MODULE: 6

THE WORKPLACE

THE RIGHT TO DUE PROCESS

In a broad sense, due process is interpreted here as the right to be treated fairly, efficiently and
effectively by the administration of justice. The rights to due process place limitations on laws
and legal proceedings, in order to guarantee fundamental fairness and justice. Due process is
interpreted here as the rules administered through courts of justice in accordance with established
and sanctioned legal principles and procedures, and with safeguards for the protection of
individual rights. The rules applicable to the administration of justice are extensive and refer
to, inter alia, fair trial, presumption of innocence and independence and impartiality of the
tribunal. In most Conventions, the various rules are included in several articles. As this handbook
focuses on a variety of Conventions, four elements of due process are discussed: a) quality in
terms of administration of justice; b) quality in terms of protection of the rights of the parties
involved; c) efficiency; and d) effectiveness. As due process rights are traditionally known
among human right experts to centre on the right to a fair trial and the right to an effective
remedy, the first three elements are discussed under the heading of fair trial, while effectiveness
is discussed under the right to an effective remedy.

A. The right to a fair trial

The right to a fair trial does not focus on a single issue, but rather consists of a complex set of
rules and practices. The right to a fair trial is interpreted here as the rules administered through
courts of justice in accordance with established and sanctioned legal principles and procedures,
and with safeguards for the protection of individual rights. The rules applicable to the
administration of justice are wide and refer to, inter alia, a fair and public hearing, the
presumption of innocence and the independence and impartiality of the tribunal.
The importance of these rights in the protection of human rights is underscored by the fact that
the implementation of all human rights depends upon the proper administration of justice.
Whenever a person’s rights are interfered with, she/he can only defend herself/himself
adequately if she/he enjoys an effective recourse to due process.

B. The right to an effective remedy

The right to an effective remedy when rights are violated is itself a right expressly guaranteed by
most international human rights instruments. The international guarantee of a remedy implies
that a state that has violated a human right has the primary duty to afford an effective remedy to
the victim. International tribunals and supervisory bodies play a subsidiary role; they only come
into play when the state fails to afford required redress. The role of these international bodies,
however, is important in protecting the integrity and consistency of the human rights system.
Absence of an effective remedy can create a climate of impunity, particularly when states
intentionally and constantly deny remedies.

Right to Self-Organization

1.What is Right to self-organization?

It is the right of workers and employees to form, join or assist unions, organizations or
associations for purposes of collective bargaining and negotiation and for mutual aid and
protection. It also refers to the right to engage in peaceful concerted activities or to participate in
policy and decision-making processes affecting their rights and benefits.

2.What is Workers’ Association?

A workers’ association means any group of workers, including ambulant, intermittent, self-
employed, rural workers and those without definite employers, organized for mutual aid and
protection of its members or for any legitimate purpose other than collective bargaining.

3.Who may join a labor organization or workers’ association?

The following may join a labor organization:

 a) all employees employed in commercial, industrial and agricultural enterprises and in

religious, charitable, medical or educational institutions whether operating for profit or
not;
 b) government employees in the civil service;
 c) supervisory personnel;
 d) security personnel; and,
 e) aliens with valid working permit provided there are nationals of a country which grants
the same or similar rights to Filipino workers as certified by the Department of Foreign
Affairs (DFA).

4.Is there a required number of workers in an establishment for a union to be formed?

None, provided that the required 20% membership of the bargaining unit is complied with.

5.How do labor organizations and workers’ associations become legitimate?

Federation, national union or industry or trade union center or an independent union and
workers’ associations become legitimate upon issuance of the certificate of registration by the
Department of Labor and Employment (DOLE).

6.What are the rights of legitimate labor organizations?

A legitimate labor organization shall have the following rights:

  to act as a representative of its members for collective bargaining;
 to be certified as the exclusive representative of all the employees in an appropriate
collective bargaining unit for collective bargaining;
 to be furnished by the employer, upon written request, with annual audited financial
statements within 30 calendar days from date of receipt of the request, or within 60
calendar days before the expiration of the existing CBA, or during the collective
bargaining negotiation;
 to own property, real of personal, for the use and benefit of the labor organization and its
members; and
 to sue and be sued in its registered name; and (6) to undertake all other activities to
benefit the organization and its members, and other projects not contrary to law.

7.How are locals/chapters of federation or workers association created?

