Labor Relations Box Questions - Azucena- Final

Labor Relations Answers to Boxed Questions in Azucena’s Labor Code Book II

1.

relations law?

matter concerning terms and conditions of

To promote and emphasize the primacy of

employment

relation of employer and employee.

democracy and the promotion of social

Remedies in Labor Disputes;

justice and development; To foster the free and voluntary organization of a strong and united labor movement; To promote the enlightenment of workers concerning their rights ansd obligations as

Grievance procedure.

b.

Conciliation

c.

Mediation

d.

Enforcement or compliance order

e.

Certification of bargaining

f.

To provide an adequate administrative

Arbitration (either Voluntary or Compulsory).

machinery for the expeditious settlement of labor or industrial disputes; To ensure a stable but dynamic and just industrial peace; and To ensure the participation of workers in decision and policymaking processes affecting their rights, duties and welfare.

Employer-employee relationship must exist so

a.

representatives.

union members and as employees;

2.

or

whether the disputants stand in the proximate

To promote free trade unionism as an instrument for the enhancement of

g.

association

and conditions of employment, regardless of

or industrial disputes;

f.

the

maintaining, changing or arranging the terms

and conciliation, as modes of settling labor

e.

or

representation of persons in negotiating, fixing,

including voluntary arbitration, mediation

d.

What are considered labor disputes? What are

Labor disputes are any controversy or

free collective bargaining and negotiations,

c.

Power to control the employee’s

Ans.:

Ans.: It is the policy of the State;

b.

d.

the available remedies?

What are the policy objectives of our labor

a.

Power to dismiss; and conduct.

3.

Box 1

c.

g.

Assumption of jurisdiction

h.

Certification of NLRC

i.

Injunction.

j.

Judicial action

k.

Appeal.

l.

Review by Court.

m. Compromise agreement.

Box 2

that labor relations relations may apply within an enterprise. What factors determine the

1.

What is the NLRC? Answer: The NLRC is the National Labor

existence of such relationship?

Relations Commission. It exercises exclusive appellate jurisdiction over cases decided by the

Ans.:

Labor Arbiter.

The existence of employer-employee relationship is determined determined by the presence of the following elements; a.

Selection and engagement of the employee

b.

Payment of wages

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

Bukidnon State University – College of Law Batch 2014

Secretary

of

Labor

merely

exercises

conditions of employment;

administrative supervision over the NLRC. Such supervision does not extend to the power to 4.

Claims for actual, moral, exemplary and other

review, reverse, revise or modify decisions of

forms of damages arising from the employeremployee relations;

the NLRC in the exercise of its judicial functions. 5.

3.

Cases arising from any violation of Article 264 of

How is the NLRC’s adjudicatory powers

this Code, including questions involving the legality

distributed?

of strikes and lockouts; and

Answer:

The

NLRC

“shall

exercise

its 6. adjudicatory and all other powers, functions

Except claims for Employees Compensation, Social

and duties through its divisions.” The “division”

Security, Medicare and maternity benefits, all other claims arising from employer-employee relations,

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.

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.

Box 3 7. 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, 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.

3.

What are “Corporate Disputes”? Who has jurisdiction over them?

Corporate disputes are controversies arising out of

intra-corporate or partnership relations, between and 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 as such 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

Unfair labor practice cases;

Regional

jurisdiction 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

Arbitration

over

the

Branch

workplace

having of

the

complainant or petitioner.

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:

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

a) governing the hearing and dispostition of cases before it and regional branches;

expedite adjudication or a pending dispute. Not meant to duplicate the visitorial-enforcement

b) pertaining to its internal functions

authority under Art 128.

c) those that may be necessary to carry out t

(vi) ADJUDICATORY POWER

he powers of this Code. (ii) POWER TO ISSUE COMPULSORY PROCESSES The Commission has the power to :

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

a) administer oaths;

iction to hear and decide "National I nterest" cases certif

b) summon parties;

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

c) issue subpoenas ad testificandum and duc es tecum

Appellate: The NLRC has exclusive appellate jurisdiction over all cases decided bu the lanor arbiters a

(iii) POWER TO INVESTIGATE AND HEAR DISPUTES WITHIN ITS JURISDICTION

nd the DOLE regional director or hearing of officers und er Art. 219.

The Commission has the power to: a) conduct investigations for the determinat

(vii) POWER TO ISSUE INJUNCTION OR TEMPOR ARY RESTRAINING ORDER

ion of a question, matter or controversy within

See Art 218 par. [e]

its jurisdiction; 2) Injunction is frowned upon in labor disputes. Wh

b) proceed to hear and determine the dispu tes in the manner laid down under paragraph (c) Art. 218 (now Art 224, 2013 Codal)

at are the pre-conditions before an injuctive writ be is sued? (See Art 218 par. [e]) (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)

>> 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.

(v). POWER TO CONDUCT OCULAR INSPECTION

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

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

ssion shall direct, to all known persons against who

any commissioner, labor arbiter or their duly

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

authorized representatives may, at any time

nd other public officials of the province or city with

during working hours:

in which the unlawful acts have been threatened or

a) conduct an ocular inspection on any est

committed charged with the duty to protect compl

ablishment, building, ship or vessel, place or premises, including any work, materiak, i

ainant's property; b.

mplement, machinery, appliance or any object

reception at the hearing of "testimony of witnesses , with opportunity for cross-examination, in suppor

therein;

t of the allegations of a complaint made under oath

b) ask any employee, laborer or any perso

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

n, as the case may be, for any information or data concerning any matter or question

a hearing held "after due and personal notice there

ered x x"; c.

