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BOOK FIVE

LABOR RELATIONS
TITLE 1
POLICY AND DEFINITIONS
CHAPTER 1
POLICY
Article 211 Declaration of Policy
A. It is the policy of the state:
(a) To promote and emphasize the primacy of free collective
bargaining and negotiations, including voluntary arbitration,
mediation, and conciliation, as modes of settling labor or
industrial disputes;
(b)To promote free trade unionism as an instrument for the
enhancement of democracy and the promotion of social justice
and development;
(c) To foster the free and voluntary organization of a strong and
united labor movement;
(d)To promote the enlightenment of workers concerning their
rights and obligations as union members and as employees;
(e) To provide an adequate administrative machinery for the
expeditious settlement of labor or industrial disputes;
(f) To ensure a stable but dynamic and just industrial peace; and
(g)To ensure the participation of workers in decision and policy
making processes affecting their rights, duties and welfare.
B. To encourage a truly democratic method of regulating the relations
between the employers and employees by means of agreements
freely entered into through collective, bargaining, no court or

administrative agency or official shall have the power to set or fix


wages, rates of pay, hours of work, or other terms and conditions
of employment, except as otherwise provided under this code.

In general, the policy of the state is to minimize government intervention in


the settlement of labor disputes.
To emphasize the primacy of free collective bargaining and negotiations,
the law expressly enjoins that no court or administrative agency or official
shall have the power to set or fix wages, rates of pay, hours of work, or other
terms and conditions of employment, EXCEPT:
(a) Under Article 122 of the labor code, where the Regional Tripartite
Wages and Productivity Boards are empowered to determine and fix
minimum wages rates in their region, provinces or industries therein;
and
(b)Under Article 263 (g) of the labor code, where the Secretary of labor
and employment is empowered to assume jurisdiction over a labor
dispute causing or likely to cause a strike or lockout, and decide it, or
certify he dispute to the NLRC for compulsory arbitration, in which
case, the secretary of labor and employment or NLRC may fix the
terms of a collective bargaining agreement in case of a deadlock in
negotiations.
(c) Power granted by Section 3 (i) of Executive Order No. 247, to the
POEA to secure the best terms and conditions of employment of
Filipino contract workers, which includes the power to prescribe the
minimum requirements
Article 212 Definitions

(a) Commission
(b)Bureau
(c) Board
(d)Council
(e) Employer includes any person acting in the interest of an
employer, directly or indirectly. The term shall not include any labor
organization or any of its officers or agents except when acting as
employer;
(f) Employee
(g)Labor Organization
(h)Legitimate Labor Organization
(i) Company Union
(j) Bargaining Representative
(k)Unfair Labor Practice
(l) Labor Dispute
(m)
Managerial Employee
(n) Voluntary Arbitrator
(o)Strike
(p)Lockout
(q)Industrial Union Dispute
(r) Strike Breaker
(s) Strike Area

Statutory Definition of Employer not complete


The term was intended to be understood in a broad meaning because:
(1) The statutory definition includes not only a principal employer but
also a person acting in the interest of the employer;
(2) The law itself specifically enumerated those who are not included in
the term employer , namely:
(a) A labor organization (except when acting as an employer);

(b)Any one acting in the capacity of officer or agent of such labor


organization;
Labor organization as an Employer
Under the law, the term employer includes labor organization who
acts as an employer. This situation arises when a labor organization hires
employees to work for it.
Unregistered Association as Employer
An unregistered association may be an employer independent of the
members it represents. The law does not require an employer to be
registered before he may come within the purview of the Labor code.
Statutory Definition of Employee
The term employee as defined in Article 212 (f) of the Labor code,
includes not only any person in the employ of an employer but also
individual whose work has ceased as a result of or in connection with any
current labor dispute or because of any unfair labor practice if he has not
obtained any other substantially equivalent and regular employment.
Substantially Equivalent Employment means a job similar to that which
the employee held at the time of his dismissal. The determining factor is
not the amount of compensation received by the employee but the nature of
the job itself and the career that it can offer the employee.

TITLE II
NATIONAL LABOR RELATIONS COMMISSION
CHAPTER I

CREATION AND COMPOSITION


Article 213 National Labor Relations Commission
The National Labor Relations Commission
The National Labor Relations Commission is a 24 man tripartite,
body composed of representatives from the public sector, workers sector
and employees sector. It is composed of eight (8) divisions, each composed
of three (3) members.
As a rule, the NLRC exercises its powers, functions, and duties through its
divisions.
The following functions, however, can only exercise by the NLRC
sitting en banc:
(a) Promulgation of rules and regulations governing the hearing and
disposition of cases;
(b)Formulation of policies affecting its administration and operations;
and
(c) Granting of temporary authorization for a particular division to hear
and decide cases of another division.
Quorum and vote
If the NLRC sits en banc, the presence of majority of all its members
is necessary to constitute a quorum.
On the division level, the presence of at least two (2) commissioners
of a division shall constitute a quorum.
The chairman
The chairman of the NLRC presides over all en banc sessions. He is
also the presiding commissioner of the first division.

The Executive Clerk


The Executive clerk assists the NLRC when sitting en banc. When
acting thru the First Division, the Executive Clerk performs similar or
equivalent functions and duties as are discharged by the Clerk of Court of
the CA.
The Deputy Executive Clerks
The Deputy executive clerks for the second, third, fourth and fifth
division assists the NLRC when acting thru its divisions. They perform
similar functions and duties as discharged by the Deputy Clerks of CA.
Article 214 Headquarters, Branches, and Provincial Extension Units
The territorial divisions are designed merely for administrative
efficiency. They do not confer exclusive jurisdiction to each division.
therefore, a commissioner from another division may be temporarily
assigned to another division in order to fill the gap brought about by the
retirement or temporary incapacity of a commissioner.
Article 215 Appointment and Qualifications
The

following

are

the

qualifications

of

the

chairman

and

commissioners of the NLRC


(a) Must be a member of the Philippine Bar;
(b) Must have been engaged in the practice of law in the Philippines for at
least fifteen (15) years, at least five (5) years of which must relate to
experience or exposure in the field of labor management relationships;

(c) Preferably a resident of the region where they shall hold office.
The following are the qualifications of Executive Arbiters and Labor
Arbiters:
(a) Must be a member of the Philippine Bar;
(b) Must have been engaged in the practice of law in the Philippines for at
least ten (10) years, at least five (5) years of which must relate to experience
or exposure in the field of labor management relations.
Term of office
The commissioners of the NLRC and the Labor Arbiters shall hold
office during good behavior until the age of sixty-five (65) years, unless
sooner removed for cause or become incapacitated to discharge their
duties.
The President of the RP may extend the services of the
commissioners and labor arbiters up to the maximum age of seventy (70)
upon the recommendation of the commission en banc.
Article 216 Salaries, Benefits and other Emoluments
NLRC Commissioners
Chairman same salary, allowances and retirement benefits, and
allowances as that of the Presiding Justice of the Court of Appeals.
Members same salary, allowances and retirement, benefits as those
of the Associate Justice of the CA.
Labor Arbiters are entitled to the same salary, allowances, retirement
and benefits as that of a judge of the RTC.

Article 217 Jurisdiction of labor arbiters and the commission.


Jurisdiction of Labor Arbiters
As a general rule, labor arbiters have original and exclusive
jurisdiction over the following cases:
1. Unfair labor practice cases;
2. Termination disputes;
3. Claims for wages, rates of pay, hours of work and other terms and
conditions of employment, if accompanied by a claim for reinstatement;
4. Claims for actual, moral, exemplary and other forms of damages arising
from employer employee relationship;
5. Cases arising from any violation of Article 264 of the Labor code,
including questions involving the legality of strikes and lockouts;
6. Claims for employees or domestic helpers involving an amount
exceeding Five Thousand Pesos (P5,000.00), regardless of whether
accompanied by a claim for reinstatement;
7. Money claims arising out of an employer employee relationship or by
virtue of any law or contract involving Filipino workers for overseas
deployment including claims for actual, moral, exemplary and other forms
of damages;
8. Wage distortion disputes in unorganized establishment; and
9. Enforcement or annulment of compromise agreement;
10. All other claims arising from employer-employee relations, EXCEPT
claims for employees compensation, social security benefits, medicare and
maternity benefits.

While Article 217 of the labor code speaks of original and exclusive
jurisdiction, the very same provision allows certain agency to share such
jurisdiction under certain conditions.
(a) Under Article 262 of the labor code, voluntary arbitrators are
vested with authority to hear and decide unfair labor practices and all other
labor disputes, upon agreement of the parties.
(b) Under Article 263 (g) of the labor code, the Secretary of Labor and
Employment is authorized to assume jurisdiction over a labor dispute
causing or likely to cause a strike or lockout in an industry indispensable to
national interest.
Unfair Labor Practices
An unfair labor practice case is a suit which charges a party with any
of the acts enumerated in Article 248 and 249 of the labor code.
Termination Disputes
General Rule: The labor arbiter has original and exclusive jurisdiction
over termination disputes involving all employees, whether agricultural
and non-agricultural.
Exceptions: The following termination disputes are beyond the
jurisdiction of the labor arbiters:
(a) Disputes involving termination of corporate officers;
(b) Termination disputes arising from interpretation

or

implementation of a collective bargaining agreement and those arising


from interpretation or enforcement of company personnel policies which
were initially processed at the grievance machinery of the collective bargaining
agreement.
Disputes involving termination of corporate officers

Termination of corporate officers is not a labor dispute but an intracorporate controversy.


Termination disputes arising from CBA or Personnel Policy
In order to remove a termination dispute from the jurisdiction of the
labor arbiter, the issue must pertain to unresolved grievance arising from
interpretation or implementation of a collective bargaining agreement or
company personnel policy.
Personnel Policies
Personnel policies are guiding principles stated in broad, long range
terms that express the philosophy or beliefs of an organizations top
authority regarding personnel matters.
Termination of employment resulting

from

enforcement

of

disciplinary rules and regulations falls within the original and exclusive
jurisdiction of the labor arbiter.
Termination disputes involving employees of electric cooperatives fall
within the jurisdiction of labor arbiters and not with the National
Electrification Administration.
Money claims of employees
If there is a demand for reinstatement, claims of employees for wages,
rates of pay, hours of work, and other terms and conditions of employment
fall within the original and exclusive jurisdiction of labor arbiter, regardless
of the amount involved.
If there is no demand for reinstatement, the following are the rules:

(a) If the aggregate money claim of each employee (including house


helpers) exceeds P5,000, the labor arbiter has jurisdiction.
(b) If the aggregate money claim of each employee (or house helper) does
not exceed P5,000, the Regional Director of the DOLE has jurisdiction.
Money claims of Migrant workers
General Rule: The labor arbiter has original jurisdiction and exclusive
jurisdiction over claims of migrant workers arising from employeremployee relationship or by virtue of any law or contract including claims
for actual, moral, exemplary and other forms of damages.
Exceptions: Claims for refund of fees collected from migrant workers
by their recruitment or manning agencies do not fall within the jurisdiction
of the labor arbiter. They fall within the original and exclusive jurisdiction
of the POEA.
Money claims of employers
If the labor code is not involved, money claims filed by an employer
against an employee will not fall within the original and exclusive
jurisdiction of the labor arbiter.
Money claims of Corporate Officers
The question of remuneration involving a person who is not a mere
employee but a stockholder and officer of a corporation is not a labor
problem. It is a matter that comes within the area of corporate affairs and
management, hence, a corporate controversy within the contemplation of
the corporation code. Therefore, the labor arbiter is devoid of jurisdiction
over this kind of controversy.
Claims for damages

The labor arbiter has original and exclusive jurisdiction over the
claims for actual, moral exemplary and other forms of damages arising
from the employer-employee relations.
To be cognizable by the labor arbiter, the claim for damages must
have a reasonable causal connection with any of the claims provided for in
Article 17 of the labor code.
If there is no reasonable causal connection with any of the claims
provided for in Article 217 of the labor code, the claim for damages will not
fall within the jurisdiction of the labor arbiter. This is exemplified by the
following illustrative cases:
(a) Claim for damages arising from negligence of a co-worker;
(b) Claim for damages arising from breach of contract of employment;
(c) Complaint for damages arising from malicious prosecution;
(d) Claim for damages arising from slanderous remarks of a corporate
officer;
Cases arising from violation of Article 264 of the labor code
The labor arbiter has original and exclusive jurisdiction over cases
arising from any violation of Article 264 of the labor code, including
questions involving the legality of strikes and lockouts. The jurisdictional
grant has two (2) aspects, namely:
(a) Jurisdiction over cases arising from any violation of Article 264 of the
labor code;
(b) Jurisdiction over questions involving legality of strikes and lockouts;
All other claims arising from employer-employee relations
All other claims arising from employer-employee relations, including
those persons in domestic or house hold service involving an amount

exceeding five thousand pesos (P 5,000) regardless of whether accompanied


with a claim for reinstatement, fall under the jurisdiction of the labor
arbiter.
The reasonable casual connection doctrine
Under the reasonable connection doctrine, if there is a reasonable
causal connection between the claim asserted and the employer employee
relations, the case falls within the jurisdiction of our labor courts.
Excluded from the jurisdiction of labor arbiters:
(a) Social Security benefits;
(b) Employees compensation benefits;
(c) Medicare (now Philhealth) benefits; and
(d) Claims against an International Organization because they enjoy
diplomatic immunity, hence, beyond the jurisdiction of the courts or local
agencies of the Philippine Government.
Wage distortion disputes
In establishment where there are no collective bargaining agreements
or recognized labor unions, any dispute arising from wage distortion shall
be settled through NCMB and, if unresolved after ten (10) calendar days of
conciliation, it shall be referred to the appropriate branch of the NLRC for
compulsory arbitration.
Enforcement or Annulment of Compromise Agreements
An action to enforce or annul a compromise agreement falls within
the jurisdiction of the Labor Arbiter.
The provisions of PD 1508 requiring the submission of disputes
before the barangay Lupong Tagapamayapa prior to the filing with the
court or other government offices are not applicable to labor cases.

Venue
All cases which Labor Arbiters have authority to hear and decide
may be filed in the Regional Arbitration Branch having jurisdiction over the
workplace of the complainant.
Period to decide cases
Article 217 (a) of the labor code mandates Labor Arbiters to decide
cases within thirty (30) calendar days after the submission of the case of
stenographic notes. However, cases involving overseas Filipino workers
shall be decided by the Labor Arbiter within ninety (90) days after the filing
of the complaint.
Jurisdiction of the NLRC
Original jurisdiction
The following cases fall under the original jurisdiction of the NLRC:
(a) Cases certified to it by the Secretary of Labor and Employment pursuant
to Article 263 of the labor code; and
(b) Injunction cases under Articles 218 (e) and 264 of the labor code.
Appellate jurisdiction
The following cases fall under the exclusive appellate jurisdiction of
the NLRC
(a) Cases decided by the RD-DOLE under Article 129 of the labor
code;

(b) Cases decided by the Labor arbiter.

Article 218 Powers of the commissionThe powers of the NLRC could be classified into
(a) Rule making power;
(b) Investigative power;

(c) Contempt power; and


(d) Injunctive power.
The following acts constitute direct contempt
(a) Misbehavior in the presence of or so near the Chairman or any member
of the commission or any labor arbiter that obstructs or interrupts the
proceedings before them;
(b) Disrespect towards any commissioner or labor arbiter;
(c) Offensive acts towards others; and
(d) Refusal to be sworn or to answer as a witness or to subscribe to an
affidavit or deposition when lawfully required to do so.
The following acts constitute indirect contempt
(a) Misbehavior of an employee or any officer of the Commission or
Arbitration branch in the performance of his official duties, or in his official
transactions;
(b) Disobedience or resistance to a lawful writ, process, order or decision;
(c) Any abuse of, or any unlawful interference with the process or
proceedings of the commission or labor arbiter not constituting direct
contempt;
(d) Any improper conduct, direct or indirect, to impede, obstruct, or
degrade the administration of justice;
(e) Assuming to be an attorney or representative of party without
authority;
(f) Failure to obey a subpoena duly served; and
(g) other grounds analogous to the foregoing.
The power of the NLRC to hold any person in contempt does not
extend to a Judge of the Regional Trial Court.

The authority of the NLRC to issue injunction is conditioned upon


the existence of a labor dispute. Without a labor dispute, the authority to
issue injunction belongs to the regular courts.
Labor dispute is any controversy concerning terms and conditions of
employment or the association or representation of persons in negotiating
fixing, maintaining, changing, or arranging the terms and conditions of
employment, regardless of whether the disputants stand in the proximate
relation of employer and employee.
Procedural requisites of labor injunction
(a) Verified petition alleging the acts which, if not restrained or performed
forthwith, may cause grave or irreparable damage to any party or render
ineffectual any decision in favor of such party;
(b) Personal notice served to all known persons against whom relief is
sought, including the Chief executive and other public officials charged
with the duty to protect complainants property, in the province or city
within which the unlawful acts have been threatened or committed; and
(c) Hearing wherein the testimony of witnesses for both parties shall be
taken with opportunity for cross examination.
Substantive Requisites of Labor Injunction
(a) Prohibited or unlawful acts have been threatened and will be committed
and will be continued unless restrained;
(b) Substantial and irreparable injury to complainants property will follow;
(c) Greater injury will be inflicted upon the complainant by a denial of
relief than will be inflicted upon dependant by granting the relief;
(d) Complainant has no adequate remedy at law; and
(e) The public officers charged with the duty to protect complainants
property are unable or unwilling to furnish adequate protection.

Injunction in labor dispute cannot be issued ex parte.


ARTICLE 226. Bureau of Labor Relations The Bureau of Labor Relations
and the Labor Relations Divisions in the regional offices of the
Department of Labor shall have original and exclusive authority to act, at
their own initiative or upon request of either or both parties, on all interunion and intra-union conflicts, and all disputes, grievances or problems
arising from labor management relations in all workplaces whether
agricultural or non-agricultural, EXCEPT those arising from the
implementation or interpretation of collective bargaining agreements
which shall be the subject of grievance procedure and/or voluntary
arbitration.
The Bureau shall have fifteen (15) working days to act on labor
cases before it, subject to extension by agreement of the parties.
INTRA-UNION DISPUTES is a controversy between and among union
members. It includes grievances arising from any violation of the rights
and conditions of union members, violation of or disagreement over any
provision of the unions constitution and by laws, or disputes arising from
chartering or affiliation of union.
INTER UNION DISPUTES is a controversy between and among
legitimate labor unions. It may involve representation questions for
purposes of collective bargaining or to any other conflict or dispute
between legitimate labor unions.
Specific types of inter-union or inter union disputes

(1) Cancellation of registration of a labor organization filed by its


members or by another labor organization;
(2) Disputes regarding the conduct of election of officers of a union or
workers association, including nullification of such election
(3) Audit of funds or examination of accounts of a union or workers
association;
(4) Deregistration of collective bargaining agreement;
(5) Disputes regarding validity of union affiliation or disaffiliation;
The pendency of an inter-union or intra union dispute or other related
labor relations dispute IS NOT A PREJUDICIAL question to a petition for
certification election. Therefore it is not a ground for suspension or
dismissal of the petition for certification.

ARTICLE 227. Compromise Agreements Any compromise settlement,


including those involving labor standards laws, voluntarily agreed upon
by the parties with the assistance of the Bureau or the regional office of
the Department of Labor, shall be final and binding upon the parties.
The National Labor Relations Commission or any court shall not assume
jurisdiction over issues involved therein except in case of non
compliance thereof or if there is prima facie evidence that the settlement
was obtained through fraud, misrepresentation or coercion.
COMPROMISE AGREEMENT is a contract whereby the parties by
making reciprocal concessions, avoid litigation or put an end to one already
commenced. The nature of a compromise is such that a party must give up
some of the rights that he has in consideration of the same act on the part
of the other side.

HOWEVER, if the consideration for the compromise was very much less
than the amount which the employee was entitled, it may be set aside for
being contrary to law, morals, or public policy.
A compromise entered into through a lawyer or representative is
conclusive or binding only:
(a) When the client has expressed his consent to compromise; or
(b)When the lawyer or representative is equipped with a special power
of attorney.
REMEDY IF THE COMPROMISE IS VIOLATED
When the terms of a compromise are violated, the aggrieved party can
avail of the following remedies:
Violation of a compromise agreement
(a) File the necessary action or motion to enforce the compromise;
(b)Regard the compromise as rescinded and insist upon his original
demand.
Violation of a compromise judgment
(a) File a motion for execution, in case of non-compliance;
(b)File an action to annul the compromise judgment on the ground of
mistake, fraud, violence, intimidation, undue influence, or falsity in
the execution of the compromise embodied in the judgment.
(c) File a petition for relief from judgment under Rule 38 of the Rules of
Court on the ground that the judgment was obtained through fraud,
mistake or excusable negligence.

QUITCLAIM executed in favor of a company by an employee amounts to


a valid and binding compromise agreement.
The present rule, therefore, is that once an employee executes a quitclaim in
favor of the employer, he is thereby estopped from filling any further claim
against his employer arising from his employment.

ARTICLE 228. (Repealed by B.P. 130)

ARTICLE 229. Issuance of Subpoenas. The Bureau shall have the power
to require the appearance of any person or the production of any paper,
document, or matter relevant to a labor dispute under its jurisdiction
either at the request of any interested party or at its own initiative.

ARTICLE 230. Appointment of Bureau Personnel. The secretary of Labor


and Employment may appoint, in addition to the present personnel of
the Bureau and the Industrial Relations Divisions, such number of
examiners and other assistants as may be necessary to carry out the
purpose of this Code.

Article 230 of the Labor Code is a grant of authority to the Secretary of


Labor and Employment to appoint personnel as may be needed by the
Bureau of Labor Relations in carrying out the purposes of the code.

