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LABOR LAW ATENEO CENTRAL BAR OPERATIONS 2001 Aris and Camille
This is but a glance at the most important and the latest labor law principles. This reviewer is a product of the great mind of Atty. Marlon Manuel and may act as your pre-week reviewer.. LABOR LAW PRINCIPLES GENERAL PRINCIPLES • What is/are the Constitutional basis/es for the protection of labor? Article I, Sec. 18: The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare. Article XIII, Sec. 3: The State shall afford protection to Labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities. What shall the State guarantee to laborers under the Constitution? Self-organization Collective bargaining and negotiations Peaceful concerted activities including the right to strike Security of tenure Humane Conditions of work Living Wage Participation in policy and decision-making processes What shall it promote? Principle of shared responsibility between workers and employers Preferential use of voluntary modes in settling disputes Enforce mutual compliance
What shall it regulate? Relations between labor and capital (recognizing the right of labor to its just share in the fruits of production and the right of enterprises on reasonable returns) • What is the nature of labor relations? They are not merely contractual. They are so impressed with public interest that they must yield to the common good. (Art. 1700, Civil Code) What is the basis for resolving doubts in favor of labor? Art. 1702 of the Civil Code and Art. 6 of the Labor Code. Moreover, doubts arising from conflicting evidence must be resolved in favor of labor (Prangan v. NLRC, 289 S 142) Management Prerogatives A line must be drawn between policies which are purely business-oriented and policies which affect workers’ rights. Workers have the right to participate in matters affecting their rights (Phil. Airlines v. NLRC). PRE-EMPLOYMENT • • Protection is not just promotion of full employment. humane (PASE v. Drilon). Employment must be decent, just and
Migrant Worker – a person who is to be engaged, is engaged, or has been engaged in a remunerated activity in a state of which he is not a legal resident may only be deployed where the rights of migrant Filipino workers are protected
their obligation/liability do not end upon the actual date of the contract’s expiration but upon the repatriation of the worker. Procuring tickets. where offense committed or where offended resides at the time of commission Mandatory repatriation – if actual age falls below minimum age A person is guilty of illegal recruitment only when s/he gives the impression that s/he has the power to send workers abroad (People v.F. v. Offer or promise of employment for a fee to 2 or more persons – deemed engaged in recruitment. NLRC.E. is not recruitment (Darvin v.O. grant legal assistance and referral to proper medical centers P.C. locally or abroad. This 2-person rule is not a requirement but a factor that gives rise to a presumption (People v. contract services.A. person who has license recruits and commits any of the prohibited acts VENUE: R. visa for another. Power to suspend or cancel license is concurrently vested with POEA and SOLE (Trans Action Overseas Corp.W. Sec.E. Alterations of contracts that improve the benefits are not prohibited. Makes representation with foreign authority and extends immediate assistance including repatriation D. Recruiter’s liability is not terminated by the termination of the agency agreement between the principal and the recruiter. 261 S 757) Recruiter and principal are solidarily liable to the worker. Of Labor) ROLES OF THE FOLLOWING AGENCIES UNDER RA 8042: D.2 LABOR LAW ATENEO CENTRAL BAR OPERATIONS 2001 Aris and Camille • Recruitment . promising or advertising for employment. CA). passports. contracting.T.W.O. whether for profit or not. utilizing. without more. Diaz). ILLEGAL RECRUITMENT LABOR CODE MIGRANT WORKERS ACT (RA 8042) Person recruits without any license or a. In fact. Obligations of recruiter and principal are coterminous with the employment contract. Provides the Filipino migrant worker and his family all the assistance they may need in enforcing contractual obligations . Sees to it that Labor and Social Welfare laws in the foreign countries are fairly applied. Panis). hiring. & includes referrals. person recruits without license or authority authority OR b. Regulates private sector participation in recruitment and implements system for promoting or monitoring overseas employment O. enlisting.L. (Interorient vs. procuring workers. transporting.is committed by doing any of the following acts: canvassing.A.A.
The fact that the workers work in the premises of the company can be an indicator of the existence of the right to control. Mere existence of the right to control is enough. EMPLOYER-EMPLOYEE RELATIONSHIP • 4-fold test: hiring. Payment of compensation by way of commission does not militate against the existence of employer-employee relationship. a person who suffers from a disability is not necessarily a handicapped worker. “Wage” can be on commission basis. machineries. or physical or mental deficiency or injury. equipment.the inclusion of the worker in the payroll. payment of SSS. wages. Rules that merely serve as guidelines towards the achievement of the mutually desired result without dictating the means or methods to be employed in attaining it do not amount to control. free from the control and direction of the principal. Contractor must have either substantial capital OR investment in the form of tools. • Job-contracting Contractor carries on an independent business and undertakes contracted work on his/own account. according to own manner and method of work. Handicapped worker is a person whose earning capacity is impaired by age. If a disabled person is qualified for the position as an able-bodied person. however. Thus. Not all rules are equivalent to control which will give rise to an employer-employee relationship. It need not be actually exercised. not just over the end desired. can also be considered in determining the existence of employer-employee relationship. under his own responsibility. that a person with no definite hours of work or a person who is paid on a per result basis can still be an employee. Note. Existing economic conditions test -. The element of control is absent where a person who works for another does so more or less at his/her own pleasure and is not subject to definite hours or conditions of work and in turn is compensated according to the result of his efforts and not the amount thereof. work premises.3 LABOR LAW ATENEO CENTRAL BAR OPERATIONS 2001 Aris and Camille • Human Resources Development Non-resident aliens cannot be employed in the Philippines without a permit from the DOLE and without a determination that no person in the Philippines is competent. Tools and equipment must be directly related to the contracted job. Apprenticeship without TESDA approval is not valid. Absence of control is indicative of independent contractorship. . Employer-employee relationship is determined by law and its existence cannot be negated by expressly repudiating it in a contract. able and willing to perform the services desired. firing. They aim only to promote the result and therefore do not create an employer-employee relationship. s/he is entitled to full compensation (not to 75%). This means control over the manner of doing the work. if his earning capacity is not impaired. control Control test is the most important.
