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Labor relations and labor standards laws are not mutually exclusive.
They are complementary to, and closely interlinked with, each other. For
instance, the laws on collective bargaining, strikes and lockouts which are
covered by labor relations law necessarily relate to the laws on working
conditions found in Book III.
SEPARATION PAY
What are the separation pays expressly provided under the
Labor Code?
The Labor Code prescribes the payment of separation pay only in the
following four (4) situations:
(1) When termination is due to authorized causes:
(1) installation of labor-saving devices;
(2) redundancy;
(3) retrenchment; or
(4) closing or cessation of business operations; and
(5) disease.
Illustrative cases.
Yrasuegui v. Philippine Airlines, Inc., where the dismissal of
petitioner (an international flight attendant) due to his obesity was held
valid as an analogous cause under Article 282(e) of the Labor Code. The
Supreme Court, however, as an act of
social justice and for reason of equity, awarded him separation pay
equivalent to one-half (1/2) month’s pay for every year of service, including
his regular allowances. The Court observed that his dismissal occasioned by
his failure to meet the weight standards of his employer was not for serious
misconduct and does not reflect on his moral character.
TERMINATION OF EMPLOYMENT
A. EMPLOYER-EMPLOYEE RELATIONSHIP
1. Four-Fold Test
What is the 4-fold test of existence of employer-employee
relationship?
1. Selection and engagement of the employee;
2. Payment of wages or salaries;
3. Exercise of the power of dismissal; or
4. Exercise of the power to control the employee’s conduct.
2. KINDS OF EMPLOYMENT
a. PROBATIONARY EMPLOYMENT
How is probationary period, say, of 6 months computed?
The 6-month probationary period should be reckoned “from the date of
appointment up to the same calendar date of the 6th month
following.”
May probationary period be extended?
Yes, but only upon the mutual agreement by the employer and the
probationary employee.
What is the effect of allowing a probationary employee to work
beyond the probationary period?
He is considered a regular employee.
c. PROJECT EMPLOYMENT
What is the litmus test of project employment?
The litmus test of project employment, as distinguished from regular
employment, is whether or not the project employees were assigned to
carry out a specific project or undertaking, the duration and scope
of which were specified at the time the employees were engaged
for that project.
A true project employee should be assigned to a project which begins and
ends at determined or determinable times and be informed thereof at the
time of hiring.
d. SEASONAL EMPLOYMENT
Can a seasonal employee become a regular seasonal employee?
Yes, provided the following requisites are complied with:
1. The seasonal employee should perform work or services that are
seasonal in nature; and
2. They must have also been employed for more than one (1) season.
Can a regular seasonal worker file an illegal dismissal case in
the event he is not hired for the next season?
Yes. The reason is, being a regular seasonal employee, the employer should
re-hire him in the next season. During off-season, his employment is
deemed suspended and he is considered as being on leave of absence
without pay.
e. CASUAL EMPLOYMENT
What is the most important distinguishing feature of casual
employment?
The most important distinction is that the work or job for which he was
hired is merely incidental to the principal business of the employer and
f. FIXED-TERM EMPLOYMENT
3. JOB CONTRACTING
(k) "Solidary liability" refers to the (k) "Solidary liability" — refers to the
liability of the principal, pursuant to the liability of the principal, pursuant to the
provision of Article 109 of the Labor provision of Article 109 of the Labor Code,
Code, as direct employer together with as direct employer together with the
the contractor for any violation of any contractor for any violation of any
provision of the Labor Code. provision of the Labor Code.
It also refers to the liability of the
principal, in the same manner and It also refers to the liability of the
extent that he/she is liable to his/her principal, in the same manner and extent
direct employees, to the extent of the that he/she is liable to his/her direct
work performed under the contract employees, to the extent of the work
when the contractor fails to pay the performed under the contract when the
wages of his/her employees, as contractor fails to pay the waged of
provided in Article 106 of the Labor his/her employees, as provided in
Code, as amended. Article 106 of the Labor Code, as
amended.
(l) ”Substantial capital" refers to (l) "Substantial capital" — refers to
paid-up capital stocks/shares of at paid-up capital stock/shares at least
least Three Million Pesos Five Million Pesos (P5,000,000.00) in the
Section 8. Permissible
Contracting or Subcontracting
Arrangements. Notwithstanding
Sections 5 and 6 hereof, contracting or
subcontracting shall only be allowed if all
the following circumstances concur:
a) The contractor or
subcontractor is engaged in a distinct
and independent business and
undertakes to perform the job or work on
its own responsibility, according to its own
manner and method;
b) The contractor or
subcontractor has substantial capital to
carry out the job farmed out by the
principal on his account, manner and
method, investment in the form of tools,
equipment, machinery and supervision;
c) In performing the work
farmed out, the contractor or
subcontractor is free from the control
and/or direction of the principal in all
matters connected with the performance
of the work except as to the result
thereto; and
d) The Service Agreement
ensures compliance with all the rights
and benefits for all the employees of the
contractor or subcontractor under the
labor laws.
Where the termination results from the Where the termination results from the
expiration of the service agreement, or expiration of the Service Agreement, or
from the completion of the phase of the from the completion of the phase of the
job, work or service for which the job or work for which the employee is
employee is engaged, the latter may engaged, the latter may opt to wait for
opt for payment of separation benefits re-employment within three (3) months
as may be provided by law or the to resign and transfer to another
Service Agreement, without prejudice contractor-employer. Failure of the
to his/her entitlement to the contractor to provide new employment
completion bonuses or other for the employee shall entitle the latter to
emoluments, including retirement payment of separation benefits as may be
benefits whenever applicable. provided by law or the Service
Agreement, whichever is higher, without
prejudice to his/her entitlement to
completion bonuses or other emoluments,
including retirement benefits whenever
applicable. The mere expiration of the
Service Agreement shall not be deemed
as a termination of employment of the
contractor's/subcontractor's employees
who are regular employees of the latter.
Section 14. Mandatory Registration Section 14. Mandatory Registration
and Registry of Legitimate and Registry of Legitimate
Contractors. Consistent with the Contractors. Consistent with the
authority of the Secretary of Labor and authority of the Secretary of Labor and
Employment to restrict or prohibit the Employment to restrict or prohibit the
contracting out of labor to protect the contracting out of labor to protect the
rights of workers, it shall be mandatory rights of workers, it shall be mandatory
for all persons or entities, including for all persons or entities, including
cooperatives, acting as contractors, to cooperatives, acting as contractors, to
register With the Regional Office of the register With the Regional Office of the
Department of Labor and Employment Department of Labor and Employment
(DOLE) where it principally operates. (DOLE) where it principally operates.
Failure to register shall give rise to the Failure to register shall give rise to the
presumption that the contractor is presumption that the contractor is
engaged in labor-only contracting. engaged in labor-only contracting.
