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LABOR REVIEW 1 ST SEM 2013-2014 Atty. Ungos

July 2, 2013

LEGITIMIZING THE UNION

The start of the collective bargaining process is organizing the union. Now having organized the union is not enough to bargain collectively. The union has to be legitimized, and how do you legitimize a union. Now there are two ways.

A. Affiliation with a federation

B. Independent registration

If you look at the definition of a legitimate labor organization, it has been defined as a labor organization that has been registered with the department of labor and employment or a branch thereof.

It is the registration with the department of labor employment that makes the labor organization a legitimate labor organization.

Suppose the union does not want to register itself? Now if the union does not want to undergo the rigors of registration, it can affiliate with a federation.

If the union affiliates with a federation it need not register provided that the federation is registered.

We may recall that a federation is composed of atleast 10 locals or chapters which are collective bargaining agents.

Now as i have told you earlier, it is the registration with the DOLE that makes a labor organization legitimate. If you organize the union as a corporation, it will not make it a legitimate labor organization. It will only give it legal personality as a corporation.

Now when does a union acquire legitimate status? You have to make a distinction. In case of an independent union (has its own registration) it becomes legitimized upon the issuance of the certificate of registration. Now when it comes to local chapters (those that are attached to a mother federation)

legitimacy is acquired upon the issuance of the charter certificate and upon the submission of the documentary requirements to the DOLE. It acquires legitimacy upon submission of the documentary requirements.

May the issuance of the charter certificate confer legitimacy upon a local chapter? For purposes of exercising the rights of legitimate labor organizations. No. But for the purpose of filing a petition for certification election. Yes it will be considered as a legitimate labor organization. But until the documentary requirements are submitted to the DOLE, it cannot exercise the other rights accorded to legitimate labor organizations, such as the right to own property, the right to be exempt from certain taxes. Those cannot be exercised by a local chapter which has not submitted the documentary requirements to the department of labor and employment.

Now to register a union ( independent union) there are certain requirements to be complied with.

Submit the documentary requirements. This are the documents that must. Be submitted. The first thing to do is to file an application for registration and together with the application is a statement indicating the name of the union, the address of the union, the names and addresses of its officers and it should also state that it is not a local chapter or affiliated with a federation and they should also attach the minutes of the organizational meeting and the list of the employees who participated in the meeting, the financial reports except if the union has been existing for less than 1 year, the constitution and by laws, and ofcourse the payment of the registration fee.

And take note. This is very important. All of the documentary requirements must be certified under oath by the secretary or treasurer of the union and attested by the president of the union. Both requirements must concur. If the documentary requirements was certified under oath by the secretary or treasurer of the union but not attested to by the president, it is a defect and the union will not be registered. And if it was registered, the registration of the union is considered defective and the registration may be impeached. The two requirements must concur. If the two requirements does not concur, it will be fatal to the acquisition of legitimate status of the labor organization.

Now with regard to a federation, aside from the documentary requirements that I have mentioned earlier it is also required to submit a statement that it has 10 local chapters and each of which must be a collective bargaining agent and of course it should also contain the names and addresses of the companies where the locals are collective bargaining agents.

Now where should the application for registration be filed?

If what is sought to be registered is an independent union, it should be filed with the

regional office of the department of labor. If what is sought to be registered is a federation, it should be filed with the BLR.

Now can the labor organization file a petition for certification election while waiting for the approval of its registration?

Yes it can already file for a petition for certification election. The approval of a petition for certification election is a ministerial duty. Once the requirements are complied with there is no choice but to approve the registration. Now suppose the department of labor refused to approve the petition for registration? The remedy is mandamus because the approval of the registration is a ministerial duty. You cannot file certiorari because it refers to the exercise of judicial functions and approval of the registration does not involve any judicial function.

Now once the registration is approved, the union may now exercise the rights accorded to a legitimate labor organization. First and foremost of which is to represent the employees within the bargaining unit in collective bargaining and to act as representative of its members in the collective bargaining, it can now sue and be sued, it can now own property, real or personal. And once the labor organization is certified as the collective bargaining representative, it can now ask for the financial statement of the company during CBA negotiations.

Now there are certain circumstances where the application for registration be denied. The grounds for the denial are the non compliance of the certification and attestation requirements, falsification of the documentary requirements, failure to comply with the documentary requirements within 30 days upon notice.

Failure to submit the requirements does not automatically result in the denial of the registration, the department of labor will send a notice and when the union did not submit the requirements within 30 days upon notice the registration will be denied.

How about in the other cases when the registration is denied? What will be your remedy? The remedy is to appeal. If the registration is denied by the regional office of the Dole, appeal to the BLR and if the denial is by the BLR, appeal to the secretary of labor.

(Illustration ni sir sa board)

Independent union Regional office of DOLE - BLR Can the decision of the BLR in its appellate jurisdiction be appealed to the secretary of labor? No. (Pag original jurisdiction langdawng BLR tsakapwedemagappealsa secretary of labor e.g. Registration of a federation or national union) What now is the remedy? The court of appeals by way of special civil action of certiorari.

Federation BLR- secretary of labor Court of appeals by way of special civil action on certiorari.

Now the grounds for the cancellation of the registration is different from the grounds of denial of registration.

The first ground for the cancellation of registration is falsification or misrepresentation with regard to the adoption or ratification of the constitution and by laws or amendments thereto, the minutes of ratification, and the members who took part in the ratification; misrepresentation with regard to the election of the union officers, the list of the voters and the minutes of the election; the registration may also be cancelled through the voluntary dissolution of the union and another ground is violation of the rights and conditions of union membership.

Now can the registration of the union be cancelled because some of the members of the union do not belong in the bargaining unit?

In cases where some of the employees in the union are daily paid and some are monthly paid, it will not result in the cancellation of registration of the union. But in certain exceptional circumstances where the union is a mixture of rank and file and supervisory employees, it will result to the cancellation of the registration of the union. Supervisors cannot join the union of rank and file and rank and file cannot join the union of supervisors. If there is a mixture of rank and file and supervisory employees, the registration has to be cancelled because it is not an appropriate union.

Now how do we go about the cancellation of the registration of the union? There are three ways. It can be done judicially, administratively or voluntarily. Judicial cancellation is done through the filing of a petition for cancellation, it can only be done through a direct action for cancellation. You cannot do it collaterally for example in a petition for certification election. It should be done by a separate petition for cancellation of registration.

Who can file for a petition for cancellation? If the ground for cancellation is violation of the rights and conditions of union membership, only the members can file a petition for cancellation of registration. And with regard to any other ground, any party in interest can file a petition for cancellation of registration. The party in interest could be the employer because it is interested in the collective bargaining. The employer can only bargain with a union that is a legitimate labor organization.

Now the mere fact that a petition for cancellation of the registration of the union does not disqualify the union from exercising the rights of a legitimate labor organization. It

can still enter into a CBA with the management, it can still file a petition for certification

election, it can still file a motion for intervention in a petition for certification election. The only time that a union can be prevented from exercising those rights is that if there

is a final judgement canceling the registration of the of the union. Only a final order of

cancellation would strip the union of its legitimacy.

The registration of a union may also be cancelled administratively. This is more on the reportorial requirements. If it does not comply or does not report to the department of labor the matters it is required to report, for example the financial statement or the list of its officers, it can be a ground for administrative cancellation of registration. In the case of administrative cancellation, it is not automatic, the department of labor will send you a notice to comply with this reportorial requirements and when the union does not comply with the notice then the administrative proceedings shall take place.

The union may dissolve itself and the department of labor in this case will cancel the registration of the union because it has already been dissolved.

To dissolve a union, there are certain requirements. There must be a general membership meeting, the meeting must be called for that purpose, 2/3 of the employees must approve or agree to the dissolution of the union and the resolution must be reported to the department of labor so that it can be recorded in the roster of legitimate labor organizations so that anyone who wants to inquire as to the status of the union will be informed if the union is still existing or not.

A while ago we discussed that the documentary requirements shall be attested toby the

president and certified under oath by the secretary or treasurer of the union. The attestation and certification requirements are also required in merger and consolidation of unions. In merger, one union absorbs the other while in consolidation two or more union merge together forming a new entity. If unions merge and consolidate, there are also certain requirements that must be complied with and all those requirements must be certified under oath by the secretary or treasurer of the union and attested to by the president.

Let us now go to affiliation. If a union does not want to undergo registration, it can affiliate itself with a federation. Now the local chapter becomes a legitimate labor organization or acquires legitimacy upon the issuance of the charter certificate and the submission of the documentary requirements such as the charter certificate, place of business of the local chapter, the names and addresses of the officers of the local chapter and the constitution and by laws. Hence it is the act of submission of all those requirements that makes the union a legitimate labor organization but for the purpose of filing of the petition for certification election, the mere issuance of the charter certificate will suffice. Take note also that he requirements must be attested to by the president and certified under oath by the treasurer or secretary of the union.

Now who can create a local chapter?

Under the law, only a national union or a federation can create a local chapter. A trade union center cannot create a local chapter.

A trade union center is a group of federations.

Supposing a union is independently registered, can it affiliate with a federation? Yes it can. There are certain requirements. First, the affiliation of the union must be approved by the majority of the union members and by the board of directors of the union and second the affiliation must be reported to the department of labor.

The relationship between an local union and a federation is that of principal and agent relationship. The principal being the local union and the agent is the federation. It is important to know the relationship for the purpose of determining the liability. For example the local union declares a strike and the management sues the union for damages. Who would be liable? Ofcourse it is the principal. Even if the federation was the one who signs the notice of strike except when the federation exceeded its authority.

Does an independent union lose its legal personality when it affiliates with a federation? Not it does not. Once it is registered, it enjoys legitimacy until the cancellation of its registration. It will be different when it comes to a local chapter because a local chapter does not have its own independent registration.

Can a union disaffiliate with the mother federation? Yes. But it is subject to certain conditions. The disaffiliation must be approved by the majority of the union members and it must be done during the freedom period. Freedom period is 60 days prior to the expiry of the CBA. Once the local union disaffiliates with the mother federation, the relationship is cut off and the federation cannot collect federation dues from the local union. Now what happens with the CBA? The CBA still subsists.

Now lets now go to collective bargaining agent. Now it is not enough that the union is organized for the purpose of collective bargaining

it has to be legitimized and the acquisition of legitimate status will not by itself qualify the union for collective bargaining. The union must be certified as the collective bargaining representative.

How is a union certified as a collective bargaining representative? There are two ways. First by voluntary recognition and second is by certification election.

When we say voluntary recognition-it is a process by which a labor organization is acknowledged by the employer as the collective bargaining representative of the employees covered by the collective bargaining unit. Voluntary recognition is proper only when the establishment is unorganized and there is no other legitimate labor

organization within the bargaining unit. If there are two unions within the bargaining unit there must be a certification election.

There are certain requisites that must be complied when it comes to voluntary recognition. First, he union and the employer must execute a sworn statement attesting to the fact that there is voluntary recognition and there is no other legitimate labor organization within the bargaining unit. This sworn statement or affidavit must be posted in 2 conspicuous places in the establishment for a continuos period of 15 days and the parties must send a notice of voluntary recognition with the department of labor. The notice will be recorded in the department of labor. The purpose of that is to be able to record the fact of voluntary recognition in the roster of legitimate labor organizations so that no petition for certification will be recognized for a period of one year from recording of the voluntary recognition. The one year period is reckoned from the recording by the department of labor of the voluntary recognition.

Certification election is the process by which the employees in the bargaining unit selects the bargaining representative. The purpose of this is to know whether the employees desire to be represented by a union and which union they want to represent them. In a certification election, regardless of the number of the participating union, the no union choice is always included. If the no union wins then there is no collective bargaining agent and the significance of which is that no petition for certification election may be filed within a period of one year from the election.

Who can file?

Generally a legitimate labor organization can file a petition for certification election. A federation can also file a petition for certification election for and in behalf of the local chapter who was issued with a charter certificate. Now can the employer file a petition for certification election? Yes if it is requested by the union to bargain collectively. If the employer does not want to recognize the union it can file a petition for certification election so that the employees can decide if they want to be represented by the union or not.

It is required that the petitioner is a legitimate labor organization. A group of employees cannot file a petition for certification election.

The petition for certification should be filed with the regional office where the union operates.

The petition for certification can be filed at any time in unorganized establishments. In organized establishments, it should be filed within the freedom period. In unorganized establishments, the mere filing of the petition for certification election is enough for the med arbiter to order a certification election. In organized establishments the med arbiter can order a certificgation election upon the verified petition of a legitimate labor

organization, within the freedom period and with 25% consent of the employees within the bargaining unit. 25%requirement need not be strictly complied with. It may be less than 25% as long as it is supported by a 25% written consent. If not supported by any written consent, it will be dismissed. If less than 25%, it is discretionary upon the med arbiter.

The purpose of the 25% requirement is to know whether or not the employees would want to hold a certification election. What id the effect when it is withdrawn by the employees? If withdrawn before the filing of the petition then it is as if there was no written consent and the petition should be dismissed. If it is withdrawn after the filing then the petition should be granted. If the withdrawal is before the filing it is presumed voluntary. If after the filing, the employer might have influenced it.

The circumstances that bar the filing of a petition for certification election are:

Contract bar rule- if there is a duly registered collective bargaining agreement, no petition for certification election will be entertained except if it is done within the freedom period.

Deadlock bar rule-no petition for certification election shall be filed if there has been a collective bargaining deadlock to which the incumbent bargaining representative is party and submitted for conciliation and mediation or has been the subject of a valid notice of strike.

Negotiation year bar- no petition for certification election shall be entertained if within one year from the certification election or voluntary recognition, the collective bargaining representative has commenced to negotiate with the employer. Counted from the date of actual election.

July 7, 2013

Labor Organization

Certification election. remember that it is the process by which employees choose their bargaining representative for collective bargaining purposes. the process involves first, the organization of the union, then legitimizing the union, either by registration or affiliation with the mother federation. And after that, the next step is to become a bargaining agent. by voluntary recognition or Cert. election.

We have started discussing the different bars.

Vol. Recog year bar rule- the PCE is barred within 1 year from the time of recording of the voluntarily recognized union in the Registry of LLO. the 1 year period is reckoned from RECORDING by the DOLE in the Registry of Leg. Labor Organization

Election year bar rule. No PCE shall be entertained within 1 year period from the holding of a VALID Cert. election.

Negotiation Year Bar Rule. the Union has 1 year to start the CBA negotiations from CE or VR. NO PCE shall be entertained within 1 year period from the date of election or from the date of VR

Contract Bar Rule. If there is an existing DULY REGISTERED CBA, No PCE shall be entertained except within the freedom period

Deadlock Bar Rule. No PCE shall be entertained when a deadlock, to which an incumbent CBR is a party, has been subjected to conciliation, arbitration or is the subject of a valid notice of strike or lockout. to ensure industrial stability.

in case of a deadlock, the parties may: submit the matter for conciliation or arbitration or the union can declare a strike, or management can declare a lockout.

Certification Election is commence by the filing of a petition by a LLO or by a federation in behalf of its local chapter in which it has been issued a charter certificate or by the employer when requested to bargain collectively. there may be instance where the union parties agree to conduct a certification election. if that happens, the Med-arbiter will no longer order a certification election, instead, the party will agree to the date of the election and post the notice of election in the establishment. If the parties did not agree, then, the med-arbiter did not agree, then the med-arbiter will order a CE.

There may be instance when interested union will have to intervene in the certification proceedings, it can do so by filing a motion for intervention. If the Petition is filed by another union, the incumbent bargaining union will be automatically become an automatic intervenor. In every Certification Election, the Choice is always within the union and No union. example, when the petition was filed by union X, then the choices will be Union X and No union. Suppose there are two or more intervenors. Then the choice will be union X, Union Y, Union Z, and No union, SO the no union will always be a choice in a certification election. When should a motion for intervention be filed. distinguish, In an UNORGANIZED establishment, the M. for intervention can be filed any time prior to the decision of med-arbiter. In ORGANIZED establishment, the motion can be filed only during the freedom period.

There can be instances when suspension of the Certification Proceedings is warranted. Example is when there is a pending ULP cases charging one of the contending union as company dominated. for example, Union X file a PCE, then Union Y filed a motion for intervention, simultaneously, Union Y charged the management and Union X with ULP

as company dominated. if that happens, the Certification Proceeding shall be Suspended, in which you should ask a motion to suspend the certification proceedings because the filing a ULP case involving company dominated union is a prejudicial question. because it may lead to a selection of a union that is company dominated and if that happens, the certification election shall be rendered useless. another certification election will have to be conducted.

Another instance when a certification election may be suspended is when there is a pending Petition for cancellation of one of the contending union. In this situation the matter whether the certification election will be suspended is a matter of discretion on the part of the Med-arbiter. if you recall, the mere pendency of a petition for cancellation does not strip the labor organization of his legitimacy. Only the final order of cancellation will strip the Labor organization of his legitimacy or legal personality. If the Med-arbiter denies the suspension, it will not amount to a grave abuse of discretion.

There may also be instances when the filing of motion to dismiss the petition is warranted. example, if there is no Employer-employee relationship between the petitioning union and the management. in this case, motion to dismiss is warranted because only employees can bargain to the employer. It can be illustrated this in a contracting or subcontracting. in some companies which is engage in contracting. It must be remembered that the employees of the contractor remains the employees of the contractor. if the employees of the contractor believed that they were employees of the principal, and file a PCE, the Principal may file a motion to dismiss the petition because there is no employer-employee relationship between the employees of the contractor and the principal.

another ground for dismissal is lack of legitimacy on the part of the petitioning union. lack of legitimacy because it is not registered as a LLO or his registration has been cancelled with finality.

