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LABOR LAW
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Labor Standards
Labor Relations
Social Legislation
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Social Security System (R.A. 1 161 as amended by R.A.8292........ "142


GovernmentServicelnsuranceSystem(R.n. g2g1)................. 14g
LimitedPortabilityLaw(R.A.76gg).................
Employee's.Compensation and State lnsurance Fund (p.D.626) 155
Paternity Leave Act of 1996 (R.A. 3187)............ ............;..... 160
Retirement Pay Law (R.A. 7641Amending Art. 287 of LC)........-... 161
Anti.dexualHarassmentAct(R.A.7877).......
ActsAgainstChildLakior(R.A.9231).................
13thMonth Pay Law (P.D.851)......... 166
Migrant Workers and Overseas Filipino Act of 1995 (R.A. gO42)
as amended and further amended by R.A. 1AO2L..... 168
Magna Carta for Women (R.A. 9710)....... 172
Magna Carta for the Disabled Persons (R.A.9442)................. 174
Bibliog raphy..... ....................r................,.......................... 176

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LABOR LAW
LABOR RELATIONS

b. Collective bargaining
negotiations;
c. Peaceful and concerted activities
TITLE ONE: POLICY AND DEFINITIONS including the right to strike in
accordance with law; and
Labor Relations - the interactions between d. Participate in policy and decision-
the employer and employees and their making processes affecting their rights
representatives and the mechanism by which and benefits as may be provtded by
the standards and other terms and conditions law.
of employment are negotiated, adjusted and
enforced. (The Labor Code with Comments Parties to Labor Relations Cases
and Cases 2007, Azucena, vol. ll, p.10) 1. Employee's organization;
2. Managemenf;
Labor Relations Laws - define the status, 3. The public - always to be considered in
rights, and duties and the institutional dispute between labor and capital, and it
mechanisms that govern the individual and has been held that the rights of the
collective interactions of employers, general public are paramount; and
employees or their representatives. 4. The State.
{Everyone's Labor Code, Azucena,2007, p.4)
Note: Employer and employees are ACTIVE
Note: Absent an employer-employee relation, parties while the public and the state are
there is no labor relation to speak of. lf there is PASSIVE parties. (Foquiz, 2006, p.3)
no Er-Ee relationship between the parties,
there is no basis for organizing for purposes of Principle of Non-Oppression - mandates
collective bargaining. capital and labor not to act oppressively
against each other or impair the interest and
"Labor Relations" may be distinguished from convenience of the public. The protection to
"labor standards" in that the latter is that part labor clause in the Constitution is not designed
of labor law which prescribes the minimum to oppress or
terms and conditions of employment which the
employer is required to grant to its employees.
(The Labor Code of the Philippines Annotated 211
2005, Chan, Vol. ll)

CHAPTER I. GENERAL PROVISIONS

ART.211: DECLARATION OF POLICY

Collective bargaining process is possible only


when there is a labor organization, i.e.
1. Labor union', or
2. Employee assocrafion.

Labor relations policy under the Labor


Code is embodied in Secfion 3, Article Xlll
of the 1987 Constitution which guarantees
to all workers their right, among others, to:
a. Self-organization;

EXECUTIVE COMMIfiEE:
EZEKIEL JOSHUA VILLENA overall chairperson, MINISTER MOISES DU chairperson for academics, DiOANIVIE JOMARE JUNASA
chairperson for hotel operations, MARIE MICAELA 5TA" ANA vice-chairperson for operations, MIKHAIL MAVERICK TUMACDER vice-
chairperson for secretariat, JACKIE LOU LAMU6 vice-chairperson for finance, DIANA JEAN TUMON vice.chairperson for edp, JASSEN
RALPH LEE vice-chairperson for logistics

sUBJECT COilMlfiEE3
HAROLD CHRISIIAN TALLEDO subject chair, AYLA HERAZADE SALENDAB assistant subject chair, PINKY VELOSO edp, NEO VALERIO labor
standards, MARK LESTER TAMONDONG labor relations, DONNA FRANCES YLADE social legislation

MEMBERS3
jhony Martin Alba, Karlo Dialogo,
Vanessa Guinto, Kaye Coleen Lambino, Karlon Pambid, Jose Carlos Torres, Ramayana Saidamen, Jose
Angelo David, Kamille Deanne Lagasca, Raynan Larosa
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Arbitration - the submission of a dispute to an DOLE; the term includes a local/chapter


impartial person for determination on the basis directly chartered by a legitimate federation or
of evidence and arguments of the parties. The national union which has been duly reported to
arbiteds decision or award is enforceable upon the Department in accordance with Section 2,
the disputants. This maybe voluntary or Rule Vl, Book V, IRR of LC (See notes under
compulsory. Arts. 234 and 242, LCJ.

For Art. 211 (9"), see Arf. 255 for more Company Union - any labor organization
discussions. whose formation, function or administration
has been assisted by any act defined as ULP
CHAPTER II. DEFINITIONS under the Labor Code.
ART.212; DEFINITIONS
Employer Bargaining Representative - means a
1. One who employs the services of others; legitimate labor organization whether or not
one for whom employees work and who employed by the employer.
pays their wages or salaries (Feati
University v. Bautista, GR No. L-21278 Labor Dispute - includes any controversy or
December 27, 1966) matter concerning:
2. Any person acting in the interest of an 1. Terms or conditions of employment; OR
employer, directly or indirectly. The term 2. Association or representation of persons in
does not include a labor oiganization or negotiating, fixing, maintaining, changing
any of its officers and agents, EXCEPT or arranging the terms and conditions of
, when acting as an employer. The mere employment.
fact that respondent is a labor union does
not mean it cannot be considered an REGARDLESS of whether the disputants
employer for persons who work for it. stand in the proximate relation of employer
Much less should it be exempted from and employee.
labor laws. (Bautista v. lnciong, GR No. L-
52824, March 16, 1988) Test: Depends on whether it
involves or
concerns terms, conditions of employment, or
Employee - includes: (CED) representation (SMC Employees Union-
1. Any person in the employ of an employer; PTGWA v. Bersamira, GR No. 87700, June
2. Any individual whose work has geased as 1s, 1990).
a result of or in connection with any
current labor dispute or because of any Even the question of employer-employee (Er-
unfair labor practice if he has not obtained Ee) relationship can be considered a "labor
any other substantially equivalent and dispute".
regular employmenf
3. One who has been Qismissed from work Types of Labor DisPutes
but the legality of the dismissal is being 1. Labor Standards Disputes {ComBeWo)
contested in a forum of appropriate a. Compensation (e.9. underpayment of
jurisdiction (D.O. No. 4G03, March 15,
200s).

The term shall not be limited to the


employees of a particular employer unless
the code explicitly states.

Types of Employees under the Labor Code


1. Managerial
2. Supervisory
3. Rank-and-file
Labor Organization - any union or
association of employees which exists in
whole or in part for the purpose of collective
bargaining with employers concerning terms
and conditions of employment. of the
agent of
Legitimate Labor Organization - any labor
organization which is duly registered with

65
LABOR tAW
LABOR RELATIONS

bargaining unit which is the majority TITLE TWO. NATIONAL LABOR


union); RELATIONS COMMISSION
c. llargaining disputes (e.9. refusal to
bargain (ULP); bargaining deadlock; CHAPTER I. CREATION AND
economic strike or lockout), coMPoslTroN
d. Qontract administration or personnel
policy disputes (e.9. noncompliance ART.213: NATIONAL LABOR RELATIONS
with CBA provisions (ULP if gross COMMISSION (as Amendd by R.A. 9347,
non-compliance with economic July 27,2006)
provisions); disregard of grievance
machinery; violation of no strike/no NLRC - an administrative body with quasi-
lockout agreement); and judicial fundions and the principal government
e. Employment tenure disputes (e.g. agency that hears and decides labor-
non-regularization of emPloYees; management disputes; attached to the DOLE
illegal termination; non-issuance of for program and policy coordination only.
employment contract).
Composition
Parties to a Dispute o 1 Chairman; and
1. Primary Parties o 23 Members.
a, Employer EIGHT (8) members each, shall be chosen
b. Employees ONLY from among the nominees of the
c. Union workers and employers organizations,
2. Secondary Parties respectively. The Chairman and the
a. Voluntary arbitrator SEVEN (7) remaining members shall
b. Agencies of DOLE (BLR, VAC) come from the public sector, with the latter
c. NLRC to be chosen PREFERABLY from among
d. Secretary ofLabor the INCUMBENT LABOR ARBITERS,
e. Office of the President
Upon assumption into office, the members
Managerial Employee - one who is vested nominated by the workers and employers
with powers or prerogatives to lay down and organization shall divest themselves of
execute management policies andlor to hire, any affiliation with, or interest in the
transfer, suspend, lay off, recall, discharge, federation or association to which they
assign or discipline employees. belong.

Supervisory Employees - those who, in the Note: The composition of the NLRC is
interest of the employer,
effectively trisectoral. Tripartism is representation of the
recommend such managerial actions if the three sectors publio or govemment,
exercise of such authority is
not merely employers and the workers - in policy-making
routinary or clerical in nature but requires bodies of the government. Tripartism is
independent judgment. observed in numerous government agencies

All employees not falling within any of the


above definitions are RANK-AND-FILE
EMPLOYEES.

Voluntary Arbitrator (ANCA)


1. Any person Accredited by the Board as
such; or
2. Any person lamed or designated in the
CBA by the parties to act as their
Voluntary Arbitratof or
3. One Ghosen with or without the assistance S
of the National Conciliation and Mediation of
Board pursuant to a selection procedure
agreed upon in the CBA, or
4. Any official that may be Authorized by the F
Secretary of Labor to act as Voluntary admi
Arbitrator upon the written request and On tem basis, to
agreement of the parties to a labor
dispute.

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other division whose docket allows the 3. Must have experience or exposure in
additional workload and such transfer will handling labor management relations for
not expose litigants to unnecessary at least 5 years.
additional expense.
Term of Office of the Chairman,
Division (Eight Divisions Each W,th 3 Commissioners, and Labot Arbiters
Members) (Art. nq
1. Adjudicatory; They shall hold otfice durin! good behavior
2. All other powers, functions and duties; and until they reach the AGE OF 65 unless
3" Exclusive appellate jurisdiction over cases removed for causes as provided by law or
within their respective territorial become incapacitated to discharge the
jurisdiction. function of his office.

Adjudication of Cases (Triple C) PROVIDED HOWEVER, that the President of


'1. The NLRC adjudicates cases by division. the Republic of the Philippines may extend the
services of the commissioners and labor
A concurrence of 2 votes is needed for a arbiters up to the maximum age of 70 years
valid judgment. upon the recommendation of the commission
en banc.
(Whenever the required membership in a
division is not complete and the Jurisdiction
concurrence of the commissioners to Exclusivehnd Original
arrive at a judgment or resolution cannot 1 Ceftifled cases - cases certifled to it for
be obtained, the Chairman shall designate compulsory arbitration by the Secretary of
such number of additional commissioners Labor under Aft. 263 or the President
from the other divisions as may be under Art. 264:
necessary.) 2. lnjunction cases under Afts. 218 and 264;
and
2. lt shall be mandatory for the division to 3. Contempt cases.
meet for purposes of gonsultation.
Exclusive Appeltate
The conclusion of a division on any case 1. Cases decided by Labor Arbiters under
submitted to it for decision should be Art. 214b1 of the Labor Code and Sec. 10
, reached in consultation before the case is R.A. 8042 (MigrantWorkers Acf); and
assigned to a member for the writing of the 2. Cases decided by the Regional Offices of
opinion. DOLE in the exercise of its adjudicatory
function under Arf. 129 of the Labor Code
3. A Qertification to this effect signed by the over monetary claims of workers
presiding commissioner of the division amounting to not more than P 5,000.
shall be issued (copy attached to the
record of the case and served upon the Judicial Review
parties). Findings of facts tribunal are
accorded the and
Qualifications of the Ghairman and the
Commissioners (Art. 21 5l *1#il?.'{A
1. Must be a member of the Philippine Ba[
2. Must have been engaged in the practice of
law in the Philippines for at least 15 years;
3. Must have experience or exposure in initially
handling labor management relations for
at least 5 years; and courts
4. Preferably a resident of the region where desired
he is to hold office. equ
factual
Qualifications of Executive Labor number
Arbiters/Labor Arbiters {Art. 21 q Funeral
1. Must be members of the Philippine Ba[
2. Must have been engaged in the practice of
law in the Philippines for at least 10 years; Barangay
and Labor cases a Barangay
Conciliation since nary of procedure

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LABORLAW
LABOR RELATIONS

are merely suppletory in character vis-d-vis and maternity beneflts, all other claims
labor disputes which are primarily governed by arising from. Er-Ee relations, including
labor laws (Montoya v. Escayo, GR Nos. those of persons in domestic or household
82211, March 21, 1989). service, involving an amount exceeding
P5,000 regardless of whether
ART. 214: HEADQUARTERS, BRANCHES accompanied with a claim for
AND PROVINCIAL EXTENSION UNITS reinstatement;
7. Monetary claims of gverseas contract
The Commission and its first, second, third, workers arising from Er-Ee relations under
fourth, flfth and sixth divisions shall have their Migrant Workers Act of 1995;
main offices in METROPOLITAN MANILA, 8. Wage distortion disputes in unorganized
and the seventh and eighth divisions in the establishments not voluntarily settled by
cities of CEBU and CAGAYAN DE ORO, the parties pursuant lo RA 6727;
respectively. 9. Enforcement of gompromise agreements
ART. 216: SALARIES, BENEFITS AND when there is non-compliance by any of
OTHER EMOLUMENTS the parties pursuant lo Art. 227 of the
r The Chairman ahd members of the Labor Code, as amended, and
Commission shall have the same ran( 10. Qther cases as may be provided by law.
receive an annual salary equivalent to,
and be entitled to the same allowances, Note: Although the provision speaks of
retirement and benefits as, those of the EXCLUSIVE AND ORIGINAL JURISDICTION
Presiding Justice and Associate Justices of Labor Arbiters, the cases enumerated may
of the Court of Appeals, respectively. instead be submitted to a voluntary arbitrator
. Labor Arbiters shall have the same rank, by agreement of the parties under Art. 262.
receive an annual salary equivalent to and
be entitled to the same allowances, The law prefers voluntary over compulsory
retirement and other benefits and arbitration.
privileges as those of the judges of the
regional trial courts. Ihe cases that a Labor Arbiter can hear and
decide are employment related. Where no Er-
CHAPTER II. POWERS AND DUTIES Ee relationship exists between the parties and
ART.217: JURISDICTION OF I-ABOR no issue is involved which may be resolved by
ARBITERS AND THE COMMISSION reference to the Labor Code, other labor
statutes, or any collective bargaining
Exclusive and Original Jurisdiction of agreement, it is the Regional Trial Court that
Labor Arbiters has j urisdiction (Lapand ay Agricult ural Dev't.
EXCEPT as otherwise provided under this Corp. v. CA, GR No. 112139, January 31,
Code, the Labor Arbiters shall have original 2000J.
and exclusive jurisdiction to hear and decide,
WITHIN 30 CALENDAR DAYS after the The Labor Arbiter has jurisdiction over
submission of the case by the parties for controversies involving employers and
decision without extension, even in the employees only if !h_pl'p_ is a "reasonable
absence of stenographic notes, the following causal claim
cases involving all workers, whether
ag ri cu ltu ral or n on-ag ri cu ltu ral : (UTR-DV-EeO -
cDo)
1. ULP cases; CA,
2. Termination disputes;
3. lf accompanied with a claim for The
Reinstatement, those that workers file
involving wages, rates of pay, hours of
work and other terms and conditions of
employment; Jose
4. Claims for actual, moral, exemplary and 1e98).
other forms of Qamages arising from Er-
Ee relations; Cases
5. Cases arising from any Violation of Art. machi
264, including questions involving the The be
legality of strikes and lockouts; disposed referring
6. Except claims for Employment the same to and
Compensation, Social Security, Philhealth voluntary

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1. Disputes on the interpretation or and Design lnc. vs CA, 260 SCRA 623,
implementation of CBA, and [1ee6u.
2. Disputes on the interpretation or 12. Termination of membership in a
enforcement of company personnel Cooperative organized under RA No. 6938
policies. othenrvise known as fhe Cooperative Code
of the Philippines.
No Jurisdiction over the Following:
1. Foreign governments (JUSMAG- 2AO5 NLRC Rules of Procdure on Venue of
Philippines v. NLRC, GR No. 108813, Filing Gases
December 15, 1994); except when the 1. All cases which Labor Arbiters have
function of the foreign entity partakes of authority to decide may be filed in the
the nature of a proprietary activity, it Regional Arbitration Branch (RAB) having
impliedly divested itself of its sovereign jurisdic{ion over the workplace of the
immunity from suits. compla ina nUpetiti oner.
2. lnternational agencies (Lasco v.
UNRFNRE, GR No. 109095-1091A7, Note: WORKPLACE is understood to be
February 23, 1995)', the place or locality where the employee is
3. lntra-corporate disputes which fall under regularly assigned when the cause of
P.D. 902-A and now fall under the action arose. lt shall include the place
jurisdiction of the regular courts pursuant where the employee is supposed to report
to the new Securities Regulation Code back after a temporary detail, asgignment,
(Nacpil v. lBC, GR 144767, March 21, or travel.
2044;
4. Executing . money claims against ln case of field employees, as well as
government (DAR v. NLRC, GR No. ambulant or itinerant workers, their
104269, November 11, 1993); workplace is:
5. Cases involving GOCCs with original a. Where they are regularly assigned;
charters which are governed by civil b. Where they are supposed to regularly
service law, rules-or regulations (Aft. lX-9, receive their salaries and wages;
Sec,2, No. 1, 1987 Consf-); c. Where they receive their work
6. Local water district (Tanjay Water Distrid instructions from, and
v. Gabaton, GR Nos. 63742 and 84300, d. Report the results of their assignment
April 17, 1989) except where NLRC to their employers.
jurisdiction is invoked (Zamboanga City
Water District v. Buat, GR No. 104389, Where 2 or more RABs have jurisdiction
May 27, 1994); over the workplace, the first to acquire
7. The aggregate money claim does not jurisdi ction shall exclude others,
exceed 5,000 pesos and without claim for lmproper venue when not objected to
reinstatemenl (Rajah Humabon Hotel, lnc. before filing of position papers shall be
v. Trajano, GR No. 1A0455 September 17, deemed waived.
lees), Venue may be changed by written
8. Claim of employee for cash prize under agreement of th"9,,,,p-ffipg-- or when the
the lnnovation Program of the company,
although arising from employer-employee
relationship, is one requiring application of
general civil law on contracts which is
within the jurisdiction of the regular courts
(San Miguel Corp. v. NLRC, GR No. l-
80774, May 31, 1988);
9. Cause of action is based on quasi-delict or
tort which has no reasonable connection
with any of the claims enumerated in Art The
217 oI the Code (Ocheda v. CA, GR Na. permts
85517, October 16, 1992), the
10. Complaint arising from violation of a different
training agreement (Singapore Airlines v. 124193,
Pano, GR No. L-47739, June 22, 1983),
11. When the Labor Arbiter is an inconvenient Servide of
Forum under the Doctrine of Forum Non ln the ora
Canveniens (Communication Materials valid waiver and

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LABOR LAW
LABOR RELATIONS
judgment rendered by the labor arbiter are null Labor Arbiters cannot issue a TRO or an
and void. lnjunction.

Compulsory Arbitration Procedure for the lssuance of Restraining


The process of settlement of labor disputes by Order/ I njunction: (DVH-RFB)
a government agency which has the authority 1. There must first be a labor g[ispute.
to investigate and make award binding on all 2. Filing of a yerified petition.
the parties. Labor arbiter has the authority to 3. Hearing after due and personal notice has
conduct compulsory arbitration (PAL v. NIRC, been served, in such manner as the
GR No. 55159, December 22, 1989). Commission shall direct, to:
a. All known persons against whom the
Note: The NLRC may conduct compulsory relief is sought; and
arbitration ONLY in national interest cases b. Also to the chief executive or other
referred to it by the DOLE Secretary. public officials of the province or city
within which the unlawful acts have
ART. 218: POWERS OF THE COMMISSION been threatened or committed
charged with the duty to protect the
Powers of the NLRC (RCl-COl) com plainant's property.
1. lule-making porver (promulgation of rules 4. fieception at the hearing of the
and regulations: a. governing disposition testimonies of witnesses with opportunity
of cases before any of its for cross-examination, in support of the
divisions/regional offices; b. pertaining to allegations of the complaint made under
its internal functions; c. as may be oath as well as testimony in opposition
necessary to carry out the purposes of this thereto.
Code ) 5. Finding of lact of the Commission to the
2. Power to issue Qompulsory processes effect that :
(administer oaths, summon parties, issue a. Prohibited or unlawful acts have been
subpoenas); threatened and will be committed, or
3. Power to lnvestigate matters and hear have been committed and will be
disputes withi n its ju risd ctio n ( adj ud icatory
i continued unless restrained, but no
power original and appellate injunction or temporary restraining
jurisdiction); order shall be issued on account of
4 Contempt power; any threat, prohibited or unlanrful act,
5 Qcular inspection (Art. 219);and except against the Persons,
' association or organization making the
6 Power to issue lnjunctions and restraining
orders. threat or committing the prohibited or
unlaMul act or actually authorizing or
Injunction or TRO ratifying the sGme after actual
Orders which may require, forbid, or stop the knowledge thereof;
doing of an act. The power of the NLRC to b. Substantiat and irreparable iniury to
enjoin or restrain the commission of any or all the complainants property will follow;
prohibited or unlawful acts under Afticle 218 of
the Labor Code can only be exercised in a
labor dispute.

Note: A restraining order is not an injunction at


all but a writ to compel parties to maintain the
matters in controversy in status quo until the
question of whether or not a temporary or
preliminary injunction ought to be issued may
be determined. (BF Homes v. Reyes, March
16, 1971)

Who May lssue


1. President (Art. 263[g]);
2. Secretary of Labor (Aft. 263[9]); and
3. NLRC (Arf. 218);

Note: There is no law which empowers Labor


to issue a TRO or lnjunction. Hence,
Arbiters

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2011 CENTRALIZED BAR OPERATIONS

matter in controversy and which is It may be lifted or it may be upgraded to a


appropriate to the particular permanent injunction.
circumstances of the case. lf the
remedy is specifically provided by law, The TRO takes effec't upon its issuance, if a
it is presumed to be adequate \PAL v. bond is posted and not upon receipt of the
NLRC, GR No. 120567, March 20, parties. (A.M. No RTJ-9&1405, Apil 12,
1998) 2000)

e. That public officers charged with the The procedural and substantial requirements
duty to protect complainant's property ot Art. 218[e] must be strictly complied with
are unable or unwilling to furnish before an injunction may issue in a labor
adequate protection. dispute.
6. Posting of a Qond.
ART. 219: OCULAR INSPECTION
lnjunction from NLRC is NOT the Proper The Chairman, any Commissioner, Labor
Remedy against Employee Dismissal Arbiter or their duly authorized representatives
The power of the NLRC to issue an injunctive may, at anytime during working hours:
writ originates from "any labor dispufe" upon 1. Conduct an ocular inspection on any
application by a party thereof, which establishment, building, ship, place or
application if not granted may cause grave or premises, including any work, material,
irreparable damage to any party or render implement, machinery, appliance or any
ineffectual any decision in favor of such party. object therein; and
2. Ask any employee, laborer, or any person
It is an essential requirement that there must as the case may be for any information or
first be a labor dispute between the contending date concerning any matter or question
parties before the labor arbiter. ln the present relative to the object of the investigation.
case, there is no labor dispute between the
petitioner and private respondent as there has ART. 221: TECHNICAL RULES NoT
yet been no complaint for illegal dismissal filed BINDING AND PRIOR RESORT TO
with the labor arbiter. (PAL vs. NLRC G.R. AMICABLE SETTLEMENT
No. 120567, March 20, 1998).
Technical Rules NOT Binding
Requisites Before TRO May Be lssued Ex Administrative and quasi-judicial bodies like
Parte (STU) the NLRC are not bound by technical rules of
1. The complainant shall allege that, unless a procedure in the adjudication of cases {Ford
TRO is issued without notice, a substantial Phils. Salaried Employees Assoc. v. NLRC,
and irreparable injury to complainant's GR No. 75347, December 11, 198n.
property will be unavoidable;
2. There is lestimony under oath, sufficient, if Rules of evidence are not strictly observed in
sustained, to justify the Commission in the proceedings before the NLRC (Bantolino'
issuing a temporary injunction upon et al. v. Coca-Cola Bottlers Phils., Inc., GR No.
hearing after notice (Affidavit of Merit); and 153660, June 10,
3. The complainant shall first file an
undertaking with adequate security/bond A
in an amount to be fixed by the
Commission suff icient to recompense
those enjoined for any loss, expenses or
damage caused by the improvident or
erroneous issuance of such order or (Llora
injunction, including all reasonable costs,
together with a reasonable attorney's fee,
and expense of defense against the
granting of any injunctive relief sought in
the same proceeding and subsequently
denied by the Commission.

