labor final draft new

Notes from the book of Azucena, the lectures of Atty. Adquillen, Atty. Rodriguez and Atty.Lorenzo, and other review materials.

Labor Law Reviewer 2007 By: Ruby

LABOR LAW

Labor Law – Is a body of statutes, rules, doctrines, which defines state policies regarding labor and employment and also governs the rights and duties of the employer and employee, respecting terms and conditions employment by prescribing standards thereof or by providing legal framework within which these terms and condition and the employment relationship may collectively negotiated, adjusted and administered.

Labor Standards Law – Sets out the minimum terms, conditions and benefits of employment that the employers must provide or comply with and to which employees are entitled as a matter of legal rights.

Labor Relations Law – defines the status, rights and duties including institutional mechanism that governs the individual and collective interactions between the employers and employees and their representatives.

Policies:- Art.3. Declaration of Basic Policy

1. The State shall:a. Promote full employment,b. Ensure equal work opportunities regardless of

sex, age or creedc. Afford protection to labor.d. Regulate the relations between workers and

employers.2. The State shall ensure the right of the workers to:

Just and Humane conditions of workSelf-organization.Security of tenure.Collective bargaining.

- Art.43. Statement of objectives of National Manpower Development program.

1. To develop human resources;2. To establish training institutions; and3. To formulate such integrated plans, policies and

programs that will ensure efficient and proper allocation, development and optimum utilization or the nation’s manpower and thereby promote employment and accelerate economic and social growth.

- Art 211. Declaration of policy: 1. It is the policy of the State;2. To promote free trade unionism as an instrument for

the enhancement of democracy and the promotion of social justice and development; and

3. To foster the free and voluntary organization of a strong and united labor movement.

- Art. XIII, Sec. 3. - Art. XIII, Sec. 14.

Social Justice – “The humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be proximated.”

Police Power – “State’s authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare.”

Seven Basic Rights of Workers: (Art XIII of the Constitution)[POWEERC]

1. Right to Participate in Policy & Decision making process affecting their rights and benefits as may be provided by law.

2. Right to Organize themselves.3. Right to Work under humane conditions.

4. Right to Engage in peaceful concerted activities including strike in accordance with the law.

5. Right to Enjoy security of tenure.6. Right to Receive a living wage7. Right to Conduct collective bargaining or negotiation

with the management.

Individual Constitutional Rights: D – due process of law E – freedom of Expression or freedom of speechA – associationN – non-impairment of contracts and obligationsA – adequate legal assistanceS – speedy disposition of casesI – involuntary servitude

Due process – both substantive and procedural

Freedom of Speech – only in so far as labor is concern- Includes picketing under the limitations

provide for by law

Association – includes the right to join and not to join.- One cannot be compelled to join union, unless

the existence of CBA providing a closed shop agreement, unless further by religious grounds or already a member of another union.

Closed Shop – Only members of the union shall be admitted as an employee of the establishment.

- Violation of which will result to the their termination in accordance to due process provided for by the law.

Non-impairment clause – Free to enter to any contract

Adequate legal assistance – even those that are not lawyer are allowed to represent the aggrieved

Involuntary servitude – No one can be force to work if he do not desire so, but he shall be liable for any damages that may be caused by his refusal to work.

Art. 4. Labor code.“All doubts in the

implementation and interpretation of the provisions of this Code, including its implementing rules and regulations, shall be resolved IN FAVOR OF LABOR..”

If the law is CLEAR, there is NO room for interpretation. It is applicable only in case of doubt or ambiguity in the law or contract entered into by the parties.

RULE: Justice must be served for the deserving, to be dispensed in the light of the facts and applicable law or doctrine

Art. 1702 Civil Code “In case of doubt, all labor legislation and all labor contracts shall be construed in favor of the safety and decent living for the laborer”

- Because employer drafts the contracts, rules and regulations of the company and it is presumed that the drafting is in their favor.

Art. 1700 Civil code: The relation between capital and labor are not merely contractual. They are also impressed with public interest that labor contracts must yield to the common good. Therefore such contracts are not subject to the special laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages, working conditions, hours of labor and similar subjects.

Art. 1703 Civil Code “No contract which practically amounts to involuntary servitude, under any guise or whatsoever, shall be valid.”



Recruitment/Placement Any act of contracting, enlisting, canvassing,

transporting, utilizing, hiring, procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not: Provided that any person or entity which, in any manner, offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment and placement.

GENERAL RULE: No person or entity, other than the public employment offices, shall engage in the recruitment and placement of workers. (Art.16)

Exception: Private Sector participation in the recruitment and placement of workers pursuant to national development objectives and in order to harness and maximize the use of private sector resources and initiative in the development and implementation of a comprehensive employment program. (Art.25)

Management Prerogatives Are Bundle of rights which inhere in the employer that allows

it to manage its business freely and without interference from the government authority, subject only to such limitation as may be imposed by:

- Law- CBA- Fundamental elements of good faith- Fair play - And equity.

Except as limited by special laws, an employer is free to regulate, according to his own discretion and judgment, all aspects of employment including:- Hiring- Work assignments- Work methods- Time, place and manner of work- Tools to be used- Processes to be followed- Supervision of workers- Working regulations- Transfer of employees- Work supervision- Lay-off of workers- Discipline, dismissal and recall of workers

Management Rights1. Right to conduct business.2. Right to prescribe rules.3. Right to select and hire employees.4. Right to transfer or discharge employees.

Art. 212, (m) "Managerial employee" is one who is 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.

Test: Reasonableness of the rules and regulations. Art. 282. Termination by employer . An employer may

terminate an employment for any of the following just 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 representative; and

(e) Other causes analogous to the foregoing.

Power to hire:

- Pre-employment – setting qualification standards or requirements, unless unlawful.

- Employment proper – standards must be in accordance with laws.

Includes changing of working hours. – Justified by the exigencies of the services and it was done in good faith.

Transfer of employees - Requisites:

1. Valid and legitimate reasons to transfer2. No demotion in rank or diminution of his salary,

benefits and other privileges.

- The families, status and concerns of EE must be considered.

- Valid if the nature of the job so requires.- When his transfer is not unreasonable, nor

inconvenient, nor prejudicial to him, and it does not involve a demotion in rank or a diminutions of his salaries, benefits, and other privileges, the employee may not complain that it amounts to a constructive dismissal. Jurisprudence proscribes transfers or reassignments of employees when such acts are unreasonable and cause inconvenience or prejudice to them. [Chu vs. NLRC]

Discrimination prohibited - It shall be unlawful for any employer to discriminate

against any woman employee with respect to terms and conditions of employment solely on the account of their sexes.

- Acts of discrimination:- Payment of a lesser compensation for work of

equal value.- Favoring a male EE over a female EE solely on

the account of their sexes.- It shall be unlawful for an ER to stipulate, as a

condition of employment or continuation of employment, that a woman EE shall not get married, or that upon getting married, a woman EE shall be deemed resigned or separated.

Employment of Children - Children below fifteen years of age shall not be

employed.- Except:

1. When the Child works under the sole responsibility of his parents or legal guardian and where only members of the employer’s family are employed. Provided, however: (a) that the employment neither endangers his life, safety, health and morals, nor impairs his normal development; (b) that the parent or legal guardian shall provide the said minor with the prescribed primary and/or secondary education;

2. Where a child’s employment or participation in public entertainment or information through cinema, theater, radio or television is essential. Provided; the employment contract is concluded by the child’s parents or legal guardian, with the express agreement of the child concerned and approval of DOLE.

Sexual Harassment – any demand, request or requirement of a sexual favor with the use of authority, influence or moral ascendancy, and which is done in work-related or employment environment, education or training environment.

Wages – The remuneration or earnings, however designated, capable of being expressed in terms of money, whether fixed or ascertained on a time, task, piece, or commission basis, or other method of calculating the same, which is payable by an ER to an EE under a written or unwritten



contract of employment for work done or to be done or for services rendered.

- Fixed by Regional Tripartite Wages and Productivity Board (RTWPB) of the respective region, province or industries.

- Prohibition against wages: 1. Interference in disposal of wages2. Withholding of wages and kickbacks3. Deduction to ensure employment or retention

in employment on kickbacks.4. Retaliatory measures5. False payrolls or other record.

Control Test – Whether the employer controls or has reserved the right to control employee not only as to the results of the work to be done but also as to the means and method which the same is to be accomplished. "Among the four (4) requisites", the Supreme Court stresses that "control is deemed the most important that the other requisites may even be disregarded". [Jardin vs.NLRC]

- In the case of Corporal vs. NLRC it was ruled that the owner of the barbershop has control over the barbers and manicurists and therefore the latter are considered employees of the establishment. It is not essential that the employer actually supervised the performance of their duties. It is enough that the employer has the right to wield that power.

Labor-only contracting – (Prohibited by law)1. Where the person supplying the workers to an employer

does not have a substantial capital or investment in the form of tools, equipment, machineries, work premises, among others; and

2. Where the workers recruited and placed by such persons are performing activities which are directly related to the principal business of the employer.

- The contractor or subcontractor merely recruits, supplies or places workers to perform a job, work or service for a principal.

- The failure of the contractor to register with DOLE shall give the presumption that the contractor is engaged in labor-only contracting.

- The law implies that ER-EE relationship between the ER and the EE of the labor only contractor to prevent any violation of the provisions of the Labor Code.

Job Contracting- A person who:

(a) Carries on an independent business and undertakes the contract work on his own account under his own responsibility according to his own manner and method, free from the control and direction of his employer or principal in all matters connected with the performance of the work except as to the results thereof, and

(b) Has substantial capital or investment in the form of tools, equipment, machineries, work premises, and other materials which are necessary in the conduct of the business. [Corporal vs. NLRC]

Coverage – All employees in all establishments, whether for profit or not, except the following employees:

1. Government employees – because terms and conditions of employment are governed by the Civil Service Law, rules and regulation.

2. Managerial Employees – because of their special training and expertise and the value of work cannot be measured in terms of hours.

3. Field personnel – refers to non-agricultural employees who regularly performs their duties away from the principal place of business or branch office of the employer and whose

actual hours of work in the field cannot be determined with reasonable certainty.

4. Members of the family of the employer – because they are dependent on him for support which may exceed the benefits granted by law.

5. Domestic helpers – one who serves for the personal comfort and enjoyment of his employer.

6. Body Guards – person in the personal service of another.

7. Workers paid by results – because their compensation is computed on the basis of the work accomplished.

Normal hours of work – shall not exceed 8 hours a day- If required to work on Sundays, 30% increase on

salary for that day, if special days, 50%, and if special holidays, 30% of his regular wage.

- Health personnel in cities and municipalities with a population of at least 1M or in hospitals and clinics with a bed capacity of at least 100 shall hold regular office hours of 8 hours a days for 5 days a week, exclusive of time for meals.- Except: Where the exigencies of the

service require that such personnel work 6 days or 48 hours in which case they shall be entitled to an additional compensation of at least 30% of their regular wage for work on the 6th day.

- On call – Engage to wait, compensable, but if waiting to be engage, not compensable.

-Night Shift Differentia l – 10 pm to 6 am, entitled to 10% of the

hourly rate except there is a valid and organized CBA.

Overtime Work – service rendered in excess of 8 hours a day.- 25% of the hourly rate shall be added if during

regular workday.- 30% of the hourly rate if during special days,

holidays and rest days.

