B.

GSIS LAW

I. Membership

Section 3 of RA No. 8291 states membership in the GSIS shall be compulsory for all government
employees receiving compensation who have not reached the compulsory retirement age, irrespective
of employment status.

Except: Members of the Armed Forces of the Philippines and the Philippine National Police and
contractuals who have no employer and employee relationship with their agencies.

II. Coverage

GSIS covers all government workers irrespective of their employment status

Except:

Members of the Judiciary and Constitutional Commissions who are covered by separated retirement
laws;

Contractual employees who have no employee-employer relationship with their agencies; and
Uniformed members of the Armed Forces of the Philippines and the Philippine National Police, including
the Bureau of Jail Management and Penology and the Bureau of Fire Protection.

III. Benefits:

All members of the GSIS shall have life insurance, retirement and all other social security protection
provided under RA No. 8291.

Except for the members of the judiciary and constitutional commissions who shall have life insurance
only.

IV. Contribution

The rate of contribution payable by the member and the government agency shall be nine (9) per cent
and 12 per cent, respectively, based on the actual monthly salary of the member.

Special Members include constitutional commissioners, members of the judiciary and those with
equivalent ranks are required by law to remit to the System, three (3) per cent of their regular monthly
compensation for both employees’ and government agency’s share as life insurance premiums to
answer for their life insurance benefits defined under RA 8291.

 It is mandatory for all employers to deduct each month from the monthly salary or
compensation of employees
 The contribution payable by them and remit directly to GSIS
  All employers should also deduct the loan amortizations (consolidated loan, policy loan,
emergency loan) from the fixed monthly compensation of its employees.

V. Effect of Separation from the Service

A member separated from the service shall continue to be a member, and shall be entitled to whatever
benefits he has qualified to in the event of any contingency compensable under this Act.

C. PORTABILITY LAW (RA 7699)

Government retirees who do not meet the required number of years provided under PD 1146 and RA
8291 may still avail themselves of retirement and other benefits.

Under this law, retirees may combine their years of service in the private sector represented by
contributions to the Social Security System (SSS) with their government service and contributions to the
GSIS to satisfy the required years of service under PD 1146 and RA 8291.

However, if retirees have already satisfied the required years of service under the GSIS retirement
option they have chosen, they would not be allowed to incorporate their contributions to the SSS
anymore for availment of additional benefits.

In case of death, disability and old age, the periods of creditable services or contributions to the SSS and
GSIS shall be added to entitle retirees to receive the benefits under either PD 1146 or RA 8291.

If qualified under RA 8291, all the benefits shall apply EXCEPT the cash payment. The Portability Law
provides that only benefits common to both Systems (GSIS and SSS) shall be paid. Cash payment is NOT
included in the benefits provided by the SSS.

D. EMPLOYEE’S COMPENSATION

Distinctions between WAGE and SALARY (Gaa vs.CA, G.R. No. 44169, Dec. 3, 1985)

The term "wages" as distinguished from "salary", applies to the compensation for manual labor, skilled
or unskilled, paid at stated times, and measured by the day, week, month, or season, while "salary"
denotes a higher degree of employment, or a superior grade of services, and implies a position of office:
by contrast, the term wages " indicates considerable pay for a lower and less responsible character of
employment, while "salary" is suggestive of a larger and more important service.

Wages' are the compensation given to a hired person for service, and the same is true of 'salary'. The
words seem to be synonymous, convertible terms, though we believe that use and general acceptation
have given to the word 'salary' a significance somewhat different from the word 'wages' in this: that the
former is understood to relate to position of office, to be the compensation given for official or other
service, as distinguished from 'wages', the compensation for labor.

Coverage
 The wage increases prescribed under Wage Orders apply to all private sector workers and
employees receiving the daily minimum wage rates or those receiving up to a certain daily wage ceiling,
where applicable, regardless of their position, designation, or status of employment, and irrespective of
the method by which their wages are paid, except workers of duly registered Barangay Micro Business
Enterprises (BMBEs) with Certificate of Authority issued by the Office of the Municipal or City Treasurer.

Basis

The basis of the minimum wage rates prescribed by law shall be the normal working hours of
eight (8) hours a day.

Monthly-Paid Employees and Daily-Paid Employees

Monthly-paid employees are those who are paid every day of the month, including unworked
rest days, special days, and regular holidays. Factor 365 days in a year is used in determining the
equivalent monthly salary of monthly-paid employees.

Daily-paid employees are those who are paid on the days they actually worked and on unworked
regular holidays.

