The Supreme Court held that the employee’s money

The Supreme Court has held that an employee-
member of a cooperative cannot join a union and
bargain collectively with her cooperative because
an owner cannot bargain with himself and his
claim would be reimbursement of his placement fee if
he paid placement fees. He is also entitled to 12%
interest for his placement fees and his salaries for the
unexpired portion of his contract which in this case is
equivalent to 11 months. [Serrano vs. Gallant
Maritime Services, Inc., March 24,2009]

SURFACE BARGAINING is defined as “going through

the motions of negotiating” without any legal intent
to reach an agreement. The determination of whether
a party has engaged in unlawful surface bargaining is a
question of the intent of the party in question, which In a case involving similar facts, he Supreme
can only be inferred from the totality of the Court held that the Labor Arbiter did not have
challenged party’s conduct both at and away from the jurisdiction because a company is an indirect
bargaining table. employer of the employees of an independent
contractor only for purposes of liability for wages
BLUE-SKY BARGAINING is defined as “unrealistic and but not for the purpose of conferring jurisdiction.
unreasonable demands in negotiations by either or
both labor and management, where neither concedes
anything and demands the impossible.” (Standard
Chartered Bank Employees Union (NUBE) v.
Confesor, 432 SCRA 308 [2004]).

Under the Labor Code, when, in his opinion, there

exists a labor dispute causing or likely to cause a
strike or lockout in an industry indispensable to
the national interest, the Secretary of Labor may
assume jurisdiction over the dispute. Such
assumption of jurisdiction carries with it an
automatic return to work order.
Under the Labor Law, in order for a dismissal to
be valid, there must be just or authorized cause
and due process must be accorded to the
employee.
The following are the requisites of a valid strike:

1) There must be a valid ground – bargaining

deadlock, unfair labor practice and union busting.
Under the Labor Law, peaceful picketing is not a
2) Notice of strike to the NCMB. strike per se.
3) Observance of a cooling off period.
4) Conducting a strike vote.
5) Submission of strike vote report to the NCMB.
6) Observance of strike ban.

In a case involving similar facts, the Supreme
Court held that the employee’s dismissal was not
valid since he was not found to be “in possession
of the prohibited substance” nor was he “impaired
by the use” thereof. Being tested positive for
marijuana is not a ground for disciplinary action
under the undertaking he signed.
The Supreme Court has held that an employee-
member of a cooperative cannot join a union and
bargain collectively with her cooperative because
an owner cannot bargain with himself and his co-
owners. (Cooperative Rural Bank, of Davao City,
Inc. v. Calleja, 165 SCRA 725, 732 [1988])

In a case involving similar facts, the Supreme

Court held that the airline company was estopped
from enforcing the manual as ground for dismissal
against an employee since it hired the employee
despite her weight of 170 pounds, in
contravention of the same manual it now invoked
and the employee had already been employed for
two years before the airline company imposed on
her the weight regulation.
[Yrasuegui v. PAL, 569 SCRA 467 [2008]).
In a case involving similar facts, the Supreme
Court held that although the employment contract
did not state a particular date, but it specifically
referred to the employee as a “project employee,”
the employee cannot be considered to have been
a regular employee (Filipinas Pre- Fabricated
Building Systems v. Puente, 453 SCRA 820
[2005]).

Under the Labor Code (Art. 264), it shall be the
duty of both parties to keep the status quo and to
continue in full force and effect the terms and
conditions of the existing agreement during the
60-day period prior to the expiration date of the
CBA during which the parties could negotiate a
new CBA and/or until a new CBA is reached by
the parties.
Under Article 128, the Secretary of Labor can
correctly order the stoppage of work of an
establishment only when non-compliance with the
law or implementing rules and regulations poses
grave and imminent danger to the health and
safety of workers in the workplace.
A: Labor-only contracting refers to an arrangement where:
1. a) i. The contractor or subcontractor does not have
substantial capital, or
ii. The contractor or subcontractor does not have
investments in the form of tools, equipment,
machineries, supervision, work premises, among
others, and
iii. The contractor’s or subcontractor’s employees
recruited and placed are performing activities which
are directly related to the main business operation
of the principal.
b) The contractor or subcontractor does not
exercise the right to control over the performance of
the work of the employee.
Under the Law on Labor Standards, if there are
two or more choices in an election, and none of
the choices got the majority of the valid votes, a
run-off election will be conducted between the two
unions that got the highest number of votes,
provided that the total number of votes obtained
by all contending unions is at least 50% of the
total votes
Under the Law on Labor Standards, there is a
valid certification election when more than the
required majority of the eligible voters cast their
votes.
The Supreme Court has held that it is the regular
court rather than the labor arbiter which has
jurisdiction when the action involves the parties'
civil or commercial relationship and not their
"employer-employee" relationship.
Generally, a contractor is presumed to be a labor-
only contractor, unless it proves that it has
the substantial capital, investment, tools and the
like. However, where the principal is the one
claiming that the contractor is a legitimate
contractor, the burden of proving the supposed
status of the contractor rests on the principal.
[Alilin v. Petron Corporation, G.R. No. 177592,
(2014)]

