Professional Documents
Culture Documents
Labor Relations
S A I N T LO U I S UN I V E R S I T Y
College of Law
March 2009
EDITION
SAINT LOUIS UNIVERSITY
College of Law
BAR OPERATIONS COMMITTEE
(Team 2009)
ARIZ CAWILAN
Vice Chair
Section Chiefs
Adviser
W
LABOR LAW REVIEWER
Labor Relations
Labor Relations
ARTICLE 211
DECLARATION OF POLICY
1. to promote and emphasize the primacy of free collective bargaining and negotiations,
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including voluntary arbitration, mediation and conciliation, as modes of settling labor
or industrial disputes;
3. to foster the free and voluntary organization of a strong and united labor movement;
DEFINITIONS
1. Any employee and shall not be limited to the employee of any particular
employer;
2. Any individual:
Ø whose work had ceased as a consequence of or in connection with any
current labor dispute; and
Ø who had not obtained any substantially equivalent and regular
employment.
EMPLOYERS are defined as, any person who employs the services of another, and one
for whom the employees work and who pays their wages and salaries. They may also be any
person directly or indirectly acting in the interest of an employer (SEE D. O. No. 40-03).
I
JURISDICTION AND
PROCEDURE IN LABOR DISPUTES
LABOR DISPUTE
• Any matter or controversy concerning the terms and conditions of employment or the
association or representation of person in negotiating, fixing, maintaining, changing and
arranging the terms and conditions of employment, regardless or whether the disputants
stand in proximate relation of employer and employee.
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Nature: Dispute arises from employer-employee relationship, although disputants
need not be proximately “employee” or “employer” of the other.
• Compensation
• Benefits
• Working conditions
II
NATIONAL LABOR RELATIONS COMMISSION
CREATION AND COMPOSITION
COMPOSITION
§ EIGHT members shall be chosen only from among the nominees of the
workers and employers organization respectively.
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§ The CHAIRMAN and SEVEN REMAINING MEMBERS shall come from
the public sector with the latter to be chosen preferably among the
incumbent labor arbiters.
QUALIFICATIONS
• Labor Arbiters
APPOINTMENT
TERM OF OFFICE
The MEMBERS OF THE COMMISSION and the L ABOR ARBITERS shall hold office
during good behavior until they reach the age of sixty-five (65) years unless sooner removed for
cause provided by law or become incapacitated to discharge the duties of their functions.
JURISDICTION OF
LABOR ARBITERS
Additional Cases:
• Money claims (arising from ER-EE relationship) or by virtue of any law or contract,
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involving Filipino workers for overseas deployment, including claims for actual,
moral, exemplary and other forms of damages.
• Wage distortion disputes in unorganized establishments.
• Enforcement of compromise agreements when there is non-compliance by any of
the parties.
• Other cases as may be provided by law.
The original and exclusive jurisdiction of labor arbiters under ARTICLE 217 (c) for
money claims is limited only to those arising from statutes or contracts other than a CBA. The
labor arbiter has no jurisdiction over intra-corporate disputes.
ARTICLE 263 (g) empowers DOLE Secretary or the President of the Republic to
assume jurisdiction or refer the case to the NLRC if the labor dispute or impending strike or
lockout involves an industry indispensable to national interest.
III
JURISDICTION OF THE
NATIONAL LABOR RELATIONS COMMISSION
ORIGINAL JURISDICTION
APPELLATE JURISDICTION
• Cases decided by the regional offices of the DOLE in the exercise of its adjudicatory
function pursuant to Art. 129 of the LC; and
• Cases decided by the LAs pursuant to Art. 217(b) of the LC and see 10 of RA 8042
(overseas contract workers).
• Rule-making Power
It has the power to promulgate rules and regulations governing:
F The hearing and disposition of cases before it and its regional branches;
F The hearing and disposition of cases pertaining to its internal functions;
F Those as may be necessary to carry out the purposes of the Code.
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• Power to Investigate and Hear Disputes within its Jurisdiction
F Conduct investigation for the determination of a question, matter or
controversy within its jurisdiction; and
F Proceed to hear and determine the disputes in the manner laid down under
paragraph (c) of Article 218.
F Conduct ocular inspection (Article 219).
• Contempt Power
F Hold any person in contempt directly or indirectly; and
ISSUANCE OF INJUNCTION OR
TEMPORARY RESTRAINING ORDER (TRO)
This power is reserved specifically to the NLRC however, the [1990] Rules of
Procedure of the NLRC, provides that ancillary power of issuing preliminary injunction or TRO
may be exercised by the Labor Arbiters only as an incident to the cases pending before
them in order to protect the rights of the parties during the pendency of the cases by excluding
labor disputes involving strikes or lockout.
Section 5 Rule XVI, Book V of the Implementing Rules of the Code, also allows Med-
Arbiters to do the same.
The power of the NLRC to enjoin or restrain the commission of any or all prohibited or
unlawful acts as provided in Article 218 of the Labor Code, can only be exercised in a labor
dispute.
REQUISITES:
1. The complainant must allege that a substantial and irreparable injury to his or
her property is inevitable, unless a TRO is issued without notice;
2. An Affidavit of Merit or a testimony under oath is filed; and
3. An Undertaking with Adequate Security or Bond is first filed, the amount of
which to be fixed by the Commission sufficient to recompense those enjoined for
any loss, expense, or damage, and to include all other reasonable costs, caused by
the improvident or erroneous issuance of such order or injunction.
IV
JURISDICTION OF THE
BUREAU OF LABOR RELATIONS
The BUREAU OF L ABOR RELATIONS (BLR) and the L ABOR RELATIONS D IVISION in the
regional offices of the DOLE shall have original and exclusive authority to act, at their own
initiative or upon request of either or both parties, on the following:
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NOTE: The Bureau of Labor Relations no longer handles all labor management
disputes.
Inter-union dispute: any conflict between and among legitimate labor unions involving
representation questions for purposes of collective bargaining or to any other conflict
or dispute between legitimate labor unions.
Intra-union dispute: any conflict between and among union members, including
grievances arising from any violation of the rights and condition of membership,
violation or disagreement over any provision of the union’s constitution and by-laws, or
dispute arising from chartering or affiliation of union.
Notes:
• Concurrent jurisdiction of BLR and Labor Relations Division in each Regional office
of DOLE.
• Denial of application for registration in the regional office is appealable within 10
days to the BLR.
• Execution of the order of the Regional director shall be stayed pending appeal (IR:
Book 5, Rule XIV; Sec 8), in the exercise of its appellate jurisdiction.
• The decision of the Bureau shall be final and no longer subject of appeal (Sec. 7,
Ibid).
