Art. 254.
Ineligibility of Managerial Employees to join any
Labor Organization; Right of Supervisory Employees.
Managerial employees are not eligible to join,
assist or form any labor organization. Supervisory employees
shall not be eligible for membership in the collective
bargaining unit of the rank-and-file employees but may join,
assist or form separate collective bargaining unit and/or
legitimate labor organizations of their own. The rank-and-file
union and the supervisors’ union operating within the same
establishment may join the same federation or national
union.
Art. 255. Effect of Inclusion as Members of Employees
Outside the Bargaining Unit
The inclusion as union members of 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.
Notes:
1.MANAGERIAL EMPLOYEES AND SUPERVISORY EMPLOYEES
O Managerial employees are not eligible to join, assist or
form labor organizations. However, such prohibition applies
only to labor organization and no prohibition to join workers
association.
O Supervisory employees
Supervisors can join, assist or form a labor organization but
they shall not be eligible for membership in the collective
bargaining unit of the rank and file employees. They may
join, assist or form separate collective bargaining unit and/or
legitimate labor organization of their own. Pwede sila mag
join, assist or form og labor organization or collective
bargaining unit of their own. Pero dili pwede mag uban sa
rank and file.
Supervisors’ union and rank and file employees union in the
same establishment may join the same federation or
national union. (Before the 2007 amendment, supervisors
and rank and file union cannot join the same federation)
Who is a managerial employee?
It refers to an employee who is vested with
powers and prerogatives to lay down and execute
management policies, as to hire, transfer, suspend, lay off,
recall, discharge, assign or discipline employees.
What is the importance of the definition of managerial
employees?
Designation should be reconciled with the actual
Job Description of subject employees. It doesn’t mean that
your designation as a manager makes you as such. What
matters is your job description.
The mere fact that an employee is designated as
manager does not necessarily make him one. Otherwise one
can be given a title just to deprive him to be a member of a
union. What determines whether an employee has a rank
and file or managerial status is the nature of the employees’
function and not the nomenclature given to the job.
Constitutionality of the Prohibition:
Article III Section 8 of the Constitution provides that:
“The right of the people including those employed in the
public and private sector to form unions, association, or
societies for purposes not contrary to law shall not be
abridged.”
Does the prohibition of managerial employees to join labor
organization violate the constitution?
No. That constitutional right is subject to the
condition that its exercise should not be for purposes
contrary to law. If managerial employees would belong to or
be affiliated with a union, said union might not be
assured of their loyalty in view of evident conflict of
interests. The union can become company-dominated with
the presence of managerial employees in union membership
2. CONFIDENTIAL EMPLOYEES:
O Not all confidential employees are prohibited from joining
a labor organization.
Illustrative Case:
San Miguel Corporation vs. Laguesma
O Confidential employees are those who assist or act in a
confidential capacity to persons who formulate, determine
and effectuate management policies in the field of labor
relations.
O Only those confidential employees who have access to
confidential labor relation policies or informations are
prohibited from joining a labor organization.
O Confidential employees who have access to confidential
informations from business stand point are not prohibited
from joining any labor organization.
O The rationale for the prohibition is the same with that of
managerial employees. -Conflict of interest-
Right to self-organization in private sector vs. government
employees
In the private sector, the right to self-
organization includes the right to deal or negotiate with
employers in order to fix the terms and conditions of their
employment and also to engage in concerted activities for
the attainment of their objective such as strikes, picketing
and boycotts.
With respect to government employees, the
right to self-organization is only for the furtherance and
protection of their interest.
Note:
E.O.180 applies to govt. employees covered by
Civil Service Law. Government employees of GOCC w/out
original charter are not included in the coverage of E.O. 180
for they are covered by the Labor Code.
Private employees’ right to self-organization
includes collective bargaining negotiations and engaging in
concerted activities.
These are not available to government
employees because the terms and conditions of their
employment are fixed by law. Only those terms and
conditions not otherwise fixed by law are allowed to be
negotiated between the employees’ organization and
appropriate government authorities. Their remedy is to
petition the congress (example: increase their salary). Also,
government employees are not allowed to strike (absolute
rule)-No boycott, and no picket.
(Government Employees’ right to self-organization is only for
furtherance and protection of their own interest. On the
other hand, private sector’s right to self-organization
includes the right to collective bargaining negotiation and to
engage in concerted activities such as strikes, picketing and
boycotts for the attainment of their objectives.)
Question:
Is registration a limitation of the right to
assembly or association?
Answer:
No. Registration is not a limitation of the right to
assembly or association which may be exercised with or
without said registration. The requirement of registration is
merely a condition sine qua non for the acquisition of legal
personality by the labor organizations, associations, or
unions and the possession of the rights and privileges
granted by law to legitimate labor organization. Said
registration is necessary because the constitution does not
guarantee such rights and privileges much less said
personality which is mere statutory creations. The same
requirement is necessary to protect both labor and the
public against abuses, fraud or impostor who pose as
organizers, although not truly accredited agents of the union
they purport to represent. Such requirement is a valid
exercise of the police power because the activities in which
labor organizations, associations and unions of workers are
engaged affect public interest which should be protected.
(PAFLU vs. Sec. of Labor)
Effect of registration under the Corporation Law:
If a labor organization was organized under the
Corporation Law as a non-stock corporation and was issued
a certificate of incorporation by the SEC, such incorporation
has only the effect of giving the labor organization a juridical
personality before regular courts of justice. Being registered
with Sec is not equivalent to registration under the Labor
Code, because it does not grant the rights and privileges of a
legitimate labor organization; i.e. the personality to bargain
collectively with the employer.
- High-level employees, whose functions are normally
considered as policy-making or managerial or whose duties
area of highly confidential nature shall not be eligible to join
the organization of rank and file government employees
- Contract-Bar Rule
existence of a duly registered CBA
effect: the majority status of the incumbent union cannot
be contested within 5 years except during the freedom
period – 60 days prior to the expiration of the CBA
Exceptions to the Contract- Bar rule: (take note of the
assigned cases)
The Contract-Bar Rule will not apply in the following cases:
• Those CBA entered into with a labor organization which is
not certified as the sole and exclusive bargaining
representative but merely accorded voluntary recognition by
the management despite the existence of another labor
organization seeking recognition;
• Those CBA which are not only duly registered with the BLR
or the appropriate regional office;
• Those CBA which are defective for being submitted not in
accordance with the law
(Associated Labor Union vs. Calleja)
• Those CBA which are incomplete; specifically those which
do not provide for economic benefits to employees
(Buklod ng Saulog Transit vs. Casalla)
• Those CBA hastily entered into prior to the 60 day freedom
period. The reason for this is that there is a desire to frustrate
the will of the employees in selecting the collective
bargaining representative.
(Associated Trade Union vs. Noriel)
• Those CBA which can no longer foster industrial peace and
stability because the identity of the representative is in
doubt. Under this situation, a certification election should be
conducted to clear any doubts on employees representation.
