Golangco - QA 19 20

 

LABOR LAW REVIEW

Labor Relations Midterms Discussion: 1. Wife can request for immediate repatriation regardless of the cause, maybe as the agent of X or representative of X. in practice, we actually entertain requests for repatriation. Minsan nga hindi asawa, minsan girlfriend pa susulat sa OWWA. We will entertain that.

3.  Who is an employer? a. One who employs the services of others; one for whom employees work and who pays their wages or salaries (IRR of Labor Code) b. Any person acting in the interest of an employer, directly or indirectly. The term shall not include any labor organization or any of its officers or agents except when

2. Yung transfer of accreditation, codal lang yan. acting as employer (Article 219) 3. Is mechanic an employee of the company? Wag niyo ilagay lang yung four-fold test. I-explain niyo rin. 4. Yung sa kasambahay, yes it’s compensable. Yung sagot sa number 2, who has jurisdiction, kung sa tingin niyo employee siya edi you should’ve written Labor Arbiter, kung hindi siya employee edi yung RD. Yung number 3 na is the contention of the employer correct that she is not an employee but a kasambahay, dapat ang explanation niyo dun yung sa Apex Mining. 5. GSIS, yung natanggal sa trabaho. Naforfeit ba? Hindi. Pero kulang yung sagot niyo kasi kahit hindi naforfeit. Yung sagot sa number 1, naconvert lang yung membership niya from active to inactive. Sa number 2, sa GSIS Law hindi siya naforfeit. However sa admin law, naforfeit siya.

LABOR RELATIONS LABOR ARBITERS AND THE NLRC SINGLE-ENTRY APPROACH (SENA) DISCUSSION ON THE NLRC RULES OF PROCEDURE 1.  What is labor relations? It is the interactions between employer and employees or their representatives and the mechanism by which the standards and other terms and conditions of employment are negotiated, adjusted and enforced.

2.  Distinguish labor relations and labor standards Labor Relations Labor Standards Interactions between Terms and conditions of employer and employees or employment that employers their representatives and must comply with and to employees are the mechanism by which the which standards and other terms entitled as a matter of legal and conditions of right employment are negotiated, adjusted and enforced.

It is any person, natural or juridical, domestic or foreign, who carries on in the Philippines any trade, business, industry, undertaking or activity of any kind and uses the services of another person who is under his order as regards the employment except the Government and any of its political subdivisions, branches or instrumentalities including corporations owned or controlled by the Government: Provided, that a self-employed person shall be both employee and employer at the same time. (RA8282)

4.  Who is an employee? Any person who performs services for an employer in which either or both mental and physical efforts are used and who receives compensation for such services, where there is an employer-employee relationship 5.  What are labor disputes? It includes any controversy or matter concerning: A. Terms or conditions of employment; or B. Association or representation of persons in negotiating, fixing, maintaining, charging or arranging the terms and conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.

6.  Citibank v. CA Where the dispute involved is a civil one, not a labor dispute, jurisdiction lies with the Regional Trial Court . - In the complaint filed with the trial court, petitioner alleged that in 1983, it entered into a contract with El Toro, a security agency, for security and protection service. The parties renewed the contract yearly until April 22, 1990. Petitioner further alleged that from June 11, 1990, until the filing of the complaint, El Toro security guards formerly assigned to guard Citibank premises loitered around the bank’s premises in large groups and threatened to stage a strike, which would hamper its operations and the normal conduct of its business and that the bank would suffer damages should a strike push through. On the basis of the allegations of the complaint, it is safe to conclude that the dispute involved is a civil one, not a labor dispute. Consequently, we rule that jurisdiction over the subject matter of the complaint lies with the regional trial court.

 

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Labor Relations 7.  PAL v. NLRC Injunction is not a cause of action in itself but merely a  provisional remedy, an a adjunct djunct to a main suit. - Generally, injunction is a preservative remedy for the protection of one’s substantive rights or interest. It is not a cause of action in itself but merely a provisional remedy, an adjunct to a main suit. It is resorted to only when there is a pressing necessity to avoid injurious consequences which cannot be

9.  SMCC-SUPER v. Charter Chemical and Coating Corp. The inclusion of the supervisory employees in a rank-and file union does not divest it of its status as a legitimate labor organization. - Preliminarily, we note that petitioner union questions the factual findings of the Med-Arbiter, as upheld by the appellate court, that 12 of its members, consisting of batchman, mill operator and leadman, are supervisory employees. However, petitioner union failed to

remedied under any standard of compensation. The application of the injunctive writ rests upon the existence of an emergency or of a special reason before the main case be regularly heard. The essential conditions for granting such temporary injunctive relief are that the complaint alleges facts which appear to be sufficient to constitute a proper basis for injunction and that on the entire showing from the contending parties, the injunction is reasonably necessary to protect the legal rights of the plaintiff pending the litigation. Injunction is also a special equitable relief granted only in cases where there is no plain, adequate and complete remedy at law.

present any rebuttal evidence in the proceedings below after respondent company submitted in evidence the job descriptions of the aforesaid employees. The job descriptions indicate that the aforesaid employees exercise recommendatory managerial actions which are not merely routinary but require the use of independent judgment, hence, falling within the definition of supervisory s upervisory employees under Article 219(m) (formerly Article 212(m)) of the Labor Code. For this reason, we are constrained to agree with the Med-Arbiter, as upheld by the appellate court, that petitioner union consisted of both rank-and-file and supervisory employees.

It is an essential requirement that there must first be a labor dispute between the contending parties before the - The term “controversy” is likewise defined Labor Arbiter. Arbiter.    as “a litigated question; adversary proceeding in a court of law; a civil action or suit, either at law or in equity; a  justiciable dispute.”  dispute.” 

Nonetheless, the inclusion of the aforesaid supervisory employees in petitioner union does not divest it of its status as a legitimate labor organization. The appellate court’s reliance on Toyota is misplaced in view of this Court’s subsequent ruling in Republic v. Kawashima Textile Mfg., Philippines, Inc. 

A “justiciable controversy” is “one involving an active antagonistic assertion of a legal right on one side and a denial thereof on the other concerning a real, and not a mere theoretical question or issue.”

10.  Who are supervisory employees? Those who, in the interest of the employer, effectively recommend such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment

Taking into account the foregoing definitions, it is an essential requirement that there must first be a labor dispute between the contending parties before the labor arbiter. In the present case, there is no labor dispute between the petitioner and private respondents as there has yet been no complaint for illegal dismissal filed with the labor arbiter by the private respondents against the petitioner. The petition for injunction directly filed before the NLRC is in reality an action for illegal dismissal. This is clear from the allegations in the petition which prays for: reinstatement of private respondents; award of full backwages, moral and exemplary damages; and attorney’s fees. As such, the petition should have been filed with the labor arbiter.

8.  Who are managerial employees? One who is vested with powers or prerogatives to lay down and execute management policies and/or to hire, transfer, suspend, layoff, recall, discharge assign or discipline employees

11.  What is the NLRC? The NLRC is an administrative quasi-judicial body and the principal government agency that hears and decides labormanagement disputes. It is attached to the DOLE for program and policy coordination only. 12.  Is it an attached agency of DOLE? Or is it attached for certain purposes only? It is attached to the DOLE for program and policy coordination only. 13.  Can you discuss the composition of the NLRC? Article 220 of the Labor Code provides that there shall be a   National Labor Relations Commission which shall be attached to the Department of   Labor and Employment solely for program and policy coordination, composed of a   Chairman and twenty-three (23) members. Eight (8) members each shall be chosen only from among the nominees of the  workers and employers organizations, respectively. The Chairman and the seven (7)  remaining members shall come from the public sector, with the latter to be chosen  preferably from among the incumbent labor arbiters. 

 

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Labor Relations 14.  How many divisions do we have? Where do we find these divisions? Article 220 of the Labor Code provides that the Commission may sit en banc or in eight (8) divisions, each composed of three (3) members. The Commission shall sit en banc only for purposes of promulgating rules and regulations governing the hearing and disposition of cases before any of its divisions and regional branches and formulating policies affecting its administration and operations. The Commission shall exercise its adjudicatory and all other powers, functions and duties through its divisions. Of the eight (8) divisions, the first, second, third, fourth, fifth and sixth divisions shall handle cases coming from the National Capital Region and other parts of Luzon, and the seventh and eight divisions, cases from the Visayas and Mindanao, respectively.

15.  How does NLRC resolve a case? Article 220 of the Labor Code provides that the Commission shall exercise its adjudicatory and all other powers, functions and duties through its divisions. Of the eight (8) divisions, the first, second, third, fourth, fifth and sixth divisions shall handle cases coming from the National Capital Region and other of Luzon, seventh and eighth divisions, cases parts from the Visayasand andthe Mindanao, respectively: Provided, That the Commission sitting en banc may, on temporary or emergency basis, allow cases within the jurisdiction of any division to be heard and decided by any other division whose docket allows the additional workload and such transfer will not expose litigants to unnecessary additional expense. The divisions of the Commission shall have exclusive appellate jurisdiction over cases within their respective territorial jurisdiction. The concurrence of two (2) Commissioners of a division shall be necessary for the pronouncement of judgment or resolution. Whenever the required membership in a division is not complete and the concurrence of two (2) Commissioners to arrive at a judgment or resolution cannot be obtained, the Chairman shall designate such number of additional Commissioners from the other divisions as may be necessary. The conclusions of a division on any case submitted to it for decision shall be reached in consultation before the case is assigned to a member for the writing of the opinion. It shall be mandatory for the division to meet for purposes of the consultation ordained therein. A certification to this effect signed by the Presiding Commissioner of the division shall be issued, and a copy thereof attached to the record of the case and served upon the parties. The Chairman shall be the Presiding Commissioner of the first division, and the seven (7) other members from the public sector shall be the Presiding Commissioners of the second, third, fourth, fifth, sixth, seventh and eighth divisions, respectively. In case of the effective absence or

incapacity of the Chairman, the Presiding Commissioner of the second division shall be the Acting Chairman. 

16.  Commission proper Article 220 of the Labor Code provides that the Commission shall sit en banc only for purposes of promulgating rules and regulations governing the hearing and disposition of cases before any of its divisions and regional branches and formulating operations.

policies

affecting   its

administration

and

The Commission sitting en banc may, on temporary or emergency basis, allow cases within the jurisdiction of any division to be heard and decided by any other division whose docket allows the additional workload and such transfer will not expose litigants to unnecessary additional expense.

17.  What are the qualifications of a Commissioner? Article 222 of the Labor Code provides that the Chairman and other  Commissioners shall be members of the Philippine Bar and must have been   engaged in the practice of law in the Philippines for at least fifteen (15) years, with at experienceand or exposure in the field be of   least five (5) years labor-management shall preferably   relations, residents of the region where they shall hold office.   Qualifications of the Chairman and the Commissioners: (REM-15) A. Preferably a Resident of the region where he is to hold office; B. Must have Experience or exposure in handling labor management relations for at least 5 years; C. Must be a Member of the Philippine Bar; and D. Must have been engaged in the practice of law in the Philippines for at least 15 years. (2019 Memory Aid) 

18.  What is his term of office? Article 222 of the Labor Code provides that the Chairman, the other Commissioners and the Labor Arbiters shall hold office during good behavior until they reach the age of sixtyfive (65) years, unless sooner removed r emoved for cause as provided by law or become incapacitated to discharge the duties of their office: Provided, however, That the President of the Republic of the Philippines may extend the services of the Commissioners and Labor Arbiters up to the maximum age of seventy (70) years upon the recommendation of the Commission en banc.  19.  What about the Labor Arbiter, what are the qualifications of a Labor Arbiter? Article 222 of the Labor Code provides that the Labor Arbiters shall likewise be members of the Philippine Bar and must have  been engaged in the practice of law in the Philippines for at least ten (10) years, with   at least five (5) years experience or exposure in the field of labormanagement relations.

 

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Labor Relations Qualifications of Executive Labor Arbiters: (ME-10)  A. Must be Members of the Philippine Bar; B. Must have Experience or exposure in handling labor management relations for at least 5 years; and C. Must have been engaged in the practice of law in the Philippines for at least 10 years. (2019 Memory Aid) 

20.  What is the term of office of the Labor Arbiter? Article 222 of the Labor Code provides that the Chairman, the other Commissioners and the Labor Arbiters shall hold office during good behavior until they reach the age of sixtyfive (65) years, unless sooner removed for cause as provided by law or become incapacitated to discharge the duties of their office: Provided, however, That the President of the Republic of the Philippines may extend the services of the Commissioners and Labor Arbiters up to the maximum age of seventy (70) years upon the recommendation of the Commission en banc. NB: Qualifications and term of office of Labor Arbiter and Commissioner: Labor Arbiters Commissioner Commissionerss Qualifications

A. Must be Members of the Philippine Bar; B. Must have Experience or exposure in handling labor management relations for at least 5 years; and C. Must have been engaged in the practice of law in the Philippines for at least 10  years.

A. Preferably a Resident of the region where he is to hold office; B. Must have Experience or exposure in handling labor management relations for at least 5 years; C. Must be a Member of the Philippine Bar; and D. Must have been engaged in the practice of law in the Philippines for at least 15 

years. Term of Office The Chairman, the other Commissioners and the Labor Arbiters shall hold office during good behavior until they reach the age of sixty-five (65) years, unless sooner s ooner removed for cause as provided by law or become incapacitated to discharge the duties of their office: Provided, however, That the President of the Republic of the Philippines may extend the services of the Commissioners and Labor Arbiters up to the maximum age of seventy (70) years upon the recommendation of the Commission en banc. (Article 222)

21.  What about an executive clerk of the Commission? What are his functions? An Executive Clerk aids the Chairman in the exercise of his exclusive administrative supervision over the NLRC and its regional branches. The Commission, when sitting en banc, shall be assisted by the same Executive Clerk, and, when acting thru its Divisions, by said Executive Clerk for its first division and seven (7) other Deputy Executive Clerks for the second, third, fourth fifth, sixth, seventh and eighth Divisions, respectively, in the performance of such similar or equivalent functions and duties as are discharged by the Clerk of Court and Deputy Clerks of Court of the Court of Appeals.

22.  What about a Commission Attorney? Article 220 of the Labor Code provides that The Commission and its eight (8) divisions shall be assisted by the Commission Attorneys in its appellate and adjudicatory functions whose term shall be coterminous with the Commissioners with whom they are assigned. The Commission Attorneys shall be members of the Philippine Bar least one (1) year experience or exposure in the fieldwith of at labor-management relations. They shall receive annual salaries and shall be entitled to the same allowances and benefits as those falling under Salary Grade twenty-six (SG 26). There shall be as many Commission Attorneys as may be necessary for the effective and efficient operation of the Commission but in no case more than five (5) assigned to the Office of the Chairman and each Commissioner.  

23.  What are the cases that fall under the original and exclusive jurisdiction of the Labor Arbiter? Except as otherwise provided under the Labor Code, Labor Arbiters shall have original and exclusive jurisdiction to hear and decide, within 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 nonagricultural: A. Termination disputes (Article 224) B. Cases arising from any Violation of Article 279, including questions involving the legality of strikes and lockouts (Article 224) C. Enforcement of Compromise agreements when there is non-compliance by any of the parties pursuant to Article 233 D. Monetary claims of Overseas contract workers arising from employer-employee relations as provided by Section 10 of RA8042 as amended E. If accompanied with a claim for Reinstatement, those cases that workers may file involving wages, rates of pay, hours of work, and other term and conditions of employment (Article 224)

 

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Labor Relations F. Claims for actual, moral, exemplary and other forms of Damages, arising from employer-employee relations (Article 224) G. ULP cases (Article 224) H. Wage Distortion disputes in unorganized establishments not voluntarily settled by the parties pursuant pur suant to RA6727 I. Other cases as may be provided by law J. Contested cases under the exception clause of Article

longer a dispute with respect to petitioners’ accountability to the System; petitioners already settled their pecuniary obligations to it. Since there is no longer any dispute regarding coverage, benefits, contributions and penalties to speak of, the SSC need not be unnecessarily dragged into the picture. Besides, it cannot be made to act as a collecting agency for petitioners’ claims against the respondent; the Social Security Law should not be so interpreted, lest the

128(b) of the Labor Code ( Visitorial and Enforcement powers of the DOLE Secretary) K. 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 P5,000 regardless of whether accompanied with a claim for reinstatement r einstatement (Article 224)

SSC be swamped with cases of this sort.

24.  What are the cases that fall under the original and exclusive jurisdiction of the NLRC? The NLRC exercises exclusive and original jurisdiction over the following cases: (CVIC) A. Certified cases  –  –   cases certified to it for compulsory arbitration by the SOLE under Article 278 (g) of the Labor Code Code or the President under Article 279 (a) of the Labor B. Verified petition to annul or modify the order or resolution (including those issued during execution proceedings) of the Labor Arbiter C. Petition for Injunction in: a. Ordinary labor cases b. Strikes and lockouts D. Contempt cases.

25.  AMECOS Innovations, Inc. v. Lopez The matter of SSS contributions which necessarily flowed  from employer-employee relationship between the parties should be referred to the labor tribunals . - This Court holds that as between the parties, Article 224(a)(4) of the Labor Code is applicable. Said provision bestows upon the Labor Arbiter original and exclusive jurisdiction over claims for damages arising from employer-employee relations. The observation that the matter of SSS contributions necessarily flowed from the employer-employee relationship between the parties —  shared by the lower courts and the CA —  is correct; thus, petitioners’ petitioners’ claims should have been referred to the labor tribunals. In this connection, it is noteworthy to state that “the Labor Arbiter has jurisdiction to award not only the reliefs provided by labor laws, but also damages governed by the Civil Code.”

Petitioners alleged that respondent misrepresented that she was simultaneously employed by another company; consequently, they did not enroll her with the SSS or pay her SSS contributions. Likewise, when petitioners eventually paid respondent’s SSS contributions as a result of the filing of a complaint by the SSS, respondent was unjustly enriched because the amount was not deducted from her wages in Amecos. The evidence, however, indicates that while respondent was employed, Amecos did not remit premium contributions —  both employer and employees’ shares — to — to the SSS; the SSS demand letter sent to it covers nonpayment of SSS premium contributions from January 2001 up to covering April 2002, amounting to P85,687.84. The Amecos payroll the period from January 30 to November 29, 2001 likewise shows that no deductions for SSS contributions were being made from respondent’s salaries. This can only mean that during the period, Amecos was not remitting SSS contributions —  whether whether the employer or employees’ shares —  pertaining to respondent. As such, during her employment with Amecos, respondent was never covered under the System as SSS did not know in the first instance that petitioners employed her, since the petitioners were not remitting her contributions. Petitioners were forced to remit monthly SSS contributions only when SSS filed I.S. No. 0303-6068 6068 with the Quezon City Prosecutor’s Office. By that time, however, respondent was no longer with Amecos, as her employment was terminated sometime in mid-February of 2002. Given the above facts, it is thus clear that petitioners have no cause of action against the respondent in Civil Case No. 0404-27802. 27802. Since Amecos did not remit respondent’s full SSS contributions, the latter was never covered by and protected under the System. If she was never covered by the System, certainly there is no sense in making her answerable for the required contributions during the period of her employment. And it follows as a matter of consequence that claims for other damages founded on the foregoing nonexistent cause of action should likewise fail.

At the same time, it cannot be assumed that since the dispute concerns the payment of SSS premiums, petitioners’ claim should be referred to the Social Security Commission (SSC) pursuant to Republic Act No. 1161, as amended by Republic Act No. 8282. As far as SSS is concerned, there is no

 

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Labor Relations 26.  Okol v. Slimmers World  A corporate officers’ dismissal is always a corporate act, or an intra-corporate controversy which arises between a stockholder and a corporation. corporation .  - From the documents submitted by respondents, petitioner was a director and officer of Slimmers World. The charges of illegal suspension, illegal dismissal, unpaid commissions, reinstatement and back wages imputed by petitioner against respondents fall

 Actions between employees and employer where the employer-employee relationship is merely incidental and the cause of action precedes from a different source of obligation is within the exclusive jurisdiction of the regular court.  - Not every controversy or money claim by an

squarely within the ambit of intra-corporate disputes. In a number of cases, we have held that a corporate officer’s dismissal is always a corporate act, or an intra-corporate controversy which arises between a stockholder and a corporation. The question of remuneration involving a stockholder and officer, not a mere employee, is not a simple labor problem but a matter that comes within the area of corporate affairs and management and is a corporate controversy in contemplation of the Corporation Code.

employee against the employer or vice-versa is within the exclusive jurisdiction of the labor arbiter. Actions between employees and employer where the employer-employee relationship is merely incidental and the cause of action precedes from a different source of obligation is within the exclusive jurisdiction of the regular court. Here, the employer-employee relationship between the parties is merely incidental and the cause of action ultimately arose from different sources of obligation, i.e., the Constitution and CEDAW.

It is a settled rule that jurisdiction over the subject matter is conferred by law. The determination of the rights of a director and corporate officer dismissed from his employment as well as the corresponding liability of a

Thus, where the principal relief sought is to be resolved not by reference to the Labor Code or other labor relations statute or a collective bargaining agreement but by the general civil law, the jurisdiction over the dispute belongs to

corporation, if any, is anregular intra-corporate dispute to the jurisdiction of the courts. Thus, the subject appellate court correctly ruled that it is not the NLRC but the regular courts which have jurisdiction over the present case.

the of justice and not to the labor arbiter and the regular NLRC. courts In such situations, resolution of the dispute requires expertise, not in labor management relations nor no r in wage structures and other terms and conditions of employment, but rather in the application of the general civil law. Clearly, such claims fall outside the area of competence or expertise ordinarily ascribed to labor arbiters and the NLRC and the rationale for granting  jurisdiction over such claims to these these agencies disappears.

27.  Halaguena v. PAL  An action raising the issue as to whether a provision of the CBA is unlawful and unconstitutional is beyond the  jurisdiction of labor tribunals. - From the petitioners’ allegations and relief prayed for in its petition, it is clear that the issue raised is whether Section 144, Part A of the PALFASAP CBA is unlawful and unconstitutional. Here, the petitioners’ primary relief in Civil Case No. 04-886 04 -886 is the annulment of Section 144, Part A of the PAL-FASAP CBA, which allegedly discriminates against them for being female flight attendants. The subject of litigation is incapable of pecuniary estimation, exclusively cognizable by the RTC, pursuant to Section 19 (1) of Batas Pambansa Blg. 129, as amended. Being an ordinary civil action, the same is beyond the jurisdiction of labor tribunals. The said issue cannot be resolved solely by applying the Labor Code. Rather, it requires the application of the Constitution, labor statutes, law on contracts and the Convention on the Elimination of All Forms of Discrimination Against Women, and the power to apply and interpret the constitution and CEDAW is within the jurisdiction of trial courts, a court of general jurisdiction. In Georg Grotjahn GMBH & Co. v. Isnani , this Court held that not every dispute between an employer and employee involves matters that only labor arbiters and the NLRC can resolve in the exercise of their adjudicatory or quasi-judicial powers. The jurisdiction of labor arbiters and the NLRC under Article 224 (formerly Article 217) of the Labor Code is limited to disputes arising from an employer-employee relationship which can only be resolved by reference to the

Labor Code, other labor statutes, or their collective bargaining agreement.

28.  Kawachi, et al. v. Del Quiero The Labor Arbiter has jurisdiction to award not only the reliefs provided by labor laws but also damages governed by the Civil Code. Code. - Article 224(a) (formerly Article 217(a)) of the Labor Code, as amended, clearly bestows upon the Labor Arbiter original and exclusive jurisdiction over claims for damages arising from employer-employee relations— relations—in other words, the Labor Arbiter has jurisdiction to award not only the reliefs provided by labor laws, but also damages governed by the Civil Code. Reasonable Causal Connection Rule.   -  In the 1999 case of San Miguel Corporation v. Etcuban, t he he Court noted what was then the current trend, and still is, to refer workeremployer controversies to labor courts, unless unmistakably provided by the law to be otherwise. Because of the trend, the Court noted further, jurisprudence has developed the “reasonable causal connection rule.” Under this rule, if there is a reasonable causal connection between the claim asserted and the employer-employee relations, then the case is within the jurisdiction of our labor courts. In the absence of such nexus, it is the regular courts that have  jurisdiction.

 

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Labor Relations In the instant case, the allegations in private respondent’s complaint for damages show that her injury was the offshoot of petitioners’ immediate harsh reaction rea ction as her administrative superiors to the supposedly sloppy manner by which she had discharged her duties. Petitioners’ reaction culminated in private respondent’s dismissal from work in the very same incident. The incident on 10 August 2002 alleged in the complaint for damages was similarly

C. Applications for exemption from wage orders with the NWPC

narrated in private respondent’s Affidavit-Complaint Affidavit -Complaint supporting her action for illegal dismissal before the NLRC. Clearly, the alleged injury is directly related to the employeremployee relations of the parties.

e. Professional License issued by the PRC and violation of the Professional Code of Conduct f. TESDA accreditations g. Other similar permits, licenses or registrations issued by the DOLE or its attached agencies

Where the employer-employee relationship is merely incidental and the cause of action proceeds from a different source of obligation, the Court has not hesitated to uphold the jurisdiction of the regular courts. Where the damages claimed for were based on tort, malicious prosecution, or breach of contract, as when the claimant seeks to recover a debt from a former employee or seeks liquidated damages in the enforcement of a prior employment contract, the  jurisdiction of o f regular courts w was as upheld. T The he sscenario cenario that obtains in this case is obviously different. The allegations in private unmistakably relate to the manner respondent’s of her allegedcomplaint illegal dismissal.

For a single cause of action, the dismissed employee cannot be allowed to sue in two forums . - For a single cause of action, the dismissed employee cannot be allowed to sue in two forums: one, before the labor arbiter for reinstatement and recovery of backwages or for separation pay, upon the theory that the dismissal was illegal; and two, before a court of justice for recovery of moral and other damages, upon the theory that the manner of dismissal was unduly injurious or tortious. Suing in the manner described is known as “splitting a cause of action,” a practice engendering multiplicity of actions. It is considered procedurally unsound and obnoxious to the orderly administration of justice. 29.  What is SENA? 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 30.  What are the cases subject to SENA? All issues arising from labor and employment shall be subject to the 30-day mandatory conciliation-mediation, EXCEPT: A. Notices of strike/lockout or preventive mediation cases with the NCMB B. Issues arising from the interpretation and implementation of the CBA, and those arising from the interpretation and enforcement of company personnel policies which should be processed through the grievance machinery

D. Issues involving violations of: a. AEP b. Private Employment Agency authority or license c. WCP and violations of RA9231 d. Registration under DO18-A, s. 2011

E. Violations of POEA Rules and Regulations involving: a. Serious offenses and offenses penalized cancellation of license

with

b. Disciplinary actions against overseas workers/seafarers which are considered serious offenses, or which carry the penalty of delisting from POEA registry at first offense c. Complaints initiated by the POEA d. Complaints against an agency whose license is revoked, cancelled, expired, or otherwise delisted e. Complaints categorized under the POEA Rules and Regulations as not subject to SENA F. Issues on occupational safety and health standards involving imminent danger situation, dangerous occurences/disabling injury, and absence of personal protective equipment.

Atty. G: Let’s talk about the NLRC. It is understood in two concepts: (1) NLRC as an admin institution which consists of the Commission proper and the Labor Arbiter and (2) NLRC as a quasi-judicial body. NLRC as an admin institution i nstitution They are presided by a Chairman. They are 23 Commissioners. All of them answers to the Chairman. Commission proper  –  –   in the exam, when you speak of  jurisdiction, you have to be sspecific. pecific. So kahit na alam natin yung na we’re referring to the Commission, the NLRC, sa exam natin lagay na lang natin NLRC or Commission ha. Specific. Same with the Labor Arbiter. you’re referring to the Labor Arbiter, hindi NLRC. Kasi alam ko sa ibang readings niyo, sa decision ng Court sinasabi nila NLRC, but they’re actually referring to the Labor Arbiter. Supreme Court naman din kasi, kayo magba-bar pa lang. Kaya dapat Labor Arbiter. You have to be specific. Jurisdiction is specific. When you speak of the admin aspect, the LA decides the cases on their own but they are headed by the ELA. Designation na

 

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LABOR LAW REVIEW

Labor Relations lang ang ELA. Same lang yung name niya; it’s just that mas marami siyang functions kasi yung naghe-head ng admin matters ng region. When it comes to perks, siya meron, siya may priority sa kotse, siya may say sa mga oras ng pagpapasweldo sa tao. Sa NLRC, we have the Chairman and he is assisted by the Executive Clerk of Commission. Yun yung Executive Clerk of Court sa division niya. Composition: sa Manila, we have the first to six divisions and each division is composed of presiding commissioner, the representative from employer sector and from employee sector. So yung tripartite meron per division. Can the commission decide the case en banc? Hindi di ba? Collegiate lang sila, by division sila. But if the Chairman sit in the deliberation of a case belonging to another division, pwede di ba sabi ng Rules, pero hindi siya pwede mag-vote. Pwede lang siguro magbibigay ng inputs. Unless di ba siya ang Presiding Commissioner in that division. So ito lang yung sa admin. NLRC as a quasi-judicial body Yan yung Commission when injunction, you talk about jurisdiction. We havena four cases: certified cases, verified petition and contempt. Yung contempt you have to be specific. Kasi di ba yung Labor Arbiter meron din naman siyang jurisdiction over contempt cases pag committed before it. So kung itatanong yan sa exam, dapat contempt committed before the Commission or the NLRC. Kasi pag nilagay mo lang yung contempt, pwede rin siya s iya sa LA eh. Just be specific with that. You know the qualifications already and the term of office.

Single-Entry Approach So all labor disputes, subject to exceptions like issues involving strikes and lockouts, preventive mediation sa NCMB hindi pwede, yung sa VA hindi pwede, violation of POEA Rules initiated by the POLO, violation of AEP, petition for exemption from wage order, hindi sila pwede. You can see the enumeration di ba, none of these involves those falling under the jurisdiction of the LA. So lahat ng disputes na nasa jurisdiction of the LA, dapat i-undergo sa SENA. Ang SENA it doesn’t affect the jurisdiction of the LA. It  just adds another layer to the resolution of the case. Dito kasi ang gusto nila, bago maging case proper, mag-settle muna ang parties amicably. So the primary purpose is actually to get the case settled, to have the parties enter into an amicable settlement, provided that the terms thereof are not contrary to law, morals or public policy. So pag nagka-ayos sila, nagkaron ng amicable settlement, may the party still lodge a complaint before the appropriate agency? Di ba hindi na kasi may issuance na. yung SEADO magi-issue ng Compromise agreement and it is binding upon the parties and it can be used as evidence against them.

Assuming that during the conciliation proceedings the parties presented pieces of evidence and it was noted in the minutes of the meeting, can these minutes and pieces of evidence be presented in the proceedings in the LA? Hindi di ba, kasi confidential? Pero if you read the rules di ba may waiver. Pag pumirma si complainant ng waiver pwede natin siyang gamitin sa proceedings before the LA. So let’s say na may RFA na, hindi nag-settle nag -settle yung parties. So anong gagawin ni SEADO? Irerefer niya sa appropriate agencies. Let’s say termination say termination dispute, we would refer it to the LA. With respect to the complaint on SENA, with respect to venue. Let’s say we have a complainant who works in Quezon City and he was illegally dismissed and his work is in Manila. Wala na siyang matirhan dito, umuwi siya sa Mindanao, sa Cotabato. Can he file the RFA doon? Hindi. May mga restrictions ‘yan  ‘yan  dapat alam natin. Basta andun sa enumeration okay na. Pero kung marami siyang branch office, tapos merong isang may  jurisdiction, pwede i-consolidate sa kanya, pero for the purpose of consolidation lang, dapat may same issues sila. It’s found in your Rules. There’s a rule on pre-termination, pre -termination, kelangan ba yung parties sagarin yung 30 days hindi sila magsettle? Hindi di ba, pwede siya mag-preterminate. So we now have X, ang ating complainant. Meron siyang referral from the SEADO. Pumunta siya ngayon sa NLRC. Now he will go to the complaint section and what will happen there? He will be asked to fill-out a pro-forma complaint form and this pro-forma complaint form will be explained to him by the Admin Officer of the NLRC. Yung NLRC kasi we talk about the institution. Mamaya na yung Labor Arb, papunta na sa kanya yung jurisdiction. Yung code din niya ieexplain din ng Admin Officer sa tao. So when you receive a copy of the complaint, let’s say you’re the respondent, you’ll be receiving two copies – isang –  isang sulat kamay ni complainant saka isang computerized.

