Labor Relations Reviewer

LABOR LAW REVIEWER

Labor Relations S A I N T L O U I S U N I V E R S I T Y

Co l l e g e o f Law

March 2009 EDITION

SAINT LOUIS UNIVERSITY College of Law

BAR OPERATIONS COMMITTEE (Team 2009)

KRIS DYAN CAYABYAB

Overall Chair

ARIZ CAWILAN Vice Chair

Section Chiefs

RYAN SOLANO Civil Law Section

MYKEEDOX Criminal Law Section

MAAN BAGUIOEN

Commercial Law Section

LOUIE SAJONIA Ethics Section

BRENSON SIADTO

Labor Law Section

JED ALLAN BEJAR Political Law Section

NORWAYNE SALMAN

Taxation Law Section

BRENNER BENGWAYAN Remedial Law Section

Adviser

ATTY. HILARIO JUSTINO F. MORALES

Head, Political Law Department College of Law, Saint Louis University

LABOR LAW SECTION

Team 2009

Team 2008

BRENSON SIADTO Section Chief RACHELLE ANN LAZAGA

ANNA MARI ABARCAR Vice Chief ORLANDO TENORIO

Members

LORNA FERNANDEZ

JOVILYN HIMOLDANG

SENCIA PANTALEON

CYNTHIA PUNGAYAN

AMBROSIO GANDEZA

ORLANDO TENORIO

G ANNA MARI ABARCAR

JOAN ACHAZO

HAZEL BUNESS CANALE

FLORIMAE DANGLI

YAMINE LEE TADEO

CLIMARK DASAYON

AMBROSIO GANDEZA

Editorial Consultant & Adviser

ATTY. LEILANEE Q. DASIG – QUANGUEY Professor

College of Law, Saint Louis University Public Attorney

Public Attorneys’ Office, City of Baguio

W LABOR LAW REVIEWER

Labor Relations

Copyright © 2009 Bar Operations Committee College of Law

Saint Louis University 2600 Baguio City

ALL RIGHTS RESERVED

No part of this work may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or by any information storage or retrieval system, except as may be expressly permitted by the Intellectual Property Code or in writing by the publisher. Requests for permission should be addressed in writing to: Bar Operations Committee, College of Law, Saint Louis University, Upper Gen. Luna Rd., 2600 Baguio City.

_________________________________ __________________________________

SAINT LOUIS U NIVERSITY | College of Law | BAR O PERATIONS C OMMITTEE (2009)

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Labor Relations 1

L a b o r R e l a t i o n s

ARTICLE 211 DECLARATION OF POLICY

1. 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;

2. to promote free trade unionism as and instrument of for the enhancement of democracy and the promotion of social justice and development;

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

4. to promote the enlightenment of workers concerning their rights and obligations as union members and employees;

5. to provide an adequate administrative machinery for the expeditious settlement of labor and industrial dispute;

6. to ensure a stable but dynamic and just industrial peace;

7. to ensure the participation of workers in decision and policy-making process affecting their rights, duties and welfare;

DEFINITIONS

WHO ARE EMPLOYEES?

The term EMPLOYEES shall include:

1. Any employee and shall not be limited to the employee of any particular employer;

2. Any individual: Ø whose work had ceased as a consequence of or in connection with any

current labor dispute; and Ø who had not obtained any substantially equivalent and regular

employment.

WHO ARE EMPLOYERS?

EMPLOYERS are defined as, any person who employs the services of another, and one for whom the employees work and who pays their wages and salaries. They may also be any person directly or indirectly acting in the interest of an employer (SEE D. O. No. 40-03).

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Labor Relations 2

I

JURISDICTION AND PROCEDURE IN LABOR DISPUTES

LABOR DISPUTE

• Any matter or controversy concerning the terms and conditions of employment or the association or representation of person in negotiating, fixing, maintaining, changing and arranging the terms and conditions of employment, regardless or whether the disputants stand in proximate relation of employer and employee.

Nature: Dispute arises from employer-employee relationship, although disputants need not be proximately “employee” or “employer” of the other.

Subject Matter (Dispute Concerns)

• Terms or conditions of employment; or • Association or representation of persons in negotiating, fixing, maintaining, or

changing terms or conditions of employment.

KINDS OF LABOR DISPUTES

Labor Standards Disputes

• Compensation • Benefits • Working conditions

Labor Relations Disputes

• Organizational Right Dispute/ULP • Representation Disputes • Bargaining Disputes • Contract Administration or Personnel Policy Disputes • Employment Tenure Disputes • Inter-Union or Intra-Union Disputes

REMEDIES IN LABOR DISPUTES

• Grievance Procedure • Conciliation • Mediation • Enforcement or Compliance

Order • Certification of Bargaining

Representatives • Arbitration

(Voluntary/Compulsory) • Assumption of Jurisdiction

• Certification to NLRC • Injunction • Judicial Action • Appeal • Judicial Review • Compromise Agreement • Collective Bargaining • Strike or Lockout

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Labor Relations 3

II

NATIONAL LABOR RELATIONS COMMISSION CREATION AND COMPOSITION

COMPOSITION

THE COMMISSION is composed of a Chairman and twenty-three (23) members.

§ EIGHT members shall be chosen only from among the nominees of the workers and employers organization respectively.

§ The CHAIRMAN and SEVEN REMAINING MEMBERS shall come from the public sector with the latter to be chosen preferably among the incumbent labor arbiters.

(SEE R.A. 9347; June 24, 2006)

QUALIFICATIONS

• Chairman and other Commissioners

1. shall be members of the Philippine Bar; 2. must have been engaged in the practice of law in the Philippines for at

least 15 years; 3. with at least 5 years experience or exposure in the field of labor

management relations; 4. shall be preferably residents of the region where they shall hold office;

• Labor Arbiters

1. must be members of the Philippine Bar; 2. must have been engaged in the practice of law in the Philippines for at

least ten (10) years; 3. with at least five (5) years of experience or exposure in the field of labor

management relations;

APPOINTMENT

The CHAIRMAN, DIVISION PRESIDING COMMISSIONERS, and other COMMISSIONERS are appointed by the President.

LABOR ARBITERS are appointed by the President upon recommendation of the Commission en banc.

TERM OF OFFICE

The MEMBERS OF THE COMMISSION and the LABOR ARBITERS shall hold office during good behavior until they reach the age of sixty-five (65) years unless sooner removed for cause provided by law or become incapacitated to discharge the duties of their functions.

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Labor Relations 4

JURISDICTION OF LABOR ARBITERS

• Unfair labor practices cases / gross violation of CBA. • Termination disputes. • Money claims (arising from ER-EE relationship) regardless of amount, when

accompanied with a claim for reinstatement exceeds P5, 000.00, whether or not accompanied with a claim for reinstatement. Exception: SSS / ECC / Medicare claims.

• Claims for damages arising from employer-employee relations. • Strikes and lockouts. • Any or all of the above cases can, by agreement of the parties, be presented to and

decided with finality by voluntary arbitration of a panel of voluntary arbitrators.

Additional Cases:

• Money claims (arising from ER-EE relationship) or by virtue of any law or contract, involving Filipino workers for overseas deployment, including claims for actual, moral, exemplary and other forms of damages.

• Wage distortion disputes in unorganized establishments. • Enforcement of compromise agreements when there is non-compliance by any of

the parties. • Other cases as may be provided by law.

The original and exclusive jurisdiction of labor arbiters under ARTICLE 217 (c) for money claims is limited only to those arising from statutes or contracts other than a CBA. The labor arbiter has no jurisdiction over intra-corporate disputes.

ARTICLE 263 (g) empowers DOLE Secretary or the President of the Republic to assume jurisdiction or refer the case to the NLRC if the labor dispute or impending strike or lockout involves an industry indispensable to national interest.

III

JURISDICTION OF THE NATIONAL LABOR RELATIONS COMMISSION

ORIGINAL JURISDICTION

• Cases certified to it for COMPULSORY ARBITRATION by the President or Sec. of Labor and Employment pursuant to Arts. 263 and 264 of the LC;

• Cases on INJUNCTION pursuant to Arts. 218 and 264 of the LC; and • CONTEMPT cases pursuant to Art.218 of the LC.

APPELLATE JURISDICTION

• Cases decided by the regional offices of the DOLE in the exercise of its adjudicatory function pursuant to Art. 129 of the LC; and

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Labor Relations 5

• Cases decided by the LAs pursuant to Art. 217(b) of the LC and see 10 of RA 8042 (overseas contract workers).

POWERS OF THE NLRC

• Rule-making Power

It has the power to promulgate rules and regulations governing:

F The hearing and disposition of cases before it and its regional branches;

F The hearing and disposition of cases pertaining to its internal functions;

F Those as may be necessary to carry out the purposes of the Code.

• Power to Issue Compulsory Processes

F Administer oaths;

F Summon parties; and

F Issue subpoenas ad testificadum and duces tecum.

• Power to Investigate and Hear Disputes within its Jurisdiction

F Conduct investigation for the determination of a question, matter or controversy within its jurisdiction; and

F Proceed to hear and determine the disputes in the manner laid down under paragraph (c) of Article 218.

F Conduct ocular inspection (Article 219).

• Contempt Power

F Hold any person in contempt directly or indirectly; and

ISSUANCE OF INJUNCTION OR TEMPORARY RESTRAINING ORDER (TRO)

This power is reserved specifically to the NLRC however, the [1990] Rules of Procedure of the NLRC, provides that ancillary power of issuing preliminary injunction or TRO may be exercised by the Labor Arbiters only as an incident to the cases pending before them in order to protect the rights of the parties during the pendency of the cases by excluding labor disputes involving strikes or lockout.

Section 5 Rule XVI, Book V of the Implementing Rules of the Code, also allows Med-Arbiters to do the same.

The power of the NLRC to enjoin or restrain the commission of any or all prohibited or unlawful acts as provided in Article 218 of the Labor Code, can only be exercised in a labor dispute.

REQUISITES:

1. The complainant must allege that a substantial and irreparable injury to his or her property is inevitable, unless a TRO is issued without notice;

2. An Affidavit of Merit or a testimony under oath is filed; and 3. An Undertaking with Adequate Security or Bond is first filed, the amount of

which to be fixed by the Commission sufficient to recompense those enjoined for any loss, expense, or damage, and to include all other reasonable costs, caused by the improvident or erroneous issuance of such order or injunction.

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Labor Relations 6

IV

JURISDICTION OF THE BUREAU OF LABOR RELATIONS

The BUREAU OF LABOR RELATIONS (BLR) and the LABOR RELATIONS DIVISION in the regional offices of the DOLE shall have original and exclusive authority to act, at their own initiative or upon request of either or both parties, on the following:

• All inter-union conflicts; • All intra-union conflicts; and • All other related labor relations disputes

NOTE: The Bureau of Labor Relations no longer handles all labor management disputes.

Inter-union dispute: any conflict between and among legitimate labor unions involving representation questions for purposes of collective bargaining or to any other conflict or dispute between legitimate labor unions.

Intra-union dispute: any conflict between and among union members, including grievances arising from any violation of the rights and condition of membership, violation or disagreement over any provision of the union ’s constitution and by-laws, or dispute arising from chartering or affiliation of union.

ADMINISTRATIVE FUNCTIONS OF BLR / LR DIVISION

• Regulation of registration of Labor Unions; • Keeping of registry of labor unions; and • Maintenance of a file of CBAs.

Notes:

• Concurrent jurisdiction of BLR and Labor Relations Division in each Regional office of DOLE.

• Denial of application for registration in the regional office is appealable within 10 days to the BLR.

• Execution of the order of the Regional director shall be stayed pending appeal (IR: Book 5, Rule XIV; Sec 8), in the exercise of its appellate jurisdiction.

• The decision of the Bureau shall be final and no longer subject of appeal (Sec. 7, Ibid).

• The decision of the Bureau in its exercise of its original jurisdiction is appealable to the Secretary of Labor and Employment (SOLE).

DEPARTMENT ORDER NO. 9 (Decisions on Intra Union Disputes), provides that the appeal from the regional level must be made to the BLR Bureau Director, which shall have the power to require the appearance of any person or the production of any paper, document or matter relevant to a labor dispute under its jurisdiction (SEE ALSO

Art. 229).

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Labor Relations 7

V

JURISDICTION OF VOLUNTARY ARBITRATORS

ORIGINAL AND EXCLUSIVE JURISDICTION

To hear and decide the following:

• Disputes arising from interpretation or enforcement of company personnel policies;

• Unresolved grievance arising from interpretation or implementation of a collective bargaining agreement and those arising from the interpretation or enforcement of company or personnel policies.

• Upon agreement of the parties, shall also hear and decide all other labor disputes including unfair labor practices and bargaining deadlocks.

VI

JURISDICTION OF VOLUNTARY ARBITRATORS

APPEAL

Period to File an Appeal

Decision or orders of the LABOR ARBITER may be appealed to the NLRC by any or both parties within 10 calendar days from receipt of such decisions or orders.

If the decision, resolution, or orders are made by the REGIONAL DIRECTOR of the Department of Labor, appeal may be filed within five (5) calendar days from receipt thereof.

The 10 or the five (5) day period should be counted not from the date of receipt of the decision/order by a party but from the date of receipt by his lawyer. This is mandatory but allows some exceptions.

Grounds for Appeal

• Prima facie evidence of abuse of discretion;

• Fraud or coercion including graft and corruption in securing the decision;

• Pure questions of law; and

• Serious errors in findings of facts causing grave or irreparable damage or injury.

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Labor Relations 8

Requirements for Appeal to the NLRC

• Appeal shall be filed within the reglementary period; • It must be in the form of memorandum of appeal which shall state the

following: § Grounds relied upon and arguments in support thereof; § Relief prayed for; and § Statement of the receipt of the appealed decision, resolution or

order. • It must be verified by the appellant himself; • It must be in three (3) legibly typewritten or printed copies; • It must be accompanied by the following:

§ Proof of payment of the required appeal fee; § Posting of cash or surety bond; § Certificate of non-forum shopping; § Proof of service to the adverse party.

The requirement of posting of bond, although jurisdictional, was given liberal interpretation. The posting of real property bond was allowed as it sufficiently protects the interests of the other party should the latter prevail. Its RATIONALE is that the importance of deciding cases is based on substantive merit and not on strict compliance of technical rules.

In cases of perfected appeals, the NLRC limits itself to reviewing issues which were raised on appeal; the rest shall be final and executory.

VII

MOTION FOR RECONSIDERATION

A party is allowed to file a MOTION FOR RECONSIDERATION of any order, resolution or decision of the NLRC based on palpable or patent errors, provided that the motion is under oath and filed within 10 calendar days from receipt of the order, resolution or decision.

It is a pre-condition for pursuing any further or subsequent remedy; otherwise, the said order, resolution or decision shall become final and executory after 10 calendar days from receipt thereof.

The Requirement of a Motion for Reconsideration may be dispensed with, in the following instances:

• When the issue raised is one or purely of law; • Where public interest is involved; • In cases of urgency; and • Where special circumstances warrant immediate or more direct action. • Where the assailed decision was rendered without jurisdiction or in excess of

jurisdiction; • Where, under the circumstances, filing a Motion for Reconsideration would be

useless.

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Labor Relations 9

VIII

PETITION FOR CERTIORARI (Under Rule 65, Rules of Court)

A party may avail of the CIVIL ACTION FOR CERTIORARI, where the tribunal, board, or office exercising juridical functions:

• Has acted without or in excess of jurisdiction; and, or • With grave abuse of discretion and praying that judgments be rendered annulling

or modifying the proceedings, as the law requires, of such tribunal, board or officer.

It may be filed not later than 60 days from notice of the judgment, order, or resolution. Both SC and CA have jurisdiction over the action; however, in line with the doctrine of minatory of warts, the petition should initially be presented to the lower of the two courts, that is, the CA.

IX

EXECUTION OF JUDGMENTS

A WRIT OF EXECUTION may be issued by the following officials for the final decisions, orders or awards promulgated by them:

• Secretary of DOLE; • NLRC; • Any regional director; • Any labor arbiter; • Any med-arbiter; • The voluntary arbitrator; or • The panel of arbitrators.