PCE may also be dismissed on the ground that there is lack of written consent of 25% of the employee. and the other grounds are the "bar rules".

in a certification election, there are certain matters which the med-arbiter cannot decide. first is the validity of the registration of the union except if the union is IN FACT not registered in the roster of LLO and you could easily prove that getting a certification to the DOLE that the union is not registered. but if the union is in fact registered but it was able to obtain its registration through fraudulent deeds or despite the deficiency of the supporting documents, the med-arbiter cannot prove on the validity of the registration.

Another point that the med-arbiter cannot decide is the validity of the CBA, except when the CBA is not registered in the registry of CBA. so if the CBA is duly registered. the Med-arbiter cannot render decision as to whether the CBA is duly registered. However matters pertaining to the existence or non-existence of the Employer-employee relation

is within his jurisdiction to decide. also issues pertaining the validity of an employee becoming a union member is also within the jurisdiction of the med arbiter to decide. example, when the manager or supervisor became a member of a union, the med- arbiter has the jurisdiction over such case.

after the issuance of the order for the election, the matter shall be submitted pre- election conference for the parties to decide the date of election and other matters. but before the certification election can be conducted, notice of election must be posted in conspicuous places in the establishment. this is a mandatory requirement. a certification election without notice is null and void. particularly if majority of the covered employees were unable to vote due to lack of notice.

who are qualified to vote in the PCE? is it the union members? or the employees covered by the bargaining unit? remember that in collective bargaining, the CBR represents not only the members of the union. it represents the entire bargaining unit. if you will recall that in the bargaining unit they are not only those who are union members, there may be some employees who does not want to be a union member but is still covered in a bargaining unit. So in the Certification Election, All employees covered by the bargaining unit whether union members or not are qualified to vote. even probationary employees can vote. strikers can vote in a cert. election because during a strike, the employment relationship subsists. strikes does not cut off employment relationship. even members of religious sect that prohibits its members to join a union can also vote in a cert. election. A dismissed employee. can they also vote? you have to distinguish. if the employee file a complaint for illegal dismissal and the complaint has not been decided with finality, then they are entitled to vote, but their votes are segregated. If the employees did not file a complaint, then for all intents and purposes, the employment relationship is cut off and they are disqualified to vote in a certification election.

During the election, the voter can also be challenged either by the contending union or by the management. on the ground that the voter is not an employee of the company or the voter is not covered by the bargaining unit. or has been dismissed from the company without the illegal dismissal being filed. what happens if the votes cast is less than the number of eligible voters. if the number of the votes cast is less than the majority of eligible voters, then there is failure of election.

what happens when failure of election is declared? the interested party may file a motion of a holding a election within 6 months from the declaration of failure of election. in order to have a valid election, at least majority of the eligible voters must have cast their votes.

Run off election. A run off election is possible only when the certification election has at least 3 choices. so if the Cert. Election has at least 3 choices but no union obtained a majority of valid votes cast, and the total number of votes for all the contending union is at least 50% of the number of votes cast. then a run off election can be conducted. so

remember the requirement for the run off election. so there can be no run off election when there is only two choices. now who can participate in a run off election. the two unions acquiring the highest votes shall participate in the run off election. No union will no longer be a participant in a run off election

In a cert. election, the Employer is considered as a bystander. this is the bystander principle. it is the general rule, there are certain cases where the employer can actively participate in the cert. election. example, when there is no employer-employee relationship the Employer can file a motion to dismiss the Cert. Election. The bystander principle will not apply. also when the bargaining representative sought to be represented by the union is not an appropriate bargaining union, the employer can also file a motion to dismiss. How can there be an inappropriate bargaining unit? one example is when the bargaining unit is composed of a mixture of supervisory and rank and file employees. Also if the union that files the Certification election is not a LLO the Employer may ask for the dismissal of the petition notwithstanding the bystander principle. If the petition is not supported by 25 % requirement. and if there is a contract bar, negotiation year bar rule, or other bars, even if he is considered as a bystander.

can an order in the PCE be appealed? distinguish, in UNORGANIZED, an order GRANTING the PCE is not appealable. How about in ORGANIZED establishment? an order granting or dismissing the PCE is appealable to the Sec. of Labor within 10 days. how about in UNORGANIZED establishment, can a decision ordering the dismissal of the petition be appealed? yes. so only the orders granting the PCE in the unorganized establishment is not appealable.

Collective bargaining practice. after voluntary recognition or certification election. the next step for the union to send its CBR's collective bargaining proposal, the duty to initiate the collective bargaining negotiation is upon the union. the management has no duty to initiate collective bargaining negotiation. once the union submit its collective bargaining proposal, the management must then submit its counter proposal. under the law, it has 10 days. but that is not a mandatory requirement. as long as the employer does not ignore the counter proposal, there is no violation of duty to bargain collectively. The CBA must be Ratified because the union is merely an agent. so the agreement entered into must be ratified by the bargaining unit. the majority of the members of the bargaining unit is required. but prior to the ratification, the CBA must be posted in two conspicuous places, that is a mandatory requirement. if it would be found out that the CBA has not been posted prior to ratification the CBA will not be registered. after ratification, comes the registration. this is to bar the filing of PCE within 5 years to ensure industrial peace.

Now is the CBA not registered valid? yes. an unregistered CBA is valid to the parties. the only purpose of registration is to bar the filing of PCE. and who will administer the CBA? the management and the employees will administer jointly. the CBA will apply not only to its union members but also to non union members as well as long as they are covered

by the bargaining unit. what will be the term of the CBA? under the law, in so far as the representation aspect is concerned is 5 years. Representation aspect means the authority of the bargaining rep. to represent the bargaining unit. no union can challenge the majority representation of the CBR for the next 5 years except during the freedom period. this is to prevent the unwarranted practices before of calling union trading?

can the CBA be renegotiated during the 5 year period? yes. the only thing that cannot

be done is to challenge the majority representation of the incumbent bargaining agent.

in

what aspect can be renegotiation? both the economic and non-economic provisions

of

the CBA.

What then is the effectivity of the renegotiated CBA? there are 3 situations. first. if the parties arrived at an agreement within 6 months from the expiry date of the 3rd year. the effectivity date shall retroact from the expiry date of the CBA. suppose the parties were not able to arrived into an agreement within 6 months? the effectivity of the CBA shall be determined by the parties. suppose the parties were not able to agree and deadlock was submitted to arbitration? the effectivity date shall be from the finality of the decision of the arbitration. Can the parties agree to suspend the CBA? according to the case of PAL, Yes. but take note that the suspension should be done by the employees within the bargaining unit itself and not only by the bargaining representative.

UNION SECURITY. it is a stipulation which requires union membership as a condition for continued employment. the common types are, closed shop, union shop and maintenance of membership. what's the difference? in a closed shop, the employer binds itself to hire only those who are members of the union. if the employee does not or refuses to join the union, the union may recommend that the employee be dismissed or refuse the hiring of the applicant. but if the refusal is based on religious ground, then the closed shop agreement will not apply. because religious freedom is higher in rank than contractual obligations. how does closed shop agreemnet differ from a union shop? in a union shop stipulation, the employer can hire non union members but the employee must, within the given period, join the union, and must maintain his employment in good standing. Maintenance of membership, it means that those who are already a member of a union at the time of the signing of the CBA should remain members of the union in good standing as a condition for continued employment. under this situation where there is union security clause in the CBA, does it mean that union members can no longer resign from the union? they can, but only during the freedom period.

Levy of Special Assesments. A labor organization can validly levy special assessments on extra ordinary fees only when the general membership so approves. the union must call

a general membership meeting for the purpose of determining whether the union

members would want to approve the levy of special assessments. and during the GENERAL, as distinguish from local, membership meeting, majority of the member

employees must express their conformity to the levy of special assessments and aside from that, the Secretary of the union should prepare the minutes of the meeting including the members present, the votes cast and the purpose of the special assessments. IF the special assessment was obtained during the local membership meeting, it will be invalid. or it was made by a resolution of the board of the union. it will also be invalid.

Check-off. it is a method of deduction. it is a common provision of CBA, it is a method of deducting the salary. in order to be valid, it must be supported by an INDIVIDUAL written check off authorization from the employee, duly signed by the employee, and the authorization must specifically state the amount and purpose of deduction, including the beneficiary of the deduction. take not the word INDIVIDUAL WRITTEN authorization. hindi pwede ung isang written authorization tpos magsasign lahat. what will happen if the employer will deduct fees assessments or dues to the salary of the employee without any authorization? the employer shall be liable for illegal deduction.

there are instances when individual authorization is not required. 1st is those which are mandatory activities under the labor code. what are those mandatory activities? labor education. in this case, individual written authorization is not enough. another instance is deduction of AGENCY fee? and who are those employees who will be deducted with agency fees? to non-union members covered by the bargaining units who accept benefits under the CBA. If the non union member does not want to accept the benefits under the CBA, it cannot be assessed with any agency fee. when it comes to agency fees, no written authorization is required. how about union dues? does it need written authorization? YES. it needs INDIVIDUAL written authorization.

Grievance, when we say grievance, it is a dispute between employees and employers with respect to interpretation and implementation of the CBA or company personnel policies. the inclusion of grievance machineries in a CBA is a mandatory requirement. if there is no grivence machineries, it will not be registered. violation of CBA? would it be considered as grievance? distinguish. if the violation is gross, it would be a ULP. so what does GROSS violation means? it is a flagrant or malicious breach of the economic provisions of the CBA. How about violations that are not gross? under the law, it will be considered as an ordinary grievance. suppose the grievance was not settled? the next step is voluntary arbitration. who can be a voluntary arbitrator? anybody as long as the parties select him as voluntary arbitrator.

What is the jurisdiction of the Voluntary Arbitrator? there is an Unresolved grievances arising from interpretation and implementation of the CBA or company personnel policies. second, wage distortion disputes in ORGANIZED establishment. if unorganized establishments, there is no CBA, thus no grievance machineries. it is under the jurisdiction of the Labor arbiter. how will you delineate the jurisiction of Voluntary Arbitrator over termination disputes from the jurisdiction of Labor arbiter over termination disputes? distinction lies in this. if the termination disputes is still in the

implementation stage of the CBA or Company personnel policies, then it is within the jurisdiction of Voluntary arbitrators. However, if there is already actual dismissal, in which case, the jurisdiction will now fall to the Labor arbiter. You should also distinguish Personnel policies from disciplinary rules. interpretation and implementation of disciplinary rules will fall under the jurisdiction of the Labor arbiter because disciplinary rules are punitive in character whereas Personnel Policies are non-punitive.

July 23, 2013

Summary of CBA and Strikes Collective bargaining involves union-management relations When we say union it is intertwined with organization. The very first thing we discussed is right to self organization.

Right to Self Organization

Right granted to EE to form either:

1. Workers Association (WA) for the purpose of mutual aid and protection

2. Labor Organization (LO) for purpose of collective bargaining

1. ORGANIZE

When we say LO, the very first thing to be done when the union desires to collectively bargain is to organize itself to an organization, union.

Then the next thing to do is legitimize it. A union which is not a LO cannot enter into a CBA. It can be legitimized in 2 ways. 1) Registration and 2) Affiliation with a federation. A federation is a LO with atleast 10 chapters each of which is collective bargaining agent in the establishment.

2. REGISTRATION

Union acquires personality upon issuance of the Certificate of Registration How about in the case of local chapter, when does it acquire legal personality? By issuance of charter certificate and submission of the documentary requirements to DOLE like the names of its officers, consti and by laws. But for purposes of filing of Petition for Certification Election, the mere issuance of charter certificate will suffice. In short as long as the local chapter has already been issued charter certificate it can file a petition of certification election (PCE) even if other doc reqs has not yet been submitted to DOLE. Mere issuance of charter certificate will not entitle local chapter to exercise all the right granted to LLO. They can only do so when all the doc reqs has already been submitted.

A. VOLUNTARY RECOGNITION It is a request to bargain collectively or request for recognition. If that happens the mgmt has 2 options. Either to recognize or to file a PCE. Remember ER can file a PCE when a union requested to bargain collectively. Request to sit down and bargain is a

demand to bargain collectively. If the mgmt does not want to recognize the union and wants to throw the matter to EEs themselves, they can file for PCE.

If the mgmt decides to VR, both parties must execute a sworn statement attesting to the fact that there is no other union in the company and the union has been recognized. VR is available only when the establishment is unorganized. So there is no other LO organization operating in the BU. Proper only when the establishment is unorganized and no other LO operating in the bargaining unit.

If there is supervisors union but there is none in Rank and file (RF) it is still unorganized with respect to RF. B. CERTFICATION ELECTION

Who can file a PCE?

1. LLO

2. Federation if the one who issued charter certificate. in behalf of the local chapter who

has been issued charter certificate. Local charter is considered LLO when filing PCE upon issuance of Charter cert

3. ER when it is requested to bargain collectively, if no request ER can file a petition

When can PCE be filed? Distinguish establishment if organized or unorganized. In unorganized the PCE can be filed anytime. If organized, only during freedom period.

When the union has been accorded VR, a CE is barred within 1 year from recording in the roster of LLO. Remember in VR, mgmt and union must make an sworn statement, affidavit, attesting to the fact of recognition and no other LO operating in the establishment. Must be posted in 2 conspicuous places in the establishment. The parties should file a notice of VR for the purpose of having the VR recognition recorded in the roster of LLO.

What is the effect of registration? CE will be barred for a period of 1year from recording. That is VR bar rule. The rule states that no PCE can be entertained within 1 year from recording of VR.

If union obtains his status as bargaining agent through registration, there is 1 year period where PCE can be barred. That is what we called ELECTION YEAR bar rule. The rule states that no PCE can be entertained within 1 year after a valid election.

How about if there is Failure of Elec? The contending union can file PCE within 6months. If there was valid election, the bar is 1 year period.

2 things can happen here. First is deadlock. If there is deadlock in negotiation there are 3 options available to the parties.

1. Submit issue to conciliation

2. arbitration

3. union can declare a strike, mgt can declare Lockout

When does deadlock bar rule come in? it is not just the deadlock. It says that no PCE can be entertained when the deadlock, bargaining agent and ER has been subject to conciliation, arbitration or subject to valid notice of strike or lockout. That is what we call deadlock bar rule.

If the parties agree to terms of CBA, it is signed. Who signs the CBA? Officers of union and representatives of mgmt. Is it enough that CBA has been signed by officers? It must be ratified. Ratified by whom? Not just by union but by all EEs covered by bargaining unit (BU). CBagent is an agent. In the laws of agency, it must be ratified by the principal and the principal here are the EEs covered by the BU.

Prior to ratification, it is mandatory to post the CBA in 2 conspicuous places in the establishment. CBA is deemed ratifies when majority of the BU gives their approval to the terms of CBA.

4. Register CBA

Purpose: Bar a CE. Contract bar rule says that no PCE shall be entertained when there is

a duly registered CBA except during freedom period, 60 days prior to expiration of CBA.

That is summary of CB process

Strikes Temporary stoppage of work as a result of labor dispute To constitute a strike there must be concerted stoppage of work which must be temporary as a result of labor dispute. Without labor dispute, it would not amount to strike.

Case:

1. ALPAP vs CIR (page 364) -There is no strike because there is permanent termination

of work.

2. PBMEO vs Phil Blooming mills (page 365) -No labor dispute because the protest is

against police abuses

3. Byflex-They joined welga ng bayan. SC held that there is a strike, in sympathy with the

other groups.

Not all EEs are granted the right to strike

There are certain limits. Right to strike is not absolute

1. NO labor union can strike without bargaining collectively. What does this mean? After

the union is certified or recognized as bargaining agent the next thing to do is negotiate CBA with mgmt. If instead of negotiating the union declares a strike for the ER to force to give in to their demands then the strike is illegal. Under Art 264.

2. The union can not strike without filing a notice of strike. It cannot just stop working

and declare a strike without filing a notice with NCMB. The purpose is to provide opportunity for conciliation and mediation. When the notice of strike is filed, it depends

upon the ground. If the ground is ULP must be filed 15 days before the intended strike. If the ground is CBA deadlock the filing of notice must be 30 days before the intended strike.

Strike is temporary stoppage of work. Yung nakikita niyo placards marching to and fro it is not a strike, because a strike can occur even without placards. It is the concerted stoppage of work. It could be in the form of sitdown strike, it is just doing nothing. They report to work and do nothing. Also it could be slow down which means EE retard production. But also take the form of mass leave. Yung sabay sabay nag leave. That is a strike because mass leave is tantamount of stoppage of work. Wild cat strike is illegal.

There are certain requisites that must be complied with to have a valid strike.

1. It must be staged by LLO or by certified or recognized CBAgent

So in a particular company if there is a certified CBAgent in a company, only it can declare a strike.

Suppose an establishment has no CBAgent, can the EE strike? Yes, as long as there is LLO. In short in the absence of CBAgent, any LLO can strike. The situation takes place before the VR or before the CE. Because in that illustration there is LLO but not yet recognized as CBAgent. But once the LLO is recognized it can already declare a strike.

2. It must be staged on grounds specified by law

3. It must comply with the requirements prescribed by law

4. It must be for lawful purpose and carried through lawful means

Who can declare a strike? The answer is only a Certified or duly recognized CBAgent can declare a strike whether based on ULP or CBA deadlock. If there is no certified or duly recognized CBAgent, any LLO can declare a strike but only on the ground of ULP.

Can a union which is not yet declared or recognized CBAgent declare a strike? Yes. But only on the ground of ULP because there are only 2 grounds for strike. ULP and CBA

deadlock. A strike declared on any other ground is illegal. Before a union can declare a strike it must comply with certain legal requirements.

1. File a notice of strike before NCMB

2. decision to declare a strike must be made by Majority of union members through a

strike vote

3. Strike vote to be submitted to NCMB.

All reqs are mandatory. Failure to comply with one renders the strike illegal.