Proceedings from SEADO to LA Proceedings And then, there will be electric raffling  –  –   the complaint will be raffled to the Labor Arbiter. And the Labor Arbiter will now issue summons to the respondent. After that, if the respondent appears, you will have a mandatory conference. Can the parties waive the right to mandatory conference and say “hindi nga kami nagka-ayos nagka-ayos sa SEADO, ano pang silbi s ilbi nito? Waive na naming yan!” Can they waive? Of course the answer is NO di ba, because what is the purpose of the mandatory conference? It’s not only to have the parties settle the case because there are other issues tackled there di ba, stipulation of facts, identifying real parties in interest, and so forth. Pero di ba there are sanctions, if you can recall. Pag two times di nag-appear si complainant, pwedeng i-dismiss yung case without prejudice. But what is his remedy? File a motion to reopen the

 

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Labor Relations case within ten days from receipt thereof. However, if he fails to appear in another mandatory conference, then the case will be dismissed with prejudice na. Hindi na pwede. Another remedy: Kunyari hindi siya naka-file ng motion to reopen the case kasi tapos na yung 10 day period, pwede ba siya mag-refile? Pwede, pero same lang yung effect. What about with respect to our respondent? So two times di siya nag-appear, waiver lang to file his position paper. What are his remedies: Motion to lift his waiver submit his position paper. Let’s say walang settlement during the mandatory conference, the parties will now have to file their respective position papers. Sa Commission, ano bang requirements diyan? Filing of position papers simultaneously. Ibig-sabihin, you cannot get a copy of the other party’s position paper if you do not give a copy of your position paper to the complaint/respondent, as the case may be. And then the parties will have to file their respective replies only with respect to the allegations based on the position paper. Dun sa Rules, if you notice, di ba hanggang reply lang? So does that mean that the parties cannot file any further pleadings, like  joinders? Hindi naman. It’sniya just that pag sa gumawa na si niya Laboryung Arb ng decision niya at hindi nasama resolution  joinder, let’s say may reservation ka, pero sa kanya deemed submitted for resolution… after the reply, the case is already deemed submitted for resolution, but it does not preclude the parties actually from filing further pleadings. What about the conduct of the hearing, is it mandatory? Di ba hindi? It is only upon the discretion of the Labor Arbiter, kung meron siyang kelangan i-clarify. Kung wala, edi okay na. So let us say that after the reply the case is already deemed submitted for resolution and the Labor Arb now issues a decision, and then our respondent, the employer, is aggrieved by the decision. What is his remedy? To file an MR? No di ba. Remember: YOU DON’T FILE AN MR FROM THE DECISION OF THE LABOR ARBITER, YOU ONLY FILE AN APPEAL . What is the reglementary period? 10 days. Tandaan niyo sa Labor, halos lahat ng period, 10 days. Bibihira lang si 5 days, sa Article 129 lang di ba? At sa PCE. What about yung 15 days, yung POEA, yung sa VA. But mostly it’s 10 days. And most of the time you don’t file an MR from the entity who originally  originally   issued the decision. If you remember dun sa Kasambahay, dun sa Dispute resolution mechanism, from the decision of the RD pwede tayo mag-MR bago tayo mag-elevate ng appeal sa Secretary of Labor. Pero mga exceptions lang yun. But the rule is after the decision of the entity of original jurisdiction, then you appeal na . However, dun sa appellate body kelangan natin mag-MR kasi most of the decisions rendered by the attached agencies of DOLE or the labor tribunals, wala na siyang right to appeal before the highest court. Insofar as they are concerned, especially with respect to the NLRC, final and executory na yung decision niya. So kelangan kung maga-avail ka ng petition for certiorari, special civil action

under Rule 65, i-exhaust mo yung admin remedies, which includes the filing of motion for reconsideration. Now let’s go back. Let’s say there is a decis ion rendered by the Labor Arb and the parties do not want to appeal. The LA will now issue a Certificate of Finality. Ang counterpart ng Certificate of Finality with respect to the Commission is an Entry of Judgment. Ang difference lang niya ay yung persons issuing the same: Sa Certificate of Finality directly by the Labor Arb, sa Entry of Judgment, hindi si Commissioner ang directly nagi-issue, si EC/DEC, but the effect is the same: the decision is rendered final and executory.

Appeal from LA Decision to NLRC Let’s say nag-appeal nag-appeal si respondent sa NLRC. In NLRC, they filed a Memorandum of Appeal. You know the grounds, you know the requirements. Please don’t forget the same. In case of monetary awards, you should post a cash or surety bonds. So paano ba yung pag-compute ng cash or surety bonds? Kasama ba yung damages? Hindi na kasama. Difference of Amicable Settlement before the Commission and before the Labor Arbiter So in NLRC, the to other party an opposition. Let before us say the parties wanted enter anfiled Amicable Settlement the commission, is it allowed? YES, however one of the requirements is that if the parties want to enter into an Amicable Settlement, it should be entered into before the Commission stating that the Labor Arbiter had lost jurisdiction over the case except for reinstatement pending appeal, kasi nga di ba reinstatement is final and executory. I will discuss the effects later. Does it mean to say that, halimbawa yung parties hindi nila sinunod yung rules, dun sila kay Labor Arb nag-settle, does it mean that their settlement is not valid and binding? NO, it’ s just that sa Labor Arb hindi sa kanila conclusive yan so ang gagawin nila ipapatawag nila yung parties, ipapa-clarificatory hearing lang to determine the veracity of the compromise agreement entered into by the parties. Kasi pag sa Commission ka nag-settle, there are no other proceedings before the Commission, magi-issue lang sila ng declaring the case close and terminated. Sa baba, hindi ‘yan binding, so pwede di nila i-consider yung Compromise Agreement and decide the case on the merits. Let’s say no settlement has been reached by the parties and then the NLRC issued its decision, what is remedy now of the respondent? He can now file an MR from the decision of the Commission, within ten days from receipt of the decision of the Commission. After this, pwede ba siya mag-appeal? Hindi na. Insofar as the Commission is concerned, final and executory ang decision nila. Unless mag-issue si CA ng TRO, final na, itutuloy na nila yung execution proceedings.

 

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Labor Relations Execution Execut ion Proceedings So what will now happen in the execution proceedings? The records of the case will be referred back to the Office of the Labor Arbiter of origin. Now, pagka-forward ba niya ibig-sabihin automatic yung pag-issue ng writ of execution? Di ba hindi pa. Anong mangyayari? Magkakaron pa ng Pre-Execution Conference. Bakit may Pre-Execution Conference eh final and executory na yung decision? One of the purposes is to give the respondent the opportunity to read(???) the judgment award without need for the issuance of the writ. Second is probably to have the parties enter into an amicable settlement. Di ba in the case of Magbanua, pwede mag-enter into an amicable settlement even if the case is already final and executory. Third is, actually, for the computation of the accrued wages, kasi ang nangyayari diyan. Sa decision, may computation ‘yan. Let’s say December 12, tapos sa MR  –  – If  If you have seen an order denying an MR, it’s usually propro -forma, wala namang computation ‘yan. ‘yan. So dito tatakbo na yung accrued wages hanggang mai-forward dito. So may certain sum na hindi talaga nadetermine ng parties. Dito na lang nila i-settle sa pre-execution conference

ng cash before the Labor Arbiter in the presence of the complainant or the winning party. Pag hindi pwede si complainant, i-tender mo sa Court, ideposit mo sa cashier. Pwede yun. Pano kung cheke? Pwede mong bayaran ng cheke si Sheriff but it should be in the name of the NLRC tapos bahala na si complainant mag-motion to release the money(???) Basically that’s the procedure in the NLRC. Di ba mabilis lang. Easy, noh?

Let us say si Labor Arb nagpa-issue ng Memoranda to determine the veracity of the computation of both parties and he adopted the complainant’s computation, what adopting is now the of the respondent? Can he appeal the order theremedy computation of the complainant? No, hindi na di ba? Kasi in the Commission you only use the remedy of appeal once, on the merits na. Ano ngayon yung remedy niya? It’s a verified petition under Rule XII. But let us say wala silang dispute, hindi lang talaga mabayaran ni respondent. Magi-issue ng writ si Labor Arbiter, he will direct the sheriff to collect a certain sum of money to satisfy the judgment award from the respondent. So the sheriff will now present the writ to the respondent and will give the latter a certain period to comply with the same. If he fails to comply, ano na yung hahabulin ni sheriff? Yung cash bond, kung meron. Second is yung bank deposits. So this is different from the POEA Rules, kasi dun di ba puro bonds. Bakit bank deposits eh may surety bond naman? Kasi mas mabilis i-garnish yung pera sa bangko kesa habulin pa yung surety company. Next will be the surety bond. Now let us say the surety bond ayaw magcomply. Pwede ba siya i-contempt? Pwede di ba? Pwede din ba kunin yung mga real or personal property nila? Pwede din ihabol. Let us say kulang talaga siya ang laki ng  judgment award. Let us say na-modify sa Commission, from 1 Million to 20 Million, so kulang. Ano ang sunod na hahabulin ni sheriff? Yung personal property. What if maraming personal properties pero yung warehouse kinandado niya? File a motion for the issuance of break-open order. The sheriff cannot forcibly open the warehouse and take the property belonging respondent because he may be held liable for robbery. What if the respondent wants to pay? Nung nagpunta si sheriff, nagpresent siya magbayad, kunin na daw ni sheriff yung 20 Million, pwede yun? Hindi pwede. Kelangan pag magbabayad ka

Let’s go now go now to the specific provision of the Rules. First one is venue. Where do you file your complaint? It should be filed in the workplace wor kplace of the employee. What about the OFW? May option sila di ba? Anong sabi sa RA8042 as amended, saan natin ifa-file? Residence of the complainant or sa principal place of business ng agency. ---------------------------------------------------------------------------- –   (a) All cases which Labor RULE IV, SECTION 1. VENUE.  – Arbiters have authority to hear and decide may be filed in the Regional Arbitration Branch having jurisdiction over the workplace of the complainant or petitioner. For purposes of venue, the workplace shall be understood as the place or locality where the employee is regularly assigned at the time the cause of action arose. It shall include the place where the employee is supposed to report back after a temporary detail, assignment, or

 

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Labor Relations travel. In case of field employees, as well as ambulant or itinerant workers, their workplace is where they are regularly assigned, or where they are supposed to regularly receive their salaries and wages or work instructions from, and report the results of their assignment to, their employers. (b) Where two (2) or more Regional Arbitration Branches have jurisdiction over the workplace of the complainant or petitioner, the Branch that first acquired jurisdiction over the case shall exclude the others. (c) When venue is not objected to before the first scheduled mandatory conference, such issue shall be deemed waived. (As amended by En Banc Resolution No. 11-12, Series of 2012) (d) The venue of an action may be changed or transferred to a different Regional Arbitration Branch other than where the complaint was filed by written agreement of the parties or when the Commission or Labor Arbiter before whom the case is pending so orders, upon motion by the proper party in meritorious cases. (e) Cases involving overseas Filipino workers may be filed before the Regional Arbitration Branch having jurisdiction over the place where the complainant resides or where the principal office of any of the respondents is situated, at the option of the complainant. ----------------------------------------------------------------------------Appearances. Can non-lawyers appear? Yes di ba, if they are parties to the case. But in case of LLO seeking to represent one of their members? Okay lang ba yung SPA, will that be sufficient? Hindi, kelangan may certification na Legitimate labor organization registered with the BLR, there should be a resolution (???) and most importantly, the organization must be existing in the establishment of the respondent.

----------------------------------------------------------------------------RULE III, SECTION 6. APPEARANCES 6. APPEARANCES..  –  –  (a) A lawyer appearing for a party is presumed to be properly authorized for that purpose. In every case, he/she shall indicate in his/her pleadings and motions his/her Attorney’s Roll Number, as well as his/her PTR and IBP numbers for the current year and MCLE compliance. (b) A non-lawyer may appear in any of the proceedings before the Labor Arbiter or Commission only under the following conditions: (1) he/she represent representss himself/herself as party to tthe he case; (2) he/she represents a legi legitimate timate labor organization, as defined under Article 212 (now 219) and 242 (now 251) of the Labor Code, as amended, which is a party to the case:

Provided that , he/she presents to the Commission or Labor Arbiter during the mandatory conference or initial hearing: (i) a certification from the Bureau of Labor Relations (BLR) or Regional Office of the Department of Labor and Employment (DOLE) attesting that the organization he/she represents is duly registered and listed in the roster of legitimate labor organizations; (ii) a verified certification issued by the secretary and attested

to by the president of the said organization stating that he/she is authorized to represent the said organization in the said case; and (iii) a copy of the resolution of the board of directors of the said organization granting him such authority; (3) he/she represents a member or members of a legitimate labor organization that is existing within the employer’s establishment, who are parties to the case: c ase: Provided that , he/she presents: (i) a verified certification attesting that he/she is authorized by such member or members to represent them in the case; and (ii) a verified certification issued by the secretary and attested to by the president of the said organization stating that the person or persons he/she is representing are members of their organization which is existing in the employer’s establishment; and, (4) he/she is a duly-accredite duly-accredited d member of any legal aid office recognized by the Department of Justice or Integrated Bar of the Philippines: Provided that, he/she (i) presents proof of his/her accreditation; and (ii) represents a party to the case; (c) Appearances of a non-lawyer in contravention of this Section shall not be recognized in any proceedings before the Labor Arbiter or the Commission. (d) Appearances may be made orally or in writing. In both cases, the complete name and office address of counsel or authorized representative shall be made of record and the adverse party or his counsel or authorized representative properly notified. (e) In case of change of address, the counsel or representative shall file a notice of such change, copy furnished the adverse party and counsel or representative, if any. (f) Any change or withdrawal of counsel or authorized representative shall be made in accordance with the Rules of Court, as amended. (8a)  (g) A corporation or establishment which is a party to the case may be represented by the owner or its president or any other(i) aauthorized person provided that,he/she he/she presents: verified certification attesting that is authorized to represent said corporation or establishment; and (ii) a copy of the resolution of the

 

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Labor Relations board of directors of said corporation, or other similar resolution or instrument issued by said establishment, granting him/her such authority. (6a) (As amended by En Banc Resolution No. 11-12, Series of 2012) ----------------------------------------------------------------------------Can you file a motion for dismiss? Yes, you can. But when will you file it? Before the conduct of mandatory conference or before filing of position paper? Mandatory conference. Pwede ba i-entertain ng LA lahat ng grounds? Hindi di ba. May grounds ‘yan, take note of the same. What if nakalimutan ng abugado mo mag-file ng motion to dismiss? So are you barred from raising the same issue in the position paper? Hindi naman, isama mo na lang siya. Ang kagandahan kasi niyan, pag nag-file ka ng MD, siyempre ireresolve ng Labor Arb ‘yan, so kung wala naman talagang  jurisdiction, hindi na siya magko-conduct ng proceedings, ididismiss na ‘yan outright. Wala ng mandatory conference, wala ng position paper. Yung isa kasi, magpaparticipate ka pa sa lahat ng proceedings. pro ceedings. Yun lang naman ‘yun. ----------------------------------------------------------------------------RULE III

PLEADINGS, NOTICES AND APPEARANCES  –   SECTION 5. PROHIBITED PLEADINGS AND MOTIONS.   – The following pleadings and motions shall not be allowed and acted upon nor elevated to the Commission:

RULE VI APPEALS SECTION 1. PERIODS OF APPEAL.  –  – Decisions,  Decisions, awards, or orders of the Labor Arbiter shall be final and executory unless appealed to the Commission by any or both parties within ten (10) calendar days from receipt thereof; and in case of decisions or resolutions of the Regional Director of the Department of Labor and Employment (DOLE) pursuant to Article 129 of the Labor Code, as amended, within five (5) calendar days from receipt thereof. If the 10th or 5th day, as the case may be, falls on a Saturday, Sunday or holiday, the last day to perfect the appeal shall be the first working day following such Saturday, Sunday or holiday. No motion or request for extension of the period within which to perfect an appeal shall be allowed. (1a)  – The appeal may be entertained SECTION 2. GROUNDS.  – The only on any of the following grounds: (a) If there is  prima facie evidence of abuse of discretion on the part of the Labor Arbiter or Regional Director; (b) If the decision, award or order was secured through fraud or coercion, including graft and corruption; (c) If made purely on questions of law; and/or,  

(a) Motion to dismiss the complaint except on the ground of lack of jurisdiction over the subject matter, improper venue, res judicata, prescription and forum shopping; x x x

(d) 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. (2a) 

SECTION 6. MOTION TO DISMISS.  –  –   Before the date set for the mandatory conciliation and mediation conference, the respondent may file a motion to dismiss on grounds provided under Section 5, paragraph (a) hereof. Such

SECTION 3. WHERE FILED.  – The – The appeal shall be filed with the Regional Arbitration Branch or Regional Office where the case was heard and decided. d ecided. 

motion shall be uponrequiring by the Labor before the issuance of acted an order the Arbiter submission of position paper. An order denying the motion to dismiss, or suspending its resolution until the final determination of the case, is not appealable. (6a) (As amended by En Banc Resolution No. 11-12, Series of 2012) -----------------------------------------------------------------------------  

 –   SECTION 4. REQUISITES (a) The appeal shall be: FOR PERFECTION OF APPEAL.   –

Period to appeal and grounds to appeal. From the receipt of the decision, 10 days. But remember na n a sa Article 129, may appellate  jurisdiction  jurisdiction ang NLRC, so ano ang period to appeal natin d’on? 5 days. Ang grounds and requisites for the perfection of appeal alam niyo na ‘yan.  ‘yan.  There are old readings na ang sabi kelangan pa ng Certification of Non-Forum Shopping, hindi na siya kasama. Kasi hindi naman talaga siya initiatory pleading. Dati kasi gusto lang nila i-dismiss yun.

(1) filed within the reglementary provided in Section 1 of this Rule;

period

(2) verified by the appellant himself/herself in accordance with Section 4, Rule 7 of the Rules of Court, as amended; (3) in the form of a memorandum of appeal which shall state the grounds relied upon and the arguments in support tthereof, hereof, tthe he relief prayed for, and with a statement of the date the appellant received the appealed decision, award or order;  (4) in three (3) legibly typewritten or printed copies; and, (5) accompanied by:

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Labor Relations grounds blacklist an accredited bonding company. (i) 

proof of payment of the required appeal fee and legal research fee, (ii)  posting of a cash or surety bond as provided in Section 6 of this Rule, and (iii)  proof of service upon the other parties.

(b) A mere notice of appeal without complying with the other requisites aforestated shall not stop the running of the period for perfecting an appeal. c) The appellee may file with the Regional Arbitration Branch or Regional Office where the appeal was filed his/her answer or reply to appellant's memorandum of appeal, not later than ten (10) calendar days from receipt thereof. Failure on the part of the appellee who was properly furnished with a copy of the appeal to file his/her answer or reply within the said period may be construed as a waiver on his/her part to file the same. (d) Subject to the provisions of Article 218 (now 225) of the Labor Code, as amended, once the appeal is perfected in accordance with these Rules, the Commission shall

A cash or surety bond shall be valid and effective from the date of deposit or posting, until the case is finally decided, resolved or terminated, or the award satisfied. This condition shall be deemed incorporated in the terms and conditions of the surety bond, and shall be binding on the appellants and the bonding company. The appellant shall furnish the appellee with a certified true copy of the said surety bond with all the abovementioned supporting documents. The appellee shall verify the regularity and genuineness thereof and immediately report any irregularity to the Commission. Upon verification by the Commission that the bond is irregular or not genuine, the Commission shall cause the immediate dismissal of the appeal, and censure the responsible parties and their counsels, or subject them to reasonable fine or penalty, and the bonding company may be blacklisted. No motion to reduce bond shall be entertained except on

limit itself to reviewing and deciding only the specific issues that were elevated on appeal. (4a)  x x x

meritorious grounds, and only upon the posting of a bond in a reasonable amount in relation to the monetary award.

 –   In case the decision of the Labor SECTION 6. BOND.  – Arbiter or the Regional Director involves a monetary award, an appeal by the employer may be perfected only upon the posting of a bond, which shall either be in the form of cash deposit or surety bond equivalent in amount to the monetary award, exclusive of damages and attorney’s fees.

The mere filing of a motion to reduce bond without complying with the requisites in the preceding paragraphs shall not stop the running of the period to perfect an appeal. (6a) (As amended by En Banc Resolution No. 1415, Series of 2015)  

In case of surety bond, the same shall be issued by a reputable bonding company duly accredited by the Commission, and shall be accompanied by original or certified true copies of the following: (a) A joint declaration under oath by the employer, his/her counsel, and the bonding company, attesting that the bond posted is genuine, and shall be in effect until final disposition of the case; (b) An indemnity agreement between the employerappellant and bonding company; (c) Proof of security deposit or collateral securing the bond: provided, that a check shall not be considered as an acceptable security; and, (d) Notarized Notarized board resolution or secretary’s certificate from the bonding company showing its authorized signatories and their specimen signatures. The Commission through the Chairman may on justifiable

----------------------------------------------------------------------------Sa bond, take note of the requirements. You take note of the cases. Yung case ni McBurnie, yung Milan, alam niyo na ‘yan. How much is the reasonable amount? 10% of the monetary award, excluding the damages. Yung case of Milan v. NLRC , (????? Milan v. NLRC involves issue of jurisdiction over the employer’s claims against the employee. employee . Perhaps Atty. Golangco was referring to the case of Manila Mining Co. v. Amor???)  halos same lang naman sila ng jurisprudence ni McBurnie, it’s just that pag nag-motion ka to reduce bond sabi mo di ka makakapagpost kasi bankrupt na company niyo tapos nagpost ka ng 10%, inutang mo pa ‘yan, ibig-sabihin ibig-sabihin ba na-perfect na yung appeal mo? Di ba sabi sa Milan, hindi pa kasi yung NLRC has the discretion to determine whether or not to grant your motion to reduce bond and if it believes that you failed to prove that you are not capable of posting the entire amount, then they will issue an order requiring the party to post an additional bond and they will be given a fresh period of 10 days. Tapos hindi naman talaga naperfect yung appeal kasi ang napost nila as bond ay cheke pero yung cheke walang pera, nagbounce. So hindi nila naperfect yung appeal nila. Take note of the case of Smart Communications v. Solidum. Don’t forget that case. This is an exception lang ha. So kung mag-

 

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Labor Relations eexam kayo tapos yung mga respondent niyo same as Globe, Smart, Meralco, yung mga sobrang yamang company. If you fail to post a collateral security, tiyak mababayaran pa rin r in nila ‘yan. Also the case of Lepanto v. Icao. Sabi ng Court, it is valid, they have perfected the appeal kasi yung pera nasa Commission naman talaga siya. Let’ Let’s say a party posted a cash bond and they won the appeal, the money will never be released again, hanggang pending pa din yung case, hindi ibibigay ng Commission ‘yan. (????? Not sure if tama intindi ko sa sinabi ni Ma Ma’’am???) There’s another case where the parties, instead of posting a cash There’ or surety bond, submitted a Metrobank certificate. Did it perfect the appeal? Hindi di ba? Kasi ang sabi sa rules cash or surety bond. So hindi na-perfect ang appeal.

----------------------------------------------------------------------------McBurnie v. Ganzon Furthermore, on the matter of the filing and acceptance of motions to reduce appeal bond, as provided in Section 6, Rule VI of the 2011 NLRC Rules of Procedure, the Court hereby RESOLVES that henceforth, guidelines shall be observed:

the

following

(a) The filing of a motion to reduce appeal bond shall be entertained by the NLRC subject to the following conditions: (1) there is meritorious ground; and (2) a bond in a reasonable amount is posted; (b) For purposes of compliance with condition no. (2), a motion shall be accompanied by the posting of a provisional cash or surety bond equivalent to ten percent (10), of the monetary award subject of the appeal, exclusive of damages and attorney’s fees;  fees;  (c) Compliance with the foregoing conditions shall suffice to suspend the running of the 10-day reglementary period to perfect an appeal from the labor arbiter’s decision to the NLRC; (d) The NLRC retains its authority and duty to resolve the motion to reduce bond and determine the final amount of bond that shall be posted by the appellant, still in accordance with the standards of meritorious grounds and reasonable amount; and (e) In the event that the NLRC denies the motion to reduce bond, or requires a bond that exceeds the amount of the provisional bond, the appellant shall be given a fresh period of ten (10) days from notice of the NLRC order within which to perfect the appeal by posting pos ting the required appeal bond.

Manila Mining Co v. Amor

Conditions for the Reduction of Appeal Bonds. - The issue that has bedevilled labor litigation for long has been clarified by the ruling in McBurnie v. Ganzon, et al ., ., which built on and extended the ruling that while it is true that reduction of the appeal bond has been allowed in meritorious cases on the principle that substantial justice is better served by allowing appeals on the merits, it has been ruled that the employer should comply with the following conditions: (1) the motion to reduce the bond shall be based on meritorious grounds; and (2) a reasonable amount in relation to the monetary award is posted by the appellant, otherwise the filing of the motion to reduce bond shall not stop the running of the period to perfect an appeal. In this case, we see that with no proof to substantiate its claim, petitioner moved for a reduction of the appeal bond on the proffered basis of serious losses and reverses it supposedly sustained in the years prior to the rendition of the Labor Arbiter’s decision.  decision. 

The first condition may be left for the nonce. As to the second condition, we may consider that the amount of P100,000.00 supposedly posted was provisional bond sufficient to suspend the running of the 10-day reglementary period to perfect an appeal from the Labor Arbiter’s decision.  decision.  That would however not improve petitioner’s position one bit. Respondent correctly called attention to the fact that the check submitted by petitioner was dishonored upon presentment for payment, thereby rendering the tender thereof ineffectual. Although the NLRC chose not to address the issue of the perfection of the appeal as well as the 2005, reduction the bond in itsthat Resolution datedonly 25 April the ofrecord shows petitioner manifested its deposit of the funds for the check 24 days before the resolution of its appeal or 116 days after its right to appeal the Labor L abor Arbiter’s decision had expired. expired. Having filed its motion and memorandum on the very last day of the reglementary period for appeal, moreover, petitioner had no one but itself to blame for failing to post the full amount pending the NLRC’s action on its motion for reduction of the appeal bond. If redundancy be risked it must be emphasized that the posting of a bond is indispensable to the perfection of an appeal in cases involving monetary awards from the decision of the Labor Arbiter. Since it is the posting of a cash or surety bond which confers jurisdiction upon the NLRC, the rule is settled that noncompliance is fatal and has the effect of rendering the award final and executory.

 

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Labor Relations Smart Communications v. Solidum

Employees are entitled to accrued salaries, allowances, benefits, incentives and bonuses until the NLRC’s reversal of the LA’s order of reinstatement becomes final and executory. - The NLRC’s 29 May 2009 Decision became final and executory on 10 August 2009 as shown on the entry of judgment. Moreover, the certification issued by the NLRC states that the NLRC’s 29 May 2009 Decision became final and executory on 10 August 2009. Since the NLRC’s 29 May 2009 Decision became final and executory on 10 August 2009, Solidum is entitled to P2,881,335.86, representing his accrued salaries, allowances, benefits, incentives and bonuses for the period 21 January to 20 July 2009. In Bago v. NLRC , the Court held that employees are entitled to their accrued salaries, allowances, benefits, incentives and bonuses until the NLRC’s reversal of the labor arbiter’s order of reinstatement becomes final and executory, as shown on the entry of judgment.

Lepanto Consolidated Mining Corp. v. Icao

In appeals from any decision or order of the labor arbiter, the posting of an appeal bond is required under  Article 229 of the Labor Code. - In appeals from any decision or order of the labor arbiter, the posting of an appeal bond is required under Article 229 of the Labor Code. We now turn to the main question of whether petitioner’s Consolidated Motion to release the cash bond b ond it posted in a previous case, for application to the present case, constitutes compliance with the appeal bond requirement. While it is true that the procedure undertaken by petitioner is not provided under the Labor Code or in the NLRC Rules, we answer the question in the affirmative. We reiterate our pronouncement in  Araneta v. Rodas, where the Court said that when the law does not clearly provide a rule or norm for the tribunal to follow in deciding a question submitted, but leaves to the tribunal the discretion to determine the case in one way or another, the judge must decide the question in conformity with justice, reason and equity, in view of the circumstances of the case. Applying this doctrine, we rule that petitioner substantially complied with the mandatory requirement of posting an appeal bond for the reasons explained below. First, there is no question that the appeal was filed within the 10-day reglementary period. Except for the alleged failure to post an appeal bond, the appeal to the NLRC was therefore in order. Second, it is also undisputed that petitioner has an unencumbered amount of money in the form of cash in

the custody of the NLRC. To reiterate, petitioner had posted a cash bond of P401,610.84 in the separate case Dangiw Siggaao, which was earlier decided in its favor. As claimed by petitioner and confirmed by the Judgment Division of the Judicial Records Office of this Court, the Decision of the Court in Dangiw Siggaao had become final and executory as of 28 April 2008, or more than seven months before petitioner had to file its appeal in the present case. This fact is shown by the Entry of Judgment on file with the aforementioned office. Hence, the cash bond in that case ought to have been released to petitioner then.

Validity of cash or surety bond. - Under the Rule VI, Section 6 of the 2005 NLRC Rules, “[a] cash or surety bond shall be valid and effective from the date of deposit or posting, until the case is finally decided, resolved or terminated, or the award satisfied.” Hence, it is clear that a bond is encumbered and bound to a case only for as long as 1) the case has not been finally decided, resolved or terminated; or 2) the award has not been satisfied. Therefore, once the appeal is finally decided and no award needs to be satisfied, the bond is automatically released. Since the money is now unencumbered, the employer who posted it should now have unrestricted access to the cash which he may now use as he pleases —  as appeal bond in another case, for instance. This is what petitioner simply did.

Provisions on the posting of an appeal bond in exceptional cases. -  This ruling remains faithful to the spirit behind the appeal bond requirement which is to ensure that workers will receive the money awarded in their favor when the employer’s emplo yer’s appeal eventually fails.  fails.  There was no showing at all of any attempt on the part of petitioner to evade the posting of the appeal bond. On the contrary, petitioner’s move showed a willingness to comply with the requirement. Hence, the welfare of Icao is adequately protected. Moreover, this Court has liberally applied the NLRC Rules and the Labor Code provisions on the posting of an appeal bond in exceptional cases. In Your Bus Lines v. NLRC , the Court excused the appellant’s failure to post a bond,  bond,  because it relied on the notice of the decision. While the notice enumerated all the other requirements for perfecting an appeal, it did not include a bond in the list. In Blancaflor v. NLRC , the failure of the appellant therein to post a bond was partly caused by the labor arbiter’s failure to state the exact amount of monetary award due, which would have been the basis of the amount of the bond to be posted. In Cabalan Pastulan Negrito Labor  Association v. NLRC , petitioner-appellant was an association of Negritos performing trash-sorting services in the American naval base in Subic Bay. The plea of the association that its appeal be given due course despite its non-posting of a bond, on account of its insolvency and poverty, was granted by this Court. In UERM-Memorial

 

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Labor Relations Medical Center v. NLRC , we allowed the appellantemployer to post a property bond in lieu of a cash or surety bond. The assailed judgment involved more than P17 million; thus, its execution could adversely affect the economic survival of the employer, which was a medical center.

If in the above-cited cases, the Court found exceptional circumstances that warranted an extraordinary exercise of its power to exempt a party from the rules on appeal bond, there is all the more reason in the present case to find that petitioner substantially complied with the requirement. We emphasize that in this case we are not even exempting petitioner from the rule, as in fact we are enforcing compliance with the posting of an appeal bond. We are simply liberally applying the rules on what constitutes compliance with the requirement, given the special circumstances surrounding the case as explained above. ----------------------------------------------------------------------------Certified cases. Ano ang effect nito? Kahit may MR, if a certification order is issued, all the parties, if they are participating in a strike, they should stop and go back to work. What is the effect of the defiance? If he defies, it will be a valid ground for the termination of his employment. Take note that dito, we do not need to distinguish between a union officer and a union member. Di ba pagka may illegal strike, halimbawa yung mga period hindi nila na-comply pero wala silang ginawang prohibited activites, is it a valid ground for the termination of the employment of the employees? Only if he is a union officer. Pero kung union member hindi, para matanggal siya sa trabaho, kelangan mag-commit siya ng prohibited activities. Pero dito [sa certification/assumption order], there is no need to distinguish kasi mere defiance is an illegal activity itself. Procedure in certified cases, alam niyo na ‘yon, kelangan may hearing muna before i-certify ni Secretary of Labor yung case.

----------------------------------------------------------------------------RULE VIII CERTIFIED CASES  –   It is the declared policy of SECTION 1. POLICY.    – certification of labor disputes for compulsory arbitration to ensure and maintain industrial peace based on social  justice and national interest by having a full, complete and immediate settlement or adjudication of all labor disputes between the parties, as well as issues that are relevant to or incidents of the certified issues.

SECTION 2. CERTIFIED LABOR DISPUTES.  – Certified – Certified labor disputes are cases certified to the Commission for compulsory arbitration under Article 263 (now 278) (g) of the Labor Code, as amended.  –   (a) Upon SECTION 3. EFFECTS OF CERTIFICATION.   – certification, the intended or impending strike or lockout is automatically enjoined, notwithstanding the filing of

any motion for reconsideration of the certification order nor the non-resolution of any such motion which may have been duly submitted to the Office of the Secretary of Labor and Employment. If a work stoppage has already taken place at the time of the certification, all striking or locked out employees shall immediately return to work and the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. (b) All cases between the same parties, except where the certification order specifies otherwise the issues submitted for arbitration which are already filed or may be filed, and are relevant to or are proper incidents of the certified case, shall be considered subsumed or absorbed by the certified case, and shall be decided by the appropriate Division of the Commission. Subject to the second paragraph of Section 4 of Rule IV, the parties to a certified case, under pain of contempt, shall inform their counsels and the Division concerned of all cases pending with the Regional Arbitration Branches and the Voluntary Arbitrators relative or incident to the certified case before it. (c) Whenever a certified labor dispute involves a business entity with several workplaces located in different regions, the Division having territorial jurisdiction over the principal office of the company shall acquire jurisdiction to decide such labor dispute; unless the certification order provides otherwise.  –   Non-compliance SECTION 4. EFFECTS OF DEFIANCE.   – with the certification order of the Secretary of Labor and Employment shall be considered as an illegal act committed in the course of the strike or lockout, and shall authorize the Commission to enforce the same under pain of immediate disciplinary action, including dismissal or loss of employment status or payment locking-out employer of backwages, damagesby the and/or other affirmative relief, even criminal prosecution against the liable parties. The Commission may also seek the assistance of law enforcement agencies to ensure compliance and enforcement of its orders and resolutions.

SECTION 5. PROCEDURE IN CERTIFIED CASES.  – (a) – (a) When there is no need to conduct a clarificatory hearing, the Commission shall resolve all certified cases within thirty (30) calendar days from receipt by the assigned Commissioner of the complete records, which shall include the position papers of the parties and the order of the Secretary of Labor and Employment denying the motion for reconsideration of the certification order, if any. (b) Where a clarificatory hearing is needed, the

 

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Labor Relations Commission shall, within five (5) calendar days from receipt of the records, issue a notice to be served on the parties through the fastest means available, requiring them to appear and submit additional evidence, if any. All certified cases shall be resolved by the Commission within sixty (60) calendar days from receipt of the complete records by the assigned Commissioner.

subjected to subsidiary imprisonment of one (1) day for every One Hundred Pesos (P100.00) fine.

(c) No motion for extension or postponement shall be entertained. (5a) 

immediately issued. Thereafter, the guilty person shall be brought to the nearest police station and be detained therein for a period specified in the Order of Contempt.

