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LABOR
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RELATIONS
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NOTES IN LABOR RELATIONS

BATCH SINE QUA NON

July 5, 2014

Labor Relations
Art 218: Declaration of Policy
A. It is the policy of the State:
(a) To promote and emphasize the primacy of free collective bargaining and negotiations,
including voluntary arbitration, mediation and conciliation, as modes of settling labor or
industrial disputes;
(b) To promote free trade unionism as an instrument for the enhancement of democracy and
the promotion of social justice and development;
(c) To foster the free and voluntary organization of a strong and united labor movement;
(d) To promote the enlightenment of workers concerning their rights and obligations as union
members and as employees;
(e) To provide an adequate administrative machinery for the expeditious settlement of labor or
industrial disputes;
(f) To ensure a stable but dynamic and just industrial peace; and
(g) To ensure the participation of workers in decision and policy-making processes affecting
their rights, duties and welfare.
B. To encourage a truly democratic method of regulating the relations between the employers and
employees by means of agreements freely entered into through collective bargaining, no court or
administrative agency or official shall have the power to set or fix wages, rates of pay, hours of
work or other terms and conditions of employment, except as otherwise provided under this code.
Notes:
This article minimizes government intervention in the settlement the labor disputes.
The State prefers that labor disputes, including the setting of terms and conditions of employment, be left to
the parties to be settled through peaceful negotiations and collective bargaining.
Therefore, resort to grievance machinery and voluntary arbitration are preferred modes of settling labor
disputes.
In case of conflict between employer and labor organization, the settlement should be peaceful negotiations.
The preferred modes are grievance machinery and voluntary arbitration and not compulsory arbitration.
Art 217 mentioned Conciliation, Mediation and Voluntary Arbitration which are considered alternative modes of
settlement of labor disputes or alternative to a more adversarial strike, lockout or any concerted action.
(Memorize!!!)
Conciliation is a process where the disinterested third party meets with the management and the workers
at the request or otherwise during a labor dispute or in collective bargaining conferences and aids in reaching
an agreement.
Mediation is when a third party studies each side of the dispute, then makes proposal for the disputants to
consider but a mediator cannot make an award or render a decision.
Voluntary Arbitration is the submission of the dispute to an impartial person for determination on the basis
of evidence and arguments submitted by the parties.
Voluntary Arbitrators decision is binding upon disputants and enforceable between them.
Arbitration can either be:
Voluntary (preferred mode in arbitration)
Compulsory (ex. Filing a case with the labor arbiter)
Jurisdiction over labor cases:
RTC (Regional Trial Courts) no jurisdiction
LA (Labor Arbiter) has jurisdiction (this is an example of compulsory arbitration w/c is not a
preferred mode.)
Art.224 Jurisdiction of Labor Arbiters and the Commission
(a) Except as otherwise provided under this Code the Labor Arbiters shall have original and
exclusive jurisdiction to hear and decide, within thirty (30) calendar days after the submission
of the case by the parties for decision without extension, even in the absence of stenographic
notes the following cases involving all workers, whether agricultural or non-agricultural:
1. Unfair labor practices cases (ULP)
2. Termination disputes
3. If accompanied with a claim for reinstatement, those cases that workers may file involving
wages, rates of pay, hours of work and other terms and conditions of employment;
4. Claims for actual, moral, exemplary and other forms of damages arising from the
employer-employee relations;
5. Cases arising from any violation of Article 278 of this Code, including questions involving
the legality of strikes and lockouts;

NOTES IN LABOR RELATIONS

BATCH SINE QUA NON

6. Except claims for Employees Compensation, Social Security, Medicare and maternity
benefits, all other claims, arising from employer-employee relations, including those of
persons in domestic or household service, involving an amount exceeding five thousand
pesos (P5,000.00) regardless of whether accompanied with a claim for reinstatement.
(b) The Commission shall have exclusive appellate jurisdiction over all cases decided by Labor
Arbiters.
(c) Cases arising from the interpretation of collective bargaining agreements and those arising
from the interpretation or enforcement of company personnel policies shall be disposed of by
the Labor Arbiter by referring the same to the grievance machinery and voluntary arbitration
as may be provided in said agreements.
Notes:
Cases enumerated in this article are under the original and exclusive jurisdiction of the Labor Arbiter.
But actually this is not exclusive w/ the Labor Arbiter. Why? Because by agreement of the parties, this can be
transferred to voluntary arbitrator or panel of voluntary arbitrators for settlement.
Art. 274. Jurisdiction over Other Labor Disputes
The voluntary arbitrator or panel of voluntary arbitrators, upon agreement of the parties, shall also
hear and decide all other labor disputes including unfair labor practices and bargaining deadlocks.
Notes:
Again, Art 224 enumerates cases under the original and exclusive jurisdiction of the Labor Arbiter but because
the State prefers the settling of labor dispute among parties, such cases can be heard and decided before voluntary
arbitrators or panel of voluntary arbitrators upon agreement of the parties as provided by Art 274.
BAR QUESTIONS: ( set 1 Nos. 1-4)
.
Distinguish the terms conciliation, mediation and arbitration(2010)
Answer:
Conciliation is a process where the disinterested third party meets with the management and the workers
at the request or otherwise during a labor dispute or in collective bargaining conferences and aids in reaching
an agreement.
Mediation is when a third party studies each side of the dispute, then makes proposal for the disputants to
consider but a mediator cannot make an award or render a decision.
Voluntary Arbitration is the submission of the dispute to an impartial person for determination on the basis
of evidence and arguments submitted by the parties.
The state has a policy of promoting collective bargaining and voluntary arbitration as modes of settling labor
disputes. To this end, the voluntary arbitrators jurisdiction has not been limited to interpretation and
implementation of collective bargaining agreement and company personnel policies. It may extend to all other
labor disputes, provided: (2011)
a) The extension does not cover cases of union busting
b) The parties agreed to such extended jurisdiction
c) The parties are allowed to appeal the voluntary arbitrators decision
d) Thee parties agreed in their CBA to broaden his jurisdiction
The constitution promotes the principle of shared responsibility between the workers and employers preferring the
settlement of disputes through,
a) Compulsory arbitration
b) Collective bargaining
c) Voluntary modes, such as conciliation and mediation
d) Labor management councils
This process refers to the submission of the dispute to an impartial person for determination on the evidence and
arguments of the parties. The award is enforceable to the disputants
a) Arbitration
b) Mediation
c) Conciliation
d) Reconciliation
Take note of Declaration of Policy, the state prefers alternative mode of settlement.
Compulsory Filed before Labor Arbiter & NLRC
Voluntary Filed before voluntary arbitrators or panel of voluntary arbitrators.

NOTES IN LABOR RELATIONS

BATCH SINE QUA NON

Even though the law provides that ULP and Termination Disputes are under the jurisdiction (original and
exclusive) of the Labor Arbiter, by agreement of the parties this can be heard by voluntary arbitrators or panel of
voluntary arbitrators because this is the preferred mode of settlement of labor disputes.
Art. 219 Definitions of Terms-(Page 18 of the Book)
Take note of the definitions of the following terms:
Employer includes any person acting in the interest of an employer, directly or indirectly. The term
shall not include any labor organization or any of its officers or agents except when acting as
employer.
Notes:
D.O. 40-03:
"Employer" refers to any person or entity who employs the services of others, one for whom
employees work and who pays their wages or salaries. An employer includes any person directly or indirectly
acting in the interest of an employer. It shall also refer to the enterprise where a labor organization operates or
seeks to operate.
The definition is broad under the law. It does not require the same to be registered. Labor organization
may be deemed as employer when it is acting as such in relation to persons and rendered services under
hire, particularly in connection with its activities for profit or gain.

Employee includes any person in the employ of an employer. The term shall not be limited to the
employees of a particular employer, unless this code so explicitly states. It shall include any individual
whose work has ceased as a result of or in connection with any current labor dispute or because of
any unfair labor practice if he has not obtained any other substantially equivalent and regular
employment.
Notes:
D.O. 40-03:
Employee refers to any person working for an employer. It includes one whose work has ceased in
connection with any current labor dispute or because of any unfair labor practice and one who has been
dismissed from work but the legality of the dismissal is being contested in a forum of appropriate jurisdiction.
Refer to any person working for an employer. It includes one whose work has cease in connection
with any current labor dispute or because of any unfair labor practice if he has not obtained any other
substantially equivalent regular employment.
Substantially equivalent employment means a job similar to that which the employee held at the time
of his dismissal. The determining factor is not the amount of compensation received by the employee but the
nature of the job and the career that it can offer the employee
What is the relevance of this definition?
Bsan pa ang empleyado natangtang na sa trabaho pero ni file pa sya ug kaso contesting the legality
of his dismissal, still if there is ULP committed by the employer against him/her, he can still file a case
of ULP kay empleyado pa man sya under the law/definition.
So the employee can still file an action predicated against an unfair labor practice committed by the
employer because he is still considered an employee and still protected against unfair labor practices.

Kay nganu man?


Sa ULP class, usa sa mga essential requisites sa ULP kinahanglan dunay employer employee
relationship.
So ikaw empleyado natangtang sa trabaho but you file a case contesting the legality of your
dismissal, bisan natangtang naka empleyado gihapun ka under the law and under the
definition.
Therefore if the employer commits ULP against you makafile gihapun ka ug ULP, because technically
you are still an employee therefore, employer-employee relationships
still exist.
The participation of an employee in a strike does not remove him from the status as
employee.
Thus, in an action which is predicated upon ULP committed by the employer after
the commencement of the
strike, the cause is nevertheless held be actionable on the
strikers behalf on the theory that he is still an
employee, therefore he is entitled to the protection against unfair labor practice.
Cessation of work due to strike or lockout or to dismissal or suspensions constituting
unfair labor
practices, does not itself affect the employee status in the sense that the rights and benefits of the employee are
protected as though there had been no interruption of
service, effective upon actual return to work.
Thus, a striker may not be deprived of a bonus merely because he had taken part in a
strike.

NOTES IN LABOR RELATIONS

BATCH SINE QUA NON

Labor Dispute includes any controversy or matter concerning terms or conditions of employment or
the association or representation of persons in negotiating, fixing, maintaining, changing or arranging
the terms and conditions of employment, regardless of whether the disputants stand in the proximate
relation of employer and employee.
Notes:

Nganu importante man nga mahibawo ka unsay labor dispute?


Importante kay ang kaso nga under sa jurisdiction sa Labor Arbiter ug NLRC requires
that
there
must be a labor dispute.
For example, issuance of injunction or temporary restraining order.
Issuance of TRO and injunction is under the jurisdiction of the NLRC but only if there is a labor
dispute. Kung walay labor dispute, jurisdiction is not with the NLRC but with the RTC.
Example:
Employee of CM is on strike. They committed illegal acts during the strike such as
blockade.
Note that during the strike, employer is not prohibited to hire substitute to continue
its operation. However if the
strikers blocked the entrance and blocked the substitute from
entering, it is a violation.
There is a neighboring establishment. The strikers blocked the entrance which affects
the
neighboring establishment. What is the remedy of the neighboring establishment?
Answer:
They must file a TRO and Injunction para makaagi ila empleyado. The TRO and Injunction must be
filed w/ the RTC because there is no labor dispute between the strikers
and said neighboring establishment.

Illustrative Cases;
PAFLU vs. SALAS
RUSTANS vs. DALISAY

However, if CM wants to file a TRO and injunction, CM must file it in NLRC because there is
dispute between CM and the strikers.

labor

That is why it is important to take note of the definition of labor dispute.

"Managerial employee" is one who is vested with the powers or prerogatives to lay down and execute
management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline
employees. Supervisory employees are 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. All employees not falling within any of
the above definitions are considered rank-and-file employees for purposes of this Book.
NATIONAL LABOR RELATIONS COMMISION
ART. 220. National Labor Relations Commission. - There shall be a National Labor Relations Commission
which shall be attached to the Department of Labor and Employment SOLELY for program and policy
coordination only, composed of a Chairman and TWENTY-THREE (23) Members.
EIGHT (8) members each shall be chosen ONLY from among the nominees of the workers and employers
organizations, respectively. The Chairman and the SEVEN (7) remaining members shall come from the public
sector, with the latter to be chosen PREFERABLY from among the INCUMBENT LABOR ARBITERS.
"Upon assumption into office, the members nominated by the workers and employers organizations shall
divest themselves of any affiliation with or interest in the federation or association to which they belong.
"The Commission may sit en banc or in EIGHT (8) divisions, each composed of three (3) members. The
Commission shall sit en banc only for purposes of promulgating rules and regulations governing the hearing
and disposition of cases before any of its divisions and regional branches and formulating policies affecting
its administration and operations. The Commission shall exercise its adjudicatory and all other powers,
functions, and duties through its divisions. Of the EIGHT (8) divisions, the first, second third, FOURTH, FIFTH
AND SIXTH divisions shall handle cases coming from the National Capital Region and other parts of Luzon;
and the SEVENTH, AND EIGHT divisions, cases from the Visayas and Mindanao, respectively: Provided, That
the Commission sitting en banc may, on temporary or emergency basis, allow cases within the jurisdiction of
any division to be heard and decided by any other division whose docket allows the additional workload and
such transfer will not expose litigants to unnecessary additional expenses. The divisions of the Commission
shall have exclusive appellate jurisdiction over cases within their respective territorial jurisdiction.

NOTES IN LABOR RELATIONS

BATCH SINE QUA NON

"The concurrence of two (2) Commissioners of a division shall be necessary for the pronouncement of a
judgment or resolution. Whenever the required membership in a division is not complete and the concurrence
of two (2) Commissioners to arrive at a judgment or resolution cannot be obtained, the Chairman shall
designate such number of additional Commissioners from the other divisions as may be necessary.
"The conclusions of a division on any case submitted to it for decision shall be reached in consultation
before the case is assigned to a member for the writing of the opinion. It shall be mandatory for the division to
meet for purposes of the consultation ordained therein. A certification to this effect signed by the Presiding
Commissioner of the division shall be issued, and a copy thereof attached to the record of the case and
served upon the parties.
"The Chairman shall be the Presiding Commissioner of the first division, and the SEVEN (7) other members
from the public sector shall be the Presiding Commissioners of the second, third, fourth, fifth, sixth, seventh
and eight divisions, respectively. In case of the effective absence or incapacity of the Chairman, the Presiding
Commissioner of the second division shall be the Acting Chairman.
"The Chairman, aided by the Executive Clerk of the Commission, shall have administrative supervision over
the Commission and its regional branches and all its personnel, including the Labor Arbiters.
"The Commission, when sitting en banc, shall be assisted by the same Executive Clerk, and, when acting thru
its Divisions, by said Executive Clerk for its first division and SEVEN (7) other Deputy Executive Clerks for the
second, third, fourth fifth, sixth, seventh and eight divisions, respectively, in the performance of such similar
or equivalent functions and duties as are discharged by the Clerk of Court and Deputy Clerks of Court of the
Court of Appeals.
"The Commission and its eight (8) divisions shall be assisted by the Commission Attorneys in its Appellate
and adjudicatory functions whose term shall be coterminous with the Commissioners with whom they are
assigned. The Commission Attorneys shall be members of the Philippine Bar with at least one (1) year
experience or exposure in the field of labor-management relations. They shall receive annual salaries and
shall be entitled to the same allowances and benefits as those falling under Salary Grade twenty-six (SG 26).
There shall be as many Commission Attorneys as may be necessary for the effective and efficient operations
of the Commission but in no case more than three (3) assigned to the Office of the Chairman and each
Commissioner."
"No Labor Arbiter shall be assigned to perform the functions of the Commission Attorney nor detailed to the
office of any Commissioner."
"ART. 221. Headquarters, Branches and Provincial Extension Units . - The Commission and its first, second,
third, fourth, fifth and sixth divisions shall have their main offices in Metropolitan Manila, and the seventh and
eight divisions in the cities of Cebu and Cagayan de Oro, respectively. The Commission shall establish as
many regional branches as there are regional offices of the Department of Labor and Employment, subregional branches or provincial extension units. There shall be as many Labor Arbiters as may be necessary
for the effective and efficient operation of the Commission.
ART. 222. Appointment and Qualifications. - The Chairman and other Commissioners shall be members of the
Philippine Bar and must have been engaged in the practice of law in the Philippines for at least fifteen (15)
years, with at least five (5) years of experience or exposure in the field of labor-management relations, and
shall preferably be residents of the region where they SHALL hold office. The Labor Arbiters shall likewise be
members of the Philippine Bar and must have been engaged in the practice of law in the Philippines for at
least ten (10) years, with at least five (5) years of experience or exposure in THE FIELD OF labor-management
relations.
"The Chairman, and the other Commissioners and the Labor Arbiters shall hold office during good behavior
until they reach the age of sixty-five (65) years, unless sooner removed for cause as provided by law or
become incapacitated to discharge the duties of their office. Provided, however, That the President of the
Republic of the Philippines may extent the services of the Commissioners and Labor Arbiters up to the
maximum age of seventy (70) years upon the recommendation of the Commission en banc.

NOTES IN LABOR RELATIONS

BATCH SINE QUA NON

"The Chairman, the Division Presiding Commissioners and other Commissioners shall all be appointed by the
President. Appointment to any vacancy in a specific division shall come only from the nominees of the sector
which nominated the predecessor. The Labor Arbiters shall also be appointed by the President, upon
recommendation of the Commission en banc to a specific arbitration branch, preferably in the region where
they are residents, and shall be subject to the Civil Service Law, rules and regulations: Provided, that the
labor arbiters who are presently holding office in the region where they are residents shall be deemed
appointed thereat.
"The Chairman and the Commission, shall appoint the staff and employees of the Commission, and its
regional branches as the needs of the service may require, subject to the Civil Service Law, rules and
regulations, and upgrade their current salaries, benefits and other emoluments in accordance with law."
"ART. 223. Salaries, benefits and other emoluments. The Chairman and members of the Commission shall
have the same rank, receive an annual salary equivalent to, and be entitled to the same allowances, retirement
and benefits as, those of the Presiding Justice and Associate Justices of the Court of Appeals, respectively.
Labor Arbiters shall have the same rank, receive an annual salary equivalent to and be entitled to the same
allowances, retirement and other benefits and privileges as those of the judges of the regional trial courts. In
no case, however, shall the provision of this Article result in the diminution of the existing salaries,
allowances and benefits of the aforementioned officials."
Notes:
NLRC is an attached agency of the DOLE.
In your administrative law, you know already what an attached agency is.

It is the administrative body w/ quasi-judicial functions and the principal government agency that hears and
decides labor management disputes. It has one chairman and 23 members.
The 8 members of the NLRC must come from the workers organization, and the other 8 must come
from the employer organization. The chairman, as the presiding commissioner of the 1 st division and the seven
(7) remaining members must come from the public sector they will be the presiding commissioner of the
other divisions.
They may sit en banc or in 8 divisions each composed of 3 members.

Mao ni bantayan sa NLRC;


The NLRC exercises its adjudicatory and all other powers, functions and duties through its divisions.
Unlike the SC in which there are cases that may be decided en banc or in division, in NLRC, they cannot
decide cases en banc. The Commission will sit en banc only for purposes of promulgating rules and regulations
governing the hearing and disposition of cases before any of its divisions and regional branches and formulating
policies affecting its administration and operations.
Functions of the Commission EN BANC:
1) The commission shall sit en banc only for the purpose of promulgating rules and regulations governing the hearing
and disposition of cases before any of its divisions and regional branches.
2) Formulate policies affecting its administrative and operations.
3) The Commission sitting en banc may, on temporary or emergency basis, allow cases within the jurisdiction of any
division to be heard and decided by any other division whose docket allows the additional workload and such
transfer will not expose litigants to unnecessary additional expenses.
4) The president may extend the services of the commissioner or Labor Arbiter up to the maximum age of 70, upon
the recommendation of the Commission sitting en banc.
5) The Labor Arbiters shall be appointed by the President, upon recommendation of the Commission en banc to a
specific arbitration branch, preferably in the region where they are residents.
Mao ra na ang mabuhat sa Commission En Banc.
AGAIN,:

NOTES IN LABOR RELATIONS

BATCH SINE QUA NON

EN Banc cannot decide cases, if you will lose a case in division, it is not appealable to the Commission
sitting En Banc.
The adjudicatory functions of the NLRC are exercised through its division.
Take note of the qualifications if ganahan mo mag LA, Commissioner. The salary of a Labor Arbiter is equivalent to the
salary of an RTC judge. Salary of a commissioner (NLRC) is equivalent to CA justice.

NOTES IN LABOR RELATIONS

BATCH SINE QUA NON


Powers and Duties
Jurisdiction

Art.224 Jurisdiction of Labor Arbiters and the Commission


(a) Except as otherwise provided under this Code the Labor Arbiters shall have original and
exclusive jurisdiction to hear and decide, within thirty (30) calendar days after the submission
of the case by the parties for decision without extension, even in the absence of stenographic
notes the following cases involving all workers, whether agricultural or non-agricultural:
1. Unfair labor practices cases (ULP)
2. Termination disputes
3. If accompanied with a claim for reinstatement, those cases that workers may file involving
wages, rates of pay, hours of work and other terms and conditions of employment;
4. Claims for actual, moral, exemplary and other forms of damages arising from the
employer-employee relations;
5. Cases arising from any violation of Article 278 of this Code, including questions involving
the legality of strikes and lockouts;
6. Except claims for Employees Compensation, Social Security, Medicare and maternity
benefits, all other claims, arising from employer-employee relations, including those of
persons in domestic or household service, involving an amount exceeding five thousand
pesos (P5,000.00) regardless of whether accompanied with a claim for reinstatement.
(b) The Commission shall have exclusive appellate jurisdiction over all cases decided by Labor
Arbiters.
(c) Cases arising from the interpretation of collective bargaining agreements and those arising
from the interpretation or enforcement of company personnel policies shall be disposed of by
the Labor Arbiter by referring the same to the grievance machinery and voluntary arbitration
as may be provided in said agreements.
Notes:
Again the law provides that these cases are under the original and exclusive jurisdiction of Labor Arbiter but
not actually exclusive because by agreement of the parties these can be transferred to voluntary arbitrators or panel of
voluntary arbitrators.
No. 1 case under the jurisdiction of Labor Arbiter is ULP para makasabot mu ug unsay ULP muambak sa ta
sa Art. 257.
Art. 257 Concepts of Unfair Labor Practice and Procedure for Prosecution Thereof
Unfair labor practices violate the constitutional right of workers and employees to self-organization,
are inimical to the legitimate interests of both labor and management, including their right to bargain
collectively and otherwise deal with each other in an atmosphere of freedom and mutual respect, disrupt
industrial peace and hinder the promotion of healthy and stable labor-management relations.
Consequently, unfair labor practices are not only violations of the civil rights of both labor and
management but are also criminal offenses against the state which shall be subject to prosecution and
punishment as herein provided.
Subject to the exercise by the President or by the Secretary of Labor and Employment of the powers
vested in them by Articles 263 and 264 of this code, the civil aspects of all cases involving unfair labor
practices, which may include claims for actual, moral, exemplary and other forms of damages, attorneys fees
and other affirmative relief, shall be under the jurisdiction of the labor arbiters. The labor arbiters shall give
utmost priority to the hearing and resolution of all cases involving unfair labor practices. They shall resolve
such cases within thirty (30) calendar days from the time they are submitted for decision.
Recovery of civil liability in the administrative proceedings shall bar recovery under the civil code.
No criminal prosecution under this title may be instituted without a final judgment, finding that an
unfair labor practice was committed, having been first obtained in the preceding paragraph. During the
pendency of such administrative proceedings, the running of the period of prescription of the criminal
offense herein penalized shall be considered interrupted: provided, however, that the final judgment in the
administrative proceedings shall not be binding in the criminal case nor be considered as evidence of guilt
but merely as proof of compliance of the requirements herein set forth.

NOTES IN LABOR RELATIONS

BATCH SINE QUA NON

BAR QUESTIONS: (set 1 No.5)


Define Unfair Labor Practice. Give 3 examples of ULP on the part of the employer and 3 examples on the part of
the union.
Answer:
ULP are acts committed by employer or labor organization that violates the
constitutional rights
of workers and employees to self-organization.
Examples of Acts committed by employer:
a) Yellow dog condition
b) Company unionism
c) Discrimination for or against union membership
Examples of acts committed by labor organization:
a) Blue-sky bargaining
b) Sweetheart doctrine
c) Gross violation of the CBA
Notes:
What is ULP or Unfair Labor Practice?
For example:
Employer gikulata ang ijang empleyado o wa pasweldo-e ug tarung ang iyang empleyado
Is this an
Unfair Labor Practice?
This is not ULP. Because ang definition sa ULP are acts committed by employer or labor organization that
violates the constitutional rights of workers and employees to self-organization. TIMAN-E NI!!
Acts na gitawag ug ULP are exclusive. Kana rang ge-enumerate under Art. 257 & 258. Mao ra na ang ULP
exclusive ra na cya.
Any acts not enumerated under the law either committed by employer or labor organization are not ULP.
Managerial employee - is one who is vested with the powers or prerogatives to lay down and execute
management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline
employees
ULP cannot be committed against managerial employees because they dont have the right to form or join a
labor organization.
Now in ULP cases it is the union that has the burden of proof to present substantial evidence to support its
allegation of ULP committed by the employer. It is not enough that the union believe that the employer committed acts
of ULP when the circumstances clearly evade even a prima facie showing to warrant such a belief.
So in ULP, you have to take into account the employers motive.
What are the liabilities of the employer or the labor organization who committed ULP?
Civil; and
Criminal
No.1, we have civil action for damages, attorneys fees and other affirmative reliefs; and no.2, we have
criminal prosecutions.
Take note!!
No criminal prosecution under this title may be instituted w/out a final judgment, finding that an unfair
labor practice was committed, having been first obtained in the presiding paragraph. During the pendency of
such administrative proceedings, the running of the period of prescription of the criminal offense shall be
considered interrupted. Provided, however, that the final judgment in the administrative proceeding shall not
be binding in the criminal case nor be considered as evidence of guilt but merely as proof of compliance of
the requirements herein set forth.
Under the law the civil and criminal case cannot be prosecuted simultaneously. The criminal aspect of ULP
cannot be prosecuted during the pendency of the administrative proceeding. Only when there is a final judgment in the
administrative proceeding declaring that ULP has been committed can the criminal prosecution of ULP be
commenced.
Ang pangutana is binding ba sa criminal case or would it serves as evidence of guilt ang final judgment sa
administrative proceeding? No! under the law the final judgment in the administrative proceeding shall not be binding
in the criminal case nor be considered as evidence of guilt but merely as proof of compliance of requirement set forth;
The civil aspects may be passed upon by a labor arbiter. The criminal charge falls under the concurrent
jurisdiction of the Municipal or Regional Trial Court.
The criminal liability shall be imposed upon the guilty officers of a corporation, partnership, association or
entity if the offense is committed by a corporation, partnership, association or entity. If the ULP is committed by a labor
organization, the criminal liability shall imposed upon the officers, members of governing boards, representatives or
agents or members of the labor organizations who have actually participated in, authorized or ratified ULP.
The offense prescribes in one year.

NOTES IN LABOR RELATIONS

BATCH SINE QUA NON

BAR QUESTIONS: (set 1 No.6-7)


Discuss in full the jurisdiction over the civil and criminal aspects of a case involving an unfair labor practice for
which a charge is pending with the Department of Labor and Employment.
Answer:
The civil aspect of ULP is under the jurisdiction of the Labor Arbiter. However, it can be transferred to voluntary
arbitrators or panel of voluntary arbitrators upon agreement of the parties.
It can be transferred to the secretary of labor if the same involves an industry indispensable to the national
interest. The secretary will assume jurisdiction. All other disputes related will also be subsumed / absorbed by the SEC
of Labor. Thus, ULP cases pending before Labor Arbiter are now transferred to the Sec. of Labor.
No criminal prosecution can be instituted w/out final judgment in an administrative proceeding that an unfair
Labor practice has in fact been committed. The administrative findings are neither binding in the criminal case nor
available as evidence of guilt but merely as proof of procedural compliance.
Johnny is the duly elected president and principal union organizer of the Nagkakaisang Manggagawa ng Manila
Restaurant, a legitimate labor organization. He was unceremoniously dismissed by the management for spending
virtually 95% of his working hours in union activities. On the same day, Johnny received the notice of termination;
the labor union went on strike.
(c) The Labor Arbiter found management guilty of ULP for the unlawful dismissal of
Johnny. The decision became final. Thereafter, the NMMR filed a criminal case against the Manager of Manila
Restaurant. Would the labor arbiters finding be sufficient to secure the Managers conviction? Why or why not?
Answer.
No. the administrative findings are neither binding in the criminal case nor available as evidence of guilt but
merely as proof of compliance.
Elements of ULP;
1. Existence of employer employee relationship
2. The act done is expressly defined in the code as an act of unfair Labor practice
Acts are exclusive, so they must be one of those enumerated.
Art.258 Unfair Labor Practices of Employers
It shall be unlawful for an employer to commit any of the following unfair labor practices:
(a) To interfere with, restrain or coerce employees in the exercise of their right to self-organization;
(b) To require as a condition of employment that a person or an employee shall not join a labor
organization or shall withdraw from one to which he belongs;
(c) To contract out services or functions being performed by union members when such will interfere
with, restrain or coerce employees in the exercise of their right to self-organization;
(d) To initiate, dominate, assist or otherwise interfere with the formation or administration of any labor
organization, including the giving of financial or other support to it or its organizers or supporters;
(e) To discriminate in regard to wages, hours of work and other membership in any labor organization.
Nothing in this code or in any other law shall stop the parties from requiring membership in a
recognized collective bargaining agent as a condition of employment, except those employees who
are already members of another union at the time of the signing of the collective bargaining
agreement. Employees of an appropriate collective bargaining unit who are not members of the
recognized collective bargaining agent may be assessed a reasonable fee equivalent to the dues and
other fees paid by members of the recognized collective bargaining agent, if such non-union members
accept the benefits under the collective agreement. Provided, that the individual authorization
required under Article 242, paragraph (o) of this code shall not apply to nonmembers of the
recognized collective bargaining agent;
(f) To dismiss, discharge, or otherwise prejudice or discriminate against an employee for having given or
being about to give testimony under this code;
(g) To violate the duty to bargain collectively as prescribed by this code;
(h) To pay negotiation or attorneys fees to the union or its officers or agents as part of the settlement of
any issue in collective bargaining or any other dispute; or
(i) To violate a collective bargaining agreement.

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The provisions of the preceding paragraph notwithstanding, only the officers and agents of
corporations, associations or partnerships who have actually participated in, authorized or ratified unfair
labor practices shall be held criminally liable.
Art. 259 Unfair Labor Practices of Labor Organization
It shall be unfair labor practice for a labor organization, its officers, agents or representatives:
(a) To restrain or coerce employees in the exercise of their right to self-organization. However, a labor
organization shall have the right to prescribe its own rules with respect to the acquisition or retention
of membership;
(b) To cause or attempt to cause an employer to discriminate against an employee, including
discrimination against an employee with respect to whom membership in such organization has been
denied or to terminate an employee on any ground other than the usual terms and conditions under
which membership or continuation of membership is made available to other members;
(c) To violate the duty, or refuse to bargain collectively with the employer, provided it is the representative
of the employees;
(d) To cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or
other things of value, in the nature of an exaction, for services which are not performed or not to be
performed, including the demand for fee for union negotiations;
(e) To ask for or accept negotiations or attorneys fees from employers as part of the settlement of any
issue in collective bargaining or any other dispute; or
(f) To violate a collective bargaining agreement.
The provisions of the preceding paragraph notwithstanding, only the officers, members of the
governing boards, representatives or agents or members of the labor associations or organizations who have
actually participated in, authorized or ratified unfair labor practices shall be held criminally liable.
Notes:
Query-1:
Mr. X is the leader of the rank and file employees. He was promoted as manager, thus he is no longer
qualified to be a member of a labor organization.
Under the law managerial employees are not allowed to join a labor organization. However, they are allowed
to join a workers association. Would you consider that promotion as ULP?
Answer:
No. It does not constitute ULP because it is a valid exercise of management prerogatives unless there is an
intention of the employer to interfere with or restrain the right to self-organization. Promotion per se is not ULP. If the
management or companys rights and prerogatives are exercised in good faith for the advancement of employees
interest and not for defeating and circumventing the rights of employees under special laws or agreements the court
will uphold them as valid.
Query-2
When can you say that the grants of benefits by employer are within the exercise of management rights and
prerogatives and not ULP?
So long as the companys management rights and prerogative are exercised in good faith and not for
defeating & circumventing the rights of employees.
Query-3:
The employer prohibits its employee in engaging of union membership, solicitation, distribution of flyers during
working hours. Is this ULP?
Answer:
No, because the prohibition is not absolute. After office hours they can engage in such work.
Employers have the right to promulgate rules to maintain discipline and enhance production within its premises during
working hours.
Is surveillance by the employer of the meeting of the union & employee constitutes ULP?
Answer:
Yes. Such conduct on the employers part constitutes interference with the employees exercise of their right to
self-organization.
Illustrative instances of valid exercise of management rights:
a) Personnel movements (such as transfer, promote or demote) unless with intent to violate the right of selforganization
b) Acceptance of mass resignation Enriquez vs Zamora Gr No. 51382-Dec. 29, 1986
c) Grant of Profit sharing benefits to non-union members Wise and Co.,Inc vs Wise and Co. employees
Union Gr. No. 87672-Oct. 13, 1989
d) Forced vacation leave w/out pay in view of economic crisis
e) Issuance of rules or policy for management of business affairs

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f)

BATCH SINE QUA NON

Taking action against slowdown for purposes of stopping the same

ULP by Employer:
Art. 258 (a) vs. Art. 259 (a)
There is no more interference in Art. 259 (a). In ULP of Labor organization there is no more interference,
therefore if the labor organization interferes with the right to self organization of the employees that is not ULP.
An employer commits ULP by IRC; interference, restrain, or coercion. But in article 259 on ULP by a labor
organization interference is left out. In other words interference by a labor organization is not ULP. A labor
organization may interfere in the employees right to self-organization as long as the interference does not amount to
restraint or coercion.
Interference by a labor organization is not ULP because interfering in the exercise of self-organization is itself
a function of self-organizing.
The test of determining whether an employer is interfering with is whether or not the employer has engaged in
a conduct which tends to hinder the free exercise of the employees right to self-organization.
It is not necessary that there be direct evidence that any employee was intimidated or coerced by statements
of threats by the employer. It is enough that there is a reasonable inference that anti-union conduct of the employer
had adverse effects on self-organization and collective bargaining.
Interference constituting ULP will not cease to be such simply because it was susceptible to be thwarted or
resisted or because it did not proximately caused the result intended. Success of purpose is not a criterion in
determining whether or not the prohibited acts constitute ULP.

Totality of conduct doctrine; the culpability of the employers remarks is evaluated not only on the basis on their
implication but also against the background of and in conjunction with collateral circumstances.
Expressions of opinion by an employer, though innocent in themselves, frequently were held to be culpable
because of the circumstances under which they were uttered, the history of the particularly employers labor relations
or anti-union bias or because of their connection with an established collateral plan of coercion or interference. An
expression which might be permissibly uttered by one employer might in the mouth of more hostile employer be
deemed improper and consequently actionable as an unfair labor practice.
Take Note also that an employer may be guilty of ULP before the union is registered. In one case, it was
claimed by the employer that it cannot be held guilty of ULP because the union is not yet registered. But the court
ruled that under ART. 258 (a), to interfere with, restrain, or coerce employees in their exercise of the right to selforganization is an unfair labor practice on the part of the employer. Paragraph (d) of said article also considers it an
unfair labor practice for an employer to initiate, dominate, assist or otherwise interfere with the formation or
administration of any labor organization. In this particular case, the private respondents were dismissed because they
were soliciting signatures in order to form a union within the plant. For sure, the employer corporation is guilty of ULP
in interfering with the formation of a labor union and retaliating against the employees exercise of their right to selforganization.
Art. 258 (b) Yellow dog contract
Query: X applied for employment of Y Company. He was asked by the personnel manager if he belongs to a union
and he said yes. The manager told him that he cannot be employed in the company unless he first resigned with his
union. As X refuse to do so, he was not employed.
(a) Did Y Company commit ULP?
(b) Y Company set up a defense that it cannot be guilty of ULP against one who is not yet their employee.
Answer:
(a) Yes under Art. 258 (b) yellow dog contracts.
It is an agreement which requires as condition of employment that a person shall not become a member of a
labor organization or refrain from joining of Labor Organization or withdraws membership if already a member or quits
employment upon joining a labor organization.
A Yellow Dog Contract is null and void from being contrary to law and public policy.
(b) As to the question whether the company can be guilty of ULP considering that the person is not yet its employee;
Yes, this is an exception to the requirement that there should be an employer employee relationship. Obviously
it is a violation of a right to self organization.
Art. 258 (c) Contracting out services
In labor standards job contracting is valid and legal under labor code;

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BAR QUESTIONS: (set 1 No.8)


Company A contract out its clerical and janitorial services. In the negotiations of the CBA, the union insisted that,
henceforth, the company may no longer engage in contracting out these types of services which services the
union claims to be necessary in the companys business without prior consultation. Is the unions stand valid or
not? For what reason(s)?
Answer:
The mere act of contracting out services or functions performed by union members does not constitute ULP. It
becomes ULP only if it is motivated by a desire to prevent his employees from organizing & selecting collective
bargaining representatives.
Contracting out and promotion is not ULP per se. Those are valid exercise of management prerogatives. The
same must be exercise in good faith.
Asa mahibaw-an ang motive? musud na dha ang totality of conduct doctrine or it depends on the facts of the
case. If the facts are silent just state the general rule that it is not ULP.
Take Note of the definition of RUN AWAY SHOP
Runaway Shop is ULP. It is defined as an industrial plant moved by its owners from one location to another to
escape union labor regulations or State laws, but the term is also used to describe a plant removed to a new
location in order to discriminate against employees at the old plant because of their union activities. In other
words, it refers to the business relocation animated by anti-union animus (intention).
- This violates the right to self-organization
- Transfer to different location that is tantamount to closure
- This is a method of evading the employees right to self-organize
BAR QUESTIONS: (set 1 No.9)
True or false. A runaway shop is an act constituting unfair labor practice.
Answer:
True, because it prevents the employee from exercising their right to self-organization.
Art. 258 (d) Company-Domination of Union
This is ULP because the union should be independent from the employer. The purpose of union is to negotiate
for higher benefits and to protect the interest of employee-members.
Union should not be initiated by the employer or company otherwise if will defeat the purpose of organizing a
labor organization. It would violate the rights of employee to self-organization.

Art. 258 (e) Discrimination.


This is usually a favorite source of BAR Questions.
(1) Unlawful discrimination;
What the law prohibits is discrimination to encourage or discourage membership in a labor organization.
Where the purpose is to influence the union activity of employees, the discrimination is unlawful.
Test of Discrimination
For the purpose of determining whether or not a discharge is discriminatory, it is necessary that the underlying
reason for the discharge be established. If the discharge is actually motivated by lawful reason, the fact that the
employee is engaged in union activities at that time will not lie against the employer and will not prevent him in the
exercise of his business judgment to discharge the employee for cause.
But discrimination is not the same as differentiation or classification. For instance, it is common management
practice to classify jobs and grant them varying levels of pay or benefits package. These are valid differentiations
that recognize differences in job requirements or contributions. They are not necessarily discrimination classifiable
as ULP. This is in relation to Equal Protection Clause which admits reasonable classification.
It becomes ULP only when it is intended to encourage or discourage membership to a labor organization.
Illustrative Case:
Wise and Co.,Inc vs. Wise and Co., Inc Employees Union Gr. No. 87672-Oct. 13, 1989
(2) Valid discrimination;
Union Security Clause is a generic term which is applied to and comprehends closed shop, union shop
maintenance of membership or any other form of agreement which imposes upon employees the obligation
to acquire or retain union membership as a condition affecting employment. It is indeed compulsory union
membership whose objective is to assure continued existence of the union.
It essentially requires membership to the
union which is certified as
the
exclusive bargaining agent so that the employee may retain his job. It imposes upon employees the obligation to
acquire and to retain membership in a union as a condition affecting employment.

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Aho ipasabot ha!


Kaning union security clause naa ni sa CBA. Unsa mani? Kining union security clause nag-require sa tanang
empleyado sa usa ka kompanya nga kinahanglan sila mahimong member sa labor organization. That labor
organization must be certified as an exclusive collective bargaining agent/representative.
In an employer unit, dunay mga bargaining units.
For example;
Cm, ang teaching personnel ug non-teaching personnel dili na mausa, lain2x na. Under sa mga cases
decided by the SC involving educational institution dili na mag-usa ug grupo kay matod pa sa SC lain2x na cla ug
kinahanglan. Teaching personnel, usa na ka bargaining unit. Ang non-teaching personnel usa pod na ka
bargaining unit in an employer unit.
Sa usa ka bargaining unit daghan na mga union ang ma-established. Under the law kung maghimu kunu ka
og union dapat aduna kay 20% support requirements. So, sa ato pa, sa usa ka bargaining unit kinahanglan
maximum of five labor organization (20% of 100% is 1/5).
Sa lima ka union dili na cla tanan ang mo-bargain sa employer. There should only be one labor organization
na maoy mag-represent sa tanang employees in the bargaining unit in the negotiation with the employer unit.
KUHA!?
BARGAINING UNIT
- Union 1
- Union 2
- Union 3
- Union 4
- Union 5

20% each support requirements

Dili cla tanan maka-negotiate!


Usa ra ang maka negotiate, usa ra! Kanang usa nga makanegotiate mao nay gitawag ug CERTIFIED and
EXCLUSIVE Bargaining Agent (CEBA).
Unsaun man pagpili sa CEBA - ang union nga maoy mu negotiate? That is thru certification election, ang
mo-daog, mao na cya ang mu-negotiate sa employer for higher benefits.
Balik ta sa Union Security Clause! (USC)
Union Security Clause requires employees to be a member of a labor organization certified as the exclusive
bargaining representative para duna kay trabaho, otherwise taktak ka. No work.
Take note, dili ra kay membership of any labor organization. It should be membership to labor organization certified as
the exclusive bargaining representative. (mao na ang USC)
Kung tangtangun ka sa union tungod kay naa kay nahimu, example, naghimo ka ug lain nga union. This
constitutes disloyalty. So, automatic na tang2x ka sa trabaho because of the USC.
There are several types of Union Security Agreements, namely: (MEMORIZE!!!)
1. Closed Shop only union members can be hired by the company and they must remain as union members
to retain employment in the company
2. Union shop nonmembers may be hired, but to retain employment must become union members after a
certain period. The requirement applies to present and future employees.
3. Modified union shop employees who are not union members at the time of signing the contract need not
join the union, but all workers hired thereafter must join.
4. Maintenance of membership shop no employee is compelled to join the union, but all present or future
members must, as a condition of employment, remain in good standing in the union.
5. Exclusive bargaining shop the union is recognized as the exclusive bargaining agent for all employees in
the bargaining unit, whether union members or not.
6. Bargaining for members only the union is recognized as the bargaining agent only for its own members.
7. Agency shop 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 (Agency Fees). This is directed against free rider
employees who benefit from union activities without contributing financially to union support. It prevents a
situation where nonunion members enrich themselves at the expense of union members. Another term for
agency shop agreement is maintenance of treasury shop.
8. Open shop an agreement which does not require union membership as a condition of employment.
LIMITATIONS;
(1) Union Security Clause cannot be enforced against any employee who at the time of agreement is a member of
bona fide religious organization, which prohibits its members from joining any labor unions on religious grounds (Iglesia ni Cristo)

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Illustrative Cases:
Victoriano vs. Elizalde Rope Workers
The issues raised in this case were:
Whether or not those members of INC are exempt from the coverage of the Union security clause of a
CBA
Whether or not RA 3350 impairs obligation of contracts because the CBA itself which contains the
Union security clause is a contract and therefore unconstitutional.
Unsa man ingun sa SC?!
Yes, the amendment indeed impairs the obligation of contracts but the prohibition to impair the contracts is not
absolute and unqualified.SC ruled that free exercise of religious belief is superior to contractual rights. Existing laws
and reservation of essential attributes of sovereign power are read into contracts and free exercise of religious
profession or belief is superior to contractual rights. In case of conflict, the latter must yield to the former.
Take note of this case not assigned!
Victorias milling
citation)

Company vs. Victorias Employee Union.(no

Union Security Clause was questioned for being unconstitutional as it violates the right of freedom to
association (to choose kung asa magpamembro).
SC ruled;
The right of the employees to organize and select their bargaining representative and entering the bargaining
agreements should be subordinated to the constitutional provision protecting the sanctity of contracts. An intent to
override constitutional provision would be null and void.
In the hierarchy of rights, freedom of association is below obligations of contract, and obligations of contract is
below freedom of religions. Thus:
(1) Freedom of Religion
(2) Obligation of Contracts
(3) Freedom of association
Why INC members are exempt from membership of USC? Specific Provision of Law
Can members of INC who are exempted to join a labor organization be allowed to vote in a certification
election?
SC ruled;
Yes, they can vote. They cannot be forced to join a union but they have the right to vote.
There is still union even if no union wins but no CEBA among the union. They cannot negotiate.
Kapatiran vs. BLR Gr. No. L-82914 June 20, 1988
The court upheld the rights of INC sect not to join a labor union for being contrary to their religious beliefs and
teachings. But the same does not bar the members of the said sect from forming their own union. Superior ang
religion kay sa obligation of contract & freedom of association.
(2) Union Security Clause does not apply to those employees who are already in service and already members of
labor union other than the majority union at the time the CBA took effect.
So, if you are already a member of a union & your union loses the election you are exempted from the
application of the union security clause. You are not required to transfer to the winner of the election or bargaining
agent because exempted na ka sa USC.
(3) Union Security Clause does not apply to employees expressly exclude by CBA stipulation
Take note of Supervisors:
Supervisors can join and form a labor organization of their own but they are not eligible to be a member of the
Labor Organization of the rank and file employees. (Segregation is founded on fairness)
Before, under the old code, supervisors are not allowed to join or form labor organization. Pero karon, pwede
na. Also, under the Old Rule, Di pwede mag affiliate ang supervisors union og rank and file union. Pero now, pwede
na under one Federation provided said supervisors union and rank and file union are operating under the same
establishmment.
Ang usa ka federation aduna nay at least 10 affiliates either independent union or local chapter. Local chapter
ang tawag sa union if it has no independent registration, nag salig ra sa federation.
Again!
Under sa Union security clause, unless usa ka sa exempted, kinahanglan mahimo kang member sa labor
organization certified as the exclusive bargaining representative para naa kay trabaho. Nahitabo nga natangtang ka sa

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union. The union officers wrote the management a letter requesting your termination for employment. (wa na man ka
sa union, dili man ka exempted sa USC). Unsa man ang buhaton sa employer? Automatic ba ka i-dismiss?
Answer:
No, the employer will conduct an investigation of its own because the employee is entitled to due process of
law, that is, with due notice and hearing.

Illustrative Case
Malayang Samahan ng Manggagawa sa Greenfield v Ramos.

Focus on;
Application of Union Security Clause
Facts:
The local union is an affiliate of a federation. Then the local union wants to disaffiliate from said federation
Take note na kung mu affiliate gani ka ug federation, naa kay katungod m0-disaffiliate. Maka disaffiliate man ka
kay duna man kay kaugalingong kinabuhi kay duna man kay Independent registration.
Ang mag lisod ang chapter kay nagsalig sa iya existence sa life sa federation. But if you have an independent
registration, it is your right to disaffiliate anytime.
In this case the local union wants to disaffiliate. Because of that, the federation wanted the dismissal of the local
unions officers who disaffiliated from the federation.
Since they are no longer member of the union (federation), therefore they should be dismissed from employment
pursuant to the union security clause. The employer immediately dismissed the employees (members of the local
union).
Was the act of dismissal an act of ULP on the part of employer?
Answer:
No. the dismissal was pursuant to the enforcement of union security clause, thus, not ULP.
Only that due process was not complied. Under the law, if there is a valid ground for dismissal and due
process was not complied, the dismissal is still valid but the employer is liable for nominal damages.
In this case, the dismissal was held invalid because the reason relied upon by the employer was not valid. As
a rule, a union has the right to disaffiliate. Thus, USC does not apply.

Art.258 (f) Discrimination because of testimony


The law protects not only the employees right to form, join, or assist labor organizations but also their
right to testify on matters covered by the Code. If this right is not protected, the right to self-organization will be
indirectly defeated because the employees will fear their employers reprisal. By protecting the employees
right to testify, the law therefore shields the workers right to self-organization from indirect assault by the
employer. Thus, it is ULP to dismiss, discharge, or otherwise prejudice or discriminate against an employer for
having given or being about to give testimony under this code.

Query: Does it apply to a situation where the employer retaliates against an employee who refused to testify in favor
of the employer?
Answer:
Yes. This actuation is analogous to the situation envisaged in Art.258 (f) of the Labor Code which
distinctly makes it an unfair labor practice to dismiss, discharge or otherwise prejudice or discriminate against
an employee for having given or being about to give testimony. (Mabeza vs. NLRC gr.no 118506-April 18,
1997)
Query: How about if a relative of the employee ang gi-dismiss instead of the employee, does the prohibition apply?
Answer:
Yes. What the law prohibits directly, cannot be done indirectly.

Art. 258(g) Violation of the duty to bargain


Relate this to art.262-263: ULP in Bargaining such as:
Failure or refusal to meet and convene
Evading the mandatory subjects
Bargaining in bad faith
Gross violation of the contract

Art. 258(h) Paid negotiation


Self-organization and collective bargaining are treasured rights of workers. The law zealously shields
them from corruption. It is a punishable act of ULP for the employer to pay the union or any of its officers or
agents any negotiation fee or attorneys fee as part of settlement in collective bargaining or any labor dispute.
To do so is not only unlawful. It is ethically reprehensible.

Art.258 (i) Violation of the CBA

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After a CBA is concluded, its implementation follows. Implementation is still part of the bargaining
process which rests on the parties duty to bargain. The duty to bargain requires good faith. And good faith
implies faithful observance of what has been agreed upon. It logically follows that noncompliance with the
agreement is non-observance of good faith in bargaining: therefore, the noncompliance amounts to ULP.
To constitute ULP, the same must be gross. Gross violations of the CBA shall mean flagrant
and/or refusal to comply with the economic provisions of such agreement. (Art. 273)
JULY 12, 2014

LABOR RELATIONS
PROCESS OF SETTLING LABOR DISPUTE
Compulsory Arbitration brought to Labor Arbiter
- The process of settlement of labor disputes by a government agency which has the authority to investigate
and to make an award which is binding on all the parties.
Take Note: The primary process of settling labor disputes is not compulsory arbitration but voluntary
arbitration, mediation, and conciliation.
Article 224 of the Labor Code enumerates the Jurisdiction of Labor Arbiter
- Not exclusive because by agreement of the parties, the same can be presented to the voluntary arbitrators to
decides with finality.
VENUE:
a. All cases which Labor Arbiter have authority to hear and decide maybe filed in the Regional Arbitration
Branch having jurisdiction over the workplace of the complainant or petitioner.
For purpose of venue, workplace shall be understood as the place or locality where the employee is regularly
assigned at the time the cause of action arose. It shall include the place where the employee is supposed to report
back after a temporary detail, assignment on travel. In the case of field employees, as well as ambulant or itinerant
workers, their workplace is where they are regularly assigned or where they are supposed to regularly receive their
salaries and wages or work instructions from, and report results of their assignment to their employers.
b. Where two or more Regional Arbitration Branches have jurisdiction over the workplace of the complainant
or petitioner the Branch that first acquired jurisdiction over the case shall exclude the others.
c. When venue is not objected to before the filing of position papers, such issue shall deemed waived.
d. The venue of an action maybe changed on transferred to a different Regional Arbitration Branch other than
where the complaint was filed by written agreement of the parties or when the Commission or Labor Arbiter before
whom the case is pending so orders, upon motion by the proper party in meritorious cases.
e. Cases involving overseas Filipino workers maybe filed before the Regional Arbitration Branch having
jurisdiction over the Place where the complainant resides or where the principal office of any of the respondents is
situated, at the option of the complainant.
Take Note!:
With respect to venue, the convenience of the worker being the economically disadvantaged party is being
considered. Thus, allowing a different venue when the interest of substantial justice demands a different one.
Example: Ang workplace sa employee/complainant is in Cebu City but his residence is Manila. Pwede e-file ang case
sa Manila because that is the convenience of the worker.
Illustrative Case:
Sulpicio Lines, Inc. vs. NLRC 254 SCRA 506(1996)
The rationale for the rule is obvious. The worker being the economically disadvantaged party whether as
complainant/petitioner or as respondent as the case maybe the nearest governmental machinery to settle the
dispute must be placed at his immediate disposal. The other party is not to be given the choice of another competent
agency sitting in another place as this will unduly burden the worker. Even in cases where venue has been stipulated
by the parties, the Court has not hesitated to set aside the same if it would lead to a situation so grossly inconvenient
to one party as to virtually negate his claim.
Kung asa convenient ang worker pwede adto sya mo file. The Supreme Court affirmed it as valid
venue. Even if not filed at the workplace of the worker.
Take Note:
If it involves OFW, labor arbiter has jurisdiction over OFWs money claim. It shall be filed before the Regional
Arbitration Branch where the complainant resides or where the principal office of any of the respondents is situated, at
the option of the complainant.
Take Note: Resort to the barangay is not necessary in labor cases.
JURISDICTION OF THE LABOR ARBITER

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-

BATCH SINE QUA NON

There must be an employer-employee relationship of the parties. Exception is the case of OFW Santiago V.
CF

BAR QUESTIONS: (set 2 No.1-3)


Richie, a Driver - mechanic was recruited by Supreme Recruiters (SR) and its principal, Mideast Recruitment
Agency (MRA), to work in Qatar for a period of 2 years. However, soon after the contract was approved by POEA,
MRA advised SR to forego Richies deployment because it had already hired another Filipino driver-mechanic,
who had just completed his contract in Qatar. Aggrieved, Richie filed with the NLRC a complaint against SR and
MRA for damages corresponding to his 2-years salary under the POEA-approved contract.
SR and MRA traversed Richies complaint raising the following arguments:
a) The labor arbiter has no jurisdiction over the case
b) Because Richie was not able to leave for Qatar, no employer-employee relationship was established
between them
c) Even assuming that they are liable, their liability would at most be equivalent to Richies salary for only 6
months, not 2 years.
- Wala pa ka-gawas si Richie padung Qatar
- Wala pa ka-trabaho so Richie although signed a contract
- Wala pay employer-employee relationship
- Does Labor arbiter have jurisdiction?
Answer:
Yes!
Based on Sec. 10, RA. 8042, Amended by RA 10022
Money claims of OFW
Labor arbiters have the original and exclusive jurisdiction to hear and decide claims arising out of an
employer-employee relationship or by virtue of any law or contract involving Filipino workers for
overseas deployment, including claims for actual, moral, exemplary and other forms of damage
Richies contract is perfected maski wa pa kagawas
The jurisdiction of the Labor arbiter is not only limited to money claims of OFW arose from employeremployee relationship but also by virtue of a contract.
Give the original and exclusive jurisdiction of Labor arbiters.
Answer:
1. Unfair labor practices cases (ULP)
2. Termination disputes
3. If accompanied with a claim for reinstatement, those cases that workers may file involving wages,
rates of pay, hours of work and other terms and conditions of employment;
4. Claims for actual, moral, exemplary and other forms of damages arising from the employeremployee relations;
5. Cases arising from any violation of Article 278 of this Code, including questions involving the
legality of strikes and lockouts;
6. Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, all
other claims, arising from employer-employee relations, including those of persons in domestic or
household service, involving an amount exceeding five thousand pesos (P5,000.00) regardless of
whether accompanied with a claim for reinstatement.
It may include:
claims of OFW
wage distortion case in unorganized establishment
enforcement of compromise agreement
contested cases under the exception clause of Art.128(b) of the Labor Code:
when the employer contests the findings of the labor regulations officer and raises issues thereon
there is a need to examine evidentiary matters
such matters are not verifiable in the ordinary course of inspection
Can a dispute falling under the jurisdiction of the Labor arbiter be submitted to voluntary arbitration? Why or why
not
Answer:
Yes, by agreement of parties. The State prefers that labor disputes, including the setting of terms and
conditions of employment, be left to the parties to be settled through peaceful negotiations and collective bargaining.

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AGAIN!:
CASES UNDER THE ORIGINAL JURISDICTION OF LABOR ARBITER:
Not exclusive because by agreement of the parties, these can be transferred to voluntary arbitrator or panel of
voluntary arbitrators, or, these can be assumed by the Secretary of Labor involving national.
1. ULP
Administrative, civil respect
Criminal aspect of ULP regular Court
2. TERMINATION DISPUTES
Does not include: termination of corporate officer; termination disputes arising from interpretation or
implementation of CBA; those arising from interpretation and enforcement of company personnel
policies which are initially processed at the grievance machinery of the CBA.
Take Note:
Labor arbiter has jurisdiction over an illegal dismissal complaint filed by a Pastor or
church
minister. The case at bench is only one of dismissal of an employee in the exercise
by the employerchurch of
its management prerogatives and therefore does not concern any
ecclesiastical matter. While the case relates
to the church and its minister, it does not ipso
facto give it a religious significance, what is involved is only the
relationship of the church as
an employer and the minister as an employee which is purely secular in character
and has
no relation whatsoever to practice of faith, worship or doctrines of the church. Terminating
one
from his employment is totally different from the ecclesiastical act of expelling a member from
the
religious
congregation.
It does not matter that the employer here is a religious sect and that it was organized
not for profit
because the Labor Code applies to all establishment whether for profit or not.
The principle of separation of
Church and State finds no application in this case. (Austria vs. NLRC Gr. No. 124382-Aug. 16, 1999)
EXEMPTIONS:
2.1 TERMINATION OF CORPORATE OFFICERS INTRA CORPORATE CONTROVERSY.
JURISDICTION

IS WITH THE RTC.


Corporate officers are those enumerated by the by-laws of the corporation. Positions created by the
Board.
Illustrative Case:
Espino Vs. NLRC
Issue: WON labor arbiter has jurisdiction over petitioners termination, back wages,
benefits, and damages.
Ruling: Labor arbiter has no jurisdiction. The benefits and damages are actually part
of perquisite of his elective position linked with his relation to the corporation.
Mainland vs. Movilla
If a corporate officer who is at the same time an employee of the corporation,
arbiter has jurisdiction.

the

labor

BAR QUESTIONS: (set 2 Nos.4-6)


Diego, Executive Vice-President of Evergreen Development Corp. (EDC) was dismissed by the Board of Directors
for his involvement in irregularities prejudicial to EDCs interests. He filed a complaint for illegal dismissal with the
labor arbiter, praying for reinstatement with back wages, 5 million pesos as moral damages, 1 million pesos as
exemplary damages and attorneys fees. EDC questioned the jurisdiction of the labor arbiter. Diego, in sum
contended that the Labor arbiter has jurisdiction over the case as it involves the termination of an employee and
claims for back wages, benefits and damages. Decide.
Answer:
Labor arbiter has no jurisdiction of the case because it involves intra corporate
arbiter has jurisdiction over termination disputes except corporate
officers.

controversy.

Labor

Mr. Jonathan Pe, a registered stockholder of New Wave Beauty Shop. Inc. was elected Vice-President of New
Wave at a regular monthly meeting. At a subsequent meeting of the Board of Directors, it was resolved to dismiss
Jonathan as Vice-president due to loss of trust and confidence. Jonathan Pe filed with the NLRC a complaint for
illegal dismissal with damages against New Vave claiming that he was dismissed without due process. New Wave
filed a motion to dismiss based on lack of jurisdiction. Resolve the motion.
Answer:

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NLRC, Labor arbiter have no jurisdiction over the case, Pe is a corporate officer.
Jose Lovina had been a member of the board of directors and Executive Vice-President of San Jose Corporation
for 12 years. In 2008, the San Jose stockholders did not elect him to the Board of Directors nor did the board
reappoint him as Executive Vice-President. He filed an illegal dismissal complaint with the labor arbiter.
Contending that the labor arbiter had no jurisdiction over the case since Lovina was not an employee, the
company filed a motion to dismiss. Should the motion be granted?
Answer:
Yes, jurisdiction lies with the regular court since the complainant was a corporate officer.
2.2 TERMINATION DISPUTES ARISING FROM INTERPRETATION OR IMPLEMENTATION OF CBA OR
COMPANY PERSONNEL POLICY
WHY? Because these disputes are resolved by grievance machinery or through voluntary arbitrators.

Illustrative Case:
Sanyo Philippines vs. Canizares Gr. No.101619-July 8, 1192
The parties of the CBA are the union and the company. Hence only disputes between the union and the
company shall be referred to the grievance machinery or voluntary arbitrators.
When company and the union are united against an employee, the labor arbiter has jurisdiction. Even the
termination is based on CBA enforcement, labor arbiter has jurisdiction. Union Security clause is within the
CBA.

LABOR DISPUTE any controversy or matter concerning terms or conditions of employment or 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.
Note:
A labor dispute is not conditioned on the existence of employer-employee relationship.

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JULY 12 2014
LABOR RELATION (continuation of ULP)
BAR QUESTIONS: (set 1 No.10)

In a certification election conducted by the Department of Labor, AWOL headed by Cesar Montoya won over
Pangkat ng mga Manggagawa sa Laguna (PML) headed by Eddie Gracia. Hence, AWOL was certified as the
exclusive bargaining agent of the rank and file employees of the Laguna Transportation Co. (LTC).
Shortly thereafter, a CBA was concluded by LTC and AWOL which provided for a closed shop. Consequently,
AWOL demanded that Eddie Gracie and all PML members be required to become members of AWOL as a
condition for their continued employment, otherwise, they shall be dismissed pursuant to the closed shop provision
of the CBA.
The union security clause of the CBA also provided for the dismissal of employees who have not maintained
their membership in the union. For one reason or another, Francis Kiko, a member of AWOL was expelled from
the union membership for acts inimical to the interest of the union. Upon receipt of the notice that Francis Kiko
failed to maintain in good standing with AWOL. LTC summarily dismissed him from employment.
Can Eddie Gracia and other PML members be dismissed pursuant to the closed shop provision of the
CBA?
Was the action of the employer in dismissing Francis Kiko proper?
Answer:
No. Eddie Gracia and other members of PML cannot be dismissed pursuant to the closed shop provision of
the CBA because Union Security Clause does not apply to those employees who are already in service and already
members of labor union other than the majority union at the time the CBA took effect.
The action of the employer was not proper. Even though enforcement of a union security clause is a valid
ground for dismissal, the employer must still conduct an investigation of its own because the employee is entitled to
due process of law, that is, with due notice and hearing.
BAR QUESTIONS: (set 1 No.11)
Describe a closed shop agreement. Does it differ from agency shop agreement? Are the above agreements
legal?
Answer:
A closed shop agreement is a type of a union security agreement which provides that only union members can
be hired by the company and they must remain as union members to retain employment in the company. It differs from
an agency shop agreement in the sense that the latter pertains to 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 (Agency Fees).
Agency shop agreement is directed against free rider employees who benefit from union activities without
contributing financially to union support. The same prevents a situation where nonunion members enrich themselves
at the expense of union members. These agreements closed shop and agency shop - are legal.
BAR QUESTIONS: (set 1 No.12)
Reconcile the compulsory nature of the closed shop provision in a collective bargaining agreement with the
constitutional guarantee of freedom of association. Discuss fully.
Answer:
Among the policies of the State in the field of labor relations is to promote trade unionism and to foster the
organization of a strong and united labor movement. Union Security Clauses, like a closed shop agreement, is one
way of implementing the aforementioned labor relations policy. In addition, in the hierarchy of rights, obligations to
contracts are superior to right to self-organization. (See the case of Victorias milling Company vs. Victorias
Employee Union.)
BAR QUESTIONS: (set 1 No.13)
The company granted profit sharing benefits to managers, supervisors and rank and file employees not covered
by the CBA. This is assailed as discriminatory by the union. It claims that employees covered by the CBA should
also be given the same benefit. Is the contention of the union tenable?
Answer:
No. The same is a valid exercise of management prerogative. (see:Wise and Co.,Inc vs. Wise and Co., Inc
Employees Union Gr. No. 87672-Oct. 13, 1989)
BAR QUESTIONS: (set 1 No.15)
Distinguish clearly but briefly between Company Union and Union Shop.
Answer:

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A company union is a union of employees dominated or under the control of the employer of said employees.
A union shop on the other hand, refers to a union security clause in a CBA whereby the employer agrees to terminate
the employment of an employee who has not become a member of the union which is the exclusive collective
bargaining unit within a certain period after the employment of said employee or has ceased to become a union
member.
BAR QUESTIONS: (set 1 no. 16)
The management and Union X in Atisan Mining entered into a CBA for 1997 to 2001. After 6 months, a majority of
Union X formed Union Y and sought management recognition. The latter respondent by not dealing with either
union. But when the CBAs economic provisions had to be renegotiated towards the end of the term of the CBA,
the management chose to negotiate with Union Y, the newer union. Thus, Union X which negotiated the existing
CBA charged the company with unfair labor practice. The company argued that it committed no unfair labor
practice since the supposed violation had nothing do with the economic provisions of the CBA. Is the management
right?
a. No. refusal to comply with the CBAs economic provision is not only ground for ULP; a disregard of
the entire CBA by refusing to renegotiate with incumbent bargaining agent is also ULP.
b. Yes. No unfair labor practice was committed because the supposed violation has nothing to do with economic
provisions of the CBA
c. Yes. The management commits ULP when it decided to renegotiate with the numerically majority union
d. Yes. A CBA violation amounts to ULP only if the violation is gross meaning flagrant or malicious refusal to
comply with the CBAs economic provisions which is not the case here.
Violation to bargain collectively Article 273
For purposes of this article, gross violation of CBA shall mean flagrant and/ or malicious refusal to comply with the
economic provision of such agreement.
Violation of CBA is not ULP per se. Mahimu ra nang ULP if gross in character or malicious refusal to comply
with economic provisions of such agreement.
ULP OF LABOR ORGANIZATIONS
Art.259 (a)
a. To restrain or coerce employees in the exercise of their right to self organization
BAR QUESTIONS: (set 1 no. 17)
Which of the following acts is NOT considered unfair labor practice (ULP)?
a) Restraining employees in the exercise of the right to self-organization.
b) Unions interference with the employees right to self-organization
c) Refusal to bargain collectively with the employer
d) Gross violation of the CBA by the union
Unions interference with the employees right to self-organization is not considered
ULP. In ULP
of Labor organization, interference is left out; only restrain is ULP (also coercion). Adto sa ULP of employer-naay
interference, restraint, coercion.
Art. 259(b)
b. To cause or attempt to cause an employer to discriminate against an employee, including discrimination
against an employee with respect to whom membership in such organization has been denied or to terminate
an employee on any ground other than the usual terms and conditions under which membership or
continuation of membership is made available to other members;
Illustrative Case:
Manila Mandarin Employees Union Vs. NLRC

c.

Art.259 (c)
To violate the duty, or refuse to bargain collectively with the employer, provided it is the representative of the
employees.
Example:
o Making exaggerated proposal (Blue-Sky Bargaining)
o Violation of the right to bargain collectively

You can negotiate to the point of deadlock as long as demand is not unreasonable
that
the
company cannot comply. Dili pwede magpataka og demand nga imposible na or dili
na kaya ihatag sa company
based sa financial statement. Ang hatagan ra og financial
statement sa company kadto rang exclusive
bargaining agent.