The law creates an employer-employee relationship
between the principal and the labor-only
contractor’s employee as if such employees are
directly employed by the principal employer, and
considers the contractor as merely the agent of the
principal. [Fonterra Brands Phils., Inc. v. Leonardo
Largado and Teotimo Estrellano, G.R. No. 205300,
(2015)]
The principal test is whether or not the project
employees were: (1) assigned to carry out a specific
project or undertaking, and (2) the duration and
scope of which were specified at the time the
employees were engaged for that project. [ALU-
TUCP v. NLRC, G.R. No. 109902, (1994)]
AUTHORIZED CAUSES
1. Installation of labor saving devices;
2. Redundancy;
3. Retrenchment to prevent losses;
4. The closing or cessation of operation of the
establishment or undertaking, unless the closing is
for the purpose of circumventing the provisions of
law; and
5. Ailment or disease. [Labor Code, arts. 297-
298(283-284)]
The primary standard is the reasonable connection
between the particular activity performed by the
employee in relation to the usual business or trade
of the employer. The test is whether the employee is
usually necessary or desirable in the usual business
or trade of the employer. Thus, when the employee
performs activities considered necessary and
desirable to the overall business scheme of the
employer, the law regards the employee as regular.
[De Leon v. NLRC, G.R. 70705, (1989)]
JUST CAUSES
1. Serious misconduct or willful disobedience by
the employee of the lawful orders of his employer
or representative in connection with his work;
2. Gross and habitual neglect by the employee of
his duties;
3. Fraud or willful breach by the employee of the
trust
4. Commission of a crime or offense by the
employee against the person of his employer or
anyimmediate member of his family or his duly
authorized representative; and
5. Other causes analogous to the foregoing. [Labor
Code, art. 296(282)]
ELEMENTS OF ABANDONMENT
1. Failure to report for work or absence without
valid or justifiable reason; and
2. A clear intention to sever the employer-
employee relationship (more determinative factor;
manifested by some overt act). [Labor v. NLRC,
G.R. No. 110388, (1995)]

Where the closure was due to serious business
loses, the Labor Code does not impose any
obligation upon the employer to pay separation
benefits. [North Davao Mining Corp. v. NLRC, G.R.
No. 112546, (1996)]
Can a law be passed to prohibit a strike?
Yes. Law may prohibit a strike but not the right to
self-organization. [JOSELITO CHAN, BAR
REVIEWER ON LABOR LAW, 563 (2014)]
A strike or lockout may legally held because of
either or both:
(1) A collective bargaining deadlock (Economic
strike); and/or
(2) An unfair labor practice act of the employer
(ULP Strike).
If the ground for the strike is not one of the
abovementioned grounds, it is deemed an illegal
strike.
A strike has been defined as a cessation of work by
employees in an effort to get more favorable terms
for themselves, or as a concerted refusal by
employees to do any work for their employer, or to
work at their customary rate of speed, until the
object of the strike is attained by the employer’s
granting the demanded concession.
Is the failure to exhaust grievance machinery and
voluntary arbitration fatal to the validity of a strike?
A: Yes. It is axiomatically provided and held that a
strike is illegal because of the failure to exhaust all
the steps in the grievance machinery and voluntary
arbitration provided in the CBA. [USAEU-FFW v. CA,
G.R. No. 169632, (2006)]
May a minority union strike?
A: No. A minority union cannot demand collective
bargaining with the employer because such right
properly belongs to the union that commands the
majority. Moreover, the defeated union cannot
lawfully undertake a strike against its employee.
[United Restauror’s Employees and Labor Union-
PAFLU v. Hon. Torres and Delta Development Corp.,
G.R. No. L-24993, (1968)]

