Thursday, November 28, 2019

LABOR REVIEW NOTES

LABOR RELATIONS
- Labor relations laws are the laws, rules and regulations which govern the relationship between employees
and their employers, promote the right of the employees to self-organization and collective bargaining,
penalize unfair labor practice, and provide modes for the settlement of labor disputes such as conciliation,
mediation, grievance machinery, voluntary arbitration and compulsory arbitration
- LA and NLRC

LABOR ARBITER NATIONAL LABOR RELATIONS

COMMISSION

Composition Appointed by President 24 Commissioners (1CM & 23

Members)
1. 8 divisions with three members
each,
1st-5th Div: NCR and Luzon
6th: Visayas
8th: Mindanao
2. En Banc (administrative / only for
purposes of promulgating rules and
regulations governing the hearing
and disposition of cases before any
of its divisions and regional
branches and formulating policies
affecting its administration and
operations)

Appointment by the President, not subject to by the President, not subject to

confirmation by Commission on confirmation by Commission on
Appointments Appointments

Qualifications 1. Members of Ph Bar 1. Members of Ph Bar

2. Engaged in practice of law for at least
10 years
3. Labor-mgt relations for at least 5 years
exposure or experience
2. Engaged in practice of law for at
least 15 years
3. Labor-mgt relations for at least 5
years exposure or experience
4. Preferably, residents of the region
where they shall hold office

Term Hold office during good behavior until 65
yrs old (may be extended by President until
70 upon recommendation of Commission
En Banc) or sooner removed for a cause
Hold office during good behavior until 65
yrs old (may be extended by President
until 70 upon recommendation of
Commission En Banc) or sooner
removed for a cause

Salaries etc Same with RTC Judge Same with Presiding Justice and
Associate Justices of the CA

Qualification of 1. Members of Ph Bar

Commission 2. Engaged in practice of law for at
Attorneys least 1 year
(co-terminous) - SG26
- as many as necessary but max of 3
for each commissioner

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LABOR ARBITER NATIONAL LABOR RELATIONS

COMMISSION

Jurisdiction 1. Unfair labor practice cases; 1. Exclusive appellate jurisdiction over

2. Termination disputes; all cases decided by LA, and
3. If accompanied with a claim for 2. Cases decided by Regional Boards
reinstatement, those cases that or his duly authorized officers
workers may file involving wages, rates involving recovery of wages and
of pay, hours of work and other terms other benefits NOT exceeding
and conditions of employment; P5,000 and NOT accompanied by
4. Claims for actual, moral, exemplary and claim for reinstatement
other forms of damages arising from
the employer-employee relations;
5. Cases arising from any violation of
Article 264 of this Code, including
questions involving the legality of
strikes and lockouts;
6. Except claims for Employees
Compensation, Social Security,
Medicare and maternity benefits, all
other claims arising from employer-
employee relations, including those of
persons in domestic or household
service, involving an amount exceeding
five thousand pesos (P5,000.00)
regardless of whether accompanied
with a claim for reinstatement. (Except
those of the kasambahay, Section 37,
RA 10361)
7. All other claims arising from ER-EE
Rel, including those persons in
domestic or household involving an amt
exceeding P5,000 regardless whether
accompanied with a claim for
reinstatement;
8. Wage Distortion disputes in
unorganized establishments not
voluntarily settled by the parties;
9. Enforcement of compromise
agreements when there is non-
compliance by any of the parties
pursuant to Art 233; and
10. Cases arising from the interpretation or
implementation of collective bargaining
agreements and those arising from the
interpretation or enforcement of
company personnel policies (referred to
grievance machinery and VA).

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PRELIMINARY INJUNCTION TEMPORARY RESTRAINING ORDER

Issuance 1. Verified petition with CNFS 1. Allegation that a substantial and

2. Hearing after due and personal notice irreparable injury to petitioner’s
3. Testimonies of witness property will be unavoidable
4. Findings of fact 2. Issued upon testimony under oath
a. Unlawful act has been or will be 3. Filing of an undertaking to answer for
committed and will continue the damages
unless restrained 4. Posting a cash bond in the amount of
b. Substantial and irreparable injury P50,000 or higher as may be
to the complainant’s property will determined by the Commission
follow
c. Greater injury will be inflicted on
the complainant by the denial of
the relief than to the defendants
by granting the relief
d. Complainant has no adequate
remedy in law
e. Public officers charged with duty
to protect the complainant’s
property are unable or unwilling to
furnish adequate protection
5. Posting of a bond

Effectivity Until the resolution of the case Not more than 20 days from the posting
of the cash bond of P50,000 or higher

- GR: President, SOLE, NLRC, and Regional Boards may issue TRO/PI
EXC: LA may issue only as an incident to the cases pending before them but excluding labor disputes
involving strikes and lockouts.

- Claims of OFWs
• Labor Arbiter has original and exclusive jurisdiction over claims arising out of an employer-employee
relationship or by virtue of any law or contract involving Filipino workers for overseas employment
including money claims and actual, moral, exemplary and other forms of damages.
• Venue: Residence of complainant or principal office of respondent-employer
• Computation of Money Claims: 100% reimbursement of placement fees plus 12% interest per annum
plus the salaries for the unexpired portion of the contract.

- Appearances
A. Lawyer
B. Non-lawyer
1. Represents himself
2. Represents a legitimate labor org, presenting the ff:
a. Certification from BLR or Regional office attesting that the labor org is duly registered and
listed in the roster of legitimate labor org
b. Verified certification issued by secretary and attested by the president of the labor org that the
non-lawyer is authorized to represent the said org
c. Copy of the resolution of the BOD of said org granting him such authority
3. He is a duly accredited member of any legal aid office recognised by DOJ or IBP, provided he
presents the ff:
a. Proof of accreditation
b. represents a party to the case

- Attorney’s Fee: 10% of the amount awarded by the Court

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- Appeals

1. LA NLRC CA SC

• Period to decide cases:

GR: 30 Calendar days without extension after submission of the case by the parties for
decision, even in the absence of stenographic notes
EXC: Cases involving OFWs - 90 days after filing of the complaint which shall commence to
run upon the acquisition by the LA of JD over the respondents

• Period of Appeal
GR: 10 calendar days from receipt of decisions
EXC: 5 calendar days from receipt of decisions of the Regional Director of DOLE

• Grounds for Appeal

1. Prima facie evidence of abuse of discretion on the part of LA/RD
2. Decision was secured through fraud or coercion, including graft and corruption
3. Purely on questions of law
4. Serious errors in the findings of facts are raised which if not corrected would cause grave or
irreparable damage or injury to the appellant.

• Requisites for perfection of Appeal

1. Filed within reglementary period
2. Verified by the appellant himself
3. Memorandum of Appeal shall state;
a. grounds relied upon
b. arguments to support thereof
c. relief prayed for
d. statement of the date when the appellant received the appealed decision
4. 3 legibly typewritten copies
5. accompanied by
a. proof of payment of Appeal Fee
b. posting of a cash deposit or surety bond in case decision awarded monetary claims, in an amt to
the monetary award, exclusive of damages and atty’s fees
c. CNFS
d. proof of service

• Appeal Fee: P500.00 (2011)

• Decisions of NLRC are immediately executory

- wages until finality of judgment
- backwages
- reinstatement (immediately self-executory)
1. Actual reinstatement
2. Payroll reinstatement
(at the option of the employer)
EXC: Issuance of TRO/PI (not includes reinstatement)

• Effect of reversal of judgment awarding reinstatement

- No need for reimbursement. (Ratio: Social justice of labor renders inapplicable civil code doctrine
on unjust enrichment)

• MR from the decisions of NLRC is condition sine qua non to filing petition for certiorari to CA under
Rule 65, However, failure to do so is not a fatal omission.

2. BLR SOLE MR CA
(Filed in BLR if the union is operating within multiple regions)

3. Regional Office BLR MR CA(Rule 65)

(Filed in RO if the union is operating within one specific region)
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4. GM VA MR CA(Rule 43)

- Execution of Judgment
• When is judgment becomes final and executory?
- upon entry of judgment

• How to execute a judgment?