SECTION 6. EXECUTION OF JUDGMENT IN CERTIFIED  –   Upon issuance of the entry of judgment, the CASES.  – Commission, motu proprio or upon motion by the proper party, may cause the execution of the judgment in the certified cases. ----------------------------------------------------------------------------Contempt. You should know what direct and indirect contempt is. The penalties. And where to appeal in case it is committed before the Commission and period to appeal. ----------------------------------------------------------------------------RULE IX

CONTEMPT – Any person may be summarily SEC. 1. Direct Contempt.  – Any adjudged guilty of direct contempt for any disrespectful act or misbehavior committed near, or in the presence of, the Chairman, any member of the Commission or any Labor Arbiter, as to obstruct or interrupt the proceedings before the same, such as but not limited to the following: a)  Use of intemperate language during the proceedings before said officials; b)  Offensive acts committed towards the said officials; c)  Refusal to be sworn or to answer as a witness; d)  Refusal to subscribe an affidavit or a deposition when lawfully required to do so;

 

e) Refusal without any even justifiable reason, Minutesto of sign, the proceedings if present or the has participated in the discussion/deliberation; and f)  Other analogous circumstances. A. Punishment for direct contempt.  –  –   A person cited for Direct Contempt may be penalized with either a fine, imprisonment, or both. If the offense is committed against the Commission or any member thereof, the fine shall not exceed Five Hundred Pesos (Php500.00) and the imprisonment shall not n ot exceed five (5) days. If the offense is committed against a Labor Arbiter, the fine shall not exceed One Hundred Pesos (Php100.00) and the imprisonment shall not exceed one (1) day. Where fine is imposed, the Order of Contempt shall immediately be issued. If the person adjudged guilty of direct contempt refuses to pay the fine, s/he shall be

Where imprisonment is imposed, the Chairman, the Commissioner or the Labor Arbiter, may deputize any security personnel of the NLRC to hold the guilty person or, when necessary, secure police assistance. The Commitment Order and the Order of Contempt shall be

In both cases, the Order of Contempt shall contain the name and address of the respondent, facts constituting the contemptuous acts and penalty imposed. B. Remedy.   – The – The person adjudged in direct contempt by a Labor Arbiter may appeal to the Commission by filing a Memorandum of Appeal within five (5) calendar days from date of order. The Memorandum of Appeal shall state the grounds upon which the appeal is anchored and be accompanied by proof of payment of the appeal fee of Five Hundred Pesos (P500.00). The execution of the  judgment shall be suspended pending the resolution of the appeal upon the filing by such person of a bond of Five Hundred Pesos (P500.00), on the condition that he will abide by and perform the judgment of the Commission should the appeal be decided against him. Judgment of the Commission on direct contempt is immediately executory and unappealable. (As amended by En Banc Resolution No. 14-17, Series of 2017)  

SEC. 2. Indirect Contempt.  –  –   Any person adjudged guilty of any of the following acts may be punished for indirect contempt: a)  Misbehavior of any NLRC officer or employee in the performance of his/her official duties or in his/her official transaction; b)  Disobedience of, or resistance to, a lawful writ, order or decision issued by the Commission or Labor Arbiter and other processes issued pursuant to said writ, order or decision; c)  Any abuse of, or any unlawful interference with the processes or proceedings not constituting direct contempt; d)  Any improper conduct tending, directly or indirectly, to impede, obstruct or degrade the administration of  justice; e)  Assuming to be an attorney or a representative of party without authority; f)  Failure to obey a subpoena duly served; g)  Use of derogatory, offensive, malicious or false statements in pleadings submitted before the Commission or its Regional Arbitration Branches where the proceedings are pending; h)  Making any public, baseless and malicious

 

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Labor Relations statements tending to undermine the administration of justice against the Commission, any member thereof or any Labor Arbiter, by any party or counsel who has a case, pending or otherwise, before the officials concerned; and i)  Other grounds analogous to the foregoing.

D. A writ of execution may be issued to enforce the decision imposing such fine and/or the consequent damages as punishment for indirect contempt. E. Remedy . i. 

A. How proceedings commenced.  –  –   The Commission or any Labor Arbiter may, motu proprio or upon motion of a party, issue an Order directing the respondent to show cause why s/he should not be punished for committing acts constituting Indirect Contempt, in connection with or in relation to a pending case.

Appeal from the Order of the Labor Arbiter. – Arbiter.  – The  The person adjudged guilty of indirect contempt may appeal the Order issued by the Labor Arbiter to the Commission by filing a Memorandum of Appeal within five (5) calendar days from receipt thereof. The Memorandum of Appeal shall state the grounds upon which the appeal is anchored and be accompanied by proof of payment of the appeal fee of Five Hundred Pesos (P500.00).

Otherwise, an action for indirect contempt may only be commenced through a verified petition. ii.  The respondent may file her/his verified Answer/Comment within ten (10) calendar days from receipt of the Show Cause Order.

Effect of Filing of the Appeal.  –  –   The filing of the appeal shall not suspend the execution of the Order of indirect contempt, unless a cash bond is posted in the amount equivalent to the fine.

B. Period to Resolve.  – The – The motion or petition, as the case may be, shall be resolved within a non-extendible period

The fine collected shall be deposited in a Trust Fund account specifically created for this purpose. (As

of fifteen (15) calendar days from receipt of the Verified Answer/Comment or upon the lapse of the period to submit the same.

amended by En Banc Resolution No. 14-17, Series of 2017)  -----------------------------------------------------------------------------

C. Punishment for Indirect Contempt.    –  –   The person adjudged guilty of indirect contempt may be pu nished: i. 

By a fine of One Thousand Pesos (P1,000.00) for every act of indirect contempt, if committed against the Commission or any member thereof; or,

ii. 

By a fine of Five Hundred Pesos (P500.00) for every act of indirect contempt, if committed against any Labor Arbiter.

iii. 

If the contempt consists of violation of an injunction or an omission to do an act which is within the power of the respondent to perform, the respondent shall, in addition, be made liable for damages as a consequence thereof. The damages shall be measured by the extent of the loss or injury sustained by the aggrieved party by reason of the acts or omissions of which the contempt is being prosecuted, and the costs of the proceedings, including payment of interest on damages.

iv. 

In the event that the contemptuous act constitutes a series of acts or a continued refusal/defiance to a lawful order, writ or decision, the fine shall be imposed for every contemptuous act or per day of continued refusal/defiance.

Injunction, same lang as the grounds sa Rules of Court so alam na natin ‘to. And yung TRO. ----------------------------------------------------------------------------RULE X INJUNCTION

SECTION 1. INJUNCTION IN ORDINARY LABOR DISPUTES.   –  –   A preliminary injunction or restraining order may be granted by the Commission through its Divisions pursuant to the provisions of paragraph (e) of Article 218 (now 225) of the Labor Code, as amended, when it is established on the of the sworn allegations in the petition thatlabor the actsbasis complained of involving or arising from any dispute before the Commission, which, if not restrained or performed forthwith, may cause grave or irreparable damage to any party or render ineffectual any decision in favor of such party. A certification of non-forum shopping shall accompany the petition for injunction. The writ of preliminary injunction or temporary restraining order shall become effective only upon posting of the required cash bond in the amount to be determined by the Commission to answer for any damage that may be suffered by the party enjoined, if it is finally determined that the petitioner is not entitled thereto.

SECTION 2. INJUNCTION IN STRIKES OR LOCKOUTS.  –  –   A preliminary or permanent injunction may be granted by

 

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Labor Relations the Commission only after hearing the testimony of witnesses and with opportunity for cross-examination in support of the allegations of the complaint or petition made under oath, and testimony by way of opposition thereto, if offered, and only after a finding of fact by the Commission:

SECTION 8. EFFECTIVITY OF TEMPORARY RESTRAINING – A temporary restraining order shall be effective ORDER.  – A for no longer than twenty (20) days reckoned from the posting of the cash bond required under the preceding Section. During the said period, the parties shall be required to present evidence to substantiate their respective positions in the main petition.

(a) That prohibited or unlawful acts have been threatened and will be committed and will be continued unless restrained, but no injunction or temporary restraining order shall be issued on account of any threat, prohibited or unlawful act, except against the person or persons, association or organization making the threat or committing the prohibited or unlawful act or actually authorizing or ratifying the same after actual knowledge thereof; (b) That substantial and irreparable injury to petitioner's property will follow; (c) That as to each item of relief to be granted, greater injury will be inflicted upon the petitioner by the denial of relief than will be inflicted upon respondents by the granting of relief; (d) That petitioner has no adequate remedy at law; and, (e) That the public officers charged with the duty to protect petitioner's property are unable or unwilling to furnish adequate protection. x x x

SECTION 6. TEMPORARY RESTRAINING ORDER;  –   If the petitioner shall also allege that, REQUISITES.   – unless a temporary restraining order shall be issued without notice, a substantial and irreparable injury to petitioner's property will be unavoidable, such a temporary restraining order may be issued upon testimony under oath, or by affidavits of the petitioner's witnesses, sufficient, if sustained, to justify the Commission in the issuance thereof.

SECTION 7. CASH BOND.   –  –   No temporary restraining order or writ of preliminary injunction shall be issued except on the condition that petitioner shall first file an undertaking to answer for the damages and post a cash bond in the amount of Fifty Thousand Pesos (P50,000.00), or such higher amount as may be determined by the Commission, to recompense those enjoined for any loss, expense or damage caused by the improvident or erroneous issuance of such order or injunction, including all reasonable costs, together with a reasonable attorney's and expense of injunctive defense against order or against fee, the granting of any relief the sought in the same proceeding and subsequently denied by the Commission.

----------------------------------------------------------------------------Execution of Proceedings. Take note of the lifetime of writ of execution. -----------------------------------------------------------------------------   RULE XI EXECUTION PROCEEDINGS

SECTION 7. ISSUANCE, CONTENTS AND EFFECTIVITY OF A WRIT OF EXECUTION.   –  – The  The writ of execution shall issue in the name of the Republic of the Philippines signed by the Commission or Labor Arbiter ordering the Sheriff to execute the decision, order, or award of the Commission or Labor Arbiter, and must contain the complete name of the party, whether natural or juridical, against whom the writ of execution was issued, the dispositive portion thereof, the amount, if any, to be demanded, and all legal fees to be collected from the losing party or any other person required by law to obey the same. A writ of execution shall be effective for a period of five (5) years from date of entry of judgment or issuance of certificate of finality. In case of partial satisfaction of  judgment during the lifetime of the writ, the Labor Arbiter shall motu proprio  issue an updated writ reflecting the amount collected and the remaining balance. (3a) (As amended by En Banc Resolution No. 11-12, Series of 2012)

-----------------------------------------------------------------------------   Third Party Claims. Read the case of Yupangco Cotton Mills  and the case of  Ando. Wag kayo mako-confuse kasi si  Ando  hindi naman niya talaga in-overturn yung decision ni Yupangco. Kay  Ando, mali yung action na finile niya sa Court. So prevailing pr evailing pa rin yung doctrine sa Yupangco Cotton Mills. Oh so when do you file third party claim and what is the effect on the execution proceedings. -----------------------------------------------------------------------------  

RULE XI EXECUTION PROCEEDINGS SECTION 14. THIRD PARTY CLAIM.  –  –   (a) If the property levied is claimed by any person other than the losing party, such person may file a third party claim not later than five (5) days from the last day of posting or publication of the notice of execution sale, otherwise the

 

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Labor Relations claim shall be forever barred. Such third party claim must comply with the following requirements: (1)

(2) (3)

An affidavit stating title tto o prope property rty or right to the possession thereof and the property’s fair market value with supporting evidence; Payment of prevailing filing fee; and, In ccase ase the subject matter of the third pa party rty cclaim laim is a real property, posting of a refundable cash deposit of Twenty Thousand Pesos (P20,000) for the payment of republication of notice of auction sale. (As amended by En Banc Resolution No. 1112, Series of 2012; En Banc Resolution No. 14-15, Series of 2015) 

If the third party claim is denied with finality, the bond shall be made answerable in lieu of the property subject of the third party claim. (12a) (As amended by En Banc Resolution No. 14-15, Series of 2015)  -----------------------------------------------------------------------------   Yung examination of losing party when judgment unsatisfied. Any person who defies the same may be cited in contempt.

-----------------------------------------------------------------------------   RULE XI EXECUTION PROCEEDINGS

(c) Effect of Filing and Posting of Bond.  –  –   The filing of a third party claim shall not suspend the execution proceedings with respect to the property subject of the

SECTION 19. EXAMINATION OF LOSING PARTY WHEN  JUDGMENT UNSATISFIED.  – When – When the return of a writ of execution issued against the property of a losing party shows that the judgment remains unsatisfied, in whole or in part, the prevailing party, at any time after such return is made, shall, upon motion, be entitled to an order from the handling Labor Arbiter who rendered the said  judgment, requiring such losing party to appear and be examined concerning his/her property and income before

third party claim, unless the third party claimant posts a cash or surety bond equivalent to the value of the levied property or judgment award, whichever is lower, and in accordance with Section 6 of Rule VI. The cash or surety bond shall be in lieu of the property subject of the third party claim.

such Labor Arbiter, at a specified time and place; and proceedings may thereupon be had for the application of the property and income of the losing party towards the satisfaction of the judgment.  (n) (En Banc Resolution No. 05-14, Series of 2014; En Banc Resolution No. 06-16, Series of 2016) 

The cash or surety bond shall be valid and effective from the date of deposit or posting, until the third party claim is finally decided, resolved or terminated. This condition shall be deemed incorporated in the terms and conditions of the surety bond, and shall be binding on the third party claimant and the bonding company.

SECTION 20. ENFORCEMENT OF ATTENDANCE AND  –   A party or other person CONDUCT OF EXAMINATION.  – may be compelled, by an order of subpoena, to attend before the Labor Arbiter to testify as provided in the preceding section (examination of losing party’s property/income), and upon failure to obey such order or subpoena or to be sworn and subscribe, or to answer as a witness, may be punished for contempt as in other cases

(b) Where Filed. – Filed.  – The  The third party claim shall be filed with the Commission or Labor Arbiter where the execution proceeding is pending, with proof of service of copies thereof to the Sheriff and the prevailing party.

The Labor Arbiter may require the posting of additional bond upon showing by the other party that the bond is insufficient. Upon approval of the bond, the Labor Arbiter shall issue an order releasing the levied property or a part thereof subject of the claim. (As amended by En Banc Resolution No. 14-15, Series of 2015)  (d) Proceedings.  –  –   The propriety of the third party claim shall be resolved within ten (10) working days from submission of the claim for resolution. The decision of the Labor Arbiter is not appealable but may be elevated to the Commission and resolved in accordance with Rule XII hereof.

in accordance with prolonged, Section 2 of IX. Examinations shall not be unduly butRule the proceedings may be adjourned from time to time, until the same are completed. All examinations and answers before the Labor Arbiter must be under oath, and when a corporation or other juridical entity answers, it must be on the oath of an authorized officer or agent thereof. (n) (En Banc Resolution No, 05-14, Series of 2014)

-----------------------------------------------------------------------------   Also the case of Guillermo v. Uson, if you can recall that, yung doctrine of piercing the veil, which is now incorporated in the rules, so there is no need to discuss the same. -----------------------------------------------------------------------------  

In the event that the resolution of the third party claim is elevated to the Commission, the release of the bond shall be suspended. Pending resolution thereof, execution shall proceed against all other properties not subject of the third party claim.

 

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Labor Relations RULE XI EXECUTION PROCEEDINGS SECTION 21. Piercing the Veil of Corporate Fiction.   –  –   (a) A prevailing party may file a verified motion to pierce the veil of corporate fiction during execution proceedings when the writ of execution could not be enforced or satisfied against the judgment debtor and there is evidence that: a.  b. 

c. 

The corporate fiction is used as a vehicle to evade payment or satisfaction of a judgment award; or That corporation is a mere alter ego or business conduit of a judgment debtor, or was organized to make it an instrumentality, agency or adjunct of another corporation which is a respondent in a labor case; and Such other analogous cases.

(b) The verified motion under this Section shall state the circumstances and ground/s relied upon that would warrant the piercing of the veil of corporate fiction of the subject corporation and be accompanied by a proof of service upon all parties to the case and the corporation sought to be pierced. (c) Proceedings.   –  –   Within five (5) calendar days from receipt of the motion, the losing party and the corporation sought to be pierced shall file their comment or opposition stating the grounds why the motion should be denied. Failure to do so shall be deemed as a waiver to file the same. A hearing shall be called within five (5) calendar days from the receipt of the comment/opposition or after the lapse of the period to file the same to determine the propriety of the motion. The motion shall be resolved within twenty (20) days from the date of last hearing. If the Labor Arbiter or the Commission finds that piercing of corporate veil is proper, a Writ of Execution shall be issued against the pierced corporation in order to satisfy the judgment award. (En Banc Resolution No. 14-17, Series of 2017)  

-----------------------------------------------------------------------------   Extraordinary remedies. Yung grounds niya na only if there is no appeal same ground sa certiorari yan di ba, plus naglagay lang sila ng FAME diyan, yung sa PRJ. Kaya pag nag-file ka ng PRJ sa baba, di na nila ie-entertain, ite-take note na lang nila, kasi andito na rin naman. Kung gusto mo ipa-modify or ipa-alter yung decision of the Labor Arb, then ito yung remedy na kelangan mo i-avail. -----------------------------------------------------------------------------  

RULE XII EXTRAORDINARY REMEDIES SECTION 1. VERIFIED PETITION.  –  –   A party aggrieved by any order or resolution of the Labor Arbiter, including a writ of execution and other orders issued during execution proceedings, may file a verified petition to annul or modify the same. The petition may be accompanied by an application for the issuance of a temporary restraining order and/or writ of preliminary or permanent injunction to enjoin the Labor Arbiter, or any person acting under his/her authority, to desist from enforcing said resolution, order or writ. (As amended by En Banc Resolution No. 07-14, Series of 2014; En Banc Resolution No. 01-17, Series of 2017) 

SECTION 2. GROUNDS.  – The – The petition filed under this Rule may be entertained only if there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law, and based on any of the following grounds: (a) If there is  prima facie evidence of abuse of discretion on the part of the Labor Arbiter; (b) If serious errors in the findings of facts are raised which, if not corrected, would cause grave or irreparable damage or injury to the petitioner; (c) If a party by fraud, accident, mistake or excusable negligence has been prevented from taking an appeal; (d) If made purely on questions of law; or, (e) If the order or resolution will cause injustice if not rectified. (As amended by En Banc Resolution No. 05-14, Series of 2014)  –   Not later than SECTION 3.  3.  WHEN AND WHERE FILED.  – ten (10) calendar days from receipt of the order or resolution of the Labor Arbiter, the aggrieved party may file a petition with the Commission furnishing a copy thereof to the adverse party. x x x – Upon filing SECTION 9. EFFECT OF FILING OF PETITION.   – Upon of the petition, the proceedings before the Labor Arbiter shall continue unless restrained. In case of execution, the proceedings in accordance with Rule XI of these Rules shall not be suspended, but no money collected or credit garnished may be released or personal properties levied upon be sold by public auction within fifteen (15) calendar days from the filing of the petition. If no temporary restraining order or writ of preliminary injunction is issued within the said period, the money collected or credit garnished shall be released and/or the properties levied upon sold by public auction and the proceeds of the sale applied, to satisfy the judgment.

 

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Labor Relations In case of execution proceedings, the Labor Arbiter shall immediately inform in writing the Commission or the Division where the petition is pending of the satisfaction of the judgment, and, if circumstances warrant, the Commission shall dismiss the petition for being moot. The records of the case shall not be elevated to the Commission unless otherwise ordered, in which case the

Reglementary period, 10 days. What is the effect, will it stop the execution proceedings? Di ba hindi, it is not suspended but no money collected or credit garnished may be released or personal properties levied upon be sold by public auction within 15 calendar days. Kaya pag nag-file ka niyan pwede ka mag-file ng petition for TRO or issuance of writ preliminary injunction. Yung TRO 20 days, yung preliminary injunction 60 days. Both nonextendible.

execution proceeding shall continue pursuant to the first paragraph hereof, with the Labor Arbiter retaining copies of documents relevant and necessary for this purpose. (As amended by En Banc Resolution No. 05-14, Series of 2014)

With respect to the Sheriff ’s Manual, ang kelangan niyo lang alalahanin dun yung functions of the sheriff, yung requirement for the conduct of auction sale. I don ’t think that will be asked in the bar, basta lang alam niyo, malay niyo sa inyo itanong.

In the event of filing of a subsequent petition under this Rule involving the same issues, the suspension of the release of money collected or credit garnished or the suspension of auction sale over properties levied upon under the first paragraph shall not apply. (As amended by En Banc Resolution No. 11-12, Series of 2012)  

SECTION 10. VERIFIED APPLICATION, ISSUANCE OF TEMPORARY RESTRAINING ORDER OR PRELIMINARY

With the case of Robosa v. NLRC , yun yung sa contempt. You don’’t need to comply with Rule 71 of the Rules of Court when don you want to file an action for indirect contempt. -----------------------------------------------------------------------------   Robosa v. NLRC

The NLRC (and the LAs) may hold any offending party in contempt, directly or indirectly, and impose appropriate  penalties in accordance with law. - Under Article 225

 –   Upon the filing of a verified INJUNCTION; BOND.   – application for injunctive relief, together with supporting affidavits and documents, the Commission may issue a writ of a preliminary injunction based on any of the applicable grounds provided for in Section 3, Rule 58 of the Rules of Court, as amended, for the preservation of the rights of the parties pending resolution of the petition. The writ of preliminary injunction shall be effective for a non-extendible period of sixty (60) calendar days from service on the private respondent.

(formerly Article 218) of the Labor Code, the NLRC (and the labor arbiters) may hold any offending party in contempt, directly or indirectly, and impose appropriate penalties in accordance with law. The penalty for direct contempt consists of either imprisonment or fine, the degree or amount depends on whether the contempt is against the Commission or the labor arbiter. The Labor Code, however, requires the labor arbiter or the Commission to deal with indirect contempt in the manner prescribed under Rule 71 of the Rules of Court.

If it shall appear from facts shown by the verified application and affidavits that great and irreparable damage and/or injury would result to the petitioner before the petition can be resolved, the Commission may

Rule 71 of the Rules of Court does not require the labor arbiter or the NLRC to initiate indirect contempt proceedings before the trial court. This mode is to be observed only when there is no law granting them contempt powers. As is clear under Article 225(d) of the Labor Code, the labor arbiter or

issue a temporary restraining order ex-parte effective for a non-extendible period of twenty (20) calendar days from service on the private respondent. In the issuance of a temporary restraining order or writ of preliminary injunction, the Commission shall require the posting of a cash bond in the amount of Fifty Thousand Pesos (P50,000.00), or such higher amount as may be determined by the Commission, to recompense those enjoined for any loss, expense or damage caused by the improvident or erroneous issuance of such order or injunction, including all reasonable costs. An additional cash bond may be required by the Commission in the issuance of a writ of preliminary injunction.

the Commission is empowered or has jurisdiction to hold the offending party or parties in direct or indirect contempt. The petitioners, therefore, have not improperly brought the indirect contempt charges against the respondents before the NLRC. -----------------------------------------------------------------------------  

Also read the case of Bergonio v. SEAIR, and the case of Garcia v. Philippine Airlines. When there is an order of reinstatement, the order of the Labor Arbiter is immediately executory. Pag may accrued wages magbabayad si respondent. However in this case nagbayad ba si respondent? Hindi di ba? Kasi under corporate rehabilitation siya.

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Labor Relations Bergonio v. SEAIR The employer is obliged to pay the dismissed employee’s salary if he refuses to reinstate until actual reinstatement or reversal by a higher tribunal. - An employer is obliged to immediately reinstate the employee upon the LA’s finding of illegal dismissal; if the employer fails, it is liable to pay the salary of the dismissed employee. Of course, it is

not always the case that the LA’s finding of illegal dismissal is, on appeal by the employer, upheld by the appellate court. After the LA’s decision is reversed by a higher tribunal, the employer’s duty to reinstate the dismissed employee is effectively terminated. This means that an employer is no longer obliged to keep the employee in the actual service or in the payroll. The employee, in turn, is not required to return the wages that he had received prior to the reversal of the LA’s decision. d ecision. 

 An employer who did not reinstate the employee during the pendency of the appeal up to the reversal may still be held liable for the accrued wages of the employee. - The reversal by a higher tribunal of the LA’s finding (of illegal dismissal), notwithstanding, an employer, who, despite the LA’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, i.e., the unpaid salary accruing up to the time the higher tribunal reverses the decision. The rule, therefore, is that an employee may still recover the accrued wages up to and despite the reversal by the higher tribunal. This entitlement of the employee to the accrued wages proceeds from the immediate and selfexecutory nature of the reinstatement aspect of the LA’s decision. By way of exception to the above rule, an employee may be barred from collecting the accrued wages if shown that the delay in enforcing the reinstatement pending appeal was without fault on the part of the employer. To determine whether an employee is thus barred, two tests must be satisfied: (1) actual delay or the fact that the order of reinstatement pending appeal was not executed prior to its reversal; and (2) the delay must not be due to the employer’s unjustified act or omission. Note that under the second test, the delay must be without the employer’s fault. 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. Under the facts and the surrounding circumstances, the delay was due to the acts of the respondents that we find were unjustified. We reiterate and emphasize, Article 223, paragraph 3, of the Labor Code mandates the employer to immediately reinstate the dismissed employee, either by actually reinstating him/her under the conditions prevailing prior to the dismissal or, at the option of the employer, in the payroll. The respondents’ failure in this case to exercise either option rendered them liable for the

petitioners’ accrued salary until the LA decision   was reversed by the CA on December 17, 2008. We, therefore, find that the NLRC, in affirming the release of the garnished amount, merely implemented the mandate of Article 223; it simply recognized as immediate and selfexecutory the reinstatement aspect of the LA’s decision.  Garcia v. PAL

Reinstatement pending appeal does not contemplate the Reinstatement  period when the employer-corporation itself is similarly in a judicially monitored state of being resuscitated in order to survive. -  It is settled that upon appointment by the SEC of a rehabilitation receiver, all actions for claims before any court, tribunal or board against the corporation shall ipso jure be suspended. As stated early on, during the pendency of petitioners’ complaint before the Labor Arbiter, the SEC placed respondent under an Interim Rehabilitation Receiver. After the Labor Arbiter rendered his decision, the SEC replaced the Interim Rehabilitation Receiver with a Permanent Rehabilitation Receiver. Case law recognizes that unless there is a restraining order, the implementation of the order of reinstatement is ministerial and mandatory. This injunction or suspension of claims by legislative fiat partakes of the nature of a restraining order that constitutes a legal  justification for respondent’s non non-compliance -compliance with the reinstatement order. Respondent’s failure to exercise the alternative options of actual reinstatement and payroll reinstatement was thus justified. Such being the case, respondent’s obligation to pay the salaries pending appeal, as the normal effect of the non-exercise of the options, did not attach. While reinstatement pending appeal aims to avert the continuing threat or danger to the survival or even the life of the dismissed employee and his family, it does not contemplate the period when the employer-corporation itself is similarly in a judicially monitored state of being resuscitated in order to survive. ---------------------------------------------------------------------------Seafarer’’s Protection Act. What are the acts penalized? Ano ba Seafarer yung ambulance chasing?

---------------------------------------------------------------------------RA10706, SECTION 3. Prohibition on Ambulance Chasing. — It shall be unlawful for any person to engage in ambulance chasing or the act of soliciting, personally or through an agent, from seafarers, or their heirs, the pursuit of any claim against them employers for the purpose of recovery of monetary claim or benefit, including legal interest, arising from accident, illness or death, in exchange of an amount or fee which shall be

 

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Labor Relations retained or deducted from the monetary claim or benefit granted to or awarded to the seafarers or their heirs. ---------------------------------------------------------------------------Sa ULP dapat alam niyo yung codal provisions by heart. ULP is any act which interferes with the employees’ employees ’  right to selforganization except for paragraph (f), yung testimony kahit anong testimony.

BUREAU OF LABOR RELATIONS 31.  Powers and functions of the BLR? The BLR shall: A. Set policies, standards, and procedures on the registration and supervision of legitimate labor union activities including denial, cancellation, and revocation of labor union permits (PSP-RS)  B. Set policies, standards, and procedures relating to collective bargaining agreements and the examination of financial records of accounts of labor organizations to determine compliance with relevant laws (PSP-CBA-EFR) C. Provide proper orientation to workers on their schemes and projects for improvement of the standards of living of workers and their families (S&P) 

32.  Differentiate an inter-union from an intra-union dispute Inter-union Intra-union (Representation (Represent ation dispute) (Internal union dispute) One occurring or carried on A conflict within or inside a between or among unions. It labor union. It may refer to refers to a case involving a any conflict between and officers and/or PCE filed by a duly registered among labor organization which is members of one particular seeking to be recognized as union, including grievances the SEBA of the rank-and-file employees of supervisory employees, as the case may be, in the appropriate bargaining unit of a company, firm or establishment.

(Chan Preweek 2019)

arising from any violation of the rights and conditions of membership, violation of or disagreement over any provision of the union’s constitution and by-laws, issues over control, supervision and management of its internal affairs or disputes arising from chartering or affiliation of a union.

33.  Montano v. Verceles The Bureau of Labor Relations and the Regional Directors of DOLE have concurrent jurisdiction over inter-union and intra-union disputes; Such disputes include the conduct or nullification of election of union and workers’ association officers.  - Section 226 of the Labor Code clearly provides that the BLR and the Regional Directors of DOLE have concurrent jurisdiction over inter-union and intra-union disputes. Such disputes include the conduct or nullification of election of union and workers’ workers’ association officers. There is, thus, no doubt as to the BLR’s jurisdiction over the instant dispute involving member-unions of a federation arising from disagreement over the provisions of the federation’s constitution and by-laws.

34.  Employees Employees Union of Bayer Phils. v. Bayer Phils  An intra-union dispute refers to any conflict between and among union members, including grievances arising from any violation of the rights and conditions of membership, violation of or disagreement over any provision of the union’s constitution and by -laws, -laws, or disputes arising from chartering or disaffiliation of the union.   - It is clear from Sections 1 and 2, Rule XI of DO40-03, s. 2003 of the DOLE that the issues raised by petitioners do not fall under any of the aforementioned circumstances constituting an intraunion dispute. More importantly, the petitioners do not seek a determination of whether it is the Facundo group (EUBP) or the Remigio group (REUBP) which is the true set of union officers. Instead, the issue raised pertained only to the validity of the acts of management in light of the fact that it still has an existing CBA with EUBP.

35.  Diokno v. Cacdac The BLR has the original and exclusive jurisdiction on all inter-union and intra-union conflicts . - This Court in Bautista v. Court of Appeals, interpreting Article 226 of the Labor Code, was explicit in declaring that the BLR has the original and exclusive jurisdiction on all inter-union and intra-union conflicts. We said that since Article 226 of the Labor Code has declared that the BLR shall have original and exclusive authority to act on all inter-union and intra-union conflicts, there should be no more doubt as to its  jurisdiction. As defined, an intra-union conflict would refer to a conflict within or inside a labor union, while an interunion controversy or dispute is one occurring or carried on between or among unions.

Before a party is allowed to seek the intervention of the court, it is a pre-condition that he should have availed of all the means of   administrative processes afforded him; Exceptions. - This Court is emphatic that “before a party is allowed to seek the intervention of the court, it is a precondition that he should have availed of all the means of administrative processes afforded him. Hence, if a remedy within the administrative machinery can still be resorted to by giving the administrative officer concerned every opportunity to decide on a matter that comes within his  jurisdiction when such remedy should be exhausted first

 

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Labor Relations before the court’s judicial ju dicial power can be sought. The premature invocation of court’s judicial intervention is fatal to one’s cause of action.” Verily, there are exceptions to the applicability of the doctrine. As aptly determined by the BLR Director, private respondents Daya, et al., were prejudiced by the disqualification order of the COMELEC. They endeavored to seek reconsideration, but the COMELEC failed to act thereon. The COMELEC was also found to have refused to receive their written protest. The foregoing facts sustain the finding that private respondents Daya, et al., were deprived of due process.

36.  What is the jurisdiction of the NCMB? Conciliation, mediation and voluntary arbitration functions over labor-management disputes are vested with the NCMB. 37.  What if the dispute involves an alien employee, hindi siya nag-obtain ng AEP? Is that subject to conciliationmediation? 38.  What is contract-bar rule 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 of the 60-day period immediately before the date of expiry of such five-year term of the CBA. (Article 265) Under this rule, the existence of the CBA bars the filing of a PCE. Once a CBA is duly registered and validly subsisting, no PCE or any other action should be entertained that may disturb the administration of the duly registered existing CBA. Neither party should terminate, nor modify such agreement during its lifetime. Inter-union electoral contests are therefore not allowed. (Chan)

The requisites for contract-bar rule are: A. It must contain substantial terms and conditions of employment sufficient to stabilize the bargaining relationship; B. It must signed by the parties; and C. The effective date and expiration date must be readily discernible on the face of the contract.

39.  What is the purpose of the contract bar rule? The reasons for this rule are as follows: A. Certification election may only be entertained within the 60-day freedom period. Any PCE filed before or after the 60day freedom period should be dismissed outright.

C. At the expiration of the 60-day freedom period, the employer should continue to recognize the majority status of the incumbent bargaining agent where no PCE challenging such majority status is filed by any other union. (Chan) 40.  Are there any exceptions?   The contract bar rule admits of several exceptions where a PCE may be validly filed: A. During the 60-day freedom period immediately prior to the expiry date of a CBA B. When the CBA is not registered with the BLR or any of the DOLE Regional Offices C. When the CBA, although registered, contains provisions lower than the standards fixed by law or illegal per se clauses D. When the documents supporting the CBA’s registration r egistration are falsified, fraudulent or tainted with misrepresentation E. When the CBA is not complete as it does not contain any of the mandatory provision which the law requires. Such kind of agreement cannot promote industrial peace as it leaves out matters which the parties should sh ould have stipulated. F. When the CBA was extended during its term as when it was negotiated and entered into prior to the 60-day freedom period. The agreement in this case is deemed hastily entered into in order to frustrate the will of the employees in choosing their bargaining representative repr esentative G. When there is a schism in the union resulting in an industrial dispute wherein the CBA can no longer foster industrial peace. The conduct of a certification election in such a situation becomes inoperative to clear any doubt as to the real and legitimate representative of the employees. H. When there is an automatic renewal provision in the CBA but prior to the date when such automatic renewal became effective, the employer seasonably filed a manifestation with the BLR of its intention to terminate the said agreement if and when it is established that the SEBA does not represent anymore the majority of the workers in the bargaining unit.