Note: The TRO shall be effective for NO NLRC


LONGER THAN 20 DAYS upon the posting of 1. Motion Kcept on
a bond, and shall become void after the the over the
expiration of the 20 day period. subject venue, res
judicata, on and shopping;

7t
LABOR LAW
LABORRELATIONS

2. Motion for Bill of Particulars; Attorney's Fees


3. Motion for New Trial; 1. Art. 111 (Simple Monetary Claim)
4. Petition for Relief from Judgment when The maximum amount to be given a
filed with the labor arbiter; lawyerfor his legal assistance.
5. Petition for Certiorari, Prohibition and rendered is 10% of the total monetary
Mandamus; award adjudged the emPloYees
6. Motion to declare respondent in default; exctuding the award for moral and
and exemplary damages. To demand more
7. Motion for reconsideration or appeal from than this is unlaMul.
any interlocutory order of the labor arbiter. b. The attorney's fees may be awarded
Amicable Settlement ONLY when the withholding of wages
The Labor Arbiter shall exert all efforts to is declared unlavvful.
arrive at an amicable settlement of a labor The basis of the 10olo attorney's fees is
dispute within its jurisdiction on or before its the amount of the wages recovered.
Rrst hearing or during the mandatory d. Should there be any other monetary
conferences set for the purpose (The rules for awards given in the proceedings, the
Man datory Con ci li ati on/Medi ati on Conference same may not be assessed or
are provided for under Rule V of the 2005 subjected to the 10% attorney's fees.
NLRC Rules).
2. Att.222
Approval of a Compromise Agreement by a Attorney's fees for CBA negotiations
Labor Arbiter and conclusion shall be in the amount
The compromise agreement shall be approved agreed upon by the parties to be taken
by the Labor Arbiter, if: from the union funds and not from
1. After explaining to the parties, particularly individual union members.
to the complainants, the terms and This Article prohibits the payment of
conditions and consequences thereof; attorney's fees only where the same is
2. He is satisfied that they understand the effected through forced contributions
agreement; from the workers from their own funds
3. That the same was entered into freely and as distinguished from union funds.
voluntarily by them; Neither the larryer nor the union itself
4. And that it is not contrary to law, morals, may require the individual workers to
and public poliiy (lbid). assume the obligation to PaY the
attorney's fees from their own pockets.
ART.222: APPEARANCES AND FEES Any agreement to the contrary shall be
null and void.
Appearance of Non{awyers before the
Commission Article 111 vs. Article

General Rule: ONLY lawyers can appear


before the NLRC or a Labor Arbiter. Prohibits the award ol Prohibits the payment of
attorney's fees which attomey's fees only
exceeds loo/o
Exceptions: Non-Lawyers can appear ONLY
in the following instances:
1. He represents himself as party to the
case;
2. He represents a legitimate labor {:;{"3t*.I*fu
organization which is a party to the case
provided that he shall be made to present
a verified certification from said
organization that he is properly authorized;
3. He represents a member or members of a
legitimate labor organization existing in
employels establishment;
4. He is duly accredited member of any legal
aid office duly recognized by the DOJ or
IBP;
5. He is the owner or president of a
corporation or establishment which is a
party to the case. (Sec. 8, 2005 NLRC
Rules)

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CHAPTER III. APPEAL TO THE NLRC arguments propounded and reliefs sought
within the required period of appeal and
ART.223: APPEAL with a statement of the date appellant
received the appealed decision, order or
Grounds for Appeal (FLEP) resolution;
1. lf the decision, order or award was 2. ln lhree legibly typewritten or printed
secured through Fraud or coercion, copies;
including graft and corruption; 3. Proof of payment of the required appeal
2. lf made purely on questions of Law; fee;
3. lf serious lrrors in the findings of facts are 4. ln case of monetary award, an appeal by
raised which would cause grave or the employer may be perfected only by the
irreparable damage or injury to the posting of a lond (cash deposit or surety
appellant; and bond) equivalent in amount to the
4. lf there is lrima facie evidence of abuse of monetary award exclusive of damages
discretion on the part of the Labor Arbiter. and attorney's fees;
5, Proof of service upon the other parties;
Periods within which to Appeal and
1. Decr'sions of the Regional Director - within 6. Qertificate' of non-forum shopping and
5 calendar days from receipt of the order verification.
(Att.129, LC - Recovery of wages and
simple money claims of an amount not Note: Where the employer failed to post a
exceeding P 5,000) bond to perfect its appeal, the remedy of the
2. Declsions of the Labor Arbiter - within 10 employee is a motion fo dismiss the appeal'
calendar d4ys from the receipt of the NOT a petition for mandamus.
decision.
The bond is sine qua non to the perfection of
Note: Ihe Code sfafes calendar, not working appeal from the labor arbiter's monetary
days. Hence, in counting the 10-day period, decision (Catubay, et al. v, NLRC, GR No.
Saturday, Sunday, and Legal Holidays are 119289, Aprit 12, 2000)', property bond
INCLUDED. (Vir-Jen Shipping and Marine acceptable (UERM-Memarial Medical Center
Servlces v. NLRC GR L-58011-12, July 20, v. NLRC, GRNo. 110419, March 3, 1997).
i982).
No motion to'reduce bond shall be entertained
lf the 10s or 5s day, as the case may be, falls except on meritorious grounds and only upon
on a Saturday, Sunday or holiday, the last day the posting of a bond in a reasonable amount
to perfect the appeal shall be the first working in relation to the monetary award. The mere
day following such Saturday, Sunday or filing of motion to reduce bond without
a
holiday. complying with these requisites will not stop
the running of the period to appeal'
No Motion for Reconsideration is available in
questioning the Labor Arbiter's decision (2005
NLRC Ru/es).

Period to Appeal NOT Extendible


The perfection of an appeal within the
statutory/reglementary periodis not only
MANDATORY but also JURISDICTIONAL and
farlure to. do so renders the questioned
decision final and executory as to deprive the
appellate court of jurisdiction to alter the final
judgment of the Regional Directors and Labor
Arbiters (ACDA v. NLRC, GR No. 51607;
Volkschelv. NLRC, GR No. L-396ffi, June 28,
1980; Aboitiz Shipping Employees Association
v. Trajano, GR No. 112955. September 1,
1997).
insofar IS

Requisites for the Perfection of an Appeal concerned a bond


to the NLRC (VTP-BPC)
1. Filing of a yerified memorandum of appeal
containing the grounds, issues raised and

73
LABOR LAW
LABOR RELATIONS

There is no need for a motion for the issuance Dev't. Bank v. Associafion of Luzon Devt.
of writ of execution on the reinstatement order Bank, GR No. 120319, October 6, 1995).
it
as is self-executory (Pioneer Texturizing
Corp. v. NLRC, GR no. 11ffi51, October 16, 1. The way to review NLRC decisions is by
1997). specia/ civil action of ceftiorari, prohibition
or mandamus under Rule 65 of the Rules of
Reinstatement Pending Appeal under Ar1. Court.
223 vs. Order of Reinstatement under Arf
279. Note: A petition for certiorari shall NOT
STAY (or suspend) the execution of the
order of I On the other hand, the assailed decision of the NLRC UNLESS a
by the I order of reinstatement
reinstatement TRO is issued by CA or SC (Sec. 10, Rule
Labor Arbiter b I under Art. 279 Xl, NLRC Rules, 2ffi5).
immediately executory | presupposes the a,vard
even pending appeal. lt J thereof is pursuant to a 2. Jurisdiction belongs to SC and CA, but in
is similar to a return-to- final and executory
line with lhe doctrine on hierarchy of eourts,
work order l.e. to restore I judgment, and not while
the status quo in the I the case for illegal lhe petition should be initially presented to
workplace for the I dismissal 's pending on fhe CA (Sf. Martin's Funeral Home v.
meantime. j appeal. NLRC, GR No. 130866, SePtember 16,
1988).
3. No motion for reconsideration is allawed for
Options of the Employer in Gomplying with any order, decision or award of a labor
an Order of Reinstatement which is arbiter. However, a Motion for
lmmediate and Self-Executory Reconsideration of a Labor Arbiter's
1. He can ADMIT the dismissed employee decision, award or order which has all the
back to work under the same terms and elements of an appeal may be treated as
conditions prevailing prior to his dismissal appeal
or 'separation or to a substantially 4. Only one Motion for Reconsideration of the
equivalent position if the former position is decision, award or order of the commission
already fllled up; OR in cases appealed before it is allowed.
2. He can REINSTATE the employee merely
in the PAYROLL with payment of the Procedure on Cases Originally Filed with
accrued salaries. the Labor Arbiter

Note: The exercise of one oi tn" foregoing


options may be compelled under pain of
contempt and the employer may be made to
pay the salary of the empoyee instead. Appeal to the NLRC Division
(lf appeal denied, MR; aPPeal
Payroll Reinstatement from NLRC to the Sec. of Labor
One where an employee is paid his monthly abolished under P.D. 1391)
salary without making him perform actubl
work. lt applies in termination cases where the
labor court declares the dismissal illegal and
orders reinstatement of the employee, but the Court of Appeals
employer does not want to actually or (Certiorari under Rule 65)
physically reinstate him and instead, at the
employer's option, merely reinstates the
employee in the payroll pending appeal.
Supreme Court
(Petition for Review upder Rule 45)
Judicial Review Rules
No law allovs an appeal from a decision of the
Secretary of Labor, or the NLRC, or of a
voluntary arbitrator.

Note: Decisions of Voluntary Arbitrators are


appealable to the CA under RULE $ AF THE
RULES OF COURT in relation to Sec. 9 of BP 1.
Blg. 129. Voluntary Arbitrators are to be
considered as quasi-judicial agencies whose
decisions are appealable to the CA {Luzon

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5. Med-Arbite[ and judgment creditor of an affidavit of title


6. Voluntary Arbitrator or Panel of Arbitrator. (Sec. t6,
Rute 39,'Rules of Court). This is
also known as Terceria;
When Writ of Execution May Be lssued 3. lndependent civil action to recover the title
The foregoing persons or entities may, upon and possession of the property wrongfully
their own initiative or on motion of any levied on execution (Sec. 16, Rule 39,
interested party, issue a writ of execution on a Rules of Court) (See Yapangco Cotton
judgment within 5 years from the date it MtTls vs. CA, et.d., G.R. No. 126322,
becomes final and executory. January 16, 2002)

After the lapse of the said five year period, the RTC lnjunction against NLRC
judgment shall become dormant and may only Generally, not available.
be enforced by an independent action within
the next five (5) years. (Phil. National railways HOWEVER, the general rule that no court has
vs. NLRC, G.R. No. 81231, September 19, the power to interfere by injunction with
1e]e) judgments of another court with
concurrenVcoordinate jurisdiction applies
It is settled that once a decisionor order ONLY when no third-party complaint is
becomes final and executory, it is removed involved (tbid ). Therefore, if the property
from the power or jurisdiction of the court under levy does not belong to the judgment
which rendered it to further alter or amend it. debtor in the NLRC case, it could not be
(Schering Employees Labor union vs NLRC, validly levied upon by the sheriff' for the
G.R. No. 118586, Sept 25,1998) except: satisfaction of the judgment therein. lf the third
1. When there are clerical errors or mistakes. party claimant does not involve nor grows out
2. When the amendment or correction is of a labor dispute, a separate action for
meant to harmonize it with justice and the injunctive relief against such levy may be
facts. maintained in court. (Co Tuan et. al. v. NLRC
3. When the same becomes necessary to and CL|JP, GR No. 117232, April22, 1998).
accomplish the aims of justice.
4. When there are supervening events TITLE THREE. BUREAU OF LABOR
justifying the amendment of correction. RELATIONS
(Yu vs NLRC, G.R. Nos. 11181011, June
16, 1995) ART.226: BUREAU OF LABOR RELATIONS
ABSORPTION BY NCMB
Manner of Execution May Be Appealed
Finality of judgment becomes a fact upon the Pursuant to E.O. 126,the National Conciliation
lapse of the reglementary period of appeal and and Mediation Board (NCMB) has absorbed
if no appeal is perfected. ln such a situation, the conciliation, mediation and voluntary
the prevailing party is entitled as a matter of arbitration functions of the BLR.
right to a writ of execution.
The BLR functions, as it now stands, are
There is a big difference if, what is sought to
be reviewed is not the decision itself but the
manner of its execution. While it is true that
the decision has become final and executory
and so can no longer be challenged, there is
no question either that it must be enforced in
accordance with its terms and conditions. The
NLRC has authority to look into the
correctness of the execution of the decision
and to consider supervening events that may
atfect such execution (Abbot v. NLRC, 6R No.
L-65173, October 27, 1986).

Remedies of a third party whose property


has been wrongfully levied to enforce a
decision (Cumulative)
1. Motion for Exclusion/ Release of the
property wrongifully levied on execution; To act on its
2. Service by the third party claimant on the of either or both
officer making the levy and upon the

75
LABOR LAW
LABOR RELATIONS

2. INTER-union conflicts; and legitimate labor organizations based on any


3. OTHER RELATED Labor Relations violations of their rights as labor organizations.
Disputes.
Coverage of lnbr/lntra-Union Disputes
Other Related Labor Relations Disputes {Sec. 7, RuleXl, D.O. /rc431
(Sec. 2, RuleXl D.O.4e$l 1.- Cancellation of registration of a labor
Shall indude any conflict between a labor organization filed by its members or by
organ2ation and the employer or any any other labor organization;
individual, entity, or group that is NOT a 2- Conduct of election of union and worker's
labor organization or worker's association. lif icatton of election
associatio n off icers/nu I

This includes: of union and worke/s association officers;


a. Cancellation of registration of unions 3 AudiUaccounts examination of union or
and worke/s associations; and workeis assoqiation funds;
b. A petition for interPleader. 4. De-registration of CBA
5. Validity/invalidity of union affiliation or
Notrg: E O. 251 OF 19BZ removed from the disaffiliation;
jurisdiction of the BLR "'all' labor-management 6. Validity/invalidity of acceptancelnon-
disputes. The effect ol E.O. 251 is to transfer acceptance for union membershiP;
to the NCMB the mediation, conciliation, and 7. Validity/invalidity of impeachmenV
arbitration functions of the BLR. expulsion of union and worker's
association officers;
The parties may, by agreement, settle their 8. Validity/invalidity of voluntary recognition,
differences by submitting their case to a 9. Opposition to application for union and
voluntary arbitrator ratherthan taking the case CBA registration;
to the BLR. of or disagreements over any
10. Violations
provision in a union or vYorker's
E.O. 292 or the 1987 Administrative Code association constitution and byJaws;
provides for the cunent functions and authority 11. Disagreements over
chartering or
of the BLR: registration of labor organizations and
CBAs;
Sec.16. Bureau of Labor Relations - The BLR 12. Violations of the rights and conditions of
shall: union or workeds association membership;
1. Set policies, standards, and procedures on 13. Violations of the rights of legitimate labor
the registration and supervision of organizations, except interpretation of
legitimate labor union activities' including CBAs; and
denial, cancellation, and revocation of 14. Such other disputes or conflicts involving
labor union permits; the rights to
self-organization, union
2. Set policies, standards, and procedures membership, and collegtive bargaining -
relating to collective bargaining a. Between and among legitimate labor
agreements, and the examination of organizations; and
financial records of accounts of labor b. Between and among members of a
organizations to determine compliance union or worke/s association.
with relevant laws,
3. Provide proper orientation to workers on
their schemes and projects for
improvement of the standards of living of
workers and their families.

lntra-Union Disputes - refer to any conflict


between and among union members, including
grievances arising from any violation of the
rights and conditions of membership, violation
of or disagreement over any provision of the
union's constitution and by-lavrrs, or disputes
arising from chartering or affiliation

- refer to any conflict


lnter-Union Disputes
between and among legitimate labor
organizations involving representation B. lnvol
questions for purposes of collective bargaining ln such
or to any other conflict or dispute between

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be sought within the union itself in Bureau of Labor Relations - if
accordance with its constitution and by- the case originated from the
laws EXCEPT under any of the following Med-Arbiter/R egional Director
circumstances: Sec. Of Labor - if the case
1. Futility of intra-union remedies; originated fom the Bureau
2. lmproper expulsion procedure,
3. Undue delay in appeal as to constitute Regional Office or to the BLR,
su bstanti al njustice;
i where the complaint originated
4. The action is for damages; (records are transmitted to the
5. Lack of jurisdiction of the investigating BLR or Sec. withln 24 hours
body; from receipt of the
6. Action of the administrative agency is memorandum of appeal)
patently illegal, arbitrary, and
oppressive; Flowchart of Appeal from Decisions of
7. lssue is purely a question of law; Med"Arbiters
8. Where the administrative agency had
already prejudged the case; and
L Where the administrative agency was Med-Arbiter/Regional
practically given the opportunity to act Director
on the case but it did not.

Effects of Filing or Pendency of lnter /


lntra-Union Dispute and other Labor
Relations Disgutes (Sec. 3, Rule X, Do 40- Appeal to BLR or to the Sec.
03) of Labor if originated from
1. The rights, relationships and obligations of the Bureau
the party-litigants against each other and (Within 1.0 days from
other parties-in-interest prior to the receipt of the decision)
institntion of the petition shall continue to
remain during the pendency of the petition
and until the date of finality of the decision
rendered therein. Thereafter, the rights,
relationships and obligations of the party-
litigants against each other and other
parties-in-interest shall be governed by the Appeal to the Secretary of Labor
decision so ordered.
2. The filing or pendency of any inter/intra-
union disputes is not a prejudicial question
to any petition for certification election and
shall not be a ground for the dismissal of a
petition for certification election or
suspension of proceedings for certification
election.

Modes of Appeal in lntra/lnter-Union 1[i,l+"?-*: !1lfitP,U


1. Under oath
2. Consist oi a memorandum
of appeal
3. Based on either of the
following grounds;
a. Grave abuse of
discretion
b. Gross violation of the
rules
4. With supporting arguments
and evidence

\Afrthin 10 days from receipt of


decbion

77
LABOR LAW
LABOR RELATIONS

Summary of Rules on lntraflnter-Union ART. 227: COMPROMISE AGREEMENTS


Disputes
Compromise Agreement - contract whereby
or grounds under Sec. 1: any legitimate the parties, by making reciprocal concssions,
organization (LLO) member(s) thereof avoid litigation or put an end to one already
specially concemed commenced.
2. For grounds under Sec. 2: any-party-in-
interest Substantial Requ irements
1. Must be freely entered into;
Regional Office that issued its certificate of 2. Must not be contrary to law morals or
regbtration or certificate of creation of public policY;
chartered local - if it involves labor unions with 3. Must be reasonable; and
independent registration, chartered locals, 4. Must be approved by the authority before
worke/s association, its officers or members. whom the case is pending (see dlscusslon
Directly with the Bureau - if it involves a on Article 221 approvalof Labor Arbiter
Federation/ National Unions/ lndustry Unions, -
of an amicable sdtlement in a case before
its officers, or members.
him)
ln writing;
Formal Requirements
Verified under oath
Contains the following averments:
1. ln wrrting; and
a. Name, address and other personal 2. Signed in the presence of the regional
of the complainant(s)
circumstances or director or his dulY authorized
petitioner(s); representative. (Sec. 8, Rule ll of the
b. Name, address and other personal Rules on Disposition of Labor Sfandards
circumstances of the respondent(s) or Cases in the Regional Offices)
person(s) charged;
c. Nature of the complaint or petition; When May Gompromise Agreements Be
d. Facts and circumstances surounding the Effected
complaint or petition;
e. Causes of action or specific violations It may be effected at any stage of the
committed; proceedings and even when there is already a
f. A statement that the administrative final executory judgment (Art. 2040, NCC).
remedies provided for in the constifution
and by-laws have been exhausted; or It cannot be entered into when the final
such remedies are not readily available to judgment is already in the process of
the complainants or petitioners through execution (Jesalva, et al. v. Bautista, GR No.
no fauJt of his/their own; or compliance L-1192*-L-19330, March 24, 1959\.
with such adminstrative remedies does
not apply to complainants or petitioners.
Reliefs prayed for, Gompromise Agreements With v. Without
Certificate of non-forum shopping; and Assistance of DOLE
Other relevant matters.

Administrative Functions of the BLR


1. Regulation of registration of the labor
unions;
2. Keeping of a registry of labor unions;
3. Maintenance of a file of CBAs; and
4. Maintenance of a file of all settlements or
final decisions of the supreme court, court
of appeals, NLRC and other agencies on
labor disputes.

Cases Where the BLR Has No Jurisdiction


Those arising from the implementation or
interpretation of Collective Bargaining
Agreements which shall be subject of
grievance procedure and/or voluntary
arbitration.

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Options When Compromise Agreement ls 3. The regional office shall furnish the BLR
Violated with a copy of the CBA within five (5) days
1. Enforce compromise by writ of execution; from its submission
or 4. The BLR or regional office shall assess
2. Regard it as rescinded and insist upon the employer for every CBA, a registration
originaldemand. . fee of not less than P1,000.00 or any
amount deemed appropriate by the
Requirements of a Valid Quitclaim (VAC) Secretary of Labor.
1. The quitclaim must be voluntarily arrived 5. lssuance of Certificate of Registration.
at by the parties;
2. lt must be with the gssistance of the Note: Registration of the CBA is not a
Bureau of Labor Standards, Bureau of requisite for its validity.
Labor Relations or any representative of
the DOLE; and The certification of the CBA by the BLR is not
3. The gonsideration must be reasonable required to put a stamp of validity to such
(required only when entered wlthout the contract. Once it is duly entered into and
assistance of DOLE). signed by the parties, a
CBA becomes
effective as between the parties regardless of
Note: Dire necessity is not an acceptable whether or not the same has been certified by
ground for annulling the releases, especially in the BLR (Libefty Flour Mitts Emptoyees v. LFM
the absence of proof that the employees were lnc., GR Nos. 58768-70, December 29,
forced to execute them (Veloso v. DOLE, GR 1989).
No. 87297, August 5 1991)
ART. 232: PROHIBITION ON
Waiver of Reinsiatement CERTIFICATION ELECTION
Like waivers of mongy claims, a waiver of
reinstatement must bb regarded as a Contract-Bar Rule - While a valid and
PERSONAL RIGHT which must be exercised registered CBA is subsisting for a FIXED
personally by the workers themselves (Jag PERIOD OF 5 YEARS, the Bureau is not
and Haggar Jeans and Spottswear Corp. v. allowed to hold an election contesting the
NIRC, GRNo. 105710, February23, 1995). majority status of the incumbent union
EXCEPT during the sixty (60) day-period
ART. 231: REGISTRY OF UNIONS AND F|LE immediately prior to its expiration, which
OF COLLECTIVE AGREEMENT period is called the FREEDOM PERIOD.

The CBA is more than a contract; it is highly Note: ln the absence of such timely notice or
impressed with public interest for it is an filing of petition, the contract executed during
essential instrument to promote industrial the automatic renewal period is a bar to
peace (TUP v. Laguesma, GR No. 95013, certification e lection.
September 21, 1 994).
There shall be no amendment, alteration, or
An Unregistered CBA does not bar termination of any of
certification election (Contract-Bar Rule will not
apply in the absence of registration). (See
notes under Arts. 253, 253-A and 256).

Procedure for Reg istration


1. Submission of copies of the CBA to the
Bureau of Labor Relations or the regional YEAR
offices of DOLE within 30 days from te
execution, accompanied by the following: signed
. a. Verified proof of posting in two
conspicuous places in the place of
work; and six (6)
b. Verified proof of ratification by the
majority of all the workers in the
bargaining unit.
2. Action upon the application for registration Requisites
within five (5) calendar days from receipt parties
thereof have duly

79
LABORLAW
LABOR RELATIONS

2. was ratified by the union membership;


It r As now amended by R.A. 9481, Att. 234
3. It is adequate for itcontains substantial makes specific reference to the following
terms and conditions of employment; organizations (not merely to any
4. It encompasses the employees in the organization) which may register as labor
appropriate bargai ni ng unit, organization, to wit:
5. It was not prematurely extended, the CBA 1.
' 2. Federation
was not hastily entered inlo (doctrine of NationalUnion
premature extension does not bar a 3. lndustry Union
certifi cation el ecti on ); 4. Trade Unlon Center
o. It is for a definite period; 5. lndependent Union
7. No schism or mass disaffiliation affects the
contracting union during the lifetime of the
agreement;
8. The contracting union is not defunct;
9. The contracting union is not company-
dominated (see discussians in Arts. 25G^
259 Petition for Certification Election).

ART. 233: PRIVILEGED COMMUNICATION

Privileged Communication - any statement Any labor organization in the


of such privacy that the law exempts the private sector organized for
person receiving the information from the duty collective bargaining and for
to disclose it.

Not Available As Evidence


lnformation and statements made at
conciliation proceedings shall be treated as
privileged comrnunication and shall not be
used as evidence in the Commission.

Conciliators and similar officials may not testify


in any couft or body regarding any matters
taken up at conciliation proceedings
conducted by them.

TITLE FOUR. LABOR ORGANIZATIONS

CHAPTER I. REGISTRATION AND


CANC,ELLATION

ART.234: REQUIREMENTS OF
REGISTRATION

Principle of Agency Applied


1. Principal - employees
2. Agent - locaUchapter
3. Agent of agenf - federation
Purpose of Formation of Labor Unions: for
securing fair and just wages and good working
conditions for the laborers; and for the
protection of labor against the unjust exactions
of capital.

Modes of Acquiring Legitimacy for Labor


Organizations (RC)
1. $egistration with the BLR (lndependent
Union).
2. Qhartering or issuance of a federation or
national union of a charter certificate.

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Glassification of Labor Organizations applicable only to registration of independent
1. National Union/Federation - any labor union.
organization with at least 10
locals/chapters each of which must be a The Labor Code and its implementing rules do
duly certified or recognized collective not require that the number of members
bargaining agent. appearing on the documents in question
2. lndustry Union - group of legitimate labor should completely dovetail. For as long as the
organizations within an identified industry, documents and signatures are shown to be
organized for collective bargaining or for genuine and regular and the constitution and
dealing with employers concerning terms by-laws democratically ratified, the union is
and conditions of employment within an deemed to have complied with registration
industry or for participating in the requirements. (The Heitage Hotel Manila
formulation of social and employment vs. Pinag-isang galing and lakas ng mga
policies, standards, and programs in such manggagawa sa Heritage Manila (Piglas-
industry registered with DOLE. Heritage), G.R. No. 177024, October 30,
3. Trade Union Center - group of registered 200e.)
national unions or federations organized
for the mutual aid and protection of its ART. 234-4: CHARTERING AND CREATION
members and for assisting such members OF A LOCAL CHAPTER {new provision
in collective bargaining or for participating inserted by R.A.94811
in the formulation of social and
employment policies, standards, and A duly registered federation or natiohal union
programs duly registered with the may directly create a local chapter BY
Department.. ISSUING A CHARTER CERTIFICATE
4. Alliance - aggregation of unions existing indicating the establishment of the local
in one line of industry or in a chapter. The chapter shall acquire legal
conglomerate, a group of franchisees, a personality ONLY for purposes of filing a
geogra.phical area, or an industrial center. petition for certification election from the date it
5. -
Company union. a labor organization was issued a charter certificate.
which, in whole or in part, is employer-
controlled or employer-domi nated. Note: The chapter shall be entitled to all other
rights and privileges of a legitimate labor
Requirements for the lssuance of the organization only upon fhe submission of the
Certificate of Registration of a National following documents in addition to its chafter
Federation, National Union or lndustry or certificate.
Trade Union Center or an lndependent 1. Names of the chapter's officers, their
Union (As Amended By RA- 9481, June 15, addresses, and the principal office of the
200n chapter;
1. P 50 registration fee; 2. Chapter's constitution and by-laws;
2. Names of its officers, their addresses, the 3. PROVIDED, that where the chapte/s
principal address of the labor organization, constitution and byJaws are the same as
the minutes of the organizational meetings that of the federati
and the list of the workers who participated this fact
in such meetings;
3. ln case the applicant is an independent
union, the names of all its members
comprising at least 2}o/o of all the
employees in the bargaining unit where it
seeks to operate (see Art. 255 for
definition of bargaining unit);
4. lf the applicant union has been in
existence for one or more years, copies of
its annual financial reports; and
5. 4 copies of the constitution and by-laws of
the applicant union, minutes of its adoption.
or ratifioation, and the list of the members
who participated in it.
tions
Note: Creation of a LOCAL CHAPTER does
not need subscription of at least 20o/o of the
members. Minimum number of members

81
LABOR LAW
LABOR RELATIONS

offices, but shall be processed by the the sole and exclusive collective bargaining
Bureau. agent of the employer they represent.

