Labor Relations Answers to Boxed Questions in Azucenas Labor Code Book II Box 1 1.

What are the policy objectives of our labor relations law? Ans.: It is the policy of the State; a. To promote and emphasize the primacy of free collective bargaining and negotiations, including voluntary arbitration, mediation and conciliation, as modes of settling labor or industrial disputes; b. To promote free trade unionism as an instrument for the enhancement of democracy and the promotion of social justice and development; c. To foster the free and voluntary organization of a strong and united labor movement; d. To promote the enlightenment of workers concerning their rights ansd obligations as union members and as employees; e. To provide an adequate administrative machinery for the expeditious settlement of labor or industrial disputes; f. To ensure a stable but dynamic and just industrial peace; and g. To ensure the participation of workers in decision and policymaking processes affecting their rights, duties and welfare. 2. Employer-employee relationship must exist so that labor relations may apply within an enterprise. What factors determine the existence of such relationship? Ans.: The existence of employer-employee relationship is determined by the presence of the following elements; a. Selection and engagement of the employee b. Payment of wages Box 2 1. 3.

c. d.

Power to dismiss; and Power to control the employees conduct.

What are considered labor disputes? What are the available remedies? Ans.: Labor disputes are any controversy or matter concerning terms and conditions of employment or the association or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee. Remedies in Labor Disputes; a. Grievance procedure. b. Conciliation c. Mediation d. Enforcement or compliance order e. Certification of bargaining representatives. f. Arbitration (either Voluntary or Compulsory). g. Assumption of jurisdiction h. Certification of NLRC i. Injunction. j. Judicial action k. Appeal. l. Review by Court. m. Compromise agreement.

What is the NLRC? Answer: The NLRC is the National Labor Relations Commission. It exercises exclusive appellate jurisdiction over cases decided by the Labor Arbiter. Is the NLRC independent of the Department of Labor and Employment? Answer: Yes. It is attached to the DOLE for program and policy coordination only. The

2.

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1.

Cases arising from any violation of Article 264 of 3. How is the NLRCs adjudicatory powers this Code, including questions involving the legality of strikes and lockouts; and distributed? Answer: The NLRC shall exercise its 6. Except claims for Employees Compensation, Social adjudicatory and all other powers, functions and duties through its divisions. The division Security, Medicare and maternity benefits, all other claims arising from employer-employee relations, is a legal entity, not the persons who sit in it. including those of persons in domestic or The law lodges the adjudicatory power on each household service, involving an amount exceeding of the 8 divisions, not on the individual five thousand pesos (P5,000.00) regardless of commissioners nor on the whole commission. whether accompanied with a claim for reinstatement. Box 3 7. 3. What are Corporate Disputes? Who has 1. What is RAB? Regional Arbitration Board jurisdiction over them? Regional Arbitration Branch" shall mean any of the regional arbitration Corporate disputes are controversies arising out of branches or sub-regional branches of the intra-corporate or partnership relations, between and Commission. among stockholders, members, or associates; between any or all of them and the corporation, partnership or 2. What cases fall within the jurisdiction of the associates of which they are stockholders, members or Labor Arbiter? associates respectively; and between such corporation, partnership or association and the state insofar as it Art. 217. Jurisdiction of the Labor Arbiters and the concerns their individual franchise or right to exist as Commission. Except as otherwise provided under this Code, the such entity. Labor Arbiters shall have original and exclusive Jurisdiction Over Intra-Corporate Disputes jurisdiction to hear and decide, within thirty (30) Transferred from SEC to RTC 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: 4. Where is the venue of the compulsory arbitration cases?. All cases which Labor Arbiters have authority to hear and decide may be filed in the Regional Arbitration Branch having jurisdiction over the workplace of the complainant or petitioner.

Secretary of Labor merely exercises administrative supervision over the NLRC. Such supervision does not extend to the power to 4. review, reverse, revise or modify decisions of the NLRC in the exercise of its judicial functions. 5.

conditions of employment; Claims for actual, moral, exemplary and other forms of damages arising from the employeremployee relations;

1. 2. 3.

Unfair labor practice cases; Termination disputes; 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 Box 4

1) What are the powers of the NLRC? (See Art 218 o f LC, now Art 224, 2013 Codal) >> POWERS OF THE COMMISSION

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(i) RULE-MAKING POWER The Commission has the power to promulgate rules and regulations: a) governing the hearing and dispostition of cases before it and regional branches; b) pertaining to its internal functions c) those that may be necessary to carry out t he powers of this Code. (ii) POWER TO ISSUE COMPULSORY PROCESSES The Commission has the power to : a) administer oaths; b) summon parties; c) issue subpoenas ad testificandum and duc es tecum (iii) POWER TO INVESTIGATE AND HEAR DISPUTES WITHIN ITS JURISDICTION The Commission has the power to: ion of a question, matter or controversy within its jurisdiction; b) proceed to hear and determine the dispu tes in the manner laid down under paragraph (c) Art. 218 (now Art 224, 2013 Codal) (iv) CONTEMPT POWER The procedures and penalties thereof are pr ovided under paragraph (d) Art. 218 (now Art. 224 , 2013 Codal) (v). POWER TO CONDUCT OCULAR INSPECTION Under Art 219 (now Art. 225), the chairman, any commissioner, labor arbiter or their duly authorized representatives may, at any time during working hours: a) conduct an ocular inspection on any est ablishment, building, ship or vessel, place or

relative to the object of the investigation. Note: Author believes this power is adjunct to the adju dicatory function and exercised only to assist or expedite adjudication or a pending dispute. Not meant to duplicate the visitorial-enforcement authority under Art 128. (vi) ADJUDICATORY POWER Original: Each of the NLRC has original jurisdi ctions over petition for injunction or temporary restraini ng order under Art. 218 (e). It also had the original jurisd iction to hear and decide "National Interest" cases certif ied to it by the Sec.of Labor under Art. 263 (g). Appellate: The NLRC has exclusive appellate jurisdiction over all cases decided bu the lanor arbiters a nd the DOLE regional director or hearing of officers und er Art. 219. (vii) POWER TO ISSUE INJUNCTION OR TEMPOR See Art 218 par. [e] 2) Injunction is frowned upon in labor disputes. Wh at are the pre-conditions before an injuctive writ be is sued? (See Art 218 par. [e]) (Art 224, 2013 Codal) >> As a rule, restraining orders or injunctions do no t issue ex parte and only after compliance with the follo wing requisites, to wit: a. a hearing held "after due and personal notice there of has been served, in such a manner as the Commi ssion shall direct, to all known persons against who m relief is sought, and also to the Chief Executive a nd other public officials of the province or city with in which the unlawful acts have been threatened or committed charged with the duty to protect compl ainant's property; reception at the hearing of "testimony of witnesses , with opportunity for cross-examination, in suppor t of the allegations of a complaint made under oath ," as well as "testimony in opposition thereto, if off ered x x"; c. "A finding of fact by the Commission, to the effect:

a) conduct investigations for the determinat ARY RESTRAINING ORDER

premises, including any work, materiak, i b. mplement, machinery, appliance or any object therein; b) ask any employee, laborer or any perso n, as the case may be, for any information or data concerning any matter or question