(a) The name and business address of (a) The name and business address of
the applicant and the areas where it the applicant and the areas where it
seeks to operate; seeks to operate;
(b) The names and addresses of (b) The names and addresses of
officers, if the applicant is a officers, if the applicant is a
corporation, partnership, cooperative corporation, partnership, cooperative
or a labor organization; or a labor organization;
(c) The nature of the applicant’s (c) The nature of the applicant’s
business and the industry or industries business and the industry or industries
where the applicant seeks to operate; where the applicant seeks to operate;
(d) The number of regular workers and (d) The number of regular workers and
the total workforce; the total workforce;
(e) The list of clients, if any, the (e) The list of clients, if any, the
number of personnel assigned to each number of personnel assigned to each
client, if any, and the services provided client, if any, and the services provided
to the client; to the client;
(f) The description of the phases of the (f) The description of the phases of the
contract, including the number of contract, including the number of
employees covered in each phase, employees covered in each phase,
where appropriate: and where appropriate: and
(g) Proof of compliance with substantial (g) Proof of compliance with substantial
capital requirement as defined in capital requirement as defined in
Section 3(l) of these Rules. Section 3(j) of these Rules.
The application shall be supported by: The application shall be supported by:
(a) A certified true copy of a certificate (a) A certified true copy of a certificate
of registration of firm or business name of registration of firm or business name
from the Securities and Exchange from the Securities and Exchange
Commission (SEC), Department of Commission (SEC), Department of
Trade and Industry (DTI), Cooperative Trade and Industry (DTI), Cooperative
Development Authority (CDA), or from Development Authority (CDA), or from
the DOLE if the applicant IS a labor the DOLE if the applicant IS a labor
organization; organization;
(b) A certified true copy of the license (b) A certified true copy of the license
or business permit issued by the local or business permit issued by the local
government unit or units where the government unit or units where the
contractor operates; contractor operates;
(c) A certified listing, with proof of (c) A certified listing, with proof of
ownership or lease contract, of ownership or lease contract, of
facilities, tools, equipment, premises facilities, tools, equipment, premises
implements, machineries and work implements, machineries and work
premises, that are actually and directly premises, that are actually and directly
Applications that fail to meet the Applications that fail to meet the
requirements set forth in Section 15 of requirements set forth in Section 15 of
these Rules shall be denied. these Rules shall be denied.
Upon registration, the Regional Office Upon registration, the Regional Office
shall return one set of the duly- shall return one set of the duly-
stamped application documents to the stamped application documents to the
applicant, retain one set for its file, and applicant, retain one set for its file, and
transmit the remaining set to the transmit the remaining set to the
Bureau of Working Conditions (BWC) Bureau of Working Conditions (BWC)
within five (5) days from registration. within five (5) days from registration.
In case the contractor has Service In case the contractor has Service
Agreements or operates outside the Agreements or operates outside the
region where it is registered, it shall region where it is registered, it shall
request a duly authenticated copy of its request a duly authenticated copy of its
Certificate of Registration from the Certificate of Registration from the
registering Regional Office and submit registering Regional Office and submit
the same to the DOLE Regional Office the same to the DOLE Regional Office
where it seeks to operate, together where it seeks to operate, together
with a copy of its Service Agreement/s with a copy of its Service Agreement/s
in the area, for purposes of monitoring in the area, for purposes of monitoring
compliance with these Rules. compliance with these Rules.
Copies of all the updated supporting Copies of all the updated supporting
documents in letters (a) to (e) of documents in letters (a) to (e) of
Section 15 hereof shall be attached to Section 15 hereof shall be attached to
the duly accomplished application form, the duly accomplished application form,
including the following: including the following:
(a) Certificate of membership and proof (a) Certificate of membership and proof
of payment of SSS, Philhealth, BIR, of payment of SSS, Philhealth, BIR,
The Regional Office shall return one set The Regional Office shall return one set
of the duly-stamped report to the of the duly-stamped report to the
contractor, retain one set for its file, contractor, retain one set for its file,
and transmit the remaining set to the and transmit the remaining set to the
Bureau of Working Conditions (BWC) Bureau of Working Conditions (BWC)
within five (5) days from receipt within five (5) days from receipt
thereof. thereof.
The complaint/s shall state the The complaint/s shall state the
following: following:
(a) The name/s and address/es of the (a) The name/s and address/es of the
complainant/s; complainant/s;
(b) Name and address of the (b) Name and address of the
contractor; contractor;
(c) The ground/s for cancellation; (c) The grounds;
(d) When and where the action (d) When and where the action
complained of happened; complained of happened;
(e) The amount of money claim, if any; (e) The amount of money claim, if any;
and and
(f) The relief/s sought. (f) The relief/s sought.
Upon receipt of the complaint, the Within the said seven (7) calendar days
Regional Director shall direct the period, the contractor shall make necessary
contractor, with notice to the corrections/rectifications on the
complainant, to file a verified violations that are immediately
answer/counter affidavit within ten rectifiable upon its initiative in order to
(10) calendar days without extension, be fully compliant.
incorporating therein all pertinent
documents in support of his/her
The Regional Director may avail himself Any motion for reconsideration from the
of all reasonable means to ascertain Order of the Regional Director shall be
the facts of the case, including conduct treated as an appeal.
of inspection, where appropriate, and
examination of informed persons.
Section 25. Appeal. The Order of the Section 25. Appeal. The Order of the
Regional Director is appealable to the Regional Director is appealable to the
Secretary within ten (10) working days Secretary within ten (10) working days
from receipt of the copy of the Order. from receipt of the copy of the Order.
The appeal shall be filed with the The appeal shall be filed with the
Regional Office which issued the Regional Office which issued the
cancellation Order. The Office of the cancellation Order. The Office of the
Secretary shall have thirty (30) Secretary shall have thirty (30)
working days from receipt of the working days from receipt of the
records of the case to resolve the records of the case to resolve the
appeal. The Decision of the Secretary appeal. The Decision of the Secretary
shall become final and executory after shall become final and executory after
ten (10) days from receipt thereof by ten (10) days from receipt thereof by
(a) Recommend the mechanics and (a) Recommend the mechanics and
details in setting up the Financial Relief details in setting up the Financial Relief
Program or Unemployment Assistance Program or Unemployment Assistance
Fund with proposed funding sources Fund with proposed funding sources
before end of June 2012; and before end of June 2018; and
(b) Draw-up the terms of a Tripartite (b) Draw-up the terms of a Tripartite
Co-Regulation Engagement in ensuring Co-Regulation Engagement in ensuring
full compliance with labor laws for full compliance with labor laws for
approval/endorsement by the NTIPC, approval/endorsement by the NTIPC,
including a proposed Table of including a proposed Table of
Progressive Rate of Increases in the Progressive Rate of Increases in the
minimum capitalization requirement at minimum capitalization requirement at
reasonable intervals to ensure that reasonable intervals to ensure that only
only legitimate contractors can engage legitimate contractors can engage in
in subcontracting arrangement. subcontracting arrangement.