Note: A labor organization may be organized Requirements Before a Federation Gan Be


under the Corporation Law as a non-stock lssued a Certificate of Registration
corporation and issued a certificate of Aside from the application, which must be
incorporation by the SEC. But such accompanied with the requirements for
incorporation has only the effect of giving to it registration of a labor registration, the
juridical personality before regular courts of application should also be accompanied by the
justice. Suctr incorporation does not grant the following:
right and privileges of a legitimate labor 1. PROOF of affiliation of at least 10 locals or
organization. chapters, each of which must be a duly
recognized sole and exclusive collective
Ministerial Duty of the BLR Gompellable by bargaining agent in the establishment or
Mandamus industry in which it operates, supporting
To review the application for registration and the registration of such applicant
not the issuance of a Certificate of federation or national union;
Registration. 2. RESOLUTTON of affiliation of at least ten
(10) legitimate labor organization, whether
After a labor organization had filed the independent unions or chartered locals
necessary papers and documents for each of which must be duly certified or a
registration, it becomes mandatory for the BLR recognized bargaining agent in the
to check if the requirements under Afticle 234 establishment where it seeks to operate;
have been sedulously complied with. ll its and
application for registration is vitiated by 3. NAMES AND ADDRESSES Of thc
falsification and serious irregularities, companies where the affiliates operate
especially those appearing on the face of the and the list of all the members in each
epplication and the supporting documents, a company involved.
labor organization - should be denied
recognition as a legitimate labor organization Unions at Enterprise Level
(Progressive Development Corporation-Pizza A labor union at enterprise level may be
Hut v. Laguesma, et. al, GR No. 115077, April created either by:
18, 1997). 1. lndependent registration
2. Chartering
Purpose of Registration
Registration with the 6LR is the operative act
that gives rights to a labor organization.
1. lt is the fact of being registered with the
DOLE that makes a labor organization
it is clothed
legitimate in the sense that
with legal personality to claim
representational and bargaining rights
enumerated in Afticle 242 or to strike or
' picket under Nticle 263.
2. The requirement of registration is nof a
curtailment of the ight fo associafion. lt is
merely a condition sine qua non for the
acquisition of legal personality by labor
organizations, associations or unions and
the possession of the rights and privileges
granted by law to labor organizations.
3. tt is a valid exercise of police power since
the activities in which labor organizations,
associations, or unions of workers are
engaged affect public interest, whlch
should be protected (PAFLU v. Sec. of
Labor, GR L-2228, February 27, 1969).

Federation - any labor organization with at


least 10 localJchapters or affiliates each of
which must be duly certified or recognized as

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2011 CENTRALIZED BAR OPERATIONS
immediately preceding the expiration of the
Application for Charter certificate
CBA.
registration is issued by federation
filed with and will or national union is
be acted upon bY filed with the Exception: DISAFFILIATION BY MAJORIry'
the DOLE Regional Office or Even before the onset of the freedom period'
Regional Off'ae BLR within 30 daYs disaffiliation may still be carried out, but such
where the after the issuance of disaffiliation must be effected by a majority of
applicant's the charter the union members in the bargaining unit.
principal's office certificate.
is located.
This happens when there is a substantial shift
in allegiance on the part of the majority of the
Affiliate members of the union. ln such a case,
1. An independently rbgistered union that however, the CBA continues to bind the
entered into an agreement of affiliation members of the new or disatfiliated and
with a federation or national union. independent union up to the CBA's expiration
2. Also refers to a chartered local which Oate. A consent election to determine the
applied for and was granted an union which shall administer the CBA maybe
independent registration but did not conducted.
disafflliate from its mother federation or
national union. Limitation
Disaffiliation should be in accordance with the
Affiliation of Local Union with a Federation rules and procedures stated in the constitt'fiion
The procedure of affiliation would depend on and by-laws of the federation.
whether the union is independently registered
or not. A prohibition to disaffiliate in the Federation's
constitution or by-laws is valid - intended for
Requirements of Affiliation (As Amended its own protection.
By D.o. n-B)
1. Report of affiliat-ion of independentlY Ghartered Local - created by a federation or
registered labor union; national union through issuance of a charter'
2. Attachments:
a. Resolution of the labor union's board Revocation gf Charter by the Federation -
of direc'tors approving the affiliation; by serving the local/chapter a vetified notice of
.b. Of the general membership meeting r&ocatioi, copy furnished the Bureau on the
approving the affiliatiori, ground of disloyalty or such other grounds as
c. The total number of members iray Oe specified in its constitution or by-laws'
comPrising the labor union and the
names of members who aPProved the The revocation shall divest the local chapter of
atfiliation; its legal personality upon receipt of the notice
d. The certificate of afflliation issued by by th-e Bure"u, unless in the meantime ,the
the federation in favor of the local chapter has acquired indeperdent
independently registered labor union; registration (Sec. 5- of the IRR of
and
e. Written notice to the emPloYer
concerned if the affiliating union is the
incumbent bargaining agent. f
. divest
Note: Supervisor's union and the rank and file
union operating within the same establishment locals
may join the same federation or national reg
union. (Art. 245 amended by R.A. 9481)
ln the
Disaffiliation allowed
When affiliated, a local union may disaffiliate failing
from the federation. status
(
When to Disaffiliate 6)
General Rule: A labor union may disaffiliate
from the mother union to forrn an independent Art.235:
union only during the 60-day freedom period The Bureau for
registration within from filing.

83
LABOR LAW
LABOR RELATIONS

All requisite documents and papers shall be Registration of lndependent Labor Union
under oath by the secretary or the treasurer of Filed With
the organization, as the case maybe, and
attested to by its president. Bureau of Labor
Relations or Regional
Reason for 30day period: The thirty-day Office
period in Aft 235 ensures that any action taken (But processed by
by the BLR is made in consonance with the Bureau)
mandate of the Labor Code, which specifically
requires that the basis for the issuance of a
certificate of registration should be compliance
with the requirements for recognition under
Att. 234. (Progressive Development Secretary of Labor
Corporatien-Pizza Hut vs Laguesma, G.R. No. (lf BLR director
115077, Apfl 18, 1997.) denies)

Reason for requiring certification under


oath: To ensure that the labor organization
with which an employer is dealing is a bona- Decision of Secretary
fide organization. appealable to COURT
of APPEALS
Mandamus, not Certiorari, is Proper
remedy. The proper remedy against refusal to
register a labor organization which complies Registration of Federation or National
with all the requirements is mandamus and not Union Filed With
certiorari. Certiorari is not the proper remedy
since the approval of application for Regional office where
registration is not a judicial function. union operates
(Processed by Labor
ART.236: DENIAL OF REGISTRATION Relations Division)

Decision
Decision of the Regional Office or the Bureau
denying the application for registration shall
be:
-R t-
Bureau of Labor Retations
(lf denied by Regional
1. ln writing; Director)
2. Stating in clear terms the reason for the
decision; and
3. Applicant union must be furnished a copy -_---
Decision of BLR
of said decision
appealable to COURT of
Appeal APPEALS
Decisions of the Regional Otfice shall be
appealable to the BLR and CA. The BLR's
decisions on cases appealed from Regional
Director are final and not appealable to the
Secretary of Labor.

Decisions of the BLR denying the registration


of a labor organization (federation or national
union) is appealable to the Secretary of Labor
the within 10 calendar days from receipt of the
decision, on grounds of:
1. Grave abuse of discretion; or
2. Gross incompetence.

Decision of Secretary of Labor appealable to


Court of Appeals.

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of Rules

By application of the union


federation for the issuance of a charter
certificate to be submitted to the Bureau
accompanied by the following:
1. Copies of its constitution and by-laws.
2. Statement of the set of offcers and
books of accounts, all of which must
be certified by the
Secretary/Treasurer and atested to
by the President. ln such case, the
union becomes a local chapter of the
Federation.
Would not afhct its beinq a pon severance, it would cease to be a
labor organization and therefore it would legitimate labor organization and would
continue to have legal personalrty and to no longer have legal personality and the
possess all the rights and privileges of a rights and privileges granted by law to
legiti mate labor organization legitimate organization, unless the local
chapter is covered by a duly registered
collective bargaining agreement. ln the
latter case, fte local or chapter will not
lose its legal personality until the
expiration of the CBA After the CBA
expires it will lose its legal personality
unless it registers as an independent
union.

valid as the labor organization can local chapter will not lose its personality
continue administering the CBA until the expiration of the CBA. After the
CBA expires the local union loses its
unless it reoisters anew

dues and not the federation from which the collected as there would no longer be
labor organization dbaffiliated. any labor union that is allowed to collect
such union dues from the employees.

Note: Follow the principle of agency


between federation and local.
Principal - employees
Agent - locallchapter

Modes of Appeal ART. 238: CANCELLATION OF


Denial or Cancellation by. REGISTRATION
1. Transmit records within 24 hours from mate
receipt of Memo of Appeal
2. BUREAU decides within 20 days from m
receipt of records hea
3. COURT OF APPEALS- Rule 65 SPE
R.A.
Bureau
1. Transmit records within 24 hours from ART.
receipt of Memo of appeal CAN
2. SEC. OF DOLE decides within 20 days
from receipt of records 1. AI
3. COURT OF APPEALS - Rule 65 regis
proc nor
Note: Appeal by memo of appeal within 10 shall for
days from receipt of notice.
2. ln case herein
Grounds shall restri to seek
1. Grave abuse of discretion just and ies in the
2. Violation of rules as amended appropriate

8s
LABORLAW
LABOR RELATIONS

ART.239: GROUNDS FOR CANCELLATION


Any party-in- OF UNION REGISTRATION (as amended by
Director who interest, if R.A.94811
has jurMiction ground is:
over the place 1. Failure to Grounds:
s
association
where
respondent
comply
with any of
1. Misrepresentation, false statement or
principally the
fraud in connection with the adoption or
operates (30 requireme ratification of the constitution and by-lars
days to nts under 2. Or amendments thereto, the minutes of
decide). Arts. 2U, ratification, and the list of members who
237 and took part in the ratification;
238, LC. 3. Misrepresentation, false statements or
2. Violation fraud in connection with the election of
of any officers, minutes of the election of officers,
provision
and the list of voters; and
under Arf.
239, LC. 4. Voluntary dissolution'by the members.

Director (30 | members of Note: Failure to submit reportorial


days to decide) j the labor requirements is no longer a ground for
Trade union organization cancel!ation but shall subject the erring officers
centers concerned if or members to suspension, expulsion from
grounds are membership, or any appropriate penalty. (Art
actions 242-A, new provision inserted by R-A. 9481)
involving
violations of ART. 239-A: VOLUNTARY CANCELLAT]ON
Aft,241,
OF REGISTRATION (New Provision
subject to the
30% rule. inserted by R.A.94811

Effect of Cancellatioh of Registration in the


The registration of a legitimate labor
Course of Proceedings
organization may be cancelled by the
organization itself PROVI DED:
Where a labor union is a party in a proceeding
and later it loses its registration permit in the
1. At least V3 of its general membership
course or during the pendency of the case,
vofes, in ameeting duly called for that
purpose to dissolve the organization;
such union may continue as a party without
need substitution of parties, subject
of 2. An application to cancel registration is
submitted by the board of the organization,
however to the understanding that whatever
attested to by the president thereof.
decision may be rendered therein will be
binding only upon those members of the union
Note: A pronouncem"nt to the illegality of
who have not signified their desire to withdraw
from the case before its'trial and decision on
the strike is not within the""meaning ol Art. 239
the merits
of the Code, which provides for the grounds
for cancellation of union registration.
(Principle of Agency applied-the employees
are the principals, and the labor organization is
merely an agent of the former, consequently,
the cancellation of the union's registration
would not deprive the consenting member-
employees of their right to continue fhe case
asthey are consideredas fhe pincipals).

86
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2011 CENTRALIZED BAR OPERATIONS

b. The collective bargaining agreement, Note: ln general, a union is free to select its
and labor laws. own members, and no person has an absolute
3. Rights Over gqoney Matters - the rights of right to membership in a union.
the members:
a. Against imposition of excessive fees; Who are entitled to vote:
b. Right against unauthorized collection Only members of the union have the eligitrility
of contributions or unauthorized to take part in the election of union officers.
disbursements; Eligibility to vote,may be determined through
c. To require adequate records of the use of the applicable payroll period and the
income and expenses; status of the employees during the applicable
d. To access financial records; This pertains to the payroll of the
perio.d.
e. To vote on officers' compensation, month next preceding the labor dispute, in
f. To vote op special assessment, case of regular employees, and the payroll
g. To be deducted a special assessment period at or near the peak of operation, in case
only with the membeis written of employees in seasonal industries. (Tancino
authorization. vs Pura Ferrer-Calleja, G.R. No. 78131, Jan.
4. Political right - the right to vote and be 20, 1988).
voted for, subject to lawful provisions on
qualifications and disqualifications. Limitations (See nofes on union security
arrange,nents under Art. 2/r8)
Note: Any violation of the above rights and 1. The labor organization cannot compel
of membership shall be a ground
conditions employees to become members of their
for cancellation of union registration or labor organization if they are already
expulsion of an officer from office, whichever is member of a RIVAL UNION.
appropriate. At least 30% of all ihe members 2. The persons mentioned in Art. 241[e]
of the union or any member or members (SUBVFRS/yES) of the Labor Code are
specifically c-oncerned may report such prohibited from becoming a member of a
violation to the Bureau. labor organization.
3. The members of RELIGIOUS
Union Membership ORGANIZATION whose religion forbids
Any employee, whether employed for a membership in labor organization could
definite period or not, shall, beginning on his not be compelled into union membership.
first day of service, be considered an
employee for purposes of unlon membership. Levy of Special Assessments or
(Afi.277) Extraordinary Fees (Art. 241 [Nil

Note: The relationship of the union and Requirements: (RAMM)


members is governed by their mutual 1. There must be a written Resolution;
agreement, the terms and conditions of which 2. The resolution must have been Approved
are set forth in the union constitution and by by a majority of allthe members; and
laws and binding on the members as well ag 3. The approval must be at a general
the organization itself. (Poquiz, 2006, quoting Membership meeting duly called for that
Ang Malayang Manggagawa ng Ang Tibay
Enterprises, et al. v. Ang Tibay, et al., GR No.
L-8259, December 23, 1957).
il be att#b&d'"tq rhvjlfh'trr
Who Are Prohibited From Becoming
Members/Officers of a Labor Organization
(See nofes under Art. 243 on persons who are
not granted the right to self-organization)
1. Non-employees (Art. 241[c]);
2. Subversives or those engaged in
subversive activities (Art. 241 [eI ; and
3. Persons who have been convicted of a
crime involving moral turpitude shall not be requ
eligible for election as union officer or for (
appointment to any position in the union
(Att. 241tfil.
Gheck from an

87
LABORLAW
LABOR RELATIONS

amounts due to the union for fees, fines or


assessments.

Nature and PurPose of Check-Off


Union dues are the lifeblood of the union' All
unions are authorized to collect reasonable
membership fees, union dues, assessments
and fines and other contributions for labor
education and research, 'mutual death and
hospitalization benefits, welfare fund, strike
fund and credit and cooperative undertakings
(Ar1.277 [a])

Requirements With Regard to Check-Offs Fees)


(Art.241[ol) Not necessary:
General Rule: NO special assessment, 1. for
attorney's fees, registration fees or any other mandatory
extraordinary fees may be checked off from activities
any amount due an employee without an provided
individuat written authorization duly signed by under the
Code; and
the employee.
2. when
non-
The authorization should specifically state the: members of
1. Amount; and the union
2. Purpose and the beneficiary ofthe avail of the
deduction. benefits of
No exception; the CBA.
Exceptions: written
Said non-
1. For mandatory aetivities provided under resolution is members
may. be
the Code; and mandatory at assessed
2. When non-members of the union avail of all instances.
agency fees
the benefits of the CBA: equivalent
a. Said non-members may be assessed to that paid
union dues equivalent to that paid by by members
members; only by a
b. Only by a board resolution approved Board
by majority of the members in a Resolution
general meeting called for the approved by
a majority of
purpose.
the
members in
Note: The individual written authorization duly a general
signed by the employee is an additional meeting
requirement (to RAM) in order that a special
assessment may be validly checked-off. ln
case of check-off another requisite is
necessary in addition to the requirements for
special assessment, enumerated above and
this is, individual written authorization for
check-off duly signed by the employee
concerned. (Eduardo J. Mariho, Jr. d al. vs.
Gil Y. Gamilla, et al., G.R. No. 149763, July 7,
zoae.)

Jurisdiction over Check-Off Disputes


Beirg an intra-union conflict, the Regional
Director of DOLE has jurisdiction over check Requ
off d-sp:tes. 1

2. He is ; and
3. He the CBA.

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Note: lndividual written authorization is not ART. 242-4: REPORTORIAL


necessary for the collection of agency fees. REQUI REMENTS (New Provisi on in *rted
by R.A.94811

Reportorial requlrements to be submitted by


the legitimate labor organization:
1. Constitution and by-laws, or amendments
Members of a union for Non-members of the thereto, minutes of ratification, and the list
the payment of union bargaining agent (union) of members who took part in the
dues for the enjoyment of the ratification of the constitution and by-laws
benefits under the CBA within 30 days from adoption or ratification
of the constitution and by-laws 'or
amendments the'reto;
May not be deducted May be deducted from
2. List of officers, minutes of the election of
from the salaries of the the salary of employees
officers, and list of voters within 30 days
union members without without their written from election;
the written consent of consent 3. Annual financial report within 30 days after
the workers affected the close of every flscal year; and
4. List of members at least once a year or
Note: Agency fee cannot be imposed on whenever required by the Bureau.
employees already in the service and are
members of another union. lf a closed shop Note: Failure to compy with thi: above-
agreement cannot be applied to them, neither mentioned requirements shall nof be a ground
may an agencyTee, as a lesser form of union for canettation of union registration but shall
security, be imposed to them. Payment by subject the erring officers or members to
non-union members of agency fees does not suspension, expulsion from membership, or
amount to an unjust enrichment basically any appropriate penalty. (As insefted by Sec.
because the purpose of such dues is to avoid 7, R.A.9481)
discrimination between union and non-union
members (NABAILU y. San Miguel Brewery TITLE FIVE. COVERAGE
lnc., GR No. 18170, August 31, 1963).
ART. 243: COVERAGE AND EMPLOYEES'
Employee-Members of another Union NOT RIGHT TO SELF-ORGANIZATION
Gonsidered Free Riders
When the union bids to be the bargaining Extent of the Right to Self-Organization
agent, it voluntarily assumes the responsibility 1. To form, join and assist labor
of organizations for the purpose of collective
representing all employees in the
bargaining through representatives of their
appropriate bargaining unit.
own choosing; and
CHAPTER III. RIGHT.s OF LEGITIMATE
2. To engage in lawful concerted activities for
LABOR ORGANIZATIONS the same purpose or for their mutual aid
and protection. (Art. 246)
ART. 242 RIGHTS OF LEGITIMATE LABOR
ORGANIZATIONS

Rights of A Legitimate l.abor Organization


(USERFOE)
1. lndertake activities for benefit of
members;
2. $ue and be sued;
3. lxclusive representative of all employees;
4. Represent union members;
5. furnished by employers of audited
financial statements;
6. Qwn properties; and
7. Exempted from taxes.

89
LABOR LAW
LABOR RELATIONS

Pqsn{Employees Eligible to Join a Labor nationals of a country which do not grant


Organization for Purposes of Collective Filipinos to exercise the right of self-
Bargaining organization and to join or assist labor
1. All persons employed in gommercial, organizations. (Article 269, Labor Code:
lndustrial and ggricultural (ClA) Department Order No. I [1997], Rule 11,
enterprises, including employees of Sec.2.l
Government-owned or controlled
corporation without original charters Eligibility of Foreigners to Form Labor
established under the Corporation Code Organization
and Aliens working in the country with valid permits
2. ln geligious, gharitable, ggedical or issued by DOLE, may exercise the right to
gducational (RCME) institutions whether self-organization and join or assist labor
operating for profit or not. organizations of their own choosing for
purposes of collective bargaining; provided,
Persons/Employees eligible to ioin a labor that said aliens are nationals of a country
organization for mutual aid and protection: which grants the same or similar rights to
(ArRSrW) Filipino workers. (Art. 269) This embodies the
1. Ambulant; (Walking or Mobile Workers) PRINCIPLE OF RECIPROCIry.
2. lntermittent (lrregular workers)
3. $ural; Religious Objectors
4. $elf-employed people The rights of the members of the lglesia ni
5. ltinerant workers (Working for a short time Krlsfo sect not to join a labor union for being
in various p/aces.); and contrary to their religious beliefs does not bar
6. Workers without any definite employers. mernbers of that sect from forming their own
union. The recognition of the tenets of that
Person{Employees wha are NOT granted the sect should not infringe on the basic right to
ri g ht to self-o rg an i zafion; (H EMAC ENGA) self organization granted by the Constitution to
1. High-level or managerial government workers regardless of
religious affiliation.
employees (Sec, 3; E.O- 180)', (Kapatiran v. Calleja, GR No. 82914, June 20,
2. Employees of international organizations 1988)
with immunities {ICMC v. Calleja, GR No.
85750, September 28, 1990)', ln fact, they can vote for "No-Union" in a
3. Managerial employees certification election in the exercise of their
a. Whose functions are
normally right to self-organization. (Reyes v. Trajano,
considered as
policy-making or GR No. U433, June 2, 1992)
managerial:
b. Whose duties are of a
highly ART.244: RIGHTS OF EMPLOYEES IN THE
confidential or highly technical in PUBLIC SERVICE
nature (Aft.212, LC);
4. Members of the grmed Forces of the
Philippines, including police officers,
policemen, firemen and jail guards (Sec. 4,
E.O. 180);
5. Qonfidential employees (Metrolab
lndusties Inc. v. Confesor, GR No.
108855, February 28, 1996|;
6. Employees of cooperatives who are at the
same time its members (Benguet Elec.
Coop. v, Ferrer-Calleja, GR No. 79A25,
December 29, 1989), However, they may
form a workeds association (NEECO
Employees' Assoc. v. NLRC, GR No.
116066, January 24, 2000),
7. lon-Employees (Rosarlo Bros. v. Ople,
GR No. L-53590, July 31, 1984)
8. Qovernment Employees, including
Government-owned and controlled
corporations wlfh original charter (Arizala governed
v. CA. 189 S?RA 5U) Code can
9. {liens without valid working permits; or with the
Aliens with valid working permits but are

90
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2011 CENTRALIZED BAR OPERATIONS

they can negotiate the terms and of government authority (Sec. 6, E'O'
(through collective conditions of 180\.
negotiation agreements employment. Thus, theY
or MOA) with the have unlimited Terms and Conditions of Employment in
govemment on those bargaining rights. Government Services
terms and conditions of General Rule: The terms and conditions of
employment which are
employment or improvements in government
not fixed by law. Thus,
they have limited services may be the subject of negotiations
hraroainino riohts- between duly recognized employees'
organizations and appropriate government
Can only form, join or Can form, join, or assist authorities(Sec. 73, E.O. 1ffi)
assist labor labor organization for
organization for purposes ofCBA etc. Exieption: Those terrns and conditions of
purposes not contrary employment that are fixed by law (/bld.).
to law
Negotiable Terms and Conditions of
Forming, Joining, or Assisting Employee's Employment in GOGCS with Original
Organization Charter
General Rule: ALL government employees 1. Schedule of vacation and other leaves;
can form, join or assist emPloYees' 2. Work assignment of pregnant women;
organizations of their own choosing for the 3. Personnel growth and devetopment,
furtherance and protection of their lnferesfs. 4. Communication system - latefat and
They can also form labor-management vertical;
committees, work councils and other forms of 5. Provision for protection and safety;
workers' participation schemes to achieve the 6. Provision for facilities for handicapped
same objectives (Sec. 1, E.O. 180). personnel;
7. Frovision for first-aid medical services for
I

Exceptions: married women;


1. High-level employees whose functions are 8. Annual medicaUphysical examination; and
normally considered as policy-making or 9. Recreational, social, athletic and cultural
managerial or whose duties are of a highly activities and
facilities (Rules
confidential nature (Sec. 3, E.O. 180); and lmptementing E.O. 180)
2. Members of the Armed Forces of the
Philippines, including police officers, The Following are considered NOl
policemen, firemen and jailguards (Sec- 4, Negotiable
E.O. 180) 1. Those which require appropriation of
funds, such as:
Note: Employees of government corporations a. lncrease in salary emoluments and
incorporated under the Corporation Code and Other allowance not PresentlY
registered with SEC are governed by the provided for bY law;
Labor Code not by E O. 180. They are allowed b. Facilities requi ring capital outlays;
to organize for: c. Car plan;
1. They are not involved in public service; d.
and e.
2. Terms of employment are not flxed by law'
R i ceis u&#&h eT"{s$ hFtdi e.s;
Protection of the Right to Organize
1. Government employees shall not be
discriminated against by reason of their
membership in employees' organizations
or participation in the normal activities of
theirorganization (Sec. 5, E.O. 180)'
2. Their employrnent shall not be subject to
the condition that they shall not join or
shall relinquish their membership in the
employees' organizations U bid-).
3 Government authorities shall not interfere
in the establishment, functioning or
administration of government employees'
organizations through acts designed to
place such organizations under the control linkages.

