manner, any individual who seeks to
replace strikes in entering or leaving the premises of a strike area, or work in
place of the strikers.

The police force shall keep out of the picket lines unless actual violence or other
criminal acts occur therein:

Provided, That nothing herein shall be interpreted to prevent any public officers from
taking any measure necessary to:
a. maintain peace and order,
b. protect life and property, and/or
c. enforce the law and legal order.

PERSONS ENGAGED IN PICKETING


NO person engaged in PICKETING shall:
a. commit any act of violence, coercion or

intimidation or

b. obstruct the free ingress to or egress from the employers premises for lawful
purposes,or
c. obstruct public thoroughfares
ART. 265. IMPROVED OFFER vs. REDUCED OFFER BALLOTING
IMPROVED OFFER
BALLOTING
1. a referendum
conducted by the NCMB
on or before the 30th day
of the strike, for the
purpose of determining
whether or not the
improved offer of the
employer is acceptable
to the union members.

PURPOSE
2. to determining
whether or not the
improved offer of the
EMPLOYER is acceptable
to the union members.
to ascertain the
real sentiment of
the silent majority
of
the
union
members on strike.

PERIOD OF FILING
3. on or before the
30th day of the strike

REDUCED
OFFER
BALLOTING
1.
a
referendum
conducted by the
NCMB for the
purpose
of
determining
whether or not
the
reduced
offer
of
the
union
is
acceptable
to
the board of
directors,
trustees
or
partners.
2.
to
determining
whether or not
the
improved
offer
of
the
UNION
is
acceptable
to
the
union
members.
to ascertain
the
real
sentiment of the
silent majority of
the
union
members
on
strike.
3.
on or
before the 30th
day
of
the
lockout

LIMITATION
4.
applies
economic
(deadlock)

only to
strikes

4.
applies
only to economic
strikes-deadlock
in
bargaining
(lockout)

ART. 266. ARREST AND DETENTION

General rule is that a police officer cannot arrest or detain a union member for union

activities without previous consultations with the Secretary of Labor EXCEPT on grounds of:
a.
national security
b.

public peace

c.

commission of a crime

BOOK SIX
POST EMPLOYMENT
TITLE I
TERMINATION OF
EMPLOYMENT
ART. 279. SECURITY OF TENURE
SECURITY OF TENURE - the constitutional right granted the employee, that the employer
shall not terminate the services of an employee except for just cause or when authorized by
law.
RELIEFS AVAILABLE TO AN ILLEGALLY DISMISSED EMPLOYEE:

A. REINSTATEMENT - Restoration of the employee to the state from which he has been
unjustly removed or separated without loss of seniority rights and other privileges.
1.
2.

FORMS OF REINSTATEMENT:
ACTUAL OR PHYSICAL REINSTATEMENT
- the employee shall be admitted back to work
PAYROLL REINSTATEMENT
- the employee is merely reinstated in the payroll.
May a court order the reinstatement of a dismissed employee even if the prayer of
the complaint did not include such relief?
YES. So long as there is a finding that the employee was illegally dismissed, the court can
order the reinstatement of an employee even if the complaint does not include a prayer for
reinstatement, unless, of course, the employee has waived his right to reinstatement. By law,
an employee who is unjustly dismissed is entitled to reinstatement, among others. The mere
fact that the complaint did not pray for reinstatement will not prejudice the employee,
because technicalities of law and procedure are frowned upon in labor proceedings (General
Baptist Bible College v. NLRC; 219 SCRA 549).
What happens if there is an order of reinstatement but the position is no longer
available?

