labor relations box questions - azucena- final.doc

8/10/2019 Labor Relations Box Questions - Azucena- final.doc

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Bukidnon State University College of Law

Batch 2014 Page 1

Book FiveLabor Relations

Title IPolicy and Definition

Chapter I - Policy

Box 1

1. What are the policy objectives of our labor

relations law?

Ans.: It is the policy of the State;

a.

To promote and emphasize the primacy of

free collective bargaining and negotiations,

including voluntary arbitration, mediation

and conciliation, as modes of settling labor

or industrial disputes;

b. To promote free trade unionism as an

instrument for the enhancement of

democracy and the promotion of social

justice and development;c. To foster the free and voluntary

organization of a strong and united labor

movement;

d. To promote the enlightenment of workers

concerning their rights ansd obligations as

union members and as employees;

e.

To provide an adequate administrative

machinery for the expeditious settlement

of labor or industrial disputes;

f. To ensure a stable but dynamic and just

industrial peace; andg. To ensure the participation of workers in

decision and policymaking processes

affecting their rights, duties and welfare.

2. Employer-employee relationship must exist so

that labor relations may apply within an

enterprise. What factors determine the

existence of such relationship?

Ans.:

The existence of employer-employee

relationship is determined by the presence of

the following elements;

a.

Selection and engagement of the

employee

b.

Payment of wages

c. Power to dismiss; and

d.

Power to control the employees

conduct.

3. What are considered labor disputes? What are

the available remedies?

Ans.:

Labor disputes are any controversy or

matter concerning terms and conditions of

employment or the association or

representation of persons in negotiating, fixing,

maintaining, changing or arranging the terms

and conditions of employment, regardless of

whether the disputants stand in the proximate

relation of employer and employee.

Remedies in Labor Disputes;

a.

Grievance procedure.

b. Conciliation

c.

Mediation

d. Enforcement or compliance order

e.

Certification of bargaining

representatives.

f.

Arbitration (either Voluntary or

Compulsory).

g. Assumption of jurisdiction

Per Angusta Ad Augusta

------------ through difficulties to honors


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h.

Certification of NLRC

i. Injunction.

j.

Judicial action

k. Appeal.

l.

Review by Court.

m.

Compromise agreement.

Title IINational Labor Relations Commission

Chapter ICreation and Composition

Box 2

1. What is the NLRC?

Answer: The NLRC is the National Labor

Relations Commission. It exercises exclusive

appellate jurisdiction over cases decided by the

Labor Arbiter.

2. Is the NLRC independent of the Department of

Labor and Employment?

Answer: Yes. It is attached to the DOLE for

program and policy coordination only. The

Secretary of Labor merely exercises

administrative supervision over the NLRC. Such

supervision does not extend to the power to

review, reverse, revise or modify decisions of

the NLRC in the exercise of its judicial

functions.

3. How is the NLRCs adjudicatory powers

distributed?

Answer: The NLRC shall exercise its

adjudicatory and all other powers, functions

and duties through its divisions. The division

is a legal entity, not the persons who sit in it.

The law lodges the adjudicatory power on each

of the 8 divisions, not on the individual

commissioners nor on the whole commission.

Chapter IIPowers and Duties, contd

Box 3

1. What is RAB? Regional Arbitration Board

Regional Arbitration Branch" shall

mean any of the regional arbitration

branches or sub-regional branches of the

Commission.

2. What cases fall within the jurisdiction of the

Labor Arbiter?

Art. 217. Jurisdiction of the Labor Arbiters and the

Commission.

1.

Except as otherwise provided under this Code, the

Labor Arbiters shall have original and exclusive

jurisdiction to hear and decide, within thirty (30)

calendar days after the submission of the case by

the parties for decision without extension, even in

the absence of stenographic notes, the following

cases involving all workers, whether agricultural or

non-agricultural:

1.

Unfair labor practice cases;

2.

Termination disputes;

3.

If accompanied with a claim for reinstatement,

those cases that workers may file involving wages,

rates of pay, hours of work and other terms and

conditions of employment;

4. Claims for actual, moral, exemplary and other

forms of damages arising from the employer-

employee relations;

5.

Cases arising from any violation of Article 264 of

this Code, including questions involving the legality

of strikes and lockouts; and

6.

Except claims for Employees Compensation, Social

Security, Medicare and maternity benefits, all other

claims arising from employer-employee relations,

including those of persons in domestic or

household service, involving an amount exceeding

five thousand pesos (P5,000.00) regardless of

whether accompanied with a claim for

reinstatement.

3. What are Corporate Disputes? Who has

jurisdiction over them?

Corporate disputesare controversies arising out of

intra-corporate or partnership relations, between and


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among stockholders, members, or associates; between

any or all of them and the corporation, partnership or

associates of which they are stockholders, members or

associates respectively; and between such corporation,

partnership or association and the state insofar as it

concerns their individual franchise or right to exist assuch entity.

Jurisdiction Over Intra-Corporate Disputes

Transferred from SEC to RTC

4. Where is the venue of the compulsory

arbitration cases?.

All cases which Labor Arbiters have

authority to hear and decide may be filed in

the Regional Arbitration Branch having

jurisdiction over the workplace of the

complainant or petitioner.

Chapter IIPowers and Duties contd (Part 2. Powers)

Box 4

1) What are the powers of the NLRC? (See Art 218 o

f LC, now Art 224, 2013 Codal)

>> POWERS OF THE COMMISSION

(i) RULE-MAKING POWER

The Commission has the power to promulgate

rules and regulations:a) governing the hearing and dispostition of

cases before it and regional branches;

b) pertaining to its internal functions

c) those that may be necessary to carry out t

he powers of this Code.

(ii) POWER TO ISSUE COMPULSORY PROCESSES

The Commission has the power to :

a) administer oaths;

b) summon parties;

c) issue subpoenas ad testificandum and duc

es tecum

(iii) POWER TO INVESTIGATE AND HEAR DISPUTES

WITHIN ITS JURISDICTION

The Commission has the power to:

a) conduct investigations for the determinat

ion of a question, matter or controversy within

its jurisdiction;

b) proceed to hear and determine the dispu

tes in the manner laid down under paragraph (c)

Art. 218 (now Art 224, 2013 Codal)

(iv) CONTEMPT POWER

The procedures and penalties thereof are pr

ovided under paragraph (d) Art. 218

(now Art. 224 , 2013 Codal)

(v). POWER TO CONDUCT OCULAR INSPECTION

Under Art 219 (now Art. 225), the chairman,

any commissioner, labor arbiter or their duly

authorized representatives may, at any time

during working hours:

a) conduct an ocular inspection on any establishment, building, ship or vessel, place or

premises, including any work, materiak, i

mplement, machinery, appliance or any object

therein;

b) ask any employee, laborer or any perso

n, as the case may be, for any information or

data concerning any matter or question

relative to the object of the investigation.

Note: Author believes this power is adjunct to the adju

dicatory function and exercised only to assist or

expedite adjudication or a pending dispute. Not

meant to duplicate the visitorial-enforcement

authority under Art 128.

(vi) ADJUDICATORY POWER

Original: Each of the NLRC has original jurisdi

ctions over petition for injunction or temporary restraini

ng order under Art. 218 (e). It also had the original jurisd

iction to hear and decide "National Interest" cases certif

ied to it by the Sec.of Labor under Art. 263 (g).

Appellate: The NLRC has exclusive appellate

jurisdiction over all cases decided bu the lanor arbiters a

nd the DOLE regional director or hearing of officers und

er Art. 219.

