DE LA SALLE UNIVERSITY COLLEGE OF LAW

Lasallian Commission on Bar Operations

Academics Committee

TRANSCRIPT OF DEAN ANNA MARIA D. ABAD’S

ONLINE LECTURE ON LABOR LAW [PART 2]

DISCLAIMER: DLSU College of Law’s LCBO Academics Committee does not take credit for the
online lecture conducted by Dean Anna Maria D. Abad and hosted by the Philippine Association
of Law School’s (PALS) Facebook page on April 28, 2020. This written transcript was made in order
to aid law students in their review and for those students who may have had difficulty in watching
the said online lecture. The contents of this transcript are based solely on the said online lecture.

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EDITOR’S NOTE: Throughout this transcript, the lecturer mentions slides and a diagram. This
refers to Dean Abad’s presentation which she refers to during her online lecture. This particular
presentation, as well as the diagram, have already been publicly released by PALS in PDF format
and has been uploaded in the same link provided. For your easier reference, we advise reading
this transcript along with Dean Abad’s materials for her PALS lectures.

- TRANSCRIPT BEGINS –

 Hello, good afternoon everybody! This is the 2nd part of my labor lecture series for PALS.
We will tackle classification of employment, right to self-organization, collective
bargaining, strikes, picketing and lockouts. We can go beyond if internet is not cut-off
again.

 But we'll first answer questions that were not answered last time:

 All 4 tests in determining the ER-EE relationship should be present. I gave a

mnemonic before = South West Disaster Control (SWDC)

(1.) Selection and Hiring;

(2.) Wages;

(3.) Dismissal; and

(4.) Control Test - which is the most important test, the most determinative factor.

 The question was "would it suffice to use control test to determine existence of
employer-employee relationship?" Sabi kasi ng isa dito, "minsan po kasi hindi mo
makita yung tatlong ibang elements." The answer is yes. The control test is the
most determinative test.

 In fact, if you can prove the one has control over the manner in which work can be
done, then an employer - employee relationship is deemed established. You don't
need to prove anything else. Of course, the other factors are important, but the
most important in the control test.

 Next question, "at this time of COVID crisis, can an employer of a vital industry (such as
the power industry) demand from their employees to be separated from their families and
to be quarantined for more than a month?" I'd like you to check Art. 89 and Art. 92 of the
Labor Code. You can apply it by analogy. Employer can actually require employee to do
overtime work and to work on their rest day. So, at these times of emergency, where there
is a need that vital industries have to be kept running, and vital for the economy, and for

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 the supply chains to maintain continuous work for all the elements of the supply work, so
employees can be required to work. But they should still be paid the proper remuneration
as may be provided for by law. But at this time, you can only do so much. Ah, one month…
I do not actually know if they can do the whole one month period.

 But, what I know, from what I heard from the US, there are some factories who
did that. But employees were properly fed, all food, all the perks. Their families
were allowed to call them, use the internet so that they could regularly contact
each other. Sometimes, during COVID, minsan the higher purse is more important.
So, yung tanong, pwedeng i-require? Yes. There is some basis under Labor Code,
they have to be properly remunerated for it. Now, there are cases when even just
proving that there is control is sufficient. Then, yes.

 Let's start with our subject matter for today. I promised to start where we left off. And this
is with respect classification of employment.

CLASSIFICATIONS OF EMPLOYMENT

 Last time, I told you classification of employment is part of management prerogatives.

 And, if you remember, management prerogatives, in a very simplistic viewpoint, is the

discretion of management how to operate the business.

 Now, in operations of the business… Now, to simplify, think of this situation, where
this is the business. This is COVID Café. I am the boss chief and you are all my
employees. Part of the management prerogatives, because I put in the capital, I
have the right to determine how to dispose of the capital and all the other
variables of the business, so that I will earn some kind of profit. Now, part of that
is to determine how many I will hire. How many will I hire in this COVID Café. And
concomitant with that what positions will I give you and how much will I pay and
what kind of classification of employment will be given to you. So, depending on
your capabilities then I will get an general manager, operations manager, finance,
HR, barista. That is part of management prerogatives.

 The part of classification of employment is also required. Because in that sense, one can
determine the benefits one can be given and the exercise of political rights in the
company.

 Let's say, in terms of minimum standards, the rule is that every employee is
entitled to the minimum standards provided for by law under the Labor Code,
except when it is explicitly said in the labor code that you are not entitled to it. So,
the general rule is that you are entitled, except when you are expressly excluded.
So, yan ang mga labor standards.

 So, in case of Classification of Employment, there are two tiers:

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 (1.) In respect of the nature of the job.

 So, in your slides, which were uploaded earlier, you have 6 classification of
employment, in accordance with the nature of the job which will be assigned. These
are regular, probationary, term, project, seasonal, and casual.

(2.) Now, another classification of employment is in terms of the ranking.

 Ito yung managers, supervisors, and rank-and-file. Now that classification is

important in determining whether or not they can join a union or they cannot join
a union. So, mamaya natin paguusapan yan pagpumunta na tayo sa self-
organization.

 So, let's focus on the classification in terms of the nature of the job.

 General Rule: An employee is deemed regular.

 The law presumes that the employment is regular. If the job that you were hired is
necessary or desirable in the usual trade or business of the employer. That's found
in Art. 295. Take a look at that article. Makikita niyo doon. It sets the tone.

 The first phrase sets the tone. It is mandatory. Bakit? Sabi, “the provisions of a
written agreement notwithstanding and regardless of the oral agreements
between the parties, the employment shall be seemed regular.”

 So, kahit anong pinagusapan natin o sinulat yan sa kontrata, the employment is
deemed regular for as long as the job you are hired is necessary or desirable for
the usual trade or business of the employer.

 Now, you have it in terms of, what is the main business of the employer or
company? Now, in terms of COVID Café, what would be a regular job? A regular
job is that which is necessary. Example, barista, waiters, kareha. In terms of a
school, sino ang regular doon? This is a job with which the school cannot exist. So,
teachers, registrar.

 However, the law also says “desirable in the usual trade or business.” Kasi sinabi
necessary OR desirable. Hindi sinabi necessary AND desirable.