B. Where there exists a CBA, it is the duty of both parties to

I. When the CBA does not foster industrial stability anymore, such as where the identity of the representative is in doubt since the employer extended direct recognition to the union and concluded a CBA therewith less than one (1) year from the time a certification election was conducted where the

keep the status quo and toofcontinue in full force andduring effect the terms and conditions the existing agreement the 60-day freedom period and/or until a new agreement is reached upon by the parties

“no   union” “no won. Any stability derived from such contract mustvote be subordinated to the employees’ freedom of choice because it does not establish the kind of industrial peace contemplated by law. Such situation obtains in a case

 

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Labor Relations when its status as exclusive bargaining agent of the employees has not been established yet. J. Where the nature of the operation substantially changes between the execution of the CBA and the filing of the PCE. Such changes include (i) merger or consolidation of two or more operations creating a new operation with major personnel changes and (ii) a resumption of operations after an indefinite period of closing, with new employees. However, a change in the number of employees due to a relocation does not affect a contract bar rule K. Where a CBA is executed before any employees are hired.

41.  What if naregister si CBA kaso walang Grievance Machinery? Will the contract bar rule apply? No. The Contract bar rule applies only to the representation aspect of the CBA and is not applicable to economic or noneconomic provisions of the CBA.

LABOR ORGANIZATIONS ORGANIZATIONS 42.  Can you discuss the employees’ right to self -organization? -organization? Article 253 of the Labor Code provides 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 protection. The right of self-organization includes the right (1) to organize or affiliate with a labor union or determine which of two or more unions in an establishment to join, and (2) to engage in concerted activities with co-workers for purposes of collective bargaining through representatives of their own choosing, or for their mutual aid and protection, i.e., the protection, promotion or enhancement of their rights and interests. (Chan 2019)

Atty. G:  If you are asked in the bar to discuss the right to selforganization, you have to explain the purpose. 43.  So what is the purpose of the right to self-organization? The right to form, join or assist a union is specifically protected by the Constitution and such right shall not be abridged. Article 257 empathically restates the policy of the State to promote and emphasize the primacy of free collective bargaining and negotiations, free trade unionism, and and voluntary of a strong and united laborfree movement. (Chan organization 2019) 

44.  Is it available to all employees regardless of rank? No, only rank-and-file employees are eligible to join any labor organization. Supervisory employees, on the other hand, may form, assist, and join a labor organization of their own and not with the rank-and-file employees. Article 255 of the Labor Code provides that managerial employees are not eligible to join, assist or form any labor organization. Supervisory employees shall not be eligible for membership in the collective bargaining unit of the rankand-file employees but may join, assist or form separate collective bargaining units and/or legitimate labor organizations of their own. The rank and file union and the supervisors' union operating within the same establishment may join the same federation or national union.

45.  Who are rank-and-file employees? All employees not falling within any of the definitions of managerial and supervisory employee. 46.  Who are supervisory employees? Those who, in the interest of the employer, effectively recommend such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment

47.  Cathay Pacific Steel Corp. v. Court of Appeals Managerial employees are not subjected to the rigid observance of regular office hours or maximum hours of work. - In the Decision of the Court of Appeals dated 28 October 2003, it made reference to the Memorandum dated 12 September 1996, which required private respondent Tamondong to observe fixed daily working hours from 8:00 am to 12:00 noon and from 1:00 pm to 5:00 pm. This imposition upon private respondent Tamondong, according to the Court of Appeals, is very uncharacteristic of a managerial employee. To support such a conclusion, the Court of Appeals cited the case of Engineering Equipment, Inc. v. NLRC , where this Court held that one of the essential characteristics of an employee holding a managerial rank is that he is not subjected to the rigid observance of regular office hours or maximum hours of work.

Accordingly, Article 212(m) of the Labor Code, as amended, differentiates supervisory employees from managerial employees, to wit: supervisory employees are those who, in the interest of the employer, effectively recommend such managerial actions, if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment; whereas, managerial employees are those who are vested with powers or prerogatives to lay down and execute management policies and/or hire, transfer, suspend, lay off, recall, discharge, assign or discipline employees. Thus, from the foregoing provision of the Labor Code, it can be clearly inferred that private respondent Tamondong was  just a supervisory employee. Private respondent

 

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Labor Relations Tamondong did not perform any of the functions of a managerial employee as stated in the definition given to it by the Code. Hence, the Labor Code provisions regarding disqualification of a managerial employee from joining, assisting or forming any labor organization does not apply to herein private respondent Tamondong. Being a supervisory employee of CAPASCO, he cannot be prohibited from joining or participating in the union activities of private respondent

50.  X is the head of the accounting department of Company Y. He has 5 subordinates and he is required to work from 8am-5pm Mon-Fri. His tasks include overseeing the performance of 5 subordinates, collating the reports of 5 subordinates and submitting them to the company. Is he a managerial or supervisory employee? He is only supervisory.

CUSE, and in making such a conclusion, the Court of Appeals did not act whimsically, capriciously or in a despotic manner, rather, it was guided by the evidence submitted before it. Thus, given the foregoing findings of the Court of Appeals that private respondent is a supervisory employee, it is indeed an unfair labor practice on the part of petitioner CAPASCO to dismiss him on account of his union activities, thereby curtailing his constitutionally guaranteed right to self-organization. 

The case of Cathay Pacific Steel Corporation v. CA  instructs that among the characteristics of the managerial rank is that he is not subject to the rigid observance of regular office hours. Moreover, supervisors direct the operation of employees only and do not supervise other managers. Here, X oversees the work of his five subordinates only.

48.  Who is a managerial employ employee? ee? Those who are 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 The characteristics of a managerial employee are: (PDA)   A. Primary duty consists of management of the establishment in which they are employed, or a department or subdivision thereof. B. Customarily and regularly direct work of two or more employees therein C. Authority to hire or fire other employees of lower rank or their suggestions and recommendations as to hiring, firing, or promotion are given weight

49.  How do we distinguish a supervisory employee from a managerial employee? Supervisory employee Those who, in the interest of the employer, effectively recommend such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment

Managerial Employee Those who are 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

51.  Why are managerial employees absolutely prohibited? Managerial employees are the alter ego of the employers and thus they are supposed to be on the side of the employer to act as its representatives, and to see to it that its interests are well-protected. The employer is not assured of such protection if these employees are union members. 52.  Aside from managerial employees, who are prohibited from joining? A. Employees of international organizations with immunities B. Members of the AFP, including police officers, policemen, firemen and jail guards C. Managerial employees D. Confidential employees whose positions are linked to labor relations matters E. High-level or managerial government employees F. Aliens without valid working permits or aliens with valid working permits but are nationals of a country which do not allow Filipinos to exercise the right to self-organization and to join or assist labor organizations G. Non-employees H. Government employees, including those employed in GOCCs with original charters I. Employees of cooperatives who are at the same time of its members J. Subversives or those directly or indirectly engaged in subversive activities

53.  Who are confidential employees? A. who assist and act inand a confidential AND B. Those Formulate, determine effectuatecapacity management policies specifically in the field of labor relations .

 

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Labor Relations The two criteria must be met if an employee is to be considered a confidential employee that would deprive him of his right to form, join, or assist a labor organization. (Chan 2019) In the case of Coca-Cola Bottlers, Inc. v. Ilocos Professional and Technical Employees Union, the Court held that access to vital labor information is the imperative consideration of a confidential employee.

54.  Can you give me an example of a confidential employee? Explain why he is considered a confidential employ employee. ee. Based on jurisprudence, the following are considered confidential employees under the confidential employee rule: A. Accounting personnel and radio and telegraph operators (Golden Farms, Inc. v. Ferrer-Calleja) B. Division secretaries, all Staff of General Management, Personnel and Industrial Relations Department, Secretaries of Audit, EDP and Financial Systems (Philips Industries Development, Inc. v. NLRC)

confidential information related to labor relations, kahit wala siyang duty to take care of the property of the company, prohibited pa rin siya to join a labor organization.

56.  What would happen now if we have only 10 supervisory employees employe es and they joined the RNF union of the company. Will it be a ground for the cancellation of the registration? Under the Implementing Rules of the Labor Code, mixed membership is now deemed a prohibited ground for the cancellation of union registration. (Chan 2019)

57.  So ano yung effect? Iko-consider ba natin siyang kasama ng mga rnf sa union? In the case of SMCC-Super v. Charter Chemical and Coating Corporation, the Court held that the inclusion of the supervisory employees in a rank-and-file union does not divest it of its status s tatus as a legitimate labor organization. As is now provided under Article 256, any excluded members are automatically deemed removed by operation of law from the list of legitimate members of the union concerned. Thus, if supervisory employees are included as members of a rank-and-file union, they are deemed automatically removed from the roster of members of said union and vice versa. (Chan 2019)

C. Legal secretaries who are tasked with, among others, the typing of legal documents, memoranda and correspondence, the keeping of records and files, the giving of and receiving of notices, and such other duties as required by the legal personnel of the corporation (Pier 8  Arrastre & Stevedoring Services, Inc. v. Roldan-Confesor)

58.  Can an employee be compelled to join a union? An employee has the right to join or not to join a labor union. A member of a labor union may leave and cancel his membership at any time. (Chan 2019)

D. Executive secretaries of the General Manager, and the executive secretaries of the Quality Assurance Manager, Product Development Manager, Finance Director, Management System Manager, Human Resources Manager, Marketing Director, Engineering Manager, Materials Manager and Production Manager were also considered confidentiall employees since they have access to “vital labor confidentia

59.  VIctoriano v. Elizalde  An employee has the right to join or not join a labor union.   - What the Constitution and the Industrial Peace Act recognize and guarantee is the “right” to form or join associations. Notwithstanding the different theories propounded by the different schools of jurisprudence regarding the nature and contents of a “right”, it can be

information” (Metrolab Industries v. Roldan-Confesor)

55.  Why are they proscribed from joining any labor organization? The doctrine of necessary implication is the legal basis for the ineligibility of a confidential employee to join a union. While Article 255 of the Labor Code limits the ineligibility to  join, assist, or form a labor organization to managerial employees, jurisprudence has extended this prohibition 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 therefore, are privy to sensitive and highly confidential records. (Chan 2019) Atty. G: Yung managerial, they are prohibited because they act in behalf or for the interests of the employer. Eh yung confidential? Because of the information that they possess. poss ess. Mere care or custody of the property of the employer is not sufficient. Refer to Article 297 of the Labor Code. Dapat may access sa

safely said thatatwhatever theory onenotions, subscribes to, a right comprehends least two broad namely: first, liberty or freedom, i.e., the absence of legal restraint, whereby an employee may act for himself without being prevented by law; and second, power, whereby an employee may, as he pleases, join or refrain from joining an association. It is, therefore, the employee who should decide for himself whether he should join or not an association; and should he choose to join, he himself makes up his mind as to which association he would join; and even after he has joined, he still retains the liberty and the power to leave and cancel his membership with said organization at any time. It is clear, therefore, that the right to join a union includes the right to abstain from joining any union. Inasmuch as what both the Constitution and the Industrial Peace Act have recognized, and guaranteed to the employee, is the “right” to join associations of his choice, it would be absurd to say that the law also imposes, in the same breath, upon the employee the duty to join

 

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Labor Relations associations. The law does not enjoin an employee to sign up with any association.

60.  May an alien employee join a labor organization? For an alien employee to exercise his right to self-organize, the following requisites should be complied with: A. He should have a valid working permit issued by the DOLE B. He is a national of a country which grants the same or similar rights to Filipino workers or which has ratified either ILO Convention No. 87 or ILO Convention No. 98 as certified by the Philippine DFA

61.  What about the security guards? Why? Section 6 of DO150-16 provides that all security guards and other private security personnel, whether deployed or assigned as reliever, seasonal, week-ender or temporary shall be entitled to all rights and privileges as provided for in the Labor Code, as amended, which shall include the right to self-organization and collective bargaining, subject to the provisions of existing laws. 62.  What is a labor organization? A labor organization is any union or association of employees which exists in whole or in part for the purpose of collective bargaining with employers concerning terms and conditions of employment. It is created for mutual aid, interest, cooperation, protection or other lawful purposes. (Chan 2019)

63.  How is that different from a legitimate labor organization? Labor organization Legitimate Legitimate labor organization Any union or association of Any labor organization in the employees which exists in private sector registered or whole or in part for the reported with the DOLE, in purpose of collective accordance with the Labor bargaining with employers Code and its implementing concerning terms and conditions of employment. It is created for mutual aid, interest, cooperation, protection or other lawful purposes.

rules.

64.  What are the rights and privileges of a legitimate labor organization? Article 251 of the Labor Code provides that a legitimate labor organization shall have the right: (a) To act as the representative of its members for the purpose of collective bargaining;

(b) To be certified as the exclusive representative of all the employees in an appropriate bargaining unit for purposes of collective bargaining;

(c) To be furnished by the employer, upon written request, with its annual audited financial statements, including the balance sheet and the profit and loss statement, within thirty (30) calendar days from the date of receipt of the request, after the union has been duly recognized by the employer or certified as the sole and exclusive bargaining representative of the employees in the bargaining unit, or within sixty (60) calendar days before the expiration of the existing collective bargaining agreement, or during the collective bargaining negotiation; (d) To own property, real or personal, for the use and benefit of the labor organization and its members; (e) To sue and be sued in its registered name; and (f) To undertake all other activities designed to benefit the organization and its members, including cooperative, housing, welfare and other projects not contrary to law. Notwithstanding any provision of a general or special law to the contrary, the income and the properties of legitimate labor organizations, including grants, endowments, gifts, donations and contributions they may receive from fraternal and similar organizations, local or foreign, which are actually, directly and exclusively used for their lawful purposes, shall be free from taxes, duties and other assessments. The exemptions provided herein may be withdrawn only by a special law expressly repealing this provision.

Atty. G: Kelan naeenjoy yang rights na yan? Upon submission of requirements ba or kelangan pa ba mag-issue ni BLR ng certificate sakanya? 65.  Can the employer recognize an unregistered labor organization? Yes but said labor organization cannot be the bargaining representative.

66.  Can an unregistered labor organization demand to bargain collectively? No. an unregistered labor organization cannot be the SEBA of all the employees in a bargaining unit and cannot demand to bargain collectively. An exclusive bargaining representative is defined as a legitimate labor union  duly recognized or certified as the sole and exclusive bargaining representative or agent of all the employees in a bargaining unit.

67.  What is the duty to bargain collectively? Article 263 of the Labor Code provides that the duty to bargain collectively means the promptly performance of a mutual obligation to meet and convene and expeditiously in good faith for the purpose of negotiating an   agreement with respect to wages, hours of work and all other terms and conditions  of employment including proposals for

 

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Labor Relations adjusting any grievances or questions arising  under such agreement and executing a contract incorporating such agreements if   requested by either party but such duty does not compel any party to agree to a   proposal or to make any concession. Article 264 of the Labor Code, on the other hand, defines the duty to bargain collectively when there exists a collective bargaining agreement. It provides that when there is a collective bargaining agreement, the duty to bargain collectively shall also mean 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 sixty (60) days prior to its expiration date. It shall be the duty of both parties to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60-day period and/or until a new agreement is reached by the parties.

68.  Equity of the incumbent rule Article 249 of the Labor Code provides that all existing federations and national unions which meet the qualifications of a legitimate labor organization and none of the grounds for cancellation shall continue to maintain their existing affiliates regardless of the nature of the industry and the location of the affiliates.   69.  How about government employees? Can they join a labor organization?  GR: All government employees can form, join or assist employees’ organizations organizations of their own choosing for the furtherance and protection of their interests. They can also form labor management committees, work councils and other forms of workers’ participation schemes to achieve the same objectives.

EXC:  A. High-level employees whose functions are normally considered as policy-making or managerial and whose duties are of a highly confidential nature

72.  Union Y filed an application for union registration with the RD who has jurisdiction over the principal place of business of the employer but his application was denied. What is the union’s remedy?  The union’s remedy is to file an appeal with appeal  with the BLR within 10 calendar days from receipt of such decision on grounds of (1) grave abuse of discretion and (2) violations of IRR of the Labor Code 73.  Do you need to file a motion for reconsideration? No 74.  Where do you appeal? Article 243 of the Labor Code provides that the decision of the Labor Relations Division in the regional office denying registration may be appealed by the applicant union to the Bureau within ten (10) days from receipt of notice thereof.   75.  What are the grounds for cancellation? Article 247 of the Labor Code provides that 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.

76.  S.S. Ventures International Inc. v. S.S. Ventures Labor Union To decertify a union, it is not enough to show that the

71.  What if it maintains 2 offices: one in Laguna where the

union includes ineligible employees in its membership –   it must also be shown that there was misrepresentation,  false statement, or fraud in connection with the application for registration and the supporting documents, such as the adoption or ratification of the constitution and by-laws or the amendments thereto.  - The right to form,  join, or assist a union is specifically protected by Art. XIII, Section 3 of the Constitution and such right, according to Art. III, Sec. 8 of the Constitution and Art. 246 of the Labor Code, shall not be abridged. Once registered with the DOLE, a union is considered a legitimate labor organization endowed with the right and privileges granted by law to such organization. While a certificate of registration confers a union with legitimacy with the concomitant right to participate in or ask for certification election in a bargaining

plant is located and one in Manila which handles the administrative affairs, paperworks, payrolls, documentation requirements? And most of the employees live in San Miguel, Manila? It shall be filed with the BLR.

unit, the registration may be unit, canceled or the union may be decertified as the bargaining in which case the union is divested of the status of a legitimate labor organization. Among the grounds for cancellation is the commission of any of the acts enumerated in Art. 239(a) of the Labor Code,

B. Members of the AFP including police officers, policemen, firemen, and jail guards.

70.  We have X company which is located in Laguna. They have a group of employees who want to form an organization. Where will the union file an application for registration if the plant is in Laguna? It shall be filed with the regional office in Laguna where the applicant union principally operates.

 

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Labor Relations such as fraud and misrepresentation in connection with the adoption or ratification of the union’s constitution and like documents. The Court, has in previous cases, said that to decertify a union, it is not enough to show that the union includes ineligible employees in its membership. It must also be shown that there was misrepresentation, false statement, or fraud in connection with the application for registration and the supporting documents, such as the

C. Trade Union Center – Center  – group  group of registered national unions or federations organized for the mutual aid and protection of its members and for assisting such members in collective bargaining or for participating in the formulation of social and employment policies, standards, and programs duly registered with the DOLE

adoption or ratification of the constitution and by-laws or amendments thereto and the minutes of ratification of the constitution or by-laws, among other documents.

industry or in a conglomerate, a group of franchisees, a geographical area or an industrial center

Employees’ withdrawal from a labor union made before the filing of the PCE is presumed voluntary, while withdrawal after the filing of such petition is considered to be involuntary and does not affect the same.   - As aptly noted by both the BLR and CA, these mostly undated written statements submitted by Ventures on March 20, 2001, or seven months after it filed its petition for cancellation of registration, partake of the nature of withdrawal of union membership executed after the Union’s filing of a petition for certification election on March 21, 2000. We have in precedent cases said said that the employees’

withdrawal from a labor union made before the filing of the petition for certification election is presumed voluntary, while withdrawal after the filing of such petition is considered to be involuntary and does not affect the same. Now then, if a 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? Upon this light, the Court is inclined to agree with the CA that the BLR did not abuse its discretion nor gravely err when it concluded that the affidavits of retraction of the 82 members had no evidentiary weight.

D. Alliance  –  –   aggregation of unions existing in one line of

E. Company Union – Union  – a  a labor organization which, in whole or in part, is employer-controlled or employer-dominated.

79.  What is an independent union? Any labor organization operating at the enterprise level whose legal personality is derived through an independent action for registration with the BLR or DOLE. It may be affiliated with a federation, national or industry union, in which case it may also be referred to as an affiliate. 80.  What is a workers’ association? An association of workers organized for the mutual aid and protection of its members or for any legitimate purpose other than collective bargaining.

81.  How is a workers’ association different from a union?   Workers’ association  Union An association of workers Any labor organization in the organized for the mutual aid private sector organized for and protection of its collective bargaining and for members or for any other legitimate purposes. legitimate purpose other than collective bargaining.

77.  Substitutionary doctrine Where there occurs a shift in the employees’ union

82.  Can government employees form or join a labor organization?

allegiance after the execution of a CBA with the employer, the employees can change their agent (the labor union); but the collective bargaining contract which is still subsisting continues to bind the employees up to its expiration date. They may, however, bargain for the shortening of said expiration date.

GR: All government employees can form, join or assist employees’ organizations of their  their   own choosing for the furtherance and protection of their interests. They can also form labor management committees, work councils and other forms of workers’ participation schemes to achieve the same objectives.

78.  What are the different types of labor organizations that employeess can form? employee A. National Union/Federation – Union/Federation  – any  any labor organization with at least 10 locals/chapters each of which must be a duly certified or recognized collective bargaining agent

EXC:  A. High-level employees whose functions are normally considered as policy-making or managerial and whose duties are of a highly confidential nature 

B. Industry Union  –  – group  group of legitimate labor organizations within an identified industry organized for collective bargaining or for dealing with employer concerning the terms and conditions of employment within an identified industry or for participating in the formulation of social and employment policies, standards, and programs in such industry registered with DOLE

B. Members of the AFP including police officers, policemen, firemen, and jail guards.

Atty. G:  Yes, they can form or join a labor organization. Di ba yung labor organization generic term yan ng group ng mga employees. Ang di lang sila pwede mag-form, UNION. Kasi they cannot bargain collectively with the government kasi di ba yung mga benefits ng government granted by law. But they can form a MONES, 4D 1920

 

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Labor Relations workers’ association so they can negotiate with the employer but they cannot bargain collectively. Probably ang inenegotiate nila yung flexitime, other benefits like daycare d aycare centers.

83.  When will the union acquire legal personality? Article 240 of the Labor Code provides that 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:

Atty. G:  Upon issuance of chapter certificate, pero only for the purpose of filing PCE. 85.  What is affiliation? It is the relationship of an independently registered union with a federation or national union. 86.  What is the purpose of affiliation? The purpose of affiliation is to further strengthen the collective bargaining leverage of the affiliate. No doubt, the purpose of affiliation by a local union with a mother union is to increase by collective action its bargaining power in respect of the terms and conditions of labor. (Chan 2019)

(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.

84.  What about the chapter? When will it acquire legal personality? Article 241 of the Labor Code provides that 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.

87.  What is the nature of the relationship between the federation and the union? In relation to an affiliate, the federation or national union is commonly known as the “mother union.” The mother union, acting for and in behalf of its affiliate, has the status of an agent while the affiliate remains the principal  –  –   the basic unit of the association free to serve the common interest of all its members, subject only to the restraints imposed by the constitution and by-laws of the association. asso ciation. (Chan 2019) 88.  Can the federation represent the union in a PCE? Yes. A PCE may be filed by any legitimate labor organization, including a national union or federation that has issued a charter certificate to its local chapter/chartered local. The former is filing the PCE for and on behalf of the latter. (Chan 2019) 89.  Can the federation represent the union in CBA negotiations? Yes, the federation may represent the union in CBA negotiations. However, if it was the federation which negotiated all the CBAs in the establishment, the local chapter cannot negotiate the renewal of the CBA without the consent and participation of the federation. (Chan 2019) 90.  Can the union disaffiliate anytime from the federation? As a general rule, a labor union may disaffiliate from the mother union to form an independent union only during the 60-day freedom period prior to the expiration of the existsing CBA. It is not, however, legally impossible to effect the disaffiliation prior to the freedom period, provided that the same is approved by the majority of the members of the bargaining unit. Under this situation, the CBA continues to bind the members of the new or disaffiliated and independent union up to the expiration thereof. (Chan 2019) 91.  What would be the effect if we have a local chapter who disaffiliated. Local chapter failed to register independently as an independent union. What will happen to the existing CBA? Disaffiliation does not affect the CBA. It does not operate to amend it or change the administration of the contract. (Chan 2019)

 

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Labor Relations

92.  What is a check-off? Check-off means a method of deducting by the employer from the employee’s pay at prescribed periods, any amount due for fees, fines or assessments. Strictly speaking, checkoff is a process or device whereby the employer, on agreement with the union certified as SEBA, or on prior authorization from its employees, deducts union dues or agency fees from the latter’s wages and remits r emits them directly to the union. (Chan 2019)

93.  Distinguish check-off from an agency fee Check-off Agency Fee Method of deducting by the Dues equivalent to union employer from the dues, charged from the nonemployee’s pay at union members who are prescribed periods, any benefited by or under the amount due for fees, fines CBA. or assessments 94.  Does check-off require written authorization from the union member? Collection of union dues, Agency fees special assessments and fees Collected by SEBA from its members

Requires for its validity the execution by the employees of individual written authorization which should specifically state the amount, purpose and beneficiary of the deduction (Chan 2019)

C. Individual written authorizations for check-off duly signed by the employees concerned. The law strictly prohibits the check-off from any amount due an employee who is a member of the union, of any union dues, special assessment, attorney’s fees, negotiation fees or any other extraordinary fees other than for mandatory activities under the Labor Code, without the individual written authorization duly signed by the employee. Such authorization must specifically state the amount, purpose and beneficiary of the deduction. The purpose of the individual written authorization is to protect the employees from unwarranted practices that diminish their compensation without their knowledge or consent. (Chan 2019)

96.  Rights and conditions of membership Article 250 of the Labor Code provides that the following are the rights and conditions of membership in a labor organization: (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;

From non-members of SEBA but covered by and included in the CBU who accept the benefits provided in the CBA Does not require any authorization since the law itself recognizes and allows it upon the non-SEBA member’s acceptance of benefits resulting from the CBA.

95.  Let’s say the member of the union wanted to have a union outing. Union has insufficient funds for said outing so they wanted to ask for contributions from the individual members of the union. Let us assume that majority of the union agreed to contribute a fixed sum of money to finance the union outing. What are the requirements, if any? Do you need the individual written authorization of the union members? Yes. The following requisites must concur in order for union dues and special assessments for the union’s incidental expenses to be valid: A. Authorization by a written resolution of the majority of all the members at a general membership meeting duly called for the purpose B. Secretary’s record of the minutes of said meeting  meeting  

(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; (c) The members shall directly elect their officers in the local union, as well as their national officers in the national union or federation to which they or their local union is affiliated, by secret ballot at intervals of five (5) years. No qualification requirement 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; (d) The members shall determine by secret ballot, after due deliberation, any question of major policy affecting the entire membership of the organization, unless the nature of the organization or force majeure renders such secret ballot impractical, in which case, the board of directors of the organization may make the decision in behalf of the general membership;

(e) No labor organization shall knowingly admit as members or continue in membership any individual who belongs to a subversive organization or who is engaged directly or indirectly in any subversive activity;

 

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Labor Relations (f) No person who has been convicted of a crime involving moral turpitude shall be eligible for election as a union officer or for appointment to any position in the union; (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; by -laws;

(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 right to selforganization; (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;

UNFAIR LABOR PRACTICE 97.  What is ULP? Article 258 of the Labor Code provides that unfair labor practices violate the constitutional right of workers and employees to self-organization, are inimical to the legitimate interests of both labor and management, including their right to bargain collectively and otherwise deal with each other in an atmosphere of freedom and mutual respect, disrupt industrial peace and hinder the promotion of healthy and stable labor-management relations. Consequently, unfair labor practices are not only violations of the civil rights of both labor and management but are also criminal offenses against the State which shall be subject to prosecution and punishment as herein provided. The case of General Santos Coca-Cola Plant Free Workers Union-Tupas v. Coca-Cola Bottlers, Philippines, Inc. provides that unfair labor practice refers to “acts that violate the workers’ right to organize.” The prohibited acts are related to the workers’ right to self -organization -organization and to the observance of a CBA. Without that element, the acts, even if unfair, are not unfair labor practices.

98.  What are the elements of ULP? Before an employer or labor organization may be said to

(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 nonunion members accept the benefits under the collective bargaining agreement: Provided, That the individual authorization required under Article 250, paragraph (o) of this Code shall not apply to the non-members of tthe he 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

have committed ULP, the following elements must concur:

collective bargaining or any other dispute; or

A. There should exist an employer-employee relationship between the offended party and the offender

(i) To violate a collective bargaining agreement.

B. The act complained of must be expressly mentioned and defined in the Labor Code as a ULP. (Chan 2019)

99.  What are the acts enumerated under Article 259 and 260 of the Labor Code? Article 259 of the Labor Code provides that it shall be unlawful for an employer to commit any of the following unfair labor practices:

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. Article 260 of the Labor Code provides that it shall be unfair labor practice for a labor organization, its officers, agents or representatives:

(a) To interfere with, restrain or coerce employees in the

(a) To restrain or coerce employees in the exercise of their

exercise of their right to self-organization;

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 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;

 

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Labor Relations (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;

Can ULP cases be subject of a compromise agreement? Oh ang sagot natin diyan yung nature. Pwede ba siya i-compromise? Hindi, hindi siya pwede.

(c) To violate the duty, or refuse to bargain collectively with the employer, provided it is the representative of the employees;

right to organize”— organize”—the the prohibited acts are related to the workers’ right to self -organization -organization and to the observance of a Collective Bargaining Agreement (CBA). (General Santos Coca-Cola Plant Free Workers Union-TUPAS v. Coca-Cola Bottlers, Philippines, Inc.)

(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. ULP,  you Atty. G: Just a few things. When you’re asked what is ULP, you  just give the definition – definition – so  so any unfair labor practice enumerated in Articles 259 and 260 of the Labor Code. Yung minemention natin na first two paragraphs ng Article 258 of the Labor Code, nature or concept yan ng ULP. So pag tinanong ang concept yan ang isasagot niyo. Are the enumerations found in Articles 259 and 260 exclusive? Di ba hindi naman? We have union-busting and Article 278 (c) and we have gross violation of the CBA also. As for the aspects, di ba meron tayong civil and criminal aspects. What about the prescriptive period? Di ba one year from the accrual of cause of action? Now what will happen if we institute the admin action, it will suspend the prescriptive period with respect to the criminal action kasi di ba ang requirement para magprosecute ka for unfair labor practice, there should first be a finding first that the person or entity is guilty of ULP. Will the decision of LA be binding on the criminal case? Hindi di ba? For the purpose of the compliance lang. Pero in order that a person may be found guilty of ULP, they should meet the quantum of proof needed di ba  –  –   proof beyond reasonable doubt. So is it necessary that the evidence appreciated in the admin case be appreciated in the same way in the criminal aspect?

Favorite ko yung Article 259 and 260.

100.  What What is ULP Unfair labor practice refers to “acts that violate the workers’

101.  Standard Standard Chartered Bank Employees Union (NUBE) v. Confesor Interference, restraints or coercion of employees by the employer in the exercise of their right to self-organization or the right to form association considered unfair labor  practice. - Article 248(a) of the Labor Code, considers it an unfair labor practice when an employer interferes, restrains or coerces employees in the exercise of their right to selforganization or the right to form association. The right to self-organization necessarily includes the right to collective bargaining. Parenthetically, if an employer interferes in the selection of its negotiators or coerces the Union to exclude from its panel of negotiators a representative of the Union, and if it can be inferred that the employer adopted the said act to yield adverse effects on the free exercise to right to selforganization or on the right to collective bargaining of the employees, ULP under Article 248(a) in connection with Article 243 of the Labor Code is committed. In order to show that the employer committed ULP under the Labor Code, substantial evidence is required to support the claim. Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. In the case at bar, the Union bases its claim of interference on the alleged suggestions of Diokno to exclude Umali from the Union’s negotiating panel. The circumstances that occurred during the negotiation do not show that the suggestion made by Diokno to Divinagracia is an anti-union conduct from which it can be inferred that the Bank consciously adopted such act to yield adverse effects on the free exercise of the right to selforganization and collective bargaining of the employees, especially considering that such was undertaken previous to the commencement of the negotiation and simultaneously with Divinagracia’s suggestion that the bank lawyers be excluded from its negotiating panel. The records show that after the initiation of the collective bargaining process, with the inclusion of Umali in the Union’s negotiating panel, the negotiations pushed through.

 

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Labor Relations The complaint was made only on August 16, 1993 after a deadlock was declared by the Union on June 15, 1993. It is clear that such ULP charge was merely an afterthought. The accusation occurred after the arguments and differences over the economic provisions became heated and the parties had become frustrated. It happened after the parties started to involve personalities. As the public respondent noted, passions may rise, and as a result, suggestions given under less adversarial situations may be colored with unintended meanings. Such is what appears to have happened in this case.

Surface Bargaining Defined . - The Union alleges that the Bank violated its duty to bargain; hence, committed ULP under Article 248(g) when it engaged in surface bargaining. It alleged that the Bank just went through the motions of bargaining without any intent of reaching an agreement, as evident in the Bank’s counter-proposals. counter-proposals. It explained that of the 34 economic provisions it made, the Bank only made 6 economic counterproposals. Further, as borne by the minutes of the meetings, the Bank, after indicating the economic provisions it had rejected, accepted, retained or were open for discussion, refused to make a list of items it agreed to include in the economic package. Surface bargaining is defined as “going through the motions of negotiating” without any legal intent to reach an agreement. The resolution of surface bargaining allegations never presents an easy issue. The determination of whether a party has engaged in unlawful surface bargaining is usually a difficult one because it involves, at bottom, a question of the intent of the party in question, and usually such intent can only be inferred from the totality of the challenged party’s conduct both at and away from the bargaining table. It involves the question of whether an employer’s conduct demonstrates an unwillingness to bargain in good faith or is merely hard bargaining.

102. What What is a yellow-dog contract? It requires as a condition for employment that a person or an employee shall not join a labor organization or shall withdraw from one to which he belongs. 103. W What hat is a union security clause? Is it a mandatory provision in the CBA? It is a stipulation in the CBA requiring membership in the contracting union as a condition for employment or retention of employment in the company. No, it is not a mandatory provision in the CBA but is merely a usual provision in the CBA.