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(1) that the prohibited or unlawful acts have bee n threatened and will be committed and will be continu ed unless restrained, but no injunction or TRO shall be is sued on account of any threat, prohibited or unla wful act, except against the person or persons, associati on or organization making the threat or committing the prohibited or unlawful act or actually authorizing or ratif ying the same after actual knowledge thereof; (2) that substantial and irreparable injury to co mplainant's property will follow; (3) that as to each item of relief to be granted, g reater injury will be inflicted upon the complainant by t he denial of relief than will be inflicted upon defendants by the granting of relief; (4) that the complainant has no adequate reme dy at law; (5) that the public officers charged with the duty to protect complainant's property are unable or unwillin g to furnish adequate protection. Box 5 1. Technical rules are not strictly followed in proceedings before the NLRC and the Labor Arbiter. How is this rule reconciled with the requirement of procedural due process? *Simplification of procedure, without regard to technicalities of law or procedure and without sacrificing the fundamental requisites of due process. In Ang Tibay vs CIR case, the court ruled that, it is not narrowly constrained by the technical rules of procedure. However this does not mean that it can entirely ignore or disregard the fundamental and essential requirements of Box 6 due process in trials and investigation of administrative character. There are cardinal 1. primary rights which must be respected even in proceedings of this character: a. Right to hearing b. Tribunal must consider the evidence presented 2.

c. d. e.

f.

g.

Decision must be supported by something (evidence) Supporting evidence must be substantial Decision must be rendered on the evidence presented or at least contained in the record and disclosed to the parties affected The body or any of its judges must act on its own independent consideration of the law and facts, and not simply accept the views of the subordinate in arriving at a decision: and Decide in such a manner that parties can know the various issues involved and the reason for the decision.

How are compulsory arbitration cases heard and decided? The NLRC or Labor Arbiter to deicide case on the basis of position papers and other documents submitting without resorting to technical rules of evidence as observed in the regular court of justice. The evidence presented before it must at least have a modicum of admissibility for it to be given some probative value. Not only must there be some evidence to support a finding or conclusion, but evidence must be substantial. Substantial evidence is more that a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

A labor arbiters decision is appealable to the NLRC & up to the CA/SC. On what grounds? When? ANS: As provided by law, labor arbiters decision is appealable to the NLRC within 10

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calendar days from receipt of such decision only on any of the following grounds: a. If there is a prima facie evidence of abuse of discretion on the part of the Labor Arbiter; b. If the decision was secured through fraud or coercion, including graft & corruption; c. If made purely on questions of law; and d. If serious errors in the findings of fact are raised which would cause grave or irreparable damage or injury to the appellant. 2. At each level of appeal what are the prerequisites? Is a motion for reconsideration a prerequisite? ANS: The following are the perquisites for the perfection of appeal: a. It must be filed within the reglementary period; b. It must be verified by appellant himself; c. It must be in the form of a memorandum of appeal in three (3) legibly typewritten copies which shall state the grounds relied upon, the supporting arguments, the relief prayed for& the date the appellant received the appealed decision or order. The appeal memorandum should be accompanied by a certificate of non-forum shopping, proof of service on the other party, proof of payment of appeal fee, & cash or surety bond.

A motion for reconsideration is not a prerequisite in order that an appeal maybe perfected because technical rules is not binding in labor cases. Hence, if a motion for reconsideration is filed, it considered an appeal, provided that all the requisites for perfection of appeal are present

3.

What are the limits to NLRCs appellate jurisdiction? ANS: The NLRC shall, in case of perfected appeals, limit itself to reviewing those issues which are raised on appeal. Those which are not raised shall be final & executory.

4.

How is a final decision of the labor arbiter or the NLRC executed? ANS: The decision or order of the NLRC or a Labor Arbiter that finally disposes of a case is enforced by an order or writ of execution upon motion of the winning party or upon the initiative of the Labor Arbiter or the NLRC that issued such decision. A copy of such decision or order should have been furnished to the parties and their counsels or authorized representatives.

5.

May a regional trial court issue an injunction against a NLRC decision? ANS: As a general rule, Regional Trial Court has no jurisdiction to issue temporary restraining order in labor cases. However, when a thirdparty to the action, asserts a claim over the property levied upon, the third-party may vindicate his claim by an independent action which may stop the execution. Thus, the above-stated rule applies only when there is no third-party claimant is involved.

If the judgment includes monetary award, appeal is perfected by posting a bond in a form money or security Box 7 bond. 1. What kind of cases fall within BLR's jurisdiction.?

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Inter/intra union dispute cba registration Labor education 2. May labor standards violations be settled by compromise? How this done? It must be voluntarily agreed upon by the parties with the assistance of the BLR or the regional office of DOLEfinal and binding upon the parties and can no longer be repudiated. The only time NLRC or any courts can assume jurisdiction over issues involved therein: a. in case of non-compliance thereof b. if there is prima facie evidence that the settlement was obtained through fraud, misrepresentation or coercion. The assistance of the BLR or the regional office of the DOLE in the execution of a compromise settlement is a basic requirement. Without it, there can be no valid compromise settlement. Mere appearance before BLR or the regional office of the DOLE to file the already executed compromise settlement is not the assistance required by the law. 3. May such compromise be valid if the agreement sets terms lower than the statutory standards? In order for compromise agreement to be valid, one of its substantial requirement is that it must not be contrary to law, morals or public policy. Thus, this agreement must not set terms contrary to what the law requires as minimum standards. 4. Where, when, and how is CBA registered? Registration of Collective Bargaining Agreements Where to file: With the Regional Office which issued the certificate of registration/certificate of creation of chartered local. If the certificate of creation of the chartered local was issued by the bureau, the agreement shall be filed with

the Regional Office which has jurisdiction over the place where it principally operates. Multi-employer collective bargaining agreements shall be filed with the Bureau When to file: within 30 days from execution of the CBA. Requirements for registration The application for CBA registration shall be accompanied by the original and 2 duplicate copies of the following documents. 1. CBA 2. A statement that the CBA was posted in at least 2 conspicuous places in the establishment concerned for at least 5 days before its ratification. 3. Statement that the CBA was ratified by the majority of the employees in the bargaining unit. The following documents must be certified under oath by the representative of the employer and the labor union. No other document shall be required in the registration of the CBA. Procedure 1. Submission of chores of CBA to the BLR or regional office of dole within 30 days from execution, accompanied by the Requirements for registration. 2. Action upon the application fir registration within 5 calendar days from receipt thereof. 3. The regional office shall furnish the blr with copy of cba within 5 days from submission. 4. The blr regional office shall assess the employer for every cba, registration fee of not less than 1,000 or any amount deemed appropriate by secretary of labor. 5. Issuance of certificate of registration. Box 8

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1.

a. b.

c.

d.

e.

