NOTES ON LABOR RELATIONS

Labor Relations - is part of labor legislation which governs the relationship between the employer and
employee, hence it is only applicable if there exists employer-employee
relationship

Who is an EMPLOYER?

Under Art. 219 (E), Employer includes any person (natural or juridical) acting in the interest of an
employer, directly or indirectly.

NOTE:

“Acting in the interest of an employer” - pertains more on the hiring process

“Indirectly” - pertains to hiring through job contracting

GR: The said term (Employer) shall not include any labor organization or any of its officers or agents.

Exception to the GR: When these labor organization is acting as employer in the conduct of its normal
operations.

Who is an EMPLOYEE?

According to Art. 219 (F), Employee includes any person in the employ of an employer. The term shall
not be limited to the employees of a particular employer, unless the Code explicitly states. It shall
include any individual whose work has ceased as a result of or in connection with any current labor
dispute of because of any unfair labor practice if he has not obtained any other substantially equivalent
and regular employment.

NOTE:Only a natural person can be an employee.

Employer-Employee Relationship Test

Four-Fold Test- the Supreme Court created a standard in order to determine the existence of employer-
employee relationship

Elements:

1. Right to hire
2. Payment of wages
 3. Power of dismissal
4. Power of Control(the most important determining factor)– the right to control not only the end
to be achieved but also the means to be used in reaching such end. Hence, absent of control,
there shall be no employer-employee relationship.

Control test - is premised on whether the person for whom the services are performed reserves the
right to control both the end achieved and the manner and means used to achieve that
end.

 The test merely calls for the existence of the right to control and not necessarily the
exercise thereof. Hence, it is not essential that the employer actually supervises the
performance of duties by the employee. It is enough that the employer has a right to
wield power.

Indirect control – using a contractor as an instrument to indirectly control employees. The decisions are
subject to approval of the employer

 In Labor contracting – the right to wield power means that the employer can overturn the
decision of the labor contractor. The ultimate power on how the means to be carried out
and even in the area of disciplining the employees rest on the principal (employer). Even in
the absence of the other 3 elements, one can still conclude the existence of employer-
employee relationship, if the important element of control is present.
 In labor-only contracting, the labor contractor may exercise the powers of hiring, payment
of wages and dismissal but the power of control is lodged with the principal and for this
reason, the principal, not the labor-only contractor, is considered by law as the employer of
the workers.

Independent Contractors vs Legitimate Contractors

-No need to register to DOLE -Must register to DOLE
-Individual does the work themselves -Contractors do not do the work. The employees do the work

The employee must prove employer-employee relationship before alleging other causes of action for
the Labor Code to be applicable.

Substantial evidence is required not only bare allegations since the determination of employer-
employee relationship is a question of fact.

The employee must present evidence of employment as follows:

 Identification card
 Payslip
 SSS remittances
 PAG-IBIG or PHILHEALTH remittances
 Show cause notices
 Insurance policy for medical and death benefits
 In the absence of these, affidavit of witnesses who will attest the fact of
employment will suffice
  Affidavit of Employment by employee – statement under oath

Once the employer-employeerelationship is established, the burden to disprove illegal dismissal or

non-payment of benefits will be on the part ofthe employer.

IF there is no ER-EE relationship, EE has no cause of action and case is dismissed. The Labor Arbiter may
dismiss the case for lack of jurisdiction. The case may be filed to the MTC or RTC.

Supreme Court on Rule 45 Petition for review on CERTIORARI on the recognized exceptions:

a. When the findings are grounded entirely on speculation, surmises or conjectures

b. When the inference made is manifestly mistaken, absurd or impossible
c. When there is grave abuse of discretion
d. When the judgment is based on misapprehension of facts
e. When the findings of fact are conflicting
f. When in making its findings the court of appeals went beyond the issues of the case,
or its findings are contrary to the admissions of both the appellant and the appellee
g. When the findings are contrary to the trial court
h. When the findings are conclusions without citation of specific evidence on which
they are based
i. When the facts set forth in the petition as well in the petitioner’s main and reply
briefs are not disputed by the respondent
j. When the findings of fact are premised on the supposed absence of evidence and
contradicted by the evidence on record
k. When the CA manifestly overlooked certain relevant facts not disputed by the
parties, which, if properly considered, would justify a different conclusion

Classification of Employees

Article 295 of the Labor Code:

The provisions of written agreement to the contrary notwithstanding and regardless of the oral
agreement of the parties, an employment shall be deemed to be regular where the employee has been
engaged to perform activities which are usually necessary or desirable in the usual trade or business of
the employer, except where the employment has been fixed for a specific project or undertaking the
completion or termination of which has been determined at the time of the engagement of the
employee or where the work or service to be performed is seasonal in nature and the employment is for
the duration of the season.

Regular Employee

1. Employee has been engaged to perform activities which are usually necessary or
desirable in the usual business or trade of the employer.
 2. Employment has not been fixed for a specific project or undertaking, the completion or
termination of which has been determined at the time of the engagement of the
employee.

3. Work or service to be performed is not seasonal in nature and the employment is for
the duration of the season.

4. Project employees with no project employment contract or when contract is vague

(Isidro Quebral, et al., v. Angbus Construction Inc. (Discussed during the class)

5. Employee who is allowed to work after a probationary period shall be considered a

regular employee.

What does usually necessary or desirable in the usual trade or business of the employermean?

The Department of Labor usually describe it as relevant or related to the business or trade.
These are activities that when do not exist, the business cannot function.

It necessarily follows that when the employer controls the conduct of the work of the employee,
then the activity in which the employee performs is necessary or desirable in the usual trade or business
of the employer.

Note: The book provides two kinds of regular employees:

1. Regular Employees by Nature of Work

2. Regular Employees by Year of Service

But during discussion, Atty. said that in truth, there is only one kind of regular employee - by
Nature of Work since employees may work beyond a year but are project employees or casual
employees.

Two Categories of Employees paid by results

1. Whose time and performance are supervised

2. Whose time and performance are unsupervised

Piece-rate employees

 Paid based on time and motion (TAM) studies determined by the labor secretary or
submitted by the employer to the secretary for his approval
  In the absence of TAM, based on the applicable daily minimum wage determined by the
RTWPB (Regional Tripartite Wage & Productivity Boards).

Note: Minimum wage will not apply to those paid by results or paid by commission.

Note: Supervised piece-rate employees are regular employees because they perform activities
that are necessary or desirable in the usual trade or business of the employer and there is also
control. (Legal basis – Mark Roche International and/or Eduardo Dayot and Susan Dayot v. NLRC
et al., G.R. NO. 123825, August 31, 1999.)

Contracts cannot prevail over the provision of Article 295 of the Labor Code

In Innodata Knowledge Services, Inc. v. Socorro D’ Marie T. Inting, et al., G.R. 211892, December
6, 2017, the Supreme Court held that employment contract is vested with public interest. Therefore, the
contract must yield to the common good. It is placed on a higher plane than ordinary contracts and thus,
subject to the police power of the State.

When can be terminated?

1. Just Causes
2. Authorized Causes, after compliance of due process

Security of Tenure – Upon hiring and can only be terminated for just and authorized cause and after
compliance with due process.

Note: It is not the period or the number of days that will determine on whether an employee is regular
or not, it is the nature of the activity by which the employee is engaged to perform.

******

Project Employment

Exception of regular employment.

Project Employee

1. Performing an activity which is usually necessary or desirable in the usual trade or business of
the employer.
2. But for a definite period

Things to remember:

1. Reduce employment contract into writing

2. In the contract, it must be specified the nature of the project and the duration of the project.
3. Employee must be appraised of the contract, terms and conditions of the contract, duration and
scope of the project.
 4. Notify DOLE of the termination due to the termination of the project.

Principal test for determining whether particular employees are properly characterized as “project
employees

1. WON employees were assigned to carry out specific project or undertaking

2. Duration and scope of which were specified at the time the employees were engaged for the
said project.

Two types of Project Employment(GMA Network, Inc. v. Carlos P. Pabriga, et. al)

1. Particular job or undertaking that is within the regular or usual business of the employer but
which is distinct and separate and identifiable from other undertaking in the company. (ex.:
particular construction job of a construction company)
2. Particular job or undertaking that is not within the regular business of the company. ( ex.: when a
company constructs a building but does not hire a constructor or construction company)

When can be terminated?

1. Termination of the project

2. Just causes
3. Authorized causes, After compliance of due process

Security of Tenure –Throughout the duration of the project/undertaking.

A project employee becomes regular

1. When the employee is continuously rehired (as opposed to intermittent) by the same employer
for the same task or nature of task. (since this would mean that the employee is performing a
task which is vital, necessary and indispensable to theusual trade or business of the employer
and not just a mere project)
2. No project employment contract - employee has been engaged to perform activities which are
usually necessary or desirable in the usual trade or business of the employer.
3. Project employment contract is vague.
4. Employer fails to report to DOLE within 30 days upon completion of the project

Upon Termination of the Project

1. No notice of dismissal is needed.

2. Employer is required to report to DOLE as to the fact of termination due to the termination of
the project

There is no need to pay separation pay since the termination is legal and valid. Separation pay is only
given if the employees were illegally dismissed.

Indicators of Project Employment

 1. Duration of the specific/identified undertaking is determinable.
2. Duration is defined in an employment agreement and is made clear to the employee at the time
of the hiring.
3. Work/service is in connection with the particular undertaking.
4. While not engage or awaiting engagement is free to offer his services to other employers
5. Termination of employment due to termination of the project is reported to DOLE within 30
days (D.O 19, Sec.6.1)
6. An undertaking in the employment contract by the employer to pay completion bonus.

Purpose of Employment Agreement

1. As evidence that it is a project employment

2. Reportorial to DOLE
3. Data for unemployment statistics
4. Policy Implementation

Wage Increase

The principal or client will bear the salary differential and their contract shall be deemed
amended.

NOTE: Regarding submission of the report upon termination of project employment, since it is
mandatory, if the employer has not submitted, there is a presumption that the employee is deemed not
a project employee. On the other hand, even if there is submission of said report to DOLE but there is no
project employment, the employees are deemed regular employees instead of project employees.

*****

Seasonal Employment

Exception to regular employment.

During off season/in between season

- Not separated from service in such period

- On leave without pay until reemployed and can find temporary employment

In regard to season workers, the employer-employee relationship is not severed during off-season but
merely suspended.

When season comes

- Required to return to work and failure to do so would be considered as abandonment of work.

(can be ground for termination – gross and habitual neglect of duty)
- Employer must rehire the employees and failure to do so would be considered illegal dismissal
(unless there is a just or authorized cause)
When can be terminated?

1. Just causes
2. Authorized causes, After compliance of due process

Security of Tenure – During the season.

At the end of the season

- No need to send notices since they are already aware of the season.

*****

Casual Employment

Exception to regular employment.

Characteristics of Casual Employment

1. Not regular, project or seasonal

2. There is an activity of the employer in which worker is employed
3. Employee has at least rendered one year of service. (during the discussion, atty. said in truth
one year of service is not one of the characteristics since casual employment period may be less
than 1 year or more than 1 year, what determines the employment is the existence of the
activity)
4. Activity still exists

Nature of job, work or service

- Not usually necessary or desirable in the usual trade or business of the employer but merely
incidental to trade or business of the employer.
- For a definite period (made known to the employee at the time of the engagement)

Two Types of Casual Employment

1. Employee is working less than a year

2. Employee is working for more than a year and the activity still exist

*Note: According to Atty. there is only one type of casual employment since it would be the existence of
the activity that will determine the type of the employee but for bar purposes answer the two types of
casual employment.

The one (1) year period is fixed by law to prevent abuses by the employer by preventing the
casual employees from enjoying the benefits of regular employees, otherwise they will become casual
employees forever.
The employee has been performing the job for at least one (1) year, even if the performance is not
continuous but intermittent, the law deems the repeated and continuing need for its performance as
sufficient evidence of the necessity if not indispensability of that activity to the business of his
employer.Hence, the employment is also considered regular, but only with respect to such activity, and
while such activity exists.The law does not provide the qualification that the employee must first be
issued a regular appointment or must first be formally declared as such before he can acquire a regular
employee status. Obviously, where the law does not distinguish, no distinction should be drawn.

Casual employees may be rehired but for a different and distinct activity. Otherwise it would circumvent
their rights to security of tenure.

When can be terminated?

1. Cessation of the activity

2. Just causes
3. Authorized causes, After compliance of due process

Security of Tenure – Throughout the duration of the activity.

Upon cessation of activity

Notice must be sent to inform the casual employee as to the fact of termination.

The contract must not necessarily be made in writing as it would not affect the employment (casual
employees can never become regular according to Atty), however this is proof that they are hired for an
activity.

Distinguish a Project Employee from a casual employee

Project Employment Casual Employment
1. Hired for a particular project for a definite or 1. Hired for a specific activity but duration is not
determinable time. predetermined.

2. Notice of termination of project is not 2. Notice of termination of activity is required.

required.

3. Could be performing a job employee has 3. Incidental to the business

been engaged to perform activities which are
usually necessary or desirable in the usual
business or trade of the employer

4. Need to notify DOLE 4. No need to notify DOLE

*****
 Fixed Term Employment

Exception to regular employment.

The employer and the employee can stipulate the term of the employment especially theperiod.

Basis: Principle of Freedom of Contract as decided in Brent School Inc. V. Zamora

Requisites of Fixed Term Employment

1. The fixed period was knowingly and voluntarily agreed upon by the parties without any force,
duress or improper pressure or any other circumstances vitiating consent.
2. Satisfactorily appears that the employer and the employee dealt with each other on more or
less equal terms with no moral dominance exercised by the employer.
3. Employee has been engaged to perform activities which are usually necessary or desirable in the
usual trade or business of the employer.

When can be terminated?

1. Expiration of employment contract

2. Just causes
3. Authorized causes, After compliance of due process

Security of Tenure – Throughout the duration set in the employment contract.

Note: Employment after the expiration of the term of his fixed term employment is already regular.
Repeated hiring of fixed term shows bad faith on the part of the employer and employee is
considered regular.

Valid Fixed Term Employment

1. Overseas employment contract

2. Officers of the school (ex.: deans, assistant deans, college secretary, principal and other
administrative officers)
3. President, executive vice president, or vice president of a corporation who are elected for
specific term.
4. Replacement of a school teacher who went on leave (Mercado et al. v. AMA)

Project employment Fixed period/fixed term employment

The employee’s services are coterminous with Duration of employment is agreed upon by the
the project. parties.
The employment may, in fact, last for more than
a year, depending on the needs or circumstances
of the project.
The duration of a fixed-term employment agreed upon by the parties may be any day certain, which is
understood to be "that which must necessarily come although it may not be known when."  The decisive
determinant in fixed-term employment is not the activity that the employee is called upon to perform
but the day certain agreed upon by the parties for the commencement and termination of the
employment relationship.

Cognizant of the possibility of abuse in the utilization of fixed-term employment contracts, we

emphasized in Brent that where from the circumstances it is apparent that the periods have been
imposed to preclude acquisition of tenurial security by the employee, they should be struck down as
contrary to public policy or morals.We thus laid down indications or criteria under which "term
employment" cannot be said to be in circumvention of the law on security of tenure, namely:

1) The fixed period of employment was knowingly and voluntarily agreed upon by the parties
without any force, duress, or improper pressure being brought to bear upon the employee and
absent any other circumstances vitiating his consent; or

2) It satisfactorily appears that the employer and the employee dealt with each other on more
or less equal terms with no moral dominance exercised by the former or the latter.

These indications, which must be read together, make the Brent doctrine applicable only in a few special
cases wherein the employer and employee are on more or less in equal footing in entering into the
contract. The reason for this is evident: when a prospective employee, on account of special skills or
market forces, is in a position to make demands upon the prospective employer, such prospective
employee needs less protection than the ordinary worker. Lesser limitations on the parties’ freedom of
contract are thus required for the protection of the employee.

PROBATIONARY EMPLOYMENT PERIOD

 Governed by Article 296, LCP
 Purpose: Exercise of Management Prerogative (Right to Hire and Select) - to give the employer a
better chance to select the best and qualified employees.
 This is not a type of employment but a period for the employee to undergo a trial period before
they become regular employees.

3 Important Items in Probationary Employment:

1. The employee must be appraised of the standards he/she has to pass at the time of hiring,
otherwise, he/she will become a regular employee.

KINDS OF STANDARDS:
1. QUALITATIVE
 Hinged on the quality of work of the employee
 2. QUANTITATIVE
 Quantity specification, example – sales quota
2. The employee must be aware on how and when he/she is being assessed or evaluated.
3. The probationary employment contract must be agreed in writing.

NOTE:

If the employee was not appraised or there is no reasonable standard contained in the contract; and
when the employee is allowed to work beyond the six months period – in these cases, the employee is
deemed regular.

General Rule: Probationary period is not more than 6 months.

Exceptions:
a. If covered by an apprenticeship agreement stipulating a longer period.
b. When the parties to an employment contract may agree otherwise, such as when the same is
established by company policy or when the same is required by the nature of work to be
performed by the employee.
o Case: Buiser et al. vs Leogardo – company engaged in advertisement and publication in
the Yellow pages of PLDT Telephone Directories, 18 months of probationary
employment is allowed; publication of solicited ads are only made a year after the sale
has been made and only then will the employer be able to evaluate the efficiency,
conduct and selling ability of the employee.
c. A probationary period of not more than 3 years in the case of school teaching personnel. (Non –
Teaching personnel follows 6 - months probationary period)
d. The employer granted extension (ex gratia) after the employee failed to pass the standards
provided in the probationary employment contract.
o The employee must request in writing and the employer must respond in writing on the
extension, before entering another probationary contract, otherwise, if they will go for
the second probationary contract and the employee is terminated afterwards, the
employee may go to the labor court and file a case for illegal dismissal alleging that he
has become a regular employee. – Substantial evidence is needed.

COMPUTATION OF THE SIX-MONTH PERIOD

 First day shall be excluded and the Last Day shall be included.
o Article 13 of the Civil Code is used.

CONFLICT BETWEEN PROBATIONARY STATUS and FIXED TERM EMPLOYMENT

 Probationary contract will prevail over fixed term contract because Probationary contract is
provided by law while Fixed term is provided by the Civil Code – Social legislation law prevails
over contract.
(Case: Unibersidad de Sta. Isabel vs Sambajon)

TWO ASPECTS OF DUE PROCESS IN TERMINATION OF PROBATIONARY EMPLOYEES

 1. Reasonable standards made known to the employee at the time of engagement – how to pass,
how he/she is evaluated, etc.; absence of this, the employee becomes regular
2. Employee, after an evaluation, must be informed that he/she failed to qualify the standards
before the expiration of probationary period. – failure to provide notice, the employee will be
deemed regular after the six months period

NOTE:
Difference of absence of due process between probationary employee vs regular employee – The
probationary employee will be deemed regular, WHILE for the regular employee, such termination will
be valid but the employer will be sanctioned to pay nominal damages as a form of penalty.

GROUNDS of TERMINATION of PROBATIONARY EMPLOYEE

1. Just Cause (no separation pay is awarded)
2. Authorized Cause (separation pay is awarded)
3. Failure to qualify the standard laid down in the probationary employment contract (no
separation pay is awarded since this falls down under just cause – other analogous cases)
- laid down under the case: Robinson’s Galleria vs Irene R. Sanchez

SECURITY OF TENURE

THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES

ARTICLE XIII - LABOR

Section 3. The State shall afford full protection to labor, local and overseas, organized and unorganized,
and promote full employment and equality of employment opportunities for all.
It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations,
and peaceful concerted activities, including the right to strike in accordance with law. They shall be
entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate
in policy and decision-making processes affecting their rights and benefits as may be provided by law.
The State shall promote the principle of shared responsibility between workers and employers and the
preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their
mutual compliance therewith to foster industrial peace.
The State shall regulate the relations between workers and employers, recognizing the right of labor to
its just share in the fruits of production and the right of enterprises to reasonable returns to
investments, and to expansion and growth.

Labor Code:ART. 3. Declaration of Basic Policy.2 – The State shall afford protection to labor, promote full
employment, ensure equal work opportunities regardless of sex, race or creed, and regulate the
relations between workers and employers. The State shall assure the rights of workers to self-
organization, collective bargaining, security of tenure, and just and humane conditions of work.

 It is a RIGHT guaranteed under the Constitution and the Labor Code that no worker shall be
dismissed except for just or authorized causes and after due process.
 It serves as a limitation to Management Prerogative.
  Can it be waived?Yes, provided that such waiver must be clear, categorical, knowingly and
intelligently done by the employee to be valid.

ACTS OF MANAGEMENT (other than Illegal Dismissal) THAT ARE RECOGNIZED AS THREATS
TOSECURITY OF TENURE:
1. CONSTRUCTIVE DISMISSAL
2. PREVENTIVE SUSPENSION

CONSTRUCTIVE DISMISSAL
 Exist when there is cessation of work because continued employment is rendered impossible,
unreasonable and unlikely, when there is a demotion in rank or diminution of pay or both; or
when a clear discrimination, insensibility or disdain by an employer becomes unbearable to the
employee.
 Test: whether a reasonable person in the employee’s position would have felt compelled to give
up his position under the circumstance.
 The exercise of management prerogative to transfer may lead to constructive dismissal –
employer must demonstrate that the transfer is not unreasonable, inconvenient, or prejudicial
to the employee or a façade to get rid of the employee and that the transfer does not involve a
demotion in rank or a diminution of salary and other benefits.
o Burden of Proof: Employer to prove that the employee’s transfer is not tantamount to
unlawful constructive dismissal.
 Can an employee who submitted an irrevocable resignation claim that he/she has been
constructively dismissed? YES – if the resignation is the result of surrounding circumstances
which compelled the employee to tender his/her resignation, then it is a product of constructive
dismissal.
o Irrevocable resignation doesn’t necessarily mean voluntarily executed.
o Burden of Proof: Employer to prove that the resignation was voluntarily (validly)
executed.

TWO KINDS OF CONSTRUCTIVE DISMISSAL:

1) If an act of clear discrimination, insensibility, or disdain by an employer becomes so unbearable
on the part of the employee that it would foreclose any choice except to forego continued
employment. There is cessation of work because continued employment is rendered impossible,
unreasonable, or unlikely, as an offer involving a demotion in rank and a diminution in pay.

The employee either:

i. Files an Irrevocable Resignation
 Employee allege resignation was involuntarily executed
 Employer has the Burden of Proof to prove that resignation was valid
and was voluntarily executed.
ii. Goes on AWOL
 Employer has the Burden of Proof that employee intended to severe
employment and that the necessary Notices were served.
*Under this type of constructive dismissal, if the employee wins the case, he should not ask for
reinstatement as it would not support his claim for constructive dismissal due to hostile environment.

2) When the employee is placed under floating status

 a. Floating Status for more than 6 months under Article 301 LCP
ART. 301. [286] When Employment not Deemed Terminated. – The bona fide suspension of the
operation of a business or undertaking for a period not exceeding six (6) months, or the fulfilment by the
employee of a military or civic duty shall not terminate employment. In all such cases, the employer
shall reinstate the employee to his former position without loss of seniority rights if he indicates his
desire to resume his work not later than one (1) month from the resumption of operations of his
employer or from his relief from the military or civic duty.
 After 6 months, employees are recalled to work or permanently retrenched
following the requirements of law. Failure to comply is tantamount to
dismissing the employees.
b. Maximum of 3 months of floating status of employees hired under permissible job
contracting under Sec 13 of DOLE D.O
174.https://www.dole.gov.ph/php_assets/uploads/2020/10/DO-215-20-Rule-
Amending-Section-12-of-Rule-I-Rules-Implementing-Book-VI-of-the-Labor-Code-on-
Suspension-of-Employment-Relationship.pdf

 If the agency cannot find another client and provide job, the employees are
deemed separated and are entitled to separation pay.
c. Extension of another 6 months under DO 215-2020
https://blr.dole.gov.ph/wp-content/uploads/2018/02/DO-174-17-Rules-Implementing-
Articles-106-to-109-of-the-Labor-Code-As-Amended1.pdf
  DO 215 requires employers to report to DOLE at least 10 daysbefore extending
the suspension of employment to their workers.
 Affected employees can look for alternative employment during their extended
suspension.
 If an employee will be retrenched before or after the expiration of the
extension, he/she will be entitled to separation pay.

NOTE:
In floating status –If there is no valid reason then it will also lead to illegal dismissal.

According to Atty: DO 174 and DO 215 is already creating a substantive law and should be held
unconstitutional. However it is a reasonable DO.

Demotion – considered as constructive dismissal if there is reduction in petitioner’s responsibilities and

duties, say from a supervisor to a technician.

 Valid demotion is legal and considered as a lawful exercise of management prerogative to

discipline employees.

PREVENTIVE SUSPENSION

 Disciplinary measure for the protection of the company’s property pending investigation of
alleged malfeasance, or misfeasance committed by the employee.
  Employer may place the employee concerned under preventive suspension if his/her continued
employment poses a serious and imminent threat to the life or property of the employer and
his/her co-workers.
 Preventive suspension shall not last longer than 30 days.
 Under preventive suspension, employee is not entitled to his/her wages under the Principle of
Fair Day’s Wage for a Fair Day’s Work.
o If the ground of suspension is unfounded, the employee is entitled to backwages for the
period of suspension. (Case: Gatbonton vs NLRC)
 Can the employer extend the 30day period of suspension? – YES, the worker must be paid
his/her wages; the employer must choose either Payroll Reinstatement or Actual Reinstatement
after the 30 day period should the investigation be unfinished.
 Indefinite preventive suspension and unfounded preventive suspension is tantamount to
constructive dismissal.

TWO KINDS OF PREVENTIVE SUSPENSION

1. Preventive suspension
 To protect the life or property of the employer or co-employee while the investigation is
on-going.
2. Suspension as a Form of Penalty
 Preventive Suspension may come as a form of penalty to the erring employee.
 In imposing preventive suspension as a form of penalty, it must be reasonable and
commensurate to the offense.

NOTE:
It is possible that after the preventive suspension, the employer will impose another suspension
as a form of penalty.

Illegal Preventive Suspension:

- Indefinite preventive suspension- it has been more than 30 days and no reinstatement
- Unfounded preventive suspension – no legal ground for preventive suspension

DOLE Labor Advisory No. 06 Series of 2020: Guidelines on the Payment of Final Pay and Issuance of
Certificate of Employment

TERMINATION OF EMPLOYMENT

These standards are composed of substantive and procedural. (Art. 292 (b) of the Labor Code of the
Philippines)
Art. 292 (b) Subject to the constitutional right of workers to security of tenure and their right to be
protected against dismissal except for a just and authorized cause and without prejudice to the
requirement of notice under Article 283 of this Code,the employer shall furnish the worker whose
employment is sought to be terminated a written notice containing a statement of the causes for
termination and shall afford the latter ample opportunity to be heard and to defend himself with the
assistance of his representative if he so desires in accordance with company rules and regulations
promulgated pursuant to guidelines set by the Department of Labor and Employment. Any decision
taken by the employer shall be without prejudice to the right of the worker to contest the validity or
legality of his dismissal by filing a complaint with the regional branch of the National Labor Relations
Commission. The burden of proving that the termination was for a valid or authorized cause shall rest on
the employer. The Secretary of the Department of Labor and Employment may suspend the effects of
the termination pending resolution of the dispute in the event of a prima facie finding by the
appropriate official of the Department of Labor and Employment before whom such dispute is pending
that the termination may cause a serious labor dispute or is in implementation of a mass lay-off.