 

104. What is the purpose of union security clause? To guarantee the continued existence of the SEBA through the enforced membership for the benefit of workers; to safeguard and ensure the union’s continued existence and to strengthen and protect it from the fickleness or perfidy of

its own members. Without this clause, the existence of the SEBA is always subject to uncertainty as its members may resign anytime resulting in the decimation of its ranks. (Chan 2019)

105.  Give Give me the different kinds of union security clauses Closed Shop Agreement - agreement whereby an employer binds himself to hire only members of the contracting union, who must continue to remain members in good standing to keep their jobs Union Shop Agreement – Agreement  – non-members  non-members may be hired but to retain employment, they must become union members after a certain period. The requirement applies to present and future employees Preferential Shop Agreement  –  – an  an agreement whereby the employer merely agrees to give preference to the members of the bargaining union in hiring, promotion or filing vacancies and retention in case of lay-off. The employer has the right to hire from the open market if union members are not available. Agency Shop Agreement/Maintenance of Treasury Shop  –  –   an agreement whereby employees must either join the union or pay to the union as exclusive bargaining agent a sum equal to that paid by the members. Bargaining for Members Only  –  –   provides that the union is recognized as the bargaining agent only for its own members. Exclusive Bargaining Shop  –  –   provides that the union is recognized as the exclusive bargaining agent for all employees in the bargaining unit, whether union members or not. Maintenance of Membership Shop Agreement  –  –   No employee is compelled to join the union, but all present or future members must, as a condition of employment, remain in good standing in the union Modified Union Shop  –  –   the employees who are not union members at the time of signing the contract need not join the union but all the workers hired thereafter must join.

106.  Alabang Alabang Country Club v. NLRC “Union Shop” and “Maintenance of Membership Shop,” Explained . - Another cause for termination is dismissal from employment due to the enforcement of the union security clause in the CBA. Here, Art. II of the CBA on Union security contains the provisions on the Union shop and maintenance of membership shop. There is union shop when all new regular employees are required to join the union within a certain period as a condition for their continued employment. There is maintenance of membership shop when employees who are union members as of the effective date of the agreement, or who thereafter become

 

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Labor Relations members, must maintain union membership as a condition for continued employment until they are promoted or transferred out of the bargaining unit or the agreement is terminated. Termination of employment by virtue of a union security clause embodied in a CBA is recognized and accepted in our jurisdiction. This practice strengthens the union and prevents disunity in the bargaining unit within the duration of the CBA. By preventing member disaffiliation

107.  General General Santos Coca-Cola Plant Free Workers Union-TUPAS v. Coca-Cola Bottlers Philippines, Inc. Unfair labor practice refers to “acts that violate the workers’ right to organize”—the prohibited acts are related to the workers’ right to self -organization -organization and to the observance of a Collective Bargaining Agreement (CBA).   We find no reversible error in the assailed Decision.   It is true that the NLRC erroneously concluded that the

with the threat of expulsion from the union and the consequent termination of employment, the authorized bargaining representative gains more numbers and strengthens its position as against other unions which may want to claim majority representation.

contracting-out of jobs in CCBPI Gen San was due to the GTM system, which actually affected CCBPI’s sales sale s and marketing departments, and had nothing to do with petitioner’s complaint. However, this does not diminish the NLRC’s finding that JLBP was a legitimate, independent contractor and that CCBPI Gen San engaged the services of JLBP to meet business exigencies created by the freezehiring directive of the CCBPI Head Office. 

Requisites of termination of employment pursuant to Union Security Clause. - In terminating the employment of an employee by enforcing the union 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 provision in the CBA; and (3) There is sufficient evidence to support the union’s decision to expel the employee from the union.

On the other hand, the CA squarely addressed the issue of  job contracting in its assailed Decision and Resolution. The CA itself examined the facts and evidence of the parties and found that, based on the evidence, CCBPI did not engage in labor-only contracting and, therefore, was not guilty of unfair labor practice. 

These requisites constitute just cause for terminating an employee based on the CBA’s union security provision.

The NLRC found— found—and the same was sustained by the CA — that the company’s action to contract-out contract -out the services and functions performed by Union members did not constitute unfair labor practice as this was not directed at the members’ right to self -organization. -organization.

There is substantial compliance with due process where the employees were notified that their dismissal was being requested by the Unions, their explanations heard, and dismissed only after the employer had reviewed and considered the documents submitted by the Union vis-à-vis the written explanations submitted by said employees . The CA and the three respondents err in relying on Malayang Samahan, as its ruling has no application to this

Unfair labor practice refers to “acts that violate the workers’ right to organize.” The prohibited acts are related  related   to the workers’ right to self -organization -organization and to the observance of a CBA. Without that element, the acts, even if unfair, are not unfair labor practices. Both the NLRC and the CA found that petitioner was unable to prove its charge of unfair labor practice. It was the Union that had the burden of adducing substantial evidence to support its allegations of unfair labor

case. In Malayang Samahan, the union members were expelled from the union and were immediately dismissed from the company without any semblance of due process. Both the union and the company did not conduct administrative hearings to give the employees a chance to explain themselves. In the present case, the Club has substantially complied with due process. The three respondents were notified that their dismissal was being requested by the Union, and their explanations were heard. Then, the Club, through its President, conferred with said respondents during the last week of October 2001. The three respondents were dismissed only after the Club reviewed and considered the documents submitted by the Union vis-à-vis the written explanations submitted by said respondents. Under these circumstances, we find that the

practice, which burden it failed to discharge.

Club had afforded the three respondents a reasonable opportunity to be heard and defend themselves.

108.  What What is a company-do company-dominated minated union? One whose formation, function or administration has been assisted by any act of the employer defined as ULP under the Labor Code. (Chan 2019) 109.  Purefoods Purefoods Corp. v. Nagkakaisang Samahang Manggagawa ng Purefoods Rank and File Termination of union members, when done to interfere with, restrain, or coerce employees in the exercise of their right to self-organization, constitutes ULP.  - It is crystal clear that the closure of the Sto. Tomas farm was made in bad faith. Badges of bad faith are evident from the following acts of the petitioner: it unjustifiably refused to recognize the STFWU’s and the other unions’ affiliation with PULO; it concluded a new CBA with another union in another farm during the agreed indefinite suspension of the collective bargaining negotiations; it surreptitiously transferred and continued its business in a less hostile environment; and it

 

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Labor Relations suddenly terminated the STFWU members, but retained and brought the non-members to the Malvar farm. Petitioner presented no evidence to support the contention that it was incurring losses or that the subject subjec t farm’s lease agreement was pre-terminated. Ineluctably, the closure of the Sto. Tomas farm circumvented the labor organization’s right to collective bargaining and violated the members’ right to security of tenure. We deem as proper the award of moral and exemplary damages. We hold that the sudden termination of the STFWU members is tainted with ULP because it was done to interfere with, restrain or coerce employees in the exercise of their right to self-organization. Thus, the petitioner company is liable for the payment of the aforesaid damages. Notable, though, is that this award, while stated in the body of the NLRC decision, was omitted in the dispositive portion of the said ruling. To prevent any further confusion in the implementation of the said decision, we correct the dispositive portion of the ruling to include the payment of P500,000.00 as moral and exemplary damages to the illegally dismissed STFWU members.

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. 

111.  UFE-DFA-KMU UFE-DFA-KMU v. Nestle Philippines, Inc. Good faith is presumed and he who alleges bad faith has the duty to prove the same . - Herein, Nestlé is accused of violating its duty to bargain collectively when it purportedly imposed a pre-condition to its agreement to discuss and engage in collective bargaining negotiations with UFE-DFAKMU. A meticulous review of the record and pleadings of the cases at bar shows that, of the two notices of strike filed by UFE-DFA-KMU before the NCMB, it was only on the second that the ground of unfair labor practice was alleged. Worse, the 7 November 2001 Notice of Strike merely contained a general allegation that Nestlé committed unfair labor practice by bargaining bargainin g in bad faith for supposedly “setting precondition in the ground rules (Retirement issue).” On the

110. ULP of Labor organizations Article 260 of the Labor Code provides that it shall be unfair labor practice for a labor organization, its officers, agents or representatives: 

contrary, Nestlé, in its Position Paper, did not confine itself to the issue of the non-inclusion of the Retirement Plan but extensively discussed its stance on other economic matters pertaining to the CBA.

(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; 

Basic is the principle that good faith is presumed and he who alleges bad faith has the duty to prove the same. By imputing bad faith unto the actuations of Nestlé, it was UFE DFA-KMU, therefore, who had the burden of proof to present substantial evidence to support the allegation of unfair labor practice. A perusal of the allegations and arguments raised by UFE-DFA-KMU in the Memorandum (in G.R. Nos. 158930-31) will readily disclose that it failed to discharge said onus probandi as there is still a need for the presentation of evidence other than its bare contention of

(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. 

unfair labor practice in order to make certain the propriety or impropriety of the unfair labor practice charge hurled against Nestlé. Under Rule XIII, Sec. 4, Book V of the Implementing Rules of the Labor Code: “x x x. In cases of unfair labor practices, the notice of strike shall as far as practicable, state the acts complained of and the efforts to resolve the dispute amicably.” Except for the assertion put forth by UFE-DFA-KMU, neither the second Notice of Strike nor the records of these cases substantiate a finding of unfair labor practice. It is not enough that the union believed that the employer committed acts of unfair labor practice when the circumstances clearly negate even a prima facie showing to warrant such a belief. In its letter to UFE-DFA-KMU of 29 May 2001, though Nestlé underscored its position that “unilateral grants, onetime company grants, companycompany initiated policies and programs, which include, but are not limited to the Retirement Plan, Incidental Straight Duty Pay and Calling Pay Premium, are by their very nature not

 

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Labor Relations proper subjects of CBA negotiations and therefore shall be excluded therefrom,” such attitude is not tantamount ta ntamount to refusal to bargain. This is especially true when it is viewed in the light of the fact that eight out of nine bargaining units have allegedly agreed to treat the Retirement Plan as a unilateral grant. Nestlé, therefore, cannot be faulted for considering the same benefit as unilaterally granted. To be sure, it must be shown that Nestlé was motivated by ill will, “bad faith, or fraud, or was oppressive to labor, or done in a manner contrary to morals, good customs, or public policy, and, of course, that social humiliation, wounded feelings, or grave anxiety resulted x x x” in disclaiming unilateral grants as proper subjects in their collective bargaining negotiations. There is no per se test of good faith in bargaining. Good faith or bad faith is an inference to be drawn from the facts, to be precise, the crucial question of whether or not a party has met his statutory duty to bargain in good faith typically turns on the facts of the individual case. Necessarily, a determination of the validity of the Nestlé’s proposition involves an appraisal of the exercise of its management prerogative.

112. DLSU DLSU V. DLSUEA-NAFTEU Employer’s suspension of normal relations with the LLO’s incumbent set of officers constitutes interference . - On the other matter raised by petitioners— petitioners —that their acts of withholding union and agency dues and suspension of normal relations with respondent’s incumbent set of officers pending the intra-union dispute did not constitute interference, the Court finds for respondent. Pending the final resolution of the intra-union dispute, respondent’s officers remained duly authorized to conduct union affairs. The clarification letter of May 16, 2003 issued by BLR Director Hans Leo J. Cacdac enlightens: “We take this opportunity to clarify that there that  there is no void in the DLSUEA leadership. The 19 March 2001 Decision of DOLE-NCR Regional Director should not be construed as an automatic termination of the incumbent officers’ tenure of office. As duly-elected officers of the DLSUEA, their leadership is not deemed terminated by the expiration of their terms of office, for they shall continue their functions and enjoy the rights and privileges pertaining to their respective positions in a hold-over capacity, until their successors shall have been elected and qualified.”

organization and an employer becomes the law between the parties, compliance with which is mandated by express policy of the law.

113.  St. St. John Colleges, Inc. v. St. John Academy Faculty and Employeess Union Employee If an employer found the Union’s dema nds excessive, its remedy under the law is to refer the matter for voluntary arbitration or compulsory dispute resolution, not the closure of the establishment. - These alleged difficult labor problems merely show that SJCI and the Union had disagreements regarding workers’ benefits which is normal in any business establishment. That SJCI agreed to appropriate 100% of the tuition fee increase to the workers’ benefits sometime in 1995 does not mean that it was helpless in the face of the Union’s demands because beca use neither party is obligated to precipitately give in to the proposal of the other party during collective bargaining. If SJCI found the Union’s demands excessive, its remedy under the law is to refer the matter for voluntary or compulsory dispute resolution. Besides, this incident which occurred in 1995, could hardly establish the good faith of SJCI or justify the high school’s closure in 1998. The employer cannot unilaterally close its establishment on the pretext that the demands of its employees are excessive. - At any rate, even assuming that the Union’s demands were illegal or excessive, the important and crucial point is that these alleged illegal or excessive demands did not justify the closure of the high school and do not, in any way, establish SJCI’s good faith. The employer cannot unilaterally close its establishment on the pretext that the demands of its employees are excessive. As already discussed, neither party is obliged to give-in give- in to the other’s excessive or unreasonable demands during collective bargaining, and the remedy in such case is to refer the dispute to the proper tribunal for resolution. This was what SJCI and the Union did when they referred the 1997 CBA bargaining deadlock to the SOLE; however, SJCI pre-empted the resolution of the dispute by closing the high school. SJCI disregarded the whole dispute resolution mechanism and undermined the Union’s right to collective bargaining when it closed down the high school while the dispute was still pending with the SOLE.

 A CBA entered into by a legitimate labor organization and an employer becomes the law between the parties compliance with which is mandated by express policy of the law.  - It bears noting that at the time petitioners’

 Aside from the remedy of submitting the dispute for voluntary or compulsory arbitration, the employer may file a complaint for ULP against the Union for bargaining in bad faith.  - The Labor Code does not authorize the employer to close down the establishment on the ground of illegal or excessive demands of the Union. Instead, aside from the remedy of submitting the dispute for voluntary or compulsory arbitration, the employer may file a complaint

questioned moves were adopted, a valid and existing CBA had been entered between the parties. It thus behooved petitioners to observe the terms and conditions thereof bearing on union dues and representation. It is axiomatic in labor relations that a CBA entered into by a legitimate labor

for ULP against the Union for bargaining in bad faith. If found guilty, this gives rise to civil and criminal liabilities and allows the employer to implement a lock out, but not the closure of the establishment resulting to the permanent loss of employment of the whole workforce.

 

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Labor Relations

In fine, SJCI undermined the Labor Code’s system sy stem of dispute resolution by closing down the high school while the 1997 CBA negotiations deadlock issues were pending resolution before the SOLE. The closure was done in bad faith for the purpose of defeating the Union’s right to collective bargaining. Besides, as found by the NLRC, the alleged illegality and excessiveness of the Union’s demands were not sufficiently proved by SJCI. Even on the assumption that the Union’s demands were illegal or excessive, SJCI’s remedy was to await the resolution by the SOLE and to file a ULP case against the Union. However, SJCI did not have the power to take matters into its own hands by closing down the school in order to get rid of the Union.

COLLECTIVE BARGAINING AGREEMENT

Negotiation may be conducted with the intervention of the government through the Conciliators-Mediators of the NCMB in case any dispute arising therefrom is not settled by the parties among themselves. C. Signing and Execution  –  –   Although the panel representatives of both management and the SEBA have affixed their signatures on each and every page of the CBA and the same having been notarized by a Notary Public, it cannot as yet be considered as having taken effect since there are still certain mandatory legal processes that need to be complied with, such as publication, ratification and registration. D. Publication  –  –   Posting of a copy of the newly concluded CBA in at least 2 conspicuous places in the workplace, at least five days prior to the ratification thereof by all the employees comprising the bargaining unit.

114. What What is the duty to bargain b argain collectively? Article 263 of the Labor Code provides that the duty to bargain collectively means the performance of a mutual obligation to meet and convene promptly and expeditiously

E. Ratification  –  –   Act of ratifying in writing the newly concluded CBA by at least the majority of all the employees covered by and included in the bargaining bar gaining unit.

in good faith for the purpose of negotiating an   agreement with respect to wages, hours of work and all other terms and conditions  of employment including proposals for adjusting any grievances or questions arising  under such agreement and executing a contract incorporating such agreements if   requested by either party but such duty does not compel any party to agree to a   proposal or to make any concession. 

F. Registration – Registration  – Registration  Registration with the BLR or DOLE Regional Office by submitting five copies of the duly ratified CBA together with the other documentary requirements and paying the required registration fee.

Article 264 of the Labor Code, on the other hand, defines the duty to bargain collectively when there exists a collective bargaining agreement. It provides that when there is a collective bargaining agreement, the duty to bargain collectively shall also mean that neither party shall terminate nor modify such agreement during its lifetime.

116.  Let Let us say that the parties negotiated negotiated the terms of the CBA and they came to one agreement. Can they now execute the CBA? Yes, they can sign and execute a written document after a series of negotiations. The document shall embody all the agreements reached by them on each and every issue raised

However, either party can serve a written notice to terminate or modify the agreement at least sixty (60) days prior to its expiration date. It shall be the duty of both parties to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60-day period and/or until a new agreement is reached by the parties. p arties. 

G. Joint Administration  –  – By  By employer and the SEBA during the entire lifetime of the CBA which is set by law at five years

and resolved during the negotiation process.

117.  After After the execution, what will happen next? There shall be publication, ratification, and registration.

B. Negotiation  –  –   Process of meeting, not later than 10

118.  What What are the terms of the CBA? Article 265 of the Labor Code provides that any Collective Bargaining Agreement that the parties may enter into shall, insofar as the representation aspect is concerned, be for a term of five (5) years. No petition questioning the majority status of the incumbent bargaining agent shall be entertained and no certification election shall be conducted by the Department of Labor and Employment outside of the sixty-day period immediately before the date of expiry of such five-year term of the Collective Bargaining Agreement.

calendar days from date of request for conference, of the representatives of the employer and the SEBA, for the purpose of discussing and adjusting their differences, if any, with the end in view of concluding an agreement on the terms and conditions of their employment relationship.

All other provisions of the Collective Bargaining Agreement shall be renegotiated not later than three (3) years after its execution. Any agreement on such other provisions of the Collective Bargaining Agreement entered into within six (6) months from the date of expiry of the term of such other

115. Discuss Discuss the collective bargaining process A. Preliminary Process  –  –   Serving a written notice upon the other party with a statement of its proposals. The other party is required to make a reply thereto not later than 10 calendar days from receipt of such notice.

 

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Labor Relations provisions as fixed in such Collective Bargaining Agreement, shall retroact to the day immediately following such date. If any such agreement is entered into beyond six months, the parties shall agree on the duration of retroactivity thereof. In case of a deadlock in the renegotiation of the Collective Bargaining Agreement, the parties may exercise their rights under this Code.

twice which were left unanswered and unacted upon; and (3) the Company made no counter proposal whatsoever all of which conclusively indicate lack of a sincere desire to negotiate. A Company’s refusal to make counter proposal if considered in relation to the entire bargaining process, may indicate bad faith and this is specially true where the Union’s request for a counter proposal is left unanswered. Even during the period of compulsory arbitration before the

119. Can the five year period be extended? Why? No. While the parties may agree to extend the CBA’s original five-year term despite an agreement for a CBA with a life of more than five years, the bargaining union’s exclusive and bargaining status is effective only for five years and can be challenged within 60 days prior to the expiration of the CBA’s first five years.

NLRC, petitioner Company’s approach and attitude—stalling attitude— stalling the negotiation by a series of postponements, nonappearance at the hearing conducted, and undue delay in submitting its financial statements, lead to no other conclusion except that it is unwilling to negotiate and reach an agreement with the Union. Petitioner has not at any instance, evinced good faith or willingness to discuss freely and fully the claims and demands set forth by the Union much less justify its opposition oppos ition thereto.

The exclusive bargaining status cannot go beyond five years and the representation status is a legal matter not for the workplace parties to agree upon. (FVC Labor Union-Phil. Transport and General Workers Association v. SANAMA-FVCSIGLO)

120. Can Can it be shortened? Pwedeng 3 years ang representation aspect? No. Article 265 is clear that any CBA that the parties may enter into shall, insofar as the representation aspect is concerned, be for a term of five (5) years. 121. What What is the lifetime of the CBA? The CBA itself? The legislators were more inclined to have the period of effectivity for three (3) years insofar as the economic as well as non-economic provisions are concerned, except representation. The framers of the law did not give a fixed term as to the effectivity of the terms and conditions of employment. It can be gleaned from their discussions that it was left to the parties to fix the period. (San Miguel Corporation Employees Union-PTGWO v. Confesor)   122. The economic provisions, can it be extended? Can it be shortened? 123. Kiok Kiok Loy v. NLRC The Court held in the case of Kiok Loy v. NLRC   that the company’s refusal to make counter-p counter -proposal roposal to the union’s proposed CBA is an indication of its bad faith. Where the employer did not even bother to submit an answer to the bargaining proposals of the union, there is a clear evasion of the duty to bargain collectively. Company’s refusal to make counter- proposal  proposal to the union’s  proposed collective bargaining agreement, an indication of its bad faith. - We are in total conformity with respondent NLRC’s pronouncement that petitioner Company is GUILTY

of unfair labor practice. It has been indubitably established that (1) respondent Union was a duly certified bargaining agent; (2) it made a definite request to bargain, accompanied with a copy of the proposed Collective Bargaining Agreement, to the Company not only once but

124.  Who Who ratifies a CBA? Majority of all the employees covered by and included in the bargaining unit. 125.  Do Do we apply double-majority rule in ratifying CBA? No. It is only applicable in determining the sole and exclusive bargaining agent.

126.  What What constitutes majority? 50%+1 127.  Let Let us say that in the company they have 100 employees. 51 cast their votes to ratify the CBA. 31 voted yes to ratify, 20 does not want to ratify the CBA. Is the CBA ratified? No because there is no majority of all the workers voting for the ratification of the CBA.

DETERMINING THE BARGAINING UNION 128.  What What are the different modes of determining the appropriate bargaining unit? Four factors in determining the appropriate bargaining unit: A. Community of Interest Doctrine or Substantial Mutual Interest Rule – Rule  – The  The employees sought to be represented by the collective bargaining unit must have community or mutuality of interest in terms of employment and working conditions as evinced by the type of work they perform. It is characterized by similarity of employment status, same duties and responsibilities and substantially similar compensation and working conditions B. Globe Doctrine – Doctrine  – This  This principle is based on the will of the employees. The determining factor is the desire of the workers themselves. C. Employment Status  –  –   The determination of the appropriate bargaining unit based on the employment

 

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Labor Relations status of the employees is considered an acceptable mode. For instance, casual employees and those employed on a day-to-day basis do not have the mutuality or community of interest with regular and permanent per manent employees. D. Collective Bargaining History  –  –   This principle puts premium to the prior collective bargaining history and affinity of the employees in determining the appropriate

always treated separately. Foreign-hires have limited tenure; local-hires enjoy security of tenure. Although foreign-hires perform similar functions under the same working conditions as the local-hires, foreign-hires are accorded certain benefits not granted to local-hires. These benefits, such as housing, transportation, shipping costs, taxes, and home leave travel allowance, are reasonably related to their status as foreign-hires, and justify the

bargaining unit. However, the existence of a prior collective bargaining history has been held as neither decisive nor conclusive in the determination of what constitutes an appropriate bargaining unit. (Chan 2019)

exclusion of the former from the latter. To include foreignhires in a bargaining unit with local-hires would not assure either group the exercise of their respective collective bargaining rights.

129. What What is a bargaining unit? Group of employees of a given employer comprised of all or less than all the entire body of the employees, which, consistent with equity to the employer, indicate to be best suited to serve the reciprocal rights and duties of the parties under the collective bargaining provisions of the law.

132.  Let Let us say that we have Tanduay Distillery. It maintains two offices: Liquor plant in Cabuyao, Laguna and admin office in Manila. Can the employees of Tanduay Distillery in Manila and Laguna form a single bargaining unit? No. The test whether the designation of a bargaining unit is appropriate is whether it will best assure the exercise of their collective bargaining rights. There should be community of interest which should be reflected in groups having substantial similarity of work and duties or similarity of compensation and working conditions, among other

130. Distinguish Distinguish bargaining unit from a bargaining agent. Bargaining Unit Bargaining Agent Group of employees of a A legitimate labor union duly given employer comprised of all or less than all the entire body of the employees, which, consistent with equity to the employer, indicate to be best suited to serve the reciprocal rights and duties of the parties under the collective bargaining provisions of the law 

recognized or certified as the sole and exclusive bargaining representative or agent of all the employees in a bargaining unit

criteria. (Chan 2019) 

133.  Will Will your answer be the same if the employees in Cabuyao wants the employees in Manila to join them in the bargaining unit? Gusto nila kasama nila yung taga-Manila. Yes my answer will still be the same. Although the Globe Doctrine prevails, the employees in Cabuyao liquor plant and the employees in Manila admin office have no community or mutuality of interest. NB: Above answer answer based on Atty. Golangco’s lecture.

131. International International School Alliance of Educators v. Quisumbing Foreign-hires do not belong to the same bargaining unit as local-hires. - A bargaining unit is “a group of employees of a

134.  How How about if Tanduay also has a distillery and bottling facilities in Manila? My answer will change. Cabuyao plant employees and

given employer, comprised of all or less than all of the entire body of employees, consistent with equity to the employer, indicate to be the best suited to serve the reciprocal rights and duties of the parties under the collective bargaining provisions of the law.” The factors in determining the appropriate collective bargaining unit are (1) the will of the employees (Globe Doctrine); (2) affinity and unity of the employees’ interest, such as substantial similarity of work and duties, or similarity of compensation and working conditions (Substantial Mutual Interests Rule); (3) prior collective bargaining history; and (4) similarity of employment status. 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.

Manila distillery and bottling facilities in Manila may form one bargaining unit as they have the same duties and responsibilities and substantially similar compensation and working conditions.

It does not appear that foreign-hires have indicated their intention to be grouped together with local-hires for purposes of collective bargaining. The collective bargaining history in the School also shows that these groups were

Geographical location can be completely disregarded if the communal or mutual interests of the employees are not sacrificed. (Chan 2019)

135.  Who Who participates in the PCE? All employees whether union or non-union members who belong to the appropriate bargaining unit can vote. 136.  Can Can a non-union member also vote in the PCE? Yes, all employees whether union or non-union members who belong to the appropriate bargaining unit can vote.

137.  Modes Modes of determining SEBA A. Request for SEBA certification B. Certification election

 

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Labor Relations C. Consent election D. Run-off election E. Re-run election

138. LLet et us say that the company is unorganized but there are two existing LLOs in the company. They want to file a petition, one of them filed a petition for SEBA Certification. Should it be granted? No. If the DOLE Regional Director finds the establishment unorganized with more than 1 LLO, he/she should refer the same to the Election Officer for the conduct of certification election. 139. Who Who may file the PCE? A. Any legitimate labor organization including: (a) A national union or federation that has issued a charter certificate to its local chapter/chartered local. The former is filing the PCE for and on behalf of the latter; or (b) The local chapter/chartered local itself which has been issued a charter certificate by the national union or federation; or

142.  Where Where should you file the PCE? With the Regional Office which issued the petitioning union’s   certificate of registration/certificate of creation of union’s chartered local. The petition shall be heard and resolved by the Med-Arbiter. 143.  IIff PCE is denied by Med-Arbiter, what is the remedy of the union? Will they file Motion for Reconsiderat Reconsideration? ion? Appeal. The order granting the conduct of a certification election in an organized establishment and the decision dismissing or denying the petition whether in an organized or unorganized establishment may be appealed to the Office of the Secretary within 10 days from receipt thereof. The order granting the conduct of a certification election in an unorganized establishment shall not be subject to appeal.

144.  When When we say PCE, does the Med-Arbiter participate/intervene in the conduct of the election? He examines the petition, siya rin nag-oorder pag PCE, siya rin ba ang andoon pag may election na? The Med Arbiter grants the petition and an election officer is designated by the Regional Director to supervise the election.

(c) An independently registered union. B. Any employer, when requested to bargain collectively in a bargaining unit where no registered collective bargaining exists.

140. When When can the employer file the PCE? When requested to bargain collectively in a bargaining unit where no registered collective bargaining agreement exists. 141. If If the PCE is filed by one of the unions in the establishment, can the employer file an opposition on the conduct of the PCE, on the ground that members of the union who filed the PCE are not actually employees of the company but employees of the contractor of the company, pwede ba siya mag-file ng opposition? No, the employer cannot file an opposition. Article 271 of the Labor Code provides that 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. The inclusion as union members of employees outside the bargaining unit shall not be a ground for the cancellation of the registration of the union. Said employees are automatically deemed removed from the list of membership of said union. (Republic v. Kawashima Textile Manufacturing) 

The actual certification election is conducted by the “Election Officer” who is an officer of the BLR or the Labor Relations Division in the DOLE Regional Office authorized to conduct: (a) Certification, consent, run-off or re-run elections; (b) Elections of union officers; and (c) Other forms of elections and referenda.

145.  Distinguish Distinguish PCE from a consent election Certification Election Consent Election As to Purpose To determine the SEBA of all the employees in an appropriate bargaining unit for the purpose of collective bargaining

As to Participation of Med-Arbiter Requires a PCE filed by a Held by agreement of the union or employer. A Med- unions with or without the Arbiter grants the petition participation of the Medand an election officer is Arbiter designated by the RD to supervise the election As to supervision of DOLE Always conducted under the May be conducted with or control and supervision of without the control and the DOLE supervision of the DOLE As to voluntariness Although non-adversarial, is Voluntary mode of resolving a compulsory method of labor dispute adjudicating a labor dispute As to priority Resorted to only when the Given the highest priority contending unions fail or

 

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Labor Relations refuse to submit their representation dispute through consent election. As to number of contending unions May involve only one Necessarily involves at least petitioner union two or more contending unions (2019 Memory Aid and Chan 2019)

C. Not one of the choices obtained the majority of the valid votes cast

146. H How ow do we determine if there is a valid election? Explain. For there to be a valid certification election, two majorities must be complied with:

F. The 2 choices which garnered the highest number of votes will be declared the winner provided they get the majority votes of the total votes cast. (2019 Memory Aid)

A. Majority of all eligible voters in the bargaining unit should have cast their votes; and

NB: Note that Chan 2019 Book states that in a run-off election, one of the requisites is that there are three or more unions competing in a certification or consent election (which is different from the fourth condition enumerated above). Ex: Union A, Union B, Union C, and No Union.

B. Majority of the valid votes cast required in order to be chosen as the SEBA.

147. The The term “majority” means what?   50%+1 148. Let Let us say we have 100 employees in a company. All of them are eligible voters. Only 51 cast their vote. Is there a valid election? Yes, there is compliance with the first majority. 149. Let Let us say that the choices are as follows: A – 20 B – 30 No Union – 1 Union B will be declared as the winner. There is compliance with double majority rule as B garnered majority of the valid votes cast. 50%+1 of 51 is 26 employees.

150. What What if the result of the election are as follows: A – 21 B- 19 No Union - 11  No compliance with second majority. In order to win the election, a contending union should be able to garner the majority of the valid votes cast. If only 51 employees cast their votes, the majority thereof or at least 26 employees should vote for the winning union. Run-off election is proper. The conditions which must exist for a run-off election are: A. Valid election took place because majority of the CBU members voted B. The total votes for the unions are at least 50% of the votes cast

D. There is no unresolved challenged votes or election protest which if sustained can materially alter the results E. The said election presented at least 3 choices (e.g. Union One, Union Two, and No Union)

151.  Let Let us say that the parties will now conduct a run-off election. Will the double majority rule apply in determining the winner of the run-off election?

GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION 152.  What What is a grievance? Any question by either the employer or the union regarding: A. The interpretation or implementation of any provision of the CBA B. Interpretation or enforcement of company personnel policies C. Violation of any provisions of the CBA or company personnel policies.

153.  Can you give me an example of a grievance? 154.  Discuss Discuss the grievance procedure Generally, provisions of the CBA shall apply. However, in the absence of a specific provision in the CBA or existing company practice prescribing for procedure in handling grievances, the following shall apply: A. An employee shall present his grievance or complaint orally or in writing to the shop steward (one of the union officers), who shall verify the facts and determine whether or not the grievance is valid. B. If the grievance is valid, the shop stewards shall immediately bring the complaint to the employee’s immediate supervisor. The shop steward, the employee and his immediate supervisor shall exert efforts to settle the grievance at their level.

 

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Labor Relations C. If no settlement is reached, the grievance shall be referred to the grievance committee which shall have 10 days to decide the case. D. Where grievance remains unresolved, either party may serve notice upon the other of its decision to submit the issue to voluntary arbitration.

155. How will the voluntary arbitrators acquire jurisdiction over an unresolved grievance? The voluntary arbitrator shall exercise jurisdiction over specific cases: A. Upon receipt of a Submission Agreement duly signed by both parties B. Upon receipt of the Notice to Arbitrate when there is refusal from one party C. Upon receipt of an appointment/designation as voluntary arbitrator by the board in either of the following circumstances: i. In the event that parties fail to select an arbitrator; or ii. In the absence of a named arbitrator in the CBA and the party upon whom the Notice to Arbitrate is served does not favorably reply within seven days from receipt of such notice.

156. Who Who is a voluntary arbitrator? A. Any person named or designated in the CBA by the parties as their VA B. One chosen by the parties with or without the assistance of the NCMB, pursuant to a selection procedure agreed upon in the CBA C. One appointed by the NCMB in case either of the parties to the CBA refuses to submit to voluntary arbitration D. Any person who has been accredited by the NCMB as such 157. What What are the qualifications of a voluntary arbitrator?