LABOR-ONLY CONTRACTING.
When is there labor-only contracting?
(a) The contractor does not have substantial capital or investments in the
form of tools, equipment, machineries, work premises, among others, and
the employees recruited and placed are performing activities
which are usually necessary or desirable to the operation of the
company, or directly related to the main business of the
principal within a definite or predetermined period, regardless of
whether such job, work or service is to be performed or completed within or
outside the premises of the principal; OR
(b) The contractor does not exercise the right of control over the
performance of the work of the employee.
NOTE: Even if only one of the two (2) elements above is present, there is
labor-only contracting.
1. JUST CAUSES
What are the just causes under the Labor Code?
The just causes in the Labor Code are found in the following provisions
thereof:
(1) Article 282 - (Termination by the Employer) which provides for the
following grounds:
(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
representatives; and
(e) Other causes analogous to the foregoing.
(2) Article 264(a) - (Prohibited Activities) which provides for the
termination of the following: (a) Union officers who knowingly participate
in an illegal strike and therefore deemed to have lost their employment
status.
(b) Any employee, union officer or ordinary member who knowingly
participates in the commission of illegal acts during a strike (irrespective of
whether the strike is legal or illegal), is also deemed to have lost his
employment status.
(3) Article 263(g) - (National Interest Cases) where strikers who violate
orders, prohibitions and/or injunctions as are issued by the DOLE
Secretary or the NLRC, may be imposed immediate disciplinary action,
including dismissal or loss of employment status.
(4) Article 248(e) - (Union Security Clause) where violation of the union
security agreement in the CBA may result in termination of employment.
Under this clause, the bargaining union can demand from the employer the
dismissal of an employee who commits a breach of union security
arrangement, such as failure to join the union or to maintain his
membership in good standing therein. The same union can also demand
the dismissal of a member who commits an act of disloyalty against it, such
as when the member organizes a rival union.
I. SERIOUS MISCONDUCT
1. REQUISITES.
For misconduct or improper behavior to be a just cause for dismissal, the
following requisites must concur:
1. It must be serious; and
2. It must relate to the performance of the employee’s duties; and
3. It must show that he has become unfit to continue working for the
employer.
All the above three (3) requisites must concur.
1. REQUISITES.
One of the fundamental duties of an employee is to obey all reasonable
1. REQUISITES.
The following are the requisites:
(1) There must be negligence which is gross and/or habitual in character;
and
(2) It must be work-related as would make him unfit to work for his
employer.
1. CONCEPT.
Abandonment is a form of neglect of duty; hence, a just cause for
termination of employment under Article 282 [b] of the Labor Code.
2. REQUISITES.
To constitute abandonment, two (2) elements must concur, namely:
1. The employee must have failed to report for work or must have been
absent without valid or justifiable reason; and
2. There must have been a clear intention on the part of the employee to
sever the employer-employee relationship manifested by some overt act.
V. FRAUD
1. REQUISITES.
The following are the requisites of this ground:
1. There must be an act, omission, or concealment;
2. The act, omission or concealment involves a breach of legal duty, trust, or
confidence justly reposed;
3. It must be committed against the employer or his/her representative;
and
4. It must be in connection with the employees' work.1
2. GUIDELINES.
As a safeguard against employers who indiscriminately use “loss of trust
and confidence” to justify arbitrary dismissal of employees, the Supreme
Court, in addition to the above elements, came up with the following
guidelines for the application of the doctrine:
(1) The loss of confidence must not be simulated;
(2) It should not be used as a subterfuge for causes which are illegal,
improper or unjustified;
(3) It may not be arbitrarily asserted in the face of overwhelming evidence
to the contrary; and
(4) It must be genuine, not a mere afterthought, to justify earlier action
taken in bad faith.
The foregoing guidelines have been prescribed by the Supreme Court due to
the subjective nature of this ground which makes termination based on loss
of trust and confidence prone to abuse.
1 Per latest DOLE Department Order No. 147-15, series of 2015, September
07, 2015.
1. REQUISITES.
The following are the requisites for the valid invocation of this ground:
1. A crime or offense was committed by the employee;
2. It was committed against any of the following persons:
(a) His employer;
(b) Any immediate member of his employer’s family; or
(c) His employer’s duly authorized representative.
2. SOME PRINCIPLES ON THE COMMISSION OF CRIME OR
2. AUTHORIZED CAUSES
What are the 2 classes of authorized cause termination?
Under the Labor Code, authorized causes are classified into two (2) classes,
namely:
2. The purpose for such introduction must be valid such as to save on cost,
enhance efficiency and other justifiable economic reasons.1
II. REDUNDANCY
What are the additional requisites unique to this ground?
The additional requisites are as follows:
1. There must be superfluous positions or services of employees;
2. The positions or services are in excess of what is reasonably demanded
by the actual requirements of the enterprise to operate in an economical
and efficient manner; and
3. There must be an adequate proof of redundancy such as but not limited
to the new staffing pattern, feasibility studies/proposal, on the viability of
the newly created positions, job description and the approval by the
management of the restructuring.2
III. RETRENCHMENT
What are the additional requisites unique to this ground?
Per latest issuance of the DOLE, 3 the following are the additional
requisites:
1. The retrenchment must be reasonably necessary and likely to prevent
business losses;
2. The losses, if already incurred, are not merely de minimis, but
substantial, serious, actual and real, or if only expected, are reasonably
imminent;
3. The expected or actual losses must be proved by sufficient and
convincing evidence;4 and
4. The retrenchment must be in good faith for the advancement of its
interest and not to defeat or circumvent the employees' right to security of
tenure.
This is the only statutory ground in Article 283 which requires this kind of
proof. The other grounds of closure or cessation of business operations may
be resorted to with or without losses.
V. DISEASE
3. DUE PROCESS
(a) Twin-Notice Requirement
(b) Hearing; Meaning of Opportunity to be Heard
1. REINSTATEMENT
BACKWAGES
LIMITED BACKWAGES
When is the award of backwages limited?
(1) When the dismissal is deemed too harsh a penalty;
(2) When the employer acted in good faith; or
(3) Where there is no evidence that the employer dismissed the employee.
Thus, the backwages will not be granted in full but limited to 1 year, 2 years
or 5 years.
PREVENTIVE SUSPENSION
During the 30-day preventive suspension, the worker is not entitled to his
wages and other benefits. However, if the employer decides, for a justifiable
reason, to extend the period of preventive suspension beyond said 30-day
period, he is obligated to pay the wages and other benefits due the worker
during said period of extension. In such a case, the worker is not bound to
reimburse the amount paid to him during the extension if the employer
decides to dismiss him after the completion of the investigation.