- 2 modes

MOTION FOR EXECUTION INDEPENDENT ACTION FOR EXECUTION

Filed within 5 years from the date the decision Filed within a period of 10 years from date of its
becomes final and executory (entry of judgment) finality (or additional 5 years from the expiration of
period to file motion for execution)

• Pre-Execution Conference
- Within 2 working days from receipt of a motion for the issuance of a writ of execution, the LA shall
schedule a pre-execution hearing to thresh out matters relevant to execution, including computation
of the award.

• Writ of Execution
- Issued in the name of the republic of the Ph signed by the Commission or LA, requiring the sheriff
to execute the decision of the Commissioner or LA, and must contain the ff;
1. Dispositive portion
2. Amount to be demanded
3. All lawful fees to be collected.

- Contempt Powers of SOLE

• Contempt of Court
- Involves the doing of an act, or the failure to do an act, in such a manner as to create an affront to
the court and the sovereign dignity with which it is clothed.
- Disobedience to the court by acting in opposition to its authority, justice, and dignity.
- Penalties;

DIRECT CONTEMPT INDIRECT CONTEMPT

RTC or higher: Fine not exceeding P2,000 or RTC or higher: Fine not exceeding P30,000 or
Imprisonment not exceeding 10 days, or both Imprisonment not exceeding 6 months, or both

MTC: Fine not exceeding P200 or Imprisonment MTC: Fine not exceeding P5,000 or Imprisonment
not exceeding 1 day, or both not exceeding 1 month, or both

If consists of violation of a writ of PI or TRO or

status quo order, may be ordered to make
complete restitution to the party injured by such
violation.

If contempt consists of refusal to do an act which is yet in the power of the respondent
to perform, he may be imprisoned by order of the court concerned, until he performs it.

- BUREU OF LABOR RELATIONS (BLR)

• Jurisdiction
1. “Inter-union disputes” or “representation disputes” which refer to cases involving petition for
certification election filed by a duly registered labor organization which is seeking to be
recognized as the sole and exclusive bargaining agent of the rank-and-file employees in the
appropriate bargaining unit of a company, firm or establishment. (Conflict between or among
unions)

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2. “Intra-union disputes” or “internal union disputes” which refer to disputes or grievances

arising from any violation of or disagreement over any provision of the constitution and by-laws of
the union, including any violation of the rights and conditions of union membership provided for in
the Labor Code. (Conflict within a union)
3. All disputes, grievances or problems arising from or affecting labor-mgt relations in all
workplaces, EXC: those arising from the interpretation or implementation of the CBA which are
subject of grievance procedure and/or voluntary arbitration.

• Administrative Functions
1. Registration of labor unions
2. Keeping of registry of labor unions
3. maintenance and custody of CBAs
4. Keeping of records of settlement of labor disputes and orders and decisions of voluntary
arbitrators

• Labor Relations Division in the Regional Office of DOLE

- BLR delegates its other powers to LRD wherein they may receive and hear cases involving unions
operating within 1 specific region.
1. Labor Organization and CBA Registration Unit
- For processing of applications for registration of independent union
2. Med-Arbitration Unit
- Conducts hearings and decides certification election, inter/intra union disputes and other
related labor relations disputes

• Periods to be observed
1. 30 days - CBA must be submitted to BLR or RO of DOLE for registration within 30 days from its
execution
2. 5 days - BLR or RO shall act upon the application within 5 calendar days from receipt thereof
3. 5 days - RO shall furnish the BLR a copy of CBA within 5 days from its submission

- NATIONAL CONCILIATION AND MEDIATION BOARD (NCMB)

• It is headed by an Administrator and 2 Deputy Administrators.
• Functions
1. Conciliation, mediation and voluntary arbitration functions of the Bureau of Labor Relations (BLR)
shall be absorbed by NCMB
2. Where the Notices of Strike or Lockout are filed
(No coercive powers of injunction)

- Compromise Agreements
• may be entered between the parties ANYTIME even with writ of execution
• Waivers and Quitclaims
GR: Not all quitclaims are per se invalid or against public policy
EXC: The ff is regarded as null and ineffective to bar the workers from claiming the full measure
of their legal rights.
1. Clear proof that the waiver was wangled from an unsuspecting or gullible person
2. Where the terms of the settlement are unconscionable other faces

- Mandatory Conciliation and Endorsement of Cases (Single Entry Approach - SENA)

• 30-day mandatory conciliation-mediation proceedings
• Prohibits dismissal for labor disputes for lack of jurisdiction
- Prohibition on Certification Election (Contract Bar Rule)
- Prohibits BLR/RO from entertaining any petition for certification election while a valid collective
bargaining agreement existing in an industry
EXC: 1. FREEDOM PERIOD - 60 days prior to the expiration of the CBA, or
2. CBA is not registered with the BLR or RO (CBA is still valid between the parties - union
and employer)

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- Privileged Communication
• Statements made at conciliation proceedings shall be treated privileged and shall not be used as
evidence in the Commission, and Conciliators shall not testify in any court or body regarding any
matters taken up at any court regarding any matters take up at conciliation proceedings conducted by
them.

- LABOR ORGANIZATIONS
• Any union or association of employees which exists in whole or in part for the purpose of collective
bargaining or of dealing with employers concerning terms and conditions of employment.

• Classification
1. Industry Union
- legitimate labor union operating within a specific industry

2. Independent Labor Union

- legitimate labor union operating at enterprise level whose legal personality is derived through
an independent action for registration
- Organized by employees themselves without affiliating themselves to a federation or national
unions

3. Federations and National Unions

- legitimate labor union with at least 10 locals, chapters, or affiliates who are certified collective
bargaining representatives in their respective industries.

4. Chartered Local/Chapter/Local
- legitimate labor union operating at enterprise level whose legal personality is derived through
the issuance of a charter certificate by a duly registered federation or national union

5. Separate exclusive bargaining unit / Bargaining unit

- Won in the certification election and

6. Minority Union
- Lost in the certification election

• Requirements for Registration

a. Registration fee (P50.00)
b. Names of its officers, addresses, principal address of the labor org, the minutes of the
organizational meetings and the list of the workers who participated in such meetings
c. If applicant is an independent union, names of all its members comprising at least 20% of all
employees in the bargaining unit where it seeks to operate (If applicant is chartered union, must
be accompanied by a charter certificate issued by the federation indicating its creation or
establishment)
d. If applicant union has been in existence for 1 year or more, copies of its annual financial reports
e. 4 copies of constitution and by-laws of the applicant union, minutes of its adoption or ratification,
and list of the members who participated in it.

• Legal Personality
- Deemed registered and vested with legal personality on the date of issuance of its certificate of
registration by BLR (independent union), or certificate of creation by federation union (chartered
local).
- NOT subject to a collateral attack but only through a separate action instituted particularly for the
purpose of assailing it. (Petition for cancellation or revocation of certification in BLR)

• Effect of Separation from Mother Union

a. Chartered union - loses all its legal personality from the Mother Union because the certification
of creation, which was created only for the purpose of certification election, is extinguished.
b. Affiliate - retains its legal personality since the certification of registration by the BLR is still
existing
(may only disaffiliate during the freedom period)
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• Grounds for cancellation of union registration (Republic Act No. 9481, May 25, 2007)
a) Misrepresentation, false statement or fraud in connection with the adoption or ratification of the
constitution and by-laws or amendments thereto, the minutes of ratification, and the list of
members who took part in the ratification;
b) Misrepresentation, false statements or fraud in connection with the election of officers, minutes of
the election of officers, and the list of voters;
c) Voluntary dissolution by the members
- exclusive to members of union
- Process:
i. Call for meeting specifically held for such purpose for cancelling union registration
ii. Must have vote of 2/3 of members of the union, otherwise, you cannot cancel it because
the right to unionize is a constitutional right of the employees. Therefore, you are denying
the constitutional right of employees to self-organization.
iii. Vote will be submitted under oath in BLR
iv. Application to cancel is submitted by the board of the org, attested to by the president

• Mixture of employees in one union is not a ground for cancellation of its registration
- Clearly then, for the purpose of de-certifying a union, it is not enough to establish that the rank-and-
file union includes ineligible employees in its membership. Pursuant to Article 239 (a) and (c) of the
Labor Code, it must be shown that there was misrepresentation, false statement or fraud in
connection with the adoption or ratification of the constitution and by-laws or amendments thereto,
the minutes of ratification, or in connection with the election of officers, minutes of the election of
officers, the list of voters, or failure to submit these documents together with the list of the newly
elected-appointed officers and their postal addresses to the BLR. (Air Philippines Corporation vs.
Bureau of Labor Relations, G.R. No. 155395 June 22, 2006)

• Effect of a Petition for Cancellation of Union Registration

- NOT suspend the proceedings for certification election nor shall it prevent the filing of a petition for
certification election, until the finality of judgment

• Equity of the Incumbent

- All existing federations which were qualified as legitimate labor organization and none of the
grounds for cancellation before the effectivity of this code (Nov 1, 1974) shall continue to maintain
their existing affiliates/chapters regardless of the nature of the industry and location of the affiliates.