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Demanding an unreasonable proposal can be ULP by labor organization in violation


to bargain collectively.

of the duty

Take note of the following:


Featherbedding another form of ULP committed by labor organization. This refers to employee
practices which create or spread employment by unnecessarily maintaining or increasing the number of
employees used, or the amount of time consumed to work on a particular job.
Art. 259 (d) and Art. 259 (e)
d. To cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other
things of value, in the nature of an exaction, for services which are not performed or not to be performed,
including the demand for fee for union negotiations;
e. To ask for or accept negotiations or attorneys fees from employers as part of the settlement of any issue in
collective bargaining or any other dispute;
Demanding and accepting negotiation fees. Relate to Art. 258(h) (employer giving negotiation fees to labor
organization)
If a labor organization asks the employer negotiation or attorneys fees then it is guilty of ULP regardless of
whether the proposal was accepted by the employer. If the employer agrees to the proposal and gives negotiation or
attorneys fees to the labor organization then it is guilty of ULP under Art. 258 (h). If the labor organization did not ask
negotiation fees or attorneys fees but nevertheless accepts the same, then it is guilty of ULP under Art. 259(d) while
the employer is guilty of ULP under Art. 258(h) of the labor code.
- Naay mga benefits na ihatag sa union para suhol aron ang demand nila dili taas. ULP kay maka influence
man sa CBA.
- Mura na cja og Sweet heart contract the contract which is supposed to be for the welfare of the
employees, mura na cya for the welfare of the employer.
Take note of the following:
SWEET HEART DOCTRINE considers it ULP for a Labor organization to ask for negotiation fees or
attorneys fees in settling bargaining issues or disputes.
SWEET HEART CONTRACT a CBA which does not substantially improve the employees wages
and benefits and whose benefits are partly provided by law.
Art.259 (f)
f. To violate a collective bargaining agreement
Only if gross in character; that is, flagrant and malicious refusal to comply with the economic provision of
CBA.
- Another form of ULP committed by Labor organization
BAR QUESTIONS: (set 1 no. 18)
The Securities and Exchange Commission approved a merger that allowed Broad Bank to absorb the assets and
liabilities of EBank. Broad Bank also absorbed EBanks rank and file employees without change in tenure, salary
and benefits. Broad Bank was unionized but EBank was not. The Broad Bank bargaining union requested the
management to implement the union security clause in their CBA by requiring the ex-EBankk employees to join
the union. Does the union security clause in the Broad Bank CBA bind the ex-EBank employees?
a) No, since the ex-EBank employees were not yet Broad Bank employees when that CBA was entered into
b) No, Broad Banks absorption of ex-EBank employees was not a requirement of law or contract, hence, the
CBA does not apply
c) Yes, Broad Banks absorption of ex-EBank employees automatically makes the latter union members of Broad
Banks bargaining union
d) Yes, since the right not to join a labor union is subordinate to the policy of unionism that encourages
collective representation and bargaining

Based on actual case: BPI vs. BPI employees union, Davao chapter (GR 164301-Aug.10, 2010)

BAR QUESTIONS: (set 1 no. 19)


Which of the following is not true in unfair labor practices committed by an employer?
a) Unfair labor practices cannot be committed unless the union has been formed and registered
b) The commission of unfair labor practice requires an employer-employee relationship
c) The offense of unfair labor practice prescribes in one (1) year
d) The list of unfair labor practices is exclusive

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Note: This is a false statement. ULP can be committed by employer even if the union has not yet been formed or
registered.
BAR QUESTIONS: (set 1 no. 20)
The following are unfair labor practices of employers, except:
a) Interrogating its employees in connection with their membership in the union or their union activities which
hampers their exercise of free choice
b) The grant of profit-sharing benefits to managers, supervisors and rank and file employees not
covered by the CBA
c) The cessation of a companys operations shortly after the organization of a labor union and the
resumption of business barely a month after
d) Withdrawal by the employer of holiday pay benefits stipulated under a supplementary agreement with the
union
Note: This is not unfair labor practice of employers. This is a valid exercise of management prerogative.
Illustrative Case:
Rizal Cement Workers Union vs. Madrigal and Company,et.al-Gr.No. L-19767-April 30, 1964
Issue: Was the lock-out made by the company constitutes ULP?
Ruling: No. the lock-out resorted to by the company was a defensive weapon or dictated by economic necessity. It
does not constitute ULP. For the discrimination to be considered ULP, the same must have been committed to courage
or discourage membership in the union. The refusal of the company to furnish work is a valid exercise of its
management prerogative as a defensive weapon for economic necessity. It is not a violation to the union members
right to self-organization.
TOTALITY OF CONTRACT DOCTRINE analyzing the actuations or remarks of the company whether the same
constitute ULP depends on the facts of the case
- Consider the circumstances whether these are done in good faith
- Tan-awon ang history sa company whether discriminatory ba cya sa right to self-organization.

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July 26, 2014


LABOR RELATIONS
Jurisdiction of Labor Arbiter (continuation)
1. UNFAIR LABOR PRACTICES
2. TERMINATION DISPUTES
3. MONETARY CLAIMS of:
A. If there is no demand for reinstatement, the following rules will apply:
Aggregate claim of each employee
Appropriate Jurisdiction
Exceeds P 5,000
Labor Arbiter
Less than P 5,000
Secretary of Labor
B. KASAMBAHAY
Before the Kasambahay law rule likewise applies to domestic helpers
Upon the effectivity regardless of amount DOLE Regional Director
Sec 37 of RA 10361 states that:
All labor-related disputes shall be elevated to the DOLE Regional Office having
jurisdiction over the workplace without prejudice to the filing of a civil or criminal action in
appropriate cases. The DOLE Regional Office shall exhaust all conciliation and mediation
efforts before a decision shall be rendered.
C. MIGRANT WORKERS monetary claims arising from employer-employee relationship (EER), or by
virtue of any law or contract including claims for actual, moral, exemplary or another forms of damages.
In relation to that, take note that the labor arbiter has no jurisdiction over claims or refund of fees
collected from migrant workers by the recruitment or manning agencies, as they fall within the exclusive and
original jurisdiction of the POEA.
NB:

Jurisdiction of the LA under Art 224 of the Labor Code is limited to disputes arising from EER which
can only be resolved by reference to the Labor Code, other Labor statues or collective bargaining
agreement.
Where the claim to the principal relief sought is to be resolved not by reference to the Labor Code,
other Labor statues or collective bargaining agreement but by the general law, the jurisdiction over
the dispute belongs to the regular courts of justice and not to the LA or NLRC.
Illustrative Cases:
(1) Smart Communications v. Astorga
Facts:
Astorga was terminated from employment, for which reason she filed a complaint for illegal dismissal.
Smart demanded that she pay the current value of the Honda Civic Sedan which was given to her under the
companys car plan program or surrender the same for proper disposition. Astorga however failed and refused
to do either, thus prompting Smart to file a suit for replevin with RTC of Makati.
Astorga moved to dismiss the complaint on the ground of lack of jurisdiction, failure to stipulate a cause of
action, letis pendentia and forum shopping.
According to her, the subject thereof, the car, pertains to a benefit arising from an employment contract; hence
jurisdiction is with the Labor Tribunal and not in the regular courts.
Issue: Who has jurisdiction on the replevin suit filed by Smart against Astorga for the return of the car?
HELD:
Contrary to the ratiocination, the RTC the rightfully assumed jurisdiction over the suit and acted well
within its discretion in denying Astorgas motion to dismiss. Smarts demand for the payment or, in the
alternative, the surrender of the car, is not a labor, but a civil, dispute. It involves the relationship of debtor and
creditor rather than employee-employer relations. As such, the dispute falls within the jurisdiction of the
regular courts.

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(2) Grotjahn v. Isnani


RULING:
The fact that they were employer and employee at the time of the transaction does not negate the civil
jurisdiction of the trial court. The case does not involve adjudication of a labor dispute but recovery of a sum of
money based on our civil laws on obligation and contract.
The issue cannot be resolved by reference to the Labor Code or other labor statutes but by reference
to the law on obligations and contracts for which reason that the Labor Arbiter has no jurisdiction despite the
fact that the parties have EER.
NB:

Jurisdiction of LA for money claims under Art. 224(c) should and only be limited to those arising from
statutes or contracts other than a Collective Bargaining
Agreement. If based on CBA, the LA no
longer have jurisdiction, since it now belongs
to the Voluntary Arbitrator or Panel of Voluntary
Arbitrators.
BAR QUESTIONS: (set 2 no. 7)

Sara has been working as housemaid for the Bojilov spouses for three (3) years. In the early morning of July
28, the spouses and Sara were watching the live coverage of the finals of an Olympic boxing match between a
Bulgarian and a Filipino which the foreign fighter won on points. Peeved by Saras angry remarks that the scoring
was unfair, the Bojilov spouses fired her on the spot.
Sara thereafter filed a complaint with the Regional Director of the DOLE for unpaid salaries totalling
P5,500.00. The Bojilov spouses moved to dismiss the complaint on the belief that Saras claim falls within the
Jurisdiction of the Labor Arbiter. Sara, however, claimed that the Regional Director can decide on her claim by
virtue of his plenary visitorial powers under Art. 128 and Art. 129 of the Labor Code, as amended, which
empowers the Regional Director to hear and decide, among others matters involving recovery of wages.
1. Whose position will you sustain? Explain.
2. Will your answer be the same if Saras claim is P4,500 with reinstatement? Explain.
Answer:
Note: This question was asked in the bar before the enactment of the Kasambahay Law. This can then be answered:
In determining whether or not there is a claim for reinstatement, LA. If there is no claim, depending on the claims. But!
Upon the enactment of the Kasambahay Law, which we will now follow, ALL claims, regardless of the amount, fall
under the jurisdiction of the DOLE Regional Director.
BAR QUESTIONS: (set 2 no. 8)
The company filed with the Regional Trial Court a civil action to collect from Mr. X, its employee, the unpaid
balance of the latters loan. Mr. X moved to dismiss the complaint on the ground of lack of jurisdiction. If you were
the judge, would you grant the petition?
Answer: (Base your answer on the case of Georg v. Isnani)
If I were the judge I would not grant the motion since the RTC has jurisdiction over the case. The fact that they
were employer and employee during the transaction does not negate the civil jurisdiction of the trial court over actions
involving the collection of sum of money which can be resolved by reference to the civil law on obligations and
contracts.
BAR QUESTIONS: (set 2 no. 9)
A neighbors gardener comes to you and asks for help because his employer withheld his salary for two (2)
months amounting to P4,000.00. Where will you advise him to file his complaint?
a) Labor Arbiter
b) DOLE Regional Director
c) Conciliator/Mediator
d) MTC Judge
BAR QUESTIONS: (set 2 no. 10)
Who has jurisdiction over a money claim instituted by an overseas Filipino worker?
a) Labor Arbiter
b) National Labor Relations Commission
c) Labor Arbiter concurrently with the regular courts
d) National Labor Relations Commission concurrently with the regular courts

28

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Claims arising from employer-employee relationship connotes that the Labor Arbiter can implicate not only
claims on damages of an employee against his employer, but also counterclaims for damages by and employer
against his employee; provided, it arose out of the parties employment relationship.
Illustrative Case: (Jurisdiction of the Labor Arbiter: Claims for damages)
(3) Tolosa v. NLRC
RULING:
Claims for damages under Art. 224 (par. 4) must have reasonable connection with any of the claims
provided for in the article in order to be cognizable with the LA. Only when there is such a connection with the
other claims, can the claim for damages be considered arising from EER. In the present case, petitioners
claim for damages is not related to any other claim under Art. 217, under labor statutes, or collective
bargaining agreement.
Moral damages would be recoverable where the dismissal of the employee was not only effected without
authorized cause or due process for which relief is granted by the Labor Code but was attended by bad faith or fraud
or constituted an act of oppressive to labor or was done in a manner contrary to morals, good customs, or public policy
for which the obtainable relief is determined by the Civil Code. (page 56)
When one institutes a proceeding before the LA, he should make a claim for all said reliefs. He cannot, to be
sure, be permitted to prosecute his claims piecemeal. He cannot institute proceedings separately and
contemporaneously, in a court of justice upon the same cause of action or a part thereof.
To sum up, the LA has NO jurisdiction over the following:
a. Claims for damages arising from negligence of a co-worker (Tolosa Case)
b. Claims for damages arising from breach of contract of employment
Illustrative Case: Singapore Airlines v. Pano
The case pertains to claims for damages arising from breach of contract of
employment. Ang empleyado gipada sa gawas for training. In his contract, one of the
stipulations is that he cannot resign from his employment for 2 years because of that training.
But what happened was that he violated the contract. After he arrived in the Philippines from
that training, he immediately resigned. Of course, dakog damage ang company kay gi-train
gud siya sa gawas, unya pag-uli niya, ni-resign siya. So the company filed a complaint for
damages arising from breach of contract of employment against the employee who resigned.
Because actually class, di na mapugngan sa company kay involuntary servitude na na xa.
Pero ug dili ka mapugngan sa company from resigning, you are liable for damages for breach
of contract.
Issue:
WON the regular court has jurisdiction over the complaint.
RULING:
YES. The RTC has jurisdiction over the complaint, because the issue cannot be
resolved with reference to the labor code, but by the provisions on obligations and contracts.
So claims for damages arising from breach of contract of employment, the LA has no
jurisdiction because the issue cannot be resolved by reference to the labor code and other
labor statutes, but by reference to the civil code, on provisions of obligations and contracts.
c. Complaint for damages arising from malicious prosecution
d. Claims for damages arising from slanderous remarks to the corporate officer
BAR QUESTIONS: (set 2 no. 11)
Pablo Bagsakin, a law graduate who got tired of taking the bar examinations after several unsuccessful attempts,
joined the Investigation Division of Warak Transport Company. From the very beginning Pablo never liked his
manager because the latter always made fun of the formers accident reports. When Pablos patience ran out he
walked up to his manager who was reviewing the investigators assignment and workload and boxed him until the
latter collapsed. The incident happened during office hours at the Investigation Division in the presence of his coemployees. Pablo was dismissed without any investigation and was no longer allowed to enter the company
premises. The manager filed a complaint for damages against Pablo before the Pasig Regional Trial Court (RTC).
In turn Pablo filed a case of illegal dismissal with the labor arbiter against the manager and the transport
company. Pablo asked for reinstatement without loss of seniority rights with full back wages. Pablo also filed

29

NOTES IN LABOR RELATIONS

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before the RTC Pasig a Motion to Dismiss the damage suit against him alleging that the Labor Arbiter before
whom the illegal dismissal case was ending had exclusive jurisdiction over both cases. Resolve the motion to
dismiss. Discuss fully.
Answer:
The Motion to Dismiss should be denied. The damage suit filed by the manager against Pablo does not arise
from EER. While the case involves an employer and his employee, it is not the EER between the two that gives rise to
the damage suit; instead, it is based solely on an alleged tort which can give rise to a damage suit under the civil code.
Thus the LA has no jurisdiction over the damage suit. Otherwise stated, the issue cannot be resolved by reference to
the Labor Code or other labor statutes but by reference to the civil code provisions on torts.
BAR QUESTIONS: (set 2 no. 12)
Mariet Demetrio was a clerk-typist in the Office of the President of a multinational corporation. One day she was
berated by the President of the company. The latter shouting invectives at her in the presence of employees and
visitors for a minor infraction she committed. Mariet was reduced to tears out of shame and felt so bitter about the
incident that she filed a civil case for damages against the company president before the regular courts. Soon
thereafter, Mariet received a memorandum transferring her to the office of the General Manager without demotion
in rank or diminution in pay. Mariet refused to transfer.
With respect to the civil suit for damages, the company lawyer filed a Motion to Dismiss for lack of jurisdiction
considering the existence of an employer-employee relationship and therefore, it is claimed that the case should
have been filed before the Labor Arbiter.
Rule on the Motion to Dismiss. Should it be granted or denied? Explain briefly.
Answer:
The MTD should be denied. It is the regular courts and not the LA that has jurisdiction to the suit for damages.
The damages are not arising from the EER which should have placed the suit under the jurisdiction of the LA. The suit
arising from the fact is that the president of the company shouted invectives at her in the presence of employees and
visitors. Her complaint is for damages against an officer of the company based on slanderous language allegedly
made by the latter. This falls under the jurisdiction of the ordinary courts because this is a simple action for damages
from tortious act allegedly made by the employer. AGAIN, the issue cannot be resolved by reference to the labor code,
but by the civil code provisions on torts.
BAR QUESTIONS: (set 2 no. 13)
The company filed with Regional Trial Court a Complaint for damages against a former employee for alleged
violation of a provision of their employment contract to the effect that the employee should not for a period of two
(2) years from the termination of his service accept employment in a firm, entity or undertaking engaged in a
business similar to or in competition with that of the company. The complaint sought the payment of liquidated
damages stipulated in the employment contract. Does the RTC have jurisdiction over the case? Why?
Answer:
YES. The RTC has jurisdiction over the case. The company does not ask any relief under the labor code. It
seeks to recover damages agreed upon in the contract. The issue cannot be resolved by reference to the Labor code,
but by the provisions of the civil code on obligations and contracts.
BAR QUESTIONS: (set 2 no. 14)
To enforce the decision of the Regional Office of the Department of Labor, the DOLE Regional Sheriff levied upon
the buildings and improvements standing on a lot in Mandaue City. The levied properties were subsequently sold
at public auction to the employees. Thereafter, owners of the lot upon which the levied properties stood
commenced an action before the Regional Trial Court to annul the public auction sale on the ground that they are
the owners and actual occupants of said properties.
Does the Regional Trial Court have jurisdiction over the case?
Answer:
Yes the RTC has jurisdiction over a case where a 3 rd party or a stranger to the action asserts a claim over the
property levied upon. The claimant may vindicate his claim by an independent action in the proper civil court.
**Kita mo anang sa newspaper? Notice to the Public: this is to inform that Marvin Magaipo is no longer
connected with blah blah blah company and any transaction with him shall no longer ana..basta ana. Is the employee
entitled to damages by that publication? Di ba, mauwaw baja pod ta. Kita mo ana? Mauwaw baja pod ta. Kita ba lage
mo ana? Naa pay picture. Is the employee entitled to damages?
IN the case of De los Reyes v. Espiritu, the employee is not entitled to damages. It is merely an ordinary
notice usually published in the newspapers informing the public that a certain employee is no longer connected with

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an employer. This is necessary to protect its business from loss or injury. Take note sa notice class, wala baya nagingon nga kani nangawat, etc. So kung ma-lawyer na mo, unya naa moduol ninyo asking WON he/shes entitled to
relief by virtue of that ad/publication, you tell your client that it is merely an ordinary notice.
4. CASES ARISING FROM VIOLATION OF ART. 278 OF THE LABOR CODE (formerly Art. 264) STRIKES
AND LOCKOUTS
Note: Criminal cases in relation to strike, LA has no jurisdiction, kay adto na sa regular courts.
EXCEPTION:
When the president of the Philippines or Secretary of Labor assumes jurisdiction over the disputes or
refers the same to the NLRC for compulsory arbitration.
In that case, it is already the Sec. of Labor or NLRC which has jurisdiction over the questions involving
the legality of strikes and lockouts.
(Same with ULP, the LA has jurisdiction, unless mag-strike and mga industries nga
indispensable sa national interest, di ba the Pres. of the Phils. or Sec of Labor will assume the
case. The Sec of Labor will either decide the case or certify it to the NLRC for compulsory
arbitration.
Sa lain pang pagkaistorya, ipasa niya sa NLRC for compulsory arbitration. In that case the LA
no longer has jurisdiction over the ULP kay it will be subsumed by the certified case. Usahon
ra na sila. So its either the Sec of Labor or NLRC that will have jurisdiction over that case.
Same with the strikes and lockouts, its the labor arbiter who has jurisdiction, kay once the
DOLE Secretary assumes jurisdiction over the labor dispute, mawala na ang jurisdiction sa
LA.
5. ALL OTHER CLAIMS ARISING FROM Employee-Employer relationship
Claim for attorneys fees by a lawyer-employee is a claim arising from Employee-Employer
Relationship where his entitlement to such attorneys fees is stipulated and is part on the conditions of
his employment contract.
6. ENFORCEMENT OR ANNULMENT OF COMPROMISE AGREEMENTS
When there is no compliance by any of the parties, the LA has the jurisdiction with respect to the
enforcement or annulment of compromise agreements.
7. CONTESTED CASES UNDER THE EXCEPTION CLAUSE OF ART. 128 (b) OF THE LABOR CODE
Visitorial and Enforcement Power of the DOLE Regional Director to enforce compliance to Labor
Standard Laws.
Note: In labor standards, it can be exercised even if the individual claim exceeds P 5,000. In 128,
naa pay EER, as against 129 nga wala nay EER. Sa 128 class, because EER still exist, the
power to enforce compliance with the Labor standard laws can be exercised by the DOLE
Regional Director even if it exceeds P 5,000. But take note class: there are instances when the
Regional Director is divested of his jurisdiction under 128 and the jurisdiction is transferred to the
LA. (gi-discuss ni sa labor standards )
1. When (a) the employer contests the findings of the Labor Regulations Officer and
raises issues thereon, and in order to resolve such issues, (b) there is a need to
examine evidentiary matters, and (c) such matters are not verifiable in the ordinary
course of inspection, if these are present, the regional director is divested of its jurisdiction
under Art. 128 and the jurisdiction is transferred to the LA.
**MEMORIZE the 3 elements (a,b,c) nga ma-divested ug jurisdiction and DOLE
Regional Director, and transferred to the Labor Arbiter. MEMORIZE!!!!!
To refresh your mind:
128 refers to complaints while employed, e.g. complaints about salaries or
benefits
2 kinds of visitorial powers of the Regional Director:
Complaint inspection naay reklamo; ang mahitabo, the DOLE will visit
the company and inspect the records. Pag-tan-aw sa records ug wa
naghatag ug saktong sweldo ang employer, the RD of DOLE thru its
representative can enforce the compliance of the labor standard laws
regardless of the fact that the claims exceed P 5,000.

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For example, kada empleyado, gi-total sa RD sa DOLE, wa kahatag ang
employer; ang kada empleyado nay claim nga, say, P 100,000 each,
bisan P 100k pa na, the RD has jurisdiction to enforce that claim. Why?
Based on Art. 128, EER still exist! It is different from 129 kay wala nay
129, mao nang mag-depende sa claims. But then again, there is an
instance where the RD is divested with jurisdiction.
Routinary inspection

8. LA HAS NO JURISDICTION OVER ENTITIES IMMUNE FROM SUIT, EXCEPT WHEN SUCH ENTITIES
PERFORM PROPRIETARY ACTIVITIES
By entering into employment contract, in the discharge of its proprietary functions, it impliedly divested itself of
its sovereign immunity from suit.
BAR QUESTIONS: (set 2 no. 15)
In 1990, Vic Garcia was hired by the International Labor Organization (ILO) Office in Manila as a bookkeeper for
five years. On January 5, 1994, he was advised that his services were being terminated for loss of confidence.
Garcia questioned the dismissal by ILO Manla as arbitrary and without benefit of due process.
1) If you were counsel for ILO, what defence/s should you put up?
2) If you were the labor arbiter, how would you decide the case?
Answer:
The defense that I will put up is that being an international agency, the ILO enjoys immunity mainly functional
independence and freedom from control of the state in whose territory its office is located and is thus beyond the
jurisdiction of the Labor Arbiter.
If I were the LA, I will grant the Motion to Dismiss, the ILO being an international agency, the same is beyond
the jurisdiction from the LA and immune from the legal reach and processes of the administrative agencies of the
country where it is found for the reason that the subjection of such organization to the authority of the local agencies
would afford the convenient medium to which the host government would interfere in its operations or even influence
the control its policies and decisions and decide such subjection to local jurisdiction would impair the capacity of such
body to impartially discharge its duties and responsibilities. Basically, it is immune from suit; therefore, the LA has no
jurisdiction.
BAR QUESTIONS: (set 2 no. 16)
A was able to obtain a judgment against his former employer, Company B, for P750,000.00. In executing the
judgment in favour of A, the labor arbiter sought to levy on Bs office equipment. B filed an action for damages and
injunction against the labor arbiter before the Regional Trial Court of the province where Bs offices are located. Is
Bs action tenable? Why?
Answer:
The case is against the LA. Who has jurisdiction? The action is not tenable. In case of Delta Ventures
Resources v. Navarro, the SC ruled that the regular courts have no jurisdiction to act on labor cases on various
incidents arising therefrom, including the execution of the decisions, awards or orders.
Alternative Answer: The RTC has jurisdiction, if the action is limited to the filing of the damage suit, against the labor
arbiter, because there exist no EER between B and the LA and there is no labor dispute between them.
BAR QUESTIONS: (set 2 no. 17)
Tina Aquino a domestic helper in the household of Fidel Aldeguer, filed an action in the Regional Office of the
Department of Labor and Employment (DOLE) for recovery of unpaid wages amounting to P3,500.00 and
P1,499.00 as moral damages. Aquino claimed that the amount of P3,500.00 is equivalent to the P500.00 a month
she failed to receive for the last seven months of her employment with Aldeguer, based on their agreed P2,500.00
monthly salary. Aldeguer moved to have Aquinos complaint dismissed, alleging that as a domestic helper Ms.
Aquino should have first brought the matter to the Lupong Barangay. If you were the regional director, how would
you resolve the matter?
Answer:
With the enactment of the Kasambahay Law, claims by a domestic helper should be filed with the DOLE
Regional Director. It does not require prior filing with the Lupong Tagapamayapa.
9. WAGE DISTORTION IN AN UNORGANIZED ESTABLISHMENT
Organized with CBA, LA has no jurisdiction because any dispute would be resolved by the grievance
machinery and if it fails, with the voluntary arbitrator or panel of voluntary arbitrator

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NB: POINTS TO REMEMBER ABOUT THE JURISDICTION OF THE LA:


(i)

Doctrine on Forum Non conveniens (Conflict of Laws)


Illustrative Case:
Manila Hotel Corp. v. NLRC

Ruling:
The NLRC was a seriously inconvenient forum. The main aspects of the case transpired in two foreign
jurisdictions and the case involves purely foreign elements. The only link that the Philippines has with the case is that
respondent Santos is a Filipino citizen. The Palace Hotel and MHICL are foreign corporations. Not all cases involving
our citizens can be tried here.
Under the rule of forum non conveniens, a Philippine court or agency may assume jurisdiction over the case if it
chooses to do so provided: (1) that the Philippine court is one to which the parties may conveniently resort to; (2) that
the Philippine court is in a position to make an intelligent decision as to the law and the facts; and (3) that the
Philippine court has or is likely to have power to enforce its decision. The conditions are unavailing in the case at bar.
(ii)
(iii)

The LA has no appellate jurisdiction.


No injunctive power
Question:
WON the RTC has jurisdiction over the constitutionality of the CBA?
Illustrative Case:
Halaguea vs. PAL
Answer:
RTC has jurisdiction. The subject of the litigation is incapable of pecuniary estimation cognizable
exclusively by the RTC. Being an ordinary civil action, the same is beyond the jurisdiction of the Labor
tribunals. The said issue cannot be resolved solely by applying the labor code, rather it requires the
application of the constitution. Labor statutes, law on contracts, the convention on the elimination of all
forms of discrimination against women, and the power to apply and interpret the Constitution [are] within
the jurisdiction of trial courts, a court of general jurisdiction. (2010 BAR exam)

(iv)

Tax deductions by benefits due to an employee


Illustrative Case:
Santos vs. Servier Phils.
Facts: Company taxed the benefits claimed by the heirs of the employee.
Question: WON the LA has jurisdiction to rule on the legality on the tax deductions made by the
respondent employer from the petitioners total retirement benefits for taxation purposes.
The Labor Arbiter and NLRC ruled that it has no jurisdiction over the issue on tax deductions.
RULING: The SC ruled it has jurisdiction over the issue on illegal deduction. It is noteworthy that petitioner
demanded the completion of her retirement benefits, including the amount withheld by respondent for
taxation purposes. The issue of deduction for tax purposes is intertwined with the main issue of whether or
not the petitioners benefits have been fully given her. It is, therefore, a money claim arising from the EER,
which clearly falls within the jurisdiction of the LA & NLRC.

(Note: Hand-outs ni maam, Cases beyond the jurisdiction of the LA)


BAR QUESTIONS: (set 2 no. 18)
In what instances do labor arbiters have jurisdiction over wage distortion cases?
a) When jurisdiction is invoked by the employer and employees in organized establishment
b) When the case is unresolved by grievance committee
c) After the panel of voluntary arbitrators has made a decision and the same is contested by either party
d) In unorganized establishment when the same is not voluntarily resolved by the parties before the
NCMB
BAR QUESTIONS: (set 2 no. 19)

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Is a termination dispute a grievable issue?


a) Yes, if the dismissal arose out of the interpretation or implementation of the CBA
b) No, once theres actual termination, the issue is cognizable by a labor arbiter
c) Yes, it is in the interest of the parties that the dispute be resolved on the establishment level
d) No, a voluntary arbitrator must take cognizance once termination is made effective.
Powers of the NLRC:
1. Injunctive power
2. Power to conduct ocular inspection
BAR QUESTIONS: (set 2 no. 20)
What is the jurisdiction of the NLRC? 1995
Answer:
Enumerate the cases under original jurisdiction of the NLRC and cases under the appellate
jurisdiction of the NLRC.
ORIGINAL Jurisdiction of the NLRC
1. CERTIFIED CASES FROM THE SECRETARY OF LABOR
In strikes or lockouts involving industries indispensable to the national interest. The Sec. of Labor may
assume jurisdiction over the labor dispute OR certify it to the NLRC for compulsory arbitration.
NB: All cases between the parties that are already been filed or may be filed, are considered
subsumed or absorbed by the certified case, and shall be decided by the commission sitting in the
appropriate division. Why? Because adjudicatory functions of the commission are exercised through
its division. NLRC sitting en banc cannot take cognizance of the petition for relief from judgment
because its adjudicatory functions are exercised through its divisions.
Thus, the NLRC has jurisdiction of ULP cases.
GR: None, jurisdiction is with the Labor Arbiter.
XPN: In national interest cases, when Sec of Labor assumes jurisdiction and certifies the same for
compulsory arbitration, all other cases are considered subsumed and certified and absorbed by the
certified case. So in that manner class, the NLRC will resolve the ULP case. From the LA it will be
transferred to the NLRC kay usahon na sila, considered subsumed, and shall be decided by the
commission sitting in the appropriate division.
The decision becomes final & executory after ten (10) calendar days from the receipt of the decision
by the parties.
After the NLRC Court of Appeals (CA) thru Rule 65: special civil action for certiorari
2. ISSUANCE OF TRO or INJUNCTION
3. TERMINATION DISPUTES

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Aug.9, 2014

Labor relations
NATIONAL LABOR RELATIONS COMMISSION
Art. 225. Powers of the Commission
The commission shall have the power and authority:
(a) To promulgate rule and regulations governing the hearing and disposition of cases before it and its
regional branches, as well as those pertaining to its internal functions and such rules and regulations
as may be necessary to carry out the purposes of this code;
(b) To administer oaths, summon the parties to a controversy, issue subpoenas requiring the attendance
and testimony of witnesses or the production of such books, paper, contracts, records, statement of
accounts, agreements, and others as may be material to a just determination of the matter under
investigation, and to testify in any investigation or hearing conducted in pursuance of this Code;
(c) To conduct investigation for the determination of a question, matter or controversy within its
jurisdiction, proceed to hear and determine the disputes in the absence of any party thereto who has
been summoned or served with notice to appear, conduct its proceedings or any part thereof in public
or in private, adjourn its hearings to any time and place, refer technical matters or accounts to an
expert and to accept his report as evidence after hearing of the parties upon due notice, direct parties
to be joined in or excluded from the proceedings, correct, amend, or waive any error, defect or
irregularity whether in substance or in form, give all such direction as it may deem necessary or
expedient in the determination of the dispute before it, and dismiss any matter or refrain from further
hearing or from determining the dispute or part thereof, where it is trivial or where further proceedings
by the Commission are not necessary or desirable; and
(d) To hold any person in contempt directly or indirectly and impose appropriate penalties therefor in
accordance with law. A person guilty of misbehavior in the presence of or so near the Chairman or any
member of the Commission or any Labor Arbiter as to obstruct or interrupt the proceedings before the
same, including disrespect toward said officials, offensive personalities toward others, or refusal to
be sworn or to answer as a witness or to subscribe an affidavit or deposition when lawfully required to
do so, may be summarily adjudged in direct contempt by said officials and punished by fine not
exceeding five hundred pesos (P500) or imprisonment not exceeding five (5) days, or both if it be the
Commission, or a member thereof, or by a fine not exceeding one hundred pesos (P100) or
imprisonment not exceeding one (1) day, or both if it be a Labor Arbiter. The person adjudged in direct
contempt by a Labor Arbiter may appeal to the Commission and the execution of the judgment shall
be suspended pending the resolution of the appeal upon the filing of such person of a bond on
condition that he will abide by and perform the judgment of the Commission should the appeal be
decided against him. Judgment of the Commission on direct contempt is immediately executory and
unappealable. Indirect contempt shall be dealt with by the Commission or Labor Arbiter in the manner
prescribed under Rule 71 of the Revised Rules of Court; and
(e) To enjoin or restrain any actual or threatened commission of any or all prohibited or unlawful acts or
to require the performance of a particular act in any labor dispute which, if not restrained or performed
forthwith, may cause grave or irreparable damage to any party or render ineffectual any decision in
favor of such party: Provided, that no temporary or permanent injunction in any case involving or
growing out of a labor dispute as defined in this code shall be issued except after hearing the
testimony of witnesses, with opportunity for cross-examination, in support of the allegations of a
complaint made under oath, and testimony in opposition thereto, if offered, and only after a finding a
fact by the Commission, to the effect:
1) That prohibited or unlawful acts have been threatened and will be committed unless
restrained, 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 person or persons, association or organization making the threat or
committing the prohibited or unlawful act or actually authorizing or ratifying the same after
actual knowledge thereof;
2) That substantial and irreparable injury to complaints property will follow;
3) That as to each item of relief to be granted, greater injury will be inflicted upon complainant by
the denial of relief than will be inflicted upon defendants by the granting relief;
4) That complainant has no adequate remedy at law; and

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5) That the public officers charged with the duty to protect complainants property are unable or
unwilling to furnish adequate protection.
Such hearing shall be held after due and personal notice thereof has been served, in such manner as
the Commission shall direct, to all known persons against whom relief is sought, and also to the Chief
Executive and other public officials of the province or city within which the unlawful acts have been
threatened or committed charged with the duty to protect complainants property: Provided, however, that if a
complainant shall also allege that, unless a temporary restraining order shall be issued without notice, a
substantial and irreparable injury to complainants property will be unavoidable, such a temporary restraining
order may be issued upon testimony under oath, sufficient, if sustained, to justify the Commission in issuing
a temporary injunction upon hearing after notice. Such a temporary restraining order shall be effective for no
longer than twenty (20) days and shall become void at the expiration of said twenty (20) days. No such
temporary restraining order or temporary injunction shall be issued except on condition that complainant
shall first file an undertaking with adequate security in an amount to be fixed by the Commission sufficient to
recompense those enjoined for any loss, expense 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 order or against the granting of any injunctive relief sought in the same
proceeding and subsequently denied by the Commission.
The undertaking herein mentioned shall be understood to constitute an agreement entered into by the
complainant and the surety upon which an order may be rendered in the same suit or proceeding against said
complainant and surety, upon a hearing to assess damages, of which hearing complainant and surety shall
have reasonable notice, the said complainant and surety submitting themselves to the jurisdiction of the
commission for that purpose. But nothing herein contained shall deprive any party having a claim or cause
of action under or upon such undertaking from electing to pursue his ordinary remedy by suit at law or in
equity: provided further, that the reception of evidence for the application of a writ of injunction may be
delegated by the commission to any of its labor arbiters who shall conduct such hearings in such places as
he may determine to be accessible to the parties and their witnesses and shall submit thereafter his
recommendation to the commission.
Art. 226 Ocular Inspection
The chairman, any Commissioner, labor arbiter or their duly authorized representative, may at any
time during working hours, conduct an ocular inspection on any establishment, building, ship or vessel, place
or premises, including any work, material, implement, machinery, appliance or any object therein, and ask any
employee laborer or any person as the case may be for any information or data concerning any matter or
question relative to the object of the investigation.
Notes:
1. Rule-making Power
Promulgate rules and regulations:
Governing the hearing and disposition of cases before it and its regional branches
Pertaining to its internal functions
Those that may be necessary to carry out the purposes of this Code
2. Power to Issue Compulsory Processes
Administer oaths
Summon parties
Issue subpoenas ad testificandum and duces tecum
3. Power to Investigate and Hear Disputes within its Jurisdiction
Conduct investigations for the determination of a question, matter or controversy within its jurisdiction
Proceed to hear and determine the disputes
4. Contempt Power
5. Power to Conduct Ocular Inspection
6. Injunctive Power

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POWERS AND DUTIES

Again!
Art. 224. Jurisdiction of the Labor Arbiters and the Commission.
a. Except as otherwise provided under this Code, the Labor Arbiters shall have original and exclusive
jurisdiction to hear and decide, within thirty (30) calendar days after the submission of the case by the parties
for decision without extension, even in the absence of stenographic notes, the following cases involving all
workers, whether agricultural or non-agricultural:
1. Unfair labor practice cases;
2. Termination disputes;
3. If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of
pay, hours of work and other terms and conditions of employment;
4. Claims for actual, moral, exemplary and other forms of damages arising from the employer-employee
relations;
5. Cases arising from any violation of Article 264 of this Code, including questions involving the legality of
strikes and lockouts; and
6. Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, all other
claims arising from employer-employee relations, including those of persons in domestic or household
service, involving an amount exceeding five thousand pesos (P5,000.00) regardless of whether accompanied
with a claim for reinstatement.
b. The Commission shall have exclusive appellate jurisdiction over all cases decided by Labor Arbiters.
c. Cases arising from the interpretation or implementation of collective bargaining agreements and those
arising from the interpretation or enforcement of company personnel policies shall be disposed of by the
Labor Arbiter by referring the same to the grievance machinery and voluntary arbitration as may be provided
in said agreements.
In ULP:
-

NLRC has no jurisdiction (LA has)


Except when the ULP involves national interest where it will be decided by the Commission seated by the
appropriate division
Final and executory 10 days from the receipt of the decision by the parties
Appealable to the CA thru Rule 65

Original Jurisdiction of NLRC


1. Certified cases for compulsory arbitration (ULP involving national interest)
-Jurisdiction is to the secretary of labor, this pertains to the national interest cases assumed by the sec. of
labor and certified to the NLRC for compulsory arbitration
-All cases between the parties that are already filed and may be filed shall be considered subsumed or
absorbed by the certified case and shall be decided by the commission setting in appropriate division
2. Issuance of TRO and/or injunction
- BUT the issuance of restraining orders and injunctions are frowned upon. Injunctions in labor dispute are not
favored. It should be issued only after a strict and rigorous compliance with the statutory requirements. These
can only be issued formerly under Article 218 and formerly under Article 264. Injunction in labor dispute cannot
be issued ex parte.
- The authority of the NLRC to issue injunction is conditioned upon the existence of a Labor Dispute. Without a
labor dispute the authority to issue injunction belongs to the regular courts.
What is a labor dispute?
Labor Dispute includes any controversy in matters concerning terms and conditions of employment
for the association and representation of person in negotiating, fixing, maintaining, changing or arranging the
terms and conditions of employment, regardless of whether the disputant stands in the proximate relation of
an employer- employee.

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A labor dispute can exist even if the disputant do not stand in the proximate relation of an employer and
employee, thus, there not need a direct employment relationship between the parties. An indirect interest is enough to
bring the matter within the purview of the term labor dispute.
Illustrative Cases:
Philippines Airlines Inc v NLRC
The Ruling:
It is an essential requirement that there must be a labor dispute between the contending parties before the
Labor Arbiter. In the present case, there is no labor dispute between the employer and the private respondents who
are the dismissed employees as there has yet been no complaint for the illegal dismissal filed to the Labor Arbiter by
the private respondent against the petitioner.
Trade Union of the Philippines Allied Services vs. Jose Coscolluela
The Ruling:
At this stage, there appears to be no labor dispute between the petitioner and private respondents for which
reason the latter was justified in seeking relief in respondent charge court. The unfair labor complaint filed by the
petitioner union does not prove a labor relationship by the same token it was improper for the private respondent to
have filed the case no. 9 with the NLRC.
Phil Association of Free Labor Union vs. Salas
The Ruling:
From the foregoing, it is clear that the jurisdiction of the court of industrial relations can be invoke only when
theres a dispute arising between or affecting employees and employer or when an employment relationship exist
between the parties. There being no labor dispute between the petitioner and the private respondent the court of first
instance has the jurisdiction to issue the injunctive relief sought by the private respondent in civil case no. 1460, the
latter case can proceed independently, of the pending the case to the court of industrial relation.
Rustans Supervisory Union v Dalisay
The Ruling:
It has long been settled that where acts complained of by the company are directly interwoven with the unfair
labor practice charge against it by the union, the main case does not come under the jurisdiction of the RTC, even if it
involves violence, intimidation and coercion as averred in the complaint, as in this case, for the industrial courts
jurisdiction is exclusive. If the purpose of the action is to obtain some injunctive relief against certain acts of the union
members, the same can be obtained from the industrial court which is given ample powers to act thereon.
Procedural Requirement in the Issuance of injunction:
1) There must have been a verified petition alleging acts which if not restrained or performed forthwith may
cause grave or irreparable damage to any party or render ineffectual any decision in favor of such party.
2) There must be a personal notice served to all persons against to whom the relief is sought including the chief
executive and other public official who are charged with the duty to protect complainants property with the
province or city within which unlawful acts may be threatened or committed.
Take note of these procedural requirements because they are not available on Injunction under Rule 58 of the Rules
of Court. This is available only in labor cases.
*Personal notice must be served to public officials charged with the duty to protect complainants property in the
province or city within which the unlawful acts has been threatened or committed because if the public official charged
with the duty to protect complainants property can perform his duties, the injunction will not be issued because
injunction or TRO is not favored in labor cases.
3) Hearing wherein the testimonies and witnesses for both parties shall be taken with opportunity for cross
examination.
Substantive requirement:
A temporary or permanent injunction in the labor dispute shall be issued only after a factual finding by the
NLRC that
1.
Prohibited or unlawful acts have been threatened or may be committed and will be continued unless
restrained and substantial and irreparable injury to complainants property will follow. Greater injury will be
inflicted to the complainant by denial of relief than by granting the relief and the complainant has no adequate
remedy at law and the public officer charged with the duty to protect complainants property are unable or
unwilling to furnished adequate protection. The reception of evidence may be delegated to the Labor Arbiter
and the Labor Arbiter shall thereafter submit his report or recommendation to the Commission within 15 days
from such delegation. Injunction or TRO can only be issued against person, association or organization

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making the threat or committing the prohibited or unlawful act or actually authorizing or ratifying the same after
actual knowledge thereof.
Injunction will not lie to restrain an employer from conducting a disciplinary proceeding against an
erring employee. In the very nature of things, investigation and imposition of disciplinary action against the
erring employees is a function that solely and exclusively belongs to an employer. Such investigation cannot
be parted or nullified by arguing that the employer is the accuser, prosecutor and judge at the same time.
Requirements in Issuing Injunction:
a. A hearing held after due and personal notice thereof has been served, in such manner as the Commission
shall direct, to all known persons against whom relief is sought, and also to the Chief Executive and other
public officials of the province or city within which the unlawful acts have been threatened or committed with
the duty to protect complainants property.
b. Reception at the hearing of testimony of witnesses, with opportunity for cross-examination.
c. A finding of fact by the Commission, to the effect:
1. That prohibited or unlawful acts have been threatened and will be committed and will be continued unless
restrained, but no injunction or TRO shall be issued on account of any threat, prohibited or unlawful act,
except against the person, or persons, association or organization making the threat or committing the
prohibited or unlawful act or actually authorizing or ratifying the same after actual knowledge thereof.
2. That substantial and irreparable injury to complainants property will follow.
3. That as to each item of relief to be granted, greater injury will be inflicted upon complainant by the denial
of relief than will be inflicted upon the defendants by the granting of relief.
4. That complainant has no adequate remedy at law.
5. That the public officers charged with the duty to protect complainants property are unable or unwilling to
furnish adequate protection.
Conditions for Issuance Ex Parte a Temporary Restraining Order
General Rule: It cannot be issued ex parte
Exception: A TRO which is valid for 20 days may be issued ex parte under certain conditions:
1. The complainant shall also allege that, unless a TRO shall be issued without notice, a substantial and
irreparable injury to complainants property will be unavoidable
2. There is testimony under oath, sufficient if sustained, to justify the Commission in issuing a TRO upon hearing
after notice.
3. The complainant shall first file an undertaking with adequate security in an amount to be fixed by the
Commission sufficient to recompense those enjoined for any loss, expense 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 order or against the granting of any injunctive
relief sought in the same proceeding and subsequently denied by the Commission.
4. The TRO shall be effective for no longer 20 days and shall become void at the expiration of said 20 days.
The issuance should be characterized by care and caution and should be justified by considerations
of extreme necessity when it would cause substantial or irreparable injury.
An injury is considered irreparable when it 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 exist no certain pecuniary
standard for the measurement of damages.
In the issuance of a TRO or injunction there is a necessity to post a cash bond of P50, 000 or such
higher amount that may be determined by the Commission. The purpose of the bond is to recompense those
enjoined for any loss, expense or damage caused by the improvident or erroneous issuance of such order or
injunction.
In the issuance of TRO or injunction, there is a need of prior resort to the local authorities whose duty
is to keep the peace and have either advised that they could not or would not keep it, or advising that they
could and would have failed through inability or unwillingness to do so.
For this reason, these public officers should be served the notice of hearing of the application for
injunction.
When Is an Injury Considered Irreparable?

If it is of such constant and frequent recurrence that no fair and reasonable redress can be had therefor in a
court of law or where there is no standard by which their amount can be measured with reasonable accuracy,
that is, it is not susceptible of mathematical computation.

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When it cannot be adequately compensated in damages due to the nature of the injury itself or the nature of
the right or property injured or where there exists no certain pecuniary standard for the measurement of
damages.

Appellate Jurisdiction of the NLRC


1. Decision of the Regional Director and authorized hearing officer of the DOLE Regional Office on small money
claims which is not exceeding P5,000 and the complaints does not include a claim for reinstatement.
Question:
Is it necessary to file a motion of reconsideration before the DOLE Regional Office before an
aggrieved party can file an appeal before the NLRC?
Answer:
No motion for reconsideration is required.
Question:
When to appeal the decision of DOLE Regional Office to the NLRC?
Answer:
The appeal must be made within 5 calendar days with cash or surety bond equivalent to the monetary
award. This pertains to the decision of the Regional Director on small money claims which is not exceeding
P5, 000 under Article 129 of the Labor Code and the complaint does not include a claim of reinstatement.
No Motion for Reconsideration is required.
2. Decision of the Labor Arbiter in cases under its original jurisdiction
Appeal should be filed within 10 calendar days from receipt of the decision any order by the counsel or
representative of the record.
No need to file a Motion of Reconsideration for the decision of the Labor Arbiter, such will be considered an
appeal which would not comply with the requirement of an appeal. The case will be dismissed and the decision
will be final and executory.
The proper remedy from the adverse decision of the Labor Arbiter is an appeal.
Illustrative Case:
Benguet Electric Cooperative v NLRC
This case pertains to the filing of an appeal which was made through a private carrier instead of the
Philippine Post Office.
The court ruled that the respondent boards contention runs counter to the established rule that
transmission to a private carrier is not a recognized mode of filing pleadings. The establish rule is that the date
of delivery of pleadings to a private letter forwarder agency is not to be considered as the date of the filing
thereof in court. In such cases, the date of actual receipt of the court and not the date of delivery to the private
carrier is deemed the date of the filing of the pleading.
Unlike when it is made through the Postal Office, the date which appears to the envelope is the date
to which it is considered received by the court.
The 10 day reglementary period to perfect an appeal is mandatory and jurisdictional in nature. Failure
to file an appeal within the reglementary period renders the assailed decision final and executory and no
longer subject to review.
No motion to extend the period is allowed.
The rule that technical Rules and Procedures are not binding in labor cases cannot justified the filing
beyond the reglementary period to perfect an appeal, because such is Mandatory.
Grounds for Appeal: (Asked in the 2012 Bar Exam in the form of MCQ)
1. Prima facie evidence of abuse of discretion on the part of the LA or Regional Director
2. If the decision, resolution or order is secured through fraud or coercion, including graft and corruption
3. If made purely on questions of law
4. If serious errors on the findings of facts are raised which, if not corrected, would cause grave or irreparable
damage or injury to the appellant
Nature of Appeal (LANLRC):
Memorandum of Appeal, which contains the grounds, arguments in support thereof, as well as the reliefs
prayed for; as compared to a mere Notice of Appeal- just a mere notice that you are appealing, and it will not stop the
running of the period.
Memorandum of Appeal is filed usually in Special Proceeding cases and decisions of the Labor Arbiter.

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Requirements for Perfecting an Appeal


1. Appeal Fee
2. Payment of Appeal Bond
- Involving monetary award; an appeal by the employer may be perfected only upon the posting of a bond,
which shall either be in a form of cash deposit or surety bond equivalent in amount to the monetary award,
EXCLUSIVE of damages and attorneys fees.
Appeal bond is intended to discouraged employers from using the appeal to delay or evade their obligation to
satisfy employees lawful case and also to assure employees that in case they will prevail in the case they will
received the money judgment in their favor.
Appeal Bond is NOT Required in the following:
1.
2.
3.
4.

No monetary award
When it is the employee who appeals the judgment
If it only involves questions of damages and attorneys fees, even granting that it is the employer who appeals
If it does not state the amount of the monetary award

Reduction of Bond

No motion to reduce bond shall be entertained except on meritorious grounds, and only upon the posting of a
bond in a reasonable amount in relation to the monetary award. Must be filed within the reglementary period
to appeal.
What is reasonable amount? At least equivalent to 10% of the monetary award that is subject of the appeal.
The NLRC retains the authority and duty to determine how much is the final amount of the bond.
Real property bond is substantial compliance thereof (UERM Medical Center vs. NLRC)
In one case, the employer submitted a passbook with a deed of assignment to post a bond. The court ruled
that such was not a valid compliance of the required appeal bond. It should be in the form of Cash and Surety
Bond. (Mindanao Times Corp. vs. Confesor)
Issues on Appeal

In cases of perfected appeals, it shall limit itself to reviewing and deciding those specific issues which are
raised on appeal. Those which are not raised on appeal shall be final and executory.
Party who failed to appeal from a decision of the Labor Arbiter to the NLRC can still participate in a separate
appeal timely filed by the adverse party by the motion for reconsideration of the decision of NLRC in an
appeal.
Ex. A v B. Only B who filed an appeal to the NLRC. If the decision of the NLRC becomes adverse to A, who
did not file an appeal. He can still file a motion for reconsideration before the NLRC.
Motion for Reconsideration is NOT a prohibited pleading in the NLRC
Motion for Reconsideration is a prohibited pleading in the Labor Arbiter and to the Regional Director.
In the case of Unilever v Rivera, the court ruled that an appellee who is not an appellant may assign errors
in his brief where his purpose is to maintain the judgment but he cannot seek modification or reversal of the
judgment or claim an affirmative relief unless he has also appealed.

Technical Rules Not Binding

The rules of procedure and evidence prevailing in courts of law and equity shall not be controlling and the
Commission shall use every and all reasonable means to ascertain the facts in each case speedily and
objectively without regard to technicalities of law or procedure, all in the interest of due process.
Illustrative Case:
Anabe vs Asian Construction
This case pertains to an employee who was dismissed on the ground of retrenchment. An employer
may be justified to dismiss an employee on the ground of retrenchment only if they can prove that they have
suffered substantial losses. In the case, the audited financial statement of the employer was submitted only
when the case was already elevated to the NLRC on appeal. Such books and audited financial statement was
not presented to the Labor Arbiter.
Issue:
Can the NLRC consider such evidence, the audited financial statement?
Ruling:

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The NLRC is not precluded from receiving evidence on appeal even though they were not presented
in the LA; technical rules in evidence are not binding in labor cases, however, the delay of the submission
must be clearly explained and adequately proved the employers allegation of the cause of termination. In the
case at bar, Asian Construction did not offer explanation behind the belated submission.
BAR QUESTIONS: (set 2 no. 21)
The affected members of the rank and file elevated a Labor Arbiters decision to the NLRC by a petition for review
after the lapse of 10 day reglementary period for perfecting an appeal. Should the NLRC dismiss the petition
outright or may the NLRC take cognizance thereof?
Answer:
The 10 day reglementary period of the NLRC is mandatory and jurisdictional. If it is filed beyond the period,
the appeal can no longer be entertained and the decision of the Labor Arbiter is already final and executory.
Take Note of the difference between the submission of appeal to the Private Courier and the Post Office.
BAR QUESTIONS: (set 2 no. 22)
A was able to obtain a judgment against his former employer company B for P750,000.00. In executing the
judgment in favor of A, the labor arbiter sought to levy on Bs office equipment. B filed an action for damages and
injunction against the labor arbiter before the regional trial court of the province where Bs offices are located. Is
Bs action tenable? Why?
Answer:
Bs action is not tenable. The regular courts have no jurisdiction to act on labor cases or various incidents
arising therefrom including the execution of decisions, awards and orders.
Alternative Answer:
Bs action before the RTC is tenable, if the said action is limited only to the filing of damage suit against the
Labor Arbiter for the reason that there exist no employer-employee relationship between B and the Labor Arbiter and
there is no labor dispute between them.
BAR QUESTIONS: (set 2 no. 23)
Some disgruntled members of Bantay Labor Union filed with the Regional Office of the DOLE, a written complaint
against their union officers for mismanagement of the union funds. The Regional Director did not rule in the
complainants favor. Not satisfied, the complainants elevated the Regional Directors decision to the NLRC. The
union officers moved to dismiss on the ground of lack of jurisdiction. Are the union officers correct? Why?
Answer:
Yes, the NLRC has no jurisdiction for such is not one of the cases under the appellate jurisdiction of the
NLRC. (This is a case involving inter-intra union dispute)
BAR QUESTIONS: (set 2 no. 24)
Company A within the reglementary period appealed the decision of a labor arbiter directing the reinstatement of
an employee and awarding back wages. However, As cash bond was filed beyond the ten day period. Should the
NLRC entertain the appeal? Why?
Answer:
The NLRC cannot entertain the appeal because the posting of cash bond is necessary to perfect an appeal
and it must be posted within the 10 day reglementary period to perfect an appeal.
BAR QUESTIONS: (set 2 no. 25)
The Labor Arbiter dismissed the complaint for illegal dismissal filed by Genevieve Cruz against Bulag Optical Inc.
(BOI) which denied her prayer for reinstatement but awarded financial assistance in her favor. BOI appealed the
decision of the labor arbiter to the NLRC within the reglementary period. Genevieve filed an opposition to the
appeal. The NLRC affirmed in toto the decision of the labor arbiter. Both the BOI and Genevieve are not satisfied
with the decision of the NLRC.
1) What is the remedy if any of BOI and before what forum? Explain briefly.
2) Can Genevieve Cruz avail herself of the same remedy as that of BOI? Why?
Discussion:
After filing the case to the NLRC, the next remedy for the parties not satisfied with the judgment is a Special
Civil Action of certiorari before the Court of Appeals but a motion for reconsideration is necessary. A motion for
reconsideration must be filed first to the NLRC. Before Rule 65 can be availed, the party must first file a motion for
reconsideration of the decision of the NLRC.

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(Again: A motion for reconsideration is not available in the Labor Arbiters decision)
Answer:
BOI can file a motion for reconsideration to the NLRC within the 10 day reglementary period from receipt of
the decision. If the NLRC deny the motion for reconsideration, the BOI can file a petition for certiorari with the Court of
Appeals under Rule 65 of the Rules of Court.
Genevieve can also avail the same remedy exercised by the BOI.
BAR QUESTIONS: (set 2 no. 26)
The RTC issued an injunction prohibiting the picketing by the employee of the company who were either
dismissed or resigned, it ruled that no labor dispute existed between the parties since at the time of the strike, the
employees had not even filed a complaint for unfair labor practice and mere filing of a notice of strike does not
mean that there exist a labor dispute and there was no CBA between the parties
Answer:
A labor dispute can exist although acts of ULP have not yet been established. The concerted actions taken by
the strikers, no matters how illegal, are acts arising from a labor dispute.
3. Claim for Reinstatement
(a) Reinstatement order issued by the Labor Arbiter it is allowed when the decision of the LA states that the
dismissal of the employee is illegal and without authority and just cause. They are immediately executory and
self- executory, thus, the aggrieved party need not file a motion for writ of execution.
(b) Reinstatement order issued by the NLRC- immediately executory, but not self-executory, thus, the aggrieved
party needs to file a motion for the issuance of the writ of execution.
Kinds of Reinstatement:
1. Physical- the employee is admitted back to work under the same terms and conditions prevailing prior
to the illegal dismissal or separation or at the option of the employer merely reinstated in the payroll.
2. Payroll- is only up to the option of the employer. The employee is paid, but does not need to report to
work.
Example:
Where there is already strained relationship.
An employee was dismissed on the ground of abuse of trust of confidence.
Cashier sa Metro nangawat, however the employer failed to prove the allegation to
the Labor Arbiter which ordered reinstatement.
*the employer has the option to choose whether physical or payroll reinstatement
Examples: ( meaning: appealed to)
a. LA(employer is obliged to pay the salary within this period because reinstatement here is self-executory)
NLRC(reversed)CA
b. LA (dismissal is legal) NLRC (reversed; became illegal dismissal) (from the NLRC to the CA, the
employer is not obliged to pay the employees salary if the latter did not file for the issuance of the writ of
execution because in this stage, the reinstatement is not self-executory, it is only immediately executory)
CA (from CA to SC: Rule 45, within 15 days: only questions of law may be raised) SC
Note:
-

NLRCs decision becomes final after 10 calendar days from the receipt of the decision, thus, after it becomes
final, you can already file a motion for writ of execution to implement the decision of the NLRC

If you appeal from the NLRC to the CA: Special Civil Action, Rule 65 Petition for Review; no appeal bond
needed for the filing of this petition; however, if you wish to stop the implementation of the execution of the
NLRCs judgment, the proper remedy is to file a TRO before the CA, and not through Rule 65
On another footing, if you wish to appeal the decision of the Voluntary Arbitrator to the CA, the proper remedy
is Rule 43

Case: Elizabeth Gagui vs Simeon Dejero GR No. 196036, Oct. 13, 2013: the fresh period rule shall
also apply to Rules 40 (decision of first level courts), 41(neypes case), 42 (petition for review), 43
(decision of quasi-judicial bodies) and 45

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In Rule 45 only questions of law are entertained.

If the LA and NLRC has the same findings of facts, the SC will no longer touch on the factual issues, only
questions of law will be resolved.

If there is refusal to comply with the writ of execution, the proper remedy is to cite the employer in contempt
despite several writ of execution issued by the Labor Arbiter. If there is no compliance in the writ of execution,
the remedy is not to grant additional back wages, continuing back wages up to reinstatement. The remedy is
to file a motion to cite the employer in contempt. The back wages includes only the finality of the decision,
once the decision becomes final and executory, the party may now file for the issuance a writ of execution.
(Christian Literature Crusade vs. NLRC)

NLRC 2011 Rules of Procedure, Rule VI, Sec.4 (d): Subject to the provisions of Article 218 of the Labor
Code, once the appeal is perfected in accordance with these Rules, the Commission shall limit itself
to reviewing and deciding only the specific issues that were elevated on appeal.

The NLRC will no longer touch on issues not raised on appeal, their power is only limited on reviewing and
deciding specific issues that where elevated on appeal. (Asked in the 2012 Bar Exam)

Under NLRC 2011 Rule of Procedure, The Commission can entertain questions or the intervention of the third
party claims in the writ of execution.

BAR QUESTIONS:
Discuss briefly the instances where non-compliance by the employer with the Reinstatement Order of an illegally
dismissed employee is allowed.
Answer:
Reinstatement Order pertains only to physical reinstatement. There is no exemption for the employer, not to
comply with the reinstatement order, such is mandatory. Physical reinstatement need not be complied with and in lieu
thereof, payroll reinstatement may be taken when there is already a strained relationship, bona fide closure of
business, valid abolition of position, health and/or aged reason, when the separation pay may be given or when payroll
reinstatement may be allowed.
BAR QUESTIONS: (set 2 no. 27)
May a decision of the Labor Arbiter which becomes final and executory be novated through a compromise
agreement of the parties?
Answer:
Yes, compromise agreement is encouraged and authorized by law. It can even be made even if the judgment
becomes final and executory.
BAR QUESTIONS: (set 2 no. 28)
Procedurally, how do you stay a decision, award or order of the labor arbiter?
Answer:
By filing an appeal within 10 calendar days from the receipt of the decision. But you cannot stay the
reinstatement decision of the Labor Arbiter. TRO must be filed in order for the decision or the implementation of the LA
can be stopped.
BAR QUESTIONS: (set 2 no. 29)
Alexander, a Security Guard of Jaguar Security Agency could not be given any assignment because no client
would accept him. He had a face only a mother could love. After six (6) months of being on floating status,
Alexander sued JSA for constructive dismissal. The labor arbiter upheld Alexanders claim of constructive
dismissal and ordered JSA to immediately reinstate Alexander. JSA appealed the decision to the NLRC. Alexander
sought immediate enforcement of the reinstatement order while the appeal was pending. JSA hires you as lawyer,
and seeks your advice on the following:
(a) Because JSA has no client who would accept Alexander, can it still be compelled to reinstate him pending
appeal even if it has posted an appeal bond?
(b) Can the order of reinstatement be immediately enforced in the absence of a motion for the issuance of a
writ of execution?
(c) If the order of reinstatement is being enforced, what should JSA do in order to prevent reinstatement?
Answer:

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Yes, because reinstatement order of the Labor Arbiter is not only immediately executory but also selfexecutory. There is no way for a reinstatement order to be prevented. Only physical reinstatement can be stopped.
Since there is no company or client that will accept Alexander, the company may opt for payroll reinstatement.
BAR QUESTIONS: (set 2 no. 30)
Company A and Union B could not resolve their negotiations for a new CBA. After conciliation proceedings before
the NCMB proved futile, B went on strike. Violence during the strike prompted A to file charges against strikermembers of B for their illegal acts. The secretary of labor assumed jurisdiction, referred the strike to the NLRC and
issued a return-to-work order. The NLRC directed the parties to submit their respective position papers.
Subsequently, the NLRC issued an arbitral award resolving the disputed provisions of the CBA and ordered the
dismissal of certain strikers for having knowingly committed illegal acts during the strike. The dismissed
employees elevated their dismissal to the Court of Appeals claiming that they were deprived of their right to due
process and that the affidavits submitted by A were self-serving and of no probative value. Should the appeal
prosper? State the reason/s for your answer clearly.
Answer:
The dismissed employees are not deprived of their right to due process, on the reason that technical
procedure are not binding before the NLRC. It is not necessary that there should be a trial type hearing. Decisions can
be rendered either by the Labor Arbiter or by the NLRC through affidavits submitted by the parties.

Administrative and Quasi-judicial bodies like the NLRC or any LA:


Not bound by the technical rules of procedures in the adjudication of cases. May decide on the basis
of papers or another documents submitted but evidence presented must be admissible. What is
important is that there was an opportunity to be heard, what the law prohibits is the absolute lack of
opportunity to be heard.
There is no denial of due process where the employee was duly represented by the counsel and given
sufficient opportunity to be heard and present his evidence nor to the employer of his failure to be
heard due to various postponements or his repeated failure to appear during hearings. A formal or trial
type hearing is not at all times and all circumstances essential to due process. The requirement of
such is satisfied where parties are afforded fair and reasonable opportunity to explain their side of the
controversy at hand.
Take Note: Although technical rules of procedure are not controlling before the NLRC or the Labor
arbiter, there are certain conditions that must be strictly followed:
a. Valid service of summons
b. Period of appeal is complied with which is mandatory
c. Payment of the appeal fee
d. Posting of the appeal bond (again, it must involve a monetary award and it must be the
employer who appeals the decision!)
Illustrative Case:
RAMOS Case
Walter Ramos filed a complaint for illegal dismissal against his former employer, having no lawyer at
that time of the filing of the complaint, he filled up and signed a standard form prepared by the NLRC Regional
Arbitration Branch. Under the item relief ask, he wrote separation pay and payment of damages. Finding him
to be illegally dismissed, the LA ruled reinstatement or separation pay in lieu thereof payment of back wages
and damages.
Can the LA order reinstatement and payment of back wages even if this were not

prayed for in

the complaint?
Yes, The LA can order reinstatement and payment of back wages, the failure of Ramos to specifically
pray for reinstatement and payment of back wages in the pro forma complaint is a procedural lapse which
cannot put on to his known right under a substantive law. Technicalities have no room in labor cases where
the rules of court are applicable only in order to effectuate the objectives the Labor Code and not to defeat
them.
Compromise Agreements
It is required that the LA should persuade the parties to settle amicably and to equally ensure that the
compromised entered into by them
Must be fair

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Must be freely and voluntary entered into and the terms and condition have been fully understood by
them.
Conciliation and mediation are mandatory
Money claims due to the laborers cannot be the subject of compromise effected by the union officers
or counsel without specific and individual consent of each laborer concerned.
Quitclaims
General Rule: Even if theres a quitclaim, this will not bar the employee from demanding benefits to
which they are legally entitled or from contesting the legality of their dismissal. His or her acceptance
of the benefits will not amount to estoppel.
Exception: If the person signing the quitclaim has done so voluntarily with the full understanding
thereof, and if the consideration of the quitclaim is credible and reasonable, the transaction must be
recognized as a valid and binding undertaking.
Illustrative Case:
UST vs. Samahang Manggagawa sa UST
Jag and Haggar Jeans Inc vs. NLRC
BAR QUESTIONS: (set 2 no. 31)
May the NLRC or the Courts take jurisdictional cognizance over compromise agreements/settlements involving
labor matters?
Answer:
In case of non-compliance of the compromise agreement, the enforcement of Compromise Agreement is with
the jurisdiction of LA.
BAR QUESTIONS: (set 2 no. 32)
How sacrosanct are statements/data made at conciliation proceedings in the department of labor and
employment. What is the philosophy behind your answer?
Answer:
Statements made in Conciliation Proceedings are privileged communications that can neither be used as
evidence nor can conciliators testify in any matters taken up in the proceedings. The philosophy is to ascertain the
truth about the controversy which the parties may be afraid to divulge if the statements can be used against them.

BAR QUESTIONS: (set 2 no. 33)


True or False: Deeds of release, waivers and quitclaims are always valid and binding
Answer:
False- They are not always valid and binding. Quitclaim will not bar the employee from demanding benefits to
which they are legally entitled or from contesting the legality of their dismissal.

