Dean Abad - Labor Lecture Handout 2

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EMPLOYEE CLASSIFICATION FRAMEWORK: Article 295-296, Labor Code

(Art. 295-296, Labor Code) GENERAL RULE: Employment is regular
EXCEPTIONS:
• Probationary • Seasonal
• Term • Casual
• Project
EXCEPTIONS TO EXCEPTION:
• Probn. Employee allowed to work after probn. period
• Casual employee allowed to work FOR AT LEAST ONE YEAR,
whether continuous or broken.
• Term allowed to work beyond term
•Project employee allowed to work after project without any contract; or project
employee allowed to work project after project but no termination reports
PALS ONLINE LECTURE PART2 1 • Regular seasonal workers PALS ONLINE LECTURE PART2 2
• where the employment has been
fixed for a SPECIFIC PROJECT OR

The provisions of a written agreement to the contrary
UNDERTAKING, the completion of
notwithstanding, and regardless of the oral agreement which has been determined at the time
between the parties, an employment shall be deemed
of the engagement of the worker; OR
REGULAR where the employee has
been engaged to perform activities • where the job, work or services to be
which are usually necessary or performed is SEASONAL in nature,
desirable to the usual trade or and the employment is for the duration
business of the employer EXCEPT xxx of the season.
PALS ONLINE LECTURE PART2 3 PALS ONLINE LECTURE PART2 4
An employment shall be deemed to be

KINDS OF EMPLOYEES
CASUAL if it is NOT covered by the
preceding paragraph;
PROVIDED, that any employee who has rendered 1. REGULAR EMPLOYEES – those who
at least one year of service, whether such service
are hired for activities which are
be continuous or broken, shall be considered a
necessary OR desirable in the usual trade
REGULAR employee with respect to the or business of the employer
activity for which he is employed, and his
employment shall continue while such activity
exists. PALS ONLINE LECTURE PART2 5 PALS ONLINE LECTURE PART2 6
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2. Probationary employees – those who are hired PROBATIONARY EMPLOYMENT:

generally for regular positions but are placed on a
probationary status for a period of 6 months (as a Such exists where the employee -
general rule).
1. Upon his ENGAGEMENT;
2. Is made to undergo a TRIAL PERIOD
during which the employer determines his
fitness to qualify for regular employment
3. Based on REASONABLE STANDARDS
made known to him at the time of his
engagement.
MAY A PROBATIONARY
LINEMAN VALIDLY CLAIM
GROUNDS FOR TERMINATION THAT BEING A
SUBORDINATE, HE CANNOT
BE CONSIDERED A
CONSPIRATOR IN THE
COMMISSION OF
PILFERAGE COMMITTED BY
HIS SUPERIOR? Manila Electric
JUST FAILURE TO Company vs. Jan Carlo Gala, G.R.
CAUSES QUALIFY AS A No. 191288. 07 March 2012.
(Art. 282 [297] REGULAR
Labor Code) EMPLOYEE (ART. 281
[296], LABOR CODE)
GENERAL RULE ON TIMEFRAME:

PROBLEM:
Period of probationary employment is generally six
(6) months
HYBRID CONTRACTS OF
Exceptions to General Rule:
PROBATIONARY EMPLOYMENT
· Three years in case of teachers (Fr. Pedro Escudero vs. Office of
WITH A SPECIFIC TERM
President, 172 SCRA 783; Biboso vs. Victorias Milling, 76 SCRA 250)
In a situation where the probationary status overlaps with a fixed-term
· When parties agree to a longer term by virtue of company contract not specifically used for the fixed term it offers, Article 281*
policy or when the same is required by the nature of the should assume primacy and the fixed-period character of the
work (Ver Buiser vs. GTE Yellow Pages Directories, 131 SCRA 151) contract must give way. x x x" (Brazil v. STI Education Service Group, Inc.,
G.R. No. 233314, [November 21, 2018], citing Yolanda Mercado vs. AMA Computer
Center – Paranaque, 632 Phil. 228 [2010]).
· Agreement to extend probationary period (Mariwasa vs. Leogardo,
169 SCRA 465) * Ada note: Now Article 296, LC, on the nature of probationary employment
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3. Term employees – CRITERIA TO KNOW WHEN FIXED TERM

