TITLE V: COVERAGE ART. 243.

. COVERAGE AND EMPLOYEES RIGHT TO SELFORGANIZATION PERSONS/EMPLOYEES ELIGIBLE TO JOIN A LABOR ORGANIZATION FOR PURPOSES OF COLLECTIVE BARGAINING: 1. All persons employed in commercial, industrial and agricultural CIA! enterprises, and 2. In religious, charitable, medical or educational RCME! institutions whether operating for profit or not PERSONS/EMPLOYEES ELIGIBLE TO JOIN A LABOR ORGANIZATION FOR MUTUAL AID AND PROTECTION AIRSI"!: 1. Ambulant, 2. Intermittent, 3. Rural, 4. Self-employed people 5. Itinerant wor ers and !. "or ers without any definite employers PERSONS/EMPLOYEES "HO ARE NOT GRANTED THE RIGHT TO SELF#ORGANIZATION: HEMACEN! 1. High-le"el go"ernment employees #$.%. 1&' (ec. 3) #*A+A,$-IA. ,%/$-+*$+0 $*1.%2$$() 2. Employees of international organi3ations with immunities (ICMC vs. Calleja) 3. Managerial employees whose functions are normally considered as policy-ma ing or managerial whose duties are of a highly confidential or highly technical in nature #212 .4) 4. *embers of the Armed 5orces of the 1hilippines, including police officers, policemen, firemen and 6ail guards #$.%. 1&' (ec. 4)7 5. Confidential employees (Metrolab vs. Confesor) !. Employees of cooperati"es who are members (Benguet Elec. Coop. vs Calleja) 8. Non-$mployees (Rosario Bros. vs Ople) F$%&'()&%* +,-'.-/ 0$%1')( ') 23& P3'-'44')&* 50'23 4&%6'2 7%$6 DOLE8 9,) 7$%6 -,:$% $%(,)';,2'$)*, pro"ided the same right to form, 6oin or assist in the formation of labor unions is also gi"en to 5ilipinos in their country of origin. 0his embodies the 4%')9'4-& $7 %&9'4%$9'2/. MAY SECURITY GUARDS FORM A LABOR ORGANIZATION? YES. 9nder -A !815, they may now freely 6oin a labor organi3ation of the ran -and-file or that of the super"isory union, depending on their ran . #Meralco vs. Secretary of Labor)

EXTENT OF THE RIGHT TO SELF-ORGANIZATION 1. 0o form, 6oin and assist labor organi3ations for the purpose of collecti"e bargaining through representati"es of their own choosing and 2. 0o engage in lawful concerted acti"ities for the same purpose- for their mutual aid and protection.
ART. 244. RIGHTS OF EMPLOYEES IN THE PUBLIC SERVICE

THE FOLLOWING ARE CONSIDERED NEGOTIABLE IN GOCCs WITH ORIGINAL CHARTER:

1. schedule of "acation and other lea"es 2. wor assignment of pregnant women 3. personnel growth and de"elopment 4. communication system : lateral and "ertical 5. pro"ision for protection and safely !. pro"ision for facilities for handicapped personnel 8. pro"ision for first-aid medical ser"ices for married women &. annual medical;physical e<amination =. recreational, social, athletic and cultural acti"ities and facilities #-ules implementing >% 1&')

THE FOLLO"ING ARE CONSIDERED NOT NEGOTIABLE:

1. 0hose which re?uire appropriation of funds, such as@ a. increase in salary emoluments and other allowance not presently pro"ided for by law b. facilities re?uiring capital outlays c. car plan d. pro"ident fund e. special hospitali3ation, medical and dental ser"ices

f. g. h.

rice;sugar;other subsidies tra"el e<penses increase in retirement benefits

2. 0hose that in"ol"e the e<ercise of management prerogati"es, such as@ a. appointments b. promotion c. assignments;details d. reclassification;upgrading of position e. re"ision of compensation structure f. penalties imposed as a result of disciplinary actions g. selection of personnel to attend seminar, trainings, study grants h. distribution of wor load i. e<ternal communication lin ages ,o"ernment employees and employees of go"ernment-owned and controlled corporations with original charters may bargain, howe"er, such :,%(,')')( 4$0&% '* -'6'2&..

