labor.raw.22013

I press toward the mark for the prize of the high calling of God in Christ Jesus. - Philippians 3:14

Fundamental Constitutional Provision on Labor

Sec. 3, Art. XIII – The State shall afford full protection to

labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all.

It shall guarantee the rights of all workers to self‐organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision‐making processes affecting their rights and benefits as may be provided by law.

The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace.

The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth.

What are the essential elements in determining whether one is engaged in recruitment/placement? It must be shown that: 1. The accused gave the complainant the distinct impression that she had the power or ability to send the complainant for work, 2. Such that the latter was convinced to part with his money in order to be so employed. (People v. Goce, G.R. No. 113161, Aug. 29, 1995)

Who is an overseas Filipino worker (OFW)? A person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a citizen or on

board a vessel navigating the foreign seas other than a government ship used for military or non‐commercial purposes or on an installation located offshore or on the high seas; to be used interchangeably with migrant worker. (Sec.2, R.A. 10022 amending R.A. 8042)

What is the theory of imputed knowledge? A rule in insurance law that any information material to the transaction, either possessed by the agent at the time of the transaction or acquired by him before its completion, is deemed to be the knowledge of the principal, at least so far as the transaction is concerned, even though in fact the knowledge is not communicated to the principal at all. (Leonor v. Filipinas Compania, 48 OG 243)

Distinguish a license from authority.A license is issued by DOLE authorizing a person or entity to operate a private employment agency. An authority, on the other hand, is a document issued by the DOLE authorizing a person or association to engage in recruitment and placement activities as a private recruitment entity.

What is the ban on direct-hiring? General Rule: An employer may only hire Filipino worker for overseas employment through POEA or entities authorized by DOLE. Exception: Direct hiring by: 1. International organizations 2. Name hires 3. Members of the diplomatic organizations 4. Other Employers as may be allowed by DOLE.

What is the rule on remittance of foreign exchange earnings? General Rule: It shall be mandatory for all OFWs to remit a portion of their foreign exchange earnings to their families, dependents, and/or beneficiaries ranging from 50% ‐ 80% depending on the worker’s kind of job. (Rule VIII, Book III, POEA Rules)

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Exceptions: 1. The worker’s immediate family members, beneficiaries and dependents are residing with him abroad 2. Immigrants and Filipino professionals and employees working with the UN agencies or specialized bodies 3. Filipino servicemen working in U.S. military installations. (Resolution No. 1-83, Inter-Agency Committee for Implementation of E.O. 857)

Who are the employees that are covered by the conditions of employment? General Rule: It applies to all Ee’s in all establishments. Exceptions: 1. Gov’t employees 2. Managerial employees 3. Field personnel 4. The employers family members who depend on him for support 5. Domestic helpers and persons in the personal service of another, and 6. Workers who are paid by results as determined under DOLE regulations

When is travel time considered working time? 1. Travel from home to work General Rule: Normal travel from home to work is not working time. Exceptions: a. Emergency call outside his regular working hours where he is required to travel to his regular place of business or some other work site. b. Done through a conveyance provided by the employer (Er). c. Done under the supervision and control of the Er. d. Done under vexing and dangerous circumstance. 2. Travel that is all in a day’s work – time spent in travel as part of the employees (Ees) principal activity 3. Travel away from home General Rule:

a. Travel that requires an overnight stay on the part of the Ee when it cuts across the Ees workday is clearly working time. b. The time is not only hours worked on regular workdays but also during corresponding working hours on non‐working days. Outside of these regular working hours, travel away from home is not considered working time.

Exception: During meal period or when Ee is permitted to sleep in adequate facilities furnished by the Er.

What is salary ceiling method? A method of minimum wage adjustment whereby the wage adjustment is applied to Ees receiving a certain denominated ceiling. In other words, workers already being paid more than the existing minimum wage are also to be given a wage increase. (ECOP v. NWCP, G.R. No. 96169, Sep. 24, 1991)

What is the wage rate of an apprentice? Start at not less than 75% of the statutory minimum wage for the 1st 6 months (except OJT); thereafter, shall be paid in full minimum wage, including the full COLA. Note: Apprenticeship programs shall be primarily voluntary.

What is the status of learners who have been allowed or suffered work during the first 2 months, if training is terminated by the Er before the end of the stipulated period through no fault of the learner? They are deemed regular employees. (Sec. 4, Rule VII, Book II, IRR)

What is the rule in wage deductions? General Rule: It is strictly prohibited Exceptions: 1. Deductions under Art. 113 for insurance premiums 2. Union dues in cases where the right of the worker or his union to check off has been recognized by the employer (Er) or authorized

