LABOR STANDARDS

What is the distinction between the Constitution and Labor Law?

The people promulgated the Constitution

The law is promulgated by 3 entities: people, legislation, local legislative bodies

What are the statutes for labor? PD442 and its amendments, more than 60 amendments, most
dynamic, changes very often, Nov 1, 1947-2017

All laws respond to particular situation

1. Lack of living wage

2. Inhuman working condition

3. Lack of equal opportunities between men and women

4. Lack of social security while at work and at old age

5. Unreasonable termination of employment

6. Excessive hours of work

7. Unreasonable deductions from employee salaries

8. Abuse and exploitation of OFWs by foreigners

9. Child labor

10. Maltreatment of employee by employers

11. Lack of machinery to handle employment grievances

12. Undue discrimination in hiring / promotion

Law – rights and obligation – of employee and employers

Situation: lack of social justice

Social Legislation: creating laws for the marginalized sector

Social legislation are NOT class legislations, it is serving the good of all, since oppression leads to
revolt, that disturbs peace and economy suffers, investors leave, results in social unrest.

Social legislation is a tool to achieve social justice, grants rights to the underprivileged, to achive
equalization of everyone in the society. Common good is the justification of social justice.

Laws create rights and obligations that benefit the society.

Equalization = no oppression.

Study the Constitutional Guarantees.

CIVIL CODE: Article 1700. The relations between capital and labor are not merely contractual. They
are so impressed with public interest that labor contracts must yield to the common good. Therefore,
such contracts are subject to the special laws on labor unions, collective bargaining, strikes and
lockouts, closed shop, wages, working conditions, hours of labor and similar subjects.

Employment contracts are impressed with public interest, it affects the public.
Joint & Several = Solidarily

Civil Code is suppletory to the Labor Code

9 guarantees:

1. Protection to Labor

2. Promote full employment

3. Ensure equal work opportunities regardless of sex, race, creed

4. Regulate relations between workers-employers

5. Right to self-organization

6. Right to collective bargaining

7. Right to security of tenure

8. Right to just and human conditions

9. Construction in favor of labor

PASEI VS DRILON

What is the basis of DOLE Sec in banning? Art 59 Labor Code

Because it is a department order, it is a rule

Police power requirement: serve the common good

Basis to protect the OFW: because of the abuse of women, eg. flor contemplacion

There are only reports of violence against women, reported and verified

Curtailment of guaranteed right cannot be permanent, only respond to the issue and will only
continue as far as it exists

Issue should not be confined to the case

Congress may pass labor laws without mandate of Constitution because congress may
exercise police power, police power is an inherent power.

PAL VS SANTOS

ISSUE: WN the failure of the company to resolve a complaint can be resolved against the
company despite the fact that the manager… (kulang po, sino po may complete issue?)

One-sided relation between labor and capital.

 The sympathy is with the laboring classes:

1. Constitution imposes such sympathy

2. One-sided relationship

Labor law seek to achieve balance, wherein no one is stronger, equal footing, employee is as
strong as employer

Social Justice is achieved by:

1. Giving them rights through the law = enacting laws that provide rights to uphold the
welfare of employees.

2. Interpretation in favor of labor = interpret unclear provisions in favor of laborer

Congress may pass law to give rights to employer because the power of Congress is
plenary, subject matter is everything.

PHIL EDUC VS NLU

Acquittal on reasonable doubt is not a declaration that the act was not committed, only based on
insufficient evidence. It doesn’t require employers to keep employees they do not trust.

PAL VS NLRC

Unlike inherent rights, rights can only be granted exercised if provided by law.

The employee cannot sleep on his rights.

SORIANO VS OFFSHORE

Employment contracts of OFW cannot be altered. For the protection of the employee.

Prohibition to protect the workingman shall not be interpreted literally if committing such
prohibition does not violate the purpose of the prohibition.

PAMBUSCO

8 hour labor law. The employee may not work beyond the 8 hours. Must be paid overtime
pay for work in excess of the 8 hours.

In pari delicto = both parties are guilty of violating the law.

He who comes to court must come with clean hands.

Protection to labor cannot be extended if the lack of protection is caused by labor itself.

CONSTRUCTION IN FAVOR OR LABOR

UFE VS VIVAR

Holiday pay are percentages of the daily rate.

Ambiguity results to construction in favor of labor.

Ambiguity: payment by mistake

Employer continued to use the divisor, despite declaration that it is null and void, employer
continued to use it
FEM’S LODGING VS MURILLO

Ambiguity: when is delay reasonable?

Late submission would be admitted based on the reason of the delay. The delay should be
reasonable and should not be too long, should not affect substantive rights.

VILLAVERT VS ECC

Ambiguity: the cause of the disease is not clear

The cause of the diseases is not clear, therefore it remains unclear if working conditions
caused the illness. There is opportunity for the heirs to establish if the work has connection to
the development of the illness.

JIMENEZ CASE

Ambiguity: if the cause of the disease was caused by smoking

There is no conclusive proof that that the cancer of the lungs is caused by smoking, therefore
it is construed in favor of labor.

VILLAVERT AND JIMENEZ COMPARISON

SIMILAR: Both are based on reasonable work connection, for as long as cause of ailment is
not established

DIFFERENT: Villavert case has no claim on the cause of the disease, Jimenez case, there are
claims although not conclusive.