(vii) POWER TO ISSUE INJUNCTION OR TEMPOR

ARY RESTRAINING ORDER


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See Art 218 par. [e]

2) Injunction is frowned upon in labor disputes. Wh

at are the pre-conditions before an injuctive writ be is

sued?(See Art 218 par. [e]) (Art 224, 2013 Codal)

>> As a rule, restraining orders or injunctions do no

t issue ex parte and only after compliance with the follo

wing requisites, to wit:

a. a hearing held "after due and personal notice there

of has been served, in such a manner as the Commi

ssion shall direct, to all known persons against who

m relief is sought, and also to the Chief Executive a

nd other public officials of the province or city with

in which the unlawful acts have been threatened or

committed charged with the duty to protect complainant's property;

b. reception at the hearing of "testimony of witnesses

, with opportunity for cross-examination, in suppor

t of the allegations of a complaint made under oath

," as well as "testimony in opposition thereto, if off

ered x x";

c.

"A finding of fact by the Commission, to the effect:

(1) that the prohibited or unlawful acts have bee

n threatened and will be committed and will be continu

ed unless restrained, but no injunction or TRO shall be is

sued on account of any threat, prohibited or unla

wful act, except against the person or persons, associati

on or organization making the threat or committing the

prohibited or unlawful act or actually authorizing or ratif

ying the same after actual knowledge thereof;

(2) that substantial and irreparable injury to co

mplainant's property will follow;

(3) that as to each item of relief to be granted, g

reater injury will be inflicted upon the complainant by t

he denial of relief than will be inflicted upon defendants

by the granting of relief;

(4) that the complainant has no adequate reme

dy at law;

(5) that the public officers charged with the duty

to protect complainant's property are unable or unwillin

g to furnish adequate protection.

Chapter IIPowers and Duties contd (Part 3. Procedur

e)

Box 5

1. Technical rules are not strictly followed in

proceedings before the NLRC and the Labor

Arbiter. How is this rule reconciled with the

requirement of procedural due process?

*Simplification of procedure, without regard to

technicalities of law or procedure and without

sacrificing the fundamental requisites of due

process.

In Ang Tibay vs CIR case, the court ruled that, it

is not narrowly constrained by the technical

rules of procedure. However this does not

mean that it can entirely ignore or disregard

the fundamental and essential requirements of

due process in trials and investigation of

administrative character. There are cardinal

primary rights which must be respected even in

proceedings of this character:

a. Right to hearing

b.

Tribunal must consider the

evidence presented

c.

Decision must be supported by

something (evidence)

d.

Supporting evidence must be

substantial

e.

Decision must be rendered on the

evidence presented or at least

contained in the record and

disclosed to the parties affected

f.

The body or any of its judges must

act on its own independentconsideration of the law and

facts, and not simply accept the

views of the subordinate in

arriving at a decision: and

g. Decide in such a manner that

parties can know the various


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issues involved and the reason for

the decision.

2. How are compulsory arbitration cases heard

and decided?

The NLRC or Labor Arbiter to deicide caseon the basis of position papers and other

documents submitting without resorting to

technical rules of evidence as observed in

the regular court of justice. The evidence

presented before it must at least have a

modicum of admissibility for it to be given

some probative value. Not only must there

be some evidence to support a finding or

conclusion, but evidence must be

substantial. Substantial evidence is more

that a mere scintilla. It means suchrelevant evidence as a reasonable mind

might accept as adequate to support a

conclusion.

Chapter III - Appeal

Box 6

1. A labor arbiters decision is appealable to the

NLRC & up to the CA/SC. On what grounds?

When?

ANS: As provided by law, labor arbiters

decision is appealable to the NLRC within 10

calendar days from receipt of such decision

only on any of the following grounds:

a. If there is a prima facie evidence

of abuse of discretion on the part

of the Labor Arbiter;

b.

If the decision was secured

through fraud or coercion,

including graft & corruption;

c.

If made purely on questions oflaw; and

d. If serious errors in the findings of

fact are raised which would cause

grave or irreparable damage or

injury to the appellant.

2. At each level of appeal what are the

prerequisites? Is a motion for reconsideration

a prerequisite?

ANS: The following are the perquisites for the

perfection of appeal:a. It must be filed within the

reglementary period;

b. It must be verified by appellant

himself;

c. It must be in the form of a

memorandum of appeal in three

(3) legibly typewritten copies

which shall state the grounds

relied upon, the supporting

arguments, the relief prayed for&

the date the appellant receivedthe appealed decision or order.

The appeal memorandum should

be accompanied by a certificate

of non-forum shopping, proof of

service on the other party, proof

of payment of appeal fee, & cash

or surety bond.

If the judgment includes

monetary award, appeal is

perfected by posting a bondin a form money or security

bond.

A motion for reconsideration is not a

prerequisite in order that an appeal maybe

perfected because technical rules is not binding in

labor cases. Hence, if a motion for reconsideration

is filed, it considered an appeal, provided that all

the requisites for perfection of appeal are present

3.

What are the limits to NLRCs appellate

jurisdiction?

ANS: The NLRC shall, in case of perfected

appeals, limit itself to reviewing those issues

which are raised on appeal. Those which are

not raised shall be final & executory.


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4. How is a final decision of the labor arbiter or

the NLRC executed?

ANS: The decision or order of the NLRC or a

Labor Arbiter that finally disposes of a case isenforced by an order or writ of execution upon

motion of the winning party or upon the

initiative of the Labor Arbiter or the NLRC that

issued such decision. A copy of such decision or

order should have been furnished to the

parties and their counsels or authorized

representatives.

5. May a regional trial court issue an injunction

against a NLRC decision?

ANS: As a general rule, Regional Trial Court has

no jurisdiction to issue temporary restraining

order in labor cases. However, when a third-

party to the action, asserts a claim over the

property levied upon, the third-party may

vindicate his claim by an independent action

which may stop the execution. Thus, the

above-stated rule applies only when there is no

third-party claimant is involved.

Title IIIBureau of Labor Relations

Box 7

1. What kind of cases fall within BLR's jurisdiction.?

Inter/intra union dispute

cba registration

Labor education

2. May labor standards violations be settled by

compromise? How this done?

It must be voluntarily agreed upon by the parties with

the assistance of the BLR or the regional office of DOLE-

final and binding upon the parties and can no longer be

repudiated.

The only time NLRC or any courts can assume

jurisdiction over issues involved therein: a. in case of

non-compliance thereof b. if there is prima facie

evidence that the settlement was obtained through

fraud, misrepresentation or coercion.

The assistance of the BLR or the regional office of the

DOLE in the execution of a compromise settlement is a

basic requirement. Without it, there can be no valid

compromise settlement. Mere appearance before BLR

or the regional office of the DOLE to file the already

executed compromise settlement is not the assistance

required by the law.

3. May such compromise be valid if the agreement sets

terms lower than the statutory standards?

In order for compromise agreement to be valid, one ofits substantial requirements is that it must not be

contrary to law, morals or public policy. Thus, this

agreement must not set terms contrary to what the law

requires as minimum standards.

4. Where, when, and how is CBA registered?

Registration of Collective Bargaining Agreements

Where to file:

With the Regional Office which issued the certificate ofregistration/certificate of creation of chartered local.

If the certificate of creation of the chartered local was

issued by the bureau, the agreement shall be filed with

the Regional Office which has jurisdiction over the place

where it principally operates.

Multi-employer collective bargaining agreements shall

be filed with the Bureau

When to file:

within 30 days from execution of the CBA.