158.  Should Should the voluntary arbitrator be accredited by the NCMB before the parties can validly designate him as such in the CBA? No, a voluntary arbitrator is chosen by the parties themselves. Their choice is not limited to the arbitrators accredited by the NCMB. 159.  Teng Teng v. Pahagac The VA’s decision may still be reconsidered on the basis of a motion for reconsideration seasonably filed within 10 days from receipt thereof . - In Coca-Cola Bottlers Phil., Inc., Sales Force Union-PTGWO-Balais v. Coca-Cola Bottlers Philippines, Inc.,  we likewise ruled that the VA’s decision may still be reconsidered on the basis of a motion for reconsideration seasonably filed within 10 days from receipt thereof. The seasonable filing of a motion for reconsideration is a mandatory requirement to forestall the finality of such decision. We further cited the 1989 Procedural Guidelines which implemented Article 262-A, viz.: “[U]nder Section 6, Rule VII of the same guidelines implementing Article 262-A of the Labor Code, this Decision, as a matter of course, would become final and executory after ten (10) calendar days from receipt of copies of the decision by the parties x x x unl unless, ess, in the meantime, a motion for reconsideration or a petition for review to the Court of Appeals under Rule 43 of the Rules of Court is filed within the same 10-day 10-day period.” These rulings fully establish that the absence of a categorical language in Article 262-A does not preclude the filing of a motion for reconsideration of the VA’s decision within the 1010-day day period. Teng’s allegation that the VA’s decision had become final and executory by the time the respondent workers filed an appeal with the CA thus fails. We consequently rule that the respondent workers seasonably filed a motion for reconsideration of the VA’s judgment, and

Minimum requirement to be accredited as voluntary arbitrator:

the VA erred in denying the motion because no motion for reconsideration is allowed.

A. A Filipino citizen residing in the Philippines B. A holder of a Bachelor’s degree in any field of behavioral or applied sciences or equivalent educational training short of a bachelor’s degree  degree  C. At least 5 years of experience in management-labor relations D. Completion of training on voluntary arbitration conducted by the NCMB E. A person of good moral character, noted for impartiality, probity and has not civilly, criminally, and administratively adjudged guilty of any offense involving moral turpitude as evidenced by a duly sworn affidavit.

 A motion for reconsideration is the more appropriate remedy in line with the doctrine of exhaustion of administrative remedies. - By allowing a 10-day period, the obvious intent of Congress in amending Article 263 to Article 262-A is to provide an opportunity for the party adversely affected by the VA’s decision VA’s decision to seek recourse via a motion for reconsideration or a petition for review under Rule 43 of the Rules of Court filed with the CA. Indeed, a motion for reconsideration is the more appropriate remedy in line with the doctrine of exhaustion of administrative remedies. For this reason, an appeal from administrative agencies to the CA via Rule 43 of the Rules of Court requires exhaustion of available remedies as a condition precedent to a petition under that Rule.

 

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Labor Relations 160. Let Let us say that the Motion for Reconsideration was denied by the VA, what is the remedy now of the aggrieved party? Under what Rule? Petition for Review shall be filed within 15 days pursuant to Section 4, Rule 43 of the Rules of Court. (Guagua National Colleges v. CA)

Atty. G: Dun sa appeal from the decision of the VA, na appeal to the CA, it’s now 15 days, Guagua National Colleges v. CA , it’s a 2018 case. Yung 10 day period yun yung sa MR. And then after that, avail of Rule 43 of the Rules of Court.

161. Baronda Baronda v. CA  Article 262-A of the Labor Code expressly states that the award or decision of the Voluntary Arbitrator shall be final and executory after ten (10) calendar days from receipt of the copy of the award or decision by the parties . - The period of appeal was 10 days from receipt of the copy of the order of July 25, 2001 by the parties. It is true that Section 4 of Rule 43 stipulates that the appeal shall be taken within 15 days from notice of the award, judgment, final order or resolution, or from the date of its last publication, if publication is required by law for its effectivity, or of the denial of the petitioner’s motion for new trial or reconsideration duly filed in accordance with the governing law of the court or agency a quo. However, Article 262-A of the Labor Code expressly states that the award or decision of the Voluntary Arbitrator shall be final and executory after

When a re-run may be conducted, pagka may failure of elections, kelangan ba i-conduct yan immediately thereafter? Or maybe may period yan, 6 months, 3 months, from the time of election?

10 calendar days from receipt of the copy of the award or decision by the parties. On account of Article 262-A of the Labor Code, the period to appeal was necessarily 10 days from receipt of the copy of the award or decision of the Voluntary Arbitrator or panel of Voluntary Arbitrators; otherwise, the order of July 25, 2001 would become final and immutable, because only a timely appeal or motion for reconsideration could prevent the award or decision from attaining finality and immutability. Yet, HIDECO filed the petition for certiorari, not a petition for review under Rule 43, and the CA liberally treated the petition for certiorari as a petition for review under Rule 43. Such treatment by the CA was procedurally unwarranted.

Sa appreciation of ballots, when is a ballot spoiled?

Read the case of Quisumbing, read it properly. Di ba lahat ng doctrines to determine the appropriate bargaining unit was discussed there. Read all the doctrines, it is not sufficient that you rely solely on the mutuality of interests doctrine. Although talagang yung mutuality of interests doctrine ang magpeprevail sa lahat, hindi siya pwedeng maging part ng bargaining unit kung ang interests niya hindi mapoprotektahan. Remember that for one organization, one corporation, there is only one bargaining unit. Pwedeng dalawa, pero yung isa supervisory and yung isa RNF. Pero kung sister company, pwede ba silang iisang bargaining unit para same ang benefits? Hindi di ba?

STRIKES AND LOCKOUTS 162.  What What is a strike? Any temporary stoppage of work by the concerted action of the employees as a result of an industrial or labor dispute. The following are the elements of a strike: A. Temporary stoppage of work by the employees B. Through their concerted action C. Occasioned by an industrial or labor dispute. Strike encompasses not only concerted work stoppages but

Even if the error sought to be reviewed concerned grave abuse of discretion on the part of the VA, the remedy was an appeal in due course by filing the petition for review within ten (10) days from notice of the award or decision . To begin with, even if the error sought to be reviewed concerned grave abuse of discretion on the part of the Voluntary Arbitrator, the remedy was an appeal in due course by filing the petition for review within 10 days from notice of the award or decision. This was because certiorari, as an extraordinary remedy, was available only when there was no appeal, or any plain, speedy and adequate remedy in the ordinary course of law. In other words, the justification for HIDECO’s resort to the extraordinary equitable remedy of certiorari did not exist due to the availability of appeal, or other ordinary remedies in law to which HIDECO as the aggrieved party could resort.

also slowdowns, mass leaves, overtime boycott, sitdowns, attempt to damage, destroy or sabotage plant equipment and facilities and similar activities. (Chan 2019)

163.  What What is a lockout? Temporary refusal of an employer to furnish work as a result of a labor or industrial dispute. 164.  What What is a labor dispute? Give an example It includes any controversy or matter concerning: A. Terms or conditions of employment; or  B. Association or representation of persons in negotiating, fixing, maintaining, charging or arranging the terms and conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee. 

 

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Labor Relations 165. Grounds Grounds for strike? A. Unfair Labor Practice of the employer B. Collective Bargaining deadlock 166. ULP ULP under Article 259? Article 259 of the Labor Code provides that it shall be unlawful for an employer to commit any of the following unfair labor practices:   (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 right to selforganization; (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 nonunion members accept the benefits under the collective bargaining agreement: Provided, That the individual authorization required under Article 250, 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 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.

167.  Deadlock Deadlock Synonymous with impasse or a standstill which presupposes reasonable effort in good faith bargaining but despite noble intentions does not conclude an agreement between the parties 168.  Basis Basis of the right to strike Section 3 of Article XIII of the 1987 Constitution provides that 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 selforganization, 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. 

169.  Can Can all employees strike? Is this right available to all employees? No. Only private sector employees are allowed to stage a strike. Government sector employees, although allowed to self-organize, are prohibited from declaring or conducting a strike. 170.  Why Why are government employees prohibited to strike? The rationale behind this absolute prohibition is that the terms and conditions of employment in the government service, including any political subdivision or instrumentality thereof and GOCCs with original charters, are governed by Civil Service Law, rules and regulations. In the case of  AGW v. Minister Minis ter of Labor , the Court held that the terms and conditions of employment in the government, including any political subdivision or instrumentality thereof are governed by law, hence,

 

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Labor Relations government workers cannot use the same weapons employed by the workers in the private sector to secure concessions from their employers.

171. How How about security guards? Can they strike? Yes. 172. What What is the nature of the right to strike Strike is the most preeminent of the economic weapons of workers which they unsheathe to force management to agree to an equitable sharing of the joint product of labor and capital. (Chan 2019) In the case of Sta. Rosa Coca-Cola Plant Employees’ Employees’ Union v. Coca-Cola Bottlers, Phils., Inc. , the Court held that it is a weapon that can either breathe life to or destroy the Union and its members in their struggle with management for a more equitable due to their labors. The decision to declare de clare a strike must therefore rest on a rational basis, free from emotionalism, envisaged by the tempers and tantrums of a few hot heads, and finally focused on the legitimate interests of the Union which should not, however, be antithetical to the public welfare, and, to be valid, a strike must be pursued within legal bounds. The right to strike as a means of attainment of social justice is never meant to oppress or destroy the employer. Since strikes cause disparity effects not only on the relationship between labor and management but also on the general peace and progress of society, the law has provided limitations on the right to strike. In the case of Steel Corporation of the Philippines v. SCP Employees Union National Federation of Labor Unions, the Court held that the strike is a legitimate weapon in the human struggle for a decent existence. It is considered as the most effective weapon in protecting the rights of the employees to improve the terms and conditions of their employment. But to be valid, a strike must be pursued within legal bounds. The right to strike as a means for the attainment of social justice is never meant to oppress or destroy the employer. The law provides limits for its exercise. 

Primary Strike  –  –   a strike conducted by the workers against their employers involving a labor dispute directly affecting them. It is legal because there is a labor dispute involved. Secondary Strike  –  –   work stoppage of workers of one company to exert pressure on their employer so that the latter will in turn bring pressure upon the employer of another company with whom another union has a labor dispute. Sit-down Strike  –  –   characterized by a temporary work stoppage of workers who thereupon seize or occupy property of the employer or refuse to vacate the premises of the employer. Wildcat Strike – Strike  – one  one declared and staged without filing the required notice of strike and without the majority approval of the recognized bargaining agent. Sympathetic Strike  –  –   work stoppages of workers of one company to make common cause with other strikers of other companies, without demands or grievances of their own against the employer. Slowdown Strike – Strike  – one  one staged without the workers quitting their work but merely slackening or reducing their normal work output. Quickie Strike or Partial Strike  –  –   brief and unannounced temporary work stoppage, including slowdowns, unauthorized extension of rest periods, and walkouts for portions of a shift or for entire shifts Cause Oriented Strikes - to make a stand on certain national national issues. Good Faith Strike  –  – a  a strike justified by belief in good faith that the employer was committing unfair labor practice at the time the strikers went on strike. General Strike – Strike – extends  extends over a whole community, province, state or country

173. Discuss Discuss the different forms of strike. Legal Strike – Strike  – one  one called for a valid purpose and conducted through means allowed by law.

Local Strike  –  –   one undertaken by workers in a particular enterprise, locality or occupation; it usually involves only one union or only one industry

Illegal Strike  –  –   one staged for a purpose not recognized by law or if for a valid purpose, conducted through means not sanctioned by law

Recognitional Strike  –  –   a strike to compel the employer to recognize one’s union  union 

Economic Strike  –  –   one staged by workers to force wage or other economic concessions from the employer which he is not required by law to grant ULP Strike – Strike –  one called to protest against the employer’s act of ULP enumerated in Article 259 including gross violation of the CBA and union busting

174.  What What is a wildcat strike? One declared and staged without filing the required notice of strike and without the majority approval of the recognized bargaining agent. 

 

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Labor Relations 175.  Sitdown strike? It is characterized by a temporary work stoppage of workers who thereupon seize or occupy property of the employer or refuse to vacate the premises of the employer. It is one where workers stop working but do not leave their place of work.

176. Economic strike? One declared to demand higher wages, overtime pay, holiday pay, vacation pay, etc. It is declared for the purpose of forcing wage or other concessions from the employer which he is not required by law to grant. It is a strike which arose out of a bargaining deadlock in the CBA negotations. 177. Who Who can declare a strike Any certified or duly recognized bargaining representative 178. Effect Effect of a no strike, no lockout clause A strike is illegal if it is declared and staged in violation of the “no strike, no lockout” clause in the CBA (Chan Preweek 2019) A no-strike prohibition in a CBA is applicable only to economic strikes. In other words, ULP Strike is not covered and workers may go on strike based on ULP despite the nostrike provision. (2019 Memory Aid) 

179. Requisites Requisites of a valid strike The following are the procedural but mandatory requisites for a valid and legal strike: A. Valid and factual ground a. Collective Bargaining Deadlock b. Unfair Labor Practice of employer B. Notice of Strike filed with NCMB-DOLE a. At least 30 days from intended date of strike if CBD b. At least 15 days from intended date if ULP C. 24 hour notice  –  – a  a notice must be served to the NCMBDOLE at least 24 hours prior to the taking of the strike vote by secret balloting, informing said office of the decision to conduct a strike vote, and the date, place and time thereof and asking it to supervise the taking of the strike vote.

G. Strike Ban/Waiting Period  –  – The  The 7-day waiting period or strike ban reckoned after submission of the strike vote report to the NCMB-DOLE should be fully observed in all cases. (Chan 2019)

180.  Can Can a labor organization which is not a legitimate labor organization file a notice to strike? No, only a certified or duly recognized bargaining representative may declare a strike. 181.  What What is the cooling-off period? Is it mandatory? It is the 15 day (ULP) or 30 day (CBD) period reckoned from filing of notice of strike. It is that period given to the NCMB to mediate and conciliate the parties. It is that span of time allotted by law for the parties to settle their disputes in a peaceful manner before staging a strike or lockout. 182.   Union filed notice of strike June 1 Strike vote on June 5 Strike Vote Report on Strike Vote June 9. When can they stage strike, assuming they complied with the other requirements? In case of Deadlock – Deadlock – 30  30 days from June 1 plus 7 days In case of ULP – ULP – 15  15 days from June 1 plus 7 days

183.  What What is union-busting To constitute union-busting under Article 278 (c) of the Labor Code, there must be: A. A dismissal from employment of union officers duly elected in accordance with the union’s constitution and byby laws B. The existence of the union is threatened by such dismissal.

184.  Strike Strike ban period. What is the purpose? It is the 7-day waiting period or strike ban reckoned after the submission of the strike vote report to the NCMB-DOLE. It is intended to give the NCMB-DOLE an opportunity to verify whether the projected strike really carries the imprimatur of the majority of the union members. (Chan 2019)

E. Strike Vote Report - A strike vote report should be submitted to the NCMB-DOLE at least 7 days before the intended date of the strike

185.  Purpose Purpose of cooling-off period In requiring the cooling-off period, the avowed intent of the law is to provide an opportunity for mediation and conciliation by the NCMB-DOLE. It is designed to afford the parties the opportunity to amicably resolve the dispute with the assistance of the Conciliation-Mediators of the NCMBDOLE.

F. Cooling-off Period  –  –   Except in cases of union busting, observance of the cooling-off period of 15 days, in case of ULP of the employer, or 30 days in case of CBD, reckoned from the filing of the notice of strike

186.  Good Good faith strike A strike justified by belief in good faith that the employer was committing unfair labor practice at the time the strikers went on strike. Good faith saves the strike from being

D. Strike Vote  –  –   A strike vote must be taken where a majority of the members of the union obtained by secret ballot in a meeting called for the purpose must approve it

 

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Labor Relations declared illegal and the strikers from being declared to have lost their employment status.

187. C Can an the parties conduct the Strike vote and submit the strike vote report during the cooling off period In the event the result of the strike/lockout vote ballot is filed within the cooling-off period, the 7 day requirement shall be counted from the day following the expiration of the cooling-off period. (NCMB Primer on Strike, Picketing and Lockout) In other words, the 7 days should be added to the cooling off period of 15 days, in case of ULP, or 30 days, in case of collective bargaining deadlock and it is only after the lapse of the total number of days after adding the 2 periods that the strike/lockout may be lawfully and validly staged. (Chan 2019)

188. We We have this group of employees, Union X, who submitted a Notice of Strike with the NCMB. While having their conciliation mediation proceedings with the NCMB, they went to the DOLE and picketed the front of DOLE office and then they were telling the Secretary of Labor to intercede on their behalf on the labor dispute with the company. When the company found out that the members of the union went to DOLE, they were given a notice to explain why their services should be terminated, on the ground that there is an illegal strike. Was there an illegal strike? Nagpicket lang sila sa harap ng DOLE, meron silang megaphone,, sinasabihan lang nila si Secretary to intercede megaphone on their behalf. The strike is illegal. Declaring and staging protest rallies in front of government offices may constitute an illegal strike. In the cases of Toyota Motor v. NLRC   and Solidbank v. Garnier , where the protest actions were staged in front of the Office of the DOLE Secretary in Intramuros, the Court pronounced that the concerted mass actions was a strike and not a legitimate exercise of their right to express dissatisfaction or right to peaceably assemble and petition the government for redress of grievances. (Chan 2019)

189. Majority Majority of strike vote v. majority in SEBA Majority of strike vote Majority in SEBA Majority of total union Majority of bargaining unit membership in the must have voted bargaining unit concerned 190. Purpose Purpose of the notice to strike vote? How about a Strike vote report? Notice of Strike Vote Strike Vote Report 1. To inform the NCMB of To ensure that a strike vote the intent of the union to was indeed taken and in the conduct a strike vote event that the report is 2. To give the NCMB ample time to decide on whether or not there is a need to

false, to afford the members an opportunity to take the appropriate remedy before it is too late.

supervise the conduct of the strike vote to prevent any acts of violence and/or irregularities attendant thereto 3. Should the NCMB decide on its own initiative or upon the request of an interested party, including the employer, to supervise the strike vote, to give it ample time to prepare for the deployment of the requisite personnel, including peace officers if need be. (Chan 2019)

191.  What What is the duration of a strike? 192.  What What is the effect of an illegal strike? Article 279(a) of the Labor Code provides that 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. 193.  What What if the employee says it is freedom of expression through picketing. Is the contention valid? No. While workers have the right to peaceful picketing, no person engaged in picketing is allowed to commit any act of violence, coercion, intimidation or to obstruct the free ingress to or egress from the employer’s premises for lawful purposes or to obstruct public thoroughfares. (Chan 2019) 194.  A Assume ssume that the strike was illegal, can the employer terminate terminat e all employees who participated therein? Article 279(a) of the Labor Code provides that 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. Union officers may be validly terminated from employment for their participation in an illegal strike, while union members have to participate in and commit illegal acts for them to lose their employment status. (NUWHRAIN-APL-IUF Dusit Hotel Nikko Chapter v. CA) We stress that the law makes a distinction between union members and union officers. A worker merely participating in an illegal strike may not be terminated from employment. It is only when he commits illegal acts during a strike that he may be declared to have lost employment status. In contrast, a union officer may be terminated from employment for knowingly participating in an illegal strike or participates in the commission of illegal acts during a strike. The law grants the employer the option of declaring a

 

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Labor Relations union officer who participated in an illegal strike as having lost his employment. It possesses the right and prerogative to terminate the union officers from service. (Visayas Community Medical Center v. Yballe) Otherwise, the workers will simply refuse to return to their work and cause a standstill in the company operations while retaining the positions they refuse to discharge and preventing the management from filling up their positions. (Steel Corporation of the Philippines v. SCP Employees Union National Federation of Labor Unions)

K. Declaring and staging a strike in violation of a TRO or an injunction order; L. Declaring and staging a strike after the conversion of the notice of strike into a preventive mediation case; M. Declaring and staging a strike prohibited by law; N. Declaring and staging a strike by a minority union; O. Declaring and staging a strike by an illegitimate union;

The rationale on the heavier penalty imposed on union officers is discussed in the case of Ramirez v. Polyson Industries, where the Court held that the economic weapon of strike is so critical that the law imposes the supreme penalty of dismissal on union officers who irresponsibly participate in an illegal strike and union members who commit unlawful acts during a strike. The responsibility of the union officers, as main players in an illegal strike, is greater than that of the members as the union officers have the duty to guide their members to respect the law.

P. Declaring and staging a strike in violation of the Company Code of Discipline which prohibits the conduct of illegal strikes or concerted actions; Q. Declaring and staging a strike by dismissed employees; R. Declaring and staging protest rallies in front of government offices may constitute an illegal strike; S. Declaring and staging a Welga ng Bayan ; and

195. Prohibited Prohibited activities? Based on the law, rules and jurisprudence, the following is a rundown of the various acts that are considered prohibited: A. Declaring and staging a strike without complying with the procedural but mandatory requisites; B. Declaring and staging a strike without first having bargained collectively; C. Declaring and staging a strike based on non-strikeable or invalid grounds;

T. Declaring and staging a strike in bad faith. (Chan 2019)

196.  Union Union X followed the law in staging a strike. During the strike, a member fought with the barangay captain in front of the company doors, thereby blocking ingress/egress. Is the strike converted from legal to illegal? No, the strike is still legal. Stationary picket and the use of means like placing of objects to constitute permanent blockade or to effectively close points of entry or exit in company premises are not allowed by law. (Chan 2019)

D. Declaring and staging a strike for unlawful purpose; E. Declaring and staging a strike in violation of the “no strike, no lockout clause” clause ” in the CBA; F. Declaring and staging a strike without submitting the issues to the GM or VA prescribed in the CBA or failing to exhaust the steps provided therein; G. Declaring and staging a strike while conciliation and mediation proceedings are ongoing at the NCMB; H. Declaring and staging a strike based on issues already brought to voluntary or compulsory arbitration; I. Declaring and staging a strike during the pendency of a case involving the same ground/s cited in the notice of strike or lockout; J. Declaring and staging a strike in defiance of an assumption ass umption or certification or return-to-work order;

197.  What What if it involves a personal squabble? Di nagbayad ng utang si member kay barangay captain, will your answer be the same? Yes, the strike will still be legal. 198.  Assuming Assuming that the workers are staging a valid strike, can the employer hire new employees to replace the striking workers? No, Article 279(a) provides 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.

 

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Labor Relations 199. Assuming Assuming the employer hired replacement workers. Can the replacement workers attain the status of regular employees under Article 295? Paano pag nagbalik na yung striking workers, may redundancy na? Or can the employer already terminate the services of these replacement workers? Yes, the replacement workers will not attain the status of regular status because they are hired for the specific purpose of exercising the functions of striking employees. 200. M Maga-apply aga-apply ba sa replacement workers yung 292(b)? Can their services be immediately i mmediately termina terminated? ted? Bibigyan ba sila ng separation pay? 201. Who Who is a strike breaker? A person who obstructs, impedes or interferes with by force, violence, coercion, threats or intimidation, any peaceful picketing by employees during any labor controversy or in the exercise of the right to selforganization or collective bargaining, or shall aid or abet such obstruction or interference. (Article 279(b)) The term “strike“strike-breaker,” sometimes derogatorily called a scab, blackleg, knobstick , may refer to any of the following:

A. A person who continues to work during a strike or refuses to join a strike; B. A union member who refuses to strike or who returns to work before a strike is ended or settled; C. A non-employee who is brought into the unionized facility to replace, temporarily or permanently, a union member who chose to go on strike; D. A person who obstructs, impedes, interferes by force, violence, coercion, threats or intimidation, any peaceful picketing by employees during any labor controversy or in the exercise of the right to self-organization or collective bargaining. (Chan 2019)

202. What What is a picket? Picketing involves merely the marching to and fro at the premises of the employer, usually accompanied by the display of placards and other signs making known the facts involved in a labor dispute. As applied to a labor dispute, to picket means the stationing of one or more persons to observe and attempt to observe. The purpose of pickets is said to be a means of peaceable persuasion. (Sta. Rosa Coca-Cola CocaCola Plant Employees’ Union v, Coca-Cola Coca -Cola Bottlers Philippines, Inc.)  203. Requisites Requisites of a valid picket Article 279(e) of the Labor Code provides that no person engaged in picketing shall commit any act of violence, coercion or intimidation or obstruct the free ingress or egress from the employer’s premises for lawful purposes or obstruct public thoroughfares.

The procedural but mandatory requisites that must be complied with before a valid strike may be staged are not applicable to picketing. The only requirement to make picketing valid and legal is that it should be peacefully conducted. (Chan 2019)

204.  Salaries Salaries during strike The general rule is that backwages shall not be awarded in an economic strike on the principle that “a fair day’s wage” accrues only only for a “fair day’s labor.” Even in cases of ULP strikes, award of backwages rests on the court’s discretion and only in exceptional instances. Jurisprudential law, however, recognizes several exceptions to the “no backwages rule,” to wit: (1) When the employees were illegally locked to thus compel them to stage 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 nonstrikers who were also criminally charged in court; or (4) When the workers who staged a voluntary ULP strike offered to return to work unconditionally but the employer refused to reinstate them. (Philippine Diamond Hotel and Resort, Inc. v. Manila Diamond Hotel Employees Union) 

205.  When When can the SOLE assume or certify a case? DO40-G-03 provides that when a labor dispute causes or is likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same to the NLRC for compulsory arbitration, provided, that any of the following conditions are present: A. Both parties have requested the Secretary of Labor and Employment to assume jurisdiction over the labor dispute; or  B. After a conference called by the Office of the Secretary of Labor and Employment on the propriety of its issuance, motu proprio or upon a request or petition by either parties to the labor dispute.

206.  What What do you mean by “Industry indispensable to national interest”? Is there a criteria? There are no criteria. criteria. What constitutes “indispensable industry” is based upon the discretion of the Secretary of Labor. However, the President of the Philippines shall not be precluded from determining industries which in his opinion are indispensable to the national interest.

 

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Labor Relations 207. Strike Strike of hospital workers? DO40-G-03 provides that in labor disputes adversely affecting the continued operation of hospitals, clinics or medical institutions, it shall be the duty of the stiking union or locking out employer to provide and maintain an effective skeletal workforce of medical and other health personnel, whose movement and services shall be unhampered and unrestricted, as are necessary to ensure the proper and adequate protection of the life and health of its patients, most especially emergency cases, for the duration of the strike or lockout. To operationalize this, it is mandated mand ated that: A. The striking union or employer involved in the lockout is obliged to maintain an effective skeletal force during the strike or lockout. The movement of the skeletal force shall be unhampered and unrestricted. B. The striking union or employer involved in the lockout shall ensure proper and adequate protection of the life and health of patients particularly in emergency cases.

208. Can the SOLE assume jurisdiction automatically? No, any of the following conditions must be present first: A. Both parties have requested the Secretary of Labor and Employment to assume jurisdiction over the labor dispute; or B. After a conference called by the Office of the Secretary of Labor and Employment on the propriety of its issuance, motu proprio or upon a request or petition by either parties to the labor dispute.

209. How How about a hospital? That is an industry indispensable to national interest. Nakita ni Secretary, pauwi siya ng bahay, na nagi-strike yung mga employees ng certain hospital. Pwede ba siya mag-issue agad ng certification or assumption order? No. DO40-G-03 provides that when a labor dispute causes or is likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same to the NLRC for compulsory arbitration, provided, that any of the following conditions are present: A. Both parties have requested the Secretary of Labor and Employment to assume jurisdiction over the labor dispute; or B. After a conference called by the Office of the Secretary of Labor and Employment on the propriety of its issuance, motu proprio or upon a request or petition by either parties to the labor dispute.

NB: The above answer is the one adhered to by Atty. Golangco. However, Chan 2019  provides that in cases of strikes in hospitals, clinics and medical institutions, the DOLE Secretary may immediately assume, within 24 hours from knowledge of the occurrence of such strike or lockout,  jurisdiction over the same or certify it to the NLRC for compulsory arbitration.

210.   Effect of certification/assumption order The assumption of jurisdiction or certification to the NLRC of a labor dispute has the following effects: A. On intended or impending strike or lockout  –  –   Upon assumption/certification, the intended or impending strike or lockout is automatically enjoined, notwithstanding the filing of any motion for reconsideration of the assumption/certification order or the non-establishment of any such motion which may have been duly submitted to the Office of the DOLE Secretary. B. On actual strike or lockout  –  –   If a work stoppage has already taken place at the time of the assumption/certification, all striking or locked-out employees shall immediately return to work and the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. C. On cases already filed or may be filed – filed  – All  All cases between the same parties, except where the assumption/certification order specifies otherwise, including the issues submitted for arbitration which are already filed or may be filed and are relevant to or are proper incidents of the certified case, are considered subsumed or absorbed by the assumed/certified case. D. On other pending cases  –  –   The parties to an assumed/certified case, under pain of contempt, are required to inform their counsels and the DOLE Secretary/NLRC Division concerned, as the case may be, of all pending cases that are related to the assumed/certified case before it. (Chan 2019)

211.  What What is the effect of defiance of certification order? The unequivocal rule is that participating in a strike undertaken in defiance of the order of the SOLE results in the loss of employment status. 212.  D Do o we still have to distinguish between an officer and a member? No, the need for distinction is only in case of participation in an illegal strike, not for defiance of certification order. Defiance of certification order is in itself a prohibited pr ohibited activity for which both officer and member must be dealt with equally. Defiance of the assumption order or a return-to-work order by a striking employee, whether a union officer or a

 

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Labor Relations member, is an illegal act and, therefore, a valid ground for loss of employment status. The assumption of jurisdiction by the SOLE over labor disputes causing or likely to cause a strike or lockout in an industry indispensable to the national interest is in the nature of a police power measure. (Manila Hotel Employees Association v. Manila Hotel Corporation) In defiance of assumption/certification order or return-towork order, there is no distinction as the very act of defiance of such order would result in the termination of employment, irrespective of whether the defiant worker is a union officer or an ordinary union member. This is so because once the DOLE Secretary assumes jurisdiction over a labor dispute or certifies it to the NLRC for compulsory arbitration, such jurisdiction should not be interfered with by the application of the coercive processes of a strike. (Chan 2019)

213. Payroll Payroll Reinstatement Order upon assumption of SOLE, valid? No, actual reinstatement is the general rule and payroll reinstatement is only an exception. The phrase “under the same terms and conditions” makes it clear that the norm is actual reinstatement, not payroll reinstatement,, and this is consistent with the idea that any reinstatement work stoppage or slowdown in that particular industry can be detrimental to the national interest . - With respect to the Secretary’s Order Order allowing payroll reinstatement instead of actual reinstatement for the individual respondents herein, an amendment to the previous Orders issued by her office, the same is usually not allowed. Article 263(g) of the Labor Code aforementioned states that all workers must immediately return to work and all employers must readmit all of them under the same terms and conditions prevailing before the strike or lockout. The phrase “under the same terms and conditions” makes it clear that the norm is actual reinstatement. This is consistent with the idea that any work

impracticable or otherwise not conducive to attaining the purposes of the law. The “superseding circumstances” mentioned by the Acting Secretary of Labor no doubt refer to the final decision of the panel of arbitrators as to the confidential nature of the positions of the twelve private respondents, thereby rendering their actual and physical reinstatement impracticable and more likely to exacerbate the situation. The payroll reinstatement in lieu of actual reinstatement ordered in these cases, therefore, appears justified as an exception to the rule until the validity of their termination is finally resolved. This Court sees no grave abuse of discretion on the part of the Acting Secretary of Labor in ordering the same. Furthermore, the issue has not been raised by any party in this case. (University of Immaculate Concepcion v. Secretary of Labor)

214.  YSS YSS Employees Union v. YSS Laboratories, Inc. In order to effectively achieve such end, the assumption or certification order shall have the effect of automatically enjoining the intended or impending strike or lockout.  - The grant of these plenary powers to the Secretary of Labor makes it incumbent upon him to bring about soonest, a fair and just solution to the differences between the employer and the employees, so that the damage such labor dispute might cause upon the national interest may be minimized as much as possible, if not totally averted, by avoiding stoppage of work or any lag in the activities of the industry or the possibility of those contingencies that might cause detriment to the national interest. In order to effectively achieve such end, the assumption or certification order shall have the effect of automatically enjoining the intended or impending strike or lockout. Moreover, if one has already taken place, all striking workers shall immediately return to work, and the employer shall immediately resume operations and readmit all

stoppage or slowdown in that particular industry can be detrimental to the national interest.

workers under the same terms and conditions prevailing before the strike or lockout.

 As an exception to the rule, payroll reinstateme reinstatement nt must rest on special circumstances that render actual reinstatement impracticable or otherwise not conducive to attaining the purposes of the law . - In ordering payroll reinstatement in lieu of actual reinstatement, then Acting Secretary of Labor Jose S. Brillantes said:

YSS Laboratories’ vigorous insistence on the exclusion of the retrenched employees from the coverage of the return-towork order seriously impairs the authority of the Secretary of Labor to forestall a labor dispute that he deems inimical to the national economy. The Secretary of Labor is afforded plenary and broad powers, and is granted great breadth of discretion to adopt the most reasonable and expeditious way of writing finis to the labor dispute.

“Anent the Union’s Motion, we find  find   that superseding circumstances would not warrant the physical reinstatement of the twelve (12) terminated employees. Hence, they are hereby ordered placed under payroll reinstatement until the validity of their termination is finally resolved. “  “  As an exception to the rule, payroll reinstatement must rest on special circumstances that render actual reinstatement

The Labor Secretary’s certification for compulsory arbitration is not intended to interfere with the management’s rights but to obtain a speedy settlement of

the dispute. - When the Secretary of Labor directed YSS Laboratories to accept all the striking workers back to work, the Secretary did not exceed his jurisdiction, or gravely abuse the same. It is significant at this point to point out that grave abuse of discretion implies a capricious and

 

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Labor Relations whimsical exercise of judgment. Thus, an act may be considered as committed in grave abuse of discretion when the same is performed in a capricious or whimsical exercise of judgment, which is equivalent to lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of a positive duty or to a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or personal hostility. In the case at bar, there is no showing that the assailed orders were issued in an arbitrary or despotic manner. The Orders dated 11 May 2001 and 9 June 2001 were issued by the Secretary of Labor, with the end in view of preserving the status quo ante while the main issues of the validity of the retrenchment and legality of the strike were being threshed out in the proper forum. This was done for the promotion of the common good, considering that a lingering strike could be inimical to the interest of both employer and employee. The Secretary of Labor acts to maintain industrial peace. Thus, his certification for compulsory arbitration is not intended to interfere with the management’s rights but to obtain a speedy settlement of the dispute.