EMPLOYMENT CONTRACT IS VALID:
those who are HIRED FOR A SPECIFIC PERIOD, the
arrival of the date specified in the contract of which
automatically terminates the employer-employee • The fixed period was knowingly and voluntarily entered
relationship. into by the parties, without any force, duress, improper
pressure being brought to bear upon the employee by the
employer, and absent circumstances vitiating employee’s
consent
• It satisfactorily appears that employer and employee
dealt with each other on more or less equal terms, with no
moral dominance whatsoever being exercised by
employer over employee.
4. Project employees – Hanjin case: Indicators of Project Employment is found

in Section 2.2(e) and (f) of DOLE Department Order No.
those who are HIRED FOR 19, Series of 1993, entitled Guidelines Governing the
A SPECIFIC PROJECT OR Employment of Workers in the Construction Industry, to
UNDERTAKING, the wit -
termination of which has “2.2 Indicators of project employment. - Either one or
been determined at the more of the following circumstances, among others,
time of hiring. may be considered as indicators that an employee is a
project employee.
(d) The employee, while not employed and awaiting

(a) The duration of the specific/identified engagement, is free to offer his services to any other
undertaking for which the worker is engaged is employer.
(e) The termination of his employment in the particular
reasonably determinable.
project/undertaking is reported to the Department of
(b) Such duration, as well as the specific Labor and Employment (DOLE) Regional Office having
work/service to be performed, is defined in an jurisdiction over the workplace within 30 days following
employment agreement and is made clear to the the date of his separation from work, using the
employee at the time of hiring. prescribed form on employees'
(c) The work/service performed by the employee is terminations/dismissals/suspensions.
in connection with the particular (f) An undertaking in the employment contract by the
employer to pay completion bonus to the project
project/undertaking for which he is engaged.
employee as practiced by most construction
companies.
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WHERE EMPLOYEES NOT CLEARLY AND KNOWINGLY

INFORMED OF THE PROJECT NATURE OF EMPLOYMENT,
Ma. Charito C. Gadia, et al. vs. Sykes Asia, Inc.
THEN REGULAR EMPLOYEES. Omni Hauling Services, Inc.,
et al vs. Bernardo Bon, et al., G.R. No. 199388, 03 et al., G.R. No. 209499, 28 January 2015. –
September 2014. –
Requisites for an employee to be considered
In this case, records are bereft of any evidence to show that project-based BPO employee: (a) the employee
respondents were made to sign employment contracts explicitly
stating that they were going to be hired as project employees, with the was assigned to carry out a specific project or
period of their employment to be co-terminus with the original period undertaking; and (b) the duration and scope of
of Omni’s service contract with the Quezon City government. which were specified at the time they were
Neither is petitioners’ allegation that respondents were duly apprised engaged for such project.
of the project-based nature of their employment supported by any
other evidentiary proof.
In this case, Gadia is properly a project employee:

(a) Sykes BPO informed the petitioner of their MAY AN EMPLOYEE WHO WAS HIRED
employment status at the time of their engagement, ON PROBATIONARY BASIS, BE
as evidenced by their employment contracts which CONVERTED INTO PROJECT
provided that they were hired in connection with the
Alltel Project, and that their positions were “project- EMPLOYMENT ON A YEARLY BASIS?
based and as such is co-terminus to the project; and
(b) Sykes duly submitted an Establishment Employment
Report and an Establishment Termination Report to
NO!!! They are already regular
the DOLE Makati Field Office regarding the cessation employees. (MacArthur Malicdem and Hermenigildo
of the Alltel Project and the list of employees affected Flores vs. Marulas Industrial Corporation, et al., G.R. No.
204406, 26 February 2014)
thereby. Case law deems such submission as an
indication that the employment was indeed project-
based. PALS ONLINE LECTURE PART2 21 PALS ONLINE LECTURE PART2 22
 An employee who is allowed to work after a

