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LABOR LAW
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Labor Standards
Labor Relations
Social Legislation

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2011 CENTRALIZED BAR OPERATIONS

64
Social Security System (R.A. 1 161 as amended by

GovernmentServicelnsuranceSystem(R.n.

R.A.8292........ "142

g2g1)................. 14g

LimitedPortabilityLaw(R.A.76gg).................
Employee's.Compensation and State lnsurance Fund (p.D.626) 155
Paternity Leave Act of 1996 (R.A. 3187)............ ............;..... 160
Retirement Pay Law (R.A. 7641Amending Art. 287 of LC)........-... 161
Anti.dexualHarassmentAct(R.A.7877).......
ActsAgainstChildLakior(R.A.9231).................

Month Pay Law (P.D.851).........


Migrant Workers and Overseas Filipino Act of 1995 (R.A. gO42)
as amended and further amended by R.A. 1AO2L.....
Magna Carta for Women (R.A. 9710).......
Magna Carta for the Disabled Persons (R.A.9442).................
13th

Bibliog

raphy.....

166
168

172
174
....................r................,.......................... 176

This is the intellectual property of the


san Beda college of Law zall centralized Bar operations.
Unauthorized use and reproduction of this material is prohibited.

LABOR LAW
LABOR RELATIONS

b.
c.
TITLE ONE: POLICY AND DEFINITIONS

d.

Labor Relations - the interactions between


the employer and employees and their
representatives and the mechanism by which
the standards and other terms and conditions
of employment are negotiated, adjusted and
enforced. (The Labor Code with Comments
and Cases 2007, Azucena, vol. ll, p.10)

Labor Relations Laws - define the status,


rights, and duties and the institutional
mechanisms that govern the individual and

collective interactions of employers,


employees or their representatives.
{Everyone's Labor Code, Azucena,2007, p.4)

Collective
negotiations;

bargaining

Peaceful and concerted activities


including the right to strike in

accordance with law; and

in policy and decisionmaking processes affecting their rights


and benefits as may be provtded by
Participate
law.

Parties to Labor Relations Cases

1. Employee's organization;
2. Managemenf;
3. The public - always to be considered

in

dispute between labor and capital, and it

has been held that the rights of

4.

the

general public are paramount; and

The State.

Note: Absent an employer-employee relation,

Note: Employer and employees are ACTIVE


parties while the public and the state are

there is no labor relation to speak of. lf there is

PASSIVE parties. (Foquiz, 2006, p.3)

no Er-Ee relationship between the

parties,

there is no basis for organizing for purposes of


collective bargaining.

"Labor Relations" may be distinguished from


"labor standards" in that the latter is that part
of labor law which prescribes the minimum
terms and conditions of employment which the
employer is required to grant to its employees.
(The Labor Code of the Philippines Annotated
2005, Chan, Vol. ll)

Principle of Non-Oppression - mandates


capital and labor not to act oppressively
against each other or impair the interest and
convenience of the public. The protection to
labor clause in the Constitution is not designed

to oppress or
211

CHAPTER I. GENERAL PROVISIONS

ART.211: DECLARATION OF POLICY


Collective bargaining process is possible only
when there is a labor organization, i.e.
1. Labor union', or
Employee assocrafion.

2.

Labor relations policy under the Labor


Code is embodied in Secfion 3, Article Xlll
of the 1987 Constitution which guarantees
to all workers their right, among others, to:
Self-organization;

a.

EXECUTIVE

COMMIfiEE:

overall chairperson, MINISTER MOISES DU chairperson for academics, DiOANIVIE JOMARE JUNASA
chairperson for hotel operations, MARIE MICAELA 5TA" ANA vice-chairperson for operations, MIKHAIL MAVERICK TUMACDER vicechairperson for secretariat, JACKIE LOU LAMU6 vice-chairperson for finance, DIANA JEAN TUMON vice.chairperson for edp, JASSEN
RALPH LEE vice-chairperson for logistics
EZEKIEL JOSHUA VILLENA

sUBJECT COilMlfiEE3
HAROLD CHRISIIAN TALLEDO subject chair, AYLA HERAZADE SALENDAB assistant subject chair, PINKY VELOSO edp, NEO VALERIO labor
standards, MARK LESTER TAMONDONG labor relations, DONNA FRANCES YLADE social legislation
MEMBERS3

jhony Martin Alba, Karlo Dialogo,

Vanessa Guinto, Kaye Coleen Lambino, Karlon Pambid, Jose Carlos Torres, Ramayana Saidamen, Jose
Angelo David, Kamille Deanne Lagasca, Raynan Larosa

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2011 CENTRALIZED BAR OPERATIONS


- the submission of a dispute to an
impartial person for determination on the basis
of evidence and arguments of the parties. The
arbiteds decision or award is enforceable upon
the disputants. This maybe voluntary or
compulsory.

Arbitration

DOLE; the term includes

local/chapter

directly chartered by a legitimate federation or


national union which has been duly reported to
the Department in accordance with Section 2,
Rule Vl, Book V, IRR of LC (See notes under
Arts. 234 and 242, LCJ.

discussions.

Company Union - any labor organization


whose formation, function or administration
has been assisted by any act defined as ULP

CHAPTER II. DEFINITIONS

under the Labor Code.

For Art. 211 (9"), see Arf. 255 for more

ART.212; DEFINITIONS
Employer
1. One who employs the services of others;
one for whom employees work and who

pays their wages


University

2.

v.

or salaries (Feati

Bautista, GR No. L-21278

December 27, 1966)

Any person acting in the interest of an


employer, directly or indirectly. The term
does not include a labor oiganization or
any of its officers and agents, EXCEPT
when acting as an employer. The mere
fact that respondent is a labor union does
not mean it cannot be considered an
employer for persons who work for it.
Much less should it be exempted from
labor laws. (Bautista v. lnciong, GR No. L52824, March 16, 1988)

Employee - includes: (CED)

1.
2.

3.

Any person in the employ of an employer;


Any individual whose work has geased as

Bargaining Representative

means a
or not

legitimate labor organization whether


employed by the employer.

Labor Dispute - includes any controversy or


matter concerning:
1. Terms or conditions of employment; OR
Association or representation of persons in
negotiating, fixing, maintaining, changing

2.

or arranging the terms and conditions of


employment.

REGARDLESS of whether the disputants


stand in the proximate relation of employer
and employee.

Test: Depends on whether

it

involves or
concerns terms, conditions of employment, or
representation (SMC Employees UnionPTGWA v. Bersamira, GR No. 87700, June
1s, 1990).

result of or in connection with any


current labor dispute or because of any
unfair labor practice if he has not obtained
any other substantially equivalent and

Even the question of employer-employee (ErEe) relationship can be considered a "labor


dispute".

regular employmenf
One who has been Qismissed from work
but the legality of the dismissal is being

Types of Labor DisPutes

contested in a

forum

of

appropriate

jurisdiction (D.O. No. 4G03, March

1.

Labor Standards Disputes {ComBeWo)

a.

Compensation (e.9. underpayment of

15,

200s).

The term shall not be limited to

the
employees of a particular employer unless
the code explicitly states.

Types of Employees under the Labor Code

1. Managerial
2. Supervisory
3. Rank-and-file

Labor Organization - any union

or

association of employees which exists in


whole or in part for the purpose of collective

bargaining with employers concerning terms


and conditions of employment.

of the
agent of

Legitimate Labor Organization - any labor


organization which is duly registered with

65

LABOR tAW
LABOR RELATIONS
bargaining unit which is the majority

c.
d.

RELATIONS COMMISSION

llargaining disputes (e.9. refusal to


bargain (ULP); bargaining deadlock;

CHAPTER

economic strike or lockout),

coMPoslTroN

Qontract administration or personnel


policy disputes (e.9. noncompliance
with CBA provisions (ULP if gross

ART.213: NATIONAL LABOR RELATIONS


COMMISSION (as Amendd by R.A. 9347,

non-compliance with economic


provisions); disregard of grievance
machinery; violation of no strike/no

e.

TITLE TWO. NATIONAL LABOR

union);

CREATION

I.

AND

July 27,2006)

lockout agreement); and

NLRC - an administrative body with quasijudicial fundions and the principal government

Employment tenure disputes (e.g.

agency

non-regularization of emPloYees;
illegal termination; non-issuance of

that hears and decides labormanagement disputes; attached to the DOLE


for program and policy coordination only.

employment contract).

Composition
Parties to a Dispute

1.

Primary Parties
Employer
Employees
Union
Secondary Parties
Voluntary arbitrator
Agencies of DOLE (BLR, VAC)
NLRC
Secretary ofLabor
Office of the President

a,
b.
c.
2.
a.
b.
c.
d.
e.

Managerial Employee - one who is vested


with powers or prerogatives to lay down and

o
o

1 Chairman; and
23 Members.
EIGHT (8) members each, shall be chosen

ONLY from among the nominees of the


workers and employers organizations,
respectively. The Chairman and the
SEVEN (7) remaining members shall
come from the public sector, with the latter

to be chosen PREFERABLY from among


the INCUMBENT LABOR ARBITERS,
Upon assumption into office, the members
nominated by the workers and employers
organization shall divest themselves of

transfer, suspend, lay off, recall, discharge,

any affiliation with, or interest in the


federation or association to which they

assign or discipline employees.

belong.

execute management policies andlor to hire,

Supervisory Employees - those who, in the

interest

of the

employer,

effectively
recommend such managerial actions if the
not merely
exercise of such authority
routinary or clerical in nature but requires
independent judgment.

is

Note: The composition of the NLRC

is

trisectoral. Tripartism is representation of the

three

sectors

publio

or

govemment,

- in policy-making
government. Tripartism is

employers and the workers

bodies

of the

observed

in numerous government

agencies

All employees not falling within any of the


above definitions are RANK-AND-FILE
EMPLOYEES.

Voluntary Arbitrator (ANCA)


1. Any person Accredited by the Board as

2.
3.
4.

such; or

Any person lamed or designated in the


CBA by the parties to act as their
Voluntary Arbitratof or
One Ghosen with or without the assistance
of the National Conciliation and Mediation
Board pursuant to a selection procedure
agreed upon in the CBA, or
Any official that may be Authorized by the

Secretary of Labor to act as Voluntary


Arbitrator upon the written request and
agreement of the parties to a labor
dispute.

of

admi
On tem

basis, to

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2011 CENTRALIZED BAR OPERATIONS
other division whose docket allows the

3.

not expose litigants to

Division (Eight Divisions Each W,th 3

within their respective territorial

jurisdiction.

Chairman,

Commissioners, and Labot Arbiters

nq

They shall hold otfice durin! good behavior


until they reach the AGE OF 65 unless
removed for causes as provided by law or

become incapacitated

to

discharge the

function of his office.

Adjudication of Cases (Triple C)

'1.

Term of Office of the


(Art.

Members)

1. Adjudicatory;
2. All other powers, functions and duties; and
3" Exclusive appellate jurisdiction over cases

in

at least 5 years.

unnecessary

additional expense.

Must have experience or exposure

handling labor management relations for

additional workload and such transfer will

The NLRC adjudicates cases by division.

A concurrence of 2 votes is needed for a


valid judgment.

PROVIDED HOWEVER, that the President of


the Republic of the Philippines may extend the
services of the commissioners and labor
arbiters up to the maximum age of 70 years
upon the recommendation of the commission
en banc.

(Whenever the required membership in a

division

is not

complete and

the

concurrence of the commissioners to


arrive at a judgment or resolution cannot
be obtained, the Chairman shall designate

such number of additional commissioners

from the other divisions as may

be

necessary.)

2.

lt shall be mandatory for the division to

Jurisdiction
Exclusivehnd Original
1 Ceftifled cases - cases certifled to it for
compulsory arbitration by the Secretary of
Labor under Aft. 263 or the President
under Art. 264:

2. lnjunction cases under Afts. 218 and 264;


and
3. Contempt cases.

meet for purposes of gonsultation.

The conclusion of a division on any case

,
3.

submitted

to it for

Exclusive Appeltate
Cases decided by Labor Arbiters under

1.

decision should be

reached in consultation before the case is


assigned to a member for the writing of the
opinion.
A Qertification to this effect signed by the
presiding commissioner of the division
shall be issued (copy attached to the
record of the case and served upon the
parties).

Qualifications of the Ghairman and the


Commissioners (Art. 21 5l
1. Must be a member of the Philippine Ba[

2. Must have been engaged in the practice of


law in the Philippines for at least 15 years;
3. Must have experience or exposure in

2.

Art. 214b1 of the Labor Code and Sec. 10


R.A. 8042 (MigrantWorkers Acf); and
Cases decided by the Regional Offices of
DOLE in the exercise of its adjudicatory
function under Arf. 129 of the Labor Code

over monetary claims of

workers
amounting to not more than P 5,000.

Judicial Review
Findings of facts

tribunal are
and

accorded the
*1#il?.'{A

initially

handling labor management relations for

4.

at least 5 years; and

Preferably a resident of the region where


he is to hold office.

Qualifications

of Executive

Arbiters/Labor Arbiters {Art.

1.
2.

21

Labor

Must be members of the Philippine Ba[


Must have been engaged in the practice of
law in the Philippines for at least 10 years;
and

courts
desired
equ

factual
number
Funeral

Barangay

Labor cases

Barangay

Conciliation since

nary

of procedure

67

LABORLAW
LABOR RELATIONS
labor disputes which are primarily governed by

and maternity beneflts, all other claims


arising from. Er-Ee relations, including

Escayo, GR Nos.

those of persons in domestic or household

ART. 214: HEADQUARTERS, BRANCHES

P5,000 regardless of whether


a claim for
accompanied with

are merely suppletory in character vis-d-vis


labor laws (Montoya

v.

service, involving an amount exceeding

82211, March 21, 1989).

AND PROVINCIAL EXTENSION UNITS

7.

The Commission and its first, second, third,


fourth, flfth and sixth divisions shall have their

main offices in METROPOLITAN MANILA,


and the seventh and eighth divisions in the
cities of CEBU and CAGAYAN DE ORO,
respectively.

ART. 216: SALARIES, BENEFITS


OTHER EMOLUMENTS

The Chairman ahd members

of

the

be entitled to the same allowances,


retirement and other benefits and
privileges as those of the judges of the
regional trial courts.

CHAPTER II. POWERS AND DUTIES

OF

I-ABOR

ARBITERS AND THE COMMISSION

Exclusive and Original Jurisdiction of


Labor Arbiters

EXCEPT as otherwise provided under this


Code, the Labor Arbiters shall have original
and exclusive jurisdiction to hear and decide,

WITHIN 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


ag ri cu ltu

ral or n on-ag

ri cu ltu ral :

cDo)

9.

AND

Commission shall have the same ran(


receive an annual salary equivalent to,
and be entitled to the same allowances,
retirement and benefits as, those of the
Presiding Justice and Associate Justices
of the Court of Appeals, respectively.
Labor Arbiters shall have the same rank,
receive an annual salary equivalent to and

ART.217: JURISDICTION

8.

reinstatement;

Monetary claims

of

gverseas contract

workers arising from Er-Ee relations under


Migrant Workers Act of 1995;

Wage distortion disputes in unorganized


establishments not voluntarily settled by
the parties pursuant lo RA 6727;
Enforcement of gompromise agreements
when there is non-compliance by any of
the parties pursuant lo Art. 227 of the

Labor Code, as amended, and


10. Qther cases as may be provided by law.

Note: Although the provision speaks

of

EXCLUSIVE AND ORIGINAL JURISDICTION


of Labor Arbiters, the cases enumerated may

instead be submitted to a voluntary arbitrator


by agreement of the parties under Art. 262.

The law prefers voluntary over compulsory


arbitration.

Ihe cases that a Labor Arbiter can hear and


decide are employment related. Where no ErEe relationship exists between the parties and
no issue is involved which may be resolved by
reference to the Labor Code, other labor
statutes, or any collective bargaining
agreement, it is the Regional Trial Court that
has j urisdiction (Lapand ay Agricult ural Dev't.
Corp. v. CA, GR No. 112139, January 31,
2000J.

The Labor Arbiter

has

controversies involving
employees only if !h_pl'p_
causal

jurisdiction over
employers and

is a

"reasonable
claim

(UTR-DV-EeO -

1. ULP cases;
2. Termination disputes;
3. lf accompanied with a claim

CA,

for

The

Reinstatement, those that workers file


involving wages, rates of pay, hours of
work and other terms and conditions of

4.
5.

employment;

Jose

Claims for actual, moral, exemplary and


other forms of Qamages arising from Er-

1e98).

Ee relations;

Cases arising from any Violation of Art.


264, including questions involving the
legality of strikes and lockouts;

6. Except claims for

Employment
Compensation, Social Security, Philhealth

68

Cases
machi
The
disposed

the same to
voluntary

be

referring
and

Sun Gebs @ollege of j[.!tu


201 1 CENTRALIZED BAR OPERATIONS

1. Disputes on the

2.

interpretation

and Design lnc. vs CA, 260 SCRA 623,

or

implementation of CBA, and

Disputes on the interpretation or


enforcement of company personnel

[1ee6u.
12.

1. Foreign

Philippines v. NLRC, GR No. 108813,


December 15, 1994); except when the
function of the foreign entity partakes of
the nature of a proprietary activity, it
impliedly divested itself of its sovereign

2.
3.

2AO5 NLRC Rules

5.

1. All

of Procdure on Venue of

cases which Labor Arbiters have


to decide may be filed in the

Regional Arbitration Branch (RAB) having


the workplace of the

jurisdic{ion over

compla ina nUpetiti oner.

February 23, 1995)',

Note: WORKPLACE is understood to be


the place or locality where the employee is

lnternational agencies (Lasco v.


UNRFNRE, GR No. 109095-1091A7,

regularly assigned when the cause of


action arose. lt shall include the place
where the employee is supposed to report

lntra-corporate disputes which fall under

P.D. 902-A and now fall under


(Nacpil
2044;

v. lBC, GR

Executing .

money claims

government (DAR

back after a temporary detail, asgignment,


or travel.

144767, March 21,

v.

ln case of field employees, as well as


ambulant or itinerant workers, their

against

NLRC, GR

No.

104269, November 11, 1993);

workplace is:
Where they are regularly assigned;
b. Where they are supposed to regularly
receive their salaries and wages;

a.

Cases involving GOCCs with original


charters which are governed by civil

c. Where they receive their work


instructions from, and
d. Report the results of their assignment

Sec,2, No. 1, 1987 Consf-);


Local water district (Tanjay Water Distrid
v. Gabaton, GR Nos. 63742 and 84300,

to their employers.

NLRC

jurisdiction is invoked (Zamboanga City


Water District v. Buat, GR No. 104389,
May 27, 1994);
The aggregate money claim does not

Where 2 or more RABs have jurisdiction


over the workplace, the first to acquire
jurisdi ction shall exclude others,

lmproper venue when not objected to


before filing of position papers shall be

exceed 5,000 pesos and without claim for


reinstatemenl (Rajah Humabon Hotel, lnc.
v. Trajano, GR No. 1A0455 September 17,

8.

immunity from suits.

April 17, 1989) except where

7.

in

authority

service law, rules-or regulations (Aft. lX-9,

6.

membership

Filing Gases

the
jurisdiction of the regular courts pursuant
to the new Securities Regulation Code

4.

of

Cooperative organized under RA No. 6938


othenrvise known as fhe Cooperative Code
of the Philippines.

policies.

No Jurisdiction over the Following:


governments (JUSMAG-

Termination

deemed waived.

Venue may be

lees),

Claim of employee for cash prize under

agreement

the lnnovation Program of the company,

of

changed

th"9,,,,p-ffipg-- or

by

written

when the

although arising from employer-employee


relationship, is one requiring application of

general civil law on contracts which is


within the jurisdiction of the regular courts
(San Miguel Corp. v. NLRC, GR No. l-

9.

80774, May 31, 1988);


Cause of action is based on quasi-delict or
tort which has no reasonable connection

with any of the claims enumerated in Art


217 oI the Code (Ocheda v. CA, GR Na.
85517, October 16, 1992),
10. Complaint arising from violation of a
training agreement (Singapore Airlines v.
Pano, GR No. L-47739, June 22, 1983),
11. When the Labor Arbiter is an inconvenient
Forum under the Doctrine of Forum Non

Canveniens (Communication Materials

The

permts
the
different
124193,

Servide

of

ln the

valid

waiver

ora
and

69

LABOR LAW
LABOR RELATIONS
judgment rendered by the labor arbiter are null

Labor Arbiters cannot issue

and void.

lnjunction.

a TRO or an
of Restraining

Compulsory Arbitration

Procedure for the lssuance

The process of settlement of labor disputes by


a government agency which has the authority

Order/ I njunction: (DVH-RFB)


1. There must first be a labor g[ispute.
2. Filing of a yerified petition.
3. Hearing after due and personal notice has

to investigate and make award binding on all


the parties. Labor arbiter has the authority to

been served,

conduct compulsory arbitration (PAL v. NIRC,


GR No. 55159, December 22, 1989).

Note: The NLRC may conduct compulsory


arbitration ONLY in national interest cases

a.

All known persons against whom the

b.

Also to the chief executive or other


public officials of the province or city
within which the unlawful acts have

referred to it by the DOLE Secretary.

charged with the duty

4. fieception at the hearing of

the
testimonies of witnesses with opportunity
for cross-examination, in support of the
allegations of the complaint made under

lule-making porver (promulgation of rules


and regulations: a. governing disposition

of cases before any of its


its internal functions; c. as may be

divisions/regional offices; b. pertaining to

2.
3.

power

4
5

oath as well as testimony in opposition

5.

thereto.

Finding of lact of the Commission to the


effect that :
a. Prohibited or unlawful acts have been
threatened and will be committed, or

have been committed and will be


continued unless restrained, but no
injunction or temporary restraining
order shall be issued on account of
any threat, prohibited or unlanrful act,

and

except against the

'

orders.

labor dispute.

Note: A restraining order is not an injunction at


all but a writ to compel parties to maintain the
matters in controversy in status quo until the

question of whether

or not a temporary or

preliminary injunction ought to be issued may


be determined. (BF Homes v. Reyes, March
16, 1971)

Who May lssue


1. President (Art. 263[g]);
2. Secretary of Labor (Aft. 263[9]); and

3.

NLRC (Arf. 218);

Note: There is no law which empowers Labor


to issue a TRO or lnjunction. Hence,

Arbiters

70

b.

Persons,

association or organization making the


threat or committing the prohibited or
unlaMul act or actually authorizing or
sGme after actual
ratifying
knowledge thereof;
Substantiat and irreparable iniury to
the complainants property will follow;

the

Injunction or TRO
Orders which may require, forbid, or stop the
doing of an act. The power of the NLRC to
enjoin or restrain the commission of any or all
prohibited or unlawful acts under Afticle 218 of
the Labor Code can only be exercised in a

committed

to protect the

com plainant's property.

Powers of the NLRC (RCl-COl)

necessary to carry out the purposes of this


Code )
Power to issue Qompulsory processes
(administer oaths, summon parties, issue
subpoenas);
Power to lnvestigate matters and hear
disputes withi n its ju risd ctio n ( adj ud icatory
appellate
original
jurisdiction);
Contempt power;
Qcular inspection (Art. 219);and
Power to issue lnjunctions and restraining

relief is sought; and

been threatened or

ART. 218: POWERS OF THE COMMISSION

1.

in such manner as the

Commission shall direct, to:

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2011 CENTRALIZED BAR OPERATIONS


matter in controversy and which is
appropriate to the particular
circumstances of the case. lf the
remedy is specifically provided by law,
it is presumed to be adequate \PAL v.

NLRC, GR No. 120567, March

e.

20,

The TRO takes effec't upon its issuance, if a


bond is posted and not upon receipt of the

parties. (A.M.

No

Apil

RTJ-9&1405,

12,

1998)

2000)

That public officers charged with the

The procedural and substantial requirements


ot Art. 218[e] must be strictly complied with
before an injunction may issue in a labor

duty to protect complainant's property

are unable or unwilling to

6.

It may be lifted or it may be upgraded to


permanent injunction.

furnish

adequate protection.
Posting of a Qond.

dispute.
ART. 219: OCULAR INSPECTION

lnjunction from NLRC is NOT the Proper


Remedy against Employee Dismissal
The power of the NLRC to issue an injunctive
writ originates from "any labor dispufe" upon
application by a party thereof, which
application if not granted may cause grave or
irreparable damage to any party or render
ineffectual any decision in favor of such party.

It is an essential requirement that there must


first be a labor dispute between the contending
parties before the labor arbiter. ln the present
case, there is no labor dispute between the
petitioner and private respondent as there has
yet been no complaint for illegal dismissal filed

with the labor arbiter. (PAL vs. NLRC G.R.

The Chairman, any Commissioner,

Labor

Arbiter or their duly authorized representatives


may, at anytime during working hours:

1.

Conduct an ocular inspection on any


establishment, building, ship, place or
premises, including any work, material,
implement, machinery, appliance or any

2.

Ask any employee, laborer, or any person


as the case may be for any information or
date concerning any matter or question

object therein; and

relative to the object of the investigation.

ART. 221: TECHNICAL RULES


BINDING

NoT

AND PRIOR RESORT TO

AMICABLE SETTLEMENT

No. 120567, March 20, 1998).

Requisites Before TRO May Be lssued Ex


Parte (STU)

1.

2.

The complainant shall allege that, unless a


TRO is issued without notice, a substantial
and irreparable injury to complainant's
property will be unavoidable;
There is lestimony under oath, sufficient, if

sustained,

issuing

3.

to justify the Commission in


temporary injunction

upon
hearing after notice (Affidavit of Merit); and
The complainant shall first
an

file
undertaking with adequate security/bond
in an amount to be fixed by the
Commission suff icient to recompense

Technical Rules NOT Binding


Administrative and quasi-judicial bodies like
the NLRC are not bound by technical rules of
procedure in the adjudication of cases {Ford
Phils. Salaried Employees Assoc. v. NLRC,
GR No. 75347, December 11, 198n.

Rules of evidence are not strictly observed in


the proceedings before the NLRC (Bantolino'
et al. v. Coca-Cola Bottlers Phils., Inc., GR No.
153660, June 10,

those enjoined for any loss, expenses or

damage caused by the improvident or


erroneous issuance of such order or

(Llora

injunction, including all reasonable costs,


together with a reasonable attorney's fee,

and expense of defense against

the

granting of any injunctive relief sought in


the same proceeding and subsequently
denied by the Commission.

Note: The TRO shall

be effective for

NO

LONGER THAN 20 DAYS upon the posting of


a bond, and shall become void after the
expiration of the 20 day period.

NLRC
Motion
the
subject

1.

judicata,

Kcept on

over the
res
shopping;

venue,
on and

7t

LABOR LAW
LABORRELATIONS

2. Motion for Bill of Particulars;


3. Motion for New Trial;
4. Petition for Relief from Judgment when
filed with the labor arbiter;
5. Petition for Certiorari, Prohibition and
Mandamus;
6. Motion to declare respondent in default;
and
7. Motion for reconsideration or appeal from

Attorney's Fees
1. Art. 111 (Simple Monetary Claim)
The maximum amount to be given a

for his legal assistance.


award adjudged the emPloYees
lawyer

rendered is 10% of the total monetary

any interlocutory order of the labor arbiter.

b.

Amicable Settlement
The Labor Arbiter shall exert all efforts to
arrive at an amicable settlement of a labor
dispute within its jurisdiction on or before its

Rrst hearing

or

Approval of a Compromise Agreement by a


Labor Arbiter
The compromise agreement shall be approved
by the Labor Arbiter, if:
1. After explaining to the parties, particularly
the complainants, the terms and
conditions and consequences thereof;
He is satisfied that they understand the
agreement;
3. That the same was entered into freely and
voluntarily by them;
And that it is not contrary to law, morals,
and public poliiy (lbid).

to

2.
4.

of

d.

