For Labor Review class: Coverage of Pre-final examination on October 20, 2018

1. Non-impairment clause of the 1987 Constitution in relation to the Labor Code

2. Elements of Ee-er relations and its effect and requirements

3. Recruitment, Liabilities and Illegal recruitment under the Migrant workers act and
Labor Code
A. RECRUITMENT OF LOCAL AND
MIGRANT WORKERS
Policy of Selective Deployment
The State shall allow the deployment of overseas Filipino workers only in countries where the rights of
Filipino migrant workers are protected. The government recognizes any of the following as a guarantee on the
part of the receiving country for the protection of the rights of overseas Filipino workers:
(a) It has existing labor and social laws protecting the rights of workers, including migrant workers;
(b) It is a signatory to and/or a ratifier of multilateral conventions, declarations or
resolutions relating to the protection of workers, including migrant workers; and
(c) It has concluded a bilateral agreement or arrangement with the government on the protection of the rights
of overseas Filipino Workers: Provided, That the receiving country is taking positive, concrete measures to
protect the rights of migrant workers in furtherance of any of the guarantees under subparagraphs (a), (b) and
(c) hereof. [Sec. 3, RA 8042, as amended]
4. Arts. 82-97 (p218) B1

Q: Who are the employees that are covered by the conditions of employment?
A: GR: It applies to all Ee’s in all establishments.
XPN:
1. Gov’t employees
2. Managerial employees
3. Field personnel
4. The employers family members who depend on him for support
5. Domestic helpers and persons in the personal service of another, and
6. Workers who are paid by results as determined under DOLE regulations
Q: Who are government employees (Ees)?
A: They are Ees of the:
1. National Government
2. Any of its political subdivisions
3. Including those employed in GOCCs with original charters.

Q: What law governs government Ees?

A: The Civil Service Law, rules and regulations.
Q: Who are managerial Ees?
A: Those whose primary duty consists of the management of the establishment in which they are employed or a
department or subdivision thereof
1. Customarily or regularly direct the work of 2 or more Ees
2. Has the authority to hire or fire other Ees of lower rank; or their suggestions and recommendations as to the
hiring and firing and as to the promotion or any change of status of other Ees are given particular weight.
3. hours worked to activities which are not directly and closely related to performance of the work described. (Art.
82[2])

Q: Why are managerial Ees not covered?

A: They are employed by reason of their special training, expertise or knowledge and for positions requiring the
exercise of discretion and independent judgment. Value of work cannot be measured in terms of hours.
Q: Who are field personnel?
A: They are:
1. non‐agricultural employees
2. who regularly perform their duties
3. away from the principal place of business or branch office of the employer; and
4. whose actual hours of work in the field cannot be determined with reasonable certainty.

Q: Who are workers paid by results?

A: They are:

1. paid based on the work completed; and

2. not on the time spent in working
3. including those who are paid on piece‐work, “takay”, “pakiaw”, or task basis if their output rates are in accordance
with the standards prescribed.

Q: Who are domestic helpers and persons in the personal service of another?
A: Those who:
1. perform services in the employers (Er) home which are usually necessary or desirable for the maintenance or
enjoyment thereof; or
2. minister to the personal comfort, convenience or safety of the Er as well as the members of his Ers household.

Q: A house personnel was hired by a ranking company official to maintain a staff house provided for the official. The
personnel is being paid by the company itself. Is the house personnel a domestic servant of the company official?
A: No, the personnel is not a domestic helper but a regular employee of the company.
Q: What are the 3 groups of employees (Ees) under the LC?

A:
1. Managerial Ee ‐ One who is vested with the powers or prerogatives to lay down and execute management policies
and/or to hire, transfer, suspend, lay‐off, recall, discharge, assign or discipline Ees.
2. Supervisory Ee ‐ those who in the interest of the Er, effectively recommend such managerial actions if the exercise
of such authority is not merely routinary or clerical in nature but requires the use of independent judgment.
3. Rank‐and‐File Ee ‐ all Ees not falling within any of the above definitions.
5. Arts. 110-111

Q: What is bankruptcy?
A: “Bankruptcy” is referred to in the Philippines as “Insolvency”. It denotes the state of an entity or person that has liabilities
greater than its assets.
Q: What happens if the Er business experiences bankruptcy or liquidation?

