LABOR RELATIONS TSN 2017
Fr. Agustin Nazareno’s Lecture
Ateneo de Davao University | 3 Manresa
JUNE 14, 2017
By: L. Estillore and J. Berguia
It is ironic, but it is true. Labor Relations does
not affect even 5% of the labor force. Most of the labor
force has nothing to do with Labor Relations. Labor
Relations does not grant any more benefits to 95% of
the labor force. But because it is the most high-profiled
part of labor legislation, it occupies 50% of the bar
examination questions. So, that is what we have to
study. Labor Standards which affects all is only between
20%-25% of the bar examination questions. Then the
termination which is another 10%, which when you
become lawyer, you will find out that it is the most
number of cases because the workers will begin to
complain only when he gets fired. So the order of
importance in the bar examination is the reverse – Labor
Relations, Labor Standards, and Termination. Of
course, including Social Legislation.
If you are going to invest in committing to
memory, make sure you begin with the full text. Begin
with the text of the law then you work from there. There
are certain decisions that are marked (?). The
pronouncements are worth committing to memory. Why
is it important for the bar examinations? Because the
moment you put the identifying words, then the examiner
need not read your entire answer. You will be given the
form value of that particular question. On the other
hand, if he cannot find those identifying phrases, kanang
magdali na siya kay hapit naman ang deadline, mao
man na iyang pangitaon. Tapos di siya kakita ana. But
you have the idea but it takes a long time to explain.
Like the concept of “suffered or permitted to
work,” this is in the Labor Code which is 3 to 4 phrases.
Can you imagine? The equivalent of that is an implied
contract because even if you told this individual, “Don’t
work! I don’t want you here in this place.” And he
shows up and you don’t stop him and he continues
working. Are you equivalently absolved of all the
obligations of an employer? You are not! You have
suffered or permitted to work that individual. There is an
amount of work. So, you have to commit that to
memory, with this atrocious English which makes it all
the more easy to memorize. Because it is bad English.
When you study the law, you reach a different
world. There are certain vocabularies specific to that
particular word. You have to know the specific
vocabulary of a particular legal track. You go to Civil
Law, there are so many specific vocabulary. You go to
Criminal Law, there are specific words or phrases
peculiar to it. In a sense, it is unfair because the
examiner kind of dearth of material talent that he has in
correcting your test paper. He has to rely from these
peculiar identifying phrases. And if you cannot produce
it, then he equates this as ignorance on your part of that
particular aspect of law. So, you have to have the
correct vocabulary, correct term or phrases.
In Civil Law you have the diligence of a good
father of the family. In corporation law, you have due
diligence. What is due diligence? And in your
discussion, you must exercise due diligence like that of a
diligence of a good father of the family. What does the
examiner understand by that? Some will say, “Kaning
tawhana, wa na ni nadumog na ni!” You do not talk
about the diligence of a good father of the family in the
same breathe when you talk about due diligence. Those
are two different answers. When you come up with the
word which is also found, it is good to compare. It’s
good to delineate because it makes your understanding
of the law sharper, more accurate, and at the same time
you are even in the breadth of your horizon of
understanding the law.
The first crucial topic (AT LAST!) in Labor
Relations is the Right to Self-Organization.
Is it a constitutional right or is it just a statutory
right? Because time and again, the SC in its many
decisions keeps on saying the constitutional right of self-
organization. Some question. The Bill of Rights is list of
constitutional rights. Why is it constitutional? Because it
doesn’t require implementing legislation to be enforced.
The pronouncements itself in the constitution gives you
the right. There’s no need of the Congress to pass a law
defining those rights. In fact, they are (?) in the
constitution to remove them from the reach of the
plenary powers of the Congress. Congress cannot
legislate it out of their existence because they are in the
Bill of Rights. They are so important that not even the
plenary powers of the Congress can abolish them.
Article III, Section 3 of the Constitution says:
Article III, Sec 3. The right of the people, including
those employed in the public and private sectors, to
form unions, associations, or societies for purposes
not contrary to law shall not be abridged.
The shorter version in the 1935 Constitution is there is
no union. The right of the people to form associations
for purposes not contrary to law shall not be abridged.
In the 1987 Constitution, it includes unions.
Question: Is the right to self-organization which is
defined as the right to form, join, or assist labor
organizations to negotiate and come to an agreement as
to terms and conditions of work. Is that now a
constitutional right? That is the question.
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 LABOR RELATIONS TSN 2017
Fr. Agustin Nazareno’s Lecture
Ateneo de Davao University | 3 Manresa
You add to that the provision of Article IX-B, Section 2(5)
of the Constitution. It says:
Article IX-B, Section 2(5). The right to self-
organization shall not be denied to government
employees.
Does that mean that government employees unions are
the same, without any difference from unions in the
private sector? Because in the constitution itself it says
that the government employee shall not be denied their
right to self-organization.
So the first case you have to look at is the
landmark case of United Pepsi Cola Supervisory
Union vs. Laguesma 1990 which is an En Banc
decision precisely leading this question, which was
penned by Justice Vicente Mendoza. After you read that
case, then you have to read PAFLU vs. SEC 27 SCRA
41 1969. Again, with that Political Law knowledge,
which is the better decision? Because this two arrive at
the same conclusion – that the right to self-
organization is not a constitutional right. But one of
these decisions is very flimsy. Mabaw kayo. But there
is a decision that gives you a better understanding of a
right to self-organization but also the freedom of
association right which is the real constitutional right.
If the right to self-organization is specie of
freedom of association, in other words if you have a right
to form a union, it is because of your general freedom
that you can form an association for purposes not
contrary to law. Why is there a need for a new law?
Giving the people the right to organize. If it were a
species of freedom of association, because freedom of
association goes all the way back to the US Constitution
and which was just tackled by the Philippines in the 1935
Constitution, then we do not need a statutory law if it is a
specie of the freedom of association. To wrestle with
that problem, you need historical perspective.
The beginning of Labor Legislation was the
Industrial Revolution. It created a radical social change.
One of the inventions in Europe was the spin engine.
You make threads sow faster, that the ordinary way to
make a thread, nay ball of cotton dira, hinay-hinayan
nimo ug kuha unya magsakay-sakay dayon ka ug
bisiklet nga way maingnan then imo nang lukot-lukuton.
Naa naman thread or wool. Then you started weaving it
and you make cloth. After you have cloth, you make
garments. Before the Industrial Revolution, families did
it. There was no factory. Now, you cannot have many
members of the family making thread into cloth. Why?
Because you also needed to plant and to hunt. The time
you took to make clothes was time taken away from
raising food. Between the two, which has the priority?
Pagkaon, ha? So in the Middle Ages, before the
Industrial Revolution, people have only one set of
clothes, the one that they marry in. So sa panahon nga
manglaba kay medjo pilit-pilit pa ang imong gisul-ob,
mao sad na imong tigkaligo. So maligo ka, maglaba ka,
maghuwat ka na mag-uga. Mag upo-upo ka dira sa tabi-
tabi. Maghuwat ka na mauga sad na imong sanina.
Can you imagine that kind of day? That is unimaginable!
But that’s how man used to be because there was yet no
mass production.
They say Industrial Revolution was not because
of the development of new technology, true that’s just
one. But what happened when the spinning jenny was
invented? Now, there is this machine that can make
thread and finally cloth. Weaving changed. It’s
mechanized!
So, what happened in England was there was
this great nation movement. The lords, the counts, they
started fencing larger and larger fields and graze more
sheep because they could sell wool because there was
already spinning jenny. Because of the enclosure, the
peasants were driven out. They used to do farming in
those fields. But now because the sheeps has taken
over, they have nowhere to farm. So, what happened to
them? They went to the city to work on this spin engines
and they left the farms. Before, no matter how poor you
are, you had something in your backyard. Naa gyud nay
mga tinanom dinha. Kamote ba, o potato, or unsa dinha
kay imo man gyud na. Manok. Naa kay mga binuhi ba.
