THE LAW ON UNIONS (LABOR CODE)

The Right to Self-Organization

I. MEANING (Article 243, LCP)

The rights to join, assist, or form labor organizations for collective bargaining and lawful
concerted action for collective bargaining and mutual aid protection.
 Labor Organizations
- an organization, agency, committee, group, or plan in which employees take part
that deals with employers about such matters as wages and grievances
especially: labor union. An organization, agency, committee, group, or plan in which
employees take part that deals with employers about such matters as wages and
grievances especially: labor union.
 Collective Bargaining
- a process where the parties agree to fix and administer terms and conditions of
employment which must not be below the minimum standards fixed by law, and set a
mechanism for resolving their grievances.
 Lawful Concerted Action
- an employee action (as canvassing other employees) that concerns wages or
working conditions of others in addition to the employee and that contemplates group
activity.
 Mutual Aid Protection
- right to choose whether to form or join a union or workers' association belongs to
workers themselves.

II. GENERAL COVERAGE

(1) All persons employed in commercial, industrial and agricultural enterprises and in
charitable, religious, educational, and medical institutions whether operating for profit or
not shall be entitled for collective bargaining and for mutual aid and protection.
 Commercial Enterprises
 - any activity or enterprise entered into for profit. It does not mean it is a company,
a corporation, partnership, or has any such formal organization, but it can range
from a street peddler to Toyota.
 Industrial Enterprises
- means any workplace, permanent or temporary, including any building or
collection of buildings, shed, structure, yard or any other place, where
permanently or temporarily one or more persons are employed in any
manufacturing of goods or products processing and any other activity similar and
incidental thereto.
 Agricultural Enterprises
- means those small business concerns engaged in the production of food and fiber,
ranching, and raising of livestock, aquaculture, and all other farming and
agricultural related industries.
 Charitable Institutions
- means a charity, or an institution which is established for charitable, benevolent
or philanthropic purpose, and includes an institution of a public character.
 Religious Institutions
- Churches, temples, mosques and other places of worship and institutions that
exist to support and manage the practice of a specific set of religious beliefs.
 Educational Institutions
- any public or private preschool, elementary, or secondary school, or any
institution of vocational, professional, or higher education, except that in the case
of an educational institution composed of more than one school, college, or
department which are administratively separate units, such term means each such
school, college, or department.
 Medical Institutions
- a facility which is organized to provide medical care, including nursing and
convalescent care, in accordance with accepted standards as authorized by state
law and as evidenced by the facility’s license. A medical institution may be
public or private.
 Collective Bargaining
- a process where the parties agree to fix and administer terms and conditions of
employment which must not be below the minimum standards fixed by law, and
set a mechanism for resolving their grievances.
 Mutual Aid Protection
- right to choose whether to form or join a union or workers' association belongs to
workers themselves.
(2) The following are also included in the coverage of the Right To Self-Organization:
ambulant, intermittent and itinerant workers, self-employed people, rural workers and
those without any definite employers may form labor organizations for their mutual aid
and protection.
 Ambulant Workers
- those who have no definite place of work
 Intermittent Workers
- a person employed in state service that is not hired to work on a regularly
scheduled basis.
 Rural Workers
- those whose work is not located in the city or urban areas.
 Workers with no definite employers
- an employee in a civil service position, not having regular status, including but
not limited to those having short-term appointments, provisional appointments,
limited-term appointments and initial probationary appointments.
 Itinerant Workers
- A person who moves from place to place to find a job. An itinerant worker is not
confined to a single place and often does not own property. Itinerant workers are
most common in sectors with a large number of temporary jobs or a high degree
 of seasonality. For example, an itinerant worker may be an agricultural worker
who moves between two regions with slightly different growing seasons. The
number of itinerant workers may increase during recessions or other times with
low levels of job security.
 Self-employed Workers
- people who operate their own business and who are contracted to provide
services for others without having the legal status of an employee, i.e. people
who are engaged by a client, rather than an employer, to undertake the work.