Conciliation – is a process where the disinterested third
party meets with the management and the workers at the
request or otherwise during a labor dispute or in collective
bargaining conferences and aids in reaching an agreement.
Mediation – is when a third party studies each side of the
dispute, then makes proposal for the disputants to consider
but a mediator cannot make an award or render a decision.
 Voluntary Arbitration – is the submission of the dispute to
an impartial person for determination on the basis of
evidence and arguments submitted by the parties.
• Voluntary Arbitrator’s decision is binding upon disputants
and enforceable between them.
Union Security Clause – 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 employees the obligation to
acquire or retain union membership as a condition affecting
employment. It is indeed compulsory union membership
whose objective is to assure continued existence of the
union.
– It essentially requires membership to the union which is
certified as the exclusive bargaining agent so that the
employee may retain his job. It imposes upon employees
the obligation to acquire and to retain membership in a
union as a condition affecting employment.
Runaway Shop – is ULP. It is defined as an industrial plant
moved by its owners from one location to another to escape
union labor regulations or State laws, but the term is also
used to describe a plant removed to a new location in order
to discriminate against employees at the old plant because
of their union activities. In other words, it refers to the
business relocation animated by anti-union animus
(intention).
- This violates the right to self-organization
- Transfer to different location that is tantamount to closure
- This is a method of evading the employees’ right to self-
organize
- Under Sec. I, Rule XI of D.O. 40-03; Inter-union dispute is
no longer limited to dispute between legitimate labor
organizations. D.O. 40-03 provides an expanded definition of
inter/intra-union dispute as it gives the long list of
inter/intra-union disputes which includes:
a. registration and cancellation of union registration,
b. registration and de-registration of CBA,
c. audit of union funds,
d violation of union members’ rights; and
e. other disputes between unions or within a union
Note: The following are considered as inter/intra–union
disputes;
1. petition for registration and petition for cancellation of
union registration or worker’s association
2. petition for registration and petition for cancellation of
registration of CBA
3. petition for interpleader
Gen. Rule on Jurisdiction:
• Med. Arbiter – has the jurisdiction over inter/intra-union
disputes
Exception:
• Med-Arbiter has no jurisdiction on the following:
a. registration and cancellation of registration of labor
organization
b. registration and de-registration of the CBA
Under the jurisdiction of the Regional Director
Who may file a complaint involving inter/intra-union
disputes?
• Any legitimate labor organization or members thereof may
file a complaint involving issues enumerated in Section 1 of
Rule XI, D. O. 40-03
• Any party in interest may file a complaint involving disputes
enumerated in Section 2 of Rule XI, D.O. 40-03 (Note: Sec. 2
was amended and integrated as the present paragraph B of
Section I)
• If the issue involves the entire membership of the union,
the complaint shall be supported by at least thirty percent
(30%) of the membership of the union. It shall also show
exhaustion of administrative remedies as provided for in the
by-laws.
National Union/Federation
- Refers to a group of labor unions in a private establishment
organized for collective bargaining or for dealing with
employers concerning terms and conditions of employment
for their member unions or for participating in the
formulation of social and employment policies, standards
and programs, registered with the Bureau in accordance with
Rule III, Sec.2-B.
- composed of independent unions or chartered local/local
chapter
- Must have at least ten (10) affiliates; each of which must be
a duly certified or recognized collective bargaining agent.
TOTALITY OF CONTRACT DOCTRINE – analyzing the
actuations or remarks of the company whether the same
constitute ULP depends on the facts of the case
- Consider the circumstances whether these are done in good
faith
- Tan-awon ang history sa company whether discriminatory
ba cya sa right to self-organization.
Jurisdiction of the Labor Arbiters and the Commission.
a. Except as otherwise provided under this Code, the Labor
Arbiters shall have original and exclusive jurisdiction to hear
and decide, within thirty (30) calendar days after the
submission of the case by the parties for decision without
extension, even in the absence of stenographic notes, the
following cases involving all workers, whether agricultural or
non-agricultural:
1. Unfair labor practice cases;
2. Termination disputes;
3. If accompanied with a claim for reinstatement, those cases
that workers may file involving wages, rates of pay, hours of
work and other terms and conditions of employment;
4. Claims for actual, moral, exemplary and other forms of
damages arising from the employer-employee relations;
5. Cases arising from any violation of Article 264 of this Code,
including questions involving the legality of strikes and
lockouts; and
6. Except claims for Employees Compensation, Social
Security, Medicare and maternity benefits, all other claims
arising from employer-employee relations, including those of
persons in domestic or household service, involving an
amount exceeding five thousand pesos (P5,000.00)
regardless of whether accompanied with a claim for
reinstatement.
b. The Commission shall have exclusive appellate jurisdiction
over all cases decided by Labor Arbiters.
c. Cases arising from the interpretation or implementation of
collective bargaining agreements and those arising from the
interpretation or enforcement of company personnel
policies shall be disposed of by the Labor Arbiter by referring
the same to the grievance machinery and voluntary
arbitration as may be provided in said agreements.
In ULP:
- NLRC has no jurisdiction (LA has)
- Except when the ULP involves national interest where it will
be decided by the Commission seated by the appropriate
division
- Final and executory 10 days from the receipt of the decision
by the parties
- Appealable to the CA thru Rule 65
Original Jurisdiction of NLRC
1. Certified cases for compulsory arbitration (ULP involving
national interest)
-Jurisdiction is to the secretary of labor, this pertains to the
national interest cases assumed by the sec. of labor and
certified to the NLRC for compulsory arbitration
-All cases between the parties that are already filed and may
be filed shall be considered subsumed or absorbed by the
certified case and shall be decided by the commission setting
in appropriate division
2. Issuance of TRO and/or injunction
- BUT the issuance of restraining orders and injunctions are
frowned upon. Injunctions in labor dispute are not favored.
It should be issued only after a strict and rigorous compliance
with the statutory requirements. These can only be issued
formerly under Article 218 and formerly under Article 264.
Injunction in labor dispute cannot be issued ex parte.
- The authority of the NLRC to issue injunction is
conditioned upon the existence of a Labor Dispute. Without
a labor dispute the authority to issue injunction belongs to
the regular courts.
What is a labor dispute?
Labor Dispute includes any controversy in matters
concerning terms and conditions of employment for the
association and representation of person in negotiating,
fixing, maintaining, changing or arranging the terms and
conditions of employment, regardless of whether the
disputant stands in the proximate relation of an employer-
employee.
A labor dispute can exist even if the disputant do
not stand in the proximate relation of an employer and
employee, thus, there not need a direct employment
relationship between the parties. An indirect interest is
enough to bring the matter within the purview of the term
labor dispute.
- Registration of a CBA is an inter/intra–union dispute which
is under the jurisdiction of Regional Director.
Executive order No. 126 – transfers the conciliation,
mediation and voluntary arbitration functions
of BLR to the National Conciliation
and Mediation Board.