Naa tay gamay punuan sa kalamunggay, okra. Sabaw-
sabaw ka dinha, buhi ka. Dili mag bulag imong kalag ug
lawas.
They go to the cities and these cities were just
gloried towns. They are not ready to receive this huge
influx of population. The only way they could survive was
wages. Trabaho sila. That was when economic
historians say, the birth of the new class of people have
neither land nor any material resources by which they
could survive. So they have to hire themselves out. That
was when employment began. Employment and new
relationship. Tiguwang ka na, employed. Bata,
employed. All those in between, you can be employed.
It is only with the revolution of law, economic
revolution, etc. that all these minimum age hiring (were
brought about). Naa nay prohibition sa child labor.
Kaniadto, kanang pang limpyo anang chimney,
gamay man kayo na. Bata ang ipasulod ana. It is not out
of spite or bad judgment or bad will. They were hired. It
was just the better way to do things. These children were
happy because they did not have money. Niadto way
ideology of oppression, exploitation. Go back to history
and look at it with fresh eyes.
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Fr. Agustin Nazareno’s Lecture
Ateneo de Davao University | 3 Manresa
Somebody who looked at it with fresh eyes like
Karl Marx says “This is the most despicable thing that
can happen to man that he hires himself out.” He is not
better than a prostitute. Workers are economic
prostitutes. That was the conclusion of Marx. He made
this Manifesto Workers of the World Unite. For 100
years, people thought Marx was a viable alternative. The
Iron-Curtain-Rule and now, nobody will commit and say
that the Socialist ideology is viable. It is not.
Back to the history of economic revolution. The
game in point is with competition. So many people
looking for work and limited number of job openings.
When you have that, the law on economics applies. Too
many people chasing at the limited number of jobs. The
price of which goes down.
So somebody started to say, let’s be organized.
We should not got to work unless this much wage is
given. In the beginning, it was called a turnout. It is now
called a strike.
The employers ran after these organizations.
How? They ran after them by criminal law. What
precisely in the criminal law? Machinations and
Combinations in Restraint of Trade. You still have that in
the Revised Penal Code, Monopolies and Combinations
in Restraint of Trade.
In other words, these workers were organizing to
restrain the commercial activities of employers. Many of
the judges ruled in favor of the employer, but there is
always a dissenting opinion.
Oliver Wendell Holmes wrote one of the
dissenting opinions. His dissent was very simple. He
said that, if it is alright for a single worker to say “I will
not work unless I get this much (wage)” he stands up
and said “ why is it wrong for everybody else to say “we
will not work unless we get this much (wage)”? that
dissenting opinion gradually became the majority
decision and then the legislators saw to escape from the
machinations clause of the penal code they had to put a
new law – that it would be alright for people to create
unions, labor organizations that can demand certain
terms and conditions for work.
The Supreme Court not so long ago, came up of
a term or a phrase called BLUE-SKY BARGANINING.
What is it all about? When you ask for a “sky” that the
employer cannot possibly afford. That is already bad
faith bargaining and it is already against the law
according to the Supreme Court.
(blue-sky bargaining - making exaggerated or unreasonable
proposals. Source: Arthur A. Sloane and Fred Witney, Labor
Relations, 7th Edition 1991, p. 195.)
Now, in 1950’s, there’s an old case written by a
civilist and a labor expert, JB L. Reyes, what did he say
about blue-sky bargaining? Reyes says, all these things
that labor is now enjoying – minimum wage, 8-hour
workday, to name a few- all these benefits, used to be
impossible at that time when they were demanded. You
cannot make the reasonableness of the demand as the
measure in terms of affordability. Labor’s demand is
necessarily unreasonable because you are breaking
ground, this is not communism.
June 15, 2017
By Manette Jaron
(Father started by giving handouts to the class)
(A new decision,) April 24, 2017 Justice Perlas
Bernabe is using another numbering of the Labor Code
(LC). Perlas Bernabe or his researcher is using another
renumbered LC. In Azucena’s LC it is 294 but in his it is
295 provision on regular employment. 295 in Azucena is
about probationary employment. So, you have to be ___.
How will I ask you, have you read the essay
adopted from US textbook on case analysis by Judge Gil
dela Banda? I suggest you read because case analysis
this time should already be at your fingertips. It is the art
of reading in reverse. You read from the rulings and pull
it up in issue until finally to the facts. Read this. This is
good for your soul. Case analysis, how to analyze that is
a lawyer’s skill! There is a decision now a resolution of
the SC from the ___ cases and the SC finally says en
banc, that the decisions in the past were all wrong. It is
also in April, Roy v SEC en banc ruling. You read that! A
wrong decision.
I hope you are familiar with the legal provisions
that are in the notes that have been compelled both
constitution and statutory which are related to the right to
self-organization.
The right to self-organization is not a specie or
sprout from the freedom of association. Freedom of
association is different from the right of self-organization.
The right to self-organization springs from the protection
in the labor clause. It is not species of the freedom of
association. What is the basis of that conclusion? The
basis for that conclusion is precisely the ruling of the
court in PAFLU v Secretary 1969 27 SCRA 41.
PAFLU is a labor organization. The Bureau of
Labor Relations (BLR), the specific office that has
jurisdiction over labor unions, investigated the union
because of the complaint of some instance and they
found out that the union has never filed the yearly
reportorial requirements: submission of financial
statements; updating the list of its members; updating
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Fr. Agustin Nazareno’s Lecture
Ateneo de Davao University | 3 Manresa
the list of its officers. Never submitted! It was
investigated and they were not able to give a good
excuse for failing to meet their obligations and so the
BLR stripped their license as a union. They cease to
exist as a labor organization because they were stripped
of the registration.
Now, we go to court, at the time it was still the
Court of Industrial Relations (CIR) and what was the
complaint? We are already the representative of the
workers in this particular workplace and you stripped us
of our personality, that is a violation of our fundamental
right to association. The right to associate is guaranteed
in the Constitution. You stripped us of that right! The
Bureau is in violation of our constitutional right of
freedom of association.
The ponente of the decision is Chief Justice
Roberto Concepcion. Remember that name because of all
SC Justices I ___ that name. You go to Sto. Tomas, he is an
alumnus of that. He has a huge portrait, does he deserve a big
portrait larger than ___. Does he deserve it? He more than
deserves it (Aw) because he wrote the famous en banc
decision of the court in ratification cases. WON the 1973
Constitution has been ratified. The 1935 Constitution
prescribes the manner by which it is to be ratified, it is suppose
to be ratified by a secret ballot – general election but what
Marcos did he calls barangay assemblies, the barangay
captain signs and says, Who is against the 1973 Constitution?
Of course nobody will raise. So he certifies that no one is
against to that. On the basis of that, it was the issue WON the
1973 Constitution has been ratified. So somebody filed a
petition for certiorari against the executive secretary who
issued the proclamation. The President never signs it. It is
always his alter-ego. That’s why the case is called, the title of
the case is Javellana v Executive Secretary. It used to hold
the record as the longest decision because there are only 3
decisions in that volume scra, Javella and 2 other small cases.
Remember this rule, the longer the decision, the more
inferior is the opinion because it is a matter of rationalization
that is why the dispositive portion is - as written by the Chief
Justice Roberto Concepcion wrote it, he’s against it, but it is
the whole court, he wrote the decision and he says: There is
now no longer a legal obstacle to holding that the 1973
Constitution is in force and in effect. After he resigned and he
refused to receive emoluments. Mao nay tinuod na huwes. (Fr
made mention of Justice Abad Santos blah blah) What is
principle for if you do not die for it? Huh? (Fr Jokes)
So from the ___ of that background, Roberto
Concepcion decides a___, how does he handle the art
given union because you are violating this office that
stripped us of our registration, is violating our
Constitutional right of freedom of association.
Justice Concepcion says registration is NOT
essential to the exercise of the freedom of association.
You do not need registration to be able to associate.