ARTICLE 231. Registry of Unions and File of Collective Bargaining


Agreements The Bureau shall keep a registry of legitimate labor
organizations. The Bureau shall also maintain a file of all collective
bargaining agreements and other related agreements and records of
settlement of labor disputes and copies of orders, and decisions of
voluntary arbitrators. The file shall be open and accessible to interested
parties, and under conditions prescribed by the Secretary of Labor and
Employment, PROVIDED THAT, no specific information submitted in
confidence shall be disclosed unless authorized by the Secretary, or
when it is at issue in any judicial litigation or when public interest or
national security so requires.
Within thirty (30) days from the execution of a Collective
Bargaining Agreement, the parties shall submit copies of the same
directly to the Bureau or the Regional Offices of the Department of Labor
and Employment for registration accompanied with verified proofs of its
posting in two conspicuous places in the place of work and ratification
by the majority of all the workers in the bargaining unit. The Bureau or
Regional Offices shall act upon the application for registration of such
Collective Bargaining Agreement within five (5) calendar days from
receipt thereof. The Regional Offices shall furnish the Bureau with a
copy of the Collective Bargaining Agreement within five (5) days from its
submission.
The Bureau or the Regional Office shall be assess the employer for
every Collective Bargaining agreement a registration fee of not less than
one thousand pesos (P1,000) or in any other amount as may be deemed
appropriate and necessary by the Secretary of Labor and Employment for
the effective and efficient administration of the Voluntary Arbitration

Program. Any amount collected under this provision shall accrue to the
Special Voluntary Arbitration Fund.
The Bureau shall also maintain a file, and shall undertake or assist
in the publication of all final decisions, orders, and awards of the
Secretary

of

Labor

and

Employment

Regional

Directors

and

Commission.
PURPOSE OF REGISTRATION
The purpose of requiring the registration of a collective bargaining
agreement is to put notice on the existence of such agreement in order to
promote its stable and undisturbed administration.
Registration of a collective bargaining agreement is NOT ESSENTIAL to its
validity. Even if not registered, it is still valid and binding between the
parties.
PERIOD WITHIN WHICH TO REGISTER
The collective bargaining agreement should be registered within thirty (30)
days from execution.
Application for registration of multi-employer collective bargaining
agreements shall be filed with the BLR.
Supporting Documents
(a) Collective Bargaining agreements;
(b)Statement that the CBA was posted in at least two (2) conspicuous
places in the establishment for at least five (5) days before it
ratification; and
(This is mandatory requirement, its purpose being to inform the
employees in the bargaining unit of the contents of the agreements

so that they intelligently decide on whether to accept the same or


not)
(c) Statement that the collective bargaining agreement was ratified by the
majority of the employees in the bargaining unit.
If the collective bargaining agreement was not posted in accordance with
the rules, the application for registration shall be disapproved.
Remedy from denial of CBA Registration

(1) Re-Filing within the ten (10) day period from notice, re-file the
application with complete supporting documents
(2) Appeal if the application for registration is denied on other
grounds, the remedy is to appeal the order of denial within ten (10)
days from receipt.
ARTICLE 232. Prohibition on Certification Election. The Bureau shall not
entertain any other petition for certification election or any other action
which may disturb the administration of duly registered existing
collective bargaining agreements the parties EXCEPT under Articles 253,
253-A, and 256 of this code.

CONTRACT BAR PRINCIPLE Under the contract bar principle, the


existence of a duly registered collective bargaining agreement will bar the
holding of a certification election. The purpose is to promote stability and
fairness in collective bargaining agreements.
EXCEPTIONS TO THE CONTRACT BAR RULE

There are certain types of collective bargaining agreements which do


not fall within the operation of contract-bar principle, namely:
1. Those entered into with a labor organization which has not been
certified as the sole and exclusive collective bargaining representative
but merely accorded voluntary recognition by the management
despite the existence of another labor organization seeking
recognition;
2. Those which are not duly registered with the Bureau of Labor
Relations or the appropriate regional office of the Department of
Labor and Employment;
3. Those which are incomplete, specifically those which do not provide
for economic benefits to employees;
4. Those hastily entered into prior to or during the sixty day freedom
period. The reason for his is that there is an obvious desire to
frustrate the will of the employees in selecting their collective
bargaining representative.
5. Those which can no longer foster industrial peace and stability
because of schism in the union. Under this situation, a certification
election should be conducted to clear any doubt as to the employees
representation.
EFFECT OF AUTOMATIC RENEWAL CLAUSE
A collective bargaining agreement which provides for automatic
renewal in the absence of notice by one of the contracting parties of
intention to alter, modify, or terminate it prior to a specified period
preceding the termination will operate as a bar to a certification election.
However, this rule does not apply where a contesting union has given a

timely notice to the employer or has seasonably filed a petition for


certification election prior to the specified date for automatic renewal.
ARTICLE 233 Privileged Communication Information and statements
made at conciliation proceedings shall be treated as privileged
communication and shall not be used as evidence in the Commission.
Conciliators and similar officials shall not testify in any court or body
regarding any matter taken up at conciliation proceedings conducted by
them.
The privilege is intended to encourage the parties to make full
disclosure of facts and circumstances without fear in order to facilitate the
settlement of labor disputes in line with the policy of the state to promote
and emphasize mediation and conciliation as modes of settling labor
disputes.
ARTICLE 234 Requirements of Registration A federation, national union
or industry or trade union center or an independent union shall acquire
legal personality and shall be entitled to the rights and privileges
granted by law to legitimate labor organizations upon issuance of the
certificate of registration based on the following requirements:
(a) Fifty pesos (P50.00) registration fee;
(b)The names of its officers, their address, the principal address of
the labor organization, the minutes of the organizational
meetings and the list of the workers who participated in such
meetings;
(c) In case the applicant is an independent union, the names of all
its members comprising at least twenty percent (20%) of all the
employees in the bargaining unit where it seeks to operate;

(d)If the applicant union has been in existence for one or more
years, copies of its annual financial reports; and
(e) Four copies of the constitution and by laws of the applicant
union, minutes of its adoption or ratification and the list of the
members who participated in it
ARTICLE 234-A Chartering and Creation of a Local Chapter A duly
registered FEDERATION or NATIONAL UNION may directly create a
local chapter by issuing a charter certificate indicating the establishment
of the local chapter. The chapter shall acquire legal personality only for
purpose of filing a petition for certification election from the date it was
issued a charter certificate.
The chapter shall be entitled to all other legal rights and privileges
of a legitimate labor organization only upon the submission of the
following documents in addition to its charter certificate.
(a) The names of the chapters officers, their addresses, and the
principal office of the chapter; and
(b)The chapters constitution and by laws; PROVIDED, that where
the chapters constitution and by laws are the same as that of the
federation or the national union, this fact shall be indicated
accordingly;
The additional supporting requirements shall be certified under
oath by the secretary or treasurer of the chapter and attested by its
president.

LABOR ORGANIZATION

A labor organization is a union or association of employees which


exist in whole or in part for the purpose of collective bargaining or dealing
with employers concerning terms and conditions of employment.
WORKERS ASSOCIATION
A workers association is intended not for collective bargaining
purposes but only for the mutual aid and protection of its members and for
other legitimate purposes.
PURPOSE OF REGISTRATION
The purpose of registration of labor organization is to protect both
labor and public against abuses, fraud or impostors who pose as
organizers, although not truly accredited agents of the union they purport
to represent.
The law requiring the registration of labor organization is not
unconstitutional because it is a valid exercise of the police power,
considering that the activities in which labor organizations are engaged
directly affect the public interest. Registration is merely a condition sine
qua non for the acquisition of legal personality.
LEGAL PERSONALITY OF LABOR ORGANIZATION
Ordinarily, a labor organization acquires legal personality and attains
the status of legitimacy only upon the issuance in its name of a Certificate
of Registration.
However, an unregistered labor organization can acquire legal
personality and attain the status of legitimacy by affiliating with a duly
registered Federation or National Union, in which case, it becomes

Chartered Local, and its legal personality commences on the date of


issuance of the Certificate of Creation of Chartered Local.
The intent of the law in imposing lesser requirements in the case of a
chartered local of a federation or national union is to encourage the
affiliation of a local union with a federation or national union in order to
increase the local unions bargaining powers respecting terms and
conditions of labor.
A Labor union organized under the Corporation law merely gives it
juridical personality before regular courts, but it will not entitle such union
to the rights and privileges accorded by law to legitimate labor
organizations. It is the registration with the Department of Labor and
Employment that makes a labor organization a legitimate labor
organization.
INDEPENDENT UNION is a labor organization operating at the
enterprise level whose legal personality is derived through independent
registration.
To register an independent union, and application for registration should
be filed with the Regional Office of the Department of Labor and
Employment where it principally operates:
The application for registration should be supported by the following
documents:
1. Name of the applicant labor union, its principal address, the anems of
its officers and their respective addresses, approximate number of
employees in the bargaining unit where it seeks to operate, and a
statement that it is not reported as a chartered local of any federation
or national union;

2. Minutes of the organization meetings and the list of workers who


participated in such meetings;
3. Names of all its members comprising at least twenty percent (20%) of
the employees in the bargaining unit;
4. Annual financial reports if the applicant has been in existence for one
or more years; and
5. Constitution and by Laws, minutes of its adoption or ratification, and
the list of members who participated in it.

WORKERS ASSOCIATION is an organization of workers created for the


mutual aid and protection of its members for any legitimate purpose other
than collective bargaining.
To register a workers association, an application for registration should be
filed with the Regional Office of the Department of Labor and Employment
where it principally operates.
The application should be supported by the following documents
1. Name of the applicant association, its principal address, the names of
its officers and their address;
2. Minutes of the organizational meeting, and the names of the
individual members who participated therein; and
3. Constitution and By-Laws to which must be attached the names of
ratifying members, the minutes of adoption or ratification of the
constitution and by-laws and the date when the ratification was
made, UNLESS ratification was done in the organizational meeting,

in which case such fact shall be reflected in the minutes of the


organizational meeting.
Application for registration of workers association operating in one region
shall further be accompanied by a Resolution of Membership of each
member association, duly approved by its board of directors.
CHANGE OF NAME OF LABOR ORGANIZATION
Notice of change of name shall be filed with the Bureau of Labor
Relations or the Regional Office of the Department of Labor and
Employment where the labor organizations certificate of registration or
certificate of creation of a chartered local was issued.
(a) Proof of approval or ratification of change of name;
(b)Amended constitution and by laws.
The change of name of a labor organization does not affect its legal
personality.
All rights and obligations of the labor organization under its old name shall
continue to be exercised by the labor organization under its new name.
MERGER refers to a process where a labor organization absorbs another
resulting in the cessation of the absorbed labor organizations existence and
the continued existence of the absorbing labor organization.
CONSOLIDATION refers to the creation or formation of a new union
arising from unification of two or more unions.
In case of merger or consolidation, a notice of merger or consolidation shall
be filed with:

1. RO-DOLE that issued the Certificate of Registration in case of


INDEPENDENT labor unions and WORKERS association.
2. RO-DOLE that issued the Certificate of Creation of Chartered Local
in case of CHARTERED LOCALS; or
3. Bureau of Labor Relations in case of federations or national unions.
SUPPORTING DOCUMENTS FOR MERGER
1. Minutes of merger convention or general membership meeting of all
the merging labor organizations, and list of their respective members
who approved the same; and
2. Amended constitution and by-laws and minutes of its ratification,
unless ratification transpired during the merger convention, which
fact shall be indicated accordingly.
SUPPORTING DOCUMENTS FOR CONSOLIDATION
1. Minutes of consolidation convention of all the consolidating labor
organizations and list of their respective members who approved the
same; and
2. Amended constitution and by-laws and minutes of its ratification,
UNLESS ratification transpired during the consolidation convention,
which fact shall be indicated accordingly.
EFFECT OF MERGER
In case of merger, the legal existence of the absorbed labor
organization ceases, while the legal existence of the absorbing labor
organization is created. The newly created labor organization shall acquire

all the rights, interest and obligations of the consolidating labor


organization.
REMEDY
If the registration, change of name, merger or consolidation is denied
for failure to submit the complete requirements within the prescribed
period, the remedy is to re-file the application or notice with complete
supporting documents.

ARTICLE 235 Action on the Application

- The Bureau shall act on all

applications for registration within thirty (30) days from filing.


All requisite documents and papers shall be certified under oath by
the secretary or the treasurer of the organization, as the case may be, and
attested to by its president.
The mere filing of the requisite documents and papers, therefore,
does not automatically oblige the Bureau of Labor Relations to issue a
certificate of registration. The Bureau of Labor Relations is duty bound to
further check if the registration requirements under Article 234 have been
sedulously complied with.
Article 235 of the labor code requires the application for registration
and all its supporting documents to be:
1. Certified under oath by the Secretary or Treasurer of the
organization;
2. Attested to by the President.
Both requirements must be strictly complied with.

The mandatory attestation requirement also applies to notice of change of


name, notice of merger, and notice of consolidation and all their supporting
documents.
PURPOSE OF CERTIFICATION AND ATTESTATION
The certification and attestation requirements are preventive
measures against the commission of fraud. It is also intended to assure the
employer that the union it is dealing with is bona fide organization. one
which has not submitted false statement to the Bureau of Labor Relations.
REMEDIES
If all the legal requirements for registration are complied with, it
becomes the ministerial duty of the RO-DOLE or the BLR, as the case may
be, to approve the application for registration. If registration is refused
despite compliance with all the legal requirements for registration, the
remedy of mandamus, can be availed of to compel the registration of the
labor organization.
PETITION FOR CANCELLATION OF REGISTRATION
If the registration is granted, a petition for cancellation of registration
may be filed on any of the grounds provided for in Article 239 of the Labor
Code.
The remedy of certiorari IS NOT available because the act of
approving an application for registration of a labor organization is not a
judicial function but a ministerial duty.
ARTICLE 236 Denial of Registration; Appeal The Decision of the Labor
Relations Division in the regional office denying registration may be

appealed by the applicant union to the Bureau within ten (10) days from
notice thereof.
Grounds for Denial of Registration
The Regional Office of the DOLE or the BLR may deny the application for
registration of a labor organization on the following grounds:
a. Falsification or serious irregularities in the application for registration
or its supporting documents;
b. Non compliance with the requirements for registration, particularly
the certification and attestation requirements;
c. Failure to complete the registration requirements within thirty (30)
days from notice.
REMEDY
If the application for registration is DENIED on grounds other than
failure to submit the complete requirements, the remedy is to appeal the
order of denial within ten (10) days from receipt to the:
1. BLR if the order of denial was issued by the Regional Office of the
Department of Labor and Employment;
2. Office of the Secretary of Labor and Employment - if the order of
denial was issued by the BLR.
ARTICLE 237 Additional Requirement for Federation or National Unions
[subject to Article 238], If the applicant for registration is a federation
or a national union, it shall, in addition to the requirements of the
preceding articles, submit the following:

a. Proof of the affiliation of at least ten (10) locals or chapters, each of


which must be a duly recognized collective bargaining agent in the
establishment or industry in which it operates, supporting the
registration of such applicant federation or national union.; and
b. The names and addresses of the companies where the locals or
chapters and the list of all members in each company involved.

FEDERATION or NATIONAL UNION


A federation or national union is a labor organization with at least ten
(10) affiliates or chartered locals, each of which must be a duly recognized
or certified collective bargaining agent.
A federation or national union may be composed of
(a) Affiliates;
(b)Chartered locals or
(c) Combination of both.
To register a Federation or National Union, an application for registration
should be filed with the BLR.
The application should be supported by the following documents:
1. Statement indicating the name of the applicant federation or national
union, its principal address the names of its officers and their
respective address;
2. Minutes of the organizational meetings and the list of workers who
participated in such meetings;

3. Annual financial reports if the applicant has been in existence for one
or more years.
4. Constitution and by-laws, minutes of its adoption or ratification, and
the list of the members who participated in it.
5. Resolution of affiliation of at least ten (10) legitimate labor
organization, whether independent or chartered locals, each of which
must be a recognized or certified bargaining representative on the
establishment where its seeks to operate.
6. Names and addresses of the companies where the affiliates operates
and list of all the members in each company involved.
AFFLIATES are independently registered union, hence, they have a legal
personality of their own, separate and distinct from that of their mother
union.
CHARTERED LOCALS are not independently registered unions their
legal personality is derived from their mother union or federation, upon
issuance of a Certificate of Creation of Chartered Local.
The relationship between a federation and a local union or affiliate is
that of a principal-agent. This principal agent relationship exists even if the
local union is not independently registered.
Creation of Chartered Local
A duly registered federation or national union may directly create a
charter local by submitting to the Regional Office of the DOLE two (2)
copies of the following documents:
1. Charter certificate issued by the federation or national union
indicating the creation or establishment of the local/chapter.

2. Names of the local/chapters officers, their addresses, and the


principal office of the local/chapter;
3. Constitution and By-Laws of the local chapter;
The aforesaid documents should be certified under oath by the Secretary or
Treasurer of the local/chapter and attested by its president.

AFFILIATION OF AN INDEPENDENT UNION


An independent union may affiliate with a federation or national
union by obtaining the following:
1. Approval of the majority of the union members in a general
membership meeting duly called for the purpose; and
2. Resolution of affiliation from the board of directors of the union.
When a labor union affiliates with a federation, it becomes subject to the
laws of the federation. The constitution and by-laws and rules of the parent
body together with the charter it issues pursuant thereto to the subordinate
union constitutes an enforceable contract between the members of the
subordinate union inter se.

REPORT OF AFFILIATION
Affiliation of an independently registered labor union with a
federation or national union shall be reported to the RO-DOLE that issued
its certificate of registration.

The report of Affiliation shall be accompanied by the following


documents:
1. Resolution of the labor unions board of directors approving the
affiliation;
2. Minutes of the general membership meeting approving the affiliation;
3. Total number of members comprising the labor union and the names
of members who approved the affiliation;
4. Certificate of affiliation issued by the federation in favor of the
independently registered labor union;
5. Written notice to the employer concerned if the affiliating union is the
incumbent bargaining agent.
DISAFFILIATION
A local union has the right to disaffiliate from its mother federation.
A local union, being separate and voluntary association, is free to serve the
interest of all its members including the freedom to disaffiliate when
circumstances warrant. However, the decision to disaffiliate must be
approved by the majority of the union members.
Generally a labor union may disaffiliate from the mother union only
during the 60-day freedom period immediately preceding the expiration of
the collective bargaining agreement.
Exceptionally, disaffiliation may be carried out before the onset of the
freedom period, if there is substantial shift of allegiance on the part of the
majority of the members of the union.

ARTICLE 238 Cancellation for Registration The certificate of


registration of any labor organization, whether national or local, may be
cancelled by the Bureau if it has reason to believe, after due hearing, that
the said labor organization no longer meets one or more of the
requirements herein prescribed.
ARTICLE 238-A Effect of a Petition for Cancellation of Registration A
petition for cancellation of union registration shall not suspend the
proceedings for certification election nor shall prevent the filing of a
petition for certification election.
In case of cancellation, nothing herein shall restrict the right of the
union to seek just and equitable remedies in the appropriate courts.
Administrative Cancellation of Registration
The certificate of registration of a labor organization may be cancelled
administratively for failure to submit to the RO-DOLE or the BLR which
issued its certificate of registration or certificate of creation of chartered
local the following documents:
(a) Any amendment to its constitution and by-laws and the minutes of
adoption or ratification of such amendments;
(b)Annual financial reports;
(c) Updated list of newly elected officers, together with the appointive
officers or agents who are entrusted with the handling of fund;
(d)Updated list of individual members;
(e) Updated list of its chartered locals and affiliates or member
organizations, collective bargaining agreements executed and their
effectivity

period,

including

an

updated

list

of

authorized

representatives, agents or signatories in different regions of the


country, in case of federations or national unions.
HOWEVER, no certificate of registration shall be administratively cancelled
due to non-compliance with the reportorial requirements unless:
1. Non-compliance is for a continuous period of five (5) years;
2. The procedural rules were complied with; and
3. The labor organization concerned has not responded to any of the
notices sent or the notices were returned unclaimed.
ARTICLE 239 - Grounds for Cancellation of Union Registration The
following shall constitute grounds for cancellation of union registration:
(a) Misrepresentation, false statement or fraud in connection with
the adoption or ratification of the constitution and by-laws or
amendments thereto, the minutes of ratification and the list of
members who took part in the ratification;
(b)Failure to submit the documents mentioned in the preceding
paragraph within thirty (30) days from adoption or ratification of
the constitution and by-laws or amendments thereto;
(c) Misrepresentation, false statement, or fraud in connection with
the election of officers, minutes of the election of officers, list of
voters, or failure to submit these documents together with the
list of newly elected/appointed officers and their postal
addresses within thirty (30) days from election;
(d)Failure to submit the annual financial report to the Bureau
within thirty (30) days after the closing of every fiscal year and

misrepresentation, false entries or fraud in the preparation of


the financial report itself;
(e) Acting as a labor contractor or engaging in the cabo system or
otherwise engaging in any activity prohibited by law;
(f) Entering into collective bargaining agreements which provides
terms and conditions of employment below minimum standards
established by laws;
(g)Asking or accepting attorneys fees or negotiation fees from
employers;
(h)Other than for mandatory activities under this code, checkingoff special assessments or any other fees without duly signed
individual written authorization of the members;
(i) Failure to submit list of individual members to the Bureau once
a year or whenever required by the Bureau; and
(j) Failure to comply with the requirements under Article 237 [and
238].
Grounds for cancellation of Union Registration
Fraudulent Acts
The registration of a labor organization may be cancelled on the ground of
misrepresentation, false statement or fraud in connection with:
1. Adoption or ratification of the constitution and by-laws or
amendments thereto, the minutes of ratification, and the list of
members who took part in the ratification.
2. Election of officers, minutes of the election of officers and the list of
voters; and

3. Preparation of financial reports.


Unlawful Acts

The registration of a labor organization may also be cancelled for


committing the following unlawful acts:
1. Acting as labor contractor or engaging in the cabo system
cabo refers to a person or group of persons or to a labor group
which, under the guise of a labor organization, supplies workers to
an employer, with or without any monetary consideration whether in
the capacity of an agent of the employer or as an ostensible
independent contractor.
2. Entering into a collective bargaining agreement with terms and
conditions of employment below the minimum standards set by law;
3. Asking for or accepting attorney fees or negotiation fess from
employees; and
4. Checking off special assessments or other fees without individual
written check off authorization, EXCEPT for mandatory activities
under the Labor code; and
5. Violation of Article 241 of the Labor Code regarding rights and
conditions of membership in a labor organization.
Non-Compliance with Certain Requirements

The registration of a labor organization may also be cancelled for failure to


comply with the following requirements:
1. Failure to submit its constitution and by-laws or amendments
thereto, the minutes of ratification and the list of members who took
part in the ratification, within 30 days from adoption or ratification;
2. Failure to submit the list of newly elected/appointed officers and
their postal address, list of voters and minutes of the election of
officers, within thirty 30 days from election;
3. Failure to submit annual financial report within thirty (30) days after
the closing of every fiscal year
4. Failure to submit list of individual members once a year or
whenever required; or
5. Failure to comply with any of the requirements prescribed under
Articles 234 and 237 of the Labor Code.
Collateral attack is not allowed even in a petition for certification
election.
General Rule: Any party in interest can file a petition for cancellation
of registration of a labor organization.
Exception: If the ground for cancellation is based on a violation of
Article 241 of the Labor Code, only members of the labor
organization or workers association concerned can file the petition for
cancellation.
Venue
For Independent union, Chartered Local or Workers Association
RO-DOLE that issued certificate of registration or certificate of
creation of chartered local.
For Federations, National Unions, Industry Unions or Trade Unions
Centers BLR

Decisions rendered by the Secretary of Labor and Employment on


appeal are final and executory.
Decisions rendered by the BLR in the exercise of its appellate
jurisdiction are likewise final and executory, hence they are not
appealable.
Note: If the registration is cancelled during the pendency of a case, the
Labor Organization may still continue to be a party to the case without
need of substitution. However, this is subject to the understanding that
whatever decision may be rendered therein will only be binding upon
those union members who have not signified their desire to withdraw
from the case before its trial and decision on the merits.
ARTICLE 240 Equity of the Incumbent All existing federation and
national unions which meet the qualifications of a legitimate labor
organization and none of the grounds for cancellation shall continue
to maintain their existing affiliates regardless of the nature of the
industry and the location of the affiliates.

