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CRALaw Labor Law PreWeek 2017
CRALaw Labor Law PreWeek 2017
o R.A. No. 10361 [January 18, 2013], instituting policies for the
protection and welfare of
domestic workers, otherwise known as the “Domestic Workers Act” or
“Batas Kasambahay.”
o R.A. No. 10151 [June 21, 2011], allowing the employment of night
workers, thereby repealing
Articles 130 and 131 of Presidential Decree Number Four Hundred Forty-
Two, as amended,
otherwise known as the Labor Code of the Philippines.
o R.A. No. 10022 [March 8, 2010], amending R.A. No. 8042, otherwise
known as the Migrant
Workers and Overseas Filipinos Act of 1995, as amended, further
improving the standard of
protection and promotion of the welfare of migrant workers, their
families and overseas Filipinos
in distress and for other purposes.
1 Formerly, Omnibus Rules and Regulations Implementing R.A. No. 8042 jointly issued
by the Secretary of Foreign Affairs and Secretary of Labor and Employment on
February 29,
1996;
LAST-MINUTE
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REVIEW
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------------------------------------------------
SYLLABUS
MAJOR TOPIC 1
FUNDAMENTAL PRINCIPLES AND CONCEPTS
A.
CONSTITUTIONAL PROVISIONS
1 Formerly, POEA Rules and Regulations Governing the Recruitment and Employment of
Land-Based Overseas Workers issued on February 4, 2002.
2 Formerly, POEA Rules and Regulations Governing the Recruitment and Employment of
Seafarers issued on May 23, 2003.
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• What are the kinds of procedural due process that may be asserted in labor cases?
The following are the kinds of procedural due process that may be invoked
in labor cases, to wit:
(1) Procedural due process that may be invoked against the employer during
the investigation of the
employee’s administrative case at the company-level that may lead to
his dismissal:
a. Statutory due process per Agabon doctrine which refers to the due
process provision in the Labor
Code (Article 277[b]); and
b. Contractual due process per Abbott Laboratories doctrine which
refers to the due process
prescribed in the Company Rules and Regulations or Code of Conduct
or Code of Discipline.
NOTE: CONSTITUTIONAL DUE PROCESS UNDER ARTICLE III, SECTION 1 OF THE
CONSTITUTION CANNOT BE INVOKED AGAINST A PRIVATE PARTY LIKE THE
EMPLOYER. IT CAN ONLY BE ASSERTED AGAINST THE STATE OR GOVERNMENT.
HENCE, THE EMPLOYEE BEING INVESTIGATED CANNOT INVOKE CONSTITUTIONAL
DUE PROCESS BUT ONLY STATUTORY AND CONTRACTUAL DUE PROCESS.
(2) Procedural due process that may be invoked once a case has already
been filed in the labor court, such
as the Labor Arbiter or the NLRC, and/or brought to higher courts:
a. Constitutional due process under Section 1, Article III of the
Constitution since this right cannot be
invoked against the private employer but only against the State or
government as represented by
Labor Arbiters, NLRC, CA and SC.
The rule since Agabon is that compliance with the statutorily-prescribed
procedural due process under
Article 292(b) [277(b)] of the Labor Code would suffice. It is not important in
determining the validity of the
termination whether there is an existing company policy which also enunciates the
procedural due process in
termination cases. However, under the latest doctrinal en banc ruling in the 2013
case of Abbott Laboratories,
Philippines v. Pearlie Ann F. Alcaraz, it is now required that in addition to
compliance with the statutory due
process, the employer should still comply with the due process procedure prescribed
in its own company rules now
called CONTRACTUAL DUE PROCESS. The employer’s failure to observe its own company-
prescribed due
process, IN ADDITION TO STATUTORY DUE PROCESS, will make it liable to pay an
indemnity in the form
of nominal damages, the amount of which is similar to the P30,000.00 awarded under
the Agabon doctrine.
• When can an employee invoke constitutional due process and right to equal
protection of the laws?
As distinguished from company-level investigation conducted by the
employer where only STATUTORY
and CONTRACTUAL DUE PROCESS can be invoked, a dismissed employee can invoke
constitutional due
process only when he files an illegal dismissal case in the labor court and he is
deprived due process by a
government functionary like the Labor Arbiter or the Commission (NLRC), or Court of
Appeals on Rule 65
certiorari petition. The reason is that, at this stage, the government is now
involved through said labor tribunals.
• Is right to counsel mandatory?
No. Per the prevailing Lopez doctrine (see 2011 case of Lopez v. Alturas
Group of Companies), the right to
counsel is neither indispensable nor mandatory. It becomes mandatory only in two
(2) situations:
(1) When the employee himself requests for counsel; or
(2) When he manifests that he wants a formal hearing on the charges
against him, in which case,
he should be assisted by counsel.
B.
NEW CIVIL CODE
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C.
THE LABOR CODE
• What are the distinctions between Labor Relations and Labor Standards?
“Labor standards law” is that part of labor law which prescribes the minimum
terms and conditions of
employment which the employer is required to grant to its employees.
“Labor relations law” is that part of labor law (Book V of the Labor Code)
which deals with unionism,
collective bargaining, grievance machinery, voluntary arbitration, strike,
picketing and lockout.
Labor relations and labor standards laws are not mutually exclusive. They
are complementary to, and
closely interlinked with, each other. For instance, the laws on collective
bargaining, strikes and lockouts which are
covered by labor relations law necessarily relate to the laws on working conditions
found in Book III.
• What is a SEBA?
An “exclusive bargaining representative” or “exclusive bargaining agent”
or Sole and Exclusive
Bargaining Agent (SEBA), refers to a legitimate labor organization duly certified
as the sole and exclusive
bargaining representative or agent of all the employees in a bargaining unit.
Note must be made of the latest innovative amendment of the Labor Code’s
Implementing Rules introduced
by Department Order No. 40-I-15, Series of 2015, which has expressly repealed the
entire provision on “Voluntary
Recognition” of the Implementing Rules on Book V and replaced it with the freshly-
minted mode of securing the
status of a sole and exclusive bargaining agent through a “Request for SEBA
Certification” or “Request.”
Voluntary recognition is therefore no longer allowed and is effectively replaced by
the Request mode.
(NOTE: This is extensively discussed in Major Topic No. 7 (Labor
Relations, infra)
• Can individual employee or group of employees bring grievable issues directly to
their employer without the
participation of the SEBA?
Yes. The designation of a SEBA does not deprive an individual employee or
group of employees to
exercise their right at any time to present grievances to their employer, with or
without the intervention of the
SEBA.
• Can individual employee or group of employees bring grievable issues to voluntary
arbitration without the
participation of the SEBA?
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5
!6
SYLLABUS
MAJOR TOPIC 2
RECRUITMENT AND PLACEMENT
A.
ILLEGAL RECRUITMENT
• What are illegal recruitment acts that can be committed by No. 1 above (NON-
LICENSEE or NON-HOLDER
OF AUTHORITY)?
When what is committed by such NON-LICENSEES or NON-HOLDERS OF AUTHORITY
is
any of the acts of recruitment allowed only to be done by licensees or
holders of authority such as the
act of canvassing, enlisting, contracting, transporting, utilizing, hiring,
or procuring workers and
includes referring, contract services, promising or advertising for
employment abroad, whether for
profit or not.
In other words, had they possessed of license or authority, their
commission of any of the
foregoing acts could have been valid and not constitutive of illegal
recruitment.
NOTE: The non-licensee or non-holder of authority is presumed to be
engaged in such recruitment
if he in any manner, offers or promises for a fee employment abroad to two
or more persons.
• What are acts of illegal recruitment when committed by ANY PERSON, whether a NON-
LICENSEE,
NON-HOLDER OF AUTHORITY or even by a LICENSEE or HOLDER OF AUTHORITY?
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• What is the nature of the liability between local recruiter and its foreign
principal?
The nature of their liability is “solidary” or “joint and several” for
any and all claims arising out of the
employment contract of OFWs.
• Is the solidary liability of corporate officers with the recruitment agency
“automatic” in character?
No. In order to hold the officers of the agency solidarily liable, it is
required that there must be proof of
their culpability therefor. Thus, it was held in the 2013 case of Gagui v. Dejero,1
that while it is true that R.A. 8042
and the Corporation Code provide for solidary liability, this liability must be so
stated in the decision sought to be
implemented. Absent this express statement, a corporate officer may not be
impleaded and made to personally
answer for the liability of the corporation.
• What are some relevant principles on the persons liable for illegal recruitment?
1. Employees of a licensed recruitment agency may be held liable for illegal
recruitment as principal by direct
participation, together with his employer, if it is shown that he actively
and consciously participated in illegal
recruitment.
2. Good faith and merely following orders of superiors are not valid defenses of
an employee.
3. A manager of a recruitment/manning agency is not a mere employee. As such, he
receives job applications,
interviews applicants and informs them of the agency’s requirement of payment
of performance or cash bond
prior to the applicant’s deployment. As the crewing manager, he was at the
forefront of the company’s
recruitment activities.
THEORY OF IMPUTED KNOWLEDGE
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No. They are not entitled to such reliefs under Article 279 as
reinstatement or separation pay in lieu of
reinstatement or full backwages.
• What are the reliefs to which OFWs are entitled?
They are entitled to the reliefs provided under Section 10 of R.A. No.
8042, as amended, to wit:
(1) All salaries for the unexpired portion of the contract;
(2) Full reimbursement of placement fees and deductions made with
interest at 12% per annum.
All the reliefs available to an illegally dismissed OFW are always
monetary in nature.
It must be noted that under the 2009 Serrano doctrine, (Serrano v.
Gallant Maritime Services, Inc.,),1 an
illegally dismissed OFW is now entitled to all the salaries for the entire
unexpired portion of their employment
contracts, irrespective of the stipulated term or duration thereof. The underlined
phrase in Section 10 below has
been declared unconstitutional in this case:
“In case of termination of overseas employment without
just, valid or authorized cause as defined
by law or contract, or any unauthorized deductions from the migrant
worker's salary, the worker shall be
entitled to the full reimbursement of his placement fee and the
deductions made with interest at twelve
percent (12%) per annum, plus his salaries for the unexpired portion
of his employment contract or for
three (3) months for every year of the unexpired term, whichever is
less.”
However, R.A. No. 10022 (March 8, 2010), which amended R.A. No. 8042
(Migrant Workers and Overseas
Filipinos Act of 1995), has replicated and re-enacted the same unconstitutional
provision exactly as above quoted.
The question is: was the unconstitutionality of the above-underlined part of the
provision cured by such
replication or re-enactment in the amendatory law?
The 2014 en banc case of Sameer Overseas Placement Agency, Inc. v. Joy C.
Cabiles,2 answered this in
the negative. The said provision was thus declared still unconstitutional and
null and void despite its replication in
R.A. No. 10022.
1. Monetary award to OFW is not in the nature of separation pay or backwages but
a form of indemnity.
2. Only salaries are to be included in the computation of the amount due for the
unexpired portion of the contract.
Overtime, holiday and leave pay and allowances are not included. However,
this rule on exclusion of
allowance does not apply in case it is encapsulated in the basic salary
clause.
3. Entitlement to overtime pay of OFWs. - As far as entitlement to overtime pay
is concerned, the correct
criterion in determining whether or not sailors are entitled to overtime pay
is not whether they were on board
and cannot leave ship beyond the regular eight (8) working hours a day, but
whether they actually rendered
service in excess of said number of hours. An OFW is not entitled to overtime
pay, even if guaranteed, if he
failed to present any evidence to prove that he rendered service in excess of
the regular eight (8) working hours
a day.
4. In case of unauthorized deductions from OFW’s salary, he shall be entitled to
the full reimbursement of the
deductions made with interest at 12% per annum. This is in addition to the
full reimbursement of his placement
fee with the same interest of 12% per annum plus his salaries for the
unexpired portion of his employment
contract if he is terminated without just, valid or authorized cause as
defined by law or contract.
• Which/Who has jurisdiction over an OFW’s claims for disability and death
benefits?
a) The Labor Arbiters, NOT the SSS, have jurisdiction over claims for
disability, death and other benefits
of OFWs.
b) Labor Arbiters have jurisdiction even if the case is filed by the
heirs of the deceased OFW.
2 G.R. No. 170139, Aug. 05, 2014. The foreign employer alleged in this case that
respondent’s dismissal was due to inefficiency in her work and negligence in her
duties.
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DIRECT HIRING
▪ Does the POEA Administrator or the DOLE Secretary or DOLE Regional Director have
the power to issue
closure order?
Yes. If upon preliminary examination or surveillance, the DOLE Secretary,
the POEA Administrator or
DOLE Regional Director is satisfied that such danger or exploitation exists, a
written order may be issued for the
closure of the establishment being used for illegal recruitment activity.
• Does the DOLE Secretary have the power to issue warrant of arrest and search and
seizure orders?
No. Salazar v. Achacoso,1 declared that the exercise by the DOLE Secretary
of his twin powers to issue
arrest warrant and search and seizure orders provided under Article 38[c] of the
Labor Code is unconstitutional.
Only regular courts can issue such orders.
REMITTANCE OF FOREIGN EXCHANGE EARNINGS
B.
EMPLOYMENT OF NON-RESIDENT ALIENS
• What are the categories of foreign nationals EXEMPTED from securing AEP?
a) All members of the diplomatic service and foreign government officials
accredited by and with reciprocity
arrangement with the Philippine government;
b) Officers and staff of international organizations of which the Philippine
government is a member, and their
legitimate spouses desiring to work in the Philippines;
c) All foreign nationals granted exemption by law;
d) Owners and representatives of foreign principals whose companies are
accredited by the POEA, who come to
the Philippines for a limited period and solely for the purpose of
interviewing Filipino applicants for
employment abroad;
e) Foreign nationals who come to the Philippines to teach, present and/or
conduct research studies in
universities and colleges as visiting, exchange or adjunct professors under
formal agreements between the
universities or colleges in the Philippines and foreign universities or
colleges; or between the Philippine
government and foreign government: provided that the exemption is on a
reciprocal basis; and
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1.
APPRENTICES AND LEARNERS
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2.
DISABLED WORKERS
(PERSONS WITH DISABILITY)
(R.A. No. 7277, as Amended by R.A. No. 9442)
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SYLLABUS
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MAJOR TOPIC 3
LABOR STANDARDS
A.
CONDITIONS OF EMPLOYMENT
1.
SCOPE
• Who are covered by the labor standards provisions of the Labor Code?
Employees in ALL establishments, whether operated for profit or not, are
covered by the law on labor
standards.
• Who are excluded?
The following are excluded from the coverage of the law on labor
standards:
a. Government employees;
b. Managerial employees;
c. Other officers or members of a managerial staff;
d. Domestic workers or kasambahay and persons in the personal service of
another;
e. Workers paid by results;
f. Non-agricultural field personnel; and
g. Members of the family of the employer.
2.
HOURS OF WORK
a.
PRINCIPLES IN DETERMINING HOURS WORKED
“Fair day’s wage for a fair day’s labor,” remains the basic factor in
determining the employees’
wages and backwages.
b.
NORMAL HOURS OF WORK
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ii.
POWER INTERRUPTIONS/BROWNOUTS
d.
WAITING TIME
(Article 84, Labor Code)
e.
OVERTIME
(Article 87, Labor Code)
• May an employee validly refuse to render overtime work under any of the afore-
said circumstances?
No. When an employee refuses to render emergency overtime work under any of
the foregoing conditions,
he may be dismissed on the ground of insubordination or willful disobedience of the
lawful order of the
employer.
f.
NIGHT SHIFT DIFFERENTIAL
(ARTICLE 86, LABOR CODE)
• How is it reckoned and computed?
Night shift differential is equivalent to 10% of employee's regular wage
for each hour of work performed
between 10:00 p.m. and 6:00 a.m. of the following day.
• What is the distinction between night shift differential pay and overtime pay?
When the work of an employee falls at night time, the receipt of overtime
pay shall not preclude the right to
receive night differential pay. The reason is the payment of the night differential
pay is for the work done during the
night; while the payment of the overtime pay is for work in excess of the regular
eight (8) working hours.
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g.
REST PERIODS
1.
WEEKLY REST DAY
Yes. The employer shall determine and schedule the weekly rest day of his
employees subject to CBA and
to such rules and regulations as the DOLE Secretary may provide. However, the
employer shall respect the
preference of employees as to their weekly rest day when such preference is based
on religious grounds.
2.
EMERGENCY REST DAY WORK
• When can an employer require work on a rest day?
The employer may require any of its employees to work on their scheduled
rest day for the duration of the
following emergency and exceptional conditions:
a. In case of actual or impending emergencies caused by serious accident,
fire, flood, typhoon, earthquake,
epidemic or other disaster or calamity, to prevent loss of life and
property, or in case of force majeure or
imminent danger to public safety;
b. In case of urgent work to be performed on machineries, equipment, or
installations, to avoid serious
loss which the employer would otherwise suffer;
c. In the event of abnormal pressure of work due to special circumstances,
where the employer cannot
ordinarily be expected to resort to other measures;
d. To prevent serious loss of perishable goods;
e. Where the nature of the work is such that the employees have to work
continuously for seven (7) days
in a week or more, as in the case of the crew members of a vessel to
complete a voyage and in other
similar cases; and
f. When the work is necessary to avail of favorable weather or
environmental conditions where
performance or quality of work is dependent thereon.
h.
HOLIDAY PAY/PREMIUM PAY
1.
COVERAGE, EXCLUSIONS
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• In case of two (2) regular holidays falling on the same day, the worker
should be compensated as follows:
o If unworked – 200% for the two regular holidays;
o If worked – 200% for the two regular holidays plus premium of 100% for work
on that day.
• “Monthly-paid” employees are not excluded from the coverage of holiday pay.
i.
13TH MONTH PAY
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• What are the kinds of establishment covered by the law on service charge?
The rules on service charge apply only to establishments collecting
service charges, such as hotels,
restaurants, lodging houses, night clubs, cocktail lounges, massage clinics, bars,
casinos and gambling houses, and
similar enterprises, including those entities operating primarily as private
subsidiaries of the government.
• Who are the employees covered by this law?
The same rules on service charges apply to all employees of covered
employers, regardless of their
positions, designations or employment status, and irrespective of the method by
which their wages are paid except
those receiving more than P2,000.00 a month.
• Who are not covered?
Specifically excluded from coverage are employees who are receiving wages
of more than P2,000.00 a
month. However, it must be pointed out that the P2,000.00 ceiling is no longer
realistic considering the applicable
minimum wages prevailing in the country. Hence, it must be disregarded.
•How is the service charge distributed?
a. Percentage of sharing.
All service charges collected by covered employers are required to be
distributed at the following rates:
1. 85% to be distributed equally among the covered employees; and
2. 15% to management to answer for losses and breakages and distribution
to employees receiving more
than P2,000.00 a month, at the discretion of the management.
b. Frequency of distribution.
The share of the employees referred to above should be distributed and
paid to them not less often than
once every two (2) weeks or twice a month at intervals not exceeding sixteen (16)
days.
• Can the service charge be integrated into the wages of covered employees?
Yes. In case the service charge is abolished, the share of covered
employees should be considered
integrated in their wages, in accordance with Article 96 of the Labor Code. The
basis of the amount to be integrated
is the average monthly share of each employee for the past twelve (12) months
immediately preceding the abolition
or withdrawal of such charges.
• What are some principles on service charge?
• Tips and services charges are two different things. Tips are given by
customers voluntarily to waiters and other
people who serve them out of recognition of satisfactory or excellent service.
There is no compulsion to give
tips under the law. The same may not be said of service charges which are
considered integral part of the cost of
the food, goods or services ordered by the customers.
• Service charges are not in the nature of profit share and, therefore, cannot
be deducted from wage.
B.
WAGES
1.
WAGE VS. SALARY
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3.
FACILITIES VERSUS SUPPLEMENTS
• What are facilities?
The term “facilities” includes articles or services for the benefit of the
employee or his family but does
not include tools of the trade or articles or services primarily for the benefit of
the employer or necessary to the
conduct of the employer’s business. They are items of expense necessary for the
laborer’s and his family’s existence
and subsistence which form part of the wage and when furnished by the employer, are
deductible therefrom, since if
they are not so furnished, the laborer would spend and pay for them just the same.
•What are supplements?
The term “supplements” means extra remuneration or special privileges or
benefits given to or received
by the laborers over and above their ordinary earnings or wages.
• What are the distinctions between facilities and supplements?
The benefit or privilege given to the employee which constitutes an extra
remuneration over and above his
basic or ordinary earning or wage is supplement; and when said benefit or privilege
is made part of the laborer’s
basic wage, it is a facility. The criterion is not so much with the kind of the
benefit or item (food, lodging, bonus or
sick leave) given but its purpose. Thus, free meals supplied by the ship operator
to crew members, out of necessity,
cannot be considered as facilities but supplements which could not be reduced
having been given not as part of
wages but as a necessary matter in the maintenance of the health and efficiency of
the crew during the voyage.
• What is the rule on deductibility of facilities and supplements?
Facilities are deductible from wage but not supplements.
4.
NON-DIMINUTION OF BENEFITS
4.1.
COMPANY PRACTICE
• What is company practice?
Company practice is a custom or habit shown by an employer’s repeated,
habitual customary or succession
of acts of similar kind by reason of which, it gains the status of a company policy
that can no longer be disturbed or
withdrawn.
To ripen into a company practice that is demandable as a matter of right,
the giving of the benefit should
not be by reason of a strict legal or contractual obligation but by reason of an
act of liberality on the part of
the employer.
• What are the criteria that may be used to determine existence of company
practice?
Since there is no hard and fast rule which may be used and applied in
determining whether a certain act of
the employer may be considered as having ripened into a practice, the following
criteria may be used to determine
whether an act has ripened into a company practice:
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(1) The act of the employer has been done for a considerable period of
time;
(2) The act should be done consistently and intentionally; and
(3) The act should not be a product of erroneous interpretation or
construction of a doubtful or difficult
question of law or provision in the CBA.
(See the 2013 case of Vergara, Jr. v. Coca-Cola
Bottlers Philippines, Inc.1)
1. THE ACT OF THE EMPLOYER HAS BEEN DONE FOR A CONSIDERABLE PERIOD OF
TIME.
If done only once as in the case of Philippine Appliance Corporation
(Philacor) v. CA, 2 where the CBA
signing bonus was granted only once during the 1997 CBA negotiation, the same
cannot be considered as having
ripened into a company practice.
In the following cases, the act of the employer was declared company
practice because of the considerable
period of time it has been practiced:
(a) Davao Fruits Corporation v. Associated Labor Unions.3 - The act of
the company of freely and
continuously including in the computation of the 13th month pay,
items that were expressly excluded
by law has lasted for six (6) years, hence, was considered
indicative of company practice.
(b) Sevilla Trading Company v. A. V. A. Semana.4 - The act of
including non-basic benefits such as paid
leaves for unused sick leave and vacation leave in the
computation of the employees’ 13th month pay
for at least two (2) years was considered a company practice.
(c) The 2010 case of Central Azucarera de Tarlac v. Central Azucarera
de Tarlac Labor Union-
NLU, 5 also ruled as company practice the act of petitioner of
granting for thirty (30) years, its workers
the mandatory 13th month pay computed in accordance with the
following formula: Total Basic
Annual Salary divided by twelve (12) and Including in the
computation of the Total Basic Annual
Salary the following: basic monthly salary; first eight (8) hours
overtime pay on Sunday and legal/
special holiday; night premium pay; and vacation and sick leaves
for each year.
1
G.R. No. 176985, April 1, 2013; See also Supreme Steel Corporation v.
Nagkakaisang Manggagawa ng Supreme Independent Union (NMS-IND-APL), G.R. No.
185556,
March 28, 2011, 646 SCRA 501, 527; TSPIC Corporation v. TSPIC Employees Union
(FFW), G.R. No. 163419, Feb. 13, 2008, 545 SCRA 215, 226.
6 G.R. No. L-57636, May 16, 1983, 122 SCRA 267; 207 Phil. 2235.
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5.
PROHIBITIONS REGARDING WAGES
(See Articles 112 to 119 of the Labor Code)
(1) NON-INTERFERENCE BY EMPLOYER IN THE DISPOSAL BY EMPLOYEES OF THEIR WAGES.
Article 112 of the Labor Code - No employer is allowed to limit or
otherwise interfere with the freedom of
any employee to dispose of his wages and no employer shall in any manner oblige any
of his employees to patronize
any store or avail of the services offered by any person.
(2) WAGES NOT SUBJECT TO EXECUTION OR ATTACHMENT; EXCEPTION.
The general rule is that laborer’s wages are not subject to execution or
attachment. The exception is when
such execution or attachment is made for debts incurred for food, shelter, clothing
and medical attendance.
(3) PROHIBITION ON DEDUCTIONS FROM WAGES.
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k. Members of the family of the employer who are dependent on him for
support.
• Are unavailed service incentive leaves commutable to cash?
Yes. The service incentive leave is commutable to its money equivalent if
not used or exhausted at the end
of the year.
2.
MATERNITY LEAVE
The term "solo parent" refers to any individual who falls under any of the
following categories:
(1) A woman who gives birth as a result of rape and other crimes against
chastity even without a final
conviction of the offender: Provided, That the mother keeps and raises
the child;
(2) Parent left solo or alone with the responsibility of parenthood due to
death of spouse;
(3) Parent left solo or alone with the responsibility of parenthood while
the spouse is detained or is serving
sentence for a criminal conviction for at least one (1) year;
(4) Parent left solo or alone with the responsibility of parenthood due to
physical and/or mental incapacity
of spouse as certified by a public medical practitioner;
(5) Parent left solo or alone with the responsibility of parenthood due to
legal separation or de facto
separation from spouse for at least one (1) year, as long as he/she is
entrusted with the custody of the
children;
(6) Parent left solo or alone with the responsibility of parenthood due to
declaration of nullity or
annulment of marriage as decreed by a court or by a church as long as
he/she is entrusted with the
custody of the children;
(7) Parent left solo or alone with the responsibility of parenthood due to
abandonment of spouse for at
least one (1) year;
(8) Unmarried mother/father who has preferred to keep and rear her/his
child/children instead of having
others care for them or give them up to a welfare institution;
(9) Any other person who solely provides parental care and support to a
child or children;
(10) Any family member who assumes the responsibility of head of family as
a result of the death,
abandonment, disappearance or prolonged absence of the parents or solo
parent.
• What is the effect of change of status of the solo parent?
A change in the status or circumstance of the parent claiming benefits
under this Act, such that he/she is no
longer left alone with the responsibility of parenthood, shall terminate his/her
eligibility for these benefits.
• Who are considered children under this law?
"Children" refer to those living with and dependent upon the solo parent
for support who are unmarried,
unemployed and not more than eighteen (18) years of age, or even over eighteen (18)
years but are incapable of self-
support because of mental and/or physical defect/disability.
• Is an unavailed parental leave convertible to cash?
No. In the event that the parental leave is not availed of, said leave
shall not be convertible to cash unless
specifically agreed upon previously.
5.
SPECIAL LEAVES FOR WOMEN WORKERS
(MAGNA CARTA OF WOMEN)
6.
LEAVE FOR VICTIMS OF VIOLENCE
AGAINST WOMEN AND CHILDREN
(R.A. No. 9262)
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D.
SPECIAL GROUPS OF EMPLOYEES
1.
WOMEN
a.
DISCRIMINATION
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• What are the prohibited acts against women under the Labor Code?
Article 137 of the Labor Code and its implementing rule consider unlawful
the followings acts of the
employer:
1. To discharge any woman employed by him for the purpose of preventing
such woman from enjoying
maternity leave, facilities and other benefits provided under the
Labor Code;
2. To discharge such woman on account of her pregnancy, or while on
leave or in confinement due to her
pregnancy;
3. To discharge or refuse the admission of such woman upon returning to
her work for fear that she may
again be pregnant;
4. To discharge any woman or any other employee for having filed a
complaint or having testified or
being about to testify under the Labor Code; or
5. To require as a condition for or continuation of employment that a
woman employee shall not get
married or to stipulate expressly or tacitly that upon getting
married, a woman employee shall be
deemed resigned or separated, or to actually dismiss, discharge,
discriminate or otherwise
prejudice a woman employee merely by reason of marriage.
d.
SEXUAL HARASSMENT
(ANTI-SEXUAL HARASSMENT ACT)
(R.A. No. 7877)
1 G.R. No. 118978, May 23, 1997, 272 SCRA 596, 605.
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• Who are the persons who may be held liable for sexual harassment?
Work, education or training-related sexual harassment is committed by any
employer, employee, manager,
supervisor, agent of the employer, teacher, instructor, professor, coach, trainor,
or any other person who, having
authority, influence or moral ascendancy over another in a work or training or
education environment, demands,
requests or otherwise requires any sexual favor from another, regardless of whether
the demand, request or
requirement for submission is accepted by the object of said act.
Further, any person who directs or induces another to commit any act of
sexual harassment as defined in the
law, or who cooperates in the commission thereof by another without which it would
not have been committed, shall
also be held liable under the law.
•How is sexual harassment committed in a work-related or employment environment?
In a work-related or employment environment, sexual harassment is committed
when:
1. The sexual favor is made a condition in the hiring or in the employment,
re-employment or continued
employment of said individual or in granting said individual favorable
compensation, terms, conditions,
promotions, or privileges; or the refusal to grant the sexual favor
results in limiting, segregating or
classifying the employee which in any way would discriminate, deprive or
diminish employment
opportunities or otherwise adversely affect said employee;
2. The above acts would impair the employee’s rights or privileges under
existing labor laws; or
3. The above acts would result in an intimidating, hostile, or offensive
environment for the employee.
• What are duties of the employer in regard to sexual harassment complaints?
It is the duty of the employer to prevent or deter the commission of acts
of sexual harassment and to
provide the procedures for the resolution or prosecution of acts of sexual
harassment.
The employer or head of office is required to:
1. promulgate appropriate rules and regulations, in consultation with and
jointly approved by the
employees or students or trainees, through their duly designated
representatives, prescribing the
procedure for the investigation of sexual harassment cases and the
administrative sanctions therefor.
