RIGHT TO COLLECTIVE BARGAININGA. DUTY TO BARGAIN COLLECTIVELY Art. 250. Procedure in collective bargaining. Art. 251.

Duty to bargain collectively in the absence of collective bargaining agreements. Art. 252. Meaning of duty to bargain collectively. Art. 253. Duty to bargain collectively when there exists a collective bargaining agreement. Art. 253-A. Terms of a collective bargaining agreement. Art. 254. Injunction prohibited. Art. 231. Registry of unions and file of collective bargaining agreements. Collective Bargaining Agreement a contract executed upon request of either the employer or the exclusive bargaining representative of the employees incorporating the agreement reached after negotiations with respect to wages, hours of work and all other terms and conditions of employment, including proposals for adjusting any grievance or questions under the agreement Parties to Collective Bargaining1. Employer2. Employees, represented by the exclusive bargaining agent Jurisdictional Requirements1. Status of majority representation of the employees representative. 2. Proof of majority representation3.Demand to bargain under art. 250 (a) The duty of the employer to bargain collectively arises only after the union requests the employer to bargain. If there is no demand, the employer cannot be in default. When there is a legitimate representation issue there is no duty to bargain collectively on the part of the employer Commencement of Bargaining-During Certification Year within 12 months after the determination and certification of the employees exclusive bargaining representative. Bargaining Procedure-The parties may agree on the bargaining procedure. If there is a procedure agreed upon, the Labor Code Procedure applies suppletorily. Bargaining Procedure under the Labor Code (Art. 250) (ANNEX G)Duty to Bargain Collectively When There Is No Collective Bargaining Agreement 1. The performance of a mutual (employer and the exclusive bargaining agent) obligation to meet and convene,2. Promptly and expeditiously in good faith3. for the purpose of negotiating an agreement with respect to wages, hours of work and all other terms and conditions of employment, including proposals for adjusting any grievances or questions arising under such agreement, and4. Executing a contract incorporating such agreements. The duty does not compel any party to agree to a proposal or to make any concession. The CBA remains in full force and effect during the 60 day period and until a new agreement is reached. Duty to Bargain collectively when there is collective Bargaining Agreement When there is a CBA, the duty to bargain also means that neither party shall terminate nor modify such agreement during its lifetime. But 60 days before the CBA expires, either party may notify the other in writing that it wants to terminate or modify the agreement. 4 Forms of 7thULP - Violation of the Duty to Bargain Collectively 1. Failure or refusal to meet and convene2. Evading the mandatory subjects of bargaining3. Bad faith in b argaining4. Gross violation of the CBA Failure or Refusal to Meet and Convene) The union gave the employer copies of its proposed CBA and requested the company to make counterproposals. The company did not reply. The union again wrote the company but this was also ignored .Held: It is unfair labor practice for an employer to refuse to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement for wages, hours of work and other terms of employment. A companys refusal to make counter-proposal if considered in relation to the entire bargaining process, may indicate bad faith and this is especially true where the Unions request for Page 1 of 26

a counter proposal is left unanswered. We agree with the pronouncement that it is not obligatory upon either side of a labor controversy to precipitately accept or agree to the proposals of the other. But an erring party should not be tolerated and allowed with impunity to resort to schemes feigning negotiations by going through empty gestures. Evading the Mandatory Subjects Mandatory Subjects 1. Wages2. Hours of Work3. Other Terms and Conditions of Employment Where the subject of the dispute is a mandatory bargaining subject, either party may bargain to an impasse as long as he bargains in good faith. Where the subject is no mandatory, a party may not insist on bargaining to the point of impasse. His insistence may be construed as evasion of the duty to bargain. Bargaining in Bad Faith-There is no per test of good faith in bargaining. The good faith or bad faith is an inference to be drawn from the facts and is largely a matter for the NLRBs expertise. The charge of bad faith should be raised while the bargaining is in progress. With the execution of the CBA, bad faith can no longer be imputed upon any of the parties thereto. All provisions in the CBA are supposed to have been jointly and voluntarily incorporated therein by the parties. This is not a case where private respondent exhibited an indifferent attitude towards collectivebargaining because the negotiations were not theunilateral activity of petitioner union. The CBA is goodenough that private respondent exerted reasonableeffort of good faith bargaining.It is also evident from the records that the chargeof bargaining in bad faith imputed to the respondentcompanies, is hardly credible. In fact, such charge isvalid as only against the complainant LAKAS. Theparties had a total of 5 conferences for purposes ofcollective bargaining. It is worth considering that thefirst strike of Sept. 4 1967 was staged less than aweek after the 4thCBA conference and without anybenefit of any previous strike notice. In thisconnection, it must be stated that the notice of strikefiled on June 13, 1967 could not have been the strikenotice for the first strike because it was alreadywithdrawn on July 14, 1967. Thus, from these statedfacts can be seen that the first strike was held whilethe parties were in the process of negotiating.The companys refusal to accede to the demandsof LAKAS appears to be justified since there is noshowing that these companies were in the samestate of financial and economic affairs.There is reason to believe that the first strike wasstaged only for the purpose of compelling therespondent companies to accede to the inflexibledemands of the complainant LAKAS. Registration of Collective Bargaining AgreementsWhere to file With the Regional Office which issued thecertificate of registration/certificate of creation ofchartered local. If the certificate of creation of the chartered localwas issued by the bureau, the agreement shallbe filed with the Regional Office which has jurisdiction over the place where it principallyoperates Multi-employer collective bargaining agreementsshall 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 beaccompanied by the original and 2 duplicate copiesof the following documents.1. CBA2. A statement that the CBA was posted in at least2 conspicuous places in the establishmentconcerned for at least 5 days before itsratification.3. Statement that the CBA was ratified by themajority of the employees in the bargaining unit. The following documents must be certified underoath by the representative of the employer andthe labor union. No other document shall be required in theregistration of the CBA. Procedure

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1. The Regional Office or the Bureau shall act onthe applications within 5 days form receipt of theapplication.2. The Regional Office or Bureau may within 5 daysfrom receipt of the application,a. approve the application and issue thecertificate of registration orb. deny the application for failure to comply withthe requirements.c. If the supporting documents are notcomplete, or are not verified under oath, theRegional Office or the Bureau shall notify theapplicants in writing of the requirementsneeded to complete the registration. If the applicant fails to complete therequirements within 10 days fromreceipt of notice, application is deniedwithout prejudice. The denial shall be in writing, stating inclear terms the reason therefore andserved upon the applicant union andemployer within 24 hours from issuance.3. The denial by the Regional Office of theregistration of single enterprise collectivebargaining agreements may be appealed to theBureau while the denial by the Bureau of theregistration of multi-employer collectivebargaining agreements may be appealed to theOffice of the Secretary, both within 10 days fromreceipt of the notice of denial.4. The memorandum of appeal is filed with theRegional Office or the Bureau, as the case maybe.5. The memorandum of appeal and the entirerecords of the application shall be transmitted tothe Bureau or the Office of the Secretary within24 hours from receipt of the memorandum ofappeal.6. Bureau or the Office of the Secretary shallresolve within the same period and in the samemanner as that prescribed for inter/intrauniondisputes. Duration of CBA 1. Representation Aspect: 5 years Refers to the identity and majority status ofthe union that negotiated the CBA as theexclusive bargaining representative.2. All other provisions should be renegotiated notlater than 3 years from effectivity. Refers to the rest of CBA, economic as wellas non-economic other than representational. Hold Over Principle The CBA shall be in full force and effect until theparties reach a new agreement. New Pacific Timber & Supply Company Inc. v.NLRC, 328 SCRA 404 (2000) It is clear from the above provision of law (Art.253) that until a new CBA has been executed by andbetween the parties, they are duty-bound to keep thestatus quo and to continue in full force and effect theterms and conditions of the existing agreement. Thelaw does not provide for any exception norqualification as to which of the economic provisionsof the existing agreement are to retain force andeffect, therefore, it must be understood asencompassing all the terms and conditions in the saidagreement.It is the duty of both parties to continue in fullforce and effect the terms and conditions of theexisting agreement during the 60-day period and/oruntil a new agreement is reached by the parties.To rule otherwise would be to create a gap duringwhich no agement would govern, from the time theold contract expired to the time a new agreementshall have been entered into. Rules on Effectivity and Retroactivity of New CBA(Apply Only to Provisions Other thanRepresentational) I. CBA as a Result of NegotiationsA. With Previous CBA1. Effectivity of new CBA entered into within 6months after the expiration of the old CBA:retroact to the date following the expiry date.2. Effectivity of new CBA entered into after 6months following the expiration of the oldCBA: GR: effective on the date agreed upon bythe parties. If there is no agreement, the arbitralaward will retroact to the day after theend of the 6-month period after the expiryof the old CBA.B. New and First-Ever CBA (No previous CBA) effective on date agreed upon by the partiesII. Arbitral AwardsA. With Previous CBA1. Arbitral award final within 6 months from oldCBA: retroact to the date following the expiryof the old CBA.2. Arbitral award final after 6 months followingthe expiration of the old CBA: General Rule: the agreement between the parties.