Requirements for registration

The application for CBA registration shall be

accompanied by the original and 2 duplicate copies of

the following documents.


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1. CBA

2. A statement that the CBA was posted in at least 2

conspicuous places in the establishment concerned for

at least 5 days before its ratification.

3. Statement that the CBA was ratified by the majority

of the employees in the bargaining unit. The following

documents must be certified under oath by the

representative of the employer and the labor union. No

other document shall be required in the registration of

the CBA.

Procedure

1. Submission of chores of CBA to the BLR or regional

office of dole within 30 days from execution,

accompanied by the Requirements for registration.

2. Action upon the application fir registration within 5

calendar days from receipt thereof.

3. The regional office shall furnish the blr with copy of

cba within 5 days from submission.

4. The blr regional office shall assess the employer for

every cba, registration fee of not less than 1,000 or any

amount deemed appropriate by secretary of labor.

5. Issuance of certificate of registration.

Title IVLabor Organization

Chapter IRegistration and Cancellation

Box 8

1. What are the requirements for organizing and

registering a union?

Under the Labor Code of the Philippines, the

following are the requirements for organizing

and registering a union:

Art. 234. Requirements of registration. Anyapplicant labor organization, association or

group of unions or workers shall acquire legal

personality and shall be entitled to the rights

and privileges granted by law to legitimate

labor organizations upon issuance of the

certificate of registration based on the

following requirements.

a.

Fifty pesos (P50.00) registration fee;

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.

The names of all its members comprising atleast twenty percent (20%) of all the

employees in the bargaining unit where it

seeks to operate; (As amended by Executive

Order No. 111, December 24, 1986)

d. If the applicant union has been in existence for

one or more years, copies of its annual

financial reports; and

e. Four (4) 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. (As amended by Batas

Pambansa Bilang 130, August 21, 1981)

In addition,

Art. 237. Additional requirements for

federations or national unions. Subject to

Article 238, if the applicant for registration is a

federation or a national union, it shall, in

addition to the requirements of the preceding

Articles, submit the following:

a. Proof of the affiliation of at least ten (10) locals

or chapters, each of which must be a duly

recognized collective bargaining agent in the

establishment or industry in which it operates,

supporting the registration of such applicantfederation or national union; and

b.

The names and addresses of the companies

where the locals or chapters operate and the

list of all the members in each company

involved.

[ Art. 238. Conditions for registration of

federations or national unions.No federation

or national union shall be registered to engage

in any organization activity in more than one

industry in any area or region, and no

federation or national union shall be registered

to engage in any organizational activity in more

than one industry all over the country.

The federation or national union which meets

the requirements and conditions herein

prescribed may organize and affiliate locals and

chapters without registering such locals or

chapters with the Bureau.

Locals or chapters shall have the same rights

and privileges as if they were registered in the


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Bureau, provided that such federation or

national union organizes such locals or

chapters within its assigned organizational field

of activity as may be prescribed by the

Secretary of Labor.

The Bureau shall see to it that federations and

national unions shall only organize locals andchapters within a specific industry or union.]

(Repealed by Executive Order No. 111,

December 24, 1986)

2. What is a collective bargaining unit? How

does it differ from a union?

As provided by the Implementing

Rules of the Labor Code, a bargaining unit

refers to a group of employees sharing mutual

interest within a given employer unit,

comprised of all or less than all of the entire

body of employees in the employer unit or any

specific occupational or geographical grouping

within such employer unit.

One of the requirements to register an

independent union is that the applicant should

have a membership of at least 20 percent of

the employees in the bargaining unit where it

seeks to operate.

Azucena differentiated CBU and Union

in this manner:

CBU is different from and bigger than

a union. Union members come from the CBU

and there can be several rival unions within aCBU. While officers lead and represent a union,

a union represents a CBU. But only one union

should represent the whole CBU in bargaining

with the employer. The representative is the

union; the group represented is the CBU. The

representative union, once determined, will

represent even the members of other unions

as long as they are part of the CBU. This is why

the representative union is called exclusive

bargaining representative (EBR).

3. What is union affiliation and what are its

implications? May an affiliate disaffiliate?

Union affiliation is defined in two ways:

a) When an independently registered union

enters into an agreement of affiliation with

a federation or a national union;

b) A chartered local which applies for and is

granted an independent registration but

does not disaffiliate from its mother

federation or national union.

Implications:

a) The relationship between a local or

chapter and the labor federation or

natonal union is generally understood to

be that of agency, where the local is theprincipal and the federation the agent.

b)

Affiliation by a duly registered local union

with a national union or federation does

not make the local union lose its legal

personality. Despite the affiliation, the

local union remains the basic unit free to

serve the common interest of all its

members;

The right of a local union to disaffiliate from its

mother union is well settled. It has been held

that a local union, being a separate and

voluntary association, is free to serve the

interest of all its members including the

freedom to disaffiliate when circumstances

warrant. This right is consistent with the

constitutional guarantee of freedom of

association. To disaffiliate is a right, but to

observe the terms of affiliation is an

obligation.

SUBSTITUTIONARY DOCTRINE-employees

cannot revoke the validly executed collective

bargaining contract with their employer by the

simple expedient of changing their bargainingagent. The CBA continues to bind the members

of the new or disaffiliated and independent

union up to the CBAs expiration date.

4. How do unions merge or consolidate?

Merger of labor organizations is the process

where a labor organization absorbs another

resulting in the cessation of the absorbed labor

organizations existence and the continued

existence of the absorbing labor organization;

that is if Union A absorbs Union B, Union A

remains and Union B disappears, or it can be B

absorbing A. Another name for merger is

absorption.

Consolidation of unions refers to the creation

or formation of a new union arising from the

unification of two or more unions; that is, if

union A and union B consolidate themselves,


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both of them disappear and Union C is born.

Another name for consolidation is

amalgamation.

How?

A. Notice of merger or consolidation of

independent labor unions, chartered localsand workers association shall be filed with

and recorded by the Regional Office that

issued the Certificate of

Registration/Creation. Notice of merger or

consolidation of federations or national

unions shall be filed with and recorded by

the Bureau.

B. The notice shall be accompanied by the

following documents:

a)

Minutes of Merger/consolidation

meeting with the list of members who

approve the same; and

b)

Amended Constitution and by-laws

and minutes of its ratification, unless

ratification transpired in the

Convention.

C. The Certificate of registration issued to

merged labor organizations shall bear the

registration number of one of the merging

labor organizations as agreed upon by the

parties.

5. On what grounds and upon whose petition

may a unions registration be cancelled?The Labor Code provides the following:

Art. 238. Cancellation of registration; appeal.

The certificate of registration of any labor

organization, whether national or local, shall be

cancelled by the Bureau if it has reason to

believe, after due hearing, that the said labor

organization no longer meets one or more of

the requirements herein prescribed.

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. Misrepresentation, false statements or

fraud in connection with the election of

officers, minutes of the election of officers,

the list of voters;

c. Voluntary dissolution by the members.

D.O. No. 40-03(Rule XIV, Section 2) states: Any

party-in-interest may commence a petition for

cancellation of a unions registration, except inactions involving violations of Article 241, which can

only be commenced by members of the labor

organization concerned. The employer is a party-

in-interest, and jurisprudence reveals cases of

cancellation of union registration based on

petitions filed by the employer.

Chapter IIRights and Conditions of Membership

Box 9

1. What are the rights of union members?

a.

Political rightmembers right to vote and

be voted for, subject to lawful provisions

on qualifications and disqualifications.

b. Deliberative and decision making right

right to participate in deliberations on

major policy questions and decide them by

secret ballot.

c.