That is the part of the Constitutional right. What is
freedom of association? The essence of freedom of
association is solicitation. Magdemonstrate ta! kana
solicitation na! And now that can be done physically and
electronically. In fact, juxtaposition, physically, does not
necessarily mean that you are exercising the freedom of
association.
Kamo nangagtigom mo diri kining classroom,
are you exercising your freedom of association? Sakay
kag jeepney huot na kaayo mo sa tanan, makahibaw na
gani ka unsay sabon gigamit niya ug nahibaw na pud
siya na wa ka nigamit ug sabon, are you associated?
NO! Because you are not soliciting one another. Pero
duha ra mo kabuok, nagsulod mo sa sine, niingon ka
manan-aw mog sine, you are exercising your freedom of
association because you are soliciting. Dictators ___
right from the very start that is general order No. 2 of
Marcos. Meetings of 5 or more people are prohibited.
Ngano man mahadlok sila ana? Why do dictators
frowned the right to freedom of association? Because
you solicit! Ang sugod magtigom ta, ang sunod ana
tumpagon nato ang gobyerno na walay hinungdan. That
is freedom of association.
Later you will find out that, before you can
exercise bargaining to enter into terms and conditions of
work for a collective group of workers in an appropriate
family, you have to be registered as an organization. An
informal organization is not allowed, you have to be
registered! So, necessarily, the end product of the right
to self-organization is statutory in nature. It is not
Constitution despite the off-repeated erroneous phrase,
even the SC usually say the Constitutional right to self-
organization. It is not Constitution.
The right to self-organization is a personal right. What
do you mean by personal right?
- You must be an individual, a warm body. If you
are not an individual, you have no right to self-
organization.
- Aside from being an individual, you must be in
the EE-ER relationship. That is why you must be
familiar with the determination of EE-ER
relationship. EE-ER relationship which we took
up in Labor Standards: selection and hiring,
payment of wages, power to dismiss, and power
to control – those are 4 the elements.
So, empleyado man ka, ngano? Empleyado ko
kay naa man eSeS (SSS). That is not the legal answer.
The legal answer is because you complied with 4
elements of the EE-ER relationship. You are an
employee then there is an employer. The employer can
be an individual or a corporation or a juridical person.
But, an employee is only an individual. What if the
employee is not an individual? In that case, you have
management contract, a corporation engages another
corporation to do management and its bidding on
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Fr. Agustin Nazareno’s Lecture
Ateneo de Davao University | 3 Manresa
auxiliaries or otherwise, but you cannot have an EE-ER
relationship if the employee is not and individual and the
___of the right to self-organization is not a juridical
person.
Does a union have a right to self-organization?
- The union has a derivative right to self-
organization, if members therein have the right
to self-organization.
Why? Kung tinuod pana na ang union naay right to self-
organization, bisan kinsay organizer sa bisan unsang
union makasulod dinhi sa ateneo kay gusto siya mu-
organize sa mga empleyado dinhi. Kini siya dili
mabawalan sa guardiya sa ateneo, kay ngano man? Kay
I have the right to self-organization. Kung musod siya,
mapugngan ba siya? Dili siya mapugngan kay di man
siya empleyado, wa man siyay EE-ER relationship. Wa
man. Pero di siya kasud. Union baya ko, oh Union lagi!
As far as ___ wa kay labot. I do not know you ___. Clear
ideas.
How many are needed to form union? To
exercise the right to self-organization, how many are
needed? Can you do it alone? Suppose you are in the
workplace and you are the only employee; Let me tell
you, the red letter of the law does not provide for any
minimum number of members before you can form a
union.
The reason: If that is the case, then it is discriminatory to
workplaces with less than that number. Ibutang ta, you
are an employee of a doctor specialist. Unsa man ka?
Nurse. Then at the same time, you are also the
Receptionist. Can that lone, single, solitary worker form
a union vis-à-vis his employer? Can he form a union? If
you say no, then you must find a basis here in the LC.
But there is no prohibition for a single employee
workplace from becoming ___ and exercise his right to
self-organization. You ask a labor federation to represent
you. First, you become a member and then the labor
federation will inform the employer that you are now
represented by the labor organization that is registered
and then there is a collective bargaining. The union will
bargain for you as to the terms and conditions of work.
That’s not impossible diba?
Have you heard of the Private Nurses
Association of the Philippines? They are association of
nurses who do private care. They are registered with the
DOLE and they represent their members. Nurse ka you
___ with a patient who is at home, ang facility sa pang-
comatose naa sa iyang balay, kanang kuan, dili na
dependent needs care ___. They are members of that
and they represent you. They represent you in looking
for work, in staying in work, in collecting work, in
membership with the SSS, etc. And if they wish they
can enter into a practical collective bargaining because
they will say we will not release to you a nurse if you will
pay them less than of this amount. Mao na! That is why
most caregivers are not nurses. What are they? Midwife.
Mao ilang pangkwaon aron dili myembro anang Private
Nurses Association of the Philippines. Alright! Private
individual and regardless of the ___ in the workplace.
Now, the right to self-organization according to
Art. 9B Sec. 2(5), says:
Article IX-B, Section 2(5). The right to self-
organization shall not be denied to government
employees.
What is the essence of the right to self-organization?
The essence to the right to self-organization is
collective bargaining. That is the essence.
Coverage Art. 252 which used to be 243 (LC),
Art. 252. Coverage and employees’ right to self-
organization. All persons employed in commercial,
industrial, and agricultural enterprises and in
religious, charitable, medical, or educational
institutions whether operating for profit or not, shall
have the right to self-organization and to form, join,
or assist labor organizations of their own choosing
for purposes of collective bargaining. xxx
So, when you exercise the right to self-
organization, the organization you join must be a partner
involve for collective bargaining. If it is not, you are not
exercising your right to self-organization. What are you
exercising? Freedom of association. That is the second
sentence of Art. 252.
Art. 252. Coverage and employees’ right to self-
organization. Xxx Ambulant, intermittent, and
itinerary workers, self-employed people, rural
workers and those without any definite
employers may form labor organizations for their
mutual aid and protection.
These are called Workers’ Association. Take a
look at implementing rules, there is a difference between
a labor organization and a workers’ association.
Workers’ associations exercise freedom of association
because it is for mutual aid and protection. Give an
example of mutual aid and protection. You join together
or you are workers and you form what is called a
mortuary fund. You make small contributions therein
every month and your association has rules. If a member
dies, then he collects this much because he is a
member. That is why it is called a mortuary, that is the
kind of association where you would like to continue
giving that you do not want to be the beneficiary of the
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Ateneo de Davao University | 3 Manresa
association because that is the end of kay patay naka
(okay fr). So, that is for mutual aid and protection. It is
not a labor organization because it is not for the purpose
of collective bargaining.
Art. 291 (according kay fr pero sa handouts 219) letter
g:
Article 219 (g)
Labor organization means any union or
association of employees which exists in whole
or in part for the purpose of collective bargaining
or of dealing with employers concerning terms
and conditions of employment.
Take note that labor organization refers to the
right to self-organization. What makes a labor
organization? Not its membership, it is its purpose. The
purpose must be in whole or in part it must be collective
bargaining.
That is why we come to this landmark case of
Alliance of Government Workers vs. Minister of
Labor and Employment when the SC says in the
public sector, there is no collective bargaining. This
is penned by Jugo Gutierrez, En banc decision. The SC
says, in government employment, it is the legislature
and, where properly given delegated power, the
administrative heads of government which fix the terms
and conditions of employment. And this is effected
through statutes or administrative circulars, rules and
regulations, not through collective bargaining
agreements.
In the government, there is no collective bargaining, is
there a right to self-organization?
Remember there is this pronounced provision
that the right to self-organization shall not be denied to
government employees but, in actual, it is denied. There
is no collective bargaining. What is needed is just a
simple legislation to grant government employees right
to self-organization. They have amended several
provisions in the Constitution. What provisions?
Art. XI, Sec. 1 - Public office is a public trust.