• The decision of the Bureau in its exercise of its original jurisdiction is appealable
to the Secretary of Labor and Employment (SOLE).
V
JURISDICTION OF
VOLUNTARY ARBITRATORS
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• Unresolved grievance arising from interpretation or implementation of a collective
bargaining agreement and those arising from the interpretation or enforcement of
company or personnel policies.
• Upon agreement of the parties, shall also hear and decide all other labor disputes
including unfair labor practices and bargaining deadlocks.
VI
JURISDICTION OF
VOLUNTARY ARBITRATORS
APPEAL
Decision or orders of the L ABOR ARBITER may be appealed to the NLRC by any
or both parties within 10 calendar days from receipt of such decisions or orders.
The 10 or the five (5) day period should be counted not from the date of receipt
of the decision/order by a party but from the date of receipt by his lawyer. This is
mandatory but allows some exceptions.
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interpretation. The posting of real property bond was allowed as it sufficiently protects
the interests of the other party should the latter prevail. Its RATIONALE is that the
importance of deciding cases is based on substantive merit and not on strict
compliance of technical rules.
In cases of perfected appeals, the NLRC limits itself to reviewing issues which
were raised on appeal; the rest shall be final and executory.
VII
MOTION FOR RECONSIDERATION
It is a pre-condition for pursuing any further or subsequent remedy; otherwise, the said
order, resolution or decision shall become final and executory after 10 calendar days from
receipt thereof.
VIII
PETITION FOR CERTIORARI
(Under Rule 65, Rules of Court)
A party may avail of the CIVIL ACTION FOR CERTIORARI, where the tribunal, board, or
office exercising juridical functions:
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It may be filed not later than 60 days from notice of the judgment, order, or resolution.
Both SC and CA have jurisdiction over the action; however, in line with the doctrine of
minatory of warts, the petition should initially be presented to the lower of the two courts, that
is, the CA.
IX
EXECUTION OF JUDGMENTS
A WRIT OF EXECUTION may be issued by the following officials for the final decisions,
orders or awards promulgated by them:
• Secretary of DOLE;
• NLRC;
• Any regional director;
• Any labor arbiter;
• Any med-arbiter;
• The voluntary arbitrator; or
• The panel of arbitrators.
It may be issued motu proprio or on motion of any interested party within five (5) years
from the date, it becomes final and executory.
REINSTATEMENT
The posting of a bond by the employer shall not stay the execution of
reinstatement.
VENUE
For purpose of venue, workplace shall be understood as the place or locality where the
employee is regularly assigned when the cause of action arose.
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Work place shall include the place where the employee is supposed to report back after
a temporary detail, assignment or travel.
Where two (2) or more regional arbitration branches have jurisdiction over the
workplace, the branch that shall first acquire jurisdiction over the case shall exclude the
others.
When improper venue is not objected before or at the time of filing of position papers,
such question shall be deemed waived.
X
COMPROMISE AGREEMENTS
(Article 227, Labor Code)
• Under Art. 227, any compromise settlement voluntarily entered into by the
parties with the assistance of the Bureau or the Regional Office of the DOLE
shall be FINAL and BINDING upon the parties.
• The NLRC or any courts shall not assume jurisdiction over issues involved in
the compromise agreements EXCEPT:
§ In non-compliance; or
§ If there is prima facie evidence that the settlement was obtained through
fraud, misrepresentation or coercion.
FORMAL REQUIREMENTS
VALIDITY OF COMPROMISE
AGREEMENTS AND QUITCLAIMS
GENERAL RULE: The law looks with disfavor upon quitclaims end releases by EE’s who
are pressured into signing them by unscrupulous employers.
EXTENSION: Not all waivers and quitclaims are invalid as against public policy. If the
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agreement was:
XI
TERMINATION DISPUTES
§ Security of tenure applies not only to actual dismissals but also applies if there is
constructive dismissal.
CLASSIFICATION OF EMPLOYEES
• Regular
• Project
• Seasonal
• Casual
• Fixed-period or Contractual
• Probationary
Regular Employees
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broken, with respect to the activity in which he is employed.
Project Employees
Seasonal Employees
Casual Employees
• If the casual employee has worked for at least one year – whether
continuously or broken – he becomes a regular employee.
Fixed-Period Employees
• Employee whose employment will last only for a definite period as agreed
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by the parties.
• REQUISITES:
• The employer and the employee dealt with each other on more
or less equal terms with no moral dominance being exercised by
the employee (Brent School Ruling).
Probationary Employees
Exceptions:
Extensions
Extension should be done before the lapse of the six (6)-month period.
It may be terminated:
DUE PROCESS
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• Opportunity to be heard by means of a formal investigation.
• Subsequent formal and written notice of termination.
• Plus other requisites as may be provided by company handbooks in
addition to the first three.
Article 277 applies only to termination and not to disciplinary actions unless
provided by the company.
VALIDITY OF DISMISSAL
SUBSTANTIAL Just or
VALIDITY = Authorized
Cause
PROCEDURAL VALIDITY
• NOTICE REQUIREMENT
F The first notice must apprise the employee of the particular acts or
omissions for which his dismissal is sought; and
F The employer should give both the worker and the DOLE written
notices 30 days prior to termination.
• HEARING
F The employer shall afford the worker ample opportunity to be heard and to
defend himself with his representatives.
F Second notice informing the employee of his dismissal must be given after
due hearing.
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PREVENTIVE SUSPENSION
NOTE: After the 30-day period, the employer may extend preventive
suspension if he pays the wages and other benefits due to the
suspended worker.
1. PRE-WENPHIL DOCTRINE
J/A ILLEGAL
+ (-PDP) =
CAUSE DISMISSAL
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4. AGABON DOCTRINE ( NOV 17, 2004)
In the case of Serrano, the SC held that violation of the notice requirement
cannot be considered as denial of due process resulting in the nullity of the employee’s
dismissal for the following reasons:
(2) Notice and hearing are required under the Due Process Clause
before the power of organized society is brought to bear upon the
individual.
• BURDEN OF PROOF
• DEGREE OF PROOF
CONSTRUCTIVE DISMISSAL
“Floating Status” beyond six months under Article 286 may also amount to
constructive dismissal.
VALID DISMISSAL
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Art. 282: Termination by Employer (SGF-CO)
MANAGEMENT RIGHTS
a. Right to Manage
ü For the advancement of the employers interest not for the purpose
of defeating or circumventing the rights of the employees under
special laws or valid agreements
b. Right to Discipline
- It is allowed PROVIDED:
i. There is no demotion in rank; and
ii. No diminution of salary, benefits, and other privileges.
- The employees’ security of tenure dies not give him vested right over the
position held.