Right over money matters rights against

excessive fees; unauthorized collections of

contribution or disbursement; the right to

require adequate records of income and

expenses and access to financial records;

the right to vote on officerscompensations, on proposed special

assessments and be deducted a special

assessment only with the members

written authorizations.

d. Right to informationright to be informed

about the orgs constitution and by-laws

and CBA and about labor laws.

2. When, how and by whom are union officers

elected?

They are elected directly by the

members in secret ballot voting. The

elections take place at intervals of five

years which is their term of office.

How it is done are matters left by law

to the unions constitution and by-

laws or to agreements among the

members. In the absence thereof,

book V applies.

How may they be impeached or removed?


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They may be impeached by the ff

procedure:

-Initiated by petition signed by at least 30%of

all bona fide members of union;

- General membership meeting shall be

convened by the board chairman;

- Union officer against whom impeachmentcharges have been filed, before impeachment

vote be taken, shall be given ample opportunity

to defend himself;

- Majority of all the members of union be

required to impeach or recall union officers.

They may be expelled if they violate

the rights and conditions of the

membership.

3. May a union member seek cancellations of his

unions registration?

Yes, provided the ff requisites must

concur:

-

Member desire to dissolve or

cancel the registration should have been

voted upon through secret balloting;

-

The balloting should take place in a

meeting duly called for the purpose of

deciding WON to dissolve the union;

- The vote to dissolve should represents

2\3 affirmative vote of the general

memberships;

-Members resolution should be followed

by an application for cancellation passed

and submitted by the unions governing

board, which must be attested to by thepresident.

4. What is check-off? When may it properly be

done?

Check-off is a method of deducting

from an employees pay at prescribed

period, the amounts due the union for

fees, fines, or assessments.

Deductions for union service fees are

authorized by law and do not require

individual checkoff authorizations.

Chapter IIIRights of Legitimate Labor Organizations

Box 10

1. What are the rights of a legitimate labor

organization?

The following are the rights of a

legitimate labor organization: (Art. 242)

1.

To act as representatives of its

members for the purpose of

collective bargaining.

2. To be certified as the exclusive

representative of all the

employees in an appropriatecollective bargaining unit for

purposes of collective bargaining.

3. To be furnished by employer,

upon written request, with its

annual audited financial

statements.

4. To own property, real or personal,

for the use and benefit of the

labor organization and its

members.

5.

To sue and be sued in itsregistered name.

6. To undertake all other activities

designed to benefit the

organization and its members,

including cooperative, housing

welfare and other projects not

contrary to law.

7. Its income, properties, grants,

endowments, gifts, donations,

and contributions, used for their

lawful purposes, shall be freefrom taxes, duties and

assessments, except when this

provision is expressly repealed by

a special law.

2. May a union, as representative, settle by

compromise its members money claims?

No. The exception is when there is a

specific individual consent of each laborer

concerned.

Title V - Coverage

Box 11

1. In the private and public sectors, who are

the persons allowed and not allowed to

form and join labor organization?


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In private sectors all person employed

in commercial, industrial and agricultural

enterprise and in religions, charitable,

medical/educational institutions whether

for profit or not are allowed to form or joinlabor organization. Ambulant, intermittent

and itinerant workers, self-employed

people, rural workers and those without

any definite employees may form/join

labor organization.

Those who are not allowed are

employees of such cooperative who is a

member and co-owner; Managerial

employees.

In public sectors, employees of Govt.

Corporation established under the

corporation code shall have the right to

organize with their respective employers.

All other employees in civil service shall

have the right to form association for

purpose not contrary to law.

Exempted employees are those

members of the AFP, including police

officers, policemen, fireman and jai guard;High level employee.

2. What law governs labor realations in the

public secto?

The law that governs in the public

sector is the Civil Service Law.

3. May government employees hold protest

actions? May they go on a strikelegally?

Yes, the resolution of complaint andcases involving govt. employees is not

ordinarily left to collective

bargaining/other related activities but to

civil service law and labor law whenever

applicable.

Terms and condition of employment

in govt. including any political subdivision

or instrumentality thereof and GOCC with

original charters are governed by law, the

employees therein shall not strike for

purpose of securing changes thereof.

4. In the private sector how does a manager

differ from a supervisor?

In the private sector, a manager

differs from a supervisor in the sense that

a manager makes policy decisions or

people decisions or both, while a

supervisor recommends those decisions.

One is a decision maker while the other

recommends.

5. Supervisor and rank and file employees

cannot join the same union. What

happens if they do?

As a rule the inclusion as union

members of employees outside the

bargaining unit shall not be a ground for

the cancellation of registration of the

union. Said employees are automatically

deemed removed from the list of

membership of said union.

6. Who are considered confidential

employees? May confidential employee

join unions?

Confidential employees assist and act in a

confidential capacity to, or have access to

confidential matters of, persons who

exercise managerial functions in the field

of labor relations.

Confidential employees cannot form, join, orassist rank-and-file unions however When the employee

does not access to confidential employees,

there is no legal prohibition against confidential

employee from forming, assisting or joining a

union.

Title VIUnfair Labor Practices


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Chapter I - Concept

Box 12

1. Unfair Labor practice is an act of abridgment

which Article 246 prohibits. Is it ULP to stop

protest action by ununionized employees?Ans.:

Because self-organization is a prerequisite

the lifebloodof industrial democracy, the right

to self-organize has been enshrined in the

Constitution, and any act intended to weaken or

defeat the right is regarded by law as an offense.

ULP, therefore has a limited, technical meaning

because it is a labor relations concept with a

statutory definition. It refers only to acts opposed

to workers right to organize. Without the element,

the act, no matter how unfair, is not unfair laborpractice as legally defined.

2. Under article 247, ULP is both civil and criminal

offense. Why?

Ans.:

The victim of the offense is not just the

workers as a body and the well-meaning

employers who value industrial peace, but the

State as well. Thus, the attack to constitutional

right is considered a crime which therefore carries

both civil and criminal liabilities.

3. What are the elements of ULP as an offense?

Ans.:

First, there is employer-employee relationship

between the offender and the offended; and

Second, the act done is expressly defined in the

Code as an act of unfair labor practice.

Chapter IIUnfair Labor Practices of Employers

Box 13

1. What acts are considered unfair labor practice

by an employer?

Answer: Art. 248 of the Labor Code

enumerated unfair labor practices of

employers.

a. To interfere with, restrain or coerce

employees in the exercise of their right to

self-organization.b. To require as a condition of employment

that a person or an employee shall not join

a labor organization or shall withdraw

from one to which he belongs.

c. To contract out services or functions being

performed by union members when such

will interfere with, restrain or coerce

employees in the exercise of their right to

self-organization;

d. To initiate, dominate, assist or otherwise

interfere with the formation oradministration of any labor organization,

including the giving of financial or other

support to it or its organizers or

supporters;

e.

To discriminate in regard to wages, hours

of work, and other terms and conditions of

employment in order to encourage or

discourage membership in any labor

organization.

f. To dismiss, discharge or otherwise

prejudice or discriminate against anemployee for having given or being about

to give testimony under this Code;

g. To violate the duty to bargain collectively

as prescribed by this Code;

h. To pay negotiation or attorneys fees to

the union or its officers or agents as part of

the settlement of any issue in collective

bargaining or any other dispute;

i. To violate a collective bargaining

agreement.

2. What is the discrimination that may constitute

ULP?