The Kasambahay Law

The minimum wage of Kasambahay shall not be less than the following:

a) Two thousand five hundred pesos (P2,500.00) a month for those employed in the National
Capital Region (NCR);

b) Two thousand pesos (P2,000.00) a month for those employed in chartered cities and first
class municipalities ; and

c) One thousand five hundred pesos (P1,500.00) a month for those employed in other
municipalities.

After one year from the effectivity of the Batas Kasambahay and periodically thereafter, the
Regional Tripartite Wages and Productivity Boards (RTWPBs) shall review and if proper, determine and
adjust the minimum wage rates of Kasambahay. The RTWPBs shall conduct consultations/hearings with
stakeholders prior to the issuance of a wage order.

Rights and Benefits of Kasambahay:

1. Minimum wage;

2. Other mandatory benefits, such as the daily and weekly rest periods;

3. Service Incentive Leave;

4. 13th month pay;

5. Freedom from employers’ interference in the disposal of wages;

6. Coverage under the SSS, PhilHealth and Pag-IBIG laws;

7. Standard of treatment;
 8. Board, lodging and medical attendance;

9. Right to privacy;

10. Access to outside communication;

11. Access to education and training;

12. Right to form, join, or assist labor organization;

13. Right to be provided a copy of the employment contract;

14. Right to certificate of employment;

15. Right to terminate the employment; and

16. Right to exercise their own religious beliefs and cultural practices

Effect of Reduction of Workdays on Wages

In situations where the employer has to reduce the number of regular working days to prevent
serious losses, such as when there is a substantial slump in the demand for his/her goods or services or
when there is lack of raw materials, the employer may deduct the wages corresponding to the days
taken off from the workweek, consistent with the principle of “no work, no pay.” This is without
prejudice to an agreement or company policy which provides otherwise.

Minimum Wage of Workers Paid by Results

All workers paid by results, including homeworkers and those who are paid on piece rate, takay,
pakyaw or task basis, shall receive not less than the prescribed minimum wage rates under the Regional
Wage Orders for normal working hours which shall not exceed eight (8) hours a day, or a proportion
thereof. The wage rates of workers who are paid by results may be determined through time and
motion studies or consultation with representatives of employers’ and workers’ organizations in a
tripartite called by the DOLE Secretary.

Minimum Wage of Apprentices, Learners, and Persons with disability

Wage of apprentices and learners shall in no case be less than seventy-five (75%) percent of the
applicable minimum wage rates. Apprentices and learners are those who are covered by apprenticeship
and learnership agreements duly approved by the Technical Education and Skills Development Authority
(TESDA). A qualified disabled employee shall be subject to the same terms and conditions of
employment and the same compensation, privileges, benefits, fringe benefits or allowances as a
qualified able bodied person.

Coverage from Income Tax of Minimum Wage Earners

Effective July 6, 2008, minimum wage earners (MWEs) are exempt from income tax. x The
following income of MWEs shall also be exempt from income tax: 1. Statutory Minimum Wage (SMW)
inclusive of the COLA; 2. Holiday pay; 3. Overtime pay; 4. Night shift differential pay; and 5. Hazard pay.
Holiday pay refers to the payment of the regular daily wage for any unworked regular holiday.

This benefit applies to all employees except:

1. Government employees, whether employed by the National Government or any of its political
subdivisions, including those employed in government-owned and/or controlled corporations
with original charters or created under special laws;

2. Those of retail and service establishments regularly employing less than ten (10) workers;

3. Kasambahay and persons in the personal service of another;

4. Managerial employees, if they meet all of the following conditions:

4.1. Their primary duty is to manage the establishment in which they are employed or of
a department or subdivision thereof;

4.2. They customarily and regularly direct the work of two or more employees therein;
and

4.3. They have the authority to hire or fire other employees of lower rank; or their
suggestions and recommendations as to hiring, firing, and promotion, or any other
change of status of other employees are given particular weight.

5. Officers or members of a managerial staff, if they perform the following duties and
responsibilities:

5.1. Primarily perform work directly related to management policies of their employer;
5.2. Customarily and regularly exercise discretion and independent judgment;

5.3. (a) Regularly and directly assist a proprietor or managerial employee in the
management of the establishment or subdivision thereof in which he or she is
employed; or (b) execute, under general supervision, work along specialized or technical
lines requiring special training, experience, or knowledge; or (c) execute, under general
supervision, special assignments and tasks; and

5.4. Do not devote more than twenty percent (20%) of their hours worked in a
workweek to activities which are not directly and closely related to the performance of
the work described in paragraphs 5.1, 5.2, and 5.3 above.