- RIGHTS OF THE UNION MEMBERS

1. Political Right
2. Right to participate in policy and decision making
3. Right over the funds of the union
4. Right to information

• Check-Off
- Method of deducting from an employee’s pay at prescribed period, the amounts due to union for
fees, fines, or assessments for the purpose of raising funds for the union,
- Requisites
1. Individual written authorization duly signed by the employee
2. Authorization specifically state the amount, purpose, and beneficiary of the deduction

• Special Assessment (second collection)

- Requisites for the validity of the special assessment
1. Authorization by a written resolution of the majority of all the members at the general
membership meeting called for the purpose;
2. Secretary's record of the minutes of the meeting; and
3. Individual written authorization for check off duly signed by the employees concerned.

• Agency Fees
- Amounts deducted from the salary of a non-union member of the bargaining unit
- It may be deducted even without the consent of the employee
- Equivalent to the dues and other fees paid by members of the SOLE,
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(if such non-union member accept the benefits under the CBA)

- Qualifications of Union Officers

1. Employee of the company where the union is operating
2. Member of the union in good standing
3. Not convicted of a crime involving moral turpitude, EXC: absolute pardon
(cannot add other requirements)

• Election of Union Officers: By secret ballot at intervals of 5 years

- RIGHTS OF THE UNION

1. Act as representative of its members in the collective bargaining unit, members or not of the SOLE
2. Be the certified exclusive representative of all employees in an appropriate bargaining unit
3. To be furnished by the employer, upon written request, with its annual audited financial statements
3.1. within 30 calendar days from the date of receipt of the request, or
3.2. within the freedom period, or during the collective bargaining negotiation
4. Own property, real or personal
5. Sue and be sued in its registered name
6. Undertake all other activities not contrary to law for the benefit of the organization and its members

• Reportorial Requirements of the Union to BLR

a. Constitution and by-laws, including amendments, minutes, and list of persons participated, within
30 days from the adoption or ratification of the same.
b. List of officers, minutes of election and list of voters, within 30 days from election
c. Annual financial report within 30 days after the close of every fiscal year
d. List of members at least once a year or whenever required by BLR
(Failure to comply is not a ground for cancellation, but only subject to disciplinary actions)

- RIGHT TO SELF-ORGANIZATION
• Coverage: Right to unionize is a constitutional right to any employees regardless of the nature of
workers.
EXC:
1. High Level Government Employees
- functions are considered as policy making or managerial
2. Members of AFP, PNP, Firemen and Jailguards
- Sec 4, EO No 180
3. Employees of Int’l Org enjoying Immunity from Suits
4. Managerial Employees
- vested with the powers to lay down and execute mgt policies and/or to hire, transfer, suspend,
lay-off, recall, discharge, assign or discipline EEs
- EXC: Supervisory EEs (who, in the interest of the ER, effectively recommends managerial
actions and the exercise of such authority is not merely routinely or clerical but requires the use
of independent judgment), not eligible to join the union of rank and file EEs, but may form their
own separate union of their own.
5. Confidential Employees
- who by reason of their positions or nature of work, are required to assist or act in a fiduciary
manner to managerial EEs, and hence are privy to sensitive and highly confidential records
- excluded from rank and file union, nature of their employment is quite distinct warranting a
separate category, therefore, is not tantamount to discrimination
6. Employees of the Cooperative who are members of the cooperative
- who at the same time is a member and co-owner of the cooperative because an owner cannot
bargain with himself or his co-owners. Otherwise, if they are not a member and co-owner, they
are entitled to right to self-organization.

• Security Guards’ Right to Self-Organization

- The security guards and other personnel employed by the security service contractor shall have the
right to form, join or assist in the formation of a labor organization of their own choosing for
purposes of collective bargaining and to engage in concerted activities which are not contrary to law
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including the right to strike. (Section 10, Department Order N0. 14 Series of 2001, December 18,
2001)
- Conditions:
1. Union activities should be directed to Security Agency, and
2. OIC Guards are not included (supervisory guards vs normal guards)

• Right of Employees in the Public Service

- EEs of govt corp established under Corporation Code shall have the right to organize and bargain
collectively with their respective employers
- All other EEs in the civil service hall have the right to form associations for purposes not contrary to
law
- They have no right to strike. (The right to unionize, constitutional right, does not carry with it the
right to strike, statutory right)
- any collective activity undertaken by government employees with the intent of effecting work
stoppage or service disruption in order to realize their demands or force concessions, economic or
otherwise, is a prohibited concerted mass action and doubtless actionable administratively. xxx― in
the absence of statute, public employees do not have the right to engage in concerted work
stoppages for any purpose (Government Service Insurance System vs. Kapisanan ng mga
Manggagawa sa GSIS, G.R. No. 170132, December 6, 2006)

• Inclusion as union members of EEs outside the bargaining unit is NOT a ground for the cancellation of
the registration of the Union. Such EEs are automatically deemed removed from the list of
membership of said union.

• Non-abridgment of Right to Self-organization

- Unlawful for any person to restrain, coerce, discriminate against or unduly interfere with EEs and
workers in their exercise of the right to self-organization (choose their one representatives and to
engage in lawful concerted activities)
- if committed by ER, considered as ULP

- UNFAIR LABOR PRACTICE

• Refers to acts that violate the workers’ right to organize. The prohibited acts are related to the workers’
right to self-organization and to the observance of a Collective Bargaining Agreement. Without that
element, the acts, no matter how unfair, are not unfair labor practices. (Philcom Employees Union vs.
Philippine Global Communications, G.R. No. 144315, July 17, 2006)

• There must be existence of ER-EE Relationship and the acts complained of is related to the right to
self-organization.

• Aspects of ULP
CIVIL ASPECT CRIMINAL ASPECT

Committed by Officers and agents of the employer and Officers and agents of the employer
labor organization

Jurisdiction Labor Arbiter RTC

Quantum of Proof Substantial evidence Proof beyond reasonable doubt

Prescriptive period 1 year from the accrual of the ULP 1 year from the accrual of the ULP
- Crim is suspended once the civil/admin case is filed
- Final judgment of civil is a pre-requisite in filing the criminal case
- However, final judgment in civil is not binding and cannot be used as evidence in
the criminal case

• Penalty: Fine P1,000-P10,000 and/or Imprisonment 3 mos-3 years

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A. ULP of EMPLOYERS
A.1. Interfering, Restraining, or Coercing EEs
- To discourage them from joining or forming labor union through, interference in selection of its
negotiators, or economic inducements resulting in the promotion of those who withdrew from
the union, and etc.

A.2. Yellow Dog Contract or Ironclad oath

- Void undertaking by the EEs that as a condition for employment, they will not join, assist, form
or even foster a union for the duration of their employment with the ER.

A.3. Contracting Out Services

- ER contracts out services being performed by union members and such will interfere, restrain
or coerce EEs in the exercise of their rights to self-organization

A.4. Company Unionism

- Initiating, dominating, assisting or otherwise interfering with the formation and administration
of any labor org, including giving financial and other support, supervisory assistance and
passivity of the union

A.5. Discrimination
- In regard to wages, hours of work, and other terms and conditions of employment in order to
encourage or discourage membership in any labor org.

A.6. Retrenchment
- Dismissal or discharge of an EE as ULP it it some relations with his membership or non-
membership with the union or having given or being about to give testimony under labor code.

A.7. Paid Negotiation

- Paying by the ER Negotiation or Atty’s Fees to the Union or its officers or agents as part of
settlement of any issues in collective bargaining or any other disputes.

