Académique Documents
Professionnel Documents
Culture Documents
of
civil
liability
in
the
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is
the
prescriptive
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6. DISCRIMINATION
DUE
TO
TESTIMONY
A retaliatory act of the employer
7. VIOLATION OF DUTY TO
BARGAIN
a) Failure or refusal to meet
or convene;
b) Evading
mandatory
subjects;
c) Bad faith;
d) Gross violation of the CBA
Q: What are mandatory subjects
of the CBA?
A:
1. Grievance machinery
2. Voluntary Arbitration
8. PAID NEGOTIATIONS
ER cannot pay in own volition,
nor can EE as or accept
payments
9. GROSS VIOLATION OF THE
CBA
Q: EE is not being paid OT pay, is
it ULP?
A: Not, necessarily it must be coupled
with the reason to discourage the EE
to join labor organizations.
Q:
Can
ULP
cases
be
compromised?
A: No, they are coupled with public
interest.
Q: What is the SINGLE CHARGE
rule?
A: It means there should be no
splitting of cause of action.
Q: What are available reliefs?
A:
1. Cease and desist order
2. Affirmative order
3. Order to bargain or imposition
of the CBA
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1. RESTRAINT OR COERCION BY
LABOR ORGANIZATIONS
Unions cannot coerce EE's to
join a strike
Note: Interference of EE dose
not amount to ULP, UNLESS it
amount to coercion or retraint.
2. UNION-INDUCED
DISCRIMINATION
Union security clause used
arbitrarily
3. REFUSAL TO BARGAIN
Ex: entering negotiations with
fixed purpose of not reaching an
agreement.
4. FEATHERBEDDING
AND
MAKE-WORK
ARRANGEMENTS
featherbedding is a practice
of EEwhere they
create or
spread
employment
by
unnecessarily maintaining or
increasing the number of EEs
used,
amount
of time consumed, or work on a
particular job.
Make-work:
minimum-crew
regulations on railroads, setting
and prompt destruction of
bogus type in newspapers,
stand-by pay for musicians
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Gross violation of
CBA
Contracting out as
ULP
Company
domination of
union
Discrimination
due to testimony
EMPLOYEE
Restraint or
coercion
Feather-bedding
and make work
arrangement
Union induced
discrimination
Refusal to bargain
Asking or
accepting
negotiations or
attorney's fees
Gross violation of
CBA
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picketing
and
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Q:
What
is
the
conversion
doctrine?
A: Instance where a valid strike
(Economic) is converted to ULP or
vice-versa.
Q: Who can strike?
A:
1. Exclusive
Bargaining
Representative (EBR) if there is
one
2. Any
Legitimate
Labor
Organization (LLO) if there is no
EBR
NOTES:
1. You can STRIKE even before the
CE via LLO
2. Registration
with
DOLE
is
necessary to conduct a STRIK
3. A chartered union cannot
conduct a strike prior to
registration to DOLE
4. A chartered local can conduct a
strike if it has submitted all the
requirements.
Q: Can there be a valid strike
without a UNION?
A: No
Q: What if a strike is initiated not
by a Labor union?
A: it is a strike BUT not a valid strike.
Q: Are violation of the CBA
automatically amounts to ULP?
A: No. It is necessary that it must be
coupled
with
malice.
(economic
provisions + malice)
Q: What happens if you conduct a
strike on the ground of grievance?
A: it is not a valid strike.
NOTE: There can be no strike if there
is no dispute with employer.
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PURPOSE:
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Q: Is it mandatory or
discretionary?
A: Both depending on the
circumstances:
1. Discretionary
Industries INDESPENSIBLE to
national interest
Sec. assumes jurisdiction or
certify to NLRC for compulsory
arbitration
EFFECT: Issuance of Return to
work order
2. Mandatory
Those
affecting
HOSPITALS,
CLINICS,
MEDICAL
INSTITUTIONS
Sec. assumes jurisdiction or
certify to NLRC for compulsory
arbitration
Responsibility of the EE/ER in
case of strike or lockout:
SKELETAL WORK FORCE
Assumption of jurisdiction from
court jurisdiction over the case
ASSUMPTION OF
COURT
JURSDICTION
JURISDICTION
Parties
do
not Parties initiate
initiate
Sec. Steps in
Q: Is it still an assumption even if a
petition is filed?
A: Yes
Assumption versus Certification
ASSUMPTION
CERTIFICATION
Secretary decides Refers the matter
the case
to the NLRC
NLRC will decide
Both
are
interventions
of
the
government that convert the issue
into a case
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order
A: Yes.
1. ULP strike - depends on the
authority deciding the case
2. Strikers
voluntarily
and
unconditionally offered to return
but refused by the employer
3. There is a RTWO and the
employees are discriminated
NOTE: No court or entity can enjoin a
strike, picket or lockout. Exceptions:
(1) Prohibited or unlawful acts are
being or about to be committed that
would cause grave or irreparable
damages; of (2) National interest.
Q: Who issues the TRO?
A: the NLRC
EMPLOYER - EMPLOYEE
RELATIONSHIP
Definitions:
Employer
- includes any person acting directly
or indirectly in the interest of an
employer
in
relation
to
an
employee and shall include the
government and all its branches,
subdivisions and instrumentalities,
all
government-owned
or
controlled
corporations
and
institutions, as well as non-profit
private
institutions,
or
organizations.3
Employee
- Includes any individual employed
by an employer.4
Q: Why is it important to
determine
employer-employee
relationship?
A: it determines the legal relationship
between the parties, and their rights
and obligations.
Q: What are the Four(4) test to
determine if there is an employeremployee relationship?
A: The 4 Fold Test are:
1. Selection and hiring
2. Payment of wages
3. Power and control
4. Control over how the employee
performs his functions
Q: Among the 4 what is the MOST
IMPORTANT and controlling?
3 NLRC, Art. 97
4 id
the
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Q:
What
is
Labor
Only
Contracting?
A: There is "labor-only" contracting
where the person supplying workers to
an employer does not have substantial
capital or investment in the form of
tools, equipment, machineries, work
premises, among others, and the
workers recruited and placed by such
person are performing activities which
are directly related to the principal
business of such employer.8
Q: What are the requisites?
A:
1. Person supplying workers to an
employer
does
not
have
substantial
capital
or
investment
2. Work is directly related to the
principal business of such
employer
Q: What is the effect of Labor Only
contracting?
A:
The
intermediary
shall
be
considered merely as an agent of the
employer who shall be responsible to
the workers in the same manner and
extent as if the latter were directly
employed by him.9
7 Section 5. D.O. No. 18-A, 2011
8 NLRC, Art. 106
Contractor,
9 Id
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Q: Is possession by contractor of
substantial capital sufficient to
prove
there
is
legitimate
contracting?
A: No. If the workers supplied by the
contractor
work
alongside
the
principals regular employees who are
performing identical work, such is an
indicium of labor-only contracting.
Q: What is controlling?
A: It is the totality of the facts and
the surrounding circumstances of
the case which is determinative of the
10 Section 27. D.O. No. 18-A, 2011
11 Section 4. D.O. No. 18-A, 2011
EMPLOYMENT STATUS
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