Article 240 of the Labor Code merely proclaims the right of a


federation or national union to maintain their existing affiliates
regardless of the nature of the industry and location of their affiliates. It
does not in any way prohibit the disaffiliation of a local union from a
federation or national union.

ARTICLE 241 Rights and Conditions of Membership in a labor organization


The following are the rights and conditions of membership in a
labor organization.

(a) No arbitrary or excessive initiation fees shall be required of the


members of a legitimate labor organization nor shall arbitrary,
excessive or oppressive fine and forfeiture be imposed;
(b)The members shall be entitled to full and detailed reports from
their officers and representatives of all financial transactions as
provided for in the constitution and by-laws of the organization;
(c)
Right of Union Members
1. Right to resign from the Union this right, may be restricted by a
closed shop agreement
2. Right to fair dealing fair dealing is equally demanded of unions as
well as of employers in their dealings with employees.
3. Right to Information all information relevant to union and labor
matters entrusted to it.
a. Union officers are duty bound to inform the members on the
provisions of the constitution and by-laws of the union, the CBA,
the prevailing labor relations system and all their rights and
obligations under existing laws;
b. Union members are entitled to full and detailed reports from their
officers and representatives of all financial transactions
c. The books of accounts and other records of the financial activities
of any labor organization shall be open to inspection by any officer
or member during officer hours.

4. Right to determine major union policies union members have the


right to determine by secret ballot, after due deliberation, any
question of major policy affecting the entire membership, UNLESS
the nature of the organization or force majeure renders such secret
balloting impractical, in which case, the board of directors of the
organization may make the decision in behalf of the general
membership.
5. Right to elect union officers including those of national union or
federation to which their union is affiliated.
6. Right to seek Investigation of Irregularities any union who
invokes his right cannot be considered to have committed
misconduct, negligence or disloyalty, and therefore it is unlawful to
expel such member from the union.

Conditions of Union Membership

1. Non-membership in Subversive Organization - any individual who


is engaged directly or indirectly in any subversive activity.
2. No Arbitrary or Excessive Initiation Fees 3. No Levy of Special Assessment without written resolution unless
authorized by a written resolution of a majority of all the members at
a general membership meeting duly called for the purpose

Requisite for a Valid Levy of Special Assessment


a. There must be a written resolution by the majority of all the union
members;
b. The written resolution must be passed in a general membership
meeting duly called for that purpose;
c. The minutes of the meeting, including the list of all members
present, the votes cast, and the purpose of the special assessment
should be recorded by the secretary of the labor organization; and
d. The record shall be attested to by the president of the labor
organization.
Strict compliance with the foregoing requirements is required.

4. No Check off without individual written authorization other than


for mandatory activities (Labor relations seminar and labor
education activities) under the Labor Code. The individual check-off
authorization should specifically state the amount, purpose and
beneficiary of the deduction.
The right of an incumbent collective bargaining agent to check-off
union dues and agency fees subsist during the pendency of a petition
for certification election or other intra-union or inter-union disputes
or other related labor relations disputes.

Withdrawal of check-off authorization need not be done separately or


individually.

The individual check-off authorization required by Article 241 of the


labor code does not apply to non-union members who may be
assessed agency fees for having accepted the benefits provided for in
the collective bargaining agreement.

Union Members Qualification

1. He must be an employee of the company where the union operates;


2. He must be a member in good standing in the subject labor
organization;
3. He has not been convicted of a crime involving moral turpitude or if
convicted, he has been granted absolute pardon;
Election of Union Officers

Remedy if officers do not call for election of new officers

Election Protest the five day period for filing a protest in a certification
election does not apply to a protest in an election of union officers.
Compensation of union officers the officers of any labor organization shall
not be paid any compensation other than salaries and expenses due to their
positions as specifically provided for in its constitution and by-laws, or in a
written resolution duly authorized by the majority of all the members in a
general meeting duly called for the purpose.

Expulsion/Impeachment of Union Officers


1. Violation of the rights and conditions of membership in labor
organization as set forth in Art. 241 of the Labor Code;
2. Commission of irregularities in the approval of the resolution
regarding compensation of union officers;
3. Membership in another labor organization;
4. Culpable violation of the constitution and by-laws of the union
The BLR has the power to expel or remove a union officer from office.
Article 241 of the Labor Code expressly provides that the Bureau shall
have the power to hear and decide any reported violation to mete the
appropriate penalty.

Union Funds

No officer, agent or member of a labor organization shall collect any fees,


dues, or other contribution in its behalf or make any disbursement of its
money or funds unless he is duly authorized under the constitution and by
laws.
Accounting of Union funds
The treasurer is obliged to render to the union and its members a true
and correct account of all money received and paid by him since he
assumed office or since the last date on which he
ARTICLE 242 Rights of Legitimate Labor Organization A legitimate labor
organization shall have the right:

1. To ACT as the representative of its members for the purpose of

collective bargaining;
2. To be CERTIFIED as the exclusive representative of all the

employees in an appropriate collective bargaining unit for


purposes of collective bargaining;
3. To be FURNISHED by the employer, upon written request, with its

audited financial statements, including the balance sheet and the


profit and loss statement within thirty (30) days from the date of
receipt of the request, after union has been duly recognized by the
employer or certified as the sole and exclusive bargaining
representative of the employees in the bargaining unit, or within
sixty (60) calendar days before the expiration of the existing
collective

bargaining

agreement,

or

during

the

collective

bargaining negotiation;
4. To own property, real or personal, for use and benefit of the labor

organization and its members;


5. To sue and be sued in its registered name; and
6. To undertake all other activities designed for the benefit of the

organization and its members, including cooperative, housing,


welfare and other projects not contrary to law.
Notwithstanding any provision of a general or special law to the
contrary, the income and the properties of legitimate labor
organizations, including grants, endowments, gifts, donations and
contributions as they may receive from fraternal and similar
organizations, local or foreign, which are actually, directly and
exclusively used for their unlawful purposes, shall be free from taxes,

duties and other assessments. The exemptions provided herein may


be withdrawn only by a special law expressly repealing this provision.

TITLE V
COVERAGE
ARTICLE 243 Coverage and Employees Rights to Self Organization All
persons employed in commercial, industrial, and agricultural
enterprises and in religious, charitable, medical or educational
institutions, whether operating for profit or not shall have the right to
self organization and to form, join, or assist labor organizations of
their own choosing for purposes of collective bargaining. Ambulant,
intermittent and itinerant workers, self employed people, rural
workers and those without any definite employers may form labor
organizations for their mutual aid and protection.
ARTICLE 244 Right of Employees in the Public Service Employees of
government corporations established under the corporation code shall
have the right to organize and to bargain collectively with their
respective employers. Al other employees in the civil service shall
have the right to form association for purposes not contrary to law.
ARTICLE 245 Ineligibility of Managerial Employees to join any Labor
Organization; Right of Supervisory Employees Managerial employees are
not eligible to join, assist or form any labor organization. Supervisory
employees shall not be eligible for membership in a labor
organization of rank and file employees, but may join, assist or form
separate labor organizations of their own.

MANAGERIAL EMPLOYEES is one who is vested with powers or


prerogatives to lay down and execute management policies and/or hire,
transfer, suspend, lay off, recall, discharge, assign or discipline
employees.
SUPERVISORY EMPLOYEES are those who, in the interest of the
employer, effectively recommend the laying down and execution of
management policies and/or hiring, transfer, suspension, layoff, recall,
discharge, assignment or discipline of employees.
RANK AND FILE all employees who are neither managerial nor
supervisory are rank and file.
CONFIDENTIAL EMPLOYEE are those who (a) assist or act in a
confidential capacity; (b) to persons who formulate, determine, and
effectuate management policies in the field of labor relations.
EMPLOYEES OF COOPERATIVES a cooperative is an organization
composed primarily of small producers and of consumers who voluntarily
join together to form business enterprises which they themselves own,
control, and patronize.
ARTICLE 246 Non-Abridgement of Right to Self Organization It shall be
unlawful for any person to restrain, coerce, discriminate against or unduly
interfere with employees and workers in the exercise of the right to selforganization. Such right shall include the right to form, join, or assist labor
organizations for purposes of collective bargaining through representatives
of their own choosing and to engage in lawful concerted activities for the
same purpose or for their mutual aid and protection, subject to Article 264
of this Code.

TITLE VI
UNFAIR LABOR PRACTICES
CHAPTER I
CONCEPT
ARTICLE 247 Concept of Unfair Labor Practice and Procedure for Prosecution
thereof Unfair labor practices violate the constitutional right of workers
and employees to self organization, are inimical to the legitimate interest
of both labor and management, including their right to bargain
collectively and otherwise deal with each other in an atmosphere of
freedom and mutual respect, disrupt industrial peace and hinder the
promotion of healthy and stable labor management relations.
Consequently unfair labor practices are not only violations of the
civil rights of both labor and management but are also criminal offense
against the State which shall be subject to prosecution and punishment
as herein provided.
Subject to the exercise by the President or by the Secretary of Labor
and Employment of the powers vested in them by Articles 263 and 264 of
this Code, the civil aspects of all cases involving unfair labor practices,
which may include claims for actual, moral, exemplary, and other forms
of damages, attorneys fees and other affirmative relief, shall be under the
jurisdiction of the Labor Arbiters. The Labor Arbiters shall give utmost
priority to the hearing and resolution of all cases involving unfair labor
practices. They shall resolve such cases within thirty (30) calendar days
from the time they are submitted for decision.
Recovery of civil liability in the administrative proceedings shall
bar recovery under the Civil Code.

No criminal prosecution under this Title may be instituted without


final judgment, finding that an unfair labor practice was committed,
having been first obtained in the preceding paragraph. During the
pendency of such administrative proceeding, the running of the period
of prescription of the criminal offense herein penalized shall be
considered uninterrupted; PROVIDED, however, that the final judgment
in the administrative proceeding shall not be binding in the criminal
case nor be considered as evidence of guilt but merely as proof of
compliance of the requirements therein set forth.

Unfair labor practices are acts that transgress the right of employees
to self organization. Consequently, it can be committed only against an
employee who exercises or has exercised his right to self organization. It
cannot be committed against an employee who is not connected with any
labor organization.
CHAPTER II
UNFAIR LABOR PRACTICES OF EMPLOYERS

ARTICLE 248 Unfair Labor Practices of Employers It shall be unlawful


for an employer to commit any of the following unfair labor practices:
(a) To INTERFERE with, restrain or coerce employees in the exercise of
their right to self organization;
(b)To REQUIRE as a condition of employment that a person or an
employee shall not join a labor organization or shall withdraw
from one to which he belongs;

(c) To CONTRACT OUT services or functions being performed by


union members when such will interfere with, restrain or coerce
employees in the exercise of their right to self organization;
(d)To INITIATE, DOMINATE, ASSIST or otherwise interfere with
the foundation or administration of any labor organization,
including the giving of financial or other support to it or its
organizers or supporters;
(e) To DISCRIMINATE in regard to wages, hours of work, and other
terms and conditions of employment in order to encourage or
discourage membership in any labor organization. Nothing in this
code or in any other law shall stop the parties from requiring
membership in a recognized collective bargaining agent as a
condition for employment EXCEPT those employees who are
already members of another union at the time of the signing of the
collective bargaining agreement. Employees of an appropriate
collective bargaining unit who are not members of the recognized
collective bargaining agent may be assessed a reasonable fee
equivalent to the dues and other fees paid by members of the
recognized collective bargaining agent, if such non-union members
accept the benefits under the collective agreement: PROVIDED that
the individual authorization required under Article 242, paragraph
(o) of this code shall NOT apply to the non-members of the
recognized collective bargaining agent;
(f) To DISMISS, DISCHARGE, or otherwise prejudice or discriminate
against an employee for having given or being about to give
testimony under this Code;

(g)To VIOLATE the DUTY to bargain collectively as prescribed by


this Code;
(h)To PAY negotiation or attorneys fees to the union or its officers or
agents as part of the settlement of any issue in collective bargaining
or any other dispute; or
(i) To VIOLATE a collective bargaining agreement.
The provision of the preceding paragraph notwithstanding, ONLY the
officers and agents of corporations, associations or partnerships who
have actually participated in, authorized or ratified unfair labor
practice shall be held criminally liable.

INTERFERENCE IN THE RIGHT TO SELF ORGANIZATION


The test of whether an employer has interfered with, restrained or coerced
employees in their right to self organization is whether the employer has
engaged in conduct which it may reasonably be said tends to hinder the
free exercise of the employees right to self organization.
TOTALITY OF CONDUCT DOCTRINE, the culpability of an employers
remarks are to be evaluated not only on the basis of their implicit
implications, but should be appraised against the background of and in
conjunction with collateral circumstances.
YELLOW DOG CONTRACT (D-R-W-Q)
A YELLOW DOG contract is an agreement which requires as a condition of
employment, that a person or employee:
(a) Declare that he is not a member of a labor organization;

(b)Refrain from joining a labor organization;


(c) Withdraw his membership in a labor organization;
(d)Quit his employment upon joining labor organization
A yellow dog contract is an unfair labor practice under Article 248 (b) of the
labor code, hence, it is null and void for being contrary to law and public
policy.
CONTRACTING OUT SERVICES OR FUNCTIONS PERFORMED BY
UNION MEMBERS
The mere act of contracting out services or functions performed by
union members does not per se constitute unfair labor practice. It becomes
unfair labor practice only when it interferes with, restrains or coerces
employees in the exercise of their right to self organization.
ORGANIZING,

ASSISTING

OR

SUPPORTING

LABOR

ORGANIZATION
It is unfair labor practice on the part of the employer to initiate,
dominate,

assist

or

otherwise

interfere

with

the

formation

or

administration of any labor organization, including the giving of financial


or other support to it or its organizers or supporters.
A labor organization, the formation or administration of which has
been initiated or assisted by the employer is called a company union or
company dominated union.
A complaint for unfair labor practice charging that one or more unions
participating in the certification election are being aided or controlled by
the employer, may be considered a pre judicial question in a certification
election proceeding. This means that the unfair labor practice case should

first be decided before conducting the certification election. The reason for
this is to prevent the selection of a company-dominated union.
DISESTABLISHMENT
Disestablishment is an order requiring an employer to withdraw its
recognition of a company dominated union as the employees collective
bargaining agent and a bona fide and sufficient communication to the
employees of such withdrawal of recognition.
DISMISSAL OR DISCRIMINATION BECAUSE OF TESTIMONY
It is unfair labor practice for an employer to dismiss, discharge, or
otherwise prejudice or discriminate against an employee for having given
or being about to give testimony under the Labor Code.
VIOLATION OF THE DUTY TO BARGAIN COLLECTIVELY
The duty to bargain collectively means the performance of a mutual
obligation to meet an convene promptly and expeditiously in good faith for
the purpose of negotiating an agreement with respect to wages, hours of
work and all other terms and conditions of employment including
proposals for adjusting any grievances or questions arising under such
agreement and executing a contract incorporating such agreement if
requested by either party, but such duty does not compel any party to make
any concession.
PAYING NEGOTIATIONS FEES OR ATTORNEYS FEES TO THE UNION
It is unfair labor practice on the part of an employer to pay
negotiation fees or attorneys fees to the union or its officers or agents as
part of the settlement of any issue in collective bargaining or any other
dispute.

VIOLATION OF COLLECTIVE BARGAINING AGREEMENT


To constitute unfair labor practice, the violation of the collective
bargaining agreement must be gross in character. A simple violation of the
collective bargaining agreement does not constitute unfair labor practice
it is considered as an ordinary grievance to be resolved under the grievance
machinery provided for in the collective bargaining agreement.
Gross violation of a collective bargaining agreement means a flagrant
and/or malicious refusal to comply with the economic provisions of the
collective bargaining agreement.
DISCRIMINATION
There is discrimination when one is denied privileges given to the
other under identical or similar conditions. Thus there can be no
discrimination where the employees concerned are not similarly situated.
Discrimination per se is not unfair labor practices. It becomes unfair
labor practice only when it is intended to encourage or discourage
membership in any labor organization.
UNION SECURITY AGREEMENT
The legal basis for entering into a union security arrangement is
Article 248 (e) of the Labor Code which provides that: nothing in this code
or in any other law shall stop the parties from requiring membership in a
recognized collective bargaining agent as a condition for employment,
EXCEPT those employees who are already members of another union at the
time of the signing of the collective bargaining agreement.
TYPES OF UNION SECURITY AGREEMENTS

(a) CLOSED SHOP closed shop is an arrangement whereby the


employer binds himself to hire only members of the contracting
union who must continue to remain members in good standing to
keep their jobs.
(b)UNION SHOP union shop is an arrangement whereby an employer
is allowed to hire non-members of the contracting union on condition
that they should join the contracting union within a specified period
of time and must continue to remain members in good standing to
keep their jobs.
(c) MAINTENANCE OF MEMBERSHIP maintenance of membership
is an arrangement which requires those who are members of the
contracting union at the time of the execution of the collective
bargaining agreement to maintain their membership in good
standing during the lifetime of the collective bargaining agreement as
a condition of continued employment.
(d)AGENCY SHOP agency shop is an arrangement which does not
require union membership but only support from the employees
within the bargaining unit in the form of agency fees, as a condition
of continued employment.
(e) PREFERENTIAL HIRING preferential hiring is an arrangement
whereby the members of the contracting union are given preference
in engagement, all circumstances being equal, and for them to
maintain their membership in good standing during the lifetime of
the collective bargaining agreement as a condition of continued
employment.
LIMITATIONS

A closed shop agreement cannot be enforced against:


(1) Employees who are already members of another union at the time
of the signing of the collective bargaining agreement;
(2) Employees whom the union refused admission to membership
without any reasonable ground therefor; and
(3) Employees who are members of religious sects which prohibit
their members from joining a labor organization.
AGENCY SHOP
Agency shop applies only to non-union members who belong to the
collective bargaining unit. It can be enforced only if and when the nonunion member covered by the bargaining unit accepts the benefits under
the collective bargaining agreement. Individual check-off authorization is
not required to check-off agency fees.
CHAPTER III
UNFAIR LABOR PRACTICES OF LABOR ORGANIZATIONS
ARTICLE 249 Unfair Labor practices of labor organizations It shall be
unfair labor practice for a labor organization, its officers, agents or
representatives.
(a) To restrain or coerce employees in the exercise of their rights to self
organization. However, a labor organization shall have the right to
prescribe its own rules with respect to the acquisition or retention
of membership.
(b)To cause or attempt to cause an employer to discriminate against an
employee, including discrimination against an employee with

respect to whom membership in such organization has been denied


or to terminate an employee on any ground other than the usual
terms and conditions under which membership is made available
to other members;
(c) To violate the duty, or refuse to bargain collectively with the
employer, provided it is the representative of the employees;
(d)To cause or attempt to cause an employer to pay or deliver or agree
to pay or deliver any money or other things of value, in the nature
of exaction for services which are not performed, including the
demand for fee for union negotiations;
(e) To ask for or accept negotiation or attorneys fees from employers
as part of the settlement of any issue in collective bargaining or any
other dispute; or
(f) To violate a collective bargaining agreement.
The provision of the preceding paragraph notwithstanding, ONLY
THE OFFICERS, members of governing boards, representatives or
agents or members of labor organizations who have actually
participated in, authorized or ratified unfair labor practices shall be
held criminally liable.

COERCION/RESTRAINT ON THE RIGHT TO SELF ORGANIZATION


It is unfair labor practice for a labor organization, its officers, agents
or representatives to restrain or coerce employees in the exercise of their
rights to self-organization.

CAUSING

AN

EMPLOYER

TO

DISCRIMINATE

AGAINST

AN

EMPLOYEE
It is unfair labor practice for a labor organization, its officers, agents
or representatives to:
1. Cause or attempt to cause an employer to discriminate against an
employee;
2. Discriminate against an employee with respect to whom membership
in such organization has been denied; or
3. Terminate an employee on any ground other than the usual terms
and conditions under which membership is made available to other
members.
VIOLATION TO BARGAIN COLLECTIVELY
It is unfair labor practice on the part of a labor organization, its
officers, agents or representatives to violate the duty to bargain collectively
or refuse to bargain collectively with the employer, provided it is the
representative of the employees.
FEATHERBEDDING
Featherbedding is the act of causing or attempting to cause an
employer to pay or deliver any money or other things of value for services
which were not performed or not to be performed.
DEMANDING/ACCEPTING NEGOTIATION FEES
It is unfair labor practice for a labor organization, its officers, agents
or representatives to ask for or accept negotiation or attorneys fees from

employers as part of the settlement of any issue in collective bargaining or


any other dispute.
VIOLATION OF COLLECTIVE BARGAINING AGREEMENT
It is unfair labor practice for a labor organization, its officers, agents,
or representatives to violate a collective bargaining agreement.
To constitute unfair labor practice, the breach of collective bargaining
agreement must be gross in character.