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


(1) that the prohibited or unlawful acts hav e bee

c.

something (evidence)

n threatened and will be committed and will be continu d.

ed unless restrained, but no injunction or TRO shall be is sued on account of any threat,

Decision must be supported by Supporting evidence must be substantial

prohibited or unla

e.

wful act, except against the person or persons, associati

Decision must be rendered on the evidence presented or at least

on or organization making the threat or committing the

contained in the record and

prohibited or unlawful act or actually authorizing or ratif

disclosed to the parties affected

ying the same after actual knowledge thereof;

f.

The body or any o f its judges must act on its own independent

(2) that substantial and irreparable injury to co

consideration of the law and

mplainant's property will follow;

facts, and not simply accept the

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

views of the subordinate in

reater injury will be inflicted upon the complainant by t

arriving at a decision: and

he denial of relief than will be inflicted upon defendants

g.

by the granting of relief;

Decide in such a manner that parties can know the various

(4) that the complainant has no adequate reme

issues involved and the reason for

dy at law;

the decision.

(5) that the public officers charged with the duty to protect complainant's property are unable or unwillin

2.

and decided?

g to furnish adequate protection.



Box 5 1.

How are compulsory arbitration cases heard The NLRC or Labor Arbiter to deicide case on the basis of position papers and other

Technical rules are not strictly followed in

documents submitting without resorting to

proceedings before the NLRC and the Labor

technical rules of evidence as observed in

Arbiter. How is this rule reconciled with the

the regular court of justice. The evidence

requirement of procedural due process?

presented before it must at least have a modicum of admissibility for it to be given

*Simplification of procedure, without regard to

some probative value. Not only must there

technicalities of law or procedure and without

be some evidence to support a finding or

sacrificing the fundamental requisites of due

conclusion,

process.

substantial. Substantial evidence is more

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

that a mere scintilla. It means such

is not narrowly constrained by the technical

relevant evidence as a reasonable mind

rules of procedure. However this does not

might accept as adequate to support a

mean that it can entirely ignore or disregard

conclusion.

the fundamental and essential requirements of due process in trials and investigation of administrative character. There are cardinal

but

evidence

must

be

Box 6 1.

A labor arbiter’s decision is appealable to the

primary rights which must be respected even in

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

proceedings of this character:

When?

a.

Right to hearing

b.

Tribunal must consider the

ANS: As provided by law, labor arbiter’s

evidence presented

decision is appealable to the NLRC within 10


calendar days from receipt of such decision only on any of the following grounds: a.

b.

A

motion

for

reconsideration

is

not

a

prerequisite in order that an appeal maybe

If there is a prima facie evidence

perfected because technical rules is not binding in

of abuse of discretion on the part

labor cases. Hence, if a motion for reconsideration

of the Labor Arbiter;

is filed, it considered an appeal, provided that all

If

the

decision

through

fraud

was or

secured

the requisites for perfection of appeal are present

coercion,

including graft & corruption; c.

If made purely on questions of law; and

d.

3.

jurisdiction?

If serious errors in the findings of fact are raised which would cause

ANS: The NLRC shall, in case of perfected

grave or irreparable damage or

appeals, limit itself to reviewing those issues

injury to the appellant.

2.

which are raised on appeal. Those which are not raised shall be final & executory.

At each level of appeal what are the prerequisites? Is a motion for reconsideration a prerequisite?

4.

ANS: The decision or order of the NLRC or a

perfection of appeal:

Labor Arbiter that finally disposes of a case is

It must be filed within the

enforced by an order or writ of execution upon

reglementary period; b.

motion of the winning party or upon the

It must be verified by appellant

initiative of the Labor Arbiter or the NLRC that

himself; c.

issued such decision. A copy of such decision or

It must be in the form of a

order should have been furnished to the

memorandum of appeal in three (3)

legibly

typewritten

parties and their counsels or authorized

copies

representatives.

which shall state the grounds relied

upon,

the

supporting

arguments, the relief prayed for&

5.

the appealed decision or order.

ANS: As a general rule, Regional Trial Court has

The appeal memorandum should

no jurisdiction to issue temporary restraining

be accompanied by a certificate

order in labor cases. However, when a third-

of non-forum shopping, proof of

party to the action, asserts a claim over the

service on the other party, proof

property levied upon, the third-party may

of payment of appeal fee, & cash

vindicate his claim by an independent action

or surety bond. If

the

judgment

May a regional trial court issue an injunction against a NLRC decision?

the date the appellant received



How is a final decision of the labor arbiter or the NLRC executed?

ANS: The following are the perquisites for the a.

What are the limits to NLRC’s appellate

which may stop the execution. Thus, the above-stated rule applies only when there is no

includes

third-party claimant is involved.

monetary award, appeal is perfected by posting a bond in a form money or security bond.

Box 7 1. What kind of cases fall within BLR's jurisdiction.?


Inter/intra union dispute

the Regional Office which has jurisdiction over the place where it principally operates.

cba registration Multi-employer collective bargaining agreements shall Labor education 2. May labor standards violations be settled by

be filed with the Bureau When to file:

compromise? How this done?

within 30 days from execution of the CBA. It must be voluntarily agreed upon by the parties with the assistance of the BLR or the regional office of DOLE-

Requirements for registration

final and binding upon the parties and ca n no longer be repudiated.