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in writing by the individual worker concerned (Art. 113). Art. 241(o) provides that special assessments may be validly checked‐off provided that there is an individual written authorization duly signed by every employee (Ee). 3. Deductions for SSS, Medicare and Pag‐ibig premiums 4. Taxes withheld pursuant to the Tax Code 5. Deductions under Art. 114 for loss or damage to tools, materials or equipments 6. Deductions made with the written authorization of the Ee for payment to a third person. (Sec 13, Rule VIII, Book III of the IRR) 7. Deductions as disciplinary measures for habitual tardiness (Opinion dated March 10, 1975 of the SLE) 8. Agency fees under Art. 248(e) 9. Deductions for value of meals and facilities freely agreed upon 10. In case where the Ee is indebted to the Er where such indebtedness has become due and demandable. (Art. 1706, Civil Code) 11. In court awards, wages may be subject of execution or attachment, but only for debts incurred for food, shelter, clothing, and medical attendance. (Art. 1703, Civil Code) 12. Salary deduction of a member of a legally established cooperative. (R.A. 6938, Art. 59

What are the elements of Wage Distortion? 1. An existing hierarchy of positions with corresponding salary rates. 2. A significant change or increase in the salary rate of a lower pay class without a corresponding increase in the salary rate of a higher one; 3. The elimination of the distinction between the 2 groups or classes; and 4. The WD exists in the same region of the country. (Alliance Trade Unions v. NLRC, G.R. No. 140689, Feb. 17, 2004)

Are piece-rate workers entitled to the full benefit of the yearly 5 day SIL? It depends.

1. Yes. Provided: a. They are working inside the premises of the employer (Er) and b. Under the direct supervision of the Er.

2. No. Provided:

a. They are working outside the premises of the Er b. Hours spent in the performance of work cannot be ascertained with reasonable certainty c. The are not under the direct supervision of the Er

What are the requirements in order that maternity benefits may be claimed? 1. There is childbirth, abortion or miscarriage 2. She has paid at least 3 monthly contributions

What is the leave for victims of violence against women or otherwise known as battered woman leave? A female employee who is a victim of violence (physical, sexual, or psychological) is entitled to a paid leave of 10 days in addition to other paid leaves. (R.A. 9262, Anti ‐ VAWC Act)

What is P.D. 851?A law requiring all employers to pay their employees a 13th month pay which is equivalent to 1/12 of the total basic salary earned by an employee within a calendar year.

What is 13th month pay or its equivalent? Additional income based on wage required by P.D. 851 Requiring all Employers to pay their Employees a 13th month pay which is equivalent to 1/12 of the total basic salary earned by an employee (Ee) within a calendar year.

What is R.A 8972?It grants leave benefits to solo parents to enable him/her to perform parental duties and responsibilities where physical presence is required.

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What is the no-spouse employment policy? General Rule: 1. Policy banning spouses from working in the same company. 2. May not facially violate Art. 136 of the LC but it creates a disproportionate effect and the only way it could pass judicial scrutiny is by showing that it is reasonable despite the discriminatory albeit disproportionate effect.

Exception: Bona fide occupational qualification rule (BFOQ)

What is the BFOQ rule? There must be a finding of any BFOQ to justify an Ers no spouse rule. There must be a compelling business necessity for which no alternative exist other than the discriminating practice. To justify a BFOQ the employer must prove two factors: 1. That the employment qualification is reasonably related to the essential operation of the job involved; and 2. That there is a factual basis for believing that all or substantially all persons meeting the qualification would be unable to properly perform the duties of the job. (Star Paper v. Simbol, G.R. No. 164774, April 12, 2006)

What are the exceptions in the employment of minors?A. Below 15 yrs. Old 1. The child works directly under the sole responsibility of his parents, or guardians who employ members of his family, subject to the following conditions: a. Employment does not endanger the child’s safety, health and morals b. Employment does not impair the child’s normal dev’t c. Er‐parent or legal guardian provides the child with the primary and/or secondary education prescribed by the Dept. of Education 2. The child’s employment or participation in public entertainment or information through

cinema, theater, radio or television is essential provided: a. Employment contract is concluded by the child’s parents or legal guardian, b. With the express agreement of the child concerned, if possible, and c. The approval of DOLE, the following must be complied with: i. The employment does not involve advertisement or commercials promoting alcoholic beverages, intoxicating drinks, tobacco and its by‐products or exhibiting violence ii. there is a written contract approved by DOLE iii. the conditions provided in the first instance are met. B. Above 15 but below 18 – may be employed in any non‐hazardous work C. Above 18 – no prohibition

What is the rule regarding the issuance of work certificates/ permits for children at least 15 but below 18 years of age? The issuance of a DOLE Certificate to youth aged 15 to below 18 years of age is not required by law. No employer shall deny opportunity to any such youth applying for employment merely on the basis of lack of work permit or certificate of eligibility for employment. Any young person aged 15 to below 18 years of age may present copy of this DOLE advisory to any employer, job provider, government authority, or his/her representative when seeking employment or anytime during employment (DOLE Department Advisory No. 01‐08)

What is the two-tiered test? 1. The putative Er’s power to control the Ee with respect to the means and methods by which the work is to be accomplished; and 2. The underlying economic realities of the activity or relationship. Note: This two‐tiered test would provide us with a framework of analysis, which would take into consideration the totality of circumstances surrounding the true nature of the relationship between the parties. This is especially

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appropriate in this case where there is no written agreement or terms of reference to base the relationship on and due to the complexity of the relationship based on the various positions and responsibilities given to the worker over the period of the latter’s employment. (Francisco vs. NLRC, G.R. No. 170087, Aug. 31, 2006)

Is double or successive probation allowed? No. The evil sought to be prevented is to discourage scheming employers from using the system of double or successive probation to circumvent the mandate of the law on regularization and make it easier for them to dismiss their employees. (Holiday Inn Manila v. NLRC, G.R. No. 109114, Sep. 14, 2003)

Distinguish between job contracting and labor only contractingIn job contracting, the contractor has substantial capital or investment while in labor only contracting there is no substantial capital or investment. Job contracting is permissible while labor only contracting is prohibited by law. Lastly, in job contracting the liability is limited while in labor only contracting the liability extends to all those provided under the labor standards law.