The employee should be given a SUBSTANTIALLY EQUIVALENT POSITION. If NO


SUBSTANTIALLY EQUIVALENT POSITION IS AVAILABLE, reinstatement should not be ordered
because that would in effect compel the employer to do the impossible. In such a situation, the
employee should merely be given SEPARATION PAY CONSISTING OF ONE MONTH SALARY FOR
EVERY YEAR OF SERVICE (1:1).
CIRCUMSTANCES WHEN COMPANY MAY NOT REINSTATE DESPITE ORDER OF
REINSTATEMENT
1. TRANSFER OF BUSINESS OWNERSHIP -There is no law requiring a purchasing corporation to
absorb the employees of the selling corporation. A fortiori, reinstatement of unjustly
dismissed employees CANNOT be enforced against the new owner UNLESS there is an
express agreement on the assumption of liabilities by the purchasing corporation;
2. When reinstatement is rendered IMPOSSIBLE due to the abolition of the position;
3. When the business has CLOSED DOWN;
4. PHYSICAL INCAPACITY of the employee; and
5. DOCTRINE OF STRAINED RELATIONS - When the employer can no longer trust the
employee and vice-versa, reinstatement could not effectively serve as a remedy. This
doctrine only applies only to positions which require trust and confidence
- Under the circumstances where the employment relationship has become so
strained to preclude a harmonious working relationship, and that all hopes at
reconciliation are nil after reinstatement, it would be more beneficial to accord the
employee backwages and separation pay.
B. BACKWAGES the relief given to an employee to compensate him for lost earnings
during the period of his dismissal.
PERIOD COVERED BY THE PAYMENT OF BACKWAGES - Backwages shall cover the period
from the date of dismissal of the employee up to the date of actual reinstatement
HOW COMPUTED - Under existing law, backwages is computed from the time of the
illegal dismissal up to time of actual reinstatement.
INCLUDED IN THE COMPUTATION OF BACKWAGES
1. transportation and emergency allowances
2. vacation or service incentive leave and sick leave
3. 13th month pay.
NOTE: facilities such as uniforms, shoes, helmets and ponchos should NOT be included in
the computation of backwages.
REASON: said items are given free, to be used only during official tour of duty not for
private or personal use.
CIRCUMSTANCES THAT PREVENT AWARD OF BACKWAGES:
1. death of the employee
2. physical and mental incapacity
3. business reverses
4. closure of business
5. reinstatement of dismissed employee
confinement in jail
Which takes precedence in conflicts arising between employers MANAGEMENT
PREROGATIVE and the employees right to security of tenure?
The employees right to security of tenure. Thus, an employers management
prerogative includes the right to terminate the services of the employee but this management

prerogative is limited by the Labor Code which provides that the employer can terminate an
employee only for a just cause or when authorized by law. This limitation is because no less
than the constitution recognizes and guarantees employees right to security of tenure. (Art.
279, Labor Code; Art. XIII, Sec. 3, Constitution)
ART. 280. REGULAR AND CASUAL EMPLOYMENT
REGULAR EMPLOYMENT - one wherein an employee is engaged to perform activities which are
usually necessary or desirable in the usual business or trade of the employer.
- He is a regular employee at the point of hiring.
Test of regularity: nature of employment.
CASUAL EMPLOYMENT one wherein an employee is engaged to perform activities which are
not necessary or desirable in the usual trade or business of the employer.
- becomes a regular employee after one (1) year of service.
REGULAR EMPLOYEE
VS.
PROJECT EMPLOYEE

PROJECT
EMPLOYEE

REGULAR
EMPLOYEE

A project employee is
one
whose
employment is fixed
for a specific project
or undertaking the
completion of which
has been determined
at the time of the
engagement of the
employee. (See Art.
280 LC)

A
regular
employee
is
one
engaged to perform
activities which are
usually necessary or
desirable in the usual
business or trade of
the employer

TEMPORARY EMPLOYMENT OR EMPLOYMENT FOR A FIXED SPECIFIC PERIOD - one


wherein an employee is engaged to work on a specific project or undertaking which is usually
necessary or desirable in the usual business or trade of the employer, the completion of which
has been determined at the time of the engagement of the employee.
- He does not become a regular employee. The employment is coterminous with the specific
period.
SEASONAL EMPLOYMENT - one wherein an employee is engaged to work during a
particular season on an activity that is usually necessary or desirable in the usual business or
trade of the employer.
Pakiao employees are considered employees as long as the employer exercises control
over the means by which such workers are to perform their work.