5. Seasonal employees -- those HIRED FOR
probationary period shall be considered a regular
WORK OR SERVICES WHICH IS SEASONAL IN
employee. (Article 281, Labor Code.)
NATURE, and the employment is for the duration of
the season
 A project or work pool employee, who has been
continuously, as opposed to intermittently, rehired by
the same employer for the same tasks or nature of
tasks; and whose task are vital, necessary and
indispensable to the usual trade or business of the
employer, must be deemed a regular employee.
(Maraguimot, Jr. v. NLRC, 248 Phil. 580 [1998].)
 There is no actual project; hence, Marulas cannot

invoke the exception in Art. 280 of the Labor Code.
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IMPORTANT NOTE ON EMERGING TREND OF

SUPREME COURT CASES CIRCA 2013-2015: Where the seasonal employees had been hired repeatedly
REGULAR SEASONAL WORKERS. -- and continuously to perform the same tasks or activities for
several seasons or even after the cessation of the season,
this length of time may likewise serve as badge of regular
employment.
In fact, even though denominated as “seasonal workers,” if

these workers are called to work from time to time and are
only temporarily laid off during the offseason, the law does
not consider them separated from the service during the
off-season period. The law simply considers these seasonal
workers on leave until re-employed.
6. Casual employees – those who are hired to

Issue: IF regular seasonal workers, are they
perform work or service which is MERELY
entitled to CBA benefits accorded the regular INCIDENTAL to the business of the employer. (Dept.
employees? Order No. 10, S. 1997)
Answer: Complainants are REGULAR

SEASONAL WORKERS BUT complainants are
NOT entitled to CBA benefits which are for
regular workers only.
Universal Robina Sugar Milling Corporation and Rene Cabati, G.R. No.
186439. 15 January 2014. J Brion.
Any casual employee who has rendered at

least one (1) year of service, whether it be
continuous or broken, shall be
considered a REGULAR EMPLOYEE with
respect to the activity for which he is
employed, and his employment shall
continue while such activity exists.
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VS
MANAGEMENT LABOR
• CAPITAL • WORK
• PROFIT • EQUITABLE SHARE IN
THE PROFITS
• Management • Workers’ rights
prerogatives Minimum standards; OWNER Ind. contractor employees
Hiring, employee constitutional rights to security
classification, work of tenure, unionization, Existence of ER-EE relationship is CONDITION SINE QUA
methods, rules and collective bargaining and to
regulations strike
NON for the determination of whether or not one may
exercise right of self-organization for purposes of
STATE collective bargaining
police power/social justice
interpretation in favor of labor
WHO MAY UNIONIZE? EXCEPTIONS: WHO

CANNOT UNIONIZE --
General Rule: • Govt employees (incl GOCC with
original charters)
Any employee may be eligible to • Managerial (distinguish between
join and be a member of a labor supervisory employees which can
union, beginning on his first day form union but cannot join with
of service, whether employed for R&F)
• Confidential employees
a definite period or not. (Article 277 [c],
Labor Code; See also: UST Faculty Union vs. Bitonio) • Members of cooperative
• Aliens and employees of diplomatic
PALS ONLINE LECTURE PART2 33 corps.
PALS ONLINE LECTURE PART2 34
For Independent Union or Federations/National (a) Fifty pesos (P50.00) registration fee;
(b) The names of its officers, their addresses, the
Unions – will acquire legal personality upon
principal address of the labor organization, the minutes of
issuance of certificate of registration the organizational meetings and the list of the workers
who participated in such meetings;
ART. 240 (as amended). Requirements of (c) In case the applicant is an independent union, the
Registration. - A federation, national union or names of all its members comprising at least twenty
industry or trade union center or an independent percent (20%) of all the employees in the bargaining unit
union shall acquire legal personality and shall be where it seeks to operate;
(d) If the applicant union has been in existence for one or
entitled to the rights and privileges granted by law
more years, copies of its annual financial reports; and
to legitimate labor organizations upon issuance of (e) Four copies of the constitution and by-laws of the
the certificate of registration based on the applicant union, minutes of its adoption or ratification,
following requirements: and the list of the members who participated in it.”
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(a) The names of the chapter’s officers, their