91.
LABOR LAW
LABOR RELATIONS

To sum up, government employees covered Jurisdiction


by E O. Na. 180 may organize, even unionize, Any dispute which remains unresolved after
and negotiate employment conditions not fixed exhausting all available remedies under
by law but they cannot strike. (Azucena, 2A07) existing laws and procedures may be jointly
referred by the parties to the Public Sector
Registration of Employees' Organization Labor-Management Council for appropriate
action.
Whqe to Rqister
Government employees' organizations shall Likewise, the PSLMC has jurisdiction to hear
register with the Civil Service Commission and charges of ULP filed bY government
DOLE. employees against their employer. lt is
composed of the following:
The application shall be filed wiih the Bureau 1. Chairman - Civil Service Commissioner;
of Labor Relations (BLR), which shall process 2. Vice-Chairman - Secretary of Labor; and
the same in accordance with the provisions of 3. Members.
LC. a,Secretary of Finance
b.Secretary of Justice
Applications may also be filed with the c.Secretary of Budget (Sec. 15' E.O'
Regional Offices of DOLE, which shall 1 80)
immediately transmit the said applications to
the Bureau of Labor Relations within three (3) ART. 245: lNELlGlBlLlTY oF MANAGERIAL
days from receipt thereof (Sec. 7, E.A. 180). EMPLOYEES TO JOIN ANY
I.ABOR
ORGANIZATION; RIGHT OF SUPERVISORY
lssuance of Rqi strati on Certifi cate EMPLOYEES
Upon approval of the application, a registration
certificate shall be issued to the organization 1. Managerial Employees - those who are
recognizing it a
as tegitimate employees' vested with powers or prerogatives to lay
organization with the right to represent its down and execute management policies
members and undertake activities to further and/or to hire, transfer, suspend, lay-off,
and defend its interest. recall, discharge, assign or discipline
employees.
The certificates of registration shall be jointly
approved by the Chairman of the Civil Service
Commission and Secretary of Labor (Sec. I
E.O. 180).

Voluntary Recognition
A duly registered employees' organization
shall be accorded voluntary recognition:
1. upon a showing that no other employees'
organization is registered or is seeking
registration, based on records of the
Bureau of Labor Relations; and
2. the said organization has the majority
support of the rank-and-file employees in
the organizationalunit (Sec. 11, E.O.180).

Certification Election
Vy'here there aretwo or more duly registered
employees' organizations in the appropriate
organizational unit, the BLR, upon petition,
shall:
1. Order the conduct of a certification
election; and
2. . Certify the winner as the exclusive
representative of the rank-and-file
employees in said organization unit (Sec.
12, E.O.1W).
M alter ego of

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2011 CENTRALIZED BAR OPERATIONS 0030cc3
' to be on the side of the employer to act as same company cannot affiliate with the
its representatives, and to see to it that its same federation if the following concur
interests are well protected. The employer a. The rank-and-file employees are
is not assured of such protection if these directly under the authoritY of
employees are union members. supervisory employees; and
b. The national federation is ac{ively
ln the same manner, the labor union might involved in union ac{ivities in the
not be assured of their loyalty to the union company.
in view of the evident conflict of interest.
The union can also become company- 3. Confidential Employees - A confidential
dominated with the presence of employee is one entrusted with confidence
managerial employees in union on delicate matters, or with the custody,
membership (Bulletin Publishing Co. lnc. handling, or care and protection of the
v. Hon. Sanchez, GR No. 74425, October employer's property.
7, 1986).
By the very nature of their functions, they
Note: . Art 245 does not absolutely (1) assist and act in a confidential
disqualify managerial employees from capacity, (2) to persons who formulate,
exercising their right of association. What determine, and effectuate management
it prohibits is merely the right to join labor policies in the field of labor relations.
organizations.
The TWO CRITERIA ARE CUMIJLATIVE,
2. Supervisory Employees - those who, in and both must be met if an employee is to
the interest of the employer, effectively be considered a confidential employee -
recommendiuch manageriil actions if the e.9., the confidential relationship must
exeroise of such authority is not merely exist between the emPloYee and his
routinary or clerical in nature but requires SUPERVISOR, and the supervisor must
the use of independent judgment. handle the prescribed responsibitities
relating to labor relations. As such, the
Supervisory Employees May Form, rationale behind the ineligibility of
Assist, Join A Labor Organization ma4agerial employees to form, assist or
On their own and NOT with the rank-and- join a labor union equally applies to them.
file employees (R.A. 6715 as amended by (PIDI v. NLRC, GR No. 88957, June 25,
R.4. e481)) 1992) Under the doctrine of necessary
implication, confidential employees are
lf their responsibilities do not inherently similarly disqualified. (NATU-Republic
require the exercise of discretion and Planters Bank v, Torres, GR No. 93468,
independent judgment, (or merely December 29, 1994).
routinarylclerical in nature) then they may
join the union composed of the rank-and- Note: The phrase 'lN THE FIELD OF
file employees. LABOR RELATIONS" is imPortant. lt
stresses labor nexus, i.e. confidentiality of
Note: lt is the nature of the employee's to labor
functions and not the nomenclature or title
given to his job which determines whether
he has a rank and file or managerial status regard6@ &hffi3&ployer
(Engineering Equipment, lnc. v. NLRC,
GR No. L-59221, December 26, 19U).

The rank and file union and the


supervisors' union operating within the
same establishment may join the same v.
federation or national union (As Amended No.
by R.4.9481j.
IS
Separation of Unions Doctrine not
However, in the case of Atlas Lithographic r having
Seryices lnc. vs. Laguesma, (G.R No. of the
96566, January 6, 1992) a supervisor's not every
union and a rank-and-file union in the managerial,

93
LABOR LAW
LABOR RELATIONS
othetwise deal .with each other in an
he maY be a suPervisory or even a of freedom and mutual
rank-and-file emPloYee. atmosphere
respect;
DisruPt industial Peace', and
ART. 245-A: EFFECT oF lNcLUSloN AS 5.
b Hinder the promotion of healthy and stable
MEMBERS OF EMPLOYEES OUTSIDE THE
labor-management relations and mutual
BARGAINING UNIT (new provision inserGd
by R.A.9181)
respect (unitaote labor-management
relations).
The inclusion as union members of employees
Elements of Unfair Labor Practice
outside the bargaining unit shall NOT be a
ground for the cancellation of the registration 1. Employer-employee relationship between
the'offender and the offended, and
if the union. Said employees are automatically 2. Act done ls expressly defined in the code
deemed removed from the list of membership
as an act of unfair labor Practice'
of said union.

Reason: After a certiflcate of registration is Note: Prohibited acts are all related to the
;;;k;*' self-organizational right
issued to a union, its legal personality cannot "nq.1!:
be subject to a collateral attack lt may be oU""i""n." ot i CSn, except Arf' 248ltl'
dismissing or prejudicing an employee ror
questioned only via a petition for cancellation,
giving tesiimonY under the Code'
under the grounds provided for in Art' 239'
: 1-"t elemeni of ULP does not apply to
yellowdog condition
ART. 246: NON.ABRIDGEMENT OF THE
RIGHT TO SELF.ORGANIZATION o ULP has a technical meaning'
r .' lt is a practice unfair to labor, althoughorthea
It Shall Be Unlawful For Any Person to: ofenObr may either be an employer
(RCDI) labor organization.
1. $estrain; . lt referJto acts opposed to workers' right
2. Qoerce; io organize (Anti-unionism acfs) Without
3. piscriminate against; or this, ihe act, no matter how unfair' is not
4. Unduly lnterfere with employees and ULP.
workers in their exercise of the right to a It commonly connotes ant i-u nioni sm'
self-organization. a It also refers to gross violation of CBA
[toui"ion". Gross means the act
is
Note: AnY act intended to weaken or malicious and flagrant.
defeat the right is regarded by law as an ULP are not, in view of the public
offense, wnlcn is technically called """""
interest involved, subject to compromse'
"UNFAIR LABOR PRACTICE'. iiee CtLc E.G. Gochuangco Worker's
'iiion r". NLRC, G.R No. 67158, 30 MaY
TITLE SIX. UNFAIR LABOR PRACTICES teAO; nfp Mutual Benefit Association' lnc'
,i- nrp-MaAt-EU, 97 scRA 715, 7s2
CHAPTER I. CONCEPT

ART.24?: UNFAIR LABOR PRACTICES

Unfair Labor Practice owtl acprnpr


1. Any unfair labor practice as expressly ing ari4#lldbt
defined bY the Code.
2. Any act intended or directed to weaken or
defeat the worker's right to self-organize or
to engage in lawful concerted activities
(Azucena,2007)

Nature of Unfair Labor Practices:


1. Ciminal offenses against the State,
2. Violations of civil ights of both labor and
management;
3. Violate the constitutional right of workers
and employees to self-organization;
4. Ne inimicat to the tegitimate inferesfs of
both labor and management, induding
their right to bargain collectively and

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Aspects of Unfair Labor Practice CHAPTER II. UNFAIR LAtsOR PRACTICES


OF EMPLOYERS

ART. 248: ULP THAT MAY BE COMMITTED


BY AN EMPLOYER
1, Offcers and agents of 1. Agents and ofiicers
employer; or who pafticipated ar 1. lnterference
2. Labor organizatlon, authoized or r To interfere with, restrain or coerce
officers and agents. the act, and
employees irr the exercise of their right to
2. Agents,
representatives, self-organization.
members of the
government board, Test: whether the employer has engaged
including ordinary in cuduct which, it may reasonably be
members. (Att. 289 & said, tends to interfere with the free
Att.249) exercise of the employees' right and it is
not necessary that there be direct
evidence that any employee was in fact
MTC/RTC, as the intimidated or coerced by the statements
case may be (Art. of threats or the employer if there is a
288) reasonable interference that the anti-union
conduct of the employer does have an
adverse effect of self-organization and
substantial evidence beyond reasonable collective bargaining. (The lnsular Life
doubt (subject to Assurance-NATU v. The lnsular Life
prosecution and
punishment) Assurance Co., Ud., No. L-25291, January
s0, 1971)

one year from the . one year from the Totality of Conduct Doctrine
accrual of the ULP act accrual ofthe ULP act The culpability of employe/s remarks is to
(Art.290) (Art. 290), however, it be evaluated not only on the basis of their
will be suspended implications, but against the background of
once the and in conjunction with collateral
administrative case circumstances. (l b id.)
has been filed and
would only continue Examples:
running once the
a. Outright and unconcealed intimidation
administrative case
has attained finality. b. ln order that interrogation would not
. Final judgment in the be deemed coercive:
administrative i. The employer must communicate
proceeding finding to the emploYee the PurPose of
that ULP has been questioning
committed is a ii. Assure him that no reprisal would
prerequisite in filing a
criminal case for ULP. iii.

Notel Final judgment in


the administative
proceedings shall not be
binding in the criminal
c6e nor shall be
considered as an
eviderce of guilt bd
merely as a proof of
compliance of the
requirem ents prescribed
bythe Code.

9s
LABOR LAW
LABOR RELATIONS

interets of the company reasonably Runaway Shop - an industrial Plant


dernand it Unless there are circumstances moved by its owners from one location to
which direcfly point to interference by the another to escape labor regulations or
cornpany with the employees' right to self- state laws or todiscriminate against
organization, the transfer of an employee employees at the old plant because of
should be considered as within the bounds their union activities.
allcryved by law (e.9. despite transfer to a
lower position, his original rank and salary 4. Company-Domination of Union
remained undiminished) (Rubberworld To initiate, dominate, assist or otherwise
Phils., v. NLRC, GR No. 75704, July 19, interfere with the formation or
,989). administration of any labor organization,
including the giving of financial or other
2. Yellow Dog Condition support to it or its organizers or officers.
To require as a condition for employment
that a person or an employee shall not join Company Unionism/Captive Unionism
a labor organization or shall withdraw from Considered as a ULP because the officers
one to which he belongs. will be beholden to the employers and they
will not look after the interest of whom they
Yellow Dog Contract - a promise exacted represent.
from workers as a condition of
employment that they are not to belong to, Forms.'
or attempts to foster, a union during their a. lnitiation of the company union idea
perrod of employment. lt is null and void by:
because: i. Outright formation by employer or
a. ll is contrary to public policy for it is his representatives;
tantamount to involuntary servitude. ii. Employee formation on outright
b. lt is entered into without consideration demand or influence bY emPloYer;
for employees in waiving their right to and
self- organization. iii. Managerially motivated formation
c. Employees are coerced to sign by employees.
contracts disadvantageous to their
family. b. Financial support to the union by:
i. Employer defraYs union exPenses;
Note: One of the cases of ULP that may ii. Pays attorneY's fees to the
be committed in the absence of an Er-Ee attorney who drafted the
relationship. Constitution or by laws of the
union;
3- Contracting Out
To contract out services or functions being c. Employer enco'uragement and
performed by union when such assistance - lmmediately granting of
'wijl interfere with,members
restrain or coerce exclusive recognition as bargaining
employees in the exercise of their right to agent without determining whether the
self-organization. unron ty of
the

Does Art. 248[c] mean that an employer


cannot contract out work?
NO. Contracting out services is not ULP
per se. lt is ULP only when the following
conditions exist: of dism
1. The service contracted out are being
pertormed by union members; and
2. Such contracting out interteres with,
restralng or coerce imployees in the
exerclse of their ight to seff,
organization.

HOWEVER, when the contracting out is


betng done for business reasons such as leges
decline in
business, inadequacy of under
equipment or to reduce cost, then it is a
valid exercise of management prerogative.

96
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2011 CENTRALIZED BAR OPERATIONS
directed to encourage or discourage union c. Delaying negotiations by discussing
membership. unrelated matters;
d. Refusal to accept requeststo bargain;
Three Components of Discrimination: e. Rejecting a union's offer to prove its
a. lt prohibits discrimination in terms and majority claim;
conditions of employment in order to f. Shutdown to avoid bargaining; and
encourage or discourage membership S. Engaging in surface bargaining.
in the union;
b. lt gives validity to union security Surface Bargaining- going through
agreements; and the motions of negotiating without any
c. lt allows an agency shop arrangement Iegal intent to reach an agreement. lt
whereby agency fees may be involves the question of whether or not
collected from non-union members. the employer's conduct demonstrates
an unwillingness to bargain in good
Discrimination Distinguished from faith or is merely hard bargaining
Classification (Standard Chartered Bank v. Hon.
While discrimination is considered an unfair Confesor, GR No. 114974, June 16,
labor practice, classification is not because it 20A4 June 2004).
merely differentiates the employees in
accordance with their respective jobs and 8. Paid Negotiatjon
accords them the appropriate levels of pay or To pay negotiation or attorney's fees to the
benefits due them by reason thereof. union or its otficers or agents as part of the
settlement of any issue in collective
6. Discrimination because of Testimony bargaining or any other disputes.
To dismlss, discharge or othenuise
prejudice or discriminate against an 9. Violation of CBA
employee for having given or being about The violation must be gross; flagrant
to give testimony under this Code (Ihe and/or malicious refusal to comply with the
only ULP ad whieh is not anti-unionism). economic provision of the CBA (Att. 261).

Subject Matter of Testimony: can be Note: 'GROSSLY VIOLATE" phrase is an


anything under the Code. amendment by R.A. 6715. Hence, if the
violation is not gross, it is not ULP but a
What is ULP is the employer's retaliatory grievance under the CBA.
act.regardless of the subject of employee's
complaint or testimony. ln effect, if a Note: All the aforementioned acts (Nos. 1-9)
retaliatory act is done under Arf. 118, the must have arelation to the employees'
consequence is ULP under Arf. 248[f] exercise of their right to self-organization. Anti-
(Mabeza v. NLRC, GR No. 118506, April union or anti-organization motive must be
18,1997). proved because it is a definitional element of
ULP.
7. Violation of Duty to Bargain
To violate the duty to bargain collectively The burden of
as prescribed by this Code.

The following acfs are held to constitute as a rbdbbh#ffffii# might


refusal to bargain:
a. Alleging that the union is irresponsible;
b. Transferring operation to elude the
union; (Run - Away shop);

, Run-Away Shop - is an unfair labor


practice of management which usually
takes place by effecting the transfer of
ownership, the plant itself, or its
equipment, or by temporarily closing
itsbusiness purposely to bust the
union or to evade the payment of mere
legitimate obl igations. Con where
employer exercising

97
LABOR LAW
LABOR RELATIONS

discharge, and the employee quits as a result union in good standing as a condition for
of the prohibition. continued employment.

Security Arrangements - stipulations in the 2. Union Shop Agreement


CBA requiring membership in the contracting Stipulation whereby any person can be
union as a condition for employment or employed by the employer but once
retention of employment in the company. employed such employee must, wlthin a
specific period, become a member of the
Principles of Union Security contrac\ing union and remain as such in
Clauses/Arrangements good standing for continued ernployment
1. Protection - to shield union members for the duration of the CBA. (Take note of
from whimsical and abusive exercise of the exceptions in the preceding number.l
management prerogatives.
2. Benefits - an additional membership will 3. Saintenance of MembershiP ShoP
insure additional source of income to the Agreement
union in the form of union dues and The agreement DOES NOT require non-
special assessrient. members to join the contracting union BUT
3. Self-preservation - it strengthens the provides that those who are members
union through selective acceptance of new thereof at the time of the execution of the
members on the basis of commitment and CBA and those who maY thereafier, on
loyalty. their own volition, become members must
for the duration of the agreement maintain
Different Kinds of Union Security their membership in good standing as a
Arrangements (Exceptions to ULP on condition for continued employment in the
lnterference on the Employees' Right to Self- company for the duration of the CBA.
Qrg an i zat ion) (CU M M -PA-BE)
4. Preferential Shop Agreement
1. Closed-Shop Agreement An agreement wherebY the emPloYer
. The employer undertakes not to merely agrees to give preference to the
employ any individual who is not a members of the bargaining union in hiring,
member of the contracting union and promotion or filing vacancies and retention
the said individual once employed in case of lay-off. The employer has the
must. for the duration of the right to hire from the open market if union
agreement, remain a member of the members are not available.
union in good standing as a condition
for continued empoyment. {gency Shop Agreement
. Does not have any retroactivity. An agreement whereby employees must
. Applies only to new hires either join the union or pay to the union as
exclusive bargaining bgent a sum equal to
Exceptions: that paid by the members.
a. Employees belonging to any religious
sect which prohibit affiliation of their Note: This is directed against "FREE
members with any labor organization RIDER'
are not covered by such agreement. activiti
The free exercise of religious belief is the
superior to contract rights (Victoriano
v. Elizalde Rope Workers, No. L-
25246, September 12, 1974).
b. Members of the rival union are not
covered by such arrangement.
c. Confidential employees excluded from
the
rank and file bargaining unit
d. Employees excluded by express term the
ing
of the agreement

Semi-Closed Shop Agreement - the


prospective employee must be a member
of the union as a condition of employment Em bers at
and has no requirement for the employee the need not
to remain as member of the contracting join th hired
thereafter

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7. lxclusive Bargaining Shop and conditions under which membership


The union is recognized as the exclusive or continuation of membership is made
. bargaining agent for all employees in the available to other members;
bargaining unit, whether union members
or not. Note: A union member maY not be
expelled from the union, and consequently
8. pargaining for Members Only from his job, for personal or impetuous
The union is recognized as the bargaining reasons or for causes foreign to the
agent only for its own members. closed-shop agreement. (Manil a Mandarin
Employees Union v. NLRC, No. L-76989,
Requirements for a Valid Termination by September 29, 1987)
the Employer of the Services Closed-Shop
Agreement To violate the duty ar refuse to bargain
1. The agreement must be expressed in a coltectively with the employer provided
CLEAR AND UNEQUIVOCAL way so as that it is the representative of the
not to leave room for interpretation employees;
because it is a limitation to the exercise of To cause or attempt to cause an employer
the right to self-organization. to pay or deliver or agree to pay or deliver
2. Any doubt must be resolved against the any money or other things of value, in the
existence of a closed-shop agreement. nature of an EXACTION, for services
3. The agreement can only have which are not performed or not to be
PROSPECTIVE APPLICATION and performed, including the demand for a fee
cannot be applied retroactively. for union negotiations.
4. lt can only. be exercised by giving the
employee his right to DUE PROCESS. Featherbedding (make-work activities) -
a. The employer has the right to satisfy refers to the practice of the union or its
himself that there are sufficient bases agents-in causing or attempting to cause
for the request of the union. an employer to pay or deliver or agree to
b. The termination of the services of the pay or deliver money or other things of
employee is not automatic upon the value, in the nature of exaction, for
request of the union. services which are not performed or not to
5. lt CANNOT BE APPLIED to employees be performed, as when a union demands
who are already MEMBERS OF THE that the employer maintain personnel in
RIVAL UNION or to the employees based excess of the latte/s requirements.
, on their RELIGIOUS BELIEFS.
Note: lt is not featherbedding if the work is
CHAPTER III. UNFAIR LABOR PRACTICES performed no matter how unnecessary or
OF LABOR ORGANIZATIONS useless it may be.

ART. 249: UNFAIR LABOR PRACTICES OF To ask for or accePt negotiation or


LABOR ORGANIZATIONS attorney's fees from employers as part of
the settlement of any issue in collective
1. Io restrain or caerce 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; 1.
2.
Note: INTERFERENCE by labor
organization is not ULP as long as the 3.
interference does not amount to restraint
or coercion.
for a
To cause or attempt to cause an employer labor
to discriminate against an employee,
including discrimination against an em
employee with respect to whom dispute.
membership in such organization has Resulting
been denied or to terminate an employee contract" - substantially
on any ground other than the usual terms improve the and benefrb

99
LABOR LAW
LABOR RELATIONS

and whose benefits are lar below those that Ju risdictional Preconditions (D-PPE)
are proMded bY law. 1, !mployer-employee relationship
2. lossession of the status of majority
Blue-Sky Bargaining - is defined as making Gpresentation bY the employees'
exaggerated or unreasonable proposals. representative in accordance with any of
Whether or not the union is engaged in blue- the means of selection or designation
sky bargaining is determined by the evidence provided for bY the Labor Code;
presented by the union as to its economic 3. itr:oof of majority representation
demands. Thus, if the union requires (Certification of the BLR that the
exaggerated or unreasonable economic representative of the employees is the
demands, it is guilty of ULP (Standard sole and exclusive bargaining age1t
Chartered Bank v. Hon. Confesor, GR No. having won in a bertification election); and
114974, June 16 2ffi4) 4. Demand to bargain under Article 250[a] ot
the Labor Code (Kiok Loy v. NLRC, No. L-
TITLE SEVEN. COLLECTIVE BARGAINING 54334, January 22, 1986)'
AND ADMINISTRATION OF AGREEMENTS
Note: Where a majority representative has
ART. 250: PROCEDURE lN COLLECTIVE been designated, it is an ULP for the
BARGAINING employer, as refusala collective of
bargaining, to deal and negotiate with the
Collective Bargaining - obligation to meet minority representative to the exclusion of
and convene promptly and expeditiously in the majoritY rePresentative.
good faith for the purpose of negotiating an
agreement with respect to wages, hours of Collective Bargaining Agreement (CBA) - a
work and all other terms and conditions of contract executed upon request of either the
employment including proposals for adjusting employer or the exclusive bargaining
any grievances or questions arising under repiesentative of the employees, incorporating
such agreement and executing a contract the agreement, reached after negotiations with
incorporating such agreements if requested by respect to:
either party but such duty does not compel any 1. Wages;
party to agree to a proposal or to make any 2. Hours of worK and
concession. (Art.252) 3. All other terms and conditions of
employment in a bargaining unit, including
General Rule: No court or administrative proposals for adjusting any grievance or
agency or official shall have the power to set question under such agreement. (Davaa
or fix wages, rates of pay, hours of work or Integrated Port Stevedoring Services v'
other terms and conditions of employment Abarquez, GR no. 102132, March 19,
except as otherwise provided under the Labor 1993) (i.e. mandatory provisions for
Code. grievances and arbitraflon machineries)

Purpose: to encourage a truly democratic Zipper Clause - a stipulation in a .CBA


method of regulating the relations between the iniibating that issues that could have b-e-e1
ined in the CBA
employers and employees by means of negotiated
agreements freely entered into through
collective bargaining.
liio;1. iu fil:.":: i.l, ,l:,
Exceptions.' r^!Le*a#l$*ly-?- n'
1. National Wages and Productivity
Commission and Regional Tripartite
Wages and Productivity Board- as to wage
fixing (Arfs. 99 and 122)
2. National Conciliation and Mediation Board
and the National Labor Relations
Commission- as to wage distortions (Arf.
may
124)
be
3. Secretary of Labor and Employment and
President of the Philippines- as to
certification and assumption powers over
labor disputes (Art. 263[g])

100
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2011 CENTRALIZED BAR OPERATIONS
5. lf not resolved, the parties may go to to other matters, he is free to bargain or not to
where they want and gesort to any other bargain.
laMul means (either to settle the dispute
or submit it to a voluntary arbitrator). ART. 252: MEANING OF DUry TO
BARGAIN COLLECTIVELY
Note: During the conciliation proceeding in
the Board, the parties are prohibited from Where NO CBA Exists
doing any act which may disrupt or impede The performance of a mutual obtigation:
the early settlement of the disputes (Art. 1. To MEET AND CONVENE promptly and
250[d] LC\. expeditiously in good faith for the purpose
of negotiating an agreement with respect
Kinds of Bargaining to wages, hours of work and all other
1. Single Enterprise bargaining - involves terms and conditions of employment
negotiation between one certified labor including proposals for adjusting any
union and one employer" grievances or questions arising under
2. Multi-employer bargaining involves such agreement, and
negotiation between and among several 2. To EXECUTE A CONTRACT
labor unions and employers. incorporating such agreements if
requested by either party.
Stages in the Negotiation for a Collective
Bargai ning Agreement (PreNEP-RRAI) Limitations
1. Preliminary Process - written notice for 1. The duty to bargain collectively does not
negotiation which must be clear and compel any party to:
unequivocal. a" Agree to a proposal;
2. Negotiatidn Process. b. Make a concession; or
3. !.xecution Process - signing of the c. Make room for "take it or leave it"
agreement. posture.
4. lublication for at least 5 days before 2. The parties cannot stipulate terms and
ratification. conditions of employment which are below
5. latification by the majority of all the the minimum requirements prescribed by
workers in the bargaining unit represented law.
in the negotiation (not necessary in case
of arbitral award) Where CBA Exists (See lVofes under Art.
6. Registration Process. 28)
a. requisites for registration: Note: Collective bargaining does not end with
b. mandatory provisions; the execution of the agreement. lt is a
c. payment ofP 1,000; continuous process. The duty to bargain
d. 5 copies of CBA; and imposes on the parties during the term of their
e. proof of ratification. agreement the mutual obligation to meet and
7. Administration Process - the CBA shall be confer promptly and expeditiously and in good
jointly administered by the management faith for the purpose of adjusting any
and the bargaining agent for a period of 5 grievances or question arising under such
years. agreement v. ClR,
8. lnterpretation and Application Process. L

Mandatory Provisions of the CBA


1. Wages; 1.
2. Hours of work; 2.
3. Grievancemachinery;
4. Voluntary arbitration; 2
5 Family planning;
6. Rates of pay; and
7. Mutual observance clause.
ln addition, the Bureau requires that the CBA
should include a clear statement of the terms which
of the CBA. longer
be brJt
Noie: Employer's duty to bargain is limited to asa Collective
MANDATORY BARGAINING SUBJECTS: as Bargain i 261, Labor
Code; Silva scRA 159).

