Professional Documents
Culture Documents
Labor Relations Reviewer - Atty. Ungos
Labor Relations Reviewer - Atty. Ungos
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
COMMENT:
Compromise Agreement:
Compromise: A contract whereby the parties by making reciprocal
concessions, avoid a litigation or put an end to one already
commenced.
o The nature of compromise is such that a party must give
up some of the rights that he has in consideration of the
same act on the part of the other side.
Labor Code recognizes compromise settlement as a mode of settling
labor or industrial disputes.
Parties can validly enter into a compromise not only on controversies
involving labor standards, but also on other labor disputes.
Conclusiveness of Compromise:
A compromise is conclusive and binding even if it is not judicially
approved.
NLRC or any court shall not assume jurisdiction over issues that have
been subject of a compromise settlement, except in case of noncompliance thereof or if there is prima facie evidence that the settlement
was obtained through fraud, misrepresentation, or coercion.
A compromise cannot later be disowned or set aside merely because a
party has changed his mind.
o However, if the consideration for the compromise was very
much less than the amount which the employee was
entitled, it may be set aside for being contrary to law,
morals or public policy.
Case: Olaybar vs. NLRC (237 SCRA 819)
FACTS: Ten (10) employees were terminated by X Corporation on the ground of
retrenchment. Contesting the legality of their retrenchment, the 10 employees
lodged a complaint for illegal dismissal with the Regional Arbitration Branch of
the NLRC. The Labor Arbiter dismissed the complaint but ordered X Corporation
to pay the 10 employees their respective separation pay. Unsatisfied, the
employees appealed to the NLRC. Pending appeal, the employees executed
separate affidavits stating, among others, their intention to withdraw their appeal
since they had already received the separation pay decreed in the decision of the
Labor Arbiter. These affidavits were not, however, submitted to the NLRC. For
some inexplicable reason, neither the 10 employees nor X Corporation brought
to the attention of the NLRC the crucial fact that they had already amicably
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Regional Offices shall act upon the application for registration of such
Collective Bargaining Agreement within five (5) calendar days from receipt
thereof. The Regional Offices shall furnish the Bureau with a copy of the
Collective Bargaining Agreement within five (5) days from its submission.
The Bureau or Regional Office shall assess the employer for every
Collective Bargaining Agreement a registration fee of not less than one
thousand pesos (P1,000.00) or in any other amount as may be deemed
appropriate and necessary by the Secretary of Labor and Employment for
the effective and efficient administration of the Voluntary Arbitration
Program. Any amount collected under this provision shall accrue to the
Special Voluntary Arbitration Fund.
The Bureau shall also maintain a file and shall undertake or assist in the
publication of all final decisions, orders and awards of the Secretary
of Labor and Employment, Regional Directors and the Commission.
COMMENT:
Registration of Collective Bargaining Agreements:
Purpose of Registration:
o To put notice on the existence of such agreement in order to
promote its stable and undisturbed administration.
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Registration Procedure:
o An application for registration should be filed with the Regional
Office of the DOLE which issued the unions certificate of
registration or certificate of creation of chartered local.
o If the certification of creation of the chartered local was issued
by the BLR, application shall be field with the Regional Office
of the DOLE which has jurisdiction over the place where it
principally operates.
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
collective
Supporting Documents:
o Application shall be accompanied by two (2) copies of the
following documents:
(a) Collective bargaining agreement;
(b) Statement that the collective bargaining agreement was
posted in at least two (2) conspicuous places in the
establishment for at least five (5) days before its
ratification; and
(c) Statement that the collective bargaining agreement was
ratified by the majority of the employees in the bargaining
unit.
Posting of CBA
o The collective bargaining agreement must be posted within five
(5) days prior to its ratification, in at least two (2) conspicuous
places in the establishment.
o This is a mandatory requirement.
o Purpose: To inform employees in the bargaining unit of the
contents of the agreement so that they could intelligently
decide on whether to accept the same or not.(Associated
Labor Union vs. FerrerCalleja)
o If the collective bargaining agreement was not posted in
accordance with the rules, the application for registration shall
be disapproved.
Re-Filing:
o If the application for registration was denied for failure to
complete the registration requirements within the ten-day
period from notice, the remedy is to re-file the application with
complete supporting documents.
Appeal:
o If the application for registration is denied on other grounds,
the remedy is to appeal the order of denial within ten (10) days
from receipt to:
(a) Bureau of Labor Relations if the order of denial
was issued by the Regional Office of the DOLE; or
(b) Office of the Secretary of Labor and Employment
if the order of denial was issued by the BLR.
Art. 232. Prohibition on Certification Election - The Bureau shall not entertain
any petition for certification election or any other action which may disturb
the administration of duly registered existing collective bargaining
agreements affecting the parties except under Articles 253, 253-A and 256
of this Code.
COMMENT:
The Contract-Bar Principle
The existence of a duly registered CBA will bar the holding of a
certification election.
Purpose: To promote stability and fairness in collective bargaining
agreements.
If there is a duly registered CBA, a petition for certification election can
only be entertained within the 60-day period prior to the expiration of the
5-year term of the CBA.
A petition for certification election field outside of the 60-day period prior
to the expiration of the term of a duly registered CBA will have to be
dismissed because it will disturb the administration of duly registered
existing CBAs.
Exceptions to the Contract-Bar Principle:
There are certain type of collective bargaining agreements which do not
fall within the operation of the contract-bar principle, namely:
(a) Those entered into with a labor organization which has not been
certified as the sole and exclusive collective bargaining
representative but merely accorded voluntary recognition by the
management despite the existence of another labor organization
seeking recognition.
(b) Those which are not duly registered with the Bureau of Labor
Relations or the appropriate regional office of the DOLE.
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
TITLE IV
LABOR ORGANIZATIONS
CHAPTER I
REGISTRATION AND CANCELLATION
Art. 234. Requirements of Registration - A federation, national union or
industry or trade union center or an independent union shall acquire legal
personality and shall be entitled to the rights and privileges granted by law
(b)
The names of its officers, their addresses, the principal address of
the labor organization, the minutes of the organizational meetings and the
list of the workers who participated in such meetings;
(c) In case the applicant is an independent union, the names of all its
members comprising at least twenty percent (20%) of all the employees in
the bargaining unit where it seeks to operate;
(d) If the applicant union has been in existence for one or more years,
copies of its annual financial reports; and
(e) Four copies of the constitution and by-laws of the applicant union,
minutes of its adoption or ratification, and the list of the members who
participated in it.
COMMENT:
Labor Organization:
A union or association of employees which exists in whole or in part for
the purpose of collective bargaining or of dealing with employers
concerning terms and conditions of employment.
Significance of Registration:
Registration of a labor organization is necessary for it to acquire legal
personality and enjoy the rights and privileges enumerated in Art. 242 of
the Labor Code.
Purpose of Registration:
To protect both labor and public against abuses, fraud or impostors who
pose as organizers, although not truly accredited agents of the union
they purport to represent.
Constitutionality:
The law requiring the registration of labor organizations is not
unconstitutional because it is a valid exercise of the police power.
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Effect of Incorporation:
A labor union organized under the Corporation Law merely gives it
juridical personality before the regular courts, but it will not entitle such
union to the rights and privileges accorded by law to legitimate labor
organizations.
Registration with the DOLE makes a labor organization legitimate.
Registration of Independent Union:
Independent Union: a labor organization operating at the enterprise
level whose legal personality is derived through independent
registration.
To register an independent union, an application for registration should
be filed with the Regional Office of the DOLE where it principally
operates.
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Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Remedy:
Re-Filing of Application
o Re-file application
documents.
or
notice
with
complete
supporting
Art. 235. Action on the Application - The Bureau shall act on all applications
for registration within thirty (30) days from filing.
All requisite documents and papers shall be certified under oath by the
secretary or the treasurer of the organization, as the case may be, and
attested to by its president.
COMMENT:
Significance of the 30-Day Period:
The BLR shall act on all applications for registration within thirty (30)
days from filing.
The mere filing of the requisite documents and papers does not
automatically oblige the BLR to issue a certificate of registration.
The BLR is duty bound to further check if the registration requirements
under Art. 234 have been sedulously complied with.
Certification and Attestation of Documents:
Application for registration and all its supporting documents are required
to be:
(a) Certified under oath by the Secretary Treasurer of the
organization; and
(b) Attested to by the President.
Both requirements must be strictly complied with.
Mandatory attestation requirement also applies to notice of change of
name, notice of merger, and notice of consolidation and all their
supporting documents.
Case: Progressive Development Corporation vs. Secretary of Labor (205
SCRA 802)
FACTS: KILUSAN filed a petition for certification election among the rank and file
employees of PDC, alleging that it is a legitimate labor federation. PDC sought
the dismissal of the petition on the ground that the constitution and by-laws was
merely attested to by the union president but it was not certified under oath by
the union secretary or the union treasurer, hence not acquiring legal personality.
According to the Med-Arbiter, the mere issuance of a Charter Certificate by the
federation was sufficient compliance with the rules.
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
principal. Being just an agent, the notice of strike filed by the NLU is deemed to
have been filed by its principal, the FPWU-NLU. This is so even if FPWU-NLU is
not independently registered.
Case: Elisco-Elirol Labor Union vs. Noriel (80 SCRA 682)
FACTS: Elisco-Elirol Labor Union affiliated itself with the National Federation of
Labor Union (NAFLU). In February 1974, the Elisco-Elirol Labor Union-NAFLU
entered into a collective bargaining agreement with the company. On May 28,
1975, the members of Elisco-Elirol Labor Union-NAFLU disaffiliated from NAFLU
and formed themselves into an independent union.
ISSUE: Which of the two unions has the right to be recognized as the collective
bargaining representative and ultimately administer the collective bargaining
agreement NAFLU or Elisco-Elirol Labor Union?
HELD: Elisco-Elirol Labor Union has the right to be recognized as the collective
bargaining representative and ultimately administer the CBA. As the local union,
Elisco-Elirol Labor Union is the principal party to the CBA. The disaffiliation of
Elisco-Elirol Labor Union from NAFLU did not create a new union but merely
detached the local union from its mother federation.
Creation of a Chartered Local:
A duly registered federation or national union may directly create a
chartered local by submitting to the Regional Office of the DOLE two (2)
copies of the following documents:
(a) Charter Certificate issued by the federation or national
union indicating the creation or establishment of the
local/chapter;
(b) Names of the local/chapters offices, their addresses, and
the principal office of the local/chapter;
(c) Constitution and by-laws of the local/chapter.
Documents should be certified under oath by the Secretary or Treasurer
of the local/chapter and attested by its president.
Affiliation of an Independent Union:
An independent union may affiliate with a federation or national union by
obtaining the following:
(a) Approval of the majority of the union members in a general
membership meeting duly called for the purpose; and
(b) Resolution of affiliation from the board of directors of the
union.
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Report of Affiliation:
The affiliation of an independently registered labor union with a
federation or national union shall be reported to the Regional Office of
the DOLE that issued its certificate of registration.
The Report of Affiliation shall be accompanied by the following
documents:
(a) Resolution of the labor unions board of directors
approving the affiliation;
(b) Minutes of the general membership meeting approving the
affiliation;
(c) Total numbers of members comprising the labor union and
the names of members who approved the affiliation;
(d) Certificate of affiliation issued by the federation in favour
the independently registered labor union; and
(e) Written notice to the employer concerned if the affiliating
union is the incumbent bargaining agent.
Disaffiliation:
A local union has the right to disaffiliate from its mother federation.
The right of a local union to disaffiliate from the mother federation is
primarily dependent upon the constitution and by-laws of the federation.
Proper time for Disaffiliation:
o Generally, during the 60-day freedom period immediately
preceding the expiration of the CBA.
o Exceptionally, disaffiliation may be carried out before the onset
of the freedom period, if there is a substantial shift of
allegiance on the part of the majority of the members of the
union.
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Effect of Disaffiliation:
o On the Relationship Between the Local Union and the
Federation Disaffiliation severs the relationship between the
local union and the mother federation. It divests the federation
of any and all power to act in representation of the local union.
o On the Collective Bargaining Agreement Disaffiliation does
not disturb the enforceability and administration of the CBA
executed by and between an employer and the federation. The
reason is because the local union continues to represent the
employees notwithstanding the disaffiliation.
