Labrev Reviewer

Labor Review Notes – Atty. Ungos

Intra-union Dispute – a controversy between and among union members includes grievances arising from any violation of the rights and conditions of union membership, violation of or disagreement over any provision of the union’s contribution and by-laws, or disputes arising from chartering or affiliation of union. Inter-union disputes – a controversy between and among legitimate labor unions Compromise – a contract whereby the parties by making reciprocal concessions avoid litigation or put an end to one already commenced Conditions for compromise through lawyer or representative 1. when the client has expressed his consent to compromise 2. when the lawyer or representative is equipped with a special power of attorney Remedy if compromise agreement is violated 1. file the necessary action or motion to enforce the compromise 2. regard the compromise as recorded and insist upon his original demand Remedy if compromise judgment is violated 1. file the motion for execution, in case of non-compliance 2. file an action to annul the compromise judgment on the ground of mistake, fraud, violence, intimidation, undue influence or falsity in the execution of the compromise embodied in the judgment. 3. file a petition for relief from judgment under Rule 38 of the Rules of Court on the ground that the judgment was obtained through fraud, mistake or excusable negligence Contract-Bar Principle – the existence of a duly registered collective bargaining agreement will bar the holding of a certification election. Exceptions: 1. those entered into with a labor organization which has not been certified as the sole and exclusive bargaining representative but merely accorded voluntary recognition by the management despite the existence if another labor organization seeking recognition 2. those which are not duly registered with the Bureau of Labor Relations or the appropriate regional office of the Department of Labor and Employment 3. those which are incomplete, specifically those which do not provide for economic benefits of the employee 4. those hastily entered into prior to or during the 60-day freedom period 5. those which can no longer foster industrial peace and stability because of servism in the union Labor Organization – a union or association of employees which exists in whole or in part for the purpose of collective bargaining or of dealing with employers concerning terms and conditions of employment Independent Union – a labor organization operating at the enterprise level whose legal personality is derived through independent registration

1. 2. 3.

falsification or serious irregularities in the application for registration or its supporting documents non-compliance with the requirements for registration, particularly the certificate and attestation requirements failure to complete the registration requirements within 30 days from notice

Federation or National Union – a labor organization with at least 10 affiliates or chartered locals, each of which must be a duly recognized or certified collective bargaining agent Affiliates – are independently registered unions, hence, they have a legal personality of their own, separate and distinct from that of their mother union Chartered locals – are not independently registered unions, their legal personality is derived from their mother union or federation, upon issuance of a certificate of creation of chartered local Grounds for Cancellation of Union Registration 1. Misrepresentation, false statement or fraud in connection with – a. adoption or ratification of the construction and by-laws or amendments thereto, the minutes of ratification, and the list of members who took part in the ratification b. election of officers, minutes of the election of officers, and the list of voters c. preparation of financial reports 2. acting as a labor contractor or engaging in the cabo system 3. entering into a collective bargaining agreement with terms and conditions of employment below the minimum standard set by law 4. asking for or accepting attorney’s fees or negotiation fees from employees 5. checking-off special assessments or other fees without individual written check-off authorization except for mandatory activities under the labor code 6. violation of Art 241 of the Labor Code regarding rights and conditions of membership in a labor organization 7. failure to submit its constitution and by-laws or amendments thereto, the minutes of ratification and the list of members who took part in the ratification, within 30 days from adoption or ratification 8. failure to submit the list of newly elected/appointed officers and their postal address, list of voters and minutes of the election of officers, within 30 days from election 9. failure to submit annual financial reports within 30 days after the closing of every fiscal year 10. failure to submit list of individual members once a year or whenever required 11. failure to comply with any of the requirements prescribed under Articles 234 and 237 of the Labor Code Requisites for Valid Levy of Special Assessment 1. there must be a written resolution by the majority of all the union members 2. the written resolution must be pursued in a general membership meeting duly called for the purpose

Grounds for Denial of Registration Personal Notes of Joanne Carla Catalla, Compiled by: Kalai Rosal and Shala Sta. Maria

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3. 4.

the minutes of the meeting including the list of all members present, the votes cast, and the purpose of the special assessment should be recorded by the secretary of the labor organization the record shall be attested to by the president of the labor organization

Qualification of Union Officers 1. he must be an employee of the company where the union operates 2. he must be a member in good standing in the subject labor organization 3. he has not been convicted of a crime involving moral turpitude, or if convicted, he has not been granted absolute pardon Grounds for Expulsion/Impeachment of Union Officers 1. violation of the rights and conditions of membership in a labor organization as set forth in Article 241 of the Labor Code 2. Commission if irregularities in the approval of the resolution regarding compensation of union officers 3. Membership in another labor organization 4. Culpable violation of the constitution and by-laws of the union Worker’s association – an organization of employees created not for collective bargaining purposes, but for the mutual aid and protection of its members or for any other legitimate purpose other than collective bargaining Kinds of Labor Unions 1. Industrial union – labor organization composed of workers in a particular industry 2. Craft union – labor organization composed of workers engaged in a particular trade or occupation of a kind that requires skill and training 3. Company Trade Union – labor organization composed of employees in the same company 4. Company Union – labor organization, the formation function or administration of which has been assisted by any act defined as unfair labor practice Managerial Employee – one who is vested with powers or prerogatives to lay down and execute management policies and/or hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employers Supervisory Employees – are those, who in the interest of the employer, effectively recommend the laying down and execution of management policies and/or hiring, transfer, suspension, lay-off, recall, discharge, assignment or discipline of employees 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 Cooperative – an organization composed primarily of small producers and of consumers who voluntarily join together to form business enterprises which they themselves own, control and patronize Unfair Labor Practices – acts that transgress the right of employees to selforganization Personal Notes of Joanne Carla Catalla, Compiled by: Kalai Rosal and Shala Sta. Maria