Rest Day – Not less than 24 consecutive hours after every 6 consecutive working days.

- Management prerogative . However, the management shall respect the preference of the EE as to the rest day when such preference is based on religious ground.

- 30% of his regular wage if he is required to work in his scheduled rest day.

- 30% of his regular wage for the work performed on Sundays or holidays if he has no scheduled workdays and rest day.

- 50% of his regular wage for the work performed on holidays falling on his scheduled rest day.

Single Parent Leave -- Refers to the additional 5-day leave granted to single parents aside from the existing leave incentive already provided by law, free from discrimination with regard to other terms and conditions of contract of employment, liberal in giving time allowance to leave time for their children, housing benefits by giving liberal payment scheme and educational program for them and their children provided they are qualified.

- Parental leave – leave benefit granted to a solo parent EE to enable him/her to perform parental duties and responsibilities where physical presence is required.

- Flexible work schedule – the right granted to a solo parent EE to vary his/her arrival and departure time without affecting the core hours as defined by the ER.



- Children – those living with and dependent upon the solo parent for support who are unmarried, unemployed and below 18 years of age, or even 18 years and above but are incapable of self-support and/or mental and/or physical defect or disability.

Holidays – 2 times pay if required to work, provided EE must not be absent without pay on the working day preceding the holiday, unless the same is his rest day.

- Regular Holidays:- New Year’s day -- Jan 1- Maundy Thursday- Good Friday- Bataan Day / Araw ng Kagitingan – April 9- Labor Day – May 1- Independence Day – Jun 12- National Heroes’ Day – last Sunday of

August- Bonifacio Day – Nov 30- Christmas Day – Dec 25- Rizal Day – Dec 30- Muslim Holidays

- Special Holidays:- Nov 1- Dec 31- Plebiscite day

- If holiday falls on Sunday:- If he worked – he is entitled to30%+100%

additional to 100% regular wage he shall receive for that day.

- If he did not – he is still entitled to 100% regular wage, but without any other additional pays.

Service incentive leave – five days leave with pay for every employee who has rendered at least one year of service.

- Does not apply if EE is:- Already enjoying the said benefits;- Already enjoying vacation leave with pay for at

least 5 days.- Employed in establishments regularly

employing less than 10 employees; and- Employed in establishments exempted from

granting this benefit by the Secretary of Labor.

Vacation and Sick leave – is not a statutorily required but it is a matter of management discretion or a product of CBA. It must be enjoyed by the EE in 1 year otherwise it is deemed waived or forfeited.

Maternity Leave – A female member, who need not be legally married, who has paid for at least 3 months contribution in the 12-month period immediately preceding the semester of her childbirth or her miscarriage shall be paid a daily maternity benefit equivalent to 100% of her average daily salary credit for 60 days or 78 days, in case of caesarian delivery, provided, she shall be paid only for the first 4 deliveries or miscarriage.

Paternity Leave – 7 days with full pay, consisting of basic salary, to all married male employees in the public and private sector.

- Available only for the first 4 deliveries (childbirth, miscarriage, or abortion) of his legitimate spouse with whom the husband is cohabitating.

13 th Month Pay – All rank-and-file employees are entitled to 13th month pay regardless of the amount of basic salary they receive in a month.

- They are entitled to the benefit regardless of their designation or employment status, and irrespective of the method by which their wages are paid, provided that they have worked for at least one month during the calendar year.

Self-Organization

I. Concept of the Right to Self-Organizationb. Constitutional provisions/basis

Art. III Sec 8. The right of the people, including those employed

in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged.

Art XIII Sec 3 Par 2 It shall guarantee the rights of all workers to self-

organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with the law.

c. Underlying reasons- Because of the apparent inequality of the

employees and employers, the state shall protect their rights by allowing them to form, join, or assist labor organization for the purpose of collective bargaining.

- Obtaining better terms and conditions of employment through the collective bargaining and negotiations.

- For securing a fair and just wages and good working conditions for the laborers and for the protection of labor against unjust exaction of capital.

d.Policy of the State on Unionism Art 211. Declaration of policy.

(a) It is the policy of the State(b) To promote free trade unionism as an

instrument for the enhancement of democracy and the promotion of social justice and development;

(c) To foster the free and voluntary organization of a strong and united labor movement;

Art 263STRIKES AND LOCKOUTS Art. 263. Strikes, picketing and lockouts.(a) It is the policy of the State to encourage free

trade unionism and free collective bargaining.

(b) Workers shall have the right to engage in concerted activities for purposes of collective bargaining or for their mutual benefit and protection. The right of legitimate labor organizations to strike and picket and of employers to lockout, consistent with the national interest, shall continue to be recognized and respected. However, no labor union may strike and no employer may declare a lockout on grounds involving inter-union and intra-union disputes.

Art 246Non-abridgement of right to self-

organization. It shall be unlawful for any person to restrain, coerce, discriminate against or unduly interfere with employees and workers in their exercise of the right to self-organization.

Rule 2 sec 1 D.O.40It is the policy of the State to promote the free

and responsible exercise of the right to self organization through establishment of a simplified mechanism for the speedy registration of labor unions and workers associations, determination of representation status and resolution of inter/intra-union and other related labor relations



disputes. Only legitimate or registered labor union shall have the right to represent their members for collective bargaining and other purposes. Workers’ association shall have the right to represent their members for purposes other than collective bargaining.

e. Right to Self-Organization defined:Such right shall includes the right to form, join, or

assist labor organizations for the purpose of collective bargaining through representatives of their own choosing and to engage in lawful aid and protection, subject to the provisions of Article 246 of this Code.

The employees have the constitutional right to choose the labor organization which they desire to join. The exercise of such right would be rendered nugatory and ineffectual if they would be denied the opportunity to choose in a certification election, which is not a litigation, but a mere investigation of a non-adversary character, the bargaining unit to represent them. The holding of a certification election is a statutory policy that should not be circumvented. [AIRTIME SPECIALISTS vs. FERRER-CALLEJA]

II. Employees covered

A.General coverage

a. Private Sector Art 243 Coverage and employees' right to self-

organization. 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.

b.Public Sector Art. 244. Right of employees in the public service.

Employees of government corporations established under the Corporation Code shall have the right to organize and to bargain collectively with their respective employers. All other employees in the civil service shall have the right to form associations for purposes not contrary to law.

c. Other Workers Ambulant, intermittent and itinerant workers, self-

employed people, rural workers and those without any definite employers may form labor organizations for the purpose of enhancing and defending their interests and for their mutual aid and protection.

Ambulant employees – those employees who has no fixed work.

Intermittent employees – those employees who are temporary in the establishment.

Itinerant employees – those employees who travels from one place to another.

B. Specific Coverage

a. Who May join unions?(STAGNIS)

S- Supervisory EmployeesRule II Sec 2 D.O. 40. Shall not be eligible for

membership in a labor union of the rank-and-file employees, BUT may form, join or assist separate labor union of their own.

- Art. 245, LC. “Supervisory employees shall not be eligible for membership in a labor organization of the rank-and-file employees but may join, assist or form separate labor organizations of their own.”

"Clearly, based on this provision [Article 245], a labor organization composed of both rank-and-file and supervisory employees is no labor organization at all. It cannot, for any guise or purpose, be a legitimate labor organization. Not being one, an organization which carries a mixture of rank-and-file and supervisory employees cannot posses any of the rights of a legitimate labor organization, including the right to file a petition for certification election for the purpose of collective bargaining. It becomes necessary, therefore, anterior to the granting of an order allowing a certification election, to inquire into the composition of any labor organization whenever the status of the labor organization is challenged on the basis of Article 245 of the Labor Code." [Tagaytay Highlands vs. THEU]

The peculiar role of supervisors is such that while they are not managers, when they recommend action implementing management policy or ask for the discipline or dismissal of subordinates, they identify with the interests of the employer and may act contrary to the interests of the rank-and-file.

Thus, if the intent of the law is to avoid a situation where Supervisors would merge with the rank-and-file or where the supervisors' labor organization would represent conflicting interests, then a local supervisors' union should not be allowed to affiliate with the national federation of union of rank-and-file employees where that federation actively participates in union activity in the company. [ATLAS LITHOGRAPHIC SERVICES, INC., vs. LAGUESMA]

T- Terminated Employees / the so-called Dismissed EEArt 212 (f) "Employee" includes any person in

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

A- Aliens with employment permitsRULE II Sec 2 D.O. 40 Alien employees w/

valid working permits issued by the Department may exercise the right to self-organization and join or assist labor unions for purposes of collective bargaining if they are nationals of a country which grants the same or similar rights to Filipino workers, as certified by the Department of Foreign Affairs.

G- Government EmployeesArt. 244. Right of employees in the public

service. Employees of government corporations established under the Corporation Code shall have the right to organize and to bargain collectively with their respective employers. All other employees in the civil service shall have the right to form associations for purposes not contrary to law.

Art. 276. Government employees. The terms and conditions of employment of all government employees, including employees of government-owned and controlled corporations, shall be governed by the Civil Service Law, rules and regulations. Their salaries shall be standardized by the National Assembly as provided for in the new constitution. However, there shall be no reduction of existing wages, benefits and other terms and conditions of employment being enjoyed by them at the time of the adoption of this Code.

N- New EmployeesRule II Sec 2 D.O. 40 Par 2



For purposes of this section, any employee, whether employed for a definite period or not, shall beginning on the first day of his/her service, be eligible for membership in any labor organization.

I- Iglesia Ni KristoReyes vs. Trajano CaseThe INK employees, as employees in the same

bargaining unit in the true sense of the term, do have the right of self-organization, is also in truth beyond question, as well as the fact that when they voted that the employees in their bargaining unit should be represented by "NO UNION," they were simply exercising that right of self-organization, albeit in its negative aspect.

Neither law, administrative rule nor jurisprudence requires that only employees affiliated with any labor organization may take part in a certification election. On the contrary, the plainly discernible intendment of the law is to grant the right to vote to all bona fide employees in the bargaining unit, whether they are members of a labor organization or not.

Article 248 (a) declares it to be an unfair labor practice for an employer, among others, to "interfere with, restrain or coerce employees in the exercise of their right to self-organization." Similarly, Article 249 (a) makes it an unfair labor practice for a labor organization to "restrain or coerce employees in the exercise of their rights to self-organization . . ."

Logically, the right NOT to join, affiliate with, or assist any union, and to disaffiliate or resign from a labor organization, is subsumed in the right to join, affiliate with, or assist any union, and to maintain membership therein. The right to form or join a labor organization necessarily includes the right to refuse or refrain from exercising said right. It is self-evident that just as no one should be denied the exercise of a right granted by law, so also, no one should be compelled to exercise such a conferred right. The fact that a person has opted to acquire membership in a labor union does not preclude his subsequently opting to renounce such membership.

S- Security GuardsThey can join union of rank-and-file employees

but should not due to possible conflict of interests.

UST Case. "When a man joins a labor union (or almost any other democratically controlled group), necessarily a portion of his individual freedom is surrendered for the benefit of all members. He accepts the will of the majority of the members in order that he may derive the advantages to be gained from the concerted action of all. Just as the enactments of the legislature bind all of us, to the constitution and by-laws of the union (unless contrary to good morals or public policy, or otherwise illegal), which are duly enacted through democratic processes, bind all of the members. If a member of a union dislikes the provisions of the by-laws, he may seek to have them amended or may withdraw from the union; otherwise, he must abide by them. It is not the function of courts to decide the wisdom or propriety of legitimate by-laws of a trade union.