NOTE: 0he 1ublic (ector .abor *anagement 4ouncil #1(.*4), created by $.%. 1&' has 6urisdiction to hear charges of 9.1 filed by go"ernment employees against their employer. REASONS "HY EMPLOYEES IN GOCC* INCORPORATED UNDER THE CORPORATION CODE ARE ALLO"ED TO ORGANIZE: 1. they are not in"ol"ed in public ser"ice 2. terms of employment are not fi<ed by law 3. they are go"erned by the pro"isions of the .abor 4ode not by the 4i"il (er"ice .aw

ART. 245. INELIGIBILITY OF MANAGERIAL EMPLOYEES TO ORGANIZATION! RIGHT OF SUPER"ISORY EMPLOYEES.

OIN ANY LABOR

MANAGERIAL EMPLOYEE # one who is "ested with powers or prerogati"es to lay down and e<ecute management policies and ;or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees. M,),(&%',- E64-$/&&* <).&% L,:$% S2,).,%.* a. PO"ERS/DUTIES primary duty consists of the 6,),(&6&)2 $7 23& &*2,:-'*36&)2 in which they are employed or of a department or subdi"ision b. E=TENT - includes the officers and members of the managerial staff c. PURPOSE OF DEFINITION - to determine w;n certain employees are co"ered by Coo III of the .4 on 4onditions of $mployment. M,),(&%',- E64-$/&&* <).&% L,:$% R&-,2'$)* - (ee definition abo"e

- does not include the managerial staff since they are classified as super"isory employees Awho may;may not be eligible to 6oin a labor union with the ran and file employeesB - to determine an employeeDs 6oining;forming a labor union. eligibility in

R#$s%& '%( )&#*)+),)*)-. )n t e collective bargaining process! "anagerial e"ployees are t e alter ego of t e e"ployers an# t us t ey are suppose# to be on t e si#e of t e e"ployer to act as its representatives! an# to see to it t at its interests are $ell protecte#. % e e"ployer is not assure# of suc protection if t ese e"ployees are union "e"bers. In t e sa"e "anner! t e labor union "ig t not be assure# of t eir loyalty to t e union in vie$ of t e evi#ent conflict of interest. % e union can also beco"e co"pany&#o"inate# $it t e presence of "anagerial e"ployees in 'nion Me"bers ip (Bulletin (ublis ing Co. Inc. vs. )on. *ugusto Sanc e+).
SUPERVISORY EMPLOYEES # those who, in the interest of the employer, effecti"ely recommend such managerial actions if the e<ercise of such authority is )$2 6&%&-/ %$<2'),%/ $% 9-&%'9,- ') ),2<%& :<2 %&><'%&* 23& <*& $7 ').&4&).&)2 ?<.(6&)2 . MAY SUPER"ISORY EMPLOYEES FORM/ ASSIST/ OIN A LABOR ORGANIZATION? YES, on their own and +%0 with the ran -and-file employees #-A !815).

0he TEST IS@ Eo they e<ercise independent 6udgment which is not sub6ect to e"aluation of other department heads;other superiorsF If in the affirmati"e, then they may-must form a labor organi3ation of their own Aseparate from the ran and file employeesB If their responsibilities do not inherently re?uire the e<ercise of discretion and independent 6udgment Aor merely routinary;clerical in natureB then they may 6oin the union composed of the ran and file employees.