Why is it necessary to file Notice? To give opportunity for conciliation and mediation. In practice whenever a notice of strike is filed, the NCMB summons the parties to appear before it and then ND there ways and means to settle is . Once notice of strike is filed, you have to depend upon the ground of the strike. If ULP, notice of strike should be filed 15days before the intended strike. If on the ground of CBA deadlock, it must be filed 30days before the intended strike. During this 15 or 30 day period, the union cannot strike. It can only perform ways and means to settle. This 15 0r 30day period is actually the COOLING OFF period. There are certain instances where cooling off period may be dispensed with. When the dispute pertains to ULP involving the dismissal of union officers to the point the existence of union is threatened. It is called union busting. They can strike without serving the cooling period. They are still obliged to file a notice of strike, strike vote of majority must be obtained and strike vote reports must be submitted to NCMB. They must still comply with all the other legal requirements.

Who decides whether to go on strike or not? Unlike in CE when members of BU vote who should be their Bargaining agent, in strike, only the union members vote in a strike balloting. If the majority of union members vote to strike, then they can go on strike. If majority of the union members do not express their approval, they should respect the wish of their members.

Having obtained the strike vote, the next requirement is to submit their strike votes to NCMB within 7days before the intended strike. During this 7days period, the union cannot strike.

(Board illustration)

Let us assume the notice of strike was filed on Jan1. And the ground for strike is ULP, then we have 15days cooling off period. Suppose the union intended to strike on Jan 15, they decide to have a strike on Jan1. But there must still have requirements that they have to comply like strike vote. Suppose the strike vote report is submitted on Jan 12. It must be on this point where the union can strike. Notwithstanding the fact the union intended to have their strike on Jan15 it cannot have a strike because they must still observe the 7day strike ban.

Suppose the strike vote report is submitted on Jan 7, the 7 day period coincided with Jan 15. In this case, the union can strike on Jan 15. If the 7day period is coincided with the intended strike, then they can strike on Jan15. Otherwise, the union can not strike on Jan15 (must still observe the 7day strike ban)

It may happen also during the conciliation proceeding during the cooling off period that the mgmt will present an improved offer. For example, prior to the deadlock the mgmt offer 500php increase in wages then during the conciliation proceedings the mgmt offered an additional 100php. What will happen? NCMB will conduct an improved offer balloting. The issue will be thrown back to the general membership of the union, whether they accept the improved offer. There will be a referendum whether they accept it or reject the improved offer of mgmt. If majority votes to accept the improved offer, then the strikes end. The union can no longer strike.

What happens to EM status of strikers? Do they lose EM status during strike? No. The strike is not a means to severe EM relation. The EM status of strikers continue during strike. It is not considered abandonment of the EM status.

What if the strike ends, what will happen to the strikers? Under the current doctrine, strikers are entitled to readmission. Except, when the strike is illegal in which case the union officers may be denied readmission. Or in cases where the strike is attended with violence or illegal acts, strikers who committed illegal acts may not be readmitted. They may be declares to have lost their EM status. If strike is illegal, only union officers can be declared to have lost their EM status. In cases where strike is attended with violence, any striker, whether officer or member who committed illegal acts can be declared to have lost their EM status.

SOLE orders strikers to return to work. What happens if strikers refuse to return to work? If strikers defied RTW order they can still be declared to have lost their EM status, they may be dismissed. Including all members who defied the RTW. Remember the strike of PAL pilots. The orders were received by them but did not report to work. All of them are dismissed, defying RTW order.

Categories of Illegal Strike

1. Violation of specific prohibition of law Examples are strikes staged by EE performing government functions, by managerial, on grounds of intra and inter union dispute under Art 263, on grounds other than CBA deadlock or ULP

2. Violation of specific requirement of law

3. Declared for unlawful purpose

4. Declared for Unlawful means

6.

Violation of existing agreement

July 30, 2013

When you say strike, you say temporary stoppage of work as a result of a labor dispute.

It has three elements: (1) temporary stoppage of work; (2) duly concerted actions of employees; (3) as a result of a labor dispute.

If the employees resign enmasse there is no strike because the stoppage of work is not temporary. The strike or the stoppage of work is temporary. Slowdown is also a temporary deprivation of work.

Another important element is labor dispute - the stoppage of work must be a result of a labor dispute, without a labor dispute stoppage of work cannot be considered as strike.

In the case of Philippine Blooming Mills, the employees stopped working to join the protest against the police abuses. It was said that there was no strike.

However in the case of Baron, the employees will join the "welgang bayan" were considered to be a strike although the employees did not have any labor dispute with their employer their act of joining the "welgang bayan" was considered as a strike because a "welgang bayan" is considered as a general strike and the employees who joined the general strike are deemed to be in sympathy with the general strike. In short, what was staged was a sympathy strike.

So that distinguishes the Philippine Blooming Mills case with the Baron case. In PBM, the employees who joined the mass demonstration in protest for the police abuses was declared that there was no strike because there was no labor dispute between the employees and the employers.

The right to strike has its own limitation - it is not an absolute right.

First limitation, the union cannot strike without first bargaining collectively. After the union is certified or recognized as a bargaining agent the next thing that it should do is to bargaining collectively with the employer by sending its bargaining proposal and start negotiations. However, if after being certified as the bargaining agent and after demanding several times the employer disregards the union declares a strike to force the employer to agree to their demands then that is a legal strike.

The union cannot just declare a strike. It has to first file a notice of strike that is a mandatory requirement. The purpose of this is to give the parties the opportunity to settle. That is why the law says that the notice of strike should be filed 15 days before

the intended strike if the ground is for unfair labor practice or 30 days before the intended strike if the ground is for a CBA deadlock. You have to exhaust the 15 days or 30 days before a strike can be staged and you cannot strike within the 15-day or 30-day period. Within that 15 day or 30 day period, that is what is called the cooling-off period this the time when the National Conciliation Board performs to call the parties for the purpose of discussing or ways or means of settling their disputes. You noticed that there are only two periods the reason is because there are only two grounds for a strike: (1) unfair labor practice and (2) CBA deadlock. Outside of those two grounds, the union cannot declare a strike. So the union cannot declare a strike in case of inter-union or intra-union disputes that is expressly prohibited by law.

Who can declare a strike? Only a legitimate labor organization can declare a strike and that LLO must be the collective bargaining agent. So it is not enough for you to say that only legitimate labor organization can declare a strike, but it should also be the collective bargaining agent.

But in certain circumstances any legitimate labor union can declare a strike but only on the ground of unfair labor practice. Because if there is no collective bargaining agent necessarily there is no or there can be no CBA deadlock because the union is not yet

recognized or certified as a collective bargaining agent cannot negotiate a CBA therefore

it would be impossible for it to have a CBA deadlock. But when it comes to deadlock in

CBA negotiations, only a legitimate labor union, which is the certified agent, can declare

a strike.

Aside from the notice of strike, there are two other mandatory requirements mentioned by the law. First is the strike vote and the second is the strike vote report. The union, which decides on whether to go on strike, the union members themselves who will decide whether to strike. This is done by calling a general membership meeting among the union members and during that meeting the members will vote by secret ballot whether they will go on strike or not. If the majority of the union members vote for the strike, then the union may stage a strike after it has submitted the strike vote report to the National Conciliation and Mediation Board. So it is not enough for the union to file a notice of strike or to get a strike vote. It is also required that the results of the strike vote balloting be submitted to the NCMB within 7 days. Within the 7-day period, the union cannot strike. That is called the 7-day strike ban. The 7-day period may coincide with the 15-day or 30-day cooling of period as long as the strike vote was submitted 7 days before the start of the 15-day or 30-day period - then it may coincide with the cooling off period. But if for example the strike vote is submitted on the last day of the cooling of period you still have to wait for 7 days after submission to the NCMB before you can declare as strike. If the union strikes without observing the 7-day strike ban, the strike will be illegal even if the cooling-off period has expired.

A strike declared without the notice of strike or without the strike vote or without observing the 7-day strike ban is an illegal strike.

What would be the effect if the strike is declared illegal? Our rule is that the union officers who knowingly participated in the illegal strike will be deemed to have lost their employment status, in short they are deemed dismissed from employment. If the issue is ULP the cooling-off period is 15 days so you have to file your notice of strike 15 days before the date intended strike. Under certain circumstances, the 15-day cooling off period need not be observed - if the issue pertains to an unfair labor practice where the existence of the union is threatened because of the dismissal of the duly elected union officers. If this is present, the union may strike without observing the cooling off period. But take note that despite the fact that the union need not observe the cooling off period they are still required to submit a notice of strike and to conduct a strike vote balloting and to submit the strike vote report. It still has to observe the requisites of a strike.

So remember, the union cannot immediately declare a strike just because it has already obtained the consent of the majority of the union members. It still has to submit a strike vote report.

The strike is destructive in nature because it paralyzes the operation of the company and the management will surely incur damages. Who could be liable for the damages incurred during an illegal strike - is it the local union or the federation? The relationship between the local union and the federation is principal-agent. The local union is the principal and the federation is the agent. So therefore, the liability for the damages will devolve upon the principal and that is the local union and hold true even if the federation was the one who signed the notice of strike. It is always the principal who will be held liable for the damages. If the federation exceed its authority like for example it proceeded to strike even without yet the consent of the local union.

What would be the effect of an illegal strike? Under the law, if the strike is found to be illegal the union officers may be declared to have lost their employment status or in short they will be dismissed. So there is no dismissal of the strikers even if the strike is declared illegal only the officers will be deemed dismissed. But it is different if the strike whether legal or illegal if it is attended with illegal acts such as violence, sabotage and other illegal acts. In this case, not only will the union officers will be deemed to have lost their employment status but also the plain union members who committed illegal acts. Take note of those things that when the strike is declared illegal only the union officers who knowingly participate in the illegal strike will be deemed to have lost their employment status. But in the commission of illegal acts in a strike anybody whether officer or member will be declared to have lost their employment status. The same holds true if the strikers defy a return-to-work order, not only the officers but also the members or strikers who defy a return-to-work order will be deemed to have lost their employment status. Defiance of a return-to-work order is an illegal act and under the law whoever makes defiance of the order will be deemed to have lost their employment.

Can a strike be enjoined or can injunction issue against a strike? General rule, a strike cannot be enjoined even if it will appear to be illegal because a strike is a right guaranteed by law. But there are situations where an injunction may properly issue against a strike. And what are does situations? First is when the strike is declared against an industry indispensable to national interest. Second is if the strike was declared by employees who are not accorded the right to strike. Government employees or managerial employees cannot strike because they do not have collective bargaining rights. Whenever the managerial employees cannot form a labor organization and bargain collectively so there will be no instance where they can strike on the ground of CBA deadlock because there is no CBA to speak of and they are forbidden to negotiate for CBA with the employers. So if managerial employees declare a strike, that strike can be enjoined through an injunction. Also when a strike is declared on the grounds other than those prescribed by law, so if a strike is declared outside of that two grounds the strike may be enjoined. For example the union will strike only on the ground of inter- union or intra-union disputes, injunction may very well issue.

Who can issue injunction? If the strike was declared against an industry indispensable to the national interest only the SOLE can issue the injunction. On the other hand, if the strike was staged by employees who are not accorded the right to strike or if the strike was declared outside the grounds declared by law, the injunction can be issued by the NLRC. Regular courts cannot issue injunction against a strike because they have no jurisdiction over labor disputes.

Supposing the strike was attended with violence and other illegal acts, then the strikers obstruct the entrance and exit of the establishment can the employer summarily remove those obstructions? The answer is no. Even if the entrance and exit to the establishment was blocked with boulders and placards the employer cannot just remove those obstructions. To enable the employer to remove those obstructions it has to file a petition for injunction with the NLRC.

On the other hand, if obstruction is formed in the public thoroughfare for example on the street or on the sidewalk - the authorities can remove those obstructions because they are considered as nuisance.

Let us now go to picketing, picketing is just the marching to and fro of the employees carrying placards to express their sentiments against the employer. Picketing is not a strike because there is no stoppage of work. When you see workers carrying placards in front of the establishment during their lunch break that is not a strike but a simple picketing. There are some employers who file a petition to declare the strike illegal who picket during lunchtime. If you encounter that situation you can ask for the dismissal of the petition because there was no stoppage of work. So there can be no illegal strike, it is the right of the citizen whether an employee or not to picket without being subject to sanctions because it is part of the freedom of speech. But then, the right to picketing is

not absolute. Under the law, it is prohibited to picket by obstructing the means to ingress or egress of the establishment. The picket should be moving and it should not obstruct the entrance and exit. So if it is moving, anybody can go in and out of the premises whether they the employees or customers of the establishment are not being prevented within the premises. The moment they obstruct the ingress or egress it becomes illegal. They cannot even obstruct public thoroughfares and they cannot also commit violence during picket.

Can picketing be enjoined or can an injunction issue against picketing? The answer is no because picketing is part of the freedom of speech, however, under certain circumstances the picket may be enjoined in order to protect the innocent bystanders or if it is set-up thru illegal means or is attended with violence or illegal acts. Sometimes there are establishments located in a single compound or building sometimes their picket will cover the entire compound thereby making it appear that all the establishments in the compound have labor disputes with the picketers. Those who do not have dispute with the picketing employees then they can ask for injunction to limit the area where the picket will be done in the establishment where they have labor disputes. That is the innocent bystander doctrine.

Lockout is just the opposite of strike. Strike is for the employees while lockout is for the employers. The requirements and grounds are the same. When we say lockout, it is the temporary refusal of the employer to furnish work as a result of a labor dispute. In a lockout, the employer bars the union members from work and they are not given work because of a labor dispute.

Lockout should be distinguished from shutdown. In shutdown, the plant totally stops from work whereas in lockout the plant is still open for non-union members to continue to work only union members are not allowed to work. When the company temporarily closes down its operation because of lack of work or lack of raw materials that is not deemed to be as a lockout because there is no labor dispute involved. The closure may be temporary but there is no labor dispute because the temporary closure was for lack of work or lack of raw materials there is no lockout. Similarly, if the employer closes down its business permanently that is not called a lockout. So even if there is a labor dispute involved but the closure was permanent, the employer decided to close down its business because of the labor dispute there is no lockout because the closure is permanent. It is the prerogative of the employer to close down because it can always close down its business whether or not there is a labor dispute.

As in the case of a strike, the legal grounds for lockout are (1) unfair labor practice and (2) CBA deadlock. You will recall that it is not only the employer who may be guilty for unfair labor practice also a labor organization can also commit ULP that is why an employer can declare a lockout against a labor union who commits unfair labor practice.

Also the mandatory requirements are notice of lockout, lockout vote and lockout vote report. The notice of lockout shall be filed 15 days before the intended lockout if the ground is unfair labor practice or 30 days before the intended lockout if the ground is CBA deadlock.

Who will determine whether or not a lockout? If the establishment is a corporation, the board of directors will decide whether to lockout or not and if the majority of the board of directors decide or vote to lockout then the employer can already declare a lockout but again subject to 7-day lockout ban because the employer is still obliged to submit the lockout vote report to the NCMB within 7 days. If the employer does not comply with all those requirements the lockout will be illegal.

What will happen if the lockout is declared illegal? The employer will be held liable for past wages during the period of lockout. Now if the establishment is a partnership, the partners themselves will determine whether to lockout. If the majority of the partners vote for a lockout then it can declare a lockout subject to the lockout requirements.

Strikes or lockouts against industries indispensable to national interest - under the law, when in the field of SOLE there exist a labor dispute that is causing or is likely to cause a strike or lockout in an industry indispensable to national interest the SOLE may assume jurisdiction over the dispute or certify it to the NLRC for compulsory arbitration. Take note that the law does not define what an industry indispensable to national interest is. It leaves to the SOLE the discretion to determine what an industry indispensable to national interest is. So when the SOLE says that this particular establishment is an industry indispensable to national interest then that is binding upon the courts. Take note that the opening sentence in the law is "when in his opinion" this means that it is the opinion of the SOLE that a particular industry is an indispensable industry then it becomes binding. Under the salient provision, the SOLE is given the power to assume jurisdiction over the labor dispute or to certify the labor dispute to NLRC for compulsory arbitration. When the SOLE assumes jurisdiction it will render the decision on the topic. And the powers of the SOLE if the national interest is so true that it embraces or encompasses all the claims under the jurisdiction of the labor arbiter. So all related cases which may be pending with the LA and the NLRC are to be consolidated with the claims before the SOLE. All related disputes must be consolidated.

What could be the effect if the SOLE assumes jurisdiction over labor disputes or if he certifies it to NLRC for compulsory arbitration? As expressly provided for the law, when the SOLE assumes jurisdiction over a labor dispute or it certifies the labor dispute to the NLRC for arbitration a strike whether actual or impending is tolled. Any intended strike is barred. If an actual strike has already taken place the strikers are already prohibited to attend to their strike. When you feel that your company is an industry indispensable to national interest after the filing of the notice of strike you file a petition for the assumption of jurisdiction or petition to certify the labor dispute for compulsory arbitration. On the basis of that petition the SOLE may or may not issue and order

assuming jurisdiction or certifying the case. If he issues an order assuming jurisdiction or certifies the case for arbitration the effect is the union cannot strike and the employer cannot declare a lockout the strikers must withdraw today upon the assumption order they have to return to work - it is automatic. The assumption order or the certification order carries with it a return-to-work order even when it is not specified in the order itself. So, once the union receives the certification order or the assumption order the strikers must return to work even if a motion for reconsideration has been filed. In short, the assumption or certification order is immediately executory even when the union or the management files a motion for reconsideration. And if the strikers did not return to work they will be declared to have lost their employment status. When you get an assumption order from the SOLE and the order was served to the employer or the union the sheriff or bailiff carried the order but nobody answered because they were informed that the assumption will be served. So time when the order has to be served thru the door and the paper was moving so may tao sa loob and then after a few minutes of waiting bumalik ung papel. The sheriff made a report on the matter the SOLE declared that there was no constructive service. But even then the SOLE was tolerant and still summoned the parties to a conference but during the conference the lawyer did not appear only the officers of the union and when the order was again to be served to the officer of the union and we waited for 2 hours, wala then the officers refused to receive the order, this time the SOLE declared that there was a constructive service of the order and because the by-laws did not comply with the assumption order or the return-to-work all of them are deemed to have lost their employment status that was in 1998. And up to now, they still did not get their benefit because it was a conflict. That was also the time when the personnel of PALEA in1998 and that also gave rise to the decision of the validity of the 10-year suspension of the CBA. From 1998-2008 walang CBA negotiation ang PAL with the employees of PALEA. So that is the effect of the defiance of the assumption order. All strikers whether officers or members who defy the return-to-work order will be deemed to have lost their employment status. You will notice that in the St. Scholastica's case the strikers refused to return to work because according to them "we have filed a motion for reconsideration so we are returning to work and we will only return to work when the motion for reconsideration is decided with finality". According to the SC, that should not be the case, a return-to-work order is immediately executory even when the party filed a motion for reconsideration or regardless whether you filed an appeal or not.