"On joining a labor union, the constitution and by-laws become a part of the member's contract of membership under which he agrees to become bound by the constitution and governing rules of the union so far as it is not inconsistent with controlling principles of law. The constitution and by-laws of an unincorporated trade union express the terms of a contract, which define the privileges and rights secured to, and duties assumed by, those who have become members. The agreement of a member on joining a union to abide by its laws and comply with the will of the lawfully constituted majority does not require a member to submit to the determination of the union any question involving his personal rights." [UST vs. Bitonio]

b.Who cannot join unions?(N-HE-CAME)

N- Non-employees- Because no employer-employee relationship

exist as required for the application of the Labor Code.

H- High Level Government Employees- Sec. 3. EO 180. High-level employees whose

functions are normally considered as policy-making or managerial or whose duties are of a highly confidential nature shall not be eligible to join the organization of rank-and-file government employees.

E- Employees of Cooperatives- If a member of the cooperative, he is excluded.

He cannot bargain with himself.- If not a member of the cooperative, he is not

excluded.

- The right to collective bargaining is not available to an employee of a cooperative who at the same time is a member and co-owner thereof. With respect, however, to employees who are neither members nor co-owners of the cooperative they are entitled to exercise the rights to self-organization, collective bargaining and negotiation as mandated by the 1987 Constitution and applicable statutes.

- The fact that the members-employees of petitioner do not participate in the actual management of the cooperative does not make them eligible to form, assist or join a labor organization for the purpose of collective bargaining with petitioner. The Court's ruling in the Davao City case that members of cooperative cannot join a labor union for purposes of collective bargaining was based on the fact that as members of the cooperative they are co-owners thereof. As such, they cannot invoke the right to collective bargaining for "certainly an owner cannot bargain with himself or his co-owners." [Cooperative Rural Bank of Davao City, Inc. v. Ferrer-Calleja,]. It is the fact of ownership of the cooperative, and not involvement in the management thereof, which disqualifies a member from joining any labor organization within the cooperative. Thus, irrespective of the degree of their participation in the actual management of the cooperative, all members thereof cannot form, assist or join a labor organization for the purpose of collective bargaining.

A cooperative . . . is by its nature different from an ordinary business concern being run either by persons, partnerships, or corporations. Its owners and/or members are the ones who run and operate the business while the others are its employees. As above stated, irrespective of the number of shares owned by each member they are entitled to cast one vote each in deciding upon the affairs of the cooperative. Their share capital earn limited interest. They enjoy special privileges as ---- exemption from income tax and sales taxes, preferential light to supply their products to State agencies and even exemption from the minimum wage laws.

An employee therefore of such a cooperative who is a member and co-owner [BENECO vs. Ferrer-Calleja]

C- Confidential Employees- They are entrusted with confidence on delicate

matters or with the custody, handling or care and protection of the employer’s property. By the very nature of their functions, they assist and act in a confidential matters to, or have access to confidential matters of persons who exercise



managerial functions in the field of labor relations.

- SMC Case. Confidential employees are those who (1) assist or act in a confidential capacity, (2) to persons who formulate, determine, and effectuate management policies in the field of labor relations. The two criteria are cumulative, and both must be met if an employee is to be considered a confidential employee that is, the confidential relationship must exist between the employee and his supervisor, and the supervisor must handle the prescribed responsibilities relating to labor relations.

The exclusion from bargaining units of employees who, in the normal course of their duties, become aware of management policies relating to labor relations is a principal objective sought to be accomplished by the ''confidential employee rule." The broad rationale behind this rule is that employees should not be placed in a position involving a potential conflict of interests. "Management should not be required to handle labor relations matters through employees who are represented by the union with which the company is required to deal and who in the normal performance of their duties may obtain advance information of the company's position with regard to contract negotiations, the disposition of grievances, or other labor relations matters."

If these managerial employees would belong to or be affiliated with a Union, the latter might not be assured of their loyalty to the Union in view of evident conflict of interests or that the Union can be company-dominated with the presence of managerial employees in Union membership.

"If access to confidential labor relations information is to be a factor in the determination of an employee's confidential status, such information must relate to the employer's labor relations policies. Thus, an employee of a labor union, or of a management association, must have access to confidential labor relations information with respect to his employer, the union, or the association, to be regarded a confidential employee, and knowledge of labor relations information pertaining to the companies with which the union deals, or which the association represents, will not cause an employee to be excluded from the bargaining unit representing employees of the union or association."

- Confidential employees such as accounting personnel, radio and telegraph operators, who having access to confidential information, may become the source of undue advantage. Said employee(s) may act as a spy or spies of either party to a collective bargaining agreement. This is specially true in the present case where the petitioning Union is already the bargaining agent of the rank-and-file employees in the establishment. To allow the confidential employees to join the existing Union of the rank-and-file would be in violation of the terms of the Collective Bargaining Agreement wherein this kind of employees by the nature of their functions/positions are expressly excluded.

As to the company foremen, while in the performance of supervisory functions, they may be the extension or alter ego of the management. Adversely, the foremen, by their actuation, may influence the workers under their supervision to engage in slow down commercial activities or similar activities detrimental to the policy, interest or business objectives of the company or corporation, hence they also cannot join.

[GOLDEN FARMS, INC. vs. FERRER-CALLEJA]

A- AFP and Police Personnel- Sec. 4. The Executive Order shall not apply to

the members of the Armed Forces of the Philippines, including police officers, policemen, firemen and jail guards.

M- Managerial Employees- Art 245 of the Labor Code. “Managerial

Employees are not eligible to join, assist or form any labor organization.

- "One who is 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, or to effectively recommend such managerial actions. All employees not falling within this definitions are considered rank-and-file employees for purposes of this Book."

- The rationale. The interests of supervisors on the one hand, and the rank-and-file employees on the other, are separate and distinct. The functions of supervisors, being recommendatory in nature, are more identified with the interests of the employer. The performance of those functions may, thus, run counter to the interests of the rank-and-file.

- "The test of 'supervisory or managerial status' depends on whether a person possesses authority to act in the interest of his employer in the matter specified in Article 212 (K) of the Labor Code and Section 1 (m) of its Implementing Rules and whether such authority is not merely routinary or clerical in nature, but requires the use of independent judgment. [Pagkakaisa ng mga Mangagawa vs. Ferrer-Calleja}

E- Employees of International Organizations with immunities

III. Kinds of Unions and Ways of creating legal personality.

1. Independent union - Refers to a labor organization operating at the

enterprise level that acquired legal personality through independent registration under the provisions of the Labor Code.

2. Local/charter- Refers to a labor organization in the private sector

operating at the enterprise level that acquired legal personality through the issuance of a charter certificate by a duty registered federation or national union, reported to the Regional Office and the Bureau in accordance with the Rules.

3. Affiliate- Independent unions that affiliate with Federation,

national union or chartered local which was subsequently granted independent registration but did not disaffiliate federation, reported to the Regional Office and the Bureau in accordance with the Rules.

- Affiliate contract is required.

4. Merger- Refers to a process where a labor organization

absorbs another resulting in the cessation of the absorbed labor organization’s existence, and the continued existence of the absorbing labor organization.

5. Consolidation- Refers to the creation or formation of a new union

arising from the unification of two or more unions.



Affiliation- To strengthen the bargaining power of the union- Federation will merely act as an agent, and the

union as principal.

Disaffiliation- Tropical Hut case.

- In the absence of any enforceable provisions of the CBL or in the federation’s constitution preventing the disaffiliation of the local union, disaffiliation can be made anytime.

- If there is a prohibition:- Only during the freedom period.

- Except: - When majority of the members of the

union consented to the disaffiliation.

IV. Registration of Unions1. Effects of Registration

Registration with the bureau of Labor Relations is the operative act that gives right to a labor organization. Registered union becomes a legitimate labor organization in the sense that it is clothed with the legal personality to claim representational and bargaining rights enumerated in Art 242 and 263 of the Labor code.

The requirement of registration is not a curtailment of the right to association. It is merely a condition sine qua non for the acquisition of legal personality by the labor organizations, associations or unions and the possession of the rights and privileges granted by law to labor org.

A valid exercise of police power since the activities in which labor organizations are engaged affect public interest which should be protected.

2. Importance of Acquiring Legal personalitya. Rights of Legitimate Labor Org.

Art 242 Labor CodeA. Undertakes activities for benefit of membersB. Sue and be suedC. Exclusive representative of all employeesD. Represent union membersE. Furnished by employers of audited financial

statements.F. Own propertiesG. Exempted from taxes

Art 263 Labor CodeOnly legitimate labor organizations are given

the right to strike.

3. When and where to register.- For Registration of independent Labor unions,

chartered locals, worker’s associations shall be filed with the Regional office where the applicant principally operates. It shall be processed by the Labor Relations Division at the Regional office.

- For registration of federations, national unions or worker’s associations operating in more than one region shall be filed with the bureau or the regional office, but shall be processed by the bureau.

4. Requirements for union registration

a. Independent

Art. 234. Requirements of registration. Any applicant labor organization, association or group of unions or workers shall acquire legal personality and shall be entitled to the rights and privileges granted by law to legitimate labor

organizations upon issuance of the certificate of registration based on the following requirements:

(a) Fifty-pesos (P50.00) registration fee; (b) The names of its officers, their addresses,

the principal address of the labor organization, the minutes of the organizational meetings and the list of the workers who participated in such meetings;

(c) The names of all its members comprising at least twenty 20% percent of all the employees in the bargaining unit where it seeks to operate.

(d) If the applicant 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, the minutes of its adoption or ratification and the list of the members who participated in it.

b. Local/Charter 1. Charter certificate2. Constitution and by-laws of the applicant

union, the minutes of its adoption or ratification and the list of the members who participated in it.

3. Sets of officers. The names of its officers, their addresses, the principal address of the labor organization.

c. Federation

Art. 237. Additional requirements for federations or national unions. Subject to Article 238 if the applicant for registration is a federation or a national union, it shall, in addition to the requirements of the preceding Articles, submit the following:

(a) Proof of the affiliation of at least ten locals or chapters, each of which must be a duly recognized collective bargaining agent in the establishment or industry in which it operates, supporting the registration of such applicant federation or national union;

(b) The names and addresses of the companies where the locals or chapters operate and the list of all the members in each company involved.

5. Action on applicationRule IV Sec 4 D.O. 40. The Regional Office

or the Bureau, as the case may be shall act on applications for registration or notice of change of name, affiliation, merger and consolidation within 10 days from receipt either by: (a) approving the application and issuing the certificate of registration/acknowledging the notice/report; or (b) denying application/notice for failure of the applicant to comply with the requirements for registration/notice.

6. Appeal on denialRule IV sec 5,6 D.O. 40. The denial may be

appealed to the Bureau if denial is made by the Regional office or to the Secretary if denial is made by the Bureau, within 10 days from the receipt of such notice, on the ground of grave abuse of discretion or violation of these Rule.

The memorandum of appeal shall be filed with the Regional office or the Bureau that issued the denial/return of notice of change of name, affiliation, merger or consolidation, shall be transmitted by the Regional Office to the Bureau or by the Bureau to the Office of the Secretary, within 24 hours from receipt of the memorandum of appeal.

The Bureau or the Office of the Secretary shall decide the appeal within 20 days from receipt of the records of the case.