NOTE@ It is the nature of the employeeDs functions and not the nomenclature or title gi"en to his 6ob which determines whether he has a ran and file or managerial status. #$ngineering $?uipment, Inc. "s. +.-4) MAY THEY AFFILIATE WITH A FEDERATION OF LABOR ORGANZATIONS OF RAN0 AND FILE EMPLOYEES? YES. 1ro"ided that@ a. the federation is )$2 ,92'+&-/ ')+$-+&. in union affairs in the company7 and b. the %,)1 ,). 7'-& &64-$/&&* ,%& )$2 .'%&92-/ <).&% 23& 9$)2%$- of the super"isors #Adamson "s. Adamson) EFFECT OF HAVING MI=ED MEMBERSHIP : A union whose membership is a mi<ture of the super"isors and the ran and file is not and cannot become a legitimate labor organi3ation. It cannot petition for a certification election, much less as to be recogni3ed as the bargaining representati"e of employees. CONFIDENTIAL EMPLOYEES - by the "ery nature of their functions, they ,**'*2 ,). ,92 ') , 9$)7'.&)2',- 9,4,9'2/ 2$@ $%@ 3,+& ,99&** 2$ 9$)7'.&)2',- 6,22&%* $7 4&%*$)* 03$ &A&%9'*& 6,),(&%',- 7<)92'$)* ') 23& 7'&-. $7 -,:$% %&-,2'$)*. 0herefore, the rationale behind the ineligibility of managerial employees to form, assist or 6oin a labor union e?ually applies to them. #1hilips Industrial Ee"Dt Inc. /s. +.-4) - they are entrusted with confidence on delicate matters, or with the custody, handling, or care and protection of the employerDs property. 9nder the #octrine of necessary i"plication, confidential employees are similarly dis?ualified under Article 245. #-epublic 1lanters Can "s. 0orres) NOTE: 0he phrase Gin the field of labor relationsH is important. It stresses labor ne<us, i.e., confidentiality of the position is related or lin ed to labor relations matters. Access to information which is regarded by the employer to be confidential from the business standpoint, such as financial information or technical trade secrets, will not render an employee a confidential employee. #(*4 (uper"isors I $<empt 9nion "s. Jon. .aguesma, et al.) 4onfidentiality is not a matter of official ran , it is a matter of 6ob content and authority. It is not measured by closeness to or distance from top management, but by the significance of the 6obholderDs role in the pursuit of corporate ob6ecti"es and strategies. $"ery managerial position is confidential because one does not become a manager without ha"ing gained the confidence of the appointing authority. Cut not e"ery confidential employee is managerial7 he may be a super"isory or e"en a ran -and-file employee. ART. 24B. NON#ABRIDGEMENT OF THE RIGHT TO SELF#ORGANIZATION CTHE RIGHT TO SELF#ORGANIZATION SHALL NOT BE ABRIDGEDD MEANS: It shall be unlawful for any person to@ a. b. c. d. restrain, coerce, discriminate against, or unduly interfere

- with employees and wor ers in their e<ercise of the right to self-organi3ation. Any act intended to wea en or defeat the right is regarded by law as an offense, which is technically called Gunfair labor practice.H