If in the exercise of these assumption powers, hearing is not necessary anymore the SOLE can issue the order without even a petition being filed by the employer if he thinks that the strike can be harmful to the national interest. The SOLE can only enjoin a strike but it cannot enjoin the employer from taking any disciplinary action against the strikers. And that is what happened in another Philippine Airlines case - the SOLE assumed jurisdiction over the labor dispute, in his order the SOLE added that PAL is hereby enjoined from taking any retaliatory action against the strikers. The SC held that that couldnt be done because the authority of the SOLE in case of indispensable

industry is to enjoin a strike but it cannot prohibit the employer from taking disciplinary action against the strikers.

August 6, 2013

Unlike the older law, the labor code now guarantees the security of tenure. Under the old law, the employer can dismiss the employee if he does not like your face or does not like the way you part your hair, by just giving you one month notice. The only instance when the employee is entitled to reinstatement is when he is terminated because of unfair labor practice. But under the present set up whether unfair labor practice or not as long as there is no just cause for dismissal an employer cannot dismiss an employee. So we have what we call the security of tenure.

And when we say security of tenure, it simply means that the employee cannot be dismissed without just cause or authorized cause.

Now in case of regular employment, the employers shall not dismiss the employees except for just cause or authorized causes. So there are 2 aspects of the provision, dismissal for just cause and dismissal for authorized causes.

The dismissal for just causes are those mentioned in article 283 which states serious----- ---, fraud or willful breach of trust, willful disobedience, gross neglect of duty or commission of a crime and other analogous causes. Were as dismissal for authorized causes are those mention in article 284 to 285 this refers to retrenchment, redundancy , introduction of labor saving devices, closure establishment and decease .

this is the opening sentence of the provision in 279 it says that if there is regular employment so it could convey the idea that only those holding regular employment are entitled to security of tenure well that is true but employees who do not hold regular employment are also entitled to security of tenure in a qualified manner in the sense that they cannot be dismissed without just cause or authorized causes during the term of employment. When we say regular employment, what does that mean? An employment is considered regular when the employee was engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer except those who engaged in project basis or those who are engaged in a seasonal basis. The regular employment status is determined not by the contract or the name given to it by the parties but by the nature of work of the employee, therefore when the activity perform is usually necessary or desirable in usual business or trade of the employer, that employment is regular as a general rule.

regular employment may also indicated by repeated and continuous rehiring of employee because that will indicate the activity is indispensable to the operations of the employer. so it is not only regular rank and file employees entitled to security of tenure

even managerial employees are entitled to security of tenure this means that they cannot also be dismissed without just cause or authorized causes.

what is the remedy for employee dismissed illegally. Under the law an employee who is illegally dismissed is entitled to back wages, that is the relief. the remedy for employees illegally dismissed is to file complaint for illegal dismissal. You must distinguish relief from remedy. a petition for injunction is not the appropriate remedy because without a complaint for illegal dismissal being filed there is no labor dispute. this is exemplified by the case of Philippine airlines vs NLRC. I that case 2 flight attendant were dismissed for currency smuggling. Instead of filing a complaint for illegal dismissal, what they did was to file a petition for injunction before the NLRC. they prayed that the company PAL be restrained from dismissing them and to order PAL to reinstate the flight attendant with backwages. Now it was held by the supreme court that the remedy availed by them is not the proper remedy. the NLRC cannot issue an injunction because there is no labor dispute involved. That the NLRC can issue an injunction only when there is labor dispute.now in the absence of a complaint for illegal dismissal there is no labor dispute hence the NLRC CANNOT issue an injunction. now lets go to relief what is the relief available to employees who are illegally dismissed? remember the remedy is complaint for illegal dismissal. You have to distinguish. If you are talking about migrant worker the relief is reimbursement of placement fee plus 12 % interest per annum and salaries for the unexpired portion of his employment contract. Remember that when it comes to overseas worker reinstatement is not prescribed as their relief. The relief of reinstatement and back wages is available only to local employees. The legal basis for that is Article 797 when it says that an employee who is illegally dismissed is entitled to reinstatement with back wages reckoned from time of his dismissal up to actual reinstatement. Now in appropriate cases an illegally dismissed employee may be awarded separation pay in lieu of reinstatement or moral exemplary damages and attorneys fees.

what is a reinstatement? It means the restoration of an employment previously held. That means that an employee cannot be ordered or reinstated into a position which he never held before the time of his dismissal. For example, if the employee at the time of his dismissal was a temporary employee, the labor arbiter cannot order his reinstatement to a permanent position. Similarly, the employee cannot be reinstated into a higher position. It can only ordered that he be reinstated to the position at the time of his dismissal.

there was this sale supervisor who was terminated because of losses,

the validity of the dismissal was upheld. But the court ordered that if there is a vacancy, he should be given preference. He learned that the branch manager resigned and the company hired another person to take the place of the resigned branch manager. Upon learning of this, the sale supervisor filed a complaint that the company be directed to reinstate him to the position of branch manager. It was held by the supreme court that cannot be done

The case of

because the position held by the employee was sale supervisor whereas the position he wanted is branch manager which is higher and cannot be reinstated into a higher position.

Reinstatement is a relief, separate and distinct from back wages. Reinstatement restores a lost position whereas back wages restores lost income. Because they are separate and distinct from each other, reinstatement may be rewarded without back wages. Conversely, back wages may be awarded without ordering reinstatement. When is Dismissal considered to be illegal that will warrant reinstatement. There are certain situations when reinstatement cannot be awarded anymore. First if during the course of the illegal dismissal, the employer sells his business or transfers ownership of the business, the new owner cannot be ordered to reinstate the employee because the new owner is not obliged to absorb the employees of the old owner. Another situation when reinstatement cannot be ordered anymore is if during the course or the pendency of the illegal dismissal case, there has been business reverses and reduces personnel. Because of the reduced personnel, the employees can no longer be reinstated. We have a case like this when Globe Telecom acquired Visacom in 2000. At the time of the acquisition of Visacom, there was a case for illegal dismissal filed in 1998 by employees who were dismissed because of illegal walkout. The illegal walkout case was decided in favor of the employees. They were ordered to be reinstated with full back wages. And the case went up to the supreme court that the decision became final and executory. And up to now the case is still active. When the employees sought to enforce the decision some time in 2007-2008. Globe took the position that the reinstatement can no longer be enforced because there are no more positions to which they can be placed. When Globe acquired Visacom, there was a drastic reduction of personnel by about 60 to 70 percent. Likewise, they took the position that the back wages should not be extended beyond may2000. Just imagine if the back wages is computed between 1998 and 2007-2008 that can sum up to billions. The complainants took the position that the judgment is already final and executory. It can no longer be altered or modified. So there was another round. This time, the supreme court ruled out that the employees can no longer be reinstated because of the prevailing circumstances and the back wages should not be extended beyond May of 2000. So up to now the case is still pending and it is still in the process of computing the back wages. So There will be a third round in the supreme court if they cannot agree on the computation. So from our computation, we computed up to the present, it will amount to 18 million but we were able to limit the computation of back wages. So that is an example of where reinstatement can no longer be ordered despite of the finding of the illegality of the dismissal.

Another example when reinstatement can no longer be ordered is when the position occupied by the employee is already abolished. If this is the situation, the employer

should find a substantially equivalent position. If there is none, the employee would be entitled to a separation pay. Closure of business is also another example where reinstatement can no longer be ordered if during the pendencyof the case, the employer closes down business, there is nothing more to be reinstated because the business is gone. Likewise, if during the course of the proceeding the employee becomes physically or mentally incapacitated, he can no longer be ordered reinstatement because he is no longer mentally and physically fit to work. Also, when the employee reaches compulsory retirement, there is no reinstatement because compulsory retirement is the end of employment. There are some cases when the employee faces conviction of a criminal case that may also prevent reinstatement. The case of Sampaguita the employee was caught and dismissed because for theft of company property. She was apprehended taking out a piece of cloth. She filed a complaint of illegal dismissal which was decided in her favor which became final and executory. The decision was reinstatement with full back wages. Simultaneously, the employer filed a case of theft against the employee. The court convicted the employee. The employee sought the enforcement of the decision of the labor arbiter for the reinstatement. The employer put up the defense that the employee was already convicted so she can no longer be reinstated in her former position, the employee moved the reason that the reinstatement order is final and executory. But the supreme court held that the subsequent conviction of the employee in that criminal case is a supervening event that will bar the enforcement of reinstatement order because conviction in the criminal case is equivalent to the order of dismissal.

In some instances, the labor arbiter does not order reinstatement because of strained relations between the parties. Under the doctrine of strained relations, reinstatement should not be ordered anymore if the relationship between the parties has become so grave and fractured so as to preclude a harmonious working relationship.

This doctrine is usually applied to employees for the position of trust and confidence or those differences are already irreconcilable. But take note that the mere finding of the complaint of illegal dismissal does not automatically call for the application of this doctrine called the strained relations. Where the differences between employee- employer are personal the doctrine of strained relations should not be affirmed.

Suppose the employee during the illegal dismissal case was able to obtain employment elsewhere. For example, after the dismissal he looked for a job and was able to find one, will that preclude an order for reinstatement in the illegal dismissal case? The answer is no because it is not unnatural for an employee to look for employment after the dismissal because he has a family to support. The mere fact that the employee was able to find a job is not enough to oppose an order for reinstatement.

Lets now go to the relief of backwages. Backwages is a relief and not a cause of action. The cause of action is the illegal dismissal or the violation of the right to security of

tenure. There is a difference between backwages and unpaid wages. Unpaid wages refers to compensation for services already rendered and backwages refers to what the employee would have earned had he not been illegally dismissed.

Should backwages be awarded in every dismissal? No. Only those employees illegally dismissed are entitled to full backwages. Full backwages should be awarded to the employees illegally dismissed without any cause at all. Another case that would warrant full backwages is when the dismissal is prohibited by law. An example would be if an employee was dismissed for filing a complaint for non-payment or non-payment of the minimum wage. It is provided that it is prohibited to dismiss an employee for non payment or underpayment of the minimum wage. Another case that warrants full backwages is when a female employee was dismissed because of pregnancy. It is prohibited by the labor code. It is also prohibited to dismiss an employee who was confined due to her pregnancy or when the employer feels that she might get pregnant again. Another case prohibited by law is when an employee is dismissed because he testified in an unfair labor practice case or in any case which involves self organization. There are also cases which calls for the award of limited backwages. First is when an employee has committed an offense and the penalty of dismissal would be too harsh. In such a situation, full backwages is not warranted because if you would award full backwages it would amount to absolving the employee of his offense so the labor arbiter should not award full backwages. Similarly if the employee does not file a case for illegal dismissal outright full backwages should not be awarded. For example the employee waited for two years before filing the complaint. In some cases also. There should be no award of backwages. For example the dismissal was done in good faith. Also when the employee was not in fact dismissed but it was he who refused to work, the award of backwages is not warranted.

Now how do we determine the amount of backwages? Over the years, several doctrines was adopted. The first doctrine is the deduction of earnings elsewhere. Under this doctrine, if the employee was able to find employment elsewhere, his earnings will be deducted from the award of backwages. The next doctrine was 3 years compensation without deduction of earnings elsewhere. But that doctrine was abandoned by the bustamante case. Under this doctrine, the earnings elsewhere must not be deducted.

Now there are circumstances that forestall the running of backwages. First is death of the employee. If the employee dies during the pendency of the case the backwages cannot go beyond the time of death. Even if the employee has become mentally or physically incapacitated, the backwages cannot go beyond the mental and physical incapacity. Attainment of compulsory retirement will also forestall the payment of backwages. Also closure of the establishment whether temporary or permanent.Also confinement in prison.

Next is moral and exemplary damages. Just remember that damages are reliefs not prescribed by the labor code but by the civil code. So if you would pray for moral and exemplary damages. Do not just declare that the dismissal was illegal. You should also establish that the dismissal was made in bad faith or contarary to law, public policy or that you suffered from social humiliation. In short the claim for moral damages should be established along with the principles established by the civil code. The same goes with regard to the claim of attorneys fees. Award to attorneys fees is not automatic, you should claim entitlement to attorneys fees. There are two concepts of attorneys fees. Ordinary and extraordinary. When we say ordinary, this are the fees for the services rendered. When you say extraordinary it is an item of damages which is awarded only under the circumstances provided for by the civil code. So when attorneys fees are awarded as an item of damages, it is not awarded to the lawyer but it is awarded to the client. Now should attorneys fees be awarded for every illegal dismissal? No. It is not automatic. When you see a decision that awards attorneys fees, see to it that it is stated in the body of the decision. If the award of attorneys fees is not contained in the body of the decision, it is questionable and when you asked for it in appeal the award is seemingly not valid.

Now can a corporate officer be liable for the backwages of an illegally dismissed employee? Well the general rule is no because the corporation has a personality separate and distinct from its officers but if the corporate officer acted in bad faith he may be solidarily liable. And also when the corporation is already not existing and the employees wee not able to satisfy their claims, they can go after the corporate officer. Usually it is the president who is held solidarily liable unless the president is the complainant itself. In this case, the vice president will be the one that will be held solidarily liable.

The case of Ransom Labor Union and NLRC, Ransom is a family corporation a strike was conducted or staged by their employees as the result of the strike Ransom dismissed the striking employees and they filed a complaint for illegal dismissal and the employees were able to get a favorable decision and was ordered to be reinstated with backwages. Now, because of that Ransom closed the corporation and organized a new corporation. The employees could not enforce the judgment because the corporation has closed down. Because of that they ran after the properties of the officers of Ransom in their

individual capacity and the court held that they can

because they can be held liable for the claims under the judgment because

they anticipated that they will not win in the case so they organized a new corporation

with the same line of business.

the officers of Ransom

because

over

Security of tenure does not mean that the employees cannot be dismissed. There are

prerogative to choose

whom to hire. The right to choose or select the employees is exclusive prerogative of

certain prerogatives which not even the

employer

can form

management not even the union can demand as who should be hire and who should

not be hired. And it is within its prerogative that the employer can put employees on probation to determine whether they are fit for regular employment. There was this

case of

another person. Now the owner, the buyer did not or placed a new advertisement that it is hiring employees including those employees of the former owner can apply. Several employees of the old employer applied and they were accepted as probationary employees. These employees protested that they cannot be placed under probation

because they were already regular employees under the old management and they have served the company for so many years and that they already regular employees. the supreme court held that the employees can be validly placed under probation or on probationary status by the new owner because the new owner has the prerogative to choose whom to hire. next prerogative is the prerogative to promote employees. again this is an exclusive prerogative of management. when the management promotes a particular employee, the union cannot complain that it is done to weaken the union because the employee can choose to reject the promotion. now the union cannot dictate as to who should be promoted and who should not be promoted.

Also we have the prerogative to transfer employees. if the employee refuses to obey transfer then he can be dismissed for willful disobedience to lawful orders. an example

of this is the case of homeowners

branch accountant of the company was

stationed in san carlos city and she was transferred to urdaneta. She refused to obey the transfer order because that would entail additional expense on her part. The Supreme Court held that the transfer was valid because it is a prerogative of the company. Also

The employee was transferred from Baguio to manila. He refused, for

the case of

NLRC the employees were terminated because the business was sold to

vs.

the

this reason he was dismissed for willful disobedience. The Supreme Court held that the transfer was valid notwithstanding the resulting inconvenience that may be brought to the employee. Another prerogative is the prerogative to reduce personnel. this prerogative is based on the principle that the employer cannot be required to hire personnel more than that

what is needed.

Also the employer has the prerogative to change the work schedule of the employees.

In the case of

with paid 30 minute lunch break, the company changed the said schedule to 7:45 am to 4:45 pm with one hour non compensable lunch break. Now it was held that the change in the schedule was valid because the employer has the prerogative to change the working schedule. Another prerogative is to abolish a section or even a department. The employers also have the prerogative to reorganize the structure. The employer also has the prerogative to transfer or sell its business and the buyer is under no obligation to absorb the employees of the old employer. Also the power to discipline employees.

NLRC, the employer changed the working hour of 7:45 am to 3:45 pm

vs

Security of tenure is not a guaranty of perpetual employment. Security of tenure simply

means that the employee cannot be dismissed without just cause or authorized causes.

The just causes of dismissal are:

Serious misconduct and willful disobedience; Gross or habitual neglect of duty; Fraud or willful breach of trust; Commission of a crime against the person of the employer; Analogous circumstances.

Misconduct is the transgression of some rule of action. It must be serious and work connected to constitute a valid cause of dismissal. If the misconduct is not serious it could merely warrant a penalty less that dismissal. it could be suspension, reprimand or warning. Disrespectful conduct is not serious as to warrant the dismissal of the employee. in the samson case where the employee uttered disrespectful words in a party, it was not considered as a serious misconduct because the employee was emboldened by alcohol and that the act was not malicious, hence it cannot warrant the dismissal of the employee. The second element is that the misconduct must be work connected.

To constitute a valid cause for dismissal the willful disobedience must be willful, the order must be reasonable and lawful, the order must be made known to the employee and the order must be in connection to the duties.