It may be issued motu proprio or on motion of any interested party within five (5) years

from the date, it becomes final and executory.

REINSTATEMENT

• The decision of the LA reinstating a dismissed OR separated employee shall be executory, even pending appeal.

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Labor Relations 10

The employee shall either be:

§ Admitted back to work under the same terms and conditions prevailing prior to the dismissal or separation; or

§ At the option of the employer, to be merely reinstated into payroll.

The posting of a bond by the employer shall not stay the execution of reinstatement.

• The decision of the NLRC reinstating a dismissed employee is not self-executory.

Where no writ of execution was issued, the employee would not be entitled to wages during the pendency of the case for review before the appellate courts.

VENUE

For purpose of venue, workplace shall be understood as the place or locality where the employee is regularly assigned when the cause of action arose.

Work place shall include the place where the employee is supposed to report back after a temporary detail, assignment or travel.

In the case of field employees, as well as ambulant or itinerant workers, their workplace is where they are regularly assigned or where they are supposed to regularly receive their salaries/wages or work instructions from and report the results of their assignment to their employers.

Where two (2) or more regional arbitration branches have jurisdiction over the workplace, the branch that shall first acquire jurisdiction over the case shall exclude the others.

When improper venue is not objected before or at the time of filing of position papers, such question shall be deemed waived.

The venue of an action may be changed or transferred by written agreement of the parties, or when the NLRC or LA before whom the case is pending so orders upon motion by the proper party in meritorious cases.

X

COMPROMISE AGREEMENTS (Article 227, Labor Code)

FUNDAMENTAL POLICY OF PHILIPPINE LABOR LAWS: preferential use of voluntary modes of settling disputes since the maintenance of industrial peace is a joint responsibility of the worker and the employer.

• Under Art. 227, any compromise settlement voluntarily entered into by the parties with the assistance of the Bureau or the Regional Office of the DOLE shall be FINAL and BINDING upon the parties.

• The NLRC or any courts shall not assume jurisdiction over issues involved in the compromise agreements EXCEPT:

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Labor Relations 11

§ In non-compliance; or

§ If there is prima facie evidence that the settlement was obtained through fraud, misrepresentation or coercion.

FORMAL REQUIREMENTS

1. The compromise agreement must be reduced to writing; and

2. Signed in the presence of the Regional Director or his duly authorized representative.

VALIDITY OF COMPROMISE AGREEMENTS AND QUITCLAIMS

GENERAL RULE: The law looks with disfavor upon quitclaims end releases by EE’s who are pressured into signing them by unscrupulous employers.

EXTENSION: Not all waivers and quitclaims are invalid as against public policy. If the agreement was:

(1) Voluntarily entered into, and

(2) Represents a reasonable settlement, it is binding on the parties.

• It must be duly authorized, as required by law. Attorneys and other representatives of the parties shall have authority to bind their clients in all matters of procedure but they cannot without SPA express consent or enter into a compromise agreement with the opposing party.

WHEN TO EFFECT COMPROMISE: it may be effected at any stage of the proceedings and even when there is already a final executory judgment.

REMEDIES FOR NON-COMPLIANCE:

1. Conference the compromise by a writ of execution; and

2. Regard it as rescinded and so insist upon the original demand.

XI

TERMINATION DISPUTES

ART. 279: SECURITY OF TENURE

§ It is the Constitutional right granted to the employee to be secured, or to continue in employment until the same is terminated by virtue of a just cause or on grounds authorized by law.

§ Security of tenure applies not only to actual dismissals but also applies if there is constructive dismissal.

Coverage: extends to all types of employees

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Labor Relations 12

CLASSIFICATION OF EMPLOYEES

• Regular • Project • Seasonal • Casual • Fixed-period or Contractual • Probationary

Regular Employees

• An employee is deemed REGULAR where the employee:

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

§ Has rendered at least one year of service, whether continuous or broken, with respect to the activity in which he is employed.

§ Even handicapped persons, employed for humanitarian reasons, may become regular employees if they are doing necessary or desirable jobs and their employment has exceeded six months through renewal of their initial appointments (Bernardo Ruling).

§ Has been continuously employed beyond the period of probationary, contractual, or project employment.

Project Employees

• A PROJECT EMPLOYEE is one whose employment has been fixed for a specific project or undertaking, the completion or termination of which has been determined at the time of the engagement of the employee.

§ Must be in good faith.

§ Service is coterminous with the project or phase of the project; and

§ Employer has no obligation to give him separation pay.

§ Termination of the project employment must be duly reported to the nearest DOLE office.

• A PROJECT EMPLOYEE may acquire the status of a regular employee when the following concur:

§ There is a continuous rehiring of project employees even after cessation of a project; and

§ The task performed by the alleged project employee is vital, necessary, and indispensable to the usual business or trade of the employer.

Seasonal Employees

• A SEASONAL EMPLOYEE is one who is engaged to work during a particular season in an activity that is usually necessary or desirable in the usual business or trade of the employer.

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Labor Relations 13

• But, during off-season, the employer-employee relationship is not severed. The seasonal employee is merely considered on a leave of absence without pay.

Casual Employees

• CASUAL EMPLOYEES are those employees engaged to work on an activity that is not usually necessary or desirable in the usual business or trade of the employer.

• If the casual employee has worked for at least one year – whether continuously or broken – he becomes a regular employee.

Fixed-Period Employees

• Employee whose employment will last only for a definite period as agreed by the parties.

• REQUISITES:

• The fixed period was knowingly and voluntarily agreed upon by the parties.

• The employer and the employee dealt with each other on more or less equal terms with no moral dominance being exercised by the employee (Brent School Ruling).

• It is not valid if it is apparent that periods have been imposed to preclude acquisition of tenurial security by the employee.

Probationary Employees

• One who is on trial by an employer during which the employer determines whether or not he is qualified for permanent employment.

Period: limited to six (6) months

Exceptions:

§ When the parties to an employment contract agree otherwise.

§ When the same is established by company policy. § When the same is required by the nature of work performed

by the employee. Extensions

Extension should be done before the lapse of the six (6)-month period.

It may be terminated:

§ For a just and authorized cause; § When he fails to qualify as regular employee.

• Standards of employer should be made known to the person on trial at the

time of his engagement. Otherwise, he is deemed regular.

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Labor Relations 14

• The employee who is allowed to work after a probationary period shall be considered a regular employee by operation of law.

PRIVATE SCHOOL TEACHERS

REQUISITES for acquisition of permanent employment:

• Teacher is a full – time teacher; • Must have rendered three consecutive years of service; • Service must have been satisfactory.

DUE PROCESS

REQUISITES for due process under Article 277:

• Written notice together with grounds or offenses charged. • Opportunity to be heard by means of a formal investigation. • Subsequent formal and written notice of termination. • Plus other requisites as may be provided by company handbooks in

addition to the first three.

Article 277 applies only to termination and not to disciplinary actions unless provided by the company.

VALIDITY OF DISMISSAL

General Postulates of Validity

TERMINATION =

Substantial +

Procedural VALIDITY Validity Validity

SUBSTANTIAL =

Just or VALIDITY Authorized

Cause

PROCEDURAL =

Notice and VALIDITY Hearing

PROCEDURAL VALIDITY

• NOTICE REQUIREMENT

The mere posting of notice on employee’s bulletin board is not sufficient. Payment of one (1) month salary in lieu of notice is not valid.

If based on JUST CAUSES:

F The first notice must apprise the employee of the particular acts or omissions for which his dismissal is sought; and

F The second notice, which informs the employee of the employer ’s decision to dismiss him, is served to the employee.

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If based on AUTHORIZED CAUSE:

F The employer should give both the worker and the DOLE written notices 30 days prior to termination.

• HEARING

F A worker may answer allegations within a reasonable period from receipt of the notice of dismissal.

F The employer shall afford the worker ample opportunity to be heard and to defend himself with his representatives.

F Second notice informing the employee of his dismissal must be given after

due hearing.

PREVENTIVE SUSPENSION

It is imposed during the pendency of the investigation, if the worker ’s continued employment poses a serious and imminent threat to life and property of employer, or of his co-employees.

Maximum Period: 30 Days

NOTE: After the 30-day period, the employer may extend preventive suspension if he pays the wages and other benefits due to the suspended worker.

Rule Pending Investigation:

PREVENTIVE SUSPENSION is not punitive for the first 30 days, because it is

intended only for affording the management’s unhampered opportunity to investigate; hence, the period of suspension is NOT COMPENSABLE.

Rule Pending Appeal:

PREVENTIVE SUSPENSION is punitive already; hence, if exonerated, the employee must be reinstated and COMPENSATED for the period of his suspension.

Suspension beyond 30 days DOES NOT necessarily ripen to dismissal.

DOCTRINES ON DISMISSAL FOR CAUSE WITHOUT PROCEDURAL DUE PROCESS (PDP)

1. PRE-WENPHIL DOCTRINE

J/A CAUSE

+ (-PDP) =

ILLEGAL DISMISSAL

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2. WENPHIL DOCTRINE (FEB 8, 1989)

J/A CAUSE + (-PDP)

=

VALID DISMISSAL + INDEMNITY

3. SERRANO DOCTRINE (JAN 27, 2000)

J/A CAUSE

+ (-PDP) =

DISMISSAL, i. e., INEFFECTUAL + FULL BACK WAGES FROM THE TIME OF DISMISSAL TO FINALITY OF COURT’S DECISION

4. AGABON DOCTRINE ( NOV 17, 2004)

J/A CAUSE

+ (-PDP) =

VALID DISMISSAL + PAYMENT OF INDEMNITY (dependent upon the gravity of the disregard to due process)

In the case of Serrano, the SC held that violation of the notice requirement cannot be considered as denial of due process resulting in the nullity of the employee’s dismissal for the following reasons:

(1) The due process clause of the Constitution is a limitation on governmental powers and does not apply to the exercise of private power.

(2) Notice and hearing are required under the Due Process Clause before the power of organized society is brought to bear upon the individual.

(3) The employer cannot really be expected to be entirely an impartial

judge of his own case.

• BURDEN OF PROOF

EMPLOYER has the burden of proving the lawful cause.

• DEGREE OF PROOF

SUBSTANTIAL EVIDENCE is considered sufficient. This means more than a scintilla of relevant evidence; evidence which a reasonable mind might accept as adequate to support a conclusion.

CONSTRUCTIVE DISMISSAL

INVOLUNTARY RESIGNATION resorted to when continued employment becomes impossible, unreasonable, or unlikely; when there is a DEMOTION IN RANK or a DIMINUTION IN

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PAY; or when a CLEAR DISCRIMINATION, insensibility or disclaim by an employer becomes unbearable to an employee.

An employee is deemed constructively dismissed where his status is changed from regular to casual.

• Six (6) Months Rule

“Floating Status” beyond six months under Article 286 may also amount to constructive dismissal.

• Indefinite Lay-off or Suspension

It is the non-acceptance of a returning employee after exhausting his leave of absence.

VALID DISMISSAL

Art. 282: Termination by Employer (SGF-CO)

1. serious misconduct or willful disobedience to lawful orders; 2. gross and habitual neglect of duty; 3. fraud or willful breach by the employee of the trust reposed by his

employer; 4. commission of a crime; and 5. other analogous causes.

MANAGEMENT RIGHTS

a. Right to Manage

- Employer is free to regulate according to his own discretion and judgment, EXCEPT as limited by special laws.

- QUALIFICATION: as long as it is exercised in good faith

ü For the advancement of the employers interest not for the purpose of defeating or circumventing the rights of the employees under special laws or valid agreements

- JOB CONTRACTING: consultation with the union is not necessary.

• Not unlimited; the prerogative is subject to well-defined legal limitations

b. Right to Discipline

c. Right to Transfer Employees

- It is allowed PROVIDED:

i. There is no demotion in rank; and ii. No diminution of salary, benefits, and other privileges.

- The employees’ security of tenure dies not give him vested right over the position held.

REQUIREMENT:

i. Not unreasonable or inconvenient;

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ii. Not prejudicial to employee; iii. No demotion in rank, diminution of salary, benefits and other

privileges.

d. Right to Demote

- It can be upheld so long as it is not tainted with unfair labor practice.

e. Right to Dismiss

- It is a measure of self-preservation;

- However, it is not absolute, it is exercised only:

i. on just and authorized causes; and

ii. subject to regulation of the state by virtue of its police power.

§ The preservation of the life of the citizens is a basic duty of the state, more vital than the preservation of corporate profits.

- For it to be valid:

i. the employer must show sufficient ground for dismissal; and

ii. observe procedural due process (service of notice to employee and the DOLE).

- The expiration of tenure is not tantamount to dismissal and thus there is no entitlement to separation pay.

JUST CAUSES OF TERMINATION

1. SERIOUS MISCONDUCT

- It is an improper or wrong conduct; - Transgression of some established or definite rule of conduct, a forbidden

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

- It must be serious and in connection with the employee’s work.

*Immoral Conduct: It is a conduct, which is as willful, flagrant or shameless as to show indifference to the opinion of good and respectable members of the community that must likewise be gross.

**The factors attending the circumstance and company policies must also be considered.

2. WILLFUL DISOBEDIENCE

Requisites:

a) Orders, regulations, instructions of the employer must be:

- reasonable and lawful;

- sufficiently known to employee;

- in connection with the duties which the employee had been engaged.

b) Employee’s conduct must be willful or intentional; the willfulness being characterized by a wrongful or perverse attitude.

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- Reasonableness has reference not only to the kind and character of the directions or command but also to the manner in which they are made.

- Disobedience must relate to substantial matters.

**Valid Transfers

- This right flows from ownership;

- In the interest of the efficient and economic operation of its business.

- LIMITATION: mala fides

• Employer CANNOT exercise the right if it is tainted or vitiated by improper motive and is merely a disguised attempt to remove or punish the employee sough to be transferred.

- Demotion of an employee and his transfer to another place of work because of his failure to observe proper diligence in his work, of his indolence, habitual tardiness and absences do not constitute dismissal.

**Invalid Transfers

- The right to transfer personnel must be exercised without grave abuse of discretion putting to mind the basic elements of justice and fair play.

**The transfer is INVALID if done:

q for and illicit or underhand purpose; q to defeat the rights of the employees to self organization; q to penalize the employee for union activities; q to remove an undesirable employee; q to remove an employee, without valid reason and valid purpose; q to inconvenience to the employee.

§ This, however, does not necessarily invalidate a transfer order BUT inconvenience caused by unreasonableness of the transfer order makes the order itself invalid and disobedience thereof is not a reason to dismiss the worker; and

§ Although mere inconvenience does not justify disobedience to a transfer order, the order itself becomes flawed and unenforceable it if fails the criteria of lawfulness and reasonableness.

§ It depends on the circumstances availing in each case.

**A transfer becomes unenforceable if coupled with or is in the nature of a promotion, where the promotion is rejected by employee.

- There is no law that compels an employee to accept a promotion, as promotion is in the nature of a gift or reward, which the person has the right to refuse.

- A person cannot be punished if he was exercising a right.

TRANSFER PROMOTION

It is a movement from one position to another of equivalent rank, level or salary without break of service.

It is an advancement from one position to another with increase of duties and responsibilities accompanied by increase in salary

Lateral movement. Scalar ascent.

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Labor Relations 20

3. GROSS AND HABITUAL NEGLECT OF DUTIES

REQUISITES:

a) Neglect must be gross in character; and

b) It must be habitual.

THUS, single or isolated acts of negligence do not constitute a just cause for the dismissal of an employee

- It is not necessary that the employer show that he has incurred actual loss, damage or prejudice because of the employee’s conduct.

- It is sufficient that the gross and habitual neglect by the employee of his duties TENDS to prejudice the employer ’s interest.

- What is required of the employee is that of ordinary and reasonable

skill, care and diligence. He cannot therefore be discharged on the ground of incompetency merely because he failed to employ the highest degree of skill and care known in the trade UNLESS he is specially contracted by reason thereof.

**Gross Negligence

- It is the want, absence of, or failure to exercise slight care or diligence or the entire absence of care.

- It evinces thoughtless disregard of consequences without exerting

effort to avoid them.

