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LL2 - TRANS NOTES AND COMMENTS BY DEAN POQUIZ (DIZONxRUIZ, 2016x2018
LL2 - TRANS NOTES AND COMMENTS BY DEAN POQUIZ (DIZONxRUIZ, 2016x2018
• The purpose of LabRel is to align the differences b/w ER-EE 5 years experience in Labor 5 years experience in Labor
so that there will be peace, tranquility and order. management management
Q: The gov’t and the public are passive parties, BUT (1) CONTEMPT POWER OF NLRC
may the gov’t be an active party in this case? • It is to preserve the dignity of the commission. Direct
A: YES. For purposes of resolving the VID. contempt, pursuant to the NLRC 2011 Rules and Procedure
of Labor Code. Indirect contempt, pursuant to Rule 71 of the
• The Pres or the Sec. of Labor (gov’t) can assume such Rules of Procedure.
jurisdiction over LD in PAL in order to protect national
interest. (2) INJUNCTIVE POWER
• The NLRC can issue of TRO or a writ of injunction. These
Q: What happens if the gov’t does not intervene? must be issued upon the observance of due process. The
A: In terms of economy, there will be no income on the part of TRO may be issued even without a hearing. However, in
the ER. There will be no wages, salaries on the part of the EE. issuing a writ of injunction there must be a hearing to be
In terms of economy of the nation, affected. In terms of the conducted.
production of the workers, if there is a strike, then there will be • The NLRC may issue a TRO ex parte or without the
no work. This is why the gov’t can intervene. presence of the other party because it is a mere
interlocutory order prior issuance of the writ of injunction.
Q: Under what procedure can the gov’t intervene? BUT in the case of writ of injunction, a hearing must be
A: By assuming jurisdiction over LD in an industry conducted.
indispensable to national interest.
(3) POWER TO RESOLVE CERTIFIED CASES UNDER ART.
BODIES TO IMPLEMENT LABREL: 263-G OF THE LC (ASSUMPTION POWER)
1. Office of the President
2. DOLE Q: How may the Pres of Sec. of Labor assume jurisdiction
3. Regional offices of the DOLE over a VID?
4. NLRC A: The ER or the union may petition or do a joint petition or
5. Regional Arbitration Branches of the NLRC motu proprio.
6. Bureau of LabRel
7. National Conciliation and Mediation Board • Under Art. 263-G, the nature of this assumption power is
(PFCD) plenary, full, complete & discretionary.
NATIONAL LABOR COMMISSION
• Nature of composition of the NLRC: Q: Can the EE & the union compel the Sec. of Labor to
- It is a tripartite body, trisectoral composition assume jurisdiction?
- Its compositions comes from the: A: NO, it is discretionary. The Sec. of Labor has a wide
1. government sector latitude of discretion.
2. management
3. labor sector LEGAL EFFECTS OF AN ASSUMPTION ORDER:
1. It has the effect of writ of injunction.
• The NLRC sits en banc only of instances of policy 2. A return to work order is deemed written in the AO.
determination and promulgation of the IRR. - There are cases where the Sec. of Labor had a separate
return to work order.
Q: How may the NLRC exercise its quasi-judicial powers? 3. Striking workers should return to work, otherwise, they are
A: It is exercised thru the different divisions. There are 8 deemed to have lost their employment status or they can
divisions. In each division, there are 3 commissioners. The be dismissed upon compliance with due process.
Notes and comments by Dean Salvador A. Poquiz Page 1 of 17
e) Gross and habitual neglect of duties • There is no prohibition for the ER to embark on
- because of the EE’s gross negligence, it caused the ER a retrenchment if he could perceive that its economy will go
tremendous damage down the drain.
ex. Manager assigned in a very delicate position but he failed
to perform his functions. Several company properties were c) Redundancy
spirited out unknowingly by such manager. This will justify - it is no the duplication in work function;
dismissal. - a position is redundant when it is superfluous. Superfluity is
- there were some cases where in although not habitual, but the outcome of some factors:
if it is gross, then that will justify dismissal (a) Over-hiring of workers
(b) Decline in the volume of business
f) Other analogous causes (c) Closure of a particular line of an economic activity
1. violation of company rules previously engaged by the ER
2. unauthorized absences - there are excess services that are NOT needed by the ER.