Totality of Conduct Doctrine – the culpability of an employer’s remarks are to be evaluated not only on the basis of their implicit implications, but should be appraised against the background of and in conjunction with collateral circumstances Yellow Dog Contract – an agreement which requires as a condition of employment, that a person or employee: a. declare that he is not a member of a labor organization b. refrain from joining a labor organization c. withdraw his membership in a labor organization d. quits his employment upon joining a labor organization Disestablishment – an order requiring an employer to withdraw its recognition of a company dominated union as the employees’ collective bargaining agent ad a bona fide and sufficient communication to the employees of such withdrawal of recognition Duty to Bargain Collectively – the performance of a mutual obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages, hours of work and all other terms and conditions of employment Gross Violation – flagrant and/or malicious refusal to comply with the economic provisions of the collective bargaining agreement Type of Union Security Agreements: 1. Closed Shop – an arrangement whereby the employer binds himself to hire only members of the contracting union who must continue to remain members of good standing to keep their jobs 2. Union Shop – an arrangement whereby an employee is allowed to hire nonmembers of the contracting union on condition that they should join the contracting union within specified period of time and must continue to remain members in good standing to keep their jobs 3. Maintenance of Membership – an arrangement which requires those who are members of the contracting union at the time of the execution of the CBA to maintain their membership in good standing during the lifetime of the CBA as a condition of continued employment 4. Agency Shop – an arrangement which does not require union membership but any support from the employees within the bargaining unit in the form of agency fees, as a condition for continued employment 5. Preferential Hiring – an arrangement whereby the members of the contracting union are given preference in engagement, all circumstances being equal, and for them to maintain their membership in good standing during the lifetime of the CBA as a condition for continued employment Limitations on Closed Shop Agreement 1. Cannot be enforced against employees who are already members of another union at the time of the signing of the CBA 2. Cannot be enforced against employees whom the union refused admission to membership without any reasonable ground therefore 3. Cannot be enforced against employees who are members of religious sects which prohibit their members from joining a labor organization 2


Causing an Employer to Discriminate Against an Employee 1. Cause or attempt to cause an employee to discriminate against an employee 2. Discriminate against an employee with respect to whom membership in such organization has been denied 3. Terminate an employee on any ground other than the usual terms and conditions under which membership is made available to other members. Featherbedding – an act of causing or attempting to cause an employee to pay or deliver any money or other things of value for services which were not performed or not to be performed Collective bargaining – negotiating toward a collective bargaining agreement Jurisdictional Preconditions of Collective Bargaining 1. Proof of majority representation on the part of the labor organization 2. Voluntary recognition by the employer or certification of the labor organization as the collective bargaining representative of the employees covered by the bargaining unit 3. Demand to bargain under Article 250(a) of the Labor Code Remedies in Case of Deadlock 1. Call upon the NCMB to assist them in arriving at an amicable settlement 2. Submit the matter for compulsory arbitration by filing a complaint with the NLRC 3. Submit the matter for resolution by a voluntary arbitrator 4. Declare a strike or lock out Essential Elements of the Duty to Bargain Collectively 1. 1. The union which seeks to represent the collective bargaining unit is a legitimate labor organization 2. it is composed of employees of the supposed employer 3. chosen or designated by the majority of the employers within the bargaining unit as their collective bargaining representative Duty to Bargain After Execution of CBA 1. not to terminate or modify the CBA during its lifetime 2. to ask for modification of the CBA only during the freedom period 3. to observe the terms and conditions of the CBA during the freedom period and until a new agreement has been reached Freedom Period – the 60-day period prior to the expiration of the CBA it is the time when the bargaining agent can validly resign from the union and the time for a local union to disaffiliate from its mother federation without being subjected to sanctions it is the time of challenging the majority status of the incumbent collective bargaining agent through a petition for certification election Hold-Over Principle – in the absence of a new collective bargaining agreement, the parties must maintain agreement, the parties must maintain the status quo and must continue in full force and effect the terms and conditions of the existing agreement until a new agreement is reached Personal Notes of Joanne Carla Catalla, Compiled by: Kalai Rosal and Shala Sta. Maria

Collective Bargaining Agreement – a contract by and between an employer and the collective bargaining representative of the employer within an appropriate bargaining unit, concerning wages, hours of work and all other terms and conditions of employment Effectivity of the Renegotiated Agreement 1. if the parties are able to come to an agreement within 6 moths from expiry of the third year of the collective bargaining agreement, the effectivity of the renegotiated agreement shall retroact to the day immediately following the expiry if the third year 2. if the agreement was arrived at after 6 months of negotiations, the parties – not anybody else – are given the discretion to fix the effectivity thereof 3. if 6 months have elapsed and the negotiation result in a deadlock, and to resolve the impose, the matter is submitted for arbitration, the effectivity of the renegotiated CBA shall be the date when the arbitrator renders his final decision When Injunction in Labor Disputes may Issue 1. in case of actual or threatened commission of any prohibited or unlawful acts, or when necessary to require the performance of a particular act, 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 2. in case of a labor dispute causing or likely to cause a strike or lock out I an industry indispensable to the national interest Who May Issue Injunctions in Labor Disputes 1. NLRC – in ordinary labor disputes in causes arising from any violation of Art. 264 of the Labor Code 2. Secretary of Labor – in labor disputes causing or likely to cause a strike or lockout in an industry indispensable to the national interest Bargaining Unit – refers to a group of employees sharing mutual interests within a given employer unit, comprised of all or less than all of the entire body of employees in the employees unit or any specific occupational or geographical grouping within such employer unit Factors in Fixing the Appropriate Collective Bargaining Unit 1. Will of the employee 2. Affinity and unity of employees’ interest 3. Prior collective bargaining history 4. Similarity of employment status Globe Doctrine – the express will or desire of the employees may be considered in determining the appropriate collective bargaining unit Community of Interest Rule – the proper bargaining unit may be fixed on the basis of the affinity and unity of the employees’ interest Exception to One Company One Union Policy 3


1. 2. 3.