The said rules and regulations issued shall include, among others,
guidelines on proper decorum in the
workplace and educational or training institutions.
2. create a committee on decorum and investigation of cases on sexual
harassment. The committee shall
conduct meetings, as the case may be, with officers and employees,
teachers, instructors, professors,
coaches, trainors and students or trainees to increase understanding and
prevent incidents of sexual
harassment. It shall also conduct the investigation of alleged cases
constituting sexual harassment.
2.
MINORS
(Labor Code and R.A. No. 7678, R.A. No. 9231)
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allowed to work between ten (10) o’clock in the evening and six (6)
o’clock in the morning of the
following day.
• What is the prohibition of employing minors in certain undertakings and
advertisements?
No child below 18 years of age is allowed to be employed as a model in
any advertisement directly or
indirectly promoting alcoholic beverages, intoxicating drinks, tobacco and its by-
products, gambling or any form of
violence or pornography.
3.
KASAMBAHAY
(FORMERLY CALLED “HOUSEHELPERS”)
(R.A. No. 10361, otherwise known as “Domestic Workers Act” or “Batas
Kasambahay”
Approved on January 18, 2013).
Under the Kasambahay Law, the following are the minimum wages of
kasambahays:
(a) P2,500.00 a month for those employed in the National Capital Region
(NCR);
(b) P2,000.00 a month for those employed in chartered cities and first
class municipalities; and
(c) P1,500.00 a month for those employed in other municipalities.
• Are the minimum wages subject to review by the RTWPBs or Regional Boards?
Yes. After one (1) year from the effectivity of the Kasambahay Law, and
periodically thereafter, the
Regional Tripartite and Productivity Wage Boards (RTPWBs) shall review, and if
proper, determine and adjust
the minimum wage rates of domestic workers.”
• What are some important principles on wage of kasambahay?
4. Pay slip. – The employer shall at all times provide the Kasambahay with a
copy of the pay slip containing
the amount paid in cash every pay day, and indicating all deductions made,
if any. The copies of the pay
slip shall be kept by the employer for a period of three (3) years.
b. Normal daily hours of work. – Because R.A. No. 10361 does not contain
any provision on the number
of normal hours of work that a Kasambahay should render in a day but
merely prescribes said daily rest
period of eight (8) hours per day, it may be concluded that the
Kasambahay should work for at least a
total of sixteen (16) hours per day as normal hours of work. However, it
must be noted that the Labor
Code does not contain any provision on the normal hours of work of
househelpers. Article 1695 of the
Civil Code, however, specifically provides that househelpers shall not
be required to work for more
than ten (10) hours a day. Since R.A. No. 10361, a special law, is the
most recent piece of legislation,
it should prevail over the general provision of the Civil Code.
d. 13th month pay. - The Kasambahay who has rendered at least one (1) month
of service is entitled to a
13th month pay which shall not be less than one-twelfth (1/12) of
his/her total basic salary earned in a
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calendar year. The 13th month pay shall be paid not later than
December 24 of every year or upon
separation from employment.
l. Board, lodging and medical attendance. - The employer shall provide for
the basic necessities of the
Kasambahay, to include the following:
(1) At least three (3) adequate meals a day, taking into consideration
the Kasambahay's religious
beliefs and cultural practices;
(2) Humane sleeping condition that respects the person's privacy for
live-in arrangement; and
(3) Appropriate rest and medical assistance in the form of first-aid
medicines, in case of illnesses and
injuries sustained during service without loss of benefits.
m. Opportunities for education and training. - The Kasambahay shall be
afforded the opportunity to
finish basic education, which shall consist of elementary and secondary education.
He/she may be allowed access to
alternative learning systems and, as far as practicable, higher education or
technical vocational education and
training.
n. Membership in labor organization. - The Kasambahay shall have the right
to join a labor organization
of his/her own choosing for purposes of mutual aid and collective negotiation.
r. Health and safety. - The employer shall safeguard the safety and health
of the Kasambahay in
accordance with the standards which the DOLE shall develop through the Bureau of
Working Conditions (BWC)
and the Occupational Safety and Health Center (OSHC) within six (6) months from the
promulgation of this IRR.
The said standards shall take into account the peculiar nature of domestic work.
s. Prohibition on debt bondage. - It shall be unlawful for the employer or
any person acting on his/her
behalf to place the Kasambahay under debt bondage. “Debt bondage” refers to the
rendering of service by the
Kasambahay as security or payment for a debt where the length and nature of service
is not clearly defined or when
the value of the service is not reasonably applied in the payment of the debt.
t. Assignment to non-household work. - The employer shall not assign the
Kasambahay to work, whether
in full or part-time, in a commercial, industrial or agricultural enterprise at a
wage rate lower than that provided for
agricultural or non-agricultural workers.
If so assigned, the Kasambahay will no longer be treated as such but as a
regular employee of the
establishment.
• What are the rules on termination of Kasambahay?
a. Pre-termination of employment. – The following rules shall be observed:
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2. sells any goods, articles or materials for the purpose of having such
goods or articles processed in or
about a home and then repurchases them himself or through another
after such processing.
f. “Contractor” or “subcontractor.” - It refers to any person who, for the
account or benefit of an
employer, delivers or causes to be delivered to a homeworker, goods or articles to
be processed in or about his home
and thereafter to be returned, disposed of or distributed in accordance with the
direction of the employer.
g. “Processing.” - It refers to manufacturing, fabricating, finishing,
repairing, altering, packing, wrapping
or handling in any way connected with the production or preparation of an article
or material.
•How is homework paid?
Immediately upon receipt of the finished goods or articles, the employer
is required to pay the homeworker
or the contractor or subcontractor, as the case may be, for the work performed less
the corresponding homeworker’s
share of SSS, PhilHealth and ECC premium contributions which should be remitted by
the contractor or
subcontractor or employer to the SSS with the employer’s share. However, where
payment is made to a contractor
or subcontractor, the homeworker should likewise be paid immediately after the
goods or articles have been
collected from the workers.
•What are prohibited homeworks?
No homework shall be performed on the following:
1. Explosives, fireworks and articles of like character;
2. Drugs and poisons; and
3. Other articles, the processing of which requires exposure to toxic
substances.
5
NIGHT WORKERS
(R.A. NO. 10151)
• What is the new law on night work?
R.A. No. 10151 [JUNE 21, 2011].
a. Significance of the law.
R.A. No. 10151 has repealed Article 130 [Nightwork Prohibition] and
Article 131 [Exceptions] of the
Labor Code and accordingly renumbered the same articles. Additionally, it has
inserted a new Chapter V of Title III
of Book III of the Labor Code entitled “Employment of Night Workers” which
addresses the issue on nightwork of
all employees, including women workers. Chapter V covers newly renumbered Articles
154 up to 161 of the Labor
Code.
b. Coverage of the law.
The law on nightwork applies not only to women but to all persons, who
shall be employed or permitted
or suffered to work at night, except those employed in agriculture, stock raising,
fishing, maritime transport and
inland navigation, during a period of not less than seven (7) consecutive hours,
including the interval from
midnight to five o'clock in the morning, to be determined by the DOLE Secretary,
after consulting the workers’
representatives/labor organizations and employers.
c. Night worker, meaning.
"Night worker" means any employed person whose work covers the period from
10 o'clock in the
evening to 6 o'clock the following morning provided that the worker performs no
less than seven (7) consecutive
hours of work.
d. Mandatory facilities.
(1) Suitable first-aid and emergency facilities as provided for under
Rule 1960 (Occupational Health
Services) of the Occupational Safety and Health Standards (OSHS);
(2) Lactation station in required companies pursuant to R.A. No. 10028
(The Expanded Breastfeeding
Promotion Act of 2009);
(3) Separate toilet facilities for men and women;
(4) Facility for eating with potable drinking water; and
(5) Facilities for transportation and/or properly ventilated temporary
sleeping or resting quarters, separate
for male and female workers, shall be provided except where any of
the following circumstances is
present:
i. Where there is an existing company guideline, practice or policy,
CBA or any similar agreement
between management and workers providing for an equivalent or
superior benefit; or
ii. Where the start or end of the night work does not fall within 12
midnight to 5 o'clock in the
morning; or
iii. Where the workplace is located in an area that is accessible 24
hours to public transportation;
iv. Where the number of employees does not exceed a specified number
as may be provided for by
the DOLE Secretary in subsequent issuances.
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------------oOo------------
SYLLABUS
MAJOR TOPIC 4
POST EMPLOYMENT
A.
EMPLOYER-EMPLOYEE RELATIONSHIP
1.
TESTS TO DETERMINE EMPLOYER-EMPLOYEE RELATIONSHIP
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Four-Fold Test
2 Id.
3 Id.
4 Id.
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of the performance evaluation conducted on the employee which forms as the basis
for deciding to terminate the
probationary employment.
• When should termination of probationary employment be made?
Termination to be valid must be done prior to lapse of probationary
period. Termination a few days after
lapse of probationary period cannot be done without due process as he has already
become a regular employee by
that time.
b.
REGULAR EMPLOYMENT
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3.
JOB CONTRACTING
Here are the elements based on law, Department Order No. 174 and
jurisprudence:
(a) The contractor is engaged in a distinct and independent business and
undertakes to perform the job
or work on its own responsibility, according to its own manner and
method;
(b) The contractor has substantial capital to carry out the job farmed out
by the principal on his own
account, manner and method, investment in the form of tools,
equipment, machinery and
supervision;
(c) In performing the work farmed out, the contractor is free from the
control and/or direction of the
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Example:
• What is the amount of SUBSTANTIAL CAPITAL required under the new Rules?
According to Department Order No. 174, Series of 2017 (issued on March
16, 2017), the following
consists of substantial capital:
1. In the case of corporations, partnerships or cooperatives – paid-up
capital stocks/shares of at least
P5 Million; or
2. In the case of single proprietorship - a net worth of at least P5
Million.
• “Substantial capital” and “investment in tools, etc.” are two separate
requirements.
“Substantial capital” and “investment in tools, equipment, implements,
machineries and work premises”
should be treated as two (2) distinct and separate requirements in
determining whether there is legitimate
job contracting arrangement. It is enough that only one of these two
requisites is complied with to make
the job contracting arrangement legitimate.
• May individuals engage in legitimate job contracting?
Yes. Legitimate job contracting may not only be engaged by corporation,
partnership or single proprietorship.
Individuals may become legitimate job contractors themselves for as long as
they have SPECIAL SKILLS or
TALENTS.
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NO. They need not be registered as independent contractors with DOLE; they
need not have substantial capital
(such as the P5 Million stated above). All that they are required is to have
their tools consisting of SPECIAL
SKILL, TALENT or EXPERTISE.
LABOR-ONLY CONTRACTING.
Based on law, Department Order No. 174 and jurisprudence, the following
are the elements:
(a) The contractor does not have either (i) SUBSTANTIAL CAPITAL or (ii)
INVESTMENTS
in the form of tools, equipment, machineries, supervision, work
premises, among others, AND the
contractor's employees recruited and placed are performing
activities which are directly
related to the main business operation of the principal;
or
(b) The contractor does not exercise the right to control over the
performance of the work of the
employee.
NOTE: - There is labor-only contracting even if only one of the two (2)
elements above is present.
- An unregistered contractor is presumed to be a labor-only
contractor. Registration should be
made with the DOLE.
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The chief distinctions between legitimate job contracting, on the one hand,
and the prohibited labor-only
contracting, on the other, may be summed up as follows:
1. In the former, no employer-employee relationship exists between the
contractual employees of the job
contractor and the principal; while in the latter, an employer-employee
relationship is created by law
between the principal and the employees supplied by the labor-only
contractor.
2. In the former, the principal is considered only an “indirect employer”;
while in the latter, the principal
is considered the “direct employer” of the employees supplied by the
labor-only contractor.
3. In the former, the solidary obligation of the principal and the
legitimate job contractor is only for a
limited purpose, that is, to pay the wages of the contractor’s employees
supplied to the principal..
Other than this obligation of paying the wages, the principal is not
responsible for any claim made by
the contractor’s employees; while in the latter, the principal becomes
solidarily liable with the labor-
only contractor to the latter’s employees in the same manner and extent
that the principal is liable to
employees directly hired by him/her.
• What are OTHER ILLICIT FORMS OF EMPLOYMENT IN D.O. 174, Series of 2017, (IN
ADDITION TO
LABOR-ONLY CONTRACTING)?
The following are considered as such (formerly called “PROHIBITIONS” under
previous Department
Orders):
a) When the principal farms out work to a “Cabo” which term refers to a
person or group of persons or to
a labor group which, under the guise of a labor organization,
cooperative or any entity, supplies workers
to an employer, with or without any monetary or other consideration,
whether in the capacity of an
agent of the employer or as an ostensible independent contractor.
b) Contracting out of job or work through an “In-house Agency” which term
refers to a contractor which
is owned, managed, or controlled, directly or indirectly, by the
principal or one where the principal
owns/represents any share of stock, and which operates solely or mainly
for the principal.
c) Contracting out of job or work through an “In-house Cooperative” which
merely supplies workers to
the principal. An “In-house Cooperative” refers to a cooperative which
is managed, or controlled
directly or indirectly by the principal or one where the principal or
any of its officers owns/represents
any equity or interest, and which operates solely or mainly for the
principal.
d) Contracting out of a job or work by reason of a strike or lockout,
whether actual or imminent.
e) Contracting out of a job or work being performed by union members and
such will interfere with,
restrain or coerce employees in the exercise of their rights to self-
organization as provided in
Article 259 [248] of the Labor Code, as amended.
f) Requiring the contractor's/subcontractor's employees to perform
functions which are currently being
performed by the regular employees of the principal.
g) Requiring the contractor's/subcontractor's employees to sign, as a
precondition to employment or
continued employment, an antedated resignation letter; a blank payroll;
a waiver of labor
standards including minimum wages and social or welfare benefits; or a
quitclaim releasing the
principal or contractor from liability as to payment of future claims;
or require the employee to
become member of a cooperative.
h) Repeated hiring by the contractor/subcontractor of employees under an
employment contract of short
duration.
i) Requiring employees under a contracting/subcontracting arrangement to
sign a contract fixing the
period of employment to a term shorter than the term of the Service
Agreement, unless the contract
is divisible into phases for which substantially different skills are
required and this is made known to the
employee at the time of engagement.
j) Such other practices, schemes or employment arrangements designed to
circumvent the right of
workers to security of tenure.
B.
TERMINATION OF EMPLOYMENT
1.
TERMINATION BY EMPLOYEE
(RESIGNATION)
a.
RESIGNATION VERSUS CONSTRUCTIVE DISMISSAL
i.
RESIGNATION
• What are the two (2) kinds of resignation under the Labor Code (Article 300
[285])?
(a) Voluntary resignation - without just cause; or
(b) Involuntary resignation - with just cause.
• What are the distinctions between the two?
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ii.
CONSTRUCTIVE DISMISSAL
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2.
TERMINATION BY EMPLOYER
1. REQUISITES.
For misconduct or improper behavior to be a just cause for dismissal, the
following requisites must concur:
II.
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Prof. Joselito Guianan Chan
CHAN ROBLES ONLINE BAR REVIEW
www.chanroblesbar.com
INSUBORDINATION
OR WILLFUL DISOBEDIENCE OF LAWFUL ORDERS
1. REQUISITES.
One of the fundamental duties of an employee is to obey all reasonable
rules, orders and instructions of the
employer. In order to validly invoke this ground, the following requisites must be
complied with, to wit:
1. The employee’s assailed conduct must have been willful or intentional,
the willfulness being
characterized by a wrongful and perverse attitude; and
2. The order violated must be based on a reasonable and lawful company
rule, regulation or policy and
made known to the employee and must pertain to the duties for which he
has been engaged to discharge.
III.
GROSS AND HABITUAL NEGLECT OF DUTIES
1. REQUISITES.
The following are the requisites:
(1) There must be negligence which is gross and/or habitual in character;
and
(2) It must be work-related as would make him unfit to work for his
employer.
2. SOME PRINCIPLES ON GROSS AND HABITUAL NEGLECT OF DUTIES.
• Simple negligence is not sufficient to terminate employment.
• The negligence must be gross in character which means absence of that diligence
that an ordinarily prudent man
would use in his own affairs.
• As a general rule, negligence must be both gross and habitual to be a valid
ground to dismiss.
• Habituality may be disregarded if negligence is gross or the damage or loss is
substantial. “Habitual
negligence” implies repeated failure to perform one’s duties for a period of
time, depending upon the
circumstances.
• Actual damage, loss or injury is not an essential requisite.
• Gross negligence may result to loss of trust and confidence.
• Absences, if authorized, cannot be cited as a ground to terminate employment.
• Tardiness or absenteeism, if not habitual, cannot be cited as a ground to
terminate employment.
• Tardiness or absenteeism, if habitual, may be cited as a ground to terminate
employment.
• Tardiness or absenteeism, if habitual, may be tantamount to serious misconduct.
• Absences or tardiness due to emergency, ailment or fortuitous event are
justified and may not be cited as just
cause to terminate employment.
• Unsatisfactory or poor performance, inefficiency and incompetence are
considered just causes for dismissal
only if they amount to gross and habitual neglect of duties.
IV.
ABANDONMENT OF WORK
1. CONCEPT.
Abandonment is not provided for in the Labor Code but it is
jurisprudentially considered a form of neglect
of duty; hence, a just cause for termination of employment under Article 297(b)
[282(b)] of the Labor Code.
2. REQUISITES.
To constitute abandonment, two (2) elements must concur, namely:
1) The employee must have failed to report for work or must have been
absent without valid or justifiable
reason; and
2) There must have been a clear intention on the part of the employee to
sever the employer-employee
relationship manifested by some overt act.
3. SOME PRINCIPLES ON ABANDONMENT.
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Chan
CHAN ROBLES ONLINE BAR
REVIEW
www.chanroblesbar.com
V.
FRAUD
1. REQUISITES.
The following are the requisites of this ground:
1. There must be an act, omission, or concealment;
2. The act, omission or concealment involves a breach of legal duty, trust,
or confidence justly reposed;
3. It must be committed against the employer or his/her representative; and
4. It must be in connection with the employees' work.1
2. SOME PRINCIPLES ON FRAUD.
• Failure to deposit collection constitutes fraud.
• Lack of damage or losses is not necessary in fraud cases. The fact that the
employer did not suffer losses from
the dishonesty of the dismissed employee because of its timely discovery does
not excuse the latter from any
culpability.
• Lack of misappropriation or shortage is immaterial in case of unauthorized
encashment of personal checks by
teller and cashier.
• Restitution does not have absolutory effect.
VI.
WILLFUL BREACH OF TRUST AND CONFIDENCE
1 Per latest DOLE Department Order No. 147-15, series of 2015, September 07, 2015.
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1. REQUISITES.
For the doctrine of loss of trust and confidence to apply, the following
requisites must be satisfied:
(1) The employee holds a position of trust and confidence;
(2) There exists an act justifying the loss of trust and confidence,
which means that the act that betrays the
employer’s trust must be real, i.e., founded on clearly established
facts;
(3) The employee’s breach of the trust must be willful, i.e., it was done
intentionally, knowingly and
purposely, without justifiable excuse; and
(4) The act must be in relation to his work which would render him unfit
to perform it.
2. GUIDELINES.
As a safeguard against employers who indiscriminately use “loss of trust
and confidence” to justify
arbitrary dismissal of employees, the Supreme Court, in addition to the above
elements, came up with the following
guidelines for the application of the doctrine:
(1) The loss of confidence must not be simulated;
(2) It should not be used as a subterfuge for causes which are illegal,
improper or unjustified;
(3) It may not be arbitrarily asserted in the face of overwhelming
evidence to the contrary; and
(4) It must be genuine, not a mere afterthought, to justify earlier
action taken in bad faith.
The foregoing guidelines have been prescribed by the Supreme Court due to
the subjective nature of this
ground which makes termination based on loss of trust and confidence prone to
abuse.
3. SOME PRINCIPLES ON THE DOCTRINE OF LOSS OF TRUST AND CONFIDENCE.
• Employee’s position must be reposed with trust and confidence.
• “Position of trust and confidence” is one where a person is entrusted with
confidence on delicate matters, or
with the custody, handling, or care and protection of the employer’s property.
• Two (2) classes of positions of trust. The first class consists of managerial
employees or those who, by the
nature of their position, are entrusted with confidential and delicate matters
and from whom greater fidelity to
duty is correspondingly expected. They refer to those vested with the powers or
prerogatives to lay down and
execute management policies and/or to hire, transfer suspend, lay-off, recall,
discharge, assign or discipline
employees or to effectively recommend such managerial actions. Their primary
duty consists of the
management of the establishment in which they are employed or of a department
or a subdivision thereof.
The second class consists of fiduciary rank-and-file employees who, though
rank-and-file, are routinely
charged with the custody, handling or care and protection of the employer's
money or property, or entrusted with
confidence on delicate matters, and are thus classified as occupying positions
of trust and confidence. Included
under this class are “cashiers, auditors, property custodians, or those who, in
the normal and routine exercise of
their functions, regularly handle significant amounts of [the employer’s] money
or property.”
• Rules on termination of managerial and supervisory employees different from
those applicable to rank-
and-file employees. Thus, with respect to rank-and-file personnel, loss of
trust and confidence as a ground for
valid dismissal requires proof of involvement in the alleged events in question
and that mere uncorroborated
assertions and accusations by the employer will not be sufficient. But as
regards a managerial employee, the
mere existence of a basis for believing that he has breached the trust of his
employer would suffice for his
dismissal.
• There must be “some basis” for the loss of trust and confidence which means
that there is reasonable ground to
believe, if not to entertain the moral conviction, that the concerned employee
is responsible for the misconduct
and that the nature of his participation therein rendered him absolutely
unworthy of trust and confidence
demanded by his position.
• Dismissal due to feng shui mismatch is not a valid ground to lose trust and
confidence.
• Command responsibility of managerial employees is a ground to dismiss.
• Confidential employee may be dismissed for loss of trust and confidence.
• Grant of promotions and bonuses negates loss of trust and confidence.
• Long years of service, absence of derogatory record and small amount involved
are deemed inconsequential
insofar as loss of trust and confidence is concerned.
• Dropping of criminal charges or acquittal in a criminal case arising from the
same act does not affect the
validity of dismissal based on loss of trust and confidence.
• Full restitution does not absolve employee of offense which resulted in the
loss of trust and confidence.
VII.
COMMISSION OF CRIME OR OFFENSE
1. REQUISITES.
The following are the requisites for the valid invocation of this ground:
1. A crime or offense was committed by the employee;
2. It was committed against any of the following persons:
(a) His employer;
(b) Any immediate member of his employer’s family; or
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VIII.
OTHER ANALOGOUS CAUSES
1. ANALOGOUS CAUSES UNDER ESTABLISHED JURISPRUDENCE.
The following may be cited as analogous causes:
1) Violation of company rules and regulations.
2) Theft of property owned by a co-employee, as distinguished from
theft of property owned by the
employer.
3) Incompetence, inefficiency or ineptitude.
4) Failure to attain work quota.
5) Failure to comply with weight standards of employer.
6) “Attitude problem” is analogous to loss of trust and confidence.
IX.
TERMINATION DUE TO ENFORCEMENT OF
UNION SECURITY CLAUSE
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• Can the employer adopt the due process afforded by the SEBA to the employee
in expelling him from his
membership in the SEBA?
No. The employer cannot adopt the due process afforded by the SEBA as its
own due process for the simple
reason that such due process concerns the termination of membership of the employee
from the SEBA. The due
process in above-cited Alabang Country Club, Inc. v. NLRC,1 is required for a
different purpose - to terminate his
employment.
OTHER PRINCIPLES `ON TERMINATION
PER DEPARTMENT ORDER NO. 147-15, SERIES OF 2015
(07 SEPTEMBER 2015):
2
➢ An employee found positive for use of dangerous drugs shall be dealt with
administratively which shall be a
ground for suspension or termination.3
➢ An employee shall not be terminated from work based on actual, perceived or
suspected HIV status.4
➢ An employee shall not be terminated on basis of actual, perceived or suspected
Hepatitis B status.5
➢ An employee who has or had tuberculosis shall not be discriminated against.
He/she shall be entitled to work for
as long as they are certified by the company's accredited health provider as
medically fit and shall be restored to
work as soon as his/her illness is controlled.6
➢ An employee may also be terminated based on the grounds provided for under the
CBA.
b.
AUTHORIZED CAUSES
3 DOLE Department Order No. 53, Series of 2003 in relation to the IRR of R.A. 9165.
5 DOLE Department Advisory No.5, Series of 2010 Part III C1. par. c.
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1 Per latest DOLE Department Order No. 147-15, series of 2015, September 07, 2015.
2 Id.
3 Id.
4 Balasabas v. NLRC, G.R. No. 85286, August 24,1992; Central Azucarerra dela
Carlota v. NLRC, G.R. No. 100092, December 29, 1995.
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BAR REVIEW
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IV.
CLOSURE OR CESSATION OF BUSINESS
OPERATIONS
• Can an employer close its business even if it is not suffering from business
losses?
Yes. In fact, closure involves two (2) situations:
(a) When NOT due to serious business losses or financial reverses; or
(b) When due to serious business losses or financial reverses
It is only in the first that payment of separation pay is required. No such
requirement is imposed in the
second.
▪ Principle of closure under Article 283 applies in cases of both total and
partial closure or cessation of business
operations. Management may choose to close only a branch, a department, a
plant, or a shop.
▪ Closure of department or section and hiring of workers supplied by independent
contractor as replacements is
valid.
▪ Relocation of business may amount to cessation of operations.
▪ Closure of business to merge or consolidate with another or to sell or dispose
all of its assets, held valid.
▪ Audited financial statements necessary only in closure due to losses.
V.
DISEASE
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2. THE FUJI RULE – THE EMPLOYEE SHOULD BE GIVEN THE CHANCE TO PRESENT
COUNTERVAILING MEDICAL CERTIFICATES.
Subsequent to Deoferio, another 2014 case, Fuji Television Network, Inc.
v. Arlene S. Espiritu,1 has
further expounded on the due process requirement in termination due to disease,
this time by categorically
specifying the right of the ailing employee to present countervailing evidence in
the form of medical certificates to
prove that his dismissal due to disease is not proper and therefore illegal.
Respondent Arlene was petitioner’s news correspondent/producer “tasked to
report Philippine news to Fuji
through its Manila Bureau field office.” She was successively given yearly fixed-
term employment contracts until
she was diagnosed with lung cancer sometime in January 2009 when the Chief of News
Agency of Fuji informed her
“that the company will have a problem renewing her contract” since it would be
difficult for her to perform her job.
She, however, “insisted that she was still fit to work as certified by her
attending physician.” Subsequently, Arlene
and Fuji signed a non-renewal contract where it was stipulated that her contract
would no longer be renewed after its
expiration on May 31, 2009 and that the parties release each other from liabilities
and responsibilities under the
employment contract. Arlene received her unpaid salaries and bonuses but she
affixed her signature on the non-
renewal contract with the initials “U.P.” for “under protest.” The day after Arlene
signed the non-renewal contract,
she filed a complaint for illegal dismissal and attorney’s fees with the Labor
Arbiter, alleging that she was forced to
sign the non-renewal contract when Fuji came to know of her illness and that Fuji
withheld her salaries and other
benefits for March and April 2009 when she refused to sign. Arlene claimed that she
was left with no other recourse
but to sign the non-renewal contract, and it was only upon signing that she was
given her salaries and bonuses, in
addition to separation pay equivalent to 4 years.
The Supreme Court declared respondent Arlene as having been
constructively dismissed. It was likewise
held here that respondent was not afforded due process, thus:
“There is no evidence showing that Arlene was accorded due process. After
informing her
employer of her lung cancer, she was not given the chance to present
medical certificates. Fuji
immediately concluded that Arlene could no longer perform her duties
because of chemotherapy. It
did not ask her how her condition would affect her work. Neither did it
suggest for her to take a
leave, even though she was entitled to sick leaves. Worse, it did not
present any certificate from a
competent public health authority. What Fuji did was to inform her that
her contract would no
longer be renewed, and when she did not agree, her salary was withheld.
Thus, the Court of
Appeals correctly upheld the finding of the National Labor Relations
Commission that for failure of
Fuji to comply with due process, Arlene was illegally dismissed.”
▪ What are some salient points to consider under this ground of disease?
▪ If the disease or ailment can be cured within the period of six (6) months with
proper medical treatment, the
employer should not terminate the employee but merely ask him to take a leave of
absence. The employer
should reinstate him to his former position immediately upon the restoration of
his normal health.
▪ In case the employee unreasonably refuses to submit to medical examination
or treatment upon being
requested to do so, the employer may terminate his services on the ground
of insubordination or willful
disobedience of lawful order.
▪ A medical certificate issued by a company’s own physician is not an
acceptable certificate for purposes of
terminating an employment based on Article 284, it having been issued not
by a “competent public health
authority,” the person referred to in the law.
▪ A “competent public health authority” refers to a government doctor whose
medical specialization
pertains to the disease being suffered by the employee. For instance, if
the employee suffers from
tuberculosis, the medical certificate should be issued by a government-
employed pulmonologist who is
competent to make an opinion thereon. If the employee has cardiac symptoms,
the competent physician in
this case would be a cardiologist.
▪ The medical certificate should be procured by the employer and not by the
employee.
3.
DUE PROCESS
(a) Twin-Notice
Requirement
(b) Hearing; Ample Opportunity to
be Heard
1 Fuji Television Network, Inc. v. Arlene S. Espiritu, G.R. Nos. 204944-45, Dec.
03, 2014.
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▪ What is the King of Kings Transport doctrine on just cause procedural due
process?
Based on this doctrine which was enunciated in the 2007 case of King of Kings
Transport, Inc. v.
Mamac,2 the following requirements should be complied with in just cause
termination:
(1) First written notice.