NLRC. 1998) Job-contractor must register with the DOLE and must submit contract with principal to the DOLE. (DO 10) • Labor-only contracting Contract is not legitimate contracting arrangement. 280 does not apply where the existence of an employment relationship is in dispute.O. or any gratuitous assistance. Contractor is considered as agent of the principal. Art. if the principal did not conspire with the contractor in the acts giving rise to the illegal dismissal. materials and labor. in order to ensure that the employees are paid the wages due them. No particular form of proof is required to prove the existence of an employer-employee relationship. Any competent and relevant evidence may show the relationship. Legitimate job-contractor is the direct employer. tools. The solidary liability of the principal does not extend to the liability of the contractor for illegal dismissal (separation pay and backwages) if there is no fault on the part of the principal. on one hand. the law itself establishes one between the principal and the employees of the contractor for a limited purpose i. the principal shall be solidarily liable with the contractor to the extent of the work performed under the contract. the principal is the indirect employer. financial or otherwise. the term and duration of the relationship. It excludes all capital and investment the contractor may have which are not actually and directly used in the conduct of its business. firing and payment of workers of the contractor. 280. the control of the premises. The contract must assure rights of workers. which distinguishes between regular and casual employees. is not the yardstick for determining the existence of an employment relationship. and their drivers. the nature and extent of the work. the power of the employer with respect to hiring. on the other hand. It is not enough to show substantial capitalization or investment to be considered a legitimate independent contractor.e. Contractor has no substantial capital or investment and the workers perform activities that are directly related to the business of the employer. If only documentary evidence would be required to demonstrate that relationship. it may have received from the principal. the skill required. manner and terms of payment. Art.e. is an employer-employee relationship. the duty to supply premises. i. work. (D. no scheming employer would ever be brought before the bar of justice. . This liability of the principal extends only to the period during which the employees were working for the principal. the control and supervision of the workers. and the mode.. • Miscellaneous The relationship between owners of jeeps and taxicabs. Several other factors should be considered including but not limited to whether the contractor is carrying on an independent business. 290 S 409. Principal is the direct employer. 10) Workers’ term of employment must be coterminous with the term of contract between the principal and the contractor.4 LABOR LAW ATENEO CENTRAL BAR OPERATIONS 2001 Aris and Camille “Substantial capital or investment” refers to the adequacy of resources actually and directly used by the contractor in the performance or completion of the job. or service contracted out. appliances. the right to assign the performance of specified pieces of work. In the event that the contractor fails to pay the wages of the employees. (Rosewood v. under a boundary system. Even in the absence of an employer-employee relationship.
• Regular employee Employee who performs work that is usually necessary or desirable to the usual business of the employer. (Maraguinot v. bar or similar establishment. . not by contract. is indicative of the necessity. however. Thus. 1998) Continuity of employment. NLRC. CLASSES OF EMPLOYEES Employment status is determined by law. the doubt must be resolved in favor of labor. (Art. out of liberality. This applies even outside the construction industry. 287 S 213. 1998) Continuity of employment is not the determining factor. 1998) Probationary employment must not exceed six (6) months unless the job is of such nature that evaluation can only be done after a period longer than six months. with or without compensation. 286 S 401. piece-rate workers can be regular employees. Thus. 294 S 539. under the effective control or supervision of the employer for a substantial period of time shall be deemed an employee of such establishment for labor and social legislation. himself/herself or through another person. The fact that an employee is not required to report at a fixed hour or to keep fixed hours of work does not detract from the employee’s regular status. There is a reasonable connection between the activity performed and the business of the employer. (Caudanetaan v. while not necessary to regular status. or (2) sells the good. if not indispensability of the position. NLRC. 290 S 509. in any night club. or on behalf of another: (1) delivers or causes to be delivered. 212-f) A student who works for a school in exchange for the privilege to study free is not an employee provided s/he is given a real opportunity to finish his/her chosen course. 138) A homeworker’s employer is deemed to be the person who. goods. in favor of regular status. articles or materials to be processed or fabricated in or about a home and then rebuys them after such processing or fabrication. Laguesma. Mode of compensation of employee is not determinative of status/class. Whether one’s employment is regular is not determined by the number of hours one works but by the nature of the work and by the length of time one has been in that particular job. articles or materials to be processed or fabricated in or about a home and thereafter to be returned or disposed of or distributed in accordance with his/her directions. The period can also be extended when the employer. waiting time does not negate regular employment. (PCFI v. (Art. (Labor Congress v. (International Pharmaceuticals v. for his/her own account or benefit. NLRC. clearly gave the employee another opportunity after having failed the employer’s standards. 155) Employee includes one whose work has ceased as a result of a current labor dispute or due to ULP who has not obtained any other substantially equivalent and regular employment.5 LABOR LAW ATENEO CENTRAL BAR OPERATIONS 2001 Aris and Camille Any woman permitted or suffered to work. 1998) The continuous rehiring by the employer of project or work pool employees for the same tasks or nature of tasks that are necessary or desirable to the employer’s usual business or trade grants the employees regular status. 1998) A contractual employee who is allowed to continue working even after the termination of the contract is a regular employee. NLRC. In case of doubt in any contractual provision. (Art.