COLLECTIVE

BARGAINING

AND

ADMINISTRATION

OF

AGREEMENTS
ARTICLE 250
Collective bargaining is one of the democratic frameworks under the
labor code designed to stabilize the relation between labor and
management and to create a climate of sound and stable industrial peace.
It is a mutual responsibility of the employer and the union and is
characterized as a legal obligation.
It is simply a process of finding a reasonable solution to a conflict and
harmonizing opposite positions into a fair and reasonable compromise.
Collective bargaining process

The collective bargaining process technically starts when the


employees within an appropriate bargaining unit organize themselves into
a labor organization.
After obtaining registration with the DOLE, the labor organization
either request the employer for voluntary recognition or files a petition for
certification election.
Then the labor organization serves its written proposals to the
employer, after which the employer submits its written counter proposals
within ten (10) days from receipt of the proposals.
Collective bargaining negotiations then follow.
Jurisdictional Preconditions of Collective Bargaining
1. Proof of majority representation on the part of the labor organization;
2. Voluntary recognition by the employer or certification of the labor
organization as the collective bargaining representative of the
employees covered by the bargaining unit;
3. Demand to bargain under article 250 (a) of the labor code.
Multi-Employer Bargaining
Legitimate labor organizations and employers may agree in writing
to come together for collective bargaining purposes under the following
conditions:
1. The legitimate labor organizations must be incumbent exclusive
bargaining agents.
2. The employers must have counterpart legitimate labor organizations
who are incumbent bargaining agents;

3. The legitimate labor organizations of employer units must consent to


multi-employer bargaining.
Each employer or concerned labor organization shall express in writing
its willingness or unwillingness to participate in multi-employer
bargaining, addressed to its exclusive bargaining agent or employer.
Negotiations may commence only with regard to employers and labor
organizations that consent to participate in multi-employer bargaining.
Pre-requisites of Multi-Employer Bargaining
Legitimate labor organizations who desire to collectively negotiate with
employers shall execute among themselves a written agreement containing
the following:
1. Names of the labor unions who desire to avail of multi-employer
bargaining
2. Names of each labor union in the employer unit;
3. Statement that each of the labor unions are the incumbent exclusive
bargaining agents of the their respective employer units;
4. Duration of the collective bargaining agreements, if any, between
each labor organization and their respective employers.
Procedure
Legitimate labor unions who desire to bargain with multi employers shall
send a written notice to each employer concerned. The written notice shall
be accompanied by any of the following documents:
1. Written agreement among the labor organizations as regards their
desire for multi-employer bargaining; or

2. Certificates of registration of the federation, national union or


industry union;
Employers who desire to engage in multi-employer bargaining shall send to
each of their counterpart legitimate labor unions a written notice indicating
the following:
1. Names of employers who desire to avail of multi employer
bargaining;
2. Their corresponding legitimate labor organizations;
3. Statement that each corresponding legitimate labor organization is an
exclusive bargaining agent
4. The duration of the current collective bargaining agreement, if any, of
each employer with the counterpart legitimate labor organization.
REMEDIES IN CASE OF DEADLOCK
If the collective bargaining negotiations result in a deadlock, the parties can
do any of the following course of action:
a. Call upon the National Conciliation and Mediation Board to assist them
in arriving at an amicable settlement;
b. Submit the matter for compulsory arbitration by filing a complaint with
the National Labor Relations Commissions.
c. Submit the matter for resolution by a voluntary arbitrator;
d. Declare a strike or lockout.

DEADLOCK is the situation between the labor and management of the


company where there is failure in the collective bargaining negotiations
resulting in stalemate.

ESSENTIAL ELEMENTS OF THE DUTY TO BARGAIN COLLECTIVELY


The duty to bargain collectively arises only when the union which
seeks to represent the collective bargaining unit is:
(a) A legitimate labor organization
(b) Composed on employees of the supposed employer; and
(c) Chosen or designated by the majority of the employees with the
bargaining unit as their collective bargaining representative.
The duty to bargain collectively means the performance of a mutual
obligation to meet and convene promptly and expeditiously in good faith
for the purpose of negotiating an agreement with respect to wages, hours
of work and all other terms and conditions of employment including
proposals for adjusting any grievances or questions arising under such
agreements and executing a contract incorporating such agreements if
requested by either party but such duty does not compel any party to agree
to a proposal or to make any concession (Article 252, LC)
- All that is required is for the parties to approach the negotiations
with an open mind and exert reasonable effort to reach a common
ground of agreement
- There must be common willingness to discuss freely and fully their
respective claims and demands and when these are opposed, to
justify them on reasons.

- The duty to bargain collectively commands labor and management to


conduct their negotiations with utmost good faith.
After the execution of the collective bargaining agreement, the duty to
bargain collectively obliges the parties:
(a) Not to terminate or modify the collective bargaining agreement during
its lifetime;
(b) To ask for modification of the collective bargaining agreement only
during the 60-day period prior to its expiration date; and
(c) To observe the terms and conditions of the collective bargaining
agreement during the 60-day period and until a new agreement is reached.
FREEDOM PERIOD is the sixty (60) day period prior to the expiration of
the collective bargaining agreement.
HOLD OVER PRINCIPLE
In the absence of a new collective bargaining agreement, the parties must
maintain the status quo and must continue in full force and effect the terms
and conditions of the existing agreement until a new agreement is reached.
CBA is a contract by and between an employer and the collective
bargaining representative of the employees within an appropriate
bargaining unit, concerning wages, hours of work, and all other terms and
conditions of employment. It is the law of the plant.
The primary purpose of a collective bargaining agreement is the
stabilization of labor management relations in order to create and eliminate
of a sound and stable industrial peace.
Term of a collective bargaining agreement

The term of a collective bargaining agreement, insofar as the


representation aspect is concerned, is five (5) years reckoned from the date
of its effectivity.
EFFECTIVITY OF THE RENEGOTIATED AGREEMENT
The effectivity of the renegotiated collective bargaining agreement
will depend upon the following situations:
(a) If the parties are able to come to an agreement within six (6) months
from expiry of the third year of the collective bargaining agreement, the
effectivity of the renegotiated agreement shall retroact to the day
immediately following the expiry of the third year;
(b) If the agreement was arrived at after six (6) months of negotiations, the
parties not anybody else are given the discretion to fix the effectivity
thereof;
(c) If six (6) months have elapsed and the negotiations result in a deadlock,
and to resolve the impasse, the matter is submitted for arbitration, the
effectivity of the renegotiated collective bargaining agreement shall be
the date when the arbitrator renders his final decision.
RATIFICATION OF COLLECTIVE BARGAINING AGREEMENT
Inasmuch as a collective bargaining agreement is entered into
through the bargaining agent, it is necessary for the employees (the
principal) to ratify the same. The collective bargaining agreement will be
deemed ratified if it is approved by the majority of the employees covered
by the bargaining unit. Without ratification the collective bargaining
agreement cann be registered.

No temporary or permanent injunction or restraining order in any case


involving or growing out of labor disputes shall be issued by any court
or other entity, EXCEPT as otherwise provided in Article 218 and 264 of
this code. (Article 254)
WHEN INJUNCTION IN LABOR DISPUTES MAY ISSUE
Injunction in cases involving or growing out of labor disputes may be
issued only under the following circumstances:
(a) In case of actual or threatened commission of any prohibited or
unlawful acts, or when necessary to require the performance of a particular
act, which if not restrained or performed forthwith, may cause grave or
irreparable damage to any party or render ineffectual any decision in favor
of such party. Injunction in this case may issued only by the National
Labor Relation Commission.
(b) In case of a labor dispute causing or likely to cause a strike or lockout in
an industry indispensable to the national interest. Injunction in this case
may issued only by Secretary of Labor of Employment.
Ordinary Courts cannot issue injunction in cases involving or growing out
of a labor dispute.
ARTICLE 255. Exclusive Bargaining Representation and Workers Participation
in Policy Decision Making. The Labor organization designated or selected
by the majority of the employees in an appropriate collective bargaining
unit shall be the exclusive representative of the employees in such unit
for the purpose of collective bargaining. However, an individual
employee or group of employees shall have the right at any time to
present grievances to their employees.

Any provision of law to the contrary notwithstanding, workers


shall have the right, subject to such rules and regulations as the
Secretary of Labor and Employment may promulgate, to participate in
policy and decision-making processes of the establishment where they
are employed insofar as said processes will directly affect their rights,
benefits and welfare. For this purpose, workers and employers may from
labor-management councils; Provided, That, the representatives of the
workers in such labor-management councils shall be elected by at least
the majority of all employees in said establishment.
Right of employees to participate in policy decision-making
The right of employees to participate in policy and decision making
processes extends only to matters that directly affect their rights, benefits
and welfare.
The right can be exercised through a labor management council to be
formed jointly by the employer and the employees.
Collective Bargaining Unit refers to a group of employees sharing
mutual interest within a given employer unit, comprised of all or less than
all of the entire body of employees in the employer unit or any specific
occupational or geographical grouping within such employer unit.
Appropriate Collective Bargaining Unit defined as a group of employees
of a given employer, comprised of all or less than all of the entire body of
employees, which the collective interest of all the employees, consistent
with equity to the employer, indicate to be the best suited to serve the
reciprocal rights and duties of the parties under the collective bargaining
provision of law.

A bargaining unit to be considered appropriate must effect a grouping of


employees who have substantial, mutual interest in wages, hours of
work, working conditions and other subjects of collective bargaining.
According to Rothenberg, the fundamental factors that should be
considered in fixing the appropriate collective bargaining unit are:
(a) Will of the employees;
(b) Affinity and unity of employees interest, such as substantial similarity
of work and duties, or similarity of compensation and working conditions;
(c) Prior collective bargaining history; and
(d) Similarity of employment status.
Globe Doctrine
The express will or desire of the employees may be considered in
determining collective bargaining unit.
Community of Interest Rule
Under the community of interest rule, the proper bargaining unit may be
fixed on the basis of the affinity and unity of the employees interest, such
as substantial similarity of work and duties or similarity of compensation
and working conditions.
Prior Collective Bargaining History
Prior collective bargaining history is also a factor that may be
considered in fixing the bargaining unit, but it is not a decisive factor.
Similarity of Employment Status
An important factor to consider in fixing the appropriate bargaining
unit is the employment status of the employees to be affected by the
collective bargaining agency. This rule requires that temporary, seasonal, or
probationary employees be grouped as one category and be treated
separately from permanent employees.

The One Company-One Union Policy


The Labor Code discourages the proliferation of unions in an
establishment. The general policy is one company-one union, unless
circumstances otherwise require. This policy is anchored on the greater
mutual benefits which the parties could derive, especially in the case of
employees whose bargaining strength could undeniably be enhanced by
their unity and solidarity but diminished by their disunity, division, and
dissension.
An important factor to consider in fixing the appropriate bargaining unit is
the employment status of the employees to be affected by the collective
bargaining agency. This rule requires that temporary, seasonal, or
probationary employees be grouped as one category and be treated
separately from permanent employees.
The one company-one union policy, however, yields to certain exceptions,
to wit;
(a) When supervisory employees organize themselves into a bargaining
unit separate and distinct from the bargaining unit of rank and file
employees. (In relation to Article 245);
(b) Where the employer unit has to give way to other bargaining units, like
the craft unit, plant unit, or subdivision thereof. (Ex. Teaching and nonteaching)
(c) When a certain class of employees are excluded from the coverage of the
bargaining unit. This is also a compelling reason for said employees to form
a separate bargaining unit so as not to unduly deprive them of the right to
collective bargaining. (Ex. Monthly paid from daily paid)

SEPARATE BARGAINING UNITS FOR EVERY CORPORATION


Two corporations cannot be treated as a single bargaining unit even if
their businesses are related. The reason is because the two (2) companies
are distinct entities with separate juridical personalities.
The collective Bargaining Agent
The collective bargaining agent may be determined through the
following modes:
(a) Voluntary recognition;
(b) Certification Election; and
(c) Run-off election.
Voluntary Recognition is the process by which a legitimate labor
organization is acknowledged by the employer as the exclusive collective
bargaining agent in a bargaining unit.
Voluntary Recognition is proper only in unorganized establishments with
only one legitimate labor organization operating within the bargaining
unit.
In case of voluntary recognition, it is required of the employer and the
union to submit, within thirty (30) days from recognition, a NOTICE OF
VOLUNTARY RECOGNITION to the Regional Office of the DOLE which
issued the unions certificate of registration or certificate of creation of a
chartered local.
The notice of voluntary recognition shall be accompanied by the
following documents:
(a) Joint statement under oath attesting to the fact of voluntary recognition;

(b) Certificate of posting of the joint statement of voluntary recognition for


fifteen (15) consecutive days in two conspicuous places of the establishment
or bargaining unit where the union seeks to operate;
(c) Statement on the approximate number of employees in the bargaining
unit, accompanied by the names of those who support the voluntary
recognition comprising at least a majority of the members of the bargaining
unit; and
(d) Statement that the labor union is the only legitimate labor organization
operating within the bargaining unit.
The aforementioned supporting documents shall be certified under
oath by the employer and president of the recognized union.
Recording of Voluntary Recognition
The fact of voluntary recognition shall be recorded in the roster of
legitimate labor unions by the labor relations division of the regional office
of the DOLE.
From the time of recording of voluntary recognition, the recognized labor
union shall enjoy the rights, privileges and obligations of an existing
bargaining agent.
Entry of voluntary recognition shall bar the filing of a petition for
certification election by any labor organization for a period of one (1) year
from the date of entry of voluntary recognition.
Upon expiration of the one year period, any legitimate labor organization
may file a petition for certification election in the same bargaining unit,
UNLESS a collective bargaining agreement between the employer and the
voluntarily recognized union was executed and registered with the DOLE.

Certification Election is the process of determining through secret ballot


the sole and exclusive collective bargaining representative of the employees
in an appropriate bargaining unit.
It can be done through an ORDER from the DOLE; or
By agreement of the parties (consent election)
Run Off Election If none of the contenders in a certification election (with
at least three (3) choices) obtains a majority of the valid votes cast, the labor
unions receiving the two (2) highest number of votes shall be subjected to
an election to determine which of them should be the collective bargaining
representative.
A run-off election can only be conducted under the following conditions:
(a) The certification election should have at least three (3) choices;
(b) None of the choices obtained a majority of the valid votes cast;
(c) The total number of votes for all contending unions is at least fifty
percent (50%) of the number of votes cast.
(d) There are no challenged ballots, which can materially alter the results.
Only the two (2) labor unions receiving the highest number of votes can
participate in a run-off election.
No Union shall not be a choice in a run-off election.
The Labor Union that garners the majority of the valid votes casts shall be
the exclusive collective bargaining agent of the employees covered by the
bargaining unit.
Substitutionary Doctrine employees cannot revoke a validly executed
collective bargaining agreement by the simple expedient of changing their
bargaining agent. The bargaining agent is obliged to respect the collective

bargaining agreement, although it could negotiate for the shortening of the


life of the said agreement.
ARTICLE 256. Representation Issue in Organized Establishments. In
organized establishments, when a verified petition questioning the
majority status of the incumbent bargaining agent is filed by any
legitimate labor organization including a national union or federation
which has already issued a charter certificate to its local chapter
participating in the certification election or a local chapter which has
been issued a charter certificate by the national union or federation
before the Department of Labor and Employment within sixty (60)-day
period before the expiration of the collective bargaining agreement, the
Med-Arbiter shall automatically orders an election by secret ballot when
the verified petition is supported by the written consent of at least
twenty five percent (25%) of all the employees in the bargaining unit to
ascertain the will of the employees in the appropriate bargaining unit. To
have a valid election, at least a majority of all eligible voters in the unit
must have cast their votes. The labor union receiving the majority of the
valid votes cast shall be certified as the exclusive bargaining agent of all
the workers in the unit. When an election which provides for three or
more choices results in no choice receiving a majority of the valid votes
cast, a run-off election shall be conducted between the labor unions
receiving the two highest number of votes: Provided, That the total
number of votes for all contending union is at least fifty percent (50%) of
the number of votes cast. In cases where the petition was filed by a
national union or federation, it shall not be required to disclose the
names of the local chapters officers and members.
At the expiration of the freedom period, the employer shall
continue to recognize the majority status of the incumbent bargaining
agent where no petition for certification election is filed.

The purpose of the certification election is to ascertain the wishes of the


majority of the employees in the bargaining unit on whether to be
represented by a labor organization and which labor organization.
Nature of Certification Proceedings
A certification proceeding is not a litigation in the sense the term is
commonly understood, where the conventional rules of evidence (such as
those on proper certification of exhibits) are strictly observed. It is an
investigation of non-adversary, fact finding character in which the MedArbiter plays the part of a disinterested investigator seeking merely to
ascertain the desires of employees as to the matter of their representation,
especially so where the petition for certification election and the claim of
majority representation are uncontested.
Venue of Certification Proceedings
A petition for certification election shall be filed with the RO-DOLE which
issued the petitioning unions certificate of registration or certificate of
creation of chartered local.
Who May file a petition for Certification Election
As a general rule, only legitimate labor organization can file a petition for
certification election.
EXCEPTION the employer can file a petition for certification election
when it is requested by a legitimate labor organization to bargain
collectively.
The Proper time for Filing a Petition for Certification Election
In the absence of CBA, or if the CBA has not been duly registered in
accordance with article 231 of the Labor Code, a petition for certification
election may be filed at ANY TIME.
If there is a duly registered CBA, a petition for certification election can be
filed only during the freedom period, i.e., within sixty (60) days prior to
the expiry date of such agreement.

The petition for certification election shall be in writing and verified by the
president of the petitioning union. It shall contain the following allegation
(a) Name and address of the petitioner and its affiliation, if appropriate,
the date and number of its registration and number of its certificate of
registration. If the petition is filed by a federation or national union,
the date and number of the certificate of registration or certificate of
creation of chartered local;
(b)Name, address, and nature of the employers business;
(c) Description of the bargaining unit;
(d)Appropriate number of employees in the bargaining unit;
(e) Names and address of other legitimate unions in the bargaining unit;
(f) Statement indicating any of the following circumstances:
(i)
That the bargaining unit is unorganized or that there is no
registered collective bargaining agreement covering the
employees in the bargaining unit;
(ii) If there exist a duly registered collective bargaining agreement,
that the petition is filed within the sixty-day freedom period of
such agreement;
(iii) If another union has been previously recognized voluntarily or
certified in a valid certification election, consent election, run off
election, that the petition is filed outside the one year period
from entry of voluntary recognition or conduct of certification
election, consent election, run off election and that no appeal is
pending thereon.
(g)Signatures of at least twenty five percent (25%) of all employees in an
appropriate bargaining unit, if the establishment is organized; and
(h)Other relevant facts.
The absence of an express allegation that the members constitute a proper
bargaining unit is not fatal in a certification proceeding because a

certification proceedings is not a litigation but a mere investigation


which is non-adversarial and fact finding in character.
Intervention Labor union with substantial interest in the certification
election have the right to intervene and take part in the certification
proceedings. It is done by filing a motion for intervention with the Medarbiter assigned to the case.
- In an organized establishment, the motion should be filed during the
freedom period.
- In unorganized establishments, the motion may be filed at any time
prior to the decision of the Med-Arbiter;
- The form need not be supported by the written consent of 25% of the
employees within the bargaining unit. (the required 25% consent
applies only to petitions for certification election and NOT to
motions for intervention)
BY STANDER PRINCIPLE
In certification proceeding, the employer is a mere by stander because the
proceeding is the sole concern of workers. As much as possible, therefore,
the employer should strictly maintain a hands-off policy in a certification
proceeding.
EXCEPTIONS
(a) When the employer files a petition for certification election pursuant to
Article 258 of the Labor code because it was requested to bargain
collectively.
(b) When the employer invokes certain valid defenses, in which case, it
becomes imperative to let the employer participate in the proceedings in
order that his interest could be protected.
EMPLOYERS DEFENSES (E-L-25%-I-C-V-E-N-D)
An employer can oppose or seek the dismissal of a petition for certification
election by invoking the following grounds:
(1) LACK OF EMPLOYER-EMPLOYEE RELATIONSHIP

The fundamental and essential condition is that the bargaining unit


should be composed of employees. The duty to bargain collectively arises
only between and employer and its employees.
(2) LACK OF LEGAL PERSONALITY ON THE PART OF THE
PETITIONING UNION;
A labor union lacks legal personality:
(a) If it is not registered with the DOLE; or
- However, during the pendency of its application for registration, a labor
organization may be allowed to file a petition for certification election,
especially if there is no defect in its application.
(b) If its registration has been cancelled by virtue of a final judgment.
- The registration of which has been cancelled by virtue of a final
judgment, loses its legal personality, hence, it cannot file a petition for
certification election.
- However, the mere pendency of the cancellation proceedings does not
disqualify a labor organization from filing a petition for certification
election.
(3) LACK OF 25% WRITTEN CONSENT;
- A petition for certification election in an organized establishment should
be supported by the written consent of at least twenty (25%) percent of all
the employees in the bargaining unit. The purpose of this is to show that
the petitioning union represents a group of employees of the company who
have substantial interest in the election.
If the petition for certification election is supported by the written
consent of 25% of the employees within the bargaining unit, it is
MANDATORY on the part of the Med-Arbiter to order a certification
election. (Article 256)
Failure to submit the twenty five percent (25%) written consent is a
ground for dismissal of the petition for certification election. A prima facie
showing of compliance will suffice.

However, if the written consent falls short of the 25% statutory


requirement, it is no longer mandatory, but DISCRETIONARY on the part
of the Med-Arbiter to call a certification election, which means that the
Med-Arbiter may or may not order a certification election.
IF the withdrawal or retraction of consent was made BEFORE (are
presumed voluntary) the filing of the petition for certification election, the
Med-Arbiter MAY NOT order the holding of a certification election.
IF the withdrawal or retraction of consent was made AFTER the
filing of the petition for certification election, the Med-Arbiter can still
order the holding of a certification election.
The reason for the distinction is that if the withdrawal or retraction is
made before the filing of the petition, the names of employees supporting
the petition are supposed to be held secret to the opposite party.
Logically, any such withdrawal or retraction shows voluntariness, in the
absence of proof to the contrary. Moreover, it becomes apparent that such
employees had not given their consent to the filing of the petition, hence,
the subscription requirement has not been met.
When the withdrawal or retraction is made after the petition is filed,
the employees who are supporting the petition become known to the
opposite party since their names are attached to the petition at the time of
filing. Therefore, it would not be unexpected that the opposite party would
use foul means for the subject employees to withdraw their support.

(4) INAPPROPRIATE BARGAINING UNIT;


- A bargaining unit is not an appropriate bargaining unit:
(a) If it fragments the employer unit;
(b) If the composition thereof is a mixture of rank and file and supervisory
employees, or a mixture of supervisory and managerial employees;
(c) If it is composed of managerial employees;
(d) If it is composed of members of the cooperative.