PURPOSE OF THE LAW

SONGCO CASE

Law involved: the law that defines what wages mean

ISSUE: Are commissions to be included in the salary

Labor Code: ART 97 (f) "Wage" paid to any employee shall mean the remuneration or
earnings, however designated, capable of being expressed in terms of money, whether fixed
or ascertained on a time, task, piece, or commission basis, or other method of calculating the
same, which is payable by an employer to an employee under a written or unwritten contract
of employment for work done or to be done, or for services rendered or to be rendered and
includes the fair and reasonable value, as determined by the Secretary of Labor and
Employment, of board, lodging, or other facilities customarily furnished by the employer to
the employee. "Fair and reasonable value" shall not include any profit to the employer, or to
any person affiliated with the employer.

However paid / designated, therefore any compensation received will be considered. If

compensation received includes commissions, it shall be included in the computation.

OCAMPO CASE

Law involved: The law that grants employee separation pay.

ISSUE: WN entitles to separation pay

Project employees are not entitled to separation pay but they are entitled to backwages
corresponding to the unexpired portion of their contract for not having completed such.
EASTERN SHIPPING

Employee was an OFW per implied acts of the employer

MAGALONA CASE

LAW: the law that grants compensation to employees who are employed, but illness must be
related.

Presumption that employment caused the illness, based on the ground that the employee was
healthy when he entered work

The burden lies in the employer to prove the nature of employment did not cause EE’s
ailment.

There is no need to prove the causal connection.

RULE MAKING AUTHORITY

US VS MOLINA

Secretary of Labor may issue rules and regulations that implement the Labor Code.

Notarized oath, application as police officer. Molina made na oath that he was never indicted,
tried orindicted for disturbing public peace.

If a regulation is aligned with the Law, Secretary of Labor has force

PASEI VS TORRES

Valid Regulation: Valid DOLE and POEA circulars must not be ultra ___ within his authority

Publication of regulations – public (followed), must be done to bind the public

Internal operation of agency need not published for it to be binding and effective

Consti right – right to due process

ER-EE RELATIONSHIP

ASIA STEEL

The creation of the relationship should not be adjusdged strictly in accordance with technical
legal rules but rather accdg to the actualities and realities of business practice

Agent with express authority specifies employee relations

VILLUGA

Power to hire does not necessarily make a person an employer

Control over the employee is the power to control the result or output of employees work and
determine what is to be done and how to do it
HIJOS DE ESCANO

Escano = principal

Pier 8 = contractor

OTHER CASE NOTES:

Sevilla VS CA

Agency Coupled With Interest- Not Revocable At Will

As developer of the permanent improvement on the Property, BDAI has an interest in the Property
that is the subject matter of the agency, assuming such agency exists. An agency coupled with
interest is not revocable at the will of principal. In Sevilla vs. CA, 160 SCRA 171, it was said:

“The reason is that it is one coupled with an interest, the agency having been created for the mutual
interest of the agent and the principal. It appears that Lina Sevilla is a bona fide travel agent herself,
and as such, she had acquired an interest in the business entrusted to her. Moreover, she had
assumed a personal obligation for the operation thereof, holding herself solidarily liable for the
payment of rentals. She continued the business, using her own name, after Tourist World had
stopped further operations. Her interest, obviously, is not limited to the commissions she earned as
a result of her business transactions, but one that extends to the very subject matter of the power of
management delegated to her. It is an agency that cannot be revoked at the pleasure of the
principal. (Bacaling vs. Muya, 430 Phil. 531 (2002); Wheelers Club International, Inc. vs. Bonifacio,
Jr., G.R. No. 139540, June 29, 2005; Lim vs. Saban, G.R. No. 163720, December 11, 2004).

Iloilo Chinese School VS Fabrigar

It is pretended that the deceased was not an employee of the school but of the Chinese Chamber of
Commerce which should be the one responsible for the compensation of the deceased. On one hand,
according to the Commission, there is substantial proof to the effect that Fabrigar was employed by
and rendered service for the petitioner and was an employee within the purview of the Workmen's
Compensation Law. On the other hand, the most important test of employer-employee relation is the
power to control the employee's conduct. The records disclose that the person in charge (encargado)
of the respondent school supervised the deceased in his work and had control over the manner he
performed the same. It is finally contended that petitioner is an institution devoted solely for
learning and is not an industry within the meaning of the Workmen's Compensation Law.
Consequently, it is argued, it is exempt from the scope of the same law. Considering that this factual
question has not been properly put in issue before the Commission, it may not now be entertained in
this appeal for the first time

Jimenez VS NLRC

As a general rule, one who pleads payment has the burden of proving it. Even where the plaintiff
must allege non-payment, the general rule is that the burden rests on the defendant to prove
payment, rather than on the plaintiff to prove non-payment. The debtor has the burden of showing
with legal certainty that the obligation has been discharged by payment

When the existence of a debt is fully established by the evidence contained in the record, the burden
of proving that it has been extinguished by payment devolves upon the debtor who offers such a
defense to the claim of the creditor.Where the debtor introduces some evidence of payment, the
burden of going forward with the evidence - as distinct from the general burden of proof - shifts to
the creditor, who is then under a duty of producing some evidence to show non-payment.

The positive testimony of a creditor may be sufficient of itself to show non-payment, even when met
by indefinite testimony of the debtor. Similarly, the testimony of the debtor may also be sufficient to
show payment, but, where his testimony is contradicted by the other party or by a disinterested
witness, the issue may be determined against the debtor since he has the burden of proof. The
testimony of the debtor creating merely an inference of payment will not be regarded as conclusive
on that issue. Hence, for failure to present evidence to prove payment, petitioners defaulted in their
defense and in effect admitted the allegations of private respondents.

We have consistently ruled that in determining the existence of an employer-employee relationship,

the elements that are generally considered are the following: (1) the selection and engagement of
the employee; (2) the payment of wages; (3) the power of dismissal; and (4) the power to control
the employees conduct, with the control test assuming primacy in the overall consideration.