Extension of period must be justified. During the 30-day period of
preventive suspension, the employer is expected to conduct and finish the
investigation of the employee’s administrative case. The period of thirty
(30) days may only be extended if the employer failed to complete the
hearing or investigation within said period due to justifiable grounds. No
extension thereof can be made based on whimsical, capricious or
unreasonable grounds.
Preventive suspension lasting longer than 30 days, without the benefit of
CONSTRUCTIVE DISMISSAL
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2. BARGAINING UNIT
What is a bargaining unit?
A “bargaining unit” refers to a group of employees sharing mutual interests
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. It may also refer to the
group or cluster of jobs or positions within the employer’s establishment
that supports the labor organization which is applying for registration.
2. GLOBE DOCTRINE.
This principle is based on the will of the employees. It is called Globe
doctrine because this principle was first enunciated in the United States
case of Globe Machine and Stamping Co.,1 where it was ruled, in
defining the appropriate bargaining unit, that in a case where the
company’s production workers can be considered either as a single
bargaining unit appropriate for purposes of collective bargaining or as three
CERTIFICATION ELECTION
What is certification election?
“Certification election” refers to the process of determining through secret
ballot the sole and exclusive bargaining agent of the employees in an
appropriate bargaining unit for purposes of collective bargaining or
negotiations.
a. General rule.
The general rule is that in the absence of a CBA duly registered in
accordance with Article 231 of the Labor Code, a petition for certification
election may be filed at any time.
b. Bar rules.
No certification election may be held under the following rules:
1. Certification year bar rule;
2. Negotiations bar rule;
3. Bargaining deadlock bar rule; or
4. Contract bar rule.
What are the requisites for the validity of the petition for
certification election?
The following requisites should concur:
1. The union should be legitimate which means that it is duly registered
RUN-OFF ELECTION
What is run-off election?
A “run-off election” refers to an election between the labor unions
receiving the two (2) highest number of votes in a certification election or
consent election with three (3) or more choices, where such a certification
election or consent election results in none of the three (3) or more choices
receiving the majority of the valid votes cast, provided that the total
number of votes for all contending unions is at least fifty percent (50%) of
the number of votes cast.
RE-RUN ELECTION
When should a re-run election be conducted?
A re-run election may be justified if certain irregularities have been
CONSENT ELECTION
What is consent election?
A “consent election” refers to the process of determining through secret
ballot the sole and exclusive representative of the employees in an
appropriate bargaining unit for purposes of collective bargaining and
negotiation. It is voluntarily agreed upon by the parties, with or without the
intervention of the DOLE.
1. AFFILIATION.
a. Mother union.
In relation to an affiliate, the federation or national union is commonly
known as the “mother union.” This term is not found in law but
oftentimes, the Supreme Court uses this term to describe a federation or a
national union.
b. Affiliate.
An “affiliate” refers to:
(1) An independent union affiliated with a federation or a national
2. DISAFFILIATION.
a. Right to disaffiliate.
The right of the affiliate union to disaffiliate from its mother federation or
national union is a constitutionally-guaranteed right which may be invoked
by the former at any time. It is axiomatic that an affiliate union is a separate
and voluntary association free to serve the interest of all its members -
consistent with the freedom of association guaranteed in the Constitution.
b. Disaffiliation of independently-registered union and local
chapter, distinguished.
The disaffiliation of an independently-registered union does not affect its
legitimate status as a labor organization.
1. CONCEPT.
When there is a CBA, the duty to bargain collectively shall mean that
neither party shall terminate nor modify such agreement during its lifetime.
However, either party can serve a written notice to terminate or modify the
agreement at least sixty (60) days prior to its expiration date. It shall
be the duty of both parties to keep the status quo and to continue in full
force and effect the terms and conditions of the existing agreement during
the 60-day period and/or until a new agreement is reached by
the parties.
2. FREEDOM PERIOD.
The last sixty (60) days of the 5-year lifetime of a CBA immediately prior to
its expiration is called the “freedom period.”
It is denominated as such because it is the only time when the law allows
the parties to freely serve a notice to terminate, alter or modify the existing
CBA. It is also the time when the majority status of the bargaining agent
may be challenged by another union
by filing the appropriate petition for certification election.
1. CBA.
A “Collective Bargaining Agreement” or “CBA” for short, refers to the
negotiated contract between a duly recognized or certified exclusive
bargaining agent of workers and their employer, concerning wages, hours
of work and all other terms and conditions of employment in the
appropriate bargaining unit, including mandatory provisions for grievances
and arbitration machineries. It is executed not only upon the request of the
exclusive bargaining representative but also by the employer.
2. GRIEVANCE MACHINERY.
“Grievance machinery” refers to the mechanism for the adjustment and
resolution of grievances arising from the interpretation or implementation
of a CBA and those arising from the interpretation or enforcement of
company personnel policies.
3. GRIEVANCE PROCEDURE.
“Grievance procedure” refers to the internal rules of procedure
established by the parties in their CBA with voluntary arbitration as the
terminal step, which are intended to resolve all issues arising from the
implementation and interpretation of their collective agreement. It is that
part of the CBA which provides for a peaceful way of settling differences
and misunderstanding between the parties.
The terms “grievance procedure” and “grievance machinery” may
be used interchangeably.
1. VOLUNTARY ARBITRATION.
“Voluntary arbitration” refers to the mode of settling labor-
management disputes in which the parties select a competent, trained and
impartial third person who is tasked to decide on the merits of the case and
whose decision is final and executory.
2. VOLUNTARY ARBITRATOR.
A “Voluntary Arbitrator” refers to any person who has been mutually
named or designated by the parties to the CBA – the employer and the
bargaining agent - to hear and decide the issues between them.
A Voluntary Arbitrator is not an employee, functionary or part of the
government or of the Department of Labor and Employment, but he is
authorized to render arbitration services provided under labor laws.
1. TERMS OF A CBA.
The terms of a CBA are classified into two (2), viz.:
(a) Representation aspect – 5 years which is the lifetime of a CBA;
(b) All other provisions – Subject to renegotiation after first 3 years
of the 5-year lifetime of CBA.
2. REPRESENTATION ASPECT.
The phrase “representation aspect” in Article 253-A of the Labor Code
refers to the identity and majority status of the bargaining agent that
successfully negotiated the CBA as the exclusive bargaining representative
of the employees in the appropriate bargaining unit concerned.
The 5-year representation status of the incumbent exclusive bargaining
agent should be reckoned from the effectivity of the CBA. This means that
no petition for certification election questioning its majority status may be
entertained during the lifetime of the CBA except within the 60-day
freedom period immediately preceding the expiry date of the 5-year term.