A duly registered federation or national union may directly create a local/chapter by issuing a
charter certificate indicating the establishment of the local/chapter. a duly registered workers’
association may also charter any of its braches upon filing of the documents prescribed in
chartering and creation of a local/chapter.

8.When does a local\chapter acquire legal personality?

The local/chapter shall acquire legal personality only for purposes of filing a petition for
certification election from the date the duly registered federation or national union issued a
charter certificate.

The local/chapter shall be entitled to all other rights and privileges of a legitimate labor
organization upon the submission of the following:

 charter certificate
 the names of the local/chapter’s officers, their addresses, and the principal office of the
local/chapter; and
 the chapter constitution and by-laws is the same as that of the federation, this fact shall be
indicated accordingly.
The Genuineness and appropriate execution of the supporting requirement shall be certified
under oath by the secretary or treasurer of the local/chapter and attested to by its president.

9.When may the Regional or BLR Director Inquire into the financial activities of a
legitimate labor organization?

The regional or BLR Director may inquire into the financial activities of any legitimate labor
organization and examine their books of accounts and other records to determine whether they
are complying with the law and the organization’s constitution and by-laws upon the filing of a
request or complaint for the conduct of an accounts examination by any member of the labor
organization, supported by the written consent of at least twenty (20%) percent of its total
membership ( Art. 274 of the Labor Code, as amended).
10.What are the grounds for the cancellation of union registration?

The grounds for the cancellation of union registration are:

a) misrepresentation, false statement or fraud in connection with the adoption or ratification of

the constitution and by-laws or amendments thereto, the minutes of ratification, and the list of
members who took part in the ratification;

b) misrepresentation, false statement or fraud in connection with the election of officers, minutes
of election of officers, and the list of voters; and

c) voluntary dissolution of the members. However, at least 2/3 of its general membership should
vote to dissolve the organization in a meeting called for that purpose and that the application to
cancel the registration is submitted by the board of the organization. It shall be attested to by the
president.

11.Who may file an intra/inter union complaint or petition?

Any legitimate labor organization or its concerned member(s) may file a complaint or petition
involving intra/inter-union disputes or issues. When the issue involves the entire membership of
the labor organization, the complaint or petition shall be supported by at least thirty percent
(30%) of its members.

Understanding Management Prerogatives

Management prerogative is one of the most basic, more so powerful doctrine every employer
should fully understand. Under the said doctrine, every employer has the inherent right to
regulate, according to his own discretion and judgment, all aspects of employment, including
hiring, work assignments, working methods, the time, place and manner of work, work
supervision, transfer of employees, lay-off workers, and discipline, dismissal, and recall of
employees. The only limitations to the exercise of management prerogative are those imposed by
laws, principles of equity and substantial justice.
While Philippine Labor Law imposes many obligations upon the employer, it likewise protects
employer’s rights to expect from its employees not only good performance, adequate work, and
diligence, but also good conduct and loyalty. In fact, the Labor Code does not excuse employees
from complying with valid company policies and reasonable regulations for their governance and
guidance.
On the contrary, our Labor Code (Code) states that all doubts in the implementation and
interpretation of the provisions of the Code, including the implementing rules and regulations,
shall be resolved in favor of labor.
MODULE 7
The Firm and the Laborers

What is sexual harassment?

Sexual harassment is unwelcome sexual behavior that’s offensive, humiliating or intimidating. It

can be written, verbal or physical, and can happen in person or online.

Both men and women can be the victims of sexual harassment. When it happens at work, school,
it may amount to sex discrimination.

What does it include?

Sexual harassment can include someone:

 touching, grabbing or making other physical contact with you without your consent
 making comments to you that have a sexual meaning
 asking you for sex or sexual favors
 leering and staring at you
 displaying rude and offensive material so that you or others can see it
 making sexual gestures or suggestive body movements towards you
 cracking sexual jokes and comments around or to you
 questioning you about your sex life
 insulting you with sexual comments
 committing a criminal offence against you, such as making an obscene phone call,
indecently exposing themselves or sexually assaulting you
How sexual harassment can affect you

If you’re being sexually harassed, you might:

 feel stressed, anxious or depressed

 withdraw from social situations
 lose confidence and self-esteem
 have physical symptoms of stress, such as headaches, backaches or sleep problems
 be less productive and unable to concentrate.
What can you do?