2.

The basis of the 10olo attorney's fees is


the amount of the wages recovered.
Should there be any other monetary
awards given in the proceedings, the
same may not be assessed or
subjected to the 10% attorney's fees.

Att.222
Attorney's fees for CBA negotiations
and conclusion shall be in the amount
agreed upon by the parties to be taken

from the union funds and not from


individual union members.

This Article prohibits the payment of


attorney's fees only where the same is
effected through forced contributions
from the workers from their own funds
as distinguished from union funds.
Neither the larryer nor the union itself

may require the individual workers to


assume the obligation to PaY the
attorney's fees from their own pockets.
Any agreement to the contrary shall be
null and void.

ART.222: APPEARANCES AND FEES

Appearance
Commission

is declared unlavvful.

the

mandatory
during
conferences set for the purpose (The rules for
Man datory Con ci li ati on/Medi ati on Conference
are provided for under Rule V of the 2005
NLRC Rules).

the award for moral and


exemplary damages. To demand more
than this is unlaMul.
The attorney's fees may be awarded
ONLY when the withholding of wages
exctuding

Non{awyers before the


Article 111 vs. Article

General Rule: ONLY lawyers can appear


before the NLRC or a Labor Arbiter.

Prohibits the award ol Prohibits the payment of

attorney's

Exceptions: Non-Lawyers can appear ONLY

exceeds

fees

which

loo/o

in the following instances:

1. He represents himself as party to the


case;
2. He represents a legitimate labor
organization which is a party to the case
provided that he shall be made to present

a verified
3.

from

certification
said
organization that he is properly authorized;
He represents a member or members of a
legitimate labor organization existing

4.

in

employels establishment;
He is duly accredited member of any legal
aid office duly recognized by the DOJ or
IBP;

5. He is the

owner or president of a
or establishment which is a
party to the case. (Sec. 8, 2005 NLRC

corporation
Rules)

72

{:;{"3t*.I*fu

attomey's

fees

only

Sffi

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2011 CENTRALIZED BAR OPERATIONS


CHAPTER

arguments propounded and reliefs sought

III. APPEAL TO THE NLRC

within the required period of appeal and


with a statement of the date appellant
received the appealed decision, order or

ART.223: APPEAL
Grounds for Appeal (FLEP)

1. lf the decision, order or award was


secured through Fraud or coercion,
including graft and corruption;
2. lf made purely on questions of Law;
3. lf serious lrrors in the findings of facts are
raised which would cause grave or
irreparable damage or injury to the
4.

appellant; and
lf there is lrima facie evidence of abuse of
discretion on the part of the Labor Arbiter.

Periods within which to Appeal


1. Decr'sions of the Regional Director - within
5 calendar days from receipt of the order

(Att.129, LC - Recovery of wages and


simple money claims of an amount not

2.

resolution;

2. ln lhree legibly typewritten or printed


copies;
3. Proof of payment of the required appeal
fee;
4. ln case of monetary award, an appeal by

the employer may be perfected only by the


posting of a lond (cash deposit or surety
bond) equivalent in amount to the

monetary award exclusive

of

damages

and attorney's fees;

5, Proof of service upon the other parties;


and
6. Qertificate' of non-forum shopping and
verification.

Declsions of the Labor Arbiter - within 10

Note: Where the employer failed to post a


bond to perfect its appeal, the remedy of the
employee is a motion fo dismiss the appeal'

calendar d4ys from

NOT a petition for mandamus.

exceeding P 5,000)

the receipt of

the

decision.

The bond is sine qua non to the perfection of

Note: Ihe Code sfafes calendar, not working


days. Hence, in counting the 10-day period,
Saturday, Sunday, and Legal Holidays are
INCLUDED. (Vir-Jen Shipping and Marine
Servlces v. NLRC GR L-58011-12, July 20,
i982).
lf the 10s or 5s day, as the case may be, falls

on a Saturday, Sunday or holiday, the last day

to perfect the appeal shall be the first working


day following such Saturday, Sunday or
holiday.

appeal from the labor arbiter's monetary

decision (Catubay, et al. v, NLRC, GR No.


119289, Aprit 12, 2000)', property bond
acceptable (UERM-Memarial Medical Center
v. NLRC, GRNo. 110419, March 3, 1997).
No motion to'reduce bond shall be entertained
except on meritorious grounds and only upon
the posting of a bond in a reasonable amount
in relation to the monetary award. The mere

motion to reduce bond without


complying with these requisites will not stop

filing of

the running of the period to appeal'

No Motion for Reconsideration is available in


questioning the Labor Arbiter's decision (2005
NLRC Ru/es).

Period to Appeal NOT Extendible

The perfection

of an appeal within the


is not only

statutory/reglementary period

MANDATORY but also JURISDICTIONAL and

farlure to. do so renders the questioned


decision final and executory as to deprive the
appellate court of jurisdiction to alter the final
judgment of the Regional Directors and Labor
Arbiters (ACDA v. NLRC, GR No. 51607;
Volkschelv. NLRC, GR No. L-396ffi, June 28,
1980; Aboitiz Shipping Employees Association

v.

Trajano, GR No. 112955. September

1,

1997).

Requisites for the Perfection of an Appeal


to the NLRC (VTP-BPC)

1.

insofar
concerned a

IS

bond

Filing of a yerified memorandum of appeal

containing the grounds, issues raised and

73

LABOR LAW
LABOR RELATIONS
There is no need for a motion for the issuance
of writ of execution on the reinstatement order
as is self-executory (Pioneer Texturizing
Corp. v. NLRC, GR no. 11ffi51, October 16,

it

Dev't. Bank v. Associafion of Luzon Devt.


Bank, GR No. 120319, October 6, 1995).

1.

1997).

Reinstatement Pending Appeal under Ar1.


223 vs. Order of Reinstatement under Arf

Court.

Note: A petition for certiorari shall NOT


STAY (or suspend) the execution of the
assailed decision of the NLRC UNLESS a
TRO is issued by CA or SC (Sec. 10, Rule
Xl, NLRC Rules, 2ffi5).

279.

order of I On the other hand, the


by the I order of reinstatement
Labor Arbiter b I under Art. 279

reinstatement

immediately executory | presupposes the a,vard


even pending appeal. lt J thereof is pursuant to a
is similar to a return-to- final and executory

2.

work order l.e. to restore I judgment, and not while


the status quo in the I the case for illegal
workplace for the I dismissal 's pending on

meantime.

3.

an Order of Reinstatement which is


lmmediate and Self-Executory
1. He can ADMIT the dismissed employee
back to work under the same terms and
conditions prevailing prior to his dismissal

or 'separation

2.

or to a

substantially
equivalent position if the former position is
already fllled up; OR
He can REINSTATE the employee merely
in the PAYROLL with payment of the
accrued salaries.

Jurisdiction belongs to SC and CA, but in


line with lhe doctrine on hierarchy of eourts,
lhe petition should be initially presented to

fhe CA (Sf. Martin's Funeral Home v.


NLRC, GR No. 130866, SePtember 16,

appeal.

Options of the Employer in Gomplying with

The way to review NLRC decisions is by


specia/ civil action of ceftiorari, prohibition
or mandamus under Rule 65 of the Rules of

4.

1988).

No motion for reconsideration is allawed for

any order, decision or award of a labor


arbiter. However, a Motion for
Reconsideration of a Labor Arbiter's
decision, award or order which has all the
elements of an appeal may be treated as
appeal
Only one Motion for Reconsideration of the
decision, award or order of the commission
in cases appealed before it is allowed.

Procedure on Cases Originally Filed with


the Labor Arbiter

Note: The exercise of one oi tn" foregoing


options may be compelled under pain of
contempt and the employer may be made to
pay the salary of the empoyee instead.

Appeal to the NLRC Division


(lf appeal denied, MR; aPPeal
from NLRC to the Sec. of Labor
abolished under P.D. 1391)

Payroll Reinstatement
One where an employee is paid his monthly

salary without making him perform actubl


work. lt applies in termination cases where the
labor court declares the dismissal illegal and
orders reinstatement of the employee, but the
employer does not want to actually or
physically reinstate him and instead, at the
employer's option, merely reinstates the

Court of Appeals

(Certiorari under Rule 65)

employee in the payroll pending appeal.

Supreme Court
(Petition for Review upder Rule 45)

Judicial Review Rules


No law allovs an appeal from a decision of the
Secretary of Labor, or the NLRC, or of a
voluntary arbitrator.

Note: Decisions of Voluntary Arbitrators are


appealable to the CA under RULE $ AF THE
RULES OF COURT in relation to Sec. 9 of BP
Blg. 129. Voluntary Arbitrators are to be
considered as quasi-judicial agencies whose
decisions are appealable to the CA {Luzon

74

1.

Ssn

@ebs @oltege of

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2011 CENTRALIZED BAR OPERATIONS

5. Med-Arbite[ and
6. Voluntary Arbitrator

judgment creditor

When Writ of Execution May Be lssued


The foregoing persons or entities may, upon

their own initiative or on motion of

3.

t6,

of an affidavit of

title

Rute 39,'Rules of Court). This is


also known as Terceria;
lndependent civil action to recover the title
and possession of the property wrongfully

(Sec.

or Panel of Arbitrator.

any
interested party, issue a writ of execution on a

levied on execution (Sec. 16, Rule 39,


Rules of Court) (See Yapangco Cotton

becomes final and executory.

January 16, 2002)

judgment within

years from the date it

After the lapse of the said five year period, the


judgment shall become dormant and may only
be enforced by an independent action within
the next five (5) years. (Phil. National railways
vs. NLRC, G.R. No. 81231, September 19,
1e]e)

It is

or order
it is removed
or jurisdiction of the court

settled that once

decision

becomes final and executory,

from the power

which rendered it to further alter or amend it.


(Schering Employees Labor union vs NLRC,
G.R. No. 118586, Sept 25,1998) except:

1. When there are clerical errors or mistakes.


2. When the amendment or correction is
3.

4.

meant to harmonize it with justice and the


facts.
When the same becomes necessary to
accomplish the aims of justice.
When there are supervening events
justifying the amendment of correction.
(Yu vs NLRC, G.R. Nos. 11181011, June

MtTls

vs. CA, et.d., G.R. No.

126322,

RTC lnjunction against NLRC

Generally, not available.


HOWEVER, the general rule that no court has

the power to interfere by injunction with


judgments of another court with
concurrenVcoordinate jurisdiction applies
ONLY when no third-party complaint is
involved (tbid ). Therefore, if the property
under levy does not belong to the judgment
debtor in the NLRC case, it could not be
validly levied upon by the sheriff' for the

satisfaction of the judgment therein. lf the third


party claimant does not involve nor grows out

of a labor dispute, a

separate action for


injunctive relief against such levy may be
maintained in court. (Co Tuan et. al. v. NLRC

and CL|JP, GR No. 117232, April22, 1998).

TITLE THREE. BUREAU OF LABOR


RELATIONS

ART.226: BUREAU OF LABOR RELATIONS

16, 1995)

ABSORPTION BY NCMB
Manner of Execution May Be Appealed
Finality of judgment becomes a fact upon the
lapse of the reglementary period of appeal and
if no appeal is perfected. ln such a situation,
the prevailing party is entitled as a matter of
right to a writ of execution.

Pursuant to E.O. 126,the National Conciliation

and Mediation Board (NCMB) has absorbed


the conciliation, mediation and voluntary
arbitration functions of the BLR.

The BLR functions, as

it

now stands, are

There is a big difference if, what is sought to


be reviewed is not the decision itself but the
manner of its execution. While it is true that
the decision has become final and executory
and so can no longer be challenged, there is
no question either that it must be enforced in
accordance with its terms and conditions. The

NLRC has authority

to look into the

correctness of the execution of the decision


and to consider supervening events that may
atfect such execution (Abbot v. NLRC, 6R No.
L-65173, October 27, 1986).

Remedies of a third party whose property

has been wrongfully levied to enforce


decision (Cumulative)
1. Motion for Exclusion/ Release

2.

of the
property wrongifully levied on execution;
Service by the third party claimant on the
officer making the levy and upon the

To act on its
of either or both

75

LABOR LAW
LABOR RELATIONS
2.
3.

INTER-union conflicts; and

OTHER RELATED Labor

Relations

Disputes.

legitimate labor organizations based on any


violations of their rights as labor organizations.

Coverage

Other Related Labor Relations Disputes


(Sec. 2, RuleXl D.O.4e$l
Shall indude any conflict between a labor

organ2ation and the employer or any


individual, entity, or group that is NOT a

labor organization or worker's association.


This includes:
a. Cancellation of registration of unions
and worke/s associations; and
b. A petition for interPleader.

Notrg: E O. 251 OF 19BZ removed from the


jurisdiction of the BLR "'all' labor-management
disputes. The effect ol E.O. 251 is to transfer
to the NCMB the mediation, conciliation, and
arbitration functions of the BLR.

The parties may, by agreement, settle their


differences by submitting their case to a
voluntary arbitrator ratherthan taking the case
to the BLR.

E.O. 292 or the 1987 Administrative Code


provides for the cunent functions and authority
of the BLR:

of

lnbr/lntra-Union Disputes

{Sec. 7, RuleXl, D.O. /rc431

1.- Cancellation

of registration of a

organization filed by its members

2-

any other labor organization;

Conduct of election of union and worker's


lif icatton of election
of union and worke/s association officers;
AudiUaccounts examination of union or
workeis assoqiation funds;
De-registration of CBA
Validity/invalidity of union affiliation or
disaffiliation;
acceptancelnonValidity/invalidity
acceptance for union membershiP;
impeachmenV
Validity/invalidity

associatio n off icers/nu

3
4.
5.
6.
7.
8.
9.

labor
by

or

of
of

expulsion

of union and

worker's

association officers;
Validity/invalidity of voluntary recognition,

Opposition

to

application

for union and

CBA registration;

of or disagreements over any


provision in a union or vYorker's

10. Violations

association constitution and byJaws;


chartering
registration of labor organizations

11. Disagreements

over

or
and

CBAs;

Sec.16. Bureau of Labor Relations


shall:

1.

The BLR

Set policies, standards, and procedures on

the

registration

and supervision of

legitimate labor union activities' including

denial, cancellation, and revocation

2.

of

labor union permits;

Set policies, standards, and procedures

relating to

collective

bargaining

agreements, and the examination of


financial records of accounts of labor
organizations to determine compliance

3.

12. Violations of the rights and conditions of


union or workeds association membership;
13. Violations of the rights of legitimate labor
organizations, except interpretation of
CBAs; and
14. Such other disputes or conflicts involving
self-organization, union
the rights
membership, and collegtive bargaining Between and among legitimate labor
organizations; and

to

a.
b.

Between and among members


union or worke/s association.

with relevant laws,


Provide proper orientation to workers on
their schemes and projects for
improvement of the standards of living of
workers and their families.

- refer to any conflict


between and among union members, including
grievances arising from any violation of the
rights and conditions of membership, violation
of or disagreement over any provision of the
union's constitution and by-lavrrs, or disputes
arising from chartering or affiliation
lntra-Union Disputes

- refer to any conflict


between and among legitimate labor
organizations involving representation
lnter-Union Disputes

questions for purposes of collective bargaining


or to any other conflict or dispute between

76

B. lnvol
ln

such

of

San

@ebu @olleqe of

{.slo

2011 CENTRALIZED BAR OPERATIONS

be sought within the union itself

in

accordance with its constitution and bylaws EXCEPT under any of the following

Med-Arbiter/R egional Director

Regional Office or to the BLR,


where the complaint originated
(records are transmitted to the

7.
8.
L

the

memorandum of appeal)

and

oppressive;
lssue is purely a question of law;
Where the administrative agency had
already prejudged the case; and
Where the administrative agency was
practically given the opportunity to act
on the case but it did not.

Effects of Filing or Pendency of lnter /


lntra-Union Dispute and other Labor
Relations Disgutes (Sec. 3, Rule X, Do 4003)

1.

BLR or Sec. withln 24 hours

from receipt of

agency is

patently illegal, arbitrary,

- if
the

Sec. Of Labor - if the case


originated fom the Bureau

circumstances:
Futility of intra-union remedies;
lmproper expulsion procedure,
Undue delay in appeal as to constitute
su bstanti al njustice;
The action is for damages;
Lack of jurisdiction of the investigating

1.
2.
3.
4.
5.
body;
6. Action of the administrative

Bureau of Labor Relations

the case originated from

The rights, relationships and obligations of

the party-litigants against each other and


other parties-in-interest prior to the
institntion of the petition shall continue to
remain during the pendency of the petition

Flowchart of Appeal from Decisions of


Med"Arbiters
Med-Arbiter/Regional
Director

Appeal to BLR or to the Sec.


of Labor if originated from

the Bureau
(Within 1.0 days from
receipt of the decision)

and until the date of finality of the decision

rendered therein. Thereafter, the rights,


relationships and obligations of the party-

litigants against each other and other

2.

parties-in-interest shall be governed by the


decision so ordered.
The filing or pendency of any inter/intraunion disputes is not a prejudicial question
to any petition for certification election and
shall not be a ground for the dismissal of a

petition

for

certification election

Appeal to the Secretary of Labor

or

suspension of proceedings for certification


election.

Modes of Appeal in lntra/lnter-Union

1[i,l+"?-*:

!1lfitP,U

1. Under oath
2. Consist oi a memorandum
of appeal

3. Based on either of

the

following grounds;

a.

Grave abuse

of

discretion

b. Gross violation of

the

rules

4. With supporting

arguments

and evidence
\Afrthin 10 days

from receipt of

decbion

77

LABOR LAW
LABOR RELATIONS

Summary

of

Rules

on

lntraflnter-Union

Disputes
or grounds under Sec. 1: any legitimate

organization

(LLO) member(s)

thereof

Compromise Agreement - contract whereby


the parties, by making reciprocal concssions,
avoid litigation or put an end to one already
commenced.

specially concemed

2. For grounds under Sec. 2:

ART. 227: COMPROMISE AGREEMENTS

any-party-in-

Substantial Requ irements

interest
Regional Office that issued its certificate of
regbtration or certificate of creation of
chartered local - if it involves labor unions with

independent registration, chartered locals,


worke/s association, its officers or members.
Directly with the Bureau - if it involves a

1. Must be freely entered into;


2. Must not be contrary to law morals or
public policY;
3. Must be reasonable; and
4. Must be approved by the authority before

whom the case is pending (see dlscusslon


approvalof Labor Arbiter
on Article 221
of an amicable sdtlement in a case before
him)

Federation/ National Unions/ lndustry Unions,

its officers, or members.


ln writing;
Verified under oath
Contains the following averments:

a.

Formal Requirements

Name, address and other


of the complainant(s)

personal

circumstances

b.

or

petitioner(s);

Name, address and other


circumstances

1. ln wrrting; and
2. Signed in the presence of the regional
director or his dulY authorized
representative. (Sec. 8, Rule ll of the
Rules on Disposition of Labor Sfandards
Cases in the Regional Offices)

personal

of the respondent(s) or

person(s) charged;

c. Nature of the complaint or petition;


d. Facts and circumstances surounding the
complaint or petition;
e. Causes of action or specific violations
committed;
f. A statement that the administrative
remedies provided for in the constifution

and by-laws have been exhausted; or


such remedies are not readily available to
the complainants or petitioners through

no fauJt of his/their own; or compliance

with such adminstrative remedies does


not apply to complainants or petitioners.
Reliefs prayed for,
Certificate of non-forum shopping; and
Other relevant matters.

Administrative Functions of the BLR


1. Regulation of registration of the labor
unions;

2. Keeping of a registry of labor unions;


3. Maintenance of a file of CBAs; and
4. Maintenance of a file of all settlements or
final decisions of the supreme court, court
of appeals, NLRC and other agencies on
labor disputes.
Cases Where the BLR Has No Jurisdiction
Those arising from the implementation or

interpretation of Collective Bargaining


Agreements which shall be subject of
grievance procedure and/or voluntary
arbitration.

78

When May Gompromise Agreements Be


Effected

may be effected at any stage of the


proceedings and even when there is already a
final executory judgment (Art. 2040, NCC).

It

It cannot be entered into when the final


judgment is already in the process of
execution (Jesalva, et al. v. Bautista, GR No.
L-1192*-L-19330, March 24, 1959\.
Gompromise Agreements With v. Without
Assistance of DOLE

Sun Fels @ollege of I.tu


2011 CENTRALIZED BAR OPERATIONS
Options When Compromise Agreement ls
Violated

1. Enforce compromise by writ of execution;


or
2. Regard it as rescinded and insist upon
originaldemand.
Requirements of a Valid Quitclaim (VAC)
1. The quitclaim must be voluntarily arrived
at by the parties;

2. lt

The regional office shall furnish the BLR


with a copy of the CBA within five (5) days
from its submission
The BLR or regional office shall assess
the employer for every CBA, a registration

4.
. fee of not less than P1,000.00 or any
amount deemed appropriate by the
Secretary of Labor.
5. lssuance of Certificate of Registration.

must be with the gssistance of the


of Labor Standards, Bureau of
Labor Relations or any representative of

Note: Registration of the CBA

the DOLE; and

The certification of the CBA by the BLR is not


required to put a stamp of validity to such
contract. Once it is duly entered into and
signed by the parties,
CBA becomes
effective as between the parties regardless of
whether or not the same has been certified by
the BLR (Libefty Flour Mitts Emptoyees v. LFM

Bureau

3.

3.

The gonsideration must be reasonable

(required only when entered wlthout the


assistance of DOLE).

Note: Dire necessity is not an acceptable


ground for annulling the releases, especially in
the absence of proof that the employees were
forced to execute them (Veloso v. DOLE, GR
No. 87297, August 5 1991)
Waiver of Reinsiatement

of mongy claims, a waiver of


reinstatement must bb regarded as a
PERSONAL RIGHT which must be exercised
personally by the workers themselves (Jag
and Haggar Jeans and Spottswear Corp. v.
NIRC, GRNo. 105710, February23, 1995).
Like waivers

ART. 231: REGISTRY OF UNIONS AND F|LE


OF COLLECTIVE AGREEMENT

The CBA is more than a contract; it is highly


impressed with public interest for it is an
essential instrument to promote industrial
peace (TUP v. Laguesma, GR No. 95013,

is not a

requisite for its validity.

lnc., GR Nos. 58768-70, December

29,

1989).

ART. 232:

PROHIBITION

ON

CERTIFICATION ELECTION

Contract-Bar Rule - While a valid and


registered CBA is subsisting for a FIXED
PERIOD OF 5 YEARS, the Bureau is not
allowed to hold an election contesting the
majority status of the incumbent union
EXCEPT during the sixty (60) day-period
immediately prior to its expiration, which
period is called the FREEDOM PERIOD.

Note: ln the absence of such timely notice or


filing of petition, the contract executed during

the automatic renewal period is


certification

bar to

lection.

September 21, 1 994).

An

Unregistered CBA does

not

There shall be no amendment, alteration, or


bar

termination of any of

certification election (Contract-Bar Rule will not

apply in the absence of registration). (See


notes under Arts. 253, 253-A and 256).

Procedure for Reg istration


1. Submission of copies of the CBA to the
Bureau of Labor Relations or the regional

offices

of DOLE within 30 days from

execution, accompanied by the following:

. a.
b.

2.

Verified proof of posting in two


conspicuous places in the place of

work; and

Verified proof of ratification by the


majority of all the workers in the

YEAR
te
signed

six (6)

bargaining unit.

Action upon the application for registration


within five (5) calendar days from receipt
thereof

Requisites
parties

have duly

79

LABORLAW
LABOR RELATIONS
was ratified by the union membership;
contains substantial
terms and conditions of employment;
4. It encompasses the employees in the

2.

It

3.

It is adequate for it

5.

appropriate bargai ni ng unit,


It was not prematurely extended, the CBA

was not hastily entered inlo (doctrine of


premature extension does not bar a
o.

certifi cation el ecti on );


It is for a definite period;

7.

No schism or mass disaffiliation affects the

8.
9.

contracting union during the lifetime of the


agreement;
The contracting union is not defunct;
The contracting union is not company-

dominated (see discussians in Arts.


259 Petition for Certification Election).

As now amended by R.A. 9481, Att. 234


makes specific reference to the following

(not

to

merely
any
organizations
organization) which may register as labor
organization, to wit:
Federation

1.
' 2.
NationalUnion
3. lndustry Union
4. Trade Unlon Center
5. lndependent Union

25G^

ART. 233: PRIVILEGED COMMUNICATION

Privileged Communication - any statement


of such privacy that the law exempts the
person receiving the information from the duty
to disclose it.

Not Available As Evidence

lnformation

and

statements made

at

conciliation proceedings shall be treated as


privileged comrnunication and shall not be
used as evidence in the Commission.
Conciliators and similar officials may not testify
in any couft or body regarding any matters
conciliation proceedings
taken
conducted by them.

up at

TITLE FOUR. LABOR ORGANIZATIONS


CHAPTER I. REGISTRATION AND
CANC,ELLATION

ART.234: REQUIREMENTS OF
REGISTRATION

Principle of Agency Applied

1. Principal - employees
2. Agent - locaUchapter
3. Agent of agenf - federation
Purpose of Formation of Labor Unions: for
securing fair and just wages and good working
conditions for the laborers; and for the
protection of labor against the unjust exactions
of capital.

Modes of Acquiring Legitimacy for Labor


Organizations (RC)
1. $egistration with the BLR (lndependent

2.

Union).

Qhartering or issuance of a federation or


national union of a charter certificate.

80

Any labor organization in the


private sector organized for

collective bargaining and for

$uu Eeb!

@ollege

d{.eb

201T CENTRALIZED BAR OPERATIONS


Glassification of Labor Organizations
1. National Union/Federation - any labor

organization

with at least

locals/chapters each of which

10
must be a

duly certified or recognized

2.

collective

bargaining agent.

lndustry Union - group of legitimate labor


organizations within an identified industry,
organized for collective bargaining or for
dealing with employers concerning terms

and conditions of employment within an


industry or for participating in the
formulation of social and employment

3.

policies, standards, and programs in such


industry registered with DOLE.
Trade Union Center - group of registered
national unions or federations organized

for the mutual aid and protection of

its

members and for assisting such members


in collective bargaining or for participating

in the formulation of social and


employment policies, standards, and
programs duly registered with the
4.

Department..

Alliance - aggregation of unions existing


in one line of industry or in a
conglomerate, a group of franchisees, a

applicable only to registration of independent


union.

The Labor Code and its implementing rules do


not require that the number of members
appearing on the documents in question
should completely dovetail. For as long as the

documents and signatures are shown to be


genuine and regular and the constitution and
by-laws democratically ratified, the union is

to have complied with registration


requirements. (The Heitage Hotel Manila
vs. Pinag-isang galing and lakas ng mga
manggagawa sa Heritage Manila (PiglasHeritage), G.R. No. 177024, October 30,
deemed

200e.)
ART. 234-4: CHARTERING AND CREATION

A LOCAL CHAPTER {new provision


inserted by R.A.94811

OF

A duly registered federation or natiohal union


may directly create a local chapter BY

ISSUING

CHARTER

CERTIFICATE

indicating the establishment of the local


chapter. The chapter shall acquire legal
personality ONLY for purposes of filing a

geogra.phical area, or an industrial center.


Company union. a labor organization
which, in whole or in part, is employercontrolled or employer-domi nated.

petition for certification election from the date it


was issued a charter certificate.