Article 232 – pertains to inter-union and intra-union
disputes.
(Note: Instead of reading the provisions of Art. 232, please
try to read Rule XI of D. O. 40-03)
Inter-union and Intra-union Dispute
Med-arbiter
has jurisdiction over inter-union and intra-union disputes
(sec. 7 & 16 of Rule XI of D.O. 40-03)
refers to an officer in the Regional Office or in the Bureau
authorized to hear and decide representation cases;
inter/intra–union disputes and other related labor relations
disputes except cancellation of union registration cases.
(Rule 1, Sec. 1 (ii) of D. O. 40-03)
(Note: This is a different quasi-judicial body who exercises
jurisdiction over inter/intra-union disputes. This is different
from the other quasi- judicial bodies such as the Labor
Arbiter and the National Labor Relations Commission.)
Cases under the jurisdiction of the Med- arbiter;
1. Petition for Certification Election (Rule VIII, Sec. 2 of D.O.
40-03)
Med–arbiter’s decision in a petition for certification
election is appealable to the Secretary of Labor within ten
(10) calendar days from the receipt of the decision. (Rule VIII,
Sec. 18 of D.O. 40-03)

2. Inter/Intra–Union Disputes
Under Sec. I, Rule XI of D.O. 40-03; Inter-union dispute is
no longer limited to dispute between legitimate labor
organizations. D.O. 40-03 provides an expanded definition of
inter/intra-union dispute as it gives the long list of
inter/intra-union disputes which includes:
a. registration and cancellation of union registration,
b. registration and de-registration of CBA,
c. audit of union funds,
d. violation of union members’ rights; and
e. other disputes between unions or within a union
Note: The following are considered as inter/intra–union
disputes;
1. petition for registration and petition for cancellation of
union registration or worker’s association
2. petition for registration and petition for cancellation of
registration of CBA
3. petition for interpleader
Gen. Rule on Jurisdiction:
• Med. Arbiter – has the jurisdiction over inter/intra-union
disputes
Exception:
• Med-Arbiter has no jurisdiction on the following:
a. registration and cancellation of registration of labor
organization
b. registration and de-registration of the CBA
- Under the jurisdiction of the Regional Director
Who may file a complaint involving inter/intra-union
disputes?
• Any legitimate labor organization or members thereof may
file a complaint involving issues enumerated in Section 1 of
Rule XI, D. O. 40-03
• Any party in interest may file a complaint involving disputes
enumerated in Section 2 of Rule XI, D.O. 40-03 (Note: Sec. 2
was amended and integrated as the present paragraph B of
Section I)
• If the issue involves the entire membership of the union,
the complaint shall be supported by at least thirty percent
(30%) of the membership of the union. It shall also show
exhaustion of administrative remedies as provided for in the
by-laws.
258 Unfair Labor Practices of Employers
It shall be unlawful for an employer to commit any of the
following unfair labor practices:
(a) To interfere with, restrain or coerce employees in the
exercise of their right to self-organization;
(b) To require as a condition of employment that a person or
an employee shall not join a labor organization or shall
withdraw from one to which he belongs;
(c) To contract out services or functions being performed by
union members when such will interfere with, restrain or
coerce employees in the exercise of their right to self-
organization;
(d) To initiate, dominate, assist or otherwise interfere with
the formation or administration of any labor organization,
including the giving of financial or other support to it or its
organizers or supporters;
(e) To discriminate in regard to wages, hours of work and
other membership in any labor organization. Nothing in this
code or in any other law shall stop the parties from requiring
membership in a recognized collective bargaining agent as a
condition of employment, except those employees who are
already members of another union at the time of the signing
of the collective bargaining agreement. Employees of an
appropriate collective bargaining unit who are not members
of the recognized collective bargaining agent may be
assessed a reasonable fee equivalent to the dues and other
fees paid by members of the recognized collective bargaining
agent, if such non-union members accept the benefits under
the collective agreement. Provided, that the individual
authorization required under Article 242, paragraph (o) of
this code shall not apply to nonmembers of the recognized
collective bargaining agent;
(f) To dismiss, discharge, or otherwise prejudice or
discriminate against an employee for having given or being
about to give testimony under this code;
(g To violate the duty to bargain collectively as prescribed by
this code;
(h) To pay negotiation or 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; or
(i) To violate a collective bargaining agreement.
The provisions of the preceding paragraph
notwithstanding, only the officers and agents of
corporations, associations or partnerships who have actually
participated in, authorized or ratified unfair labor practices
shall be held criminally liable.
Art. 259 Unfair Labor Practices of Labor Organization
It shall be unfair labor practice for a labor
organization, its officers, agents or representatives:
(a) To restrain or coerce employees in the exercise of their
right to self-organization. However, a labor organization shall
have the right to prescribe its own rules with respect to the
acquisition or retention of membership;
(b) To cause or attempt to cause an employer to discriminate
against an employee, including discrimination against an
employee with respect to whom membership in such
organization has been denied or to terminate an employee
on any ground other than the usual terms and conditions
under which membership or continuation of membership is
made available to other members;
(c) To violate the duty, or refuse to bargain collectively with
the employer, provided it is the representative of the
employees;
(d) To cause or attempt to cause an employer to pay or
deliver or agree to pay or deliver any money or other things
of value, in the nature of an exaction, for services which are
not performed or not to be performed, including the demand
for fee for union negotiations;
(e) To ask for or accept negotiations or attorney’s fees from
employers as part of the settlement of any issue in collective
bargaining or any other dispute; or
(f) To violate a collective bargaining agreement.
The provisions of the preceding paragraph
notwithstanding, only the officers, members of the
governing boards, representatives or agents or members of
the labor associations or organizations who have actually
participated in, authorized or ratified unfair labor practices
shall be held criminally liable.
Grounds for Cancellation of Union Registration
The following may constitute grounds for
cancellation of union registration:
(a) Misrepresentation, false statement or fraud in
connection with the adoption or ratification of the
constitution and by-laws or amendments thereto, the
minutes of ratification, and the list of members who took
part in the ratification;
(b) Misrepresentation, false statements or fraud in
connection with the election of officers, minutes of the
election of officers, and the list of voters;
(c) Voluntary dissolution by the members
Appellate Jurisdiction of the NLRC
1. Decision of the Regional Director and authorized hearing
officer of the DOLE Regional Office on small money claims
which is not exceeding P5,000 and the complaints does not
include a claim for reinstatement.
Question:
Is it necessary to file a motion of reconsideration
before the DOLE Regional Office before an aggrieved party
can file an appeal before the NLRC?
Answer:
No motion for reconsideration is required.
Question:
When to appeal the decision of DOLE Regional
Office to the NLRC?
Answer:
The appeal must be made within 5 calendar days
with cash or surety bond equivalent to the monetary award.
This pertains to the decision of the Regional Director on small
money claims which is not exceeding P5, 000 under Article
129 of the Labor Code and the complaint does not include a
claim of reinstatement.
No Motion for Reconsideration is required.