The first written notice to be served on the employee should:
a) Contain the specific causes or grounds for termination against
him;
b) Contain a directive that the employee is given the opportunity
to submit his written explanation
within the reasonable period of FIVE (5) CALENDAR DAYS from
receipt of the notice:
1) to enable him to prepare adequately for his defense;
2) to study the accusation against him;
3) to consult a union official or lawyer;
4) to gather data and evidence; and
5) to decide on the defenses he will raise against the
complaint.
c) Contain a detailed narration of the facts and circumstances
that will serve as basis for the charge
against the employee. This is required in order to enable him
to intelligently prepare his explanation
and defenses. A general description of the charge will not
suffice.
d) Specifically mention which company rules, if any, are violated
and/or which among the grounds
under Article 282 is being charged against the employee.
(2) Hearing required,
After serving the first notice, the employer should schedule and conduct a
hearing or conference wherein
the employee will be given the opportunity to:
1) explain and clarify his defenses to the charge/s against him;
2) present evidence in support of his defenses; and
3) rebut the evidence presented against him by the management.
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1.
REINSTATEMENT
a.
REINSTATEMENT PENDING APPEAL
(Article 229 [223], Labor Code)
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LIMITED BACKWAGES
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C.
RETIREMENT
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• What is the minimum years of service required for entitlement under the law?
Five (5) years is the minimum years of service that must be rendered by
the employee before he can avail
of the retirement benefits upon reaching optional or compulsory retirement age
under Article 287.
• What is the retirement age of underground mine workers?
The rule is different. The optional retirement age of underground mine
workers is 50 years of age; while
the compulsory retirement age is 60 years old.
• What is the minimum number of years of service required of underground mine
workers?
Minimum years of service is also 5 years.
• Are the retirement benefits of underground mine workers similar to ordinary
retirees?
Yes. In fact, other than the retirement age, all other requirements as
well as benefits provided in the law are
applicable to underground mine workers.
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ENTITLEMENT OF EMPLOYEES
DISMISSED FOR JUST CAUSE TO RETIREMENT BENEFITS
General rule – Entitled because employee has acquired vested right over the
retirement benefits.
In this case, the Supreme Court ordered the payment to the retrenched
employees of both the
separation pay for retrenchment embodied in the CBA as well as the
retirement pay
provided under a separate Retirement Plan. The reason is that these two
are not mutually
exclusive. There is nothing in the CBA nor in the Retirement Plan that
states that an employee
who had received separation pay would no longer be entitled to
retirement benefits or that
collection of retirement benefits was prohibited if the employee had
already received separation
pay
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The retirement plan provides that the employee shall be entitled to either
the retirement benefit
provided therein or the separation pay provided by law, whichever is higher,
the employee cannot
be entitled to both benefits.
------------oOo------------
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SYLLABUS
MAJOR TOPIC 5
MANAGEMENT PREROGATIVES
• What are management prerogatives?
Management prerogatives are granted to the employer to regulate every
aspect of their business, generally
without restraint in accordance with their own discretion and judgment. This
privilege is inherent in the right of
employers to control and manage their enterprise effectively. Such aspects of
employment include hiring, work
assignments, working methods, time, place and manner of work, tools to be used,
processes to be followed,
supervision of workers, working regulations, transfer of employees, lay-off of
workers and the discipline, dismissal
and recall of workers.
• What are the limitations to the exercise of these prerogatives?
1. Limitations imposed by:
a) law;
b) CBA;
c) employment contract;
d) employer policy;
e) employer practice; and
f) general principles of fair play and justice.
2. It is subject to police power.
3. Its exercise should be without abuse of discretion.
4. It should be done in good faith and with due regard to the rights of
labor.
A.
DISCIPLINE
B.
TRANSFER OF EMPLOYEES
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C.
PRODUCTIVITY STANDARD
Illustrative cases:
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D.
BONUS
E.
CHANGE OF WORKING HOURS
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1 G.R. No. 118978, May 23, 1997, 272 SCRA 596, 605.
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need industry. Since the products sold by the companies were more or less the same,
there was nothing peculiar or
unique to protect. Second, respondent did not invest in petitioner’s training or
improvement. At the time petitioner
was recruited, she already possessed the knowledge and expertise required in the
pre-need industry and respondent
benefited tremendously from it. Third, a strict application of the non-involvement
clause would amount to a
deprivation of petitioner’s right to engage in the only work she knew.
In affirming the validity of the Non-Involvement Clause, the Supreme Court
ratiocinated as follows:
“xxx a non-involvement clause is not necessarily void for being in
restraint of trade as long as there are
reasonable limitations as to time, trade, and place.
“In this case, the non-involvement clause has a time limit: two years
from the time petitioner’s
employment with respondent ends. It is also limited as to trade, since it
only prohibits petitioner from
engaging in any pre-need business akin to respondent’s. It is limited as to
place since the prohibition covers only
Hongkong and Asean operations.
“More significantly, since petitioner was the Senior Assistant Vice-
President and Territorial Operations Head in
charge of respondent’s Hongkong and Asean operations, she had been privy to
confidential and highly sensitive
marketing strategies of respondent’s business. To allow her to engage in a
rival business soon after she leaves would
make respondent’s trade secrets vulnerable especially in a highly competitive
marketing environment. In sum, we
find the non-involvement clause not contrary to public welfare and not
greater than is necessary to afford a
fair and reasonable protection to respondent.
“Thus, as held by the trial court and the Court of Appeals, petitioner
is bound to pay respondent P100,000 as
liquidated damages. While we have equitably reduced liquidated damages in
certain cases, we cannot do so in this
case, since it appears that even from the start, petitioner had not shown the
least intention to fulfill the non-
involvement clause in good faith.”
------------oOo------------
SYLLABUS
MAJOR TOPIC 6
A.
SSS LAW
(R.A. No. 8282)
• Who are covered employers?
a. An employer or any person who uses the services of another person in
business, trade, industry or any
undertaking.
b. A social, civic, professional, charitable and other non-profit
organizations which hire the services of
employees are considered “employers.”
c. A foreign government, international organization or its wholly-owned
instrumentality such as an
embassy in the Philippines, may enter into an administrative agreement
with the SSS for the coverage of
its Filipino employees.
• Who are compulsorily covered employees?
a. A private employee, whether permanent, temporary or provisional, who is
not over 60 years old.
b. A domestic worker or kasambahay who has rendered at least one (1) month
of service.
c. A Filipino seafarer upon the signing of the standard contract of
employment between the seafarer and
the manning agency which, together with the foreign ship owner, act as
employers.
d. An employee of a foreign government, international organization or their
wholly-owned instrumentality
based in the Philippines, which entered into an administrative agreement
with the SSS for the coverage
of its Filipino workers.
e. The parent, spouse or child below 21 years old of the owner of a single
proprietorship business.
• Are self-employed persons covered?
Yes. A self-employed person, regardless of trade, business or occupation,
with an income of at least P1,000
a month and not over 60 years old, should register with the SSS. Included, but not
limited to, are the following self-
employed persons:
a. Self-employed professionals;
b. Business partners, single proprietors and board directors;
c. Actors, actresses, directors, scriptwriters and news reporters who are
not under an employer-employee
relationship;
d. Professional athletes, coaches, trainers and jockeys;
e. Farmers and fisherfolks; and
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CHAN ROBLES ONLINE BAR REVIEW
www.chanroblesbar.com
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PRE-WEEK NOTES ON LABOR LAW FOR THE 2017 BAR
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Prof. Joselito Guianan Chan
CHAN ROBLES ONLINE BAR REVIEW
www.chanroblesbar.com
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PRE-WEEK NOTES ON LABOR LAW FOR THE 2017 BAR EXAMS
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SYLLABUS
MAJOR TOPIC 7
LABOR RELATIONS
A.
RIGHT TO SELF-ORGANIZATION
1.
WHO MAY EXERCISE THE RIGHT
• Who are eligible to join, form or assist a labor organization for purposes of
collective bargaining?
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4.
DOCTRINE OF NECESSARY IMPLICATION
5.
RIGHTS AND CONDITIONS OF MEMBERSHIP
a.
NATURE OF RELATIONSHIP
a.1.
AFFILIATION AND DISAFFILIATION OF THE
LOCAL UNION FROM THE MOTHER UNION
1. AFFILIATION.
a. Mother union.
In relation to an affiliate, the federation or national union is commonly
known as the “mother union.”
This term is not found in law but oftentimes, the Supreme Court uses this term to
describe a federation or a national
union.
b. Affiliate.
An “affiliate” refers to:
(1) An independent union affiliated with a federation or a national
union; or
(2) A local chapter which has been subsequently granted independent
registration but did not disaffiliate
from the federation or national union which created it.
c. A chartered local/local chapter, not an affiliate.
Based on the above definition and description, technically, a local
chapter created through the mode of
chartering by a mother union under Article 234-A of the Labor Code, cannot be
properly called an “affiliate” if it
has not acquired any independent registration of its own.
The contract that binds a mother union and an affiliate is called
“Contract of Affiliation”; while that of a
mother union and the chartered local/local chapter is called “Charter Certificate.”
d. Purpose of affiliation.
The purpose is to further strengthen the collective bargaining leverage
of the affiliate. No doubt, the
purpose of affiliation by a local union with a mother union (federation or national
union) is to increase by collective
action its bargaining power in respect of the terms and conditions of labor.
e. Principal-agent relationship.
To iterate, the mother union, acting for and in behalf of its affiliate,
has the status of an agent while the
local union remains the principal – the basic unit of the association free to serve
the common interest of all its
members subject only to the restraints imposed by the constitution and by-laws of
the association.
f. Some principles on affiliation.
• Independent legal personality of an affiliate union is not affected by
affiliation.
• Affiliate union becomes subject of the rules of the federation or
national union.
• The appendage of the acronym of the federation or national union after
the name of the affiliate union in
the registration with the DOLE does not change the principal-agent
relationship between them. Such
inclusion of the acronym is merely to indicate that the local union is
affiliated with the federation or
national union at the time of the registration. It does not mean that
the affiliate union cannot
independently stand on its own.
• The fact that it was the federation which negotiated the CBA does not
make it the principal and the
affiliate or local union which it represents, the agent.
• In case of illegal strike, the local union, not the mother union, is
liable for damages.
2. DISAFFILIATION.
a. Right to disaffiliate.
The right of the affiliate union to disaffiliate from its mother
federation or national union is a
constitutionally-guaranteed right which may be invoked by the former at any time.
It is axiomatic that an affiliate
union is a separate and voluntary association free to serve the interest of all its
members - consistent with the
freedom of association guaranteed in the Constitution.
b. Disaffiliation of independently-registered union and local chapter,
distinguished.
The disaffiliation of an independently-registered union does not affect
its legitimate status as a labor
organization. However, the same thing may not be said of a local chapter which has
no independent registration
since its creation was effected pursuant to the charter certificate issued to it by
the federation or national union. Once
a local chapter disaffiliates from the federation or national union which created
it, it ceases to be entitled to the rights
and privileges granted to a legitimate labor organization. Hence, it cannot, by
itself, file a petition for certification
election.
c. Some principles on disaffiliation.
▪ Disaffiliation does not divest an affiliate union of its legal
personality.
▪ Disaffiliation of an affiliate union is not an act of disloyalty.
▪ Disaffiliation for purposes of forming a new union does not terminate
the status of the members
thereof as employees of the company. By said act of disaffiliation, the
employees who are members of
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the local union did not form a new union but merely exercised their
right to register their local union.
The local union is free to disaffiliate from its mother union.
▪ Disaffiliation should be approved by the majority of the union
members.
▪ Disaffiliation terminates the right to check-off federation dues. The
obligation to check-off federation
dues is terminated with the valid disaffiliation of the affiliate union
from the federation with which it
was previously affiliated.
▪ Disaffiliation does not affect the CBA. It does not operate to amend
it or change the administration of
the contract.
▪ Disaffiliating from the federation and entering into a CBA with the
employer does not constitute an
unfair labor practice.
▪ Disaffiliation is not a violation of the union security clause.
a.2.
SUBSTITUTIONARY DOCTRINE
1. CHANGE OF BARGAINING REPRESENTATIVE DURING THE LIFE OF A CBA.
It simply refers to the substitution of the existing SOLE AND EXCLUSIVE
BARGAINING AGENT
(“SEBA” or simply “bargaining agent”) by a newly certified SEBA which defeated it
in the certification election.
As new SEBA, it is duty-bound to respect the existing CBA but it can renegotiate
for new terms and conditions
thereof.
2. EFFECT OF SUBSTITUTIONARY DOCTRINE ON THE DEPOSED UNION’S PERSONAL
UNDERTAKINGS.
In case of change of bargaining agent under the substitutionary doctrine,
the new bargaining agent is not
bound by the personal undertakings of the deposed union like the “no strike, no
lockout” clause in a CBA which
is the personal undertaking of the bargaining agent which negotiated it.
3. SOME PRINCIPLES ON SUBSTITUTIONARY DOCTRINE.
• The substitutionary doctrine cannot be invoked to subvert an existing CBA, in
derogation of the principle of
freedom of contract. The substitution of a bargaining agent cannot be allowed
if the purpose is to subvert an
existing CBA freely entered into by the parties. Such act cannot be sanctioned
in law or in equity as it is in
derogation of the principle underlying the freedom of contract and good faith
in contractual relations.
• The substitutionary doctrine is applicable also to a situation where the local
union, which was created through
the process of chartering by the mother union, disaffiliates from the latter
after it secured an independent
registration. The local union will thus be substituted to that of the
federation which negotiated the CBA as in
Elisco-Elirol Labor Union [NAFLU] v. Noriel, where petitioner union was
created through the mode of
chartering by the National Federation of Labor Unions (NAFLU) and later, it
secured its independent
registration with the BLR and disaffiliated with NAFLU by virtue of a
resolution by its general membership.
B.
BARGAINING UNIT
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2. GLOBE DOCTRINE.
This principle is based on the will of the employees. It is called Globe
doctrine because this principle was
first enunciated in the United States case of Globe Machine and Stamping Co., 5
where it was ruled, in defining the
appropriate bargaining unit, that in a case where the company’s production workers
can be considered either as a
single bargaining unit appropriate for purposes of collective bargaining or as
three (3) separate and distinct
bargaining units, the determining factor is the desire of the workers themselves.
Consequently, a certification
election should be held separately to choose which representative union will be
chosen by the workers.
International School Alliance of Educators [ISAE] v. Quisumbing.6 - The
Supreme Court ruled here
that foreign-hired teachers do not belong to the bargaining unit of the local-hires
because the former have not
indicated their intention to be grouped with the latter for purposes of collective
bargaining. Moreover, the collective
bargaining history of the school also shows that these groups were always treated
separately.
3. COLLECTIVE BARGAINING HISTORY DOCTRINE.
This principle puts premium to the prior collective bargaining history
and affinity of the employees in
determining the appropriate bargaining unit. However, the existence of a prior
collective bargaining history has been
held as neither decisive nor conclusive in the determination of what constitutes an
appropriate bargaining unit.
National Association of Free Trade Unions v. Mainit Lumber Development
Company Workers
Union. 7 - It was ruled here that there is mutuality of interest among the workers
in the sawmill division and logging
3 G.R. No. 110399, Aug. 15, 1997, 277 SCRA 370, 380-381.
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division as to justify their formation of a single bargaining unit. This holds true
despite the history of said two
divisions being treated as separate units and notwithstanding their geographical
distance from each other.
4. EMPLOYMENT STATUS DOCTRINE.
The determination of the appropriate bargaining unit based on the
employment status of the employees is
considered an acceptable mode. For instance, casual employees and those employed on
a day-to-day basis,
according to the Supreme Court in Philippine Land-Air-Sea Labor Union v. CIR, 1 do
not have the mutuality or
community of interest with regular and permanent employees. Hence, their inclusion
in the bargaining unit
composed of the latter is not justified. Confidential employees, by the very nature
of their functions, assist and act in
a confidential capacity to, or have access to confidential matters of, persons who
exercise managerial functions in
the field of labor relations. As such, the rationale behind the ineligibility of
managerial employees to form, assist or
join a labor union equally applies to them. Hence, they cannot be allowed to be
included in the rank-and-file
employees’ bargaining unit. The rationale for this inhibition is that if these
managerial employees would belong to
or be affiliated with a union, the latter might not be assured of their loyalty to
the union in view of evident conflict
of interest. The union can also become company-dominated with the presence of
managerial employees in its
membership.
C.
BARGAINING REPRESENTATIVE
A.K.A. SEBA OR BARGAINING AGENT
• What should the employer do if a request for recognition or a demand for CBA
negotiation is made by a
union which has not been certified as the SEBA?
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The employer so requested cannot now extend voluntary recognition but may
still validly file a petition for
certification election (PCE) under Article 270 [258] of the Labor Code, in order to
determine if the requesting union
has the majority support of the employees in the bargaining unit which it seeks to
represent or where it intends to
operate.
• What are the situations involved in this new mode of “REQUEST FOR SEBA
CERTIFICATION”?
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(b)
CERTIFICATION ELECTION
a. General rule.
The general rule is that in the absence of a CBA duly registered in
accordance with Article 231 of the Labor
Code, a petition for certification election may be filed at any time.
b. Bar rules.
No certification election may be held under the following rules:
1. Statutory bar rule;
2. Certification year bar rule;
3. Negotiations bar rule;
4. Bargaining deadlock bar rule; or
5. Contract bar rule.
1. STATUTORY BAR RULE.
The Labor Code does not contain any provision on this rule but the Rules
to Implement the Labor Code
embody a rule that bars the filing of a PCE within a period of one (1) year from
the date of a valid conduct of a
certification, consent, run-off or re-run election where no appeal on the results
thereof was made. If there was such
an appeal from the order of the Med-Arbiter, the running of the one-year period is
deemed suspended until the
decision on the appeal has become final and executory.
This is called the statutory bar rule which finds its roots from a similar
rule in the United States. Thus, an
election cannot be held in any bargaining unit in which a final and valid election
was concluded within the preceding
12-month period.
2. CERTIFICATION YEAR BAR RULE.
Under this rule, a petition for certification election (PCE) may not be
filed within one (1) year:
1. From the date a union is certified as SEBA by virtue of a REQUEST FOR
SEBA CERTIFICATION;
or
2. From the date a valid certification, consent, run-off or re-run
election has been conducted within the
bargaining unit.
If after this one year period, the SEBA did not commence collective
bargaining with the employer, a PCE
may be filed by a rival union to challenge the majority status of the certified
SEBA.
3. NEGOTIATIONS BAR RULE.
Under this rule, no PCE should be entertained while the sole and
exclusive bargaining agent (SEBA) and
the employer have commenced and sustained negotiations in good faith within the
period of one (1) year from the
date of a valid certification, consent, run-off or re-run election or from the date
of voluntary recognition.
Once the CBA negotiations have commenced and while the parties are in the
process of negotiating the
terms and conditions of the CBA, no challenging union is allowed to file a PCE that
would disturb the process and
unduly forestall the early conclusion of the agreement.
4. BARGAINING DEADLOCK BAR RULE.
Under this rule, a PCE may not be entertained when a bargaining deadlock
to which an incumbent or
certified bargaining agent is a party has been submitted to conciliation or
arbitration or has become the subject of a
valid notice of strike or lockout.
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• What are the two (2) kinds of majorities (DOUBLE MAJORITY RULE)?
The process of certification election requires two (2) kinds of majority
votes, viz.:
1. Number of votes required for the validity of the process of
certification election itself. In order to
have a valid certification election, at least a majority of all
eligible voters in the appropriate bargaining
unit must have cast their votes.
2. Number of votes required to be certified as the collective bargaining
agent. To be certified as the
sole and exclusive bargaining agent, the union should obtain a
majority of the valid votes cast.
• What are some pertinent principles on certification election?
• The pendency of a petition to cancel the certificate of registration of a
union participating in a certification
election does not stay the conduct thereof.
• The pendency of an unfair labor practice case filed against a labor
organization participating in the certification
election does not stay the holding thereof.
• Direct certification as a method of selecting the exclusive bargaining agent
of the employees is not allowed.
This is because the conduct of a certification election is still necessary in
order to arrive in a manner definitive
and certain concerning the choice of the labor organization to represent the
workers in a collective bargaining
unit.
• The “No Union” vote is always one of the choices in a certification election.
Where majority of the valid votes
cast results in “No Union” obtaining the majority, the Med-Arbiter shall
declare such fact in the order.
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• Only persons who have direct employment relationship with the employer may
vote in the certification
election, regardless of their period of employment.
b.1.
CERTIFICATION ELECTION
IN AN UNORGANIZED ESTABLISHMENT
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d.
RE-RUN ELECTION
1. RULE ON RE-RUN ELECTION, NOT FOUND IN LABOR CODE BUT LATELY PROVIDED
IN A DOLE DEPARTMENT ORDER.
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CONSENT ELECTION
D.
RIGHTS OF LABOR ORGANIZATION
1.
CHECK-OFF, ASSESSMENT, AGENCY FEES
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AGENCY FEES
REQUISITES FOR ASSESSMENT
10. MINORITY UNION CANNOT DEMAND FROM THE EMPLOYER TO GRANT IT THE RIGHT TO
CHECK-OFF OF UNION DUES AND ASSESSMENTS FROM THEIR MEMBERS.
The obligation on the part of the employer to undertake the duty to check-
off union dues and special
assessments holds and applies only to the bargaining agent and not to any other
union/s (called “Minority Union/s”).
2.
COLLECTIVE BARGAINING
a.
DUTY TO BARGAIN COLLECTIVELY
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This doctrine is based on the ruling In Kiok Loy v. NLRC, 1 where the
petitioner, Sweden Ice Cream Plant,
refused to submit any counter-proposal to the CBA proposed by its employees’
certified bargaining agent. The High
Court ruled that the employer had thereby lost its right to bargain the terms and
conditions of the CBA. Thus, the
CBA proposed by the union was imposed lock, stock and barrel on the erring company.
The Kiok Loy case epitomizes the classic case of negotiating a CBA in bad
faith consisting of the
employer’s refusal to bargain with the collective bargaining agent by ignoring all
notices for negotiations and
requests for counter-proposals. Such refusal to send a counter-proposal to the
union and to bargain on the economic
terms of the CBA constitutes an unfair labor practice under Article 248(g) of the
Labor Code.
OTHER CASES AFTER KIOK LOY.
❖ Divine Word University of Tacloban v. Secretary of Labor and
Employment, Sept. 11, 1992.
❖ General Milling Corporation v. CA, Feb. 11, 2004.
b.
COLLECTIVE BARGAINING AGREEMENT (CBA)
1. CBA.
A “Collective Bargaining Agreement” or “CBA” for short, refers to the
negotiated contract between a duly
recognized or certified exclusive bargaining agent of workers and their employer,
concerning wages, hours of work
and all other terms and conditions of employment in the appropriate bargaining
unit, including mandatory provisions
for grievances and arbitration machineries. It is executed not only upon the
request of the exclusive bargaining
representative but also by the employer.
2. ESSENTIAL REQUISITES OF COLLECTIVE BARGAINING.
Prior to any collective bargaining negotiations between the employer and
the bargaining union, the
following requisites must first be satisfied:
1. Employer-employee relationship must exist between the employer and the
members of the bargaining
unit being represented by the bargaining agent;
2. The bargaining agent must have the majority support of the members
of the bargaining unit
established through the modes sanctioned by law; and
3. A lawful demand to bargain is made in accordance with law.
3. SOME PRINCIPLES ON CBA.
• CBA is the law between the parties during its lifetime and thus must be
complied with in good faith.
• Being the law between the parties, any violation thereof can be subject of
redress in court.
• Non-impairment of obligations of contract. A contract is the law between the
parties and courts have no choice
but to enforce such contract so long as it is not contrary to law, morals,
good customs or public policy.
Otherwise, courts would be interfering with the freedom of contract of the
parties.
• CBA is not an ordinary contract as it is impressed with public interest.
• Automatic Incorporation Clause – law is presumed part of the CBA.
• The benefits derived from the CBA and the law are separate and distinct from
each other.
• Workers are allowed to negotiate wage increases separately and distinctly from
legislated wage increases.
The parties may validly agree in the CBA to reduce wages and benefits of
employees provided such
reduction does not go below the minimum standards.
• Ratification of the CBA by majority of all the workers in the bargaining unit
makes the same binding on all
employees therein.
• Employees entitled to CBA benefits. The following are entitled to the benefits
of the CBA:
(1) Members of the bargaining union;
(2) Non-members of the bargaining union but are members of the bargaining
unit;
(3) Members of the minority union/s who paid agency fees to the bargaining
union; and
(4) Employees hired after the expiration of the CBA.
• Pendency of a petition for cancellation of union registration is not a
prejudicial question before CBA
negotiation may proceed.
• CBA should be construed liberally. If the terms of a CBA are clear and there
is no doubt as to the intention of
the contracting parties, the literal meaning of its stipulation shall prevail.
1.
MANDATORY PROVISIONS OF CBA
1. MANDATORY STIPULATIONS OF THE CBA.
The Syllabus mentions 4 provisions that are mandatorily required to be
stated in the CBA, to wit:
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1. Grievance Procedure;
2. Voluntary Arbitration;
3. No Strike-No Lockout Clause; and
4. Labor-Management Council (LMC).
If these provisions are not reflected in the CBA, its registration will be
denied by the BLR.
(i)
GRIEVANCE PROCEDURE
1. “GRIEVANCE” OR “GRIEVABLE ISSUE”.
A “grievance” or “grievable issue” is any question raised by either the
employer or the union regarding
any of the following issues or controversies:
1. The interpretation or implementation of the CBA;
2. The interpretation or enforcement of company personnel policies; or
3. Any claim by either party that the other party is violating any
provisions of the CBA or company
personnel policies.
In order to be grievable, the violations of the CBA should be ordinary and
not gross in character;
otherwise, they shall be considered as unfair labor practice (ULP).
Gross violation of the CBA is defined as flagrant and/or malicious refusal
by a party thereto to comply
with the economic provisions thereof. If what is violated, therefore, is a non-
economic or a political provision of
the CBA, the same shall not be considered as unfair labor practice and may thus be
processed as a grievable issue in
accordance with and following the grievance machinery laid down in the CBA.
2. GRIEVANCE MACHINERY.
“Grievance machinery” refers to the mechanism for the adjustment and
resolution of grievances arising
from the interpretation or implementation of a CBA and those arising from the
interpretation or enforcement of
company personnel policies.
3. GRIEVANCE PROCEDURE.
“Grievance procedure” refers to the internal rules of procedure
established by the parties in their CBA
with voluntary arbitration as the terminal step, which are intended to resolve all
issues arising from the
implementation and interpretation of their collective agreement. It is that part of
the CBA which provides for a
peaceful way of settling differences and misunderstanding between the parties.
The terms “grievance procedure” and “grievance machinery” may be used
interchangeably.
(ii)
VOLUNTARY ARBITRATION
1. VOLUNTARY ARBITRATION.
“Voluntary arbitration” refers to the mode of settling labor-management
disputes in which the parties
select a competent, trained and impartial third person who is tasked to decide on
the merits of the case and whose
decision is final and executory.
2. VOLUNTARY ARBITRATOR.
A “Voluntary Arbitrator” refers to any person who has been mutually named
or designated by the parties
to the CBA – the employer and the bargaining agent - to hear and decide the issues
between them.
A Voluntary Arbitrator is not an employee, functionary or part of the
government or of the Department of
Labor and Employment, but he is authorized to render arbitration services provided
under labor laws.
(iii)
“NO STRIKE, NO LOCKOUT” CLAUSE
1. SIGNIFICANCE OF THE CLAUSE.
A “No Strike, No Lockout” clause in the CBA is an expression of the firm
commitment of the parties
thereto that, on the part of the union, it will not mount a strike during the
effectivity of the CBA, and on the part of
the employer, that it will not stage a lockout during the lifetime thereof.
This clause may be invoked by an employer only when the strike is
economic in nature or one which is
conducted to force wage or other concessions from the employer that are not
mandated to be granted by the law
itself. It does not bar strikes grounded on unfair labor practices. This is so
because it is presumed that all
economic issues between the employer and the bargaining agent are deemed resolved
with the signing of the CBA.
The same rule also applies in case of lockout. The said clause may only be
invoked by the union in case the
ground for the lockout is economic in nature but it may not be so cited if the
ground is unfair labor practice
committed by the union.
2. EFFECT OF VIOLATION OF THE CLAUSE.
A strike conducted in violation of this clause is illegal.
(iv)
LABOR-MANAGEMENT COUNCIL
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1.
NATURE, ASPECTS
1. WHEN AN ACT CONSTITUTES ULP.
At the outset, it must be clarified that not all unfair acts constitute
ULPs. While an act or decision of an
employer or a union may be unfair, certainly not every unfair act or decision
thereof may constitute ULP as defined
and enumerated under the law.
The act complained of as ULP must have a proximate and causal connection
with any of the following 3
rights:
1. Exercise of the right to self-organization;
2. Exercise of the right to collective bargaining; or
3. Compliance with CBA.
Sans this connection, the unfair acts do not fall within the technical
signification of the term “unfair labor
practice.”
2. THE ONLY ULP WHICH MAY OR MAY NOT BE RELATED TO THE EXERCISE OF THE RIGHT TO
SELF-ORGANIZATION AND COLLECTIVE BARGAINING.
The only ULP which is the exception as it may or may not relate to the
exercise of the right to self-
organization and collective bargaining is the act described under Article 248 [f],
i.e., to dismiss, discharge or
otherwise prejudice or discriminate against an employee for having given or being
about to give testimony
under the Labor Code.
3. LABOR CODE PROVISIONS ON ULP.
Under the Labor Code, there are only five (5) provisions related to ULP,
to wit:
1. Article 258 [247] which describes the concept of ULPs and prescribes
the procedure for their
prosecution;
2. Article 259 [248] which enumerates the ULPs that may be committed by
employers;
3. Article 260 [249] which enumerates the ULPs that may be committed by
labor organizations;
4. Article 274 [261] which considers violations of the CBA as no longer
ULPs unless the same are gross
in character which means flagrant and/or malicious refusal to comply
with the economic provisions
thereof.