In the case at bar, the aforementioned elements are not present. The agreement was between
petitioner JJs Trucking and respondent Pedro Juanatas. The hiring of a helper was discretionary on
the part of Pedro. Under their contract, should he employ a helper, he would be responsible for the
latters compensation. With or without a helper, respondent Pedro Juanatas was entitled to the same
percentage of commission. Respondent Fredelito Juanatas was hired by his father, Pedro, and the
compensation he received was paid by his father out of the latters commission. Further, Fredelito
was not subject to the control and supervision of and dismissal by petitioners but of and by his
father.

In the first place, Article 281 of the Labor Code does not refer to the basic factors that must underlie
every existing employer-employee relationship, the absence of any of which will negate such
existence. It refers instead to the qualifications of (A)n employee who is allowed to work after a
probationary period and who, as a consequence, shall be considered a regular employee. Secondly,
the test in determining the existence of an employee-employer relationship is not the necessity
and/or desirability of ones functions in relation to an employers business, but (1) the selection and
engagement of the employee; (2) the payment of wages; (3) the power of dismissal; and (4) the
power to control the employees conduct. The latter is the most important element

MAM Realty VS NLRC

The power of control, the most important feature of that relationship and, here, a point of
controversy, refers merely to the existence of the power and not to the actual exercise thereof. It is
not essential for the employer to actually supervise the performance of duties of the employee; it is
enough that the former has a right to wield the power. It is hard to accede to the contention of
petitioners that private respondent should be considered totally free from such control merely
because the work could equally and easily be done either by Mercado or by the subdivision's security
guard. Not without any significance is that private respondent's employment with MAM has been
registered by petitioners with the Social Security System.

We agree with petitioners, however, that the NLRC erred in holding Centeno jointly and severally
liable with MAM. A corporation, being a juridical entity, may act only through its directors, officers
and employees. Obligations incurred by them, acting as such corporate agents, are not theirs but
the direct accountabilities of the corporation they represent. True, solidary liabilities may at times
be incurred but only when exceptional circumstances warrant such as, generally, in the following
cases:

1.When directors and trustees or, in appropriate cases, the officers of a corporation -

vote for or assent to patently unlawful acts of the corporation;

act in bad faith or with gross negligence in directing the corporate affairs;

are guilty of conflict of interest to the prejudice of the corporation, its stockholders or members, and
other persons.

2.When a director or officer has consented to the issuance of watered stocks or who, having
knowledge thereof, did not forthwith file with the corporate secretary his written objection thereto.

3.When a director, trustee or officer has contractually agreed or stipulated to hold himself personally
and solidarily liable with the Corporation.

4.When a director, trustee or officer is made, by specific provision of law, personally liable for his
corporate action.
In labor cases, for instance, the Court has held corporate directors and officers solidarily liable with
the corporation for the termination of employment of employees done with malice or in bad faith. In
the case at bench, there is nothing substantial on record that can justify, prescinding from the
foregoing, petitioner Centeno's solidary liability with the corporation.

Insular Life vs NLRC

In determining the existence of employer-employee relationship, the following elements are

generally considered, namely: (1) the selection and engagement of the employee; (2) the payment
of wages; (3) the power of dismissal; and (4) the power to control the employees’ conduct —
although the latter is the most important element. It should, however, be obvious that not every
form of control that the hiring party reserves to himself over the conduct of the party hired in
relation to the services rendered may be accorded the effect of establishing an employer-employee
relationship between them in the legal or technical sense of the term.

Rules and regulations governing the conduct of the business are provided for in the Insurance Code
and enforced by the Insurance Commissioner. It is, therefore, usual and expected for an insurance
company to promulgate a set of rules to guide its commission agents in selling its policies that they
may not run afoul of the law and what it requires or prohibits. None of these really invades the
agent’s contractual prerogative to adopt his own selling methods or to sell insurance at his own time
and convenience, hence cannot justifiably be said to establish an employer-employee relationship
between him and the company.

The Court, therefore, rules that under the contract invoked by him, Basiao was not an employee of
the petitioner, but a commission agent, an independent contractor whose claim for unpaid
commissions should have been litigated in an ordinary civil action.

LABOR RELATIONS

1. What is a Labor Dispute?

 Includes any controversy or matter concerning terms and conditions of employment or the
association or representation of persons in negotiating, fixing, maintaining, changing or
arranging the terms and conditions of employment, regardless of whether the disputants stand in
the proximate relation of employer and employee resolution of it required Labor Law.

2. Identify the three types of labor dispute and distinguish one from the other on the
following points of distinction: i)parties, and ii) issues;

 Inter-Union Dispute – union against another union with issue on representation of Union

 Labor Management Dispute - Employer – employee dispute

 Intra-Union Dispute – any conflict between and among labor union members, including
grievances arising from violation of membership, violation of disagreement over any provision of
the union’s constitution and by-laws, or dispute arising from chartering or affiliation of union.
 3. Identify the five general processes of settling dispute and distinguish one from the
other in terms of whether it is a voluntary mode or a compulsory mode according
to the following points of distinction: in availment of the process, ii) intervention of
rd
3 party, and iii) settlement instrument;

Process in rd
Availment of the 3 Party
Settling Settlement Instrument
Process Availment
Dispute
Voluntary
Negotiation Voluntary Voluntary Agreement

Pre-collective Voluntary Voluntary

Voluntary
Bargaining (By the employer itself) Agreement
Compulsory
Collective (The union is the Voluntary
Voluntary
Bargaining exclusive bargaining Agreement
representative)
Compulsory
Mediation and Voluntary or Compulsory rd Voluntary
Conciliation Med-Arbiter There is always a 3 Agreement
Party
Either Compulsory or
Voluntary Compulsory for Compulsory