1. Substantive
- means there must be a valid and legal ground for termination(just or authorized
cause)
- Since the proceedings is administrative in nature, the degree of proof required is
substantial evidence.
The settled rule in administrative and quasi-judicial proceedings is that proof beyond reasonable
doubt is not required in determining the legality of an employers dismissal of an employee, and
not even a preponderance of evidence is necessary as substantial evidence is considered
sufficient.Substantial evidence is more than a mere scintilla of evidence or relevant evidence as
a reasonable mind might accept as adequate to support a conclusion, even if other minds,
equally reasonable, might conceivably opine otherwise. Thus, substantial evidence is the least
demanding in the hierarchy of evidence. (Salvador v. Phil. Mining Services)

2. Procedural (Notice Requirement)

- means that due process must be observed
- criteria of due process:
a. The first written notice to be served on the employees should contain the
specific causes or grounds for termination against them, and a directive
that the employees are given the opportunity to submit their written
explanation within a reasonable period.

“Reasonable Opportunity” means every kind of assistance that

management must accord to the employees to enable them to
prepare adequately for their defense. This should be construed
as:
 A period of at least five calendar days from receipt of the notice
to give the employees an opportunity to study the accusation
against them, consult a union official or lawyer, gather data and
evidence, and decide on the defenses they will raise against the
complaint;
  The notice should contain a detailed narration of the facts and
circumstances that will serve as basis for the charge against the
employees; and
 The notice should specifically mention which company rules, if
any, are violated and/or which among the grounds under Art.
288 is being charged against the employees.

b. After serving the first notice, the employers should schedule and conduct a
hearing or conference wherein the employees will be given opportunity
to:
(1) explain and clarify their defenses to the charge against them;
(2) present evidence in support of their defenses; and
(3) rebut the evidence presented against them by the management.

c. After determining that termination of employment is justified, the employers

shall serve the employees a written notice of termination indicating
that: (1) all circumstances involving the charge against the employees have
been considered; and (2) grounds have been established to justify the
severance of their employment.

- It is the denial of the opportunity to be heard that constitutes violation of due process.

NOTE:

Hearing is not mandatory, unless the employee requested in writing or there is a

company practice, or the circumstances required for such hearing.

Demand to pay nor confrontation before the barangay does not constitute first notice.

If there is absence in the procedural aspect (due process) the court may still declare the dismissal valid
BUT NOMINAL DAMAGES will be awarded as a form of penalty against the employer.

Nominal damages:
Just causes = not more than 30k
Authorized causes = 50k

Absence of the substantive evidence (essential) = illegal dismissal

Absence of due process = may be valid but Employer must pay nominal damages.

BURDEN OF PROOF

Pre-conditions to remember:
 1. The employee must prove first that employer-employee relationship exists and the fact of
dismissal.
2. The burden of proof now swings to the employer to prove that there is valid dismissal or there is
no employer-employee relationship. Or that there was payment of benefits.

The following are the cases where it is not the employer who has the burden of proof:

1. In illegal dismissal, after the employee establish the pre-conditions, it is then the employer who shall
have the burden of proof.

2. For a charge of ULP, it is the union or the employee who felt aggrieved, hence they have the burden
of proof for this case.

3. In case of company policy has ripened into a benefit – it is the employee who has the burden of proof

4. Non-payment of wages, overtime pay and other benefits – it is the employee who has the burden of
proof

5. In case of retirement –it is the employee who has the burden of proof if it is voluntary or optional
retirement but if it is a compulsory retirement, the employer who shall prove such case.

PRINCIPLE OF DISCRETIONARY JUSTICE

Management is encouraged to exercise its prerogative that in the imposition of penalty, the less harsh
should be imposed since termination must be the last resort. This is because even if there is just or
authorize cause in terminating the employee, the employer is not mandated to terminate such erring
employee which is clearly reflected under Art. 297 and Art. 298.

Factors to consider in applying this principle:

1. Policy must be reasonable.

2. The penalty must be commensurate to the offense.
3. Termination must be the last resort.
4. Employer must appreciate mitigating and aggravating circumstances.

Example: Length of service

- Aggravating if the employee has been vested with trust and
confidence and was with the company for a great amount of time then
committed dishonesty

Length of service and employee’s record

 - Mitigating if this was the first offense after being with the company for
how many years

DISCERNING COMPASSION DOCTRINE

- This principle gives an erring employee an amount of Php 5,000 in the form of financial
assistance based on social justice and equity (GR: Php 5,000 amount, exception equivalent to
one month pay of the employee depending on the circumstances and discretion of the court).
- applicable only to valid dismissal based on just cause – analogous causes only
- based on Principle of social justice and equity
- Sometimes referred to as Separation Pay by the Supreme Court but the proper term is “Financial
Assistance”. They are different since separation pay is provided for illegally dismissed employees
while financial assistance is for those validly dismissed.
- Purpose of Financial Assistance: To be used by the employee in looking for another work
- Requisites needed for the court to award financial assistance:
1. The dismissal was not due to serious misconduct, willful disobedience, gross and
habitual neglect of duty, fraud or willful breach of trust, commission of a crime
against the employer or his family;
2. The dismissal did not reflect on the moral character of the employee.

OVERVIEW ON JUST CAUSES AND AUTHORIZED CAUSES:

JUST CAUSES
Emanates from the part of the employee
No separation pay except applicability of
discerning compassion doctrine (financial
assistance)
Two-notice Rule: Notice to Explain, Notice of
Dismissal
Nominal damages: not more than 30k
Notice to Explain may be sent via mail (Phil.
Postal Corp.) when EE goes AWOL when personal
is not available
AUTHORIZED CAUSES
Proximate cause is the employer
There is separation pay except in case of closure
due to business reverses or bankruptcy and when
there is an exercise of the power of imminent
domain
Twin-notice Rule: Notice to EE and DOLE
(simultaneously)
Nominal damages: 50k
Notice is sent personally

Separation pay is only warranted when the cause for termination is not attributable to the employee’s
fault, such as those provided in Articles 298 (authorized causes except if due to business reverses) and
299 (disease) of the Labor Code, as well as in cases of illegal dismissal in which reinstatement is no
longer feasible.

JUST CAUSES FOR TERMINATION OF EMPLOYMENT (ART. 297 OF LCP)

Art. 297 – TERMINATION BY EMPLOYER – An employer may terminate an employment for any of the
following causes:

a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer
or representative in connection with his work;
b) Gross and habitual neglect by the employee of his duties;
c) Fraud or willful breach the employee of the trust reposed in him by his employer or duly
authorized representative;
d) Commission of a crime or offense by the employee against the person of his employer or any
immediate member of his family or his duly authorized representatives; and
e) Other causes analogous to the foregoing.

A. Serious Misconduct

Misconduct

-improper or wrong conduct. A transgression of some established and definite rule of

action, a forbidden act, a dereliction of duty, willful in character and implies a wrongful
intent and not mere error of judgment.

Misconduct to be serious

- Must be of grave and aggravated character, and not merely trivial or unimportant.

Requisites for Misconduct or improper behavior to be a just cause for dismissal:

a) It must be serious;
b) Relate to the performance of the employee’s duties;
c) Must show that the employee has become unfit to continue working for the employer;
and
d) Wrongful intent (SC added this last element)
In the absence of the last element, wrongful intent, the penalty must be SUSPENSION
only and not termination from employment.

Misconduct is improper or wrong conduct. It is the transgression of some established and definite rule
of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not
merely an error in judgment. The misconduct to be serious within the meaning of the Act must be of
such a grave and aggravated character and not merely trivial or unimportant. Such misconduct, however
serious, must nevertheless, in connection with the work of the employee, constitute just cause for his
separation. (Bughaw vs. Treasure Island Inc.)
Thus, for misconduct or improper behavior to be a just cause for dismissal, (1) it must be serious; (2) it
must relate to the performance of the employee's duties; and (3) it must show that the employee has
become unfit to continue working for the employer. Indeed, an employer may not be compelled to
continue to employ such person whose continuance in the service would be patently inimical to his
employer's interest. (Tomada v. RFM Corp)
Further, and equally important and required, the act or conduct must have been performed with
wrongful intent. In other words, for serious misconduct to be a just cause for dismissal, the concurrence
of the following elements is required: (a) the misconduct must be serious; (b) it must relate to the
performance of the employee's duties showing that the employee has become unfit to continue working
for the employer; and (c) it must have been performed with wrongful intent. (Universal Robina v. Ablay)
Ordinary misconduct would not justify the termination of services of the employee as the Labor Code is
explicit that the misconduct must be serious. (PLDT v. Berbano) – Absence of the requisites it should not
be termination, only suspension (or reprimand).

Examples:
 Illegal use of drugs (whether within or outside company premises, so long as the
employee tested positive) Case: Bughaw vs Treasure Island Industrial Corp.
 An employee whose attitude is deplorable (Case: Citibank vs NLRC)

NOTE:
 Criminal conviction is not required before the employee can beterminated.
SUBSTANTIAL EVIDENCE not guilt beyond reasonable doubt is required in laborcases.
 Burden of Proof – Employer

The totality of infractions or the number of violations committed during the period of employment shall
be considered in determining the penalty to be imposed upon an erring employee. The offenses
committed by petitioner should not be taken singly and separately. 

B. Willful Disobedience

Willful disobedience to the lawful orders of an employer is one of the valid grounds to terminate an
employee under Article 296 (formerly Article 282) of the Labor Code. For willful disobedience to be a
ground, it is required that: (a) the conduct of the employee must be willful or intentional; and (b) the
order the employee violated must have been reasonable, lawful, (c)made known to the employee,
and (d) must pertain to the duties that he had been engaged to discharge.Willfulness must be attended
by a wrongful and perverse mental attitude rendering the employee’s act inconsistent with proper
subordination. In any case, the conduct of the employee that is a valid ground for dismissal under
the Labor Code constitutes harmful behavior against the business interest or person of his employer. It is
implied that in every act of willful disobedience, the erring employee obtains undue advantage
detrimental to the business interest of the employer. (Dungon v. Rapid movers & forwarders co., Inc.)

Requisites:
a) Conduct of the employee must be willful or intentional;
b) The order the employee violated must have been reasonable or lawful;
c) The reasonable or lawful order was made known to the employee; and
d) It must pertain to the duties that he had been engaged to discharge

Willfulness
- Must be attended by a wrongful and perverse mental attitude rendering the
employee’s act inconsistent with proper subordination.
 - In any case, the conduct of the employee that is a valid ground for dismissal under
the Labor Code constitutes harmful behavior against the business interest or person
of his employer.

Unlawful Order
- If an order violates a law

Unreasonable Order
- When it is impossible for an employee to do or fulfill the order

There will be ILLEGAL DISMISSAL if the employee is terminated for not obeying an unreasonable
or unlawful order of the employer.

NOTE:
 In a valid exercise of management prerogative to transfer an employee, the
unreasonable refusal by the employee is willful disobedience.
 In one case, refusal to undergo drug test is a ground to terminate and employee.
 Burden of Proof – Employer

Also, the Supreme Court issued the following guidelines concerning the transfer of employees:
1. A transfer is a movement from one position to another of equivalent rank, level or salary
without break in the service or a lateral movement from one position to another of
equivalent rank or salary;
2. The employer has the inherent right to transfer or reassign an employee for legitimate
business purposes;
3. A transfer becomes unlawful where it is motivated by discrimination or bad faith or is
effected as a form of punishment or is a demotion without sufficient cause;
4. The employer must be able to show that the transfer is not unreasonable, inconvenient,
or prejudicial to the employee.

C. Gross and Habitual Neglect of Duty

This is commonly encapsulated in cases ABANDONMENT OF WORK by the employee. The

neglect of duty by the employee must not only be GROSS but also HABITUAL for it to be a just
cause.

Gross Negligence
-connotes a want of care in the performance of one’s duties
-It means an absence of diligence which an ordinary man would use in his own affairs.

Habitual Neglect
-implies repeated failure to perform one’s duties for a period of time depending on the
circumstances.
 Negligence
-the failure to observe for the protection of the interests of another person that degree
of car, precaution, and vigilance which circumstances just demand, whereby such other
person suffers injury.

Test of Negligence:
“Did the defendant in doing the alleged negligent act use reasonable care and caution
which an ordinarily prudent person would have used in the same situation?”

The common expression of gross and habitual neglect of duty is ABANDONMENT.

Abandonment, elements:
a) Failure to report for work or absence without valid or justifiable reason
b) Clear intention to severe the employer-employee relationship.(the second element as
the determinative factor being manifested by some overt acts)

 For abandonment to constitute valid cause for termination of employment, there must be a
DELIBERATE, UNJUSTIFIED REFUSAL of the employee to resume his employment. The refusal
must be CLEARLY SHOWN. Mere absence is not sufficient, it must be accompanied by OVERT
ACTS unerringly pointing to the fact that the employee does not work anymore.
 Gross and Habitual neglect of duties includes GROSS INEFFICIENCY, NEGLIGENCE and
CARELESSNESS.
 The burden of proof is on the EMPLOYER to show the employee’s clear and deliberate intent to
discontinue his employment without any intention of returning; mere absence is not sufficient.
 The filing of illegal dismissal is incompatible to abandonment. However, the filing of illegal
dismissal must be done with reasonable period of time. Prescriptive period of illegal dismissal is
4 YEARS.
 Employer must first overcome the burden of proof. It must first establish by substantial
evidence the fact of employee’s intent to sever EE-ER relationship. Eventually, filing by the
employee of an illegal dismissal case after an unreasonable period, abandonment can be
established.
 LBC v. Mateo, the case shows the Court’s inclination to disregard the element of “habituality” as
an important element of this just cause. A sing act of gross negligence resulting to DAMAGE TO
THE EMPLOYER IN HUGE AMOUNT can be equated to gross and habitual neglect of duties.
(Exception to this rule that both gross and habitual negligence should be present)

Gross Inefficiency
- closely related to gross neglect for both involve specific acts of omission on the part
of the employee resulting in damage to the employer or his business. As a just cause
for dismissal, inefficiency must not only be gross but also habitual.

 In the case of R. Transport Corp. v. Ejandra, the SC ruled that to prove intent of the employee to
sever EE-ER relationship, the employer should have reported such fact to the nearest Regional
Office of the DOLE, in accordance with Sec. 7, Rule XXIII, Book V of Dept. Order No. 9, series of
199716.
 NOTE:
 Burden of Proof – Employer

D. Fraud or Willful Breach of Trust/Loss of Confidence

- refers to any act, omission or concealment which involves a breach of legal duty, trust or
confidence justly reposed, and is injurious to another

Requisites:
1. Committed against the employer or his representative
2. in connection with the employee’s work
3. Position of the employee must be with trust and confidence

Elements of loss of trust and confidence:

A. Point of view of the ER:

 loss of confidence must not be simulated
 it should not be used as a subterfuge for causes which are illegal, improper or unjustified
 it may not be arbitrarily asserted in the face of overwhelming evidence to the contrary;
 it must be genuine, not a mere afterthought, to justify earlier action taken in bad faith; and
 the employee involved holds a position of trust and confidence.

To validly dismiss an employee on the ground of loss of trust and confidence the guidelines
above must be followed. (Ramos VS CA)

B. Point of view of the EE:

a.the act is not ordinary but willful breach of trust; and
b. it is work related as to expose the EE as unfit to continue working

- it is highly suggested that all these elements must be considered before terminating an EE
based on this ground

Position of Trust and Confidence – defined as one where a person is entrusted with confidence on
delicate matters, or with the custody, handling or care and protection of the ER’s property and/or funds.

Two positions vested with Trust and Confidence:

1. Managerial EEs
- primary duty consists of the management of the establishment in which they are employed or
of a department or a subdivision thereof, and to other officers or members ofthemanagerial
staff
- actual work performed by the EE that must be used as criterion to conclude thathe/she is a
managerial EE

2. Fiduciary Rank-and-file EEs(ex.: cashiers, auditors property custodians)

- those who, in the normal exercise of their functions, regularly handle significant amount of
money or property
 - though rank-and-file, are routinely charged with the care and custody of ER’s money or
property

Termination based on loss of trust and confidence:

Managerial EE
 Mere existence of a basis for believing
that the EE has breached the trust of
his/her ER would suffice
 mere existence is lesser degree
compared to “reasonable ground”
Rank-and-file EE
 the Court requires proof of
involvement in the alleged events in
question; mere corroborated
assertion and accusation of the ER
will not be sufficient

** G.R. No. 192297, August 03, 2016 - SUPRA MULTI-SERVICES, INC., JESUS TAMBUNTING, JR., AND RITA
CLAIRE T. DABU, Petitioners, v. LANIE M. LABITIGAN, Respondent

However, in PLDT vs Tolentino – SC ruled that managerial EE, although occupying a position of trust and
confidence cannot be terminated without any basis.

Proof beyond reasonable doubt is not required provided there is a valid reason for the loss of trust and
confidence, such as when the ER has a reasonable ground to believe that the managerial EE concerned is
responsible for the purported misconduct and the nature pf his participation renders him unworthy of
the trust and confidence demanded by his position.

Ordinary breach of trust is not sufficient -must be based on willful breach of trust reposed in the EE by
the ER

Ex: Supervisor who obtained an altered police report and medical certificate to cover up the fact that his
subordinate EE was under the influence of liquor at the time of the accident --- a ground to terminate
employment (GR No. 180465 Dela Cruz and Lacuata vs Coca-Cola)

Breach is willful if done intentionally, knowingly, and purposely without justifiable excuse
asdistinguished from an act done carelessly, thoughtlessly, heedlessly, or inadvertently.

For the doctrine of loss of trust and confidence to apply, the following requisites must concur: (Chan
Bar Reviewer, 2019):

1. EE holds a position of trust and confidence;

2. There exists an act justifying the loss of trust and confidence, which means that the act that betrays
the ER’s trust must be real, i.e. founded on clearly established facts;

3. EE’s breach of trust must be willful, i.e. it was done intentionally, knowingly and purposely, without
justifiable excuse; and

4. The act must be in relation to his work which would render him unfit.
E. Commission of Crime or Offense Against the ER or any immediate member of his family or
authorized representative

Requisites:
1. It must be “crime against persons” as defined under Revised Penal Code.
2. It is against the (1) the person of the employer, (2) or his/her immediate family member or (3)
his authorized representative.

Commission of the crime is enough, conviction is not required.

Immediate member of the family of the employer refers to: his or her relative within the fourth (4) civil
degree of consanguinity or affinity.

What are the degrees of consanguinity?

Spouse - Children - Parents (first degree)
Brothers/Sisters - Half-Brothers/Half-Sisters - Grandchildren - Grandparents (second degree)
Uncles/Aunts - Nephews/Nieces - Great-Grandparents - Great-Grandchildren (third degree)
4th Degree. Great Great Grandparent. Great Aunt/Uncle. First Cousin. Grand Nephew/Niece.
Degree Consanguinity Affinity
Third Uncle/ Aunt Uncle-in-Law

Nephew/Niece Nephew/Niece – in-law

Fourth Grandparent’s Sister/Brother Grandparent’s Sister/Brother inl

First Cousin First Cousin-in-Law

Authorized representative refers to: manager, supervisor or a person with special designation as the
employer’s representative.

Employer’s representative’s relatives are not included.

F. Other Analogous Cases

 - If the ground to terminate an employee does not squarely fall to any of the causes from (a)
to (d) then another analogous cases applies.

Requisites: (D.O. No. 147-15)

1. There must be an act or omission similar to those specified as just causes
2. The act or omission must be voluntary and/or willful on the part of the employee.

Analogous means: it is susceptible of comparison with another either in general or specific detail or has
a close relationship with another

Gross inefficiency falls within the purview of “other cases analogous to the foregoing’ closely related to
“gross neglect” for both involve specific acts of omission on the part of the employee resulting in
damage to the employer or to his business. (International School Manila and/or Brian McCauley, v.
International School Alliance of Educators) and (Buiser v. Leogardo)

Unreasonable behavior and unpleasant deportment in dealing with the people she closely works with
– analogous since it shows disrespect and defiance of authority and assumes the proportion of serious
misconduct or insubordination. (Cathedral School of Technology v. NLRC)

Example of Cases analogous to serious misconduct:

1. Stealing the credit card of a co-employee (John Hancock Life Insurance Corporation v. Joanna
Cantre Davis)
2. Unauthorized selling of textbooks in violation of the School Manual (Fallarme and Martinez-
Gacos v. San Juan De Dios Educational Foundation et al.)

Bona fide Occupational Qualification – a ground to terminate an employee base on analogous cases
because it is analogous to willful disobedience. (Yrasuegui v. Philippine Airlines, Inc., failure to pass the
standard weight)

AUTHORIZED CAUSES (ART. 298)

- Grounds are derived from the side of the employer
- Twin Notice Rule:
(1) serving a written notice on the workers; and
(2) theDepartment of Labor and Employment at least one (1) month before the intended date thereof.
- Employer must give separation pay except in case of closure due to business reverses or bankruptcy.

Separation computation:
1. Separation pay equivalent to at least his one (1) month pay or to at least one (1) month pay for
every year of service, whichever is higher.
 installation of labor-saving devices
 redundancy

2. Separation pay shall be equivalent to one (1) month pay of at least one-half (1/2) month pay for
every year of service, whichever is higher
 retrenchment to prevent losses
  in cases of closures or cessation of operations of establishment or undertaking not due to
serious business losses or financial reverse
3. No Separation Pay:
 In case of closure due to business reverses or bankruptcy

NOTE:
A fraction of at least six (6) months shall be considered one (1) whole year.

Fair and reasonable criteria or the Last-in-First-out rule will not apply to: Installation of labor-saving
device and closure. ~ALL employees are terminated (in installation: ER can terminate ALL EEs)
Otherwise, ER is in bad faith

A. Installation of Labor-Saving Devices

- management prerogative
- courts will not interfere in the absence of abuse of discretion, arbitrariness or maliciousness on the
part of the management
- modernization program
- the use of this ground must be in good faith
- must not be used as a facade to get rid of employees
- the twin-notice must be complied to give chance to the DOLE to validate the truthfulness of the
installation of labor-saving device
- employer must pay separation pay equivalent to at least his one (1) month pay or to at least one (1)
month pay for every year of service, whichever is higher.

B. Redundancy

- exists where the services of an employee are in excess of what is reasonably demanded by the actual
requirements of the enterprise
- a position is superfluous, and superfluity of a position may be the outcome of a number of factors, such
as over-hiring of workers, decreased volume of business, or dropping of a particular product line or
service activity previously manufactured or undertaken by the enterprise

Requirements for a valid implementation of a company’s redundancy program:

(a) the employer must serve a written notice to affected employees and the DOLE at least one (1) month
before the intended date of retrenchment;
(b) the employer must pay the employees a separation pay equivalent to at least one month pay or at
least one month pay for every year of service, whichever is higher;
(c) the employer must abolish the redundant positions in good faith; and
(d) the employer must set fair and reasonable criteria in ascertaining which positions are redundant and
may be abolished

Requisites of valid redundancy program:

(1) The good faith of the employer in abolishing the redundant position; and
(2) Fair and reasonable criteria in ascertaining what positions are to be declared redundant, such as but
not limited to: preferred status, efficiency and seniority
SC held that the following evidence may be proffered to substantiate redundancy:
(1) the new staffing pattern
(2) feasibility studies/proposal on viability of the newly created positions, job description and the
approval by the management of the restructuring.

Fair and reasonable criteria:

(a) less preferred status (e.g temporary employee)
(b) efficiency
(c) seniority

Reorganization
-
cost-saving device acknowledged by jurisprudence
-
no redundancy in case of merger of two corporations

Under the Corporation Code, two or more corporations may merge into a single corporation which shall
be one of the constituent corporations or may consolidate into a new single corporation which shall be
the consolidated corporation.

The Revised Corporation Code of the Philippines

MERGER AND CONSOLIDATION

Sec. 75. Plan of merger or consolidation. - Two or more corporations may merge into a single
corporation which shall be one of the constituent corporations or may consolidate into a new single
corporation which shall be the consolidated corporation.

The board of directors or trustees of each corporation, party to the merger or consolidation, shall
approve a plan of merger or consolidation setting forth the following:
1. The names of the corporations proposing to merge or consolidate, hereinafter referred to as the
constituent corporations;
2. The terms of the merger or consolidation and the mode of carrying the same into effect;
3. A statement of the changes, if any, in the articles of incorporation of the surviving corporation in
case of merger; and, with respect to the consolidated corporation in case of consolidation, all the
statements required to be set forth in the articles of incorporation for corporations organized under
this Code; and
4. Such other provisions with respect to the proposed merger or consolidation as are deemed
necessary or desirable.

When buying a company, the absorbing company also buys the absorbed company’s assets and
liabilities such as their employees. The absorbed company retains their status, name and employees.
o The assets and liabilities of the absorbed corporations shall be assumed by the absorbing
corporations and that includes contracts (e.g employment contracts).

C. Retrenchment to Prevent Losses

Retrenchment- defined as the termination of employment initiated by the employer through no fault of
the employee and without prejudice to the latter, resorted by management during periods of business
recession, industrial depression or seasonal fluctuations or during lulls over shortage of materials.

-It is a reduction in manpower, a measure utilized by an employer to minimize business losses incurred
in the operation of its business.

Two kinds of retrenchment to prevent losses:

a.) When the company is already suffering losses and retrenchment is adopted to prevent further
losses; and
b.) when retrenchment is adopted to prevent future losses.

Requisites of retrenchment:
(a) proof that the retrenchment is necessary to prevent losses or impending losses;
(b) service of written notices to the employees and to the Department of Labor and Employment at
least one (1) month prior to the intended date of retrenchment; and
(c) payment of separation pay equivalent to one (1) month pay, or at least one-half (1/2) month pay for
every year of service, whichever is higher.

In the case of Asian Alcohol Corp. vs. NLRC, G.R. No. 131108, March 25,1999, the Supreme Court stated
that the requirements for a valid retrenchment must be proved by clear and convincing evidence:
(1) that the retrenchment is reasonably necessary and likely to prevent business losses which, if already
incurred, are not merely de minimis, but SUBSTANTIAL, SERIOUS, ACTUAL and REAL or if only expected,
are reasonably imminent as perceived objectively and in good faith by the employer;
(2) that the employer served WRITTEN NOTICE both to the employees and to the Department of Labor
and Employment at least one month prior to the intended date of retrenchment;
(3) that the employer pays the retrenched employees SEPARATION PAY equivalent to one month pay or
at least one-half month pay for every year of service, whichever is higher;
(4) that the employer exercises its prerogative to retrench employees in GOOD FAITH for the
advancement of its interest and not to defeat or circumvent the employees' right to security of tenure ;
and
(5) that the employer used FAIR and REASONABLE CRITERIA in ascertaining who would be dismissed and
who would be retained among the employees, such as status (i.e., whether they are temporary, casual,
regular or managerial employees), efficiency, seniority, physical fitness, age, and financial hardship for
certain workers.

Standards for losses which may justify retrenchment:

(1) the losses incurred are substantial and not de minimis
(2) `the losses are actual or reasonably imminent
(3) the retrenchment is reasonably necessary and is likely to be effective in preventing the expected
losses; and
(4) the alleged losses, if already incurred, or the expected imminent losses sought to be forestalled, are
proven by sufficient and convincing evidence
- Substantial loss of the company must be supported by an independently audited financial statement by
independent external auditors which constitute the normal method of proving profit and loss
performance of a company.

Exhaustion of All Other Means

- The employer’s prerogative to bring down labor costs by retrenching must be exercised essentially as a
measure of last resort.

In the case of Blue Eagle Management Inc et al vs Jocelyn Naval, the employer resorted to the
following cost-cutting measures:
(1) withdrawing certain privileges of employer’s executives and expatriates;
(2) limiting the grant of additional monetary benefits to managerial employees cutting down expenses;
(3) selling of company vehicles; and
(4) infusing fresh capital into the company.