Employee is considered an regular employee insofar as the season to which he was


employed is concerned.
- during the off-season his employment is merely suspended not terminated (Phil.
Tobacco Flue Curring and Drying Corp. vs. NLRC).

PROBATIONARY PERIOD OF EMPLOYMENT - the period needed to determine the fitness


for the job, i .e., the time needed to learn the job.

It is the period during which the employer may determine if the employee is qualified
for possible inclusion in the regular force.
PURPOSE: To afford the employer an opportunity to observe the fitness of a probationary
employee at work.
NOTE:The standard which the probationary employee is to meet must be made known by
the employer to the employee at the time of engagement. The services of probationary
employees may be terminated for the same causes as in the case of regular employee, except
that there is an additional ground failure to meet the standard.
LIMITATIONS ON THE EMPLOYERS POWER TO TERMINATE A PROBATIONARY
EMPLOYMENT CONTRACT:
1. the power must be exercised in accordance with the specific requirements of the
contract [COMPLIANCE WITH SPECIFIC REQUIREMENTS];
2.if a particular time is prescribed, the termination must be within such time and if formal
notice is required, then that form must be used [WITHIN PARTICULAR PRESCRIBED TIME];
3.the employers dissatisfaction must be real and in good faith, not feigned so as to
circumvent the contract or the law [DISSATISFACTIONREAL AND IN GOOD FAITH]; and
4.there must BE NO UNLAWFUL DISCRIMINATION in the dismissal.
GENERAL RULE: Probationary employment shall not exceed six months from the date the
employee started working.
EXCEPTIONS:
1. when it is covered by an apprenticeship agreement stipulating a longer period; or
2. when the parties to an employment contract agree otherwise, such as when the same
is established by company policy or when the same is required by the nature of the work to be
performed by the employee
EFFECT IF PROBATIONARY EMPLOYEE IS ALLOWED TO WORK BEYOND 6 MONTHS
If the probationary employee is allowed to work beyond the period of 6 months or the
agreed probationary period, said employee becomes a regular employee by operation of law.
Under the Labor Code, an employee who is allowed to work after a probationary period
shall be considered a regular employee. (Art. 281.)
ART. 282. TERMINATION BY EMPLOYER
SECURITY OF TENURE - An employer CANNOT terminate the services of an employee
EXCEPT for a just cause or when authorized by law.
GUIDELINES TO DETERMINE THE VALIDITY OF TERMINATION:
1. Gravity of the offense
2. Position occupied by the employee
3. Degree of damage to the employer
4. Previous infractions of the same offense
5. Length of service
A. JUST CAUSES [MaNaBaCA]:
1. Serious MISCONDUCT OR WILLFUL DISOBEDIENCE by the employee of the lawful orders of his
employer or representative in connection with his work;
Misconduct- transgression of some established and definite rule of action, a forbidden
act, a dereliction of duty, willful in character, and implies wrongful intent and not
mere error in judgment. (Dept. of Labor Manual, Sec. 4353.01)
2. Gross and habitual NEGLECT by the employee of his duties; (Repeated absenteeism and
tardiness)