5. Article 278(c) [263(c)] which refers to union-busting, a form of ULP,
involving the dismissal from
employment of union officers duly elected in accordance with the union
constitution and by-laws,
where the existence of the union is threatened thereby.
4. PARTIES WHO/WHICH MAY COMMIT ULP.
A ULP may be committed by an employer or by a labor organization. Article
259 [248] describes the ULPs
that may be committed by an employer; while Article 260 [249] enumerates those
which may be committed by a
labor organization.
On the part of the employer, only the officers and agents of corporations,
associations or partnerships who
have actually participated in or authorized or ratified ULPs are criminally liable.
On the part of the union, only the officers, members of governing boards,
representatives or agents or
members of labor associations or organizations who have actually participated in or
authorized or ratified the ULPs
are criminally liable.
5. ELEMENTS OF ULP.
1. There should exist an employer-employee relationship between the
offended party and the offender;
and
2. The act complained of must be expressly mentioned and defined in the
Labor Code as an unfair
labor practice.
Absent one of the elements aforementioned will not make the act an unfair
labor practice.
6. ASPECTS OF ULP.
Under Article 258 [247], a ULP has two (2) aspects, namely:
1. Civil aspect; and
2. Criminal aspect.
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The civil aspect of an unfair labor practice includes claims for actual,
moral and exemplary damages,
attorney’s fees and other affirmative reliefs. Generally, these civil claims should
be asserted in the labor case before
the Labor Arbiters who have original and exclusive jurisdiction over unfair labor
practices. The criminal aspect,
on the other hand, can only be asserted before the regular court.
2.
ULP BY
EMPLOYERS
I.
INTERFERENCE WITH, RESTRAINT OR COERCION OF EMPLOYEES
IN THE EXERCISE OF THEIR RIGHT TO SELF-ORGANIZATION
1. TEST OF INTERFERENCE, RESTRAINT OR COERCION.
The terms “interfere,” “restrain” and “coerce” are very broad that any act
of management that may
reasonably tend to have an influence or effect on the exercise by the employees of
their right to self-organize may
fall within their meaning and coverage. According to the Supreme Court in Insular
Life Assurance Co., Ltd.,
Employees Association-NATU v. Insular Life Assurance Co., Ltd.,1 the test of
whether an employer has
interfered with or restrained or coerced employees within the meaning of the law is
whether the employer has
engaged in conduct which may reasonably tend to interfere with the free exercise of
the employees’ rights. It is not
necessary that there be direct evidence that any employee was in fact intimidated
or coerced by the statements or
threats of the employer if there is a reasonable inference that the anti-union
conduct of the employer does have an
adverse effect on the exercise of the right to self-organization and collective
bargaining.
2. TOTALITY OF CONDUCT DOCTRINE.
In ascertaining whether the act of the employer constitutes interference
with, restraint or coercion of the
employees’ exercise of their right to self-organization and collective bargaining,
the “totality of conduct doctrine”
may be applied.
The totality of conduct doctrine means that expressions of opinion by an
employer, though innocent in
themselves, may be held to constitute an unfair labor practice because of the
circumstances under which they were
uttered, the history of the particular employer’s labor relations or anti-union
bias or because of their connection with
an established collateral plan of coercion or interference. An expression which may
be permissibly uttered by one
employer, might, in the mouth of a more hostile employer, be deemed improper and
consequently actionable as an
unfair labor practice. The past conduct of the employer and like considerations,
coupled with an intimate connection
between the employer’s action and the union affiliation or activities of the
particular employee or employees taken
as a whole, may raise a suspicion as to the motivation for the employer’s conduct.
The failure of the employer to
ascribe a valid reason therefor may justify an inference that his unexplained
conduct in respect of the particular
employee or employees was inspired by the latter’s union membership and activities.
In General Milling,2 the Supreme Court considered the act of the employer
in presenting the letters from
February to June 1993, by 13 union members signifying their resignation from the
union clearly indicative of the
employer’s pressure on its employees. The records show that the employer presented
these letters to prove that the
union no longer enjoyed the support of the workers. The fact that the resignations
of the union members occurred
during the pendency of the case before the Labor Arbiter shows the employer’s
desperate attempt to cast doubt on
the legitimate status of the union. The ill-timed letters of resignation from the
union members indicate that the
employer had interfered with the right of its employees to self-organization.
Because of such act, the employer was
declared guilty of ULP.
3. INTERFERENCE IN THE EMPLOYEE’S RIGHT TO SELF-ORGANIZATION.
a. Interference is always ULP.
The judicial dictum is that any act of interference by the employer in
the exercise by employees of their
right to self-organization constitutes an unfair labor practice. This is the very
core of ULP.
In Hacienda Fatima v. National Federation of Sugarcane Workers – Food and
General Trade,3 the
Supreme Court upheld the factual findings of the NLRC and the Court of Appeals that
from the employer’s refusal
to bargain to its acts of economic inducements resulting in the promotion of those
who withdrew from the union, the
use of armed guards to prevent the organizers to come in, and the dismissal of
union officials and members, one
cannot but conclude that the employer did not want a union in its hacienda - a
clear interference in the right of the
workers to self-organization. Hence, the employer was held guilty of unfair labor
practice.
It was likewise held in Insular Life 4 that it is an act of interference
for the employer to send individual
letters to all employees notifying them to return to work at a time specified
therein, otherwise new employees would
be engaged to perform their jobs. Individual solicitation of the employees or
visiting their homes, with the employer
or his representative urging the employees to cease their union activities or cease
striking, constitutes ULP. All the
2 General Milling Corporation v. CA, G.R. No. 146728, Feb. 11, 2004.
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above-detailed activities are ULPs because they tend to undermine the concerted
activity of the employees, an
activity to which they are entitled free from the employer's molestation.
b. Formation of a union is never a valid ground to dismiss.
c. It is ULP to dismiss a union officer or an employee for his union
activities.
II.
YELLOW DOG
CONTRACT
1. WHAT IS A YELLOW DOG CONTRACT?
It is one which exacts from workers as a condition of employment that they
shall not join or belong to a
labor organization, or attempt to organize one during their period of employment or
that they shall withdraw
therefrom in case they are already members of a labor organization.
2. COMMON STIPULATIONS IN A YELLOW DOG CONTRACT.
A typical yellow dog contract embodies the following stipulations:
(1) A representation by the employee that he is not a member of a labor
organization;
(2) A promise by the employee that he will not join a union; and
(3) A promise by the employee that upon joining a labor organization, he
will quit his employment.
The act of the employer in imposing such a condition constitutes unfair
labor practice under Article 248(b)
of the Labor Code. Such stipulation in the contract is null and void.
III.
CONTRACTING OUT OF SERVICES AND FUNCTIONS
1. GENERAL RULE.
As a general rule, the act of an employer in having work or certain
services or functions being performed
by union members contracted out is not per se an unfair labor practice. This is so
because contracting-out of a job,
work or service is clearly an exercise by the employer of its business judgment and
its inherent management rights
and prerogatives. Hiring of workers is within the employer’s inherent freedom to
regulate its business and is a valid
exercise of its management prerogative subject only to special laws and agreements
on the matter and the fair
standards of justice. The employer cannot be denied the faculty of promoting
efficiency and attaining economy by a
study of what units are essential for its operation. It has the ultimate right to
determine whether services should be
performed by its personnel or contracted to outside agencies.
2. WHEN CONTRACTING-OUT BECOMES ULP.
It is only when the contracting out of a job, work or service being
performed by union members will
interfere with, restrain or coerce employees in the exercise of their right to
self-organization that it shall constitute an
unfair labor practice. Thus, it is not unfair labor practice to contract out work
for reasons of business decline,
inadequacy of facilities and equipment, reduction of cost and similar reasonable
grounds.
IV.
COMPANY
UNION
1. COMPANY INITIATED, DOMINATED OR ASSISTED UNION.
Paragraph [d] of Article 259 [248] considers it an unfair labor practice
to initiate, dominate, assist or
otherwise interfere with the formation or administration of any labor organization,
including the giving of financial
or other support to it or its organizers or supporters. Such union is called
“company union” as its formation, function
or administration has been assisted by any act defined as unfair labor practice
under the Labor Code.
V.
DISCRIMINATION
1. COVERAGE OF PROHIBITION.
What is prohibited as unfair labor practice under the law is to
discriminate in regard to wages, hours of
work, and other terms and conditions of employment in order to encourage or
discourage membership in any labor
organization.
4. MATERIALITY OF PURPOSE OF ALLEGED DISCRIMINATORY ACT.
1 Joel I. Seidman, The Yellow Dog Contract, The Johns Hopkins Press, 1932, Ch. 1,
pp.11-38.
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In Manila Pencil Co., Inc. v. CIR,1 it was ruled that even assuming that
business conditions justify the
dismissal of employees, it is a ULP of employer to dismiss permanently only union
members and not non-
unionists.
In Manila Railroad Co. v. Kapisanan ng mga Manggagawa sa Manila Railroad
Co., 2 the non-
regularization of long-time employees because of their affiliation with the union
while new employees were
immediately regularized was declared an act of discrimination.
VI.
FILING OF CHARGES OR GIVING OF TESTIMONY
1. CONCEPT.
Under paragraph [f] of Article 259 [248] of the Labor Code, it is an
unfair labor practice for an employer to
dismiss, discharge or otherwise prejudice or discriminate against an employee for
having given or being about to
give testimony under the Labor Code.
2. THE ONLY ULP NOT REQUIRED TO BE RELATED TO EMPLOYEE’S EXERCISE OF THE RIGHT
TO SELF-ORGANIZATION AND COLLECTIVE BARGAINING.
It must be underscored that Article 259(f) [248 (f)] is the only unfair
labor practice that need not be related
to the exercise by the employees of their right to self-organization and collective
bargaining.
In Itogon-Suyoc Mines, Inc. v. Baldo, 3 it was declared that an unfair
labor practice was committed by the
employer when it dismissed the worker who had testified in the hearing of a
certification election case despite its
prior request for the employee not to testify in the said proceeding accompanied
with a promise of being reinstated if
he followed said request.
VII.
CBA-RELATED ULPs
1. THREE (3) CBA-RELATED ULPs.
Article 259 [248] enunciates three (3) CBA-related unfair labor
practices, to wit:
1. To violate the duty to bargain collectively as prescribed in the Labor
Code.
2. To pay negotiation or attorney’s fees to the union or its officers or
agents as part of the settlement
of any issue in collective bargaining or any other dispute.
3. To violate a collective bargaining agreement.
VII-A.
PAYMENT OF NEGOTIATION AND ATTORNEY’S FEES
1. WHEN PAYMENT CONSIDERED ULP.
Article 259 (h) [248(h)] of the Labor Code considers as an unfair labor
practice the act of the employer in
paying negotiation fees or attorney’s fees to the union or its officers or agents
as part of the settlement of any issue
in collective bargaining or any other dispute.
VII-B.
VIOLATION OF THE CBA
1. CORRELATION.
Article 259 (i) [248(i)] of the Labor Code should be read in relation to
Article 261 thereof. Under Article
261, as amended, violations of a CBA, except those which are gross in character,
shall no longer be treated as an
unfair labor practice and shall be resolved as grievances under the CBA. Gross
violations of CBA shall mean
flagrant and/or malicious refusal to comply with the economic provisions of such
agreement.
2. CASE LAW.
The act of the employer in refusing to implement the negotiated wage
increase stipulated in the CBA,
which increase is intended to be distinct and separate from any other benefits or
privileges that may be forthcoming
to the employees, is an unfair labor practice.
Refusal for a considerable number of years to give salary adjustments
according to the improved salary
scales in the CBA is an unfair labor practice.
3.
ULP OF LABOR ORGANIZATIONS
I.
RESTRAINT AND COERCION OF EMPLOYEES
IN THE EXERCISE OF THEIR RIGHT TO SELF-ORGANIZATION
1. UNION MAY INTERFERE WITH BUT NOT RESTRAIN OR COERCE EMPLOYEES IN THE EXERCISE
OF THEIR RIGHT TO SELF-ORGANIZE.
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Under Article 260(a) [249 (a)], it is ULP for a labor organization, its
officers, agents or representatives to
restrain or coerce employees in the exercise of their right to self-organization.
Compared to similar provision of
Article 248(a) of the Labor Code, notably lacking is the use of the word
“interfere” in the exercise of the employees’
right to self-organize. The significance in the omission of this term lies in the
grant of unrestricted license to the
labor organization, its officers, agents or representatives to interfere with the
exercise by the employees of their right
to self-organization. Such interference is not unlawful since without it, no labor
organization can be formed as the
act of recruiting and convincing the employees is definitely an act of
interference.
II.
DISCRIMINATION
Under Article 260(b) [249 (b)], it is ULP for a labor organization,
its officers, agents or representatives:
(1) To cause or attempt to cause an employer to discriminate against an
employee, including discrimination
against an employee with respect to whom membership in such organization has been
denied.
(2) To terminate an employee’s union membership on any ground other than
the usual terms and conditions
under which membership or continuation of membership is made available to other
members.
III.
DUTY OF UNION TO BARGAIN
COLLECTIVELY
1. CONCEPT.
Under Article 260(c) [249 (c)], it is ULP for a duly certified sole and
exclusive bargaining union, its
officers, agents or representatives to refuse or violate the duty to bargain
collectively with the employer. This is the
counterpart provision of Article 259(g) [248 (g)] respecting the violation by the
employer of its duty to bargain
collectively.
2. PURPOSE.
The obvious purpose of the law is to ensure that the union will negotiate
with management in good faith
and for the purpose of concluding a mutually beneficial agreement regarding the
terms and conditions of their
employment relationship.
IV.
FEATHERBEDDING
DOCTRINE
1. CONCEPT.
Article 260(d) [249 (d)] is the “featherbedding”1 provision in the Labor
Code. Patterned after a similar
provision in the Taft-Hartley Act, 2 “featherbedding” or “make-work” refers to the
practice, caused and induced by a
union, of hiring more workers than are needed to perform a given work, job or task
or to adopt work procedures
which is evidently senseless, wasteful, inefficient and without legitimate
justifications since it is meant purely for
the purpose of employing additional workers than are necessary. This is resorted to
by the union as a response to the
laying-off of workers occasioned by their obsolescence because of the introduction
of machines, robots3 or new and
innovative technological changes and improvements in the workplace or as required
by minimum health and safety
standards, among other reasons. Its purpose is to unduly secure the jobs of the
workers. Because of these lay-offs,
the unions are constrained to resort to some featherbedding practices. Accordingly,
they usually request that the
technological changes be introduced gradually, or not at all, or that a minimum
number of personnel be retained
despite such changes. They resort to some ways and methods of retaining workers
even though there may be little
work left for them to do and perform. It therefore unnecessarily maintains or
increases the number of employees
used or the amount of time consumed to work on a specific job, work or undertaking.
By so increasing the demand
for workers, featherbedding obviously keeps wages higher.4
2. REQUISITES.
The requisites for featherbedding are as follows:
2 It is the Labor Management Relations Act of 1947, better known as the “Taft–
Hartley Act,” which was enacted on June 23, 1947. It amended the National Labor
Relations Act, 29 U.S.
Code § 158 - Unfair labor practices, Sec. 8[b] [6] thereof, which states: “to
cause or attempt to cause an employer to pay or deliver or agree to pay or deliver
any money or other thing
of value, in the nature of an exaction, for services which are not performed or
not to be performed[.]”
4 It must be noted that Section 8(b)(6) of the Taft-Hartley Act has outlawed
featherbedding arrangements which is a ULP of the union making the demand for
payment of wages for
services which are not performed or not to be performed. However, the
prohibitions against featherbedding under this section are made applicable only to
payments for workers not to
work. Consequently, the agreement prescribing minimum number of workers to be
hired and maintained and other “make-work” arrangements are considered valid and
legal,
notwithstanding the provision of this section.
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employ the local orchestra.1 Similarly, a printers’ union does not violate the
anti-featherbedding provision by
securing payment of wages to printers from newspapers for setting “bogus” -
duplicate forms for local
advertisements although the newspaper already has cardboard matrices to be used as
molds for metal casting from
which to print the same advertisements – even though the “bogus” is ordinarily not
used but is melted down
immediately.2
5. DEMAND FOR PAYMENT OF WORK ALREADY COMPENSATED.
The anti-featherbedding provision has been held not to bar a union from
demanding payment for work for
which the employer has already paid another person. Hence, a union has been held
not guilty of ULP in demanding
payment to it of an amount equal to the wages paid by the employer to a non-union
employee for work to which the
union’s members were entitled. If the work is actually done by employees, there can
be no conflict with the anti-
featherbedding provision, regardless of whether or not the persons receiving
payment are the ones who performed
the work.3
V.
DEMAND OR ACCEPTANCE
OF NEGOTIATION FEES OR ATTORNEY’S FEES
1. CONCEPT.
Under Article 260(e) [249 (e)], it is ULP for a labor organization, its
officers, agents or representatives to
ask for or accept negotiation fees or attorney’s fees from employers as part of the
settlement of any issue in
collective bargaining or any other dispute.
VI.
VIOLATION OF THE
CBA
1. CONCEPT.
Under Article 260(f) [249 (f)], it is ULP for a labor organization, its
officers, agents or representatives to
violate a CBA.
2. COUNTERPART PROVISION.
This is the counterpart provision of Article 259(i) [248 (i)] regarding
the employer’s act of violating a CBA.
But it must be noted that under Article 261 of the Labor Code, violation of the CBA
is generally considered merely a
grievable issue. It becomes an unfair labor practice only if the violation is gross
in character which means that there
is flagrant and/or malicious refusal to comply with the economic (as distinguished
from non-economic) stipulations
in the CBA. This principle applies not only to the employer but to the labor
organization as well.
VII.
CRIMINAL LIABILITY FOR ULPs OF LABOR ORGANIZATION
1. PERSONS LIABLE.
Article 260 [249] is explicit in its provision on who should be held
liable for ULPs committed by labor
organizations. It states that only the officers, members of governing boards,
representatives or agents or members of
labor associations or organizations who have actually participated in, authorized
or ratified unfair labor practices
shall be held criminally liable.
F.
PEACEFUL CONCERTED ACTIVITIES
A.
FORMS OF CONCERTED ACTIVITIES
1. FORMS OF CONCERTED ACTIVITIES.
There are three (3) forms of concerted activities, namely:
1. Strike;
2. Picketing; and
3. Lockout.
1.
BY LABOR ORGANIZATION
1. Strike; and
2. Picketing.
1. STRIKE.
1 Musicians Union v. Superior Court of Alameda County, 69 Cal 2d 695, 73 Cal Rptr
201, 447 P2d 313; NLRB v. Gamble Enterprises, Inc., 345 US 117, 97 L Ed 864, 73 S
Ct 560.
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2.
BY EMPLOYER
1. LOCKOUT.
“Lockout” means the temporary refusal by an employer to furnish work as a
result of an industrial or
labor dispute.
It consists of the following:
1. Shutdowns;
2. Mass retrenchment and dismissals initiated by the employer.
3. The employer’s act of excluding employees who are union members.
a.
REQUISITES FOR A VALID STRIKE
1. PROCEDURAL BUT MANDATORY REQUISITES FOR A VALID STRIKE.
A strike, in order to be valid and legal, must conform to the following
procedural requisites:
1st requisite - It must be based on a valid and factual ground;
2nd requisite - A notice of strike must be filed with the NCMB-DOLE;
3rd requisite - A notice must be served to the NCMB-DOLE at least twenty-
four (24) hours prior to the
taking of the strike vote by secret balloting, informing
said office of the decision to conduct
a strike vote, and the date, place, and time thereof;
4th requisite - A strike vote must be taken where a majority of the members
of the union obtained by
secret ballot in a meeting called for the purpose, must
approve it;
5th requisite - A strike vote report should be submitted to the NCMB-DOLE
at least seven (7) days before
the intended date of the strike;
th
6 requisite - Except in cases of union-busting, the cooling-off period of
15 days, in case of unfair labor
practices of the employer, or 30 days, in case of
collective bargaining deadlock, should be
fully observed; and
th
7 requisite - The 7-day waiting period/strike ban reckoned after the
submission of the strike vote report
to the NCMB-DOLE should also be fully observed in all
cases.
All the foregoing requisites, although procedural in nature, are mandatory
and failure of the union to
comply with any of them would render the strike illegal.
I.
FIRST REQUISITE:
EXISTENCE OF VALID AND FACTUAL GROUND/S
1. VALID GROUNDS.
The law recognizes only 2 grounds in support of a valid strike, viz.:
1. Collective bargaining deadlock (Economic Strike); and/or
2. Unfair labor practice (Political Strike).
A strike not based on any of these two grounds is illegal.
2. SOME PRINCIPLES ON THE FIRST REQUISITE.
▪ Violation of CBA, except when gross, is not an unfair labor practice,
hence, may not be cited as
ground for a valid strike. Ordinary violation of a CBA is no longer
treated as an unfair labor practice
but as a mere grievance which should be processed through the grievance
machinery and voluntary
arbitration.
▪ Inter-union or intra-union dispute is not a valid ground.
▪ Violation of labor standards is not a valid ground.
▪ Wage distortion is not a valid ground.
II.
SECOND REQUISITE:
FILING OF A NOTICE OF STRIKE
1. NOTICE OF STRIKE.
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III.
THIRD REQUISITE:
SERVICE OF A 24-HOUR PRIOR NOTICE
In Capitol Medical Center, Inc. v. NLRC, it was imposed as additional
requisite that a 24-hour notice
must be served to the NCMB-DOLE prior to the taking of the strike vote by secret
balloting, informing it of the
union’s decision to conduct a strike vote as well as the date, place, and time
thereof.
IV.
FOURTH REQUISITE:
CONDUCT OF A STRIKE VOTE
1. MAJORITY APPROVAL OF THE STRIKE.
No labor organization shall declare a strike without the necessary strike
vote first having been obtained and
reported to the NCMB-DOLE. A decision to declare a strike must be approved by a
majority of the total union
membership in the bargaining unit concerned, obtained by secret ballot in meetings
or referenda called for that
purpose. This process is called “strike vote balloting.”
A STRIKE WITHOUT THE MAJORITY SUPPORT OF THE UNION MEMBERS IS CALLED A
“WILDCAT STRIKE.”
2. PURPOSE.
The purpose of a strike vote is to ensure that the decision to strike
broadly rests with the majority of the
union members in general and not with a mere minority.
3. DURATION OF THE VALIDITY OF THE MAJORITY APPROVAL OF A STRIKE.
The majority decision to stage a strike is valid for the duration of the
dispute based on substantially the
same grounds considered when the strike vote was taken.
V.
FIFTH REQUISITE:
SUBMISSION OF THE STRIKE VOTE TO NCMB-DOLE
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b.
REQUISITES FOR A VALID LOCKOUT
1. SUBSTANTIALLY SIMILAR REQUISITES AS IN STRIKE.
2 No. 6 thereof.
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c.
REQUISITES FOR LAWFUL PICKETING
1. THE REQUISITES FOR A VALID STRIKE ARE NOT APPLICABLE TO PICKETING.
The seven (7) requisites for a valid strike discussed above do not apply
to picketing.
2. REQUISITES FOR LAWFUL PICKETING.
The most singular requirement to make picketing valid and legal is that
it should be peacefully conducted.
Based on the foregoing provision, the requisites may be summed up as follows:
1. The picket should be peacefully carried out;
2. There should be no act of violence, coercion or intimidation attendant
thereto;
3. The ingress to (entrance) or egress from (exit) the company premises
should not be obstructed; and
4. Public thoroughfares should not be impeded.
3. RIGHT TO PICKET IS PROTECTED BY THE CONSTITUTION AND THE LAW.
Unlike a strike which is guaranteed under the Constitutional provision on
the right of workers to conduct
peaceful concerted activities under Section 3, Article XIII thereof, the right to
picket is guaranteed under the
freedom of speech and of expression and to peaceably assemble to air grievances
under Section 4, Article III
(Bill of Rights) thereof.
4. EFFECT OF THE USE OF FOUL LANGUAGE DURING THE CONDUCT OF THE PICKET.
In the event the picketers employ discourteous and impolite language in
their picket, such may not result in,
or give rise to, libel or action for damages.
5. PICKETING VS. STRIKE.
(a) To strike is to withhold or to stop work by the concerted action of
employees as a result of an industrial
or labor dispute. The work stoppage may be accompanied by picketing by the striking
employees outside of the
company compound.
(b) While a strike focuses on stoppage of work, picketing focuses on
publicizing the labor dispute and its
incidents to inform the public of what is happening in the company being picketed.
(c) A picket simply means to march to and fro in front of the employer’s
premises, usually accompanied by
the display of placards and other signs making known the facts involved in a labor
dispute. It is but one strike
activity separate and different from the actual stoppage of work.
Phimco Industries, Inc. v. Phimco Industries Labor Association (PILA).1 -
While the right of
employees to publicize their dispute falls within the protection of freedom of
expression and the right to peaceably
assemble to air grievances, these rights are by no means absolute. Protected
picketing does not extend to
blocking ingress to and egress from the company premises. That the picket was
moving, was peaceful and
was not attended by actual violence may not free it from taints of illegality if
the picket effectively blocked
entry to and exit from the company premises.
6. WHEN PICKET CONSIDERED A STRIKE.
In distinguishing between a picket and a strike, the totality of the
circumstances obtaining in a case should
be taken into account.
Santa Rosa Coca-Cola Plant Employees Union v. Coca-Cola Bottlers Phils.,
Inc.2 - Petitioners contend
that what they conducted was a mere picketing and not a strike. In disagreeing to
this contention, the High Court
emphasized that it is not an issue in this case that there was a labor dispute
between the parties as petitioners had
notified the respondent of their intention to stage a strike, and not merely to
picket. Petitioners’ insistence to stage a
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strike is evident in the fact that an amended notice of strike was filed even as
respondent moved to dismiss the first
notice. The basic elements of a strike are present in this case: 106 members of
petitioner Union, whose respective
applications for leave of absence on September 21, 1999 were disapproved, opted not
to report for work on said
date, and gathered in front of the company premises to hold a mass protest action.
Petitioners deliberately absented
themselves and instead wore red ribbons and carried placards with slogans such as:
“YES KAMI SA STRIKE,”
“PROTESTA KAMI,” “SAHOD, KARAPATAN NG MANGGAGAWA IPAGLABAN,” “CBA-’WAG BABOYIN,”
“STOP UNION BUSTING.” They marched to and fro in front of the company’s premises
during working hours.
Thus, petitioners engaged in a concerted activity which already affected the
company’s operations. The mass
concerted activity obviously constitutes a strike. Moreover, the bare fact that
petitioners were given a Mayor’s
permit is not conclusive evidence that their action/activity did not amount to a
strike. The Mayor’s description of
what activities petitioners were allowed to conduct is inconsequential. To repeat,
what is definitive of whether the
action staged by petitioners is a strike and not merely a picket is the totality of
the circumstances surrounding the
situation.
Petitioner union in the 2011 case of Leyte Geothermal Power Progressive
Employees Union-ALU-
TUCP v. Philippine National Oil Company – Energy Development Corporation,1 contends
that there was no
stoppage of work; hence, they did not strike. Euphemistically, petitioner union
avers that it “only engaged in
picketing,” and maintains that “without any work stoppage, [its officers and
members] only engaged in xxx protest
activity.” The Supreme Court, however, ruled that it was a strike and not picketing
or protest activity that petitioner
union staged. It found the following circumstances in support of such finding:
(1) Petitioner union filed a Notice of Strike on December 28, 1998 with
the DOLE grounded on
respondent’s purported unfair labor practices, i.e., “refusal to bargain
collectively, union busting and mass
termination.” On even date, petitioner Union declared and staged a strike.
(2) The DOLE Secretary intervened and issued a Return-to-Work Order dated
January 4, 1999, certifying
the labor dispute to the NLRC for compulsory arbitration. The Order indicated the
following facts: (1) filing of the
notice of strike; (2) staging of the strike and taking control over respondent’s
facilities of its Leyte Geothermal
Project on the same day petitioner union filed the notice of strike; (3) attempts
by the NCMB to forge a mutually
acceptable solution proved futile; (4) in the meantime, the strike continued with
no settlement in sight placing in
jeopardy the supply of much needed power supply in the Luzon and Visayas grids.
(3) Petitioner union itself, in its pleadings, used the word “strike.”
(4) Petitioner union’s asseverations are belied by the factual findings
of the NLRC, as affirmed by the CA
thus: “The failure to comply with the mandatory requisites for the conduct of
strike is both admitted and clearly
shown on record. Hence, it is undisputed that no strike vote was conducted;
likewise, the cooling-off period was not
observed and that the 7-day strike ban after the submission of the strike vote was
not complied with since there was
no strike vote taken.”
In fine, petitioner union’s bare contention that it did not hold a strike
cannot trump the factual findings of
the NLRC that petitioner union indeed struck against respondent. In fact, and more
importantly, petitioner union
failed to comply with the requirements set by law prior to holding a strike.
d.
WHEN IS A STRIKE CONSIDERED ILLEGAL?
A strike is illegal if it is declared and staged:
1) Without complying with the procedural but mandatory requisites (See 7
requisites above).
2) For unlawful purpose such as to compel the dismissal of an employee
or to force recognition of the
union or for trivial and puerile purpose or to circumvent contracts
and judicial orders.
3) Based on non-strikeable or invalid grounds such as:
a) Inter-union or intra-union disputes.
b) Simple violation of CBA in contrast to gross violation thereof
which is deemed ULP.
c) Violation of labor standards.
d) Legislated wage orders (wage distortion).
4) Without first having bargained collectively.
5) In violation of the “no strike, no lockout” clause in the CBA.
6) Without submitting the issues to the grievance machinery or voluntary
arbitration or failing to exhaust
the steps provided therein.
7) While conciliation and mediation proceeding is on-going at the NCMB.
8) Based on issues already brought to voluntary or compulsory
arbitration.
9) During the pendency of a case involving the same ground/s cited in
the notice of strike.