 So, what is desirable? It means that, it may not be necessary, but it is desirable in
the usual trade of business. In COVID Café, for example what is a desirable job na
talaga necessary doon. Ano yon? Yung valet driver. Kunwari high end ka na café
and mahirap magpark. Do you need a valet driver regularly in a café? No, you
don't need that. But you want to make it easier for our customer to come in. So,
that could be a regular job because it is desirable.

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 Take a look at Art. 295, in the third slide. In the 1st paragraph, you will already see, the
three classifications of employment:

(1.) The first is regular employment; But it also says

(2.) Project employment; and

(3.) Seasonal employment.

 So sabi, where the employee has been engaged to perform activities which are usually
necessary or desirable in the usual trade or business is a regular employee, except for
project employment or when it is seasonal employment.

 So why are they in the same paragraph? Project and seasonal employment could be
actually a regular job by the very nature of their employment they are placed on a
season to season basis on a project to project basis.

 Okay, what is a project employment? Ang pinakamagandang example of project

employment, which is actually a regular job, but put in a project to project basis, are those
in the construction business. Let's say na may construction company dito. But it is not
always that there is always a project, a construction project. Lalo na yung maliliit na
contractors, noh? Kunwari yung mga bahay bahay lang yung ginagawa. Hindi yung mga
malalaking DMCI or Ayala. Halimbawa ako, maliit lang na contractor lang ako. Now,
question if I get a carpenter, can I make him regular? Yes, of course. The employee will
not refuse. In fact, they will thank you. But, can I also make them project employees? Yes,
I can make them project employees, for as long as at the time of the employment, when
I hire the carpenter, he is informed of the project nature of his employment.

 Why is project employment allowed? Because, it recognizes, in reference to certain

kinds of business, the jobs will not always be there. Only in project to project basis.
Hindi naman palagi akong may bahay gagawin. So, kukuha ako ng empleyado na
project to project basis. His employment with me is co-terminal with the project.

 Meaning to say, when the project is completed then the employment of that carpenter
is likewise completed. We will go more in detail with respect to project employment.
Overview muna.

 And then we have seasonal employment. So, what is seasonal employment? A good
example of a regular employee, na actual regular yan, but put into season. Yung sa farm.
Ihihire ko yung tao bilang farmer. So, dalawa lang yung kanyang… So, planting season
and harvesting season. In the meantime, between the planting and harvesting season,
ano ang mangyayari? Eh, wala siyang gagawin. Kaya doon ko lang siya kukunin on a
season to season basis. Doon ko lang kailangan sa planting at sa harvesting. So, that is a
seasonal employment.

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 Last, classification under Article 295, casual employment. In casual employment, it says
there, if you are not regular, if you are not project, if you are not seasonal, then you are
classified as a casual employee.

 However, if, even if you were hired as a casual employee, and that casual employee
continues, renders service for at least one year, 365 days, whether the service is
continuous or broken, and then, pag dating ng 365 days, then he will be considered as
regular, for as long as the activity with which he was hired continues to exist. So, he
becomes a regular as long as the activity with which he was hired continues to exist.

 Now, there are other classifications of employment, which are not found under Article
295.

 One of this is probationary employment which is found under Art. 296. Now, in
probationary employment, presumes that this is a regular job. However, the employer is
allowed to test an employee for a period of 6 months maximum. By, as a general rule, 6
months maximum. For the employer to determine, whether or not, he, this particular
person has qualified as a regular employee with the standards made known to him at the
time of hiring.

 Now, the 6th classification of employment is not even found in the Labor Code. This is
what we call the fixed term employment. Now, if you were to read the SC decision in the
Brent School Case, the SC here made a very exhaustive discussion. Well-researched, very
comprehensive and it appears from that research, that term employment was
inadvertently omitted when they codified the Labor Code. So, meron nang law on term
employment, dati pa. Nakalimutan lang ilagay sa Labor code. So, the SC in the Brent
School case stated that there is no indication that there is any intention to outlaw term
employment, because this is simply a meeting of the minds.

 So, let us discuss more, fully, our framework. So, general rule, employment is regular. So,
kung halimbawa, walang contract at hindi natin pinagusapan. Barista, pasok ka dito. And
presumption is regular employment. Burden of proof now is upon the employer to prove
that the employment is other than regular. So, kung sasabihin ko na, hindi ko yan hinire
as regular, hinire siya as probationary, the burden of proof is placed upon me that he is
hired in probationary basis.

 So, what would be the best proof? Definitely, that is why a written contract is
actually used by the employers to show that it was an employment other than a
regular employment. So, if it is project, probationary, term, casual… Hinire pala
kita based on those other classifications, the burden of proof is upon me to show
that. Otherwise, kung wala ang presumption is employment is regular.

 Then, we go into the exceptions.

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 Let's go to probationary employment. Again, what is probationary employment under
Article 296? Article 296 talks about probationary employment. But this presumes that it is
for a regular job.

 The probationary period is for, generally, a period of 6 months.

 Now, the peculiarity of probationary employment is that I should have informed

you, if I were to hire you as a probationary employee.

 I should have informed you what are the standards for regularization that I can
assess you before you can regularized. So, in short, I inform you that you are
placed in probation and I will assess your performance in accordance with
standards for regularization which are made known at the time of your hiring.

 Now, these standards are usually placed in a manual, ex. Code of conduct. Now,
that's already informing you what the standards are.

 Now, question, if you are a probationary employee, the law says 6 months (probationary
period). Question, can I put you on probationary period, for let's say, 1 year and a half?
You are a barista, pwede ba yun? Sabi ng batas 6 months lang. Tatanggapin mo ba yan.
Now, in these instances, there are exceptions. But, the burden of proof again is upon the
employer to show that there is a need for a longer probationary period and we (employee
and employer) agreed to that longer probationary period at the time of hiring.

 Halimbawa, sinabi ko, barista ka nga, but COVID Café is a high end café and we need
you to speak French and Chinese. So, you will be trained in those languages because most
of our clients speak in those languages. So, I will have to ask you to learn those languages
before you can become a regular. Tanong, tatanggapin mo ba yan? That's the reason
why I want to have a longer period. I want to have a longer period so you can have the
facility. So, if you agree to that, you will be bound by that agreement, kasi yung ang
ilalagay natin sa contract. So, that's one exception.

