labor relations box questions - azucena- final

Labor Relations

Answers to Boxed Questions in Azucena’s Labor Code Book II

Box 1

1. What are the policy objectives of our labor relations law?

Ans.: It is the policy of the State;a. To promote and emphasize the primacy of

free collective bargaining and negotiations, including voluntary arbitration, mediation and conciliation, as modes of settling labor or industrial disputes;

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;

d. To promote the enlightenment of workers concerning their rights ansd obligations as union members and as employees;

e. To provide an adequate administrative machinery for the expeditious settlement of labor or industrial disputes;

f. To ensure a stable but dynamic and just industrial peace; and

g. To ensure the participation of workers in decision and policymaking processes affecting their rights, duties and welfare.

2. Employer-employee relationship must exist so that labor relations may apply within an enterprise. What factors determine the existence of such relationship?

Ans.: The existence of employer-employee relationship is determined by the presence of the following elements;

a. Selection and engagement of the employee

b. Payment of wages

c. Power to dismiss; andd. Power to control the employee’s

conduct.

3. What are considered labor disputes? What are the available remedies?

Ans.: Labor disputes are any controversy or matter concerning terms and conditions of employment or the association or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.

Remedies in Labor Disputes;a. Grievance procedure.b. Conciliation c. Mediationd. Enforcement or compliance ordere. Certification of bargaining

representatives.f. Arbitration (either Voluntary or

Compulsory).g. Assumption of jurisdiction h. Certification of NLRCi. Injunction.j. Judicial actionk. Appeal.l. Review by Court.m. Compromise agreement.

Box 2

1. What is the NLRC?Answer: The NLRC is the National Labor Relations Commission. It exercises exclusive appellate jurisdiction over cases decided by the Labor Arbiter.

2. Is the NLRC independent of the Department of Labor and Employment?Answer: Yes. It is attached to the DOLE for program and policy coordination only. The

Bukidnon State University – College of LawBatch 2014

Secretary of Labor merely exercises administrative supervision over the NLRC. Such supervision does not extend to the power to review, reverse, revise or modify decisions of the NLRC in the exercise of its judicial functions.

3. How is the NLRC’s adjudicatory powers distributed?Answer: The NLRC “shall exercise its adjudicatory and all other powers, functions and duties through its divisions.” The “division” is a legal entity, not the persons who sit in it. The law lodges the adjudicatory power on each of the 8 divisions, not on the individual commissioners nor on the whole commission.

Box 3

1. What is RAB? Regional Arbitration BoardRegional Arbitration Branch" shall

mean any of the regional arbitration branches or sub-regional branches of the Commission.

2. What cases fall within the jurisdiction of the Labor Arbiter?

Art. 217. Jurisdiction of the Labor Arbiters and the Commission.

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

1. Unfair labor practice cases;

2. Termination disputes;

3. If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of work and other terms and

conditions of employment;

4. Claims for actual, moral, exemplary and other forms of damages arising from the employer-employee relations;

5. Cases arising from any violation of Article 264 of this Code, including questions involving the legality of strikes and lockouts; and

6. Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, all other claims arising from employer-employee relations, including those of persons in domestic or household service, involving an amount exceeding five thousand pesos (P5,000.00) regardless of whether accompanied with a claim for reinstatement.

7.3. What are “Corporate Disputes”? Who has

jurisdiction over them?

Corporate disputes are controversies arising out of intra-corporate or partnership relations, between and among stockholders, members, or associates; between any or all of them and the corporation, partnership or associates of which they are stockholders, members or associates respectively; and between such corporation, partnership or association and the state insofar as it concerns their individual franchise or right to exist as such entity.

Jurisdiction Over Intra-Corporate Disputes Transferred from SEC to RTC

4. Where is the venue of the compulsory arbitration cases?.

All cases which Labor Arbiters have authority to hear and decide may be filed in the Regional Arbitration Branch having jurisdiction over the workplace of the complainant or petitioner.

Box 4

1) What are the powers of the NLRC? (See Art 218

of LC, now Art 224, 2013 Codal)

>> POWERS OF THE COMMISSION


(i) RULE-MAKING POWER

The Commission has the power to promulgate

rules and regulations:

a) governing the hearing and dispostition of

cases before it and regional branches;

b) pertaining to its internal functions

c) those that may be necessary to carry out

the powers of this Code.

(ii) POWER TO ISSUE COMPULSORY PROCESSES

The Commission has the power to :

a) administer oaths;

b) summon parties;

c) issue subpoenas ad testificandum and

duces tecum

(iii) POWER TO INVESTIGATE AND HEAR DISPUTES

WITHIN ITS JURISDICTION

The Commission has the power to:

a) conduct investigations for the

determination of a question, matter or controversy

within

its jurisdiction;

b) proceed to hear and determine the

disputes in the manner laid down under paragraph (c)

Art. 218 (now Art 224, 2013 Codal)

(iv) CONTEMPT POWER

The procedures and penalties thereof are

provided under paragraph (d) Art. 218

(now Art. 224 , 2013 Codal)

(v). POWER TO CONDUCT OCULAR INSPECTION

Under Art 219 (now Art. 225), the chairman,

any commissioner, labor arbiter or their duly

authorized representatives may, at any time

during working hours:

a) conduct an ocular inspection on any

establishment, building, ship or vessel, place or

premises, including any work, materiak,

implement, machinery, appliance or any object

therein;

b) ask any employee, laborer or any

person, as the case may be, for any information or

data concerning any matter or question

relative to the object of the investigation.

Note: Author believes this power is adjunct to the

adjudicatory function and exercised only to assist or

expedite adjudication or a pending dispute. Not

meant to duplicate the visitorial-enforcement

authority under Art 128.

(vi) ADJUDICATORY POWER

Original: Each of the NLRC has original

jurisdictions over petition for injunction or temporary

restraining order under Art. 218 (e). It also had the

original jurisdiction to hear and decide "National

Interest" cases certified to it by the Sec.of Labor under

Art. 263 (g).

Appellate: The NLRC has exclusive appellate

jurisdiction over all cases decided bu the lanor arbiters

and the DOLE regional director or hearing of officers

under Art. 219.

(vii) POWER TO ISSUE INJUNCTION OR

TEMPORARY RESTRAINING ORDER

See Art 218 par. [e]

2) Injunction is frowned upon in labor disputes.