Voluntary Compulsory if Compulsory Compulsory for Voluntary

Arbitration Interpretation of Arbitrator
Company Policy and Settlement Instrument is
Interpretation and always voluntary
Application of CBA
Compulsory compulsory compulsory Compulsory
Arbitration

In terms of availment of the process:

Voluntary – agreed upon between two parties, if one does not agree, the other party has no choice

Compulsory – once the process is availed by one party, the other party has no choice.

rd
In terms of 3 Party

If they decide to avail of the process, the third party is already included for compulsory

In terms of settlement instrument

Voluntary – always refer to an agreement or a contract

Compulsory – Decision or Arbitral Award

4. Identify the eleven (11) mechanisms/machineries involved in settlement of labor dispute

 Grievance and Procedure – Only Applicable to Private Sectors

 Single Entry Approach (SENA)

 DOLE Regional Director

 DOLE SEC/OD
  Labor Arbiter

 NLRC

 Labor Relation Division

 Bureau of Labor Relation

 Employee Compensation Commission

 POEA/OWWA

 Court of Appeal

 Supreme Court

Regional Director as representative of the Secretary of Labor, if the RD conducted an inspection, as

duty/order (Visitorial Authority of the SecDOLE) can handle case even if more than 5,000.00

Jurisdiction of the Secretary of Labor

 Original Jurisdiction

 It can assume compulsory jurisdiction

o Disputes involving Industry of National Interest

o It can decide based on his discretion

 Appeal from decision of the BLR

o Petition for Certification Election

o Petition for Certification of Federation (National Level)

o Cancellation of Certification of Federation or National Union

 One tasked to implement the Labor Code

NLRC Jurisdiction

 Original Jurisdiction on injunction

 Rules and Regulation for Labor Arbitration Process

o Rules of NLRC Prevails over the Rules of Court

 Certification Election for Local level union

Labor Relation Division

 Med Arbiter

 Sun Function where CBA are collected/Filed

 Petition for Election (Filed)

How to Form CBU

 Will of the employees

 If the interest is so alike so they can be represented by 1 CBU

How to choose an Arbitrator in a Voluntary Arbitration

 Rooster of Voluntary Arbitrator are provided

 Draw Lot/strike the least that they like

Additional Reading: Voluntary Arbitration Procedure in the Philippines

Fee: shouldered by the losing party, who brought the case usually shoulder the fee to be reimburse by
the losing party.

POEA

 Placement and recruitment

CA

 Decision of voluntary Arbitration

 Arbitral Award are not appealable only petition for review

 Decision of NLRC, petition for review and not for appeal

 Decision of NLRC on original jurisdiction can be appealed on CA

 Money claim, Mediation and Conciliation

Rule 45: Supreme Court

Decision of the Court of Appeal under Rule 45

 Appeal by  Certiorari  to the Supreme Court

5. Identify the instrumentality that has compulsory jurisdiction over the following respective
actions after exhausting all applicable plant-level and conciliation/mediation efforts to settle
the dispute:
 i. Application for Union Registration; Appeal thereof.

ii. Petition for Cancellation of Union Registration; Appeal thereof

iii. Petition for Audit of Union Books of Accounts; Appeal thereof

iv. Petition for Certification Election, and Appeal thereof

*** Regional Director if Union is Local

v. Unfair Labor Practice, and Appeal thereof

***Voluntary Arbitrator/Labor Arbiter

vi. Legality/Illegality of Strikes/Lock-outs, and Appeal thereof

***Labor Arbiter

vii. Money claims of a dismissed employee involving the total amount of P5,000.00,
and Appeal thereof

***Regional Director - Money Claim involving employees not more than 5,000.000 and no
claim concerning issues on illegal dismissal

viii. Collective Bargaining Deadlock

***Mediation and Conciliation

ix. Money claims of an OFW, and Appeal thereof

*** POEA if illegal recruitment Labor Arbiter if claims arising from employment

x. Claims under the Employees Compensation, and Appeal thereof

xi. Money claims of a househelper, and Appeal thereof

xii. Claims for Retirement Benefits, and Appeal thereof

xiii. Claims for Separation Pay, and Appeal thereof

***It depends, if Money Claim involving employees not more than 5,000.000 and no claim
concerning issues on illegal dismissal – Regional Director, if not NLRC
6. Identify at least two (2) distinctions between a labor organization and a legitimate
labor organization.

Labor Legitimate Labor Organization

Organization

Any Labor Organization that is duly

registered with DOLE , the term includes a
Any union or
local/chapter directly chartered by a
Association of
legitimate federation or national union
Employees
which has been duly reported to the
Department.

Purpose:
Collective
Bargaining with Purpose: Sole and Exclusive Bargaining
employers Agent (SEBA)
concerning terms
and

7. Identify at least three (3) of the major labor/workers’ rights that come with being a
duly registered labor union;

 Right to represent its member

 Right to be supported by its member

 Right to file petition for certification election

8. An application for registration will be denied if the applicant union is a company

union.

 TRUE

9. Only a legitimate labor organization may file a Petition for Certification Election.

 FALSE.

 An employer may file a petition for Certification Election, when an employer is request to bargain
collectively.

 An employer may file for Certification Election if there is no Labor Organization

10. What does the “right to self-organization” mean in labor law?

 Any employee, whether employed for a definite period or not, shall, beginning on the first day of
his service, be eligible for membership in any labor organization.

 Right to join union cannot be made subject of a CBA Stipulation

11. A labor organization may exercise the rights of a legitimate labor organization even
though it did not file an application for registration with the DOLE-RO/BLR.