2. Decision of the Labor Arbiter in cases under its original
jurisdiction
Appeal should be filed within 10 calendar days
from receipt of the decision any order by the counsel or
representative of the record.
No need to file a Motion of Reconsideration for
the decision of the Labor Arbiter, such will be considered an
appeal which would not comply with the requirement of an
appeal. The case will be dismissed and the decision will be
final and executory.
The proper remedy from the adverse decision of the Labor
Arbiter is an appeal.
- "The Commission may sit en banc or in EIGHT (8) divisions,
each composed of three (3) members. The Commission shall
sit en banc only for purposes of promulgating rules and
regulations governing the hearing and disposition of cases
before any of its divisions and regional branches and
formulating policies affecting its administration and
operations. The Commission shall exercise its adjudicatory
and all other powers, functions, and duties through its
divisions. Of the EIGHT (8) divisions, the first, second third,
FOURTH, FIFTH AND SIXTH divisions shall handle cases
coming from the National Capital Region and other parts of
Luzon; and the SEVENTH, AND EIGHT divisions, cases from
the Visayas and Mindanao, respectively: Provided, That the
Commission sitting en banc may, on temporary or
emergency basis, allow cases within the jurisdiction of any
division to be heard and decided by any other division whose
docket allows the additional workload and such transfer will
not expose litigants to unnecessary additional expenses. The
divisions of the Commission shall have exclusive appellate
jurisdiction over cases within their respective territorial
jurisdiction.
- Functions of the Commission EN BANC:
1) The commission shall sit en banc only for the purpose of
promulgating rules and regulations governing the hearing
and disposition of cases before any of its divisions and
regional branches.
2) Formulate policies affecting its administrative and
operations.
3) The Commission sitting en banc may, on temporary or
emergency basis, allow cases within the jurisdiction of any
division to be heard and decided by any other division whose
docket allows the additional workload and such transfer will
not expose litigants to unnecessary additional expenses.
4) The president may extend the services of the
commissioner or Labor Arbiter up to the maximum age of 70,
upon the recommendation of the Commission sitting en
banc.
5) The Labor Arbiters shall be appointed by the President,
upon recommendation of the Commission en banc to a
specific arbitration branch, preferably in the region where
they are residents.
Mao ra na ang mabuhat sa Commission En Banc.
AGAIN,:
• EN Banc – cannot decide cases, if you will lose a case in
division, it is not appealable to the Commission sitting En
Banc.
• The adjudicatory functions of the NLRC are exercised
through its division.
- non-lawyer may appear before the Commission or Labor
Arbiter only if:
1) He represents himself as party to the case;
2) He represents a legitimate labor organization, which is a
party to the case: Provided that he represents: (i) a
certification from the BLR or Regional Office of DOLE
attesting that the organization he represents is duly
registered and listed in the roster of legitimate labor
organizations; (ii) a verified certification issued by the
secretary and attested to by the president of the said
organization in the said case; and (iii) a copy of the resolution
of the board of directors of the said organization granting
him such authority;
3) He represents a member or members of a legitimate labor
organization that is existing within the employer’s
establishment, who are parties to the case. Provided that he
presents: (i) a verified certification attesting that he is
authorized by such member or members to represent them
in the case; and (ii) a verified certification issued by the
secretary and attested to by the president of the said
organization stating that the person or persons he is
representing are members of their organization which is
existing in the employer’s establishment;
4) He is a duly-accredited member of any legal aid office
recognized by the Department of Justice or Integrated Bar of
the Phils. Provided, that he (i) presents proof of his
accreditation; and (ii) represents a party to the case;
5) He is the owner or president of a corporation or
establishment which is a party to the case: Provided, that he
presents: (i) a verified certification attesting that he is
authorized to represent said corporation or establishment;
and (ii) a copy of the resolution of the board of directors of
said corporation, or other similar resolution or instrument
issued by said establishment, granting him such authority.
The non-lawyer must have an SPA so that during
conciliation and mediation, he will be authorized to make a
proposal or to accept proposal or compromise.
- Rights over money matters
Check off – a method of deducting from an employee’s pay
at prescribed period, the amount due to the union for fees,
fines or assessments.
Requirements for a VALID CHECK OFF:
a. the amount and collection of union dues must be
approved by the members as it affects the entire
membership
b. the right of the worker or his union to check-off has been
recognized by the employer or authorized in writing by the
individual worker concerned or stipulated in CBA (note: if
stipulated in the CBA, no need of individual authorization)
c. the amount of union dues should be reasonable and
prohibits the imposition of excessive and arbitrary fees
Subject of the check –off:
a. Union Dues
defined as payment to meet the union’s general and
current obligations; the payment must be regular, periodic
and uniform
b. fees/fines
c. Assessment
Refers to payments used for a special purpose, usually
required only for a limited time.
Example: Gift para sa abogado sa union tungod kay
nagcelebrate sa b-day. Ang contribution na para ipalit og gift,
mao na ang gitawag og assessment.
(Take note for the difference between union dues and
assessments)
Requisites for a VALID LEVY in case of special
assessment/assessment:
1. authorization by a written resolution of the majority of all
the members at a general meeting duly called for the
purpose
2. Secretary’s record of the minutes of the meeting including
the list of all members who are present, the votes casts and
the purpose of the special assessment to be attested by the
president.
Requirement for a VALID CHECK-OFF of a special
assessment:
1. Individual written authorization duly signed by the
employee; The authorization should specifically state the
amount, purpose and beneficiary of the deduction.
The same applies to check-off of attorney’s fees or any
other extraordinary fees
Query:
1. Atty. ABX, the lawyer of union Y, on a the retainer basis,
will have his birthday on Nov. 06. In appreciation for his
faithful and courageous services to the union, the BOD
passes a resolution, assessing every union member a sum of
P200 to be used for the purchase of a b-day gift for Atty. ABX.
Some union members refused to pay the assessment. Is their
refusal justified?
Answer.
Yes, because such assessment fails to comply with the first
requirement of a valid levy in special assessment. The
resolution was not authorized by the members; it was only
passed by the Board of Directors.
[Note: There is a need to determine whether
such refusal is justified or not because if such was not
justified, it may be considered as disloyalty to union which
may result to expulsion. If the one is expelled from
the union, it may result to dismissal especially when there is
a union security clause in the CBA.]
2. At a general membership meeting called for the purpose
of raising funds to finance a projected strike, a majority of
the members of the union voted for a written assessing each
member a sum P5. Later on a member who did not vote
affirmatively for the resolution and did not execute an
individual written authorization for the deduction of the
assessment from his wages, refuse to pay the same. Is his
refusal justified?
Answer.
No, because there was a valid levy, that is, there has been
compliance with the requirements. However, the P5
cannot be checked-off from his pay because he did not
execute a written authorization. Said member, however, can
still be compelled to pay the P5 but not thru check-off.