3. serious insult/ unbearable treatment of ER These surplus over-hired additional works are NOT needed
4. abandonment by the ER, so they must be discharged.
- over acts/ willful intention to ever ER-EE Requirements:
relationship; there must be willful, deliberate 1. 2 separate notice rule - notice to the DOLE and
refusal not to return. The ER must notify the 30 days notice to the EE to be discharged;
employee, still need to observe the 2-notice rule 2. It must be done in good faith
but w/o hearing 3. There must be payment of separation pay - full
month pay for every year of service
2. AUTHORIZED CAUSE DISMISSAL
- this is initiated by the ER; d) Disease
- mandates payment of the separation pay; - the ER must prove it by way of medical certificate issued by
a gov’t hospital/ clinic or doctor;
Notes and comments by Dean Salvador A. Poquiz Page 4 of 17
There are attorney’s fess in ordinary concept: Where to File Illegal Dismissal:
a) lawyer/ retainership fees • Regional Arbitration Branch of the NLRC having territorial
b) acceptance/ appearance fess jurisdiction of the workplace of the complainant.
• RAB – “over the workplace”
4. 6% legal interest on monetary award to the
illegally dismissed EE
A. Before it is filed with the LA:
Twin relief of illegal dismissal • It will be filed with the Single Entry Approach Proceeding
Reinstatement and payment of full backwages from the (SENA).
time he was illegally dismissed until he was actually Purpose: Amicable Settlement
reinstated.
B. If SENA is terminated because there is no
INSTANCES WHEN REINSTATEMENT IS NOT PROPER: settlement reached by the parties, it will now be
a) Dismissal for Cause raffled with the LA.
b) Employee does not want to be reinstated
c) Laches or Waiver 1) Once it has been received by the LA,
• Unreasonable Delay in claiming your right to - it will be scheduled for the first 2 preliminary conference
reinstatement (PC) for the purpose of amicable settlement.
- Employee can still look for a job while waiting for the • It is a mere duplication of SENA.
outcome of his case, and even if there is already an - There is no prohibition upon the LA to grant another
order of reinstatement, he cannot be charged that the PC if it was moved by one or both parties. Although
has already waived his right to be reinstated because in there are only 2 PC under the rules, it may still be
the meantime, he is earning to feed his family. granted, even if not provided in 2011 Rules of
Procedure.
d) Strained relationship w/ the ER
• This cannot be used by the ER just to thwart or frustrate BASIS: ART. 221
reinstatement • “Technical rules are not binding and prior resort to amicable
- There should be extreme reasons to justify strained settlement”
relationship - Relaxed in labor proceedings because the purpose is
- There should already be sever antagonism where the administration of speedy labor justice.
ER and EE cannot look at each other eye to eye
anymore 2) If after the PC, there is no settlement reached:
- As a form of compromise to reinstatement a) The LA will require the parties to simultaneously
o Backwages and Separation Pay submit position papers
- This is called Position Paper Proceeding
e) The position was already abolished or filled-up - Not a violation of due process because
- Legal Impossibility the parties are already given
- He should be reinstated in a substantially equivalent opportunity to be heard
position - This is substantial compliance with due
- If this cannot be done, the remedy is payment of process
separation pay plus backwages as a form of OR
compromise. b) The LA can go on with the case on a trial type
proceeding
f) Prescription is four (4) years - Subject to LA’s discretion and not the parties.
- Four (4) years also in illegal dismissal cases
3) If the position papers were submitted on the scheduled date
g) Physical Disability - They will require a reply
- May undergo medical examination to determine fitness to • A reply under the rule is the last pleading.
work. • Submitted for resolution (30 days), while OFW cases
• If you have a contagious disease, you cannot be (90 days)
reinstated
- Occupational disease is compensable 4) After a decision is rendered and there is a finding of illegal
dismissal:
Personal Comfort Doctrine - The reinstatement is immediately self-executory
- Providing comfort and convenience - No more writ of execution
- Injury or death is compensable
- Act of State If you were the Lawyer, ask the Client if he would APPEAL
- Not conducive to working harmony or NOT!