 When Labor organization is an affiliate of National Labor Federation, Files it under the name of
the Federation

 Only through a legitimate Federation

12. Identify the different types of employees as classified by statutes and case law
under Book V of the Labor Code and state the reason/purpose for the
classification.

 All employees

All persons employed in commercial, industrial and agricultural enterprises and in religious,
charitable, medical, or educational institutions, whether operating for profit or not, shall have the
right to self-organization and to form, join, or assist labor organizations of their own choosing for
purposes of collective bargaining

 Government employees of corporations created under the Corporation Code

The right to self-organization shall not be denied to government employees. [Sec. 2(5), Art. IX-B,
Constitution]

Employees of government corporations established under the Corporation Code shall have the
right to organize and to bargain collectively with their respective employers All other employees
in the civil service shall have the right to form associations for purposes not contrary to law. [Art.
254]

All government employees can form, join, or assist employees’ organizations of their own
choosing for the furtherance and protection of their interests. They can also form, in conjunction
 with appropriate government authorities, labor-management committees, work councils and
other forms of workers’ participation schemes to achieve the same objectives. [EO 180 §2 (1987)]

 Supervisory Employees

Supervisory employees are those who, in the interest of the employer, effectively recommend such
managerial actions if the exercise of such authority is not merely routinary or clerical in nature
but requires the use of independent judgment. [Art. 219 (m)]

WHO CANNOT FORM, JOIN OR ASSIST LABOR ORGANIZATIONS

(1) Managerial employees

(2) Confidential employees

(3) Non-employees

(4) Member-employee of a cooperative

(5) Employees of international organizations

(6) High-level government employees

(7) Members of the AFP, police officers, policemen, firemen and jail guards

 Aliens with valid working permits

Aliens may exercise the right to self-organization and join or assist labor unions for purposes of
collective bargaining, provided the following requisites are fulfilled:

1. With valid working permits issued by the DOLE; and

2. . They are nationals of a country which grants the same or similar rights to Filipino
workers.

2.i.a. As certified by DFA; OR b.

2.ii.Ratified either ILO Convention No. 8 and ILO Convention No. 98 [Book
V, Rule II, Sec. 2]

 Security personnel

The security guards and other personnel employed by the security service contractor shall have
the right:

1. To form, join, or assist in the formation of a labor organization of their own

choosing for purposes of collective bargaining and

2. To engage in concerned activities which are not contrary to law including the
right to strike. [D.O. No. 14 Series of 2001 Guidelines Governing the
Employment and Working Conditions of Security Guards and Similar
Personnel in the Private Security Industry)
13. A Collective Bargaining Unit is a legitimate labor organization.

 Does not necessarily have to be a legitimate labor organization. As long as they have community
or mutuality of interest in terms of working condition, employment status, duties and
responsibilities, the desire of the workers itself (Globe Machine and Stamping Co., 3 NLRB 294
(1937)). Collective Bargaining History Doctrine and Employment status Doctrine.

14. Certification election is the process by which all employees in the establishment
decide whether or not to be represented for purposes of collective bargaining with
the employer.

 TRUE. All employees in the CBU decide whether or not to be represented for the purpose of
collective bargaining unit.

15. Certification election can take place only if there are at least two legitimate labor
unions in the establishment.

 FALSE, based on number 14. Whether there is only 1 Labor Union, they still decide whether or
not to be represented for the purpose of collective bargaining unit.

16. When a petition for certification election is filed, it is a ministerial duty of the BLR
of the Regional Office to conduct the certification election after ascertaining the
employees who shall belong in the collective bargaining unit sought to be
represented in the collective bargaining agreement with the employer.

 It depends.

UNORGANIZED ESTABLISHMENT: ministerial

ORGANIZED ESTABLISHMENT: rules for filing of PCE

17. An application for certification election filed by a legitimate labor organization will
be denied if an opposition is filed against it on the ground that that the applicant
union is a company union.
  FALSE, legitimacy of labor org. can’t be collaterally attacked. Must file for petition
for cancellation of PCE.

18. Distinguish between an organized and an unorganized establishment.

 UNORGANIZED ESTABLISHMENT

-No EBR

-No vol. recognition from employer

 ORGANIZED ESTABLISHMENT

-BAR rules

-with EBR

19. In the disposition of labor cases, the rules of procedure shall not apply.

 FALSE, rules ofprocedure shall not be strictly applied. Rules of evidence do not
apply, substantial compliance with procedure in labor cases

20. For the purpose of ensuring compliance with labor laws, the NLRC may, at any
time motu proprio conduct an ocular inspection of any establishment employing
workers.

 FALSE. Only if there is a case pending before NLRC. No visitorial authority

21. The decision of the NLRC is appealable to the Court of Appeals.

 It depends: original jurisdiction, appellate jurisdiction – petition review

22. The decision of the Regional Director is appealable to the NLRC.

 It depends: If decision is in exercise of jurisdiction, visitorial authority is with Sec of

Labor appealable
23. Under no case may the decision of the Labor Arbiter be questioned directly to the
Court of Appeals.

 TRUE

24. The decision of the BLR is appealable to the Secretary of Labor.

 It depends: if with original jurisdiction yes, appellate is with RD

25. After internal remedies have been exhausted, a complaint for audit of union funds
must be filed with the Med-Arbiter.

 It depends on what kind of union

BLR or NCMB

26. A complaint for cancellation of union registration must be filed with the DOLE
Regional Director

 It depends.

27. An application for registration of labor union must be filed with the BLR or the
Labor Relations Division of the DOLE Regional Office

 It depends: BLR if federation located in different regions

28. The BLR cannot exercise visitorial and enforcement power over private
establishment.

 FALSE, Sec of Lablr may delegate authority to BLR

29. The BLR and the LRD of the DOLE RO has original and exclusive jurisdiction over
all intra-union and inter-union conflicts.