**Abandonment

REQUISITES:

a. failure to report for work or absence without valid or justifiable reason

b. clear intention to sever the employer-employee relationship c. deliberate and unjustifiable refusal of the employee to resume his

work without intention of returning.

GENERAL RULE: The immediate filing of a complaint for illegal dismissal negates abandonment.

EXCEPTION: If abandonment is disproved OR if there is valid waiver.

**Tardiness and Absenteeism

- Acts of insubordination coupled with habitual tardiness are sufficient causes of termination.

- Consider the circumstances attending the tardiness or absence.

4. DISHONESTY, LOSS OF CONFIDENCE

- FRAUD: any act, omission, or concealment, which involves breach of legal duty, trust or confidence justly reposed and injurious to another.

REQUISITES

a. fraud must be committed against the employer or representative;

b. must be committed in connection with the employee’s work.

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Labor Relations 21

NOTE: There must be SUFFICIENT EVIDENCE that en employee had been guilty of a breach of trust or that his employer has ample reasons to distrust him.

LOSS OF CONFIDENCE

- To be a valid reason: it must be genuine;

i. it must be related to the performance of duties of the employee such as would show him thereby unfit to continue working for the employer;

ii. must occupy a position of trust and confidence or to positions where the employee is routinely charged with the care and custody of employer ’s money or property.

- Managerial employees and other employees occupying positions of trust and confidence are entitled to security tenure, fair standards and protection of labor laws.

***Proof Required

- proof beyond reasonable doubt is not necessary;

- it is sufficient that there is some basis for such loss of confidence or if the employer has reasonable ground to believe or entertain the moral conviction that employee concerned is responsible for the misconduct.

GUIDELINES:

a. should not be simulated b. should not be used as a subterfuge for causes which are improper,

illegal or unjustified c. not arbitrarily asserted in the face of overwhelming evidence to the

contrary d. must be genuine and not a mere afterthought e. must hold a position of trust and confidence f. good faith

5. COMMISSION OF A CRIME OR OFFENSE

- This must be committed against the person of the employer or against any immediate member of the employer ’s family.

***Immediate Family:

a. Spouse; b. Ascendants; c. Descendants; d. Legitimate natural or adopted brothers and sisters; e. Relative by affinity in same degrees; and f. Those by consanguinity within the fourth civil degree;

- Conviction for a crime is not necessary before the employee may be dismissed.

- An employee exonerated from the criminal charge may be dismissed from employment if the employer has ample reason to mistrust him.

- If acquittal from the offense does not negate the existence of a ground for loss of trust and confidence, with more reason should conviction fortify the mistrust.

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6. ANALOGOUS CAUSES

- This would depend on the circumstances of each case.

- The cause must be due to the voluntary and/or willful act or omission of the employee.

AUTHORIZED CAUSES

ART.283: an employer may terminate the employment of the employee due to the following: (IRRC)

1. introduction of labor-saving devices 2. redundancy 3. retrenchment to prevent losses 4. closing or cessation of operation

Other Authorized Causes

- total and permanent disability

- disease not curable in six (6) months

- valid application of union security clause

- expiration of period in term employment

- completion of project in project employment

- failure in probation

- defiance of return to work order

- relocation

- commission of illegal acts in a strike

- resignation retirement

- death

• To terminate the employment under Art. 283, the employer must serve a written notice at least one (1) month before intended termination to:

- Employee, and

- Department of Labor and Employment.

• Payment of separation pay (SP):

- IF the cause is due to installation of labor saving devices:

ü SP equivalent to at least one (1) month pay or to at least one month pay for every year of service

- IF in case of retrenchment/closure or cessation of business:

ü SP equivalent to one (1) month pay or at least one half month pay for every year of service.

• An employee whose employment is terminated due to any causes under Article 283 except closure or cessation due to serious losses is entitled to separation pay.

1. INTRODUCTION OF LABOR SAVING DEVICES

- Reduction of the number of workers in a company by the introduction of labor saving devices is justified.

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Labor Relations 23

- It must not be abused and should not be made in the pretext for easing out laborers because of their union activities.

REQUIREMENTS:

1. The installation of labor saving devices must be done in good faith. 2. There must be some valid purpose. 3. There must be due notice. 4. There must be fair and reasonable criteria. 5. There must be payment of separation pay. 6. There is no other remedy available at the option of the employer.

2. REDUNDANCY

- It exists where the services of an employee are in excess of what is reasonably demanded by the actual requirements of the enterprise.

- A position is superfluous.

REASONS:

i. over hiring of workers; ii. decreased volume of business; and

iii. dropping of a particular product line.

- It is of no legal moment that the financial troubles of the company were not of private respondent’s making.

- The determination of the existence of redundancy is not subject to the review of the Labor Arbiter or the NLRC, EXCEPT if it is exercises arbitrarily and maliciously.

3. RETRENCHMENT

- This is one of the economic grounds to dismiss employees and is resorted to by an employer primarily to avoid or minimize business losses.

- The employer bears the burden to prove his allegation of economic or business losses.

- The termination of employment of an employee arising from retrenchment to prevent losses shall entitle the employee affected thereby to separation pay equivalent to one (1) month pay or at least one-half (½) of a month pay for every year of service whichever is higher.

- Retrenchment is recognized as a preventive and curative measure. CAUSES

- Lack of work; where the continuance of the work of the employee is patently inimical to the interest of the employer.

- Business recession.

- Fire.

- Conservatorship contemplates not the liquidation of the company involved but the conservation of company assets and business during the period of stress.

CRITERIA FOR LAYING-OFF

- Less preferred status;

- Efficiency rating;

- Seniority.

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BASIC REQUISITES:

1. It is necessary to prevent losses and such losses are proven.

2. Written notice to employees and to the DOLE at least one month prior to the intended date of retrenchment.

3. Payments of separation pay equivalent to one (1) month pay or at least a half (½) a month pay for every year of service.

4. Exercise of the prerogative to retrench employees in good faith for the advancement of its interests and not to defeat or circumvent the employee’s security of tenure.

5. Employer must use fair and reasonable criteria in ascertaining who will be dismissed or retained.

STANDARDS WHICH JUSTIFY RETRENCHMENT (Lopez Sugar Co. vs. Federation of Free workers, August 30, 1990)

1. The losses expected should be substantial and not merely de minimis in extent.

2. The substantial loss appended must be reasonably imminent, that is, perceived objectively and in good faith by the employer. There must be a certain degree of urgency for retren chment.

3. It must be reasonably necessary and effectively prevent the expected losses. The employer should have taken other measures prior to or parallel to retrenchment to forestall losses.

4. The alleged losses if already realized and the expected imminent losses sought to be forestalled must be proven by sufficient and convincing evidence.

• QUITCLAIMS: Even if there is the signing of quitclaims it will not by itself bar them from enjoining the complaint. Quitclaims executed by laborers are commonly frowned upon as contrary to public policy and ineffective to bar claims.

• LIFO RULE (last in-first out)

The rule indicates that of two (2) or more employees affected by a retrenchment program, the last one employed will be the first to go; seniority of the ones hired earlier thereafter prevails.

Distinction; Redundancy from Retrenchment

Redundancy Retrenchment

As to cause

Results from the fact that the position has became superfluous, in excess of what is needed.

Linked with losses A cost cutting measure made immediately necessary by business reduction or reverses.

As to effect Separation pay is higher. Separation pay is lower.

4. CLOSURE OF BUSINESS OR CESSATION

REQUIREMENTS:

a. Service of a written notice to the employees and to the DOLE at least one month before the intended date thereof;

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Labor Relations 25

b. Cessation of or withdrawal from business operations must be bona fide in character; and

c. Payment to the employees of termination pay amounting to at least half (½) a month pay for each year of service or one month whichever is higher, where closure is not due to serious business losses.

RIGHT TO CLOSE WHETHER LOSING OR NOT

- If the business is not losing but its owner, for reasons of his own wants to get out of business, he in good faith can do so anytime. No law forces anyone to go into business; no law compels anybody to stay in business. But the employees must be paid their severance pay.

- In case of closure due to serious business losses, the employee is not entitled to termination pay. However, the serious losses must be duly proven.

ARTICLE 284: DISEASE AS GROUND FOR TERMINATION

Conditions:

1. Employee is suffering from a disease.

2. His continued employment is prohibited by law or prejudicial to his health or to the health of his co-employees.

3. There must be certification by a public health authority that the disease is of such nature or at such stage that it cannot be cured within a period of six (6) months even with proper medical treatments.

NOTE: A company’s own physician is NOT a competent public health authority.

4. Payment of separation pay equivalent to at least one (1) month salary or to one-half (1/2) month for every year of service whichever is greater.

NOTE: A fraction of six months is considered as one year.

• If there be finding that the termination was illegal, the terminated employee may either be:

a. Reinstated to his former position without loss of seniority rights; OR b. Recovery of back wages.

NOTE: These twin remedies are distinct and separate. Though the grant of reinstatement commonly carries with it the award of back wages, the inappropriateness or non-availability of the one does not carry with it the inappropriateness or non-availability of the other.

• “STRAINED RELATIONS”: Where the relationship of the employee and the employer has been severely strained by reason for their respective imputations of bad faith against each other, to order reinstatement would no longer serve any prudent purpose. In such situation, the court would order the payment of back wages and separation pay, instead of reinstatement.

LIMITATIONS: It must be proven that the employee concerned occupies a position where he enjoys the trust and confidence of his employer, and that it is likely if reinstated an atmosphere of antipathy and antagonism may be generated as to adversely affect the efficiency and productivity of the employee concerned (Globe-Mckay, March 3, 1992).

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• MORAL DAMAGES are recoverable in dismissal cases only where the dismissal was attended by bad faith, fraud or constituted as an act oppressive to labor, or was done in a manner contrary to morals, good customs or public policy (Garcia, 234 SCRA 632).

ARTICLE 285: TERMINATION BY EMPLOYEE

Grounds: (SICO)

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

2. Inhuman and unbearable treatment.

3. Commission of a crime or offense by the employer or his representatives against the person of the employee or any of the immediate members of his family.

4. Other causes analogous to any of the foregoing.

RESIGNATION

It is defined as the act of an employee who finds himself in a situation where he believes that personal reasons cannot be sacrificed in favor of the exigency of the service and he has no other choice but to disassociate himself from his employment.

Two Kinds of Resignation

• Voluntary Resignation

This is beyond the control of the employer.

Where the employees voluntarily signed the resignation letters apparently prepared by the company, the same are VALID.

Where the employee voluntarily resigned and signed the quitclaim after receiving all the benefits, resignation is VALID and BINDING.

The resignation may be withdrawn even if the employee has called it “irrevocable.”

After its acceptance or approval by the employer, its withdrawal needs the employer’s consent.

Filing of a certificate of candidacy by an employee of government-owned-or-controlled corporation constitutes a lawful cause for terminating employment relationship initiated by the employee himself, and he is considered resigned by operation of law (Omnibus Election Code).

Requirements:

1. Resignation may be with or without a just cause. 2. Service of written notice on the employer at least a

month in advance. 3. Acceptance by the employer or authorized

representative.

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General Rule: An employee who voluntarily resigns from employment is not entitled to separation pay.

Exception: There can be entitlement to separation pay if:

1. there is a stipulation of such in the employment contract ;

2. provided in the collective bargaining agreement; 3. payment of the amount is sanction by established

employer practice or policy.

• Forced Resignation or Constructive Dismissal

Burden of Proof (SICO)

The burden of proving that the questioned dismissal is for a just or authorized cause and with due process is upon the employer.

F If the ground for quitting is SICO, the burden is on the employee because the employer cannot be required to prove SICO; otherwise, he would incriminate himself.

F If the ground is transfer, the burden of proving that the transfer is for valid and legitimate grounds rests with the employer.

Between a positive allegation and a negative allegation, the former is preferred.

ARTICLE 286: WHEN EMPLOYMENT DEEMED NOT TERMINATED

“FLOATING STATUS”

1. Bona fide suspension of the operation of the business or undertaking not exceeding six (6) months;

2. Fulfillment of the employee or a military or civic duty.

NOTE: If the floating status lasts for more than six months, the employee may be considered to have been illegally dismissed from the service.

ILLEGAL DISMISSAL

DEFENSES OF EMPLOYER IN ILLEGAL TERMINATION DISPUTES

1st LINE DEFENSES

• Complainant is an INDEPENDENT CONTRACTOR (I. C. Defense)

An employer who interns into a contract with a contractor to perform work for the employer does not thereby create an employer-employee relationship between him and the employee of the contractor.

Contracting is legitimate if the following circumstances concur:

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F The contractor carries on a distinct and independent business and undertakes to perform the job, work or service on its own account and under its own responsibility according to its own manner and method, and FREE FROM THE CONTROL AND DIRECTION OF THE PRINCIPAL in all matters connected with the performance of the work except as to the results thereof.

F The contractor has substantial capital or investment.

F The agreement assures the contractual employees’ entitlement to all labor rights and benefits.

• Complainant is an AGENT (Agent Defense)

ü Complaint is the representative of the employer.

ü There is absence of control.

ü There are indicators of absence of control.

F Complainant is paid commission;

F Subject to rules and regulations regarding outcome of work;

F Required to put up a performance bond;

F Not required to observe hours of work;

F Not required to devote his time exclusively to the company (de Los Reyes Test);

F Time and effort depend entirely on his will and initiative (Basiao Test);

F Not required to account for his time or submit record of his activities;

F Required to liquidate and pay his account at the end of each day;

F Contract may be terminated at the option of either party;

F Complainant can employ his own helpers at his personal expense.

• Complainant is a CONSULTANT (Consultant Defense)

Complaining physician is not a member of the respondent hospitals’ “Specialist Staff,” therefore, not under the employer’s control.

• Complainant is a FREE LANCE OPERATOR (Operator Defense)

Power of control is absent.

• Complainant is a LESSEE (Boundary System Defense)

In the Jardin Case (February 23, 2000) the taxi or jeepney drivers under the “boundary” system are employees of the taxi or jeepney owners / operators; so also are the passenger bus drivers and conductors.

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• Complainant is not under the Respondent’s Control

The right of control is not reserved.

• Complainant, by Contrary Stipulation, is NOT AN EMPLOYEE (Contrary Stipulation Defense)

If the contract is one of the CHOICES, there is no employer-employee relationship.

It is one of ADHESION; there is employer-employee relationship

NOTE: Employer-Employee Relationship is a question of law and, therefore, it cannot be made the subject of agreement.

• Complainant is the EMPLOYEE OF A JOB CONTRACTOR

The circumstances for a job contracting to be legitimate must concur in order for the employer to avail of this defense.

Otherwise, no employer-employee relationship. The contractor is the project owner’s agent (only contracting labor).

• No Successor Employer Defense

The principle of Piercing the Veil of Corporate Fiction applies only for the purpose of making corporate liability a personal liability of the incorporators as corporate officers; not the reverse.

Instrumentality Rule

Where one corporation is so organized and controlled and its affairs are conducted, so that it is in fact a mere instrumentality or adjunct of another, the fiction of the corporate entity of the “instrumentality” may be disregarded.

Principle of Absorption

It only applies when there is an express agreement. If there is bad faith, the employees remain to be employees of the successor employer

• No Employment Contract Defense

No substantial evidence to prove that an employment contract exists.

No written contract defense unavailing.

NOTE: If there is a stipulation against Employer-Employee Relationship, it must be struck down as contrary to law.

• Unregistered Employer Defense

NOTE: Non-registration of an association does not negate employment relations.

• Contract-Laborers Defense

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• Complainant is a PIECE-RATER

NOTE: Payment by piece is just a mode of payment and does not change the essence of the relation.

2nd LINE DEFENSES

• Employer-Employee Relationship is Admitted but:

F Complainant is a PROJECT EMPLOYEE

PRINCIPLE OF SUSPENSION OF WORK

The period during which there is no project to perform is NON-COMPENSABLE under the PRINCIPLE OF NO WORK NO PAY.

If for a particular project, there is no tenure EXCEPT: (1) if continuously re-hired; (2) member of the work pool.

Members of the work pool if considered employee of the construction company while in the work pool, are non-project employees or employees for an indefinite period.