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Art. 228. Appearances and Fees. (MEMORIZE!)


a. Non-lawyers may appear before the Commission or any Labor Arbiter only:
1) If they represent themselves; or
2) If they represent their organization or members thereof.
b. No attorneys fees, negotiation fees or similar charges of any kind arising from any collective bargaining
agreement shall be imposed on any individual member of the contracting union: Provided, However, that
attorneys fees may be charged against union funds in an amount to be agreed upon by the parties. Any
contract, agreement or arrangement of any sort to the contrary shall be null and void.
Notes:
Under the NLRC Rules of Procedure 2011 (Rule III, Sec. 6), a non-lawyer may appear before the Commission or
Labor Arbiter only if:
1) He represents himself as party to the case;
2) He represents a legitimate labor organization, which is a party to the case: Provided that he represents: (i) a
certification from the BLR or Regional Office of DOLE attesting that the organization he represents is duly
registered and listed in the roster of legitimate labor organizations; (ii) a verified certification issued by the
secretary and attested to by the president of the said organization in the said case; and (iii) a copy of the
resolution of the board of directors of the said organization granting him such authority;
3) He represents a member or members of a legitimate labor organization that is existing within the employers
establishment, who are parties to the case. Provided that he presents: (i) a verified certification attesting that
he is authorized by such member or members to represent them in the case; and (ii) a verified certification
issued by the secretary and attested to by the president of the said organization stating that the person or
persons he is representing are members of their organization which is existing in the employers
establishment;
4) He is a duly-accredited member of any legal aid office recognized by the Department of Justice or Integrated
Bar of the Phils. Provided, that he (i) presents proof of his accreditation; and (ii) represents a party to the case;
5) He is the owner or president of a corporation or establishment which is a party to the case: Provided, that he
presents: (i) a verified certification attesting that he is authorized to represent said corporation or
establishment; and (ii) a copy of the resolution of the board of directors of said corporation, or other similar
resolution or instrument issued by said establishment, granting him such authority.
The non-lawyer must have an SPA so that during conciliation and mediation, he will be authorized to make a
proposal or to accept proposal or compromise.
Thus: Attorneys fees in cases involving unlawful withholding of wages or those arising from collective
bargaining negotiations should be charged against union funds in the amount to be agreed upon by the parties, and
cannot be checked-off without an individual written authorization duly signed by the employee.
The same cannot be made through a forced contribution from the workers own funds.
BAR QUESTIONS: (set 2 no. 34)
May non-lawyers appear before the NLRC or labor arbiter? May they charge attorneys fee for such appearance
provided it is charged against union funds and in amount freely agreed upon by the parties? Discuss fully.
Answer:
Yes. Non-lawyers may appear before the Commission or any Labor Arbiter provided that:
(a) They represent themselves; or
(b) They represent their organization or members thereof.
However, they cannot charge Attorneys fees because the same presupposes the existence of an Atty-Client
Relationship.
BAR QUESTIONS: (set 2 no. 35)
The unions by laws provided for burial assistance to the family of a member who dies. When Carlos, a member,
dies, the union denied his wifes claim for burial assistance, compelling her to hire a lawyer to pursue the claim.
Assuming the wife wins the case; may she also claim attorneys fees?
a) No, since the legal services rendered has no connection to CBA negotiation;
b) Yes, since the union should have provided her the assistance of a lawyer
c) No, since burial assistance is not the equivalent of wages
d) Yes, since award of attorneys fee is not limited to cases of withholding of wages
Who can Issue A Writ of Execution

47

NOTES IN LABOR RELATIONS


1.
2.
3.
4.
5.
6.
7.

BATCH SINE QUA NON

Secretary of Labor and Employment


DOLE Regional Director
NLRC
LA
Med-Arbiter
Voluntary Arbitrator
Panel of Arbitrators
The only officer that cannot issue a writ of execution are only those authorized hearing officer under Article

129
-

Writ may be issued motu proprio


Rule 39 in the Rules of Court
The writ must be executed within 5 years from the time the decision becomes final and executory. The party
must file a motion for issuance for writ of execution, thus you should file for the execution of the writ within this
period;
Beyond 5 years but within 10 years, the proper remedy is to file a petition for the revival of judgment. Pay
again filing fees.
The NLRC has the authority to look of the correctness of the decision of the labor arbiter.

BAR QUESTIONS: (set 2 no. 36)

A. How do you execute a labor judgment which, on appeal, had become final and executory?
B. Cite two instances when an order of execution may be appealed.
Answer:
A. By filing a motion for the issuance of writ of execution.
B. Two instances where an order of execution may be appealed:
1. When execution becomes impossible or unjust, it may be modified or altered in appeal to harmonize the
same with justice and the facts.
2. Supervening Events may warrant modification in the execution of judgment. As with reinstatement is no
longer possible because position was abolished or when the writ is found to be defective or exceeds the
awards or those illegally issued or when there is wrongful computation of the award.
Contempt Power of the Sec. of Labor
The Sec. of labor can cite any person in contempt who does not comply the following:
1. Writ of execution
2. Return Court Order
3. An order issued on its inquisitorial power under Article 37, 128 and 274 of the Labor Code

48

NOTES IN LABOR RELATIONS

BATCH SINE QUA NON

August 23, 2014

Labor Relations
Executive order No. 126 transfers the conciliation, mediation and voluntary arbitration functions
of BLR to the National Conciliation and Mediation Board.
Article 232 pertains to inter-union and intra-union disputes.
(Note: Instead of reading the provisions of Art. 232, please try to read Rule XI of D. O. 40-03)
Inter-union and Intra-union Dispute

Med-arbiter

has jurisdiction over inter-union and intra-union disputes (sec. 7 & 16 of Rule XI of D.O. 4003)
refers to an officer in the Regional Office or in the Bureau authorized to hear and decide
representation cases; inter/intraunion disputes and other related labor relations disputes
except cancellation of union registration cases. (Rule 1, Sec. 1 (ii) of D. O. 40-03)

(Note: This is a different quasi-judicial body who exercises jurisdiction over inter/intra-union disputes. This is different
from the other quasi- judicial bodies such as the Labor Arbiter and the National Labor Relations Commission.)
Cases under the jurisdiction of the Med- arbiter;
1. Petition for Certification Election (Rule VIII, Sec. 2 of D.O. 40-03)
Medarbiters decision in a petition for certification election is appealable to the Secretary of
Labor within ten (10) calendar days from the receipt of the decision. (Rule VIII, Sec. 18 of
D.O. 40-03)
2. Inter/IntraUnion Disputes
Inter-union Dispute - refers to any conflict between and among legitimate labor unions
involving representation questions for purposes of collective bargaining or to any other conflict
or dispute between legitimate labor unions.
Intra-union Dispute - refers to any conflict between and among union members, including
grievances arising from any violation of the rights and conditions of membership, violation of
or disagreement over any provision of the unions constitution and by-laws, or disputes arising
from chartering or affiliation of union.
(Note: this is the traditional definition of inter/intra-union dispute)

Under Sec. I, Rule XI of D.O. 40-03; Inter-union dispute is no longer limited to dispute between
legitimate labor organizations. D.O. 40-03 provides an expanded definition of inter/intra-union dispute
as it gives the long list of inter/intra-union disputes which includes:
a. registration and cancellation of union registration,
b. registration and de-registration of CBA,
c. audit of union funds,
d. violation of union members rights; and
e. other disputes between unions or within a union

Note: The following are considered as inter/intraunion disputes;


1. petition for registration and petition for cancellation of union registration or workers association
2. petition for registration and petition for cancellation of registration of CBA
3. petition for interpleader
Gen. Rule on Jurisdiction:
Med. Arbiter has the jurisdiction over inter/intra-union disputes
Exception:
Med-Arbiter has no jurisdiction on the following:
a. registration and cancellation of registration of labor organization
b. registration and de-registration of the CBA
Under the jurisdiction of the Regional Director
Who may file a complaint involving inter/intra-union disputes?

49

NOTES IN LABOR RELATIONS

BATCH SINE QUA NON

Any legitimate labor organization or members thereof may file a complaint involving issues enumerated in
Section 1 of Rule XI, D. O. 40-03
Any party in interest may file a complaint involving disputes enumerated in Section 2 of Rule XI, D.O. 40-03
(Note: Sec. 2 was amended and integrated as the present paragraph B of Section I)
If the issue involves the entire membership of the union, the complaint shall be supported by at least thirty
percent (30%) of the membership of the union. It shall also show exhaustion of administrative remedies as
provided for in the by-laws.
Take Note: In Inter/Intra-union disputes, if it involves:
a. Federation
Jurisdiction is with the BLR; appeal may be made to the Sec. of Labor within 10 days.
b. Independent union or local chapter
Jurisdiction is with the med-arbiter; appeal may be made to the BLR within 10 days. After with the
BLR, a special civil action may be taken under Rule 65 to the CA, then to the SC.
Note further: The appellate jurisdiction of the Sec. of Labor is limited only to the review of decisions
of the BLR
in the exercise of its original jurisdiction. Decisions of the BLR exercising its
appellate jurisdiction cannot be
reviewed by the Secretary of Labor.
Procedural Aspects with respect to inter/intraunion disputes
1. Raffle of Cases
Upon the filing of the complaint or petition, the Regional Director or any of his/her authorized
representatives in the Regional Office and the Docket Section of the Bureau shall allow the party filing the
complaint or petition to determine the Med-arbiter or Hearing Officer assigned to the case by means of a raffle.
Where there is only one Med-Arbiter or Hearing Officer in the region, the raffle shall be dispensed with and the
complaint or petition shall be assigned to him/her. (sec. 6, rule XI, D. O. 40-03)
2. Notice of Preliminary Conference
Immediately after the raffle of the case or receipt of the complaint or petition the same shall be
transmitted to the Med-arbiter or Hearing Officer, as the case may be, who shall in the same instance prepare
the notice for preliminary conference and cause the service thereof upon the party filing the petition. The
preliminary conference shall be scheduled within ten (10) days from receipt of the complaint or petition.
Within three (3) days from receipt of the complaint or petition, the Med-arbiter or hearing Officer, as
the case may be, shall cause the service of summons upon the respondents named therein, directing him/her
to file his/her answer/comment on the complaint or petition on or before the scheduled preliminary conference
and to appear before the med-arbiter or hearing officer on the scheduled preliminary conference. (sec. 7, rule
XI, D.O. 40-03)
3. Conduct of preliminary conference
The Med-arbiter or hearing officer, as the case may be, shall conduct a preliminary conference and
hearing within ten (10) days from receipt of the complaint or petition. He/she shall exert every effort to effect
an amicable settlement of the dispute.
Where the parties agree to settle amicably, their agreements shall be specified in the minutes of the
conference and a decision based on compromise shall be issued by the Med-arbiter or the Regional Director,
as the case may be, within five (5) days from the date of the mandatory conference.
Where no amicable settlement is reached, the Med-arbiter or hearing officer as the case may be, shall
proceed with the stipulation of facts, limitation or definition of the issues, clarificatory questioning and
submission of laws and jurisprudence relied upon in support of each others claims and defenses. (Sec. 8,
Rule XI, D. O. 40-03)
4. Conduct of Hearing
The Med-arbiter or hearing officer, as the case may be, shall determine whether to call further
hearing(s) on the complaint or petition.
Where the Med-Arbiter or hearing officer, as the case may be, decides to conduct further hearing(s),
he/she shall require the parties to submit the affidavits of their witnesses and such documentary evidence
material to prove each others claims and defenses. The hearing(s) shall be limited to clarificatory questions
by the Med-Arbiter or hearing officer and must be completed within twenty-five (25) days from the date of
preliminary conference.
The complaint or petition shall be considered submitted for decision after the date of the last hearing
or upon expiration of twenty-five (25) days from date of preliminary conference, whichever comes first. (Sec.
9)
5. Affirmation of testimonial evidence
Any affidavit submitted by a party to prove his/her claims or defenses shall be re-affirmed by the
presentation of the affiant before the Med-arbiter or hearing officer, as the case may be. Any affidavit
submitted without the re-affirmation of the affiant during a scheduled hearing shall not be admitted in
evidence, except when the party against whom the affidavit is being offered admits all allegations therein and
waives the examination of the affiant. (Sec.10)
6. Filing of pleadings

50

NOTES IN LABOR RELATIONS

7.
8.

9.

10.

BATCH SINE QUA NON

The parties may file his/her pleadings, including their respective position papers, within the twenty-five
(25) day period prescribed for the conduct of hearing(s). No other pleading shall be considered or entertained
after the case is considered submitted for decision. (Sec.11)
Hearing and resolution of the complaint
The Bureau shall observe the same process and have the same period within which to hear and
resolve the complaints or petitions filed before it. (Sec.12)
Decision
The Bureau and the Med-arbiter or Regional Director, as the case may be, shall have twenty (20)
days from the date of the last hearing within which to decide the complaint or petition. The decision shall state
the facts, findings, conclusion and reliefs granted. (Sec 13)
Appeal
The decision of the Med-arbiter and Regional Director may be appealed to the Bureau by any of the
parties within ten (10) days from receipt thereof, copy furnished the opposing party. The decision of the
Bureau Director in the exercise of his/her original jurisdiction may be appealed to the Office of the Secretary
by any party within the same period, copy furnished the opposing party.
The appeal shall be verified under oath and shall consist of a memorandum of appeal specifically
stating the grounds relief upon by the appellant, with supporting arguments and evidence. (Sec. 15)
memorandum of appeal
Finality of decisions
Where no appeal is filed within the ten-day period, the Bureau and Regional Director or Med-arbiter,
as the case may be, shall enter the finality of the decision in the records of the case and cause the immediate
implementation thereof.(Sec. 17)
The decision of the Bureau or the Office of the Secretary shall become final and executory after ten
(10) days from receipt thereof by the parties, unless a motion for its reconsideration is filed by any party
therein within the same period. Only one (1) motion for reconsideration of the decision of the Bureau or the
Office of the Secretary in the exercise of their appellate jurisdiction shall be allowed. (Sec. 20)

Effects of the filing/pendency of inter/intra-union and other related labor relations disputes:
The filing or pendency of any inter/intraunion dispute and other related labor relations dispute is not
a prejudicial question to any petition for certification election and shall not be a ground for the
dismissal of a petition for certification election or suspension of proceedings for certification election.
Take note of the assigned case:
a. Kapisanan ng Manggagawang Pinagyakap [KMP] vs. Trajano [ 134 SCRA 236 [1985] ]
The BLR (med-arbiter) has no authority to order a referendum among union members to decide whether to
expel or suspend union officers. If the BLR (Med-arbiter) is confronted with an intra-union dispute, he must
decide the issue and should not refer the issue back to the union members and have them decide.
Note: Katarungang Pambarangay Law is not applicable to labor disputes.
BAR QUESTIONS: (set 3 no. 1)
The national council of X Union, the exclusive bargaining representative of all daily paid workers of Z Corp., called
a general meeting and passed a resolution which provides that each union member was to be assessed P1,000 to
be deducted from the lump sum of P10,000.00 which each employee was to receive under the CBA. Sergio, a
Union member, protested and refused to sign the authorization slip for the deduction. X union then passed a
resolution expelling Sergio from the union. Sergio filed a complaint before the labor arbiter for illegal deduction and
expulsion from the union. Will the complaint prosper? Explain.
Answer:
No. The nature of the action filed is an intra-union dispute for it involves a conflict between union members.
Thus, it is the med-arbiter who has jurisdiction over the issue and not the labor arbiter.
BAR QUESTIONS: (set 3 no. 2)
Which of the following is cognizable by the Bureau of Labor Relations Med-arbiters?
a) Unfair labor practice for violation of the CBA filed by the Workers Union of Company X against Company
X
b) Claim for back wages filed by overseas contract worker Xena against her Saudi Arabian employer
c) Contest for the position of MG Union President brought by Ka Joe, the losing candidate in the
recent elections
d) G contesting his removal as Chief Executive Officer of Company Z
Note: If you are asked as to who has the jurisdiction on inter/intra union disputes, please
qualify because not
all inter/intraunion disputes are cognizable by the med-arbiter. There
are those which are cognizable by the
Regional Director.
Article 233 Compromise Agreements

51

NOTES IN LABOR RELATIONS

BATCH SINE QUA NON

Any compromise settlement, including those involving labor standard laws, voluntary agreed upon by
the parties with the assistance of the Bureau or the regional office of the Department of Labor, shall be final
and binding upon the parties. The National Labor Relations Commission or ay court shall not assume
jurisdiction over issues involved therein except in case of noncompliance thereof or if there is prima facie
evidence that the settlement was obtained through fraud, misrepresentation, or coercion.
Notes:
This article recognizes compromise settlement as a mode of settling labor or industrial disputes.
Requirements:
1) it must be reduced into writing
2) it must be voluntarily entered into
3) it must represent a reasonable settlement of the claims
4) It must be signed in the presence of the Regional Director or his duly authorized representative.
Effect:
Such agreement is final and binding upon the parties even if not judicially approved except non- compliance
of the compromise agreement or if there is prima facie evidence that the settlement was obtained through
fraud, misrepresentation, or coercion.

Compromise may not later be disowned or set aside merely because of a change of mind. Neither can
compromise be set aside on the ground that the employee was constrained to sign the same because of extreme
necessity. Dire necessity is not an acceptable ground for annulling a compromise especially when there is no
showing that the employee had been forced to enter into such compromise.

Compromise entered thru a lawyer or representative is conclusive and binding only when;
1) the client has express his consent on the compromise; or
2) the lawyer or representative is equipped with a special power of attorney,

Otherwise it would not bind the party concerned unless such party signs or avails the benefit of the
compromise agreement.

Not all waivers and quitclaims are invalid against public policy. If the agreement was voluntarily entered into
and represents a reasonable settlement, it is binding on the parties and may not later be disowned simply
because of a change of mind. It is only where there is clear proof that the waiver was wangled from an
unsuspecting or gullible person, or the terms of settlement are unquestionable on its face, that the law will step in
to annul the questionable transaction. But where it is shown that the person making the waiver did so voluntarily,
with full understanding of what he was doing and the consideration for quitclaim is credible and reasonable, the
transaction must be recognized as a valid and binding undertaking.

Waiver of Reinstatement
The waiver of reinstatement, like waivers of money claims, must be regarded as a personal right which must
be exercised personally by the worker themselves. For it to be legally effective, the individual consent or ratification of
the worker or employees involved must be shown. Neither the officers nor the majority of the union had any authority
to waive the accrued rights pertaining to the dissenting minority members. The members of the union need the
protective shield of this doctrine not only vis--vis their employer but also, at times, vis--vis the management of their
own union and at other times even against their own imprudence or impecuniousness.
When to effect compromise?
The law does not limit compromise to cases about to be filed or cases already pending in courts. A
compromise may be effected even after final judgment.
Article 234 Issuance of Subpoenas
The Bureau shall have the power to require the appearance of any person or the production of any
paper, document or matter relevant to a labor dispute under its jurisdiction either at the request of any
interested party or its own initiative.
Notes:
The power granted to the Bureau of Labor Relations to issue subpoenas extends only to matters relevant to
labor disputes under its jurisdiction.
Article 236 Registry of Unions and File of Collective Agreements

52

NOTES IN LABOR RELATIONS

BATCH SINE QUA NON

The Bureau shall keep a registry of legitimate labor organizations. The Bureau shall also maintain a
file of all collective bargaining agreements and other related agreements and records of settlement of labor
disputes, and copies of orders, and decisions of voluntary arbitrators. The file shall be open and accessible to
interested parties under conditions prescribed by the Secretary of Labor and Employment, provided that no
specific information submitted in confidence shall be disclosed unless authorized by the Secretary, or when
it is at issue in any judicial litigation or when public interest or national security so requires.
Within thirty (30) days from the execution of a Collective Bargaining Agreement, the parties shall
submit copies of the same directly to the Bureau or the Regional Offices of the Department of Labor and
Employment for registration accompanied with verified proofs of its posting in two conspicuous places in the
place of work and ratification by the majority of all the workers in the bargaining unit. The Bureau or regional
offices shall act upon the application for registration of such Collective Bargaining Agreement within five (5)
calendar days from receipt thereof. The regional Offices shall furnish the Bureau with a copy of the Collective
Bargaining Agreement within five (5) days from its submission.
The Bureau or Regional Office shall assess the employer for every Collective Bargaining Agreement a
registration fee of not less than one thousand pesos (P1,000) or in any other amount as may be deemed
appropriate and necessary by the Secretary of Labor and Employment for the effective and efficient
administration of the Voluntary arbitration program. Any amount collected under this provision shall accrue to
the Special Voluntary Arbitration Fund.
The Bureau shall also maintain a file, and shall undertake or assist in the publication, of all final
decisions, orders and awards of the Secretary of Labor and Employment, Regional Directors and the
Commission.
Notes:
This article pertains to the registration of the collective bargaining agreement.
Take Note: Registration of a CBA is an inter/intraunion dispute which is under the jurisdiction of Regional Director.
Question:
Is registration of the CBA a requisite for its validity?
Answer:
NO. The registration of CBA is not a requisite for its validity because once it is entered into and signed by the
parties; it becomes effective as between them. The registration of the CBA is necessary only for the contract-bar rule
to apply.
Registration of CBA

Within thirty (30) days from the execution of the collective bargaining agreement, the parties must submit duly
signed copies of the same to the Regional office of DOLE which issued the union certificate of registration or
certificate of chartered local or to the BLR if it involves multi-employer CBA with following:
a. Verified proofs of its posting in two conspicuous places in the place of work, at least 5 days before
its ratification; and
b. Ratification by the majority of all the workers in the bargaining unit.
Note: If the registration is denied, appeal may be done to BLR within 10 calendar days. In case of multi-employer
bargaining, appeal may be done to Secretary of Labor within 10 calendar days.
Article 237 Prohibition on Certification Election
The Bureau shall not entertain any petition for certification election or any other action which may
disturb the administration of duly registered existing collective bargaining agreements affecting the parties
except under Articles 263, 264 and 267 of this Code.
Notes:
ContractBar Rule
As a rule, registration of CBA is necessary only for the contract bar rule to apply.
Contract-Bar Rule states that while a valid and registered CBA is subsisting, the Bureau is not allowed to
hold an election contesting the majority status of the incumbent union. The existence of the CBA does not
allow, that is, it bars the holding of the inter-union electoral contest. The election is legally allowed only during
the freedom period which refers to the last 60 days of the fifth year of the CBA.
Two aspects of CBA:
economic - renewable every 3 years
representation renewable every 5 years
If the CBA is not registered, the status of the union as the certified exclusive bargaining representative may be
contested at any time because the contract bar rule will not apply.

53

NOTES IN LABOR RELATIONS

BATCH SINE QUA NON

Illustration:
Collective Bargaining Negotiations
Employer

Independent union/federation

Ways of choosing the union who will represent the bargaining Unit;
a) voluntary recognition only one ( 1) union exist
b) certification election if two (2) union exist
- ang mudaog sa certification election will be considered as the certified
exclusive bargaining representative of the bargaining unit
c) consent election
Contract-Bar Rule
existence of a duly registered CBA
effect: the majority status of the incumbent union cannot be contested within 5 years except during the
freedom period 60 days prior to the expiration of the CBA
Exceptions to the Contract- Bar rule: (take note of the assigned cases)
The Contract-Bar Rule will not apply in the following cases:
Those CBA entered into with a labor organization which is not certified as the sole and exclusive bargaining
representative but merely accorded voluntary recognition by the management despite the existence of another
labor organization seeking recognition;
Those CBA which are not only duly registered with the BLR or the appropriate regional office;
Those CBA which are defective for being submitted not in accordance with the law
(Associated Labor Union vs. Calleja)
Those CBA which are incomplete; specifically those which do not provide for economic benefits to employees
(Buklod ng Saulog Transit vs. Casalla)
Those CBA hastily entered into prior to the 60 day freedom period. The reason for this is that there is a desire
to frustrate the will of the employees in selecting the collective bargaining representative.
(Associated Trade Union vs. Noriel)
Those CBA which can no longer foster industrial peace and stability because the identity of the representative
is in doubt. Under this situation, a certification election should be conducted to clear any doubts on employees
representation.
(Firestone vs. Estrella)
Article 238 Privileged Communication
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 shall
not testify in any court or body regarding any matters taken up at conciliation proceedings conducted by
them.
Notes:
The purpose of this provision is to encourage settlement of disputes through compromise agreements.
BAR QUESTIONS: (set 3 no. 3)
A collective bargaining agreement was signed between the Ang Sarap Kainan Company and the Ang Sarap
Kainan Workers Union. Should the Collective Bargaining Agreement be registered with the Bureau of Labor
Relations? If so, why?
Answer:
Yes, in order for the contract-bar rule to apply but not for its effectivity

54

NOTES IN LABOR RELATIONS

BATCH SINE QUA NON


Title IV
LABOR ORGANIZATION

In collective bargaining, it is required that the labor organization is legitimate, that is, the same must be
registered and certified as the exclusive bargaining representative.
If a labor organization is not registered, it does not mean that it is illegitimate. The same is still a lawful
organization but it has also legal personality to demand collective bargaining with the employer. It cannot petition for a
certification election and cannot hold a legal strike.
Question:
Is registration a limitation of the right to assembly or association?
Answer:
No. Registration is not a limitation of the right to assembly or association which may be exercised with or
without said registration. The requirement of registration is merely a condition sine qua non for the acquisition of legal
personality by the labor organizations, associations, or unions and the possession of the rights and privileges granted
by law to legitimate labor organization. Said registration is necessary because the constitution does not guarantee
such rights and privileges much less said personality which is mere statutory creations. The same requirement is
necessary to protect both labor and the public against abuses, fraud or impostor who pose as organizers, although not
truly accredited agents of the union they purport to represent. Such requirement is a valid exercise of the police power
because the activities in which labor organizations, associations and unions of workers are engaged affect public
interest which should be protected. (PAFLU vs. Sec. of Labor)
Effect of registration under the Corporation Law:
If a labor organization was organized under the Corporation Law as a non-stock corporation and was issued a
certificate of incorporation by the SEC, such incorporation has only the effect of giving the labor organization a juridical
personality before regular courts of justice. Being registered with Sec is not equivalent to registration under the Labor
Code, because it does not grant the rights and privileges of a legitimate labor organization; i.e. the personality to
bargain collectively with the employer.
Labor Organization vs. Workers Association:
Labor organization refers to any union or association of employees in the private sector which exists in
whole or in part for the purpose of collective bargaining, mutual aid, interest, cooperation, protection, or other lawful
purposes.
Workers Association refers to an association of workers organized for the mutual aid and protection of its
members or for any legitimate purpose other than collective bargaining.
Classification of Labor Organizations:

Independent Union
Refers to a union which has a legal personality through independent registration and not thru
a federation.

Chartered Local/ Local Chapter


Refers to a labor organization in the private sector, operating at the enterprise level that
acquire legal personality thru the issuance of a charter certificate by a duly registered
Federation or National Union and registration with the Regional Office in accordance with
Rule III, Sec.2-E. ( D.O.40-B-03)

National Union/Federation
Refers to a group of labor unions in a private establishment organized for collective
bargaining or for dealing with employers concerning terms and conditions of employment for
their member unions or for participating in the formulation of social and employment policies,
standards and programs, registered with the Bureau in accordance with Rule III, Sec.2-B.
composed of independent unions or chartered local/local chapter
Must have at least ten (10) affiliates; each of which must be a duly certified or recognized
collective bargaining agent.

Trade Union Center

55

NOTES IN LABOR RELATIONS

BATCH SINE QUA NON

Refers to a group of registered national unions or federations organized for the mutual aid and
protection of its members, for assisting such members in collective bargaining, or for
participating in the formulation of social and employment policies, standards and programs.

Article 239 Requirements of Registration


A federation, national union or industry or trade union center or an independent union shall acquire
legal personality and shall be entitled to the rights and privileges granted by law to legitimate labor
organization upon issuance of the certificate of registration based on the following requirements:
(a) Fifty pesos (P50) registration fee
(b) The names of its officers, their addresses, the principal addresses of the labor organization, the
minutes of the organizational meetings and the list of the workers who participated in such meetings;
(c) In case the applicant is an independent union, the names of all its members comprising at least twenty
percent (20%) of all the employees in the bargaining unit where it seeks to operate
(d) If the applicant union has been in existence for one or more years, copies of its annual financial
reports; and
(e) Four (4) copies of the constitution and by-laws of the applicant union, minutes of its adoption or
ratification and the list of the members who participated in it.
Article 240- Chartering and Creation of a Local Chapter
A duly registered federation or national union may directly create a local chapter by issuing a charter
certificate indicating the establishment of the local chapter. The chapter shall acquire legal personality only
for purposes of filing a petition for certification election from the date it was issued a charter certificate.
The chapter shall be entitled to all other rights and privileges of a legitimate labor organization only
upon the submission of the following documents in addition to its charter certificate:
(a) The names of the chapters officers, their addresses and the principal office of the chapter; and
(b) The chapters constitution and by-laws: Provided that where the chapters constitution and by-laws
are the same as that of the federation or the national union, this fact shall be indicated accordingly.
The additional supporting requirements shall be certified under oath by the secretary or treasurer of
the chapter and attested by its president.
Article 241- Action on Application
The Bureau shall act on all applications for registration within thirty (30) days from filing.
All requisite documents and papers shall be certified under oath by the secretary or the treasurer of
the organization, as the case may be, and attested to by its president.
Article 242- Denial of registration; Appeal
The decision of the Labor Relations Division in the regional office denying registration may be
appealed by the applicant union to the Bureau within ten (10) days from receipt of notice thereof.
Article 243- Additional Requirements for Federation or National Unions
Subject to Article 238, if the applicant for registration is a federation or a national union, it shall, in
addition to the requirements of the preceding Articles, submit the following:
(a) Proof of the affiliation of at least ten (10) locals or chapters, each of which must be a duly recognized
collective bargaining agent in the establishment or industry in which it operates, supporting the
registration of such applicant federation or national union; and
(b) The names and addresses of the companies where the locals or chapters operate and the list of all the
members in each company involved
Notes:
Where to file a petition for registration?
Applications for registration of independent labor unions, chartered locals, and workers association
shall be filed with the Regional Office where the applicant principally operates.
Applications for registration of federations, national unions or workers associations operating in more
than one region shall be filed with the Bureau of Labor Relations
Jurisdiction:
Petition for Registration of the Labor Organization
Inter/intra union dispute; under the jurisdiction of the Regional Director if it involves
independent union
appealable to BLR
If it involves National Unions/Federations - jurisdiction is with the BLR
appealable to Sec.
of Labor.
Rule III, Sec. 2 of D.O 40-03 Requirements for Application
A. The application for registration of an independent labor union shall be accompanied by the following
documents:

56

NOTES IN LABOR RELATIONS

BATCH SINE QUA NON

1) The name of the applicant labor union, its principal address, the name of its officers and their respective
addresses, approximate number of employees in the bargaining unit where it seeks to operate, with a
statement that it is not reported as a chartered local of any federation or national union
2) The minutes of the organizational meeting(s) and the list of employees who participated in the said
meeting(s)
3) The name of all its members comprising at least 20% of the employees in the bargaining unit
4) The annual financial reports if the applicant has been in existence for one or more years, unless it has not
collected any amount from the members, in which case a statement to this effect shall be included in the
application
5) The applicants constitution and by-laws, minutes of its adoption or ratification, and the list of the members
who participated in it. The list of ratifying members shall be dispensed with where the constitution and bylaws 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).
B. The application for registration of federations and national unions shall be accompanied by the following
documents:
1) A statement indicating the name of the applicant labor union, its principal address, the name of its officers
and their respective addresses
2) The minutes of the organizational meeting(s) and the list of employees who participated in the said
meeting(s)
3) The annual financial reports if the applicant union 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
4) The applicant unions 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(s). In such a case, the
factual circumstances of the ratification shall be recorded in the minutes of the organizational meeting(s)
5) The resolution of affiliation of at least ten (10) legitimate labor organization, whether independent unions
or chartered locals, each of which must be a duly certified or recognized bargaining agent in the
establishment where it seeks to operate; and
6) The name and addresses of the companies where the affiliates operate and the list of all the members in
each company involved.
Labor organizations operating within an identified industry may also apply for registration as a federation or
national union within the specified industry by submitting to the Bureau the same set of documents.
C. The application for registration of a workers association shall be accompanied by the following documents:
1) The name of the applicant association, its principal address, the name of its officers and their respective
addresses
2) The minutes of the organizational meeting(s) and the list of members who participated therein
3) The financial reports of the applicant association if it 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
4) The applicants constitution and by-laws to which must be attached the names of ratifying members, the
minutes of adoption or ratification of the constitution and by-laws and the date when ratification was made
unless ratification was done in the organizational meeting(s), in which case such fact shall be reflected in
the minutes of the organizational meeting(s).
D. Application for registration of a workers association operating in more than one region shall be accompanied,
in addition to the requirements in the preceding subsection, by a resolution of membership of each member
association, duly approved by its board of directors.
E. A duly registered federation or national union may directly create a local/chapter by issuing a charter
certificate indicating the establishment of the local/chapter. The local/chapter shall acquire legal personality for
purposes of filing petition for certification election from the date it was issued a charter certificate.
The local/chapter shall be entitled to all other rights and privileges of legitimate labor organization only
upon the submission of the following documents in addition to its charter certificate:
(a) The names of the local/chapters officers, their addresses and the principal office of the local/chapter,
and
(b) The chapters constitution and by-laws provided, that where the chapters constitution and by-laws are
the same as that of the federation or the national union, this fact shall be indicated accordingly.
The genuineness and due execution of the supporting requirements shall be certified under oath by the
secretary or treasurer of the local/chapter and attested to by its president.
Registration of Independent Unions
Take note of the 20% requirement Art.239(c)

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the same requirement DOES NOT apply to local chapters

Denial of Registration
Grounds:
a) falsification or serious irregularities in the application for registration or in the supporting
documents
b) Non- compliance of the requirements for registration particularly the certification and attestation
requirements
c) failure to complete the registration requirements within 30 days from the receipt of notice (without
prejudice to file a new application)
Note:
Under D.O.40-03, with respect to the requirement of the list of the ratifying members, the same 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.
Question:
When does a labor organization, particularly an independent union, acquire legal personality?
Answer:
On the day the certificate of registration is actually issued.
BAR QUESTIONS: (set 3 no. 4)
What is the importance of labor organization?
Answer:
Labor organization is important for purposes of collective bargaining as a group and dealing with the employer
for some other lawful purposes.
BAR QUESTIONS: (set 3 no. 5)
At what particular point does a labor organization acquire a legal personality?
a) On the date the agreement to organize the members;
b) On the date the application for registration is duly filed with the Department of Labor
c) On the date appearing on the certificate of registration
d) On the date the certificate of registration
e) None of the above
BAR QUESTIONS: (set 3 no. 6)
At what particular point does a labor organization acquire a legal personality?
a) On the date the agreement to organize the union is signed by the majority of all its members
b) On the date the application for registration is duly filed with the DOLE
c) On the date appearing on the Certificate of Registration
d) On the date the Certificate of Registration is actually issued
Query:
When does a chartered local/ local chapter acquire legal personality?
Answer:
It depends. Upon the issuance of its charter certificate, it acquires limited personality, that is, only for the
purpose of filing a petition for certification. Acquisition of its complete personality is upon submission of the
documentary requirements under Art. 240.
Recognition of a labor Organization
Not merely a ministerial function. After a labor organization had filed the necessary papers and documents
for registration, it becomes mandatory for the Bureau of Labor Relations to check if the requirements under
the law have been sedulously complied with. If the 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.
Art. 243 Requirements for federations registration

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a) Proof of affiliation of at least ten (10) legitimate labor organizations, whether independent unions or chartered
locals, each of which must be a duly certified or recognized bargaining agent in the establishment in which it
operates
b) Names & addresses of the companies where the locals or chapters operate and the list of all the members in
each company involved.
Note: Trade Unions are not allowed to create chartered local
Effects of Cancellation of Registration of Federation
The cancellation of registration of a federation or national union shall operate to divest its locals/chapters of
their status as legitimate labor organizations, unless the locals/ chapters are covered by a duly registered
CBA. In such case, the locals/chapters shall be allowed to register as independent unions, failing which they
shall lose their legitimate status upon the registration of the CBA. (sa laktud nga pagkasulti, mamatay
ang local chapter kung ma-cancel ang registration sa federation except kung naay CBA)
Legal Personality of a Union
It can only be questioned thru an independent petition for cancellation of union registration and not by
way of collateral attack in the petition for certification election proceedings.
Constitution, By-laws and Regulations
This is a registration requirement which constitutes a contract between the members which the courts will
enforce, if not immoral or contrary to public policy or the law of the land.
Note:
The certification and attestation requirement is a mandatory requirement and failure to comply thereof makes
the labor organization not a legitimate labor organization.
The application for registration and all the supporting documents must be certified under oath by the secretary
or treasurer of the labor organization and attested to by the President. This is designed to insure that the labor
organization which the employee is dealing with is a bona fide organization and to prevent the commission of fraud.
The same provides protection to vulnerable and unsuspecting employees who may be lured to join fly-by- night unions
whose sole purpose is to control union funds or to use the union for dubious ends.
Affiliation
There is affiliation when an independent union enters into an agreement of affiliation with a federation or a
national union. Affiliation also exists when a chartered local is subsequently granted of an independent
registration but does not disaffiliate from its mother federation.
In affiliation, the relationship between the independent union and the federation is understood to be that of
agency where the independent union is the principal and the federation is the agent.
Affiliation does not divest the local union of its own personality; neither does it give the mother federation the
license to act independently of the local union. It only gives rise to a contract of agency, where the federation
acts in representation of the local union.
Report of Affiliation - Where to file:
The report of affiliation of an independently registered labor union with a federation or national union shall be
filed with the Regional Office that issued its certificate of registration. (Sec.6 of Rule III of D.O. 40-03)
Affiliation requires that there must be an approval of the majority of all the union members in a general
membership meeting duly called for that purpose.
Requirements of Affiliation: (Sec.7 of Rule III of D.O. 40-03)
The report of affiliation of independently registered labor unions with a federation or national union shall be
accompanied by the following documents:
(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 is the incumbent bargaining agent
Disaffiliation
The right of a local union to disaffiliate from its mother union is well settled. It has been repeatedly held that a
local union, being a separate and voluntary association, is free to serve the interest of all its members including the
freedom to disaffiliate when circumstances warrant. This right is consistent with the constitutional guarantee of
freedom of association. However, this right to disaffiliate is subject to the restraints imposed by the Constitution and
Bylaws of the federation and on the terms laid down in the agreement w/c brought the affiliation into existence.
In other words:

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Gen. Rule The right to disaffiliate is well-settled. Any union has the right to disaffiliate and the same
does constitute an act of disloyalty.
Exception The right to disaffiliate is subject to the restraints imposed by the constitution and bylaws of the federation and the terms laid down in the agreement which brought the affiliation into
existence must be observed.

Note:
Generally, a labor union may disaffiliate from the mother union only during the 60-day freedom period
immediately preceding the expiration of the CBA. However, a labor union may disaffiliate from the mother union at any
time provided that there is no prohibition to the contrary.
Disaffiliation must be by Majority decision:
must be decided by the entire membership through secret balloting
BAR QUESTIONS: (set 3 no. 7)
In the collective bargaining agreement between Royal Films and its rank and file Union (which is directly affiliated
with MFF, a national federation), a provision on the maintenance of membership expressly provides that the Union
can demand the dismissal of any member employee who commits acts of disloyalty to the union as provided for in
its constitution and by-laws. The same provision contains an undertaking by the Union (MFF) to hold Royal Films
free from any and all claims of any employee dismissed.
During the term of the CBA, MFF discovered that certain employee members were initiating a move to
disaffiliate from MFF and join a rival federation, FAMAS. Forthwith, MFF sought the dismissal of its employee
members initiating the disaffiliation movement from MFF to FAMAS. Royal Films, relying on the provision of the
aforementioned CBA, complied with MFFs request and dismissed the employees identified by MFF as disloyal to
it.
1) Will an action for illegal dismissal against Royal Films and MFF prosper or not?
2) What are the liabilities of Royal and MFF to the Dismissed employees, if any?
Answer:
Check the case of Malayang Samahan ng mga Manggagawa sa M.G. vs. Ramos
BAR QUESTIONS: (set 3 no. 8)
Free Workers Union, a union representing the employees of Greenfield Company is an affiliate of the National
federation United Workers of the Philippines. Free Workers Unions CBA with Greenfield Co. contains a union
security clause. Bitter policy disagreement arose between the local union and the federation. As there is no
provision in the federations constitution prohibiting disaffiliation, the local union decided to disaffiliate from the
national federation. However, the federation accused the local union officers of disloyalty and advised the
company of the expulsion of the local union officers. It demanded their separation from the employment pursuant
to the union security clause in the CBA. Without conducting an investigation, the company dismissed the officers,
arguing that the union security clause made the dismissal of the officers automatic.
(a) Are the dismissals valid?
(b) What is the basis of the right of a union to disaffiliate?
Answer:
Check the case of Malayang Samahan ng mga Manggagawa sa M.G. vs. Ramos

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AUG. 30, 2014

LABOR RELATIONS
Independent labor organization acquires legal personality on the day of actual issuance of the certificate of
registration.
Chartered local/local chapter acquires legal personality:
a) on the day of issuance of a charter certificate; limited personality for the purpose of filing a petition for
certification election; and
b) acquires complete personality upon compliance with the documentary requirements under Art.240
Registration of the CBA is not necessary for its validity; registration is only necessary for the contract-bar rule
to apply.
EFFECTS OF DISAFFILIATION:
Disaffiliation severs the relationship between the local union and the mother federation. However, the CBA
continues to bind the members of the new or disaffiliated & independent union up to the CBAs expiration date.
This is because of the Substitutionary Doctrine.
Substitutionary Doctrine

Provides that 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. The employees, thru their new bargaining agent, cannot renege on the
collective bargaining contract, except to negotiate with management for the shortening thereof.

An independent union that disaffiliates from its mother federation does not lose its legal personality for it has
its own registration.
A chartered local that disaffiliates from its mother federation loses its legal personality for it does not have its
own registration. Hence, it must register itself in order to retain its legal personality.

MERGER AND CONSOLIDATION


new concept under D.O 40-03
Merger
It is a process where a labor organization absorbs another resulting in the cessation of the absorbed labor
organizations existence and the continued existence of the absorbing labor organization.
Illustration: A + B = A/B
Consolidation
refers to the creation or formation of a new union arising from the unification of two or more unions
Illustration: A + B = C
EFFECTS: (MERGER)
Transfer to the absorbing organization all the rights, interest and obligation of the absorbed organization.
EFFECTS: (CONSOLIDATION)
The newly created labor organization acquires all the rights, interest and obligations of the consolidating labor
unions.
Take note:
In case of merger and consolidation, the notice should be filed with and recorded by the Regional Office that
issued the registration.
CHANGE OF NAME: EFFECT
The change of name of a labor organization does not affect its legal personality. All the rights and obligations
of a labor organization under its old name shall continue to be exercised by the labor organization under its
new name.
Art.244-Cancellation of Registration
The certificate of registration of any legitimate labor organization, whether national or local, shall be
cancelled by the Bureau, after due hearing, only on the grounds specified in Article 246 hereof.
Art. 245 Effect of Petition for Cancellation of Registration
A petition for cancellation of union registration shall not suspend the proceedings on certification
election nor shall it prevent the filing of a petition for certification election.

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In case of cancellation, nothing herein shall restrict the right of the union to seek just and equitable
remedies in the appropriate courts.
Art. 246 Grounds for Cancellation of Union Registration
The following may constitute grounds for cancellation of union registration:
(a) Misrepresentation, false statement or fraud in connection with the adoption or ratification of the
constitution and by-laws or amendments thereto, the minutes of ratification, and the list of members
who took part in the ratification;
(b) Misrepresentation, false statements or fraud in connection with the election of officers, minutes of the
election of officers, and the list of voters;
(c) Voluntary dissolution by the members
Art. 247 Voluntary Cancellation of Registration
The registration of a legitimate labor organization may be cancelled by the organization itself,
Provided, that at least two-thirds of its general membership votes in a meeting duly called for that purpose to
dissolve the organization: Provided, further, That an application to cancel registration is thereafter submitted
by the board of the organization, attested to by the President thereof.
Notes:
CANCELLATION OF REGISTRATION
Subject to the requirements of notice and due process, the registration of any legitimate independent labor
union, chartered local and workers association may be cancelled by the Regional Director, or in the case of
federations, national or industry unions and trade union centers, by the Bureau Director, upon the filing of an
independent complaint or petition for cancellation.
CANCELLATION OF REGISTRATION
Is an intra/inter-union dispute but jurisdiction is not with the med-arbiter.
Jurisdiction is vested to:
a) Regional Director- for independent labor union, chartered local & workers association (appealable to
BLR)
b) BLR for federations & trade union centers (appealable to DOLE Secretary)
Voluntary Cancellation
The law does not require the members to state the justification or the reason for the dissolution; only those
which are provided by law.
Take note of the 2/3 vote requirement in a meeting duly called for that purpose and the submission of a
petition to cancel registration with attestation by the President requirement
Effects of cancellation of registration:
the union loses its legal personality
Who may file the petition for cancellation?
any party in interest (w/c may include the employer)
During the pendency of the cancellation proceeding, the labor organization whose registration is sought to be
cancelled continues to enjoy all the rights accorded to a legitimate labor organization. Only a final order of cancellation
can strip a legitimate labor organization of its rights.
If the legitimate labor organizations registration is cancelled during the pendency of a case, same
organization may still continue to be a party of the case without the necessity of substitution. However, whatever
decision rendered therein shall only be binding to members who have not signified their desire to withdraw from the
case before its trial and decision of merit.
Chapter II
Rights and Condition of Membership
Any employee is already qualified for union membership starting on his first day of service. Under what
conditions does an employee become a union member depends on the unions constitution and by-laws. An
employees membership in a union, however, does not necessarily mean coverage by the CBA because CBA defines
its coverage as agreed upon by the parties.
Art. 249 Rights and Conditions of Membership in a Labor Organization
The following are the rights and conditions of membership in a labor organization:

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(a) No arbitrary or excessive initiation fees shall be required of the members of a legitimate labor
organization nor shall arbitrary, excessive or oppressive fine and forfeiture be imposed;
(b) The members shall be entitled to full and detailed reports from their officers and representatives of all
financial transactions as provided for in the constitution and by-laws of the organization;
(c) The members shall directly elect their officers, including those of the national union or federation,
trade center or any similar aggrupation to which their union is affiliated, by secret ballot at intervals of
five (5) years. No qualification requirements for candidacy to any position shall be imposed other than
membership in good standing in subject labor organization. The Secretary or any other responsible
union officer shall furnish the Secretary of Labor and Employment with a list of the newly elected
officers, together with the appointive officers or agents who are entrusted with the handling of funds
within 30 calendar days after the election of officers or from the occurrence of any change in the list of
officers of the labor organization;
(d) The members shall determine by secret ballot, after due deliberation, any question of major policy
affecting the entire membership of the organization, unless the nature of the organization or force
majeure renders such secret ballot impractical, in which case the board of directors of the
organization may make the decision in behalf of the general membership;
(e) No labor organization shall knowingly admit as member or continue in membership any individual
who belongs to a subversive organization or who is engaged directly or indirectly in any subversive
activity;
(f) No person who has been convicted of a crime involving moral turpitude shall be eligible for election
as union officers or for appointment to any position in the union
(g) No officer, agent or member of a labor organization shall collect any fees, dues, or other contributions
in its behalf or make any disbursements of its money or funds unless he is duly authorized pursuant
to its constitution and by-laws;
(h) Every payment of fees, dues or other contributions by a member shall be evidenced by a receipt
signed by the officer or agent making the collection and entered into the record of the organization to
be kept and maintained for the purpose
(i) The funds of the organization shall not be applied for any purpose or object other than those
expressly provided by its constitution and by-laws or those expressly authorized by written resolution
adopted by the majority of the members at a general meeting duly called for the purpose
(j) Every income or revenue of the organization shall be evidenced by a record showing its source, and
every expenditure of its funds shall be evidenced by a receipt from the person to whom the payment is
made, which shall state the date, place and purpose of such payment. Such record or receipt shall
form part of the financial records of the organization;
Any action involving the funds of the organization shall prescribe after 3 years from the date
of submission of the annual financial report to the DOLE or from the date the same should have been
submitted as required by law, whichever comes earlier; Provided, that this provision shall apply only to a
legitimate labor organization which has submitted the financial report requirements under this code; Provided
further, That failure of any labor organization to comply with the periodic financial reports required by law and
such rules and regulations promulgated thereunder 6 months after the effectivity of this act shall
automatically result in the cancellation of union registration of such labor organization;
(k) The officers of any labor organization shall not be paid any compensation other than the salaries and
expenses due to their positions as specifically provided for in its constitution and by-laws, or in a
written resolution duly authorized by a majority of all the members at a general meeting duly called for
the purpose. The minutes of the meeting and the list or participants and ballots casts shall be subject
to inspection by the Secretary of Labor or his duly authorized representatives. Any irregularities in the
approval of the resolutions shall be a ground for impeachment or expulsion from the organization;
(l) The treasurer of any labor organization and every officer thereof who is responsible for the account of
such organization for the collection, management, disbursement, custody or control of the funds,
money and other properties of the organization, shall render to the organization and to its members a
true and correct account of all moneys received and paid by him since the last day on which he
rendered such account and of all bonds, securities and other properties of the organization entrusted
to his custody or under his control. The rendering of such account shall be made:
1) At least once a year within 30 days after the close of its fiscal year
2) At such other times as may be required by a resolution of the majority of the members of the
organization; and
3) Upon vacating his office
The account shall be duly audited and verified by affidavit and a copy thereof shall be
furnished to the Secretary of Labor
(m) The books of accounts and other records of the financial activities of any labor organization shall be
open to inspection by any officer or member thereof during office hours
(n) No special assessment or other extraordinary fees may be levied upon the members of a labor
organization unless authorized by a written resolution of a majority of all the members at a general
membership meeting duly called for the purpose. The secretary of the organization shall record the
minutes of the meeting including the list of all members present, the votes cast, the purpose of the

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special assessment or fees and the recipient of such assessment or fees. The record shall be attested
to by the president;
(o) Other than for mandatory activities under the code, no special assessment, attorneys fees,
negotiation fees or any other extraordinary fees may be checked off from any amount due to an
employee without an individual written authorization duly signed by the employee. The authorization
should specifically state the amount, purpose and beneficiary of the deduction; and
(p) It shall be the duty of any labor organization and its officers to inform its members on the provisions
of its constitution and by-laws, collective bargaining agreement, the prevailing labor relations system
and all their rights and obligations under existing labor laws.
For this purpose, registered labor organizations may assess reasonable dues to finance
labor relations seminars and other labor education activities.
Any violation of the above rights and conditions of membership shall be a ground for
cancellation of union registration or expulsion of officer from office, whichever is appropriate. At least 30% of
all the members of union or any member or members specially concerned may report such violation to the
Bureau. The Bureau shall have the power to hear and decide any reported violation to mete the appropriate
penalty.
Notes:
The rights and conditions laid down in this article are divided into 4, namely:
1. Political Rights the members right to vote and be voted for, subject to lawful provisions on qualifications
and disqualifications
only union member can take part in the election of union officers
Take note of Art. 249 (c): Pertains to election of union officers. [Political right]
election is through secret balloting
election takes place at the intervals of 5 years [5 years term of officers]
The positions to be filled up and the manner of election shall be governed by the Unions Constitution
and by-laws or agreement among members. Absence thereof, Rule XII, D.O. 40-03 applies.

If officers do not call an election for new officers, a petition for the conduct of election may be filed by
at least 30% of the members to:
a. Regional office of DOLE who issues the registration; in case of independent union, chartered
local, etc.
b. BLR in case of federations, national unions, etc.

Qualifications: Union Officers


1. must be employed in the company
2. membership of good standing in the labor organization (c)
3. have not been convicted of a crime involving moral turpitude (f)
4. must not belong to a subversive organization or engaged directly or indirectly in any subversive
activity (e)
Take note:
Officers of any labor organization shall not be paid any compensation other than salaries and
expenses due to their positions as specifically provided for in its constitution and by-laws, or in a
written resolution duly authorized by a majority of all the members at a general membership
meeting duly called for the purpose. (k)
duties of the treasure: (l)

IMPEACHMENT OF UNION OFFICERS:


Grounds:
a. violation of the rights and conditions of membership in a labor organization
b. commission of irregularities in the approval of resolutions regarding compensation of
union officers
c. membership in another labor organization
d. culpable violation of the constitution and by-laws of the union

Impeachment is an intra-corporate dispute/ Intra-union dispute. Jurisdiction is


with
the med-arbiter. The med- arbiter should decide the case on its merits. Said
med-arbiter cannot
issue an order referring back the case to the members and let the
members decide whether or not to
expel or impeach union officers. The med-arbiter
should impose the appropriate penalty against those
officers who are guilty of the
acts imputed against them.
A union officer cannot be expelled for past malfeasance or misfeasance. (The same with the
Aguinaldo Doctrine in public corp.)

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2. Deliberative and decision-making right the members right to participate in deliberations on major policy
questions and decide them by secret ballot. (d)
Example: Disaffiliation (majority)
Voluntary dissolution (2/3)
both requires majority decision or be decided by a certain percentage of all the members- thru voting
3. Rights over money matters

Article 249: a, b ,g, h, i, j, m, n, o

Check off a method of deducting from an employees pay at prescribed period, the amount due to
the union for fees, fines or assessments.

Requirements for a VALID CHECK OFF:


a. the amount and collection of union dues must be approved by the members as it affects the entire
membership
b. the right of the worker or his union to check-off has been recognized by the employer or
authorized in writing by the individual worker concerned or stipulated in CBA (note: if
stipulated in the CBA, no need of individual authorization)
c. the amount of union dues should be reasonable and prohibits the imposition of excessive and
arbitrary fees

Subject of the check off:


a. Union Dues
defined as payment to meet the unions general and current obligations; the payment must be
regular, periodic and uniform
b. fees/fines
c.

Assessment
Refers to payments used for a special purpose, usually required only for a limited time.
Example: Gift para sa abogado sa union tungod kay nagcelebrate sa b-day. Ang contribution
na para ipalit og gift, mao na ang gitawag og assessment.
(Take note for the difference between union dues and assessments)

Requisites for a VALID LEVY in case of special assessment/assessment:


1. authorization by a written resolution of the majority of all the members at a general meeting
duly called for the purpose
2. Secretarys record of the minutes of the meeting including the list of all members who are
present, the votes casts and the purpose of the special assessment to be attested by the
president.

Requirement for a VALID CHECK-OFF of a special assessment:


1. Individual written authorization duly signed by the employee; The authorization should specifically
state the amount, purpose and beneficiary of the deduction.
The same applies to check-off of attorneys fees or any other extraordinary fees

Query:
1. Atty. ABX, the lawyer of union Y, on a the retainer basis, will have his birthday on Nov. 06. In appreciation
for his faithful and courageous services to the union, the BOD passes a resolution, assessing every union
member a sum of P200 to be used for the purchase of a b-day gift for Atty. ABX. Some union members
refused to pay the assessment. Is their refusal justified?
Answer.
Yes, because such assessment fails to comply with the first requirement of a valid
levy
in
special assessment. The resolution was not authorized by the members; it was only
passed by the Board of
Directors.
[Note: There is a need to determine whether such refusal is justified or not because if such
was
not
justified, it may be considered as disloyalty to union which may result to expulsion. If
the one is expelled from the
union, it may result to dismissal especially when there is a union security clause in the CBA.]

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2. At a general membership meeting called for the purpose of raising funds to finance a projected strike, a
majority of the members of the union voted for a written assessing each member a sum P5. Later on a
member who did not vote affirmatively for the resolution and did not execute an individual written
authorization for the deduction of the assessment from his wages, refuse to pay the same. Is his refusal
justified?
Answer.
No, because there was a valid levy, that is, there has been compliance with the
However, the P5 cannot be checked-off from his pay because he did not execute a written
member, however, can still be compelled to pay the P5 but not thru check-off.
Note:

Said

Requisites for a VALID LEVY in case of special assessment/assessment:


authorization by a written resolution of the majority of all the members at a general
meeting duly called for the purpose

requirements.
authorization.

Secretarys record of the minutes of the meeting including the list of all members who are
present, the votes casts and the purpose of the special assessment to be attested by the
president.

Requirement for a VALID CHECK-OFF of a special assessment:


Individual written authorization duly signed by the employee; the authorization should
specifically state the amount, purpose and beneficiary of the deduction.
This is for the collection of special assessment only

(Note: memorize the requirements for a valid check-off, valid levy and check-off of special assessments.)
The requirement of written authorization for a valid check-off in terms of attorneys fees and special
assessments does not apply to mandatory activity.
Mandatory activity is a judicial process of settling disputes laid down by the law.
- Amicable settlement
Not a mandatory activity under the Code
- Compulsory arbitration
Agency fee
Refers to the amount which a non-union member pays to the union because he benefits from the
CBA negotiated by the union.
Take note: In case of agency fee, individual check-off authorization is not required.
Employers liability in check-off arrangement
No provision of law makes the employer directly liable for the payment to the labor
organization
of union dues and assessments that the former fails to deduct from its
employees salaries and wages pursuant to
a check-off stipulation. The employers failure to make the requisite deductions may constitute a violation of a
contractual commitment for
which it may incur liability for unfair labor practice. But the employer does not, by that
omission, incur liability to the union for the aggregate of dues or assessment uncollected from
the
union
members, or agency fees for non-union employees/members.
In other words, if the employer will not collect or deduct dues and assessments pursuant of a checkoff stipulation, it is not liable to the union but it can be guilty of ULP.
BAR QUESTIONS: (set 3 no. 9)
The union deducted P20 from Rogelios wages for January. Upon inquiry, he learned that it was for death aid
benefits and that the deduction was made pursuant to a board resolution of the directors of the union. Can Rogelio
object to the deduction? Explain briefly.
Answer:
The deduction is a special assessment because it was for death-aid benefit. Can he object the deduction?
Yes, if there was no valid levy. (Take note of the requirements for a valid levy)
BAR QUESTIONS: (set 3 no. 10)

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Atty. Facundo Veloso was retained by Welga Labor Union to represent it in the collective bargaining negotiations.
It was agreed that Attty. Veloso would be paid in the sum of P20,000.00 as attorneys fees for his assistance in the
CBA negotiations. After the conclusion of the negotiations, Welga Labor Union collected from its individual
members the sum of P100.00 each to pay for Atty. Velosos fees and another sum of P100 eacch for services
rendered by the union officers. Several members of the Welga Labor Union approached you to seek advice on the
following matters:
a) Whether or not collection of the amount assessed on the individual members to answer for the attorneys
fee was valid
b) Whether or not the assessment of P100 from the individual members of the Welga Labor Union for
services rendered by the union officers in the CBA negotiations was valid.
Answer:
The assessment of P100 from each member as attorneys fees for the CBA negotiation is not valid. Art. 228(b)
provides that attorneys fees shall not be imposed in any individual members. It shall be charged against union funds.
The assessment of P100 as negotiation fees charged to each individual union member and payable to union
officers is also not valid for the same reason. It is in violation of Art. 228 (b)
BAR QUESTIONS: (set 3 no. 11)
What requisites must a union comply with before it can validly impose special assessments against its members
for incidental expenses, attorneys fees, representation expenses and the like?
Answer:
Requisites for a VALID LEVY in case of special assessment/assessment:
authorization by a written resolution of the majority of all the members at a general meeting duly
called for the purpose
Secretarys record of the minutes of the meeting including the list of all members who are present,
the votes casts and the purpose of the special assessment to be attested by the president.
Requirement for a VALID CHECK-OFF of a special assessment:
Individual written authorization duly signed by the employee; the authorization should specifically
state the amount, purpose and beneficiary of the deduction.
BAR QUESTIONS: (set 3 no. 12)
Polaris Drug Company had an existing CBA with Polaris Workers Union (PWU) which was to expire on May 31,
1999. PWU ha a total membership of 100 rank and file employees of the company. Mike Barela, a militant member
of the union, suspected that the union officers were misappropriating union funds as no financial report was given
to the general membership during the unions general assembly. Hence, Mike prepared a sworn written complaint
and filed the same with the Office of the Secretary of Labor on May 10, 1999, petitioning for an examination of the
financial records of PWU.
a) Is the Secretary of Labor authorized by law to examine the financial records of the union? If so, what
power? If not, why not?
b) Under the facts given above, could an examination or audit of the financial records of the union be
ordered? Why?
Answer:
a) Yes, art.288 empowers the Sec. of Labor to examine financial records of the unions to determine
compliance or non-compliance of the pertinent provisions of Labor Code. This is in relation to the
rights of the members over money matters
b) No, because the requirement is that there should be a complaint, under oath, and duly supported by
written consent of at least 20 % of the total membership of the labor organization concerned.
BAR QUESTIONS: (set 3 no. 13)
On what ground or grounds may a union member be expelled from the organization?
Answer:
Said grounds may be found in Unions constitution and by-laws or the conditions for union membership.
Example
a. Refusal to pay union dues and assessments
b. Disloyalty to union
c. Violation of the constitution and by-laws of the union
BAR QUESTIONS: (set 3 no. 14)
May the general manager of a company be held jointly and severally liable for backwages of an illegally dismissed
employee?
Answer:
The general manager may be liable if he acted in bad faith, motivated by personal ill-will or excess of authority
in dismissing the employee.

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BAR QUESTIONS: (set 3 no. 15)


True or false: Agency fees cannot be collected from a non-union member in the absence of a written authorization
signed by the worker concerned
Answer:
False. An agency fee does not require individual written authorization.
Additional Bar Questions:
A is employed by XYZ company where XYZ Employees Union is the recognized exclusive bargaining agent.
Although A is a member of rival union XYR-MU, he receives the benefits under the CBA that XYZ-EU had
negotiated with the company. XYZ-EU assessed A a fee equivalent to the dues and other fees paid by its
members but A insists that he has no obligation to pay said dues and fees because he is not a member of XYZ-EU
and he has not issued an authorization to allow the collection. Explain whether his claim is meritorious.
Answer:
His claim is not meritorious. Agency fees are collected from non-union members who benefit from the CBA.
The same may be collected without written authorization.
Pablo works as a driver at the National Tire Company (NTC). He is a member of the Malayang Samahan ng
Manggagawa sa NTC, the exclusive rank and file collective bargaining representative in the company. The union
has a CBA with NTC which contains a union security and check-off clause. The union security clause contains a
maintenance of membership provision that requires all members of the bargaining unit to maintain their
membership in good standing with the union during the term of the CBA under pain of dismissal. The check-off
clause on the other hand authorizes the company to deduct from union members salaries defined amounts of
union dues and other fees. Pablo refused to issue an authorization to the company for the check-off of his dues,
maintaining that he will personally remit his dues to the union.
a) Would the NTC Management commit unfair labor practice if it desists from checking off Pablos union
dues for lack of individual authorization from Pablo?
b) Can the union charge Pablo with disloyalty for refusing to allow the check off of his union dues and on this
basis, ask the company to dismiss him from employment?
Answer:
a. Yes, because of the presence of check-off clause. Individual authorization is not anymore necessary. But
the management is not liable for the amount which was not checked-off.
b. Yes, because Pablo is obliged to do so and his refusal may result to dismissal from the union security
clause.
4. Right to information art. 249 (p)
Chapter III
Rights of legitimate labor organizations
Art.250 Rights of Legitimate labor organization
A legitimate labor organization shall have the right:
(a) To act as the representative of its members for the purpose of collective bargaining;
(b) To be certified as the exclusive representative of all the employees in an appropriate collective
bargaining unit for purposes of collective bargaining;
(c) To be furnished by the employer, upon written request, with the annual audited financial statements,
including the balance sheet and the profit and loss statement, within 30 calendar days from the date
of receipt of the request, after the union has been duly recognized by the employer or certified as the
sole and exclusive bargaining representatives of the employees in the bargaining unit, or within 60
calendar days before the expiration of the existing CBA or during the collective bargaining
negotiation;
(d) To own property, real or personal, for the use and benefit of the labor organization and its members
(e) To sue and be sued in its registered name; and
(f) To undertake all other activities designed to benefit the organization and its members, including
cooperative, housing welfare and other projects not contrary to law
Notwithstanding any provision of a general or special law to the contrary, the income and the properties of
legitimate labor organization, including grants, endowments, gifts, donations and contributions they may
receive from fraternal and similar organizations local or foreign, which are actually, directly and exclusively
used for their lawful purposes, shall be free from taxes, duties and other assessments. The exemption
provided herein may be withdrawn only by a special law expressly repealing this provision.
Notes:
Rights under Art. 250 (a), (b) , (c) pertain only to unions who are the exclusive bargaining unit, that is, they have
been selected and certified as the exclusive bargaining representative of the employees in the bargaining unit.

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Only a legitimate labor organization can represent employees in collective bargaining. A labor organization
who is not legitimate cannot act as the collective bargaining representative because it has no legal personality.
Right under Art. 250 (c)
The Labor organization concerned can avail this right after it has been accorded recognition by the employer
or after it has been certified as the collective bargaining representative.
Right under Art. 250 (e)
A legitimate labor organization cannot file a suit in behalf of non-union members even if the said non-union
members signed the complaint.
Art. 251 Reportorial Requirements
The following are documents required to be submitted to the Bureau by the legitimate labor
organization concerned.
(a) Its constitution and by-laws, or amendments thereto, the minutes of ratification and the list of
members who took part in the ratification of the constitution and by-laws within 30 days from adoption
or ratification of the constitution and by-laws or amendment thereto;
(b) Its list of officers, minutes of the election of officers, and list of voters within 30 days from election
(c) Its annual financial report within 30 days after the close of every fiscal year; and
(d) Its list of members at least once a year or whenever required by the Bureau.
Failure to comply with the above requirements shall not be a ground for cancellation of union
registration but shall subject the erring officers or members to suspension, expulsion from membership, or
any appropriate penalty
Notes:
This article enumerates the documents required to be submitted to the Bureau by the legitimate labor
organization concerned.
Take note: Failure to comply with the requirements shall not be a ground for cancellation of union registration but shall
subject the erring officers or members to suspension, expulsion from membership or any appropriate penalty.
Note further: Under D. O.40-03: A labor organization which does not submit the said documents can be DELISTED
the same effect of cancellation of unions registration the union losses legal personality.