- In both permanent and temporary lay-offs, the employer must act in good faith- that is, one which is
intended for the advancement of the employer’s interest and not for the purpose of defeating or
circumventing the rights of the employees under valid agreements. The burden of proving, with
sufficient and convincing evidence, that said closure or suspension is bona fide falls upon the employer.

Second Type of Retrenchment

When termination is resorted to in order to prevent future losses
- requirement of financial statement is not required.
- the employer who is in good faith foresees a future loss need not wait for it to happen but it must be
exercised in good faith.
- there are impending losses, hence, company resorts to retrenchment

Retrenchment vs Redundancy

RETRENCHMENT REDUNDANCY

- the reduction of work personnel due to poor - exists where the number ofemployees is in
financial returns, aimed to cut down costs for excess of what us reasonably demanded by the
operation particularly on salaries and wages actual requirements of the enterprise
Both are forms of downsizing and are often resorted to by the employer during periods of business
recession, industrial depression, or seasonal fluctuations, and during lulls in production occasioned
by lack of orders, shortage of material, conversion of the plant for a new production program, or
introduction of new methods or more efficient machinery or automation.

Both are valid management prerogatives, provided they are done in good faith and the employer
faithfully complies with the substantive and procedural requirements laid down by law and
jurisprudence.
 Requisites:
(1) the retrenchment is necessary to prevent
losses and such losses are proven
(2) written notice to the employees and to the
DOLE at least on month prior to the intended
date of retrenchment; and
(3) payment of separation pay equivalent to
one month pay or at least one-half month pay
for every year of service, whichever is higher
Requisites:
The employer must prove that
(1) a written notice was served on both the
employees and the DOLE at least one month
prior to the intended date of retrenchment;
(2) separation pay equivalent to at least one
month pay or at least one month pay for every
year of service, whichever is higher, has been
paid
(3) good faith in abolishing the redundant
positions; and
(4) adoption of fair and reasonable criteria in
ascertaining which positions are to be declared
redundant and accordingly abolished

D. Closure or Cessation of Operations not due to Serious Business Losses

For documentation purposes, clearance is required when closing a company from the government
agency: SEC (Securities & Exchange Commission) or the CBA (Collective Bargaining Agreement) wherever
the company was registered – a Certificate of Dissolution (according to the Revised Corporation Code or
RCC - TITLE XIV DISSOLUTION)
SEC requires a BIR clearance before they issue a Certificate of Dissolution
This shows the ERs good faith in establishing that the closure is real.
This document is in addition to the financial statement (if closure not due to bankruptcy)

No category or criteria applied here since ALL employees are terminated.

Closure not due to business reverses

- employer can lawfully close shop anytime as long as it was bona fide in character and not impelled by a
motive to defeat or circumvent the tenurial rights of employees and as long as the terminated
employees were paid in the amount corresponding to their length of service.

Requisites:
(a) service of a written notice to the employees and to the DOLE at least one month before the
intended date thereof;
(b) the cessation of business must be bona fide in character (they are not a runaway shop); and
*Runaway shop – a company that evades union activities (Unfair Labor Practice) such as employees
right to self-organization

(c) payment to the employees of termination pay amounting to one month pay or at least one-half
month pay for every year of service, whichever is higher.
-
closure due to change of ownership must be motivated by good faith as a condition for exemption
from liability

In summary, the requisites of closure are as follows:

(1) Closure or cessation of operations of establishment or undertaking may either be partial or total.
(2) Closure or cessation of operations of establishment or undertaking may or may not be due to
serious business losses or financial reverse. However, in both instances, proof must be shown that:
(1) it was done in good faith in advance the employer’s interest and not for the purpose of defeating
or circumventing the rights of employees under the law or a valid agreement; and (2) a written
notice on the affected employees and the DOLE is served at least one month before the intended
date of termination of employment.
(3) The employer can lawfully close shop even if not due to serious business losses or financial reverses
but separation pay, which is equivalent to at least one month or at least one-half month pay for
every year of service whichever is higher, must be given to all affected employees.
(4) If the closure or cessation of operations of establishment or undertaking is due to serious business
losses or financial reverses, the employer must prove such allegation(financial statement and
certificate of dissolution) in order to avoid the payment of separation pay. Otherwise, the affected
employees are entitled to separation pay.
(5) The burden of proving compliance with all the above-stated falls upon the employer.

IN CLOSURE DUE TO BUSINESS REVERSES OR BANKRUPTCY:

The Labor Code does not impose any obligation upon the employer to pay separation benefits, for
obvious reasons.
 The Court ruled that to require an employer to be generous when it is no longer in a
position to do so would be unduly oppressive, unjust, and unfair to the employer.
 Ours is the system of laws, and the law in protecting the rights of the working man,
authorizes neither the oppression nor the self-destruction of the employer.

-
losses must be substantial and supported by financial statements covering reasonable period showing
the pattern of losses. Otherwise, the company shall pay separation pay to its employees.
*Reasonable period according to jurisprudence is at least 4 years (max of 5 years)

NO SEPARATION PAY WHEN THERE IS AN EXERCISE OF THE POWER OF EMMINENT DOMAIN:

The employer is not liable for separation pay when an employer is compelled to cease its operation
because of the compulsory acquisition by the government.

It is clear that Article 298 of the Labor Code applies in cases of closures of establishment and reduction
of personnel. The peculiar circumstances in the case at bar, however, involves neither the closure of an
establishment nor a reduction of personnel as contemplated under the aforesaid article.
In the case of National Federation of Labor vs. NLRC, G.R. No. 127718, March 2. 2000, the Supreme
Court ruled that there is no obligation to pay separation pay if the closure is not a unilateral and
voluntary act of the employer.
The closure was brought about not by a unilateral and voluntary act of the employer but due to the act
of government in the implementation of the Comprehensive Agrarian Reform Law.

CRITERIA IN TERMINATION OF EMPLOYEES UNDER AUTHORIZED CAUSE (except in installation of

labor-saving devices and closure)

Examples of criteria on how to terminate employees:

Last-in-First-Out (LIFO) Rule
-must always be strictly observed
-new employees are also preferred to be terminated first

Example:
-Employer sent termination notices that respondents who do not enjoy a “preferred status”, or are not
“efficient” or who do not possess “seniority”, is considered compliance of this requirement. (Coats
Manila Bay, Inc, vs Purita M. Ortega, GR 172628, Feb 13, 2009)

DISEASE (Article 299 LCP)

 A unique case where neither the employer nor the employee is at fault.

Article 299 of the Labor Code

Disease as ground for termination- An employer may terminate the services of an employee who has
been found to be suffering from any disease(except HIV RA 11166)and whose continued employment is
prohibited by law or is prejudicial to his health as well as to the health of his co-employees: Provided,
that he is paid separation pay equivalent to at least one (1) month salary or to one-half (1/2) month
salary for every year of service, whichever is greater, a fraction of at least six (6) months being
considered as one (1) whole year.

The employer must comply the following requisites:

(1) Thediseaseis prohibited by law oris prejudicial to his health as well as to the health of his co-
employees;
(2) it cannot be cured within a period of six (6) months even with proper medical treatment; and
(3) Medical certificate from a competent public health authority
(4) There should be notice to apprise the EE of the ground for which his dismissal is sought; and notice
informing the EE of his dismissal, to be issued after the EE has been given reasonable opportunity to
answer and be heard on his defense.
(5) To give separation pay equivalent to at least one (1) month salary or to one-half (1/2) month salary
for every year of service, whichever is higher

Section 8, Rule I, Book VI, Implementing Rules of the Labor Code

SECTION 8. Disease as a ground for dismissal. — Where the employee suffers from a disease and his
continued employment is prohibited by law or prejudicial to his health or to the health of his co-
employees, the employer shall not terminate his employment unless there is a certification by
competent public health authority that the disease is of such nature of at such a stage that it cannot
be cured within a period of six (6) months even with proper medical treatment.If the disease or
ailment can be cured within the period, the employee shall not terminate the employee but shall ask the
employee to take a leave of absence. The employer shall reinstate such employee to his former position
immediately upon the restoration of his normal health.

(Case: Sy vs. Court of Appeals and Manly Express, Inc. vs. Poyang Jr.)
o The rule that ER must furnish the EE two written notices in termination due to disease,
namely:
 The notice to apprise the EE of the ground for which his dismissal is sought; and
 The notice informing the EE of his dismissal, to be issued after the EE has been given
reasonable opportunity to answer and be heard on his defense. [Right to be heard]

Obligations of the ER:

1. Separation pay: separation pay equivalent to at least one (1) month salary or to one-half (1/2)
month salary for every year of service, whichever is higher
2. Notice:
Jurisprudence dictates that the employee should be afforded procedural due process and that the
employer must furnish the former two written notices:
(1) The notice to apprise the employee of the ground for which his dismissal is sought (allows employee
to ask another competent doctor if the disease can be cured within 6 months);
(2) The notice informing the employee of his dismissal, to be issued after he/she has been given
reasonable opportunity to answer and to be heard on his defense.
IF it can be cured within 6 months = not terminated and may be allowed to go on LEAVE

2 kinds of Leave: Paid leave or Leave without Pay

Burden of Proof: EMPLOYER

The burden of proving the validity of the dismissal of the employee rests on the employer, the
latter should likewise bear the burden of showing that the requisites for a valid dismissal due to a
disease have been complied with.

*An employee infected with HIV cannot be terminated based on Article 299 of the Labor Code. It is
considered an act of discrimination.

SEC. 35 of RA 8504. Discrimination in the Workplace. – Discrimination in any form from pre-employment
to post-employment, including hiring, promotion or assignment, based on the actual, perceived or
suspected HIV status of an individual is prohibited. Termination from work on the solebasis of actual,
perceived or suspected HIV status is deemed unlawful.
Section 49 of RA 11166 Philippine HIV and AIDS Policy Act (repealed RA 8504). Discriminatory Acts and
Practices. - The following discriminatory acts and practices shall be prohibited:
(a) Discrimination in the Workplace. - The rejection of job application, termination of employment,
or other discriminatory policies in hiring, provision of employment and other related benefit,
promotion or assignment of an individual solely or partiallyon the basis of actual, perceived, or
suspected HIV status;
Actual – confirmed HIV
Perceived – mere heresay (gossip), no basis
Suspected – shows symptoms (e.g. weak immune system) but no confirmation, mere suspicion

RETIREMENT (Article 302)

-> is the result of a bilateral act of the parties, a voluntary agreement between the employer and the
employee, whereby the latter, after reaching a certain age, agrees to severe his/her employment with
the latter.

Article 302 as Amended by RA 7641

Any employee may be retired upon reaching the retirement age established in the collective
bargaining agreement or other applicable employment contract.
In case of retirement, the employee shall be entitled to receive such retirement benefits as he
may have earned under existing laws and any collective bargaining agreement and other agreements;
Provided, however, that an employee’s retirement benefits under any collective bargaining and other
agreements shall not be less than those provided therein.
In the absence of a retirement plan or agreement providing for retirement benefits of
employees in the establishment, an employee upon reaching the age of sixty (60) years or more, but
not beyond sixty-five (65) years which is hereby declared the compulsory retirement age, who has
served at least five (5) years in the said establishment, may retire and shall be entitled to retirement
pay equivalentto at least one-half (1/2) month salary for every year of service, a fraction of six (6)
months being considered as one whole year.
Unless the parties provide for broader inclusions, the term ‘one-half (1/2) month salary shall
mean fifteen (15) days plus one-twelfth (1/12) of the 13 th month pay and the cash equivalent of not
more than five (5) days of service incentive leaves.
An underground mining employee upon reaching the age of fifty (50) years or more, but not
beyond sixty (60) years which is hereby declared the compulsory retirement age for underground mine
workers, who has served at least five (5) years as underground mine worker, may retire and shall be
entitled to all the retirement benefits provided for in this Article.
Retail, service and agricultural establishments or operations employing not more than ten (10)
employees or workers are exempted from the coverage of this provision.
Violation of this provision is hereby declared unlawful and subject to the penal provisions under
Article 288 of this Code.
Nothing in this Article shall deprive any employee of benefits to which he may be entitled under
existing laws or company policies or practices.
*The age and minimum length of service are cumulative requirements for the employee to avail of
retirement benefit under Article 302 of the Labor Code.

*Retirement Pay Law (RA 7641) is retroactive in application. It is applicable to services rendered prior to
January 7, 1993 by virtue of social legislation because it is beneficial to the employees and to protect
workers.

The following could be the ages where the employee can avail of retirement:

(a) Early retirement program as provided by company policy or collective bargaining agreement

(b) 60 years old- voluntaryretirement – at least 5 years of service

(c) 65 years old- compulsory/mandatory retirement

(d) 50 years old- voluntary- RA 8558 underground mining employees - at least 5 years of service

(e) 60 years old – compulsory–underground mining employees

(f) 55 years old – compulsory– RA 10789 - for race horse jockey (because of the nature of their job) –
must be a duly licensed racehorse jockey by the Professional Racing Commission

*RA 10757 – surface mine workers – same retirement age for underground mining workers

60 y.o. but working for 4 years only – not entitled to voluntary retirement benefit (should be at least 5
years of service)
At 65 y.o. – he is entitled to compulsory retirement benefit

IF EE HAS REACHED 65 – THE COMPULSORY AGE OF RETIREMENT AND HE/SHE STILL WANTS TO WORK:
ER MUST TERMINATE THE EE ON THE GROUND OF COMPULSORY RETIREMENT AND GIVE HIM HIS
BENEFITS WHICH HE IS ENTITLED TO UNDER ART. 302

*Consultant (>65 yo) = minimum wage will not apply. There is no ER-EE relationship.
(honorarium -a payment given for professional services)
After compulsory retirement – GSIS or other benefits and minimum wage no longer applies

PART-TIME EMPLOYEES – are entitled to retirement benefits according to RA 7641 (Retirement Pay Law)
Apply the Labor Advisory on Retirement Pay issued on October 24, 1996, which specifically provides that
the coverage of Republic Act No. 7641 "shall include part-time employees, employees of service and
other job contractors and domestic helpers or persons in the personal service of another."
https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/31980/82364/F669925030/PHL31980.pdf
Through a Labor Advisory dated October 24, 1996, then Secretary of Labor, and later Supreme Court
Justice, Leonardo A. Quisumbing (Secretary Quisumbing), provided Guidelines for the Effective
Implementation of Republic Act No. 7641, The Retirement Pay Law, addressed to all employers in the
private sector. Pertinent portions of said Labor Advisory are reproduguiced below:
A. COVERAGE
RA 7641 or the Retirement Pay Law shall apply to all employees in the private sector, regardless of their
position, designation or status and irrespective of the method by which their wages are paid. They shall
include part-time employees, employees of service and other job contractors and domestic helpers or
persons in the personal service of another.

IF THERE ARE 2 RETIREMENT BENEFITS: ONE PROVIDED BY THE COMPANY AND ONE PROVIDED BY LAW
Whichever provides a better retirement benefit will prevail – it’s usually the company policy that
is higher and is given primacy

There is no law that will require the company to provide retirement benefit. Why?
Because the law will provide such as SSS that provides them pension after retirement.
The law merely encourages employers to provide a higher retirement benefit.
*Absence of a company policy for retirement benefit, Art. 302 will apply.

PAG-IBIG Benefits as Substitute Retirement Plan

Under Section 21, PD No. 1752 (Amending the Act Creating the Home Development Mutual
Fund), a private employer shall have the option to treat the coverage of the PAG-IBIG Fund as a
substitute retirement benefit for the employee concerned within the purview of the Labor Code as
amended; Provided, such option does not in any way contravene an existing collective bargaining
agreement or other employment agreement; Provided further, that such scheme offers benefits which
are more more than or at least equal to the benefits under RA 7641. If said scheme provides less than
what the employee is entitled to under RA 7641, the employer is liable to pay the difference.

Retirement Benefits under Retirement Pay Law

Section 5. Retirement Benefits

5.1 Retirement Pay equivalent to at least one-half (1/2) month salary for every year of service, a
fraction of six (6) months being considered as one whole year.
5.2 Components of One-half (1/2) Month Salary
(a) Fifteen (15) days salary of the employee based on his latest salary rate
(b) The cash equivalent of not more than five (5) days of service incentive leave
(c) One-twelfth (1/12) pf the 13th month pay due the employee
(d) All other benefits that the employer and employee may agree upon

*EE must still receive their SSS. It is not included here

*Optional retirement is recognized but the employee must qualify as to age and the requirement in the
company policy.

* If the employee is terminated based on the optional retirement plan but he/she did not freely assent
thereto, there is illegal dismissal.

Burden of Proof: EMPLOYEE

It is also the employee’s obligation to prove that the retirement policy has ripened into a benefit
for him/her to be entitled based on a company practice.
Company practice can be proven to be a benefit when it is shown that there is consistency and
has been practiced for several years or at least more than 1 year.

COMPANY POLICY
-No need for consent from the EE – it is an ER’s prerogative – just as long as it is higher than what Art.
302 provides

If it is a product of CBA (there is negotiation here)

-consent is needed from the EE since it is a product of the negotiation with the EE

EXCEPTION TO ART. 302(Labor code only applies to private sector – does not affect the government
sector-government sector has their own GSIS law)
-EE of the national government and political subdivision including government-owned or controlled
corporation
-and EE of Retail, service and agricultural establishments or operations (those regularly employing not
more than 10 employees)

Book VI, Rule II of the Rules Implementing the Labor Code clearly describes the coverage of Republic
Act No. 7641 and specifically identifies the exemptions from the same, to wit:

 Sec. 1. General Statement on Coverage. — This Rule shall apply to all employees in the private
sector, regardless of their position, designation or status and irrespective of the method by
 which their wages are paid, except to those specifically exempted under Section 2 hereof. As
used herein, the term "Act" shall refer to Republic Act No. 7641, which took effect on January 7,
1993.

 Section 2. Exemptions. — This Rule shall not apply to the following employees:

 2.1 Employees of the National Governmentand its political subdivisions, including Government-
owned and/or controlled corporations, if they are covered by the Civil Service Law and its
regulations.

 2.2 Domestic helpersand persons in the personal service of another. (Deleted by Department
Order No. 20 issued by Secretary Ma. Nieves R. Confessor on May 31, 1994.)

 2.3. Employees of retail, service and agriculturalestablishments or operations regularly

employing not more than ten (10) employees. As used in this sub-section:

o "Retail establishment" is one principally engaged in the sale of goods to end-users for personal
or household use. It shall lose its retail character qualified for exemption if it is engaged in both
retail and wholesale of goods.

o "Service establishment" is one principally engaged in the sale of service to individuals for their
own or household use and is generally recognized as such.

o "Agricultural establishment/operation" refers to an employer which is engaged in agriculture.

This term refers to all farming activities in all its branches and includes, among others, the
cultivation and tillage of the soil, production, cultivation, growing and harvesting of any
agricultural or horticultural commodities, dairying, raising of livestock or poultry, the culture of
fish and other aquatic products in farms or ponds, and any activities performed by a farmer or on
a farm as an incident to or in conjunctions with such farming operations, but does not include
the manufacture and/or processing of sugar, coconut, abaca, tobacco, pineapple, aquatic or
other farm products. (Emphases ours.)

*Kasambahays are NOT entitled

“Kasambahay” refers to any person engaged in domestic work within an employment relationship such
as, but not limited to, the following: general househelp, nursemaid or “yaya”, cook, gardener, or laundry
person, but shall exclude any person who performs domestic work only occasionally or sporadically and
not on an occupational basis. (RA 10361)
The following are not covered: (a) Service providers; (b) Family drivers; (c) Children under foster family
arrangement; and (d) Any other person who performs work occasionally or sporadically and not on an
occupational basis.

DO 118-12(https://bwc.dole.gov.ph/images/Issuances/DepartmentOrder/DO_118_12.pdf)
Public Utility Bus Drivers/Conductor are entitled to retirement pay
Taxi drivers are entitled to retirement benefits – It is accepted that taxi drivers do not receive fixed
wages, but retain only those sums in excess of the “boundary” or fee they pay to the owners or
operators of their vehicles. Thus, the basis for computing their benefits should be the average daily
income. But since their monthly salary is NOT fixed - it will be computed by getting their average
income.
(R & E TRANSPORT, INC., vs LATAG - G.R. No. 155214 February 13, 2004)

PANTRANCO NORTH EXPRESS, INC. v. NATIONAL LABOR RELATIONS COMMISSION and URBANO
SUIGA, G.R. No. 95940, July 24, 1996)
ISSUE: WON Collective Bargaining Agreement provision allowing compulsory retirement before age 60
but after twenty five years of service legal and enforceable?

HELD: Yes. The compulsory retirement of private respondent effected in accordance with the CBA is
legal and binding. A CBA incorporates the agreement reached after negotiations between employer and
bargaining agent with respect to terms and conditions of employment. A CBA is not an ordinary
contract. Being a product of negotiation, the CBA between the petitioner and the union intended the
provision on compulsory retirement to be beneficial to the employees-union members, including herein
private respondent. When private respondent ratified the CBA with the union, he not only agreed to the
CBA but also agreed to conform to and abide by its provisions. Thus, it cannot be said that he was
illegally dismissed when the CBA provision on compulsory retirement was applied to his case. Providing
in a CBA for compulsory retirement of employees after twenty-five (25) years of service is legal and
enforceable so long as the parties agree to be governed by such CBA . The law presumes that employees
know what they want and what is good for them absent any showing that fraud or intimidation was
employed to secure their consent thereto.

CARISSA E. SANTO vs. UNIVERSITY OF CEBU, G.R. No. 232522. August 28, 2019)
*CBA retirement benefits should not be lesser than what is provided in Art. 302 of the Labor Code

Benefit should be more than ½ month for every year of service for it to become valid

If EE is validly terminated prior to retirement – no benefits

If it was invalid – entitled to retirement benefits + backwages only until he was 65 years old
-had the EE not been invalidly dismissed he would have had compulsory retired at the age of 65

RESIGNATION (Article 300 LCP)

-> the unilateral act of the employee to sever employer-employee relationship and it can be caused by
his/her voluntary will or forced by circumstances made by the employer.

-> it is a formal pronouncement or relinquishment of an office, with the intention of relinquishing the
office accompanied by the act of relinquishment.

Article 300 of the Labor Code

(a) An employee may terminate without just cause, the employer-employee relationship by serving a
written notice on the employerat least one (1) month in advance. The employer upon whom no such
notice was served may hold the employee liable for damages.

(b) An employee may put an end to the relationship without serving any notice on the employer for any
of the following Just causes:

a) Serious insult by the employer or his representative on the honor and person of the employee;
b) Inhuman and unbearable treatment accorded the employee by the employer or his
representative;
c) Commission of a crime or offense by the employer or his representative against the person of
the employee or any of the immediate members of his family; and
d) Other causes analogous to any of the foregoing

EE may resign – serving written notice is not ALWAYS mandatory as provided in Art. 300

2 KINDS OF RESIGNATION
1. Resignation without any cause
-30 day prior notice is mandatory
-without notice EE is liable for damages incurred by ER for abandoning his post
-ER files this case to the Labor Arbiter since it arose from an ER-EE relationship
-NOT entitled to separation pay – separation pay is only awarded when it is a unilateral
and voluntary act of the ER
*Unless there is a stipulation on their company policy or CBA that EE is entitled to
separation pay

2. Resignation with cause

-notice is not mandatory
-involuntary on the part of the EE (tantamount to constructive dismissal)
-separation pay is given

Under Resignation, general rule is THERE IS NO SEPARATION PAY

SEPARATION PAY IS AWARDED WHEN:
1. if resignation is a product of illegal dismissal due to just causesIF reinstatement is no longer
possible
2. if due to authorized causes (except due to closure due to business reverses)
3. If it is stipulated in their company policy or CBA

Cardinal rule: never ask for reinstatement if there is constructive dismissal since EE is alleging that he
resigned due to hostile environment – EE would not win if he asks for reinstatement
*Reinstatement – as matter of order is immediately executory – no need for a motion for execution
Either payroll or actual reinstatement

Lock-in Employment Contract: Where it is stipulated that EE cannot resign within a certain period
If it is without cause, EE is liable for the amount incurred by the ER. If EE has rendered a portion of the
contract period, she is liable proportionally.(pro rata) + 30 day notice requirement
EE can still resign if with a cause. It is involuntary on her part so EE is not liable (constructive dismissal).

Freedom of contracts principle will not prevail over the Labor Code
Perpetual employment contract is against the Labor Code
A contract of perpetual employment deprives management of its prerogative to decide whom to hire,
fire and promote, and renders inutile the basic precepts of labor relations. While management may
validly waive it prerogatives, such waiver should not be contrary to law, public order, public policy,
morals or good customs.

Burden of Proof: EMPLOYER(The employer has the burden of proof to establish the fact of voluntary
resignation.)

When EE submits several resignation letter – burden of proof is on the EE – it is only just for EE
to prove that it was involuntary
*When EE signs a waiver of quitclaim – EE cannot file for illegal dismissal
-EE is estopped from filing any further monetary claims from ER – except if quitclaim was not
voluntary OR if there is an agreement which entitles EE to other benefits upon resignation
*QUIT CLAIM MUST BE NOTARIZED (knowingly and voluntarily agreed upon)
Notarization – verifies that the document was voluntarily executed

* Acceptance of the resignation tendered by an employee is necessary to make the resignation effective.
This ruling applies if the resignation is without a cause.Once accepted, the employee no longer has any
right to the job.

EFFECTIVITY of RESIGNATION:
1. When EE resigns without cause – EE serves the 30-day notice – EE may withdraw his
resignation if it is prior to the approval/acceptance of the EE.
After approval – EE is officially resigned. If EE wants to be rehired, EE must ask ER’s consent
as if re-applying again.
 CONSEQUENCE OF A VALID DISMISSAL:
-No reinstatement
-No liability of backwages
-No liability for separation pay (UNLESS if due to Just Cause – and discerning compassion
doctrine applies) – financial assistance 5k
-Separation pay when terminated due to Authorized Cause (Unless due to closure due to
business reverses)

General rule: there is NO legal consequence when there is a valid dismissal

Exception:
 When the discerning compassion doctrine applies
 When separation pay is mandatory due to authorized causes (except due to closure due
to business reverses)
 If there is substantial evidence but absence of due process – ER is liable for nominal
damages.
Just cause = not more than 30k
Authorized cause = 50k

Consequences of Illegal Dismissal

 As provided under the rule on Security of Tenure (Art. 294 of the LC)
In case of regular employment, the employer shall not terminate the services of an employee
except for a just cause or authorized causes.

An employee who is illegally dismissed from work shall be entitled to:

1. Reinstatement without loss of seniority rights, and other privileges

2. Full backwages inclusive of allowance, and

3. Other benefits or their monetary equivalent

4. Separation Pay, if reinstatement is not possible

Art. 294: An employee who is unjustly dismissed from work shall be entitled to reinstatement
without loss of seniority rights and other privileges and to his full backwages, inclusive of
allowances, and to his other benefits or their monetary equivalent computed from the time his
compensation was withheld from him up to the time of his actual reinstatement.

Shall – mandatory
Reinstatement is immediately enforceable as the EE would need to sustain himself.
Social legislation favors the working class.

The raison d’etre: as explained by the Supreme Court is to make the award of reinstatement
immediately enforceable, even pending appeal.
Policy of the state to preserve the right of a working man against the consequences of illegal dismissal.
-Primacy of the Labor force

What is Reinstatement?

Reinstatement means:

1. the admission of an employee back to work prevailing prior to his dismissal;

2. restoration to a state or position from which one had been removed or separated which
presupposes that there shall be no demotion in rank/ no diminution of salary, benefits and
other privileges.

Note: If the position previously occupied no longer exists, the restoration shall be substantially
equivalent position in terms of salary, benefits and other privileges.