Local or a Chapter of REGISTERED addresses, and the principal office of the chapter;
Federations/National Unions – will and
(b) The chapter’s constitution and by-laws: Provided,
acquire legal personality only for the purpose of filing a
That where the chapter’s constitution and by-laws
petition for CERTIFICATION ELECTION upon issuance
are the same as that of the federation or the national
of the CHARTER CERTIFICATE by the registered union, this fact shall be indicated accordingly.
Federation/National Union.
The additional supporting requirements shall be
The Chapter/Local shall be entitled to all other rights certified under oath by the secretary or treasurer of
appurtenant thereto ONLY upon submission of the the chapter and attested by its president.”
following other documents.
THE INCLUSION OF UNION MEMBERS OF

“ART. 247. Grounds for cancellation of union registration. - The
EMPLOYEES OUTSIDE THE BARGAINING following may constitute grounds for cancellation of union
UNIT NO LONGER A GROUND FOR registration:
CANCELLATION OF UNION (a) Misrepresentation, false statement or fraud in connection with the
REGISTRATION, CONTARY TO THE adoption or ratification of the constitution and by-laws or
amendments thereto, the minutes of ratification, and the list of
IMPLICATION IN PREVIOUS SUPREME COURT members who took part in the ratification;
DECISIONS IN TOYOTA MOTOR AND
TAGAYTAY HIGHLANDS CASES. (b) Misrepresentation, false statements or fraud in connection with
the election of officers, minutes of the election of officers, and the list
of voters;
PALS ONLINE LECTURE PART2 39 (c) Voluntary dissolution byPALSthe members.

ONLINE LECTURE PART2 (new mode) 40
NEW MODE:
“ART. 248. Voluntary Cancellation of Registration. - The
registration of a legitimate labor organization may be
cancelled by the organization itself. Provided, That at least
two-thirds of its general membership
votes, in a meeting duly called for that purpose to
dissolve the organization: Provided, further, That an Otherwise stated, can you consider the
application to cancel registration is thereafter submitted by employer as a party-in-interest?
the board of the organization, attested to by the president
thereof.”
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Republic Act No. 9481, Sec. 12 . A new provision, Article

258-A is hereby inserted into the Labor Code to read as follows:
“ART. 271 (new number). Employer as Bystander. - In all LABOR RELATIONS LAW
cases, whether the petition for certification election is
filed by an employer or a legitimate labor organization,
the employer shall not be considered a party thereto with LECTURE ON THE
a concomitant right to oppose a petition for certification APPROPRIATE
election. The employer’s participation in such proceedings shall
be limited to: (1) being notified or informed of petitions of such BARGAINING UNIT
nature; and (2) submitting the list of employees during the pre- DEAN ADA D. ABAD
election conference should the Med-Arbiter act favorably on the
petition
1. Bargaining unit defined – Art. 219, par. m, Labor Code

Dept Order No. 40-03, R1 S1 (d)
“(d) BARGAINING UNIT – Managerial employees – those vested with powers or

refers to a group of prerogatives to LAY DOWN AND EXECUTE MANAGEMENT
employees sharing mutual POLICIES and/or to hire, transfer, suspend, lay-off, recall
interests within a given employees.
employer unit, comprised
of ALL or LESS THAN ALL Supervisory employees – those who, in the interest of
of the entire body of management, EFFECTIVELY RECOMMEND SUCH MANAGERIAL
employees in the employer ACTIONS if the exercise of such authority is not merely routinary
unit or any specific or clerical in nature, but requires use of independent judgment.
occupation or geographical
grouping within such RANK AND FILE employees – all other employees
employer unit.” NOT falling within any of the above definitions.
(catch all definition)
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The most efficacious bargaining unit is one which is