3. UNION SECURITY
1. NATURE AND PURPOSE OF UNION SECURITY CLAUSE.
The “union security clause” allows the parties thereto to enter into an
agreement requiring compulsory membership in the bargaining
agent which successfully negotiated said CBA as a condition for
continued employment with the exception of employees who are
already members of another union at the time of the signing of the CBA.
“Union security” is a generic term which is applied to and comprehends
“closed shop,” “union shop,” “maintenance of membership” or any other
form of agreement which imposes upon the employees the obligation to
acquire or retain union membership as a condition to their continued
employment. In other words, the purpose of a union security
arrangement is to guarantee the continued existence of the
union through enforced membership for the benefit of the
workers.
Without this clause, the existence of the union is always subject to
uncertainty as its members may resign anytime resulting in the decimation
of its ranks. The union becomes gradually weakened and increasingly
vulnerable to company machinations. In this security clause lies the
strength of the union during the enforcement of the CBA. It is this clause
that provides labor with substantial power in collective bargaining.
Modification of arrangements.
The above classification admits of certain modified types which the parties
may agree upon in the CBA depending on the peculiar requirements of the
situation.
2. CLOSED-SHOP AGREEMENT.
A “closed-shop” may be defined as a scheme in which, by agreement
between the employer and its employees through their bargaining
union/agent, no person may be employed unless he or she is, becomes, and,
for the duration of the agreement, remains a member in good standing of
the bargaining union. Basically, this kind of agreement stipulates the
undertaking by the employer not to hire or employ any person who is not a
member of the bargaining union. Once employed, it is required that the
said person should remain a member of the bargaining union in good
standing as a condition for continued employment, at least during the
whole duration of the CBA.
CONCEPT.
“Blue-sky bargaining” means making exaggerated or unreasonable
proposals. This kind of unfair labor practice act may only be committed by
the bargaining union.
CONCEPT.
“Surface bargaining” is defined as “going through the motions of
negotiating” without any legal intent to reach an agreement. This kind of
unfair labor practice may only be committed by the employer.
The only ULP which is the exception as it may or may not relate to the
exercise of the right to self-organization and collective bargaining is the act
described under Article 248 [f], i.e., to dismiss, discharge or
otherwise prejudice or discriminate against an employee for
having given or being about to give testimony under the Labor
Code.
5. ELEMENTS OF ULP.
Before an employer or labor organization may be said to have committed
ULP, the following elements must concur:
a. There should exist an employer-employee relationship between the
offended party and the offender; and
b. The act complained of must be expressly mentioned and defined in
the Labor Code as an unfair labor practice.
Absent one of the elements aforementioned will not make the act an unfair
labor practice.
6. ASPECTS OF ULP.
1. GENERAL RULE.
As a general rule, the act of an employer in having work or certain services
or functions being performed by union members contracted out is not per
se an unfair labor practice. This is so because contracting-out of a job, work
or service is clearly an exercise by the employer of its business judgment
and its inherent management rights and prerogatives. Hiring of workers is
within the employer’s inherent freedom to regulate its business and is a
valid exercise of its management prerogative subject only to special laws
and agreements on the matter and the fair standards of justice. The
employer cannot be denied the faculty of promoting efficiency and attaining
economy by a study of what units are essential for its operation. It has the
ultimate right to determine whether services should be performed by its
personnel or contracted to outside agencies.
1 G.R. No. L-25291, Jan. 30, 1971, 37 SCRA 244.
2 G.R. No. 149440, Jan. 28, 2003.
V. DISCRIMINATION
1. COVERAGE OF PROHIBITION.
What is prohibited as unfair labor practice under the law is 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.
1. CONCEPT.
Under paragraph [f] of Article 248 of the Labor Code, it is an 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.
Article 248 enunciates three (3) CBA-related unfair labor practices, to wit:
a. To violate the duty to bargain collectively as prescribed in the Labor
Code.
b. To pay negotiation or attorney’s fees to the union or its officers or agents
as part of the settlement of any issue in collective bargaining or any other
dispute.
c. To violate a collective bargaining agreement.
1. CORRELATION.
Article 248(i) of the Labor Code should be read in relation to Article 261
thereof. Under Article 261, as amended, violations of a CBA, except those
which are gross in character, shall no longer be treated as an unfair labor
practice and shall be resolved as grievances under the CBA. Gross
violations of CBA shall mean flagrant and/or malicious refusal to comply
with the economic provisions of such agreement.
2. CASE LAW.
The act of the employer in refusing to implement the negotiated wage
increase stipulated in the CBA, which increase is intended to be distinct and
separate from any other benefits or privileges that may be forthcoming to
the employees, is an unfair labor practice. Refusal for a considerable
II. DISCRIMINATION
1. CONCEPT.
Under Article 249(b), it is ULP for a labor organization, its officers, agents
or representatives 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 or continuation of membership is made available to
other members.
1. CONCEPT.
Under Article 249(c), it is ULP for a duly certified sole and exclusive
bargaining union, its officers, agents or representatives to refuse or violate
the duty to bargain collectively with the employer. This is the counterpart
provision of Article 248(g) respecting the violation by the employer of its
duty to bargain collectively.
2. PURPOSE.
The obvious purpose of the law is to ensure that the union will negotiate
with management in good faith and for the purpose of concluding a
1. CONCEPT.
Under Article 249(d), it is ULP for a labor organization, its officers, agents
or representatives 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 an exaction, for services which are not performed or not to be
performed, including the demand for fee for union negotiations.
This practice of the union is commonly known as “featherbedding” as it
unduly and unnecessarily maintains or increases the number of employees
used or the amount of time consumed to work on a specific job. This is done
by the employees to unduly secure their jobs in the face of technological
advances or as required by minimum health and safety standards, among
other justifications. These featherbedding practices have been found to be
wasteful and without legitimate justifications.
CONCEPT.
Under Article 249(e), it is ULP for a labor organization, its officers, agents
or representatives to ask for or accept negotiation fees or attorney’s fees
from employers as part of the settlement of any issue in collective
bargaining or any other dispute.
1. CONCEPT.
Under Article 249(f), it is ULP for a labor organization, its officers, agents
or representatives to violate a CBA.
2. COUNTERPART PROVISION.
This is the counterpart provision of Article 248(i) regarding the employer’s
PERSONS LIABLE.
Article 249 is explicit in its provision on who should be held liable for ULPs
committed by labor organizations. It states that only the officers, members
of governing boards, representatives or agents or members of labor
associations or organizations who have actually participated in, authorized
or ratified unfair labor practices shall be held criminally liable.
A. STRIKE.
“Strike” means any temporary stoppage of work by the concerted action of
the employees as a result of an industrial or labor dispute.
Forms and classification of strikes.