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September 6

Labor Relations
BAR QUESTIONS: (set 5 no. 1)
Rank and file workers from Peacock feathers, a company with 120 employees, registered their independent labor
organization with the DOLE Regional Office. Management countered with a petition to cancel the unions
registration on the ground that the minutes of ratification of the union constitution and by-laws submitted to the
DOLE were fraudulent. Specifically, management presented affidavits of 10 out of 40 individual named in the list of
union members who participated in the ratification, alleging that they were not present at the supposed January 1,
2010 meeting held for the purpose. The union argued that the stated date of the meeting should have read
January 11, 2010, instead of January 1, 2010, and that, at any rate, the other 30 union members were enough to
register a union. Decide with reason.
Answer;
Analysis:
First, the grounds for the cancellation of the registration is that the minutes of the ratification of the constitution
and by-laws were fraudulent but the labor organization raise a defense with respect to the date of the meeting. Are the
30 union members enough to register a union?
Take note, what is unnecessary with respect to registration of independent organization is that it must be
supported by at least 20% of the employees in the bargaining unit.
Now the question is, whether or not the 30 union members constitute 20% of the 120 employees? 20% of 120
is 24.
Thus, the argument of the union that 30 union members were enough to register a union was correct because
that is more than 20 %. However, as to the allegation that the minutes of ratification of constitution and by-laws were
fraudulent, the same is a ground to cancel union registration if it amounts to misrepresentation.
BAR QUESTIONS: (set 5 no. 2)
Which of the following is a right and/or condition of membership in a labor organization?
a) No arbitrary or excessive initiation fees shall be required of the members of a legitimate labor organization nor
shall arbitrary, excessive or oppressive fine and forfeiture be imposed
b) The members shall be entitled to full and detailed reports from their officers and representatives of all financial
transaction as provided for in the constitution and by-laws of the organization
c) No labor organization shall knowingly admit as members or continue in membership any individual who
belongs to subversive organization or who is engaged directly or indirectly in any subversive activity
d) All of the above
BAR QUESTIONS: (set 5 no. 3)
A labor union lawyer opined that a labor organization is a private and voluntary organization; hence a union can
deny membership to any and all applicants. Is the opinion of counsel in accord with law?
Answer:
No, that is not in accord with the law because the labor code provides that a labor organization has the right
to prescribe rules for the acquisition of membership but it is ULP for a labor organization to restrain, coerce employees
in the exercise of their right to self-organization.
Thus, a labor organization cannot discriminate any employee by denying membership in the labor organization of any
ground other than the usual terms and conditions. Dili pwede nga indiscriminate ang pagdeny ug membership. The
denial of membership should be based on the constitution and by-laws of the organization. Otherwise it amounts to
ULP.
Title V
COVERAGE
Art. 252: Coverage and Employees Right to Self-organization
All persons employed in commercial, industrial and agricultural enterprises and in religious,
charitable, medical, or educational institutions, whether operating for profit or not, shall have the right to selforganization and to form, join, or assist labor organizations of their own choosing for purposes of collective
bargaining. Ambulant, intermittent and itinerant workers, self-employed people, rural workers and those
without any definite employers may form labor organizations for their mutual aid and protection.
Notes:
The right to form, join or assist a labor organization is granted to all kinds of employees of all kinds of
employers, whether public or private, profit or non-profit, commercial or religious. Thus, Article 252 of the Labor Code
allows all persons employed in commercial, industrial and agricultural enterprises to form, join and assist labor

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organization of their own choosing for purposes collective bargaining. The right is extended even to those employed in
traditionally non- profit organization like religious, charitable, medical or educational institutions.
The right of employees to self-organization carries with it the right;
1. To choose which union to join
2. To cancel his union membership anytime
3. To abstain from joining a union
But the right to cancel or abstain from joining a union is not absolute. It cannot be exercise as a general rule
when a labor union and an employer have agreed on a close shop arrangement.
The employees may form labor organization or workers association.
Labor Organization vs. Workers Association:
Labor organization refers to any union or association of employees in the private sector which exists in
whole or in part for the purpose of collective bargaining, mutual aid, interest, cooperation, protection, or other lawful
purposes.
Workers Association refers to an association of workers organized for the mutual aid and protection of its
members or for any legitimate purpose other than collective bargaining.
In other words, labor organization exists in whole or part for the purpose of collective bargaining while workers
association is for mutual aid and protection.
Collective bargaining is not available in workers association.
Art. 254. Ineligibility of Managerial Employees to join any Labor Organization; Right of Supervisory
Employees.
Managerial employees are not eligible to join, assist or form any labor organization. Supervisory
employees shall not be eligible for membership in the collective bargaining unit of the rank-and-file
employees but may join, assist or form separate collective bargaining unit and/or legitimate labor
organizations of their own. The rank-and-file union and the supervisors union operating within the same
establishment may join the same federation or national union.
Art. 255. Effect of Inclusion as Members of Employees Outside the Bargaining Unit
The inclusion as union members of members of employees outside the bargaining unit shall not be a
ground for the cancellation of the registration of the union. Said employees are automatically deemed
removed from the list of membership of said union.
Notes:
1. MANAGERIAL EMPLOYEES AND SUPERVISORY EMPLOYEES
o

Managerial employees are not eligible to join, assist or form labor organizations. However, such
prohibition applies only to labor organization and no prohibition to join workers association.

Supervisory employees
Supervisors can join, assist or form a labor organization but they shall not be eligible for
membership in the collective bargaining unit of the rank and file employees. They may join, assist
or form separate collective bargaining unit and/or legitimate labor organization of their own.
Pwede sila mag join, assist or form og labor organization or collective bargaining unit of their own.
Pero dili pwede mag uban sa rank and file.

Supervisors union and rank and file employees union in the same establishment may join the
same federation or national union. (Before the 2007 amendment, supervisors and rank and file
union cannot join the same federation)

Who is a managerial employee?


It refers to an employee who is vested with powers and prerogatives to lay down and execute management
policies, as to hire, transfer, suspend, lay off, recall, discharge, assign or discipline employees.
What is the importance of the definition of managerial employees?
Designation should be reconciled with the actual Job Description of subject employees. It doesnt mean that
your designation as a manager makes you as such. What matters is your job description.
The mere fact that an employee is designated as manager does not necessarily make him one. Otherwise
one can be given a title just to deprive him to be a member of a union. What determines whether an employee has a
rank and file or managerial status is the nature of the employees function and not the nomenclature given to the job.

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Constitutionality of the Prohibition:


Article III Section 8 of the Constitution provides that:
The right of the people including those employed in the public and private sector to form unions, association, or
societies for purposes not contrary to law shall not be abridged.
Does the prohibition of managerial employees to join labor organization violate the constitution?
No. That constitutional right is subject to the condition that its exercise should not be for purposes contrary to
law. If managerial employees would belong to or be
affiliated with a union, said union might not be assured of
their loyalty in view of evident conflict of interests. The union can become company-dominated with the presence of
managerial employees in union membership
2. CONFIDENTIAL EMPLOYEES:
o

Not all confidential employees are prohibited from joining a labor organization.

Illustrative Case:
San Miguel Corporation vs. Laguesma
o

Confidential employees are those who assist or act in a confidential capacity to persons who formulate,
determine and effectuate management policies in the field of labor relations.

Only those confidential employees who have access to confidential labor relation policies or informations
are prohibited from joining a labor organization.

Confidential employees who have access to confidential informations from business stand point are not
prohibited from joining any labor organization.

The rationale for the prohibition is the same with that of managerial employees. -Conflict of interest-

3. EMPLOYEE-MEMBERS OF A COOPERATIVE;
Illustrative Case:
Cooperative Rural Bank of Davao vs. Calleja
o
o
o
o

An employee of a cooperative who is also a member and co-owner thereof cannot invoke the right to
collective bargaining for certainly an owner cannot bargain with himself or his co-owner.
It is the fact of ownership of the cooperative and not the involvement in the management thereof w/c
disqualifies a member from joining a labor organization within the cooperative.
As to the employees who are neither members nor co-owners of the cooperative, they are entitled to
exercise the rights of all workers to organization, collective bargaining negotiations and others as provided
by law.
The same with managerial employees, employee-members of a cooperative can join, assist, or form
workers association.

4. FOREIGN WORKERS
o All aliens whether natural or juridical, as well as foreign organizations are strictly prohibited from
engaging directly or indirectly in all forms of trade union activities except those:
a) Aliens working in the country with valid working permit issued by DOLE; and
b) Said aliens are nationals of a country which grants the same or similar rights with Filipino workers
as certified by DFA
5. SECURITY GUARDS
Illustrative Case:
Manila Electric Company vs. Secretary of Labor
o

They may join a labor organization of the rank and file or that of the supervisory union, depending on
their rank.

*** working children


Have also the right to join a labor organization of their own choosing.

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*** home workers


can also join of their own choosing
*** Employees of a legitimate independent contractor or subcontractor
Are also entitled to all the rights and privileges of a regular employee under the labor code which includes the
right to self-organization, collective bargaining and peaceful concerted actions.
Inclusion
What is the effect of inclusion of members outside the bargaining unit?
Under the new law, the inclusion of members outside bargaining unit shall not be a ground for
the cancellation of registration of the union; said employees are automatically removed from
the list of membership of the union.
For example:
Ang usa ka labor organization naay managerial or supervisory employee members.
They
are
just deemed automatically removed from the list of union and such inclusion is not
a ground for cancellation of
registration.
BAR QUESTIONS: (set 6 no. 1)
Can an employer legally oppose the inclusion of confidential employees in the bargaining unit of rank and file
employees?
Answer:
Yes.
BAR QUESTIONS: (set 6 no. 2)
Would your answer be different if the confidential employees are sought to be included in the supervisory union?
Answer:
Yes, the employer has the personality to oppose the inclusion of confidential employees in the bargaining unit
to rank and file employees
Take note that not all confidential employees are prohibited from joining a labor organization. Only those
confidential employees who have necessary access to labor relation policies and information are prohibited from
joining a labor organization. If access is only to confidential information on business stand point, they are not
disqualified. However, there inclusion is not a ground for cancellation of registration, such employees are deemed
automatically remove from the list of the members of the union.
BAR QUESTIONS: (set 6 no. 3)
A supervisors union filed a petition for certification election to determine the exclusive bargaining representative of
the supervisory employees of Farmers Bank. Included in the list of supervisory employees attached to the petition
are the Department Managers, Brach Managers, Cashiers and Comptrollers. Farmers Bank questioned this list
arguing that Department Managers, Branch Managers, Cashiers and Comptrollers inherently possess the powers
enumerated in Art.212, par.(m) of the Labor Code, i.e., the power and prerogative to lay down and execute
management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees.
1. Is the contention of Farmers Bank Correct? Discuss fully. 1995
2. Is there any statutory basis for the petition of the union? Explain
Answer:
The contention of the employers is that these are managerial employees as defined in the Labor Code.
(Memorize the definition which contains functions; No need to determine fully if these employees perform
managerial functions. What is important is that in answering bar questions you can define and state the functions of
managerial employee.)
If these employees perform such functions as define under the labor code then they are managerial
employees & therefore they are prohibited from joining.
What is important is not the title but the functions performed by these employees. If such functions fall under
the definition provided by the labor code then they are considered managerial employees.
BAR QUESTIONS: (set 6 no. 4)
Samahan ng mga Manggagawa sa Companya ng Tobacco (SMCT) filed a petition for certification election among
the supervisory employees of the Tobacco Manufacturing Company before the NCR Regional Office of the DOLE.
It alleged, among other things, that it is a legitimate labor organization, a duly chartered local of NAFLU; that
Tobacco is an organized establishment; and that no certification election has been conducted within one year prior
to the filing of its petition for certification election.
The petition filed by SMCT showed that out of its 50 members, 15 were rank and files and 2 were managers.
Tobacco filed a motion to dismiss on the ground that SMCT union is composed of supervisory and rank and
file employees and therefore, cannot act as bargaining agent for the proposed unit.

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SMCT filed an opposition to the said Motion alleging that the infirmity, if any, in the membership of the union
can be remedied in the pre-election conference thru the exclusion-inclusion proceedings wherein those employees
who are occupying rank and file positions will be excluded from the list of eligible voters.
a) Should the motion to dismiss filed by the Tobacco be granted or denied?
b) Can the 2 managers be part of the bargaining unit? Why?
Answer:
1. Under the new law, the inclusion of such employees is no longer a hindrance to proceed with
certification election. They are just deemed removed from the list. Unless upon removal of the list it
will result to a reduction of the 20% support of the bargaining unit. If such removal would result to
reduction of 20 % then they are not qualified as an independent labor organization.
2. No. If they perform functions defined under the law for managerial employees, they cannot be
considered as part of the bargaining unit because managerial employees are not eligible to join a
labor organization
BAR QUESTIONS: (set 6 no. 5)
Who are the managerial, supervisory and rank and file employees?
Answer:
Managerial employee is one who is vested with the powers or prerogatives to lay down and execute
management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees.
Supervisory employees are 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. All employees not falling within any of the above definitions are considered rank-and-file employees
BAR QUESTIONS: (set 6 no. 6)
Distinguish the rights of managerial employees from members of a managerial staff.
Answer:
Managerial employees have no collective bargaining rights. They cannot join, form, assist in any labor
organization but there is no prohibition with respect to officers, members of a managerial staff.
BAR QUESTIONS: (set 6 no. 7)
Distinguish Managerial Employees from Supervisory Employees.
Answer:
"Managerial Employee" refers to an employee who is vested with powers or prerogatives to lay down and
execute management policies or to hire, transfer, suspend, layoff, recall, discharge, assign or discipline employees.
Supervisory Employee" refers to an employee who, in the interest of the employer, effectively recommends
managerial actions and the exercise of such authority is not merely routinary or clerical but requires the use of
independent judgment.
Managerial employees cannot join, assist or form a labor organization but supervisory
employees can join on their own separate from rank and file.
BAR QUESTIONS: (set 6 no. 8)
The labor code treats differently in various aspects the employment of (i) managerial employees, (ii) supervisory
employees, and (iii) rank and file employees. State the basic distinguishing features of each employee.
Answer:
Managerial employee is one who is vested with the powers or prerogatives to lay down and execute
management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees.
Supervisory employees are 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. All employees not falling within any of the above definitions are considered rank-and-file employees
BAR QUESTIONS: (set 6 no. 9)
Malou is the Executive Secretary of the Senior Vice-president of a bank while Ana is the Legal secretary of the
banks lawyer. They and other executive secretaries would like to join the union of rank and file employees of the
bank. Are they eligible to join the union? Why? Explain briefly.
Answer:

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Malou and Anna are confidential employees. Granting that they are all confidential employees, it does not
mean that they are not eligible to join a labor organization.
Only confidential employees who act in a confidential capacity to persons who formulate, determine or
effectuate management policies in the field labor management relations are not eligible to join, assist or form labor
organization.
In this case Anna is not eligible; she is the secretary of the banks lawyer. Why? Its the lawyer who
determines, formulate or effectuate policies in the field of labor management relations.
Malou as Executive secretary of the VP of the bank is more on the business stand point.
BAR QUESTIONS: (set 6 no. 10)
Do workers have a right not to join a labor organization
Do the following workers have the right to self-organization?
a) Employees of non-stock, non-profit organization?
b) Alien employees?
Answer:
Yes. It is his constitutional right. However such right is subject to condition that the same should not be for
purposes contrary to law.
However if there is a union security clause, then it is mandatory unless under exemptions provided by law
such as members of religious sect prohibited from joining labor organization.
a) The Labor Code allows all persons employed in commercial, industrial and agricultural enterprises to form,
join and assist labor organization of their own choosing for purposes collective bargaining. This right is
extended even to those employed in traditionally non- profit organization like religious, charitable, medical or
educational institutions.
b) Yes, if the alien has valid working permit and is a national of country that grants the same rights to Filipino
nationals as certified by DFA.
BAR QUESTIONS: (set 6 no. 11)
A, an employee of XYZ cooperative owns 500 shares in the cooperative. He has been asked to join the XYZ
Cooperative Employees Association. He seeks your advice on whether he can join the association. What advice
will you give to him?
Answer:
Yes, A can join because it is only a workers association. There prohibition of employee member of cooperative
is for membership of a labor organization only. The same is not extended to workers association, because labor
organization exist among others for purposes of collective bargaining which is not present in workers association.
BAR QUESTIONS: (set 6 no. 12)
True or False: All confidential employees are disqualified to unionize for the purpose of collective bargaining.
Answer:
False. Not all, only confidential employees who acted in confidential capacity to person or have access to
confidential policies in labor management relations.
BAR QUESTIONS: (set 6 no. 13)
Company XYZ has two recognized labor unions, one for its rank and file employees (RFLU) and one for
supervisory employees (SELU). Of late, the company instituted a restructuring program by virtue of which A, a
rank and file employee and officer of RFLU was promoted to a supervisory position along with 4 other colleagues
also active union members and/or officers. Labor Union KMJ, a rival union seeking recognition as the rank and file
bargaining agent, filed a petition for the cancellation of the registration of RFLU on the ground that A and her
colleagues have remained to be members of RFLU. Is the petition meritorious?
Answer:
No! It is not a ground for cancellation registration they are just deemed removed from the list.
BAR QUESTIONS: (set 6 no. 14)
The existing collective bargaining unit in Company X includes some fifty secretaries and clerks who routinely
record and monitor reports required by their department heads. Believing that these secretaries and clerks should
not be union members because of the confidential nature of their work, the management discontinued deducting
union dues from their salaries. Is the managements action legal?
a) No, only managers are prohibited from joining unions: the law does not bar confidential employees from
joining unions

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b) No, confidential employees are those who assist persons who formulate, determine or enforce
management policies in the field of labor relations
c) Yes, secretaries and clerks of company executives are extensions of the management and, therefore should
not join the union
d) No, confidential employees are those who handle executive records and payroll or serve as executive
secretaries of top-level managers.

BAR QUESTIONS: (set 6 no. 15)


A group of 15 regular rank and file employees of Bay Resort formed and registered an independent union. On
hearing of this, the management called the officers to check who the union members were. It turned out that the
members included the probationary staff, casuals, and the employees of the landscape contractor. The
management contends that inclusion of non-regulars and employees of a contractor makes the unions
composition inappropriate and its registration invalid. Is this correct?
a. Yes, union membership should be continued to direct-hired employees of the company
b. Yes, the community of interest criterion should be observed not only in the composition of a bargaining unit
but also in the membership of a union
c. Yes, a union must have community of interest; the non-regulars do not have such interest
d. No, union membership may include non-regulars since it differs from membership in a bargaining unit
BAR QUESTIONS: (set 6 no. 16)
Which phrase most accurately completes the statement Members of cooperatives:
a. Can invoke the right to collective bargaining because it is a fundamental right under the constitution
b. Can invoke the right to collective bargaining because they are permitted by law
c. Cannot invoke the right to collective bargaining because each member is considered owner
d. Cannot invoke the right to collective bargaining because they are expressly prohibited by law

Art. 253. Right of employees in the public service.


Employees of government corporations established under the Corporation Code shall have the right
to organize and to bargain collectively with their respective employers. All other employees in the civil service
shall have the right to form associations for purposes not contrary to law.
Rights of Employees in the Public Service - EO 180
EXECUTIVE ORDER NO. 180 June 1, 1987
Providing Guidelines for the Exercise of the right to Organize of Government Employees, Creating a Public Sector
Labor-Management Council and for Other Purposes
In accordance with the provisions of the 1987 Constitution, I Corazon C. Aquino, President of the Philippines,
do hereby order:
I.COVERAGE
Sec.1
This Executive Order applies to all employees of all branches, subdivisions, instrumentalities, and agencies of
the Government, including government-owned or controlled corporations with original charters. For this purpose,
employees, covered by this Executive Order shall be referred to as Government Employees
Sec.2
All government employees can form, join or assist employees organizations of their own choosing for the
furtherance and protection of their interests, they can also form, in conjunction with appropriate government
authorities, labor-management committees, works council and other forms of workers participation schemes to
achieve the same objectives.
Sec. 3
High-level employees, whose functions are normally considered as policy-making or managerial or whose
duties area of highly confidential nature shall not be eligible to join the organization of rank and file government
employees
Sec.4
The Executive Order shall not apply to the members of the Armed Forces of the Philippines, including police
officers, policemen, firemen, and jail guards.
II. Protection of the Right to Organize
Sec. 5

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Government employees shall not be discriminated against in respect of their employment by reason of their
membership in employees organization or participation in the normal activities of their organization. Their employment
shall not be subject to the condition that they shall not join or shall relinquish their membership in the employees
organizations.
Sec.6
Government authorities shall not interfere in the establishment, functioning or administration of government
employees organization through acts designed to place such organizations under the control of government authority.
III. Registration of Employees Organization
Sec. 7
Government employees organization shall register with the Civil Service Commission and the Department of
Labor and Employment. The application shall be filed with the Bureau of Labor Relations of the Department which
shall process the same in accordance with the provisions of the Labor Code of the Philippines, as amended.
Applications may also be filed with the regional offices of the Department of Labor and Employment which shall
immediately transmit the said applications to the Bureau of Labor Relations within three (3) days from receipt thereof.
Sec.8
Upon approval of the application, a registration certificate be issued to the organization recognizing it as a
legitimate employees organization with the right to represent its members and undertake activities to further and
defend its interest. The corresponding certificates of registration shall be jointly approved by the Chairman of the Civil
Service Commission and Secretary of Labor and Employment.
IV. Sole and Exclusive Employees Representatives
Sec.9
The appropriate organizational unit shall be the employers unit consisting of rank and file employees unless
circumstances otherwise require.
Sec.10
The duly registered employees organization having the support of the majority of the employees in the
appropriate organizational unit shall be designated as the sole and exclusive representative of the employees.
Sec. 11
A duly registered employees organization shall be accorded voluntary recognition upon a showing that no
other employees organization is registered or seeking registration, based on records of the Bureau of Labor
Relations, and that the said organizations has the majority support of the rank-and-file employees in the
organizational unit.
Sec. 12
Where there are two or more duly registered employees organizations in the appropriate organizational unit,
the Bureau of Labor Relations shall, upon petition, order the conduct of a certification election and shall certify the
winner as the exclusive representative of the rank-and-file employees in said organization unit.
V. Terms and Conditions of Employment in Government Services
Sec.13
Terms and conditions of employment or improvements thereof, except those that are fixed by law, may be
the subject of negotiations between duly recognized employees organizations and appropriate government
authorities.
VI. Peaceful Concerted Activities and Strikes
Sec.14
The Civil Service laws and rules governing concerted activities and strikes in the government service shall be
observed, subject to any legislation that may be enacted by Congress.
VII. Public Sector Labor-Management Council
Sec.15
A Public Sector Labor Management Council, hereinafter referred to as the Council, is hereby constituted to
be composed of the following:
1) Chairman, Civil Service Commission Chairman
2) Secretary, Department of Labor and Employment Vice Chairman
3) Secretary, Department of Finance Member
4) Secretary, Department of Justice Member
5) Secretary, Department of Budget and Management Member
The Council shall implement and administer the provisions of this Executive Order. For this purpose, the Council shall
promulgate the necessary rules and regulations to implement this Executive Order.

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VIII. Settlement of Disputes

Sec.16
The Civil Service and labor laws and procedures, whenever applicable, shall be followed in the resolution of
complaints, grievances and cases involving government employees, In case any dispute remains unresolved after
exhausting all the available remedies under existing laws and procedures, the parties may jointly refer the dispute to
the Council, for appropriate action.
IX. Effectivity
Sec.17
This Executive Order shall take effect immediately.
Done in the City of Manila, this 1st day of June, in the year of Our Lord, nineteen hundred and eighty-seven.
Notes:

(Distinguish govt. employees covered by the labor code and those covered by the civil service laws.)
Employees of government-owned and/or controlled corporations incorporated under the Corporation Code
are covered by The Labor Code.
Government employees and those employees of government-owned and/or controlled corporations with
original charters are covered by the Civil Service Law.

Right to self-organization in private sector vs. government employees


In the private sector, the right to self-organization includes the right to deal or negotiate with employers in
order to fix the terms and conditions of their employment and also to engage in concerted activities for the attainment
of their objective such as strikes, picketing and boycotts.
With respect to government employees, the right to self-organization is only for the furtherance and protection
of their interest.
Note:
E.O.180 applies to govt. employees covered by Civil Service Law. Government employees of GOCC w/out
original charter are not included in the coverage of E.O. 180 for they are covered by the Labor Code.
Private employees right to self-organization includes collective bargaining negotiations and engaging in
concerted activities.
These are not available to government employees because the terms and conditions of their employment are
fixed by law. Only those terms and conditions not otherwise fixed by law are allowed to be negotiated between the
employees organization and appropriate government authorities. Their remedy is to petition the congress (example:
increase their salary). Also, government employees are not allowed to strike (absolute rule)-No boycott, and no picket.
Take note of the following provisions of E.O 180:
Sec.1, 2, 3, 4(memorize), 5, 6, 7, 10, 11, 12, 13, 16
Again, terms and conditions fixed by law are non-negotiable & those which are not fixed by law can be negotiated.
Mass actions are considered as strike therefore prohibited to government employees.
BAR QUESTIONS: (set 6 no. 18)
Because of alleged unfair labor practice by the management of GFI System, a government-owned and controlled
financial corporation its employees walked out from their jobs and refused to return to work until the management
would grant their union official recognition and start negotiations with them.
The leaders of the walk-out were dismissed, and the other participants were suspended for sixty days. In
arguing their case before the Civil Service Commission, they cited the principle of social justice for workers and
the right to sel-organization and collective action, incliding the right to strike. They claimed that the constitution
shielded them from any penalty because their walk-out was a concerted action pursuant to their rights guaranteed
by the basic law
Is the position taken by the walk-out leaders and participants legally correct?
Answer:
No. Government employees cannot engage in concerted actions such as strikes. Walk out is a strike!
BAR QUESTIONS: (set 6 no. 18)
How does the government employees right to self-organization differ from that of the employees in the private
sector?
Answer:

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Government Employees right to self-organization is only for furtherance and protection of their own interest.
On the other hand, private sectors right to self-organization includes the right to collective bargaining negotiation and
to engage in concerted activities such as strikes, picketing and boycotts for the attainment of their objectives.
BAR QUESTIONS: (set 6 no. 19)
True or False: Government employees have the right to organize and join concerted mass actions without
incurring administrative liability.
Answer:
FALSE
BAR QUESTIONS: (set 6 no. 20)
Executive Order No.180, which protects government employees, does not apply to high-level employees namely:
a) Presidential appointees
b) Those performing policy determining functions, excluding confidential employees and supervisors
c) Confidential employees and those performing policy-determining functions
d) Elective officials
BAR QUESTIONS: (set 6 no. 21)
Government employees may elect a union as their exclusive representative but this right is not available to:
a) Regular employees in government instrumentalities and agencies
b) Employees of government-owned and controlled corporations without original charters
c) Employees of government-owned and controlled corporations with original charters
d) Employees of provincial and local government units

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September 20, 2014

Labor relations
Collective Bargaining and Administrative Agreement
(Part 1. Collective Bargaining Concept and Procedure)
Notes:
Collective bargaining agreement refers to a contract executed upon the request of either the employer or
the exclusive bargaining representative of the employees incorporating the agreement reached after negotiations with
respect to wages, hours of work and all other terms and conditions of employment, including proposals for adjusting
any grievances or questions under such agreement.
It covers the whole employment relationship and prescribes the rights and duties of the parties.
Collective bargaining includes 4 related distinguishable processes;
1. Negotiation between representatives of the management and the union over wages, hours of work and other
terms & conditions of employment.
2. The execution of a written contract embodying the terms agreed upon.
3. negotiation of any question arising as to the interpretation or application of the contract; and
4. Negotiation over the terms of a new contract or proposed modifications, when an existing agreement is validly
opened for negotiations.
Take Note:
Collective bargaining is a continuous process. Meaning it does not end upon the execution of an agreement.
It is a continuous process because any question arising from the interpretation or application of the contract is
part of the collective bargaining process.
[In other words, collective bargaining is not just about the execution of the CBA but it also includes its
interpretation and application.]
Parties to Collective Bargaining;
a) Employer;
b) Employees, represented by the exclusive bargaining representative in a bargaining unit.
As a rule, the employer will not negotiate with the individual employee. The employees have to be represented
by a legitimate labor organization which must be certified or recognized as the exclusive bargaining representative in a
bargaining unit.
Exclusive bargaining representative - refers to any legitimate labor organization duly recognized or certified as the
sole and exclusive bargaining agent of all the employees in a bargaining unit.
Jurisdictional Preconditions of Collective Bargaining:
1. Possession of the status of majority representation of 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; and
3. A demand to bargain

If the 3 jurisdictional preconditions are present, the collective bargaining should begin within the 12 months
following the determination and certification of the employees exclusive bargaining representative.

ART. 260 Procedure in Collective Bargaining


The following procedures shall be observed in collective bargaining:
a. When a party desires to negotiate an agreement, it shall serve a written notice upon the other party
with a statement of its proposals. The other party shall make a reply thereto not later than ten (10)
calendar days from receipt of such notice;
b. Should differences arise on the basis of such notice and reply, either party may request for a
conference which shall begin not later than ten (10) calendar days from the date of request.
c. If the dispute is not settled, the Board shall intervene upon request of either or both parties or at its
own initiative and immediately call the parties to conciliation meetings. The Board shall have the
power to issue subpoenas requiring the attendance of the parties to such meetings. It shall be the
duty of the parties to participate fully and promptly in the conciliation meetings the Board may call;
d. During the conciliation proceedings in the Board, the parties are prohibited from doing any act which
may disrupt or impede the early settlement of the disputes; and

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e. The Board shall exert all efforts to settle disputes amicably and encourage the parties to submit their
case to a voluntary arbitrator.
Notes:
Gen. Rule: The law gives primacy to free collective bargaining and allows the parties to device their bargaining
rules. This is because bargaining procedure is governed primarily by agreement of the parties. Thus, the procedure
under the labor code applies suppletorily only.
Absence of any procedure in collective bargaining agreed upon by the parties, Art. 260 of the labor code
apply.
Who must initiate the bargaining?
Under the law, (silent)
The obligation to initiate the proposal is not with the employer but with the employees represented by the
union/ legitimate labor organization certified as the exclusive bargaining representative.
Reasons:
- Because of the 3 jurisdictional preconditions; and
- Because the union has to prove majority representation.
As a rule, the employer has no duty to negotiate with a union that is not certified as the exclusive bargaining
representative.
Under the law, the other party has to make a counter-proposal. It is mandatory for the other party to submit its
counter-proposal. Such duty should not be neglected. Otherwise, it would tantamount to ULP.
Illustrative Cases:
DWU of Tacloban vs. Sec. of labor
While collective bargaining should be initiated by the union, there is a corresponding responsibility on the part
of the employer to respond in some manner to such acts. The court is not inclined to rule that there has been a
deadlock or an impasse in the collective bargaining process as there was no reasonable effort at good faith bargaining
on the part of the university.
Kiok Loy vs. NLRC,
As held in this case, a companys refusal to make a counter proposal if considered in relation to the entire
bargaining process may indicate bad faith and this is especially true where the unions request for a counter-proposal
is left unanswered. It is not obligatory upon either side of a labor controversy to precipitately accept or agree to the
proposals of the other. But an erring party should not be tolerated and allowed with impunity to resort to schemes
feigning negotiations by going through empty gestures.
Note:
Bargaining in good faith doesnt mean that there is a need to come up with an agreement. Parties may
bargain up to the point of deadlock, as long as they bargain in good faith.
Illustrative Case:
Rivera vs. Espiritu et. al
The union agreed to the suspension of the CBA for ten years to promote industrial peace and prevent the
PALs closure.
Employers may opt to close its business if it cannot meet the demands of the union. He just has to pay the separation
pay. The same happens to atlas mining in Toledo
Deadlock in case of good faith bargaining may be a ground for strike. If during the strike involving an industry
indispensable to national interest, the Sec. of Labor assumes jurisdiction or certify the same to NLRC for compulsory
arbitration. In the case of compulsory arbitration, the Sec. of Labor / NLRC will impose the CBA between parties.
Single Enterprise Bargaining (provided under the Labor Code)
- Bargaining with a single employer.
- The bargaining procedure is governed primarily by agreement of the parties. In the presence
of validly agreed procedure, the Labor Code procedure applies suppletorily only
However, D.O. 40-03 (Implementing Rules and Regulations) introduces Multi-employer Bargaining

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Multi Employer Bargaining


When a number of employers join forces for purpose of collective bargaining, the unit structure is described as
a multi employer bargaining unit.
Benefits of Multi- Employer Bargaining:
a. significant cost savings in negotiation of labor agreements (sharing among employers the expenses in
negotiation)
Procedure in Multi-Employer Bargaining (D.O. 40-03 Rule XVI Sec. 5-7)
Section 5. When multi-employer bargaining available.
A legitimate labor union(s) and employers may agree in writing to come together for the purpose of collective
bargaining, provided:
(a) Only legitimate labor unions who are incumbent exclusive bargaining agents may participate and
negotiate in multi-employer bargaining;
(b) Only employers with counterpart legitimate labor unions who are incumbent bargaining agents may
participate and negotiate in multi-employer bargaining; and
(c) Only those legitimate labor unions who pertain to employer units who consent to multi-employer
bargaining may participate in multi-employer bargaining.

Section 6. Procedure in Multi-employer Bargaining.


Multi-employer bargaining may be initiated by the labor unions or by the employers.
(a) Legitimate labor unions who desire to negotiate with their employers collectively shall execute a written
agreement among themselves, which shall contain the following:
1) The names of the labor unions who desire to avail of multi-employer bargaining;
2) each labor union in the employer unit;
3) The fact that each of the labor unions are the incumbent exclusive bargaining agents for their respective
employer units;
4) The duration of the collective bargaining agreements, if any, entered into by each labor union with their
respective employers.
Legitimate labor unions who are members of the same registered federation, national,
or industry
union are exempt from execution of this written agreement.
(b) The legitimate labor unions who desire to bargain with multi-employers shall send a written notice to this effect
to each employer concerned. The written agreement stated in the preceding paragraph, or the certificates of
registration of the federation, national, or industry union, shall accompany said notice.
Employers who agree to group themselves or use their existing associations to engage in multiemployer bargaining shall send a written notice to each of their counterpart legitimate labor unions indicating
their desire to engage in multi-employer bargaining. Said notice shall indicate the following:
1) The names of the employers who desire to avail of multi-employer bargaining;
2) Their corresponding legitimate labor organizations;
3) The fact that each corresponding legitimate union is any incumbent exclusive bargaining agent;
4) The duration of the current collective bargaining agreement, if any, entered into by each employer with
the counterpart legitimate labor union.
(c) Each employer or concerned labor union shall express its willingness or refusal to participate in multiemployer bargaining in writing, addressed to its corresponding exclusive bargaining agent or employer.
Negotiations may commence only with regard to respective employers and labor unions who consent to
participate in multi-employer bargaining;
(d) During the course of negotiations, consenting employers and the corresponding legitimate labor unions shall
discuss and agree on the following:
1) The manner by which negotiations shall proceed;
2) The scope and coverage of the negotiations and the agreement; and
3) Where appropriate, the effect of the negotiations on current agreements or conditions of employment
among the parties.

Section 7. Posting and registration of collective bargaining agreement.


Two (2) signed copies of collective bargaining agreement reached through multi-employer bargaining shall be
posted for at least five ( 5) days in two conspicuous areas in each workplace of the employer units concerned. Said
collective bargaining agreement shall affect only those employees in the bargaining units who have ratified it.
The same collective bargaining agreement shall be registered with the Department in accordance with Rule
XVII of D.O. No. 40-03.

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Two (2) situations where duty to bargain exists;


1. The duty to bargain when there is yet no CBA. (Art.261 & Art. 262 of the Labor Code)

Art. 261. Duty to bargain collectively in the absence of collective bargaining


agreements.
In the absence of an agreement or other voluntary arrangement
providing for a more expeditious manner of collective bargaining, it shall be
the duty of
employer and the representatives of the employees to bargain
collectively in accordance
with the provisions of this Code.
Art. 262. Meaning of duty to bargain collectively.
The duty to bargain collectively means the performance of a mutual
obligation to meet and convene promptly and expeditiously in good faith for
the purpose
of negotiating an agreement with respect to wages, hours of work
and all other terms and
conditions of employment including proposals for
adjusting
any
grievances
or
questions arising under such agreement and
executing a contract incorporating such
agreements if requested by either
party but such duty does not compel any party to agree to a
proposal or to
make any concession.

The duty to bargain means in essence the mutual obligation of the employer and the employees majority
union to meet and convene.

Purposes:
a. To negotiate an agreement on the subject of wages , hours of work, and all other terms and conditions of
employment including proposals for adjusting grievances or questions arising under such agreement
b. To execute a contract incorporating such agreement if requested by either party.
The kind of compliance required is prompt, expeditious and in good faith.
The limitations or reservations of the duty are that it does not compel any party to agree to a proposal or to
make a concession.
The duty to bargain collectively does not require the conclusion of CBA. Both parties may bargain up to the
point of deadlock. The same requires good faith bargaining.
2. The duty to bargain where a CBA exist (Art. 263)
Art. 263. Duty to bargain collectively when there exists a collective bargaining agreement.
When there is a collective bargaining agreement, the duty to bargain collectively shall also
mean that neither party shall terminate nor modify such agreement during its lifetime. However, either
party can serve a written notice to terminate or modify the agreement at least sixty (60) days prior to
its expiration date. It shall be the duty of both parties to keep the status quo and to continue in full
force and effect the terms and conditions of the existing agreement during the 60-day period and/or
until a new agreement is reached by the parties.
The duty to bargain collectively when a CBA exists means duty to meet and convene (ART. 261 & 262) and
additionally, the obligation not to terminate or modify the CBA during its lifetime.
To ask for modification of CBA, it must be only during the 60-day period prior to the CBAs expiration. During
the 60-day period, it is the duty of a party in collective bargaining to observe the terms and conditions of the
CBA until a new agreement is reached
Hold-over Principle
States that the CBA remains in full force and effect until a new agreement is reached.
Part of the duty to bargain collectively, that is, to observe the terms of the CBA
Terms of the CBA:
3 years-economic aspects
5 years representation aspects

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Illustrative Case:
PICOP vs. TAECA

This case pertains to the enforcement of the union security clause in an expired CBA under the hold-over
principle.
Ang sayop sa mga empleyado concerned in this case is that misigned sila ug authorization letter for
the filing of a petition for certification election of another union. The union considers such act as disloyalty. So
gitangtang sila sa union unja ni request ang union nga tanggalon sila sa trabaho pursuant to the union
security clause in an expired CBA. Gi dismiss sila sa ilang trabaho
Does the application of the hold-over principle proper?
No, the court ruled that the hold over principle applies only to the economic provisions of the CBA. It does not
include the representation aspect of the CBA.
Four (4) forms of ULP in Bargaining
1) Failure or refusal to meet and convene
To bargain in good faith, an employer must not only meet and confer with the union which represents
his employees, but also must recognize the union for the purpose of collective bargaining.
Note:
A petition for cancellation of union registration does not preclude collective
bargaining as the majority status of the union is not affected by the pendency of the
petition for
cancellation pending against it. In other words, petition for cancellation of
union registration is not a
bar for collective bargaining process.
Transfer of ownership;
Rule: If the transfer of assets and employees from one employer to another leaves intact the identity
of the employing enterprise, the transferors duty to recognize and bargain with an incumbent union
devolves upon the transferee as successor employer.
Mere change in ownership of a business is insufficient to alter a unions status as bargaining
representative.
The totality of the circumstances must be determined whether there has been a substantial
and material alteration in the employing enterprise, otherwise the new employer need not
bargain with the incumbent union.

The rule is different, however, where the buyer makes substantial nondiscriminatory personnel
changes and changes in the operational structure of the business. In such a case, he is not a
successor employer and need not recognized or bargain with the incumbent union.

Circumstances not deemed refusal to bargain:


a. adaptation of an unflexible bargaining position in good faith particularly where the company is
operating at a loss
b. refusal to bargain over demands for commission of unfair labor practices
c. refusal to bargain during period of illegal strike
d. when there is no request for bargaining
e. when the union seeks recognition for an inappropriately large unit
f. when the union seeks to represent persons who are excluded from law
g. when the union makes unlawful bargaining demands
Illustrative Case:
Standard vs. Confesor
If an employer interfere in the selection of union negotiators or coerces the union to exclude from its
panel of negotiators a representative of the union, and if it can be inferred that the employer adopted the said
act to yield adverse effects on the free exercise of the right to self-organization or on the right to collective
bargaining of the employees, U.L.P under Art. 248 (a) in connection with Art. 243 of the labor code are
committed.
2) Evading the Mandatory Subjects

What are the mandatory subjects of Collective Bargaining?


a. Wages;
b. hours of work;
c. All other terms and conditions of employment including proposals for adjusting grievances or
questions arising from such agreement.

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Examples of Mandatory Subjects:


1. wages and other types of compensation, including merit increases
2. working hours and working days, including work shifts
3. vacations and holidays
4. bonuses
5. pension and retirement plans
6. seniority
7. transfer
8. lay-offs
9. employee workloads
10. work rules and negotiations
11. rent of company houses
12. union security arrangements

Another mandatory subject that must be embodied in the CBA is a provision that deals on how to
settle in case of ambiguity, the terms and provisions of the CBA.(Grievance Machinery)
This is because collective bargaining is a continuous process and the same does not end
upon the execution of contract. It includes the settlement with respect to questions arising from such
agreement

There is no duty to agree even on mandatory subjects and the parties may bargain to the point of deadlock so
long as the same is in good faith.
3) Bargaining in Bad faith
Good faith bargaining demands more than sterile and repetitive discussion of formalities precluding
actual negotiation, more than formal replies which constitute in effect a refusal to treat with the union
and more than a willingness to enter upon a sterile discussion of union management differences. It
requires a sincere effort to reach agreement although it does not end with the negotiation of the
agreement.
Illustrative Case:
Samahang Manggagawa sa Top Form vs. NLRC
Bargaining in bad faith is considered U.L.P. But the same must be raised while the bargaining is in progress.
When the bargaining is finished and the CBA has been executed voluntarily by the parties , a charge in bargaining in
bad faith is too late and untenable as the CBA is proof enough that private respondent exerted reasonable effort in
good faith bargaining.
Forms of Bargaining in Bad Faith:
a) Surface Bargaining going through the motion of bargaining without any legal intention to reach
an agreement.
b) Blue Sky Bargaining making exaggerated or unreasonable proposals
c) Boulwarism bypassing the national negotiators in favor of a direct settlement dealings with
employees & local officials.
(Ibaligya sa kada-usa sa mga empleyado ang counter-proposal sa employer aron maoy mo
prevail over sa proposal sa union.) This is another form of bargaining in bad faith because in
bargaining, an employer must not deal with the individual employee but to the union certified as
the sole bargaining representative.
4) Gross violation of contract
Gross violation of Contract means the flagrant and malicious refusal to comply with the economic
provisions of the CBA.
(Again, registration is not necessary for the Validity of the CBA. It is only required for the Contract-bar
rule to apply.)
If the CBA is a product of an arbitral award, (compulsory arbitration) the posting requirement of the
CBA in two conspicuous places for five days does not apply.
Art. 264 Terms of a Collective Bargaining Agreement
Any Collective Bargaining Agreement that the parties may enter into shall, insofar as the
representation aspect is concerned, be for a term of five (5) years. No petition questioning the majority status
of the incumbent bargaining agent shall be entertained and no certification election shall be conducted by the

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Department of Labor and Employment outside of the sixty-day period immediately before the date of expiry of
such five-year term of the Collective Bargaining Agreement. All other provisions of the Collective Bargaining
Agreement shall be renegotiated not later than three (3) years after its execution.
Any agreement on such other provisions of the Collective Bargaining Agreement entered into within
six (6) months from the date of expiry of the term of such other provisions as fixed in such Collective
Bargaining Agreement, shall retroact to the day immediately following such date. If any such agreement is
entered into beyond six months, the parties shall agree on the duration of retroactivity thereof. In case of a
deadlock in the renegotiation of the Collective Bargaining Agreement, the parties may exercise their rights
under this Code.
Notes:
Representation Aspect refers to the identity and majority status of a union that negotiated the CBA as the
exclusive representative of the bargaining unit.
- 5 years (term)

Economic and non-economic aspects -3 years (term)

Substitutionary doctrine states that the employees cant revoke a validly executed CBA by simply changing their
bargaining agent. The new agent must respect the existing CBA until its expiration. However, they may negotiate for
the shortening thereof.
Effectivity & Retroactivity of the CBA
If the CBA is the very first for the bargaining unit, the parties have to decide it for themselves as to when the
CBA will take effect.

If the CBA is a renewal , renegotiated or modified, the following rules apply;


If the new CBA is concluded within six (6) months from the expiration of the old one, it shall retroact to
the day following its expiration date.
If the new CBA is concluded beyond six (6) months, the matter of retroaction and the possible
retroactive date are left to the parties. Absence of any agreement, the CBA will take effect on the first
day after the six-month period following the expiration of the last day of the CBA.

In case of a CBA as a result of an arbitral award;


If within six (6) months, the same rule applies
If beyond six (6) months, subject to the discretion of the Sec. of Labor
(Recent jurisprudence shows that the retroactivity/effectivity of a CBA resulting from an arbitral award
is left to the sound discretion of the Secretary of Labor/NLRC)

Illustrative Case:
Rivera vs. Espiritu
Suspension of the CBA for ten years.
The right to free collective bargaining, after all includes the right to suspend it.
Art. 265. Injunction Prohibited.
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 and 264 of
this Code
Notes:
No injunction policy: Injunctions or restraining orders are frowned upon as a matter of labor relations policy.
BAR QUESTIONS: (set 7 no. 1)
Company A and Union B had a 3-year CBA that expired on June 12, 1990. Negotiations proved futile so the
unresolved issues were referred to an Arbiter who rendered a decision on March 15, 1992 retroactive to
December 14, 1990. Is the Arbiters decision providing for retroactivity tenable or not? Why?
Answer:
Arbiters decision for retroactivity is tenable. As a rule, if a CBA is a result of an arbitral award and the same
was rendered beyond six months, its retroactivity is subject to the discretion of the Sec./NLRC/arbiter.
BAR QUESTIONS: (set 7 no. 2)
Company X, a transportation company, and union Y were in the process of negotiating a new Collective
Bargaining Agreement to replace the one which expired on March 15, 1990. The negotiations reached an impasse

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on economic issues on June 30, 1990. The Secretary of Labor assumed Jurisdiction over the dispute and certified
the same to the NLRC for proper disposition. Proceedings before the NLRC ended on November 30, 1990 and a
decision was rendered on December 15, 1990. The said decision made retroactive to March 15, 1990 the new
CBA containing the issues resolved by the NLRC, as well as those concluded and agreed upon by the parties prior
to their arriving at a deadlock in their negotiations. Company X questioned the retroactivity of the CBA alleging that
the same contravenes Art 253-A of the Labor Code, which provides for the automatic retroactivity of the renewed
CBA only if the same is entered into within six (6) months from its expiry date, and if not, the parties must agree on
the duration of retroactivity.
a. Is company Xs position correct?
b. Would your answer be different if the assumption of jurisdiction by the Secretary of Labor was at the request
or instance of Company X?
Answer: Same principle with No. 1. Latest jurisprudence provides that NLRC/sec. of labor has the discretion to
determine the effectivity of the CBA (beyond six months)
BAR QUESTIONS: (set 7 no. 3)
What is the automatic renewal clause in a collective bargaining agreement?
Answer:
Automatic renewal clause is the same with the hold over principle the duty to observe the terms and
conditions of the CBA even if the same has already expired until a new agreement is reached.
BAR QUESTIONS: (set 7 no. 4)
Company A and Union B negotiated the last two years of their five-year CBA on April1, 1990 to expire on March
31, 1992. Considering the amicable relations between the parties, neither one moved for the extension or
termination of the agreement.
Sometime in 1995, some disgruntled employees filed a complaint demanding that they be paid the annual
salary increases and other related annual increases specified in the CBA of April 1990, citing the provision in Art.253
of the Labor Code which requires the parties to keep the status quo and to continue in full force and effect the terms
and conditions of the existing agreement during the 60-day period and/or until a new agreement is reached by the
parties.
A, however, maintained that the annual salary increases and related benefits specifically provided for in the
CBA were pursuant to contract and law, effective only for the specified therein, namely, until March 31, 1992 only. Who
is correct? State the reason/s for your answer.
Answer: The union is correct-under the automatic renewal clause or the hold-over principle.
BAR QUESTIONS: (set 7 no. 5)
The CBA between the company and the rank and file union contained the following provision: Section 3. MEAL
ALLOWANCE. The company agrees to grant a MEAL ALLOWANCE of ten pesos (P10.00) to all employees who
render at least two (2) hours or more of actual overtime work on a workday, and FREE MEALS as presently
practiced, not exceeding P25.00 after 3 hours of actual overtime work.
Dispute in the interpretation of the above provision arose as the Company asserts that the phrase after 3
hours of actual overtime work does not mean after exactly 3 hours of actual overtime work; it means after more than
three hours of actual overtime work. The union, on the other hand, maintained that after 3 hours of actual overtime
work simply means after rendering exactly or no less than 3 hours of actual overtime work. Which interpretation do
you think should prevail? Why?
Answer:
Use Art 4 of the Labor Code doubts in the interpretation and implementation of the Labor Code and its
implementing rule and regulation, and contracts should be resolved in favor of labor. In this case, what is beneficial to
the employees shall prevail.
BAR QUESTIONS: (set 7 no. 6)
What jurisdictional preconditions must be present to set in motion the mechanics of a collective bargaining?
Answer:
1. Possession of the status of majority representation of 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; and
3. A demand to bargain

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BAR QUESTIONS: (set 7 no. 7)


The Ang Sarap Kainan Workers Union appointed Juan Javier, a law student, as bargaining representative. Mr.
Javier is neither an employee of Ang Sarap Kainan Company nor a member of the union. Is the appointment of Mr.
Javier as bargaining representative in accord with law?
Answer:
No. the appointment was not in accord with law. The representative of a union must be a member thereof.
BAR QUESTIONS: (set 7 no. 8)
What matters are considered mandatory subjects of collective bargaining?
Answer:
a. Wages;
b. hours of work;
c. All other terms and conditions of employment including proposals for adjusting grievances or questions
arising from such agreement; and
d. a provision that deals on how to settle in case of ambiguity, the terms and provisions of the CBA.
(Grievance Machinery)
BAR QUESTIONS: (set 7 no. 9)
Coronet Records Phil. (CRP) manufactures audio/video records players, compact discs, video discs, cassettes
and the like. CRPs shareholding is 40% foreign and 60% domestic. CRP signed a Collective Bargaining
Agreement (CBA) with its rank and file workers for three years starting from January 1, 1990 and ending on
December 31, 1993.
Before the expiration of the CBA, CRP decided to sell all its assets to Lyra Music Corporation effective
September 30, 1993. In this regard, notice was sent on August 30, 1993 to each employee advising them of the
sale of the Companys assets to Lyra Music Corporation and the closure of the companys operations effective
September 30, 1993. CRP, likewise, requested that each employee receive his separation pay equivalent to oneand one half months pay per year of service exclusive of all unused leaves which were also converted to cash
and his 13th-month pay for 1993.
The employees received their respective separation pay under protest and thereafter filed an action against
CRP and Lyra Music Corporation for unfair labor practice (ULP). The arbiter ruled in favor of the workers and
ordered Lyra Music Corporation to absorb the former workers of CRP. Was the labor arbiter correct in his
decision?
Answer:
This pertains to the transfer of business or change of employer. As a rule, if the new owner leaves intact the
identity of the enterprise no substantial change to its operational structure and personnel- then he is considered as
successor-employer who has the obligation to continue acknowledging the union certified as the exclusive bargaining
representative and to observe the existing CBA. But if there has been substantial change on the enterprise, then the
new employer has an obligation to recognize the union and the union has no right to impose the CBA against the new
employer
BAR QUESTIONS: (set 7 no. 10)
The Samahan ng mga Manggagawa sa Pids and Co. Inc. lost its majority status in the bargaining unit one year
after the signing of the Collective Bargaining Agreement. Bickering among all the three other unions in the
bargaining unit was a daily occurrence, with each union asserting majority status. To resolve this pestering
problem, the Company and the three other unions agreed to hold a consent election under the supervision of the
Bureau of Labor Relationos. In the consent elections, Pids and Co. Workers Union lost.
Shortly after the consent election, Pids and Co. Inc sold the Groceries Division to Metro Manila Grocery Inc.
The employees of the sold division formed part of the bargaining unit described in the Collective Bargaining
Agreement, and all were absorbed by Metro Manila Grocery Inc. Is Metro Manila Grocery Inc., as the new employer,
bound by the Collective Bargaining Agreement existing at the time of the sale? Explain.
Answer:
The new employer is not bound by the existing CBA if the sale does not leave intact the identity of the
enterprise.
BAR QUESTIONS: (set 7 no. 11)
Jenson and Jenson is a domestic corporation engaged in the manufacturing of consumer products. Its rank and
file workers organized the Jenson Employees Union, a duly registered local union affiliated with PAFLU, a national
union. After having been certified as the exclusive bargaining agent of the appropriate bargaining unit, JEU-PAFLU
submitted its proposals for a collective bargaining agreement with the company.

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In the meantime, a power struggle occurred within the national union PAFLU between its National President,
Manny Pakyao, and its National Secretary General, Gabriel Miro. The representation issue within PAFLU is
pending resolution before the Office of the secretary of labor.
By reason of this intra-union dispute within PAFLU, Jenson and Jenson obstinately and consistently refused to
offer any counter-proposal and to bargain collectively with JEU-PAFLU until the representation issue within PAFLU
shall have been resolved with finality. JEU-PAFLU filed a Notice of Strike. The Secretary of Labor subsequently
assumed jurisdiction over the labor dispute.
1. Will the representation issue that has arisen involving the national union PAFLU, to which the duly
registered local union JEU is affiliated, bar collective bargaining negotiation with Jenson and Jenson?
Explain briefly.
2. Can the Secretary of Labor decide the labor dispute by awarding the JEU CBA proposals as the Collective
Bargaining Agreement of the parties? Explain briefly.
Answer:
1. The intra-union dispute within PAFLU has to be resolved first before the employer has to give its counter proposal.
It is the officers of the union (mga tawo mismo, dili ang union) who will actually negotiate with the employer, thus the
representation issue within the union has to be settled first.
-

Note: A mere petition for cancellation of union registration is not a bar to collective bargaining
(naa pa ang personality sa union unless kung gi-cancel na ang registration.)

negotiation.

2. Yes, the Sec. of Labor has the power to award and impose a CBA
BAR QUESTIONS: (set 7 no. 12)
May a rank-and-file employee, who is not a member of the union representing his bargaining unit avail of the wage
increases which the union negotiated for its members?
Answer:
Yes, but such employee has to pay agency fees.
BAR QUESTIONS: (set 7 no. 13)
As Human Resource Department (HRD) manager of EZ Components, an unorganized manufacturer of electric
and electronic components for household appliances, you are suddenly confronted with demands for recognition
and collective bargaining negotiations from two competing labor unions. They both claim to represent all the rank
and file employees. Union A is led by moderate faction, while Union B is affiliated with a militant federation
identified with leftist ideology.
Which of the following courses of action should you take to best protect the interests of your company and
employees?
a) Recognize Union A as the rightful bargaining representative because it will be more reasonable to deal
with
b) Recognize Union B because you do not want to antagonize its leftist connections and foment inter-union
conflicts
c) Ignore the demands of either union since you cannot be compelled legally to deal with them at this stage
d) Petition the Bureau of Labor Relations to conduct a certification election to determine which union
really represents the majority of the employees in the appropriate bargaining unit
BAR QUESTIONS: (set 7 no. 14)
A group of employees in XYZ Factory belonging to a religious sect, in conformity with the teachings and dictates of
their religion, refused to join the labor union in the factory. The labor union was able to negotiate a substantial
wage increase in its collective bargaining agreement with management. A provision therein stated that the wage
increase would be paid to the members of the union only in view of a closed shop union security clause in the
new agreement. The members of the sect protested and demanded that the wage increase be extended to them.
The officers of the union countered by demanding their termination from the company pursuant to the closed
shop provision in the just-concluded CBA.
a) Is the CBA provision valid?
b) Should the company comply with the unions demand of terminating the members of the religious sect?
Answer:
a. Yes, a closed shop provision in CBA is valid
b. No. Members of the religious sect, who prohibits its members from joining a labor organization, cannot
be included in a union security clause- closed shop provision in a CBA.
BAR QUESTIONS: (set 7 no. 15)
Explain the automatic renewal clause of collective bargaining agreements.

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Answer:
Automatic renewal clause is the same with hold-over principle.
BAR QUESTIONS: (set 7 no. 16)
True or False: In the law on labor relations, the substitutionary doctrine prohibits a new collective bargaining agent
from repudiating an existing collective bargaining agreement.
Answer: True
BAR QUESTIONS: (set 7 no. 17)
The Company and Triple-X Union, the certified bargaining agent of rank and file employees, entered into a
Collective Bargaining Agreement (CBA) effective for the period January 1, 2002 to December 31, 2007.
For the 4th and 5th years of the CBA, the significant improvements in wages and other benefits obtained by the
Union were:
a) Salary increase of P1,000 and P 1,200 monthly, effective January 1, 2006 and January 1, 2007
respectively
b) Vacation leave and sick leave were adjusted from 12 days to 15 days annually for each employee
c) Medical subsidy of P3,000 per year for the purchase of medicines and hospitalization assistance of
P10,000 per year for actual hospital confinement
d) Rice subsidy of P600 per month, provided the employee has worked for at least 20 days within the
particular month; and
e) Birthday leave with pay and birthday gift of P1,500
As expected, on April 3, 2008, the union declared a deadlock. In the afternoon of the same day, management
issued a formal announcement in writing, posted on the bulletin board, that due to the CBA expiration on
December 31, 2007, all fringe benefits contained therein are considered withdrawn and can no longer be
implemented, effective immediately.
1. When was the freedom period referred to in the foregoing narration of facts? Explain.
2. After April 3, 2008, will a petition for certification election filed by another legitimate labor union
representing the rank and file employees legally prosper? Reasons.
3. Is the managements withdrawal of the fringe benefits valid?
4. If you were the lawyer for the union what legal course or action would you advise? Reason.
Answer:
1. Nov. 1 Dec. 30 or 60 days prior to Dec. 31, 2007
2. No. Contest on the majority status of an incumbent union is allowed only during freedom period.
3. No. Under the hold-over principle, fringe benefit should continue until a new agreement is reached.
4. File a notice of strike if there is already a bargaining deadlock.
BAR QUESTIONS: (set 7 no. 18)
Llanas Corporation and union X, the certified bargaining agent of its employees, concluded a CBA for the period
January 1, 2000 to December 31, 2004. But long before the CBA expired, members of union Y, the minority union,
showed dissatisfaction with the CBA under the belief that Union X was a company union. Agitated by its members,
union Y filed a petition for Certification Election on December 1, 2002. Will the petition prosper?
a) No, such a petition can only be filed within the freedom period of the CBA.
b) No, since a petition for certification election can be filed only upon the expiration of the CBA
c) Yes, a certification election is the right remedy for ousting a company union
d) Yes, employees should be allowed to cancel at the earliest opportunity a CBA that they believed was
obtained by a company union
BAR QUESTIONS: (set 7 no. 19)
The CBA for the period January 2007 to December 2009 granted the employees a P40 per day increase with the
understanding that it is creditable as compliance to any future wage order. Subsequently, the regional wage board
increased by P20 the minimum wage in the employers area beginning January 2008. The management claims
that the CBA increase may be considered compliance even if the wage order itself said that CBA increase is not
compliance even if the wage order itself said that CBA increase is not creditable as compliance to the Wage
Order. Is the managements claim valid?
a) Yes, since creditability of the CBA increase is the free and deliberate agreement and intention of the
parties
b) Yes, since the wage order cannot prejudice the managements vested interests in the provisions of the CBA
c) No, disallowing creditability of CBA pay increase is within the wage boards authority
d) No, the CBA increase and the Wage order are essentially different and are to be complied with separately
BAR QUESTIONS: (set 7 no.20)
The negotiating panels for the CBA of X Company established a rule that only employees of the company will seat
in each panel. In the next session, the management panel objected to the presence of the union counsel. Still the
negotiation proceeded. At the next season, the management panel again objected to the presence of the union
counsel as a non-observance of the no outsider rule. The negotiation nonetheless proceeded. Does the

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management panels objection to the presence of the union counsel constitute unfair labor practice through bad
Faith bargaining?
a) Yes the management is harping on a non-mandatory matter instead of proceeding with the mandatory
subjects of bargaining
b) No, there is no bargaining in bad faith since the bargaining proceeded anyway
c) Yes, the management panel has no legal basis for limiting the composition of the union negotiating panel
d) No, since it is the union that violates the ground rules fashioned by the parties, it is one negotiating in bad
faith.
BAR QUESTIONS: (set 7 no. 21)
On Aug. 1, 2008, Y, a Corporation engaged in the manufacture of textile garments, entered into a collective
bargaining agreement with Union X in representation of the rank and file employees of the corporation. The CBA
was effective up to June 20, 2011. The contract had an automatic renewal clause which would allow the
agreement after its expiry date to apply until both parties would have been able to execute a new agreement. On
May 10, 2011, union X submitted to Ys management their proposals for the negotiation of a new CBA.
The next day, Y suspended negotiations with Union X since Y had entered into a merger with Z, a corporation also
engaged in the manufacture of textile garments. Z assumed all the assets and liabilities of Y. Union X filed a
complaint with Regional Trial Court for specific performance and damages with a prayer for preliminary injunction
against Y and Z and Z filed a motion to Dismiss based on lack of jurisdiction. Rule on the Motion to Dismiss.
Answer:
Deny the motion to dismiss. RTC has jurisdiction. The issue can be resolved not by reference to the labor
code but by reference to obligations & contracts (civil code).
BAR QUESTIONS: (set 7 no. 22)
Differentiate surface bargaining from blue-sky bargaining.
Answer:
Surface bargaining refers to the act of going with the motion of bargaining without the intent to bargain while
blue-sky bargaining refers to the act of making unreasonable proposals.
BAR QUESTIONS: (set 7 no. 23)
ABC Company and U Labor Union have been negotiating for a new Collective Bargaining Agreement (CBA) but
failed to agree on certain economic provisions of the existing agreement. In the meantime, the existing CBA
expired. The company thereafter refused to pay the employees their midyear bonus, saying that the CBA which
provided for the grant of midyear bonus to all company employees had already expired. Are the employees
entitled to be paid their midyear bonus? Explain your answer.
Answer:
Yes, the midyear bonus must be paid, notwithstanding the expiration of the CBA, until a new agreement is
reached. (hold-over principle or automatic renewal clause)
BAR QUESTIONS: (set 7 no. 24)
Philippine Electric Company is engaged in electric power generation and distribution. It is a unionized company
with Kilusang Makatao as the union representing its rank and file employees. During the negotiations for their
expired collective bargaining agreement, the parties duly served their proposals and counter-proposals on one
another. The parties, however, failed to discuss the merits of their proposals and counter-proposals in any formal
negotiation meeting because their talks already bogged down on the negotiation ground rules, i.e., on the question
of how they would conduct their negotiations, particularly on whether to consider retirement as a negotiable issue.
Because of the continued impasse, the union went on strike. The Secretary of Labor immediately assumed
jurisdiction over the dispute to avert widespread electric power interruption in the country. After extensive
discussions and the filing of position papers before the National Conciliation and Mediation Board and before the
Secretary himself on the validity of the unions strike and on the wage and other economic issues including the
retirement issue, the DOLE Secretary ruled on the validity of the strike and on the disputed CBA issues and
ordered the parties to execute a CBA based on his rulings. Did the Secretary of labor exceed his jurisdiction when
he proceeded to rule on the parties CBA positions even though the parties did not fully negotiate on their own?
Answer:
No. The Sec. of labor did not exceed his jurisdiction. He/She has (always) the power to impose a CBA on the
Parties.
BAR QUESTIONS: (set 7 no. 25)
Samahang Tunay, a union of rank and file employees lost in a certification election at Solam Company and has
become a minority union. The majority union now has signed CBA with the company and the agreement contains
a maintenance of membership clause.

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What can Samahang Tunay still do within the company as a union considering that it has members who continue
to profess continued loyalty to it?
a) It can represent these members in grievance committee meetings
b) It can collect agency fees from its members within the bargaining unit
c) It can still demand meetings with the company on company time
d) As a legitimate labor organization, it can continue to represent its members on non-CBA-related matters
e) None of the above
BAR QUESTIONS: (set 7 no. 26)
Upon the expiration of the first 3 years of their CBA, the union and the company commenced negotiations. The
union demanded that the company continue to honor their 30-day union leave benefit under the CBA. The
company refused on the ground that the CBA had already expired, and the union had already consumed their
union leave under the CBA.
Who is correct?
a) The company is correct because the CBA has expired; hence it is no longer bound to provide union leave
b) The company is correct because the union has already consumed the allotted union leave under the
expired CBA
c) The union is correct because it is still the bargaining representative for the next 2 years
d) The union is correct because union leaves are part of the economic terms that continue to govern
until new terms are agreed upon.
e) They are both wrong
Collective Bargaining and Administration of Agreement
(Part 2. Employee Participation and Representation)
Art. 266 Exclusive Bargaining Representation and Workers Participation in policy and Decision-Making.
The labor organization designated or selected by the majority of the employees in an appropriate
collective bargaining unit shall be the exclusive representative of the employees in such unit for the purpose
of collective bargaining. However, an individual employee or group of employees shall have the right at any
time to present grievances to their employer.
Any provision of law to the contrary notwithstanding, workers shall have the right, subject to such
rules and regulations as the Secretary of Labor and Employment may promulgate, to participate in policy and
decision-making processes of the establishment where they are employed insofar as said processes will
directly affect their rights, benefits and welfare. For this purpose, workers and employers may form labormanagement councils: Provided, that the representatives of the workers in such labor-management councils
shall be elected by at least the majority of all employees in said establishment
Notes:
This article pertains to the democratic devices to advance the cause of industrial peace:
1. Collective bargaining with the employer by the unionized employees ( under Art. 266)
In relation to this, take note of the definition of Collective Bargaining Unit (CBU)
Collective Bargaining Unit (CBU)
refers to a group of employees sharing mutual interest within a given employer unit,
comprised of all or less than all of the entire body of employees in the employer unit or
any specific occupational or geographical grouping within such employer unit (D.O. 4003)
Note: The Formation of Bargaining Unit must be APPROPRIATE.

Meaning, it must be composed of constituents enjoying a community of interest, which is


reflected in group having substantial similarity of work and duties or similarity of
compensation and working conditions.

In the negotiation of the Collective Bargaining Agreement, the union who represents
employees must represent a collective bargaining unit, dili tanang empleyado sa usa ka kompanya.
empleyado sa usa ka kompanya grupohon sa gitawag og Collective
Bargaining Unit (CBU).
Every employee within the Collective Bargaining Unit (CBU) must enjoy community of
They must have similarity of work and duties and similarity of compensation and working conditions.
Popular Jurisprudence: U.P Case

92

the
Ang

mga

interest.

NOTES IN LABOR RELATIONS


-

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In this case, the court ruled that teaching personnel must compose a separate bargaining unit
from the non-teaching personnel. Dili sila pwede mag-uban og usa ka bargaining unit tungod kay
lahi-lahi sila og interest.