Public officers and employees must at all times
be accountable to the people, serve them with
utmost responsibility, integrity, loyalty, and
efficiency, act with patriotism and justice, and
lead modest lives.
So, if you are the government official, are you
accountable to your superior? Yes, statutorily but
constitutionally, ultimately, you are accountable to the
people. The people entrust you with certain functions.
How? Thru appointment or election. You are given
certain duties and you must account to that to the people
from the highest position – President of the Philippines,
to the lowest – Janitor. You are accountable to the
people. That’s what the Constitution says. That is why
there cannot be a collective bargaining because unlike in
the private sector, employment is not a property right. It
is a public trust. ___ That’s why you cannot sue to obtain
public office. You can only sue if somebody takes over
you illegally, your office.
In private sector, if the employer illegally
dismisses you, you can sue. In government sector, if
Congress passes a law abolishing your office, that’s the
end! Can you sue? I have a right, I spent the best years
of my life here and all of a sudden it is gone. Goodbye. It
is a public trust.
So, it is important to distinguish government and
private sector. If it is offices, no problem. National office.
But when you come to GOCCs, then there is a problem.
In Lumata v NLRC, it is now clear that it must be
GOCCs with original charter. But the problem is, there
are many exceptions. What are the exceptions? There is
the charter test.
According to the SC, the test to determine
whether or not a GOCCs is government or private sector
is does it have an original charter?
- If it does, then it must be government.
- If it does not have, then it must not be a
government.
But we come to this case of the Philippine Society
for the Prevention of Cruelty to Animals vs. COA.
Philippine Society for the Prevention of Cruelty
to Animals vs. COA.
En banc by Austria-Martinez
Philippine Society for the Prevention of Cruelty to
Animals was created by Act No. 1285, January 19,
1905.
Can you imagine that? There was already this
government corporation, created in 1905. Nag-una
pa kaysa sa ___. Why did COA get in? It all started
with National Geographic, because they featured
the dogs that were sold in a particular section in
Baguio City public market. The Igorots have a
penchant for dog meat. Not dog food, dog meat.
And National Geographic was just a gasped. All
these dogs, man’s best friend. So, they made a
campaign in the US to rescue these dogs. They
have so much money and they brought it to the
Philippines and somebody told the COA, that is a
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GOCC because it was created by law Act No.1285,
way back in 1905. So, the COA went in and wanted
to audit those funds because they are public funds.
Of course, the Society resisted – we never got any
appropriations from Congress, why all of the sudden
now are we to account for our funds? They went all
the way to the SC.
The main argument of COA is there is a charter
so the charter test is complied with, therefore, it is
government.
What did the SC say? The SC says, the charter
test is a test that is applied prospectively from the
1987 Constitution because the with or without
original charter test appeared only in 1987
Constitution. So, it is applied prospectively, it does
not avail of retrospective application. PSPCA is a
private corporation. All its employees are not under
the Civil Service but they are under the LC.
You read the other interesting cases, the last
one of which is again an en banc decision, Liban v
Gordon 593 SCRA 68 (2009) which you took up in
Public Corporation. This is the date. There is such a
corporation that is neither private nor public. The last
resolution of that issue whether it is private or public, the
SC says, necessarily the National Red Cross is neither
private nor public.
It requires these two aspects to continue to function.
- It is public, because it is the first responder to
victims of natural calamities or even man-made.
- It is private because in terms of man-made
calamities, where a neutral force is necessary to
be able to reach to the victim that’s why Red
Cross must not be a government.
It must be neutral. So, male or female ahh so there is a
third gender, the National Red Cross.
Now, the law covering right to self-organization in the
public sector is EO 180, please read it and be familiar.
What is the terminology in the public sector? What is
equivalent in the private sector. Because once again, we
are in the classification of workers.
EXECUTIVE ORDER NO. 180
June 1, 1987
PROVIDING GUIDELINES FOR THE EXERCISE
OF THE RIGHT TO ORGANIZE OF
GOVERNMENT EMPLOYEES, CREATING A
PUBLIC SECTOR LABOR-MANAGEMENT
COUNCIL, AND FOR OTHER PURPOSES
In accordance with the provisions of the 1987
Constitution, I, CORAZON C. AQUINO, President
of the Philippines, do hereby order:
I. Coverage
Sec. 1. This Executive Order applies to all
employees of all branches, subdivisions,
instrumentalities, and agencies, of the Government,
including government-owned or controlled
corporations with original charters. For this
purpose, employees, covered by this Executive
Order shall be referred to as "government
employees".
Sec. 2. All government employees can form, join or
assist employees' organizations of their own
choosing for the furtherance and protection of their
interests. They can also form, in conjunction with
appropriate government authorities, labor-
management committees, works councils and other
forms of workers' participation schemes to achieve
the same objectives.
Sec. 3. High-level employees whose functions are
normally considered as policy-making or
managerial or whose duties are of a highly
confidential nature shall not be eligible to join the
organization of rank-and-file government
employees.
Sec. 4. The Executive Order shall not apply to the
members of the Armed Forces of the Philippines,
including police officers, policemen, firemen and jail
guards.
II. Protection of the Right to Organize
Sec. 5. Government employees shall not be
discriminated against in respect of their
employment by reason of their membership in
employees' organizations or participation in the
normal activities of their organization. Their
employment shall not be subject to the condition
that they shall not join or shall relinquish their
membership in the employees' organizations.
Sec. 6. Government authorities shall not interfere in
the establishment, functioning or administration of
government employees' organizations through acts
designed to place such organizations under the
control of government authority.
III. Registration of Employees' Organization
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Sec. 7. Government employees' organizations shall
register with the Civil Service Commission and the
Department of Labor and Employment. The
application shall be filed with the Bureau of Labor
Relations of the Department which shall process
the same in accordance with the provisions of the
Labor Code of the Philippines, as amended.
Applications may also be filed with the Regional
Offices of the Department of Labor and
Employment which shall immediately transmit the
said applications to the Bureau of Labor Relations
within three (3) days from receipt thereof.
Sec. 8. Upon approval of the application, a
registration certificate be issued to the organization
recognizing it as a legitimate employees'
organization with the right to represent its members
and undertake activities to further and defend its
interest. The corresponding certificates of
registration shall be jointly approved by the
Chairman of the Civil Service Commission and
Secretary of Labor and Employment.
IV. Sole and Exclusive Employees'
Representatives
Sec. 9. The appropriate organizational unit shall be
the employers unit consisting of rank-and-file
employees unless circumstances otherwise
require.
Sec. 10. The duly registered employees'
organization having the support of the majority of
the employees in the appropriate organizational
unit shall be designated as the sole and exclusive
representative of the employees.
Sec. 11. A duly registered employees' organization
shall be accorded voluntary recognition upon a
showing that no other employees' organization is
registered or is seeking registration, based on
records of the Bureau of Labor Relations, and that
the said organizations has the majority support of
the rank-and-file employees in the organizational
unit.
Sec. 12. Where there are two or more duly
registered employees' organizations in the
appropriate organizational unit, the Bureau of Labor
Relations shall, upon petition, order the conduct of
a certification election and shall certify the winner
as the exclusive representative of the rank-and-file
employees in said organization unit.
D. Terms and Conditions of Employment in
Government Services
Sec. 13. Terms and conditions of employment or
improvements thereof, except those that are fixed
by law, may be the subject of negotiations between
duly recognized employees' organizations and
appropriate government authorities.
VI. Peaceful Concerted Activities and Strikes
Sec. 14. The Civil Service laws and rules governing
concerted activities and strikes in the government
service shall be observed, subject to any legislation
that may be enacted by Congress.
VII. Public Sector Labor-Management Council
Sec. 15. A Public Sector Labor Management
Council, hereinafter referred to as the Council, is
hereby constituted to be composed of the following:
1) Chairman, Civil Service Commission
Chairman
2) Secretary, Department of Labor and
Employment Vice Chairman
3) Secretary, Department of Finance
Member
4) Secretary, Department of Justice
Member
5) Secretary, Department of Budget and
Management Member
The Council shall implement and administer the
provisions of this Executive Order. For this
purpose, the Council shall promulgate the
necessary rules and regulations to implement this
Executive Order.