(3) SPECIFIC COVERAGE

1. Supervisors (Article 212 & 245)
- Supervisory employees are those who, in the interest of the employer, effectively
recommend such managerial actions if the exercise of such authority is not
merely routinary or clerical in nature but requires the use of independent
judgment.
2. Terminated employees who are contesting their termination (Article 269)
3. Aliens with valid work permit (Article 40) and with reciprocity (Article 269)
- All aliens, natural or juridical, as well as foreign organizations are strictly
prohibited from engaging directly or indirectly in all forms of trade union
activities without prejudice to normal contacts between Philippine labor unions
and recognized international labor centers: Provided, however, That aliens
working in the country with valid permits issued by the Department of Labor and
Employment, may exercise the right to self-organization and join or assist labor
organizations of their own choosing for purposes of collective bargaining:
Provided, further, That said aliens are nationals of a country which grants the
same or similar rights to Filipino workers.
4. Government Employees (Article 24, 276, E.O. 180 Tupas v. NHC, G.R. No. 49677,
04 May 1989)
- With respect to other civil servants, that is, employees of all branches,
subdivisions, instrumentalities and agencies of the government including
government-owned or controlled corporations with original charters and who are,
therefore, covered by the civil service laws, the guidelines for the exercise of
their right to organize is provided for under Executive Order No. 180
5. Security Guards (R.A. 6715, E.O. 111, Meralco v. NLRC, 197 SCRA 286, 20 May
1991, En Banc)
 - in the event of a strike declared by their union, security personnel may neglect or
outrightly abandon their duties, such as protection of property of their employer
and the persons of its officials and employees, the control of access to the
employer’s premises, and the maintenance of order in the event of emergencies
and untoward incidents.
6. I.N.K. Members (A.Reyes v. Trajano, G.R. No. 84433, 02 June 1992)
- the INK employees, as employees in the same bargaining unit in the true sense of
the term, do have the right of self-organization, is also in truth beyond question,
as well as the fact that when they voted that the employees in their bargaining
unit should be represented by "NO UNION," they were simply exercising that
right of self-organization, albeit in its negative aspect.
7. New Employees (Article 277)
- Any employee, whether employed for a definite period or not, shall, beginning
on his first day of service, be considered as an employee for purposes of
membership in any labor union.
(4) EXCLUSIONS
1. High level government employees (E.O. 180, Sec 3)
- High-level employees whose functions are normally considered as policy-making
or managerial or whose duties are of a highly confidential nature shall not be
eligible to join the organization of rank-and-file government employees.
2. Employees of Coop who are members (Benguet Elec. Cop v. Calleja, G.R. No.
79025, 20 December 1989)
- A cooperative is by its nature different from an ordinary business concern being
run either by persons, partnerships, or corporations. Its owners and/or members
are the ones who run and operate the business while the others are its employees.
As above stated, irrespective of the number of shares owned by each member
they are entitled to cast one vote each in deciding upon the affairs of the
cooperative. Their share capital earn limited interest. They enjoy special
privileges as — exemption from income tax and sales taxes, preferential light to
supply their products to State agencies and even exemption from the minimum
wage laws.
- An employee therefore of such a cooperative who is a member and co-owner
thereof cannot invoke the right to collective bargaining for certainly an owner
cannot bargain with himself or his co-owners.
3. Managerial employees (Article 212, SPLF v. Calleja, G.R. No. 80882, 24 April 1989)
- It is maintained by the petitioner that under the Labor Code, managerial
employees are excluded from forming or joining a collective bargaining unit; and
under the collective bargaining agreement executed between Apex and
respondent union, among those who are excluded from the bargaining unit are: a)
managerial employees as defined in paragraph K, Article 212 of the Labor Code;
b) those performing supervisory functions; and c) those holding confidential
positions as determined by the company. Therefore, the employees holding the
positions of Supervisors II and III and those in the confidential payrolls should be
excluded from joining the bargaining unit and from voting in the certification
election. Likewise, those employees who are not paying union dues should be
excluded from the same since the existing CBA contains a Union shop provision.
4. AFP and Police personnel (E.O. 180, Sec 4)
- The Executive Order shall not apply to the members of the Armed Forces of the
Philippines, including police officers, policemen, firemen and jail guards.
5. Confidential Employees (Metrolab v. Confessor, G.R. No. 10855, 28 Feb 1996; Pier
8 v. Confessor , G.R. No. 110854, 13 Feb 1995)
- Collective bargaining in such a situation can become one-sided. It is the same
reason that impelled this Court to consider the position of confidential employees
as included in the disqualification found in Art. 245 as if the disqualification of
confidential employees were written in the provision. If confidential employees
could unionize in order to bargain for advantages for themselves, then they could
be governed by their own motives rather than the interest of the employers.
Moreover, unionization of confidential employees for the purpose of collective
 bargaining would mean the extension of the law to persons or individuals who
are supposed to act "in the interest of the employers. It is not farfetched that in
the course of collective bargaining, they might jeopardize that interest which they
are duty-bound to protect.
- Upon the other hand, legal secretaries are neither managers nor supervisors.
Their work is basically routinary and clerical. However, they should be
differentiated from rank-and-file employees because they are tasked with, among
others, the typing of legal documents, memoranda and correspondence, the
keeping of records and files, the giving of and receiving notices, and such other
duties as required by the legal personnel of the corporation. 8 Legal secretaries
therefore fall under the category of confidential employees. Thus, to them applies
our holding in the case of Philips Industrial Development, Inc. v. NLRC, 210
SCRA 339 (1992), that by the very nature of their functions, they assist and act in
a confidential capacity to, or have access to confidential matters of, persons who
exercise managerial functions in the field of labor relations. As such, the
rationale behind the ineligibility of managerial employees to form, assist or join a
labor union equally applies to them.
6. Employees of International Organizations – with immunity (ICMC v. Calleja, G.R.
No. 85750, 28 Sept 1911)
- Neither are the employees of IRRI without remedy in case of dispute with
management as, in fact, there had been organized a forum for better
management-employee relationship as evidenced by the formation of the Council
of IRRI Employees and Management (CIEM) wherein "both management and
employees were and still are represented for purposes of maintaining mutual and
beneficial cooperation between IRRI and its employees." The existence of this
Union factually and tellingly belies the argument that Pres. Decree No. 1620,
which grants to IRRI the status, privileges and immunities of an international
organization, deprives its employees of the right to self-organization.
7. Non-employees (Rosario Bros v. Ople, 131 SCRA 72, Compania Maritima v. AFW,
19 SCRA 259, 1967)
- Well-established is the principle that "findings of administrative agencies which
have acquired expertise because their jurisdiction is confined to specific matters
are generally accorded not only respect but even finality. Judicial review by this
Court on labor cases do not go so far as to evaluate the sufficiency of the
evidence upon which the Deputy Minister and the Regional Director based their
determinations but are limited to issues of jurisdiction or grave abuse of
discretion (Special Events & Central Shipping Office Workers Union vs. San
Miguel Corporation, 122 SCRA 557)." In the case at bar, the questioned decision
and order of execution of public respondents are not tainted with unfairness or
arbitrariness that would amount to abuse of discretion or lack of jurisdiction and,
therefore, this Court finds no necessity to disturb, much less, reverse the same
- It should be recalled that it was this Court which, in its resolution of May 16,
1962 in the execution and appeal incident (L-19651, 17 SCRA 513), allowed the
company to terminate the stevedoring and arrastre work of the union and to use
another union to perform that work. The company had the contractual right to
terminate the 1952 contract (Taylor vs. Uy Teng Piao, 43 Phil. 873). The lower
court did not err in sustaining the consignees. Rescission of the contract and in
enjoining the union from performing arrastre and stevedoring work.
WHEREFORE, that portion of the trial court's judgment declaring the arrastre
and stevedoring contract terminated, permanently enjoining the union and its
officials from performing arrastre and stevedoring work for the vessels of the
Compañia Maritima, and dismissing defendants' counterclaim is affirmed.
 THE LAW ON CERTIFICATION ELECTION