- Employee is too old • If they file a MOTION FOR RECONSIDERATION, he must
- Law does not provide reinstatement comply with the requirements of appeal.
• Kasambahay Law; Migrant Workers Act; Kulangot - In one SC decision, MR was treated as a mode of
Doctrine appeal.
- Principle of Fiduciary Relationship
• Upon receipt of the decision of the LA, you have 10
PROCEDURE IN ILLEGAL DISMISSAL CASES calendar days to appeal.
Notes and comments by Dean Salvador A. Poquiz Page 6 of 17
Q: Does the LA fix the amount of the bond? Q: What should be included in the petition?
A: No. LA is not allowed to fix the appeal bond. The law A: Three essential dates
itself fixes the appeal bond - Date of receipt of the decision of the NLRC
- Date when MR was filed
Q: How much are you going to post? - Date of receipt of the denial of the MR
A: Reasonable amount of the bond
Q: In your petition to the Court of Appeals
Q: Can the appellant employer file to reduce bond? A: Submit 3 hard copies and the soft copy & pay the
A: Yes, but should be filed during the reglementary period docket fees and other fees.
to appeal accompanied by posting a reasonable amount of
the bond. 2. If duly receive by the CA, it will be raffled.
• The raffling of cases in the CA is always
Q: What is he did not post a reasonable amount of the observed and participated by one justice.
bond, instead he posted 10% of the monetary award. Is • Every raffling day, there is assigned justice of
this allowed? CA.
A: In the case of Mcburnie v Ganzon, 10% is allowed but
applicable only for the purposes to reduce the bond but 3. Before it is assigned to a Justice member, there will be
not to perfect an appeal another consultation
- To prevent one-man decision
Q: What if he filed to reduce bond but did not post bond,
what is the legal effect? Q: What if the petition is lacking in form because he
A: The decision of the LA will become final and executory only attached photocopied documents?
under the Doctrine of Immutability of Final Judgment. A: They will ask you to submit certified copies; The
XPN: Backwages are continuous/addup until fully CA may require the other party to submit a comment,
satistfied; Can file motion for recomputation of backwages answer, or reply.
even if decision is already final
Q: Upon submission of the petition, what is the other
d. Personal Service party was not notified to submit a comment? Can you
submit a comment without being notified?
e. Approval of the record of appeal A: Yes. Submit with leave of court.
• XPN to Bond:
Notes and comments by Dean Salvador A. Poquiz Page 7 of 17
Q: Under the Constitution and Labor Code, what is the 2. CONSENT ELECTION
labor organization that is contemplated? - Election voluntarily agreed upon by 2 or more unions, w/
A: Legitimate labor organization – one that is registered or w/o intervention of the RO of DOLE, to conduct an
either with the BLR or RO of the DOLE. election to determine the bargaining agent in the
bargaining unit.
REQUIREMENTS FOR REGISTRATION - Between & among unions in the unit, they have
–— to be legitimate labor organization consented among themselves to conduct an election.
1. Payment for registration fee
2. Submission of the constitutional bylaws 3. CERTIFICATION ELECTION (CE)
3. Names of officers and members - The process of determining thru secret ballot, the sole
4. In case of first time registration: and exclusive bargaining agent of the employees in an
- Minutes of the org meeting by Sec/ Treasurer of the appropriate bargaining unit, for the purposes of collective
union requested by President bargaining.