 First exception, if we agree on a longer period, and I, as employer, can justify the need
for a longer period, and you agree to that, then so be it. You will be bound to that. This is
the case of Web Weiser v. GTE Yellow Pages (?).

 Second exception, what if in this instance, probationary period matatapos na, You are
already been working for 5 months and 3 weeks na. So, next week tapos na probationary
period. So, I'm showing to you probationary appraisal sheet. I'm sorry but your
performance evaluation is bagsak. You did not make the cut. I will have to make you
leave. Question, if you ask me, on the other hand, for a second chance, if I agree to give
a second chance and extend it, then that will likewise be binding upon both of us. So, that
is the second exception to the 6 months general rule of probationary period. So, there is
an agreement to extend the probationary period.

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 Third exception is with respect to teachers. The law mandates a 3 years probationary
period for teachers, whether basic education teacher or tertiary teacher.

 Of course, question, if the employer, can the employer shorten the probationary period?
If hinire kita na barista, within 3 months palang, ang galing galing mo na mag French
and mag Chinese. Can I make you a regular? Yes, I can make you a regular. Why?
Because the probationary period is not necessarily 6 months. That is just the maximum,
but I can shorten it if I'm already satisfied with your performance. So, if you've learned
quickly, I can make you a regular. That is also a prerogative of management.

 Now, what about probationary contracts with a term. Halimbawa, yung mga long term
contracts. In some of the companies kasi, if probationary contract ka for a longer period
(ex. 1 and 1/2 years). Nagbibigay yan ng kontrata for 6 months. Probie 1: 6 months. Probie
2: 6 months. Probie 3 another 6 months. You cannot go to Probie 2 without passing Probie
1. You cannot go to Probie 3 without passing Probie 2. So, let us assume, that you passed
Probie 1 and then flunked Probie 2 and then ask me "bakit yung iba kong kasama may
Probie 3 na, ako wala?" Oh, diba, Probie 2, eh natapos na. You don't have to go back to
work anymore, because it means that the contract had already ended at the expiration
of the Probie 2 contract. Natapos na ang 6 months. Ibig sabihin hindi ka nagcomply sa
ating requirements. Bagsak ka pala. Pwede ba yun? I am not in any obligation to offer
you Probie 3 contract or to rehire you for a 3rd time, because I found your performance
in the Probationary 2nd period bad. Is that allowed? Sabi ng SC, SC had overturned a
previous case. Dati kasi, SC said "ah, term contract yan eh. So, yung Probie 2 contract,
nung nag-end na, the employer is no longer in any obligation to hire." The SC overturned
itself in the case of Yolanda Mercado v. AMA Computer Center. SC said you must
remember they are still a probationary employee. Although, his probationary
employment was cut down in several stages. So, the term nature of that contract should
not be given primordial consideration. Rather, probationary nature of the contract should
be given primordial consideration rather than term nature.

 Simply, as a probationary employee, you have the right to know why you failed to comply
with the reasonable standards made known to you at the time of your employment. So,
employer cannot just say to you "sorry, hindi ka na kailangan pumasok next week kasi
expired na term mo." Hindi. Because you have the right to know what happened. You are
supposed to be in probation. You have to be notified within a reasonable time of your
failure to comply with reasonable standards made known to you at the time of
employment. So, that is the case of Yolanda Mercado which has been reiterated in several
cases, mostly cases about schools. But, it can be applied in analogy in some other kinds.

 Term employment. Nakuha niyo ba toh, yung mga pinadalang slides? Nandito na tayo
sa page 3. Term employees kasi, these are employees that are hired for a specific period.
Employment ends upon arrival of the day certain indicated in the contract.

 Halimbawa na pagusapan natin, hanggang May 31, 2020 yung ating kontrata,
pag dating ng May 31, 2020, our employment relationship with end.

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 How do you distinguish that from project employment?

 Ganito kasi ang project employment. Ang project employment is tied to a specific
project. For example, I hired a specific person sa COVID Café for the
computerization of our cashering, yung cash flow, finance aspect. So, meron
akong pinagawang program sa IT na yun. Specifically, for a period of 6 months,
from January 1, 2020 to June. In a project contract, it is the completion of
projection which terminates the employment relationship. So, if the project is
completed by the particular person, Paolo. And Paolo finishes the project within a
4 month period, then the project is deemed completed and hence the project
contract ends, and hence the employment relationship is likewise terminated
because he has nothing else left to do. Now, the term in the project is merely
descriptive of the project but does not define the project itself. It is not
determinative of the employment relationship.

 Let us contrast that with term employment. In term employment kasi, the more important
thing there is the period itself. Sinabi ko, for a 6 month period, from January 1, 2020 to
June 2020, whatever job I ask you to do there, what is important there is the time frame.

 So, halimbawa, I told, ikaw gawin mo tong program na to from January to June.
So now, kung halimbawa, hindi niya natapos to. Term employee to ha. Kung hindi
niya natapos from January 1 to June 2020, is his employment deemed
terminated? The answer is yes. Bakit, because it is a term contract. It does not
matter what the job is. It does not matter. Kasi sinabi ko until June 2020 ka lang.
Yung binigay kong trabaho, that is just ancillary. I did not give you a project, I
wanted you to work for a specific period.

 Whereas, doon sa isa, ito ang project, tapusin mo yan. So, for example, tingan mo
kung project employee and he did not finish that particular project. Question, is
his employment (project employee's) deemed terminated? Answer, is he cannot
be considered terminated, because the project which he has been given was not
yet completed. Because he is tied to the project. He is required to finish the project.
So, kung lumampas lang naman yan, it will be extended lang because the project
has not yet been completed.

 Now, I want you to memorize what are the indicators of project employment. For one to
have a valid project employment, kailangan mag comply ka:

(1.) Employee must be informed specifically of the project, there must be a project
contract which specifically says what the project is, what is the name of the project, what
are the periods;

(2.) Duration is made known and clear to the employee;

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 (3.) Work that employee will perform is in relation to the project;

(4.) Written termination report to DOLE within 1 month after end of the project.