What are the requirements for organizing and registering a union? Under the Labor Code of the Philippines, the following are the requirements for organizing and registering a union: Art. 234. Requirements of registration. Any applicant labor organization, association or group of unions or workers shall acquire legal personality and shall be entitled to the rights and privileges granted by law to legitimate labor organizations upon issuance of the certificate of registration based on the following requirements. Fifty pesos (P50.00) registration fee; The names of its officers, their addresses, the principal address of the labor organization, the minutes of the organizational meetings and the list of the workers who participated in such meetings; 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; (As amended by Executive Order No. 111, December 24, 1986) If the applicant union has been in existence for one or more years, copies of its annual financial reports; and 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. (As amended by Batas Pambansa Bilang 130, August 21, 1981) In addition, Art. 237. Additional requirements for federations or national unions. Subject to Article 238, if the applicant for registration is a federation or a national union, it shall, in addition to the requirements of the preceding Articles, submit the following: Proof of the affiliation of at least ten (10) locals or chapters, each of which must be a duly recognized collective bargaining agent in the establishment or industry in which it operates, supporting the registration of such applicant federation or national union; and The names and addresses of the companies where the locals or chapters operate and the list of all the members in each company involved. [ Art. 238. Conditions for registration of federations or national unions. No federation

or national union shall be registered to engage in any organization activity in more than one industry in any area or region, and no federation or national union shall be registered to engage in any organizational activity in more than one industry all over the country. The federation or national union which meets the requirements and conditions herein prescribed may organize and affiliate locals and chapters without registering such locals or chapters with the Bureau. Locals or chapters shall have the same rights and privileges as if they were registered in the Bureau, provided that such federation or national union organizes such locals or chapters within its assigned organizational field of activity as may be prescribed by the Secretary of Labor. The Bureau shall see to it that federations and national unions shall only organize locals and chapters within a specific industry or union.] (Repealed by Executive Order No. 111, December 24, 1986) 2. What is a collective bargaining unit? How does it differ from a union? As provided by the Implementing Rules of the Labor Code, a bargaining unit refers to a group of employees sharing mutual interest within a given employer unit, comprised of all or less than all of the entire body of employees in the employer unit or any specific occupational or geographical grouping within such employer unit. One of the requirements to register an independent union is that the applicant should have a membership of at least 20 percent of the employees in the bargaining unit where it seeks to operate. Azucena differentiated CBU and Union in this manner: CBU is different from and bigger than a union. Union members come from the CBU and there can be several rival unions within a CBU. While officers lead and represent a union, a union represents a CBU. But only one union should represent the whole CBU in bargaining with the employer. The representative is the union; the group represented is the CBU. The representative union, once determined, will represent even the members of other unions

a.

b.

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as long as they are part of the CBU. This is why the representative union is called exclusive bargaining representative (EBR). 3. What is union affiliation and what are its implications? May an affiliate disaffiliate? Union affiliation is defined in two ways: a) When an independently registered union enters into an agreement of affiliation with a federation or a national union; b) A chartered local which applies for and is granted an independent registration but does not disaffiliate from its mother federation or national union. Implications: a) The relationship between a local or chapter and the labor federation or natonal union is generally understood to be that of agency, where the local is the principal and the federation the agent. b) Affiliation by a duly registered local union with a national union or federation does not make the local union lose its legal personality. Despite the affiliation, the local union remains the basic unit free to serve the common interest of all its members; The right of a local union to disaffiliate from its mother union is well settled. It has been held that a local union, being a separate and voluntary association, is free to serve the interest of all its members including the freedom to disaffiliate when circumstances warrant. This right is consistent with the constitutional guarantee of freedom of association. To disaffiliate is a right, but to observe the terms of affiliation is an obligation. SUBSTITUTIONARY DOCTRINE-employees cannot revoke the validly executed collective bargaining contract with their employer by the simple expedient of changing their bargaining agent. The CBA continues to bind the members of the new or disaffiliated and independent union up to the CBAs expiration date. 4. How do unions merge or consolidate?

Merger of labor organizations is the process where a labor organization absorbs another resulting in the cessation of the absorbed labor organizations existence and the continued existence of the absorbing labor organization; that is if Union A absorbs Union B, Union A remains and Union B disappears, or it can be B absorbing A. Another name for merger is absorption. Consolidation of unions refers to the creation or formation of a new union arising from the unification of two or more unions; that is, if union A and union B consolidate themselves, both of them disappear and Union C is born. Another name for consolidation is amalgamation. How? A. Notice of merger or consolidation of independent labor unions, chartered locals and workers association shall be filed with and recorded by the Regional Office that issued the Certificate of Registration/Creation. Notice of merger or consolidation of federations or national unions shall be filed with and recorded by the Bureau. B. The notice shall be accompanied by the following documents: a) Minutes of Merger/consolidation meeting with the list of members who approve the same; and b) Amended Constitution and by-laws and minutes of its ratification, unless ratification transpired in the Convention. C. The Certificate of registration issued to merged labor organizations shall bear the registration number of one of the merging labor organizations as agreed upon by the parties.

5.

On what grounds and upon whose petition may a unions registration be cancelled? The Labor Code provides the following: Art. 238. Cancellation of registration; appeal. The certificate of registration of any labor organization, whether national or local, shall be cancelled by the Bureau if it has reason to believe, after due hearing, that the said labor

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organization no longer meets one or more of the requirements herein prescribed. Art. 239. Grounds for cancellation of union registration. The following shall 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, the list of voters; c. Voluntary dissolution by the members. D.O. No. 40-03(Rule XIV, Section 2) states: Any party-in-interest may commence a petition for cancellation of a unions registration, except in actions involving violations of Article 241, which can only be commenced by members of the labor organization concerned. The employer is a partyin-interest, and jurisprudence reveals cases of cancellation of union registration based on petitions filed by the employer. Box 9 1. What are the rights of union members? a. Political right members right to vote and be voted for, subject to lawful provisions on qualifications and disqualifications. b. Deliberative and decision making right right to participate in deliberations on major policy questions and decide them by secret ballot. c. Right over money matters rights against excessive fees; unauthorized collections of contribution or disbursement; the right to require adequate records of income and expenses and access to financial records; the right to vote on officers compensations, on proposed special assessments and be deducted a special assessment only with the members written authorizations. d. Right to information right to be informed about the orgs constitution and by-laws and CBA and about labor laws. When, how and by whom are union officers elected?

2.