2. As to coverage:
a. General strike – one which covers and extends over a whole province or
country. In this kind of strike, the employees of various companies and
industries cease to work in sympathy with striking workers of another
company. It is also resorted to for the purpose of putting pressure on the
government to enact certain labor-related measures such as mandated
wage increases or to cease from implementing a law which workers
consider inimical to their interest. It is also mounted for purposes of
paralyzing or crippling the entire economic dispensation.
3. As to purpose:
a. Economic strike.
b. Unfair labor practice strike or political strike.
B. LOCKOUT.
“Lockout” means the temporary refusal by an employer to furnish work as a
result of an industrial or labor dispute.
C. PICKETING.
“Picketing” is the act of workers in peacefully marching to and fro before an
establishment involved in a labor dispute generally accompanied by the
carrying and display of signs, placards and banners intended to inform the
public about the dispute.
a. Proper party.
b. Basic requirements.
As to the personality of the union, the following requirements should be
shown before a strike may be validly declared and staged:
a. Proper party.
Only the employer can declare and stage a lockout. For obvious reason, no
union can.
b. Grounds.
The employer may declare a lockout based on any of the two (2) grounds
that may similarly be invoked by the union in staging a strike, i.e., (1)
bargaining deadlock; and/or (2) unfair labor practice.
I. FIRST REQUISITE:
2. PURPOSE.
The purpose of a strike vote is to ensure that the decision to strike broadly
rests with the majority of the union members in general and not with a
mere minority.
V. FIFTH REQUISITE:
SUBMISSION OF THE STRIKE VOTE TO NCMB-DOLE
1. PURPOSE FOR REQUIRING A STRIKE VOTE REPORT.
The evident intention of the law in mandatorily requiring the submission of
the strike vote report is to afford the NCMB of opportunity to verify the
truth and veracity of the majority vote by the union members in support of
the intended strike.
2. WHEN TO SUBMIT THE STRIKE VOTE REPORT.
The strike vote report should be submitted to the NCMB-DOLE at least
seven (7) days before the actual staging of the intended strike, subject to
the observance of the cooling-off periods provided under the law.
1. GENERAL RULE.
The cooling-off periods provided under the law before the intended date of
the actual mounting of the strike are as follows:
a. In case of bargaining deadlock, the cooling-off period is thirty (30)
days from the filing of the notice of strike; or
b. In case of unfair labor practice, the cooling-off period is fifteen (15)
days from the filing of the notice of strike.
(c) A picket simply means to march to and fro in front of the employer’s
premises, usually accompanied by the display of placards and other signs
making known the facts involved in a labor dispute. It is but one strike
activity separate and different from the actual stoppage of work.
Phimco Industries, Inc. v. Phimco Industries Labor Association
(PILA).1 - While the right of employees to publicize their dispute falls
within the protection of freedom of expression and the right to peaceably
assemble to air grievances, these rights are by no means absolute.
Protected picketing does not extend to blocking ingress to and
egress from the company premises. That the picket was moving,
was peaceful and was not attended by actual violence may not
free it from taints of illegality if the picket effectively blocked
entry to and exit from the company premises.
Article 263(g) of the Labor Code provides that when in the opinion of
the DOLE Secretary, the labor dispute causes or will likely to
cause a strike or lockout in an industry indispensable to the
national interest, he is empowered to do either of 2 things:
1. He may assume jurisdiction over the labor dispute and decide it
himself; or
2. He may certify it to the NLRC for compulsory arbitration, in which case,
it will be the NLRC which shall hear and decide it.
This power may be exercised by the DOLE Secretary even before the
actual staging of a strike or lockout since Article 263(g) does not
require the existence of a strike or lockout but only of a labor dispute
involving national interest.
The Labor Code vests in the DOLE Secretary the discretion to determine
what industries are indispensable to the national interest. Accordingly,
upon the determination by the DOLE Secretary that such industry is
indispensable to the national interest, he has authority to assume
jurisdiction over the labor dispute in the said industry or certify it to the
NLRC for compulsory arbitration.
Past issuances of the DOLE Secretary have not made nor attempted to
mention specifically what the industries indispensable to the national
interest are. It was only in Department Order No. 40-H-13, Series of 2013,
that certain industries were specifically named, thus:
Prior notice and hearing are not required in the issuance of the
assumption or certification order.
The DOLE Secretary may seek the assistance of law enforcement agencies
like the Philippine National Police to ensure compliance with the provision
thereof as well as with such orders as he may issue to enforce the same.
RETURN-TO-WORK ORDER.
Example:
University of Sto. Tomas v. NLRC, where the teachers ordered to
return to work could not be given back their academic assignments since
the return-to-work order of the DOLE Secretary was issued in the middle of
the first semester of the academic year. The Supreme Court affirmed the
validity of the payroll reinstatement order of the NLRC and ruled that the
NLRC did not commit grave abuse of discretion in providing for the
alternative remedy of payroll reinstatement. It observed that the NLRC was
only trying its best to work out a satisfactory ad hoc solution to a festering
and serious problem.
The fact that the employees are signatories to the CBA does not in itself
sufficiently establish their status as union officers during the illegal strike.
Neither were their active roles during the bargaining negotiations be
considered as evidence of their being union officers.
Only the union officers during the period of illegal strike are
liable. If the employees acted as union officers after the strike, they may
not be held liable and, therefore, could not be terminated in their capacity
as such.
Shop stewards are union officers. Hence, they should be terminated
upon the declaration of the illegality of the strike.
Union officers may be dismissed despite the fact that the illegal
strike was staged only for 1 day or even for less than 10 hours.
This holds true in cases of defiance of the assumption/ certification order
issued in national interest cases.
If the dispositive portion of the decision failed to mention the
names of union officers, resort should be made to the text of the
decision.
No wholesale dismissal of strikers allowed. The employer cannot
just unceremoniously dismiss a hundred of its employees in the absence of
clear and convincing proof that these people were indeed guilty of the acts
charged and then, afterwards, go to court to seek validation of the dismissal
it whimsically executed. That certainly cannot be allowed.
(1) Violation of Article 264(e) of the Labor Code which provides that “[n]o
person engaged in picketing shall commit
any act of violence, coercion or intimidation or obstruct the free ingress to
or egress from the employer’s premises
for lawful purposes, or obstruct public thoroughfares.”
(2) Commission of crimes and other unlawful acts in carrying out the strike.
(3) Violation of any order, prohibition, or injunction issued by the DOLE
Secretary or NLRC in connection with the assumption of jurisdiction or
certification order under Article 263(g) of the Labor Code.
This enumeration is not exclusive as jurisprudence abounds where the term
“illegal acts” has been interpreted and construed to cover other breaches of
existing laws.
Liability for illegal acts should be determined on an individual
basis. For this purpose, the individual identity of the union members
who participated in the commission of illegal acts may be proved thru
affidavits and photographs. Simply referring to them as “strikers,”
or “complainants in this case” is not enough to justify their
dismissal.