 FALSE
30. The jurisdiction of the BLR may be exercised over even when not invoked by any
party.

 FALSE, BLR has no authority to assume jurisdiction, it must be invoked except when
the jurisdiction was acquired through referral of SOLE.

31. A petition for certification election must be filed with the Med-Arbiter.

 TRUE, it is filed with BLR but it is handles by the Med-Arbiter. This can be false if
filed through Med-Arbiter LRD

32. An order denying the petition for certification election is appealable to the NLRC.

 FALSE, because only jurisdiction is appealable, not the authority of RD, appeal must
be filed to the Secretary of Labor

33. The Secretary of Labor has compulsory jurisdiction on any matter involving labor
dispute.

 FALSE, only matters appealed, and on matters it may assume compulsory

jurisdiction.

34. In the certification election conducted in Company A, all 150 employees belonging
to the bargaining unit had cast their votes. Show by example the situation
respectively illustrating the following:

i. Minimum requirement/s to declare valid certification election.

 76 VALID VOTES

ii. Minimum requirement/s to declare a winner.

 39 VALID VOTES

iii. Minimum requirement/s to conduct a run-off election.

 At least 2 contending unions

  And total votes must be equal to 50% of valid votes cast

35. For as long as the employer has voluntarily recognized a legitimate labor
organization as the employees’ bargaining representative, a CBA entered into
between the employer and such union is a valid CBA for purposes of labor laws.

 FALSE, it depends on whether or not the voluntary recognition is valid because

there are requirements, and if the CBA is valid eg. invalid CBA because it does not
improve the terms and conditions.

36. Only the union who won in a certification election has the right to negotiate a
collective bargaining agreement with the employer.

 FALSE, because EBR may also be voluntary recognized without need of

Certification Election.

37. Only the members of a union may be required to pay dues to such union.

 FALSE, non-member also pays when that non-union member avails of the CBA
benefits, by paying agency fee.

38. All employees in the company may avail of the benefits secured through the CBA.

 FALSE, managerial employees caanot avail of rank and file CBA

39. What is a “check off” and the requirements for a valid check-off?

 CHECK OFF – is an amount due to the union, paid through salary deduction of the
employer, to be turned over to the union

 REQUIREMENT: Individual authotization

40. In establishments where there is no Collective Bargaining Agreement, the duty to

bargain collectively generally refers to the duty to:

 The DUTY to BARGAIN COLLECTIVELY MEANS:

 On part of the EBR, without CBA:

 1. Submit proposed CBA immediately, no later than 1 year, if no proposal
after 1 year, EBR may lose its representation status as another union may file a
petition for certification election. EBR does not automatically lose the status.

2. To negotiate in good faith with employer.

 On part of the Employer, without CBA:

1. Transmit its counter proposal within 10 days.

2. Bargain in good faith with the union.

41. In establishments where there is a Collective Bargaining Agreement, what does the
duty to bargain collectively refer to?

 On part of the EBR and employer, if with CBA:

 The duty to carry out and respect the terms and conditions of the agreement faithfully,
and not violate or change the terms.

42. Identify the requirement in order that mere interference in the employees’ right to
self-organization will become punishable as an unfair labor practice.

43. Under all circumstances, a “yellow dog” contract is illegal.

 TRUE. It is an undertaking by an employee that as a condition for employment

they will not join, assist or form a union during their employment with the
employer

44. What is the “Contract Bar” Rule?

  Existence of the CBA bars the modification or termination of the CBA except
during the freedom period.

 The "Contract Bar Rule" under Section 3, Rule XI, Book V, of the Omnibus Rules
Implementing the Labor Code, provides that: " . If a collective bargaining
agreement has been duly registered in accordance with Article 231 of the Code, a
petition for certification election or a motion for intervention can only be
entertained within sixty (60) days prior to the expiry date of such agreement." The
rule is based on Article 232,[8] in relation to Articles 253, 253-A and 256 of the
Labor Code. No petition for certification election for any representation issue may
be filed after the lapse of the sixty-day freedom period. The old CBA is extended
until a new one is signed. The rule is that despite the lapse of the formal effectivity
of the CBA the law still considers the same as continuing in force and effect until a
new CBA shall have been validly executed.[9] Hence, the contract bar rule still
applies.[10] The purpose is to ensure stability in the relationship of the workers
and the company by preventing frequent modifications of any CBA earlier entered
into by them in good faith and for the stipulated original period

45. What are the two (2) general requirements in order that a petition for certification
election filed by a legitimate labor organization will be barred by the “Contract
Bar” Rule?

 2 requirements that a CBA will be a BAR to PCE

1. VALID CBA

2. SUBSISTING CBA

46. Identify the six (6) requirements for a valid Collective Bargaining Agreement.

REQUIREMENTS FOR CBA SO THAT IT CONSTITUTES A CONTRACT BAR

1. Point 1: CONTRACTING PARTIES

-CBA is signed by both employer and EBR

2. Point 2: CONTENT

-Contains the Terms and Conditions of employment and must not

contain anything contrary to law, must not be lower than the given
standars

3. Point 3: RATIFICATION OF EMPLOYESS IN THE CBU

-Posted in 2 conspicuous places of the employer 5 days prior to

ratification
 -Ratified by majority of the employees in the CBU

4. Point 4: REGISTERED IN THE BLR

-Submitted the CBA to BLR for registration and contained mandated

provisions such as grievance machinery

47. Identify the two (2) major classifications of the provisions of a Collective
Bargaining Agreement.

 2 general classification of CBA provisions:

ECONOMIC PROVISIONS

POLITICAL PROVISIONS

48. Aside from ULP and Collective Bargaining Deadlock, there are two (2) other valid
grounds for strike/lock-out.

 FALSE,ONLY 2, just ULP and Collective Bargaining Deadlock

49. Identify the three (3) general requirements for a valid strike/lockout.

 Valid and factual grounds

 Correct procedure of filing notice of strike, filing of notice and strike vote

 Correct procedure in the duration of the strike –no prohibited or illegal acts during the
strike

50. Violations of the CBA is not a valid ground for strike. FALSE

51. Define/Describe the following:

a. Strike -any temporary stoppage of work by the concerted action of employees as a result
of an industrial or labor dispute

b. Lock-out - any temporary refusal of an employer to furnish work as a result of an

industrial or labor dispute.
c. “Wild cat” strike/lock-out -strike /lockout declared and staged without filing the
required notice of strike and without the majority approval of the recognized bargaining
agent.

d. “Cooling-off” period in strikes/lock-outs If the ground of the notice of strike is CB

deadlock, the cooling-off period is 30 days. If ULP, 15 days. During these periods, the
NCMB shall exert all efforts at the mediation and conciliation to effect voluntary
settlement.

e. “Strike/Lock-out ban”

The prescribed cooling-off period and the 7-day strike ban after submission of report of strike
vote are mandatory. The observance of both periods must be complied with, although a labor
union may take a strike vote and report the same within the statutory cooling-off period. The
avowed intent of the law is to provide an opportunity for mediation and conciliation. The
waiting period, on the other hand, is intended to provide opportunity for the members of the
union or the management to take the appropriate remedy in case the strike or lockout vote
report is false or inaccurate. Moreover, the cooling-off and 7-day strike ban provisions of law
are reasonable and valid restrictions on the right to strike and these restrictions constitute a
valid exercise of police power of the State. If only the filing of the strike notice and the strike
vote report would be deemed mandatory, but not the waiting periods so specifically and
emphatically prescribed by law, the purposes for which the filing of the strike notice and strike
vote report is required cannot be achieved. The submission of the report gives assurance that a
strike vote has been taken and that, if the report concerning it is false, the majority of the
members can take appropriate remedy before it is too late.

f. “Feather-bedding” employee practices which create or spread employment by

unnecessarily maintaining or increasing the number of employees used, or the amount of
time consumed, to work on a particular job

a. “Blue-sky Bargaining” -unreasonable terms

b. “Improved-offer balloting” - referendum but secret  balloting  on theimproved offer  of

the employer on or before the 30th day of the strike conducted by the National Conciliation
& Mediation Board in an effort to settle a strike
 c. “Reduced-offer balloting” referendum but secret  balloting  on the reduced offer  of the
union on or before the 30th day of the lockout conducted by the National Conciliation &
Mediation Board in an effort to settle a strike

d. “freedom period” -60 day period prior to expiration of CBA, wherein PCE may be filed

52. If the strike is to be conducted by the Exclusive Bargaining Representative, all

employees in the collective bargaining unit have the right to vote. TRUE

53. On injunction against valid strikes/lock-outs:

i. State the general rule applicable

ii. State the exception to the general rule, if any.

 No temporary or permanent injunction or restraining order in any case involving or

growing out of labor disputes shall be issued by any court or other entity, except as
otherwise provided in Articles 218 and 264 of this Code.

 The National Labor Relations Commission proper shall have the power to issue
temporary injunctions but only after due notice and hearing and in accordance
with its rules. It may also issue restraining orders to appropriate cases subject as a
general rule to the requirements of due notice and hearing.

54. As a general rule, all striking employees may be dismissed from employment if the
strike conducted is found to be illegal. Identify at least two (2) exceptions.

 Ordinary striking worker mere participation and did not commit prohibited acts
during the strike

 Union officer did not know he was participating in an illegal strike

55. Just like any action for enforcement of criminal liability, a party desiring to
enforce the criminal liability of the offender for unfair labor practice may file his
complaint with the prosecution office for as long as the period for filing it has not
yet prescribed.

 FALSE, a judgment from the ULP case is also a requirement before the criminal case
is filed.
56. Because of the unfair labor practice committed by Union A against Union B, the
latter decided to go on strike on February 15, 2017 and filed the notice of strike
with the NCMB on Jan 30, 2017. What legal advice should you give to Union B?

 That B cannot stage a legal strike because Unfair Labor Practice per the LC is only
directed against the employer, of by the Union against its members.

57. What is a union security clause?

 Union security clause: ensures the strength and existence of the union and prevents it
from being dissipated

58. Describe the following types of union security clauses:

i. “Maintenance of Membership”

There is maintenance of membership shop when employees, who are union members as of
the effective date of the agreement, or who thereafter become members, must maintain
union membership as a condition for continued employment until they are promoted or
transferred out of the bargaining unit or the agreement is terminated. No employee is
compelled to join the union, but all present or future must, as a condition of employment,
remain in good standing in the union

ii. “Union -Shop”

There is union shop when all new regular employees are required to join the union within
a certain period as a condition for their continued employment. [GMC v. Casio, 2010]

Non-members may be hired, but to retain employment, they must become union members
after a certain period. The requirement applies to present and future employees.

iii. “Closed -Shop”

A closed shop, on the other hand, may be defined as an enterprise in which, by agreement
between the employer and his employees or their representatives, no person may be
employed in any or certain agreed departments of the enterprise unless he or she is,
becomes, and, for the duration of the agreement, remains a member in good standing of a
union entirely comprised of or of which the employees in interest are a part. [GMC v.
Casio, 2010]

Only union members can be hired by the company and they must remain as members to
retain employment in the company. [Azucena]

59. Identify one major characteristic of the Certified EBR if the CBA contains a closed
shop provision.

60. Because the right to join a labor organization also means the right not to join no
employee may be required to join a labor organization as a condition for
employment or continued employment. TRUE
 61. Under ALL circumstances, the right to decide whether or not to join a labor
organization is lodged with the employee. TRUE

LABOR NOTES JAN 22, TUESDAY:

 Rank and file cannot avail of Managerial CBA benefits because there is no managerial
CBA, managerial employees cannot form or join a labor union.