When supervisory employees organize themselves into a bargaining unit separate and distinct from the bargaining unit of rank-and-file employees Where the employees’ unit has to give way to other bargaining units, like the craft unit, plant unit, or subdivision thereof When a certain class of employees are excluded from the coverage of the bargaining unit

4. 5. 6. 7. 8. 9.

inappropriate bargaining unit contract-bar rule voluntary recognition bar rule election-bar rule negotiation-bar rule deadlock-bar rule

Voluntary Recognition – is the process by which a legitimate labor organization is acknowledged by the employer as the exclusive collective bargaining agent in a bargaining unit

When a Union Lacks Legal Personality: 1. if it is not registered with DOLE 2. if its registration has been concealed by virtue of a final judgment

Certification Election – is the process of determining through secret ballot the sole and exclusive bargaining representative of the employees in an appropriate bargaining unit

Effect if Withdrawal of Consent a. if made before the filing of the petition for certification election – the Med-Arbiter may not order the holding of a certification election b. if made after the filing of the petition for certification election – the Med-Arbiter can still order the holding of a certification election

Conditions for Holding a Run-off Election 1. The certification election should have at least 3 choices 2. None of the choices obtained a majority of the valid votes cast 3. The total number of votes for all contending unions is at least 50% of the number of votes cast 4. There are no challenged ballots, which can materially alter the results Substitutionary Doctrine – employees cannot revoke a validly executed collective bargaining agreement by the simple expedient of changing their bargaining agent Who May File a Petition for Certification Election Gen Rule: only a legitimate labor organization can file a petition for certification election federation in behalf of local chapter Exception: the employer can file a petition for certification election when it is requested by a legitimate labor organization to bargain collectively Proper Time for Filing a Petition for Certification Election a. if there is no collective bargaining agreement/is not duly registered – petition for certification election can be filed anytime b. with collective bargaining agreement – petition for certification election can be filed only during the freedom period By-Stander Principle – a certification proceeding, the employer is a mere by-stander because the proceeding is the sole concern of workers Exceptions: a. when the employer files a petition for certification election pursuant to Art 258 of the Local Code because it was requested to bargain collectively b. when the employer invokes certain valid defenses, in which case, it becomes imperative to let the employer participate in the proceedings in order that his interest could amply be protected Employer’s Defenses: 1. lack of employer-employee relationship 2. lack of legal personality on the part of the petitioning union 3. lack of 25% written consent Personal Notes of Joanne Carla Catalla, Compiled by: Kalai Rosal and Shala Sta. Maria

When the Bargaining Unit is Inappropriate 1. if it fragments the employer unit 2. if the composition thereof is a mixture of rank-and-file and supervisory employees or a mixture of supervisory and managerial employees 3. if it is composed of managerial employees 4. if it is composed of members of a cooperative Contract Bar Rule – if there is a duly registered CBA, no petition questioning the majority status of the incumbent bargaining unit shall be entertained and no certification election shall be conducted outside of the 60-day period immediately before the expiry of the 5-year term of the CBA Voluntary Recognition Bar Rule – voluntary recognition duly entered in the roster of legitimate labor organization shall bar the filing of a petition for certification election for a period of 1 year from the date of entry of voluntary recognition Election-Bar Rule – no petition for certification election may be filed within 1 year from the date if a valid certification election, consent election or run-off election Negotiation-Bar Rule – no representation question may be entertained if, within 1 year period from the date of entry of voluntary recognition, certification election, or run-off election, the duly recognized or certified union has commenced negotiations with the employer in accordance with Art. 250 of the Labor Code Deadlock-Bar Rule – no representation question may be entertained if, before the filing of a petition for certification election, a bargaining deadlock to which an incumbent or certified bargaining agent is a party, had been submitted to a conciliation or arbitration or had become the subject of a valid notice of strike or lockout Grievance -‐ Is a dispute or controversy between an employer and the collective bargaining agent, individual employee or group of employees, arising from 4


the interpretation or implementation of the collective bargaining agreement or interpretation or enforcement of company policies. Grievance Procedure 1. An employee shall present his grievance or complaint orally or in writing to the shop steward. Upon receipt thereof, the shop steward shall verify the facts and determine whether or not the grievance is valid. 2. If the grievance is valid, the shop steward shall immediately bring the complaint to the employee’s supervisor. The shop steward, the employee and his immediate supervisor shall exert efforts to settle the grievance at their level. 3. If no settlement is reached, the grievance shall be referred to the grievance committee, which shall have 10 days to decide the case. Voluntary Arbitration - is a system whereby the parties agree to refer their dispute to an impartial 3rd person for a final and binding resolution. Voluntary Arbitrator Is a person: 1. accredited as such by the NCMB or 2. chosen or designated by the parties in the CBA or 3. one chosen with or without the assistance of the NCMB pursuant to a selection procedure agreed upon in the CBA, or 4. Any official who may be authorized by the SOLE to act as voluntary arbitrator upon the written request of the parties to a labor dispute Whose function is to resolve the disputes submitted to it by the parties. Jurisdiction of Voluntary Arbitrators 1. Unresolved grievance arising from interpretation or implementation of a CBA. 2. Unresolved grievance arising from interpretation or enforcement of company policies, 3. Disputes arising from wage distortion caused by a wage order 4. Disputes arising from interpretation and implementation of the productivity incentive programs under RA 6971. Jurisdictional Preconditions 1. The dispute has been brought to the grievance machinery for resolution; 2. The grievance machinery failed to resolve the dispute; 3. The parties agree to submit the dispute for voluntary arbitrator Jurisdiction over Termination Disputes General Rule: Disputes over validity of dismissal or severance of employment do not fall within the jurisdiction of the voluntary arbitrators Exception: When the issue pertains to interpretation or implementation of company personnel policies. Strike - Any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute. Kinds of Strikes Personal Notes of Joanne Carla Catalla, Compiled by: Kalai Rosal and Shala Sta. Maria

1. 2.

Unfair Labor Strike- a concerted activity stages as a result of the ER’s ULP. Economic Strike- staged to enforce wage or other concessions from the employer which he is not required by law to grant.