The project may or may not be within the regular or usual business of the employer. This is allowed provided: (1) the period is agreed upon knowingly and voluntarily by the parties without force or duress or improper pressure exerted on the employee. The Magna Carta for Disabled Persons mandates that a qualified disabled employee should be given the same terms and conditions of employment as a qualified able-bodied person. or a seasonal work. Project employment that If a worker is employed as a project employee. are to be considered as regular employees. (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 employer on the latter. exceeds one year is not converted to regular employment. the employer must submit a report of termination to the nearest public employment office every time his/her employment is terminated due to the completion of each project as required by Policy Instruction No. If they perform work that is usually necessary or desirable to the business of the employer. they are regular employees. The fact that the employer merely “accommodated” the employees is immaterial and does not change the nature of their employment. which are not seasonal. Employees who are hired in relation to continuous special orders. the employee is a regular employee. • Term employee Fixed term employee is engaged to work for a definite period. If the employees’ services are extended beyond the completion of the project. the employees shall be considered regular employees. 1999) • Project employee A project employee is one hired to carry out a specific project or undertaking. shall be considered a regular employee but only with respect to the activity in which the employee is employed and while such activity exists. and (3) the term employment is not resorted to to defeat the rights of the worker. the completion of which is determined and specified at the time of engagement. NLRC. continuous or broken. Length of service is not controlling in project employment. work that does not constitute a project. . Casual employee who has worked for an employer for at least one year. applicable for the construction industry. Disabled employees who are qualified to perform the responsibilities of their position are entitled to regular employment. it must be distinct and separate and identifiable as such. • Casual employee Employee hired for work that is not usually necessary or desirable to the business of the employer. 20. If no standards were given the employee at the start of the probationary period. If it is within the regular or usual business. (Bernardo v.6 LABOR LAW ATENEO CENTRAL BAR OPERATIONS 2001 Aris and Camille A probationary employee who is allowed to work beyond the probationary period becomes a regular employee. July 12. not project employees.
The two criteria are cumulative. And as to discipline officers. . and the supervisor must handle the prescribed responsibilities relating to labor relations. April 12. An employee may not be excluded from appropriate bargaining unit merely because s/he has access to confidential information concerning the employer’s internal business operations and which is not related to the field of labor relations (Sugbuanon v. assist or form their own union. A computer operator.A. form or assist any labor organization extends to confidential employees or 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. when his service record reveals that his duties are basically clerical and non-confidential in nature.. are likewise privy to sensitive and highly confidential records. The term “management policies” and “policy determining” refers to policies about matters that can be the subject of collective bargaining i. The prohibition against supervisory employees joining the rank and file union extends to a supervisors’ local union joining a federation the members of which include local unions of rank and file employees. February 2. (2) to persons who formulate. Supervisory employees cannot join the union of the rank and file employees but may join.U. This prohibition applies only when the rank and file employees are directly under the supervision of the supervisors and the national federation actively represents the rank and file union.E. form or assist in the formation of. the confidential relationship must exist between the employee and his supervisor. D.U. A labor organization composed of both rank and file employees and supervisory employees is not a legitimate labor organization and does not have the legal personality to petition for a certification election. although present. Confidential employees are those who (a) assist or act in a confidential capacity. review and final action by the department heads and other higher executives of the company. • Confidential employees The ineligibility of managerial employees to join. 2000). Thus. they are not confidential employees and should therefore be included in the bargaining unit of rank-and-file employees (D. is not necessarily a confidential employee. Laguesma. where such recommendatory powers ate subject to evaluation.. Both must be met if an employee is to be considered a confidential employee – i. Thus. The test of supervisory or managerial status depends on whether a person possesses authority to act in the interest of the employer and whether such authority is not merely routinary or clerical in nature but it requires the use of independent judgment.S. are not effective and not an exercise of independent judgment. employees who have policy-determining powers but whose powers include only policies not relating to the relationship between the employer and the employees can be a rank and file employee.e.S. 2000).. determine.e. and effectuate management policies in the field of labor relations. terms and conditions of employment.7 LABOR LAW ATENEO CENTRAL BAR OPERATIONS 2001 Aris and Camille RIGHT TO SELF-ORGANIZATION • Managerial and supervisory employees Managerial employees cannot join. v. An employee must have the authority to effectively recommend management policies to be a supervisory employee. the same. a labor union.L.L.
8 LABOR LAW ATENEO CENTRAL BAR OPERATIONS 2001 Aris and Camille • Special groups of employees (guards. (2) proof of majority representation. An independently registered union maintains its separate personality despite affiliation with a federation. The federation. COLLECTIVE BARGAINING • Jurisdictional requirements Collective bargaining is set in motion by the following: (1) possession of the status of majority representation of the employees’ representative in accordance with any of the means of selection. the levy of the special assessment must be authorized by a written resolution of a majority of all the members at a general membership meeting duly called for the purpose. journals and other accounting books. Security guards may join a labor organization of the rank and file employees. Second. This is based on the presumption that the guards are employees of the establishment that they are guarding and are not under a contracting arrangement. disaffiliation may be carried out when there is a shift of allegiance on the part of the majority of the members of the union. depending on their rank. it does not occasion a change of administrator of the contract nor even an amendment of the provisions thereof. has the status of an agent while the local union remains the basic unit of the association. consisting of ledgers. . A disaffiliation does not disturb the enforceability and administration of a collective bargaining agreement. Absent compliance with the mandatory requirements for submission of documents. The test of the grouping is community or mutuality of interest. coop members. a union does not become a legitimate labor organization. acting for and in behalf of its affiliates. The employer’s refusal to make counterproposal to the union’s proposed collective bargaining agreement is an indication of its bad faith. or that of the supervisory employees. in order that The assessment may be validly checked-off. • Bargaining unit The basic test of an asserted bargaining unit’s acceptability is whether or not it is fundamentally the combination which will best assure to all employees the exercise of their collective bargaining rights. First. a special assessment must comply with two basic requirements. the union members must give their individual written authorizations. • Labor organizations Books of account. Employees of cooperatives who are member-owners are not eligible to form or join a labor union. are no longer required for registration of a newly organized union. INC members) The right of members of Iglesia ni Kristo not to join a labor union for being contrary to their religious beliefs does not bar the members of that sect from forming their own union. and (3) demand to bargain. Even before the onset of the freedom period. • Rights of union members To be valid.