What are the pre-conditions before an injuctive writ

be issued? (See Art 218 par. [e]) (Art 224, 2013 Codal)

>> As a rule, restraining orders or injunctions do not

issue ex parte and only after compliance with the

following requisites, to wit:

a. a hearing held "after due and personal notice

thereof has been served, in such a manner as the

Commission shall direct, to all known persons

against whom relief is sought, and also to the Chief

Executive and other public officials of the province

or city within which the unlawful acts have been

threatened or committed charged with the duty to

protect complainant's property;

b. reception at the hearing of "testimony of

witnesses, with opportunity for cross-examination,

in support of the allegations of a complaint made

under oath," as well as "testimony in opposition


thereto, if offered x x";

c. "A finding of fact by the Commission, to the effect:

(1) that the prohibited or unlawful acts have

been threatened and will be committed and will be

continued unless restrained, but no injunction or TRO

shall be issued on account of any threat,

prohibited or unlawful act, except against the person or

persons, association or organization making the threat

or committing the prohibited or unlawful act or actually

authorizing or ratifying the same after actual knowledge

thereof;

(2) that substantial and irreparable injury to

complainant's property will follow;

(3) that as to each item of relief to be granted,

greater injury will be inflicted upon the complainant by

the denial of relief than will be inflicted upon

defendants by the granting of relief;

(4) that the complainant has no adequate

remedy at law;

(5) that the public officers charged with the duty

to protect complainant's property are unable or

unwilling to furnish adequate protection.

Box 5

1. Technical rules are not strictly followed in proceedings before the NLRC and the Labor Arbiter. How is this rule reconciled with the requirement of procedural due process?

*Simplification of procedure, without regard to technicalities of law or procedure and without sacrificing the fundamental requisites of due process.In Ang Tibay vs CIR case, the court ruled that, it is not narrowly constrained by the technical rules of procedure. However this does not mean that it can entirely ignore or disregard the fundamental and essential requirements of due process in trials and investigation of administrative character. There are cardinal primary rights which must be respected even in proceedings of this character:

a. Right to hearing

b. Tribunal must consider the evidence presented

c. Decision must be supported by something (evidence)

d. Supporting evidence must be substantial

e. Decision must be rendered on the evidence presented or at least contained in the record and disclosed to the parties affected

f. The body or any of its judges must act on its own independent consideration of the law and facts, and not simply accept the views of the subordinate in arriving at a decision: and

g. Decide in such a manner that parties can know the various issues involved and the reason for the decision.

2. How are compulsory arbitration cases heard and decided? The NLRC or Labor Arbiter to deicide case

on the basis of position papers and other documents submitting without resorting to technical rules of evidence as observed in the regular court of justice. The evidence presented before it must at least have a modicum of admissibility for it to be given some probative value. Not only must there be some evidence to support a finding or conclusion, but evidence must be substantial. Substantial evidence is more that a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

Box 6

1. A labor arbiter’s decision is appealable to the NLRC & up to the CA/SC. On what grounds? When?


ANS: As provided by law, labor arbiter’s decision is appealable to the NLRC within 10 calendar days from receipt of such decision only on any of the following grounds:

a. If there is a prima facie evidence of abuse of discretion on the part of the Labor Arbiter;

b. If the decision was secured through fraud or coercion, including graft & corruption;

c. If made purely on questions of law; and

d. If serious errors in the findings of fact are raised which would cause grave or irreparable damage or injury to the appellant.

2. At each level of appeal what are the prerequisites? Is a motion for reconsideration a prerequisite?

ANS: The following are the perquisites for the perfection of appeal:

a. It must be filed within the reglementary period;

b. It must be verified by appellant himself;

c. It must be in the form of a memorandum of appeal in three (3) legibly typewritten copies which shall state the grounds relied upon, the supporting arguments, the relief prayed for& the date the appellant received the appealed decision or order. The appeal memorandum should be accompanied by a certificate of non-forum shopping, proof of service on the other party, proof of payment of appeal fee, & cash or surety bond.

If the judgment includes monetary award, appeal is perfected by posting a bond

in a form money or security bond.

A motion for reconsideration is not a prerequisite in order that an appeal maybe perfected because technical rules is not binding in labor cases. Hence, if a motion for reconsideration is filed, it considered an appeal, provided that all the requisites for perfection of appeal are present

3. What are the limits to NLRC’s appellate jurisdiction?

ANS: The NLRC shall, in case of perfected appeals, limit itself to reviewing those issues which are raised on appeal. Those which are not raised shall be final & executory.

4. How is a final decision of the labor arbiter or the NLRC executed?

ANS: The decision or order of the NLRC or a Labor Arbiter that finally disposes of a case is enforced by an order or writ of execution upon motion of the winning party or upon the initiative of the Labor Arbiter or the NLRC that issued such decision. A copy of such decision or order should have been furnished to the parties and their counsels or authorized representatives.

5. May a regional trial court issue an injunction against a NLRC decision?

ANS: As a general rule, Regional Trial Court has no jurisdiction to issue temporary restraining order in labor cases. However, when a third-party to the action, asserts a claim over the property levied upon, the third-party may vindicate his claim by an independent action which may stop the execution. Thus, the above-stated rule applies only when there is no third-party claimant is involved.

Box 7Bukidnon State University – College of Law

Batch 2014

1. What kind of cases fall within BLR's jurisdiction.?

Inter/intra union dispute

cba registration

Labor education

2. May labor standards violations be settled by compromise? How this done?

It must be voluntarily agreed upon by the parties with the assistance of the BLR or the regional office of DOLE- final and binding upon the parties and can no longer be repudiated.

The only time NLRC or any courts can assume jurisdiction over issues involved therein: a. in case of non-compliance thereof b. if there is prima facie evidence that the settlement was obtained through fraud, misrepresentation or coercion.

The assistance of the BLR or the regional office of the DOLE in the execution of a compromise settlement is a basic requirement. Without it, there can be no valid compromise settlement. Mere appearance before BLR or the regional office of the DOLE to file the already executed compromise settlement is not the “assistance” required by the law.

3. May such compromise be valid if the agreement sets terms lower than the statutory standards?

In order for compromise agreement to be valid, one of its substantial requirement is that it must not be contrary to law, morals or public policy. Thus, this agreement must not set terms contrary to what the law requires as minimum standards.

4. Where, when, and how is CBA registered?

Registration of Collective Bargaining Agreements

Where to file:

With the Regional Office which issued the certificate of registration/certificate of creation of chartered local.

If the certificate of creation of the chartered local was issued by the bureau, the agreement shall be filed with

the Regional Office which has jurisdiction over the place where it principally operates.

Multi-employer collective bargaining agreements shall be filed with the Bureau

When to file:

within 30 days from execution of the CBA.

Requirements for registration

The application for CBA registration shall be accompanied by the original and 2 duplicate copies of the following documents.

1. CBA

2. A statement that the CBA was posted in at least 2 conspicuous places in the establishment concerned for at least 5 days before its ratification.

3. Statement that the CBA was ratified by the majority of the employees in the bargaining unit. The following documents must be certified under oath by the representative of the employer and the labor union. No other document shall be required in the registration of the CBA.