 Now, diba sabi ko sa inyo, pag construction worker pwede din talaga in between projects
siya. Halimbawa, yung contractor kanina, maliit lang. May project na bahay, natapos last
week. Tapos in 2 months, may nakuha nanaman akong bagong bahay na-irerepair. I can
get the same person. But, I can put him on a project to project basis. Am I required to
pay him for work in between those 2 projects? Answer, no. Why? Because, no work no pay
in between projects. He has no projects in between so I am not required to pay him.

 And during that time (in between projects), that carpenter can offer his services
to other parties.

 Now, if dumating na yung isang project and nagkataong open siya (carpenter), then I
can hire him under a project contract. Now, in order for that person to remain purely a
project employee, I have an obligation as an employer to file a written termination report
to the DOLE at the end of the project. Within 1 month at the end of the project, I have to
report that to the DOLE.

 So, the law now says, and this is really important for them to be considered really project:
there should be as many termination reports as there are many the projects he was
assigned.

 So, for example, I hired the carpenter was hired for 10 project. And in those
projects, I filed a termination report with the DOLE. So, question, has he become
a regular employee? No, why? For as long as, the elements are complied with, that
is a project employment pa rin, because every termination of the project, the
DOLE was given a termination report.

 Now, question, what if project 6 - 8, I forgot to file the termination report? Tapos
naglagay na lang ako ng termination ng project 9 and 10. Question, is that employee
regular or still project?

No, butas eh. In this instance, dahil nabutas siya, hinabol nalang sa project 9 and 10, sa
totoo lang he already became a regular employee because the termination report was
not submitted to the DOLE.

 Remember, burden of proof is on the employer. The most important factor in

proving validity of project employment is whether or not there were termination
reports submitted by the employer to the DOLE at the end of every project. So,
every project should have a termination report. Otherwise, kung nagkulang, he
becomes a regular employee.

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 Question, may a probationary employee be converted to project employment? For
example, yung barista, 1 and 1/2 years na, Probie 1, 2, and 3. Marunong na siya mag
French, marunong na siya mag Chinese, magaling pa siya magbarista. Noong nag end
na yung probationary contract niya, yung binigay ko sa kanya project employment. "O,
for a 1 year project, ilalagay kita sa bago kung Café sa BGC." Tanong, will that be
allowed? Answer, no. Why? Because, once they pass the probationary period, in
accordance with reasonable standards made known to them at the time of hiring, the
employee becomes regular. So, hindi pwede na bigyan ko ng project employment,
because the promise was that once you pass the probationary period, you become a
regular. You cannot be any other.

 Now, seasonal employee, a seasonal employee is one who is hired for work or services
which is seasonal in nature. So, I told you earlier, an employee in a farm is the best
example of a seasonal employee. Why? Because the farm, yung magsasaka doon, sa
totoo lang it is a regular job because it is necessary or desirable in the regular trade or
business of the employer. However, I hire him only in a particular season. As I said,
planting season and harvesting season. Yung planting season, sabihin natin, January to
March; and then harvesting season October to December. So, doon lang sa seasons na
yun, kung saan siya nahi-hire, and in between, from March all the way to September, wala
siyang trabaho.

 ‘Do they become regular? Generally, no. If I hire them for season to season only,
they are purely seasonal employees.

 However, there is now a new trending (sic). The SC said, in several cases, there is now a
category called "regular seasonal workers."

 Regular seasonal workers are seasonal workers who have been hired regularly for
the same seasons for a long period of time, for several seasons, doing the same
job or activity.

 So magsasaka siya for the planting season and magsasaka ulit siya for the
harvest season, let's say for 10 years. Question, what is the nature of that
particular employee? He is considered a regular seasonal worker. What do we
mean by regular seasonal worker? Halimbawa, dito sa hacienda, meron talaga
akong regular workers. Meron silang benefits as a regular employees, may CBA
sila, may 1 sack of rice per month. So, question, ikaw yung seasonal working, I am
hiring you for the planting and harvesting season. Question, will you be entitled to
the benefits, and you are already a regular seasonal worker because you have
been working with me for 13 years? Question, will you be entitled that 1 sack of
rice per month that you are hired during the planting season (Jan to March)? In
short, are you entitled to the 3 sacks of rice? Yes or no? Answer is no, you are not.
Bakit? Because the SC said, in the case of Universal Robina Sugar Milling, you are
considered regular seasonal employees, but are not entitled to the CBA benefits
that are given to regular employees.

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  So, dito they are regular seasonal workers but you have to distinguish them from
a real regular employee. Minsan ang gulo na noh? Pero, dito kasi, you will have to
remember, when you say regular employees, the presumption is that they are
working continuously for 12 months in the whole year. Whereas, in seasonal, 3
months, 3 months lang. So that was the distinction the SC made in the case
Universal Robina Sugar Milling v. Encabati.

 Now, casual employees are those employees which are hired to perform work or services
which are not necessary nor desirable in the usual trade or business.

 Now, sa COVID Café, ano ang pwedeng casual worker dito? Yung painter or
carpenter. That is not necessary in the usual trade or business. So, I can hire them
on a casual business.

 However, the law says, if that particular employee has rendered service for at
least one year, whether continuous or broken, then he becomes regular for as long
as the activity for which he was hired continues to exist.

 Let us put it in practical terms. Sabi, madali lang yan if continuous eh. So, from
January 1 until January 2 (of the next year), ibig sabihin naging regular na yan.
Kahit painter lang siya. Bakit on year? I had him make micro polka dots for 1 year.
Pero hindi ko siya kailangan. Casual lang siya. Pero, he now became a regular
because he worked for a year.

 Question, pano kung putol putol? Halimbawa, nag polka dots siya. In 2020, ginawa niya
polka dots for 5 months. In 2021, 3 months ginawa niyang triangle yung mga polka dots.
Tapos sa susunod na taon, 5 months + 3 months, sinabi ko "uy magtrabaho ko dito for 5
months." Question, at the end of the engagement, in 2022, when he worked for 5 months
again, has he become a regular employee? Yes. Why? Because the work that he did
cumulatively, for 3 engagements (5 + 3 + 5 = 13), has gone beyond the 1 year period. In
which case, he is considered regular for as long as the activity for which he was hired
continues to exist.