REPRESENTATION
ISSUES
ORGANIZED

UNORGANIZED ESTABLISHMEN
T
ESTABLISHMEN
ART 256
T
ART 257 EMPLOYER AS In organized establishments, when a verified
PETITIONER petition questioning the majority status of the
In any establishment where there is no certified incumbent bargaining agent is filed before the
bargaining agent, a certification election shall Department of Labor and Employment within
automatically be conducted by the Med-Arbiter the sixty-day period before the expiration of the
upon the filing of a petition by a legitimate labor collective bargaining agreement, the Med-
organization. (As amended by Section 24, When requested to
Arbiter shall automatically order an election by
Republic Act No. 6715, March 21, 1989)Marchbargain collectively, an secret ballot when the verified petition is
21, 1989) employer may petition
supported by the written consent of at least
the Bureau for an
twenty-five percent (25%) of all the employees
election. If there is no
in the bargaining unit to ascertain the will of the
existing certified
employees in the appropriate bargaining unit.
collective bargaining
To have a valid election, at least a majority of
agreement in the unit,
all eligible voters in the unit must have cast their
the Bureau shall, after
votes. The labor union receiving the majority of
hearing, order a
the valid votes cast shall be certified as the
certification election.
exclusive bargaining agent of all the workers in
All certification cases the unit. When an election which provides for
shall be decided within three or more choices results in no choice
twenty (20) working receiving a majority of the valid votes cast, a
days. run-off election shall be conducted between the
labor unions receiving the two highest number
The Bureau shall of votes: Provided, that the total number of
conduct a certification votes for all contending unions is at least fifty
election within twenty percent (50%) of the number of votes cast. At
(20) days in accordance the expiration of the freedom period, the
with the rules and employer shall continue to recognize the
regulations prescribed majority status of the incumbent bargaining
by the Secretary of agent where no petition for certification election
Labor. is filed. (As amended by Section 23, Republic
Act No. 6715, March 21, 1989)
 THE LAW ON UNION, CBA, ULP, AND STRIKES
Determination of Appropriate
Bargaining Unit
The Principle of Self-
Determination
(The Globe Doctrine)
The Mutuality of Interest Rule
The Globe Doctrine refers to the
method of determining the will or desire (UP V. Calleja, G.R. No 96189,
of the employee which is an important 14 July 1992)
factor in determining the appropriate
bargaining unit. The best way to
The Court further explained that "(t)he
determine such preference is through
test of the grouping is community or
referendum or plebiscite.
mutuality of interests. And this is so
because 'the basic test of an asserted
bargaining unit's acceptability is whether
or not it is fundamentally the
combination which will best assure to all
employees the exercise of their collective
bargaining rights' (Rothenberg on Labor
Relations, 490)." Hence, in that case, the
Court upheld the trial court's conclusion
that two separate bargaining units should
be formed, one consisting of regular and
permanent employees and another
consisting of casual laborers or
stevedores.
The Bargaining
History Rule
(The Rothenberg
Principle)
Rothenberg has this to say:
... it can be established that the true and
basic inspiration for the employer's act
is derived from the employee's union
affiliations or activities, the assignment
by the employer or another reason,
whatever its semblance of validity, is
unavailing. Thus, it has been held that
the facts disclosed that the employer's
acts in discharging employees were
actually prompted by the employers's
improper interest in the affected
employee's improper interest in the
affected employee's union affiliations
and activities, even though the employer
urged that his acts were predicated on
economic necessity, desire to give
employment to more needy persons,
lack of work, cessation of operations,
refusal to work overtime, refusal of
non-union employees to work with
union employees, seasonal lay-off,
libelous remarks against management,
violation of company rules.
(Rothenberg on Labor Relations, pp.
400-401; emphasis supplied.)
 THE LAW ON CERTIFICATION ELECTION
  BAR
CONTRACT
Article 232
The Bureau shall not entertain any
petition for certification election or any
other action which may disturb the
administration of duly registered
existing collective bargaining
agreements affecting the parties except
under Articles 253, 253-A and 256 of
this Code. (As amended by Section 15,
Republic Act No. 6715, March 21,
1989)
BARS TO C.E.
DEADLOCK BAR
DWU v. Secretary of
Labor
12 MO. POST C.E. Article 253 of the Labor Code reads: “It
BAR shall be the duty of both parties to keep the
status quo and to continue in full force and
RARILC
effect the terms and conditions in full force
and effect the terms and conditions of the
existing agreement until a new agreement
is reached by the parties.”
Be that as it may, the Court is not inclined
to rule that there has been a deadlock or an
impasse in the collective bargaining
process. As the Court earlier observed,
there has not been a "reasonable effort at
good faith bargaining" on the part of the
University. While DWUEU-ALU was
opening all possible avenues for the
conclusion of an agreement, the record is
replete with evidence on the University’s
reluctance and thinly disguised refusal to
bargain with the duly certified bargaining
agent, such that the inescapable conclusion
is that the University evidently had no
intention of bargaining with it. Thus, while
the Court recognizes that technically, the
University has the right to file the petition
for certification election as there was no
bargaining deadlock to speak of, to grant
its prayer that the herein assailed Orders be
annulled would put an unjustified premium
on bad faith bargaining.
 THE LAW ON UNION, CBA, ULP, AND STRIKES