A: His workers shall enjoy first preference as regards their wages and monetary claims, any provision of the law to the contrary
notwithstanding.

Q: What are the principles underlying the preference?

1. Declaration of bankruptcy or judicial liquidation before enforcement of the worker’s preferential right;
2. Filing of claims by workers;
3. The right does not constitute a lien to the property of the insolvent debtor in favor of workers. (DBP vs. NLRC, G.R. No.
82763 Mar. 19, 1990 and G.R. No. 97176, Mar. 18, 1993);
4. The preference in favor of the Ees applies to discharge of funds. The preference does not only cover unpaid wages, it also
extends to termination pay and other monetary claims;
Note: Termination pay, after all, is considered as additional remuneration for services rendered to the employer for a
certain period of time; it is computed on the basis of length of service.
Applicable only to ordinary preferred credit, hence, must yield to special preferred credits.

Q: Are workers preferred than the tax claims of the Gov’t?

A: No. Art. 110 did not sweep away the overriding preference accorded under the scheme of the Civil Code to tax claims of the
government.

Q: Is worker preference applicable if the Er corporation is under rehabilitation?

A: No. Suspension of payments order by the SEC mandates the holding in abeyance the filing or the proceedings on labor cases
against an Er who is under rehabilitation to give the Er the chance to concentrate on how to revive his business and not be
distracted in trying to defend itself in labor cases filed against it.

Q: Premiere Bank, being the creditor‐mortgagee of XYZ & Co., a garment firm, foreclosed the hypothecated assets of the
latter. Despite the foreclosure, XYZ & Co. continued its business operations. A year later, the bank took possession of the
foreclosed property. The garment firm's business operations ceased without a declaration of bankruptcy. Caspar, an employee
of XYZ & Co., was dismissed from employment due to the cessation of business of the firm. He filed a complaint against XYZ &
Co. and the bank. The Labor Arbiter, after hearing, so found the company liable, as claimed by Caspar, for separation pay.
Premiere Bank was additionally found subsidiarily liable upon the thesis that the satisfaction of labor benefits due to the Ee is
superior to the right of a mortgagee of property. Was the Labor Arbiter correct in his decision?

A: No. The preference of credits established in Art. 110 of the LC cannot be invoked in the absence of any insolvency
proceedings, declaration of bankruptcy, or judicial liquidation.). (2003 Bar Question)
Q: Distinguish the mortgage created under the Civil Code from the right of 1st preference created by the LC as regards the
unpaid wages of workers. Explain.

A: A mortgage directly subjects the property upon which it is imposed, whoever the possessor may be, to the fulfillment of the
obligation for which it was constituted. It creates a real right which is enforceable against the whole world. It is therefore a lien
on an identified real property.

Mortgage credit is a special preferred credit under the Civil Code in the classification of credits. The preference given by
the LC when not attached to any specific property is an ordinary preferred credit. (1995 Bar Question)

Q: What are the limitations to the assessment of attorney’s lien against the culpable party?

1. In case of unlawful withholding of wages – 10% of the amount of wages to be recovered.

2. It shall be unlawful for any person to demand or accept, in any judicial or administrative proceedings for the recovery of
wages, atty’s fees that exceed 10% of the amount of wages recovered.
Note: The prohibition on atty’s lien refers to proceedings for recovery of wages and not to services rendered in connection with
CBA negotiations. In the latter case, the amount of atty’s fees may be agreed upon by the parties and the same is to be charged
against union funds as provided for in Art. 222 of the Labor Code.

Q: What is ordinary attorney’s fee?A: It is the reasonable compensation paid to a lawyer by his client for the legal services he
has rendered.

Q: What is extraordinary attorney’s fee?

A: It is the indemnity for damages ordered by the court to be paid by the losing party in litigation and is not to be paid to the lawyer but to the
client, unless they have agreed that the award shall pertain to the lawyer as an additional compensation or as a part thereof.