TITLE VI: UNFAIR LABOR PRACTICES CHAPTER I: CONCEPT ART. 24E. UNFAIR LABOR PRACTICES NATURE OF UNFAIR LABOR PRACTICES: 1. VIOLATE THE CONSTITUTIONAL RIGHT of wor ers and employees to self-organi3ation7 2. are INIMICAL TO THE LEGITIMATE INTERESTS of both labor and management, including their right to bargain collecti"ely and otherwise deal with each other in an atmosphere of freedom and mutual respect 3. DISRUPT INDUSTRIAL PEACE7 and ,. in#er t e pro"otion of ealt y an# stable labor&"anage"ent relations an# "utual respect 1LABOR-MNGT RELATIONS-UNSTABLE2 2 ELEMENTS OF UNFAIR LABOR PRACTICE: 1. employer-employee relationship between the offender and the offended 2. act done is e<pressly defined in the 4ode as an act of unfair labor practice 3. it is now considered a criminal offense triable by the criminal court NOTE: 1rohibited acts are all related to the wor ersK self-organi3ational right and the the obser"ance of a 4CA, e<cept Art. 24& #f) dismissing or pre6udicing an employee for gi"ing testimony under the 4ode. 9.1 has a technical meaning. It is a practice unfair to labor, although the offender may either be an employer or a labor organi3ation It refers to acts opposed to wor ersK right to organi3e. >ithout this, the act, no matter how unfair, is not 9.1. It commonly connotes anti&unionis". It also refers to gross "iolation of 4CA pro"isions. ,ross means the act is malicious and flagrant. 2 ASPECTS OF UNFAIR LABOR PRACTICE: CI"IL CASE CRIMI.*L C*SE A. PERSONS LIABLE 1. %fficers and agents 1. Agents and officers who 3$(-)4)3$-#5 or $6-7%()8#5 $% ($-)')#5 of employer or 23& act. 2. .abor organi3ation, 2. Agents, representati"es, members of the go"ernment board, officers and agents including ordinary members B. JURISDICTION -.abor Arbiters of the -*04;-04 as the case may be. +.-4 C. FUANTUM OF PROOF NEEDED #substantial e"idence -beyond reasonable doubt Asub6ect to prosecution and punishmentB D. PRESCRIPTIVE PERIOD - one year from the - one year from the accrual of the 9.1 act, howe"er it will be accrual of the 9.1 act. suspended once the administrati"e case has been filed and would only continue running once the administrati"e case has attained finality. 5inal 6udgment in the administrati"e proceeding finding that 9.1 has been committed is a prere?uisite in filing a criminal case for 9.1 NOTE@ 5inal 6udgment in the administrati"e proceedings shall not be binding in the criminal case nor shall be considered as an e"idence of guilt but merely as a proof of compliance of the re?uirements prescribed by the 4ode.

CHAPTER II: UNFAIR LABOR PRACTICES OF EMPLOYERS ART 24G. ULP THAT MAY BE COMMITTED BY AN EMPLOYER H#HI! H. T$ INTERFERE "ITH@ RESTRAIN OR COERCE EMPLOYEES - in the e<ercise of their right to self-organi3ation7 INTERFERENCE $<amples@ - outright and unconcealed intimidation - interrogation employer must communicate to the employee the purpose of ?uestioning 1. assure him that no reprisal would ta e place 2. obtain employee participation "oluntarily 3. must be free from employer hostility to union organi3ation 4. must not be coerci"e in nature -intimidating e<pressions of opinion by employer TEST OF INTERFERENCE OR COERCION - whether the employer has engaged in conduct which it may reasonably be said tends to interfere with the free e<ercise of the employeesK right and it is not necessary that there be direct e"idence that any employee was in fact intimidated or coerced by the statements of threats or the employer if there is a reasonable interference that the anti-union conduct of the employer does ha"e an ad"erse effect of self-organi3ation and collecti"e bargaining. 2. TO REFUIRE AS A CONDITION FOR EMPLOYMENT THAT A PERSON OR AN EMPLOYEE - shall not 6oin a labor organi3ation or - shall withdraw from one to which he belongs7 YELLO" DOG CONTRACT - A promise e<acted from wor ers as a condition of employment that they are not to belong to, or attempt to foster, a union during their period of employment. It is null and "oid because@ - It is 9$)2%,%/ 2$ 4<:-'9 4$-'9/ for it is tantamount to in"oluntary ser"itude. - It is entered into 0'23$<2 9$)*'.&%,2'$) for employees in wai"ing their right to selforgani3ation - $mployees are 9$&%9&. 2$ *'() 9$)2%,92* .'*,.+,)2,(&$<* to their family. D%#s A(-. 249 :;< =#$& -7$- $& #=3*%.#( 4$&&%- 4%&-($4- %6- >%(?? .O. C$)2%,92')( $<2 *&%+'9&* '* )$2 ULP 4&% *&. I2 '* ULP $)-/ 03&) 23& 7$--$0')( 9$).'2'$)* &A'*2: 1. 2. the ser"ice contracted- out are being 4&%7$%6&. :/ <)'$) 6&6:&%*7 and such contracting-out ')2&%7&%&* 0'23, restrains, or coerce employees in the e<ercise of their right to self-organi3ation.