COLLECTIVE BARGAINING
Meaning

According to P v. Fernandez
C.M. Aquino v. NLRC, G.R.
“A method of resolving NO. 87653, 11 Feb 1992
disputes over collective
“A process where the parties
interests of labor vis-a-vis
discuss their demand and
those of capital arrived at
counter- demands and, after
through negotiation”
haggling, agree on a
compromise, reflecting
concessions mutually given,
resulting on a contract”

“The resultant contract

provides for demandable
rights, not withdrawable doles.
When the employer signs a
collective bargaining
agreement, it recognizes the
rights of the workers and does
not merely concede certain
privileges to them out of the
goodness of its heart.”

THE LAW ON COLLECTIVE BARGAINING

THE DUTY TO BARGAIN

 When there is no CBA
Article 251
When there is no Collective
Bargaining Agreement that
would allow for a much
speedy manner to settle
disagreements, it shall be up
to the employer and the
representative of the
employees to bargain
collectively in accordance
with the provisions of the
code. The parties are not
compelled to agree.
When there is a CBA
Article 253
When there is an existing
collective bargaining
agreement, the duty to bargain
collectively shall also mean
that neither party shall
terminate nor modify such
agreement during its lifetime.
However, either party can
serve a written notice to
terminate or modify the
agreement at least sixty (60)
days prior to its expiration
date. It shall be the duty of
both parties to keep the status
quo and to continue in full
force and effect the terms and
conditions of the existing
agreement during the 60-day
period and/or until a new
agreement is reached by the
parties.
 THE LAW ON COLLECTIVE BARGAINING

PROCEDURES IN COLLECTIVE
BARGAINING (Article 250)

1 When a party desires to negotiate an agreement, it shall

serve a written notice upon the other party with a
statement of its proposals. The other party shall make a
reply thereto not later than ten (10) calendar days from
receipt of such notice;

2
Should differences arise on the basis of such
notice and reply, either party may request for a
conference which shall begin not later than ten
(10) calendar days from the date of request.

3 If the dispute is not settled, the Board shall intervene upon

request of either or both parties or at its own initiative and
immediately call the parties to conciliation meetings. The Board
shall have the power to issue subpoenas requiring the attendance
of the parties to such meetings. It shall be the duty of the parties

4
to participate fully and promptly in the conciliation meetings the
Board may call;

During the conciliation proceedings in the

Board, the parties are prohibited from doing
any act which may disrupt or impede the early

5
settlement of the disputes; and

The Board shall exert all efforts to settle

disputes amicably and encourage the parties to
submit their case to a voluntary arbitrator
CBA TERMS, PERIODS
 Article 253-A LCP

TERM AUTOMATIC RETROACTIVITY

Any Collective Bargaining Agreement that the parties may
enter into shall, insofar as the representation aspect is
concerned, be for a term of five (5) years. No petition
questioning the majority status of the incumbent bargaining
agent shall be entertained and no certification election shall
be conducted by the Department of Labor and Employment
outside of the sixty-day period immediately before the date of
expiry of such five-year term of the Collective Bargaining
Agreement. All other provisions of the Collective Bargaining
Agreement shall be renegotiated not later than three (3) years
after its execution.
Any agreement on such other provisions of the Collective
Bargaining Agreement entered into within six (6) months
from the date of expiry of the term of such other provisions as
fixed in such Collective Bargaining Agreement, shall retroact
to the day immediately following such date. If any such
agreement is entered into beyond six months, the parties shall
agree on the duration of retroactivity thereof. In case of a
deadlock in the renegotiation of the Collective Bargaining
Agreement, the parties may exercise their rights under this
Code.