 So, ibig sabihin, for as long as may pinapagawa akong painting work sa kanya,
he is regular. Tanong, papano kung paiba iba? Painting siya noon, tapos ngayon
driver, and then dishwasher. Tanong, ano ang kanyang classification? Casual or
regular? Regular. Bakit? Kasi lumampas na siya sa 12 months.

 That ends our discussion for classification of employment.

 Meron bang questions? Sorry, hindi ko nakikita yung mga comments.

 If I understood the question correctly, you are now claiming your 13th month pay after
13 years? That would have prescribed because the prescriptive period for monetary

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 claims is only 3 years. Unless, meron decision sa SC awarding…. You know, kulang yung
question na ito. Baka hindi complete yung facts no? Let me just get back to it, and let me
just send you a private email na lang siguro.

UNIONIZATION AND RIGHT TO SELF-ORGANIZATION

 Now, let us now go into unionization. Right to self-organization. This is the political aspect
of labor relations.

 The reason why you want to organize yourself is because you (employee) want to have
better bargaining leverage with me (employer).

 Remember last time when we talked in the first part of our lecture. We talked
about the interest of management as against the interest of you people, as my
employees. What are my interests? Let me just put it in the context of a particular
situation. COVID Café no? Sabihin natin, ako, as your boss, as your employer, I
have complying strictly with the provisions of the Labor Code, all the minimum
standards, Philhealth, SSS, PAGIBIG, 13th month pay, overtime pay, holiday pay,
etc. Ok lang if kunwari, 1 year lang kayo in the employment. Now, tanong, what if
you had been employed with me for 10 years? And I have been giving you
everything that is in the Labor Code, the minimum standard. But, question? Are
you happy? But, am I doing anything wrong? Can you file a case against me? Pero
I'm complying with everything. Is there anything in the Labor Code which says
that I have to give you more? Meron ba? O, ngayon, you want more, well you
might want to organize yourself. There was no violation of the law, I was
compliant. But then again, will you be happy? Now, how will you force me to give
you better benefits? How will you do that? There are ways. Individually, pwedeng
sumipsip ka. There are some, kung naging favorite kita. But, what if not? So, there
are some who organize because they want better terms and conditions for work,
because management has not given them better terms for work, puro minimum
lang. So, the reason why people organize themselves is so that they can have
better bargaining leverage against management and so they can have better
terms and conditions of work (salary, benefits).

 Now, in fact, in that particular diagram I gave you the 1st time. Yung management
prerogative, capital, profit on the left side (employer); and then you have labor, work,
equitable share in the profits (employee). As I said, management is entitled to profits. The
laborers on the other hand demand an equitable share in the profits. Because, if they had
not worked in the manner the management dictated them to do so, then management
would not have gotten the profits in the first place. But, the Labor Code does not say how
you are supposed to get that. Wala naman sa Labor Code na management should give
30% of all of its net profits.' So, what does the Labor Code say? You can organize yourself
so you can have better bargaining leverage with the management in order that you can
do collective bargaining. That's when you can get your benefits.

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 Going into this, there are procedures you have to do before you can actually create a
union.

 First of all, you have define. Only those who are actually employed in the company can
unionize. So, there should be an employee-employer relationship.

 So, the existence of an employer-employee relationship is a condition sine qua non to

exercise the right to self-organization.

 Remember our discussion last week. We have COVID Café, and then we have our
employees, and then I had those who contracted out the job of security and
maintenance to a 3rd party. You remember that? So, not all those who work in the
COVID Café are my employees. Now, in that instance, where there are employees
of an independent contractor, meaning to say this is a valid job contractor.
Security guards and janitors are not my employees. Question, can the security
guards and janitors join in a union of the employees of COVID Café? Answer is no.
Why? Because there is no employee-employer relationship.

 Ibahin natin if labor only contractor lang yung agency, in which case, there is no
presumption of employee-employer relationship.

 Ibahin natin yun. Independent contractor talaga if nagcocomply with D.O. 174:

(1.) May capitalization;

(2.) He works for his own account;

(3.) Under his own responsibility;

(4.) Uses his own means and methods;

(5.) Free from the control of the capital, except as to the results; and

(6.) He has capital in the form of tools, equipment, machineries, and work premises

- Then that is presumed to be a valid job contracting arrangement. In which case,

his employees do not become my employees in COVID Café.

 As against all of my employees naman. Kayo naman, who among you can unionize? Let's
say this is a rank and filed union that you want to put up. Definitely, not all are rank-and-
file in COVID Café, dahil meron akong general manager, finance manager, operations
manager, HR supervisors, operations supervisors; So, yung mga yun hindi pwede sumali
sa rank-and-file union. So, let us go one by one.

 Who can unionize? General rule: all employees in COVID Café can join a union, exception:

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(1.) Law says government employees do not fall under the Labor Code, except
government employees of GOCCs without original charters, because they are treated as
private companies, so pwede sila.

(2.) Managers cannot by explicit provision of law cannot form or join unions. Why? They
cannot form their own unions because it would be an exercise in futility. Sila din naman
ang nagdedecide eh.

(3.) Supervisors cannot join with a rank-and-file union, but they can form their own union.
They law explicitly says, supervisors can form their own unions but they cannot join rank-
and-file unions. So, kung rank-and-file union ang gusto mo gawin, hindi pwede mong
isama yung supervisor mo.

(4.) Confidential employees. Sino yung confidential employees? Now, remember the
definition of confidential employees. These are employees who have access to
confidential information relating to labor matters. Now, these employees are considered
as akin to management. Right hand ito ng management. So, the SC said that confidential
employees, under the doctrine of necessary implication, for the same reasons why
management are likewise not allowed to form unions, then so should that particular
rationale apply to confidential employees. So, in this instance, confidential employees are
like management. They have access to confidential information relating to labor matters,
for which reason they are not allowed to join labor unions.

(5.) Members of a cooperative, because they are likewise the owners of the cooperative.
So, therefore, they actually are employers and hence they are not employees. They own
the enterprise itself. In which case, therefore, they are also prohibited from forming their
own union. It becomes an exercise in futility. Sila sila din naman ang maguusap.
(Exception to the exception are employees who are not members of the cooperative but
are employed by the said cooperative.)

(6.) Aliens and members of the diplomatic corps.

 General Rule: Aliens are not allowed to unionize.