6. Field personnel and other employees whose time and performance is unsupervised by the
employer, including those who are engaged on task or contract basis, purely commission basis
or those who are paid a fixed amount for performing work irrespective of the time consumed in
the performance thereof.

Regular Holidays

Every employee covered by the Holiday Pay Rule is entitled to the minimum wage rate (daily basic wage
and COLA). This means that the employee is entitled to at least 100% of his/her minimum wage rate
even if he/she did not report for work, provided he/she is present or is on leave of absence with pay on
the work day immediately preceding the holiday. Work performed on that day merits at least twice
(200%) the wage rate of the employee.

Where the holiday falls on the scheduled rest day of the employee, work performed on said day merits
at least an additional 30% of the employee’s regular holiday rate of 200% or a total of at least 260%.

When a regular holiday falls on a Sunday, the following Monday shall not be a holiday, unless a
proclamation is issued declaring it a special day.

Unless otherwise modified by law, order, or proclamation, the following are the twelve (12) regular
holidays in a year under Executive Order No. 292, as amended by Republic Act 9 849:

New Year’s Day January 1

Maundy Thursday Movable Date
Good Friday Movable Date
Araw ng Kagitingan Monday nearest April 9
Labor Day Monday nearest May 1
Independence Day Monday nearest June 12
National Heroes’ Day Last Monday of August
Eidl Fitr Movable Date
Eidl Adha Movable Date
Bonifacio Day Monday nearest November 30
Christmas Day December 25
Rizal Day Monday nearest December 30

When Araw ng Kagitingan falls on the same day as Maundy Thursday or Good Friday, a covered
employee is entitled to at least two hundred percent (200%) of his/her daily wage even if said day is
unworked.

Where the employee is required to work on that day, he/she is entitled to an additional 100% of the
daily wage.

Absences

1. All covered employees shall be entitled to holiday pay when they are on leave of absence with
pay on the workday immediately preceding the regular holiday. Employees who are on leave of
absence without pay on the day immediately preceding a regular holiday may not be paid the
required holiday pay if they do not work on such regular holiday.

2. Employers shall grant the same percentage of the holiday pay as the benefit granted by
competent authority in the form of employee’s compensation or social security payment,
whichever is higher, if the employees are not reporting for work while on such leave benefits.

3. Where the day immediately preceding the holiday is a non-work day in the establishment or the
scheduled rest day of the employee, he/she shall not be deemed to be on leave of absence on
that day, in which case he/she shall be entitled to the holiday pay if he/she worked on the day
immediately preceding the nonwork day or rest day.
Successive Regular Holidays

Where there are two (2) successive regular holidays, like Maundy Thursday and Good Friday, an
employee may not be paid for both holidays if he/she absents himself/herself from work on the day
immediately preceding the first holiday, unless he/she works on the first holiday, in which case he/she is
entitled to his/her holiday pay on the second holiday.

Premium pay refers to the additional compensation for work performed within eight (8) hours on non-
work days, such as rest days and special days.

Coverage

This benefit applies to all employees except:

1. Government employees, whether employed by the National Government or any of its political
subdivisions, including those employed in government-owned and/or controlled corporations with
original charters or created under special laws;

2. Managerial employees, if they meet all of the following conditions:

2.1. Their primary duty is to manage the establishment in which they are employed or of a
department or subdivision thereof;

2.2. They customarily and regularly direct the work of two or more employees therein;

2.3. They have the authority to hire or fire other employees of lower rank; or their suggestions
and recommendations as to hiring, firing, and promotion, or any other change of status of other
employees are given particular weight.

3. Officers or members of a managerial staff, if they perform the following duties and responsibilities:

3.1. Primarily perform work directly related to management policies of their employer;

3.2. Customarily and regularly exercise discretion and independent judgment;

3.3. (a) Regularly and directly assist a proprietor or managerial employee in the management of
the establishment or subdivision thereof in which he or she is employed; or (b) execute, under
general supervision, work along specialized or technical lines requiring special training,
experience, or knowledge; or (c) execute, under general supervision, special assignments and
tasks; and

3.4. Do not devote more than twenty percent (20%) of their hours worked in a workweek to
activities which are not directly and closely related to the performance of the work described in
paragraphs 3.1, 3.2, and 3.3 above.

4. Kasambahay and persons in the personal service of another;

5. Workers who are paid by results, including those who are paid on piece rate, takay, pakyaw, or task
basis, and other nontime work, if their output rates are in accordance with the standards prescribed in
the regulations, or where such rates have been fixed by the Secretary of Labor and Employment; and
6. Field personnel, if they regularly perform their duties away from the principal or branch office or
place of business of the employer and whose actual hours of work in the field cannot be determined
with reasonable certainty.