VIII. Settlement of Disputes
Sec. 16. The Civil Service and labor laws and
procedures, whenever applicable, shall be followed
in the resolution of complaints, grievances and
cases involving government employees. In case
any dispute remains unresolved after exhausting all
the available remedies under existing laws and
procedures, the parties may jointly refer the dispute
to the Council, for appropriate action.
IX. Effectivity
Sec. 17. This Executive Order shall take effect
immediately.
Done in the City of Manila, this 1st day of June, in
the year of Our Lord, nineteen hundred and eighty-
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seven.
Managerial, supervisory, rank-and-file,
confidential workers - that is the classification of workers
in terms of labor relations.
You have come across of classification of
workers in labor standards managerial, supervisory
employees which are also managerial. Confidential
employees are in labor standards, members of the
managerial staff. Then you have the rank-and-file.
How about probationary workers? Probationary
workers are classification as far as tenure is concern, not
labor standards, not labor relations.
So klaro imong huna-huna, what is the basis of
this classification? Sometimes there are examiners who
are basically evil. Probationary employee, is he entitled
to the minimum wage? They are setting you back to your
pedestrian state of mind. Wa man na siyay minimum kay
probee mana siya. That is not the legal answer! You are
entitled to the minimum wage if you are time worker,
whether you are casual or probationary, because that is
the classification for purposes of tenure. If you are a time
worker, you are entitled to minimum wage. Be careful!
And there are many classifications. So many that even
the DOLE is lost.
In the handbook of the DOLE, it says, the
kasambahay has the right to self-organization.
Can you imagine the kasambahay, domestic,
they have the right to self-organization? One subdivision,
they will form a union? Unya magstrike sila dala silag
placard. Unya pagkahuman mubalik sila inig matug na.
Why? Because the employer is obligated to provide
board and lodging to the kasambahay. Daghan gubot
ana, daghan mu-resign ana inig ana mahitabo. The law
is actually silent, kasambahay, there is no provision in
the kasambahay law that grants the kasambahay the
right to self-organization and I’ve read it for a couple of
times, gipangita gud nako hain man niani sa
implementing rules sa DOLE na naa man right to self-
organization? There is no provision granting. So, look
back. Draw a diagram be familiar with the terminologies,
the vocabulary, the right to self-organization.
JUNE 28, 2017
We are still in the Right to Self-Organization.
They say it is a personal right, so we are talking
primarily here of individuals. You know that persons
can either be (1) individuals or (2) juridical persons.
What is a person?
Under the law, only persons are subject to rights and
(limitations?). If we say right, it must be vested
somewhere. It cannot be something that is floating in the
air. It is either vested in a (1) natural person or individual;
or it is vested in a (2) juridical person.
However, that is not a requisite for a right to exist,
because no right exists other than in a person. That is
why a right is definitive on a person. It defines a person.
It is part and parcel of the definition of a person. We
don’t lose it.
Will a person have a right to self-organization?
Theoretically, you can, provided you are employed. That
is a requisite now. Employer-employee relationship is
a requisite. But to be a person is not a requisite. It is
part and parcel of such right.
Why is employment a condition to the right of self-
organization?
It is because the right to self-organization is tied to a
connected body. The right to self-organization is the
right to form, join, or assist a labor organization of
your own choice. Nobody imposes it on you. You
chose it.
The definitive characteristic of the term ‘labor
organization’ is not the membership. It is not a labor
organization because it is made up of employees of the
same employer. It is a labor organization because it is
for the purpose, in part or in whole, of a collective body.
Article IX B Sec 2 (5). The right to self-organization
shall not be denied to government employees.
IT IS DENIED! That is one of the untruths of the
constitution. The Supreme Court already declared it so.
There is no collective bargaining in government
employment. That was pronounced by the court, most
specifically under the pen of Justice Gutierrez, in the
case of Alliance of Gov’t Workers v. Minister of Labor
and Employment, 124 SCRA 1 (1983). This is because
whatever it is that is agreed in the private sector, is
arrived at in the public sector by the law. It is the law that
dictates salaries.
As an aside, the highest membership that
organized labor had in the United States was in the late
1950s. That was the biggest number of organized labor
in the US. From there on, it went down until they
allowed, in the early 1970s, normal employees to form
the collective bargaining. So in the US, public employees
can form labor organizations, and they can bargain.
What is happening now? They are thinking of repealing
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that law. Why? Because more and more the private
sector’s organized labor is becoming less and less.
Where is organized labor growing in the United
States?
In the public sector. Can you imagine, the police, the
firemen, can form a labor union? Ang wala na lang mag-
union kay ang members of the armed forces nila. The
police, even the doctors and nurses of their public
hospitals, can form unions and they can go on strikes.
Who represents the employer which is the
government?
The managers of the government. Since most of them
are elected officials, they are not permanent. So the
wages have escalated beyond control. There are so
many local governments now saddled with collective
bargaining wages that have gone bankrupt. They cannot
anymore pay the salaries (ie: Orange County, California,
Southern California—they all went bankrupt!) They made
government the same as the private sector, as if the
problem of wages can be solved by collective
bargaining.
If you think wages can’t be solved by collective
bargaining, you have a lot of educating to do, because it
can. Just look at the United States.
In the private sector, if you arrange the classification of
employees from the highest to the lowest, you have the
classification under labor relations.
In the public sector, they call it:
(1) HIGH-LEVEL;
(2) CONFIDENTIAL;
(3) RANK-AND-FILE; and
(4) SPECIAL.
Why is it a different classification?
Firemen are still under the PNP, but they are a separate
unit. Jail guards are under the Department of Justice, yet
they are singled out by EXECUTIVE ORDER NO. 180:
“Providing Guidelines For The Exercise Of The Right To
Organize OF Government Employees, Creating A Public
Sector Labor-Management Council, And For Other
Purposes.” They are absolutely prohibited from
forming a union; from forming a labor organization.
You have to read the decided cases provided in
your notes. Managerial Employees, the Supreme Court
has said, “You are a managerial employee not because
of your title or appointment. You are a managerial
employee by what you do; the activity for which you are
given wage to perform. If that activity is characterized by
the exercise of discretion, then you are a managerial
employee.” Even if you are titled as ‘manager,’ tanan
mga tao mag tawag sa imo “Ger! Ger!” kay manager ka,
dili ka managerial employee if you do not exercise
judgment.
The supervisory employee has the effective
power to recommend. This is what is definitive of the
supervisory, the effective power of recommending, the
hiring, the firing, or the disciplining of the employee.
What under LABOR STANDARDS LAW, is a
managerial employee, and therefore not entitled to
overtime pay, not entitled to premium pay, et cetera, yet
considered managerial employee?
In LABOR RELATIONS, managerial employee
is narrower. Managerial employees are only those who
are managing a department thereof or of several people,
exercising independent judgment, and members of the
managerial staff. Members of the managerial staff are
normally confidential employees.
In the case of Planters Bank Supervisors
Chapter v. Secretary of Labor (1994), this is where the
union, in filing a Petition for Certification of Election en
banc, for supervisors, they wanted to include the branch
manager, the branch assistant manager, the branch
cashier, and the branch accountant. Tanan banko
officers of the branch, there are normally 4: the branch
manager, the assistant branch manager, the cashier,
and the accountant. At least 2 of them must sign. To
withdraw something from the bank, it must be cleared by
at least 2 of these people. At any one time, there must
be 2 in the branch. Manager pa man na sila kaya ngano
mag ?.. man sila ug supervisory?
That was the argument of Planters Bank. They
are managers! They have a lot of discretion. They
exercise independent judgment. Why are they included
in the supervisors’ certification of election?