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Art. 239. Grounds for cancellation of union registration. The following shall
constitute grounds for cancellation of union registration:
a. Misrepresentation, false statement or fraud in connection with the
adoption or ratification of the constitution and by-laws or
amendments thereto, the minutes of ratification and the list of
members who took part in the ratification;
b.
c.
d.
e.
f.
g.
h.
Other than for mandatory activities under this Code, checking off
special assessments or any other fees without duly signed
individual written authorizations of the members;
i.
j.
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
2. Cancellation Procedure
General Rule: The registration of a labor organization can only be
questioned DIRECTLY through a petition for cancellation of registration.
COLLATERAL ATTACK is not allowed.
EXCEPTION: Administrative cancellation is proper.
2.1 The Proper Party
GENERAL RULE: Any party-in-interest.
EXCEPTION: If the ground for cancellation is based on a violation of Article
241 of the LC, only members of the labor organization or workers
association concerned can file the petition for cancellation.
2.2 Form of Petition
The complaint or petition shall be in WRITING, VERIFIED UNDER OATH
and shall contain the following:
(a) name, address and other personal circumstances of the
complainant(s) or petitioner(s);
(b) name, address and other personal circumstances of the
respondent(s) or person(s) charged;
(c) nature of the complaint or petition;
(d) facts and circumstances surrounding the complaint or petition;
(e) cause(s) of action or specific violation(s) committed;
(f) a statement that the administrative remedies provided for in the
constitution and by-laws have been exhausted or such remedies
are not readily available to the complainant(s) or petitioner(s)
through no
(g) fault of his/her/their own, or compliance with such administrative
remedies does not apply to complainant(s) or petitioner(s);
(h) relief(s) prayed for;
(i) certificate of non-forum shopping; and
(j) other relevant matters.
2.3 VENUE
INDEPENDENT
UNION,
CHARTERED
LOCAL,
or
WORKERS
ASSOCIATION: Regional Office of DOLE that issued its certificate of creation or
chartered local.
NATIONAL UNION, INDUSTRY UNION, TRADE UNION CENTERS: Bureau of
Labor Relations.
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Art. 240. Equity of the incumbent. All existing federations and national
unions which meet the qualifications of a legitimate labor organization
and none of the grounds for cancellation shall continue to maintain
their existing affiliates regardless of the nature of the industry and the
location of the affiliates.
1. The Import of the Law
It does not in any way prohibit the disaffiliation of a local union from
a federation or national union.
CHAPTER II
RIGHTS AND CONDITIONS OF MEMBERSHIP
Art. 241. Rights and conditions of membership in a labor organization. The
following are the rights and conditions of membership in a labor
organization:
a. No arbitrary or excessive initiation fees shall be required of the
members of a legitimate labor organization nor shall arbitrary,
excessive or oppressive fine and forfeiture be imposed;
b.
c.
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
e.
f.
g.
h.
i.
The funds of the organization shall not be applied for any purpose
or object other than those expressly provided by its constitution
and by-laws or those expressly authorized by written resolution
adopted by the majority of the members at a general meeting duly
called for the purpose;
j.
l.
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
At least once a year within thirty (30) days after the close
of its fiscal year;
2.
3.
o.
p.
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
The right to check-off union dues and agency fess subsists during
the pendency of a petition for certification election or other intraunion or inter-union disputes.
2.4.3 Withdrawal of Check-off Authorization
Check-off for agency fees does not apply to non-union members for
having accepted the benefits provided for in the CBA.
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
3) prepare and post the voters' list and the list of qualified
candidates;
4) accredit the authorized representatives of the
contending parties;
5) supervise the actual conduct of the election and
canvass the votes to ensure the sanctity of the ballot;
6) keep minutes of the proceedings;
7) be the final arbiter of all election protests;
8) proclaim the winners; and
9) prescribe such other rules as may facilitate the orderly
conduct of election.
3.3 Remedy if Officers do not Call for Election of New officers
The petition shall be filed with the Regional Office of the DOLE that
issued its certificate of registration or certificate of creation of
chartered local.
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Notice of election was not done in a meeting duly called for the
purpose.
THE BLR has the power to expel or remove union officer from
office.
If DOLE is confronted with a petition for expulsion or impeachment
of union officers, it should decide the case on its merits.
Union Funds
No agent, officer, member may collect fees unless he is duly
authorized under the constitution and by-laws.
Shall not be applied for any purpose or object other than those
expressly provided by its constitution and by-laws, or in written
resolution duly authorized by the majority of all the members in a
general membership meeting duly called for the purpose.
Everything must be evidenced by a receipt signed by the officer or
agent making the collection and entered into the record.
Every income or revenue shall be evidenced by a record showing
its source
Every expenditure shall be evidenced by receipt from the person to
whom payment is made which shall state the place and purpose of
such payment.
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
May be filed with the following agencies by any union member with
the written consent of atleast 20% of the total members;
a. BLR: if involed is a federation, national union or trade union center.
b. Regional Office of DOLE that issued its certificate of registration or
certificate of creation of chartered local: involved is an independent
union or chartered local.
4.3 Action for Accounting/ Audit of Union Funds
Chapter III
RIGHTS OF LEGITIMATE LABOR ORGANIZATIONS
Art. 242. Rights of legitimate labor organizations. A legitimate labor
organization shall have the right:
To act as the representative of its members for the purpose of
collective bargaining;
To be certified as the exclusive representative of all the employees in
an appropriate bargaining unit for purposes of collective bargaining;
To be furnished by the employer, upon written request, with its annual
audited financial statements, including the balance sheet and the profit
and loss statement, within thirty (30) calendar days from the date of
receipt of the request, after the union has been duly recognized by the
employer or certified as the sole and exclusive bargaining
representative of the employees in the bargaining unit, or within sixty
(60) calendar days before the expiration of the existing collective
bargaining agreement, or during the collective bargaining negotiation;
To own property, real or personal, for the use and benefit of the labor
organization and its members;
To sue and be sued in its registered name; and
To undertake all other activities designed to benefit the organization
and its members, including cooperative, housing, welfare and other
projects not contrary to law.
Notwithstanding any provision of a general or special law to the
contrary, the income and the properties of legitimate labor
organizations, including grants, endowments, gifts, donations and
contributions they may receive from fraternal and similar
organizations, local or foreign, which are actually, directly and
exclusively used for their lawful purposes, shall be free from taxes,
duties and other assessments. The exemptions provided herein may
be withdrawn only by a special law expressly repealing this provision.
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Cannot file in behalf of non- union member even if the nonmembers signed the complaint.
The union members whose benefit the action has been filed need
not joined as party.
National Brewery and Allied Industries labor Union vs. San Miguel
Brewery.
o The union may sue thereon without joining the members
whose benefit the action has been presented.
Legal Capacity of labor union cannot be raised for the first time on
appeal. (University of pangasinan faculty union vs. University of
Pangasinan)
Title V
COVERAGE
Art. 243. Coverage and employees right to self-organization. All persons
employed in commercial, industrial and agricultural enterprises and in
religious, charitable, medical, or educational institutions, whether
operating for profit or not, shall have the right to self-organization and to
form, join, or assist labor organizations of their own choosing for purposes
of collective bargaining. Ambulant, intermittent and itinerant workers, selfemployed people, rural workers and those without any definite employers
may form labor organizations for their mutual aid and protection.
COMMENT:
1. Implications of the Right to Self- Organization
The right to self-organization carries with it the right to:
a. choose which union he would join
b. cancel his union membership anytime
c. abstain from joining a union
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
3.
Alien employees with valid working permits may also join or assist
labor unions if they are nationals of a country which grants the
same or similar rights to Filipino workers certified by DFA.
4.3 When an Employee Qualifies for Union Membership
6.
5.
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Sec. 7. Government employees' organizations shall register with the Civil Service
Commission and the Department of Labor and Employment. The application
shall be filed with the Bureau of Labor Relations of the Department which shall
process the same in accordance with the provisions of the Labor Code of the
Philippines, as amended. Applications may also be filed with the Regional Offices
of the Department of Labor and Employment which shall immediately transmit
the said applications to the Bureau of Labor Relations within three (3) days from
receipt thereof.
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Sec. 16. The Civil Service and labor laws and procedures, whenever applicable,
shall be followed in the resolution of complaints, grievances and cases involving
government employees. In case any dispute remains unresolved after exhausting
all the available remedies under existing laws and procedures, the parties may
jointly refer the dispute to the Council, for appropriate action.
Sec. 12. Where there are two or more duly registered employees' organizations
in the appropriate organizational unit, the Bureau of Labor Relations shall, upon
petition, order the conduct of a certification election and shall certify the winner
as the exclusive representative of the rank-and-file employees in said
organization unit.
IX. Effectivity
Sec. 17. This Executive Order shall take effect immediately.
Done in the City of Manila, this 1st day of June, in the year of Our Lord, nineteen
hundred and eighty-seven.
Sec. 14. The Civil Service laws and rules governing concerted activities and
strikes in the government service shall be observed, subject to any legislation
that may be enacted by Congress.
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
4.
5.
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
EXCEPTIONS:
1. When the rank-and-file employees are directly under the
authority of supervisory employees
2. When the national federation is actively involved in union
activities in the company
A labor organization composed of a mixture of rank-and-file and
supervisory employees is no labor organization at all
o It cannot possess any of the rights of a legitimate labor
organization, including the right to file a petition for certification
election
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
EMPLOYEES OF COOPERATIVES
COOPERATIVE
o Organization composed primarily of small producers and
consumers who voluntarily join together to form business
enterprises which they themselves own, control, and patronize
EMPLOYEES WHO ARE THEMSELVES MEMBERS OF THE
COOPERATIVE
o No right to form or join a labor organization
o REASON: They are co-owners of the cooperative
TITLE VI
UNFAIR LABOR PRACTICES
CHAPTER I
CONCEPT
Art. 247. Concept of Unfair Labor Practice and Procedure for Prosecution
Thereof. Unfair labor practices violate the constitutional right of workers
and employees to self-organization, are inimical to the legitimate interests
of both labor and management, including their right to bargain collectively
and otherwise deal with each other in an atmosphere of freedom and
mutual respect, disrupt industrial peace and hinder the promotion of
healthy and stable labor-management relations.
Consequently, unfair labor practices are not only violations of the civil
rights of both labor and management but are also criminal offenses against
the State which shall be subject to prosecution and punishment as herein
provided.
Subject to the exercise by the President or by the Secretary of Labor and
Employment of the powers vested in them by Articles 263 and 264 of this
Code, the civil aspects of all cases involving unfair labor practices, which
may include claims for actual, moral, exemplary and other forms of
damages, attorneys fees and other affirmative relief, shall be under the
jurisdiction of the Labor Arbiters. The Labor Arbiters shall give utmost
priority to the hearing and resolution of all cases involving unfair labor
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
The existence of a valid cause for dismissal will negate the charge of
unfair labor practice because the idea of dismissal by unfair labor
practice is incompatible with dismissal for just cause
CRIMINAL PROSECUTION
The criminal aspect of unfair labor practice cannot be prosecuted during
the pendency of the administrative proceedings
o Can only commence when there is a final judgment in the
administrative proceedings declaring that unfair labor practice
has been committed
Final judgment in the administrative proceedings is not binding in the
criminal case
o Cannot be considered an evidence of guilt
o Considered as proof of compliance with the procedural
requirements for the filing of the criminal case
CRIMINAL LIABILITY
o Imposed only upon officers and agents of corporations,
associations or partnerships and officers, members of
governing boards, representatives or agents or members of
labor organizations who have actually participated in,
authorized or ratified the unfair labor practices
COMPROMISE
An unfair labor practice charge can be the subject of a compromise or
amicable settlement
o In line with the declared policy of the State to promote and
emphasize mediation and conciliation as modes of settling
labor or industrial disputes
If settled through compromise, the criminal aspect can no longer
prosper
ACTS NOT CONSTITUTIVE OF UNFAIR LABOR PRACTICE
1. Dismissal of an employee pursuant to a Closed-Shop Agreement
2. Dismissal of an employee responsible for the loss of the goods
consigned to another
3. Dismissal by reason of retrenchment
4. Closure of a department due to losses
5. Dismissal of a supervisor for organizing a labor union composed of men
under his supervision
6. Failure to comply with a reinstatement order
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Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
g.
h.
i.