101
LABOR LAW
LABOR RELATIONS

Economic Exigencies Do NOT Justify mandatory subject, Party B may complain


Refusalto Bargain that Party A's posture is just an excuse to
An emptoyer has been held not guilty of avoid bargaining on the mandatory,
refusal to bargain by adamantly rejecting the essential subjects of bargaining; thus,
union's economic demands where he is Party B can charge that PartY A is
OPERATING at a loss, on a low profit margin, bargaining in bad faith or is evading
or in a depressed industry, as long as he bargaining on terms and conditions of
continues to negotiate. But financial hardship employment - in short, PartY A is
constitutes no excuse for refusing to bargain committing ULP.
collectively.
Note: What the rule forbids is the posture
Acts NOT Deemed Refusalto Bargain of making settlement of a non-mandatory
1. Adoption of an adamant bargaining subject a pre-condition to the discussion or
position in good faith; settlement of a mandatory subject.
2. Refusal to bargain over demands for
commission of ULP; Deadlock - synonymous with impasse or a
3. Refusal to bargain during period of illegal standstill wh ich presu pposes reasona bl e eff ort
strike; at good faith bargaining but despite noble
4. There is no request for bargaining; intentions does not conclude an agreement
5. Union seeks recognition for an between the parties.
inappropriatelY large unit;
6. Union seeks to represent some persons ln case of a deadlock in the renegotiation of
who are excluded from the Code; the CBA, the parties may exercise the
7. The rank-and-file unit includes following
supervisors; 1. Calf upon the Natibnal Conciliation and
8. The demand for recognition and Mediation Board (NCMB) to intervene for
bargaining is made within the Year the purpose of conducting conciliation
following a certification election in which preventive mediation;
the clear choice wa$ "no union" and no ad 2. Refer the matter for voluntary arbitration or
interim significant change has taken place compulsory arbitration;
in the unit; and 3. Declare a strike or lockout upon
9. The union makes unlawful bargaining compliance of the legal requirements. This
demands. is the remedy of last resort.

Bargaining to the Point of Deadlock or ART.253: DUTY TO BARGAIN


lmpasse COLLECTIVELY WHEN THERE EXISTS A
1. Over a MANDATORY.SUBJECT - party COLLECTIVE BARGAINING AGREEMENT
may insist on bargaining and will not be
construed as bargaining in bad faith. General Rule: When thbre is an existing CBA,
the duty to bargain collectively shall also mean
.Reason: Duty to bargain requires meeting that neither party shall TERMINATE nor
and convening on the terms and MODIFY such agreement during its lifetime. lt
conditions of employment but does not is the duty of
require assent to the other party's 1. Keep
proposals.
andffiffiffif,t|"&
2.- Over a NON-MANDATORY SUBJECT -
party may not insist on bargaining to the
point of impasse, otherwise, he will be
construed as bargaining in bad faith.

Example: The employels insistence that


the union should change its negotiator
before bargaining can proceed to the
employees' wage and benefits is an
instance of bad faith bargaining because
the composition of the negotiating panel is 4ft. remaln
not a mandatory subject of bargaining. effecti the
parties as
Hence, if Party A insists on first settling a reached by
non-mandatory subject before tackling a

102
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2O1T CENTRALIZED BAR OPERATIONS

What may be done during the 60day Consolidated, lnc. v. Employees' and Worl<ers
freedom period Union-PAFLU, No. L-24711, April3O, 1968).
1. A labor union MAY DISAFFILIATE FROM
THE MOTHER UNION to form a local or Limitation as to its Application
independent union only during the 60-day It cannot be invoked to support the contentlon
freedom period immediately preceding the that a newly certified collective bargaining
expiration of the CBA. (Take note of the agent automatically assumes all the personal
limitation - see discussions on registration undertakings of the former agent - like the "no
of labor unions.) strike clause" in the CBA executed by the
2. Either party can serye a written notice to laller (lbid).
TERMINATE OR MODIFY THE
AGREEMENT at least 60 days prior to its CBA Proposed by Union may be imposed
expiration period. (on re-negotiable,/non- LOCK, STOCK AND BARREL on emPloYer
representational as-pecf of the CBA who refused to negotiate a CBA: Under this
see discusstbn on Art. 253.) - situation, the employer which violates the duty
3. A PETITION FOR CERTIFICATION to bargain collectively' loses its statutory right
ELECTION may be filed. to negotiate or renegotiate the terms and
conditions of the draft CBA proposed by the
Absorption doctrine- Otherwise known as union. Hence, the proposals of the union may
Accretion Doetrine; applies when there is be adopted as the CBA and, consequently,
absorption and integration by one entity of one imposed on the employer, lock, stock and
or more establishments having the same kind barrel.
and line of business having their respective
col ective barga r.r ing agreements with different
I i ART. 253-A: TERMS OF A COLLECTIVE
labor unions existing therein. Example is when BARGATNTNG AGREEMENT (CONTRACT
one company is sold to another; in which case, BAR RULE}
the duty to bargain which originally devolves
upon the selling pafty is transferred to the Duration of fte CBA
buying entity. r With respect to the representation aspect,
the same lasts for 5 YEARS.
Successor-lnlnterst Doctrine - When an o With respect to other provisions (economic
employer with an existing CBA is succeeded and non-economic), the same may last for
by another employer, the successor-in-interest a maximum period of 3 YEARS after the
who is a buyer in good faith has no liability to execution of the CBA.
the employees in continuing employment and
the collective bargaining agreemenf because Note: While the parties may agree to extend
these contracts are in personam. the CBA's original five-year term despite an
agreement for a CBA with a life of more than
Except: five years, the bargaining union's exclusive
1, When the successor-in-interest expressly bargaining status is effective only for five years
assumes the obligation; and can be challenged within sixty (60) days
2. The sale is a device to circumvent the prior to the expiration of the CBA's first five
obligation; or years. (F
3. The sale or transfer is made in bad faith.

Substitutionary Doctrine - where there *i"$"$'i [j],#;";trft


occurs a shift in the employees' union g *ue,x'apnn# Es }n q,l"gdsirj
allegiance after the execution of a collective
bargaining contract with the employer, the
employees can change their agent (the labor
union) but the collective bargaining contract
which is still subsisting continues to bind the
employees up to its expiration date. They may,
however, bargain for the shorlening of said
expiration date.

The employees cannot revoke the validly


executed collective bargaining contract with
their employer by the simple expedient of
changing their bargaining agent. The new
agent must respect the contract (Benguet

103
LABOR LAW
LABOR RELATIONS

Effectivity and Retroactivity of othet


Economic Provisions of the CBA non-representation holding
1. lf CBA is the VERY FIRST for the aspect
(ECONOMTC
cedification
election
bargaining unit, the parties have to decide
PROVISIONS may
the CBA's effectivity date.
be renegotiated not
later than three
Those made within 6 months after the date
of expiry of the CBA are subjed to
automatic retroaction to theday ART.254: No INJUNCTION RULE
immediately following such date of expiry.
General Rule: NO temporary or permanent
Example: CBA expired on December 31. injunction or restraining order in any case
New CBA concluded on March 31. The involving or growing out of labor dispufes shall
effectivity date is January 1. be issued by any court or other entity.

Those NOT MADE WITHIN 6 MONTHS, Exception: As otherwise provided in Articles


the parties may agree on the date of 218 {Powers of the Commission/NlRC) and
retroaction. 264 (Prohibfted Activities) of this Code.

This rule applies ONLY if there is an Rationale: lnjundion contradicts the


existing agreement. lf there is no existing constitutional preference for voluntary modes
agreement, there is no retroactive effect of dispute settlement.
because the date agreed upon shall be the
start of the period of agreement. The following are authorized to issue
injunctions or restraining orders
Note: Arflcle 259A on retroaction does 1. NLRC or any division. (Att. 218)
not apply if the provisions were imposed 2 President. ln case of labor dispute in
by the Secretary of Labor by virtue of industries which are indispensible to
arbitration. lt applies only if the agreement national interest. (Att. 263)
was voluntaily made by the pafties. 3. Secretary. ln case of labor dispute in
industries which are indispensible to
The notice of Representation national interest, the Secretary may
assume jurisdiction over the dispute or
intention to aspect of the certify the same to the Commission for
terminate, amend CBA shall be
or alter the for a term of compulsory arbitration, Such assumption
provisions of the fle (5) A or certification shall have the effect of
CBA shall be filed petition for automatically enjoining the intended or
within the 60-day certification impending strike. lf one.has already taken
period, immediately elec-tion may be place, all striking or locked out employees
prior to the entertained and shall immediately return to work and the
expiration of the a certification employer shall immediately re-admit
CBA. election may be employees and resume operations.
The economic conducted
provbions, within the 60-
however, may be day period
renegotiated not immediately
later than three (3) prior to the Rub-S "&fu dbffi,ffi*irts are
years. Those expiration of
economic the CBA.
provisions entered
within 6 months
from the expiry of
their term as fixed
in the CBA shall
retroact to the day
immediately
following such date,
if beyond 6 months
the efiectivity is by Note: {9, third
agreement of the parties secure a
court ( their
L-25171,

144
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2OT 1 CENTRALIZED BAR OPERATIONS

August 17, 1967). (See nofes under Afts. 263 3. Achieve increased productivity (R.A.
and 264). 6971).

ART. 255: EXCLUSIVE BARGAINING ARTS. 256-259: PETITION FOR


REPRESENTATION AND WORKER'S CERTIFICATION ELECTION
PARTICIPATION IN POLICY AND
DECISION-MAKING Bargaining Unit - a group of employees of a
given employer, comprised of all or less than
Extent of the Workers' Right to Participate all the entire body of the employees, which,
ln Policy and Decision-Making Processes consistent with equity to the employer, indicate
to be best suited to serve the reciprocal rights
Such right refers ONLY to pafticipation in and duties of the parties under the coilective
grievance procedures and voluntary modes of bargaining provision of the law.
settling disputes and NOT to formulation of
corporate programs and policies. Bargaining Unit v. Union

Note: An employer may solicit questions,


suggestions and complaints from employees
even though the employees are represented
The voters are the
by a union, provided: CBU, whether
1. The collective bargaining representative union or non-union
executes an agreement waiving the right members (Arfs,
to be present on any occasion when 255 and 256).
employee qrievances are being adjusted
by the employer; and
2. Employer acts strictly within the terms of
this waiver agreement.

One-Union, One4ompany Policy - the


The voters are the
proliferation of unions in an employer unit is
CBU, notjr.rstthe
discouraged as a matter of policy unless there union members
are compelling reasons which would deny a {Att.2s1).
certain class of employees the right to self-
organization for purposes of collective
Certification Year - refers to the period
bargaining.
wherein collective bargaining should begin,
Exceptions:
which is within 12 months following the
determination and certification of employees
1. Supervisory employees who are allowed exclusive bargai ni ng representative.
to form their own unions apart from the
rank-and-file employees; and
2. The policy should yield to the right of Four Factors in Determining the
employees to form unions for purposes not
Appropriate Bargaining Unit (G-CHE) (Sfa.
. contrary to law, self-organization and to
enter into collective bargaining
negotiations.
a. Two companies cannot be treated into
a single bargaining unit even if their
businesses are related.
b. Subsidiaries or corporations formed
out of former divisions of a mother
company following a reorganization
may constitute a separate bargaining
unit.

Labor Management Council - deals with the


employer on matters affecting the employee's
rights, benefits and welfare.

Purposes are to'.


1. Promote gainful employment;
2. lmprove working conditions; and

105
LABOR LAW
LABOR RELATIONS

. Seasonal; and 3. Petition was fled within 1 year from


. Probationaryemployee. entry of voluntary recognition or a
valid certification, consent, or run-off
Things to Gonsider ln Determining the election and no appeal on the results
Community of lnterest Doctrine thereof is pending.
1. Similarity in the scale and manner of 4. A duly certified union has commenced
determining earnings; and sustained negotiations with the
2. Similarity in employment benefits, hours of employer or there exists a bargaining
work and other terms and conditions of deadlock which had been submitted to
employment; conciliation or arbitration or had
3. Similarity in the kinds of work performed;
' become the subject of a valid notice of
4. Similarity in the qualifications, skills and strike or lockout to which an
training of the employees; incumbent or certified bargaining
5. Frequency of contract or
interchange agent is a PartY.
among the employees; 5. ln case of an organized establishment,
A Common supervision and determination of failure to submit the 25% suPPort
labor-relations policy; requirement for the filing of the petition
7. History of previous collective bargaining; for certif ication el ecti on.
8. Desires of the affected employees; and
9. Extent of union organization. B. Consent Election - voluntarily agreed
upon by the parties with or without the
Methods to Determine Bargaining Unit intervention of DOLE.
A. Certification Election - the process of
determining by secret ballot the sole and Note: Cerflfcation election and consent
exclusive bargaining agent of the election are separate and distind from
employees in an appropriate bargaining each other.
unit, for purposes of collective bargaining
(employees in the 3 payroll period prior to Certification v. Consent Election
the certification election may vote).
To determine the sole To determine the issue ot
Certification Election Not Necessary and exclusive bargaining majority representation of
when: agent of all the all the workers in the
1. Employer voluntarily recognizes the employees in an appropriate collective
said union; and appropriate bargaining bargaining unit mainlY for
2. Employees designate the union as the unit for the purpose of the purpose of
bargaini ng representative. collective bargaining. determining the
administrator of the CBA
Nature when the contracting
A certification election is NOT A unlon suffered massive
disaffiliation but not for
LITIGATION but merely an investigation of
a. non-adversarial fact-finding character in
the purpose of
determining the
which the Bureau of Labor Relations plays bargaining agent for
the part of a disinterested investigator of collective
seeking merely to ascertain the desires of
fhe employees as to the matter of their
representation. (Airline Pilots Assn. of the lu ntary;&da*b&ifrffie- tn"
Philippines v. ClR, 76 SCRA 274)

Grounds for Dismissal of the Petition


for Certification Election (D.O. /rc-N)
1. Petitioner is not iisfed in the
. depaftment's registry of legitimate
labor unions or that its legal
personality has been revoked or
cancelled with finality.
2. Petition was filed before or after the
fteedom period of a duly registered
CBA; provided that the 60day period
based on the original CBA shall NOT
be affected by any amendment,
extension, or renewal of the CBA.

106
5m Eebn @ollege of ltflto
2011 CENTRALIZED BAR OPERATIONS

Summary of the Procedure in Voluntary


Recognition (D. O. 40-03)
1. When and Where to file: 30 days from
such recognition, employer and union shall
submit a notice of voluntary'recognition
with the Regional Office which issued the
recognized labor union's certificate of
registration or certificate of creation of a
chartered local.
2. Requirements: Original and 2 duplicate
copies of:
a. Joint statement under oath of
voluntary recognition;
b. Certificate of posting of joint statement
for 15 consecutive days in at least 2
conspicuous places in the
establishment of the bargaining unit;
c. Approximate number of employees in
the bargaining unit and the names of
those who supported the recognition;
and
d. Statement that the labor union is the
orily legitimate labor organization
operating within the bargaining unit.
All accomplnying documents of the notice
for voluntary recognition shall be certified
under oath by the employer representative
and president of the recognized labor
union.
3. Action on the notice by the Regional
Office, through the Labor Relations
Division, within 10 days from receipt of the
notice of voluntary recognition. lf there is
insufficiency of requirements, it must be
complied with within 10 days from notice,
otherwise, it shall be dismissed without
prejudice to its re-submission.
4. Effect: bars the filing of a petition for
certification election by any labor
organization for a period of 1 year from
date of entry of voluntary recognition.

Effect of Voluntary Recognition by the


Employer
Through voluntary recognition by
the
employer, the labor organization is recognized ##{i',&
by the employer as the exclusive bargaining r'q;"'ii| - La
t- f L' i 4r'.iJ *t;
e..P a.r ii!*' L ;arli!
agent which may collectively bargain with such 1

employer. t

to7
LABOR LAW
LABOR RELATIONS

Distinctions

Purpose is to determine the sole and Requires a petition for certification


exclusive bargaining agent of all the election filed by a union or employer. A
employees in an appropriate bargaining Med-Arbiter grants the petition and an
unit for the purpose of collective election officer is designated by the
bargaining Regional Director to superv'tse the
election

Nde: Med-Arbiter maY determine if


there is employer-employee relationship
and if the voters are eligible.

Purpose is to determine the issue of Held by agreement of the unions with or


majority representation of all the without the participation of the Med-
workers in the appropriate collective Arbiter
bargaining unit mainly for the purpose
of determining the administrator of the
CBA when the contracting union
suffered massive disaffiliation and NOT
for the purpose of determining the
bargaining agent for Purposes of
collective bargaining
Takes place between the unions who
received the two highest number of
votes in a certification election with
three (3) or more choices, where not
one of the unions obtained the majorfu
of the valid votes cast, provided that the
total union votes is at least 50% of the
votes cat
Takes place in two instances:
if one choice receives a pluraltty of vote
and the remaining choices results in a
tie; or
if all choices received the same number
of votes.
ln both instances, the NO UNION is
also a choice.

Certification Election ln an

r Upon the filing of a verified 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 cfrapter which has
been bsued a charter certificate by the national
union or federation, questioning the majority status
of the incumbent bargaining agent within the 60-
day freedom period before the expiration of a CBA.
r The petition must be supported by the writen
consent of at least 25o/o sl all the employees in the
appropriate bargaining unit.
r The employer cannot file a petition for certification
election; only a legitimate labor organization,
national union or federation which has already
'ssued a charter certilrcate to its local chapter
participating in the certifpation election or a local
chapter which has been issued a charter certificate
by the national union or federation can file such

108
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2011 CENTRALIZED BAR OPERATIONS

1. \Men there is a CBA, the labor oroanization can g subject however to the ONE-E
flle a petition for certification election within the 60
day freedom period (CONIMCT-BAR RUL$
2. When there is no CBA, then the labor
organization can file a petition for certification
election at any time, subject to the DEADLOCK
BAR RULE.

Requisites before a Labor Union can be shall not be considered a party thereto with a
Declared a Winner (Double Majority RuleJ concomitant right to oppose a petition for
1. Majority of the eligible voters cast their ceftificati on election.
. votes;AND
2. Majority of the valid votes cast is for such The employer's participation in such
union. proceedings shall be limited to:
1. Being notified or informed of petitions of
How to Determine the Double Majority Rule such nature; and
1. ln determining the eligible votes cast (Frrsf 2. Submitting the list of employees during the
M ajority), include spoiled ballots. pre-election conference should the Med-
2. ln determining valid votes (Second Arbiter act favorably on the petition.
Majority), eliminate spoiled ballots but
include challenged votes. Rules Which Prevent the Holding of a
Certification Election
Run-Off Election
A run-off electlon is proper if the following Contract - Bar Rule
conditions exist, namely: While a valid and registered CBA of a fixed
1. Valid Election took place because majority duration is subsisting, the BLR is not allowed
of the Collective Bargaining Unit members to hold an election contesting the majority
voted fFirst Majorityl ; status of the incumbent union during the five
2. The said election presented at least fhree year term of the CBA except during the 60-day
choices (e.9., Union Ane, Union Two, and period immediately prior to the expiration of
No Union); the CBA.

Note: "No Union' shall not be a choice in Requirements in order to invoke Contract-
the run-off election. Bar Rule:
1. Agreement is in writing and signed by all
3. Not one of the choices obtained the contracting parties;
majority (50%+1-second majority) of the 2. lt must contain the ferms and conditions of
valid votes cast; employment;
4. The tofal votes for the unions is af /easf 3. Covered employees in an appropriate
50% ol the votes cast; bargaining unit;
5. There is no unresolved challenged votes 4. It is for a reasonable period or duration;
or election protest which if sustained can 5. It must be ratif,ed',
materially alter the results; and o_ It must and
6. The two choices which garnered the Rule or
highest votes will be voted and the one
which garners the highest number of votes
will be declared the winner provided they
get the majority votes of the total votes
cast.

Who Participates in the Run-Off Election:


The unions receiving the highest and second
highest number of votes cast.

ART. 258-A: EMPLOYER AS BYSTANDER


{New Provision inserted by R.A.94811

ln all cases, whether the petition for The e


certification election is filed by an employer or agreement
a legitimate labor organization, the employer the following

109
LABOR LAW
LABOR RELATIONS

1. The CBA is unregistered, i.e. not certified lndications of a Genuine Deadlock


by the BLR or not registered by the 1. The submission of the deadlock to a third
RegionalOffice. party conciliator or arbitrato[ and
2. The CBA is inadequate or incomplete, l.e., 2. The deadlock is the subject of a valid
it does not contain all the substantial notice of strike or lockout.
demands on terms and conditions and
leaves out matters which should have Negotiation Bar Rule
been stipulated, where the stipulation A petition for certification election cannot be
becomes a sweetheart contract. entertained if, before the filing of the petition
3. DOCTRINE OF PREMATURE for certification election, the duly recognized or
EXTENSION - the CBA was hastily certified union has commenced negotiations
entered into, i.e., the renewal or extension with the employer in accordance with Arf. 250
of the agreement was premature, of the Labor Code.
frustrating the right of the employees to
petition for a certification election at the Certification Year Rule
proper time. No petition for certification election may be
4. Withdrawal of affiliation from the filed wiihin one year from the date of a valid
contracting union brought about by schism certification, consent, or run-off election or
or mass disaffiliation. from the date of voluntary recognition.
5. Contract where the identity of
the
representative is in doubt (ALU v. Ferrer- Examples of Bad Faith Bargaining
Calleja, GR No, 85085, November 6, 1. Surface Bargaining - occurs when
1989) employer constantly changes its positions
6. CBA entered into between the employer over the agreement.
and the union during the pendency for 2. Boulwarism - occurs:
certification election (Vassar lndustries a. When the employer directly bargains
Employees Union v. E*rella, GR No. with the employee disregarding the
46562, March 31, 1978). union.
7. CBA concluded between the employer and b. The aim was to deal with the union
the union (incumbent bargaining agent) is through the employees, rather than
not a bar to a certification election filed by with the employees through the union.
another union and said CBA can be c. Employer submits its proposals and
renegotiated at the option of the new adopts a 'take it or leave it" stand.
bargaining agent (AfU v. Hon. Noriel, No. This is not negotiation because the
L-48367, January 16, 1979). Take it or leave if" stand implies
8. A CBA registered with falsified supporting threat.
documents (Sec. 5[b], Rule XVI, Book V,
Rules lmplementing the Labor Code). TITLE SEVEN.A. GRIEVANCE MACHINERY
9. CBA was concluded in violation of an AND VOLUNTARY ARBITRATION (As
order enjoining the parties from entering lncorporated by R.A. 67151
into a CBA untilthe issue of representation
is resolved; and ART. 260: GRIEVANCE MACHINERY AND
10. Petition is filed during the 60-day freedom
period.

Deadlock Bar Rule


A petition for certification election cannot be
entertained if, before the filing of the petition
for certification election, a bargaining deadlock
to which an incumbent or certified bargaining
agent is a party, had been submitted to
conciliation or arbitration or had become the
subject of a valid notice of strike or lockout.
any
Deadlock - arises when there is an impasse, the
which presupposes reasonable effort at good
faith bargaining which, despite nobte
intentions, did not conclude in an agreement
between the parties.
Nature of

110
, Smr &ebe 0ottege of Asb
2011 CENTRALIZED BAR OPERATIONS

agreement can be registered in the absence of binding on the larger corporation, where
such procedure. relevant similarity and continuity of operations
across the change in ownership is evidenced
It is a part of the continuous process of by the wholesale transfer of smaller
to promote a
collective bargaining intended corporation's employees to the larger
friendly dialogue between labor and corporation's plant.
management as a means of maintaining
industrial peace. ART. 261: JURISDICTION OF VOLUNTARY
ARBITRATORS OR PANEL OF
Note: Waiver of grievance machinery VOLUNTARY ARBITRATORS'
procedure does not amount to a
relinquishment of employee's right to avail of Arbitrable Disputes
voluntary arbitration (Apalisok v. RPN, May 29, 1. Contract-negotiation disputes - disputes as
200s). to terms of CBA.
2. Contract-interpretation disputes - disputes
Voluntary Arbitration contractual arising under an existing CBA, involving
proceedings where parties to a dispute select such matters as the interpretation and
a judge of their own choice and by consent application of the contract, or alleged
submit their controversy to him for violation of its provisions.
determination.
Ju risdiction of Voluntary Arbitrators
Note: All grievances not settled within 7 days
from the date of its submission to the Exclusive Original Jurisdictiop Conferred
grievance machinery shall automatically be by Law
referred to voluntary arbitration prescribed in 1. All grievances arising from the
the CBA. interpretation or implementation of the
CBA;
Although the provision mentions "parties to a 2. Those arising from the interpretation or
collective bargaining agreement,' it does not enforcement of company Personnel
mean that a grievance machinery cannot be policies;
set up in a CBA-less enterprise. ln any work 3. Hear and decide wage distortion issues
place where grievance can arise, a grievance arising from the application of any wage
machinery (regardless of name) can be orders in organized establishments, and
established. 4. Unresolved grievances arising from the
interpretation and implementation of the
ln a unionized company, Att. 255 allows an productivity incentive programs under R.A'
employee whether union member or not, to 6071.
raise a grievance directly to the employer.
Note: lt is the Labor Arbiter and not the
Arbitration may be initiated by: grievance machinery which has jurisdiction
1. Submission Agreement - where the parties over dismissals pursuant to the union security
define the disputes to be resolved; or clause.
2. Demand or Notice invoking a collective
agreement arbitration clause.