REQUIREMENT:
i. Not unreasonable or inconvenient;
d. Right to Demote
e. Right to Dismiss
- It is a measure of self-preservation;
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- For it to be valid:
1. SERIOUS MISCONDUCT
- It is an improper or wrong conduct;
- Transgression of some established or definite rule of conduct, a forbidden
act, a dereliction of duty, willful in character and implies wrongful intent
and not mere error in judgment;
- It must be serious and in connection with the employee’s work.
**The factors attending the circumstance and company policies must also be
considered.
2. WILLFUL DISOBEDIENCE
Requisites:
**Valid Transfers
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of his failure to observe proper diligence in his work, of his indolence,
habitual tardiness and absences do not constitute dismissal.
**Invalid Transfers
TRANSFER PROMOTION
b) It must be habitual.
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ground of incompetency merely because he failed to employ the
highest degree of skill and care known in the trade UNLESS he is
specially contracted by reason thereof.
**Gross Negligence
**Abandonment
REQUISITES:
REQUISITES
a. fraud must be committed against the employer or
representative;
b. must be committed in connection with the employee’s work.
LOSS OF CONFIDENCE
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***Proof Required
GUIDELINES:
***Immediate Family:
a. Spouse;
b. Ascendants;
c. Descendants;
d. Legitimate natural or adopted brothers and sisters;
e. Relative by affinity in same degrees; and
f. Those by consanguinity within the fourth civil degree;
- If acquittal from the offense does not negate the existence of a ground for
loss of trust and confidence, with more reason should conviction fortify the
mistrust.
6. ANALOGOUS CAUSES
- The cause must be due to the voluntary and/or willful act or omission of
the employee.
AUTHORIZED CAUSES
ART.283: an employer may terminate the employment of the employee due to the
following: (IRRC)
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Other Authorized Causes
• To terminate the employment under Art. 283, the employer must serve a
written notice at least one (1) month before intended termination to:
- Employee, and
- Department of Labor and Employment.
- It must not be abused and should not be made in the pretext for easing out
laborers because of their union activities.
REQUIREMENTS:
2. REDUNDANCY
- It exists where the services of an employee are in excess of what is
reasonably demanded by the actual requirements of the enterprise.
- A position is superfluous.
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REASONS:
- It is of no legal moment that the financial troubles of the company were not
of private respondent’s making.
- The determination of the existence of redundancy is not subject to the
review of the Labor Arbiter or the NLRC, EXCEPT if it is exercises
arbitrarily and maliciously.
3. RETRENCHMENT
- This is one of the economic grounds to dismiss employees and is resorted
to by an employer primarily to avoid or minimize business losses.
- The employer bears the burden to prove his allegation of economic or
business losses.
- The termination of employment of an employee arising from retrenchment
to prevent losses shall entitle the employee affected thereby to separation
pay equivalent to one (1) month pay or at least one-half (½) of a month pay
for every year of service whichever is higher.
- Retrenchment is recognized as a preventive and curative measure.
CAUSES
- Lack of work; where the continuance of the work of the employee is
patently inimical to the interest of the employer.
- Business recession.
- Fire.
- Conservatorship contemplates not the liquidation of the company
involved but the conservation of company assets and business during the
period of stress.
BASIC REQUISITES:
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1. The losses expected should be substantial and not merely de minimis in
extent.
2. The substantial loss appended must be reasonably imminent, that is,
perceived objectively and in good faith by the employer. There must be a
certain degree of urgency for retren chment.
3. It must be reasonably necessary and effectively prevent the expected
losses. The employer should have taken other measures prior to or parallel
to retrenchment to forestall losses.
4. The alleged losses if already realized and the expected imminent losses
sought to be forestalled must be proven by sufficient and convincing
evidence.
• QUITCLAIMS: Even if there is the signing of quitclaims it will not by itself bar
them from enjoining the complaint. Quitclaims executed by laborers are
commonly frowned upon as contrary to public policy and ineffective to bar
claims.
Redundancy Retrenchment
Linked with losses
Results from the fact that
As to the position has became A cost cutting measure made
cause superfluous, in excess of immediately necessary by
what is needed. business reduction or
reverses.
As to
Separation pay is higher. Separation pay is lower.
effect
REQUIREMENTS:
a. Service of a written notice to the employees and to the DOLE at
least one month before the intended date thereof;
- If the business is not losing but its owner, for reasons of his own wants to
get out of business, he in good faith can do so anytime. No law forces
anyone to go into business; no law compels anybody to stay in business.
But the employees must be paid their severance pay.
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ARTICLE 284: D ISEASE AS GROUND FOR TERMINATION
Conditions:
• If there be finding that the termination was illegal, the terminated employee
may either be:
a. Reinstated to his former position without loss of seniority rights; OR
b. Recovery of back wages.
NOTE: These twin remedies are distinct and separate. Though the grant of
reinstatement commonly carries with it the award of back wages, the
inappropriateness or non-availability of the one does not carry with it
the inappropriateness or non-availability of the other.
• MORAL DAMAGES are recoverable in dismissal cases only where the dismissal
was attended by bad faith, fraud or constituted as an act oppressive to labor, or was
done in a manner contrary to morals, good customs or public policy (Garcia, 234
SCRA 632).
Grounds: (SICO)
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RESIGNATION
• Voluntary Resignation
Requirements:
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F If the ground for quitting is SICO, the burden is on
the employee because the employer cannot be
required to prove SICO; otherwise, he would
incriminate himself.
“FLOATING STATUS”
NOTE: If the floating status lasts for more than six months, the employee may
be considered to have been illegally dismissed from the service.
ILLEGAL DISMISSAL
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ü There is absence of control.
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The circumstances for a job contracting to be legitimate must
concur in order for the employer to avail of this defense.
Instrumentality Rule
Principle of Absorption
• Contract-Laborers Defense
• Complainant is a PIECE-RATER
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If for a particular project, there is no tenure
EXCEPT : (1) if continuously re-hired; (2) member of the
work pool.
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There must be no reasonable causal connection between
the particular activity performed by the complainant and
the usual business or trade of the respondent.
• Prescription
• Improper Venue
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ILLEGAL DISMISSAL
NOTE: Take note that damages and attorney’s fees are not mentioned.
Therefore, the rule to apply is: what is NOT alleged, prayed for, and
proven CANNOT BE AWARDED. On the other hand, even if not
expressly prayed for, back wages and reinstatement can be ordered
because their basis is the law.
The two forms of relief are distinct and separate, one from the other. Though the
grant of reinstatement commonly carries with it an award of back wages, the
inappropriateness or non-availability of one does not carry with it the inappropriateness or
non-availability of the other. There may be reinstatement without back wages, or back wages
without reinstatement. But either requires a finding of illegal dismissal.
