Sun Tzu’s “The Art of War”

The Story ofJovert and the 27 Janitors

FVR Skills and Services Exponent, Inc. (SKILLEX), Fulgencio V. Rana, and

Monina R. Burgos

-versus-

Jovert Seva, et. al. (and 27 other workers)

G.R. No. 200857

October 22, 2014

Supreme Court of the Philippines

LABOR ARBITER

-WINNERS-

SKILLEX et. al.

-AWARDS-

Valid Dismissal.*

BUT workers were awarded money claims worth at least PhP100,000.

National Labor Relations Commission

-WINNERS-

Jovert Seva and 27 other workers.

-AWARDS-

1. Regularization.

2. Separation Pay in lieu of Reinstatement.

3. Backwages.

4. Money claims of PhP100,000+

Court of Appeals

-WINNERS-

Jovert Seva and 27 other workers.

-AWARDS-1. Regularization.

2. Separation Pay in lieu of Reinstatement.

3. Backwages.

4. Money claims of PhP100,000+

5. Rana and Burgos solidarily liable!!!

Supreme Court

-WINNERS-

Jovert Seva and 27 other workers.

-AWARDS-1. Regularization.

2. Separation Pay in lieu of Reinstatement.

3. Backwages.

4. Money claims of PhP100,000+

BUT Rana and Burgos ABSOLVED!!!

Conflict Resolution Scenarios

“The greatest victory is that which requires no battle.”

- Sun Tzu, The Art of

War

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+63 917 821 6848

apollo.sangalang@lawyer.com

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UNIVERSITY LEGAL COUNSEL

University of the Philippines

EXECUTIVE DIRECTOR

National Labor Relations Commission

CHIEF LEGISLATIVE OFFICER

Senate of the Philippines

Labor Law Made Easyhttps://www.facebook.com/legalcoach

Free consultation!

Free learning!

Free links!

IT’S OK TO INTERUPT ME

IF YOU HAVE QUESTIONS.

This seminar is INTERACTIVE.

And yes, I mean it!

Disclaimer• No lawyer-client relationship.

• Consult your own legal counsel.

• Remember: legal opinions differ.

• Respect the sub judice rule.

• Avoid conflicts of interest.

“If you know your enemy and know yourself, you need not fear the results of a thousand battles.

If you know yourself but not the enemy, for every victory gained you will also suffer a defeat.

If you know neither the enemy nor yourself, you will succumb in every battle.”

-Sun Tzu, The Art of War

Do you need a Department for Employers?

Do you need an Employers’ Code?

WHY?

Anatomy of a Labor Case

Evolution of Work Arrangement

Capitalism

Capitalist Model

Communism

Capitalist Exploitation

Revolution!!!

Socialist Model

Democratic Model

Labor Law Revolution!

Tripartite Model

Shared Responsibility Model

What is Social Justice?

Elements of Labor Law

Rule of Law

Employer’s Rights• Law on Ownership (Civil Code):

“The owner has the right to enjoy and dispose of a thing, without other limitations other than those established by law.” (Art. 428, Civil Code).

• A “thing” can be:– Physical Capital (e.g. land, building, equipment)– Financial Capital (e.g. financing)– Intellectual Capital (e.g. business model)– Human Capital (e.g. organization)

Employer’s Rights• Law on Contracts (Civil Code):

“The contracting parties may establish such stipulations, clauses, terms and conditions as may be deemed convenient, provided they are not contrary to law, morals, good customs, public order, or public policy.” (Art. 1306, Civil Code)

• Employment is a contract.• Contract is the basis of Company Policies.

Employer’s Power Equation

Employer’s Power• Law on Management Prerogative:

“The State recognizes the indispensable role of the private sector, encourages private enterprises, and provides incentives to needed investments.” (Sec. 20, Art. II, Constitution)

“The State…x x x… recognizing the right of enterprises to reasonable returns on investments, and to expansion and growth.” (Sec. 3, Art. XIII, Constitution)

Management Prerogative• Right to hire employees of their

(employers’) own choice;

• Right to fire (and discipline) them;

• Right to determine their compensation and benefits; and

• Right to control their employees.

4-Fold Test of Employment• Right to hire employees of their

(employers’) own choice;

• Right to fire (and discipline) them;

• Right to determine their compensation and benefits; and

• Right to control their employees.

Control Test• Right to control the workers on the:

– Final outcome or ultimate result; and on the– Means, methods and manner of achieving

or accomplishing those outcomes and results.

• Control includes:– Work structure, transfers, assignments, schedules,

job descriptions, uniforms, IDs, DTRs, etc., etc.

Control Test• It’s your FIRST LINE OF DEFENSE.

• No Control = No Employment Relation.

• No Employment Relation = No Labor Case!

No Employment RelationsIndependent Contractors Job Contractors

Consultants Freelancers

Agents Industrial Partners

Corporate Officers Cooperative Members

Volunteers Academic Interns

Anatomy of a Labor Case

3 Kinds of Win Scenarios• Win – Lose

• Compromise (or Half-baked Win)

• Win – Win (Mindset)–“Think Win-Win” by Stephen Covey

3 Ways To Win• By “Hook” or by “Crook”.

• Out Last. Out Wit. Out Pay!

• WIN with INtegrity (“WIN-wIN”).

Why WIN with INtegrity?• I can’t compartmentalize my life.