What is the doctrine of incompatibility? Where the employee has done something that is contrary or incompatible with the faithful performance of his duties, his employer has a just cause for terminating his employment. (Manila Chauffeur’s League v. Bachrach Motor Co., G.R. No. L-47071, June 17, 1940 )

What are the authorized causes of termination by the employer (Er)? 1. Installation of labor‐saving devices (automation/robotics) 2. Redundancy 3. Reorganization4. Retrenchment

5. Closing or cessation of operation of the establishment or undertaking6. Disease

What is the “last in first out (LIFO)” rule? It applies in the termination of employment in the line of work. What is contemplated in the LIFO rule is that when there are two or more Ees occupying the same position in the company affected by the retrenchment program, the last one employed will necessarily be the first one to go. (Maya Farms Ees’ Organization v. NLRC, G.R. No. 106256, Dec. 28, 1994)

What is the difference between redundancy and retrenchment? In redundancy, company has no financial problems, unlike in retrenchment where the company will suffer financial losses.

What are the forms of reinstatement? 1. Actual or physical – the employee (Ee) is admitted back to work 2. Payroll – the Ee is merely reinstated in the payroll

What is constructive dismissal? An involuntary resignation resorted to when: 1. continued employment becomes impossible, unreasonable, or unlikely 2. there is a demotion in rank or diminution in pay or 3. clear discrimination, insensibility or disdain by an Er becomes unbearable to the Ee. (Leonardo v. NLRC, G.R. No.125303, June 16, 2000) 4. Note: There is no formal dismissal. The Ee is placed in a situation by the Er such that his continued employment has become unbearable. Abandonment is incompatible with constructive dismissal.

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What are the limitations on management prerogative? The following are the limitations on the exercise of management prerogative: 1.) It must be exercised in good faith; 2.) It must not be tainted with unfair labor practice; 3.) The exercise of management prerogative must be within the limitations set by law; 4.) It must also be within the limitations set by the Collective Bargaining Agreement; and 5.) The exercise must be consistent with the principles of fair play and justice.

Can bonus be demanded? General Rule: Bonus is not demandable as a matter of right. It is a management prerogative given in addition to what is ordinarily received by or strictly due to recipient. (Producers Bank of the Phil. v. NLRC, G.R. No. 100701, March 28, 2001) Exceptions: Given for a long period of time

1. Consistent and deliberate – Er continued giving benefit without any condition imposed for its payment 2. Er knew he was not required to give benefit 3. Nature of benefit is not dependent on profit 4. Made part of the wage or compensation agreed and stated in the employment contract.

Rules on Marriage between Employees of competitor-employers Is a company policy prohibiting marriage between co-workers valid? There must be a finding of a bona fide occupational qualification (BFOQ) to justify an Er’s No Spouse Rule. There must be a compelling business necessity for which no alternative exists other than the discriminating practice. (Star Paper vs. Simbol, G.R. No. 164774, April 12, 2006)

Who are excluded from R.A. 8291 or the GSIS Law?

Members of the Armed Forces of the Philippines and the Philippine National Police, subject to the condition that they must settle first their financial obligation with the GSIS, and Contractuals who have no employer and employee relationship with the agencies they serve.

What is the Limited Portability Act?An Act Insituting the limited portability

scheme in the social security insurance systems by totalizing the workers’ creditable services or contributions in each of the systems

Right to self-organization Workers organize as a union or some

other form of association (registered or unregistered)

Effect of registration with the State: Acquisition of legally demandable rights, e.g. right to demand collective bargaining

Organization must have rules and mechanisms that respect member rights

No employer influence or interference (See Article 249, Labor Code)

Who may exercise the right to self-organization?

All persons employed in commercial, industrial and in religious, charitable, medical or educational institutions (profit or non-profit)

Includes the right to◦ Form◦ Join◦ Assist

Labor organizations of their own choosing

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Who cannot form, join or assist labor organizations?

a. Managerial employeesb. Confidential employeesc. Government employees, including

GOCCs with original charterd. employees who are MEMBERS of a

cooperativee. employees of International

Organizations or Specialized Agencies which are registered with the United Nations and which enjoy diplomatic immunity

f. Aliens without valid working permits; or Aliens with valid working permits but are nationals of a country which do not grant Filipinos to exercise the right of self-organization and to join or assist labor organizations.

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

What are the factors in determining the appropriate bargaining unit?

1. Globe doctrine- the desires of all the employees are relevant to the determination of the appropriate bargaining unit.