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3.
ASSUMPTION OF JURISDICTION
(BY THE DOLE SECRETARY OR ALTERNATIVELY, AT HIS DISCRETION,
CERTIFICATION OF THE LABOR DISPUTE TO THE NLRC FOR COMPULSORY
ARBITRATION)
1. WHEN DOLE SECRETARY MAY ASSUME OR CERTIFY A LABOR DISPUTE.
Article 278(g) [263(g)] of the Labor Code provides that when in the
opinion of the DOLE Secretary, the
labor dispute causes or will likely to cause a strike or lockout in an industry
indispensable to the national
interest, he is empowered to do either of 2 things:
1. He may assume jurisdiction over the labor dispute and decide it
himself; or
2. He may certify it to the NLRC for compulsory arbitration, in which
case, it will be the NLRC which
shall hear and decide it.
This power may be exercised by the DOLE Secretary even before the actual
staging of a strike or
lockout since Article 278(g) [263(g)] does not require the existence of a strike or
lockout but only of a labor dispute
involving national interest.
2. WHAT CONSTITUTES A NATIONAL INTEREST CASE?
The Labor Code vests in the DOLE Secretary the discretion to determine
what industries are indispensable
to the national interest. Accordingly, upon the determination by the DOLE Secretary
that such industry is
indispensable to the national interest, he has authority to assume jurisdiction
over the labor dispute in the said
industry or certify it to the NLRC for compulsory arbitration.
Past issuances of the DOLE Secretary have not made nor attempted to
mention specifically what the
industries indispensable to the national interest are. It was only in Department
Order No. 40-H-13, Series of 2013,
that certain industries were specifically named, thus:
“Section 16. Industries Indispensable to the National
Interest. – For the guidance of the
workers and employers in the filing of petition for assumption of
jurisdiction, the following industries/
services are hereby recognized as deemed indispensable to the national
interest:
a. Hospital sector;
b. Electric power industry;
c. Water supply services, to exclude small water supply
services such as bottling and
refilling stations;
d. Air traffic control; and
e. Such other industries as may be recommended by the National
Tripartite Industrial Peace
Council (TIPC).”
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5. RETURN-TO-WORK ORDER.
a. It is a STATUTORY PART AND PARCEL of assumption/certification order
even if not expressly
stated therein.
The moment the DOLE Secretary assumes jurisdiction over a labor dispute
involving national interest or
certifies it to the NLRC for compulsory arbitration, such assumption or
certification has the effect of automatically
enjoining the intended or impending strike or, if one has already been commenced,
of automatically prohibiting its
continuation. The mere issuance of an assumption or certification order
automatically carries with it a return-to-work
order, even if the directive to return to work is not expressly stated therein. It
is thus not necessary for the DOLE
Secretary to issue another order directing the strikers to return to work.
It is error therefore for striking workers to continue with their strike
alleging absence of a return-to-work
order since Article 263(g) is clear that once an assumption/certification order is
issued, strikes are enjoined or, if one
has already taken place, all strikers should immediately return to work.
b. Nature of return-to-work order.
Return-to-work order is compulsory and immediately executory in character.
It should be strictly
complied with by the parties even during the pendency of any petition questioning
its validity in order to maintain
the status quo while the determination is being made. Filing of a motion for
reconsideration does not affect the
enforcement of a return-to-work order which is immediately executory.
c. Some principles on return-to-work order.
▪ The issue of legality of strike is immaterial in enforcing the return-
to-work order.
▪ Upon assumption or certification, the parties should revert to the
status quo ante litem which refers to
the state of things as it was before the labor dispute or the state of
affairs existing at the time of the filing
of the case. It is the last actual, peaceful and uncontested status
that preceded the actual controversy.
▪ To implement the return-to-work order, the norm is actual
reinstatement. However, payroll
reinstatement in lieu of actual reinstatement may properly be resorted
to when special circumstances
exist that render actual reinstatement impracticable or otherwise not
conducive to attaining the purposes
of the law.
Example:
3.1.
NATURE OF ASSUMPTION ORDER
OR CERTIFICATION ORDER
1. A POLICE POWER MEASURE.
The power to issue assumption or certification orders is an extraordinary
authority granted to the
President and to his alter ego, the DOLE Secretary, the exercise of which should be
strictly limited to national
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interest cases. It is in the nature of a police power measure. This is done for the
promotion of the common good
considering that a prolonged strike or lockout can be inimical to the national
economy.
3.2.
EFFECT OF DEFIANCE OF
ASSUMPTION OR CERTIFICATION ORDERS
ON EMPLOYMENT OF DEFIANT WORKERS
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1 G.R. Nos. 154113, 187778, 187861 & 196156, Dec. 7, 2011, 661 SCRA 686.
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------------oOo------------
SYLLABUS
MAJOR TOPIC 8
PRELIMINARY CONSIDERATIONS
ON PROCEDURE AND JURISDICTION
1. EXISTENCE OF EMPLOYER-EMPLOYEE RELATIONSHIP.
The existence of employer-employee relationship between the parties-
litigants, or a reasonable causal
connection to such relationship is a jurisdictional pre-requisite for the exercise
of jurisdiction over a labor dispute by
the Labor Arbiters or any other labor tribunals.
2. THE CAUSE OF ACTION MUST ARISE FROM THE EMPLOYER-EMPLOYEE RELATIONSHIP.
Even if there is employer-employee relationship, if the cause of action
did not arise out of or was not
incurred in connection with the employer-employee relationship, Labor Arbiters and
other labor tribunals have no
jurisdiction thereover.
Actions between employers and employees where the employer-employee
relationship is merely incidental
are within the exclusive original jurisdiction of the regular courts.
3. REASONABLE CAUSAL CONNECTION RULE – THE RULE IN CASE OF CONFLICT OF
JURISDICTION BETWEEN LABOR COURT AND REGULAR COURT.
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5. IN CASES FILED BY OFWs, LABOR ARBITERS MAY EXERCISE JURISDICTION EVEN ABSENT
THE EMPLOYMENT RELATIONSHIP.
In Santiago v. CF Sharp Crew Management, Inc.,1 it was held that a
seafarer who has already signed a
POEA-approved employment contract but was not deployed overseas and, therefore,
there is no employer-employee
relationship, may file his monetary claims case with the Labor Arbiter. This is
because the jurisdiction of Labor
Arbiters is not limited to claims arising from employer-employee relationships.
Under Section 10 of R. A. No. 8042
(Migrant Workers and Overseas Filipinos Act of 1995), as amended, the Labor Arbiter
may exercise jurisdiction
over the claims of OFWs arising out of an employer-employee relationship or by
virtue of any law or contract
involving Filipino workers for overseas deployment, including claims for actual,
moral, exemplary and other
forms of damage. (See also the 2012 case of Bright Maritime Corporation v.
Fantonial2).
6. LABOR ARBITERS HAVE JURISDICTION EVEN IF THE CASE IS FILED BY THE HEIRS OF THE
OFW.
This was the ruling in Medline Management, Inc. v. Roslinda.3 As heirs,
the wife and son of Juliano
Roslinda, the deceased OFW, have the personality to file the claim for death
compensation, reimbursement of
medical expenses, damages and attorney's fees before the Labor Arbiter of the NLRC.
7. LABOR DISPUTES, NOT SUBJECT TO BARANGAY CONCILIATION.
Labor cases are not subject to the conciliation proceedings prescribed
under P.D. No. 1508 requiring the
submission of disputes before the Barangay Lupong Tagapayapa prior to their filing
with the court or other
government offices. Instead of simplifying labor proceedings designed at
expeditious settlement or referral to the
proper courts or offices to decide them finally, the conciliation of the issues
before the Barangay Lupong
Tagapayapa would only duplicate the conciliation proceedings and unduly delay the
disposition of labor cases.
A.
LABOR ARBITER
1. THE LABOR ARBITER.
The Labor Arbiter is an official in the Arbitration Branch of the
National Labor Relations Commission
(NLRC) who hears and decides cases falling under his original and exclusive
jurisdiction as provided by law.
2. LABOR ARBITERS HAVE NO INJUNCTIVE POWER; ONLY THE COMMISSION (NLRC) HAS THIS
POWER.
Previously, Labor Arbiters are possessed of injunctive power. This grant
of injunctive power, however, was
deleted in recent NLRC Rules. The Labor Arbiter thus has no more injunctive power.
Only the Commission (NLRC)
has that power.
1.
JURISDICTION
1. NATURE OF JURISDICTION OF LABOR ARBITERS - ORIGINAL AND EXCLUSIVE.
The jurisdiction conferred by Article 217 upon the Labor Arbiters is both
original and exclusive, meaning,
no other officers or tribunals can take cognizance of, or hear and decide, any of
the cases therein enumerated.
2. EXCEPTIONS TO THE ORIGINAL AND EXCLUSIVE JURISDICTION OF LABOR ARBITERS.
The following cases are the exceptions when the Labor Arbiters may not
exercise their original and
exclusive jurisdiction:
1. In assumed cases. When the DOLE Secretary or the President exercises
his power under Article 278(g)
[263(g)] of the Labor Code to assume jurisdiction over national
interest cases and decide them himself.
2. In certified cases. When the NLRC exercises its power of compulsory
arbitration over similar national
interest cases that are certified to it by the DOLE Secretary
pursuant to the exercise by the latter of his
certification power under the same Article 278(g) [263(g)].
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3. In cases arising from CBA. - When cases arise from the interpretation or
implementation of collective
bargaining agreements and from the interpretation or enforcement of
company personnel policies which
shall be disposed of by the Labor Arbiter by referring the same to the
grievance machinery and
voluntary arbitration, as may be provided in said agreements.
4. In cases submitted for voluntary arbitration. - When the parties agree
to submit the case to voluntary
arbitration before a Voluntary Arbitrator or panel of Voluntary
Arbitrators who, under Articles 274 [261]
and 275 [262] of the Labor Code, are also possessed of original and
exclusive jurisdiction to hear and
decide cases mutually submitted to them by the parties for arbitration
and adjudication.
3. RUNDOWN OF ALL CASES FALLING UNDER THE JURISDICTION OF THE LABOR ARBITERS.
More particularly, Labor Arbiters shall have original and exclusive
jurisdiction to hear and decide the
following cases involving all workers, whether agricultural or non-agricultural:
1. Under Article 224 [217] of the Labor Code:
(a) Unfair labor practice cases;
(b) Termination disputes (Illegal dismissal cases);
(c) Money claims exceeding P5,000.00.
(d) Claims for actual, moral, exemplary and other forms of damages
arising from employer-employee
relations; and
(e) Cases involving the legality of strikes and lockouts.
NOTE: Claims for employees’ compensation, SSS, PhilHealth (Medicare) and
maternity benefits do not
fall under the jurisdiction of the Labor Arbiter because these fall under the
jurisdiction of other government
agencies.
2. Under Article 124 of the Labor Code, as amended by R.A. No. 6727:
Disputes involving legislated wage increases and wage distortion in
unorganized establishments not
voluntarily settled by the parties pursuant to R.A. No. 6727.
3. Under Article 128(b) of the Labor Code, as amended by R.A. No. 7730:
• Contested cases under the exception clause in Article 128(b) of the
Labor Code.
4. Under Article 233 [227] of the Labor Code:
• Enforcement of compromise agreements when there is non-compliance by
any of the parties thereto,
pursuant to Article 227 of the Labor Code.
5. Under Article 276 [262-A] of the Labor Code:
• Issuance of writ of execution to enforce decisions of Voluntary
Arbitrators or panel of Voluntary
Arbitrators, in case of their absence or incapacity, for any reason.
6. Under Section 10 of R.A. No. 8042, as amended by R.A. No. 10022:
• Money claims of OFWs arising out of employer-employee relationship or
by virtue of any law or
contract, including claims death and disability benefits and for
actual, moral, exemplary and other
forms of damages.
7. Other cases as may be provided by law.
I.
JURISDICTION OVER UNFAIR LABOR PRACTICE CASES
1. SOME PRINCIPLES ON JURISDICTION OVER ULPs.
• The Labor Arbiter has jurisdiction over all ULPs whether committed by the
employers or the labor
organizations.
• The Labor Arbiter has jurisdiction only over the civil aspect of ULP, the
criminal aspect being lodged with the
regular courts.
II.
JURISDICTION OVER ILLEGAL DISMISSAL CASES
1. SOME PRINCIPLES ON JURISDICTION OVER TERMINATION CASES.
• The validity of the exercise of jurisdiction by Labor Arbiters over
illegal dismissal cases is not
dependent on the kind or nature of the ground cited in support of the
dismissal; hence, whether the
dismissal is for just cause or authorized cause, it is of no consequence.
• In case of conflict of jurisdiction between Labor Arbiter and the
Voluntary Arbitrator over
termination cases, the former’s jurisdiction shall prevail for the
following reasons:
(1) Termination of employment is not a grievable issue that must be
submitted to the grievance
machinery or voluntary arbitration for adjudication. The jurisdiction
thereover remains within the
original and exclusive ambit of the Labor Arbiter and not of the
Voluntary Arbitrator.
(2) Even if the CBA provides that termination disputes are grievable, the
same is merely discretionary
on the part of the parties thereto.
(3) Once there is actual termination, jurisdiction is conferred upon
Labor Arbiters by operation of law.
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If the amount does not exceed P5,000.00, it is, under Article 129, the DOLE
Regional Director who has
jurisdiction to take cognizance thereof. Therefore, the amount of P5,000.00
becomes important only when the
principal cause of action is MONETARY CLAIM.
3. SOME PRINCIPLES ON JURISDICTION OVER MONEY CLAIMS.
• Award of statutory benefits even if not prayed for is valid.
• Claim for notarial fees by a lawyer employed by a company is within the
jurisdiction of the Labor Arbiter.
(a)
VERSUS REGIONAL DIRECTOR
1. LABOR ARBITERS HAVE NO JURISDICTION OVER SMALL MONEY CLAIMS LODGED UNDER
ARTICLE 129.
As earlier emphasized, under Article 129 of the Labor Code, DOLE Regional
Directors have jurisdiction
over claims amounting to P5,000 or below, provided the following requisites concur:
1. The claim must arise from employer-employee relationship;
2. The claimant does not seek reinstatement; and
3. The aggregate money claim of each employee does not exceed P5,000.00.
2. IN INSPECTION OF ESTABLISHMENT CASES UNDER ARTICLE 128 (VISITORIAL AND
ENFORCEMENT POWER), THE DOLE REGIONAL DIRECTORS HAVE JURISDICTION
REGARDLESS OF WHETHER OR NOT THE TOTAL AMOUNT OF CLAIMS PER EMPLOYEE
EXCEEDS P5,000.00.
a. Requisites.
For the valid exercise by the DOLE Secretary or any of his duly authorized
representatives (DOLE
Regional Directors) of the visitorial and enforcement powers provided under Article
128(b), the following requisites
should concur:
(1) The employer-employee relationship should still exist;
(2) The findings in question were made in the course of inspection by labor
inspectors; and
(3) The employees have not yet initiated any claim or complaint with the
DOLE Regional Director under
Article 129, or the Labor Arbiter under Article 217.
3. HOWEVER, JURISDICTION OVER CONTESTED CASES UNDER THE EXCEPTION CLAUSE IN
ARTICLE 128(b) OF THE LABOR CODE INVOLVING INSPECTION OF ESTABLISHMENTS
BELONGS TO THE LABOR ARBITERS AND NOT TO DOLE REGIONAL DIRECTORS.
a. Relation of paragraph (b) of Article 128 to the jurisdiction of Labor
Arbiters.
The Labor Arbiters have jurisdiction over contested cases under the
exception clause in Article 128(b),
which states: “xxx. The Secretary or his duly authorized representatives shall
issue writs of execution to the
appropriate authority for the enforcement of their orders, except in cases where
the employer contests the findings
of the labor employment and enforcement officer and raises issues supported by
documentary proofs which were not
considered in the course of inspection.”
In interpreting the afore-quoted provision of the exception clause, three
(3) elements must concur to divest
the Regional Directors or their representatives of jurisdiction thereunder, to wit:
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(a) That the employer contests the findings of the labor regulations
officer and raises issues thereon;
(b) That in order to resolve such issues, there is a need to examine
evidentiary matters; and
(c) That such matters are not verifiable in the normal course of
inspection.
The 2009 case of Meteoro v. Creative Creatures, Inc., 1 best illustrates
the application of the exception
clause. Here, it was held that the Court of Appeals aptly applied the “exception
clause” because at the earliest
opportunity, respondent company registered its objection to the findings of the
labor inspector on the ground that
there was no employer-employee relationship between petitioners and respondent
company. The labor inspector, in
fact, noted in his report that “respondent alleged that petitioners were
contractual workers and/or independent and
talent workers without control or supervision and also supplied with tools and
apparatus pertaining to their job.” In
its position paper, respondent again insisted that petitioners were not its
employees. It then questioned the Regional
Director’s jurisdiction to entertain the matter before it, primarily because of the
absence of an employer-employee
relationship. Finally, it raised the same arguments before the Secretary of Labor
and the appellate court. It is,
therefore, clear that respondent contested and continues to contest the findings
and conclusions of the labor
inspector. To resolve the issue raised by respondent, that is, the existence of an
employer-employee relationship,
there is a need to examine evidentiary matters.
IV.
JURISDICTION OVER CLAIMS FOR DAMAGES
1. LABOR ARBITERS HAVE JURISDICTION OVER CLAIMS FOR DAMAGES.
It is now a well-settled rule that claims for damages as well as
attorney’s fees in labor cases are cognizable
by the Labor Arbiters, to the exclusion of all other courts. Rulings to the
contrary are deemed abandoned or modified
accordingly.
2. CLAIMS FOR DAMAGES OF OVERSEAS FILIPINO WORKERS (OFWs).
Claims for actual, moral, exemplary and other forms of damages that may be
lodged by overseas Filipino
workers are cognizable by the Labor Arbiters.
V.
JURISDICTION OVER LEGALITY OF STRIKES AND LOCKOUTS
2 G.R. No. 183335, Dec. 23, 2009; See also Hotel Employees Union-NFL v. Waterfront
Insular Hotel Davao, G.R. Nos. 174040-41, Sept. 22, 2010.
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VI.
JURISDICTION OVER CASES INVOLVING
LEGISLATED WAGE INCREASES AND WAGE DISTORTION
VII.
JURISDICTION OVER ENFORCEMENT OR ANNULMENT
OF COMPROMISE AGREEMENTS
1. LEGAL BASIS.
Article 233 [227] clearly embodies the following provisions on compromise
agreements:
“Article 233 [227]. Compromise Agreements. - Any compromise
settlement, including those
involving labor standard laws, voluntarily agreed upon by the parties with
the assistance of the Bureau or the
regional office of the Department of Labor, shall be final and binding
upon the parties. The National Labor
Relations Commission or any court shall not assume jurisdiction over
issues involved therein except in
case of non-compliance thereof or if there is prima facie evidence that
the settlement was obtained
through fraud, misrepresentation, or coercion.”
Clear from the foregoing provision that, although the compromise agreement
may have been entered into by
the parties before the Bureau of Labor Relations (BLR) or the DOLE Regional Office,
it is the Labor Arbiter who
has jurisdiction to take cognizance of the following issues related thereto, to the
exclusion of the BLR and the
DOLE Regional Directors:
(1) To enforce the compromise agreement in case of non-compliance therewith
by any of the parties thereto;
or
(2) To nullify it if there is prima facie evidence that the settlement was
obtained through fraud,
misrepresentation, or coercion.
VIII.
JURISDICTION OVER EXECUTION AND ENFORCEMENT
OF DECISIONS OF VOLUNTARY ARBITRATORS
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IX.
JURISDICTION OVER CASES OF OFWs
X.
OTHER ISSUES OVER WHICH
LABOR ARBITERS HAVE JURISDICTION
1. JURISDICTION OVER CERTAIN ISSUES AS PROVIDED IN JURISPRUDENCE.
In accordance with well-entrenched jurisprudence, the issues, claims or
cases of the following fall under the
jurisdiction of the Labor Arbiters:
(a) Employees in government-owned and/or controlled corporations without
original charters;
(b) Domestic workers or kasambahay;
(c) Employees of cooperatives;
(d) Counter-claims of employers against employees.
X-1.
JURISDICTION OVER CASES OF
DOMESTIC WORKERS OR KASAMBAHAY
X-2.
JURISDICTION OVER CASES OF
EMPLOYEES OF COOPERATIVES
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X-3.
JURISDICTION OVER COUNTER-CLAIMS OF EMPLOYERS
XI-A.
CLAIMS FOR DAMAGES ARISING FROM BREACH OF NON-COMPETE CLAUSE AND
OTHER POST-EMPLOYMENT PROHIBITIONS
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XI-C.
DISMISSAL OF DIRECTORS AND CORPORATE OFFICERS
1. LABOR ARBITERS HAVE NO JURISDICTION.
The dismissal of a director or corporate officer is an intra-corporate
dispute cognizable by the Regional
Trial Court and not by the Labor Arbiter.
2. MATLING DOCTRINE.
Under this doctrine, 1 the following rules should be observed:
(1) The dismissal of regular employees falls under the jurisdiction of
Labor Arbiters; while that of
corporate officers falls within the jurisdiction of the regular
courts.
(2) The term “corporate officers” refers only to those expressly
mentioned in the Corporation Code and
By-Laws; all other officers not so mentioned therein are deemed
employees.
(3) Corporate officers are elected or appointed by the directors or
stockholders, and those who are given
that character either by the Corporation Code or by the
corporation’s by-laws.
(4) The Corporation Code specifically mentions only the following
corporate officers, to wit: president,
secretary and treasurer and such other officers as may be provided
for in the by-laws.
(5) The Board of Directors can no longer create corporate offices
because the power of the Board of
Directors to create a corporate office cannot be delegated.
Therefore, the term “corporate officers”
should only refer to the above and to no other. A different
interpretation can easily leave the way open
for the Board of Directors to circumvent the constitutionally
guaranteed security of tenure of the
employee by the expedient inclusion in the By-Laws of an enabling
clause on the creation of just any
corporate officer position.
(6) Distinction between a corporate officer and an employee. - An
“office” is created by the charter of
the corporation and the “corporate officer” is elected by the
directors or stockholders. On the other
hand, an “employee” occupies no office and generally is employed
not by the action of the directors or
stockholders but by the managing officer of the corporation who
also determines the compensation to
be paid to such employee.
(7) Because of the Matling doctrine, the rulings in Tabang and Nacpil,
are no longer controlling because
they are “too sweeping and do not accord with reason, justice, and
fair play.”
(8) The status of an employee as director and stockholder does not
automatically convert his
dismissal into an intra-corporate dispute.
(9) TWO (2) ELEMENTS TO DETERMINE WHETHER A DISPUTE IS INTRA-CORPORATE
OR NOT.
(a) The status or relationship of the parties (Relationship test);
and
(b) The nature of the question that is the subject of their
controversy. (Nature of controversy test).
In the absence of any one of these factors, the RTC will not have
jurisdiction.
(10) The criteria do not depend on the services performed but on the
manner of creation of the office.
In Matling, respondent Corros was supposedly at once an employee,
a stockholder, and a Director of
Matling. The circumstances surrounding his appointment to office
must be fully considered to
determine whether the dismissal constituted an intra-corporate
controversy or a labor termination
dispute. It must also be considered whether his status as
Director and stockholder had any relation at
all to his appointment and subsequent dismissal as Vice President
for Finance and Administration.
1 Enunciated in the 2010 case of Matling Industrial and Commercial Corp. v. Ricardo
R. Coros, G.R. No. 157802, Oct. 13, 2010. This case is an appeal via petition for
review on certiorari. The petitioners challenge the decision of the CA which
sustained the ruling of the NLRC to the effect that the Labor Arbiter had
jurisdiction because
the respondent, its Vice President for Finance and Administration, was not a
corporate officer of petitioner Matling.
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XI-D.
LABOR CASES INVOLVING ENTITIES IMMUNE FROM SUIT
1. IMMUNE ENTITIES CANNOT BE SUED FOR LABOR LAW VIOLATIONS.
In this jurisdiction, the generally accepted principles of international
law are recognized and adopted as part
of the law of the land. Immunity of a State and international organizations from
suit is one of these universally
recognized principles. It is on this basis that Labor Arbiters or other labor
tribunals have no jurisdiction over
immune entities.
2. ILLUSTRATIVE CASE.
In Department of Foreign Affairs v. NLRC,1 involving an illegal dismissal
case filed against the Asian
Development Bank (ADB), it was ruled that said entity enjoys immunity from legal
process of every form and
therefore the suit against it cannot prosper. And this immunity extends to its
officers who also enjoy immunity in
respect of all acts performed by them in their official capacity. The Charter and
the Headquarters Agreement
granting these immunities and privileges to the ADB are treaty covenants and
commitments voluntarily assumed by
the Philippine government which must be respected.
3. EXCEPTION TO THE RULE.
There is an exception to the immunity rule as exemplified by the case of
United States v. Hon. Rodrigo, 2
where it was held that when the function of the foreign entity otherwise immune
from suit partakes of the nature of a
proprietary activity, such as the restaurant services offered at John Hay Air
Station undertaken by the United States
Government as a commercial activity for profit and not in its governmental
capacity, the case for illegal dismissal
filed by a Filipino cook working therein is well within the jurisdiction of
Philippine courts. The reason is that by
entering into the employment contract with the cook in the discharge of its
proprietary functions, it impliedly
divested itself of its sovereign immunity from suit.
4. ESTOPPEL DOES NOT CONFER JURISDICTION OVER AN IMMUNE ENTITY.
An entity immune from suit cannot be estopped from claiming such
diplomatic immunity since estoppel
does not operate to confer jurisdiction to a tribunal that has none over a cause of
action.
XI-E.
DOCTRINE OF FORUM NON CONVENIENS
1 G.R. No. 113191, Sept. 18, 1996, 262 SCRA 39, 43-44.
2 G.R. No. 79470, Feb. 26, 1990, 182 SCRA 644, 660.
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1. REQUISITES.
This doctrine is an international law principle which has been applied to
labor cases. The following are the
requisites for its applicability:
(1) That the Philippine court is one to which the parties may
conveniently resort;
(2) That the Philippine court is in a position to make an intelligent
decision as to the law and the facts; and
(3) That the Philippine court has or is likely to have power to enforce
its decision.
2. APPLICATION TO LABOR CASES.
a. Case where doctrine was rejected.
Petitioners’ invocation of this principle was rejected in Pacific
Consultants International Asia, Inc. v.
Schonfeld.1 Petitioners’ insistence was based on the fact that respondent is a
Canadian citizen and was a repatriate.
In so rejecting petitioners’ contention, the Supreme Court cited the following
reasons that do not warrant the
application of the said principle: (1) the Labor Code does not include forum non
conveniens as a ground for the
dismissal of the complaint; and (2) the propriety of dismissing a case based on
this principle requires a factual
determination; hence, it is properly considered as a defense.
b. Case where doctrine was applied.
This doctrine was applied in the case of The Manila Hotel Corp. and
Manila Hotel International
Limited v. NLRC, 2 where private respondent Marcelo Santos was an overseas worker
employed as a printer in a
printing press in the Sultanate of Oman when he was directly hired by the Palace
Hotel, Beijing, People’s Republic
of China to work in its print shop. This hotel was being managed by the Manila
Hotel International Ltd., a foreign
entity registered under the laws of Hong Kong. Later, he was terminated due to
retrenchment occasioned by business
reverses brought about by the political upheaval in China (referring to the
Tiananmen Square incident) which
severely affected the hotel’s operations.
In holding that the NLRC was a seriously inconvenient forum, the Supreme
Court noted that the main
aspects of the case transpired in two foreign jurisdictions and the case involves
purely foreign elements. The only
link that the Philippines has with the case is that the private respondent employee
(Marcelo Santos) is a Filipino
citizen. The Palace Hotel and MHICL are foreign corporations. Consequently, not all
cases involving Filipino
citizens can be tried here. Respondent employee was hired directly by the Beijing
Palace Hotel, a foreign employer,
through correspondence sent to him while he was working at the Sultanate of Oman.
He was hired without the
intervention of the POEA or any authorized recruitment agency of the government.
Hence, the NLRC is an
inconvenient forum given that all the incidents of the case - from the time of
recruitment, to employment to
dismissal - occurred outside the Philippines. The inconvenience is compounded by
the fact that the proper
defendants, the Palace Hotel and MHICL, are not nationals of the Philippines.
Neither are they “doing business in
the Philippines.” Likewise, the main witnesses, Mr. Shmidt (General Manager of the
Palace Hotel) and Mr. Henk
(Palace Hotel’s Manager) are non-residents of the Philippines.
Neither can an intelligent decision be made as to the law governing the
employment contract as such was
perfected in foreign soil. This calls to fore the application of the principle of
lex loci contractus (the law of the place
where the contract was made). It must be noted that the employment contract was not
perfected in the Philippines.
Private respondent employee signified his acceptance thereof by writing a letter
while he was in the Sultanate of
Oman. This letter was sent to the Palace Hotel in the People’s Republic of China.
Neither can the NLRC determine
the facts surrounding the alleged illegal dismissal as all acts complained of took
place in Beijing, People’s Republic
of China. The NLRC was not in a position to determine whether the Tiananmen Square
incident truly adversely
affected the operations of the Palace Hotel as to justify respondent employee’s
retrenchment.
Even assuming that a proper decision could be reached by the NLRC, such
would not have any binding
effect against the employer, the Palace Hotel, which is a corporation incorporated
under the laws of China and was
not even served with summons. Jurisdiction over its person was not acquired. This
is not to say that Philippine
courts and agencies have no power to solve controversies involving foreign
employers. Neither could it be said that
the Supreme Court does not have power over an employment contract executed in a
foreign country. If the
respondent employee were an “overseas contract worker”, a Philippine forum,
specifically the POEA, not the
NLRC, would protect him. He is not an “overseas contract worker”, a fact which he
admits with conviction.
XI-F.
CONSTITUTIONALITY OF LABOR CONTRACT STIPULATIONS
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2.