9 LABOR LAW ATENEO CENTRAL BAR OPERATIONS 2001 Aris and Camille The fundamental factors in determining the appropriate collective bargaining unit are the following: (1) the will of the employees (Globe doctrine). Certification elections are exclusively the concern of employees. The employer is a mere by-stander and. Collective bargaining history is not decisive of what should comprise the bargaining unit. as amended by D. now allow the employer’s voluntary recognition of a union as the bargaining agent of its employees. The failure of an independently registered labor union to prove its affiliation with a labor federation cannot affect its right to file a petition for certification election as an independent union. The term “Close of certification proceedings” refers to the period from the closing of the polls to the counting and tabulation of the votes. as a general rule. • Bars to Certification Election Since the law prohibits the conduct of a CE when there is a bargaining deadlock submitted to conciliation or arbitration. (2) affinity or unity of the employees’ interest. or similarity of compensation and working conditions (Substantial Mutual Interest Rule). it was not posted prior to ratification and some workers repudiated the ratification) will not bar a CE. until decided. the situation shall be treated as similar in nature to a “bargaining deadlock” when no CE could be held. The votes of the members of the dominated union will not be free. The convenience of the employer is not the determinative factor in forming an appropriate bargaining unit. . If the certified union takes an action against the employer’s refusal to bargain.O. A CBA prematurely signed by the incumbent union and the employer during the freedom period does not affect the petition for certification election filed by another union. The pendency of a formal charge of company domination is a prejudicial question that. with more reason should it not be conducted if. bars proceedings for a certification election. The rules. (3) prior bargaining history. and (4) similarity of employment status. Excepted from the contract bar rule are certain contracts which do not foster industrial stability. It does not include the period for the determination of the challenged votes and the canvass of said votes. despite attempts by the certified union to bring the employer to the bargaining table. the employees’ withdrawal from union membership taking place after the filing of the petition for certification election will not affect the petition. the employer unjustly refused to bargain. Once the required percentage requirement has been reached. An unregistered CBA will not bar a CE. • Representation Issue Direct certification is not allowed. such as substantial similarity of work and duties. Certification election is the most effective and the most democratic way of determining which labor organization can truly represent the working force for collective bargaining. does not have the legal personality to challenge the same. A defective CBA (example. 9.
A CBA negotiated and signed during the pendency of certification election proceedings is valid but cannot be deemed permanent precluding commencement of negotiations by another union. that until the union’s registration is cancelled with finality. the new agreement shall be applied prospectively. however. the parties shall agree on the duration of the effectivity thereof. to personal undertakings of the deposed union. Where a proposal raised by a contracting party does not find print in the CBA. nor were any of the economic provisions and/or terms and conditions pertaining to monetary benefits in the existing agreement modified or altered. the renegotiated terms may validly be for a period of three (3) years. it becomes effective as between the parties whether or not the same has been certified by the DOLE. then the new provisions shall be applied retroactively. Laguesma. labor contracts such as employment contracts and collective bargaining agreements are not enforceable against a transferee of an enterprise. such agreement shall retroact to the day immediately following such date. that this principle is contrary to the principle enunciated in many cases. labor contracts being in personam. 1997) Note. The “substitutionary doctrine” provides that the employees cannot revoke the validly executed CBA with their employer by the simple expedient of changing their bargaining agent. If the parties cannot agree on its effectivity. Since there is no fixed term for CBA provisions. however. If any agreement on such other provisions of the CBA is entered into within six (6) months from the date of expiry of the term of such other provisions as fixed in the CBA. other than the representation aspect. • CBA The certification of a CBA by the DOLE is not required for its validity. the principle of hold over shall apply. (New Pacific Timber v. it is not a part of the said CBA and the proponent has no claim whatsoever to its implementation.10 LABOR LAW ATENEO CENTRAL BAR OPERATIONS 2001 Aris and Camille Where the legal personality of a union is seriously challenged in a petition for cancellation of union registration. The parties must maintain the status quo and must continue in full force and effect the terms and conditions of the existing agreement until a new agreement is reached.” If the parties already had a meeting of the minds before the end of the six-month period. Once a CBA is duly entered and signed by the parties. 2000) The actual signing of the CBA is not determinative of the question whether the “agreement was entered into within six (6) months from the date of expiry of the term of such other provisions as fixed in such collective bargaining agreement. Only provisions embodied in the CBA should be so interpreted and complied with. the existing CBA in its entirety. (Progressive v. it would be more prudent for the Med-Arbiter to grant the request for suspension of proceedings in the certification election case until the issue of the union’s registration shall have been resolved. 271 S 593. continues to have legal effect. NLRC. from the date of the execution of such agreement. The new agent must respect the contract. The term of a CBA shall be five (5) years insofar as the representation aspect is concerned. the pendency of a petition for cancellation of union registration shall not affect the CE proceedings. In case no new agreement is entered into by and between the Company and the union pending appeal of the decision of the NLRC. All other provisions must be renegotiated not later than three (3) years after its execution. March 17. The fact that no agreement was then signed is of no moment. This doctrine is not applicable. If such agreement is entered into beyond six (6) months. . The rule is that unless expressly assumed. In short.