GENERAL RULE: comprised of workers enjoying community or mutuality of
interests. This is so because the basic test of a bargaining
SUBSTANTIAL MUTUAL INTEREST unit’s acceptability is whether it will best assure to all the
employees concerned of the exercise of their collective
OR COMMUNITY OF INTEREST RULE bargaining rights.
The determinative factor in finding out what

workers may properly constitute an
appropriate bargaining unit is the
substantial similarity of work and duties.
REASON WHY YOU NEED TO

KNOW WHO MAJORITY UNION IS: CERTIFICATION ELECTION IS THE BEST WAY TO FIND
OUT WILL OF THE EMPLOYEES
EMPLOYER IS NOT UNDER EXCEPTION:

OBLIGATION TO BARGAIN WITH 1. CONSENT ELECTION
2. DIRECT CERTIFICATION
ANY UNION, EXCEPT THE 3. SOLE AND EXCLUSIVE BARGAINING AGENT
MAJORITY UNION (PREV VOLUNTARY RECOGNITION), DOLE DEPT ORDER NO. 40-1-
15 S 2015
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WHAT IS THE ROLE OF THE EMPLOYER “REPUBLIC ACT NO. 9481 VIZ., ART. 271.
DURING CERTIFICATION ELECTIONS (PT&T vs. Employer as Bystander. - In all cases, whether the
Laguesma, 233 SCRA 452) petition for certification election is filed by an employer
or a legitimate labor organization, the employer shall
not be considered a party thereto with a concomitant
GENERAL RULE: right to oppose a petition for certification election.
NONE. It is a well-settled rule The employer’s participation in such proceedings shall
that an employer has no be limited to:
standing to question a (1)being notified or informed of petitions of such
nature; and
certification election since this (2)submitting the list of employees during the pre-
is the sole concern of the election conference should the Med-Arbiter act
workers. favorably on the petition
EXCEPTION: SOLE AND EXCLUSIVE

The only exception to this rule is where the employer has to BARGAINING
file the petition for certification election itself pursuant to REPRESENTATIVE (SEBA)
Art. 270 of the Labor Code, because it was requested to
bargain collectively. NOTE: This is allowed only if there is no other
legitimate labor organization operating within the
bargaining unit – Dept Order No. 9, Rule X, Sec. I (c); Dept Order No. 40-
03, Rule VII
WHO HAS POWER TO RECOGNIZE?

MAJORITY REGIONAL DIRECTOR, provided legitimate
UNION
labor org complies with requirements
EMPLOYER
MINORITY UNION
SEBA PROCEDURE IF THERE IS NO CBA

(UNORGANIZED) AND ONLY ONE LLO
1. NAME AND ADDRESS OF THE LLO
2. NAME AND ADDRESS OF COMPANY • REGIONAL DIRECTOR TO CALL FOR CONFERENCE
3. BARGAINING UNIT SOUGHT TO BE REPRESENTED WITHIN FIVE (5) DAYS
4. APPROXIMATE NUMBER OF EMPLOYEES IN
• UNION TO SUBMIT NAMES OF EMPLOYEES IN THE APP
BARGAINING UNIT BARGAINING UNIT WHICH SUPPORT THE CERTIFICATION
5. MAJORITY OF #4 SUPPORT THE CERTIFICATION AS SEBA, WHICH MUST BE AT LEAST A MAJORITY OF THE
AS SEBA OF THE PETITIONING UNION NUMBER OF EMPLOYEES IN THE BARGAINING UNIT
6. NO OTHER LEGITIMATE LABOR ORGANIZATION •
• CERTIFICATION UNDER OATH BY PRESIDENT OF
OPERATING WITHIN THE BARGAINING UNIT REQUESTING UNION ARE TRUE AND CORRECT BASED ON
PERSONAL KNOWLEDGE
DOCUMENTS DULY CERTIFIED BY UNION PRESIDENT
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IF REQUESTING UNION COMPLIES