The completion of the project or any phase thereof will not mean severance of employer-employee relationship.

N.B.: If not completed, the complainant cannot be terminated even if contract has already expired. Therefore, what counts is NOT EXPIRATION BUT COMPLETION.

If the complainant was hired to carry out a specific project or understanding that is within the regular or usual business of the respondent, but which is distinct, separate, and identifiable (DSI) as such, from the other undertakings of the company, he is a project employee.

If he was hired to do a job not within the regular or usual business of the respondent, which is identifiably separate and distinct and begins and ends at determined or determinable times, he is a regular employee.

One (1) Year Rule (Art. 280)

It applies only to casual employees and not to project employees especially if: (1) the gaps between their employment is lengthy; (2) they had been terminated upon completion of each project.

F Complainant is under a TEMPORARY EMPLOYMENT CONTRACT

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The completion of the project and the names of the employees terminated must be reported to DOLE to make the defense tenable.

F Complainant is a CONTRACTUAL EMPLOYEE / TERM

EMPLOYEE

Complainant must not have rendered more than one (1) year of continuous or broken service with respect to the activity in which he is employed.

• Not Yet Regular (“Regular Contractual” Defense)

A CBA provision stating that employees are classified first as regular contractual and not yet entitled to CBA benefits except when they are promoted or regularized is VOID.

F Complainant is employed on a “PER NEED” Basis.

There must be no reasonable causal connection between the particular activity performed by the complainant and the usual business or trade of the respondent.

F Complainant is a consultant whose term is Co-Terminus with Project.

Indicators that the work is NOT co-terminus with project: (1) portion of contract that says “contingent upon progress accomplishment;” (2) the contract gives the respondent the right to determine the personnel and their number as the work progresses.

F Complainant is NOT in the Payroll.

THEORY OF “ON LEAVE WITHOUT PAY” EMPLOYEES

The fact that workers are not regularly maintained in the payroll and are free to offer their services to other companies, when there are no projects, cannot defeat their status of regularity. The cessation of construction activities at the end of every project is foreseeable suspension of work. The employment relation is NOT SEVERED. The employees are strictly speaking not separated but simply ON LEAVE WITHOUT PAY until they are re-employed. It does not denote project employment.

F Complainant is a PROBATIONARY EMPLOYEE (Expiration Defense).

CONTRACT OF ADHESION RULE

If the contract is ambiguous, interpret it in favor of regular employment status.

Complainant must be properly apprised of the reasonable standards for regularization and he failed to meet. Due process must be observed.

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• Prescription

ü 4 years – Illegal dismissal ü 3 years – Money claims

• Res judicatat or Failure to Prosecute Non-submission of position papers

• Improper Venue

Substantial justice requires that workers who are economically disadvantaged must litigate before the nearest governmental machinery to hear and resolve the dispute.

REMEDIES / RELIEFS FOR ILLEGAL DISMISSAL

The normal consequences of a finding of illegal dismissal are:

• Immediate reinstatement; and • Payment of full back wages (REFER TO ART. 279).

NOTE: Take note that damages and attorney’s fees are not mentioned. Therefore, the rule to apply is: what is NOT alleged, prayed for, and proven CANNOT BE AWARDED. On the other hand, even if not expressly prayed for, back wages and reinstatement can be ordered because their basis is the law.

The two forms of relief are distinct and separate, one from the other. Though the grant of reinstatement commonly carries with it an award of back wages, the inappropriateness or non-availability of one does not carry with it the inappropriateness or non-availability of the other. There may be reinstatement without back wages, or back wages without reinstatement. But either requires a finding of illegal dismissal.

REINSTATEMENT

Restoration to a state from which one has been removed.

Employment for another is not a waiver of the right to reinstatement as it was done in the fulfillment of the worker’s obligation to minimize damages as a result of his unjustified dismissal.

If the position previously occupied has already been filled up, the proper remedy would be to reinstate the dismissal employee to a SUBSTANTIALLY EQUIVALENT POSITION.

However, the fact that the dismissal employee has already been replaced does not affect his right to reinstatement. The other workers hired are deemed to have accepted their employment as replacements with the knowledge the same is subject to the consequences of the labor dispute.

An employee who, at the time of his dismissal was occupying a temporary or lower position cannot be ordered reinstated to a permanent or higher position.

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GROUNDS FOR SEPARATION PAY IN LIEU OF REINSTATEMENT

• Reinstatement can no longer be effected in view of the LONG PASSAGE OF TIME or because of the realities of the situation.

• It would be INIMICAL to the employer’s interest.

• Reinstatement may no longer be FEASIBLE.

• It will not serve the best INTERESTS of the parties.

• The company would be PREJUDICED by the workers’ continued employment.

• It will not serve the prudent purpose as when SUPERVENING facts have transpired which make execution unjust or inequitable.

• There is a resultant STRAINED RELATIONS or irretrievable estrangements between the employer and the employee where the employee concerned occupies a position of trust and confidence and it is likely that if reinstated an atmosphere of antipathy and antagonism may be generated as to adversely affect the efficiency and productivity of the employee.

Reinstatement will not be insisted upon if it is shown that the employee was dismissed for valid and sufficient reason although the dismissal procedure was defective.

REINSTATEMENT IMMEDIATELY EXECUTORY

Under Art. 223, the decision of the Labor Arbiter reinstating a dismissed employee is immediately executory even while the case is brought up on appeal.

There must be Immediate execution even without a writ of execution. However, the employer is granted the OPTION to merely reinstate the employee in the payroll and is entitled to receive her salary and other benefits as if she were working.

NOTE: Under Art. 224 (a), a Writ of Execution is needed for a judgment of reinstatement by the NLRC after it becomes final and executory.

CIRCUMSTANCES THAT BAR REINSTATEMENT

• Dismissal for Cause

An employer should not be compelled to allow an employee to continue in the service where a justifiable cause for his discharge exists.

• Abandonment of Right or Laches

An employee entitled to reinstatement may waive such right by his failure to report for work when he had the opportunity to do so.

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If he avails of it within the four (4)-year prescriptive period for reinstatement, the doctrine of laches does not apply.

• Resignation of the Employee

Where an employee has resigned, he has no right whatsoever to any financial assistance, separation pay, and to reinstatement, predicated on the fact that resignation brings separation from the service is on a VOLUNTARY basis, that is, WITHOUT COERCION OR COMPULSION.

• Physical Incapacity of Employee

The employer may require employee to undergo physical or medical examination, but it would NOT be imposed as a pre-condition for reinstatement. If they were found to be ill or suffering from some disability, they would be entitled to all benefit given to other employees similarly situated.

If the reinstatement is no longer feasible, the proper remedy is separation pay.

• Employee Accepts Retirement Pay

Retirement pay has the characteristic of separation pay, thus the employee loses his right to reinstatement.

If the employee had reached the mandatory age of retirement, reinstatement is no longer feasible. He should be awarded his back wages.

• Strained Relations

This accord an employee back wages and separation pay. This is so especially if the position of employee was one of trust and confidence.

• Closure or Cessation of Operation

Because of:

F Business reverses. F Acts of the State.

• Transfer of Business to an Innocent Transferee

Unless expressly assumed, labor contracts being in personam, should not affect a transferee acting in GOOD FAITH.

The transferor in MALA FIDE is required to pay dismissed employees a reasonable month’s wages to tide them over while looking for suitable employment.

It is applicable only when the transferee is an entirely new corporation with a distinct personality from the integrating firms, and not when it is found to be a mere ALTER EGO of the merging firms.

• Economic Reverses

Reinstatement is not feasible in order to give employment to a greater number of persons that what is reasonably demanded by the actual requirements of the business.

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• Abolition of Position

• Prescription

An action for illegal dismissal prescribes in four (4) years. Therefore, it follows that an action for reinstatement also prescribes in four (4) years (Article 1146, New Civil Code).

• Conviction for a Crime

An employee’s conviction is a supervening cause that renders unjust and inequitable a decision mandating reinstatement with back wages.

• Not Conducive to Industrial Harmony

An illegally dismissed managerial employee on probationary status cannot be reinstated.

“WITHOUT LOSS OF SENIORITY RIGHTS”

Seniority

Length of service of employees in a specified unit for the purposes of determining the order, in which workers will be laid-off, promoted, transferred, or rehired.

Seniority right acquired through long-time employment is CONTRACTUAL and NOT CONSTITUTIONAL.

Benefits, including seniority rights and other privileges, will not be affected by the employee’s absence, due to suspension of employment brought about by the unlawful dismissal.

BACK WAGES

Back Wages; Illegal Termination

Back wages are of a form of relief that restores the income of the employee that was lost due to the unlawful dismissal.

Nature

It is not a private compensation or damage but in furtherance and effectuation of the public objectives of the Labor Code. It is in the nature of a command to make public reparation.

Formula in Fixing the Amount of Back Wages

• MERCURY DRUG RULE (1974)

The rule limits back wages of illegally dismissed employees to an amount equivalent to their wages for 3 years without qualification and deduction.

Also known as the three (3)-year rule.

• R.A. No. 6715 (1989)

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It required the payment of “full back wages”; ABANDONED the Mercury Drug Rule.

In the case of Maranaw Hotel vs. CA (November 6, 1992) the Court initiated the rule that an illegally dismissed employee may be paid his back wages, allowances, and other benefits for the entire period he was out of work, subject to deduction of any amount which the employee may earned during the period of his illegal termination.

This ruling says “FULL BACK WAGES BUT WITH DEDUCTIONS”

Justice Padilla dissented saying back wages with deductions are not “full.”

• BUSTAMANTE RULING (November 28, 1996)

Back wages awarded to an illegally dismissed employee should not, as a general rule, be diminished or reduced by the earnings derived by him elsewhere during the period of his illegal dismissal. The full back wages without deductions serve as part of the price or penalty the employer must pay for illegally dismissing the employee.

Back Wages; Termination without Due Process

Serrano Doctrine

The Serrano Ruling upheld the validity of the employment termination insofar as its reason is concerned but the employer was at fault in not observing procedural due process. The penalty would be full back wages from the time of termination to the finality of the court’s decision.

Terminations which are illegal for lack of procedural process are “INEFFECTUAL”.

Circumstances that Bar the Award of Full Back Wages

• Death, Physical, or Mental Incapacity It has the same underlying principle with the principle of “no work; no pay”. This is also applies where employee refuses to work.

• Business Reverses Cessation or closures of business due to economic reverses DOES NOT entitle a separated employee payment of back wages, but only separation pay.

• Act of the State Such as proclamation of Martial Law.

• Detention in Prison

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The detention caused the prolonged absence that barred him to earn wages.

Back Wages of Irregular Workers

The wages earned by other irregular workers doing the same kind of work, who have not been dismissed, would be the basis in determining the back wages of dismissed irregular workers.

SEPARATION PAY

It is the amount that an employee receives at the time of his severance from the service and is designed to provide the employee with the wherewithal [or finances] during the period that he is looking for another employment.

Separation pay is payable to an employee whose services are validly terminated for authorized causes (Article 283 and 284).

An employee dismissed for a just cause is not entitled to separation pay (Article 282).

EXCEPTION:

Where the employee is dismissed for causes other than serious misconduct or those reflecting on his moral character, separation pay may be allowed as a measure of social justice.

AMOUNT TO BE AWARDED

• Installation of Labor-Saving Devices and Redundancy

At least one (1) month pay or at least one (1) month pay for every year of service, whichever is higher.

The employer is richer.

• Retrenchment to Prevent Losses and Closure or Cessation of Operations Not Due to Serious Business Losses or Financial Reverses

One (1) month pay or at least half (½) a month pay for every year of service whichever is higher.

Employer is poorer

• Disease

One (1) month salary or half (½) a month pay for every year of service, whichever is greater.

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

NOTE: If closure is due to SEVERE Financial Losses, it is still debatable whether separation pay should be given.

If it is proven that 10% of the capital investment has been impaired, the employer should be exempt for the payment of separation pay.

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The grant of separation pay and at the same time upholding the validity of QUITCLAIMS and RELEASE are not at all incongruous.

Allegation of non-payment of benefit to which an employee is entitled is a negative allegation. The BURDEN OF PROVING that such benefit has been paid rests upon the EMPLOYER.

Where the debtor (employer) introduces some evidence of payment, the BURDEN OF GOING FORWARD with the evidence -- as distinct from the general burden of proof – is shifted to the creditor (EMPLOYEE) who is then under obligation to show non-payment.

DAMAGES

NORMAL DAMAGES are recoverable in dismissal cases only where the dismissal was attended by BAD FAITH or FRAUD or constituted an act oppressive to labor, or was done in a manner contrary to morals, good customs, or public policy.

EXEMPLARY DAMAGES in dismissal cases may be awarded only if the dismissal was effected in a wanton, oppressive, or malevolent manner.

Article 217 is comprehensive enough to include all forms of damages arising from employer-employees relationship. The clause “arising from the employer-employee relations” should apply with equal force to the claims for damages filed by employees as well as to the claim of an employer, where the basis for the claim arises from or is necessarily connected with the fact of termination. The claim for damages by the employee is in the nature of a COUNTERCLAIM in the illegal dismissal case.

For failure to observe the procedural requirements, a sanction may be imposed by the court on the employer to indemnify the dismissed employee.

INDEMNITY FOR HOUSE HELPERS

If the house helper is unjustly dismissed, he or she shall be paid the compensation already earned, plus 15 days by way of indemnity.

ATTORNEY’S FEES

In employment termination cases, attorney’s fees are not recoverable where there is no sufficient showing of bad faith on the part of private respondent.

FINANCIAL ASSISTANCE (Justice Outside the Law)

Where there is doubt that dishonesty was committed, financial assistance may still be awarded an employee who has rendered long years of service. The doubt is resolved in employee’s favor; hence, despite the nature of

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the offense, financial assistance on grounds of compassionate justice may still be given.

QUITCLAIMS

Once an employee resigns and executes a quitclaim in favor of the employer, he is thereby estopped from filing any further money claim.

• It should be voluntarily signed.

• But even if voluntary, if it is contrary to public policy, it is deemed INVALID.

NOTE: Not all waivers and quitclaims are invalid as against public policy. If the agreement was voluntarily entered into and represents a reasonable settlement, it is binding on the parties. It is only when there is clear proof that the waiver was wangled [of fixed] from an unsuspecting or gullible person, or the terms are unconscionable that the law will step in to annul it.

“Dire necessity” is not an acceptable ground for annulling the releases.

PRESCRIPTION

ü 4 years- Illegal Dismissal ü 3 years – Money Claims

XII

RIGHT TO SELF ORGANIZATION AND LABOR ORGANIZATION

LEGAL BASES

1. Art. III, Sec. 8, 1987 Philippine Constitution:

- 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.

2. Art. XIII, Sec. 3, 1987 Philippine Constitution

3. Executive Order 111

4. Executive Order 180 (Right of Government Employees to Organize and Unionize)

5. Presidential Decree 807

NATURE AND EXTENT (Art. 246)

• This right shall include the right to form, join, or assist labor organizations for the purposes of :

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§ Collective bargaining;

§ To engage in lawful concerted activities for the same purpose;

§ Mutual aid and protection.

COVERAGE

General Coverage (CIA CHREM)

• All Persons Employed In:

Commercial

Industrial Enterprises

Agricultural

Charitable

Religious Institutions

Educational

Medical

F For collective bargaining F For mutual aid and protection

NOTE: This is whether such institutions or enterprises are operating for profit or not

• The following are also included in the coverage of the right to self-organization (AIRWIS):

F Ambulant workers

F Intermittent workers

F Rural workers

F Workers with no definite employers

F Itinerant workers

F Self-employed

Specific Coverage (STAGNIS)

• Supervisory Employees

Supervisory employees shall not be eligible for membership in a labor union of the rank-and-file employees but may form, join or assist separate labor unions of their own

A union whose membership is a mixture of supervisors and rank-and-file is not and cannot become a legitimate labor organization

A local supervisor’s 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 and the rank-and-file employees are directly under the authority of the supervisory employees

}

}

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• Terminated Employees who are Contesting their Termination

• Aliens with Valid Work Permit

Provided that said aliens are nationals of a country, which grants the same or similar rights to Filipino workers (Art. 269, LCP).