A.8. Refusal to Bargain with the Union

- Violate the duty to bargain collectively

A.9. Violation of CBA

- Gross violation of the CBA shall mean flagrant and/or malicious refusal to comply with the
economic provisions of such agreement

• Run-Away Shop
- Moving of its business to another location or temporarily closes its business for anti-union
purposes, or to discriminate against the EEs at the old company because of their union activities.
Relocation is motivated by anti-union animus and not business reasons.

• Blue-Sky Bargaining
- Exaggerated or unreasonable proposals

• Surface Bargaining
- Going through the motions of negotiating without any legal intent to reach an agreement.
- Whether an ER’s conduct demonstrates an unwillingness to bargain in GF or is merely hard
bargaining

B. ULP of LABOR ORGANIZATION

B.1. Restraining and Coercing EEs
B.2. Discrimination
- Membership has been denied or to terminate an EE on any ground other than the usual terms
and conditions under which membership or continuation of membership is made available to
other members

B.3. Refusal to Bargain

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B.4. Featherbedding
- To cause or attempt to cause an ER to pay or deliver or agree to pay any money or other
things of value, in the nature if an exaction, for services which are not performed or not to be
performed, including demand for fee for union negotiations
- NO featherbedding if the paid work is performed no matter how unnecessary or useless it may
be to the ER

B.5. Sweetheart’s Contract

- To ask for or accept negotiation or atty’s fees from ER as part of the settlement of any issue in
collective bargaining or any other dispute

B.6. Violation of the CBA

• UNION SECURITY CLAUSE

- It is a stipulation in the CBA whereby the ER undertakes to recognize the right of the union who
negotiated the CBA to maintain and protect its membership by imposing certain terms and
conditions in hiring EEs and retention of employment.
- Valid forms of union security and strength. NOT constitutes ULP

- ER may valid terminate employment pursuant to USC, provided;

1. Agreement is expressed in clear an unequivocal way so as not to leave room for interpretation
because it is a limitation to the constitutional right to self-organization. Any doubt must be
resolved against the existence of USC
2. Only prospective application
3. Right of every EE to due process must be strictly observed. Thus, termination is not automatic
upon the request of union
4. Agreement cannot be applied to EEs who are already members of the rival union or to the EE
who do not join unions pursuant to their religious beliefs

- Purpose:
1. Protection, to shield from whimsical and abusive exercise of mgt
2. Benefits, additional membership will insure additional source of income to the union
3. Self-preservation, strengthens the union through selective acceptance of new members

- Common Types of USC

1. Closed Shop Agreement
- ER binds himself to hire only members of the contracting union who must continue to
remain members of the union in good standing for the duration of the agreement as a
condition for continued employment

2. Union Shop Agreement

- ER enjoys the right to hire persons without regard to their membership or non membership
in the labor union, with provision that the person hired must become a member of the
contracting union after a specified period and must maintain his membership therein in
good standings for the duration of the agreement

3. Maintenance of Membership Clause

- NOT require non-members to join the union but provides that those who do join must
maintain their membership for the duration of the union contract, under penalty of discharge
- Should NOT be done hastily and summarily

4. Agency Shop / ANTI-FREE RIDER / HITCHHIKER

- Arrangement that requires an EE, as a condition of employment to pay the contracting
union a service fee known as Agency Fee for the benefits these EEs receive from the CBA
as a result of the efforts of the contracting union
- EXC: EEs with bona fide religious objections to joining a labor union

5. Preferential Shop Agreement

- Recognizes the right of the ER to select his EEs but requires him to give preference to
members of the contracting union who are qualified
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- ER needs only to determine and prove the ff to constitute just cause in terminating the employment
of an EE based on CBA’s USC;
1. USC is applicable
2. Union is requesting for the enforcement of the union security provision in the CBA
3. Sufficient evidence to support the unions decision to expel the EE from the union

- COLLECTIVE BARGAINING AGREEMENT

• A contract executed upon request of either the ER or SEBA incorporating the agreement reached after
negotiations with respect to wages, hours of work, and all other terms and conditions of employment,
including proposals of adjusting any grievances or questions arising under such agreement.


• Parts
1. Preamble
2. Recognition of the majority status of the contracting union
3. Management Prerogative
4. Union Prerogative
5. Scale of wages
6. Promotion of EEs
7. Leave of absence
8. Union Security Clause
9. Grievance Machinery and Voluntary Arbitration
10. Voluntary Arbitration
11. Check-off
12. Family planning
13. Labor Education
14. Effectivity Clause
15. Interpretation Clause

• Procedure
1. Written notice by a party desiring to negotiate to the other with a statement of its proposals
2. Reply by other party not later than 10 calendar days
3. Conference may be called to settle differences
4. If dispute is not settled, NCMB shall intervene upon request or on its own initiative
5. During conciliation proceedings, parties are prohibited from doing any act which may disrupt or
impede the early settlement of the disputes
6. NCMB shall settle disputes and encourage parties to submit their case to VA

• Good Faith Bargaining

- w/n a party has met his statutory duty to bargain in GF typically turns on the facts of the individual
case.

• Jurisdictional preconditions in bargaining

1. Possession of the status of majority representation by the employees' representative in
accordance with any of the means of selection and/or designation provided for by the Labor Code;
2. Proof of majority representation; and
3. A demand to bargain under Article 251, paragraph (a), of the New Labor Code. (Associated Labor
Unions (ALU) vs. Ferrer –Calleja, G.R. No. L-77282, May 5, 1989)

• Types of Bargaining
A. Single Enterprise Bargaining
B. Multi Employer Bargaining

• Stages in Collective Bargaining

1. Preliminary
2. Negotiation
3. Execution
4. Publication/Posting - 2 copies of signed CBA posted for at least 5 days prior to Ratification in 2
conspicuous areas in each workplace of the EE units concerned (Mandatory ER’s responsibility,
non-posting is a fatal defect)
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5. Ratification - Majority of all workers, even not member of SEBA. (CBA only affect those EE who
have ratified it)
6. Registration - Registered in DOLE (BLR); Requisites
1. Filed 30 days from execution of SBA with 2 full signed copies in RO/BLR
2. Original + 2 duplicate copies certified under oath by representatives of ER and Union
of the following;
2.1. CBA
2.2. Statement of compliance to Posting requirements
2.3. Statement of compliance to Ratification requirements
(No other document shall be required)
3. Payment of Registration fee P1,000
- Non-registration of the CBA remains valid and binding between the parties (ER and Union),
however contract bar rule is not applicable, thus, any legitimate labor union may file a petition
for certification election
7. Administration
8. Interpretation and Application

• “Duty to Bargain Collectively”

- Mutual obligation to meet and convene promptly and expeditiously in good faith for the purpose
of negotiating an agreement, but such does not compel any party to agree to a proposal or to
make any concession.

- “Boulwarism”
- In negotiation, Boulwarism is an offer or counter-offer that is not meant to be negotiated. This
is a "take it or leave it" strategy named after Lemuel Boulware a former vice president of
General Electric.
- Prohibited in PH because ER and Union are mandated to bargain in good faith
- While the law does not compel the parties to reach an agreement, it does contemplate that
both parties will approach the negotiations with an open mind and will make a reasonable
effort to reach a common ground of agreement

- “Contract Bar Rule”

- When there is an existing CBA, neither the employer nor the union may terminate nor modify
the Collective Bargaining Agreement during its lifetime. The parties are mandated by law to
keep the status quo and to continue with full force and effect the terms and conditions of the
existing CBA. This is known as the contract bar rule – the existence of the CBA (a contract
between the employer and the union) bars the modification or termination of the CBA except
during the freedom period.
- EXC: FREEDOM PERIOD - 60 days span prior to the expiration of the CBA. It is the time
when the parties may terminate or modify the terms and conditions of the CBA, time when a
petition for certification election to challenge the majority status of the contracting union, and
time to disaffiliate from the mother union.
- EXC: Need for industrial stability is clearly shown to be imperative (Only justified deviation)

- Automatic Renewal Clause

- CBA shall remain effective and enforceable even after the expiration of the period fixed by the
parties as long as no new agreement is reached by them and no petition for certification
election is filed.