They are elected directly by the members in secret ballot voting. The elections take place at intervals of five years which is their term of office. How it is done are matters left by law to the unions constitution and bylaws or to agreements among the members. In the absence thereof, book V applies. How may they be impeached or removed? They may be impeached by the ff procedure: -Initiated by petition signed by at least 30%of all bona fide members of union; - General membership meeting shall be convened by the board chairman; - Union officer against whom impeachment charges have been filed, before impeachment vote be taken, shall be given ample opportunity to defend himself; - Majority of all the members of union be required to impeach or recall union officers. They may be expelled if they violate the rights and conditions of the membership. 3. May a union member seek cancellations of his unions registration? Yes, provided the ff requisites must concur: Member desire to dissolve or cancel the registration should have been voted upon through secret balloting; The balloting should take place in a meeting duly called for the purpose of deciding WON to dissolve the union; The vote to dissolve should represents 2\3 affirmative vote of the general memberships; - Members resolution should be followed by an application for cancellation passed and submitted by the unions governing board, which must be attested to by the president. 4. What is check-off? When may it properly be done? Check-off is a method of deducting from an employees pay at prescribed period, the amounts due the union for fees, fines, or assessments. Deductions for union service fees are authorized by law and do not require individual checkoff authorizations.

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Box 10 1. What are the rights of a legitimate labor organization? The following are the rights of a legitimate labor organization: (Art. 242) 1. To act as representatives of its members for the purpose of collective bargaining. 2. To be certified as the exclusive representative of all the employees in an appropriate collective bargaining unit for purposes of collective bargaining. 3. To be furnished by employer, upon written request, with its annual audited financial statements. 4. To own property, real or personal, for the use and benefit of the labor organization and its members. 5. To sue and be sued in its registered name. 6. To undertake all other activities designed to benefit the organization and its members, including cooperative, housing welfare and other projects not contrary to law. 7. Its income, properties, grants, endowments, gifts, donations, and contributions, used for their lawful purposes, shall be free from taxes, duties and assessments, except when this provision is expressly repealed by a special law. May a union, as representative, settle by compromise its members money claims? No. The exception is when there is a specific individual consent of each laborer concerned. 1. In the private and public sectors, who are the persons allowed and not allowed to form and join labor organization? >In private sectors all person employed in commercial, industrial and agricultural enterprise and in religions, charitable, medical/educational institutions whether for profit or not are allowed to form or join labor organization. Ambulant, intermittent and itinerant workers, self-employed people, rural workers and those without any definite employees may form/join labor organization. >Those who are not allowed are employees of such cooperative who is a member and co-owner; Managerial employees. >In public sectors, employees of Govt. Corporation established under the corporation code shall have the right to organize with their respective employers. All other employees in civil service shall have the right to form association for purpose not contrary to law. >Exempted employees are those members of the AFP, including police officers, policemen, fireman and jai guard; High level employee. 2. What law governs labor realations in the public secto? >The law that governs in the public sector is the Civil Service Law. May government employees hold protest actions? May they go on a strike legally? >Yes, the resolution of complaint and cases involving govt. employees is not ordinarily left to collective

2.

3.

Box 11

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bargaining/other related activities but to civil service law and labor law whenever Box 12 applicable. 1. >Terms and condition of employment in govt. including any political subdivision or instrumentality thereof and GOCC with original charters are governed by law, the employees therein shall not strike for purpose of securing changes thereof. 4. In the private sector how does a manger differ from a supervisor? >In private sector a manager differs from a supervisor is that a manager makes policy decision or people decision/both, while supervisor recommends those decisions. One is a decision maker while the other recommends. 2. 5. Supervisor and rank and file employees cannot join the same union. What happens if they do? >As a rule the inclusion as union members of employees outside the bargaining unit shall not be ground for the cancellation of registration of the union. Said employees are automatically deemed removed from the list of membership of said union. Who are considered confidential employees? May confidential employee join unions? 3. Unfair Labor practice is an act of abridgment which Article 246 prohibits. Is it ULP to stop protest action by ununionized employees? Ans.: Because self-organization is a prerequisite the lifebloodof industrial democracy, the right to self-organize has been enshrined in the Constitution, and any act intended to weaken or defeat the right is regarded by law as an offense. ULP, therefore has a limited, technical meaning because it is a labor relations concept with a statutory definition. It refers only to acts opposed to workers right to organize. Without the element, the act, no matter how unfair, is not unfair labor practice as legally defined. Under article 247, ULP is both civil and criminal offense. Why? Ans.: The victim of the offense is not just the workers as a body and the well-meaning employers who value industrial peace, but the State as well. Thus, the attack to constitutional right is considered a crime which therefore carries both civil and criminal liabilities. What are the elements of ULP as an offense? Ans.: First, there is employer-employee relationship between the offender and the offended; and Second, the act done is expressly defined in the Code as an act of unfair labor practice.

6.

>Confidential employees assist and act in a confidential capacity to, or have access to confidential matters of, persons who exercise managerial functions in the field Box 13 of labor relations. 1. >Confidential employees cannot form, join, or assist rank-and-file unions however When the employee does not access to confidential employees, there is no legal prohibition against confidential employee from forming, assisting or joining a union.

What acts are considered unfair labor practice by an employer? Answer: Art. 248 of the Labor Code enumerated unfair labor practices of employers.

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a.

b.

c.

d.

e.

f.

g. h.

i.

To interfere with, restrain or coerce employees in the exercise of their right to self-organization. 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. 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; 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; To discriminate in regard to wages, hours of work, and other terms and conditions of employment in order to encourage or discourage membership in any labor organization. To dismiss, discharge or otherwise prejudice or discriminate against an employee for having given or being about to give testimony under this Code; To violate the duty to bargain collectively as prescribed by this Code; To pay negotiation or attorneys fees to the union or its officers or agents as part of the settlement of any issue in collective bargaining or any other dispute; To violate a collective bargaining agreement.

3.

Is it ULP for an employer to contract out jobs being done by union members? Answer: No. It is not ULP for an employer to contract out jobs being done by union members UNLESS such act will interfere with, restrain, or coerce employees in the exercise of their right to self-organization. Hence, contracting out by itself is not ULP. It is the illintention that makes it so. Is it ULP for an employer to favour a particular union? Answer: Yes, if the act of favouring a particular union amounts to domination of a labor union such as in the following: initiation of company union idea; giving financial support to the union; employer encouragement and assistance; and supervisory assistance. Is it lawful to compel an employee to join a union? Answer: No. There is a form of encouragement of union membership which is not considered ULP. This is where the management and union enters into a collective bargaining agreement containing a union security clause. A union security clause essentially requires membership in the union so that an employee may retain his job and the unions existence is assured. It is compulsory union membership whose objective is to assure continued existence of the union. In a sense, there is discrimination when certain employees are obliged to join a particular union. But it is discrimination favouring unionism; it is a valid kind of discrimination.

4.

5.

2.