The application for CBA registration shall be accompanied by the original and 2 duplicate copies of

The only time NLRC or any courts can assume

the following documents.

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 of its substantial requirement is that it must not be contrary to law, morals or public policy. Thus, this

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 f ollowing 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.

agreement must not set terms contrary to what the law

2. Action upon the application fir registration within 5

requires as minimum standards.

calendar days from receipt thereof.

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

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

Registration of Collective Bargaining Agreements Where to file: With the Regional Office which issued the certificate of registration/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

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.

Box 8


1.

a. b.

c.

d.

e.

a.

b.

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. Any applicant 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. Fifty pesos (P50.00) registration fee; 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; The names of all its members comprising at least twenty percent (20%) of all the employees in the bargaining unit where it seeks to operate; (As amended by Executive Order No. 111, December 24, 1986) If the applicant union has been in existence for one or more years, copies of its annual financial reports; and 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: 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 applicant federation or national union; and 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 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 and chapters 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 a CBU. 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.

Merger of labor organizations is the process where a labor organization absorbs another resulting in the cessation of the absorbed labor organization’s 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.”

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 the principal 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;

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, 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 locals and 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.

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 bargaining agent. The CBA continues to bind the members of the new or disaffiliated and independent union u p to the CBA’s expiration date. 4.

How do unions merge or consolidate?

5.

On what grounds and upon whose petition may a union’s 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 union’s registration, except in actions involving violations of Article 241, which can only be commenced by members of the labor organization c oncerned.” The employer is a “party in-interest”, and jurisprudence reveals cases of cancellation of union registration based on petitions filed by the employer.

Box 9 1.

2.

What are the rights of union members? a. Political right – members 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 officers compensations, on proposed special assessments and be deducted a special assessment only with the members written authorizations. d. Right to information – right to be informed about the org’s constitution and by -laws and CBA and about labor laws. 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 union’s constitution and by laws or to agreements among the members. In the absence thereof, book V applies. How may they be impeached or removed? 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 impeachment charges 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 union’s 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; - Member’s resolution should be followed by an application for cancellation passed and submitted by the unions governing board, which must be attested to by the president. 4. What is check-off? When may it properly be done? Check-off is a method of deducting  from an employee’s 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 check‐off authorizations. 


Box 10 1.

What are the rights of a legitimate labor

1.

organization?

In the private and public sectors, who are the persons allowed and not allowed to

The following are the rights of a

form and join labor organization?

legitimate labor organization: (Art. 242) 1.

2.

To act as representatives of its

>In private sectors all person employed in

members for the purpose of

commercial, industrial and agricultural

collective bargaining.

enterprise and in religions, charitable,

To be certified as the exclusive

medical/educational institutions whether

representative

the

for profit or not are allowed to form or join

appropriate

labor organization. Ambulant, intermittent

employees collective 3.

in

an

all

bargaining

unit

for

and

itinerant

workers,

self-employed

purposes of collective bargaining.

people, rural workers and those without

To be furnished by employer,

any definite employees may form/join

upon written request, with its

labor organization.

annual 4.

of

audited

financial

statements.

>Those

To own property, real or personal,

employees of such cooperative who is a

for the use and benefit of the

member

labor

employees.

organization

and

its

who

are

and

not

co-owner;

allowed

are

Managerial

members. 5. 6.

To sue and be sued in its

>In public sectors, employees of Govt.

registered name.

Corporation

To undertake all other activities

corporation code shall have the right to

designed

the

organize with their respective employers.

organization and its members,

All other employees in civil service shall

including

have the right to form association for

to

benefit

cooperative,

housing

welfare and other projects not

established

under

the

purpose not contrary to law.

contrary to law. 7.

Its income, properties, grants,

>Exempted employees are those members

endowments,

donations,

of the AFP, including police officers,

and contributions, used for their

policemen, fireman and jai guard; High

lawful purposes, shall be free

level employee.

from

taxes,

gifts,

duties

and

assessments, except when this

2.

What law governs labor realations in the

provision is expressly repealed by

public secto?

a special law.

>The law that governs in the public sector is the Civil Service Law.

2.

May a union, as representative, settle by compromise its members’ money claims?

No. The exception is when there is a

3.

May government employees hold protest actions? May they go on a strike – legally?

specific individual consent of each laborer concerned.

Box 11

>Yes, the resolution of complaint and cases involving govt. employees is not ordinarily

left

to

collective


bargaining/other related activities but to civil service law and labor law whenever applicable.

Box 12 1.

Unfair Labor practice is an act of abridgment

>Terms and condition of employment in

which Article 246 prohibits. Is it ULP to stop

govt. including any political subdivision or

“protest action” by ununionized employees?

instrumentality thereof and GOCC with

Ans.:

original charters are governed by law, the

Because self-organization is a prerequisite —

employees therein shall not strike for

the lifeblood —of industrial democracy, the right

purpose of securing changes thereof.

to self-organize has been enshrined in the Constitution, and any act intended to weaken or

4.

In the private sector how does a manger

defeat the right is regarded by law as an offense.

differ from a supervisor?