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If there is no agreement, retroact to the1stday following the 6-month period.b. New and First-Ever CBA (No previous CBA) -Labor Secretarys discretion will be followed. B. BARGAINING AGENT &CERTIFICATION ELECTION PROCEEDINGS Art. 255. Exclusive bargaining representation and workers participation in policy and decision- making.

Art. 256. Representation issue in organized establishments.Art. 257. Petitions in unorganized establishments.Art. 258. When an employer may file petition.Art. 259. Appeal from certification election orders Bargaining Unit a group of employees sharingmutual interests within a given employer unit,comprised of all or less than all of the entire body ofemployees in the employer unit or any specificoccupational or geographical grouping within suchemployer unit Certification Election/Consent Election-The process of determining through secret ballot the soleand exclusive representative of the employees in anappropriate unit for purposes of collective bargainingor negotiation. A certification election is ordered bythe Department, while a consent election isvoluntarily agreed upon by the parties, with or withoutthe intervention by the Department. Organized Establishment an enterprise wherethere exists a recognized or certified sole andexclusive bargaining agent Run-off Election an election between the laborunions receiving the 2 highest number of votes in acertification or consent election with 3 or morechoices, where such a certified or consent results innone of the 3 or more choices receiving the majorityof the valid votes cast; provided that the total numberof votes for all contending unions is at least 50% ofthe number if votes cast Voluntary Recognition process by which alegitimate labor union is recognized by the employeras the exclusive bargaining representative or agent ina bargaining unit, reported with the Regional Office inaccordance with Rule VII, section 2 of these Rules. 3 Methods to Determine the Bargaining Union 1. Voluntary Recognition2. Certification Election3. Consent Election Voluntary RecognitionWhen to file In unorganized establishments with only onelegitimate labor organization, the employer mayvoluntarily recognize the representation status ofthe union. Within 30 days from such recognition, theemployer and union shall submit a notice ofvoluntary recognition. Where to file-Regional Office which issued the recognizedlabor unions certificate of registration orcertificate of creation of a chartered local. Requirements for Voluntary Recognition The notice of voluntary recognition shall beaccompanied by the original copy and 2 duplicatecopies of the following documents:1. A joint statement under oath of voluntaryrecognition attesting to the fact of voluntaryrecognition.2. Certificate of posting of the joint statement ofvoluntary recognition for 15 consecutive days inat least 2 conspicuous places in theestablishment or bargaining unit where the unionseeks to operate.3. Approximate number of employees in thebargaining unit, accompanied by the names ofthose who support the voluntary recognitioncomprising at least a majority of the members ofthe bargaining unit.4. A statement that the labor union is the onlylegitimate labor organization operating within thebargaining unit. These documents shall be certified under oath bythe employers representative and president of herecognized labor union. Procedure: Voluntary Recognition1. If notice of voluntary recognition is sufficient inform, number and substance, and there is noother registered labor union operating within thebargaining unit, the Regional Page 4 of 26

Office shall recordthe fact of voluntary recognition within 10 daysfrom receipt of notice.2. Where notice of voluntary recognition isinsufficient, the Regional Office shall notify thelabor union of its findings and advise it to complywith the necessary requirements. If the employer or union failed to completethe requirements for voluntary recognitionwithin 30 days from receipt of advisory, theRegional Office shall return. Effects of recording of fact of VoluntaryRecognition 1. The recognized labor union shall enjoy the rights,privileges and obligations of an existingbargaining agent of all the employees in thebargaining unit.2. A petition for certification election cannot be filedfor 1 year from the date of entry of the voluntaryrecognition. Certification Election Who may file 1. Any legitimate labor organization2. Employer, when requested to bargain collectively Where to file-Regional Office which issued the certificate ofregistration/certificate of creation. When to file-Anytime, except:1. When voluntary recognition has beenentered, or a valid certification, consent orrun-off election has been conducted within 1year prior to the filing.2. negotiations in good faith with the employer3. bargaining deadlock had been submitted toconciliation or arbitration or had become thesubject of a valid notice of strike or lockout.4. Registered CBA may file only within 60days prior to the expiration of the CBA. Grounds for Denying Petition-1. the petitioner is not listed in the Departmentsregistry of legitimate labor unions or that its legalpersonality has been revoked or cancelled withfinality in accordance with Rule XIV of theseRulesthe petition was filed before or after the freedomperiod of a duly registered collective bargainingagreement; provided that the sixty-day periodbased on the original collective bargainingagreement shall not be affected by anyamendment, extension or renewal of thecollective bargaining agreement; (Contract Bar)3. the petition was filed within 1 year from entry ofvoluntary recognition or a valid certification,consent or run-off election and no appeal on theresults of the certification, consent or run-offelection is pending; (12-month Bar/Certificationyear bar)4. a duly certified union has commenced andsustained negotiations with the employer inaccordance with Article 250 of the Labor Codewithin the one-year period referred to in Section14.c of this Rule, or there exists a bargainingdeadlock which had been submitted toconciliation or arbitration or had become thesubject of a valid notice of strike or lockout towhich an incumbent or certified bargaining agentis a party; (Negotiation Bar)5. in case of an organized establishment, failure tosubmit the 25% support requirement forthe filingof the petition for certification election. Procedure: Petition for Certification Election(ANNEX H)Procedure: Conduct of Certification Election(ANNEX I)Preliminary Conference The Med-Arbiter shall conduct a preliminaryconference and hearing within 10 days from thereceipt of the petition to determine the following: a. the bargaining unit to be represented ;b. contending labor unions; c. possibility of consent elections; d. existence of any of the bars to certification election; and e. such other matters as may be relevant for the final disposition of the case In case the contending unions agree to a consentelection, the Med-Arbiter shall not issue a formalorder calling for the conduct of certificationelection, but shall enter the fact of the agreementin the minutes of the hearing. Order/Decision on the Petition within 10 daysfrom the date of the last hearing, the Med-Arbitershall issue a formal order granting or denying thepetition. In organized establishments, no order or decisionshall be issued during the freedom period. The order granting the petition shall state thefollowing:a. Name of the employer or establishmentb. Description of the bargaining unitc. Statement that none of the grounds fordismissal existsd. Names of contending labor unionse. Directive upon the

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employer and thecontending union(s) to submit within 10 daysfrom receipt of the order, the certified list ofemployees in the bargaining unit. Prohibited Grounds for Denial of Petition (mustbe heard and resolved by the Regional Director inan independent petition for cancellation ofregistration: 1. validity of petitioning unions certificate ofregistration2. legal personality as a labor organization 3. validity of registration4. execution of CBAs Appeal a. order granting conduct of certification election inunorganized establishments NOT appealableb. all others appealed to the DOLE Sec. within 10days from receipt thereof. Pre-election Conference-Within twenty-four (24) hours from receipt of theassignment for the conduct of a certificationelection, the Election Officer shall cause theissuance of notice of pre-election conferenceupon the contending unions and the employer. Must be scheduled within 10 days from receipt ofthe assignment. Must be completed within 30 days from the lasthearing. Purpose of Pre-election Conference The pre-election conference shall set themechanics for the election and determine thefollowing:1. date, time and place of the election, not be later than forty-five (45) days from thedate of the first pre-election conference on a regular working daywithin the employers premises, unlesscircumstances require otherwise2. list of eligible and challenged voters3. number and location of polling places or boothsand the number of ballots to be prepared withappropriate translations, if necessary name of watchers or representatives and theiralternates for each of the parties during election5. mechanics and guidelines of the election Consent Election-In case the contending unions agree to a consentelection, the Med-Arbiter shall not issue a formalorder calling for the conduct of certificationelection, but shall enter the fact of the agreementin the minutes of the hearing. The minutes of the hearing shall be signed by theparties and attested to by the Med-Arbiter. The Med-Arbiter shall, immediately thereafter,forward the records of the petition to the RegionalDirector or his/her authorized representative forthe determination of the Election Officer by thecontending unions through raffle. The first pre-election conference shall bescheduled within ten (10) days from the date ofentry of agreement to conduct consent election.(See Annex H) Effect of failure to appear during the pre-electionconference considered as a waiver to be present and toquestion or object to any of the agreementsreached in said preelection conference However, the non-appearing party or theemployer still has the right to be furnished noticesof subsequent pre-election conferences and toattend the same Qualification of Voters All employees who are members of theappropriate bargaining unit at the time of theissuance of the order granting the conduct of acertification election shall be eligible to vote. An employee who has been dismissed from workbut has contested the legality of the dismissal ina forum of appropriate jurisdiction at the time ofthe issuance of the order for the conduct of acertification election shall be considered aqualified voter unless his/her dismissal was declared validin a final judgment at the time of the conductof the certification election. Page 6 of 26