The management and Union X in Atisan Mining entered
into a CBA for 1997 to 2001. After 6 months, a majority of
Union X formed Union Y and sought management
recognition. The latter respondent by not dealing with either
union. But when the CBA’s economic provisions had to be
renegotiated towards the end of the term of the CBA, the
management chose to negotiate with Union Y, the newer
union. Thus, Union X which negotiated the existing CBA
charged the company with unfair labor practice. The
company argued that it committed no unfair labor practice
since the supposed violation had nothing do with the
economic provisions of the CBA. Is the management right?
a. No. refusal to comply with the CBA’s economic provision is
not only ground for ULP; a disregard of the entire CBA by
refusing to renegotiate with incumbent bargaining agent is
also ULP.
Violation to bargain collectively Article 273
…For purposes of this article, gross violation of CBA shall
mean flagrant and/ or malicious refusal to comply with the
economic provision of such agreement.
Violation of CBA is not ULP per se. Mahimu ra
nang ULP if gross in character or malicious refusal to comply
with economic provisions of such agreement.
The Securities and Exchange Commission approved a
merger that allowed Broad Bank to absorb the assets and
liabilities of EBank. Broad Bank also absorbed EBank’s rank
and file employees without change in tenure, salary and
benefits. Broad Bank was unionized but EBank was not. The
Broad Bank bargaining union requested the management to
implement the union security clause in their CBA by requiring
the ex-EBankk employees to join the union. Does the union
security clause in the Broad Bank CBA bind the ex-EBank
employees?
d) Yes, since the right not to join a labor union is subordinate
to the policy of unionism that encourages collective
representation and bargaining
Based on actual case: BPI vs. BPI employees union, Davao
chapter
Sara has been working as housemaid for the Bojilov spouses
for three (3) years. In the early morning of July 28, the
spouses and Sara were watching the live coverage of the
finals of an Olympic boxing match between a Bulgarian and
a Filipino which the foreign fighter won on points. Peeved by
Sara’s angry remarks that the scoring was unfair, the Bojilov
spouses fired her on the spot.
Sara thereafter filed a complaint with the
Regional Director of the DOLE for unpaid salaries totalling
P5,500.00. The Bojilov spouses moved to dismiss the
complaint on the belief that Sara’s claim falls within the
Jurisdiction of the Labor Arbiter. Sara, however, claimed that
the Regional Director can decide on her claim by virtue of his
plenary visitorial powers under Art. 128 and Art. 129 of the
Labor Code, as amended, which empowers the Regional
Director to hear and decide, among others matters involving
recovery of wages.
1. Whose position will you sustain? Explain.
2. Will your answer be the same if Sara’s claim is P4,500 with
reinstatement? Explain.
Answer:
Note: This question was asked in the bar before the
enactment of the Kasambahay Law. This can then be
answered: In determining whether or not there is a claim for
reinstatement, LA. If there is no claim, depending on the
claims. But! Upon the enactment of the Kasambahay Law,
which we will now follow, ALL claims, regardless of the
amount, fall under the jurisdiction of the DOLE Regional
Director.

Alexander, a Security Guard of Jaguar Security Agency
could not be given any assignment because no client would
accept him. He had a face only a mother could love. After six
(6) months of being on “floating” status, Alexander sued JSA
for constructive dismissal. The labor arbiter upheld
Alexander’s claim of constructive dismissal and ordered JSA
to immediately reinstate Alexander. JSA appealed the
decision to the NLRC. Alexander sought immediate
enforcement of the reinstatement order while the appeal
was pending. JSA hires you as lawyer, and seeks your advice
on the following:
(a) Because JSA has no client who would accept Alexander,
can it still be compelled to reinstate him pending appeal even
if it has posted an appeal bond?
(b) Can the order of reinstatement be immediately enforced
in the absence of a motion for the issuance of a writ of
execution?
(c) If the order of reinstatement is being enforced, what
should JSA do in order to prevent reinstatement?
Answer:
Yes, because reinstatement order of the Labor
Arbiter is not only immediately executory but also self-
executory. There is no way for a reinstatement order to be
prevented. Only physical reinstatement can be stopped.
Since there is no company or client that will accept
Alexander, the company may opt for payroll reinstatement.
In collective bargaining, it is required that the labor
organization is legitimate, that is, the same must be
registered and certified as the exclusive bargaining
representative.
If a labor organization is not registered, it does
not mean that it is illegitimate. The same is still a lawful
organization but it has also legal personality to demand
collective bargaining with the employer. It cannot petition
for a certification election and cannot hold a legal strike.
Question:
Is registration a limitation of the right to
assembly or association?
Answer:
No. Registration is not a limitation of the right to
assembly or association which may be exercised with or
without said registration. The requirement of registration is
merely a condition sine qua non for the acquisition of legal
personality by the labor organizations, associations, or
unions and the possession of the rights and privileges
granted by law to legitimate labor organization. Said
registration is necessary because the constitution does not
guarantee such rights and privileges much less said
personality which is mere statutory creations. The same
requirement is necessary to protect both labor and the
public against abuses, fraud or impostor who pose as
organizers, although not truly accredited agents of the union
they purport to represent. Such requirement is a valid
exercise of the police power because the activities in which
labor organizations, associations and unions of workers are
engaged affect public interest which should be protected.
(PAFLU vs. Sec. of Labor)
At what particular point does a labor organization acquire
a legal personality?
d) On the date the Certificate of Registration is actually
issued
Query:
When does a chartered local/ local chapter acquire legal
personality?
Answer:
It depends. Upon the issuance of its charter
certificate, it acquires limited personality, that is, only for the
purpose of filing a petition for certification. Acquisition of its
complete personality is upon submission of the documentary
requirements under Art. 240.
Independent labor organization acquires on the day of
actual issuance of the certificate of registration.
Chartered local/local chapter acquires legal
personality:
a) on the day of issuance of a charter certificate; limited
personality for the purpose of filing a petition for
certification election; and
b) acquires complete personality upon compliance with the
documentary requirements under Art.240
Registration of the CBA is not necessary for its
validity; registration is only necessary for the contract-bar
rule to apply.
- Original Jurisdiction of NLRC
1. Certified cases for compulsory arbitration (ULP involving
national interest)
-Jurisdiction is to the secretary of labor, this pertains to the
national interest cases assumed by the sec. of labor and
certified to the NLRC for compulsory arbitration
-All cases between the parties that are already filed and may
be filed shall be considered subsumed or absorbed by the
certified case and shall be decided by the commission setting
in appropriate division
2. Issuance of TRO and/or injunction
- BUT the issuance of restraining orders and injunctions are
frowned upon. Injunctions in labor dispute are not favored.
It should be issued only after a strict and rigorous compliance
with the statutory requirements. These can only be issued
formerly under Article 218 and formerly under Article 264.
Injunction in labor dispute cannot be issued ex parte.
- The authority of the NLRC to issue injunction is conditioned
upon the existence of a Labor Dispute. Without a labor
dispute the authority to issue injunction belongs to the
regular courts.