1 G.R. Nos. 154113, 187778, 187861 & 196156, Dec. 7, 2011, 661 SCRA 686.
10. INJUNCTIONS
LABOR ARBITER
3. JURISDICTION
a. NATURE OF JURISDICTION OF LABOR ARBITERS -
ORIGINAL AND EXCLUSIVE.
The jurisdiction conferred by Article 217 upon the Labor Arbiters is both
original and exclusive, meaning, no other officers or tribunals can take
cognizance of, or hear and decide, any of the cases therein enumerated.
1. LEGAL BASIS.
Article 227 clearly embodies the following provisions on compromise
agreements:
“Article 227. Compromise Agreements. - Any compromise settlement,
including those involving labor standard 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.”
Clear from the foregoing provision that, although the compromise
agreement may have been entered into by the parties before the Bureau of
Labor Relations (BLR) or the DOLE Regional Office, it is the Labor Arbiter
who has jurisdiction to take cognizance of the following issues related
thereto, to the exclusion of the BLR and the DOLE Regional Directors:
(1) To enforce the compromise agreement in case of non-compliance
therewith by any of the parties thereto; or
(2) To nullify it if there is prima facie evidence that the settlement was
obtained through fraud, misrepresentation, or coercion.
(a) All cases which are administrative in character, involving or arising out
of violation of rules and regulations relating to licensing and registration of
recruitment and employment agencies or entities, including refund of fees
(b) Disciplinary action cases and other special cases which are
administrative in character, involving employers, principals, contracting
partners and Filipino migrant workers.
2. MATLING DOCTRINE.
(7) Because of the Matling doctrine, the rulings in Tabang and Nacpil,
are no longer controlling because they are “too sweeping and do not accord
with reason, justice, and fair play.”1 Enunciated in the 2010 case of Matling
Industrial and Commercial Corp. v. Ricardo R. Coros, G.R. No. 157802, Oct.
13, 2010.
This case is an appeal via petition for review on certiorari. The petitioners
challenge the decision of the CA which sustained the ruling of the NLRC to
the effect that the Labor Arbiter had jurisdiction because the respondent,
its Vice President for Finance and Administration, was not a corporate
officer of petitioner Matling.
b. Other cases:
(1) Barba v. Liceo de Cagayan University (2012);
(2) Marc II Marketing, Inc. and Lucila V. Joson v. Alfredo M.
Joson (2011);
2. ILLUSTRATIVE CASE.
In Department of Foreign Affairs v. NLRC,1 involving an illegal
dismissal case filed against the Asian Development Bank (ADB), it was
ruled that said entity enjoys immunity from legal process of every form and
therefore the suit against it cannot prosper. And this immunity extends to
its officers who also enjoy immunity in respect of all acts performed by
them in their official capacity. The Charter and the Headquarters
Agreement granting these immunities and privileges to the ADB are treat
covenants and commitments voluntarily assumed by the Philippine
government which must be respected.
When former position is already filled up, the employee ordered reinstated
pending appeal should be reinstated to a substantially equivalent
position.
I. APPEAL IN GENERAL
1. APPEAL, MEANING AND NATURE.
The term “appeal” refers to the elevation by an aggrieved party to an
agency vested with appellate authority of any decision, resolution or order
disposing the principal issues of a case rendered by an agency vested with
original jurisdiction, undertaken by filing a memorandum of appeal.
3. REQUISITES.
The requisites for perfection of appeal to the NLRC are as follows:
(1) Observance of the reglementary period;
1. Ten (10) calendar days – in the case of appeals from decisions of the
Labor Arbiters under Article 223 of the Labor Code; and
2. Five (5) calendar days – in the case of appeals from decisions of the
DOLE Regional Director under Article 129 of the Labor Code.
Calendar days and not working days.
The shortened period of ten (10) days fixed by Article 223 contemplates
calendar days and not working days. The same holds true in the case of
the 5-day reglementary period under Article 129 of the Labor Code.
Consequently, Saturdays, Sundays and legal holidays are
included in reckoning and computing the reglementary period.
V. MEMORANDUM OF APPEAL
1. REQUISITES.
The requisites for a valid Memorandum of Appeal are as follows:
1. The Memorandum of Appeal should be verified by the appellant himself
in accordance with the Rules of Court, as amended;
2. It should be presented in three (3) legibly typewritten or printed copies;
3. It shall state the grounds relied upon and the arguments in support
thereof, including the relief prayed for;
4. It shall contain a statement of the date the appellant received the
appealed decision, award or order; and
5. It shall be accompanied by:
(i) proof of payment of the required appeal fee and legal research fee;
(ii) posting of a cash or surety bond (in case of monetary awards); and
(iii) proof of service upon the other party.
The rule set in McBurnie was clarified3 by the Court in the consolidated
cases of Sara Lee Philippines v. Ermilinda Macatlang.4 Thus, while
McBurnie has effectively addressed the preliminary amount of the bond to
be posted in order to toll the running of the period to appeal, there is no
hard and fast rule in determining whether the additional bond to be posted
is reasonable in relation to the judgment award. In this case of Sara Lee,
petitioner companies5 were held liable by the Labor Arbiter for the illegal
1. NATURE.
The NLRC is an administrative quasi-judicial body. It is an agency attached
to the DOLE solely for program and policy coordination only. It is in
charge of deciding labor cases through compulsory arbitration.
3. COMMISSION EN BANC.
The Commission sits en banc only for the following purposes:
(1) To promulgate rules and regulations governing the hearing and
disposition of cases before any of its divisions and regional branches; and
(2) To formulate policies affecting its administration and operations.
The NLRC does not sit en banc to hear and decide cases. The en
banc has no adjudicatory power. The Commission exercises its
adjudicatory and all other powers, functions, and duties through
its eight (8) Divisions.
1. JURISDICTION
3. REMEDIES
1. EXTRAORDINARY REMEDIES.
a. Nature.
The power of the Commission (NLRC) to grant extraordinary remedies
mentioned in No. 3 above is not provided in the Labor Code or in any other
laws. It is a newly created remedy which saw light for the first time under
Rule XII of the 2011 NLRC Rules of Procedure. Past NLRC Rules did not
provide therefor. Since this is a recent newly minted remedy, there has yet
been no decision by the Supreme Court dwelling on its validity.
What is clear though is that this remedy is not equivalent to nor a substitute
for appeal. It is directed against “orders” or “resolutions” issued by the
Labor Arbiter in the course of the proceedings before him where the
remedy of appeal is not available. Notably, the remedy of appeal is available
only against the main decision of a case. But orders or resolutions issued
prior to the rendition of the decision in the main as well as orders or
resolutions issued thereafter, specifically during the execution stage, are
subject of this rule on extraordinary remedies.
b. Grounds.