Requirements for the lssuance of the


Certificate of Registration of a National
Federation, National Union or lndustry or
Trade Union Center or an lndependent
Union (As Amended By RA- 9481, June 15,
200n

organization only upon fhe submission of the


following documents in addition to its chafter

5.

1.

2.

3.

P 50 registration fee;
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

Note: The chapter shall be entitled to all other

rights and privileges

of a

legitimate labor

certificate.

1.

2.
3.

Names of the chapter's officers, their


addresses, and the principal office of the
chapter;
Chapter's constitution and by-laws;

PROVIDED, that where the chapte/s


constitution and byJaws are the same as
that of the federati
this fact

in such meetings;

ln case the applicant is an independent


union, the names of all its members
comprising at least 2}o/o of all the
employees in the bargaining unit where it
seeks to operate (see Art. 255 for
definition of bargaining unit);

4. lf the applicant union has been


5.

in

existence for one or more years, copies of


its annual financial reports; and
4 copies of the constitution and by-laws of
the applicant union, minutes of its adoption.
or ratifioation, and the list of the members
who participated in it.

Note: Creation of a LOCAL CHAPTER does


not need subscription of at least 20o/o of the
members. Minimum number of members

tions

81

LABOR LAW
LABOR RELATIONS
offices, but shall

be processed by the

Note: A labor organization may be organized


under the Corporation Law as a non-stock

corporation and issued a certificate of


incorporation by the SEC. But such
incorporation has only the effect of giving to it
juridical personality before regular courts of
justice. Suctr incorporation does not grant the

right and privileges

the sole and exclusive collective bargaining


agent of the employer they represent.

Bureau.

of a

legitimate labor

organization.

Ministerial Duty of the BLR Gompellable by


Mandamus

To review the application for registration and

not the issuance of a Certificate

of

Registration.

After a labor organization had filed the


necessary papers and documents for

Requirements Before a Federation Gan Be


lssued a Certificate of Registration
Aside from the application, which must be
accompanied with the requirements for

registration

labor registration,

the

the

of

2.

each of which must be duly certified or a

recognized bargaining agent

registration, it becomes mandatory for the BLR


to check if the requirements under Afticle 234

have been sedulously complied with. ll its


application for registration is vitiated by

of a

application should also be accompanied by the


following:
1. PROOF of affiliation of at least 10 locals or
chapters, each of which must be a duly
recognized sole and exclusive collective
bargaining agent in the establishment or
industry in which it operates, supporting
such applicant
registration
federation or national union;
RESOLUTTON of affiliation of at least ten
(10) legitimate labor organization, whether
independent unions or chartered locals

in

the

establishment where it seeks to operate;


and

especially those appearing on the face of the

NAMES AND ADDRESSES Of thc


companies where the affiliates operate
and the list of all the members in each

epplication and the supporting documents, a

company involved.

falsification

and serious

irregularities,

organization - should be denied


recognition as a legitimate labor organization

labor

(Progressive Development Corporation-Pizza


Hut v. Laguesma, et. al, GR No. 115077, April
18, 1997).

Purpose of Registration
Registration with the 6LR is the operative act
that gives rights to a labor organization.

1.

lt is the fact of being registered with the


DOLE that makes a labor organization

it is clothed
personality to claim
representational and bargaining rights
legitimate in the sense that

with legal

enumerated in Afticle 242 or to strike or

' picket under Nticle 263.


2. The requirement of registration is nof a

3.

curtailment of the ight fo associafion. lt is


merely a condition sine qua non for the
acquisition of legal personality by labor
organizations, associations or unions and
the possession of the rights and privileges
granted by law to labor organizations.
tt is a valid exercise of police power since
the activities in which labor organizations,
associations, or unions of workers are

engaged affect public interest, whlch

should be protected (PAFLU v. Sec. of


Labor, GR L-2228, February 27, 1969).

Federation - any labor organization with at


least 10 localJchapters or affiliates each of
which must be duly certified or recognized as

82

3.

Unions at Enterprise Level

labor union at enterprise level may be

created either by:


1. lndependent registration
Chartering

2.

Ssu ffieta

@olJr:ge of Stetn

2011 CENTRALIZED BAR OPERATIONS


Application for Charter

certificate
registration is issued by federation
filed with and will or national union is

be acted upon bY

filed with

the

DOLE Regional Office or


the
Regional Off'ae BLR within 30 daYs

where

the after the issuance of

the

applicant's

charter

principal's office certificate.


is located.

2.

An independently rbgistered union that


entered into an agreement of affiliation
with a federation or national union.

Also refers to

applied

chartered local which

for and was granted

an

independent registration but did not


disafflliate from its mother federation or
national union.

or not.

of Affiliation (As

Amended

1. Report of affiliat-ion of independentlY


registered labor union;
2. Attachments:
a. Resolution of the labor union's board
.b.

c.
d.

the

CBA.

Exception: DISAFFILIATION BY MAJORIry'


Even before the onset of the freedom period'
disaffiliation may still be carried out, but such

disaffiliation must be effected by a majority of


the union members in the bargaining unit.

members of the union. ln such a case,


however, the CBA continues to bind the
members of the new or disatfiliated and
independent union up to the CBA's expiration
Oate. A consent election to determine the
union which shall administer the CBA maybe
conducted.

Limitation

Affiliation of Local Union with a Federation


The procedure of affiliation would depend on
whether the union is independently registered
Requirements
By D.o. n-B)

the expiration of

This happens when there is a substantial shift


in allegiance on the part of the majority of the

Affiliate

1.

immediately preceding

of direc'tors approving the affiliation;


Of the general membership meeting
approving the affiliatiori,
members
The total number
comPrising the labor union and the
names of members who aPProved the
atfiliation;
The certificate of afflliation issued by
the
favor
the federation

of

in

of

independently registered labor union;

Disaffiliation should be in accordance with the


rules and procedures stated in the constitt'fiion
and by-laws of the federation.

A prohibition to disaffiliate in the Federation's


constitution or by-laws is valid - intended for
its own protection.

Ghartered Local - created by a federation or


national union through issuance of a charter'

Revocation gf Charter by the Federation by serving the local/chapter a vetified notice of

r&ocatioi, copy furnished the Bureau on the

ground of disloyalty or such other grounds as

iray

Oe

specified in its constitution or by-laws'

The revocation shall divest the local chapter of


its legal personality upon receipt of the notice

by th-e Bure"u, unless in the meantime ,the


local chapter has acquired indeperdent
of the IRR of
registration (Sec. 5-

and

e. Written notice to the

emPloYer

concerned if the affiliating union is the


incumbent bargaining agent.

Note: Supervisor's union and the rank and file


union operating within the same establishment
may join the same federation or national
union. (Art. 245 amended by R.A. 9481)

Disaffiliation
When affiliated, a local union may disaffiliate
from the federation.

f
divest
locals
reg

ln the
allowed
failing
status
(

When to Disaffiliate

General Rule: A labor union may disaffiliate


from the mother union to forrn an independent
union only during the 60-day freedom period

6)

Art.235:

The Bureau
registration within

for

from filing.

83

LABOR LAW
LABOR RELATIONS

All requisite documents and papers shall be

Registration

under oath by the secretary or the treasurer of

Filed With

the organization, as the case maybe,

for 30day period: The thirty-day


period in Aft 235 ensures that any action taken
by the BLR is made in consonance with the
mandate of the Labor Code, which specifically
requires that the basis for the issuance of a
certificate of registration should be compliance
with the requirements for recognition under
(Progressive Development
Corporatien-Pizza Hut vs Laguesma, G.R. No.
Reason

Att. 234.
Apfl

18, 1997.)

Reason for requiring certification under


oath: To ensure that the labor organization
with which an employer is dealing is a bonafide organization.

not Certiorari, is Proper


remedy. The proper remedy against refusal to
register a labor organization which complies
with all the requirements is mandamus and not
certiorari. Certiorari is not the proper remedy
since the approval of application for
Mandamus,

registration is not a judicial function.

ART.236: DENIAL OF REGISTRATION


Decision
Decision of the Regional Office or the Bureau
denying the application for registration shall
be:

1. ln writing;
2. Stating in clear terms the reason for the
3.

decision; and

Applicant union must be furnished a copy

of said decision

Appeal

Decisions

of the

Regional Otfice shall be

appealable to the BLR and CA. The BLR's


decisions on cases appealed from Regional
Director are final and not appealable to the
Secretary of Labor.
Decisions of the BLR denying the registration
of a labor organization (federation or national
union) is appealable to the Secretary of Labor
the within 10 calendar days from receipt of the
decision, on grounds of:
1. Grave abuse of discretion; or
Gross incompetence.

2.

Decision of Secretary of Labor appealable to


Court of Appeals.

84

lndependent Labor Union

and

attested to by its president.

115077,

of

Bureau of Labor
Relations or Regional
Office
(But processed by
Bureau)

Secretary of Labor
(lf BLR director
denies)

Decision of Secretary
appealable to COURT
of APPEALS

Registration of Federation or National


Union Filed With
Regional office where
union operates
(Processed by Labor
Relations Division)

-R t-

Bureau of Labor Retations


(lf denied by Regional
Director)

-_---

Decision of BLR
appealable to COURT of
APPEALS

Ssn Eets

@ollege of ?tab

20T 1 CENTRALIZED BAR OPERATIONS

of Rules

By application of the

union

federation for the issuance of a charter


certificate to be submitted to the Bureau
accompanied by the following:
1. Copies of its constitution and by-laws.
Statement of the set of offcers and

2.

books of accounts, all of which must

be

certified by

the

Secretary/Treasurer and atested to


by the President. ln such case, the
union becomes a local chapter of the
Federation.

Would not afhct its beinq a


labor organization and therefore it would
continue to have legal personalrty and to
possess all the rights and privileges of a
legiti mate labor organization

pon severance, it would cease to be a


legitimate labor organization and would
no longer have legal personality and the
rights and privileges granted by law to
legitimate organization, unless the local
chapter is covered by a duly registered
collective bargaining agreement. ln the
latter case, fte local or chapter will not

lose its legal personality until

the

expiration of the CBA After the CBA


expires it will lose its legal personality
unless it registers as an independent
union.

valid as the labor

organization can

continue administering the CBA

local chapter will not lose its personality


until the expiration of the CBA. After the

CBA expires the local union loses its


unless it reoisters anew

dues and not the federation from which the

collected as there would no longer be

labor organization dbaffiliated.

any labor union that is allowed to collect


such union dues from the employees.

Note: Follow the principle of

agency

between federation and local.


Principal - employees
Agent - locallchapter

Modes of Appeal

ART.

Denial or Cancellation by.

REGISTRATION

1.

2.
3.

Transmit records within

24

238:

CANCELLATION

hours from

OF
mate

receipt of Memo of Appeal

BUREAU decides within

20

days from

receipt of records
COURT OF APPEALS- Rule 65

hea
SPE
R.A.

Bureau

1.

Transmit records within

24 hours

from

receipt of Memo of appeal

2. SEC. OF DOLE decides within 20 days


from receipt of records
3. COURT OF APPEALS - Rule 65
Note: Appeal by memo of appeal within
days from receipt of notice.

Grounds

1. Grave abuse of discretion


2. Violation of rules as amended

10

ART.
CAN
1.

AI
regis

proc
shall

nor

for

2. ln case

herein

to seek

shall restri

just

and

ies

in

the

appropriate

8s

LABORLAW
LABOR RELATIONS

Director

Any party-ininterest, if
ground is:
1. Failure to

who

has jurMiction
over the place
s
association

operates

days

to

(30

days to decide)
union

centers

3.

237
2.

Trade

and
238, LC.

the
requireme
nts under

decide).

Director

Arts. 2U,

with any of
(30

|
j

Violation
any
provision
under Arf.
239, LC.

of

members of
the labor
organization
concerned if
grounds are
actions
involving
violations of

Aft,241,
subject to the
30% rule.

Effect of Cancellatioh of Registration in the


Course of Proceedings
Where a labor union is a party in a proceeding
and later it loses its registration permit in the
course or during the pendency of the case,
such union may continue as a party without

substitution of parties, subject


however to the understanding that whatever
decision may be rendered therein will be

need

of

binding only upon those members of the union


who have not signified their desire to withdraw
from the case before its'trial and decision on
the merits

(Principle of Agency applied-the employees


are the principals, and the labor organization is
merely an agent of the former, consequently,

the cancellation of the union's registration


would not deprive the consenting member-

employees of their right to continue fhe case


asthey are consideredas fhe pincipals).

86

R.A.94811

Grounds:
1. Misrepresentation, false statement or
fraud in connection with the adoption or
ratification of the constitution and by-lars
2. Or amendments thereto, the minutes of
ratification, and the list of members who

comply

where
respondent
principally

ART.239: GROUNDS FOR CANCELLATION


OF UNION REGISTRATION (as amended by

took part in the ratification;


Misrepresentation, false statements or
fraud in connection with the election of
officers, minutes of the election of officers,
and the list of voters; and
Voluntary dissolution'by the members.

4.
Note: Failure to submit reportorial
requirements is no longer a ground for
cancel!ation but shall subject the erring officers
or members to suspension, expulsion from
membership, or any appropriate penalty. (Art
242-A, new provision inserted by R-A. 9481)
ART. 239-A: VOLUNTARY CANCELLAT]ON
OF REGISTRATION (New Provision

inserted by R.A.94811

The registration of a legitimate labor


organization may be cancelled by the
organization itself PROVI DED:

1. At least V3 of
in a

its general membership

meeting duly called for that


purpose to dissolve the organization;

vofes,

2. An application to cancel registration is


submitted by the board of the organization,
attested to by the president thereof.

to the illegality of
Note: A pronouncem"nt
the strike is not within the""meaning ol Art. 239
of the Code, which provides for the grounds
for cancellation of union registration.

$ur

GeDa @olltge of

ltsb

2011 CENTRALIZED BAR OPERATIONS

b.

3.

The collective bargaining agreement,

Note: ln general, a union is free to select its

and labor laws.


Rights Over gqoney Matters - the rights of
the members:
Against imposition of excessive fees;
Right against unauthorized collection
unauthorized
contributions
disbursements;
require adequate records of
income and expenses;
To access financial records;
To vote on officers' compensation,
To vote op special assessment,
To be deducted a special assessment
only with
membeis written
authorization.

own members, and no person has an absolute


right to membership in a union.

a.
b.

of
c. To
d.
e.
f.
g.

4.

or

the

Political right - the right to vote and be


voted for, subject to lawful provisions on
qualifications and disqualifications.

Note: Any violation of the above rights and


of membership shall be a ground
for cancellation of union registration or
conditions

expulsion of an officer from office, whichever is


appropriate. At least 30% of all ihe members
of the union or any member or members

specifically c-oncerned may report

Who are entitled to vote:


Only members of the union have the eligitrility
to take part in the election of union officers.
Eligibility to vote,may be determined through
the use of the applicable payroll period and the
status of the employees during the applicable

This pertains to the payroll of the


month next preceding the labor dispute, in
case of regular employees, and the payroll
perio.d.

period at or near the peak of operation, in case

of employees in seasonal industries. (Tancino


vs Pura Ferrer-Calleja, G.R. No. 78131, Jan.
20, 1988).

Limitations (See nofes on union security


arrange,nents under Art. 2/r8)
1. The labor organization cannot compel
employees to become members of their
labor organization if they are already

2.

such

violation to the Bureau.

labor organization.

3. The members of

Any employee, whether employed for

RELIGIOUS

ORGANIZATION whose religion forbids


membership in labor organization could
not be compelled into union membership.

Union Membership

definite period or not, shall, beginning on his

first day of service, be considered

member of a RIVAL UNION.

The persons mentioned in Art. 241[e]


(SUBVFRS/yES) of the Labor Code are
prohibited from becoming a member of a

an

employee for purposes of unlon membership.

Levy of Special Assessments or

(Afi.277)

Extraordinary Fees (Art.

Note: The relationship of the union and


members is governed by their mutual

Requirements: (RAMM)

agreement, the terms and conditions of which

are set forth in the union constitution and by


laws and binding on the members as well ag
the organization itself. (Poquiz, 2006, quoting
Ang Malayang Manggagawa ng Ang Tibay
Enterprises, et al. v. Ang Tibay, et al., GR No.
L-8259, December 23, 1957).

241 [Nil

1. There must be a written Resolution;


2. The resolution must have been Approved
by a majority of allthe members; and
3. The approval must be at a general

Membership meeting duly called for that

il be att#b&d'"tq rhvjlfh'trr

Who Are Prohibited From

Becoming
Members/Officers of a Labor Organization
(See nofes under Art. 243 on persons who are

not granted the right to self-organization)


1. Non-employees (Art. 241[c]);

2. Subversives or those engaged in


subversive activities (Art. 241 [eI ; and
3. Persons who have been convicted of a
crime involving moral turpitude shall not be
eligible for election as union officer or for
appointment to any position in the union
(Att. 241tfil.

requ
(

Gheck

from an

87

LABORLAW
LABOR RELATIONS
amounts due to the union for fees, fines or
assessments.

Nature and PurPose of Check-Off


Union dues are the lifeblood of the union' All
unions are authorized to collect reasonable
membership fees, union dues, assessments
and fines and other contributions for labor

education and research, 'mutual death and


hospitalization benefits, welfare fund, strike
fund and credit and cooperative undertakings
(Ar1.277 [a])

Requirements With Regard to Check-Offs


(Art.241[ol)

General Rule: NO special

Fees)
Not necessary:

1.

assessment,

attorney's fees, registration fees or any other


extraordinary fees may be checked off from

any amount due an employee without an

individuat written authorization duly signed by


the employee.

2.

The authorization should specifically state the:


1. Amount; and
the
Purpose and the beneficiary
deduction.

members of

the

of

2.

benefits of

No exception;
written
resolution is

2.

all instances.

For mandatory aetivities provided under


the Code; and
When non-members of the union avail of
the benefits of the CBA:
a. Said non-members may be assessed
union dues equivalent to that paid by

b.

mandatory at

the CBA.
Said nonmembers
may. be
assessed

agency fees
equivalent

to that paid
by members

only

members;

Only by

board resolution approved

by majority of the members in

general meeting called

for

union

avail of the

Exceptions:

1.

for

mandatory
activities
provided
under the
Code; and
when
non-

by

approved by
a majority of

the

purpose.

the

members in

Note: The individual written authorization duly

general
meeting

signed by the employee is an additional


requirement (to RAM) in order that a special
assessment may be validly checked-off. ln
case of check-off another requisite is
necessary in addition to the requirements for
special assessment, enumerated above and
this is, individual written authorization for
check-off duly signed by the employee

concerned. (Eduardo J. Mariho, Jr. d al. vs.


Gil Y. Gamilla, et al., G.R. No. 149763, July 7,
zoae.)

Jurisdiction over Check-Off Disputes


Beirg an intra-union conflict, the Regional
Director of DOLE has jurisdiction over check

Requ

off d-sp:tes.

88

Board
Resolution

2.

He is

3.

He

; and

the CBA.

$sx Gell

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2011 CENTRALIZED BAR OPERATIONS

Note: lndividual written authorization is

not

necessary for the collection of agency fees.

ART. 242-4: REPORTORIAL


REQUI REMENTS (New Provisi on in *rted

by R.A.94811
Reportorial requlrements

to be submitted

by

the legitimate labor organization:

1. Constitution and by-laws, or amendments

Members of a union for Non-members of the


the payment of union bargaining agent (union)

thereto, minutes of ratification, and the list

for the enjoyment of the

ratification of the constitution and by-laws


within 30 days from adoption or ratification

dues

of

benefits under the CBA

May not be

deducted May be deducted from


from the salaries of the the salary of employees
union members without without their written

the written consent of consent


the workers affected

Note: Agency fee cannot be imposed on


employees already in the service and are
members of another union. lf a closed shop
agreement cannot be applied to them, neither
may an agencyTee, as a lesser form of union

security, be imposed

to them. Payment by

non-union members of agency fees does not

amount

to an

unjust enrichment basically


because the purpose of such dues is to avoid
discrimination between union and non-union
members (NABAILU y. San Miguel Brewery
lnc., GR No. 18170, August 31, 1963).

members who

took part in

of the constitution and

2.

by-laws

List of officers, minutes of the election of


officers, and list of voters within 30 days
from election;

3. Annual financial report within 30 days after


the close of every flscal year; and
4. List of members at least once a year or
whenever required by the Bureau.

to compy with thi: abovementioned requirements shall nof be a ground


for canettation of union registration but shall
subject the erring officers or members to
Note: Failure

suspension, expulsion from membership, or


any appropriate penalty. (As insefted by Sec.
7, R.A.9481)
TITLE FIVE. COVERAGE

ART. 243: COVERAGE AND EMPLOYEES'


RIGHT TO SELF-ORGANIZATION

When the union bids

1. To form, join and assist

to be the bargaining

agent, it voluntarily assumes the responsibility

representing

all

employees

in

Extent of the Right to Self-Organization

the

appropriate bargaining unit.

CHAPTER

III.

RIGHT.s

OF

'or

amendments the'reto;

Employee-Members of another Union NOT


Gonsidered Free Riders

of

the

LEGITIMATE

LABOR ORGANIZATIONS

2.

labor
organizations for the purpose of collective
bargaining through representatives of their
own choosing; and
To engage in lawful concerted activities for

the same purpose or for their mutual aid


and protection. (Art. 246)

ART. 242 RIGHTS OF LEGITIMATE LABOR


ORGANIZATIONS

Rights of A Legitimate l.abor Organization


(USERFOE)

1. lndertake activities for benefit of


members;

2.
3.
4.

$ue and be sued;

5.

furnished

6.
7.

lxclusive representative of all employees;


Represent union members;

by

employers

of

audited

financial statements;
Qwn properties; and
Exempted from taxes.

89

LABOR LAW
LABOR RELATIONS

Pqsn{Employees Eligible to Join a Labor


Organization for Purposes of Collective
Bargaining

1. All

persons employed

in

gommercial,

lndustrial and ggricultural

(ClA)

enterprises, including employees of


controlled
Government-owned or
corporation without original charters
established under the Corporation Code
and

2. ln

geligious, gharitable, ggedical or


gducational (RCME) institutions whether
operating for profit or not.

Persons/Employees eligible to

ioin a

labor

organization for mutual aid and protection:


(ArRSrW)

1. Ambulant; (Walking or Mobile Workers)


2. lntermittent (lrregular workers)
3. $ural;
4. $elf-employed people
5. ltinerant workers (Working for a short time
in various p/aces.); and
6. Workers without any definite employers.
Person{Employees wha are NOT granted the
ri g ht

1.

2.
3.

to self-o rg an i zafion;

High-level

or

EMAC ENGA)

employees (Sec, 3; E.O- 180)',


Employees of international organizations
with immunities {ICMC v. Calleja, GR No.
85750, September 28, 1990)',
Managerial employees
Whose functions
normally
policy-making or
considered
managerial:
b. Whose duties are
highly

a.

are

as

confidential

4.

(H

managerial government

of a
or highly technical

in

nationals of a country which do not grant


Filipinos to exercise the right of selforganization and to join or assist labor
organizations. (Article 269, Labor Code:
Department Order No. I [1997], Rule 11,
Sec.2.l

Eligibility

of

Foreigners

to

Form Labor

Organization
Aliens working in the country with valid permits

issued by DOLE, may exercise the right to


self-organization and join or assist labor
organizations of their own choosing for
purposes of collective bargaining; provided,
that said aliens are nationals of a country
which grants the same or similar rights to
Filipino workers. (Art. 269) This embodies the
PRINCIPLE OF RECIPROCIry.

Religious Objectors
The rights of the members of the lglesia ni

Krlsfo sect not to join a labor union for being


contrary to their religious beliefs does not bar
mernbers of that sect from forming their own
union. The recognition of the tenets of that
sect should not infringe on the basic right to
self organization granted by the Constitution to

of

religious affiliation.
(Kapatiran v. Calleja, GR No. 82914, June 20,
1988)

workers regardless

ln fact, they can vote for "No-Union" in a


certification election in the exercise of their
right to self-organization. (Reyes v. Trajano,
GR No. U433, June 2, 1992)
ART.244: RIGHTS OF EMPLOYEES IN THE
PUBLIC SERVICE

nature (Aft.212, LC);

Members of the grmed Forces of the


Philippines, including police officers,
policemen, firemen and jail guards (Sec. 4,

E.O. 180);

5. Qonfidential employees
lndusties Inc.

6.

7.

v.

(Metrolab

Confesor, GR No.

108855, February 28, 1996|;


Employees of cooperatives who are at the

same time its members (Benguet Elec.


Coop. v, Ferrer-Calleja, GR No. 79A25,
December 29, 1989), However, they may
form a workeds association (NEECO
Employees' Assoc. v. NLRC, GR No.
116066, January 24, 2000),

lon-Employees (Rosarlo Bros. v. Ople,


GR No. L-53590, July 31, 1984)

8. Qovernment Employees, including


Government-owned

and

controlled

corporations wlfh original charter (Arizala


v. CA. 189 S?RA 5U)

9. {liens

without valid working permits; or

Aliens with valid working permits but are

90

governed

Code can
with the

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2011 CENTRALIZED BAR OPERATIONS
negotiate
collective
negotiation agreements
MOA) with the

the terms and


of
conditions
employment. Thus, theY
unlimited
have

govemment

bargaining rights.

they can
(through

or

on

those
terms and conditions of
employment which are
not fixed by law. Thus,

they have

Can form, join, or assist

labor organization for


purposes ofCBA etc.

duly

recognized employees'
and appropriate government

authorities(Sec. 73, E.O. 1ffi)

Exieption: Those terrns and conditions

of

employment that are fixed by law (/bld.).

Forming, Joining, or Assisting Employee's


Organization

General Rule: ALL government employees

can form, join or assist

emPloYees'

organizations of their own choosing for the


furtherance and protection of their lnferesfs.

They can also form

labor-management
committees, work councils and other forms of
workers' participation schemes to achieve the
same objectives (Sec. 1, E.O. 180).
I

Exceptions:
High-level employees whose functions are
normally considered as policy-making or
managerial or whose duties are of a highly
confidential nature (Sec. 3, E.O. 180); and
Members of the Armed Forces of the
Philippines, including police officers,
policemen, firemen and jailguards (Sec- 4,

E.O. 180)
Note: Employees of government corporations
incorporated under the Corporation Code and
registered with SEC are governed by the
Labor Code not by E O. 180. They are allowed
to organize for:
1. They are not involved in public service;
and
Terms of employment are not flxed by law'

2.

Protection of the Right to Organize

1.

Government Services

organizations

to law

2.

E'O'

Terms and Conditions of Employment in

between

purposes not contrary

1.

6,

employment or improvements in government


services may be the subject of negotiations

limited

labor
assist
organization for

government authority (Sec.

180\.

General Rule: The terms and conditions of

hraroainino riohts-

Can only form, join or

of

Negotiable Terms and Conditions of


Employment in GOGCS with Original
Charter

1. Schedule of vacation and other leaves;


2. Work assignment of pregnant women;
3. Personnel growth and devetopment,
4. Communication system - latefat and
vertical;
Provision for protection and safety;
Provision for facilities for handicapped
personnel;
7. Frovision for first-aid medical services for
married women;
8. Annual medicaUphysical examination; and
9. Recreational, social, athletic and cultural
facilities (Rules
activities
lmptementing E.O. 180)

5.
6.

and

The Following are considered NOl


Negotiable
1. Those which require appropriation of
funds, such as:
a. lncrease in salary emoluments and
Other allowance not PresentlY
b.

c.
d.
e.

provided for bY law;


Facilities requi ring capital outlays;
Car plan;

ceis

u&#&h

eT"{s$

hFtdi e.s;

Government employees shall not be


discriminated against by reason of their

membership in employees' organizations


or participation in the normal activities of

2.

theirorganization (Sec. 5, E.O. 180)'


Their employrnent shall not be subject to
the condition that they shall not join or
shall relinquish their membership in the
employees' organizations

bid-).