V. Cancellation of Union Registration

Art. 239. Grounds for cancellation of union registration. The following shall 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) Failure to submit the documents mentioned in the preceding paragraph within thirty (30) days from adoption or ratification of the constitution and by-laws or amendments thereto;

(c) Misrepresentation, false statements or fraud in connection with the election of officers, minutes of the election of officers, the list of voters, or failure to subject these documents together with the list of the newly elected/appointed officers and their postal addresses within thirty (30) days from election;

(d) Failure to submit the annual financial report to the Bureau within thirty (30) days after the losing of every fiscal year and misrepresentation, false entries or fraud in the preparation of the financial report itself;

(e) Acting as a labor contractor or engaging in the "cabo" system, or otherwise engaging in any activity prohibited by law;

(f) Entering into collective bargaining agreements which provide terms and conditions of employment below minimum standards established by law;

(g) Asking for or accepting attorney’s fees or negotiation fees from employers;

(h) Other than for mandatory activities under this Code, checking off special assessments or any other fees without duly signed individual written authorizations of the members;

(i) Failure to submit list of individual members to the Bureau once a year or whenever required by the Bureau; and

(j) Failure to comply with the requirements under Articles 237 and 238

REPRESENTATION ELECTIONS

I. Bargaining Unit- Refers to a group of employees sharing mutual

interest within a given employer unit, comprised of all or less than all of the entire body of employees in the employer unit or any specific occupational or geographical grouping within such employer unit. D. O 40-03

- (UP vs. Calleja case) A "bargaining unit" has been defined as a group of employees of a given employer, comprised of all or less than all of the entire body of employees, which the collective interest of all the employees, consistent with equity to the employer, indicate to be the best suited to serve the reciprocal rights and duties of the parties under the collective bargaining provisions of the law.

- A group of employees of a given employer, comprised of all or less that 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 provision of the law.

- GENERAL RULE: - Art. 255. Labor Code. -- Exclusive bargaining

representation and workers' participation in policy and decision-making. The labor organization designated or selected by the majority of the employees in an appropriate collective bargaining unit shall be the exclusive representative of the employee in such unit for the purpose of collective bargaining. However, an individual employee or group of employees shall have the right at any time to present grievances to their employer.

- “ONE –UNION, ONE-COMPANY POLICY” - The proliferation of unions in an employer unit is

discouraged as a matter of policy unless there are compelling reasons which would deny a certain class of employees the right to self-organization for purposes of collective bargaining.

- Exception: Supervisory employees who are allowed to form their own unions apart from the rank-and-file employees.

- The policy should yield to the right of the employees to form unions for purposes not contrary to law, self-organization and to enter into collective bargaining.

2 companies cannot be treated into a single bargaining unit even if their businesses are related.

Subsidiaries or corporations formed out of former divisions of a mother company following a re-organization may constitute a separate bargaining unit.

- (SMC vs. Laguesma) A unit to be appropriate must effect a grouping of employees who have substantial, mutual interests in wages, hours, working conditions and other subjects of collective bargaining.

It is readily seen that the employees in the instant case have "community or mutuality of interests," which is the standard in determining the proper constituency of a collective bargaining unit. It is undisputed that they all belong to the Magnolia Poultry Division of San Miguel Corporation. This means that, although they belong to three different plants, they perform work of the same nature, receive the same wages and compensation, and most importantly, share a common stake in concerted activities.

Determination of Bargaining Representative- 4 Factors:

1. The Express will or desire of the employees (Globe Doctrine)

The desires of all the employees are relevant to the determination of the appropriate bargaining unit. The relevance of the wishes of the employees concerning their inclusion or exclusion from a proposed bargaining unit is inherent in the basic right to self-organization.

3 or more unit is possibly be formed in a unit, the will of the employees is the determining factor.

2. Substantial and mutual interest (SMC vs. Laguesma) A unit to be appropriate

must effect a grouping of employees who have substantial, mutual interests in wages, hours, working conditions and other subjects of collective bargaining.

3. Prior collective bargaining history.

4. Employment status, such as:a. Temporaryb. Seasonalc. Probationary employees

- 3 modes of acquiring majority representative: 1. Voluntary recognition

- Refers to the process whereby the employer recognizes a labor organization as the exclusive bargaining representative of the employees in the appropriate bargaining unit after a showing that the labor organization is supported by at least a majority of the employees in the bargaining unit.

- The effect of which is the recognition by the employer as the exclusive bargaining agent



which may collectively bargain with such employer.

- There must be a demand of the part of the labor organization before the duty of the employer to bargain sets-in.

- Process of negotiation sets-in upon recognition by the employer.

- Recognition must be reported to the Regional office.

- This must be first resorted before filing a petition for CE.

2. Consent Election- Refers to the process of determining the

exclusive bargaining agent through the voluntary agreement by the parties, with or without the intervention of the Department.

- Department here is the Med-Arbiter. He is an official of the Regional Office empowered to hear and decide inter-union and intra-union disputes.

3. Certification Election- Refers to the process of determining by secret

ballot the sole and exclusive bargaining agent of the employees in an appropriate bargaining unit for the purposes of collective bargaining and negotiations.

- Ordered by the Department.- It is a well-settled rule that "a certification

proceedings is not a litigation in the sense that the term is ordinarily understood, but an investigation of a non-adversarial and fact finding character."

- Distinguish from union electionA union election is held pursuant to the

union's constitution and bylaws, and the right to vote in it is enjoyed only by union members

In a certification election, all employees belonging to the appropriate bargaining unit can vote. [Airtime Specialists v. Ferrer-Calleja] Therefore, a union member who likewise belongs to the appropriate bargaining unit is entitled to vote in said election. However, the reverse is not always true; an employee belonging to the appropriate bargaining unit but who is not a member of the union cannot vote in the union election, unless otherwise authorized by the constitution and bylaws of the union. Verily, union affairs and elections cannot be decided in a non-union activity. [UST vs. Bitonio]

III. Requisites for Certification Election

Unorganized Establishment (Art 259)- Petition for CE- Filed by a legitimate labor organization.

Organized Establishment (Art 256)- Verified petition- Filed by a legitimate labor organization- 25% consent requirement- Within the freedom period or 60 day period prior to

the expiration of the CBA.

Unorganized establishment is that where the rank-and-file has no CBA and no bargaining unit. In which case, the employer may file a motion to dismiss the petition for CE.

Valid compliance of 25% but there is retraction?-- There is still a conduct of CE, the latter being the best way to determine the same. If the retraction is made before the petition for CE it is considered as voluntary and otherwise if after.

IV. Who may file?- Any legitimate labor organization may file a petition

for certification election.- An employer , when requested to bargain collectively.

If there is no existing certified collective bargaining agreement in the unit, the Bureau shall, after hearing, order a certification election. All certification cases shall be decided within 20 working days. Therefore, establishment must be unorganized (Art 258 of the LC)

V. When to file?

In Unorganized establishments- ANYTIME- Art. 257. Petitions in unorganized establishments.

In any establishment where there is no certified bargaining agent, a certification election shall automatically be conducted by the Med-Arbiter upon the filing of a petition by a legitimate labor organization.

In Organized establishment- With registered CBA: within freedom period- With CBA but unregistered: ANYTIME

Sec 3, Rule VIII D.O.40-03

A petition for certification election may be filed anytime, except:(a) When a fact of voluntary recognition has been

entered or valid certification, consent or run-off election has been conducted within the bargaining unit within 1 year prior to the filing of the petition for certification election. Where an appeal has been filed from the order of the Med-Arbiter certifying the results of the election, the running of the 1-year period shall be suspended until the decision on the appeal has become final and executory;

(b) When the duly certified union has commenced and sustained negotiations in good faith with the employer in accordance with article 250 of the Labor Code within 1 year referred to in the immediately preceding paragraph.

(c) When a bargaining deadlock to which an incumbent or certified bargaining agent is a party had been submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout;

(d) When a CBA between the employer and a duly recognized or certified bargaining agent has been registered in accordance with Article 231 of the Labor Code. Where such CBA is registered , the petition may be filed only within 6 days prior to its expiry.

BAR RULES:

Certification Year Rule – No petition for CE may be filed w/in 1 year from the date of a valid certification, consent or run-off election or from the date of the voluntary recognition.

Deadlock Bar Rule – A petition for CE cannot be entertained if, before the filing of the petition for CE, a bargaining deadlock to which an incumbent or certified bargaining agent is a party, had been submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout.

Contract Bar Rule – While a valid and registered CBA is subsisting, the BLR is not allowed to hold an election contesting the majority status of the incumbent.

Section 3, Rule V, Book V of the Omnibus Rules Implementing the Labor Code, prohibits not the registration of a new union but the holding of a certification election "within one year from the dare of issuance of a



final certification election result." Clearly, private respondent's registration is not covered by the prohibition. In any event, the union registration was effected in September 1990, a month before the secretary of labor issued his decision on the result of the certification election on October 31, 1990. Hence, there was yet no certified bargaining agent when the private respondent was registered as a union. [KAMADA vs. FERRER-CALLEJA]

VI. Where to file? Regional Office

- Where the principal office of ER- Place of bargaining unit

Sec 2. RULEVIII, D.O. 40-03A petition for certification election shall be filed

with the Regional Office which issued the petitioning union’s certificate of registration/certificate of creation of chartered local.

The petition shall be heard and resolved by the Med-Arbiter.

Where 2 or more petitions involving the same bargaining unit are filed in one Regional Office, the same shall be automatically consolidated with the Med-Arbiter who first acquired jurisdiction. Where the petitions are filed in different Regional Offices, the Regional Offices in which the petition was first filed shall exclude all others; in which case, the latter shall indorse the petition to the former for consolidation.

VII. Grounds for denial of the petition for C. E.

Sec 14. D.O 40-031. The petitioner is not listed in the Department’s registry

of legitimate labor unions or that its legal personality has been revoked or cancelled with finality in accordance with the Rules;

2. The petition was filed before or after the freedom period of a duly registered CBA; provided that the 60-day period based on the original CBA shall not be affected by any amendment, extension or renewal of the CBA;

3. The petition was filed within 1 year from entry of voluntary recognition or a valid certification, consent of run-off election and no appeal on the results of the certification, consent or run-off election is pending;

4. A duly certified union has commenced and sustained negotiations with the employer in accordance with Article 250 of the Labor Code within the 1-year period referred to, or there exist a bargaining deadlock which had been submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout to which an incumbent or certified bargaining agent is a party;

5. In case of an organized establishment, failure to submit the 25% support requirement for the filing of the petition for certification election.

VIII. Election Procedures

1. Petition for CE – Post in 2 strategic or most conspicuous places in the establishment.

-- Incumbent bargaining unit is forced intervenor of the petition.

2. Order – After due hearing of the petition it is issued by the Med-Arbiter. Either granting or denying the petition for CE.

3. Actual Conduct – within 24 hours from the receipt of the order, the Regional Director shall cause the raffle of the case to an Election Officer who shall have control of the pre-election conference and the election proceedings.

4. Who are entitled to vote?

All employees who are members of the appropriate bargaining unit sought to be represented by the petitioner at the time of the issuance of the order.

An employee dismissed from work but has contested the legality of the dismissal is a forum of appropriate jurisdiction at the time of the issuance of the order for the conduct of the CE. UNLESS: His dismissal was declared valid in a final judgment at the time of the conduct of the CE.