2. Community of interest rule- the substantial and mutuality interests factor.

3. Prior collective bargaining history4. Employment status, such as:

a. Temporaryb. Seasonalc. Probationary employee

What are the methods of determining the bargaining unit?

1. Certification election- refers to the process of determining through secret ballot sole the sole and exclusive bargaining representative of the employees in an appropriate bargaining unit, for purposes of collective bargaining.

2. Consent election.- refers to the election voluntarily agreed upon by the parties, with or without the intervention of the of th4e Department of Labor and Employment, to determine the issue of majority representation of all the workers in the appropriate collective bargaining unit.

3. Voluntary recognition of bargaining agent is the free and voluntary act of the employer of extending and conferring full recognition to a union as the sole and exclusive bargaining representative of the employees in the appropriate bargaining unit, for purposes of collective bargaining.

4. Run-off election.-refers to an election between the receiving the two (2) highest number of votes when a certification election which provides for three (3) more choices res4lts in no choice receiving a majority of the valid votes cast; provided, that the total number of votes for all contending unions is at least fifty percent 50% union of the number of votes cast.

5. Re-run election

What are the requirements of voluntary recognition?

1. It is possible only in an UNORGANIZED establishments;

2. Only ONE UNION is asking for recognition; and

3. The union voluntarily recognized should be the MAJORITY union as indicated by the fact that members of the bargaining

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unit did not object to the projected recognition.

What are the requisites for certification election in organized establishments?

1. that a petition questioning the majority status of the incumbent bargaining agent is filed before the DOLE within 60-day freedom period;

2. that such petition is verified; and 3. that the petition is supported by

the written consent of at least twenty-five (25%) of all employees in the bargaining unit.

What is the distinction between consent election and certification election?Consent election is a separate and distinct process and has nothing to do with the important and effort of a certification election in the sense that the purpose of the latter is to determine the sole and exclusive bargaining agent of all the employees in the bargaining unit.

What is affiliation?The independent union’s act of entering into an agreement of affiliation with a federation or national union, or

When may a labor union disaffiliate?General Rule: A labor union may disaffiliate from the mother union to form an independent union only during the 60-day freedom period immediately preceding the expiration of the CBA.Exception: Even before the onset of the freedom period, disaffiliation may still be carried out, but such disaffiliation must be effected by a majority of the union member in the bargaining unit.

What is the Contract-Bar Rule?The Bureau of Labor Relations shall not entertain any petition for certification election

or any other action which may disturb the administration of duly registered existing collective bargaining agreements affecting the parties.

What is the Substitutionary Doctrine?It is a principle in labor law which states that even during the effectivity of a collective bargaining agreement executed between the employer and employees thru their agent, the employees can change said agent BUT THE CONTRACT CONTINUES TO BIND THEM UP TO ITS EXPIRATION DATE. The principle applies to a situation when there occurs a shift in employees’ union allegiance after the execution of a collective bargaining contract.

What are union dues?Regular monthly contribution paid by the members to the union in exchange for the benefits given to them by the CBA and to finance the activities of the union in representing them.

What are the requirements for validity of agency fees?

1. The employees is part of the bargaining unit;

2. He is not a member of the union; and3. He partook of the benefits of the CBA.Note: Individual written authorization is not necessary for the collection of agency fees.

What are the requirements for special assessments?

1. There must be a written resolution2. The resolution must have been

approved by a majority of all the members; and

3. The approval must be at a general membership meeting duly called for that purpose

4. The secretary of the organization shall record the minutes of the meeting.

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

What is the duty to bargain collectively where no CBA exists?

The performance of a mutual obligation:1. To meet, convene, and confer promptly

and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages, hours of work and all other terms and conditions of employment, including proposals for adjusting any grievances or questions arising under such agreement; and

2. To execute a contract incorporating such agreements if requested by either party.

What is the duty to bargain collectively where CBA exists?When there is a collective bargaining agreement, the duty to bargain collectively shall also mean that neither party shall terminate or modify such agreement during its lifetime. However, either party can serve a written notice to terminate or modify the agreement at least sixty (60) days prior to its expiration date. It shall be the duty of both parties to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60-day period and/or until a new agreement is reached by the parties.

What is Collective Bargaining Agreement?

It refers to the negotiated contract between a legitimate labor organization and the employer concerning wages, hours of work and all other terms and conditions of employment in a bargaining unit. The CBA is deemed the law between the parties during its lifetime. Itys provisions are construed liberally.

What are the mandatory provisions of CBA?The mandatory provisions of the CBA

are:1. Grievance machinery2. Voluntary arbitration

What is grievance machinery?“Grievance machinery” refers to the mechanism for the adjustment and resolution of grievances arising from the interpretation or implementation of a CBA and those and those arising from interpretation or enforcement of company personnel policies. It is a part of the continuing process of collective bargaining.

What is grievance procedure?“Grievance procedure” refers to the internal rules of procedure established by the parties in their CBA with voluntary arbitration as the 6terminal step, which are intended to resolve all issue arising from the implementation and interpretation of their CBA. It is refers to the system of grievance settlement at the plant level as provided in the collective bargaining agreement. It is usually consists of successive steps starting at the level of the complainant and his immediate supervisor and ending, when necessary, at the level of the top union and company officials.