• Government Employees

• New Employees

• Iglesia ni Kristo Members

The right of members of the INK sect not to join a labor union for being contrary to religious beliefs, does not bar the members of that sect from forming their own (KMCD v. Pura-Ferrer-Calleja, June 20, 1988)

• Security Guards

RIGHT OF EMPLOYEES IN THE PUBLIC SERVICE (Art. 244, LCP)

Employees of GOCC’s established under the corporation code shall have the right to organize and to bargain collectively.

NOTE:

• “Manner of Creation Test”

If employees of private corporation acquired by GOCC with original charter, they can organize for purposes of collective bargaining.

Employees of National Government and LGU’s as well as employees of

GOCC’s with original charters shall have the right to form associations for purposes not contrary to law.

• Executive Order 180

The right of government employees to form, join, or assist employees’ organizations of their own choosing is not regarded as existing or available for purposes of collective bargaining but simply for the furtherance and protection of their interests (Arizala vs CA, Sept. 14, 1990).

Excluded from negotiation by Government employees are the terms and conditions of employment that are fixed by law, it being only those terms and conditions not otherwise fixed by law.

…concedes to government employees the right to engage in concerted activities, including the right to strike provided such activities are exercised in accordance with law.

Exclusions (HEMACEN)

• High level Government employees; • Employees of Coop who are members; • Managerial employees; • AFP and police personnel; • Confidential employees; • Employees of International Organizations with immunity; • Non-employees;

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INELIGIBILITY OF MANAGERIAL EMPLOYEES TO JOIN ANY LABOR ORGANIZATION (Art. 245, LCP)

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

TYPES OF MANAGERIAL EMPLOYEES

• First-line Managers

Direct operating employees only; they do not supervise other managers. They are also called SUPERVISORS.

• Middle Managers

Direct the activities of other managers and sometimes those of operating employees.

• Top Managers

Responsible for the overall management of the organization.

NOTE: Look into the functions they perform before determining whether the managerial employee is excluded or not.

CONFIDENTIAL EMPLOYEES

Confidential employees shall be ineligible to form, assist, or join labor unions.

ELEMENTS (concurrent/ cumulative)

• Employee assists/acts in a confidential capacity.

• A person, who formulates, determines, and makes management policies in the field of labor relations.

RULES

The following are the rules of disqualification or non-disqualification arising from the access to (1) business [or financial], and (2) labor relations information of a confidential employee:

• Access to labor relations information = DISQUALIFIES

• Access to business or financial information = DOES NOT DISQUALIFY

• Access to labor relations information is INHERENT in the job = DISQUALIFIES

• Access is ACCIDENTAL = DOES NOT DISQUALIFY

LABOR ORGANIZATIONS

Definition

Any union or association of employees which exists in whole or in part for the propose of collective bargaining or of dealing with employers concerning terms and conditions of employment.

Legitimate Labor Organization

It means any labor organization duly registered with the DOLE and includes any branch or local thereof.

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Governmental Regulations

A. Registration Requirements

• For Independent Registration

The application for registration of an independent union shall be supported by the following: (CAMPRON)

F Constitution and By-laws;

F Annual Financial Report [if in existence for more than one (1) year];

F Minutes of Organizational Meeting;

F Principal Address of Union;

F Registration Fee;

F Officers’ Names and Addresses;

F Names of workers constituting 20% of the appropriate bargaining unit.

WHERE to file application:

The application shall be filed with and be acted upon by the REGIONAL OFFICE where the principal office is located.

• For the Registration of a Federation / National Union:

The application for registration of a federation or national union shall be supported by:

F Annual Financial Report [if in existence for more than one (1) year];

F Minutes of Organizational Meeting;

F Registration Fee;

F Names of workers constituting 20% of the appropriate bargaining unit.

F Resolution of affiliation of at least 10 locals/chapters or affiliates.

F Names and addresses of the companies where the locals/chapters operate and the list of all the members in each company involved.

NOTE: The locals/chapters or affiliates must be a duly recognized or certified bargaining representative in the establishment where it seeks to operate.


Application shall be filed with the Bureau. Where the application is filed with the Regional Office, the same shall be immediately forwarded to the Bureau within 48 hours from filing thereof.

• For registration of an Industry or Trade Union Center

The application for registration of an industry or trade union shall be supported by the following:

F List of its member organizations and their respective presidents;

F Resolution of membership of each member organization;

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F Name and principal address of the applicant;

F Officers’ names and their addresses;

F Minutes of the organizational meeting;



Application shall be filed with the Bureau. Where the application is filed with the Regional Office, the same shall be forwarded to the Bureau within 48 hours from filing thereof.

• For Registration of Worker’s Association

The application for registration of a worker ’s association shall be supported by:

F Members’ names and addresses;

F Principal office of the applicant;

F Minutes of organizational meetings;



The application for registration of a workers’ association, whose place of operation is confined to one regional jurisdiction, shall be filed directly and acted upon by the Regional Office where it operates. Otherwise, the application shall be filed and acted upon by the Bureau.

Provisions Common to the Registration of Labor Organizations and Workers’ Association

The application for registration, including all the enclosed [or supporting] documents, shall be verified under oath by its secretary or treasurer, as the case may be, and attested to by its President.

After a labor organization has filed the necessary papers and documents for registration, it becomes mandatory for the Bureau or Regional Office as the case maybe, to check if the registration requirements have been complied with. The basis for the issuance of a certificate of recognition should be compliance with the requirements of recognition.

• For Chapter Registration

A duly registered federation or national union may directly create a local/chapter by submitting to the Regional Office or to the Bureau two (2) copies of the following:

F Charter certificate issued by the federation or national union.

F Names of the local/chapter ’s officers and their addresses

F Principal office of the local/chapter.

F Constitution and By-laws of the local/chapter.

All the foregoing supporting requirements shall be certified under oath by the secretary or the treasurer of the local/chapter and attested to by its president.

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NOTE: A duly registered workers’ association may likewise charter any of its branches, subject to the filing of the documents prescribed for charter registration.

A duly constituted local/chapter shall acquire legal personality:

§ Only for purposes of filing a petition for certification election from the date it was issued a charter certificate; and

§ For entitlement to all other rights of a legitimate labor organization.

It shall be reckoned from the date of filing of the complete documents enumerated therein.

Rationale of Registration

Registration makes a labor organization legitimate in the sense that it is clothed with legal personality to claim the representational and bargaining rights.

Registration is not a limitation to the right of assembly/association which may be exercised with or without said registration; it is merely a condition sine qua non for the acquisition of legal personality.

Effect of Registration

The labor organization or worker ’s 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.

B. Rights of a Labor Organization (Art. 242, LCP)

1. to act as the representative of its members for the purpose of collective bargaining;

2. to be certified as the exclusive representatives of the employees in an appropriate collective bargaining unit;

3. to be furnished with the annual audited financial statements.

These financial statements may be asked in writing by the Union in FOUR points in time:

i. After the union had been recognized as the sole bargaining representatives;

ii. After certification by the DOLE as the sole bargaining representative;

iii. Within the last 60 days of the life of the CBA; and

iv. During the collective bargaining negotiation.

4. to own property for the use and benefit of the organization; 5. to sue and be sued in its registered name; and

6. to undertake all activities designed to benefit of the organization and its members.

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C. Rights of Union Members (Art.241, LCP); Political Rights (REN2)

F Right against knowing admission of subversives;

F Election of officers directly, by secret ballot every five (5) years;

F No imposition of other qualification for positions except membership in good standing; and

F No election or appointment of persons convicted of crimes involving moral turpitude.

• Deliberative Right

F Determination by secret ballot of all major policies

• Rights over Money Matters (STAR4N5U)

F Salaries of officers should be authorized by the Constitution and By-laws or General Membership Resolution;

F True and correct accounting by treasurer: (1) at least once a year within 30 days after the close of its fiscal year; (2) at such other times as may be required by a resolution of the majority of the members; (3) upon vacating his office;

F Accounts (Books of) shall be open to inspection during office hours;

F Reports on all financial transactions, full and detailed;

F Records on all income showing the sources;

F Receipts of all payments signed by the collector;

F Records of all expenditures showing payee and purpose;

F No arbitrary, excessive initiation fee, fine;

F No collection of fees unless authorized by Constitution and By-laws;

F No additional compensation for officers;

F No special assessments unless authorized by General Resolution;

F No check off unless authorized by individual written resolution;

F Use of funds only if authorized by Constitution and By-laws or general resolution;

• Right to Information

F information on CBL, CBA, and their rights and obligations

NOTE: The Regional Director of DOLE, not the labor arbiter has jurisdiction over check-off disputes

D. Union- Member Relationship

The relationship is fiduciary in nature and arises out of two factors:

1. Degree of dependence of the individual employee on the union organization; and

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2. Comprehensive power vested in the union with respect to the individual (Heirs of Teodolo M. Cruz vs. CIR, 30 SCRA 917).

Consequence of Violation of Rights or the Conditions of Membership

• Cancellation of union registration; and

• Expulsion of culpable officers.

NOTE: Under the Implementing Rules of the Labor Code, it provided that no cancellation shall be ordered unless the complaint is supported by at least thirty percent (30%) of the union membership.

EXCEPTION: When the violation directly affects only one or two members then such members would be enough to report such violation.

Check Offs and Assessments

- Under Article 277 (a), it recognizes the right of the union to collect union dues.

- The amount of union dues should be reasonable and Article 241 prohibits the imposition of excessive or arbitrary fees.

q DUES are payments used to meet the union ’s general and

current obligations.

Requirements of Payment:

a. regular;

b. periodic;

c. uniform.

q REQUISITES FOR SPECIAL ASSESSMENTS FOR THE UNION’S INCIDENTAL EXPENSES:

1. authorization by a written resolution of the majority of the members at the general membership meeting duly called for such purpose;

2. secretary’s record of the minutes of the meeting; and

3. individual written authorization for check off duly signed by the employee.

NOTE: Jurisdiction over check off disputes is under the Regional Director of the DOLE and not the labor arbiter. This is because the dispute is not a money claim, instead a complaint against the union.

E. Union Affiliation and Disaffiliation

AFFILIATION

- An AFFILIATE is an independently registered union that entered into an agreement of affiliation with a federation or a national union.

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- It also refers to a chartered local, which applied for and was granted an independent registration but did not disaffiliate with the mother federation or the national union.

• Requirements for the Report of Affiliation (SEC. 16, Rule111, D.O. No. 40-03)

1. Resolution of the labor union ’s board of directors approving the affiliation;

2. Minutes of the general membership meeting approving the affiliation;

3. Total number of members comprising the labor union and the names of the members who approved the affiliation;

4. Certificate of affiliation issued by the federation in favor of the independently registered labor union; and

5. Written notice to the employer concerned if the affiliation union is the incumbent bargaining agent.

WHERE to file: to the Regional Office that issued the union’s certificate of registration.

DISAFFILIATION

- The freedom to disaffiliate is a protected labor activity and may be exercised only when warranted by the circumstances.

• SANCTIONED PERIODS OF DISAFFILIATION:

1. during the 60-day period (freedom period) immediately preceding the expiration of the CBA.

2. even before the onset of the freedom period when such disaffiliation is effected by a majority of the members of the bargaining unit.

• EFFECTS OF DISAFFILIATION:

1. If the union is not independently registered, it is not entitled to the rights and privileges granted to legitimate labor organizations.

2. The federation is entitled to receive the dues from the employer only as long as the union is affiliated with the federation. Without said affiliation, the employer has no link with the federation.

3. The CBA continues to bind the members of the new or disaffiliated and independent union up to the CBA’s expiration date. (SUBSTITUTIONARY DOCTRINE)

q Under this doctrine, the employees cannot revoke the validly executed collective bargaining contract with their employer by the simple expedient of the changing of the bargaining agent. The new agent must respect the contract.

• REVOCATION OF CHARTER:

- A federation, national union or worker ’s association may revoke the charter issued to a local or chapter.

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Grounds for Revocation:

1. Disloyalty;

2. such other grounds as may be specified in the constitution and by-laws of the federation, national union or worker ’s association.

Effect: the revocation will serve to divest the local/chapter of its legal personality upon receipt of the notice of the Bureau, UNLESS in the meantime the local/chapter has acquired independent registration.

MERGER OR CONSOLIDATION

MERGER is 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 organization.

CONSOLIDATION/AMALGAMATION refers to the creation or formation of a new union arising from the unification of two or more unions. This process usually occurs between two unions that are approximately of the same size.

Notice of Merger/Consolidation

WHERE TO FILE: the notice shall be filed to and recorded by the Regional Office that issued the certificate of registration or certificate of creation of chartered local being merged or consolidated.

Requirements:

1. the minutes of merger or consolidation convention or general membership meetings of all the consolidating or merging labor organizations with the list of their respective members who approved the same;

2. amended constitution and by-laws and the minutes of its ratification.

CHANGE OF NAME

WHERE TO FILE: The notice for change of name shall be filed with the Bureau or the Regional Office where the concerned

labor organization ’s certificate of registration or certificate of creation of chartered local is issued:

OTHER REQUIREMENTS:

1. approval or ratification of change of name; and

2. amended constitution an by laws.

EFFECT: The change of name shall not affect the legal personality of the organization and the rights and obligation

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of a labor organization under its old name shall continue to be exercised under its new name.

F. Cancellation of Registration (ART.238-239, LCP)

GROUNDS (ART. 239, AS AMENDED by RA 9481; May 25, 2007)

a. misrepresentation, false statement or fraud in connection with the adoption, ratification of the constitution and by-laws or amendments thereto, minutes of ratification;

b. misrepresentation, false statement or fraud in connection with the election of officers, minutes of the election, the list of voters or failure to submit these documents together with the list of the newly elected officers within thirty (30) days from election;

c. voluntary dissolution of members.

NOTE: The failure to submit the documents within thirty (30) days from adoption or ratification, as previously required by Art. 239, is NO LONGER a ground for cancellation but shall subject the erring officers or members to suspension, expulsion from membership or any appropriate penalty. (SEE FURTHER RA 9481)

GROUPING OF THE GROUNDS

a. Commission of any of the acts enumerated under Article 239, which includes the failure to meet the registration requirements under articles 237, and 238.

b. Violation of any of the acts enumerated under Article 241 (violation of the rights and conditions of membership) if the petition for the cancellation is supported by at least 30% of the membership.

NOTE: “Cabo” system refers to a person or a group of persons or to a labor group, which, in the guise of a labor organization, supplies workers to an employer with or without any monetary or other consideration whether in the capacity of an agent of the employer or as an ostensible independent contractor.

WHO FILES THE PETITION: Any party in interest except in an action involving violations of Article 241, which can only be commenced by members of the labor organization constituting at least thirty percent of all the members.

WHERE TO FILE:

• for legitimate independent labor union, chartered local or worker ’s association: to the REGIONAL DIRECTOR;

• for federations, national or industry unions and trade union centers: to the BUREAU DIRECTOR.

NOTE: Inclusion as members of employees outside the bargaining unit shall not be aground for the cancellation of union registration. They are automatically deemed removed from the list of membership of said union.

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VOLUNTARY CANCELLATION OF REGISTRATION

REQUIREMENTS:

a. at least two-thirds (2/3) of members vote is attained, in a meeting called for voluntary cancellation of registration, to dissolve the organization; and

b. an application to cancel registration is submitted by the board of the organization and attested by the president.

APPEAL

a. cancellation orders issued by the regional director are appealable to the BLR;

b. decisions of the BLR are final and executory;

c. BLR decisions on cancellation issues, which originated in the BLR itself, may be appealed to the SOLE. (Abbot Laboratories vs. Abbot Laboratories Employees Union, et. al., January 26, 2000).

XIII

UNION REPRESENTATION

APPROPRIATE BARGAINING UNIT

BARGAINING UNIT: It is defined as 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 (Book V, Rules Implementing the Labor Code).

BARGAINING AGENT: Is the one chosen union to represent the CBU in

bargaining with the employer.