 Exception: They will be allowed to unionize if they comply with 2 elements:

(1.) There is a valid working permit;

(2.) There is reciprocity, meaning to say that his countries allow Filipinos there to
join unions as well.

 Absent these two elements, the alien cannot be allowed to join the union.

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  You want to put up a union because you want to have bargaining leverage with
management. To be able to bargain with them in collective bargaining for the purpose of
coming up with an agreement for better terms and conditions of work.

 However, remember that management is not under any obligation to negotiate with
anybody except an exclusive bargaining agent. Meaning to say, nakadaan na sa isang
proseso. So hindi ako kailangan umupo sa harap ninyo kahit gumawa ako ng union. You
(the employee) have to go through a process to prove to me (the employer) that you are
representing a majority of members in that particular rank and file bargaining unit. How
to do that?

 You have to create a union. On your part, if you are a rank and file employee, you will
think, how do I create a union?

FORMATION OF UNIONS

 You have 2 choices, do you want to be in an independent union or do you want to be in a

federation. There are different requirements for these two and there are advantages and
disadvantages to each one.

 In an independent union there are more requirements. But you are independent.
Meaning to say you will not be dictated upon by any entity. The downside is if you
are a new union, nobody will support you. Hindi mo alam ano gagawin mo, wala
kang padrino.

 On the other hand if you want to fast track things the law allows you to affiliate
with a federation. Because there are lesser requirements.

 There are three requirements:

(1.) A chapter certificate;

(2.) Constitution and bylaws; and

(3.) Names of officers and their addresses.

 The advantage is you have support from the federation. The federation can
teach and guide you as to how you bargain, what to do, what particular
seminars, how will we teach our employees to be more aware of their
rights, etc.

 What is the disadvantage? You have to comply with the constitution and
bylaws of the federation. There are certain things they can impose upon
you. One of which is a portion of your union fees will be remitted to the
federation for the support they give.

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 In any event, if you choose to unionize independently, you will see that there are a lot of
requirements. There are a lot of documentary requirements. Most of the documentary
requirements would require: names of officer, constitution and by laws, and minutes of
the meeting, the most important thing is you have to show that you have a membership,
that is equivalent to the 20% of the total membership in the appropriate bargaining unit.

 How do you know what is the appropriate bargaining unit? Will classification of
employment play a role in the bargaining unit?

In terms of probationary, casual, seasonal, etc. the general rule is no. As long as you are
an employee, as of the first day of employment, you have the right to join or not join a
union. Regardless of the classification of work. What is important is you know the
hierarchy.

 You want to put up a rank and file union, you take out the supervisors, you take out the
managers, you take out those people who are not employees. Whoever is left is the
appropriate bargaining unit for the cafe. Example there are 100 employees in the rank
and file? How many signatures do we need? How many members do we need to be able
to show the DOLE that you have at least 20%? I will show 20 signatures to signify I have
20 members. That is not a requirement in a local chapter of a federation. Because it is
presumed that the federation will check on that themselves.

 A usual question in the bar now is objectives and distinction.

 I want you to study the definition (difference) between a labor organization and a
legitimate labor organization.

 Remember, not every union has rights. It must be a legitimate labor organization meaning
it must have registered itself with the DOLE.

 Distinguish between the union and the appropriate bargaining unit.

 The union is the political… (connection issues) …the appropriate bargaining unit is the
electoral body, yung kabuuan.

 An appropriate bargaining unit of the rank and file might be composed of

members of different unions. Kumbaga sa election, merong nationalista, may
liberal, may kung ano ano pang partido. Those are the unions. Pero yung buong
voters list, yun yung appropriate bargaining unit.

 Remember if you want to be a local chapter (referring to union affiliated with a

federation), you need 3 requirements:

(1.) Chapter certificate;

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 (2.) The names of your officers; and the

(3.) Constitution and bylaws.

 For purposes of filing a certification for election, lumabas na ito sa Bar 2 years ago. The
question was, can a local chapter already file a petition for certification election if the
DOLE had not issued a certificate of registration yet?

The answer is yes because the law explicitly states that for purposes of filing a certificate
of election what is required is only a charter certificate coming from the federation.

 What happens when you register yourself (referring to the union employees)? The union
is considered a legitimate labor organization.

 What happens? Then you acquire legal personality. You will now have vested rights to all
of the rights found in the Labor Code.

 When are you considered to have a legal personality? Once the certificate of registration
from the DOLE is issued.

 What is the effect of registration? The labor organization is now considered a legitimate
labor organization and is now vested with legal personality upon the date of issuance of
the certificate of registration of the DOLE. I cannot refuse to recognize you na. Yung legal
personality niyo meron na yan. You can now demand certain demands from the employer.

 What is the effect if you do not register yourself? Wala (referring to rights). You cannot
bargain with the employer. Ang gusto niyo lang ay gumawa ng social club. Ano yun?
Naguusap lang kayo kung kailan kayo magzuzumba. Pero di kinikilala ng employer yun.

 What are your rights as a legitimate labor organization?

(1.) You have a right to file for a petition for certification of election so that you can prove
to me that you represent the majortity of the employees in that appropriate bargaining
unit of that rank and file.

(2.) You have the right to financial statements of the company ;and

(3.) You can now own your own property. Bibili kayo kotse, condo unit kung san ilalagay
kotse niyo. You can do that.

 Eh papano kung may situation na ganito, may union nagtayo kayo ng rank and file, 100
kayo na rank and file tapos na-register niyo na. So you are now a legitimate labor
organization, then marami akong naging supervisor, then I promoted 20 rank and file
members as supervisors. Question, if I file for certification election, can I file a motion to

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 cancel the union registration on account of the fact that you have many supervisors within
your membership?

(1.) If this is a petition for certification election, I cannot question your status as a
legitimate labor organization. Because your legal personality has already been vested by
the issuance of that certification of registration.

(2.) The fact that you have supervisors within your membership is no longer a ground for
cancellation of union registration. The inclusion of membership of union members of
employees who are no longer rank and file is not a ground for cancellation of union
registration. In fact, the law now says that the employees who have been promoted are
deemed automatically removed from membership of your rank and file union.