Note: All grievances submitted to the grievance machinery which are not settled within seven (7) calendar days from the date of their submission shall automatically be referred to voluntary arbitration prescribed in the CBA.

What is voluntary arbitration?

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It is a contractual proceeding where parties to a dispute select a judge of their own choice and by consent submit their controversy to him for determination.

What is the scope of the Labor Management Council?It deals with the employer on matters affecting the employee’s rights, benefits and welfare.

What is the duration of the CBA for economic and non-economic provisions?Provisions with respect to representation shall be for a term of 5 years which means that no petition questioning the majority status of the incumbent bargaining agent shall be entertained by DOLE and no certification election shall be conducted outside of the 60-day freedom period.

All other provisions except representation shall be renegotiated not later that three (3) years after its execution.

What is the Freedom Period?It refers to the last sixty (60) days of the lifetime of a collective bargaining agreement immediately prior to its expiration is called the “freedom period”. It is so called because it is only the time when the law allows the parties to serve notice to terminate, alter or modify the existing agreement. It is also the time when the majority status of the bargaining union or agent may be challenged by another union appropriate petition for certification election.

What is the Automatic Renewal Clause?It refers to the time of the freedom period, the employer shall continue to recognize the majority status of the incumbent bargaining agent where not petition for certification election is filed.

What is a Union Security Clause?It is a stipulation in the CBA whereby the management recognizes, that the membership of employees in the union which negotiated

said should be maintained and continued as a condition for employment or retention of employment. The obvious purpose is to safeguard and ensure the continued existence of the union.

What are the kinds of Union Security Clause?(1) Closed shop agreement; (2) Maintenance of membership

agreement; (3) Union shop agreement; (4) Modified union shop agreement; (5) Exclusive bargaining agreement; (6) Bargaining for members only

agreement; (7) Agency shop agreement; (8) Preferential hiring agreement.

What is the concept of unfair labor practice?It violates the right of workers to self-organization, is inimical to the legitimate interest of both labor and management, including their right to bargain collective and otherwise deal with each other in an atmosphere of freedom and mutual respect, disrupts industrial peace and hinders the promotion of healthy and stable labor-management relations.

What are the natures of unfair labor practice?1. It is a criminal offense against the State.2. It violates civil rights of both labor and

management.3. It violates the constitutional right of

workers to self-organization.4. It is inimical to the legitimate interests

of both labor and management.5. It disrupts industrial peace6. It hinders the promotion of healthy and

stable labor-management relations and mutual respect.

What are the unfair labor practices in CBA?1. Bargaining in bad faith2. Refusal to bargain3. Individual bargaining

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4. Blue sky bargaining5. Surface bargaining

What are the ULP of employers?1. To interfere with, restrain or coerce

employees in the exercise of their right to self organization;

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

3. To contract out services or functions being performed by union when such will interfere with, restrain coerce employees in the exercise of their rights to self—organizations;

4. 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;

5. To discriminate in regard to wages, hours of work and other terms and conditions of employment in order to encourage or discourage membership in any labor organization. Nothing in this Code or in any other law shall stop the parties in requiring membership in a recognized collective bargaining agent as a condition for employment, except those employees who are already members of another union at the time of the signing of the collective bargaining agreement. Employees of an appropriate bargaining unit who are not already members of the recognized collective bargaining agent may be assessed a reasonable fee equivalent to the dues and other fees paid by members of the recognized collective bargaining agent,, if such non-union members accept the benefits under the collective bargaining agreement: Provided, that the individual

authorization required under Article 242, paragraph (0) of this shall not apply to the non-members of the recognized collective bargaining agent.

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

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

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

9. To violate a collective bargaining agreement.

What are the ULP of Labor Organizations?1. To restrain or coerce employees in the

exercise of their right to self-organization. However, a labor organization shall have the right to prescribe its own rules with respect to the acquisition or retention of membership.

2. To cause or attempt an employer to discriminate against an employee with respect to whom membership in such organizations has been denied or terminate an employee on any other than the usual terms and conditions under which membership or continuation of membership is made available to other members.

3. To violate the duty, or refuse to bargain collectively with the employer, provided it is the representative of the employees.

4. To cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other things of value, in the nature of an exaction, for services which are not performed or not to be performed,

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including the demand for fee for union negotiations;

5. To ask for or accept negotiations or attorney’s fees from part of the settlement of any issue in collective bargaining or any other dispute; or

6. To violate collective bargaining agreement.

What is the Totality of Conduct Doctrine?Expressions of opinion by an employer, may be held to be constitutive of unfair labor practice because of the circumstances under which they were uttered, the history of the particular employer’s labor relations or anti-union bias or because of their connection with an established collateral plan of coercion or interference. An expression which might be permissibly uttered by one employer, might, in the mouth of more hostile employer, be deemed improper and consequently actionable as an unfair labor practice.

What is the Yellow Dog Contract?A yellow dog contract is an agreement which exacts from workers as a condition of employment, that they shall not join or belong to a labor organization, or attempt to organized one, during their period of employment or that they shall withdraw therefrom, in case they are already members of a labor organizations.