Answer: To constitute an unfair labor practice,

the discrimination committed by the employer

must be in regard to the hire or tenure of

employment or any term or condition of


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employment to encourage or discourage

membership in any labor organization.

3. Is it ULP for an employer to contract out jobs

being done by union members?

Answer: No. It is not ULP for an employer tocontract out jobs being done by union

members UNLESS such act will interfere with,

restrain, or coerce employees in the exercise of

their right to self-organization. Hence,

contracting out by itself is not ULP. It is the ill-

intention that makes it so.

4. Is it ULP for an employer to favour a particular

union?

Answer: Yes, if the act of favouring a particular

union amounts to domination of a labor unionsuch as in the following:

initiation of company union idea; giving

financial support to the union; employer

encouragement and assistance; and

supervisory assistance.

5. Is it lawful to compel an employee to join a

union?

Answer: No. There is a form of encouragement

of union membership which is not considered

ULP. This is where the management and unionenters into a collective bargaining agreement

containing a union security clause. A union

security clause essentially requires

membership in the union so that an employee

may retain his job and the unions existence is

assured. It is compulsory union membership

whose objective is to assure continued

existence of the union. In a sense, there is

discrimination when certain employees are

obliged to join a particular union. But it is

discrimination favouring unionism; it is a validkind of discrimination.

Chapter III Unfair Labor Practices of Labor

Organizations

Box 14

1. What acts are considered ULP by a Labor

organization?

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 theexercise of their right to self-organization.

However, a labor organization shall have the right

to prescribe its own rules with respect to the

acquisition or retention of membership;

b.) To cause or attempt to cause an employer

to discriminate against an employee, including

discrimination against an employee with respect to

whom membership in such organization has been

denied or to terminate an employee on any ground

other than the usual terms and conditions underwhich membership or continuation of 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 or

not to be performed, including the demand for fee

for union negotiations;

e .) To ask for or accept negotiation or

attorneys fees from employers as part of the

settlement of any issue in collective bargaining or

any other dispute; or

f.) To violate a collective bargaining

agreement

2.

May a union charge with ULP another union inthe same enterprise?

No, Unfair Labor Practices can only be

invoked by an employee against an employer

and and by a union member against the labor

union when such employer or labor union


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violates the Constitutional right of workers or

Employees to self-organization.

3. May a union member charge with ULP his own

union?

Yes. Labor Union can be charged with

ULP by a union member where in a case such

Union arbitrarily exclude qualified applicants

for membership, and a closed-shop provision

would not justify the employer in discharging,

or a union in insisting upon the discharge of, an

employee whom the union thus refuses to

admit to membership, without any reasonable

ground therefor.

4. What is featherbedding? Is it featherbedding

to object to the abolition of certain jobs or

positions in the company?

Article 249(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 or not to

be performed, including the demand for fee for union

negotiations;refers to featherbedding, a term given

to employee practices which create or spread

employment by unnecessarily maintaining or

increasing the number of employees used,or the

amount of time consumed, to work on a particular job.

No. Most of these practices stem from a desire onthe part of employees for job security in the face of

technological improvements or in the face of employer

subcontracting. However, most courts at common law

found these practices to be economically wasteful and

without any legitimate employee justification.

Title VII Collective Bargaining and Administration of

Agreement (Part I. Collective Bargaining Concept and

Procedure)

Box 15

1) How is collective bargaining done? May the parti

es devise their own procedure? (See Art.250)

The mechanics of collective bargaining are set in m

otion only when the following jurisdictional preconditio

ns are present, namely: (1) possession of the status of m

ajority representation of the employees' representative

in accordance with any of the means of selection or desi

gnation provided for by the Labor Code; (2) proof of maj

ority representation; (3) a demand to bargain under Art

250, par.[a] of the New Labor Code. If the three jurisdict

ional preconditions are present, the collective bargainin

g should begin within 12 months following the determin

ation and certification of the employees' exclusive barga

ining representative.

Yes. Art 251 provides, "In the absence of an agree

ment or other voluntary arrangement providing for a m

ore expeditious manner of collective bargaining, it shall

be the duty of the employer and the representatives of

the employees to bargain collectively in accordance wit

h the provisions of this Code."

2) The prevailing practice is single enterprise bargai

ning. Is multi-employer bargaining allowed?

Yes. Multi-employer bargaining unit is particularly

advantageous to both sides in industries composed of m

any small, financially weak employers.

3) What are the elements of the duty to bargain, vi

olation of which may constitute ULP?

(I tweaked the answer a little. ma_an)

The elements of the duty to bargain depends o

n whether there is yet no collective bargaining agreeme

nt and where a CBA already exists. When there is yet no

CBA, the duty to bargain means in essence the obligatio

n of the employer and the employees majority union to

meet and convence. The purposes of the meeting and c

onvening are: (a) to NEGOTIATE an agreement on the su

bjects of: (1) wages (2) hours of work (3) all other terms

and conditions employment including proposals for adju

sting grievances or questions arising under such agreem

ent; and (b) to EXECUTE a contract incorporating such a

greement if requested by either party.

The kind of compliance required is prompt, exp

editious and in good faith. The limitations or reservation

s are that it does not compel any party to agree to a pro


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posal or to make a concession. Thus, no violation and no

ULP is committed when a party in good faith turns down

a proposal.

Where a CBA already exists, the duty to bargai

n means all of the above and, additionally, the obligatio

n not to terminate or modify the agreement. During the

60 day period and until a new agreement is reached, th

e CBA remains in full force and effect; the parties are du

ty-bound to keep the status quo. The law therefore prov

ides for automatic renewal or extension of the CBA. This

60 day period under Art. 253 refers to submission of pro

posal to renegotiate the nonrepresentational provisions

of the CBA. It does not always coincide with the 60-day

period mentioned in Art. 253-A and 256 pertaining to f

reedom period to resolve representation contest between unions.

Forms of ULP by violating the duty to bargain men

tioned above:

a) failure or refusal to meet and convene;

b) evading the mandatory subjects of bargainin

g;

c) bad faith in bargaining including failure or ref

usak to execute the collective agreement, if requested;

d) gross violation of the CBA

4) What are the compulsory and optional subjects o

f bargaining?

The mandatory subjects of collective bargaining ar

e wages, hours of work and all other terms and conditio

ns of employment. Those matters outside the terms and

conditions of employment are not within the employer'

s duty to bargain, such other matters he is free to bargai

n or not to bargain.

5) What are the requirements of valid ratification of

a CBA?

The agreement negotiated by the employees' barg

aining agent should be ratified or approved by the majo

rity of all the workers in the bargaining unit. The posting

of the CBA in two conspicuous places for five days is als

o required.

6) When does a CBA take effect? Up to when is it ef

fective? May its life be extended by non-renewal

or by mutual agreement?

It has been held that a CBA was effective on ratific

ation by union members.

RA No. 6715 has introduced through Art. 253-A a

significant change in setting the durations or terms of a

CBA at five years for the "representation aspect" and no

t more than three years for "all other provisions".

Art. 253 provides, It shall be the duty of both parti

es to keep the status quo and to continue in full force a

nd effect the term and conditions of the existing agreem

ent during the 60-day period and/or until a new agreement is reached by the parties.

Title VIICollective Bargaining and

Administration of Agreement (contd) (Part 2.

Employee Participation and Representation

Box 16

1. What are the methods of selecting the union

that will bargain with the employer?

a.) Voluntary recognition

b.)

Certification Election

c.) Consent election

2.

What is certification election (C.E.)? Who canpetition for a C. E.?