What is the discrimination that may constitute ULP? Answer: To constitute an unfair labor practice, Box 14 the discrimination committed by the employer 1. What acts are considered ULP by a Labor must be in regard to the hire or tenure of organization? employment or any term or condition of employment to encourage or discourage Art. 249. Unfair labor practices of labor organizations. It shall be unfair labor practice for a labor membership in any labor organization. organization, its officers, agents or representatives:

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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 negotiation or attorneys 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 2. May a union charge with ULP another union in the same enterprise? No, Unfair Labor Practices can only be invoked by an employee against an employer and and by a union member against the labor union when such employer or labor union violates the Constitutional right of workers or Employees to self-organization. May a union member charge with ULP his own union? Yes. Labor Union can be charged with ULP by a union member where in a case such Union arbitrarily exclude qualified applicants 4.

for membership, and a closed-shop provision would not justify the employer in discharging, or a union in insisting upon the discharge of, an employee whom the union thus refuses to admit to membership, without any reasonable ground therefor. What is featherbedding? Is it featherbedding to object to the abolition of certain jobs or positions in the company?

Article 249(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; refers to featherbedding, a term given to employee practices which create or spread employment by unnecessarily maintaining or increasing the number of employees used,or the amount of time consumed, to work on a particular job. No. Most of these practices stem from a desire on the part of employees for job security in the face of technological improvements or in the face of employer subcontracting. However, most courts at common law found these practices to be economically wasteful and without any legitimate employee justification. Box 15

1) How is collective bargaining done? May the parti es devise their own procedure? (See Art.250) >>The mechanics of collective bargaining are set in motion only when the following jurisdictional preconditi ons are present, namely: (1) possession of the status of majority representation of the employees' representativ e in accordance with any of the means of selection or de signation provided for by the Labor Code; (2) proof of m ajority representation; (3) a demand to bargain under A rt 250, par.[a] of the New Labor Code. If the three jurisdi ctional preconditions are present, the collective bargaini ng should begin within 12 months following the determi nation and certification of the employees' exclusive bar gaining representative.

3.

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>> Yes. Art 251 provides, "In the absence of an agr eement or other voluntary arrangement providing for a more expeditious manner of collective bargaining, it sha ll be the duty of the employer and the representatives o f the employees to bargain collectively in accordance wi th the provisions of this Code." 2) The prevailing practice is single enterprise bargai ning. Is multi-employer bargaining allowed? >> Yes. Multi-employer bargaining unit is particula rly advantageous to both sides in industries composed o f many small, financially weak employers. 3) What are the elements of the duty to bargain, vi olation of which may constitute ULP? >> There are four essential elements: otiating an agreement. onditions of employment (e.g., salary/wage increase, be Political. The agreement is a product of a neg Moral. It involves a system of shared responsi bility and decision- making. Forms of ULP a) failure or refusal to meet and convene; b) evading the mandatory subjects of bargainin g; c) bad faith in bargaining including failure or ref usak to execute the collective agreement, if requested; d) gross violation of the CBA 4) What are the compulsory and optional subjects o f bargaining? >> The mandatory subjects of collective bargaining are wages, hours of work and all other terms and condit ions of employment. Those matters outside the terms a nd conditions of employment are not within the employ er's duty to bargain, such other matters he is free to bar

gain or not to bargain. 5) What are the requirements of valid ratification of a CBA? >> The agreement negotiated by the employees' b argaining agent should be ratified or approved by the m ajority of all the workers in the bargaining unit. The post ing of the CBA in two conspicuous places for five days is also required. 6) When does a CBA take effect? Up to when is it ef fective? May its life be extended by non-renewal or by mutual agreement? >> It has been held that a CBA was effective on rati fication by union members. >> RA No. 6715 has introduced through Art. 253-A a significant change in setting the durations or terms of a CBA at five years for the "representation aspect" and >> Art. 253 provides, It shall be the duty of both pa rties to keep the status quo and to continue in full force and effect the term and conditions of the existing agree ment during the 60-day period and/or until a new agree ment is reached by the parties. Box 16 1. What are the methods of selecting the union that will bargain with the employer? a.) Voluntary recognition b.) Certification Election c.) Consent election What is certification election (C.E.)? Who can petition for a C. E.? *Certification election is 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. *may be filed by the (1)registered union or (2) by an employer. (3) Any legitimate labor organization including a(4) national union or federation that has issued a charter certificate to its local/chapter.

Its contents specify the terms and c not more than three years for "all other provisions".

2.

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Box 17 3. On what grounds may a petition for C. E. be denied? 1. A CBA is said to be the law between the parties. What are the consequences of its violation? ANS: If the violation of the CBA is not gross, it is considered as grievance, but if the violation of the CBA is gross, it considered as unfair labor practice. In the event of any violation in the CBA, the aggrieved party has the right to go to court for redress. 2. A CBA is in personam. What are the implications? The exceptions? ANS: CBA is said to be in personam, thus, it implies that labor contracts is only binding between the parties and it does not create any real right which should be respected by third parties. However, as an exception to the said rule, the parties may be held liable to the employees if the transaction between the parties is colored or clothed with bad faith. 3. What is grievance machinery & why is it required provision in a CBA? ANS: Refers to a mechanism for the adjustment of controversies or disputes arising from the interpretation or implementation of the CBA & the interpretation or enforcement of the company personnel policies. It is intended to promote friendly dialogue between labor and management as a means of maintaining industrial peace and therefore considered to be an extension of the parties to bargain as required by law.

*Med-arbiter may disapprove or deny the petition to hold a C.E. on the following ground: a.) Non- appearance b.) Illegitimacy-Unregistered Union c.) Illegitimacy- no charter d.) Absence of employment relationship e.) election bar- the 12 month bar f.) election bar- negotiation or deadlock g.) election bar- existing CBA h.) election bar-lack of support 4. Who votes in C. E.? Who wins? *all employees who are members of the appropriate bargaining unit sought to be represented by the petitioner at the time of the issuance of the order granting the conduct off a certification election shall be eligible to vote. * results of the election and certifying the union which obtained a majority of the valid votes cast. Where majority of the valid votes cast results in no-union obtaining the majority, the med-arbiter shall declare such fact in the order. Is the employer a party to a C. E.? *no, employers are mere bystanders in the CE proceedings. 6. What is meant by duty of fair representation? *this duty, enjoined explicitly in American jurisprudence and implicitly in Philippine law, obligates the majority union to serve the interest of all members of the whole bargaining unit without hostility or discrimination.

5.

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4.

In what cases is resort to the grievance machinery a prerequisite or jurisdictional, and when is it optional?