REINSTATEMENT
If the position previously occupied has already been filled up, the proper
remedy would be to reinstate the dismissal employee to a SUBSTANTIALLY
EQUIVALENT POSITION.
However, the fact that the dismissal employee has already been replaced does
not affect his right to reinstatement. The other workers hired are deemed to
have accepted their employment as replacements with the knowledge the same
is subject to the consequences of the labor dispute.
• It will not serve the prudent purpose as when SUPERVENING facts have
transpired which make execution unjust or inequitable.
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• There is a resultant STRAINED RELATIONS or irretrievable estrangements
between the employer and the employee where the employee concerned
occupies a position of trust and confidence and it is likely that if reinstated
an atmosphere of antipathy and antagonism may be generated as to
adversely affect the efficiency and productivity of the employee.
REINSTATEMENT IMMEDIATELY
EXECUTORY
Under Art. 223, the decision of the Labor Arbiter reinstating a dismissed
employee is immediately executory even while the case is brought up on
appeal.
NOTE: Under Art. 224 (a), a Writ of Execution is needed for a judgment of
reinstatement by the NLRC after it becomes final and executory.
CIRCUMSTANCES THAT
BAR REINSTATEMENT
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If the reinstatement is no longer feasible, the proper remedy is
separation pay.
• Strained Relations
Because of:
F Business reverses.
F Acts of the State.
• Economic Reverses
• Abolition of Position
• Prescription
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“WITHOUT LOSS OF
SENIORITY RIGHTS”
Seniority
Length of service of employees in a specified unit for the purposes of
determining the order, in which workers will be laid-off, promoted, transferred,
or rehired.
BACK WAGES
Back wages are of a form of relief that restores the income of the
employee that was lost due to the unlawful dismissal.
Nature
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Back wages awarded to an illegally dismissed employee
should not, as a general rule, be diminished or reduced by the
earnings derived by him elsewhere during the period of his
illegal dismissal. The full back wages without deductions serve
as part of the price or penalty the employer must pay for
illegally dismissing the employee.
• Business Reverses
Cessation or closures of business due to economic reverses
DOES NOT entitle a separated employee payment of back
wages, but only separation pay.
• Detention in Prison
Back Wages of
Irregular Workers
The wages earned by other irregular workers doing the same kind of
work, who have not been dismissed, would be the basis in determining the back
wages of dismissed irregular workers.
SEPARATION PAY
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Separation pay is payable to an employee whose services are validly
terminated for authorized causes (Article 283 and 284).
EXCEPTION:
AMOUNT TO BE AWARDED
• Disease
One (1) month salary or half (½) a month pay for every year of service,
whichever is greater.
If it is proven that 10% of the capital investment has been impaired, the
employer should be exempt for the payment of separation pay.
The grant of separation pay and at the same time upholding the validity
of QUITCLAIMS and RELEASE are not at all incongruous.
DAMAGES
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oppressive to labor, or was done in a manner contrary to morals, good customs,
or public policy.
INDEMNITY FOR
HOUSE HELPERS
ATTORNEY’S FEES
FINANCIAL ASSISTANCE
(Justice Outside the Law)
QUITCLAIMS
NOTE: Not all waivers and quitclaims are invalid as against public policy. If the
agreement was voluntarily entered into and represents a reasonable
settlement, it is binding on the parties. It is only when there is clear
© 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |
proof that the waiver was wangled [of fixed] from an unsuspecting or
gullible person, or the terms are unconscionable that the law will step
in to annul it.
PRESCRIPTION
XII
RIGHT TO SELF ORGANIZATION
AND LABOR ORGANIZATION
LEGAL BASES
• This right shall include the right to form, join, or assist labor organizations for the
purposes of :
§ Collective bargaining;
§ To engage in lawful concerted activities for the same purpose;
§ Mutual aid and protection.
COVERAGE
Commercial
Industrial
Agricultural
} Enterprises
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Charitable
Religious Institutions
Educational
Medical
• The following are also included in the coverage of the right to self-
organization (AIRWIS):
F Ambulant workers
F Intermittent workers
F Rural workers
F Workers with no definite employers
F Itinerant workers
F Self-employed
• Supervisory Employees
Supervisory employees shall not be eligible for membership in a labor
union of the rank-and-file employees but may form, join or assist
separate labor unions of their own
• Government Employees
• New Employees
• Security Guards
© 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |
RIGHT OF EMPLOYEES IN THE
PUBLIC SERVICE (Art. 244, LCP)
Employees of GOCC’s established under the corporation code shall have the right to
organize and to bargain collectively.
NOTE:
• “Manner of Creation Test”
If employees of private corporation acquired by GOCC with original
charter, they can organize for purposes of collective bargaining.
Exclusions (HEMACEN)
Managerial employees are not eligible to join, assist or form any labor
organization.
• First-line Managers
Direct operating employees only; they do not supervise other
managers. They are also called SUPERVISORS.
• Middle Managers
Direct the activities of other managers and sometimes those of
operating employees.
• Top Managers
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Responsible for the overall management of the organization.
NOTE: Look into the functions they perform before determining whether the
managerial employee is excluded or not.
CONFIDENTIAL EMPLOYEES
RULES
LABOR ORGANIZATIONS
Definition
Any union or association of employees which exists in whole or in part for the
propose of collective bargaining or of dealing with employers concerning terms and
conditions of employment.
Governmental Regulations
A. Registration Requirements
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bargaining unit.
© 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |
F Principal office of the applicant;
F Minutes of organizational meetings;
F Constitution and By-laws;
Rationale of Registration
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that it is clothed with legal personality to claim the representational and
bargaining rights.
Effect of Registration
• Deliberative Right
F Determination by secret ballot of all major policies
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and By-laws or General Membership Resolution;
F True and correct accounting by treasurer: (1) at least once a
year within 30 days after the close of its fiscal year; (2) at
such other times as may be required by a resolution of the
majority of the members; (3) upon vacating his office;
F Accounts (Books of) shall be open to inspection during
office hours;
F Reports on all financial transactions, full and detailed;
F Records on all income showing the sources;
F Receipts of all payments signed by the collector;
F Records of all expenditures showing payee and purpose;
F No arbitrary, excessive initiation fee, fine;
F No collection of fees unless authorized by Constitution and
By-laws;
F No additional compensation for officers;
F No special assessments unless authorized by General
Resolution;
F No check off unless authorized by individual written
resolution;
F Use of funds only if authorized by Constitution and By-laws
or general resolution;
• Right to Information
NOTE: The Regional Director of DOLE, not the labor arbiter has
jurisdiction over check-off disputes
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Check Offs and Assessments
- Under Article 277 (a), it recognizes the right of the union
to collect union dues.