Inclusion-Exclusion of Voters In case of disagreement over the voters list orover the eligibility of voters, all contested voters shallbe allowed to vote. But their votes shall besegregated and sealed in individual envelopes. Posting of Notices of Election 1. at least 10 days before the actual date of theelection2. in 2 most conspicuous places in the companypremises Contents of the Notice. the date and time of the election2. names of all contending unions3. the description of the bargaining unit and the listof eligible and challenged voters The posting of the notice of election, theinformation required to be included therein andthe duration of posting cannot be waived by thecontending unions or the employer. Challenging of Votes-An authorized representative of any of thecontending unions and employer-Before it is deposited in the ballot box Grounds:a. that there is no employer-employeerelationship between the voter and thecompany;b. that the voter is not a member of theappropriate bargaining unit whichpetitioner seeks to represent. Procedure in Challenging of Votes 1. The Election Officer shall place the ballot in anenvelope.sealed in the presence of the voter and therepresentatives of the contending unions andemployer. indicate on the envelope the voters name,the union or employer challenging the voter,and the ground for the challenge. envelope shall be signed by the ElectionOfficer and the representatives of thecontending unions and employer.2. The Election Officer shall note all challenges inthe minutes of the election and shall beresponsible for consolidating all envelopescontaining the challenged votes.3. The envelopes shall be opened and thequestion of eligibility shall be passed upon onlyif the number of segregated voters will materiallyalter the results of the election. Protest-Any party-in-interest may file a protest based onthe conduct or mechanics of the election. Protests shall be recorded in the minutes of theelection proceedings. Protests not so raised aredeemed waived The protesting party must formalize its protestwith the Med-Arbiter, with specific grounds arguments and evidence, within five (5) daysafter the close of the election proceedings. If not recorded in the minutes and formalizedwithin the prescribed period, the protest shall bedeemed dropped. Canvassing of Votes-Counted and tabulated by the Election Officer inthe presence of the representatives of thecontending unions. Each representative entitled to a copy of theminutes of the election proceedings and resultsof the election. The ballots and the tally sheets shall bei. sealed in an envelopeii. signed by the Election Officer and therepresentatives of the contending unionsiii. transmitted to the Med-Arbiter, togetherwith the minutes and results of theelection, within 24 hours from thecompletion of the canvass Where the election is conducted in more thanone region, consolidation of results shall be madewithin 15 days from the conduct thereof. Conduct of Election and Canvass of Votes The election precincts shall open and close onthe date and time agreed upon during the pre-election conference. The opening and canvass shall proceedimmediately after the precincts have closed.

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Failure of any party or the employer orhis/her/their representative to appear during theelection proceedings shall be considered awaiver to be present and to question the conductthereof. Certification of Exclusive Bargaining Agent The union which obtained a majority of the validvotes cast shall be certified as the sole and exclusivebargaining agent of all the employees in theappropriate bargaining unit within 5 days from theday of the election, provided no protest is recorded inthe minutes of the election. Failure of Election-Where the number of votes cast in a certificationor consent election is less than the majority of thenumber of eligible voters and there are nomaterial challenged votes. A failure of election shall not bar the filing of amotion for the immediate holding of anothercertification or consent election within 6 monthsfrom date of declaration of failure of election. Action on the motion for the immediate holding ofanother certification or consent election Within 24 hours from receipt of the motion, theElection Officer shall immediately schedule theconduct of another certification or consent electionwithin 15 days from receipt of the motion and causethe posting of the notice of certification election atleast 10 days prior to the scheduled date of electionin 2 most conspicuous places in the establishment.The same guidelines and list of voters shall be usedin the election. Proclamation and Certification of the Result ofthe Election Within twenty-four (24) hours from final canvassof votes There being a valid election.the Election Officer shall transmit the records ofthe case to the Med-Arbiter Med-arbiter shall issue an order proclaiming theresults of the election and certifying the unionwhich obtained a majority of the valid votes castas the sole and exclusive bargaining agent in thesubject bargaining unit, under any of the followingconditions:a. no protest was filed or, even if one was filed,the same was not perfected within the five-day period for perfection of the protest;b. no challenge or eligibility issue was raised or,even if one was raised, the resolution of thesame will not materially change the results ofthe elections. The winning union shall have the rights,privileges and obligations of a duly certifiedcollective bargaining agent from the time thecertification is issued. Run-off Election-When an election which provides for 3 or morechoices results in none of the choices (unions or nounion choice) receiving a majority of the valid votescast, the Election Officer shall motu propio conduct arun-off election within 10 days from the close of theelection proceedings between the labor unionsreceiving the two highest number of votes. Provided,that the total number of votes for all contendingunions is at least 50% of the number of votes cast. And there are no objections or challenges whichif sustained can materially alter the results, No Union shall not be a choice in the run-offelection.

Notice of run-off elections shall be posted by theElection Officer at least five (5) days before theactual date of run-off election. C. BARS TO CERTIFICATION ELECTION Art. 232. Prohibition on certification election Grounds for denying petition for certificationelection 1. Deadlock Bar2. Contract Bar3. 12-month bar/certification year bar4. Negotiation Bar Contract Bar-While a valid and registered CBA is subsisting,the BLR is not allowed to hold an election contestingthe majority status of the incumbent union.

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When contract bar rule not applied1. CBA is not registered2. CBA deregistered3. CBA is incomplete in itself4. CBA does not foster industri al peace5. CBA was concluded in violation of an orderenjoining the parties from entering into a CBAuntil the issue of representation is resolved6. Petition is filed during the 60-day freedom period Deadlock Bar-A petition for certification election cannot beentertained if, before the filing of the petition forcertification election, a bargaining deadlock to whichan incumbent or certified bargaining agent is a party,had been submitted to conciliation or arbitration orhad become the subject of a valid notice of strike orlockout. Negotiation Bar-A petition for certification election cannot be filedif the duly certified union has commenced andsustained negotiations in good faith with theemployer in accordance with Art. 250 of the LaborCode within 1 year prior to the filing of the petition forcertification election. Certification Year Rule Bar-No petition for certification election may be filedwithin one year from the date of a valid certification,consent, or run-off election or from the date ofvoluntary recognition. R. Transport Corp v. Laguesma, GR No. 106830,16 November 1993 The 12 month prohibition presupposes that therewas an actual conduct of election, i.e. ballots werecats and there was a counting of votes. In a casewhere there was no certification election conductedprecisely because the first petition was dismissed onthe ground that it did not include all the employeeswho should be properly included in the collectivebargaining unit, the certification year bar does notapply. Capitol Medical Center Alliance, etc. v.Laguesma, GR No. 118915, 04 February 1997 But in one case the winning union failed toconclude a CBA with the employer within one year,hence another union filed a petition for certificationelection. Although filed outside the 12-month bar, thepetition was nonetheless dismissed, and the courtupheld the dismissal and explained that ordinarily, abargaining agent who failed to secure a CBA within12 months could be suspected as a tool ofmanagement and should deserve to be replaced. Butif circumstances show that the reason for not havingconcluded a CBA was not the unions fault, suchunion should not be blamed, and a certificationelection should not be authorized even though noCBA has been concluded despite passage of 12months. The situation takes the nature of a deadlockbar. Certification year rule will not apply if in fact therewas a failure of election because less thanmajority of the CBU members voted. Anotherpetition for certification election may be filedwithin 6 months. Certification year rule will apply even if the Nounion choice won. ( Samahang Manggagawa sa Permex v. Secretary of Labor, GR No. 107792,02 March 1998) D. ADMINISTRATION IF AGREEMENT; GRIEVANCE AND VOLUNTARY ARBITRATION Art. 260. Grievance machinery and voluntary arbitration. Art. 261. Jurisdiction of Voluntary Arbitrators or panel of Voluntary Arbitrators Art. 262. Jurisdiction over other labor disputes Art. 277. Miscellaneous provisions. (f) A special Voluntary Arbitration Fund is herebyestablished in the Board to subsidize the cost ofvoluntary arbitration in cases involving theinterpretation and implementation of the CollectiveBargaining Agreement, including the Arbitrators fees,and for such other related purposes to promote anddevelop voluntary arbitration. The Board shalladminister the Special Voluntary Arbitration Fund in accordance with the guidelines it may adopt upon therecommendation of the Council, which guidelinesshall be subject to the approval of the Secretary ofLabor and Employment. Continuing funds needed forthis purpose in the initial yearly amount of fifteenmillion pesos (P15,000,000.00) shall be provided inthe 1989 annual general appropriations acts.The amount of subsidy in appropriate cases shallbe determined by the Board in accordance withestablished guidelines issued by it upon therecommendation of the Council.The Fund shall also be utilized for the operationof the Council, the training and education ofVoluntary Arbitrators, and the Voluntary ArbitrationProgram.(g) The Ministry shall help promote and graduallydevelop, with the agreement of labor organizationsand employers, labormanagement cooperationprograms at appropriate levels of the enterprisebased on the shared responsibility Page 9 of 26