Forms of Strikes 1. Walk Out- employees leave their workplace and establish themselves outside the plant and refuse access to the owners and other employees who want to work. 2. Sit Down- strikers establish themselves within the plant, stops its production and refuse access to the owners and other employees who want to work. 3. Slow Down- strikers merely retard production. 4. Mass Leave- strikers take time off work simultaneously. 5. Wild Cat- staged without the sanction or authorization of the union. 6. Primary strike- directed against the employer because of a labor dispute. 7. Secondary Strike- directed against the employer connected by product or employment with alleged unfair labor conditions or practice. 8. Sympathy Strike- staged to make common cause with other strikers in other establishments or companies, without the existence of any dispute between the striking employees and their employer. 9. General Strike- directed against all the employers, participated in by the workmen irespective of the employees for whom they are working. 10. Particular Strike- directly against the striker’s employer. Requisites of a Valid Strike 1. It should be staged by a certified or duly recognized collective bargaining representative or in the absence thereof, by a legitimate labor organization. 2. It should be declared only on the grounds specified by law. 3. It should comply with the requirements presecribed by law. Strike in Unorganized Establishments General Rule: only a certified or duly recognized collective bargaining representative can declare a strike. Exception: In the absence of a certified or duly recognized collective bargaining representative, a strike can be declared by a legitimate labor organization in the establishment, but only on the ground of ULP. Legal grounds for Declaring a Strike 1. Collective Bargaining Deadlock 2. ULP Legal Requirements of a Strike 1. Notice of strike 2. Strike vote 3. Strike vote report Notice of Strike -‐ Filed with the regional branch of the NCMB and served to the company at least: a. 30 days before the intended strike if the ground of the strike is a CBA deadlock. b. 15 days before the intended strike if the ground is ULP. 5


2. Cooling off period- is the span of time allotted by the law for the parties to settle their disputes in a peaceful manner before declaring a strike. Duration: 30 days- deadlock 15 days- ULP General Rule: the observamce of the cooling off period is MANDATORY, hence, the union cannot strike before the lapse of the same. Exception: When there is UNION BUSTING, cooling off period need not be observed; the union may strike after the strike vote and its submission to the NCMB. Union Busting- dismissal from employment of a union officer duly elected in accordance with the constitution and by-laws. Strike Vote- voting of the total union membership, through secret ballot in a meeting or referendum called for the purpose, for the approval of a declaration to strike. Strikers in medical institutions -‐ strongly discouraged. -‐ Should a strike be declared, the striking union must provide and maintain an effective skeletal workforce of medical and health personnel whose movement and services shall be unhampered and unrestricted. Return to Work Order- if this is issued by the SOLE, the strikers are bound to immediately compky with it even if a motion for reconsideration is filed. Strikers who defy a return to work order may be declared to have lost their employment status. Employment Status of Workers- while out on strike, it is not considered that the strikers have abandoned their employment but rather have only ceased from their labor. Except: Union officers who knowingly participate in the commission of illegal acts during a strike. Reinstatement of Strikers General Rule: striking employees are entitled to reinstatment, regardless of whether or not the strike was the consequence of the employer’s ULP. Exception: 1. Union officers who knowingly participate in an illegal strike. 2. union officers or members who knowingly participate in the commission of illegal acts during the strike 3. Strikers who defy a return to work order. Wages during Strike General Rule: strikers are not entitled to their wages even if the strike is legal. Exception: Backwages may be awarded a. when supposed strikers did not strike but were locked out; b. where the strikers voluntarily and unconditionally offered to return to work, but the employer refused to accept the offer without justifiable cause. Legality of Strike 1. If the purpose is lawful and the means employed are lawful, the strike is legal. Personal Notes of Joanne Carla Catalla, Compiled by: Kalai Rosal and Shala Sta. Maria

3.

If declared both for legal and illegal purpose, the strike is illegal in its entirety. If the purpose is lawful but the emans employed are unlawful, the strike is illegal.

Illegal Strikes 1. Strike staged on grounds other than those prescribed by law; 2. Without complyng with the legal requirements of a strike; 3. Declared before the lapse of the cooling off period; 4. Declared after the SOLE has assumed jurisdiction and the dispute was certified for compulsory arbitration; 5. Declared after notice of strike has been converted into preventive mediation; 6. Carried out with the use of force, violence, physical injury, sabotage and unnecessary obscene language; 7. Staged in violation of a no strike stipulation in the CBA; 8. Without giving the employer ample time to consider and act on the demands of the union; 9. Without exhausting or availing of the grievance machinery under the CBA; 10. Without first resorting to pacific meance provided by law; 11. Declared to correct wage distortion; 12. Stage to compel the employer to negotiate a CBA during the pendency of a PCE; 13. Staged by minority union to compel the employer to bargain with it despite existence of a CBA; 14. Declared for trivial, unjust or unreasonable purpose; 15. Simple violation of a cba; 16. Involving inter-union or intra-union disputes; 17. Declared without first having bargained collectively. Current Doctrine -‐ an illegal strike does not automatically warrant the wholesale dismissal of strikers. Only the following strikers can be penalized with loss of employment status: a. union oficers who knowingly participate in an illegal strike; b. union officers or members who knowngly participate in the commission of illegal acts during a strike. Illegal Acts 1. violence 2. physical injuries 3. coercion intimidation 4. possession of deadly weapon 5. obstruction of free ingress to and egress from the employer’s premises 6. defiance of a return to work order or assumption/certification order. Injunction against Strikers General Rule: A strike cannot be enjoined even if it may appear to be illegal because a strike is a weapon that the law grants the employees for their protection and advancement of their interest. Exceptions: 6


1. 2. 3.

declared against an industry indispensable to national interest, in which case, the SOLE may assume jurisdiction or certify the dispute for compulsory arbitration; If staged by employees who are not accorded the right to strike; If staged because of an inter-union or intra-union dispute.