REQUIREMENTS TO PERFECT APPEAL TO NLRC
I.
APPEAL IN GENERAL
1. APPEAL, MEANING AND NATURE.
The term “appeal” refers to the elevation by an aggrieved party to an
agency vested with appellate
authority of any decision, resolution or order disposing the principal issues of a
case rendered by an agency vested
with original jurisdiction, undertaken by filing a memorandum of appeal.
2. SOME PRINCIPLES ON APPEAL.
• Appeals under Article 223 apply only to appeals from the Labor Arbiter’s
decisions, awards or orders to the
Commission (NLRC).
• There is no appeal from the decisions, orders or awards of the NLRC. Clearly,
therefore, Article 223 of the
Labor Code is not the proper basis for elevating the case to the Court of
Appeals or to the Supreme Court. The
proper remedy from the decisions, awards or orders of the NLRC to the Court of
Appeals is a Rule 65 petition
for certiorari and from the Court of Appeals to the Supreme Court, a Rule 45
petition for review on certiorari.
• Appeal from the NLRC to the DOLE Secretary and to the President had long been
abolished.
• Appeal is not a constitutional right but a mere statutory privilege. Hence,
parties who seek to avail of it must
comply with the statutes or rules allowing it.
• A motion for reconsideration is unavailing as a remedy against a decision of
the Labor Arbiter. The Labor
Arbiter should treat the said motion as an appeal to the NLRC.
• A “Petition for Relief” should be treated as appeal.
• Affirmative relief is not available to a party who failed to appeal. A party
who does not appeal from a
decision of a court cannot obtain affirmative relief other than the ones
granted in the appealed decision.
3. GROUNDS FOR APPEAL TO THE COMMISSION (NLRC).
The appeal to the NLRC may be entertained only on any of the following
grounds:
a. If there is a prima facie evidence of abuse of discretion on the part
of the Labor Arbiter;
b. If the decision, order or award was secured through fraud or coercion,
including graft and corruption;
c. If made purely on questions of law; and/or
d. If serious errors in the findings of fact are raised which, if not
corrected, would cause grave or
irreparable damage or injury to the appellant.
• NLRC has certiorari power.
The first ground above regarding prima facie evidence of abuse of
discretion on the part of the Labor
Arbiter is actually an exercise of certiorari power by the NLRC. The case of Triad
Security & Allied Services, Inc.
v. Ortega,1 expressly recognized this certiorari power of the NLRC. Clearly,
according to the 2012 case of Auza, Jr.
v. MOL Philippines, Inc.,2 the NLRC is possessed of the power to rectify any abuse
of discretion committed by the
Labor Arbiter.
II.
PERFECTION OF APPEAL
1. EFFECT OF PERFECTION OF APPEAL ON EXECUTION.
To reiterate, the perfection of an appeal shall stay the execution of the
decision of the Labor Arbiter except
execution for reinstatement pending appeal.
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IV.
APPEAL FEE AND LEGAL RESEARCH FEE
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1. PAYMENT OF APPEAL FEE AND LEGAL RESEARCH FEE, MANDATORY AND JURISDICTIONAL.
The payment by the appellant of the prevailing appeal fee and legal
research fee is both mandatory and
jurisdictional. An appeal is perfected only when there is proof of payment of the
appeal fee. It is by no means a
mere technicality. If not paid, the running of the reglementary period for
perfecting an appeal will not be tolled.
V.
MEMORANDUM OF APPEAL
1. REQUISITES.
The requisites for a valid Memorandum of Appeal are as follows:
1. The Memorandum of Appeal should be verified by the appellant himself in
accordance with the Rules of
Court, as amended;
2. It should be presented in three (3) legibly typewritten or printed
copies;
3. It shall state the grounds relied upon and the arguments in support
thereof, including the relief prayed
for;
4. It shall contain a statement of the date the appellant received the
appealed decision, award or order; and
5. It shall be accompanied by:
(i) proof of payment of the required appeal fee and legal research
fee;
(ii) posting of a cash or surety bond (in case of monetary awards);
and
(iii) proof of service upon the other party.
2. REQUIREMENTS NOT JURISDICTIONAL.
The aforesaid requirements that should be complied with in a Memorandum
of Appeal are merely a
rundown of the contents of the required appeal memorandum to be submitted by the
appellant. They are not
jurisdictional requirements.
3. SOME PRINCIPLES ON MEMORANDUM OF APPEAL.
• Mere notice of appeal without complying with the other requisites aforestated
shall not stop the running
of the period for perfecting an appeal.
• Memorandum of appeal is not similar to motion for reconsideration.
• Lack of verification in a memorandum of appeal is not a fatal defect. It may
easily be corrected by
requiring an oath.
• An appeal will be dismissed if signed only by an unauthorized representative.
• Only complainants who signed the memorandum of appeal are deemed to have
appealed the Labor
Arbiter’s decision. The prevailing doctrine in labor cases is that a party who
has not appealed cannot obtain
from the appellate court any affirmative relief other than those granted, if
any, in the decision of the lower
tribunal.
VI.
PROOF OF SERVICE TO ADVERSE PARTY
1. FAILURE TO SERVE COPY TO ADVERSE PARTY, NOT FATAL.
While it is required that in all cases, the appellant shall furnish a
copy of the Memorandum of Appeal to the
other party (appellee), non-compliance therewith, however, will not be an obstacle
to the perfection of the appeal;
nor will it amount to a jurisdictional defect on the NLRC’s taking cognizance
thereof.
VII.
POSTING OF BOND
1. WHEN POSTING OF BOND REQUIRED.
Only in case the decision of the Labor Arbiter or the DOLE Regional
Director (under Article 129 of the
Labor Code) involves a monetary award, that an appeal by the employer may be
perfected only upon the posting of
a bond, which shall either be in the form of (1) cash deposit, (2) surety bond or
(3) property bond, equivalent in
amount to the monetary award, but excluding the amount of damages (moral and
exemplary) and attorney’s fees.
In other words, only monetary awards (such as unpaid wages, backwages, separation
pay, 13th month pay,
etc.) are required to be covered by the bond. Moral and exemplary damages and
attorney’s fees are excluded.
2. SOME PRINCIPLES ON POSTING OF BOND.
• Posting of bond is mandatory and jurisdictional.
• The cash or surety bond required for the perfection of appeal should be posted
within the reglementary
period. If a party failed to perfect his appeal by the non-payment of the
appeal bond within the 10-calendar day
period provided by law, the decision of the Labor Arbiter becomes final and
executory upon the expiration of
the said period.
• In case the employer failed to post a bond to perfect its appeal, the remedy of
the employee is to file a
motion to dismiss the appeal and not a petition for mandamus for the issuance
of a writ of execution.
• Surety bond must be issued by a reputable bonding company duly accredited by
the Commission (NLRC) or the
Supreme Court.
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• The bond shall be valid and effective from the date of deposit or posting,
until the case is finally decided,
resolved or terminated, or the award satisfied.
• Posting of a bank guarantee or bank certification is not sufficient compliance
with the bond requirement.
It is not equivalent to nor can be considered compliance with the cash, surety
or property bond.
• Cooperatives are not exempted from posting bond.
• Government is exempt from posting of bond; government-owned and/or controlled
corporations, however,
are not exempt therefrom.
• Bond is not required for the NLRC to entertain a motion for reconsideration.
An appeal bond is required
only for the perfection of an appeal of a Labor Arbiter’s decision involving a
monetary award.
• Bond is not required to file a Rule 65 petition for certiorari.
VII-A.
RULE ON REDUCTION OF APPEAL BOND
1. REQUISITES WHEN THE AMOUNT OF APPEAL BOND MAY BE REDUCED.
(1) The motion should be filed within the reglementary period;
(2) The motion to reduce bond should be based on meritorious grounds;
and
(3) The motion should be accompanied by a partial bond, the amount of
which should be reasonable in
relation to the monetary awards.
2. THE MCBURNIE DOCTRINE: NEW GUIDELINES FOR FILING AND ACCEPTANCE OF MOTIONS
TO REDUCE BOND.
The 2013 en banc decision rendered in the case of Andrew James Mcburnie
v. Eulalio Ganzon, 1 has
enunciated the following guidelines that must be observed in the matter of the
filing and acceptance of motions to
reduce appeal bond, as provided in Section 6, Rule VI of the 2011 NLRC Rules of
Procedure:
(a) The filing of a motion to reduce appeal bond shall be entertained by
the NLRC subject to the following
conditions: (1) there is meritorious ground; and (2) a bond in a
reasonable amount is posted;
(b) For purposes of compliance with condition no. (2) above, a motion
shall be accompanied by the
posting of a provisional cash or surety bond equivalent to ten
percent (10%) of the monetary award
subject of the appeal, exclusive of damages and attorney's fees;
(c) Compliance with the foregoing conditions shall suffice to suspend the
running of the 10-day
reglementary period to perfect an appeal from the Labor Arbiter’s
decision to the NLRC;
(d) The NLRC retains its authority and duty to resolve the motion to
reduce bond and determine the final
amount of bond that shall be posted by the appellant, still in
accordance with the standards of
meritorious grounds and reasonable amount; and
(e) In the event that the NLRC denies the motion to reduce bond, or
requires a bond that exceeds the
amount of the provisional bond, the appellant shall be given a fresh
period of ten (10) days from notice
of the NLRC order within which to perfect the appeal by posting the
required appeal bond.
This Mcburnie ruling has completely overhauled the rules on motion to
reduce bond. Before its advent, the
issue of what amount to post by way of partial or provisional bond has continued to
hound the party litigants and the
courts. Now, the fixing of “ten percent (10%) of the monetary award subject of the
appeal, exclusive of damages
and attorney's fees” as the “reasonable amount” that should be posted has
completely eradicated any and all
controversies thereon. In other words, no more motion for reduction of bond
accompanied by said 10% requirement
would be denied outright on the ground of insufficiency or inadequacy of the
partial or provisional bond.
What is left for the determination by the NLRC, using its sound judgment
and discretion, are only the
issues of (1) the reasonable final amount of the bond; and (2) what constitute
“meritorious grounds.” This
determination is important since “in all cases, the reduction of the appeal bond
shall be justified by meritorious
grounds and accompanied by the posting of the required appeal bond in a reasonable
amount.”2
1 G.R. Nos. 178034, 178117, 186984 and 186985, Oct. 17, 2013.
2 Andrew James Mcburnie v. Eulalio Ganzon, G.R. Nos. 178034, 178117, 186984 and
186985, Oct. 17, 2013.
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The rule set in McBurnie was clarified1 by the Court in the consolidated
cases of Sara Lee Philippines v.
Ermilinda Macatlang.2 Thus, while McBurnie has effectively addressed the
preliminary amount of the bond to be
posted in order to toll the running of the period to appeal, there is no hard and
fast rule in determining whether the
additional bond to be posted is reasonable in relation to the judgment award. In
this case of Sara Lee, petitioner
companies3 were held liable by the Labor Arbiter for the illegal dismissal of 5,984
employees with accompanying
award of separation pay and other monetary benefits amounting to P3,453,664,710.86.
Petitioner companies filed
their Notice of Appeal with Motion to Reduce Appeal Bond and To Admit Reduced
Amount with the NLRC. They
asked the NLRC to reduce the appeal bond to P1 Million each on the grounds that it
is impossible for any insurance
company to cover such huge amount and that, in requiring them to post in full the
appeal bond, it would be
tantamount to denying them their right to appeal.
In light of the impossibility for any surety company to cover the appeal
bond and the huge economic losses
which the companies and their employees might suffer if the P3.45 Billion bond is
sustained, the NLRC granted the
reduction of the appeal bond. The NLRC issued an Order dated 31 March 2006
directing petitioner corporations to
post an additional P4.5 Million bond, bringing the total posted bond to P9 Million.
The Court of Appeals, however,
reversed and set aside the said 31 March 2006 NLRC Resolution and deemed it
reasonable under the circumstances
of the case to order the posting of an additional appeal bond of P1 Billion.
Considering the peculiar circumstances in Sara Lee, the Court has to
determine what is the reasonable
amount of appeal bond. The fact was underscored that the amount of 10% of the award
is not a permissible bond
but is only such amount that shall be deemed reasonable in the meantime that the
appellant’s motion is pending
resolution by the NLRC. The actual reasonable amount yet to be determined is
necessarily a bigger amount. In an
effort to strike a balance between the constitutional obligation of the state to
afford protection to labor, on the one
hand, and the opportunity afforded to the employer to appeal, on the other, it
considered the appeal bond in the
amount of P725M which is equivalent to 25% of the monetary award sufficient to
perfect the appeal, viz.:
“We sustain the Court of Appeals in so far as it increases the amount of
the required appeal bond.
But we deem it reasonable to reduce the amount of the appeal bond to P725
Million. This directive
already considers that the award if not illegal, is extraordinarily huge
and that no insurance
company would be willing to issue a bond for such big money. The amount
of P725 Million is
approximately 25% of the basis above calculated. It is a balancing of the
constitutional obligation
of the state to afford protection to labor which, specific to this case,
is assurance that in case of
affirmance of the award, recovery is not negated; and on the other end of
the spectrum, the
opportunity of the employer to appeal.
“By reducing the amount of the appeal bond in this case, the employees
would still be assured of
at least substantial compensation, in case a judgment award is affirmed.
On the other hand,
management will not be effectively denied of its statutory privilege of
appeal.”
In line with Sara Lee and the objective that the appeal on the merits to
be threshed out soonest by the
NLRC, the Court, in the 2015 case of Balite v. SS Ventures International, Inc.,4
held that the appeal bond of
P100,000.00 posted by the respondent company for the total monetary award of
P490,308.00, which is equivalent to
around 20% thereof, is sufficient to perfect the appeal. With the employer's
demonstrated good faith in filing the
motion to reduce the bond on demonstrable grounds coupled with the posting of the
appeal bond in the requested
amount, as well as the filing of the memorandum of appeal, the right of the
employer to appeal must be upheld. This
is in recognition of the importance of the remedy of appeal, which is an essential
part of our judicial system and the
need to ensure that every party litigant is given the amplest opportunity for the
proper and just disposition of his
cause freed from the constraints of technicalities.
3.
REINSTATEMENT PENDING APPEAL
1. PIONEER TEXTURIZING DOCTRINE: REINSTATEMENT ASPECT OF LABOR ARBITER’S
DECISION, IMMEDIATELY EXECUTORY EVEN PENDING APPEAL; NO WRIT OF EXECUTION
REQUIRED.
According to the Pioneer Texturizing doctrine, an order of reinstatement
issued by the Labor Arbiter under
Article 229 [223] of the Labor Code is self-executory or immediately executory even
pending appeal. This means
that the perfection of an appeal shall stay the execution of the decision of the
Labor Arbiter except execution of the
reinstatement pending appeal.
2. REINSTATEMENT PENDING APPEAL, APPLICABLE ONLY TO THE REINSTATEMENT ORDER
ISSUED BY THE LABOR ARBITER; WRIT OF EXECUTION REQUIRED WHEN REINSTATEMENT
IS ORDERED BY NLRC ON APPEAL, OR SUBSEQUENTLY BY THE COURT OF APPEALS OR
SUPREME COURT, AS THE CASE MAY BE.
By way of distinction, the rule on reinstatement pending appeal applies
only to the order of reinstatement
issued by the Labor Arbiter and to no other. This means that if the reinstatement
order is issued by the NLRC on
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B.
NATIONAL LABOR RELATIONS COMMISSION (NLRC)
1. NATURE.
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2.
EFFECT OF NLRC REVERSAL OF
LABOR ARBITER’S ORDER OF REINSTATEMENT
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rehabilitation proceedings, was resolved in the negative by the Supreme Court. The
following ratiocinations were
cited:
(1) Re: modification of the Genuino doctrine. - The “refund doctrine” in
Genuino should no longer be
observed because it easily demonstrates how a favorable decision by the Labor
Arbiter could harm, more than help,
a dismissed employee. The employee, to make both ends meet, would necessarily have
to use up the salaries
received during the pendency of the appeal, only to end up having to refund the sum
in case of a final unfavorable
decision. It is mirage of a stop-gap leading the employee to a risky cliff of
insolvency. Further, the Genuino ruling
not only disregards the social justice principles behind the rule, but also
institutes a scheme unduly favorable to
management. Under such scheme, the salaries dispensed pendente lite merely serve as
a bond posted in installment
by the employer. For in the event of a reversal of the Labor Arbiter’s decision
ordering reinstatement, the employer
gets back the same amount without having to spend ordinarily for bond premiums.
This circumvents, if not directly
contradicts, the proscription that the “posting of a bond [even a cash bond] by the
employer shall not stay the
execution for reinstatement.”
(2) Re: modification of the Roquero doctrine. – The Roquero doctrine was
reaffirmed but with the
modification that “[a]fter the Labor Arbiter’s decision is reversed by a higher
tribunal, the employee may be barred
from collecting the accrued wages, if it is shown that the delay in enforcing the
reinstatement pending appeal was
without fault on the part of the employer.”
b. Two-fold test under the Garcia doctrine.
Under Garcia, the test to determine the liability of the employer (who did
not reinstate the employee
pending appeal) to pay the wages of the dismissed employee covering the period from
the time he was ordered
reinstated by the Labor Arbiter to the reversal of the Labor Arbiter’s decision
either by the NLRC, the Court of
Appeals or the High Court, is two-fold, to wit:
(1) There must be actual delay or the fact that the order of reinstatement
pending appeal was not executed
prior to its reversal; and
(2) The delay must not be due to the employer’s unjustified act or
omission. If the delay is due to the
employer’s unjustified refusal, the employer may still be required to
pay the salaries notwithstanding
the reversal of the Labor Arbiter’s decision.
In Garcia, there was actual delay in reinstating petitioners but
respondent PAL was justified in not
complying with the reinstatement order of the Labor Arbiter because during the
pendency of the illegal dismissal
case, the SEC placed respondent PAL under an Interim Rehabilitation Receiver who,
after the Labor Arbiter
rendered his decision, was replaced with a Permanent Rehabilitation Receiver. It is
settled that upon appointment
by the SEC of a rehabilitation receiver, all actions for claims before any court,
tribunal or board against the
corporation shall ipso jure be suspended. Resultantly, respondent PAL’s “failure to
exercise the alternative options
of actual reinstatement and payroll reinstatement was thus justified. Such being
the case, respondent’s obligation to
pay the salaries pending appeal, as the normal effect of the non-exercise of the
options, did not attach.”
c. Cases decided after the promulgation of the Garcia doctrine.
Subsequent to Garcia, some of the cases decided in accordance with this
doctrine are as follows:
(1) College of the Immaculate Conception v. NLRC (2010);
(2) Islriz Trading v. Capada (2011);
(3) Pfizer, Inc. v. Velasco (2011); and
(4) C. Alcantara & Sons, Inc. v. CA (2012).
2. RECKONING OF THE PERIOD COVERED BY ACCRUED REINSTATEMENT WAGES.
To clarify, employees ordered reinstated by the Labor Arbiter are
entitled to accrued reinstatement wages
only from the time the employer received a copy of the Labor Arbiter’s decision
declaring the employees’
termination illegal and ordering their reinstatement up to the date of the decision
of the appellate tribunal
overturning that of the Labor Arbiter. It is not accurate therefore to state that
such entitlement commences “from
the moment the reinstatement order was issued up to the date when the same was
reversed by a higher court without
fear of refunding what he had received.”
4. SOME PRINCIPLES ON REINSTATEMENT WAGES.
• Employer is not liable to pay any reinstatement backwages if reinstatement is
ordered not by the Labor Arbiter
but by the NLRC on appeal and it was not executed by writ and its finding of
illegal dismissal is later reversed
by the Court of Appeals and/or Supreme Court.
• Payroll-reinstated employee is entitled not only to reinstatement wages but
also to other benefits during the
period of payroll reinstatement until the illegal dismissal case is reversed by
a higher tribunal.
• Award of additional backwages and other benefits from the time the Labor
Arbiter ordered reinstatement until
actual or payroll reinstatement is proper and valid.
C.
COURT OF APPEALS
1.
RULE 65, RULES OF COURT
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1. RULE 65 PETITION FOR CERTIORARI, THE ONLY MODE OF ELEVATING A LABOR CASE TO
THE COURT OF APPEALS.
The only mode by which a labor case decided by any of the following labor
authorities/tribunals may reach
the Court of Appeals is through a Rule 65 petition for certiorari.
(a) the DOLE Secretary;
(b) the Commission (NLRC); and
(c) the Director of the Bureau of Labor Relations (BLR) in cases
decided by him in his appellate
jurisdiction (as distinguished from those he decides in his
original jurisdiction which are appealable to
the DOLE Secretary).
The remedy of ordinary appeal to the Court of Appeals is not available
from their decisions, orders or
awards. The reason for this rule is that their decisions, orders or awards are
final and executory and therefore
inappealable.
2. THE ONLY EXCEPTION.
The only exception to the foregoing rule is in the case of decisions,
orders or awards issued by the
Voluntary Arbitrator or panel of Voluntary Arbitrators which may be elevated to the
Court of Appeals by way
of an ordinary appeal under a Rule 43 petition for review.
3. FILING OF MOTION FOR RECONSIDERATION OF THE DECISION OF THE DOLE SECRETARY,
THE COMMISSION (NLRC) OR THE BLR DIRECTOR, A PRE-REQUISITE TO FILING OF RULE 65
PETITION FOR CERTIORARI.
The rule on the filing of a Motion for Reconsideration of the decision of
the DOLE Secretary, the NLRC
and the BLR Director is mandatory and jurisdictional. Failure to comply therewith
would result in the dismissal of
the Rule 65 certiorari petition. Jurisprudence abounds enunciating the rule that a
motion for reconsideration is a pre-
requisite for the filing of a special civil action for certiorari.
The reason for this rule is that in labor cases, a motion for
reconsideration is the plain and adequate
remedy from an adverse decision of the DOLE Secretary, the NLRC and the BLR
Director.
• THE PHILTRANCO DOCTRINE: a motion for reconsideration should be filed even
though it is not
required or even prohibited by the concerned government office. This was
the rule enunciated in the
2014 case of Philtranco Service Enterprises, Inc. v. Philtranco Workers
Union-Association of Genuine
Labor Organizations (PWU-AGLO).1 Thus, while a government office may
prohibit altogether the filing
of a motion for reconsideration with respect to its decisions or orders,
the fact remains that certiorari
inherently requires the filing of a motion for reconsideration which is
the tangible representation of the
opportunity given to the office to correct itself. Unless it is filed,
there could be no occasion to rectify.
Worse, the remedy of certiorari would be unavailing. Simply put,
regardless of the proscription against the
filing of a motion for reconsideration, the same may be filed on the
assumption that rectification of the
decision or order must be obtained and before a petition for certiorari
may be instituted.
4. CERTIORARI PETITION MAY BE FILED EVEN IF THE DECISION OF THE DOLE SECRETARY,
THE COMMISSION (NLRC), OR THE BLR DIRECTOR HAS ALREADY BECOME FINAL AND
EXECUTORY.
This rule applies to the decisions rendered by the DOLE Secretary, the NLRC
or the BLR Director (in cases
which he decided in his appellate jurisdiction).
If the CA grants the petition and nullifies their decisions on the ground
of grave abuse of discretion
amounting to excess or lack of jurisdiction, such decisions are, in contemplation
of law, null and void ab initio;
hence, they never became final and executory.
2.
JUDICIAL REVIEW OF DECISIONS
OF VOLUNTARY ARBITRATORS
1 G.R. No. 180962, Feb. 26, 2014. Although this case involves a decision of the
DOLE Secretary, the principle enunciated herein equally applies to the NLRC.
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Hence, in a petition for certiorari from the awards or decisions of the Voluntary
Arbitrator, the Court of Appeals has
concurrent jurisdiction with the Supreme Court.
In Alcantara, Jr. v. CA, 1 it was held that Luzon Development Bank is
still a good law.
3. PERIOD OF APPEAL – 15 DAYS.
Rule 43 of the Rules of Court requires that the petition for review to be
taken to the Court of Appeals
should be filed within fifteen (15) days from notice of the award, judgment or
final order or resolution of the
Voluntary Arbitrator.
D.
SUPREME COURT
1.
RULE 45, RULES OF COURT
1. RULE 45 PETITION FOR REVIEW ON CERTIORARI, THE ONLY MODE BY WHICH A LABOR
CASE MAY REACH THE SUPREME COURT.
Since the Court of Appeals has jurisdiction over the petition for
certiorari under Rule 65 that may be filed
before it from the decisions of the NLRC or the DOLE Secretary or the BLR Director
(in cases decided by him in
his appellate jurisdiction), any alleged errors committed by it in the exercise of
its jurisdiction would be errors of
judgment which are reviewable by means of a timely appeal to the Supreme Court and
not by a special civil action
of certiorari.
If the aggrieved party fails to do so within the reglementary period and
the decision accordingly becomes
final and executory, he cannot avail himself of the writ of certiorari, his
predicament being the effect of his
deliberate inaction. A petition for certiorari under Rule 65 cannot be a substitute
for a lost appeal under Rule
45; hence, it should be dismissed.
2. THE NEYPES DOCTRINE (FRESH PERIOD RULE) - FRESH PERIOD FROM DENIAL OF MOTION
FOR RECONSIDERATION.
In the 2013 case of Elizabeth Gagui v. Dejero,2 petitioner successively
filed two Motions for
Reconsideration of the CA’s decision but both were denied. Petitioner elevated the
case to the Supreme Court under
Rule 45. In their comment, respondents alleged that the instant petition had been
filed 15 days after the prescriptive
period of appeal under Section 2, Rule 45 of the Rules of Court. In her reply,
petitioner countered that she has a
fresh period of 15 days from the date she received the Resolution of the CA to file
the instant Rule 45 petition. In
affirming the contention of petitioner, the Supreme Court cited the en banc ruling
in the case of Neypes v. CA 3
which standardized the appeal periods, thus:
“To standardize the appeal periods provided in the Rules and to
afford litigants fair opportunity to appeal
their cases, the Court deems it practical to allow a fresh period of
15 days within which to file the notice of appeal
in the Regional Trial Court, counted from receipt of the order
dismissing a motion for a new trial or motion for
reconsideration.
“Henceforth, this ‘fresh period rule’ shall also apply to Rule 40
governing appeals from the Municipal Trial
Courts to the Regional Trial Courts; Rule 42 on petitions for review
from the Regional Trial Courts to the Court of
Appeals; Rule 43 on appeals from quasi-judicial agencies to the Court
of Appeals and Rule 45 governing
appeals by certiorari to the Supreme Court. The new rule aims to
regiment or make the appeal period uniform,
to be counted from receipt of the order denying the motion for new
trial, motion for reconsideration (whether full
or partial) or any final order or resolution.”
Consequently, since petitioner in Gagui received the CA Resolution denying
her two Motions for
Reconsideration only on 16 March 2011, she had another 15 days within which to file
her Petition, or until 31 March
2011. This Petition, filed on 30 March 2011, fell within the prescribed 15-day
period.
E.
BUREAU OF LABOR RELATIONS (BLR)
1.
JURISDICTION
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2. MED-ARBITER.
The term “Med-Arbiter” refers to an officer in the DOLE Regional Office
or in the BLR authorized to hear and
decide representation cases, inter-union or intra-union disputes and other related
labor relations disputes.1
While the Labor Code refers to this official as “Med-Arbiter,”2 it
should, however, be construed to mean
“Mediator-Arbiter.”3 Most recent DOLE issuances 4 have specifically changed such
reference to “Mediator-Arbiter” in
their provisions. This is but proper since the word “Med”5 obviously is an
abbreviation of the word “Mediator.”
3. DOLE REGIONAL DIRECTOR.
The Regional Directors are the duly authorized representatives of the
DOLE Secretary in the DOLE regional
offices. They are in charge of the administration and enforcement of labor
standards within their respective territorial
jurisdictions.6 Although, like the Med-Arbiters, they are not also specifically
mentioned in said article, it is a known
procedural rule, however, that in addition to their jurisdiction over cases falling
under Articles 1287 and 1298 of the Labor
Code, they also have jurisdiction over certain specified cases contemplated under
Article 232 [226] of the same Code such
as disputes concerning union registration and cancellation of union registration as
well as CBA registration or
deregistration cases.
4. BLR DIRECTOR.
The BLR is headed by a Director who hears and decides certain specified
cases over which he has either original
or appellate jurisdiction. In many cases, his name, instead of the BLR, is usually
the one impleaded as public respondent in
certiorari petitions to the CA or subsequent appeals to the Supreme Court. Thus,
one would encounter countless cases filed
against such luminaries like Pura-Ferrer Calleja, Cresenciano B. Trajano, Benedicto
Ernesto R. Bitonio Jr., and Hans Leo
J. Cacdac, among others, who are sued in their capacity as BLR Directors.
III.
CASES
COGNIZABLE
The following are the general classifications of the cases falling
under the jurisdiction of the said officials, to wit:
(a) Inter-union disputes;
(b) Intra-union disputes;9 and
(c) Other related labor relations disputes.10
III-A.
INTER-UNION AND INTRA-UNION
DISPUTES
1. INTER-UNION OR REPRESENTATION DISPUTE.
An “inter-union dispute” or “representation dispute” is one occurring or
carried on between or among unions.11 It
refers to a case involving a petition for certification election filed by a duly
registered labor organization which is seeking
to be recognized as the sole and exclusive bargaining agent (SEBA) of the rank-and-
file employees or supervisory
1 Section 1 [ii], Rule I, Book V, Rules to Implement the Labor Code, as amended by
Department Order No. 40-03, Series of 2003, [Feb. 17, 2003]. Excepted from the Med-
Arbiter’s
jurisdiction are cases over which the Regional Director exercises original and
exclusive jurisdiction such as application for union registration, petitions for
cancellation of union
registration and complaints for examination of unions books of accounts.” This
is per Section 3, Rule II [Med-Arbitration], Rules of Procedure on Mediation-
Arbitration, which provides:
“SEC. 3. Jurisdiction of the Regional Director.- The Regional Director shall
exercise original and exclusive jurisdiction over application for union
registration, petitions for cancellation of
union registration and complaints for examination of unions books of accounts.”