What are the forms of concerted activities?1. Strike.- Any temporary stoppage of

work by the concerted action of the employees as a result of an industrial or labor dispute. It consists not only of concerted work stoppages but also showdown, mass, leaves, sitdowns, attempts to damage, destroy or sabotage plant equipment and facilities and similar activities.

2. Lockout.- Any temporary refusal of an employer to furnish work as a result of an industrial or labor dispute.

3. Industrial or labor dispute.- It includes any controversy or matter concerning terms and condition of employment or the association or representation of persons in negotiating, fixing maintaining, changing or arranging the terms and conditions of employment,, regardless of whether the disputants stand in the proximate relation of employer and employee.

What are forms of strikes?1. Legal strike-one called for a valid

purpose and conducted through means allowed by law.

2. Illegal strike-one staged for a purpose not recognized by law, or, if for a valid purpose, conducted through means not sanctioned by law.

3. Economic strike-one declared to demand higher wages, overtime pay, holiday pay, vacation pay, etc. It is one declared the purpose of forcing wage or other concessions from the employer which he is not required by law to grant.

4. ULP strike-one called to protest against the employer’s acts of unfair labor practice enumerated in Article 248 of the Labor Code as amended, including gross violation of the collective bargaining agreement (CBA) and union-busting.

5. Slow down strike-one stage without the workers quitting t heir work but by merely slackening or by reducing their normal work output.

6. Wildcat strike-one declared and staged without the majority approval of the recognized bargaining agent.

7. Sit down strike- one where the workers stop working but do not leave their place of work.

What are the requisites of a lawful strike?

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1. Valid and final factual grounda. Valid grounds: (1) CBA Deadlock;

and (2) ULP b. No other grounds are allowed

except the two mentioned above.

2. Notice of strike or notice of lockouta. When to file notice:

ULP: 15 days from intended date of strike/lockoutCBA Deadlock: 30 days from the intended date thereof

a. Parties who may file notice: Any certification union, in case of strike; and employer in case of lockout.

b. Where to file notice-NCMB

3. Strike vote or lockout votea. Majority approval of strike or

lockout is required b. Strike vote still necessary even in

case of union-busting.

4. Strike vote report or lockout vote reporta. When to submit strike or lockout

vote report-at lest seven (7) days prior to strike lockout, as the case may be.

b. Effect of none-submission of strike vote NCMB, DOLE-strike or lockout is illegal

c. Effect on seven-day waiting period if filed within cooling-off period.

d. Strike vote report in case of union-busting-still necessary, it being mandatory unlike the cooling-off period which may be dispensed with.

5. Cooling off-period a. General rule: CBA Deadlock-30

days; ULP: 15 daysb. Exceptions in the case of union-

busting: Cooling-off period need not be complied with.

c. When Cooling-off periods starts-from the time the notice of strike/lockout is filed with NCMB, DOLE.

6. 7-day waiting period or strike bana. Cooling-off period and waiting and

waiting period distinguished. Waiting period is counted from the time of submission of strike vote report to NCMB; Cooling-off period is counted from the filing of Notice of Strike/Lockout with NCMB.

b. Purpose of the seven-day waiting period- To ensure that the strike votes vote was indeed taken and that the majority approved of it.

c. Deficiency of even one-day of the seven-day strike ban (or cooling-off period) is fatal. Hence, the strike is illegal.

Summary of principles governing strikes:1. A strike or lockout is illegal if any of

the legal requirements (enumerated above) is not complied with. Procedural requirements are mandatory.

2. A strike or lockout is illegal if it is based on non-strikeable issues (e.g., inter-union or intra-union disputes or wage distortion).

3. A strike or lockout is illegal if the issues involved are already subject of compulsory or voluntary arbitration or conciliation or the steps of grievance machinery are not exhausted.

4. A strike or lockout is illegal if unlawful means were employed or prohibited acts practices were committed (e.g., Use of force, violence, threats, coercion, etc.; Barricades, blockades, and obstruction of ingress [entrance] or

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egress from [exit] the company premises).

5. A strike or lockout is illegal if the notice of strike or notice of lockout in already converted into a preventive mediation case.

6. A strike or lockout is illegal if staged in violation of the ”Not Strike, No Lockout” cause in the collective bargaining agreement.

7. A strike or lockout is illegal if staged in violation of temporary restraining order or an injunction or assumption or certification order.

8. A strike is illegal if staged by a minority union.

9. A strike or lockout is illegal if conducted for unlawful purpose/s (e.g., Strike to compel dismissal of employee; Union-recognition-strike)

What are the tests in determining the legality of strikes?

1. Purpose Test (bargaining deadlock and/or unfair labor practice)

2. Compliance with Procedural and substantive requirements of law

3. Notice of strike4. 30/15-day cooling-off period5. Strike vote6. 7 – day strike ban7. Means employed test - A strike

may be legal at its inception but eventually be declared illegal if the strike is accompanied by violence which violence is widespread, pervasive and adopted as a matter of policy and not merely violence which is sporadic which normally occur in a strike area.

What are the requisites for a valid picketing?