*Certification election is the process of

determining through secret ballot the sole and

exclusive representative of the employees in

an appropriate bargaining unit, for purposes of

collective bargaining or negotiation.

*may be filed by the (1)registered union or (2)

by an employer. (3) Any legitimate labor

organization including a(4) national union or

federation that has issued a charter certificate

to its local/chapter.

3. On what grounds may a petition for C. E. be

denied?

*Med-arbiter may disapprove or deny the

petition to hold a C.E. on the following ground:


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a.) Non- appearance

b.) Illegitimacy-Unregistered Union

c.) Illegitimacy- no charter

d.) Absence of employment relationship

e.) election bar- the 12 month bar

f.) election bar- negotiation or deadlock

g.) election bar- existing CBA

h.) election bar-lack of support

4. Who votes in C. E.? Who wins?

*all employees who are members of the

appropriate bargaining unit sought to be

represented by the petitioner at the time of

the issuance of the order granting the conduct

off a certification election shall be eligible to

vote.

* results of the election and certifying the

union which obtained a majority of the valid

votes cast. Where majority of the valid votes

cast results in no-union obtaining the

majority, the med-arbiter shall declare such

fact in the order.

5. Is the employer a party to a C. E.?

*no, employers are mere bystanders in the

CE proceedings.

6. What is meant by dutyof fair

representation?

*this duty, enjoined explicitly in American

jurisprudence and implicitly in Philippine law,

obligates the majority union to serve the

interest of all members of the whole bargaining

unit without hostility or discrimination.

Title VII A Grievance Machinery and Voluntary

Arbitration

Box 17

1. A CBA is said to be the law between the

parties. What are the consequences of its

violation?

ANS: If the violation of the CBA is not gross, it is

considered as grievance, but if the violation ofthe CBA is gross, it considered as unfair labor

practice.

In the event of any violation in the

CBA, the aggrieved party has the right to go to

court for redress.

2. A CBA is in personam. What are the

implications? The exceptions?

ANS: CBA is said to be in personam, thus, itimplies that labor contracts is only binding

between the parties and it does not create any

real right which should be respected by third

parties.

However, as an exception to the said

rule, the parties may be held liable to the

employees if the transaction between the

parties is colored or clothed with bad faith.

3.

What is grievance machinery & why is itrequired provision in a CBA?

ANS: Refers to a mechanism for the adjustment

of controversies or disputes arising from the

interpretation or implementation of the CBA &

the interpretation or enforcement of the

company personnel policies.

It is intended to promote friendly

dialogue between labor and management as a

means of maintaining industrial peace andtherefore considered to be an extension of the

parties to bargain as required by law.

4. In what cases is resort to the grievance

machinery a prerequisite or jurisdictional, and

when is it optional?


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ANS: Resort first to grievance machinery is

jurisdictional when it is expressly & validly

entered into the CBA. Hence, all grievances

arising from the implementation or

interpretation of the CBA and/or interpretation& enforcement of company personnel policies

are compulsory subject to the grievance

machinery.

However, resort to the said grievance

machinery may be optional when it is proven

to be ineffective in the past, or when the

parties inadvertently failed to include a

grievance machinery provision in the CBA.

5.

Who are voluntary arbitrators? In what senseare they voluntary? Are their decisions

appealable?

ANS: Voluntary Arbitrators consist of persons

mostly involved as employees or officials in the

government or in education, civic, and religious

institutions, trade union organizations &

private enterprises.

They are considered to be voluntary in

the sense that they are chosen by the partiesthemselves, thus the preferred method of

selection of voluntary arbitrators is by mutual

agreement of the parties.

As a general rule, decisions of

Voluntary Arbitrator must be accorded with

finality, however, the Supreme Court may take

cognizance a petition for certiorari by the

aggrieved party under Rule 65 of the Rules of

Court which allege a grave abuse of discretion

or an act without or excess of jurisdiction onthe part of the Voluntary Arbitrator.

6. What rules govern voluntary arbitration?

ANS: The rules that governs voluntary

arbitration is based on the labor code and its

implementing rules & regulations, the CBA, &

other agreement of the parties, the directives

of the arbitrator, & the procedural guidelines in

conduct of voluntary arbitration proceedings.

Title VIII Strikes and Lockouts and Foreign

Involvement in Trade Union Activities

Chapter IStrikes and Lockouts

Part 1. Regulations and Limits of Strike and Lockout

Box 18

1. In general, what is meant by concerted activity?

It is an activity undertaken by two or more

employees, by one on behalf of others.

2. Factors to be examined

Factors affecting legality of strike:

1. Statutory prohibition

2. Procedural requirements of the law

3. Purpose must be ULP and economic

4. Lawful means and methods

5. Injunction

3. Government Employee may strike?

No. By reason of peculiar character of the public service,

it must necessarily regard the right to strike given to

unions in the private industry as not applying to public

employees.

Moreover, the csc declared that the right to self

organization accorded to government employees shall

not carry with it the right to engage in any form of

prohibited concerted activity or mass action causing or

intending to cause work stoppage or service disruption,

albeit of temporary nature.


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4. Goodfaith strike doctrine- A strike may be

considered legal when the union believed that the

respondent company committed unfair labor acts and

the circumstances warranted such belief in good faith

although subsequently such allegation of unfair labor

practices are found out as not true. (Peoples Industrialand Commercial Employees and Workers Organization

(FFW) v. Peoples Industrial and Commercial Corp. GR

No. 37687 15 March 1982

5. Striker and employer may not do on occasion of

strike.

Prohibited activities [Art.264]

(a) No labor organization or employer shall declare a

strike or lockout without first having bargained

collectively in accordance with Title VII of this Book orwithout first having filed the notice required in the

preceding Article or without the necessary strike or

lockout vote first having been obtained and reported to

the Ministry.

No strike or lockout shall be declared after assumption

of jurisdiction by the President or the Minister or after

certification or submission of the dispute to compulsory

or voluntary arbitration or during the pendency of cases

involving the same grounds for the strike or lockout.

(b) No person shall obstruct, impede, or interfere with,

by force, violence, coercion, threats or intimidation, any

peaceful picketing by employees during any labor

controversy or in the exercise of the right to

selforganization or collective bargaining, or shall aid or

abet such obstruction or interference.

(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 Philippinesor 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:

(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.

May employer hire workers in place of strikers?

An employer is entitled to carry out his business. But in

unfair labor practice strike, such replacements may not

be permanently employed. In case of defiance of return

to work order, or certification or assumption order, a

hearing is not required for the employer to validly hire

replacement for workers who committed the defiance.

6. What is National interest dispute? In what ways it is

subjected to police power?

Labor dispute involving national interest. When there

exist a labor dispute causing or likely to cause a strike or

lock out in an industry indispensable to the national

interest. The power of (a) assumption of jurisdiction and

decide it or (b) certify the same to the NLRC for

Compulsory arbitration by the secretary of labor is in

nature a police power measure.

7.No Strike-No Lockout Clause valid?

A "no strike, no lock-out" provision in the CBA is a valid

stipulation although the clause may be invoked by an

employer only when the strike is economic in nature or

one which is conducted to force wage or other

concessions from the employer that are not mandated

to be granted by the law itself. It would be inapplicable

to prevent a strike which is grounded on unfair labor

practice. [Panay Electric Co. v. NLRC, 1995; Malayang

Samahan ng mga Manggagawa sa Greenfield v. Ramos ,2000BLR

Chapter IStrikes and Lockouts (Contd)

Part 2. Picketing and other concerted action

Box 19


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1. What are the legal limits to a picket? May

picketing be conducted without a strike?