Government authorities shall not interfere

in the establishment, functioning or


administration of government employees'
organizations through acts designed to
place such organizations under the control

linkages.

91.

LABOR LAW
LABOR RELATIONS
To sum up, government employees covered
by E O. Na. 180 may organize, even unionize,
and negotiate employment conditions not fixed
by law but they cannot strike. (Azucena, 2A07)

Registration of Employees' Organization

Jurisdiction
Any dispute which remains unresolved after
exhausting all available remedies under
existing laws and procedures may be jointly
referred by the parties to the Public Sector
Labor-Management Council for appropriate
action.

Whqe to Rqister
Government employees' organizations shall
register with the Civil Service Commission and

Likewise, the PSLMC has jurisdiction to hear

charges

of ULP filed bY government


lt is

DOLE.

employees against their employer.

The application shall be filed wiih the Bureau


of Labor Relations (BLR), which shall process
the same in accordance with the provisions of

1.
2.
3.

LC.

Applications may

Regional Offices

also be filed with the


of DOLE, which shall

composed of the following:


Chairman - Civil Service Commissioner;
Vice-Chairman - Secretary of Labor; and
Members.
Secretary of Finance
Secretary of Justice
Secretary of Budget (Sec. 15' E.O'

a,
b.
c.
1

80)

immediately transmit the said applications to


the Bureau of Labor Relations within three (3)
days from receipt thereof (Sec. 7, E.A. 180).

ART. 245: lNELlGlBlLlTY

lssuance of Rqi strati on Certifi cate

EMPLOYEES

Upon approval of the application, a registration


certificate shall be issued to the organization
recognizing
as tegitimate employees'

1.

it

organization with the right to represent its


members and undertake activities to further
and defend its interest.

oF MANAGERIAL

TO JOIN ANY

I.ABOR
ORGANIZATION; RIGHT OF SUPERVISORY

EMPLOYEES

Managerial Employees - those who are


vested with powers or prerogatives to lay
down and execute management policies
and/or to hire, transfer, suspend, lay-off,

recall, discharge, assign

or

discipline

employees.

The certificates of registration shall be jointly


approved by the Chairman of the Civil Service
Commission and Secretary of Labor (Sec. I
E.O. 180).

Voluntary Recognition
A duly registered employees' organization
shall be accorded voluntary recognition:
1. upon a showing that no other employees'

organization is registered or is seeking


registration, based on records of the
Bureau of Labor Relations; and

2. the said organization has the majority


support of the rank-and-file employees in
the organizationalunit (Sec. 11, E.O.180).

Certification Election

two or more duly registered


employees' organizations in the appropriate
organizational unit, the BLR, upon petition,

Vy'here there are

shall:

1. Order the

conduct

election; and

2. . Certify the winner


representative of

of a

certification

as the

the

exclusive
rank-and-file

employees in said organization unit (Sec.


12, E.O.1W).
M

92

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2011 CENTRALIZED BAR OPERATIONS

'

same company cannot affiliate with the

to be on the side of the employer to act as


its representatives, and to see to it that its

same federation if the following concur

a. The rank-and-file employees are


directly under the authoritY of
supervisory employees; and
b. The national federation is ac{ively
involved in union ac{ivities in the

interests are well protected. The employer


is not assured of such protection if these
employees are union members.
ln the same manner, the labor union might
not be assured of their loyalty to the union
in view of the evident conflict of interest.

The union can also become companydominated with the presence of

managerial employees

in

union

membership (Bulletin Publishing Co. lnc.


v. Hon. Sanchez, GR No. 74425, October
7, 1986).

Note: . Art 245 does not absolutely


disqualify managerial employees from
exercising their right of association. What
it prohibits is merely the right to join labor

company.

3.

Confidential Employees - A confidential


employee is one entrusted with confidence

on delicate matters, or with the custody,


handling, or care and protection of the
employer's property.
By the very nature of their functions, they
confidential
capacity, (2) to persons who formulate,
determine, and effectuate management
policies in the field of labor relations.

(1) assist and act in a

organizations.

2.

Supervisory Employees - those who, in


the interest of the employer, effectively
recommendiuch manageriil actions if the
exeroise of such authority is not merely
routinary or clerical in nature but requires
the use of independent judgment.

Supervisory Employees May Form,


Assist, Join A Labor Organization
On their own and NOT with the rank-andfile employees (R.A. 6715 as amended by

R.4. e481))

lf their responsibilities do not inherently


require the exercise of discretion and
independent judgment, (or merely
routinarylclerical in nature) then they may
join the union composed of the rank-andfile employees.

The TWO CRITERIA ARE CUMIJLATIVE,


and both must be met if an employee is to
be considered a confidential employee -

e.9., the confidential relationship must


exist between the emPloYee and his
SUPERVISOR, and the supervisor must
handle the prescribed responsibitities
relating to labor relations. As such, the
rationale behind the ineligibility of
ma4agerial employees to form, assist or

join a labor union equally applies to them.


(PIDI v. NLRC, GR No. 88957, June 25,
1992) Under the doctrine of necessary
implication, confidential employees are

similarly disqualified.

(NATU-Republic

Planters Bank v, Torres, GR No. 93468,


December 29, 1994).

Note: The phrase 'lN THE FIELD OF


LABOR RELATIONS" is imPortant. lt

stresses labor nexus, i.e. confidentiality of

Note: lt is the nature of the employee's


functions and not the nomenclature or title
given to his job which determines whether
he has a rank and file or managerial status
v. NLRC,
GR No. L-59221, December 26, 19U).

(Engineering Equipment, lnc.

The rank and file union and

to

regard6@

labor

&hffi3&ployer

the

supervisors' union operating within the


same establishment may join the same

v.

federation or national union (As Amended


by R.4.9481j.

No.

Separation of Unions Doctrine


However, in the case of Atlas Lithographic

not
r having
the
not every
managerial,

IS

Seryices lnc. vs. Laguesma, (G.R No.


96566, January 6, 1992) a supervisor's
union and a rank-and-file union in the

of

93

LABOR LAW
LABOR RELATIONS
othetwise deal .with each other

he maY be a suPervisory or even a

atmosphere

rank-and-file emPloYee.

ART. 245-A: EFFECT oF lNcLUSloN AS

MEMBERS OF EMPLOYEES OUTSIDE THE


BARGAINING UNIT (new provision inserGd
by R.A.9181)

The inclusion as union members of employees

outside the bargaining unit shall NOT be a


ground for the cancellation of the registration
if the union. Said employees are automatically
deemed removed from the list of membership

5.

a certiflcate of

registration is

issued to a union, its legal personality cannot

be subject to a collateral attack

lt

may be

questioned only via a petition for cancellation,


under the grounds provided for in Art' 239'

ART. 246: NON.ABRIDGEMENT OF

THE

RIGHT TO SELF.ORGANIZATION

It Shall Be Unlawful For Any Person

to:

(RCDI)

Hinder the promotion of healthy and stable


labor-management relations and mutual
respect (unitaote labor-management
relations).

self-organizational

giving tesiimonY under the Code'

: 1-"t elemeni of ULP does not apply to


yellowdog condition
o ULP has a technical meaning'
r .' lt is a practice unfair to labor, althoughorthea
ofenObr may either be an employer

labor organization.
lt referJto acts opposed to workers' right
io organize (Anti-unionism acfs) Without

this, ihe act, no matter how unfair' is not

Note: AnY act intended to weaken or

defeat the right is regarded by law as an

called

"UNFAIR LABOR PRACTICE'.


TITLE SIX. UNFAIR LABOR PRACTICES

ULP.
It commonly connotes ant i-u nioni sm'

It also refers to gross violation of CBA


is
[toui"ion". Gross means the act
malicious and flagrant.

ULP

are not, in view of the public

"""""
involved, subject to compromse'
interest
iiee CtLc E.G. Gochuangco Worker's

'iiion r". NLRC, G.R No. 67158, 30 MaY


teAO; nfp Mutual Benefit Association' lnc'
,i- nrp-MaAt-EU, 97 scRA 715, 7s2

CHAPTER I. CONCEPT

ART.24?: UNFAIR LABOR PRACTICES


Unfair Labor Practice

1. Any unfair

2.

labor practice as expressly

defined bY the Code.


Any act intended or directed to weaken or
defeat the worker's right to self-organize or

to

engage

in lawful concerted activities

(Azucena,2007)
Nature of Unfair Labor Practices:
1. Ciminal offenses against the State,
2. Violations of civil ights of both labor and
management;

3. Violate the constitutional right of workers


and employees to self-organization;
4. Ne inimicat to the tegitimate inferesfs of
both labor and management, induding
their right to bargain collectively and
94

right

"nq.1!:
oU""i""n." ot i CSn, except Arf' 248ltl'
ror
employee
an
dismissing or prejudicing

self-organization.

technically

respect;
DisruPt industial Peace', and

;;;k;*'

is

an

Note: Prohibited acts are all related to the

employees and
workers in their exercise of the right to

offense, wnlcn

in

mutual

as an act of unfair labor Practice'

1. $estrain;
2. Qoerce;
3. piscriminate against; or
4. Unduly lnterfere with

and

freedom

Elements of Unfair Labor Practice


between
1. Employer-employee relationship
the'offender and the offended, and
2. Act done ls expressly defined in the code

of said union.

Reason: After

of

owtl acprnpr
ing ari4#lldbt

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2011 CENTRALIZED BAR OPERATIONS


CHAPTER II. UNFAIR LAtsOR PRACTICES

Aspects of Unfair Labor Practice

OF EMPLOYERS

1, Offcers and agents of 1. Agents and ofiicers


employer; or
who pafticipated ar
authoized or r
2. Labor organizatlon,
the act, and

officers and agents.

2.

ordinary

members. (Att. 289 &

Att.249)

MTC/RTC, as the
case may be (Art.
288)

beyond reasonable
doubt (subject to
and

punishment)

the

accrual of the ULP act


(Art.290)

one year from the


accrual ofthe ULP act
(Art. 290), however, it

will be
once

suspended
the

administrative case
has been filed and
would only continue

running once

interfere with, restrain

or

coerce

Test: whether the employer has engaged


in cuduct which, it may reasonably be

said, tends to interfere with the free


exercise of the employees' right and it is
not necessary that there be direct
evidence that any employee was in fact
intimidated or coerced by the statements
of threats or the employer if there is a
reasonable interference that the anti-union

prosecution
one year from

lnterference

To

self-organization.

members of the
government board,

substantial evidence

1.

employees irr the exercise of their right to

Agents,
representatives,

including

ART. 248: ULP THAT MAY BE COMMITTED


BY AN EMPLOYER

the
administrative case
has attained finality.
Final judgment in the
administrative
proceeding finding
that ULP has been
a
committed

is

prerequisite in filing a
criminal case for ULP.

Notel Final judgment

the

conduct of the employer does have an


adverse effect of self-organization and
collective bargaining. (The lnsular Life
Assurance-NATU v. The lnsular Life
Assurance Co., Ud., No. L-25291, January
s0, 1971)
Totality of Conduct Doctrine
The culpability of employe/s remarks is to
be evaluated not only on the basis of their
implications, but against the background of
collateral
conjunction
circumstances. (l b id.)

and in

with

Examples:

a.
b.

Outright and unconcealed intimidation

ln order that interrogation would not


be deemed coercive:

i.

ii.

The employer must communicate

to the emploYee the

PurPose of

questioning

Assure him that no reprisal would

iii.

in

administative
proceedings shall not be

binding

in the criminal

requirem

ents prescribed

c6e nor shall be


considered as an
eviderce of guilt bd
merely as a proof of
compliance of the
bythe Code.

9s

LABOR LAW
LABOR RELATIONS

interets

of the company

dernand

Unless there are circumstances

it

which direcfly point to interference by the


cornpany with the employees' right to selforganization, the transfer of an employee
should be considered as within the bounds
allcryved by law (e.9. despite transfer to a
lower position, his original rank and salary

remained
Phils., v. NLRC, GR No. 75704, July 19,
undiminished) (Rubberworld

,989).

2.

Runaway Shop

reasonably

Yellow Dog Condition


To require as a condition for employment

industrial Plant

to

4.

Company-Domination of Union
To initiate, dominate, assist or otherwise

interfere

with the formation or

administration of any labor organization,


including the giving of financial or other
support to it or its organizers or officers.

that a person or an employee shall not join


a labor organization or shall withdraw from
one to which he belongs.

Company Unionism/Captive Unionism


Considered as a ULP because the officers
will be beholden to the employers and they
will not look after the interest of whom they

Yellow Dog Contract - a promise exacted

represent.

from workers as a condition

of

employment that they are not to belong to,

or attempts to foster, a union during their


perrod of employment. lt is null and void

Forms.'

a.

lnitiation of the company union idea


by:

i. Outright formation by employer or


his representatives;
ii. Employee formation on outright

because:

a.
b.
c.

ll is contrary to public policy for it is


tantamount to involuntary servitude.
lt is entered into without consideration
for employees in waiving their right to
self- organization.
Employees are coerced to sign
contracts disadvantageous to their

family.

Note: One of the cases of ULP that may


be committed in the absence of an Er-Ee

demand or influence bY emPloYer;

iii.

and

Managerially motivated formation


by employees.

b.

Financial support to the union by:

i. Employer defraYs union exPenses;


ii. Pays attorneY's fees to the
attorney who drafted the
Constitution

relationship.

3-

- an

moved by its owners from one location to


another to escape labor regulations or
discriminate against
state laws or
employees at the old plant because of
their union activities.

or by laws of

the

union;

Contracting Out
To contract out services or functions being
performed by union
when such
'wijl interfere with,members
restrain or coerce
employees in the exercise of their right to
self-organization.
Does Art. 248[c] mean that an employer
cannot contract out work?
NO. Contracting out services is not ULP
per se. lt is ULP only when the following
conditions exist:
1. The service contracted out are being
pertormed by union members; and

2.

c. Employer enco'uragement and


assistance - lmmediately granting of
as bargaining
agent without determining whether the
the
unron
exclusive recognition

ty of

of dism

Such contracting out interteres with,


restralng or coerce imployees in the

exerclse

of their ight to

seff,

organization.

HOWEVER, when the contracting out is


betng done for business reasons such as

decline

in

business, inadequacy of
equipment or to reduce cost, then it is a

valid exercise of management prerogative.

96

leges
under

Ssu Stbu @olle[t

{.m

of

2011 CENTRALIZED BAR OPERATIONS

c.
d.
e.
f.

directed to encourage or discourage union


membership.
Three Components of Discrimination:
lt prohibits discrimination in terms and
conditions of employment in order to
encourage or discourage membership

a.

S.

in the union;

b. lt gives validity to union security


agreements; and
c. lt allows an agency shop arrangement
whereby agency fees may

the motions of negotiating without any


Iegal intent to reach an agreement. lt
involves the question of whether or not

be

the employer's conduct demonstrates


an unwillingness to bargain in good
faith or is merely hard bargaining
(Standard Chartered Bank v. Hon.
Confesor, GR No. 114974, June 16,

Discrimination Distinguished

from
Classification
While discrimination is considered an unfair
labor practice, classification is not because it
accords them the appropriate levels of pay or
benefits due them by reason thereof.

6.

unrelated matters;
Refusal to accept requeststo bargain;
Rejecting a union's offer to prove its
majority claim;
Shutdown to avoid bargaining; and
Engaging in surface bargaining.

Surface Bargaining- going through

collected from non-union members.

merely differentiates the employees in


accordance with their respective jobs and

Delaying negotiations by discussing

20A4 June 2004).

8.

Paid Negotiatjon
To pay negotiation or attorney's fees to the
union or its otficers or agents as part of the
collective
any issue
bargaining or any other disputes.

settlement
Discrimination because of Testimony

To

dismlss, discharge or othenuise


prejudice or discriminate against an

employee for having given or being about

to give testimony under this Code (Ihe


only ULP ad whieh is not anti-unionism).

Subject Matter

of

9.

of

in

Violation of CBA

The violation must be gross;

flagrant
and/or malicious refusal to comply with the
economic provision of the CBA (Att. 261).

anything under the Code.

Note: 'GROSSLY VIOLATE" phrase is an


amendment by R.A. 6715. Hence, if the
violation is not gross, it is not ULP but a

What is ULP is the employer's retaliatory

grievance under the CBA.

Testimony: can be

act.regardless of the subject of employee's

complaint

or

testimony.

ln

effect,

if

retaliatory act is done under Arf. 118, the

consequence
(Mabeza

is ULP under Arf. 248[f]

v. NLRC, GR No. 118506, April

must have
relation to the employees'
exercise of their right to self-organization. Anti-

union or anti-organization motive must be

proved because it is a definitional element of

18,1997).

7.

Note: All the aforementioned acts (Nos. 1-9)

ULP.

Violation of Duty to Bargain


To violate the duty to bargain collectively

The burden of

as prescribed by this Code.

as a

The following acfs are held to constitute


refusal to bargain:
Alleging that the union is irresponsible;
b. Transferring operation to elude the
union; (Run - Away shop);

rbdbbh#ffffii#

might

a.

- is an unfair labor
practice of management which usually
takes place by effecting the transfer of
Run-Away Shop
ownership,
equipment,

the plant itself, or its


or by temporarily closing

business purposely to bust the


union or to evade the payment of

its

legitimate obl igations.

mere

Con
employer

where
exercising

97

LABOR LAW
LABOR RELATIONS
union in good standing as a condition for

discharge, and the employee quits as a result


of the prohibition.

Security Arrangements - stipulations in the


CBA requiring membership in the contracting
union as a condition for employment or

continued employment.

2.

employed by the employer but once


employed such employee must, wlthin a
specific period, become a member of the
contrac\ing union and remain as such in
good standing for continued ernployment
for the duration of the CBA. (Take note of

retention of employment in the company.

Security
Union
Principles of
1. Protection - to shield union members

Clauses/Arrangements

the exceptions in the preceding number.l

from whimsical and abusive exercise of

2.

management prerogatives.
Benefits - an additional membership will

insure additional source of income to the

union in the form

3.

special assessrient.

Self-preservation

of union dues

- it

3. Saintenance of

and

members to join the contracting union BUT


provides that those who are members
thereof at the time of the execution of the
CBA and those who maY thereafier, on
their own volition, become members must
for the duration of the agreement maintain

strengthens the

of Union Security
to ULP on

their membership in good standing as a


condition for continued employment in the

Arrangements (Exceptions

company for the duration of the CBA.

lnterference on the Employees' Right to SelfQrg an i zat ion) (CU M M -PA-BE)

1.

4.

Closed-Shop Agreement

. The employer undertakes not to

employ any individual who is not a


member of the contracting union and
the said individual once employed

must.

.
.

for the

duration

of

the

agreement, remain a member of the


union in good standing as a condition
for continued empoyment.
Does not have any retroactivity.
Applies only to new hires

Exceptions:

a.

Employees belonging to any religious


sect which prohibit affiliation of their
members with any labor organization
are not covered by such agreement.
The free exercise of religious belief is
superior to contract rights (Victoriano

v.

b.
c.
d.

Preferential Shop Agreement

An

agreement wherebY

merely agrees

the

emPloYer

to give preference to the

members of the bargaining union in hiring,


promotion or filing vacancies and retention
in case of lay-off. The employer has the
right to hire from the open market if union
members are not available.

{gency Shop Agreement


An agreement whereby employees must
either join the union or pay to the union as
exclusive bargaining bgent a sum equal to
that paid by the members.

Note: This

is

directed against "FREE

RIDER'
activiti
the

Elizalde Rope Workers, No. L-

25246, September 12, 1974).


Members of the rival union are not
covered by such arrangement.
Confidential employees excluded from
rank and file bargaining unit
Employees excluded by express term
of the agreement

Semi-Closed Shop Agreement - the


prospective employee must be a member
of the union as a condition of employment
and has no requirement for the employee
to remain as member of the contracting

98

MembershiP ShoP

Agreement
The agreement DOES NOT require non-

union through selective acceptance of new


members on the basis of commitment and
loyalty.

Different Kinds

Union Shop Agreement


Stipulation whereby any person can be

the
the
ing

Em

bers at

the

need not

join th
thereafter

hired

$il

6eDs @ollege of {.sb

2011 CENTRALIZED BAR OPERATIONS

7.

and conditions under which membership

lxclusive Bargaining Shop


The union is recognized as the exclusive
bargaining agent for all employees in the

or continuation of membership is

bargaining unit, whether union members

Note:

or not.

8.

reasons

Requirements for a Valid Termination by


the Employer of the Services Closed-Shop
Agreement
1. The agreement must be expressed in a
CLEAR AND UNEQUIVOCAL way so as

leave room

can only

and

4. lt can only. be exercised by giving the


employee his right to DUE PROCESS.
a. The employer has the right to satisfy
for the request of the union.

The termination of the services of the


employee is not automatic upon the
request of the union.
CANNOT BE APPLIED to employees

who are already MEMBERS OF

of

the

services which are not performed or not to


be performed, as when a union demands

that the employer maintain personnel


excess of the latte/s requirements.

THE

RIVAL UNION or to the employees based


on
their RELIGIOUS BELIEFS.
,

in

Note: lt is not featherbedding if the work is


performed no matter how unnecessary or

CHAPTER III. UNFAIR LABOR PRACTICES


OF LABOR ORGANIZATIONS

useless it may be.

To ask for or accePt negotiation or

ART. 249: UNFAIR LABOR PRACTICES OF


LABOR ORGANIZATIONS
1.

representative

Featherbedding (make-work activities) refers to the practice of the union or its


agents-in causing or attempting to cause
an employer to pay or deliver or agree to
pay or deliver money or other things of
value, in the nature of exaction, for

himself that there are sufficient bases

5. lt

the

employees;
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 a fee
for union negotiations.

cannot be applied retroactively.

b.

or for causes foreign to

that it is the

for

PROSPECTIVE APPLICATION

be

To violate the duty ar refuse to bargain


coltectively with the employer provided

interpretation
because it is a limitation to the exercise of
the right to self-organization.
Any doubt must be resolved against the
existence of a closed-shop agreement.
have
agreement

2.
3. The

union member maY not

closed-shop agreement. (Manil a Mandarin


Employees Union v. NLRC, No. L-76989,
September 29, 1987)

agent only for its own members.

to

expelled from the union, and consequently


from his job, for personal or impetuous

pargaining for Members Only


The union is recognized as the bargaining

not

made

available to other members;

attorney's fees from employers as part of

the settlement of any issue in collective

Io

restrain or caerce employees in the


exercise 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;

Note:

INTERFERENCE

1.

by

2.

labor

organization is not ULP as long as the


interference does not amount to restraint

3.

or coercion.

for a
To cause or attempt to cause an employer

to

labor

discriminate against an employee,


including discrimination against an
employee with respect to whom
membership in such organization has

dispute.
Resulting

been denied or to terminate an employee


on any ground other than the usual terms

contract" improve the

em

substantially

and benefrb

99

LABOR LAW
LABOR RELATIONS
and whose benefits are lar below those that
are proMded bY law.

Ju

risdictional Preconditions (D-PPE)

1,
2.

Blue-Sky Bargaining - is defined as making

exaggerated

or

unreasonable proposals.

Whether or not the union is engaged in bluesky bargaining is determined by the evidence
presented by the union as to its economic

demands. Thus, if the union requires


exaggerated or unreasonable economic
demands, it is guilty of ULP (Standard
Chartered Bank v. Hon. Confesor, GR No.
114974, June 16 2ffi4)
TITLE SEVEN. COLLECTIVE BARGAINING
AND ADMINISTRATION OF AGREEMENTS

ART.

250:

PROCEDURE

lN

COLLECTIVE

BARGAINING

Collective Bargaining - obligation to meet


and convene promptly and expeditiously in
good faith for the purpose of negotiating an
agreement with respect to wages, hours of
work and all other terms and conditions of
employment including proposals for adjusting
any grievances or questions arising under
such agreement and executing a contract

incorporating such agreements if requested by


either party but such duty does not compel any
party to agree to a proposal or to make any
concession. (Art.252)

General Rule: No court or administrative


agency or official shall have the power to set
or fix wages, rates of pay, hours of work or
other terms and conditions of employment
except as otherwise provided under the Labor
Code.

Purpose:

to

encourage

a truly

democratic

method of regulating the relations between the

employers and employees by means of


agreements freely entered into through

!mployer-employee relationship

lossession of the status of majority


Gpresentation bY the employees'
representative in accordance with any of
the means of selection or designation
provided for bY the Labor Code;

3. itr:oof of majority representation


(Certification of the BLR that the

representative of the employees is the


sole and exclusive bargaining age1t

4.

having won in a bertification election); and


Demand to bargain under Article 250[a] ot
the Labor Code (Kiok Loy v. NLRC, No. L54334, January 22, 1986)'

Note: Where a majority representative has


been designated, it is an ULP for the

the majoritY rePresentative.

Collective Bargaining Agreement (CBA) - a


contract executed upon request of either the

or the

exclusive bargaining
repiesentative of the employees, incorporating
the agreement, reached after negotiations with
respect to:
1. Wages;
Hours of worK and
other terms and conditions of
employment in a bargaining unit, including
employer

2.
3. All

proposals for adjusting any grievance or


question under such agreement. (Davaa

Integrated Port Stevedoring Services v'


Abarquez, GR no. 102132, March 19,

1993) (i.e. mandatory provisions for

grievances and arbitraflon machineries)

Zipper Clause - a stipulation in a


iniibating that issues that could have
negotiated

liio;1.

1. National Wages and Productivity


Commission and Regional Tripartite

2.

.CBA
b-e-e1

ined in the CBA

collective bargaining.

Exceptions.'

of

collective
as refusal
bargaining, to deal and negotiate with the
minority representative to the exclusion of

employer,

iu

fil:.":: i.l, ,l:,

r^!Le*a#l$*ly-?-

n'

Wages and Productivity Board- as to wage


fixing (Arfs. 99 and 122)
National Conciliation and Mediation Board
National Labor Relations
and

the

Commission- as to wage distortions (Arf.

3.

124)

Secretary of Labor and Employment and

of the Philippines- as

to
President
certification and assumption powers over
labor disputes (Art. 263[g])

100

may
be

Sen Gcts @ollegt d LEto


2011 CENTRALIZED BAR OPERATIONS

5. lf not resolved,

the parties may go

to

where they want and gesort to any other


laMul means (either to settle the dispute
or submit it to a voluntary arbitrator).

to other matters, he is free to bargain or not to


bargain.

ART. 252: MEANING OF DUry

TO

BARGAIN COLLECTIVELY
Note: During the conciliation proceeding in

the Board, the parties are prohibited from

Where NO CBA Exists

doing any act which may disrupt or impede

The performance of a mutual obtigation:

the early settlement of the disputes (Art.

1. To MEET AND CONVENE

promptly and
expeditiously in good faith for the purpose
of negotiating an agreement with respect

250[d] LC\.

to wages, hours of work and all other


terms and conditions of employment

Kinds of Bargaining
1. Single Enterprise bargaining - involves
negotiation between one certified labor

2.

including proposals for adjusting any


or questions arising under

grievances

union and one employer"

Multi-employer

bargaining

involves

negotiation between and among several

such agreement, and

EXECUTE A

2. To

incorporating

labor unions and employers.

such

CONTRACT
if

agreements

requested by either party.

Stages in the Negotiation for a Collective


Bargai ning Agreement (PreNEP-RRAI)
1. Preliminary Process - written notice for
negotiation which must be clear and

2.
3.

4.

unequivocal.
Negotiatidn Process.