If the bargaining unit sought to be represented by the petitioning


union is NOT an appropriate bargaining unit, the employer can move for
the dismissal of the petition for certification election.
(5) CONTRACT-BAR RULE;
No certification election shall be conducted outside of the sixty-day period
immediately before the expiry of the five-year term of the collective
bargaining agreement.
Considering that the employer is a party to the collective bargaining
agreement it has the right to oppose a petition for certification election
invoking the obstacle imposed by the contract-bar principle in order to
protect the sanctity of the collective bargaining agreement.
(6) VOLUNTARY RECOGNITION BAR RULE;
- Voluntary recognition duly entered in the roster of legitimate labor
organization shall bar the filing of a petition for certification election for a
period of one (1) year from the date of entry of voluntary recognition. An
employer, therefore, can ask for the dismissal of a petition for certification
election filed within one (1) year from entry of voluntary recognition.
- Upon expiration of the one year period, any legitimate labor organization
may file a petition for certification election in the same bargaining unit
represented by the voluntarily recognized union, unless a collective
bargaining agreement between the employer and the voluntarily
recognized labor union has been executed and registered.
(7) ELECTION BAR RULE
- No PETITION for certification election may be filed within one (1) year
from the date of a valid certification election, consent election, or run-off
election. In case of appeal, the running of the one year period is suspended
until the decision on the appeal has become final and executory.
- The election-year bar rule will apply only when there is actual conduct of
election.

(8) NEGOTIATION BAR RULE; AND


- No representation question may be entertained if, within the one year
period from the date of entry of voluntary recognition, certification
election, or run-off election, the duly recognized or certified union has
commenced negotiations with the employer in accordance with Article 250
of the Labor code.
(9) DEADLOCK BAR RULE
- No representation question may be entertained if, before the filing of a
petition for certification election, a bargaining deadlock to which an
incumbent or certified bargaining agent is a party, had been submitted to
conciliation or arbitration or had become the subject of a valid notice of
strike or lockout.
- The principal purpose of this is to ensure stability in the relationship of
the workers and the management.
The following question cannot be raised in a motion to dismiss the
petition for certification election:
1. Validity of the registration of the collective bargaining agreement; or
2. Validity of the unions registration.
The remedy is to file an independent petition for cancellation of
registration with the RD-DOLE. Pending resolution of the petition for
cancellation of registration the proper party can ask for the suspension of
the certification election proceedings.
Generally, a complaint for unfair labor practice filed against the union will
not affect the holding of a certification election. HOWEVER, a complaint
for unfair labor practice charging a labor organization to be companydominated (pre judicial question in a petition for certification election
and when the court finds that said union is employer dominated, the union

would be decertified and the whole certification proceedings would be


rendered useless and nugatory.) will bar a certification election.
The reason is because if there is a union dominated by the company to
which some of the workers belong, an election among the workers and the
employees of the company would not reflect the true sentiment and
wishes of the said workers and employees from the standpoint of their
welfare and interest, because as to the members of the company
dominated union, the vote of the said members would not be free.
Qualified Voters
1. All employees covered by the appropriate bargaining unit at the time
of the issuance of the order granting the holding of a certification
election are eligible to vote.
2. Probationary employees are eligible to vote as long as they are
covered by the collective bargaining unit. It also has substantial
interest in the selection of the bargaining representative.
3. Strikers are eligible to vote in a certification election because they
continue to enjoy employee status during the strike, UNLESS in the
meantime, they are declared to have lost their employee status.
4. An employee who has been dismissed from work but has contested
the legality of dismissal in a forum of appropriate jurisdiction at the
time of the issuance of the order for the conduct of a certification
election shall be considered a qualified voter, UNLESS his dismissal
was declared valid in a final judgment at the time of the holding of
the certification election.
No law, administrative rule or precedent prescribes forfeiture of the
right to vote by reason of neglect to exercise the right in the past
certification elections.
Segregation of Votes

In case of disagreement over the voters list or over the eligibility of


voters, all contested voters shall be allowed to vote. HOWEVER, their
ballots shall be segregated and sealed in individual envelopes.
Notice of Election
The Election officer shall cause the posting of notice of election at
least ten (10) days before the actual date of the election in two most
conspicuous places in the company premises. It shall contain
a. The date and time of the election;
b. The names of all the contending unions;
c. The description of the bargaining unit and list of eligible and
challenged voters
The posting of notice of election, the information required to be
included therein and the duration of posting CANNOT be waived by
the contending unions or the employer.
The authorized representative of any of the contending unions and
the employer may challenge a vote before the ballot is deposited in the
ballot box, on the ground that the voter:
1. Is not an employee of the company; or
2. Is not a member of the appropriate bargaining unit which petitioner
seeks to represent;
The envelopes shall be opened and the question of eligibility shall be
passed only if the number of segregated voters will materially alter
the results of the election.
Election Protest
Any party in interest may file a protest based on the conduct or mechanics
of the election. Such protest shall be recorded in the minutes of the
proceedings. Protest not so raised are deemed waived

The protesting party must formalize its protest with the Med-arbiter,
with specific grounds, arguments and evidence therefor, within five (5)
days after the close of the election proceedings. If the protest is not
recorded in the minutes of the proceedings or if not formalized within the
prescribed period, the protest shall be deemed dropped.
A certification election may be declared invalid if certain
irregularities were committed during the election. But a mere general
allegation of duress is not sufficient to invalidate a certification election.
There is failure of election when less than a majority of all eligible
voters have cast their votes.
Failure of election shall not bar the filing of a motion for the
immediate holding of another certification/consent election within six (6)
months from the declaration of failure of election.
PROCLAMATION
The Med-Arbiter shall proclaim the union which obtained the
majority of the valid votes cast of the following conditions are met:
1. NO PROTEST has been filed, or if one was filed, the same was not
perfected within the five (5) day period for perfection of the protest;
2. NO CHALLEGE OR ELIGIBILITY issue was raised, or if one was
raised, the resolution of the same will not materially change the
result.
In a certification election, the authority of the Med-Arbiter or election
officer is LIMITED to certifying the winner as the sole and exclusive
bargaining agent.
DIRECT CERTIFICATION is no longer allowed as a method of
selecting the exclusive bargaining agent. (By virtue of E.O. No. 111)
direct certification has been discontinued.

ARTICLE 257. Petition in Unorganized Establishments. In any


establishment where there is no certified bargaining agent, a
certification election shall automatically be conducted by the Med
Arbiter upon the filing of a petition by any legitimate labor
organization, including national union or federation which has
already issued a charter certificate to its local/chapter participating in
the certification election or a local/chapter which has been issued a
charter certificate by the national union or federation. In cases where
the petition was filed by a national union or federation, it shall not be
required to disclose the names of the local chapters officers and
members.

UNORGANIZED ESTABLISHMENT
An unorganized establishment is a firm or company where there is
NO certified or recognized collective bargaining agent for a particular
bargaining unit.
A company where there is a certified bargaining agent for the rankand-file but none for the supervisors would still be considered as
unorganized establishment with respect to the supervisory
employees.
In an unorganized establishment, the mere filing of a petition for
certification election by a legitimate labor organization is enough to
order the holding of a certification election. The 25% consent
requirement is no longer necessary, the same having been expressly
deleted.
ARTICLE 258. When An Employer May File Petition. When requested to
bargain collectively, an employer, may petition the Bureau for an
election. If there is no existing certified collective bargaining
agreement in the unit, the Bureau shall, after hearing, order a
certification election.

All certification cases shall be decided within twenty (20) working


days.
The Bureau shall conduct a certification election within twenty
days in accordance with the rules and regulations prescribed by the
Secretary of Labor.
ARTICLE 258-A. Employer as Bystander. In all cases, whether the petition
for certification election is filed by an employer or a legitimate labor
organization, the employer shall not be considered a party thereto
with a concomitant right to oppose a petition for certification election.
The employers participation in such proceedings shall be limited to:
(1) being notified or informed of petitions of such nature; and (2)
submitting the list of employees during the pre-election conference
should the Med-Arbiter act favorably on the petition.
If a legitimate labor organization request an employer to bargain
collectively there are two options available to the employer, namely:
1. Voluntary Recognize the representation status of the labor
organization;
2. File a petition for certification election.
ARTICLE 259. Appeal From Certification Election Orders Any party to an
election may appeal the order or results of the election as determined
by the Med-Arbiter directly to the Secretary of Labor and Employment
on the ground that the rules and regulations or parts thereof
established by the Secretary of Labor and Employment for the
conduct of election have been violated. Such appeal shall be decided
within fifteen (15) calendar days.
Remedy from a decision in a petition for certification election
Unorganized establishment

An order dismissing a petition for certification election in an


unorganized establishment may be appealed to the office of the
secretary of labor and employment within ten (10) days from receipt
thereof.
An order granting a petition for certification election in an
unorganized establishment is not appealable. Any issue arising
therefrom may be raised by means of protest on the conduct and results
of the certification election.
HOWEVER, under certain exceptional situations, appeal may be
resorted to if the Med-arbiter orders the holding of a certification
election despite the:
a. Lack of employer-employee relationship with the members of the
bargaining unit;
b. Lack of legal personality on the part of the petitioning union
either because it is not listed in the registry of legitimate unions
or because its registration has been cancelled;
c. Improper composition of the bargaining unit.
Organized establishment
In an organized establishment, the order dismissing or granting the
petition for certification election may be appealed to the Office of the
Secretary of Labor and employment within ten (10) days from
receipt.
The appeal shall be under oath and shall consist of a memorandum
of appeal, specifically stating the grounds for appeal and supporting
arguments and evidence.
The appeal shall be filed in the RO-DOLE where the petition
originated.
The filing of appeal stays the holding of certification election.

ARTICLE 260. Grievance Machinery and Voluntary Arbitration. The parties to


a Collective Bargaining Agreement shall include therein provisions that
will ensure the mutual observance of its terms and conditions. They
shall establish a machinery for the adjustment and resolution of
grievances arising from the interpretation or implementation of their
Collective Bargaining Agreement and those arising from the
interpretation or enforcement of company personnel policies.
All grievances submitted to the grievance machinery which are not
settled within seven (7) calendar days from the date of its submission
shall automatically be referred to voluntary arbitration prescribed in the
Collective Bargaining Agreement.
For this purpose, parties to a Collective Bargaining Agreement
shall name and designate in advance a Voluntary Arbitrator or panel of
Voluntary arbitrators, or include in the agreement a procedure for the
selection of such voluntary arbitrator or panel of voluntary arbitrators
duly accredited by the Board. In case the parties fail to select voluntary
arbitrator or panel of voluntary arbitrators, the Board shall designate the
Voluntary Arbitrator or panel of voluntary arbitrators, as may be
necessary, pursuant to the selection procedure agreed upon in the
Collective Bargaining agreement, which shall act with the same force
and effect as if the Arbitrator or panel of Arbitrators has been selected by
the parties as described above.
GRIEVANCE is a dispute or controversy between an employer and
the collective bargaining agent, individual employee or group of employee,
arising from interpretation or implementation of the collective bargaining
agreement or interpretation or enforcement of company personnel policies.
GRIEVANCE MACHINERY
- are processed through the
grievance machinery which the parties to a collective bargaining agreement
are required to establish under Article 260 of the labor code.

If the collective bargaining agreement does not provide for a


grievance machinery, the parties are required to create, within ten (10) days
from signing of the collective bargaining agreement, a grievance committee
to be composed of at least two (2) representatives from the members of the
bargaining unit and at least two (2) from the employer.
PROCEDURE
a. An employee shall present his grievance or complaint orally or in
writing to the shop steward. The latter shall verify the facts and
determine whether or not the grievance is VALID.
b. If the grievance is VALID, the shop steward shall immediately
bring the complaint to the employees immediate supervisor. The
shop steward, the employee and his immediate supervisor shall
exert efforts to settle the grievance at their level.
c. If no settlement is reached, the grievance shall be referred to the
grievance committee which shall have ten (10) days to decide the
case.
Where the issues involves or arises from the interpretation or
implementation of a provision in the collective bargaining agreement,
or from any order, memorandum, circular or assignment issued by
the appropriate authority in the establishment, and such issue cannot
be resolved at the level of the shop steward or the supervisor, the
same may be referred immediately to the grievance committee.
VOLUNTARY ARBITRATION
Is a system whereby the parties agree to refer their dispute to an
impartial third person for a final and binding resolution.
It is differ from compulsory arbitration in the sense that in
compulsory arbitration, the third party is appointed by the government.

ARTICLE 261. Jurisdiction of Voluntary Arbitrators or Panel of Voluntary


Arbitrators. The Voluntary Arbitrators shall have original and exclusive
jurisdiction to hear and decide all unresolved grievances arising from the
interpretation or implementation of the Collective Bargaining
Agreement and those arising from the interpretation or enforcement of
company personnel policies referred to in the immediately preceding
article. Accordingly, violations of a Collective Bargaining Agreement,
except those which are gross in character, shall no longer be treated as
unfair labor practice and shall be resolved as grievances under the
Collective Bargaining Agreement. For purposes of this Article, gross
violations of Collective Bargaining Agreement shall mean flagrant and/or
malicious refusal to comply with the economic provisions of such
agreement.
The commission, its Regional Offices and Regional Directors of the
Department of Labor and Employment shall not entertain disputes,
grievances or matters under the exclusive and original jurisdiction of the
Voluntary Arbitrator or panel of Voluntary Arbitrators and shall
immediately dispose and refer the same to the Grievance Machinery or
Voluntary Arbitration provided in the Collective Bargaining Agreement.

a.
b.
c.

d.

VOLUNTARY ARBITRATOR
Is a person accredited as such by the National Conciliation Board and
Mediation Board; or
Any person chosen or designated by the parties in the collective
bargaining agreement;
One chosen with or without the assistance of the National
Conciliation Board and Mediation Board pursuant to a selection
procedure agreed upon in the CBA; or
Any official who may be authorized by the Secretary of Labor and
Employment to act as Voluntary arbitrator upon written request and
agreement of the parties to a labor dispute, whose function is to
resolve the disputes submitted to it by the parties.

The parties can choose a labor arbiter to act as voluntary arbitrator.


The essence of voluntary arbitration is that it is by agreement of the
parties, rather than by compulsion of law, that a matter is submitted for
arbitration.
Jurisdiction of Voluntary Arbitrators
1. Unresolved grievance arising from interpretation or implementation
of a collective bargaining agreement;
2. Unresolved grievance arising from interpretation or enforcement of
the company personnel policies;
3. Disputes arising from wage distortion caused by the application any
wage order in organized establishments; and
4. Disputes arising from interpretation and implementation of the
productivity incentive programs under RA 6971;
Jurisdictional Preconditions
a. The dispute has been brought to the grievance machinery for
resolution;
b. The grievance machinery failed to resolve the dispute;
c. The parties agree to submit the dispute for voluntary arbitration.
General Rule: Disputes over the validity of dismissal or severance of
employment do not fall within the jurisdiction of voluntary arbitrators.
They fall within the original and exclusive jurisdiction of Labor Arbiter
pursuant to Article 217 of the labor code.
Disputes over validity of dismissal or severance of employment will fall
within the jurisdiction of voluntary arbitrators only when the issue
pertains to interpretation or implementation of a collective bargaining
agreement or company personnel policy.
- A distinction should be made between a case involving
interpretation or implementation of collective bargaining agreement

or company personnel policies, on the one hand, and a case


involving termination, on the other hand.
- Where the dispute is just in the interpretation, implementation or
enforcement stage, it may be referred to the grievance machinery set
up in the collective bargaining agreement or to voluntary arbitration.
- Where there was already actual termination, i.e. violation of rights, it
is already cognizable by the labor arbiter.
Termination of employment resulting from enforcement of
disciplinary rules and regulations do not fall within the jurisdiction
of voluntary arbitrators. They fall within the original and exclusive
jurisdiction of the labor arbiter.
Disciplinary rules and regulations are different from personnel
policies in the sense that personnel policies are non punitive, while
disciplinary rules and regulations are punitive in character, dealing,
as it does with employee discipline.
ARTICLE 262 Jurisdiction over the other labor disputes. The voluntary
arbitrator or panel of Voluntary Arbitrators, upon agreement of the
parties, shall also hear and decide all other labor disputes, including
unfair labor practices and bargaining deadlocks.
All other labor disputes in article 262 may include termination disputes,
provided that the agreement between the parties states in unequivocal
language that the parties conform to the submission of termination
disputes to voluntary arbitration.
There is a need for an express stipulation in the collective bargaining
agreement that termination disputes should be resolved by a voluntary
arbitrator or panel of voluntary arbitrator, considering that termination

disputes fall within a special class of disputes that are generally within the
exclusive original jurisdiction of labor arbiters by express provisions of law.
The jurisdiction of the voluntary arbitrator over the dispute is acquired
upon receipt of the submission agreement duly signed by both parties.
Only when there is an express and specific agreement between the
parties can a voluntary arbitrator exercise jurisdiction over a particular
labor dispute.
ARTICLE 262-A. Procedures The Voluntary Arbitrator or panel of
Voluntary Arbitrators shall have the power to hold hearings, receive
evidences and take whatever action is necessary to resolve the issue or
issues subject of the dispute, including efforts to effect a voluntary
settlement between the parties.
All parties to the dispute shall be entitled to attend the arbitration
proceedings. The attendance of any third party or the exclusion of any
witness from the proceedings shall be determined by the Voluntary
Arbitrator or panel of Voluntary Arbitrators. Hearing may be adjourned
for cause or upon agreement by the parties.
Unless the parties agree otherwise, it shall be mandatory for the
Voluntary Arbitrator or panel of Voluntary arbitrators to render an award
or decision within twenty (20) calendar days from the date of submission
of the dispute to voluntary arbitration.
The award or decision of the Voluntary Arbitrator or panel of
Voluntary Arbitrators shall contain the facts and the law on which it is
based. It shall be final and executory after ten (10) calendar days from
receipt of the copy of the award or decision by the parties.
Upon motion of any interested party, the Voluntary Arbitrator or
panel of Voluntary Arbitrators or the Labor Arbiter in the region where
the movant resides, in case of the absence or incapacity of the Voluntary
Arbitrator or panel of Voluntary Arbitrators for any reason, may issue a
writ of execution requiring the sheriff of the Commission or regular

courts or any public official whom the parties may designate in the
submission agreement to execute the final decision, order or award.
The power and authority of voluntary arbitrators to decide a case is limited
to those matters which have been submitted to them for arbitration.
Decisions or awards of voluntary arbitrators are appealable to the Court of
Appeals under Rule 43 of the Rules of Court. (Read page 356)
The voluntary arbitrator has the power to issue writ of execution and may
require the sheriff of the NLRC or the regular courts or any public official
whom the parties may designate in the submission agreement, to execute
the arbitration award.
In the absence of the voluntary arbitrator or in case of his incapacity, the
motion for issuance of writ of execution may be filed with the labor-arbiter
in the region having jurisdiction over the workplace.
ARTICLE 262-B. Cost of Voluntary Arbitration and Voluntary Arbitrators Fee.
The parties to a Collective Bargaining Agreement shall provide therein a
proportionate sharing scheme on the cost of voluntary arbitration
including the Voluntary Arbitrators Fee. The fixing of fee of Voluntary
Arbitrators, whether shouldered wholly by the parties or subsidized by
the Special Voluntary Arbitration Fund, shall take into account the
following factors:
(a) Nature of the case;
(b)Time consumed in hearing the case;
(c) Professional standing of the Voluntary Arbitrator;
(d)Capacity to pay of the parties; and
(e) Fees provided for in the Revised Rules of Court.
Unless the parties agree otherwise, the cost of voluntary arbitration
proceedings and voluntary arbitrators fee shall be shared equally by the

parties. If their funds are insufficient, they may avail of the subsidy under
the Special Voluntary Arbitrators Fund.
TITLE VIII
STRIKES AND LOCKOUTS AND FOREIGN INVOLVEMENT IN
TRADE UNION ACTIVITIES
Article 263. Strikes, Picketing, and Lockouts.
(a) It is the policy of the state to encourage free trade unionism and
free collective bargaining.

STRIKES
Right to engage in concerted activities
Workers shall have the right to engage in concerted activities for
purpose of collective bargaining or for their mutual benefit and protection.
The more common of these concerted activities are (a) strikes; (b) picketing;
and (c) boycotts.
Strike is any temporary stoppage of work by the concerted action of
employees as a result of an industrial or labor dispute.
To constitute strike, therefore, the concerted stoppage of work must
be:
(a) Temporary; and
(b)The result of a labor dispute.
Kinds of Strikes

In general, there are two kinds of strikes, namely:


(a) Unfair labor strike; and
(b)Economic Strike.
An Unfair labor strike is a concerted activity staged as a result of the
employers unfair labor practice. To be considered an unfair labor practice
strike, it is not necessary that the employer should actually commit an
unfair labor practice. It is enough that the strikers believed in good faith
that the employer has committed an unfair labor practice.
An Economic Strike is a concerted activity staged to force wage or
other concessions from the employer which he is not required by law to
grant.
Forms of Strike
As to the manner of execution, strikes may take the form of:
(a) Walk out is a form of strike where the employees leave their
workplace and establish themselves outside the plant and refuse
access to the owners and other employees who want to work.
(b)Sit Down is a form of strike where the strikers establish themselves
within the plant, stop its production and refuse access to the owners
and other employees who want to work.
(c) Slowdown is a form of strike where the strikers merely retard
production.
(d)Mass Leave is a form of strike where the strikers take time off from
work simultaneously.

(e) Wildcat is a strike staged without the sanction and authorization of


the union.
As to the employer against whom it is directed, a strike may take the form
of:
(a) Primary Strike this is directed against the employer because of a
labor dispute with him;
(b)Secondary Strike this is directed against the employer connected by
product or employment with alleged unfair labor conditions or
practices.
(c) Sympathy strike this is a strike staged to make common cause with
other strikers in other establishments or companies, without the
existence of any dispute between the striking employees and their
employer. There need not be a connection of product or employment.
(d)General Strike this is directed against all the employers, participated
in by the workmen irrespective of the employers for whom they are
working.
(e) Particular Strike this is directed solely against the strikers employer.
Requisites of a Valid Strike
For a strike to be valid, the following should be complied with:
1. It should be staged by a certified or duly recognized collective
bargaining representative or in the absence thereof, by a legitimate
labor organization; and
2. It should be declared only on grounds specified by law; and
3. It should comply with the requirements prescribed by law.