Other principles to consider under Illegal Dismissal:

1. The Labor Arbiter’s order for reinstatement of an employee found to be illegally dismissed is
immediately executoryeven during pendency of the employer’s appeal from the decision.
(Article 229 of the LC).

Under this provision, the employer at his option must:

 Reinstate the employee either by physically admitting him under the conditions
prevailing prior to his dismissal and paying his wages or
 merely reinstating the employee in the payroll until the decision is reversed by the
higher court.

LA will give a directive to ER to reinstate an EE. ER must report within 10 days that reinstatement has
been done.

*If EE abandoned or can no longer be contacted – ER reports to have exhausted their means to contact
EE (if not personally, via mail (Phil. Postal Corp.) to their last known address) or his lawyer and ER can
terminate the EE based on abandonment (Send the two-notice rule)(ER reports to LA)
BUT EE is still entitled for backwages (reckoned 10 days after receipt of the LA decision up until the EE
did not follow the reinstatement order). – Tantamount to wilful disobedience
a. BACKWAGES – from the time of the withholding of EE’s salary
(continuous)up to the finality of the LA decision. It is interrupted
once ER reinstates the EE.
 b. BACKWAGES – from non-compliance of ER of the order – starts
10 days from receipt of the decision

2. NO REFUND DOCTRINE: means the reinstated employee has no duty to return or reimburse the
salary received during the period that the lower court or tribunal governing decision was for the
employee’s illegal dismissal. Otherwise, it would run counter to the immediately executory
nature of an order of reinstatement
Case: Garcia vs PAL: The social justice principles of labor law outweigh or render inapplicable the
civil law doctrine of unjust enrichment (payroll reinstatement)

IF the decision that there is invalid dismissal – then there is reinstatement and backwages – then the
decision is reversed – EE is not liable to refund the amount he received.
Although, according to the Civil Code it is an unjust enrichment, social legislation prevails.
It would run counter to the immediately executory nature of an order of reinstatement.

Actual reinstatement: no refund – fair days wage for fair days work principle

*Art. 229 provides: In any event, the decision of the Labor Arbiter reinstating a dismissed or separated
employee, insofar as the reinstatement aspect is concerned, shall immediately be executory, even
pending appeal.

3. DOCTRINE OF STRAINED RELATIONS - Where reinstatement is not feasible, expedient or

practical, as where reinstatement would only exacerbate the tension and strained relations
between the parties or where the relationship between the employer and employee has been
unduly strained by reason of their irreconcilable differences, particularly where the illegally
dismissed employee held a managerial or key

Reinstatement and Backwages:

1. They are two separate reliefs (backwages covers from the date of withholding of salary up until
the compliance of the reinstatement order is followed)
2. The two reliefs are not inconsistent with one another and the labor arbiter can award both
simultaneously.
3. The relief of separation pay may be granted in lieu of reinstatement but it cannot be a substitute
for the payment of backwages. (Backwages are awarded when there is reinstatement.
Separation pay is only awarded when reinstatement is not feasible)
*Note: Reinstatement is MANDATORY unless of course there are circumstances which would
not make it possible

Backwages if order of reinstatement not followed

 - An employer who despite the Labor Arbiter’s order of reinstatement, did not reinstate the
employee during the pendency of the appeal up to the reversal by a higher tribunal may still be
held liable for the accrued wages of the employee.

Exceptions:
1. There is an actual delay or the fact that the order of the reinstatement pending appeal was not
executed prior to its reversal
2. The delay must not be due to the employer’s unjustified act or omission

Note:
 if the delay is due to the employer’s unjustified refusal, the employer may still be required to
pay the salaries notwithstanding the reversal of the LA’s decision.
 The decision of the labor arbiter must require the employer:
to submit a report of the compliance of the order of reinstatement within ten calendar
days from the receipt of the LA’s decision, non-compliance with which signifies a clear
refusal to reinstate.

When is Reinstatement not Possible?

1. The long passage of time
2. It would be inimical to the employer’s interest
3. Reinstatement may no longer be feasible
4. It will not serve the best interest of the parties involved
5. The company would be prejudiced by the worker’s continued employment.
6. It will not serve any prudent purpose as when supervening facts have transpired which makes
execution unjust.
7. IF EE is no longer in capacity to work (deceased or ill enough that EE could no longer work)
8. Company has already been dissolved
*AND if the position previously occupied no longer exists, the restoration shall be substantially
equivalent position in terms of salary, benefits and other privileges.

Note:Strained relations (must be proven with substantial evidence) may be invoked only against
employees whose positions demand trust and confidence or whose differences with their employer are
of such nature or degree as to preclude reinstatement.

Reinstatement without Backwages (exceptions to the general rule)

1. The fact of the dismissal of the employee would be too harsh of a penalty
2. The employee was in Good Faith in terminating the employee.

Definition of Backwages:
1. The earnings lost by a worker due to his illegal dismissal;

2. A form of relief that restores the income lost by reason of such unlawful dismissal;

Note:
 The payment of Backwages is generally granted on the ground of equity
  Backwages were not awarded in case of termination based on a just cause without
observance of due process.

Computation of Backwages: from the time of illegal dismissal until the date of the decision becomes
final.

Separation Pay – the amount that an employee receives at the time of his severance from the service
and is designed to provide the employee with the wherewithal during the period that he is looking for
another employment.

Backwages vs Separation Pay

BACKWAGES SEPARATION PAY

Basis: Represents compensation that should have
been earned but were not collected because of
the unjust dismissal.
Basis for computing wages: The length of the
employee’s service.
Basis:Granted where reinstatement is no longer
advisable because of strained relations between
the employee and the employer.
Basis for computing wages: The actual period
when the employee was unlawfully prevented
from working.

When the cause of the dismissal is due to authorized causes:

a. Ground is introduction of labor-saving device or redundancy the separation pay is equivalent

to:
 one month pay; or

 one month pay multiplied by the employee’s years of service, a fraction of at

least six months being counted as one year: whichever is higher

b. Termination caused by retrenchment, closure or cessation of operations not due to serious

business losses or disease;
- the separation pay is equivalent to whichever is higher of either;
 one-month pay; or

 one-half(1/2) month pay multiplied by the employee’s years of service or a

fraction of at least six months being considered as 1 year.

c. If an employee is terminated based on just cause but termination is declared illegal –

employee is entitled to separation pay of 1 month for every year of service, if reinstatement is
not possible

d. If an employee is terminated based on just cause and the termination is valid – employer has
no obligation to pay the employee separation pay.

Note:
  If the closure or cessation of business is due to serious business losses or financial
reverse, no separation pay need be paid at all.

 In the computation of the basic salary, regular allowances are included.

Damages

 The employer who committed illegal dismissal is liable to pay damages to the employees other
than the awards of separation pay and Backwages.

 Since an employer can be a juridical entity, the corporate officer will be made liable.(As provided
under Sec 31 of the Corporation Code)

 Moral damages is awarded if the dismissal or suspension was attended by bad faith or fraud; or
constituted an act oppressive to labor or was done contrary to morals, good customs or public
policy

Double Indemnity Rule:

 The employer concerned shall be ordered to pay an amount equivalent to double the unpaid
benefits owing to the employees

 Provided, that payment of indemnity shall not absolve the employer from the criminal liability
imposable under this Act.

Nominal Damages: When awarded?

 Absence of due process, the employer is liable to pay nominal damages. However, it will vary
whether the cause is just or authorized.

SOLIDARY LIABILITY OF CORPORATE OFFICERS

 Corporate directors and officers are liable with the corporation for the termination of the
employment of employees done with malice or bad faith.
 Exceptional circumstances to warrant solidary liability:
1. When directors and trustees or, in appropriate cases, the officers of a corporation-
(1) Vote for or assent to patently unlawful acts of the corporation;
(2) Act in bad faith or with gross negligence in directing the corporate affairs;
 Moral damages are awarded if the following elements exist:
1) An injury clearly sustained by the claimant;
2) A culpable act or omission factually established;
3) A wrongful act or omission by the defendant as the proximate cause of the injury sustained
by the claimant; and
4) The award of damages predicated on any of the cases stated in Artic le 2219 of the Civil
Code.
 Note: Bad faith must be proven by clear and convincing evidence.
  Exemplary damages may be granted when the dismissal of the employee was done on a wanton,
oppressive or malevolent manner.

LEGAL INTEREST

 6% per annum-absence of an express stipulation for loans or forbearance of any money goods
or credits

ATTORNEY’S FEES

Art. 111. Attorney’s fees. –

a. In cases of unlawful withholding of wages, the culpable party may be assessed attorney’s fees
equivalent to ten percent of the amount of wages recovered.

b. It shall be unlawful for any person to demand or accept, in any judicial or administrative
proceedings for the recovery of wages, attorney’s fees which exceed ten percent of the amount
of wages recovered.

 Three instances when attorney’s fees may be awarded by the Court:

a. Unlawful withholding of wages.
b. the employee is compelled to litigate.
c. In actions for indemnity under workmen’s compensation and employer’s liability laws.

 Two kinds of Attorney’s Fees:

1. Ordinary attorney’s fee - It is the reasonable compensation paid to a lawyer by his client for
the legal services he has rendered; compensation is paid for the cost and/or results of legal
services per agreement or as may be assessed.
2. Extraordinary attorney’s fee – deemed indemnity for damages ordered by the court to be
paid by the losing party to the winning party.

QUITCLAIMS

 Quitclaim - It is a document executed by an employee in favor of the employer preventing the

former from filing any further money claim.
 Invalid and against public policy:
1. where there is clear proof that the waiver was wangled from unsuspecting or gullible person;
or
2.where the terms of settlement are unconscionable on their face.

 Elements of a valid quitclaim

1. Voluntarily entered into with full understanding of what the employee is doing;
and
 2. Represents a reasonable settlement

PRESCRIPTION OF ACTIONS

ILLEGAL DISMISSAL CASES

- The prescriptive period of illegal dismissal cases is 4 years under Article 1146 of the Civil Code.
- One’s employment, profession or called is a “property right”
- When one is arbitrarily and unjustly deprived of his job or means of livelihood, the action
instituted to contest the legality of one’s dismissal from employment constitutes, in essence, an
action predicated “upon an injury to the rights of the plaintiff”, as contemplated under Art. 1146
of the Civil Code.

UNFAIR LABOR PRACTICE (ULP) CASES

- The prescriptive period for all complaints involving unfair labor practices arising from Book
Vshall be filed with the appropriate agency within one year from accrual of such unfair
labor practice; otherwise, they shall be forever barred.
- Other offenses penalized under this Code and the rules and regulations issued pursuant
thereto shall prescribe in three years.
- Pre-requisite for prosecution of criminal cases.
- Before a criminal action for ULP may be filed, it is a condition sine qua non that a final
judgment finding that an unfair labor practice act was committed by the respondent should
first be secured or obtained in the labor case initiated before the Labor Arbiter or the
Voluntary Arbitrator, as the case may be. Final judgment is one that finally disposes of the
action or proceeding. For instance, if the remedy of appeal is available but no appeal is
made, then, the judgment is deemed final and executory. If an appeal is made, then the final
judgment rendered by the last tribunal, say the Supreme Court, to which the case was
elevated should be the reckoning factor.
- Interruption of prescriptive period of offenses.
- As far as ULP cases are concerned, the running of the one (1) year prescriptive period is
interrupted during the pendency of the labor proceeding.
- Evidentiary value of the final judgment in the labor case.
- In ULP cases, the final judgment in the labor case cannot be presented as evidence of the
facts proven therein or as evidence of the guilt of the respondent therein. Its evidentiary or
probative value is confined merely in proving the fact of compliance with the condition sine
qua non prescribed by law, i.e., that a final judgment has been secured in the labor
proceeding finding that an unfair labor practice act was in fact committed by the
respondent.

MONEY CLAIMS CASES

 - Under Art. 306, the prescriptive period of all money claims and benefits arising from employer-
employee relation is 3 years from the time the cause of action accrued; otherwise, they shall be
forever barred.
- All other money claims accruing prior to the effectivity of this Code shall be filed with
appropriate entitiesestablished under this Code within one year from the date of effectivity.
- Article 297 contemplates all moneyclaims arising from employer-employee relationship,
including:
1. Money claims arising from the CBA.
2. Incremental proceeds from tuition increases.
3. Money claims of Overseas Filipino Workers (OFWs).

Note:It must be noted that in the 2010 case of Southeastern Shipping v. Navarra, Jr., the 1-year
prescriptive period in Section 28 of POEA-SEC was declared null and void. The reason is that Article 297
of the Labor Code is the law governing the prescription of money claims of seafarers, a class of overseas
contract workers because it is more favorable to the seafarers. This law prevails over said Section 28.

OFFENSES PENALIZED UNDER THE LABOR CODE AND ITS IMPLEMENTING RULES AND REGULATIONS
(IRR).

a. Prescriptive period is 3 years (Article 305, Labor Code) - The prescriptive period of all criminal
offenses penalized under the Labor Code and the Rules to Implement the Labor Code is three (3)
years from the time of commission thereof.

b. Consequence of non-compliance with prescriptive period under Article 305 - Failure to

initiate or file the criminal action or complaint within the prescriptive period shall forever bar
such action.

c. Illegal dismissal is not an “offense” under Article 305 - The act of the employer in dismissing
an employee without cause, although a violation of the Labor Code and its implementing rules,
does not amount to an “offense” as this term is understood and contemplated under Article
305.

ILLEGAL RECRUITMENT CASES

a. Simple illegal recruitment cases. – The prescriptive period is five (5) years.

b. Illegal recruitment cases involving economic sabotage. – The prescriptive period is twenty (20)
years.

ACTIONS INVOLVING UNION FUNDS

A complaint or petition for audit or examination of funds and books of accounts prescribes
within three (3) years:

(a) From the date of submission of the annual financial report to the DOLE; or
 (b) From the date the same should have been submitted as required by law, whichever comes
earlier.

It should be noted, however, that this provision on the prescriptive period applies only to a legitimate
labor organization which has submitted the financial report required under the Labor Code.

CLAIMS FOR SSS BENEFITS

a. Action against employer.

The right to institute the necessary action against the employer for non-remittance of
contributions may be commenced within twenty (20) years:

(1) from the time the delinquency is known; or

(2) from the time the assessment is made by the SSS; or
(3) from the time the benefit accrues, as the case may be.

b. Action for disability claims.

The prescriptive period in the filing of disability benefit claim is ten (10) years from the date of
occurrence of disability.

CLAIMS FOR GSIS BENEFITS

Claims for benefits, except for life and retirement, prescribe after four (4) years from the date of
contingency.

Right to Self-organization: Principles and Policies

Right to self-organization- is the right guaranteed by the Philippines Constitution and (Art. 253) Labor
Code. 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.

The Right of Self- organization is guaranteed by the following:

1. 1987 Constitution (Art.13 Sec.3)

2. Statutory Provisions of the Labor Code:
3. Universal Declaration of Human Rights
4. International Covenant on Economic, Social and Cultural Rights
5. ILO Convention No. 87, Art. 1 and 11
6. C87 Freedom Association And Protection of the Right to Organize Convention , 1948

Preferred Modes of Dispute Settlement: Policies and Laws

 A. Sec. 3 Art. XIII 1987 Constitution: The State shall promote the principle of shared responsibility
between workers and employers and the preferential use of voluntary modes in settling
disputes, including conciliation, and shall enforce their mutual compliance therewith to foster
industrial peace
B. To promote and emphasize the primacy of free collective bargaining and negotiations, including
voluntary arbitration, mediation and conciliation, as modes of settling labor or industrial
disputes;

C. The Board shall exert all efforts to settle disputes amicably and encourage the parties to submit
their case to a voluntary arbitrator. (As amended by Section 20, Republic Act No. 6715, March
21, 1989)

D. Duty to bargain collectively in the absence of collective bargaining agreements. In the absence
of an agreement or other voluntary arrangement providing for a more expeditious manner of
collective bargaining, it shall be the duty of employer and the representatives of the employees
to bargain collectively in accordance with the provisions of this Code.

E. Grievance machinery and voluntary arbitration- a machinery for the adjustment and resolution
of grievances arising from the interpretation or implementation of their Collective Bargaining
Agreement and those arising from the interpretation or enforcement of company personnel
policies.

All grievances submitted to the grievance machinery which are not settled within seven (7)
calendar days from the date of its submission shall automatically be referred to voluntary
arbitration prescribed in the Collective Bargaining Agreement.

Labor Organization (Art 212 (g) of Labor Code)

Labor organization” means any union or association of employees which exists in whole or in
part for the purpose of collective bargaining or of dealing with employers concerning terms and
conditions of employment.
Labor Management Council (Art. 267)

Workers shall have the right, subject to such rules and regulations as the Secretary of Labor and
Employment may promulgate, to participate in policy and decision-making processes of the
establishment where they are employed insofar as said processes will directly affect their rights,
benefits and welfare. For this purpose, workers and employers may form labor-management
councils: Provided, That the representatives of the workers in such labor-management councils
shall be elected by at least the majority of all employees in said establishment. (As amended by
Section 22, Republic Act No. 6715, March 21, 1989)

Role of Trade Unionism and Unionism Envisioned (Art. 211)

a. To promote free trade unionism as an instrument for the enhancement of democracy and the
promotion of social justice and development;
a. To foster the free and voluntary organization of a strong and united labor movement;
 b. To promote the enlightenment of workers concerning their rights and obligations as union
members and as employees;

Legitimate Labor Organization (Art 212(g))

“Legitimate labor organization” means any labor organization duly registered with the Department of
Labor and Employment, and includes any branch or local thereof.

Legal personality will be created upon its registration with Bureau of Labor Relations. One of its vital
rights is to file a petition for certification election.

Worker’s Enlightenment

Art 211(d) of the Labor Code provides that Labor Organization shall promote the enlightenment of
workers concerning their rights and obligations as union members and as employees;

Art. 277.All unions are authorized to collect reasonable membership fees, union dues, assessments
and fines and other contributions for labor education and research, mutual death and
hospitalization benefits, welfare fund, strike fund and credit and cooperative undertakings. (As
amended by Section 33, Republic Act No. 6715, March 21, 1989)

Limitations: Art 241 (o) Other than for mandatory activities under the Code, no special assessments,
attorney’s fees, negotiation fees or any other extraordinary fees may be checked off from any
amount due to an employee without an individual written authorization duly signed by the
employee. The authorization should specifically state the amount, purpose and beneficiary of the
deduction;

Dispute Settlement Machinery

It is the policy of the state toArt 211 (e) to provide an adequate administrative machinery for the
expeditious settlement of labor or industrial disputes;

a. National Labor Relations Commission handles all labor disputes

Art. 213. National Labor Relations Commission which shall be attached to the
Department of Labor and Employment for program and policy coordination only,
composed of a Chairman and fourteen (14) Members.

b. Office of Regional Arbitration Branch is where the labor complaints are filed first

Art. 216. Except as otherwise provided under this Code, the Labor Arbiters shall have
original and exclusive jurisdiction to hear and decide, within thirty (30) calendar days
after the submission of the case by the parties for decision without extension, even in
the absence of stenographic notes, the following cases involving all workers, whether
agricultural or non-agricultural.
c. Bureau of Labor Relations and Labor Relations Divisions

Art. 226. The Bureau of Labor Relations and the Labor Relations Divisions in the regional
offices of the Department of Labor, shall have original and exclusive authority to act, at
their own initiative or upon request of either or both parties, on all inter-union and
intra-union conflicts, and all disputes, grievances or problems arising from or affecting
labor-management relations in all workplaces, whether agricultural or non-agricultural,
except those arising from the implementation or interpretation of collective bargaining
agreements which shall be the subject of grievance procedure and/or voluntary
arbitration.

d. Secretary of Labor and Employment

ART. 128. The Secretary of Labor and Employment or his duly authorized
representatives, including labor regulation officers, shall have access to employers
records and premises at any time of the day or night whenever work is being
undertaken therein, and the right to copy therefrom, to question any employee and
investigate any fact, condition or matter which may be necessary to determine
violations or which may aid in the enforcement of this Code and of any labor law, wage
order or rules and regulations issued pursuant thereto.

e. Regional Director of DOLE (Art 129)

a. Upon complaint of any interested party, the Regional Director of the Department of
Labor and Employment or any of the duly authorized hearing officers of the Department
is empowered, through summary proceeding and after due notice, to hear and decide
any matter involving the recovery of wages and other monetary claims and benefits,
including legal interest, owing to an employee or person employed in domestic or
household service or househelper under this Code, arising from employer-employee
relations;
b. Provided, that such complaint does not include a claim for reinstatement;
c. Provided further, That the aggregate money claims of each employee or househelper
does not exceed Five thousand pesos (P5,000.00);
d. The Regional Director or hearing officer shall decide or resolve the complaint within
thirty (30) calendar days from the date of the filing of the same;
e. Any sum thus recovered on behalf of any employee or househelper pursuant to this
Article shall be held in a special deposit account by, and shall be paid on order of, the
Secretary of Labor and Employment or the Regional Director directly to the employee or
househelper concerned;
f. Any such sum not paid to the employee or househelper because he cannot be located
after diligent and reasonable effort to locate him within a period of three (3) years, shall
be held as a special fund of the Department of Labor and Employment to be used
exclusively for the amelioration and benefit of workers.
Industrial Peace

Article 218 (f) of the Labor Code provides that it is a policy of the state:

 To ensure a stable but dynamic and just industrial peace

Workers’ Participation Decision Making Process

Article 218 (g)

To ensure the participation of workers in decision and policy making processes affecting their rights,
duties and welfare.To carry out this mandate,Article 267provides:

“The labor organization designated or selected by the majority of the employees inan
appropriate collective bargaining unit shall be the exclusive representative of the employees in
such unit for the purpose of collective bargaining. However, an individual employee or group of
employees shall have the right at any time to present grievances to their employer.”

Tri Partism

Article 279 of Republic Act 10395 (amended Art. 290 of the Labor Code)

Section 1. Article 279 of the Labor Code is hereby amended to read as follows:

"ART. 279. Tripartism, Tripartite Conferences, and Tripartite Industrial Peace Councils. –

(a) Tripartism in labor relations is hereby declared a State policy. Towards this end, workers and
employers shall, as far as practicable, be represented in decision and policy-making bodies of the
government.

(b) The Secretary of Labor and Employment or his duly authorized representatives may from
time to time call a national, regional, or industrial tripartite conference of representatives of
government, workers and employers, and other interest groups as the case may be, for the
consideration and adoption of voluntary codes of principles designed to promote industrial peace
based on social justice or to align labor movement relations with established priorities in
economic and social development. In calling such conference, the Secretary of Labor and
Employment may consult with accredited representatives of workers and employers.

(c) A National Tripartite Industrial Peace Council (NTIPC) shall be established, headed by the
Secretary of Labor and Employment, with twenty (20) representatives each from the labor and
employers’ sectors to be designated by the President at regular intervals. For this purpose, a
sectoral nomination, selection, and recall process shall be established by the DOLE in
consultation with the sectors observing the ‘most representative’ organization criteria of ILO
Convention No. 144.
 Tripartite Industrial Peace Councils (TIPCs) at the regional or industry level shall also be
established with representatives from government, workers and employers to serve as a
continuing forum for tripartite advisement and consultation in aid of streamlining the role of
government, empowering workers’ and employers’ organizations, enhancing their respective
rights, attaining industrial peace, and improving productivity.”

FUNCTIONS OF THE TIPC:

"(1) Monitor the full implementation and compliance of concerned sectors with the provisions of
alltripartite instruments, including international conventions and declarations, codes of conduct,
and social accords;

"(2) Participate in national, regional or industry-specific tripartite conferences which the President or the
Secretary of Labor and Employment may call from time to time;

"(3) Review existing labor, economic and social policies and evaluate local and international
developments affecting them;

"(4) Formulate, for submission to the President or to Congress, tripartite views, recommendations and
proposals on labor, economic, and social concerns, including the presentation of tripartite positions
on relevant bills pending in Congress;

"(5) Advise the Secretary of Labor and Employment in the formulation or implementation of policies and
legislation affecting labor and employment;

"(6) Serve as a communication channel and a mechanism for undertaking joint programs among
government, workers, employers and their organizations toward enhancing labor-management
relations; and

"(7) Adopt its own program of activities and rules, consistent with development objectives.

"All TIPCs shall be an integral part of the organizational structure of the NTIPC.

"The operations of all TIPCs shall be funded from the regular budget of the DOLE."

Limited Labor Injunction

Injunction is prohibited in labor in order to expedite settlement.

Article 266 of the Labor Code provides:

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 Art 224 and 270 of
this Code. (as amended by BP 227)
Constitutional Guarantee

Right of self-organization: Article III, Section 8 of the 1987 Constitution, which provides:

The right of the people, including those employed in the public and private sectors, to form unions,
associations, or societies for purposes not contrary to law shall not be abridged.

The state further protects labor in the following provisions under Article 13, Section 3of the 1987
Constitution:

The State shall afford full protection to labor, local and overseas, organized and unorganized, and
promote full employment and equality of employment opportunities for all.

It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations,
and peaceful concerted activities, including the right to strike in accordance with law. They shall be
entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate
in policy and decision-making processes affecting their rights and benefits as may be provided by law.

The State shall promote the principle of shared responsibility between workers and employers and the
preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their
mutual compliance therewith to foster industrial peace.

The State shall regulate the relations between workers and employers, recognizing the right of labor to
its just share in the fruits of production and the right of enterprises to reasonable returns on
investments, and to expansion and growth.

Note:

Corollary to the right to join unions is the right not to join in them; and

A person may opt to renounce his membership in a union (Alexander Reyes etal vs
CresencioTrajanoetal)

EMPLOYEE COVERAGE

Art. 253 Coverage and employee’s right to self-organization, states that:

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.
 Ambulant, intermittent and itinerant workers, self-employed people, rural workers and those
without any definite employers may form labor organizations for their mutual aid and protections. (As
amended by BP Bilang 70, May 1, 1980)

Three groups of employees:

A. Workers with absolute right to self-organization

1. Rank-and-file employees in the private sector
2. Rank-and-file employees in the public service
B. Workers with qualified rights
1. Supervisory Employees
2. Security Guards
3. Alien Workers
4. Cooperative Members
C. Workers without right to self-organization
1. Managerial Employees
2. Confidential Employees
3. Employees of International Organizations
4. Non-Employees
5. High-level Government Employees in the civil service
6. Members of the AFP, PNP, BJMP, Navy and Airforce

A. Workers with absolute right to self-organization

1. Rank-and-File employees in the private sector

GR: All rank-and-file employees in the bargaining unit can join, form and assist labor
organization.

Except:Ambulant, intermittent and itinerant workers, self-employed people, rural

workers and those without any definite employers may form labor organizations
for their mutual aid and protection.

NOTE:
Under Art. 292 (c), any employee, whether employed for a definite period or not, shall
beginning on their first day of his/her service, be eligible for membership in any
labor organization.

2. Rank-and-file employees in the public service

Under Art 254 of LCP:

 Allowed: Employees of government corporations established under the Corporation
Code shall have the right to organize and to bargain collectively with their
respective employers.

Allowed but restricted: Employees in the civil service shall have the right to form
associations ONLY for purposes not contrary to law.

Under EO No. 180

GR: All government employees can form, join or assist employee’s organizations of their
own choosing for the furtherance and protection of their interests.

Exception: High-level employees (policy-making, managerial or highly confidential)

Not applicable: Member of the AFP (police officers, policemen. firemen, and jail guards)

B. Workers with qualified rights

1. Supervisory Employees
- They are allowed only if they join, assist or form separate labor organizations of their
own.

2. Security Guards
- Under EO No. 111 which amended the prohibition under Art. 245, security grounds are
not allowed to join either supervisory or rank-and-file unions according to their rank.