!.xecution Process

signing

agreement.

lublication for at least

of

Limitations

1.

b.
c.
2.

7.
8.

Make room for "take

not

it or leave it"

posture.

The parties cannot stipulate terms

and

ratification.

conditions of employment which are below


the minimum requirements prescribed by

workers in the bargaining unit represented


in the negotiation (not necessary in case

law.

5. latification by the majority of all the

6.

to bargain collectively does

compel any party to:


a" Agree to a proposal;
Make a concession; or

the

days before

The duty

of arbitral award)
Registration Process.
requisites for registration:
mandatory provisions;
payment ofP 1,000;
5 copies of CBA; and
proof of ratification.
Administration Process - the CBA shall be
jointly administered by the management
and the bargaining agent for a period of 5

a.
b.
c.
d.
e.

years.

Where CBA Exists (See lVofes under Art.

28)
Note: Collective bargaining does not end with
the execution of the agreement. lt is a
continuous process. The duty to bargain
imposes on the parties during the term of their
agreement the mutual obligation to meet and
confer promptly and expeditiously and in good

faith for the purpose of adjusting any


grievances or question arising under such
agreement

v.

ClR,

lnterpretation and Application Process.

Mandatory Provisions of the CBA

1.

Wages;

2. Hours of work;
3. Grievancemachinery;
4. Voluntary arbitration;
5 Family planning;
6. Rates of pay; and
7. Mutual observance clause.

1.

2.
2

ln addition, the Bureau requires that the CBA


should include a clear statement of the terms

which

of the CBA.

longer
be

Noie: Employer's duty to bargain is limited to

asa

MANDATORY BARGAINING SUBJECTS: as

Bargain
Code; Silva

brJt

Collective

i 261, Labor
scRA 159).

101

LABOR LAW

LABOR RELATIONS

Do NOT Justify
Refusalto Bargain
An emptoyer has been held not guilty of
refusal to bargain by adamantly rejecting the
union's economic demands where he is
OPERATING at a loss, on a low profit margin,
or in a depressed industry, as long as he
continues to negotiate. But financial hardship
constitutes no excuse for refusing to bargain

mandatory subject, Party B may complain


that Party A's posture is just an excuse to

Economic Exigencies

avoid bargaining on the

committing ULP.

collectively.

Note: What the rule forbids is the posture


of making settlement of a non-mandatory

Acts NOT Deemed Refusalto Bargain

of an adamant bargaining
2. Refusal to bargain over demands for
commission of ULP;
3. Refusal to bargain during period of illegal
strike;
4. There is no request for bargaining;
5. Union seeks recognition for an
inappropriatelY large unit;
6. Union seeks to represent some persons
who are excluded from the Code;
7. The rank-and-file unit includes
supervisors;
8. The demand for recognition and
bargaining is made within the Year
1.

subject a pre-condition to the discussion or


settlement of a mandatory subject.

Adoption

position in good faith;

following a certification election in which

the clear choice wa$ "no union" and no ad


interim significant change has taken place
in the unit; and

9. The

Deadlock

Deadlock or

lmpasse

1.

Over a MANDATORY.SUBJECT - party


may insist on bargaining and will not be
construed as bargaining in bad faith.

.Reason: Duty to bargain requires meeting

and convening on the terms and


conditions

of employment but does not


to the other party's

require assent

synonymous with impasse or a


bl

e eff ort

at good faith bargaining but despite noble


intentions does not conclude an agreement
between the parties.

case of a deadlock in the renegotiation of


the
following

ln

the CBA, the parties may exercise

1.

Calf upon the Natibnal Conciliation and


Mediation Board (NCMB) to intervene for
the purpose of conducting conciliation
preventive mediation;

2. Refer the matter for voluntary arbitration or


compulsory arbitration;
3. Declare a strike or lockout upon
compliance of the legal requirements. This
is the remedy of last resort.

union makes unlawful bargaining

to the Point of

standstill wh ich presu pposes reasona

demands.

Bargaining

mandatory,

essential subjects of bargaining; thus,


Party B can charge that PartY A is
bargaining in bad faith or is evading
bargaining on terms and conditions of
employment - in short, PartY A is

ART.253: DUTY TO BARGAIN


COLLECTIVELY WHEN THERE EXISTS A
COLLECTIVE BARGAINING AGREEMENT
General Rule: When thbre is an existing CBA,
the duty to bargain collectively shall also mean
that neither party shall TERMINATE nor
MODIFY such agreement during its lifetime. lt
is the duty of
1. Keep

proposals.

andffiffiffif,t|"&

2.- Over a NON-MANDATORY SUBJECT

party may not insist on bargaining to the

point of impasse, otherwise, he will be


construed as bargaining in bad faith.

Example: The employels insistence that

the union should change its negotiator


before bargaining can proceed to the
employees' wage and benefits is an
instance of bad faith bargaining because
the composition of the negotiating panel is

4ft.

not a mandatory subject of bargaining.

effecti

Hence, if Party A insists on first settling a


non-mandatory subject before tackling a

102

remaln
the
parties as

reached by

Sun Getrs 6ollege of A"Eb


2O1T CENTRALIZED BAR OPERATIONS

What may be done during the 60day


freedom period

1.

A labor union MAY DISAFFILIATE FROM


THE MOTHER UNION to form a local or
independent union only during the 60-day
freedom period immediately preceding the
expiration of the CBA. (Take note of the
limitation - see discussions on registration

2.

of labor unions.)

Either party can serye a written notice to

TERMINATE

OR MODIFY

THE
AGREEMENT at least 60 days prior to its

expiration period. (on re-negotiable,/nonrepresentational as-pecf of the CBA

see discusstbn on Art. 253.)


PETITION FOR CERTIFICATION
ELECTION may be filed.

3. A

Absorption doctrine- Otherwise known as


Accretion Doetrine; applies when there is
absorption and integration by one entity of one
or more establishments having the same kind
and line of business having their respective
col ective barga r.r ing agreements with different
labor unions existing therein. Example is when
one company is sold to another; in which case,
the duty to bargain which originally devolves
upon the selling pafty is transferred to the
buying entity.
I

Successor-lnlnterst Doctrine - When

an

employer with an existing CBA is succeeded


by another employer, the successor-in-interest
who is a buyer in good faith has no liability to
the employees in continuing employment and
the collective bargaining agreemenf because
these contracts are in personam.
Except:
1, When the successor-in-interest expressly
assumes the obligation;
2. The sale is a device to circumvent the

3.

obligation; or
The sale or transfer is made in bad faith.

Substitutionary Doctrine - where there


occurs a shift in the employees' union
allegiance after the execution of a collective
bargaining contract with the employer, the

Consolidated, lnc. v. Employees' and Worl<ers


Union-PAFLU, No. L-24711, April3O, 1968).

Limitation as to its Application


It cannot be invoked to support the contentlon
that a newly certified collective bargaining
agent automatically assumes all the personal
undertakings of the former agent - like the "no
strike clause" in the CBA executed by the

laller (lbid).

CBA Proposed by Union may be imposed


LOCK, STOCK AND BARREL on emPloYer
who refused to negotiate a CBA: Under this
situation, the employer which violates the duty

to bargain collectively' loses its statutory right


to negotiate or renegotiate the terms and
conditions of the draft CBA proposed by the
union. Hence, the proposals of the union may
be adopted as the CBA and, consequently,
imposed on the employer, lock, stock and
barrel.

ART. 253-A: TERMS OF A COLLECTIVE


BARGATNTNG AGREEMENT (CONTRACT
BAR RULE}
Duration of

r
o

fte CBA

With respect to the representation aspect,


the same lasts for 5 YEARS.
With respect to other provisions (economic
and non-economic), the same may last for

a maximum period of 3 YEARS after the


execution of the CBA.

Note: While the parties may agree to extend


the CBA's original five-year term despite an
agreement for a CBA with a life of more than
five years, the bargaining union's exclusive
bargaining status is effective only for five years

and can be challenged within sixty (60) days


prior to the expiration of the CBA's first five

years. (F
*i"$"$'i [j],#;";trft

g *ue,x'apnn#

Es }n q,l"gdsirj

employees can change their agent (the labor


union) but the collective bargaining contract
which is still subsisting continues to bind the
employees up to its expiration date. They may,
however, bargain for the shorlening of said
expiration date.

The employees cannot revoke the

validly

executed collective bargaining contract with


their employer by the simple expedient of
changing their bargaining agent. The new
agent must respect the contract (Benguet

103

LABOR LAW
LABOR RELATIONS

Effectivity and Retroactivity

of

othet

1. lf

CBA is the VERY FIRST for

the
bargaining unit, the parties have to decide
the CBA's effectivity date.
Those made within 6 months after the date
of expiry of the CBA are subjed to
day
automatic retroaction
immediately following such date of expiry.

to the

Example: CBA expired on December 31.


New CBA concluded on March 31. The
effectivity date is January

1.

Those NOT MADE WITHIN 6 MONTHS,


the parties may agree on the date of
retroaction.

(ECONOMTC

PROVISIONS may
be renegotiated not

later than

three

ART.254: No INJUNCTION RULE


General Rule: NO temporary or permanent
injunction or restraining order in any case
involving or growing out of labor dispufes shall
be issued by any court or other entity.

Exception: As otherwise provided in Articles


218 {Powers of the Commission/NlRC) and
264 (Prohibfted Activities) of this Code.

This rule applies ONLY

if there is

an

existing agreement. lf there is no existing


agreement, there is no retroactive effect
because the date agreed upon shall be the
start of the period of agreement.

Note: Arflcle 259A on retroaction does


not apply if the provisions were imposed
by the Secretary of Labor by virtue of
arbitration. lt applies only if the agreement
was voluntaily made by the pafties.

The notice of Representation


intention to aspect of the
terminate, amend CBA shall be
or alter the for a term of
provisions of the fle (5) A
CBA shall be filed petition for
within the

holding
cedification
election

non-representation
aspect

Economic Provisions of the CBA

60-day

period, immediately

certification
elec-tion may be

prior to the entertained and


expiration of the a certification
CBA.
election may be
The economic conducted
provbions,
within the 60however, may be day
period
renegotiated not immediately
later than three (3) prior to the
years. Those expiration of
economic

provisions entered

Rationale: lnjundion contradicts the

constitutional preference for voluntary modes


of dispute settlement.

to issue
injunctions or restraining orders
1. NLRC or any division. (Att. 218)
2 President. ln case of labor dispute in
industries which are indispensible to
national interest. (Att. 263)
3. Secretary. ln case of labor dispute in
industries which are indispensible to
The following are authorized

national interest,

the

Secretary may
the dispute or

assume jurisdiction over

certify the same to the Commission for


compulsory arbitration, Such assumption
or certification shall have the effect of
automatically enjoining the intended or
impending strike. lf one.has already taken
place, all striking or locked out employees

shall immediately return to work and the

employer shall immediately re-admit


employees and resume operations.

Rub-S "&fu

dbffi,ffi*irts are

the CBA.

within 6 months
from the expiry of
their term as fixed

in the CBA

shall

retroact to the day


immediately
following such date,
if beyond 6 months
the efiectivity is by
agreement of the

{9,

Note:
parties

court

third
secure a
their
L-25171,

144

Sun G&e @oltege of lteto


2OT 1 CENTRALIZED BAR OPERATIONS

August 17, 1967). (See nofes under Afts. 263


and 264).

3.

255: EXCLUSIVE BARGAINING


REPRESENTATION AND WORKER'S
PARTICIPATION IN POLICY AND

ARTS. 256-259: PETITION

DECISION-MAKING

Bargaining Unit - a group of employees of a


given employer, comprised of all or less than
all the entire body of the employees, which,
consistent with equity to the employer, indicate

ART.

Extent of the Workers' Right to Participate


ln Policy and Decision-Making Processes

Such right refers ONLY

to

pafticipation

in

grievance procedures and voluntary modes of

Achieve increased productivity

(R.A.

6971).

FOR

CERTIFICATION ELECTION

to be best suited to serve the reciprocal rights


and duties of the parties under the coilective
bargaining provision of the law.

settling disputes and NOT to formulation of


corporate programs and policies.

Bargaining Unit v. Union

Note: An employer may solicit

questions,

suggestions and complaints from employees


even though the employees are represented

The voters are the


CBU, whether
union or non-union
members (Arfs,
255 and 256).

by a union, provided:

1.

2.

The collective bargaining representative


executes an agreement waiving the right
to be present on any occasion when
employee qrievances are being adjusted
by the employer; and

Employer acts strictly within the terms of


this waiver agreement.

One-Union, One4ompany Policy - the


proliferation of unions in an employer unit is

The voters are the


CBU, notjr.rstthe
union members

discouraged as a matter of policy unless there

are compelling reasons which would deny a


certain class of employees the right to self-

organization

for

purposes

of

collective

bargaining.

Exceptions:
1. Supervisory employees who are allowed
to form their own unions apart from the

2.

rank-and-file employees; and

The policy should yield to the right of


employees to form unions for purposes not
contrary to law, self-organization and to
collective bargaining
negotiations.
Two companies cannot be treated into

{Att.2s1).

Certification Year

refers

to the period

wherein collective bargaining should begin,

is within 12 months following the


determination and certification of employees

which

exclusive bargai

ni

ng representative.

Four Factors in Determining the


Appropriate Bargaining Unit (G-CHE) (Sfa.

enter into
a.

a single bargaining unit even if their

b.

businesses are related.

Subsidiaries or corporations formed


out of former divisions of a mother
company following a reorganization
may constitute a separate bargaining
unit.

Labor Management Council - deals with the


employer on matters affecting the employee's
rights, benefits and welfare.
Purposes are to'.
Promote gainful employment;
lmprove working conditions; and

1.
2.

105

LABOR LAW
LABOR RELATIONS

.
.

3.

Seasonal; and
Probationaryemployee.

Things

to

Gonsider

ln Determining

3.

determining earnings;
Similarity in employment benefits, hours of
work and other terms and conditions of
employment;
Similarity in the kinds of work performed;

4.

Similarity in the qualifications, skills and


training of the employees;

5.
A
7.
8.
9.

of

4.

'

conciliation

5.

or

arbitration

or

lockout to which an
or certified bargaining

agent is a PartY.
ln case of an organized establishment,

failure

to

submit the 25% suPPort

B. Consent Election -

voluntarily agreed
upon by the parties with or without the
intervention of DOLE.

Note: Cerflfcation election and consent


election are separate and distind from

exclusive bargaining agent of the


employees in an appropriate bargaining

each other.

unit, for purposes of collective bargaining


(employees in the 3 payroll period prior to
the certification election may vote).

Certification v. Consent Election

Certification Election Not Necessary

To

when:
1. Employer voluntarily recognizes the

agent of all
employees in

said union; and


Employees designate the union as the
bargaini ng representative.

Nature

determine the sole To determine the issue ot


and exclusive bargaining majority representation of
the
an

all the workers in the


appropriate collective

appropriate bargaining bargaining unit mainlY for


purpose of
unit for the purpose of the
collective bargaining.

determining the
administrator of the CBA
when the contracting

is NOT A

unlon suffered massive

LITIGATION but merely an investigation of


a. non-adversarial fact-finding character in
which the Bureau of Labor Relations plays
the part of a disinterested investigator
seeking merely to ascertain the desires of

the purpose of
determining the
bargaining agent for
of collective

certification election

disaffiliation but not for

fhe employees as to the matter of their

representation. (Airline Pilots Assn. of the


Philippines v. ClR, 76 SCRA 274)

Grounds for Dismissal of the Petition


for Certification Election (D.O. /rc-N)
1. Petitioner is not iisfed in the
. depaftment's registry of legitimate

labor unions or that its

legal

personality has been revoked or

2.

cancelled with finality.

Petition was filed before or after the


fteedom period of a duly registered
CBA; provided that the 60day period
based on the original CBA shall NOT

be affected by any amendment,


extension, or renewal of the CBA.

106

had

requirement for the filing of the petition


for certif ication el ecti on.

Certification Election - the process of


determining by secret ballot the sole and

2.

or

become the subject of a valid notice of

incumbent

Methods to Determine Bargaining Unit

A.

thereof is pending.
A duly certified union has commenced
and sustained negotiations with the
employer or there exists a bargaining
deadlock which had been submitted to

strike

or

interchange
contract
Frequency
among the employees;
Common supervision and determination of
labor-relations policy;
History of previous collective bargaining;
Desires of the affected employees; and
Extent of union organization.

entry of

valid certification, consent, or run-off


election and no appeal on the results

the

Community of lnterest Doctrine


1. Similarity in the scale and manner of

2.

fled within 1 year from


voluntary recognition or a

Petition was

lu

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Eebn @ollege of ltflto

2011 CENTRALIZED BAR OPERATIONS


Summary of the Procedure in Voluntary
Recognition (D. O. 40-03)
1. When and Where to file: 30 days from
such recognition, employer and union shall

submit a notice of voluntary'recognition


with the Regional Office which issued the

recognized labor union's certificate of


registration or certificate of creation of a

2.

chartered local.

Requirements: Original and

duplicate

copies of:

a. Joint statement under oath


b.

of
voluntary recognition;
Certificate of posting of joint statement
for 15 consecutive days in at least 2
the
conspicuous
establishment of the bargaining unit;

places in

c.
d.

Approximate number of employees in


the bargaining unit and the names of
those who supported the recognition;
and

Statement that the labor union is the

orily legitimate labor

organization
operating within the bargaining unit.
All accomplnying documents of the notice
for voluntary recognition shall be certified
under oath by the employer representative
and president of the recognized labor

3.

union.

Action on the notice by the Regional


Office, through the Labor Relations
Division, within 10 days from receipt of the

4.

notice of voluntary recognition. lf there is


insufficiency of requirements, it must be
complied with within 10 days from notice,
otherwise, it shall be dismissed without
prejudice to its re-submission.

Effect: bars the filing of a petition for


certification election by any labor
organization for a period of 1 year from

date of entry of voluntary recognition.

Effect

of

Voluntary Recognition by the

Employer

Through voluntary recognition

by

the
employer, the labor organization is recognized
by the employer as the exclusive bargaining
agent which may collectively bargain with such
employer.

##{i',&
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LABOR LAW
LABOR RELATIONS
Distinctions
Purpose is

to determine the sole and Requires a petition for certification


of all the election filed by a union or employer. A

exclusive bargaining agent

employees in an appropriate bargaining Med-Arbiter grants the petition and an

unit for the purpose

of

collective election officer

is

Regional Director

bargaining

designated by the
to superv'tse the

election

Nde:

Med-Arbiter maY determine if

there is employer-employee relationship


and if the voters are eligible.

Purpose is to determine the issue of Held by agreement of the unions with or


majority representation of all the without the participation of the Medworkers in the appropriate collective Arbiter
bargaining unit mainly for the purpose
of determining the administrator of the

CBA when the contracting

union

suffered massive disaffiliation and NOT

for the purpose of


bargaining agent

determining the

for

Purposes of

collective bargaining

Takes place between the unions who


received the two highest number of
votes in a certification election with
three (3) or more choices, where not
one of the unions obtained the majorfu
of the valid votes cast, provided that the

total union votes is at least 50% of the


votes

cat

Takes place in two instances:


if one choice receives a pluraltty of vote
and the remaining choices results in a
tie; or
if all choices received the same number
of votes.

ln both instances, the NO UNION


also a choice.

Certification Election ln an

r
r

Upon the filing of a verified petition by a legitimate


labor organization including a national union or
federation which has already issued a charter
certificate to its local chapter participating in the

certification election or a local cfrapter which has


been bsued a charter certificate by the national
union or federation, questioning the majority status
of the incumbent bargaining agent within the 60day freedom period before the expiration of a CBA.

The petition must be supported by the writen


consent of at least 25o/o sl all the employees in the
appropriate bargaining unit.

The employer cannot file a petition for certification

election; only a legitimate labor organization,


national union or federation which has already
'ssued a charter certilrcate to its local chapter

participating in the certifpation election or a local


chapter which has been issued a charter certificate
by the national union or federation can file such

108

is

Ser&ebu

@ollt;ge

dj[.m

2011 CENTRALIZED BAR OPERATIONS

1.
2.

\Men there is a CBA, the labor oroanization can


flle a petition for certification election within the 60
day freedom period (CONIMCT-BAR RUL$

When there

is no

CBA, then the

subject however to the ONE-E

labor

organization can file a petition for certification


election at any time, subject to the DEADLOCK
BAR RULE.

Requisites before

a Labor Union can be

Declared a Winner (Double Majority RuleJ

1. Majority of the eligible voters cast their


. votes;AND
2. Majority of the valid votes cast is for such

shall not be considered a party thereto with a


concomitant right to oppose a petition for
ceftificati on election.

The

employer's participation

in

such

proceedings shall be limited to:

union.

How to Determine the Double Majority Rule


1. ln determining the eligible votes cast (Frrsf
M ajority), include spoiled ballots.

1. Being notified or informed of petitions of


such nature; and
2. Submitting the list of employees during the

pre-election conference should the Med-

2. ln

determining valid votes (Second


Majority), eliminate spoiled ballots but
include challenged votes.

Arbiter act favorably on the petition.

Rules Which Prevent the Holding

of

Certification Election
Run-Off Election

run-off electlon is proper if the following


conditions exist, namely:
Valid Election took place because majority
of the Collective Bargaining Unit members
voted fFirst Majorityl ;
2. The said election presented at least fhree
choices (e.9., Union Ane, Union Two, and
No Union);

1.

Note: "No Union' shall not be a choice in


the run-off election.

3.
4.
5.

Not one of the choices obtained the


majority (50%+1-second majority) of the
valid votes cast;

The tofal votes for the unions is af /easf

Contract - Bar Rule


While a valid and registered CBA of a fixed
duration is subsisting, the BLR is not allowed
to hold an election contesting the majority
status of the incumbent union during the five
year term of the CBA except during the 60-day
period immediately prior to the expiration of
the CBA.

Requirements in order to invoke ContractBar Rule:


1. Agreement is in writing and signed by all

2.
3.

50% ol the votes cast;

There is no unresolved challenged votes


or election protest which if sustained can
materially alter the results; and

6. The two choices

which garnered the

4.
5.
o_

contracting parties;
lt must contain the ferms and conditions of
employment;
an appropriate
Covered employees
bargaining unit;
It is for a reasonable period or duration;
It must be ratif,ed',
and
It must
Rule or

in

highest votes will be voted and the one

which garners the highest number of votes


will be declared the winner provided they
get the majority votes of the total votes
cast.

Who Participates in the Run-Off Election:


The unions receiving the highest and second
highest number of votes cast.

ART. 258-A: EMPLOYER AS BYSTANDER


{New Provision inserted by R.A.94811

ln all

cases, whether the petition for


certification election is filed by an employer or
a legitimate labor organization, the employer

The

agreement
the following

109

LABOR LAW
LABOR RELATIONS

1. The CBA is unregistered,

i.e. not certified

by the BLR or not registered by

2.

3.

the

RegionalOffice.
The CBA is inadequate or incomplete, l.e.,
it does not contain all the substantial

Negotiation Bar Rule

becomes a sweetheart contract.


PREMATURE
DOCTRINE
the CBA was hastily
EXTENSION
entered into, i.e., the renewal or extension

entertained if, before the filing of the petition


for certification election, the duly recognized or
certified union has commenced negotiations
with the employer in accordance with Arf. 250

of the

OF

agreement

was

premature,

proper time.

of

4.

Withdrawal

5.

contracting union brought about by schism


or mass disaffiliation.
Contract where
identity
the
representative is in doubt (ALU v. Ferrer-

affiliation

the

from the

of

Calleja, GR No, 85085, November

7.

6,

of the Labor Code.

Certification Year Rule

No petition for certification election may be


filed wiihin one year from the date of a valid
certification, consent, or run-off election or
from the date of voluntary recognition.

Examples of Bad Faith Bargaining

1. Surface Bargaining - occurs when


employer constantly changes its positions

CBA entered into between the employer


and the union during the pendency for
certification election (Vassar lndustries
Employees Union v. E*rella, GR No.
46562, March 31, 1978).
CBA concluded between the employer and

another union and said CBA can be


renegotiated at the option of the new
bargaining agent (AfU v. Hon. Noriel, No.

9.

A petition for certification election cannot be

1989)

the union (incumbent bargaining agent) is


not a bar to a certification election filed by

8.

notice of strike or lockout.

demands on terms and conditions and


leaves out matters which should have
been stipulated, where the stipulation

frustrating the right of the employees to


petition for a certification election at the

6.

lndications of a Genuine Deadlock


1. The submission of the deadlock to a third
party conciliator or arbitrato[ and
2. The deadlock is the subject of a valid

L-48367, January 16, 1979).


A CBA registered with falsified supporting
documents (Sec. 5[b], Rule XVI, Book V,
Rules lmplementing the Labor Code).

CBA was concluded in violation of an


order enjoining the parties from entering
into a CBA untilthe issue of representation
is resolved; and

2.

over the agreement.


Boulwarism - occurs:

a.

When the employer directly bargains


with the employee disregarding the

b.

The aim was to deal with the union


through the employees, rather than

c.

union.

with the employees through the union.

its proposals and


a 'take it or leave it" stand.

Employer submits

adopts

This is not negotiation because the


Take it or leave if" stand implies
threat.
TITLE SEVEN.A. GRIEVANCE MACHINERY
AND VOLUNTARY ARBITRATION (As

lncorporated by R.A. 67151


ART. 260: GRIEVANCE MACHINERY AND

10. Petition is filed during the 60-day freedom


period.

Deadlock Bar Rule

A petition for certification election cannot

be

entertained if, before the filing of the petition


for certification election, a bargaining deadlock
to which an incumbent or certified bargaining

agent

is a party, had been submitted

to

conciliation or arbitration or had become the


subject of a valid notice of strike or lockout.
any

Deadlock - arises when there is an impasse,


which presupposes reasonable effort at good

faith

bargaining which, despite

the

nobte

intentions, did not conclude in an agreement


between the parties.

Nature of

110

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2011 CENTRALIZED BAR OPERATIONS


agreement can be registered in the absence of
such procedure.

binding on

the larger

corporation, where

relevant similarity and continuity of operations


across the change in ownership is evidenced

collective bargaining intended

by the wholesale transfer of smaller


corporation's employees to the larger

industrial peace.

ART. 261: JURISDICTION OF VOLUNTARY

Note: Waiver of grievance machinery


procedure does not amount to a

VOLUNTARY ARBITRATORS'

It is a part of the continuous process

of

to promote a
friendly dialogue between labor and
management as a means of maintaining

relinquishment of employee's right to avail of


voluntary arbitration (Apalisok v. RPN, May 29,
200s).

Voluntary

corporation's plant.

ARBITRATORS

1.

2.

contractual
proceedings where parties to a dispute select
a judge of their own choice and by consent
for
submit their controversy
determination.

application

Although the provision mentions "parties to a


collective bargaining agreement,' it does not
mean that a grievance machinery cannot be
set up in a CBA-less enterprise. ln any work
place where grievance can arise, a grievance

machinery (regardless

of

name) can

be

established.

Arbitration may be initiated by:

1.

2.

Submission Agreement - where the parties


define the disputes to be resolved; or
Demand or Notice invoking a collective
agreement arbitration clause.

contract,

or

and

alleged

risdiction of Voluntary Arbitrators

Exclusive Original Jurisdictiop Conferred


by Law

1. All grievances arising from the


interpretation or implementation of the

2.

3.
4.

CBA;

Those arising from the interpretation or

enforcement

of

company

Personnel

policies;

Hear and decide wage distortion issues

arising from the application of any wage


orders in organized establishments, and
Unresolved grievances arising from the

interpretation and implementation of the


productivity incentive programs under R.A'

ln a unionized company, Att. 255 allows an


employee whether union member or not, to
raise a grievance directly to the employer.

of the

violation of its provisions.