The SC said that it is decided with the union. It is
clear. Their judgment is less than independent. They
cannot invent new policies. They are just following what
is already decided upon. They cannot hire people. They
cannot fire people. The firing is done from the
headquarters. So they are not true managers.
Under LABOR RELATIONS, a branch manager of a
bank is not a manager.
But then the SC says they cannot be allowed to
join because they are confidential employees, not
because they are managerial because they are not, but
because they are confidential employees.
These are the same reasons here. This one has
the fullest right to self-organization. This one, he cannot
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be allowed because he has the same inhibition as the
managerial employee.
Managerial employee is not allowed to join the
labor organization because he acts for and in behalf of
the employer.
If you are the one acting for and in behalf of the
employer, and you bargain with that employer, it’s like
bargaining with yourself. You cannot bargain with
yourself. That is a conflict of interest. Lingkod ka dinhi,
you are acting for and in behalf of the employer.
Just like in contracts, again, people here in the
Philippines do not see any irregularity. Kanang
mamaligyag yuta, ahente sila sa buyer. Unya pangutan-
un nila ang seller “pila bay ihatag nimog commission?”
The interest of the buyer and the interest of the seller are
irreconcilable. The seller wants the highest price. The
buyer always wants the lowest price. Kakitasila’g sign
dinha for sale kining yuta. Unya mungadto sila sa seller,
‘naakoy buyer, pila may imong ihatag na commission
nako?’ Tan-awana. Tagaan siyag commission sa seller,
ahente siya sa buyer. They do not see any contradiction
there. America napriso ka ana, conflict of interest na,
and yet in the Philippines, that is common, ordinary.
Now, this is the employee. This is the labor
organization. This is the employer. When you talk about
the right to self-organization, you talk about first when
can he (employee) assert this right? I want to join you, I
have chosen you and he (labor organization) cannot say
no.
When is joining a union optional? In other words,
he can exercise that right and he can accept. Is there
such a thing as ‘I join you and you cannot deny me that
*”? The employer, when can he say ‘I object in you
joining that labor organization.” When does that happen?
The employer also says ‘You must join the union’. When
does that happen? That’s how you try to understand the
pieces of the right to self-organization.
If you are the employee of the manpower
agency that has a contract with the employer, because
he has a contract of maintenance with the employer, can
he say ‘I will join the labor organization of the employees
of the employer’? He cannot. The employer can say ‘you
cannot’. What is the reason? There is no er-ee
relationship between this (employee of the manpower
agency) and this (employer) because this (employee of
the manpower agency) is the employee of the manpower
agency and the manpower agency is connected with the
employer only by a contract.
Supposed this employee is a rank-and-file
employee but is in a probationary stage. He is not yet a
regular employee and this labor organization that is now
with the employer is a labor organization of regular
employees of the employer, and the employee says ‘I
can join the labor organization.’ You check does he have
er-ee relationship with the employer? Yes. Second, this
labor organization, what does it represent? It represents
rank-and-file employees that are regular. Is he regular?
He is not yet regular. He is probationary. Does he belong
to this labor organization? Can he join? If the labor
organization says you can join, you can join, but he is
not included in the agreement between these two (labor
organization of regular employees and the employer),
the CBA, because he is not part of the principal that is
what is *, he is only probationary.
The new provision now says if there is
somebody that should not belong to the bargaining unit,
he is just deemed excluded. That’s what the law says.
So for other purposes other than collective bargaining,
he can benefit by being a member of the labor
organization like representation if he has a case, if the
labor organization has a mortuary fund, he can benefit
from it, but as to collective bargaining, he is outside
because he is not yet regular. He is probationary.
So in that instance, the labor organization can
say ‘member ka total eventually if you become regular
you will be a full member and you will be covered by the
collective bargaining agreement’. But the labor
organization can also say ‘you cannot join because you
are not yet regular’. It holds the key. In other words,
membership is only directory, it cannot be mandatory.
Why do I say that? It is important to understand
that because one of the provisions in the Labor Code
Article 291 says “any employee whether employed for a
definite period or not, shall, beginning on his first day of
service, be considered an employee for purposes of
membership in any labor organization”.
Article 291.
(c) Any employee, whether employed for a definite
period or not, shall, beginning on his first day of
service, be considered as an employee for purposes
of membership in any labor union.
It is assumed that you are within the bargaining
unit to be able to say that ‘I will be a member of the
union and the union cannot do anything about it.’ If you
are outside the bargaining unit, you cannot insist on
membership of the labor organization.
Again, take a look at Article 255 - effect of
inclusion as members of employees outside of the
bargaining unit.
Article 255. Effect of Inclusion as Members of
Employees Outside the Bargaining Unit. - The inclusion
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as union members of employees outside the
bargaining unit shall not be a ground for the
cancellation of the registration of the union. Said
employees are automatically deemed removed from
the list of membership of said union.
That doctrine is reiterated in the latest case
which I gave you, the case of what is that? What’s the
title? (Some students are murmuring UST)
What is the content of the right to self-
organization? What is included in the right to self-
organization?
1. The right to form, join, or assist labor
organizations of their own choosing for
purposes of collective bargaining. That’s 252
first sentence.
Article 252. Coverage and employees’ right to self-
organization. All persons employed in commercial,
industrial and agricultural enterprises and in religious,
charitable, medical, or educational institutions, whether
operating for profit or not, shall have the right to self-
organization and to form, join, or assist labor
organizations of their own choosing for purposes of
collective bargaining. Ambulant, intermittent and
itinerant workers, self-employed people, rural workers
and those without any definite employers may form labor
organizations for their mutual aid and protection.
2. Is the right not to join in any union. That is not
explicitly stated in the Labor Code. Where do we find it?
We find it in the celebrated case of Victoriano v.
Elizalde Rope Workers’ Union 1974 case reiterating
Abo et. al. v. PHILAME (KG) Employees Union 1965
quoting Rothenberg, Labor Relations.
Why is this important? Because if only one union
petitions for an election to be chosen by the employees
as the bargaining representative and he is only one, it
cannot say ‘ah ako ra bitaw isa ah ako nay
murepresent’. No. There is an election always. The
choice is do you want this union or do you want no union
because the right to self-organization includes the right
not to join. That is the basis.
3. Now, finally you have this new right under
Article 247 – the right to vote by 2/3 majority of its
general membership to cancel the registration of the
union in the meeting duly called for the purpose. Take
note ha, with or without cause.
Article 247. Voluntary Cancellation of Registration. – The
registration of a legitimate labor organization may be
cancelled by the organization itself: Provided, That
at least two-thirds of its general membership votes,
in a meeting duly called for that purpose to dissolve
the organization: Provided, further, That an
application to cancel registration is thereafter
submitted by the board of the organization, attested
to by the president thereof.
Even if there is no cause, the union has not
done anything wrong, members can cancel their
registration by 2/3 vote because that is part of the right
to self-organization. That’s new in the latest amendment
of the Labor Code.
4. You have the right to petition for cancelation
of union registration and/or decertification of the union
on grounds provided for by law. This is now for cause –
246. And you can add here not just Air Philippines case
(Air Phils Corporation v. BLR), but the new case I
gave you.
And now there are just specifically 3 grounds for
the cancellation of union registration. What is that?
1. Misrepresentation, fraud, non-disclosure in
the registration papers of the union and
adoption of the union by the members;
2. Misrepresentation, fraud, non-disclosure in
the minutes of the election of union officers;
3. Cancellation of union registration that is
provided by Article 247.
So, the content of the right to self-organization are those
enumerated in your notes.
Now, later on we will find out that at least 25% of
those in the bargaining unit, even if they are not in a
labor organization, they can file a petition []. That is part
of the right to self-organization.
Now, remember that the definition of a
“confidential employee” is confidential as to labor
relations data. So, you must be handling confidential
information as to labor relations data. You might be an
engineer, considered a supervisor in level, and you are
the ones who holds instruction from Atlanta, Coca-Cola,
for the mixing of the syrup, Coke syrup, that it finally find
its way into the Coke bottles or cans.