IF REQUESTING UNION WITH REQUIREMENTS, THEN
FAILS TO COMPLY WITH CERTIFIED UNION OR LOCAL SHALL
ENJOY ALL RIGHTS AND
REQUIREMENTS, THEN
PRIVILEGES OF AN EXCLUSIVE
ORDER FOR THE HOLDING BARGAINING AGENT IN THE
OF CERTIFICATION COVERED BARGAINING UNIT.
ELECTIONS
• POSTING OF SEBA CERTIFICATION FOR 15

CONSECUTIVE DAYS IN TWO
CONSPICUOUS PLACES IN THE
ESTABLISHMENT
• CERTIFICATION SHALL OPERATE TO BAR

ANY PETITION FOR CE FOR PERIOD OF
INTER-UNION
ONE (1) YEAR FROM ISSUANCE. CONTROVERSIES
• UPON EXPIRATION, ANY LLO MAY FILE A
PETITION FOR CE, UNLESS A CBA HAS
BEEN EXECUTED AND REGISTERED
SITUATION: SITUATION:
CBA WAS EXECUTED BETWEEN COVID

COVID SCHOOL IS UNORGANIZED SCHOOL AND MAJORITY UNION PANALO
(NO EXISTING CBA). UNION UNDER THE FOLLOWING TERMS:
HOWEVER THERE EXISTS TWO A)ECONOMIC TERM FROM 01 JANUARY

2015 TO 31 DECEMBER 2018
LEGITIMATE LABOR
ORGANIZATIONS, PANALO UNION B)REPRESENTATION TERM FROM 01
AND ASA PA UNION. JANUARY 2015 TO 31 DECEMBER 2020.
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SITUATION:
MAJORITY PANALO UNION MOVES TO

DISQUALIFY ASA PA UNION,
QUESTIONING THE UNION REGISTRATION
OF ASA PA UNION, ON THE GROUND CHALLENGING
THAT IT HAS BOTH SUPERVISORY AND PETITION FOR CE
CONFIDENTIAL EMPLOYEES IN THEIR
RANKS. RULE ON THE MOTION
GROUNDS FOR CHALLENGING THE

PETITION FOR CE
1. Union is NOT registered (differentiate with
Union registration should be cancelled)
2. Contesting 25% requiremt
3. Contesting the timeliness
a. Contract BAR
b. One-year BAR
c. Deadlock BAR
(HYPERLINK)
1. A MAJORITY OF THE MEMBERS

OF THE APPROPRIATE
BARGAINING UNIT MUST HAVE
CAST THEIR VOTE
2. THE UNION WHICH GETS A
MAJORITY OF THE VALID VOTES
CAST, THERE BEING A VALID
ELECTION, WINS.
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2. REQUISITES OF A VALID STRIKE:
(a) Must have a lawful purpose;
(b) Must be conducted through lawful

means; and
(c) Must be in compliance with the
procedural requirements under the
Labor Code
UNFAIR
LABOR
PRACTICES
All other forms of strikes which lack

either of the three requirements are
considered ILLEGAL STRIKES.
These are all prohibited for lack of valid
purpose or failure to comply with
procedural requirements.
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RECAPITULATION: 2.2 LAWFUL MEANS

WHAT ARE NON-STRIKEABLE ISSUES? 2.2.1 NO FORCE, VIOLENCE, COERCION, THREAT OR INTIMIDATION
SHOULD BE USED BY EITHER PARTY, NOR SHOULD THE EMPLOYER
(a) Violations of CBA which are not gross in character
USE STRIKEBREAKERS
shall be resolved via the Grievance Machinery; [Article 274, LC]
Article 264 (b) and (e), Labor Code; as amended Dept. Order No. 9, Rule 22, Sec. 12,
pars. 1 and 2
(b) Inter-union or intra-union disputes [Article 278 (b), LC; Dept.
Order No. 9, Rule 12, Sec. 2]
(c) Labor cases on wage orders (Guidelines governing Labor Relations