Picketing involves the presence of striking workers

of their union brothers who pace back and forth before

the place of business of an employer considered unfairto organized labor, in the hope of being able to

persuade peacefully other workers not to work in the

establishment, and customers not to do business there.

Picketing as a concerted activity is subject to the

same limitations as strike, particularly as to lawful

purpose and lawful means. Like the freedom of

expression in general, it has limits. Thus, to the extent

that it is an instrument of coercion rather than a

persuasion, it cannot rightfully be entitled to the

protection associated with free speech.

Picketing almost always accompanies a strike. But

there may be picketing without a strike because

employees may picket without engaging in work

stoppage. Although picketing is a form of concerted

action, not every concerted action is a strike.

2.

What is the recourse of a neutral party being

affected by a picket?

In Philippine Association of Free Labor Unions (PAFLU)

v. Cloribel, the Court, through Justice

J.B.L. Reyes, stated the innocent bystander rule as

follows:

The right to picket as a means of communicating the

facts of a labor dispute is

a phase of the freedom of speech guaranteed by the

constitution. If peacefully

carried out, it cannot be curtailed even in the absence

of employer-employee

relationship.

The right is, however, not an absolute one. While

peaceful picketing is entitled to protection as

an exercise of free speech, we believe the courts are not

without power to confine or localize the sphere of

communication or the demonstration to the parties tothe labor dispute, including those with related interest,

and to insulate establishments or persons with no

industrial connection or

having interest totally foreign to the context of the

dispute. Thus the right may be regulated at

the instance of third parties or innocent bystanders if

it appears that the inevitable result of its exercise is to

create an impression that a labor dispute with which

they have no connection or interest exists between

them and the picketing union or constitute an invasion

of their rights.

Thus, an innocent bystander, who seeks to enjoin a

labor strike, must satisfy the court it isentirely different from, without any connection

whatsoever to, either party to the dispute and,

therefore, its interests are totally foreign to the context

thereof.

A picketing labor union has no right to prevent innocent

bystander from getting in and out of its premises,

otherwise it will be held liable for damages for its act

against innocent bystanders.

3.

What is the recourse of an employer when

employees conduct a group action withoutwork stoppage?(No answer found in the book,

I just infer this based on the annotations)

The following are concerted actions

without work stoppage:

a) Collective letter;(Republic Savings Bank vs.

CIR)

b)

Publicity;

c)

Placards and Banners;

d) Wearing of Armbands;(Bascon et al vs. CA

et al)

e)

Speeches, Music, and Broadcasts

f) Employees Demonstration to Protest

Police Abuses (Phil Blooming Mills

Employees vs.PBM Inc)

There was no finding by the Court that the

following group action constitutes illegal act. In

fact, per se, they are within the mantle of

constitutional protection under freedom of

speech. Being so, an employer who terminates

employment constitutes illegal dismissal not

being for any of the just or authorized causes.

Therefore, as long as the group action

constitutes a guarantee of the freedom of

speech, the employer has no recourse but to

respect such exercise of right.

4.

When is a group action a strike even if there is

no work stoppage? Is boycott a strike?

The word strike in its broad

significance has reference to a dispute


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between an employer and his workers, in the

course of which there is a concerned

suspension of employment. As a form of labor

activity, it is rarely carried on without the

concomitants of picketing or boycotting. Thus,

a group action is considered a strike even if

there is no work stoppage in instances of picketand boycott.

The term boycott as applied to

labor unions, is generally understood to ba a

combination to harm one person by coercing

others to harm him-that is, a combination of

many to cause a loss to one person by causing

others, against their will, to withdraw from him

their beneficial business intercourse through

threats that unless others do so, the many will

cause similar loss to him or them.

Whether a boycott is a strike or not

depends upon the means or methods to carry

out the boycott. The striking employees not

only have a right to acquaint the public with

the fact of the existence of a strike and the

cause thereof, but may appeal for sympathetic

aid by a request to withhold patronage from

the employer.

Chapter I

Strikes and Lockouts contd

Part 3. Consequences of Concerted Actions

Box 20

1. Who are the strikers that may return to their

jobs when the strike is over?

Those who were discriminatorily

dismissed for union activities; and

Those who voluntarily went on strike

even if it is in protest of an ULP.

2. Either in economic or ULP strike, the strikers

are not to be paid for the period they were on

strike. What are the exceptions?

Involuntary strikers illegally locked

out; or

Voluntary strikers in ULP strike whooffered to return to work

unconditionally.

3. On what grounds may the employment of

strikers be terminated? By whom? When?

Through what process?

An ordinary striking worker cannot be

terminated for mere participation in

an illegal strike. There must be proof

that he committed illegal acts during

strike.

A union officer, on the other hand,

may be terminated from work when

he knowingly participates in an illegal

strike, or when he commits an illegalact during a strike.

4. What liabilities may employees incur by

holding a strike?

They may be held liable for damages

where they attempt to attain their

legitimate objectives by unlawful

means or where they attempt to

attain unlawful objectives; or

When they personally authorized or

participated in the particular acts.

Title ITermination of Employment

Part 2. Kinds of Employment

Box 21

1. What are the kinds of employment and which

ones are entitled to the right to security of

tenure?

The kinds of employment are:

1.

Regular employment

2.Casual employment

3.

Project employment

4.Seasonal employment

5.

Probationary employment

6.Fixed-term employment

(but marag pwd ra muingon

og regular and temporary

employment)


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The right to security of tenure shall be

enjoyed by employees in all kinds of

employment. (According to Consti and court

rulings. Art 279, which recognizes security of

tenure only to regular employees, is defective.)

(But if dli regular employee, ang security oftenure kay for a limited period lng pud. Hehe!)

2. What is project employment? When does a

project employee becomes regular?

A project employment is one

whereby the employment has been fixed

for a specific project or undertaking, the

completion or termination of which has

been determined at the time of the

engagement of the employee or where the

work or service to be performed is seasonal

in nature and the employment is for the

duration of the season.

A project employee becomes a

regular employee when he is repeatedly

rehired and his services continually needed

for a long span of time.

3. What are the kinds of fixed-period

employment and under what

circumstances are they considered valid?

Article 280[13] of the Labor Code

identifies only four (4) kinds of employees.

These are (1) regular employees or

employees who have been engaged to

perform activities which are usually

necessary or desirable in the usual business

or trade of the employer; (2) project

employees or employees whose

employment has been fixed for a specific

project or undertaking, the completion or

termination of which has been determinedat the time of the engagement of the

employee; (3) seasonal employees or where

the work or service to be performed by the

employee is seasonal in nature and the

employment is for the duration of the

season; and (4) casual employees or

employees who are neither regular nor

project employees.

Article 280 of the Labor Code does

not mention fixed-term employment. It is

not expressly provided for under the LaborCode. However, the Court in the Brent

School case recognized the validity of fixed-

term employment. The Court defined fixed-

term employment as a contract of

employment for a definite period which

terminates by its own terms or the end of

such period. The decisive determinant in

fixed-term employment should not be the

activites that the employee is called upon to

perform, but the day certain agreed upon

by the parties for the commencement andtermination of their employment relation.

Under the Civil Code, fixed-

term employment contracts are not

limited, as they are under the present

Labor Code, to those by nature seasonal

or for specific projects with

predetermined dates of completion;

they also include those to which the

parties by free choice have assigned a

specific date of termination.Thedecisive determinant in term

employment is the day certain agreed

upon by the parties for the

commencement and termination of

their employment relationship, a day

certain being understood to be that

which much necessarily come, although

it may not be known when.- (just copied

from the net. ma_an) I think seasonal and project

employees are considered as fixed-period employees.