Overtime pay refers to the additional compensation for work performed beyond eight (8) hours a day.

Coverage

Same as those covered under Premium Pay

Overtime Pay Rates

The COLA shall not be included in the computation of overtime pay.

The minimum overtime pay rates vary according to the day the overtime work is performed, as follows:
1. For work in excess of eight (8) hours performed on ordinary working days: Plus 25% of the hourly rate.

2. For work in excess of eight (8) hours performed on a scheduled rest day or a special day: Plus 30% of
the hourly rate on said days.

3. For work in excess of eight (8) hours performed on a special day which falls on a scheduled rest day:
Plus 30% of the hourly rate on said days.

4. For work in excess of eight (8) hours performed on a regular holiday: Plus 30% of the hourly rate on
said days.

5. For work in excess of eight (8) hours performed on a regular holiday which falls on a scheduled rest
day: Plus 30% of the hourly rate on said days.

Stipulated Overtime Rates

Generally, the premium pay for work performed on rest days, special days, or regular holidays is
included as part of the regular rate of the employee in the computation of overtime pay for overtime
work rendered on said days, especially if the employer pays only the minimum overtime rates
prescribed by law.

The employees and employer, however, may stipulate in their collective agreement the payment for
overtime work at rates higher than those provided by law.

Night Shift Differential (NSD) refers to the additional compensation of ten percent (10%) of an
employee’s regular wage for each hour of work performed between 10 p.m. and 6 a.m.

Coverage

This benefit applies to all employees except:

1. Government employees, whether employed by the National Government or any of its political
subdivisions, including those employed in government-owned and/or controlled corporations with
original charters or created under special laws;

2. Those of retail and service establishments regularly employing not more than five (5) workers;

3. Kasambahay and persons in the personal service of another;

4. Managerial employees, if they meet all of the following conditions:

4.1. Their primary duty is to manage the establishment in which they are employed or of a
department or subdivision thereof;

4.2. They customarily and regularly direct the work of two or more employees therein; and

4.3. They have the authority to hire or fire other employees of lower rank; or their suggestions
and recommendations as to hiring, firing, and promotion, or any other change of status o f other
employees are given particular weight.

5. Officers or members of a managerial staff, if they perform the following duties and responsibilities:

5.1. Primarily perform work directly related to management policies of their employer;

5.2. Customarily and regularly exercise discretion and independent judgment;

5.3. (a) Regularly and directly assist a proprietor or managerial employee in the management of
the establishment or subdivision thereof in which he or she is employed; or (b) execute, under
general supervision, work along specialized or technical lines requiring special training,
experience, or knowledge; or (c) execute, under general supervision, special assignments and
tasks; and

5.4. Do not devote more than twenty percent (20%) of their hours worked in a workweek to
activities which are not directly and closely related to the performance of the work described in
paragraphs 5.1, 5.2, and 5.3 above;

6. Field personnel and those whose time and performance are unsupervised by the employer.
 VII. LABOR RELATIONS
A. RIGHT TO SELF ORGANIZATION

Right to Self Organization – includes the right to form, join and assist labor organizations
and to engage in lawful and concerted activities for collective bargaining or for their mutual
aid and protection. (Art. 246)

Who are ENTITLED to join a labor organization for COLLECTIVE BARGAINING?

All persons employed in:
1. Commercial, industrial, and agricultural enterprises; and
2. Religious, charitable, medical or educational institutions whether operating for profit or
not. (Art. 243)

Who are ENTITLED to join a labor organization for MUTUAL AID AND PROTECTION?

1. Ambulant workers
2. Intermittent workers
3. Itinerant workers
4. Self‐employed people
5. Rural workers
6. Those without any definite employers

Who are NOT allowed to join a labor organization?

1. High level or managerial government employees

2. Employees of international organizations with immunities
3. Managerial Employees
4. Members of the AFP, police officers, policemen, firemen, and jail guards
5. Confidential employees
6. Employees of cooperatives who are its members
7. Non‐employees
8. Government employees, including GOCC’s with original charters
9. Aliens without a valid working permit
10. Aliens with working permits but are nationals of a country which do not allow Filipinos
to exercise their right of self‐ organization

Doctrine of Necessary Implication

The doctrine states that what is implied in a statute is as much a part thereof as that
which is expressed. Every statute is understood, by implication, to contain all such
provisions as may be necessary to effectuate its object and purpose, or to make effective
rights, powers, privileges or jurisdiction which it grants, including all such collateral and
subsidiary consequences as may be fairly and logically inferred from its terms.
Commingling / Mixture of membership

Supervisory employees and security guards shall not be eligible for membership in a
labor organization of the rank-and-file employees but may join, assist or form separate labor
organizations of their own; Provided, that those supervisory employees who are included in
an existing rank-and-file bargaining unit, upon the effectivity of Republic Act No. 6715, shall
remain in that unit

THUS, one labor organization CANNOT be composed of both rank-and-file and

supervisory employees.