[19 Oct. 1987] issued by Sec. Drilon; See: Appendix “Y” of Foz’s Labor Code; See also:
Article 274, LC)
(d) Those issues which had already been brought to

voluntary or compulsory arbitration
“(b) No person shall obstruct, Question:

impede or interfere with by force,
violence, coercion, threats or What are the liabilities of the workers who
intimidation any peaceful picketing participated in the commission of the prohibited
by employees during any labor activities as mentioned above?
controversy, or in the exercise of the
right of self-orgn., or collective
bargaining, or shall aid or abet such
Answer:
destruction or interference. No
employer shall use or employ any Loss of employment
person to commit such acts, nor status
shall any person be employed for
such purpose (prohibition against strike-
breakers was added under Dept. Order No. 9).
EXTENT OF LIABILITIES: 2.3 COMPLIANCE WITH PROCEDURAL

REQUIREMENTS OF THE
• Union officers may lose their employment status if:
LABOR CODE
(a) he knowingly participates in an illegal strike,
viz.: non-compliance with purpose and process; OR Apart and separate from the lawful purposes and lawful
(b) he knowingly participates in the means in the conduct of a valid strike, the third
commission of illegal activities, whether the strike is requisite is compliance with the procedural
legal or illegal requirements of law. (First City Interlink Transportation Co., Inc. vs. Roldan-Confessor,
272 SCRA 124 [1997]; CCBPI Postmix Workers Union vs. NLRC, 299 SCRA 410 [1998].)
 Union members may lose employment status only

Notice of Strike  15/30 day cooling off period
if he knowingly participates in the commission
 Strike vote  7-day strike ban
of illegal activities.
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2.3.3 REQUISITES FOR STRIKE VOTE

AND/OR LOCK-OUT VOTE
Strike vote – approved by a majority of the

TOTAL UNION MEMBERSHIP in the bargaining
unit, via secret ballot, in a meeting or referenda
specially called for the purpose
Lock-out vote - approved by a majority of the Board “total union membership defined”
of Directors of the employer company, by secret ballot
in a meeting called for such purpose.
Note1:
Question: Are
Both cooling off period
ordinary workers who
and 7-day strike ban
must be complied with were reinstated due
and is mandatory. to dismissal for their
Otherwise, illegal participation in an
strike. (National Federation of illegal strike, entitled
Sugar Workers vs. Ovejera, 114
SCRA 354)
to payment of
backwages?
Answer: NO. By its use of the phrase unjustly dismissed,

Article 279 refers to a dismissal that is
unjustly done, that is, the employer dismisses
Conformably with the long honored
the employee without observing due process,
principle of a fair day's wage for a fair
either substantive or procedural. Substantive
day's labor, employees dismissed for
due process requires the attendance of any
joining an illegal strike are not entitled to
of the just or authorized causes for
backwages for the period of the strike even
terminating an employee as provided under
if they are reinstated by virtue of their
Articles 278, 283 or 284 of the Labor Code;
being merely members of the striking union
while procedural due process demands
who did not commit any illegal act during
compliance with the twin-notice requirement.
the strike.
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WHO CAN ASSUME JURISDICTION OR CERTIFY THE