See also Barles v. Bitonio, G.R. No. 120220, June 16, 1999.
2 The term “Med-Arbiter” is used and cited in the following articles of the Labor
Code: Articles 230 [224] (Execution of decisions, orders or awards), 268 [256]
(Representation issue in
organized establishments), 269 [257] (Petitions in unorganized establishments),
272 [259] (Appeal from certification election orders), and 292 [277] (Miscellaneous
provisions),
paragraph (i) thereof. Surprisingly, Med-Arbiter is not referred to at all in
Article 232 [226].
3 Nowhere, however, in the Labor Code is the term “Mediator-Arbiter” used or cited.
4 Such as Department Order No. 40-F-03, Series of 2008, issued on October 30, 2008.
This Department Order was issued by the DOLE Secretary to implement the changes in
the
Labor Code brought about by the amendments introduced thereto by R.A. No. 9481
[Effective June 14, 2007]. Another issuance is Department Order No. 40-I-15, Series
of 2015
[September 07, 2015], entitled “Further Amending Department Order No. 40, Series
of 2003, Amending the Implementing Rules and Regulations of Book V of the Labor
Code of the
Philippines, as Amended.”
7 Visitorial and enforcement powers of the DOLE Secretary and his duly authorized
representatives, the DOLE Regional Directors.
8 See Article 129, Labor Code, involving monetary claims of ₱5,000 or less.
9 Diokno v. Hon. Cacdac, G.R. No. 168475, July 4, 2007; Bautista v. CA, G.R.
123375, Feb. 28, 2005, 452 SCRA 406, 420.
10 Section 1[B] (formerly Section 2), Rule XI, Book V, Rules to Implement the Labor
Code, as amended by Department Order No. 40-F-03, Series of 2008 [Oct. 30, 2008];
Article 232
[226], Labor Code; Policy Instructions No. 6; Villaor v. Trajano, G.R. No.
69188, Sept. 23, 1986; M. Y. San Biscuits, Inc. v. Laguesma, G.R. No. 95011, April
22, 1991.
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employees, as the case may be, in the appropriate bargaining unit of a company,
firm or establishment.1 If there are two or
more legitimate unions involved, it also refers to any conflict between and among
them concerning the issue of which of
them should be certified as the SEBA for purposes of collective bargaining with the
employer. Broadly, it covers any other
conflict or dispute between legitimate labor unions.2
Note must be made of the latest innovative amendment of the Labor Code’s
Implementing Rules introduced by
Department Order No. 40-I-15, Series of 2015,3 which has expressly repealed the
entire provision4 on “Voluntary
Recognition” of the Implementing Rules on Book V and replaced it with the freshly-
minted mode of securing the status of
a sole and exclusive bargaining agent through a “Request for SEBA Certification” or
“Request.” Voluntary recognition is
therefore no longer allowed and is effectively replaced by the Request mode.
The Request basically is in the nature of an inter-union or representation
dispute. While it may not involve the
actual conduct of a certification election when it is made in an unorganized
establishment with only one (1) legitimate
union, since it would merely require a simple validation process by the DOLE
Regional Director of confirming the
majority support of the members of the bargaining unit for the requesting union and
once validated, the requesting union is
immediately certified as the SEBA without conducting a certification election,
however, certification election will have to
be conducted under any of the following situations:
(1) When the Request is made in an unorganized establishment with only
one (1) legitimate union, and the
requesting union or local fails to complete the requirements for SEBA certification
during the validation conference before
the DOLE Regional Director, such Request should be referred to the Election Officer
for the conduct of certification
election,5 in which case, such certification election should now be under the
jurisdiction of the Mediator-Arbiter.
(2) When the Request is made in an unorganized establishment with more
than one (1) legitimate labor
organization, in which case, the DOLE Regional Director, before whom Requests are
required to be filed, should refer the
Request directly to the Election Officer for the conduct of a certification
election6 in accordance with the Rules;7 and
(3) When the Request is made in an organized establishment, in which case,
the Regional Director should refer
the same to the Mediator-Arbiter for the determination of the propriety of
conducting a certification election.8
It is clear from the foregoing discussion that there is a jurisdictional
interplay between the DOLE Regional
Director and the Med-Arbiter, a subject which will be discussed further in the
sections below dwelling on the jurisdiction
of these labor authorities.
2. INTRA-UNION OR INTERNAL UNION DISPUTE.
An “intra-union dispute” or “internal union dispute” refers to a conflict
within or inside a labor union.9 It may
refer to any conflict between and among officers and/or members of one particular
union, 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-laws,10 issues over control, supervision and management
of its internal affairs,11 or disputes
arising from chartering or affiliation of a union.12
3. RUNDOWN OF INTER-UNION AND INTRA-UNION CASES.
1 Section 1 [9], Rule III, NCMB Manual of Procedures for Conciliation and
Preventive Mediation Cases; Appendix 2 [Definition of Terms], NCMB Primer on
Strike, Picketing and
Lockout, 2nd Edition, December 1995; Diokno v. Hon. Cacdac, Ibid.; Bautista v.
CA, Ibid.
2 Section 1 [x], Rule I, Book V, Rules to Implement the Labor Code, as amended by
Department Order No. 40-03, Series of 2003, [Feb. 17, 2003].
4 Particularly its Rule VII [Voluntary Recognition], Book V, Rules to Implement the
Labor Code, as amended by Department Order No. 40-03, Series of 2003, [Feb. 17,
2003]. This
provision has been repealed and replaced by a new provision entitled, "REQUEST
FOR SOLE AND EXCLUSIVE BARGAINING AGENT (SEBA) CERTIFICATION", pursuant to the
amendment introduced by Section 3, Department Order No. 40-I-15, Series of 2015
[September 07, 2015], entitled “Further Amending Department Order No. 40, Series of
2003,
Amending the Implementing Rules and Regulations of Book V of the Labor Code of
the Philippines, as Amended.”
5 Section 4, Rule VII of the Rules to Implement the Labor Code, as amended by
Department Order No. 40-I-15, Series of 2015 [September 07, 2015]. The election
should be
conducted in accordance with Rule IX thereof.
8 Section 6, Rule VII, Ibid. in accordance with Rules VIII and IX, Ibid.
10 Section 1 [bb], Rule I, Book V, Ibid.; Diokno v. Hon. Cacdac, supra; Bautista v.
CA, supra.
11 Section 1 [8], Rule III, NCMB Manual of Procedures for Conciliation and
Preventive Mediation Cases; Appendix 2 [Definition of Terms], NCMB Primer on
Strike, Picketing and
Lockout, 2nd Edition, December 1995.
12 Section 1 [bb], Rule I, Book V, Ibid.; Diokno v. Hon. Cacdac, supra; Bautista v.
CA, supra.
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III-B.
OTHER RELATED LABOR RELATIONS
DISPUTES
1. MEANING OF “OTHER RELATED LABOR RELATIONS DISPUTES.”
“Other related labor relations dispute” refers to any conflict between a
labor union and the employer or any
individual, entity or group that is not a labor union or workers’ association.4
More specifically, it may refer to any of the following:
(a) Any conflict between:
(1) a labor union and an employer, or
(2) a labor union and a group that is not a labor organization; or
(3) a labor union and an individual who is not a member of such
union;
(b) Cancellation of registration of unions and workers’ associations
filed by individuals other than its members,
or group that is not a labor organization; and
(c) A petition for interpleader involving labor relations.5
IV.
ORIGINAL AND EXCLUSIVE JURISDICTION
OF MED-ARBITERS, DOLE DIRECTORS AND BLR DIRECTOR
Having known the various cases afore-described, a discussion of the
respective jurisdictions of the Med-Arbiters,
DOLE Directors and BLR Director over these cases may now be made with greater
clarity.
1. ORIGINAL AND EXCLUSIVE JURISDICTION OF THE MED-ARBITERS.
The cases falling under the original and exclusive jurisdiction of the
Med-Arbiters are as follows:
(1) Inter-union disputes (representation or certification election
conflicts), such as:
1 See Section 1, Rule XI, Book V of the Rules to Implement the Labor Code, as
previously amended by Department Order No. 40-F-03, Series of 2008 [October 30,
2008] which
designated this section as “Section 1(A)”, and as further amended by Section 18,
Department Order No. 40-I-15, Series of 2015 [September 07, 2015], entitled
“Further Amending
Department Order No. 40, Series of 2003, Amending the Implementing Rules and
Regulations of Book V of the Labor Code of the Philippines, as Amended.”
4 Section 1 [rr], Rule I, Book V, Rules to Implement the Labor Code, as amended by
Department Order No. 40-03, Series of 2003, [Feb. 17, 2003].
5 Section 1[B] (formerly Section 2), Rule XI, Book V, Rules to Implement the Labor
Code, as amended by Department Order No. 40-F-03, Series of 2008 [Oct. 30, 2008].
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1 In case the Request is made in an unorganized establishment with only one (1)
legitimate union, and the requesting union or local fails to complete the
requirements for SEBA
certification during the validation conference before the DOLE Regional
Director, in which event, such Request should be referred to the Election Officer
for the conduct of certification
election (Section 4, Rule VII of the Rules to Implement the Labor Code, as
amended by Department Order No. 40-I-15, Series of 2015 [September 07, 2015]. The
election should be
conducted in accordance with Rule IX thereof.), which necessarily would mean
that such certification election should now be conducted under the jurisdiction of
the Mediator-Arbiter
to whom the Election Officer is duty-bound to report the outcome of the election
proceeding. Certainly, the ensuing certification election cannot be conducted under
the directive of the
DOLE Regional Director without the participation of the Mediator-Arbiter who,
under the law, is the one possessed of the original and exclusive jurisdiction over
certification election
cases, including the proclamation of the winning SEBA. (See Section 21, Rule IX,
Book V, Rules to Implement the Labor Code, as ordered renumbered by Section 17,
Department
Order No. 40-I-15, Series of 2015 [September 07, 2015]. This section was
originally numbered Section 20, per Department Order No. 40-03, Series of 2003,
[Feb. 17, 2003], but it
was subsequently re-numbered to Section 19, per Department Order No. 40-F-03,
Series of 2008 [Oct. 30, 2008]).
2 Section 5, Rule VII, in relation to Rules VIII and IX, Department Order No. 40-I-
15, Series of 2015 [September 07, 2015].
4 Section 1 [ii], Rule I, Book V, Rules to Implement the Labor Code, as amended by
Department Order No. 40-03, Series of 2003, [Feb. 17, 2003]; Section 4, Rule XI,
Book V of the
Rules to Implement the Labor Code, as amended by Department Order No. 40-F-03,
Series of 2008 [October 30, 2008]. See also Article 226, Labor Code; Policy
Instructions No. 6;
Villaor v. Trajano, G.R. No. 69188, Sept. 23, 1986.
5 Med-Arbiters have the authority to issue temporary restraining orders (TROs) and
writs of injunction in appropriate cases. Section 5, Rule XVI, Book V of the
Omnibus Rules
Implementing the Labor Code states: “Sec 5. Injunctions. -- No temporary
injunctions or restraining order in any case involving or growing out of a labor
dispute shall be issued by any
court or other entity. On the other hand, the Office of the President, the
Secretary of Labor, the Commission, the Labor Arbiter or Med-Arbiter may enjoin any
or all acts involving or
arising from any case pending before any of said offices or officials which if
not restrained forthwith may cause grave or irreparable damage to any of the
parties to the case or
seriously affect social or economic stability.”
7 Section 6, Rule VII, in relation to Rules VIII and IX, Department Order No. 40-I-
15, Series of 2015 [September 07, 2015].
8 All the cases cognizable by the DOLE Regional Directors are as follows: (a)
Visitorial (inspection) cases under Article 37; (b) Visitorial (inspection) and
enforcement cases under
Article 128; (c) Visitorial cases under Article 289 [274], involving examination
of books of accounts of independent unions, local chapters/chartered locals and
workers’ associations;
(d) Occupational safety and health violations; (e) Small money claims cases
arising from labor standards violations in an amount not exceeding ₱5,000.00 and
not accompanied with
a claim for reinstatement under Article 129; (f) Cases related to private
recruitment and placement agencies (PRPAs) for local employment, such as: (1)
Applications for license or
denial thereof; (2) Complaints for suspension or cancellation of license by
reason of administrative offenses; (3) Complaints for illegal recruitment; and (4)
Petition for closure of
agency; (g) Cases submitted for voluntary arbitration in their capacity as Ex-
Officio Voluntary Arbitrators (EVAs) under Department Order No. 83-07, Series of
2007; (h) Union
registration-related cases, such as: 1) Applications for union registration of
independent unions, local chapters and workers’ associations; 2) Petition for
denial of application for
registration of said unions; 3) Petitions for revocation or cancellation of
registration of said unions; (i) Notice of merger, consolidation, affiliation and
change of name of said unions
and or petition for denial thereof; (j) CBA-related cases, such as: 1)
Application for registration of single-enterprise CBAs or petition for
deregistration thereof; 2) Petition for denial
of registration of single-enterprise CBAs or denial of deregistration thereof;
and (k) Request for SEBA certification when made in an unorganized establishment
with only one (1)
legitimate union.
9 These are (1) inter-union disputes; (2) intra-union disputes; and (3) Other
related labor relations disputes.
10 “Article 289 [274]. Visitorial power. The Secretary of Labor and Employment or
his duly authorized representative is hereby empowered to inquire into the
financial activities of
legitimate labor organizations upon the filing of a complaint under oath and
duly supported by the written consent of at least twenty percent (20%) of the total
membership of the labor
organization concerned and to examine their books of accounts and other records
to determine compliance or non-compliance with the law and to prosecute any
violations of the law
and the union constitution and by-laws: Provided, That such inquiry or
examination shall not be conducted during the sixty (60)-day freedom period nor
within the thirty (30) days
immediately preceding the date of election of union officials.” (As amended by
Section 31, Republic Act No. 6715, March 21, 1989).
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1 See Article 243 [236] of the Labor Code which provides: “Art. 243 [236]. Denial
of registration; appeal. The decision of the Labor Relations Division in the
regional office denying
registration may be appealed by the applicant union to the Bureau within ten
(10) days from receipt of notice thereof.”
4 Section 3, Rule II of the Med-Arbitration Rules, supra; See also Section 4, Rule
XI, Book V of the Rules to Implement the Labor Code, as amended by Department Order
No. 40-F-03,
Series of 2008 [October 30, 2008].
5 As distinguished from cases involving multi-empoyer CBAs which fall under the
original jurisdiction of the BLR Director.
6 Section 4 [formerly Section 5], Rule XI, Book V, Rules to Implement the Labor
Code, as amended by Department Order No. 40-03, Series of 2003, [Feb. 17, 2003],
and as re-
numbered by Department Order No. 40-F-03, Series of 2008 [Oct. 30, 2008].
7 Section 4, Rue VII, Department Order No. 40-I-15, Series of 2015 [September 07,
2015]. Under this situation, the DOLE Regional Director, before whom the Request
for SEBA
Certification is filed, should refer the Request for SEBA Certification to the
Mediator-Arbiter for the determination of the propriety of conducting a
certification election, in which case,
the Mediator-Arbiter now has the jurisdiction to decide the certification
election issue. (Section 6, Rule VII, in relation to Rules VIII and IX, Department
Order No. 40-I-15, Series of
2015 [September 07, 2015]). Note must be made that when the Request for SEBA
Certification is made in an unorganized establishment with more than one (1)
legitimate labor
organization, the Med-Arbiter takes over from the DOLE Regional Director in the
matter of hearing and resolving the issue of certification election.
8 See Section 3, Rule XIII, Book V, Rules to Implement the Labor Code, as amended
by Department Order No. 40-03, Series of 2003, [Feb. 17, 2003], thus, a request for
examination
of books of accounts pursuant to Article 289 [274], in the absence of
allegations pertaining to a violation of Article 250 [241], should not be treated
as an intra-union dispute.
10 Citing La Tondena Workers Union v. Secretary of Labor, G.R. No. 96821, Dec. 9,
1994, 239 SCRA 117.
12 See 2nd paragraph, Section 1, Rule III, Rules to Implement the Labor Code, as
amended by Department Order No. 40-03, Series of 2003, [Feb. 17, 2003]; See also
Section 1, Rule II,
Rules of Procedure on Mediation-Arbitration.
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1 Under the previous repealed provision, it is stated that where the notice of
voluntary recognition is sufficient in form, number and substance and where there
is no other registered
labor union operating within the bargaining unit concerned, the DOLE Regional
Office, through the Labor Relations Division shall, within ten (10) days from
receipt of the notice, record
the fact of voluntary recognition in its roster of legitimate labor unions and
notify the labor union concerned. (See the repealed provision of Section 3, Rule
VII, Book V, Rules to
Implement the Labor Code, as amended by Department Order No. 40-03, Series of
2003, [Feb. 17, 2003]).
Where the notice of voluntary recognition is insufficient in form, number and
substance, the DOLE Regional Office shall, within the same period, notify the labor
union of its findings
and advise it to comply with the necessary requirements. Where neither the
employer nor the labor union failed to complete the requirements for voluntary
recognition within thirty (30)
days from receipt of the advisory, the DOLE Regional Office shall return the
notice of voluntary recognition together with all its accompanying documents
without prejudice to its re-
submission. (Section 3, Rule VII, Book V, Ibid.).
2 Section 1, Rule VII, Book V, Rules to Implement the Labor Code, as amended by
Department Order No. 40-03, Series of 2003, [Feb. 17, 2003].
3 Besides this mode, the other modes of selecting or designating a SEBA are
certification election, consent election, run-off election, and lately, re-run
election.
5 Section 4, Rule VII of the Rules to Implement the Labor Code, as amended by
Department Order No. 40-I-15, Series of 2015 [September 07, 2015]. The election
should be
conducted in accordance with Rule IX thereof.
6 Under the Rules, within 24 hours from the final canvass of votes, there being a
valid election, the Election Officer shall transmit the records of the case to the
Med-Arbiter who shall,
within the same period from receipt of the minutes and results of election,
issue an order proclaiming the results of the election and certifying the union
which obtained the majority of
the valid votes cast as the sole and exclusive bargaining agent in the subject
bargaining unit, xxx. (The provision entitled “Proclamation and certification of
the result of the election”
should now be denominated as Section 21, Rule IX, Book V, Rules to Implement the
Labor Code, by virtue of the re-numbering ordered by Section 17, Department Order
No. 40-I-15,
Series of 2015 [September 07, 2015]. This section was originally numbered
Section 20, per Department Order No. 40-03, Series of 2003, [Feb. 17, 2003], but it
was subsequently re-
numbered to Section 19, per Department Order No. 40-F-03, Series of 2008 [Oct.
30, 2008]. This latest 2015 re-numbering was effected through said Section 17 which
states:
“Sections subsequent to inserted new provisions and/or renumbered sections are
renumbered accordingly.”).
8 See Section 21, Rule IX, Book V, Rules to Implement the Labor Code, as ordered
renumbered by Section 17, Department Order No. 40-I-15, Series of 2015 [September
07, 2015].
This section was originally numbered Section 20, per Department Order No. 40-03,
Series of 2003, [Feb. 17, 2003], but it was subsequently re-numbered to Section 19,
per
Department Order No. 40-F-03, Series of 2008 [Oct. 30, 2008].
9 Section 5, Rule VII, Rules to Implement the Labor Code, as amended by Department
Order No. 40-I-15, Series of 2015 [September 07, 2015].
11 Section 6, Rule VII, in relation to Rules VIII and IX, Department Order No. 40-
I-15, Series of 2015 [September 07, 2015].
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term that includes not only the Med-Arbiters and DOLE Regional Directors but the
BLR Director himself. More
significantly, there is jurisprudential variance in the cases cognizable by the BLR
Director, in relation to Med-Arbiters and
DOLE Regional Directors, hence, referring to the cases properly falling under the
jurisdiction of the “BLR Director” as
such would be more appropriate and less confusing than simply referring to them as
falling under the jurisdiction of the
“BLR.”
The BLR Director exercises two (2) kinds of jurisdiction, namely:
original and appellate.1 The following cases
fall under the first:
(1) Complaints and petitions involving the application for registration,
revocation or cancellation of registration
of federations, national unions, industry unions, trade union
centers and their local chapters/chartered
locals, affiliates and member organizations;2
(2) Request for examination of books of accounts of said labor
organizations3 under Article 289 [274] of the
Labor Code;
(3) Intra-union disputes involving said labor organizations;4
(4) Notice of merger, consolidation, affiliation and change of name of
said unions and or petition for denial
thereof;5
(5) Registration of multi-employer6 CBAs or petitions for deregistration
thereof;7
(6) Contempt cases.
As far as No. 3 above is concerned, the 2010 case of Atty. Montaño v.
Atty. Verceles,8 is relevant. Petitioner9 here
claimed that under the Implementing Rules,10 it is the DOLE Regional Director and
not the BLR (Director) who has
jurisdiction over intra-union disputes involving federations which, in this case,
pertains to the election protests in
connection with the election of officers of the federation (Federation of Free
Workers [FFW]). In finding no merit in
petitioner’s contention, the High Court pointed out that Article 226 of the Labor
Code clearly provides that the BLR
(Director) and the Regional Directors of DOLE have concurrent jurisdiction over
inter-union and intra-union
disputes. Such disputes include the conduct or nullification of election of union
and workers’ association officers. There is,
thus, no doubt as to the BLR (Director)’s jurisdiction over the instant dispute
involving member-unions of a federation
arising from disagreement over the provisions of the federation’s constitution and
by-laws. It agreed with the following
observation of the BLR (Director):
“Rule XVI lays down the decentralized intra-union dispute
settlement mechanism. Section 1 states that any
complaint in this regard ‘shall be filed in the Regional Office where
the union is domiciled.’ The concept of domicile in
labor relations regulation is equivalent to the place where the union
seeks to operate or has established a geographical
presence for purposes of collective bargaining or for dealing with
employers concerning terms and conditions of
employment.
“The matter of venue becomes problematic when the intra-union
dispute involves a federation, because the
geographical presence of a federation may encompass more than one
administrative region. Pursuant to its
authority under Article 232 [226], this Bureau exercises original
jurisdiction over intra-union disputes involving
federations. It is well-settled that FFW, having local unions all
over the country, operates in more than one
administrative region. Therefore, this Bureau maintains original and
exclusive jurisdiction over disputes arising
from any violation of or disagreement over any provision of its
constitution and by-laws.”11
V.
APPELLATE JURISDICTION OF THE BLR DIRECTOR
AS DISTINGUISHED FROM THAT OF THE DOLE
SECRETARY
1. NECESSITY FOR JURISDICTIONAL DISTINCTIONS.
4 Id.
5 Section 5, Rule IV, Book V, Rules to Implement the Labor Code, as amended by
Department Order No. 40-03, Series of 2003, [Feb. 17, 2003] and as further amended
by
Department Order No. 40-D-05, Series of 2005, Sept. 13, 2005.
6 As distinguished from cases involving single-enterprise CBAs which fall under the
jurisdiction of the DOLE Regional Director.
7 Section 4, Rule XI, Book V of the Rules to Implement the Labor Code, as amended
by Department Order No. 40-F-03, Series of 2008 [October 30, 2008].
9 Petitioner was elected the National Vice President of FFW in the National
Convention held at Subic International Hotel, Olongapo City over the strong
opposition and protest of
respondent Atty. Ernesto C. Verceles, a delegate to the convention and president
of University of the East Employees Association (UEEA-FFW) which is an affiliate
union of FFW.
10 See Section 6 of Rule XV, in relation to Section 1 of Rule XIV of Book V of the
Rules to Implement the Labor Code.
11 Emphasis supplied.
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2 This is by virtue of Article 272 [259] of the Labor Code. This article is
entitled “Appeal from Certification Election Orders” and it provides as follows:
“Article 259. Appeal from
Certification Election Orders. – Any party to an election may appeal the order
or results of the election as determined by the Med-Arbiter directly to the
Secretary of Labor and
Employment on the ground that the rules and regulations or parts thereof
established by the Secretary of Labor and Employment for the conduct of the
election have been violated.
Such appeal shall be decided within fifteen (15) calendar days.” Prior to the
amendment of Article 272 [259] by R.A. No. 6715, the decisions of the Med-Arbiter
in certification election
cases are appealable to the BLR. Now, they are appealable to the DOLE Secretary.
(A’ Prime Security Services, Inc. v. Hon. Secretary of Labor, G.R. No. 91987, July
17, 1995). It
must be emphasized that as far as intra-union disputes are concerned, the
decisions of the Med-Arbiters thereon remain appealable to the BLR. (See Section 1
[1], Rule III, NCMB
Manual of Procedures for Conciliation and Preventive Mediation Cases).
3 In case the Request is made in an unorganized establishment with only one (1)
legitimate union, and the requesting union or local fails to complete the
requirements for SEBA
certification during the validation conference before the DOLE Regional
Director, in which event, such Request should be referred to the Election Officer
for the conduct of certification
election (Section 4, Rule VII of the Rules to Implement the Labor Code, as
amended by Department Order No. 40-I-15, Series of 2015 [September 07, 2015]. The
election should be
conducted in accordance with Rule IX thereof.), which necessarily would mean
that such certification election should now be conducted under the jurisdiction of
the Mediator-Arbiter
to whom the Election Officer is duty-bound to report the outcome of the election
proceeding. Certainly, the ensuing certification election cannot be conducted under
the directive of the
DOLE Regional Director without the participation of the Mediator-Arbiter who,
under the law, is the one possessed of the original and exclusive jurisdiction over
certification election
cases, including the proclamation of the winning SEBA. (See Section 21, Rule IX,
Book V, Rules to Implement the Labor Code, as ordered renumbered by Section 17,
Department
Order No. 40-I-15, Series of 2015 [September 07, 2015]. This section was
originally numbered Section 20, per Department Order No. 40-03, Series of 2003,
[Feb. 17, 2003], but it
was subsequently re-numbered to Section 19, per Department Order No. 40-F-03,
Series of 2008 [Oct. 30, 2008]).
4 Section 5, Rule VII, in relation to Rules VIII and IX, Department Order No. 40-I-
15, Series of 2015 [September 07, 2015].
5 Section 1 [1], Rule III, NCMB Manual of Procedures for Conciliation and
Preventive Mediation Cases.
7 Supra.
8 Section 18 [formerly Section 17], Rule VIII, Book V, of the Rules to Implement
the Labor Code, as amended by Department Order No. 40-F-03, Series of 2008 [October
30, 2008].
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“RULE II
MED-
ARBITRATION
“SEC. 3. Jurisdiction of the Regional Director. - The
Regional Director shall exercise original and exclusive
jurisdiction over application for union registration, petitions for
cancellation of union registration and complaints for
examination of union books of accounts.
SEC. 4. Jurisdiction of the Bureau.-
xxx
“(b) The Bureau shall exercise appellate jurisdiction over
all cases originating from the Regional Director
involving union registration or cancellation of certificates of union
registration and complaints for examination of
union books of accounts.”9
The language of the law is categorical. Any additional explanation on the
matter is superfluous. It is thus clear
then that the DOLE Secretary has no appellate jurisdiction over decisions of DOLE
Regional Directors involving petitions
for examinations of union accounts.10
b. Cases not appealable to the BLR Director but to some other labor
officials.
For greater clarity in presentation and to avoid any confusion, it is
worthy to mention that the decisions of the
DOLE Regional Directors in the following cases which are not related to labor
relations are appealable to the DOLE
Secretary and not to the BLR Director:
1 Id.
2 The BLR Director, not the DOLE Secretary, has the appellate authority over
decisions of the DOLE Regional Directors involving examinations of union accounts
as provided under
Rule II of the Rules of Procedure on Mediation-Arbitration, issued on April 10,
1992, to wit: “SEC. 3. Jurisdiction of the Regional Director. - The Regional
Director shall exercise
original and exclusive jurisdiction over application for union registration,
petitions for cancellation of union registration and complaints for examination of
unions books of accounts.
SEC. 4. Jurisdiction of the Bureau.- xxx “(b) The Bureau shall exercise
appellate jurisdiction over all cases originating from the Regional Director
involving union registration or
cancellation of certificates of union registration and complaints for
examination of union books of accounts.”
3 See Article 243 [236] of the Labor Code which provides: “Art. 243 [236]. Denial
of registration; appeal. The decision of the Labor Relations Division in the
regional office denying
registration may be appealed by the applicant union to the Bureau within ten
(10) days from receipt of notice thereof.”
4 See Article 245 [238] of the Labor Code which provides: “Art. 245 [238].
Cancellation of registration; appeal. The certificate of registration of any
legitimate labor organization, whether
national or local, shall be cancelled by the Bureau if it has reason to believe,
after due hearing, that the said labor organization no longer meets one or more of
the requirements
herein prescribed.”
5 Section 5, Rule IV, Book V, Rules to Implement the Labor Code, as amended by
Department Order No. 40-03, Series of 2003, [Feb. 17, 2003] and as further amended
by
Department Order No. 40-D-05, Series of 2005, Sept. 13, 2005.
6 As distinguished from cases involving multi-employer CBAs which fall under the
original jurisdiction of the BLR Director.
7 Section 4 [formerly Section 5], Rule XI, Book V, Rules to Implement the Labor
Code, as amended by Department Order No. 40-03, Series of 2003, [Feb. 17, 2003],
and as re-
numbered by Department Order No. 40-F-03, Series of 2008 [Oct. 30, 2008].
8 Issued on April 10, 1992.
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1 “Article 37. Visitorial Power. - The Secretary of Labor or his duly authorized
representatives may, at any time, inspect the premises, books of accounts and
records of any person or
entity covered by this Title, require it to submit reports regularly on
prescribed forms, and act on violation of any provisions of this Title.” (Referring
to Tile I [Recruitment and Placement
of Workers], Book I, Labor Code).