SMCEU- PTGWO v. St. Lukes Medical Center v Sec of Labor

Confessor, G.R. NO.
Before the expiration of the 1987-90 CBA, the AFW was plagued by internal squabble splitting its
111262, 19 September
leadership between Del Prado and Purita Ramirez, resulting in the filing by AFW and Del Prado of a
1996 petition later docketed before the Department of Labor as NCR-00-M-90-05-077,... where a declaration
was sought on the legitimacy of Del Prado's faction as bona fide officers of the federation. Pending
Sec. 2 of Article XIV of
resolution of said case, herein private respondent SLMCEA-AFW brought to the attention of petitioner
the CBA. In accordance
via a letter dated July 4, 1990... that the 1987-1990 was about to expire, and manifested in the process that
with Article 253-A of the private respondent wanted to renew the CBA. This development triggered round-table talks on which
Labor Code as amended, occasions petitioner proposed, among other items, a maximum across-the-board monthly salary increase
the term of this of P375.00 per employee, to which proposal private respondent demanded a P1,500.00 hike or 50%
Agreement insofar as the increase based on the latest salary rate of each employee, whichever is higher.
representation aspect is
concerned, shall be for On September 17, 1990, private respondent wrote petitioner for the resumption of their negotiations
concerning the union's proposed CBA. Petitioner reacted by writing a letter on September 20, 1990
five (5) years from July
expressing willingness to negotiate a new CBA for the rank and file employees... who are not occupying
1, 1989 to June 30, 1994.
confidential positions. Negotiations thus resumed. However, a deadlock on issues, especially that bearing
Hence, the freedom on across-the-board monthly and meal allowances followed and to pre-empt the impending strike as voted
period for purposes of upon by a majority of private respondent's... membership, petitioner lodged the petition below. The
such representation shall Secretary of Labor immediately assumed jurisdiction and the parties submitted their respective pleadings.
be sixty (60) days prior
to June 30, 1994. On January 28, 1991, public respondent Secretary of Labor issued the Order now under challenge. Said
Order contained a disposition on both the economic and non-economic issues raised in the petition.
WHO ARE LIABLE FOR ULP?

On the part of the Ers (Art 248)

Those Employers who:

Interfered, coerced and restrained their ees to their right to self-organization

Require as a condition of employment that a person or an employee shall not join a labor organization or
 Those officers and agents of corporations,
associations and partnerships who

1. Actually participated in the commission

2. Authorized it

3. Ratified it
On the part of the Labor Unions/ Labor Organizations (Art 249)

Those officers, agents, or representatives who:

Restrain or coerce employees in the exercise of their right to self-organization

Cause or attempt to cause an employer to discriminate against an employee

Violate the duty or refuse to bargain collectively with the employer, provided it is the representative of
the employees

Cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other
things of value

Article 288
 Fine of not less than 1,000
pesos and not more than
10,000 pesos, or
 Imprisonment not less than
3 months and not more
ULP Penalties
Article 247 Article290
 Recovery of damages  1 year prescriptive
under the Labor Code period from accrual
bars any recovery under
the Civil Code.
(Prevents double
 than 3 years, or
 Both fine and
imprisonment upon the
Court’s discretion
 Any alien found guilty of
shall be summarily
deported upon completion
of sentence
jeopardy)
 Final judgment in labor
proceedings is a pre-
judicial issue to criminal
prosecution. (The unfair
labor practice case
should first be decided
before conducting the
certification election to
prevent the selection of
a company-dominated
union)
 Final judgment in labor
proceedings is not
binding evidence (in
criminal case) of guilt
but merely of
compliance or
prejudicial issue.
(Considered as proof of
compliance with the
procedural requirements
for the filing of the
criminal case)

3. THE LAW ON STRIKES

 Strike - any temporary stoppage of work by the concerted action of employees as a result of an
industrial or labor dispute. The requisites of a strike are temporary and the result of a labor
dispute.

1. PEACEFUL
a. If there is NO
- Illegal acts
- Coercion force
- Intimidation
- Threat
b. If there is NO obstruction of
- Ingress
 - Egress
- Public thoroughfare
2. DONE IN ACCORDANCE WITH LAW
a. Based on Legal Grounds
- ULP
- Deadlock
- Union-busting
b. Staged by Legitimate Labor
- ULP – any legitimate Labor Org
- Union-Busting – any legitimate Labor Organization
- Deadlock – The Exclusive Bargaining Agent
c. Following the Legal Procedure
- Notice of Strike
o Deadlock – before 30 days
o ULP - 15 days
o Union-Busting – 0 days
- Strike Vote
o Simple Majority
- Strike Vote results
o Submission to DOLE at least 7 days prior to actual strike
- Cooling off
3. CONSISTENT WITH NATIONAL INTEREST
a. If there is no defiance of:
- Assumption order
- Injunction
- Certification order
- Restraining order
- Return to work order
b. If there is no pending case involving the same issue in:
- Compulsory arbitration
- Voluntary Arbitration
- Other Pending
Sanction for Illegal Strike

 The Current Doctrine

An Illegal strike does not automatically warrant the wholesale dismissal of strikers. Only the following
strikers can be penalized with loss of employment status:

a. Union officers who knowingly participate in an illegal strike;

b. Union officers or members who knowingly participate in the commission of illegal acts
during a strike.