Procedure

1. Submission of chores of CBA to the BLR or regional office of dole within 30 days from execution, accompanied by the Requirements for registration.

2. Action upon the application fir registration within 5 calendar days from receipt thereof.

3. The regional office shall furnish the blr with copy of cba within 5 days from submission.

4. The blr regional office shall assess the employer for every cba, registration fee of not less than 1,000 or any amount deemed appropriate by secretary of labor.

5. Issuance of certificate of registration.

Box 8


1. What are the requirements for organizing and registering a union?Under the Labor Code of the Philippines, the following are the requirements for organizing and registering a union: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 percent (20%) of all the employees in the bargaining unit where it seeks to operate; (As amended by Executive Order No. 111, December 24, 1986)

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

e. Four (4) copies of the constitution and by-laws of the applicant union, minutes of its adoption or ratification, and the list of the members who participated in it. (As amended by Batas Pambansa Bilang 130, August 21, 1981)

In addition,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 (10) 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; and

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.[ Art. 238. Conditions for registration of federations or national unions. No federation

or national union shall be registered to engage in any organization activity in more than one industry in any area or region, and no federation or national union shall be registered to engage in any organizational activity in more than one industry all over the country.The federation or national union which meets the requirements and conditions herein prescribed may organize and affiliate locals and chapters without registering such locals or chapters with the Bureau.Locals or chapters shall have the same rights and privileges as if they were registered in the Bureau, provided that such federation or national union organizes such locals or chapters within its assigned organizational field of activity as may be prescribed by the Secretary of Labor.The Bureau shall see to it that federations and national unions shall only organize locals and chapters within a specific industry or union.] (Repealed by Executive Order No. 111, December 24, 1986)

2. What is a collective bargaining unit? How does it differ from a union?

As provided by the Implementing Rules of the Labor Code, a 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.

One of the requirements to register an independent union is that the applicant should have a membership of at least 20 percent of the employees “in the bargaining unit where it seeks to operate.”

Azucena differentiated CBU and Union in this manner:

CBU is different from and bigger than a union. Union members come from the CBU and there can be several rival unions within a CBU. While officers lead and represent a union, a union represents a CBU. But only one union should represent the whole CBU in bargaining with the employer. The representative is the union; the group represented is the CBU. The representative union, once determined, will represent even the members of other unions


as long as they are part of the CBU. This is why the representative union is called “exclusive bargaining representative (EBR).”

3. What is union affiliation and what are its implications? May an affiliate disaffiliate?

Union affiliation is defined in two ways:a) When an independently registered union

enters into an agreement of affiliation with a federation or a national union;

b) A chartered local which applies for and is granted an independent registration but does not disaffiliate from its mother federation or national union.

Implications:a) The relationship between a local or

chapter and the labor federation or natonal union is generally understood to be that of agency, where the local is the principal and the federation the agent.

b) Affiliation by a duly registered local union with a national union or federation does not make the local union lose its legal personality. Despite the affiliation, the local union remains the basic unit free to serve the common interest of all its members;

The right of a local union to disaffiliate from its mother union is well settled. It has been held that a local union, being a separate and voluntary association, is free to serve the interest of all its members including the freedom to disaffiliate when circumstances warrant. This right is consistent with the constitutional guarantee of freedom of association. “To disaffiliate is a right, but to observe the terms of affiliation is an obligation.”

SUBSTITUTIONARY DOCTRINE-employees cannot revoke the validly executed collective bargaining contract with their employer by the simple expedient of changing their bargaining agent. The CBA continues to bind the members of the new or disaffiliated and independent union up to the CBA’s expiration date.

4. How do unions merge or consolidate?

Merger of labor organizations is the 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; that is if Union A absorbs Union B, Union A remains and Union B disappears, or it can be B absorbing A. Another name for merger is “absorption.”

Consolidation of unions refers to the creation or formation of a new union arising from the unification of two or more unions; that is, if union A and union B consolidate themselves, both of them disappear and Union C is born. Another name for consolidation is “amalgamation.”

How?A. Notice of merger or consolidation of

independent labor unions, chartered locals and workers’ association shall be filed with and recorded by the Regional Office that issued the Certificate of Registration/Creation. Notice of merger or consolidation of federations or national unions shall be filed with and recorded by the Bureau.

B. The notice shall be accompanied by the following documents:a) Minutes of Merger/consolidation

meeting with the list of members who approve the same; and

b) Amended Constitution and by-laws and minutes of its ratification, unless ratification transpired in the Convention.

C. The Certificate of registration issued to merged labor organizations shall bear the registration number of one of the merging labor organizations as agreed upon by the parties.

5. On what grounds and upon whose petition may a union’s registration be cancelled?

The Labor Code provides the following:Art. 238. Cancellation of registration; appeal. The certificate of registration of any labor organization, whether national or local, shall be cancelled by the Bureau if it has reason to believe, after due hearing, that the said labor


organization no longer meets one or more of the requirements herein prescribed.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. Misrepresentation, false statements or fraud in connection with the election of officers, minutes of the election of officers, the list of voters;

c. Voluntary dissolution by the members.

D.O. No. 40-03(Rule XIV, Section 2) states: “Any party-in-interest may commence a petition for cancellation of a union’s registration, except in actions involving violations of Article 241, which can only be commenced by members of the labor organization concerned.” The employer is a “party-in-interest”, and jurisprudence reveals cases of cancellation of union registration based on petitions filed by the employer.

Box 9

1. What are the rights of union members?a. Political right – members right to vote and

be voted for, subject to lawful provisions on qualifications and disqualifications.

b. Deliberative and decision making right – right to participate in deliberations on major policy questions and decide them by secret ballot.

c. Right over money matters – rights against excessive fees; unauthorized collections of contribution or disbursement; the right to require adequate records of income and expenses and access to financial records; the right to vote on officers compensations, on proposed special assessments and be deducted a special assessment only with the members written authorizations.

d. Right to information – right to be informed about the org’s constitution and by-laws and CBA and about labor laws.

2. When, how and by whom are union officers elected?

They are elected directly by the members in secret ballot voting. The elections take place at intervals of five years which is their term of office. How it is done are matters left by law to the union’s constitution and by-laws or to agreements among the members. In the absence thereof, book V applies.

How may they be impeached or removed? They may be impeached by the ff

procedure:-Initiated by petition signed by at least 30%of all bona fide members of union;- General membership meeting shall be convened by the board chairman;- Union officer against whom impeachment charges have been filed, before impeachment vote be taken, shall be given ample opportunity to defend himself;- Majority of all the members of union be required to impeach or recall union officers.

They may be expelled if they violate the rights and conditions of the membership.