1. It should be exercised by the workers with dues respect for the rights of others.

2. It must not be accompanied by violence, coercion, or intimidation.

3. It must not obstruct or close points of entry or exit in company premises.

What are the conditions for a valid exercise of the assumption of jurisdiction authority?

1. Both parties must have requested the DOLE Secretary to assume jurisdiction over the labor dispute; or

2. After a conference called by the DOLE Secretary on the propriety of the issuance of the Assumption or Certification Order, motu proprio or upon request or petition by either party to the labor dispute.

Note: The DOLE Secretary may either:1. Assume jurisdiction and

decide it; or2. Certify the same to the

NLRC for compulsory arbitration.

What are the legal implications of an Assumption Order of the Secretary?Under Art. 263(g) of the Labor Code, such assumption shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption order. If one had already taken place at the time of assumption, all striking or lockout employees shall immediately return to work and the employer shall immediately resume operations and re-admit all workers under the same terms and conditions prevailing before the strike or lockout. The Secretary of Labor and Employment may seek the assistance of law enforcement agencies to ensure compliance with this provision as well as he may issue to enforce the same. The mere

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issuance of an assumption order by the Secretary of Labor automatically carries with it a return to work order, even if the directive to return to work is not expressly stated in the assumption order. Those who violate the foregoing shall be subject to disciplinary action or even criminal prosecution.

Under Art. 264 of the Labor Code, no strike or lockout shall be declared after the assumption of jurisdiction by the Secretary.

Power of Sec. of Labor is plenary and discretionary. (St. Luke’s Medical Center vs. Torres, 29 June 1993)

What are the implications of the defiance of return to work order in a strike case which is under the assumption of jurisdiction?In the case of Telefunken Semiconductors Employees Union FFW v. CA, G.R. No. 143013-14, December 18, 2000, the Supreme Court held that the strike of the Union cannot be viewed as anything but illegal for having been staged in open and knowing defiance of the assumption and return-to-work orders. The necessary consequence thereof are also detailed by the Supreme Court in its various rulings. In Marcopper Mining Corp. v. Brillantes (254 SCRA 595), the High Tribunal stated in no uncertain terms that -

“by staging a strike after the assumption of jurisdiction or certification for arbitration, workers forfeited their right to be readmitted to work, having abandoned their employment, and so could be validly replaced.”

Who are the strikers who are not entitled to reinstatement?

1. Union officers who knowingly participate in an illegal strike; and

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

Note: Those union members who joined an illegal strike but have not committed any illegal act shall be reinstated but without any backwages.

What are considered illegal strikes?1. SIT-DOWN STRIKE - is characterized by a temporary work stoppage of workers who thereupon seize or occupy property of the employer or refuse to vacate the premises of the employer. ILLEGAL- amounts to a criminal act because the employees trespass on the premises of the employer.2. WILDCAT STRIKE- is a work stoppage that violates the labor contract and is not authorized by the union. ILLEGAL- It is not valid because it fails to comply with certain requirements of the law, to wit: notice of strike, vote, and report on strike vote.3. SYMPATHETIC STRIKES- are work stoppages of workers of one company to make common cause with other strikers of other companies, without demands or grievances of their own against the employer. ILLEGAL - because there is no labor dispute between the workers who are joining the strikers and the latter’s employer.4. SECONDARY STRIKES- are work stoppages of workers of one company to exert pressure on their employer so that the latter will in turn bring pressure upon the employer of another company with whom another union has a labor dispute. ILLEGAL- because there is no labor dispute involved.5. “WELGA NG BAYAN” ILLEGAL because it is a political strike and therefore there is neither a

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bargaining deadlock nor any ULP. It is a political rally.

Discuss the liability of union officers.Where the acts of labor unions and their members are unlawful and tortuous, the officers participating in such unlawful actions are liable for the resulting damages irrespective of the fact that they were acting in behalf of the union. Officers of labor unions are also liable for unlawful and tortuous acts done pursuant to a conspiracy to which unions are a party.

What is the liability of members of labor organizations?Members of labor unions are not subject to civil liability for the acts of the unions or its officers as such, unless it is shown that they personally authorized or participated in the particular acts, and the liability of a member of a labor union for the wrongful acts of his associates done without his knowledge or approval is not to be inferred from mere membership in the union. However, members of a labor union are liable for damages resulting from particular unlawful acts which they participated in or which are performed at their direction or pursuant to a delegation of authority by them.

What is “Innocent Bystander Rule”?An innocent bystander”, who seeks to enjoin a labor strike, must satisfy the court that aside from the grounds specified in Rule 58 of the Rules of Court, it is entirely different from, without any connection whatsoever to, either party to the dispute and, therefore, its interests are totally foreign to the context thereof (MFS Tire and Rubber, Inc. vs. CA).

What are the JUST CAUSES FOR DISMISSAL?