• Terms of CBA
- Lifetime
a. 5 years from the time of effectivity - representation issue or the status of the union
b. 3 years from the time of effectivity - other provision (economic)

- GR: CBA extended to ten years - VALID if parties agreed to suspend the CBA and put in
abeyance the limit on the representation period
EXC: Exclusive Bargaining Status CANNOT Go Beyond Five Years, therefore, agreement does
not adversely affect the right of another union to challenge the majority status of the incumbent
bargaining agent within sixty (60) days before the lapse of the original five (5) year term of the
CBA
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• Effects of Early Agreements: Agreement prematurely signed, and even registered, by the union and
the company during the freedom period DOES NOT AFFECT the petition for certification election/
representation case filed by other union.

• Effectivity:
GR: Any new agreement that has been concluded within six months from the expiration of the original
agreement shall retroact to the day after the expiration of the original agreement.
EXC: if concluded beyond 6 months, parties shall agree on the duration of retroactivity thereof.
in case of dispute, should be referred to grievance and its effectivity depends on the order of
arbitration.

• Substitutionary Doctrine
- Employees cannot revoke the validly executed CBA with their employer by the simple expedient of
changing their bargaining agent. And it is in the light of this that the phrase "said new agent would
have to respect said contract" must be understood. It only means that the employees, thru their new
bargaining agent, cannot renege on their CBA, except of course to negotiate with management for
the shortening thereof.
- EEs can change their agent but the contract continues to bind them up to its expiration date. They
can only bargain for the shortening thereof.

• CBA Deadlock
- Situation where there is failure in the collective bargaining negotiations between labor union and
mgt resulting in a stalemate

- Regular Courts may acquire JD over a labor case

- Grievance machinery and VA do not have the power to determine and settle the issues at hand. They
have no JD and competence to decide constitutional issues relative to the questioned labor dispute.

- Bargaining Unit
- A group of employees of a given employer, composed of all or less than all of the entire body of
employees, consistent with equity to the employer, indicate to be the best suited to serve the
reciprocal rights and duties of the parties under the collective bargaining provisions of the law.

• Test in determining the appropriate bargaining unit

1. Globe Doctrine;
2. Community of Interest Rule;
3. Prior collective bargaining history; and
4. Employment status, such as temporary, seasonal and probationary employees

• Globe Doctrine
- In determining the proper bargaining unit, the express will or desire of the EEs shall be considered,
they should be allowed to determine for themselves what union to join or form. The best way to
determine their preference is through referendum.

• Community of Interest Rule

- Affinity and unit of employees’ interest, such as substantial similarity of work and duties, or similarity
of compensation and working conditions in a unit is the determining factor whether these EEs
belong to one bargaining unit.

• One Community One Union Policy

- Preferred by the Labor Code, anchored on the greater mutual benefits which the parties could
derive from enhance unity and solidarity.
- Such principle must yield to the EE’s right to form unions for purposes not contrary to law, to self-
organization and to enter into collective bargaining.

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- Methods to determine the SEBA
1. Certification Election: Process of determining through secret ballot the sole and exclusive
representative of the employees in an appropriate bargaining unit for purposes of collective bargaining
or negotiation. A certification election is ordered by the DOLE.

- Rules
• Who may file: Any legitimate labor org
• Bystander Rule: ERs are considered a stranger. It’s participation is limited to;
a. being notified or informed of the petition
b. submitting the list of EEs during the pre-election conference
c. Art 270: may file petition for certification election is it was requested to bargain collectively
by the Union/EEs.
• Where to file: RO/BLR
• When to file: Freedom period
• Form: In writing, verified under oath by the president of petitioner labor org
• Contents
1. Petitioner’s name, address and affiliation, date and number of cert of registration
2. ER’s name, address and nature of business
3. Description off the bargaining unit
4. Approx number of EEs in the bargaining unit
5. Names and addresses of other legitimate labor unions in the bargaining unit
6. Statement if any of the ff is present;
6.1.If bargaining unit is unorganised,
6.2.If there is existing CBA and petition is filed within the freedom period
6.3.If another union is previously recognized, the petition is filed outside the 1-yr bar rule
7. In organized establishment, the signature of at least 25% of all EEs in the bargaining unit
shall be attached to the petition at the time of its filing
8. Other relevant facts
• Posting: Duty of RO/BLR
• Raffle: to personally determine the Med-Arbiter assigned to the case by means of raffle
• Notice of preliminary conference:
• Forced intervenor: incumbent bargaining agent shall automatically be one of the choices in there
certification election as forced intervenor. Other legitimate labor org may file “Motion for
Intervention” with contents as same as that of a certification election.
• Preliminary Conference and Hearing
• Failure to appear despite notice is deemed a waiver of its right to be heard.
• Order/Decision - release personally to the parties

• Grounds for Denial of Petition for Certification Election

1. Petitioner is not listed as legitimate labor union, or its legal personality has been revoked
or cancelled with finality.
2. Filed before (Contract Bar Rule) or after (Negotiation Bar Rule) the freedom period
- Negotiation Bar Rule: Once the negotiation for a new CBA has been commenced
pursuant to Article 250, a petition for certification election may no longer be validly
entertained by the DOLE
3. Filed in violation of 1-year bar rule
- 1-year bar rule: A certification election cannot be held within one (1) year from the
date of issuance of declaration of a final certification election result.
4. Filed in violation of Deadlock Bar Rule
- Deadlock Bar Rule: A petition for certification election can only be entertained if there
is no pending bargaining deadlock submitted to conciliation or arbitration or had
become the subject of a valid notice of strike or lockout. The principal purpose is to
ensure stability in the relationship of the workers and the management
5. In case of organized establishments, failure to submit 25% support requirements for the
filing of the petition for certification election

- Appeal Bar Rule: Filling of the memorandum of appeal from the order or decision of the Med-
arbiter stays the holding of any certification election (Suspension)
EXC: Appeal will not stay the holding of certification election where the ER is an
unorganised establishment, and no union yet been duly organized as SEBA.
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• Qualification of voters
- GR: All EEs who are members of the bargaining unit 3 months prior to the filing of the petition
shall be eligible to vote. A dismissed EE who contested the legality of the dismissal at the time
of the issuance of the order to conduct election shall be eligible to vote.
EXC: Until the finality of the judgment declaring the dismissal to be valid.

- Members of religious groups who do not want to join unions may vote in a certification election
No law, administrative rule or precedent prescribes forfeiture of the right to vote by reason of
neglect to exercise the right in past certification elections. In denying the petitioners' right to
vote upon these egregiously fallacious grounds, the public respondents exercised their
discretion whimsically, capriciously and oppressively and gravely abused the same.

- All rank and file EEs can vote, including probationary EEs, as long as within the same
bargaining unit. Thus, supervisory EEs are excluded.

• Double Majority Rule

- Majority of the bargaining unit must have voted and the winning union must have garnered
majority of the valid votes cast, for there to have a valid certification election

• Failure of Election
- When the number of votes cast in a certification or consent election is less than the majority
number of eligible voters and there are no material challenged votes
- Effect: NOT a bar in filing a motion for the immediate holding of another election within 6
months from the date of the declaration

• A no-union may win a certification election of this choice gets the majority of all the valid votes
cast in the said election. Premised in the principle that the right to join unions carries with to the
right not to join any labor union.

2. Consent Election
- Voluntarily agreed upon by the parties, with or without the intervention of the DOLE.

3. Run-off Election
- Election between the labor unions receiving the two (2) highest number of votes in a certification or
consent election with three (3) or more choices, where such a certified or consent results in none of
the three (3) or more choices receiving the majority of the valid votes cast; provided that the total
number of votes for all contending unions is at least fifty percent (50%) of the number of votes cast,
and no objections or challenges which if sustained can materially alter the results.
- “No union” option shall not be a choice in run-off election

4. Voluntary Recognition
- Process by which legitimate labor union is recognized by the ER as the SEBA or agent in a
bargaining unit, reported with RO.
- Replaced by new provision “Request for SEBA Certification”

• Re-Run Election
- When a certification, consent or run-off election results to a tie between the two choices, the
election officer shall immediately notify the parties of a re-run election. The election officer shall
cause the posting of a notice of a re-run election within five days from the certification, consent or
run-off election, shall be conducted within ten days after the posting of notice.