Subsidiaries or Corporations formed out of former division of a mother company following a bona fide
reorganization
may
constitute
a
separate
bargaining
unit.
2. Airing of grievances by an individual employee directly to the employer;
The presence of a union does not replace the individual employees right to pursue grievances. Each
employee retains their right to deal with his or her employer. The labor organization is a representative
of the collective employees, but this fact does not mean that an employee can act only through the
representative. However, the adjustment of the grievances must be consistent with the terms of the
current collective bargaining contract or agreement. Moreover, the bargaining representative must be
given the opportunity to be present at the meeting between the employer and employee.
3. Workers participation in the promulgation, policy and decision making process of the establishment where
they are employed insofar as said process will directly affect their rights, benefits and welfare. But it does not
mean participation in chartering corporate programs and policies.
This right may be exercised through a labor management council to be formed jointly by the
employer and the employees. In unionized establishments, the employees representatives to the
council shall be nominated by the exclusive bargaining representative. In non-unionized
establishments, the employees representatives shall be elected directly by the employees at
large.
Two Doctrines in the formation of a Bargaining Unit
a. Globe Doctrine; and
b. Community of interest rule
Globe Doctrine
o The express will or desire of the employees may consider in determining the appropriate
collective bargaining unit.
o The doctrine sanctions the holding of a series of elections not for the purpose of determining the
collective bargaining agent but for the specific purpose of permitting the employees in each of the
several categories to select the group which its chooses as the collective bargaining unit.
Community of Interest Rule
o The proper bargaining unit may be fixed on the basis of affinity and unity of the employees
interest such as substantial similarity of work and duties or similarity of compensation and working
conditions.
o [mao ni ang gi-follow sa atong labor law]
o ang mag comprise sa usa ka bargaining unit , kadtung mga empleyado who shares the same
interest, who have similarity of work and duties , similarity of compensation and working
conditions. Dili and Globe Doctrine. Dili ang empleyado maoy magbuot sa kung asa sila na
bargaining unit.
Bar Question (set 7 No.27)
What is an appropriate bargaining unit for purposes of collective bargaining?
Answer:
The appropriate bargaining unit must be composed of employees sharing the same interest such as similarity
of work and duties or similarity of compensation and working conditions.
Art. 267 Representation Issue In Organized Establishments
In organized establishments, when a verified petition questioning the majority status of the incumbent
bargaining agent is filed by any legitimate labor organization including a national union or federation which
has already issued a charter certificate to its local chapter participating in the certification election or a local
chapter which has been issued a charter certificate by a national union or federation before the Department of
Labor and Employment within the sixty-day period before the expiration of the collective bargaining
agreement, the Med-Arbiter shall automatically order an election by secret ballot when the verified petition is

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supported by the written consent of at least twenty-five percent (25%) of all the employees in the bargaining
unit to ascertain the will of the employees in the appropriate bargaining unit.
To have a valid election, at least a majority of all eligible voters in the unit must have cast their votes.
The labor union receiving the majority of the valid votes cast shall be certified as the exclusive bargaining
agent of all the workers in the unit.
When an election which provides for three or more choices results in no choice receiving a majority of
the valid votes cast, a run-off election shall be conducted between the labor unions receiving the two highest
number of votes: Provided, that the total number of votes for all contending unions is at least fifty percent
(50%) of the number of votes cast. In cases where the petition was filed by a national union or federation, it
shall not be required to disclose the names of the local chapters officers and members.
At the expiration of the freedom period, the employer shall continue to recognize the majority status of the
incumbent bargaining agent where no petition for certification election is filed.
Art. 268 Petitions in Organized Establishments
In any establishment where there is no certified bargaining agent, a certification election shall
automatically be conducted by the Med-Arbiter upon the filing of a petition by a legitimate labor organization,
including a national union or federation which has already issued a charter certificate to its local/chapter
participating in the certification election or a local/chapter which has been issued a charter certificate by the
national union or federation. In cases where the petition was filed by a national union or federation, it shall
not be required to disclose the names of the local chapters officers and members.
Art. 269 When an Employer May File Petition
When requested to bargain collectively, an employer may petition the Bureau for an election. If there is
no existing certified collective bargaining agreement in the unit, the Bureau shall, after hearing, order a
certification election.
All certification cases shall be decided within twenty (20) working days.
The Bureau shall conduct a certification election within twenty (20) days in accordance with the rules
and regulations prescribed by the Secretary of Labor.
Art. 270 Employer as Bystander
In all cases whether the petition for certification election is filed by an employer or a legitimate labor
organization, the employer shall not be considered a party thereto with a concomitant right to oppose a
petition for certification election. The employers participation in such proceedings shall be limited to: (1)
being notified or informed of petitions of such nature; and (2) submitting the list of employees during the preelection conference should the Med-arbiter act favorably on the petition.
Art. 271 Appeal from Certification Election Orders
Any party to an election may appeal the order or results of the election as determined by the MedArbiter directly to the Secretary of Labor and Employment on the ground that the rules and regulations or
parts thereof established by the Secretary of Labor and Employment for the conduct of the election have been
violated. Such appeal shall be decided within fifteen (15) calendar days
Notes:
To bargain with the employer, the employees in the Collective Bargaining Unit (CBU) can be represented by
one and only one union which has to be a legitimate labor organization duly designated or selected by the employees
in CBU.

The union that is duly selected or recognized is called the exclusive bargaining representative

Organized vs. non-organized establishment


Organized establishment
Refers to an enterprise where there are exists a recognized or certified sole and exclusive
bargaining agent
Unorganized establishment
Refers to an enterprise where no union has yet been duly recognized or certified as bargaining
representative.
Three (3) Methods in Determining the Exclusive Bargaining Representative;
a. voluntary recognition
b. certification election with or without a run off;
c.

consent election

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Note: [ang run-off election is ikog ra sa certification election. Dili siya ang ikatulo nga method]
A. Voluntary Recognition
Under D.O No. 40-03, a statement that the labor union is the ONLY legitimate labor organization
operating within the bargaining unit is required.
Thus, voluntary recognition is available only when in a bargaining unit; there is only legitimate labor
organization.
o

Query: Kintahay naay duha (2) ka legitimate labor organization, unja klaro kaajo na mas daghan
myembro ang usa, pwede ba ang voluntary recognition?
Answer: Dili, the law requires that there should only be one legitimate labor organization in

og
the

CBU.
o

Query: Kintahay sa usa ka bargaining unit, naay duha ka union, legitimate ang usa og dili
ang usa, pwede ba ang voluntary recognition?

legitimate

Answer: Yes, pwede. The law requires that there must be only one legitimate labor
organization in the bargaining unit.
Note: If two (2) legitimate labor organizations exist in a bargaining unit, the proper method
should be certification election.
Who will recognize the Bargaining Representative?
The employer

Note:
o

Notice of voluntary recognition must be submitted to the Regional Office which issued the recognized
labor unions certificate of registration or certificate of creation of chartered local within 30 days from
such recognition.

If the Notice of voluntary recognition is sufficient in form and substance and that no other registered
labor union is operating within the bargaining unit, the Regional Office within 10 days from receipt of
notice shall record the fact of voluntary recognition.

Where the notice of voluntary recognition is insufficient in form, number and substance, the Regional
Office shall, within the same period, notify the labor union of its findings and advise it to comply with
the necessary requirements. Where neither the employer nor the labor union failed to complete the
requirements for voluntary recognition under Section 2 of this Rule within thirty (30) days from receipt
of the advisory, the Regional Office shall return the notice for voluntary recognition together with all its
accompanying documents without prejudice to its re-submission.

Effect of recording of fact of voluntary recognition (D.O. 40-03 Rule VIII Sec. 4)
From the time of recording of voluntary recognition, the recognized labor union shall enjoy the rights,
privileges and obligations of an existing bargaining agent of all the employees in the bargaining unit.
Entry of voluntary recognition shall bar the filing of a petition for certification election by any labor organization
for a period of one (1) year from the date of entry of voluntary recognition. Upon expiration of this one-year
period, any legitimate labor organization may file a petition for certification election in the same bargaining unit
represented by the voluntarily recognized union, unless a collective bargaining agreement between the
employer and voluntarily recognized labor union was executed and registered with the Regional Office in
accordance with Rule XVII of these Rules
Significance of Recording the fact of Voluntary Recognition;
From the time of recording of voluntary recognition, the recognized labor union shall enjoy the right,
privileges and obligations of an existing bargaining agent of all the employees in the bargaining unit.

Entry of voluntary recognition shall BAR the filing of a petition for certification election by any labor
organization for a period of one (1) year from the date of entry of voluntary recognition.

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1-year Bar Rule applies protected ang status sa union within 1 year as the exclusive bargaining
representative; no other union shall be allowed to contest the status of the recognized union
within 1 year from entry of recognition.
If within 1 year from the date of entry of recognition, a CBA has been concluded and the same
was registered, the recognized union will be protected from any contests to its status as the
exclusive bargaining representative within five (5) years Contract Bar Rule applies.
(So, duha ka Bar ang mo-apply; ang 1-year Bar Rule og ang Contract-Bar
Rule. Pero mo-apply ra ang contract-Bar Rule kung naay CBA na mahimo within 1year from
recognition unja gi-register ang CBA.)

1-year Bar Rule vs. Contract Bar Rule:


Under the 1-year BAR Rule, contest to the status of the union as the exclusive bargaining representative may
be done after the lapse of one (1) year from the date of entry of voluntary recognition.
Under the Contract-Bar Rule, contest to the unions status as the exclusive bargaining representative may be
made during the freedom period.
Upon expiration of the one-year period (1-year Bar Rule), any legitimate labor organization may file a petition
for certification election in the same bargaining unit represented by the voluntarily recognized union, unless a
collective bargaining agreement between the employer and voluntarily recognize labor union was executed and
registered with the Regional Office in Accordance with Rule XVII of the Implementing Rules.
Points to remember in voluntary recognition;
a. only one (1) legitimate labor organization exist in the bargaining unit;
b. date of entry of voluntary recognition- for the One (1) year BAR RULE to apply;
c. Contract- Bar Rule only if CBA has been concluded within the 1-year period.
Terms to be used in referring the Exclusive Bargaining Representative;
a. Recognized exclusive bargaining representative - if the union was recognized through voluntary
recognition.
b. Certified exclusive Bargaining representative - if the union was selected as the exclusive bargaining
representative through certification election.
B. CERTIFICATION ELECTION
- A method in determining as to what particular union represents the majority of the employees in a
bargaining unit.
- Means the process of determining through secret ballot the sole and exclusive representative of the
employees in an appropriate bargaining unit for purposes of collective bargaining or negotiation.
Note:
In certification election, at least two (2) legitimate labor organizations are involved. However
choices should not be limited to the competing union. Some employees may not want to have a
union, thus, No Union is always included as one of the choices.
The certification election shall proceed even if there is no opposition.
WHO MAY FILE?
a. Any legitimate labor organization, including a national union or federation that has issued a charter
certificate to its chartered local or the local chapter itself may file a petition for certification election.
b. Employer
Query: Can an employer file a petition for certification election, considering that he is only a
bystander in a certification election?
Answer: Yes, but only when required to bargain collectively in a bargaining unit where no
registered collective bargaining agreement exists. Otherwise, the employer cannot file a
petition for certification election because an employer is merely a bystander.
Note:
In case where the petition was filed by a national union or federation, said labor organization shall not be
required to disclose the names of the officers and members of its local chapter.(gipangutana kuno ni sa BAR
exam)
Who has jurisdiction over Petition for Certification Election?
- Med-Arbiter (kauban ni sila sa lnter/intra-union disputes)
When to file petition for certification Election :
As to the question of when, we have to take note of the bars to the conduct of certification election.

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Election Bars;
a. 1-year Bar Rule (applicable to voluntary recognition and certification election)
i.
Voluntary Recognition
One (1) year from the entry of notice of voluntary recognition; no certification election
or petition for certification election shall be allowed.
ii.
Certification, consent, or run-off election
One (1) year from the date of a VALID certification, consent or run-off election; no
petition for certification shall be allowed.
Note:
In order to have a VALID certification election, at least majority of the eligible voters in the
bargaining unit must have cast their votes. (Kung dili majority, walay valid certification
election.)
Absence of a valid certification election, the 1-year bar rule will not apply.
b. Contract-Bar Rule
o When a CBA between the employer and a duly recognized or certified bargaining agent has
been registered, the petition for certification election may be filed only during the freedom
period, that is, within sixty (60) days prior to its expiry.
c. Deadlock-Bar Rule
o No. representation question shall 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.
o Deadlock must be resolved first before election or filing of petition thereof.
Note:
(Usually i-resolve ang deadlock thru imposition of a CBA by the NLRC or Sec. of Labor. Kung
naay CBA i-impose, contract-bar rule napud ang mo-apply. Saw-on sa Contract-bar rule ang
Deadlock bar rule)

Action on the Petition;


- After the filing of the petition, a preliminary conference shall be held by the Med-arbiter.
- Under such conference, the employer is notified but because he is only a bystander, he cannot
oppose the conduct of certification election or appeal the med-arbiters order relative thereto.
- If at the preliminary conference the unions agree to hold a consent election, then the petition for
certification election will no longer be heard and the unions will instead prepare for the consent
election.
- If the petition for certification election is denied, it shall be appealed to sec. of labor, within 10 calendar
days.
Note:
Denial or grant of the petition for certification election is appealable to the Sec. of Labor. Never
appealable, however, is the approval in an unorganized establishment.
Illustration:
Organized establishment appealable (10 days) denial and grant of Petition for Certification
Election
Unorganized establishment appealable (10 days) denial of Petition for Certification Election only
Procedure:
After the preliminary conference is the hearing of the petition
If the unions failed to agree to a consent election during the preliminary conference, the Med-arbiter shall
conduct a hearing.
Said hearing shall not exceed fifteen (15) days from the date of the scheduled preliminary conference.
Within ten (10) days from the last hearing, the Med-arbiter shall issue a formal order denying or granting
the petition.
In organized establishments, no decision or order granting or denying the petition shall be issued during
the freedom period. - Only after the lapse of the freedom period.
The petition can be denied or granted.
Grounds for the denial;

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a) Lack of employer-employee relationship;


b) The petitioning union is NOT a legitimate labor organization;
Note:
o Mere filing of a petition for cancellation of unions registration is not a ground to suspend the
conduct of certification election. A petition to cancel union registration is not a prejudicial question.
Only a final order of cancellation of unions registration may cause the denial of petition for
certification election.
o Also, the legitimacy of the union cannot be question thru petition for certification election because
the legitimacy of the union cannot be attacked collaterally.
o A case of unfair labor practice is not a prejudicial question to the conduct of certification election.
c) Election Bars ;( 1-year bar Rule, contract-Bar Rule and Deadlock Bar Rule)
d) Lack of 25% support to the petition
Under the law, in case of an organized establishment, there must be 25% support requirement for
the filing of petition for certification election.
In deciding whether the 25% requirement is applicable or not, the law consider the collective
bargaining unit involved, not the whole enterprise.
(Written support to the petition by the members of the bargaining unit)
Note:
The 25% support requirement is applicable only to organized establishments
and
not to unorganized establishments.
Effect of Withdrawal of Signatories:
As a rule, in an organized establishment, the petition for certification election must be supported by at least
twenty-five percent (25%) of the bargaining unit.
Query: What will happen if there is withdrawal of signature/signatories?
Answer: If the withdrawal was before the filing of the petition for certification election, the same is presumed
to be voluntary because the names of employees supporting the petition are supposed to be held secret to
the opposite party. So, it will result to the dismissal of the petition.
However, if the withdrawal is after the filing of the petition for certification election, the same is
presumed to be procured through duress, coercion or for valuable consideration as the names of the
employees supporting the union become known to the opposite party since their names are attached to the
petition at the time of filing. So, it will not result to the dismissal of the petition.
Conduct of Certification Election;
Raffle of the Case: The case is raffled to an election officer who shall have control of the pre-election
conference and election proceedings.
Pre-election Conference: Before the conduct of the certification election, there shall be first a pre-election
conference.
Waiver of the right to be heard: Failure to attend the pre-election conference despite notice shall be
considered as a waiver to be present and to question or object to any of the agreements reached.
However, they shall be furnished with the copy of the notice of subsequent pre-election conference.
Minutes of the Pre-Election Conference: The election officer shall keep the minutes of matters raised and
agreed upon during the pre-election conference which shall be acknowledged by the parties.
Posting of notice: The notice of election shall be posted at least ten (10) days before the actual date of the
election in two (2) conspicuous places in the company premises.
After the pre-election conference is the election proper.
Who are the voters in a Certification Election?
All employees who are members of the appropriate bargaining unit sought to be represented by the petitioner
at the time of the issuance of the order granting the conduct of a certification election.
A dismissed employee is considered a qualified voter if the legality of his dismissal has been contested in
forum of appropriate jurisdiction at the time of the issuance of the order for the conduct of a certification
election. However, if the dismissal is declared valid in a final judgment at the time of the conduct of the
certification election, said employee is disqualified.
Note:

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The law makes no distinction as to the employment status as basis for eligibility in voting. (So,
casual, regular, project, probationary, etc. Pwede siya mo-vote sa
certification election basta
miyembro siya sa bargaining unit.)
Illustrative Case:
Reyes vs. Trajano
Members of Iglesia Ni Kristo who did not join a labor union can vote. This is because union
membership is not a prerequisite to vote.
Only the employees who are directly employed by the employer and working along the activities
to which the employer is engaged and linked by employer-employee relationship are qualified to
participate in certification election irrespective of the period of their employment.

In case of disagreement over the voters list or over the eligibility of voters, all contested voters shall be allowed to
vote. But their votes shall be segregated and sealed in individual envelopes.

MANNER OF VOTING;
Secrecy of ballot the election officer, together with the representatives of the unions and the employer shall
inspect the polling place the ballot boxes and the polling booths
Marking of votes/ ballots
An authorized representative of the contending unions or the employer may challenge a vote before it is
deposited to the ballot box on the ground that there is no employer-employee relationship between the voters
and the company or if the voter is not a member of the appropriate bargaining unit which the petitioner seeks
to represent.

When a vote is properly challenged, the election officer shall place the ballot in a sealed envelope. The envelope
shall be opened and the question of eligibility shall be passed upon only if the number of the segregated votes will
materially alter the result of the election.
Any party-in-interest may file a protest based on the conduct or mechanics of the election. Such protest shall be
recorded in the minutes of the election proceedings. Protests not so raised are deemed waived. The protesting
party must formalize its protest with the Med- arbiter, with specific grounds, arguments and evidence, w/in 5 days
after the close of the election proceedings. If not recorded in the minutes and formalized within the prescribed
period, the protest shall be deemed dropped.

CANVASSING OF VOTES:
The voting shall close on the date and time agreed upon in the pre-election conference. Canvassing shall
immediately follow.
PROCLAMATION AND CERTIFICATION;
Note:
In order to have a valid election, at least a majority of all eligible voters in the must have cast their votes.
Where the number of votes cast in the election is less than the majority of the number of eligible voters, there
is a failure of election. A failure of election shall not bar the filing of a motion for the immediate holding of
another certification or consent election within six (6) months from date of declaration of failure of election.
WHO WINS IN THE CERTIFICATION ELECTION?
The union which obtained a MAJORITY OF THE VALID VOTES CAST.
Examples:
1) CBU 400 members
o In order to have a valid election, Majority of all eligible voters must cast their votes; that is,
members must cast their votes

201

2) CBU 300 members


o 170 cast their votes
o 130 valid
o 40 spoiled
Query: Was there a valid election?
Answer:
o Yes. Spoiled votes are included in determining the majority. In this case, only 151 members/votes are
required to have a valid election. 170 votes beyond majority.
Therefore, valid ang election. (Counted ang spoiled tungod kay mi cast man gihapon sila, spoiled
lang.)

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3) CBU 200 members


o 160 cast their votes
o 110 valid
o 30 Challenged (naay chance na ma-kwenta kung necessary siya sa results sa election.)
o 20 spoiled (walay chance na ma kwenta)
Query: Was there a valid election?
Answer:
Yes, because majority of the members have cast their votes. In determining the majority in order
to have a valid election, challenged & spoiled votes are counted.
4) CBU 200 members
o 160 cast their votes
o 90 valid
o 40 challenged
o 30 spoiled
Query: Was there a Valid Election?
Answer:
Yes, because majority of the members have cast their votes.
(Note: It is necessary to know whether there has been a valid election or not because the 1-year Bar Rule requires a
valid election for it to apply or operate.)
5) CBU 400 members
o 150 cast their votes
o 80 A
o 50 B
o 15 C
o 5 No Union
Query 1: Was there a Valid Election?
Answer:
No, because the majority requirement for a valid election was not met. (Failure of Election)
Query 2: Can Union A be declared as the winner?
Answer:
No, because there was a failure of election.
Query 3: Will the 1-year Bar Rule apply?
Answer:
No, because in order for the 1-year bar Rule to apply, the same requires a valid election.
6) CBU 200 members
o 180 cast their votes
o 80 A
o 60 B
o 25 C
o 15 No Union
Query 1: Was there a Valid Election
Answer:
Yes, because majority of the members have cast their votes.
Query 2: Can union A be certified as the exclusive bargaining representative?
Answer:
No, because it failed to meet the majority of the valid votes cast. For it to be certified as the
exclusive bargaining representative, it must have obtained at least 91 votes.
POINTS TO REMEMBER:
A.

Determining a Valid Election;

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B.

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Majority of the member must cast their votes.


spoiled and challenge votes are counted
Determining who wins the election;
Majority of the VALID Votes cast.
spoiled votes are never counted
Challenged votes MAY BE COUNTED if the same will materially alter the result of the
election.

7) CBU 300
o 180 cast their votes
o 60 A
o 20 B
o 100 No Union
Query 1: Was there a valid election?
Answer:
Yes, because majority of all eligible voters have cast their votes.
Query 2: Who wins the election?
Answer:
No Union.
RESULT:
No Union and no Collective bargaining negotiation for a period of at least one year. (1-year bar
rule applies)
8) CBU 400 members
o 250 cast their votes
o 150- -valid
o 50 challenge
o 50 spoiled
o 80 A
o 40 B
o 20 C
o 10 No Union
Query 1: Was there a Valid Election?
Answer:
Yes, there was a valid election.
Query 2: Can A be declared as the winner of the election?
Answer:
No, because it failed to meet the majority requirement.
In order to win the election the union must obtain at least 101 votes. [150(valid)+50(challenged) =
200, majority of 200 is 101]
Because the challenge votes will materially alter the result of the election, the same will be opened
and counted.
(Material ang 50 challenged votes tungod kay kung adto siya mapuno sa union A, 80+50=130 votes, pwede
modaog ang Union A.)
RUN-OFF ELECTION
When an election which provides for three (3) or more choices results in none of the contending unions
receiving a majority of the valid votes cast, and there are no objections or challenges which if sustained
can materially alter or results, the election officer shall motu proprio conduct a run-off election within 10
days from the close of the election proceedings between the labor union receiving the two highest number
of votes; provided that the total number of votes for all contending unions is at least fifty (50%) percent of
the number of votes cast.
Requisites:
a) a valid certification election which provides for 3 or more choices;
b) none of the contending unions receive a majority of the valid votes cast;
c) The total number of votes for all contending unions is at least 50% of the number of votes cast.

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Who wins in RunOff Election?


The union who receives the highest number of votes wins the election. (Plurality not Majority)
Said union shall be certified as the exclusive bargaining representative of the bargaining unit.
(Note:
Run-off election is only between the two unions who receive the highest number of votes.
No Union is not a choice in Run-off Election.)
C. CONSENT ELECTION
3rd method in determining which union will bargain with the employer.
Voluntarily agreed upon by the parties
No strict and complicated rules
May take place in an unorganized or organized establishment
o In hearing a petition for a certification election, the med-arbiter may persuade the contending unions
to agree to a consent election. If the unions do agree, the med-arbiter shall not issue an order calling
for the conduct of the certification election. Instead, he shall enter in the minutes of the hearing or
preliminary conference the fact of the agreement and then cause the immediate scheduling of the preelection conference. The minutes should be signed by the parties and attested to by the med-arbiter.
The med-arbiter shall immediately forward the records of the petitions to the Regional Director or
his/her authorized representative for the determination of the Election Officer who shall be chosen by
raffle in the presence of representative of the contending unions if they so desire.
o The first pre-election conference shall be scheduled within ten (10) days from the date of the consent
election agreement. Subsequent conferences may be called to expedite and facilitate the holding of
the consent election.
o To afford an individual employee-voter an informed choice where a local/chapter is the petitioning
union, the local/chapter shall secure its certificate of creation at least five working days before the date
of the consent election.
Effects of Consent Election: (D.O 40-03 Sec. 24)
Where a petition for certification election had been filed, and upon the intercession of the Med-Arbiter, the
parties agree to hold a consent election, the results thereof shall constitute a bar to the holding of a
certification election for one (1) year from the holding of such consent election. Where an appeal has been
filed from the results of the consent election, the running of the one-year period shall be suspended until the
decision on appeal has become final and executory.
Where no petition for certification election was filed but the parties themselves agreed to hold a consent
election with the intercession of the Regional Office, the results thereof shall constitute a bar to another
petition for certification election.
Bar Question (set 8 Nos.1-13)
Distinguish clearly but briefly between Consent election and certification election.
Answer:
Certification election means the process of determining through secret ballot the sole and exclusive
representative of the employees in an appropriate bargaining unit for purposes of collective bargaining or negotiation.
Consent election refers to the other method of determining which union will bargain with the employer. The difference
between the two is that a certification election is ordered by the DOLE while consent election is voluntarily agreed
upon by the parties with or without the intervention of the DOLE.
Can a No Union win in a certification election?
Answer:
Yes, if it obtains majority of the valid votes cast. The employees may choose not to be represented by anyone.
Distinguish between Certification election, Consent Election, and Run-off election.
Answer:
Certification election means the process of determining through secret ballot the sole and exclusive
representative of the employees in an appropriate bargaining unit for purposes of collective bargaining or negotiation
as ordered by the DOLE. Consent election refers to the other method of determining which union will bargain with the
employer thru voluntary agreement by the parties. Run-off election takes place between the unions who received the
two highest numbers of votes where not one of the unions obtained the majority of the valid votes cast, provided that
the total union votes is at least 50% of the votes cast.

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In what instance may a petition for certification election be filed outside the freedom period of a current collective
bargaining agreement?
Answer:
If there is an existing CBA, there is no way that a petition may be filed outside the freedom period. The same
should be filed within the freedom period unless there is no registered CBA.
Are Probationary employees entitled to vote in a certification election? Why?
Answer:
Yes, the law makes no distinction as to the employment status as basis for eligibility in voting.
When does a run-off election occur?
Answer:
A run-off election may proceed when:
a. There is a valid certification election which provides for 3 or more choices
b. That none of the contending unions receive a majority of the valid votes cast;
c. That the total number of votes for all contending unions is at least 50% number of votes cast.
Among the 400 regular rank and file workers of MNO company, a certification election was ordered conducted by
the med-arbiter of the region. The contending parties obtained the following votes:
a) Union A 70
b) Union B 71
c) Union C 42
d) Union D 33
e) No union 180
f) Spoiled Votes 4
There were no objections or challenges raised by any party on the results of the election.
a. Can Union B certified as the sole and exclusive collective bargaining agent among the rank and file
workers of MNO Company considering that it garnered the highest number of votes among the contending
unions? Why or why not?
b. May the management or lawyer of MNO Company legally ask for the absolute termination of the
certification election proceedings because 180 of the workers a clear plurality of the voters have
chosen not to be represented by any union? Reason.
c. If you were the duly designated election officer in this case, what would you do to effectively achieve the
purpose of certification election proceedings? Discuss.
Answer:
a. No, because it failed to meet the majority of the valid votes cast.
b. No, because employers are mere bystander in certification election.
c. Proceed to run-off election.
Llanas Corp. and Union X, the certified bargaining agent of its employees, concluded a CBA for the period
January 1, 2000 to December 31, 2004. But long before the CBA expired, members of union Y, the minority union
showed dissatisfaction with the CBA under the belief that Union X was a company Union. Agitated by its members,
union Y filed a petition for a Certification Election on December 1, 2002. Will the petition prosper?
a. No, such a petition can only be filed within the freedom period of the CBA
b. No, since a petition for certification can be filed only upon the expiration of the CBA
c. Yes, a certification is the right remedy for ousting a company union
d. Yes, employees should be allowed to cancel at the earliest opportunity a CBA that they believed was obtained
by a company union
Where the petition for a certification election in an unorganized establishment is filed by a federation, it shall not be
required to disclosed the
a. Names of the local chapters officers and members
b. Names and addresses of the federation officers
c. Names and number of employees that initiated the union formation in the enterprise
d. Names of the employees that sought assistance from the federation in creating the chapter
The following may file a petition for certification election except:
a. Employer
b. The legitimate labor organization
c. The federation on behalf of the chapter
d. The workers association

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The following are grounds to deny the Petition for Certification Election except:
a. The petitioning union is illegitimate or improperly registered
b. Non-appearance for two consecutive schedules before the med-arbiter by petitioning union
c. The inclusion of members outside the bargaining unit
d. Filed within an existing election bar
The modes of determining an exclusive bargaining representative are:
a. Voluntary recognition
b. Certification election
c. Consent election
Explain briefly how they differ from one another.
Answer:
Voluntary recognition is a mode of determining the exclusive bargaining representative which is available only
when in a bargaining unit, there is only legitimate labor organization. Certification election on the other hand means
the process of determining through secret ballot the sole and exclusive representative of the employees in an
appropriate bargaining unit for purposes of collective bargaining or negotiation as ordered by the DOLE. While
consent election refers to the other method of determining which union will bargain with the employer thru voluntary
agreement by the parties.
Puwersa, a labor federation, after having won in certification election held in the company premises, sent a letter
to respondent company reminding it of its obligation to recognize the local union. Respondent company replied
that though it is willing, the rank and file employees had already lost interest in joining the local union as they had
dissolved it. Puwersa argued that since it won in a certification election, it can validly perform its function as a
bargaining agent and represent the rank and file employees despite the unions dissolution.
Answer:
Puwersa was correct in its argument that since it won in a certification election, it can validly perform its
function as a bargaining agent because that is the result of winning in an election. However, it can no longer perform
its functions because it has been dissolved. The law requires that a union must be legitimate for it to become the
exclusive bargaining representative. Its personality must exist.
Article 272: GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION
The parties to a Collective Bargaining Agreement shall include therein provisions that will ensure the
mutual observance of its terms and conditions. They shall establish a machinery for the adjustment and
resolution of grievances arising from the interpretation or implementation of their Collective Bargaining
Agreement and those arising from the interpretation or enforcement of company personnel policies.
All grievances submitted to the grievance machinery which are not settled within seven (7) calendar days
from the date of its submission shall automatically be referred to voluntary arbitration prescribed in the
Collective Bargaining Agreement.
For this purpose, parties to a Collective Bargaining Agreement shall name and designate in advance a
Voluntary Arbitrator or panel of Voluntary Arbitrators, or include in the agreement a procedure for the
selection of such Voluntary Arbitrator or panel of Voluntary Arbitrators, preferably from the listing of qualified
Voluntary Arbitrators duly accredited by the Board. In case the parties fail to select a Voluntary Arbitrator or
panel of Voluntary Arbitrators, the Board shall designate the Voluntary Arbitrator or panel of Voluntary
Arbitrators, as may be necessary, pursuant to the selection procedure agreed upon in the Collective
Bargaining Agreement, which shall act with the same force and effect as if the Arbitrator or panel of
Arbitrators has been selected by the parties as described above.
Notes:
This article pertains to how the union and the employer are going to address grievances and questions arising
from the interpretation of the collective bargaining agreement and company personnel policies.
This is still part of the collective bargaining process because collective bargaining does not end with the
execution of the CBA. The duty to bargain continues up to the contract administration stage.
Grievance

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Refers to any question by either the employer or the union regarding the interpretation or application of
the collective bargaining agreement or company personnel policies or any claim by either party that the
other party is violating any provision of the CBA or company personnel policies.
Grievances are subject to grievance machinery.

Grievance machinery
This refers to the mechanism for the adjustment and resolution of grievances arising from the
interpretation and implementation of the CBA and those arising from interpretation or enforcement of
company personnel policies.
Again, this is part of the continuing process of the collective bargaining.
A CBA must contain a provision on grievance procedure or machinery because the same is mandatory. A
provision on grievance procedure/ machinery is one of the mandatory subjects of the CBA.
A provision on grievance procedure/machinery is a must provision required to all CBAs.
The grievance procedure provided in the CBA should be adhered to by the parties.
Failure or refusal to adhere to that procedure is ULP because grievance procedure is part of the
continuous process of collective bargaining.
Grievance Procedure
It refers to the internal rules of procedure established by the parties in their collective bargaining
agreement.
It refers to the system of grievance settlement as provided in the collective bargaining agreement. It
usually consists of successive steps starting from the level of complainant and his immediate supervisor
and ending when necessary at the level of the top union and company officials.
Voluntary Arbitration:
Refers to the contractual proceeding whereby the parties to any dispute or controversy, in order to obtain a
speedy and inexpensive final disposition of the matter involved, select a judge of their own choice and by
consent submit their controversy to him for determination.
Submission to Voluntary Arbitration: (D.O. 40-03 Rule XIX Sec.3)
Where the grievance remains unresolved by the grievance machinery, either party may serve notice upon the
other of its decision to submit the issue to voluntary arbitration. The notice shall state the issue or issues to be
arbitrated, copy thereof furnished the board or the voluntary arbitrator or panel of voluntary arbitrators named or
designated in the collective bargaining agreement.
If the party upon whom the notice is served fails or refuses to respond favorably within seven (7) days from
receipt thereof, the voluntary arbitrator or panel of voluntary arbitrators designated in the collective bargaining
agreement shall commence voluntary arbitration proceedings. Where the collective bargaining agreement does not so
designate, the board shall call the parties and appoint a voluntary arbitrator or panel of voluntary arbitrators, who shall
thereafter commence arbitration proceedings in accordance with the proceeding paragraph.
In instances where parties fail to select a voluntary arbitrator or panel of voluntary arbitrators, the regional
branch of the Board shall designate the voluntary arbitrator or panel of voluntary arbitrators, as may be necessary,
which shall have the same force and effect as if the parties have selected the arbitrator.
The parties to a CBA will decide on the number of arbitrators who may hear a dispute only when the need for
it arises.
Permanent Arbitrator vs. Ad Hoc Arbitrator
Permanent arbitrator refers to the voluntary arbitrator specifically named or designated in the CBA by the
parties as their voluntary arbitrator.
Ad hoc arbitrator refers to the voluntary arbitrator chosen by the parties in accordance with the established
procedures in the CBA or the one appointed by the NCMB in case there is a failure in the selection or in
case either of the parties of the CBA refuses to submit to voluntary arbitration.
Aricle 273: Jurisdiction of Voluntary Arbitrators or panel of Voluntary Arbitrators.
The Voluntary Arbitrator or panel of Voluntary Arbitrators shall have original and exclusive jurisdiction
to hear and decide all unresolved grievances arising from the interpretation or implementation of the
Collective Bargaining Agreement and those arising from the interpretation or enforcement of company
personnel policies referred to in the immediately preceding article. Accordingly, violations of a Collective
Bargaining Agreement, except those which are gross in character, shall no longer be treated as unfair labor
practice and shall be resolved as grievances under the Collective Bargaining Agreement. For purposes of this
article, gross violations of Collective Bargaining Agreement shall mean flagrant and/or malicious refusal to
comply with the economic provisions of such agreement.

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The Commission, its Regional Offices and the Regional Directors of the Department of Labor and
Employment shall not entertain disputes, grievances or matters under the exclusive and original jurisdiction
of the Voluntary Arbitrator or panel of Voluntary Arbitrators and shall immediately dispose and refer the same
to the Grievance Machinery or Voluntary Arbitration provided in the Collective Bargaining Agreement.
Article 274: Jurisdiction over other Labor Disputes.
The Voluntary Arbitrator or panel of Voluntary Arbitrators, upon agreement of the parties, shall also
hear and decide all other labor disputes including unfair labor practices and bargaining deadlocks.
Notes:
The above-stated articles enumerate the cases under the jurisdiction of the voluntary arbitrators or panel of
voluntary arbitrators, namely:
1. all unresolved grievances arising from the interpretation or implementation of the CBA
o Violations of the collective bargaining agreement are not ULP except when it is gross in character.
2. all unresolved grievances arising from the interpretation or enforcement of company personnel policies
o The voluntary arbitrators or panel of voluntary arbitrators have also jurisdiction to all other labor
disputes which are under the jurisdiction of the labor arbiter upon agreement of the parties.
3. Wage Distortion
o only in ORGANIZED ESTABLISHMENTS
4. All unresolved grievances arising from the interpretation and implementation of the productivity incentive
programs under R.A. No. 6971.
Take Note:
The voluntary arbitrator can acquire jurisdiction over the said disputed only when the following
conditions have been complied with;
a. the dispute must have been brought to the grievance machinery first for resolution;
b. the grievance machinery failed to resolved the dispute; and
c. The parties agree to submit the dispute for voluntary arbitration.
Illustrative Cases:
San Jose vs. NLRC ( G. R. No. 121227, Aug. 17,1998)
Sanyo Philippines vs. Caizares ( G. R. No. 101619, July 8 ,1992)

San Jose vs. NLRC


This case pertains to the money claims of an employee that arises from the collective bargaining
agreement. The money claims were filed before the labor arbiter because under Art. 217, money claims
are under the jurisdiction of the labor arbiter.
But the Supreme Court ruled that the labor arbiter has no jurisdiction over the money claims because its
jurisdiction over money claims is limited only to those arising from statutes or other contracts other than
the collective bargaining agreement. It is the voluntary arbitrator or panel of voluntary arbitrators who has
original and exclusive jurisdiction over money claims that arise from the interpretation or implementation of
the CBA and those arising from interpretation or enforcement of the company personnel policies.

[So kung ang basis sa money claim sa usa ka empleyado is ang CBA, the labor arbiter has no jurisdiction. The quasijudicial body that has jurisdiction over the said money claim is the voluntary arbitrator or panel of voluntary arbitrators]

Sanyo vs. Caizares


This case pertains to the enforcement of a union-security clause. The union demanded from the employer
the dismissal of the employees who have been separated from the union pursuant to a union-security
clause. The employees were dismissed. The dismissed employees filed a complaint for illegal dismissal.
The employer and the union moved to dismiss the case contending that the labor arbiter has no
jurisdiction over the issue because it is an enforcement of the union-security clause which is embodied in
the CBA, thus, jurisdiction is with the voluntary arbitrators.
But the Supreme Court ruled that it is the labor arbiter who has jurisdiction over the dispute because only
disputes involving the union and the company shall be referred to the grievance machinery or voluntary
arbitrator. However, in this case, ang empleyado og ang union kuyog sa company maoy nagkontra. So
mao nang walay jurisdiction ang voluntary arbitrator bisan pa og enforcement sa union-security clause
tungod kay ang company og ang union nagusa man as against the employees. Ang dalhon ra sa
voluntary arbitrator, kadto rang disputes na nagkontra ang union og ang company.

Company Personnel Policies

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These deal with matter affecting efficiency and well-being of employees and include among others the
procedure in the administration of wages, benefits, promotions, transfers, and other personnel movements which are
usually not spelled out in the CBA.
Termination of employment resulting from the enforcement of disciplinary rules and regulations fall under the
original and exclusive jurisdiction of the labor arbiter. This is because disciplinary rules and regulations are different
from company personnel policies.
Company personnel policies are non-punitive in character while disciplinary rules and regulations are punitive
in character.
How Voluntary Arbitration is initiated?
Voluntary arbitration may be initiated either by;
a. Submission Agreement;
b. Demand or Notice invoking a collective agreement arbitration clause
A. Submission Agreement:
o Unsa man kining Submission Agreement?
o Kanus-a pwede mo-exercise ang voluntary arbitrator sa ijang jurisdiction?
o Kanus-a magsugod ang voluntary arbitration?
Kadtong mga kaso na wala untay jurisdiction ang voluntary arbitrator kay adto sa labor arbiter but by
agreement of the parties, the same was heard by the voluntary arbitrator or panel of voluntary arbitrators,
dapat aduna nay submission agreement.
Before the voluntary arbitrator can exercise its jurisdiction, the same must have received first the
submission agreement; that is, the agreement signed by the parties to submit the case for voluntary
arbitration.
The jurisdiction of the voluntary arbitrator over the dispute is acquired upon receipt of the submission
agreement duly signed by the parties. Only when there is an express and specific agreement between the
parties can a voluntary arbitrator exercise jurisdiction over a particular dispute. No one can arrogate into
the powers of voluntary arbitrator the original and exclusive jurisdiction of the labor arbiter without an
express agreement between the parties.
B. Demand or Notice of Intent to Arbitrate
o This is the usual way of initiating voluntary arbitration involving rights dispute because CBAs are
required to provide for a grievance procedure and a voluntary arbitration clause with respect to
dispute arising from the application or interpretation of the agreement.
Extent of Arbitrators Authority:
In general, the arbitrator is expected to decide only those questions expressly stated and limited in the
submission agreement.
However, it has been ruled by the Supreme Court that the arbitrator can assume the necessary power to
make a final settlement of the controversy. Law and jurisprudence give the voluntary arbitrator enough leeway of
authority as well as adequate prerogative to accomplish the reason for which the law on voluntary arbitration was
created - that is, speedy labor justice.
In other words, kung tan-aw sa voluntary arbitrator na walay final settlement of the controversy na mahitabo
kung ang submitted issues ra ang ijang i-decide, pwede sija mo-rule sa mga issues na wala gi-submit for resolution
kung tan-aw sa arbitrator necessary sila for final settlement of the controversy.
With regards to those grievances falling under the exclusive and original jurisdiction of the voluntary arbitrator,
the arbitrators authority depends on the CBA. The power of the arbitrator should be specifically stated in the collective
bargaining agreement.
Article 275: PROCEDURES
The Voluntary Arbitrator or panel of Voluntary Arbitrators shall have the power to hold hearings,
receive evidences and take whatever action is necessary to resolve the issue or issues subject of the dispute,
including efforts to effect a voluntary settlement between parties.
All parties to the dispute shall be entitled to attend the arbitration proceedings. The attendance of any
third party or the exclusion of any witness from the proceedings shall be determined by the Voluntary
Arbitrator or panel of Voluntary Arbitrators. Hearing may be adjourned for cause or upon agreement by the
parties.
Unless the parties agree otherwise, it shall be mandatory for the Voluntary Arbitrator or panel of
Voluntary Arbitrators to render an award or decision within twenty (20) calendar days from the date of
submission of the dispute to voluntary arbitration.

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The award or decision of the Voluntary Arbitrator or panel of Voluntary Arbitrators shall contain the
facts and the law on which it is based. It shall be final and executory after ten (10) calendar days from receipt
of the copy of the award or decision by the parties.
Upon motion of any interested party, the Voluntary Arbitrator or panel of Voluntary Arbitrators or the
Labor Arbiter in the region where the movant resides, in case of the absence or incapacity of the Voluntary
Arbitrator or panel of Voluntary Arbitrators, for any reason, may issue a writ of execution requiring either the
sheriff of the Commission or regular courts or any public official whom the parties may designate in the
submission agreement to execute the final decision, order or award.
Notes:
The award or decision of the voluntary arbitrator or panel of voluntary arbitrators shall contain the facts and
the law from which it is based. It shall be final and executory after ten (10) calendar days from receipt of copy of the
award or decision by the parties.
Question: Is the decision of the voluntary arbitrators subject for a motion for reconsideration?
Answer: Yes.

Illustrative Case:
Teng vs. Pahagac
Facts:
Teng is engaged in deep sea fishing. In the operation of the business, it was alleged that he usually enters into
a joint-venture agreement with master-fishermen. These master-fishermen, according to Teng, were the one
responsible in hiring workers as checkers of fish caught in every fishing voyage.
Sometime in 2003, the workers filed a complaint for illegal dismissal against Teng. The voluntary arbitrators
ruled in favor of Teng. However, the C.A reversed the Voluntary arbitrators decision. Hence, this petition.
Issue:
WON the voluntary arbitrators decision is subject to a motion for reconsideration.
Held:
Yes. The court ruled that by categorical language of the law, the same does not preclude the filing of a
reconsideration of the voluntary arbitrators decision within the 10-day period. This is in accordance with the doctrine
of exhaustion of administrative remedies. The contrary provision in D.O. 40-03 clearly shows an invalid exercise of the
authority granted by the legislative to the Department of Labor as it tends to modify and improve the law. Such agency
should not go beyond the restrictions provided by law.
Teng vs. Pahagac (2010)
Decision of the voluntary arbitrator is subject to a motion for reconsideration.
Appeal from the decision of the voluntary arbitrator falls within the exclusive appellate jurisdiction of the Court
of Appeals. The mode of appeal is Rule 43.
STRIKES and LOCKOUTS
Article 277: Strikes, Picketing, and Lockouts
a. It is the policy of the State to encourage free trade unionism and free collective bargaining.
b. Workers shall have the right to engage in concerted activities for purposes of collective bargaining or
for their mutual benefit and protection. The right of legitimate labor organizations to strike and picket
and of employers to lockout, consistent with the national interest, shall continue to be recognized and
respected. However, no labor union may strike and no employer may declare a lockout on grounds
involving inter-union and intra-union disputes.
c. In cases of bargaining deadlocks, the duly certified or recognized bargaining agent may file a notice of
strike or the employer may file a notice of lockout with the Ministry at least 30 days before the
intended date thereof. In cases of unfair labor practice, the period of notice shall be 15 days and in the
absence of a duly certified or recognized bargaining agent, the notice of strike may be filed by any
legitimate labor organization in behalf of its members. However, in case of dismissal from employment
of union officers duly elected in accordance with the union constitution and by-laws, which may
constitute union busting, where the existence of the union is threatened, the 15-day cooling-off period
shall not apply and the union may take action immediately.

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d. The notice must be in accordance with such implementing rules and regulations as the Minister of
Labor and Employment may promulgate.
e. During the cooling-off period, it shall be the duty of the Ministry to exert all efforts at mediation and
conciliation to effect a voluntary settlement. Should the dispute remain unsettled until the lapse of the
requisite number of days from the mandatory filing of the notice, the labor union may strike or the
employer may declare a lockout.
f. A decision to declare a strike must be approved by a majority of the total union membership in the
bargaining unit concerned, obtained by secret ballot in meetings or referenda called for that purpose.
A decision to declare a lockout must be approved by a majority of the board of directors of the
corporation or association or of the partners in a partnership, obtained by secret ballot in a meeting
called for that purpose. The decision shall be valid for the duration of the dispute based on
substantially the same grounds considered when the strike or lockout vote was taken. The Ministry
may, at its own initiative or upon the request of any affected party, supervise the conduct of the secret
balloting. In every case, the union or the employer shall furnish the Ministry the results of the voting at
least seven days before the intended strike or lockout, subject to the cooling-off period herein
provided.
g. When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an
industry indispensable to the national interest, the Secretary of Labor and Employment may assume
jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory
arbitration. Such assumption or certification shall have the effect of automatically enjoining the
intended or impending strike or lockout as specified in the assumption or certification order. If one
has already taken place at the time of assumption or certification, all striking or locked out employees
shall immediately return-to-work and the employer shall immediately resume operations and readmit
all workers under the same terms and conditions prevailing before the strike or lockout. The Secretary
of Labor and Employment or the Commission may seek the assistance of law enforcement agencies
to ensure compliance with this provision as well as with such orders as he may issue to enforce the
same.
In line with the national concern for and the highest respect accorded to the right of patients to
life and health, strikes and lockouts in hospitals, clinics and similar medical institutions shall, to every
extent possible, be avoided, and all serious efforts, not only by labor and management but
government as well, be exhausted to substantially minimize, if not prevent, their adverse effects on
such life and health, through the exercise, however legitimate, by labor of its right to strike and by
management to lockout. In labor disputes adversely affecting the continued operation of such
hospitals, clinics or medical institutions, it shall be the duty of the striking union or locking-out
employer to provide and maintain an effective skeletal workforce of medical and other health
personnel, whose movement and services shall be unhampered and unrestricted, as are necessary to
insure the proper and adequate protection of the life and health of its patients, most especially
emergency cases, for the duration of the strike or lockout. In such cases, therefore, the Secretary of
Labor and Employment may immediately assume, within twenty four (24) hours from knowledge of the
occurrence of such a strike or lockout, jurisdiction over the same or certify it to the Commission for
compulsory arbitration. For this purpose, the contending parties are strictly enjoined to comply with
such orders, prohibitions and/or injunctions as are issued by the Secretary of Labor and Employment
or the Commission, under pain of immediate disciplinary action, including dismissal or loss of
employment status or payment by the locking-out employer of backwages, damages and other
affirmative relief, even criminal prosecution against either or both of them.
The foregoing notwithstanding, the President of the Philippines shall not be precluded from
determining the industries that, in his opinion, are indispensable to the national interest, and from
intervening at any time and assuming jurisdiction over any such labor dispute in order to settle or
terminate the same.
h. Before or at any stage of the compulsory arbitration process, the parties may opt to submit their
dispute to voluntary arbitration.
i. The Secretary of Labor and Employment, the Commission or the voluntary arbitrator shall decide or
resolve the dispute within thirty (30) calendar days from the date of the assumption of the jurisdiction
or the certification or submission of the dispute, as the case may be. The decision of the President,
the Secretary of Labor and Employment, the Commission or the voluntary arbitrator shall be final and
executory ten (10) calendar days after receipt thereof by the parties.
Article 278: Prohibited Activities

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a. No labor organization or employer shall declare a strike or lockout without first having bargained
collectively in accordance with Title VII of this Book or without first having filed the notice required in
the preceding Article or without the necessary strike or lockout vote first having been obtained and
reported
to
the
Ministry.
No strike or lockout shall be declared after assumption of jurisdiction by the President or the
Minister or after certification or submission of the dispute to compulsory or voluntary arbitration or
during the pendency of cases involving the same grounds for the strike or lockout.
Any worker whose employment has been terminated as a consequence of any unlawful
lockout shall be entitled to reinstatement with full backwages. Any union officer who knowingly
participates in an illegal strike and any worker or union officer who knowingly participates in the
commission of illegal acts during a strike may be declared to have lost his employment status:
Provided, That mere participation of a worker in a lawful strike shall not constitute sufficient ground
for termination of his employment, even if a replacement had been hired by the employer during such
lawful strike.
b. No person shall obstruct, impede, or interfere with, by force, violence, coercion, threats or
intimidation, any peaceful picketing by employees during any labor controversy or in the exercise of
the right to self-organization or collective bargaining, or shall aid or abet such obstruction or
interference.
c. No employer shall use or employ any strike-breaker, nor shall any person be employed as a strikebreaker.
d. No public official or employee, including officers and personnel of the New Armed Forces of the
Philippines or the Integrated National Police, or armed person, shall bring in, introduce or escort in
any manner, any individual who seeks to replace strikers 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 officer from taking any measure necessary to maintain peace and order, protect
life and property, and/or enforce the law and legal order.
e. No person engaged in picketing shall commit any act of violence, coercion or intimidation or obstruct
the free ingress to or egress from the employers premises for lawful purposes, or obstruct public
thoroughfares.
Notes:
One of the rights of the employees is to engage in concerted activities for purposes of collective bargaining or
for their mutual benefit and protection. The right of legitimate labor organizations to strike and picket and of employers
to lockout, consistent with the national interest, shall continue to be recognized and respected.
Strike:
A strike means any temporary stoppage of work by the concerted action of employees as a result of an
industrial or labor dispute.
To constitute a strike, the concerted stoppage of work must be:
a. temporary; and
b. a result of a labor dispute
Thus, mass resignation of employees in protest of the dismissal of an employee is not a strike. Although it
results from a labor dispute, but since the stoppage of work is permanent, then it is not considered as strike.
Similarly, the refusal of the employees to work for the purpose of joining a mass demonstration to protest
police abuses does not constitute a strike. Although there is stoppage of work and the same is temporary, it
cannot be considered as strike because it is not a result of a labor dispute.
Two (2) grounds of a valid strike; [EXCLUSIVE]
a) Collective Bargaining Deadlock;
b) Unfair Labor Practice act of the Employer.
[Note: Mao ra ni ang grounds sa strike. Wala nay lain pa]
Lockout:
Lockout means the temporary refusal of any employer to furnish work as a result of an industrial or labor
dispute.

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Strike and lockout are similar because they both connote temporary stoppage of work. The difference is in the
identity of the doer. Strike is done by employees or labor union while lockout is resorted to by an employer. The two
are similar also in the sense that they occur because of and in relation to a labor or industrial dispute involving the
parties.
Protection of Strike:
a) A strike, as a general rule, is not subject to labor injunction or restraining order; (Art. 265)
b) Employees who participated in the strike may not be discriminated against merely because they have
exercised the right to strike; (Art. 258)
c) The use of strike-breakers is prohibited (Art. 278 [c] )
Strike breakers:
This refers to persons who obstruct, impede, or interfere with by force, violence, coercion, threats or
intimidation any peaceful picketing by employees during any labor controversy affecting wages, hours
or conditions of work or in the exercise of the right of self-organization or collective bargaining.
d) mere participation in a strike does not sever the employment relationship ( Art. 278[a] third paragraph)
Another protection with respect to the role of the Police:
a) The involvement of the police shall only be limited to the maintenance of peace and order, enforcement of
laws and legal orders of duly constituted authorities and the performance of specific functions as may be
provided by law.
b) They shall maintain themselves outside a 50-meter radius from the picket line, except, if the 50-meter radius
includes a public thoroughfare of which they may station themselves thereat for the purpose of insuring the
free flow of traffic.
Take Note:
During strike, it is not prohibited for employers to hire replacements. However, it is unlawful for the police to
bring in, introduce or escort any individual who seeks to replace strikers in entering or leaving the premises of a strike
area, or work in place of the strikers.
[ Dili pwede mo-escort ang police sa mga replacements. Ang saktong buhaton is to maintain nga dili dumugon sa mga
strikers ang replacements. Ang target sa mga pulis is pugngan ang mga strikers, dili escortan ang mga replacements.]
Requisites for a Valid Strike:
a) existence of a labor dispute;
Thus, sympathetic strike is not valid.
Sympathetic strike is stoppage of work to make common cause with other strikers in other
establishments or companies, without the existence of any labor disputes between the striking
employees and their own employer.
Welga Ng Bayan is in the nature of a General Strike. It is a situation where employees who have no labor
dispute with their employer refuse to work in sympathy with the workers of another employer. It is an
extended sympathetic strike, hence, not valid.
b) there must be no statutory prohibition to strike:
This applies to government employees.
(Note: Government employees are not allowed to strike).
c) the procedural requirements must have been complied with:
What are the Procedural Requirements for a Valid Strike?
a) filing of a notice of strike;
b) observance of the cooling-off period;
c) taking of strike vote;
d) observance of the seven-day strike-vote-report period
Take Note: These requirements are all MANDATORY.
A. Notice of Strike:
Where to file:
Regional Branch of the National Conciliation and Mediation Board

Who can file:


If the ground of the strike is bargaining deadlock, only the recognized or certified bargaining agent can
file a notice of strike.
If the ground of the strike is ULP, the notice should be filed by the duly recognized or certified
bargaining agent. In the absence of any recognized or certified bargaining agent, any LEGITIMATE

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labor organization may file the notice of strike. [Note: Said legitimate labor organization must be within
the bargaining unit.] (Note further: Legitimate means Registered.)
Under the NCMB Rules, there is the so called Preventive Mediation.
Under Preventive Mediation,
NCMB (National Conciliation and Mediation Board) has the authority to convert a notice of strike filed by
the union into a preventive mediation case if it finds that the real issues raised therein are non-strikeable
in character.
Such authority is in pursuance of the NCMBs duty to exert all efforts at mediation and conciliation to
enable the parties to settle the dispute amicably and in line with the state policy of favoring voluntary
modes of settling labor disputes.
Effect:
Once the notice of strike or lockout is converted into a preventive mediation case, it will be dropped from
the docket of notices of strikes and lockouts. Once dropped therefrom, a strike or lockout can no longer
be legally staged based on the same notice.
The conversation has the effect of dismissing the notice.
Conversation is tantamount to dismissal of notice. Once dismissed, there can be no valid strike.
B. Cooling-off Period
What is a cooling-off period?
It is a time gap to cool-off tempers between the filing of the notice of strike and the actual execution of
strike.
Cooling- off Period:
a. for Deadlock:
- 30 days
b. for ULP:
- 15 days
Is there an instance where Cooling-off Period may not be observed?
Yes. In the face of Union Busting as defined in Article 277(c), the cooling-off period need not be
observed and the union may take action immediately after the strike vote is conducted and the results
thereof submitted to the appropriate regional branch of the Board.
Union Busting exists when;
(1) the union officers are being dismissed;
(2) those officers are the ones duly elected in accordance with the union constitution and bylaws; and
(3) the existence of the union is threatened
Take Note:
Available ra ang non-observance sa cooling-off period kung ULP ang ground sa strike unja naay union
busting.
The other procedural requirements must be complied with. Only the observance of cooling-off period is
dispensed.
C. Strike Vote
The decision to declare a strike requires the secret-ballot approval of majority of the total union membership in
the bargaining unit concerned.
A strike vote should be taken by secret balloting, in meeting or referenda specially called for the purpose.
The needed vote is majority of the total union membership, NOT just majority of the members present in the
meeting or referenda. And it is majority of the union membership, NOT of the bargaining unit.
Similarly, a lockout needs the secret ballot concurrence of the majority of the directors or partners.
In relation to the taking of the strike vote, it is required that a notice must be served to the NCMB at least 24
hours prior to the taking of the strike or lockout vote by secret balloting informing said office of the decision to
conduct a strike or lockout vote and the date, place and time thereof. This is a mandatory requirement. The
failure of the union to comply with the requirement of the giving of notice to the NCMB at least 24 hours prior
to the holding of the strike or lockout vote will render the subsequent strike staged by the union illegal.
It is necessary to inform the NCMB because they will supervise the conduct of the strike vote.
D. Strike Vote Report

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The result of the strike or lockout voting should be reported to the National Conciliation and Mediation Board
at least seven (7) days before the intended strike or lockout, subject to the cooling-off period. This means that
after the strike vote is taken and the result reported to NCMB, seven (7) days must pass before the union can
actually commence the strike.
A strike staged without the submission of the result of the strike-vote is illegal.
The 7-day requirement shall be counted from day following the expiration of the cooling-off period. In effect,
the 7 days are added to the 15-day or 30-day cooling-off period.
In the case of Union Busting:
There is no need to observe the cooling-off period but the union must still comply or observe the 7-day
strike ban period as well as the other procedural requirements.
The 7-day requirement shall be counted from the day following the submission of the strike vote report.

Again, the grounds for strike are:


a. bargaining deadlock; and
b. ULP committed by the employer
Take Note that violation of the collective bargaining agreement is not strikeable unless gross in character.
Under the law, simple violation of the CBA is no longer treated as unfair labor practice but as a mere
grievance which should be processed through the grievance machinery in the CBA.
Query:
What if the ground for the strike is ULP, which the union believed to have been committed by the
management, but was found subsequently as not committed. Is the strike valid?
Answer:
The strike is valid so long as the belief is in good faith. It is not even required that there be in fact an unfair
labor practice committed by the employer. It suffices if such a belief in good faith is entertained by labor as the
inducing factor for staging a strike.
Means and Methods during the Strike:
a. the strikers should not commit any act of violence, coercion or intimidation;
b. the strikers should not obstruct the free ingress to or egress from the employers premises for lawful
purposes;
c. the strikers should not obstruct public thoroughfares
Take Note:
Even if the union has complied with all the procedural requirements but there are unlawful means
committed during the strike, then the same shall be declared invalid.
Article: 277 (g) Automatic Injunction
When there is a labor dispute causing or likely to cause a strike affecting national interest, the Secretary of
Labor and Employment may either assume jurisdiction or certify the dispute to the National Labor Relations
Commission for compulsory arbitration. The secretary may so act at his own initiative or upon petition by any
of the parties.
Such assumption or certification has the effect of automatically enjoining the intended or impending strike or
lockout as specified in the assumption or certification order. If one has already taken place at the time of
assumption or certification, all striking or locked out employees shall immediately return to work and the
employer shall immediately resume operations and readmit all workers under the same terms and conditions
prevailing before the strike or lockout.
Assumption and certification orders are executory in character and are to be strictly complied with by the
parties even during the pendency of any petition questioning their validity.
It is prohibited to hold a strike or lockout after assumption of jurisdiction by the Secretary of Labor or after
certification or submission of the dispute for compulsory or voluntary arbitration.

What are considered National Interest Cases?


The President and the Secretary of Labor have almost unlimited discretion to determine what
industries may be considered as indispensable to the national interest.
The discretion to assume jurisdiction may be exercised by the Secretary of Labor without the necessity
of prior notice or hearing given to any of the party disputants.

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Returning to work in this situation is not a matter of option or voluntariness but of obligation.
Defiance of a return-to-work order is an illegal act. A return-to-work order is immediately effective and
executory notwithstanding a filing of a motion for reconsideration. It must be strictly complied with even during
the pendency of any petition questioning its validity.
Non-compliance with the certification order of the Secretary of Labor and Employment shall be considered as
an illegal act committed in the course of the strike or lockout, and shall authorize the commission to enforce
the same under the pain of immediate disciplinary action including dismissal or loss of employment status or
payment by the locking-out employer of back wages, damages and/or other affirmative relief, even criminal
prosecution against the liable parties.
Take Note that PAYROLL REINSTATEMENT is NOT ALLOWED whenever a return-to-work order is issued.
The law states that employees should be restored to their positions in the company under the last terms and
conditions existing prior to the dispute. Thus, ACTUAL REINSTATEMENT is required.
Illustrative Case:
UST vs. NLRC (1990)

Bisan og naay strained relations, [ lama sa relasyon] dili pwede ang payroll reinstatement.
Take Note:
A no-strike clause in the CBA is applicable only to economic strike. A strike declared by the union on the
ground of ULP is not considered as violation to the no-strike clause in the CBA.
Binding ang no-strike clause against sa union kung ang ground sa strike is deadlock.
Strikes and Lockouts: Illustrative Cases:

1st case- PAL vs. Sec. of Labor


Held: Once converted to preventive mediation case, the conduct of strike & lockout shall be invalid
nd
2 case- Capitol Medical Center vs. NLRC
Held: Non submission of notice of strike vote is tantamount to non-compliance of taking of strike vote.
rd
3 case- San Miguel vs. NLRC
Held: Compliance of grievance procedure must be exhausted first before conducting a strike.
th
4 case- Manila Diamond Hotel vs. CA
Held: Payroll reinstatement is not allowed.
th
5 case: UST vs. NLRC
Held: Actual reinstatement is required.
th
6 case: Reliance vs. NLRC
Held: Employees who were in bad faith cannot be reinstated without loss of seniority rights for to do so
would be to reward them for an act which public policy does not sanction.

PICKETING and other Concerted Actions


A. Picketing
involves the presence of striking workers or their union brothers who pace back and forth before the place
of business of an employer in the hope of being able to persuade peacefully other workers not to work in
the establishment and customers not to do business there.
The right to picket is guaranteed by the constitution as part of the freedom of speech.
While peaceful picketing is entitled to protection as an exercise of free speech, we believe that courts are
not without power to confine or localize the sphere of communication or the demonstration to the parties to
the labor dispute including those with related interest, and to insulate establishments or persons with no
industrial connection or having interest totally foreign to the context of the dispute.[Carpenters and
Joiners Union of America, Local No.213 vs. Ritters Caf, 315 U.S. 722, 62 S. Ct. 807 L ed 1143]
Limitations:
Picketing is subject to the same limitations as strike, particularly as to lawful purpose and lawful
means
B. Boycott

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Overtime Boycott

Illustrative Case:
Interphil Laboratories Employees Union vs. Interphil Laboratories
In this case, the usual hours of work of the employees is 12 hours but they are being paid
overtime pay. When a conflict arises between the union and the company relative to the renewal
of the CBA, ang mga empleyado sa interphil mitrabaho na lamang ug 8 hours. Wala na sila
misunod sa normal shift na 12 hours. Ang question na miabot sa Supreme Court is, whether or
not that overtime boycott constitutes an illegal strike?
The court ruled in affirmative. Overtime boycott is an illegal strike. Overtime boycott is a form of
strike and because it does not follow the procedural requirements and there were no valid
grounds to conduct an overtime boycott, the Supreme Court considered that as an illegal strike.
This is because the 12 hour shift was validated upon agreement of the employees.
Again, Overtime Boycott amounts to Illegal Strike.