1. Serious MISCONDUCT OR WILLFUL DISOBEDIENCE by the employee of the lawful orders of his employer or representative in connection with his work; Misconduct- transgression of some

established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error in judgment. (Dept. of Labor Manual, Sec. 4353.01)

2. Gross and habitual NEGLECT by the employee of his duties;

3. FRAUD OR WILLFUL BREACH by the employee of the trust reposed in him by his employer or duly organized representative Fraud must be committed against the

employer or his representative and in connection with the employee’s work. (Dept. of Labor Manual, Sec. 4353.01 [3])

4. Commission of a CRIME OR OFFENSE BY THE EMPLOYEE AGAINST THE PERSON OF HIS EMPLOYER or any immediate member of his family or his duly authorized representative; and Conviction or prosecution is not

required.5. Other causes ANALOGOUS to the

foregoing. A cause must be due to the voluntary

or willful act or omission of the employee. (Nadura v. Benguet Consolidated, G.R. No. L-17780)

Which of the following has only exclusive and original jurisdiction?a. Secretary of Labor and Employmentb. Labor Arbitersc. The National Labor Relations Commission

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d. Secretary of the Bureau of Labor Relations

The NLRC exercises original jurisdiction over the following cases, except:a. Injunction in strikes or lockouts under Article 264 of the Labor Code.b. Certified labor disputes causing or likely to cause a strike or lockout in an industry

indispensable to the national interest, certified to it by the Secretary of Labor and Employment for compulsory arbitration.

c. Cases decided by the DOLE Regional Directors or his duly authorized Hearing Officers (under Article 129) involving recovery of wages, simple money claims and other benefits not exceeding P5,000 and not accompanied by claim for reinstatement.

d. Injunction in ordinary labor disputes to enjoin or restrain any actual or threatened commission of any or all prohibited or unlawful acts or to require the performance of a particular act in any labor dispute which, if not restrained or performed forthwith, may cause grave or irreparable damage to any party.

The following falls within the jurisdiction of the labor arbiter, except:a. Cases that workers may file involving wages, rates of pay, hours of work and other terms and

conditions of employment, if accompanied with claim for reinstatement; b. Counter-Claims of employers against their employees;

Money claims arising out of employer-employee 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 as provided by Section 10 of RA 8042, as amended by RA 10022;

c. Injunction in strikes or lockouts under Article 264 of the Labor Code.d. Wage distortion disputes in unorganized establishments not voluntarily settled by the parties

pursuant to Republic Act No. 6727

The following are the requisites in order for the DOLE Regional Director to assume jurisdiction over claims for recovery of wages, except

a. the claim must arise from employer-employee relationship;b. the aggregate money claim of each employee does not exceed P5,000.00.c. the claimant does not seek reinstatement; d. posting of cash or surety bond, if judgment involves monetary award.

Which of the following cases does not fall within the appellate jurisdiction of the DOLE Secretary?a. Orders issued by the duly authorized representative of the Secretary of Labor and Employment

under Article 128 (Visitorial and Enforcement Power) may be appealed to the latter.b. Decisions of the Med-Arbiter in certification election cases are appealable to the DOLE

Secretary.c. All unresolved grievances arising from the interpretation and implementation of the productivity

incentive programs under RA 6791d. Denial of application for union registration or cancellation of union registration originally

rendered by the Bureau of Labor Relations (BLR) may be appealed to the Secretary of Labor and Employment.

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Which of the following cases does the Bureau of Labor Relations exercise exclusive and original jurisdiction?

a. Intra-union conflictsb. Inter-union conflictsc. Other related labor relations disputesd. All of the above

All of the following are the requisites of Rule of Forum on Non Conveniens, except:a. That the Philippine court has or is likely to have power to enforce its decisionb. That the Philippine court is one to which the parties may conveniently resort toc. That the foreign government grants the same rights to Filipino citizens abroadd. That the Philippine court is in a position to make an intelligent decision as to the law and the

facts

The following are the administrative functions of the Bureau of Labor Relations, except:a. Maintenance of a file of Collective Bargaining Agreementsb. Maintenance of a file of all settlement or final decisions of the Secretary of Laborc. Regulation of registration of the labor unionsd. Keeping of a registry of labor unions

What is the nature of the proceedings before a Voluntary Arbitrator?a. Administrativeb. Non-litigiousc. Disciplinaryd. Civil

How many days does the grievance machinery have to settle the issue before it shall be submitted for voluntary arbitration?

a. 15 daysb. 30 daysc. 5 daysd. 7 days

The decision of the Voluntary Arbitrator shall be appealable to the Court of Appeals via:a. Petition for Certiorari under Rule 65b. Appeal by Certiorari c. Petition for Review d. Petition

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THE BARRISTERS’ CLUB OFFICERS

Chancellor: ABBYGAILE T. GONZALES

Vice Chancellor: ROMEL L. BASILAN

Secretary: JESSA ALYSSA G. REYES

Treasurer: MILDRED P. AMBROS

PRO: ROBYN B. DELA PENA

PRO: AARON JAMES E. CO

Business Manager: RUDDY ALLEN N. YEE

Business Manager: LESLIE D. RAGUINDIN

SSG Representative: ANNE LUCILLE B. RUIZ

Ex-Officio: RONA B. ESTRADA

Adviser: ATTY. ISAGANI G. CALDERON

Dean, College of Law: ATTY. REYNALDO U. AGRANZAMENDEZ


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Documents

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