It cannot, for any guise or purpose, be a legitimate labor organization. Not being one, an
organization which carries a mixture of rank-and-file and supervisory employees cannot
possess any of the rights of a legitimate labor organization, including the right to file a
petition for certification election for the purpose of collective bargaining.

Rights and Conditions of Membership

The following are the rights of union members:

1. Right against arbitrary or excessive fees, fines, and forfeitures;
2. Right to full and detailed reports on financial transactions;
3. Right to directly elect union officers, both local and national, by secret ballot;
4. Right to take part in determining and voting upon major questions of policy such as
declaring a strike;
5. Right against admission of subversives;
6. Right against appointment or election of certain persons;
7. Right against unauthorized collection of fees or disbursement of funds;
8. Right to demand receipt for payment of fees, dues, or other contributions;
9. Right against unauthorized disbursement of union funds;
10. Right against payment of unauthorized compensation to union officers;
11. Right of inspection of books of accounts and other financial records of the union;
12. Right against unreasonable assessments or other extraordinary fees;
13. Right to be informed on matters affecting the constitution and by-laws, CBA, prevailing
labor relations system, and rights and obligations under existing laws;
14. Right to run for union office; and
15. Right to due process on matters of discipline.

Qualifications for an employee to run for union office:

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

2. He must be a member of the union in good standing; and
3. He must not have been convicted of a crime involving moral turpitude, unless he had
been given an absolute pardon for such offense.

Disqualifications of union officers:

1. A union member convicted of a crime involving moral turpitude

 2. A member who belongs to a subversive organization
3. A member who is engaged directly or indirectly in any subversive activity

Nature of relationship

The Principle of Agency applies to a local chapter. The mother federation has the status
of an agent while the local union or local chapter remains the basic unit of the
association free to serve the common interest of all its members subject only to the
restraints imposed by the constitution and by-laws of the association.

The Affiliate Union does not owe its existence to the federation. It is a separate and
distinct voluntary association owing its creation to the will of its members. It does not
give the federation the license to act independently of the affiliate union. It only gives
rise to a contract of agency where the former acts in representation of the latter.

a. Disaffiliation

The right of the affiliate union to disaffiliate from its mother federation can
be invoked consistent with the freedom of association guaranteed in the
Constitution.

Disaffiliation is not an act of disloyalty. The affiliate union does not owe its
existence to the federation or the national union with which it is affiliated.

Once the local chapter disaffiliates from the federation which created it. It
ceases to be entitled to the rights and privileges granted to a legitimate
labor organization. Hence, it cannot, by itself, file a petition for certification
election. However, the disaffiliation of an independently-registered union
does not affect its legitimate status as a legitimate labor organization.

b. Substitutionary Doctrine

The employees cannot revoke the validity executed CBA with their employer
by the simple expedient of changing their bargaining agent. The new
bargaining agent must respect the CBA. However, they may negotiate the
shortening of its period (Benguet Consolidated, Inc. VS. BCI Employees &
Workers Union-PAFLU, Philippine Association of Free Labor Unions, Cipriano
Cid and Juanito Garcia G.R. No. L-24711,; Apr 30, 1968)

B. Bargaining Unit

Bargaining Unit - it is a group of employees of a given employer, comprised of all or less

than all of the entire body of the employees which the collective interest of all the
employees consistent with equity to the employer, indicate to be best suited to serve the
 reciprocal rights and duties of the parties under the collective bargaining provisions of the
law.

How do we determine the appropriateness of a bargaining unit?

1. Globe Doctrine – by the will of the employees

2. Substantial Mutual Interest Rule – by the similarity of the employees’ interests (e.g the
employees’ job description, compensation, benefits, working conditions, and the like)
3. Prior collective bargaining history
4. Similarity of employment status

NOTE: While the existence of a bargaining history is a factor that may be reckoned with in
determining the appropriate bargaining unit, it is not decisive or conclusive. Other factors must
be considered. The test of grouping is community or mutuality of interests. This is so because the
basic test of an asserted bargaining unit’s acceptability is whether it is fundamentally the
combination which will best assure to all employees the exercise of their collective bargaining
rights.