Innocent By-stander doctrine - the right to strike and picket may be regulated at the instance of 3rd parties or innocent by-standers if it appears that the inevitable result of its exercise is to create an impression that a labor dispute to which they have no connection or interest exists between them and the picketing union constitute an invasion of their rights. Picketing- is the marching to and fro before the premises of an establishment involved in a dispute, generally accompanied by the carrying and display of a sign, placard or banner bearing statements in connection with the dispute. Injunction against PicketingGeneral Rule: Picketing cannot be enjoined because it is part of the freedom of speech guaranteed by the constitution. Exception: 1. If necessary to protect the rights of 3rd parties or innocent bystanders. 2. If the picketing is carried out through the use of illegal means. 3. If the picketing is carried out through the use of violence and other illegal acts. Boycott- is a combination formed for the purpose of restricting the market of an individual or group of individuals. Forms of Boycott 1. Primary Boycott- one which is applied directly and done to the offending person by withdrawing from him all business relations on the part of the organization that initiated the boycott. 2. Secondary- a combination to exercise coercive pressure upon the customer of an employer or prosepective, in order to cause them to withold or withdraw patronage from him through fear of loss or damage to themselves should they deal with him. Lockout - A temporary refusal of an employer to furnish work or a result of an industrial labor dispute. Requisites of Valid Lock Out 1. Decided only on grounds specified by law 2. it should comply with the requirements prescribed by law. (same as strike) Illegal Lock Outs 1. on the ground other than those prescribed by law. 2. without complying with any of the legal requirements 3. before the lapse of the cooling of period or 7 day lock out ban. 4. declared after the SOLE has assumed jurisdiction over the dispute or certified the same for compulsory arbitration. 5. declared without first having bargained collectively.

Industries Indispensable to National Interest 1. Airline Company 2. Educational Institutions 3. Drug Company 4. Medical Institutions 5. Expert Oriented Enterprises 6. Manufacturing Companies 7. Mining Company 8. Brokerage Firm Enforcement of Assumption/Certification Orders - Once an assumption or certification order is issues, the striking workers must, therefore, cease and desist from any and all acts that tend to undermine the authority of the secretary of labor and employment, regardless of their motives or validity of their claims. Effect of Defiance - An assumption or certification order automatically carries with it a return to work order even if the directive to return to work is not expressly stated in the order. If the strikers do not return to work and an illegal act was committed, whether they be union officers or members, they may be declared to have lost their employment status. Limitations of the Right to Strike or Lock Out A strike or lock out cannot be declared: 1. Without first having bargained collectively. 2. Without first having filed a notice of strike/lockout 3. without the necessary strike/lockout vote having been obtained and reported to the DOLE. 4. When the SOLE as assumed jurisdiction or certified the same to compulsory arbitration. 5. During the pendency of cases involving the same issues/ground for the strike/lockout. Limitation on Right to Picket Persons or employees engaged in picketing are forbidden from: 1. Committing any act of violence , coercion or intimidation. 2. Obstructing the free ingress or egress from the employers premises. 3. Obstructing public thoroughfares. Strike Bearer- a person who obstructs, impedes or interferes with by force, violence, coercion, threats or intimidation any peaceful picketing by an employee during any labor controversy affecting wages, hours of work or in the exercise of the right to self organization or collective bargaining. Improved Offer Ballots- referendum conducted by the DOLE wherein the strikers vote by secret ballot on whether or not to accept the improved offer of management. Reduced Offer Ballot- a referendum conducted by the DOLE wherein the board of directors, trustees or partners holding the controlling interest in the case of a partnership, vote by secret ballot on whether or not to accept the reduced offer of the strikers. Arrest or Detention of Union Officers

Personal Notes of Joanne Carla Catalla, Compiled by: Kalai Rosal and Shala Sta. Maria

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General Rule: Union officers, members or organizer cannot be arrested or detained for union activities without previous consultation with the secretary of labor. Exception: On the ground of national security and public peace or in case of commission of a crime. Trade Union Activities 1. organiztaion, formation and administration of labor organization. 2. negotiation and administration of CBA. 3. All forms of concerted union action. 4. organizing, managing, or assisting union conventions, meetings, rallies, teach-ins, seminars, conferences and institutes. 5. organizational form of participation or involvement in representation proceedings, representation, elections, consent elections and union elections. 6. other activities or actions analogous to the foregoing.

circumventing the rights of the employees under special laws or under valid agreements, the exercise of such right should be upheld. f. g. h. i.

abolish department or section reorganize and abolish positions spin off portion of its business close down its business -‐ the right to close down the establishment is a privilege of management considering the many factors that are linked with business and capital which can only be solved and determined by management.

j.

transfer business ownership -‐ within the employer’s legitimate sphere of management control of the business to adopt economic policies or make some changes or adjustments in their organization or operations that would insure profits to itself or investment of stockholders. -‐ The buyer/transferee is under no legal duty to absorb the employees of the seller/transferor. The most that could be done for reasons of public policy and social justice, is for the buyer/transferee to give preference to qualified employees in filling up vacancies. -‐ An innocent transferee/buyer of a business establishment is not liable for post-ULP of the previous owner, except when the liability therefor is assumed by the new owner under the contract of the sale or when the owners participation in thwarting or defeating the rights of the employees. -‐ If the transfer was done in bad faith the liability should be shared by both transferor and transferee. discipline employees -‐ it is the right of the employer to promulgate rules and regulations and punish employees violating the same. Disciplinary Penalties i. Warning- caution for the erring employee to refrain from committing the same offense in the future under the pain of a more severe penalty. ii. Reprimand- accompanied by censure or sharp scolding. iii. Suspension- temporary separation of an employee from service. iv. Demotion- transfer of an employee to a lower rank or position with corresponding reduction in salary. v. Dismissal- severs employment ties and could well be the economic death sentence of an employee.

MANAGEMENT PREROGATIVES -‐ acts by which one directing a business is able to control the variables thereof so as to enhance the chances of making profits. The following are Management Prerogatives a. choose whom to hire -‐ the employer has the right or is at liberty to choose who will be hired and who will be declined. -‐ The right to place new employees on probationary status Promotion -‐ advancement from one position to another with an increase in duties and responsibilities and usually accompanied by an increase in salary. b.

transfer employees -‐ On the basis of its assessment and perception of its employees’ qualifications, aptitudes and competence, the employer is free to move its employees around in the various areas of its business operations in order to ascertain where they will function with maximum benefit to the company. Transfer- is the movement of an employee from one position to another position of the equivalent rank, level or salary, without break in service. Limitations on the Right to Transfer i. cannot be used as a sanction for union activities. ii. Cannot be used to get rid of an unwanted employee. iii. Cannot be used as subterfuge for demotion.

c. d. e.

reduce personnel for economic reasons reduce working hours/days change working hours -‐ On employees, has the prerogative to change the working hours of its employees whenever the exigencies of the service so require. -‐ As long as the prerogative is excused in good faith for the advancement of the employer’s interest and not for the purpose of defeating or

Personal Notes of Joanne Carla Catalla, Compiled by: Kalai Rosal and Shala Sta. Maria

k.