C. Slowdown
Is a method by which ones employees, without seeking a complete stoppage of work, retard production and
distribution in an effort to compel compliance by the employer with the labor demands made upon him
Is this an illegal strike?
Slowdown is an illegal strike because while the employees continue to work and remain at their positions
and accept the wages due them, they at the same time select what part of their allocated task they care to
perform of their own volition or refuse openly or secretly to do other work to the employers damage.
Again!
Overtime Boycott and Slowdown are forms of illegal strike.
Art. 280 Requirement for Arrest and Detention
Except on grounds of national security and public peace or in case of commission of a crime, no
union members or union organizers may be arrested or detained for union activities without previous
consultations with the Secretary of Labor.
Notes:
As a general rule, union officers, members, or organizer cannot be arrested or detained for union activities
without previous consultation with the Secretary of Labor and Employment.
Consultations however are not necessary if the arrest is made on grounds of national security and public
peace and in the commission of a crime.
Consequences of Strike and other Concerted Action.
An ordinary striking worker cannot be terminated for mere participation in an illegal strike. There must be proof
that he committed illegal acts during the strike.
A union officer, on the other hand, may be terminated from work when he knowingly participates in an illegal
strike, or when he commits an illegal act during a strike.
Distinction between Workers and Officers
Participation in an illegal strike:
a) Workers; /members
cannot be terminated unless the same committed some illegal acts during the strike
b) Officer;
may be terminated from work
Illustration:
1. Participation in strike:
a) Union officers
b) Union members

DISMISSABLE
Legal Strike
Illegal Strike
NO
YES
NO
NO

2. Commission of illegal Acts in a Strike:

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a) Union officers
b) Union members

BATCH SINE QUA NON


DISMISSABLE
Legal Strike
Illegal Strike
YES
YES
YES
YES

The law in using the word may grants the employer the option of declaring a union officer who participated in
an illegal strike as having lost his employment.
Query 1: Are strikers entitled to backwages?
Answer:
As a general rule they are not entitled to backwages specifically on an economic strike (a strike on ground
of bargaining deadlock) on the principle that a fair days wage accrues only for a fair days labor unless the
laborer was able, willing and ready to work but was illegally locked out, dismissed or suspended.
Query 2: How about if the ground of the strike is ULP, are they entitled to back wages?
Answer:
The striking employees can receive backwages from the day of the act of discrimination, that is, the day of
their discharge.
In relation to Query No. 2:
Strikers are only entitled to backwages if the ground of the strike is ULP which was ACTUALLY committed by
the employer. If it was not committed by the employer but the union believe in good faith that the employer committed
the same, the strike is legal but the striking workers are not entitled to backwages, unless when the strikers voluntarily
offered to return to work but they were refused reinstatement.
Query 3: Can the employer hire other persons as replacements to the striking workers?
Answer:
Yes the law does not prohibit the employer from hiring other person in replacement of the striking workers for
as long as no public official or employee including officers and personnel of AFP or PNP shall bring in, introduce or
escort in any manner any individual who seeks to replace strikers in entering or leaving the premises of the strike area
or work in place of the strikers.
Query 4: Can the employer contract-out work performed by the striking workers?
Answer:
No. The employer cannot contract-out job, work, or service that is directly related to the business or operation
of the principal. Dili ni siya pwede because it is contrary to public policy under D.O 18-02.
Refusal to comply with the Return-to-Work Order:
If a union officer does not comply with the returned-to-work order and continues to strike, said strike becomes
illegal. Since the strike is illegal, it will result to the termination of employment of that union officer who refuses
to comply with the order.
If a union member does not comply with the return-to-work order, the same is tantamount to commission of an
illegal act. Thus, it will also result to the dismissal of the union member.
Bar Questions (set 9 Nos.1-43)
State the cases when a labor dispute would fall under the jurisdiction of voluntary arbitrators or panel of voluntary
arbitrators.
Answer:
Art. 273-274 Jurisdiction of Voluntary Arbitrators.
Interpretation and implementation of CBA
interpretation and enforcement of company personnel policies
gross violation of the CBA
Cases under the jurisdiction of labor arbiter but by agreement of the parties the same were transferred
to arbitrator.
The employer company, in a directive to the union president, ordered the transfer of some of its employees,
including a number of union officials, to its plant offices. The order was opposed by the union. Ultimately, the union
filed an unfair labor practice against the company alleging that the purported transfer of its union officials was
unjust and in violation of the Collective Bargaining Agreement (CBA), Pursuant to the terms of the CBA, the
dispute was referred to a voluntary arbitrator who later ruled on the issues raised by the parties. Could it later be

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validly asserted that the decision of the Voluntary arbitrator would have no compulsory effect on the parties?
Explain.
Answer:
No. The decision of the voluntary arbitrator has compulsory effect to the parties. In fact, voluntary arbitrators or
panel of voluntary arbitrators can issue writ of execution.
Distinguish clearly but briefly between: Sympathy strike and General strike
Answer:
Both sympathy strike and general strike involves temporary stoppage of work by the concerted action of the
employees but in both kinds of strike, the same is not a result of a labor or industrial dispute.
Sympathy strike is showing sympathy to certain workers who are on strike. On the other hand, a general strike
is a strike to publicly protest a certain policy or action taken by the government.
What are the objectives of the Secretary of Labor and Employment in certifying a labor dispute to the NLRC for
compulsory arbitration? Explain.
Answer:
The objectives of the secretary of labor and employment in certifying a labor dispute to the NLCR for
compulsory arbitration are to prevent work stoppage that may adversely affect national interest and to see to it that a
labor dispute is expeditiously settled.
If due to the prolonged strike, ROSE Corp. hired replacements, can it refuse to admit the replaced strikers?
Answer:
No employer can hire replacements for as long as no AFP or PNP personnel shall escort in any manner any
individual who seeks to replace the strikers. What the law prohibits is the contracting-out of work directly related to the
principal business.
Are the strikers in an illegal strike entitled to reinstatement under the Labor Code? Explain.
Answer:
Dapat i- differentiate kung union officers ba or union members. Because any union officers who knowingly
participate in an illegal strike and any union members or officers who knowingly participate in the commission of illegal
acts during a strike maybe declared to have lost its employment status.
Since ang question is with respect ra man sa illegal strike, therefore ang i-refuse ra ug reinstatement are the
union officers.
If the strike is declared illegal, will the strikers be entitled to their wages for the duration of the strike? Explain.
Answer:
No, even if the ground is ULP, in view of its illegality.
A division manager of a company taunted a union officer two days after the union submitted to the Department of
Labor and Employment (DOLE) the result of the strike vote. The division manager said: the union threat of an
unfair labor practice strike is phony or a bluff. Not even 10% of your members will join the strike. To prove union
member support for the strike, the union officer immediately instructed its members to cease working and walk
out. Two hours after the walkout, the workers voluntarily returned to work.
a) Was the walkout a strike? And if so, was it valid activity?
b) Can the union officer who led the short walkout, but who likewise voluntarily led the workers back to
work, be disciplined by the employer?
Answer:
a) The walkout was a strike because there was a temporary stoppage of work which is a result of a labor
dispute. However, it was not valid activity for it fails to comply with the procedural requirements of a valid
strike.
b) Yes. They can be terminated from work for participating in an illegal strike.
Assuming the company admits all the strikers, can it later on dismiss those employees who committed illegal acts?
Answer:
No, when the company admits all the strikers, it is deemed to have waived the issue and condoned the
strikers who committed illegal acts.
(See: TASLI-ALU vs. CA (July 07,2004)

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Magdalo, a labor union in Oakwood, a furniture manufacturing firm, after failing in its negotiations with Oakwood
filed with the DOLE a notice of strike. The DOLE summoned Magdalo and Oakwood for conciliation hearings to
resolve the deadlock. Unable to agree despite efforts of the DOLE, Magdalo called a strike participated in by its
officers and union members including Cesar Trinio, a rank and file employee, who led the walkout. Oakwood filed
a petition to declare illegal the strike which Magdalo staged without observing the 7-day ban under the Labor
Code. Oakwood claimed that the strike being illegal, all those who participated therein, including Cesar Trinio,
could be dismissed as in fact they were so dismissed by Oakwood. Decide the case.
Answer:
There was a strike because by the walkout, there was a temporary stoppage of work as a result of a labor
dispute. But the walkout was illegal because of the failure to comply with the procedural requirements.
The dismissal of Trinio who was merely a union member was not proper because a union member cannot be
terminated for merely participating in an illegal strike. A union member must commit an illegal act during the strike for
him to be terminated.
The dismissal of the union officers was proper because of their participation in an illegal strike.
50% of the employees of Grandeur Company went on strike after negotiations for a collective bargaining
agreement ended in a deadlock. Grandeur Company, being a public utility, immediately petitioned the Secretary of
Labor to assume jurisdiction and certify the case to the NLRC. On the 4 th day of the strike and before the DOLE
Secretary could assume jurisdiction or certify the case to the NLRC, the strikers communicated in writing their
offer to return to work. Grandeur Company refused to accept the offer of the strikers because it realized that they
were not at all capable of paralyzing the operations of the company. The strikers accused Grandeur Company of
illegal lockout. Has Grandeur Company committed the act charged by refusing to accept the offer of the strikers to
return to work? Discuss fully.
Answer:
Yes, there is no law that prohibits strikers to decide not to continue with the strike that they have started.
Under the facts of the case, the company did not give the required notice of lockout. It must be noted that the
requirements of a valid lockout is similar to the requirements of a valid strike.
Since the company did not give the required notice of lockout much less observe the cooling-off period nor the
required strike vote, thus the lockout is illegal.
Union A filed a notice of strike with the NCMB of the DOLE. Upon a motion to dismiss by the company on the
ground that the acts complained of in the notice of strike are non-strikeable, the NCMB dismissed the Notice of
strike but continued to mediate the issues contained therein to prevent the escalation of the dispute between the
parties. While the NCMB was conducting mediation proceedings, the union proceeded to conduct a strike vote as
provided for under the Labor Code. After observance of the procedural processes required under the Code, the
union declared a strike.
a) Is the strike legal?
b) Can the employer unilaterally declare those who participated in the strike as having lost their employment
status?
c) What recourse do these employees (declared by the employer to have lost their employment status) have, if
any?
Answer:
a) No, because the notice of strike was dismissed. The first procedural requirement is absent thus the strike
is illegal.
b) No. Only union officers can be dismissed.
c) File an illegal dismissal case for the union members before the labor arbiter.
Which of the following may be considered among industries most vital to national interest as to be the subject of
immediate assumption of jurisdiction by the secretary of labor and employment or certification for compulsory
arbitration in case of strike or work stoppage arising from a labor dispute?
a) Bulletin daily newspaper publishing company
b) Local franchise of Jollibee and Starbucks
c) Shipping and port services in Cebu and Manila
d) Enchanted Kingdom, Elephant Island and Boracay Resort
e) LBC, DHL and FedEx centers
Answer:
1. Bulletin Daily Newspaper
Access to information, local, foreign or otherwise is requirements for an informed citizenry.

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2. Shipping and Port Services.


The country needs domestic sea transport due to our topography and for the smooth flow of business
and government operations.
3. LBC, DHL
Couriers are essential to foreign and domestic business and government operations.
A deadlock in the negotiations for the collective bargaining agreement between X College and the Union prompted
the latter, after duly notifying the DOLE, to declare a strike on November 5 which totally paralyzed the operations
of the school. The labor secretary immediately assumed jurisdiction over the dispute and issued on the same day
(November 5) a return to work order. Upon receipt of the order, the striking union officers and members on
November 7, filed a motion for reconsideration thereof questioning the Labor Secretarys assumption of jurisdiction
and continued with the strike during the pendency of their motion. On November 30, the labor secretary denied
reconsideration of his return to work order and further noting the strikers failure to immediately return to work
terminated their employment. In assailing the labor secretarys decision, the union contends that:
1) The labor secretary erroneously assumed jurisdiction over the dispute since X College could not be
considered an industry indispensable to national interest
2) The strikers were under no obligation to immediately comply with the November 5 return to work order
because of their then pending motion for reconsideration of such order; and
3) The strike being legal, the employment of the striking union officers and members cannot be terminated. Rule
on these contention. Explain.
Answer:
1. The Secretary of Labor has wide discretion to determine which industry is indispensable to national interest.
2. A return-to-work order is immediately executory notwithstanding the filing of a motion for reconsideration. The
parties, both the union officers and members, are required to comply with the return-to-work order. As ruled by
the court, assumption and certification orders are executory in character and are to be strictly complied with by
the parties even during the pendency of a petition questioning its validity.
Any worker or union officer union who knowingly participate in a strike defying a return to work order
may consequently be declared to have lost its employment status in accordance with the labor code.
A strike was staged in Mella Corp. because of a deadlock in CBA negotiations over certain economic provisions.
During the strike, Mella Corp. hired replacements for the workers who went on strike. Thereafter, the strikers
decided to resume their employment. Can Mella Corporation be obliged to reinstate the returning workers to their
previous positions?
Answer:
Yes. The employer can be obliged to reinstate the returning workers to their previous positions because
workers who go on strike do not lost their employment status except when while on strike, they knowingly participated
in the commission of illegal acts. It must be noted that mere participation of a worker in a legal strike/ lawful strike
should not constitute sufficient ground for terminating his employment even if a replacement had been hired by the
employer during such lawful strike.
As a result of bargaining deadlock between ROSE Corp. and ROSE Employees Union, its members staged a
strike. During the strike several employees committed illegal acts. The company refused to give in to the unions
demands. Eventually, its members informed the company of their intention to return to work. Can ROSE Corp.
refuse to admit all the strikers?
Answer:
No. Assuming that the strike is legal, only those who committed illegal acts can be refused of admittance.
A. What is the rationale for the State regulation of strike activity and what are the interest involved that the State
must balance and reconcile?
B. Cite 2 examples on how the law regulates the use of the strike as a form of concerted activity.
Answer:
A. The first rationale is the constitutional provision that the right to strike is to be exercised in accordance with
law. Another rationale is the civil code provision that the relations between the employer and the employee are imbued
with public interest and are subject to the provisions of special law. The third rationale is the police power of the state.
The interests to be balanced are the rights of the workers and the rights of the employers. The rights of the
workers with respect to security of tenure and concerted activities must be balanced with the rights of the employer to
reasonable return of investments, expansion, and growth.
General welfare or the general peace and progress of the society shall also be considered. That is why the
secretary of labor shall assume jurisdiction over a dispute involving industries indispensable to national interest.

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B. Examples of how the law regulates the use of strike as a form of concerted activity;
1. procedural requirements;
2. prohibition of the use of violence, intimidation and coercion
Employees of ABC declared a strike after filing a notice of strike with the DOLE. They barricade company gates
and damaged vehicles entering company premises. On the second day of the strike, ABC filed a petition with the
DOLE secretary to intervene through the issuance of an assumption of jurisdiction order that the secretary may
issue when a strike or lockout will adversely affect national interest. ABC furnished the Secretary with evidence to
show that company vehicles had been damaged; that electric power had been cut off and equipment and
materials were damaged because electric power was not immediately restored. ABC forecast that the countrys
supply of chlorine for water treatment which the company produces would be affected adversely if ABCs operation
were closed down by the strikers. Could the DOLE secretary intervene, assume jurisdiction and issue a TRO?
Briefly justify your answer.
Answer:
Yes. The DOLE Secretary has wide discretion to determine what industries are indispensable to national
interest.
The DOLE Secretary can also issue a TRO in a form of a return-to-work order. A return-to-work order is
equivalent to automatic injunction.
The workers engaged in picketing activity in the course of a strike. A) Will picketing be legal if non-employees of
the strike-bound employer participate in the activity? B) Can picketing activity be curtailed when illegal acts are
committed by the picketing workers in the course of the activity?
Answer:
a) Yes, picketing is legal even if non-employees should join it. Picketing is a form of exercise of freedom of
speech. Picketing, provided that it is held peacefully, is a constitutional right. In picketing, the disputants in a legal
dispute need not be employer-employee of each other.
b) Yes.
President FX, head of a newly formed labor union composed of 1/3 of the total number of rank and file employees
in Super Stores, Inc., agitated his fellow employees to demand from management pay increases and overtime
pay. His supervisor summoned him to explain his tardiness and refusal to obey regulations. Feeling threatened, he
gathered 20 of his members and staged a 2-day picket in front of the shopping mall. Security staff arrived and
dismantled the placards and barricades blocking the employees entry to the mall. In retaliation, FX threw stones
at the guards, but the other striking workers just stood by watching him. Seven days after the picket, FX who had
gone absent without leave returned to the mall and announced that he had filed a complaint for illegal dismissal
and unfair labor practice against SSI. SSI learned that FXs group was not registered. No strike vote and strike
notice were filed prior to the picket. The guards were told not to allow FX to enter to the company premises as
management considered him effectively terminated. Other union members were accepted back to work by SSI.
Was the dismissal of FX for a valid cause? Was due process observed?
Answer:
There was a valid cause for the dismissal of FX but due process was not observed.
It must be noted that peaceful picketing is part of the constitutional freedom of speech. Right to free speech,
however, has its limits and picketing as a concerted activity is subject to the same limitation as to strike particularly as
to the lawful purpose and lawful means.
In the problem given, picketing became illegal because unlawful means were employed and violence ensued
when FX threw stones at the guards. There was thus, valid cause for the dismissal of FX. However, due process was
not observed because the company did not comply with the twin requirements of notice and hearing.
The secretary of labor assumed jurisdiction over a strike under Art. 263(g) of the labor code and issued a return to
work order. The union defied the return to work order and continued the strike. The company proceeded to declare
all those who participated in the strike as having lost their employment status.
a) Was the companys action valid?
b) Was the company still duty bound to observe the requirements of due process before declaring those who
participated in the strike as having lost their employment status?
Answer:
1) Yes. The Companys action is valid because any declaration of a strike after the secretary of labor has
assumed jurisdiction over a labor dispute is considered an illegal act. Any worker or union officer who knowingly
participates in a strike defying a return-to-work order may consequently be declared to have lost its employment status
and forfeited his right to be readmitted having abandoned his position and so could validly be replaced.
2) Yes, the employer has to comply with the procedural due process notice and hearing.

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The secretary of labor assumed jurisdiction over a strike in Manila Airlines and eventually issued a return to work.
The Manila Airlines Employees Union defied the return to work order and continued with their strike. The
management of Manila Airlines then declared all the employees who participated in the strike dismissed from
employment.
a) Was the act of Manila Airlines management in dismissing the participants in the strike valid?
b) What are the effects of an assumption of jurisdiction by the Secretary of Labor upon the striking
employees and Manila Airlines?
Answer:
a) Yes. The act of Manila Airlines Management in dismissing the participants in the strike is valid because
there was a defiance of a return-to-work order.
b) Assumption of jurisdiction by the Secretary of labor has the effect of automatic injunction issuance of a
return-to-work order which is immediately executory.
The secretary of labor and employment, after assumption of jurisdiction over a labor dispute in an airline issued a
return to work order. The airline filed a motion for reconsideration of the order and pending resolution of the motion
deferred the implementation of the order. Can the airline defer the implementation of the return to work order
pending resolution of the motion for reconsideration?
Answer:
No, the airline cannot defer the implementation of the return-to-work order. The order issued by the Secretary
of labor upon his assumption of jurisdiction over the dispute in an industry indispensable to the national interest is
immediately executory.
Being executory in character, there is nothing for the parties to do but implement the same.
In a labor dispute, the secretary of labor issued an Assumption Order. Give the legal implication of such an order.
Answer:
Such assumption should have the effect of automatically enjoining the intended strike or lockout as specified
in the assumption order. If one has already taken place at the time of assumption, all striking or locked out employees
shall immediately return to work and the employer shall immediately resume operations and readmit all workers under
the same terms and conditions prevailing before the strike or lockout.
What are the statutory requisites for a valid strike by the workers? Should these requisites be complied with
substantially or strictly?
Answer:
1) Statutory requisites include;
a) Grounds of strike
a. 1 bargaining deadlock
a .2 ULP
b) Procedural requirements
b. 1 notice of strike
b .2 cooling-off period (observance)
b. 3 strike vote
b. 4 strike vote ban
c) Automatic injunction
- No strike should be declared after assumption of jurisdiction by the Secretary
d) Prohibition of commission of illegal acts.
- No commission of illegal acts during strike.
Statutory requisites also include;
Who may validly file a notice of strike?
a) Deadlock
Recognized or certified bargaining agent only
b) ULP
Recognized or certified bargaining agent, if any;
Absence of a recognized or certified bargaining agent, any legitimate labor union w/in the
bargaining unit
2) These requisites must be strictly complied with.
Eaglestar Company required a 24-hour operation and embodied this requirement in the employment contracts of
its employees. The employees agreed to work on Sundays and Holidays if their work schedule required them to
do so for which they would be paid additional compensation as provided by law. Last March 2000, the union filed a

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notice of strike. Upon Eaglestars petition, the Secretary of Labor certified the labor dispute to the NLRC for
compulsory arbitration. On April 20, 2000 (Maundy Thursday), while conciliation meetings were pending, the union
officers and members who were supposed to be on duty did not report for work. Neither did they report for work on
April 21 (Good Friday) and on April 22 (Black Saturday), disrupting the factorys operations and causing it huge
losses. The union denied it had gone on a strike because the days when its officers and members were absent
from work were legal holidays. Is the contention of the union correct? Explain briefly.
Answer:
No. The unions actuation is tantamount to overtime boycott (see: Interphil.). Thus, the union officer can be
terminated from work because an overtime boycott is tantamount to an illegal strike for failure to comply with the
procedural requirements.
[Job-contracting (Labor Standards)]
Bar question involving NEDA, a govt agency who hires a contractor pero wala sya mibayad sa wages. Pwede
ba siya makiha considering na govt agency siya?
Answer: Pwede, because in job-contracting, the govt is considered an employer coming
under the private sector.
The Kilusang Kabisig, a newly-formed labor union claiming to represent a majority of the workers in the Microchip
Corporation, proceeded to present a list of demands to the management for purposes of collective bargaining. The
Microchips Corporation, a multinational corporation engaged in the production of computer chips for export,
declined to talk with the union leaders, alleging that they had not as yet presented any proof of majority status.
The Kilusang Kabisig then chained Microchip Corporation with unfair labor practice and declared a wildcat strike
wherein means of ingress and egress were blocked and remote and isolated acts of destruction and violence were
committed.
a) Was the strike legal
b) Was the company guilty of an unfair labor practice when it refused to negotiate with the Kilusang Kabisig
Answer:
a) No, a wildcat strike is one that is declared by a group of workers without formal union approval. A wild cat
strike is illegal because the law requires that for a strike to be legal; among others, the decision to declare a strike
must be approved by the majority of the total union membership in the bargaining unit concerned obtained by a secret
ballot in meetings or referenda called for the purpose.
b) No. The company is not guilty of ULP because in collective bargaining, the employer will only deal with a
labor organization which is organized or certified as the exclusive bargaining representative. Unless recognized or
certified as the exclusive bargaining representative, the employer has no obligation to negotiate with a legitimate labor
organization.
The day following the workers voluntary return to work, the Company Production Manager discovered an unusual
and sharp drop in workers output. It was evidently clear that the workers are engaged in a work slowdown activity.
Is the work slowdown a valid form of strike activity?
Answer:
No. A work slowdown is not a valid form of strike activity. In the case of ILAW at Buklod ng Manggagawa vs.
NLRC, the court ruled that slowdown as a strike on an installment plan is not valid. It is a willful reduction in the rate of
work by concerted action of workers for the purpose of restricting the output of the employer in relation to a labor
dispute.
In Slowdown, there is no complete stoppage of work but only a retardation of production or performance of
their duties which is considered as an illegal act.
Some officers and rank-and-file members of the union staged an illegal strike. Their employer wants all the strikers
dismissed. As the lawyer, what will you advice the employer? Discuss fully
Answer:
Advise the employer that only union officer can be dismissed because for union members to be dismissed
from employment, they must have committed any illegal acts. In addition, procedural due process must be observed
by the employer in dismissing the workers.
Savoy Department Store (SDS) adopted a policy of hiring salesladies on five-month cycles. At the end of a
salesladys five-month term, another person is hired as replacement. Salesladies attend to store customers, were
SDS uniforms, report at specified hours and are subject to SDS workplace rules and regulations. Those who
refuse the 5-month employment contract are not hired. The day after expiration of her 5-month engagement, Lina
wore her SDS white and blue uniform and reported for work but was denied entry into the store premises.
Agitated, she went on a hunger strike and stationed herself in front of one of the gates of SDS. Soon thereafter,
other employees whose 5-month term had also elapsed joined Linas hunger strike. The owner of SDS considered

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the hunger strike staged by Lina, et.al., an eyesore and disruptive of SDS business. He wrote the secretary of
labor a letter asking him to assume jurisdiction over the dispute and enjoin the hunger strike. What answer will you
give if you were the secretary of labor?
Answer:
The question that must be answered first is that; was there a strike?
In the case at bar, Lina was denied of admittance because her contract had already expired. So there was no
stoppage of work because Lina was no longer working with the company. Thus, there was no strike in the case given.
Since there was no strike, there is no need for the Secretary to assume jurisdiction over the alleged dispute.
On the day that the union could validly declare a strike, the Secretary of labor issued an order assuming
jurisdiction over the dispute and enjoining the strike, or if one has commenced, ordering the striking workers to
immediately return to work. The return to work order required the employees to return to work within 24 hours and
was served at 8 a.m. of the day the strike was to start. The order at the same time directed the company to accept
all the employees under the same terms and conditions of employment prior to work stoppage. The union
members did not return to work on the day the Secretarys assumption order was served nor on the next day;
instead, they held a continuing protest rally against the companys alleged unfair labor practices. Because of the
accompanying picket, some of the employees who wanted to return to work failed to do so. On the 3 rd day, the
workers reported for work, claiming that they do so in compliance with the secretarys return to work order that
binds them as well as the company. The company, however, refused to admit them back since they had violated
the secretarys return to work order and are now considered to have lost their employment status. The union
officers and members filed a complaint for illegal dismissal arguing that there was no strike but a protest rally
which is a valid exercise of the workers constitutional right to peaceable assembly and freedom of expression.
Hence, there was no basis for the termination of their employment. You are the Labor arbiter to whom the case
was raffled. Decide, ruling on the following issues:
a) Was there a strike?
b) Were the employees simply exercising their constitutional right to petition for redress of grievances?
c) What are the consequences, if any of the acts of the employer?
Answer:
a) Yes, there was a strike because there was a temporary stoppage of work as a result of a labor dispute.
b) Yes. The employer was exercising their constitutional right to petition for redress of their grievances but in
the form of strike.
c) Because there was a refusal to comply with the return-to-work order, there could be termination from
employment to both union officer and union members.
The rank and file union staged a strike in the company premises which caused the disruption of business
operations. The supervisors union of the same company filed a money claim for unpaid salaries for the duration of
the strike, arguing that the supervisors failure to report for work was not attributable to them. The company
contended that it was equally faultless for the strike was not the direct consequence of any lockout or unfair labor
practice. May the company be held liable for the salaries of the supervisor? Decide.
Answer:
No. The company cannot be held liable for the salaries of the supervisor under the principle of a fair days
wage for a fair days labor.
Since wala sila mitrabaho because of a strike which the company was not at fault, therefore the company
cannot be held liable for the salaries of the supervisor.
Johnny is the duly elected president and principal union organizer of the Nagkakahiusang Manggagawa ng Manila
Restaurant, a legitimate labor organization. He was unceremoniously dismissed by management for spending
virtually 95% of his working hours in union activities. On the same day, Johnny received the notice of termination;
the labor union went on strike. Management filed an action to declare the strike illegal, contending that:
a. The union did not observe the cooling-off period mandated by the Labor Code
b. The union went on strike without complying with the strike-vote requirement under the Labor Code.
Rule on the foregoing contentions with reasons.
Answer:
a) There is no need to observe the cooling-off period because there was union busting in the case at bar;
dismissal of union officer duly elected in accordance with the constitution and by- laws of the union.
b) The strike is illegal because of the failure to comply with other 3 procedural requirements; that is, filing of a
notice of strike, conduct of strike vote and the observance of the strike vote ban.
A is a member of the labor union duly recognized as the sole bargaining representative of his company. Due to a
bargaining deadlock, 245 members of the 500-strong union voted on March 13, 2010 to stage a strike. A notice of
strike was submitted to the NCMB on March 6, 2010. Seven days later or on March 23, 2010, the workers staged
a strike in the course of which A had to leave and go to the hospital where his wife had just delivered a baby. The

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union members later intimidated and barred other employees from entering the work premises, thus paralyzing the
business operations of the company. A was dismissed from employment as a consequence of the strike.
a. Was the strike legal?
b. Was As dismissal valid? Why or why not?
Answer:
a) No. The strike was illegal because the union did not observe the cooling-off period of 30 days and the strike
vote ban of 7 days subject to the cooling-off period.
b) No. As dismissal is not valid because A is a mere member of the union. In addition, he did not participate in
the said strike. As a rule, a union member can only be dismissed from employment when he participated in the
commission of some illegal acts.
On the first day of collective bargaining negotiations between rank and file Union A and B Bus Company, the
former proposed a P45/day increase. The company insisted that ground rules for negotiations should first be
established, to which the union agreed. After agreeing on ground rules on the second day, the union
representative reiterated their proposal for a wage increase. When company representatives suggested a
discussion of political provisions in the CBA as stipulated in the ground rules, union members went on mass leave
the next day to participate in a whole-day prayer rally in front of the company building.
a) The company filed a petition for assumption of jurisdiction with the secretary of labor and employment.
The union opposed the petition arguing that it did not intend to stage a strike. Should the petition be
granted? Explain.
b) The union contended that assuming that the mass leave will be considered as a strike, the same was valid
because of the refusal of the company to discuss the economic provisions of the CBA. Rule on the
contention.
c) Union member AA, a pastor who headed the prayer rally was served a notice of termination by
management after it filed the petition for assumption of jurisdiction. May the company validly terminate
AA? Explain.

Answer:
a) Yes. Mass-leave for prayer rally is considered as a strike because there was a temporary stoppage of work
as a result of a labor dispute. Thus, the secretary of labor who has the power to determine what industries are
indispensable to national interest can assume jurisdiction over the dispute because there was a strike.
b) No. The mass leave for prayer rally is not a valid strike because it failed to comply with the procedural
requirements.
c) Kung wala pa gani mo-assume og jurisdiction ang Secretary, the pastor cannot be terminated from
employment because a union member cannot be terminated from employment for mere participating in an illegal
strike. The union member must commit illegal acts during the strike to be terminated from employment. But once the
Secretary of labor assume jurisdiction over the labor dispute, the pastor could be terminated from employment should
he continues leading the prayer rally.
Several employees and members of Union A were terminated by Western Phone Co. on the ground of
redundancy. After complying with the necessary requirements, the union staged a strike and picketed the
premises of the company. The management then filed a petition for the secretary of labor to assume jurisdiction
over the dispute. Without the benefit of a hearing, the secretary issued an order to assume jurisdiction and for the
parties to revert to the status quo ante litem.
a) Was the order to assume jurisdiction legal? Explain.
b) Under the same set of facts the secretary instead issued an order directing all striking workers to return to
work within 24 hours, except those who were terminated due to redundancy. Was the order legal? Explain.
Answer:
a) Yes. It is not required that there should be a prior hearing prior to the assumption of jurisdiction. Hearing is
not a condition sine qua non for the secretary of labor to assume jurisdiction.
b) No. The order was illegal. A return-to-work order should not be conditional or qualified.
The union filed a notice of strike due to bargaining deadlock. But, because the Secretary of Labor assumed
jurisdiction over the dispute, the strike was averted. Meanwhile, the employer observed that the union engaged in
a work slowdown. Contending that the slowdown was in fact an illegal strike, the employer dismissed all the union
officers. The union president complained of illegal dismissal because the employer should first prove his part in
the slowdown. Is the union president correct? 2011
a) Yes, since the employer gave him no notice of its finding that there was a slowdown.
b) Yes, the employer must prove the union presidents part in slowdown.
c) No. When a strike is illegal, the management has the right to dismiss the union president.
d) No. As the union president, it may be assumed that he led the slowdown.

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The employees union in San Joaquin Enterprise continued their strike despite a return to work order from the
Secretary of Labor. Because of this defiance, the employer dismissed the strikers. But the Labor Arbiter declared
as illegal the dismissal of those whose commission of unlawful acts had not been proved. They were ordered
immediately reinstated. The employer refused however, to reinstate them on the ground that the rule on immediate
reinstatement applies only to terminations due to just or authorized causes. Is the employers refusal justified?
2011
a) No, every employee found to have been illegally dismissed is entitled to immediate reinstatement
even pending appeal.
b) Yes. The employers refusal is legal and justified as a penalty for defying the secretarys lawful order.
c) Yes, the rule on immediate reinstatement does not apply to employees who have defied a return-to-work
order.
d) No. the dismissal of the employees was valid; reinstatement is unwarranted.
Union X staged a strike in front of Company B because of a CBA deadlock. The strike, Company B hired
replacement workers. Upon resuming their employment, the strikers found that Company B had hired replacement
workers in their place. Is company B obliged to reinstate the returning workers?2012
a) No, because the strike caused work stoppage;
b) No, because it is a valid exercise of management prerogative;
c) Yes, because workers who go on strike do not lose their employment status;
d) Yes, because workers are entitled to such retention every time during a valid strike.
Which of the following is not a valid reason for a strike?
a) There is a bargaining deadlock;
b) There is a prevailing intra-union dispute;
c) The company engaged in unfair labor practice;
d) There is a flagrant violation of the CBAs economic provisions.
In response to Company Xs unfair labor practices, a union officer instructed its members to stop working and walk
out of the company premises. After three (3) hours, they voluntarily returned to work. Was there a strike and was it
a valid activity?2012
a) Yes, it was a strike; yes, it was a valid activity;
b) Yes, it was a strike; no, it was not a valid activity;
c) No, it was not a strike; yes, it was a valid activity;
d) No, it was not a strike; no, it was not a valid activity.

A deadlock in the negotiations for the collective bargaining agreement between College X and the Union
prompted the latter, after duly notifying the DOLE, to declare a strike on November 5. The strike totally paralyzed
the operations of the school. The Labor Secretary immediately assumed jurisdiction over the dispute and issued
on the same day (November 5) a return to work order. Upon receipt of the order, the striking union officers and
members, on November 7, filed a Motion for Reconsideration thereof questioning the Labor Secretarys
assumption of jurisdiction and continued with the strike during the pendency of their motion. On November 30, the
Labor Secretary denied the reconsideration of his return to work order and further noting the strikers failure to
immediately return to work, terminated their employment. In assailing the Labor Secretarys decision, the Union
contends that:
1. The Labor Secretary erroneously assumed jurisdiction over the dispute since College A could not be
considered an industry indispensable to national interest;
2. The strikers were under no obligation to immediately comply with the November 5 return to work order
because of their rending Motion for Reconsideration of such order; and
3. The strike being legal, the employment of the striking Union, officers and members cannot be
terminated. Rule on these contentions, Explain.2012

Answer:
1. The Secretary of Labor has wide discretion to determine which industry is indispensable to national interest.
2. A return-to-work order is immediately executory notwithstanding the filing of a motion for reconsideration. The
parties, both the union officers and members, are required to comply with the return-to-work order. As ruled by
the court, assumption and certification orders are executory in character and are to be strictly complied with by
the parties even during the pendency of a petition questioning its validity.
Any worker or union officer union who knowingly participate in a strike defying a return to work order
may consequently be declared to have lost its employment status in accordance with the labor code.
When there is no recognized collective bargaining agent, can a legitimate labor organization validly declare a
strike against the employer? (1%) 2013
a) Yes, because the right to strike is guaranteed by the Constitution and cannot be denied to any
group of employees
b) No, because only an exclusive bargaining agent may declare a strike against the employer

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c) Yes, because the right to strike is a basic human right that the countrys international labor
organization recognize
d) Yes, but only in case of unfair labor practice
e) No, in the absence of a recognized bargaining agent, the workers recourse is to file a case before
the department of labor and employment
Chapter II Assistance to Labor Organizations
Art. 281. Assistance by the Department of Labor.
The Department of Labor, at the initiative of the Secretary of Labor, shall extend special assistance to
the organization, for purposes of collective bargaining, of the most underprivileged workers who, for reasons
of occupation, organizational structure or insufficient incomes, are not normally covered by major labor
organizations or federations.
Art. 282. Assistance by the Institute of Labor and Manpower Studies.
The Institute of Labor and Manpower Studies shall render technical and other forms of assistance to
labor organizations and employer organizations in the field of labor education, especially pertaining to
collective bargaining, arbitration, labor standards and the Labor Code of the Philippines in general.
Notes:
This pertains to the obligation of the Union to conduct Labor Education Seminars to its members to inform
them of the provisions of their constitution and by-laws, collective bargaining agreement, the prevailing labor relations
system, and all their rights and obligations under the existing labor laws.
Chapter III Foreign Activities
Art. 283 Prohibition against aliens; exceptions.
All aliens, natural or juridical, as well as foreign organizations are strictly prohibited from engaging
directly or indirectly in all forms of trade union activities without prejudice to normal contacts between
Philippine labor unions and recognized international labor centers: Provided, however, That aliens working in
the country with valid permits issued by the Department of Labor and Employment, may exercise the right to
self-organization and join or assist labor organizations of their own choosing for purposes of collective
bargaining: Provided, further, That said aliens are nationals of a country which grants the same or similar
rights to Filipino workers.
Notes:
This pertains to the rights of foreigners to join or to engage labor organizations. Foreigners, whether natural or
juridical as well as foreign corporations are strictly prohibited from engaging directly or indirectly in all forms of trade
union activities except aliens working in the country with valid working permits and are nationals of a country which
grants the same rights to Filipino nationals as certified by the Department of Foreign Affairs.
Article 284 Regulation of foreign assistance.
a. No foreign individual, organization or entity may give any donations, grants or other forms of
assistance, in cash or in kind, directly or indirectly, to any labor organization, group of workers or any
auxiliary thereof, such as cooperatives, credit unions and institutions engaged in research, education
or communication, in relation to trade union activities, without prior permission by the Secretary of
Labor.
"Trade union activities" shall mean:
(1) organization, formation and administration of labor organization;
(2) negotiation and administration of collective bargaining agreements;
(3) all forms of concerted union action;
(4) organizing, managing, or assisting union conventions, meetings, rallies, referenda, teach-ins,
seminars, conferences and institutes;
(5) any form of participation or involvement in representation proceedings, representation
elections, consent elections, union elections; and
(6) Other
activities
or
actions
analogous
to
the
foregoing.
b. This prohibition shall equally apply to foreign donations, grants or other forms of assistance, in cash
or in kind, given directly or indirectly to any employer or employers organization to support any

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activity

or

BATCH SINE QUA NON


activities

affecting

trade

unions.

c. The Secretary of Labor shall promulgate rules and regulations to regulate and control the giving and
receiving of such donations, grants, or other forms of assistance, including the mandatory reporting
of the amounts of the donations or grants, the specific recipients thereof, the projects or activities
proposed to be supported, and their duration.
Notes:
Prior permission from the Secretary of Labor is required before a foreign individual, organization or entity can
give donations, grants or other forms of assistance in cash or in kind to any labor organization, or any auxiliary thereof.
Legitimate labor organizations should make a disclosure of the donations and donors for purposes of the
annual financial reports.
Chapter IV- PENALTIES FOR VIOLATION
Article 286- Penalties
a. Any person violating any of the provisions of Article 264 of this Code shall be punished by a fine of
not less than one thousand pesos (P1,000.00) nor more than ten thousand pesos (P10,000.00) and/or
imprisonment for not less than three months nor more than three (3) years, or both such fine and
imprisonment, at the discretion of the court. Prosecution under this provision shall preclude
prosecution for the same act under the Revised Penal Code, and vice versa.
b. Upon the recommendation of the Minister of Labor and Employment and the Minister of National
Defense, foreigners who violate the provisions of this Title shall be subject to immediate and summary
deportation by the Commission on Immigration and Deportation and shall be permanently barred from
re-entering the country without the special permission of the President of the Philippines
Notes:
Prosecution under this provision shall preclude prosecution for the same act under the Revised Penal Code,
and vice versa.
The regular courts have jurisdiction over any criminal action under this article.
Article 287- Study of Labor- Management Relations;
The Secretary of Labor shall have the power and it shall be his duty to inquire into:
a. the existing relations between employers and employees in the Philippines;
b. the growth of associations of employees and the effect of such associations upon employeremployee relations;
c. the extent and results of the methods of collective bargaining in the determination of terms and
conditions of employment;
d. the methods which have been tried by employers and associations of employees for
maintaining mutually satisfactory relations;
e. desirable industrial practices which have been developed through collective bargaining and
other voluntary arrangements;
f. the possible ways of increasing the usefulness and efficiency of collective bargaining for
settling differences;
g. the possibilities for the adoption of practical and effective methods of labor-management
cooperation;
h. any other aspects of employer-employee relations concerning the promotion of harmony and
understanding between the parties; and
i. The relevance of labor laws and labor relations to national development.
The Secretary of Labor shall also inquire into the causes of industrial unrest and take all the
necessary steps within his power as may be prescribed by law to alleviate the same, and shall from time to
time recommend the enactment of such remedial legislation as in his judgment may be desirable for the
maintenance and promotion of industrial peace.
Article 288- Visitorial Power
The Secretary of Labor and Employment or his duly authorized representative is hereby empowered to
inquire into the financial activities of legitimate labor organizations upon the filing of a complaint under oath

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and duly supported by the written consent of at least twenty percent (20%) of the total membership of the
labor organization concerned and to examine their books of accounts and other records to determine
compliance or non-compliance with the law and to prosecute any violations of the law and the union
constitution and by-laws: Provided, That such inquiry or examination shall not be conducted during the sixty
(60)-day freedom period nor within the thirty (30) days immediately preceding the date of election of union
officials.
Notes:
This pertains to the Visitorial Power of the Secretary of Labor different from Article 128 of the Labor Code.
Difference between Article 128 and Article 288;
Article 288 pertains to the enforcement of laws or regulations relating only to financial activities and
records of labor organizations while Article 128 pertains to the administrative enforcement of Labor
Code provisions and all labor laws and wage orders in employer establishments.
Sa Article 128, ang gi-examine ato is the record of the employer whether or not the same has complied
with the labor standard provisions of the law while sa Article 288, ang gi-examine is the financial
activities and records of the labor organizations.
Unlike sa Article 128 nga diin pwede ra og routine inspection, Article 288 requires a sworn complaint
filed and supported by at least 20% of the organizations membership, before maka-exercise sa ijang
visitorial power ang Secretary of Labor.
Again, dili pwede ang routine inspection sa Art. 288
(Sa art. 128, employer ang bisitahon. While sa Art. 288, labor union ang bisitahon.)
Where to file the complaint under Article 288?
The complaint shall be filed with the Regional Office that issued its certificate of registration or certificate of
creation of chartered local if the same involves independent labor unions, chartered locals and workers
associations.
If it involves federations or national unions and trade union centers, the complaint shall be filed with the
Bureau of Labor Relations.
Now, if the complaint or petition is with allegations of mishandling, misappropriation or non-accounting of
funds in violation of article 249, the same shall be treated as intra-union dispute which will be heard and resolved by
the Med-arbiter.
The complaint or petition for audit or examination of funds and book of accounts shall prescribed within three
(3) years from the date of submission of the annual financial report to the Department or from the date the same
should have been submitted as required by law, whichever comes earlier.
The decision granting the conduct of the audit is INTERLOCUTORY and SHALL NOT BE APPEALABLE. If
the decision is to conduct an audit of the funds of the union, the order shall include the appointment of the Audit
Examiner and a directive to submit a report and recommendation within ten (10) days from the termination of audit.
What can be appealed is the decision denying or dismissing the complaint or petition for audit. The same can
be done within ten (10) days from receipt thereof pursuant to the provisions prescribed in inter/intra-union dispute.
The Audit Examiner shall conduct an inventory and the same shall be forwarded to the Med-arbiter or to the
Bureau Director who shall render a decision within 20 days from receipt of the audit report.
The decision of the Med-Arbiter based on the audit report shall be appealable to the Bureau while the decision
of the Bureau in the exercise of its original jurisdiction shall be appealable to the Secretary of Labor.
No complaint for inquiry or examination of the financial and book of accounts as well as other records of any
legitimate labor organizations shall be entertained during the 60-day freedom period or within 30 days immediately
preceding the date of election of union officers.
Article 289 Tripartism and Tripartite Conferences
a. Tripartism in labor relations is hereby declared a State policy. Towards this end, workers and
employers shall, as far as practicable, be represented in decision and policy-making bodies of the
government.
b. The Secretary of Labor and Employment or his duly authorized representatives may, from time to time,
call a national, regional, or industrial tripartite conference of representatives of government, workers
and employers for the consideration and adoption of voluntary codes of principles designed to

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promote industrial peace based on social justice or to align labor movement relations with established
priorities in economic and social development. In calling such conference, the Secretary of Labor and
Employment may consult with accredited representatives of workers and employers.
Notes:
Tripartism is representation of the three (3) sectors - the public or the government, the employers, and the
workers - in the policy-making bodies of the government.
Article 290 Government employees.
The terms and conditions of employment of all government employees, including employees of
government-owned and controlled corporations, shall be governed by the Civil Service Law, rules and
regulations. Their salaries shall be standardized by the National Assembly as provided for in the New
Constitution. However, there shall be no reduction of existing wages, benefits and other terms and conditions
of employment being enjoyed by them at the time of the adoption of this Code.
Article 291 Miscellaneous Provisions.
a. All unions are authorized to collect reasonable membership fees, union dues, assessments and fines
and other contributions for labor education and research, mutual death and hospitalization benefits,
welfare fund, strike fund and credit and cooperative undertakings.
b. Subject to the constitutional right of workers to security of tenure and their right to be protected
against dismissal except for a just and authorized cause and without prejudice to the requirement of
notice under Article 283 of this Code, the employer shall furnish the worker whose employment is
sought to be terminated a written notice containing a statement of the causes for termination and shall
afford the latter ample opportunity to be heard and to defend himself with the assistance of his
representative if he so desires in accordance with company rules and regulations promulgated
pursuant to guidelines set by the Department of Labor and Employment. Any decision taken by the
employer shall be without prejudice to the right of the worker to contest the validity or legality of his
dismissal by filing a complaint with the regional branch of the National Labor Relations Commission.
The burden of proving that the termination was for a valid or authorized cause shall rest on the
employer. The Secretary of the Department of Labor and Employment may suspend the effects of the
termination pending resolution of the dispute in the event of a prima facie finding by the appropriate
official of the Department of Labor and Employment before whom such dispute is pending that the
termination may cause a serious labor dispute or is in implementation of a mass lay-off.
c. Any employee, whether employed for a definite period or not, shall, beginning on his first day of
service, be considered as an employee for purposes of membership in any labor union.
d. No docket fee shall be assessed in labor standards disputes. In all other disputes, docket fees may be
assessed against the filing party, provided that in bargaining deadlock, such fees shall be shared
equally
by
the
negotiating
parties.
e. The Minister of Labor and Employment and the Minister of the Budget shall cause to be created or
reclassified in accordance with law such positions as may be necessary to carry out the objectives of
this Code and cause the upgrading of the salaries of the personnel involved in the Labor Relations
System of the Ministry. Funds needed for this purpose shall be provided out of the Special Activities
Fund appropriated by Batas Pambansa Blg. 80 and from annual appropriations thereafter.
f. A special Voluntary Arbitration Fund is hereby established in the Board to subsidize the cost of
voluntary arbitration in cases involving the interpretation and implementation of the Collective
Bargaining Agreement, including the Arbitrators fees, and for such other related purposes to promote
and develop voluntary arbitration. The Board shall administer the Special Voluntary Arbitration Fund
in accordance with the guidelines it may adopt upon the recommendation of the Council, which
guidelines shall be subject to the approval of the Secretary of Labor and Employment. Continuing
funds needed for this purpose in the initial yearly amount of fifteen million pesos (P15,000,000.00)
shall be provided in the 1989 annual general appropriations acts.
The amount of subsidy in appropriate cases shall be determined by the Board in accordance
with established guidelines issued by it upon the recommendation of the Council.
The Fund shall also be utilized for the operation of the Council, the training and education of
Voluntary Arbitrators, and the Voluntary Arbitration Program.
g. The Ministry shall help promote and gradually develop, with the agreement of labor organizations and
employers, labor-management cooperation programs at appropriate levels of the enterprise based on

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the shared responsibility and mutual respect in order to ensure industrial peace and improvement in
productivity, working conditions and the quality of working life.
h. In establishments where no legitimate labor organization exists, labor-management committees may
be formed voluntarily by workers and employers for the purpose of promoting industrial peace. The
Department of Labor and Employment shall endeavor to enlighten and educate the workers and
employers on their rights and responsibilities through labor education with emphasis on the policy
thrusts of this Code.
i. To ensure speedy labor justice, the periods provided in this Code within which decisions or
resolutions of labor relations cases or matters should be rendered shall be mandatory. For this
purpose, a case or matter shall be deemed submitted for decision or resolution upon the filing of the
last pleading or memorandum required by the rules of the Commission or by the Commission itself, or
the Labor Arbiter, or the Director of the Bureau of Labor Relations or Med-Arbiter, or the Regional
Director.
Upon expiration of the corresponding period, a certification stating why a decision or resolution has
not been rendered within the said period shall be issued forthwith by the Chairman of the Commission, the
Executive Labor Arbiter, or the Director of the Bureau of Labor Relations or Med-Arbiter, or the Regional
Director, as the case may be, and a copy thereof served upon the parties.
Despite the expiration of the applicable mandatory period, the aforesaid officials shall, without
prejudice to any liability which may have been incurred as a consequence thereof, see to it that the case or
matter shall be decided or resolved without any further delay.
Notes:
Take note of letters b and c,
These pertain to the procedural due process in terminating/termination of employment
Book VI Post Employment
Article 292- Coverage
The provisions of this Title shall apply to all establishments or undertakings, whether for profit or not.
Article 293 Security of Tenure
In cases of regular employment, the employer shall not terminate the services of an employee except
for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be
entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages,
inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his
compensation was withheld from him up to the time of his actual reinstatement.
Notes:
Security of tenure pertains to the constitutional right of a worker not to be dismissed from work except for a
valid, legal reason and through proper procedure. The employer shall not terminate the services of an employee
except for a just cause or when authorized by law.
Causes for Termination:
a) Just Causes
b) Authorized Causes
The right to security of tenure is not only limited to regular employment. It even applies to managerial
employees.
Security of Tenure as a constitutional guarantee protects an employee not only against arbitrary or unjust
dismissal but also against other personnel actions such as transfer or demotion which are calculated to force an
employee to give up his employment without valid reasons.
Part of management prerogative is the freedom of the employer according to his discretion and best judgment
to regulate and control all aspects of employment in their business organization. Such aspect of employment includes
hiring, work assignments, working methods, time, place, and manner of work, tools to be used, processes to be
followed, supervision of workers, working regulations, transfer of employees, work supervision, lay-off of workers,
discipline, dismissal and recall of workers
Prerogative to Transfer:
Query:
The employee concerned is assigned in Maasin, naa na diri ang ijang family og naa na pud diri nag-eskwela
ang mga anak. Then, i-transfer siya sa Tacloban by the owner of the business establishment. Aduna bay right ang

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employee not to accept or follow the transfer on the ground of inconvenience? Is that part of his right to security of
tenure?
Answer:
No. The Supreme Court has recognized and upheld the prerogative of management to transfer an employee
from one office to another provided, that there is no demotion in rank or diminution of salary, benefits and other
privileges and that the action is not motivated by discrimination, made in bad faith, or effected as a form of punishment
or demotion without sufficient cause. The employees right to security to tenure does not give him/her vested right in
his/her position. Thus, an employee cannot refuse a transfer order. Otherwise, the same will constitute a just cause for
dismissal on ground of insubordination because the employer has the prerogative to transfer employee even if by
virtue thereof it will cause inconvenience to the employee.
Prerogative to Promote?
Query:
Promotion is the advancement from one position to another involving the increase of duties and
responsibilities as authorized by law and in some instance increase in compensation and benefits. Does an employee
have the right to refuse a promotion?
Answer:
Yes. Unlike in transfer, an employee has the right to refuse a promotion. There is no law that compels an
employee to accept promotion. For example, one is transferred because na-promote siya. Kini nga instance pwede na
mo-refuse sa transfer ang employee tungod kay ang reason sa transfer is promotion man. Provided that said
employee will not accept the promotion.
Take note, promotion does not mean increase in salary.
Again, recall:
Dili pwede mo-refuse og transfer ang usa ka employee unless such transfer is coupled with demotion in rank,
diminution of salary and benefits and that said transfer is motivated and made in bad faith.
Pwede mo-refuse og promotion ang employee because there is no law which compels an employee to accept
a promotion.
In case of transfer due to promotion, pwede na mo-refuse ang employee sa transfer provided dili siya moaccept sa promotion.
Take note:
An employer has the prerogative to demote an employee but the same is subject to the rules and regulations
provided by law. Also, an employer has the prerogative to discipline employees subject to the rules and regulations
provide by law.
Article 294 Regular and Casual Employment
The provisions of written agreement to the contrary notwithstanding and regardless of the oral
agreement of the parties, an employment shall be deemed to be regular where the employee has been
engaged to perform activities which are usually necessary or desirable in the usual business or trade of the
employer, except where the employment has been fixed for a specific project or undertaking the completion
or termination of which has been determined at the time of the engagement of the employee or where the
work or services to be performed is seasonal in nature and the employment is for the duration of the season.
An employment shall be deemed to be casual if it is not covered by the preceding paragraph.
Provided, that any employee who has rendered at least one (1) year of service, whether such service is
continuous or broken, shall be considered a regular employee with respect to the activity in which he is
employed and his employment shall continue while such activity exists.
Notes:
Kinds of Employment:
1. regular
2. project
3. casual
4. seasonal
5. probationary; and
6. fixed period
Article 294 presupposes employer-employee relationship between the parties. In all kinds of employment, it is
presumed that there is always employer-employee relationship between the parties.
1) REGULAR EMPLOYMENT:

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Who are Regular Employees?


The primary standard to determine a regular employment is the reasonable connection between the particular
activity performed by the employee in relation to the usual business or trade of the employer. Considering the
provisions of the law, there are two kinds of regular employees, namely;
a) Regular employees by nature of work
b) Regular employees by years of service

An employee is considered regular if he/she has been engaged to perform activities which are usually
necessary or desirable in the usual business or trade of the employer. Thus, an employee can be a regular employee
even at the start of his/her employment (regular employee by nature of work).
An employee may also be considered regular if he/she has rendered at least one year of service, whether
such service is continuous or broken with respect to activity in which he is employed and his employment shall
continue while such activity exists (regular employee by years of service). This type of employee has been engaged in
activities which are NOT necessary or desirable to the usual business of the employer.
Also, those employees who are allowed to work after a probationary period are considered as regular
employees.
What determines whether an employment is regular or casual is not the will and words of the employer, to
which the worker often accedes, much less the procedure of hiring the employee or the manner of paying his salary. It
is the nature of the activities performed in relation to the particular business or trades considering all circumstances,
and in some cases the length of time of its performance and its continued existence.
Take note, continuous rehiring is an evidence of desirability and necessity of the work performed by the
employee.
Again, regular employees are;
Those employees who have been engaged to perform activities necessary or desirable to the particular
business or trade of the employer
Those employees who have been engaged to perform activities NOT necessary or desirable to the particular
business or trade of the employer but has already rendered services for at least 1 year whether such service
is continuous or broken
2) CASUAL EMPLOYMENT:
Who are Casual Employees?
They are those employees who have been engaged to perform activities NOT necessary or desirable in the
usual business or trade of the employer and with LESS than one (1) year of service.

3) PROJECT EMPLOYMENT:
Who are Project Employees?
They are those whose employment has been fixed on a specific project or undertaking, the completion and
termination of which has been determined at the time of the engagement of the employee
In project employment, the duration or period of project employment is already predetermined or specified.
(mao ni ang importante sa project employment)
Aron ma-consider ka na project employee, kinahanglan ang duration sa project is determined na.
Kinahanglan ang kontrata is specific.

Example: Construction sa Roof sa house ni Marvin Magaipo. Kinahanglan specified ang phase sa
construction. Kung vague ang contract, dili ma-consider ang employee na project employee, mahug siya og regular
employee.
The predetermination of the duration or period of project employment is important in resolving whether one is
a project employee or not. The length of service is NOT the controlling test.

The Principal Test:


The principal test for determining whether particular employees are properly characterized as project
employees is Whether or not the project employees were assigned to carry out specific project or undertaking the
duration of which were specified at the time the employees were engage for the project.
Query: Do project employees have security of tenure?
Answer:
Yes. They cannot be terminated from their employment prior to the termination of the project or prior to the
end or completion of the contract. Within the period of the contract or project, they can only be terminated on just and
authorized causes.

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Query: Upon completion of the contract, unsa may requirement sa employer sa pag-terminate sa
mga
empleyado?
Answer:
General rule, NONE. Basta mahuman ang contract, wala na silay trabaho kay ang protection nila with respect
to their right to security of tenure is that they cannot be terminated during the period of the contract. So kung
mahuman na ang contract, terminate na pud ang ilang employment.
However, in case project employees, the law requires the employer to report at the nearest public employment
office the fact of termination of the project employee as a result of the completion of the project/contract or any phase
thereof. The notice is directed not to the project employees but to the DOLE.
Query: What is the effect of the failure to file a termination notice?
Answer:
It is an indication that the employees were not project employees but regular employees.
Project employees are NOT entitled to termination pay if they are terminated as the result of completion of the
project or any phase thereof from which they are employed by a particular construction company. The company is not
required to obtain a clearance from the secretary of labor in connection with such termination. What is required of the
company is a report to the nearest Public Employment Office of the fact of such termination for statistical purposes.
Query: Can a project employee become a regular employee?
Answer:
Yes, a project employee becomes a regular employee if there is a continuous re-hiring of the alleged project
employees even after the cessation of the project and the tasks performed by the alleged project employees are vital,
necessary and indispensable to usual business or trade of the employer.
Take note, repeated re-hiring is an evidence of desirability and necessity of the work performed by the
employee.
Also, fixed period and project employment cannot be used to defeat the purpose of regular employment.
Furthermore dili pasabot na ang project employees automatic na mahimong regular employees kung moabot
na ug 1 year. That provision applies only to casual employees.
4) SEASONAL EMPLOYMENT:
Who are Seasonal Employees?
They are those called to work from time to time. The nature of their relationship with the employer is such
during their off-season, they are temporarily laid off but they are reemployed during same season or when their
services are needed. Their employment relationship is never severed but only suspended.
However, if a seasonal worker whose work is not merely for the duration of season but who are rehired every
working season, he shall be considered regular seasonal worker. Failure to rehire a regular seasonal worker for the
next season amounts to illegal dismissal.

5) FIXED PERIOD EMPLOYMENT:


This type of employment refers to that which involves contract of employment for a fixed or definite period or
term. For example, kung papirmahon ang employee og contract which states; from January June 2014.
Query: Is fixed-period employment the same with project employment?
Answer:
No. A project employment lasts only for the projects duration which is predetermined at the time of hiring.
While ang fixed-period employment mao nang naay mga definite period or term, such as from January June, 2014.
Query: Is fixed-period employment allowed?
Answer:
Yes. The labor code does not prohibit an employment contract with a fixed period, provided the same is
entered into by the parties without any force duress or improper pressure being brought to bear upon the employee
and absent any other circumstance vitiating consent.

Requirements for a valid fixed-period employment:


(a) It has been agreed upon knowingly and voluntarily
(b) It was agreed without any force, duress or improper pressure being brought to bear upon the
employee
(c) It was agreed without any circumstance vitiating consent
(d) Or it satisfactorily appears that the employee and the employer dealt with each other on a more or
less equal terms with no moral dominance exercised by the employer over the employee

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In fixed period employment, lack of notice of termination is of no consequence because when the contract
specifies the period of its duration, it terminates on the expiration of such period.
Even if an employee is engaged to perform activities that are usually necessary or desirable to the usual
business or trade of the employer, it does not preclude the fixing of employment for a definite period. But if an
employee is being renewed successively, it will result to regular employment.
Kung mo-hire ang employer og mga empleyado who will perform activities that are usually necessary or
desirable in the usual trade or business of the employer, unja gusto nija na fixed period ang employment, kinahanglan
maghimo ug contract specifying that their employment is only for a fixed period or term.
Absence of any contract specifying the type of employment, the employee shall be considered as regular
employee because he/she is performing activities necessary to the business of the employer.
Seafarers/Seaman:
Present jurisprudence states that SEAFARERS ARE CONTRACTUAL EMPLOYEES. They cannot be
considered as regular employees. Their employment is governed by the contract they sign every time they are rehired
and their employment is terminated when the contract expires. Their employment is contractually fixed for a certain
period of time.
They fall under the exceptions of the law.

6) PROBATIONARY EMPLOYMENT:
Article 295 Probationary Employment
Probationary employment shall not exceed six (6) months from the date the employee started working,
unless it is covered by an apprenticeship agreement stipulating a longer period. The services of an employee
who has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualify
as a regular employee in accordance with reasonable standards made known by the employer to the
employee at the time of his engagement. An employee who is allowed to work after a probationary period
shall be considered a regular employee.
Notes:
Who are Probationary employees?
They are those who are under observation by an employer, during which the employer determines whether or
not he/she is qualified for a permanent position.

What is the purpose why an employee is placed on a probationary status?


To observe or determine whether or not he or she is fit for the job.

Query: Unsa may importante aron ma-considered ang empleyado na probationary for six months?
Answer:
It is important that the reasonable standards must be made known to the employee by the employer at the
time of employees engagement.
The employer must inform the employee about his probationary status for 6 months and about the reasonable
standards required of him at the time of the employment. Failure by the employer to inform the employee results to
regular employment of the latter.
Query: Does probationary employee enjoys security of tenure?
Answer:
Yes, the maximum period for probationary employment is six months or 180 days. During this period, a
probationary employee cannot be terminated except for a just or authorized cause.
In addition, another ground for termination of a probationary employee is when he/she failed to meet the
reasonable standards set by the employer provided that prior to the 180th day, he/she must be informed that the same
failed to meet the standards for regular employment. Otherwise, upon the lapse of 180 days, said employee shall be
considered as regular employee.
There is no law that prohibits the granting of regular employment status to a probationary employee prior to
the six-month period, if the employee met the standards set by the employer.
Probationary period is for 6 months, applying article 13 of the Civil Code, the probationary period of 6 months
is equivalent to 180 days.
Query: May the employer and the employee validly agree to extend the probationary period beyond
Answer:
General Rule: No. It must be 6 months equivalent to 180 days.

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However, it can be extended upon waiver on the part of the employee when he is given the chance to improve his
performance or when the parties of the employment contract may agree otherwise such when the same is established
by the company policy or when the same is required by the nature of the work to be performed by the employee.

Probationary Period for Teachers;


Illustrative Case
Yolanda Mercado vs. AMACC,
The requirements:
1. The teachers must be a full-time teachers;
2. The teachers must have rendered 3 consecutive years of service and;
3. The service must be satisfactory.

In Yolanda Mercado vs. AMACC,


Mercado and others were faculty members who started teaching at AMA on May 25, 1998. For S.Y. 2000-2001
AMA Implemented new faculty screening guidelines. Under the new guidelines, teachers were hired based on
extensive teaching period, capability, potential, high academic qualifications and research background. The
performance guidelines were also used to determine the entitlement of salary increase. Petitioners merely obtain a
passing rate based on the performance standards. AMA did not give them salary increase. Hence, petitioner filed a
complaint with the arbitration branch of NLRC. Afterwards, the petitioners received a memorandum informing them
that with the expiration of their contract to teach, their contract will no longer be renewed.
[Ang nature sa employment sa mga teachers in this case is fixed-period employment because they were
made to sign contracts every year or per semester.
The Probationary Period for teachers is different from that of ordinary probationary employee. The
Probationary period for teachers is 3 consecutive years of service provided that they are full-time and the service is
satisfactory. After 3 years, pwede na sila ma-regular.
For college 9 consecutive trimesters or 6 consecutive semesters, for High school or elementary 3 consecutive
year of service.]
Petitioners contended that their dismissal was illegal for the same was made in retaliation for their money
claims against AMA. The additionally contended that AMA failed to give adequate notice, hence their dismissal is
ineffectual. Ang ilang teaching steps covers only 7 trimesters or 2 years and 3 months of service.
Was the teacher illegally dismissed?
[In a fixed period employment it is not necessary that the employer will inform the employee that his/her
contract had expired and his/ her service will no longer be needed. Dili na required ang notice sa employee for valid
termination]
The court ruled in this case that a reality we have to face in the consideration for employment status of
teaching personnel is that they are not governed purely by the labor code. The labor code is supplemented with
respect to the period of probation by special rules found in Manual of Regulations provided for Private Schools
The use of employment for fixed period during the teachers probationary period is likewise an accepted
practice in the teaching profession.
The common practice is for the employer and the teacher to enter into a contract effective for one (1) school
year. At the end of the school year, the employer has the option not to renew the contract considering the teachers
performance. If the contract is not renewed, the employment relationship terminates. If the contract is renewed for the
next school year, the probationary employment continues, provided the same will not exceed 3 years or 6 semesters
or 9 trimesters, otherwise said employee will become regular.
The court further ruled that probationary period should be reconciled with fixed period with regards to
teachers.
As part of the academic freedom of the school, it has the right to impose standards. These standards should
be known to the teachers on probationary status at the start of their probationary period or at the very least under the
circumstances of the case, at the start of the semester or trimester during which the probationary standards are to be
applied. Of critical importance in invoking the failure to meet the probationary standards is that the school should show
as a matter of due process how these standards have been applied.
Should the probationary character of the contract overlaps with the fixed period character of the contract, the
former should assume primacy and the latter should give way.
Thus, the dismissal of the employees in this case was invalidated because of the schools failure to inform the
teachers what are the standards that they have to meet and how these standards are applied.
[The recent 2014 case with respect to teachers:

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The teachers had finished the 6 consecutive semesters probationary period with satisfactory performance. However,
the teachers dismissal was upheld under the academic freedom of the school to set standards, such as to require a
certain Degree].

Temporary appointment:
Due process need not be observed in terminating temporary appointment and acting appointment.
These are appointments revocable at will. Jurisprudence show that one who holds temporary appointment has
no fixed tenure of office. Employment can be terminated at any time at the pleasure of the appointing authority
without need to show that it is for cause.

Bar Questions (set 10 Nos.1-24)


Tomas and Cruz have been employed for the last 22 years in various capacities on board the ships of BARKO
shipping Company. Their employment was made through a local manning company. They have signed several ten
(10) month employment contracts with BARKO Shipping. The NLRC ruled that they were contractual employees
and that their employment was terminated each time their contract expired. Is the ruling of the NLRC correct?
Explain fully.
Answer:
Yes. Article 280. Seafarers are contractual employees. They cannot be considered as regular employees.
Their employment is governed by the contract they sign every time they are rehired and their employment is
terminated when the contract expires.
They fall under the exception of ART 280 whose employment has been fixed for a specific project or
undertaking the completion or termination of which has been determined at the time of engagement of the employee
or where the work or services to be performed is seasonal in nature and employment is for the duration of the season.
How is the project worker different from a casual or contractual worker? Briefly explain your answers.
Answer:
A contractual worker is a generic term used to designate any worker covered by a written contract to perform
a specific undertaking for a fixed period.
A project worker is used to designate worker hired to perform specific undertaking for a fixed period coterminus with the project determined at the time of the engagement of the employee.
Casual worker refers to workers of job that is not desirable or necessary to the business or trade of the
employer and has not rendered service at least 1 year.
The services of an employee were terminated upon the completion of the probationary period of employment for
failure to qualify, for the position. The employee filed a complaint for illegal dismissal on the ground that the
employer failed to inform him in writing the reasonable standards for regular employment. Will the complaint for
illegal dismissal prosper?
Answer:
Yes. The employer must communicate the standards required of the employee by which he will qualify as
regular employee at the beginning of his employment. The reasonable standards must be known to the employee by
the employer at the time of the engagement.
What limitations, if any, do the law and jurisprudence impose on an employers right to terminate the services of a
probationary employee?
Answer:
The labor code provides that the services which have been engaged in probationary status may be terminated
for just and authorized causes or if an employee fails to qualify as a regular employee based on the reasonable
standards made known by the employer to the employee at the time of his engagement.
If the probationary employee is terminated through just cause he must be given due process. During the
probationary period, pwede ka ma dismiss for authorized and just causes but the procedural due process must be
complied with. However if the dismissal is based on failure to meet the reasonable standards, it is enough to inform
the employee that he failed to meet the standards. Due process is not necessary.
Distinguish the project employees from regular employees.
Answer:
Regular employee is one who performs activities necessary or desirable to the usual business or trade of the
employer or those who continues to render service for more than 1 year or those who were not terminated after the
probationary period. Project employees are those whose employment has been fixed on a specific project or
undertaking, the completion and termination of which has been determined at the time of the engagement of the
employee of that project employment.