All contested voters, in case of disagreement over the voters’ list or over the eligibility of the voters. BUT: Their votes shall be segregated and sealed in individual envelopes in accordance with the Rules.

5. Motion for intervention – 25% requirement is not necessary, only in Petition.

Organized Establishment – Any labor union other than the incumbent bargaining agent may file with the Med-Arbiter during the freedom period. The form and contents of the motion shall be the same as that of the petition for CE.

Unorganized Establishment – It may be filed at any time prior to the decision of the Med-Arbiter. It shall be resolved in the same decision issued in the petition for certification election.

In both cases, the form and contents of the motion shall likewise be the same as that of a petition for CE.

6. Certification of winning union.- Within 24 hours from final canvass of votes, there

being a valid election, the Election Officer shall transmit the records of the case to the Med-Arbiter who shall, within the same period from receipt of the minutes and results of election, issue an order proclaiming the results of the election and certifying the union which obtained a majority of the valid votes cast the sole and exclusive bargaining agent in the subject bargaining unit, under any of the following conditions:(a) No protest was filed or, even if one was filed,

the same was not perfected within the 5-day period for protection of the protest.

(b) No Challenge or eligibility issue was raised or, even if one was raised, the resolution of the same will not materially change the results of the election. [Sec. 20 Rule IX D.O. 40-03]

After a certificate of registration is issued to a union, its legal personality cannot be subject to collateral attack. It may be questioned only in an independent petition for cancellation in accordance with Section 5 of Rule V, Book IV of the "Rules to Implement the Labor Code" reads:

Sec. 5. Effect of registration. The labor organization or workers’ association shall be deemed registered and vested with legal personality on the date of issuance of its certificate of registration. Such legal personality cannot thereafter be subject to collateral attack, but may be questioned only in an independent petition for cancellation in accordance with these Rules.

The infirmity in the membership of the respondent union cannot be remedied in "the pre-election conference thru the exclusion-inclusion proceedings wherein those employees who are occupying rank-and-file positions will be excluded from the list of eligible voters." [Tagaytay Highlands vs. THEU]

7. Run-off Election. (Rule IV, D.O 40-03)- When an election which provides for 3 or more

choices results in none of the contending unions receiving a majority of the valid votes casts, and there are no objections or challenges which if sustained can materially alter the results, the Election officer shall motu proprio conduct a run-off election within 10 days from the close of the election proceeding between the



labor unions receiving the two highest number of votes; provided, that the total number of votes for all contending unions is at least 50% of the number of votes cast.

“No Union” shall not be a choice in the run-off election.Notice of the run-off election shall be posted by the

Election Officer at least 5 days before the actual date of run-off election.

The same voters’ list in the certification election shall be used in the run-off election. The ballots in the run-off shall provide as choices the union receiving the greater number of valid votes cast all be certified as the winner.

8. Appeal- Art. 259. Appeal from certification election orders.

Any party to an election may appeal the order or results of the election as determined by the Med-Arbiter directly to the Secretary of Labor and Employment on the ground that the rules and regulations or parts thereof established by the Secretary of Labor and Employment for the conduct of the election have been violated. Such appeal shall be decided within fifteen (15) calendar days.

-IX. Suspension of Certification Election.

COLLECTIVE BARGAINING

I. Public Policy

Art XIII Sec 3 Par 2It shall guarantee the rights of all workers to

self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with the law.

Art 211. Labor CodeDeclaration of policy -- It is the policy of the

State: (a) To promote free trade unionism as an instrument

for the enhancement of democracy and the promotion of social justice and development;

(b) To foster the free and voluntary organization of a strong and united labor movement;

Sec. 1 Rule XVI D.O 40-03It is the policy of the State to promote and emphasize the primacy of free and responsible exercise of the right to self-organization and collective bargaining, either through single enterprise level negotiations or through the creation of mechanism by which different employers and recognized or certified labor unions in their establishments bargain collectively.

II. Concept and Nature

Collective Bargaining – negotiation by an organization or group of workmen, in behalf of its members, with the employer, concerning wages, hours of work and other terms and conditions of employment and the settlement of disputes by negotiation between an employer and the representative of his employees.

The parties cannot stipulate terms and conditions of employment which are below the minimum requirements prescribed by law.

It does not end with the execution of the agreement. It is a continuous process. The duty to bargain imposes on the parties during the term of their agreement the mutual obligation to meet and confer promptly and expeditiously and in good faith for the purpose of adjusting any grievances or question arising under such agreement.

III. Mechanics

The mechanic of collective bargaining is set in a motion only when the following JURISDICTIONAL PRECONDITIONS are present:

1. Possession of the Majority Status. Representation by the employees’ representative in accordance with any of the means of selection or designation provided for by the Labor Code;

2. Proof of majority representation; (the certification issued by Med-Arbiter) and

3. A demand to bargain under the Art 250 (a) of the Labor Code.

IV. Duty to Bargain

Organized EstablishmentArt. 253. Duty to bargain collectively when there

exists a collective bargaining agreement. When there is a collective bargaining agreement, the duty to bargain collectively shall also mean that neither party shall terminate or 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 term and conditions of the existing agreement during the 60-day period and/or until a new agreement is reached by the parties.

Unorganized EstablishmentArt. 252. Meaning of duty to bargain collectively.

The duty to bargain collectively means the performance of a mutual obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages, hours of work and all other terms and 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.

Art. 251. Duty to bargain collectively in the absence of collective bargaining agreements. In the absence of an agreement or other voluntary arrangement providing for a more expeditious manner of collective bargaining, it shall be the duty of the employer and the representatives of the employees to bargain collectively in accordance with the provisions of this Code.

V. Procedures

Preliminary:1. Written notice with statement of proposals.2. Reply by the other party within 10 calendar days.3. In case of differences, either party may request for a

conference, which must be held within 10 days from the receipt of the notice of request. Otherwise, CBA.

4. If not settled, NCMB may intervene and encourage the parties to submit the dispute to a voluntary arbitration.

5. If not resolved, the parties may go to where they want and resort to any other lawful means. Either to settle the dispute or submit to voluntary arbitration.

NCMB – National Conciliation and Mediation Board

* Deliberate failure to reply is tantamount to Unfair Labor Practice (ULP)

Stages:1. Preliminary process – Written notice for negotiation

(clear & unequivocal.)2. Negotiation process3. Execution process – signing of the agreement in

contract form. Sometimes attested by officers.

4. Publication for at least 5 days before ratification.



5. Ratification by the majority of all the workers in the bargaining unit represented in the negotiation.

6. Registration Process – within 30 days.7. Administration Process – CBA shall be administered

by the management and the bargaining unit for 5 days.

-- Compliance with what was agreed upon.

-- Non-compliance is tantamount to ULP8. Interpretation and application process.

Art. 250. Procedure in collective bargaining. The following procedures shall be observed in collective bargaining: (a) When a party desires to negotiate an agreement, it

shall serve a written notice upon the other party with a statement of its proposals. The other party shall make a reply thereto not later than ten (10) calendar days from receipt of such notice;

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

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

(d) During the conciliation proceedings in the Board, the parties are prohibited from doing any act which may disrupt or impede the early settlement of the disputes; and

(e) The Board shall exert all efforts to settle disputes amicably and encourage the parties to submit their case to a voluntary arbitrator.

VI. Areas/Subjects of CB

Economic Issues – monetary aspectsNon-economic issues – political aspects

VII. CBA-- A negotiated contract between a legitimate labor

organization and the employer concerning wages, hours of work and all other terms and conditions of employment in a bargaining unit, including mandatory provisions for grievance and arbitration machineries.

VIII. Terms and Agreement

Art. 253-A. Terms of a collective bargaining agreement. 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. 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 provisions as fixed in the 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.

Political – can only be renegotiated during the freedom period.Monetary – After 3 years can be renegotiated within 6 months

and will retroact to the time of the expiration of 3 years.

IX. Registration of CBA

Requisites:1. Mandatory Provisions

- Wages- Hours of work- Grievance Machinery- Voluntary Arbitration- Family planning- Rates of pay- Mutual observance clause- CBA should include a clear statement of the

terms of the CBA.2. Payment of P1,000.003. 5 copies of CBA4. Proof of ratification

Purpose: For the application of the Contract-Bar Rule

Sec.5 Rule XVII D.O.40-03-- The denial of the registration shall be in writing, stating

in clear terms the reasons therefor and served upon the applicant union and employer within 24-hours from issuance. The denial by the Regional Office of the registration of single enterprise collective bargaining agreements may be appealed to the Bureau within 10days from receipt of the notice of denial. The denial by the Bureau of the registration of multi-employer CBA may be appealed to the Office of the Secretary within the same period.

X. Administration of Agreement

During the conciliation proceeding in the Board, the parties are prohibited from doing any act that may disrupt or impede the early settlement of the dispute.

Art. 232. Prohibition on certification election. The Bureau shall not entertain any petition for certification election or any other action which may disturb the administration of duly registered existing collective bargaining agreements affecting the parties except under Articles 253, 253-A and 256 of this Code.

UNFAIR LABOR PRACTICE

I. Nature of ULP

1. Violate the Constitutional Right of the workers and employees to self-organization.

2. ULP 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.

3. Disrupt industrial peace, and4. Hinder the promotion of healthy and stable labor

management relations and mutual respect. [Labor-management relations unstable.]

II. Essential Elements of any ULP act

1. Employer-employee relationships between the offender and the offended.

2. Act done is expressly defined in the Code as an unfair labor practice.

III. A ULP is a special kind of Offense

Art. 247 Labor Code: 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.

Subject to the exercise by the President or by the Secretary of Labor and Employment of the powers vested in them by Articles 263 and 264 of this Code, the civil aspects of all cases involving unfair labor practices, which may include claims for actual, moral, exemplary and other forms of damages, attorney's fees and other affirmative relief, shall be under the jurisdiction of the Labor Arbiters. The Labor Arbiters shall give utmost priority to the hearing and resolution of all cases involving unfair labor practices. They shall resolve such cases within thirty (30) calendar days from the time they are submitted for decision. (As amended by RA 6715)

Recovery of civil liability in the administrative proceedings shall bar recovery under the Civil Code.

No criminal prosecution under this Title may be instituted without a final judgment, finding that an unfair labor practice was committed, having been first obtained in the administrative proceeding referred to in the preceding paragraph. During the pendency of such administrative proceeding, the running of the period of prescription of the criminal offense herein penalized shall be considered interrupted: Provided, however, That the final judgment in the administrative proceedings shall not be binding in the criminal case nor be considered as evidence of guilt but merely as proof of compliance with the requirements herein set forth.

Aspects of ULP:

CIVIL CASE CRIMINAL CASE

A. Persons liable:1. Officers and agents of

employer or2. Labor organization,

officers and agents.

1. Agents and officers who participated or authorized or ratified the act.

2. Agents, representatives, members of the government board, including ordinary members.

B. Jurisdiction:-- Labor Arbiters of the NLRC.

-- MTC/RTC as the case may be.

C. QUANTUM OF PROOF NEEDED

-- Substantial evidence

-- Beyond reasonable doubt [subject to prosecution and punishment.

D. PRESCRIPTIVE PERIOD-- One year from the accrual of the ULP act.

-- 1 yr from the accrual of the ULP act, however, it will be suspended once the administrative case has been filed and would only continue running once the latter case has attained finality.