C. Bargaining Representative

Bargaining Representative - a legitimate labor organization whether or not employed by the

employer.

Methods of Determining the Bargaining Representative

1. Voluntary recognition
2. Certification Election
3. Consent election

VOLUNTARY RECOGNITION – A legitimate labor union is recognized by the employer as the

exclusive bargaining representative or agent in a bargaining unit, reported with the Regional
Office.

The notice of Voluntary Recognition shall be accompanied by the following:

1. Joint statement under oath of voluntary recognition

2. Certificate of posting of joint statement for 15 consecutive days in at least 2
conspicuous places in the establishment or place of business of the bargaining unit
3. Certificate of posting
4. Approximate number of employees in the bargaining unit and the names of those
who supported the recognition
5. Statement that the labor union is the only legitimate labor organization operating
within the bargaining unit.
  The Regional Office, through the Labor Relations Division shall, within 10 days
from receipt of the notice, record the fact of voluntary recognition in its roster
of legitimate labor unions and notify the labor union concerned.

Requisites of voluntary recognition:

1. The establishment is unorganized
NOTE: Voluntary recognition is not possible in an organized establishment.

2. Only one union must ask for recognition.

NOTE: If there 2 or more unions asking to be recognized, the employer cannot
recognize any of them; the rivalry must be resolved through an election.

3. The union voluntarily recognized should be the majority union

NOTE: The members of the bargaining unit should not have objected to the
projected recognition.

 If no objection is raised, the recognition will proceed, the DOLE will be

informed and CBA recognition will commence.
 If objection is raised, the recognition is barred and a certification election or
consent election will have to take place.

Where and where should the notice of voluntary recognition be filed?

Within 30 days from such recognition, the employer shall submit a notice of voluntary
recognition with the Regional Office which issued the recognized labor union’s
certificate of registration or certificate of creation of a chartered local.

What are the effects of recognition?

1. The labor union shall enjoy the rights, privileges and obligations of an existing
bargaining agent of all the employees in the bargaining unit.
2. The recognition shall also bar the filing of a petition for certification election by any
labor organization for a period of 1 year from the date of entry of voluntary
recognition.

CERTIFICATION ELECTION - It is the process of determining the worker’s choice whether

they want a union to represent them for collective bargaining or if they want no union
to represent them at all. If they choose the former, they will vote which among the
contending unions will be the sole and exclusive bargaining representative of the
employees in the appropriate bargaining unit.

NOTE: If “no union” wins, the company or the bargaining unit remains un‐unionized for
at least 12 months, otherwise known as the 12‐month bar. A petition for a certification
election may be filed again after the lapse of the 12 months.

Who may file for a petition for certification election?

1. Any legitimate labor organization

2. A national union or federation which has already issued a charter certificate to its
local chapter participating in the certification election

3. A local chapter which has been issued a charter certificate

4. An employer only when requested to bargain collectively in a bargaining unit where

no registered CBA exists.

When and where should the petition be filed?

The time depends on whether the Certified Bargaining Unit has a CBA.

If it has no CBA, the petition may be filed anytime outside the 12‐month bar
(certification year).

If it has CBA, it can be filed only within the last 60 days of the 5th year of the CBA.

In both instances, the petition shall be filed with the Regional Office which issued the
petitioning union's certificate of registration/certificate of creation of chartered local.

Direct Certification is the process whereby the Med‐Arbiter directly certifies a labor
organization of an appropriate bargaining unit of a company after a showing that such
petition is supported by at least a majority of the employees in the bargaining unit.

Is direct certification allowed?

No. Even in a case where a union has filed a petition for certification election, the mere
fact that there was no opposition does not warrant a direct certification. More so in a
case when the required proof is not presented in an appropriate proceeding and the
basis of the direct certification is the union’s self‐serving assertion that it enjoys the
support of the majority of the employees, without subjecting such assertion to the test
of competing claims. (Samahang Manggagawa sa Permex v. Secretary, G.R. No. 107792,
Mar. 2, 1998)

Grounds for DENYING a PCE:

1. The petitioning union or federation is not listed in the DOLE’s registry of legitimate
labor unions or that its registration certificate legal personality has been revoked or
cancelled with finality

2. Failure of a local chapter or national union/federation to submit a duly issued charter

certificate upon filing of the petition

3. Contract Bar Rule - The petition was filed before or after the freedom period of a duly
registered CBA; provided that the 60‐day period based on the original CBA shall not be
affected by any amendment, extension or renewal of the CBA.