Distinguished From Mediation


A med-iator is a disinterested 3'd party who
helps settle disputes involving terms and
conditions of a CBA. He is assigned and paid ref
by the State and is not selected by the parties.
He renders no final and binding decision, but
merely suggests soluti ons.

Efiect of Merger and Consolidation: toa


the
fry lloctine which
il *s that a duty to arbitrate arising from a
co*edlve bargaining agreement survives the
employe/s ceasing to do business as a
separate entity atter its merger with a
substantially large corporation, so as to be

111
.LABOR LAW

LABOR RELATIONS

Distinctions among a Voluntary Arbitrator, 4. Erroneous interpretation of the law; and


Mediator, and a Court of Law 5. Denial ot gubstantialjustice.

Certiorari Applicable
A disinterested Regular courts. A voluntary arbitrator is a "quasi-judicial"
accredited by party, usually a
instrumentality (Sec. I. B.P. 129, as amended
the Board as government
by R.A. 7902). lts decisions are therefore
such or a employee who
appealable to CA under Rule 43 of the Rules
person named helps in settling
or designated in disputes of Court. Hence, a petition for certiorari under
the CBA by the involving terms Rule 65 of the Rules of Court will lie ONLY
parties to act as and conditions where a grave abuse of discretion or an act
their Voluntary of a CBA and is without or in excess of jurisdiction of the
Arbitrator or one NOT selected voluntary arbitrator is shown, which may be
chosen with or by the parties, filed with the Court of Appeals.
without the but is usually
assistarce of assigned and TITLE EIGHT. STRIKES AND LOCKOUTS
the NCMB, paid by the AND FOREIGN INVOLVEMENT IN TRADE
pursuant to a State.
selection UNION ACTIVITIES
procedure
agreed upon in CHAPTER I. STRIKES AND LOCKOUTS
the CBA, or any
official
authorized by
ART. 263: STRIKES, PICKETING AND
LOCKOUTS
the Sec. of
Labor to act as
Voluntary
Concertbd Activity - one undertaken by two
Arbitrator upon or more employees or by one on behalf of the
written request others.
and agreement
of parties to a Strike - any temporary stoppage of work by
labor dispute. the concerted action of employees as a resulf
lnformal A mediator Formal
of an industial or labor dispute.
proceedings; renders no final proceedings,
Arbitrator and binding Rules of Court Labor dispute - includes any controversy or
determines decision and and the Rules maitter concerning terms or conditions of
what merely on Evidence employment or the association or
admissible suggesb apply. representation of persons in negotiations,
evidence. solutions. He fixing, maintaining, changing or arranging the
usually
suggests that
terms and conditions of employment,
parties submit regardless of whether or hot the disputants
the issue to an stand in the proximate relation of employers
arbitrator. and employees (Gold City lntegrated Poft
Seruice, lnc. v. NLRC,245 SCRA 627).
Arbitators are Judges are
not obliged to required to
follow observe stare
precedents set declsrs.
by other $3$oitions
arbitrations in I iF t t^;r'i

similar cases.
Appeal b to the Appeal is to a
CA under Rule higher court
43 of the Rules under the Rules
of Court. of Court and
8.P.129.

JudicialReview

Grounds: {JADES)
1. Lack of iurisdidion;
2. Grave qbuse of discretion;
3. Violation of due process;

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Law may prohibit strike but not the right to Moreover, the right to peaceful picketing
self-organization. A law may be passed should be exercised by the workers with
prohibiting selected sectors of labor from due respect for the rights of others. Hence,
resorting to strikes. However, a lanr cannot be commission by any picketing employee of
passed prohibiting selected sectors of labor any act of violence, coercion or
from organizing unions. intimidation is prohibited. Similarly,
stationary picket and the use of means like
Lockout - means the temporary refusal of an placing of objects to constitute permanent
employer to furnish work as a result of an blockade or to effectively close points of
industrial or labor dispute. entry or exit in company premises are
likewise not allowed bY law.
Note: Strike and lockout are similar in the
sense that they connote temporary stoppage Strike-Breaker - any person who obstructs,
of work. The difference is that sfrike is done by impedes or interferes by force, violence,
employees or labor unian while lockout is dane coercion, threats or intimidation with any
by the employer. peaceful picketing by employees during any
labor controversy affecting wages, hour' or
Boycott - an attempt, by arousing a fear of conditions of work or in the exercise of the
loss, to coerce others, against their will to right to self-organization or collective
withhold from one denominated "unfriendly to bargaining.
labof their beneficial business intercourse.
Strike Area - the establishment, warehouse,
Stowdown - a method by which one's depols, plants or offices, including the sites or
employees, without seeking a complete premises used as runaway shops of the
stoppage of Wor( retard production and employer struck against, as well as the
distribution in an effort to compel compliance immediate vicinity actually used by picketing
bythe employer with the labor demands made strikers in moving to and fro before all points of
upon him. entrance to and exit from said establishment. lt
also includes the area immediately before the
Picketing - act of marching to and fro the points of entrance and exit of establishment
employer's premises, usually accompanied by struck against. However, the ingress to and
the display of placards and other signs making egress from the establishment struck against
known the facts involved in a labor dispute. are not part of the strike are, and may not be
This is an exercise of one's freedom of blocked nor picketed.
speech.
Types of Strikes
. Article 264(e) of the Labor Code prohibits 1. Economic strikes - used to secure the
any person engaged in picketing from economic demands such as higher wages
obstructing the free ingress to and egress and better working conditions for the
from the employer's premises (Jackbilt workers.
lndustries, Inc. Vs. Jackbilt Employees 2. ULP strike - protest against ULP of
Workers Union-Naflu-KMU, G.R. No- management.
1 71 61 8-1 I, March 1 3, 2ffi9.)

Note: The picketing of a private home in a


residential district is generally held
improper, even when the picketers are
domestic servants. This is on the grounds
that "a home is not an industrial or a
business enterprise, that it is not acquired
or maintained for pecuniary gain or profit,
but rather, that it is an institution used and
maintained as a place of abode, and that
an enterprise not conducted as means of
livelihood, or for profit, does not come
within the ordinary rneaning of such terms
as'business','trade', or'industry'. $tate v.
Cooper, 205 Minn. 333, 285 N.W. 943,
122 A.LR.77)

113
LABOR LAW
LABOR RELATIONS

lllegal: Fails to comply with certain Economic v. Political Stike


requirements of the law, to wit: notice of
strike, vote, and report on strike vote.

Sympathetic Strikes - work stoppages of A voluntary strike An invofuntary strike; the


workers of one company to make common because the employee labor organization is
cruse with other strikers of
other will declare a strike to forced to go on strike
companies, without demands or compel management to because of the ULP
grievances of their c^Mn against the grant its demands. commited against them
by the employer. lt is an
employer.
act of self-defense since
the employees are being
lllegal: Because there is no labor dispute pushed to the wall and
between the workers who are joining the their only remedy is to
strikers and the latter's employer. stage a stike.

4. Primary Strike refers to a strike


conducted by the workers against their The collective bargaining Either:
employers involving a labor dispute agent of the appropriate 1. Collective bargaining
directly affecting them. bargaining unit can agent; or
declare an economic 2. The legitimate labor
Legal: Because there is a labor dispute stike. organization in behatf
involved. of its members.

5. Secondary Strikes
of
- are work stoppages
workers of one company to exert 30 days from the filing of 15 days from the filing of
pressure on their employer so that the the notice of strike the notice of strike
latter will in turn bring pressure upon the before the intended date subject to the 7-day
employer of another company with whom of actual strike subject to strike ban.
the 7-day strike ban.
another union has a labor dispute.

lllegal: because there is no labor dispute


involved. A strike can validly take place
only in the presence of and in relation to a No exception Cooling-off period may
mandatory. be dispensed with, and
labor dispute between employer and the union may take
employee. immediate action in case
of dismissal from
Cause Oriented Strikes
stand on certain national issues.
- to make a employment of thelr
officers duly elected in
accordance with the
"Wetga ng bayan" lllegal: A "Welga ng union's constitution and
bayan" is illegal because it is a political byJaws, which may
strike and therefore there is neither a consutute union
bargaining deadlock nor any ULp. lt is a busting where the
political rally.
the union

Quickie Strikes - brief and unannounced


temporary work stoppage.

ng
ke or
out is

Char
1. There Er-Ee
and the
person/s strike is called;

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2. The exisfence of a dispute between the Purposes: (a) to inform the NCMB of the
parties and the utilization by labor of the jntent of the union to conduct a strike vote;
weapon of concerted refusal to work as a (b) give the NCMB ample time to decide on
means of persuading or coercing whether or not there is a need to supervise
compliance with the working men's the conduct of the strike vote to prevent any
demands; acts of violence or irregularities attendant
3. The contention advanced by the workers thereto; and (c) should the NCMB decide,
that although the work ceases, the motu proprio or upon the request of any
employment relation is deemed to interested party including the employer, to
cantinue albeit i1 a state of belligerent supervise the strike vote, to give it ample
suspension; time to prepare for the deployment of the
4. There is work stoppage, which stoppage is req uisite personnel, includi ng peace officers.
temporary;
5. The work stoppage is done through the 4. A strike vote must be taken where a
concerted action of the employees, and majority vote of the members of the union
6. fhe striking group is a legitimate labor must approve ii, obtained by secret ballot
organization,' and in case of bargaining in a meeting duly called for the purpose; or
deadlock, is the employees' sole a lockout vote must be taken where a
bargaining representative. majority vote of the members of the Board
of Direc'tors of a corporation or association
Non-Stri keable lssues (NILAW) or partners in a partnership, must approve
(Article 263 (b); Dept. Order no.
9, Rute 12, it, obtained by secret ballot in a'meeting
Sec.2) duly called for the purpose;
1. Violations of CBA which are lrot gross in 5. A strike or lockout vote geport should be
character shall be resolved via the submitted to ihe NCM-DOLE at least
Grievance Machinery; seven days before the intended date of
2. lnter-union or [ntra-union disputes; strike or lockout;
3. tabor standards cases such as wage
orders (Guidelines governing Labor Purpose: The evident intention of the law
Relations [19 Oct. 1987] issued by Sec. in requiring the strike or lockout vote report
Drilon; see also Article 261, LC); as mandatory requirements is to
4. Those issues which had already been reasonably regulate the right to strike or
brought to voluntary or compulsory lockout, which is essential to the
grbitration. attainment of legitimate policy objectives
5. lssues involving wage distortion caused by embodied in the law.
legislated wage orders.
6. Except in cases of union busting, the
Procedural Requisites (GF-SARC-7) cooling off period prescribed by law should
1. lt must be based on valid and factual be fully observed
ground; a strike or lockout must be based 7. The f-day waiting period or strike ban
on either afier submission of strike or lockout vote to
a. Collective Bargaining Deadlock the NCMB-DOLE should be fully observed
(economic)
b. Unfair Labor Practice (political)
2. A notice of strike or lockout must be filed :;"t. I '-l fl1;-:.p\
with NCMB-DOLE;
a. At least 30 days from the intended
date thereof, if the issues involved
arose from a collective bargaining
deadlock.
b. At least 15 days from the intended
date, if the issues raised are in the
nature of unfair labor practices.

A notice must be served to the NCMB-


DOLE at least 24 hours prior to the taking
of 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,

115
LABOR LAW
LABOR RELATIONS

Labor Code - the constitutional precepts members in addition to the coolingoff


of due process mandate that the other period before actual strike.
party be notified of the adverse action of ,
the opposing party (Filipino Pipe and Should the strike vote be taken
Foundry Corporation v. NLRC,3?8 SCRA within or outside the cooling-off
68). period?
The law does not specify but NCMB's
b. Cooling-off Period before the Primer on Stike, Picketing and Lockout
intended date of actual strike subject states that if the strike vote is filed
to the 7-day stiike ban. within the cgoling-off period, the 7-day
a. Bargaining deadlock - 30 days requirement "SHALL BE COUNTED
b. ULP - 15 days FROM THE DAY FOLLOWING THE
c. -
Union Busting cooling-off EXPIRATION OF THE COOLING-OFF
period NEED NOT BE PERIOD.' ln effect, the 7 daYs are
OBSERVED and the union added to the 15 or 30 daYs.
may take action immediately
after the strike vote is Note: The 7-day waiting period or strike
conduc;ted and results ban applies in allcases, including union
submitted to regional branch busting. What the law comPletelY
disregardsin cases involving union
It ls that period of time given the busting is only the cooling-off period.
NCMB to mediate and conciliate the
parties. lt is that span of time allotted 3. Means Employed Test - a strike may be
by law for the parties to settle their legal at its inception but eventually be
disputes in a peaceful manner, before declared illegal if the strike is
staging a strike or lockout. lt is accompanied bY violence whichis
reckoned from the time when the widespread, pervasive and adopted as a
notice of strike or lockout is filed with matter of policy and not merely violence
the NCMB, a copy of said notice which is sporadic which normally occur in
having been serued on the other party a strike area. (See prohibited activities
concerned. Otherwise, the mere filing under Art. 264.|
of the notice with the NCMB without a
proof of valid service thereof to the Note: The 3 tests must concur. Non-
other party concerned will not trigger compliance with any of the aforementioned
the running of the cooling-off period. requisites renders the strike illegal.

c. Strike Vote - a requirement wherein Good Faith Strike Doctrine - a strike may be
the decision to declare a strike must considered legal where the union believed that
be: the company committed ULP and the
i. Approved by a MAJORITY of the circumstances warranted such belief in good
, TOTAL UNION MEMBERSHIP iN faith, although subsequently such allegations
the bargaining unit concerned (not of ULP are found out as not true (Bacus v.
of the whole bargaining unit); and
ii. Obtained by SECRET BALLOT in
MEETINGS OR REFERENDA
called for the purpose. lar#ffi$xr###&cur
Purpose: to ensure that the intended
strike is a majority decision.

d. 7-Day Strike Ban - the 7-day waiting


period before the date of the purported
strike (within which the union intending
to conduct a strike must at least
submit a report to the Department as
to the result of the strike vote)
intended to give the Department an
opportunity TO VERIFY whether the 4.E tof
projected strike really carries the its
imprimatur of the majority of the union

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5. Declared in violation of an existing When can the Secretary of Labor Assume
injundion; Jurisdiction over a Strike
As a general rule, injunction cannot be When there exists a labor dispute causing or
issued against the conduct of picketing Iikely to cause a strike or lockout in an industry
except: indispensable to the natibnal interest. The
a. Where picketing is carried out through power of assumption of jurisdiction or
illegalmeans, certification by the Secretary of Labor is in the
b. Where picketing involves the use of nature of a police power measure.
violence and other illegal acts
c. Where injunc{ion becomes necessary The Secretary of Labor may either:
to protect the rights of third parties. 1. Assume jurisdiction and decide it, or
Likewise injunction cannot be issued 2. Certify the same to the NLRC for
compu lsory arbitration.
Note: Strikes or lockouts cannot be
enjoined except when illegal acts are ' Note: A labor dispute may be-assumed by the
committed or if the strike or lockout Secretary or certified to the NLRC even before
appears to be illegal in nature. the actual staging of a strike or a lockout since
Article 263 of the Labor Code does not require
6. Strike in violation of assumption or the existence of the strike but only of a labor
certification order. dispute involving national interest.
7. Contrary to an existing agreement, such
as a no strike clause or conclusive Note: What constitutes'INDISPENSABLE
arbitration clause. INDUSTRY' is based upon the discretion of
the Secretary of Labor. However, the
Note: The rigtlt to strike is not absolute. lt President of the Philippines shall not be
has heretofore been held that a no-strike, precluded from determining industries which in
no-lockout provision in the CBA is a valid his opinion are indispensable to the national
stipulation although the clause may be interest.
invoked by an employer only when the
' strike is economic in nature or one which Effects of the Assumption of Jurisdiction
is conducted to force wage or other of the Secretary
concessions from the employer that are 1. AUTOMATICALLY ENJOINS the inteNded
not mandated to be granted by the law or impending strike or lockout as specified
itself (but not ULP cases). in the assumption or certification order;
2. lf one has already taken place at the time
8. Strike staged by a minority union. of assumption or certification, all striking or
9. Strike staged by a union which is not locked-out employees shall
legitimate IMMEDIATELY RETURN TO WORK; ANd
10. Premature Strike-A strike is illegal if 3. The employer shall immediately resume
staged without giving the employer operations and RE-ADMIT ALL
reasonable time to consider and act on the WORKERS under the same terms and
demands made by the union (Almeda vs. conditions prevailing before the strike or
ctR, 96 Phit 306) lockout. *,*i*srffir;**s*u*.
Conversion Doctrine - lnvolves conversion of
strike from economic to ULP, and vice versa. the eff$b& pF ffi*ffirynption
A strike or lockout may start as an economic
strike or lockout but later on, because of the
actuation of the parties, the same may be
converted to an unfair labor practice (ULP)
strike or loekout, or vice versa. Under this
situation, the conversion doctrine shall apply in
which case the requirements for the converted
strikellockout (to economic from ULP, or vice
versa, as the case maybe) shall be observed.
(See Consolldated Labor Assaciation of the for
Phils. Vs. Marsman and Co., 11 SCRA SA9, in the
5e3) ica's
58, June

117
LABOR LAW
LABOR RELATIONS

3. Secretary of Labor may subsume pending Reason: Because while out on strike, the
labor cases before Labor Arbiters which strikers are not considered to have abandoned
are involved in the dispute and decide their employment, but rather have only ceased
even issues falling under the exclusive from their labor.
and original jtirisdiction of Labor Arbiters
such as the declaration of legality or The declaration of a strike is not a renunciation
illegality of strike {lnt'l Pharmaceuticals v. of em pl oym ent rel ati on.
Sec. of Labor, GR No. 92981-8, 3January
9, 19e2). Exceptions.'
4. Power of Secretary of Labor is plenary and The following strikers are-NOT entitled to
discretionary (Sf. Luke's Medical Center v. reinstatement:
Tones, GR No. 99395, June 29, 1993). 1. Union officerswho knowingly participate in
an illegalstrike; and
EntiUement to Strike Duration Pay 2. Any striker/union member who knowingly
{ participates in the commission of illegal
General Rule: Strikers are not entitled to their acts during the strike.
wages during the period of a strike, EVEN lF
THE STRIKE IS LEGAL. Note: Those union members who joined an
illegalstrike but have not committed any illegal
Reason: No work, no pay, or a fair day's wage act shall be reinstated but without any
for a fair day's labor backwages.

Remedy: A worker who absents himself from Rules in Strikes in HosPitals


work as a
result of a strike, must seek 1. lt shall be the duty of striking employees or
reimbursement of his wages from his union locking-out employer to provide and
which declared the strike, OR he might have maintain an effective SKELETAL
his absence from work charged against his WORKFORCE of medical and oiher health
unused vacation leaves personnel for the duration of the strike or
lockout.
Exceptions: 2. Secretary af Labor may immediately
1. ln case of a ULP STRIKE, in the discretion assu/ne jurisdidion within 24 hours from
of the authority deciding the case (See knowledge of the occurrence of such strike
table for more distinction between or lock-out or certify it to the Commission
Economic and ULP strike.) for compulsory arbitration.
2. Where the strikers VOLUNTARILY AND
UNCONDITIONALLY OFFERED TO ART. 264: PROHIBITED ACTIVITIES
RETURN TO WORK, but the employer
refused to accept the otfer {e.9. "we will Labor Organizations
return tomorrou/' and NOT "willing to NO labor organization br employer shall
retum provided). declare a strike or lockout;
1. Without first having bargained collectively
Note: They are entitled to backwages from in accordance with Title Vll of this Book;
the date the offer was made.

3. Where there is RETURN-TO-WORK


ORDER and the employees are
d i scri mi n ated ag ai nst. H P,SkR+U, {,}F {"-.*\\"r'

Effect They are entitled to baclarvages 9r


from the date of discrimination.

4. Where the employees did not participate in


the strike but were practically locked-out
by the employer.
5. When reinstatement is no ionger possible.

Rule on Reinstatement of Striking Workers


General Rule: Striking employees are entitled Third
to reinstatement, regardless of whether or not impede
the strike was the consequence of the
employeis ULP.

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1. Any peaceful picketing by employees Effect ln case of non-compliance of strikers,


during any labor controversy or in the they may be subject to immediate disciplinary
exercise of the right of self- organization or action, including dismissal or loss of
collective bargaining; or employment status and even to crirninal
2. Shall aid or abet such obstruction or prosecution. (San Juan De Dios Education
interference. Foundation Employees union-AFW vs. San
Juan De Dios Foundation lnc, G.R. NO.
Employers 143A1, Ma 28, 2004). Moreover, the strike
NO employer shall use or employ any becomes illegal because of the disregard of
STRIKE-BREAKER nor shall any person be the return-to-work order issued by the
employed as a strikebreaker. Secretary (Union of Filipro Employees vs.
Nesf/e Phils., G.R. NO. 8871A, Dec 19, 1990)
Public Official or Employee
NO public official or employee, including Rule on Hiring of Replacements
otficers and personnel of the New Armed The hiring of replacements for the strikers
Forces of the Philippines or the lntegrated during a strike is NOT an unfair labor practice
National Police, or armed persons: act of the employer. Such hiring may even be
1. Shall bring in, introduce or escort in any done on a permanent basis in case of an
manner, (a scab or) any individual who economic strike, An employer is entitled to
seeks to replace strikers in entering or carry out his business. But in an unfair labor
leaving the premises of a strike area, or practice strike, such replacements may not be
work in place of the strikers, permanently employed. ln case of defiance of
a return-to-work order, or a certification or
Scab - is an employee who refuses to assumption order, a hearing is not required for
join a strike or a union member who the employer to validly hire replacement for
refuse to strike or who returns to work workers who committed the defiance.
before a strike is ended or settled.
Liability of Persons Committing Prohibited
2. The police force shall keep out of the Acts under Art- 264: Any person violating any
picket lines unless actual violence or other of the provisions of Art.264 shall be punished
criminal acts occur therein: by a fine of not less than P1,000.00 nor more
than P10.000.00 and/or imprisonment for not
PROVIDED, that nothing herein shall be less than 3 months nor more than 3 years or
interpreted to prevent any public officers both at the discretion of the court, lf the person
from taking any measure necessary to: so convicted is a foreigner, he shall be
a. Maintain peace and order, subjected to immediate summary deportation
b. Protect life and property; and/or and will be permanently barred from re-
c. Enforce the law and legal order. entering the country without the special
permission of the President of the Philippines.
Persons Engaged in Picketing lf the act at the same time is a violation of the
NO person engaged in picketing shall: Revised Penal Code, a prosecution under the
1. Commit any act of violence, coercion or Labor Code will preclude prosecution for the
intimidation; or ,or
2. Obstruct the free ingress to or egress from
the employe/s premises for
lawful
purposes; or
3. Obstruct public thoroughfares.

Rule on Defiance of Assumption or


Certification Order or Return-to-Work Order
pursuant thereto issued by the DOLE
Secretary or the NLRC
the
General Rule: Non-compliance with the unlon
assumption or certification order of the offer, iately
Secretary of Labor and Employment, or a return shall
return-to-work order issued pursuant thereto
by the Secretary of Labor or by NLRC, to
which a labor dispute is certified, is considered
an illegal act committed in the course of the Reduced referendum
strike or lockout. conducted by the purpose of

tLg
LABOR LAW
LABOR RELATIONS
determining whether or not the reduced offer
of the union is acceptable to the board of
directors, trusteeS or partners. When at least a
majority of the board of directors or trustees or TITLE ONE. TERMINATION OF
the partners holding the controlling interest in EMPLOYMENT
the partnership, vote to accept the reduced
offer, the workers shall immediately return to ART.279: SECURIry OF TENURE
work and the employer shall thereupon
readmitthem upon signing of the agreement. Security of Tenure - the constitutional right
granted the employee, that the employer shall
not terminate the services of an employee
except for just cause or when authorized by
law. lt extends to regular (permanent) as well
as non-regular (temporary) employment
1. To determine 'l . To determine whether (Kiamco v. NLRC, GR No. 129449, June 29,
whether or not the or not the lmproved r99e)
improved offer of the of fte UNION is
EMPLOYER is acceptable to board, Note: Security of tenure clause is not confined
acceptable to the union and parhers.
members. 2. To ascertain the real to cases of termination of employer-employee
2. To ascertain the real of the silent relationship alone. lt is also intended to shield
sentiment of the silent majority of the union workers from unwarranted and unconsented
majority of the union members on sfike. DEMOTION and TRANSFER.
members on strike.
Reliefs Available to an lllegally Dismissed
Employee
On or before the 30h On or before the 30rn day
day ofthe strike. of the lockout.
1. Reinstatement, and/or
2. Payment of baclorvages.