No law allows appeal from a decision of the
Secretary of Labor, or of the NLRC, or of a
Voluntary Arbitrator. In these cases, the
petition for certiorari, prohibition, or
mandamus (Rule 65, Rules of Court) may be
lodged with the Supreme Court or the Court
of Appeals. The grounds for petition for
certiorari and/or prohibition are abuse of
discretion, or lack or excess of jurisdiction.
1. closed-shop agreement is one whereby an
employer binds himself to hire only
members of the contracting union who must
continue to remain members in good
standing to keep their jobs.
2. An agency shop is an agreement whereby
employees must either join the union or pay
to the union as exclusive bargaining agent a
sum equal to that paid by the members. It
prevents a situation where nonunion
members enrich themselves at the expense
of union members.
What is the period of appeals for decisions of the
Labor Arbiter?
A: Decisions, awards, or orders of the Labor Arbiter
shall be final and executory unless appealed to the
Commission by any or both parties within ten (10)
calendar days from receipt thereof; and in case of
decisions or resolutions of the Regional Director of
the Department of Labor and Employment pursuant
to Article 129 of the Labor Code, within five (5)
calendar days from receipt thereof. [2011 NLRC
RULES OF PROCEDURE, rule VI, §1]
Conciliation consists in the efforts of a third
party — someone other than the immediate
disputants — to assist the parties to end
their dispute perhaps by condoning each
other’s fault or finding a give-and-take
compromise. Mediation, there is also
conciliation but a mediator, within his
authority, takes a more active role than a
conciliator in searching for and formulating
a solution. Arbitration is a dispute
resolution mode more determinative than
conciliation or mediation but less
formalistic or technical than litigation.
GROUNDS FOR VALID CE
1. That a petition questioning the majority
status of the incumbent bargaining agent is
filed before the DOLE within the 60-day
period;
2. That such petition is verified; and
3. That the petition is supported by the
written consent of at least 25% of all the
employees in the bargaining unit. [TUPAS-
WFTU v. Laguesma, G.R. No. 102350,
(1994)]
When is an employer not guilty of ULP for
contracting out work?
A: An employer is not guilty of an unfair labor
practice in contracting work out for business
reasons such as decline in business, the inadequacy
of his equipment, or the need to reduce cost, even if
the employer’s estimate of his cost is based on a
projected increase attributable to unionization. In
such a case the real issue is not whether the
employer’s business reasons are good or bad, but
whether they actually motivated the contracting
out.
What are the requisites for a valid termination
based on a union security clause?
A: The employer needs to determine and prove
that:
1. The union security clause is applicable;
2. The union is requesting for the enforcement
of the union security provision in the CBA;
and
3. There is sufficient evidence to support the
unions decision to expel the employee from
the union [Alabang Country Club v. NIRC,
G.R. No. 170287, (2008)]
Under the Labor Code, any employee who
has rendered at least one year of service,
whether such service is continuous or broken,
shall be considered a regular employee.
The Supreme Court has held that the right to
join a union includes the right not to join a
union specially if based on religious beliefs.
(Victoriano vs. Elizalde Rope Workers Union,
September 12, 1974)
WHEN IS THE FREEDOM PERIOD
The last 60 days of the 5-year lifetime of a CBA
immediately prior to its expiration. During the
freedom period, the parties may not only renew the
existing collective bargaining agreement but may
also propose and discuss modifications or
amendments thereto.
The Supreme Court has held that religious
freedom as a constitutional right cannot be
stifled by a mere CBA provision.
The Supreme Court has held that while a
company is an indirect employer of the
employees of an independent contractor
under the Labor Code, the company should
be considered an indirect employer only for
purposes of liability for wages but not for the
purpose of conferring jurisdiction to the Labor
Arbiter.
Under the Labor Code, the Secretary of Labor
can order the stoppage of work of an
establishment only when non-compliance with
the law or implementing rules and regulations
poses grave and imminent danger to the
health and safety of workers in the workplace.
Under the Labor Law, an employer is free to
impose a retirement age less than 65 for as
long as it has the employees’ consent
otherwise a termination based on a retirement
plan would amount to an illegal dismissal.
Under the Labor Law, the stipulation in the
CBA that illegal termination disputes must be
resolved by a voluntary arbitrator or panel of
voluntary arbitrators must be express and
clear; otherwise the stipulation is not
effective.
Here the stipulation in the CBA regarding
submission to a voluntary arbitrator or panel
of voluntary arbitrators is not express and
clear since it is a general phrase which says
“all labor disputes.”
The RTC has no jurisdiction to issue an
injunction. The Labor Code provides that no
injunction in any case involving a labor
dispute shall be issued by any court. [Article
254 of the Labor Code].
The Supreme Court has held that jurisdiction
of the Labor Arbiters and the NLRC under Art.
217(5) of the Labor Code is limited to
disputes arising from an employer- employee
relationship which can be resolved by
reference only to Labor laws.
Under the freedom-period rule in Labor
Standards, a petition for certification election
must be filed within 60 days prior to the
expiration of the CBA’s first five years.
I will take the following steps prior to its

1) I will serve a written notice on both the

workers and the Regional Office of the
Department of Labor and Employment at The Supreme Court has held that it is the
least one month before the intended date of prerogative of management to cease
closure. operations since no business can be
compelled to continue in operation.
2) I will provide proof of XYZ Corporation’s
serious business losses and financial
reverses.

Under the Labor Code, the Secretary of Labor

may assume jurisdiction over a labor dispute
in an industry indispensable to the national
interest when in his opinion the labor dispute
is likely to cause a strike.