ANS: Resort first to grievance machinery is jurisdictional when it is expressly & validly entered into the CBA. Hence, all grievances arising from the implementation or interpretation of the CBA and/or interpretation & enforcement of company personnel policies Box 18 are compulsory subject to the grievance 1. Concerted activity an activity undertaken by two or machinery. more employees, by one on behalf of others. However, resort to the said grievance 2. Factors to be examined machinery may be optional when it is proven to be ineffective in the past, or when the Factors affecting legality of strike: parties inadvertently failed to include a grievance machinery provision in the CBA. 1. Statutory prohibition 5. Who are voluntary arbitrators? In what sense are they voluntary? Are their decisions appealable? 2. Procedural requirements of the law 3. Purpose must be ULP and economic

ANS: The rules that governs voluntary arbitration is based on the labor code and its implementing rules & regulations, the CBA, & other agreement of the parties, the directives of the arbitrator, & the procedural guidelines in conduct of voluntary arbitration proceedings.

4. Lawful means and methods ANS: Voluntary Arbitrators consist of persons 5. Injunction mostly involved as employees or officials in the government or in education, civic, and religious institutions, trade union organizations & private enterprises. 3. Government Employee may strike? They are considered to be voluntary in the sense that they are chosen by the parties themselves, thus the preferred method of selection of voluntary arbitrators is by mutual agreement of the parties. No. By reason of peculiar character of the public service, it must necessarily regard the right to strike given to unions in the private industry as not applying to public employees. Moreover, the csc declared that the right to self organization accorded to government employees shall not carry with it the right to engage in any form of prohibited concerted activity or mass action causing or intending to cause work stoppage or service disruption, albeit of temporary nature.

6.

As a general rule, decisions of Voluntary Arbitrator must be accorded with finality, however, the Supreme Court may take cognizance a petition for certiorari by the aggrieved party under Rule 65 of the Rules of Court which allege a grave abuse of discretion 4. Goodfaith strike doctrine - A strike may be or an act without or excess of jurisdiction on considered legal when the union believed that the the part of the Voluntary Arbitrator. respondent company committed unfair labor acts and the circumstances warranted such belief in good faith What rules govern voluntary arbitration? although subsequently such allegation of unfair labor

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practices are found out as not true. (Peoples Industrial and Commercial Employees and Workers Organization (FFW) v. Peoples Industrial and Commercial Corp. GR No. 37687 15 March 1982 5. Striker and employer may not do on occasion of strike. Prohibited activities [Art.264] (a) No labor organization or employer shall declare a strike or lockout without first having bargained collectively in accordance with Title VII of this Book or without first having filed the notice required in the preceding Article or without the necessary strike or lockout vote first having been obtained and reported to the Ministry. No strike or lockout shall be declared after assumption of jurisdiction by the President or the Minister or after certification or submission of the dispute to compulsory or voluntary arbitration or during the pendency of cases involving the same grounds for the strike or lockout. (b) No person shall obstruct, impede, or interfere with, by force, violence, coercion, threats or intimidation, any peaceful picketing by employees during any labor controversy or in the exercise of the right to selforganization or collective bargaining, or shall aid or abet such obstruction or interference. (c) No employer shall use or employ any strike-breaker, nor shall any person be employed as a strike-breaker.

May employer hire workers in place of strikers? An employer is entitled to carry out his business. But in unfair labor practice strike, such replacements may not be permanently employed. In case of defiance of return to work order, or certification or assumption order, a hearing is not required for the employer to validly hire replacement for workers who committed the defiance. 6. What is National interest dispute? In what ways it is subjected to police power? Labor dispute involving national interest. When there exist a labor dispute causing or likely to cause a strike or lock out in an industry indispensable to the national interest. The power of (a) assumption of jurisdiction and decide it or (b) certify the same to the NLRC for Compulsory arbitration by the secretary of labor is in nature a police power measure. 7.No Strike-No Lockout Clause valid? A "no strike, no lock-out" provision in the CBA is a valid stipulation although the clause may be invoked by an employer only when the strike is economic in nature or one which is conducted to force wage or other concessions from the employer that are not mandated to be granted by the law itself. It would be inapplicable to prevent a strike which is grounded on unfair labor practice. [Panay Electric Co. v. NLRC, 1995; Malayang Samahan ng mga Manggagawa sa Greenfield v. Ramos , 2000BLR

(d) No public official or employee, including officers and personnel of the New Armed Forces of the Philippines Box 19 or the Integrated National Police, or armed person, shall bring in, introduce or escort in any manner, any 1. What are the legal limits to a picket? May individual who seeks to replace strikers in entering or picketing be conducted without a strike? leaving the premises of a strike area, or work in place of the strikers. The police force shall keep out of the picket Picketing involves the presence of striking workers lines unless actual violence or other criminal acts occur of their union brothers who pace back and forth before the place of business of an employer considered unfair therein: to organized labor, in the hope of being able to persuade peacefully other workers not to work in the (e) No person engaged in picketing shall commit any act of violence, coercion or intimidation or obstruct the establishment, and customers not to do business there. Picketing as a concerted activity is subject to the free ingress to or egress from the employers premises same limitations as strike, particularly as to lawful for lawful purposes, or obstruct public thoroughfares.

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purpose and lawful means. Like the freedom of expression in general, it has limits. Thus, to the extent that it is an instrument of coercion rather than a persuasion, it cannot rightfully be entitled to the protection associated with free speech. Picketing almost always accompanies a strike. But there may be picketing without a strike because employees may picket without engaging in work stoppage. Although picketing is a form of concerted action, not every concerted action is a strike. 2. What is the recourse of a neutral party being affected by a picket?

A picketing labor union has no right to prevent innocent bystander from getting in and out of its premises, otherwise it will be held liable for damages for its act against innocent bystanders. 3. What is the recourse of an employer when employees conduct a group action without work stoppage? (No answer found in the book, I just infer this based on the annotations) The following are concerted actions without work stoppage: a) Collective letter;(Republic Savings Bank vs. CIR) b) Publicity; c) Placards and Banners; d) Wearing of Armbands;(Bascon et al vs. CA et al) e) Speeches, Music, and Broadcasts f) Employees Demonstration to Protest Police Abuses (Phil Blooming Mills Employees vs.PBM Inc) There was no finding by the Court that the following group action constitutes illegal act. In fact, per se, they are within the mantle of constitutional protection under freedom of speech. Being so, an employer who terminates employment constitutes illegal dismissal not being for any of the just or authorized causes. Therefore, as long as the group action constitutes a guarantee of the freedom of speech, the employer has no recourse but to respect such exercise of right.

In Philippine Association of Free Labor Unions (PAFLU) v. Cloribel, the Court, through Justice J.B.L. Reyes, stated the innocent bystander rule as follows: The right to picket as a means of communicating the facts of a labor dispute is a phase of the freedom of speech guaranteed by the constitution. If peacefully carried out, it cannot be curtailed even in the absence of employer-employee relationship. The right is, however, not an absolute one. While peaceful picketing is entitled to protection as an exercise of free speech, we believe the courts are not without power to confine or localize the sphere of communication or the demonstration to the parties to the labor dispute, including those with related interest, and to insulate establishments or persons with no industrial connection or having interest totally foreign to the context of the dispute. Thus the right may be regulated at the instance of third parties or innocent bystanders if it appears that the inevitable result of its exercise is to create an impression that a labor dispute with which they have no connection or interest exists between them and the picketing union or constitute an invasion of their rights. Thus, an innocent bystander, who seeks to enjoin a labor strike, must satisfy the court it is entirely different from, without any connection whatsoever to, either party to the dispute and, therefore, its interests are totally foreign to the context thereof.