Q: Santiago, a project worker, was being assigned by his Er, Bagsak Builders, to Laoag, Ilocos Norte. Santiago refused to comply with the
transfer claiming that it, in effect, constituted a constructive dismissal because it would take him away from his family and his usual work
assignments in Metro Manila. The Labor Arbiter (LA) found that there was no constructive dismissal but ordered the payment of separation
pay due to strained relations between Santiago and Bagsak Builders plus atty’s fees equivalent to 10% of the value of Santiago's separation
pay.

Is the award of atty's fees valid? State the reasons for your answer.

A: No, the award of atty’s fees is not valid. According to the LC (Art. 111 [a]), atty’s fees may be assessed in cases of unlawful withholding of
wages which does not exist in the case. The worker refused to comply with a lawful transfer order, and hence, a refusal to work. Given this fact,
there can be no basis for the payment of atty's fees.

Could the LA have validly awarded moral and exemplary damages to Santiago instead of atty's fees? Why?

A: No, moral and exemplary damages can be awarded only if the worker was illegally terminated in an arbitrary or capricious manner.

AWARD OF ATTORNEYS FEES TO AN ILLEGALLY DISMISSED EMPLOYEE, PROPER?

The award of attorney’s fees is proper, and there need not be any showing that the employer acted in maliciously or in bad faith when it
withheld the wages. There need only be showing that the lawful wages were not paid accordingly.
6. Just and authorize causes and their effects (NOTEBOOK)

7. Effects of Illegal termination (p.456 B2) (p55)

Just read the book

8. Preventive suspension

Q: What is preventive suspension?

A: During the pendency of the investigation, the Er may place the Ee under preventive suspension leading to termination when there is an
imminent threat or a reasonable possibility of a threat to the lives and properties of the Er, his family and representatives as well as the
offender’s co‐workers by the continued service of the Ee.

Q: What is the duration of preventive suspension?

A: It should not last for more than 30 days. The Ee should be made to resume his work after 30 days. It can be extended provided the
Ee’s wages are paid after the 30‐day period.

9. Remedies from the Decision of the LA and NLRC

10.Jurisdiction of LA, BLR and VA

Q: What is the distinction between the jurisdiction of the labor arbiter (LA) and the National Labor Relations Commission
(NLRC)?

A:
1. The NLRC has exclusive appellate jurisdiction on all cases decided by the LA.
2. The NLRC does not have original jurisdiction on the cases over which the LA have original and exclusive jurisdiction.
3. The NLRC cannot have appellate jurisdiction if a claim does not fall within the exclusive original jurisdiction of the LA.

Q: What is the nature of jurisdiction of labor arbiters (LAs)?

A: It is original and exclusive. LAs have no appellate jurisdiction.

Q: What are the cases falling under the jurisdiction of labor arbiters (LAs)?

A: Exclusive and original jurisdiction to hear and decide the following cases involving all workers:

1. ULP cases
2. Termination disputes
3. If accompanied with a claim for reinstatement, those that workers file involving wages, rates of pay, hours of work and other
terms and conditions of employment
4. Claims for actual, moral, exemplary and other forms of damages arising from Er‐Ee relations
5. 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 and maternity benefits, all other claims arising from
Er‐Ee relations, including those of persons in domestic or household service, involving an amount exceeding P5000
regardless of whether accompanied with a claim for reinstatement
7. Monetary claims of overseas contract workers arising from Er‐Ee relations under the Migrant Worker’s Act of 1995 as
amended by RA 10022

8.Wage distortion disputes in unorganized establishments not voluntarily settled by the parties pursuant to RA 6727
9.Enforcement of compromise agreements when there is non‐compliance by any of the parties pursuant to Art. 227 of the Labor
Code (LC), as amended; and
10. Other cases as may be provided by law

Note: Although the provision speaks of exclusive and original jurisdiction of LAs, the cases enumerated may instead be
submitted to a voluntary arbitrator by agreement of the parties under Art. 262 of the LC. The law prefers voluntary over
compulsory arbitration.

Q: What is the nature of the cases which the labor arbiter (LA) may resolve?
A: The cases that an LA can hear and decide are employment related. Where no Er‐Ee relationship exists between the parties
and no issue is involved which may be resolved by reference to the LC, other labor statutes, or any collective bargaining
agreement, it is the RTC that has jurisdiction.