• I can’t justify the means with the end.

• I reaped what I’ve sown.

• I almost lost my soul.

What’s WIN-wIN?“… what king would go to war against another king without first sitting down with his counselors to discuss whether his army of 10,000 could defeat the 20,000 soldiers marching against him? And if he can’t, he will send a delegation to discuss terms of peace while the enemy is still far away.”

- Jesus Christ (Luke 14:31-32 NLT)

1. Is it the TRUTH?2. Is it FAIR to all

concerned?3. Will it build

GOODWILL and BETTER FRIENDSHIPS?

4. Will it be BENEFICIAL to all concerned?

How to have Win-WIN?

D.O.C.U.M.E.N.T. © 2013

GOOD FAITH

How to D.O.C.U.M.E.N.T. © 2013

D ocumentation, documentation, documentation!!!

O pen-mindedness.

C larity.

U nderstand Law Law principles.

M aster HR.

E mbrace best practices.

N egotiate, negotiate, negotiate!!!

T ake advice only from experts.

Documentation X 3

• Pre-Employment Documentation.

• Employment Documentation.

• Pre-Termination & Post Employment Documentation.

Open-Mindedness

• Be tolerant with your employees.

• Be receptive to new ideas and possibilities.

• Be accepting of the outcome.

Clarity

• Clarity in written communication.

• Clarity in oral communication and action.

• Clarity in purpose and objective.

Understand ER/LR

• Understand:

1. that ER/LR is a “Game”.

2. the “Rules of the Game” of ER/LR.

3. the “other aspects” of the ER/LR Game.

Master HR

• ER/LR is essentially HR.

• HR is exemplified by MR.

• MR is enhanced by GR.

Embrace Best Practices

• Good Practices.

• Better Practices.

• Best Practices.

Negotiate X 3

• Negotiate before a labor dispute.

• Negotiate during a labor dispute.

• Negotiate after a labor dispute.

Take advice only from experts

• Licensed or seasoned experts.

• Local labor law experts.

• Practical and trust-worthy experts.

Documentation X 3

• Pre-Employment Documentation.

• Employment Documentation.

• Pre-Termination & Post Employment Documentation.

Open-Mindedness

• Be tolerant with your employees.

• Be receptive to new ideas and possibilities.

• Be accepting of the outcome.

Clarity

• Clarity in written communication.

• Clarity in oral communication and action.

• Clarity in purpose and objective.

Understand ER/LR

• Understand:

1. that ER/LR is a “Game”.

2. the “Rules of the Game” of ER/LR.

3. the “other aspects” of the ER/LR Game.

Master HR

• ER/LR is essentially HR.

• HR is exemplified by MR.

• MR is enhanced by GR.

Embrace Best Practices

• Good Practices.

• Better Practices.

• Best Practices.

Negotiate X 3

• Negotiate before a labor dispute.

• Negotiate during a labor dispute.

• Negotiate after a labor dispute.

Take advice only from experts

• Licensed or seasoned experts.

• Local labor law experts.

• Practical and trust-worthy experts.

How to D.O.C.U.M.E.N.T. © 2013

D ocumentation, documentation, documentation!!!

O pen-mindedness.

C larity.

U nderstand Labor Law principles.

M aster HR.

E mbrace best practices.

N egotiate, negotiate, negotiate!!!

T ake advice only from experts.

24 Rules of the Game

• R1: Comply with labor laws!

• R2: Ignorance of the law isn’t an excuse!

• R3: Stay focused on your business and management goals!

24 Rules of the Game• R4: Know your strengths as business

owner or company management!

• R5: Design your relationship with your employees through written contracts!

• R6: Use management prerogative wisely by way of written company policies!

24 Rules of the Game• R7: Know that you have the upper

hand. So be magnanimous about it!

• R8: Accept that your employees are the underdogs!

• R9: Labor laws only to level the playing field. Enjoy the challenge!

24 Rules of the Game

• R10: Problem employees are merely obstacles, not opponents!

• R11: All doubts favor your employees. Make sure there are no doubts!

• R12: You have the burden of proof. Silence means you’re guilty!

24 Rules of the Game• R13: Your rights are not absolute. But

they’re enough; so maximize them!

• R14: Laws, principles of justice and equity, and public policies are higher than contracts!

• R15: Bad faith will be punished!

24 Rules of the Game• R16: Good faith will be rewarded.

Document it if you can!

• R17: Compromise is encouraged. But quitclaims are frowned upon. Beware of the distinctions!

• R18: Out-of-court settlements can be dangerous. Settle in court!

24 Rules of the Game

• R19: Discipline and terminate your employees based on substantial evidence!

• R20: Observe administrative due process! And be strict about it!

• R21: Managers are employees too. So be careful who you trust!

24 Rules of the Game

• R22: Strictly follow DOLE and NLRC procedures. Better safe than sorry!

• R23: Voluntary modes of dispute resolution are your best allies!

• R24: Labor officials are humans too. Put yourself in their shoes!

WHAT IS THE BEST GAME RULE?

GOLDEN

RULE

This Golden Rule?

HE WHO HAS THE GOLD

RULES!

Best Game Rule?

The GOLDEN RULE:

“Love your employees as yourself…

and WIN with INtegrity!”

So, do you still need a Department for Employers?

Do you still need an Employers’ Code?

Really?