HO"EVER, when the contracting-out is being done to minimi3e e<penses, then it is a "alid e<ercise of management prerogati"e. 3. T$ CONTRACT OUT SERVICES OR FUNCTIONS BEING PERFORMED BY UNION MEMBERS - when such will interfere with, restrain or coerce employees in the - e<ercise of their right to self-organi3ation7 4. T$ INITIATE@ DOMINATE@ ASSIST OR OTHER"ISE INTERFERE - with the formation or administration of any labor organi3ation, - including the gi"ing of financial or other support to it or its organi3ers or officers7 #5ormation of 4ompany 9nion) J. T$ DISCRIMINATE IN REGARD TO "AGES, hours of wor , and other terms and conditions of employment in order to encourage or discourage membership in any labor organi3ation. TEST OF DISCRIMINATION# whene"er benefits or pri"ileges gi"en to one is not gi"en to the other under similar or identical conditions when directed to encourage or discourage union membership #see more discussions below)

B. T$ DISMISS@ DISCHARGE OR OTHER"ISE PREJUDICE OR DISCRIMINATE against an employee - for ha"ing gi"en or being about to gi"e testimony under this 4ode7 #0he only 9.1 act which is not anti-unionism) DISCRIMINATION BECAUSE OF TESTIMONY TEST: the sub6ect matter of the testimony can be anything under the 4ode what is 9.1 is the employerKs retaliatory act regardless of the sub6ect of employeeKs complaint or testimony E. TO VIOLATE THE DUTY TO CODEK G. BARGAIN COLLECTIVELY AS PRESCRIBED BY THIS

TO PAY NEGOTIATION OR ATTORNEYS FEES TO THE UNION OR ITS OFFICERS OR AGENTS - as part of the settlement of any issue in collecti"e bargaining or any other disputes7 or T$ VIOLATE A COLLECTIVE BARGAINING AGREEMENT.#,-%((.2L) # the "iolation must be gross and with respect to the economic pro"ision of the 4CA #flagrant and with malice) All the aforementioned acts #+os. 1-=) must ha"e a relation to the employeesD e<ercise of their to self-organi3ation. Anti-union or anti-organi3ation moti"e must be pro"ed because it is a definitional element of 9.1.

L.

RUNAWAY SHOP & an in#ustrial plant "ove# by its o$ners fro" one location to anot er to escape union labor regulations or state la$s or to #iscri"inate against e"ployees at t e ol# plant because of t eir union activities.
COMPANY UNIONISM 1. Initiation of the company union idea by@

a. outright formation by employer or his representati"es b. employee formation on outright demand or influence by employer c. managerially moti"ated formation by employees

2. financial support to the union by@

a. employer defrays union e<penses b. pays attorneyKs fees to the attorney who drafted the 4onstitution or by laws of the union

3. employer encouragement and assistance by immediate granting of e<clusi"e recognition as bargaining agent without determining whether the union represents ma6ority of the employees 4. super"isory assistance by soliciting membership, permitting union acti"ities during wor time or coercing employees to 6oin the union by threats of dismissal or demotion. DISCRIMINATION FOR OR AGAINST UNION MEMBERSHIP TEST OF DISCRIMINATION: 0hat the discharge of an employee was moti"ated by his union acti"ity. (uch inference must be based on e"idence, direct or circumstantial, not upon mere suspicion. CONSTRUCTIVE DISCHARGE # 9.1 where employer prohibits employees from e<ercising their rights under the 4ode, on pain of discharge, and the employee ?uits as a result of the prohibition THREE COMPONENTS OF ART. 24G J! DISCRIMINATION!: 1. It 4%$3':'2* .'*9%'6'),2'$) in terms and conditions of employment in order to encourage or discourage membership in the union7 2. It ('+&* +,-'.'2/ 2$ <)'$) *&9<%'2/ ,(%&&6&)2*7 3. It ,--$0* ,) ,(&)9/ *3$4 ,%%,)(&6&)2 whereby agency fees may be collected from non-union members. SECURITY ARRANGEMENTS # stipulations in the 4CA re?uiring membership in the contracting union as a condition for employment or retention of employment in the company. PRINCIPLES OF UNION SECURITY ARRANGEMENTS: 1. P%$2&92'$) # 0o shield union members from whimsical and abusi"e e<ercise of management prerogati"es. 2. B&)&7'2* # An additional membership will insure additional source of income to the union in the form of union dues and special assessment.