3. May a union member seek cancellations of his union’s registration?

Yes, provided the ff requisites must concur:

- Member desire to dissolve or cancel the registration should have been voted upon through secret balloting;- The balloting should take place in a meeting duly called for the purpose of deciding WON to dissolve the union;- The vote to dissolve should represents 2\3 affirmative vote of the general memberships;- Member’s resolution should be followed by an application for cancellation passed and submitted by the unions governing board, which must be attested to by the president.

4. What is check-off? When may it properly be done?

Check-off is a method of deducting from an employee’s pay at prescribed period, the amounts due the union for fees, fines, or assessments. Deductions for union service fees are authorized by law and do not require individual check off authorizations.‐


Box 10

1. What are the rights of a legitimate labor organization?

The following are the rights of a legitimate labor organization: (Art. 242)

1. To act as representatives of its members for the purpose of collective bargaining.

2. To be certified as the exclusive representative of all the employees in an appropriate collective bargaining unit for purposes of collective bargaining.

3. To be furnished by employer, upon written request, with its annual audited financial statements.

4. To own property, real or personal, for the use and benefit of the labor organization and its members.

5. To sue and be sued in its registered name.

6. To undertake all other activities designed to benefit the organization and its members, including cooperative, housing welfare and other projects not contrary to law.

7. Its income, properties, grants, endowments, gifts, donations, and contributions, used for their lawful purposes, shall be free from taxes, duties and assessments, except when this provision is expressly repealed by a special law.

2. May a union, as representative, settle by compromise its members’ money claims?

No. The exception is when there is a specific individual consent of each laborer concerned.

Box 11

1. In the private and public sectors, who are the persons allowed and not allowed to form and join labor organization?

>In private sectors all person employed in commercial, industrial and agricultural enterprise and in religions, charitable, medical/educational institutions whether for profit or not are allowed to form or join labor organization. Ambulant, intermittent and itinerant workers, self-employed people, rural workers and those without any definite employees may form/join labor organization.

>Those who are not allowed are employees of such cooperative who is a member and co-owner; Managerial employees.

>In public sectors, employees of Govt. Corporation established under the corporation code shall have the right to organize with their respective employers. All other employees in civil service shall have the right to form association for purpose not contrary to law.

>Exempted employees are those members of the AFP, including police officers, policemen, fireman and jai guard; High level employee.

2. What law governs labor realations in the public secto?>The law that governs in the public sector is the Civil Service Law.

3. May government employees hold protest actions? May they go on a strike – legally?

>Yes, the resolution of complaint and cases involving govt. employees is not ordinarily left to collective


bargaining/other related activities but to civil service law and labor law whenever applicable.

>Terms and condition of employment in govt. including any political subdivision or instrumentality thereof and GOCC with original charters are governed by law, the employees therein shall not strike for purpose of securing changes thereof.

4. In the private sector how does a manger differ from a supervisor?>In private sector a manager differs from a supervisor is that a manager makes policy decision or people decision/both, while supervisor recommends those decisions. One is a decision maker while the other recommends.

5. Supervisor and rank and file employees cannot join the same union. What happens if they do?>As a rule the inclusion as union members of employees outside the bargaining unit shall not be ground for the cancellation of registration of the union. Said employees are automatically deemed removed from the list of membership of said union.

6. Who are considered confidential employees? May confidential employee join unions?

>Confidential employees assist and act in a confidential capacity to, or have access to confidential matters of, persons who exercise managerial functions in the field of labor relations.

>Confidential employees cannot form, join, or assist rank-and-file unions however When the employee does not access to confidential employees, there is no legal prohibition against confidential employee from forming, assisting or joining a union.

Box 12

1. Unfair Labor practice is an act of abridgment which Article 246 prohibits. Is it ULP to stop “protest action” by ununionized employees?Ans.: Because self-organization is a prerequisite—the lifeblood—of industrial democracy, the right to self-organize has been enshrined in the Constitution, and any act intended to weaken or defeat the right is regarded by law as an offense. ULP, therefore has a limited, technical meaning because it is a labor relations concept with a statutory definition. It refers only to acts opposed to workers right to organize. Without the element, the act, no matter how unfair, is not unfair labor practice as legally defined.

2. Under article 247, ULP is both civil and criminal offense. Why?

Ans.: The victim of the offense is not just the workers as a body and the well-meaning employers who value industrial peace, but the State as well. Thus, the attack to constitutional right is considered a crime which therefore carries both civil and criminal liabilities.

3. What are the elements of ULP as an offense?

Ans.: First, there is employer-employee relationship between the offender and the offended; and Second, the act done is expressly defined in the Code as an act of unfair labor practice.

Box 13

1. What acts are considered unfair labor practice by an employer?Answer: Art. 248 of the Labor Code enumerated unfair labor practices of employers.


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

b. To require as a condition of employment that a person or an employee shall not join a labor organization or shall withdraw from one to which he belongs.

c. To contract out services or functions being performed by union members when such will interfere with, restrain or coerce employees in the exercise of their right to self-organization;

d. To initiate, dominate, assist or otherwise interfere with the formation or administration of any labor organization, including the giving of financial or other support to it or its organizers or supporters;

e. To discriminate in regard to wages, hours of work, and other terms and conditions of employment in order to encourage or discourage membership in any labor organization.

f. To dismiss, discharge or otherwise prejudice or discriminate against an employee for having given or being about to give testimony under this Code;

g. To violate the duty to bargain collectively as prescribed by this Code;

h. To pay negotiation or attorney’s fees to the union or its officers or agents as part of the settlement of any issue in collective bargaining or any other dispute;

i. To violate a collective bargaining agreement.

2. What is the discrimination that may constitute ULP?Answer: To constitute an unfair labor practice, the discrimination committed by the employer must be in regard to the ‘hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.”

3. Is it ULP for an employer to contract out jobs being done by union members?Answer: No. It is not ULP for an employer to contract out jobs being done by union members UNLESS such act will interfere with, restrain, or coerce employees in the exercise of their right to self-organization. Hence, contracting out by itself is not ULP. It is the ill-intention that makes it so.

4. Is it ULP for an employer to favour a particular union?Answer: Yes, if the act of favouring a particular union amounts to domination of a labor union such as in the following: initiation of company union idea; giving financial support to the union; employer encouragement and assistance; and supervisory assistance.

5. Is it lawful to compel an employee to join a union?Answer: No. There is a form of encouragement of union membership which is not considered ULP. This is where the management and union enters into a collective bargaining agreement containing a union security clause. A union security clause essentially requires membership in the union so that an employee may retain his job and the union’s existence is assured. It is compulsory union membership whose objective is to assure continued existence of the union. In a sense, there is discrimination when certain employees are obliged to join a particular union. But it is discrimination favouring unionism; it is a valid kind of “discrimination.”