Karon, wa naman ang sikreto. You can get the Coca-Cola and
subject it into all sorts of chemical examinations. And you will
really find that composes the Coca-cola. But then that would
be very expensive… Coca-cola and Pepsi-cola they get from
Coke Atlanta. But Coke Atlanta does not ship it to them. They
ship it to Coca-Cola Export-Import Corp. of the Philippines,
which has 50 corporation in the Philippines. But it is just an
empty corporation, for purpose of holding ownership to the
patent of a syrup of the Coca-Cola. Where is the office of the
Coca-cola export-import? Where is the office? It’s in the post-
office branch of Sycip-Salazar-Gatmaitan Law Office. That is
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the bread and butter of big law firms – warehousing intellectual
property. (Continued talking about patent registration of Coca-
Cola) For every bottle, they pay to the holder of the patent. So
who is the holder of the patent? Here, the Coca-Cola Export-
Import Corp. In turn, that corporation remits the profit to this
Coca-Cola Atlanta.
Na ikaw ang engineer. Ipa-hilom-hilom na nila.
Pirmiro ang ihuwad nimo kining puti nga balde, unya
sunod kini na sad blue, unya kana na sad… You keep.
You are the actual possessor of the industrial secret. Are
you are a confidential employee? For purposes of labor
relations, you are not! Because it has no labor relations
connection. You are not a confidential employee. Only
those that are in possession of labor relations related
data are considered as confidential employees.
You look at that 2010 case Tunay na Pagkakaisa ng
Manggawasa Asia Brewery vs Asia Brewery Inc.
Then you also look at the Samahan ng Manggagawa
sa San Miguel Corp. because they too have their
confidentiality issues.
Because accountant is considered as
confidential, but the paymaster of the rank-and-file is not
considered a confidential employee. Why? Rank-and-file
have the same salaries. But if you are the confidential
payroll officer of managerial employees, that is
confidential data related to the provisions that you
cannot be a member of a labor organization.
So, it must be labor relations related data.
Now, what I want to point out to you is you go to
Executive Order 180 and you get the equivalent terms.
A “labor organization” is always formed in relation to a
bargaining unit. For the meantime, let us just say that a
“bargaining unit” is an association of employees in the
actual workplace that have a community of interest for
purposes of collective bargaining.
Di ka mahimo nga manager ni siya, supervisor
ni siya, confidential ni siya, niya rank-and-file, nya mag-
union mo, lahi-lahi man moug interest. Ang mga
managerial employee, they do not talk about the basic
salary, they talk about a package. So lahi. Ang
probational nga employee, lahi pud siyag interest. Ang
iyang damgo nga ma-regular siya... Ugma muatubang
mo sa employer nga lahi-lahi inyong interest. Paawayun
lang mo. Pasabungon lang mo sa employer. Moingon
ang employer, I will grant regular status unya muingon
ka, ayaw pataas-taas ugs weldo. O di mag-away na mo.
So, it’s important that there is an aggrupation where
there is a community of interest. So, you do not exercise
the right of self-organization in a vacuum. It is always in
a context. And there is an equivalent for that in the public
sector.
a. In the public sector, it is an employee unit.
b. In the private sector, it is appropriate
bargaining unit.
You have equivalents. So pay attention in the
terminologies. Go to the executive order. You read the
executive order. And you mark the terminologies.
And then you go through the cases of “what is
government; what is not government”. What is crucial is
government-owned and controlled corporation
(GOCC). That is what is difficult, GOCC, because there
are several recent rulings.
Alright, so we will now go to “Labor Unions”.
This is now the organization. I told you “Unions” is a
generic term. Specific terms are labor organization,
workers’ association, workers’ foundation, whatever you
want.
The only ones who can go to collective bargaining are
labor organizations. A workers’ association cannot, even
though they are provided for in the Labor Code. Take
note, that there are references to the Implementing
Rules.
Definition of “Union”
BOOK 5, RULE 1, IRR
(zz) “Union” refers to any labor organizations
in the private sector organized for collective
bargaining and for other legitimate purposes.
“Union” refers to labor organization in the private sector
organized for collective bargaining or for other legitimate
purposes. It should not be “and”, it should be “or”. Why
do I say that? Because if it is “and”, it would be in
contradiction with the red letter of the law. What does the
red letter of the law say? Let me refer you to “Coverage”
provisions.
Article 252 [supposed to be ART. 253], the 2 sentences
here.
ART. 253, LC. COVERAGE AND
EMPLOYEES’ RIGHT TO SELF-
ORGANIZATION – All persons employed in
commercial, industrial, and agricultural
enterprises and in religious, charitable, medical,
or educational institutions whether operating for
profit or not, shall have the right to self-
organization and to form, join, or assist labor
organizations of their own choosing for purposes
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Fr. Agustin Nazareno’s Lecture
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of collective bargaining. Ambulant, intermittent
and itinerant workers, self-employed people,
rural workers and those without any definite
employers may form labor organizations for their
mutual aid and protection.
The 1st sentence refers to “Right to Self-Organization”.
The 2nd sentence refers to “Freedom of Association”.
First sentence: “All persons employed into commercial,
industrial, and agricultural enterprises, and in religious,
charitable, medical, or educational institutions, whether
operating for profit or not, shall have the right to self-
organization and to form, join, or assist a labor
organization of their own choosing for purposes of
collective bargaining.” That is “right to self-
organization”.
The second sentence is “freedom of association”:
“Ambulant, intermittent, itinerant workers, self-employed,
rural workers, and those without any definite employers
may form labor organizations for their mutual aid and
protection.” Kini dili unta ni ‘labor organizations’, ‘labor
unions’ unta ni kay labor organization is always for the
purpose of collective bargaining. Tan-awa diri sa
definitions sa law gyud, “labor organization”, Letter (g),
Article 219.
ART. 219, LC. DEFINITIONS. – XXX
(g) “Labor organization” means any union or
association of employees which exists in whole or
in part for the purpose of collective bargaining or of
dealing with employers concerning terms and
conditions of employment.
“Labor Organization”means any union (so union is a
generic term) or association of employees, which exists
in whole or in part, for purpose of collective bargaining,
or of dealing with employers concerning terms and
conditions of employment.
So, when you go to 252 [Must be 253], the first
sentence is “labor organization”. Pagpangutan-an ka na
sa ikaduhang sentence, this is “for any purpose, mutual
aid or protection, which is for purposes not contrary to
law”, no longer collective bargaining.
Now, can a labor organization also have for its
purpose mutual aid or protection? Yes, because, for as
long as there is collective bargaining, you can have other
additional purposes. A labor organization is not solely for
collective bargaining. It can be only partly. It can engage
in any other purposes, for mutual aid and protection of
its members. But there must be collective bargaining…
So, if you will contrast the first sentence of Article
252 [253] and the second sentence, then you will get the
distinctions of a labor organization and a workers’
association.
a. As to the existence of employer-employee
relationship, labor organization must have
employer-employee relationship. Workers’
association did not have.
b. As to its purpose, must include collective
bargaining for the organization, for workers’
association, it can be mutual aid and protection,
and no collective bargaining.
c. As to formation, it can be formed after 239, 240,
and Workers’ Association, the specific and all
form of formation of representation is provided
for under the implementing rules, Book 5, Rule 4
and Rule 3, Section 2 of the IRR.
Now, only the labor organization can petition for
certification of election, the workers’ association cannot
petition for certification of election.
Now, you go the provisions again. There is the first word
in the implementing rules. Rule 1, Book 5, Section 1.
What is an affiliate?
RULE 1, BOOK 5, SECTION 1
(a) “Affiliate” refers to an independent union
affiliated with a federation, national union or a
chartered local which was subsequently granted
independent registration but did not disaffiliate from
its federation, reported to the Regional Office and
the Bureau in accordance with Rule III, Section 6
and 7 of these Rules.