Factors Determining Appropriate Penalty -‐ nature of the offense -‐ position of the employee -‐ degree of damage -‐ past record of the employee -‐ length of service of the employee Illegal Dismissal- termination of employment that is expressly prohibited by law. 8


When Dismissal is Illegal a. To dismiss an employer who has filed a complaint or instituted a proceeding under Title 2 of the Labor Code or has testified or is about to testify such proceedings. b. To dismiss a female employee for the purpose of preventing her from enjoying the benefits granted by the Labor Code. c. To dismiss a female employee on account of her pregnancy, or while on leave due to her pregnancy. d. To dismiss a female employee upon returning to her work for free that she may get pregnant again. e. To dismiss an employee for having given or being about to give testimony under the Labor Code. f. To dismiss an employee who was called upon by the State to fulfill a military or civic duty during the fulfillment of such duty. Unjust Dismissal- if the services of an employee are terminated without just causes specified in Art. 282 of the Labor Code. RELIEFS for Unjust Dismissal or Illegal Dismissal of Migrant Workers a. full reimbursement of his placement fee with 12% interest per annum. b. Salaries for the unexpired portion of his employment contract or 3 months salary for every year of the unexpired term whichever is less. RELIEFS for Unjust Dismissal or Illegal Dismissal of Locally Employed Workers a. Reinstatement without loss of seniority rights and other rights b. Backwages, inclusive of allowances and to other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. c. Moral and exemplary damages, if the dismissal was tainted with malice or bad faith. d. Separation pay, under certain conditions. REINSTATEMENT - Refers to a restoration to a state from which one has been removed or separated. It is the return to the position from which he was removed. Alternative Reliefs if Reinstatement is No Longer Possible -‐ If the position no longer exists at the time of reinstatement, the unjustly dismissed employee should be given a substantially equivalent position. -‐ If a substantially equivalent position is not available, reinstatement is rendered impossible, hence, the relief available to the employee is separation pay equivalent to at least 1 month salary for every year of service plus backwages if warranted. -‐ When considerable time has elapsed since the employee’s dismissal, so that reinstatement would now be impractical and hardly in the interest of the parties, reinstatement is no longer feasible, hence, separation pay may be awarded. -‐ When the reinstatement of the illegally dismissed employee is rendered unfeasible because he has reached the retirement age of 60, the relief of separation pay is not feasible. The employee concerned would only be Personal Notes of Joanne Carla Catalla, Compiled by: Kalai Rosal and Shala Sta. Maria

entitled to backwages up to the time when he reached the retirement age plus his retirement pay. Effect of Employment Elsewhere -‐ An unjustly dismissed employee cannot be denied the right to reinstatement simply because he has obtained employment elsewhere. -‐ The bare fact of his being actually employed elsewhere in any capacity cannot affect his right to reinstatement for the option whether to return to his employment or not, is upon the employee to decide. Circumstances that Preclude Reinstatement a. Transfer of Business of Ownership b. Business Reverses c. Abolition of Position d. Closure of Business e. Incapacity of the Employee f. Attainment of Retirement Age g. Conviction in Criminal Case h. Laches i. Prescription j. When the complainant merely prays for separation pay k. Strained Relations When to invoke the Doctrine of Strained Relations -‐ The matter of strained relations should be raised and proved before the Labor Arbiter, unless the strained relations arose after the filing of the case. -‐ It may also be raised during the execution proceedings as a supervening event, which would render execution unjust and inequitable. Remedy for Refusal to Comply with a Reinstatement Order -‐ The remedy is not a separate action for illegal dismissal but a motion for issuance of a writ of execution. -‐ If the employer still refuses to comply with the reinstatement order despite the issuance of a writ of execution, the remedy is not the grant of conditional back wages, but contempt proceedings. When is there No Award of Backwages a. When there is good faith on the part of the employer in dismissing the employee. b. When the cessation of employment was brought about by neither dismissal nor abandonment. c. When the cessation of the employment due to the employee’s refusal to work. Deduction of Earning Elsewhere Doctrine -‐ Earnings obtained by the employee elsewhere should be deducted from the backwages awarded to the employee pursuant to the principle that employees should not be permitted to enrich themselves at the expense of their employer and also because of the law’s abhorrence for double compensation. 9


Mercury Drug Doctrine -‐ The backwages due to an illegally dismissed employee is fixed at a certain amount without deduction or qualification. Bustamante Doctrine -‐ Backwages to be awarded to illegally dismissed employee should not, as a general rule, be diminished or reduced by the earnings derived by him elsewhere during the period of his illegal dismissal. Circumstances that Forestall the Running of Backwages a. death b. physical/mental incapacity c. attainment of retirement age d. permanent/temporary closure of establishment e. confinement in prison f. re-employment if the dismissed employee

Exception: Separation pay may be awarded as a measure of social justice even if the dismissal is to be found valid and justified, but only in those instances where the employee was validly dismissed for a cause other than serious misconduct or offenses reflecting on his moral character. An employee who resigns from his employment is not entitled to separation pay, except when it is stipulated in the employment contract, CBA or established employer practice or policy. An employee who retires from his employment is not entitled to separation pay- he is entitled only to retirement pay. RETIREMENT -‐ Is the result of a bilateral act of the parties, a voluntary agreement between the employer and the employees whereby the latter after reaching a certain age agrees and/or consents to swear his employment with the former.

OTHER BENEFITS a. transportation and emergency allowance b. vacation leave or service incentive leave c. 13th month pay

LIABILITY OF CORPORATE OFFICERS General Rule: Corporate officers cannot be personally or solidarily liable with the corporation for backwages, damages or other many claims of employees, even if they were impleaded in the complaint.

Other Benefits DO NOT INCLUDE the following: a. facilities that are to be used only during the official tour of duty and not for a private or personal purpose. b. Benefits that are enjoyable only if approved by the employer.