Box 14

1. What acts are considered ULP by a Labor organization?

Art. 249. Unfair labor practices of labor organizations. It shall be unfair labor practice for a labor organization, its officers, agents or representatives:


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

2. May a union charge with ULP another union in the same enterprise?

No, Unfair Labor Practices can only be invoked by an employee against an employer and and by a union member against the labor union when such employer or labor union violates the Constitutional right of workers or Employees to self-organization.

3. May a union member charge with ULP his own union?

Yes. Labor Union can be charged with ULP by a union member where in a case such Union arbitrarily exclude qualified applicants

for membership, and a closed-shop provision would not justify the employer in discharging, or a union in insisting upon the discharge of, an employee whom the union thus refuses to admit to membership, without any reasonable ground therefor.

4. What is featherbedding? Is it featherbedding to object to the abolition of certain jobs or positions in the company?

Article 249(d) To cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other things of value, in the nature of an exaction, for services which are not performed or not to be performed, including the demand for fee for union negotiations; refers to “featherbedding”, a term given to employee practices which create or spread employment by ‘unnecessarily’ maintaining or increasing the number of employees used,or the amount of time consumed, to work on a particular job.

No. Most of these practices stem from a desire on the part of employees for job security in the face of technological improvements or in the face of employer subcontracting. However, most courts at common law found these practices to be economically wasteful and without any legitimate employee justification.

Box 15

1) How is collective bargaining done? May the

parties devise their own procedure? (See Art.250)

>>The mechanics of collective bargaining are set in

motion only when the following jurisdictional

preconditions are present, namely: (1) possession of the

status of majority representation of 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; (3) a demand to

bargain under Art 250, par.[a] of the New Labor Code. If

the three jurisdictional preconditions are present, the

collective bargaining should begin within 12 months

following the determination and certification of the

employees' exclusive bargaining representative.


>> Yes. Art 251 provides, "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."

2) The prevailing practice is single enterprise

bargaining. Is multi-employer bargaining allowed?

>> Yes. Multi-employer bargaining unit is

particularly advantageous to both sides in industries

composed of many small, financially weak employers.

3) What are the elements of the duty to bargain,

violation of which may constitute ULP?

>> There are four essential elements:

Legal. Collective bargaining is a process of

negotiating an agreement.

Economic. Its contents specify the terms and

conditions of employment (e.g., salary/wage increase,

benefits, etc.).

Political. The agreement is a product of a

negotiation between labor and management.

Moral. It involves a system of shared

responsibility and decision- making.

Forms of ULP

a) failure or refusal to meet and convene;

b) evading the mandatory subjects of

bargaining;

c) bad faith in bargaining including failure or

refusak to execute the collective agreement, if

requested;

d) gross violation of the CBA

4) What are the compulsory and optional subjects

of bargaining?

>> The mandatory subjects of collective bargaining

are wages, hours of work and all other terms and

conditions of employment. Those matters outside the

terms and conditions of employment are not within the

employer's duty to bargain, such other matters he is

free to bargain or not to bargain.

5) What are the requirements of valid ratification of

a CBA?

>> The agreement negotiated by the employees'

bargaining agent should be ratified or approved by the

majority of all the workers in the bargaining unit. The

posting of the CBA in two conspicuous places for five

days is also required.

6) When does a CBA take effect? Up to when is it

effective? May its life be extended by non-renewal

or by mutual agreement?

>> It has been held that a CBA was effective on

ratification by union members.

>> RA No. 6715 has introduced through Art. 253-A

a significant change in setting the durations or terms of

a CBA at five years for the "representation aspect" and

not more than three years for "all other provisions".

>> Art. 253 provides, 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.

Box 16

1. What are the methods of selecting the union that will bargain with the employer?a.) Voluntary recognitionb.) Certification Electionc.) Consent election

2. What is certification election (C.E.)? Who can petition for a C. E.?*Certification election is the process of determining through secret ballot the sole and exclusive representative of the employees in an appropriate bargaining unit, for purposes of collective bargaining or negotiation.*may be filed by the (1)registered union or (2) by an employer. (3) Any legitimate labor organization including a(4) national union or


federation that has issued a charter certificate to its local/chapter.

3. On what grounds may a petition for C. E. be denied?

*Med-arbiter may disapprove or deny the petition to hold a C.E. on the following ground:

a.) Non- appearance

b.) Illegitimacy-Unregistered Union

c.) Illegitimacy- no charter

d.) Absence of employment relationship

e.) election bar- the 12 month bar

f.) election bar- negotiation or deadlock

g.) election bar- existing CBA

h.) election bar-lack of support

4. Who votes in C. E.? Who wins? *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 granting the conduct off a certification election shall be eligible to vote.* results of the election and certifying the union which obtained a majority of the valid votes cast. Where majority of the valid votes cast results in “no-union” obtaining the majority, the med-arbiter shall declare such fact in the order.

5. Is the employer a party to a C. E.?

*no, employers are “mere bystanders” in the CE proceedings.

6. What is meant by “ duty of fair representation”?*this duty, enjoined explicitly in American jurisprudence and implicitly in Philippine law, obligates the majority union to serve the

interest of all members of the whole bargaining unit without hostility or discrimination.

Box 17

1. A CBA is said to be the law between the parties. What are the consequences of its violation? ANS: If the violation of the CBA is not gross, it is considered as grievance, but if the violation of the CBA is gross, it considered as unfair labor practice.

In the event of any violation in the CBA, the aggrieved party has the right to go to court for redress.

2. A CBA is in personam. What are the implications? The exceptions?

ANS: CBA is said to be in personam, thus, it implies that labor contracts is only binding between the parties and it does not create any real right which should be respected by third parties.

However, as an exception to the said rule, the parties may be held liable to the employees if the transaction between the parties is colored or clothed with bad faith.

3. What is “grievance machinery” & why is it required provision in a CBA?

ANS: Refers to a mechanism for the adjustment of controversies or disputes arising from the interpretation or implementation of the CBA & the interpretation or enforcement of the company personnel policies.

It is intended to promote friendly dialogue between labor and management as a means of maintaining industrial peace and therefore considered to be an extension of the parties to bargain as required by law.


4. In what cases is resort to the grievance machinery a prerequisite or jurisdictional, and when is it optional?

ANS: Resort first to grievance machinery is jurisdictional when it is expressly & validly entered into the CBA. Hence, all grievances arising from the implementation or interpretation of the CBA and/or interpretation & enforcement of company personnel policies are compulsory subject to the grievance machinery.

However, resort to the said grievance machinery may be optional when it is proven to be ineffective in the past, or when the parties inadvertently failed to include a grievance machinery provision in the CBA.