No one deserves, or asks, to be sexually harassed. Everyone has the right to work and live in an
environment that’s free from harassment, bullying, discrimination and violence. Sexual
harassment is illegal (under the Sex Discrimination Act 1984).
Here are some things you can do:

Talk to the offender

You can try resolving the situation quickly yourself by explaining to the person who is harassing
you that their behavior is unwanted.

Be informed

If you’re being harassed at work, school, find out what their policies and procedures are for
preventing and handling sexual harassment.

Keep a diary

Document everything that happens, including when it occurred, the names of any people who
saw what happened, and what you've done to try to stop it.

Save any evidence

Keep text messages, social media comments, notes and emails. This evidence can help if you
make a complaint.

Get external information and advice

For work situations, check Law stuff to find the union representing your industry. They can give
you advice on your options and your rights. Someone can also act on your behalf if you don't feel
comfortable pursuing the issue alone. They should respect your confidentiality. If you’re
concerned about this, ask them what their official privacy policy is.

Tell someone

Sexual harassment isn’t something you need to deal with on your own. In the workplace, it might
be worth talking to your HR manager, who will be able to help you decide what to do. You
might also want to talk to a trusted friend or family member about what's going on.

Examples of Discrimination in the Workplace: Everything You Need to Know

Some examples of discrimination in the workplace include when an employer, supervisor, or co-
worker treats another employee unfairly based on religion, age, ethnicity, gender, disability, skin
color, or race. This goes beyond workplace behavior to also encompass hiring and firing
practices. To get a firm grasp of what this entails, it's best to know a few examples of
discrimination in the workplace. This enables employees to know their rights and employers to
avoid any situations involving discrimination.
There are essentially two types of discrimination. The first type is direct liability. In this case of
discrimination, an employer is actively engaged in discrimination from the top down, so much as
to promote an organization of discrimination. The other type of discrimination is vicarious
liability. This is when an employee discriminates against another employee, only the employer
has no evidence that he or she took reasonable or necessary steps to curb the behavior.

Understanding the Differences Between Discrimination, Bullying, and Harassment

One of the hardest parts of identifying discrimination is differentiating it from bullying and
harassment. To understand it better to improve workplace relations, consider these definitions:
 Discrimination occurs when someone gets subpar treatment based on one of his or her
protected characteristics. This can occur even when the offending behavior isn't
necessarily directed at a single person.
 Harassment occurs when an employee endures offensive, intimidating, threatening, or
humiliating actions or comments because of one of his or her protected
characteristics. Sexual harassment is one branch of this, and it happens when an
employee is the subject of unwelcome attention or advances of a sexual nature.
 Bullying is a behavior that affects an employee's mental health and physical health as a
result of unreasonable, repeated behavior.

What Are the Types of Discrimination in the Workplace?

As outlined in Title VII, there are numerous types of discrimination that employers and
employees need to know:
 Religious: No employer can discriminate against a person based on religious beliefs or
the beliefs of a spouse. This includes organized religions or sincere spiritual beliefs. This
can also mean that an employer has to accommodate the religion, as long as it doesn't
interfere with company practices.
 Age: Employers cannot treat an employee unfairly based on age. This is typically seen in
older workers, and the Age Discrimination Act of 1967 makes it illegal to discriminate on
workers over age 40.
 Gender: Also known as sexual discrimination, this type occurs when an employer treats a
person differently based on gender. This can include gaps in pay for two sexes in the
same position, as well as the protection of people with gender identity issues.
 Pregnancy: Pregnancy must be dealt with like any type of nonpermanent illness. Treating
it otherwise constitutes discrimination.
 Racial: Employers may not base decisions in the workplace or hiring process based on a
person's race.

What Are Some Effects of Discrimination in the Workplace?

There is a seemingly endless number of behaviors that meet the definition of discrimination in
the workplace when they're used as a result of someone's personal characteristics or an employee
reporting the incident to management. Here are a few of the most common:
 Denial of employee compensation or benefits
  Denial of disability leave, maternity leave, or retirement options
 Termination
 Loss of shifts or less desirable shift
 Suggestion of a preferred candidate on a job advertisement based on personal
characteristics
 Denial of use of company facilities or benefits
 Favoritism when issuing promotions or company restructuring
 Exclusion of candidates from the hiring process
 Off-color comments or inappropriate jokes that cause stress to an employee
Contractualization: Which meaning do we mean?