The LA has jurisdiction over controversies involving Ers and Ees only if there is a “reasonable causal connection” between the
claim asserted and the Er‐Ee relations. Absent such link, the complaint is cognizable by the regular court.

Q: Do labor arbiters exercise concurrent jurisdiction with the NLRC?

A: Yes, with respect to contempt cases.

Q: What are the cases referred to grievance machinery and voluntary arbitration?

A: Disputes arising from the:

1. Interpretation or implementation of the CBA
2. Interpretation or enforcement of company personnel policies

Q: What is the extent of the jurisdiction of the labor arbiter (LA) if there are unresolved matters arising from the
interpretation of the CBA?
A:
GR: LAs have no jurisdiction over unresolved or unsettled grievances arising from the interpretation or implementation of the
CBA and those arising from the interpretation or enforcement of company personnel policies.

Q: What are the cases which do not fall under the jurisdiction of the labor arbiters (LA)?
A: LAs have no jurisdiction over the ff:

1. Foreign governments
2. Int’l agencies
3. Intra‐corporate disputes which fall under P.D. 902‐A and now falls under the jurisdiction of the regular courts pursuant to
the new Securities Regulation Code
4. Executing money claims against government
5. Cases involving GOCCs with original charters which are governed by civil service law, rules or regulations Local water district
7.The aggregate money claim does not exceed P5000 and without claim for reinstatement
8.Claim of employee (Ee) for cash prize under the Innovation Program of the company, although arising from Er‐Ee relationship,
is one requiring application of general civil law on contracts which is within the jurisdiction of the regular courts
9.Cause of action based on quasi‐delict or tort which has no reasonable connection with any of the claims enumerated in
Art.217 of the LC
10.Complaint arising from violation of training agreement

Q: May dismissed employees (Ees) collect their wages during the period between the Labor Arbiter’s (LA’s) order of
reinstatement pending appeal and the NLRC decision overturning that of the LA?

A: Yes. Par. 3 of Art. 223 of the Labor Code provides that the decision of the LA reinstating a dismissed or separated Ee, insofar as
the reinstatement aspect is concerned, shall immediately be excutory, pending appeal.

Even if the order of reinstatement of the LA is reversed on appeal, it is obligatory on the part of the employer (Er) to reinstate
and pay the wages of the dismissed Ee during the period of appeal until reversal by the higher court. On the other hand, if the Ee
has been reinstated during the appeal period and such reinstatement order is reversed with finality, the Ee is not required to
reimburse whatever salary he received for he is entitled to such, more so if he actually rendered services during the period.

Unless there is a restraining order, it is ministerial upon the LA to implement the order of reinstatement and it is mandatory on
the Er to comply therewith.

Q: Some disgruntled members of Bantay Labor Union filed with the Regional Office of the DOLE a written complaint against
their union officers for mismanagement of union funds. The Regional Director (RD) did not rule in the complainants' favor. Not
satisfied, the complainants elevated the RD’s decision to the NLRC. The union officers moved to dismiss on the ground of lack
of jurisdiction. Are the union officers correct? Why?
A: Yes, the union officers are correct in claiming that the NLRC has no jurisdiction over the appealed ruling of the RD. in Barles v.
Bitonio, G.R. No. 120220, June 16, 1999, the SC ruled:

“Appellate authority over decisions of the RD involving examination of union accounts is expressly conferred on the Bureau of
Labor Relations (BLR) under the Rule of Procedure on Mediation‐ Arbitration.”

Sec. 4. Jurisdiction of the BLR — (b) The BLR shall exercise appellate jurisdiction over all cases originating from the RD involving
complaints for examination of union books of accounts.

The language of the law is categorical. Any additional explanation on the matter is superfluous." (2001 Bar Question)

Q: What is covered by the BLR’s jurisdiction and functions?

A: The BLR no longer handles “all labor management disputes”; rather its functions and jurisdiction are largely confined to:
1. Union matters
2. Collective bargaining registry and
3. Labor education.

Note: Jurisdiction over labor management problems or disputes is also exercised by other offices:
1. DOLE Regional Offices
2. Office of the Secretary of Labor
3. NLRC
4. POEA
5. OWWA
6. SSS‐ECC
7. RTWPB
8. NWPC
9. Regular courts over intra‐corporate disputes.