and mutualrespect in order to ensure industrial peace andimprovement in productivity, working conditions andthe quality of working life.(h) In establishments where no legitimate labororganization exists, labor-management committeesmay be formed voluntarily by workers and employersfor the purpose of promoting industrial peace. TheDepartment of Labor and Employment shall endeavorto enlighten and educate the workers and employerson their rights and responsibilities through laboreducation with emphasis on the policy thrusts of thisCode. Establishment of Grievance Machinery 1. Agreement by the parties2. Grievance committee shall be created within 10days from the signing of the CBA. Grievance committee shall be composed of atleast 2 representatives each from the membersof the bargaining unit and the employer, unlessotherwise agreed upon by the parties. Representatives of the employers designatedby the union. Disputes under Grievance Machinery 1. interpretation or implementation of the CBA2. interpretation or enforcement of companypersonnel policies Procedure in handling grievances(ANNEX J)Jurisdiction of Voluntary Arbitrators 1. Grievances arising from the implementation orinterpretation of CBAs.2. Arising from interpretation or enforcement ofcompany personnel policies3. Wage distortion issues arising from theapplication of any wage orders in organizedestablishments4. Arising from interpretation and implementation ofthe productivity incentive programs under RA6971 Any other labor disputes upon agreement by theparties. The parties may choose to submit the dispute tovoluntary arbitration proceedings before or atstage of the compulsory arbitration proceedings. Powers of the Voluntary Arbitrators 1. hold hearings2. receive evidence3. take whatever action is necessary to resolve thedispute. The voluntary arbitrator may conciliate or mediateto aid the parties in reaching a voluntarysettlement. Procedure: Voluntary Arbitration All parties to the dispute shall be entitled toattend the arbitration proceedings. Theattendance of any third party or the exclusion ofany witness from the proceedings shall bedetermined by the voluntary arbitrator or panel ofvoluntary arbitrators. Hearing may be adjourned for cause or uponagreement by the parties. It shall be mandatory for the voluntary arbitratorto render an award or decision within 20 calendardays from the date of submission for resolutionunless the parties agree otherwise. Failure on the part of the voluntary arbitratorto render a decision, resolution, order oraward within the prescribed period, shallupon complaint of a party, be sufficientground for the Board to discipline saidvoluntary arbitrator, pursuant to theguidelines issued by the Secretary. In cases that the recommended sanction isde-listing, it shall be unlawful for thevoluntary arbitrator to refuse or fail to turnover to the board, for its further disposition,the records of the case within 10 calendardays from demand thereof. Decision final and executory after 10 calendardays from receipt of the copy by the parties. NoMR allowed The voluntary arbitrator or labor arbitrator (if therevoluntary arbitrator is absence or incapacitated)may issue a writ of execution upon motion of anyinterested party. Voluntary arbitrator shall turn over the records ofthe case to the regional branch of the Boardwithin 10 days upon satisfaction of the finalaward. Page 10 of 26

E. LABOR MANAGEMENTCOOPERATION SCHEMES Creation of Labor Management and OtherCouncils The Department shall promote the formation oflabor-management councils in organized andunorganized councils. Purpose of the Labor-Management Councils To enable the workers to participate in policy anddecision-making processes in the establishment,insofar as said processes will directly affect theirrights, benefits and welfare. Not covered by the Labor-Management Councils 1. Those covered by CBAs2. Traditional areas of bargaining Services to be rendered by the Department in linewith the said policy 1. Conduct awareness campaigns2. Assist the parties in setting up labor-managementstructures, functions and procedures3. Provide process facilitators upon request of theparties4. Monitor the activities of labormanagementstructures as may be necessary and conductstudies on best practices aimed at promotingharmonious labor-management relations. Selection of employees representatives to thecouncil 1. Organized establishments: Nominated by theexclusive bargaining representatives2. Where there is no legitimate labor organization:by the employees at large. IV. STRIKES, LOCKOUTS ANDCONCERTED ACTIONS Art. 263. Strikes, picketing and lockouts Art. 264. Prohibited activities Art. 265. Improved offer balloting. Concerted Action an activity undertaken by two ormore employees, by one on behalf of others Strike any temporary stoppage of work by theconcerted action of the employees as a result of anindustrial or labor dispute Lockout temporary refusal of any employer tofurnish work as a result of an industrial or labordispute Internal union dispute includes all disputes orgrievances arising from any violation of ordisagreement over any provision of the constitutionand by laws of a union, including any violation of therights and conditions of union membership providedfor in this Code Strike-breaker any person who obstructs,impedes, or interferes with by force, violence,coercion, threats, or intimidation any peacefulpicketing affecting wages, hours or conditions of workor in the exercise of the right of self-organization orcollective bargaining Strike Area establishment, warehouses, depots,plants or offices, including the sites or premises usedas runaway shops, of the employer struck against, aswell as the immediate vicinity actually used bypicketing strikers in moving to and fro before allpoints of entrance to and exit from said establishment Characteristics of a Strike 1. There must be an employer-employeerelationship.2. Existence of a dispute.3. Employment relation is deemed to continuealthough in a state of belligerent suspension.4. There is temporary work stoppage.5. Work stoppage is done through concerted action.6. The striking group is a legitimate labororganization. In case of bargaining deadlock, itmust be the employees sole bargainingrepresentative. Grounds for lockout 1. Collective Bargaining Deadlock2. Unfair Labor Practice 3.violations of CBA must be gross to be consideredas ULP Conversion Doctrine-A strike may start as economic and, as itprogresses, becomes ULP, or vice-versa When strike or lockout cannot be declared

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1. Violations of CBA which are not gross.2. Grounds involving inter/intra union disputes3. When there is no notice of strike or lockout orwithout the strike or lockout vote4. After assumption of jurisdiction by the Secretary5. After certification or submission of dispute tocompulsory or voluntary arbitration or during thependency of cases involving the same groundsfor strike or lockout. Who may declare a strike or lockout? 1. Any legitimate labor organization2. Any certified or duly recognized bargainingrepresentative3. Employer If there is certified or duly recognized bargainingrepresentative, any legitimate labor organizationmay declare a strike but only on grounds of unfairlabor practice. Notice of strike or lockout 1. In case of bargaining deadlocks: at least 30 daysbefore the intended date of strike2. In case of unfair labor practice: at least 15 daysbefore the intended date of strike3. In case of ULP involving the dismissal of a unionofficer which may constitute union-busting: unionmay take action immediately after the strike voteand the submission of the results of the strikevote to the regional branch of the Board Contents of the notice of strike or lockout 1. Names and addresses of employer2. Union involved3. Nature of industry to which the employer belong s4. Number of union members5. Workers in the bargaining unit6. Other relevant data7. In case of bargaining deadlocks: the unresolvedissues, written proposals of the union, counter-proposals of the employer and proof of requestfor conference to settle differences8. In case of unfair labor practice: the actscomplained of, and the efforts taken to resolvethe dispute Board shall inform the concerned party in casenotice does not conform with the requirements. Action on notice of strike or lockout Upon receipt of the notice, the regional branch ofthe Board shall exert all efforts at mediation andconciliation to enable the parties to settle thedispute amicably. It shall also encourage theparties to submit the dispute to voluntaryarbitration.

The regional branch of the Board may, uponagreement of the parties, treat a notice as apreventive mediation case. During the proceedings, the parties shall not doany act which may disrupt or impede the earlysettlement of the dispute. They are obliged, aspart of their duty to bargain collectively in goodfaith and to participate fully and promptly in theconciliation meetings called by the regionalbranch of the Board. A notice, upon agreement of the parties, may bereferred to alternative modes of disputeresolution, including voluntary arbitration. Preventive Mediation-The regional branch may treat the notice aspreventive mediation case upon agreement of theparties. Strike or lockout vote 1. approved by majority of total union membershipor by majority of the BOD or partners2. by a secret ballot3. in a meeting called for that purpose The regional branch may supervise the conductof the secret balloting at its own initiative or uponrequest of any party. Notice of the meeting must be given at least 24hours before such meeting, and the results of thevoting must be given at least 7 days before theintended strike or lockout to the regional branchof the Board. This is subject to the cooling-offperiod. Lapanday Workers Union, et. al. v. NLRC, 248 SCRA 96 (1995)