ULP, therefore has a limited, technical meaning

>In private sector a manager differs from a

because it is a labor relations concept with a

supervisor is that a manager makes policy

statutory definition. It refers only to acts opposed

decision or people decision/both, while

to workers right to organize. Without the element,

supervisor recommends those decisions.

the act, no matter how unfair, is not unfair labor

One is a decision maker while the other

practice as legally defined.

recommends.

2. 5.

Supervisor and rank and file employees

Under article 247, ULP is both civil and criminal offense. Why?

cannot join the same union. What happens if they do?

Ans.:

>As a rule the inclusion as union members

6.

The victim of the offense is not just the

of employees outside the bargaining unit

workers

shall not be ground for the cancellation of

employers who value industrial peace, but the

registration of the union. Said employees

State as well. Thus, the attack to constitutional

are automatically deemed removed from

right is considered a crime which therefore carries

the list of membership of said union.

both civil and criminal liabilities.

Who

are

considered

confidential

3.

as

a

body

and

the

well-meaning

What are the elements of ULP as an offense?

employees? May confidential employee join unions?

Ans.: First, there is employer-employee relationship

>Confidential employees assist and act in a

between the offender and the offended; and

confidential capacity to, or have access to

Second, the act done is expressly defined in the

confidential matters of, persons who

Code as an act of unfair labor practice.

exercise managerial functions in the field of labor relations.

Box 13 1.

>Confidential employees cannot form, join, or assist 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.

What acts are considered unfair labor practice by an employer? Answer:

Art.

enumerated

248 unfair

of

the

labor

Labor practices

Code of

employers.


a.

b.

c.

To interfere with, restrain or coerce

3.

Is it ULP for an employer to contract out jobs

employees in the exercise of their right to

being done by union members?

self-organization.

Answer: No. It is not ULP for an employer to

To require as a condition of employment

contract out jobs being done by union

that a person or an employee shall not join

members UNLESS such act will interfere with,

a labor organization or shall withdraw

restrain, or coerce employees in the exercise of

from one to which he belongs.

their

To contract out services or functions being

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

performed by union members when such

intention that makes it so.

right

to

self-organization.

Hence,

will interfere with, restrain or coerce employees in the exercise of their right to d.

e.

4.

Is it ULP for an employer to favour a particular

self-organization;

union?

To initiate, dominate, assist or otherwise

Answer: Yes, if the act of favouring a particular

interfere

union amounts to domination of a labor union

with

the

formation

or

administration of any labor organization,

such as in the following:

including the giving of financial or other

initiation of company union idea; giving

support

financial support to the union; employer

to

it

or

its

organizers

or

supporters;

encouragement

and

To discriminate in regard to wages, hours

supervisory assistance.

assistance;

and

of work, and other terms and conditions of employment in order to encourage or

f.

h.

i.

Is it lawful to compel an employee to join a

discourage membership in any labor

union?

organization.

Answer: No. There is a form of encouragement

To

dismiss,

prejudice

g.

5.

or

employee for having given or being about

enters into a collective bargaining agreement

to give testimony under this Code;

containing a union security clause. A union

To violate the duty to bargain collectively

security

as prescribed by this Code;

membership in the union so that an employee

To pay negotiation or attorney’s fees to

may retain h is job and the union’s existence is

the union or its officers or agents as part of

assured. It is compulsory union membership

the settlement of any issue in collective

whose

bargaining or any other dispute;

existence of the union. In a sense, there is

a

collective

against

of union membership which is not considered ULP. This is where the management and union

violate

discriminate

otherwise an

To

or

discharge

bargaining

clause

objective

essentially

is

to

assure

requires

continued

discrimination when certain employees are

agreement.

obliged to join a particular union. But it is discrimination favouring unionism; it is a valid

2.

What is the discrimination that may constitute

kind of “discrimination.”

ULP? Answer: To constitute an unfair labor practice,

Box 14

the discrimination committed by the employer

1.

must be in regard to the ‘hire or tenure of

What acts are considered ULP by a Labor organization?

employment or any term or condition of employment to encourage or discourage membership in any 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.)

for membership, and a closed-shop provision

To restrain or coerce employees in the

exercise of their right to self-organization. However, a labor organization shall have the right

would not justify the employer in discharging,

to prescribe its own rules with respect to the acquisition or retention of membership;

employee whom the union thus refuses to

or a union in insisting upon the discharge of, an admit to membership, without any reasonable ground therefor.

b.)

To cause or attempt to cause an employer

4.

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

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

other than the usual terms and conditions under which membership or continuation of membership

employer to pay or deliver or agree to pay or deliver any

is made available to other members;

exaction, for services which are not performed or not to

money or other things of value, in the nature of an be performed, including the demand for fee for union

c. ) To violate the duty, or refuse to bargain collectively with the employer, provided it is the

negotiations; refers to “featherbedding”, a term given

representative of the employees;

employment by ‘unnecessarily’ maintainin g or

to employee practices which create or spread increasing the number of employees used,or the

d. )

To cause or attempt to cause an employer

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

to pay or deliver or agree to pay or deliver any money or other things of value, in the nature of an

No. Most of these practices stem from a desire on

exaction, for services which are not performed or

the part of employees for job security in the face of

not to be performed, including the demand for fee

technological improvements or in the face of e mployer

for union negotiations;

subcontracting. However, most courts at common law found these practices to be economically wasteful and

e .)

To ask for or accept negotiation or

without any legitimate employee justification.

attorney’s fees from employers as part of the

settlement of any issue in collective bargaining or

Box 15

any other dispute; or f.) To violate a collective bargaining agreement

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

2.