Factors to Consider

- The determination of what constitutes a proper bargaining unit lies primarily with the Bureau;

- No individual factor is given by law decisive weight:

a. whether it will best assure to all employees the exercise of their collective bargaining rights;

b. the bargaining unit is one which must be comprised of constituents enjoying a community of interest;

c. desires of employees; and

d. geographical location.

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Factors to Consider in Community of Interest or Mutuality of Interest (S4FGC2HED)

a. Similarity in the scale and manner of determining earnings;

b. Similarity in employment benefits, hours of work and other terms and conditions of employment;

c. Similarity in the kinds of work performed;

d. Similarity in the qualifications, skills and training of the employees;

e. Frequency of contact or interchange among the employees; f. Geographic proximity;

g. Continuity or integration of production processes; h. Common supervision and determination of labor-relations policy;

i. History of collective bargaining;

j. Extent of union organization; k. Desires of the affected employees.

GLOBE DOCTRINE: It provides the desires of the employees are relevant to the determination of the appropriate bargaining unit. The relevancy 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.

NOTE: The determination of the scope or membership of the bargaining unit also leads to the determination of:

o The employees who can vote in the certification election;

o The employees to be represented in bargaining with the employer; and

o The employees who will be covered by the resulting CBA.

Mode of Selection of Appropriate Bargaining Unit

A. VOLUNTARY RECOGNITION

- Where a clear majority of the employee, without subjection to coercion or other unlawful influence, have made clear their desire to be represented by a particular union, the employer may recognize and contract with such union.

- It is possible only in an unorganized establishment.

WHEN to file: Within thirty (30) days from recognition, the employer and the union shall submit a notice of voluntary recognition.

WHERE to file: It must be filed to the Regional Office who issued the recognized labor union ’s certificate of registration or certificate of creation of a chartered local.

REQUIREMENTS

The notice of voluntary recognition shall be accompanied by the original copy and two (2) duplicate copies of the following documents:

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1. JOINT STATEMENT under oath of voluntary recognition attesting to the fact of voluntary recognition;

2. CERTIFICATE OF POSTING of the joint statement for fifteen (15) consecutive days in at least (2) conspicuous places in the establishment or bargaining unit where the union seeks to operate;

3. the APPROXIMATE NUMBER OF EMPLOYEES in the bargaining unit, accompanied by the names of those who support the voluntary recognition comprising at least a majority of the members of the bargaining unit; and

4. STATEMENT that the labor union is the only legitimate labor organization operating within the bargaining unit.

o All accompanying documents must be certified under oath by the employer and president of the recognized labor union

ACTION on the Notice

o IF SUFFICIENT IN FORM: within ten (10) days from receipt of the notice.

o IF INSUFFICIENT IN FORM: the Regional Office within ten (10) days from receipt of notice notify the labor union of its findings and advise it to comply with the necessary requirements.

§ Failure to complete by the employer or the labor union within

thirty (30) days from receipt of the advisory: return of the notice of voluntary recognition without prejudice to its re-submission.

EFFECT

From the time of recording, the union shall enjoy the rights, privileges and obligations of an exclusive bargaining representative

NOTE: Entry of the voluntary recognition shall bar the filing of a petition for certification election by any labor organization for a period of one year from the date of entry.

B. CERTIFICATION ELECTION

- It 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.

WHO may File

• ORGANIZED Establishment

F Any LLO supported by the written consent of at least 25% of all the employees in ABU.

F Any employer, when requested to bargain collectively.

• UNORGANIZED Establishment F Any LLO.

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F Any employer, when requested to bargain collectively.

WHEN to File:


F NO CBA, any time outside the 12-month bar, negotiation bar, and deadlock bar.

F During the 60-day “‘freedom period” of a duly registered CBA.

• UNORGANIZED Establishment

F Anytime

WHERE to File:

It may be filed with the MED-ARBITER through the Regional Office, which has over the principal office of the employer or where the bargaining unit is principally situated

FORM of Petition

It shall be in writing and under oath.

CONTENTS of Petition

• When filed by an LLO

F Name of petitioner, its address, and affiliation if appropriate, the date of its registration and number of its certificate of registration if petitioner is a federation, national union or independent union, or the date it was reported to the Department if it is a local/chapter.

F Name, address and nature of the employer ’s business.

F Description of the bargaining unit.

F Approximate number of emplo yees in the bargaining unit.

F The names and addresses of other LLO in the bargaining unit.

F A statement indicating any of the following circumstances:

~ That the bargaining unit is unorganized or that there is no registered CBA covering the employees in the bargaining unit;

~ If there exists a duly registered CBA, that the petition is filed within the 60-day freedom period of such agreement;

~ If another union had been previously certified in a valid certification, consent or run-off election or voluntarily recognized, that the petition is filed outside the one (1)-year period from such certification or run -off election and no appeal is pending thereon, or

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from the time the fact of recognition was entered into the records of such union.

F In an organized establishment, the signature of at least 25% of all employees in the ABU which shall be attached to the petition at the time of its filing; and

F Other relevant facts

• WHEN Filed by an Employer

F Name, address and general nature of the employer ’s business.

F Names and addresses of the legitimate labor organizations.

F Approximate number of employees in the ABU.

F Description of the bargaining unit.

F Other relevant facts.

PROCEDURE

I. PRELIMINARY CONFERENCE

o The first preliminary conference shall be scheduled within ten (10) days from the receipt of the petition.

o Within three (3) days from receipt: service of the notice of preliminary conference.

During the preliminary conference, the following are determined:

i. The bargaining unit to be represented;

ii. Contending labor unions;

iii. Possibility of consent election;

iv. Existence of the bars to certification election;

v. Such other matters as may be relevant to the final disposition of the case.

If the parties will agree to hold a consent election, the PCE will no longer be heard.

A. HEARINGS AND PLEADINGS o The Med-Arbiter may conduct as many hearings as

may be deemed necessary.

o BUT the conduct of the hearing cannot exceed fifteen (15) days from the date of the scheduled preliminary conference.

o During the same period, the contending labor unions may file such pleadings as may deem necessary.

PURPOSES OF HEARING

• Arriving at a stipulation of facts;

• Determining the parties to the election;

• Getting the parties to agree to a consent election;

• Asking clarificatory questions; and

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• Defining or limiting the issues.

EFFECT OF FAILURE TO APPEAR

o It is deemed as waiver of the right to be heard;

o But, if parties agree for meritorious reason, the scheduled conference may be cancelled.

B. DECISION ON THE PETITION

o The decision granting or denying the petition shall be issued within ten (10) days from the last hearing.

o IN UNORGANIZED ESTABLISHMENTS, no order or decision shall be issued by the Med-Arbiter within the freedom period.

Contents of Decision

a. Name of the employer or the establishment.

b. Description of the bargaining unit.

c. Statement that none of the grounds for dismissal exists.

d. Names of the contending labor unions, which shall appears as follows: petitioner union/s in the order in which their petitions were filed, forced intervener, and no union.

e. Directive upon the employer and the contending labor union to submit within ten (10) days from the receipt of the order, the certified list of employees in the bargaining unit, or the payrolls covering the members of the bargaining unit for the last three months prior to issuance of the order.

Grounds for Denial [Bars to Certification Election]

a. 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.

b. The petition was filed before or after the freedom period of a duly registered collective bargaining agreement.

c. The petition was filed within one (1) year from the entry of voluntary recognition or valid certification, consent or run-off elections and no appeal is pending.

d. A duly certified union has commenced and sustained negotiations with the employer or there exists a bargaining deadlock, which has been submitted to conciliation and mediation or has become the subject of a valid notice of strike or lockout.

e. In organized establishment, failure to submit twenty-five percent (25%) support requirement.

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Appeal of Order Denying or Granting the Petition o In an unorganized establishment, the order

granting the petition is not subject to appeal. Any issue may be raised by means of protest.

o Appeal should be verified under oath and consists of the memorandum of appeal stating the grounds relied upon by the appellant with the supporting argument and evidence

WHERE to File: Regional Office where the petition originated

If no appeal is filed within the ten (10)-day period, the Med-Arbiter shall enter the finality of the order or decision in the records of the case and cause the transmittal of the records of the petition to the Regional Director.

II. CONDUCT OF CERTIFICATION ELECTION

A. PRE-ELECTION CONFERENCE

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

• List of qualified voters;

• The date, time and place of the election;

• Names of watchers and representatives;

• The number and location of polling places or booths; and

• The number of ballots to be prepared.

• Mechanics and guidelines of the election.

WHO are Qualified to Vote

All employees who are members of the appropriate bargaining unit sought to be represented by the petitioner at the time of the certification or consent election shall be qualified to vote.

NOTE: Contested voters shall be allowed to vote; however, their votes shall be segregated and sealed in individual envelopes.

A DISMISSED EMPLOYEE whose dismissal is being contested in a pending case shall be allowed to vote.

PROBATIONARY employees have substantial interest in the selection of the bargaining representative, hence they are allowed to vote.

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INK (Iglesia ni Kristo) believers may vote.

POSTING of Notices

• At least 10 days prior; • Two (2) conspicuous places in the company

premises; • Date and time of election; • Description of bargaining units and the list of

Eligible voters and challenged voters; • Names of all contending unions.

NOTE: May be waived upon agreement of parties

B. ELECTION PROPER

Election shall be set during a regular business day of the company UNLESS otherwise agreed upon by the parties. It shall be held within company premises UNLESS circumstances otherwise require, as determined by the election officer.

ON-THE-SPOT Questions

The election officer may rule on any question relating to and rose during the conduct of election. In no case, however, shall the election officer rule on any of the grounds for challenge of votes.

CHALLENGE of Votes

An authorized representative of any of the contending parties may challenge a vote before it is deposited in the ballot box ONLY on any of the following grounds:

• There is no employer-employee relationship between the voter and the company; and

• The voter is not a member of the ABU which petitioner seeks to represent.

When a vote is properly challenged, the election officer shall place the ballot in an envelope, which shall be sealed in the presence of the voter and the representative of the parties.

PROTEST

Any party-in-interest may file a protest based on the conduct or mechanics of the election.

Protests not so raised are deemed waived. Protesting party must formalize its protest with the Med-Arbiter, with specific grounds, arguments and evidence therefore, within 5 days after the close of the proceedings.

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C. CANVASSING OF VOTES

Done in the presence of the representatives of the contending unions.

Upon completion, the election officer shall give each of the representatives a copy of the minutes of the election proceedings and results of the election.

The tally sheets and the ballots shall be sealed in an envelope, signed by the election officer and the representatives, and transmitted to the Med-Arbiter.

D. PROCLAMATION AND CERTIFICATION BY ELECTION OFFICER

Upon completion of the canvass and there being a valid election, the election officer shall proclaim and certify as winner the union which obtained a majority of the valid votes cast under any of the following conditions:

• No protest has been filed or, even if one is filed, the same was not perfected within the five (5)-day period for perfection of the protest;

• No challenge or eligibility issue was raised or, even if one was raised, the resolution of the same will not materially change the result.

E. PROCLAMATION AND CERTIFICATION BY MED-ARBITER

When a protest has been perfected or any challenged or eligibility issue has been raised which, if resolved, can materially change the result, only the Med-Arbiter can proclaim and certify the winner.

F. APPEAL AS TO RESULT OF ELECTION

The decision of the Med-Arbiter may be appealed to the Sec. Of Labor ONLY on the grounds of violation of Sec. 9, Rule XII, IR Bk V regarding challenging of votes or of serious errors of fact or law in the resolution of the protest.

REQUIRED VOTE

The union that obtains a majority of the valid votes cast shall be certified as the sole and exclusive bargaining agent of all the workers in the appropriate bargaining unit.

FAILURE OF ELECTION

The total number of valid votes cast in a certification or consent election is LESS than the majority of all the eligible employees in the bargaining unit.

NOTE: Failure of election shall not bar the filing of a petition for the immediate holding of another certification or consent election.

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EFFECT OF PETITION FOR CANCELLATION OF UNION REGISTRATION

Now, under ARTICLE 238-A (AS AMENDED BY RA 9431), the petition for cancellation of union registration shall no longer suspend the proceedings for Certification Election nor shall it prevents the filing of the same. The amendment effectively reversed the previous application of prejudicial question in Certification Election.

RATIONALE

A LLO is entitled to all the rights or privileges granted by law until its registration is cancelled or revoked with finality.

RUN-OFF ELECTION

Requisites

• A valid election took place because majority of the CBU members voted;

• The election presented at least three choices;

• Not one of the choices obtained the majority of the valid votes;

• The total votes of the unions is al least 50% of the votes cast;

• There is no unresolved challenge of voter or election protest;

WHO Participates

The participants are the members of the labor unions receiving the two highest numbers of votes.

CONSENT ELECTION

In hearing a petition for a CE, the Med-Arbiter may persuade the contending unions to agree to a consent election. If the unions do agree, the Med-Arbiter shall enter in the minutes of the hearing the fact of the agreement and then cause the immediate scheduling of the pre-election conference.

NOTE: The holding of a valid consent election, upon the intercession of the Med-Arbiter, bars the holding of a CE for one year.

Where no petition for a CE had been filed, but the parties themselves have agreed to hold consent election, the results of the election will NOT bar another CE, UNLESS the winning union had been extended voluntary recognition by the employer.

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CONSENT Election

CERTIFICATION Election

It is an agreed one, its purpose being merely to determine the issue of majority representation of all the workers in the

ABU

It is aimed at determining the sole and exclusive bargaining agent of all the employees in the ABU for the purpose of

collective bargaining

NOTE: Consent election is a separate and distinct process and has nothing to do with the import and effect of a Certification Election. Neither does it shorten the terms of an existing CBA nor entitle the participants thereof to immediately renegotiate an existing CBA although it does not preclude the workers from exercising their right to choose their sole and exclusive bargaining representative after the expiration of the 60-day freedom period.

MOTION FOR INHIBITION

No motion for inhibition of the Med-Arbiter shall be entertained from any part UNLESS the same is verified and based on specific grounds or circumstances directly related to or arising from the dispute under consideration.

MOTION FOR INTERVENTION

Form and contents shall be the same as that of a petition for CE.

WHO may File


F Any LLO other than the incumbent.

F The incumbent bargaining agent (FORCED INTERVENOR).


F Any LLO.

WHEN to file


F During the freedom period of the CBA.


F Anytime prior to the finality of the decision calling for CE.

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NOTE: In an unorganized establishment, the order of the Med-Arbiter resolving the motion shall not be subject to reconsideration or appeal.

XIV

DUTY TO BARGAIN

CONCEPT OF THE DUTY TO BARGAIN COLLECTIVELY

Collective Bargaining is the performance of the mutual obligation of the employer and the sole bargaining representative to meet promptly, expeditiously, and in good faith, agree on Wages, Hours of Work and Other terms and conditions of employment (WHO).

PHASES OF COLLECTIVE BARGAINING

• Legislative Phase

Negotiation and perfection of CBA.

• Executive Phase

CBA administration.

• Judicial Phase

Application and interpretation.

TWO SITUATIONS WHEN THE DUTY TO BARGAIN EXISTS

• When there is NO CBA (Art. 252)

F PURPOSES of the Meeting

~ Negotiate an agreement over WHO including proposals for adjusting grievances or questions arising under such agreement; and

~ to execute a CBA.

F LIMITATION

~ It does not compel any party:

1. to make an agreement, or 2. to make concession.

• When there is CBA (Art. 253)

F PURPOSES of the Meeting ~ Negotiate an agreement over WHO including proposals for adjusting

grievances or questions arising under such agreement; and

~ to execute a CBA, and

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~ to respect and allow the old CBA to have force and effect, if a new CBA is forged.

NOTE: Within 60 days before the CBA expires (freedom period), either party may notify the other in writing, that it desires to modify or terminate the agreement.

PROCEDURES

• Jurisdictional Preconditions

F Existence of certified EBR;

F Possession of majority representative status;

F Proof of majority representative status;

F Demand of Bargain collectively.

• Procedure Proper (Art. 250)

F Written notice upon the other party with statement of proposal.

F The other party must reply not later than 10 days.

F Conference not later than 10 days from notice, in case of differences.

F NCMB, if differences is not settled.

F Prohibition against commission of acts that impede or disrupt proceedings.