Ju

referred to voluntary arbitration prescribed in

Contract-negotiation disputes - disputes as


to terms of CBA.
Contract-interpretation disputes - disputes
arising under an existing CBA, involving

such matters as the interpretation

to him

the CBA.

OF

Arbitrable Disputes

Arbitration

Note: All grievances not settled within 7 days


from the date of its submission to the
grievance machinery shall automatically be

OR PANEL

6071.

Note: lt is the Labor Arbiter and not the


grievance machinery which has jurisdiction
over dismissals pursuant to the union security
clause.

Distinguished From Mediation

med-iator is a disinterested 3'd party who


helps settle disputes involving terms and
conditions of a CBA. He is assigned and paid

ref

by the State and is not selected by the parties.

He renders no final and binding decision, but


merely suggests soluti ons.

Efiect of Merger and Consolidation:

fry
il *s

lloctine

toa
the
which

that a duty to arbitrate arising from a


co*edlve bargaining agreement survives the
employe/s ceasing to do business as a

separate entity atter its merger with a


substantially large corporation, so as to be

111

.LABOR LAW
LABOR RELATIONS

4.
5.

Distinctions among a Voluntary Arbitrator,


Mediator, and a Court of Law

Certiorari Applicable

accredited
the Board

by
as
a
person named
or designated in

such or

voluntary arbitrator is a "quasi-judicial"


I. B.P. 129, as amended
by R.A. 7902). lts decisions are therefore
appealable to CA under Rule 43 of the Rules
of Court. Hence, a petition for certiorari under
Rule 65 of the Rules of Court will lie ONLY
where a grave abuse of discretion or an act
without or in excess of jurisdiction of the
voluntary arbitrator is shown, which may be

disinterested Regular courts.


party, usually a
government
employee who
helps in settling
disputes

instrumentality (Sec.

the CBA by the involving terms


parties to act as and conditions

their

Voluntary of a CBA and is


Arbitrator or one NOT selected

chosen with or by

the

Erroneous interpretation of the law; and


Denial ot gubstantialjustice.

parties,

filed with the Court of Appeals.

without the but is usually


assistarce of assigned and
the NCMB, paid by the
pursuant to a State.

TITLE EIGHT. STRIKES AND LOCKOUTS


AND FOREIGN INVOLVEMENT IN TRADE

selection
procedure

UNION ACTIVITIES

agreed upon in
the CBA, or any

CHAPTER I. STRIKES AND LOCKOUTS

official

ART.

authorized

by
of
act as

the Sec.
Labor to

Arbitrator upon

others.

written request
and agreement

Strike - any temporary stoppage of work by


the concerted action of employees as a resulf

labor dispute.

A mediator
renders no final
and binding

lnformal
proceedings;

Arbitrator

decision

determines

and

Rules

of

Rules
Evidence

and the

merely

on

admissible
evidence.

suggesb

apply.

solutions.

of an industial or labor dispute.

Formal
proceedings,

what

Court

He

suggests that
parties submit
the issue to an
arbitrator.

Arbitators are
not obliged to
follow

precedents set

Judges are
required to
observe

regardless of whether or hot the disputants


stand in the proximate relation of employers
and employees (Gold City lntegrated Poft
Seruice, lnc. v. NLRC,245 SCRA 627).

stare

declsrs.

$3$oitions

in

similar cases.

Appeal b to the

CA under Rule
43 of the Rules
of Court.

Appeal is

JudicialReview
Grounds: {JADES)
Lack of iurisdidion;

2. Grave qbuse of discretion;


3. Violation of due process;

to

higher court
under the Rules
of Court and
8.P.129.

Ltz

or the association or
of persons in negotiations,
fixing, maintaining, changing or arranging the
terms and conditions of employment,
employment

other

arbitrations

1.

Labor dispute - includes any controversy or


maitter concerning terms or conditions of
representation

usually

by

STRIKES, PICKETING AND

Concertbd Activity - one undertaken by two


or more employees or by one on behalf of the

Voluntary

of parties to

263:

LOCKOUTS

iF

t^;r'i

$ln Sels

@ollege of

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2011 CE}ITRALIZED BAR OPERATIONS


Moreover, the right to peaceful picketing
should be exercised by the workers with
due respect for the rights of others. Hence,
commission by any picketing employee of

Law may prohibit strike but not the right to


self-organization. A law may be passed
prohibiting selected sectors of labor from
resorting to strikes. However, a lanr cannot be
passed prohibiting selected sectors of labor
from organizing unions.

any act of violence, coercion or


intimidation

Lockout - means the temporary refusal of an


to furnish work as a result of an

employer

industrial or labor dispute.

Note: Strike and lockout are similar in the


sense that they connote temporary stoppage
of work. The difference is that sfrike is done by
employees or labor unian while lockout is dane
by the employer.

Boycott - an attempt, by arousing a fear of


loss, to coerce others, against their will to
withhold from one denominated "unfriendly to
labof their beneficial business intercourse.

Stowdown - a method by which one's


employees, without seeking a complete
stoppage of Wor( retard production and
distribution in an effort to compel compliance
the employer with the labor demands made
upon him.
by

Picketing - act of marching to and fro the


employer's premises, usually accompanied by
the display of placards and other signs making
known the facts involved in a labor dispute.

This is an exercise of one's freedom

of

is

prohibited.

Similarly,

stationary picket and the use of means like


placing of objects to constitute permanent
blockade or to effectively close points of
entry or exit in company premises are
likewise not allowed bY law.

- any person who obstructs,


impedes or interferes by force, violence,
coercion, threats or intimidation with any
peaceful picketing by employees during any
labor controversy affecting wages, hour' or
conditions of work or in the exercise of the
right to self-organization or collective

Strike-Breaker

bargaining.

Strike Area - the establishment, warehouse,


depols, plants or offices, including the sites or

premises used as runaway shops of the


employer struck against, as well as the
immediate vicinity actually used by picketing

strikers in moving to and fro before all points of


entrance to and exit from said establishment. lt
also includes the area immediately before the
points of entrance and exit of establishment

struck against. However, the ingress to and


egress from the establishment struck against

are not part of the strike are, and may not be


blocked nor picketed.

speech.

Article 264(e) of the Labor Code prohibits

any person engaged in picketing from


obstructing the free ingress to and egress
from the employer's premises (Jackbilt
lndustries, Inc. Vs. Jackbilt Employees
Workers Union-Naflu-KMU, G.R. No1 71

61 8-1

I,

Types of Strikes
1. Economic strikes - used to secure the
economic demands such as higher wages
and better working conditions for the

2.

workers.

ULP strike

protest against ULP of

management.

March 1 3, 2ffi9.)

Note: The picketing of a private home in a

residential district is generally held


improper, even when the picketers are
domestic servants. This is on the grounds

that "a home is not an industrial or

business enterprise, that it is not acquired


or maintained for pecuniary gain or profit,
but rather, that it is an institution used and
maintained as a place of abode, and that

an enterprise not conducted as means of


livelihood, or for profit, does not come
within the ordinary rneaning of such terms
as'business','trade', or'industry'. $tate v.
Cooper, 205 Minn. 333, 285 N.W. 943,
122

A.LR.77)

113

LABOR LAW
LABOR RELATIONS

lllegal: Fails

to

comply with certain

Economic v. Political Stike

requirements of the law, to wit: notice of


strike, vote, and report on strike vote.

Sympathetic Strikes - work stoppages of


workers of one company to make common
cruse with other strikers
other
companies, without demands or

of

grievances

of their c^Mn against

the

voluntary strike An invofuntary strike; the


because the employee labor organization is
will declare a strike to forced to go on strike
compel management to because of the ULP
grant its demands.

employer.

act of self-defense since


the employees are being
pushed to the wall and
their only remedy is to
stage a stike.

lllegal: Because there is no labor dispute


between the workers who are joining the
strikers and the latter's employer.
4.

Primary

Strike

refers

to a

strike

conducted by the workers against their


directly affecting them.

The collective bargaining Either:


agent of the appropriate 1. Collective bargaining
agent; or
bargaining unit can

Legal: Because there is a labor dispute

stike.

employers involving

labor

dispute

declare

an

economic 2.

Secondary Strikes

of

- are work stoppages

workers of one company to exert


pressure on their employer so that the
latter will in turn bring pressure upon the
employer of another company with whom
another union has a labor dispute.

lllegal: because there is no labor dispute


involved. A strike can validly take place
only in the presence of and in relation to a

labor dispute between employer

and

30 days from the filing of 15 days from the filing of

strike the notice of strike


before the intended date subject to the 7-day
of actual strike subject to strike ban.
the 7-day strike ban.

No
mandatory.

- to make a

stand on certain national issues.

"Wetga ng bayan" lllegal: A "Welga ng


bayan" is illegal because it is a political
strike and therefore there is neither a
bargaining deadlock nor any ULp. lt is a

exception Cooling-off period may


be dispensed with, and

the union may take


immediate action in case
of dismissal from
employment of thelr
officers duly elected in
accordance with the
union's constitution and
byJaws, which may
consutute union
busting where the
the union

political rally.

Quickie Strikes

labor

the notice of

employee.

Cause Oriented Strikes

The legitimate

organization in behatf
of its members.

involved.
5.

commited against them


by the employer. lt is an

- brief and unannounced

temporary work stoppage.

ng

ke or
out is

Char

1.

There

Er-Ee

and the
person/s

tL4

strike is called;

Ssn EeDs

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@ollege

2011 CENTRALIZED BAR OPERATIONS

2.

a dispute between the


parties and the utilization by labor of the
weapon of concerted refusal to work as a
The exisfence of

means

of

compliance

3.

persuading

or

coercing
men's

with the working

demands;

The contention advanced by the workers

that although the work ceases,

the

employment relation is deemed to


cantinue albeit i1 a state of belligerent

4.

suspension;
There is work stoppage, which stoppage is
temporary;
The work stoppage is done through the
concerted action of the employees, and

5.
6. fhe striking group is a legitimate labor
organization,' and

deadlock,

in case of

is the

Purposes: (a) to inform the NCMB of the


jntent of the union to conduct a strike vote;
(b) give the NCMB ample time to decide on
whether or not there is a need to supervise
the conduct of the strike vote to prevent any
acts of violence or irregularities attendant
thereto; and (c) should the NCMB decide,
motu proprio or upon the request of any
interested party including the employer, to
supervise the strike vote, to give it ample
time to prepare for the deployment of the
req

4. A strike vote must

be taken where a
majority vote of the members of the union
must approve ii, obtained by secret ballot
in a meeting duly called for the purpose; or
a lockout vote must be taken where a
majority vote of the members of the Board
of Direc'tors of a corporation or association
or partners in a partnership, must approve

bargaining

employees' sole

bargaining representative.
Non-Stri keable lssues (NILAW)
(Article 263 (b); Dept. Order no.

9, Rute 12,
Sec.2)
1. Violations of CBA which are lrot gross in
character shall be resolved via the

it, obtained by secret ballot in a'meeting

5.

4.

5.

Purpose: The evident intention of the law

Labor

in requiring the strike or lockout vote report


to
mandatory requirements
reasonably regulate the right to strike or

is
lockout, which is essential to the

as

Those issues which had already been


brought to voluntary or compulsory

Procedural Requisites (GF-SARC-7)


1. lt must be based on valid and factual
ground; a strike or lockout must be based
on either

a. Collective Bargaining Deadlock


(economic)
b. Unfair Labor Practice (political)
2.

strike or lockout;

Relations [19 Oct. 1987] issued by Sec.


Drilon; see also Article 261, LC);
grbitration.
lssues involving wage distortion caused by
legislated wage orders.

A notice of strike or lockout must be filed


with NCMB-DOLE;

a.
b.

duly called for the purpose;


A strike or lockout vote geport should be
submitted to ihe NCM-DOLE at least

seven days before the intended date of

Grievance Machinery;

2. lnter-union or [ntra-union disputes;


3. tabor standards cases such as wage
orders (Guidelines governing

uisite personnel, includi ng peace officers.

attainment of legitimate policy objectives


embodied in the law.

6.
7.

Except

in cases of union

busting, the

cooling off period prescribed by law should


be fully observed

The f-day waiting period or strike ban

afier submission of strike or lockout vote to


the NCMB-DOLE should be fully observed

:;"t. I

'-l fl1;-:.p\

At least 30 days from the intended


date thereof, if the issues involved
arose from a collective bargaining
deadlock.

At least 15 days from the intended


date, if the issues raised are in the
nature of unfair labor practices.

A notice must be served to the NCMBDOLE at least 24 hours prior to the taking
of strike or lockout vote by secret balloting,
informing said office of the decision to
conduct a strike or lockout vote, and the
date, place and time thereof,

115

LABOR LAW
LABOR RELATIONS

- the constitutional precepts


of due process mandate that the other

members in addition to the coolingoff


period before actual strike.

Labor Code

party be notified of the adverse action of ,


and
Foundry Corporation v. NLRC,3?8 SCRA

Should the strike vote be taken


within or outside the cooling-off

the opposing party (Filipino Pipe

period?

68).

The law does not specify but NCMB's


Primer on Stike, Picketing and Lockout

b. Cooling-off Period before the

states that

intended date of actual strike subject


to the 7-day stiike ban.
Bargaining deadlock - 30 days
ULP - 15 days
Union Busting cooling-off

a.
b.
c.

if the strike vote is

filed

within the cgoling-off period, the 7-day

requirement "SHALL BE COUNTED


FROM THE DAY FOLLOWING THE

EXPIRATION OF THE COOLING-OFF


PERIOD.' ln effect, the 7 daYs are
added to the 15 or 30 daYs.

period NEED NOT BE


OBSERVED and the union
may take action immediately

after the strike vote

conduc;ted

and

Note: The 7-day waiting period or strike


ban applies in allcases, including union

is

results

busting. What the law comPletelY


in cases involving union

submitted to regional branch

disregards

It ls that period of time given the

NCMB to mediate and conciliate the


parties. lt is that span of time allotted
by law for the parties to settle their
disputes in a peaceful manner, before

staging a strike or lockout. lt is


reckoned from the time when the
notice of strike or lockout is filed with
the NCMB, a copy of said notice

c.

3.

Means Employed Test - a strike may be


legal at its inception but eventually be

if the strike
bY violence which

declared illegal

is
is
widespread, pervasive and adopted as a

accompanied

matter of policy and not merely violence


which is sporadic which normally occur in
a strike area. (See prohibited activities
under Art. 264.|

having been serued on the other party


concerned. Otherwise, the mere filing
of the notice with the NCMB without a
proof of valid service thereof to the
other party concerned will not trigger
the running of the cooling-off period.

compliance with any of the aforementioned


requisites renders the strike illegal.

Strike Vote - a requirement wherein


the decision to declare a strike must

Good Faith Strike Doctrine - a strike may be


considered legal where the union believed that

be:

busting is only the cooling-off period.

i.

Approved by a MAJORITY of the


TOTAL UNION MEMBERSHIP iN

the bargaining unit concerned (not

ii.

Note: The

the

3 tests must concur. Non-

company committed ULP and the

circumstances warranted such belief in good


faith, although subsequently such allegations

of ULP are found out as not true (Bacus v.

of the whole bargaining unit); and


Obtained by SECRET BALLOT in

MEETINGS OR REFERENDA
called for the purpose.

lar#ffi$xr###&cur

Purpose: to ensure that the intended


strike is a majority decision.

d.

7-Day Strike Ban - the 7-day waiting


period before the date of the purported
strike (within which the union intending

to

conduct

strike must

at

least

submit a report to the Department as

to the result of the strike vote)

intended to give the Department an


opportunity TO VERIFY whether the
projected strike really carries the
imprimatur of the majority of the union

11.5

4.E
its

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Sun Febu 6o[[ege of {.eb


2011 CENTRALIZED BAR OPERATIONS

5.

Declared

in

violation

of an

existing

injundion;

As a general rule, injunction cannot be


issued against the conduct of picketing
except:
a. Where picketing is carried out through
illegalmeans,
b. Where picketing involves the use of

c.

violence and other illegal acts


Where injunc{ion becomes necessary
to protect the rights of third parties.
Likewise injunction cannot be issued

Note: Strikes or lockouts cannot be


enjoined except when illegal acts are
committed or if the strike or lockout
appears to be illegal in nature.

6.
7.

Strike

in

violation

of

assumption or

certification order.

Contrary

to an existing agreement,

as a no strike clause or

such
conclusive

arbitration clause.

Note: The rigtlt to strike is not absolute. lt


has heretofore been held that a no-strike,
no-lockout 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 (but not ULP cases).

8.
9.

When can the Secretary of Labor Assume


Jurisdiction over a Strike
When there exists a labor dispute causing or
Iikely to cause a strike or lockout in an industry

power

The Secretary of Labor may either:


1. Assume jurisdiction and decide it, or

2.

a union

strike is illegal if
staged without giving the employer
reasonable time to consider and act on the
demands made by the union (Almeda vs.
ctR, 96 Phit 306)

Conversion Doctrine - lnvolves conversion of


strike from economic to ULP, and vice versa.
A strike or lockout may start as an economic
strike or lockout but later on, because of the

the same to the NLRC

for

' Note: A labor dispute may be-assumed

by the
Secretary or certified to the NLRC even before
the actual staging of a strike or a lockout since
Article 263 of the Labor Code does not require
the existence of the strike but only of a labor
dispute involving national interest.

Note: What constitutes'INDISPENSABLE


INDUSTRY' is based upon the discretion of
the Secretary of Labor. However, the
President of the Philippines shall not be
precluded from determining industries which in
his opinion are indispensable to the national
interest.

Effects of the Assumption of Jurisdiction


of the Secretary

1.

AUTOMATICALLY ENJOINS the inteNded


or impending strike or lockout as specified
in the assumption or certification order;
lf one has already taken place at the time
of assumption or certification, all striking or
shall
IMMEDIATELY RETURN TO WORK; ANd
The employer shall immediately resume
RE-ADMIT ALL
operations

locked-out employees

which is not

10. Premature Strike-A

Certify

compu lsory arbitration.

2.

legitimate

of

certification by the Secretary of Labor is in the


nature of a police power measure.

Strike staged by a minority union.

Strike staged by

to the natibnal interest. The


assumption of jurisdiction or

indispensable

3.

and

WORKERS under the same terms and


conditions prevailing before the strike or

lockout. *,*i*srffir;**s*u*.
the eff$b& pF

ffi*ffirynption

actuation of the parties, the same may be


converted to an unfair labor practice (ULP)
strike or loekout, or vice versa. Under this
situation, the conversion doctrine shall apply in

which case the requirements for the converted


strikellockout (to economic from ULP, or vice
versa, as the case maybe) shall be observed.
(See Consolldated Labor Assaciation of the
Phils. Vs. Marsman and Co., 11 SCRA SA9,
5e3)

for
in the
ica's
58, June

117

LABOR LAW
LABOR RELATIONS

3.

Reason: Because while out on strike, the

Secretary of Labor may subsume pending


labor cases before Labor Arbiters which
are involved in the dispute and decide
even issues falling under the exclusive
and original jtirisdiction of Labor Arbiters
such as the declaration of legality or
illegality of strike {lnt'l Pharmaceuticals v.
Sec. of Labor, GR No. 92981-8, 3January

4.

strikers are not considered to have abandoned


their employment, but rather have only ceased
from their labor.
The declaration of a strike is not a renunciation
of em pl oym ent rel ati on.

Exceptions.'

9, 19e2).

The following strikers are-NOT entitled to

Power of Secretary of Labor is plenary and


discretionary (Sf. Luke's Medical Center v.
Tones, GR No. 99395, June 29, 1993).

reinstatement:
1. Union officerswho knowingly participate in
an illegalstrike; and
Any striker/union member who knowingly
participates in the commission of illegal
acts during the strike.

2.

EntiUement to Strike Duration Pay


{

General Rule: Strikers are not entitled to their


wages during the period of a strike, EVEN lF
THE STRIKE IS LEGAL.

Note: Those union members who joined an

Reason: No work, no pay, or a fair day's wage


for a fair day's labor

act shall be reinstated but without

Remedy: A worker who absents himself from

Rules in Strikes in HosPitals

illegalstrike but have not committed any illegal

result of a strike, must seek


reimbursement of his wages from his union
which declared the strike, OR he might have
his absence from work charged against his

work as

1.

1.

for

2.

to
an effective

SKELETAL
WORKFORCE of medical and oiher health
personnel for the duration of the strike or

2.

ln case of a ULP STRIKE, in the discretion


of the authority deciding the case (See
table
more distinction between
Economic and ULP strike.)
Where the strikers VOLUNTARILY AND

lt shall be the duty of striking employees or


provide and

locking-out employer

maintain

unused vacation leaves

Exceptions:

any

backwages.

lockout.

Secretary

af

Labor may immediately

assu/ne jurisdidion within 24 hours from


knowledge of the occurrence of such strike
or lock-out or certify it to the Commission
for compulsory arbitration.

UNCONDITIONALLY OFFERED TO
RETURN TO WORK, but the employer
refused to accept the otfer {e.9. "we will
return tomorrou/' and NOT "willing to

ART. 264: PROHIBITED ACTIVITIES

retum provided).

declare a strike or lockout;

Labor Organizations

NO labor organization

br

employer shall

1. Without first having bargained collectively

Note: They are entitled to backwages from


the date the offer was made.

in accordance with Title Vll of this Book;

3. Where there is RETURN-TO-WORK


ORDER and the employees are
d i scri mi n ated ag ai

nst.

Effect They are entitled to

H P,SkR+U,
baclarvages

{"-.*\\"r'

9r

from the date of discrimination.

4.

{,}F

Where the employees did not participate in

the strike but were practically locked-out

5.

by the employer.
When reinstatement is no ionger possible.

Rule on Reinstatement of Striking Workers


General Rule: Striking employees are entitled
to reinstatement, regardless of whether or not

the strike was the


employeis ULP.

LL8

consequence

of

the

Third
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2011 CENTRALIZED BAR OPERATIONS

Sw

1. Any peaceful

picketing by employees
during any labor controversy or in the

2.

exercise of the right of self- organization or


collective bargaining; or
Shall aid or abet such obstruction or
interference.

Employers

NO employer shall use or employ any


STRIKE-BREAKER nor shall any person be
employed as a strikebreaker.

Effect ln case of non-compliance of strikers,


they may be subject to immediate disciplinary
action, including dismissal or loss of
employment status

and even

to

crirninal

prosecution. (San Juan De Dios Education


Foundation Employees union-AFW vs. San

Juan De Dios Foundation lnc, G.R. NO.


143A1, Ma 28, 2004). Moreover, the strike
becomes illegal because of the disregard of
the return-to-work order issued by the
Secretary (Union of Filipro Employees vs.
Nesf/e Phils., G.R. NO. 8871A, Dec 19, 1990)

Public Official or Employee


NO public official or employee, including
otficers and personnel of the New Armed
Forces of the Philippines or the lntegrated
National Police, or armed persons:

1.

Shall bring in, introduce or escort in any


manner, (a scab or) any individual who
seeks to replace strikers in entering or
leaving the premises of a strike area, or
work in place of the strikers,

- is an employee who refuses to


join a strike or a union member who
Scab

refuse to strike or who returns to work

Rule on Hiring of Replacements

The hiring of replacements for the strikers


during a strike is NOT an unfair labor practice
act of the employer. Such hiring may even be

done on a permanent basis in case of an


economic strike, An employer is entitled to
carry out his business. But in an unfair labor
practice strike, such replacements may not be
permanently employed. ln case of defiance of

a return-to-work

order,

or a

certification or

assumption order, a hearing is not required for

the employer to validly hire replacement for


workers who committed the defiance.

before a strike is ended or settled.

2.

The police force shall keep out of the


picket lines unless actual violence or other
criminal acts occur therein:

PROVIDED, that nothing herein shall be


interpreted to prevent any public officers
from taking any measure necessary to:

a.
b.
c.

and will be permanently barred from reentering the country without the special
permission of the President of the Philippines.
lf the act at the same time is a violation of the
Revised Penal Code, a prosecution under the

NO person engaged in picketing shall:

2.
3.

both at the discretion of the court, lf the person

so convicted is a foreigner, he shall be


subjected to immediate summary deportation

Maintain peace and order,


Protect life and property; and/or
Enforce the law and legal order.

Persons Engaged in Picketing

1.

Liability of Persons Committing Prohibited


Acts under Art- 264: Any person violating any
of the provisions of Art.264 shall be punished
by a fine of not less than P1,000.00 nor more
than P10.000.00 and/or imprisonment for not
less than 3 months nor more than 3 years or

Commit any act of violence, coercion or

Labor Code will preclude prosecution for the

,or

intimidation; or
Obstruct the free ingress to or egress from
employe/s premises
lawful
purposes; or
Obstruct public thoroughfares.

the

Rule

on

for

Defiance

of

Assumption or

Certification Order or Return-to-Work Order

pursuant thereto issued by the

DOLE

Secretary or the NLRC


the

General Rule: Non-compliance with the


assumption or certification order of the
Secretary of Labor and Employment, or a

unlon
offer,

return

iately
shall

return-to-work order issued pursuant thereto

by the Secretary of Labor or by NLRC, to


which a labor dispute is certified, is considered
an illegal act committed in the course of the
strike or lockout.

Reduced
conducted by

referendum

the purpose of

tLg

LABOR LAW
LABOR RELATIONS
determining whether or not the reduced offer
of the union is acceptable to the board of
directors, trusteeS or partners. When at least a
majority of the board of directors or trustees or
the partners holding the controlling interest in
the partnership, vote to accept the reduced
offer, the workers shall immediately return to

work and the employer shall

thereupon
readmitthem upon signing of the agreement.

1. To determine 'l . To determine whether


or not the or not the lmproved
improved offer of the
of fte UNION is
EMPLOYER is acceptable to board,

whether

acceptable to the union


members.
2. To ascertain the real

and parhers.

2. To ascertain the

sentiment of the silent majority

majority

of the union

real

of the silent

of the

union

TITLE ONE. TERMINATION OF


EMPLOYMENT

ART.279: SECURIry OF TENURE

Security of Tenure - the constitutional right


granted the employee, that the employer shall
not terminate the services of an employee
except for just cause or when authorized by
law. lt extends to regular (permanent) as well
as non-regular (temporary) employment
(Kiamco v. NLRC, GR No. 129449, June 29,
r99e)
Note: Security of tenure clause is not confined

to cases of termination of employer-employee


relationship alone. lt is also intended to shield
workers from unwarranted and unconsented
DEMOTION and TRANSFER.

members on sfike.

members on strike.

Reliefs Available to an lllegally Dismissed


On or before the 30h On or before the 30rn day
day ofthe strike.

of the

lockout.

ART. 266: ARREST AND DETENTION

General Rule: A police officer cannot arrest or

detain

a union member for

union activities

without previous consultations with the


Secretary of Labor.

2. Public peace; and


3. Commission of a crime.

Reinstatement, and/or
Payment of baclorvages.

Reinstatement - restoration of the employee


to the state from which he has been unjustly
removed or separated without loss of seniority
rights and other privileges.

What

the

following cases:
Any person who obstructs the free and
lawful ingress and egress from the
employe/s premises or who obstructs
public thoroughfares.

a.
b.

1.
2.

Forms of Reinstatement
1. Actual or Physical Reinstatement - the
employee shall be admitted back to work.
2. Payroll Reinstatement - the employee is
merely reinstated in the payroll.