NOTE: The 60‐day period immediately prior to its expiration is called the
freedom period. No amendment, alteration, or termination of any of the provisions of
the CBA, except to give notice of one party’s intention to amend, alter and terminate
the provisions, can be made within the freedom period.

Requisites in invoking the contract bar rule:

The existing CBA must:

1. Be in writing and signed by all contracting parties

2. Contain the terms and conditions of employment

3. Cover employees in an appropriate bargaining unit

4. Be for a reasonable period or duration

5. Be ratified

6. Be registered with the BLR; and

7. The violation of the contract bar rule or the existence of a duly registered CBA

Exceptions to the Contract Bar Rule:

1. The CBA is unregistered

2. The CBA is inadequate and incomplete

3. The CBA was hastily entered into (Doctrine of premature extension)

4. Withdrawal of affiliation from the contracting union brought about by schism

or mass disaffiliation

5. Contract where the identity of the representative is in doubt

6. CBA entered into between the employer and the union during the pendency
of a petition for CE

7. CBA conducted between the employer and the union is not bar to a
certification election filed by another union and said CBA can be renegotiated at
the option of the new bargaining agent

8. A CBA registered with falsified supporting documents

9. CBA was concluded in violation of an order enjoining the parties from

entering into a CBA until the issue of representation is resolved

10. Petition is filed during the 60‐day freedom period

4. 12 month bar rule/ certification year bar rule - The petition was filed within 1 year
from entry of voluntary recognition or within the same period from a valid certification,
consent or run‐off election and no appeal on the results of the certification, consent or
run‐off election is pending
 5. Negotiation bar rule - A duly certified union has commenced and sustained
negotiations with the employer in accordance with Art. 250 of the Labor Code within
the 1‐year period.

6. Deadlock bar rule - There exists a bargaining deadlock which had been submitted to
conciliation or arbitration or had become the subject of a valid notice of strike or
lockout to which an incumbent or certified bargaining agent is a party.

Deadlock - arises when there is an impasse, which presupposes reasonable

effort at good faith bargaining which, despite noble intentions, did not conclude
in an agreement between the parties.

7. In case of an organized establishment, failure to submit the 25% support requirement

for the filing of the PCE.

8. Non‐appearance of the petitioner for 2 consecutive scheduled conferences before the

med‐arbiter despite due notice, and

9. Absence of EER between all the members of the petitioning union and the owner of
the establishment where the proposed bargaining unit is sought to be represented.

D. Rights of Labor Organization

I. Rights of legitimate labor organizations (Art. 242)

a. Right to act as the representative of its members for collective bargaining;

b. Right to be certified as the exclusive representative of all the employees in an appropriate

bargaining unit for purposes of collective bargaining;

c. Right to be furnished by the employer, upon written request, with its annual audited financial
statements, balance sheet and the profit and loss statement

o The labor organization hall be furnished with the documents within thirty (30) calendar
days from the date of receipt of the request, after the 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

d. Right to own property, real or personal, for the use and benefit of the labor organization and
its members;

e. Right to sue and be sued in its registered name

 f. Right to undertake all other activities designed to benefit the organization and its members,
including cooperative, housing, welfare and other projects not contrary to law.

g. Right to tax exemption

The income and the properties of legitimate labor organizations, including grants,
endowments, gifts, donations and contributions they may receive from fraternal and similar
organizations, local or foreign, which are actually, directly and exclusively used for their lawful
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.

II. Check Off, Special Assessment, and Dues

A check-off is a method of deducting from an employee’s pay at prescribed period, the amounts
due the union for fees, fines, or assessments. The right of a union to collect union dues is
recognized under Article 277(a).

Check-off of Agency Fee

This is the amount, equivalent to union dues, which a non-union member pays to the union
because he benefits from the CBA negotiated by the union. In negotiating the CBA the union
served as the employee’s agent. Check-off of agency fee is allowed under Art. 248(e).

Special Assessment (Art. 241)

Requisites of the special assessment for Union's incidental expenses, attorney's fees and
representation expenses:
1) authorization by a written resolution of the majority of all the members at the general
membership meeting duly called for the purpose;
(2) secretary's record of the minutes of the meeting; and
(3) individual written authorization for check-off duly signed by the employee concerned.

Dues are defined as payments to meet the union’s general and current obligations.
o The payment must be regular, periodic, and uniform.
o Payments used for a special purpose, especially if required only for a limited time, are
regarded as assessment.