Illegal acts include violence, physical injuries, coercion, intimidation, possession of

deadly weapon, obstruction of the free ingress to and egress from the employer’s premises
and defiance of RTWO or assumption/certification order.

The law is permissive upon granting to the employer the option of declaring a union
officer who participated in an illegal strike and any striker who committed illegal acts during
the strike as having lost their employment status.
 If the strike is illegal, the employer cannot be restrained or enjoined from imposing the
appropriate sanctions against the union officers who knowingly participated in the illegal
strike and against any striking employee who committed illegal acts during the strike.

ARTICLE 282 – JUST CAUSES

a. Serious misconduct or willful disobedience by the employee of the lawful orders of his employer
or representative in connection with his work;
o NATHANIEL DONGON VS. RAPID MOVERS AND FORWARDERS CO.INC.,
AND NICANOR JAO; GR. NO. 163431, AUGUST 28, 2013
- The prerogative of the employer to dismiss an employee on the ground of willful
disobedience to company policies must be exercised in good faith and with due
regard to the rights of labor.
Petitioner maintains that willful disobedience could not be a ground for his
dismissal because he had acted in good faith and with the sole intention of
facilitating deliveries for Rapid Movers when he allowed Villaruz to use his
company ID.
Willful disobedience to the lawful orders of an employer is one of the valid
grounds to terminate an employee under Article 296 (formerly Article 282) of the
Labor Code. For willful disobedience to be a ground, it is required that : (a) the
conduct of the employee must be willful or intentional; and (b) the order the
employee violated must have been reasonable, lawful, made known to the
employee, and must pertain to the duties that he had been engaged to discharge.
Under the foregoing standards, the disobedience attributed to petitioner could not
be justly characterized as willful within the contemplation of Article 296 of the
Labor Code. He neither benefitted from it, nor thereby prejudiced the business
 interest of Rapid Movers. His explanation that his deed had been intended to
benefit Rapid Movers was credible. There could be no wrong or perversity on his
part that warranted the termination of his employment based on willful
disobedience.
b. Gross and habitual neglect by the employee of his duties;
o CENTURY IRON WORKS, INC., AND BENITO CHUA VS. ELETO BANAS;
GR.NO. 184116, JUNE 19, 2013
- Article 282 of the Labor Code provides that one of the just causes for terminating
an employment is the employees’ gross and habitual neglect of his duties.
To our mind, such numerous infractions are sufficient to hold him grossly and
habitually negligent. His repeated negligence is not tolerable. The totality of
infractions or the number of violations he committed during his employment
merits his dismissal.
Besides, the determination of who to keep in employment and who to dismiss for
cause is one of Century Iron's prerogatives. Time and again, we have recognized
that the employer has the right to regulate, according to its discretion and best
judgment, ell aspects of employment. It would be the height of injustice if we
force an employer to retain the services of an employee who does not value his
work.
c. Fraud or willful breach by the employee of the trust reposed in him by his employer or duly
authorized representative;
o ROLANDO TORRES VS. RURAL BANK OF SAN JUAN, INC., ANDRES CANO
CHUA, ETAL; GR.NO.184520, MARCH 13, 2013
- Further, the law mandates that before validity can be accorded to a dismissal
premised on loss of trust and confidence, two requisites must concur, viz: (1) the
employee concerned must be holding a position of trust; and (2) the loss of trust
must be based on willful... breach of trust founded on clearly established facts.
Anent the second requisite, the Court finds that the respondents failed to meet
their burden of proving that the petitioner's dismissal was for a just cause.
At any rate, the absence of the clearance upon which the contradicting claims of
the parties could ideally be resolved, should work against the respondents. With
only sworn pleadings as proof of their opposite claims on the true contents of the
clearance, the Court is bound to... apply the principle that the scales of justice
should be tilted in favor of labor in case of doubt in the evidence presented.
More importantly, the complained act of the petitioner did not evince intentional
breach of the respondents' trust and confidence. Neither was the petitioner
grossly negligent or unjustified in pursuing the course of action he took.
d. Commission of a crime or offense by the employee against the person of his employer or any
immediate member of his family or his duly authorized representatives; and
o SAMPAGUITA GARMENTS CORPORATION VS. NLRC AND EMILIA
SANTOS; GR. NO. 102406, JUNE 17, 1994
- There is no dispute in the case at bar that the decision of the respondent NLRC or
dering the private respondent’s reinstatement with back wages had indeed becom
e final and executory. Even so, we find, in light of the subsequent developments, 
 that the NLRC was not correct in sustaining the implementation of that decision. 
In Heirs of Francisco Guballa, Sr. vs. Court of Appeals,  this Court held that “the 
power of the NLRC to issue a writ of execution carries with it the right to look in
to the correctness of the execution of the decision and to consider supervening ev
ents that may affect such execution.”
The affirmance by the Regional Trial Court and the Court of Appeals of the priva
te respondent’s conviction for theft is justification enough for the NLRC to exerc
ise this authority and suspend the execution of its decision. Such conviction, whic
h was also upheld by the Supreme Court, is a supervening cause that rendered unj
ust and inequitable the decision mandating the private respondent’s reinstatement
, and with back wages to boot.
e. Other causes analogous to the foregoing.
o SAMPAGUITA AUTO TRANSPORT CORPORATION VS. NLRC AND EFREN
SAGAD; GR NO. 197384, JANUARY 30, 2013
- Independently of the discussions of the LA, NLRC, and CA about the alleged for
egery of Sagad’s signature in the contract and even if the Court were to consider t
hat Sagad went through a probationary period, the records indicate that he was re
tained even beyond the expiration of his supposed probationary employment on 
October 14, 2006. As the NLRC noted, Sagad claimed that he was dismissed by t
he company on November 5, 2006, after he was accused of conniving with condu
ctor Vitola in issuing tickets outside their assigned route. The company never ref
uted this particular assertion of Sagad and its silence can only mean that Sagad re
mained in employment until November 4, 2006, thereby attaining regular status a
s of that date. Under the law, “an employee who is allowed to work after a probat
ionary period shall be considered a regular employee.”.