 I want you to memorize, grounds for cancellation of union registration. Hindi pa natanong
ito for the last 2 years in the bar. Yung grounds for cancellation, tatlo lang yan, dati 16 or
17. Now the Congress whittled it down to these three. Just memorize these three and
whatever is not there you can cancel:

(1.) Misrepresentation or fraud in connection with election of officers;

(2.) Misrepresentation or fraud in connection with ratification and by laws;

(3.) Voluntary dissolution of members - when you yourself will decide to dissolve your
union

 Requirements of Voluntary Dissolution of Union: 2 / 3 of general membership must vote

to dissolve the union.

 Question, can the employer cancel the union registration? The Supreme Court has already
come up with the decision that the employer is simply a bystander. The Bystander Rule
only applies to petition for certification election but not to cancellation of union
registration. (AIM v. AIM Employees Union)

 Remember that the employer bystander ruling is interpreted by the Supreme Court
now from a very strict perspective. The employer as a bystander can only
intervene as regards to certification for election and not in for cancellation of
union registration.

 I’m presuming you know the difference between manager, supervisor, and rank and file.

 The manager is the boss chief, those who are vested with prerogative to create
and implement rules and regulations.

 On the other hand yung supervisor, those who have effective recommendatory
powers to lay down policies but they cannot implement immediately. It is just

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 simple effective recommendatory powers but remember that the exercise of
powers is not merely routinary or clerical but needs the use of independent
judgment. In short, halimbawa sa COVID Cafe sabi ng supervisor walang pasok
ngayon. Uuwi ba kayo? Hindi. Bakit? Birsor lang yan eh. You need to confirm with
the managers because they have the right to lay down and create the policies
whereas supervisor recommendatory lang.

 Paano mo malalaman kung member ka ng appropriate bargaining unit? Take out the
managers, take out the supervisors, take out the members of the janitorial and security
agency (contractors), tanggalin ang confidential employees, at managerial employees
under the doctrine of necessary implication the Supreme Court said they should likewise
be deprived of the right to self organization. For as long as they have access to
confidential information relating to labor matters. O sino pa tatanggalin? Papano yung
empleyado na nadismiss at may kaso? Member pa ba siya ng appropriate bargaining
unit? Halimbawa yung barista dinismiss ko pero nag file siya ng kaso questioning the
validity of the termination. Question is he considered an employee? So that he can be
counted as a member of the appropriate bargaining unit? Yes. The Labor Code explicitly
states that this is an employee. An employee is one who has been terminated but who is
questioned in the same proper proceeding. (Art. 219 (m) of the labor code).

CERTIFICATION ELECTION

 Bakit ba importante ito? Because that is the last step before you bargain with the
employer. You have to prove your majority status.

 So now, what do you do? You will have to file for the certification election.

 What is a certification election? A certification election is a procedure to determine who

is the majority union.

 Do you represent the majority union of the rank and file employees of the appropriate
bargaining unit? If yes, then you will be certified as the exclusive bargaining agent, then
you can bargain with your employer and he cannot refuse.

 Unless you can prove yourself as the majority union, I (the employer) have no obligation
to deal with you kasi hindi naman ako pwede mag bargain sa minority.

 Now, how do we determine if you are the majority union? There are 3 ways in the Labor
Code:

 The general rule is certification election is the best way to determine if the rank and file
employees want this particular union as the majority union to represent them in collective
bargaining. Remember, you want to bargain with me to have better terms and conditions
of work. Hindi lang minimum standards. Gusto niyo mas marami. Gusto niyo tig-isa kayo
may kotse. But you have to prove yourself to be the majority union.

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  What are the other ways? Other ways are:

(1.) Consent election;

(2.) Direct certification; and

(3.) SEBA (sole and exclusive bargaining agent)

 What is a consent election? The presumption is there are 2 contending unions and both
agree to have elections. In short, the Government does not have to step in and decide. As
between the 2 unions they have already decided to hold elections. They just decide which
is the best. The Med-Arbiter does not even have to decide and they just put in the minutes
in the constantia these two unions have consented to an election. But the mechanics of
the election are still the same.

 Direct certification - ito yung pinagbabawal na. In this instance, the employer before was
allowed to determine who the majority union is. The Supreme Court said you cannot allow
the employer to abrogate himself the right to determine who the majority union is.
Because that is ultimately an employee's right. That could be abused by the management.
If I have the right, I probably might choose a company union which is prohibited. Because
at that instance that union would be looking after the interest of the management rather
than the employees whose interest it is supposed to protect.

 Sole and exclusive bargaining agent / voluntary recognition - that exercise is not very
successful because no employer wanted to make use of that particular mode. In which
case the Government now, during a proceeding will now say to the Med-Arbiter o let’s just
do a certification election. This is merely the process of determining through secret ballot
who is the SEBA of the appropriate bargaining unit for purposes of collective bargaining.
There must not be any other union existing in the appropriate bargaining unit. Example
pangalan ng union PANALP Union, wala nang ibang union. So pupunta na siya sa DOLE
sasabihan niya na i-recognize niyo na kami because we’re the only legitimate labor
organization of the rank and file. That is SEBA.

 Who has the power to recognize? It is the Regional Director provided that the
union has complied with all the requisites which are enumerated in your slides.

INTER-UNION CONTROVERSIES

 Inter-Union Controversies. Ito yung dalawang union na naglalaban. Usually yan it’s either
cancellation of registration or sino yung majority union certification election.

 Let’s make it COVID school. We are unorganized, meaning there is no existing CBA.
Bakit? Hindi pa tayo nagbabargain diba. Hindi lang union niyo. May isa pang

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 union. Your union is called “Panalo” Union and the other union is called “Asa Pa”
Union. In this particular scenario, no existing CBA, new union. Sino ang pwede
magfile ng petition for certification election? Any of them. Unahan kayo. Either
Panalo Union or Asa Pa Union. When? Anytime dahil wala pang CBA, there is no
freedom period to talk about.

 Panalo Union files a petition to declare itself as SEBA. Will that SEBA procedure be
allowed in this case? No. Dalawa ang union assuming both are registered. Since
they are both legitimate labor organizations existing in the same appropriate
bargaining unit of the rank and file SEBA cannot be made. Hindi pwede
magdeclare. Hindi nga siya sole eh. Now what will happen? That Regional Director
will refer the same for the certification election.