Under this doctrine. A labor dispute includes any controversy or matter concerning terms or conditions of employment or the association or representation of persons in negotiating. the joining in protests or demands by even a small group of employees. fixing. is a protected concerted activity and any interference with such concerted activity is ULP. It is analogous to the situation in Art. . maintaining. though innocent in themselves. The employer’s actions should be evaluated not only on the basis of their implicit implications. The act of compelling employees to sign a document indicating that the employer observed labor standards provisions of law when the employer did not. 384). Where there exists a legitimate issue as to which of several unions is the legitimate representative of employees. It is nor necessary that there be direct evidence showing that any employee was in fact intimidated or coerced. It is not necessary that union activity be involved or that collective bargaining be contemplated. The Court has held that an employer acts well within its rights in transferring an employee as it sees fit provided that there is no demotion in rank or diminution in pay. 284 which makes its an unfair labor practice to dismiss. 252 SCRA 379.11 LABOR LAW ATENEO CENTRAL BAR OPERATIONS 2001 Aris and Camille A dismissal of an employee is a termination dispute that falls within the Labor Arbiter’s jurisdiction. if in furtherance of their interests as such. together with the act of terminating or coercing those who refuse to cooperate with the employer’s scheme is an unfair labor practice even if its is not connected to union activities. expressions of opinion by an employer which. Thus. STRIKES AND OTHER CONCERTED ACTIVITIES • Concept Concerted activity for mutual aid and protection is protected by the Constitution and the Labor Code. whether such termination arose from the interpretation or enforcement of the CBA or the company personnel policies or otherwise. discharge or otherwise prejudice or discriminate against an employee for having given or being about to give testimony under the Labor Code. Totality of conduct doctrine. it is ULP for one of the unions to stage a strike and demand that the employer sit down with it for collective bargaining. but should be appraised against the background of and in conjunction with collateral circumstances. changing or arranging the terms and conditions of employment. (Asis v. regardless of whether or not the disputants stand in the proximate relation of employers and employees. Mass resignation or retirement is not a strike. It preempts the right of the workers to seek better terms and conditions of employment through concerted action. UNFAIR LABOR PRACTICES The test of whether an employer has interfered with and coerced employees in the exercise of their right to self-organization is whether the employer has engaged in conduct which it may reasonably be said tends to interfere with the free exercise of the employee’s rights. frequently were held to be culpable because of the circumstances under which they were uttered or because of their connection with an established collateral plan of coercion or interference. National Labor Relations Commission. A strike is any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute. Strikers do not quit their employment.
and without any connection whatsoever to. therefore. which is automatically included in an assumption or certification order.” who seeks to enjoin a labor strike. the same must be involved in the labor dispute itself or otherwise submitted to him/her for resolution. The assumption of jurisdiction is in the nature of a police power measure. Any union officer or member who knowingly participates in a strike defying a return-to-work order may consequently be declared to have lost his/her employment status. An economic strike changes in character to one for ULP from the time the employer refuses to reinstate some of its striking employees because of their union activities after it had offered to readmit all the strikers and in fact did readmit the others. that the union believes that the employer committed ULP when the circumstances clearly negate even a prima facie showing to warrant such a belief. although a union may take a strike vote and report the same within the statutory cooling-off period. A union office 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 their employment status. A return-to-work order. • Assumption of Jurisdiction The Secretary of Labor has the discretion to determine what industries are indispensable to the national interest. either party to the dispute and. agreeing to accept all employees who had not yet returned to work. • Consequences of strike Mere finding of illegality of strike should not be followed by wholesale dismissal of strikers from employment. (Good Faith Strike rule. The Good Faith Strike rule does not apply to a strike that does not comply with the mandatory procedural requirements (notice. A strike is valid if the strikers honestly believed that the employer committed ULP. is immediately effective and executory despite the filing of a motion for reconsideration. 7-day ban). When an employer accedes to the peaceful settlement brokered by the DOLE. illegal. it waives the issue of the illegality of the strike. and thus. strike vote. Both must be complied with.) It is not enough. the circumstances must have warranted such belief. Before the Secretary of Labor may take cognizance of an issue which is merely incidental to the labor dispute. however. An ordinary striking worker cannot be terminated for mere participation in an illegal strike. • Injunction An “innocent bystander. . A mere claim of good faith would not justify the holding of a strike. cooling-off period. its interests are totally foreign to the context thereof. even if the allegations of ULP are subsequently found out to be true.12 LABOR LAW ATENEO CENTRAL BAR OPERATIONS 2001 Aris and Camille • Requisites The prescribed cooling-off period and the 7-day strike ban after the submission of the report of strike vote are mandatory. A strike undertaken despite the issuance of an assumption or certification order becomes a prohibited activity. must satisfy the court that it is entirely different from. It is not intended to impede the workers’ right to strike but to obtain speedy settlement of the dispute.