What is a labor dispute?
Labor Dispute includes any controversy in matters
concerning terms and conditions of employment for the
association and representation of person in negotiating,
fixing, maintaining, changing or arranging the terms and
conditions of employment, regardless of whether the
disputant stands in the proximate relation of an employer-
employee.
A labor dispute can exist even if the disputant do
not stand in the proximate relation of an employer and
employee, thus, there not need a direct employment
relationship between the parties. An indirect interest is
enough to bring the matter within the purview of the term
labor dispute.
- (NlRC e) (e) To enjoin or restrain any actual or threatened
commission of any or all prohibited or unlawful acts or to
require the performance of a particular act in any labor
dispute which, if not restrained or performed forthwith, may
cause grave or irreparable damage to any party or render
ineffectual any decision in favor of such party: Provided, that
no temporary or permanent injunction in any case involving
or growing out of a labor dispute as defined in this code shall
be issued except after hearing the testimony of witnesses,
with opportunity for cross-examination, in support of the
allegations of a complaint made under oath, and testimony
in opposition thereto, if offered, and only after a finding a
fact by the Commission, to the effect:
1) That prohibited or unlawful acts have been threatened
and will be committed unless restrained, or have been
committed and will be continued unless restrained, but no
injunction or temporary restraining order shall be issued on
account of any threat, prohibited or unlawful act, except
against the person or persons, association or organization
making the threat or committing the prohibited or unlawful
act or actually authorizing or ratifying the same after actual
knowledge thereof;
2) That substantial and irreparable injury to complaint’s
property will follow;
3) That as to each item of relief to be granted, greater injury
will be inflicted upon complainant by the denial of relief than
will be inflicted upon defendants by the granting relief;
4) That complainant has no adequate remedy at law; and
5) That the public officers charged with the duty to protect
complainant’s property are unable or unwilling to furnish
adequate protection.
Prescription of Offenses and Claims
Art. 290. Offenses.
Offenses penalized under this Code and the rules
and regulations issued pursuant thereto shall prescribe in
three (3) years.
All unfair labor practice arising from Book V shall be filed with
the appropriate agency within one (1) year from accrual of
such unfair labor practice; otherwise, they shall be forever
barred.
Art. 291. Money claims.
All money claims arising from employer-
employee relations accruing during the effectivity of this
Code shall be filed within three (3) years from the time the
cause of action accrued; otherwise they shall be forever
barred.
All money claims accruing prior to the effectivity of this Code
shall be filed with the appropriate entities established under
this Code within one (1) year from the date of effectivity, and
shall be processed or determined in accordance with the
implementing rules and regulations of the Code; otherwise,
they shall be forever barred.
Workmen’s compensation claims accruing prior to the
effectivity of this Code and during the period from November
1, 1974 up to December 31, 1974, shall be filed with the
appropriate regional offices of the Department of Labor not
later than March 31, 1975; otherwise, they shall forever be
barred. The claims shall be processed and adjudicated in
accordance with the law and rules at the time their causes of
action accrued.
Art. 292. Institution of money claims.
Money claims specified in the immediately
preceding Article shall be filed before the appropriate entity
independently of the criminal action that may be instituted
in the proper courts.
Pending the final determination of the merits of money
claims filed with the appropriate entity, no civil action arising
from the same cause of action shall be filed with any court.
This provision shall not apply to employees compensation
case which shall be processed and determined strictly in
accordance with the pertinent provisions of this Code.
Prescription of Money Claims:
The General Rule:
The prescriptive period for all criminal offenses
penalized under the Labor Code and the Rules and
regulations pursuant thereto is three (3) years from the time
of commission thereof. The prescriptive period for ULP is one
(1) year from the time the acts complained of were
committed. Otherwise, they shall be forever barred. The
running of the 1 year period however, is interrupted during
the pendency of the labor case.
The prescriptive period for money claims is three
(3) years from the time the cause of action accrued;
otherwise, they shall be forever be barred. The cause of
action does not accrue until the party obligated refuses
expressly or impliedly to comply with his duty.
Example:
A claim for the monetary equivalent of service
incentive leave; the prescriptive period of such claim is 3
years from the time the employer refuses to pay monetary
equivalent.
Actions for reinstatement prescribe in 4 years.
The filing of a criminal case against the employee does not
have effect of suspending or interrupting the prescriptive
period for filing an action for illegal dismissal. An action for
illegal dismissal is an administrative case which is entirely
separate and distinct from a criminal case. Each may proceed
independently of the other.
Query-3:
The employer prohibits its employee in engaging
of union membership, solicitation, distribution of flyers
during working hours. Is this ULP?
Answer:
No, because the prohibition is not absolute. After
office hours they can engage in such work.
Employers have the right to promulgate rules to maintain
discipline and enhance production within its premises during
working hours.
Samahang Manggagawa sa Top Form vs. NLRC
Bargaining in bad faith is considered U.L.P. But
the same must be raised while the bargaining is in progress.
When the bargaining is finished and the CBA has been
executed voluntarily by the parties , a charge in bargaining in
bad faith is too late and untenable as the CBA is proof enough
that private respondent exerted reasonable effort in good
faith bargaining.
Forms of Bargaining in Bad Faith:
a) Surface Bargaining – going through the motion of
bargaining without any legal intention to reach an
agreement.
b) Blue –Sky Bargaining – making exaggerated or
unreasonable proposals
c) Boulwarism – by–passing the national negotiators in favor
of a direct settlement dealings with employees & local
officials.
(Ibaligya sa kada-usa sa mga empleyado ang counter-
proposal sa employer aron maoy mo prevail over sa proposal
sa union.) This is another form of bargaining in bad faith
because in bargaining, an employer must not deal with the
individual employee but to the union certified as the sole
bargaining representative.
4) Gross violation of contract
Gross violation of Contract means the flagrant and
malicious refusal to comply with the economic provisions of
the CBA.
(Again, registration is not necessary for the Validity of the
CBA. It is only required for the Contract-bar rule to apply.)
If the CBA is a product of an arbitral award, (compulsory
arbitration) the posting requirement of the CBA in two
conspicuous places for five days does not apply.
RUN-OFF ELECTION
When an election which provides for three (3) or
more choices results in none of the contending unions
receiving a majority of the valid votes cast, and there are no
objections or challenges which if sustained can materially
alter or results, the election officer shall motu proprio
conduct a run-off election within 10 days from the close of
the election proceedings between the labor union receiving
the two highest number of votes; provided that the total
number of votes for all contending unions is at least fifty
(50%) percent of the number of votes cast.
Requisites:
a) a valid certification election which provides for 3 or more
choices;
b) none of the contending unions receive a majority of the
valid votes cast;
c) The total number of votes for all contending unions is at
least 50% of the number of votes cast.
Who wins in Run–Off Election?
The union who receives the highest number of votes wins
the election. (Plurality not Majority)
Said union shall be certified as the exclusive bargaining
representative of the bargaining unit.