E. Collective Bargaining

a. Duty to Bargain collectively

It is the obligation to meet and convene promptly and expeditiously in good faith for t
he 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 incor
porating such agreements if requested by either party but such does not compel any
party to agree to a proposal or to make any concession.
 b. Collective Bargaining Agreement (CBA)
It is a contract executed upon request of either the employer or the exclusive bargainin
g representative of the employees incorporating the agreement reached after negotiati
ons with respect to wages, hours of work, terms and conditions of employment,
including proposals for adjusting any grievance or questions under the agreement.

Mandatory Provisions of CBA

1. Grievance machinery
2. Voluntary arbitration
3. Wages
4. Hours of work
5. Family planning
6. Rates of pay
7. Mutual observance clause

Economic provisions of a CBA

1. Wages
2. Family planning
3. Effectivity of the agreement
4. Other terms and conditions of employment

Non‐economic provisions of a CBA

1. Coverage of the bargaining unit
2. Union security clauses
3. Management prerogatives
4. Rights and responsibilities of employees
5. Grievance machinery and voluntary arbitration
6. No strike – no lock out provision

Duration of CBA
1. Representation: 5 years
2. All other provisions: 3 years after the execution of the CBA

F. Unfair Labor Practice

Unfair Labor Practice - it is an act of an employer or union (or their agents) which violate the
right of the worker’s to self-organization.

 Any act that does not fall within the enumerations provided for by law is NOT ULP.
 General Rule: ULP only exists if there is EER.

Exception: When it is committed against a non-employee such as in “yellow dog

contract”
 ULP can only be committed against an employee who exercises or has exercised his right
to self organization.
 The UNION has the BURDEN of PROOF to present SUBSTANTIAL EVIDENCE to support
allegations of ULP committed by the employer
 (1) Officers and agents of corporations, associations or partnerships and (2) officers,
members of governing boards, representatives or agents or members of labor
associations or organizations who have actually participated in, authorized, or ratified
ULP shall be held CRIMINALLY LIABLE.
 An action for ULP shall be filed within 1 year from the accrual of the ULP.

I. ULP by Employer (Art. 254)

1. Interference
 It is both restraint and coercion
 It may be economic, physical, or psychological

2. Yellow dog condition

 An unfair labor practice committed by an employer against an applicant.
 The employer requires, as a condition of employment, that the
applicant:
o is not a member of a union
o if a member, he will resign
o he will not join a labor union.
 It may be committed in the absence of EER

3. Contracting out
 It is ULP for an employer to contract out services of functions being
performed by union members when such will interfere with,
restrain, or coerce employees in the exercise of their right to self
organization.

4. Company unionism
 Also called CAPTIVE UNIONISM
 Some forms of company domination are:
o Initiation of the company union idea
o Financial support to the union
o Employer encouragement and assistance
o Supervisory assistance

5. Discrimination for or against union membership

 Unequal treatment of union and non-union members may be
manifested in the following instances:
o Dismissal or lay-off
o Closure or Shutdown
 o Rehiring
o Transfer
o Retrenchment

6. Discrimination because of testimony

7. Violation of duty to bargain

 The duty to bargain collectively means the performance if a mutual

obligation to meet and convene promptly and expeditiously in good
faith to negotiate with respect to wages, hours of work, and all
other terms and conditions of employment.

RUN-AWAY SHOP – is a form of ULP committed by the management

which usually takes place by effecting the transfer of ownership, the
plant itself, or its equipment and machines by temporarily closing its
business purposely to bust the union or evade payment of its
legitimate obligations.

8. Paid negotiation
 It is the act of the employer to pay negotiation or attorney’s fees to
the union or its officers or agents as part of the settlement of an
issue in collective bargaining or any other dispute.

9. Gross violation of CBA

 There must be a flagrant and/or malicious refusal to comply with
the economic provision of the CBA.

II. ULP by Labor Organizations (Art. 255)

1. To restrain or coerce employees in the exercise of their rights to self‐

organization.
2. To cause or attempt to cause an employer
to discriminate against an employee, including discrimination against an emp
loyee with respect to whom membership in such organization has been de
nied or
to terminate an employees on any ground other than the usual terms and co
nditions under which membership or continuation of membership is made
available to other members
3. To violate the duty, or refuse to bargain collectively with the employer, provide
d it is the representative of the employees
4. To cause or attempt to cause an employer to pay or deliver or agree to pay or d
eliver any money or other things of value, in the nature of an exaction, for s
 ervices which are not performed or not to be performed, including the dem
and for fee for union negotiations
5. To ask for or accept negotiations or attorney’s fees from employers as part of th
e settlement of any issue in collective bargaining or any other dispute or
6. To violate a CBA.