- The amount of union dues should be reasonable and Article
241 prohibits the imposition of excessive or arbitrary fees.
Requirements of Payment:
a. regular;
b. periodic;
c. uniform.
AFFILIATION
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affiliation union is the incumbent bargaining agent.
DISAFFILIATION
• EFFECTS OF DISAFFILIATION:
1. If the union is not independently registered, it is not
entitled to the rights and privileges granted to
legitimate labor organizations.
2. The federation is entitled to receive the dues from
the employer only as long as the union is affiliated
with the federation. Without said affiliation, the
employer has no link with the federation.
3. The CBA continues to bind the members of the new
or disaffiliated and independent union up to the
CBA’s expiration date. (SUBSTITUTIONARY
DOCTRINE)
• REVOCATION OF CHARTER:
- A federation, national union or worker’s association
may revoke the charter issued to a local or chapter.
1. Disloyalty;
2. such other grounds as may be specified in
the constitution and by-laws of the
federation, national union or worker’s
association.
Effect: the revocation will serve to divest the
local/chapter of its legal personality upon receipt of
the notice of the Bureau, UNLESS in the meantime
the local/chapter has acquired independent
registration.
MERGER OR CONSOLIDATION
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labor organization’s existence and the continued
existence of the absorbing organization.
Notice of Merger/Consolidation
WHERE TO FILE: the notice shall be filed to
and recorded by the Regional Office that
issued the certificate of registration or
certificate of creation of chartered local being
merged or consolidated.
Requirements:
1. the minutes of merger or consolidation
convention or general membership meetings
of all the consolidating or merging labor
organizations with the list of their respective
members who approved the same;
2. amended constitution and by-laws and the
minutes of its ratification.
CHANGE OF NAME
OTHER REQUIREMENTS:
1. approval or ratification of change of name; and
2. amended constitution an by laws.
© 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |
NOTE: The failure to submit the documents within thirty (30)
days from adoption or ratification, as previously
required by Art. 239, is NO LONGER a ground for
cancellation but shall subject the erring officers or
members to suspension, expulsion from membership or
any appropriate penalty. (SEE FURTHER RA 9481)
WHERE TO FILE:
VOLUNTARY CANCELLATION
OF REGISTRATION
REQUIREMENTS:
a. at least two-thirds (2/3) of members vote is attained,
in a meeting called for voluntary cancellation of
registration, to dissolve the organization; and
b. an application to cancel registration is submitted by
the board of the organization and attested by the
president.
APPEAL
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the BLR itself, may be appealed to the SOLE. (Abbot
Laboratories vs. Abbot Laboratories Employees Union, et. al.,
January 26, 2000).
XIII
UNION REPRESENTATION
Factors to Consider
- The determination of what constitutes a proper bargaining unit lies
primarily with the Bureau;
- No individual factor is given by law decisive weight:
a. whether it will best assure to all employees the exercise of their
collective bargaining rights;
b. the bargaining unit is one which must be comprised of constituents
enjoying a community of interest;
c. desires of employees; and
d. geographical location.
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GLOBE DOCTRINE : It provides the desires of the employees are relevant to the
determination of the appropriate bargaining unit. The relevancy of the
wishes of the employees concerning their inclusion or exclusion from a
proposed bargaining unit is inherent in the basic right to self-organization.
A. VOLUNTARY RECOGNITION
WHERE to file: It must be filed to the Regional Office who issued the
recognized labor union’s certificate of registration or certificate
of creation of a chartered local.
REQUIREMENTS
© 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |
ACTION on the Notice
EFFECT
From the time of recording, the union shall enjoy the rights,
privileges and obligations of an exclusive bargaining representative
B. CERTIFICATION ELECTION
• UNORGANIZED Establishment
F Any LLO.
• ORGANIZED Establishment
F NO CBA, any time outside the 12-month bar,
negotiation bar, and deadlock bar.
• UNORGANIZED Establishment
F Anytime
WHERE to File:
© 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |
Regional Office, which has over the principal office of the
employer or where the bargaining unit is prin cipally situated
FORM of Petition
CONTENTS of Petition
• When filed by an LLO
F Name of petitioner, its address, and affiliation if
appropriate, the date of its registration and number
of its certificate of registration if petitioner is a
federation, national union or independent union, or
the date it was reported to the Department if it is a
local/chapter.
© 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |
F Other relevant facts.
PROCEDURE
I. PRELIMINARY CONFERENCE
o The first preliminary conference shall be scheduled
within ten (10) days from the receipt of the petition.
o Within three (3) days from receipt: service of the notice
of preliminary conference.
Contents of Decision
a. Name of the employer or the establishment.
© 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |
b. Description of the bargaining unit.
c. Statement that none of the grounds for dismissal
exists.
d. Names of the contending labor unions, which shall
appears as follows: petitioner union/s in the order
in which their petitions were filed, forced
intervener, and no union.
e. Directive upon the employer and the contending
labor union to submit within ten (10) days from
the receipt of the order, the certified list of
employees in the bargaining unit, or the payrolls
covering the members of the bargaining unit for
the last three months prior to issuance of the
order.
Grounds for Denial [Bars to Certification Election]
a. Petitioner is not listed in the Department’s registry
of legitimate labor unions or that its legal
personality has been revoked or cancelled with
finality.
b. The petition was filed before or after the freedom
period of a duly registered collective bargaining
agreement.
c. The petition was filed within one (1) year from the
entry of voluntary recognition or valid
certification, consent or run-off elections and no
appeal is pending.
d. A duly certified union has commenced and
sustained negotiations with the employer or there
exists a bargaining deadlock, which has been
submitted to conciliation and mediation or has
become the subject of a valid notice of strike or
lockout.
e. In organized establishment, failure to submit
twenty-five percent (25%) support requirement.
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II. CONDUCT OF CERTIFICATION ELECTION
A. PRE-ELECTION CONFERENCE
POSTING of Notices
• At least 10 days prior;
• Two (2) conspicuous places in the company
premises;
• Date and time of election;
• Description of bargaining units and the list of
Eligible voters and challenged voters;
• Names of all contending unions.
B. ELECTION PROPER
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the company UNLESS otherwise agreed upon by the
parties. It shall be held within company premises UNLESS
circumstances otherwise require, as determined by the
election officer.
ON-THE-SPOT Questions
CHALLENGE of Votes
PROTEST
C. CANVASSING OF VOTES
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certify as winner the union which obtained a majority of
the valid votes cast under any of the following conditions:
REQUIRED VOTE
The union that obtains a majority of the valid votes cast shall be
certified as the sole and exclusive bargaining agent of all the workers
in the appropriate bargaining unit.