Chapter II
UNFAIR LABOR PRACTICES OF EMPLOYERS
Art. 248. Unfair labor practices of employers. It shall be unlawful for an
employer to commit any of the following unfair labor practice:
a.
b.
c.
d.
e.
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PMOG to represent them. PMOG was then constrained to declare a strike on the
ground of refusal to bargain and other unspecified unfair labor practices.
ISSUE: Whether or not PHILSTEAM committed unfair labor practice in
interrogating and investigating its employees to determine whether they had
authorized PMOG to act as their bargaining agent
DECISION: Yes
RATIO: It interferes with or restrains the exercise of the employees right to selforganization
ILLUSTRATIVE CASES
INSULAR LIFE ASSURANCE CO. LTD EMPLOYEES V. INSULAR LIFE (37
SCRA 244)
HELD: For an employer to offer reinstatement to striking employees individually,
when they are represented by a union, is equivalent to an attempt to break a
strike since the employees thus offered reinstatement are unable to determine
what the consequences of working would be. Indeed it is unfair labor practice for
an employer to conduct individual solicitation of the employees and urge them to
cease union activity or cease striking
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Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
RATIO: It is true that the one dismissed was Y, the brother of the
employee who filed the case against the Company, but this does not
mean that the Company is no longer guilty of unfair labor practice. If
dismissal of an employee who files a case against his employer
constitutes unfair labor practice, with greater reason should it be when
the employer dismisses an employee by reason of the case filed by his
brother.
DISESTABLISHMENT
An order requiring an employer to withdraw its recognition of a
company-dominated union as the employees collective bargaining
agent and a bona fide and sufficient communication to the employees of
such withdrawal of recognition
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ILLUSTRATIVE CASES
INSULAR LIFE ASSURANCE CO. LTD. EMPLOYEES V. INSULAR LIFE (37
SCRA 244)
FACTS: The Insular Life Assurance Co Ltd. Employees Association submitted to
the Company its proposals for the renewal of the collective bargaining
agreement. Collective bargaining negotiations were conducted but a deadlock
ensued, resulting to a strike. The following day, the Company sent letters to
individual strikers offering them reinstatement with promise of comfortable cots,
free coffee and occasional movies, overtime pay and arrangements for their
families.
ISSUE: Whether or not the Company violated its duty to bargain collectively
DECISION: Yes
RATIO: It is unfair labor practice for an employer operating under a collective
bargaining agreement to negotiate or attempt to negotiate with his employees
individually in connection with changes in the agreement. The basis is that
although the Union is on strike, the employer is still under obligation to bargain
with the Union as the employees bargaining representative.
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
UNION SHOP
o The employer is allowed to hire non-members of the
contracting union on condition that they should join the
contracting union within a specified period of time and must
continue to remain members in good standing to keep their
jobs
3.
MAINTENANCE OF MEMBERSHIP
o Requires those who are members of the contracting union at
the time of the execution of the collective bargaining
agreement to maintain their membership in good standing
during the lifetime of the collective bargaining agreement as a
condition of continued employment
4.
AGENCY SHOP
o Does not require union membership but only support from the
employees within the bargaining unit in the form of agency
fees, as a condition of continued employment
5.
PREFERENTIAL HIRING
o The members of the contracting union are given preference in
engagement, all circumstances being equal, and for them to
maintain their membership in good standing during the lifetime
of the collective bargaining agreement as a condition of
continued employment
LIMITATIONS
A closed shop agreement cannot be enforced against:
1. Employees who are already members of another union at the time
of the signing of the collective bargaining agreement
2. Employees whom the union refused admission to membership
without any reasonable ground therefor
3. Employees who are members of religious sects which prohibit their
members from joining a labor organization
CONSTRUCTION OF UNION SECURITY AGREEMENTS
Strictly construed and any doubt must be resolved against its existence
The stipulation to that effect must be clear and unequivocal as to leave
no room for doubt thereon
Applies to closed shop, union shop and maintenance of membership
agreement
BINDING EFFECT
A union security arrangement is binding even if the employees are not
aware of such an agreement
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
CHAPTER 3
UNFAIR LABOR PRACTICES OF LABOR ORGANIZATIONS
ART. 249. Unfair Labor Practices of Labor Organizations. - It shall be unfair
labor practice for a labor organization, its officers, agents or
representatives:
(a) To restrain or coerce employees in the exercise of their rights to
self-organization. However, a labor organization shall have the
right to prescribe its own rules with respect to the acquisition or
retention of membership.
(b) To cause or attempt to cause an employer to discriminate against
an employee, including discrimination such organization has been
denied or to terminate an employee on any ground other than the
usual terms and conditions under which membership is made
available to other members;
(c) To violate the duty, or refuse to bargain collectively with the
employer, provided it is the representative of the employees;
(d) To cause or attempt to cause an employer to pay or deliver or
agree to pay or deliver any money or other things of value, in the
nature of an exaction, for services which are not performed,
including the demand for fee for union negotiations;
COMMENT:
1. Coercion/Restraint on the Right to Self-Organization
This is exemplified by a labor organization who recommends the
dismissal from employment of an employee who cancels his membership
with the union during the freedom period. During the freedom period, a union
member is free to exercise his right to self-organization. He may therefore
resign from the contracting union or join another union of his choice without
being subjected to sanctions. The reason is that the union security
agreement is deemed suspended during the freedom period.
A labor organization also commits unfair labor practice if it expels a
union member who initiates a petition for audit of union funds considering
that union members are entitled to a full and detailed reports from their
officers of all financial transactions.
MD Transit v. De Guzman
7 SCRA 726
FACTS: 3 members of the MD-CAM Local 3 PTGWO secured the
signatures of their co-employees to a petition to the DOLE for an audit of the
mutual aid fund of the Union. The petition for audit was granted and took
place on October 27, 1958, where it was discovered that the mutual aid fund
was short of P22k. The matter was referred to the City Fiscal of Quezon
City for appropriate action. The President of the Union suspended the 3
members and several days later, the BOD expelled them from the Union. Is
the Union guilty of ULP?
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Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
(e)
COMMENT:
1. Collective Bargaining
The term collective bargaining denotes in common usage as
well as in legal terminology, negotiations toward a CBA. Collective
bargaining is one of the democratic frameworks under the Labor Code
designed to stabilize the relation between labor and management and to
create a climate of sound and stable industrial peace.
Collective bargaining is not equivalent to an adversarial
litigation where rights and obligations are delineated and remedies
applied. It is simply a process of finding a reasonable solution to a
conflict and harmonizing opposite positions into a fair and reasonable
compromise.
TITLE VII
COLLECTIVE BARGAINING AND ADMINISTRATION OF AGREEMENTS
(b)
(c)
(d)
of the labor
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3.
Multi-Employer Bargaining
Legitimate labor organizations and employers may agree in
writing to come together for collective bargaining purposes under the
following conditions:
(a)
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terminated the contract with AFWU. AFWU filed a complaint for ULP for
refusal to bargain. Is MARITIMA duty bound to bargain with AFWU?
HELD: Under the law, the duty to bargain collectively arises only
between the employer and its employees. Where neither party is an
employer nor an employee of the other, no such duty would exist.
MARITIMA was not the employer of the workers of AFWU. Under the
ARRASTRE AND STEVEDORING CONTRACT, AFWU was an
independent contractor of MARITIMA.
2.3 Union Must Be Recognized or Certified as Bargaining Agent
If the union has not been designated or selected by the
majority of the employees in the bargaining unit as their collective
bargaining representative, the duty to bargain does not exist.
If two or more unions claim to hold the majority of the
employees in the bargaining unit, the duty to bargain does not exist until
the issue on majority representation is finally settled.
3.
ART. 252. Meaning of the Duty to Bargain Collectively. - The duty to bargain
collectively means the performance of a mutual obligation to meet and
convene promptly and expeditiously in good faith for the purpose of
negotiating an agreement with respect to wages, hours of work and all
other terms and conditions of employment including proposals for
adjusting any grievances or questions arising under such agreements and
executing a contract incorporating such agreements if requested by either
party but such duty does not compel any party to agree to a proposal or to
make any concession.
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3.
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4.
COMMENT:
1. Collective Bargaining Agreement
Collective bargaining agreement is a contract by and
between an employer and the collective bargaining representative
of the employees within an appropriate bargaining unit, concerning
wages, hours of work, and all other terms and conditions of
employment. It is the law of the plant.
5.
5.1.
The primary purpose of the CBA is the stabilization of labormanagement relations in order to create a climate of a sound and
stable industrial peace.
2.
3.
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7.
Rivera v. Espirity
G.R. No. 135547, January 23, 2002
FACTS: On June 5, 1998, the Airline Pilots Association of the Philippines
(ALPAP) composed of pilots of Philippine Airlines, Inc. (PAL) went on a 3-week
strike, causing serious losses to the financially beleaguered flag carrier. Faced
with bankruptcy, PAL adopted a rehabilitation plan and downsized its labor force
by more than one-third.
On July 22, 1998, the Phiilippine Airlines Employees Association
(PALEA), composed of ground employees of PAL went on strike to protest the
reduction of personnel which affected 1,899 union members. The strike ended 4
days later, when PAL and PALEA agreed to a more systematic reduction in
PALs work force and the payment of separation benefits to all retrenched
employees.
7. 10-year suspension of CBA
The parties can agree to suspend their CBA under exceptional
circumstances
The right to free Collective Bargaining (CB) includes the right to
suspend it
SC upheld the validity of an agreement to suspend the CBA for 10 years
in the case of Rivera v. Espiritu (Jan. 23, 2002)
FACTS:
- PAL was suffering from a difficult financial situation in 1998. It was faced
with bankruptcy and was forced to adopt a rehabilitation plan and
downsized its labor force by more than 1/3.
- PAL pilots went on a three-week strike in June 1998. PALEA (PAL
Employees Association) went on a four-day strike to protest
retrenchment measures in July 1998.
- President Estrada issued A.O. No. 16, creating an Inter-Agency Task
Force (Task Force) to address PALs problems. Espiritu, then Sec of
Finance, was chairman of the Task Force. Task Force was empowered
to summon all parties concerned for conciliation, mediation for the
purpose of arriving at a total and complete solution of the problem.
- PAL management submitted to the Task Force an offer by Lucio Tan,
which was subsequently rejected.
- PAL then informed the Task Force that rehabilitation was no longer
feasible and there was no alternative but to close shop.
- PAL ceased operations on Sep 23, 1998.
- PALEA board wrote President Estrada to seek his intervention on Sep
25, 1998. PALEA offered a 10-year moratorium on strikes and similar
actions and a waiver of some of the economic benefits in the existing
CBA. Tan, however, rejected this counter-offer.
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
PALEA board again wrote the President on Sep 28, 1998. Among
others, it proposed the suspension of the PAL-PALEA CBA for a period
of ten years, subject to certain conditions.
PALEA members accepted such terms through a referendum on Oct 2,
1998.
PAL resumed domestic operations on Oct 7, 1998.
Seven officers and members of PALEA filed instant petition to annul the
Sep 27, 1998 agreement entered into between PAL and PALEA.
Negotiation
Compromise
Mediation &
Arbitration
EXCEPTION: Injunctions may be issued only in cases of extreme necessity
based on legal grounds, after due considerations/hearing and when all
efforts at conciliation are exhausted.
2. When Injunction in Labor Disputes May Issue
In ordinary disputes
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Such right extends only to matters that directly affect their rights, benefits
and welfare.
Right
not
extend
to
matters
pertaining
to
business
operations/management aspect of the business nor to matters covered
by CBA or those failing within traditional areas of CB
Right can be exercised thru a Labor-management council to be formed
jointly by the ER and the EEs.