3. FRAUD OR WILLFUL BREACH by the employee of the trust reposed in him by his employer or
duly organized representative
Fraud must be committed against the employer or his representative and in connection
with the employees work. ((Dept. of Labor Manual, Sec. 4353.01 [3])
4. 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
Conviction or prosecution is not required.
5. Other causes ANALOGOUS to the foregoing.
A cause must be due to the voluntary or willful act or omission of the employee.
(Nadura v. Benguet Consolidated; G.R. No. L-17780)
DUE PROCESS TO BE OBSERVED BY THE EMPLOYER - For termination of the employment
based on the any of the just causes for termination, the requirements of due process that an
employer must comply with are: (TWIN NOTICES)
1. Written NOTICE should be served to the employee specifying the ground or grounds for
termination and giving the said employee reasonable opportunity within which to
explain;
2. A HEARING OR CONFERENCE should be held during which the employee concerned, with
the assistance of counsel, if the employee so desires, is given the opportunity to respond
to the charge, present his evidence and present the evidence presented against him;
3. A WRITTEN NOTICE OF TERMINATION, if termination is the decision of the employer,
should be 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 based on authorized causes, the requirements of
due process shall be deemed complied with upon service of a written notice to the
employee and the appropriate Regional office of the Department of Labor and
employment at least thirty days before the effectivity of the termination specifying the
grounds for termination.
NOTE: Under the so-called WENPHIL DOCTRINE if the services of the employee was
terminated due to a just or authorized cause but the affected employees right to due process
has been violated, the dismissal is legal but the employee is entitled to damages by way of
indemnification for the violation of the right.

SERRANO vs. ISETANN et. al. abandoned the WENPHIL DOCTRINE and ruled that if the
employee is dismissed under just or authorized cause but the affected employees
right to due process has been violated, his dismissal becomes ineffectual. Therefore,
the employee is entitled to backwages from the time he was dismissed until the
determination of the justness of the cause of the dismissal.

AGABON vs. NLRC (Nov. 17, 2004) abandoned the Serrano doctrine and REINSTATED
THE WENPHIL DOCTRINE. The sanctions, however must be stiffer than that imposed in
Wenphil.

PREVENTIVE SUSPENSION when there is an imminent threat to the lives and properties of
the employer, his family and representatives as well as the offenders co-workers by the
continued service of the employee then he may be placed under preventive suspension pending
his investigation, leading to termination.

preventive suspension should not last for more than thirty (30) days. The employee
should be made to resume his work after 30 days.

it can be extended provided the employees wages are paid after the 30 day period.
ARTS. 283-284.
B. AUTHORIZED CAUSES OF TERMINATION BY THE EMPLOYER:

1. installation of labor-saving devices (AUTOMATION)

2. REDUNDANCY (superfluity in the performance of a particular work)

redundancy, for purposes of the Labor Code, exists where the services of an employee
are in excess of what is reasonably demanded by the actual requirements of the
enterprise. (Wishire File Co. Inc. vs. NLRC)

Reorganization as a cost-saving device is acknowledged by jurisprudence. An employer


is not precluded from adopting a new policy conducive to a more economical and
effective management, and the law does not require that the employer should be
suffering financial losses before he can terminate the services of the employee on the
ground of redundancy (DOLE PHILIPPINES, INC et al., vs. NATIONAL LABOR RELATIONS
COMMISSION et al.)

3. RETRENCHMENT to prevent losses (there is excess of employees and employer wants to


prevent financial losses)
CONDITIONS UNDER WHICH AN EMPLOYER MAY RETRENCH:
(a) substantial losses which are not merely de minimis in extent;
(b) imminence of such substantial losses;
(c) retrenchment would effectively prevent the expected and additional losses;
(d) the alleged losses and expected losses must be proven by sufficient and convincing
evidence. (NDC-GUTHRIE PLANTATIONS, INC., vs. NATIONAL LABOR RELATIONS COMMISSION, ET. AL)
4. closing or CESSATION OF OPERATION of the establishment or undertaking UNLESS the
closing is for the purpose of circumventing the provisions of the Labor Code.
5. INSTALLATION of labor saving devices(Automation, Robotics)
6. DISEASE
a. the disease is incurable within 6 months and the continued employment of the
employee is prohibited by law or prejudicial to his health as well as to the health
of his co-employees
b. with a certification from public heath officer that the disease is incurable within 6
months despite due medication and treatment.
Before an employer could dismiss an employee based on a disease, Section 8 of Rule 1,
Book VI of the Omnibus Rules Implementing the Labor Code requires 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 even with proper medical treatment.
(Cathay Pacific Airways vs. NLRC and Martha Singson)