So, a ‘labor organization’ can be registered as an
“independent union” under Article 239 or as a charter,
a branch (the technical term is charter), of a bigger
union. That is a federation.
To be a charter, all you need is to be issued by
the federation a “Charter’s Certificate”. The moment
you are issued a charter’s certificate, you now have
provisional personality to file a petition for certification
election. But that’s the only thing that you can do as a
person. You cannot yet defend your members as
represented in court, because your personality is limited
to filing a petition for certification election.
When do you file full personality? The moment
you submit the [] requirements in the Bureau of Labor
Relations, the organizational meeting when you adopted
your Constitution and By-Laws (CBL), copies of your
CBL. If you are too lazy to constitute your own CBL, you
will just say that our CBL is identical with the CBL of a
corporation. And if you have been in existence for more
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Ateneo de Davao University | 3 Manresa
than one year, you submit financial statement, i.e.
balance sheet and profit and loss statement. After you
have submitted them, then you are a “full-blown
personality”. You can now, not only just file a petition
for certification election, you can represent your workers
in the court, or before the labor arbiter, or any labor
tribunal. You can participate in tripartite conferences
called upon by the government, for purposes of
discussing very important labor issues like minimum
wage, adjusted minimum wage, etc. But until you do
that, you are just “provisional personality”.
(Talks about personality of unborn child)
That is called provisional personality. A labor
organization has a provisional personality.
If gusto gyud ka na full-blown ka, then you follow
Article 239. All the regular workers of the bargaining unit,
let’s say you are daily paid. Magmeeting mo. They will
vote for constitution and by-laws. And after voting it, they
report to the Bureau of Labor Relations, Regional Office.
They submit the paper requirements. After that, they are
issued an independent registration. They are complete
personalities. They can do everything already, like any
labor organization can do. File a petition for certification,
they can represent their members in court, they can join
conferences to sent feedback on important issues. They
have that.
Can they later on join a federation? Can they
join a federation and say, “Federation, can you make us
a branch? Because we don’t have the resources to
provide education to our members.”
So, if they give you a charter certificate, it does
not mean that you have a provisional personality. So
actually, your personality becomes double barrel.
Somebody scrutinizes your organization and finds a
serious fatal defect in your registration as an
independent union, and they are able to prove it. So they
cancel your independent registration. Do you cease to
be a representative? No. Because at the same time, you
have also a charter of the federation. You have this
personality flowing from the federation. Dili ka mamatay.
Double barrel ka.
Kung mamatay ang federation, kay nakasala sila,
and their registration is cancelled, does that mean that
you are no longer a labor federation? No, because you
have an independent registration. So, that’s the beauty
of being an affiliate. Affiliate as differentiated from a
chartered local under letter (i) of Rule 1 Book V section
1.
(i) "Chartered Local" refers to a labor organization
in the private sector operating at the
enterprise level that acquired legal
personality through registration in the
Regional Office in accordance with Rule III,
Section 2- E of these Rules.
Kana na mga terminuha, memorize-on na ninyo kay
lisod mangita ug substitute words. (Example: Chartered
local, independent union, independent registration,
federation, local, labor center).
Federation – labor org registered with DOLE and
it has at least 10 local all of which are already
exclusive bargaining agents in the workplace.
Local- mao na ang anak sa federation.
Then you have the labor center. A labor center
is an aggrupation of federation, independent unions.
Example of independent union diri sa Davao? Davao
Light and Power Employees Union. Independent na sila
pero niadto, affiliated na sila sa Nagkahiusang
Mamumuo sa Habagatang Mindanao. Nabungkag
naman ng KMU. Nanglayas na, wala na run. Southern
Philippines federation of Labor, usa sad na sa ilang
federation. Because, labor centers are aggrupations.
Is KMU a labor center? Kilusang Mayo Uno man
na. Nganong Mayo Uno man? Unsa ang significance?
Labor Day. Labor Day sa Russia, China, most states,
apil Germany, Netherlands, France. Pero ang US?
Kanus-a ang Labor day? Dili May 1. Kay nahitabo man
ang Hay Market Square Massacre in Chicago. The strike
of railway workers turned violent. Basaha ninyo ang
communist manifesto. Ang philosophy sa communist
movement.
Remember for the socialist and communist, the
only genuine revolutionary class is the urban industrial
worker. Sa ato pa, ma-pride sila. Not the agricultural
worker, kay ang agricultural worker, the moment he is
given a little land, he has property and he becomes a
petty bourgeois. Ma-convert sila into a capitalist pag naa
silaý gamayng yuta.
Dili ka kakita ug registration sa KMU sa DOLE
kay they are a multisectoral group. They are not just an
aggrupation of federations, independent unions. Apil
man gani ng mga studyante, mga wala’y trabaho. Pero
kung mag-demonstration na sila, mas daghan pa
bandera kaysa tao.
So, this is a classification of labor organizations
or unions by composition. Smallest is the local but if you
classify labor organizations according to their protection
in relation to collective baragaining, classification in first
level is labor organization. Ang magulang ana, legitimate
labor organization. Once you are registered, you are
called legitimate. Once you run in a certification election,
the workers vote in a secret ballot to choose you as their
representative of the workers in the collective bargaining
with the employers, then you become an exclusive
bargaining agent. (writes on board:)
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Labor organization  Legitimate Labor Organization 
Exclusive Bargaining Agent
Let me just point out to you one feature of this
word exclusive. Naa kay yuta, namaligya ka ug yuta.
Nganong ibaligya daw nimo sa uban na exclusive man
kaya? Tubagon nimo, tan-awa sa Civil Code, that is not
exclusive. To make it exclusive, there must be a
consideration. An option to sell or an option to buy
unless with consideration is not binding.
Kini, you are an organization chosen by the
workers. The workers are the principal, the union is only
the agent. But the principal cannot take over the
negotiations for as long as there is the agent, which is
contrary to the principles of contract of agency. Contract
of agency can be terminated at any time with or without
cause. That is the big fight in the US, the so-called right
to work states. There are parts in the states that there
are no Exclusive Bargaining Agents.
favor of the union member and individual worker. Pero
pag muingon ang union na “we will agree to the
compromise”, but if it is unreasonable, if they’re just
giving a lump-sim and the union already agreed, it is not
binding. The right to compromise is personal to each and
every union member. So unless they gave their
individual written consent, the compromise entered into
by the union is invalid.
So the representation status is only good for
acquisition of rights. But if its about ceding of rights,
disposing of rights, compromising of rights --- the union
cannot do that. That is how the law protects the lowly
union member.
Go through the rights and conditions of union
membership. ¾ of these rights have something to do
with money. Read all about it.

How many years are you exclusive? 5 years.

Your exclusive representation is equivalent to 5 years.
And that is also the length of the protective bargaining
agreement, and that’s also the term of the officers,
regardless of the bylaws. Because the Labor Code
supersedes the internal rules of the labor organization.

Suppose the union brings a money claim for 2 of

its members. By which complaint? non-payment of 13th
month pay. And then the union is attacked by the
management and says, he has no personality to
represent because the Bureau of Labor Relations in a
preliminary decision has cancelled its registration, it’s
just on appeal now before the director of LR. For as long
as there is no final and executory decision, the case will
continue as titled.

Samahan ng Manggawa sa XYZ Corp vs ZYX

Corp. You don’t even have to name whom they are
represented. If you are a member of the union and you
are not named, later on in the judgment, if you are
similarly situated as those named in the case, you are
covered by the decision. Supposed the registration is
actually cancelled with finality while the case is pending,
what happens to the case? The case will continue as if
the union registration has not been cancelled.

Is there no substitution of parties? What is the

rule in Civil Procedure? If you file in a representative
status, you must name your principal, otherwise, you are
the party. Representative capacity is always
denominated as such when you file a case. E.g. Baby
Agdao represented by adopted putative parent etc etc.
Kay foundling man daw si Baby Agdao.

What is the scope of implied representation in a

money claim? The scope is --- It covers everything in
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