FAILURE OF ELECTION
RATIONALE
A LLO is entitled to all the rights or privileges granted by law
until its registration is cancelled or revoked with finality.
© 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |
RUN-OFF ELECTION
Requisites
WHO Participates
CONSENT ELECTION
CONSENT CERTIFICATION
Election Election
It is aimed at
It is an agreed one, its
determining the sole
purpose being merely to
and exclusive
determine the issue of
bargaining agent of all
majority representation
the employees in the
of all the workers in the
ABU for the purpose of
ABU
collective bargaining
© 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |
not preclude the workers from exercising their right to
choose their sole and exclusive bargaining representative
after the expiration of the 60-day freedom period.
Form and contents shall be the same as that of a petition for CE.
• UNORGANIZED Establishment
F Any LLO.
WHEN to file
• ORGANIZED Establishment
F During the freedom period of the CBA.
• UNORGANIZED Establishment
F Anytime prior to the finality of the decision
calling for CE.
XIV
DUTY TO BARGAIN
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Collective Bargaining is the performance of the mutual obligation of the employer and
the sole bargaining representative to meet promptly, expeditiously, and in good faith, agree on
Wages, Hours of Work and Other terms and conditions of employment (WHO).
• Legislative Phase
Negotiation and perfection of CBA.
• Executive Phase
CBA administration.
• Judicial Phase
Application and interpretation.
~ to execute a CBA.
F LIMITATION
~ It does not compel any party:
1. to make an agreement, or
2. to make concession.
~ to respect and allow the old CBA to have force and effect, if a new CBA
is forged.
NOTE: Within 60 days before the CBA expires (freedom period), either party may
notify the other in writing, that it desires to modify or terminate the
agreement.
PROCEDURES
• Jurisdictional Preconditions
F Existence of certified EBR;
F Possession of majority representative status;
F Proof of majority representative status;
F Demand of Bargain collectively.
© 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |
• Procedure Proper (Art. 250)
F Written notice upon the other party with statement of proposal.
F The other party must reply not later than 10 days.
F Conference not later than 10 days from notice, in case of differences.
F NCMB, if differences is not settled.
F Prohibition against commission of acts that impede or disrupt proceedings.
F Amicable settlement of disputes by NCMB.
NOTE: ARTICLE 250 applies in the absence of the parties’ own private collective
bargaining procedure.
MANDATORY SUBJECTS
F Wages and Hours of Work
F Other terms and conditions
F Other modes of compensation
F Work shifts
F Vacation and holidays
F Bonuses
F Pensions and retirement plans
© 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |
F Seniority
F Transfers
F Lay-offs
F Workload
F Work rules and regulations
F Rent of company houses
F Union security agreements
NON-MANDATORY SUBJECTS
DEADLOCK OR IMPASSE
A bargaining impasse over an issue exists where good faith bargaining on the part of
the parties has failed to resolve the issue and there are no definite plans for further efforts to
break the deadlocks.
Deadlock does not mean the end of bargaining. It signals rather the need to continue
the bargaining with the assistance of a third party as conciliator or arbitrator whose first aim is
to get the parties back to the negotiating table and help them create a win-win solution.
STRIKE OR LOCKOUT IN
CASE OF DEADLOCK
• Surface Bargaining
F A sophisticated pretense in the form of apparent bargaining.
F It does not satisfy the statutory duty to bargain.
• Boulwarism
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NOTE: Good faith or bad faith is an inference to be drawn from the facts and in largely
a matter for the NLRB’s expertise.
XV
COLLECTIVE BARGAINING
AGREEMENT (CBA)
CONCEPT OF CBA
CBA refers to a contract executed upon request of either the employees or the EBR of
the employees incorporating the agreement reached after negotiations with respect to wages,
hours of work and all other terms, and conditions of employment, including proposals for
adjusting grievances or questions under such agreement.
CBA is also a means of ensuring workers are entitled to participate in decision-making.
CONTENTS OF CBA
TERMS OF CBA
• Political Life (Representation aspect: identity and majority status of the union that
negotiated the CBA as EBR of the bargaining unit concerned): Five (5) Years.
• Automatic Retroaction: Any agreement entered within six (6) months from the
date of expiry of the term shall retroact to the date immediately following such
© 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |
date.
RATIFICATION
The agreement negotiated by the employees bargaining agent sho uld be ratified or
approved by the majority of all workers in the majority of all workers in the bargaining unit,
not just the members of the bargaining union.
Ratification AND its procedure are mandatory.
Ratification of the CBA by the employees in the bargaining unit is not needed when the
CBA is a product of an arbitral award by appropriate government authority or by a voluntary
arbitrator.
REGISTRATION
CBA, having been properly ratified, should be registered with the DOLE Regional
Office that has jurisdiction over the establishment
XVI
UNFAIR LABOR PRACTICES
CONCEPT
UNFAIR L ABOR PRACTICES are:
© 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |
including their right to bargain collectively and otherwise deal with each
other in an atmosphere of freedom and mutual respect;
(4) hindrance the promotion of healthy and stable labor management relations
and mutual respect [unstable labor management relations] (ARTICLE 247).
• Criminal Aspect
F No criminal prosecution may be instituted without a final judgment first
obtained in the administrative proceeding finding that a ULP was committed.
F Prescriptive Period: One (1) year from accrual of ULP.
F During the pendency of the administrative proceeding, the running of the
prescriptive period for the criminal aspect of ULP is interrupted.
F The final judgment in the administrative proceedings shall not be binding in
the criminal prosecution nor considered as an evidence of guilt, it is a mere
proof of compliance with procedural requirements.
AVAILABLE RELIEFS
• Preventive
Through a cease and desist order to stop a party from engaging further in ULP acts.
• Remedial
Consisting of affirmative relief (reinstatement, damages, and attorney’s fees).
• Penal
Fine or imprisonment, or both.
© 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |
• Act done is expressly defined in the Code as ULP (Arts. 248 and 249).
XVII
UNFAIR LABOR PRACTICES
OF EMPLOYERS (Article 248)
GENERAL RULE
It is the prerogative of the company to promote, transfer or even demote its employees
to other position when the interest of the company demands it.
EXCEPTION
F When there is a clear interference by the employer of the employee’s right to self-
organization.
F The grant of profit sharing benefits to non-union members is not ULP; it is within
the prerogative of the management.
F FORCED vacation leave without pay in view of the economic crisis is not ULP.
F An employer does not commit an ULP by discharging employees who engage in a
slowdown. SLOWDOWN occurs when employees continue working on their own
terms and rejecting the standards desired by the employer.
To interfere with, restrain, or coerce employees in their exercise of the right to self-
organization.