Exceptions: a. if the corporate officer acted in bad faith. b. If the corporation is no longer existing and unable to satisfy the judgment in favor of the employee, in which case the officer should be held liable for acting on behalf of the corporation.

SEPARATION PAY -‐ Intended to provide the employee money during the period in which he will be looking for another employment. -‐ Sort of an aid given to an employee upon his separation from service so that he may have something on which to fall back when he loses his means of livelihood. When Separation Pay is Proper: a. Redundancy b. Installation of labor-saving devices c. Retrenchment d. Closure of Establishment not due to serious business losses e. Disease f. Lay-off/suspension of operations for more than 6 months Circumstances wherein an employee who has been found unjustly dismissed is entitled to Separation Pay a. If the reinstatement of the employee has been rendered impossible by supervening events. b. If the reinstatement of the employee is no longer feasible. Entitlement to Separation Pay of an Employee who was Dismissed for a Just and Valid Cause General Rule: The separation from work of an employee for a just cause does not entitle him to separation pay. Personal Notes of Joanne Carla Catalla, Compiled by: Kalai Rosal and Shala Sta. Maria

Regular Employment -‐ where the employee has been engaged to perform activities that are usually necessary or desirable in the usual business or trade of the employer. Project Employment -‐ is a job that is confined to a specific project or undertaking, the completion or termination of which has been determined at the time of the engagement of the employee, regardless of the number of years that it would take to finish the undertaking. Specific Project or Undertaking -‐ an activity which is not commonly or habitually performed. -‐ a type of work which is done on a daily basis but only for a specific duration of time until completion. Seasonal Employment -‐ is a job that is limited to the duration of a particular season. Employment contracts for a fixed period cannot be said to be in circumvention of a security of tenure a. if the fixed period of the employment was knowingly and voluntarily agreed upon by the parties without any force, duress or improper pressure being brought to bear upon the employee and without any other circumstances vitiating consent. 10


b.

If it satisfactorily appears that the employer and the employee dealt with each other or more or less equal terms with no moral dominance whatever being exercised by the former on the latter.

Casual Employment -‐ is a job wherein the activities performed by the employee are not usually necessary or desirable in the usual business or trade of the employer. Casual Employment on a Regular Status -‐ a casual employee who has rendered at least 1 year of service, whether such service is continuous or broken, is considered a regular employee with respect to the activity in which he is employed. -‐ The regular status attaches to the casual employee on the day immediately after end of the first year of service. Probationary Employment -‐ is a situation where the employee upon his engagement is made to undergo a trial period during which the employer determines his fitness to qualify for regular employment, based on reasonable standards made known to him at the time of engagement. Duration of Probationary Employment Generally: Duration of probationary employment is 6 MONTHS. Exceptions: a. When the parties to an employment contract or CBA on a longer period. b. When a longer probationary period is established by company policy. c. When a longer period is required by law. Suspension of Probationary Employment -‐ it can be extended to be give the employee a chance to improve. -‐ It should be done on or before the expiration of the prescribed period otherwise the employee will automatically become a regular employee by operation of law. Termination of Probationary Employment -‐ any of the causes enumerate din Art. 282-284 of the Labor Code. -‐ Failure to qualify or a regular employee in accordance with reasonable standards made known by the employer at the time of his engagement. Limitations on the Right to Terminate a Probationary Employment a. It must be exercised in accordance with the specific requirements of the contract. b. The classification of the employer must be real and in good faith, not feigned so as to circumvent the contract or the law. c. There must be no unlawful discrimination in the dismissal Termination of Employment by the Employer a. Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work. Personal Notes of Joanne Carla Catalla, Compiled by: Kalai Rosal and Shala Sta. Maria

b. c. d.

gross and habitual neglect by the employee of the trust reposed in him by his employer or duly authorized repreesentative. commission of a crime or offense by the employee against the person of his employer or any inmediate member of his family or his duly authorized representative. Other causes analogous to the foregoing.

Misconduct- transgression of same established and definite rule of action, a forbidden act, dereliction of duty, willful in character, and implies a wrongful intent and not a mere error of judgment. Requisites of Willful Disobedience a. The disobedience must be willful or intentional. b. The order must be known to the employee. c. The order must pertain to or must be in connection with the duties which the employee had been engaged to discharge. Gross- glaringly objectionableness.

noticeable

usually

because

of

inexcusable

badness

or

Neglect- indicates a purely objective fact that a person has not done that which it was his duty to do. It does not indicate the reason for his failure. Negligence- indicates a particular reason why the man has failed to do his duty, namely because he has not kept the performance of his duty in his mind As he ought to have done. Fraud- is the knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment. To constitute a just cause for dismissal: a. Fraud must be committed against the employer. b. fraud is in connection with the employees work. Willful Breach Trust - a breach is willful if it is done intentionally, knowingly and purposely without justifiable excuse. To Constitute a Valid Cause for Dismissal - breach of trust must be willful. - related to the performance of the employees' functions. The basic premise for the dismissal on the ground of willful breach of trust is that the employee concerned holds a position of trust and confidence and it is the breach of this trust that results in the employer's loss of confidence in the employee. Guidelines for the Application of the Doctrine 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, or unjustified. c. It may not be arbitrarily asserted in the face of the overwhelming evidence to the contrary. 11


d.

It must be genuine, not a mere afterthought to justify earlier action taken in bad faith.