Q: Who is a mediator‐arbiter?
A: An officer in the Regional Office or Bureau authorized to hear, conciliate and decide representation cases or assist in the
disposition of intra or inter‐union disputes.
Q: What kinds of cases fall within BLR’s jurisdiction?
A: The BLR has original and exclusive jurisdiction over:
1. Inter‐union disputes
2. Intra‐union disputes
3. Other related labor relations disputes

Q: What is the coverage of inter/intra‐union disputes?

A: They shall include:
1. Conduct or nullification of election of union and workers’ association officers
2. Audit/accounts examination of union or workers’ association funds
3. Deregistration of collective bargaining agreements (CBAs)
4. Validity/invalidity of union affiliation or disaffiliation
5. Validity/invalidity of acceptance/ non‐acceptance for union membership
6. Validity/invalidity of voluntary recognition
7. Opposition to application for union or CBA registration
8. Violations of or disagreements over any provision of the constitution and by‐laws of union or workers’ association
9. Disagreements over chartering or registration of labor organizations or the registration of CBAs;
10. Violations of the rights and conditions of membership in a union or workers’ association;
11. Violations of the rights of legitimate labor organizations (LLO), except interpretation of CBAs;
12. Validity/invalidity of impeachment/ expulsion/suspension or any disciplinary action meted against any officer and member,
including those arising from non‐compliance with the reportorial requirements under Rule V;
13. Such other disputes or conflicts involving the rights to self‐organization, union membership and CB –
a. Between and among LLO and
b. Between and among members of a union or workers’ association.

Q: What are the administrative functions of the Bureau Labor Relations (BLR)?

A:
1. Regulation of the labor unions
2. Keeping the registry of labor unions
3. Maintenance of a file of the CBA
4. Maintenance of a file of all settlements or final decisions of the SC, CA, NLRC and other agencies on labor disputes

11.Check-off, requisites of special and extraordinary assessment

Q: What is check‐off?

A: It is a method of deducting from an Ee’s pay at a prescribed period, the amounts due the union for fees, fines and
assessments.

Deductions for union service fees are authorized by law and do not require individual check‐off authorizations.

Q: What is the nature and purpose of check‐off?

A: 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.(Art. 277[a])

Q: What are the requisites of a valid check‐off?

A:
GR: No special assessments, atty’s fees, negotiation fees or any other extraordinary fees may be checked off from any amount
due to an employee (Ee) without individual written authorization duly signed by the Ee.

The authorization should specifically state the:

1. Amount
2. Purpose &
3. Beneficiary of the deduction.

XPNs:
1. For mandatory activities under the LC
2. For agency fees
3. When non‐members of the union avail of the benefits of the CBA:
a. Non‐members may be assessed union dues equivalent to that paid by union members;
b. Only by board resolution approved by majority of the members in general meeting called for the purpose.

Q: What are special assessments or extraordinary fees?

A: These are assessments for any purpose or object other than those expressly provided by the labor organization’s
constitution and by‐laws.

Q: What are the requisites for a valid levy of special assessment or extraordinary fees?

1. Authorization by a written resolution of the majority of all members at the general membership meeting duly called for that
purpose;
2. Secretary’s record of the minutes of the meeting, which must include the:
a. List of members present
b. Votes cast
c. Purpose of the special assessments
d. Recipient of such assessments;
3. Individual written authorization to check‐off duly signed by the Ee concerned – to levy such assessments.

Q: What is the effect of failure to strictly comply the requirements set by law?
A: It shall invalidate the questioned special assessments. Substantial compliance of the requirements is not enough in view of
the fact that the special assessment will diminish the compensation of union members.

Q: Who has jurisdiction over check‐off disputes?

A: Being an intra‐union dispute, the Regional Director of DOLE has jurisdiction over check off disputes.

Q: Distinguish check‐off from special assessments.

A: Check‐off Special Assessment

How approved
 (Union Dues) By written resolution approved by majority of all the
By obtaining the individual written authorization duly signed by the Ee which must specify: members at the meeting called for that purpose.
1. Amount
2. Purpose
3. Beneficiary

Exception to such requirement

12.Forms of ULP by the employer

Q: What are the ULP that may be committed by Ers?