ARTICLE 283 – AUTHORIZED CAUSES

a. Installation of labor saving devices

b. Redundancy
o SPI TECHNOLOGIES,INC. AND LEA VILLANUEVA VS. VICTORIA MAPUA;
GR. NO. 191154, APRIL 7, 2014
- Also connected with the evidence negating redundancy was SPIs publication of
job vacancies after Mapua was terminated from employment. SPI maintained that
the CA erred when it considered Mapuas self-serving affidavit as regards the
Prime Manpower advertisement because the allegations therein were based on
Mapuas unfounded suspicions. Also, the failure of Mapua to present a sworn
statement of Dimatulac renders the formers statements hearsay.
Even if we disregard Mapuas affidavit as regards the Prime Manpower
advertisement, SPI admitted that it caused the Inquirer advertisement for a
Marketing Communications Manager position. Mapua alleged that this
advertisement belied the claim of SPI that her position is redundant because the
Corporate Development division was only renamed to Marketing division.
Instead of explaining how the functions of a Marketing Communications
 Manager differ from a Corporate Development Manager, SPI hardly disputed
Mapua when it stated that, judging from the titles or designation of the positions,
it is obvious that the functions of one are entirely different from that of the other.
SPI, being the employer, has possession of valuable information concerning the
functions of the offices within its organization. Nevertheless, it did not even
bother to differentiate the two positions.
Furthermore, on the assumption that the functions of a Marketing
Communications Manager are different from that of a Corporate Development
Manager, it was not even discussed why Mapua was not considered for the
position. While SPI had no legal duty to hire Mapua as a Marketing
Communications Manager, it could have clarified why she is not qualified for
that position. In fact, Mapua brought up the subject of transfer to Villanueva and
Raina several times prior to her termination but to no avail. There was even no
showing that Mapua could not perform the duties of a Marketing
Communications Manager.
Therefore, even though the CA based its ruling only on the Prime Manpower
advertisement coupled with the purported disclosure to Mapua, the Court holds
that the confluence of other factors supports the said ruling. The Court does not
agree with the rationalization of the NLRC that if it were true that her position
was not redundant and indispensable, then the company must have already hired
a new one to replace her in order not to jeopardize its business operations. The
fact that there is none only proves that her position was not necessary and
therefore superfluous.
What the above reasoning of the NLRC failed to perceive is that of primordial
consideration is not the nomenclature or title given to the employee, but the
nature of his functions. It is not the job title but the actual work that the employee
performs. Also, change in the job title is not synonymous to a change in the
functions. A position cannot be abolished by a mere change of job title. In cases
of redundancy, the management should adduce evidence and prove that a
position which was created in place of a previous one should pertain to functions
which are dissimilar and incongruous to the abolished office.
c. Retrenchment to prevent losses
o SANOH FULTON PHILIPPINES; INC, AND MR. EDDIE JOSE VS.
EMMANUEL BERNARDO AND SAMUEL TAGHOY; GR NO. 187214, AUGUST
14, 2013
- The losses must be supported by sufficient and convincing evidence. The normal
method of discharging this is by the submission of financial statements duly
audited by independent external auditors. In this case, however, the Statement of
Income and Expenses for the yeat 1997-1998 submitted by the petitioners was
prepared only on January 12, 1999. Thus, it is highly improbable that the
management already knew on September 14, 1998, the date of Helen’s
retrenchment, that they would be incurring substantial losses.
- Sanoh is liable for illegal dismissal not because it failed to present its financial
statements but because the surrounding circumstances show that there were no
 impending losses which were "reasonably imminent as perceived objectively and
in good faith by the employer." Sanoh failed to discharge its burden to prove with
substantial and convincing evidence that the impending losses it expected to
incur were imminent and that the retrenchment it conducted was necessary to
prevent such losses.
d. Closing or cessation if operation of the establishment
o SKM ART CRAFT CORPORATION VS. EFREN BAUCA ETAL.; GR.NO.
171282, NOVEMBER 27, 2013
- Under Article 286 of the Labor Code, the bona fide suspension of the operations
of a business or undertaking for a period not exceeding six months shall not
terminate employment.
The NLRC correctly noted that the complaint for illegal dismissal filed by
respondents was premature since it was filed only eight days after petitioner
announced that it will suspend its operations for six months. In Nippon Housing
Phil., Inc. v. Leynes, G.R. No. 177816, August 3, 2011, a complaint for illegal
dismissal filed prior to the lapse of said six months is generally considered as
prematurely filed.
We stress that under Article 286 of the Labor Code, the employment will not be
deemed terminated if the bona fide suspension of operations does not exceed six
months. But if the suspension of operations exceeds six months, the employment
will be considered terminated. In Valdez v. NLRC, 349 Phil. 760. By the same
token and applying said rule by analogy, if the employee was forced to remain
without work or assignment for a period exceeding six months, then he is in
effect constructively dismissed.
o SANGWOO PHILIPPINES, INC, ETAL. VS. SANGWOO PHILIPPINES ,INC.,
EMPLOYEE UNION; GR. NO. 173154/GR NO. 173229, DECEMBER 9, 2013
- Closure of business is the reversal of fortune of the employer whereby there is a
complete cessation of business operations and/or an actual locking-up of the
doors of establishment, usually due to financial losses.
The employer is generally required to give separation benefits to its employees,
unless the closure is due to serious business losses. Article [297] of the Labor
Code does not obligate an employer to pay separation benefits when the closure
is due to serious losses. To require an employer to be generous when it is no
longer in a position to do so, in our view, would be unduly oppressive, unjust,
and unfair to the employer. Ours is a system of laws, and the law in protecting
the rights of the working man, authorizes neither the oppression nor the self-
destruction of the employer. Galaxie Steel Workers Union (GSWU-NAFLU-
KMU) v. NLRC, G.R. No. 165757, October 17, 2006
In this case, the LA, NLRC, and the CA all consistently found that SPI indeed
suffered from serious business losses which resulted in its permanent shutdown
and accordingly, held the companys closure to be valid. As such, SPI should not
be directed to give financial assistance amounting toP15,000.00 to each of the
minority employees based on the Formal Offer of Settlement. If at all, such
formal offer should be deemed only as a calculated move on SPIs part to further
 minimize the expenses that it will be bound to incur should litigation drag on,
and not as an indication that it was still financially sustainable. However, since
SPEU chose not to accept, said offer did not ripen into an enforceable obligation
on the part of SPI from which financial assistance could have been realized by
the minority employees.