(Note:
Run-off election is only between the two unions who
receive the highest number of votes.
“No Union” is not a choice in Run-off Election.)
C. CONSENT ELECTION
3rd method in determining which union will bargain with
the employer.
Voluntarily agreed upon by the parties
No strict and complicated rules
May take place in an unorganized or organized
establishment
O In hearing a petition for a certification election, the med-
arbiter may persuade the contending unions to agree to a
consent election. If the unions do agree, the med-arbiter
shall not issue an order calling for the conduct of the
certification election. Instead, he shall enter in the minutes
of the hearing or preliminary conference the fact of the
agreement and then cause the immediate scheduling of the
pre-election conference. The minutes should be signed by
the parties and attested to by the med-arbiter. The med-
arbiter shall immediately forward the records of the
petitions to the Regional Director or his/her authorized
representative for the determination of the Election Officer
who shall be chosen by raffle in the presence of
representative of the contending unions if they so desire.
O The first pre-election conference shall be scheduled within
ten (10) days from the date of the consent election
agreement. Subsequent conferences may be called to
expedite and facilitate the holding of the consent election.
O To afford an individual employee-voter an informed choice
where a local/chapter is the petitioning union, the
local/chapter shall secure its certificate of creation at least
five working days before the date of the consent election.
Effects of Consent Election: (D.O 40-03 Sec. 24)
Where a petition for certification election had been filed,
and upon the intercession of the Med-Arbiter, the parties
agree to hold a consent election, the results thereof shall
constitute a bar to the holding of a certification election for
one (1) year from the holding of such consent election.
Where an appeal has been filed from the results of the
consent election, the running of the one-year period shall be
suspended until the decision on appeal has become final and
executory.
Where no petition for certification election was filed but
the parties themselves agreed to hold a consent election
with the intercession of the Regional Office, the results
thereof shall constitute a bar to another petition for
certification election.
Bar Question (set 8 Nos.1-13)
Distinguish clearly but briefly between Consent election
and certification election.
Answer:
Certification election means 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 or negotiation. Consent
election refers to the other method of determining which
union will bargain with the employer. The difference
between the two is that a certification election is ordered by
the DOLE while consent election is voluntarily agreed upon
by the parties with or without the intervention of the DOLE.
Can a “No Union” win in a certification election?
Answer:
Yes, if it obtains majority of the valid votes cast.
The employees may choose not to be represented by
anyone.
Distinguish between Certification election, Consent
Election, and Run-off election”.
Answer:
Certification election means 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 or
negotiation as ordered by the DOLE. Consent election refers
to the other method of determining which union will bargain
with the employer thru voluntary agreement by the parties.
Run-off election takes place between the unions who
received the two highest numbers of votes where not one of
the unions obtained the majority of the valid votes cast,
provided that the total union votes is at least 50% of the
votes cast.
In what instance may a petition for certification election be
filed outside the freedom period of a current collective
bargaining agreement?
Answer:
If there is an existing CBA, there is no way that a petition may
be filed outside the freedom period. The same should be
filed within the freedom period unless there is no registered
CBA.
Are Probationary employees entitled to vote in a
certification election? Why?
Answer:
Yes, the law makes no distinction as to the
employment status as basis for eligibility in voting.
When does a “run-off” election occur?
Answer:
A run-off election may proceed when:
a. There is a valid certification election which provides for 3
or more choices
b. That none of the contending unions receive a majority of
the valid votes cast;
c. That the total number of votes for all contending unions is
at least 50% number of votes cast.
(re – run)
National Union/Federation
Refers to a group of labor unions in a private establishment
organized for collective bargaining or for dealing with
employers concerning terms and conditions of employment
for their member unions or for participating in the
formulation of social and employment policies, standards
and programs, registered with the Bureau in accordance with
Rule III, Sec.2-B.
composed of independent unions or chartered local/local
chapter
 Must have at least ten (10) affiliates; each of which must
be a duly certified or recognized collective bargaining agent.
Article 239 – Requirements of Registration
A federation, national union or industry or trade
union center or an independent union shall acquire legal
personality and shall be entitled to the rights and privileges
granted by law to legitimate labor organization upon
issuance of the certificate of registration based on the
following requirements:
(a) Fifty pesos (P50) registration fee
(b) The names of its officers, their addresses, the principal
addresses of the labor organization, the minutes of the
organizational meetings and the list of the workers who
participated in such meetings;
(c) In case the applicant is an independent union, the names
of all its members comprising at least twenty percent (20%)
of all the employees in the bargaining unit where it seeks to
operate
(d) If the applicant union has been in existence for one or
more years, copies of its annual financial reports; and
(e) Four (4) copies of the constitution and by-laws of the
applicant union, minutes of its adoption or ratification and
the list of the members who participated in it.
Article 240- Chartering and Creation of a Local Chapter
A duly registered federation or national union
may directly create a local chapter by issuing a charter
certificate indicating the establishment of the local chapter.
The chapter shall acquire legal personality only for purposes
of filing a petition for certification election from the date it
was issued a charter certificate.
The chapter shall be entitled to all other rights
and privileges of a legitimate labor organization only upon
the submission of the following documents in addition to its
charter certificate:
(a) The names of the chapter’s officers, their addresses and
the principal office of the chapter; and
(b) The chapter’s constitution and by-laws: Provided that
where the chapter’s constitution and by-laws are the same
as that of the federation or the national union, this fact shall
be indicated accordingly.
The additional supporting requirements shall be
certified under oath by the secretary or treasurer of the
chapter and attested by its president.
Art. 246 – Grounds for Cancellation of Union Registration
The following may constitute grounds for
cancellation of union registration:
(a) Misrepresentation, false statement or fraud in
connection with the adoption or ratification of the
constitution and by-laws or amendments thereto, the
minutes of ratification, and the list of members who took
part in the ratification;
(b) Misrepresentation, false statements or fraud in
connection with the election of officers, minutes of the
election of officers, and the list of voters;
(c) Voluntary dissolution by the members
Art. 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.
Notes:
CANCELLATION OF REGISTRATION
Subject to the requirements of notice and due
process, the registration of any legitimate independent labor
union, chartered local and workers‘ association may be
cancelled by the Regional Director, or in the case of
federations, national or industry unions and trade union
centers, by the Bureau Director, upon the filing of an
independent complaint or petition for cancellation.
CANCELLATION OF REGISTRATION
Is an intra/inter-union dispute but jurisdiction is not with
the med-arbiter.
Jurisdiction is vested to:
a) Regional Director- for independent labor union, chartered
local & workers’ association (appealable to BLR)
b) BLR – for federations & trade union centers (appealable to
DOLE Secretary)
Voluntary Cancellation
The law does not require the members to state the
justification or the reason for the dissolution; only those
which are provided by law.
Take note of the 2/3 vote requirement in a meeting duly
called for that purpose and the submission of a petition to
cancel registration with attestation by the President
requirement
C. Strike Vote
• The decision to declare a strike requires the secret-ballot
approval of majority of the total union membership in the
bargaining unit concerned.