Forms of Interference
F Persistent interrogation of employees to elicit information as to what had
happened at union meetings and the identity of the active union
employees.
F Outright and unconcealed intimidation.
F Espionage and surveillance or “spying on employees”.
F Economic inducements.
F A violation results from an employer’s announcement of benefits prior to a
representation election, where it is intended to induced the employee to
vote against the union.
F The conferral of employee benefits for the employees to vote against the
union while a representation election is pending.
© 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |
basis of their implications, but against the background of and in conjunction with
collateral circumstances.
Doctrine of Successor-in-Interest
or Successor Employer
The new employer (being the successor-in-interest), who succeeds a previous
employer with an existing CBA and who is a buyer in good faith, has no liability to the
employees in continuing employment and the collective bargaining agreement
because these contracts are in personam.
General Rule
Labor contractors are “in personam,” hence, doctrine of successor
employer, in cases of closure and sale to another, is not applicable.
Exceptions
F If there is a written agreement between the employer and the
employees to the effect that successor employer shall be held liable for
previous employer’s liabilities;
F Piercing the corporate veil.
© 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |
to it or its organizers or supporters.
Forms
F Initiation of company union idea.
F Outright formation by the employer or his representatives.
F Employee formation on outright demand or influence by the employer.
F Managerially motivated formation by employees.
F Financial support to the union.
F Employer defrays the union expenses or pays the attorney who drafted the CBL
of the union.
F Employers encouragement and assistance.
F Immediately granting the union exclusive recognition as a bargaining agent
without determining whether the union represents the majority of employees.
F Supervisory assistance.
F Soliciting membership, permitting union activities during working time, or
coercing employees to join the union by threats of dismissal or demotion.
This is an act of discrimination concerning wages, hours of work and other terms,
and conditions of employment in order to encourage or discourage membership in any
labor organization.
Discrimination by Blacklisting
A BLACKLIST is a list of persons marked out for special avoidance,
antagonism, or enmity on the part of those who prepared the list, or those among
whom it is intended to circulate.
Test of Discrimination
It is necessary that the underlying reason for the discharge be established.
Constructive Discharge
Where an employer prohibits employees from exercising their rights, on pain
of discharge, and the employee quits as a result of the prohibition, a constructive
discharge occurs, witch may be remedied in a ULP proceeding.
Valid Discrimination
Where Management and Union enters into a CBA containing “union security
clause”.
Union Security
“Union security” is a generic term which is applied to and comprehends “closed
shop”, “union shop”, “maintenance of membership” or any other form of agreement
which imposes upon employees the obligation to acquire or retain union membership
as a condition affecting employment.
F Closed Shop
Only union members can be hired and workers must remain
as union members to retain employment.
© 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |
F Union Shop
Non-members may be hired, but to retain employment must
become union members after a certain period.
© 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |
employee.
Indirect Discrimination
It shall be ULP for an employer to dismiss or discriminate against an employee
for having filed charges or for having given or about to give testimony under said Act.
© 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |
• EIGHTH ULP : “PAID NEGOTIATION”
To pay negotiation or attorney’s fees to the union or its officers or agents as a part
of the settlement of any issue in collective bargaining or in any other dispute.
XVIII
STRIKES AND LOCKOUTS
WORKERS shall have the right to engage in concerted activities for purposes of
collective bargaining or for their mutual benefit and protection.
LIMITATIONS
STRIKE
It means any temporary stoppage of work by the concerted action of employees as a
result of an industrial or labor dispute.
Characteristics of Strike
• The existence of a dispute between the parties and the utilization by labor
of the weapon of concerted refusal to work as a means of persuading, or
coercing compliance with the working men ’s demands.
• The contention advanced by the workers that although work ceases, the
employment relation is deemed to continue albeit in a state of belligerent
suspension.
• There is work stoppage, which stoppage is temporary.
• The work stoppage is done through concerted action of the employees.
• The striking group is a LLO and in case of bargaining deadlock, is the
employees’ sole bargaining representative.
Kinds of Strike
• As to Extent
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F General Strike
Extends over a whole community, province, state, or
country.
F Sit-Down Strike
Occurs when a group of employees or other interested in
obtaining a certain objective in a particular business forcibly take
over possession of the property of such business, establish
themselves within the plant, stop its production and refuse access to
the owners or the others desiring to work.
F Slowdown
Willful reduction in the rate of work by a group of
employees for the purpose of restricting the output of the employer
F Partial/Quickie Strike
Takes the form of intermittent, unannounced work
stoppage, including slowdowns, unauthorized extension of rest
periods and walkouts for portions of a shift or for entire shifts.
F Secondary Strike
F Sympathetic Strike
One in which the striking employees have no demands or
grievances of their own, but strike for the purpose of directly or
indirectly aiding others, without direct relation to the advancement
of the interest of the strikers.
© 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |
F Economic Strike
This is a strike held to force wage or concessions from the
employer, which he is not required by law to grant.
F ULP Strike
Called against the unfair labor practices of the employer,
usually for making him desist from further committing such
practice.
A strike that is provoked or prolonged by a refusal to bargain
or a discriminatory discharge or any sort of ULP by the employer.
Protection of Strike
© 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |
or collective bargaining
• STATUTORY PROHIBITION
Government employees have the right to organize, but they do not have
the right to strike. A strike held by them would be an illegal strike that violates
a legal prohibition.
No strike or lockout may be declared on grounds involving inter-union
and intra-union disputes or an issue brought to voluntary or compulsory
arbitration.
• PROCEDURAL REQUIREMENTS
F Notice of Strike
Notice of strike (or lockout), with the required contents, should
be filed with the DOLE, specifically the regional branch of NCMB, with
a copy furnished to employer or the union, as the case may be.
UNION BUSTING
© 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |
the union CBL;
~ The existence of the union is threatened.
AFTER the strike vote is taken, seven (7) days must pass before
the union can actually commence the strike. A strike held within the
seven (7) – day waiting period is plainly illegal.
COMPUTATION
Seven days are added to the 15-day or 30-day period.
• UNLAWFUL PURPOSE
The law does not expressly ban strikers except when enjoined against
by the court; but if a striker is declared for a trivial, unjust, or unreasonable
purpose, or if it is carried out through unlawful means, the law will not
sanction it and the court will declare it illegal, with the adverse consequences
to the strikers.
• PENALTY
Article 289, of the Revised Penal Code provides: “The penalty of arresto
mayor and a fine not exceeding 300 pesos shall be imposed upon any person
who, for the purpose of organizing, maintaining or preventing coalitions of
© 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |
capital or labor, strike of laborers or lockouts of employers shall employ
violence or threats in such a degree as to compel or force the laborers or
exercise of their industry or work, if the act shall not constitute a more serious
offense in accordance with the provision of the Code”.