and (2) an overt act from which it may be inferred that the employee has no more intent to resume his/her work. Gross negligence implies a want or absence of or failure to exercise slight care or diligence. (2) sufficiently known to the employee. the orders. Note that the employee’s assailed conduct must have been willful or intentional. (1) the intention to abandon. willful in character. the employer should desist from undertaking its own investigation on the same matter. Prompt filing of an illegal dismissal case contradicts the allegation of abandonment. a forbidden act. generally valid and binding on the parties and must be complied with until finally revised or amended. order or instruction depend on the circumstances availing in each case – reasonableness pertains to the kind or character of directives and command and to the manner in which they are made. To be a just cause for dismissal. or the entire absence of care – it evinces thoughtless disregard of consequences without exerting any effort to avoid them. Such misconduct must also be in connection with the employee’s work. the negligence must not only be gross. The basic premise for dismissal on the ground of loss of confidence is that the employee concerned holds a position of trust and confidence. as a just and valid ground for termination. Not every form of violence suffices to affix the seal of illegality on a strike or to cause the loss of employment by the guilty party. a dereliction of duty. regulations. By filing a formal complaint for illegal strike. Company policies and regulations are. It is the transgression of some established and definite rule of action. concluding upon the illegality of the union activity and dismissing outright the union officers involved. or instructions of the employer must be: (1) reasonable and lawful. the willfulness being characterized by a wrongful and perverse attitude. it should also be habitual. Acts of violence must be pervasive and widespread. Abandonment.13 LABOR LAW ATENEO CENTRAL BAR OPERATIONS 2001 Aris and Camille The law grants the employer the option of declaring a union officer who participated in an illegal strike as having lost his/her employment. before they can be sufficient for a declaration of illegality of an otherwise legal strike. means the deliberate. Two elements must be proved. POST-EMPLOYMENT • Just Causes Misconduct is improper or wrong conduct. The reasonableness and lawfulness of a rule. and implies wrongful intent and not mere error in judgment. The misconduct must be of such grave and aggravated character and not merely trivial or unimportant. In order that willful disobedience by the employee may constitute a just cause for termination. and consistently and deliberately resorted to as a matter of policy. and (3) in connection with the duties which the employee has been engaged to discharge. unjustified refusal of an employee to resume his/her employment. . unless shown to be grossly oppressive or contrary to law.
and (4) alleged losses if already realized and expected imminent losses must be proved by sufficient and convincing evidence.14 LABOR LAW ATENEO CENTRAL BAR OPERATIONS 2001 Aris and Camille With respect to rank and file employees. (3) retrenchment must be reasonably necessary and likely to effectively prevent the expected losses. Violation of the right to an investigation. as sanction for its failure to respect the procedural requirements of due process. General standards for valid retrenchment: (1) losses expected should be substantial and not merely de minimis. Employees who remain without work or assignment for a period exceeding six (6) months are in effect constructively dismissed. and such imminence can be perceived objectively. unreasonable or unlikely. To constitute immorality. As regards a managerial employee. (2) the substantial losses must be reasonably imminent. Dismissal of an employee must be for a just and authorized cause and after due process. when there is a demotion in rank and/or diminution in pay. In such case. • Constructive dismissal. a less severe penalty must suffice. Preventive suspension Constructive dismissal is an involuntary resignation resorted to when continued employment is rendered impossible. the circumstances of each particular case must be holistically considered and evaluated in light of the prevailing norms of conduct and applicable laws. NLRC. the value of the article involved in the offense and the previous record of the employee were considered to determine whether dismissal was the appropriate penalty. The conviction of an employee in a criminal case is not indispensable to warrant his/her dismissal. decided last year. Authorized Causes Redundancy exists where the services of an employee are in excess of what is reasonably demanded by the actual requirements of the enterprise. mere existence of a basis for believing that such employee has breached the trust of his/her employer would suffice. or when a clear discrimination. It does not necessarily refer to duplication of work. The penalty imposed on the erring employee must be proportionate to the offense committed. Note that this Wenphil doctrine was abandoned in the Serrano case. however. Preventive suspension is not a penalty in itself. The requirements for the lawful dismissal of an employee by the employer are two-fold: the substantive and the procedural. . (Leonardo v. and that mere uncorroborated assertions and accusations by the employer will not be sufficient. In many cases. The dismissal in such case should be considered illegal. loss of trust and confidence as a ground for termination requires proof of involvement in the alleged events in question. The fact that a criminal complaint against the employee has been dropped by the city fiscal is not binding and conclusive upon a labor tribunal. The fact that no other person was holding the same position as that declared to be redundant does not negate redundancy. if dismissal is grossly disproportionate to the offense. 2000) Preventive suspension is proper when the continued employment of an employee poses a serious and imminent threat to the life and property of the employer or of his/her coemployees. the dismissal should be maintained but the employer must indemnify the employee in the form of damages. Hence. will not necessarily entitle the employee to reinstatement and backwages when such employee was accorded due process during the proceedings before the Labor Arbiter and the employee’s commission of an act constituting a just cause for termination was established. Twin requirements of notice and hearing constitute essential elements of due process in cases of employee dismissal. June 16. however. insensibility or disdain by an employer becomes unbearable to the employee.