3. Alien Workers (Art. 284 of the LCP)

Requisites for alien workers to join and assist unions:

a. The alien employee is a holder of a valid DOLE employment permit;
b. The principle of reciprocity applies; and
c. They can only join and assist and NOT FORMlabor organization.

4. Cooperative Members
- The Supreme Court ruled that employees of cooperatives who at the same time are
owners/members of cooperatives, are prohibited from bargaining against the
cooperative. Employees who are not members of the cooperative have
the right to join, form and assist labor organization for purposes of collective
bargaining.

Reason: As members of the cooperative, you are deemed as co-owners thereof,

certainly an owner cannot bargain with himself or his co-owners.
C. Workers without right to self-organization
1. Managerial Employees

Two-fold Reason:
 a. It is to void placing managerial employees in a conflict-of-interest situation,
considering their character as representative of the employer; and
b. to preclude the risk of the union’s becoming a company union as a consequence

Additional Reason: The Labor Code has made it a statutory policy to prevent
supervisory employees from joining rank-and-file labor organization as the concerns which
involve members of either group are normally disparate and contradictory. (Motor Phil.
Corp. vs. TMPC Labor Union, 268 SCRA 573)

Distinguish Managerial Employees from Supervisory Employees:

Managerial employeesare those vested with powers or prerogatives to lay down and execute
management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or
discipline employees.

Supervisory employeesare those who, in the interest of the employer, effectively recommend
such managerial actions if the exercise of such authority is not merely routinely or clerical in
nature, but requires the use of independent judgment. (Article 212 (m) LC)

Test of Managerial or Supervisory Status:

a. Whether a person possesses authority to act in the interest of his employer;
b. Whether such authority is not merely routinely or clerical in nature, but requires the use of
independent judgment.

It is the nature of the employee’s functions, and not the nomenclature or title given to his job,
which determines whether he has rank-and-file, supervisory or managerial status.

Elements before an employee can be considered a managerial employee:

a. Their primary duty consists of the management of the establishment in which they are
employed or of a department or sub-division thereof;
b. They customarily and regularly direct the work of two or more employees therein; and
c. They have the authority to hire or fire other employees of lower rank, or their suggestions
or recommendations as to the hiring and firing and as to the promotion or any other
change of status of other employees is given particular weight

2. Confidential Employees

Who are confidential employees?

a. Confidential employees are those who by reason of their positions or nature of work are
required to assist or act in a fiduciary manner to managerial employees and hence, are
likewise privy to sensitive and highly confidential records.
b. Confidential employees are rank and file employees and they, like other rank-and file
employees, should be granted the benefits of the Collective Bargaining Agreement.
 Functions:
Assist and act in a confidential capacity to, or have access to confidential matters of, persons
who exercise managerial functions in the field of labor relations.

The rationale behind the ineligibility of managerial employees to form, assist or join a labor
union equally applies to them.

Rationale of inhibition:
a. If the managerial would belong to of be affiliated with Union, the latter might not be
assured of their loyalty to the Union in view of the evident conflict of interests;

b. The union can become company-dominated with the presence of managerial employees
in Union Membership.

Like managerial employees, officers and members of managerial staff are not entitled to the
provisions of law on labor standards.

Implementing Rules of the Labor Code define members of a managerial staff as those with the
following duties and responsibilities:

1. The primary duty consists of the performance of work related to management policies
of the employers;
2. Customarily and regularly exercise discretion and independent judgment;
3. (i) Regularly and directly assist a proprietor or a managerial employee whose primary
duty consists of the management of the establishment in which he is employed of
subdivision thereof; or (ii)execute under general supervision work along specialized or
technical lines requiring special training, experience or knowledge; or (iii) execute
under general supervision special assignments and tasks; and
4. Who do not devote more than 20 percent of their hours worked in workweek to
activities which are not directly and closely related to the performance of the work
described in paragraphs (1),(2), and (3) above.

3. Employees of International Organizations

Who are not qualified to join, form and assist labor organization:
a. Employees of international organization located in the Philippines; and
b. Employees in foreign embassies or consulates or in foreign international organizations
granted international immunities.

Reason: The application of the Doctrine of State Immunity

 The labor court does not have jurisdiction over the case arising from worker’s exercise
of their right to self-organization.
 International organizations are organized mainly as a means for conducting general
international business in which the member-states have an interest and the immunities
 granted them shield their affairs from political pressure or control by the host country
and assure the unimpeded performance of their functions.

4. Non-Employees (Art. 253)

 Non-employees are not entitled to the constitutional right to join or form a labor
organization for purposes of collective bargaining.
 Ambulant, intermittent and itinerant workers, self-employed people, rural workers and
those without any definite employers may form labor organizations for their mutual aid
and protection.

5. High-level Government Employees in the civil service

 Those whose functions are considered policy-making, managerial or highly confidential
in nature.

6. Members of the AFP, PNP, BJMP, Navy and Airforce(Non-applicability of EO No. 108)
 These group of government employees should not be allowed to form labor
organization because of the nature of their work. If they go on strike, the same will
appear no less than a coup de etat. The government cannot refuse their demand at
the point of their guns.

UNLAWFUL ACTS

Articles 257, 259 and 260 of the Labor Code guarantees the right to self-organization must be respected.
If this right shall be violated, there will be criminal prosecution since it has a penal sanction.

Penalty:
 Fine – not less than Php 1,000 nor more than Php 10,000;
 Imprisonment – not less than 3months nor more than 3years; OR
 Both fine and imprisonment at the discretion of the court

NOTE:
In case of aliens found guilty of such, they shall be summarily deported upon completion of service of
sentence.

Jurisdiction– Municipal Courts, City Courts or Courts of First Instance (Regional Trial Courts)

Article 257 Non-abridgment of right to self-organization

It shall be unlawful for any person to restrain, coerce, discriminate against or unduly interfere with
employees and workers in their exercise of the right to self-organization. Such right shall include the
right to form, join, or assist labor organizations for the purpose of collective bargaining through
representatives of their own choosing and to engage in lawful concerted activities for the same purpose
for their mutual aid and protection, subject to the provisions of Article 264 of this Code. (As amended by
Batas PambansaBilang 70, May 1, 1980)
Article 259Unfair labor practices of employers

It shall be unlawful for an employer to commit any of the following unfair labor practice:

a. To interfere with, restrain or coerce employees in the exercise of their right to self-organization;
b. To require as a condition of employment that a person or an employee shall not join a labor
organization or shall withdraw from one to which he belongs;
c. To contract out services or functions being performed by union members when such will
interfere with, restrain or coerce employees in the exercise of their rights to self-organization;
d. To initiate, dominate, assist or otherwise interfere with the formation or administration of any
labor organization, including the giving of financial or other support to it or its organizers or
supporters;
e. To discriminate in regard to wages, hours of work and other terms and conditions of
employment in order to encourage or discourage membership in any labor organization.
Nothing in this Code or in any other law shall stop the parties from requiring membership in a
recognized collective bargaining agent as a condition for employment, except those employees
who are already members of another union at the time of the signing of the collective
bargaining agreement. Employees of an appropriate bargaining unit who are not members of
the recognized collective bargaining agent may be assessed a reasonable fee equivalent to the
dues and other fees paid by members of the recognized collective bargaining agent, if such non-
union members accept the benefits under the collective bargaining agreement: Provided, that
the individual authorization required under Article 242, paragraph (o) of this Code shall not
apply to the non-members of the recognized collective bargaining agent;
f. To dismiss, discharge or otherwise prejudice or discriminate against an employee for having
given or being about to give testimony under this Code;
g. To violate the duty to bargain collectively as prescribed by this Code;
h. To pay negotiation or attorney’s fees to the union or its officers or agents as part of the
settlement of any issue in collective bargaining or any other dispute; or
i. To violate a collective bargaining agreement.

The provisions of the preceding paragraph notwithstanding, only the officers and agents of corporations,
associations or partnerships who have actually participated in, authorized or ratified unfair labor
practices shall be held criminally liable. (As amended by Batas PambansaBilang 130, August 21, 1981)

Article260 Unfair labor practices of labor organizations

It shall be unfair labor practice for a labor organization, its officers, agents or representatives:

a. To restrain or coerce employees in the exercise of their right to self-organization. However, a

labor organization shall have the right to prescribe its own rules with respect to the acquisition
or retention of membership;
b. To cause or attempt to cause an employer to discriminate against an employee, including
discrimination against an employee with respect to whom membership in such organization has
been denied or to terminate an employee on any ground other than the usual terms and
conditions under which membership or continuation of membership is made available to other
members;
 c. To violate the duty, or refuse to bargain collectively with the employer, provided it is the
representative of the employees;
d. To cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money
or other things of value, in the nature of an exaction, for services which are not performed or
not to be performed, including the demand for fee for union negotiations;
e. To ask for or accept negotiation or attorney’s fees from employers as part of the settlement of
any issue in collective bargaining or any other dispute; or
f. To violate a collective bargaining agreement.

The provisions of the preceding paragraph notwithstanding, only the officers, members of governing
boards, representatives or agents or members of labor associations or organizations who have actually
participated in, authorized or ratified unfair labor practices shall be held criminally liable. (As amended
by Batas PambansaBilang 130, August 21, 1981)

How to prove ULP?

For a charge of ULP against a labor organization to prosper, the onus probandi restsupon the party
alleging it to prove or substantiate such claims by the requisite quantum of evidence, substantial
evidence.

LABOR ORGANIZATION

A Labor Organizationis any union or association of employees which exists in whole or in part for the
purpose of collective bargaining or for dealing with employers concerning the terms and conditions of
employment (Art. 219g). It is created for mutual aid, interest, cooperation, protection or other lawful
purposes (Section 1 cc, Rule 1, Book V, Rules to Implement the Labor Code as amended by DO No. 40-03
S. 2003).

A legitimate labor organizationrefers to any labor organization registered with the DOLE, in accordance
with the Labor Code and its implementing rules. It includes any branch or local thereof.

A “company union” is defined as any labor organization whose formation, function or administrationhas
been assisted by any act defined as unfair labor practice by this Code

Purposeof labor organization: For collective bargaining

Union Registration

A labor organization cannot file a petition for registration unless it is registered with the DOLE.
Once it will be registered, it will become a legitimate labor organization with all the right and privileges
under the law.

Effect of Registration: Upon issuance of the certificate of registration, the union acquires the legal
personality.
The registration requirement of labor organization is considered constitutional based on the following
grounds:

a. It is not a limitation to the right of assembly or association which may be exercised with or
without said registration;
b. The Constitution does not guarantee these rights and privileges, much less said personality
which are mere statutory creations for the possession and exercise of which registration is
required to protect both labor and the public against abuses, fraud and impostors who pose
organizers, although not truly accredited agents of the union they purport to be; and
c. It is a valid exercise of police power because activities in which labor organization,
associations and union of workers are engaged affect public interest which should be
protected.

MODES OF REGISTRATION:

Section 1, RA 9481 provides for the mode of registration of a labor organization. A labor organization
can be registered as an independent or a chartered local.

SEC. 1. Article 234 of Presidential Decree No. 442, as amended, otherwise known as the Labor Code of
the Philippines, is hereby further amended to read as follows:

"ART. 234. Requirements of Registration. - A federation, national union or industry or trade

union center or an independent union shall acquire legal personality and shall be entitled to the
rights and privileges granted by law to legitimate labor organizations upon issuance of the
certificate of registration based on the following requirements:

(a) Fifty pesos (P50.00) registration fee;

(b) The names of its officers, their addresses, the principal address of the labor
organization, the minutes of the organizational meetings and the list of the workers who
participated in such meetings;

(c) In case the applicant is an independent union, the names of all its members
comprising at least twenty percent (20%) of all the employees in the bargaining unit
where it seeks to operate;

(d) If the applicant union has been in existence for one or more years, copies of its
annual financial reports; and

(e) Four copies of the constitution and by-laws of the applicant union, minutes of its
adoption or ratification, and the list of the members who participated in it."

SEC. 2. A new provision is hereby inserted into the Labor Code as Article 234-A to read as follows:
 "ART. 234-A. Chartering and Creation of a Local Chapter. - 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. The chapter shall acquire legal personality only for purposes
of filing a petition for certification election from the date it was issued a charter certificate.

The chapter shall be entitled to all other rights and privileges of a legitimate labor organization
only upon the submission of the following documents in addition to its charter certificate:

(a) The names of the chapter's officers, their addresses, and the principal office of the
chapter; and

(b) The chapter's constitution and by-laws: Provided, That where the chapter's
constitution and by-laws are the same as that of the federation or the national union,
this fact shall be indicated accordingly.

The additional supporting requirements shall be certified under oath by the secretary or
treasurer of the chapter and attested by its president."

CANCELLATION OF CERTIFICATE OF REGISTRATION (Sec. 5, RA 9481)

SEC. 5. Article 239 of the Labor Code is amended to read as follows:

"ART. 239. Grounds for Cancellation of Union Registration. - The following may constitute
grounds for cancellation of union registration:

(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 statements or fraud in connection with the election of

officers, minutes of the election of officers, and the list of voters;

(c) Voluntary dissolution by the members."

SEC. 7. A new provision, Article 242-A is hereby inserted into the Labor Code to read as follows:

"ART. 242-A. Reportorial Requirements. - The following are documents required to be

submitted to the Bureau by the legitimate labor organization concerned:

(a) Its constitution and by-laws, or amendments thereto, the minutes of ratification, and
the list of members who took part in the ratification of the constitution and by-laws
within thirty (30) days from adoption or ratification of the constitution and by-lam or
amendments thereto;

(b) Its list of officers, minutes of the election of officers, and list of voters within thirty
(30) days from election;
 (c) Its annual financial report within thirty (30) days after the close of every fiscal year;
and

(d) Its list of members at least once a year or whenever required by the Bureau.

Failure to comply with the above requirements shall not be a ground for cancellation of union
registration but shall subject the erring officers or members to suspension, expulsion from
membership, or any appropriate penalty."

RIGHTS AND CONDITIONS OF MEMBERSHIP

a. Protection of their money given to the union in form of union dues;

They are protected against unlawful collection of fees by the union and transparency
over union funds. The union members contribute union dues every month. The Union funds
must be used only for legitimate union activities. Article 250 of the LCP provides:

a. No arbitrary or excessive initiation fees shall be required of the members of

a legitimate labor organization nor shall arbitrary, excessive or oppressive
fine and forfeiture be imposed;
 
b. The members shall be entitled to full and detailed reports from their officers
and representatives of all financial transactions as provided for in the
constitution and by-laws of the organization;
 
Xxx

g. No officer, agent or member of a labor organization shall collect any fees,

dues, or other contributions in its behalf or make any disbursement of its
money or funds unless he is duly authorized pursuant to its constitution and
by-laws;

h. Every payment of fees, dues or other contributions by a member shall be

evidenced by a receipt signed by the officer or agent making the collection
and entered into the record of the organization to be kept and maintained
for the purpose;

i. The funds of the organization shall not be applied for any purpose or object
other than those expressly provided by its constitution and by-laws or those
expressly authorized by written resolution adopted by the majority of the
members at a general meeting duly called for the purpose;

j. Every income or revenue of the organization shall be evidenced by a record

showing its source, and every expenditure of its funds shall be evidenced by
a receipt from the person to whom the payment is made, which shall state
 the date, place and purpose of such payment. Such record or receipt shall
form part of the financial records of the organization.

k. The officers of any labor organization shall not be paid any compensation other
than the salaries and expenses due to their positions as specifically provided for in
its constitution and by-laws, or in a written resolution duly authorized by a majority
of all the members at a general membership meeting duly called for the purpose.
The minutes of the meeting and the list of participants and ballots cast shall be
subject to inspection by the Secretary of Labor or his duly authorized
representatives. Any irregularities in the approval of the resolutions shall be a
ground for impeachment or expulsion from the organization;

l. The books of accounts and other records of the financial activities of any labor
organization shall be open to inspection by any officer or member thereof during
office hours

NOTE:
The Secretary of Labor or his duly authorized representatives has the power to
inquire into the financial activities of legitimate labor organizations upon filing of
a complaint under oath.

In case of Union Dues:

 Three documentary requisites are needed in order to justify a valid levy of

increased union dues:
1. An authorization by a written resolution of the majority of all the
members at the general membership meeting duly called for the purpose;
2. The secretary’s record of the minutes of the meeting, which shall include
the list of all members present, the votes cast, the purpose of the special
assessment or fees and the recipient of such assessment or fees; and
3. Individual written authorizations for check-off duly signed by the
employees concerned.

 These three documents are also needed in chase of special

assessment for Union’s incidental expenses, attorney’s fees and
representation expenses.

“Check-Off”– a process or device whereby the employer, on agreement with the

Union, recognized as the proper bargaining representative, or on
prior authorization from the employees, deducts union
dues or agency fees from the latter’s wages and remits
them directly to the Union.

Legal provisions:
 Art. 228 Appearances and Fees

(b) No attorney’s fees, negotiation fees or similar charges of any

kindarising from any collective bargaining agreement shall be imposed
on any individual member of the contracting union: Provided,
However, that attorney’s fees may be charged against union funds in
an amount to be agreed upon by the parties. Any contract, agreement
or arrangement of any sort to the contrary shall be null and void. (As
amended by Presidential Decree No. 1691, May 1, 1980)

Art. 251 Rights and Conditions of Membership in a Labor Organization

(n) No special assessment or other extraordinary fees may be
leviedupon the members of a labor organization unless authorized by a
written resolution of a majority of all the members in a general
membership meeting duly called for the purpose. The secretary of the
organization shall record the minutes of the meeting including the list
of all members present, the votes cast, the purpose of the special
assessment or fees and the recipient of such assessment or fees. The
record shall be attested to by the president.

(o) Other than for mandatory activities under the Code, no

special assessments, attorney’s fees, negotiation fees or any
other extraordinary fees may be checked off fromany amount
due to an employee without an individual written authorization
duly signed by the employee. The authorization should
specifically state the amount, purpose and beneficiary of the
deduction

b. The union members have the right to elect their officers;

Art. 250 of the LCP:

(c) The members shall directly elect their officers, including those of the national union
or federation, to which they or their union is affiliated, by secret ballot at intervals of
five (5) years. No qualification requirements for candidacy to any position shall be
imposed other than membership in good standing in subject labor organization. The
secretary or any other responsible union officer shall furnish the Secretary of Labor
and Employment with a list of the newly-elected officers, together with the appointive
officers or agents who are entrusted with the handling of funds, within thirty (30)
calendar days after the election of officers or from the occurrence of any change in the
list of officers of the labor organization; (As amended by Section 16, Republic Act No.
6715, March 21, 1989)

c. The extent of participation of the union members affecting themselves in the organization;

d. The union members are also entitled to protection against unfair labor practice committed
by the union itself;
 e. Article 254 (e) of the LCP declares it illegal to discriminate in regard to wages, hours of work
and other terms and conditions for employment in order to encourage or discourage
membership in any labor organization.

f. Article 247 (p) provides that it shall be the duty of any labor organization and its officers to
inform its members on the provisions of its constitution and by-laws, collective bargaining
agreement, the prevailing labor relations systems and all their rights and obligations under
existing labor laws.

RIGHTS OF LEGITIMATE LABOR ORGANIZATIONS

The following are the rights that may be exercised by a legitimate organization:

1. Representation
- A labor organization exists to represent the workers against the employer.

2. Bargaining Agent
- A legitimate labor organization can only become the bargaining agent after it is chosen
by the workers to be their sole representative through a certification election.

3. Financial Statements
- A union may ask for financial statements from the employer:
a. after its certificate election
b. after being recognized as the sole bargaining representative
c. during the freedom period
d. during CBA negotiation

4. Property Rights
- Has the right to acquire and sell properties under its name

5. Personality to sue and be sued

6. Tax Exemptions

7. Other Activities (may do other activities for and in behalf of the members)

FOREIGN ACTIVITIES

Art. 269. Prohibition against aliens; exceptions. 

All aliens, natural or juridical, as well as foreign organizations are strictly prohibited from engaging
directly or indirectly in all forms of trade union activities without prejudice to normal contacts between
Philippine labor unions and recognized international labor centers: Provided, however, That aliens
working in the country with valid permits issued by the Department of Labor and Employment, may
exercise the right to self-organization and join or assist labor organizations of their own choosing for
purposes of collective bargaining: Provided, further, That said aliens are nationals of a country which
grants the same or similar rights to Filipino workers. (As amended by Section 29, Republic Act No. 6715,
March 21, 1989)

Art. 270. Regulation of foreign assistance.

a. No foreign individual, organization or entity may give any donations, grants or other forms of
assistance, in cash or in kind, directly or indirectly, to any labor organization, group of workers
or any auxiliary thereof, such as cooperatives, credit unions and institutions engaged in
research, education or communication, in relation to trade union activities, without prior
permission by the Secretary of Labor.

“Trade union activities” shall mean:

1. organization, formation and administration of labor organization;
2. negotiation and administration of collective bargaining agreements;
3. all forms of concerted union action;
4. organizing, managing, or assisting union conventions, meetings, rallies, referenda,
teach-ins, seminars, conferences and institutes;
5. any form of participation or involvement in representation proceedings, representation
elections, consent elections, union elections; and
6. other activities or actions analogous to the foregoing.

b. This prohibition shall equally apply to foreign donations, grants or other forms of assistance, in
cash or in kind, given directly or indirectly to any employer or employer’s organization to
support any activity or activities affecting trade unions.

c. The Secretary of Labor shall promulgate rules and regulations to regulate and control the giving
and receiving of such donations, grants, or other forms of assistance, including the mandatory
reporting of the amounts of the donations or grants, the specific recipients thereof, the projects
or activities proposed to be supported, and their duration.

Affiliation of Unions
- An independently registered union may affiliate with a national federation or union to gain
more strength.

Procedure

SEC. 2. A new provision is hereby inserted into the Labor Code as Article 234-A to read as
follows:

"ART. 234-A. Chartering and Creation of a Local Chapter. - 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. The chapter shall acquire legal personality only for purposes
of filing a petition for certification election from the date it was issued a charter certificate.

The chapter shall be entitled to all other rights and privileges of a legitimate labor organization
only upon the submission of the following documents in addition to its charter certificate:
 (a) The names of the chapter's officers, their addresses, and the principal office of the
chapter; and

(b) The chapter's constitution and by-laws: Provided, That where the chapter's
constitution and by-laws are the same as that of the federation or the national union,
this fact shall be indicated accordingly.

The additional supporting requirements shall be certified under oath by the secretary or
treasurer of the chapter and attested by its president."

Supervisory-Rank-and-file Union Affiliation

- Old ruling was, union composed of supervisory and rank-and-file employees does not exist.
But new ruling is any mingling between supervisory and rank-and-file employees in its
membership cannot affect its legitimacy for that is not among the grounds for cancellation
of its registration, unless such mingling was brought about by misrepresentation, false
statement or fraud.

Local Union Disaffiliation

- Disaffiliation of an independently-registered union does not affect its legitimacy status as a
labor organization.

APPROPRIATE BARGAINING UNIT

Bargaining Unit – a group of employees of a given employer, comprised of all or less than all of
the entire body of employees, which the collective interest of all the
employees, consistent with equity to the employer, indicated to be the best
suited to serve the reciprocal rights and duties of the parties under the
collective bargaining provision of the law.

GR: One bargaining agent (legitimate labor organization) per one bargaining unit.

Exception: Two or more bargaining agents are allowed in cases of large bargaining units

TEST TO DETERMINE THE CONSTITUENCY OF AN APPROPRIATE BARGAINING UNIT – 4

FACTORS:

1. Will of the Employees (Globe Doctrine)

2. Affinity and unity of employees’ interest (Substantial Mutual Interests Rule)
3. Prior Collective Bargaining History
4. Employment Status (Democratic Labor Association v. Cebu Stevedoring Co. Inc., GR. No. L-
10321; University of the Philippines v. Ferrer-Calleja, GR No. 96189)
Note: Where the employment status was not at issue but the nature of work of the employees
concerned; the Court stressed the importance of the 2 nd factor. (Belyca Corp., v. Calleja, GR. No. 77395)

Other factors:

1. Geography and Location

2. Policy of avoiding fragmentation of the bargaining unit.

GLOBE DOCTRINE

A practice designated as the Globe Doctrine, sanctions the holding of a series of elections, not for the
purpose of allowing the group receiving an overall majority of votes to represent all employees, but for
the specific purpose of permitting the employees in each of the several categories to select the group
which each chooses as bargaining unit (Kapisanan ng mgaManggagawasa Manila Road Co. v. Yard Crew
Union, GR Nos. L-16292-94).

Highly skilled or specialized technical workers may choose to form their own bargaining unit because
they may be in better position to bargain with the employer considering the market value of their skills.

COMMUNITY or MUTUALITY OF INTERESTS

The basic test in determining the appropriate bargaining unit is that a unit, to be appropriate, must
affect a grouping of employees who have substantial, mutual interests in wages, hours, working
conditions, and other subjects of collective bargaining (UP v. Ferrer-Calleja, GR 96189).

There are greater chances of success for collective bargaining process. The bargaining unit is designed to
maintain the mutuality of interest among employees in such unit.

When the interest between groups has changed over time, there is no reason to dissolve, change or
expand a certain bargaining unit.

PRIOR COLLECTIVE BARGAINING HISTORY

The existence of a prior collective bargaining history is neither decisive nor conclusive in the
determination of what constitutes an appropriate bargaining unit (Sta. Lucia East Commercial Corp. v.
SOLE, GR 162355).

EMPLOYMENT STATUS

Among the factors to be considered is the employment status of the employees to be affected (regular,
causal, seasonal, probationary, etc.), that is the positions and categories of work to which they belong
(BelycaCopr. V. Calleja, GR 77395)

GEOGRAPHY AND LOCATION

Geography and location only play a significant role if:

 a. The separation between the camps… and the different kinds of work in each … all militate in
favor of the system of separate bargaining units;
b. When the problems and interests of the workers are peculiar in each camp or department;
c. The system of having one collective bargaining unit in each camp… has operated
satisfactorily in the past. (Benguet Consolidated Inc. and Balatok Mining Co. v. Bobok
Lumberjack Association, GR L-11029)

CERTIFICATION ELECTION

Certification Electionis the process of determining, through secret ballot, the sole and exclusive
representative of the employees in an appropriate bargaining unit for purposes of collective bargaining
or negotiation.

The purpose of a certification election is precisely the ascertainment of the wishes of the majority of the
employees in appropriate bargaining unit: to be or not to be represented by a labor organization, and in
the affirmative case, by which particular labor organization.

METHODS OF ESTABLISHING MAJORITY STATUS:

1. Voluntary Recognition

Section 1. When and where to file. - In unorganized establishments with only one
legitimate labororganization, the employer may voluntarily recognize the representation
status of such a union. Withinthirty (30) days from such recognition, the employer and
union shall submit a notice of voluntaryrecognition with the Regional Office which issued
the recognized labor union's certificate of registrationor certificate of creation of a
chartered local.

Section 2. Requirements for voluntary recognition. - The notice of voluntary recognition

shall beaccompanied by the original copy and two (2) duplicate copies of the following
documents:

(a) a joint statement under oath of voluntary recognition attesting to the fact of voluntary
recognition;
(b) certificate of posting of the joint statement of voluntary recognition for fifteen (15)
consecutive daysin at least two (2) conspicuous places in the establishment or bargaining
unit where the union seeks tooperate;
(c) the approximate number of employees in the bargaining unit, accompanied by the
names of thosewho support the voluntary recognition comprising at least a majority of the
members of the bargainingunit; and
(d) a statement that the labor union is the only legitimate labor organization operating
within thebargaining unit.

All accompanying documents of the notice for voluntary recognition shall be certified under
oath by theemployer representative and president of the recognized labor union.
 Section 3. Action on the Notice. - Where the notice of voluntary recognition is sufficient in
form,number and substance and where there is no other registered labor union operating
within thebargaining unit concerned, the Regional Office, through the Labor Relations
Division shall, within ten(10) days from receipt of the notice, record the fact of voluntary
recognition in its roster of legitimatelabor unions and notify the labor union concerned.