The determination of who among the strikers could be admitted back to work cannot be made to depend upon the discretion of the employer . - The determination of who among the strikers could be admitted back to work cannot be made to depend upon the discretion of employer, lest we strip the certification or assumption-of-jurisdiction orders of the coercive power that is necessary for attaining their laudable objective. The return-to-work order does not interfere with the management’s prerogative, but merely regulates it when, in the exercise of such right, national interests will be affected. The rights granted by the Constitution are not absolute. They are still subject to control and limitation to ensure that they are not exercised arbitrarily. The interests of both the employers and employees are intended to be protected and not one of them is given undue preference.

215. Biflex Biflex Philippines, Inc. Labor Unions v. Filflex Industrial Manufacturing Corporation Employees who have no labor dispute with their employer but who, on a day they are scheduled to work, refuse to work and instead join a welga ng bayan, commit an illegal work stoppage.  - That petitioners staged a work stoppage on October 24, 1990 in conjunction with the welga ng bayan organized by the labor sector to protest the accelerating prices of oil, it is not disputed. Stoppage of work due to welga ng bayan is in the nature of a general strike, an extended sympathy strike. It affects numerous employers including those who do not have a dispute with their employees regarding their terms and conditions of employment.

Employees who have no labor dispute with their employer but who, on a day they are scheduled to work, refuse to work and instead join a welga ng bayan commit an illegal work stoppage. 

Where there is no showing that the employees notified their employer of their intention, or that they were allowed by the latter, to join the welga ng bayan, their work stoppage is beyond legal protection.  - Even if petitioners’  joining the welga ng bayan were considered merely as an exercise of their freedom of expression, freedom of assembly or freedom to petition the government for redress of grievances, the exercise of such rights is not absolute. For the protection of other significant state interests such as the “right of  enterprises   enterprises to reasonable returns on investments, and to expansion and growth” enshrined in the 1987 Constitution must also be considered, otherwise, oppression or self-destruction of capital in order to promote the interests of labor would be sanctioned. And it would give imprimatur to workers’ joining demonstrations/rallies even before affording the employer an opportunity to make the necessary arrangements to counteract the implications of the work stoppage on the business, and ignore the novel “principle “princip le of shared responsibility between workers and employers” aimed at fostering industrial peace. There being no showing that petitioners notified respondents of their intention, or that they were allowed by respondents, to join the welga ng bayan on October 24, 1990, their work stoppage is beyond legal protection.

216.  Sta. Sta. Rosa Coca-cola Plant Employees’ Union v. Coca -Cola Bottlers Phils. Inc. The bare fact that they were given Mayor’s permit is not conclusive evidence that their action/activity did not amount to a strike.- Petitioners notified the respondent of their intention to stage a strike, and not merely to picket. Petitioners’ insistence to stage a strike is evident in the fact that an amended notice to strike was filed even as respondent moved to dismiss the first notice. The basic elements of a strike are present in this case: 106 members of petitioner Union, whose respective applications for leave of absence on September 21, 1999 were disapproved, opted not to report for work on said date, and gathered in front of the company premises to hold a mass protest action. Petitioners deliberately absented themselves and instead wore red ribbons, carried placards with slogans such as: “YES KAMI SA STRIKE,” “PROTESTA KAMI,” “SAHOD, KARAPATAN NG MANGGAGAWA IPAGLABAN,” IP AGLABAN,” “CBA“CBA-’WAG BABOYIN,” “STOP UNION BUSTING.” They marched to and fro in front of the company’s premises during working hours. Thus, petitioners engaged in a concerted activity which already affected the company’s operations. The mass concerted activity constituted a strike. The bare fact that petitioners were given a Mayor’s permit is not conclusive evidence that their action/activity did not amount to a strike. The Mayor’s description of what

 

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Labor Relations activities petitioners were allowed to conduct is inconsequential. To repeat, what is definitive of whether the action staged by petitioners is a strike and not merely a picket is the totality of the circumstances surrounding the situation.

217. Ramirez Ramirez v. Polyson Industries It is not necessary that any fixed number of employees should quit their work in order to constitute the stoppage a strike, and the number of persons necessary depends in each case on the peculiar facts in the case and no definite rule can be laid down. - The Court is not persuaded by petitioners’ petitione rs’ contention that they are not guilty of “illegal concerted activity” as they claim that this term contemplates a “careful planning of a considerable number of participants to insure that the desired result is attained.” Nothing in the law requires that a slowdown be carefully planned and that it be participated in by a large number of workers. The essence of this kind of strike is that the workers do not quit their work but simply reduce the rate of work in order to restrict the output or delay the production of the employer. It has been held that while a 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 persons 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. Furthermore, it is not necessary that any fixed number of employees should quit their work in order to constitute the stoppage a strike, and the number of persons necessary depends in each case on the peculiar facts in the case and no definite rule can be laid down. As discussed above, petitioners engaged in slowdown when they induced two of their coworkers to quit their scheduled overtime work and they accomplished their purpose when the slowdown resulted in the delay and restriction in the output of Polyson on June 8, 2011.

finding that such workers committed illegal acts during the period of the illegal strikes. The petitioners were terminated for joining a strike that was later declared to be illegal. The NLRC ordered their reinstatement or, in lieu of reinstatement, the payment of their separation pay, because they were mere rank-and-file workers whom the Union’s officers had misled into joining the illegal strike. They were not unjustly dismissed from work. Based on the text and intent of the two aforequoted provisions of the Labor Code, therefore, it is plain that Article 279(a) is the applicable one.

That backwages are not granted to employees  participating in an illegal strike simply accords with the reality that they do not render work for the employer during the period of the illegal strike. - The petitioners argue that the finding of no abandonment equated to a finding of illegal dismissal in their favor. Hence, they were entitled to full backwages. The petitioners’ argument cannot be sustained. The petitioners’ petitioners’ participation in the illegal strike was precisely what prompted PINA to file a complaint to declare them, as striking employees, to have lost their employment status. However, the NLRC ultimately ordered their reinstatement after finding that they had not abandoned their work by joining the illegal strike. They were thus entitled only to reinstatement, regardless of whether or not the strike was the consequence cons equence of the employer’s ULP,  ULP,  considering that a strike was not a renunciation of the employment relation. As a general rule, backwages are granted to indemnify a dismissed employee for his loss of earnings during the whole period that he is out of his job. Considering that an illegally dismissed employee is not deemed to have left his employment, he is entitled to all the rights and privileges that accrue to him from the employment. The grant of backwages to him is in furtherance and effectuation of the public objectives of the Labor Code, and is in the nature of a command to the employer to make a public reparation for his illegal dismissal of the employee in violation of the Labor Code.

218. Escario Escario v. NLRC and Pinakamasarap Corp.  Article 279(a) authorizes the award of full backwages only when the termination of employment is a consequence of an unlawful lockout . - Contemplating two causes for the dismissal of an employee, that is: (a) unlawful lockout; and (b) participation in an illegal strike, the third paragraph of Article 279(a) authorizes the award of full backwages only when the termination of employment is a consequence of an unlawful lockout. On the consequences of an illegal strike, the provision distinguishes between a union officer and a union member participating in an illegal strike. A union officer who knowingly participates in an illegal strike is deemed to have lost his employment status, but a union

219.  Manila Manila Hotel Employees Association v. Manila Hotel Corporation Once the Secretary of Labor and Employment (SOLE)

member who is merely instigated or induced to participate in the illegal strike is more benignly treated. Part of the explanation for the benign consideration for the union member is the policy of reinstating rank-and-file workers who are misled into supporting illegal strikes, absent any

assumes jurisdiction over a labor dispute, such jurisdiction should not be interfered with by the application of the coercive processes of strike or lockout. - The Court has consistently ruled in a long line of cases spanning several decades that once the SOLE assumes jurisdiction over a

That backwages are not granted to employees participating in an illegal strike simply accords with the reality that they do not render work for the employer during the period of the illegal strike. 

 

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Labor Relations labor dispute, such jurisdiction should not be interfered with by the application of the coercive processes of a strike or lockout. Defiance of the assumption order or a return-towork order by a striking employee, whether a union officer or a member, is an illegal act and, therefore, a valid ground for loss of employment status. The assumption of jurisdiction by the SOLE over labor disputes causing or likely to cause a strike or lockout in an industry indispensable to the national interest is in the nature of a police power measure. In this case, the SOLE sufficiently justified the assumption order, thus: “The Hotel is engaged in the hotel and restaurant business and one of the de luxe hotels operating in Metro Manila catering mostly to foreign tourist groups and businessmen. It serves as venue for local and international conventions and conferences. The Hotel provides employment to more than 700 employees as well as conducts business with entities dependent on its continued operation. It also provides substantial contribution to the government coffers in the form of foreign exchange earnings and tax payments. Undoubtedly, a work stoppage thereat will adversely affect the Hotel, its employees, the industry, and the economy as a whole. At this critical time when efforts of the present administration are seriously focused on preserving the economic gains achieved and ensuring that existing jobs are maintained, it is the utmost concern of this Office to avoid work disruption that might result to the firm’s closure particularly so when an alternative mechanism obtains to resolve the the parties’ differences.”  differences.” 

220. Improved Improved offer balloting The first paragraph of Article 280 provides that in an effort to settle a strike, the Department of Labor and Employment shall conduct a referendum by secret balloting on the improved offer of the employer on or before the 30th day of the strike. When at least a majority of the union members vote to accept the improved offer the striking workers shall immediately return to work and the employer shall thereupon readmit them upon the signing of the agreement.

221. Improved Improved offer balloting v. decreased offer balloting Improved offer balloting Decreased offer balloting Codal Provision In an effort to settle a strike, In case of a lockout, the the Department of Labor Department of Labor and and Employment shall Employment shall also conduct a referendum by conduct a referendum by secret balloting on the secret balloting on the improved offer of the employer on or before the 30th day of the strike. When at least a majority of the

reduced offer of the union on or before the 30th day of the lockout. When at least a majority of the board of

union members vote to accept the improved offer the striking workers shall immediately return to work and the employer shall thereupon readmit them upon the signing of the agreement. (Article 280, par. 1) 

directors 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 thereupon readmit them upon the signing of the agreement. (Article 280, par. 2) Purpose 1. To determine whether or 1. To determine whether or not the improved offer of not the improved offer of the employer is acceptable the union is acceptable to board of directors or to the union members 2. To ascertain the real trustees or the partners sentiment of the silent 2.To ascertain the real majority of the union sentiment of the silent majority of the union members on strike members on strike. Period of Filing On or before the 30 th day of On or before the 30 th day of the strike the lockout NB: Ito daw kasi yung purpose ng 7 day strike ban kaya natanong

222.  Abaria Abaria v. NLRC  An ordinary striking worker cannot be terminated for mere  participation in an illegal strike. - The above provision makes a distinction between workers and union officers who participate in an illegal strike: an ordinary striking worker cannot be terminated for mere participation in an illegal strike. There must be proof that he or she committed illegal acts during a strike. A union officer, on the other hand, may be terminated from work when he knowingly participates in an illegal strike, and like other workers, when he commits an illegal act during a strike. Considering their persistence in holding picketing activities despite the declaration by the NCMB that their union was not duly registered as a legitimate labor organization and the letter from NFL’s legal counsel informing that their acts constitute disloyalty to the national federation, and their filing of the notice of strike and conducting a strike vote notwithstanding that their union has no legal personality to negotiate with MCCHI for collective bargaining purposes, there is no question that NAMA-MCCH-NFL officers knowingly participated in the illegal strike. The CA therefore did not err in ruling that the termination of union officers Perla Nava, Catalina Alsado, Albina Bañez, Hannah Bongcaras, Ernesto Canen, Jesusa Gerona and Guillerma Remocaldo was valid and justified

 

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Labor Relations 223. NUWHRAIN-APL-IUF NUWHRAIN-APL-IUF Dusit Hotel Nikko Chapter v. CA Payroll reinstatement is a departure from the rule, and special circumstances which make actual reinstatement impracticable must be shown. - It was settled that in assumption of jurisdiction cases, the Secretary should impose actual reinstatement in accordance with the intent and spirit of Art. 263(g) of the Labor Code. As with most rules, however, this one is subject to exceptions. We held in Manila Diamond Hotel Employees’ Union v. Court of Appeals, that payroll reinst reinstatement atement is a departure from the rule, and special circumstances which make actual reinstatement impracticable must be shown. In one case, payroll reinstatement was allowed where the employees previously occupied confidential positions, because their actual reinstatement, the Court said, would be impracticable and would only serve to exacerbate the situation. In another case, this Court held that the NLRC did not commit grave abuse of discretion when it allowed payroll reinstatement as an option in lieu of actual reinstatement for teachers who were to be reinstated in the middle of the first term. We held that the NLRC was merely trying its best to work out a satisfactory ad hoc solution to a festering and serious problem. The peculiar circumstances in the present case validate the Sec Secretary’s retary’s decision to order payroll reinstatement instead of actual reinstatement. It is obviously impracticable for the Hotel to actually reinstate the employees who shaved their heads or cropped their hair because this was exactly the reason they were prevented from working in the first place. Further, as with most labor disputes which have resulted in strikes, there is mutual antagonism, enmity, and animosity between the union and the management. Payroll reinstatement, most especially in this case, would have been the only avenue where further incidents and damages could be avoided. Public officials entrusted with specific  jurisdictions enjoy great confidence from this Court. The Secretary surely meant only to ensure industrial peace as she assumed jurisdiction over the labor dispute. In this case, we are not ready to substitute our own findings in the absence of a clear showing of grave abuse of discretion on her part.

its reputation. reputation. Thus, we hold that the Union’s concerted violation of the Hotel’s Grooming Standards which resulted in the temporary cessation and disruption of the Hotel’s operations is an unprotected act and should be considered as an illegal strike.

Union officers may be validly terminated from employment  for their participation in an illegal strike, while union members have to participate in and commit illegal acts for them to lose their employment status. - Regarding the Union officers and members’ liabilities for their participation in the illegal picket and strike, Art. 279(a), paragraph 3 of the Labor Code provides that “[a]ny 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 x x x.” The law makes a distinction between union officers and mere union members. Union officers may be validly terminated from employment for their participation in an illegal strike, while union members have to participate in and commit illegal acts for them to lose their employment status. Thus, it is necessary for the company to adduce proof of the participation of the striking employees in the commission of illegal acts during the strikes. Union members who participated in an illegal strike but were not identified to have committed illegal acts are entitled to be reinstated to their former positions but without backwages.  - We held in one case that union members who participated in an illegal strike but were not identified to have committed illegal acts are entitled to be reinstated to their former positions but without backwages. We then held in G & S Transport Corporation v. Infante : “With respect to backwages, the principle of a “fair day’s wage for a fair day’s labor” remains as the basic factor in determining the award thereof. If there is no work performed by the employee there can be no wage or pay unless, of course, the laborer was able, willing and ready to work but was illegally locked out, suspended or dismissed or otherwise illegally prevented from working. While it was found that respondents expressed their intention to report back to work, the latter exception cannot apply in this case. In Philippine Marine Officer’s Guild v. Compañia Maritima , as affirmed in Philippine Diamond Hotel and Resort v. Manila Diamond Hotel Employees Union, the Court stressed that for this exception to apply, it is required that the strike be legal, a situation that does not obtain ob tain in the case at bar.” bar. ” 

The Union’s concerted violation of the Hotel’s Grooming Standards which resulted in the temporary cessation and disruption of the Hotel’s operations is an unprotected act and should be considered as an illegal strike. - In view of the Union’s collaborative effort to violate the Hotel’s Grooming Standards, it succeeded in forcing the Hotel to choose between allowing its inappropriately hair styled employees to continue working, to the detriment of its reputation, or to refuse them work, even if it had to cease operations in affected departments or service units, which

224.  VCMC VCMC v. Yballe  Any union officer who knowingly participates in an illegal strike and any worker or union officer who knowingly

in either way would disrupt the operations of the Hotel. This Court is of the opinion, therefore, that the act of the Union was not merely an expression of their grievance or displeasure but, indeed, a calibrated and calculated act designed to inflict serious damage to the Hotel’s Hotel’ s finances or

 participates in the commission commission of illegal acts during a strike may be declared to have lost his employment status.  Paragraph 3, Article 279(a) of the Labor Code provides that “...[a]ny union officer who knowingly participates in an illegal strike and any worker or union officer who knowingly

 

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Labor Relations participates in the commission of illegal acts during a strike may be declared to have lost his employment status...” In the Decision dated December 7, 2011, we declared as invalid the dismissal of MCCH employees who participated in the illegal strike conducted by NAMA-MCCH-NFL which is not a legitimate labor organization. Since there was no showing that the complainants committed any illegal act during the strike, they may not be deemed to have lost their employment status by their mere participation in the illegal strike. On the other hand, the union leaders (Nava group) who conducted the illegal strike despite knowledge that NAMA-MCCH-NFL is not a duly registered labor union were declared to have been validly terminated by petitioner. p etitioner.

There is illegal dismissal when an ordinary striking worker was dismissed for mere participation in the illegal strike. We are not persuaded by respondents’ attempt to dissociate themselves from the Nava group who led the illegal strike. In their motion for reconsideration filed before the NLRC, respondents no longer denied having participated in the strike but simply argued that no termination of employment in connection with the strike “staged by complainants” cannot be legally sustained because MCCHI “did not file a complaint or petition to declare the th e strike of complainants illegal or declare that illegal acts were committed in the conduct of the strike.” Respondents further assailed the NLRC’s finding that they were guilty of insubordination since “the proximate cause of the acts of complainants was the prevailing labor dispute and the consequent resort by complainants of [sic] a strike action.” When the case was elevated to the CA, respondents shifted course and again insisted that they did not participate in the strike nor receive the March 15, 1996 individual notices sent by petitioner to the striking employees. While there was indeed no evidence of any illegal act committed by respondents during the strike, the Labor Arbiter and NLRC were one in finding that respondents actively supported the concerted protest activities, signed the collective reply of union members manifesting that they launched the mass actions to protest management’s refusal to negotiate a new CBA, refused to appear in the investigations scheduled by petitioner because it was the union’s stand that they would only attend these investigations as a group, and failed to heed petitioner’s final directive for them to desist from further taking part in the illegal strike. The CA, on the other hand, found that respondents’ participation  participation  in the strike was limited to the wearing of armbands. Since an ordinary striking worker cannot be dismissed for such mere participation in the illegal strike, the CA correctly ruled that respondents were illegally dismissed. However, the CA erred in awarding respondents full back wages and ordering reinstatement despite the prevailing circumstances.

their

Considering that an illegally dismissed employee is not deemed to have left his employment, he is entitled to all

the rights and privileges that accrue to him from the employment. - As a general rule, back wages are granted to indemnify a dismissed employee for his loss of earnings during the whole period that he is out of his job. Considering that an illegally dismissed employee is not deemed to have left his employment, he is entitled to all the rights and privileges that accrue to him from the employment. The grant of back wages to him is in furtherance and effectuation of the public objectives of the Labor Code, and is in the nature of a command to the employer to make a public reparation for his illegal dismissal of the employee in violation of the Labor Code. The alternative relief for union members who were dismissed for having participated in an illegal strike is the  payment of separation pay in lieu of reinstateme reinstatement. nt. - The alternative relief for union members who were dismissed for having participated in an illegal strike is the payment of separation pay in lieu of reinstatement under the following circumstances: (a) When reinstatement can no longer be effected in view of the passage of a long period of time or because of the realities of the situation; (b) Reinstatement is inimical to the employer’s interest; (c) Reinstatement is no longer feasible; (d) Reinstatement does not serve the best interests of the parties involved; (e) The employer is prejudiced by the workers’ continued employment; (f) Facts that make execution unjust or inequitable have supervened; or (g) Strained relations between the employer and employee.

225.  Jackbilt Jackbilt industries, Inc. v. Jackbilt Employees’ Workers Union-NAFLU-KMU The use of unlawful means in the course of a strike renders such strike illegal.  - Article 264(e) of the Labor Code prohibits any person engaged in picketing from obstructing the free ingress to t o and egress from the employer’s premises. Since respondent was found in the July 17, 1998 decision of the NLRC to have prevented the free entry into and exit of vehicles from petitioner’s compound, respondent’s officers and employees clearly committed illegal acts in the course of the March 9, 1998 strike. The use of unlawful means in the course of a strike renders such strike illegal. Therefore, pursuant to the principle of conclusiveness of judgment, the March 9, 1998 strike was ipso facto illegal. The filing of a petition to declare the strike illegal was thus unnecessary.

 

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Labor Relations Consequently, we uphold the legality of the dismissal of respondent’s officers and employees. Article 264 of the Labor Code further provides that an employer may terminate employees found to have committed illegal acts in the course of a strike. Petitioner clearly had the legal right to terminate respondent’s officers and employees.

226. Philippine Philippine Diamond Hotel and Resort, Inc. v. Manila Diamond Hotel Employees Union Even if the purpose of the strike is valid, the strike may still be held illegal where the means employed are illegal . - It is doctrinal that the exercise of the right of private sector employees to strike is not absolute. Even if the purpose of a strike is valid, the strike may still be held illegal where the means employed are illegal. Thus, the employment of violence, intimidation, restraint or coercion in carrying out concerted activities which are injurious to the rights to property renders a strike illegal. And so is 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. Union officers who stage and participate in an illegal strike are subject to dismissal while ordinary striking workers cannot be dismissed for mere participation in an illegal strike—there must be proof that they committed illegal acts during the strike.  - As the appellate court correctly held, the union officers should be dismissed for staging and participating in the illegal strike, following paragraph 3, Article 279(a) 279(a) of the Labor Code which provides that “. . . [a]ny 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 strike may be declared to have lost his employment status . . .”

credence to summarily dismiss all the union members without them being named or identified….”  identified….”   As reflected above, the photographs show that some of the workers-strikers who joined the strike indeed committed illegal acts— acts—blocking the free ingress to and egress from the Hotel, holding noise barrage, threatening guests, and the like. The strikers were, in a list attached to petitioner’s Position Paper filed with the NLRC, named. The list failed to specifically identify the ones who actually committed illegal acts, however. Such being the case, a remand of the case to the Labor Arbiter, through the NLRC, is in order for the purpose only of determining the respective liabilities of the strikers listed by petitioner. Those proven to have committed illegal acts during the course of the strike are deemed to have lost their employment, unless they have been readmitted by the Hotel, whereas those not clearly shown to have committed illegal acts should be reinstated. r einstated.

227.  Strike Strike during arbitration, valid? No. In the case of Sukhothai Cuisine and Restaurant v. CA , the Court held that strikes held in violation of agreements providing for arbitration are illegal since these agreements must be strictly adhered to and respected if their ends are to be achieved. The rationale behind this prohibition is that once jurisdiction over the labor dispute has been properly acquired by competent authority, that jurisdiction should not be interfered with by the application of the coercive processes of a strike or lockout. (Chan 2019)

VISITORIAL POWER, TRIPARTISM, AND

An ordinary striking worker cannot, thus be dismissed for mere participation in an illegal strike. There must be proof

STATUTORY PROCEDURAL DUE PROCESS

that he committed illegal acts during a strike, unlike a union officer who may be dismissed by mere knowingly participating in an illegal strike and/or committing an illegal act during a strike.

228.  Article 289 Article 289 provides for the visitorial power of the Secretary of Labor and Employment or his duly authorized representative.

Blocking the free ingress to and egress from the workplace, holding noise barrage, threatening guests, and the like, constitute illegal acts during a strike . - The findings of the appellate court are as follows:

It provides that the Secretary of Labor and Employment or his duly authorized representative is hereby empowered to inquire into financial  activities of legitimate labor organizations upon the filing of a complaint under oath and duly supported by the written consent of at least twenty percent (20%) of the total membership of the labor organization concerned and to examine their books of accounts and other records to determine compliance or non-compliance with the law and to prosecute any violations of the law and the union constitution and bylaws:

“In the present case, private respondent Hotel failed to established [sic] by convincing and substantial evidence that these union members who participated in the illegal strike committed illegal acts. Consequently, they cannot be terminated from service for their participation in an illegal strike. Moreover, private respondent Hotel presented as evidence photographs of the striking employees, the question that comes to our mind is: why were these strikers who allegedly participated in illegal acts not identified or named? Instead the arbitral tribunal found it worthy of

Provided, That such inquiry or examination shall not be conducted during the sixty (60) days freedom period nor within the thirty (30) days immediately preceding the date of election of union officials.

 

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Labor Relations 229. What What are the requisites of the exercise? A. Filing of complaint under oath; and B. Duly supported by the written consent of at least 20% of the total membership of the labor l abor organization concerned 230. Visitorial Visitorial power It includes the power: A. To inquire into financial activities of legitimate labor organizations upon the filing of a complaint under oath and duly supported by the written consent of at least 20% of the total membership of the labor organization concerned B. To examine their books of accounts and other records to determine compliance or non-compliance with the law C. To prosecute any violations of the law and the union constitution and by-laws

231. Tripartism Tripartism It is the representation of the three sectors  –  –   the public/government, the employers, and the workers in policy-making bodies of the government. 232. What What is the importance of tripartism? Section 1, Rule II of DO140-14 provides that workers and employers shall, as far as practicable, be represented in decision, consultative and policy-making bodies of the government. 233. NTIPC? NTIPC? The National Tripartite Industrial Peace Council is established to serve as the main consultative body for tripartite advisement and consultation among the labor, employer and government sectors in the formulation, review and implementation of labor, employment and social policies at the national level. 234. Functions of NTIPC A. Formulate, for submission to the President or Congress, tripartite view, recommendations and proposals on labor, economic and social concerns, including the presentation of tripartite positions on relevant bills pending in Congress B. Review existing labor, economic and social policies and evaluate local and international developments affecting them C. Advise the Secretary of Labor and Employment in the formulation or implementation of policies and legislations affecting labor and employment D. Monitor the full implementation and compliance by concerned sectors with the provisions of all international and national tripartite instruments including international conventions and declarations, codes of conduct, social accords and Decent Work Agenda

E. 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 F. Serve as communication channel and a mechanism for undertaking joint programs among government, workers, employers and their organizations toward enhancing labormanagement relations G. Support DOLE agencies in the resolution of industrial disputes H. Coordinate with and render technical assistance/advice to the appropriate agencies or councils in matters relating to labor and employment I. Act as the High Level Tripartite Monitoring Body on the Application of International Labor Standards, particularly ILO Convention on Freedom of Association and Protection of the Right to Organize (No. 87) J. Adopt its own program of activities and rules consistent with development objectives K. Perform such other functions as may be required by the Secretary of Labor and Employment or by law

235.  Article Article 292 (b) The statutory procedural due process is enshrined in Article 292 (b) of the Labor Code, which provides that 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 298 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.

 

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Labor Relations 236. Perez Perez v. PT &T Guiding Principles in Connection with the Hearing Requirement in Dismissal Cases. - The following are the guiding principles in connection with the hearing requirement in dismissal cases: (a) “Ample opportunity to be heard” means any meaningful opportunity (verbal or written) given to the employee to answer the charges against him and submit evidence in support of his defense, whether in a hearing, conference or some other fair, just and reasonable way. (b) A formal hearing or conference becomes mandatory only when requested by the employee in writing or substantial evidentiary disputes exist or a company rule or practice requires it, or when similar circumstances justify it. (c) The “ample opportunity to be heard” standard in the Labor Code prevails over the “hearing or conference” requirement in the implementing rules and regulations.

237. When When is hearing necessary? A. When requested by the employee in writing B. Substantial evidentiary disputes exist C. Company rule or practice requires it D. When similar circumstances justify it

241.  Is Is Article 294 applicable to OFWs? No. They are considered contractual employees. Their employment is governed by the contracts they sign every time they are rehired and their employment is terminated when the contract expires. The exigencies of their work necessitates that they be employed on a contractual basis.  242.  Can Can the Labor Arbiter award reinstatemen reinstatementt and separation pay at the same time? No. The payment of separation pay and reinstatement are exclusive remedies. The payment of separation pay replaces the legal consequences of reinstatement to an employee who was illegally dismissed. (Bani Rural Bank, Inc. v. De Guzman, et al.) 243.  What What is the doctrine of strained relations? Under the circumstances where the relationship of employer to employee is so strained and ruptured as to preclude a harmonious working relationship should reinstatement of the employee be decreed, the latter should be afforded the right to separation pay so that he can be spared the agony of having to work anew with the employer under an atmosphere of antipathy and antagonism and the employer does not have to endure the continued services of the employee in whom it has lost confidence.

BOOK SIX - POST-EMPLOYMENT

In the case of Bank of Lubao, Inc. v. Manabat, the Court held that:

238. Article Article 294 Article 294 provides for the security of tenure. In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. 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

Under the law and prevailing jurisprudence, an illegally dismissed employee is entitled to reinstatement as a matter of right. However, if reinstatement would only exacerbate the tension and strained relations between the parties, or where the relationship between the employer and the employee has been unduly strained by reason of their irreconcilable differences, particularly where the illegally dismissed employee held a managerial or key position in the

benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.  

company, it would be more prudent to order payment of separation pay instead of reinstatement.

239. If If illegally dismissed, what is the employee entitled to? Article 294 provides that 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. 240. What What is reinstatemen reinstatement? t? It is the restoration of the employee to the state from which he has been unjustly removed or separated without loss of seniority rights and other privileges.

Under the doctrine of strained relations, the payment of separation pay is considered an acceptable alternative to reinstatement when the latter option is no longer desirable or viable. On one hand, such payment liberates the employee from what could be a highly oppressive work environment. On the other hand, it releases the employer from the grossly unpalatable obligation of maintaining in its employ a worker it could no longer trust. In such cases, it should be proved that the employee concerned occupies a position where he enjoys the trust and confidence of his employer; and that it is likely that if reinstated, an atmosphere of antipathy and antagonism may be generated as to adversely affect the efficiency and productivity of the employee concerned.

 

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Labor Relations 244. Pangit Pangit yung employee na factory worker. Can the doctrine of strained relations apply? Sabi ng employer pag nakikita niya si employee, hindi niya gusto. The doctrine of strained relations is not applicable because the following requisites are not present: A. The employee concerned occupies a position where he enjoys the trust and confidence of his employer; and B. If reinstated, an atmosphere of antipathy and antagonism may be generated as to adversely affect the efficiency and productivity of the employee concerned. A factory worker does not occupy a position of trust and confidence.

245. What What about in the case of confidential employees? employees? Yes, the doctrine of strained relations will apply because confidential employees occupy a position of trust and confidence. 246. What What are backwages? What is the purpose? Remedy affording the employee a way to recover what he has lost by reason of the unlawful dismissal. The purpose of backwages is the restoration of the past income lost.

247. How How do we compute backwages? The components of backwages are as follows:

backwages are not mutually exclusive and both may be given to respondent. An employee who is illegally dismissed is entitled to the twin reliefs of full backwages and reinstatement. If reinstatement is not viable, separation pay is awarded to the employee. In awarding separation pay to an illegally dismissed employee, in lieu of reinstatement, the amount to be awarded shall be equivalent to one month salary for every year of service. (St. Luke’s Medical Center v. Notario) 

249.   20,000 basic salary 500 CP load 2,000 representation expenses 2,000 transportation allowance 500 rice subsidy 6,000 educational allowance Are all included in the computation of backwages? 250.  Let Let us say messenger siya. So pano kahit di niya gamitin yan, pag illegally dismissed siya, babayaran siya ng transpo allowance? 251.  Are Are productivity bonuses included? Let us say ang performance evaluation niya for the past five years ay “O” for Outstanding. That entitles her to two months worth of salary tapos nadismiss siya from employment. Let’s say the case was dragged for three years. Is he entitled to productivity bonus? Should this be included in the backwages?

A. Salaries or wages computed on the basis of the wage rate level at the time of illegal dismissal

252.  What What wages do we apply? At the time of dismissal or current? At the time of illegal dismissal and not in accordance with the latest, current wage level of the employee’s position. 

B. Allowances and other benefits regularly granted to and received by the employee, such as: th a. Emergency living allowances and 13   month pay mandated under the law

253.  Discuss Discuss the different types of employment employment.. The following are the kinds of employment:

b. Fringe benefits or their monetary equivalent c. Transportation and emergency allowances d. Holiday pay, vacation and sick leaves and SIL e. Just share in the service charges f. Gasoline, car and representation r epresentation allowances g. Any other regular allowances and benefits or their monetary equivalent. (Chan 2019)

a. Regular employees: employees who have been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer (LABOR CODE, Art. 295);

248.  Separation pay and backwages are simultaneously awarded. Is the award valid? Yes.

b. Casual employees: employees who are not regular, project, or seasonal employees (LABOR CODE, Art. 295), and as a general rule, those performing activities not usually necessary or desirable in the employer’s empl oyer’s usual business or trade are casual employees (GMA Network v. Pabriga, G.R. No. 176419, November 27, 2013);  

Where the dismissal was without just cause and there was no due process, Article 279 of the Labor Code, as amended, mandates that the employee is entitled to reinstatement

c. Probationary employees: employees whose employment does not exceed six (6) months from the date the employee started working, unless it is covered by an apprenticeship

without loss of seniority rights and other privileges and full backwages, inclusive of allowances and other benefits, or their monetary equivalent computed from the time the compensation was not paid up to the time of actual reinstatement. The awards of separation pay and

agreement stipulating a longer period (LABOR CODE, Art. 296);  d. Project employees: employees whose employment has been fixed for a specific project or undertaking, the

 

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Labor Relations completion or termination of which has been determined at the time of the engagement of the employee (Gapayao v. Fulo, G.R. No. 193493, July 13, 2013); e. Seasonal employees: employees who work or perform services which are seasonal in nature, and the employment is for the duration of the season (LABOR CODE, Art. 295);  f. Fixed-term employees: employees whose employment contract specifies that the same will last only for a definite period (Brent School v. Zamora, G.R. No. L-48494, February 5, 1990); g. Security guards: any person who offers or renders personal service to watch or secure a residence, business establishment, building, compound, any other area or property; or inspects, monitors, or performs body checks or searches of individuals or baggage and other forms of security inspection (D.O. No. 150-16, Sec. 2(h));  h. Floating status – status – means  means an indefinite period of time when employees do not receive any salary or financial benefit provided by law (Agro Commercial Security Services Agency, Inc. v. NLRC, G.R. Nos. 82823-24, July 31, 1989).  