In the absence of a certified or duly recognized collective bargaining


representative, a strike can be declared by a legitimate labor organization in
the establishment, but only on the ground of unfair labor practices.
Therefore, employees of establishment where there is no union cannot
strike.

Legal Grounds for declaring a strike


There are only two (2) grounds for declaring a strike, namely:
(1) Collective bargaining deadlock;
(2) Unfair labor practice.
A strike declared on grounds other than unfair labor practice or collective
bargaining deadlock is illegal.

Legal Requirements of a Strike


The following are the legal requirements of a strike:
1. Notice of Strike
2. Strike Vote;
3. Strike Vote Report.
These requirements are mandatory. Failure to comply with said
requirements will render the strike illegal.
Notice of Strike
The notice of strike should be filed with the Regional Branch of the
National Conciliation and Mediation Board, and served to the company at
least:

(a) Thirty (30) days before the intended date of strike if the ground for
strike is based on collective bargaining deadlock; or
(b)Fifteen (15) days before the intended date of strike if the ground for
strike is based on unfair labor practice.
The purpose of the notice of strike is to provide an opportunity for
mediation and conciliation.

Cooling-off Period
The cooling-off period is the span of time allotted by law for the parties to
settle their disputes in a peaceful manner before declaring a strike. The
duration of the cooling off period are as follows:
1. Thirty (30) days from the filing of the notice of strike if the ground
for strike is based on collective bargaining deadlock; or
2. Fifteen (15) days from the filing of the notice of strike if the ground
for strike is based on unfair labor practice.
Observance of the cooling-off period is MANDATORY, hence, the union
cannot strike before the lapse of the cooling off period. If the union strikes
without observing the cooling-off period, the strike is ILLEGAL.
HOWEVER, in case of unfair labor practice involving dismissal from
employment of a union officer duly elected in accordance with the
constitution and by-laws which may constitute union busting and the
existence of the union is threatened, the 15 day cooling off period need not
be observed and the union may strike after the strike vote is conducted and
the results thereof submitted to the appropriate regional branch of the
National Conciliation and Mediation Board

Strike Vote
The decision to declare a strike must be approved by the majority of
the total union membership in the bargaining unit concerned, through
secret ballot in a meeting or referendum called for the purpose.
The notice of meeting or referendum should be submitted to the
regional branch of the National Conciliation and Mediation Board at least
24 hours before the holding of the meeting or referendum.
The purpose of the strike vote is to ensure that the intended strike is a
majority decision. The law does not authorize a strike to be staged by a
minority group of employees. Hence, a strike declared without approval of
the majority of the total union membership is illegal.
Strike vote report
The union should report to the regional branch of the NCMB the
results of the voting at least seven (7) days before the intended strike.
The purpose of the strike voter report is to give assurance that a strike
vote has been taken and also to enable the majority of the union members
to take appropriate remedy before it is too late, if such reports turns out to
be false.

Seven day strike Ban


The seven-day strike ban is the seven day period reckoned from the
submission of the strike vote report. During this period the union is
forbidden to strike. Observance of the seven day strike ban is mandatory.
This is reasonable restriction and a valid exercise of police power. In

computing 7 day strike ban, the first day shall be excluded and the last day
included.
Should the dispute remain unsettled after the lapse of the cooling-off
period and the seven day strike ban, the union may go on strike.
Strikes in hospitals, clinics and similar institution are strongly discouraged
because of their effects on the life and health of patients. Should a strike be
declared, the striking union must provide and maintain an effective skeletal
workforce of medical and health personnel whose movement and services
shall be unhampered and unrestricted. The secretary of labor and
employment may immediately assume jurisdiction over the dispute or
certify the same for compulsory arbitration within twenty four (24) hours
from knowledge of the occurrence of the strike.

Return to work order


If a return to work order is issued by the Secretary of Labor and
Employment, the strikers are bound to immediately comply with it even if
a motion for reconsideration has been filed. The reason is because a return
to work order is immediately executory. Strikers who defy a return to work
order may be declared to have lost their employment status. This is not
violative of the constitutional provision outlawing involuntary servitude.
Employment Status of Strikers
A strike is not a renunciation of employment relation. While out on
strike, it is not considered that the strikers have abandoned their
employment but rather have only ceased from their labor.

HOWEVER, union officers who knowingly participate in an illegal strike,


and any striker, whether union officer or not, who knowingly participates
in the commission of illegal acts during a strike may be declared to have
lost their employment status.
Reinstatement of Strikers
As a general rule, striking employees are entitled to reinstatement,
regardless of whether or not the strike was the consequence of the
employers unfair labor practice. The reason is because a strike is not a
renunciation of employment relation.
The following strikers, however, are not entitled to reinstatement:
(a) Union officers who knowingly participate in an illegal strike;
(b)Union officers or members who knowingly participate in the
commission of illegal acts during the strike; and
(c) Strikers who defy a return to work order;
Wages during strike
Under the principle of a fair days wage for a fair days labor,
strikers are not entitled to their wages during the period of the strike even if
the strike is legal.
However, backwages may be awarder:
(1) When the opposed strikers did not strike but were practically locked
out; and
(2) Where the strikers voluntarily and unconditionally offered to return
to work, but the employer refused to accept the offer without
justifiable reason.

Legality of Strike
The legality of strike is usually dependent on the purpose sought to
be attained and the means employed therefor. Thus:
(a) If the purpose is lawful and the means employed are lawful, the
strike is legal.
(b)If declared for both a legal and illegal purpose, the strike is illegal in
its entirety;
(c) If the purpose is lawful but the means employed are unlawful, the
strike is illegal.
Illegal Strike
(a) Strike staged on grounds other than those prescribed by law there
are only two grounds for declaring a strike, namely (a) collective
bargaining deadlock; and (b) unfair labor practice. If a strike is
declared on grounds other than collective bargaining deadlock or
unfair labor practice, the strike is illegal.
(b) Strike staged without complying with any of the legal requirement
of a strike the legal requirements of a strike are (a) notice of strike
(b) strike vote; and (c) strike vote report. A strike staged without
complying any of the foregoing requirements is illegal even if the
deficiency is only one (1) day.
(c) Strike declared before the lapse of the cooling off period or the seven
day strike ban observance of the cooling off period and the seven
day strike ban is mandatory.
(d) Strike declared after the Secretary of Labor and Employment has
assumed jurisdiction over the dispute or certified the same for

compulsory arbitration a strike declared after the Secretary of


Labor and Employment has assumed jurisdiction over the dispute or
certified the same for compulsory arbitration is ILLEGAL. Article 264
(a) of the Labor Code expressly ordains that no strike shall be
declared after assumption of jurisdiction by the President or the
Minister or after certification or submission of the dispute to
compulsory or voluntary arbitration or during the pendency of cases
involving the same grounds for the strike or lockout.
(e) Strike declared after the notice of strike has been converted into
preventive mediation - this is illegal because the notice of strike
ceased to be such upon its conversion to preventive mediation, hence,
it is as if no notice of strike has been filed.
(f) Strike carried out with the use of force, violence, physical injuries,
sabotage and unnecessary obscene language this is ILLEGAL
because it is violative of Article 264 (e) of the Labor Code.
Furthermore the Constitution guarantees only peaceful concerted
activities.
(g)Strike staged in violation of the no-strike stipulation of a collective
bargaining agreement the strike will be deemed ILLEGAL for
violating the no-strike stipulation only if it is an economic strike. If
the strike is based on unfair labor practice, the no-strike stipulation is
not violated.
(h)Strike staged without giving the employer ample time to consider
and act on the demands of the union this is ILLEGAL because of its
unreasonableness.

(i) Strike without exhausting or availing of the grievance machinery


under the collective bargaining agreement if a labor organization
declares a strike without exhausting or availing of the grievance
machinery under the collective bargaining agreement, the strike is
ILLEGAL, and its illegality will be declared even if the management
failed to do its duty in connection with the formation of the grievance
committee. Such omission does not give the union the right to declare
a strike outright because it is duty bound to exhaust all available
means within its reach before resorting to force.
(j) Strike to staged without first resorting to pacific means provided by
law a strike staged without first resorting to any of the pacific
means provided by law is ILLEGAL because it is unreasonable.
(k)Strike declared to correct wage distortion this is ILLEGAL because
strike is not the remedy prescribed by law to correct wag distortion.
(l) Strike staged to compel an employer to negotiate a collective
bargaining agreement during the pendency of a petition for
certification election this is ILLEGAL because during the pendency
of certification election proceeding, the duty to bargain collective
does not exist.
(m)

Strike staged by a minority union to compel the employer to

bargain with it despite the existence of a certified bargaining agent


this is ILLEGAL because no labor dispute can exist between an
employer and a minority union.
(n)Strike declared for trivial, unjust or reasonable purpose this is
ILLEGAL because the purpose is not lawful.

(o)Strike on a simple violation of the collective bargaining agreement


a labor organization cannot strike on a simple violation of the
collective bargaining agreement by the employer, because such
violation does not constitute unfair labor practice. Under Article 261
of the labor code, only gross violations of a collective bargaining are
treated as unfair labor practice.
(p)Strike on grounds involving inter-union or intra union disputes this
is ILLEGAL because it is violative of Article 263 (b) of the Labor Code
which prohibits strike on grounds involving inter-union or intra
union disputes.
(q) Strikes declared without first having bargained collectively this is
illegal because it is violative of Article 264 (a) of the Labor Code.

Sanction for Illegal Strike


It used to be the rule that employees who stage an illegal strike were
penalized with loss of employment status.
The present doctrine is that an illegal strike does not automatically warrant
the wholesale dismissal of strikers. Only the following strikers can be
penalized with loss of employment status:
(a) Union officers who knowingly participate in an illegal strike; and
(b)Union officers and members who knowingly participate in the
commission of illegal acts during a strike.
Illegal acts include violence, physical injuries, coercion, intimidation,
possession of deadly weapon, obstruction of the free ingress or egress from

the employers premises and defiance of return-to-work order or


assumption/certification order.
If the strike is ILLEGAL, the employer cannot be restrained or enjoined
from imposing the appropriate sanctions against the union officers who
knowingly participated in the illegal strike and against striking
employee who committed illegal acts during the strike. Since, the strike is
ILLEGAL, the employer has the right to take disciplinary action against the
union officers who participated in it and against any member who
committed illegal acts during the strike.
Liability for damages arising from an illegal strike
In order to hold the union and the strikers liable for damages, the best
evidence obtainable must be presented. Actual or compensatory damages
cannot be presumed, but must be duly proved with reasonable degree of
certainty. In the absence of competent proof of actual damage the employer
is entitled to nominal damages which as the law says is adjudicated in
order that the defendant may be vindicated and recognized, and not for the
purpose of indemnifying the plaintiff for any loss suffered.
Injunction Against Strikers
As a general rule, a strike cannot be enjoined even if it may appear to
be illegal because strike is a weapon that the law grants the employees for
their protection and advancement of their interest.
HOWEVER, under the following exceptional circumstances, a strike
may be enjoined:
(a) If declared against an industry indispensable to national interest,
in which case the Secretary of Labor and Employment may assume
jurisdiction or certify the dispute for compulsory arbitration. Such

assumption or certification has the effect of automatically


enjoining strike.
(b)If staged by employees who are not accorded the right to strike,
like managerial employees or employees of government-owned or
controlled corporations with original charters;
(c) If staged because of an intra-union or inter-union dispute.

Article 264
Limitations on the Right to strike or lockout
A strike or lockout cannot be declared:
1. Without first having bargained collectively;
2. Without first having filed the notice of strike/lockout
3. Without the necessary strike or lockout vote first having been
obtained and reported to the DOLE;
4. After the secretary of Labor and Employment assumes jurisdiction or
certifies the dispute to compulsory or voluntary arbitration;
5. During the pendency of case involving the same grounds for the
strike or lockout.
Limitations on the Right to Picket
Persons or employees engaged in picketing are forbidden from:
(1) Committing any act of violence, coercion, or intimidation;

(2) Obstructing the free ingress to and egress from the employers
premises; and
(3) Obstructing public thoroughfares.

Obstruction in public properties, such as streets, sidewalks, alleys, may be


summarily removed by the local governments, through their respective law
enforcement authorities without consulting with the DOLE, because these
obstructions are considered as nuisances per se.
Obstructions in points of egress and ingress of private properties during a
labor dispute may be removed in accordance with proper orders issued by
the Office of the Secretary of Labor and Employment or by the National
Labor Relations Commission or its arbitration branches.

Strike breaker is a person who obstruct, impedes, or interferes with by


force, violence, coercion, threats or intimidation any peaceful picketing by
employees during any labor controversy affecting wages, hours or
conditions of work or in the exercise of the right to self organization.
Escorting of Replacements
Article 264 (d) of the Labor Code prohibits public officers or personnel of
the Armed Forces of the Philippines, PNP, or any armed person bringing in
or escorting any individual in entering or leaving the premises of a strike
area to replace striking employees.
What is prohibited is the escorting of individuals in entering or leaving the
strike area to replace the striking employees.

Strike Area refers to establishment, warehouses, depots, plants or


offices, sites or premises used as runaway shops and the immediate vicinity
actually used by the picketing strikers in moving to and from before all
points of entrance to and exit from said establishment.
The PNP may be called upon to perform the limited role of enforcing the
laws and legal orders of duly constituted authorities and maintaining peace
and order to protect life and property during strikes lockouts, and other
labor disputes.
The peace keeping personnel should not be stationed in the picket or
confrontation line, but in such place as their presence may deter the
commission of criminal acts from either side. They should maintain
themselves at a distance of fifty (50) meters from the picket line, except, if
the 50 meter radius includes a public thoroughfare, in which case, they may
station themselves in such public thoroughfare for the purpose of insuring
the free flow of traffic.
Service of Lawful orders or writs
The service of lawful orders or writs is the primary concern of the
representative of the DOLE, sheriff or representative of the government
agency issuing the order. The role of police officer is only supportive. Only
when specifically stated and requested in the order or writ should police
personnel enforce such orders or writs.
Remedies
For violation of Article 264 (a) of the Labor Code, the remedy is to file the
Arbitration Branch of the NLRC a petition to declare the strike or lockout
illegal.

For violation of Articles 264 (b), (c), (d) and (e) of the Labor Code, the
remedy is to file a petition for injunction with the NLRC.
In addition, criminal action may be filed for any violation of Article 264 of
the Labor Code, the penalties of which are set forth in Article 272 of the
same code.
Article 265 Improved Offer Balloting
Referendum on Improved Offer
Improved offer balloting is a referendum conducted by the DOLE wherein
the strikers vote by secret ballot on whether to accept the improved offer of
management.
Referendum on Reduced Offer
Reduced offer balloting is a referendum conducted by the DOLE wherein
the board of directors or trustees or the partners holding the controlling
interest in the case of partnership, vote by secret ballot on whether to accept
the reduced offer of the strikers.

Article 266 Requirement for Arrest And Detention


Arrest or Detention of Union Officers/Members
As a general rule, union officers, members or organizers cannot be arrested
or detained for union activities without previous consultation with the
Secretary of Labor and Employment.
Consultation, however, is not necessary if the arrest is made:
(a) On grounds of national security and public peace; or

(b)In case of commission of a crime.


Filing of Criminal cases
Before filing a criminal case relating to or arising out of a labor dispute,
clearance must first be obtained from the DOLE or the Office of the
President. An Injunction order issued in a labor case is considered as
compliance with the clearance requirement.
Security of tenure

Article 278 Coverage The provisions of this title shall apply to all
establishments or undertakings, whether for profit or not.
Unlike the previous law, the provisions of the Labor code on termination of
employment are extended to employees of entities which are not operated
for profit or gain, such as educational, medical, religious or charitable
institutions and organizations. The purpose is this is to extend the
employees of such entities the same rights and benefits granted to workers
of industrial and commercial enterprises.
Article 279 Security of Tenure In cases of regular employment, the
employer shall not terminate the services of an employee except for a just
cause or when authorized by this Title. An employee who is unjustly
dismissed from work shall be entitled to reinstatement without loss of
seniority rights and other privileges and to his full backwages, inclusive
of allowances, and to his other benefits or their monetary equivalent
computed from the time his compensation was withheld from him up to
the time of his actual reinstatement.

Security of tenure is an act of social justice. It is intended to protect an


employee against any arbitrary an unjust deprivation of his job.
Security of tenure is principally intended to protect employees who are
holding regular employment.
However, this does not mean that employees who are holding non-regular
employment, such as project employees, seasonal employees or fixed term
employees are not entitled to security of tenure. They are also entitled to
security of tenure, although in a qualified manner, in the sense that they
cannot be terminated without just cause prior to the completion of the
project, season or term employment.
Probationary employees are also entitled to security of tenure, in the sense
that during their probationary employment, they cannot be dismissed
except for a just cause or authorized cause.
Managerial employees have the right to be secure in their employment,
although they are subject to stricter norm of discipline than rank and file
employees.
Even casual employees who have rendered at least one (1) year of services
are accorded the right of security of tenure, in the sense that their
employment cannot be terminated without just cause, as long as the
activity in which they were employed exists.
Extent of the right
Security of tenure protects an employee not only against arbitrary or
unjust dismissal, but also against other personnel actions (such as transfer
or demotion), which are calculated to force an employee to give up his
employment without valid reason.

Limitations
Security of tenure is not a guarantee or perpetual employment
because our law, while affording protection to the employee does not
authorize oppression or destruction of an employer.
Managerial Prerogatives
Acts by which one directing a business is able to control the variables
thereof so as to enhance the chances of making profit.
The exercise of managerial prerogatives belongs solely to the
employer. The employer is free to determine, according to his own
discretion and business judgment, all aspects of employment, including
hiring, work assignment, working methods, time, place and manner of
work, tools to be used, processes to be followed, supervision of workers,
working regulations, transfer of employees, work supervision, lay-off of
workers, discipline, dismissal and recall of work.
Prerogative of to choose whom to hire the right to select and appoint
employees is the prerogative of an employer.
Prerogative to promote employees Promotion (Is the advancement from
one position to another with an increase of duties and responsibilities and
usually accompanied by an increase in salary). Just as the employer has the
right to choose whom to promote, the employee also has the right to
decline a promotion. There is no law that compels an employee to accept a
promotion, considering that promotion is in the nature of a gift, or reward
which a person has the right to refuse.
Prerogatives to transfer employees Transfer (is the movement of an
employees from one position to another position of equivalent rank, level or
salary without break in service.) The right to transfer employees is purely

an act of management which the employee cannot impose upon the


employer, otherwise, if he will be allowed to do so, it would undoubtedly
encroach upon the managerial function of the management. If the
employee refuses to be transferred, the employer could validly dismiss him
on the ground of insubordination or willful disobedience. Like other
rights, the prerogative to transfer an employee is not without limits. It
cannot be used as a sanction for union activities. Neither can it be used as a
pretext to get rid of an unwanted employee. Nor it can be used as a
subterfuge for demotion.
Prerogative to reduce personnel for economic reasons an employer has
the right to reduce its personnel whenever warranted by economic reason.
This right is recognized by Article 283 of the Labor Code which authorizes
an employer to terminate an employment on the ground of installation of
labor saving devices, redundancy and retrenchment to prevent losses.
Prerogative to reduce working hours/days it is also the inherent right of
an employer to reduce its working hours/days.
Prerogative to change working hours an employer has the prerogative to
change the working hours of its employees whenever the exigencies of the
service so require.
Prerogative to abolish a department or section the determination of the
usefulness of a section is a management prerogative. If the employer
decides to abolish a department or section, such action may not be
questioned, particularly where it was impelled by economic reasons, such
as continuous operational losses coupled with lack of demand for services
of such section.
Prerogative to reorganize and abolish the prerogative to reorganize
springs from the right of an employer to conduct its own business affairs to

achieve its purposes. reorganization often results in the abolition of


positions and the creation of new ones. If the purpose of reorganization is
to be achieved, the affected employees cannot validly insist in their old
position and ranking because that would render the reorganization
ineffectual.
Prerogative to Spin-Off a portion of its business it is also the prerogative
of an employer to spin-off a portion of its business.
Prerogative to close down its business the right to close down the
establishment is a privilege of management considering the many factors
that are linked with the business and capital which can and should only be
solved and determined by management. As a general rule, the state should
not interfere with the managements decision to close down its business.
No business or undertaking must be required to continue operating at a
loss just to keep the employment of its workers. The right to close down the
entire establishment carries with it the right to close a part thereof.
Prerogatives to transfer business ownership it is within the employers
legitimate sphere of management control of the business to adopt economic
policies or make some changes or adjustments in their organization or
operations that would insure profit to itself or protect the investment of its
stockholders. It the exercise of such management business prerogative, the
employer may merge or consolidate its business with another or sell or
dispose all or substantially all of its assets and properties even if it may
bring about the dismissal or termination of its employees in the process.
An innocent transferee/buyer of a business establishment is not liable for the past
unfair labor practice of the previous owner, EXCEPT when the liability therefor is
assumed by the new owner under the contract of sale, or when the liability arises
because of the new owners participation in thwarting or defeating the rights of

employees. If the transferee was done in bad faith, the liability should be
shared by both transferor and transferee.
Prerogative to Discipline Employees it is the right of an employer to
promulgate rules and regulations and punish employees violating the
same.
Disciplinary Penalties
Disciplinary penalties usually take the form of warning, reprimand,
suspension, demotion, or dismissal from services.
Penalty of Warning Warning is a disciplinary penalty usually imposed
for first offenders who commit a minor offense. It is a caution for the erring
employee to refrain from committing the same offenses in the future under
pain of a more severe penalty.
Penalty of Reprimand Reprimand is a bit more severe than warning in
the sense that it is accompanied by censure, rebuke, or sharp scolding.
Penalty of Suspension Suspension is the temporary separation of an
employee from service. This usually imposed for less serious offenses or for
minor offense that lighter sanctions failed to rectify.
Penalty of Demotion Demotion is the transfer of an employee to a lower
rank or position with corresponding reduction in salary. The right to
demote an employee is part of the disciplinary prerogative of an employer.
Penalty of Dismissal Dismissal is the highest penalty that can be
imposed against an erring employee. Dismissal severs employment ties and
could well be the economic death sentence of an employee. Due to its far
reaching implications, the Labor Code decrees that the employee cannot be
dismissed, EXCEPT for the most serious causes.