The fixed-period employment shall

be considered valid when:

(1.) it is entered into by the parties

without force, duress or improper pressure

being brought to bear upon the employee

and absent any other circumstance vitiating

consent; or


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(2.) it satisfactorily appears that

the employer and the employee dealt with

each other on more or less equal terms

with no moral dominance exercised but he

former or the latter. (Brent Doctrine)

4. Who is considered regular seasonal and

regular casual employee?

A regular seasonal employee is one

who is called to work from time to time.

During a season they are employed;

temporarily laid off during off-season. They

are not, strictly speaking, separated from

the service but are merely considered on

leave of absence without pay until they are

reemployed.

A regular casual employee is one

who has rendered at least one year of

service, whether continuous or broken with

respect to the activity in which he is

employed. He is regular only for that work

activity for which he was hired. His

employment may be on-and-off, but every

time the particular work activity occurs, he

is the one to be rehired. (He is originally a

casual employee. After 1yr he becomes a

regular casual ee)

5. What are the rights of a probationary

employee?

The following are the rights of a

probationary employee:

1.

Security of tenure;

2. To be considered a regular

employee if he is allowed to

work after the probationary

period.

6. May the employer contract out a regular

job?

Yes, an employer may contract out

a regular job, provided that it is done in

good faith and justified by exigencies of the

business.

Title ITermination of Employment (Contd)

Part 3. Management of Rights and the Just Causes

of Termination

Box 22

1. Serious misconduct as a valid

reason of dismissal require a

certain elements. What are those?

>The misconduct to be serious

must be of such a grave aggravated

character and not merely trivial or

unimportant.

2. If an employee, on ground of

inconvenience, disobeys and

order transferring him to another

location or job, may such

employee be dismissed?

>In order to constitute a valid

reason to dismiss an employee for

disobeying an order the two

requisite must concur (1)

employees attitude wrongful and

perverse and (2) qualities of the

order lawful, reasonable, made

known to the employee and

pertain to the duties of the

employee when it shown that it is

unnecessary, convenient, and

prejudicial to the displaced

employee such dismissal is valid.

3. Is ignorance an excuse for having

violated a company policy or

regulation?

>Yes, ignorance of company policyor regulation may be an excuse

when the act or omission is not

grave or where the act does not

constitute gross negligence.

4. Under what conditions or

circumstances may an employee


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be dismissed on ground of loss of

confidence?

A. Loss of confidence should not be

simulated

B. It should not be used as asubterfuge for causes which are

improper illegal/unjustified;

C. It may not be arbitrarily asserted

in the face of overwhelming

evidence to the contrary.

D. it must be genuine, not mere

afterthought to justify earlier

action taken in bad faith.

E. Employee involved holds a

position of trust and confidence.

Title ITermination of Employment (contd)

Part 4. Authorized Causes of Termination

Box 23

1. In what respects are the authorized

causes and the just causes the same

and different?

Ans. They are the same in the sense that

they are the causes and modes of

termination of employment and differs in

the sense that dismissal for just cause is

where an employee is dismissed for causes

which are attributable to his fault or

culpability while termination for authorized

cause is where an employee is dismissed for

causes independent of his fault.

In just cause a dismissed employee is

not entitled to separation pay while in

authorize cause is entitled to separation

pay.

2. What are the authorized causes and the

corresponding rates of separation pay?

What authorized cause does not entail

payment of separation pay?

Ans. The following are the authorized

causes and corresponding rates of

separation pay:

a. Automation/Robotics and Redundancy

equivalent to at least one month pay

or at least one month pay for everyyear of service, whichever is higher, a

fraction of six(6) months is considered

as one (1) year.

b. Retrenchment equivalent to one

month pay or at least one-half month

pay for every year of service, whichever

is higher, a fraction of six (6) months is

considered as one (1) whole year.

c. Closures or cessation of operations not

due to serious business losses or

financial reverses equivalent to onemonth pay or at least one-half month

pay for every year of service, whichever

is higher, a fraction of six (6) months is

considered as one (1) whole year.

d.

Disease- equivalent to at least one-

month salary or to month salary for

every year of service, whichever is

greater, a fraction of at least 6 months

shall be considered one (1) whole year.

The following are the authorized causethat does not entail payment of

separation pay:

a. If due to severe business losses or

financial reverses there is no

separation pay due;;

b. Closure due to an act of

government.

3. How does preventive retrenchment differ from

redundancy?

There is retrenchment where employer

reduces the number of its personnel in order to

prevent further losses in his business operations.

There will be redundancy when for

purposes of economy a company decides to


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reorganize its departments by imposing on

employees of one department the duties performed

by the employees of the other department, thus

rendering unnecessary the job of the latter, the

services of the employees whose functions are now

being performed by the former, may be validlyterminated on the ground of redundancy.

4. Explain the four standards of a valid

retrenchment (SINS)

a.

The losses expected are substantial and

not merely de minimisin extent;

b. The apprehended substantial loss are

reasonably imminent, can be perceived

objectively and in good faith by the

employer;

c.

Retrenchment must be reasonably

necessary to prevent the expected

losses; and

d. Expected or actual losses must be

proved by sufficient and convincing

evidence.

Title ITermination of Employment (contd)

Part 5. Procedure to Terminate Employment

Box 24

1. In employment termination what does

procedural due process consists of- for the

just causes? For the authorized?

Ans. As a general rule the law requires that

the employer must furnish the worker

sought to be dismissed with two written

notices before termination of employment

can be legally effected.

For termination based on just causes:

a) a written notice served on the

employee specifying the ground

or grounds for termination, and

giving to said employee

reasonable opportunity within

which to explain his side;

b)

a hearing or conference during

which the employee concerned,

with the assistance of counsel if

the employee so desires, is givenopportunity to respond to the

charge, present his evidence or

rebut the evidence presented

against him; and

c) a written notice of termination

served on the employee

indicating that upon due

consideration of all the

circumstances, grounds have

been established to justify his

termination

For termination of employment based

on authorized causes;

a)

upon service of a written notice

to the employee and the

appropriate Regional Office of

the Department at least thirty

days before the effectivity of the

termination, specifying the

ground or grounds for

termination.

2. If the termination is justified by a valid

cause but done without observance of due

process, is the termination legal?

Generally, no because the law is very clear as to

the due process requirements that an employer who

seeks to terminate the employment of its employee

must notify him in writing at least 30 days before the

intended dismissed.

However, if an employee consented to his

retrenchment or voluntarily applied for

retrenchment with the employer the required

previous notice to the DOLE is not necessary as the

employee thereby acknowledged the existence of a

valid cause for termination of his employment.


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3. What is constructive dismissal? Is

preventive suspension exceeding thirty days

considered constructive dismissal?

Constructive dismissal is defined as quitting

because continued employment is rendered

impossible, unreasonable or unlikely, as an offer

involving demotion in rank and a diminution in pay.

Yes, preventive suspension exceeding 30

days is constructive dismissal because constructive

dismissal does not always involve forthright

dismissal or diminution in rank, compensation,

benefit and privileges.

There may be constructive dismissal if an act

of clear discrimination, insensibility, or disdain by anemployer becomes so unbearable on the part of the

employee that it could foreclose any choice by him

except to forego his continued employment.

4. Who has the burden of proof in criminal

cases?

The burden of proof rests upon the

employer to show that the dismissal is for

just and valid cause. Failure to do so would

necessarily mean that the dismissed was

not j

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