 Managerial employees can never benefit of rank and file CBA, because there will be
conflict of interest.

 Supervisory employees can benefit from CBA for supervisory employees

 Rank and file employees can benefit from CBA for rank and file employees, provided
the employee belongs to the CBU represented in that CBA

 Managerial staff and confidential employees may avail of the CBA depending if they
are supervisory or if they are rank and file, although they cannot vote.

 Union dues – paid by member

 Agency fee – paid by non-union member, to the EBR to avail of the benefits of the CBA
negotiated by the EBR.

 Union dues vs agency fee distinctions:

Union Dues Agency Fee

membership member Non-member
purpose Obligation of member Benefit availmant
Basis of fee CBA

 Check requires consent of: employer and employee, employer also because it is an
added work on part of the employer to collect the fee
  Form of employer’s agreement to deduct:

-CBA

-the union is a legitimate labor organization, because it may request check-off

 Union Dues always require Individual authorization

 Agency Fee, no need for authorization always, if employee accepts the benefits of the
CBA, the acceptance is deemed as the authorization, because availment of benefit is
the purpose of the fee

 Representation fee IS agency fee, paying to be represented. Therefore union members

do not pay agency fee because it is the union’s duty to represent its members.

 Union Dues require authorization because availment of the CBA benefits cannot be
interpreted as consent for check-off, the fruits of the union should be enjoyed by its
members.

LABOR NOTES JAN 24, WEDNESDAY:

 All LLO have duty to bargain: FALSE, only EBR has duty to bargain collectively.

 The DUTY to BARGAIN COLLECTIVELY MEANS:

 On part of the EBR, without CBA:

3. Submit proposed CBA immediately, no later than 1 year, if no proposal

after 1 year, EBR may lose its representation status as another union may file a
petition for certification election. EBR does not automatically lose the status.

4. To negotiate in good faith with employer.

 On part of the Employer, without CBA:

3. Transmit its counter proposal within 10 days.

 4. Bargain in good faith with the union.

 On part of the EBR and employer, if with CBA:

1. The duty to carry out and respect the terms and conditions of the
agreement faithfully, and not violate or change the terms.

 Effectivity of the CBA is 5 years

 Why 5 years: so that employees can negotiate for better terms, eg. Better wages after 5
years.

 Can it be less than 5 years? Yes, economic provisions of the CBA can be renegotiated
after 3 years.

 2 general classification of CBA provisions:

1. ECONOMIC PROVISIONS

2. POLITICAL PROVISIONS

 3 major types of political provisions:

-Representation eg, who is the existing EBR

-Union security clause eg. Maintenance of membership

-Grievance machinery

 Union security clause: ensures the strength and existence of the union and prevents it
from being dissipated

 Political provisions may never be negotiated

LABOR NOTES JAN 28, MONDAY:

 In an organized establishment, if there is an EBR, it is presumed there is a CBA, and if

there is a CBA, it is presumed there is an EBR

 The law provides a 5 year duration for a CBA

 An example of economic provisions is wages and benefits

 PCE may be files WITHIN the 60day freedom period

 PCE cannot be filed after the freedom period, because the current EBR is still the EBR
given the situation that no one challenged the current EBR within the freedom period

 2 requirements that a CBA will be a BAR to PCE

3. VALID CBA

4. SUBSISTING CBA

 REQUIREMENTS FOR CBA SO THAT IT CONSTITUTES A CONTRACT

BAR

o Point 1: CONTRACTING PARTIES

-CBA is signed by both employer and EBR

o Point 2: CONTENT

-Contains the Terms and Conditions of employment and must not

contain anything contrary to law, must not be lower than the given
standars

o Point 3: RATIFICATION OF EMPLOYESS IN THE CBU

-Posted in 2 conspicuous places of the employer 5 days prior to

ratification

-Ratified by majority of the employees in the CBU

 o Point 4: REGISTERED IN THE BLR

-Submitted the CBA to BLR for registration and contained mandated

provisions such as grievance machinery

LABOR NOTES JAN 30, WEDNESDAY:

 Purpose of certification election: Process by which employees in the CBU elect the
union who will be their EBR who will negotiate the CBA with employer

 Failure of EBT to enter into CBA does not mean that it sat on its rights

 An employer continues to recognize the EBR as the EBR until a new EBR is declared
by the BLR

 If employer ignored the proposal and 1 year has lapsed, may another union file for
certification election?

o It depends, if the EBR did nottake any legal action against the employer who
failed in its duty to bargain, EBR should file complaint for ULP.

 There is only 2 grounds for strike

UNFAIR LABOR PRACTICE AND COLLECTIVE BARGAINING DEADLOCK

o Union Busting falls under ULP because it violate the right to self-organization

o Violation of political provisions falls under ULP because it is directed against

the strength of the union

o Violation of economic provision falls under ULP because it negates the CBA
therefore negates the representation of the union
 Unions that are certified as the sole and exclusive bargaining agent (SEBA) may file a
notice of strike at the NCMB Regional Branch. In the absence of a SEBA, a legitimate labor
organization may file but only on grounds of ULPs.