Unionized establishments Ees representatives to council shall be
nominated by the exclusive bargaining representative.
NON -Unionized establishments Ees representatives to council shall
be elected directly by the Ees at large.
Case: PAL v. NLRC (225 S 301)
FACTS:
- PAL completely revised its 1966 code of discipline and thereafter
circulated such among the EEs and immediately implemented. PALEA
challenged such on the ground that it was done withour prior notice and
hearing but PAL claimed that it was a prerogative of the management
and thus, theres no need to discuss such with the union.
ISSUE/S: WON PAL may be compelled to share with the union (PALEA) or its
Ees its prerogative of formulating a code of discipline
HELD: A close scrutiny of the objectionable provisions of the Code reveals that
they are not purely business-oriented nor do they concern the management
aspect of the business of the company. The provisions of the Code clearly have
repercusions on the employee's right to security of tenure. The implementation of
the provisions may result in the deprivation of an employee's means of livelihood
which, as correctly pointed out by the NLRC, is a property right. In view of these
aspects of the case which border on infringement of constitutional rights, we
must uphold the constitutional requirements for the protection of labor and the
promotion of social justice, for these factors, according to Justice Isagani Cruz,
tilt "the scales of justice when there is doubt, in favor of the worker". Verily, a line
must be drawn between management prerogatives regarding business
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
ABU a group of EEs of a given ER, comprised of all or less than all the
entire body of EEs, which the collective interest of all the EEs, consistent
with equity to the ER, indicate to the best suited to serve the reciprocal rights
and duties of the parties under the CB provisions of law.
To be considered appropriate it must effect a grouping of EEs who have
substantial, mutual interests in wages, hrs. Of work, working conditions and
other subjects of collective bargaining.
Bargaining unit (BU) composed of a mixture of rank-and-file and supervisory
EEs not ABU!
No mutuality of interest between supervisory and Rank-and-file EEs
considering that the former, while in the performance of their functions,
become alter ego of management in the making and implementing of
key decisions at sub-managerial level.
BU composed of EEs with entirely different working conditions, hrs. Of work,
rates of pay, categories of positions and employment status not ABU!
CASES:
exclusive CBAgent of
analysts, mechanics,
and confidential EEs of
because
it
includes
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Labor laws did not provide criteria for fixing ABU (apart from the descriptive
word in Art. 255 appropriate)
Baic test of BUs acceptability: WON it is fundamentally the combination
which will best assure to all EEs the exercise of their CB rights.
Rothenbergs fundamental factors:
(1) will of employees (Globe Doctrine);
The proper Bargaining unit may be fixed on the basis of the affinity
and the unity of the EEs interest, such as substantial similarity of
work and duties or similarity of compensation and working
conditions.
Cases
Alhambra Cigar v. Kapisanan (107 S 23)
FACTS: Alhambra Employees' Association (AEA) filed a petition praying that it be
certified as the sole and exclusive bargaining agent for all the employees in the
administrative, sales and dispensary departments. Alhambra Cigar and
Kapisanan Ng Manggagawa sa Alhambra (FOITAF) opposed the petition on the
ground that the unit sought to be represented by AEA is not an appropriate CBU
since it is the employer unit which is the appropriate CBU and not the smaller unit
sought by the AEA
ISSUE/S: WON the separate bargaining unit composed of EEs in the
administrative, sales and dispensary departments would constitute an
appropriate CBU
HELD: The SC held that the employees in the administrative, sales and
dispensary departments can form their own bargaining unit separate and distinct
from those involved in the production and maintenance. They have a community
of interest which justifies their formation or existence as a separate appropriate
collective bargaining unit. The existing CBA covers only those in the production
and maintenance.
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Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
exclusion of the daily paid EEs from bargaining unit of those monthly
paid.)
CASES:
Knitjoy Manufacturing, Inc. v. Ferrer-Calleja (214 S 174)
FACTS: CFW is the certified CR of daily-paid rank-&-file EEs of Knitjoy. While
later and CFW were negotiating for renewal of their CBA, KMEU filed a petition
for certification election among the monthly-paid rank-&-file EEs of knitjoy. CFW
challenged such.
ISSUE/S: WON monthly-paid rank-&-file EEs of Knitjoy can constitute an ABU
separate and distinct from existing unit composed of daily-paid rank-&-file EEs
HELD: Yes. There can be separate bargaining unit on the basis of this. The
regular monthly-paid rank-&-file EEs of Knitjoy were never included in the scope
of the bargaining unit of the daily-paid rank-&-file EEs of Knitjoy
San Miguel Corp. EEs Union v. Confessor (262 S 81)
FACTS: SMCEA is the collective bargaining agent of the rank-&-file EEs of SMC
in its 4 operating divisions (beer, packaging, feeds & livestock, Magnolia and
agri-business). The last 2 divisions became 2 separate and distinct corporations
Magnolia Corp and San Miguel Foods Corp. SMCEA insisted that bargaining
unit should still include the EEs of the spun-off corporations. SMC claimed that
EEs who moved to Magnolia Corp., can no longer be included because they
automatically cease to be EEs of SMC.
ISSUE/S: WON the bargaining unit at SMC should include the EEs of Magnolia
Corp. and San Miguel Foods, Inc.
HELD: No. There are 2 distinct corporations in the case at bar. Indubitably,
therefore, Magnolia and the feeds and livestock divisions became distinct entities
with separate juridical personalities. Thus, cannot be joined in a single bargaining
unit.
2.5. Separate Bargaining Units for Every Corporation
Mere fact that their business are related and that some of EEs
of 1 corp. were original EEs of the other
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
3. THE CBAgent
Is the process of determining through secret ballot the sole and exclusive
CBrepresentative of the EEs in an appropriate bargaining unit.
Can be done through:
Order of DOLE
Conditions:
(a) Certification Election should have at least 3 choices
(b) None of the choices obtained a majority of the valid votes cast
(c) Total # of votes for ALL contending unions is at least 50 % of the
numbers votes cast
(d) There are no challenged ballots, which can materially alter the
results
Only 2 labor unions receiving the highest # of votes can participate in a runoff election
no union shall not be a choice of a run-off election
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Labor union that garners majority of the valid votes cast shall be the
exclusive collective bargaining agent of the EEs covered by the bargaining
unit.
CBAgent represents not only union members but also non-union members
within the bargaining unit.
Since it voluntarily assumes the responsibility of representing all the
EEs in the bargaining unit.
In cases where the contract-bar principle is not applicable (as when the CBA
was not duly registered) the EEs may change their CBAgent, but the CBA
continues to bind them up to the expiration date.
The doctrine: EEs cannot revoke a validly executed CBA by the simple
expedient of changing their bargaining agent.
The new agent is obliged to respect the CBA, although it could
negotiate for the shortening of the life of the said agreement.
run-off election shall be conducted between the labor unions receiving the
two highest number of votes: Provided, That the total number of votes for
all contending unions is at least fifty percent (50%) of the number of votes
cast. In cases where the petition was filed by a national union or federation,
it shall not be required to disclose the names of the local chapters officers
and members.
At the expiration of the freedom period, the employer shall continue to
recognize the majority status of the incumbent bargaining agent where no
petition for certification election is filed. (As amended by Section 23, Republic
Act No. 6715, March 21, 1989 and Section 10, Republic Act No. 9481 which
lapsed into law on May 25, 2007 and became effective on June 14, 2007).
COMMENT:
1. Purpose of Certification Election
To ascertain the wishes of the majority of the EEs in the bargaining unit on
whether to be represented by a labor organization and which labor
organization.
Intended to give EEs true representation in their collective bargaining
with their ER
**
2. Significance of Certificate Election
Article 256. Representation Issue in Organized Establishments. - In organized
establishments, when a verified petition questioning the majority status of
the incumbent bargaining agent is filed by any legitimate labor organization
including a national union or federation which has already issued a charter
certificate to its local chapter participating in the certification election or a
local chapter which has been issued a charter certificate by the national
union or federation before the Department of Labor and Employment within
the sixty (60)-day period before the expiration of the collective bargaining
agreement, the Med-Arbiter shall automatically order an election by secret
ballot when the verified petition is supported by the written consent of at
least twenty-five percent (25%) of all the employees in the bargaining unit
to ascertain the will of the employees in the appropriate bargaining unit. To
have a valid election, at least a majority of all eligible voters in the unit
must have cast their votes. The labor union receiving the majority of the
valid votes cast shall be certified as the exclusive bargaining agent of all
the workers in the unit. When an election which provides for three or more
choices results in no choice receiving a majority of the valid votes cast, a
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Filed with the Regional Office of the DOLE which issued the petitioning
unions certificate of registration or certificate of creation of chartered local.
Absence of CBA or if CBA has not been duly registered in accordance with
Art. 231, LC
Such may be filed anytime
If there is a duly registered CBA
Petition for Certification Election can be filed only during the freedom
period (60 days prior to expiry of such agreement)
Cases:
under CBA does not alter the situation. More so because the CBA was not yet in
existence when the petition for certification election was filed.
NACUSIP v. Ferrer-Calleja (205 S 478)
FACTS: NFSW and DSR Milling Co.s 3 year CBA expired on Nov. 14, 1987.
They renewed such. On Dec. 5, 1988, NACUSIP filed a petition for certification
election. NSFW sought the dismissal of such
ISSUE/S: WON petition should be dismissed since such was filed outside the
freedom period
HELD: Yes. Petition for Certification Election in organized establishments can
only be entertained within the 60 days prior to the expiry date of an existing CBA
and a petition filed after freedom period should be dismissed outright.
United Aluminum Fabricators v. Drilon (211 S 104)
FACTS: United and UAFW had a CBA which expired on April 29, 1989. During
freedom period (April 3, 1989), the two renegotiated and executed a new CBA.
After the lapse of 69 days from expiry of the former CBA, KAMPIL filed a petition
for certification election. United moved to dismiss. Med-Arbiter dismissed but
Sec. Of Labor and Employment ordered the holding of certification election.
ISSUE/S: WON secretary was correct
HELD: No. 69 days after the expiry was beyond the freedom period set by law.
7. Form and Contents of Petition
Petition for certification shall be in writing and verified by the president of the
petitioning union.
Allegations need to be contained:
(a) the name of petitioner, its address, and affiliation if appropriate, the date and
number of its certificate of registration. If the petition is filed by a federation or
national union, the date and number of the certificate of registration or certificate
of creation of chartered local;
(b) the name, address and nature of employer's business;
(c) the description of the bargaining unit;
(d) the approximate number of employees in the bargaining unit;
(e) the names and addresses of other legitimate labor unions in the bargaining
unit;
(f) a statement indicating any of the following circumstances:
1) that the bargaining unit is unorganized or that there is no registered
collective bargaining agreement covering the employees in the
bargaining unit;
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Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Before filing of petition for CE: the Med- Arbiter may not order the
holding of CE.
La Suerte Cigar and Cigarette Factory v. Dir of Labor Relations:
o Withdrawals made before the filing of the petition are
presumed voluntary, unless there is convincing proof to the
contrary.
o Withdrawals made after the filing are deemed involuntary.
After filing of petition for CE: the Med- Arbiter can still order the holding
of CE.
George & Peter Linea Inc. v. ALU:
o Withdrawal of 80% of the membership which the union claims
to be involuntary, the best forum to determine if there was
undue pressure exerted upon employees to retract their
membership is the CE itself.
Case: La Suerte Cigar and Cigarette Factory vs. Director of Bureau of Labor
Relations (123 SCRA 679)
HELD: xxx whether or not the withdrawal of 31 union members from NATU
affected the petition for certification election insofar as the 30% requirement is
concerned, We reverse the Order of respondent Director of the Bureau of Labor
Relations, it appearing undisputably that the 31 union members had withdrawn
their support to the petition before the filing of said petition. It would be otherwise
if the withdrawal was made after the filing of the petition for it would then be
presumed that the withdrawal was procured through duress, coercion or for
valuable consideration. In other words, the distinction must be that withdrawals
made before the filing of the petition are presumed voluntary, unless there is
convincing proof to the contrary, whereas withdrawals made after the filing of the
petition are deemed involuntary.