May a union charge with ULP another union in the same enterprise ? No, Unfair Labor Practices can only be invoked by an employee against an employer

3.

motion only when the following jurisdictional preconditi ons are present, namely: (1) possession of the status of majority representation of the employees' representativ

and and by a union member against the labor

e in accordance with any of the means of selection or de

union when such employer or labor union

signation provided for by the Labor Code; (2) proof of m

violates the Constitutional right of workers or

ajority representation; (3) a demand to bargain under A

Employees to self-organization.

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

May a union member charge with ULP his own union? Yes. Labor Union can be charged with

ctional preconditions are present, the collective bargaini

ULP by a union member where in a case such Union arbitrarily exclude qualified applicants

ng should begin within 12 months following the determi nation and certification of the employees' exclusive ba r gaining representative.


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

gain or not to bargain.

eement or other voluntary arrangement providing for a more expeditious manner of collective bargaining, it sha ll be the duty of the employer and the representatives o f the employees to bargain collectively in accordance wi th the provisions of this Code."

5) What are the requirements of valid ratification of

a CBA? >> The agreement negotiated by the employees' b argaining agent should be ratified or approved by the m ajority of all the workers in the bargaining unit. The post

2) The prevailing practice is single enterprise bargai

ning. Is multi-employer bargaining allowed?

ing of the CBA in two conspicuous places for five days is also required.

>> Yes. Multi-employer bargaining unit is particula rly advantageous to both sides in industries composed o f many small, financially weak employers.

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

fective? May its life be e xtended by non-renewal or by mutual agreement?

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

olation of which may constitute ULP? >> There are four essential elements:

>> It has been held that a CBA was effective on rati fication by union members. >> RA No. 6715 has introduced through Art. 253-A a significant change in setting the durations or terms of

otiating an agreement. Its contents specify the terms and c onditions of employment (e.g., salary/wage increase, be

a CBA at five years for the "representation aspect" and not more than three years for "all other provisions". >> Art. 253 provides, It shall be the duty of both pa rties to keep the status quo and to continue in full force

Political. The agreement is a product of a neg

and effect the term and conditions of the existing agree ment during the 60-day period and/or until a new agree

Moral. It involves a system of shared responsi bility and decision- making. Forms of ULP

ment is reached by the parties.

Box 16 1.

What are the methods of selecting the union

a) failure or refusal to meet and convene;

that will bargain with the employer?

b) evading the mandatory subjects of bargainin

a.) Voluntary recognition b.) Certification Election

g; c) bad faith in bargaining including failure or ref usak to execute the collective agreement, if requested; d) gross violation of the CBA

c.) Consent election

2.

What is certification election (C.E.)? Who can petition for a C. E.? *Certification election is the process of determining through secret ballot the sole and

4) What are the compulsory and optional subjects o

f bargaining? >> The mandatory subjects of collective bargaining are wages, hours of work and all other terms and condit ions of employment. Those matters outside the terms a

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

nd conditions of employment are not within the employ

federation that has issued a charter certificate

er's duty to bargain, such other matters he is free to bar

to its local/chapter.


Box 17 3.

On what grounds may a petition for C. E. be denied?

1.

A CBA is said to be the law between the parties. What are the consequences of its violation?

*Med-arbiter may disapprove or deny the petition to hold a C.E. on the following ground:

ANS: If the violation of the CBA is not gross, it is a.) Non- appearance

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

b.) Illegitimacy-Unregistered Union

practice.

c.) Illegitimacy- no charter In the event of any violation in the d.) Absence of employment relationship

CBA, the aggrieved party has the right to go to court for redress.

e.) election bar- the 12 month bar f.) election bar- negotiation or deadlock

2.

A CBA is in personam. What are the implications? The exceptions?

g.) election bar- existing CBA ANS: CBA is said to be in personam, thus, it h.) election bar-lack of support

4.

implies that labor contracts is only binding between the parties and it does not create any

Who votes in C. E.? Who wins?

real right which should be respected by third

*all employees who are members of the

parties.

appropriate bargaining unit sought to be represented by the petitioner at the time of

However, as an exception to the said

the issuance of the order granting the conduct

rule, the parties may be held liable to the

off a certification election shall be eligible to

employees if the transaction between the

vote.

parties is colored or clothed with bad f aith.

* 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

3.

What is “grievance machinery” & why is it

required 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.

CE proceedings. It is intended to promote friendly

6.

What is meant by “ duty of fair

dialogue between labor and management as a

representation”?

means of maintaining industrial peace and

*this duty, enjoined explicitly in American

therefore considered to be an extension of the

jurisprudence and implicitly in Philippine law,

parties to bargain as required by law.

obligates the majority union to serve the interest of all members of the whole bargaining unit without hostility or discrimination.


4.

In what cases is resort to the grievance machinery a prerequisite or jurisdictional, and

ANS:

when is it optional?

arbitration is based on the labor code and its

The

rules

that

governs

voluntary

implementing rules & regulations, the CBA, & ANS: Resort first to grievance machinery is

other agreement of the parties, the directives

jurisdictional when it is expressly & validly

of the arbitrator, & the procedural guidelines in

entered into the CBA. Hence, all grievances

conduct of voluntary arbitration proceedings.

arising

from

the

implementation

or

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

Box 18

are compulsory subject to the grievance 1. Concerted activity – an activity undertaken by two or

machinery.

more employees, by one on behalf of others. However, resort to the said grievance machinery may be optional when it is proven to be ineffective in the past, or when the

2. Factors to be examined Factors affecting legality of strike:

parties inadvertently failed to include a

5.

grievance machinery provision in the CBA.