ART. 266: ARREST AND DETENTION Reinstatement - restoration of the employee


to the state from which he has been unjustly
General Rule: A police officer cannot arrest or removed or separated without loss of seniority
detain a union member for union activities rights and other privileges.
without previous consultations with the
Secretary of Labor. Forms of Reinstatement
1. Actual or Physical Reinstatement - the
Except on grounds of: employee shall be admitted back to work.
1. Nationalsecurity; 2. Payroll Reinstatement - the employee is
2. Public peace; and merely reinstated in the payroll.
3. Commission of a crime.
What ls the Effect of the Reversal of Labor
An arrest can be lawfully made in the Arbiteft Decision to the Reinstated
following cases: Employee?
a. Any person who obstructs the free and lf the ter is later
lawful ingress and egress from the that the
employe/s premises or who obstructs then
public thoroughfares.
b. Any person who shall have in his
na$,*rrb; ffitt 'to requi
possession deadly weapons in
violation of B.P. Blg. 6 and firearms
and explosives (Guidelines for the
canduct of pNp/AFp personnel in
Labor Disputes)

the
the
ts
for
actual need of
refund ( 142732-
33,

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May A Court Order fhe Rernsfatement of a 2. That it would be inimical to the employer's
Dismissed Employee Even lf the Prayer of the interest;
Complaint did Not Include such Reilef? J, Reinstatement may no longer be feasible;
YES. So long as there is a finding that the 4. It will not serve the best interest of the
employee was illegally dismissed, the court parties involved,
can order the reinstatement of an employee
t Company will be Prejudiced bY the
even if the complaint does not include a prayer reinstatement;
for reinstatement, unless, of
course, the o It will not serve a prudent purpose; and
employee has waived his
right to 7 That there is a resultant strained relations
reinstatement. By law, an employee who is
unjustly dismissed is entitled to reinstatement, Note: Under present laws and jurisprudence,
among others. The mere fact that the separation pay may be viewed in four ways:
complaint did not pray for reinstatement will 1. ln lieu of reinstatement in illegal dismissal
not prejudice the employee, because cases, where the employee is ordered
technicalities of law and procedure are reinstated butreinstatement isnot
frowned upon in.labor proceedings (Pheschem feasible,
tndustrial Corp. v. Moldez, GR rVo, 1161158, 2. As employer's statutory obligation in cases
May 9, 2005) of legal termination due to authorized
causes under Arf. 283 and 2M;
lMat happens if is an order of
there 3. As financial assistance, as an act of social
Reinstatement but the position is no longer justice and even in case of legal dismissal
available? under Art.282
4. As employment benefit granted in CBA or
The employee. should be given a company PolicY (Poqu iz, 2006)'
SUBSTANTIALLY EQUIVALENT POSITION.
lf NO substantially equivalent position is Backwages - the relief given to an employee
available, reinstatement should not be ordered to compdnsate him for lost earnings during the
because that would in effect compel the period of his dismissal. lt presupposes illegal
employer to do the 1mpossible. ln such a termination.
situation, the employee should merely be
given SEPARATION PAY consisting of one Note: Entitlement to backwages of the illegally
month salary for every year of service (1'.1|. dismissed employee flows from law. Even if he
(Grolier tnt'l tnc. v. ELA, GR No. 83523, does not ask for it, it may be given' The failure
August 31, 1989) to claim backwages in the complaint for illegal
dismissal is a mere procedural lapse which
Doctrine of Strained Relations cannot defeat a right granted under
When the employer can no longer trust the substantive law. (Sf. Michael's lnstitute v'
4' 2001)
employee and vice-versa, or there were Santos, GR No. 145280, December
imputations of
bad faith to
each other,
reinstatement could not effectively serve as a How Computed
remedy. This doctrine applies only to posrtrons Under existing law, backrrvages is computed
which require trust and confidence. (Globe from the time of the iltegat dismissal up to time
of actual rei' is no
Mackay v. NLRC, GR No. 82511, March 3,
1e92).

Under the cit:cumstances where the


employment relationship has become so
strained to preclude a harmonious working
and that all hoPes at
relationship,
nil afier reinstatement, it
reconciliation are
would be more beneficial to accord the
employee backvrrages and separation pay.

Separation Pay ln Lieu of Reinstatement


Proceeds from an illegal dismissal wherein
reinstatement is ordered but cannot be carried
out as in the following cases.
1. Reinstatement cannot be effected in view
of the long passage of time or because of Trans
the realities of the situation;

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LABOR LAW
LABOR RELATIONS

2. Vacation or service incentive leave and Which Takes Precedence in Conflids Arising
sick leave; and Between Employer" s Management Prerogative
3. 1f, month pay. and the Employees' Right to Secuity of
tenure?
l,lofis Facilities such as uniforms, shoes, The employee's right to secuity of tenure.
helmeF and ponchos should NOT be included Thus, an employer's management prerogative
in the computation of backwages. includes the right to terminate the seMces of
the employee but this management
Reason: said items are given free, to be used prerogative is limited by the Labor Code which
only during official tour of duty not for private provides that the employer can terminate an
or personal use. employee ONLY FOR A JUST CAUSE OR
WHEN AUTHORIZED BY LAW. This limitation
Note: The award of backwages is computed is because no less than the Constitution
on the basis of a 30day month (JAM lrans recognizes and guarantees employee's right to
Co. v. Flores, GR No. L-68555, March 19, security of tenure (Art. 279, Labar Code; Art.
1993). XIll, Sec. 3, Constitution).

ART. 280: REGULAR AND CASUAL


EMPLOYMENT
Restores the employee Allows the same
was unjustly employee to recover from
Four Kinds of Employees under Art. 280
dismissed to the position the employer that which
which he was he had lost by way of 1. Regular employment
removed i.e. to his status wages as a result of his 2. Casualemployment
ante dismissal. dismissal. 3. Project employment
4. Seasonal employment
The award of reinstatement is not inconsistent with
the award of backwages.
Other forms of employment under Book Vl
5. Fixed-Period Employment
6. Probationary

Separation pay b paid Backwages is paid 1. Regular Employment


when reinstatement is no the compensation Employment arrangement where the
longer possible. otherwise the employee:
should have earned
he .not been
a. Has been engaged to
perform
dismissed.
activities which are usually necessary
or desirable in the usual business or
Computed on the basis of Computed from the trade of the employer, or
the employee's leng*r of of illegal dismissal up b. Has rendered at least one ('1) year of
service. actual reinstatement, service, whether such service is
if reinstatement is continuous or broken, with respect to
longer possible, until the activity in which he is employed.
finality of the decision.
Paid as a wherewithal Paid for the loss
assistance during the earnings during the
period that an period between illegal
us looking for dismissal and netwe&.parti dtl Hrtffi ivity
employment. reinstatement.

paid in lieu of baclorages.

Monetary awards to illegally dismissed


OFWs
OFWs are not entitled to reliefs under Art 279 at the
of the Labor Code. This is so because OFWs to the
are contractual empoyees whose rights and ich the
obligations are governed primarily by the
Rules and Regulations of the POEA.

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b. Period of Service fesf-Whether or not 2. The tasks performed by the alleged


the employee has rendered at least project employee are vital, necessary
one year of service. An employee, and indispensable to the usual
who is allowed to work for at least one business or trade of the emploYer.
year, whether the same is continuous
or broken, shall be considered regular o PROJECT has reference to a
employee. particular job or undertaking that may
c. Probationary Employment lesf- or may not be within the regular or
Whether or not he employee is usual business of employer. ln either
allowed to work after the lapse of the case, the project must be distinct,
probationary perlod. An employee who separate and identifiable from the
is allowed to work after the lapse of main business of the employer and its
the probationary period shall be duration must be determined or
considered a regular empoyee. determinable.

Gasual Employment Note: Members of a work Pool from


Employment arrangement where an which a construction company draws
employee is engaged to perform activities its project empoyees, if considered
which are not necessary or desirable in employees of the construction
the usual trade or business of the company while in the work Pool, are
employer. non-project employees or employees
a. The status of regular employment for an indefinite period. lf they are
attaches to the casual employee who employed in a particular project, the
has rendered at least one (1) year of completion of the project or any phase
service, 'whether such seMce is thereof will not mean severance of E-
continuous or broken, with respect to E relationshiP.
the activity in which he is employed
and his employment shall continue UNLESS, the workers in the work Pool
while such activity exists. are free to leave anY time and offer
b. A casual employee is only casual for their services to other employers. (L. L
. one year, and it is the.passage of time Datu & Co., lnc. v. NLRC, GR No.
a
that gives him regular status 113162, February 9, 1996)
(KASAMMA-CCO v. CA, GR No.
159828, April 19, 2006) Note. Project emPloYees are not
regular emPloYees, their services
Purpose:to give meaning to the being needed onlY when there are
of security of
constitutional guarantees projects to be undertaken.
tenure and right to self-organization
(Mercado v. NLRC, GR No. 79869, Requiremen1c: (Policy lnstruction No. 20
September 5, 1991). and D.O. No. 19, Series ot 1997)
a. Specific project phase thereof stated
3. Project Employment in the employment contracl;
Employment has been fixed for a specific b. Esti etion of
project or undertaking, the completion or likewise
termination of which has been determined
at the time of engagement of the E m pl o#bkrdst$kvB S.e e n
employee. of

Where the employment of project


employees is extended long ' after the
supposed project has been finished, the
employees are removed from the scope of
project employees and considered regular
employees.
Em
When may a project employee become Disti
a regular employee?
1. There is continuous rehiring of project ec't or
employees even after the cessation of underta which are
a project for the same tasks or nature specified
oftasks; and engaged for that

L23
LABOR LAW
LABOR RELATIONS

Entitlement to Separation Pay project or undertaking which is usuatly


General Rule: Project employees are NOT necessary or
desirable in the usual
entitled to separation pay if they are business or trade of the employer, the
terminated as a result of the completion of the completion of which has been determined
project or any phase thereof in which they at the time of the engageme* d tt
have been employed. employee.

Exception: if the projects they are working on A flxed-period employee does not becorne
have not yet been completed when their a regular employee because hb
services are terminated; project employees employment is co-terminus with a specific
also enjoy security of tenure during the limited period of time.
time of their employment. (De Ocampo v.
NLRC, GR No. 9A77, June 6, 1990) Reason for validity of fixed-period
employment Freedom of parties to
4. SeasonalEmployment contract so long as the stipulations thereof
Employment arrangement where an are not contrary to law, morals, good
employee is engaged to work during a cudoms, public order and public policy.
particular season on an activity that is
usually necessary or desirable in the usual Note: lt does not necessarily follow that
business or trade of the employer. where the duties of the employee consist
of activities usually necessary or desirable
During off-season, the relationship of in the usual business of the employer, the
employer and employee is not severed; parties are forbidden from agreeing on a
the seasonal employee is merely period of time for the performance of such
considered on leave of absence without activities. There is nothing contradictory
pay. between a definite period of employment
and the nature of the employae's duties.
When are seasonal employees (See Pangilinan vs. General Milling
considered as regular employees? Corporation, G.R. No. 149329, 12 JulY
1. When there is reasonable connection 2m4)
between the particular activity
performed by the employee in relation However, in the following cases, workers
to the usual trade or business of the employed for a fixed-term were considered
employer; and as regular employees:
2. Seasonal workers who are repeatedly a. The employees were allowed to work
engaged to perform the same tasks beyond the fixed-term without the
for more than one season. (See benefit of a new contract (Viernes vs.
Hacienda Fatima ys. National NLRC, G.R. No. 108405, 4 APr 2003);
Federation of Sugarcane Workers- b. The employees werb allowed to work
Food and General Trade G.R. NO. for more than one Year and there is a
.14944, 28 Jan 2003) reasonable connection between the
particular activity performed by the
Note: One-year duration on the job is the usual
pertinent in deciding whether a casual employer
employee has become regular or not, but
it is NOT pertinent to a seasonal or NLRc.ffiR{ W{i@224, 1
project employee. Passage of time does xr il:, j,,,r
il;l i.*"er'vt'q
not make a seasonal worker regular or
permanent (Mercado v. NLRC, GR No. isa
79869, September 5. 1991). the
the
When the business establishment is sold
which effectively terminates the
employment of the seasonal employees,
the latter would be entitled to separation
pay.

5. Temporary or Fixed-Period
Employment
Employment arrangement where an
employee is engaged to work on a specific

L24
Gebs 0oltege d!['^tu
Ser
2OI1 CENTRALIZED BAR OPERATIONS
the parties without any force, duress, or their work must be necessary or desirable
improper pressure being brought to bear in the usual business of the employer, (2)
upon the employee and absent any other they worked for the employer throughout
circumstances vitiating his consent; or the year, their emfloyment not being
2. lt satisfactorily appears that the employer dependent on a specific project or season,
and the employee dealt with each other on and (3) they worked for more than one
more or less equal terms with no moral year,
dominance exercised by the former or the
latter (Brenf Schoo/ v. Zamora, GR No. L- ART. 281: PROBATIONARY EMPLOYMENT
4U94, February 5, 1990).
Probationary Employment
General Rule: Fixed-Period Employment is Exists where the employee, upon his
valid so long as the criteria abovementioned engagement is made to undergo a trial period
are complied with. during which the emptoyer determines his
fitness to qualify for regular employment based
Exception: While the Supreme Court has on reasonable standards made known to him
upheld the legality of fixed-term employment, at the time of his engagement.
where from the circumstances it is apparent
that the periods have been imposed to Note: ln all cases probationary employment,
preclude acquisition of security of tenure by the employer shall make knoarn to the
the employee, they should be struck down or employee the standards under which he will
disregarded as contrary to public poiicy. (See qualify as a regular employee at the time of his
Manila Water Co. lnc. vs. Pena, G.R. No. engagement. Where no standards are made
158255, 8 July 2004: Magsalin vs. National known to the employee at that time, he should
Organization of- Working Men, G.R. No. be regarded as a regular employee.
14U92, I May 2043)
Characteristics of ProbationarY
Special Groups of Employees Employment
1. OFWs and Seafarers cannot be L lt is an employment for a trial period;
considered as regular employees. Their 2. lt is a temporary employment status prior
employment is governed by the contracts to regular employment;
they sign every time they are rehired and 3. lt arises through a contract with the
their employment is terminated when the following elements:
contract expires. Their employment is a. The employee must learn and work at
fixed for a certain period of time a particular type of work;
For a private school teacher to acquire b. Such work calls for a certain
permanent status in employment, the qualifications;
following requisites must concur: (1) the c. The probation is fixed
teacher is a full-time teacher; (2) the d. The employer reseryes the power to
teacher must have rendered three terminate during or at the end of the
consecutive years of service; and (3) such trial period; and
service must have been satisfactory. e. lf the employee has learned the job to
(Spouses A/wyn Ong Lim and Evelyn ,he
Lukang Lim Vs. Legazpi Hope Christian
School, et al., G.R. No. 172818, March 31,
2009.)
The employment of househelpers is the
only kind in the Labor Cade where a fixed
term is XPRFSSLY PROVIDED FOR.
Under Arf. 142 of the Labor Code, the
original contract for domestic service shall
not last more than 2 years, renewable for
such periods as may be agreed upon by 1.
the parties and subject to review every 3
years with the end in view of improving the 2.
terms and conditions thereof.
Piece-rate workers may attain regularity of 3.W by
employment. Payment by the piece is just
a method of compensation and does not 4. When nature
define the essence of compensation. For of the
piece rate workers to be regularized: (1)

1?q
LABOR LAW
LABOR RELATIONS

Example: The probationary period set for exercised in accordance with the speclflc
professors, instructors and teachers is ffiree requirements of the contract;
(3) consecutive years of satisfacfory service 2. lf a particular flrne is prescribed, the
pursuant to DOLE Manual of Regulations for termination must be within such time and if
Private Schools. formal nofice is required, then that form
must be used,
Extension of Probation 3. The ernployer's dissafisfaction must be
The employer and employee may extend by real and in good faith, not feigned so as to
agreement the probationary period of circumvent the contract or the lar,lt and
employment beyond six (6) months. 4. There must be no unlawful discrimination
in the dismissal.
Note: By voluntarily agreeing to such an
extension, the employee waived any benefit Regular Status after Probationary Period
attaching to the completion of the period if he lf the probationary employee is allowed to
still failed to make the grade during the period work beyond the period of 6 months or the
of extension (Mariwasa Mfg., lnc. v. Hon. agreed probationary period, said employee
Leogardo, GR No. 74246, January 26, 1589). becomes a regular employee by operation of
law.
Double ot Successive Probation NOT
Allowed ART.282: TERMINATION BY EMPLOYER
The evil sought to be prevented is to
discourage scheming employers from using Guidelines to Determine the Validity of
the system al double or suoessive probation Termination:
to circumvent the mandate of the law on 1. Gravity of the offense;
regularization and make it easier for them to 2. Position occupied by the employee;
dismiss their employees (Holiday lnn Manila v. 3. Degree of damage to the emPloYer;
NLRC, GRNo. 109114, September 14,1993). 4. Previous infractions of the same offense;
and
Termination of Probatlonary Employment 5. Length of service.
Probationary employees are protected by the Totality of lnfractions Doctrine
SECURITY OF TENURE provision of the It is the totality, not the compartmentalization
Constitrition. of company infractions that the employee had
consistently committed, which justifies the
HOWEVER, a probationary employee may be penalty of dismissal (e.g- number of violations
terminated at any time before the expiration of committed during the period of employment).
the probationary period on fwo (2) grounds: (Manila Electic Company v. NLRC, GR No.
1. Just cause; and 1 1 41 29, October 24, 1 996)

2. Failure to meet the standards. for


qualifications for a regular employment. Just Gauses
1. Serious Misconduct
Note: The probationary employee is entitled to MISCONDUCT has been defined as the
PROCEDURAL DUE PROCESS prior to transgression of some established and
dismissal from the service.

The power of the employer to terminate


probationary employees is subject to the
following limitations: First, this power must be
exercised in accordance with the specific
requirements of the contract. Second, the
dissatisfaction on the part of the employer
must be real and in good faith, not feigned so
as to circumvent the contract or the law. Third,
there must be no unlaMul discrimination in the
dismissal. (Davao Contractors Development
Cooperative (DACODECO) vs. Marilyn
A. Pasawa, G.R. No. 172174, July 9,2@9)

Limitations to Termination of Probation


1. The employer's power to terminate a
probationary employment contract must be

L26
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2011 CENTRALIZED BAR OPERATIONS

Examples: NLRC, GR No. 110388,


a. Sexual harassment September 14, 1995)
b. Fighting within companit premises
c. Uttering obscene, insulting or Note: The filing of the complaint for
offensive words against a superior illegal dismissal (with a prayer for
d. Falsification of time iecords reinstatement) is inconsistent with the
e. Gross immorality charge of abandonment (Kams lnt'|,
Inc. v. NIRC, GR No. 128W6,
2. Willful Disobedience or lnsubordination September 28, 1999).
Requisites
a. The employee's assailed conduct has HOWEVER, the rule has no
been willful orintentional, the application where the complainant
wilffulness being characterized by a does not pray for reinstatement and
"wrongful and peruerse attitude"; and asks for separation pay instead. (Jo,
b. The order violated must have been: et. al v. NLRC, GR No. 121605,
i. Reasonable and laMul; February 2, 2000)
ii. Made known to the employee;
and 4. Fraud or Willful Breach of Trust
iii. ln connection to the duties
which he had been engaged to Fraud or dolo - consists in the conscious
discharge (Acesite Corporation, and intentional proposition to evade the
et. al v. NLRC, GR No. 152308, normal fulfillment of an obligation.
January 26, 2N5). Commission of fraud by an emploYee
against the employer will necessarily result
Note: There is no law that compels an in the latteis lost of trust and confidence in
employee to accept a promotion for the the former.
reason that a promotion is in the nature of
a gift or reward, which a person has the Requisites for Fraud:
right to refuse. Hence, the exercise by the a. Fraud must be committed AGAINST
employee of the right to refuse a the employer or his representative;
promotion cannot be considered in law as and
insubordination, or willful disobedience of b. lN CONNECTION with the employee's
a laMul order of the employet {PT&T work (Depaftment of Labor Manual,
Corp. v. CA, September 29, 2003). Sec. 4353.01[3]).

3- Gross and Habitual Neglect of Duties Examples


ln order to constitute a just cause for the 1. falsification of time cards
employee's dismissal, the neglect of duties 2. theft of company property
MUST NOT ONLY BE GROSS BUT ALSO 3. unauthorized use of vehicle
HABITUAL.
r Gross nqlect means an absence of Willful Breach of Trust - Breach of trust
that diligence that an
ordinarily or confidence must be willful. A breach is
prudent man would use in his own
affairs (Department of Labor Manual,
Sec. 4343.01[27]).
c Habitual nqlect implies repeated
failure to perform one's duties over a
period of time, depending upon the
circumstances (JGB and Associafes, of
lnc. v. NLRC, GR No. 10939, March 7,
1ee6). be
of
Forms of Nqlect of Duty
a. Habitual tardiness and absenteeism;
b. Abandonrnent
i. Failure to report for work or
absence without valid or justifiable
reason;
ii. Clear intention to sever Er-Ee
relationship being manifested by
some overt acts. (Labor et., al, v.

L27
UIBOR IAW
LABOR RELATIONS

d. Must be genuine, not a mere just cause for terminating his employment
. afterthought to jtistify earlier action (Manila Chauffer's League v. Bachrach Motor
Co., 40 A.G. 159\.
taken in bad faith; and
e. The employee involved holds a
position oftrust and confidence. Due Process to be observed by the
employer
NoE: Generally, employers are allowed The following standards of due process shall
wider latitude of discretion in terminating be substantially observed for termination of
the employment of managerial personnel employment based on just causes:
or those who, while not of similar rank
perform functions which by their nature 1. Notice (Twin Notice Rule) - the emfloyer
require the employer's full trust and is required to furnish an employee wfio s
confidence. (Coca-Cola Bottlers v. NLRC, to be dismissed with two (2) writen
GR No. 825ffi, April25, 1989) notices before such termination:
a. Pre-Notice - a wriften notice served
5. Commission of a Crime or Offense on the employee specifying the
Refers to an offense by the employee ground or grounds for termination, and
against the person of his employer or any giving to said employee reasonable
immediate member of his family or his duly opportunity within which to explain his
authorized 'representative and thus, the side;
conviction of a crime involving moral b. Post-Notice - a written notice of
turpitude is not analogous thereto as the termination served on the employee
element of relation to his work or to his indicating that upon due consideration
employer is lacking. of all the circumstances, grounds have
been established to justify his
Note: The CONVICTION of an employee termination. (which comes only after
in a criminal case is NOT necessary to the employee is given reasonable
warrant his dismissal by his employer. period from receipt of the first notice to
answer the charge, see requirement 2
6. Analogous Causes below) (Pepsi-Cola v. NLRC, GR No.
Must be due to the voluntary and/or wilfful 90964, February 10, 1992)
act or omission of the employee (Nadura
v. Benguet Consolidated, GR No. L- 2. Hearing or Conference - a hearing or
17780, August 24, 1962). conference should be held during which
the employee concerned, with the
Examples assistance of counsel, if the employee so
a. Violation of company rules and desires, is given the opportunity to
regulations respond to the charge, present his
b. Drunkenness evidence or rebut the evidence presented
c. Gross inefficiency against him (Lavador v. "J" Marketing
d. . lllegally diverting employer's products Corparation and Soyao, GR No. 157757,
June 28, 204Q.
Other JustCauses Recognized under Other
provisions of the Labor Code
1. Union officers who knowingly participate in
an illegal str.ike.
2. Any employee, union officer or mere
member who knowingly participates in the
commission of illegal acts during a strike.
3. Strikers who violate orders, prohibitions
and/or injunctions as are issued by the
Secretary of Labor and Employment or the
NLRC.
4. Violation of union security clause
stipulated in the CBA pursuant to Arf
248[e]. rs
a
Doctrine of lncompatibi lity as
Where the employee has done something that considered
is contrary or incompatible with the faithful
performance of his duties, his employer has a

128
Sutt Febs Cullege of Asb
2011 CENTRALIZED BAR OPERATIONS
lnc. v. NLRC, GR No. 89876, November 13, 1. However, when there is a company policy
1e92). or a CBA provision mandating payment of
wages during said 30-days preventive
Note: ln Agabon v. NLRC, GR No. 158693, suspension, such payment shall be made.
Nov. 17, 2004, when dismissal is for just or 2. Preventive suspension should not last for
authorized cause but due process was not more than thirty (30) days. The employee
observed, the dismissal should be upheld. should be made to resume his work after
However, the employer sho0ld be held liable 30 days.
for non-compliance with the procedural 3. However, the same can be extended
requirements of due process (i.e. damages). provided the employer pays the
The above ruling was modified by JAKA Food suspended employee his wages and other
Processing v. Pacd,, GR No. 151378, March benefits.
28, 2005:
1. lf based on a just cause (Art. 282) but the Note: After the lapse of the 3Gday period, the
employer failed to comply with the notice employer is required to reinstate the
requirement, the sanction to be imposed employee. lf the employer decides to extend
upon him should be tempered because the the period of preventive suspensions for
dismissal process was, in effect, initiated justifiable reasons, he is obligated to pay the
by an act imputable to the employee; and wages and other benefits due to the
2. lf based on an authorized cause (Art. 283) suspended worker.
but the employer failed to comply with the
notice requirement, the sanction should be Offers to reinstate the worker made.after the
stlrTer because the dismissal process was filing of a complaint for illegal dismissal could
initiated by the employer's exercise of his not validate an otherwise arbitrary dismissal.
managemerfi prerogative.
Requirements for Termi nation :
The ruling in the JAKA case was also modified 1. Substantive Due Process-The employer
in lndustrial Timber Corp., et. al. vs. Ababan, shall not terminate the services of an
et. al., GR No. 164518, March 30. 2006. This employee except for a just cause (Art 282)
case subdivided the di3missal for authorized or when authorized by law (Arts. 283 and
causes into 1) due to losses and 2) not due to 284). When there is no showing of a clear,
losses. lf the authorized cause that terminates valid and legal cause for the terminatiOn of
employment arises from losses, the penalty to employment, the law considers the case a
the employer who disregarded due process matter of illegal dismissal.
may be lighterthan if the authorized cause has 2. Procedural Due Process
no relation to losses. a. For termination based on just causes
under Art. 282, procedural due
The Court also mentioned other factors to process means compliance with the
consider ln assessrng the penalty to the following:
employer such as: i. A written notice (first notice)
1. The authorized cause invoked, whether served on the employee
retrenchment or cessation of operation specifying the ground for
due to serious business losses;
2. The number of employees to be awarded;
3. The financial capacity of the employer;
4. The employer's grant of other termination
benefits; and
5. Whether there was a bona flde attempt to
comply with the notice requirement as of
opposed to giving no notice at all. so
'to
Preventive Suspension his
An employee may be placed under preventive
suspension, if his continued employment
poses a serious and imminent threat to life or
property of the employer or his co-workers. lt the
shall be for a maximum period of 30 days, due
during which period the employee placed the
under preventive suspension is not entitled to have
any wages. justify his

L29
LABOR LAW
LABOR RELATIONS

b. For termination based on authorized (Belated Due Proess Rule utrc l,fitrpli
cause under Afts 283 and 2U, Doctine).
compliance with procedural due
process which means service of a (See Note under Degree of Proof)
written notice to the employee AND
the appropriate Regional Office of the 5. Termination for non-existent cause
DOLE at least 30 days before the ttlegal, The employee who was dismissed
effectivity of the termination, based on a non-existent cause should be
specifying the ground or grounds for reinstated to his former position, or if not
termination. possible, to a substantially equivalent
c. For termination based on completion position.
of contract or phase thereof- No prior
notice is required Termination without a caus+lt is the
d. For termination of
probationary intention of the employer to dismiss his
employment based on failure to meet employee for a cause whatsoever, only
the standards of employment-written that there was really no cause, hence, the
notice must beserved to
the dismrssal is illegal.
employee concerned within a
reasonable time from the effective Termination for a non-exisfenf cause-The
date of the termination. employer does not intend to dismiss the
employee but the dismissal was effected
lnstances when hearing is not required: nonetheless for a specific cause which
a. Admission of guilt by employee turns out to be non-existent.
b. Termination due to authorized caruses
under Art 283 6. Cases when there is no evidence of
c. Termination due to disease under Art. 284 dismissal (e.9. when employer did not
d. Resignation by the employee dismiss his employees, and the latter did
e. Termination after 6 months of bona-fide not abandon their employment). Remedy
suspension of operation is reinstatement but without backwages
f. Termination due to expiration of flxed- (See Asia FanQ Plywood Corp. vs. NLRC,
period"employment. G.R. No. 11309,20Jan 1999)
g. Termination of casual employment
h. Termination due to completion of project in Suspension of Effects of Termination
project employment. The Secretary of Labor may suspend the
i. Termination due to lapse of season in effects of the termination pending resolution of
case of seasonal employment. the case in the event ot a prima facie finding
j. Termination due to expiration of period of by the appropriate official of the Department of
probationary employment Labor and Employment before whom the
k. Termination due to expiration of tenure dispute is pending that
made coterminous with lease 1. The termination may cause a serious labor
l. Termination due to expiration of dispute.
contractual employment. 2. The termination is in implementation of a
m. Termination due abandonment mass the Labor
n. Termination due to closure or stoppage of Code
work by government authorities.