If the withdrawal or retraction of consent was made after the filing of the
petition for certification election, the Med-Arbiter can still order the
holding of a certification election.
Case: George & Peter Lines Inc. vs. ALU (134 SCRA 82)
HELD: xxx Certification election is the best and most appropriate means of
ascertaining the will of the employees as to their choice of an exclusive
bargaining representative Even if the withdrawals of the employees concerned
were submitted after the Petition for the Direct Certification had been filed the
doubt as to the majority representation has arisen, and it is best to determine the
true sentiment of the employees through a certification election.
Reason for distinction:
o If the withdrawal or retraction is made before the filing of the
petition, the names of employees supporting the petition are
supposed to be held secret to the opposite party.
o When the withdrawal or retraction is made after the petition is
filed, the employees who are supporting the petition become
known to the opposite party since their names are attached to
the petition at the time of filing.
Inappropriate Bargaining Unit
A bargaining unit is not an appropriate bargaining unit:
a) If it fragments the employer unit;
b) If the composition thereof is a mixture of rank-and-file and
supervisory employees, or a mixture of supervisory and
managerial employees;
c) If it is composed of managerial employees; or
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of the second petition on the ground that it was filed within one (1) year from
the dismissal of the first petition.
ISSUE: Whether or not CLOP was barred from filing the second petition for
certification election?
HELD:NO. CLOP was not barred from filing the second petition for
certification election. The one-year prohibition imposed by the election-year
bar rule does not apply because no certification election was ever
conducted. The first petition was merely dismissed because of certain
defects. The election-year bar rule will apply only when there is actual
conduct of election.
The Negotiation-Bar Rule
No representation question may be entertained if, within the one-year
period from the date of entry of voluntary recognition, certification
election, or run-off election, the duly recognized or certified union has
commenced negotiations with the employer in accordance with Article
250 of the Labor Code.
Case: KAMPIL vs. Trajano( 201 SCRA 453)
FACTS: By virtue of a Resolution of the Bureau of Labor Relations dated
February 27, 1981, NAFLU was declared as the exclusive bargaining
representative of all the rank-and-file workers of Viron Garments. Four (4) years
had lapsed without any collective bargaining agreement being entered into
between NAFLU and Viron.
ISSUE: Can another labor organization file a petition for certification election?
HELD: YES. A petition for certification election can be filed by another union. The
one-year period during which the certified union is required to negotiate with the
employer has long expired.
The Deadlock-Bar Rule
No representation question may be entertained if, before the filing of a
petition for certification election, a bargaining deadlock to which an
incumbent or certified bargaining agent is a party, had been submitted
to conciliation or arbitration or had become the subject of a valid notice
of strike or lockout.
o Purpose: To ensure stability in the relationship of the workers
and the management.
Case: NACUSIP vs. Trajano (208 SCRA 18)
FACTS: NACUSIP is the certified bargaining representative of the rank-and-file
employees of Calinog Refinery Corporation. A collective bargaining deadlock
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EFFECT OF STRIKE
None. Certification election is still valid
CONDUCT OF CERTIFICATION ELECTION
QUALIFIED VOTERS
All employees covered by the appropriate bargaining unit at the time of
issuance of the order granting the holding of a certification election
Probationary employees
Strikers
o REASON They continue to enjoy employee status during the
strike
o EXCEPTION They are declared to have lost their employee
status
Employee dismissed from work but has contested the legality of
dismissal in a forum of appropriate jurisdiction at the time of issuance of
the order for the conduct of a certification election
o EXCEPTION His dismissal was declared valid in a final
judgment at the time of the holding of the certification election
Members of Iglesia ni Kristo
o No law, administrative rule or precedent prescribes forfeiture of
the right to vote by reason of neglect to exercise the right in the
past certification elections
o The fact Iglesia ni Kristo members are forbidden by their
religious belief from forming, joining or assisting labor
organizations does not disqualify them from voting in a
certification election
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Election Protest
Any party-in-interest may file a protest based on the conduct or
mechanics of the election.
The protest must be recorded in the minutes of the
proceedings.
Protests not so raised are deemed WAIVED.
A Labor Organization which did not take part in the certification election
cannot file a protest.
The protesting party must:
Formalize its protest with the Med-Arbiter
With specific grounds, arguments and evidence therefor
Within five (5) days after the close of the election proceedings.
[The phrase close of the election proceedings refers to that
period from the closing of the polls to the counting and
tabulation of votes].
The PROTEST shall be DEEMED DROPPED, IF the protest is not
recorded in the minutes of the proceedings or if not formalized
within the prescribed period.
A certification election may be declared invalid if certain irregularities
were committed during the election. BUT a mere general allegation of
duress is not sufficient to invalidate a certification election.
Example of Irregularities:
If the workers of the night shift and afternoon shift were not able to
vote
The secrecy of ballots was not safeguarded
The election supervisors were remiss in their duties and were
apparently intimidated by a union representative and the
participating unions were overzealous in wooing the employees to
vote in their favorby resorting to such tactics as giving free tricycle
rides and T-shirts.
Failure of Election
is present when LESS THAN a majority of all eligible voters
have cast their votes.
it shall not bar the filing of a motion for the immediate holding
of another certification/consent election within six (6) months
from the declaration of failure of election.
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COMMENT:
Employer as Petitioner
If a legitimate labor organization requests an employer to
bargain collectively there are 2 options available to the
employer, namely:
a. Voluntarily recognize the representation status of the labor
organization; or
b. File a petition for certification election.
Case: Ilaw at Buklod Ng Manggagawa v. Ferrer-Calleja(182 SCRA 561)
FACTS: On September 7, 1987, IBM requested San Miguel Corporation (SMC)
for voluntary recognition as the sole and exclusive bargaining representative of
all monthly and daily paid employees of the Calasiao Sales Office. SMC denied
the request. Instead, it filed a petition on the ground that it did not ask SMC to
bargain collectively with it.
HELD: IBMs request for voluntary recognition as bargaining representative was
in effect a request to bargain collectively. Hence, SMCs petition for certification
election was proper under Article 258 of the Labor Code.
ART. 259. Appeal from certification election orders. - Any party to an election
may appeal the order or results of the election as determined by the MedArbiter directly to the Secretary of Labor and Employment on the ground
that the rules and regulations or parts thereof established by the Secretary
of Labor and Employment for the conduct of the election have been
violated. Such appeal shall be decided within fifteen (15) calendar days.
COMMENT:
Remedy From a Decision in a Petition for Certification Election
In Unorganized Establishments
a. Order Dismissing a Petition for Certification Election
may be appealed to the Office of the Secretary of Labor and
Employment within ten (10) days from receipt thereof.
b. Order Granting a Petition for Certification Election
is NOT appealable.
any issue arising therefrom may be raised by means of protest
on the conduct and results of the certification election.
The Bureau shall conduct a certification election within twenty (20) days in
accordance with the rules and regulations prescribed by the Secretary of
Labor.
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In Organized Establishments
The ORDER DISMISSING or GRANTING the Petition for Certification
Election
may be appealed to the Office of the Secretary of Labor and
Employment within ten (10) days from receipt.
Form of Appeal
-
under oath
shall consist of a memorandum of appeal
specifically stating the grounds for appeal
supporting arguments and evidence
Title VII-A
GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION
ART. 260. Grievance machinery and voluntary arbitration. - The parties to a
Collective Bargaining Agreement shall include therein provisions that will
ensure the mutual observance of its terms and conditions. They shall
establish a machinery for the adjustment and resolution of grievances
arising from the interpretation or implementation of their Collective
Grievance Machinery
where grievances are processed which the parties to a
collective bargaining agreement are required to establish under
Article 260 of the Labor Code.
If NO Grievance Machinery provided in the Collective Bargaining
Agreement
the parties are required to create, within ten (10) days from
signing of the collective bargaining agreement, a grievance
committee to be composed of at least two(2) representatives
from the members of the bargaining unit(which shall be
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members and the unfair labor practice should be settled by voluntary arbitration,
and not by the labor arbiter following the provision of the CBA, which ought to be
treated as the law between the parties. Additionally, SMC theorized that since the
Union questioned the discharges, the main question is whether SMC had the
prerogative to effect the discharges on the ground of redundancy, and this
necessarily calls for the interpretation or implementation of Article III (Job
Security) in relation to Article IV (Grievance Machinery) of the CBA.
HELD: SMCs contention is not meritotious because:
a. There is no agreement whatsoever between SMC and the Union that
would state in unequivocal language that they conform to the
submission of termination disputes and unfair labor practice to voluntary
arbitration.
b. SMC cannot validly invoke Section 2, Article III to show that the dispute
is proper subject of grievance because the Union did not exercise its
right to seek reconsideration of SMCs move to terminate the services of
the employees concerned.
c. There is no connection whatsoever between SMCs management
prerogative to effect the discharges and the interpretation or
implementation of Article III and IV of the CBA.
Hence, the Union acted well within its right in filing the complaint for illegal
dismissal with the Labor Arbiter. The termination disputes are matters falling
under the original and exclusive jurisdiction of the Labor Arbiter.
ART. 262-A. Procedures. - The Voluntary Arbitrator or panel of Voluntary
Arbitrators shall have the power to hold hearings, receive evidences and
take whatever action is necessary to resolve the issue or issues subject of
the dispute, including efforts to effect a voluntary settlement between
parties.
All parties to the dispute shall be entitled to attend the arbitration
proceedings. The attendance of any third party or the exclusion of any
witness from the proceedings shall be determined by the Voluntary
Arbitrator or panel of Voluntary Arbitrators. Hearing may be adjourned for
cause or upon agreement by the parties.
Unless the parties agree otherwise, it shall be mandatory for the Voluntary
Arbitrator or panel of Voluntary Arbitrators to render an award or decision
within twenty (20) calendar days from the date of submission of the dispute
to voluntary arbitration.
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ART. 262-B. Cost of voluntary arbitration and Voluntary Arbitrators fee. - The
parties to a Collective Bargaining Agreement shall provide therein a
proportionate sharing scheme on the cost of voluntary arbitration including
the Voluntary Arbitrators fee. The fixing of fee of Voluntary Arbitrators,
whether shouldered wholly by the parties or subsidized by the Special
Voluntary Arbitration Fund, shall take into account the following factors:
a.
b.
c.
d.
e.
COMMENT:
Voluntary Arbitrators Fee and Arbitration Cost
Unless the parties agree otherwise, the cost of voluntary
arbitration proceedings and voluntary arbitrators fee shall be
shared EQUALLY by the parties.
If their funds is INSUFFICIENT, they may avail of the subsidy
under the Special Voluntary Arbitrators Fund.
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Collective bargaining deadlock the situation between the labor and management of the
company where there is failure in the collective bargaining negotiations resulting in a
stalemate. There is a deadlock when there is a complete blocking or stoppage resulting
from the action of equal and opposed forces.
3
ULP are those enumerated in Arts 248 and 249. Violations of the collective bargaining
agreement is considered ULP only if it is flagrant and/or malicious refusal to comply with
the economic provisions of the CBA.
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b.) If declared for both a legal and illegal purpose, the strike is ILLEGAL
in its entirety.
c.) If the purpose is lawful but the means employed are unlawful, the
strike is ILLEGAL.
A strike is not rendered illegal by the mere fact that the demands of the
union are unreasonable. The legality of a strike does not depend upon the
reasonableness of the demands. If the demands cannot be granted, they should
be rejected. Also, the mere fact that the demands of the union were rejected
does not make the strike illegal.
A strike staged in good faith that the management committed ULP is not
illegal. It suffices if such belief in good faith is entertained by labor as the
inducing factor for staging a strike. An unsubstantiated claim of good faith is not
enough; it should be supported by factual basis.
However, the requirements of the notice of strike and the strike vote
must still be complied with, else the strike will be declared illegal even if the union
acted on good faith on the belief that management committed ULP.
2.16 Illegal Strike
The following strikes have been held illegal:
a.) Strike staged on grounds other than those prescribed by law{a.) CBD and b.)