• “Request for SEBA Certification”

- Any legitimate labor organization may file a request for SEBA Certification in the Regional Office
which issued its certificate of registration or certificate of creation of chartered local. Statement of
the existence/nonexistence of other labor organizations/CBA

- Petition for Certification Election in Unorganised Establishment

- Election shall be automatically conducted by Med-Arbiter upon filing of a petition by a legitimate labor
org.
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- GRIEVANCE MACHINERY and VOLUNTARY ARBITRATION

• Grievance: Any question by either the employer or the union regarding the interpretation or
implementation of any provision of the collective bargaining agreement or interpretation or
enforcement of company personnel policies.
- EXC: Gross Violations of Collective Bargaining Agreement is ULP, within JD of LA and NLRC
Gross violations of Collective Bargaining Agreement under Article 261 means flagrant and/or
malicious refusal to comply with the economic provisions of such agreement. Such gross
violations do not fall within the jurisdiction of the Voluntary Arbitrator or panel of Voluntary
Arbitrators because they are considered as unfair labor practice (ULP) under Article 248 thus,
cognizable by the Labor Arbiter and the NLRC.

• Voluntary arbitration: Mode of settling labor-management disputes by which the parties select a
competent, trained and impartial third person who shall decide on the merits of the case and whose
decision is final and executory.
- All grievances submitted to GM which are not settled within 7 calendar days from its submission
shall automatically be referred to VA.
- VA designated in the CBA should commence the arbitration. If not designated, the NCMB shall call
the parties and appoint arbitrators. If parties fail to select, regional branch of NCMB shall designate
the voluntary arbitrator which has to same force and effect as if the parties have selected them.

- Jurisdiction of VA
1. Original and exclusive JD to hear and decide all unresolved grievances from the interpretation
or implementation of CBA and company personnel policies which remain unsolved after 7
calendar days
2. Original and exclusive JD to hear and decide wage distortion issues arising from the
application of any wage orders in organized establishments, and unresolved grievances
arising from the interpretation and implementation of the productivity incentive programs


EXC: VA may resolve all other disputes, provided the ff are present;
1. Agreement of the parties expressly stipulated in the CBA
2. Agreement between the Union and the Company states in unequivocal language that
the parties conform to the submission of these disputes to voluntary arbitration

• Compulsory Arbitration: Process of settlement of labor disputes by a government agency which has
the authority to investigate and to make an award which is binding on all the parties, and as a mode of
arbitration where the parties are compelled to accept the resolution of their dispute through arbitration
by a third party.
- Disputes falling within the JD of VA cannot be decided by compulsory arbitrator since its JD is
mandated by law and stipulation of parties is not allowed.

• Cost of VA: CPA shall provide a proportionate sharing scheme, whether shouldered by both parties or
subsidised by Special Voluntary Arbitration Fund, taking into consideration the ff;
1. Nature of the case
2. Time consumed in hearing
3. Professional standing of the VA
4. Capacity to pay of the parties
5. Fees provided by Revised ROC

- STRIKES and LOCKOUTS

• Strike
- Any temporary stoppage of work by the concerted action of the employees as a result of industrial
or labor dispute. A labor dispute includes any controversy or matter concerning terms or conditions
of employment or the association or representation of persons in negotiating, fixing, maintaining,
changing or arranging the terms and conditions of employment, regardless of whether the
disputants stand in the proximate relation of employer and the employee. (Bukluran ng
Manggagawa sa Clothman Knitting Corp. – Solidarity Unions of the Philippines for Empowerment
and Reform vs. Court of Appeals, G.R. No. 158158, January 17, 2005) 


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• Lockout
- Temporary refusal of an ER to furnish work as a result of an industrial or labor dispute
- Requisites and Procedure, same. EXC: NO UNION BUSTING since ER has no Union
- Penalties to an Illegal Lockout: payment of wages for every day the EEs are NOT allowed to work
- Lockout vote: Majority of the BOD

• Picketing
- Right of workers to peacefully march to and from before an establishment involved in a labor
dispute generally accompanied by carrying and display of signs and placards intended to inform the
public about the dispute as well as their grievances.

• Forms of Strike
1. Economic Strike
- To demand higher wages, OT pay holiday pay, vacation pay, and other economic benefits
from the ER which he is not required by law to grant
2. ULP Strike
- To protest against the ER’s acts of ULP.
- GR: strike based on a non-strikeable ground is an illegal strike
EXC: However, even if no ULP acts committed, as long as EEs believe in good faith and
the circumstances must have warranted such belief that ULP exist so as to constitute a
valid ground to strike, then the strike may be legal.
3. Legal Strike
- Staged for a valid purpose and conducted through means allowed by law
4. Illegal Strike
- For a purpose not recognized by law, or if for a valid purpose but conducted through means
not allowed by law
5. Slow down Strike
- Staged without the workers quitting their work but by merely slacking or by reducing their
normal work output
6. Quickie Strike
- Brief and unannounced temporary work stoppage that is closely related to slow down strike -
ILLEGAL
7. Wildcat Strike
- To declare and stage a strike without the approval of the majority members of SEBA, thus,
strike is not protected, EXC: when union joins and ratifies the act
8. Sit down Strike
- Workers stop working but do not leave their place of work, ILLEGAL
9. Sympathy Strike
- To make common cause with the strikers of other companies without demands or grievances
of their own against their ER - ILLEGAL

• Requisites of a Valid Strike (mandatory, otherwise strike is illegal)

1. Valid ground
1.a. Bargaining deadlock
1.b. ULP
1.c. Union Busting (dismissal of the duly elected officers of the union and such dismissal
threatens the existence of the union)
2. Notice of strike filed with the Regional Branch of the NCMB _ days before the intended date
thereof or fifteen days in case of unfair labor practice;
2.a. Bargaining deadlock - 30 days
2.b. ULP - 15 days
2.c. Union Busting - no cooling off period because notice, may take action immediately after the
strike vote is conducted. Compliance of Strike ban only
3. Observance of Cooling off period is indispensable, EXC: Union busting because of the extreme
necessity to protect the existence of the union
4. Notice of the Conduct of Strike Vote to NCMB - 24-hour prior notice before the conduct of strike
vote
5. Conduct of Strike Vote - Majority of the total union membership in the bargaining unit, obtained by
secret ballot in meetings or referenda called for that purpose.
6. Strike Vote Report - submitted to NCMB at least 7 days before the intended strike
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7. Strike Ban or Waiting Period - 7 days before the intended strike for purposes of verification of the
votes casted.

- Number of total number of days

1.a.Bargaining deadlock - 37 days
1.b. ULP - 22 days
1.a. Union Busting - 7 days
- HOWEVER, if negotiations are proven futile even before the expiration of cooling off period, he
may send notice and conduct strike vote right away, and further report to. BUT, he must finish the
mandatory required number of days, including the Strike Ban.

- Striking of Medical EEs

- Striking EEs or locking out ERs must provide and maintain an effective skeletal workforce of
medical and other health personnel, whose movement and services shall be unhampered and
unrestricted, to insure proper and adequate protection of the life and health of the patients

• Effects of an Illegal Strike

a. Any union officer who knowingly participates in an illegal strike may be dismissed
b. Any worker or union officer who knowingly participates in the commission of illegal acts during a
strike may be dismissed, mere participation of EEs in an illegal strike is not sufficient ground for
their dismissal
c. Ordinary striking worker cannot be terminated for mere participation in a lawful strike, even if a
replacement had been hired by the ER during such lawful strike

• Assumption of jurisdiction of SOLE/President is discretionary

- The powers granted to the Secretary under Article 263(g) of the Labor Code have been
characterized as an exercise of the police power of the State, with the aim of promoting public
good. When the Secretary exercises these powers, he is granted ―great breadth of discretion in
order to find a solution to a labor dispute. The most obvious of these powers is the automatic
enjoining of an impending strike or lockout or its lifting if one has already taken place. The authority
of the Secretary to assume jurisdiction over a labor dispute causing or likely to cause a strike or
lockout in an industry indispensable to national interest includes and extends to all questions and
controversies arising from such labor dispute. The power is plenary and discretionary in nature to
enable him to effectively and efficiently dispose of the dispute.
- Once assumed JD, strike or lockout should be enjoined and workers should be compelled to return
to work and ERs should allow them.
- Must be certified by NLRC