1. Statutory prohibition

Who are voluntary arbitrators? In what sense

2. Procedural requirements of the law

are they “voluntary”? Are their decisions

appealable?

3. Purpose must be ULP and economic 4. Lawful means and methods

ANS: Voluntary Arbitrators consist of persons mostly involved as employees or officials in the

5. Injunction

government or in education, civic, and religious institutions,

trade

union

organizations

&

private enterprises.

3. Government Employee may strike?

They are considered to be voluntary in

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

the sense that they are chosen by the parties

it must necessarily regard the right to strike given to

themselves, thus the preferred method of

unions in the private industry as not applying to public

selection of voluntary arbitrators is by mutual

employees.

agreement of the parties. Moreover, the csc declared that the right to self As

a

general

rule,

decisions

of

Voluntary Arbitrator must be accorded with

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

finality, however, the Supreme Court may take

prohibited concerted activity or mass action causing or

cognizance a petition for certiorari by the

intending to cause work stoppage or service disruption,

aggrieved party under Rule 65 of the Rules of

albeit of temporary nature.

Court which allege a grave abuse of discretion or an act without or excess of jurisdiction on the part of the Voluntary Arbitrator.

6.

organization accorded to government employees shall

What rules govern voluntary arbitration?

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. (People’s Industrial

and Commercial Employees and Workers Organization (FFW) v. People’s Industrial and Commercial C orp. GR

No. 37687 15 March 1982

May employer hire workers in place of strikers?

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

5. Striker and employer may not do on occasion of

unfair labor practice strike, such replacements may not

strike.

be permanently employed. In case of d efiance of return to work order, or certification or assumption order, a

Prohibited activities [Art.264]

hearing is not required for the employer to validly hire replacement for workers who committed the defiance.

(a) No labor organization or employer shall declare a strike or lockout without first having bargained

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

collectively in accordance with Title VII of this Book or

subjected to police power?

without first having filed the notice required in the preceding Article or without the necessary strike or

Labor dispute involving national interest. When there

lockout vote first having been obtained a nd reported to

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

the Ministry.

lock out in an industry indispensable to the national interest. The power of (a) assumption of jurisdiction and

No strike or lockout shall be declared after assumption

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

of jurisdiction by the President or the Minister or after

Compulsory arbitration by the secretary of labor is in

certification or submission of the dispute to compulsory

nature a police power measure.

or voluntary arbitration or during the pendency of cases involving the same grounds for the strike or lockout.

7.No Strike-No Lockout Clause valid?

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

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

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

stipulation although the clause may be invoked by an

peaceful picketing by employees during any la bor

employer only when the strike is economic in nature or

controversy or in the exercise of the right to

one which is conducted to force wage or other

selforganization or collective bargaining, or shall aid or

concessions from the employer that are not mandated

abet such obstruction or interference.

to be granted by the law itself. It would be inapplicable to prevent a strike which is gr ounded on unfair labor

(c) No employer shall use or employ any strike-breaker,

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

nor shall any person be employed as a strike-breaker.

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

(d) No public official or employee, including officers and personnel of the New Armed Forces of the Philippines

Box 19

or the Integrated National Police, or armed person, shall bring in, introduce or escort in any manner, any individual who seeks to replace strikers in entering or leaving the premises of a strike area, or work in place of the strikers. The police force shall keep out of the picket lines unless actual violence or other criminal ac ts 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 employer’s premises

for lawful purposes, or obstruct public thoroughfares.

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 consi dered “unfair to 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.

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 without work 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?

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 to the 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 is entirely different from, without any connection whatsoever to, either party to the dispute and, therefore, its interests are totally foreign to the context thereof.

The word “strike” in its broad significance has reference to a dispute 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 picket and 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 hi m 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.



means or where they attempt to attain unlawful objectives; or When they personally authorized or participated in the particular acts.

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

Box 20

4. Seasonal employment 5. Probationary employment 6. Fixed-term employment

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 who  offered 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 illegal act 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

(but marag pwd ra muingon og regular and temporary employment)


The right to security of tenure shall be enjoyed

by

employees

in

all

kinds

4.

of

Who is considered “regular seasonal” and “regular casual” employee?

employment. (According to Consti and court

A regular seasonal employee is one

rulings. Art 279, which recognizes security of

who is called to work from time to time.

tenure only to regular employees, is defective.)

During a season they are employed;

(But if dli regular employee, ang security of

temporarily laid off during off-season. They

tenure kay for a limited period lng pud. Hehe!)

are not, strictly speaking, separated from the service but are merely considered on

2.

What is project employment? When does a

leave of absence without pay until they are

project employee becomes regular?

reemployed.

A project employment is one whereby the employment has been fixed

A regular casual employee is one

for a specific project or undertaking, the

who has rendered at least one year of

completion or termination of which has

service, whether continuous or broken with

been determined at the time of the

respect to the activity in which he is

engagement of the employee or where the

employed. He is regular only for that work

work or service to be performed is seasonal

activity for which he was hired. His

in nature and the employment is for the

employment may be on-and-off, but every

duration of the season.

time the particular work activity occurs, he is the one to be rehired. (He is originally a

A project employee becomes a

casual employee. After 1yr he becomes a

regular employee when he is repeatedly

regular casual ee)

rehired and his services continually needed for a long span of time.