Where the notice of voluntary recognition is insufficient in form, number and substance,
the RegionalOffice shall, within the same period, notify the labor union of its findings and
advise it to comply with the

necessary requirements. Where neither the employer nor the labor union failed to
complete therequirements for voluntary recognition under Section 2 of this Rule within
thirty (30) days from receipt ofthe advisory, the Regional Office shall return the notice for
voluntary recognition together with all itsaccompanying documents without prejudice to its
re-submission.

Section 4. Effect of recording of fact of voluntary recognition. - From the time of recording
ofvoluntary recognition, the recognized labor union shall enjoy the rights, privileges and
obligations of anexisting bargaining agent of all the employees in the bargaining unit.

Entry of voluntary recognition shall bar the filing of a petition for certification election by
any labor organization for a period of one (1) year from the date of entry of voluntary
recognition. Upon expirationof this one-year period, any legitimate labor organization may
file a petition for certification election inthe same bargaining unit represented by the
voluntarily recognized union, unless a collectivebargaining agreement between the
employer and voluntarily recognized labor union was executed andregistered with the
Regional Office in accordance with Rule XVII of these Rules.

NOTE:
The Supreme Court emphasized the role of democratic participation in the election of
bargaining agent which is the reason behind the prohibition of direct certification.

2. Certification Election
CONSENT ELECTION
An agreed election
Purpose: Merely to determine
the issue of majority
representation of all the
workers in the appropriate
collective bargaining unit
CERTIFICATION ELECTION
Ordered by the Med-Arbiter
Purpose: Aimed at determining
the sole and exclusive
bargaining agent of all the
employees in a n appropriate
collective bargaining unit
RUN-OFF ELECTION
An election between the labor
unions receiving the two highest
number of votes in a
certification or consent election
with three or more choices,
where such a certified or
consent election results in none
of the three or more choices
receiving the majority of the
valid votes cast.

NOTE:
  Withdrawal from union membership done after a petition for certification election has been
filed, does not vitiate such petition, is it not but logical to assume that such withdrawal cannot
work to nullify the registration of the union.

PETITION FOR CERTIFICATION ELECTION

 A verified complaint filed by the union or employer before the Med-Arbiter requesting the
latter to intervene and administer the conduct of secret balloting where the employees decide
who will be their bargaining representative in the negotiation with the employer.
 Allowed during freedom period or any time after a union has been registered with DOLE, if the
company is unorganized.
 It can also be filed if contract bar rule and one-year bar rules do not apply.

FORM AND CONTENTS OF PETITION (Sec.4 Rule VIII DO No. 40-03)

Section 4. Form and contents of petition. - The petition shall be in writing, verified under oath by
thepresident of petitioning labor organization. Where the petition is filed by a federation or national
union, itshall be verifiedunder oath by the president or its duly authorized representative. The petition
shall containthe following:

(a) the name of petitioner, its address, and affiliation if appropriate, the date and number of
itscertificate of registration. If the petition is filed by a federation or national union, the date and
number ofthe certificate of registration or certificate of creation of chartered local;

(b) the name, address and nature of employer's business;

(c) the description of the bargaining unit;

(d) the approximate number of employees in the bargaining unit;

(e) the names and addresses of other legitimate labor unions in the bargaining unit;

(f) a statement indicating any of the following circumstances:

1) that the bargaining unit is unorganized or that there is no registered collective

bargaining agreement covering the employees in the bargaining unit;

2) if there exists a duly registered collective bargaining agreement, that the petition is
filed within the sixty-day freedom period of such agreement; or

3) if another union had been previously recognized voluntarily or certified in a

validcertification, consent or run-off election, that the petition is filed outside the one-
yearperiod from entry of voluntary recognition or conduct of certification or run-off
electionand no appeal is pending thereon.
 (g) in an organized establishment, the signature of at least twenty-five percent (25%) of all
employeesin the appropriate bargaining unit shall be attached to the petition at the time of its
filing; and

(h) other relevant facts.

UNION AS THE PETITIONER

Any legitimate labor organization may file a petition for certification election.

ORGANIZED ESTABLISHMENT UNORGANIZED ESTABLISHMENT

SEC. 10. Article 256 of the Labor Code is hereby amended SEC. 11. Article 257 of the Labor Code is
to read as follows: hereby amended to read as follows:

"ART. 256. Representation Issue in Organized "ART. 257. Petitions in Unorganized

Establishments. - In organized establishments, when a
verified petition questioning the majority status of the
incumbent bargaining agent is filed by any legitimate
labor organization including a national union or
federation which has already issued a charter
certificate to its local chapter participating in the
certification election or a local chapter which has been
issued a charter certificate by the national union or
federation before the Department of Labor and
Employment within the sixty (60)-day period before the
expiration of the collective bargaining agreement, the
Med-Arbiter shall automatically order an election by
secret ballot when the verified petition is supported by
the written consent of at least twenty-five percent
(25%) of all the employees in the bargaining unit to
ascertain the will of the employees in the appropriate
bargaining unit. To have a valid election, at least a
majority of all eligible voters in the unit must have cast
their votes. The labor union receiving the majority of
the valid votes cast shall be certified as the exclusive
bargaining agent of all the workers in the unit. When an
election which provides for three or more choices
results in no choice receiving a majority of the valid
votes cast, a run-off election shall be conducted
between the labor unions receiving the two highest
number of votes: Provided, That the total number of
votes for all contending unions is at least fifty percent
(50%) of the number of votes cast. In cases where the
petition was filed by a national union or federation, it
shall not be required to disclose the names of the local
Establishments. - In any establishment
where there is no certified bargaining
agent, a certification election shall
automatically be conducted by the
Med-Arbiter upon the filing of a
petition by any legitimate labor
organization, including a national union
or federation which has already issued
a charter certificate to its 1ocal/chapter
participating in the certification election
or a local/chapter which has been
issued a charter certificate by the
national union or federation. In cases
where the petition was filed by a
national union or federation, it shall not
be required to disclose the names of
the local chapter's officers and
members."
 chapter's officers and members.

At the expiration of the freedom period, the employer

shall continue to recognize the majority status of the
incumbent bargaining agent where no petition for
certification election is filed."

NOTE:
Art. 269 of the LCP mandates that a certification election shall automaticallybe conducted by the Med-
Arbiter upon filing of a petition by a legitimate labor organization.
EMPLOYER AS THE PETITIONER

Art. 270. When an employer may file petition. 

When requested to bargain collectively, an employer may petition the Bureau for an election. If there is
no existing certified collective bargaining agreement in the unit, the Bureau shall, after hearing, order a
certification election.

All certification cases shall be decided within twenty (20) working days.

The Bureau shall conduct a certification election within twenty (20) days in accordance with the rules
and regulations prescribed by the Secretary of Labor.

Employer – as bystander

SEC. 12. A new provision, Article 258-A is hereby inserted into the Labor Code to read as follows:

"ART. 258-A. Employer as Bystander. - In all 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 a concomitant right to oppose a petition for certification election. The
employer's participation in such proceedings shall be limited to: (1) being notified or informed of
petitions of such nature; and (2) submitting the list of employees during the pre-election
conference should the Med-Arbiter act favorably on the petition."

WHEN TO FILE PETITION FOR CERTIFICATION ELECTION?

Petition for certification election may be filed:

General Rule: Anytime

Exceptions:

1. One-Year Bar Rule

2. Negotiation Bar Rule
3. Deadlock Bar Rule
 4. Contract Bar Rule

ONE-YEAR BAR RULE

No certification election may be held whin one year form the time a valid certification, consent or run-
off election has been conducted within the bargaining unit.

If the order of the mid-arbiter certifying the results of the election has been appealed, the running of the
one-year period shall be suspended until the decision on the appeal becomes final and executory.

The BAR also applies to a SEBA Certification under Rule VII. The certification shall bar the filing of a
petition for certification election by any labor organization for a period one year from the date of its
issuance.

NEGOTIATION BAR RULE

No certification of election may be filed when:

1. Within one year after the valid certification election
2. The DULY CERTIFIED union has COMMENCED AND SUSTAINED negotiations in good faith with
the employer
3. In accordance with Art. 261 of the Labor Code Sec. 3b, Rule VIII, Book V

DEADLOCK BAR RULE

No certification of election may be filed when:

1. The incumbent or certified bargaining agent is a party
2. A bargaining deadlock had been:
a. Submitted to the conciliation or arbitration, or,
b. Had become the subject of a valid notice of strike or lockout.

A deadlockis defined as the counteraction of things producing entire stoppage;

 A state of inaction or of neutralization caused by the opposition of persons or of factions (as in

government or voting body): standstill
 The word is synonymous with the word impasse with … presupposes reasonable effort at good
faith bargaining which, despite noble intention, does not conclude in agreement between the
parties.

CONTRACT BAR RULE

BLR shall not entertain any petition for certification election or any other action which may disturb the
administration of DULY REGISTERED existing collective bargaining agreements affecting the partie,
except under the freedom period.

No petition for certification election may be filed when a CBA between the employer and SEBA has been
registered in accordance with Art. 237.
Where such CBA is registered, the petition may be filed only within sixty days prior to its expiry.

The Contract Bar Rule shall apply in any of the following:

1. When there exists an unexpired registered CBA;
2. When there is no challenge on the representation status of the incumbent union during the
freedom period.

Effect of pendency of Cancellation of Union Registration to Certification Election

- It shall still be treated as proper.

ELECTION RULES AND PROCEDURE

Section 1. Raffle of the case. - Within twenty-four (24) hours from receipt of the notice of entry of
finaljudgment granting the conduct of a certification election, the Regional Director shall cause the raffle
ofthe case to an Election Officer who shall have control of the pre-election conference and
electionproceedings.

Section 2. Pre-election conference. - Within twenty-four (24) hours from receipt of the assignment
forthe conduct of a certification election, the Election Officer shall cause the issuance of notice of pre-
election conference upon the contending unions and the employer, which shall be scheduled within
ten(10) days from receipt of the assignment.

The pre-election conference shall set the mechanics for the election and shall determine, amongothers,
the following:

(a) date, time and place of the election, which shall not be later than forty-five (45) daysfrom the
date of the first pre-election conference, and shall be on a regular working day and within the
employer's premises, unless circumstances require otherwise;

(b) list of eligible and challenged voters;

(c) number and location of polling places or booths and the number of ballots to beprepared
with appropriate translations, if necessary;

(d) name of watchers or representatives and their alternates for each of the partiesduring
election;

(e) mechanics and guidelines of the election.

Section 3. Waiver of right to be heard. - Failure of any party to appear during the pre-
electionconference despite notice shall be considered as a waiver to be present and to question or
object toany of the agreements reached in said pre-election conference. Nothing herein, however, shall
deprivethe non-appearing party or the employer of its right to be furnished notices of subsequent pre-
electionconferences and to attend the same.
Section 4. Minutes of pre-election conference. - The Election Officer shall keep the minutes ofmatters
raised and agreed upon during the pre-election conference. The parties shall acknowledge
thecompleteness and correctness of the entries in the minutes by affixing their signatures thereon.
Whereany of the parties refuse to sign the minutes, the Election Officer shall note such fact in the
minutes,including the reason for refusal to sign the same. In all cases, the parties shall be furnished a
copy ofthe minutes.The pre-election conference shall be completed within thirty (30) days from the date
of the first hearing.

POSTING OF NOTICES

Section 6. Posting of Notices. - The Election Officer shall cause the posting of notice of election atleast
ten (10) days before the actual date of the election in two (2) most conspicuous places in thecompany
premises. The notice shall contain:

(a) the date and time of the election;

(b) names of all contending unions;

(c) the description of the bargaining unit and the list of eligible and challenged voters.

The posting of the notice of election, the information required to be included therein and the duration
ofposting cannot be waived by the contending unions or the employer.

VOTING LIST AND VOTERS

Section 5. Qualification of voters; inclusion-exclusion. - All employees who are members of

theappropriate bargaining unit sought to be represented by the petitioner at the time of the issuance of
theorder granting the conduct of a certification election shall be eligible to vote. An employee who
hasbeen dismissed from work but has contested the legality of the dismissal in a forum of
appropriatejurisdiction at the time of the issuance of the order for the conduct of a certification election
shall beconsidered a qualified voter, unless his/her dismissal was declared valid in a final judgment at
the timeof the conduct of the certification election.

In case of disagreement over the voters' list or over the eligibility of voters, all contested voters shall
beallowed to vote. But their votes shall be segregated and sealed in individual envelopes in
accordancewith Sections 10 and 11 of this Rule.

VALID VOTES CAST

- At least a majority of all eligible voters in the unit must have cast their votes.

PROTEST

- Any party-in-interest may file a protest based on the conduct or mechanics of the election.
- Must be recorded in the minutes of election proceedings
- It must be formalized with the Med-Arbiter with specific grounds, arguments and evidence,
within five days after the close of the election proceedings.
APPEAL

Art. 259. Appeal from certification election orders. Any party to an election may appeal the order or
results of the election as determined by the Med-Arbiter directly to the Secretary of Labor and
Employment on the ground that the rules and regulations or parts thereof established by the Secretary
of Labor and Employment for the conduct of the election have been violated. Such appeal shall be
decided within fifteen (15) calendar days. (As amended by Section 25, Republic Act No. 6715, March 21,
1989)

RUN-OFF ELECTION (RULE X, DO 04-03)

Section 1. When proper. - When an election which provides for three (3) or more choices results in none
of the contending unions receiving a majority of the valid votes cast, and there are no objections or
challenges which if sustained can materially alter the results, the Election Officer shall motupropio
conduct a run-off election within ten (10) days from the close of the election proceedings between the
labor unions receiving the two highest number of votes; provided, that the total number of votes for all
contending unions is at least fifty (50%) percent of the number of votes cast. "No Union" shall not be a
choice in the run-off election. Notice of run-off elections shall be posted by the Election Officer at least
five (5) days before the actual date of run-off election.

Section 2. Qualification of voters. - The same voters' list used in the certification election shall be used
in the run-off election. The ballots in the run-off election shall provide as choices the unions receiving
the highest and second highest number of the votes cast. The labor union receiving the greater number
of valid votes cast shall be certified as the winner, subject to Section 20, Rule IX.

CERTIFICATION OF DESIGNATED MAJORITY UNION (Sec. 16 Rule IX, DO NO 04-03)

Section 16. Certification of Collective Bargaining Agent. - The union which obtained a majority of the
valid votes cast shall be certified as the sole and exclusive bargaining agent of all the employees in the
appropriate bargaining unit within five (5) days from the day of the election, provided no protest is
recorded in the minutes of the election.

COLLECTIVE BARGAINING
 COLLECTIVE BARGAINING DEFINED
a. Collective bargaining is the negotiations towards a collective agreement, is one of the democratic
frame work under the Labor Code designed to stabilize labor relations between the management and
the workers and to create a climate of sound and stable industrial peace.

b. NOTE:

    1. After the union is certified as the exclusive bargaining agent, it can now start the process of
collective bargaining. It is given 1 year from the date of certification to start the negotiation, otherwise
1-year bar rule will not apply.
    2. It is an Unfair Labor Practice for an employer to refuse to meet and convene with the Labor
Organization for purposes of negotiation.

 PROCEDURE

a. Procedure in collective bargaining: The following procedures shall be observed in collective

bargaining:

1. When a party desires to negotiate an agreement, it shall serve a written notice upon the other party
with a statement of its proposals. The other party shall make a reply not later than 10 calendar days
from receipt of the notice.

2. CASES:
a. The utter lack of interest in bargaining with the union is obvious in its failure to reply timely to the
proposals of the other party.

b. Bad faith on the part of the employer in its refusal to bargain must be proved by evidence.

c. Good faith is presumed and he who alleges bad faith has the duty to prove the same.
 SETTLEMENT DIFFERENCES AND CONCILIATION

a. Should difference arise on the basis of such notice and reply, either party may request for a
conference which shall begin not later than (10) calendar days from the date of request.

b. If the dispute is not settled, the Board shall intervene upon the request of either or both parties or at
its own initiative and immediately call parties for conciliation meeting. The Board shall have the power
to issue subpoenas requiring the attendance of the parties to such meeting. It shall be the duty of the
parties to participate fully and promptly in the conciliation meetings the Board may call;

c. During the conciliation proceeding in the Board, the parties are prohibited from doing any act which
may disrupt or impede the early settlement of disputes; and

d. The Board shall exert effort in settling disputes amicably.

 PROHIBITED ACTIVITIES

a. During the conciliation proceedings in the Board, the parties are prohibited from doing any act which
may disrupt or impede the early settlement of the disputes.

 DUTY TO BARGAIN

a. The duty bargain is the performance of a mutual obligation to meet and convene promptly and
expeditiously in good faith for the purpose of negotiating an agreement. Both parties are required to
perform their mutual obligations to meet and convene expeditiously in good faith for the purpose of
negotiating an agreement and executing a contract incorporating the agreement.

b. Duty to bargain also means that neither party shall terminate nor modify such agreement during its
lifetime. However, either party can serve a written notice to terminate or modify the agreement at least
60 days prior to its expiration. It shall be the duty of both parties to keep the status quo and to continue
the effectivity of the terms and conditions of the agreement during the 60-day period.

 BARGAINABLE ISSUES

a. All aspects involving employment.

COLLECTIVE BARGAINING AGREEMENT

 INTERPRETATION AND NATURE

a. A Collective Bargaining Agreement (CBA) is the law between the parties and they are obliged to
comply with its provisions.

b. When the CBA is clear and unambiguous, it becomes the law between the parties and compliance
therewith is mandated by the express policy of the law.

c. If the terms of the CBA are clear and leaves no doubt upon the intentions of the contracting parties,
the literal meaning of their stipulation shall control.

d. CBA must be construed liberally.

e. Any doubt in the interpretation of any law or provision affecting labor should be resolved in favor of
labor.

f. 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.

g. A CBA is not merely contractual in nature but impressed with public interest.

 DURATION OF AGREEMENT

a. Representation Issue: Any CBA that the parties entered insofar as representation aspect is concerned
shall be for a term of 5 years

b. Economic Issue: All other provisions of a CBA shall be renegotiated not later than 3 years after its
execution.

c. Reopening period: No petition questioning the majority status of the incumbent bargaining agent shall
be entertained and no certification election shall be conducted by the DOLE outside the 60-day period
immediately before the date of expiry of the 5-year term of the CBA.
  EFFECT OF EXPIRY

a. Any agreement on the provisions of the CBA entered into within 6-months from the date of the expiry
of the terms of the provision in the CBA, shall retroact to the day immediately following such date. If any
such agreement is entered into beyond 6 months, the parties shall agree on the duration of
retroactivity. In case of a deadlock in the renegotiation of the CBA, the parties may exercise their rights
under this code.

b. As a general rule, a CBA is negotiated within 6-months after the expiration of the existing CBA
retroacts to the day immediately following such date and if agreed thereafter, the effectivity depends on
the agreement of the parties.

 REGISTRATION OF CBA

a.  CBA shall be registered with the DOLE

b. If the CBA is not registered, the CONTRACT BAR RULE does not apply and majority status of the
certified bargaining agent can be question by a petition for certification election.

 CONTRACT BENEFICIARIES

a. When a CBA is entered by the union representing the employees and the employer, even the non-
member employees are entitled to the benefits of the agreement.

b. To accord benefits only to members of the union without valid reason shall be discrimination against
non-members. Hence, to be entitled to the benefits under the CBA, the employees must be members of
the bargaining unit, but not necessarily of the LO designated as the bargaining agent.

 UNION SECURITY ARRANGEMENTS

a. A requirement of membership in a recognized collective bargaining agent as a condition of

employment is not prohibited by law, except those employees who are already members of another
union at the time of the signing of the CBA.

b. Employees of an appropriate bargaining unit who are not members of the recognized bargaining
agent may be assessed a reasonable fee equivalent to the dues and other fees paid by members of the
recognized bargaining agent, if such non-union member accepts the benefits under the CBA.

c. The law allows stipulations for union shop and closed shop as means of encouraging workers to join
and support unions of their choice.

d. Enforcement of union security clause has been recognized by the SC as a ground to terminate
employment.

e. In terminating employment by means of enforcing unions security clause, the employer needs only to
determine and prove that:
1. The union security clause is applicable
2. The union is requesting for the enforcement of the union security clause
 3. There is sufficient evidence to support the unions decision to expel the employee
UNION SECURITY CLAUSE IN CBA’s
 KINDS OF UNION SECURITY CLAUSE

a. Agency fee: the collection of agency fees in amount equivalent to union dues and fees, from
employees who are not members of union is recognized by law.

Employees of an appropriate bargaining unit who are not members of the recognized collective
bargaining agent may be assessed reasonable fees equivalent to union dues and fees paid by the
recognized collective bargaining agent, if such non- union member accepts the benefits of the CBA.

b.  Closed shop: A closed shop agreement is an agreement whereby an employer binds himself to hire
only members of the contracting union who must continue to remain members of good standing to
keep their jobs. A CBA provision for closed shop agreement is valid form of union security clause and it
is not a restriction on the right to freedom of association guaranteed by the Constitution.

c.  Union shop: A union shop clause has been defined as a form of union security clause wherein non-
members may be hired, but to retain employment must become union members for a certain period.

d. 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 agreement is terminated.

SCOPE OF UNION SECURITY CLAUSE

 EMPLOYEES EXEMPTED FROM UNION SECURITY CLAUSE

a.  Employees who at the time the union shop agreement took effect are bona fide members of a
religiousorganization which prohibits its members from joining labor unions on religious groups.

b.  Employees already in service and already members of a union other than the majority at the time the
union shop agreement took effect

c. Confidential employees who are excluded from RAFE bargaining unit

d. Employees excluded from the union shop by express terms of the agreement
 TERMINATION OF EMPLOYMENT DUE TO APPLICATION
OF UNION SECURITY CLAUSE

 TERMINATION DUE TO UNION SECURITY CLAUSE IS A JUST CAUSE

a. The SC considers termination of employment due to union security clause as a just cause. Being a just
cause, there is no obligation to pay separation pay to the employee. The employee is at fault for not
becoming a member of the union.  However, the company must comply the notice requirement before
terminating an employee based on this ground. The refusal of the employee to become a member of the
union constitutes willful disobedience.
b. The union security clause binds the employer and the union.  Hence, it becomes a policy of the
employer which is lawful which the employer must follow.

GRIEVANCE MACHINERY

 NATURE OF GRIEVANCE
a. Grievance is any disagreement between the union and the company as to the application and
interpretation of actual benefits and provisions of the contract. Other matters subject of collective
bargaining or regulated by labor laws shall not be considered grievance

 GRIEVANCE PROCEDURE IN THE CBA

a. Grievance procedure refer to internal rules procedures established by parties in the CBA with
voluntary arbitration as the terminal step, which are intended to resolve all issues arising from the
implementation and interpretation of the collective agreement.
b. The parties to a CBA shall include in the provisions that will ensure the mutual observance of the
terms and conditions. They shall establish a machinery for the adjustment and resolution of grievances.
c. Grievances submitted to grievance machinery which are not settled within 7 calendar days from the
date of submission shall automatically be referred to the voluntary arbitration prescribed in the CBA

VOLUNTARY ARBITRATION

 VOLUNTARY ARBITRATOR DEFINED

a. Voluntary arbitrator is any person accredited by the Board, or any person named in the CBA by the
parties to act as voluntary arbitrator, or one chosen, with or without the assistance of the National
Conciliation and Mediation Board, pursuant to a selection procedure agreed upon in the CBA or any
official that may be authorized by the Secretary of Labor and Employment to act voluntary arbitrator
upon the written request and agreement of the parties in a labor dispute.
  ARBITRATION SELECTION
a. The parties in the CBA shall name or designate their representative in the grievance machinery, and if
unsettled it shall be referred to the voluntary arbitrators designated by the parties in the CBA.

UNFAIR LABOR PRACTICE

 ULP DEFINED
a. Any unfair labor practice expressly defined by the code. ULP violates the constitutional right of the
workers and employees to self-organization. It disrupts industrial peace and hinder the promotion of
healthy and stable labor-management relations.
b. It refers to acts that violate workers’ rights

 CONCEPT OF ULP
a. The Labor Arbiter shall give utmost priority to hear and resolve cases involving ULP. They shall resolve
the case within 30 days from the time they are submitted for decision. Recovery of civil liability in the
administrative proceeding shall bar recovery under the civil code.
b. No criminal prosecution shall be instituted without a final judgment that ULP was committed.
c. During the pendency of the administrative proceeding the running of the period of prescription of the
criminal offense shall be interrupted.
d. The burden of proof in proving ULP reside on the one who makes an allegation.

 CIVIL REMEDIES IN ULP

a. ULP are not only violations of civil rights of both labor and management but also criminal offense
against the state.
b. The civil aspects of all cases involving ULP which may include claims for actual, moral, exemplary and
other forms of damages, attorney’s fees and other affirmative reliefs shall be under the jurisdiction of
LA.
c. To warrant an award of moral damages, it must be shown that the dismissal of the employee was
attended to by bad faith, or constituted an act oppressive to labor, or was done in a manner contrary to
morals, good customs or public policy.

 CRIMINAL PROSECUTION
a. The law criminalized ULP
b. Fine not less than 1k nor more than 10k or imprisonment not less than 3 months nor more than 3
years or both
c. Alien found guilty of ULP shall be deported after completion of service of sentence
d. Criminal offenses punished in the Labor Code shall be under the concurrent jurisdiction of MTC, CTC
or RTC
e. ULP committed by artificial persons, the officers shall be liable.
f. Offenses penalized under the LC shall prescribe in 3 years
g. ULP shall be filed with the appropriate agency within 1 year from accrual of such ULP; otherwise, they
shall be forever barred.
 NATURE OF VIOLATION 
a. It is a violation of the right to SO
b. ULP is violation against right to collective bargaining

 WHO CAN COMMIT ULP?

a.  Employer: It shall be unlawful for an employer to commit the following:
1. Interfere with, restrain or coerce employees in the exercise of their right to SO
2. Require as a condition of employment that a person or an employee shall not join a LO or shall
withdraw from one which he belongs
3. Contract out services or functions being performed by union members when such will interfere
with, restrain or coerce employees in the exercise their right to SO
4. Initiate, dominate, assist or otherwise interfere with the formation or administration of any LO
5. To discriminate in order to encourage or discourage membership in LO
6. To dismiss, discharge or otherwise prejudice or discriminate against an employee for having
given or being about to give testimony under this Code
7. To violate the duty to bargain collectively
8. To pay negotiation and attorney’s fees to the union or its officers or agents as part of the
settlement of any issue in collective bargaining or any other dispute
9. To violate CBA

b. Labor organization: It shall be deemed ULP for a labor organization, its officers, agents or
representatives who shall commit the following:
1. Restrain or coerce employees in the exercise of their right to SO
2. Cause or attempt to cause an employer to discriminate against an employee
3. Violate the duty or refuse to bargain collectively with the employer
4. Cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money
or other things of value
5. To ask for or accept negotiation or attorney’s fee from employers as part of the settle of any
issue in collective bargaining or any other dispute
6. To violate CBA
  WHO ARE LIABLE FOR ULP?
a. Union (OFFICERS)
b. Employer

 EMPLOYER MOTIVE AND TOTALITY CONDUCT RULE

a. This means that the culpability of an employer’s remarks was to be evaluated no only on the basis of
their implicit implications, but were to be appraised against the background and conjunction with
collateral circumstances.

 COMPROMISE
a. A compromise made by the union and the management are deemed valid if it was made and agreed
upon by the parties voluntarily.