*willful-must be intentional and done purposely. *reasonable-will depend upon the facts and circumstances in each case. *the lawful must be lawful-must not be contrary to law, morals and good customs. *the order must be known to the employee-this is self explanatory. *the order must be in connection to which the employee was engaged.

Gross habitual neglect of duty To be considered as a valid cause for dismissal, the neglect of duty must be gross and habitual. When it comes to gross and habitual neglect of duty, damage is not an essential element. It is enough that the damage tends to cause damage to the employer.

Fraud or willful breach of trust To constitute a just cause for dismissal, the fraud must be committed against the employer and not against a third party and it must be work connected. Breach of trust, the basic premise on the ground for dismissal on breach of trust is that the employee holds the position of trust and confidence. It is the breach of his trust that results in loss of confidence. There are two types of employees who holds positions of trust, first is managerial employees and second are those who have access to or handles company properties or funds. When it comes to dismissal of employees on the ground of breach of trust, the

treatment of rank and file employees differs from managerial employees. When it comes to rank and file employees, a higher proof is needed. To constitute a ground for dismissal, the breach of trust must be willful and must be related to his duties.

Commission of a crime The crime referred to here is a crime against persons. The law says commission of a crime against the person of the employer, the immediate members of his family or the authorized representative of the employer. It is not necessary to secure a prior order of conviction before an employee can be dismissed for commission of a crime.

Then we have analogous causes. When we say analogous, the case must have similar elements to the enumerations under the law.

August 13, 2013

Just Causes for dismissal Other valid causes of dismissal (aside from art. 203)

1)

Violation of company Rules and regulations

a) Violation of safety rules(Northern Motors vs. NLU)

b) Violation of the rule against sleeping while on Duty (OSCO Workers Fraternity vs Ormoc Sugar Co.)

2)

Breach of union securityDismissal on illegal strike

3)

Dismissal for staging an illegal strike

a) officers who knowingly participate in an illegal act

b) strikers who committed an illegal act while on strike

4)

Defiance of the Return to Work order

5)

Sexual Harassment

a) not about green jokes,

b) Committed by an employer, employee, manager, supervisor, or agent of the employer who, having authority, influence or moral ascendancy over another, demand , requests or otherwise requires any sexual favor from another from another, regardless of whether the demand, request or requirement is accepted

c) can be committed in a work related environment or in n educational or training environment

d) It is committed in a work related environment when:

i) sexual favor is made a condition for hiring or continued employment of an employee

ii) granting favorable terms, conditions, promotions, compensation, or privileges

iv)

Sexual advances result in an intimidating, hostile, oroffensive environment for the employee

 

v)

when refusal to grant the sexual favor results in discriminatory act.

e)

It

is commited in an Educational or training environment

i)

sexual favor is made as a condition for granting honors or give a passing grade, payment of benefits or privileges or when sexual advances will result in a hostile environment to the trainee or apprentice

f)

In a work related environment, the victim may be an employee or an applicant of

employment

 

g)

There must be a superior-subordinate relationship.

h)

it

is not about a man taking advantage to a woman because of sexual desire but

the exercise of power by the superior to the subordinate

i)

case of CSC vs ??? (9:40) there was no sexual harassment. The manager is an employee of another company

j)

Florante vs CA. Not neccesary that sexual favor be in categorical terms. although there was no demand of sexual favor, the actuations of Bresma is tantamount to

a

demand of sexual favor

k)

is enough that the acts would create a hostile or offensive environment for the Employee. Case of Philippine

it

l)

Case of

,

Sexual Favor need not be in articulated in oral or written statement

Procedural requirement for dismissal with the guarantee of security of tenure, you cannot dismiss an employee outright. you must give due process(the opportunity to be heard.) Art. 277 B. the law Outlines the procedural requirements for dismissal.

1)

Inform the employee the charges against him

2)

give him ample opportunity to be heard and defend himself with the assistance of a representative he so desires

It is necessary to give the employee

1)

Notice to explain why he should not be dismissed. must specify the acts or omission

2)

committed by the employee Give reasonable opportunity to explain his side.

a)

as to what is reasonable opportunity is a question of fact. (in a case of

transport

,

5 days is considered as reasonable opportunity)

If continued employment poses a serious and imminent threat to the life and property of the employer or his co-employees. the employee may be placed under Preventive suspension

Preventive suspension

the employee may be placed under Preventive suspension Preventive suspension it is not a penalty but

it is not a penalty but a preventive measure.

during administrative investigation Some cases, after issuing a notice to explain, would warrant an administrative

during administrative investigation

Some cases, after issuing a notice to explain, would warrant an administrative hearing. But in dismissal or disciplinary cases, Hearing is not a matter of right, if the Employee wants a hearing he should ask for it. and if ever hearing is to be conducted. it need not be in a trial type proceeding. It is not even necessary, during the hearing to advice the employee his right to counsel because the right to be advised of his right to counsel applies to custodial investigation and not to administrative investigation. confrontation to witness is not also essential.

Opportunity to be heard is realized when the employee has been given notice to explain. The employee cannot complain that he was denied due process if

1. he refuse to receive the notice to explain

2. he chooses not to give his side

3. if he ignored to attend the hearing

Suppose the employee was dismissed without due process. Will it render the dismissal illegal? Under the current doctrine. IF the employer did not afford the employee his right to due process. the dismissal will not become illegal, but the employer would be liable for nominal damages.

In dismissal cases the burden of proof is to the Employer. But the employee must establish first that he was in fact dismissed. and the legality of the dismissal must be proved by the employer.

the degree of proof is substantial evidence even if the ground of dismissal is because of a criminal offense.

Suppose the employee was dismissed committing an act like theft. if the employee is acquitted in a criminal case or that the employee was not prosecuted in a criminal case, would that render the dismissal illegal? No. because the criminal proceedings is different from the proceedings before the labor arbiter. The proceedings are independent to each other.

But suppose the employee was found to be illegally dismissed by the Labor arbiter and was reinstated to his former position with full backwages and was final and executory, but was convicted in a criminal case. Can the employer refuse to comply with the final and executory judgment rendered by the labor arbiter? YES. because the subsequent conviction of the employee in the criminal case is a supervening event that rendered the reinstatement unfeasible and unjust.

Termination of non-Regular employee.

Art. 280 speaks of types of employees. regular, non-regular and casual employment.

Regular employement are those who performs activities which are usually necessary and desirable in the usual business or trade of the employer. except when the employee is engaged in a specific project or undertaking the completion of which was determined at the time of engagement or when the employee is engaged in a seasonal basis.

The law speak of 2 types of non-regular employment project and seasonal employment. you will note that the activities of these employees are usually necessary and desirable in the usual business or trade of the employer but the law does not consider them as regular employees because of their limited tenure of their engagement.

the tenure of a project employee is the project itself. once the project is finished. the employment is terminated. the same is true to seasonal employment.

The law speaks of Specific project. The duration of the employee must be determined at the time of the engagement of the employee regardless of the number of years that it will take to finish the project and regardless of the number of projects that the employee was called to report on.

In a specific project or undertaking, there may be two types. one is done in a daily basis and one that is not done habitually by an employer.

example of a project that daily basis is in a construction company. a construction company may have several projects, a building for example in baguio, a terminal in another province, and a condominium in makati. These are projects that is done in a daily basis because that is the type of business of a construction company.

now when or upon completion of the building, terminal or condominium, the employment of the workers are also terminated. but not all project employment is terminated at the same time, for example the employees who work in the electrical installation or in the plumbing installations. once the installations are completed, then the employee of the particular aspect of the projects are also terminated. Now if the employees are terminated, they are not entitled to separation pay.

As to the activities which are not done in a habitual basis. this is exemplified in the case of national steel corp. which is a manufacturer of steels. National steel made a 5 year expansion program and instead of hiring a construction company, they hired their own employees for construction. Notwithstanding the fact that the project is to be completed for 5 years. the employees shall still be considered as project employees and upon completion of the project their employment is ipso facto terminated.

The same holds true to seasonal employees.

Another type of non-regular employment that is not provided under the labor code is fixed term employment. In this employment, the determining factor is not the type of activity performed but the agreed period between the parties. This is exemplified in the

case of brent school. Brent school hired an athletic director in a 5 year term. when the 5th year expired, the school terminated the athletic director. The athletic director claimed that he has become a regular employee. the SC held that the engagement of the athletic director for a 5 year term is valid.

And a fixed term employment, in order to be valid must be

agreed upon knowingly and voluntarily by the parties.And a fixed term employment, in order to be valid must be and the parties negotiated

and the parties negotiated in a more or less equal terms with no moral dominance on the part of one to the otherbe agreed upon knowingly and voluntarily by the parties. In a fixed term employment. once the

In a fixed term employment. once the period expires, the employment automatically terminates

Another type of employment under article 280 is Casual employment. Casual is just the opposite of regular employment. thus casual employees are those the activities of which are not usually necessary or desirable in the usual trade or business of the employer.

If the casual employee is hire or has serve for at least 1 year. he becomes a regular employee. and what is the significance of that. if the Casual employee has become a regular casual employee, he cannot be terminated without cause AS LONG AS THE ACTIVITIES LASTS.

Probationary employment is a job where the employee is engaged to undergo a trial period to enable to determine by the employer his fitness or regularization. and to be considered as a probationary employee the employment contract must expressly state that he is being hired as a probationary employee. When the law says that the Prob. Employment should not exceed 6 mnths. it does not mean that every hiring should always be probationary employment. if the employment contract does not state that the employee is being hired as probationary employee, then he will be considered as regular employee right at the start of his employment. because for him to be considered as probrationary employee the employment contract must expressly so state.

At the time of engagement, the standards that the probationary employee must meet to qualify him to be a regular employee must be made known to him. AT THE TIME OF ENGAGEMENT. this is substantially complied with if the employee is or was informed that he will be subjected to periodic evaluation.

an employee who has undergone apprenticeship in a company can no longer be placed under probationary status in the same company. because the apprenticeship would be considered as probationary employment. however, if it is to another company, it would be another matter. the apprentice may be placed under probationary status.

Similarly, an employee who was engaged to undergo to an on-the-job training, say for 2 or three weeks, there on OJT period is already considered as probationary employment

or may be considered as part of probationary employment. so if in one case, ojt was not included in the probationary period. the OJT employee was hired as probationary employment for 6 months and according to the SC, the probationary period has exceeded because the period of OJT is considered as part of the Probationary period. So in as much as the Probationary period has exceed 6 months the employee was automatically became a regular employee.

When it comes to teachers and academic non-teaching personnel, like guidance councilor, librarian. there probationary period is 3 school years. for tertiary and graduate level, six consecutive semesters of satisfactory service and for tertiary level on trimester basis, nine consecutive trimesters. and only full time teachers can qualify for regular employment.

probationary employment can be extended notwithstanding the fact that the law provides that the probationary employment shall not exceed 6 months. probationary period can be extended to give the employee a chance to show his worth. but the extension must be done before the expiration of the period.

the probationary employee can be terminated for any of the just and authorized causes AND for failure to qualify as regular employee.

Now lets go to termination of employment for economic reasons. these are authorized causes of termination. there are 4. Installation of labor saving devices, redundancy, retrenchment and closure of establishment

when an employer computerizes its operation the result is of course reduction of personnel on the ground of the introduction of labor saving devices. an employer also can terminate the employment on the ground of redundancy. And what is redundancy. It is a situation when the services of an employee is an excess of what is required by the business. Redundancy does not necessarily mean duplication of work. Because redundancy may exist even if other person are holding the same position of the company. and as to the characterization of position. it is the prerogative of the management. and as long as it is done without grave abuse of discretion the courts will not interfere with such prerogative.

to be valid. redundancy must be done in good faith. and fair and reasonable criteria must be used. and it is not required that the junior employee must be terminated ahead because what is looked into is not the length of service or seniority but the position itself. the necessity of the position itself. so the employer is not obliged to follow the last in first out policy. and how do you prove redundancy? it is to be proven by the employer. by proving the feasibility of the new organization and of course the approval of the management for the reduction of personnel.

Retrenchment. this is reduction of personnel to prevent losses. it is a method of protection to preserve the viability of the business. to be valid, it must be shown that

retrenchment is necessary to prevent losses. so in order for the employer to adopt retrenchment method it is not necessary that it should incur actual losses, expected losses could be a ground for retrenchment. the expected losses should not be minimal. it should be substantial. fair and reasonable criteria should be used. he may follow the last in first out policy and it must be shown that the retrenchment was done as a last resort. all other remedies must have been exhausted.

Losses can be proven by financial statements of the company. or the income statements but not the comparative statement of revenue for the past two years.

Closure of establishment may be total or partial. relocation of a plant may amount to closure. there was this case where a plant was relocated from manila to ilocos sur. it was held that the relocation of the plant amounts to closure of establishments.

How do you go about the termination of employment. there are two requirements. notice to the employee and another notice to DOLE at least 1 month before the intended termination. that is at least 1 month so you can give notice 2 months or 3 months but not less than 1 month. and the service to the employee must be served personally.

ANd what would be the relief to employees terminated in case of authorized causes. the relief is Separation pay. How much? for installation of labor saving device and redundancy it is 1 month for every year of service, a fraction of at least 6 months shall be considered as 1 year. Now for retrenchment or closure not due to serious losses. not less than 1/2 month for every year of service.

take note that if the closure was due to serious losses. there is no separation pay.

Termination due to illness. the mere fact that the employee is ill does not warrant his termination. In order that the termination be valid on the ground of illness, there must be a certification coming from a competent public health authority. and the illness of the illness of the employee cannot be cure within 6 months even with proper medical treatment even after proper medication.

note that the law requires the certificate from the proper public health authority. that means the government hospitals, government doctors, what if it can be cured in less than 6 months? the employer shall allow the employee to go to a sick leave. and after that, he should be admitted to work. but such sick leave should not exceed 6 years, otherwise his employment will be terminated.

now what would be relief if terminated due to illness? separation pay of at least 1/2 month salary for every year of service.

voluntary resignation. there must be an intension to relinquish the job. the relinquishment must be unconditional. there must be actual act of relinquishment.

intent to relinquish can be incurred from the employees himself. it can be exemplified from the case of John Clements consultants vs NLRC.(605) the SC held that there was resignation as can be seen from the employees actuations of discussing the terms of termination.

how will you know that the resignation was voluntary? If the resignation letter expresses gratitude due the company is an indication of voluntariness.

How about the employee was threatened with criminal action and made to choose between charge and resign and the employer forced him to resign?

SC held that it was voluntary resignation because the threat to file a criminal case is not threat at all. It is a legal action.

What if employee made to choose between dismissal and resignation? still resignation is voluntary. It is a graceful exit.

The mere fact that the employer was the one who prepared the resignation letter does not make that resignation involuntary. Particularly if the employee does not have high educational background. i

Now if an employee voluntarily resigns he is required by law to give 1 month notice. what happens if the employee does not give one month notice? can you force the employee to work between the one month period? no. Involuntary servitude. the only recourse would be to sue the employee for damages. but the 30 day period can be waived it is intended to enable the employer to look for replacement. But there was a case where the ee submitted resignation effective only for 15 days it was received by the company but the company. on the 15th day the ee went to abroad. when the ER knew about it, the company compelled him to observe the 30 day period. the ee could not comply, thus he did not acquire the separation benefits. the EE filed a complain. the SC the EE is entitled. it is not the fault of the EE because there was inaction on the part of the ER in enforcing the 30 day notice requirement of the law. Because if the ER is really sincere in enforcing the 30 day notice. it should have notified the EE at the time of the submission of the resignation letter. the employee is deemed to have waived the 30 day notice period.

voluntary resignation does not entitle the EE of a separation pay UNLESS there is a contract, CBA or Company policy

Constructive dismissal. Involuntary resignation. Involuntary because the EE resigns because of serious insult or inhuman or unbearable treatment. or commission of a crime against his person. It must be remembered that in Constructive Dismissal the EE must stop working.

THere is no constructive dismissal when they are still working. Example. the EE is demoted. for it to be considered as Constuctive dismissal he should stop working.

Abandonment of employment. Constructive resignation. it is the deliberate unjustified refusal of an employee to return to work. there must be absence without notice or justifiable reason, there must be intent to cut off the employment relationship. how can you establish the intent? send a letter to the EE and require him to work. If he does not return to work, send him another. if he still does not report. then that would indicate that he is no longer interested with the work, what if he returns to work, then charge him with absence without leave. Then you may impose the corresponding penalty.

termination due to prolonged day off. remember that suspension of operation that does not exceed 6 month does not terminate employment relation. If suspension exceeds 6 months, then the employment is terminated automatically. example, security guard which was placed in a floating status. the status must not exceed 6 months.

Because suspension of operation does not terminate employment, the ER must accept all of the EEs upon resumption of operation.

Retirement. In retirement. what governs retirement is primarily the retirement plan or the Employment contract. if there is none, then the provisions of the Labor code applies.

two types of retirement, optional and mandatory. in optional, retirement may be based on age or length of service. now who has the option to retire? The provisions of the CBA, employment contract, retirement plan will govern. if there is none, it shall be exercised by the EE. the option can be exercise upon reaching age 60 for ordinary employees, if mining employees, 50.

On compulsory retirement, it is based on age. in ordinary employees, 65 years old. in mining employees. 60. how much? the provision would prevail. but if the amount provided for in the agreement is less than that required by the labor code, the ER must pay the difference. Under the labor code, it is a total of 22.5 days, composed of 15 days, plus cash equivalent of 5 days service incentive leave and 1/12 of the 13th month pay. and to be entitled, the EE must have at least rendered 5 year of service .

2 nd HALF

September 3, 2013

LABOR ARBITER

REMEDIES AND PROCEDURE

Qualifications of Labor Arbiter

1.