3 Based on the 2nd paragraph of Article 128(b), Labor Code, which states: “An order
issued by the duly authorized representative of the Secretary of Labor and
Employment under this
Article may be appealed to the latter. xxx” (As amended by Republic Act No.
7730, June 2, 1994). Additionally, it is provided in Section 1, Rule IV, of the
Rules on the Disposition of
Labor Standards Cases in the Regional Offices, thus: “Section 1. Appeal. – The
order of the Regional Director shall be final and executory unless appealed to the
Secretary of Labor
and Employment within ten (10) calendar daysfrom receipt thereof.” The grounds
for the appeal are provided in Section 2 thereof, thus: “Grounds for appeal. – The
aggrieved party
may appeal to the Secretary the Order of the Regional Director on any of the
following grounds: (a) there is a prima facie evidence of abuse of discretion on
the part of the Regional
Director; (b) the Order was secured through fraud, coercion or graft and
corruption; (c) the appeal is made purely on questions of law; and (d) serious
errors in the findings of facts
were committed which, if not corrected, would cause grave irreparable damageor
injury to the appellant.” (See also Section 2, in relation to Section 3(a), Rule X,
Book III of the Rules
to Implement the Labor Code}.
4 Section 6(a) of Rule VI [Health and Safety Cases] of the Rules on the Disposition
of Labor Standards Cases in the Regional Offices which provides: Section 6. Review
by the
Secretary. - (a) The Secretary at his own initiative or upon the request of the
employer and/or employee, may review the order of the Regional Director which shall
be immediately
final and executory unless stayed by the Secretary upon posting by the employer
of a reasonable cash or performance bond as fixed by the Regional Director.” See
also the 2nd
paragraph of Article 128(b), Labor Code.
5 Section 62, Department Order No. 141-14, Series of 2014, Nov. 20, 2014.
6 Section 23, Rule XI, Book V, Rules to Implement the Labor Code, as amended by
Department Order No. 40-03, Series of 2003, [Feb. 17, 2003]; National Federation of
Labor [NFL] v.
Laguesma, G.R. No. 123426, March 10, 1999.
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F.
NATIONAL CONCILIATION AND MEDIATION BOARD
(NCMB)
1.
NATURE OF PROCEEDINGS
1. NCMB IS NOT A QUASI-JUDICIAL AGENCY.
NCMB is not a quasi-judicial agency, according to the 2009 case of Tabigue
v. International
Copra Export Corporation. 2
“Quasi-judicial function” is a term which applies to the action,
discretion, etc. of public administrative
officers or bodies, who are required to investigate facts or ascertain the
existence of facts, hold hearings, and draw
conclusions from them as a basis for their official action and to exercise
discretion of a judicial nature.
2. NOT BEING A QUASI-JUDICIAL AGENCY, NCMB’S RULINGS CANNOT BE ELEVATED TO, AND
COGNIZABLE BY, THE COURT OF APPEALS.
Rule 43 of the Rules of Court applies only to awards, judgments, final
orders or resolutions of or authorized
by any quasi-judicial agency in the exercise of its quasi-judicial functions.
Hence, NCMB’s decision, not having
been rendered by a quasi-judicial body, cannot be elevated to the Court of Appeals
under said rule.
2.
CONCILIATION VS. MEDIATION
1. CONCILIATION AND MEDIATION, MEANING.
Both the terms “conciliation” and “mediation” refer to a process whereby
a third person usually called
Conciliator (in case of conciliation) or Mediator (in case of mediation),
intervenes in a dispute involving two or
more conflicting parties for the purpose of reconciling their differences or
persuading them into adjusting or settling
their dispute. The Conciliator or Mediator normally does not make or render any
decision, his role being confined to
the functions afore-described.
3. DISTINCTION BETWEEN CONCILIATION AND MEDIATION.
Generally, there are no marked distinctions between conciliation and
mediation. The reason is that in both
cases, a neutral third party (called Conciliator or Mediator) is tasked to assist
two or more opposing parties in
finding appropriate resolution to a dispute.
In the NCMB, the hearing officer is called Conciliator-Mediator. There is
no separate classification
between conciliators and mediators. When the Conciliator-Mediator performs his
task, he does not make any
distinction when he is acting as Conciliator or as Mediator.
In other jurisdictions, the principal distinction between conciliation and
mediation lies on the extent
of the power and authority granted to the neutral third party.
In mediation, the Mediator normally facilitates a deliberation or
discussion of the issues between the
parties. He may or may not offer any opinions on the strength and weaknesses of
each party's positions and
arguments. Thus, mediation may be classified into two, namely:
1. Facilitative Mediation where the Mediator does not make or offer
any opinion; or
2. Evaluative Mediation where the Mediator offers an opinion which is
not binding on the parties.
It bears stressing, however, that regardless of which of the 2 methods above
is chosen, the Mediator is not
empowered to impose his will on the parties.
In conciliation, the Conciliator is given more power and authority in
that he may not only offer an opinion
on the issues at hand but may actually make a binding opinion thereon provided the
parties stipulate in advance to
this effect. His opinion is based on the facts and the law involved in the
controversy before him.
It may thus be observed that conciliation is more formal than mediation in
the sense that the Conciliator’s
opinion, unlike the Mediator’s, may be binding on the parties, although it may be
merely temporary in character.
3.
PREVENTIVE MEDIATION
1. PREVENTIVE MEDIATION AS A REMEDY.
1 Cebu Seamen’s Association, Inc. v. Hon. Pura Ferrer-Calleja, G.R. No. 83190. Aug.
4, 1992; See also Philippine Land-Sea-Air Labor Union [PLASLU] v. CIR, G.R. Nos. L-
5664 &
L-5698, Sept. 17, 1953, 93 Phil. 747.
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G.
DOLE REGIONAL
DIRECTORS
1.
JURISDICTION
1. ROLE OF THE DOLE REGIONAL DIRECTORS.
The DOLE has a total of 16 Regional Offices nationwide each one of them is
headed by a Regional Director. The
DOLE Regional Directors are the duly “authorized representatives” of the DOLE
Secretary referred to in Article 128 of
the Labor Code which grants to them both visitorial and enforcement powers. They
are in charge of the administration
and enforcement of labor standards within their respective territorial
jurisdictions.3
2. JURISDICTION OF THE DOLE REGIONAL DIRECTORS.
The DOLE Regional Directors have original and exclusive jurisdiction
over the following cases:
(a) Visitorial (inspection) cases under Article 37;4
3 See Section 3, Rule I, Rules on the Disposition of Labor Standards Cases in the
Regional Offices [Sept. 16, 1987]; Atilano v. De la Cruz, G.R. No. 82488, Feb. 28,
1990, 182 SCRA
886; San Miguel Corporation v. The Hon. CA, G.R. No. 146775, Jan. 30, 2002.
4 “Article 37. Visitorial Power. - The Secretary of Labor or his duly authorized
representatives may, at any time, inspect the premises, books of accounts and
records of any person or
entity covered by this Title, require it to submit reports regularly on
prescribed forms, and act on violation of any provisions of this Title.” (Referring
to Tile I [Recruitment and Placement
of Workers], Book I, Labor Code).
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4 Section 6 of Rule VI [Health and Safety Cases] of the Rules on the Disposition of
Labor Standards Cases in the Regional Offices.
6 Section 8, Department Order No. 141-14, Series of 2014 (Revised Rules and
Regulations Governing Recruitment and Placement for Local Employment), Nov. 20,
2014; See
previous provision on this matter in Section 36, Rule VII, Rules And Regulations
Governing Private Recruitment and Placement Agency for Local Employment, June 5,
1997. See
also National Federation of Labor v. Laguesma, G.R. No. 123426, March 10, 1999.
7 Section 54, in relation to Section 51, Department Order No. 141-14, Series of
2014, Ibid.
10 Issued by former DOLE Secretary, now Associate Justice of the Supreme Court,
Arturo D. Brion on June 8, 2007.
12 See Article 243 [236] of the Labor Code which provides: “Art. 243 [236]. Denial
of registration; appeal. The decision of the Labor Relations Division in the
regional office denying
registration may be appealed by the applicant union to the Bureau within ten
(10) days from receipt of notice thereof.”
14 See Article 245 [238] of the Labor Code which provides: “Art. 245 [238].
Cancellation of registration; appeal. The certificate of registration of any
legitimate labor organization, whether
national or local, shall be cancelled by the Bureau if it has reason to believe,
after due hearing, that the said labor organization no longer meets one or more of
the requirements
herein prescribed.”
15 Section 3, Rule II of the Med-Arbitration Rules, supra; See also Section 4, Rule
XI, Book V of the Rules to Implement the Labor Code, as amended by Department Order
No. 40-
F-03, Series of 2008 [October 30, 2008].
16 Section 5, Rule IV, Book V, Rules to Implement the Labor Code, as amended by
Department Order No. 40-03, Series of 2003, [Feb. 17, 2003] and as further amended
by
Department Order No. 40-D-05, Series of 2005, Sept. 13, 2005.
17 As distinguished from cases involving multi-empoyer CBAs which fall under the
original jurisdiction of the BLR Director.
18 Section 4 [formerly Section 5], Rule XI, Book V, Rules to Implement the Labor
Code, as amended by Department Order No. 40-03, Series of 2003, [Feb. 17, 2003],
and as re-
numbered by Department Order No. 40-F-03, Series of 2008 [Oct. 30, 2008].
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II.
SMALL MONEY CLAIMS
CASES
1. JURISDICTION OVER CLAIMS NOT EXCEEDING P5,000.
1 Under this situation, the DOLE Regional Director, before whom the Request for
SEBA Certification is filed, should refer the Request for SEBA Certification to the
Mediator-Arbiter for
the determination of the propriety of conducting a certification election, in
which case, the Mediator-Arbiter now has the jurisdiction to decide the
certification election issue. (Section 6,
Rule VII, in relation to Rules VIII and IX, Department Order No. 40-I-15, Series
of 2015 [September 07, 2015]). Note must be made that when the Request for SEBA
Certification is
made in an unorganized establishment with more than one (1) legitimate labor
organization, the Med-Arbiter takes over from the DOLE Regional Director in the
matter of hearing and
resolving the issue of certification election.
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The DOLE Regional Director has original jurisdiction over small money
claims cases arising from labor
standards violations in the amount not exceeding P5,000.00 and not accompanied with
a claim for reinstatement
under Article 129 of the Labor Code.
Article 129 contemplates the recovery of wages and other monetary claims
and benefits, including legal
interest, owing to an employee or domestic worker or kasambahay, arising from
employer-employee relations
provided the claim does not exceed P5,000.00.
2. REQUISITES FOR THE VALID EXERCISE OF JURISDICTION BY DOLE REGIONAL DIRECTORS
UNDER ARTICLE 129.
The following requisites must all concur, to wit:
(1) The claim is presented by an employee or domestic worker or
kasambahay;
(2) The claimant, no longer being employed, does not seek reinstatement;
and
(3) The aggregate money claim of the employee or domestic worker or
kasambahay does not exceed
P5,000.00.
In the absence of any of the aforesaid three (3) requisites, the Labor
Arbiters have original and exclusive
jurisdiction over all claims arising from employer-employee relations, other than
claims for employees’
compensation, social security, PhilHealth and maternity benefits.
III.
CASES SUBMITTED TO REGIONAL DIRECTORS AND ASSISTANT REGIONAL
DIRECTORS FOR VOLUNTARY ARBITRATION IN THEIR CAPACITY AS EX-OFFICIO
VOLUNTARY ARBITRATORS (EVAs)
1. JURISDICTION.
As EVAs, the DOLE Regional Directors and their Assistants have
jurisdiction over the following cases:
(a) All grievances arising from the interpretation or implementation
of the CBA;
(b) All grievances arising from the interpretation or enforcement of
company personnel policies which
remain unresolved after exhaustion of the grievance procedure;
(c) Cases referred to them by the DOLE Secretary under the DOLE’s
Administrative Intervention for
Dispute Avoidance (AIDA) initiative (provided under DOLE Circular
No. 1, Series of 2006); and
(d) Upon agreement of the parties, any other labor dispute may be
submitted to the EVAs for voluntary
arbitration.
H.
DOLE
SECRETARY
1. POWERS OF THE DOLE SECRETARY.
The DOLE Secretary, being the head of the Department of Labor and
Employment, is possessed of a
number of powers, some of which are mentioned in the syllabus, to wit:
1. Visitorial and enforcement powers;
2. Power to suspend the effects of termination;
3. Assumption of jurisdiction;
4. Appellate jurisdiction; and
5. Voluntary arbitration powers.
2. CASES FALLING UNDER THE DOLE SECRETARY’S ORIGINAL JURISDICTION.
The DOLE Secretary has original jurisdiction over the following
cases:
(1) Petition to assume jurisdiction over labor disputes affecting
industries indispensable to the national interest
(national interest cases);1
(2) Petition to certify national interest cases to the NLRC for
compulsory arbitration;2
(3) Petition to suspend effects of termination;3
(4) Administrative Intervention for Dispute Avoidance (AIDA) cases;4
(5) Voluntary arbitration cases;5 and
(6) Contempt cases.6
1.
2 Id.
4 This is a new form of dispute settlement introduced by the DOLE Secretary under
DOLE Circular No. 1, Series of 2006, issued on August 11, 2006 by former DOLE
Secretary Arturo
D. Brion, later a distinguished member of the Highest Court. This was issuedin
line with the objectives of R.A. No. 9285, otherwise known as the “Alternative
Dispute Resolution Act of
2004” [approved on April 2, 2004], Executive Order No. 523 dated April 07, 2006
and the mandate of the DOLE to promote industrial peace.
6 As provided under Article 231 [225] which states: Article 231 [225]. Contempt
powers of the Secretary of Labor. In the exercise of his powers under this Code,
the Secretary of Labor
may hold any person in direct or indirect contempt and impose the appropriate
penalties therefor.
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The appellate power in No. 3 above may only be exercised by the DOLE
Secretary in respect to any
decision, order or award issued by the DOLE Regional Directors.
3. NATURE OF THE VISITORIAL AND ENFORCEMENT POWERS.
The visitorial and enforcement powers granted to the DOLE Secretary and the
DOLE Regional Directors
who are his duly authorized representatives, are quasi-judicial in nature.
4. IT IS THE REGIONAL DIRECTORS WHO HAVE ORIGINAL JURISDICTION TO EXERCISE THE
VISITORIAL AND ENFORCEMENT POWERS UNDER ARTICLES 37, 128 AND 274.
In the instances contemplated under Articles 37, 128 and 274, it is the
DOLE Regional Directors, the
DOLE Secretary’s duly authorized representatives commonly referred to in these
three (3) articles, who have the
original jurisdiction to exercise the visitorial power granted therein.
5. THE ROLE OF THE DOLE SECRETARY IN THE EXERCISE OF VISITORIAL AND ENFORCEMENT
POWERS IS APPELLATE IN NATURE.
It is clear from the above disquisition that the original jurisdiction
over the exercise of the visitorial and
enforcement powers belongs to the DOLE Regional Directors, as the duly authorized
representatives of the DOLE
Secretary.
The role of the DOLE Secretary is confined to the exercise of his
appellate jurisdiction over the decisions,
orders and awards of the DOLE Regional Directors in cases brought before them for
adjudication under Articles 128
and 274.
2.
POWER TO SUSPEND EFFECTS OF TERMINATION
1. GROUNDS.
The DOLE Secretary may suspend the effects of termination pending
resolution of the dispute in the event
of a prima facie finding by the appropriate official of the DOLE before whom the
dispute is pending that:
1. the termination may cause a serious labor dispute; and/or
2. the termination is in implementation of a mass lay-off.
2. RATIONALE FOR SUSPENDING THE EFFECTS OF TERMINATION.
The obvious purpose behind this rule is to bring the parties back to the
status quo ante litem, that is, their
state of relationship prior to the termination. In this way, the workers will be
litigating the issue of the validity or
legality of their termination on more or less equal footing with the employer since
they will be immediately
reinstated and accordingly not be deprived of their wages while the litigation is
on-going.
3. REINSTATEMENT PENDING RESOLUTION OF THE TERMINATION DISPUTE.
Suspension of the effects of termination will necessarily result in the
immediate reinstatement of the
terminated employees. An order of reinstatement pending resolution of the case may
thus be issued by the DOLE
Secretary pursuant to this power.
4. DISTINGUISHED FROM DOLE SECRETARY’S POWER OF ASSUMPTION OR CERTIFICATION IN
NATIONAL INTEREST CASES.
a. Different power of the DOLE Secretary.
This power of the DOLE Secretary granted under Article 277(b) should be
distinguished from his power to
assume or certify labor disputes involving industries indispensable to the national
interest under Article 263(g). The
following distinctions may be cited:
First, the exercise of the power to suspend the effects of termination
involves only the issue of termination
of employment which may cause a serious labor dispute or is in implementation of a
mass lay-off; while the power
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The DOLE Secretary is granted under Article 263(g) of the Labor Code, the
extraordinary police power of
assuming jurisdiction over a labor dispute which, in his opinion, will cause or
likely to cause a strike or lockout in an
industry indispensable to the national interest, or the so-called “national
interest” cases. Alternatively, he may
certify the labor dispute to the NLRC for compulsory arbitration.
4.
APPELLATE JURISDICTION
I.
VARIOUS APPEALS TO THE DOLE SECRETARY
UNDER THE LABOR CODE AND APPLICABLE RULES
1. OFFICES FROM WHICH APPEALS MAY ORIGINATE.
Appeals to the DOLE Secretary may originate from any of the following
offices:
(1) DOLE Regional Directors;
(2) Med-Arbiters;
(3) Director of the Bureau of Labor Relations (BLR); and
(4) Philippine Overseas Employment Administration (POEA).
2. CASES NOT APPEALABLE TO THE DOLE SECRETARY.
The following decisions, awards or orders are not appealable to the Office
of the DOLE Secretary:
(1) Those rendered by Labor Arbiters that are appealable to the Commission
(NLRC) which has exclusive
appellate jurisdiction thereover;
(2) Those rendered by the Commission (NLRC) since they can be elevated
directly to the CA by way of a
Rule 65 certiorari petition;
(3) Those rendered by the BLR Director in the exercise of his appellate
jurisdiction since they can be
brought directly to the CA under Rule 65 certiorari petition;
(4) Those rendered by DOLE Regional Directors under Article 129 of the
Labor Code since they are
appealable to the NLRC;
(5) Those issued by DOLE Regional Directors in their capacity as Ex-
Officio Voluntary Arbitrators (EVAs)
since they can be brought directly to the CA under Rule 43 of the
Rules of Court; and
(6) Those rendered by Voluntary Arbitrators which are appealable directly
to the CA under Rule 43 of the
Rules of Court.
II.
APPEALS FROM DOLE REGIONAL DIRECTORS
1. CASES APPEALABLE TO DOLE SECRETARY.
Not all decisions, awards or orders rendered by the DOLE Regional
Directors are appealable to the DOLE
Secretary. Only those issued in the following cases are so appealable:
(a) Labor standards enforcement cases under Article 128;
(b) Occupational safety and health violations; and
(c) Complaints against private recruitment and placement agencies (PRPAs)
for local employment.
2. CASES NOT APPEALABLE TO THE DOLE SECRETARY.
As earlier pointed out, the following cases decided by the DOLE Regional
Directors are not appealable to
the DOLE Secretary but to some other agencies/tribunals indicated below:
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(a) Decisions in small money claims cases arising from labor standards
violations in the amount not
exceeding P5,000.00 and not accompanied with a claim for reinstatement
under Article 129 are
appealable to the NLRC;
(b) Decisions in cases submitted to DOLE Regional Directors for voluntary
arbitration in their capacity as
Ex-Officio Voluntary Arbitrators (EVAs) under Department Order No. 83-
07, Series of 2007 may be
elevated directly to the Court of Appeals by way of a Rule 43
petition. This is so because the DOLE
Regional Directors, in so deciding, are acting as Voluntary
Arbitrators; hence, what should apply are
the rules on appeal applicable to voluntary arbitration.
III.
APPEALS FROM DECISIONS OF
MEDIATORS-ARBITERS (MED-ARBITERS) AND BLR DIRECTOR
(NOTE: See discussion above in connection with
the jurisdiction of the Bureau of Labor Relations
[BLR])
V.
APPEALS FROM DECISIONS OF POEA
1. CASES APPEALABLE TO THE DOLE SECRETARY.
The decisions in the following cases rendered by the Philippine Overseas
Employment Administration
(POEA) in its original jurisdiction are appealable to the DOLE Secretary:
(a) Recruitment violations and other related cases. - All cases which are
administrative in character,
involving or arising out of violation of rules and regulations
relating to licensing and registration of
recruitment and employment agencies or entities, including refund of
fees collected from workers and
violation of the conditions for the issuance of license to recruit
workers.
(b) Disciplinary action cases and other special cases which are
administrative in character, involving
employers, principals, contracting partners and Filipino migrant
workers.
It must be noted that the POEA ceased to have any jurisdiction over money
claims of OFWs, or those
arising out of an employer-employee relationship or by virtue of any law or
contract involving Filipino workers for
overseas deployment including claims for actual, moral, exemplary and other forms
of damages. The jurisdiction
over these claims was transferred to the Labor Arbiters of the NLRC by virtue of
Section 10 of R.A. No. 8042, as
amended. Hence, appeals therefrom may be instituted to the Commission (NLRC).
5.
DOLE SECRETARY’S VOLUNTARY ARBITRATION POWERS
1. AIDA.
a. New rule on voluntary settlement of cases by the DOLE Secretary.
A new form of dispute settlement by the DOLE Secretary was introduced by
DOLE Circular No. 1, Series
of 2006. Called Administrative Intervention for Dispute Avoidance (AIDA), this is a
new administrative
procedure for the voluntary settlement of labor disputes in line with the
objectives of R.A. No. 9285, Executive
Order No. 523 and the mandate of the DOLE to promote industrial peace.
b. Nature of administrative intervention by DOLE Secretary.
This recourse is separate from the established dispute resolution modes
of mediation, conciliation and
arbitration under the Labor Code, and is an alternative to other voluntary modes of
dispute resolution such as the
voluntary submission of a dispute to the Regional Director for mediation, to the
NCMB for preventive mediation, or
to the intervention of a regional or local tripartite peace council for the same
purpose.
c. Parties who may request for DOLE Secretary’s intervention.
Either or both the employer and the certified collective bargaining agent
(or the representative of the
employees where there is no certified bargaining agent) may voluntarily bring to
the Office of the DOLE Secretary,
through a Request for Intervention, any potential or ongoing dispute defined below.
d. Potential or on-going dispute.
A potential or on-going dispute refers to:
(a) a live and active dispute;
(b) that may lead to a strike or lockout or to massive labor unrest; and
(c) is not the subject of any complaint or notice of strike or lockout at
the time a Request for Intervention
is made.
2. VOLUNTARY ARBITRATION BY DOLE SECRETARY.
If the intervention through AIDA fails, either or both parties may avail
themselves of the remedies provided
under the Labor Code. Alternatively, the parties may submit their dispute to the
Office of the DOLE Secretary for
voluntary arbitration. Such voluntary arbitration should be limited to the issues
defined in the parties' submission to
voluntary arbitration agreement and should be decided on the basis of the parties'
position papers and submitted
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evidence. The Office of the DOLE Secretary is mandated to resolve the dispute
within sixty (60) days from the
parties' submission of the dispute for resolution.
3. DOES THE DOLE SECRETARY ASSUME THE ROLE OF VOLUNTARY ARBITRATOR ONCE HE
ASSUMES JURISDICTION OVER A LABOR DISPUTE?
In the 2014 case of Philtranco Service Enterprises, Inc. v. Philtranco
Workers Union-Association of
Genuine Labor Organizations (PWU-AGLO),1 this poser was answered in the negative. A
notice of strike was
filed by respondent union which, after failure of conciliation and mediation by the
NCMB, was referred by the
Conciliator-Mediator to the Office of the DOLE Secretary who thereby assumed
jurisdiction over the labor dispute.
The case was resolved by the Acting DOLE Secretary in favor of respondent union. A
motion for reconsideration
was filed by petitioner company. The DOLE Secretary, however, declined to rule on
the motion citing a DOLE
regulation, applicable to voluntary arbitration, which provided that the Voluntary
Arbitrators’ decisions, orders,
resolutions or awards shall not be the subject of motions for reconsideration. The
DOLE Secretary took the position
that when he assumed jurisdiction over the labor dispute, he was acting as a
Voluntary Arbitrator. Petitioner
subsequently filed a Rule 65 certiorari petition with the CA. The CA, however,
dismissed petitioner company’s Rule
65 certiorari petition on the ground, among others, that the decision of the DOLE
Secretary, having been rendered
by him in his capacity as Voluntary Arbitrator, is not subject to a Rule 65
certiorari petition but to a Rule 43 petition
for review which properly covers decisions of Voluntary Arbitrators.
Before the Supreme Court, petitioner asserted that, contrary to the CA’s
ruling, the case is not a simple
voluntary arbitration case. The character of the case, which involves an impending
strike by petitioner’s employees;
the nature of petitioner’s business as a public transportation company, which is
imbued with public interest; the
merits of its case; and the assumption of jurisdiction by the DOLE Secretary – all
these circumstances removed the
case from the coverage of Article 262, and instead placed it under Article 263, of
the Labor Code. For its part,
respondent union argued that the DOLE Secretary decided the assumed case in his
capacity as Voluntary Arbitrator;
thus, his decision, being that of a Voluntary Arbitrator, is only assailable via a
petition for review under Rule 43.
The Supreme Court, however, pronounced that:
“It cannot be said that in taking cognizance of NCMB-NCR CASE No.
NS-02-028-07, the Secretary of Labor
did so in a limited capacity, i.e., as a voluntary arbitrator. The
fact is undeniable that by referring the case to the
Secretary of Labor, Conciliator-Mediator Aglibut conceded that the
case fell within the coverage of Article 263 of
the Labor Code; the impending strike in Philtranco, a public
transportation company whose business is imbued
with public interest, required that the Secretary of Labor assume
jurisdiction over the case, which he in fact did.
By assuming jurisdiction over the case, the provisions of Article 263
became applicable, any representation to the
contrary or that he is deciding the case in his capacity as a
voluntary arbitrator notwithstanding.”
Consequently, the Supreme Court reversed and set aside the CA ruling and
reinstated the case and directed
the CA “to resolve the same with deliberate dispatch.”
I.
GRIEVANCE MACHINERY
AND VOLUNTARY ARBITRATION
(NOTE must be made that the 2017 Syllabus merely requires a discussion of the
jurisdiction of the
Voluntary Arbitrator and the remedies available before him. However, in the view
of the author,
there can be no meaningful discussion of these subject matters without touching
the subject of
“Grievance Machinery” since the main bulk of cases cognizable by Voluntary
Arbitrators emanate
from and consist of unresolved grievances that were initially processed and
adjudicated through the
Grievance Machinery. Hence, a discussion of Grievance Machinery is of extreme
necessity).
1.
SUBJECT MATTER OF GRIEVANCE
1. GRIEVANCE OR GRIEVABLE ISSUE.
A “grievance” or “grievable issue” is any question raised by either the
employer or the union regarding
any of the following issues or controversies:
1. The interpretation or application of the CBA;
2. The interpretation or enforcement of company personnel policies;
or
3. Violation of any provisions of the CBA or company personnel
policies.
2. VALIDITY AND BINDING EFFECT OF DECISIONS OF GRIEVANCE COMMITTEE.
A member of the bargaining union who brought his grievable issue for
resolution by the Grievance
Committee is bound by whatever disposition the latter may render thereon.
1 G.R. No. 180962, Feb. 26, 2014. Although this case involves a decision of the
DOLE Secretary, the principle enunciated herein equally applies to the NLRC.
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2.1.
JURISDICTION
1. ORIGINAL AND EXCLUSIVE JURISDICTION.
a. In general.
The Voluntary Arbitrator or panel of Voluntary Arbitrators shall have
exclusive and original jurisdiction
over the following cases:
(1) Unresolved grievances arising from the interpretation or
implementation of the collective bargaining
agreement (CBA).
(2) Unresolved grievances arising from the interpretation or enforcement
of company personnel policies.
(3) Violations of the CBA which are not gross in character.
(4) Other labor disputes, including unfair labor practices and bargaining
deadlocks, upon agreement of the
parties.
(5) National interest cases.
(6) Wage distortion issues arising from the application of any wage orders
in organized establishments.
(7) Unresolved grievances arising from the interpretation and
implementation of the Productivity Incentive
Programs under R.A. No. 6971.
2.1.1.
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2.1.2.
JURISDICTION OVER NATIONAL INTEREST CASES
Article 263(g) of the Labor Code which involves the DOLE Secretary’s
power of assumption of jurisdiction
or certification to the NLRC of labor disputes affecting industries indispensable
to the national interest, also
provides that “[b]efore or at any stage of the compulsory arbitration process, the
parties may opt to submit
their dispute to voluntary arbitration.”
This means that even if the case has already been assumed by the DOLE
Secretary or certified to the NLRC
for compulsory arbitration, or even during its pendency therewith, the parties
thereto may still withdraw the case
from the DOLE Secretary or NLRC, as the case may be, and submit it to a Voluntary
Arbitrator for voluntary
arbitration purposes.
2.1.3.
JURISDICTION OVER WAGE DISTORTION CASES
3.
REMEDIES
1. RELIEFS AND REMEDIES THAT MAY BE GRANTED BY VOLUNTARY ARBITRATORS.
Besides the procedural remedies discussed above, the Voluntary Arbitrator
or panel of Voluntary Arbitrators
may grant the same reliefs and remedies granted by Labor Arbiters under Article 279
of the Labor Code, such as:
(1) In illegal dismissal cases:
(a) Actual reinstatement;
(b) Separation pay in lieu of reinstatement, in case reinstatement
becomes impossible, non-feasible or
impractical;
(c) Full backwages;
(d) Moral and exemplary damages; and
(e) Attorney’s fees.
(2) Monetary awards in monetary claims cases in which case, the decision
should specify the amount
granted and the formula used in the computation thereof.
J.
PRESCRIPTION OF ACTIONS
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