ULP}
Arica vs. Minister of Labor
137 SCRA 267
xxx Section 1 of PD 823 states: However, any legitimate labor union may strike
and any employer may lock out in establishments not covered by General Order
No. 5 only on grounds of unresolved economic issues in collective bargaining, in
which case the union or the employer shall file a notice with the BLR at least 30
days before the intended strike or lockout. xxx
The Union went on strike not on grounds of unresolved economic issues in
collective bargaining. The Union struck against the alleged ULP of the
management for not paying 50% of the signing bonus; the Unions strike cannot
be a ULP strike or an economic strike. The strike was illegal.
b.) Strike staged without complying with any of the legal requirements of the
strike {a.) notice of strike; b.) strike vote and c.) strike vote report; a strike is
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This dropped the case from the docket of notice of strikes as provided in Rule 41
of NCMB rules, as if there was no notice of strike. During the pendency of
preventive mediation, no strike could be legally declared.
f.) Strike carried out with the use of force, violence, physical injuries, sabotage
and unnecessary obscene language {This is illegal because it is violative of Art
264(e) of the Labor Code. The Constitution also only guarantees peaceful
concerted activities.}
Liberal Labor Union vs. Philippine Can Co.
91 Phil. 72
The strikers, particularly the top officials of the union, all committed coercion,
force, intimidation, violence with physical injuries, sabotage and used
unnecessary and obscene language. A strike under these circumstances cannot
be justified in a regime of law.
g.) Strike staged in violation of the no-strike stipulation of a CBA {A strike will be
illegal for violation of a no-strike stipulation only if it is an economic strike. If the
strike is based on ULP, the no-strike stipulation is not violated.}
Philippine Metal Foundries vs. CIR
90 SCRA 135
The strike declared by the Union was not considered a violation of the no-strike
clause of the CBA because it was due to ULP committed by the employer.
h.) Strike staged without giving the employer ample time to consider and act on
the demands of the union {Illegal because of unreasonableness.}
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3. Picketing
Picketing is the marching to and fro before the premises of an establishment
involved in a dispute, generally accompanied by the carrying and display of a
sign, placard or banner bearing statements in connection with the dispute.
Picketing is a freedom guaranteed by the Constitution. If peacefully
carried out, it cannot be enjoined even in the absence of employer-employee
relationship. But the courts can confine or localize the demonstrations to the
disputants and insulate establishments with no industrial connection or interest to
the dispute.
3.1 Injunction Against Picketing
General Rule: Picketing cannot be enjoined because it is part of the freedom of
speech.
Exceptions:
a.) If necessary to protect the rights of third parties or innocent
bystanders;
b.) If the picketing is carried out through the use of illegal means;
c.) If the picketing is carried out through the use of violence or illegal
acts.
4. Boycott
Boycott is a combination formed for the purpose of restricting the market of an
individual or group of individuals.
a.) Primary boycott one which is 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.
b.) Secondary boycott a combination to exercise coercive pressure upon the
customers of an employer, actual or prospective, in order to cause them to or
withhold or withdraw patronage from him through fear of loss or damage to
themselves should they deal with him.
- Usually held to be illegal because of the principle that one not a party
to an industrial strife cannot, against his will, be made an ally of one of the parties
for the purpose of accomplishing the destruction of the other.
5. Lockout
Lockout is the temporary refusal of an employer to furnish work as a result of an
industrial or labor dispute.
Requisites:
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Shut-down
In a shut-down, the plant
ceases to operate.
A shut-down is the willful act
of the employer himself
following a complete lockout.
All shutdowns are lockouts, but not all lockouts constitute shutdowns.
5.2 Requisites of a Valid Lockout
a.) It should be declared only on grounds specified by law; and
b.) It should comply with the requirements prescribed by law.
5.3 Legal Grounds for Declaring a Lockout
a.) Collective bargaining deadlock (CBD)
b.) Unfair labor practice (ULP)
5.4 Legal Requirements of a Lockout
a.) Notice of lockout;
b.) Lockout vote;
c.) Lockout vote report
5.5 Notice of Lockout
Filed with the NCMB and served to the union, at least:
a.) 30 days before intended date if the ground is CBD
b.) 15 days before the intended date if the ground is ULP
5.6 Cooling-off Period
a.) 30 days from the filing of notice of lockout for CBD
b.) 15 days from filing the notice of lockout for ULP
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unlimited discretion to determine such industries. The courts cannot review this
exercise of discretion.
a.) Airline Company
b.) Educational Institutions
c.) Drug Company
d.) Medical Institution
e.) Export-Oriented Enterprise
f.) Tire Manufacturing Company
g.) Mining Company
h.) Brokerage Firm
6.3 Enforcement of Assumption/Certification Orders
- Such orders are immediately executory and are to be strictly complied with
even during the pendency of an MR or a petition questioning its validity.
- Upon issuance, the striking workers must therefore cease and desist from any
and all acts that undermine the authority of the Secretary regardless of the
validity of their claims or motives.
6.4 Effect of Defiance of Assumption/ Certification Orders
- An assumption/certification order automatically carries a RTWO even if the
directive to return to work is not expressly stated in the order.
- Strikers commit an illegal act if they defy the order. Consequently, they may be
declared to have lost their employment status.
- The moment a worker defies an assumption/certification order, he is deemed to
have abandoned his employment. The worker may then be validly replaced.
CASE
St. Scholasticas College vs. Torres
210 SCRA 565
NAFTEU filed a Notice of Strike against SSC on the ground of collective
bargaining deadlock. The Secretary assumed jurisdiction over the dispute.
Instead of returning to work, the Union filed an MR for the assumption order. The
MR was denied, but the strikers did not comply with the directive to return to
work.
Issue: W/N SSC can be compelled to accept the strikers who defied the
directive.
Held: NO. By defying the directive for them to return the work, the strikers were
deemed to have abandoned their employment.
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(c) No employer shall use or employ any strike-breaker, nor shall any
person be employed as a strike-breaker.
(d) No public official or employee, including officers and personnel of
the New Armed Forces of the Philippines or the Integrated National Police,
or armed person, shall bring in, introduce or escort in any manner, any
individual who seeks to replace strikers in entering or leaving the premises
of a strike area, or work in place of the strikers. The police force shall keep
out of the picket lines unless actual violence or other criminal acts occur
therein: Provided, That nothing herein shall be interpreted to prevent any
public officer from taking any measure necessary to maintain peace and
order, protect life and property, and/or enforce the law and legal order. (As
amended by Executive Order No. 111, December 24, 1986)
(e) No person engaged in picketing shall commit any act of violence,
coercion or intimidation or obstruct the free ingress to or egress from the
employers premises for lawful purposes, or obstruct public
thoroughfares. (As amended by Batas Pambansa Bilang 227, June 1, 1982)
COMMENT:
1. Limitations on the right to strike or lockout:
A strike or lockout cannot be declared:
A. Without first having bargained collectively
B. Without first having filed the notice of strike/lockout
C. Without the necessary strike or lockout vote first having been
obtained reported to the DOLE
D. After the SOLE assumes jurisdiction or certifies the dispute to
compulsory or voluntary arbitration
E. During the pendency of cases involving the same grounds for the
strike or lockout.
2. Limitations on the right to picket:
Persons or employees engaged in picketing are forbidden from:
A. committing any act of violence, coercion or intimidation
B. obstructing the free ingress to and egress from the employers premises
and
C. Obstructing public thoroughfares.
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Thus, any person who obstructs the free ingress to and egress from the
employers premises or who obstructs public thoroughfares may be
arrested without such consultation. Similarly, any person who shall have
in his possession deadly weapons such as knives, bolos, blunt or
pointed instruments and firearms or explosives may be arrested and
charged accordingly in court without consultation with the SOLE/
Chapter II
ASSISTANCE TO LABOR ORGANIZATIONS
Art. 267. Assistance by the Department of Labor. The Department of
Labor, at the initiative of the Secretary of Labor, shall extend special
assistance to the organization, for purposes of collective bargaining, of the
most underprivileged workers who, for reasons of occupation,
organizational structure or insufficient incomes, are not normally covered
by major labor organizations or federations.
Art. 268. Assistance by the Institute of Labor and Manpower Studies. The
Institute of Labor and Manpower Studies shall render technical and other
forms of assistance to labor organizations and employer organizations in
the field of labor education, especially pertaining to collective bargaining,
arbitration, labor standards and the Labor Code of the Philippines in
general.
COMMENT:
1.) Labor education
It is the duty of every legitimate labor organization to implement a labor
education program for its members on their rights and responsibilities as
unionists and as employees.
It is mandatory for every labor organization to conduct seminars and
similar activities on existing labor laws, collective agreements, company
rules and regulations and other relevant matters. The union seminars
and similar activities may be conducted independently or in cooperation
with the DOLE or other labor educational institutions.
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and
administration
of
labor
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4.
5.
6.
7.
8.
Chapter IV
PENALTIES FOR VIOLATION
Art. 272. Penalties. (a) Any person violating any of the provisions of
Article 264 of this Code shall be punished by a fine of not less than one
thousand pesos (P1,000.00) nor more than ten thousand pesos (P10,000.00)
and/or imprisonment for not less than three months nor more than three (3)
years, or both such fine and imprisonment, at the discretion of the court.
Prosecution under this provision shall preclude prosecution for the same
act under the Revised Penal Code, and vice versa.
(b) Upon the recommendation of the Minister of Labor and
Employment and the Minister of National Defense, foreigners who violate
the provisions of this Title shall be subject to immediate and summary
deportation by the Commission on Immigration and Deportation and shall
be permanently barred from re-entering the country without the special
permission of the President of the Philippines. (As amended by Section 16,
Batas Pambansa Bilang 130 and Section 7, Batas Pambansa Bilang 227)
COMMENT:
1.) Offenses Penalized Under 272
Art. 272 of the labor code penalizes the following violations of ART. 264:
1. Declaring a strike or lockout without having first bargained collectively
2. Declaring a strike or lockout without complying with the legal
requirements
9.
BOOK SIX
POST EMPLOYMENT
Title I
TERMINATION OF EMPLOYMENT
Art. 278. Coverage. The provisions of this Title shall apply to all
establishments or undertakings, whether for profit or not.
COMMENT:
Expanded Coverage of the Law on Dismissal
Under the previous law, the provisions of the Labor Code on termination
of the employment are extended to employees of entitites which are not
operated for profit or gain, such as educational, medical, religious, or
charitable institutions and organizations.
Purpose: to extend the employees of such entitites the same rights and
benefits granted to workers of industrial and commercial enterprises.
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upon her suspension for four (4) hours on representation of the ACEA, became a
permanent employee after she handed her resignation from the ACEA Union
personally to Jose E. Belmonte, the General Manager of the Progressive
Development Corporation.
From the facts of record, it is clear that the individual complainants were
dismissed because they refused to resign from the Araneta Coliseum
Employees Association and to affiliate with the Progressive Employees Union
which was being aided and abetted by the Progressive Development
Corporation.
7. Remedy for Illegal or Unjust Dismissal
-
Complaint for Illegal Dismissal (ID) filed with Labor Arbiter (LA) only
recourse available to EE who is illegally or unjustly dismissed
Art. 277 as the basis
Petition for injunction NOT THE REMEDY
o It is not a cause of action in itself but only a provisional
remedy- adjunct to the main suit.
o Art. 218 emphasizes that the power of the NLRC to issue
injunctive writ originates from any labor dispute
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
9. Reinstatement
Relief separate and distinct from Backwages
o Usually is a concomitant of Backwages; but the two are not
necessarily complements nor award of one is a condition
precedent to an award of the other
Simply means, restores the lost position (while Backwages restores
lost income)
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Business reverses
o If between time of wrongful discharge and proposed order of
reinstatement, ERs commercial or financial circumstances
have changed, ER (even if guilty of ULP) cannot be compelled
to reinstate such # of EEs as may exceed his needs under the
altered conditions
o Reason: ER cannot be compelled by an order of reinstatement
to give employment to greater # of persons that economic
operations of business required.
o But even though reinstatement is not possible, such condition
does not justify refusal or denying Backwages
Abolition of Position
o Position of ID EE has already been abolished, or theres no
substantially equivalent position reinstatement cannot be
carried out
Closure of business
o Reinstatement presupposes that the previous position from
which one has been removed still exists, or that there is an
unfilled position more or less of similar nature as the one
previously occupied by the EE
o If establishment closed its operations reinstatement
impossible
Incapacity of EE
o Fairness dictates that ER should not be compelled to reinstate
an EE who is no longer physically fit for the job from which he
was illegally ousted.