Member of the Phil bar

2. Engaged in the practice of law in the Phils for atleast 10 yrs, 5yrs of which is devoted

to labor dispute management

Term of office: up to 65 years old but may be extended by the President up to 70y/o upon recommendation of the NLRC chairman

Jurisdiction

1. ULP

2. Termination disputes

3. Money claims accompanied by reinstatement

4. Claims for actual, moral or exemplary damages

5. Cases arising from violation of Art. 264 of Labor Code

6. All other claims arising from EE-ER relationship

7. Wage distortion in unorganize establishment

8. Enforcement of compromised agreement

9. Money claim of migrant workers by virtue of MWA

ULP. The allegations of the complaint will determine whether the case is a UPL case. If the complaint alleges ULP, you should file your complaint with LA.

Termination disputes. Not all termination disputes fall under the jurisdiction of LA. There are those that are BEYOND their jurisdiction:

1. Termination of corporate officers.

Who has the jurisdiction? Before SEC, now duly designated RTC. Who are corp officers? Pres, VP, Sec, Treasurer, and other officers created under the by laws or the charter or by the Board of directors

Case: Espinovs NLRC (page 28)

2. Termination involving interpretation or implementation of CBA or company personnel

policies. Who has jurisdiction? VA

How to determine jurisdiction of VA and LA? VA-Interpretation and implemenentation of CBA LA-Actual dismissal Case:

1. Sanyo Philippines Workers Union vsCanizares (page 31) -LA has jurisdiction. No issue with regards the interpretation and implementation of CBA. 2. Pantranco North Express Inc. vs NLRC (p32-33)- LA has jurisdiction. no dispute between the union and company regarding the compulsory retirement.

Money claims Distinction of jurisdiction. a. If complaint includes claim for reinstatement, the jurisdiction is vested with LA, regardless of the amount. b. If no prayer for reinstatement. Example, if there is a complaint for illegal dismissal merely claims for separation pay or pure money claims for underpayment of wages, in this situation, the jurisdiction must be distinguished based on the amount involved. If the amount is over 5k, the aggregate amount is over 5k, LA has jurisdiction. If 5k and below, the jurisdiction is vested with RD (Regional Director).

For money claim to fall with the jurisdiction of LA there must be a reasonable causal connection with ER-EE relationship (RCC ER-El).When do we say there is a reasonable causal connection with ER-EE rel? If the issues cannot be resolved by referring to LC or other labor laws under Civil law. Case: Santos Philippines (tax deducted. illegal deduction with LA.) SC: involves underpayment which falls under jurisdiction of LA.

The same holds true with in house counsel for atty's fees. You have a dual personality. Atty-client rel and ER-EE rel because an in house counsel is an EE of the company. If in house lawyer, is not paid with atty's fees, his claim must be filed with LA because there is a reasonable causal connection with ER-EE rel.

Claims do NOT have RCC ER-EE relationship. Case: phil airlines (security agency) SC: Security agency is not an EE of the company. The relationship is purely contractual therefore covered by Civil law.

If the contacting or subcontracting the principal is solidary liable with the contractors for wages. Subject to reimbursement from the contractor. If the contractor employees filed a claim for non or underpayment of wages, the principal ER can not file a cross claim against the contractor in the same case pending with the LA. Any claim for reimbursement against the contractor must be filed before a

contractor is not an EE

regular court because there is no connection with EM. Because of the principal ER.

Money claims of MW. Where do you file the complaint? It should be filed with LA by virtue of Sec10 of MWA.

Money claims of corporate officers. Where do you file

answer. If pertains to be perks of corporate position then the claim must be filed with

REGULAR courts. If MC pertains to benefits and compensation with LA.

as EE, it should be filed

the complaint? Distinguish

Money claims of ER. Who has jurisdiction? Go back to RCC ER-EE rel. if with RCC- LA. Without RCC-Regular court because it becomes ordinary civil action.

Ex. Complaint for recovery of loan. If EE obtains a loan from ER for the purpose of fixing his house because of flood and EE fails to pay his loan, and ER now wants to recover the

loan. The complaint

creditor which is covered by Civil code.

no connection with ER-EE rel. same holds true

with Car plan. The ER who wants to recover the car, the complaint should be filed with

REGULAR courts. Same rationale.

must be filed with REGULAR courts because the rel is debtor -

Damages. As provided by law, LA has jurisdiction over claims for damages. The rule should be governed by RCC. The claim for damages, must have a RCC with ER-EE rel. Case: Apodacavs NLRC (p42) stock subscription has no rel with his employment.

2. Scandalous remark of corp officer, pres of company in the presence of subordinate.

SC: Regular courts has jurisdiction. No RCC ER-EE.

Violation arising from art 264. Complaint to declare the strike illegal. But if you are going to ask for injunction, to remove the obstruction placed by the strikers in the ingress or egress of establishment, it must be filed with NLRC not LA.

Wage Distortion LA extends only to UNORGANIZED (no CBAgent) establishment. If ORGANIZED- who has jurisdiction? VA. Art 124 of LC.

Compromise Agreement Enforcement of compromised agreement.

Claims involving international organization is beyond the jurisdiction of LA. Ex. of International org

1. IRRI

2. Intl catholic migration commission

3. Southeast asian fisheries development center

COMPULSORY ARBITRATION Cases falling LA is compulsory arbitration. When we say arbitration, it is only in the level of LA. Appeal to NLRC is no longer part of the arbitration. Case: PAL vs NLRC (p58) Arbitration process before LA is commenced by filing of a complaint. For company EE the complaint is filed LA having jurisdiction over the workplace of complainant. MW the complaint is filed to LA where complainant resides or principal office is situated at the option of complainant. After filing of complaint, the LA will issue summons. Summons is very important so jurisdiction can be acquired over the person of respondents. Summons usually indicates 2 dates for conciliation meeting/conference. During the concilliation conference the parties discuss ways and means to settle their disputes or LA may simplify the issues

which are necessary. You can file complaint with LA without passing through the lupontagapamayapa because it is not required in Labor cases. You can get a non lawyer to appear before LA.

Exceptions where non lawyer can appear:

1. If they represent themselves

2. Represent an organization or members thereof

REQ: must show proof that he has been authorized by the person represented. It must be written. Otherwise, his actions may not bind the complainant or respondent. If ever a non lawyer appeared, he is not entitled to attys fees. Attys fees are only for lawyers,

even PAO lawyers are not entitled to attys fees.

Very INFORMAL proceedings in LA. After the concilliation, there is no compromise arrived at, the LA requires the parties to submit their respective position papers and thereafter the parties filed their respective replies. Then LA will give its decision. LA can render decision. Based on the position papers alone. No need for trial proceeding. Parties can not claim for violation of due process if based on position paper or no direct examination. The proceedings is under the absolute control of the LA. It determines if there is a necessity for hearing. And if hearing is conducted he controls what questions to ask.

Degree of Proof: substantial evidence

APPEAL If you have adverse decision from LA your remedy is appeal. NOT MR(motion for recon). It is not allowed. Appeal to NLRC within 10 days ffrom receipt of decision. Receipt by Whom for reconning of 10 days? Counsel or lawyer

Only decisions rendered by LA are appeallable.

there are certain orders that are not appeallable. 1.interlocutory orders

2. Order denying motion to dismiss/quash

If those orders are not appealable does that mean you dont have remedy anymore? You can file petition for annulment of the orders within 10 days from receipt.

The filing of petition to annul judgment does not stop the proceeding before the LA unless a TRO is issued by NLRC If you will file an annulment of order you should always ask for TRO and injunction

In order that your appeal before NLRC is perfected you must comply with certain rules. Do not file a notice of appeal. It is not allowed. You should file a memorandum of appeal.

MA should state: ground, when decision is received, arguments in support of your appeal, under oath, verified, with CNFS, otherwise, appeal may be dismissed.

2. Pay the appeal fee. If decision contains monetary award you should also file appeal

bond equivalane to monetary award other than moral, exemplary and attys fees.

Ex

backwage portion.

if

decision

reinstate+backwages+exemplary+moral

the

bond

must

cover

only

Appeal bond is not required if appellant is the complainant. Also if the decision of LA merely orders moral, exemplary and attys fees, and when no appeal bond.

If they complain for ID the relief is reinstatement+BW. If decison of LA orders reinstatement, the reinstatement is immediately executory. That means you need not file a motion for writ of execution to implement the order. The decision is enough directive for ER comply with the reinstatement.

Reinstatement pending appeal

How ER comply with reinstatement?

1. Physically reinstate

2. Payroll reinstatement

Who has the option whether 1 or 2? It is the ER alone. Posting a bond is not an excuse to comply with reinstatement. It is only good for monetary award such as damages. It can not stop compliance with reinstatement order. Suppose the reinstatement order was reversed on appeal? What would be the effect? If the reinstatemnt order was implemented.The ER can put an end to the reinstatement. In short, the ER can bar the EE from reporting to work or stop paymemt if payroll Reinstatement. If the ER opted to reinstate in payroll, he can recover the salaries given pending appeal. Suppose, reinstatement is not implemented during appeal what would be the effect? It will depend upon the cause of non implementation. If ER refuse, the wages can be appealed. If EE refuse after being informed of notices, he is not entitled to any salary during pendency of appeal. Same is true if during pendency of appeal, if establishment has closed down, it is pyhsical impossible to reinstate. Remedy is separation pay of found out that the dismissal is illegal.

Can you file a motion for reconsideration (MR) on decision of NLRC on appeal? Yes. Within 10 days from receipt of decision. If MR is denied, remedy? Special Civil Action for certiorari with CA. Certiorari is not an appeal. It is not a continuation of the proceedings. It is new and independent action. Grouds:

1. Jurisdictional errors

2. Grave abuse of discretion (GAD) amounting to lack of jurisdiction

Factual matters are no longer subject to review. Unless, GAD was committed by NLRC

Injunction GR: no injunction because it is not a matter of settling labor dispute (LD). It can only be issued when extreme necessity is established and clearly established legal grounds. EXC: 1. LD likely to cause lockouts or strikes in industries indispensable to national interest SOLE can issue injunction by way of assumption order or certification order 2. When there is actual or threatened commission of unlawful acts or when necessary to require the commission of particular act when if not strained would cause an irreparable injury to complainant.

Regular courts have no jurisdiction to issue injunction in labor disputes. File it with NLRC.

Who has jurisdiction to issue injunction in exceptional cases. For 1. - secretary of labor For 2. - NLRC

Always remember authority of NLRC to issue injunction is conditioned upon the assumption of labor dispute. In the absence of labor dispute NLRC has no authority to issue injunction. Case: PAL vs NLRC - the case involve dismissal 2 cabin attendants because of smuggling. Instead of filing a complaint for illegal dismissal, they file for injunction. NLRC issued the injunction. SC: there is no labor dispute. In the absence of a complaint for illegal dismissal, there is no labor dispute.

NLRC can not enjoin an ER from disciplinary proceeding against erring EE. They can not restrain an employer from investing an employee Because no one can investigate employees except the employer. The police cannot interfere with private affair such as disciplining employees.

COMPROMISE

Under the law we have the doctrine of conclusiveness which means any compromise settlement voluntary agreed upon by the parties is final and binding upon the parties. The only instance when compromise is set aside is when it is obtained through fraud or misrepresentation. The compromise is so conclusive that it can not be set aside simply because the employee change its mind nor because attys fee of lawyer was eliminated.

When it comes to waiver of rights it must be done by EE themselves. The lawyer or the union can not enter into compromise without the authority of some of the employees.

Compromise can still be entered into even if there is final judgment. As long as the parties voluntarily agreed to settle into a settlement. Ex. Judgment awarding 1M into complainant. The respondent can still enter into a lesser amount say 900K. Still valid, even if lower than judgment award.

Execution After decision has become final and executory. Next step is execution of judgment. The mere fact that you obtained a favorable decision does not automatically compel the employer to comply with the judgment. You have to file a motion for the issuance of writ of execution. Because a final and executory judgment is not self executing. You need a writ of execution to enforce the judgment. A writ of execution will be issued only when the decision has become final and executory. How we determine if the judgment

is final and executory?

period to appeal has lapsed or there is o appeal filed by losing party.

It is FINAL when no matters need to be done. It is EXECUTORY if

If the decision merely states that respondent pays backwages to complainant so ordered. Judgment is not yet executory. Why? Because the amount of backwages has not been computed. If you encounter a situation like that, an award of backwages without computation you do not move for the issuance of writ of execution. You file a motion for the computation of backwages. After you file a motion for issuance of writ of execution.

How will judgment executed? It is the sheriff who serves the writ of execution. It is served upon the losing party. He willgarninsh the funds of the ER or the appeal bond. If the bond pr the funds is not sufficient then the sheriff will levy on the other properties of ER. Afterwards execution sale will be conducted.

For execution sale to be valid:

1. There must be a prior levy

2. Notice of sale and posting in 3 conspicuous places

If you are a lawyer of respondent always make sure that prior execution sale there was levy of property and notice of execution sale (ES). Otherwise you can attack the sale for failure to comply with mandatory requirements.

If the losing party voluntarily pays for judgment award before execution sale then EXEC sale no longer proceed because judgment has already been satisfied.

ES can only be done 9am-5pm. It is awarded to highest bidder. The sheriff can not be a buyer in an ES. Winning party can be a buyer.

If price is more than judgment award the winning party must give the difference to the losing party.

There are other remedies you can avail of. Example LA refuses to issue writ of execution. You can file a petition for mandamus. You can also file a writ to quash writ of execution

when judgment has already been paid or the writ has been issued without authority or expired or improvidently issued.

5 years from entry of judgment you can file a motion for execution. After lapse of 5 years you can not file a motion for execution. You have to file a separate action for the revival of judgment. It is no longer a continuation of the proceedings it is already a new action.

Petition for revival of judgment. You have to file petition within 10 years from finality of judgment.

Suppose the property being levied is claimed by 3rd party? What will be the remedy? Example the buildg that was obtained was enforced against Y but X claimed to be the owner. What is the remedy of X? File a third party claim with LA within 5 days from posting of notice of ES.

Suppose the ER will not allow the sheriff to levy on the properties what woould be the remedy of the party? File a motion for break open order.so sheriff can enter company premises.

Prescription

1. ULP-1year from accrual of action

2. CRIM Action for illegal recruitment

a. LOCAL- 3years

b. OVERSEAS- 5years

c. SYNDICATE/LARGE SCALE- 10 years

3. Money claims-3 years from accrual thereof

4. Pertains not only to those prescribed by law but also to CBA. Whether it arises from law or CBA.

5. Illedal dismissal/reinstatement- labor code does not specify prescriptive period for such situation. So we have to go to provision of civil code. 4 years. Art. 1146.

September 10, 2013

ILLEGAL RECRUITMENT

IMPORTANCE OF KNOWING THE LEGAL DEFINITION OF RECRUITMENT

It is important for us to know the legal definition of recruitment and placement because it is determinable of whether or not the person is guilty of illegal recruitment and if the person has not committed any of the acts enumerated in the definition then it is a recruitment activity, therefore in terms of illegal recruitment prosper.

DEFINITION OF ILLEGAL RECRUITMENT

So the law defines illegal recruitment as the act of canvassing, contracting, hiring or procuring workers, utilizing, transporting, enlisting including contract services, referrals, advertising or promise of employment whether for profit or not, whether for local or overseas employment.

We will note from the definition that the common element there is promise of employment; so essential element of recruitment and placement is promise of employment. Without the promise or offer of employment there is no recruitment activity.

The promise of employment can be inferred from the act of requiring a person to submit pictures, NBI Clearance, birth certificate, payment for passports, placement fees and

other expenses.

cannot be considered as a recruitment activity.

But the mere act of procuring a passport or airline ticket without more

CASE In one case, there is a person who promised or enticed another to shell out 50,000 for the purpose of assisting him in obtaining a passport and an airline ticket but nothing came out of it so the victim filed a complaint for illegal recruitment but the SC held that under the situation there is no illegal recruitment because the person did not a promise or offer employment in fact the receipt that was issued was only for the cost of paying the visa, passport and airline ticket nothing more and there was no offer of employment., hence the SC ruled that there was no illegal recruitment.

The nexus therefore of illegal recruitment is offer or promise of employment and the

recruitment is offer or promise of employment and the NUMBER OF PERSONS RECRUITED IS IMMATERIAL. There

NUMBER OF PERSONS RECRUITED IS IMMATERIAL. There can be illegal recruitment even if only one person was recruited.

WHO CAN ENGAGE IN RECRUITMENT AND PLACEMENT OF WORKERS

Under the law, Article 16, only public employment officers can engage to recruitment and placement of workers. The POEA can recruit and place workers on a government to government basis.

EXCEPTION Exceptionally, the private sector is granted the privilege to engage in recruitment and placement but limited to private recruitment agencies, private recruitment entities, shipping or manning agencies and other entities that may be authorized by the Secretary of Labor.

CAN

EMPLOYMENT?

FOREIGN

EMPLOYERS

DIRECTLY

HIRE

FILIPINO

WORKERS

FOR

OVERSEAS

This is called the

cannot hire any Filipino worker for overseas employment. Foreign employers can only hire Filipino workers for overseas employment through the licensed recruitment agencies or entities.

BAN ON DIRECT HIRING - foreign employers

or entities. BAN ON DIRECT HIRING - foreign employers EXCEPTION And of course exempted from this

EXCEPTION And of course exempted from this ban on direct hiring is hiring of the members of the diplomatic force or by an international organization or other employers allowed by the Secretary of Labor to directly hire workers.

WHAT IS A NAME HIRE?

So if the foreign employers cannot directly hire Filipino workers for overseas

employment then a Filipino worker who directly applies in a foreign employment is called a NAME HIRE but the name hires are still required to register with POEA for their

protection.

The name hires must submit to the POEA a copy of his:

a. employment contract

b. valid passport

c. employment visa

d. certificate of clinical fitness

e. and the attendance in the pre-departure orientation seminar.

WHO CAN OPERATE A RECRUITMENT AGENCY?