5.

What are the rights of a probationary employee?

3.

What

are

the

employment

kinds and

of

fixed-period

under

The following are the rights of a

what

probationary employee:

circumstances are they considered valid? The following are the kinds of fixed-period employment: naread nga kinds

1.

Security of tenure;

2.

To be considered a regular

( sorry, wla koy

employee if he is allowed to

)

work after the probationary period.

The fixed-period employment shall be considered valid when:

6.

(1.) it is entered into by the parties

May the employer contract out a regular job?

without force, duress or improper pressure

Yes, an employer may contract out

being brought to bear upon the employee

a regular job, provided that it is done in

and absent any other circumstance vitiating

good faith and justified by exigencies of the

consent; or

business.

(2.) it satisfactorily appears that the employer and the employee dealt with

Box 22

each other on more or less equal terms with no moral dominance exercised but he former or the latter. (Brent Doctrine)

1.

Serious misconduct as a valid reason of dismissal require a certain elements. What are those?


>The misconduct to be serious

C. It may not be arbitrarily asserted

must be of such a grave aggravated

in

character and not merely trivial or

evidence to the contrary.

unimportant.

D. it must be genuine, not mere

the

face

afterthought

2.

of

to

overwhelming

justify

earlier

If an employee, on ground of

action taken in bad faith.

inconvenience,

E. Employee involved holds a

disobeys

and

order transferring him to another location

or

job,

may

position of trust and confidence.

such

employee be dismissed? Box 23 >In order to constitute a valid reason to dismiss an employee for disobeying

an

order

requisite

must

the

two

concur

(1)

1.

In what respects are the “authorized causes” and the “ just causes” the same

and different?

employee’s attitude wrongful and

perverse and (2) qualities of the

Ans. They are the same in the sense that

order – lawful, reasonable, made

they

known

and

termination of employment and differs in

pertain to the duties of the

the sense that dismissal for just cause is

employee when it shown that it is

where an employee is dismissed for causes

unnecessary,

and

which are attributable to his fault or

displaced

culpability while termination for authorized

to

prejudicial

the

employee

convenient, to

the

are

the

causes

and

modes

of

cause is where an employee is dismissed for

employee such dismissal is valid.

causes independent of his fault.

3.

Is ignorance an excuse for having In just cause a dismissed employee is

violated a company policy or regulation?

not entitled to separation pay while in

>Yes, ignorance of company policy

authorize cause is entitled to separation

or regulation may be an excuse

pay.

when the act or omission is not grave or where the act does not

2.

What are the authorized causes and the corresponding rates of separation pay?

constitute gross negligence.

What authorized cause does not entail 4.

Under

what

conditions

or

payment of separation pay?

circumstances may an employee be dismissed on ground of loss of

Ans.

The following are the authorized

confidence?

causes

and

corresponding

rates

of

separation pay: A. Loss of confidence should not be

a.

Automation/Robotics and Redundancy

simulated

– equivalent to at least one month pay

B. It should not be used as a

or at least one month pay for every

subterfuge for causes which are

year of service, whichever is higher, a

improper illegal/unjustified;

fraction of six(6) months is considered as one (1) year.


b.

Retrenchment – equivalent to one

a.

month pay or at least one-half month

not merely de minimis in extent;

pay for every year of service, whichever

c.

b.

The apprehended substantial loss are

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

reasonably imminent, can be perceived

considered as one (1) whole year.

objectively and in good faith by the

Closures or cessation of operations not

employer;

due to serious business losses or

c.

Retrenchment

must

be

reasonably

financial reverses – equivalent to one

necessary to prevent the expected

month pay or at least one-half month

losses; and

pay for every year of service, whichever

d.

The losses expected are substantial and

d.

Expected or actual losses must be

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

proved by sufficient and convincing

considered as one (1) whole year.

evidence.

Disease- equivalent to at least onemonth salary or to ½ month salary for

Box 24

every year of service, whichever is greater, a fraction of at least 6 months shall be considered one (1) whole year.

1.

In employment termination what does procedural due process consists of- for the

The following are the authorized cause

just causes? For the authorized?

that does not entail payment of separation pay:

Ans. As a general rule the law requires that the employer must furnish the worker

a.

b.

If due to severe business losses or

sought to be dismissed with two written

financial reverses there is no

notices before termination of employment

separation pay due;;

can be legally effected.

Closure

due

to

an

act

of For termination based on just causes:

government. 3. How does preventive retrenchment differ from

a)

redundancy?

a written notice served on the employee specifying the ground or grounds for termination, and

There is retrenchment where employer

giving

reduces the number of its personnel in order to

will

be

redundancy

when

said

employee

reasonable opportunity within

prevent further losses in his business operations. There

to

which to explain his side; for

b)

a hearing or conference during

purposes of economy a company decides to

which the employee concerned,

reorganize

on

with the assistance of counsel if

employees of one department the duties performed

the employee so desires, is given

by the employees of the other department, thus

opportunity to respond to the

rendering unnecessary the job of the latter, the

charge, present his evidence or

services of the employees whose functions are now

rebut the evidence presented

being performed by the former, may be validly

against him; and

its

departments

by

imposing

c)

terminated on the ground of redundancy.

a written notice of termination served

4.