• Prohibited Activities during Strike and Lockouts

1. No strike without bargaining first
2. No person shall obstruct, impede, or interfere with by force, violence, coercion, threats, or
intimidation, any peaceful picketing by EEs, nor shall aid such obstruction or interference
3. No ER shall use or employ any Strike-breaker, nor any person be employed as strike-breaker
4. No public official or EE shall bring in any individual who seeks to replace strikers in entering or
leaving the premises of a strike area, or work in place of the strikers.
5. No person engaged in picketing shall commit any act of violence, coercion, or intimidation or
obstruct the free ingress to of egress from ER’s premises for lawful purposes, or obstruct publiv
thoroughfares

• GR: All aliens and foreign org are strictly prohibited from engaging directly or indirectly in all forms of
trade union activities
EXC: Aliens with valid working permits and nationals of a country which grants the same rights
to Filipino workers (Principle of reciprocity)

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IMPROVED OFFER BALLOTING REDUCED OFFER BALLOTING

In case of Strike, NCMB or RO motto proprio or upon
request of any affected party, may conduct
referendum by secret balloting on the improved offer
of the ER on or before the 30th day of strike. If at
least majority of union members accepted the
improvement, striking workers shall immediately
return to work and ER shall re-admit them upon
signing of the agreement
In case of Lockout, NCMB or RO motto proprio or
upon request of any affected party, may conduct
referendum by secret balloting on the reduced offer
of the union on or before the 30th day of strike. If at
least majority of board accepted the reducement,
striking workers shall immediately return to work and
ER shall re-admit them upon signing of the
agreement

Not mandatory process, but only an option when the parties agreed upon on the offer.

- POST EMPLOYMENT
• Security of Tenure
- In cases of regular employment, the ER shall not terminate the services of an EE except for a just
cause or when authorized by this title

- Entitlement of EE unjustly dismissed from work

1. Reinstatement to his former position without loss of seniority rights and other privileges, or
Separation pay in lieu of reinstatement
2. Full backwages, inclusive of allowances
3. Damages
4. Attorney’s Fees
- Computed from the time his compensation was withheld from him up to the time of his actual
reinstatement, or until finality of judgment (if not reinstated).

- Instances in case Reinstatement is impossible (Separation pay in lieu of reinstatement)

1. Old Age (65 yrs old)
2. Position no longer exists
3. Establishment is taken over by another company
4. Insolvency of the ER
5. Closure of business
6. Strained Relations
- Amount of Separation pay: 1 month salary for every year of service

• Kinds of EEs
1. Regular EEs - (1) engaged to perform activities which are usually necessary or desirable in the
usual business or trade of the ER with probationary period, or (2) those even not usually
necessary or desirable in the nature of the business but already rendered service for at least 1
year, whether continuous or broken.
2. Project EEs - Employment has been fixed for a specific project, wherein the completion of which
has been determined at the time of the engagement of the EE, or where the work or services to
be performed is seasonal in nature and the employment is for the duration of the season.
3. Casual EEs - neither regular nor project EEs, work is merely incidental to the nature of ER’s
business.

- Repeated rehiring of project employee

- At this time, we wish to allay any fears that this decision unduly burdens an employer by
imposing a duty to re-hire a project employee even after completion of the project for which he
was hired. The import of this decision is not to impose a positive and sweeping obligation upon
the employer to re-hire project employees. What this decision merely accomplishes is a judicial
recognition of the employment status of a project or work pool employee in accordance with what
is fait accompli, i.e., the continuous re-hiring by the employer of project or work pool employees
who perform tasks necessary or desirable to the employer’s usual business or trade.
(Maraguinot Case)

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- NEW CASE: Cannot be considered as regular EE if the terms and conditions of the employment
was duly explained to the EE and its fixed termination was accepted by the EE. (Severino Case)

- Probationary Employment
- Probation is the period during which the ER may determine if the EE is qualified for possible
inclusion in the regular force.
- Shall not exceed 6 months from the date the EE started working, unless covered in
apprenticeship agreement stipulating longer period.
EXC:
1. Employment contract may agree otherwise (?)
2. Probationary Period of Private School Teachers
2.a. Tertiary level - Not more than 6 consecutive regular semesters of satisfactory service
2.b. Elementary and Secondary - 3 consecutive school years of satisfactory service
- LEGAL REQUISITES for the Acquisition by a Teacher
1. Teacher is a full-time teacher;
1.a. Possess at least minimum academic qualifications under the Manal
1.b.Paid monthly or hourly, based on regular teaching loads
1.c.Total working period; 8hrs/day (elem and secondary) or 18 hrs/week
(tertiary)
1.d.No other remunerative occupation elsewhere requiring working hrs in
conflict in the working hrs in the school
1.e.Not teaching full time in any other educational institutions
2. Teacher must have rendered their respective probationary period; and
3. Such service must have been satisfactory.

- Double probationary period - ILLEGAL for violation of Right to Due Process

- The Hotel's system of double probation a transparent scheme to circumvent the plain
mandate of the law and make it easier for it to dismiss its employees even after they shall
have already passed probation. The policy of the Constitution is to give the utmost protection
to the working class when subjected to such maneuvers as the one attempted by the
petitioners. This Court is fully committed to that policy and has always been quick to rise in
defense of the rights of labor, as in this case. (Holiday Inn Manila vs. National Labor Relations
Commission, G.R. No. 109114, September 14, 1993)

• Termination by Employer
- Distinction between a dismissal just cause and a dismissal for authorized cause
- The clear-cut distinction between a dismissal for just cause under Article 282, payment of
separation pay, as a rule, is not required and a dismissal for authorized cause under Article
283, the law requires payment of separation pay.

A. Serious Misconduct
- Requisites:
1. Serious
2. Related to the performance of the EE’s duties
3. EE has become unfit to continue working for the ER
- In order to constitute serious misconduct which will warrant the dismissal, it is not sufficient
that the act or conduct complained of has violated some established rules or policies. It is
equally important and required that the act or conduct must have been performed with
wrongful intent.

B. Willful disobedience
- Requisites:
1. Conduct must be willful, or intentional characterized by a wrongful and perverse
attitude
2. Order violated bust be reasonable, lawful, made known to the EE and must pertain to
the duties which he has been engaged to discharge

C. Gross and Habitual Neglect

D. Fraud or Willful Breach
E. Commission of Crime
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F. Other Analogous Causes

- Due Process Requirement: Twin Notice Rule

1. NTE - to apprise him of the particular acts or omissions for which his dismissal is sought, and
2. NOD - to inform him of the decision to terminate him.
- Failure to comply with these mandatory procedural requirements taints the dismissal with
illegality and any judgment rendered by the employer without compliance therewith can be
considered void and inexistent. It should be emphasized that due process must be observed
in effecting an employee’s dismissal because the dismissal of an employee affects not only his
position but also his means of livelihood and his dependents’ sustenance. Thus, strict
adherence to the requirements set forth in the Labor Code, as amended, is essential.
- No need for a trial type hearing

• Authorized Causes
A. Installation of Labor-Saving Devices
B. Redundancy
C. Retrenchment to prevent losses
D. Closures or cessation of operations of establishment

- Notice Requirement - Serving a written notice for at least 1 month before the intended date to;
1. DOLE
2. Worker

- Separation Pay
1. Equivalent to at least his 1 month pay or to at least 1 month pay for every year of service,
whichever is higher - For Installation of Labor-Saving Devices and Redundancy
2. Equivalent to 1 month pay or at least 1/2 month pay for every year of service, whichever is
higher - For Retrenchment to prevent losses and Closures or cessation of operations of
establishment
EXC: ER may NOT pay Separation Pay if close is due to serious losses

• Disease as Ground for Termination

- Requirements:
1. His continued employment is prohibited by law, or is prejudicial to his health as well as to
the health of his co-EEs
2. He is paid separation pay equivalent to at least 1 month salary or to 1/2 month salary for
every year of service, whichever is higher. A fraction of at least 6 months being considered
as 1 whole year.
- Applied when the disease cannot be cured within period of 6 months even with proper
medication as certified by a competent public health authority. If can be cured, ER shall ask the
EE to take a LOA.