The petition filed under this Rule may be entertained only on any of the
following grounds:
(a) If there is prima facie evidence of abuse of discretion on the part of the
4. CERTIFIED CASES
1. JURISDICTION
(ORIGINAL AND APPELLATE)
1. INTRODUCTION.
For purposes of clarity in the otherwise labyrinthine issue of jurisdiction
and procedure in the BLR, there is a need to cite first the cases over which
the following officials have their respective jurisdictions:
(1) Mediator-Arbiter (Med-Arbiter);
(2) DOLE Regional Director; and
(3) BLR Director.
The Mediator-Arbiter and the DOLE Regional Director exercise
2. CASES COVERED.
There are three (3) general classifications of the cases covered by
the jurisdiction of said officials, to wit:
(a) Inter-union disputes;
(b) Intra-union disputes; and
(c) Other related labor relations disputes.
1. NATURE OF PROCEEDINGS
3. PREVENTIVE MEDIATION
5. RELEVANT CASES.
A case in point is Philippine Airlines, Inc. v. Secretary of Labor and
Employment,1 where the strike was declared illegal for lack of a valid
notice of strike in view of the NCMB’s conversion of said notice into a
preventive mediation case.
It is clear, according to San Miguel Corporation v. NLRC,2 that the
moment the NCMB orders the preventive mediation in a strike case, the
union thereupon loses the notice of strike it had filed. Consequently, if it
still defiantly proceeds with the strike while mediation is on-going, the
strike is illegal.
1. JURISDICTION
2. ORIGINAL JURISDICTION.
The DOLE Regional Directors exercise original jurisdiction over the
following:
(a) Cases involving inspection of establishments to determine compliance
with labor standards (Visitorial Power); and (b) Cases involving issuance
of compliance orders and writs of execution (Enforcement Power).
1. JURISDICTION.
As EVAs, the DOLE Regional Directors and their Assistants have
F. DOLE SECRETARY
1. POWERS OF THE DOLE SECRETARY.
The DOLE Secretary, being the head of the Department of Labor and
Employment, is possessed of a number of powers, some of which are
mentioned in the syllabus, to wit:
1. Visitorial and enforcement powers;
2. Power to suspend/effects of termination;
3. Assumption of jurisdiction;
4. Appellate jurisdiction; and
5. Voluntary arbitration powers.
3. ASSUMPTION OF JURISDICTION
The DOLE Secretary is granted under Article 263(g) of the Labor Code, the
extraordinary police power of assuming jurisdiction over a labor dispute
which, in his opinion, will cause or likely to cause a strike or lockout in an
industry indispensable to the national interest, or the so-called “national
interest” cases. Alternatively, he may certify the labor dispute to the
NLRC for compulsory arbitration.
2. VOLUNTARY ARBITRATOR
1. VOLUNTARY ARBITRATION.
“Voluntary arbitration” refers to the mode of settling labor-management
disputes in which the parties select a competent, trained and impartial
third person who is tasked to decide on the merits of the case and whose
decision is final and executory. It is a third-party settlement of a labor
dispute involving the mutual consent by the representatives of the
employer and the labor union involved in a labor dispute to submit their
case for arbitration.
2. VOLUNTARY ARBITRATOR.
a. Who is a Voluntary Arbitrator?
A “Voluntary Arbitrator” refers to:
(1) any person who has been accredited by the National Conciliation and
Mediation Board (“NCMB” or “Board”) as such; or
(2) any person named or designated in the CBA by the parties as their
Voluntary Arbitrator; or
(a) JURISDICTION
c. Interest disputes.
Bargaining deadlocks are often referred to as “interest disputes.” This
kind of disputes relates to disputes over the formation of collective
agreements or efforts to secure them. They arise where there is no such
agreement or where it is sought to change the terms of one and therefore
the issue is not whether an existing agreement controls the controversy.
They look to the acquisition of rights for the future, not to assertion of
rights claimed to have vested in the past.
2. HOW INITIATED.
Based on the foregoing discussion, an arbitration may be initiated either by
way of:
(1) A Submission Agreement; or
(2) A Demand or Notice to Arbitrate invoking the arbitration clause in the
CBA; or
(3) An Appointment from the NCMB.
A “Submission Agreement” refers to a written agreement by the parties
submitting their case for arbitration, containing a statement of the issues,
the name of their chosen Voluntary Arbitrator and a stipulation and an
undertaking to abide by and comply with the resolution that may be
rendered therein, including the cost of arbitration.
A “Notice to Arbitrate” refers to a formal demand made by one party to the
other for the arbitration of a particular dispute in the event of refusal by
one party in a CBA to submit the same to arbitration
3. SOME PRINCIPLES.
1) Cases cognizable by Voluntary Arbitrators in their original
jurisdiction but filed with Labor Arbiters, DOLE Regional Offices
or NCMB should be disposed of by referring them to the Voluntary
Arbitrators or panel of Voluntary Arbitrators mutually chosen by the
parties.
2) Cases cognizable by Voluntary Arbitrators but filed with
regular courts should be dismissed.
(c) REMEDIES
1. RELIEFS AND REMEDIES THAT MAY BE GRANTED BY
VOLUNTARY ARBITRATORS.
Besides the procedural remedies discussed above, the Voluntary Arbitrator
or panel of Voluntary Arbitrators may grant the same reliefs and remedies
granted by Labor Arbiters under Article 279 of the Labor Code, such as:
(1) In illegal dismissal cases:
(a) Actual reinstatement;
(b) Separation pay in lieu of reinstatement, in case reinstatement becomes
impossible, non-feasible or impractical;
(c) Full backwages;
(d) Moral and exemplary damages; and
(e) Attorney’s fees.
(2) Monetary awards in monetary claims cases in which case, the
decision should specify the amount granted and the formula used in the
computation thereof.
H. COURT OF APPEALS
I. SUPREME COURT
J. PRESCRIPTION OF ACTIONS
1. MONEY CLAIMS CASES.
a. Prescriptive period is three (3) years under Article 291 of the
Labor Code. - The prescriptive period of all money claims and benefits
arising from employer-employee relations is 3 years from the time the
cause of action accrued; otherwise, they shall be forever barred.
b. All other money claims of workers prescribe in 3 years. - Article
291 contemplates all money claims arising from employer-employee
relationship, including:
1. Money claims arising from the CBA.
2. Incremental proceeds from tuition increases.
3. Money claims of Overseas Filipino Workers (OFWs).
Note must be made that in the 2010 case of Southeastern Shipping v.
Navarra, Jr.,4 the 1-year prescriptive period in Section 28 of
POEA-SEC was declared null and void. The reason is that Article 291
of the Labor Code is the law governing the prescription of money claims of
seafarers, a class of overseas contract workers. This law prevails over said
Section 28.