19.

Termination of OFW and its effect

Azucena (seafarers ra akong nakita na pwede ma-under sa OFW)

Seafarers are contractual employees. Their employment is governed by the POEA Standard
Employment Contract which they sign everytime they are hired. Their employment terminates when the
contract expires. When it does, they are not entitled to separation pay since their employment is
contractually fixed for a certain period of time. (Millares, July 29,2002)

Note: Millares ruling applies only to overseas seafarers. Domestic seafarers are covered
by Art. 294. They are entitled to security of tenure.

20. Instances to pay Separation pay (Poquiz page 481-)

Separation pay is defined as the amount that an employee receives at the time of his severance
from the service and is designed to provide the employee with the wherewithal during the period that
he is looking for another employment.

 Separation pay is payable to an employee whose services are validly terminated for authorized
causes such as automation, retrenchment, redundancy, closure of business or disease. It is a
measure of social justice only in instances where the employee is validly dismissed for causes
other than serious misconduct or those reflecting his moral character.

 Separation pay is made an alternative relief in lieu of reinstatement in certain circumstances,

such as:
(1) When reinstatement can no longer be effected in view of the passage of a long period of
time or because of the realities of the situation;
(2) Reinstatement is inimical to the employer’s interest;
(3) Reinstatement is no longer feasible;
(4) Reinstatement does not serve the best interests of the of the parties involved;
(5) The employer is prejudiced by the workers’ continued employment;
(6) Facts that make execution unjust or inequitable have supervened; or
(7) Strained relations between the employer and the employees.

 GR: A person dismissed for a cause is not entitled to separation pay.

XPN: cases based upon considerations of equity.

Award of separation pay in the form of financial assistance

In exceptional cases, financial assistance has been granted to legally dismissed
employees as an act of “social justice” or based on “equity” so long as the dismissal was
not for serious misconduct, or does not reflect on the employee’s moral character, or
would involve moral turpitude.
21. Requirements to declare a strike

AZUCENA

A strike (or lockout) to enjoy protection of the law, must observe certain procedural requirements. (Art
278)

(1) A notice of strike (or lockout), with the required contents, should be filed with the DOLE,
specifically the regional branch of the National Conciliation and Mediation Board (NCMB), copy
furnished the employer or the union, as the case may be.

Who can file notice? If the reason for the strike notice is bargaining deadlock, only the
recognized or certified bargaining agent can file the notice. If the reason is ULP, the
notice should be filed by the certified bargaining agent; in its absence the LLO affected
by the ULP may file the notice.

Only a LLO can legally hold a strike. Ununionized employees cannot hold a lawful work
stoppage because only a union can file a notice of strike and only a union can take a
strike vote among its members and then report its result to NCMB.

(2) A cooling off period must be observed, i.e., time gap is required to cool-off tempers between
the filing of notice and the start of the actual work stoppage. The cooling-off period is 30 days in
case of bargaining deadlock and 15 days in case of ULP. However, in case of union-busting as
defined in Art. 264 (c), the 15-day cooling-off period shall not apply and the union may take
action immediately after the strike vote is conducted and the results submitted to the Board.

(3) During the cooling-off period, the NCMB mediates and conciliates the parties. They are not
allowed to do any act which may disrupt or impede the early settlement of the dispute. As part
of their duty to bargain, they are obliged to participate fully and promptly in the NCMB
meetings.

(4) Before a strike may actually start, the union should take a strike vote by secret balloting in
meetings or referenda, with 2-hour prior notice to NCMB. The decision to declare a strike
requires the secret-ballot approval of majority of the total union membership, not just majority
of members attending the meeting. Similarly, a lockout needs the secret-ballot concurrence of
majority of the members of the directors or partners.

(5) The result of the strike (or lockout) vote should be reported to the NCMB at least 7 days before
the intended strike or lockout, subject to the cooling-off period. The 7 days are in addition to the
15 or 30 days cooling-off period.
 The cooling-off period and the seen-day reporting period are 2 different mandatory
requirements. And they must be separately counted they have different purposes- one
is devoted to conciliation efforts, the other to verification of the voting report.

(6) No strike (or lockout) shall be declared after certification or submission of the dispute to
compulsory or voluntary arbitration, nor may a strike (or lockout) be declared during the
pendency of cases involving the same grounds for the strike (or lockout). Hence, no strike (or
lockout) shall be declared after the assumption of jurisdiction by the President or the Secretary,
or while the case is pending in arbitration, whether compulsory or voluntary.

A strike (or lockout) on the basis of grievances which have not been submitted to the
grievance committee, as stipulated in the agreement of the parties by the CIR (now
NLRC), is premature and illegal. (Insurefco Paper Pulp, 95 phil 761)

POQUIZ (pages 372-373)

The requirements for a valid strike or lockout are as follows:

(a) It must be based on a valid and factual ground;

(b) A strike (or lockout) must be approved by the majority of the total membership of the Union( or
the members of the BODs of the Corporation or Association or the partners in a partnership),
obtained by secret ballot in a meeting called for the purpose.
(c) A strike (or lockout) NOTICE shall be filed with the NCMB at least 15 days from the intended
date thereof if the issues raised are ULP or at least 30 days if the issue involves bargaining
deadlock copy furnished the adverse party (company). The failure of the union to serve a copy
of the notice of strike to the company is a violation of due process.

In cases of dismissal from employment of union officers duly elected in accordance with
the union constitution and by-laws, which may constitute UNION BUSTING where the
existence of the union is threatened, the cooling-off period need not be observed. In
case of ULP, the 15-day period cooling-off period shall not apply and the union may take
action immediately after the strike vote is conducted and the results thereof submitted
to the appropriate regional branch of the NCMB

(d) Compliance with the twenty-four (24) hours prior notice rule on strike voting.
(e) A strike (or lockout) VOTE shall be reported to the NCMN-DOLE Regional Branch at least 7 days
before the intended strike (or lockout) subject to the cooling-off period.
In the event the result of the strike (or lockout) ballot is filed within the cooling-off
period, the 7-day requirement shall be counted from the day following the expiration of
the cooling-off period.

In case of Union Busting, the time requirement for the filing of the Notice of Strike shall
be dispensed with but the strike vote requirement, being mandatory in character, shall
“in every case” be complied with.

In strikes (or lockouts) in hospital, it is the duty of the striking union (or lock-outing
employer) to provide an effective skeletal workforce of medical and health personnel to
insure adequate protection of the life and health of the patients, particularly emergency
cases during the duration of the strike.