Except on grounds of:


1. Nationalsecurity;

An arrest can be lawfully made in

Employee

ls the Effect of the

Reversal

of Labor

Arbiteft Decision to the Reinstated


Employee?
lf the
ter is later
that the
then

na$,*rrb;

Any person who shall have in his


possession deadly weapons in
violation of B.P. Blg. 6 and firearms
and explosives (Guidelines for the
canduct of pNp/AFp personnel in

ffitt 'to requi

Labor Disputes)
the

the
ts

for
actual

refund (
33,

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2011 CENTRALIZED BAR OPERATIONS


May

Court Order fhe Rernsfatement of a

Dismissed Employee Even lf the Prayer of the


Complaint did Not Include such Reilef?
YES. So long as there is a finding that the
employee was illegally dismissed, the court
can order the reinstatement of an employee
even if the complaint does not include a prayer
course, the
for reinstatement, unless,
right to
waived
employee

of
his

has

reinstatement. By law, an employee who is


unjustly dismissed is entitled to reinstatement,
among others. The mere fact that the
complaint did not pray for reinstatement will

not

prejudice

technicalities

of

the

employee, because
law and procedure are

frowned upon in.labor proceedings (Pheschem


tndustrial Corp. v. Moldez, GR rVo, 1161158,
May 9, 2005)

2.
J,
4.

o
7

The employee. should be given a


SUBSTANTIALLY EQUIVALENT POSITION.
lf NO substantially equivalent position is

available, reinstatement should not be ordered


because that would in effect compel the

employer to do the 1mpossible. ln such a


situation, the employee should merely be
given SEPARATION PAY consisting of one
month salary for every year of service (1'.1|.

(Grolier tnt'l tnc.


August 31, 1989)

v.

ELA, GR No. 83523,

Doctrine of Strained Relations


When the employer can no longer trust the
employee and vice-versa, or there were

of

to

each other,
bad faith
imputations
serve as a
effectively
not
could
reinstatement
remedy. This doctrine applies only to posrtrons

which require trust and confidence. (Globe


Mackay v. NLRC, GR No. 82511, March 3,

Prejudiced

Note: Under present laws and jurisprudence,

separation pay may be viewed in four ways:


ln lieu of reinstatement in illegal dismissal
cases, where the employee is ordered
not
reinstatement
reinstated

1.

but

2.

4.

there

the

reinstatement;
It will not serve a prudent purpose; and
That there is a resultant strained relations

available?

if

bY

Company

3.

happens

will be

is an order of
Reinstatement but the position is no longer

lMat

That it would be inimical to the employer's


interest;
Reinstatement may no longer be feasible;
It will not serve the best interest of the
parties involved,

is

feasible,
As employer's statutory obligation in cases
of legal termination due to authorized
causes under Arf. 283 and 2M;
As financial assistance, as an act of social
justice and even in case of legal dismissal
under

Art.282

As employment benefit granted in CBA or


company PolicY (Poqu iz, 2006)'

Backwages - the relief given to an employee


to compdnsate him for lost earnings during the
period of his dismissal. lt presupposes illegal
termination.

Note: Entitlement to backwages of the illegally


dismissed employee flows from law. Even if he
does not ask for it, it may be given' The failure
to claim backwages in the complaint for illegal
dismissal is a mere procedural lapse which

cannot defeat a right granted under


substantive law. (Sf. Michael's lnstitute v'
Santos, GR No. 145280, December

4' 2001)

How Computed
Under existing law, backrrvages is computed
from the time of the iltegat dismissal up to time
is no
of actual rei'

1e92).

Under the cit:cumstances where the


employment relationship has become so
strained to preclude a harmonious working

and that all hoPes at


nil afier reinstatement, it
would be more beneficial to accord the
relationship,

reconciliation are

employee backvrrages and separation pay.

Separation Pay ln Lieu of Reinstatement

an illegal dismissal wherein


reinstatement is ordered but cannot be carried
out as in the following cases.
Reinstatement cannot be effected in view
of the long passage of time or because of
the realities of the situation;
Proceeds from

1.

Trans

L21

LABOR LAW
LABOR RELATIONS

2. Vacation or service incentive


sick leave; and
3. 1f, month pay.

leave and

Which Takes Precedence in Conflids Arising


Between Employer" s Management Prerogative

and the Employees' Right

l,lofis Facilities such as uniforms,

shoes,

helmeF and ponchos should NOT be included


in the computation of backwages.

The employee's right to secuity of tenure.


Thus, an employer's management prerogative
includes the right to terminate the seMces of

or personal use.

Note: The award of backwages is computed


on the basis of a 30day month (JAM lrans
Co. v. Flores, GR No. L-68555, March 19,
1993).

management
employee
prerogative is limited by the Labor Code which

provides that the employer can terminate an


employee ONLY FOR A JUST CAUSE OR
WHEN AUTHORIZED BY LAW. This limitation

because no less than the Constitution


recognizes and guarantees employee's right to

is

security of tenure (Art. 279, Labar Code; Art.


XIll, Sec. 3, Constitution).

ART.

Allows the

the

same
employee
unjustly employee to recover from
dismissed to the position the employer that which
which
was he had lost by way of
removed i.e. to his status wages as a result of his
ante dismissal.
dismissal.

was

but this

the

Reason: said items are given free, to be used


only during official tour of duty not for private

Restores

to Secuity of

tenure?

he

The award of reinstatement is not inconsistent with


the award of backwages.

280:

REGULAR AND CASUAL

EMPLOYMENT

Four Kinds of Employees under Art. 280


1. Regular employment
2. Casualemployment
3. Project employment
4. Seasonal employment

Other forms of employment under Book Vl


5. Fixed-Period Employment
6. Probationary

Separation

pay

paid Backwages

is

1.

paid

when reinstatement is no the compensation


longer possible.
otherwise the
should have earned

he .not

Regular Employment

Employment arrangement where the


employee:

dismissed.

Computed on the basis of Computed from the

the employee's leng*r of of illegal dismissal

up

actual reinstatement,
if reinstatement is

service.

longer possible, until


finality of the decision.

Paid as a wherewithal

assistance during

the

period that an
us looking for

b.

perform
engaged
activities which are usually necessary
or desirable in the usual business or
trade of the employer, or
Has rendered at least one ('1) year of

service, whether such service is


continuous or broken, with respect to

the activity in which he is employed.

Paid for the loss


earnings during the
period between illegal

dismissal

employment.

to

a. Has been

been

and

reinstatement.

netwe&.parti

dtl

Hrtffi

ivity

paid in lieu of baclorages.

Monetary awards

to

illegally dismissed

OFWs

OFWs are not entitled to reliefs under Art 279


of the Labor Code. This is so because OFWs
are contractual empoyees whose rights and

obligations

are governed primarily by

Rules and Regulations of the POEA.

t22

the

at the
to the

ich

the

Sw

@ebs 0ollege of

i[.sb

2011 CENTRALIZED BAR OPERATIONS

b.

2.

Period of Service fesf-Whether or not


the employee has rendered at least
one year of service. An employee,

and

employee.

Probationary Employment lesfWhether or not he employee is


allowed to work after the lapse of the
probationary perlod. An employee who
is allowed to work after the lapse of

the

b.
.

Note: Members of a work Pool from

which a construction company draws


its project empoyees, if considered

employees

completion of the project or any phase


thereof will not mean severance of EE relationshiP.
UNLESS, the workers in the work Pool
are free to leave anY time and offer
their services to other employers. (L. L

Datu

& Co., lnc. v. NLRC, GR No.

113162, February 9, 1996)

No.

Note. Project emPloYees are not


regular emPloYees, their services

159828, April 19, 2006)

to give meaning to the


of security of
tenure and right to self-organization
(Mercado v. NLRC, GR No. 79869,

being needed onlY when there are

Purpose:

constitutional guarantees

projects to be undertaken.

Requiremen1c: (Policy lnstruction No. 20


and D.O. No. 19, Series ot 1997)
a. Specific project phase thereof stated

September 5, 1991).
3.

Project Employment

b.

Employment has been fixed for a specific


project or undertaking, the completion or
termination of which has been determined
at the time of engagement of the

in the employment contracl;


Esti

E m pl

o#bkrdst$kvB

the

S.e

etion

of
likewise

of

employee.

Where

construction

for an indefinite period. lf they are


employed in a particular project, the

of

CA, GR

of the

company while in the work Pool, are


non-project employees or employees

regular employment
attaches to the casual employee who
has rendered at least one (1) year of
service, 'whether such seMce is
continuous or broken, with respect to
the activity in which he is employed
and his employment shall continue
while such activity exists.
A casual employee is only casual for
one year, and it is the.passage of time
that gives him regular status

a
(KASAMMA-CCO v.

PROJECT has reference to a


particular job or undertaking that may
or may not be within the regular or
usual business of employer. ln either
case, the project must be distinct,
separate and identifiable from the
determinable.

Employment arrangement where an


employee is engaged to perform activities
which are not necessary or desirable in
the usual trade or business of the

The status

usual

duration must

Gasual Employment

employer.

to the

main business of the employer and its


be determined or

probationary period shall be

considered a regular empoyee.

a.

indispensable

business or trade of the emploYer.

who is allowed to work for at least one


year, whether the same is continuous
or broken, shall be considered regular

c.

The tasks performed by the alleged


project employee are vital, necessary

employment

of

project

employees is extended long ' after the


supposed project has been finished, the
employees are removed from the scope of
project employees and considered regular
employees.
Em

When may a project employee become


a regular employee?
1. There is continuous rehiring of project
employees even after the cessation of
a project for the same tasks or nature
oftasks; and

Disti

ec't or
underta
specified
engaged for that

which are

L23

LABOR LAW
LABOR RELATIONS
Entitlement to Separation Pay
General Rule: Project employees are NOT
entitled to separation pay if they are
terminated as a result of the completion of the
project or any phase thereof in which they

project

or

undertaking which

or

is

usuatly

desirable in the usual


business or trade of the employer, the
necessary

completion of which has been determined

at the time of the engageme*

tt

have been employed.

employee.

Exception: if the projects they are working on


have not yet been completed when their
services are terminated; project employees

A flxed-period employee does not becorne

also enjoy security of tenure during the limited

period of time.

time of their employment. (De Ocampo


NLRC, GR No. 9A77, June 6, 1990)

4.

v.

because hb

employment is co-terminus with a specific

Reason for validity of fixed-period


employment Freedom of parties to

SeasonalEmployment

contract so long as the stipulations thereof


are not contrary to law, morals, good
cudoms, public order and public policy.

usually necessary or desirable in the usual


business or trade of the employer.

Note: lt does not necessarily follow that


where the duties of the employee consist
of activities usually necessary or desirable
in the usual business of the employer, the
parties are forbidden from agreeing on a
period of time for the performance of such

Employment arrangement where an


employee is engaged to work during a
particular season on an activity that is

During off-season, the relationship of


is not severed;
the seasonal employee is merely
considered on leave of absence without
employer and employee
pay.

When are seasonal

employees

considered as regular employees?


1. When there is reasonable connection

between

2.

the

particular

activities. There is nothing contradictory


between a definite period of employment
and the nature of the employae's duties.

(See Pangilinan vs. General

Milling

Corporation, G.R. No. 149329, 12 JulY


2m4)

activity

performed by the employee in relation


to the usual trade or business of the

However, in the following cases, workers


employed for a fixed-term were considered

employer; and
Seasonal workers who are repeatedly
engaged to perform the same tasks
for more than one season. (See
Hacienda Fatima
National
Federation
Sugarcane Workers-

as regular employees:

of

ys.

Food and General Trade G.R. NO.

Note: One-year duration on the job


pertinent

in deciding whether a

it is NOT pertinent to a seasonal

b.

NLRC, G.R. No. 108405, 4 APr 2003);


The employees werb allowed to work
for more than one Year and there is a

beyond the fixed-term without the


benefit of a new contract (Viernes vs.

the

is

or

project employee. Passage of time does


not make a seasonal worker regular or
permanent (Mercado v. NLRC, GR No.

usual

employer

NLRc.ffiR{ W{i@224,
xr

il:,

j,,,r

il;l

i.*"er'vt'q

isa
the
the

79869, September 5. 1991).

When the business establishment is sold

which effectively terminates

the

employment of the seasonal employees,


the latter would be entitled to separation
pay.

or

The employees were allowed to work

casual

employee has become regular or not, but

5. Temporary

a.

reasonable connection between the


particular activity performed by the

.14944, 28 Jan 2003)

Fixed-Period

Employment

Employment arrangement where an


employee is engaged to work on a specific

L24

a regular employee

Gebs 0oltege d!['^tu


2OI1 CENTRALIZED BAR OPERATIONS

Ser

their work must be necessary or desirable


in the usual business of the employer, (2)
they worked for the employer throughout

the parties without any force, duress, or


improper pressure being brought to bear

2.

upon the employee and absent any other


circumstances vitiating his consent; or
lt satisfactorily appears that the employer
and the employee dealt with each other on

more or less equal terms with no moral


dominance exercised by the former or the
latter (Brenf Schoo/ v. Zamora, GR No. L4U94, February 5, 1990).

the year, their emfloyment not

being
dependent on a specific project or season,
and (3) they worked for more than one
year,

ART. 281: PROBATIONARY EMPLOYMENT

Probationary Employment

General Rule: Fixed-Period Employment is


valid so long as the criteria abovementioned
are complied with.

Exception: While the Supreme Court has


upheld the legality of fixed-term employment,
where from the circumstances it is apparent
that the periods have been imposed to
preclude acquisition of security of tenure by
the employee, they should be struck down or
disregarded as contrary to public poiicy. (See
Manila Water Co. lnc. vs. Pena, G.R. No.
158255, 8 July 2004: Magsalin vs. National
Organization of- Working Men, G.R. No.
14U92, I May 2043)
Special Groups of Employees

1. OFWs and Seafarers cannot

be

considered as regular employees. Their


employment is governed by the contracts
they sign every time they are rehired and
their employment is terminated when the

contract expires. Their employment is


fixed for a certain period of time

For a private school teacher to acquire


permanent status in employment, the
following requisites must concur: (1) the

teacher is a full-time teacher; (2) the


teacher must have rendered three

the

employee, upon his


engagement is made to undergo a trial period
during which the emptoyer determines his
fitness to qualify for regular employment based
on reasonable standards made known to him
at the time of his engagement.

Exists where

Note: ln all cases probationary employment,

the employer shall make knoarn to

the
employee the standards under which he will
qualify as a regular employee at the time of his
engagement. Where no standards are made
known to the employee at that time, he should
be regarded as a regular employee.

Characteristics of ProbationarY
Employment

L lt is an employment for a trial period;


2. lt is a temporary employment status prior
to regular employment;
3. lt arises through a contract with the
following elements:
a. The employee must learn and work at
a particular type of work;
b. Such work calls for a certain
qualifications;
c. The probation is fixed
d. The employer reseryes the power to

consecutive years of service; and (3) such


service must have been satisfactory.
(Spouses A/wyn Ong Lim and Evelyn
Lukang Lim Vs. Legazpi Hope Christian
School, et al., G.R. No. 172818, March 31,

e.

terminate during or at the end of the


trial period; and
lf the employee has learned the job to

,he

2009.)

The employment of househelpers is the


only kind in the Labor Cade where a fixed
term is XPRFSSLY PROVIDED FOR.
Under Arf. 142 of the Labor Code, the
original contract for domestic service shall
not last more than 2 years, renewable for
such periods as may be agreed upon by
the parties and subject to review every 3
years with the end in view of improving the
terms and conditions thereof.
Piece-rate workers may attain regularity of
employment. Payment by the piece is just
a method of compensation and does not
define the essence of compensation. For
piece rate workers to be regularized: (1)

1.

2.

3.W
4.

When
of the

by
nature

1?q

LABOR LAW
LABOR RELATIONS

Example: The probationary period set for


professors, instructors and teachers is ffiree
(3) consecutive years of satisfacfory service
pursuant to DOLE Manual of Regulations for

exercised in accordance with the speclflc


requirements of the contract;

2. lf a particular

Private Schools.

Extension of Probation
The employer and employee may extend by

agreement

the

probationary period of

employment beyond six (6) months.

Note: By voluntarily agreeing to such an


extension, the employee waived any benefit
attaching to the completion of the period if he
still failed to make the grade during the period

of

extension (Mariwasa Mfg., lnc.

v.

Hon.

Leogardo, GR No. 74246, January 26, 1589).

Double

ot

The evil sought to be prevented

is

ART.282: TERMINATION BY EMPLOYER


to

dismiss their employees (Holiday lnn Manila v.


NLRC, GRNo. 109114, September 14,1993).

Termination of Probatlonary Employment


Probationary employees are protected by the
SECURITY OF TENURE provision of the
Constitrition.
HOWEVER, a probationary employee may be
terminated at any time before the expiration of
the probationary period on fwo (2) grounds:
Just cause; and

Failure

Regular Status after Probationary Period


lf the probationary employee is allowed to
work beyond the period of 6 months or the
agreed probationary period, said employee
becomes a regular employee by operation of

NOT

discourage scheming employers from using


the system al double or suoessive probation
to circumvent the mandate of the law on
regularization and make it easier for them to

1.

4.

law.

Successive Probation

Allowed

2.

3.

flrne is prescribed, the


termination must be within such time and if
formal nofice is required, then that form
must be used,
The ernployer's dissafisfaction must be
real and in good faith, not feigned so as to
circumvent the contract or the lar,lt and
There must be no unlawful discrimination
in the dismissal.

to

meet the standards.

Guidelines

to

Determine the Validity of

Termination:

1.

Gravity of the offense;

2. Position occupied by the employee;


3. Degree of damage to the emPloYer;
4. Previous infractions of the same offense;
and
5. Length of service.
Totality of lnfractions Doctrine
It is the totality, not the compartmentalization
of company infractions that the employee had
consistently committed, which justifies the
penalty of dismissal (e.g- number of violations
committed during the period of employment).
(Manila Electic Company v. NLRC, GR No.
1 1 41 29, October 24, 1 996)

for

Just Gauses
1. Serious Misconduct

qualifications for a regular employment.

Note: The probationary employee is entitled to

MISCONDUCT has been defined as the

PROCEDURAL

transgression

DUE PROCESS prior

to

dismissal from the service.

The power of the employer

is

to terminate

subject to the
following limitations: First, this power must be
exercised in accordance with the specific
requirements of the contract. Second, the
dissatisfaction on the part of the employer
probationary employees

must be real and in good faith, not feigned so


as to circumvent the contract or the law. Third,
there must be no unlaMul discrimination in the

dismissal. (Davao Contractors Development

Cooperative (DACODECO)

vs.

Marilyn

A. Pasawa, G.R. No. 172174, July 9,2@9)

Limitations to Termination of Probation


1. The employer's power to terminate

probationary employment contract must be

L26

of some

established and

$sn

FeDs @ollegs of ![.stn


2011 CENTRALIZED BAR OPERATIONS

NLRC, GR No.

Examples:

a. Sexual harassment
b. Fighting within companit premises
c. Uttering obscene, insulting or
offensive words against a superior
d. Falsification of time iecords
e. Gross immorality
2.

b.

Inc. v. NIRC, GR No.

been willful

HOWEVER, the rule has no


application where the complainant
does not pray for reinstatement and
asks for separation pay instead. (Jo,
et. al v. NLRC, GR No. 121605,

or

intentional, the
wilffulness being characterized by a
"wrongful and peruerse attitude"; and
The order violated must have been:
Reasonable and laMul;
Made known to the employee;

i.
ii.
and
iii. ln connection to the duties
discharge (Acesite Corporation,
et. al v. NLRC, GR No. 152308,
January 26, 2N5).

Note: There is no law that compels an

employee to accept a promotion for the


reason that a promotion is in the nature of
a gift or reward, which a person has the
right to refuse. Hence, the exercise by the

employee

of the

right

to

refuse

promotion cannot be considered in law as


insubordination, or willful disobedience of
a laMul order of the employet {PT&T
Corp. v. CA, September 29, 2003).

Gross and Habitual Neglect of Duties


ln order to constitute a just cause for the
employee's dismissal, the neglect of duties
MUST NOT ONLY BE GROSS BUT ALSO
HABITUAL.
Gross nqlect means an absence of
that diligence that
ordinarily
prudent man would use in his own

an

128W6,

September 28, 1999).

The employee's assailed conduct has

which he had been engaged to

3-

Note: The filing of the complaint for


illegal dismissal (with a prayer for
reinstatement) is inconsistent with the
charge of abandonment (Kams lnt'|,

Willful Disobedience or lnsubordination


Requisites

a.

110388,

September 14, 1995)

February 2, 2000)

4.

Fraud or Willful Breach of Trust

Fraud or dolo - consists in the conscious


and intentional proposition to evade the

normal fulfillment
Commission

of an

of fraud by an

obligation.
emploYee

against the employer will necessarily result


in the latteis lost of trust and confidence in
the former.

Requisites for Fraud:


a. Fraud must be committed AGAINST
the employer or his representative;

b.

and

lN CONNECTION with the employee's

work (Depaftment of Labor Manual,


Sec. 4353.01[3]).

Examples

1. falsification of time cards


2. theft of company property
3. unauthorized use of vehicle
Willful Breach of Trust

Breach of trust

or confidence must be willful. A breach is

affairs (Department of Labor Manual,

Sec. 4343.01[27]).

Habitual nqlect implies repeated


failure to perform one's duties over a
period of time, depending upon the
circumstances (JGB and Associafes,
lnc. v. NLRC, GR No. 10939, March 7,

of

1ee6).

be

of

Forms of Nqlect of Duty

a. Habitual tardiness and absenteeism;


b. Abandonrnent
i. Failure to report for work or
absence without valid or justifiable

ii.

reason;

Clear intention to sever Er-Ee


relationship being manifested by
some overt acts. (Labor et., al, v.

L27

UIBOR IAW
LABOR RELATIONS

d. Must be genuine, not a mere


. afterthought to jtistify earlier action
taken in bad faith; and
e. The employee involved holds a
position oftrust and confidence.

NoE: Generally, employers are allowed


wider latitude of discretion in terminating

the employment of managerial personnel


or those who, while not of similar rank
perform functions which by their nature
require the employer's full trust and
confidence. (Coca-Cola Bottlers v. NLRC,
GR No. 825ffi, April25, 1989)

5.

just cause for terminating his

Due Process to be observed by the


employer
The following standards of due process shall
be substantially observed for termination of
employment based on just causes:

1.

Notice (Twin Notice Rule) - the emfloyer


is required to furnish an employee wfio s
to be dismissed with two (2) writen
notices before such termination:

a.

Commission of a Crime or Offense


Refers to an offense by the employee
against the person of his employer or any

- a wriften notice served


employee specifying the

Pre-Notice

on the

ground or grounds for termination, and


giving to said employee reasonable
opportunity within which to explain his

immediate member of his family or his duly


authorized 'representative and thus, the

b.

conviction of a crime involving moral


turpitude is not analogous thereto as the
element of relation to his work or to his

6.

employment

(Manila Chauffer's League v. Bachrach Motor


Co., 40 A.G. 159\.

side;

Post-Notice

- a

written notice of

termination served on the employee


indicating that upon due consideration

employer is lacking.

of all the circumstances, grounds have

Note: The CONVICTION of an employee


in a criminal case is NOT necessary to

termination. (which comes only after

warrant his dismissal by his employer.

period from receipt of the first notice to


answer the charge, see requirement 2
below) (Pepsi-Cola v. NLRC, GR No.
90964, February 10, 1992)

been established to justify

Analogous Causes
Must be due to the voluntary and/or wilfful
act or omission of the employee (Nadura
v. Benguet Consolidated, GR No. L17780, August 24, 1962).
Examples

a. Violation of company rules


regulations
b. Drunkenness
c. Gross inefficiency

and

d. . lllegally diverting employer's products

his

the employee is given reasonable

2.

Hearing

or

Conference

a hearing or

conference should be held during which


the employee concerned, with the
assistance of counsel, if the employee so

desires,
respond

is given the opportunity to


to the charge, present his

evidence or rebut the evidence presented


against him (Lavador v. "J" Marketing
Corparation and Soyao, GR No. 157757,
June 28, 204Q.

Other JustCauses Recognized under Other


provisions of the Labor Code
1. Union officers who knowingly participate in
an illegal str.ike.

2. Any employee,
3.

union officer or mere


member who knowingly participates in the
commission of illegal acts during a strike.
Strikers who violate orders, prohibitions
and/or injunctions as are issued by the
Secretary of Labor and Employment or the

4.

Violation

NLRC.

stipulated

of union security clause


in the CBA pursuant to Arf

248[e].

rs
a

Doctrine of lncompatibi lity


Where the employee has done something that
is contrary or incompatible with the faithful
performance of his duties, his employer has a

128

as
considered

Sutt Febs Cullege of Asb


2011 CENTRALIZED BAR OPERATIONS
lnc. v. NLRC, GR No. 89876, November

13,

1.

1e92).

Note: ln Agabon v. NLRC, GR No. 158693,


Nov. 17, 2004, when dismissal is for just or
authorized cause but due process was not
observed, the dismissal should be upheld.
However, the employer sho0ld be held liable
for non-compliance with the procedural
requirements of due process (i.e. damages).
The above ruling was modified by JAKA Food
Processing v. Pacd,, GR No. 151378, March
28, 2005:
lf based on a just cause (Art. 282) but the
employer failed to comply with the notice
requirement, the sanction to be imposed
upon him should be tempered because the
dismissal process was, in effect, initiated
by an act imputable to the employee; and
lf based on an authorized cause (Art. 283)
but the employer failed to comply with the
notice requirement, the sanction should be
stlrTer because the dismissal process was

1.

2.

initiated by the employer's exercise of his

2.
3.

However, when there is a company policy


or a CBA provision mandating payment of
wages during said 30-days preventive
suspension, such payment shall be made.
Preventive suspension should not last for
more than thirty (30) days. The employee
should be made to resume his work after
30 days.
However, the same can be extended
provided
employer pays the
suspended employee his wages and other
benefits.

the

Note: After the lapse of the 3Gday period, the


employer is required to reinstate the
employee. lf the employer decides to extend
the period of preventive suspensions for
justifiable reasons, he is obligated to pay the
wages and other benefits due to the
suspended worker.

Offers to reinstate the worker made.after the


filing of a complaint for illegal dismissal could
not validate an otherwise arbitrary dismissal.

managemerfi prerogative.
The ruling in the JAKA case was also modified
in lndustrial Timber Corp., et. al. vs. Ababan,
et. al., GR No. 164518, March 30. 2006. This
case subdivided the di3missal for authorized
causes into 1) due to losses and 2) not due to
losses. lf the authorized cause that terminates
employment arises from losses, the penalty to
the employer who disregarded due process
may be lighterthan if the authorized cause has
no relation to losses.

The Court also mentioned other factors to


consider ln assessrng the penalty to the
employer such as:

1. The authorized cause invoked, whether

2.
3.
4.
5.

retrenchment or cessation of operation


due to serious business losses;
The number of employees to be awarded;
The financial capacity of the employer;
The employer's grant of other termination
benefits; and
Whether there was a bona flde attempt to
comply with

Requirements for Termi nation

1.

2.

Substantive Due Process-The employer


shall not terminate the services of an

employee except for a just cause (Art 282)


or when authorized by law (Arts. 283 and
284). When there is no showing of a clear,
valid and legal cause for the terminatiOn of
employment, the law considers the case a
matter of illegal dismissal.
Procedural Due Process
For termination based on just causes
under Art. 282, procedural due

a.

process means compliance with the


following:

i. A

written notice (first

notice)

served on the employee


specifying the ground for

the notice requirement as

of

opposed to giving no notice at all.

so

'to

Preventive Suspension
An employee may be placed under preventive

suspension, if his continued employment


poses a serious and imminent threat to life or
property of the employer or his co-workers. lt
shall be for a maximum period of 30 days,
during which period the employee placed
under preventive suspension is not entitled to
any wages.

his

the
due
the
have

justify

his

L29

LABOR LAW
LABOR RELATIONS

b.