4.

When is a group action a strike even if there is no work stoppage? Is boycott a strike? The word strike in its broad significance has reference to a dispute between an employer and his workers, in the course of which there is a concerned suspension of employment. As a form of labor activity, it is rarely carried on without the concomitants of picketing or boycotting. Thus, a group action is considered a strike even if there is no work stoppage in instances of picket and boycott. The term boycott as applied to labor unions, is generally understood to ba a combination to harm one person by coercing others to harm him-that is, a combination of many to cause a loss to one person by causing

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others, against their will, to withdraw from him means or where they attempt to their beneficial business intercourse through attain unlawful objectives; or threats that unless others do so, the many will When they personally authorized or cause similar loss to him or them. participated in the particular acts. Whether a boycott is a strike or not depends upon the means or methods to carry out the boycott. The striking employees not Box 21 only have a right to acquaint the public with 1. What are the kinds of employment and which the fact of the existence of a strike and the ones are entitled to the right to security of cause thereof, but may appeal for sympathetic tenure? aid by a request to withhold patronage from the employer. The kinds of employment are: 1. Regular employment 2. Casual employment 3. Project employment 4. Seasonal employment Box 20 5. Probationary employment 6. Fixed-term employment (but marag pwd ra muingon 1. Who are the strikers that may return to their og regular and temporary jobs when the strike is over? employment) Those who were discriminatorily dismissed for union activities; and Those who voluntarily went on strike even if it is in protest of an ULP. Either in economic or ULP strike, the strikers are not to be paid for the period they were on strike. What are the exceptions? Involuntary strikers illegally locked out; or Voluntary strikers in ULP strike who offered to return to work unconditionally. On what grounds may the employment of strikers be terminated? By whom? When? Through what process? An ordinary striking worker cannot be terminated for mere participation in an illegal strike. There must be proof that he committed illegal acts during strike. A union officer, on the other hand, may be terminated from work when he knowingly participates in an illegal strike, or when he commits an illegal act during a strike. What liabilities may employees incur by holding a strike? They may be held liable for damages where they attempt to attain their legitimate objectives by unlawful

2.

3.

4.

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The right to security of tenure shall be enjoyed by employees in all kinds of employment. (According to Consti and court rulings. Art 279, which recognizes security of tenure only to regular employees, is defective.) (But if dli regular employee, ang security of tenure kay for a limited period lng pud. Hehe!) 2. What is project employment? When does a project employee becomes regular? A project employment is one whereby the employment has been fixed for a specific project or undertaking, the completion or termination of which has been determined at the time of the engagement of the employee or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season. A project employee becomes a regular employee when he is repeatedly rehired and his services continually needed for a long span of time. 3. What are the kinds of fixed-period employment and under what circumstances are they considered valid? The following are the kinds of fixed-period employment: (sorry, wla koy naread nga kinds ) The fixed-period employment shall be considered valid when: (1.) it is entered into by the parties without force, duress or improper pressure being brought to bear upon the employee and absent any other circumstance vitiating consent; or (2.) it satisfactorily appears that the employer and the employee dealt with each other on more or less equal terms with no moral dominance exercised but he former or the latter. (Brent Doctrine)

4.

Who is considered regular seasonal and regular casual employee? A regular seasonal employee is one who is called to work from time to time. During a season they are employed; temporarily laid off during off-season. They are not, strictly speaking, separated from the service but are merely considered on leave of absence without pay until they are reemployed. A regular casual employee is one who has rendered at least one year of service, whether continuous or broken with respect to the activity in which he is employed. He is regular only for that work activity for which he was hired. His employment may be on-and-off, but every time the particular work activity occurs, he is the one to be rehired. (He is originally a casual employee. After 1yr he becomes a regular casual ee)

5.

What are the rights of a probationary employee? The following are the rights of a probationary employee: 1. Security of tenure; 2. To be considered a regular employee if he is allowed to work after the probationary period. May the employer contract out a regular job? Yes, an employer may contract out a regular job, provided that it is done in good faith and justified by exigencies of the business.

6.

Box 22

1.

Serious misconduct as a valid reason of dismissal require a certain elements. What are those?

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>The misconduct to be serious must be of such a grave aggravated character and not merely trivial or unimportant. 2. If an employee, on ground of inconvenience, disobeys and order transferring him to another location or job, may such employee be dismissed? >In order to constitute a valid reason to dismiss an employee for disobeying an order the two requisite must concur (1) employees attitude wrongful and perverse and (2) qualities of the order lawful, reasonable, made known to the employee and pertain to the duties of the employee when it shown that it is unnecessary, convenient, and prejudicial to the displaced employee such dismissal is valid. 3. Is ignorance an excuse for having violated a company policy or regulation? >Yes, ignorance of company policy or regulation may be an excuse when the act or omission is not grave or where the act does not constitute gross negligence. Under what conditions or circumstances may an employee be dismissed on ground of loss of confidence? A. Loss of confidence should not be simulated B. It should not be used as a subterfuge for causes which are improper illegal/unjustified; Box 23 1.

C. It may not be arbitrarily asserted in the face of overwhelming evidence to the contrary. D. it must be genuine, not mere afterthought to justify earlier action taken in bad faith. E. Employee involved holds a position of trust and confidence.

In what respects are the authorized causes and the just causes the same and different? Ans. They are the same in the sense that they are the causes and modes of termination of employment and differs in the sense that dismissal for just cause is where an employee is dismissed for causes which are attributable to his fault or culpability while termination for authorized cause is where an employee is dismissed for causes independent of his fault. In just cause a dismissed employee is not entitled to separation pay while in authorize cause is entitled to separation pay.

2.

4.

What are the authorized causes and the corresponding rates of separation pay? What authorized cause does not entail payment of separation pay? Ans. The following are the authorized causes and corresponding rates of separation pay: a. Automation/Robotics and Redundancy equivalent to at least one month pay or at least one month pay for every year of service, whichever is higher, a fraction of six(6) months is considered as one (1) year.

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b.

c.

d.

Retrenchment equivalent to one month pay or at least one-half month pay for every year of service, whichever is higher, a fraction of six (6) months is considered as one (1) whole year. Closures or cessation of operations not due to serious business losses or financial reverses equivalent to one month pay or at least one-half month pay for every year of service, whichever is higher, a fraction of six (6) months is considered as one (1) whole year. Disease- equivalent to at least onemonth salary or to month salary for every year of service, whichever is greater, a fraction of at least 6 months shall be considered one (1) whole year. The following are the authorized cause that does not entail payment of separation pay: a. If due to severe business losses or financial reverses there is no separation pay due;; Closure due to an act of government.

a. b.

c.

d.