Explain

the

four

standards

of

a

valid

indicating

on

the that

employee upon

due

retrenchment (SINS)


consideration

of

all

the

circumstances,

grounds

have

dismissal or diminution in rank, compensation, benefit and privileges.

been established to justify his There may be constructive dismissal if an act

termination

of clear discrimination, insensibility, or disdain by an For termination of employment based

employer becomes so unbearable on the part of the

on authorized causes;

employee that it could foreclose any choice by him except to forego his continued employment.

a)

upon service of a written notice to

the

employee

and

the

appropriate Regional Office of

4. Who has the burden of proof in criminal

cases?

the Department at least thirty The burden of proof rests upon the

days before the effectivity of the termination, ground

specifying

the

employer to show that the dismissal is for

grounds

for

just and valid cause. Failure to do so would

or

necessarily mean that the dismissed was

termination.

not justified and therefore, was illegal.

2.

If the termination is justified by a valid cause but done without observance of due process, is the termination legal?

1.

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 day s before the intended dismissed. However, if an employee consented to his retrenchment

or

voluntarily

Box 25

applied

for

If the termination is based on any authorized cause, the employee is entitled to separation pay, and nothing if it is due to a just cause. What are the exceptions? As a general rule, employee is not entitled to separation pay if cause of dismissal is due to an act imputable to him. Exceptions to these are as follows, to wit; a)

retrenchment with the employer the required previous notice to the DOLE is not necessary as the

When the court finds justification in applying the principle of social justice well entrenched in 1987 Constitution.

employee thereby acknowledged the existence of a If the act committed by the employee does not amount to serious misconduct or does not reflect on the employee’s moral character, the court may require the employer to pay as a measure of social justice, separation pay to the employee.

valid cause for termination of his employment.

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

b)

On the ground of compassionate justice.

c)

It is stipulated in the employment contract or collective bargaining agreement (CBA), or it is in by established employer practice or policy.

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


2.

in arriving at a complete and just resolution of the case or to serve the interests of justice or to avoid dispensing piecemeal justice. Substantive rights like the award of backwages resulting from illegal dismissal must not by a rigid and technical application of the rules.

What are the kinds of separation pay? Under the present law and jurisprudence separation pay may be viewed in four ways or contexts: a)

b)

Separation pay as financial assistance, as an act of social justice, even in cases where the employee is ordered reinstated but reinstatement is not feasible;

c)

Separation pay in lieu reinstatement in illegal dismissal cases where the employee is ordered reinstated but reinstatement is not feasible;

d)

3.

Separation pay as employer’s statutory obligation in cases of legal termination due to authorized causes under Article 283 or 284;

4.

Separation pay as an employment benefit granted in CBA or company policy.

In what situations may reinstatement be denied even if the termination is invalid? a)

I f between the time the wrongful discharged occurred and reinstatement order was issued, the employer’s commercial or financial circumstances have changed, the court cannot compel the employer, despite the unfair labor practice , to reinstate such number of employees as may exceed his needs under the altered conditions.

b)

Illegally dismissed employee who is approaching or has reached the retirement age shall not be ordered reinstated.

c)

Reinstatement not feasible due to strained relations.

May backwages be awarded on appeal if the employee did not appeal its denial? 5. Earlier court decisions gave different answers: one ignored technicality adisnd granted the backwages, the other denied backwages because of technicality. By 2001 the more liberal decision has prevailed. In St. Michael’s Institute, the court state that, “ The NLRC did not award backwages to the respondents or that the respondents themselves did not appeal the NLRC decision does not bar the Court of Appeal from awarding backwages. While as a general rule, a party who has not appealed is not entitled to affirmative relief other than the ones granted in the decision of the court below, the Court of Appeals is imbued with sufficient authority and disretion to review matters, not otherwise assigned as or rrors on appeal, if it finds that their consideration is necessary

In termination disputes, what is indemnity? May it be imposed in addition to backwages ? Indemnity is meant to vindicate or recognize the right of an employee to due process which have been violated by the employer. The Wenphil doctrine says essentially that a dismissal for a valid reason is legal and valid, but the employer who does not observe procedural due process must pay some indemnity. As a general rule, indemnity is imposed for the failure of the employer to observe due process requirement as enunciated in the Constitution. The Serrano ruling which grants full backwages is not meant to do away with indemnity to the employee


whose right to due process was violated; that is, the indemnity is aside from the full wages. Backwages-is based on equity to workers for earnings lost due to their illegal dismissal from work.

6.

Is a manager personally liable for the illegal dismissal of an employee? As a general rule the manager is not personally liable for the illegal dismissal of an employee as enunciated in Sunio Doctrine. Generally, officers of a corporation are not personally liable for their official acts unless it is shown that they have exceeded their authority. However, the legal fiction that a corporation has a personality separate and distinct from stockholders and meto evadembers may be disregarded. Where the incorporators and directors belong to a single family, the corporation and its members can be considered as one in order to avoid its being used as an instrument to commit injustice, or to further an end subversive of justice. The shield of corporate fiction should be pierced when it is deliberately and maliciously designed to evade financial obligations to employees. Directors are guilty of gross negligence or bad faith in directing the affairs of the corporation shall be liable jointly and severally for all damages resulting therefrom suffered by the corporation, its stockholders or members or other persons.


Labor Relations Box Questions - Azucena- Final

Recommend Documents