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The result of the strike (or lockout voting) shouldbe reported to the NCMB at least 7 days before theintended strike or lockout, subject to the cooling offperiod. This means that after the strike vote is takenand the result reported to NCMB, seven days mustpass before the union can actually commence thestrike. This seven-day reporting period is intended togive the Dept. of Labor and Employment anopportunity to verify whether the projected strikereally carries the imprimatur of the majority of theunion members. Samahan ng Manggagawa in Moldex Products, et.al. v. NLRC, et.al. GR No. 119467, 01 February 2000 A strike taWhen labor may strike or when the employer maylock out its workers If the dispute remain unsettled after the lapse ofthe requisite number of days from the filing of thenotice of strike or lockout and of the results of theelection.The regional branch of the Board shall continuemediating and conciliating. Prohibited activities during strikes and lockouts 1. strike or lock-out without first having bargainedcollectively strike or lock-out without thenecessary notice being filed with the DOLE2. strike or lock-out without the necessary vote firsthaving been obtained and reported to the DOLE3. strike or lock-out after DOLE has assumed jurisdiction or the President or after certificationor submission of dispute to the compulsoryarbitration/voluntary arbitration or during thependency of cases involving the same groundsfor the strike or lockout4. knowingly participating in illegal strike orknowingly participates in the commission ofillegal acts during a strike ground fortermination of employment5. obstruct, impede, or interfere with by force,violence, coercion, threats, or intimidation anypeaceful picketing by employees during any laborcontroversy or shall abeit or aid such obstructionor interference6. employment or use of any strikebreaker/ employed as a strike breaker7. bringing in, introducing, or escorting by any publicofficer or employee, including officers andpersonnel of the AFP or PNP, or any armedperson in any manner of any individual whoseeks to replace strikers in entering or leavingthe premises of a strike area or work in place ofstrikers8. commit any act of violence, coercion orintimidation while engaged in picketing orobstruct the ingress or egress from theemployer's premises for lawful purposes orobstruct public thoroughfares (must be pervasiveand widespread/consistently and deliberatelyresorted to as a matter of policy) Improved Offer Balloting 1. In case of strike Regional branch of the Board shall, conducta referendum by secret balloting on theimproved offer of the employer.on or before the 30th day of strike.at its own initiative or upon the request of anyaffected party.When at least a majority of the unionmembers vote to accept the improved offer,the striking workers shall immediately returnto work and the employer shall thereuponre-admit them upon the signing of theagreement.2. In case of lockoutThe regional branch of the Board shall alsoconduct a referendum by secret balloting onthe reduced offer of the union.on orbefore the 30thday of the lockout.When at least a majority of the board ofdirectors or trustees or the partners holdingthe controlling interest in the case ofpartnership vote to accept the reduced offer,the workers shall immediately return to workand the employer shall thereupon readmitthem upon the signing of the agreement. Injunction GR:No court or entity shall enjoin any picketing,strike or lockout. Exceptions:1. When prohibited or unlawful acts are being orabout to be committed that will cause grave orirreparable damage to the complaining party.2. National Interest Assumption of Jurisdiction by DOLE Secretary1. Dis In his opinion there exists a labor disputecausing or likely to cause a strike or lockoutin an INDUSTRY INDISPENSABLE TO may certify the same to the commission forCOMPULSORY Effect : AUTOMATICALLY ENJOINS theintended on impending strike or lockout but ifone has already taken place, all striking orlocked out employees SHALLIMMEDIATELY RETURN TO WORK and theemployer shall immediately resumeoperations and re-admit all workers under thesame terms and conditions prevailing beforethe strike or lock-out 2. Mandatory: (within 24 hours)In labor disputes adversely affecting thecontinued operation of HOSPITALS,C May assume jurisdiction or certify it to Page 13 of 26

the Duty of striking union or locking out employerto provide and maintain an effectivegged without the submission of theresult of the strike vote is illegal. SKELETAL WORKFORCE of medical andother health personnel, where movement andservice shall be unhampered andunrestricted as are necessary to insure theproper and adequate protection of the lifeand health of its patients most especiallyemergency cases for the duration of thestrike or lock-out

Power of the President under Art. 263(g) 1. may determine the industries, which are in hisopinion indispensable to national interest2. may intervene at any time and assume jurisdiction over any such labor dispute in orderto settler or terminate the same Decision of the President, DOLE Secretary isfinal and executory after receipt thereof by theparties. The return-to-work order not so much confers aright as it imposes a duty. While as a right it may bewaived, it must be discharged as a duty even againstthe workers will. Returning to work in this situation isnot a matter of option or voluntariness but ofobligation.If the stoppage of work will be unfruitful not onlyto bith the employer and the employees, moreparticularly if the national economy will sufferbecause if the resultant reduction in our exportearnings and our dollar reserves, not to mntionpossible cancellation of the contracts of the companywith foreign exporters, the labor dispute may properlybe certified to the National Labor RelationsCommission, to avoid such a development, with thereturn-to-work order following as a mater of courseunder the law.Where the return to work order is issued pendingthe determination of the legality of the strike, it is notcorrect to say that it may be enforced only if he strikeis legal and may be disregarded if illegal. Precisely,the purpose of the return to work order is to maintainthe status quo while the determination is being made. The discretion to assume jurisdiction may beexercised by the Secretary of Labor andEmployment without the necessity of prior noticeof hearing given to any of the parties disputants Consequences of Illegal StrikeGood-Faith Doctrine A strike may be considered legal when the unionbelieved that the respondent company committedunfair labor acts and the circumstances warrantedsuch belief in good faith although subsequently suchallegation of unfair labor practices are found out asnot true. (Peoples Industrial and Commercial Employees and Workers Organization (FFW) v.Peoples Industrial and Commercial Corp. GR No.37687 15 March 1982) Rule on Wages of Strikers GR:Strikers are not entitled to their wages during the period of a strike, even if the strike is legal. Exceptions:1. In case of a ULP STRIKE, in the discretion of the authority deciding the case.2. Where the strikers voluntarily and unconditionally offered to return to work, but the employer refused to accept the offer [ e.g.of anunconditional offer: we will return tomorrowand NOT willing to return provided] They are entitled to backwages from the datethe offer was made.3. Where there is RETURN-TOWORK ORDER andthe employees are discriminated against. They are entitled to backwages from the dateof discrimination. Rule on Reinstatement of Striking Workers GR: Striking employees are entitled to reinstatement, regardless of whether or not the strike was the consequence of the employers ULP. Exceptions: The following strikers are NOT entitled toreinstatement 1. Union officers who knowingly participate in an illegal strike

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.2. Any striker/union member who knowingly participates in the commission of illegal acts during the strike. The return-to-work order should benefit only those workers who comply with it and, regardless of the outcome of the compulsory arbitration proceedings, are entitled to be paid for the work they have actually performed. Conversely, those workers who refuse to obey said order and instead wage as trike are not entitled to be paid for work not done or to reinstatement to the positions they have abandoned by their refusal to return thereto as ordered. A probationary employee is considered regular after 6 months, becomes regular. May be terminated only for just / authorized causes Test to determine regular employment The primary standard of determining regular employment is the reasonable connection between the particular activity performed by the employee to the usual trade or business of the employer. The testis whether the former is usually necessary or desirable in the usual business or trade of the employer. Also, the performance of a job for at least a year is sufficient evidence of the jobs necessity if not indispensability to the business. This is the rule even if its performance is not continuous and merely intermittent. The employment is considered regular, but only with respect to such activity and while such activity exists. The practice of entering into employment contracts which would prevent the workers from becoming regular should be struck down as contrary to public policy and morals. Casual Employment Activity performed is not usually necessary or desirable in the usual business or trade of the employer, not project and not seasonal Except: if he has rendered at least 1 year of service, whether such service is continuous or broken, he is considered a REGULAR employee with respect to the activity in which he is employed and his employment shall continue while such activity exists. Despite the distinction between regular and casual employment, every employee shall be entitled to the same rights and privileges, and shall be subject to the same duties as may be granted by law to regular employees during the period of their actual employment. Fixed-Term Employment Period is agreed upon knowingly and voluntarily by the parties without force, duress, or improper pressure exerted on the employee. Brent case: Fixed-term employment repealed by LC. But the Civil Code, a general law, allows fixed-term employment Employee hired on a fixed-term is regular if job is necessary and desirable to business of employer. Project Employment-One whose employment has been fixed for specific project or undertaking the completion of which has been determined at the time of engagement of the employee; the period is not the determining factor, so that even if the period is more than 1 year, employee does not necessarily become regular Repeated hiring on a project to project basis is considered necessary and desirable to the business of the employer. Thus, employee is regular. Repeated hiring does not necessarily mean regular employment. Day Certain Rule project employment ends on a certain date does not end on an exact date, but on the completion of the project. Usual and desirable does not matter because employer hires without intent of making them regular. Regularization is not a management prerogative. It is a mandate of law.