The losses expected are substantial and not merely de minimis in extent; The apprehended substantial loss are reasonably imminent, can be perceived objectively and in good faith by the employer; Retrenchment must be reasonably necessary to prevent the expected losses; and Expected or actual losses must be proved by sufficient and convincing evidence.

Box 24

1.

In employment termination what does procedural due process consists of- for the just causes? For the authorized? Ans. As a general rule the law requires that the employer must furnish the worker sought to be dismissed with two written notices before termination of employment can be legally effected. For termination based on just causes: a) a written notice served on the employee specifying the ground or grounds for termination, and giving to said employee reasonable opportunity within which to explain his side; b) a hearing or conference during which the employee concerned, with the assistance of counsel if the employee so desires, is given opportunity to respond to the charge, present his evidence or rebut the evidence presented against him; and c) a written notice of termination served on the employee indicating that upon due

b.

3. How does preventive retrenchment differ from redundancy? There is retrenchment where employer reduces the number of its personnel in order to prevent further losses in his business operations. There will be redundancy when for purposes of economy a company decides to reorganize its departments by imposing on employees of one department the duties performed by the employees of the other department, thus rendering unnecessary the job of the latter, the services of the employees whose functions are now being performed by the former, may be validly terminated on the ground of redundancy. 4. Explain the four retrenchment (SINS) standards of a valid

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consideration of all the circumstances, grounds have been established to justify his termination For termination of employment based on authorized causes; a) upon service of a written notice to the employee and the appropriate Regional Office of the Department at least thirty days before the effectivity of the termination, specifying the ground or grounds for termination.

dismissal or diminution in rank, compensation, benefit and privileges. There may be constructive dismissal if an act of clear discrimination, insensibility, or disdain by an employer becomes so unbearable on the part of the employee that it could foreclose any choice by him except to forego his continued employment. 4. Who has the burden of proof in criminal cases? The burden of proof rests upon the employer to show that the dismissal is for just and valid cause. Failure to do so would necessarily mean that the dismissed was not justified and therefore, was illegal. Box 25 1. If the termination is based on any authorized cause, the employee is entitled to separation pay, and nothing if it is due to a just cause. What are the exceptions? As a general rule, employee is not entitled to separation pay if cause of dismissal is due to an act imputable to him. Exceptions to these are as follows, to wit; a) When the court finds justification in applying the principle of social justice well entrenched in 1987 Constitution. If the act committed by the employee does not amount to serious misconduct or does not reflect on the employees moral character, the court may require the employer to pay as a measure of social justice, separation pay to the employee.

2.

If the termination is justified by a valid cause but done without observance of due process, is the termination legal?

Generally, no because the law is very clear as to the due process requirements that an employer who seeks to terminate the employment of its employee must notify him in writing at least 30 days before the intended dismissed. However, if an employee consented to his retrenchment or voluntarily applied for retrenchment with the employer the required previous notice to the DOLE is not necessary as the employee thereby acknowledged the existence of a valid cause for termination of his employment. 3. What is constructive dismissal? Is preventive suspension exceeding thirty days considered constructive dismissal?

Constructive dismissal is defined as quitting because continued employment is rendered impossible, unreasonable or unlikely, as an offer involving demotion in rank and a diminution in pay. Yes, preventive suspension exceeding 30 days is constructive dismissal because constructive dismissal does not always involve forthright

b) On the ground of compassionate justice.

c)

It is stipulated in the employment contract or collective bargaining agreement (CBA), or it is in by established employer practice or policy.

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2.

What are the kinds of separation pay? Under the present law and jurisprudence separation pay may be viewed in four ways or contexts: a) Separation pay as employers statutory obligation in cases of legal termination due to authorized causes under Article 283 or 284; 4.

in arriving at a complete and just resolution of the case or to serve the interests of justice or to avoid dispensing piecemeal justice. Substantive rights like the award of backwages resulting from illegal dismissal must not by a rigid and technical application of the rules. In what situations may reinstatement be denied even if the termination is invalid? a) I f between the time the wrongful discharged occurred and reinstatement order was issued, the employers commercial or financial circumstances have changed, the court cannot compel the employer, despite the unfair labor practice , to reinstate such number of employees as may exceed his needs under the altered conditions.

b) Separation pay as financial assistance, as an act of social justice, even in cases where the employee is ordered reinstated but reinstatement is not feasible;

c)

Separation pay in lieu reinstatement in illegal dismissal cases where the employee is ordered reinstated but reinstatement is not feasible;

b) Illegally dismissed employee who is approaching or has reached the retirement age shall not be ordered reinstated.

d) Separation pay as an employment benefit granted in CBA or company policy.

c)

Reinstatement not feasible due to strained relations.

3.

May backwages be awarded on appeal if the employee did not appeal its denial? 5. Earlier court decisions gave different answers: one ignored technicality adisnd granted the backwages, the other denied backwages because of technicality. By 2001 the more liberal decision has prevailed. In St. Michaels Institute, the court state that, The NLRC did not award backwages to the respondents or that the respondents themselves did not appeal the NLRC decision does not bar the Court of Appeal from awarding backwages. While as a general rule, a party who has not appealed is not entitled to affirmative relief other than the ones granted in the decision of the court below, the Court of Appeals is imbued with sufficient authority and disretion to review matters, not otherwise assigned as or rrors on appeal, if it finds that their consideration is necessary In termination disputes, what is indemnity? May it be imposed in addition to backwages ? Indemnity is meant to vindicate or recognize the right of an employee to due process which have been violated by the employer. The Wenphil doctrine says essentially that a dismissal for a valid reason is legal and valid, but the employer who does not observe procedural due process must pay some indemnity. As a general rule, indemnity is imposed for the failure of the employer to observe due process requirement as enunciated in the Constitution. The Serrano ruling which grants full backwages is not meant to do away with indemnity to the employee

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whose right to due process was violated; that is, the indemnity is aside from the full wages. Backwages-is based on equity to workers for earnings lost due to their illegal dismissal from work.

6.

Is a manager personally liable for the illegal dismissal of an employee? As a general rule the manager is not personally liable for the illegal dismissal of an employee as enunciated in Sunio Doctrine. Generally, officers of a corporation are not personally liable for their official acts unless it is shown that they have exceeded their authority. However, the legal fiction that a corporation has a personality separate and distinct from stockholders and meto evadembers may be disregarded. Where the incorporators and directors belong to a single family, the corporation and its members can be considered as one in order to avoid its being used as an instrument to commit injustice, or to further an end subversive of justice. The shield of corporate fiction should be pierced when it is deliberately and maliciously designed to evade financial obligations to employees. Directors are guilty of gross negligence or bad faith in directing the affairs of the corporation shall be liable jointly and severally for all damages resulting therefrom suffered by the corporation, its stockholders or members or other persons.

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