1. Interference
2. Yellow dog condition
3. Contracting out
4. Company unionism
5. Discrimination for or against union membership
6. Discrimination because of testimony
7. Violation of duty to bargain
8. Paid negotiation
9. Gross violation of CBA

(1) Interference/ Restraint/ Coercion

An act which restrains, coerces, or interferes with employees in the exercise of their right to self‐organization is an Unfair
Labor Practice.

Interrogation
General rule: employer may interrogate its employees regarding their union affiliation for legitimate purposes and with the
assurance that no reprisals would be taken against the unionists.
Exception: when interrogation interferes with or restrains employees' right to selforganization.

Speech
The acts of a company which subjects a union to vilification and its participation in soliciting membership for a competing
union are also acts constituting a ULP.

An employer may not send letters containing promises or benefits, nor of threats of obtaining replacements to individual
workers while the employees are on strike due to a bargaining deadlock. This is tantamount to interference and is not
protected by the Constitution as free speech.

Espionage
Espionage and/or surveillance by the employer of union activities are instances of interference, restraint or coercion of
employees in connection with their right t0 organize, form and join unions as to constitute unfair labor practice. […] The
information obtained by means of espionage is invaluable to the employer and can be used in a variety of cases to break a
union.

(2) Yellow Dog Contracts

Yellow dog contracts require, as a condition of employment that a person or an employee shall not join a labor organization
or shall withdraw from one to which he belongs.
Requisites of a Yellow Dog Contract:
(1) a representation by the employee that he is not a member of a labor organization
(2) a promise by the employee that he will not join a union
(3) a promise by the employee that upon joining a labor organization, he will quit his employment

3) Contracting Out
General rule: contracting out is not a ULP
Exception:
 (1) contracted‐out services or functions are performed by union members
AND
(2) contracting out will interfere with, restrain, or coerce employees in the exercise of their right to selforganization.
[Art. 259 (c)]

4) Company Union
"Company union" means any labor organization whose formation, function or administration has been assisted by any act
defined as unfair labor practice by this Code.
The employer commits ULP if it initiates, dominates, or otherwise interferes with the formation or administration of any
labor organization.
Example: giving out financial aid to any union's supporters or organizers.

5) Discrimination – Encourage/
Discourage Unionism
General rule: it is ULP to discriminate in regard to wages, hours of work and other terms and conditions of employment in
order to encourage or discourage membership in any labor organization.

Exception [Union Security Clause]:

Nothing in this Code or in any other law shall stop the parties from requiring membership in a recognized collective
bargaining agent as a condition for employment. [Art. 259 (e)]

Exception to exception:
Those employees who are already members of another union at the time of the signing of the collective bargaining
agreement.

6) Testimony
It is an act of ULP by an employer to dismiss, discharge or otherwise prejudice or discriminate against an employee for
having given or being about to give testimony under
this Code. [Art. 259 (f)]

7) Violate duty to bargain collectively

Duty to bargain collectively is a continuous process, non‐compliance constitutes ULP.
Collective bargaining does not end with the execution of an agreement, being a continuous process, the duty to bargain
necessarily imposing on the parties the obligation to live up to the terms of such a collective bargaining agreement if
entered into, it is undeniable that non‐compliance therewith constitutes an unfair labor practice.

13. Participating in a lawful and illegal strike and its effects

As to legality
(1) Legal strike – one called for a valid purpose and conducted through means allowed by law.
(2) Illegal strike – one staged for a purpose not recognized by law, or if for a valid purpose, conducted
through means not sanctioned by law.