Attainment of Retirement Age
o EE held to be ID cannot be reinstated if he has reached
retirement age of 60 y/o
Conviction in Criminal case
o If EE was dismissed for offense constituting a crime (e.g. theft
of company property) and dismissal was held unjust,
consequence of which he was reinstated, subsequent
conviction will preclude his reinstatement and (payment of
Backwages)
Laches
o If reinstatement is not demanded within reasonable time, such
will be barred.
o This is to give justice to ER too; to allow the management to
conduct its business and affairs, considering the dismissal and
possibility of the dismissed EE resorting to court action to
vindicate his right to continue his employment
Cases:
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Petitioners would have us rule on whether or not the refusal of the private
respondent to reinstate them would make it liable to pay their salaries pursuant to
Republic Act No. 6715:
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Article 223 of the Labor Code, as amended by Republic Act 6715, pertinently
provides:
In any event. the decision of the labor Arbiter reinstating a dismissed or
separated employee insofar as the reinstatement aspect is concerned, shall
immediately be executory, even pending appeal. The employee shall either be
admitted back to work under the same terms and conditions prevailing prior to his
dismissal or separation or, at the option of the employer, merely reinstated in the
payroll. The posting of the bond shall not stay the execution for reinstatement
provided herein. (Emphasis supplied)
10. Backwages
-
xxx
Petitioners construe the above paragraph to mean that the refusal of the
employer to reinstate an employee as directed in an executory order of
reinstatement would make it liable to pay the latter's salaries. This interpretation
is correct. Under Article 223 of the Labor Code as amended, an employer has
two options in order for him to comply with an order of reinstatement, which is
immediately executory, even pending appeal. Firstly, he can admit the dismissed
employee back to work under the same terms and conditions prevailing prior to
his dismissal or separation or to a substantially equivalent position if the former
position is already filled up as we have ruled in Union of Supervisors (RB) NATU
vs. Sec. of Labor, 128 SCRA 442 [1984]; and Pedroso vs. Castro, 141 SCRA
252 [1986]. Secondly, he can reinstate the employee merely in the payroll.
Failing to exercise any of the above options, the employer can be compelled
under pain of contempt, to pay instead the salary of the employee. This
interpretation is more in consonance with the constitutional protection to labor
(Section 3, Art. XIII, 1987 Constitution). The right of a person to his labor is
deemed to be property within the meaning of constitutional guaranty that no one
shall be deprived of life, liberty and property without due process of law.
Therefore, he should be protected against any arbitrary and unjust deprivation of
his job (Bondoc vs. People's Bank and Trust Co., Inc., 103 SCRA 599 [1981]).
The employee should not be left with any remedy in case the employer
unreasonably delays reinstatement. Therefore, we hold that the unjustified
refusal of the employer to reinstate an illegally dismissed employee entitles the
employee payment of his salaries, effective from the date the employer failed to
reinstate despite an executory writ of execution served upon him. Such ruling is
in accord with the mandate of the new law awarding full backwages until actual
reinstatement (Article 279 of the Labor Code as amended.)
A form of relief that restores the income that was lost by reason of
unlawful dismissal
RATIO: an EE whose dismissal is found to be illegal is considered as
not having left his office so that he is entitled to all the rights and
privileges that accrue to him by virtue of the office that he held
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
10.6 No Backwages
-
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Only fair way to fix Backwages of irregular workers, like piecerate/seasonal, would be to determine what these workers would have
normally earned had they not been dismissed, using basis for that
purpose the wages actually earned by other irregular workers doing the
same kind of work who have not been dismissed.
o Considering such workers do not work continuously throughout
the year, it would not be fair to fix their Backwages as if they
had worked without interruption, otherwise, they would be
receiving compensation greater than those actually earned by
other irregular workers who were not separated from service
Once dismissed EE is re-employed, right to Backwages autoceases, otherwise double compensation would result.
10. 10 Other Benefits
-
Death
o
11.1 Concept of SP
-
11.2 Purpose of SP
-
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
closure of establishment,
abolition of position
reduction of personnel
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
violative of his security of tenure. RMC claimed that it never terminated the
services of AF. It merely demoted AF pursuant to company policy. NLRC,
finding that AF was not dismissed, ordered his reinstatement but without
backwages. Was the NLRC correct?
HELD: The NLRC was correct because the demotion of AF was valid and
justified. An employer, RMC is entitled to impose productivity standards for
its workers, and in fact, non-compliance may be visited with a penalty even
more severe than demotion. But the mere fact that AF did not report for work
after his demotion should not be construed as abandonment, considering
that he immediately filed a complaint for illegal dismissal. The filing of a
complaint for illegal dismissal is inconsistent with the idea of abandonment.
Accordingly, given that AF may not be deemed to have abandoned his job
and neither was he dismissed, the NLRC did not err in ordering his
reinstatement without backwages. In a case where the employees failure to
work was occasioned neither by his abandonment nor by a termination, the
burden of economic loss is not rightfully shifted to the employer; each party
must bear his own loss.
14. Liability of Corporate Officers
General rule: Corporate officers cannot be held personally or solidarily
liable with the corporation for backwages, damages or other money
claims of employees, even if they were impleaded in the complaint.
Obligations incurred by them, acting as such corporate agents, are not
heirs but the direct accountabilities of the corporation they represent.
This is so because a corporation is invested by law with a personality of
its own, separate and distinct from that of its stockholders and officers
who manage and run its affairs.
Exception: corporate directors and officers can be held personally or
solidarily liable with the corporation for backwages, damages or other
money claims of employees:
a) If the corporate officer acted in bad faith; or
b) If the corporation is no longer existing and unable to satisfy the
judgment in favor of the employee, in which case, the officers
should be held liable for acting on behalf of the corporation.
Usually, solidary liability is imposed upon the highest and most ranking
officer of the corporation.
In Aurora Land Projects vs. NLRC, solidary liability was imposed upon
the Administrator/Manager, he being the most ranking officer of the
corporation at the time of the dismissal of the employee.
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
In Naguiat vs. NLRC, solidary liability was imposed upon the President
of the corporation, he being the highest ranking officer who actively
managed the business.
Solidary liability, however, does not extend to the Vice President, unless
the VP happens to be the highest ranking officer, as when the President
of the corporation is the complainant himself.
To justify solidary liability, it must be shown that the officers of the
corporation deliberately or maliciously designed to evade the financial
obligation of the corporation to its employees, or a showing that the
officers indiscriminately stopped its business to perpetrate an illegal act,
as a vehicle for the evasion of existing obligations, in circumvention of
statutes, and to confuse legitimate issues.
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
4.
Classification of Employment
Article 280 classifies employment into 3 types:
a) regular or permanent
b) non-regular or temporary
c) casual
5.
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
c. Fixed-term employment
The activities performed by the employee are usually necessary or
desirable in the usual business or trade of the employer, but the law
does not consider them a regular employment because the engagement
of the employee is only for a limited period.
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Casual Employment
Casual employment is a job wherein the activities performed by the
employee are not usually necessary or desirable in the usual business
or trade of the employer.
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
MMI informed JAD that his work was unsatisfactory and had failed to meet the
required standards. To give him a chance to improve his performance and qualify
for regular employment, instead of dispensing with his service then and there,
with his written consent MMI extended his probation period for another three (3)
months. His performance, however did not improve and on that account MMI
terminated the employement of JAD at the end of the extended period.
ISSUE: Whether or not the 6-month probationary period of employment may be
validly extended by agreement of the employer and employee?
HELD: YES. The extension of the 6-month probationary employment was valid.
The extension of JADs probation was an act of liberality on the part of MMI in
order to afford him a chance to make good after having initially failed to prove his
worth as an employee. Such an act cannot now unjustly be turned against MMIs
account to compel it to keep on its payroll one who could not perform according
to its work standards. By voluntarily agreeing to an extension of the probationary
period, JAD in effect waived any benefit attaching to the completion of the said
period if he still failed to make the grade during the period of extension. There is
nothing in the law which by any fair interpretation prohibits such a waiver.
Termination of Probationary Employment
The services of an employee who has been engaged on a probationary
basis may be terminated for:
(a) Any of the causes enumerated in Articles 282, 283 and
284 of the Labor Code; or
(b) Failure to qualify as a regular employee in accordance
with reasonable standards made known by the employer
at the time of his engagement.
It is not necessary that the entire probationary period be exhausted
before the employment could be terminated.
o Termination may be done even before the expiration of the
probationary period.
Case: Manila Electric Co. vs. NLRC (178 SCRA 198)
FACTS: RM was hired by MERALCO as messenger on probationary status for
five (5) months. In the course of his employment, RM demonstrated a
performance that was not satisfactory. Because of this, MERALCO terminated
the probationary employment of RM on the fourth month.
ISSUE: Whether or not the dismissal was valid.
HELD: YES. RM was neglectful of his duties. He frequently played hookey,
taking the rest of the day off and not returning to the office after having performed
his errands. The fact that the dismissal was effected one (1) month before the
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
4. FRAUD
Is the knowing misrepresentation of the truth
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
b.
c.
d.
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
H. Pilferage
Philippine Airlines v. NLRC (279 SCRA 553)
FACTS: X and two other station loaders were ordered to handle the loading of
cargoes and pieces of baggage in PAL Flight bound for Manila. The SG allegedly
noticed private respondent taking something from one of the loaded baggage
and wrapping the same in his PAL service polo shirt. He allegedly threw
something into a nearby canal which, when later retrieved, turned out to be a
lady's wallet. X was dismissed.
ISSUE: Is the dismissal valid?
HELD: Yes. The act of taking a wallet of a passenger is tantamount to breach of
trust.
I.
J. QUALIFIED THEFT
United South Dockhandlers v. NLRC (267 SCRA 401)
FACTS: X ordered his subordinates to load the lamp posts into a cargo truck and
had them delivered to Adelfa Homeowners Association. X admitted he took the
subject lamp posts and manifested that it was unnecessary to conduct an
investigation. He returned the lamp posts upon USDI's demand. On May 25,
1993, he received his letter of dismissal.
ISSUE: Is X guilty of willful breach of trust?
HELD: YES. He occupied a position of trust and confidence. Petitioner relied on
him to protect the properties of the company. X betrayed this trust when he
ordered the subject lamp posts to be delivered to the Adelfa Homeowners'
Association. The offense he commits involves moral turpitude.
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
A.
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
towing/pushing procedure only when positive visual contact with all guidemen is
possible." The use of, "all necessary guidemen" indicates plurality or group
coordination. Thus, instead of relying solely on the signals of Camina, Pinuela
should have also checked with the other ground crew personnel.
D.
F.
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Nothing in this Code or in any other law shall stop the parties
from 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.
a.
8.2.1 LIMITATIONS
A.
B.
C.
D.
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
4.
5.
6.
7.
8.
Section 3. Work, Education or Training -Related, Sexual Harassment Defined. Work, education or training-related sexual harassment is committed by an
employer, employee, manager, supervisor, agent of the employer, teacher,
instructor, professor, coach, trainor, or any other person who, having authority,
influence or moral ascendancy over another in a work or training or education
environment, demands, requests or otherwise requires any sexual favor from the
other, regardless of whether the demand, request or requirement for submission
is accepted by the object of said Act.
(a) In a work-related or employment environment, sexual harassment is
committed when:
(1) The sexual favor is made as a condition in the hiring or in
the employment, re-employment or continued employment of
said individual, or in granting said individual favorable
compensation, terms of conditions, promotions, or privileges;
or the refusal to grant the sexual favor results in limiting,
segregating or classifying the employee which in any way
would
discriminate,
deprive
ordiminish
employment
opportunities or otherwise adversely affect said employee;
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Section 6. Independent Action for Damages. - Nothing in this Act shall preclude
the victim of work, education or training-related sexual harassment from
instituting a separate and independent action for damages and other affirmative
relief.