Determination of Appropriate Penalty As to what type of disciplinary


action

should

be

imposed

will

depend

upon

the

surrounding

circumstances of each case. Factors that should be considered are:


(a) Nature of the offense;
- Serious offenses necessarily deserve the supreme penalty of dismissal. On
the other hand, offenses that are not so serious would merely warrant a
penalty lower that dismissal.
(b) Position of the Employee;
- The rules on termination of employment as well as penalties for
infractions are not necessarily the same as those for ordinary employees.
(c) Degree of Damage;
- In some cases, the degree of damage suffered by the employer may be
taken into account in imposing the proper penalty.
(d) Past record of the employee;
- Past offenses of similar character are relevant for purposes of determining
the appropriate penalty for the present violation.
(e) Length of service of employee;
- The longer an employee stays in the service, the greater is his
responsibility for knowledge and compliance with the norms of conduct
and the code of discipline of the employer.
It should be understood, however, that all the foregoing factors, i.e., length
of service, past record of the employee, will be overshadowed by the
seriousness of the offenses. In the final analysis, the law warrants the
dismissal of an employee without making any distinction between first

offender and habitual delinquent where the totality of the evidence is


sufficient to warrant dismissal.
Illegal Dismissal
In a strict sense, illegal dismissal refer to termination of employment that is
expressly prohibited by law. Our laws declare it illegal for an employer:
(a) To dismiss an employee who has filed a labor complaint or instituted a
proceeding under Title II of the Labor Code (on wages) or has testified or is
about to testify in such proceedings;
(b) To dismiss a female employee for the purpose of preventing her from
enjoying the benefits granted by the Labor Code;
(c) To dismiss a female employee on account of her pregnancy, or while on
leave due to her pregnancy;
(d) To dismiss a female employee upon returning to her work for fear that
she may again be pregnant;
(e) To dismiss an employee for having given or being about to give
testimony under the Labor Code;
(f) To dismiss an employee who was called upon by the State to fulfill a
military or civic duty during the fulfillment of such duty;
Unjust Dismissal
A dismissal is unjust if the services of an employee are terminated
without the just causes specified in Article 282 of the Labor Code. In a
broad sense, illegal dismissal includes unjust dismissal.
Illustrative Cases of Illegal/Unjust Dismissal

(a) Dismissal for minor or unimportant infractions.


(b)Dismissal for filing of a complaint for violation of the Minimum Wage
Law;
- It shall be unlawful for any person to discharge or in any other
manner to discriminate against any employee because such
employee has filed or instituted or cause to be instituted any
proceeding under or related to this act.
(c) Dismissal for an offense instigated by the employer;
(d)Dismissal due to the union activities of the employees brother;
(e) Dismissal due to union activities;
(f) Dismissal for soliciting signatures to form a union;
(g)Dismissal for refusing to join the union favored by the employer;
Remedy for Illegal or Unjust Dismissal
The only recourse available to an employee who is illegally or
unjustly dismissed is to file a complaint for illegal dismissal with the Labor
Arbiter. Article 277 (b) of the Labor Code expressly provides that the
employee may contest the validity or legality of his dismissal by filing a
complaint with the regional branch of the NLRC.
Therefore a petition for injunction is NOT the proper remedy because
injunction is not a cause of action in itself but merely a provisional remedy
an adjunct to a main suit.
Reliefs for Unjust or Illegal Dismissal
Migrant workers

A migrant or overseas worker who is unjustly or illegally dismissed is


entitled to:
(a) Full reimbursement of his placement fee with twelve percent (12%)
interest per annum;
(b)Salaries for the unexpired portion of his employment contract;
Local Employed Workers
Locally employed employees who are unjustly or illegally dismissed are
entitled to:
(a) Reinstatement without a loss of seniority rights and other privileges;
(b)Backwages, inclusive of allowances, and to his other benefits or their
monetary equivalent computed from the time his compensation was
withheld from him up to the time of his actual reinstatement;
(c) Moral and exemplary damages, if the dismissal was tainted with
malice or bad faith; or
(d)Separation pay under certain condition.
Reinstatement
Reinstatement is a relief separate and distinct from backwages. While
ordinarily, reinstatement is a concomitant of backwages, the two are not
necessarily complements, nor is the award of one a condition precedent to
an award of the other. Simply stated, reinstatement restores the lost
position while backwages restores the lost income.
Reinstatement in its generally accepted sense refers to a restoration to
a state from which one has been removed or separated. It is the return to
the position from which he was removed.

Meaning of Reinstatement Without loss of seniority rights


The phrase without loss of seniority rights means that upon
reinstatement, the employee is to be treated in matters involving rank,
position and continuity of employment as though he has not been absent
from work.
Alternative Relief if Reinstatement is no longer possible
If the position no longer exists at the time of the reinstatement, the
unjustly dismissed employee should be given a substantially equivalent
position. If reinstatement is rendered impossible, hence, the relief available
to the employee is separation pay equivalent to at least one (1) month
salary for every year of service plus backwages, if warranted. HOWEVER,
when the reinstatement of the illegally dismissed employee is rendered
unfeasible because he has reached the retirement age of sixty (60), the relief
of separation pay is not available. The employee concerned would only be
entitled to backwages up to the time when he reached the retirement age,
plus, of course, his retirement pay.
Propriety of Reinstatement
The relief of reinstatement is available only to employees who are
unjustly or illegally dismissed. If an employee was not dismissed, as when
the severance of employment was brought about by the employees
abandonment of his employment, or by his refusal to work, reinstatement
cannot be properly ordered.
Effect of Employment Elsewhere
An unjustly dismissed employee cannot be denied the right to
reinstatement simply because he has obtained employment elsewhere. The
reason is because a dismissed employee cannot be expected to remain idle

while his claim is pending adjustment, particularly if he has dependents


looking to him for sustenance.
Circumstances that Precludes Reinstatement
The right to reinstatement may be precluded by the following:
(a) Transfer of Business Ownership the new owner is not obliged to
absorb the employees of the old owner, unless there is an express
assumption of liabilities by the new owner.
(b)Business Reverses an employer cannot be compelled by an order of
reinstatement to give employment to a greater number of persons
than the economic operations of the business requires.
(c) Abolition of Position if the position occupied by an illegally
dismissed employee has already been abolished, and there is no
substantially

equivalent

position,

reinstatement

is

rendered

impossible, hence it could no longer be carried out;


(d)Closure of Business if the establishment has closed down its
operation, reinstatement cannot be ordered because that would
amount to exacting from the employer compliance with the
impossible.
(e) Incapacity of the employee fairness dictates that an employer
should not be compelled to reinstate an employee who is no longer
physically fit for the job from which he was illegally ousted.
(f) Attainment of Retirement Age an employee held to be illegally
dismissed cannot be reinstated if he has reached the retirement age of
sixty year.

(g)Conviction of criminal case because the subsequent conviction is a


supervening event that rendered unjust and inequitable the
reinstatement of the employee.
(h)Laches reinstatement not demanded within a reasonable time may
be barred by laches.
(i) Prescription an action for reinstatement filed after four (4) years
from the date of dismissal will be barred by prescription;
(j) When the complaint merely prays for separation pays when the
employer merely prays for separation pay he forecloses his right to
reinstatement.
(k)Strained relations Even if the dismissal is found to be illegal or
unjust, reinstatement should not be ordered anymore if the
relationship between the parties has become so strained and ruptured
as to preclude a harmonious working relationship.
When to invoke the doctrine of strained relations
As a general rule, the matter of strained relations should be raised
and proved before the Labor Arbiter, unless the strained relations arose
after the filing of the case, as when the antagonistic feelings that stemmed
from the filing of the complaint deepened during the eight year pendency
of the case. Strained relations may also be raised during the execution
proceedings as a supervening event which would render execution unjust
and inequitable.
Remedy for refusal to comply with a reinstatement order
The remedy for refusal to comply with a final order of reinstatement
is not a separate action for illegal dismissal but a motion for issuance of

writ execution. If the employer still refuses to comply with the


reinstatement order despite the issuance of a writ of execution, the remedy
is not the grant of additional backwages, but contempt proceedings.
Backwages
Backwages is not the principal cause of action in an illegal dismissal
case. It is merely one of the reliefs extended to an employee who is unjustly
dismissed. In an illegal dismissal case, the principal cause of action is the
unlawful deprivation of ones employment by the employer in violation of
the right to security of tenure.
Backwages is a form of relief that restores the income that was lost by
reason of unlawful dismissal.
Backwages refer to the compensation which an employee would have
earned had he not been unjustly dismissed.
Unpaid Wages refer to compensation for services already rendered but
withheld by the employer;
Article 279 of the Labor Code provides that an unjustly dismissed
employee is entitled to full backwages from the time his compensation was
withheld up to the time of his actual reinstatement.
It should be borne in mind that a dismissal could be illegal or unjust
because the employee was dismissed:
(a) On grounds specifically prohibited by law;
(b)Without any cause whatsoever, i.e. the employee has not committed
an offense; or

(c) With just cause, i.e. the employee has committed an offense but the
penalty of dismissal is not commensurate.
Full Backwages
If the employee was dismissed on grounds specifically prohibited by law,
i.e. those falling under Articles 118, 137, 248 (f), and 286 of the labor code,
he is entitled to full backwages because, the employee should not have been
dismissed in the first place.
Similarly, if the employee was dismissed without any just cause
whatsoever, i.e. the employee has not committed an offense, he is entitled to
full backwages. The reason is because the employee, does not deserve any
penalty considering that he has not committed any offense.
Limited Backwages
On the other hand, if employee was dismissed without just any cause i.e.
the employee has committed an offense but the penalty of dismissal was
found to be harsh or excessive, full backwages should not be awarded from
his wrongdoing. In such a situation, the employee is entitled only to limited
backwages.
No backwages
Backwages may not be awarded if any of the following circumstances are
present:
(a) Good faith on the part of the employer;
(b)

Article 280 Regular and Casual Employment


Article 280 of the labor code merely establishes the classification of
employment it is not the yardstick for determining the existence of an
employment relationship. The existence of employer-employee relationship
should be established along the four fold test laid down in Viana vs. AlLagadan, to wit (a) selection and engagement of the employer; (b) payment
of wages; (c) power of dismissal; and (d) power to control the employees
conduct.
Classification of Employment
Article 280 of the Labor Code classifies employment into three (3) types,
namely:
(a) Regular or permanent;
(b) Non-Regular or temporary; and
(c) Casual
Regular and Permanent Employee an employment is deemed regular
where the employees has been engaged to perform activities that are
usually necessary or desirable in the usual business or trade of the
employer.

The test for determining whether an employment is regular or casual has


nothing to do with the manner of computing or paying an employees
wages or compensation. The primary standard in determining whether an
employment is regular or not, is the reasonable connection between the
particular activity performed by the employee in relation to the usual
business or trade of the employer. The connection can be determined by
considering the nature of the work performed and its relation to the
scheme of the particular business or trade in its entirety.
Non Regular or Temporary Employment the rule that an employment is
deemed regular where the employee has been engaged to perform activities
that are usually desirable in the usual business or trade of employer, admits
of exceptions, namely:
(a) Project employment;
(b) Seasonal Employment;
(c) Fixed Term Employment.
The law does not consider them a regular employment because the
engagement of the employee is only for a limited period.
Project Employment is a job that is confined to a specific project or
undertaking, the completion or termination of which has been determined
at the time of the engagement of the employee, regardless of the number of
years that it would take to finish the undertaking.
specific project or undertaking under Article 280 of the Labor Code
contemplates:
(a) An activity which is not commonly or habitually performed; or

(b) A type of work which is done on a daily basis but only for a specific
duration of time until completion.
In project employment, the duration of employment is co-terminus with
the work to which the employee was assigned.
Seasonal Employment is a job that is limited to the duration of a
particular season. The employment of seasonal employees is co-terminus
with the duration of the season. HOWEVER, if the same employees are
repeatedly engaged every season, they become regular seasonal
employees, in which case, they cannot be terminated without just cause.
Fixed-Term

Employment

as

general

proposition,

temporary

employment is not limited to those by nature seasonal or for specific


projects with pre-determined dates of completion. It also includes those to
which the parties by free choice have assigned a specific date of
termination.
In an employment for a fixed period, the determining factor is not the
activity that the employee is called upon to perform but the day certain
agreed upon by the parties. A day certain means that which must
necessarily come, although it may not be known when.
By way of resume, employment contracts for a fixed period cannot be said
to be said to be in circumvention of security of tenure:
(a) If the fixed period of employment was knowingly and voluntarily
agreed upon by the parties without any force, duress or improper pressure,
being brought

to bear upon the employee and without any other

circumstances vitiating consent; or

(b) If it satisfactorily appears that the employer and employee dealt with
each other on more or less equal terms with no moral dominance whatever
being exercised by the former on the latter.
Casual Employment is a job wherein the activities performed by the
employee are not usually necessary or desirable in the usual business or
trade of the employer.
Casual means occasional, coming without regularity. The employment is
purely casual when it is not part of the business in which the employer is
engaged.
A casual employee who has rendered at least one (1) year of service,
whether such service is continuous or broken, is considered a regular
employee with respect to the activity in which he is employed. The regular
status attaches to the casual employee on the day immediately after the end
of the first year of service. The significance of this is that he cannot be
terminated without just cause while such activity exists.
Article 106 and 280 of the labor code should be distinguished from each
other. Article 106 applies to employees hired through a contractor, while
280 applies to employees directly hired by an employer.

DEPARTMENT ORDER NO. 19 (Series of 1993)


GUIDELINES GOVERNING THE EMPLOYMENT OF WORKERS IN THE
CONSTRUCTION INDUSTRY
(PAGE 529)
Article 281 Probationary Employment

Probationary Employment is a situation where the employee upon his


engagement is made to undergo a trial period during which the employer
determines his fitness to qualify for regular employment, based on
reasonable standards made known to him at the time of engagement. The
employment contract or appointment paper should expressly and
specifically state that the engagement of the employee is on probationary
status, otherwise, the employment cannot be considered as probationary.
The purpose of probationary employment is to allow the employer to
test the working habits and other personal traits of the employee with
respect to his fitness for regularization in the company.
Duration of Probationary Employment of Ordinary Employees
Generally, the probationary period of employment of ordinary
employee is limited to six (6) months. The exceptions to this general rule
are:
(a) When the parties to an employment contract or collective bargaining
agreement agree on a longer period;
(b) When a longer probationary period is established by company policy;
(c) When a longer period is required by the nature of work.
Duration of Probationary Employment of Teachers
By virtue of DOLE-DECS-CHED-TESDA Order No. 1 series of 1996,
the probationary period for teaching and academic non-teaching personnel
are as follows:
(1) For elementary and secondary level three (3) consecutive school years
of satisfactory service;

(2) For tertiary and graduate level six consecutive semesters of


satisfactory service;
(3) For tertiary level on trimester basis nine (9) consecutive trimesters of
satisfactory service.
The school, as employer, is the one who is to set the standards and
determine whether or not the services of an employee are satisfactory. It is
the prerogative of an employer to determine whether or not the said
standards have been complied with. In fact it is the right of the employer to
shorten the probationary period if he is not impressed with the services of
the employee.
With regard to teaching or academic personnel, only those employed
on full time basis can acquire regular or permanent status. Part-time
teaching or academic personnel are not eligible for regular or permanent
employment even if they have satisfactorily completed the required
number of years, semesters or trimesters of probationary employment.
Probationary employment can be extended to give the employee a
chance to improve. Such extension, however, should be done on or before
the expiration of the prescribed period otherwise the employee will
automatically become a regular employee by operation of law.
Termination of Probationary employment
The services of an employee who has been engaged on a
probationary basis may be terminated for:
(a) Any of the causes enumerated in Articles 282, 283, and 284 of the labor
code;

(b) Failure to qualify as a regular employee in accordance with reasonable


standards made known by the employer at the time of his engagement.
Termination of probationary employment may be done even before the
expiration of the probationary period.
Limitations on the Right to terminate a probationary employment
The power of an employer to terminate a probationary employment is
subject to the following limitations:
(a) It must be exercised in accordance with the specific requirements of the
contract;
(b) The dissatisfaction of the employer must be real and in good faith, not
feigned so as to circumvent the contract or the law; and
(c) There must be no unlawful discrimination in the dismissal.
Article 282 Termination by Employer An Employer may terminate an
employment for any of the following causes:
(a) Serious Misconduct or willful disobedience by the employee of the
lawful orders of his employer or representative in connection with his
work;
(b) Gross and habitual neglect by the employee of his duties;
(c) Fraud or willful breach by the employee of the trust reposed in him
by his employer or duly authorized representative;
(d) Commission of a crime or offense by the employee against the person
of his employer or any immediate member of his family or his duly
authorized representative; and
(e) Other causes analogous to the foregoing.

COMMENT
Serious Misconduct
Misconduct is improper or wrong conduct. It is the transgression of some
established and definite rule of action, a forbidden act, a dereliction of duty,
willful in character, and implies a wrongful intent and not a mere error of
judgment.
To constitute a just cause for dismissal, the misconduct must be:
(a) Serious; and
(b) Related to or in connection with the employees work.
If the misconduct is not serious it will merely warrant a penalty lesser than
dismissal.
Article 282 (a) of the labor code expressly provides that an employer may
terminate an employment for xxx serious misconduct xxx in connection
with his work. This means that the act complained of must be related to
the performance of the duties of the employee such as would show him
to be thereby unfit to continue working for the employer.
A series of irregularities when put together may constitute serious
misconduct.
Examples of Serious Misconduct
(a) Assaulting an agent of a person in authority committed by a security
guard;
(b) Assaulting a co-employee;
(c) Drunken and disorderly and pugnacious behavior;

(d) Fighting within company premises;


(e) Quarreling;
(f) Disrespect to company officials;
(g) Challenging a superior to a fight;
(h) Destroying employers property and assaulting the House Officer;
(i) Uttering obscene, insulting or offensive words against a superior;
(j) Making perjurious statement to favor a fellow employee;
(k) Making false accusation against co-employees;
(l) Making unfounded accusation against the employer;
(m) Falsification of time cards;
(n) Making false reports;
(o) Fraudulent weighing of cargo;
(p) Taking out customers property;
(q) Immorality on the part of a teacher;
(r) Accepting bribe from motorists;
(s) Demanding money for the repair of telephone;
(t) Pressuring a co-professor to change a failing grade to a passing grade;
(u) Instigating labor unrest;
Willful Disobedience

One of the fundamental duties of an employee is to yield obedience to all


reasonable rules, orders and instructions of his employer. Willful or
intentional disobedience thereof, as a general rule, justifies the peremptory
dismissal of the employee.
In order that disobedience to employers order can constitute a valid cause
for dismissal, the following requisites must be complied with:
(a) The disobedience must be willful or intentional;
(b) The order must be reasonable and lawful;
(c) The order must be known to the employee;
(d) The order must pertain to or must be in connection with the duties
which the employee had been engaged to discharge.
Disobedience must be willful
Willfulness of disobedience is characterized by a wrongful and perverse
mental attitude rendering the employees act inconsistent with proper
subordination. The disobedience must be done intentionally, knowingly,
and purposely, without justifiable excuse, as distinguished from an act
done carelessly, thoughtlessly, heedlessly or inadvertently.
Order must be reasonable
Reasonableness pertains to the kind or character of directives and
commands and to the manner which they are made.
Order must be lawful
An order is lawful if it is not contrary to law, morals, good customs, public
policy or public order.