• A strike vote should be taken by secret balloting, in meeting
or referenda specially called for the purpose.
• The needed vote is majority of the total union membership,
NOT just majority of the members present in the meeting or
referenda. And it is majority of the union membership, NOT
of the bargaining unit.
• Similarly, a lockout needs the secret ballot concurrence of
the majority of the directors or partners.
• In relation to the taking of the strike vote, it is required that
a notice must be served to the NCMB at least 24 hours prior
to the taking of the strike or lockout vote by secret balloting
informing said office of the decision to conduct a strike or
lockout vote and the date, place and time thereof. This is a
mandatory requirement. The failure of the union to comply
with the requirement of the giving of notice to the NCMB at
least 24 hours prior to the holding of the strike or lockout
vote will render the subsequent strike staged by the union
illegal.
• It is necessary to inform the NCMB because they will
supervise the conduct of the strike vote.
Article 288- Visitorial Power
The Secretary of Labor and Employment or his
duly authorized representative is hereby empowered to
inquire into the financial activities of legitimate labor
organizations upon the filing of a complaint under oath and
duly supported by the written consent of at least twenty
percent (20%) of the total membership of the labor
organization concerned and to examine their books of
accounts and other records to determine compliance or non-
compliance with the law and to prosecute any violations of
the law and the union constitution and by-laws: Provided,
That such inquiry or examination shall not be conducted
during the sixty (60)-day freedom period nor within the thirty
(30) days immediately preceding the date of election of
union officials.
Query: May the employer and the employee validly agree to
extend the probationary period beyond six months?
Answer:
General Rule: No. It must be 6 months equivalent
to 180 days.
However, it can be extended upon waiver on the part of the
employee when he is given the chance to improve his
performance or when the parties of the employment
contract may agree otherwise such when the same is
established by the company policy or when the same is
required by the nature of the work to be performed by the
employee.
FIXED PERIOD EMPLOYMENT:
This type of employment refers to that which
involves contract of employment for a fixed or definite
period or term. For example, kung papirmahon ang
employee og contract which states; “from January – June
2014”.
Query: Is fixed-period employment the same with project
employment?
Answer:
No. A project employment lasts only for the
project’s duration which is predetermined at the time of
hiring. While ang fixed-period employment mao nang naay
mga definite period or term, such as “from January – June,
2014”.
Query: Is fixed-period employment allowed?
Answer:
Yes. The labor code does not prohibit an
employment contract with a fixed period, provided the same
is entered into by the parties without any force duress or
improper pressure being brought to bear upon the employee
and absent any other circumstance vitiating consent.
Requirements for a valid fixed-period employment:
(a) It has been agreed upon knowingly and voluntarily
(b) It was agreed without any force, duress or improper
pressure being brought to bear upon the employee
(c) It was agreed without any circumstance vitiating consent
(d) Or it satisfactorily appears that the employee and the
employer dealt with each other on a more or less equal terms
with no moral dominance exercised by the employer over
the employee
In fixed period employment, lack of notice of
termination is of no consequence because when the contract
specifies the period of its duration, it terminates on the
expiration of such period.
Even if an employee is engaged to perform
activities that are usually necessary or desirable to the usual
business or trade of the employer, it does not preclude the
fixing of employment for a definite period. But if an
employee is being renewed successively, it will result to
regular employment.
Kung mo-hire ang employer og mga empleyado
who will perform activities that are usually necessary or
desirable in the usual trade or business of the employer, unja
gusto nija na fixed period ang employment, kinahanglan
maghimo ug contract specifying that their employment is
only for a fixed period or term.
Absence of any contract specifying the type of
employment, the employee shall be considered as regular
employee because he/she is performing activities necessary
to the business of the employer.
Seafarers/Seaman:
Present jurisprudence states that SEAFARERS
ARE CONTRACTUAL EMPLOYEES. They cannot be considered
as regular employees. Their employment is governed by the
contract they sign every time they are rehired and their
employment is terminated when the contract expires. Their
employment is contractually fixed for a certain period of
time.
They fall under the exceptions of the law.
- 2 kinds of Retirement:
1. Compulsory
2. Optional
Compulsory takes place at the age of 65 while optional is
primarily determined by the collective bargaining agreement
or other employment contract or employer’s retirement
plan.
In the absence of any provision on optional
retirement in a collective bargaining agreement, other
employment contract or employer’s retirement plan, an
employee may optionally retire upon reaching the age of 60
years or more but not beyond 65 years, provided he has
served at least 5 years in the establishment concerned. This
prerogative is exclusively lodged in the employee.
Where the CBA itself gives the option to retire to
either the employer or the employee, such provision is valid
and the employer’s act of retiring an employee who is of
retirable age as defined in the CBA is a valid exercise of the
option.
Pwede sa CBA, ang optional retirement age is 40
years and rendered at least 5 years in the establishment.
- The optional retirement age provided in the CBA or
employment contract must be accepted by the employees.
Meaning, there must be free conformity by the employees
affected. Acceptance by the employees of an early
retirement age option must be explicit, voluntary, free and
an uncompelled.
reinstatement. If the reinstatement is not possible, the
computation is up to the time of finality of the decision.
- Automatic renewal clause is the same with the hold over
principle –the duty to observe the terms and conditions of
the CBA even if the same has already expired until a new
agreement is reached.
• Hold-over Principle
States that the CBA remains in full force and effect until a
new agreement is reached.
Part of the duty to bargain collectively, that is, to observe
the terms of the CBA
PICOP vs. TAÑECA
This case pertains to the enforcement of the union security
clause in an expired CBA under the hold-over principle.
Ang sayop sa mga empleyado concerned in this
case is that mi–signed sila ug authorization letter for the
filing of a petition for certification election of another union.
The union considers such act as disloyalty. So gitangtang sila
sa union unja ni request ang union nga tanggalon sila sa
trabaho pursuant to the union security clause in an expired
CBA. Gi dismiss sila sa ilang trabaho
Does the application of the hold-over principle proper?
No, the court ruled that the hold over principle
applies only to the economic provisions of the CBA. It does
not include the representation aspect of the CBA.

While an employer can unilaterally retire an

employee earlier than the legally permissible ages under the
labor code, this prerogative must be exercised pursuant to a
mutually instituted retirement plan.

In other words only the execution or exercise of

the option may be unilateral but the adaption or institution
of the retirement plan must be mutually instituted
containing such option. The option in order to be valid must
be voluntary accented to by the employee or at least by the
majority of them through bargaining representative.

Consequences of Illegal Dismissal:

a) reinstatement without loss of seniority rights and other
privileges
b) full back wages inclusive of allowances
c) payment of other benefits or their monetary equivalent
d) damages [moral or exemplary]
e) attorney’s fees

Take Note:
The payments of back wages or other benefits are to be
computed from the time the compensation was withheld
from the employee up to the time of his actual