Note:Final judgment in the administrative proceeding finding

that ULP has been committed is a prerequisite in filing a criminal case of ULP. However, the same shall not be binding in the criminal case nor shall be considered as an evidence of guilt but merely as a proof of compliance of the requirement by the Code.

IV. Can be Committed by:

1. Employer – Art. 248 Labor Code.2. Employee – Art. 249 Labor Code.

Test of Interference or Coercion:-- Whether the employer has engaged in conduct which it

may reasonably be said tends to interfere with the free

exercised of the employees’ right and it is not necessary that there be direct evidence that any employee was in fact intimidated or coerced by the statements of threats or the employer if there is a reasonable interference that the anti-union conduct of the employer does have an adverse effect of self-organization and collective bargaining.

ULP of EMPLOYERSULP of LABOR

ORGANIZATION

1. Restrain, Interference or Coercion in the exercise of the right to self-organization.

1. Restrain or coercion in the exercise of the right to self-organization.

2. Yellow Dog Contract --

3. Contracting out in order to coerce or restrain employees in the exercise of the right to self-organization.

--

4. Initiating, Dominating, Assisting, Interfering and Giving support to unions. [Company Union]

2. Featherbedding

5. Discriminating in order to encourage or discourage union membership.

3. To cause or attempt to cause employer to Discriminate against employee

6. Retaliatory dismissal or discrimination due to adverse testimony.

--

7. Violation of the duty to bargain.

4. Violation of the duty to bargain.

8. Paying negotiation or attorney’s fee to union.

5. Asking or accepting negotiation or Attorney’s fee from the management.

9. To Violate a CBA 6. To Violate a CBA.

Yellow Dog Contract: -- A promise exacted from workers as a condition of

employment that they are not to belong to or attempt to foster a union during their period of employment.

-- It is null and void because:- It is contrary to public policy as it is tantamount to

involuntary servitude.- It is entered into without consideration for employees

in waiving their right to self-organization.- Employees are coerced to sign contracts

disadvantageous to their family.

Test of Discrimination:-- Whenever benefits or privileges given to one is not given

to the other under similar or identical conditions when directed to encourage or discourage union membership.

Featherbedding:-- Refers to the practice of the union or its agents in causing

or attempting to cause an employer to pay deliver or agree to pay or deliver money or other things of value, in the nature of exaction, for services which are nit performed or not to be performed, as when a union demands that the employer maintain personnel in excess of the latter’s requirements.

-- It is not featherbedding if the work is performed no matter how unnecessary or useless it may be.

STRIKES AND LOCKOUTS

I. Legal Basis



Art. 263. [b] Labor Code .

Strikes, picketing and lockouts –(b) Workers shall have the right to engage in

concerted activities for purposes of collective bargaining or for their mutual benefit and protection. The right of legitimate labor organizations to strike and picket and of employers to lockout, consistent with the national interest, shall continue to be recognized and respected. However, no labor union may strike and no employer may declare a lockout on grounds involving inter-union and intra-union disputes.

Art XIII Sec 3 Par 2

It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with the law.

II. Definition and its Characteristics

"Strike” – means any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute. [212 (o)]

- It is the most effective weapon of labor in protecting the rights of the employees to improve the terms and conditions of their employment.

Only legitimate labor organizations are given the right to strike.

Unorganized workers may hold a protest action but not a strike.

Not all concerted activities are “strikes”. They may only be protest actions. And they do not necessarily cause work stoppage by the protesters. A Strike, in contrast, is always a group action accompanied by work stoppage.

"Lockout" – means the temporary refusal of an employer to furnish work as a result of an industrial or labor dispute. [212 (p)]

“Picketing” – means the act of marching to and fro the employer’s premises, usually accompanied by the display of placards and other signs making known the facts involved in a labor dispute. This is an exercise of one’s freedom of speech.

“Strike-Breaker” – any person who obstructs, impedes or interferes by force, violence coercion, threats or intimidation with any peaceful picketing by employees during any labor controversy affecting wages, hour or condition of work or in the exercise of the right to self-organization or collective bargaining.

Elements:1. Stoppage of Work2. Concerted Activities3. Labor Disputes

III. Kinds of Strikes

1. According to the Grounds:- Unfair labor Practice (Political)

– Notice within 15 days- Bargaining Deadlock (Economic)

- Notice- Of strike – by the employee- Of lockout – by the employer within 30

days before the intended date thereof.

- In the absence of a duly certified or recognized bargaining agent, the notice of strike may be filed by any legitimate labor organization in behalf of its members. [263 (c)]

- If there is a:- Reply – CBA - Non-reply – ULP

- Union Busting- Dismissal of union organization duly elected.- Immediate Notice- In case of dismissal from employment of union

officers duly elected in accordance with the union constitution and by-laws, which may constitute union busting where the existence of the union is threatened, the 15-day cooling-off period shall not apply and the union may take action immediately. [263 (c)]

2. According to performance: - Sit-down Strike – 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 ILLEGAL – which amounts to a

criminal act because employees trespass the premises of the employer.

- Wildcat Strike – is a work stoppage that violates the labor contract and is not authorized by the union.- It is ILLEGAL – because it fails to

comply with certain requirements of the law, to wit: notice of strike, vote and report on strike vote.

- Sympathetic Strike – is a work stoppage of workers of one company to make common cause with the other strikers of other companies, without demands or grievances of their own against the employer.- It is ILLEGAL – because there is no

labor dispute between the workers who are joining the strikers and the latter’s employer.

- Secondary Strike – is work stoppage of workers of one employer so that the latter will in turn bring pressure upon the employer of another company with whom another union has a labor dispute.- It is ILLEGAL – because there is no

dispute involved.- Slow-down Strike – is work stoppage of the

workers by installment.

IV. Conditions and pre-requisites of a valid strike

1. It must be peaceful- There are no:

- Violence- Intimidation- Coercion- Intimidation- Threat- Obstruction

- Ingress- Egress

Obstruction of Ingress and Egress —the denial of Employer of his right given in his property and other people of their right over public property.

2. In accordance with law- There must be legal and valid ground

- Widespread, pervasive and resorted by a matter of company policy.

- Made by a proper party – Exclusive Bargaining Agent or any legitimate labor organization.

- Compliance with procedural requirement.(a) Notice of Strike



(b) Cooling of Period – that period of time given the NCMB to mediate and conciliate the parties before staging a strike or lockout.

(c) Strike Vote – usually coincide with the cooling-off period.

(d) 7-day strike ban

3. Consistent with National Interest

Should the dispute remain unsettled until the lapse of the requisite number of days from the mandatory filing of the notice (cooling-off period), the labor union may strike or the employer may declare lockout. [263 (e)]

A decision to declare a lockout must be approved by MAJORITY OF THE BOARD OF DIRECTORS of the corporation or association or of the partners in a partnership, obtained by secret ballot in a meeting called for that purpose. The decision shall be valid for the duration of the dispute based on substantially the same grounds considered when the strike or lockout vote was taken. The Department may, at its own initiative or upon the request of any affected party, supervise the conduct of the secret balloting. [263(f)]

Strike Vote – a requirement wherein the decision to declare a strike must be:

1. Approved by the MAJORITY of the total Union membership in the bargaining unit concerned (not of the whole bargaining unit) [263 (f)]

2. Obtained by SECRET BALLOT in MEETINGS or REFERENDA called for the purpose.

- The report of the strike vote must be reported to the DOLE at least 7 days before the intended strike subject to the cooling-off period.

7-day Strike Ban – the 7 day waiting period before the date of the purported strike (within which the union intending to conduct a strike must at least submit a report to the DOLE of the result of the Strike Vote) intended to give the department an opportunity to VERIFY whether the projected strike really carries the imprimatur of the majority of the union members.

“Welga ng Bayan” – It is a ILLEGAL because it is a political strike and therefore there is neither bargaining deadlock nor any ULP. It is political rally.

- It is not a “strike” under the Labor Code because there is no labor dispute involved.

V. Injunctions against strike

Secretary of Labor and Employment shall issue orders, prohibitions or injunctions.

In line with the national concern for and the highest respect accorded to the right of patients to life and health, strikes and lockouts in hospitals, clinics and similar medical institutions shall, to every extent possible, be avoided, and all serious efforts, not only by labor and management but government as well, be exhausted to substantially minimize, if not prevent, their adverse effects on such life and health, through the exercise, however legitimate, by labor of its right to strike and by management to lockout. In labor disputes adversely affecting the continued operation of such hospitals, clinics or medical institutions, it shall be the duty of the striking 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 insure 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. [263 (g)]

VI. Consequences of Strikes

If Strike is Legal:

- Strikers are not entitled to their wages during the period of strike, even if the strike is legal.

- Except: 1. In case of ULP STRIKE, in the discretion of the

authority deciding the case.2. Where the strikers VOLUNTARILY AND

UNCONDITIONALLY OFFERED TO RETURN TO WORK, but the employer refused to accept the offer. - They are entitled to backwages from the

date the offer was made.3. Where there is RETURN-TO-WORK ORDER and

the employees are DISCRIMATED against.- They are entitled to backwages from the

date of discrimination.

REINSTATEMENT:- Striking employees are entitled to reinstatement

regardless of whether or not the strike was the consequence of the employer’s ULP.

- Because while out on strike, the strikers are not considered to have abandoned their employment, but rather have only ceased from their labor.

- Except: 1. Union officers who knowingly participate in an

illegal strike; and- Provided , That mere participation of a

worker in a lawful strike shall not constitute sufficient ground for termination of his employment, even if a replacement had been hired by the employer during such lawful strike.

2. Any striker/union member who knowingly participates in the commission of illegal acts during the strike.

Prohibited Activities:

Labor organization [264 (a)](a) No labor organization or employer shall declare a

strike or lockout - Without first having bargained collectively in

accordance with Title VII of this Book or- Without first having filed the notice required in the

preceding Article or- Without the necessary strike or lockout vote first

having been obtained and reported to the Department.

(b) No strike or lockout shall be declared- After assumption of jurisdiction by the President

or the Secretary or - After certification or submission of the dispute to

compulsory or voluntary arbitration or - During the pendency of cases involving the same

grounds for the strike or lockout.

Third Persons [264 (b)](b) No person shall obstruct, impede or interfere with by

force, violence, coercion, threats or intimidation - Any peaceful picketing by employees- During any labor controversy or in the exercise of

the right of self-organization or collective bargaining or shall aid or abet such obstruction or interference.

Employers [264 (c)](c) No employer

- Shall use or employ any STRIKE-BREAKER nor - Shall any person be employed as a STRIKE-

BREAKER



Public Official or Employee [264 (d)](d) No public official or employee, including officers and

personnel of the New Armed Forces of the Philippines or the Integrated National Police, or armed persons, - Shall bring in, introduce or escort in any manner,

any individual who seeks to replace strikers in entering or leaving the premises of a strike area, or work in place of the strikers.

- The police force shall keep out of the picket lines - Unless actual violence or other criminal

acts occur therein: - Provided, That nothing herein shall be

interpreted to prevent any public officers from taking any measure necessary to maintain peace and order, protect life and property, and/or enforce the law and legal order.

Persons engaged in picketing(e) No person engaged in picketing shall

- Commit any act of violence, coercion or intimidation or

- Obstruct the free ingress to or egress from the employer's premises for lawful purposes, or

- Obstruct public thoroughfares.