Order must be known to the employee


An employee cannot be expected to comply with an unknown order.
Order must be in connection with the duties of the employee
The following acts have been held as valid causes for dismissal on the
ground of willful disobedience.
(a) Refusal to obey transfer order;
(b) Refusal to comply with an order requiring that food requirements
should be bought from a single source;
(c) Repeated disregard by a bank employee of an office order against
temporary overdrafts and drawings against uncollected deposits;

Gross and Habitual Neglect of Duty


To constitute a ground for dismissal, neglect of duty must be both gross
and habitual.
Neglect indicates as a purely objective fact that a person has not done
that which it was his duty to do it does not indicate the reason for this
failure.
Negligence is a subjective state of the mind it indicates a particular
reason why the man has failed to do his duty, namely because he has not
kept the performance of the duty in his mind as he ought to have done. A
man can neglect his duty either intentionally or negligently.
Damage not essential

It is not necessary for the employer to show that he has suffered


damage or prejudice as a result of the employees neglect of his duties. It is
enough that the act tends to damage or prejudice the employer. The
employer should not be expected to wait until he suffers damage or injury
before taking action against the employee.
Illustrative cases of gross and habitual neglect of duty
(a) Prolonged absences;
(b) Delivering newly approved credit cards on five (5) occasions to a person
hardly known to the employee;
(c) Repeated and numerous infractions in the handling of monies;
(d) Repeated anomalous transactions;
Fraud
Fraud is the knowing misrepresentation of the truth or concealment of a
material fact to induce another to act to his or her detriment.
To constitute a just cause for dismissal, the fraud must be:
(a) Committed against the employer;
(b) In connection with the employees work;
Therefore, fraud committed by an employee against third person without
any connection whatsoever with his work will not justify the dismissal of
an employee.
Willful breach of trust

A breach of trust is willful if it is done intentionally, knowingly and


purposely, without justifiable excuse, as distinguished from an act done
carelessly, thoughtlessly, heedlessly, or inadvertently.
To constitute a valid cause for dismissal, the breach of trust must be:
(a) Willful;
(b) Related to the performance of the employees functions;
The basic premise for the dismissal on the ground of willful breach of trust
is that the employee concerned holds a position of trust and confidence and
it is the breach of this trust that results in the employers loss of confidence
in the employee.
For dismissal on the ground of loss of confidence to be warranted, there
should be some basis therefor.
The following guidelines for the application of the doctrine of loss of
confidence:
(a) Loss of confidence should not be simulated;
(b) It should not be used as a subterfuge for causes which are improper,
illegal, or unjustified;
(c) It may not be arbitrarily asserted in the face of overwhelming evidence
to the contrary; and
(d) It must be genuine, not a mere afterthought to justify earlier action
taken in bad faith.
Illustrative cases:

(a) Engaging in business competitive with that of the employer;


(b) Rendering services to a business rival;
(c) Using a chit already paid by one customer as a means to pocket the
payment of another customer;
(d) Using double or fictitious requisition slips as a means to withdraw
company materials;
(e) Failure to return service firearm;
(f) Failure to return cash bond for an unreasonable length of time;
(g) Fomenting distrust and discontent in the company;
(h) Pilferage;
(i) Theft of company property;
(j) Qualified Theft;
(k) Violation by a bank cashier of Section 83 of the General Banking Act
regarding loans to bank officers and directors;
(l) Concealment by a bank manager of the true balance of customers
account;
(m) Repeated and numerous infractions by a bank teller in handling of
funds;
(n) Misappropriation of company funds;
(o) Repeated incurrence of cash shortage;
(p) Engaging in an anomalous scheme to cover up past due accounts;

Commission of a Crime
Commission of a crime is a ground for dismissal if it is committed by
an employee against the person of the :
(a) Employer;
(b) Immediate member of his family;
(c) Authorized representative of the employer;
Prior conviction is not required mere commission of the crime is enough
justify the dismissal of the employee.
Analogous Cause
In order to be considered analogous, the offense must have an
element similar to those found in the specific just cause enumerated under
ARTICLE 282 of the labor code. Analogous causes contemplate an act that
is due to the voluntary or willful act of the employee.
Illustrative examples of analogous causes.
(a) Gross Inefficiency is closely related to gross neglect, for both involve
specific acts of or omission on the part of the employee resulting in damage
to the employer or to his business.
(b) Inflicting or attempting to inflict bodily injury on the job site on
company time
(c) Unreasonable behavior, quarrelsome, bossy, and very difficult to deal
with
Other valid causes for dismissal

Apart from the foregoing causes, there are other valid grounds for
dismissal, namely:
(a) Violation of company rules and regulations;
(b) Breach of union security arrangements;
(c) Participation in an illegal strike;
(d) Commission of illegal acts during strike;
(e) Defiance of return to work order in a strike; and
(f) Sexual Harassment;
Violation of Company Rules and Regulations
An employer has the right to promulgate rules and regulations and punish
employees violating the same. An employee cannot refuse to comply with
rules and regulations, policies and procedures laid down by the employer
by the simple expedient of challenging their reasonableness.
The following violations of company rules have been held to constitute
valid cause for dismissal:
(a) Violation of the rule against sleeping while on duty;
(b) Violation of the rule prohibiting drinking liquor on company time in
company premises and engaging in an adulterous act of sexual intercourse
with a married female security guard on company time and in company
premises.
(c) Violation of safety rules;
(d) Violation of rule against absenteeism;

(e) Violation of aircraft parking procedure;


(f) Violation of the rule prohibiting pilots from drinking liquor prior to a
flight;
(g) Violation of the rule requiring that the ticket booth of the theater should
be closed at all times as a precaution against holdups.
Breach of Union Security Arrangement
The recognition of this ground is set forth in Article 248 (e) of the Labor
Code which provides that: nothing in this code or in any other law shall stop
the parties from requiring membership in a recognized collective bargaining agent
as a condition for employment, except those employees who are already
members of another union at the time of the signing of the collective bargaining
agreement.
Limitations
The right to dismiss an employee for breach of union security
arrangement is subject to the following limitations:
(a) Employees who are already members of another union at the time of
the signing of the collective bargaining agreement cannot be dismissed for
refusing to join the contracting union;
(b) Employees who refuse to join the contracting union because of
prohibition imposed by their religion cannot likewise be dismissed.
(c) If it was the contracting union itself who refused to accept the employee
as its member, the union cannot validly ask for the dismissal of the
employee;

(d) If the employee resigns from the contracting union during the freedom
period, the union cannot validly ask for the dismissal of the employee.
Participation in an illegal strike
Any union officer who knowingly participates in an illegal strike may
be declared to have lost his employment status;
Commission of Illegal Acts during a strike
Any union officer or worker who knowingly participates in the
commission of illegal acts during a strike may be declared to have lost his
employment status.
Defiance of return to work order
An assumption or certification order automatically enjoins a strike,
and therefore, the strikers are bound to return to work even if the directive
to return to work is not expressly stated in the order.
Sexual Harassment
Sexual harassment is committed by an employer, employee, manager,
supervisor, or agent of the employer who, having authority, influence, or
moral ascendancy over another, demands, requests or otherwise requires
any sexual favor from another regardless of whether the demand, request is
accepted.
In a work related or employment environment, sexual harassment is
committed:
(a) When sexual favor is made as a condition for hiring, reemployment, or continued employment of an employee; or

(b) When sexual favor is made as a condition for granting favorable


terms, and conditions, promotions, compensation, or privileges;
(c) When refusal to grant the sexual favor results in limiting,
segregating, or classifying the employee which in any way would
discriminate, deprive, or diminish employment opportunities or otherwise
adversely affect said employee;
(d) When sexual advances impair the employees right or privileges
under existing labor laws; or
(e) When the sexual advances result in an intimidating, hostile, or
offensive environment for the employee.
The power emanates from the fact that the superior can remove the
subordinate from his workplace if the latter would refuse his amorous
advances.
Additional Causes for Terminating School Personnel
In addition to the just causes enumerated in the Labor code, the
employment of school personnel, including faculty, may be terminated for
any of the following causes:
(a) Gross inefficiency and incompetence in the performance of his
duties such as, but not necessarily limited to habitual and inexcusable
absences and tardiness from his classes, willful abandonment of
employment or assignment;
(b) Negligence in keeping school or student records, or tampering
with or falsification of the same;

(c) Conviction of a crime, or an attempt on or criminal cat against the


life of any school official, personnel, or student, or upon the property or
interest of the school;
(d) Notoriously undesirable;
(e) Disgraceful or immoral conduct;
(f) Selling of tickets or the collecting of any contributions in any form
or for any purpose or project whatsoever, whether voluntary or otherwise,
from pupils, students, and school personnel except membership fees of
pupils and students in the Red Cross, the Girl Scouts of the Philippines and
the Boy Scouts of the Philippines.
(g) In the event of phasing out, closure or cessation of the educational
program or course or the school itself;
(h) Other analogous to the foregoing as may be provided by the
Secretary of Education, the TESDA, OR in the school rules or in a collective
bargaining agreement.
REPUBLIC ACT NO. 7877
AN ACT DECLARING SEXUAL HARASSMENT UNLAWFUL IN THE
EMPLOYMENT, EDUCATION OR TRAINING ENVIRONMENT, AND
FOR OTHER PURPOSE
Work, Education or Training Related Sexual Harassment Defined
Work, education or training-related sexual harassment is committed
by an employer, employee, manager, supervisor, agent of the employer,
teacher, instructor, professor, coach, trainor, or any other person who,
having authority, influence or moral ascendancy over another in work or

training or education environment, demands request or otherwise requires


any sexual favors from another, regardless of whether the demand, request
or requirement for submission is accepted by the object of said act.
(a) In a work related or employment environment, sexual harassment is
committed when:
(1) The sexual favor is made as a condition in the hiring or in the
employment, re-employment or continued employment of said individual,
or in granting said individual favorable compensation, terms, conditions,
promotions, or privileges, or the refusal to grant the sexual favor results in
limiting, segregating or classifying the employee which in any way would
discriminate, deprive or diminish employment opportunities or otherwise
affect said employee;
(2) The above acts would impair the employees rights and privileges
under existing labor laws; or
(3) The above acts would results in an intimidating hostile, or
offensive environment for the employee;
(b) In an education or training environment, sexual harassment is
committed:
(1) Against one who is under the care, custody or supervision of the
offender;
(2) Against one whose education, training, apprenticeship, or
tutorship is entrusted to the offender;

(3) When the sexual favor is made a condition to giving of a passing


grade, or the granting of honors and scholarships, or the payment of
stipend, allowance, or other benefits, privileges or considerations; or
(4) When the sexual advances result in an intimidating, hostile, or
offensive environment for the trainee or apprentice.
Any person who directs or induces another to commit any act of sexual
harassment as herein defined, or who cooperates in the commission thereof
by another without which it would not have been committed, shall also be
held liable under this act.
Any action arising from the violation of the provisions of this act shall
prescribe in three (3) years.
Article 283 Closure of Establishment and Reduction of Personnel
Economic Justifications for Terminating an Employment
This article specifies the grounds for terminating an employment that
are not attributable to the fault of the employee. Four (4) grounds, mainly
economic in character, are specified, namely:
(1) Installation of labor saving devicesl
(2) Redundancy;
(3) Retrenchment to prevent losses; and
(4) Closing or cessation of operation of the establishment;
Installation of Labor Saving Device

There can be no question as to the right of an employer to use new


labor saving devices with a view to affecting more economy and efficiency
in its method of production.
Redundancy
Redundancy exists where the services of an employee are in excess of
what is reasonably demanded by the actual requirements of the
enterprises. Succinctly put, a position is redundant where it is superfluous,
and superfluity of a position may be the outcome of number of factors,
such as overhiring of workers, decreased volume of business, or dropping
of particular product line or service activity previously manufactured or
undertaken by the enterprise.
Requisites of a Valid Redundancy Program
The following are the requisites of a valid redundancy program:
(a) Good Faith in abolishing the redundant positions;
(b) Fair and reasonable criteria in ascertaining what positions are to
be declared redundant and accordingly abolished;
(c) Written notice served on both the employees and the DOLE at
least one month prior to the intended date of termination;
(d) Payment of separation pay.
Retrenchment
Retrenchment is the reduction of personnel due to actual or
anticipated loss, lack of work, or reduction in the volume of business.

retrenchment to prevent losses means that an employer can adopt


retrenchment measures even before the anticipated losses are actually
sustained.
The four standards of retrenchment
(a) The expected losses should be substantial and not merely de
minimis in extent;
(b) The substantial loss apprehended must be reasonably imminent,
as such imminence can be perceived objectively and in good faith by the
employer;
(c) It must be reasonably necessary and likely to effectively prevent
the expected losses. It must be resorted to as a measure of last resort, after
less drastic means, (e.g. reduction of both management and rank and file
bonuses and salaries,) have been tried and found wanting or insufficient;
(d) The alleged losses already realized and the expected imminent
losses sought to be forestalled, must be proved by sufficient and convincing
evidence.
Requisites of Valid Retrenchment
(1) That the retrenchment is reasonably necessary and likely to
prevent business losses which, if already incurred, are not merely de
minimis but substantial, serious, actual, and real, or if only expected, are
reasonably imminent as perceived objectively and in good faith by the
employer;

(2) That the employer exercises its prerogative to retrench employees


in good faith for the advancement of its interest and not to defeat or
circumvent the employees right to security of tenure;
(3) That the employer used fair and reasonable criteria in ascertaining
who would be dismissed and who would be retained among the
employees, such as:
(i) less preferred status, i.e. whether they are temporary, casual,
regular, or managerial employees;
(ii) efficiency;
(iii) seniority;
(iv) physical fitness;
(v) age;
(vi) financial hardship for certain workers.
(4) That the employer served written notice both to the employee and
the Department of Labor and Employment at least one month prior to the
intended date of retrenchment;
(5) That the employee pays to retrenched employees separation pay.
Closure of Establishment
The closure contemplated in Article 283 of the Labor Code is
permanent closure. If the closure is temporary, the legal effect thereof is
governed by Article 286 of the Labor Code.

Closure contemplated in Article 283 of the Labor Code can be total or


partial. This right can be exercised even if the employer is not suffering
from serious business losses or financial reverses.
Requisites of Valid Closure
There are three (3) requirements necessary for a valid closure or
cessation of business operations, namely:
(1) The closure of business must be bona fide in character;
(2) A written notice must be served upon the employees and the
DOLE at least one (1) month before the intended date of closure; and
(3) The employer must give separation pay to the employees, if the
closure was not due to serious business losses.

Relocation of plant may amount to closure.


Procedural Requirements
To terminate an employment on the ground of introduction of labor
saving devices, redundancy, retrenchment or closure of establishment, the
employer should serve a written notice at least one (1) month in advance to
the:
(1) Affected Employees, and
(2) DOLE.
The notice must be served personally upon the employee concerned.

The purpose of notice is to obviate abrupt and arbitrary dismissal and to


enable the employee to survive while he is looking for another job and give
the DOLE opportunity to ascertain the veracity of the alleged cause for
termination.
Amount of Separation Pay
Employees terminated on the following grounds are entitled to
separation pay of at least one (1) month or the following amount,
whichever is higher:
(a) One (1) month pay for every year of service, in case of
(i) Installation of labor saving device; or
(ii) Redundancy;
(b) One-half (1/2) month for every year of service, in case of:
(i) Retrenchment to prevent losses; or
(ii) Closure of establishment not due to serious business losses.
No separation pay in case of closure of establishment due to serious
business losses.
for every year of service means actual service, it excludes the years when
the employee did not render any service to the employer. In computing the
length of service, a fraction of at least six (6) months shall be considered as
one (1) whole year.
The rationale for giving separation pay is to enable the employee to have
something on which to fall back when he loses his job. This will alleviate

the difficulties which an employee may encounter if he is thrown into the


streets to face the harsh realities of life.
Computation of Separation Pay
In computing the separation pay, the latest salary shall be used,
unless the same was reduced by the employer to defeat the intention of the
Labor Code, in which case, the separation pay shall be based on the salary
rate before its deduction.
In the case of salesman paid on commission basis, the average
commissions earned during the past year of employment should be used as
basis in computing the separation pay.
With regard to seasonal employees, their separation pay should be
computed at one-half of their respective average monthly pay during the
last season multiplied by the number of years they actually rendered
service, provided that they worked for at least six months during a given
year.
Article 284 Disease as Grounds for Termination
The mere fact that an employee is suffering from a disease does not ipso
facto make him a sure candidate for dismissal. There are certain condition
that must be complied with before terminating the services of an employee
on the ground of illness, namely:
(a) That the continued employment of the sick employee is prohibited
by law or is prejudicial to his health or to the health of his co-employees.
(b) That there is a certification from a competent public health
authority that the disease is of such nature or at such a stage that it cannot

be cured within a period of six (6) months even with proper medical
treatment.
If it is certified that the disease or ailment can be cured within the six
month period, the employee should be allowed to take a leave. Upon
restoration of his normal health he should be reinstated to his former
position immediately.
On the other hand, if it is certified that the disease or ailment cannot be
cured within the six month period, the services of the employee may be
terminated, in which case he is entitled to separation pay equivalent to at
least one (1) month salary or to one half (1/2) month salary for every year
of service, whichever is higher.
Article 285 Termination by Employee
(a) An employee may terminate without just cause the employeeemployer relationship by serving a written notice on the employer at
least one (1) month in advance. The employer upon whom no such notice
was served may hold the employee liable for damages.
(b) An employee may put an end to the relationship without serving any
notice on the employer for any of the following just causes:
1. Serious insult by the employer or his representative on the honor
and person of the employee;
2. Inhuman and unbearable treatment accorded the employee by
the employer or his representative.
3. Commission of a crime or offense by the employer or his
representative against the person of the employee or any of the
immediate members of his family;

4. Other causes analogous to any of the foregoing.

BOOK SEVEN
TRANSITORY AND FINAL PROVISION
TITLE I
PENAL PROVISIONS AND LIABILITIES
Article 288 Penalties

Comment
Criminal Offenses under the Labor Code
Not every violation of the Labor Code constitutes a criminal offense.
Only those violations which the Labor code declares to be unlawful or
penal in nature are considered as criminal offenses.
Offenses Penalized under the General Penalty Clause
The following offenses are penalized under the general penalty clause
set forth in Article 288 of the Labor Code.
(q) Unfair labor practices of employers;
(r) Unfair labor practices of labor organizations;

(s) Violation of Article 287 of the Labor Code regarding retirement of


employees;
Offenses with Specific Penalties
(a) Illegal recruitment of workers for local employment
The penalty for this offense is set forth in Article 39 of the Labor
Code.
(b) Demanding/charging fees for handling of employees compensation
cases; or retaining/deducting any amount from the compensation benefits
of an employee in payment for handling the compensation claim.
The penalty for these offenses is set forth in Article 203 of the Labor
code.
(c) Fraud, collusion, falsification, misrepresentation of facts or any other
kind of anomaly in securing employees compensation.
The penalty for these offenses is set forth in Article 207 of the Labor
code.
(d) Declaring a strike or lockout without first having bargained collectively;
declaring a strike or lockout without the necessary strike or lockout vote or
strike vote/ lockout vote report; declaring strike or lockout after the
assumption of jurisdiction or certification of labor dispute for compulsory
arbitration; obstructing, impeding or interfering with by force, violence,
coercion threats or intimidation any peaceful picketing; or aiding or
abetting such obstruction or interference; using or employing a strike
breaker; bringing in, introducing or escorting by a public officer, any
individual who seeks to replace strikers; engaging in violence, coercion or
intimidation during picketing; obstructing the free ingress to or egress

from the employers premises during picketing; or obstructing public


thoroughfares during picketing.
The penalty for these offenses is set forth in Article 272 of the Labor
code.
Illegal Dismissal is not a criminal offense
Illegal dismissal is not an offense within the contemplation of
Article 290 of the Labor Code despite the fact that it is a violation of the
Labor Code. The reason is because illegal dismissal is not among those
which the labor code expressly declares to be unlawful or penal in nature.
Article 289 Who are liable when committed by other than natural person
Criminal liability of officers of juridical entities
Only those who actually committed the unlawful act, authorized the
commission thereof, ratified the same or have conspired in the commission
thereof may be held to be criminally liable.
TITLE II
PRESCRIPTION OF OFFENSES AND CLAIMS
Article 290 Offenses Offenses penalized under this code and the rules
and regulations issued pursuant thereto shall prescribe in three (3) years.
All unfair labor practices arising from Book V shall be filed with
the appropriate agency within one (1) year from accrual of such unfair
labor practice; otherwise, they shall forever be barred.
The three (3) year prescriptive period for offenses penalized by the
labor code should, therefore, be reckoned:

(a) From the day of the commission of the violation, if such commission be
known; or
(b) From discovery of the violation and institution of judicial proceedings
for its investigation and punishment, if the commission of the violation was
not known at the time.

Prescriptive period of criminal action for unfair labor practice


All unfair labor practices arising from Book V shall be filed with the
appropriate agency within one (1) year from accrual of such unfair labor
practice; otherwise, they shall be forever be barred.
It would seem that the one-year will commence from the accrual of
the unfair labor practice. This is not the case. The one-year prescriptive
period for the criminal aspect of unfair labor practice will begin to run only
when a judgment is rendered in the administrative proceedings. This is so
because the prescriptive period does not run during the pendency of the
administrative proceedings. This is expressly provided for in Article 247 of
the labor code.

Prescriptive period of criminal action for illegal recruitment


(a) Illegal recruitment under Article 38 of the labor code, (which is still in
force insofar as recruitment for local employment is concerned), prescribes
in three (3) years, pursuant to the provisions of Article 290 of the labor
code;

(b) Illegal recruitment under R.A. 8042, otherwise known as Migrant


Workers and Overseas Filipinos Act of 1995 which specifically applies to
overseas Filipino workers, prescribes as follows:
(i) Simple Illegal recruitment five (5) years;
(ii) Illegal recruitment involving economic sabotage, i.e. when
committed by a syndicate or in large scale twenty (20) years;

Article 291 Money claims


Prescriptive periods
Money Claims
All money claims arising from employer-employee relations prescribe
in three (3) years from the time the cause of action accrued.
Action for Reinstatement
An action for reinstatement prescribes in four (4) years. The reason is
because the action is predicated upon an injury to the rights of the
plaintiff which under Article 1146 of the civil code must be brought within
four (4) years.
The four year prescriptive period should be reckoned from the date
the employee was unjustly dismissed. The filing of the criminal case against
the employee will not interrupt the running of the prescriptive period for
filing the action for reinstatement because the right to file an action for
illegal dismissal is not dependent upon the outcome of the criminal case.
Action for accounting of union funds

Any action involving the funds of a labor organization prescribes


after three (3) years from the date of submission of the annual financial
report to the DOLE or from the date the same should have been submitted
as required by law whichever comes earlier. Section 5, Rule II, Book VII,
Rules Implementing the labor code expressly provides.
Claims for Employees Compensation
Claims for employees compensation prescribe in three (3) years from
the time the cause of action accrued. This is expressly provided for in
Article 201 of the labor code, as amended by PD No. 1921.
Administrative Action for Unfair labor practices
Unfair labor practices prescribe in one (1) year from accrual of such
unfair labor practice Section 2, Rule II, Book VII, Rules Implementing the
labor code expressly provide.
Recruitment Violations Involving overseas workers or seafarers
Administrative recruitment violations involving land based overseas
workers and seafarers prescribe in three (3) years from the time the cause of
action accrued.
Disciplinary action cases against overseas principal or workers
Disciplinary action cases against foreign principals/employers or
overseas land based workers or seafarers prescribe in three (3) years from
the time the cause of action accrued.
Laches is failure or neglect, for an unreasonable and unexplained length
of time, to do that what which, by exercising due diligence, could or should
have been done earlier; it is negligence or omission to assert a right within a
reasonable time

In labor cases, laches may be applied only upon the most convincing
evidence of deliberate inaction, for the rights of laborers are protected
under the social justice provisions of the constitution.

Article 292 Institution of Money claims


The appropriate entities having jurisdiction over money claims
If there is a demand for reinstatement, money claims of workers
should be filed with the Regional Arbitration Branch of the NLRC,
regardless of the amount involved.
If there is no demand for reinstatement, the following are the rules:
(a) If the aggregate claim of each employee does not exceed P5,
000.00, the money claims should be filed with the Regional Director of the
DOLE;
(b) If the aggregate claim of each employee exceeds P5, 000.00, the
money claim should be filed with the Regional Arbitration Branch of the
NLRC.
Claims for employees compensation should be filed with the SSS (for
employees in the private sector) or with the GSIS (for employees in the
public sector), in accordance with the rules and regulations laid down by
the Employees Compensation Commission.
TITLE III
TRANSITORY AND FINAL PROVISION
Article 293 Application of law enacted prior to this code

Article 294 Secretary of labor to initiate integration of maternity leave benefits


Article 295 Funding of the overseas employment development board and
the national Seamens Board referred to in Articles 17 and 20, respectively,
of this code shall initially be funded out of the unprogrammed fund of the
Department of Labor and National Manpower and Youth Council.
Article 296 Termination of the Workmens Compensation Program
Article 297 Continuation of Insurance Policies
Article 298 Abolition of the court of industrial relations and the NLRC
Article 299 Disposition of pending cases
Article 300 Personnel whose services are terminated
Article 301 Separability provisions
Article 302 Repealing Clause
Done in the city of Manila, this 1 st day of May in the year of our Lord,
nineteen hundred and seventy four

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