F Amicable settlement of disputes by NCMB.

NOTE: ARTICLE 250 applies in the absence of the parties’ own private collective

bargaining procedure.

UNFAIR LABOR PRACTICES RELATED TO DUTY TO BARGAIN COLLECTIVELY

• Refusal or Failure to Meet and Convene

The duty to meet and convene includes:

F To bargain with the certified EBR;

F To meet and confer with the EBR and to recognize the EBR as representative of all the employees in the CBU, even if not members of the CBR.

F To negotiate grievances even if not covered by the CBA.

ACTS Not Deemed Refusal to Bargain

F Adamant bargaining position in good faith;

F Refusal to bargain over demands for commission of ULP;

F Refusal to bargain during period of illegal strike; and

F Refusal to bargain on non-mandatory provisions.

There is NO VIOLATION of Duty to Bargain Where:

F No request for bargaining;

F Union seeks recognition of inappropriately large CBU;

F Union seeks to represent non-members of CBU;

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F Rank-and-file unit includes supervisors; and

F Demand for recognition and bargaining within certification year where the choice is no union.

F Unlawful bargaining demands

• Evasion of Mandatory Subjects of Bargaining MANDATORY SUBJECTS

F Wages and Hours of Work

F Other terms and conditions

F Other modes of compensation

F Work shifts

F Vacation and holidays

F Bonuses

F Pensions and retirement plans

F Seniority

F Transfers

F Lay-offs

F Workload

F Work rules and regulations

F Rent of company houses

F Union security agreements

An employer does not commit ULP by insisting to the point of a bargaining impasse, on the inclusion in a contract of a management prerogative clause, or a union discipline clause, or a no strike clause.

NON-MANDATORY SUBJECTS

An employer cannot insist, to the point of creating a bargaining impasse, on the scope of the statutory bargaining subjects, even if he acts in good faith.

DEADLOCK OR IMPASSE

A bargaining impasse over an issue exists where good faith bargaining on the part of the parties has failed to resolve the issue and there are no definite plans for further efforts to break the deadlocks.

DUTY TO BARGAIN WHEN THERE IS DEADLOCK

Deadlock does not mean the end of bargaining. It signals rather the need to continue the bargaining with the assistance of a third party as conciliator or arbitrator whose first aim is to get the parties back to the negotiating table and help them create a win-win solution.

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STRIKE OR LOCKOUT IN CASE OF DEADLOCK

ARTICLE 263 recognizes bargaining deadlock as a valid reason to declare a strike or lockout.

• Instances of Bad Faith in Bargaining

F Delay of negotiations.

F Imposing time limit on negotiations

• Surface Bargaining

F A sophisticated pretense in the form of apparent bargaining.

F It does not satisfy the statutory duty to bargain.

• Boulwarism

F Bargaining in bad faith in take it or leave it bargaining.

NOTE: Good faith or bad faith is an inference to be drawn from the facts and in largely a matter for the NLRB ’s expertise.

A fair criterion of good faith in collective bargaining requires that the parties involved deal with each other with open and fair mind, and sincerely endeavor to overcome obstacles or difficulties existing between them, to the end that employment relations may be established and obstruction to the free flow of commerce prevented.

• Gross Violations of the Economic Provisions of CBA

This violation occurs during the implementation stage. It creates a further obligation on the parties to adhere faithfully to the contract.

XV

COLLECTIVE BARGAINING AGREEMENT (CBA)

CONCEPT OF CBA

CBA refers to a contract executed upon request of either the employees or the EBR of the employees incorporating the agreement reached after negotiations with respect to wages, hours of work and all other terms, and conditions of employment, including proposals for adjusting grievances or questions under such agreement.

CBA is also a means of ensuring workers are entitled to participate in decision-making.

CONTENTS OF CBA

F Enumeration or Reservation of Management Rights

F Union Recognition and Security

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F Wage and Fringe Benefits and its Administration

F Physical Working Conditions

F Selected Personnel Management and Plant Operation Practices

F Grievance and Arbitration

F Duration of Contract

TERMS OF CBA

• Economic and Non-Economic Life: Three (3) Years.

• Political Life (Representation aspect: identity and majority status of the union that negotiated the CBA as EBR of the bargaining unit concerned): Five (5) Years.

• Automatic Retroaction: Any agreement entered within six (6) months from the date of expiry of the term shall retroact to the date immediately following such date.

If the agreement is beyond six (6) months, there would be an automatic retroaction. The date of the contract will be left to the parties.

• Automatic Renewal: An existing CBA is automatically renewed until the parties reached to an agreement.

RATIFICATION

The agreement negotiated by the employees bargaining agent should be ratified or approved by the majority of all workers in the majority of all workers in the bargaining unit, not just the members of the bargaining union.

Ratification AND its procedure are mandatory.

WHEN RATIFICATION NOT NEEDED

Ratification of the CBA by the employees in the bargaining unit is not needed when the CBA is a product of an arbitral award by appropriate government authority or by a voluntary arbitrator.

REGISTRATION

CBA, having been properly ratified, should be registered with the DOLE Regional Office that has jurisdiction over the establishment

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XVI

UNFAIR LABOR PRACTICES

CONCEPT

UNFAIR LABOR PRACTICES are:

(1) violations to the Constitutional rights of workers and employees to self-organization;

(2) 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) disruptions to industrial peace; and

(4) hindrance the promotion of healthy and stable labor management relations

and mutual respect [unstable labor management relations] (ARTICLE 247).

TWO ASPECTS OF ULP

• Civil Aspect

F Includes claims for actual, moral, exemplary, and other forms of damages,

attorney’s fees, and other affirmative relief.

F Under the jurisdiction of the Labor Arbiters, they are bound to resolve the civil aspect within 30 days from the time they are submitted for decision.

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

• Criminal Aspect

F No criminal prosecution may be instituted without a final judgment first obtained in the administrative proceeding finding that a ULP was committed.

F Prescriptive Period: One (1) year from accrual of ULP.

F During the pendency of the administrative proceeding, the running of the prescriptive period for the criminal aspect of ULP is interrupted.

F The final judgment in the administrative proceedings shall not be binding in the criminal prosecution nor considered as an evidence of guilt, it is a mere proof of compliance with procedural requirements.

AVAILABLE RELIEFS

• Preventive

Through a cease and desist order to stop a party from engaging further in ULP acts.

• Remedial

Consisting of affirmative relief (reinstatement, damages, and attorney’s fees).

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• Penal

Fine or imprisonment, or both.

REMEDIES IN ULP CASES

• Cease and Desist Order

• Affirmative Order (For example, fully reinstatement of a discharged employee.)

• Order to Bargain

• Disestablishment: order directing the employer to withdraw all recognition from the dominated labor union and to disestablish the same.

ELEMENTS NEEDED TO COMMIT ULP

• Existence of Employer – Employee Relationship;

• Act done is expressly defined in the Code as ULP (Arts. 248 and 249).

XVII

UNFAIR LABOR PRACTICES OF EMPLOYERS (Article 248)

GENERAL RULE

It is the prerogative of the company to promote, transfer or even demote its employees to other position when the interest of the company demands it.

EXCEPTION

F When there is a clear interference by the employer of the employee’s right to self-organization.

F The grant of profit sharing benefits to non-union members is not ULP; it is within the prerogative of the management.

F FORCED vacation leave without pay in view of the economic crisis is not ULP.

F An employer does not commit an ULP by discharging employees who engage in a slowdown. SLOWDOWN occurs when employees continue working on their own terms and rejecting the standards desired by the employer.

• FIRST ULP : “INTERFERENCE”

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

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Forms of Interference

F Persistent interrogation of employees to elicit information as to what had happened at union meetings and the identity of the active union employees.

F Outright and unconcealed intimidation.

F Espionage and surveillance or “spying on employees”.

F Economic inducements.

F A violation results from an employer ’s announcement of benefits prior to a representation election, where it is intended to induced the employee to vote against the union.

F The conferral of employee benefits for the employees to vote against the union while a representation election is pending.

Totality of Conduct Doctrine

The culpability of employer ’s remarks were to be evaluated not only on the basis of their implications, but against the background of and in conjunction with collateral circumstances.

Doctrine of Successor-in-Interest or Successor Employer

The new employer (being the successor-in-interest), who succeeds a previous employer with an existing CBA and who is a buyer in good faith, has no liability to the employees in continuing employment and the collective bargaining agreement because these contracts are in personam.

General Rule

Labor contractors are “in personam,” hence, doctrine of successor employer, in cases of closure and sale to another, is not applicable.

Exceptions

F If there is a written agreement between the employer and the employees to the effect that successor employer shall be held liable for previous employer ’s liabilities;

F Piercing the corporate veil.

Lockouts or Closure Amounting to ULP

A lockout, actual or threatened, as a means of dissuading the employees from exercising their rights is clearly ULP.

• SECOND ULP : “YELLOW DOG” CONTRACT

It is a contract that requires 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. It is also 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.

Contents of the Contract

F A representation by the employee that he is not a member of a labor union.

F A promise by the employee not to join a labor union.

F A promise by the employee that, upon joining a labor union, he will quit his employment.

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• THIRD ULP : “CONTRACTING OUT”

Contracting out is to control out services or functions being performed by union members so that the management could to interfere with, restrain, or coerce employees in the exercise of their right to self-organization.

Runaway Shop (ULP)

An industrial plant moved by its owners from one location to another to escape union regulation or state laws, but the term is also used to describe a plant removed to a new location in order to discriminate against employees at the old plant because of their union activities.

• FOURTH ULP : “COMPANY DOMINATION OF UNION”

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.

Forms

F Initiation of company union idea.

F Outright formation by the employer or his representatives.

F Employee formation on outright demand or influence by the employer.

F Managerially motivated formation by employees.

F Financial support to the union.

F Employer defrays the union expenses or pays the attorney who drafted the CBL of the union.

F Employers encouragement and assistance.

F Immediately granting the union exclusive recognition as a bargaining agent without determining whether the union represents the majority of employees.

F Supervisory assistance.

F Soliciting membership, permitting union activities during working time, or coercing employees to join the union by threats of dismissal or demotion.

• FIFTH ULP: “DISCRIMINATION FOR OR AGAINST UNIONISM”

This is an act of discrimination concerning wages, hours of work and other terms, and conditions of employment in order to encourage or discourage membership in any labor organization.

Discrimination by Blacklisting

A BLACKLIST is a list of persons marked out for special avoidance, antagonism, or enmity on the part of those who prepared the list, or those among whom it is intended to circulate.

Test of Discrimination

It is necessary that the underlying reason for the discharge be established.

Constructive Discharge

Where an employer prohibits employees from exercising their rights, on pain of discharge, and the employee quits as a result of the prohibition, a constructive discharge occurs, witch may be remedied in a ULP proceeding.

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Valid Discrimination

Where Management and Union enters into a CBA containing “union security

clause”.

Union Security

“Union security” is a generic term which is applied to and comprehends “closed shop”, “union shop”, “maintenance of membership” or any other form of agreement which imposes upon employees the obligation to acquire or retain union membership as a condition affecting employment.

KINDS of Union Security Agreements

F Closed Shop

Only union members can be hired and workers must remain as union members to retain employment.

F Union Shop

Non-members may be hired, but to retain employment must become union members after a certain period.

F Modified Union Shop

Employees who are not union members at the time of signing the contract need not join the union, but all workers hired thereafter must join.

F Maintenance of Membership Shop

No employee is compelled to join the union, but all present or future members, as a condition of employment, must remain in good standing in the union.

F Exclusive Bargaining Shop

The union is recognized as the exclusive bargaining agent for all employees whether union members or not.

F Bargaining for Member Only

A union is recognized as the bargaining agent only for its own members.

F Agency Shop Agreement or Maintenance of Treasury Shop

An agreement whereby employees must either join the union or pay to the union as exclusive bargaining agent a sum equal to that paid by the members.

NOTE: The above variations are opposite of OPEN SHOP, an arrangement which does not require union membership as a good condition of employment.

VALIDITY of Closed Shop Agreements

A closed-shop agreement is one whereby an employer binds himself to hire only members of the contracting union who must continue to remain members in good standing to keep their jobs. It is the most prized of unionism.

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Another reason for enforcing the closed-shop agreement is the principle of sanctity or inviolability of contracts guaranteed by the Constitution.

ADVANTAGES of Closed Shop Agreement

F It increases the strength and bargaining power of labor organizations.

F It prevents non-union workers from sharing in the benefits of the

union’s activities without also sharing its obligations.

F It prevents the weakening of labor organizations by discrimination against union members.

F It eliminates the lowering of standards caused by competition with non-union workers.

F It enables labor organizations effectively to enforce collective agreements.

F It creates harmonious relations between the employer and the employee.

DISADVANTAGES of Closed Shop Agreement

F It results in monopolistic domination of employment by labor organization.

F It interferes with the freedom of contract and personal liberty of the individual worker.

F It compels employers to discharge all non-union workers regardless of efficiency, length of service, and others.

F It facilitates the use of labor organizations by unscrupulous union leaders for the purpose of extortion, restrain of trade, and others.

F It denies to non-union workers equal opportunity for employment

F It enables union to charge exorbitant dues and initiation fees.

CLOSED SHOP shall not be Applicable to:

F Any employee who at the time the close shop agreement takes effect is a bona fide member of religious organization, which prohibits its members from joining union on religious grounds.

F Employees already in the service and already members of a labor union or unions other than the majority union at the time the closed shop agreement took effect.

F Supervisors ineligible under the Act to join the majority union because of the membership therein of employees under their supervision.

F Confidential employees who are excluded from the rank and file bargaining unit; and

F Employees excluded from the closed shop by express terms of the agreement.

DISMISSAL pursuant to a closed shop agreement must clearly appear in the

contract.

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• SIXTH ULP : “DISCRIMINATION BECAUSE OF TESTIMONY”

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

Indirect Discrimination

It shall be ULP for an employer to dismiss or discriminate against an employee for having filed charges or for having given or about to give testimony under said Act.

• SEVENTH ULP : “VIOLATION OF THE DUTY TO BARGAIN”

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

• EIGHTH ULP : “PAID NEGOTIATION”

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

• NINTH ULP : “VIOLATION OF THE CBA”

To violate a collective bargaining agreement. The violation must be GROSS in order to constitute as ULP.

XVIII

STRIKES AND LOCKOUTS

WORKERS shall have the right to engage in concerted activities for purposes of collective bargaining or for their mutual benefit and protection.

LIMITATIONS

• Must be peaceful; and

• In accordance with law.

STRIKE

It means any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute.

Characteristics of Strike

• There must be an established relationship between the strikers and the person is against whom the striker is called.

• The relationship must be one of the employer and employee.

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• The existence of a dispute between the parties and the utilization by labor of the weapon of concerted refusal to work as a means of persuading, or coercing compliance with the working men ’s demands.

• The contention advanced by the workers that although work ceases, the employment relation is deemed to continue albeit in a state of belligerent suspension.

• There is work stoppage, which stoppage is temporary.

• The work stoppage is done through concerted action of the employees.

• The striking group is a LLO and in case of bargaining deadlock, is the employees’ sole bargaining representative.

Kinds of Strike

• As to Extent

F General Strike

Extends over a whole community, province, state, or

country.

F Local / Particular Strike

One undertaken by workers in a particular enterprise, locality, or occupation, it usually involves only one union or only one industry.

• As to the Nature of the Act

F Strike Proper

F Sit-Down Strike

Occurs when a group of employees or other interested in obtaining a certain objective in a particular business forcibly take over possession of the property of such business, establish themselves within the plant, stop its production and refuse access to the owners or the others desiring to work.

F Slowdown

Willful reduction in the rate of work by a group of employees for the purpose of restricting the output of the employer

F Partial/Quickie Strike

Takes the form of intermittent, unannounced work stoppage, including slowdowns, unauthorized extension of rest periods and walkouts for portions of a shift or for entire shifts.

WILDCAT Strike—work stoppage that violates the labor contract and is not authorized by the union.

• As to Degree of Employee Interest

F Primary Strike

One declared by the employees who have a direct and immediate interest, whether economic or otherwise, in the subject of the dispute, which exist between them and their employer.