ARREST AND DETENTION

- No union members or union organizers may be arrested or detained by Police officers for union activities without previous consultations with the Secretary of Labor and Employment. [266]

- Except on the grounds of:- National Security- Public Peace- Commission of a Crime

TERMINATION OF EMPLOYMENT

Regular Employee – The employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer. [280]

- Except: - Where the employment has been fixed for a

specific project or undertaking, the completion or termination of which has been determined at the time of the engagement of the employee or

- Where the work or service to be performed is seasonal in nature and the employment is for the duration of the season.

- Test: Nature of the employment.

- Any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists

- An employee who is allowed to work after a probationary period. [281]

Casual Employee – Employees whose employment is not regular, temporary of seasonal.

Probationary – Employment shall not exceed six months from the date the employee started working. [281]- Unless:

- It is covered by an apprenticeship agreement stipulating a longer period.

- Services may be terminated for a just cause or when he fails to qualify as a regular employee in

accordance with reasonable standards made known by the employer to the employee at the time of his engagement.

Brent School vs. Zamora

Probationary employment shall not exceed six months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. The services of an employee who has been engaged in a probationary basis may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. An employee who is allowed to work after a probationary period shall be considered a regular employee.

Article 280 of the Labor Code, under a narrow and literal interpretation, not only fails to exhaust the gamut of employment contracts to which the lack of a fixed period would be an anomaly, but would also appear to restrict, without reasonable distinctions, the right of an employee to freely stipulate with his employer the duration of his engagement, it logically follows that such a literal interpretation should be eschewed or avoided. The law must be given a reasonable interpretation, to preclude absurdity in its application.

Accordingly, and since the entire purpose behind the development of legislation culminating in the present Article 280 of the Labor Code clearly appears to have been, as already observed, to prevent circumvention of the employee's right to be secure in his tenure, the clause in said article indiscriminately and completely ruling out all written or oral agreements conflicting with the concept of regular employment as defined therein should be construed to refer to the substantive evil that the Code itself has singled out: agreements entered into precisely to circumvent security of tenure. It should have no application to instances where a fixed period of employment was agreed upon knowingly and voluntarily 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 where it satisfactorily appears that the employer and employee dealt with each other on more or less equal terms with no moral dominance whatever being exercised by the former over the latter.

Paraphrasing Escudero, respondent Alegre's employment was terminated upon the expiration of his last contract with Brent School on July 16, 1976 without the necessity of any notice. The advance written advice given the Department of Labor with copy to said petitioner was a mere reminder of the impending expiration of his contract, not a letter of termination, nor an application for clearance to terminate which needed the approval of the Department of Labor to make the termination of his services effective. In any case, such clearance should properly have been given, not denied. [2-5-90]

Security of Tenure – the constitutional right granted the employee, that the employer shall not terminate services of an employee except for just cause or when authorized by law. [279]

Valid Dismissal – when the dismissal is based on just or authorized cause with the observance of due process provided for by law.

Pioneer Texturizing Corp. vs. NLRC

Equally unmeritorious is petitioners' assertion that the dismissal is justified on the basis of loss of confidence. While loss of confidence , as correctly argued by petitioners, is one of the valid grounds for termination of employment, the same, however, cannot be used as a pretext to vindicate each and every instance of unwarranted dismissal. To be a valid ground, it must be



shown that the employee concerned is responsible for the misconduct or infraction and that the nature of his participation therein rendered him absolutely unworthy of the trust and confidence demanded by his position. In this case, petitioners were unsuccessful in establishing their accusations of dishonesty and tampering of records with intention of cheating. Indeed, even if petitioners' allegations against de Jesus were true, they just the same failed to prove that her position needs the continued and unceasing trust of her employers. The breach of trust must be related to the performance of the employee's functions. Surely, de Jesus who occupies the position of a reviser/trimmer does not require the petitioners' perpetual and full confidence.

Corollary to our determination that de Jesus was illegally dismissed is her imperative entitlement to reinstatement and backwages as mandated by law. Under Article 223 of the Labor Code, as amended, an employer has two options in order for him to comply with an order of reinstatement, which is immediately executory , even pending appeal. Firstly, he can admit the dismissed employee back to work under the same terms and conditions prevailing prior to his dismissal or separation or to a substantially equivalent position if the former position is already filled up. Secondly, he can reinstate the employee merely in the payroll. Failing to exercise any of the above options, the employer can be compelled under pain of contempt, to pay instead the salary of the employee. In case the decision includes an order of reinstatement, the Labor Arbiter shall direct the employer to immediately reinstate the dismissed or separated employee even pending appeal .

Furthermore, the rule is that all doubts in the interpretation and implementation of labor laws should be resolved in favor of labor. In ruling that an order or award for reinstatement does not require a writ of execution the Court is simply adhering and giving meaning to this rule. Henceforth, we rule that an award or order for reinstatement is self-executory. After receipt of the decision or resolution ordering the employee's reinstatement, the employer has the right to choose whether to re-admit the employee to work under the same terms and conditions prevailing prior to his dismissal or to reinstate the employee in the payroll. In either instance, the employer has to inform the employee of his choice. The notification is based on practical considerations for without notice, the employee has no way of knowing if he has to report for work or not. [10-16-97]

JUST CAUSES: [282]

1. Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;

Serious misconduct:- Must be serious- Must relate to the performance of the employee’s

duties.- Must show that the employee has become unfit to

continue working for the employer

- Example:- Immorality- Sexual harassment.- Immorality per se, if detrimental to the

establishment

Willful Disobedience:- The orders, regulations and instructions of the

employer or his representative must be:a. Reasonable and lawful.b. Sufficiently known to the employee.c. In connection with the duties which the

employee has been engaged to discharge.

Sexual Harassment – Is any demand, request or requirement of a sexual favor with the use of

authority, influence or moral ascendancy, done in the work-related or employment environment or in an education or training environment.

- Committed irregardless of whether the demand, request or requirement was accepted.

2. Gross and habitual neglect by the employee of his duties; - Implies want or absence of or failure to exercise

slight care or diligence, or the entire absence of care

- Evinces a thoughtless disregard of consequences without exerting any effort to avoid them.

- Negligence must both gross and habitual.

3. Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative; - Willful if done intentionally, knowingly and

purposely without justifiable cause.- It must be shown that the employee concerned

holds a position of trust, betrayal of which is the essence of the offense for which an employee is penalized.

4. 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 representative; and

5. Other causes analogous to the foregoing.

- Abandonment – absence without a justifiable cause with a clear intent to sever the employer-employee relationship.

- Elements:A.The failure to report for work or

absence without valid or justifiable reason.

B. A clear intention to sever ER-EE relationship. [Brewer case]

- Circumstances belying it:a. The attempt of the employee to report

back to work which was negated by the company when the guards refused them entry.

b. They took immediate steps to protect their dismissal.

c. They filed a case of illegal dismissal.[Malayang Samahan ng mga Manggagawa sa Greenfields vs. Ramos 2-28-00]

- Prolonged, absence does not, by itself, necessarily mean abandonment. Accordingly, there must be a concurrence of intention and overt acts from which it can be inferred that the employee is no longer interested in working. [Policarpio v. Vicente Dy Sun,]

Brew Master International vs. NAFLU

Complainant appellant's prolonged absences, although unauthorized, may not amount to gross neglect or abandonment of work to warrant outright termination of employment. Dismissal is too severe a penalty. For one, the mere fact that complainant-appellant is a first offender must be considered in his favor. Besides, it is generally impossible for an employee to anticipate when he would be ill or compelled to attend to some family problems or emergency like in the case at bar.

Although he violated petitioner's rules and regulations, his absences were justified: A scrutiny of the facts discloses that complainant's absence was



precipitated by grave family problem as his wife unexpectedly deserted him and abandoned the family. Considering that he had a full-time job, there was no one to whom he could entrust the children and he was thus compelled to bring them to the province. It would have been extremely difficult for him to have been husband and wife/father and mother at the same time to the children in the metropolis. He was then under emotional, psychological, spiritual and physical stress and strain. The reason for his absence is, under these circumstances, justified. While his failure to inform and seek petitioner's approval was an omission which must be corrected and chastised, he did not merit the severest penalty of dismissal from the service.

The Office of the Solicitor General submitted, however, that "it would be at the height of callousness if one, considering his plight under the circumstance[s], would not give due consideration to complainant's explanation. There has to be an exception."

In declaring him guilty of abandonment, petitioner merely relied on its Rules and Regulations which limited its application to a six-day continuous absence, contrary to the purpose of the law. While the employer is not precluded from prescribing rules and regulations to govern the conduct of his employees, these rules and their implementation must be fair, just and reasonable. It must be underscored that no less than our Constitution looks with compassion on the workingman and protects his rights not only under a general statement of a state policy, but under the Article on Social Justice and Human Rights, thus placing labor contracts on a higher plane and with greater safeguards. [4-17-97]

DUE PROCESS:

Just Causes1. Notice – specifying the ground/s for termination and

giving the said employee reasonable opportunity within which to explain

2. Hearing or conference – held during which the employee concerned is given the opportunity to the charge, present the evidence and present the evidence presented against him.

3. Written Notice of Termination – indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination.

Authorized Cause1. Notice – to the employee AND to the appropriate

Regional Office of DOLE at least 30 days before the effectivity of the termination specifying the ground/s for termination.

Century Textile Mills vs. NLRC

The twin requirements of notice and hearing constitute essential elements of due process in cases of employee dismissal: the requirement of notice is intended to inform the employee concerned of the employer's intent to dismiss and the reason for the proposed dismissal; upon the other hand, the requirement of hearing affords the employee an opportunity to answer his employer's charges against him and accordingly to defend himself therefrom before dismissal is effected. Neither of these two requirements can be dispensed with without running afoul of the due process requirement of the 1987 Constitution. [161 SCRA 528]

Agabon vs. NLRC [11-17-04]

- Dismissal is based on just cause but failed to comply with the notice requirement

- The sanction to be imposed upon him should be tempered because the dismissal was in effect

initiated by an act imputable to the employee. The court awarded P30,000.00

- Dismissal is based on authorized cause but the employer failed to comply with the notice requirement.

- The sanction should be stiffer because the dismissal process was initiated by the employer’s exercise of his management prerogative. The Court awarded P50,000.00

- Procedural infirmity cannot be cured. It should not invalidate dismissal. The dismissal should be upheld because it was established that the petitioners abandoned their jobs to work for another company. Private respondent, however, did not follow the notice requirements and instead argued that sending notices to the last known addresses would have been useless because they did not reside there anymore. Unfortunately for the private respondent, this is not a valid excuse because the law mandates the twin notice requirements to the employee’s last known address. Thus, it should be held liable for non-compliance with the procedural requirements of due process.

AUTHORIZED CAUSES:

1. Automation – installation of labor-saving devices.

2. Redundancy – superfluity in the performance of a particular work.- Exist where the services of an employee are in

excess of what is reasonably demanded by the actual requirements of the enterprise.

- Reorganization as cost-saving device is acknowledged by jurisprudence.

3. Retrenchment to prevent losses – there is excess of employee and employer wants to prevent financial losses.- Provided:

- There is substantial loss- There is imminence of such substantial

losses.- Retrenchment would effectively prevent

the expected and additional losses.- Alleged losses and expected losses must

be proven by sufficient and convincing evidence.

4. Closing or Cessation of Operation of the establishment or undertakings.- Unless:

- The closing is for the circumventing the provisions of the Labor Code.