Commission of a Crime- is a ground for dismissal if it is committed by an employee against the person of the: a. Employer b. immediate family member of the employer c. authorized representative of employer Other Valid Causes for Dismissal a. Violation of company rules and regulations b. breach of union security arrangements c. Participation in an illegal strike d. Commission of illegal acts during a strike e. defiance of a return to work order in a strike Sexual Harassment- committed by an employer, employee, manager, supervisor, agent of the employer who, having authority, influence or moral ascendancy over another, demands, requests, or otherwise requires any sexual favor from another, regardless of whether the demand, request or requirement is accepted. How Committed: a. When a sexual favor is made as a condition for hiring, re-employment or continued employment of an employee. b. when a sexual favor is made as a condition for granting favorable terms, conditions, promotions, compensation or privileges. c. When refusal to grant sexual favor results in limiting, segregating, or classifying the employee which in any way would discriminate, deprive or diminish employment opportunities or otherwise affect adversely said employee. d. When sexual advances impair the employees' rights or privileges under existing labor laws. e. when sexual advances result in an intimidating, hostile or offensive environment for the employee. Sexual harassment in the workplace is not about a man taking advantage of a woman by reason of sexual desire, it is about power being exercised by a superior officer over his woman subordinates. Economic Justifications for Terminating an Employment 1. Installation of a labor-saving devices. 2. Redundancy 3. Retrenchment to prevent losses. 4. Closing or cessation of operation of the establishment Redundancy- exists where the services of an employee are in excess of what is reasonably demanded by the actual requirements of the enterprise. Requisites: a. Good faith in abolishing the redundant position. Personal Notes of Joanne Carla Catalla, Compiled by: Kalai Rosal and Shala Sta. Maria

b. fair and reasonable criteria in ascertaining what positions are to be declared redundant and accordingly abolished. c. Written notice served on both the employees and the DOLE at least 1 month prior to the intended date of termination. d. Payment of separation pay. Retrenchment- reduction of personnel due to actual or anticipated losses, lack of work or reduction in the volume of business. 4 Standards of Retrenchment 1. The expected losses should be substantial and not merely de minimis in extent. 2. The substantial loss apprehended must be reasonably imminent, as such imminence can be perceived objectively and in good faith by the employer. 3. It must be reasonably necessary and likely to effectively prevent the expected losses. 4. The alleged losses directly realized and the expected imminent losses sought to be forestalled must be proved by sufficient and convincing evidence. Requisites for Valid Retrenchment: a. That the retrenchment is reasonably necessary and likely to prevent business losses which, if already incurred, are not merely de minimis but substantial, serious, actual and real or if only expected are reasonably imminent as perceived objectively and in good faith by the employer. b. that the employer exercises its prerogative to retrench employees in good faith for the advancement of its interest and not to defeat or circumvent the employees' right to security of tenure. c. That the employer used fair and reasonable criteria in ascertaining who would be dismissed and who would be retained among the employees such as less preferred status, efficiency, seniority, physical fitness, age and financial hardships for certain workers. d. That the employer served written notice both to the employee and DOLE at least 1month prior to the intended date of retrenchment. e. That the employer pays the retrenched employees separation pay. Requisites for Valid Closure: a. closure of business must be bona fide in character. b. A written notice must be served upon the employees and the DOLE at least 1 month before the intended date of closure. c. The employer must give separation pay to the employees, if the closure was not due to serious business losses. Procedural Requirements: To terminate an employment on the ground of labor saving devices, redundancy, retrenchment or closure of establishment, the employer should serve a written notice at least 1 month in advance to the affected employees and DOLE. Amount of Separation Pay: 1. 1 month pay for every year of service in case of: a. installation of labor-saving devices. b. Redundancy 2. ½ month pay for every year of service in case of: a. retrenchment to prevent losses. 12


b.

Closure of establishment not due to serious business losses.

No separation pay in case of closure of establishment due to serious business losses. Conditions for Terminating Employment due to Illness 1. That the continued employment of the sick employee is prohibited by law or is prejudicial to his health or to the health of his co-empoyees; 2. That there is a certification from a competent public health authority that the disease is of such nature or at such a stage that it cannot be cured within a period of 6 months even with proper medical treatment. Termination of Employment by the Employee 1. Voluntary Resignation -‐ formal renouncement or relinquishment of an office. -‐ It is the voluntary act severing an employment relation at the initiative of the employ. -‐ An employee who finds himself in a situation where he believes that personal reason cannot be sacrificed in favor of the exigency of service that he has no other choice but to dissociate himself from his engagement. -‐ There must be an intention to relinquish a portion of the term of office accompanied by an act of relinquishment. -‐ An employee who intends to voluntarily resign from his employment should give his employer a written notice of at least 1 month in advance. If the employee resigns without observing the required 1 month prior notice, the employer can hold him liable for damages. The employer cannot compel the employee to render service during the period because that would amount to involuntary servitude. Effect of Acceptance of Resignation -‐ once accepted and being the sole act of the employee may not be withdrawn without the consent of the employer. -‐ Employer no longer has any right to the job. -‐ If employee changes his mind, he must ask for approval of the withdrawal of his resignation from his employer as if her were reapplying. -‐ If employer accepts the withdrawal of resignation, the employee retains his job, otherwise, the employee cannot claim illegal dismissal

b. intent to sever relationship. c. Mere absence, therefore, does not by itself induce abandonment of employment, it must be coupled with overt acts pointing to the fact that the employee does not want to work anymore.

Intent to Abandon can be inferred from the following: a. failure of the employee to comply with notices for him to report for work b. failure to report for work within a reasonable time after expiration of leave of absence without pay. c. Failure to report for work despite disapproval of application for indefinite leave of absence. d. Prolonged absences without justifiable refusal. e. As a rule, intent to abandon is negated by the immediate filing of a complaint for illegal dismissal EXCEPT where the complaint does not pray for reinstatement but only for separation pay. Involuntary Resignation -‐ constructive dismissal -‐ a situation where an employee is constrained to quit his job because continued employment is rendered impossible, unreasonable or unlikely. Relief for Constructive Dismissal- separation pay plus in the form of nominal damages or backwages. Just Causes for Termination of Employment by Employee 1. Serious insult by the employer or his representatives on the honor and person of the employee. 2. Inhuman and unbearable treatment accorded the employee by the employer or his representative. 3. Commission of a crime or offense by the employer or his representative against the person of the employee or any of the immediate members of his family. 4. Other causes analogous to the foregoing.

Entitlement to Separation Pay -‐ employee who voluntarily resigns is not entitled to separation pay EXCEPT when it is stipulated in the employment contract, CBA or if sanctioned by established employer practice or policy. Constructive Resignation- abandonment of employment. It is the deliberate and unjustified refusal of an employee to resume his work. Elements of Abandonment a. absence without notice, permission or justifiable cause; Personal Notes of Joanne Carla Catalla, Compiled by: Kalai Rosal and Shala Sta. Maria

13

Labrev Reviewer

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