3. S&-7#4%&*&%+,2'$)# It strengthens the union through selecti"e acceptance of new members on the basis of commitment and loyalty. DIFFERENT MINDS OF UNION SECURITY ARRANGEMENTS: E=CEPTIONS TO ULP ON INTERFERENCE ON THE EMPLOYEES E=ERCISE OF THEIR RIGHT TO SELF# ORGANIZATION! 1. CLOSED#SHOP AGREEMENT # the employer underta es not to employ any indi"idual who is not a member of the contracting union and the said indi"idual once employed must, for the duration of the agreement, remain a member of the union in good standing as a condition for continued employment. - does not ha"e any retroacti"ity - apply only to new hires E=CEPTIONS: a. employees belonging to any religious sect which prohibit affiliation of their members with any labor organi3ation are not co"ered by such agreementM0he free e<ercise of religious belief is superior to contract rights #/ictoriano "s. $li3alde -ope >or ers). b. members of the ri"al union are not co"ered by such arrangement. SEMI#CLOSED SHOP AGREEMENT# 3,* )$ %&><'%&6&)2 7$% 23& &64-$/&& 2$ %&6,') ,* 6&6:&% $7 23& 9$)2%,92')( <)'$) ') ($$. *2,).')( ,* , 9$).'2'$) 7$% 9$)2')<&. &64-$/6&)2. 2. UNION SHOP AGREEMENT -stipulation whereby any person can be employed by the employer but once employed such employee must, within a specific period, become a member of the contracting union and remain as such in good standing for continued employment for the duration of the 4CA Ata e note of the e<ceptions in the preceding number.B 3. MAINTENANCE OF MEMBERSHIP CLAUSE - the agreement E%$( +%0 re?uire nonmembers to 6oin the contracting union C90 pro"ides that those who are members thereof at the time of the e<ecution of the 4CA and those who may thereafter on their own "olition become members must for the duration of the agreement maintain their membership in good standing as a condition for continued employment in the company for the duration of the 4CA. 4. PREFERENTIAL SHOP AGREEMENT an agreement whereby the employer merely agrees to gi"e preference to the members of the bargaining union in hiring, promotion or filing "acancies and retention in case of lay-off. 0he employer has the right to hire from the open mar et if union members are not a"ailable. 5. AGENCY SHOP AGREEMENT - an agreement whereby employees must either 6oin the union or pay to the union as e<clusi"e bargaining agent a sum e?ual to that paid by the members. 0his is .'%&92&. ,(,')*2 CFREE RIDERD &64-$/&&* who benefit from union acti"ities without contributing support to the union, to pre"ent a situation of non-union members enriching themsel"es at the e<pense of union members. $mployee members of another;ri"al union are not considered free riders since when the union AagentB bids to be the bargaining agent, it "oluntarily assumed the responsibility of representing all the employees in the appropriate bargaining unit.

RE@UIREMENTS FOR A "ALID TERMINATION BY THE EMPLOYER OF THE SER"ICES OF AN EMPLOYEE PURSUANT TO A UNION OR CLOSED-SHOP AGREEMENT:
1. 0he agreement must be e<pressed in a CLEAR AND UNEFUIVOCAL way so as not to lea"e room for interpretation because it is a limitation to the e<ercise of the right to selforgani3ation. Any doubt must be resol"ed against the e<istence of a closed-shop agreement. 2. 0he agreement can only ha"e PROSPECTIVE APPLICATION and cannot be applied retroacti"ely. 3. It can only be e<ercised by gi"ing the employee his right to DUE PROCESS. - 0he employer has the right to satisfy himself that there are sufficient bases for the re?uest of the union. - 0he termination of the ser"ices of the employee is not automatic upon the re?uest of the union.