THE PHILIPPINE LABOR DISPUTE ADJUDICATION SYSTEM

 Voluntary Arbitrator
o Luzon Dev. Bank v. NLRC, G.R. No. 120319, En Banc Oct 6, 1995
- The  jurisdiction conferred by law on a voluntary arbitrator or a panel of such
arbitrators is quite limited compared to the original jurisdiction of the labor
arbiter and the appellate jurisdiction of the NLRC for that matter. The
“(d)ecision, awards, or orders of the Labor Arbiter are final and executory unless
appealed to the Commission …” Hence, while there is an express mode of appeal
from the decision of a labor arbiter, Republic Act No. 6715 is silent with respect
to an appeal from the decision of a voluntary arbitrator.
 Yet, past practice shows that a decision or award of a voluntary arbitrator is,
more often than not, elevated to the SC itself on a petition for certiorari, in effect
equating the voluntary arbitrator with the NLRC or the CA. In the view of the
Court, this is illogical and imposes an unnecessary burden upon it.
The voluntary arbitrator no less performs a state function pursuant to a
governmental power delegated to him under the provisions therefor in the Labor
Code and he falls, therefore, within the contemplation of the term
“instrumentality” in the aforequoted Sec. 9 of B.P. 129. The fact that his
functions and powers are provided for in the Labor Code does not place him
within the exceptions to said Sec. 9 since he is a quasi-judicial instrumentality as
contemplated therein.
In effect, this equates the award or decision of the voluntary arbitrator with that
of the RTC. Consequently, in a petition for certiorari from that award or
decision, the CA must be deemed to have concurrent jurisdiction with the SC. As
a matter of policy, this Court shall henceforth remand to the Court of Appeals
petitions of this nature for proper disposition.

 National Labor Relations Commission

o St. Martin Funeral v. NLRC, G.R. No. 130866, Regalado En Banc Sept. 16, 1998
- Historically, decisions from the NLRC were appealable to the Secretary of
Labor, whose decisions are then appealable to the Office of the President.
However, the new rules do not anymore provide provisions regarding appellate
review for decisions rendered by the NLRC. However in this case, the Supreme
Court took it upon themselves to review such decisions from the NLRC by virtue
of their role under the check and balance system and the perceived intention of
the legislative body who enacted the new rules. “It is held that there is an
underlying power of the courts to scrutinize the acts of such agencies on
questions of law and jurisdiction even though no right of review is given by
statute; that the purpose of judicial review is to keep the administrative agency
within its jurisdiction and protect the substantial rights of the parties; and that it is
that part of the checks and balances which restricts the separation of powers and
forestalls arbitrary and unjust adjudications.”
 Secretary of Labor
o NEL v. Laguesma, G.R. No. 123426 En Banc March 10, 1999