The said rules and regulations issued pursuant to this subsection (a)
shall include, among others, guidelines on proper decorum in the
workplace and educational or training institutions.
(b) Create a committee on decorum and investigation of cases on
sexual harassment. The committee shall conduct meetings, as the case
may be, with officers and employees, teachers, instructors, professors,
coaches, trainors, and students or trainees to increase understanding
and prevent incidents of sexual harassment. It shall also conduct the
investigation of alleged cases constituting sexual harassment.
Section 7. Penalties. - Any person who violates the provisions of this Act shall,
upon conviction, be penalized by imprisonment of not less than one (1) month
nor more than six (6) months, or a fine of not less than Ten thousand pesos
(P10,000) nor more than Twenty thousand pesos (P20,000), or both such fine
and imprisonment at the discretion of the court.
Any action arising from the violation of the provisions of this Act shall prescribe in
three (3) years.
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
COMMENT:
ECONOMIC JUSTIFICATIONS FOR TERMINATING AN EMPLOYMENT
1. Installation of labor saving devices
2. Redundancy
3. Retrenchment to prevent losses
4. Closing or cessation if operation of the establishment
Section 10. Effectivity Clause.- This Act shall take effect fifteen (15) days after its
complete publication in at least two (2) national newspapers of general
circulation.
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
RETRENCHMENT
Reduction of personnel due to actual or anticipated losses, lack of work,
or reduction in the volume of business
Retrenchment to prevent losses
o Art. 283, Labor Code
o An employer can adopt retrenchment measures even before
the anticipated losses are actually sustained
o Resorted to by an employer primarily to avoid or minimize
business losses
o The lawmaker did not intend that the losses shall have in fact
materialized before adopting retrenchment measures
Potential losses that are speculative cannot justify retrenchment
THE FOUR STANDARDS OF RETRENCHMENT (Substantive Requirements
of Retrenchment)
1. The expected losses should be substantial and not merely de minimis in
extent
2. That substantial loss apprehended must be reasonably imminent, as
such imminence can be perceived objectively and in good faith by the
employer
3. It must be reasonably necessary and likely to effectively prevent the
expected loss. It must be resorted to as a means of last resort, after less
drastic means, have been tried and found wanting or insufficient
4.
The alleged losses already realized and the expected imminent losses
sought to be forestalled, must be proven by sufficient and convincing
evidence
CLOSURE OF ESTABLISHMENT
Permanent closure
Temporary closure legal effect is governed by Art. 286 of the Labor
Code
The right to close the entire establishment carries with it the right to
close a part thereof, hence, closure may be TOTAL or PARTIAL
Can be exercised even if the employer is not suffering from serious
business losses or financial reverses
Must be done in good faith or with no intent to lockout its employees as
a means to coercing them to its demands
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
a.
b.
Art. 284. Disease as ground for termination. An employer may terminate the
services of an employee who has been found to be suffering from any
disease and whose continued employment is prohibited by law or is
prejudicial to his health as well as to the health of his co-employees:
Provided, That he is paid separation pay equivalent to at least one (1)
month salary or to one-half (1/2) month salary for every year of service,
whichever is greater, a fraction of at least six (6) months being considered
as one (1) whole year.
COMMENT:
CONDITIONS FOR TERMINATING AN EMPLOYMENT DUE TO ILLNESS
1. That the continued employment of the sick employee is prohibited by
law or is prejudicial to his health or to the health of his co-employees
2. That there is a certification from a competent 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 unit
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
The mere fact that an employee is suffering from a disease does not
ipso facto make him a sure candidate for dismissal
The required medical certificate cannot be dispensed with
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
resign. It was the option they chose. Thus, there is no illegal dismissal to speak
of.
SICANGCO V. NLRC (235 SCRA 96)
FACTS: The Company informed RS that his position will be declared redundant.
He was assured of benefits due him under the law. He did not protest. In fact, he
negotiated for, and was able to get, higher separation benefits. In accordance
with his agreement with the company and before the declared redundancy of his
position took effect, RS tendered his resignation. Accordingly, the company paid
him separation benefits. Thereafter, he filed a complaint for illegal dismissal.
ISSUE: W/N the resignation of RS was voluntary
HELD: YES. He resigned from his employment after he was informed that his
position has become redundant. There is no indication that he was coerced into
resigning from the company. There is nothing illegal with the practice of allowing
an employee to resign instead of being separated for just cause, so as not to
smear his employment.
ONE MONTH NOTICE
An employee who intends to voluntarily resign from his employment
should give his employer a written notice (resignation letter) at least one
(1) month in advance
WITHOUT 1-MONTH NOTICE employer can hold him liable for
damages
The employer cannot compel him to render service during the period as
it amounts to involuntary servitude.
PURPOSE OF THE ONE-MONTH NOTICE
To enable the employer to look for a replacement and therefore, prevent
a disruption of work
WAIVER OF THE ONE-MONTH RULE
The one-month notice may be waived by the employer
The rule requiring an employee to stay or complete the 30-day period
prior to the effectivity of his resignation is discretionary on the part of the
employer
PHIMCO INDUSTRIES V. NLRC (273 SCRA 286)
FACTS: On August 14, 1991, RC tendered his letter of resignation to take effect
on August 30, 1991. During the 15-day period, he continued to report for work. In
the meantime, no action was taken by the company with respect to his letter of
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
CASES
4.1 Serious Insult Upon the Honor and Person of the Employee
Where an employee who quits his employment after being demoted without just
cause.
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
CASES
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Title II
RETIREMENT FROM THE SERVICE
ART. 287. Retirement. Any employee may be retired upon reaching the
retirement age established in the collective bargaining agreement or other
applicable employment contract.
In case of retirement, the employee shall be entitled to receive
such retirement benefits as he may have earned under existing laws and
any collective bargaining agreement and other agreements: Provided,
however; That an employees retirement benefits under any collective
bargaining and other agreements shall not be less than those provided
herein.
In the absence of a retirement plan or agreement providing for
retirement benefits of employees in the establishment, an employee upon
reaching the age of sixty (60) years or more, but not beyond sixty-five (65)
years which is hereby declared the compulsory retirement age, who has
served at least five (5) years in the said establishment, may retire and shall
be entitled to retirement pay equivalent to at least one-half (1/2) month
salary for every year of service, a fraction of at least six (6) months being
considered as one whole year.
Unless the parties provide for broader inclusions, the term one
half (12) month salary shall mean fifteen (15) days plus one-twelfth (1/12)
th
of the 13 month pay and the cash equivalent of not more than five (5) days
of service incentive leaves.
An underground mining employee upon reaching the age of fifty
(50) years or more, but not beyond sixty (60) years which hereby declared
the compulsory retirement age for underground mine workers, who has
served at least five (5) years as underground mine worker, may retire and
shall be entitled to all the retirement benefits provided for in this Article.
Retail, service, and agricultural establishments or operations
employing not more than ten (10) employees or workers are exempted from
the coverage of this provision.
Violation of this provision is hereby declared unlawful and subject
to the penal provisions under Article 288 of this Code.
Nothing in this Article shall deprive any employee of benefits to
which he may be entitled under existing laws or company policies or
practices.
COMMENT
1. Retirement
Retirementis a withdrawal from office, public station, business, occupation, or
public duty upon reaching a certain age or after rendering a certain number of
years of service.
2. Retirement vs. Resignation
Retirement
Bilateral act of the employer
and employee.
Puts
an
end
to
the
employment relations upon
reaching a certain age or after
rendering a certain number of
years of service.
3. Retirement vs. Dismissal
Retirement
Bilateral act of both employer
and employee.
Resignation
Unilateral act of en employee.
Terminates
employment
relations with the employer for
personal reasons.
Dismissal
Unilateral act of an employer
in terminating the services of
an employee for cause.
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
Retail establishment is a business entity principally engaged in the sale of goods to endusers for personal or household use. It loses retail character if it engages in both retail and
wholesale of goods.
5
Service establishment is a business entity principally engaged in the sale of service to
individuals for their own or household use and is generally recognized as such.
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
b.) Cash equivalent of not more than 5 days of service incentive leave;
and
th
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
BOOK SEVEN
TRANSITORY AND FINAL PROVISIONS
Title I
PENAL PROVISIONS AND LIABILITIES
three years, or both such fine and imprisonment at the discretion of the
court.
In addition to such penalty, any alien found guilty shall be summarily
deported upon completion of service of sentence.
Any provision of law to the contrary notwithstanding, any criminal offense
punished in this Code, shall be under the concurrent jurisdiction of the
Municipal or City Courts and the Courts of First Instance. (As amended by
Section 3, Batas Pambansa Bilang 70)
1. Criminal offenses under the labor code
Not every violation of the Labor Code constitutes a criminal offense.
Only those violations which the Labor Code declares to be unlawful or
penal in nature are considered as criminal offenses.
2. Offenses Penalized under the General Penalty
The ff.offenses are penalized under the general penalty clause set forth
in Article 288 of the Labor Code:
a) Taking up employment by a non-resident alien without an Alien
Employment Permit
b) Transferring to another job or changing employer by a nonresident alien after the issuance of the Alien Employment
Permit without prior approval of the SOLE
c) Violation of Chapter II, Book two of the Labor Code regarding
the employment of learners
d) Demanding or accepting more than 10% attorneys fees in any
judicial or administrative proceedings for recovery of wages
e) Withholding any amount from the wages of a worker; or
inducing him to give up any part of his wages by force, stealth,
intimidation, threat, or by any other means whatsoever without
the workers consent.
f) Making deductions from the wages of an employee for the
benefit of the employer or his representative or intermediary in
consideration of a promise of employment or retention of
employment
g) Refusal to pay or reducing the wages and benefits or,
terminating an employment or committing discriminatory acts
against an employee who has filed a complaint, testified or is
about to testify in proceedings under Title II, Book Three of the
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A.
B.
Demanding/charging
fees
for
handling
of
employees
compensation cases or retaining/deducting any amount from the
compensation benefits of an employee in payment for handling the
compensation claim.
o Article 203 of the Labor Code
C.
D.
h)
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Title II
PRESCRIPTION OF OFFENSES AND CLAIMS
Art. 290. Offenses. Offenses penalized under this Code and the rules and
regulations issued pursuant thereto shall prescribe in three (3) years.
All unfair labor practice arising from Book V shall be filed with the
appropriate agency within one (1) year from accrual of such unfair labor
practice; otherwise, they shall be forever barred.
1. Reckoning Date of the 3-year prescriptive period
Offenses penalized under the labor code prescribe in 3 years. The labor
code is silent as to when the three-year period should be reckoned.
Such being the case, Sec. 2 of Act 3326, as amended, entitled An act
to establish periods of prescriptions for violations penalized by special
acts and municipal ordinances and to provide when prescription shall
begin to run, should be applied.
The three-year period for offenses penalized by the Labor Code should be
reckoned :
a) From the day of the commission of the violation, if such commmission
be known; or
b) From discovery of the violation and institution of judicial procedings for
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Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos
done earlier;
it is negligence or omission to assert a right within a reasonable time,
warranting a presumption that the party entitled to assert is either has
abandoned or declined to assert it.
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COMMENT:
The appropriate entities having jurisdiction over money claims
If there is a demand for reinstatement, money claims of workers should
be filed with the Regional Arbitration Branch of the NLRC regardless of
the amount involved.
If there is no demand for reinstatement, the ff are the rules:
a) If the aggregate claim of each employee does NOT exceed
P5,000, the money claim should be filed with the Regional
Director of the DOLE
b) IF the aggregate claim of each employee exceeds P5,000, the
money claim should be filed with the Regional Arbitration of the
NLRC.
Claims from employees compensation should be filed with the SSS (for
employees in the private sector) or with the GSIS (for employees in the
public sector), in accordance with the rules and regulations laid down by
the Employees Compensation Commission.
Addie Celerian * Amor Venenoso * Draei Dumalanta * Ellan Cipriano * Ingrid Prado * Mary Ang * Rica Casiquin * Sam Santos