• If the union is already existing for some time:
- Financial statement of the union • Sole concern Rule
- It is the sole concern of the workers/ employees
• Upon submission, it is now ministerial on the part of the RO
of the DOLE to issue a certificate of registration • Bystander Rule
compellable by Mandamus. - The employer, who has no legal standing, is a
mere bystander in certification election
LEGAL EFFECTS OF REGISTRATION: - Limited to being notified or informed of the filing
(Rights of a legitimate labor organization) of the petition for CE
1. Right to representation XPN: May file a petition for certification
- This applies ONLY to union members election in order to determine WON this
2. Right to be certified as the bargaining agent in the union has the majority status
company
- Applies to ALL employees • Best Forum Rule
3. Right to sue and be sued in its registered name - Most efficacious, most expeditious manner in
4. Right to own property determining the will of the employees
5. Right to tax exemption
6. Right to engage in activities that redounds to the welfare • Double Majority Rule
of the members of the union - First Majority Rule
7. Right to be copy furnished w/ the audited financial • At least a majority of all eligible voters in
statement of ER – upon request of union the bargaining unit must have cast their
- Employer will ONLY be liable for ULP (Surface votes
Bargaining) if there is request coming from the union. - Second Majority Rule
- Audited FS should be prepared by an independent, • The union receiving the majority of the
credible, external auditor. Not company auditor valid votes shall be certified as the
otherwise it would be self–serving. exclusive bargaining agent (provided for
all contending unions, 50% of the votes
THE RIGHT TO BE CERTIFIED AS COLLECTIVE have been validly cast)
BARGAINING AGENT
4. RE-RUN ELECTION
Q: What is Agency Shop/ Treasury Shop/ Anti-Hitchhiker - Subsequent certification election
Clause / Anti- Free Rider Clause? - 3 instances:
A: Requires non-members to pay fees equivalent to the a. There is failure of Certification Election as
amount of union dues. declared by the election officer (below 50% votes
cast)
Q: Is there still a need to conclude an agency shop to be b. There is a tie between 2 unions
concluded by the parties in the CBA? c. There is a tie between a union and a non-union
A: No more need because law itself provided agency
shop. It’s in the law stating that non-union members who 5. RUN-OFF ELECTION
received CBA benefits are required to pay fees (agency - Automatic second election rule: 50% votes cast but no
fees) equivalent to the amount of union dues to support one garnered majority vote
the union that made the benefits possible. - When an election which provides for 3 or more choices,
- Or else there will be unjust enrichment. results in no choice receiving a majority of the valid
votes cast, the election officer shall motu proprio
MODES OF DETERMINING COLLECTIVE BARGAINING conduct a run-off election bet. the labor unions receiving
AGENCIES IN THE BARGAINING UNIT the 2 highest number of votes.
- Provided that the total number of votes for all
1. SEBA (Sole Exclusive Bargaining Agent) contending unions is at least 50% of the number of
CERTIFICATION votes cast.
Notes and comments by Dean Salvador A. Poquiz Page 13 of 17
Vote requirement Q: What if there were negotiations, at the end of the 3rd
• 50% majority vote year the terms and conditions were approved by the
parties, ratified by the employees.
Q: What if the 25% consent requirement is not complied
with, may a CE be conducted? What is the duration of the validity of such terms and
A: Discretionary upon the RO of the DOLE to conduct CE. conditions re-negotiated not later than the end of the 3rd year
Reason: Because in conducting CE, even if 25% is not of 5-year representation aspect of the CBA?
met, this is the most expeditious manner in determining A: Period of validity – 2 years
will of employees.
Q: What if the 5-year representation aspect of the CBA (old
Q: If below 50% there is no valid CE – there is failure of CBA) expired, no new CBA has been agreed upon, is there
CE. If there is failure, what is the legal effect? hiatus bet. the relationship of employees to the union?
A: Re-run election. If there is failure, w/in 6mos, by motion, A: NONE. Automatic Renewal Clause
a CE can be filed. - Law provides that the old CBA will subsist under the
principle of CBA continuity.
Q: Who declares failure of CE?
A: Election officer Q: What if CBA exists, and during the lifetime of the CBA,
there was a change in the CB Agent. Effect?
Q: If 50% has been complied with but no one garnered A: Still valid, but there is no prohibition upon the new CB
majority vote, what is the legal effect? agent to shorten the life of the CBA.
A: Run-off election. Automatic 2nd election. Legal basis:
• New CB agent can move for shortening on the
NO UNION ground that nature of CBA is a contract in
• Situation wherein there are 3 or more choices but a “no personam.
union” won: • Substitutionary doctrine: allows the
- A no union may win on account of freedom of religion. substitution of the old CB Agent with the new
There are religious groups allowed by law not to form CB agent – but it will not affect the validity of
unions (Iglesia ni Cristo) CBA contracted by old CB agent.