The existence of valid grounds to anticipate or expect losses would be sufficient justification for retrenchment. or there is an unfilled position of a similar nature. The “strained relations” rule may be invoke only against employees whose positions demand trust and confidence. The phrase “closure or cessation of operation” applies in cases of both complete and partial cessation of the business operation. Retrenchment is available to a non-stock. but if no such position is available. the State must intervene. reinstatement becomes a legal impossibility – the law cannot exact compliance with what is impossible. An audited financial statement is indeed the normal method of proof of profit and loss but such norm does not compel the Supreme Court to accept the contents of said documents blindly and without thinking. Separation pay shall be allowed as a measure of social justice only in those instances where the employee is validly dismissed for causes other than serious misconduct or those reflecting on his moral character. it is not necessary that losses be actually sustained. more or less. as the one previously occupied by the employee. The failure of the employer to show its income or loss for the immediately preceding years or to prove that it expected no abatement of such losses in the coming years is fatal to the employer’s cause in proving the validity of a retrenchment. and to other benefits or their monetary equivalent computed from the time compensation was withheld up to the time of actual reinstatement. But where it is manifest that the closure is motivated not by a desire to avoid further losses but to discourage the workers from organizing themselves into a union. inclusive of allowances. non-profit organization as a measure adopted to stave off threats to its existence. The determination to cease operations (closure) is a prerogative of management that is usually not interfered with by the State as no business can be required to continue operating at a loss simply to maintain workers in employment. Consequences of Dismissal An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to full backwages. Retrenchment is only a measure of last resort when other less drastic means have been tried and found to be inadequate. Reinstatement presupposes that the previous position from which the employee had been removed still exists. The doctrine of strained relations cannot be applied indiscriminately since every labor dispute almost invariably results in strained relations. An employer found guilty of illegal dismissal may not be ordered to pay backwages beyond the date of closure of business where such closure was due to legitimate business reasons and not merely an attempt to defeat the order of reinstatement. or whose differences with their employer are of such nature or degree as to preclude reinstatement. including the period of imputed service for which the employee is entitled to backwages.15 LABOR LAW ATENEO CENTRAL BAR OPERATIONS 2001 Aris and Camille For retrenchment to be valid. . No law requires that purchaser of a company’s assets should absorb its employees. Award of separation pay (in lieu of reinstatement) is to be computed from the start of employment up to the time of termination thereof.
Serious misconduct does not merely involve offensive utterances and obscene gesture during an informal Christmas gathering of a company’s district sales managers and marketing staff. NLRC. March 2.000. o When the dismissal is without just or authorized cause. the employee is entitled to backwages and reinstatement. where tongues are loosened by liquor or other alcoholic beverages. (G. 2000). NLRC reversed Wenphil (170 SCRA 69) where the Supreme Court held that failure of the employer to give the notice required is a violation of due process. It is valid although declared irregular/ineffectual. 2000). If reinstatement is no longer feasible. If the just cause was proved. Failure to claim backwages in a complaint is a mere procedural lapse which cannot defeat a right granted under a substantive law.2000) He shall however be entitled to separation pay and backwages subject to the following rules: o When the dismissal is for a cause. February 17. does not contemplate a situation where the closure of the business establishment is forced upon the employer and ultimately for the benefit of the employees. as a cause for termination warranting separation pay. is entitled to full backwages from the time he was terminated until the decision finding cause becomes final. April 12. then no reinstastement is possible. NLRC. 117040. January 27. Serrano v.(NFL v. 2000) DISPUTE SETTLEMENT The Secretary of labor’s visitorial and enforcement powers to enforce compliance with labor standards laws. when the government takes over a business. The gathering was just a casual get-together of employees. and thus his/her dismissal was a severe and unlawful sanction..R. NLRC. employees freely express their grievances and gripes against their employers. • Disease Absence of a medical certificate from a competent public health authority indicates that the employee’s disease is not of such a nature that it will not be cured within a period of 6 months even with proper medical treatment. employees are entitled to some relief in the form of severance pay (Cheniver Corp. backwages shall be computed from the time of his dismissal until his actual reinstatement. backwages shall be computed from the time of the illegal dismissal up to the time of the finality of the decision. (Samson v. If the just cause was not proved to have existed. It is to be expected during this kind of gatherings. in cases where employer-employee relationship still exists. . i. can be exercised even if the individual claim per employee exceeds P5. the employee.16 LABOR LAW ATENEO CENTRAL BAR OPERATIONS 2001 Aris and Camille Backwages to be awarded to an illegally dismissed employee should not be diminished or reduced by the earnings derived by the employee elsewhere during the period of the illegal dismissal. SERRANO DOCTRINE: Termination due to authorized cause without giving the notice required under the Labor Code is not a violation of due process. However. v. whether dismissed for just cause or authorized cause but without prior notice.e. Recent enlightening principles on the causes of termination: Closure. even though the transfer is due to a reason beyond the control of the employer.
Upon the appointment by the SEC of a management committee or a rehabilitation receiver. not with the Supreme Court. There is no need for a writ of execution. NLRC.e. is an intra-corporate controversy subject to the SEC’s jurisdiction. as a vehicle for the evasion of existing obligations. it is already cognizable by the labor arbiter. Decisions of the NLRC can no longer be brought straight to the Supreme Court. in circumvention to statutes. secretary and treasurer are commonly regarded as the principal or executive officers of a corporation but other officers are sometimes created by the charter or by-laws of the corporation. a labor dispute. the employer has the burden of proof to prove that the dismissal is legal and failure to discharge this burden shall warrant a finding that the dismissal is illegal. or the board of directors may be empowered under the by-laws of a corporation to create additional offices as may be necessary. it may be referred to the grievance machinery in the CBA or by voluntary arbitration. remedy is to file a petition for certiorari with the Court of Appeals. implementation or enforcement stage. The determination of the rights of a person and the concomitant liability of the corporation arising from the former’s ouster from a corporate office. providing for retroactivity when the parties agreed on the renegotiated provisions within 6 months from the expiry of such provisions. or a showing that the officers indiscriminately stopped its business to perpetrate an illegal act. and to confuse legitimate issues. 1999) A labor arbiter’s order of reinstatement is immediately executory even pending appeal and the posting of a bond by the employer shall not stay the execution for reinstatement. 217 (c) is limited only to those arising from statutes or contracts other than a CBA. violation of rights. it could not be validly levied upon by the sheriff for the satisfaction of the judgment therein. The original and exclusive jurisdiction of labor arbiters for money claims under Art. applies only to CBA’s entered into by the parties as a result of their mutual agreement. there must be an allegation or showing that the officers of the corporation deliberately or maliciously designed to evade the financial obligation of the corporation to its employees. Civil aspects of all cases involving ULP including claims for damages and other affirmative relief should be within the jurisdiction of the labor arbiters. If the property under levy does not belong to the judgment debtor in the NLRC case. For purposes of venue. Even upon a prima-facie showing of ownership by the third party claimant. tribunal or board shall ipso jure be suspended. In illegal dismissal cases. but where there is already actual termination. The power of the court. i. The president. 253-A. a separate action for injunctive relief against such levy may be maintained in court. or the NLRC. This rule applies to labor cases. V. The Petitions for certiorari against decisions of the Secretary of Labor should be filed with the Court of Appeals. A CBA which is part of an arbitral award may be made retroactive to the date of expiration of the previous agreement. vice-president. To justify solidary liability. (Rubberworld Phils. workplace shall be understood as the place or locality where the employee is regularly assigned when the cause of action arose. all actions for claims against the corporation pending before any court. The Voluntary Arbitrator has original and exclusive jurisdiction over money claims arising from the interpretation or implementation of the CBA. to execute its judgment extends only to properties unquestionably belonging to the judgment debtor. 305 S 721. if the third party claim does not involve. Art.17 LABOR LAW ATENEO CENTRAL BAR OPERATIONS 2001 Aris and Camille Where the dispute is just in the termination. nor grow out of. .