• No separation pay upon resignation – general rule

- GR: EE who voluntarily resigns from employment is not entitled to separation pay
EXC: Stipulation for payment of such in the employment contract or CBA, or payment of the
amount is sanctioned by established employer practice or policy.
- Failure to notify (Notice of Resignation) at least 1 month in advance, EE may be liable for
damages.
EXC: EE may resign without notifying provided;
1. Serious Insult by the ER or his representative on the honor and person of the EE
2. Inhuman and unbearable treatment by the ER/rep to EE
3. Commission of a crime by ER/rep against the person of the EE, or immediate members of
his family
4. Other analogous causes

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• CONSTRUCTIVE DISMISSAL
1. An involuntary resignation resorted to when continued employment is rendered
impossible, unreasonable or unlikely;
2. A demotion in rank and/or a diminution in pay; or
3. A clear discrimination, insensibility or disdain by an employer which becomes unbearable
to the employee that it could foreclose any choice by him except to forego his continued
employment.

- The test of constructive dismissal is whether a reasonable person in the employee’s position
would have felt compelled to give up his position under the circumstances. It is an act amounting
to dismissal but made to appear as if it were not. In fact, the employee who is constructively
dismissed may be allowed to keep on coming to work. Constructive dismissal is, therefore, a
dismissal in disguise. The law recognizes and resolves this situation in favor of the employees in
order to protect their rights and interests from the coercive acts of the employer.

- Suspension beyond 30 days – constructive dismissal

- Clearly, constructive dismissal had already set in when the suspension went beyond the
maximum period allowed by law. Section 4, Rule XIV, Book V of the Omnibus Rules provides
that preventive suspension cannot be more than the maximum period of 30 days. Hence, after
the 30-day period of suspension, the employee must be reinstated to his former position
because suspension beyond this maximum period amounts to constructive dismissal.

- RETIREMENT
• Is the result of a bilateral act of the parties, a voluntary agreement between the employer and the
employee whereby the latter after reaching a certain age agrees and/or consents to severe his
employment with the former.

• Qualification for retirement

- In case of retirement, the employee shall be entitled to receive such retirement benefits as he
may have earned under existing laws and any collective bargaining agreement and other
agreements: Provided, however, That an employee’s retirement benefits under any collective
bargaining and other agreements shall not be less than those provided herein.

- In the absence of a retirement plan or agreement providing for retirement benefits of employees
in the establishment, an employee upon reaching the age of sixty (60) years or more, but not
beyond sixty-five (65) years which is hereby declared the compulsory retirement age, who has
served at least five (5) years in the said establishment, may retire and shall be entitled to
retirement pay equivalent to at least one-half (1/2) month salary for every year of service, a
fraction of at least six (6) months being considered as one whole year.

- Unless the parties provide for broader inclusions, the term one half (1/2) month salary shall
mean fifteen (15) days plus one-twelfth (1/12) of the 13th month pay and the cash equivalent of
not more than five (5) days of service incentive leaves. (Sta. Catalina College vs. National Labor
Relations Commission, G.R. No. 144483, November 19, 2003)

• Computation of retirement pay

- For the purpose of determining the minimum retirement pay due an employee under this Rule,
the term ―one-half month salary‖ shall include all the following: (a) Fifteen (15) days salary of
the employee based on his latest salary rate. (b) The cash equivalent of not more than five (5)
days of service incentive leave; (c) One-twelfth of the 13th month pay due an employee; (d) All
other benefits that the employer and employee may agree upon that should be included in the
computation of the employee’s retirement pay. The foregoing rules are clear that the whole 5
days of SIL are included in the computation of a retiring employees’ pay. (Enriquez Security
Services, Inc. vs. Cabotaje, G.R. No. 147993, July 21, 2006)

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• Compulsory Retirement
- An employer is free to impose a retirement age less than 65 for as long as it has the employees’
consent. Stated conversely, employees are free to accept the employer’s offer to lower the
retirement age if they feel they can get a better deal with the retirement plan presented by the
employer. Thus, having terminated petitioner solely on the basis of a provision of a retirement
plan which was not freely assented to by her, respondent was guilty of illegal dismissal. (Jaculbe
vs. Silliman University, G. R. No. 156934, March 16, 2007, Cercado vs. Uniprom, Inc. October
13, 2010)

• Employee’s contribution must be deducted first

- Retirement benefits, on the other hand, are intended to help the employee enjoy the remaining
years of his life, releasing him from the burden of worrying for his financial support, and are a
form of reward for his loyalty to the employer. Since the computed amount of her retirement pay
is much lower than that provided under the law, she is entitled to receive the difference between
the actual amount of her retirement benefits as required by law and that provided for under the
PERAA. (Sta. Catalina College vs. National Labor Relations Commission, G. R. No. 144483,
November 19, 2003)

• Retirement of underground miners

- On February 26, 1998, Republic Act No. 8558 was signed into law and amended Article 287 of
the Labor Code and provided for the retirement benefits of underground miners. Based on R.A.
8558, ―n underground mining employee upon reaching the age of fifty (50) years or more, but
not beyond sixty (60) years which is hereby declared the compulsory retirement age for
underground mine workers, who has served at least five (5) years as underground mine worker,
may retire and shall be entitled to all the retirement benefits provided for in this Article.

- PRESCRIPTION
• Article 305 Offenses penalized under this Code and the rules and regulations issued pursuant thereto
shall prescribe in three (3) years.

• Prescription shall begin to run from the day of the commission of the violation of the law, and if the
same be not known at the time, from the discovery thereof and institution of judicial proceedings for its
investigation and punishment. The term of prescription shall not run when the offender is absent from
the Philippine Archipelago. (People of the Philippines vs. Duque, G.R. No. 100285, August 13, 1992)

• Prescription period for money claims

- All money claims arising from employer-employee relationship shall be filed within three (3) years
from the time the cause of action accrued. (Central Negros Electric Cooperative (CENECO), Inc.
vs. National Labor Relations Commission, G.R. No. 106246, September 1, 1994)

• Prescription period for illegal dismissal

- When one is arbitrarily and unjustly deprived of his job or means of livelihood, the action
instituted to contest the legality of one's dismissal from employment constitutes, in essence, an
action predicated "upon an injury to the rights of the plaintiff," as contemplated under Art. 1146 of
the New Civil Code, which must be brought within four [4] years. (Callanta vs. Carnation
Philippines, Inc., G.R. No. 70615 October 28, 1986)

- This is based on Article 1146 of the New Civil Code which states that actions based upon an
injury to the rights of the plaintiff must be brought within four years. Thus, the four-year
prescriptive period shall be counted and computed from the date of the employee's dismissal up
to the date of the filing of complaint for unlawful termination of employment. (Victory Liner, Inc.
vs. Race, G.R. No. 164820, March 28, 2007)

• Prescription Period for ULP: 1 Year

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- 13th month pay for certain types of employees
• Presidential Decree No. 851 mandating all employers to pay their rank and file employees regardless
of the nature of their employment and irrespective of the method by which their wages are paid
provided they worked for at least one (1) month during a calendar year.
• The 13th Month Pay must be given to the employees not later than December 24 of every year. The
13th Month Pay is computed by dividing the total basic salary earned for the year exclusive of
overtime, holiday, and night shift differential pay divided by 12.

(a) Employees Paid by Results. — Employees who are paid on piece work basis are by law entitled to
the 13th month pay. Employees who are paid a fixed or guaranteed wage plus commission are
also entitled to the mandated 13th month pay, based on their total earnings during the calendar
year, i.e., on both their fixed or guaranteed wage and commission.

(b) Those with Multiple Employers. — Government employees working part time in a private
enterprise, including private educational institutions, as well as employees working in two or more
private firms, whether on full or part time basis, are entitled to the required 13th month pay from all
their private employers regardless of their total earnings from each or all their employers.

(c) Private School Teachers. — Private school teachers, including faculty members of universities and
colleges, are entitled to the required 13th month pay, regardless of the number of months they
teach or are paid within a year, if they have rendered service for at least one (1) month within a
year.

- Solo Parent Welfare Act (Republic Act No. 8972)

• The employer shall provide for a flexible working schedule for solo parents provided that the same
shall not affect individual and company productivity

• No employer shall discriminate against any solo parent employee with respect to terms and conditions
of employment on account of his/her status. In addition to leave privileges under existing laws,
parental leave of not more than seven (7) working days every year shall be granted to any solo parent
employee who has rendered service of at least one (1) year.

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