- A non-union cannot exist in a run-off election.
60 DAY FREEDOM PERIOD
Q: Why does the constitution allow certain religious groups • CE shall be conducted in the 60-day freedom period
NOT to join labor unions? • Can also file a petition for intervention during this period.
A: Bec. Freedom of religion is freedom of conscience • Federations can also file petition for disaffiliation from the
federation of a member union.
Q: If a no union won, does the law allow that in a
bargaining unit, there will be no union for some time? 2. ONE-YEAR CERTIFICATION BAR RULE
A: No union situation rule will be allowed only for 1 - No CE conducted within 1 year following the final
YEAR. There will be a certification to that effect that in the election results
meantime for 1 year, there will be no union. Those - CE may not be held within 1 year from the date of
religious groups may still vote in CE by voting “no union”. issuance of final certification result (there was an actual
conduct of elections)
WHO CAN VOTE IN A CERTIFICATION ELECTION - Applies to all modes of determining CB agencies
• ALL rank and file employees
• Probationary employee 3. DEADLOCK BAR RULE
• Dismissed employee - CE cannot be conducted during the existence of a
- Provided he contested his dismissal. bargaining deadlock
- If he contested, that means the EE-ER relationship is - During the bargaining process, bargaining may break
just suspended. down, economic concessions cannot be given out by the
employer – it will create a deadlocl
Q: Do you determine the eligibility of voters in the CE? - When you file a notice to strike due to bargaining
A: NO. The CE is not proper forum. The proper forum is deadlock – it prohibits filing of CE
the “Inclusion-Exclusion” proceedings or the pre-
election conference. 4. OUTSIDE THE FREEDOM PERIOD RULE
- A petition for CE or Motion for Intervention filed before/
INSTANCES WHERE CE IS BARRED/ CANNOT BE after the freedom period – shall be dismissed outright.
CONDUCTED – despite compliance with 25% consent
requirement 5. NEGOTIATION BAR RULE
- No representation issue may be entertained, if before
1. CONTRACT BAR RULE the filing of a petition for CE, the certified bargaining
- CE may not be conducted during existence of the CBA union has commenced negotiations with the employer w/
in 1year from date of mode of determining CB agencies.
Notes and comments by Dean Salvador A. Poquiz Page 14 of 17
Q: May a local chapter become a full legal • SC: The title or nomenclature is not important, what is
person? important is the BODY which provides the proviso that the
A: Yes. By submission only of the requirements union member must maintain his membership in good
of the law standing in order to retain his employment. If not there –
• Charter certificate construed against its existence
• Consti bylaws - A closed shop agreement must be accompanied by
• Names of officers & addresses maintenance of membership shop
• Local chapter’s location and address - In union shop, once employed, you must maintain
membership with the contracting union and must
INSTANCES WHERE CERTIFICATION ELECTION IS maintain good standing also.
ALLOWED
(Exceptions to the Contract Bar Rule) Q: Assuming closed-shop agreement is valid, can the
1. CBA is not registered union request the ER to dismiss an expelled union
- CBA is the law of the plant member?
• It shall be approved by the parties, ratified by the A: Yes. Upon request of the union.
employees, and registered to the RO of the DOLE
- Purpose of registration: To bar CE Q: If you are a lawyer of the ER, what will you advise if
- IF not registered: Any legitimate labor union can file there was a request from the union to expel the said EE
for CE. pursuant to the closed-shop agreement?
A: I will advise ER to observe due process. If ER did not
2. CBA is incomplete/ inadequate comply with due process even if there was a closed-shop
- Because of the collusion of the ER and the union, the agreement, it may amount to illegal dismissal.
contract became a sweetheart contract that does not - If ER observed due process – the only relief that may
provide substantial economic benefits to the workers. be imposed to the ER is REINSTATEMENT.
- The terms and conditions are substandard, o For other benefits: the union will be liable.
incomplete and inadequate.
- Will not bar CE (2) COMMON FORMS OF UNION SECURITY CLAUSES
(Enumeration, Dizon Notes p. 21)