CONCERTED ACTIVITIES

Right to engage in Concerted Activities

 What is the“Right to Strike”?

The most potent power of the workers against the mighty employer. However, it is a
weapon that must be used only as a last resort.

Right to strike is guaranteed byArticle 278(b) of the Labor Code (LC):

It says, the right of legitimate labor organizations to strike and picket and of employers
to lockout, consistent with the national interest, shall continue to be recognized and respected.
However, no labor union may strike and no employer may declare a lockout on grounds
involving inter-union and intra-union disputes.

 Is the Right to engage in concerted activities absolute?

The right of workers to engage in concerted activities is not absolute. There are
limitations imposed by law.

A limitation on the right to strike à Art. 279(a) of the LC provides:

No labor organization or employer shall declare a strike or lockout without first having
bargained collectively in accordance with Title VII of this Book or without first having filed the
notice required in the preceding Article or without the necessary strike or lockout vote first
having been obtained and reported to the Ministry.

 What is the effect of an unlawful lockout or illegal strike?

Art. 279 LC
 Any worker whose employment has been terminated as a consequence of any
unlawful lockout shall be entitled to reinstatement with full backwages. Any union officer who
knowingly participates in an illegal strike and any worker or union officer who knowingly
participates in the commission of illegal acts during a strike may be declared to have lost his
employment status: Provided, That mere participation of a worker in a lawful strike shall not
constitute sufficient ground for termination of his employment, even if a replacement had
been hired by the employer during such lawful strike.

 Is the right to strike of the employees in the private sector absolute?

It is hornbook principle that the exercise of the right of private sector employees to
strike is not absolute. (see Section 3 of Article XIII of the 1987 Constitution)

 What are the prohibited activities?

Even if the purpose of a strike is VALID, the strike may still be held illegal where the
means employed are illegal.

 What renders the means employed illegal?

The employment of violence, intimidation, restrain or coercion in carrying out
concerted activities which are injurious to the right to property. So as picketing or the
obstruction to the free use of property or the comfortable enjoyment of life or property, when
accompanied by intimidation, threats, violence and coercion as to constitute nuisance. (Soriano
Aviation v Employees Assoc. of Soriano Aviation)

 Definition of Terms
Art. 219 of the LC
(o) Strike – any temporary stoppage of work by the concerted action of employees as a result
of an industrial or labor dispute.
(p) Lockout – any temporary refusal of an employer to furnish work as a result of an industrial
or labor dispute.

(q) Internal Union Dispute - all disputes or grievances arising from any violation of or
disagreement over any provision of the constitution and by-laws of a union, including any
violation of the rights and conditions of union membership provided for in this Code.

(r) Strike-breaker - any person who obstructs, impedes, or interferes with by force, violence,
coercion, threats, or intimidation any peaceful picketing affecting wages, hours or conditions of
work or in the exercise of the right of self-organization or collective bargaining.

(s) Strike area - the establishment, warehouses, depots, plants or offices, including the sites or
premises used as runaway shops, of the employer struck against, as well as the immediate
vicinity actually used by picketing strikers in moving to and fro before all points of entrance to
and exit from said establishment.

 What is the Nature of Strike?

 Any temporary stoppage of work in an establishment by the concerted action of its employee
as a result of an industrial or labor dispute. (Sec. 1, Art. III of the NCMB Manual of procedure for
conciliation and mediation cases) [this statement is alike with Art, 219 (o) of the LC]

Requisites of Strike
 What are the Grounds for VALID/LEGAL strike or lock-out ?
1. Deadlock in collective bargaining
2. Unfair labor practice (ULP)
3. Flagrant and/or malicious refusal to comply with the economic provisions of the
collective bargaining agreement. (Sec. 1, Rule V of the NCMB Manual of procedure for
conciliation and mediation cases)

 What grounds may render the notice NOT duly filed?

The notice of strike/lockout alleging the ff grounds may make the notice NOT duly filed:
1. Inter-union and intra-union disputes
2. Issues already brought to voluntary or compulsory arbitration
3. Mere violation of the CBA involving political provisions. (Sec. 3, Rule IV of the
NCMB Manual of procedure for conciliation and mediation cases)

“Notice” of Strike(the next step if there exist a valid ground is the filing of the notice of strike)

 What shall the notice state?

1. Names and addressed of the employer and the union involved
2. Nature of the industry of the employer
3. Number of union members and of the workers in the bargaining unit
4. Other relevant data (e.g. brief statement or enumeration of all pending labor disputes
involving the same parties)

In case of bargaining deadlocks, the notice shall further state the ff:

1. Unresolved issues in the bargaining negotiations accompanied by written

proposals of the union
2. Counterproposals of employer and proof of a request for conference to settle
differences.

In case of ULP, the notice, if practicable, shall further state:

1. The acts complained of and the efforts taken to resolve the dispute

 What happens if the notice does not comply with the above-mentioned
requirements?
 Any notice which does not conform with the requirements of this … shall be DEEMED AS
NOT HAVING BEEN FILED… (Sec. 2, Rule IV of the NCMB Manual of procedure for conciliation
and mediation cases)

 Who may file the Notice to strike/declare as strike/request for preventive mediation
in cases of deadlock or ULP?
1. Any certified or duly recognized bargaining representative
2. In absence if #1, any legitimate labor organization BUT only on grounds of ULP.

 Who may file a Notice or declare lockout or request for preventive mediation of the
same? Employer

 Where to file a notice of strike or lockout or request for preventive mediation?

Regional branch having jurisdiction over the workplace of the union members.

 May the venue be waived?

Yes. By written agreement of both parties the venue of the dispute shall be deemed waived.
(Sec. 4, Rule IV of the NCMB Manual of procedure for conciliation and mediation cases)

 What does the CONCILIATOR do during the initial joint or separate meeting ?
1. Properly identify and specify the real issues raised in the notice
2. If the notice carries several charges of ULP, the conciliator must clarify the specific acts
of ULP alleged to have been committed. (Sec. 5, Rule IV of the NCMB Manual of
procedure for conciliation and mediation cases)

 What does the Conciliator do after being assigned to handle a notice of strike?
a. If it appears that the issues raised are proper subjects of the grievance machinery hence
not strikeable, the conciliator shall refer the resolution of the issues to the grievance
machinery, including voluntary arbitration provided by the CBA and DO 7-1987.
b. Disputes arising from questions of interpretation or implementation of the agreement
and company personnel policies – refer to grievance machinery.
c. Disputes arising from the wage distortion resulting from the wage order – refer to the
appropriate regional branch of the NLRC if not settled within 10 calendar days of
conciliation.
d. If the parties agreed to suspend the running of the cooling-off period(refer to
succeeding notes), the conciliator must convince them to limit the period of suspension
to 45 calendar days after which it shall be considered having been dropped from the
business calendar of the office. (Sec. 6, Rule V of the NCMB Manual of procedure for
conciliation and mediation cases)

 What will the Conciliator do if the Notice of strike or lockout is anchored on Invalid
grounds?
 The Conciliator shall convince the parties to voluntarily withdraw the notice without
prejudice to further conciliation proceedings. Otherwise, the he shall recommend to the
Director II that the notice be treated as a preventive mediation case.

 What will the Conciliator do if the issues in the Notice of strike or lockout involves
violations of the Labor standard Laws?
If the issues involve violation of the Labor Standard Laws, and the parties opt not to
continue – The Conciliator, through the Dir. II, shall refer the case to the Regional Director.

 What will the Conciliator do if the issues in the Notice of strike or lockout involves
questions of representation?
The Conciliator must ascertain whether there is a petition for certification election, or
direct certification, pending before the Med-Arbiter at the Regional Office or on appeal with the
office of the Secretary.

1. If such case is pending, the Conciliator, through Dir. II, shall promptly advise the
Regional Director/Office of the Secretary of the existence of the notice of strike.
(Purpose? To enable the offices to act on the case at the earliest time possible)
2. If NO such case is pending, the conciliator shall exert diligent efforts to enable the
parties to settle the issue though voluntary recognition or consent election.
a. If settlement is reached – the conciliator, through Dir. II, shall furnish the RD
a copy of the agreement.
b. If no consent was given – the conciliator shall advise the party concerned to
file the necessary petition with the appropriate body. (Sec. 3, Rule V of the
NCMB Manual of procedure for conciliation and mediation cases)

 What is the Cooling-off period for Bargaining Deadlocks and ULP?

For Bargaining Deadlocksà 30 days

For Unfair Labor Practice (ULP) à 15 days

EXCECPTION: the 15-day period shall not apply in cases where the ULP involves the
dismissal from employment of union officers duly elected in accordance with the union
constitution and by-laws which may constitute union-busting where the existence of the union
is threatened. The union may take action immediately after the strike vote were conducted and
submitted to the regional branch of the board.

 When does the cooling-off period begins when the notice is sent via registered mail?

The notice of strike is sent by registered mail the beginning of the cooling-off period
shall be the date of receipt by the employer of the notice. (Sec. 4, Rule IV of the NCMB Manual
of procedure for conciliation and mediation cases)
 GUIDELINES when a notice of strike or lockout is CONVERTED into PREVENTIVE
MEDIATION:

1. Clearly determine whether the issues raised are strikeable or not.

2. If conversion is warranted, a written recommendation is required from the Conciliator-
Mediator after close consultation with the Regional Branch Director.
3. The written recommendation must be formally endorsed to the Regional Branch
Director II for approval
4. *** The conversion must be done BEFORE the cooling-off period expires or before
the union conducts its strike balloting.
5. Parties concerned must be formally notified of the action
6. The notice shall be dropped form the notices of strike/lockouts and be renumbered as
a preventive mediation case and a conference is set on a specific date. However, if
there exist unresolved grievances in notices of strikes/lockouts handled by conciliator
or in the complaints filed before the Labor Arbiter, these unresolved grievances should
be referred to the Voluntary Arbitrators for appropriate action.

 What happens when a strike or lockout is declared under preventive mediation?

It has the same effect as assumption of jurisdiction by the Sec. of DOLE and the workers
must return to work or the employer must resume the normal working operation of the
company.

Strike or Lockout Vote

 What does it take for a declaration of strike to be approved?

It must be approved by the majority of the total union membership in the bargaining
unit concerned by secret ballot in meetings of referenda called for the purpose.

 What does it take for a declaration of lockout to be approved?

It must be approved by the majority of the board of directors of the employer
corporation or association or the partners in a partnership.

 What is the role of the Conciliator in a strike or lockout vote?

The Conciliator shall conduct a preconference before the secret balloting to thresh out
the mechanics and to impress that strike vote or improved offer balloting is not in the nature of
certification election wherein the usual legal procedures shall be applied.

 What happens after the strike or lockout vote?

The conciliation never stops. The Conciliator will act like a shuttle bus bridging the
demands of the parties. An improved offer is given to the union and reduced offer on the part
of the employer.
 When is an IMPROVED OFFER accepted? What happens when it is accepted?
In case of strike, a referendum shall be conducted by secret ballot on the improved offer
of the employer on or before the 30th day of the strike. It shall be accepted when at least a
majority of the union members vote to accept the improved offer. Thereafter, the striking
workers shall immediately return to work and the employer shall readmit them upon signing of
the agreement.

 When is a REDUCED OFFER accepted? What happens when it is accepted?

In case of lockout, a referendum shall be conducted on the reduced offer of the union
on or before the 30th day of the lockout. It shall be accepted when at least majority of the BOD
or trustees or the partners holding the controlling interest in the case of a partnership, vote to
accept the reduced offer. The workers shall immediately return to work and the employer shall
readmit them upon signing the agreement.

 What is the role of the Conciliator after the conclusion of the agreement ?
The Conciliator must monitor the implementation and compliance of the agreement to
ensure that the parties have normalized their relationship.

 If there exist an ACTUAL STRIKE or LOCKOUT, what must the Conciliator do?
The Conciliator shall verify whether or nor the requirements for valid strike/lockout
have been complied with.

 What are the REQUIREMENTS for a VALID STRIKE/LOCKOUT ?

1. The issues raised are valid grounds of notice of strike/lockout.
a. Deadlock in collective bargaining
b. Unfair labor practice (ULP)
c. Flagrant and/or malicious refusal to comply with the economic provisions of
the collective bargaining agreement
2. The cooling-off period was complied.
a. For ULP 15days
b. For Bargaining Deadlock 30days
3. The majority-strike/lockout vote was validly complied with and the results are reported
to the Regional Branch of the Board.

 What are the ESSENTIAL requirements for VALID STRIKE?

1. Must be based on valid grounds
2. A notice of strike file with the DOLE 30days before the intended date thereof for
bargaining deadlock or 15days for ULP.
3. Strike vote approved by a majority of the total union membership. (Pinero v National
Labor Relations)
4. A notice of the intended strike or lockout vote be submitted within 24hours to the
NCMB (National Conciliation and Mediation Board).
5. Notice of the results of the voting be given to DOLE at least 7 days before the intended
strike. (Capitol Medical Center v NLRC)
 6. Observance of 7-day strike ban. (SamahangManggagawasaSulpicio Lines, Inc., v Sulpicio
Lines, Inc.)

 Are the above-mentioned requirements for valid strike mandatory?

Yes. Failure of a union to comply with the requirements shall render the strike illegal.

 What is Picketing?
It is the right of the workers to peacefully march to and fro before an establishment
involved in a labor dispute generally accompanied by the carrying and display of signs, placards
and banners intended to inform the public about the dispute.

 Is there a need to observe the mandatory legal requirements for the conduct of strike
in the conduct of picketing?
In the case of Sta. Rosa Coca Cola Plant employees Union v Coca Cola Bottles Phils., the
SC held that since the petitioner union did not intend to go on strike, the protesting workers
were merely marching to and fro at the side of the highway not blocking the ingress and egress
of the company and after, they went back to work, there was no need to observe the
mandatory legal requirements for the conduct of strike.

 Is picketing a valid exercise of the constitutional right of freedom of expression?

Yes. However, the right is not an absolute one, one of its limitations is the crime of LIBEL
under Art. 365 of RPC.

 What are some of the restrictions in the exercise of peaceful picketing?

The Court believes that the courts are not without power to confine or localize the
sphere of communication or demonstration to the parties of the labor dispute, including those
with related interest, and to insulate (protect) establishments or persons with no industrial
connection or having interest totally foreign to the context of the dispute.
Thus, the right of peaceful picketing may be regulated at the instance of third parties or
“innocent bystanders” if it appears that the inevitable result will create an impression that a
labor dispute with which they have no connection exists between them (innocent bystanders)
and the picketing union, or it shall constitute an invasion of their right. This is referred to as
Innocent Third Party Rule.

 What are the prohibited activities in picketing?

Article 279e of LC provides that no person engaged in picketing shall:
1. Commit any violence, coercion or intimidation
2. Obstruct the free ingress to or egress from the employer’s premises for lawful
purposes, or
3. Obstruct public thoroughfares.

 Provide acts that have been held to be prohibited activities:

 1. Where the strikers shouted slanderous and scurrilous words against the owners of the
vessels
2. Where the workers used unnecessary and obscene language or epithets to prevent
other laborers to go to work, and circulated libelous statements against the employer
which show actual malice
3. Where the protestors used abusive and threatening language, going beyond the mere
attempt to persuade customers to withdraw their patronage
4. Where the strikers formed a human cordon and blocked all the ways and approaches…
5. Where the strikers shook their fists and threatened non-striking employees with bodily
harm if they persisted to proceed to the workplace.

 What happens if an ordinary striking worker was involved in an illegal strike?

He/she cannot be terminated fore mere participation. There must be a proof that he
committed illegal acts during a strike.

 What happens if a Union Officer was involved in an illegal strike?

He/she may be terminated from work when he knowingly participates in an illegal
strike, and when he commits illegal strike.

 Are strikes staged in violation of agreements providing for arbitration illegal?

Yes, since these agreements must be strictly adhered to and respected if their ends are
to be achieved.

 What is a slowdown?
As defined by the jurisprudence, it is a “strike on the installment plan”, as a willful
reduction in the rate of work by concerted action of workers for the purpose of restricting the
output of the employer, in relation to the labor dispute. Without complete stoppage of work,
the employees retard production or their performance of duties and functions to compel
management to grant their demands.

 What is the impression of the Court with regard to slowdown?

The Court agrees that such a slowdown is generally condemned as inherently illicit and
unjustifiable.

It has been held that while cessation of work by the concerted action of a large number
of employees may more easily accomplish the object of the work stoppage than if it is by one
person, there is, in fact NO FUNDAMENTAL DIFFERENCE in the principle involved as far as the
number of person involved is concerned, and thus, if the act is the same, and the purpose to be
accomplished is the same, there is a strike, whether one or more than one have ceased to
work.

 What is a Lockout?
It means any temporary refusal of an employer to furnish work as a result of an
industrial or labor dispute. (Art. 219p of LC)
 When is a decision to declare lockout approved?
Article 278(f) of LC provides that a decision to declare lockout is approved when the
majority of the BOD of the Corporation or association or of the partners in a partnership do so.

 When may the principle of in pare delicto be applied?

It shall apply when, for example, the union staged an illegal strike and the employer also
committed an illegal lockout. However, this ruling should not be used as a common standard.

 What is the effect when the principle of in pare delicto is applied?

When both parties are in pare delicto, such situation warrants the restoration of the
status quo ante and brining the parties back to the respective positions before the illegal strike
and illegal lockout. Nonetheless, if reinstatement is no longer feasible, separation pay shall be
given. (Automotive engine rebuilders v ProgresibongUnyon ng Manggagawasa AER)

 Is a “No Strike Clause” valid?

Yes. The parties can stipulate any term in the CBA provided it is not contrary to law,
moral and good customs.

 When can a “No Strike”/ “No Lockout” provisions be invoked?

It can only be invoked when the strike is economic in nature. Example, to force wage
from the employer which he is not required by law to grant.

 What are the effects of an illegal strike?

An ordinary striking worker or union member cannot be terminated fore mere
participation. There must be a proof that he committed illegal acts during a strike.
A union officer may be terminated from work when he knowingly participates in an illegal
strike, and when he commits illegal strike.

 Can the employer terminate the union officer right away ?

No. the employer cannot terminate the union officer right away because the union
staged an illegal strike. the employer must first file a petition before the Labor Arbiter to
declare the strike illegal and pray for the dismissal of the union officers.

 Will a defiance of the “return to work order” cause the strike to be illegal?
Yes. A strike undertaken despite the Secretary’s issuance of an assumption or
certification order becomes prohibited activity, and thus, illegal, under Art. 279 (a) of LC.

 Does the principle of Fair day’s wage for a fair day’s work apply to striking workers?
As a General Rule, Backwages shall not be awarded in an economic strike.
Even in ULP strike, award of backwages rests on the court’s discretion.
 Exceptions:
1. When the employees were illegally locked to thus compel the them to state a strike.
2. When the employer is guilty of the grossest form of ULP
3. When the employer committed discrimination in the rehiring of strikers refusing to
readmit those against whom there were pending criminal cases while admitting non-
strikers who were also criminally charged in court
4. When the workers who staged a voluntary ULP strike offered to return to work
unconditionally but the employer refused to reinstate them.

 What is a strike-breaker? Is an employer allowed to use such method?

A strike breaker according to Art 219 (r) of LC means any person who obstructs,
impedes, or interferes with by force, violence, coercion, threats, or intimidation any peaceful
picketing affecting wages, hours or conditions of work or in the exercise of the right of self-
organization or collective bargaining.
Art. 279 (c) provides that No employer shall use or employ any strike breaker, nor shall
any person be employed as a strike breaker.

 What is a Runaway Shop?

A runaway shop is an industrial plant moved by its owners from one location to another
to ESCAPE union labor regulations or state laws. The term is also used to describe a plant
removed to a new location in order to discriminate against employees at the old plant because
of their union activities.
For anti-union purposes.

LABOR INJUNCTION

 What is the Principle of “Limited Labor Injunction”?

This is an important principle in strike. It ensures that a labor dispute will be resolved at
the earliest possible opportunity without resorting to dilatory tactics by enjoining the union or
the employer.

 What is a Labor Dispute?

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. (Art 219 of LC)

 What is the effect of Injunction?

 It does not resolve the merits of the case but merely suspends the exercise of the right
because of an alleged act which if not prevented would cause irreparable damage or injury.

 Why is called “limited” Labor Injunction?

It is considered as limited because there are only two instances when injunction may be
issued. (according to the Labor Code Provision Art. 266)

 Explain more about the Limited Labor Injunction Rule

As a General Rule: Notemporary 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 225(e) and 278(g) of this Code. [DISCLAIMER: pls research about the
exempted articles because what is written in the book are Art. 224(e) and 270 however when you
read these articles it does not talk about injunction]

Exemptions (based on LC and Jurisprudence):

1. Injunction issued by the NLRC

There are two kinds of injunction issued by the NLRC:
a. Injunction in the exercise of its original and exclusive jurisdiction under Art.
225(e)
b. Injunction issued after the Secretary of Labor issues an order placing the
labor dispute under compulsory arbitration under Art. 278(g).

2. Assumption of jurisdiction by the Secretary of Labor -- Art. 278 (g)

The SC rationated that it is an expression of the police power of the state.

3. Assumption of Jurisdiction by the office of the President

Has the same effect with the assumption of jurisdiction by the Secretary of
Labor.
4. Preventive Mediation by the National Conciliation and Mediation Board (NCBM)

NCMB may place the labor dispute under preventive mediation case before the
cooling-off period expires or before the union conducts its strike balloting.

5. Application of the “Innocent Third Party” Rule

A company which is not a party to the labor dispute may go to court and ask for
injunction relief if the striking employees do no allow the passage of its employees
during the strike.

 When is there a Compulsory Arbitration in Labor Disputes?

 Labor Disputes that entail immediate response from the government to avoid further
escalation to the detriment of the economy, like labor disputes involving an industry
indispensable to national interest, the SOLE (office of the Secretary of Employment) or the Office
of the President will assume jurisdiction and place the dispute under compulsory arbitration.

 What are the three compulsory arbitration agencies gleaned upon in Art. 278(g)?

1. Office of the Secretary of Labor (SOLE)

- Can assume jurisdiction over a labor dispute involving a company or industry
considered indispensable to national interest.
- DO 40-11-13, Section 16 provides,
(for the guidance of the filing of Petition for Assumption of Jurisdiction)
Industries indispensable to the National Interest:
a. Hospital Sector
b. Electric Power Industry
c. Water Supply Services, exclude small water supply services such as
bottling and refilling stations
d. Air Traffic Control
e. Such other industries as may be recommended by NTIPC.

- Sec. 22 of RA 8791 also provides that Banking Industry is also an indispensable

industry to the national interest. Any strike or lockout left unresolved after 7 days
shall be reported by the BSP to the SOLE who may assume jurisdiction for
compulsory arbitration.

- The ff may also be considered indispensable industries to the national interst:

a. Transportation
b. Telecommunications
c. BPO
d. Hotels
e. Food and beverages
f. Food chains
g. Mining
h. Supermarkets, etc

- the best way to convince the Sec. of Labor that the industry is indispensable is the
showing of proof of payment of significant amount of taxes to the BIR and the
number of employees employed.

2. Office of the President

3. National Labor Relations Commissions

 Only if the Secretary of Labor issues a certification to the Commission for
compulsory arbitration

JURISDICTION AND REMEDIES

REMEDIES THROUGH SECRETARY OF LABOR

Secretary of DOLE

1. Under Article 128 of the Labor Code, the visitorial and enforcement powers of the Secretary of
Labor includes the following:

(a) power to inspect employer’s records and premises at any time of the day or night
whenever work is being undertaken therein, and the right to copy therefrom, to
question any employee and investigate any fact, condition, or matter which may be
necessary to determine the violations or which may aid in the enforcement of the Labor
Code and of any labor law, wage order, or Rules and regulations issued pursuant
thereto;
(b) power to issue compliance orders to give effect to the labor standards provisions of this
Code, and other labor legislation based on the findings of labor employment and
enforcement officers or industrial safety engineers made in the course of inspection;
(c) power to issue writs of execution to the appropriate authority for the enforcement of
their orders, except in cases where the employer contests the findings of the labor
employment and enforcement officer and raise issues supported by documentary
proofs which were not considered in the course of inspection; and,
(d) power to order stoppage of work or suspension of operations of any unit or department
of an establishment when non-compliance with the law or implementing Rules and
regulations poses grave and imminent danger to the health and safety of workers in the
workplace.

2. What is enforcement power? Enforcement power is the power of the Labor Secretary to
compel the employer to comply with labor standards upon finding of violations discovered in
the course of the exercise of the visitorial power. Labor Code Article 128 as amended by RA No.
7730

3. Is the visitorial and enforcement power includes recruitment and placement of workers for
both local and overseas employment? Yes, the SOLE or his duly authorized representative is
 likewise empowered under Article 37 of the Labor Code, in the exercise of its visitorial power in
relation to recruitment and placement of workers for both local and overseas employment, to
inspect the premises, books of accounts, and records of any person or entity covered by Title I,
require them to submit reports, regularly on prescribed forms, and act on violations of any of
the provision of Title I.

4. Can the SOLE use his visitorial and enforcement powers against labor organizations? Yes,
under Article 289 of the Labor Code, the SOLE or his duly authorized representatives, upon the
filing of a complaint under oath and duly supported by the written consent of at least 20% of the
total membership of legitimate labor organizations, is empowered in the exercise of its visitorial
power to: (a) prosecute violations of law and the union constitution and by-laws; (b) inquire into
the financial activities of legitimate labor organizations; and, (c) examine their books of accounts
and other records to determine compliance and non-compliance with the law.

5. Can the Labor Secretary determine the existence of an employer-employee relationship in the
exercise of the powers under Article 128? Yes, as ruled in People’s Broadcasting Service vs.
Secretary of DOLE, G.R. No. 179652, March 6, 2012, the DOLE must have the power to
determine whether or not an employer-employee relationship exists, and from there to decide
whether or not to issue compliance. The determination of the existence of the employer-
employee relationship by the DOLE must be respected. The expanded visitorial and enforcement
powers of the DOLE granted by RA 7730 would be rendered nugatory if the alleged employer
could, by the simple expedient of disputing the employer-employee relationship, force the
referral of the matter to the NLRC.

6. In reinstatement, can the Secretary of Labor provisionally order a reinstatement? Yes, inthe
event of prima facie finding that the dismissal may cause serious labor dispute as in a strike or
lockout, or is in implementation of mass lay-off. Article 292(b) of the Labor Code.

7. Does the SOLE have voluntary arbitration powers? Yes, either or both the employer and the
certified collective bargaining agent (or the representative of the employees where there is no
certified bargaining agent) may voluntarily bring to the SOLE, through a request for intervention,
any potential or ongoing dispute. Such dispute is a live and active dispute that may lead to a
strike or lockout or to massive labor unrest; and, is not the subject of any complaint or notice of
strike or lockout at the time a request for intervention is made. DOLE Circular No. 1 Series of
2006.