Not every person can operate a recruitment agency, only Filipino citizens or partnership at least 75% are Filipino partners or corporations 75 % of which are comprised of capital stock which are owned by Filipino citizens and engaged in recruitment and placement whether for local or overseas employment.

CERTAIN PERSONS DIQUALIFIED FROM ENGAGING IN OVERSEAS RECRUITMENT AND PLACEMENT

There are certain persons or entities whoare disqualified from engaging in overseas recruitment and placement. Under the law travel agencies and sales agencies of airline companies are disqualified or prohibited from engaging in recruitment and placement for overseas employment.

The disqualification extends to the officers or members of the board of directors of the travel agency or to corporation or partnerships whose officers are also of the same members of a travel agency. Also disqualified are persons whose licenses to recruit have

been cancelled or revoked. Persons who have been convicted of illegal recruitment or persons who have been found to engaged in illegal recruitment. This means that if a complaint for illegal recruitment was filed in the prosecutor's office and the prosecutor finds that the respondent has committed illegal recruitment then the respondent is disqualified from engaging in recruitment and placement. And the disqualification also extends to government officers who are in charge with the implementation of the Migrant Worker's Act such as DFA, POEA, NLRC, DOLE, Bureau of Immigration, regional overseas filipinos, Manila International Airport, NBI and also other agencies who are in charged with the implementation of the Migrant Worker's Act.

Also disqualified are persons who have derogatory records as certified by the Anti-Illegal recruitment branch of the POEA.

LICENSE REQUIRED

Now considering that private recruitment is a mere privilege, a license to operate must be obtained. Now when it is for local employment from the Bureau of Local Employment, if it is for overseas employment then the license should be obtained from the POEA. And the license will be granted if the applicant has obtained the required capitalization and required office restraints plus the other documentary requirements such as the table of organization and other documents that are required such as the proof of financial capacity, proof of marketing capability, clearance of all the officers and members of the board from the NBI or from the police authorities.

PERIOD OF VALIDITY OF THE LICENSE

The license is valid for 2 years from the date issuance in case of local employment and 4 years in case of recruitment for overseas employment and the license is valid all over the Philippines if it for local employment or the place indicated in the license if it for overseas employment.

LICENSE IS PERSONAL

And the license is a personal matter. It cannot be used directly or indirectly by any person other than the one in whose favor it is issued. So if the owner or the sole proprietor of the recruitment agency dies, the license cannot be transferred to the heirs, the license is automatically cancelled. Similarly if a recruitment agency organized as a partnership agreed to incorporate, the license of the partnership is automatically revoked. The new entity or corporation should apply for a new license. If the partnership has been dissolved, the said license will automatically be revoked. Now how about if the partnership or the corporation merged with another partnership or corporation, what happens with the license of the agencies concerned? In that situation, the license is still automatically revoked. The new entity will have to obtain a new

license, it cannot use any of the license of the merging partnerships or corporations. Another limitation on the use of the license is that it cannot be used in any place other

than that stated in the license. The license for overseas recruitment may only be used in

the place stated in the license.

place if, the recruitment is made under the PESO act of 1999 or when the POEA gives a

special permit to a recruitment agency to engage in recruitment outside of the

The license cannot be transferred to another person because it is a

designated place.

personal grant. Other limitations imposed by law is the transfer of business address. If a

recruitment agency would want to transfer its address, it cannot just transfer at will or move at will. It has to take prior approval from the POEA. Also if the recruitment agency would want to employ additional representatives or employees, the agency must seek prior approval from the POEA. Likewise when an agency would want to establish additional offices, it has to obtain prior approval from the POEA.

Now exceptionally the license may be used in any other

REGULATORY BODIES OF RECRUITMENT AGENCIES

The regulatory bodies when it comes to recruitment agencies are bureau of local employment for local employment and it is the POEA for overseas employment and this agencies are empowered to suspend or cancel the license of recruitment agencies.

APPEAL AND PERIOD OF APPEAL IN SUSPENCION OR CANCELLATION OF LICENSE

If they made a decision suspending or cancelling the license, it can be appealed. The appeal is to the secretary of labor and employment if the if the decision was made by the regional director and the period to appeal is 10 days; that is for recruitment agencies for local employment. Now if the decision is rendered but the POEA, then the decision is appealable to the secretary of labor within 15 days.

CONDITION FOR THE ISSUANCE OF A LICENSE

Now posting of a bond is a condition for the issuance of a license. The bond is intended to secure all the claims that may be filed by the concerned workers. When the bond posted is in the form of a surety bond, the bonding company can be made liable even if it is not made as a party respondent to the case. So if the complaint is filed merely against the principal and the recruitment agency without including the bonding company, any decision that may be rendered in favor of the worker is also enforced against the bonding company even if it is not made as one of the respondents. The labor arbiter can even order without any motion the inclusion of the bonding company as a respondent.

BOND IS ONLY LIABLE FOR EMPLOYEE RELATED CLAIMS

The bond is liable only for employee related claims. It cannot be garnished to satisfy a claim that is not employee related.

CASE

A case in point is the case of capricorn, the recruitment agency obtained tickets from a

travel agency for the workers to be employed abroad but the recruitment agency wasn't able to pay the travel agency. The travel agency filed a collection suit against the recruitment agency then the travel agency was able to obtain a favorable judgment and when the execution finally came the travel agency sought to garnish the bond of the recruitment agency. The supreme court held that it could not be done because the claim

of the travel agency is not employee related notwithstanding the fact that the tickets are actually used for the workers employed abroad. The bond can only be use to satisfy the claims of employees which could be a claim for underpayment of wages or salaries for the unexpired portion of the contract.

BOND TO PERFECT APPEAL AND BOND TO OBTAIN LICENSE

You see under the present law, money claims of migrant workers are under the jurisdiction of the labor arbiter and if the labor arbiter awards a monetary judgment and the judgment is appealed a surety bond is required in order to perfect the appeal and so the employer appellant shall file an appeal bond. Now the bond required by the law is different from the bond required for appeal purposes from the decision of the labor arbiter. So the employer or the agency who appeals the decision of the labor arbiter is still obliged to post an appeal bond otherwise the appeal will not be perfected. The bond required under article 31 is merely a condition for the issuance of the license whereas the appeal bond is to be posted for the perfection of the appeal. So if the bond

is garnished and the bond is insufficient, in such a situation, the recruitment agency

must replenish that bond otherwise it cannot continue in engaging in recruitment and placement.

HOW SHOULD RECRUITMENT AGENCIES CONDUCT THEIR RECRUITMENT ACTIVITIES?

With regard recruitment agencies for local employment, they can only recruit workers

through their representatives who are duly authorized to recruit and registered with the department of labor. Okay if a recruitment agency for local employment will recruit workers in the province it has to obtain an authority to recruit and must register with the regional office of the department of labor and to ensure that the recruit is complete

it is required that the recruitment agency would require that the recruit submit a birth

certificate and to assure that the recruit is medically fit, it should require the recruit to obtain a medical certificate.

HOW

AGENCIES?

ABOUT

THE

CONDUCT

OF

RECRUITMENT

OF

OVERSEAS

RECRUITMENT

Recruitment agencies for overseas employment can recruit only for principals and projects that are accredited by the POEA, in case of seamen only to vessels that are

enrolled with the agency for it is therefore required that the principals abroad or the projects abroad or the recruitment agency must be accredited by the POEA.

CAN RECRUITMENT AGENCIES CHARGE ANY FEE FROM A WORKER?

When it comes to recruitment agencies for local employment, it is allowed to charge only placement fees from the worker equivalent to 20% of the first month of basic salary, aside from that, no other fees can be charged to the worker.

HOW ABOUT SERVICE FEES?

Service fees should be charged against the principal.

HOW ABOUT TRANSPORTATION EXPENSES OF THE WORKER?

Again it should be charged with the principal.

HOW

OVERSEAS EMPLOYMENT?

ABOUT

FEES

THAT

MAY

BE

CHARGED

BY

RECRUITMENT

AGENCIES

FOR

Recruitment agencies for overseas employment can charge placement fee from the worker equivalent to one month salary plus the cost of Like medical

Test. Only those two items are chargeable to

certificate, visa, custom passport, the worker.

Service fees are chargeable to the principal.

But the fees that are chargeable to the worker may only be charged if the worker has already obtained employment. It cannot be charged if the worker is still waiting for placement. It can only be charged if the employee is already assured of the employment.

MINIMUM WAGE FOR OVERSEAS FILIPINO WORKERS

Now what are the minimum

for the overseas filipino workers?

The contract for overseas employment shall contain wages which shall not be lower than the minimum wage in the host country or the minimum wage established by the multilateral convention or the minimum wage prescribed in the philippines which ever is higher. Which ever is the highest among the three. WHAT SHOULD BE CONTAINED IN THE CONTRACT?

The contract should also stipulate free transportation of the worker to and from the work.

Also free food and accommodation.

With just causes of terminating the contract.

And insurance coverage. The migrant workers act as amended now requires insurance coverage which will cover accidental death in the amount of 15,000 US $, 10,000 US $ for natural death and 7,500 $ for permanent total disability.

Also the insurance will cover repatriation, subsistence allowance of 100 US $ for 6 months if the worker is involved in a litigation In a foreign country.

The insurance will also answer for whatever monetary award may be gathered by the NLRC. Also transportation expenses for compassionate visit of one member of the immediate family if the migrant worker or overseas worker was confined for 7 days in a hospital.

Also covered by the insurance is medical evacuation or medical repatriation.

NOW WHEN SHOULD THE MIGRANT WORKER BE DEPLOYED?

The migrant worker or overseas worker should be deployed within 60 days from the issuance of the overseas employment certificate.

And the migrant workers can only be deployed in countries which assures protection to the migrant worker and such protection is indicated if the host country has labor or social legislation protecting the migrant workers or if the host country is a signatory to multilateral conventions protecting migrant workers or if the host country has a bilateral agreement with the philippine government for the protection of migrant workers.

AMOUNT REQUIRED TO BE REMITTED BY MIGRANT WORKERS

And what's the amount required by the migrant workers to remit a portion of their earnings to the philippines?

For seamen- 80% of their earnings.

For workers who's employment contract provides for free board and lodging- the remittance is 70%.

For workers who's contract does not provide for free board and lodging- 50%

But not all workers are obliged to remit a portion of their earnings. If the family of the worker decides to live abroad, the remittance requirement is no longer required.

Filipinos working in US military installations abroad are not required to remit a portion of their earnings.

Also, immigrants are not required to remit a portion of their earnings.

REPATRIATION OF MIGRANT WORKERS

Oh! repatriation of migrant workers. Who has responsibility?

The answer is. It is the responsibility of the recruitment agencies.

But if the worker is dismissed for an act imputable to his own fault, it is no longer the obligation of the recruitment agency to repatriate the worker.

Well how about in cases of emergency repatriation just like what is happening in Syria now? Who's responsibility is it?

Well it is the responsibility of the OWA overseas workers administration subject to reimbursement for the recruitment agency.

If there are underage migrant workers (when you say underage, it means below 18), it is mandatory for the government to repatriate said worker and the repatriation is chargeable to the recruitment agency and all the expenses paid by the underage worker shall be refunded by the recruitment agency. When it comes to minors repatriation is mandatory.

JURISDICTION OVER RECRUITMENT OF OVERSEAS

Now jurisdiction over recruitment of overseas workers has now been divided to the POEA and the labor arbiter.

POEA exercise jurisdiction on administrative aspect of employment and recruitment of overseas workers pertaining the license registration or the violation of the terms and conditions of the license. Well cancellation and suspension of the license is part of the administrative jurisdiction of the POEA. The second jurisdiction of the POEA is about disciplinary cases, this may pertain to employers or workers. Those are matters cognizable by the POEA.

JURISDICTION OVER MONEY

Now when it comes to money claims of migrant workers, the jurisdiction is now with the Labor arbiter or the NLRC by virtue of the migrant workers act.

REMEDY OF WORKERS ILLEGALLY DISMISSED

And the remedy available to the migrant workers that are illegally dismissed is to file a complaint for illegal dismissal to the labor arbiter.

And what could be the relief for migrant workers who are illegally dismissed?

The migrant workers who are illegally dismissed are entitled to reimbursement of their placement fees and other expenses plus salaries for the unexpired portion of the employment of the worker.

Now if you look at section 10 of the migrant workers act, there is a phrase in the migrant workers act that has been rendered unconstitutional. That phrase is " 3 months for every year of the unexpired term whichever is less " has been declared

unconstitutional in the case of sarangavs

Decided on march 24, 2010.

LIABILITY OF RECRUITMENT AGENCIES

And the liability of recruitment agencies is solidary as the principal. Even if it is only the principal that is named as the respondent, the recruitment agency will still be liable because it is provided by the migrant workers act that the liability of the recruitment agency is solidary.

ILLEGAL RECRUITMENT

We go now to illegal recruitment. There are two types of illegal recruitment.

The first is recruitment without a license or authority to recruit.

The second is violation of the prohibited acts on the labor code for local employment and the migrant workers act for overseas workers. The prohibited acts in the labor code and the migrant workers act are the same although there are some additions in the migrant workers act.

Unauthorized recruitment or unlicensed recruitment is illegal recruitment. This is criminal in nature.

Now when it comes to prohibited acts under the labor code and the migrant workers act it is immaterial whether or not there is a license. The mere fact that prohibited acts have been committed consummates the crime of illegal recruitment.

And illegal recruitment may be qualified, in which case it will have a higher penalty. It is qualified if committed by a syndicate. It is committed by a syndicate if committed by

a group of three or more persons.

Committed on large scale. When you say large scale, it is committed against three or more persons.

Illegal recruitment and estafa are two distinct crimes. So for a single act, the recruiter can be prosecuted for illegal recruitment and estafa.

PRESCRIPTIVE PERIOD TO FILE AN ILLEGAL RECRUITMENT CASE

Now the prescriptive period to file a case for illegal recruitment is 3 years for local employment and 5 years if the victim is an overseas worker and 20 years if committed in large scale.

POWER OF THE POEA TO CLOSE RECRUITMENT AGENCY

In the case of illegal recruitment the POEA is empowered to close The recruitment agency arbitrarily when found to be operating without a license. It is part of the regulatory power of the POEA.

And

employees

recruitment and placement.

if the

recruitment agency has been closed by the POEA, all the

working

therein

is

deemed

perpetually

disqualified

from

EMPLOYMENT OF NON RESIDENT ALIENS

officers or

in

engaging

We now go to employment of non-resident aliens. When it comes to employment of non-resident aliens, an employment permit is required. A non-resident employee cannot be employed in the Philippines without an alien employment permit. But this requirement is only good for non-resident aliens. Now for permanent resident aliens, only employment registration certificate is required. And if the alien wants to transfer to another employment it needs a new permit.

EMPLOYMENT OF APPRENTICES

We now go to apprentices.

When we say apprentice, it is a worker or employee that is hired on the job training plus theoretical instruction.

Not every employer can hire an apprentice. Only employers engaged in highly technical

industries may employ apprentices. And when we say highly technical industries the business employs or utilizes highly advanced technology. And apprentices cannot be just hired for any type of occupation. They can only be hired for apprenticeable occupations. And what are those apprenticeable occupations? The TESDA has the list of those apprenticeable occupations.

Well to qualify as an apprentice, the employee must be at least 14 years old. It is also required that the worker has the ability to comprehend and follow instructions.

The minimum wage of apprentices is 75% of the statutory minimum wage. The extent and duration is 6 months.

EMPLOYMENT OF LEARNERS

Let's now go to learners. Unlike apprentices, learners need undergo theoretical instruction. Learners are hired on semi skilled or non-apprenticeable occupations. And it is required that the employer has a learnership program duly approved by the TESDA in order that the employer can hire learners. Learners can only be employed when there are no experienced workers available and when it does not result in unfair competition or when it is necessary to prevent curtailment of employment opportunities.

The age requirement is atleast 15 years old.

HANDICAPPED WORKERS

The provisions on handicapped workers have been superseded by the magna carta of persons with disabilities. Under that, persons with disability are treated in an equal manner as able bodied workers.

October 1, 2013 Book 3, LabStan

ANSWERS TO QUIZ #3

1. If there is a claim for reinstatement regardless of amount-LA. Automatic yan.

If no reinstatement determine the amount. If the amount is 5k and less-RD. Anove 5k- LA. The amount is per complainant, not the total. If there are more than 1 complainant, the claim of each complainant 5k and below the jurisdiction is with the RD. So assuming that the total claim is 300k. As long as the claim of the employee is less than 5k without reinstatement, it is with RD.

2. Prescriptive period

A. ULP- 1 year from accrual

B. Claim for Reinstatement-4 years (basis: civil code)

dont be confused minsan kasi there is dismissal by reason of ULP. Baka makita niyo, ULP tapos 1 year agad, NO. Because remember when there is illegal dismissal whether arising from ULP or not, there is illegal dismissal the remedy of which is reinstatement with backwages. If the complaint is for illegal dismissal kahit for ULP pa yan the claim is for reinstatement, so it is not 1 year but 4 years.

3. Correction of wage distortion, distinguish between organized and unorganized.

ORGANIZED:

1. Negotiation with union

2. Voluntary Arbitration

UNORGANIZED

1. EE negotiate

2. NCMB

3. NLRC for compulsory arbitration. Napaka simple db??

4. (Problem regarding the board and lodging)

1. GR: it can be deducted because facilities are part of wages

EXC: there is employment contract. It is provided in the contract that in addition to his

salaries he is entitled to free board and lodging. So the general principle will not apply.

2. Can the restaurant require the EE to put up a deposit for loss and breakage? Again,

GR: NO. EXC: it is a regular practice. But that is not the point. The restaurant already charges the, collects service charges.

Remember that service charges, certain percentage are intended for loss and breakage.

5. LA dismiss cross claim: see previous lecture ( September 3, 2013)

6. OT: Mr. quickie is engaged to wait.

7. There is no justification for RD to award to those employees no longer in the service.

Title 1, book 3. General working conditions.