Effect of Illegality / Liability of participating members/officers of the union

1) Ordinary Striking Worker – cannot be terminated for mere participation in an illegal strike; proof must
be adduced showing that he or she committed illegal acts during the strike.
2) Participating Union Officer – may be terminated, not only when he actually commits an illegal act
during a strike, but also if he knowingly participates in an illegal strike

The strikers who refuse to accept the new conditions and are consequently refused
reinstatement are entitled to the losses of pay they may have suffered by reason of the
employer’s discriminatory acts from the time they were refused reinstatement.
 14. Kinds of Union Security clause(P.226)

15. Kinds of Certification election

1. Certification election in organized establishment- CE may be filed, questioning the majority status of the
incumbent bargaining agent;
2. CE in unorganized establishment- CE can be filed and it shall automatically be conducted by the med-
arbiter
3. Petition for CE filed by an employer- when requested to bargain collectively

CE is the sole concern of the workers and employers are regarded as nothing more than a bystander
with no right to interfere at all the election, the only exception being where the employer has to file a
petition for CE because it is requested to bargain collectively.
16.Jurisdictional pre-conditions to set in motion the mechanics of CBA

Jurisdictional Preconditions of Duty to Bargain

(1) Possession of the status of majority representation of the employees’ representative in
accordance with any of the means of selection or designation provided for by the Code
(2) Proof of majority representation by the representative labor organization
(3) Demand to bargain by the labor organization
The employer is only bound to bargain with the appropriate collective bargaining
agent.
An employer asked by a labor organization (which is not the SEBA of the establishment)
to bargain collectively may file a petition for certification election to ascertain the will
of the bargaining unit or it may voluntarily recognize the labor organization in proper
circumstances.

17. Grounds to deny Certification election (p.304)

1. Contract bar rule
2. Oneyear bar rule
3. Deadlock bar rule
4. Charge of company unionism rule
5. Outside of the freedom period rule
6. Negotiation bar rule
7. Appeal bar rule
8. Not listed in the registry rule
 18.Requirements of CBA and its lifetime

19.Termination of OFW and its effect

In case of termination of overseas employment without just, valid or authorized cause as defined by law
or contract, the worker shall be entitled to the full reimbursement of his placement fee with interest at
twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment
contract or for three (3) months for every year of the unexpired term, whichever is less.
20.Instances to pay Separation pay

Separation pay is defined as the amount that an employee receives at the time of his
severance from the service and is designed to provide the employee with the wherewithal
during the period that he is looking for another employment.

21.Requirements to declare a strike

Requirements for a declaration of a strike in a strike vote

1) approval by a majority of the total union membership in the bargainingunit concerned

2) approval is obtained by secret ballot in a meeting/referendum called for the purpose

The requirements for a valid strike or lockout are as follows:

1. It must be based on a valid and factual ground;

2. A strike or lockout NOTICE shall be filed with the National Conciliation and Mediation Board (NCMB) at least 15 days before
the intended date of the strike or lockout if the issues raised are unfair labor practices, or at least 30 days before the
intended date thereof if the issue involves bargaining deadlock.

3. In cases of dismissal from employment of union officers duly elected in accordance with the union constitution and by‐laws,
which may constitute UNION BUSTING where the existence of the union is threatened, the 15‐day cooling‐off period shall
not apply and the union may take action immediately after the strike vote is conducted and the result thereof submitted to
the Department of Labor and Employment.
4. A strike must be approved by a majority vote of the members of the Union and a lockout must be approved by a majority
vote of the members of the Board of Directors of the Corporation or Association or of the partners in a partnership,
obtained by secret ballot in a meeting called for that purpose.

5. A strike or lockout VOTE shall be reported to the NCMB‐DOLE Regional Branch at least 7 days before the intended strike or
lockout subject to the cooling‐off period.

6. In the event the result of the strike/lockout ballot is filed within the cooling‐off period, the 7‐day requirement shall be
counted from the day following the expiration of the cooling‐off period. In case of dismissal from employment of union officers
which may constitute union busting, the time requirement for the filing of the Notice of Strike shall be dispensed with but the
strike vote requirement, being mandatory in character, shall “in every case” be complied with.
7. The dispute must not be the subject of an assumption of jurisdiction by the President or the Secretary of Labor and
Employment, a certification for compulsory arbitration, or submission to compulsory or voluntary arbitration nor a subject of a
pending case involving the same grounds for the strike or lockout.

1. GENERAL MILLING CORPORATION vs. HON. COURT OF APPEALS, GENERAL MILLING

CORPORATION INDEPENDENT LABOR UNION (GMC-ILU), and RITO MANGUBAT [G.R. No. 146728. February
11, 2004]

2. Kawashima