Six Situations in Termination Disputes


1. The dismissal is for a just cause under Art.
282, for an authorized cause under Art
283 o1 for heafth reason under Art 284,
and due process was observed- Legal.
2. The dismissal is without just or authorized
cause but due process was observed -
lllegal.
3. The dismissal is without just or authorized
cause and there was no due process -
lllegal.
4. The dismissal is for a just or authorized
cause but due process was not observed
- Legal but employer is liable to pay
indemnity in the form of nominal damages

130
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2011 CENTRALIZED BAR OPERATIONS
precluded from adopting a new policy real, or if only exPected, are
conducive to a more economical and reasonably imminent as Perceived
effective management, and the law does objectively and in good faith by the
not require that the employer should be employer;
suffering financial losses before he can 2. The employer served WRITTEN
terminate the services of the employee on NOTICE both to the employees and to
the ground of redundancy (Dole the DOLE at least one (1) month prior
Philippines, lnc., et. alv. NLRC, et. al). the intended date of retrenchment;
3. The employer pays the retrenched
3. Retrenchment (Downsizing) employees SEPARATION PAY
a. reduction of personnel usually due to equivalent to one month pay or at
poor financial returns so as to cut least one-half month pay for every
down on costs of operations in terms year of service;
of salaries and wages to prevent 4. The employer exercises its
bankruptcy of the company; prerogative to retrench employees lN
b. linked with losses; it is a cost-cutting GOOD FAITH for the advancement of
measure made immediately necessary its interest and not to defeat or
by business reduction or reverses. circumvent the employees' right to
security of tenure; and
Note: The phrase "TO PREVENT 5. The employer used FAIR 'AND
LOSSES' means that retrenchment or REASONABLE CRITERIA in
termination from the service of some ascertaining who would be dismissed
employees is authorized to be undertaken and who would be retained among the
by the employer sometime before the employees, such as status, efficiency,
losses anticipated are actually sustained seniority, physical fitness, age and
or realized. Evidently, actual losses need financial hardship for certain workers
not set in prior to retrenchmenl (Cajucom (Asian Alcohol Corp. v. NLRC, GR No.
VIlv. TPI Philippines Cement Corporation, ' 131108 March 25, 1999).
et. al, GR No. .149@0, February 11,
2005). Note: The employer bears the burden to
piove such ground with clear and
There is NO need for investigation and satisfactory evidence, failing which the
hearing before an employee may be dismissal on such ground is unjustified.
dismissed due to retrenchment or (Bio Quesf Marketing lnc. and/or Jose L.
redundancy. The employee can however Co vs. Edmund Rey, G.R. No. 181503,
controvert the grounds for termination September 18, 2009.)
before the DOLE.
"Last ln, First Out" Rule (LIFO)
General Standards of Retrenchment It applies to termination of employment in the
(srNS) same line of work. What is contemplated in the
1. The losses expected are substantial LIFO rule is that when there are two or more
and not merely de minimis in extent; employees occupying the same position in the
2. The apprehended substantial loss are company
reasonably lmminent, can be
perceived objectively and in good faith
by the employer;
3. Retrenchment must be reasonably #effi x-,,rrfv
necessary to prevent the expected
losses; and
4. Expected or actual losses must be
proved by sufficient and convincing
evidence (Central Azucarrera dela
Carlata v. NLRC, GR No. 100092,
December 29, 1995).

Requirements for Valid Retrenchment


1. Retrenchment is REASONABLY to
NECESSARY and likely to prevent deter
business losses, which, if already enjoy a
incurred, are not merely de minimis,
but substantial, serious, actual and

131.
LABOR LAW
LABOR RELATIONS

Hobson's Choice - Means no choice at all; a c. Where closure was due to an act of
choice between accepting what is offered or the government, the workers are not
having nothing at all. For example, in Asufrin, entitled to separation pay (National
Jr. vs. San Miguel Corporation, (G.R. No. Federation of Labor v. NLRC, GR No.
156658, 10 March 2004), the employees were 127718, March 2, 2000).
given the choice either to voluntarily retire, be
retrenched with benefits or be dismissed Note: Article 283 includes both the
without receiving any benefit at all. complete cessation of all
business
operation of an establishment and the
Retrenchment vs. cessation of only part of a company's
business (Cheniver Deco Print Technics
Corp. v. NLRC, GR No. 122876, February
purposes 17,2ffi0).
economy a
company
decides to reorganize its
departrnents by imposing
on employees of
one
department the duties
performed by
the Does nst
Employer reduces the employees of the other require
number of its personnel departnent, thus proof of
in order to
prevent
rendering unnecessary actual or
turther losses in
his
the job of the latter, the imminent
business operations.
seMces of the loss
employees whose
functions are now being
performed by the former, 5. Disease
may be validly
terminated on the ground Regur.sifes:
of REDUNDANCY. a. The employee is suffering from a
disease
4. Closure or Cessation of Operation of b. His continued employment is either
the Establishment or Undertaking prohibited by law, prejudicial to his
health or prejudicial to the health of his
Reguisifes co-employees.
a. The decision to close or cease c, There is a certification by a competent
operations should be made in good public health authority that the disease
faith. is of such nature or at such stage that it
b. The purpose should not be to cannot be cured within a period of six
circumvent the provision ol Title I months even with proper medical
Book Six of the Labor Code (Rules on treatment.
Termi n at i on of Em p I oyment d. Notice of termination based on this
c:' There is no other option available to ground should be served to the
the employer except to close or cease employee concerned and the
operations.
d. The notice requirement under Aft. 283
should be complied with.
e. Separation pay under the law (when
not due to serious business losses) or
company policy or CBA or similar
contract, when appropriate must be
paid to the affected employees.

Rules.'
a. Where closure is due to serious
business losses, no separation pay is
required; {Notth Davao Mining Corp.
v. NLRC, GR No. 112546, March 13,
1996)
b. Where closure is NOT due to serious
business losses, workers are entitled
to separation pay; must be

t32
Ssa Felu @ollege of Arb
2011 CENTRALIZED BAR OPERATIONS
The requirement for a medical certificate When termination is brought about by the
under article 284 of the labor code cannot completion of the contract or phase
be dispensed with; otherwise, it
would thereol no prior notice is required.
sanction the unilateral and arbitrary
determination by the employer of the 3. Payment of separation pay.
gravity or extent of the employee's illness
and thus defeat the public policy in the Rules on P
protection of labor (Sy, et. al v. CA, GR
No. 142293, February 27,2003).

Note: Discrimination ih any form from pre- Equivalent to at least one


employment to post-employment, including
month pay or at least one
month pay for every year of
hiring, promotion or assignment, based on service, whichevbr is higher, a
the actual, perceived or suspected HIV fraction of six (6) months is
status of an individual is
prohibited. considered as one (1) whole
Termination from work on the sole basis of year
actual, perceived or suspected HIV status Equivalent to one month pay
is deemed unlawful (Sec. 35, R.A. 8504, or at least one-half month pay
Htv/AtDs LAW. for every year of service,
whichever is higher, a fraction
Other Authorized Causes: of six (6) months is considered
1. Total and permanent disability of as one (1) whole year
employee;
2. Valid application of union'security clause; Equivalent to one month pay
3. Expiration 'of period in term of or at least one-half month pay
for every year of seMce,
employment; ,
whichever b higher, a fraction
4. Completion of project in project of six (6) months is considered
employment; as one (1)whole year.
5. Failure in probation; lf due to severe business
6. Relocation of business to a distant place; losses or financial reverses,
7. Defiance of return-to-work order; no separation pay due (North
8. Commission of illegal acts in a strike; Davao Mining & Development
9. Violaiion of contractual commitment; and Corporation v. NLRC, 254
10. Retirement scw721).
Equivalent to at least one-
Totality of lnfractions Doctrine month salary or to % month
Where the employee has been found to have salary for every year of
repeatedly incurred several suspensions or service, whbhever is greater,
warnings on account of violations of company a fraction of at least 6 months
rules and regulations, the law warrants their shall be considered one (1)
whole year
dismissal as it is akin to "habitual delinquency"
(Villeno v. NLRC, 251 SCRA 494).

Procedural Steps Required


1. Written notice to DOLE 30 days prior to
the intended date of termination;

Purpose: to enable it to ascertain the


verity of the cause of termination

2. Written notice to employee concerned 30


days prior to the intended date of
termination;

Note: When termination of employment is


brought by the failure of an employee to
meet the standards of the employer in
case of probationary employment, it shall
be sufficient that a Written notice is served
the employee within a reasonable time
from thd effective date of termination.

133
LABORLAW
LABOR RELATIONS

Dismissal for Just Cause vs. Termination The employee must serve a written notice on
for Authorized Cause the employer at least one (1) month in
advance.

Once accepted, cannot be withdrawn without


The employee is The employee is the conseht of the employer (lntertrod
dismissed for causes dismissed for causes Maitime, lnc. v. NLRC, GR No. 81087, June
which are attributable to independent of his fault 19, 1e91).
his fautt or culpability. or culpability.
An employee who voluntaily resigns is not
Asarule,adismissed An employee terminated
for authorized cause is entitled to separation pay unless stipulated in
employee is not entitled an employment contract or CBA or sanctioned
entitled to separation
to separation pay. pay. by established employer practice or policy
(tbid )
Employer must give the
Before an employee is
dismissed for just cause,
employee to be Note: lf resignation is not voluntary, the same
terminated a written
he must be given ample notice at least 1 month can be deemed to be a constructive dismissal.
opportunity to be heard
before the intended day
and to defend himself.
of termination. Voluntary resignation and illegal dismissal are
adversely opposed modes of terminating
ART.285: TERMINATION BY EMPLOYEE employment relations, in that the presence of
1. Without Just Cause - by serving a one precludes that of the other (Alfaro v. CA,
WRITTEN NOTTCE on the employer at ibid).
least one month in advance. The employer
upon whom no such notice was served lntention to Resign
may hold the employee liable for An employee may be deemed to have
damages. resigned from his position, and such
"resignation" may be accepted and made
2. With Just Cause - An employee may put effective by the management, although the
an end to his employment WITHOUT employee did not mention the word 'resign"
SERVING ANY NOTICE on the employer and/ or "resignation'. This happened to the
for any of the following just causes: chief investigative reporter of the Philippine
(sucA) Star. He sent a 'Memorandum for File' to the
a. Serious lnsult by the employer or his Chairman-CEO expressing his frustrations
representative on the honor and and disappointments in the office. (Philippines
person of the employee; Today lnc., d al v. NLRC, G.R. No. 112965,
b. lnhuman and gnbearable Treatment January 3e, 1997)
accorded the- employee theby
employer or his representative; Constructive Dismissal
c. Commission of a Crime Or Offense by Defined as quitting because continued
. the employer or his representative employment is rendered impossible,
against the person of the employee or unreasonable or unlikely, as an offer involving
any of the immedrate members of his
family; and
d. Other causes gnalogous to any of the
foregoing.

Dismissal - Termination of employment by


the employer

Resignation - Termination of employment by


the employee.

Voluntary Resignation
Defined as the act of an employee, who finds
himself in a situation in which he believes that
personal reasons cannot be sacrificed in favor
of the exigency of the service; thus, he has no
other choice but to disassociate himself from ts to
his employment (Alfaro v. CA, GR No. 140812,
August 28, 2001).

134
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2011 CENTRATIZED BAR OPERATIONS
lnc. v. Catinoy, GR No. 143204, June 26, TITLE TWO. RETIREMENT FROM THE
2001.) SERVICE

Temporary Lay-Off ART.287: RETIREMENT


There is no specific provision of lar which
treats of a temporary retrenchment or lay-off Concept of Retirement
and provides for the requisites in effecting it or It is the result of a bilateral act of the parties, a
a period of duration therefore. These voluntary agreement between the employer
employees cannot however be forever and the employees whereby the latter, after
"temporarily" laid-otf. reaching a certain age, agrees andlor
consents to sever his employment with the
To remedy this situation, Article 286 may be former (Brion v. SPUM of the Seventh Day
applied but only by analogy to set a speciflc Adventist Church, GR No. 135136, May 19,
period that employees may remain temporarily 19e9).
laid-off or in a floating status (while business
operations are suspended) for only a period of Coverage ot Art.287
six months. Applies to all employees in the private sector,
regardless of their position designation status
ART. 286: WHEN EMPLOYMENT NOT and irrespective of the method by which their
DEEMED TERMINATED wages are paid, except those specifically
exempted.
When Employment NOT Terminated:
1. Bona fide suspension of the operation of a HOWEVER, Att. 287 does not appty to,:
business or undertaking for a period nof 1. Employees of the National Government,
exceeding six'(6) months; or and its political subdivisions, including
2. Fulflllment by the employee of a military or GOCC's if they are covered bY Civil
civic duty. Service Laws;
2. Employees of retail, service and agricultural
Floating Status establishments or operations regularly
The "floating status" of an employee should employing not more than 10 employees.
last only for a legally prescribed period of time.
When the floating status of an employee /asfs Kinds of Retirement Schemes:
far more than six months, he may be 1. compulsory and contributory in nature;
considered to have been constructively 2. one set up by agreement between the
dlsmlssed from service. Thus, he is entitled to employer and the employees in CBA or
the corresponding benefits for separation other agreements between them (other
(Agro Commercial Securify Serubes Agency, applicable employment contract);
lnc. v. NLRC, GR Nos. 82823-24, July 31, 3. one that is voluntarily given by the
1989). employer, expressly as in an announced
company policy or impliedly as in failure to
Notice Required contest the employee's claim for
Serious business losses do not excuse the retirement benefits (Marilyn Odchimar
employer from complying with the clearance or Gerlach v s., GR No.
report required under Article 283 of the Labor 1

Code and its implementing rules before


terminating the employment of its workers. ln A9ffi;,*,,,fth#Hffi# reti
the absence of justifying circumstances, the *irfFPtr e*Ftl::ff
failure of the employer to observe the
procedural requirements set out under Afticle
284, taints their actuations with bad faith. lf the
lay-off was temporary but then serious
business losses prevented the reinstatement
of respondents, the employer should have
complied with the requirements of written
notice.

to
whose
they

13s
LABOR LAW
LABOR RELATIONS

have at least served for a period of 5 years Difference between Voluntary and
(Att. 287 as amended by R.A. 8558). lnvol untary Retirement
. Voluntary retirement cuts employment ties
Compulsory Retirement Age Below 60 leaving no residual employer liability.
Allowed r lnvoluntary retirement amounts to a
Att. 287 permits employer and employee to fix discharge, rendering the employer liable
the applicable retirement age at below 60 for termination without cause. The
years. The same is legal and enforceable so employee's intent is the focal point of
long as the parties agree to be governed by analysis.
such CBA (Pantranco North Express v. NLRC, o ln determining such intent, the fairness of
GR No. 95940, July 24, 1996). the process governing the retirement
decision, the payment of stipulated
Extension of Service of Retiree benefits, and the absence of badges of
Upon the compulsory retirement of an intimidation or coercion are relevant
employee or official in the public or private parameters (Arsenio F. Quevedo, et.al vs.
service, his employment is deemed Benguet Electic Cooperative
terminated. The matter of extension of service lncorporated, et.al, G.R. No. 168927,
of such employee or official is addressed to September 11,2Ng).
the sound discretion of the employer (USf
Facufty. Union v. NLRC, Gff No. 89885,
August 6, 1990)

Benefits
A retiree is entitled to a retirement pay TITLE ONE. PENAL PROVISIONS AND
equivalent to at /easf % month salary for every LIABILITIES
year of serwce, a fraction of at least six (6)
months being considered as one whole year. ART.288: PENALTIES
Unless the parties . provide for
broader Violations of the Labor Code that are declared
inclusions, the term "ONE HALF (1/2) MONTH to be unlaMul or penal in nature shall be
SALARY" shall mean: punished accordingly:
o 15 days plus 1t12 at the 13b month pay; 1. Article L A fine of not less than P 1,000 nor
and more than P 10,000
e the cash equivalent of NOT more than 5 2. Article ll lmprisonment of not less than 3
days of service incentive leaves. (22.5 months nor more than 3 years; or
days per year of service) 3. Article lll.
Both such fine and
imprisonment at the discretion of the court.
Under Section 26, R.A. No. 467Q otherwise
KNown as the MAGNA CARTA FOR PUBLIC ln addition to such penalty, any alien found
SCHOOL TEACHERS, public school teachers guilty thereof shall be summarily deported
having. fulfilled the
age and service upon completion of service of sentence.
requirements of the applicable retirement laws
shall be given ONE RANGE SALARY RATSE Criminal are also
UPON RETIREMENT, which shatt be the
basis of the computation of the lump sum of
the retirement pay and the monthly benefit wg*5i,f,;Aft#{fui*nale
thereafter
"a)frffi*.*r}aa}l
Note: Exempted from the payment of
retirement pay are: Ai
1. Retail, seryice and agricultural
establishments or business operations
employing NOT more than ten (10)
employees or workers;
2. Government employees; and
3. Domestic helpers and those in the
personal service of another.

See RA 7641 (Retirement Pay Law).

r|6
$an @e!u 6olle[t of I.et!
2011 CENTRALIZED BAR OPERATIONS

TITLE TWO. PRESCRIPTION OF


OFFENSES AND CLAIMS

ART. 291: MONEY CLAIMS

Periods of Prescription

3 years trom the accrual of


the causes of action

1 year from the accrual of the


cause of action

4 years fom the accrual of


the cause of action

Note: The period of prescription mentioned


under Afticle 292 of the Labar Code refers to
and is LIMITED TO MONEY CLAIMS, all other
cases of injury to rights of a working man
being governed by the Civil Code. Hence
REINSTATEMENT prescribes in 4 years.

Venue: The Regional Arbitration Branch


where the workplace is located (NLRC Rules
of Procedure).

137
138
LABOR LAW
LABOR RELATIONS
Tables of Jurisdiction

Exclusive and Original Decisions of Labor


abuse of discretion; Arbiters are appealable to
1, ULP; lf the decision, order or the NLRC within 10
2. TerminationdisPutes; anrard was secured through calendar days from receiPt
3. lf accompanied with a claim for reinstatement, those that workers flle involving wages, fraud or coercion, including of the decision.
rates of pay, hours of work and other terms and conditions of employment;
graft and conuption;
4. Claims for aclual, moral, exemplary and other forms of damages arising from Er-Ee lf made purely on questions
relations;
5. Cases arising from any violation af M. 264, including questions involving the legality of of law; and Reconsideration is

strikes and lockouts; allowed, but if the MR has


6. Except claims for EC, Social Security, Philhealth and maternity benefits, all other claims lf serious errors in the all the requisites of an
findings of facts are raised appeal, the same shall be
arising from Er-Ee relations, including those of persons in domestic or household service,
involving an amount exceeding P 5,000 regardless of whether accompanied with a claim which would cause grave or treated as an aPPeal.
for reinstatement; irreparable damage or injury
7. Monetary claims of oversec contract workers arising from Er-Ee relations under Migrant to the appellant.
Workers Act of 1995;
8. Wage distortion disputes in unorganized establishments not voluntarily settled by tre
parties pursuant to RA 6727;
L Enforcement of compromise agreements when there is non-compliance by any of the
parties pursuant to Article 227 ol Ihe Labor Code, as amended; and
10. Other cases a$ may be provided by law.

ConcurrentWith NLRC
1. Contempt cmes ;;*.+ i'; +3Li
i.^t{:3h_t_ {,4.i* x
Note: Although the provision speaks of Exclusive and Original Jurisdiction of Labor Arbiters,
the cases enumerated may instead be submitted to a Voluntary Arbitrator by agreement of the
under ArL 262. The law
USIVE AND ORIGINAL
TION
Cases certified to the NLRC for compulsory arbitration by the Sec. of Labor under Art.
within
263;
lnjunction cases under Arts. 128 and 264; and days from
Contemptcases. ' the order,
decision on
palpable or
APPELLATE by the
1. Cases decided by Labor Arbiters under Art. 217(b) d the LC and Sec. 10 of Migrant
Only one (1)
Workers Act; and
2. Cases decided by the Regional Offices of the DOLE in the exercises of their adjudicatory
functions under Art. 129 over monetary claims of workers not exceeding P5'000.
APPEAL
of the NLRC
Decisions
may be elevated for
REVIEW to the Court of
Appeals by a Petition for
Certiorari under Ru/e 65 of
the 1997 Rules of Court
within 60 days from notice
of judgment, order or
resolution sought to be
assailed (As amended)

1, lnterpretation and implementation of CBA provisions; and


2, lnterpretation and enforcement of company personnel policies.

Note; Grievance machinery is resorted to for purposes of settlement. Unresolved grievances


are brought to the Voluntary Arbitrator.

1. Unresolved grievances arising from the interpretation or of jurisdictitrur.


i+ iri *l
2. Those arising from the interpretation or enforcement of company personnel policies; | 2. nqf
qdfub
diqCretiqn; ...{
and | 3. bf66duf 4"

3. Upon agreement of the parties, other labor disputes including ULP and bargaining | 4. ti.rt,i.iii"i"t]iM
ofthe 1997

Note: "All other disputes" under Arl. 262 may include termination disputes, provided that
the agreement between the parties states in unequivocal language that they conform to
the submission of termination disputes and ULP to voluntary arbitration. This is so
because termination disputes are generally within the exclusive and original jurisdiction of
Labor Arbiters by express provision ol law (Vivero v. CA, 344 SCRA 268, 2000).

5m @ebs @ofleqe otIslo


2011 CENTRALIZED BAR OPERATIONS

139
r4a
TABOR LAW
LABOR RELATIONS

EXCLUSIVE AND ORIGINAL


W
ln petitions for
1. lnter-uniondispute; cancellation of union
2. lntra-union dispute; and registration, if filed with
3. Other related labor relations disputes. the Regional Office, the
NOTE: E.O, 251 OF 1987 removed from the jurisdiction of the BLR "all" labor- appeal is with the BLR
management disputes. The effect of E.O. 251 is to kansfer to the NCMB the mediation, Director whose decision
conciliation, and arbitration functions of the BLR. shall be final and
NOTE: However, the parties may by agreement, settle their differences by submitting exeantory.
their case to a Voluntary Arbitrator instead of taking the case to the BLR. lf the petition for
Petitions for cancellation of union registration may be filed with the Regional Office or cancellation is filed
directly with the BLR. directly with the BLR, the
appeal is with the
Secretary of Labor whose
decision shall be final and
executor

Prima f*ie evidence of Decisions of the Regional


abuse of discretion; Director are appealable to
lf the decision, order or the Secretary of Labor
award was Mhi1 5 days from receipt
fraud or bMaer upon posting
hd* ano &W.br sure-Qqpnd in
3. of"frg$tig,gs qqouni'tquigaffio the
Cases involving recovery of wages and other monetary claims and benefits, including legal ffihetary AW'in the
interest provided that the claim is presented by an employee or person employed in domestic tf \tt ii3*ois#i6-?iihd iirderaffidd#om (R.A.
"reffi#gh ffiMkmb t?l#isn to Art,
or household seryice, or househelper, the claim arises from Er-Ee relations, the claimant does findld
not seek reinstatement and the aggregate money claim of each employee or househelper whicQ
.AVffi
-m
&Zt1S
does not exceed P 5,000. rrrepq
4inffi
to the prr rrrvrreJ
NOTE: The jurisdictional limitation imposed by Art. 129 on the visitorial and enforcement St claim for
powers of the Regional Director under Art. 128[b] of the LC has been repealed by R. A. No. p' and
7730. ln other words, the P 5,000 limit in Art. 129 does not apply to the exercise of power pses P 5,000
under Art. 12$bl (Guico v. Sec. of Labor, GR No; 1 31 7 50, November 1 6, 1 998). w
ffi B appealable
within 5 days
& rt of the
Power to inspect employer's premises and records, issue ompliance orders,
stoppage of work (Art. 128)

EXCLUSIVE AND ORIGINAL


lf there exists a labor dispute causing or likely to cause a strike or lockout in an induetry |

indispensable to the national interest.

THE SECRETARY OF LABOR MAY:


assume jurisdiction and decide it; or
certrfy the same to the NLRC for compulsory arbitration.

APELLATE
Cancellation of registration of federation or National union by the BLR;
Denial of application of registration of federation or national union by the BLR;
Decision of BLR in lnterilntra Union dispute; and
Decision of Med-Arbiter in Petition for Certification election.

Sm &e[o @olloge of Lelo


201 1 CENTRALIZED BAR OPERATIONS

L4L