8. What are the requirements for administrative intervention by the DOLE Secretary? The
prerequisites for intervention by the Secretary of Labor are:
(a) They voluntarily submit their potential or ongoing dispute to intervention by the Office
of the Secretary of Labor and Employment;
(b) There is no pending notice of strike or lockout or any related complaint in relation with
their potential or ongoing dispute;
 (c) they shall refrain from any strike or lockout or any form of work stoppage or from filing
any related complaint while the Secretary’s intervention is effect; and
(d) they shall abide by the agreement reached, whose terms may be enforced through the
appropriate writs issued by the Secretary of Labor and Employment.
9. Is voluntarily arbitration limited in scope? Yes, voluntary arbitration shall be limited to the
issues defined in the parties’ submission to voluntary arbitration agreement and shall be
decided on the basis of the parties’ position papers and submitted evidence. DOLE Circular No. 1
Series of 2006 (4)

10. Does the SOLE have appellate jurisdiction? Yes, the DOLE Secretary has appellate jurisdiction of
the following cases:
(a) Orders issued by the duly authorized representative of the Secretary of Labor and
Employment in the exercise of its visitorial and enforcement power, Labor Code Article
128 (b);
(b) Denial of application for union registration or cancellation of union registration originally
rendered by the Bureau of Labor Relations (BLR), however, if cancellation or denial of
union registration is made by the Regional Office, it should be appealled to BLR;
(c) Decision of the Mediation Arbiter in certification election cases (Article 272, Labor Code)
except for intra-union disputes which should be appealed to the BLR;
(d) Occupational and Safety and Health standards violations (Article 128, Labor Code);
(e) Decisions of the POEA Arbitration branch on recruitment violations and other related
cases, and disciplinary action cases and other special cases (2016 POEA Rules and
Regulations, Rule IX, Section 169);
(f) Denial of the application for the issuance of license, authority to recruit and authority to
operate branch office issued by the Regional Director for recruitment and placement for
local employment (DOLE D.O. 141-14, Section 32);
(g) Orders involving suspension or cancellation of license of recruitment agencies for local
employment (DOLE D.O. 141-14, Section 26).

REMEDIES BY MEDIATION

Single Entry Approach (SEnA)

11. What is a Single Entry Approach (SEnA)?SEnA is an administrative approach to provide an

accessible, speedy, impartial, and inexpensive settlement procedure of all issues arising from
labor and employment through a 30-day mandatory conciliation-mediation. SEnA IRR Rule I,
Section 4 (k)

12. What issues or cases are covered by SEnA?SEnA covers all issues arising from labor and
employment for a 30-day mandatory conciliation-mediation, except the following:
(a) Notice of strike or lockout or preventive mediation cases with the NCMB;
 (b) Issues arising from the interpretation and implementation of the Collective Bargaining
Agreement, and those arising from the interpretation and enforcement of company
personnel policies which should be processed through grievance machinery;
(c) Application for exemption from wage orders with the National Wages and Productivity
Commission (NWPC);
(d) Issues involving violation of:
(1) Alien employment permit;
(2) Private Employment Agency authority or licensed;
(3) Working Child Permit and violations of R.A. No. 9231 (Anti-Child Labor Law);
(4) Registration under D.O. 18-A s. 2011 (now D.O. No. 174-17);
(5) Professional License issued by Professional Regulatory Commission and the
Professional Code of Conduct;
(6) TESDA Accreditations;
(7) Other similar permits, license or registrations issued by the DOLE or its attached
agencies;
(e) Violations of POEA Rules and Regulations involving:
(1) Serious offenses and offenses penalized with cancellation of license;
(2) Disciplinary actions against overseas workers or seafarers which are considered
serious offenses or which carry the penalty of delisting from the POEA Registry
at first offense;
(3) Complaints initiated by POEA;
(4) Complaints against an agency whose license is revoked, cancelled, expired, or
otherwise delisted; and,
(5) complaints categorized under the POEA Rules and Regulations;
(f) Issues on Occupational Safety and Health Standards involving imminent danger
situation, dangerous occurrences or disabling injury and absence of personal protective
equipment. (R.A No. 10396, Section 1; Labor Code Article 234; SEnA IRR Rule I Secc. 3)

13. To request for a SEnA, the party wishing to undergo may request for the conduct of conciliation-
mediation through the filing of a Request for Assistance, or RFA. SEnA IRR Rule II Section 1

14. RFA may be filed by any aggrieved person or party, such as: (a) Employer, (b) workers including
kasambahay whether local or overseas, (c) group of workers whether local or overseas, and (d)
union workers’ association or federation. Furthermore, in case of absence or incapacity of the
aggrieved person, his or her immediate family with Special Power of Attorney may file the RFA;
and, in case of death, his or her legitimate heir/s may file the RFA. SEnA IRR Rule II Section 1

15. RFA requested should be filed in Single Entry Assistance Desk (SEAD) in the region where the
employer principally operates, except on the following cases:
(a) In cases of separated kasambahay or deployed workers or service providers or
subcontractor operating in the region other than where it principally operates, the RFA
should be filed at the nearest DOLE Regional Office or attached agency;
 (b) In case of OFWs, at the nearest Philippine Overseas Labor Office (POLO) in the country
of destination or disembarkation, or at the nearest DOLE office or attached agency of
preference when in the country; and,
(c) At the DOLE office of registration in case of a union or federation representing a local
chapter.SEnA IRR Rule II Section 2

16. Are lawyers of the parties required to appear during SEnA? No, SEnA being an administrative
approach for a conciliated settlement and not a litigation, the parties shall represent themselves
and lawyers discouraged from participating in the conference, except when they are the
requesting party. SEnA IRR Rule IV Section 1

17. SEnA IRR Rule IV Section 2 has likewise provides that lawyers, agents, or attorneys-in-fact
appearing in behalf of any of the parties should submit a SPA or Board Resolution or Secretary’s
Certificate granting them the authority to represent into binding agreement for their principal in
the following circumstances:
(a) When the requesting or responding party is already deployed abroad or out of the
country or employed, assigned, or migrated to another region;
(b) When the requesting or responding party is a minor or physically incapacitated; and/or,
(c) If the requesting or responding party died during the pendency of the RFA, the heir/s of
the deceased may appear and shall present: (1) death certificate; and, (2) proof of
relationship such as marriage contract or birth certificate.

National Conciliation and Mediation Board (NCMB)

18. What is the National Conciliation and Mediation Board (NCMB)? The National Conciliation and
Mediation Board is an arm of the Department of Labor and Employment which is concerned
with mediation and conciliation of labor disputes.

19. The functions of NCMB, according to E.O No. 126 Section 22, amended by E.O. No. 251, Section
4, are to:
(a) Formulate policies, programs, standards, procedures, manuals of operations and
guidelines pertaining to effective mediation and conciliation of labor disputes;
(b) perform preventive mediation and conciliation functions;
(c) coordinate and maintain linkages with other sectors or institutions, and other
government authorities concerned with matters relative to the prevention and
settlement of labor disputes;
(d) formulate policies, plans, programs, standards, procedures, manuals of operation and
guidelines pertaining to the promotion of cooperative and non-adversarial schemes,
grievance handling, voluntary arbitration, and other voluntary modes of dispute
settlement;
 (e) administer the voluntary arbitration program, maintain or update list a list of voluntary
arbitrations; compile arbitration awards and decisions;
(f) provide counseling and preventive mediation assistance particularly in the
administration of collective agreements;
(g) monitor and exercise technical supervision over the Board programs being implemented
in the regional offices; and,
(h) perform such other functions as may be provided by law or assigned by the Secretary;

20. Conciliation is a process where a disinterested third party meets with the management and
labor, at their request or otherwise, during a labor dispute or in collective bargaining
conferences.

21. Mediation is the process wherein a third party studies each side of the dispute then makes
proposals for the disputants to consider.

22. In conciliation, the conciliator takes an active role in assisting the parties by trying to keep
disputants talking, facilitating other procedural niceties, carrying messages back and forth
between the parties; meanwhile, in mediation, the mediator advises the parties or offers
solutions to the problems with an end in view of assisting them towards voluntarily reaching
their own mutually acceptable settlement of dispute.

23. What is covered by preventive mediation? Preventive mediation covers potential labor cases
which are the subject of formal or informal requests for conciliation and mediation assistance
sought by either or both parties or upon the initiative of NCMB to avoid the occurrence of actual
labor disputes. The issues may either be strikeable or non-strikeable. NCMB Manual of
Procedures for Conciliation and Preventive Mediation, Rule III, Section 1(20).

24. In preventive mediation, who has the authority to convert a notice of strike or lockout into a
preventive mediation case?Sections 2 and 3 Rule VI of the Manual of Procedures for Conciliation
and Preventive Mediation, provides that the conciliator (if strikeable) or the conciliator thru the
Director II (if non-strikeable) hsa the authority to convert a notice of strike or lockout into a
preventive mediation case under any of the following cases:
(a) When the issues in the notice of strike or lockout are non-strikeable;
(b) When the party which filed the notice of strike or lockout voluntarily asks for the
conversion; or,
(c) When both parties to a labor dispute mutually agree to have it subjected to preventive
mediation proceeding.
 Voluntary Arbitrator

25. The voluntary arbitrator or panel of voluntary arbitrators shall have original and exclusive
jurisdiction on the following cases:
(a) All grievances arising from the implementation or interpretation of the collective
bargaining agreements;
(b) Interpretation or enforcement of company personnel policies which remain unresolved
after exhaustion of the grievance procedure;
(c) To hear and decide wage distortion issues arising from the application of any wage
orders in organized establishments;
(d) Unresolved grievances arising from the interpretation and implementation of the
productivity incentive programs under R.A. No. 6971, (NCMB Revised Procedural
Guidelines, Rule IV Section 1);
(e) Violations of CBA which are not gross in nature (Article 274 of the Labor Code);
(f) Other labor disputes, including unfair labor practices and bargaining deadlocks, upon
agreement of the parties (Article 275 of the Labor Code); and
(g) National interest cases (Article 278[i] of the Labor Code).

26. What “all other disputes” includes? “All other disputes” under Article 274 of the Labor Code
may include termination disputes, provided that the agreement between the parties states in
unequivocal language that they conform to the submission of termination disputes and ULP to
voluntary arbitration. This is so because termination disputes are generally within the exclusive
and original jurisdiction of the Labor Arbiters by express provision of law (Viviero vs. Court of
Appeals, G.R. No. 138938, October 24, 2000). The disputes the parties may submit to a voluntary
arbitrator may include any or all the disputes mentioned in Article 224 of the Labor Code which
otherwise falls under the exclusive jurisdiction of a Labor Arbiter.

27. Decisions or awards of the voluntary arbitrator, or a panel thereof, may be appealed through
the following modes:
(a) Petition for Review under Rule 43 of the Rules of Court. The general rule is that the
proper remedy is a petition for review under Rule 43 of the Rules of Court to the Court
of Appeals (Leyte IV Electric Cooperative Inc., vs. LEYECO IV Employees Union-ALU, G.R.
No. 157775, October 19, 2007); or,
(b) Petition for Certiorari under Rule 65 of the Rules of Court. The extraordinary remedy for
certiorari under Rule 65 of the Rules of Court may be resorted to despite the availability
of an appeal in the following significant exceptions: (1) When public welfare and the
advancement of public policy dictates; (2) when the broader interests of justice so
requires; (3) when the writs issued are null; or, (4) when the question order amounts to
an oppressive exercise of judicial authority (Leyte IV Electric Cooperative Inc., vs. LEYECO
IV Employees Union-ALU, G.R. No. 157775, October 19, 2007).

28. May a motion for reconsideration allowed? Yes. While it is true that Article 275 (now Article
276) makes voluntary arbitration award final and executory after 10 days from the receipt of the
 copy of thereof by the parties, a motion for reconsideration may still be resorted to within the
10-day period following the doctrine of exhaustion of administrative remedies. (Teng vs.
Pahagac, G.R. No. 169704, November 17, 2010).

29. What is the rule when an award becomes final and executory?Article 276 of the Labor Code
provides that upon motion of any interested party, the voluntary arbitrator, the panel thereof,
or the Labor Arbiter in the region where the movant resides in the case of the absence or
incapacity of the voluntary arbitrators or panel thereof, for any reason may issue a writ of
execution requiring either the sheriff of the NLRC or regular court or any public official whom
the parties may designate in the submission of the agreement to execute the final decision,
order, or award.

30. Is Article 276 absolute? No. In Jane Abalos vs. Philex Mining Corporation, G.R. No. 140374,
November 27, 2002, a x xxwrit of execution may be refused on equitable grounds as when there
was a change in the situation of the parties that would make execution inequitable or when
certain circumstances which transpire after the judgment became final, rendered execution of
judgment unjust. x xx

31. What is the remedy of an interested party after the judgment became final and executory? In
Cruz vs. Leabres, G.R. No. 99846, May 22, 1995, that x xxit is well settled that when after a
judgment has become final and executory, and the facts and circumstances transpire which
render its execution impossible or unjust, the interested party may ask a competent court to
stay its execution or to prevent its enforcement.

REMEDIES BY ADJUDICATION

DOLE Regional Directors

32. What powers the DOLE Regional Director has?Article 129 of the Labor Code has provided that
upon complaint of any interested party, the DOLE Regional Director, or any of the duly
authorized hearing officer of the Department, is empowered, through summary proceeding and
after due notice, to hear and decide cases involving recovery of wages and other monetary
claims and benefits, including legal interested provided the following requisites are present:
(a) The claim is presented by an employee or person employed in domestic or household
service or househelper;
(b) The claim arises from employer-employee relationship;
(c) The aggregate money claim of each employee or househelper does not exceed Php
5,000.00; and,
(d) The claim does not seek for reinstatement.
 The Labor Arbiter

33. Rule V Section 1 of the 2011 NLRC Rules of Procedure has provided that x xxthe Labor Arbiter
shall have original and exclusive jurisdiction to hear and decide the following cases involving all
workers, whether agricultural or non-agricultural. x xx

34. Jurisdiction of the Labor Arbiter includes the following:

(a) Unfair Labor Practices Cases;
(b) Termination Disputes;
(c) If accompanied with a claim for Reinstatement, those cases that workers may file
involving wages, rates of pay, hours of work, and other terms and conditions of
employment;
(d) claims for actual, moral, exemplary, and other forms of damages arising from employer-
employee relationships;
(e) cases arising from violations of Article 270, including questions involving the legality of
strikes and lockouts;
(f) except claims for Employment Compensation, Social Security, PhilHealth, and maternity
benefits, all other claims arising from employer-employee relations including those of
persons in domestic or household service, involving an amount exceeding Php 5,000.00
regardless of whether accompanied with a claim for reinstatement;
(g) monetary claims of overseas contract workers arising from employer-employee
relations as provided by Section 10, RA 8042 as amended by RA 10022;
(h) Wage distortion disputes in unorganized establishments not voluntarily settled by the
parties pursuant to RA 6727;
(i) enforcement of compromise agreements when there is non-compliance by any of the
parties pursuant to Article 233 (non-compliance, or if settlement is obtained through
fraud, misrepresentation, or coercion) of the Labor Code, as amended; and,
(j) other cases as may be provided by law.

35. Rule V Section 1 of the 2011 NLRC Rules of Procedure has provided that x xxthe Labor Arbiter
shall have original and exclusive jurisdiction to hear and decide the following cases involving all
workers, whether agricultural or non-agricultural. x xx

36. The Labor Arbiter shall have no jurisdiction if the action precedes from a different source of
obligation, as Halaguena v. PAL, G.R. No. 172013, October 2, 2009, the Supreme Court has
provided that x xx Not every controversy or money claim by an employee against the employer
or vice-versa is within the jurisdiction of the labor arbiter. Actions between employees and
employers where the employer-employee relationship is merely incidental and the cause of
action proceeds from a different source of obligation is within the exclusive jurisdiction of the
regular court. x xx

37. In PNB v. Cabansag, G.R. No. 157010, June 21, 2005, the Supreme Court has ruled that in
monetary claims of overseas contract workers, it is required that x xx in order for the Labor
 Arbiter to assume jurisdiction over the monetary claim, the OFW must have a certification from
POEA. x xx

38. An unorganized establishment is one where no union has yet been duly recognized or certified
as a bargaining representative.

39. “Original and exclusive jurisdiction” does not per se excludes other forms of settlement, as
Article 275 of the Labor Code provided that x xx the voluntary arbitrators or panel of voluntary
arbitrators, upon agreement of the parties, shall also hear and decide all other labor disputes,
including unfair labor practices and bargaining deadlocks.

40. The above mode is allowed in Section 3, Article XIII of the Constitution that x xx the State shall
promote the preferential use of voluntary modes in settling disputes, including conciliation, and
shall enforce mutual compliance therewith to foster industrial peace. x xx

41. What are the cases that must be referred to the grievance machinery and voluntary
arbitration? These cases are: (a) Disputes on the interpretation or implementation of the
Collective Bargaining Agreement; and, (b) disputes on the interpretation or enforcement of
company personnel policies. (Section 1, Rule V, 2011 NLRC Rules of Procedure)

42. How to appeal to NLRC? The appeal to NLRC may be entertained only on any of the following
grounds: (1) If the decision, award, or order was secured through fraud, coercion, including graft
and corruption; (2) if there is a prima facie evidence of abuse of discretion on the part of the
Labor Arbiter or the Regional Director; (3) If made purely on questions of law; and/or, (4) if
serious errors in the findings of facts are raised which, if not corrected, would cause grave or
irreparable damage or injury to the appellant. Section 2, Rule VI, 2011 NLRC Rules of Procedure).

43. What are the requirements to perfect an appeal to the NLRC? To perfect an appeal, the
following requirements must be had:
(a) Appeal must be filed within the reglementary period, which is within 10 calendar days
from receipt of the notice of decision or order; and, in case of decision or resolutions of
the DOLE Regional Director pursuant to Article 129 of the Labor Code, within 5 calendar
days from receipt thereof. if the 10th or the 5th day, as the case may be, falls on a
Saturday, Sunday, or a holiday, the last day to perfect the appeal shall be the first
working day following such Saturday, Sunday or holiday (Section 1, Rule VI, 2011 NLRC
Rules of Procedure)
(b) It must be verified by the appellant himself in accordance with Section 4, Rule 7 of the
Rules of Court, as amended;
(c) The appeal shall be in the form of a memorandum of appeal which shall state the
grounds relied upon and the arguments in support thereof, the relief prayed for, and
 with a statement of the date the appellant received the appealed decision, award or
order;
(d) It must be in 3 legibly typewritten or printed copies; and,
(e) Accompanied by: (a) proof of payment of the required appeal fee and legal research fee;
(b) posting of a cash or surety bond in case the decision of the Labor Arbiter or Regional
Director involves a monetary award as provided in Section 6 Rule VI of the 2011 NLRC
Rules of Procedure; and, (c) proof of service upon the other parties. Section 4, Rule VI,
2011 NLRC Rules of Procedure.

44. In the required appeal bond, can the appellant seek the reduction thereof? The appeal bond
may be reduced upon x xx the same may be granted only upon meritorious grounds, and only
upon the posting of a bond in a reasonable amount in relation to the monetary award. The
motion must be accompanied by 10% of the amount of the judgment award. x xxMcBurnie vs.
Ganzon, G.R. Nos. 178034 and 178117, October 17, 2013

1. What is the effect of an appeal to the order of reinstatement by the Labor Arbiter? The
Supreme Court in Baronda vs. CA, G.R. No. 161006, October 14, 2015 held that x xx in any event,
the decision of the Labor Arbiter reinstating a dismissed or separated employee, in so far as the
reinstatement aspect is concerned, shall be immediately be executory, even pending appeal.
The employee shall either be admitted back to work under the same terms and conditions
prevailing prior to his dismissal or separation, or at the option of the employer, merely
reinstated in the payroll. The posting of a bond by the employer shall not stay the execution for
reinstatement provided herein. x xx

2. If the employer refuses to reinstate the dismissed employee, what is the latte’s remedy?
Section 9 Rule XI of the 2011 NLRC Rules of Procedure provides that x xx The Labor Arbiter shall
immediately issue a writ of execution, even pending appeal, directing the employer to
immediately reinstate the dismissed employee either physical or in the payroll, and to pay the
accrued salaries as consequence of such reinstatement at the rate specified in the decision. x xx

The National Labor Relations Commission (NLRC)

3. What cases falls under the original jurisdiction of the National Labor Relations Commission?
Section 3, Rule XII of the 2011 NLRC Rules of Procedure includes the following cases that are
within the original jurisdiction of the NLRC: (a) Cases certified to the NLRC for compulsory
arbitration by the Secretary of Labor under Articles 277 and 278 of the Labor Code; (b)
injunction cases under Articles 225 and 278 of the Labor Code; (c) contempt cases under Articles
225 of the Labor Code; and, (d) Verified Petition.
4. What cases which falls under the appellate jurisdiction of the NLRC? The appellate jurisdiction
of the NLRC includes the following cases: (a) cases decided by the Regional Offices of the DOLE
in the exercise of their adjudicatory functions under Article 129 over monetary claims of workers
not exceeding Php 5,000.00; (b) cases decided by the Labor Arbiters under Article 224 (b) of the
Labor Code and Section 10 of the Migrant Workers Act; (c) cases decided by the Labor Arbiters
pursuant to Article 124 of the Labor Code on wage distortion problem in non-unionized
establishment and cases certified by the Regional Director under Article 128(b); and, denial of
the claim of the 3rd party where property was levied by the Sheriff of Labor Arbiter can be
appealed to the NLRC (as held in Yupangco Cotton Mills vs. Mendoza, G.R. No. 139912, March 3,
2005).

5. In cases of reinstatement which was reversed by NLRC, what is the effect thereof? In Garcia vs.
PAL, G.R. No. 164856, January 20, 2009, x xx If the Labor Arbiter ordered the reinstatement of
an employee and the employer opted to reinstate him in the payroll, such employee is not
obliged to refund the amount of salary received during the time he is reinstated in the payroll,
should the NLRC reverse said order of reinstatement on appeal. x xxThe rationale of this Rule is
that the employee cannot be faulted for the decision of the employer to merely reinstate him in
the payroll.

6. Can an employee still recover or collect his accrued or uncollected wages suppose there was
delay in the execution or implementation of the reinstatement pending appeal and the
decision of the Labor Arbiter reinstating the employee to his former or an equivalent position
is reversed by the NLRC? In the same Garcia vs. PAL, x xx after the Labor Arbiter’s decision is
reversed by a higher tribunal, the employee may be barred from collecting the accrued wages, if
it is shown that the delay in enforcing the reinstatement pending appeal was without fault on
the part of the employer - that is: (1) there must be actual delay; and, (2) the delay must not be
due to the employer’s unjustified act or omission - otherwise, the employer may still be required
to pay the salaries notwithstanding the reversal of the Labor Arbiter’s decision. x xx Therefore,
the employee may still recover.

7. What is the remedy from an adverse decision of NLRC? In St. Martin Funeral Home vs. NLRC,
G.R. No. 130866, September 16, 1998, x xx the remedy from an adverse decision of NLRC is
through the special civil action of certiorari under Rule 65, to the Court of Appeals. x xx Thus, the
Rules of Civil Procedure, as amended should be observed.

Court of Appeals (CA)

8. When is a petition for certiorari under Rule 65 available in cases decided by voluntary
arbitrators? A petition for certiorari under Rule 65 of the Rules of Court will lie only when a
grave abuse of discretion or an act without or in excess of jurisdiction of the voluntary arbitrator
is shown, which may be filed with the Court of Appeals. As held in St. Martin vs. Court of
 Appeals x xx the way to review NLRC decisions is through the special civil action of certiorari
under Rule 65. The jurisdiction over such action belongs to both the Court of Appeals and the
Supreme Court; and, following the doctrine of hierarchy of courts, the petition should be initially
presented to the CA.

9. What are the requirements to perfect an appeal to the Court of Appeals under Rule 65? Under
the Rules of Civil Procedure, the (a) petition for certiorari must be filed not later than 60 days
from notice of the judgment, order, or resolution. If a motion for new trial or reconsideration is
timely filed, whether it is required or not, the 60-day period shall be counted from the denial of
such motion; (b) should be accompanied by a certified true copy of the NLRC decision and a
sworn certification of non-forum shopping as well as copies of all relevant pleadings and
documents; and, (c) in observance of hierarchy of courts principle, the petition must be filed in
the first instance with the Court of Appeals.

10. Is motion for reconsideration required? In Diamonon vs. DOLE, G.R. No. 108951, March 7, 2000,
the Supreme Court have held that x xx the Rule on the filing of a Motion for Reconsideration of
the decision of the DOLE Secretary, NLRC, and the BLR Director is mandatory and jurisdictional.
The reason for the Rule is that, in labor cases, a motion for reconsideration is the plain, speedy,
and adequate remedy from an adverse decision. Hence, when an administrative remedy is
provided under the law, relief must be sought first by exhausting such remedy before resort to
judicial intervention may be had. x xx

Supreme Court (SC)

11. Whatis the proper remedy to appeal a Court of Appeals’ final order or resolution? The appeal
from a final disposition of the Court of Appeals is a petition for review under Rule 45 and not a
special civil action under Rule 65 of the Rules of Court, now Rule 45 and Rule 65, respectively, of
the Rules of Civil Procedure, as amended.

12. Rule 45 is clear that the decisions, final orders, or resolutions of the Court of Appeals in any
case, i.e., regardless of the nature of the action or proceeding involved, may be appealed to this
Court by filing a petition for review, which would be but a continuation of the appellate over
process over the original case. Under Rule 45, the reglementary period is 15 days from receipt of
the notice of judgment or denial of motion for reconsideration.

Bureau of Labor Relations (BLR)

13. What is Bureau of Labor Relations? BLR is an agency under the Department of Labor and
Employment which deals issues on labor relations.

14. The jurisdiction of the Labor Relations, under Section 5 Rule XI of DOLE D.O. No. 40-03, includes
cases involving federations, national unions, industry unions, its officers, or member
 organizations: (a) intra-union conflicts; (b) inter-union conflicts; and, (c) other related labor
relations disputes.

15. There is an inter-union dispute when any conflict between and among legitimate labor unions
involving representation questions for purposes of collective bargaining or to any other conflict
or dispute between legitimate labor unions. IN SHORT: Labor unions vs labor unions within the
same establishment. Section 1 (x) Rule I, D.O. No. 40-03.

16. An intra-union dispute involves any conflict between and among union members, including
grievances arising from any violation of the rigths and conditions of memvership, violation of or
disagreement over any provision of the union’s constitution or by-laws or disputes arising from
chartering or affiliation of union. Section 1(bb), Rule I, D.O. No. 40-03

17. Other relation labor relations disputes include any conflict between a labor organization and
the employer, or any individual, entity or group that is not a labor organization or worker’s
association. This includes the: (a) cancellation of registration of unions and worker’s
associations; and, (b) a petition for interpleaders. (Section 2, Rule XI, of D.O. No. 40-03)

18. Can the parties opt to settle by agreement? Yes, under Section 1 of R.A. 10396, inserted as
Article 234 of the Labor Code, provides that x xx the parties may, by agreement, settle their
differences by referring thier unresolved issues to voluntary arbitration.

19. What is the venue for complaints involving independent unions, local chapters, or workers’
associations? Any complaint or petition involving unions with independent registrations, local
chapters, or worker’s associations, or their offices or members should be filed with the DOLE
Regional Office that issued their certificates of registrations or certificates of creations of
chartered local (local chapter).

20. Who shall resolved the complaints involving independent unions, local chapters, or worker’s
associations: (a) by the Regional Director for petitions for cancellation or registration of labor
unions with independents registration chartered locals (local chapters) and worker’s
associations and petitions for deregistration of collective bargaining agreements and for this
purpose, he may appoint a hearing officer from the Labor Relations Division; or, (b) by
Mediation-Arbiter in the DOLE Regional Office for other inter-union or intra-union disputes and
other labor relations dispute. Section 5, Rule XI, of D.O. 40-03

21. How about the venue for complaints involving federations, national unions, or industry
unions, trade union centers, and their chartered locals (local chapters) affiliates or member
organizations? The venue shall be with the Regional Office of the Bureau of Labor Relations, but
the complaint or petition shall be heard and resolved by the Bureau. Section 5, Rule XI, D.O. 40-
03
22. Where to appeal for adverse decisions of the BLR? The decision of the Med-Arbiter and
Regional Director may be appealed to the Bureau of Labor Relations by any of the parties within
10 days from receipt thereof, copy furnished to the opposing party. The decision of the Bureau
director is appealable to the Office of the Secretary. Section 16, Rule XI, of D.O. No. 40-03

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