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Nature of employment determines regular employment. Art. 280 does not apply to OFWs. (LC does not apply to migrant workers, RA 8042 does.) Poseidon Fishing case: if engaged in deep-sea fishing, locally-hired employees, 280 applies Probationary Employment GR: Not to exceed 6 months Exceptions: a. covered by an apprenticeship agreement stipulating a longer period b. voluntary agreement of parties (especially when nature of work requires a longer period)c. the employer gives the employee a second chance to pass the standards set Termination of Probationary Employment a. just / authorized causes.b. when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to employee at the time of his engagement If allowed to work after the probationary period, he shall be considered a REGULAR employee After lapse of probationary period (6 months), theemployee becomes regular. Probationary employee may be dismissed before end of the probationary period. There is probationary employment where theemployee, 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. The services of an employee who has been engaged on probationary basis may be terminated only for a just cause, when he fails to qualify as a regular employee in accordance with the reasonable standards prescribed by the employer. In all cases of probationary employment, the employer shall make known to the employee the standards under which he will qualify as a regular employee at the time of his engagement. Where no standards are made known to the employee at that time, he shall be deemed a regular employee. Issue: May the employer and the employee validly agree to extend the probationary period beyond six months? Held: YES. Such an extension may be lawfully agreed upon, despite the seeming restrictive language of Article 281. A voluntary agreement extending the original probationary period to give the employee a second chance to pass the probation standards constitutes a lawful exception to the statutory limit. Issue: For private school teachers, what are the legal requirements for acquisition of permanent employment? Held :(1) The teacher is a full-time teacher; (2) the teacher must have rendered three consecutive years of service; and (3) such service must have been satisfactory. Seasonal Employment-Work or services to be performed is seasonal in nature and the employment is for the duration of the season The fact that seasonal workers do not work continuously for one (1) whole year but only for the duration of the season does not detract from considering them in regular employment since in a litany of cases, the Court has already settled that seasonal workers who are called to work from time to time and are temporarily laid off during off-season are not separated from service in said period, but merely considered on leave until re-employed. Workers who have performed the same tasks every season for several years are considered regular employees for their respective tasks. B. SECURITY OF TENUREArt. 279. Security of tenure Applies to all establishment or undertakings whether for profit or not Project employees have no security of tenure.(see how full back wages are computed) Full back wages are computed from the time wages are withheld up to the time the employee is actually reinstated. In the case of project employees, you cannot demand wages for the time when there is no project. Thus, 279 does not apply to project employees. C. JUST CAUSES, AUTHORIZED CAUSES, CONSTRUCTIVE DISMISSAL Page 16 of 26

Art. 282. Just Causes for Termination by employer Grounds: 1. Serious Misconduct or Willful Disobedience by the employee of the lawful orders of his employer or representative in connection with his work (work-related) 2. Gross And habitual Neglect by the employee of his duties 3. Fraud or Willful breach by employee of the Trust reposed in him by his employer or duly authorized representative (not mere suspicion 4. Commission of a Crime or offense by theemployee against the person of his employer or any immediate member of his family or duly authorized representative 5. Other analogous cases Serious Misconduct- Improper or wrong conduct; the transgression of some established and definite rule of action, forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error in judgment. To be serious within the meaning and intendment of the law, the misconduct must be of such grave and aggravated character and not merely trivial or unimportant Elements of Serious Misconduct 1. Serious;2. Relate to the performance of the employeesduties;3. Employee has become unfit to continue working for the employer Elements of Willful Disobedience 1. Employees assailed conduct was willful or intentional, the willfulness being characterized by a wrongful and perverse attitude;2. the order violated must have been reasonable, lawful, made known to the employee and must pertain to the duties which he has been engaged to discharge Gross and Habitual Neglect GROSS and HABITUAL must concur together. Implies a want or absence of or failure to exercise slight care or diligence, or the entire absence of care. It evinces a thoughtless disregard of consequences without exerting any effort to avoid them. Previous infractions by the employee should have been acted upon appropriately by the employer before terminating the former. Fraud or Willful Breach of Trust Can be committed only by confidential and managerial employees confidential employees charged with custody and protection of employers property like a cashier (this is different from the confidential employees in labor relations) A criminal case need not be actually filed. Commission of acts constituting a crime is sufficient. Analogous Cases; Examples violation of safety rules, gross inefficiency, wrongful acts of employee against the company, violation of code of discipline

Article 286 applies only when there is a bona fid suspension of the employers operation of a business or undertaking for a period not exceeding 6 months. In security agency parlance, being placed off detail or on floating status means waiting to be posted. It is the inherent prerogative of an employer to transfer and reassign its employees to meet the requirements of its business. Be that as it may, the prerogative of the management to transfer its employees must be exercised without grave abuse of discretion. The exercise of the prerogative should not defeat an employee's right to security of tenure. The employers privilege to transfer its employees to different workstations cannot be used as a subterfuge to rid itself of an undesirable worker. Art. 284. Disease as ground for termination Disease as Ground for Termination

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When his continued employment is prohibited by law or prejudicial to his health or to the health of his coemployees There is a certification by a competent public health authority that the disease is of such nature or at such stage that it cannot be cured within a period of 6 months even with proper medical treatment The requirement for a medical certificate cannot be dispensed with; otherwise, it would sanction the unilateral and arbitrary determination by the employer of the gravity or extent of the employees illness and thus defeat the public policy on the protection of labor. Art. 285. Termination by employee Termination without Just Cause 1. At least 1 month prior notice2. Employee may be held liable for damages for failure to give notice Termination with Just Cause 1. Grounds a. serious insult on the honor and person of employee by the employer or misrepresentative. b. Inhumane and unbearable treatment accorded to the employee c. commission of a crime against person of theemployee or any of the immediate members of his familyd. Other causes analogous to the foregoing2. Notice not necessary Resigning employee not entitled to separation pay, unless company policy gives it. No Separation Pay in resignation; Exceptions; Waivers and Quitclaims, when valid Generally, separation pay need not be paid to an employee who voluntarily resigns. However, an employer who agrees to expend such benefit as an incident of the resignation should not be allowed to renege in the performance of such commitment. Not all waivers and quitclaims are invalid as against public policy. If the agreement was voluntarily entered into and represented a reasonable settlement, it is binding on the parties and may not later be disowned, simply because of a change of mind. Art. 286. When employment not deemed terminated The bona-fide suspension of the operation of a business or undertaking for a period not exceeding 6 months, or the fulfillment by theemployee of a military or civic duty shall not terminate employment. In all such cases, the employer shall reinstate the employee to his former position without loss of seniority rights if he indicates his desire to resume his work not later than one (1) month from the resumption of operations of his employer or from his relief from the military or civic duty. Temporary Lay-off Must not exceed 6 months. Options of employer (i.e. security agency) in case of pull out by client: 1. Retrenchment must give notice 1 month before retrenchment; pay separation pay2. Closure must comply with 1 month advanced notice; no need to pay separation pay Abandonment-is the deliberate, unjustified refusal of an employee to resume his/her employment Two elements must be proved 1. The intention to abandon2. an overt act from which it may be inferred that theemployee has no more intent to resume his/her work This is negated by immediate filing of an action for ILLEGAL DISMISSAL. Employment Not Deemed Terminated a. bona fide suspension of the operation of a business/undertaking for a period of not more than 6 months .b. Fulfillment by the employee of a military or civic duty Employer shall reinstate the employee to his former position without loss of seniority rights IF employee indicates his desire to resume his work not later than 1 month from resumption of operations of his employer or his relief from the military or civic duty Page 18 of 26

Preventive Suspension-justified where the employees continued employment poses a serious and imminent threat to the life or property of the employer or of his co-workers (there is a REASONABLEPOSSIBILITY of the employee posing such threat) must not exceed 1 month It is only for the purpose of investigating the offense to determine whether he is to be dismissed or not. IT IS NOT A PENALTY. if more than 1 month, the employee must be actually reinstated or reinstated in the payroll Officers liable only if with malice and bad faith Floating Status It is legal, such as in the case of security guards who have no assignment. Such a status should not exceed six-months; if it does, it amounts to a dismissal. D. DUE PROCESS Art. 277. Miscellaneous Provisions (b) Subject to the constitutional right of workers to security of tenure and their right to be protected against dismissal except for a just and authorized cause and without prejudice to the requirement of notice under Article 283 of this Code, the employer shall furnish the worker whose employment is sought to be terminated a written notice containing statement of the causes for termination and shall afford the latter ample opportunity to be heard and to defend himself with the assistance of his representative if he so desires in accordance with company rules and regulations promulgated pursuant to guidelines set by the Department of Labor and Employment. Any decision taken by the employer shall be without prejudice to the right of the worker to contest the validity or legality of his dismissal by filing a complaint with the regional branch of the National Labor Relations Commission. The burden of proving that the termination was for a valid or authorized cause shall rest on the employer. The Secretary of the Department of Labor and Employment may suspend the effects of the termination pending resolution of the dispute in the event of a prima facie finding by the appropriate official of the Department of Labor and Employment before whom such dispute is pending that the termination may cause a serious labor dispute or is in implementation of a mass lay-off. In cases of dismissal, employer has the burden of proof to show that the dismissal falls under the just and authorized causes. Due process refers to the process to be followed; burden of proof refers to the amount of proof to be adduced In money claims ,the burden of proof as to the amount to be paid the employee rests upon the employer since he is in custody of documents that would be able to prove the amount due, such as the payroll. In cases of just and authorized causes, due process must be observed. Due Process Requirements under Art. 277 (b)Just Causes (282)Authorized Causes(283) Twin Notice (Before and After Investigation Notice of the charge Notice that employee is guilty (after investigation) Investigation One notice only Notice to employee1month before installation of LSD, retrenchment, or closure 1 month advanced notice to DOLE Non-compliance with due process requirements Before the was followed. It states that termination due to authorized cause without giving the notice required under the Labor Code is not a violation of due process. It is valid although declared Page 19 of 26