transportation. If the agreement was voluntarily entered into and represents a reasonable settlement. taxes and home leave travel allowances (I. June 1. Quitclaims. . “Dire necessity” is not a ground for annulling a quitclaim. Not all waivers and quitclaims made by dismissed employees. LABOR STANDARDS The term “househelper” or “domestic servant” clearly contemplates such househelper or domestic servant who is employed in the employer’s house to minister exclusively to the personal comfort and enjoyment of the employer’s family. they are under the effective control and supervision of the employer through its agent. are void. While it is recognized that there exists the need of a school to attract foreign-hires. waivers or releases are looked upon with disfavor. If an employer accords employees the same position and rank.E. an adjunct to a main suit.A. 2000). shipping costs. A wage disparity between employees occupying the same position but assigned to different regions resulting from differences in the regional minimum wage rates is not “wage distortion. however.S. but throughout the duration of their work. Entitlement to overtime pay must first be established by proof that said overtime work was actually performed. salaries should not be used as an enticement to the prejudice of local-hires.Quisumbing. The power of the NLRC to issue an injunction writ originates from “any labor dispute” upon application by a party thereof.18 LABOR LAW ATENEO CENTRAL BAR OPERATIONS 2001 Aris and Camille The NLRC is vested with authority to look into the correctness of the execution of the decision and to consider supervening events that may affect such execution. v. the workers cannot be considered as field personnel. The local-hires perform the same services as foreign-hires and they ought to be paid the same salaries as the latter. which application if not granted “may cause grave and irreparable damage to any party or render ineffectual any decision in favor of such party. Even if workers perform nonagricultural work away from the employer’s business offices.” Workers who are paid by results are not exempted from the coverage of the overtime pay benefit. Injunction is not a cause of action in itself but merely a provisional remedy. Quitclaims executed by the employees do not estop them from pursuing their claims arising from the unfair labor practices of the employer. the "dislocation factor" and the foreign-hires' limited tenure also cannot serve as valid bases for the distinction in salary rates.” It is an essential requirement that there must first be a labor dispute between the contending parties before the labor arbiter. An employer’s unexplained silence contravening the personnel data sheet and the attendance sheets presented by an employee showing he worked for twelve hours assumes the character of an admission. it is binding on the parties and may not later be disowned simply because of a change of mind. and therefore entitled to overtime pay. The dislocation factor and limited tenure affecting foreign-hires are adequately compensated by certain benefits accorded them which are not enjoyed by local-hires. the presumption is that these employees perform equal work. The term cannot include a househelper working in staffhouses of a company. before an employee may avail of said benefit. if their output rates are not in accordance with the standards prescribed by the rules or with the rates prescribed by the Secretary of Labor. For the same reason. such as housing.
227 Phil. [Sealanes Marine Services. (Salmone v. which could trigger a heart attack or heart failure.19 LABOR LAW ATENEO CENTRAL BAR OPERATIONS 2001 Aris and Camille Compensability of sickness For a sickness and the resulting disability or death to be compensable. NLRC. 25. 1999.R. in order to recover compensation. G. 190 SCRA 337. [Bravo v.] otherwise.] Compensability of the illness or death of seamen need not depend on whether the illness was work connected or not. ECC. Employees Compensation. vs. 2000) . 2000) Cardiovascular diseases are listed as compensable occupational diseases in the Rules of the Employees’ Compensation Commission. No. Inc. [Rollo. the said sickness must be an occupational disease listed under Annex “A” of said Rules. even in a small degree. It will also be recalled that petitioners admitted that private respondent's work as a radio officer exposed him to different climates and unpredictable weather. 8.] Even assuming that the ailment of the worker was contracted prior to his employment. Inc. the claimant or employee concerned must prove that the risk of contracting the disease is increased by the working condition. this still would not deprive him of compensation benefits. [Amended Rules on Employees’ Compensation. no further proof of casual relation between the disease and claimant’s work is necessary to claim compensation. 346 (1990)] It is sufficient that the illness occurred during the term of the employment contract. September 26. 130772. hence. For what matters is that his work had contributed. NLRC. vs. 97 . November 19. p. that the employee must have been in perfect health at the time he contracted the disease. 93. NLRC. (Seagull v.] Neither is it necessary. [Wallem Maritime Services. to the development of the disease and in bringing about his eventual death. June 8. p.
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