For termination based on authorized


cause under Afts 283 and 2U,
compliance with procedural due
process which means service of a
written notice to the employee AND
the appropriate Regional Office of the
DOLE at least 30 days before the

effectivity

of the

(Belated Due Proess Rule

(See Note under Degree of Proof)

5.

termination,

termination.

possible,

For termination based on completion


of contract or phase thereof- No prior

position.

notice is required

d. For

termination

lnstances when hearing is not required:


Admission of guilt by employee

c.
d.
e.

f.

g.
h.

i.
j.

to

authorized

caruses

is

the

6.

Cases when there

is no evidence of

dismissal (e.9. when employer did not


dismiss his employees, and the latter did
not abandon their employment). Remedy

is

reinstatement but without backwages


(See Asia FanQ Plywood Corp. vs. NLRC,
G.R. No. 11309,20Jan 1999)

Termination due to expiration of period of

by the appropriate official of the Department of

to

lapse

of season

in

contractual employment.
Termination due abandonment
Termination due to closure or stoppage of
work by government authorities.

Six Situations in Termination Disputes


1. The dismissal is for a just cause under Art.
282, for an authorized cause under Art
283 o1 for heafth reason under Art 284,
and due process was observed- Legal.
2. The dismissal is without just or authorized
cause but due process was observed lllegal.
3. The dismissal is without just or authorized
cause and there was no due process lllegal.
4. The dismissal is for a just or authorized
cause but due process was not observed
- Legal but employer is liable to pay
indemnity in the form of nominal damages

130

caus+lt

case of seasonal employment.

Termination due

k. Termination due to expiration of tenure


made coterminous with lease
l. Termination due to expiration of
n.

Suspension of Effects of Termination


The Secretary of Labor may suspend the
effects of the termination pending resolution of
the case in the event ot a prima facie finding

probationary employment

m.

substantially equivalent

Termination for a non-exisfenf cause-The


employer does not intend to dismiss the
employee but the dismissal was effected
nonetheless for a specific cause which
turns out to be non-existent.

date of the termination.

under Art 283


Termination due to disease under Art. 284
Resignation by the employee
Termination after 6 months of bona-fide
suspension of operation
Termination due to expiration of flxedperiod"employment.
Termination of casual employment
Termination due to completion of project in
project employment.

to a

dismrssal is illegal.

employee concerned within a


reasonable time from the effective

Termination due

non-existent cause

intention of the employer to dismiss his


employee for a cause whatsoever, only
that there was really no cause, hence, the

to

be

for

Termination without

of

probationary
employment based on failure to meet
the standards of employment-written
the
notice must
served

a.
b.

Termination

ttlegal, The employee who was dismissed


based on a non-existent cause should be
reinstated to his former position, or if not

specifying the ground or grounds for

c.

utrc l,fitrpli

Doctine).

Labor and Employment before whom the


dispute is pending that
1. The termination may cause a serious labor
dispute.

2.

The termination is in implementation of a


the Labor
mass
Code

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2011 CENTRALIZED BAR OPERATIONS

real, or if only exPected, are


reasonably imminent as Perceived

precluded from adopting a new policy


conducive to a more economical and
effective management, and the law does
not require that the employer should be
suffering financial losses before he can

objectively and

Philippines, lnc., et.

3.

2. The

redundancy (Dole
alv. NLRC, et. al).

3.

Retrenchment (Downsizing)

a.

reduction of personnel usually due to

poor financial returns so as

to

cut

down on costs of operations in terms

of

b.

salaries and wages

to

employees SEPARATION PAY


equivalent to one month pay or at
least one-half month pay for every

year of service;

prerogative to retrench employees lN


GOOD FAITH for the advancement of

its

interest and not to defeat or


the employees' right to

circumvent

security of tenure; and

5. The employer used FAIR 'AND

PREVENT

LOSSES' means that retrenchment or


the service of some
employees is authorized to be undertaken
by the employer sometime before the
losses anticipated are actually sustained
or realized. Evidently, actual losses need
not set in prior to retrenchmenl (Cajucom
VIlv. TPI Philippines Cement Corporation,
et. al, GR No. .149@0, February 11,

REASONABLE CRITERIA

termination from

in

ascertaining who would be dismissed


and who would be retained among the
employees, such as status, efficiency,

seniority, physical fitness, age and


financial hardship for certain workers
(Asian Alcohol Corp. v. NLRC, GR No.
131108 March 25, 1999).

'

Note: The employer bears the burden to

2005).

There

employer served WRITTEN


NOTICE both to the employees and to
the DOLE at least one (1) month prior
the intended date of retrenchment;
The employer pays the retrenched

4. The employer exercises its

prevent

bankruptcy of the company;


linked with losses; it is a cost-cutting
measure made immediately necessary
by business reduction or reverses.

Note: The phrase "TO

in good faith by the

employer;

terminate the services of the employee on

the ground of

00c0009

is NO need for

piove such ground with clear

investigation and

hearing before an employee may be


dismissed due to retrenchment or
redundancy. The employee can however
controvert the grounds for termination

and

satisfactory evidence, failing which the


dismissal on such ground is unjustified.
(Bio Quesf Marketing lnc. and/or Jose L.

Co vs. Edmund Rey, G.R. No. 181503,


September 18, 2009.)

before the DOLE.

General Standards

of

Retrenchment

(srNS)

1.

The losses expected are substantial

2.

The apprehended substantial loss are

3.

perceived objectively and in good faith


by the employer;
Retrenchment must be reasonably
necessary to prevent the expected
losses; and

4.

and not merely de minimis in extent;

reasonably lmminent,

can

"Last ln, First Out" Rule (LIFO)


It applies to termination of employment in the
same line of work. What is contemplated in the
LIFO rule is that when there are two or more
employees occupying the same position in the
company

be

#effi

x-,,rrfv

Expected or actual losses must be


proved by sufficient and convincing

evidence (Central Azucarrera dela


Carlata v. NLRC, GR No. 100092,
December 29, 1995).
Requirements for Valid Retrenchment

1.

Retrenchment is REASONABLY
NECESSARY and likely to prevent
business losses, which, if already
incurred, are not merely de minimis,
but substantial, serious, actual and

to
deter

enjoy

131.

LABOR LAW
LABOR RELATIONS

c.

Hobson's Choice - Means no choice at all; a


choice between accepting what is offered or
having nothing at all. For example, in Asufrin,
Jr. vs. San Miguel Corporation, (G.R. No.
156658, 10 March 2004), the employees were
given the choice either to voluntarily retire, be

retrenched

with benefits or be

dismissed

without receiving any benefit at all.

Retrenchment vs.
purposes
company
decides to reorganize its
departrnents by imposing
one
on employees
department the duties
performed
the
Employer reduces the employees of the other
number of its personnel
thus
prevent
order
unnecessary
rendering
his
turther losses
the job of the latter, the
business operations.
the
whose
functions are now being
performed by the former,
validly

economy

Where closure was due to an act of


the government, the workers are not

to separation pay (National


Federation of Labor v. NLRC, GR No.
127718, March 2, 2000).

entitled

Note: Article 283 includes both

the
business
an establishment and the
only part of a company's

complete cessation

operation of
cessation of
business (Cheniver Deco Print Technics
Corp. v. NLRC, GR No. 122876, February
17,2ffi0).

of
by

to

in

Does

nst

require

proof

departnent,

actual

in

of

or

imminent
loss

seMces of
employees
may be

of all

5.

Disease

terminated on the ground

Regur.sifes:

of REDUNDANCY.

a. The employee

is

suffering from

disease

4.

Closure or Cessation of Operation of


the Establishment or Undertaking
Reguisifes

close or cease
operations should be made in good

a. The decision to
faith.

b. The purpose
circumvent

the

be to
ol Title I

should not
provision

Book Six of the Labor Code (Rules on

c:'

Termi n at i on of Em p I oyment

There is no other option available to


the employer except to close or cease

b. His continued employment is either


prohibited by law, prejudicial to his

c,

health or prejudicial to the health of his


co-employees.
There is a certification by a competent
public health authority that the disease
is of such nature or at such stage that it
cannot be cured within a period of six
months even with proper medical
treatment.

d. Notice of termination based on this


ground should be served to the
employee concerned and the

operations.

d. The notice requirement under Aft. 283


should be complied with.
e. Separation pay under the law (when
not due to serious business losses) or
company policy or CBA or similar

contract, when appropriate must be


paid to the affected employees.
Rules.'

a.

Where closure

is due to

serious

business losses, no separation pay is


required; {Notth Davao Mining Corp.
v. NLRC, GR No. 112546, March 13,

b.

1996)

Where closure is NOT due to serious


business losses, workers are entitled
to separation pay;

t32

must be

Ssa Felu

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Arb

2011 CENTRALIZED BAR OPERATIONS


The requirement for a medical certificate
under article 284 of the labor code cannot

be

dispensed with; otherwise,

When termination is brought about by the

completion of the contract or phase


thereol no prior notice is required.

it

would
sanction the unilateral and arbitrary
determination by the employer of the
gravity or extent of the employee's illness
and thus defeat the public policy in the

3.

Payment of separation pay.

Rules on

protection of labor (Sy, et. al v. CA, GR


No. 142293, February 27,2003).

to at least one

Note: Discrimination ih any form from pre-

Equivalent

employment to post-employment, including


hiring, promotion or assignment, based on
the actual, perceived or suspected HIV
prohibited.
status
an individual
Termination from work on the sole basis of
actual, perceived or suspected HIV status

month pay for every year of

of

is

is deemed unlawful (Sec. 35, R.A. 8504,


Htv/AtDs LAW.

month pay

or at least one

service, whichevbr is higher, a

fraction of six (6) months is


considered as one (1) whole
year

Equivalent to one month pay


or at least one-half month pay

for

every year

of

service,

whichever is higher, a fraction

Other Authorized Causes:

1. Total and permanent disability of


employee;
2. Valid application of union'security clause;
3. Expiration 'of period in term of

employment;
4. Completion of project in project
employment;
5. Failure in probation;
6. Relocation of business to a distant place;
7. Defiance of return-to-work order;
8. Commission of illegal acts in a strike;
9. Violaiion of contractual commitment; and
,

10. Retirement

Totality of lnfractions Doctrine


Where the employee has been found to have
repeatedly incurred several suspensions or
warnings on account of violations of company
rules and regulations, the law warrants their
dismissal as it is akin to "habitual delinquency"
(Villeno v. NLRC, 251 SCRA 494).

of six (6) months is considered


as one (1) whole year

Equivalent to one month pay


or at least one-half month pay

for every year of seMce,


whichever b higher, a fraction
of six (6) months is considered
as one (1)whole year.

lf

due

to

severe

business

losses or financial reverses,


no separation pay due (North
Davao Mining & Development

Corporation

scw721).

v.

NLRC, 254

Equivalent to at least onemonth salary or to % month

for every year of


service, whbhever is greater,
a fraction of at least 6 months
salary

shall be considered one (1)


whole year

Procedural Steps Required


1. Written notice to DOLE 30 days prior to
the intended date of termination;

Purpose:

to

enable

it to

ascertain the

verity of the cause of termination

2.

Written notice to employee concerned 30

days prior

to the intended date of

termination;

Note: When termination of employment is


brought by the failure of an employee to
meet the standards of the employer in
case of probationary employment, it shall
be sufficient that a Written notice is served
the employee within a reasonable time
from thd effective date of termination.

133

LABORLAW
LABOR RELATIONS

Dismissal for Just Cause vs. Termination


for Authorized Cause

The employee must serve a written notice on

the

employer

at

least one (1) month

in

advance.

Once accepted, cannot be withdrawn without

The employee is The employee is


dismissed for causes dismissed for causes

the conseht of the employer (lntertrod

which are attributable to independent

19, 1e91).

his fautt or culpability.

of his fault

or culpability.

employee terminated
Asarule,adismissed An
for authorized cause is
employee is not entitled
entitled to separation
to separation pay.
pay.

Before an employee is

Employer must give the

employee to be
dismissed for just cause,
a written
terminated
he must be given ample notice at least 1 month
opportunity to be heard
before the intended day
and to defend himself.
of termination.

ART.285: TERMINATION BY EMPLOYEE

1. Without Just Cause - by serving

WRITTEN NOTTCE on the employer at


least one month in advance. The employer
upon whom no such notice was served

may hold the employee liable

for

damages.

2.

d.

by established employer practice or

policy

(tbid )

Note: lf resignation is not voluntary, the same


can be deemed to be a constructive dismissal.

Voluntary resignation and illegal dismissal are

adversely opposed modes of terminating


employment relations, in that the presence of
one precludes that of the other (Alfaro v. CA,
ibid).

lntention to Resign

An employee may be deemed to


resigned from his position, and

have
such
made

representative

and disappointments in the office. (Philippines

(sucA)

c.

entitled to separation pay unless stipulated in


an employment contract or CBA or sanctioned

Serious lnsult by the employer or his

for any of the following just causes:

b.

An employee who voluntaily resigns is not

"resignation" may be accepted and


effective by the management, although the
employee did not mention the word 'resign"
and/ or "resignation'. This happened to the
chief investigative reporter of the Philippine
Star. He sent a 'Memorandum for File' to the
Chairman-CEO expressing his frustrations

With Just Cause - An employee may put


an end to his employment WITHOUT
SERVING ANY NOTICE on the employer

a.

Maitime, lnc. v. NLRC, GR No. 81087, June

on the honor and

person of the employee;

lnhuman and gnbearable Treatment

accorded the- employee

by

the
employer or his representative;
Commission of a Crime Or Offense by
the employer or his representative
against the person of the employee or
any of the immedrate members of his
family; and
Other causes gnalogous to any of the
foregoing.

Dismissal

Today lnc.,

al v. NLRC, G.R. No. 112965,

January 3e, 1997)

Constructive Dismissal

Defined as quitting because continued


employment is rendered impossible,
unreasonable or unlikely, as an offer involving

Termination of employment by

the employer

Resignation

Termination of employment by

the employee.

Voluntary Resignation
Defined as the act of an employee, who finds
himself in a situation in which he believes that
personal reasons cannot be sacrificed in favor
of the exigency of the service; thus, he has no
other choice but to disassociate himself from
his employment (Alfaro v. CA, GR No. 140812,
August 28, 2001).

134

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to

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2011 CENTRATIZED BAR OPERATIONS

lnc. v. Catinoy, GR No. 143204, June

26,

TITLE TWO. RETIREMENT FROM

2001.)

SERVICE

Temporary Lay-Off

ART.287: RETIREMENT

There is no specific provision of lar which


treats of a temporary retrenchment or lay-off
and provides for the requisites in effecting it or
period
duration therefore. These
employees cannot however
forever
"temporarily" laid-otf.

of

be

THE

Concept of Retirement
It is the result of a bilateral act of the parties, a

voluntary agreement between the employer


and the employees whereby the latter, after

a certain age, agrees andlor


to sever his employment with the
former (Brion v. SPUM of the Seventh Day
reaching

consents

To remedy this situation, Article 286 may be


applied but only by analogy to set a speciflc
period that employees may remain temporarily
laid-off or in a floating status (while business
operations are suspended) for only a period of
six months.

ART. 286: WHEN EMPLOYMENT

NOT

DEEMED TERMINATED

Adventist Church, GR No. 135136, May

19,

19e9).

Coverage ot Art.287
Applies to all employees in the private sector,
regardless of their position designation status
and irrespective of the method by which their
wages are paid, except those specifically
exempted.

When Employment NOT Terminated:


1. Bona fide suspension of the operation of a
business or undertaking for a period nof
exceeding six'(6) months; or
2. Fulflllment by the employee of a military or
civic duty.

HOWEVER, Att. 287 does not appty to,:


1. Employees of the National Government,

and its political subdivisions, including


GOCC's if they are covered bY Civil

2.

Floating Status
The "floating status" of an employee should

Service Laws;
Employees of retail, service and agricultural
operations regularly
establishments
employing not more than 10 employees.

or

last only for a legally prescribed period of time.

When the floating status of an employee /asfs

far more than six months, he may be


considered to have been constructively

dlsmlssed from service. Thus, he is entitled to


the corresponding benefits for separation
(Agro Commercial Securify Serubes Agency,

lnc. v. NLRC, GR Nos. 82823-24, July

31,

1989).

Notice Required

Serious business losses do not excuse the


employer from complying with the clearance or
report required under Article 283 of the Labor
Code and its implementing rules before

terminating the employment of its workers. ln


the absence of justifying circumstances, the

failure

of the employer to

observe the

Kinds of Retirement Schemes:

1.

2.

compulsory and contributory in nature;

one set up by agreement between the


employer and the employees in CBA or
other agreements between them (other
applicable employment contract);

3. one that is

voluntarily given

by

the

employer, expressly as in an announced


company policy or impliedly as in failure to
contest the employee's claim for

retirement benefits (Marilyn Odchimar


Gerlach v

s., GR No.

A9ffi;,*,,,fth#Hffi#

reti

*irfFPtr e*Ftl::ff

procedural requirements set out under Afticle


284, taints their actuations with bad faith. lf the

lay-off was temporary but then serious


business losses prevented the reinstatement
of respondents, the employer should have
complied with the requirements of written
notice.

to
whose

they

13s

LABOR LAW
LABOR RELATIONS
have at least served for a period of
(Att. 287 as amended by R.A. 8558).

5 years

Compulsory Retirement Age Below 60


Allowed
Att. 287 permits employer and employee to fix
the applicable retirement age at below 60
years. The same is legal and enforceable so
long as the parties agree to be governed by
such CBA (Pantranco North Express v. NLRC,
GR No. 95940, July 24, 1996).

the

and

lnvol untary Retirement


Voluntary retirement cuts employment ties
leaving no residual employer liability.

.
r

lnvoluntary retirement amounts

to

discharge, rendering the employer liable

for

termination without cause. The


is the focal point of

employee's intent

analysis.

ln determining such intent, the fairness of

the process governing the

retirement

the payment of stipulated


benefits, and the absence of badges of
intimidation or coercion are relevant
parameters (Arsenio F. Quevedo, et.al vs.
Benguet Electic Cooperative
decision,

Extension of Service of Retiree

Upon

Difference between Voluntary

of

compulsory retirement

an

or official in the public or private


service, his employment is deemed
employee

lncorporated, et.al, G.R.


September 11,2Ng).

terminated. The matter of extension of service

of such employee or official is addressed to


the sound discretion of the employer (USf
Facufty. Union v. NLRC, Gff No. 89885,

No.

168927,

August 6, 1990)

Benefits

retiree

is

entitled

to a

retirement pay

equivalent to at /easf % month salary for every

year of serwce, a fraction of at least six (6)

TITLE ONE. PENAL PROVISIONS AND


LIABILITIES

months being considered as one whole year.

ART.288: PENALTIES

the parties . provide


broader
inclusions, the term "ONE HALF (1/2) MONTH
SALARY" shall mean:
15 days plus 1t12 at the 13b month pay;

to be unlaMul or penal in nature shall

for

Unless

o
e

and

the cash equivalent of NOT more than 5


days of service incentive leaves. (22.5
days per year of service)

Under Section 26, R.A. No. 467Q otherwise


KNown as the MAGNA CARTA FOR PUBLIC
SCHOOL TEACHERS, public school teachers

the

age and service


requirements of the applicable retirement laws
having. fulfilled

shall be given ONE RANGE SALARY

RATSE

UPON RETIREMENT, which shatt be the


basis of the computation of the lump sum of
the retirement pay and the monthly benefit

Violations of the Labor Code that are declared

2.
3.

2.
3.

ten

employees or workers;
Government employees; and

Domestic helpers and those


personal service of another.

in

See RA 7641 (Retirement Pay Law).

r|6

are

Criminal

wg*5i,f,;Aft#{fui*nale

of

1. Retail, seryice and agricultural


establishments or business operations
(10)

the

fine

upon completion of service of sentence.

"a)frffi*.*r}aa}l

retirement pay are:

employing NOT more than

lll.

ln addition to such penalty, any alien found


guilty thereof shall be summarily deported

thereafter

Note: Exempted from the payment

be

punished accordingly:
1. Article L A fine of not less than P 1,000 nor
more than P 10,000
Article ll lmprisonment of not less than 3
months nor more than 3 years; or
Article
and
Both such
imprisonment at the discretion of the court.

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2011 CENTRALIZED BAR OPERATIONS


TITLE TWO. PRESCRIPTION OF
OFFENSES AND CLAIMS
ART. 291: MONEY CLAIMS

Periods of Prescription

3 years trom the

accrual of

the causes of action


1 year from the accrual of the
cause of action

years

fom the accrual of

the cause of action

Note: The period of prescription mentioned


under Afticle 292 of the Labar Code refers to
and is LIMITED TO MONEY CLAIMS, all other
cases of injury to rights of a working man
being governed by the Civil Code. Hence
REINSTATEMENT prescribes in 4 years.

Venue: The Regional Arbitration

Branch

where the workplace is located (NLRC Rules


of Procedure).

137

138

LABOR LAW
LABOR RELATIONS
Tables of Jurisdiction

Decisions

Exclusive and Original

1, ULP;
2. TerminationdisPutes;
3. lf accompanied with a claim for reinstatement, those that workers flle involving wages,
rates of pay, hours of work and other terms and conditions of employment;
4. Claims for aclual, moral, exemplary and other forms of damages arising from Er-Ee
relations;
5. Cases arising from any violation af M. 264, including questions involving the legality of
strikes and lockouts;
6. Except claims for EC, Social Security, Philhealth and maternity benefits, all other claims
7.
8.
L

arising from Er-Ee relations, including those of persons in domestic or household service,
involving an amount exceeding P 5,000 regardless of whether accompanied with a claim
for reinstatement;
Monetary claims of oversec contract workers arising from Er-Ee relations under Migrant
Workers Act of 1995;

lf the decision, order

calendar days from receiPt


of the decision.

fraud or coercion, including


graft and conuption;
lf made purely on questions
of law; and

serious errors

in

Labor

the NLRC within 10

or

anrard was secured through

lf

of

Arbiters are appealable to

abuse of discretion;

Reconsideration

is

all the requisites of

an

allowed, but if the MR has

the

findings of facts are raised

which would cause grave or


irreparable damage or injury
to the appellant.

appeal, the same shall be


treated as an aPPeal.

Wage distortion disputes in unorganized establishments not voluntarily settled by tre


parties pursuant to RA 6727;

Enforcement of compromise agreements when there is non-compliance by any of the


parties pursuant to Article 227 ol Ihe Labor Code, as amended; and

10. Other cases a$ may be provided by law.

ConcurrentWith NLRC

1.

;;*.+

Contempt cmes

Note: Although the provision speaks of Exclusive and Original Jurisdiction of Labor Arbiters,
the cases enumerated may instead be submitted to a Voluntary Arbitrator by agreement of the

i';

+3Li

i.^t{:3h_t_ {,4.i*

under ArL 262. The law

USIVE AND ORIGINAL


Cases certified to the NLRC for compulsory arbitration by the Sec. of Labor under Art.
263;
lnjunction cases under Arts. 128 and 264; and

Contemptcases.

1. Cases decided by Labor Arbiters under Art. 217(b)

2.

within

days from

the

'

APPELLATE

TION
order,

decision on
palpable or

the LC and Sec. 10 of Migrant

Workers Act; and


Cases decided by the Regional Offices of the DOLE in the exercises of their adjudicatory
functions under Art. 129 over monetary claims of workers not exceeding P5'000.

by

the

Only one (1)

APPEAL

of the NLRC
may be elevated for
Decisions

REVIEW to the Court of


Appeals by a Petition for
Certiorari under Ru/e 65 of

the 1997 Rules of Court


within 60 days from notice

of

judgment, order or

resolution sought

to

be

assailed (As amended)

1, lnterpretation and implementation of CBA provisions; and

2, lnterpretation and enforcement of company personnel policies.


Note; Grievance machinery is resorted to for purposes of settlement. Unresolved grievances
are brought to the Voluntary Arbitrator.

1.

2.

Unresolved grievances arising from the interpretation or


Those arising from the interpretation or enforcement of company personnel policies;

2.
3.

3. Upon agreement of the parties, other labor disputes including ULP and bargaining |

4.

and

Note: "All other disputes" under Arl. 262 may include termination disputes, provided that
the agreement between the parties states in unequivocal language that they conform to
the submission of termination disputes and ULP to voluntary arbitration. This is so
because termination disputes are generally within the exclusive and original jurisdiction of
Labor Arbiters by express provision ol law (Vivero v. CA, 344 SCRA 268, 2000).

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2011 CENTRALIZED BAR OPERATIONS


139

of jurisdictitrur.

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TABOR LAW
LABOR RELATIONS

petitions for
of union
registration, if filed with
ln

EXCLUSIVE AND ORIGINAL

1.
2.
3.

cancellation

lnter-uniondispute;
lntra-union dispute; and
Other related labor relations disputes.

the Regional Office, the


appeal is with the BLR
Director whose decision

NOTE: E.O, 251 OF 1987 removed from the jurisdiction of the BLR "all" labormanagement disputes. The effect of E.O. 251 is to kansfer to the NCMB the mediation,

shall be final and


exeantory.
lf the petition for
cancellation is filed
directly with the BLR, the
appeal is with the

conciliation, and arbitration functions of the BLR.


NOTE: However, the parties may by agreement, settle their differences by submitting
their case to a Voluntary Arbitrator instead of taking the case to the BLR.
Petitions for cancellation of union registration may be filed with the Regional Office or
directly with the BLR.

Secretary of Labor whose


decision shall be final and
executor

Prima

f*ie

evidence of

abuse of discretion;

lf the decision, order

or

bMaer
&W.br

fraud or
ano

&Zt1S

NOTE: The jurisdictional limitation imposed by Art. 129 on the visitorial and enforcement
powers of the Regional Director under Art. 128[b] of the LC has been repealed by R. A. No.
7730. ln other words, the P 5,000 limit in Art. 129 does not apply to the exercise of power
under Art. 12$bl (Guico v. Sec. of Labor, GR No; 1 31 7 50, November 1 6, 1 998).

Labor
receipt
upon posting

sure-Qqpnd in

qqouni'tquigaffio the
ffihetary AW'in the
ii3*ois#i6-?iihd iirderaffidd#om (R.A.
"reffi#gh ffiMkmb t?l#isn to Art,
.AVffi
of"frg$tig,gs

3.

Cases involving recovery of wages and other monetary claims and benefits, including legal
interest provided that the claim is presented by an employee or person employed in domestic
or household seryice, or househelper, the claim arises from Er-Ee relations, the claimant does
not seek reinstatement and the aggregate money claim of each employee or househelper
does not exceed P 5,000.

the Secretary of
Mhi1 5 days from

award was

hd*

Decisions of the Regional


Director are appealable to

tf \tt
findld
whicQ
rrrepq
to the

-m
4inffi

prr

rrrvrreJ

St claim for

p'

w
ffi
&

and
pses P 5,000
B appealable
within 5 days
the

rt of

Power to inspect employer's premises and records, issue ompliance orders,


stoppage of work (Art. 128)
EXCLUSIVE AND ORIGINAL
lf there exists a labor dispute causing or likely to cause a strike or lockout in an induetry
indispensable to the national interest.

THE SECRETARY OF LABOR MAY:


assume jurisdiction and decide it; or
certrfy the same to the NLRC for compulsory arbitration.

APELLATE
Cancellation of registration of federation or National union by the BLR;
Denial of application of registration of federation or national union by the BLR;
Decision of BLR in lnterilntra Union dispute; and
Decision of Med-Arbiter in Petition for Certification election.

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201 1 CENTRALIZED BAR OPERATIONS


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