Contractualizaton is a term not found in the Labor Code and not even in the rules and regulations
issued by DOLE. Contractualization therefore has no official or standard definition. The loud
public talk to ban contractualization suggests the need to be clear about its different meanings.
One meaning is “endo” or end of contract. The other is “deceptive contractorship”. Both are
difficult to handle because a wrong action against them can harm business. And what harms
business ultimately harms labor by way of withheld investments and decreased job opportunities.
The announced plan to ban contractualization has merits if it means enforcement of the Supreme
Court ruling in 1997 in a case involving a well-known food manufacturing company. The ruling
struck down as “contrary to public policy” the company’s practice of employing workers batch-
by-batch; each batch stays for only five months, to be replaced by the next five-month batch. A
quick way to explain this is by quoting from the book Everyone’s Labor Code:
“The court  emphasized that fixed-term employment will not be considered valid, where, from
the circumstances, it is apparent that periods have been imposed to preclude acquisition of
tenurial security by the employee. If it is shown that that is the purpose of the contract, then it
will be declared null and void from the beginning or ab initio. Such periods should be struck
down or disregarded as contrary to public policy…”
Following this summarization of the Supreme Court ruling, the author explains: “What [this
court ruling] struck down immediately is the all-too-common practice of hiring operating
personnel batch-by-batch, each batch under a five-month contract. At the end of the period, the
workers will be replaced by the next five-month employees because of “E.O.C.” (end of contract
or “endo”). The ruling has the effect (hopefully) of making “5-5-5” and “E.O.C.” things of the
past in numerous workplaces.” (2012 edition, p.327; 2015 edition, p. 329)
Unfortunately, after the court’s ruling came out on December 12, 1997, contractualization (a
term coined and popularized probably by workers) did not stop. Rather, it spread and multiplied.
As far as I know, no DOLE advisory has been issued to inform or to warn employers and
employees about the court’s declaration of nullity of the “endo” scheme. And  I am not sure
whether the labor inspectors (now called LLCO – labor law compliance officer) have been
alerted or instructed to enforce the ruling. Note that the ruling was issued nineteen years ago.
Endo” is an abusive or corrupted use of the law. But hiring of employees on temporary basis is
not altogether illegal where such kind of hiring is really needed by the business. The law allows
employment in a project with pre-agreed termination date as well as seasonal employment, and
fixed-period employment. Even the hiring of temporary replacements of striking employees is
allowed.
The other meaning of contractualization is in the form of “deceptive contractorship”. It is done
by hiring a person and making him/her work as an employee but treating him/her as a
“contractor”.
A contractor is not an employee and therefore not covered by the Labor Code. Employee status,
on the other hand, puts the worker under the Labor Code’s protective umbrella. Supervision or
control of the manner, means and details of work execution and even of the worker’s conduct at
the workplace, is the hallmark of an employment relationship. By considering an employee as a
contractor, the hirer is able to evade the obligations of an employer, such as the SSS registration,
payment of Labor Code employment benefits, e.g., holiday pay, 13th month pay, etc.
But contractorship in contrast to employment is not necessarily wrong. Contractorship is often a
legitimate pursuit of a particular line of business. The contractor should be government-
registered, adequately capitalized to operate independently, and capable of supervising its
employees who render a particular line of work to client-contractees. That is the essence of
independent contractorship. The contractor, as employer, and its workers, as its employees, are
covered by the Labor Code. All the obligations of an employer are on the shoulders of the
contractor because a legitimate contractor is himself/itself an employer.
The problem is that there are people who hire people but label them as “contractors” although in
fact they are employees. The worker, badly in need of a job, has no choice, but to sign a
contractorship contract. In effect, the employee becomes “contractual”.  This is “deceptive
contractorship”. It is as reprehensible as the “endo contractualization” but much harder to
delineate. To draw the dividing line between employment relationship and contractorship is not
at all easy. The difficult task has “bedevilled” the court for decades.
Deceptive contractorship should not be mistaken for independent contractorship which is
perfectly legal. This is entrepreneurship, protected and supported by law. It promotes
specialization and competition. Striking against deceptive contractorship might mistakely
dampen or kill entrepreneurism. (This unwanted damage is the reason, incidentally, why the law
on so-called “labor-only contracting” is ill-conceived and retrogressive. It invalidates a two-way
business contract and forcibly makes the client-contractee the employer of the contractor’s
employees.)
In the 1800s entrepreneural enterprises – small and medium contractors and subcontractors –
brought America to the road to progress. Rather than discouraging and punishing small
contractors, we should help them grow.