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Mariano Martillo was a mason employed by the ABC Construction Company. Every time that ABC had a project, it
would enter into an employment contract with Martillo for a fixed period that coincided with the need for his
services, usually for a duration of three to six months.
Since the last project involved the construction of a 40-storey building, Martillo was contracted for 14 months.
During this period, ABC granted wage increases to its regular employees, composed mostly of engineers and rank
and file construction workers as a result of the just concluded CBA negotiations, feeling aggrieved and
discriminated against, Martillo and other similarly-situated project workers demanded that increases be extended
to them, inasmuch as they should now be considered regular employees and members of the bargaining unit. If
you were ABCs counsel, how would you respond to this demand?
Answer:
The demand has no legal basis because the employment of the petitioner is that of a project employment. The
fact that the work has gone beyond 1 year does not dissolve the status of the petitioners as project employees. The
years of service will not matter. Even if it exceeds 1 year it will not affect the project employment status of the worker
as long as the project is predetermined. He will become a regular employee only if the duration of the project is not
predetermined and there is rehiring.
Kitchie Tempo was one of approximately 500 production operators at HITEC Semiconductors, Inc. and exportoriented enterprise whose business depended on orders for computer chips from overseas. She was hired as a
contractual employee four years ago. Her contracts would be for a duration of five (5) months at a time, usually
after a one-month interval. Her re-hiring was contingent on her performance for the immediately preceding
contract.
Six months after the expiration of her last contract, Kitchie went to HITECs personnel department to inquire
why she was not yet being recalled for another temporary contract. She was told that her performance during her
last stint was below average.
Since there was no union to represent her, Kitchie seeks your advice as a labor lawyer about her chances of
getting her job back. What will your advice be?
Answer:
File a case of illegal dismissal and seek for reinstatement. Their repeated rehiring is sufficient evidence of
necessity or desirability to the usual trade or business of the employer. He shall be considered as regular employee
because there was a repeated rehiring.
Aldrich Zamora, a welder, was hired on February 1972 by Asian Contractors Corporation (ACC) for a project. He
was made to sign a contract stipulating that his services were being hired for the completion of the project, but not
later than December 30, 1972, whichever comes first.
After December 1972, Zamora, being a man of many talents, was hired for different projects of ACC in various
capacities, such as carpenter, electrician, and plumber. In all of these engagements, Zamora signed a contract
similar to his first contract except for the estimated completion dates of the project for which he was hired.
What is Zamoras status with ACC? Is he a contract worker, a project employee, a temporary or a regular
employee? State your reason.
Answer:
He is considered as regular employee. There was a successive and repeated rehiring and renewal of his
contract.
ILECO is an electric cooperative which accepted fresh graduates from a vocational school as lineman trainees for
six (6) months after which they were hired as probationary employees for another ten (10) months. Thereafter,
they were made regular employees. These employees then sought entitlement to salary increases under the
existing Collective Bargaining Agreement (CBA) which were given at the time when they were not yet regular
employees, hence, not yet regular members when the CBA took effect and therefore not entitled to wage
adjustment thereunder. Resolve the issue. Discuss fully.
Answer:
They are regular employees from the start of their employment. They cannot qualify as apprentice because
this requires a prior approve apprenticeship program. They also cannot qualify as probationary employee because
they were not informed of the standards to be met. They are considered as regular employee on the first day of
employment.
A Construction Group hired Engineer A as a Project Engineer in 1987. He was assigned to five (5) successive
separate projects. All five contracts of employment he signed specified the name of the project, its duration, and
the temporary-project nature of the engagement of his services. Upon completion of the fifth project in August
1998, his services were terminated. He worked for a total of ten (10) years (1987-1998) in the five separate
projects. Six months after his separation, the Group won a bid for a large construction project. The Group did not

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engage the services of Engineer A as a Project Engineer for this new project, instead, it engaged the services of
Engineer B.
Engineer A claims that by virtue of the nature of his functions, i.e., Engineer in a Construction Group, and
his long years of service he had rendered to the Group, he is a regular and not a project engineer at the time he
was first hired. Furthermore, the hiring of Engineer B showed that there is a continuing need for his services. Is
the claim of Engineer A correct?
Answer:
No. Engineer A is considered a project engineer because in his contract the project is specified. However he is
considered a regular employee because of repeated hiring and failure to rehire him amounts to illegal dismissal. When
there is repeated rehiring, the project employee is considered regular employee to avoid circumventing the concept of
regular employment.
Design Consultants, Inc. was engaged by the PNCC to supervise the construction of the South Expressway
Extension. Design Consultants, Inc. hired Omar as a driver for two (2) years. After his two-year contract expired,
he was extended another contract for nine (9) months. These contracts were entered into during the various
stages and before the completion of the extension project. Omar claims that because of these repeated contracts,
he is now a regular employee of Design Consultants Inc. is he correct? Explain briefly.
Answer:
Yes, he is already a regular employee. Take note that the project is not predetermined.
The principal test in determining a project employee as distinguish from a regular employee is whether or not
the project employees was assigned to carry out specific project or undertaking the duration of which were specified at
the time the employees was engaged for the project.
There is no showing that Omar was informed of the scope and duration of the project or undertaking at the
time of his engagement.
A carpenter is employed by a private University in Manila. Is the carpenter a regular or casual employee? Discuss.
Answer:
He is a casual employee if he did not rendered service for at least 1 year otherwise he is considered regular
even if carpenter performs an activity not necessary or desirable to the usual business or trade of the employer.
Savoy Department Store (SDS) adopted a policy of hiring salesladies on five-month cycles. At the end of a
salesladys five-month term, another person is hired as replacement. Salesladies attend to store customers, were
SDS uniforms, report at specified hours and are subject to SDS workplace rules and regulations. Those who
refuse the 5-month employment contract are not hired. The day after expiration of her 5-month engagement, Lina
wore her SDS white and blue uniform and reported for work but was denied entry into the store premises.
Agitated, she went on a hunger strike and stationed herself in front of one of the gates of SDS. Soon thereafter,
other employees whose 5-month term had also elapsed joined Linas hunger strike.
a) Lina and 20 other salesladies filed a complaint for illegal dismissal, contending that they are SDS regular
employees as they performed activities usually necessary or desirable in the usual business or trade of
SDS and thus, their constitutional right to security of tenure was violated when they were dismissed
without valid, just, or authorized cause. SDS, in defense, argued that Lina, et. al agreed to a fixed period
employment and thus waived their right to a full-term tenure. Decide the dispute
b) Assume that no fixed-term worker complained, yet in a routine inspection by a labor inspector, violations
to the labor codes security of tenure provision was found and the inspector recommended the issuance of
a compliance order. The regional director adopted the recommendation and issued a compliance order. Is
the compliance order valid?

Answer:
A.) There was no re-hiring. She was a saleslady for 5 months. She was in fixed period employment and it is
valid provided that the fixed period of employment was knowingly and voluntarily agreed upon by the
employee and absent any other improper pressure being brought to bear upon the employee and absent
any other circumstances vitiating consent or it appear that the parties dealt with each other on a more or
less equal terms with no more dominance exercise by the employer over the employee.
B.) Article 128, applies only if there is employment relationship. The RD can no longer issue compliance order
on favor of employees with expired contract because there is no longer employer-employee relationship. But if
the compliance order was issued when the contract was not yet expired the compliance order was valid.

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Super Comfort Hotel employed a regular pool of extra waiters who are called or asked to report for duty when the
Hotels volume of business is beyond the capacity of the regularly employed waiters to undertake. Pedro has been
an extra waiter for more than 10 years. He is also called upon to work on weekends, on holidays and when there
are big affairs at the Hotel. What is Pedros status as an employee under the Labor Code? Why? Explain your
answer fully.
Answer:
Regular Seasonal worker. There is repeated hiring every season. When the hotel will not rehire Pedro on such
season it amounts to constructive or illegal dismissal.
Diosdado, a carpenter was hired by Building Industries Corporation (BIC) and assigned to build a small house in
Alabang. His contract of employment specifically referred to him as a project employee, although it did not
provide any particular date of completion of the project. Is the completion of the house a valid cause for the
termination of Diosdados employment? If so, what are the due process requirements that the BIC must satisfy? If
not, why not?
Answer:
The requirement of project employment is that the project or undertaking is predetermined and no need to
specify the period and at the completion of project or undertaking he is automatically terminated.
True or False: Seafarers who have worked for 20 years on board the same vessel are regular employees.

Answer:
False. Seafarers are contractual employees. They cannot be considered as regular employees. Their
employment is governed by the contract they sign every time they are rehired and their employment is terminated
when the contract expires. Their employment is contractually fixed for certain period of time.
In her State of the Nation Address, the president stressed the need to provide an investor-friendly business
environment so that the country can compete in the global economy now suffers from a crisis bordering on
recession. Responding to the call, congress passed two innovative legislative measures, namely: (1) a law
abolishing the security of tenure clause in the labor Code and (2) a law allowing contractualization in all areas
needed in the employers business operations. However to soften the impact of these new measures, the law
requires that all employers shall obtain mandatory unemployment insurance coverage for all their employees. The
constitutionality of the two laws is challenged in court. As judge, how will you rule?
Answer:
A law abolishing security of tenure is unconstitutional because the security of tenure is a constitutional right of
the worker. But contractualization is not unconstitutional because it will not violate security of tenure. They cannot be
terminated within their contract period without just and authorized cause. Their right of security tenure is not impaired.
A was hired to work in a sugar plantation performing such tasks as weeding, cutting and loading canes, planting
cane points, fertilizing and cleaning the drainage. Because of his daily presence in the field was not required, A
also worked as a houseboy at the house of the plantation owner. For the next planting season, the owner decided
not to hire A as a plantation worker but as a houseboy instead. Furious, A filed a case for illegal dismissal against
the plantation owner. Decide with reason.
Answer:
He is already a regular seasonal worker because he is hired every season. The illegal dismissal case filed
against the plantation owner will prosper because he is already a regular worker because of the fact of rehiring every
season. Failure to rehire amounts to illegal dismissal.
The workers worked as cargadores as the warehouse and ricemills of Farm A for several years. As cargadores,
they loaded, unloaded and piled sacks of rice from the warehouse to the cargo trucks for delivery to different
places. They were paid by Farm A on a piece-rate basis. Are the workers considered regular employees?
a) Yes, because Farm A paid wages directly to these workers without the intervention of any third party
independent contractor;
b) Yes, Their work is directly related, necessary or vital to the operation of the farm;
c) No, because Farm A did not have the power to control the workers with respect to the means and
methods by which the work is to be accomplished;
d) A and B
Which of the following is correct with respect to the extent of the application of security of tenure?
a) It applies to managerial and all rank and file employees if not yet regular, but not to management trainees

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b) It applies to managerial and to all rank and file employees including those under probation
c) It applies to seasonal and project employees if they are hired repeatedly
d) It applies to all kinds of employees except those employed on a part-time basis.
For humanitarian reasons, a bank hired several handicapped workers to count and sort out currencies. The
handicapped workers knew that the contract was only for a period of six-months and the same period was
provided in their employment contracts. After six months, the bank terminated their employment on the ground that
their contract has expired. This prompted the workers to file with the Labor Arbiter a complaint for illegal dismissal.
Will their action prosper? Why or why not?
Answer: The action will not prosper. They are being hired on a fixed period employment.
Mr. Del Carmen unsure if his foray into business ( messengerial service catering purely to law firms) would
succeed but intending to go long-term if he hurdles the first year, opted to open his operations with one-year
contracts with two law firms although he also accepts messengerial service requests from other firms as their
orders come. He started with one permanent secretary and six messengers on a one-year, fixed-term, contract. Is
the arrangement legal from the perspective of labor standards?
a. No, because the arrangement will circumvent workers right to security of tenure.
b. No. If allowed, the arrangement will serve as starting point in weakening the security of tenure
guarantee.
c.

Yes, if the messengers are hired through a contractor.

d. Yes, because the business is temporary and the contracted undertaking is specific and timebound.
e. No, because the fixed-term provided is invalid.

Mr. Ortanez has been in the building construction business for several years. He asks you, as his new labor
counsel, for the rules he must observer in considering regular employment in the construction industry.
You clarify that an employee, project or non-project, will acquire regular status if _______. (1%)
a. he has been continuously employed for more than one year
b. his contract of employment has been repeatedly renewed, from project to project, for several
years
c.

he performs work necessary and desirable to the business, without a fixed period and without reference
to any specific project or undertaking

d. he has lived up to the companys regularization standards


e. All of the above.

Aleta Quiros was a faculty member of BM Institute, a private educational institution. She was hired on a year-toyear bsis under the probationary employment period provision of the Manual of Regulations for Private Schools.
The terms and conditions of her engagement were defined under her renewable yearly contract. For reasons of its
own, BM Institute no longer wanted to continue with Aletas teaching sevices. Thus, after the contract for her

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second year expired, BM Institute advised Aleta that her contract would no longer be renewed. This advice
prompted Aleta to file a complaint for illegal dismissal against BM Institute. Will the complaint prosper? (1%)
a. Yes, because no just or authorized cause existed for the termination of her probationary
employment.
b. Yes, because under the Labor Code, Aleta because a regular employee after 6 months and she may
not only be dismissed for cause.
c.

No, because there was no dismissal to speak of. Her employment was automatically terminated upon
the expiration of her year-to-year fixed term employment.

d. No, because BM Institute may dismiss its faculty members at will in the exercise of academic
freedom.
e. No, because Aleta was still on probationary employment
(See the case of Yolanda Mercado vs. AMACC)
Lucy was one of approximately 500 call center agent at Hambergis, Inc. She was hired as a contractual employee
four years ago. Her contracts would be for duration of five (5) months at a time, usually after a one month interval.
Her rehiring was contingent on her performance for the immediately preceding contract. Six (6) months after the
expiration of her last contract, Lucy went to Hambergis personnel department to require why she was not yet
being recall to work. She was told that her performance during her last contact was below average. Lucy seeks
your legal advice about her chances of getting her job back. What will your advice be?
Answer:
I will advise Lucy to file a complaint of illegal dismissal. The repeated rehiring of Lucys services for four years
are sufficient evidence that she performed activities necessary or indispensable to the usual business or trade of
employer. She is considered a regular employee because of the fact of repeated rehiring. As provided by law,
successive renewal of fixed period employment will result in a regular employment. Lucy is performing activity
necessary or desirable to the usual business of Hambergis.
MANAGEMENT RIGHT AND THE JUST CAUSES OF TERMINATION.
One of the management prerogatives is the right to dismiss but the same is subject to the regulation of the
state in such a way that an employee can only be dismissed on just causes or authorized causes. So these are the
limitations with respect to the right of the management to dismiss an employee.
Art. 296 Termination by Employer
An employer may terminate an employment for any of the following causes:
(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or
representative in connection with his work;
(b) Gross and habitual neglect by the employee of his duties
(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized
representative;
(d) Commission of a crime or offense by the employee against the person of his employer or any
immediate member of his family or his duly authorized representative; and
(e) Other causes analogous to the foregoing.
Notes:
JUST CAUSES OF TERMINATION:
1) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or
representative in connection with his work;
What is Serious Misconduct?
It is the transgression of some established and definite rule of action, a willful dereliction of duty, and
implies a wrongful intent and not mere error in judgment.

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The misconduct to be serious, it must be grave and aggravated in character. In addition, in order to
consider it a serious misconduct that would justify dismissal under the law, the same must be done in
connection with the employees work; it must be done in relation to the performance of his duty as would show
him to be unfit to continue working for his employer.
Examples:
a. the act of the employee in throwing a stapler and uttering abusive language upon the person of the
manager;
This may be considered from a laymans perspective a serious misconduct. However, it is not
the serious misconduct that will justify his dismissal from employment. Because in order to
consider it as a serious misconduct that would justify his dismissal under the law, it must have
been done in relation to the performance of his duties as would show him to be unfit to continue
working for his employer
Not all serious misconduct can fall under paragraph (a) of Art. 296. To be considered
misconduct, it must be in connection with the performance of ones duties.

as

serious

b. Use of Drugs;
This is considered as a serious misconduct. Instigation, according to the Supreme Court, is only
a defense against criminal liability. It cannot be used as a shield against dismissal from
employment especially when the position involves safety of human lives. [This pertains to a
case which involves a mechanic of PAL who was found to be using drugs.]
c.

Immorality
GENERAL RULE: Immorality is NOT a just ground to terminate employment.
EXCEPTION: When such immoral conduct is prejudicial or detrimental to the interest of the
employer.
The standards to be used to determine whether the immoral conduct adversely affects the
interest of the employer is whether the immoral act is of such nature which may be considered
or calculated to undermine or injure such interest or which would make the worker incapable of
performing his work.
An example given is that involving a teacher.
Immorality was define as a course of conduct which offends the morals of the community
and is a bad example to the youth whose ideals a teacher is supposed to foster and to
elevate the same including sexual misconduct.
Although as a general rule, immorality is not a serious misconduct that will justify ones
termination from employment, there are professions wherein immorality is considered as a
serious misconduct. One of this is that of a teacher.
Thus, the seriousness of the charges against the teacher stemmed from being a married
man and at the same time a teacher.
Therefore, when a teacher engages in extra-marital relationship especially when the parties
are both married, such behavior amounts to immorality, justifying his dismissal from
employment.
Illustrative Case:
Chua-Qua vs. Clave [1990]
This case involves a teacher who fell in love with her student who is almost half of her age.
The Supreme Court considered it as not a serious misconduct that would warrant the
dismissal of the teacher from employment because there was no evidence which shows that
immoral acts were committed and that the teacher took advantage of her position to court her
student. In termination cases, the burden of proving just and valid cause for dismissing an
employee rests on the employer and his failure to do so would result in a finding that the dismissal
is unjustified.
If the two fell in love to each other despite the disparity of their ages and academic level, this
only, leads substance to the truism that the heart has reasons of its own that reason does not
know.

d. Sexual Harassment
A form of serious misconduct
What is Willful Disobedience?

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It is commonly known as insubordination. However, the law does not use the term insubordination
but instead willful disobedience.
It is the employers prerogative to prescribe reasonable rules and regulations necessary or proper for
the conduct of its business, to provide certain disciplinary measures to implement said rules and to assure that
the same be complied with.
In order that the willful disobedience by the employee may constitute a just cause for terminating his
employment, the orders, regulations, or instructions of the employer or representative must be:
1. reasonable and lawful;
Meaning, the kind and character of direction and command must be reasonable and lawful;
and disobedience must relate to substantial matters.
2. Sufficiently known to the employee;
3. in connection with the duties which the employee has been engaged to discharge
4. In addition, for disobedience to constitute a just cause for termination, said conduct must be willful
or intentional, meaning there is a wrongful and perverse attitude.
Transfer
An employee has a security of tenure but this does not give him/her such vested right on his/her
position as to deprive the employer to transfer or change his/her assignment where his/her service will be
most beneficial to the employers client.
The right of the employer to transfer the employees in the interest of the efficient and economic
operation of its business cannot be seriously challenged. It is a management prerogative. The only time the
employer cannot exercise this right is where it is vitiated by improper motive and is merely a disguised attempt
to remove or punish the employee sought to be transferred.
Therefore, considering that transfer is a valid exercise of management prerogative, an employee who
refuses to be transferred when such transfer is valid, is guilty of willful disobedience because the same
constitutes willful disobedience of a lawful order of an employer.
An employee who refuses to comply with a transfer order can be dismissed from employment on
ground of willful disobedience.
Requirements for Transfer;
a) it must not amount to constructive dismissal;
b) it must not involve a demotion in rank or diminution of salary, benefits and other privileges;
c) it must not be motivated by discrimination, made in bad faith, or effected as a form of punishment or
demotion without sufficient cause.
Mere title or position held by an employee in a company does not determine whether a transfer
constitutes demotion. Rather, it is the totality of the following circumstances;
a) economic significance of the work;
b) duties and responsibilities conferred; and
c) rank and salary of the employee
Inconvenience
Inconvenience to the employee does not necessarily invalidate a transfer order. But if an employee is
being transferred abroad, it cannot be liken to a transfer from one city to another within the country.
Thus, in this case the employee can validly refuse the transfer order.
Transfer coupled with Promotion
A transfer becomes unenforceable if the transfer is coupled with or is in the nature of a promotion,
where the promotion is rejected by the employee. Thus the employee can refuse the transfer order
because no one is compelled to accept a promotion.
An employee has the right to refuse promotion. There is no law which compels an employee to accept
a promotion because it is in the nature of a gift or s reward.
*Rules against Marriage*
Under the Labor Code, it shall be unlawful for an employer to require as a condition of employment or
continuation of employment that a woman employee shall not get married, or to stipulate expressly or
tacitly that upon getting married a woman employee shall be deemed resigned or separated, or to
actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason
of her marriage.

In one case, there was a company policy which requires an employee to disclose to the
company existing or future relationship with an employee of a competing job company and should the
management found that the same would cause possible conflict of interest, the employee is require to
resign voluntarily.

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Issues:
What if the employee violates the policy? Would that constitutes willful disobedience
considering that under the labor code, it is prohibited for an employer to discriminate an employee by
reason of marriage?
Ruling:
The court considered it as a valid exercise of management prerogative. The prohibition
against personal or marital relationships with employees of competitor companies upon its employees
is reasonable under that circumstance. Relationships of that nature might compromise the interest of
the company. In laying down the assailed company policy, the employer only aims to protect its interest
against the possibility that a competitor company will gain access to its secrets and procedures. Thus,
violation to the policy would constitute willful disobedience which may justify the termination of
employment.
*Points to take note na permi ipangutana sa Bar Exam; [with regards to willful disobedience]*
a) Transfer orders;
Is refusal to a transfer order constitutes willful disobedience?
Gen. Rule:
Yes, because transfer is a valid exercise of management prerogative.
Inconvenience is not a valid reason to defy a transfer order.
Exceptions;
When the transfer is coupled with promotion; and the employee rejected the promotion.-transfer is
unenforceable
When the employee is transferred abroad
2) Gross and habitual neglect by the employee of his duties;
Gross Negligence:
It is the absent of that diligence that an ordinary prudent man would use in his own affairs.
In order to constitute a just cause for the employees dismissal, the neglect of duties must not only be
gross but also habitual.
To be considered gross and habitual, it must not be mere single or isolated acts of negligence.
To justify the dismissal of an employee for neglect of duties, it is not necessary that the employer has
incurred actual loss, damage or prejudice by reason of the employees conduct. It is sufficient that the gross
and habitual neglect by the employee of his duties tends to prejudice the employers interest.
In one case, involving again a teacher, the school sponsored a swimming activity for grade six
students. One of the students died from drowning. The teacher, who was in charge of the activity, was
dismissed from employment on ground of gross and habitual neglect of duty. The teacher in defense
contended that he cannot be dismissed on ground of gross and habitual neglect of duty because it was just a
single incident.
But the Supreme Court affirmed the dismissal and ruled that the element of habituality may be
disregarded when the damage or loss is SUBSTANTIAL.
As a general rule, for a neglect of duty to be considered gross and habitual, it must not be a mere
single or isolated act of negligence. However, the element of habituality may be disregarded when the
damage or loss is substantial.

Illustrative Case
LBC Express Manila vs. James Mateo
In this case, ang involved na employee is kanang tig-delever sa LBC. Ang motor na gigamit sa
employee sa pagdeliver gikawat. Because of that, he was dismissed from employment on the ground of gross
and habitual neglect of duty. Ang ijang defense is that he cannot be dismissed from employment on ground of
gross and habitual neglect of duty tungod kay kausa raman sija gikawatan/nawad-an og motor.
But the Supreme Court ruled that the dismissal was valid. The court took into consideration the value
of the lost property. In this case, what was lost was a motorcycle which was stolen when the employee failed
to lock the steering wheel.

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The degree of skill, care, diligence and attention imposed by the implied possession of competency,
knowledge, skillfulness of the employee is that of an ordinary and reasonable skill, care and diligence. He
cannot be discharged on the ground of incompetency, negligence, merely because he fails to employ the
highest degree of skillfulness and care known in the trade, unless the contract of employment expressly
stipulates for such degree of skill and care or unless the employee represents that he possesses such.
*Abandonment*
Abandonment is a form of neglect of duty.
To constitute abandonment, there must be a clear and deliberate intent to discontinue ones
employment without any intention of returning back.
It is not enough that the employee fails to report for work or the employee was absent for a
considerable period of time. What is important is that to justify abandonment, there must be a clear and
deliberate intent to discontinue ones employment without any intention of returning back.
Query: An employee failed to report for work because he was imprisoned. But the employer did not know that
said employee was imprisoned. Would this constitute abandonment?
Answer:
No. In the case given, there was failure to report for work but in order to constitute abandonment, there
must be a clear intent to discontinue ones employment without any intention of returning back. Since his
failure to report for work was due to his imprisonment there is no intent to discontinue his employment. Thus,
there is no abandonment.
Element of abandonment:
a) failure to report for work or absence without valid or justifiable reason; and
b) Clear intention to discontinue ones employment w/out any intention of returning back.
The filing by an employee of a complaint for illegal dismissal is proof enough of his desire to return to
work, thus negating the employers charge of abandonment.
In fact, lapse of time between dismissal and filing of a case is not a material indication of
abandonment.
Tardiness and Absenteeism
Tardiness and absenteeism, like abandonment is a form of gross and habitual neglect of duty.
The mere fact that the numerous infractions of an employee have not been immediately subjected to
sanctions cannot be interpreted as condonation of the offenses or waiver of the company to enforce
company rules.
A rule with respect to tardiness and absenteeism states that if one has already been meted appropriate
penalty for his previous tardiness and absenteeism, it can no longer be used as basis for his dismissal
from service. To do so would put him to penalty twice for the same offense.

In one case, the employee was not being paid on days he was absent and gikuhaan pud ijang
sweldo on days na late sija. Karon kay sige man sija ug absent ug sige pud ka late, permi pud
gikuhaan ijang sweldo. Subsequently, he was dismissed from employment on ground of gross
and habitual neglect of duty. As a defense, ija gigamit ang rule which states that if one has
already been meted appropriate penalty for his previous tardiness and absenteeism, it can no
longer be used as basis for his dismissal because to do so would put him to penalty twice for the
same offense. Ijang contention is tungod kay gikuhaan na ang ijang sweldo, dili na pwedeng
gamiton ang ijang mga violations as basis for his dismissal.
But the Supreme Court ruled that non-payment of the daily wage on days employee is absent
cannot be considered a penalty. Therefore, the same may be used as basis for his dismissal
from service. (Kung suspension pa hinuon to, pwede to i-consider na penalty.)

3) Fraud or willful breach by the employee of the trust repost in him by his employer or duly authorized
representative;
Dishonesty and Loss of Confidence
To constitute a just cause for terminating the employees services, the fraud must be committed
against the employer or representative and in connection with the employees work.(Dili tanang empleyado
pwede ma-dismiss under this no.3 nga just cause for dismissal.)
Loss of confidence should apply only to;
a) Cases involving employees occupying position of trust and confidence;

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b) Those situations where the employee is routinely changed with the care and custody of the employers
money or property.
Examples:
a) Cashiers
b) Conductor
In one case the court ruled that a conductor may be dismissed on ground of dishonesty and loss
of confidence because the same is charged with the care and custody of the employers money.
Even if the employer did not suffer losses from the dishonesty of the dismissed employee, because of
his timely discovery it will not excuse the latter from any culpability.
Proof Requirements:
In dismissing an employee on ground of dishonesty and loss of confidence, distinction must be made
between managerial employees and rank and file employees.
a) When it involves rank and file personnel, the same requires proof of involvement in the alleged events
in question and that mere uncorroborated assertions and accusations by the employer will not be
sufficient.
b) When it involved managerial employees the mere existence of a basis for believing that such
employee has breached the trust of his employer would suffice for his dismissal.
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;
The immediate members of the family referred to are limited to spouse, ascendants, descendants, or
legitimate, natural, or adopted brother or sisters of the employer or of his relative by affinity in the same
degrees, and those by consanguinity w/in the fourth civil degree.
Conviction is not necessary and the fact that a criminal complaint was dropped by the prosecutor is
not binding and conclusive upon the labor tribunal.
5) Analogous Causes
For an act to be considered falling under the analogous causes, it must be due to the voluntary and willful act
or omission of the employee.
Analogous Causes should be that which arose from employees culpability or commission of a wrongful act.
(As a rule, bisan pa ug unsa ka serious ang misconduct sa usa ka empleyado basta not in connection
with the performance of his duties, DILI na sija mo-fall under No. 1, thus dili pwede i-dismiss ang empleyado
on ground of serious misconduct. Pero pwede sija i-dismiss under No.5-Analogous Causes.)
Example:
Usa ka empleyado sa CM nagwala or nanghasi sa canteen kay gisapot. Dili sija ma-dismiss sa
employment under No.1 (serious misconduct) kay not in connection man sa ijang work pero pwede sija idismiss under No. 5 (Analogous Causes.)
Examples of Analogous Causes;
a) Theft of company property
Usa sa mga policy sa mga Department Stores is that dili pwede dalhon sa mga empleyado ang
mga sobra na produkto bisan pa ug magamit pa. Gidala sa usa ka retirable na employee sa
RUSTANS ang usa ka produkto na dili na pwede ibaligya pero magamit pa. Gi-upheld og gi-justify
sa Supreme Court ang dismissal sa empleyado under Analogous Causes.
b) Enforcement of the closed-shop provision of the CBA;
c) Dismissal of union officers who knowingly participate in an illegal strike and workers who knowingly
participate in the commission of illegal acts during the strike;
d) Theft of property of another employee;
e) Attitude problem;
f) Failure to attain work quota;
g) Failure to comply with the weight standards
PAL case involving Flight attendant (Bonafide Occupational Qualification Rule)
PROCEDURAL DUE PROCESS FOR JUST CAUSES: (twin notice and hearing)
1. Written Notice (1st notice)

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A written notice must be served on the employee specifying the ground or grounds for termination,
and giving to said employee reasonable opportunity within which to explain his side.
The first notice to be served on the employee should contain the specific causes or grounds for
termination against them and a directive that the employees are given the opportunity to submit their
written explanation within a reasonable period of time.
The notice must state with particularity the acts and omissions for which the employee is being
charged.
Memorandum will NOT suffice if it is stated in general terms.
Mere warning is NOT sufficient.
In the first notice, the employee must be informed that there will be an investigation and if proven, it
will result to his dismissal. The notice must not only contain a plain statement of charges of
malfeasance or misfeasance but must categorically state the effect on his employment if the charges
are proven to be true.
AGAIN:
Contents of the first notice:
a) specific grounds for termination
specific acts and omissions
b) it must state that there will be an investigation wherein the employee will be given reasonable
opportunity to explain his side;
c) It must also state the effect of the investigation on his employment should the charges are proven to be
true. (see: Aldeguer and Company vs. Honeyline Tumbok)
2. Hearing or Conference
There must be a hearing or conference during which the employee concerned, with the assistance of
counsel if the employee so desires is given opportunity to respond to the charge, present his evidence
or rebut the evidence presented against him;
The hearing need not be a trial type hearing.
The right against self-incrimination may not be invoked.
The exclusionary rule (art. III sec.3 par. 2 of 1987 constitution) will NOT be applicable.
The employee concerned may not be given a chance to confront the witness presented against
him/her because this is different from a criminal case. According to the Supreme Court the right to
confront the witness is required only in adversarial criminal prosecutions and not in company
investigations for the administrative liability of the employee.
Confrontation before the Barangay Council does not constitute the first notice and hearing required
because in the barangay, assistance of a counsel is prohibited. But in the conference, the employee
can have the assistance of a counsel if he so desires.
3. Written Notice of Termination (2nd notice)
A written notice of termination must be served on the employee indicating that upon due consideration
of all the circumstances, grounds have been established to justify his termination.
The dismissal of an employee must be based on the same ground cited on the first notice because if
he is being dismissed on ground different from the first notice, he is deemed to have been deprived of
procedural due process.
Notice should be served on the employees last known address and that notice posted in the bulletin
board or newspaper is not sufficient. If the notice is not accepted, it should be sent by registered mail.
Query: Can previous offenses be used as a valid justification for dismissal?
Answer:
Yes, but the same must be related to the subsequent infraction as basis of the termination of
employment. Previous infractions, in other words, may be used if they have a bearing on the proximate
offense warranting dismissal.
Query: Can Preventive Suspension replace the twin notice and hearing requirement?
Answer:
No, it cannot be considered adequate notice of the charges since it does not apprise the employee of
the causes of his dismissal. Likewise, the subsequent investigation is not the ample opportunity to be heard
contemplated by law.

Procedural due process Twin notice and hearing requirement cannot be wiped away by a union security
clause in the CBA. Although there is a union security clause, this requirement must really be complied with.

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When is hearing not required?


a) No hearing is needed if the employee has already admitted his guilt or his responsibility for the act he was
accused of.
b) In case of project employment termination upon completion of the project or phase thereof for which the
employee is hired, no hearing is required unless there is dismissal of a project employee prior to the
completion of the project.
c) No hearing is required upon termination of the probationary period of employment.
What is required is that the employee was informed beforehand what are the standards to be met and a
notice prior to the expiration of the 6-month period that the employee failed to meet the standards.
Except in case of dismissal of a probationary employee prior to the expiration of the probationary period.
In case of commission of infractions by an employee, dili kinahanglan ug dismissal. Prerogative na sa employer
kung suspension ra ang ijang i-impose. Dili mapugos ang employer to impose dismissal.
Basis of the procedural due process in just causes for terminating an employment twin notice and hearing:
Art. 291 (b) Subject to the constitutional right of workers to security of tenure and their right to be protected
against dismissal except for a just and authorized cause and without prejudice to the requirement of notice under
Article 283 of this Code, the employer shall furnish the worker whose employment is sought to be terminated a written
notice containing a statement of the causes for termination and shall afford the latter ample opportunity to be heard
and to defend himself with the assistance of his representative if he so desires in accordance with company rules and
regulations promulgated pursuant to guidelines set by the Department of Labor and Employment. Any decision taken
by the employer shall be without prejudice to the right of the worker to contest the validity or legality of his dismissal by
filing a complaint with the regional branch of the National Labor Relations Commission. The burden of proving that the
termination was for a valid or authorized cause shall rest on the employer. The Secretary of the Department of Labor
and Employment may suspend the effects of the termination pending resolution of the dispute in the event of a prima
facie finding by the appropriate official of the Department of Labor and Employment before whom such dispute is
pending that the termination may cause a serious labor dispute or is in implementation of a mass lay-off.
Take Note:
The Secretary of Labor may suspend the effects of the termination if the same may cause a serious labor
dispute or is in implementation of a mass layoff.

*Preventive Suspension*
The employer may place the worker concerned under preventive suspension if his continued employment
poses a serious and imminent threat to the life or property of the employer or of his co workers.
NO preventive suspension shall last longer than thirty (30) days. After that period, the employer shall reinstate
the worker in his former position or in a substantially equivalent position or the employer may extend the
period of suspension, provided that during the period of suspension, he pays the wages and other benefits
due to the worker.
If the suspension exceeds the 30-day period without any corresponding action on the part of the employer, the
same amounts to constructive dismissal. (pwede na maka-file og complaint for illegal dismissal ang employee
concerned.)
NOTE:
In construction industry, the maximum period for preventive suspension is only 15 days.
AUTHORIZED CAUSES FOR TERMINATION
Article 297 Closure of establishment and reduction of personnel.
The employer may also terminate the employment of any employee due to the installation of laborsaving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the
establishment or undertaking unless the closing is for the purpose of circumventing the provisions of this
Title, by serving a written notice on the workers and the Ministry of Labor and Employment at least one (1)
month before the intended date thereof. In case of termination due to the installation of labor-saving devices
or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent to at least his one
(1) month pay or to at least one (1) month pay for every year of service, whichever is higher. In case of
retrenchment to prevent losses and in cases of closures or cessation of operations of establishment or
undertaking not due to serious business losses or financial reverses, the separation pay shall be equivalent
to one (1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher. A
fraction of at least six (6) months shall be considered one (1) whole year.

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Article 298 Disease as ground for termination.


An employer may terminate the services of an employee who has been found to be suffering from any
disease and whose continued employment is prohibited by law or is prejudicial to his health as well as to the
health of his co-employees: Provided, That he is paid separation pay equivalent to at least one (1) month
salary or to one-half (1/2) month salary for every year of service, whichever is greater, a fraction of at least six
(6) months being considered as one (1) whole year.
Notes:
1) Installation of labor-saving devices:
In order to validly invoke this ground, the following requisites must be present;
a) it must be done in good faith;
b) the purpose of such introduction must be valid such as to save on cost, enhance efficiency and
other justifying economic reasons;
c) there is no other option available;
d) there should be payment of separation pay
In installation of labor-saving devices, the employer need not show that it suffers losses or imminent
losses.
2) Redundancy;
It exists where the services of an employee are in excess of what is reasonably demanded by the actual
requirements of the enterprise.
It is the management that determines what services are no longer necessary. This is a valid exercise of
management prerogative.
In order to validly invoke this ground;
a) there must be payment of separation pay;
b) it must have been done in good faith;
c) There must be fair and reasonable criteria in determining what positions are to be declared
redundant and accordingly abolished.
Basically, the Supreme Court gives the management wide discretion to determine what positions are
considered redundant.
Just like installation of labor-saving devices, redundancy does not require the exhibition of proof of
losses or imminent losses.
3) Retrenchment
It is one of the economic grounds resorted to by an employer to terminate employment primarily to avoid
or minimize business losses.
Requisites of valid Retrenchment;
a) The retrenchment is necessary to prevent or minimize losses and such losses are proven;
b) the losses must be substantial and imminent;
c) retrenchment is reasonably necessary;
meaning, the employer had already taken other measures prior to retrenchment but still
losses continues;
d) losses must be proven;
Thus, financial statements of the company must be audited by external auditors.
*Preventive Retrenchment*
Is this allowed?
Yes. Actual losses do not have to happen before the employer may do the saving act.
Requisites:
a) The losses expected must be substantial and not merely de minimis in extent.
b) The substantial loss apprehended must be reasonably imminent as such imminence can be perceived
objectively and in good faith by the employer.
c) Said preventive retrenchment must be reasonably necessary and likely to effectively prevent the
expected losses;
d) The alleged losses if already realized and the expected imminent losses sought to be forestalled must
be proven by sufficient and convincing evidence.
(Ang dapat timan-an sa retrenchment, kinahanglan naay losses. The losses must be substantial. So,
financial statements of the company must be audited by external auditors. Pwede pud ang preventive
retrenchment provided present ang mga requisites.)

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4) Closure of Business;
There are generally no requisites for a valid closure of a business. An employer can close his business
for any reasons.
Ang issue ra about closure of business is the payment of separation pay. Why? It is because;
a) If the closure of the business is due to serious business losses or financial reverses, the employer
need NOT pay separation pay.
b) If the closure of the business is due to other reasons or other grounds, the employer is required to
pay separation pay.
Closure by Act of the Government;
Illustrative Case:
National federation of labor vs NLRC, GR No. 127, 718, March 2, 2000
(If the closure was due to the act of the government to benefit the petitioners, as members of the
Patalon Estate Agrarian Reform Association, by making them agrarian lot beneficiaries of said estate, the
terminated employees are not entitled to separation pay.)
In this case, the employees were agrarian lot beneficiaries of the estate. Nag-close ang establishment
simply because ang mga yuta gi-award na man sa mga employees as agrarian estate beneficiaries.
Pursuant to the closure, the employees ask for the payment of separation pay.
But the court ruled against them. Anent the legality of the labor arbiters decision to award separation
pay in favor of petitioners, respondent NLRC correctly ruled that the termination of employer-employee
relationship as a result of the implementation of the comprehensive agrarian reform law does not make of a
case for illegal dismissal. The closure of business operations contemplated under the law refers to a
voluntary act or decision on the part of the employer and not that which is forced upon the employer by an
act of the law or state to benefit the employees.
The resulting severance of employment relationship between the parties came about involuntarily. If the
landowners ceased their operation, it was not because they wanted to; rather, it was something forced upon
them by an act of law or state. It would be the height of injustice and inequity if the workers who benefited
from the takeover of the lands and becoming new owners in the process would still be allowed to exact
payment from their former employer landowner in the form of separation pay. That would be tantamount to
dealing a double wammy against the landowner who was forced to relinquish ownership of his land by an
act of the state.
Partial Closure:
The court has also recognized the managements prerogative to close or abolish a department or
section of the establishment for economic reasons. The court reasoned out that since the greater right to close
the entire establishment and cease operations due to adverse economic conditions is granted to an employer,
the closure of a part thereof to minimize expenses and reduce capitalization should similarly be recognized.
Ordinarily, the closing of a warehouse facility and the termination of the services of employees there
assigned is a matter that is left to the determination of the employer in the good faith exercise of its
management prerogatives. The applicable law in such a case is Art. 297 of the Labor code which permits
closure or cessation of operation of an establishment or undertaking not due to serious business losses or
financial reverses which includes both the complete cessation of operations and the cessation of only part of a
companys activities.
Relocation of business
Is it considered closure?
Yes, thus employees are entitled to separation pay.
In one case, the business site was originally in Makati but it was transferred to Sto. Tomas, Batangas.
The employee did not anymore move to Sto. Tomas Batangas, instead, he asks for the payment of separation
pay on the ground of closure of business. The employer refused to pay the separation and contended that
there was no closure of business but only a relocation of business.
The Supreme Court ruled that even though the transfer was due to a reason beyond its control, the
employer has to accord its employee some relief in the form of severance pay. Broadly speaking, there
appears no complete dissolution of petitioners undertaking but the relocation of its plant to Batangas amounts
to cessation of petitioners business operation in Makati.
It must be stressed that the phrase closure or cessation of operation of establishment or undertaking
not due to serious business losses under the labor code includes both the complete cessation of all business
operation and the cessation of only part of a companys business.

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[Thus, relocation is considered closure and kung kinsa tong employee na dili mosunod sa relocation
is entitled to separation pay]
Sale in Good Faith:
Rule:
The purchaser has no legal obligation to continue employing the employees of the seller. Thus, the
seller is obliged to pay his employees separation pay and other benefits.
If the sale is in bad faith, the purchaser is obliged to continue employing the employees of the seller.
Sale is different from merger because in merger, there is succession of employment rights and
obligations occurs between the absorbing corporation and the employees of the absorbed corporation. The
absorbing corporation retains the employees of the absorbed corporation. This like-wise applies to
consolidation.
5) AILMENT OR DISEASE [art. 298]
Under this ground, the employee suffers from a disease and his continued employment is prohibited
by law or prejudicial to his health or to the health of his co-employees.
Requirement:
There must be a certification by a competent public health authority that the disease is such nature or
at such stage that it cannot be cured within a period of six months even with proper medical treatment.
Competent public health authority refers to a government doctor whose medical specialization
pertains to the disease being suffered by the employee. For instance an employee who is sick of
tuberculosis, he should consult a government employed pulmonologist who is competent to make an
opinion thereon. If the employee has a cardiac symptom, the competent physician would be a
cardiologist.

PROCEDURAL DUE PROCESS FOR AUTHORIZED CAUSES;

Service of a written notice to the employee and DOLE Regional Office at least thirty (30) days before the
effectivity of the termination, specifying the ground or grounds for termination.

Rationale for giving notice to DOLE:


In order for DOLE to ascertain the veracity and truth of the cause of termination.
Rationale for giving notice to employee:
In order for the employee to contest the factual basis of the managements decision and to give time for the
employee to find another job.
Take Note:
Compliance of the notice rule is mandatory regardless of whether the retrenchment is permanent or
temporary.
no hearing is required
notice of closure posted in the bulletin board is NOT sufficient
Nothing in the law gives the employer the option to substitute the required prior notice with payment of 30
days salary. Indeed, a job is more than the salary it carries. Payment of 30 days salary cannot compensate
for the psychological effect or stigma of immediately finding oneself laid-off from work.
If the employee voluntarily applied for the retrenchment, no notice to DOLE is necessary.
Similarly, completion of contract or project, notice to DOLE is not necessary.
The twin-notice rule cannot be waived
Separation Pay: Payment
For termination because of introduction of labor-saving device or of redundancy;
the separation pay is equivalent to
a) one month pay; or
b) one month pay multiplied by the employees years of service, a fraction of at least six months
being counted as one year: whichever is higher

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For termination caused by retrenchment, closure or cessation of operations not due to serious business losses or
disease;
the separation pay is equivalent to whichever is higher of either;
a) one-month pay; or
b) One-half month pay multiplied by the employees years of service, a fraction of at least six
months being considered as 1 year.
Take Note:
If the closure or cessation of business is due to serious business losses or financial reverse, no separation
pay need be paid at all.
As to the question of what composes separation pay, take note of the case of Songco.
CONSEQUENCES OF TERMINATION:
1. First Situation:
Just causes + Procedural Due Process = Valid Dismissal
Query: In this case, is the employer required to pay separation pay?
Answer:
Gen. Rule:
NO. If the dismissal is for a just cause, no separation pay is to be paid.
Exception:
If the act committed by the employee does not amount to serious misconduct or does not reflect on
the employees moral character or personal integrity, the court may require the employer to pay
separation pay as a measure of social justice or financial assistance to the employee.
The amount of the financial assistance rest on the sound judgment of the adjudicating authority
weighing the peculiar circumstances of case.

Authorized causes + Procedural due process = Valid Dismissal

Separation pay is required except when the closure is due to serious business losses or financial
reverses.

2. Second Situation:
No Just or Authorized Causes + Procedural Due Process = Illegal Dismissal
3. Third Situation:
No Just or Authorized Causes + No Procedural Due Process = Illegal Dismissal
Consequences of Illegal Dismissal:
a) reinstatement without loss of seniority rights and other privileges
b) full back wages inclusive of allowances
c) payment of other benefits or their monetary equivalent
d) damages [moral or exemplary]
e) attorneys fees
Take Note:
The payments of back wages or other benefits are to be computed from the time the compensation
was withheld from the employee up to the time of his actual reinstatement. If the reinstatement is not
possible, the computation is up to the time of finality of the decision.
Reinstatement without loss of seniority rights and other privileges:
[Bisan pa ug dili apil sa prayer ang reinstatement, ihatag jud na sija sa adjudicating authority]
Note:
Reinstatement order of labor arbiter;
immediately and self executory
Reinstatement order of NLRC;
immediate executory only
Reinstatement restores the employee who was unjustly dismissed to the position from which he was
removed.
Instance where Reinstatement is Not Possible;

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strained relationship
Instead of reinstatement, separation pay is being given.
However, it should be proved that the employee concerned occupies a position where he
enjoys the trust and confidence of his employer and that it is likely that if reinstated, an
atmosphere of antipathy and antagonism may be generated as to adversely affect the effect the
efficiency and productivity of the employee concerned.
Dili tanang strained relationship mahimong rason para dili mo-reistate ang employer. If the
relationship is clearly on an impersonal level, strained relations to bar reinstatement will not apply.
The existence of a strain relationship is for the employer to clearly establish and prove in the
manner the same to that where he is called to prove just cause.

Again, with regards to separation pay, the same consists of: one month pay or one month pay for
every year of service (recent salary)
Backwages
computed from the time of dismissal up to the time of reinstatement (bisan pa ug nakatrabaho sa
lain)
Query: In every illegal dismissal, is it necessary to award back wages?
Answer:
No. There are already lots of cases decided by the Supreme Court where it ruled that the dismissal
was illegal but it did not award separation pay.
In one case, a school- San Sebastian College- has a policy which prohibits a professor from
accepting teaching assignment from other schools. Moreno, a professor of San Sebastian, accepted
teaching assignment from other school within New Belt in violation of the rule. Subsequently, she was
dismissed from employment.
The court ruled that the dismissal was illegal for the lack of just cause but did not award back
wages. As a general rule, the normal consequences of a finding that an employee has been illegally
dismissed are: firstly, that the employee is entitled to reinstatement without loss of seniority rights, and
secondly, the payment of back wages corresponding to the period from his illegal dismissal up to his
actual reinstatement. The two forms of relief are however distinct and separate from each other.
Though the grant of reinstatement commonly carries the award of back wages, the appropriateness or
availability of one does not carry with it the inappropriateness or non-availability of the other.
4. Fourth Situation:
Just or Authorized Cause + No Procedural Due Process = Legal Dismissal
Under this case, the dismissal is legal but the employer is liable to pay indemnity in the form of nominal
damages. The amount of nominal damages varies from case to cases
[Kung ang dismissal is based on just cause but the employer failed to comply with the procedural due
process, the amount of nominal damages should be tempered because the dismissal process was in
effect initiated by an act imputable to the employee]. In other words, ang nominal damages sa just
causes is lesser than that of authorized causes.
[Kung sa authorized causes, if based on installation of labor-saving devices or redundancy, the nominal
damages is higher. But if the ground is retrenchment or closure, since it is due to losses, the nominal
damages is lesser.]
Note:
As a rule, bisan pa ug ang ground sa closure is serious business losses, basta dili-I
procedural due process, makabayad gihapon ang employer ug nominal damages.

observe ang

DAMAGES
-

Employer is liable for moral damages if he acted fraudulently or in bad faith.


Exemplary damages may be awarded if the dismissal was shown to have been effected in a wanton
oppressive or malevolent manner or when the employee has been harassed by employer.

ATTORNEYS FEES
- if the complainant is compelled to litigate with a third person; or incurred expenses to protect his
interest by reason of an unjustified act of a party against whom it is sought, then attorneys fees may
be claimed.
HOUSE HELPER:

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-

BATCH SINE QUA NON

With respect to house helper, reference must be made to R.A. 10361Kasambahay Act.
The grounds to terminate a house helper are specified in sec. 33 & 34.
Indemnities in case of illegal dismissal of a house helper are provided in sec. 32
R.A. 10361Kasambahay Act.
ARTICLE V
POST EMPLOYMENT

SEC. 32. Termination of Service. Neither the domestic worker nor the employer may terminate the contract before
the expiration of the term except for grounds provided for in Sections 33 and 34 of this Act. If the domestic worker is
unjustly dismissed, the domestic worker shall be paid the compensation already earned plus the equivalent of fifteen
(15) days work by way of indemnity. If the domestic worker leaves without justifiable reason, any unpaid salary due not
exceeding the equivalent fifteen (15) days work shall be forfeited. In addition, the employer may recover from the
domestic worker costs incurred related to the deployment expenses, if any: Provided, That the service has been
terminated within six (6) months from the domestic workers employment.
If the duration of the domestic service is not determined either in stipulation or by the nature of the service, the
employer or the domestic worker may give notice to end the working relationship five (5) days before the intended
termination of the service.
The domestic worker and the employer may mutually agree upon written notice to pre-terminate the contract of
employment to end the employment relationship.
SEC. 33. Termination Initiated by the Domestic Worker. The domestic worker may terminate the employment
relationship at any time before the expiration of the contract for any of the following causes:
(a) Verbal or emotional abuse of the domestic worker by the employer or any member of the household;
(b) Inhuman treatment including physical abuse of the domestic worker by the employer or any member of the
household;
(c) Commission of a crime or offense against the domestic worker by the employer or any member of the household;
(d) Violation by the employer of the terms and conditions of the employment contract and other standards set forth
under this law;
(e) Any disease prejudicial to the health of the domestic worker, the employer, or member/s of the household; and
(f) Other causes analogous to the foregoing.
SEC. 34. Termination Initiated by the Employer. An employer may terminate the services of the domestic worker
at any time before the expiration of the contract, for any of the following causes:
(a) Misconduct or willful disobedience by the domestic worker of the lawful order of the employer in connection with
the formers work;
(b) Gross or habitual neglect or inefficiency by the domestic worker in the performance of duties;
(c) Fraud or willful breach of the trust reposed by the employer on the domestic worker;
(d) Commission of a crime or offense by the domestic worker against the person of the employer or any immediate
member of the employers family;
(e) Violation by the domestic worker of the terms and conditions of the employment contract and other standards set
forth under this law;
(f) Any disease prejudicial to the health of the domestic worker, the employer, or member/s of the household; and
(g) Other causes analogous to the foregoing.
SEC. 35. Employment Certification. Upon the severance of the employment relationship, the employer shall issue
the domestic worker within five (5) days from request a certificate of employment indicating the nature, duration of the
service and work performance.

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1.
2.
3.
4.
5.

BATCH SINE QUA NON

Short Summary:
Just Causes:
serious misconduct or willful disobedient
Gross and habitual neglect by the employee of his duties.
fraud or willful breach by the employee of the trust reposed in him by his employer
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.
Analogous causes.
1.
2.
3.
4.
5.

Authorized Causes:
Installation of labor saving device.
redundancy
retrenchment
closure of business
ailment or disease

D.O. No. 40-02


Assumption of Jurisdiction by the Secretary over a dispute in an industry indispensable to national interest:
a) upon request by both or either party to a labor dispute; or
b) Motu Proprio on the part of the Secretary
If the assumption of jurisdiction is Motu Proprio on the part of the Secretary of Labor , the same can only be
done after a conference called by the Secretary of Labor and employment on the propriety of the issuance of the
assumption or certification order.
There shall be no conference required if the assumption is upon the request or petition by either party to a
labor dispute.
[Again: If the assumption of jurisdiction is:
- Motu Propio- prior conference is REQUIRED
- upon request by parties- prior conference NOT REQUIRED]

Article. 299- Termination by Employee


(a) An employee may terminate without just cause the employee-employer relationship by serving a
written notice on the employer at least one (1) month in advance. The employer upon whom no
such notice was served may hold the employee liable for damages.
(b) An employee may put an end to the relationship without serving any notice on the employer for
any of the following just causes:
1. Serious insult by the employer or his representative on the honor and person of the
employee;
2. Inhuman and unbearable treatment accorded the employee by the employer or his
representative;
3. Commission of a crime or offense by the employer or his representative against the person
of the employee or any of the immediate members of his family; and
4. Other causes analogous to any of the foregoing.
Notes:
The law affords the employee the right to resign regardless of whether the company has found an able and
competent replacement and whether the operation of the company would be affected, provided he serves a written
notice on the employer at least one (1) month in advance.
Resignation is withdrawable even if the employee has called it irrevocable. But after it is accepted or
approved by the employer, its withdrawal needs the employers consent.
Query: Is an employee who voluntarily resigns from his job entitled to separation pay?
Answer:
The general rule is that an employee who voluntarily resigns from employment is not entitled to separation
pay, unless there is a stipulation for payment of such in the employment contract or collective bargaining agreement
(CBA), or payment of the amount is sanctioned by established employer practice or policy under article 100.
Constructive Dismissal:

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What is constructive dismissal?


A constructive dismissal is a quitting because continued employment is rendered impossible, unreasonable or
unlikely, as an offer involving a demotion in rank and diminution in pay.
In other words, it is an employers act amounting to dismissal but made to appear as if it were not.
It is a dismissal in disguise.
Examples of Constructive Dismissal:
a) preventive suspension beyond 30 days
- as a rule, no preventive suspension shall last longer than thirty (30) days.
b) demotion in rank and diminution of compensation, benefits and other privileges
c) There is also a constructive dismissal if an act of mere discrimination, insensibility or disdain by an employer
becomes so unbearable on the part of the employee that it could foreclose any choice by him except to forego
his continued employment.
Article 300 When Employment Not Deemed Terminated:
The bona-fide suspension of the operation of a business or undertaking for a period not exceeding six
(6) months, or the fulfillment by the employee of a military or civic duty shall not terminate employment. In all
such cases, the employer shall reinstate the employee to his former position without loss of seniority rights if
he indicates his desire to resume his work not later than one (1) month from the resumption of operations of
his employer or from his relief from the military or civic duty.
Notes:
Suspension of Operations and Floating Status
Under Article 300, the following situations are contemplated therein:
a) bona fide suspension of the operation of business or undertaking for a period NOT exceeding six(6) months;
b) fulfillment by the employee of a military duty; or
c) fulfillment by the employee of a civic duty
These situations do not terminate employment.
Extent of suspension of operation may involve only a section or department of the company and not
necessarily the entire operations.
If the bona fide suspension of the operation of a business or undertaking exceeds six(6) months, then the
employment of the employee shall be deemed terminated. In such a case, the employer has to pay separation pay on
the ground of closure.
Floating Status:
An employer can place an employee on a floating status for only six (6) months. After the 6-month period, the
employer has to give back to the employee his job otherwise constructive dismissal may set in.
BAR QUESTIONS: Set 10 Nos. 1-64
A. An employee was ordered reinstated with back wages. Is he entitled to the benefits and increases granted
during the period of his lay-off? Explain briefly.
B. Aside from the just causes enumerated in article 282 of the labor code for the termination of employment, state
3 lawful or authorized causes for the dismissal of an employee.
Answer:
A. Yes, an employee who was ordered reinstated with back wages is entitled to the benefits and increases
granted during the period of his lay-off. The Supreme Court has ruled that back wages are granted for earnings a
worker lost due to his illegal dismissal and an employer is obliged to pay an illegally dismissed employee the whole
amount of salaries plus all other benefits and bonuses and general increases which the latter should have been
normally entitled had he not been dismissed.
B. Just enumerate the other authorized causes for dismissing an employee.
Distinguish between an award for back wages from an award for unpaid wages.
Answer:
An award for back wages is to compensate an employee who has been illegally dismissed for the wages,
allowances and other benefits or their monetary equivalent which said employee did not receive from the time he was
illegally dismissed up to the time of his actual reinstatement.
Unpaid wages, on the other hand, is being paid to an employee who has actually worked but has not been
paid the wages he is entitled to receive for such work done.

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What economic components constitute back wages for a rank and file employee? Are these components equally
applicable to managerial employee?
Answer:
The labor code provides that an employee who is unjustly dismissed from work is entitled among others to his
full back wages inclusive of allowances and to his other benefits or their monetary equivalent computed from the time
his compensation was withheld from him up to the time of his actual reinstatement. So this includes not only wages
but allowances, 13th month pay and all other benefits including those arising from CBA given to the employees.
An employee is entitled to all said benefits regardless of whether he is a rank and file employee or a
managerial employee.
A was hired by Company B in January 1980 until A was illegally dismissed on April 30, 1990 as found by a
Labor Arbiter who ordered reinstatement and full back wages from April 30, 1990 until As reinstatement. The
arbiters decision was promulgated on April 29, 1995. B appealed claiming among others that the award for back
wages was excessive in that it went beyond 3-year rule set forth in Mercury Drug v. CIR (56 SCRA 696). Is Bs
contention tenable?
Answer:
No. that ruling in Mercury Drug vs. CIR has already been set aside. As a rule, an illegally dismissed employee
is entitled among others to his full back wages which shall be computed from the time his compensation was withheld
from him up to the time of his actual reinstatement.
A an employee of Company B was found to have been illegally dismissed and was ordered to be reinstated
and paid back wages from the time of dismissal until actual reinstatement. The case was elevated all the way to
the Supreme Court. By the time the Supreme Courts decision became final and executory, B had closed down
and was in the process of winding up. Nonetheless, B paid A his backwages and separation pay. A complained
that Bs computation was erroneous in that As allowances was not included. Is As correct in his claim? For what
reason(s)?
Answer:
Yes, A is correct. The law provides that the award is not only limited to back wages but also his allowances
and other benefits or their monetary equivalent.
According to Art 283 of the Labor Code, the lawful or authorized causes for the termination of an employee are:
1. Installation of labor saving devices
2. Redundancy
3. Retrenchment to prevent losses or;
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
Art. 284 also provides that an employer may terminate the services of an employee who has been found to be
suffering from any disease and whose continued employment is prohibited by law or is prejudicial to his health as well
as to the health of his co-employees. What are the authorized causes for a valid dismissal by the employer of an
employer? Why are they distinct from the just causes?
Answer:
Authorized causes are already enumerated in the problem.
Just causes are different from authorized causes. Just causes are the grounds for the dismissal of an
employee based on acts committed by the employee. Authorized causes, on the other hand, are the results of the
proper exercise by the employer of his management prerogative.
With respect to just causes, there is no liability on the part of the employer to pay separation pay except that
sometimes the employer has to pay financial assistance as an act of social justice provided that the ground for the
dismissal is not due to serious misconduct.
But in authorized causes, the employer has to pay separation pay except in case of closure due to serious
business losses or financial reverses.
Company A was engaged in the manufacture of goods using the by-products of coconut trees and employed
some fifty workers who lived in the coconut plantation in Quezon Province. The land upon which A concluded its
operation was subjected to land reform under R.A. 6657 for distribution to the tenants and residents of the land.
Consequently, A had to close its operations and dismiss its workers. The union representing the employees
demanded that A pay the dismissed workers separation pay under Art. 283 of the Labor Code that requires,
among others, the payment of separation pay to employees in cases of closing or cessation of operations of the
establishment or undertaking. Is the unions claim correct or not? Why?
Answer:

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The unions claim is not correct. The Supreme Court has ruled that there is no obligation to pay separation pay
if the closure is not a unilateral and voluntary act of the employer. This is based on the case of National Federation of
Labor vs. NLRC.
In the problem, the closure was brought about not by a unilateral and voluntary act of the employer but due to
the act of government in the implementation of the comprehensive agrarian reform law.
If the reason for the closure is due to old age of the brothers and sisters:
1. Is the closure allowed by law
2. Are the employees entitled to separation
Answer:
1. Yes, the closure is allowed by law. As a rule, there are no requisites for a valid closure of a business. An
employer can close his business for any reasons.
2. Yes, the employees are entitled to separation pay because the closure is not due to serious business losses
or financial reverses.
ABC Tomato Corporation, owned and managed by three (3) elderly brothers and two (2) sisters, has been in
business for 40 years. Due to serious business losses and financial reverses during the last five (5) years, they
decided to close the business.
1. As counsel for the corporation, what steps will you take prior to its closure? 2.5%
2. Are the employees entitled to separation pay? 2.5%
Answer:
1. Prior to its closure, there must be compliance of the procedural requirements, that is:
a) notice to DOLE 30 days prior to the intended termination; and
b) notice to the employees 30 days prior to the intended termination
2. No, because the closure was due to serious business losses and financial reverses.
Soon after the Asian meltdown began in October 1997, ABC Realty and Management Corporation undertook a
downsizing program and terminated nearly a third of its regular workforce. The affected employees questioned
their termination arguing that the action was precipitate in that ABC had not proved that it sustained any losses. Is
the claim of the employees correct? Explain your answer.
Answer:
What they undertook was a downsizing program. It is vague whether the program pertains to redundancy or
retrenchment. If it is redundancy, there is no requirement of losses. But if it is retrenchment, it is necessary that the
losses are proved and that the same must be substantial.
Harvester Independent Ventures (HIV) adopted a redundancy program to streamline operations. Positions which
overlapped each other, or which are in excess of the requirements of the service, were declared redundant. This
program resulted in the reduction of manpower complement and consequent termination of 15 employees, which
included the secretary of the local union and the companys Pollution control Officer.
Ilaw at Buklod ng Manggagawa (IBM), questioned the termination of the 15 emloyees, contending that the same
constituted union busting and therefore, illegal, if the same is undertaken without prior union approval.
1. Is IBM correct in its contention that redundancy can be implemented by HIV only upon prior union approval?
Why?
2. Can the position of Pollution Control Officer be declared redundant? Why?
Answer:
1. No, there is no requirement that there must be a prior union approval before a redundancy can be
implemented. Redundancy is an exercise of management prerogative which does not require prior union
approval.
2. With respect to the position of pollution control officer, the management has wide discretion to determine what
positions are redundant.
A) Can redundancy exist where the same is due to the companys failure to properly forecast its manpower
requirements?
b) Can redundancy exist where the work performed by 12 workers can be performed as efficiently by 10 workers
by increasing the speed of a machine without detriment to the health and safety of the workers?
Answer:
a) Yes, redundancy exists when a position has become an excess or superfluous which may be caused
be recognition, or closure of a section or department. Poor forecasting does not invalidate
redundancy.