4. It cannot be applied to employees who are already MEMBERS OF THE RIVAL UNION or to the employees based on their religious beliefs. CHAPTER III: UNFAIR LABOR PRACTICES OF LABOR ORGANIZATIONS

ART. 24A. UNFAIR LABOR PRACTICES OF LABOR ORGANIZATIONS

a. %o RESTRAIN OR COERCE e"ployees in t e e/ercise of t eir rig t to self&organi+ation. )o$ever! a labor organi+ation s all ave t e rig t to prescribe its o$n rules $it respect to t e ac0uisition or retention of "e"bers ipb. %o CAUSE OR ATTEMPT TO CAUSE AN EMPLOYER TO DISCRIMINATE AGAINST AN EMPLOYEE! inclu#ing #iscri"ination c. 0o VIOLATE THE DULY OR REFUSE TO BARGAIN COLLECTIVELY with the employer pro"ided that it is the representati"e of the employees7 d. TO CAUSE OR ATTEMPT TO CAUSE AN EMPLOYER TO PAY OR DELIVER OR AGREE TO PAY OR DELIVER ANY MONEY or other things of "alue, in the nature of an e<action, for ser"ices which are not performed or not to be performed, including the demand for a fee for union negotiations7 #0his is called 5$A0J$-C$EEI+,) e. 0o ASM FOR OR ACCEPT NEGOTIATION OR ATTORNEYS FEES FROM EMPLOYERS as part of the settlement of any issue in collecti"e bargaining or any other dispute7 or f. 0o GROSSLY VIOLATE A COLLECTIVE BARGAINING AGREEMENT. - 0he "iolation must be gross and must be with respect to economic pro"isions of the 4CA flagrantly and with malice. PERSONS CIVILLY LIABLE FOR ULP: 1. %fficers and agents of employer 2. .abor organi3ation, officers and agents 3. Agents and officers who participated or authori3ed or ratified the act. FEATHERBEDDING - refers to the practice of the union or its agents in causing or attempting to cause an employer to pay or deli"er or agree to pay or deli"er money or other things of "alue, in the nature of e<action, for ser"ices which are not performed or not to be performed, as when a union demands that the employer maintain personnel in e<cess of the latterDs re?uirements. It is not featherbedding if the wor is performed no matter how unnecessary or useless it may be. S"EETHEART DOCTRINE : considers it 9.1 for a labor organi3ation to as for or accept negotiation or attorneyDs fees from the employer in settling a bargaining issue or dispute resulting 4CA is considered a Gsweetheart contractH : a 4CA that does not substantially impro"e the employeesD wages and benefits. TITLE VII: COLLECTIVE BARGAINING AND ADMINISTRATION OF AGREEMENTS

ART. 2JI. PROCEDURE IN COLLECTIVE BARGAINING COLLECTIVE BARGAINING negotiation by an organi3ation or group of wor men, in behalf of its members, with the employer, concerning wages, hours of wor and other terms and conditions of employment and the settlement of disputes by negotiation between an employer and the representati"e of his employees. +egotiation towards a collecti"e agreement.
0he mechanics of collecti"e bargaining is set in JURISDICTIONAL PRECONDITIONS are present@ motion only when the following

1. POSSESSION OF THE STATUS OF MAJORITY representation by the employeesD representati"e in accordance with any of the means of selection or designation pro"ided for by the .abor 4ode7 2. proof of MAJORITY REPRESENTATION #4ertification of the C.- that the representati"e of the employees in the sole and e<clusi"e bargaining agent ha"ing won in a certification election)7 and 3. a DEMAND TO BARGAIN under Article 25' #a) of the .abor 4ode. #Nio .oy "s. +.-4)