F Secondary Strike

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Coercive measure adopted by the workers against an employer connected by product or employment with alleged unfair labor condition or practice.

F Sympathetic Strike

One in which the striking employees have no demands or grievances of their own, but strike for the purpose of directly or indirectly aiding others, without direct relation to the advancement of the interest of the strikers.

WELGA NG BAYAN—In the nature of a general strike which is but an extended sympathetic strike; it is work stoppage affecting numerous employers including a particular employer who has no dispute with his employees regarding their terms and conditions of employment.

• As to Purpose / Nature of Employee Interest

F Economic Strike

This is a strike held to force wage or concessions from the employer, which he is not required by law to grant.

The CONVERSION Doctrine

A strike that may start as an economic strike and then as it progresses, becomes an ULP, or vice versa.

NOTE: Strikers who are permanently replaced during the economic phase of the strike are not entitled to immediate reinstatement, while strikers replaced after the date of conversion are entitle to reinstatement.

F ULP Strike

Called against the unfair labor practices of the employer, usually for making him desist from further committing such practice.

A strike that is provoked or prolonged by a refusal to bargain or a discriminatory discharge or any sort of ULP by the employer.

ULP Strike in Good Faith

If the management performed acts, which under the circumstances, the strikers believed were ULP on the part of the management, although they were not, the court ruled that the strike cannot be held illegal. However, the union’s belief needs some rational basis.

TWO Tests in Determining the Existence of ULP Strike

OBJECTIVE, when the strike is declared in protest of ULP that is found to have been actually committed;

SUBJECTIVE, when a strike is declared in protest of what the union believed to be ULP committed by the management, and the circumstances warranted such belief in good faith, although found subsequently as not committed.

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Grounds for Strike

• Collective Bargaining Deadlock;

• ULP of the Employer;

Protection of Strike

• It is generally not subject to labor injunction.

• Employees may not be discriminated against merely because they have exercised the right to strike.

• The use of strike-breakers is prohibited.

STRIKE–BREAKER - Is a person who obstructs, impedes, violence,

coercion, threats or intimidation any peaceful picketing by employees during any labor controversy affecting wages, hours or conditions of work in the exercise of right of self-organization or collective bargaining

Mere participation in a strike does not sever the employment relationship.

Role of the Police

The involvement of the AFP / PNP shall be limited to maintenance of peace and order, enforcement of laws and legal orders of duly constituted authorities and the performance of the specific functions as may be provide by law.

Factors Affecting the Legality of a Strike

• STATUTORY PROHIBITION

Government employees have the right to organize, but they do not have the right to strike. A strike held by them would be an illegal strike that violates a legal prohibition.

No strike or lockout may be declared on grounds involving inter-union and intra-union disputes or an issue brought to voluntary or compulsory arbitration.

• PROCEDURAL REQUIREMENTS

F Notice of Strike

Notice of strike (or lockout), with the required contents, should be filed with the DOLE, specifically the regional branch of NCMB, with a copy furnished to employer or the union, as the case may be.

WHO Can File a Notice of Strike?

~ If the reason is bargaining deadlock, only the bargaining union has the legal right to file a notice of strike.

~ If the reason is ULP, only a LLO (assuming there is no recognized or certified bargaining agent).

F Cooling – Off Period

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It is a time gap to cool-off tempers between the filing of notice and the actual execution of strike (or lockout).

THE Cooling – Off Period is:

~ In case of BARGAINING DEADLOCK: 30 Days

~ In case of ULP: 15 Days

UNION BUSTING

In the face of UNION BUSTING where the union’s existence is threatened, the cooling – off period need NOT be observed.

UNION Busting Exists When:

~ The union officers are being dismissed;

~ Those officers are duly elected in accordance with the union CBL;

~ The existence of the union is threatened.

F Strike (or Lockout) Vote

Before a strike [or a lockout] may actually be started, a strike or lockout vote should be taken by secret balloting, with 24 – hour prior notice to NCMB.

The DECISION to declare a strike requires the secret – ballot approval of majority (50% + 1) of the total union membership in the bargaining unit concerned.

A LOCKOUT needs the secret ballot concurrence of majority of the directors or partners.

F Strike (or Lockout) Vote Report

The result of the strike vote (or lockout vote) should be reported to the NCMB at least seven (7) days before the intended strike or

lockout, subject to the cooling – off period.

AFTER the strike vote is taken, seven (7) days must pass before the union can actually commence the strike. A strike held within the seven (7) – day waiting period is plainly illegal.

COMPUTATION

Seven days are added to the 15-day or 30-day period.

F Declaration of Strike / Lockout

If the dispute remains unsettled after the lapse of the cooling – off period and the seven (7) – day reporting period, the labor union may strike or the employer may lockout its workers.

NOTE: Failure to comply with the mandatory procedural requirements is fatal to the legality of a strike / lockout.

• UNLAWFUL PURPOSE

The law does not expressly ban strikers except when enjoined against by the court; but if a striker is declared for a trivial, unjust, or unreasonable purpose, or if it is carried out through unlawful means, the law will not

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sanction it and the court will declare it illegal, with the adverse consequences to the strikers.

• MEANS AND METHODS

Limitations

No person engaged in picketing shall:

F Commit any act of violence, coercion or intimidation, or

F Obstruct the free ingress to or egress from the employer ’s premises for lawful purposes, or

F Obstruct public thorough fares.

• PENALTY

Article 289, of the Revised Penal Code provides: “The penalty of arresto mayor and a fine not exceeding 300 pesos shall be imposed upon any person who, for the purpose of organizing, maintaining or preventing coalitions of capital or labor, strike of laborers or lockouts of employers shall employ violence or threats in such a degree as to compel or force the laborers or exercise of their industry or work, if the act shall not constitute a more serious offense in accordance with the provision of the Code”.

NOTE: EVEN if the purpose of a strike is valid, the strike may be held invalid where the means employed are illegal.

• INJUNCTION

No temporary or permanent injunction or restraining order in any case involving or growing out of labor disputes shall be issued by any court or other entity, except as otherwise provided in Article 218 and 264 of this Code (Art. 254).

Article 218 (e) empowers the NLRC to enjoin or restrain any actual or threatened commission of any or all prohibited or unlawful acts to require the performance of a particular act in any labor dispute, or in cases involving “national interest” as provided in Article 263 (g).

Automatic Injunction

Injunction in “national interest” cases is expressly allowed, in fact, an injunction may be issued automatically, that is even if none of the parties asks for it.

Assumption of Jurisdiction and Certification to the NLRC

When, in his opinion there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labor may assume jurisdictio n over the dispute and decide it or certify the same to the NLRC for compulsory arbitration.

Effect of Assumption or Certification

Such assumption or certification has the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order. If the one has already taken place at the time of assumption or certification, all striking or locked out employees shall immediately return to work and the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout.

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Striking workers must cease and/or desist from all acts that tend to, or undermine the authority of the Secretary of Labor, once the assumption and/or certification order is issued. They cannot ignore return-to-work orders, citing ULP on the pert of the company, to justify their actions.

If it is an economic strike, the strikers are bound to the provision but if it is a ULP strike, the strikers are not bound to such provision.

LOCKOUT

Means the temporary refusal of any employer to furnish work because of an industrial or labor dispute.

Grounds for Lockout

• Collective Bargaining Deadlock

• ULP Act of a Union

Requisites

• Notice of intention to declare a lockout has been filed with the DOLE;

• At least 30 days has elapsed since the filing of notice before lockout is declared;

• An impasse had resulted in the negotiations; and

• Lockout is not discriminatory.

NOTE: Lockout is valid where, in the course of a labor dispute, it is undertaken as a defensive weapon, or in pursuance of the employer ’s interest.

Unlawful Lockout

Where it is declared in order to defeat organizational and bargaining right employees.

PROHIBITED ACTIVITIES

• 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 having filed the required notice or without the necessity strike or lockout vote first having been obtained and reported.

• No strike or lockout shall be declared after assumption of jurisdiction by President or the Sec of Labor or after certification or submission of the dispute to compulsory / voluntary arbitration or during the pendency of cases involving the same grounds for the strike or lockout.

• No person shall obstruct, impede or interfere with by force, violence, coercion, threats or intimidation any peaceful picketing by employees during any controversy or in the exercise of the right to self-organization or collective bargain or shall aid or abet such obstruction or interference.

• No employer shall use or employ any strikebreaker, nor shall any person be employed as a strikebreaker.

• No public official or employee, including officers and personnel of the AFP or the PNP, 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 or other criminal acts occur therein. Nothing herein shall be interpreted to prevent any public officer from taking any measure necessary to

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maintain peace and order, protect life and property, and/or enforce the law and legal order.

• No person engaged in picketing shall commit any act of violence, coercion or intimidation or obstruct the free ingress or egress from the employer ’s premises for lawful purposes, or obstruct public through fares.

PENALTY FOR VIOLATION

Any person violating the above provisions shall be punished by a fine of not less than P1,000.00 nor more than P10,000.00 and/or imprisonment for not less than 3 months. Nor more than 3 years, or both such fine and imprisonment, at the discretion of the court.

Prosecution under Article 272 of the LCP shall preclude prosecution for the same act under the RRC, and vice versa.

CONSEQUENCES OF STRIKE AND LOCKOUT

• Strikers’ Retain their Employment

Strikers remain as employees while they are on strike; the effects of employment are merely suspended during that time. When the strike is over, the employees go back to work and the effects of employer – employee relationship are resumed.

• Striker’s Lose their Employment

IF Striker is a UNION MEMBER, there must be proof that he committed illegal acts during a strike. Mere participation of an ordinary worker in al illegal strike cannot be a ground for termination of his or her employment.

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

IF Striker is a UNION OFFICER, s/he may be terminated from work when s/he knowingly participates in an illegal strike, or when s/he commits an illegal act during the strike.

NOTE: The penalty of dismissal for participating in an illegal strike is limited ONLY to the union leaders. Penalty may be scaled down to suspension.

WHO Dismisses Illegal Strikers?

The law grants the employer the option of declaring a union officer who participated in an illegal strike as having lost his employment.

• Claim of Back Wages in an Economic Strike

The strikers are NOT entitled to back wages on the principle that “a fair day’s wage” accrues only for a “fair day ’s labor” (no work, no pay policy).

Exception:

F The strike is legal;

F There is an unconditional offer to return to work; and

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F There is a refusal on the part of the employer to accept strikers to work.

In an ULP Strike

Strikers who were discriminatorily dismissed OR affected by the ULP are ENTITLED to back wages. The law on illegal dismissal applies.

In a LOCKOUT

Any worker whose employment has been terminated as a consequence of an unlawful lockout shall be ENTITLED to reinstatement with full back wages.

EMPLOYER’S RIGHT TO HIRE

REPLACEMENTS DURING STRIKE OR REINSTATEMENT OF STRIKERS

During the pendency of an economic strike, the employer may hire replacements on a permanent basis and is not bound to discharge such permanent replacement in the event that strikers resume to work.

While replacement may also be hired by the employer to take the places left vacant by employees engaged in an ULP strike, such replacements are not permanent and their employer is under the duty to dismiss them as soon as the strikers request reinstatement in their previous positions.

IMPROVED OFFER OR REDUCED OFFER BALLOTING (ART. 265)

The DOLE shall conduct a referendum by secret balloting on the improved offer of the employer on or before the 30th day of strike. When at least a majority of the union members vote to accept the improved offer, the striking workers shall immediately return to work and the employer shall thereupon readmit them upon the signing of the agreement.

In cases of lockout, the DOLE shall also conduct a referendum by secret balloting on the reduced offer of the union on or before the 30th day of the lockout. When at least a majority of the board of directors or trustees or the partners holding the controlling interests in the case of a partnership vote to accept the reduced offer, the workers shall immediately return to work and the employer shall thereupon readmit them upon the signing of the agreement.

PICKETING

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

Limitations

Picketing conducted as to amount to a nuisance is unlawful. Picketing maybe considered as a nuisance if it constitutes an obstruction to the free use of property, so as substantially to interfere with the comfortable enjoyment of life or property, or if it

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constitutes an unlawful obstruction to the free passage or use, in the customary manner of a street.

Picketing carried on with intimidation, threats, coercion, or force is unlawful however laudable the strikers’ motive or purpose, and regardless of whether the intimidated persons are their employers, co-employees, or customers.

Vandalism and acts of a less terroristic nature that are designed to cause physical discomfort to the employer ’s customers are also unlawful.

Untruthful picketing is unlawful even though its purpose is valid. False statements are not constitutionally protected free speech.

The PUBLIC EASEMENT OF WAY and PASSAGE permits of pickets to parade in front of or near the picketed establishment. As members of the general public, they have the right, as one of passage – a pedestrian right. It does not create the additional right of squatting or assembly on this portion of the employer ’s land.

OTHER CONCERTED ACTIVITIES

• Collective Letter

Constitutes an informal action participated in by at least two employees for “mutual aid or protection” in regard to their interests.

• Publicity

Members of a labor union may make known the facts of a labor dispute by sign, handbill, or newspaper advertisement as a legitimate means of economic coercion.

NOTE: It is unlawful for a labor organization in a radio broadcast to express its honest opinion as to the fairness of an employer toward organized labor and to advise the public and friends of labor not to patronize him. HOWEVER, the use of loud speakers in front of a picketed place of business has been condemned as form of intimidation.

• Boycott

An attempt, by arousing a fear of loss, to coerce others, against their will to withhold from one denominated “unfriendly to labor” their beneficial business intercourse.

Kinds of Boycott

F Primary Boycott

Applied directly and alone to the offending person by withdrawing from him all business relations on the part of the organization that initiated the boycott.

F Secondary Boycott

A combination not merely to refrain from dealing with a person, or to advise or by peaceable means persuade his customers to refrain, but to exercise coercive pressure upon such customers, actual or prospective, in order to cause them to withhold or withdraw patronage from him through fear of loss or damage to themselves should they deal with him.

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Means and Methods

Boycott maybe lawful or unlawful depending on the means and methods employed and the ends intended to be accomplished. Its lawfulness may also depend upon whether it is used against the industrial antagonist directly or against an outsider because of his influence on or connection with the industrial antagonist.

Maybe in the form of a refusal of a labor union to allow its members to handle products of the employer or to work on materials from non – union shops, or to work on a job upon which a contract or with whom they are at variance in an existing labor dispute.

• Slowdown

Method by which one’s employees without seeking a complete stoppage of work, retard production and distribution in an effort to compel compliance by the employer with the labor demands made upon him.

ARREST AND DETENTION

EXCEPT on the grounds of national security and public peace, or in case of commission of crime, no union members or union organizers may be arrested or detained for union activities with previous consultation with the Secretary of Labor.

XIX

FOREIGN INVOLVEMENT IN TRADE UNION ACTIVITIES

PROHIBITION AGAINST ALIENS

ALL ALIENS, natural or juridical, as well as foreign organizations are strictly prohibited from engaging directly or indirectly in all forms of trade union activities without prejudice to normal contracts between Philippine Labor Unions and recognized international labor centers

EXCEPTIONS

• Aliens working in the country with valid permits issued by the DOLE may exercise the right to self-organization and join or assist labor organizations of their own choosing for purposes of collective bargaining.

• Said aliens are nationals of a country which grants the same or similar rights to Filipino Workers.

REGULATION OF FOREIGN ASSISTANCE

No foreign individual, organization or entity may give any donations, grants or other forms of assistance, in cash or in kind, directly or indirectly, to any labor organization, group of workers or any auxiliary thereof, such as cooperatives, credit unions and institutions

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engaged in research, education, or communication, in relation to trade union activities without prior permission by the Secretary of Labor.

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

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

“TRADE UNION ACTIVITIES”

The phrase shall mean:

• Organization, formation and administration of labor organizations;

• Negotiation and administration of CBA;

• All forms of concerted union activities;

• Organizing, managing, or assisting union conventions, meeting rallies, referenda, teach – ins, seminars, conferences and institutes;

• Any form of participation or involvement in representation proceedings, representation proceeding, representation elections, consent elections, union elections; and

• Other activities or actions analogous to the foregoing.

Documents

Labor Relations Reviewer