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b) Yes, redundancy can exist where work efficiency has been improve mechanically thus resulting in
excessive and superfluous manpower.
What conditions must prevail and what requirements, if any, must an employer comply with to justify/effect a valid
retrenchment program?
Answer:
Requirement to effect a valid retrenchment program;
a) retrenchment is reasonably necessary to prevent business losses and such losses are proven and must be
substantial,
b) written notice must be served both to the employees and to DOLE at least 30 days prior to the intended date
of retrenchment;
c) payment of separation pay
d) the exercise of the retrenchment program must be in good faith
e) The employer must use fair and reasonable criteria in ascertaining who would be dismissed and who would be
retained.
What conditions must prevail and what requirements, if any, must an employer comply with to justify/effect a valid
redundancy program?
Answer:
Requirements to effect a valid redundancy program:
a) compliance of the procedural requirements
- service of a written notice or both the employees and the DOLE at least 30 days prior to the intended
date of termination
b) payment of separation pay
c) it must be exercised in good faith
d) The employer must see fair and reasonable criteria in ascertaining the positions that are to be declared
redundant and accordingly abolished.
The Company Legal counsel advised the Board of director as follows: A company cannot retrench to prevent
losses until actual losses occur. The company must wait until the end of the Business Year when its Books of
account, profits and loss of statement showing the actual loss and balance sheet have been audited by an
independent auditing firm. Is the legal advice of counsel correct?
Answer:
The legal advice of the counsel is not correct. Take note of preventive retrenchment. The same is resorted to
in order to prevent losses, as long as the losses are imminent and serious. The law does not require that retrenchment
can only be undertaken by an employer after an actual loss occurs. Preventive retrenchment is undertaken before the
losses anticipated are actually sustained or realized.
Is seniority rule or the last in first out policy to be strictly followed in affecting a retrenchment or redundancy
program?
Answer:
No. the law does not mandate such policy. What is important is that the employer uses a fair and reasonable
criteria on whom among the employees will be retrenched or what positions are to be considered redundant.
Gabriela Liwanag has been working as bookkeeper at Great Food Inc. which operates a chain of high-end
restaurants throughout the country, since 1970 when it was still a small eatery at Binondo. In the early part of the
year 2003, Gabriela, who was already 50 years old, reported for work after a week-long vacation in her province. It
was the height of the SARS scare, and management learned that the first confirmed SARS death case in the
Philippines, a balikbayan nurse from Canada, is a townmate of Gabriela. Immediately, a memorandum was issued
by management terminating the services of Gabriela on the ground that she is a probable carrier of SARS virus
and that her continued employment is prejudicial to the health of her co-employees. Is the action taken by the
management justified?
Answer:
No. the employers act of terminating the employment of Gabriela is not justified because there is no showing
that Gabriela is sick with SARS or that she is associated or had contact with the deceased nurse. There is also no
certification by a competent public health authority that the disease is of such nature or such stage it cannot be cured
within a period of six months even with proper medical treatment.
RS, a security guard, filed a complaint for illegal dismissal against Star Security Agency. He alleged he was
constructively dismissed after ten years of service to the Agency. Having been placed on off-detail and floating

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status for 6 months already, he claimed that the agency just really wanted to get rid of him because it required him
to take a neuro-psychiatric evaluation test by Mahusay Medical Center. RS said he already submitted the result of
his test by Brent Medical Clinic as precondition to a new assignment but the report was rejected by the agency.
RS added that Mahusay Medical Clinic had close ties with Stars president. It could manipulate tests to favor only
those guards whom the Agency wanted to retain. Star defended its policy of reliance on Mahusay Medical clinic
because it has beeb duly accredited by the PNP. It is not one of those dubious testing centers issuing ready-made
reports. Star cited its sad experience last year when a guard ran amuck and shot an employee of the client-bank.
Star claimed management prerogative in assigning its guards, and prayed that RS complaint be dismissed. What
are the issues? Identify and resolve them.
Answer:
The following are the issues;
a) Was RS, the security guard, constructively dismissed?
- It must be noted that in the problem given, RS was already in floating status for six months. Under
the law, an employee may be placed on floating status only for six months. Beyond the 6 months
period, an employee may be considered constructively dismissed.
Therefore, if RS was already in floating status for more than six months, he was already
constructively dismissed.
b) Was there a valid exercise of management prerogative with respect to the termination of RS on the ground
that he failed to submit the required neuro-psychiatric evaluation test form the center as required by the
company?
- No. The exercise of management prerogative is not valid because while it is true that disease is a
ground for termination, the neuro- psychiatric evaluation test by the Mahusay Medical Center is not
the certification required for the disease to be a ground for termination. The labor code requires a
certification by a public health authority that the disease is of such nature and of such stage that it
cannot be cured within a period of six months even with proper medical treatment.
Mansuelo was hired by the Philippine Packing Company sometime in 1960 as an hourly paid research field worker
at its pineapple plantation in Bukidnon. In 1970, he was transferred to the general crops plantation in Misamis
Oriental. Mansuelo was promoted to the position of a monthly paid regular supervisor four years after.
Subsequently, research activity in Misamis Oriental was phased out to March of 1982 for having unnecessary.
Mansuelo thereafter received a written memorandum from the PPC, reassigning him to the Bukidnon plantation
effective April 1, 1982, with assurance that his position of supervisor was still there for him to hold. Mansuelo tried
to persuade the PPC management to reconsider his transfer and if this was not possible, to at least consider his
position as redundant so that he could be entitled to severance pay. PPC did not accept Mansuelos proposal.
When Mansuelo continuously failed to report for work at the Bukidnon plantation, PPC terminated his employment
by reason of his refusal to accept his new assignment. Manseulo claims that his reaasignment is tantamount to an
illegal constructive dismissal. Do you agree with Mansuelo? Explain.
Answer:
No, because it pertains to transfer. As a rule, transfer is a valid management prerogative. An employers right
to security of tenure does not give him such a vested right to his position as to deprive the company of its prerogative
to change his assignment or transfer him where he will be most useful. When his transfer is not unreasonable, not
inconvenient and it does not involve demotion in rank and diminution of salaries and benefits as well as privileges, the
employee cannot complain that the transfer amounts to constructive dismissal. In the case, Mansuelo can be
dismissed from employment on the ground of willful disobedience.
What damages can an illegally dismissed employee collect from his employer?
Answer:
Damages:
a) actual or compensatory
b) moral
c) exemplary
d) attorneys fees
e) litigation expenses
May the labor arbiter, NLRC or Court of Appeals validly award attorneys fees in favor of a complainant even if not
claimed or proven in the proceedings? Why?
Answer:
No. It can only be awarded if the claimant claimed and proved that he is entitled to attorneys fees.
Distinguish between the substantive and the procedural requirements for the dismissal of an employee.
Answer:

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If we say substantive requirement, it means that there is a just cause for the termination of an employee or the
termination is authorized by law. With respect to the procedural requirement pertaining to just causes, the employer
should furnish to the employee whose employment sought to be dismissed; first, a written notice containing a
statement of causes for termination; then the employer should afford the employee ample opportunity to be heard and
to defend himself with the assistance of his representative if he so desires; and the second notice informing him that
after due consideration., grounds have been established justifying his dismissal. With respect also to the procedural
requirements pertaining to authorized causes, the employer must serve a written notice both to the employees and to
the DOLE at least 30 days prior to the intended date of termination.
Inday was employed by Herrera Home Improvements, Inc. (Herrera Home) as interior decorator. During the first
year of her employment, she did not report for work for one month. Hence, her employer dismissed her from the
service. She filed with the Labor Arbiter a complaint for illegal dismissal alleging she did not abandon her work and
that in terminating her employment, Herrera Home deprived her of her right to due process. She thus prayed that
she be reinstated to her position.
Inday hired you as her counsel. In preparing the position paper to be submitted to the Labor Arbiter, explain
the standards of due process which should have been observed by Herrera Home in terminating your client's
employment. 5%
Answer:
In the case given, Inday was dismissed on ground of neglect of duties- abandonment, thus the twin notice and
hearing must be observed. [Just state the procedural requirements that must be observed with respect to just causestwin notice and hearing].
Marimar is a teacher in Santibanez high school. She is the class adviser of the senior batch where Sergio is
enrolled. Since it is the policy of the school to extend remedial instructions to its students, Sergio is imparted such
instructions in school by Marimar after regular class hours. In the course thereof, Marimar and Serrgio fell in love
with each other and shortly after got married. Marimar is 31 years old while Sergio is only 16. Santibanez High
School thereafter seeks to terminate the employment of Marimar for abusive and unethical conduct unbecoming of
a dignified school teacher and that her continued employment is inimical to the best interest and would downgrade
the high moral values of the school. Marimar, according to the school, recklessly took advantage of her position as
a teacher by luring a graduating student under her advisory section and enter into an amorous relationship, in
violation of the Code of Ethics for teacher with states, among others, that a school official or teacher should never
take advantage of his/her position to court a pupil or student. While no one directly saw Marimar and Sergio doing
any intimate acts inside the classroom, the school nonetheless maintains that the marriage between the two is the
best proof which confirms the suspicion that Marimar and Sergio indulge in amorous relations inside the
classroom after class hours. Marimar, on the other hand, contends that there is nothing wrong with a teacher
falling in love with her pupil and consequently, contracting marriage with him. How would you decide the case?
Explain.
Answer: Chua Qua vs. Clave
If the two eventually fell in love despite the disparity of their ages and academic levels, this only lends substance to
the truism that the heart has reasons of its own which reason does not know
Antonio Antuquin, a security guard, was caught sleeping on the job while on duty at the Yosi Cigarette Factory. As
a result, he was dismissed from employment by the Wagan Security Agency, an independent contractor. At the
time of his dismissal, Antonio had be serving as a watchman in the factory or many years, often at stretches of up
to 12 hours, even on Sundays and Holidays, without overtime, nighttime and rest day benefits. He thereafter filed
a complaint for illegal dismissal and non-payment of benefits against the factory, which he claimed was his actual
and direct employer. As the labor arbiter assigned to hear the case, how would you correctly resolve the following?
Answer: relate this to article 106- Job contracting.
If I were the labor arbiter, I will dismiss the case because Yosi Cigarette Factory is not the employer of Antonio
Antoquin. His employer is the Wogan Security Agency. Yosi Cigarette Factory is only the principal in the job
contracting presented in the case.
With respect to the claim of overtime and other benefits, the principal factory- is not jointly and severally
liable with the employer except in case of non-payment of wages. Had the security agency been a labor only
contractor, the factory as an indirect employer is liable to such claim.
Sergio, an employee of Encantado Philippines, Inc. EPI, was at the company canteen when Corazon, a canteen
helper, question him for his use of somebody elses identification card. Sergio flared up and shouted at Corazon
wala kang pakialam! Kung gusto mo, itapon ko itong mga pagkain niyo!. When Sergio noticed that some people
were staring at him rather menacingly, he left the canteen but return a few minutes later to remark challengingly
Sino ba ang nagagalit Sergio then began smashing some food items that were on display for sale in the canteen,
after which he slapped Corazon which caused her to fall and suffer contusions. The incident prompted Corazon to

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file a written complaint with Gustavo, the personnel manager of EPI, against Sergio. Gustavo required Sergio to
explain in writing why no disciplinary action should be taken against him. In his written explanation, Sergio
admitted his misconduct but tried to explain it away by saying that he was under the influence of liquor at the time
of the incident. Gustavo thereafter issued a letter of termination from the employment of Sergio for serious
misconduct. Sergio now files a complaint for illegal dismissal, arguing that his acts did not constitute serious
misconduct that would justify his dismissal. Decide.

Answer:
Yes. Sergios acts did not constitute serious misconduct because to be considered as serious misconduct, it
must be in relation to the performance of his duties. Thus, he cannot be dismissed on just cause no. 1 but he can be
dismissed on just cause no. 5, which is an analogous cause.
During their probationary employment, 8 employees were berated and insulted by their supervisor. In protest, the
walk out. The supervisor shouted at them to go home and never to report back to work. Later, the personnel
manager required them to explain why they should not be dismissed from employment for abandonment and
failure to qualify for the positions applied for. They filed a complaint for illegal dismissal against their employer. As
a labor arbiter, how will you resolve the case?
Answer:
The probationary employees were illegally dismissed. When the supervisor shouted at them to go home and
never to report back to work, the same is tantamount to dismissal. As a rate, probationary employees also enjoy
security of tenure. They cannot be terminated during the tenure. They cannot be terminated during the probationary
period except on just or authorized causes.
Joseph Vitriolo(JV), a cashier of Seaside Sunshine Supermarket (SSS), was found after an audit, to have cash
shortages on his monetary accountability covering a period of about 5 months in the total amount of P48,000.00.
SSS serve upon JV the written charge against him via a memorandum order of preventive suspension, giving JV
24 hours to submit his explanation. As soon as JV submitted his written explanation within the given period, the
same was deemed unsatisfactory by the company and JV was peremptorily dismissed without any hearing. The
day following his termination from employment, JV file a case of illegal dismissal against SSS. During the hearing,
before the labor arbiter, SSS proved by substantial evidence JVs misappropriation of company funds and various
infractions detrimental to the business of the company. JB, however, contended that his dismissal was illegal
because the company did not comply the requirements of due process.
a) Did SSS comply with the requirements of procedural due process in the dismissal form employment of
JV? Explain
b) If you were the labor arbiter, how would you decide the case? Explain.
Answer:
1. SSS did not comply with the procedural requirement of twin notice and hearing because what was served to
Joseph was a memorandum order of his preventive suspension. A notice of preventive suspension cannot be
considered adequate notice of the charges since it does not apprise the employee of the causes of his
dismissal. Under the twin notice and hearing requirement, the first notice must specify the grounds for
termination; that is it must state with particularity the acts and omissions for which the employee is being
changed
In addition, there was no compliance of the procedural requirement because there was no hearing conducted
wherein the employee was given ample opportunity to explain his side.
2. The dismissal is legal. If there is a ground for dismissal, even if the procedural requirements were not
complied with the dismissal is legal but the employer is liable for nominal damages.
Daisy, the branch manager of Tropical Footwear Inc, was dismissed for serious misconduct. She filed a complaint
for illegal dismissal and damages. The labor arbiter sustained daisys dismissal but awarded her separation pay
based on social justice and as an act of compassion considering her 10 years service with the company. Was the
award of separation pay proper? Explain.
Answer:
No. Although separation pay is based on social justice may be awarded on dismissal under just cause, the
same cannot be done if the ground of dismissal is serious misconduct. Since Daisy was dismissed for serious
misconduct, thus separation pay cannot be awarded.
A worked for Company B as a rank and file employee until April 1990 when As services were terminated due to
loss of confidence in A. however, before effecting As dismissal, B accorded A due process including full

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opportunity to answer the charges against him in the course of the investigation. Was B justified in dismissing A
after the investigation? Why?
Answer:
In order to justify the dismissal, the basic requisites of dismissal on ground of loss of confidence must be
stated, that is:
a) the employee concerned must be holding a position of trust and confidence;
b) the loss of confidence should not be simulated
c) the ground of loss of confidence should not be used as a subterfuge for causes which are improper, illegal or
unjustified
d) it cannot be arbitrarily asserted in the face of overwhelming evidence to the contrary
e) It must be genuine and not a mere afterthought to justify employers action.
Distinguish between dismissal of an employee for just cause and termination of employment for authorized cause.
Enumerate examples of just cause and authorized cause.
Answer:
Dismissal for just cause is founded on faults or misdeeds of the employee. Separation pay, as a rule, will not
be paid. Examples of just causes are serious misconduct and willful disobedience.
With respect to authorized causes, the same is based on business or measures adopted by the employer
not constituting fault of the employee. Separation pay must be paid except on closure due to serious business losses
or financial reverses. Some examples are retrenchment, installation of labor-saving devices and redundancy.
Roman had been a driver of Double-ten Corp. for ten years. As early as his 5 th year in the service, he was already
commended as a model employee and given a salary increase. On his 7 th year, he became a steward of his labor
union. Since then he became disputatious and obstinate and his performance fell below par. One day his manager
told him to pick up some documents from a certain bank which were needed to close a business transaction.
Roman did not obey. He said he had an important personal engagement. Moreover, he did not want to drive a
vehicle that was not air-conditioned. When his immediate supervisor asked him in the afternoon to drive an air
conditioned car, Roman again refused. He said he did not want to drive as he wanted to leave the office early.
Roman was asked to explain. After hearing his explanation, Roman was dismissed for willful disobedience.
Roman filed a case for illegal dismissal against the Doube-ten Corp. with prayer for reinstatement and full back
wages without loss of seniority rights, plus moral and exemplary damages and attorneys fees. Roman contended
that since there was no emergency situation and there were other drivers available, his refusal to drive for the
manager, and later for his supervisor, was not serious enough to warrant his dismissal. On the other hand, he
claimed that he was being punished because of his activities as steward of his union. If you were the labor arbiter,
would you sustain Roman? Discuss fully.
Answer:
If I were the labor arbiter, I will not sustain Roman because obviously the corporation is not discriminating him
just by reason of his being a union official. When the manager of Roman told him to pick up some documents from
certain, this was a lawful order. When Roman did not obey the order, he was disobedient. When he disobeyed a
similar request made later in the afternoon for the same day, he was guilty of willful disobedience to what the
management ask him to do. Therefore, the same is a just cause for his termination.
Oscar Pimentel was an agent supervisor, rising from the ranks, in a corporation engaged in real estate. In order to
promote the business, the company issued a memorandum to all agent supervisors requiring them to submit a
feasibility study within their respective areas of operation. All agent supervisors complied except Oscar. Reminded
by the company to comply with the memorandum, Oscar explains that being a dropout in school and uneducated,
he would be unable to submit the required study. The company found the explanation unacceptable and
terminated his employment. Aggrieved, Oscar filed a complaint for illegal dismissal against the company. Decide
the case.
Answer:
Under the law, to constitute willful disobedience, the presence of two requisites is required, namely:
a) The employees assailed conduct must have been willful or intentional. The willfulness being characterized by
a wrongful and perverse attitude.
b) The order violated must have been lawful, reasonable or made known to the employee and must pertain to
the duties which he has been engaged to discharge.
In the case given, although the order to submit a feasibility study is lawful, Oscars refusal to comply with such
order cannot be considered as willful or intentional. Such refusal is not characterized with a wrongful and perverse
attitude because of his explanation that he cannot comply with such order due to his lack of education. Thus, it cannot
be said that there was a willful disobedience of a lawful order of the employer.

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Mariet Demetrio was a clerk-typist in the Office of the President of a multi-national corporation. One day she was
berated by the President of the company, the latter shouting invectives at her in the presence of employees and
visitors for a minor infraction she committed. Mariet was reduced to tears out of shame and felt so bitter about the
incident that she filed a civil case for damages against the company president before the regular courts. Soon
thereafter, Mariet received a memorandum transferring her to the Office of the General Manager without demotion
in rank or diminution in pay. Mariet refused to transfer. With respect to the civil suit for damages, the company
lawyer filed a Motion to Dismiss for lack of jurisdiction considering the existence of an employer-employee
relationship and therefore, it is claimed that the case should have been filed before the Labor Arbiter. Will Mariet
Demetrios refusal to transfer constitute the offense of insubordination? Explain.
Answer:
Yes. Transfer is a valid exercise of management prerogative as long as there is no demotion in rank and
diminution of salaries and other benefits even if the same would cause inconvenience to the employee. And noncompliance of a valid transfer order is considered willful disobedience.
Universal Milling Company and Maras Canteen executed an agreement that Universal employees patronizing
Maras could buy food on credit and enjoy a 25% discount provided that they present their identification card and
wear their company uniform. Nikko, an employee of Universal, used the i.d. of Galo, a co-employee in buying food
at Maras. an alert employee of Maras discovered the misrepresentation of Nikko but not without engaging him in
a heated argument. Nikko boxed Maras employee resulting in serious physical injuries to the latter. Universal
dismissed Nikko from the company. Nikko sued Universal for illegal dismissal. As labor arbiter, how would you
decide the case? Discuss.
Answer:
The dismissal is legal if the ground is based on analogous causes. In this case, Nikko cannot be dismissed on
ground of serious misconduct because the misconduct was not done in relation to the performance of his duties.
Can a final and executory judgment be compromised under a release and quitclaim for a lesser amount?
Answer:
Yes, provided that both parties have agreed to the said release and quitclaim
May an ordinary rank and file employee be terminated for loss of trust and confidence? If so, what proof is
required? If not, why not?
Answer:
Yes, an ordinary rank- and- file employee may be terminated for loss of trust and confidence as long as the
loss of trust and confidence is brought about objectively due to a willful breach by the employee of the trust imposed
on him by his employer or duly authorized representative and the willful breach is proven by substantial evidence.
Are the principal officers of a corporation liable in their personal capacity for non-payment of unpaid wages and
other monetary benefits due its employees?
Answer:
As a general rule, they are not liable. However, they can be held jointly and severally liable in exceptional
circumstances such as when they vote for or assent on unlawful acts of the corporation; or they acted in bad faith or
gross negligence in directing the corporate affairs; or they are guilty of conflict of interest to the prejudice of the
corporation, its stockholders, members and other persons.
May a court order the reinstatement of a dismissed employee even if the prayer of the complaint did not include
such relief?
Answer:
Yes. As long as there is a finding of illegal dismissal, the court can order reinstatement of an employee even if
the prayer did not include such relief. This is because reinstatement is a necessary consequence of a finding of illegal
dismissal. In addition, the labor code also provides that technical rules of procedures are not binding to labor cases.
Give at least 5 instances when an illegally dismissed employee may not be reinstated.
Answer:
Instances when an illegally dismissed employee may not be reinstated;
a) strained relationship
b) when the employer cease to operate business
c) when the employee doesnt want to be reinstated

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d) when the position of the employee has already been dissolved or abolished

Pepe Santos was an international flight steward of Flysafe Airlines. Under FSA's Cabin Crew Administration
Manual, Santos must maintain, given his height and body frame, a weight of 150 to 170 pounds.
After 5 years as a flight steward, Santos began struggling with his weight; he weighed 200 lbs., 30 pounds
over the prescribed maximum weight. The Airline gave him a one-year period to attain the prescribed weight, and
enrolled him in several wieght reduction programs. He consistently failed to meet his target. He was given a 6month grace period, after which he still failed to meet the weight limit. FSC thus sent him a Notice of
Administrative Charge for violation of company standards on weight requirements. He stated in his answer that,
for medical reasons, he cannot have a rapid weight loss. A clarificatory hearing was held where Santos fully
explained his predicament. The explanation did not satisfy FSA and so it decided to terminate Santos's service for
violation of company standards.
Santos filed a complaint for illegal dismissal, arguing that the company's weight requirement policy is
unreasonable and that his case is not a disciplinary but a medical issue (as one gets older, the natural tendency is
to grow heavier). FSA defended its policy as a valid exercise of management prerogative and from the point of
view of passenger safety and extraordinarydiligence required by law of common carriers; it also posited that
Santos failure to achieve his ideal weight constituted gross and habitual neglect of duty, as well as willful
disobedience to lawful employer orders. The Labor Arbiter found the dismissal illegal for there was neither gross
and habitual neglect of duty nor willful disobedience. Is the Labor Arbiter correct? Why or why not? Explain fully.
(6%)

Answer:
The labor arbiter is not correct. This is because there was a just cause for terminating the flight attendant
under the analogous causes. This is pursuant to the Bona fide Occupational Qualification Rule which means that the
maintenance of the required weight is necessary for the effective performance of his function as a flight attendant.
Thus, failure to maintain the required weight constitutes a valid ground for termination of employment under
analogous causes pursuant to the Bona fide Occupational Qualification Rule

A) Baldo was dismissed from employment for having been absent without leave (AWOL) for eight (8) months. It
turned out that the reason for his absence was his incarceration after he was mistaken as his neighbors killer.
Eventually acquitted and released from jail, Baldo returned to his employer and demanded reinstatement and full
backwages. Is Baldo entitled to reinstatement and backwages? Explain your answer. (3%)
B) Domingo, a bus conductor of San Juan Transportation Company, intentionally did not issue a ticket to a female
passenger, Kim, his long-time crush. As a result, Domingo was dismissed from employment for fraud or willful
breach of trust. Domingo contests his dismissal, claiming that he is not a confidential employee and, therefore,
cannot be dismissed from the service for breach of trust. Is Domingo correct? Reasons. (2%)

Answer:
a) As a rule, to constitute abandonment, it is not enough that the employee concerned did not report to work.
There must be a deliberate intention to server employer- employee relationship. In the case given, there was
no such intention because he was imprisoned after he was mistaken as his neighbors killer. Therefore, there
was no abandonment and he can be reinstated with full back wages and other benefits.
b) No. as a rule, an employee who is being charged for the case and custody of the employers property and
money can be dismissed on ground of loss of confidence or breach of trust. In this case, being a conductor, he
was charged for the custody of the employers money. Thus, he can be dismissed on ground of loss of
confidence.
Alfredo was dismissed by management for serious misconduct. He filed suit for illegal dismissal, alleging that
although there may be just cause, he was not afforded due process by management prior to his termination. He
demands reinstatement with full backwages.
a. What are the twin requirements of due process which the employer must observe in terminating or dismissing
an employee? Explain. (3%)
b. Is Alfredo entitled to reinstatement and full backwages? Why or why not? (3%)
Answer:
a) The twin requirements of due process which the employer must observe in terminating an employee is the
twin-notice and hearing.
b) No, because there was a just cause for termination. It was only the procedural requirement which was not
complied, thus the employer is liable only for nominal damages.
Cite four (4) instances when an illegally dismissed employee may be awarded separation pay in lieu of
reinstatement. (3%)

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Answer:
Instances where separation pay may be awarded in line of reinstatement;
a) strained relationship
b) the employee doesnt want to be reinstated
c) abolition of position
d) closure of business
A was working as a medical representative of RX pharmaceutical company when he met and fell in love with B, a
marketing strategist for Delta Drug Company, a competitor of RX. On several occasions, the management of RX
called As attention to the stipulation in his employment contract that requires him to disclose any relationship by
consanguinity or affinity with co-employees or employees of competing companies in light of a possible conflict of
interest. A seeks your advice on the validity of the company policy. What would be your advice? (3%)
Answer:
The policy is valid. Although it appears that said policy violates the provision of the labor code with respect to
stipulation against marriage, but the Supreme Court has ruled that the same is a valid exercise of the management
prerogative.

Because of continuing financial constraints, XYZ, Inc. gave its employees the option to voluntarily resign from
the company. A was one of those who availed of the option. On October 5, 2007, he was paid separation benefits
equivalent to seven (7) months pay for his six (6) years and seven (7) months of service with the company and he
executed a waiver and quitclaim.
A week later, A filed against XYZ, Inc. a complaint for illegal dismissal. While he admitted that he was not
forced to sign the quitclaim, he contended that he agreed to tender his voluntary resignation on the belief that
XYZ, Inc. was closing down its business. XYZ, Inc., however, continued its business under a different company
name, he claimed. Rule on whether the quitclaim executed by A is valid or not. Explain. (3%)

Answer: [take note of the requirements for a valid quitclaim and waiver]
The quitclaim executed was valid because A was not forced to sign the same. Not all quitclaims are invalid. If
an employee signed a quitclaim without force, duress or intimidation, the same is valid and he cannot later demand
that he was illegally dismissed.
Unless, in executing the quitclaim and waiver there was a misrepresentation being made by the company,
so in that case the waiver and quitclaim cannot be valid.
Flight attendant A, five feet and six inches tall, weighing 170 pounds ended up weighing 220 pounds in two years.
Pursuant to the long standing Cabin and Crew Administration Manual of the employer airline that set a 147-pound
limit for As height, management sent A a notice to shape up or ship out within 60 days. At the end of the 60-day
period, A reduced her weight to 205 pounds. The company finally served her a Notice of Administration Charge for
violation of company standards on weight requirements. Should A be dismissed? Explain. (3%)
Answer:
Yes. A can be dismissed from employment under analogous causes pursuant to the Bona Fide Occupational
Qualification Rule
A foreign guest in a luxury hotel complained that he lost certain valuable items in his hotel room. An investigation
by the hotel pointed to two roomboys as the most probable thieves. May the management invoke loss of
confidence as a just cause for dismissing the roomboys?
(A) No, loss of confidence as reason for dismissal does not apply to rank and file employees.
(B) No, loss of confidence applies only to confidential positions.
(C) Yes, loss of confidence is broad enough to cover all dishonest acts of employee.
(D) Yes, loss of confidence applies to employees who are charged with the care and custody of the
employer's property.
Sampaguita Company wants to embark on a retrenchment program in view of declining sales. It identified five
employees that it needed to separate. The human resource manager seems to recall that she has to give the five
employees and the DOLE a 30-day notice but she feels that she can give a shorter notice. What will you advise
her?

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(A) Instead of giving a 30-day notice, she can just give a 30-day advanced salary and make the separation
effective immediately.
(B) So long as she gave DOLE a 30-day prior notice, she can give the employees a shorter notice.
(C) The 30-day advance notice to the employee and the DOLE cannot be shortened even with a 30-day
advance salary.
(D) She can give a shorter notice if the retrenchment is due to severe and substantial losses.
An employee proved to have been illegally dismissed is entitled to reinstatement and full backwages computed on
the basis of his
(A) basic salary plus the regular allowances and the thirteenth month pay.
(B) basic salary plus the salary CBA increases during the pendency of his case.
(C) basic salary plus the increases mandated by wage orders issued during the pendency of his case.
(D) basic salary at the time of dismissal.
An employee is NOT entitled to financial assistance in cases of legal dismissal when the dismissal
(A) is based on an offense reflecting the depraved character of the employee.
(B) is based on serious misconduct or breach of the employer's trust.
(C) is grounded on any of the just causes provided by the Labor Code.
(D) when the employee has less than 10 years of service.
When the employer or his representative hurls serious insult on the honor or person of the employee, the law says
that the employee
(A) may leave work after at least a five-day notice to the employer.
(B) may leave work at any time and file for constructive dismissal.
(C) may leave work without giving a 30-day notice to the employer.
(D) may abandon his job at once.
A sugar mill in Laguna, capitalized at P300 million, suffered a P10,000.00 loss last year. This year it dismissed
three young female employees who gave birth in the last three years. In its termination report to DOLE, the sugar
mill gave as reason for the dismissal retrenchment because of losses. Did it violate any law?
(A) Yes, the law on retrenchment, the sugar mills loses not being substantial.
(B) Yes, the law against violence committed on women and children.
(C) No, except the natural law that calls for the protection and support of women.
(D) No, but the management action confirms suspicion that some companies avoid hiring women because of
higher costs.
For misconduct or improper behavior to be just cause for dismissal, the following guidelines must be met, except:

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a. It must be serious;
b. It must relate to the performance of the employees duties;
c.

It should not be used as a subterfuge for causes which are improper, illegal or unjustified;

d. It must show that the employee has become unfit to continue working for the employer.
The Company lawyer sent a memo to the employee informing him of the specific charges against him and giving
him an opportunity to explain his side. In a subsequent letter, the employee was informed that, on the basis of the
results of the investigation conducted, his written explanation, the written explanation of other employees as well
as the audit report, the management has decided to terminate his employment. The employee contended that his
termination was illegal for lack of procedural due process. Is the employees contention correct?
a) No, the employees written explanation and written explanation of the other employees were sufficient
basis for the employer to terminate his employment;
b) Yes, because the employer did not abide by the two-notice rule;
c) Yes, because he was not properly afforded the chance to explain his side in a conference;
d) No, because the written notice of the cause of dismissal afforded him ample opportunity to be heard and
defend himself, and the written notice of the decision to terminate him which states the reasons therefor,
complies with the two-notice rule.
The Supreme Court categorically declared that separation pay shall be allowed as a measure of social justice only
in those instances where the employee is validly dismissed for cause other than:
a) Serious Misconduct;
b) Gross and habitual neglect of duties;
c) Willful disobedience to lawful orders;
d) Fraud or willful breach of trust.
Bugay, an employee with only six (6) months of service, was dismissed due to redundancy. He is, under Art. 283
of the Labor Code, entitled to a separation pay of:
a. One (1) month pay;
b. One (1) year pay, Art. 283 of the Labor Code being explicit that "a fraction of at least six (6) months shall
be considered one ( 1) whole year";
c. Six (6) months pay;
d. One (1) year and six (6) months pay, as Art. 4 of the Labor Code mandates that "(a)ll doubts in the
implementation and interpretation of this Code xxx shall be resolved in favor of labor".
Which of the following is not a procedural due process requirement in the termination of an employee for just
cause?
a. A written notice to the employee specifying the grounds for his termination;
b. A written notice to the DOLE at least thirty (30) days before the effectivity of termination;
c.

A written notice to the employee stating that upon consideration of the circumstances, grounds have
been established to justify his termination;

d. An opportunity for the employee to present his evidence.


Under current jurisprudence, when the dismissal is for a just or authorized cause but due process is not observed,
the dismissal is said to be:
a) Void for denial of due process; hence, the employee should be reinstated;
b) Void for lack. of due process, the employee should be paid full backwages;
c) Valid, for the dismissal is with just/authorized cause, but the employer shall be liable for
nominal damages;
d) Valid, even if due process is not observed, hence reinstatement should not be ordered.
What is the quantum of evidence required in labor cases?
a. The degree of proof which produces the conclusion that the employee is guilty of the offense charged
in an unprejudiced mind;
b. Such amount of relevant evidence which a reasonable mind might accept as adequate to
justify a conclusion;

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c.

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That degree of proof which is greater in weight than the opposing party's evidence;

d. Such evidence which must be highly and substantially more probable to be true than not which
convinces the trier of facts of its factuality.
R was employed as an instructor of Cruz College located in Santiago City, lsabela. Pursuant to a stipulation in R's
employment contract that the college has the prerogative to assign R in any of its branches or tie-up schools as
the necessity demands, the college proposed to transfer him to llagan, a nearby town. R filed a complaint alleging
constructive dismissal since his re-assignment will entail an indirect reduction of his salary or diminution of pay
considering that additional allowance will not be given to cover for board and lodging expenses. R, however, failed
to prove that allowances were given in similar instances in the past. Is R's contention that he will suffer
constructive dismissal in view of the alleged diminution of benefit correct?
a) Yes, such transfer should require an automatic additional allowance; the non-granting of said
allowance amounts to a diminution of benefit;
b) No, R failed to present evidence that the college committed to provide the additional allowance or that
they were consistently granting such benefit as to have ripened into a practice which cannot be
peremptorily withdrawn. Hence, there is no violation of the rule against diminution of pay;
c) No, R's re-assignment did not amount to constructive dismissal because the college has the right to
transfer R based on contractual stipulation;
d) B and C.

ABC Tomato Corporation, owned and managed by three (3) elderly brothers and two (2) sisters, has been in
business for 40 years. Due to serious business losses and financial reverses during the last five (5) years, they
decided to close the business.
a. As counsel for the corporation, what steps will you take prior to its closure? (3%)
b. Are the employees entitled to separation pay? (2%)
If the reason for the closure is due to old age of the brothers and sisters:
c.

Is the closure allowed by law? (2%)

d. Are the employees entitled to separation benefits? (3%)


Answer:
a. Prior to its closure, there must be compliance of the procedural requirements, that is:
a) notice to DOLE 30 days prior to the intended termination; and
b) notice to the employees 30 days prior to the intended termination
b. No, because the closure was due to serious business losses and financial reverses.
c. Yes, the closure is allowed by law. As a rule, there are no requisites for a valid closure of a business. An
employer can close his business for any reasons.
d. Yes, the employees are entitled to separation pay because the closure is not due to serious business losses or
financial reverses.

Jose and Erica, former sweethearts, both worked as sales representatives for Magna, a multinational firm
engaged in the manufacture and sale of pharmaceutical products. Although the couple had already broken off their
relationship, Jose continued to have special feelings for Erica.
One afternoon, Jose chanced upon Erica riding in the car of Paolo, a co-employee and Erica's ardent suitor;
the two were on their way back to the office from a sales call on Silver Drug, a major drug retailer. In a fit of
extreme jealousy, Jose rammed Paolo's car, causing severe injuries to Paolo and Erica. Jose's flare up also
caused heavy damage to the two company-owned cars they were driving.
(A) As lawyer for Magna, advise the company on whether just and valid grounds exist to dismiss Jose. (4%)
(B) Assuming this time that Magna dismissed Jose from employment for cause and you are the lawyer of
Jose, how would you argue the position that Jose's dismissal was illegal? (4%)

Answer:
A. There exist a valid ground to dismiss Jose under analogous cause and not on ground of serious
misconduct because the misconduct was not done in relation to the performance of his duties.

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B. As lawyer of Jose, I will argue that the misconduct was done not in relation to the performance of his duties
and that there was no compliance of the procedural requirement for termination of employment.

Bobby, who was assigned as company branch accountant in Tarlac where his family also lives, was dismissed
by Theta Company after anomalies in the company's accounts were discovered in the branch Bobby filed a
complaint and was ordered reinstated with full backwages after the Labor Arbiter found that he had been denied
due process because no investigation actually took place.
Theta Company appealed to the National Labor Relations Commission (NLRC) and at the same time wrote
Bobby, advising him to report to the main company office in Makati where he would be reinstated pending appeal
Bobby refused to comply with his new assignment because Makati is very far from Tarlac and he cannot bring his
family to live with him due to the higher cost of living in Makati.
(A) Is Bobby's reinstatement pending appeal legally correct? (4%)
(B) Advise Bobby on the best course of action to take under the circumstances. (4%)

Answer:
A. Yes, because the reinstatement order of the labor arbiter is immediately and self executory.
B. Obey the transfer order. As a rule, transfer order is a valid exercise of management prerogative as long as
there is no demotion in rank and diminution of benefits even if the same may cause inconvenience to the
employee. Bobby cannot also demand for payroll reinstatement because the option to choose between actual
and payroll reinstatement is with the employer and not with the employee.
After vainly struggling to stay financially afloat for a year, LMN Corp. finally gave up and closed down its
operations after its major creditors filed a petition for LMN's insolvency and liquidation. In this situation, LMN's
employees are entitled to _________ as separation pay. (1%)
(A) one-half month pay for every year of service
(B) one month pay for every year of service
(C) one-half month pay
(D) one month pay
(E) no separation pay at all
2014 Bar Question No. 10
Luisas first boss was a Japanese national whom she got along with. But after two years, the latter was
replaced by an arrogant Indian National who did not believe her work output was in accordance with international
standards. One day, Luisa submitted a draft report filled with typographical errors to her boss. The latter scolded her,
but Luisa verbally fought back. The Indian boss decided to terminate her services right then and there. Luisa filed a
case for illegal dismissal with the Labor Arbiter claiming arbitrariness and denial of due process. If you were the Labor
Arbiter, how would you decide the case? (4%)
Answer:
There was illegal dismissal because there was no just cause for the termination of employment. The
submission of draft report filled with typographical error cannot be considered duty it must not be considered just
cause. This can be considered gross neglect of duty, but to consider gross and willful neglect of duty it must not be
isolated act. It must be gross and habitual.
There was denial of due process because she was dismissed right then and there, neglecting the requirement
of notice and hearing.
2014 Bar Question No. 21
An accidental fire gutted the JKL factory in Caloocan. JKL decided to suspend operations and requested its
employees to stop reporting for work. After six (6) months, JKL resumed operations but hired a new set of employees.
The old set of employees filed a case for illegal dismissal. If you were the Labor Arbiter, how would you decide the
case? (4%)
Answer:
There was illegal dismissal. An employer is allowed only to suspend its operation for 6 months, after 6
months, the employer will resume operation and readmit back the employees. The hiring of new set of employees and
failure to readmit the old employees amounts to constructive dismissal. Constructive dismissal is tantamount to illegal
dismissal.
2014 Bar Question No. 22.
Despite a reinstatement order, an employer may choose not to reinstate an employee if: (1%)
(A) there is a strained employer-employee relationship
(B) the position of the employee no longer exists
(C) the employers business has been closed

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(D) the employee does not wish to be reinstated


2014 Bar Question No. 24
Lanz was a strict and unpopular Vice-President for Sales of Lobinsons Land. One day, Lanz shouted
invectives against Lee, a poor performing sales associate, calling him, among others, a "brown monkey." Hurt, Lee
decided to file a criminal complaint for grave defamation against Lanz. The prosecutor found probable cause and filed
an information in court. Lobinsons decided to terminate Lanz for committing a potential crime and other illegal acts
prejudicial to business. Can Lanz be legally terminated by the company on these grounds? (4%)
Answer:
Yes, Lanz can be legally terminated by the company under this ground under Article 296. Commission of a
crime or offense by employee to employer or any immediate member of his family or his duly authorized
representative. There is just cause for terminating his employment even if the prosecutor did not found probable
cause.
Title III Retirement from the Service.
Article 301 Retirement:
Any employee may be retired upon reaching the retirement age established in the collective
bargaining agreement or other applicable employment contract.
In case of retirement, the employee shall be entitled to receive such retirement benefits as he may have
earned under existing laws and any collective bargaining agreement and other agreements: Provided,
however, That an employees retirement benefits under any collective bargaining and other agreements shall
not be less than those provided therein.
In the absence of a retirement plan or agreement providing for retirement benefits of employees in the
establishment, an employee upon reaching the age of sixty (60) years or more, but not beyond sixty-five (65)
years which is hereby declared the compulsory retirement age, who has served at least five (5) years in the
said establishment, may retire and shall be entitled to retirement pay equivalent to at least one-half (1/2)
month salary for every year of service, a fraction of at least six (6) months being considered as one whole
year.
Unless the parties provide for broader inclusions, the term one-half (1/2) month salary shall mean
fifteen (15) days plus one-twelfth (1/12) of the 13th month pay and the cash equivalent of not more than five
(5) days of service incentive leaves.
Retail, service and agricultural establishments or operations employing not more than ten (10)
employees or workers are exempted from the coverage of this provision.
Violation of this provision is hereby declared unlawful and subject to the penal provisions under
Article 288 of this Code.
Coverage:
The retirement pay law under this article applies to private sector employees who have served the employer
establishment for at least 5 years and reached age 60 for optional retirement or sixty-five for compulsory retirement. It
covers either full-time or part-time employees, regular or non-regular.
The retirement pay law applies to all employees in the private sector regardless of their position, designation
or status and irrespective of the methods by which their wages are obtained except those specifically exempted.
Under new Kasambahay law, there is no provision with respect to retirement of domestic workers.
Query: With respect to workers paid by result, are they entitled to retirement pay?
Answer:
Yes. The retirement pay law applies to all employees in the private sector regardless of their position,
designation or status and irrespective of the methods by which their wages are obtained.
2 kinds of Retirement:
1. Compulsory
2. Optional
Compulsory takes place at the age of 65 while optional is primarily determined by the collective bargaining
agreement or other employment contract or employers retirement plan.
In the absence of any provision on optional retirement in a collective bargaining agreement, other employment
contract or employers retirement plan, an employee may optionally retire upon reaching the age of 60 years or more

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but not beyond 65 years, provided he has served at least 5 years in the establishment concerned. This prerogative is
exclusively lodged in the employee.
Where the CBA itself gives the option to retire to either the employer or the employee, such provision is valid
and the employers act of retiring an employee who is of retirable age as defined in the CBA is a valid exercise of the
option.
Pwede sa CBA, ang optional retirement age is 40 years and rendered at least 5 years in the establishment.
The optional retirement age provided in the CBA or employment contract must be accepted by the employees.
Meaning, there must be free conformity by the employees affected. Acceptance by the employees of an early
retirement age option must be explicit, voluntary, free and an uncompelled.
While an employer can unilaterally retire an employee earlier than the legally permissible ages under the labor
code, this prerogative must be exercised pursuant to a mutually instituted retirement plan.
In other words only the execution or exercise of the option may be unilateral but the adaption or institution of
the retirement plan must be mutually instituted containing such option. The option in order to be valid must be
voluntary accented to by the employee or at least by the majority of them through bargaining representative.
Underground mining: the optional retirement age is 50: compulsory is 60; have rendered at least 5
years of service
Exception from Coverage: (retirement pay law under the Labor Code)
Government employees, domestic helper, employees of retail, service and agricultural establishments or
operations that regularly employ not more than 10 workers. They may not be given retirement pay.
What is the amount of retirement pay?
The retirement pay is equal to month pay per year of service.
What constitutes month pay?
15 days salary + 1/12 of 13th-month pay + cash value of the 5 day service incentive leave, totaling to 22.5 days
per year. This is the minimum. The retirement pay package can be improved upon by voluntary company policy or
particular agreement with employee or through a CBA.
Workers paid by result are entitled to retirement pay; the basis for determination of salary shall be their
average daily salary.
Query: May an employee claim retirement benefits and separation pay simultaneously?
Answer:
Yes. The general rule is that separation pay arising from forced termination on one hand, and benefits given
as a contractual right due to many years of faithful service do not necessarily exclude each other.
Exception:
When the CBA or the retirement plans expressly provides that the employee cannot receive both
benefits, the employee cannot claim such benefits simultaneously.
However, in the absence of any provisions to the contrary, separation pay under the labor code and
retirement benefits under the employers retirement plan may be claimed simultaneously.
Also, receipt of the retirement pay under the Labor Code does not bar the receipt of the SSS retirement
benefits.
The employees retirement pay under the Labor Code, retirement policy, or CBA is separate and distinct from
that retirement benefits under SSS Act.
Penal Provisions and Liabilities:
Art. 302. Penalties.
Except as otherwise provided in this Code, or unless the acts complained of hinge on a question of
interpretation or implementation of ambiguous provisions of an existing collective bargaining agreement, any
violation of the provisions of this Code declared to be unlawful or penal in nature shall be punished with a
fine of not less than One Thousand Pesos (P1,000.00) nor more than Ten Thousand Pesos (P10,000.00) or
imprisonment of not less than three months nor more than three years, or both such fine and imprisonment at
the discretion of the court.
In addition to such penalty, any alien found guilty shall be summarily deported upon completion of service of
sentence.

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Any provision of law to the contrary notwithstanding, any criminal offense punished in this Code, shall be
under the concurrent jurisdiction of the Municipal or City Courts and the Courts of First Instance. (As
amended by Section 3, Batas Pambansa Bilang 70)
Art. 303 Who are liable when committed by other than natural person.
If the offense is committed by a corporation, trust, firm, partnership, association or any other entity,
the penalty shall be imposed upon the guilty officer or officers of such corporation, trust, firm, partnership,
association or entity.
Prescription of Offenses and Claims
Art. 290. Offenses.
Offenses penalized under this Code and the rules and regulations issued pursuant thereto shall
prescribe in three (3) years.
All unfair labor practice arising from Book V shall be filed with the appropriate agency within one (1) year
from accrual of such unfair labor practice; otherwise, they shall be forever barred.
Art. 291. Money claims.
All money claims arising from employer-employee relations accruing during the effectivity of this
Code shall be filed within three (3) years from the time the cause of action accrued; otherwise they shall be
forever barred.
All money claims accruing prior to the effectivity of this Code shall be filed with the appropriate entities
established under this Code within one (1) year from the date of effectivity, and shall be processed or
determined in accordance with the implementing rules and regulations of the Code; otherwise, they shall be
forever barred.
Workmens compensation claims accruing prior to the effectivity of this Code and during the period from
November 1, 1974 up to December 31, 1974, shall be filed with the appropriate regional offices of the
Department of Labor not later than March 31, 1975; otherwise, they shall forever be barred. The claims shall
be processed and adjudicated in accordance with the law and rules at the time their causes of action accrued.
Art. 292. Institution of money claims.
Money claims specified in the immediately preceding Article shall be filed before the appropriate entity
independently of the criminal action that may be instituted in the proper courts.
Pending the final determination of the merits of money claims filed with the appropriate entity, no civil action
arising from the same cause of action shall be filed with any court. This provision shall not apply to
employees compensation case which shall be processed and determined strictly in accordance with the
pertinent provisions of this Code.
Prescription of Money Claims:
The General Rule:
The prescriptive period for all criminal offenses penalized under the Labor Code and the Rules and regulations
pursuant thereto is three (3) years from the time of commission thereof. The prescriptive period for ULP is one (1) year
from the time the acts complained of were committed. Otherwise, they shall be forever barred. The running of the 1
year period however, is interrupted during the pendency of the labor case.
The prescriptive period for money claims is three (3) years from the time the cause of action accrued;
otherwise, they shall be forever be barred. The cause of action does not accrue until the party obligated refuses
expressly or impliedly to comply with his duty.
Example:
A claim for the monetary equivalent of service incentive leave; the prescriptive period of such claim is
3 years from the time the employer refuses to pay monetary equivalent.
Actions for reinstatement prescribe in 4 years. The filing of a criminal case against the employee does not
have effect of suspending or interrupting the prescriptive period for filing an action for illegal dismissal. An action for
illegal dismissal is an administrative case which is entirely separate and distinct from a criminal case. Each may
proceed independently of the other.
BAR QUESTIONS - Set 11 Nos. 1-18:
BQ No. 1

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On October 30, 1980, A, an employee, was served notice of dismissal allegedly for gross dishonesty.
Forthwith, the union to which A was a member raised As dismissal with the grievance machinery as provided for in its
Collective Bargaining Agreement. At that point, negotiations for new CBA were in progress. Hence, both the union and
the Company had very little time to address As grievance. In fact, said grievance, as it were, slept the sleep of the
dead, being resolved only with finality on November 23, 1983 when the General Manager of the Company affirmed As
dismissal on the fifth and the last step of the grievance machinery.
A filed an action for illegal dismissal with the Arbitration Branch of the NLRC on November 25, 1983. The
company immediately filed a Motion to Dismiss on the ground of Prescription, invoking Article 290 of the Labor Code.
If you were the labor arbiter, how will you resolve the Companys Motion to dismiss?
Answer:
I will deny the motion to dismiss. The employee was dismissed and the matter of his dismissal has been
referred to the grievance machinery pursuant to the provisions of the existing CBA and the grievance machinery had a
final meeting quite a long while thereafter. The complaint for the illegal dismissal was then filed the action was not
barred by laches as the pendency matter before the grievance machinery affected the ripeness of course of action for
illegal dismissal.
BQ No. 2
A. State your agreement or disagreement with the following statement and explain your answer briefly: a criminal case
filed against an employee does not have the effect of suspending or interrupting the running of the prescriptive period
for the filing of an action for illegal dismissal.
B. State your agreement or disagreement with the following statement and explain your answer briefly: the period of
prescription in article 291 of the Labor Code applies only to money claims so that the period of prescription for the
other cases of injury to the rights of employees is governed by the Civil Code. Thus an action for reinstatement for
injury to an employees rights prescribes in four years as provided in Article 1146 of the Civil Code.
Answer:
A.
B.

True
True

BQ No. 3
The general manager of Junk Food Manufacturing Corp. dismissed Andrew Tan, a rank and file employee, on
the ground of insubordination. The general manager served on Andrew Tan the letter of termination effective upon
receipt which was on March 1992. Shocked by his unexpected dismissal, Andrew Tan confronted the general manager
and hit the latter on the head with a lead pipe. Junk Food Manufacturing filed a complaint in court against Andrew Tan
for less serious physical injuries. Somehow, Andrew Tan was acquitted by the court assigned to hear the criminal
case. A few days following his acquittal, or on March 1, 1996, Andrew Tan filed complaint against the company for
illegal dismissal, reinstatement and the payment of backwages and damages.
a. Was the complaint filed by Andrew Tan for illegal dismissal within the reglementary period granted by
law?
b. What reliefs may Andrew be entitled to if the labor arbiter finds just cause for termination but that the
requirements of notice and hearing are not complied with?
Answer:
A. Yes, the prescriptive period for illegal dismissal is 4 years. His complaint of illegal dismissal does not
prescribe but the filing of criminal case against Andrew Tan does not suspend the running of prescriptive period.
B. nominal damages
BQ No. 4
Nonoy Santos was employed as a middle management employee in Company A. In the course of his
employment he was told by his superiors of the possible merger between Company A and Company B. fearing that he
might lose his job upon merger of the two companies, he looked for and found another job. Upon resignation he was
given separation pay equivalent to one months pay per year of service, although technically speaking, he is not
entitled thereto being a resigned employee. Mr. Santos executed a quitclaim and waiver upon receipt of separation
benefits. The merger between the two companies turned out to be a buy-out by the latter of the former. At this point,
company As employees, save for a handful, were dismissed upon payment of separation pays equivalent to 3 months
for every year of service because of the unions efforts on the workers behalf. Feeling aggrieved, Santos subsequently
charged Company A with discrimination, constructive dismissal, underpayment, resignation, separation benefits and
reinstatement. Thelabor arbiter and NLRC sustained Company As position that Santos quitclaim is valid, and that as
manager he knew the import of what he was signing and therefore, estopped from claiming otherwise. Are the labor
arbiter and the NLRC correct?
Answer:
Take note of the requirements for a valid waiver and quitclaim. The NLRC and labor Arbiter are correct, he
was not coerced in resigning and he voluntarily resigned and upon receipt of the separation pay he voluntarily signed
the waver and quitclaim. He is estopped from his claim.

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BQ No. 5
International Motors Corporation (IMC) undertook a reorganization of the company and right-sizing of its
personnel complement due to the current financial crisis. The affected employees were given the option to resign with
corresponding generous benefits attending such option. The said employees opted to resignation on account of these
negotiated benefits; and after receipt of which, they executed quitclaims in favor of IMC. Immediately thereafter, the
employees voluntarily resigned for valuable consideration and that in any case, they have executed quitclaims in favor
of the company. The employees, however, claimed that they were forced to resigned, and that they executed the
quitclaims only because of dire necessity, is the company guilty of illegal dismissal? Why?
Answer:
No. The company is not guilty of illegal dismissal because of the fact that the employees were given option to
resign with corresponding general benefits and that these employees opted to resign on account of negotiated
benefits. Nothing in the facts showed that their consent on waiver of benefits under the labor code was vitiated by
fraud and violence.
BQ. No. 7
Ricky Martin worked for more than 10 years in IGB Corporation. Under the terms of the personnel policy on
retirement, any employee who had reached the age of 65 and completed at least 10 years of service would be
compulsorily retired and paid 30 days for every year of service. Ricky Martin, whose immigrant visa to the USA had
just been approved, celebrated his 60 th birthday recently. He decided to retire and move to California where the son
who petitioned him had settled. The company refused to grant him any retirement benefits on the ground that he had
not yet attained the compulsory retirement age of 65 years as required by its personnel policy; moreover , it did not
have a policy on optional or early retirement. Taking up the cudgels for Ricky Martin, the union raised the issue in the
grievance machinery as stipulated in the CBA. No settlement was arrived at, and the matter was referred to voluntary
arbitration. If you were the Voluntary Arbitrator, how would you decide? Briefly explain the reasons for your award.
Answer:
Considering that Ricky Martin was already 60 years of age and had served in fact 10 years already, he is
already entitled under the labor code.
BQ. No. 8
A collective bargaining agreement (CBA) between company A and its employees provides for optimal
retirement
benefits for employees who have served the company for over 25 years regardless of age, equivalent
to one- and-one-half months pay per year of service based on the employees last pay. The CBA further provides that
employees whose services are terminated, except for cause, shall receive said retirement benefits regardless of age
or service record with the company or to the applicable separation pay provided by law, whichever is higher. The
company, due to poor business conditions decided to cease operations and gave its employees the required one
months advance notice as well as notice to DOLE, with the further advice that each employee may claim his
corresponding separation or retirement benefits whichever is higher after executing the required waiver and quitclaim.
Dino Ramos and his co-employees who have all rendered more than 25 years of service, received their retirement
benefits. Soon after, Ramos and others similarly situated demanded for their separation pay. The company refused,
claiming that under the CBA they cannot receive both benefits. Who is correct, the employees or the company?
Answer:
The company is correct. The general rule is that in the absence of provisions that the employees will not
receive both benefits, the employees can receive both the retirement pay and separation pay except when the CBA
expressly provides that the employee cannot receive both benefits. However; in this case there is a provision in the
CBA that if services of the employee is terminated he can received the retirement benefits or separation pay under
the law whichever is higher, in other words the employee cannot received both benefits.
BQ No. 9
B. Ukol was compulsorily retired by his employer, Kurot Bottling Corporation, upon the formers reaching 65 of
age, having rendered 30 years of service. Since there was no CBA, B. Ukol was paid his retirement benefits computed
15 days pay for every year of service, based on B. Ukols highest salary during each year of his employment. Not
satisfied, B. Ukol filed action with the arbitration branch of the NLRC claiming that his retirement benefits were not
computed properly. Is B. Ukols claim meritorious? What are the components of his retirement benefts?
Answer:
His claim is meritorious, under the labor code the retirement pay is month pay every year of service. The
month pay is composed of 15 days salary plus the monetary equivalent of 5 days service incentive leave (WON used)
plus 1/12 or 2.5 days of the 13th month pay totaling 22.5 days per year.
BQ No. 11
What exception(s) do(es) the law on retirement benefits provide(s) if any?
Answer:

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Govt employees, domestic helpers, retail and service and agricultural establishment employing not more than
10 employees.
BQ No. 12
How many years of service is the underground mine employee required to have rendered in order to be
entitled to retirement benefits?
a. 5;
b. 10;
c.

15;

d. 20.
BQ No. 13
What is the prescriptive period of all criminal offenses penalized under the Labor Code and the Rules
Implementing the Labor Code?
a. 3 years;
b. 4 years;
c.

5 years;

d. 10 years.
BQ No. 14
A. As a rule, when is retirement due?
B. When is retirement due for underground miners?
Answer:
A. The compulsory retirement age is 65 years while the optional retirement age depends on CBA, and
employers retirement plan. In the absence of such provision in the CBA or employers retirement plan, the optional
retirement age is 60 years.
B. 50 years for optional retirement and 60 years for compulsory retirement.
BQ No. 15
After thirty (30) years of service, Beta Company compulsorily retired Albert at age 65 pursuant to the
company's Retirement Plan. Albert was duly paid his full retirement benefits of one (1) month pay for every year of
service under the Plan. Thereafter, out of compassion, the company allowed Albert to continue working and paid him
his old monthly salary rate, but without the allowances that he used to enjoy.
After five (5) years under this arrangement, the company finally severed all employment relations with Albert;
he was declared fully retired in a fitting ceremony but the company did not give him any further retirement benefits.
Albert thought this treatment unfair as he had rendered full service at his usual hours in the past five (5) years. Thus,
he filed a complaint for the allowances that were not paid to him and for retirement benefits for his additional five (5)
working years, based either on the company's Retirement Plan or the Retirement Pay Law, whichever is applicable.
(A) After Albert's retirement at age 65, should he be considered a regular employee entitled to all his previous
salaries and benefits when the company allowed him to continue working? (4%)
(B) Is he entitled to additional retirement benefits for the additional service he rendered after age 65? (4%)
Answer:
A. No. After retirement, the company is under no obligation to require him to continue working in the company.
If he continues and is allowed by the employer it does not mean that he is entitled to the same benefits and retirement
benefits.
B. No.
BQ No. 16
Chito was illegally dismissed by DEF Corp. effective at the close of business hours of December 29, 2009. He can file
a complaint for illegal dismissal without any legal bar within _________. (1%)
(A) three (3) years
(B) four (4) years

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(C) five (5) years


(D) six (6) years
(E) ten (10) years
BQ No. 17
If he has money claims against DEF Corp., he can make the claim without any legal bar within _________. (1%)
(A) three (3) years
(B) four (4) years
(C) five (5) years
(D) six (6) years
(E) ten (10) years
BQ No. 18
At age 65 and after 20 years of sewing work at home on a piece rate basis for PQR Garments, a manufacturerexporter to Hongkong, Aling Nena decided it was time to retire and to just take it easy.
Is she entitled to retirement pay from PQR? (1%)
(A) Yes, but only to one month pay.
(B) No, because she was not a regular employee.
(C) Yes, at the same rate as regular employees.
(D) No, because retirement pay is deemed included in her contracted per piece pay.
(E) No, because homeworkers are not entitled to retirement pay.
BAR QUESTION 2014.
No. 2
Lucy was one of approximately 500 call center agent at Hambergis, Inc. She was hired as a contractual
employee four years ago. Her contracts would be for duration of five (5) months at a time, usually after a one month
interval. Her rehiring was contingent on her performance for the immediately preceding contract. Six (6) months after
the expiration of her last contract, Lucy went to Hambergis personnel department to require why she was not yet being
recall to work. She was told that her performance during her last contact was below average. Lucy seeks your legal
advice about her chances of getting her job back. What will your advice be?
Answer:
I will advise Lucy to file a complaint of illegal dismissal. The repeated rehiring of Lucys services for four years
are sufficient evidence that she performed activities necessary or indispensable to the usual business or trade of
employer. She is considered a regular employee because of the fact of repeated rehiring. As provided by law,
successive renewal of fixed period employment will result in a regular employment. Lucy is performing activity
necessary or desirable to the usual business of Hambergis.
No. 5
Liwayway Glass had 600 rank-and-file employees. Three rival unions A, B, and C participated in the
certification elections ordered by the Med-Arbiter. 500 employees voted. The unions obtained the following votes: A200; B-150; C-50; 90 employees voted "no union"; and 10 were segregated votes. Out of the segregated votes, four
(4) were cast by probationary employees and six (6) were cast by dismissed employees whose respective cases are
still on appeal. (10%)
(A) Should the votes of the probationary and dismissed employees be counted in the total votes cast for the purpose
of determining the winning labor union?
Answer: Yes. Probationary employees can vote. The code makes no distinction as to the employment status of
the employee as basis for eligibility to vote in certification election. Also dismissed employees who questioned the
legality of their dismissal in a forum of appropriate jurisdiction can vote unless prior to the selection their dismissal
is declared valid.
(B) Was there a valid election?
Answer: Yes. Majority of the employees in the bargaining unit cast their votes.
(C) Should Union A be declared the winner?
Answer: No, because he did not obtain the majority of valid votes cast
(D) Suppose the election is declared invalid, which of the contending unions should represent the rank-and-file
employees?
Answer: None.
(E) Suppose that in the election, the unions obtained the following votes: A-250; B-150; C-50; 40 voted no union; and
10 were segregated votes. Should union A be certified as the bargaining representative?

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Answer: Yes if the segregated votes are in his favor. The segregated votes must be opened because the same
will materially alter the result of the election.
No. 6
Lina has been working as a steward with a Miami, U. S.A based Loyal Cruise Lines for the past 15 years.
She was recruited by a local manning agency, Macapagal Shipping, and was made to sign a 10 month employment
contract every time she left for Miami. Macapagal Shipping paid for Linas round trip travel expenses from Manila to
Miami. Because of a food poisoning incident which happened during her last cruise assignment, Lina was not re-hired.
Lina claims she has been illegally terminated and seeks separation pay. If you were the Labor Arbiter handling the
case, how would you decide? (4%)
Answer: Take Note: Seafarers Contractual employees.
No. 7
Non-lawyers can appear before the Labor Arbiter if: (1%)
(A) they represent themselves
(B) they are properly authorized to represent their legitimate labor organization or member thereof
(C) they are duly-accredited members of the legal aid office recognized by the DOJ or IBP
(D) they appear in cases involving an amount of less than Php5,000
No. 8
As a result of a bargaining deadlock between Lazo Corporation and Lazo Employees Union, the latter staged
a strike. During the strike, several employees committed illegal acts. Eventually, its members informed the company of
their intention to return to work. (6%)
(A) Can Lazo Corporation refuses to admit the strikers?
Answer: Yes, those employees who committed illegal acts may not be admitted to work. However for
those who did not commit illegal acts, they can go back to their work.
(B) Assuming the company admits the strikers; can it later on dismiss those employees who committed illegal
acts?
Answer: No, because admission to those employees who committed illegal acts tantamount to
waiver/condonation.
(C) If due to prolonged strike, Lazo Corporation hired replacements; can it refuse to admit the replaced
strikers?
Answer: No. Participation in a strike does not sever ones employment.
No. 11
Lionel, an American citizen whose parents migrated to the U.S. from the Philippines, was hired by JP Morgan
in New York as a call center specialist. Hearing about the phenomenal growth of a call center industry in his parents
native land, Lionel sought and was granted a transfer as a call center manager for JP Morgans operations in Taguig
City. Lionels employment contract did not specify a period for his stay in the Philippines. After three years of working
in the Philippines, Lionel was advised that he was being recalled to New York and being promoted to the position of
director of international call center operations. However, because of certain family reasons, Lionel advised the
company of his preference to stay in the Philippines. He was dismissed by the company. Lionel now seeks your legal
advice on: (6%)
A.

Whether he has a cause of action.


Answer: Yes. Lionel has cause of action. He can refuse transfer because such transfer is for abroad and
is not similar to transfer within the country. Also, he can validly refuse such transfer because the same is
coupled with promotion.
B.
whether he can file a case in the Philippines
Answer: Yes. Forum non convenience is not applicable because he is working in the Philippines. JP
Morgan is a resident corporation and therefore subject to Philippine labor laws. His complaint can be filed
with NLRC which has territorial jurisdiction over his workplace.
C.
What are his chances of winning?
Answer: There is a high chance of winning; his refusal to comply with transfer is valid because such
transfer is for abroad.
No. 12
Which of following groups does not enjoy the right to self-organization? (1%)
A.
those who work in a non-profit charitable institution
B.
those who are paid on a piece-rate basis
C.
those who work in a corporation with less than 10 employees
D.
those who work as legal secretaries.- those are confidential employees

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No. 15
Our Lady of Peace Catholic School teachers and employees labor union ( OLPCS-TELU) is a legitimate labor
organization composed of vice-principals, department heads, coordinators, teachers, non-teaching personnel of Our
Lady of Peace Catholic School(OLPCS).
PLPCS-TELU subsequently filed a petition for certification election among the teaching and non-teaching
personnel of OLPCS before the Bureau of Labor Relations (BLR) of the Department of Labor and Employment
(DOLE). The Med-Arbiter subsequently granted the petition and ordered the conduct of a joint certification election for
the teaching and non-teaching personnel of OLPCS.
May OLPCS-TELU be considered a legitimate labor organization?
Answer: Yes, the inclusion of non-teaching personnel does not affect the legitimacy of the union. The effect of such
membership is that the non-teaching personnel are deemed automatically removed.
No. 16
Samahang East Gate Enterprise (SEGE) is a labor organization composed of the rank-and-file employees of
East Gate Enterprise (EGE), the leading manufacture of all types of gloves and aprons.
EGE was later requested by SEGE to bargain collectively for better terms and conditions of employment of all
the rank-and-file employees of EGE. Consequently, EGE filed petition for certification election before the Bureau of
Labor Relations (BLR).
During the proceedings, EGE insisted that it should participate in the certification process. EGE reasoned that
since it was the one who filed the petition and considering that the employees concerned were its own rank-and-file
employees, it should be allowed to take and active part in the certification process. Is the contention of EGE proper?
Explain (5%)
Answer:
No. Employer is merely a bystander An employer can file a certification election only if requested to bargain
afterwards it is only a bystander.
No. 17
PhilHealth is a government-owned and controlled corporation employing thousands of Filipinos. Because of
the desire of the employees of PhilHealth to obtain better terms and conditions of employment from the government,
they formed the PhilHealth Employees Association (PEA) and demanded PhilHealth to enter into negotiations with
PEA regarding terms and conditions of employment which are not fixed by law.(4%)
A.

Are the employees of PhilHealth allowed to self-organized and form PEA and thereafter demand PhilHealth to
enter into negotiations with PEA for better terms and conditions of employment?
Answer: Yes, section 2 of executive order No. 180 provides that all government employees can form, join or
assist employees organizations of their own choosing for the furtherance and protection of their interests.
However they are allowed to negotiate only those terms and conditions of employment not fixed by law.

B.

In case of unresolved grievances, can PEA resort to strikes, walkouts and other temporary work stoppages to
pressure the government to accede to their demands?
Answer: No. They are not allowed to strike.

No. 18
The procedural requirements of a valid strike include: (1%)
A.
B.
C.
D.

a claim of either unfair labor practice or deadlock in collective bargaining


Notice of strike filed at least 15 days before a ULP-grounded strike or at least 30 days prior to the
deadlock in a bargaining grounded strike.
Majority of the union membership must have voted to stage the strike with notice thereon furnished to
the National Conciliation and Mediation Board (NCMB) at least 24 hours before the strike vote is taken.
Strike vote results must be furnished to NCMB at least seven (7) days before the intended strike.

No. 19
Lincoln was in the business of trading broadcast equipment used by television and radio networks. He
employed Lionel as his agent. Subsequently, Lincoln set up Liberty Communications to formally engage in the same
business. He requested Lionel to be one of the incorporators and assigned to him 100 Liberty shares. Lionel was also
given the title Assistant Vice-President for sales and head of technical coordination. After several months, there were
allegations that Lionel was engaged in under the table dealings and received confidential commissions from
Libertys clients and suppliers. He was, therefore, charged with serious misconduct and willful breach of trust, and was
given 48 hours to present his explanation on the charges. Lionel was unable to comply within 48 hours deadline and
was subsequently barred from entering company premises. Lionel then filed a complaint with the Labor Arbiter

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complaint alleging that the case involved an intra-corporate controversy which was within the jurisdiction of the
Regional Trial Court (RTC).
If you were the Labor Arbiter assigned to the case, how would you rule on the companys motion to
dismiss? (5%)
Comment ni mam: ang ijang position aside from being a stock holder is assistant vp for sales and head of technical
coordination. VP is corporate officer while head of technical is considered employee.
Answer:
Mainland vs. Movilla: If a corporate officer who is at the same time an employee of the corporation,
labor arbiter has jurisdiction.

the

No. 23
Luningning Foods engaged the services of Lamitan Manpower, Inc., a bona foe independent contractor, to
provide tasters that will check on food quality. Subsequently, they made regular employees of the latter as they are
performing functions necessary and desirable to operate the companys business. Luningning rejected the demand for
regulation. On behalf of the tasters, the union then filed a notice of strike with the Department of Labor (DOLE). In
response, Luningning sought a restraining order from the Regional Trial Court (RTC) arguing that the DOLE does not
have jurisdiction over the case since it does not have an employer-employee relationship with the employees of an
independent contractor. If you were the RTC judge, would you issue a restraining order against the union? (4%)
Answer: Definition of Labor Dispute
Labor Dispute includes any controversy or matter concerning terms or conditions of employment or the
association or representation of persons in negotiating, fixing, maintaining changing, or arranging the terms and
conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and
employee.
In this Case, it is the NLRC who has jurisdiction over the same because there is a labor dispute. As a rule,
labor dispute is not conditioned upon the existence of employment relationship. Thus, as an RTC judge, I will not issue
the TRO. I will dismiss the case on ground of lack of jurisdiction. It is the NLRC through its division who can issue the
injunction.
No. 26
Liwanag Corporation is engaged in the power generation business. A stalemate was reached during the
collective bargaining negotiations between its management and the union. After following all the requisites provided by
the law, the union decided to stage a strike. The management sought assistance of the Secretary of Labor and
Employment, who assumed jurisdiction over the strike and issued a return-to-work order. The union defied the latter
and continued the strike. Without providing any notice, Liwanag Corporation declared everyone who participated in the
strike having lost their employment. (4%)
A.

Was Liwanag Corporations action valid?


Answer:
When the employees defy a return to work order they can be dismissed from employment because it amounts
to illegal act. This is a just cause for dismissal under analogous causes but the requirement of procedural due
process must be observe.
The action of the corporation was invalid for the reason that it did not accord the employees procedural
requirements. However there was a just cause for dismissal. Hence, the dismissal was legal and the employer is
liable only for nominal damages for failure to observe due process.

B.

If, before the DOLE Secretary assumed jurisdiction, the striking union members communicated in writing their
desire to return to work, which offer Liwanag Corporation refused to accept, what remedy, if any does the union
have?
Answer:
They can file for illegal dismissal. The failure of employer to readmit the strikers amounts to illegal lockout. A
strike is a temporary stoppage of work arising from a labor dispute. Lockout means refusal of employer to furnish
work to employee arising from labor disputes. A valid lockout must comply with the legal requirements the same
to that of a strike. In this case, failure to readmit means illegal lockout.
No. 27
The jurisdiction of the National Labor Relations Commission does not include: (1%)
Exclusive appellate jurisdiction over all cases decided by the Labor Arbiter.
exclusive appellate jurisdiction over all cases decided by the Regional Directors or hearing officers
involving the recovery of wages and other monetary claims and benefits arising from employer-employee
relations where the aggregate money claim of each does not exceed five thousand pesos (Php5, 000)
C.
original jurisdiction to act as a compulsory arbitration body over labor disputes certified to it by
the Regional Directors (Only Secretary of Labor can certify cases to NLRC)
D.
Power to issue a labor injunction
A.
B.

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-END-

181