5. Who are voluntary arbitrators? In what sense are they “voluntary”? Are their decisions appealable?

ANS: Voluntary Arbitrators consist of persons mostly involved as employees or officials in the government or in education, civic, and religious institutions, trade union organizations & private enterprises.

They are considered to be voluntary in the sense that they are chosen by the parties themselves, thus the preferred method of selection of voluntary arbitrators is by mutual agreement of the parties.

As a general rule, decisions of Voluntary Arbitrator must be accorded with finality, however, the Supreme Court may take cognizance a petition for certiorari by the aggrieved party under Rule 65 of the Rules of Court which allege a grave abuse of discretion or an act without or excess of jurisdiction on the part of the Voluntary Arbitrator.

6. What rules govern voluntary arbitration?

ANS: The rules that governs voluntary arbitration is based on the labor code and its implementing rules & regulations, the CBA, & other agreement of the parties, the directives of the arbitrator, & the procedural guidelines in conduct of voluntary arbitration proceedings.

Box 18

1. Concerted activity– an activity undertaken by two or more employees, by one on behalf of others.

2. Factors to be examined

Factors affecting legality of strike:

1. Statutory prohibition

2. Procedural requirements of the law

3. Purpose must be ULP and economic

4. Lawful means and methods

5. Injunction

3. Government Employee may strike?

No. By reason of peculiar character of the public service, it must necessarily regard the right to strike given to unions in the private industry as not applying to public employees.

Moreover, the csc declared that the right to self organization accorded to government employees shall not carry with it the right to engage in any form of prohibited concerted activity or mass action causing or intending to cause work stoppage or service disruption, albeit of temporary nature.

4. Goodfaith strike doctrine - A strike may be considered legal when the union believed that the respondent company committed unfair labor acts and the circumstances warranted such belief in good faith although subsequently such allegation of unfair labor


practices are found out as not true. (People’s Industrial and Commercial Employees and Workers Organization (FFW) v. People’s Industrial and Commercial Corp. GR No. 37687 15 March 1982

5. Striker and employer may not do on occasion of strike.

Prohibited activities [Art.264]

(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 Ministry.

No strike or lockout shall be declared after assumption of jurisdiction by the President or the Minister 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.

(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 to selforganization or collective bargaining, or shall aid or abet such obstruction or interference.

(c) No employer shall use or employ any strike-breaker, nor shall any person be employed as a strike-breaker.

(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 person, 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:

(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.

May employer hire workers in place of strikers?

An employer is entitled to carry out his business. But in unfair labor practice strike, such replacements may not be permanently employed. In case of defiance of return to work order, or certification or assumption order, a hearing is not required for the employer to validly hire replacement for workers who committed the defiance.

6. What is National interest dispute? In what ways it is subjected to police power?

Labor dispute involving national interest. When there exist a labor dispute causing or likely to cause a strike or lock out in an industry indispensable to the national interest. The power of (a) assumption of jurisdiction and decide it or (b) certify the same to the NLRC for Compulsory arbitration by the secretary of labor is in nature a police power measure.

7.No Strike-No Lockout Clause valid?

A "no strike, no lock-out" provision in the CBA is a valid stipulation although the clause may be invoked by an employer only when the strike is economic in nature or one which is conducted to force wage or other concessions from the employer that are not mandated to be granted by the law itself. It would be inapplicable to prevent a strike which is grounded on unfair labor practice. [Panay Electric Co. v. NLRC, 1995; Malayang Samahan ng mga Manggagawa sa Greenfield v. Ramos , 2000BLR

Box 19

1. What are the legal limits to a picket? May picketing be conducted without a strike?

Picketing involves the presence of striking workers of their union brothers who pace back and forth before the place of business of an employer considered “unfair to organized labor,” in the hope of being able to persuade peacefully other workers not to work in the establishment, and customers not to do business there.

Picketing as a concerted activity is subject to the same limitations as strike, particularly as to lawful purpose and lawful means. Like the freedom of


expression in general, it has limits. Thus, to the extent that it is an instrument of coercion rather than a persuasion, it cannot rightfully be entitled to the protection associated with free speech.

Picketing almost always accompanies a strike. But there may be picketing without a strike because employees may picket without engaging in work stoppage. Although picketing is a form of concerted action, not every concerted action is a strike.

2. What is the recourse of a neutral party being affected by a picket?

In Philippine Association of Free Labor Unions (PAFLU) v. Cloribel, the Court, through JusticeJ.B.L. Reyes, stated the “innocent bystander” rule as follows:

The right to picket as a means of communicating the facts of a labor dispute isa phase of the freedom of speech guaranteed by the constitution. If peacefullycarried out, it cannot be curtailed even in the absence of employer-employeerelationship.

The right is, however, not an absolute one. While peaceful picketing is entitled to protection asan exercise of free speech, we believe the courts are not without power to confine or localize the sphere of communication or the demonstration to the parties to the labor dispute, including those with related interest, and to insulate establishments or persons with no industrial connection orhaving interest totally foreign to the context of the dispute. Thus the right may be regulated atthe instance of third parties or “innocent bystanders” if it appears that the inevitable result of its exercise is to create an impression that a labor dispute with which they have no connection or interest exists between them and the picketing union or constitute an invasion of their rights.

Thus, an “innocent bystander,” who seeks to enjoin a labor strike, must satisfy the court it isentirely different from, without any connection whatsoever to, either party to the dispute and,therefore, its interests are totally foreign to the context thereof.

A picketing labor union has no right to prevent innocent bystander from getting in and out of its premises,

otherwise it will be held liable for damages for its act against innocent bystanders.

3. What is the recourse of an employer when employees conduct a group action without work stoppage? (No answer found in the book, I just infer this based on the annotations)

The following are concerted actions without work stoppage:a) Collective letter;(Republic Savings Bank vs.

CIR)b) Publicity;c) Placards and Banners;d) Wearing of Armbands;(Bascon et al vs. CA

et al)e) Speeches, Music, and Broadcastsf) Employees’ Demonstration to Protest

Police Abuses (Phil Blooming Mills Employees vs.PBM Inc)There was no finding by the Court that the

following group action constitutes illegal act. In fact, per se, they are within the mantle of constitutional protection under freedom of speech. Being so, an employer who terminates employment constitutes illegal dismissal not being for any of the just or authorized causes.

Therefore, as long as the group action constitutes a guarantee of the freedom of speech, the employer has no recourse but to respect such exercise of right.

4. When is a group action a strike even if there is no work stoppage? Is boycott a strike?

The word “strike” in its broad significance has reference to a dispute between an employer and his workers, in the course of which there is a concerned suspension of employment. As a form of labor activity, it is rarely carried on without the concomitants of picketing or boycotting. Thus, a group action is considered a strike even if there is no work stoppage in instances of picket and boycott.