1. Normal hours of work

2. Overtime pay

3. Meal periods

4. Night shift differential (NSD)

5. Holiday pay

6. Weekly rest period

7. Service incentive leave (SIL)

8. Premium pay for rest day and holiday

These generally apply to all.

EXC: (memorize)

1. Gov EE

2. Managerial EE. When we talk of Mgr. EE in book 3, do not use the definition of book

5 in Labor Relations because there is difference between the definitions.

3. Field personnel

4. Persons in personal service of another

5. Members of the family of the ER who are dependent on him for support

6. Workers who are paid by result

7. Domestic helpers

They are not entitled to premium pay, hours of work,SIL, NSD, holiday pay. Etc

Who are Gov EE? Those employee of national government, GOCC governed by civil service law, and their charter.

managerial EE as defined in book 3, persons who primary duty in the management of the establishment or the department thereof, who cutomarily directs 2 or more persons and has authority to hire and fire EE of lower rank or atleast can give effective recommendation to hire and fire of EE of lower rank. In this regard, supervisory EE may be considedered as a managerial EE. Which means that if supervisory EE exercises effective recomendation then he is not covered by general working conditions.

Officers and members of the

directly related to management policies of ER and customarily and regularly exercises discretion and indedpendent judgment or regularly and directly assist employee and those who do not devote more than 20% of their hours of work in a work week to activities which are not directly and closely related to the performance of the work above mentioned.

managerial staff pertains to those who perform matters

Field personnel Those who perform or away to the principal place of business and their hours of work may not be determined with certainty. So there are 2 elements to constitute field personnel to be exempted from general working conditions. An example of that would be a collector as veey well known performs duties away from the principal place of business. While he is outside the ER has no way to know the collector actually does his job. That is why, the general working conditions will not apply to collectors.

Family members. They are exempted if they are dependent upon the employer for support. When we say family members, it pertains to parents and children, houseband and wife, ascendants descendants, brothers and sister by whole or half blood. Cousins and in laws are not included in the term family members. Unless declared helpers.

Domestic workers act Now entitled to:

Weekly rest day SIL Remember, domestic workers are entitled to weekly rest day. However, they are not entitled to additional compensation or premium pay. They are only entitled to corresponding compensation for the hours they actually work.

Persons in the personal service of another Example: family drivers, body guards

Workers paid by result

Hours of work: 8 hours/day.

Refers to the time the empoyee starts working. It does not refer to ordinary day, monday, tuesday except when the employee starts working up to .

Any work rendered in excess of 8 hours: overtime

(Illustration to the board)

8am

8am

|---------------|---------------------|---------------|

Mon

4

4

Tues

If the EE rendered 4 hours service here (8am+4hours) and another 4 hours (4am-8am) there is no overtime yet because it is still considered as 8 hours working hours in a day. As long as the service is rendered with in 24 hours from star of work.

To determine whether the time consummed by EE is below hours of work. It includes the time when the EE is permitted to suffer to work Or all the time when the EE is required to be on call/duty

(engaged to wait and waiting to be engaged principle) If an EE is ENGAGED TO WAIT- compensable or entitled regardless whether the EE perform a productive work or not. Ex. A company driver while waiting for his boss in the office plays chess during the 8 hour period that is compensable even what he did is merely to play chess or badketball. That is compensable because he was engaged to wait. But if EE is WAITING TO BE ENGAGED it is NOT compensable because there is no engagement yet.

When is there significance? for the purpose of determing whether EE has rendered hours of service or in excess to 8 hours entitled to overtime pay.

There may be instances when there may be interruptions like brownouts or when the

machinery is repaired. Under these situation the compensability with the time spent is with regards to the duration. If interruption is 20mins or less- compensable. If exceeds 20mins- no longer considered as compensable working time. As long as the EE is relieved or free to do anything for his personal purpose. Because if the EE can not use the time for personal purpose then he is engaged to wait until the power resumes or the machinery is repaired. Other than that if the EE is completely relieved of his duties, interruptions in excess of 30mins is not considered compensable working time.

Night Differential Additional compensation for sevice rendered between 10pm-6am. And the rate is 10%.

Overtime pay This refers to compensation or service rendered in excess of 8 hours. This does not refers to service rendered on a rest day or holiday. Rate: 25% ordinary day 30% on holiday or rest day

Offseting under time to over time is not allowed. What does that mean? Supposing the EE takes an undertime on Tues, he worked only for 4 hours that day. On Wednesday he rendered 12 hours of work to compensate for his undertime for the previous day. The ER cannot evade payment for the overtime for the servoce rendered on Wed.

GR:

involuntary servitude EXC: 1. War

2. Urgent repairs

3. Calamities

4. Other emergencies

ER

cannot

compel

EE

to

render

overtime

service

because

it

would

violate

Weekly rest day This is for 24hour period after every 6 consecutive normal hours of work. Again, just like OT, an ER cannot compel an EE to work om his rest day except also in instances mentioned in the law.

Rate of Premium pay on Rest day 30% for ordinary day 50% if work on holiday or rest day

Remember, premium pay is given only when the EE actually render work on that day. Unlike in holiday pay, the EE is entitled to pay even if he does not work that day.

holiday pay Additional compensation given to an EE during regular holidays

Even if the EE does not work, he is paid. If he works, there is a double pay. 100% for service rendered, the other 100% is for holiday premium. Suppose there are 2 holidays on the same day and that seyimes happen. Example, araw ng kagitingan and maundy thursday. In that situation the EE is entitled to holiday pay for both holidays. So he gets 200% if he does not work. If he works, he gets 300%. This is given only to covered EEs.

Monthly paid are also entitled to holiday pay. In determining in whether monthly paid EEs if holiday pay is given, it should be determined by the divisor used in computing the daily rate. If the divisor used is atleast 261 days or 365 days then holiday pay is incorprated in the monthy salary.

How about the EE is on LOA/ vacation leave/sick leave, will the EE be entitled to holiday pay that fall on that leave? It depends. Whether the leave is with pay or not paid. With pay- entitled Without pay-not entitled

How about absences? Absences severes the right to holiday pay. Under the rules, if the EE is absent without pay on the day before the regular holiday-not entitled. For example, on Wed an EE was absent without pay, he is not entitled to holiday pay for maunday thurs. But if the EE worked on maundy thurs he will be entitled to the holiday pay on Good Friday.

How about holidays falling during closure of establishment If the closure is temporary- Entitled If permanent-not entitled

Service charges Pertains to establishments that collect such charges like restaurant, hotels The division is 85EE:15ER to answer for the breakage and losses

Statutory leaves

Under the labor code we have the SIL This is akin to vacation leave, the rate is 5 days with pay commutable to cash if unused.

To be entitled: must render atleast 1 year of service. Entitlement accrues after 1 year

Maternity Leave This is a benefit under Social Security law Maternity leave available to female employee only who on occassion of child birth, miscarrage and abortions. It is good only up to 4 deliveries. To be entitled to this leave, the EE must have completed atleast 3 contributions within 1 month period preceeding

child birth, abortion or miscarriage (BAM)

Paternity leave It is granted by RA 8187. This is available only to Male EE only as long as they are married to a female. Available only to male EE whose lawful wife suffers from miscarriage, abortion or childbirth. It can be enjoyed before during or after delivery of the wife. As long as it is availed of within 60 days from the delivery. The rate is 7 days. Not convertible to cash if UNUSED.

To be entitled:

1. The spouse who gave birth must be the lawful wife

2.at the time of BAM, he must be connected with the company

3. Must be cohabiting with his lawful wife

Available only to the first 4 children

Parental leave for solo parent

Solo parents are those male or female who are

1. given the resposibility of parenthood as a result of rape

2. death of spouse

3.detention of spouse for atleast 1 year

4. Incapacity od spouse

5. Abandonment for atleast 1 year

6. Legal separation of spouse for atleast 1 year as long as he is entrusted of the custody

of child

7.declaration of annulment with custody of child

8. Unmarried who keeps his child than give it to orphanage

9. Poster parent accredited by DSWD

10. Family member who assumes the responsibility of head of parent as result of death,

abandonment of parents

Rate is 7days. Leave is not convertible to cash.

Leave for victims of VAWC granted by RA 9262

1. This is available only to female EE

2. Personally or her child suffers or threatened by physical, sexual or mental abused by

husband or his former husband, person whom she had a dating relationship 3. Must obtain from prosecutor or the baranggay a certificatin of pending case for VAWC

Rate is 10days not convertible to cash. May be extended when there is necessity indicated in the protection order. To be used only for the purpose of attending medical of hearing not for anything else

Special leave for women EE by RA 9710

Female EE who undergo surgery by reason of gynecological disorder Rate: 2 months with full pay not cummulative to cash

To be entitled:

1. Must render atleast 6months of continuous service

Special working conditions Certain of EE are under special working condition. Women EE are obliged to have family planning even ER who have atleast 200 EE Support services such as day care and breast feeding and lactation centers Women EE are also granted special rights like the right not to be discriminated against. The law now institutionalizes the equality of men and women.

Right against dismissal because of pregnancy. Just because a woman is pregnant does not authorize the ER to dismiss or get rid of her. Neither can the ER prevent the woman from being married. That is unlawful. Even educational institutions are forbiden from dismissing a faculty member or teacher simply because they got pregnant whether it is out of wedlock or not. The school now is forced to let the woman go on leave of absences if necessary.

Child workers What is a child worker? Refers to persons below 18 years old. Under the lawq the minimum age of EE is 15y/o. It is unlawful to employ a person who is below 15.

EXC: 1. When the child works directly under the responsibility of his parents or legal guardian. Provided, that only members of the family are employed thereof and the EM of child has not endangerd his life or impedes his normal development and he is provided with primary and secondary education and workmpeemit is obtained from DOLE.

2. When the EM of child is essential or necessary. In public entertainment such as

theater, television or radio or other forms of media. Subject to the following conditions:

EM contract issued to parents or guardian submitted to DOLE for approval. ER must institute measures for the protection of the child. Work permit is necessary. If the child is merely an extra or taken on the spot, he may cast out in the film and no permit is necessary. mere notice to DOLE will suffice.

Hours of work of children: not more than 4 hours if below 15yrs old. No more than 20 hours a week. No work between 6pm-8am. For 15-18yrs old, may mot work beyond 8hrs a day nor more than 40 hours a week. No work from 10pm-6am.

Children regardless of age may not employ for hazardous occupations Cannot be model for gambling, alcohol or pornography, cigarettes or anything pertaining to tobacco

Domestic Workers Repealed by DW act. Special working conditions are prescribed by DW act. Minimum age is 15 Entitled to free board and lodging, medical attendance Daily rest period of 8hrs a day Weekly rest period 24hour Minimum wage varies upon the location. NCR-2,5k/month, chartered cities-2k, other

localities-1,5k

13month pay SIL Coverage of SSS, philhealth and pag ibig

Termination of EM of DW Can be terminated anytime ic there is a just cause No JC- can be terminated only up to the agreed period NO agreed period-can be terminated by giving atkeast 5days advanced notice.

What happens if ER/DW does not give 5 days advanced notice? In that situation, the ER is required to give 15days equivalent pay and conversely is liable for or forfeits 15days salary.

No workers may be employed in manufacturing of explosives or other substances or drugs or poisonous substances or other jobs that requires exposure to toxic substances.

night workers This refers to EE which job requiees performance of work at night from 10pm to 6am for a perod not less than 7 hours. call center agent falls within this classification. It does not include those enagaged in maritime, inland navigation, agriculture, stock raising, fishing.

Certain standards for night wokers. 1.They are entitled to health assessment prior to their assignment to night duty, before taking their assignment or at regular intervals or whenever they experience health difficulties 2. Facilities like first aid or emergency medicines, lactation station, separate toilet facilities for men and women, facility for drinking water, for transportation or sleeping quarters separate for men and women except when transpo is available for 24 hours

These working conditions are important whenever DOLE exercise visitorial power. Not only the monetary benefits the DOLE will inspect bit also the working conditions like lactation station and other facilities required of each and special workers

Wages Refers to compensation payable by an ER to an EE which implies that there shoul be an

ER-EE relationship, if there is none, the compensatin is not considered wages.

Salary vs wages Seemingly, there is no distiction with the 2 but there is a fine distiction. Under the civil code, wages are exempt from execution. It refers to lower grade of EM unlike salary wch denote a higher grade of EM.are salaries exempt from execution or attachment? In one case, th SC held that the exemption in civil code refers only to wages. Salaries are not exempt from execution or attachment. So, if you are a VP earning say 500k a month, your salary can be garnished for some execution or attachment. Unlike if you are minimum wage earner your wages can not be attached or garnished except for debts incurred for

In this jurisdiction we follow the

A benefits that has been granted for a certain time it can no longer be taken away or

reduced. Unless the ground was done by mistake. Then the ER can recover erronously given. There can be Mistake of fact or mistkae of law. Mistake of law is in the form of

mistake in the interpretation of the law.

principle of non diminution of benefits.

We follow the no work no pay principle.

It applies to all EE tonthose daily paid or monthy paid. For monthly paid EE, absents

himself, he is not entitled to salary for that day. Then, the ER can validly deduct the

absences from his pay.

Wages should be paid in legal tender. If ER does not pay the EE of legal tender then it does not produce the effect of payment. Even if there is an agreement that they should be paid in kind, it is not a valid stipulation. It will not prevent the EE to get or claim for payment of services rendered.

Time payment: 2x a month, every 2 weeks

Place of payment: place of undertaking EXC: there is violation of peace and order condition Occurence of calamities

Payment Should be paid direct to the EE. EXC: EE authorizes the ER to give wages to another person, must be in writing In case of death of EE. It should be paid to the heirs. No longer by estate proceedings but a simple affidavit attesting to the fact that they are the heirs in the exclusion of other persons will suffice

Suppose the ER goes bankrupt? How do the wages be paid? Art 110, workers enjoy preference. It must be paid ahead. Take note that it should be correlated with the civil code provision. So nothwithsatnding the fact that there is a provision in 110 tht the workwrs should be paid ahead of the gov

and other creditors, it is not automatic. You have to stipulate the kind of credit that is being collected. Art 110 comes to play only when there is an exergency or bankrupcy proceedings. It will not apply if the ER is under rehabilitation. Because in rehabilitation the assets or properties are not for distribution, so there is no sense in who shoukd be paid first or last.

Under civil code there are 3kind of credits. There are the special preferred, ordinary preferred and common credits. Special preferred credits enumerate the specific properties which must 1st be paid. Ex. In a case of construction of a building, workers including the engineers and architects who constructed the building has a lien on that particular bldg. so if, the ER gets bankrupt the EEs or workers inlcuding engrs and architects were not paid their corresponding compensation, they have a lien on that particular building which means in ghe distribution of assets of the bankrupt ER, they should be paid ahead of all other creditors except in government. Suppose, in the building there are office workers employed by the EE. Do they also have a lien on that particular building? The answer is no. Because the unpaid wages of office EEs are considered as ordinary preferred credits. So, notwithstanding the provision of Art 110, the claim for provision of Office EEs, will be subordinated to the claim of the construction workers because they have a lien over the property.

Prohibitions against wages-reading matter

Art106. Contracting and subcontracting Salient point:

In a valid subcontracting, the EEs of subcontracting does not become the EEs of the principal. They remain to be the EEs of the subcontractor. What is the implication of that? The claims filed by the EEs of subcontractors except unclaimed wages will be the sole liability of the contractor. So, if the contractor dismissed the EE, and a judgment is rendered reinstatement and backwages only the contractor is liable not the principal. There is no solidary liability when it comes to wages. How about separation pay? Let us assume that contractor closed down his operation or retrenchment. Will the principal be liable? The principal is not solidary liable for separation pay and this holds true for claims for damages against contractors by EE. Only contractor is liable. When will the pricipal be held solidary liable? Only for unpaid wages. If the contractor does not pay the wages or under pays his EE then the proncipal is solidary liable. Even the government can be held solidary liable. Ex. If the government agency enters into a subcontracting of security agency. The security agency does not pay the salaries of security guard, the SG can hold the gov solidary liable notwithstanding the rule that Labor code does not apply to government EEs and GOCC.

It could be different if there in Labor Only contracting. When we say LOC, it means tao lang. LOC has no capital of its own and merely supplies workers to the principal to perform work directly related to the work of principal ER. What is the effect of LOC? Unlike legitimate contracting, the EEs in LOC will be deemed EEs of principal. The LOC

will be comsidered as agent. What is the implication of that? It means that EEs of contractor will be placed in the same footing as the regular EEs of the principal. They will be entitled to the same rights and benefits as what is granted to regular EEs of the principal. The principal will be cosidered as the ER of the contractors.

Visitorial power and enforcement power Exercisable over establishments not by individual EEs. Even if only 1 EE requested for inspection, any violation covered by inspection will benefit all the EEs in ghe establishment. The reason is visitorial and enforcement power is exercisable over establishment. It is unlike dadjudicatory power, under 129 it is not limited in the amount of claim. Regardless of amount, RD can exercise his visitorial power. The adjudicatory power the authority is limited to wages and other money claims not exceeding 5k pesos filed by EEs who have already been terminated of EM and do not seek reinstatement thereon. If there is a claim for reinstatement regardless of the amount, the jurisdiction is with LA.

Appeal period is different LA->NLRC= 10 days RD (under 129) -> NLRC = 5 days

13th month pay Additional compensation computed on the basis of 1/12 of basic salary of EE per year

Not all are entitled to 13th month pay Only rank and file EE are entitied. Provided: Rendered service for atleast 1 month during the calendar year

EEs of piece work are also entitled to 13th month pay

If EE works on different establishments? Entitled to 13th month of both DW are now entitles.

Who are Not entitled

1. GOCC

2. EE who has not rendered 1 month service

3. Personal service of another (DW not inlcuded)

4. Purely on commission basis

If EE is earning commission and basic salary, he is entitled to 13th month

5. EE already receiving equivalent

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