CHENIVER DECO PRINT vs. NLRC

Broadly speaking, there appears no complete dissolution of petitioner’s business undertaking but the relocation of petitioner’s plant to Batangas, in our view, amounts to cessation of petitioner’s business operations in Makati. It must be stressed that the phrase "closure or cessation of operation of an establishment or undertaking not due to serious business losses or reverses" under Article 283 of the Labor Code includes both the complete cessation of all business operations and the cessation of only part of a company’s business.

There is no doubt that petitioner has legitimate reason to relocate its plant because of the expiration of the lease contract on the premises it occupied. That is its prerogative. But even though the transfer was due to a reason beyond its control, petitioner has to accord its employees some relief in the form of severance pay.

As public respondent observed, the subsequent transfer of petitioner to another place hardly accessible to its workers resulted in the latter’s untimely separation from the service not to their own liking, hence, not construable as resignation. Resignation must be



voluntary and made with the intention of relinquishing the office, accompanied with an act of relinquishment.

Consequently, petitioner herein must pay the employees their termination pay in the amount corresponding to their length of service. Since the closure of petitioner’s business is not on account of serious business losses, petitioner shall give private respondents separation pay equivalent to at least one (1) month or one-half (1/2) month pay for every year of service, whichever is higher. [2-17-00]

5. Disease- Incurable within 6 months and the continued

employment is prohibited by law or prejudicial to his health as well as to the health of his co-employees; and

- With a certification from public health officer that the disease is incurable within 6 months.

Just/AuthorizedCauses

DueProcess

Status Effect

Legal

- NO liability, only separation pay except if the cause is serious misconduct.

illegal

Reinstatement and Full Backwages

illegal

Reinstatement and Full Backwages

LegalPhp30,000.00 damages

LegalPhp50,000.00 damages

Hinatuan Mining Corporation vs. NLRC

Separation pay may be awarded only in cases when the termination of employment is due to: (a) installation of labor saving devices, (b) redundancy, (c) retrenchment, (d) closing or cessation of business operations, (e) disease of an employee and his continued employment is prejudicial to himself or his co-employees, or (f) when an employee is illegally dismissed but reinstatement is no longer feasible. In fact, the rule is that an employee who voluntarily resigns from employment is not entitled in the separation pay, except when it is sanctioned by established employer practice of policy.

In the case at bar, it has been shown beyond doubt that there is an established employer practice of awarding separation pay to resigning employees. Private respondent is similarly situated as Alcantara who was also a managerial employee of petitioner company and a non-union member when he voluntarily resigned from the service. Alcantara was awarded separation pay by the Labor Arbiter after finding that the previous resigning officers of petitioner company were given separation pay. As correctly ruled by the NLRC, to hold that private respondent is not entitled to separation pay would unduly discriminate against her. [2-21-97]

CAUSE OF TERMINATION

SEPARATION PAY

Automation- At least 1-month pay OR

- At least once a month pay for every year of service.

Whichever is higher

Redundancy- At least 1-month pay OR- At least once a month pay for every

year of service. Whichever is higher

Retrenchment- At least 1-month pay OR- At least ½ month pay for every year of

service.

Closure or Cessation of

operation

- At least 1-month pay OR- At least ½ month pay for every year of

service.

Disease

- At least 1-month pay OR- At least ½ month pay for every year of

service. Whichever is higher

-- Fraction of at least 6 months shall be considered 1 whole year.

Constructive Dismissal – Exist where there is cessation of work because continued employment is rendered impossible, unreasonable or unlikely, as an offer involving a demotion in rank and a diminution in pay.

While termination of employment is prerogative of management to dismiss or lay-off an employee, the exercise of that prerogative must be made without abuse of discretion, for what is at stake is not only the employee’s position

Preventive Suspension- If continued employment poses a serious and imminent

threat to the life or property of the employer or his co-employees.

- Period of suspension not more than 30 days, otherwise, employer should be administratively fined.

RELIEF IF ILLEGALLY DISMISSED:

A. ReinstatementB. BackwagesC. Financial assistance, only in valid dismissal other

than serious misconduct or other causes reflecting adversely on the employee’s moral character. [Chua vs. NLRC, 218 SCRA 545]

D. Moral and Exemplary Damages in proper ULP cases of dismissal in violation of the Civil Code provision on human relations.

PLDT vs. NLRC

The rule embodied in the Labor Code is that a person dismissed for cause as defined therein is not entitled to separation pay. The cases above cited constitute the exception, based upon considerations of equity. Equity has been defined as justice outside law, being ethical rather than jural and belonging to the sphere of morals than of law. It is grounded on the precepts of conscience and not on any sanction of positive law.

Strictly speaking, however, it is not correct to say that there is no express justification for the grant of separation pay to lawfully dismissed employees other than the abstract consideration of equity. The reason is that our Constitution is replete with positive commands for the promotion of social justice, and particularly the protection of the rights of the workers. The enhancement of their welfare is one of the primary concerns of the present charter. The categorical mandates in the Constitution for the improvement of the lot of the workers are more than sufficient basis to justify



the award of separation pay in proper cases even if the dismissal be for cause.

The Court notes, however, that where the exception has been applied, the decisions have not been consistent as to the justification for the grant of separation pay and the amount or rate of such award.

But where the cause of the separation is more serious than mere inefficiency, the generosity of the law must be more discerning. There is no doubt it is compassionate to give separation pay to a salesman if he is dismissed for his inability to fill his quota but surely he does not deserve such generosity if his offense is misappropriation of the receipts of his sales. This is no longer mere incompetence but clear dishonesty. A security guard found sleeping on the job is doubtless subject to dismissal but may be allowed separation pay since his conduct, while inept, is not depraved. But if he was in fact not really sleeping but sleeping with a prostitute during his tour of duty and in the company premises, the situation is changed completely. This is not only inefficiency but immorality and the grant of separation pay would be entirely unjustified.

We hold that henceforth separation pay shall be allowed as a measure of social justice only in those instances where the employee is validly dismissed for causes other than serious misconduct or those reflecting on his moral character. Where the reason for the valid dismissal is, for example, habitual intoxication or an offense involving moral turpitude, like theft or illicit sexual relations with a fellow worker, the employer may not be required to give the dismissed employee separation pay, or financial assistance, or whatever other name it-is called, on the ground of social justice. [164 SCRA 671]

Reinstatement – restoration of the employee to the state from which he has been unjustly removed or separated without loss of seniority rights and privileges.

- Forms:

- Actual or Physical- The employee shall be admitted back to work.

- Reinstatement in the payroll- The employee is merely reinstated in the

payroll.

- The court can order the reinstatement of an employee even if the complaint does not include a prayer for reinstatement, unless, of course the employee has waived his right to reinstatement.

- An Employee who is unjustly dismissed is entitled to reinstatement, among others. The mere fact that the complaint did not pray for reinstatement will not prejudice the employee, because technicalities of law and procedure are frowned upon in labor proceedings [General Baptist Bible College vs. NLRC, 219 SCRA 549]

- If Position is NO LONGER AVAILABLE: - The employee should be given a SUBSTANTIALLY

EQUIVALENT POSITION if there is an order of reinstatement but the position is no longer available.

- If NO SUBSTANTIALLY EQUIVALENT POSITION IS AVAILABLE- Reinstatement should not be ordered

because that would in effect compel the employer to do the impossible.

- The employee should merely be given SEPARATION PAY consisting of ONE MONTH SALARY FOR EVERY YEAR OF SERVICE.

[Union Supervisors vs. Sec. Of Labor 128 SCRA 442]

- Non-reinstatement circumstances:1. Transfer of Business ownership2. Impossibility due to abolition of the position.3. When the business has closed down.

4. Physical incapacity of the employee5. Doctrine of strained relations

- When the employer can no longer trust the employee and vice-versa, reinstatement could not effectively serve as a remedy.

- Applies only to positions that require trust and confidence.

Backwages – the relief to an employee to compensate them for lost earnings during the period of dismissal.- Shall cover the period from the date of dismissal of

the employee up to the date of actual reinstatement. Shall not exceed 3 years.

- Computed from the time of the illegal dismissal up to the time of actual reinstatement.- Shall include:

1. Transportation and emergency allowances

2. Vacation or service incentive leave and sick leave

3. 13th month pay- Cannot be awarded on following circumstances:

1. Death of the employee2. Physical and mental incapacity3. Business reverses4. Closure of Business5. Reinstatement of dismissed employee

confinement in jail.

Bustamante vs. NLRC

Backwages to be awarded to an illegally dismissed employee, should not, as general rule, be diminished or reduced by the earnings derived by him elsewhere during the period of his illegal dismissal. The underlying reason of this ruling is that the employee, while litigating the legality (illegality) of his dismissal, must still earn a living to support himself and family, while his backwages have to be paid by the employer as part of the price or penalty he has to pay for illegally dismissing his employee. The clear legislative intent of the amendment in Rep. Act No. 6715 is to give more benefits to workers than was previously given them under the Mercury Drug rule or the "deduction of earnings elsewhere" rule. Thus, a closer adherence to the legislative policy behind Rep. Act No. 6715 points to "full backwages" as meaning exactly that, i.e., without deducting from backwages the earnings derived elsewhere by the concerned employee during the period of his illegal dismissal. In other words, the provision handling for "full backwages" to illegally dismissed employees is clear, plain and free from ambiguity and, therefore, must be applied without attempted or strained interpretation. Index animi sermo est.

Therefore, in accordance with R.A. No. 6715, petitioners are entitled on their full backwages, inclusive of allowances and other benefits or their monetary equivalent, from the time their actual compensation was withheld on them up to the time of their actual reinstatement. [11-28-96]

TERMINATION BY EMPLOYEEd. Without Just Cause – by serving a written notice on

the employer at least 1-month in advance. The employer upon whom no such notice was served may hold the employee liable for damages.

e. With Just Cause – an employee may put an end to establish without serving any notice on the employer for any of the following just cause:

1. Serious insult by the employer or his representative on the hour and person of the employee.

2. Inhuman and unbearable treatment3. Commission of a crime or offense by the

employer or his representative against the person of the employee or any of the immediate members of the family

4. Other causes analogous to any of the foregoing.



RETIREMENT

– The age of retirement is that specified in the CBA or in the employment contract if it is not specified in the former. [287]

- Benefits: - A retiree is entitled to a retirement pay equivalent to

at least ½ month salary for every year of service. Fraction of at least 6 months is considered as 1 whole year.- “1/2 month salary” means:

- 15 days + 1/12 of the 13th month pay; AND

- The cash equivalent of NOT more than 5 days of service incentive leave.

- All other benefits mutually agreed upon by the employer and employee.

- Does not apply to: - Government employees- Employees of retail service and

agricultural establishments or operations regularly employing not more than ten employees.

- R.A. No. 7641 - All employees regardless of their position

designation or status and irrespective of the method by which their wages are paid are entitled to retirement benefits under R.A. No. 7641 upon compulsory retirement at the age of 65 or upon optional retirement a t 60 or more but not 65.

- Applies in the absence of a retirement plan

- The rule is different with respect to underground mining employees whose optional retirement age is 50-60 provided they have at least served for a period of 5 years. [287 as amended by RA 8558]

PRESCRIPTION OF OFFENSES

CAUSES PERIOD OF PRESCRIPTION

Money Claims3 years from accrual of the

causes of action.

ULP1 year from accrual of the

causes of action.

Illegal Dismissal4 years from accrual of the

causes of action.

Reinstatement 4 years

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