The term “boycott” as applied to labor unions, is generally understood to ba a combination to harm one person by coercing others to harm him-that is, a combination of many to cause a loss to one person by causing others, against their will, to withdraw from him their beneficial business intercourse through


threats that unless others do so, the many will cause similar loss to him or them.

Whether a boycott is a strike or not depends upon the means or methods to carry out the boycott. The striking employees not only have a right to acquaint the public with the fact of the existence of a strike and the cause thereof, but may appeal for sympathetic aid by a request to withhold patronage from the employer.

Box 20

1. Who are the strikers that may return to their jobs when the strike is over?

Those who were discriminatorily dismissed for union activities; and

Those who voluntarily went on strike even if it is in protest of an ULP.

2. Either in economic or ULP strike, the strikers are not to be paid for the period they were on strike. What are the exceptions?

Involuntary strikers illegally locked out; or

Voluntary strikers in ULP strike who offered to return to work unconditionally.

3. On what grounds may the employment of strikers be terminated? By whom? When? Through what process?

An ordinary striking worker cannot be terminated for mere participation in an illegal strike. There must be proof that he committed illegal acts during strike.

A union officer, on the other hand, may be terminated from work when he knowingly participates in an illegal strike, or when he commits an illegal act during a strike.

4. What liabilities may employees incur by holding a strike?

They may be held liable for damages where they attempt to attain their legitimate objectives by unlawful means or where they attempt to attain unlawful objectives; or

When they personally authorized or participated in the particular acts.

Box 21

1. What are the kinds of employment and which ones are entitled to the right to security of tenure?

The kinds of employment are:1. Regular employment 2. Casual employment 3. Project employment4. Seasonal employment5. Probationary employment 6. Fixed-term employment

(but marag pwd ra muingon og regular and temporary employment)


The right to security of tenure shall be enjoyed by employees in all kinds of employment. (According to Consti and court rulings. Art 279, which recognizes security of tenure only to regular employees, is defective.) (But if dli regular employee, ang security of tenure kay for a limited period lng pud. Hehe!)

2. What is project employment? When does a project employee becomes regular?

A project employment is one whereby 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.

A project employee becomes a regular employee when he is repeatedly rehired and his services continually needed for a long span of time.

3. What are the kinds of fixed-period employment and under what circumstances are they considered valid?

The following are the kinds of fixed-period employment: (sorry, wla koy naread nga kinds )

The fixed-period employment shall be considered valid when:

(1.) it is entered into by the parties without force, duress or improper pressure being brought to bear upon the employee and absent any other circumstance vitiating consent; or

(2.) it satisfactorily appears that the employer and the employee dealt with each other on more or less equal terms with no moral dominance exercised but he former or the latter. (Brent Doctrine)

4. Who is considered “regular seasonal” and “regular casual” employee?

A regular seasonal employee is one who is called to work from time to time. During a season they are employed; temporarily laid off during off-season. They are not, strictly speaking, separated from the service but are merely considered on leave of absence without pay until they are reemployed.

A regular casual employee is one who has rendered at least one year of service, whether continuous or broken with respect to the activity in which he is employed. He is regular only for that work activity for which he was hired. His employment may be on-and-off, but every time the particular work activity occurs, he is the one to be rehired. (He is originally a casual employee. After 1yr he becomes a regular casual ee)

5. What are the rights of a probationary employee?

The following are the rights of a probationary employee:

1. Security of tenure;2. To be considered a regular

employee if he is allowed to work after the probationary period.

6. May the employer contract out a regular job?

Yes, an employer may contract out a regular job, provided that it is done in good faith and justified by exigencies of the business.

Box 22

1. Serious misconduct as a valid reason of dismissal require a certain elements. What are those?


>The misconduct to be serious must be of such a grave aggravated character and not merely trivial or unimportant.

2. If an employee, on ground of inconvenience, disobeys and order transferring him to another location or job, may such employee be dismissed?

>In order to constitute a valid reason to dismiss an employee for disobeying an order the two requisite must concur (1) employee’s attitude wrongful and perverse and (2) qualities of the order – lawful, reasonable, made known to the employee and pertain to the duties of the employee when it shown that it is unnecessary, convenient, and prejudicial to the displaced employee such dismissal is valid.

3. Is ignorance an excuse for having violated a company policy or regulation?>Yes, ignorance of company policy or regulation may be an excuse when the act or omission is not grave or where the act does not constitute gross negligence.

4. Under what conditions or circumstances may an employee be dismissed on ground of loss of confidence?

A. Loss of confidence should not be simulatedB. It should not be used as a subterfuge for causes which are improper illegal/unjustified;

C. It may not be arbitrarily asserted in the face of overwhelming evidence to the contrary.D. it must be genuine, not mere afterthought to justify earlier action taken in bad faith.E. Employee involved holds a position of trust and confidence.

Box 23

1. In what respects are the “authorized causes” and the “just causes” the same and different?

Ans. They are the same in the sense that they are the causes and modes of termination of employment and differs in the sense that dismissal for just cause is where an employee is dismissed for causes which are attributable to his fault or culpability while termination for authorized cause is where an employee is dismissed for causes independent of his fault.

In just cause a dismissed employee is not entitled to separation pay while in authorize cause is entitled to separation pay.

2. What are the authorized causes and the corresponding rates of separation pay? What authorized cause does not entail payment of separation pay?

Ans. The following are the authorized causes and corresponding rates of separation pay:a. Automation/Robotics and Redundancy

– equivalent to at least one month pay or at least one month pay for every year of service, whichever is higher, a fraction of six(6) months is considered as one (1) year.


b. Retrenchment – equivalent to one month pay or at least one-half month pay for every year of service, whichever is higher, a fraction of six (6) months is considered as one (1) whole year.

c. Closures or cessation of operations not due to serious business losses or financial reverses – equivalent to one month pay or at least one-half month pay for every year of service, whichever is higher, a fraction of six (6) months is considered as one (1) whole year.

d. Disease- equivalent to at least one-month salary or to ½ month salary for every year of service, whichever is greater, a fraction of at least 6 months shall be considered one (1) whole year.

The following are the authorized cause that does not entail payment of separation pay:

a. If due to severe business losses or financial reverses there is no separation pay due;;

b. Closure due to an act of government.

3. How does preventive retrenchment differ from redundancy?

There is retrenchment where employer reduces the number of its personnel in order to prevent further losses in his business operations.

There will be redundancy when for purposes of economy a company decides to reorganize its departments by imposing on employees of one department the duties performed by the employees of the other department, thus rendering unnecessary the job of the latter, the services of the employees whose functions are now being performed by the former, may be validly terminated on the ground of redundancy.