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.
(SEC. 35, RA 8504, HIV/AIDS LAW)

CAUSE OF
TERMINATION
Automation

Redundancy

Retrenchment

Closures or
cessation
of
operations
not
due to serious
business losses or
financial reverses

Disease

SEPARATION PAY
Equivalent to at
least one month pay or
at least one month pay
for every year of
service, whichever is
higher
Equivalent to at
least one month pay or
at least one month pay
for every year of
service, whichever is
higher
Equivalent to one
month pay or at least
one-half month pay for
every year of service
Equivalent to one
month pay or at least
one-half month pay for
every year of service
(If due to severe
financial losses, no
separation pay due.)
Equivalent to at
least one-month 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.

NOTE: ARTICLE 283 governs the grant of separation benefits in case of closures or
cessation of operation of business establishments NOT due to serious business losses or
cessation of operation [North Davao Mining Corp. vs. NLRC, et al]. Therefore, the employee is
not entitled to such benefit if the closure was due to SERIOUS BUSINESS LOSSES.
When termination of employment is brought by the failure of an employee to meet the
standards of the employer in 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.

When termination is brought about by the completion of the contract or phase thereof,
no prior notice is required

ART. 285. TERMINATION BY EMPLOYEE


TERMINATION BY THE EMPLOYEE:
a. WITHOUT JUST CAUSE- by serving a WRITTEN NOTICE on the employer at least one month in
advance. The employer upon whom no such notice was served may hold the employee liable for
damages.
b. WITH JUST CAUSE - An employee may put an end to establish WITHOUT SERVING ANY NOTICE
on the employer for any of the following just causes [SUCA]:
1. SERIOUS INSULT by the employer or his representative on the hour 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.
ART. 287. RETIREMENT
RETIREMENT AGE - The age of retirement is that specified in the CBA or in the
employment contract. In the absence of a retirement plan or agreement providing for
retirement benefits of employees in an establishment, an employee upon reaching the age of
60 years or more, but not beyond 65 years which is hereby declared as the compulsory
retirement age, who has served at least 5 years in said establishment.
The rule is different with respect to underground mining employees whose optional
retirement age is 50-60 provided they have at least served for a period of 5 years (Art.
287 as amended by RA 8558).
BENEFITSA retiree is entitled to a retirement pay equivalent to at least 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:
15 days plus 1/12 of the 13th month pay and
the cash equivalent of NOT more than 5 days of service incentive leaves.
(22.5 days per year of service)
Under Section 26, R.A. No. 4670, otherwise known as the Magna Carta for Public School
Teachers, public school teachers having fulfilled the age and service requirements of the
applicable retirement laws shall be given ONE RANGE SALARY RAISE upon retirement, which
shall be the basis of the computation of the lump sum of the retirement pay and the monthly
benefit thereafter.

NOTE: Exempted from the payment of retirement pay are retail, service and agricultural
establishments or operations employing NOT more than ten (10) employees or workers.
Age
60-65

Retirement
Optional
but
the
employee must have served
at least 5 years

65

Compulsory (no need


for five years of service)

BOOK SEVEN
TRANSITORY AND FINAL PROVISIONS

PRESCRIPTION OF OFFENSES AND CLAIMS

TITLE II

ART. 291. MONEY CLAIMS


PERIODS OF PRESCRIPTION
Cause
MONEY
CLAIMS
ULP
ILLEGAL
DISMISSAL
REINSTA
TEMENT

Period
of
Prescription
3 years from the
accrual of the causes of
action
1 year from the
accrual of the cause of
action
4 years from the
accrual of the cause of
action
4 years

NOTE: The period of prescription mentioned under Article 292 of the Labor Code refers to
and is limited to money claims, all other cases of injury to rights of a workingman being
governed by the Civil Code. Hence, REINSTATEMENT prescribes in 4 years.
VENUE: The Regional Arbitration Branch where the workplace is located (NLRC Rules of
Procedure.