NOTE: EVEN if the purpose of a strike is valid, the strike may be held invalid
where the means employed are illegal.
• INJUNCTION
Article 218 (e) empowers the NLRC to enjoin or restrain any actual or
threatened commission of any or all prohibited or unlawful acts to require the
performance of a particular act in any labor dispute, or in cases involving
“national interest” as provided in Article 263 (g).
Automatic Injunction
Injunction in “national interest” cases is expressly allowed, in fact,
an injunction may be issued automatically, that is even if none of the
parties asks for it.
Assumption of Jurisdiction
and Certification to the NLRC
When, in his opinion there exists a labor dispute causing or likely to
cause a strike or lockout in an industry indispensable to the national
interest, the Secretary of Labor may assume jurisdictio n over the dispute
and decide it or certify the same to the NLRC for compulsory arbitration.
Striking workers must cease and/or desist from all acts that tend to,
or undermine the authority of the Secretary of Labor, once the assumption
and/or certification order is issued. They cannot ignore return-to-work
orders, citing ULP on the pert of the company, to justify their actions.
LOCKOUT
Means the temporary refusal of any employer to furnish work because of an industrial
or labor dispute.
© 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |
• ULP Act of a Union
Requisites
• Notice of intention to declare a lockout has been filed with the DOLE;
• At least 30 days has elapsed since the filing of notice before lockout is declared;
• An impasse had resulted in the negotiations; and
• Lockout is not discriminatory.
NOTE: Lockout is valid where, in the course of a labor dispute, it is undertaken as
a defensive weapon, or in pursuance of the employer’s interest.
Unlawful Lockout
Where it is declared in order to defeat organizational and bargaining right
employees.
PROHIBITED ACTIVITIES
maintain peace and order, protect life and property, and/or enforce the law and
legal order.
• No person engaged in picketing shall commit any act of violence, coercion or
intimidation or obstruct the free ingress or egress from the employer’s premises for
lawful purposes, or obstruct public through fares.
Any person violating the above provisions shall be punished by a fine of not less than
P1,000.00 nor more than P10,000.00 and/or imprisonment for not less than 3 months. Nor
more than 3 years, or both such fine and imprisonment, at the discretion of the court.
Prosecution under Article 272 of the LCP shall preclude prosecution for the same act
under the RRC, and vice versa.
© 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |
CONSEQUENCES OF STRIKE AND LOCKOUT
The law grants the employer the option of declaring a union officer who
participated in an illegal strike as having lost his employment.
Exception:
F The strike is legal;
F There is an unconditional offer to return to work; and
In an ULP Strike
In a LOCKOUT
© 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |
During the pendency of an economic strike, the employer may hire replacements on a
permanent basis and is not bound to discharge such permanent replacement in the event that
strikers resume to work.
While replacement may also be hired by the employer to take the places left vacant by
employees engaged in an ULP strike, such replacements are not permanent and their
employer is under the duty to dismiss them as soon as the strikers request reinstatement in
their previous positions.
The DOLE shall conduct a referendum by secret balloting on the improved offer of the
employer on or before the 30th day of strike. When at least a majority of the union members
vote to accept the improved offer, the striking workers shall immediately return to work and
the employer shall thereupon readmit them upon the signing of the agreement.
In cases of lockout, the DOLE shall also conduct a referendum by secret balloting on
the reduced offer of the union on or before the 30th day of the lockout. When at least a
majority of the board of directors or trustees or the partners holding the controlling interests in
the case of a partnership vote to accept the reduced offer, the workers shall immediately
return to work and the employer shall thereupon readmit them upon the signing of the
agreement.
PICKETING
The presence of striking workers or their union brothers who pace back and forth
before the place of business of an employer considered “unfair to organize labor” in the hope of
being able to persuade peacefully other workers not to work in the establishment, and
customers not do business there.
Limitations
Vandalism and acts of a less terroristic nature that are designed to cause
physical discomfort to the employer’s customers are also unlawful.
© 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |
OTHER CONCERTED ACTIVITIES
• Collective Letter
Constitutes an informal action participated in by at least two employees for
“mutual aid or protection” in regard to their interests.
• Publicity
Members of a labor union may make known the facts of a labor dispute by
sign, handbill, or newspaper advertisement as a legitimate means of economic
coercion.
• Boycott
An attempt, by arousing a fear of loss, to coerce others, against their will to
withhold from one denominated “unfriendly to labor” their beneficial business
intercourse.
Kinds of Boycott
F Primary Boycott
Applied directly and alone to the offending person by
withdrawing from him all business relations on the part of the
organization that initiated the boycott.
F Secondary Boycott
A combination not merely to refrain from dealing with a person,
or to advise or by peaceable means persuade his customers to refrain,
but to exercise coercive pressure upon such customers, actual or
prospective, in order to cause them to withhold or withdraw patronage
from him through fear of loss or damage to themselves should they deal
with him.
• Slowdown
© 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |
ARREST AND DETENTION
EXCEPT on the grounds of national security and public peace, or in case of commission
of crime, no union members or union organizers may be arrested or detained for union
activities with previous consultation with the Secretary of Labor.
XIX
FOREIGN INVOLVEMENT
IN TRADE UNION ACTIVITIES
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 contracts between Philippine Labor Unions and recognized international labor centers
EXCEPTIONS
• Aliens working in the country with valid permits issued by the DOLE may
exercise the right to self-organization and join or assist labor organizations
of their own choosing for purposes of collective bargaining.
• Said aliens are nationals of a country which grants the same or similar
rights to Filipino Workers.
No foreign individual, organization or entity may give any donations, grants or other
forms of assistance, in cash or in kind, directly or indirectly, to any labor organization, group
of workers or any auxiliary thereof, such as cooperatives, credit unions and institutions
NOTE: This prohibition shall equally apply to foreign donations grants or other forms of
assistance, in cash or in kind, given directly or indirectly to any employer or employer’s
organization to support any activity or activities affecting trade unions
The Secretary of Labor shall promulgate rules and regulations to regulate and
control the giving and receiving of such donations, grants, or other forms of assistance,
including the mandatory reporting of amounts of donations or grants, the specific
recipients thereof, the projects or activities proposed to be supported and their
duration
© 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |
• Organization, formation and administration of labor organizations;
• Negotiation and administration of CBA;
• All forms of concerted union activities;
• Organizing, managing, or assisting union conventions, meeting rallies,
referenda, teach – ins, seminars, conferences and institutes;
• Any form of participation or involvement in representation proceedings,
representation proceeding, representation elections, consent elections,
union elections; and
• Other activities or actions analogous to the foregoing.