Irregular / ineffectual . He shall however be entitled to SEPARATION PAY ANDBACKWAGES. Dismissal for an authorized or just cause, w/o procedural due process is not an illegal dismissal Agabon not given retroactive effect The principle in law giving retroactive effect where the subsequent law is corrective in character does not necessarily apply to judicial decisions. Unless the SC provides otherwise, the ruling would have no retroactive effect. E. RELIEFS FOR ILLEGAL DISMISSAL 1. Back wages + Reinstatement without loss of seniority rights, or if reinstatement impossible2. Back wages + Separation Pay Where reinstatement is ordered, but the positions already filled up, the dismissed employee must still be reinstated if it is still possible. Cases where reinstatement is impossible 1. Doctrine of Strained Relations (applies to confidential and managerial employees only)2. In case of position has been abolished (applies to both managerial and rank and file) Moral and exemplary damages may also be awarded. Computation of Separation Pay Installation of labor-saving devicesRedundancy1 month pay or 1 month pay for every year of service whichever is higher. 1 month pay for every year is always higher if the employee has served for more than 1year .Retrenchment to prevent losses Closures or cessation of operations of establishments or undertaking NOT due to serious business losses or financial reversesDisease1 month pay or at least1/2 month pay for every year of service whichever is higher Closures or cessation of operations due to serious business losses or financial reverses no separation pay a fraction of at least 6 months is considered 1 year If the retrenchment is later declared illegal, separation pay of 1 month for every year shall be paid. Such computation is because the retrenchment was illegal and the employee was entitled to reinstatement. Reinstatement; payment of back wages An order of reinstatement by the labor arbiter is not the same as actual reinstatement of a dismissed or separated employee. Thus, until the employer continuously fails to actually implement therein statement aspect of the decision of the labor arbiter, their obligation to the illegally dismissed employee, insofar as accrued back wages and other benefits are concerned, continues to accumulate. It is only when the illegally dismissed employee receives the separation pay (in case of strained relations) that it could be claimed with certainty that the EER has formally ceased thereby precluding the possibility of reinstatement. In the meantime, the illegally dismissed employees entitlement to back wages, 13thmonth pay, and other benefits subsists. Until the payment of separation pay is carried out, the employer should not be allowed to remain unpunished for the delay, if not outright refusal, to immediately execute the reinstatement aspect of the labor arbiters decision. Further, the employer cannot refuse to reinstate the illegally dismissed employee by claiming that the latter had already found a job elsewhere. Minimum wage earners are left with no choice after they are illegally dismissed from their employment, but to seek new employment in order to earn a decent living. Surely, we could not fault them for their perseverance in looking for and eventually securing new employment opportunities instead of remaining idle and awaiting the outcome of the case. Reliefs of local workers vs. migrant workers Art. 279, LC(local workers)Sec. 10, RA 8042(migrant workers)

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Reinstatement Full reimbursement of his placement fee with interest of 12% per annum Full back wages from the time his compensation was withheld from him up to the time of his actual reinstatement Salaries for the unexpired portion of his employment contract or for 3 months for every year of the unexpired term, whichever is less* Without valid, just, or authorized cause The option of three months for every year is available only if the employment is for at least one year. If the contract is shorter, the salary to be paid should be that for the unexpired portion. F. RETIREMENT Art. 287. Retirement Exempted: retail, service, agricultural establishments operations employing not more than 10employees Kinds 1. OPTIONAL 60 years old / 5 years in service (includes authorized absences/vacations/regular holidays/mandatory military or civic service). This depends on the stipulations in the CBA, company retirement plan, or employment contract.2. COMPULSARY 65 years old/ regardless or years of service (company not bound to dismiss employee) Benefits 1/2 month salary per year of service which shallinclude:1. 15day basic wage, plus2. 1/12 of the 13thmonth pay, plus3. 5-day Service incentive leave pay plus4. Other benefits as maybe agreed upon by employer and employee (a fraction of at least 6 months considered as 1 year) Minimum benefits to be received =(no. 1 + no. 2 + no. 3) x years of service If CBA / retirement plan has no prohibition, an employee can get pay under the law, CBA, and the retirement plan. If what is provided in the CBA is lower that what is provided for in law, the employee is entitled to the higher amount. VI. DISPUTE SETTLEMENTA. JURISDICTIONS OF THEDIFFERENT AGENCIES Bureau of Labor Relations Original jurisdiction: appeal to DOLE Secretary Appellate jurisdiction: decision shall be immediately executory upon issuance of entry of final judgment; can be reviewed by the CA in petition for certiorari under Rule 65 Jurisdiction 1. Inter-union conflicts2. Intra-union conflicts3. All disputes, grievances or problems arising from or affecting labor-management relations in all workplaces EXCEPT those arising from the implementation or interpretation of the CBA which shall be the subject of grievance procedure and/or voluntary arbitration4. Complaint involving federations, national unions, industry unions, its officers or member organizations Compromise Agreements-If voluntarily agreed upon by the parties with the assistance of the BLR or the regional office of DOLE Final and binding upon the parties The only time NLRC or any courts can assume jurisdiction over issues involved therein: a. in case of noncompliance thereof. b. if there is prima facie evidence that the settlement was obtained through fraud, misrepresentation or coercion Power to Issue Subpoena-When relevant to a labor dispute under its jurisdiction either at the request of any interested party or at its own initiative

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Privileged Communication Information and statements made at conciliation meetings shall NOT be used as evidence in the NLRC Conciliators and similar officials shall not testify in any court or body regarding any matters taken up at conciliation proceeding conducted by them Appeal-within 10 days to the DOLE Secretary Grounds: a. grave abuse of discretion. Gross incompetence Issue:Does the bureau of labor relations have jurisdiction over claims for actual, moral, exemplaryand other forms of damages arising from intra-unionor inter-union disputes?Held:No. Unlike the NLRC which is explicitly vestedwith the jurisdiction over claims for actual, moral,exemplary and other forms of damages, the BLR isnot specifically empowered to adjudicate claims ofsuch nature arising from intraunion or inter-uniondisputes. As long as the agreement is voluntarily entered into and has a reasonable award, it is valid. It must be approved by the LA (NLRC Rules) At the DOLE Secretarys level, the Secretary must approveOn appeal, the NLRC must approve the agreement. An offer to settle is not proof that something is due to the employee. Article 277 of the labor code states that any compromise settlement, including those involving labor standard laws, voluntarily agreed upon by the parties with the assistance of the Bureau or the regional office of the Department of Labor shall be final and binding upon the parties. A, a member of a labor union and a party to a labor dispute executed compromise settlement. He appeared before the Office of the Regional Director to file said compromise settlement together with a motion to dismiss the case. Issue: Is the compromise settlement in compliance with Article 277?Held: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. As such, the compromise settlement executed by A cannot qualify as a valid compromise settlement. Jurisdiction of Labor Arbiters 1. ULP (priority resolved within 30 cal days from submission for decision)2. Termination disputes3. Claims for wages, rates of pay, hours of work and other terms and conditions of employment4. Claims for actual, moral, exemplary and other forms of damages arising from employer-employee relationship cases arising from prohibited activities during strikes, including questions involving the legality of strikes and lockouts6. all other claims arising from employer-employee relationship involving an amount exceedingP5000 regardless of whether accompanied by acclaim for reinstatement except ECC, SSS ,Medicare, & maternity benefits7. Wage distortion cases in unorganized establishments8. All monetary claims of OFWs arising from EER orby virtue of any law or contract involving Filipino workers for overseas deployment, including claims for actual, moral, exemplary and other forms of damages (RA 8042)9. Enforcement of compromise agreements when there is non-compliance by any of the parties pursuant to Art. 227 of the Code (Sec. 1, Rule V,2005 NLRC Rules) Cooperatives-Termination of members of cooperatives is not cognizable by the LA (members are not employees) LA has jurisdiction over illegal dismissal cases involving employees of cooperatives LA does NOT have jurisdiction over-Intra-corporate disputes Cases involving corporate officers (bec. they arenot employees) BUT in Prudential Bank v.Reyes (G.R. No. 141093, 20 February 2001) , it was held that an employee who rose from the ranks is a regular employee and not a mere corporate office Page 22 of 26