 Same scenario, nag file ng petition for certification election and Panalo Union.
How many signatures should be given? Kelangan ba? No. There is no requirement
to prove that there is at least 25% of the appropriate bargaining unit.

 Second situation says there is a CBA executed between Panalo Union and COVID
Cafe. You were able to negotiate for better terms and conditions and have higher
minimum wages now. Take a look at the terms: “This CBA executed by and
between COVID Cafe and Panalo Union shall be effective for the following terms:

a. January 1, 2015 - December 31, 2018

b. The representation term from January 1, 2015 - December 31, 2020.”

 When is the freedom period here? Where do you count the freedom period?

 What is the freedom period? Freedom period is the 60 day period prior to the expiration
of the representation issue of the CBA. Which is yung 5 year period (in the example). 60
days prior to December 31, 2020. Assuming umabot tayo sa freedom period, November 1
- December 31, so you file the certificate of election at any time between the 2 periods.
From December 31 then work back to November 2. Anything outside those two, outside
the Freedom period na yan.

 Question, Panalo Union wins. Who files for a certificate of election within that period?
Kayo ba? Of course not. You will not file, your majority status will continue for as long as
it is not challenged. Who files during the freedom period? The challenging union. In this
case, dapat Asa Pa union or kung meron pang ibang union na na-create or register in
between those 5 years.

 Kailangan ba ngayon ipakita ng Asa Pa union yung consent signature requirement? Yes.
25% not 20%. Remember, all of the registered unions are presumed to have 20%
membership at the very least. If you want to challenge the majority union you have to
show that you have more. That’s why you need 25%.

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 Asa pa Union now files the petition for certification election during the freedom period on
November 15. Is that within the freedom period? Yes. Will that particular proceeding be
allowed? Yes, as long as they comply with the 25% requirement. Assuming Asa pa Union
complies with all requirements, Panalo Union President Roy wants to disqualify Asa Pa
Union. So he files a petition questioning the union registration of Asa Pa Union on the
ground that it has confidential and supervisory employees within its membership. If you
were the Med-Arbiter, how will you rule on the motion? Will you disqualify Asa Pa union?
No. deny the motion. Reasons:

 This is not the right venue. If at all, the legal personality of Asa Pa union cannot
be questioned collaterally in a petition for certification election. They have to file
a separate certificate for cancellation and get that decision before the
certification election.

 The fact that a registered union has both supervisory and confidential employees is no
longer a ground for cancellation of union registration. Bakit? Those supervisory members
and confidential employees will just be dropped (automatically) from the membership roll.
And the petition for certification election will just continue.

 Kung ikaw ang majority union, gusto mo i-disqualify yung Asa Pa union, ano ang grounds
na pwede mo i-raise? So that you will remain a majority union. You have 5 grounds:

(1.) If you are able to show that Asa Pa union is not registered. Differentiate that with
union registration being cancelled hindi (sila pareho), ito talaga wala siyang certificate of
registration.

(2.) They filed it within the freedom period but were not able to show the 25% requirement.

(3.) Failure to file within the freedom period. It is called the contract bar rule. You can only
file a petition for certification election within the 60 day period prior to the expiration of
the representation term of the collective bargaining agreement.

(4.) The one year bar rule. You cannot file any petition for certification election within 1
year from the finality of the certification results. In the previous certification walang
nanalo, ang nanalo no union, within a 1 year period you have to respect the majority of
the employees of the appropriate bargaining unit. Ayaw nila kahit sino. Bakit? Remember
sa kahit anong election, you have the right to choose and not to choose in which case you
say “no union”. A default vote is no union.

(5.) Deadlock bar. Even if this was the freedom period, if there is already an impending
strike then any petition for certification for election will not be entertained.

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 The Certification Election determines who won (as Exclusive Bargaining Agent of the
appropriate bargaining unit). How do you determine who won? COVID Cafe and rank and
file. There are 2 requirements:

(1.) You have to show that there is a majority of the rank and file employees who actually
voted in that election. So let’s say 100 kayo at least 51 will have the election proper.

(2.) The union which gets a majority of the valid votes cast in that election wins as majority
union which is called the Exclusive Bargaining Agent.

 May non-union members vote in a certification election? Yes, for as long as you are a rank
and file member.

 You do not have to be a member to choose a union who will bargain for you.

 Paulo, a dismissed barista, filed a case questioning the validity of the termination. He goes
to the certification election. Can he vote? Yes, he can be allowed for as long as he can
show that he filed an illegal termination case.

 Paano kung sinabi ng HR dinismiss namin yan ah. Sabi niya oh nagfile ako ng kaso, asan
proof mo? What if he did not have the file to prove that he filed a case? Can he be allowed
to vote? His vote will be segregated from the rest. He will be considered a qualified voter
but the vote will be segregated.

 100 members in the appropriate bargaining unit. Doon sa 100, hindi lahat pumunta.
Lumabas yung votes Union A - 40 votes, Union B - 5 votes, and No union - 2 votes. Was
there a valid election? What is the total? 47 votes. There was no valid election because
they lacked the first majority vote. E ilan lahat bumoto? Kulang sila ng apat. Irerepeat
lang yung election.

 The union that garners the majority of the valid votes cast is now called the Exclusive
Bargaining Agent.

 100 members in the appropriate bargaining unit. Union A got 40 votes, Union B got 5
votes, and No Union got 2 votes, plus 10 illegal votes. Was there a valid election? There
was 57 votes. There was valid election. Who won? Majority of 47 is 28. 40 (Union A) is a
clear majority in this instance.

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RUN-OFF ELECTIONS

 Requirements for conduct of Run-off elections:

(1.) (There are) Three or more choices;

(2.) First majority rule is complied with. There was a valid election. Majority of members
casted their votes.

(3.) However, the second majority rule was not complied with. Not one of the 3 choices
received a majority of the valid votes cast. nobody won.

(4.) The total number of votes for all contending unions is equal to at least 50% of the
number of votes cast.

(5.) Run-off elections should only be between the 2 unions with the highest number of
votes.

-TRANSCRIPT ENDS –

The online lecture may be accessed through this link:

https://www.facebook.com/103457951213625/videos/2536737769761409/

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