254.  Regular v. Casual employees Regular Employees who have been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer

Casual Employees who are not regular, project or seasonal employees and as a general rule, those performing activities not usually necessary or desirable in the employer’s usual business or trade

255. Seasonal Seasonal employees Employees who work or perform services which are seasonal in nature and the employment is for the duration of the season. 256. Seasonal Seasonal employee who is rehired for another season continuously, is he a regular employee or a regular seasonal employee? REGULAR SEASONAL - If regular and repeated hiring of the same workers for two separate seasons When the “seasonal” workers are conti nuously nuously and repeatedly hired to perform the same tasks or activities for several seasons or even after the cessation of the season, this length of time may likewise serve as badge of regular employment . - Seasonal employment operates much in the same way as project employment, albeit it involves work or

service that is seasonal in nature or lasting for the duration of the season. As with project employment, although the seasonal employment arrangement involves work that is seasonal or periodic in nature, the employment itself is not automatically considered seasonal so as to prevent the

employee from attaining regular status. To exclude the asserted “seasonal” employee from those classified as regular employees, the employer must show that: (1) the employee must be performing work or services that are seasonal in nature; and (2) he had been employed for the duration of the season. Hence, when the “seasonal” workers are continuously and repeatedly hired to perform the same tasks or activities for several seasons or even after the cessation of the season, this length of time may likewise serve as badge of regular employment. In fact, even though denominated as “seasonal workers,” if these workers are called to work from time to time and are only temporarily laid off during the off-season, the law does not consider them separated from the service during the off-season period. The law simply considers these seasonal workers on leave until re-employed.

Regular seasonal employees should not be confused with regular employees. - The respondents were regularly and repeatedly hired to perform the same tasks year after year. This regular and repeated hiring of the same workers (two different sets) for two separate seasons has put in place, principally through jurisprudence, the system of regular seasonal employment in the sugar industry and other industries with a similar nature of operations. Under the system, the plantation workers or the mill employees do not work continuously for one whole year but only for the duration of the growing of the sugarcane or the milling season. Their seasonal work, however, does not detract from considering them in regular employment since in a litany of cases, this Court has already settled that seasonal workers who are called to work from time to time and are temporarily laid off during the off-season are not separated from the service in said period, but are merely considered on leave until re-employment. Be this as it may, regular seasonal employees, like the respondents in this case, should not be confused with the regular employees of the sugar mill such as the administrative or office personnel who perform their tasks for the entire year regardless of the season. To reiterate, the respondents are regular seasonal employees, as the CA itself opined when it declared that “private respondents who are regular workers with respect to their seasonal tasks or activities and while such activities exist, cannot automatically be governed by the CBA between petitioner URSUMCO and the authorized bargaining representative of the regular and permanent employees.” Citing jurisprudential standards, it then proceeded to explain that the respondents cannot be lumped with the regular employees due to the differences in the nature of their duties and the duration of their work vis-a-vis the operations of the company.   (Universal Robina Sugar Milling Corporation v. Acibo, et al.)  

Seasonal employees may be considered as regular employees. - Regular seasonal employees are those called to work from time to time. The nature of their relationship

 

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Labor Relations with the employer is such that during the off season, they are temporarily laid off; but reemployed during the summer season or when their services may be needed. They are in regular employment because of the nature of their job, and not because of the length of time they have worked. The rule, however, is not absolute. In Hacienda Fatima v. National Federation of Sugarcane Workers-Food & General Trade, the Court held that seasonal workers who have worked for one season only may not be considered regular employees. Similarly, in Mercado, Sr. v. NLRC , it was held that when seasonal employees are free to contract their services with other farm owners, then the former are not regular employees. (Gapayao v. Fulo)

Court, in Brent, laid down the following criteria to prevent the circumvention of the employee’s security of tenure:

257. Can Can a project employee be a regular employee at the same time? GR:  Project employees are not regular employees; their services being needed only when there are projects to be undertaken.

260.  DM DM Consunji v. Gobres  Article 297 inapplicable where project employees are dismissed after the expiration of project employment contracts.  –  –   Unlike in Agabon, respondents, in this case, were not terminated for just cause under Article 282 of the Labor Code. Dismissal based on just causes contemplate acts or omissions attributable to the employee. Instead, respondents were terminated due to the completion of the phases of work for which their services were engaged.

EXC: Where the employment of project employees is extended long after the supposed project has been finished, the employees are removed from the scope of project employees and are considered regular employees. 258. W Will ill repeated hiring of a project employee make that employee a regular employee? Project employees have presumably become regular employees if they are allowed to work beyond the completion of the project or any phase thereof to which they were assigned or after the “day certain” which they and their employer have mutually agreed for its completion. Having become regular employees, they can no longer be terminated on the basis of the completion of the project or any phase thereof to which they were deployed but only for  just and authorized cause, the absence of which will make their termination illegal. (Chan 2019 ) 259. Fixed term employee This is a classification of employment which is not expressly mentioned in the Labor Code but was upheld by the Supreme Court in the case of Brent School, Inc. v. Zamora. Fixed-period employment exists where the employee’s Fixed-period employment contract specifies that the same will last only for a definite period. Thus, under the Brent School, Inc. v. Zamora doctrine, while it was not expressly mentioned in the Labor Code, this Court has recognized a fixed-term type of employment embodied in a contract specifying that the services of the employee shall be engaged only for a definite period, the termination of which occurs upon the expiration of said period irrespective of the existence of just cause and regardless of the activity the employee is called upon to perform. Considering, however, the possibility of abuse by employers in the utilization of fixed-term employment contracts, this

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. (Basan v. Coca-Cola Bottlers)

As project employees, respondents’ termination is governed by Section 1 (c) and Section 2 (III), Rule XXIII (Termination of Employment), Book V of the Omnibus Rules Implementing the Labor Code. Records show that respondents were dismissed after the expiration of their respective project employment contracts, and due to the completion of the phases of work respondents were engaged for. Hence, the cited provision’s requirements of due process or prior notice when an employee is dismissed for just or aut authorized horized cause (under Articles 282 282 and 28 283 3 of tthe he Labor Code Code)) prior to the completion of the project or phase thereof for which the employee was engaged do not apply to this case.

If the termination is brought about the completion of the contract or phase thereof, no prior notice is required . - The Labor Arbiter, the NLRC and the Court of Appeals all found that respondents were validly terminated due to the completion of the phases of work for which respondents’ services were engaged. The above rule clearly states, “If the termination is brought about by the completion of the contract or phase thereof, no prior prior notice is required.” Cioco, Jr. v. C.E. Construction Corporation explained that this is because completion of the work or project automatically terminates the employment, in which case, the employer is, under the law, only obliged to render a report to the DOLE on the termination of the employment. Hence, prior or advance notice of termination is not part of procedural due process if the termination is brought about by the completion of the contract or phase thereof for which the employee was engaged. Petitioner, therefore, did not violate any requirement of procedural due process by

 

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Labor Relations failing to give respondents advance notice of their termination; thus, there is no basis for the payment of nominal damages. In sum, absent the requirement of prior notice of termination when the termination is brought about by the completion of the contract or phase thereof for which the worker was hired, respondents are not entitled to nominal damages for lack of advance notice of their termination.

261. DM DM Consunji v. Jamin Instances when a project or work pool employee is deemed a regular employee. - To reiterate, Jamin’s employment history with DMCI stands out for his continuous, repeated and successive rehiring in the company’s construction projects. In all the 38 projects project s where DMCI engaged Jamin’s services, the tasks he performed as a carpenter were indisputably necessary and desirable in DMCI’s construction business. He might not have been a member of a work pool as DMCI insisted that it does not maintain a work pool, but his continuous rehiring and the nature of his work unmistakably made him a regular employee. In Maraguinot,  Jr. v. NLRC , the Court held that once a project or work pool employee has been: (1) Continuously, as opposed to intermittently, rehired by the same employer for the same tasks or nature of tasks; and (2) These tasks are vital, necessary and indispensable to the usual business or trade of the employer, then the employee must be deemed a regular employee.

Length of time is not the controlling test for project employment . - As We held in the case of D.M. Consunji, Inc. v. NLRC : “Surely, length of time is not the controlling test for project employment. Nevertheless, it is vital in determining if the employee was hired for a specific undertaking or tasked to perform functions vital, necessary and indispensable to the usual business or trade of the employer. Here, [private] respondent had been a project employee several times over. His employment ceased to be coterminous with specific projects when he was repeatedly re-hired re-hired due to the demands of petitioner’s business.” Without doubt, Jamin’s case fits squarely into the employment situation just quoted. 262. Project Project employment When the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of engagement of the employee. The litmus test to determine whether an individual is a project employee lies in setting a fixed period of employment involving a specific undertaking which completion or termination has been determined at the time

of the particular employee’s engagement. (Leyte Geothermal Power Progressive Employees Union v. PNOC)

263.  After After completion of project, is notice to terminate employee employe e required? No. Failure to serve notice of termination of project employment upon the project’s completions would not violate procedural due process. (Chan 2019) If the termination is brought about by the completion of the contract or phase thereof, no prior notice is required. Cioco,  Jr. v. C.E. Construction Corporation  explained that this is because completion of the work or project automatically terminates the employment, in which case, the employer is, under the law, only obliged to render a report to the DOLE on the termination of the employment. Hence, prior or advance notice of termination is not part of procedural due process if the termination is brought about by the completion of the contract or phase thereof for which the employee was engaged. (DM Consunji v. Gobres)

264.  X is a Project employee for 1 year. He was illegally dismissed before the project ends. Will Article 294 apply? If the project or the phase thereof in which the project employee is working has not yet been completed and his services are terminated without just or authorized cause and there is no showing that his services are unsatisfactory, such termination is considered illegal, hence, the project employee is entitled to reinstatement to his former position or substantially equivalent position. If the reinstatement is no longer possible, the employee is entitled to his salaries for the unexpired portion of the project employment agreement. (Chan 2019) 265.  Who Who is a probationary employee employee? ? One who is under observation by an employer to determine whether or not he is qualified for permanent employment. 266.  Requisites of a valid probationary employee The law is clear that in all cases of probationary employment, the employer shall make known to the employee the standards under which he will qualify as a regular employee at the time of his engagement. Where no standards are made known to the employee at that time, he shall be deemed a regular employee.   (Tamson’s Enterprise, Inc. et al. v. Court of Appeals)   267.  How How long is his probationary employment employment Article 296 of the Labor Code provides that probationary employment shall  not exceed six (6) months from the date the employee started working, unless it is  covered by an apprenticeship agreement stipulating a longer period. 268.  6 month probation, can it be extended e xtended? ? The employer and employee may extend by agreement the probationary period of employment beyond 6 months. However, probationary employment cannot be ad infinitum.  

 

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Labor Relations 269. F For or how long can it be extended? Pwedeng 3 years yan? 270. Article Article 297 Article 297 provides for the grounds for termination by the 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 by 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.

271. Requisites Requisites of serious misconduct A. There must be misconduct B. The misconduct must be of such grave and aggravated character C. It must relate to the performance of the employee’s duties D. There must be showing that the employee becomes unfit to continue working for the employer

regulations, but also constitutes gross misconduct. The accusatory and inflammatory language used by an employee towards his employer or superior can be a ground for dismissal or termination. (Sterling Paper Products Enterprises v. KMM-Katipunan)

275.  Fr. Fr. Rector issued an order transferring the Security Guard from Manila to Alabang. SG did not comply on the ground that it would be very inconvenient. Is it a valid ground for dismissal? Yes, it is a valid ground for dismissal under Article 297 (a). Mere inconvenience is not a valid ground to defy a transfer order especially when it is made in good faith 276.  Article Article 297 (b) Gross and habitual neglect by the employee of his duties 277.  Is Is it required that neglect is habitual? As a general rule, negligence must be both gross and habitual to be a valid ground to dismiss. Habituality may be disregarded if negligence is gross or the damage or loss is substantial. (Chan 2019) 278.  SG was caught sleeping while on duty. This is his first offense. While he was sleeping, the school was robbed for P500,00. Can the school terminate the SG based on paragraph (b) of Article 297? Yes, because the negligence is gross or the damage or loss is substantial. 279.  What What are analogous causes? To be valid ground for termination, the following must be present:

272. X and Y are both employees of San Beda. They had an argument inside the company premises and Fr. Rector heard the same. Nagsigawan sila. Will this be a valid ground to terminate their services?

A. There must be act or omission similar to those specified  just causes; and

273. Security Security guard in San Beda. Father enters the gate. The guard says panget si Father. Narinig ni Father, nagsumbong siya kay Father Rector. Will that be a valid ground to terminate the services of the security guard? No, there is no lack of respect which would constitute gross misconduct.

No act or omission shall be considered as analogous cause unless expressly specified in the company rules and regulations or policies. (DO147-15)

274. Will Will your answer be the same if the security guard said it in front of the Father? Sabi niya, “pangit mo, Father!”   Where the offensive words against a superior was directly said to the superior, the utter lack of respect was patent. In such cases the use of insulting and offensive language constituted gross misconduct justifying an employee’s dismissal. The utterance of obscene, insulting or offensive words against a superior is not only destructive of the morale of his co-employees and a violation of the company rules and

B. The act or omission must be voluntary and/or willful on the part of the employees.

280.  Theft Theft of property belonging to another employee Yes, this is an analogous cause because it is similar to Article 247 (d). Atty. G: You have to read the cases kasi mahilig ako sa kaso sa exam. Strikes and Lockouts Take note that the requisites are, even if the procedural, are all substantive. Di ba yung effect nila, pag mali yung pagcompute ng period, it will automatically make the strike illegal. So even if the strike is legal but the union members committed any of the prohibited activities, then it will convert the strike into an illegal strike.

 

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Labor Relations Assumption/Certification Immediate ba ‘yan? Hindi di ba? Sabi sa DO 40-G-13, kelangan may due process, either of the parties filed or pag walang nagfile, ipapatawag niya to determine whether or not the case should be certified. Effect of certification/assumption order, you will no longer distinguish anymore di ba. If you defy the same, it is considered a prohibited act. Sa conduct of an illegal strike or lockout, you have to distinguish pa between a union officer and a union member. Si union member tatanggalin lang siya pag nag-commit siya ng prohibited act. Si union officer if he participated even if hindi siya nag-commit ng prohibited acts, pwede siya tanggalin. Dito, the mere act of defiance kasi is the commission of a prohibited act. So we do not have to distinguish anymore

Reinstatement Do we refer to physical reinstatement or payroll reinstatement? It is only physical reinstatement, however there are exceptions. There is one case na sa school, late na na-assume yung case, in the middle of the semester, pwede pa ba pabalikin yung mga teacher, di ba hindi na kasi prejudicial na sa mga bata. And that’s only one of those cases where the Court allows payroll reinstatement pero ang requirement talaga ng law ay physical reinstatement. Article 292 (b) Yung due process requirement, it refers only to just causes, yung sa Article 297. So ano yung requirement? Two-Notice Rule. First Notice informing the employee that there is a cause of dismissal and affording the employee ample opportunity to be heard; Second Notice informing the employee that termination is already sanctioned to be imposed by the employer. Yung sinasabi ni Perez v. PT &T , yung sa conduct of hearing, when requested by the employee, automatic ba yun na mandatory siya? Hindi di ba? Meron siyang requirement as to form – form  – it  it should be IN WRITING. Let’s say that we have a probationary employee. In addition to 297, 298 and 299, di ba meron siyang additional ground: if he fails to meet the standards set forth in the contract, then his services can be validly terminated. Do we still have to comply with Article 292(b)? Di ba hindi na? Di ba nga inoobserve siya? So pag hindi siya nag-comply, isang notice lang pwede na. But you still have to give him a notice. One notice will still be sufficient. When you talk about due process, di ba merong two aspects: we have substantive and procedural due process. Dapat laging may  just cause or authorized cause and dapat may due process. p rocess. Let’s say may just cause or authorized cause pero walang due process, is the dismissal illegal? Hindi di ba? The dismissal is valid; however the employer is liable to pay nominal damages. Yung amount would vary. Agabon and Jaka. Ano ba yung Agabon, just cause di ba? Kay Jaka, authorized cause. Pero fixed ba yun? Di ba hindi, merong factors to be considered in the case of Sangwoo.

Halimbawa sa first notice serious misconduct tapos during the investigation sabi nila, “ay, hindi pala serious misconduct ‘to, breach of trust and confidence pala.” So sa second notice ang sabi nila “your services are being terminated based on breach of trust and confidence.” confidence.” Valid ba yung termination? Hindi. Walang due process, hindi na-comply. Maybe the ground is valid, there is  just cause, pero di pa rin na-comply yung due process requirements kasi kelangan kung anong nakalagay sa first notice, yun din yung sa notice of dismissal. Iisa lang dapat yan. Because as you know, iba-iba ang elements niyan.

Article 294  Security of tenure. You should know what reinstatement is and what backwages are. Types of Employment Yung types of employment you have to study this very well kasi ito talaga yung laging tinatanong sa bar. Parang every year yata natatanong siya. Usually yan how to determine a regular employee, kung mako-consider ba silang covered by the SSS. So you should know how to identify whether an employee is regular, casual, fixed term, or project employee. Let’s say we have a fixed-term employee, natapos na yung contract niya. To determine a valid fixed term employment, you refer to the case of Brent v. Zamora , andun yung requisites di ba? Let’s say na-comply na -comply yun, and natapos na yung period, kelangan pa ba siya bigyan ng notice na tapos na ang kontrata? Hindi na di ba? Si project employee, kelangan pa? Hindi na rin. Pero ano pa ang additional requirement kay project employee? Kelangan may notice kay DOLE para ma-prove na siya ay project employee. But of course it is not an absolute rule that a person is a project employee even if the company has complied with this notice requirement to DOLE, meron pa ring instances wherein his employment has ripened to regular employment Probationary Employment, six month period. How do we compute? 180 days ang ating basis.

Articles 297 and 298 You have to memorize this by heart. You have to be very careful when you identify a ground. Sa example kanina, si Security Guard he failed to comply with the transfer order, is that a valid ground? Yes. Mere inconvenience is not a valid ground to defy a transfer order especially when it is made in good faith. Wala namang nag-indicate na nag-act in bad faith si employer. Ang issagot niyo dapat it’s a lawful order, it is made in good faith. But let us say ang transfer niya ay abroad, can he refuse the same? Yes he can, and his refusal will not be a valid ground to terminate his services. Pero kung dito lang naman, mag-comply na siya. Gross and habitual neglect of duty, kelangan ba yan laging gross and habitual neglect? Hindi di ba? Although ang conjunction niya ay “and” but when the loss suffered by the company is gross,

 

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Labor Relations hindi na kelangan habitual. Yung example natin kanina si security guard natulog siya tapos nawalan yung company ng 500,000, ibig sabihin hayaan natin matulog si employee tapos manakawan ka nang manakawan ng pera? When the loss is substantial already, when the company suffers substantial loss, habituality may be dispensed with and the employee can be terminated based on paragraph b.

298, iisa lang. (1) Notice to employee 30 days prior to effectivity of termination. Kasi you give that period to give the employee the opportunity to look for a job and to determine the legality of his dismissal or the ground therefor and (2) notice to DOLE. For the disease, di mo naman kelangan ipa-explain sa employee, bakit niya ie-explain eh may sakit nga siya. Sinong kelangan magsecure ng med cert? It is the employer.

There is also this case where the kid died in the school. Although once lang, ang sabi ng Court gross ang loss.

Article 300  Take note of this one. Resignation, forced resignation, and we have constructive dismissal. Mabilis lang yan.

Paragraph C, we only apply this if the employee is holding a position of confidence. Tawag natin sa kanila confidential employees. Who is a confidential employee? One who is entrusted with the care and custody of the employer’s property. This is not the same person who cannot form or join a labor organization ha, please distinguish. Paragraph D. “Immediate member of his family.” Sino ba ‘yan? th 4  degree of consanguinity or affinity. Analogous cases. Alam niyo yung tabachuy na taga-PAL. Another example yung nagnakaw ng property belonging to the coworker. That is an analogous cause kasi di ba pag serious misconduct dapat committed against the employer, so pag nagnakaw siya ng gamit ng co-worker niya, it can fall in analogous causes. Your problem is one of the provisions in DO147-15. That analogous cause should be written in the company personnel policy. Article 298. We have 4 grounds: installation of labor-saving devices, retrenchment, redundancy, and closure of business. Installation of labor-saving devices and redundancy, hindi kelangan i-prove ang loss. Kaya ang separation pay niya, one month pay. Pero yung retrenchment, retrenchment would be the last resort. So prior to resorting to retrenchment, the employer should prove that it is suffering from not merely de minimis losses and that it has set up measure to reduce losses. There’s also this criteria that we have to follow. Sa DO147-15, DO147 -15, yung “last in, first out rule” is one of the criteria. Dati kasi sa mga lumang cases before 2015, wala pa siya, ngayon requirement na siya. With respect to closure of business, kelangan ba may business losses, hindi naman di ba? Pero halimbawa kung yung company nagsa-suffer ng business losses, can it be exempted from paying separation pay? Yes it can, pag may serious business losses na

Resignation – Resignation  – voluntary  voluntary act of employee to sever the relationship for personal reasons Forced Resignation  –  –   he is forced to resign or there is actual directive from the employer to resign from employment Constructive Dismissal  –  –   Ito yung pinapahirapan siya, di pa siya pinapaalis pero yung buhay niya sa office, offic e, let’s say bina-bypass bina-bypass siya, tapos yung office niya naging katabi ng kubeta, or nilipat siya sa dating storage area. So he is forced to terminate the relationship.

Article 301  You have suspension of operation of business. You can recall the case of Manila Mining. Retirement This is a very important provision. How much is the retirement pay? Ang sinasabi ½ month pay is equivalent to 22.5 days. So 15 th days salary and 1/12 of the 13  month pay tapos yung 5 days of SILP. What if the employee is not entitled to SILP? 22.5 days pa rin ba yun? Hindi na. What if the company has a bigger benefit than what is given here? Then the provision in the CBA on retirement pay will prevail than this one. Let’s say yung employee na-dismiss na -dismiss siya on the ground of serious misconduct before his retirement. Let’s say 64 years na siya, tatlong araw na lang magbi-birthday na siya. Can he claim his retirement benefits? Hindi na, because he separated from employment. Take note of the retirement age for underground mining ha, naamend na ‘yan.  ‘yan. 

Prescription of Offenses Take note we have 3 years but for illegal dismissal, 4 years. ULP, 1 year.

talaga.

Article 299  Take note of the grounds. Do we still have to comply with the two-notice rule here? Hindi di ba? Ang two-notice dito saka sa

Also take note of the doctrine of promissory estoppel in Accessories Specialist.

 

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Labor Relations When will the cause of action accrue? Kasi merong mga cases, naalala niyo sa LabRel, na kahit tapos na yung 3 year period  –  –   let’s say may tao na sumakay ng barko tapos nagbigay siya ng pera sa company para ipadala para sa pamilya niya kaya lang hindi pinapadala ng company. The case dragged on for 10 years, nagpadala siya ng demand letter to the company. Sabi ng company we cannot entertain your case anymore because it has already prescribed. So he filed a complaint. And the Court said that the action has not yet prescribed because the cause of action accrued when the company formally refused to give the employee his due.

FINALS QUIZ 281.  Distinguish redundancy from retrenchme retrenchment nt Redundancy Retrenchment Definition under DO147-15 Condition when the services Economic ground for of an employee are in excess dismissing employees and is of what is reasonably resorted to primarily avoid demanded by the actual or minimize business losses requirements of the enterprise or superfluous Requisites A. There must be A. Must be reasonably superfluous positions or necessary and likely to services of employees prevent business losses B. The position or services are in excess of what is reasonably demanded by the actual requirements of the enterprise to operate in an economical and efficient manner C. There must be good faith in abolishing redundant positions D. There must be fair and reasonable criteria in selecting employees to be terminated E. There must be an adequate proof of redundancy such as but not limited to the new staffing pattern, feasibility studies/proposal, on the viability of the newly created positions, job description and the approval by the management of the

B. The losses, if already incurred, are not merely de minimis, but substantial, serious, actual and real, or if only expected, are reasonably imminent C. The expected or actual losses must be proved by sufficient and convincing evidence D. The retrenchment must be in good faith for the advancement of its interest and not to defeat or circumvent the employee’s right to security of tenure E. There must be fair and reasonable criteria in ascertaining who would be dismissed and who would be retained among the employees, such as status, efficiency, seniority, physical fitness, age and financial

restructuring

hardship for certain workers. When resorted to When the services of an Resorted to primarily to employee are in excess of avoid or minimize business what is required by an losses enterprise Business Decline as Requisite Redundancy does not need Presupposes business to be always triggered by a decline as it is resorted to decline in the business. Even prevent serious business if a business is doing well, an losses. employer can still validly dismiss an employee from the service due to redundancy if that employee’s position has already become in excess of what the employer’s enterprise requires. Monetary consequence Employer stands to pay Retrenchment would entail more separation pay if it only half of amount in denominates the personnel reduction program it is implementing as redundancy

Article 298

Employer is required to pay its employees a separation pay equivalent to at least their one month pay or to at least one month pay for every year of service, whichever is higher

282.  Discuss Discuss the case of Accessories Specialist v. Albanza “Promissory Estoppel,” Expl ained  ained .—In light of these circumstances, apply the principle of promissory estoppel, which we is a can recognized exception to the three-year prescriptive period enunciated in Article 291 of the Labor Code. Promissory estoppel may arise from the making of a promise, even though without consideration, if it was intended that the promise should be relied upon, as in fact it was relied upon, and if a refusal to enforce it would virtually sanction the perpetration of fraud or would result in other injustice. Promissory estoppel presupposes the existence of a promise on the part of one against whom estoppel is claimed. The promise must be plain and unambiguous and sufficiently specific so that the court can understand the obligation assumed and enforce the promise according to its terms. In order to make out a claim of promissory estoppel, a party bears the burden of establishing the following elements: (1) a promise was reasonably expected to induce action or forbearance; (2) such promise did, in fact, induce such action or forbearance; and (3) the party suffered detriment as a result.

 

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Labor Relations All the requisites of promissory estoppel are present in this case. Jones relied on the promise of ASI that he would be paid as soon as the claims of all the rank-and-file employees had been paid. If not for this promise that he had held on to until the time of his death, we see no reason why he would delay filing the complaint before the LA. Thus, we find ample justification not to follow the prescriptive period imposed under Article 291 of the Labor Code.

283. Discuss Discuss the case Divine World College of Laoag v. Mina In cases of transfer of an employee, the employer is charged with the burden of proving that its conduct and action are for valid and legitimate grounds such as genuine business necessity and that the transfer is not unreasonable, inconvenient or prejudicial to the employee.—The Constitution and the Labor Code mandate that employees be accorded security of tenure. The right of employees to security of tenure, however, does not give the employees vested rights to their positions to the extent of depriving management of its prerogative to change their assignments or to transfer them. In cases of transfer of an employee, the employer is charged with the burden of proving that its conduct and action are for valid and legitimate grounds such as genuine business necessity and that the transfer is not unreasonable, inconvenient or prejudicial to the employee. If the employer cannot overcome this burden of proof, the employee’s transf e err shall be tantamount to unlawful constructive dismissal. Constructive dismissal is a dismissal in disguise .— Constructive dismissal is a dismissal in disguise. There is cessation of work in constructive dismissal because ‘“continued employment is render ed rendered impossible, unreasonable or unlikely, as an offer involving a demotion in rank or a diminution in pay’ and other benefits.” To be considered as such, an act must be a display of utter discrimination or insensibility on the part of the employer so intense that it becomes unbearable for the employee to continue with his employment. The law recognizes and resolves this situation in favor of employees in order to protect their rights and interests from the coercive acts of the employer. In this case, Mina’s Mina’s transfer clearly amounted to a constructive dismissal. For almost 22 years, he was a high school teacher enjoying a permanent status in DWCL’s high school department. In 2002, he was appointed as an associate professor at the college department but shortly thereafter, or on June 1, 2003, he was appointed as a college laboratory custodian, which is a clear relegation from his previous position. Not only that. He was also divested of his teaching load. His appointment even became contractual in nature and was subject to automatic termination after one year “without any further notification.” Aside from this, Mina was the only one among the high school teachers transferred to the college department who was divested of teaching load. More importantly, DWCL failed failed to show any reason for Mina’s

transfer and that it was not unreasonable, inconvenient, or prejudicial to him.

284.  Weingarten Weingarten rights Weingarten rights guarantee an employee the right to union representation during an investigatory interview. An employee may be represented by the union at an investigatory interview with his or her supervisor when the employee reasonably believes that the interview may lead to a disciplinary action.

285.   May separation pay and retirement benefits be awarded simultaneously? There are cases where both retirement pay and separation pay for authorized cause termination were awarded and ordered paid. The most eloquent example of this situation is  Aquino v. NLRC , where the Supreme Court ordered the payment to the retrenched employees of both separation pay for retrenchment embodied in the CBA as well as the retirement pay provided under a separate Retirement Plan. (Chan 2019) 286.  Discuss Discuss the case of De La Salle Araneta v. Bernardo RA7641 applies to establishments with existing collective bargaining or other agreements or voluntary retirement  plans whose benefits are less than those prescribed in said law .—The Court declared in  Aquino v. National Labor Relations Commission that retirement benefits are intended to help the employee enjoy the remaining years of his life, lessening the burden of worrying for his financial support, and are a form of reward for his loyalty and service to the employer. Retirement benefits, where not mandated by law, may be granted by agreement of the employees and their employer or as a voluntary act on the part of the employer. In the present case, DLS-AU, through Dr. Bautista, denied Bernardo’s claim for retirement benefits because only fullfulltime permanent faculty of DLS-AU are entitled to said benefits pursuant to university policy and the CBA. Since Bernardo has not been granted retirement benefits under any agreement with or by voluntary act of DLS-AU, the next question then is, can Bernardo claim retirement benefits by mandate of any law? We answer in the affirmative. Republic Act No. 7641 is a curative social legislation. It precisely intends to give the minimum retirement benefits to employees not entitled to the same under collective bargaining and other agreements. It also applies to establishments with existing collective bargaining or other agreements or voluntary retirement plans whose benefits are less than those prescribed in said law.

The general coverage of Republic Act (RA) No. 7641 is broad enough to encompass all private sector employees, and part-time employees are not among those specifically exempted from the law .—Based on Republic Act No. 7641,

 

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LABOR LAW REVIEW

Labor Relations its Implementing Rules, and Secretary Quisumbing’s Labor Advisory, Bernardo, as a part-time employee of DLS-AU, is entitled to retirement benefits. The general coverage of Republic Act No. 7641 is broad enough to encompass all private sector employees, and part-time employees are not among those specifically exempted from the law. The provisions of Republic Act No. 7641 and its Implementing Rules are plain, direct, unambiguous, and need no further elucidation. Any doubt is dispelled by the unequivocal statement in Secretary Quisumbing’s Labor Advisory that Republic Act No. 7641 applies to even part-time employees. Under the rule of statutory construction of expressio unius est exclusio alterius, Bernardo’s claim for retirement benefits cannot be denied on the ground that he was a parttime employee as part-time employees are not among those specifically exempted under Republic Act No. 7641 or its Implementing Rules.

287. Enumerate Enumerate and explain the different kinds of employment The following are the kinds of employment: a. Regular employees: employees who have been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer (LABOR CODE, Art. 295); b. Casual employees: employees who are not regular, project, or seasonal employees (LABOR CODE, Art. 295), and as a general rule, those performing activities not usually necessary or desirable in the employer’s employer’s usual business or trade are casual employees (GMA Network v. Pabriga, G.R. No. 176419, November 27, 2013);   c. Probationary employees: employees whose employment does not exceed six (6) months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period (LABOR CODE, Art. 296);  d. Project employees: employees whose 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 (Gapayao v. Fulo, G.R. No. 193493, July 13, 2013); e. Seasonal employees: employees who work or perform services which are seasonal in nature, and the employment is for the duration of the season (LABOR CODE, Art. 295);  f. Fixed-term employees: employees whose employment contract specifies that the same will last only for a definite period (Brent School v. Zamora, G.R. No. L-48494, February 5, 1990); g. Security guards: any person who offers or renders personal service to watch or secure a residence, business establishment, building, compound, any other area or property; or inspects, monitors, or performs body checks or

searches of individuals or baggage and other forms of security inspection (D.O. No. 150-16, Sec. 2(h)); h. Floating status – status – means  means an indefinite period of time when employees do not receive any salary or financial benefit provided by law (Agro Commercial Security Services Agency, Inc. v. NLRC, G.R. Nos. 82823-24, July 31, 1989).

288.  John John Hancock Insurance v. Davis For an employee to be validly dismissed for a cause analogous to those enumerated in Article 282, the cause must involve a voluntary and/or willful act or omission of the employee.—In this case, petitioner dismissed respondent based on the NBI’s finding that the latter stole and used Yuseco’s credit cards. But since the theft was not committed against petitioner itself but against one of its employees, respondent’s misconduct was not n ot work-related and therefore, she could not be dismissed for serious misconduct. Nonetheless, Article 282(e) of the Labor Code talks of other analogous causes or those which are susceptible of comparison to another in general or in specific detail. For an employee to be validly dismissed for a cause analogous to those enumerated in Article 282, the cause must involve a voluntary and/or willful act or omission of the employee. Theft committed by an employee against a person other than his employer, if proven by substantial evidence, is a cause analogous to serious misconduct .—  A cause analogous to serious misconduct is a voluntary and/or willful act or omission attesting to an employee’s moral depravity. Theft committed by an employee against a person other than his employer, if proven by substantial evidence, is a cause analogous to serious seriou s misconduct. Did petitioner substantially prove the existence of valid cause for respondent’s separation? Yes. The labor arbiter and the NLRC relied not only on the af fidavits fidavits of the NBI’s witnesses but also on that of respondent. They likewise considered petitioner’s own investigative findings. Clearly, they did not merely adopt the findings of the NBI but independently assessed evidence presented by the parties. Their conclusion (that there was valid cause for respondent’s separation from employment) was therefore supported by substantial evidence. All things considered, petitioner validly dismissed respondent for cause analogous to serious misconduct.