Cases involving GOCCs With original charters

Cases involving entities immune from suit (except when the entity performs proprietary functions) Local water districts (since they are quasi-public corporations) Actions based on tort ( Claim of a seaman for damages is under torts, regular court has jurisdiction.) Jurisdiction of the NLRC 1. Original Jurisdictiona. Injunction in ordinary labor disputes to enjoinor restrain any actual or threatened commission of any or all prohibited or unlawful acts or to require the performance of a particular act in any labor dispute which, if not restrained or performed forthwith , may cause grave or irreparable damage to any party b. Injunction in strikes or lockouts under Art.264c. Certified labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, certified to it by the DOLE Secretary for compulsory arbitration2. Exclusive Appellate Jurisdictiona. All cases decided by the LAs, includingcontempt casesb. Cases decided by the DOLE RegionalDirectors or his duly authorized hearingofficers involving recovery of wages, simplemoney claims and other benefits notexceeding Php 5,000 and not accompaniedby a claim for reinstatementOCULAR INSPECTION by Labor Arbiter & NLRC atany time during working hours Jurisdiction of the POEA Cancellation / Suspension of License of Authorityto recruit of Recruitment Agencies (until phaseout within 5 years as provided in RA 8042 Disciplinary Action against OFWs Appeal to Secretary of DOLE within 10 calendardays cancellation/ revocation/ supervision oflicense or authority Appeal to NLRC within 10 calendar days1. violation of overseas employment contracts2. disciplinary cases filed against overseascontract workers Jurisdiction of DOLE Regional Directors 1. visitorial power (Art. 128)2. claims not exceeding Php 5,000 (Art. 129)3. violation of the constitution & by-laws and rights& conditions membership4. inter-union and intra-union disputes involvingindependent unions and chartered locals Jurisdiction of the NCMB conciliation, mediation, and voluntary arbitrationcases (SEE ANNEX L)B. PROCEDURE Art. 221. Technical rules not binding and prior resort to amicable settlement Art. 222. Appearances and Fees The rules of evidence prevailing in courts of lawor equity shall not be controlling.It is the spirit and intention of this Code whichshall be used as reasonable means to ascertainthe facts in each case Without regard to technicalities of law andprocedure all in the interest of due process Parties may be represented by legal counsel butit shall be the duty of the Chairman, any presidingCommissioner or any labor arbiter to exercisecompete control of the proceedings at all stages GR: The only way to acquire jurisdiction is toserve summons Voluntary appearance of the lawyer amounts tovoluntary submission to the jurisdiction of the LA.

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Payment of docket fees is not required in laborstandards claims under Art. 277(d). EXCEPT: incase of bargaining deadlock, the fees are sharedby the parties Failure to implead a substitute party is not a fataldefect. Sec. 3, Rule V of the NLRC Rules allows partiesto submit position papers with attachments andthey can be made basis of the LAs decision. Holding of trial on the merits is discretionary onthe part of the LA. Due process in Art. 277(b) (termination disputes)end line is hearing with representative of ownchoice Due process in Art. 221 opportunity to be heard It is wrong to apply opportunity be heard in dueprocess under Art. 277(b). Verification and Certification of Non-ForumShopping are required BUT Art. 221 can beinvoked. NLRC Rules provide that before deciding, LAmust inform parties that the case has beensubmitted for decision. If this is not complied with,decision is still valid because of Art. 221. Art. 218(c) cannot be invoked to support a faultydecision of the LA. The provision refers to apower of the NLRC and not the LA. C. APPEALS Art. 223. Appeal Art. 224. Execution of decisions, orders or awards Appeal of LAs Decision-Appeal from the decision of the Labor Arbiter isbrought by ordinary appeal to the NLRC within 10calendar days from receipt by the party of thedecision. From the decision of the NLRC, there is noappeal. The only way to elevate the case to the CA is byway of the special civil action of certiorari underRule 65 of the Rules of Civil Procedure. From the ruling of the Court of the Appeals, itmay be elevated to the SC by way of ordinaryappeal under Rule 45 of the Rules of CivilProcedure. Grounds 1. prima facie evidence of abuse of discretion onthe part of LA2. the decision, order or award was secured throughfraud or coercion including graft and corruption3. pure questions of law4. raised serious errors in the findings of facts whichcould cause grave or irreparable damage orinjury to the appellant5. additional Requirement: in case of judgmentinvolving a monetary award-employer (appellant)may perfect the appeal only upon the posting of acash or surety bond issued by a reputablebonding company duly accredited by the NLRC inthe amount equivalent to the monetary award inthe judgment appealed from Requisites for Perfection of Appeal 1. filed within the reglementary period2. Memorandum of Appeal under oath3. appeal fee4. cash, property, or surety bond, if judgmentinvolves monetary award5. proof of service to the adverse party Procedure 1. File Memorandum of Appeal within 10 calendardays, counted from receipt of decision2. Other party can file an Answer within 20 calendardays from receipt of Appeal3. NLRC decides4. NLRC decision becomes final and executory 10days after it is rendered Appeal Involving Monetary Award No monetary award, no appeal bond required If LAs decision does not provide for acomputation of the monetary award, no appealbond is required to be filed. Bond should be posted within the 10-day periodfor filing of appeal Page 24 of 26

If no bond is filed, appeal is not perfected Remedy in case of failure to post bond, remedy isto file a motion to dismiss Motion to Reduce Bon Motion to reduce bond does not toll the runningof the period to perfect appeal In order to effectively stop the running of theperiod within which to perfect the appeal, themotion to reduce bond must comply with therequisites that: 1. filed within the reglementary period2. based on meritorious grounds3. a reasonable amount of bond in relation to themonetary award should be posted together withsaid motion A substantial monetary award, even if it runs intomillions, does not necessarily give the employerappellant a meritorious case and does notautomatically warrant a reduction of the appealbond. Partial payment of the bond is deemedsubstantial compliance with the rules while themotion to reduce bond is still pending with theNLRC. But the partial payment must bemade within the reglementary period. An appellant cannot invoke financial difficulties asa ground in support of a Motion to Reduce Bond.Suffice it to say that the law does not requireoutright payment of the total monetary award, butonly the posting of a bond to ensure that theaward will be eventually paid should the appealfail.

Enforcement-Any law enforcement agency may be deputizedby the DOLE Secretary or the NLRC Issuance of writ of execution on a judgmentwithin 5 years from date it becomes final andexecutory motu proprio or in motion of anyinterested party Reinstatement Pending Appeal If reinstatement is ordered in an illegal dismissalcase, it is immediately executory even pendingappeal Self-executing with no need for a writ ofexecution Either admitted back to work under the sameterms and conditions prevailing prior to hisdismissal or separation or merely reinstated inthe payroll (at the option of the employer, i.e.confidential employee, but the choice must becommunicated to the employee by the employer) Posting of a bond shall not stay the execution ofreinstatement The unjustified refusal of the employer toreinstate an illegally dismissed employee entitlesthe employee to payment of his salaries. If despite several writs of execution, the employerstill refuses to reinstate the employee, theremedy is not the grant of additional backwagesto serve as damages but to file a motion to citethe employer for contempt. LA upheld the validity of the dismissal; NLRCreversed. CA held that dismissal was valid. HELD: The employer is liable to pay for thesalary of the employee previously orderedreinstated by the NLRC although later on, thedismissal of the employee was held not to beillegal. If the former position is already filled up, theemployee ordered reinstated under Article 223should be admitted back to work in asubstantially equivalent position. Appeal of Voluntary Arbitrators Decision Appealable by ordinary appeal under Rule 43 ofthe Rules of Civil Procedure directly to the Courtof Appeals. From the CA, the case may be elevated to theSupreme Court by way of ordinary appeal underthe same Rule 45.

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Appeal of BLRs Decision 1. Denial of application for registration of a union Denial by the Regional Office, appeal to theBLR Denial is originally made by the BLR, appealmay be had to the DOLE Secretary2. Cancellation of registration of a union Cancellation by the Regional Office, appealto the BLR. Cancellation by the BLR in a petition fileddirectly, appeal to DOLE Secretary byordinary appeal3. Decision of the BLR rendered in its original jurisdiction may be appealed to the DOLESecretary whose decision thereon may only beelevated to the CA by way of certiorari underRule 65.4. Decision of the BLR rendered in its appellate jurisdiction may not be appealed to the DOLESecretary but may be elevated directly to the CAby way of certiorari under Rule 65. Appeal of Regional Directors Decision under Art.129 Appeal to NLRC Summary-Decision of the Voluntary Arbiter appeal to CAunder Rule 43-Decision of the DOLE and other attachedagencies (including NLRC) should be brought tothe CA under Rule 65-Decision of the DOLE Secretary certiorari to theCA under Rule 65-Order of the Med-Arbiter in CE in organizedestablishments not appealable under DO 40-03(2003). Thus, the recourse is certiorari underRule 65.-Decisions of the BLR in its appellate certiorariunder Rule 65-certiorari is not a substitute for lost appeal. 10 days to perfect appeal by filing aMemorandum of Appeal-Property bond is now allowed. Appeal bond must be strictly complied with=-NLRC cannot resuscitate a lost appeal. Only 1 MR is allowed. LA cannot entertain an MR or a petition for reliefof judgment After the decision has become final andexecutory, the writ of execution is NOTappealable. To stay writ of execution, ask for an injunctionunder Art. 218(e) Period to appeal cannot be extended BUT in anumber of cases, SC entertained appeals filedout of time under the interest of justice rule (esp.if the appellants are the employees). Doctrine of supervening event (i.e. closure ofcompany) requires payment of separation payand full backwages up to the time of the closureof the company. Reinstatement Pending Appeal (RPA) 1. Decision of the LA2. Independent right3. Payroll reinstatement4. Receipt of LAs decision Even if NLRC reverses LA decision, theemployee is still entitled to the benefit of RPA

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