3. HOW CAN ONE PREVENT THE HOLDING OF DISPUTE TO THE NLRC FOR COMPULSORY
A STRIKE? ARBITRATION?
ANSWER:
SECRETARY OF DEPT. OF
A) Assumption of Jurisdiction by the Secretary of Labor or LABOR AND EMPLOYMENT
Certification of the Labor Dispute to the National Labor
Relations Commission for Compulsory Arbitration. SILVESTRE H. BELLO III
(Article 264[g], Labor Code.)
Department of Labor and Employment
Muralla St. cor. Gen. Luna St., Intramuros, 1002
B) Acceptance of improved offer given by the employer Manila, Philippines
Hotline DOLE 2917 from your Globe or TM
mobile phones
908-2917 from your fixed-line phones for free
C) Petition to declare the strike illegal (Injunction) You can also text (SMS) us at 2910
Factors that have to be complied WHAT IS THE EFFECT OF AN

with before Secretary may assume ASSUMPTION OR CERTIFICATION
jurisdiction: ORDER?
a) There exists a labor dispute 1. The intended strike or lock-out is

automatically enjoined;
b) Said labor dispute is causing or
likely to cause a strike or lock-out 2. If one has already taken place at
c) Said labor dispute involves an the time of the issuance of the
industry indispensable to the national assumption or certification order,
interest then --
2.1) Striking or locked-out

workers shall
immediately return to
work
2.2) Employer is
required to immediately
resume operations and
readmit all workers under
the same terms and
conditions prevailing
before the strike (status
quo ante)
16

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28/04/2020

EMPLOYEE CLASSIFICATION FRAMEWORK: Article 295-296, Labor Code

• where the employment has been

fixed for a SPECIFIC PROJECT OR

An employment shall be deemed to be

2. Probationary employees – those who are hired PROBATIONARY EMPLOYMENT:

GENERAL RULE ON TIMEFRAME:

PALS ONLINE LECTURE PART2 11 PALS ONLINE LECTURE PART2 12

3. Term employees – CRITERIA TO KNOW WHEN FIXED TERM

4. Project employees – Hanjin case: Indicators of Project Employment is found

PALS ONLINE LECTURE PART2 15 PALS ONLINE LECTURE PART2 16

(d) The employee, while not employed and awaiting

WHERE EMPLOYEES NOT CLEARLY AND KNOWINGLY

In this case, Gadia is properly a project employee:

 An employee who is allowed to work after a

 There is no actual project; hence, Marulas cannot

IMPORTANT NOTE ON EMERGING TREND OF

In fact, even though denominated as “seasonal workers,” if

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6. Casual employees – those who are hired to

Answer: Complainants are REGULAR

Any casual employee who has rendered at

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WHO MAY UNIONIZE? EXCEPTIONS: WHO

(a) The names of the chapter’s officers, their

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THE INCLUSION OF UNION MEMBERS OF

PALS ONLINE LECTURE PART2 39 (c) Voluntary dissolution byPALSthe members.

Republic Act No. 9481, Sec. 12 . A new provision, Article

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1. Bargaining unit defined – Art. 219, par. m, Labor Code

“(d) BARGAINING UNIT – Managerial employees – those vested with powers or

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The most efficacious bargaining unit is one which is

The determinative factor in finding out what

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REASON WHY YOU NEED TO

EMPLOYER IS NOT UNDER EXCEPTION:

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EXCEPTION: SOLE AND EXCLUSIVE

WHO HAS POWER TO RECOGNIZE?

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SEBA PROCEDURE IF THERE IS NO CBA

IF REQUESTING UNION COMPLIES

• POSTING OF SEBA CERTIFICATION FOR 15

• CERTIFICATION SHALL OPERATE TO BAR

CBA WAS EXECUTED BETWEEN COVID

HOWEVER THERE EXISTS TWO A)ECONOMIC TERM FROM 01 JANUARY

MAJORITY PANALO UNION MOVES TO

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GROUNDS FOR CHALLENGING THE

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1. A MAJORITY OF THE MEMBERS

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2. REQUISITES OF A VALID STRIKE:

(a) Must have a lawful purpose;

(b) Must be conducted through lawful

All other forms of strikes which lack

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RECAPITULATION: 2.2 LAWFUL MEANS

(c) Labor cases on wage orders (Guidelines governing Labor Relations

(d) Those issues which had already been brought to