4. Explain the four standards of a valid retrenchment (SINS)

a. The losses expected are substantial and not merely de minimis in extent;

b. The apprehended substantial loss are reasonably imminent, can be perceived objectively and in good faith by the employer;

c. Retrenchment must be reasonably necessary to prevent the expected losses; and

d. Expected or actual losses must be proved by sufficient and convincing evidence.

Box 24

1. In employment termination what does procedural due process consists of- for the just causes? For the authorized?

Ans. As a general rule the law requires that the employer must furnish the worker sought to be dismissed with two written notices before termination of employment can be legally effected.

For termination based on just causes:

a) a written notice served on the employee specifying the ground or grounds for termination, and giving to said employee reasonable opportunity within which to explain his side;

b) a hearing or conference during which the employee concerned, with the assistance of counsel if the employee so desires, is given opportunity to respond to the charge, present his evidence or rebut the evidence presented against him; and

c) a written notice of termination served on the employee indicating that upon due consideration of all the


circumstances, grounds have been established to justify his termination

For termination of employment based on authorized causes;

a) upon service of a written notice to the employee and the appropriate Regional Office of the Department at least thirty days before the effectivity of the termination, specifying the ground or grounds for termination.

2. If the termination is justified by a valid cause but done without observance of due process, is the termination legal?

Generally, no because the law is very clear as to the due process requirements that an employer who seeks to terminate the employment of its employee must notify him in writing at least 30 days before the intended dismissed.

However, if an employee consented to his retrenchment or voluntarily applied for retrenchment with the employer the required previous notice to the DOLE is not necessary as the employee thereby acknowledged the existence of a valid cause for termination of his employment.

3. What is constructive dismissal? Is preventive suspension exceeding thirty days considered constructive dismissal?

Constructive dismissal is defined as quitting because continued employment is rendered impossible, unreasonable or unlikely, as an offer involving demotion in rank and a diminution in pay.

Yes, preventive suspension exceeding 30 days is constructive dismissal because constructive dismissal does not always involve forthright dismissal or diminution in rank, compensation, benefit and privileges.

There may be constructive dismissal if an act of clear discrimination, insensibility, or disdain by an employer becomes so unbearable on the part of the employee that it could foreclose any choice by him except to forego his continued employment.

4. Who has the burden of proof in criminal cases?

The burden of proof rests upon the employer to show that the dismissal is for just and valid cause. Failure to do so would necessarily mean that the dismissed was not justified and therefore, was illegal.

Box 25

1. If the termination is based on any authorized cause, the employee is entitled to separation pay, and nothing if it is due to a just cause. What are the exceptions?

As a general rule, employee is not entitled to separation pay if cause of dismissal is due to an act imputable to him. Exceptions to these are as follows, to wit;

a) When the court finds justification in applying the principle of social justice well entrenched in 1987 Constitution.

If the act committed by the employee does not amount to serious misconduct or does not reflect on the employee’s moral character, the court may require the employer to pay as a measure of social justice, separation pay to the employee.

b) On the ground of compassionate justice.

c) It is stipulated in the employment contract or collective bargaining agreement (CBA), or it is in by established employer practice or policy.

2. What are the kinds of separation pay?


Under the present law and jurisprudence separation pay may be viewed in four ways or contexts:

a) Separation pay as employer’s statutory obligation in cases of legal termination due to authorized causes under Article 283 or 284;

b) Separation pay as financial assistance, as an act of social justice, even in cases where the employee is ordered reinstated but reinstatement is not feasible;

c) Separation pay in lieu reinstatement in illegal dismissal cases where the employee is ordered reinstated but reinstatement is not feasible;

d) Separation pay as an employment benefit granted in CBA or company policy.

3. May backwages be awarded on appeal if the employee did not appeal its denial?

Earlier court decisions gave different answers: one ignored technicality adisnd granted the backwages, the other denied backwages because of technicality. By 2001 the more liberal decision has prevailed. In St. Michael’s Institute, the court state that, “ The NLRC did not award backwages to the respondents or that the respondents themselves did not appeal the NLRC decision does not bar the Court of Appeal from awarding backwages. While as a general rule, a party who has not appealed is not entitled to affirmative relief other than the ones granted in the decision of the court below, the Court of Appeals is imbued with sufficient authority and disretion to review matters, not otherwise assigned as or rrors on appeal, if it finds that their consideration is necessary in arriving at a complete and just resolution of the case or to serve the interests of justice or to avoid dispensing piecemeal

justice. Substantive rights like the award of backwages resulting from illegal dismissal must not by a rigid and technical application of the rules.

4. In what situations may reinstatement be denied even if the termination is invalid?

a) I f between the time the wrongful discharged occurred and reinstatement order was issued, the employer’s commercial or financial circumstances have changed, the court cannot compel the employer, despite the unfair labor practice , to reinstate such number of employees as may exceed his needs under the altered conditions.

b) Illegally dismissed employee who is approaching or has reached the retirement age shall not be ordered reinstated.

c) Reinstatement not feasible due to strained relations.

5. In termination disputes, what is indemnity? May it be imposed in addition to backwages ?

Indemnity is meant to vindicate or recognize the right of an employee to due process which have been violated by the employer.

The Wenphil doctrine says essentially that a dismissal for a valid reason is legal and valid, but the employer who does not observe procedural due process must pay some indemnity. As a general rule, indemnity is imposed for the failure of the employer to observe due process requirement as enunciated in the Constitution. The Serrano ruling which grants full backwages is not meant to do away with indemnity to the employee whose right to due process was violated; that is, the indemnity is aside from the full wages.


Backwages-is based on equity to workers for earnings lost due to their illegal dismissal from work.

6. Is a manager personally liable for the illegal dismissal of an employee?

As a general rule the manager is not personally liable for the illegal dismissal of an employee as enunciated in Sunio Doctrine.

Generally, officers of a corporation are not personally liable for their official acts unless it is shown that they have exceeded their authority. However, the legal fiction that a corporation has a personality separate and distinct from stockholders and meto evadembers may be disregarded. Where the incorporators and directors belong to a single family, the corporation and its members can be considered as one in order to avoid its being used as an instrument to commit injustice, or to further an end subversive of justice. The shield of corporate fiction should be pierced when it is deliberately and maliciously designed to evade financial obligations to employees. Directors are guilty of gross negligence or bad faith in directing the affairs of the corporation shall be liable jointly and severally for all damages resulting therefrom suffered by the corporation, its stockholders or members or other persons.


labor relations box questions - azucena- final

Documents

department of labor

labor relationsanswers

secretary of labor

labor arbiter

labor disputesa

labor relations law

united labor movementd

voluntary arbitration