 COLLECTIVE BARGAINING AGREEMENT CBA! - a negotiated contract between a legitimate labor organi3ation and the employer concerning@ a. wages, b. hours of wor , and c. all other terms and conditions of employment in a bargaining unit, including mandatory pro"isions for grie"ances and arbitration machineries. PROCEDURE IN COLLECTIVE BARGAINING 1. >ritten NOTICE with statement of proposals 2. REPLY by the other party within 1' calendar days with counter proposals 3. In case of differences, either party may REFUEST FOR A CONFERENCE which must be held within 1' days from receipt of re?uest. 4. If not settled NCMB MAY INTERVENE AND ENCOURAGE the parties to submit the dispute to a "oluntary arbitrator 5. If not resol"ed, the parties may go to where they want AND RESORT TO ANY OTHER LA"FUL MEANS Aeither to settle the dispute or submit it to a "oluntary arbitratorB. Euring the conciliation proceeding in the Coard, the parties are prohibited from doing any act which may disrupt or impede the early settlement of the disputes #25'AdB .4). G STAGES IN THE NEGOTIATION FOR A COLLECTIVE BARGAINING AGREEMENT: 1. PRELIMINARY process - written notice for negotiation which must be clear and une?ui"ocal 2. NEGOTIATION 1rocess 3. E=ECUTION 1rocess : signing of the agreement 4. PUBLICATION for at least 5 days before ratification 5. RATIFICATION by the ma6ority of all the wor ers in the bargaining unit represented in the negotiation #not necessary in case of arbitral award) !. REGISTRATION 1rocess -e?uisites for registration@ a. mandatory pro"isions b. payment of 11, ''' c. 5 copies of 4CA d. proof of ratification 8. ADMINISTRATION 1rocess : the 4CA shall be 6ointly administered by the management and the bargaining agent for a period of 5 years &. INTERPRETATION AND APPLICATION 1rocess MANDATORY PROVISIONS OF THE CBA: 1. wages 2. hours of wor 3. grie"ance machinery 4. "oluntary arbitration 5. family planning !. rates of pay 8. mutual obser"ance clause In addition, the Cureau re?uires that the 4CA should include a clear statement of the terms of the 4CA.

.ote1 $mployerDs duty to bargain is limited to mandatory bargaining sub6ects7 as to other matters, he is free to bargain or not to bargain. ART. 2J2. MEANING OF DUTY TO BARGAIN COLLECTIVELY

DUTY TO BARGAIN COLLECTIVELY - the performance of a mutual obligation@ a. to MEET AND CONVENE promptly and e<peditiously in good faith for the purpose of negotiating an agreement with respect to wages, hours of wor and all other terms and conditions of employment including proposals for ad6usting any grie"ances or ?uestions arising under such agreement and

b. E=ECUTING A CONTRACT incorporating such agreements if re?uested by either party. LIMITATIONS: 1. the duty to bargain collecti"ely does not compel any party to@ a. ,(%&& 2$ , 4%$4$*,-7 or b. 6,1& , 9$)9&**'$). +o room for G0a e it or .ea"e itH posture.

2. the parties cannot stipulate ter"s an# "ini"u" re0uire"ents prescribe# by la$

con#itions of e"ploy"ent $ ic

are belo$ t e

#*eaning of duty to bargain when there e<ists a 4CA, see discussion under Art. 253) 4ollecti"e bargaining does not end with the e<ecution of the agreement. It is a continuous process. 0he duty to bargain imposes on the parties during the term of their agreement the mutual obligation to meet and confer promptly and e<peditiously and in good faith for the purpose of ad6usting any grie"ances or ?uestion arising under such agreement. #-epublic (a"ings Can "s. 4A)

FOUR :4< FORMS OF ULP IN BARGAINING: a. failure or refusal to "eet an# convene b. eva#ing t e "an#atory subjects of bargaining c. ba# fait in bargaining 2boul$aris"3! inclu#ing failure or re0ueste# #. gross violation of t e CB*

refusal to e/ecute t e CB*! if

D% #4%&%=)4 #B)+#&4)#s C6s-)'. (#'6s$* -% ,$(+$)&? An employer has been held not guilty of refusal to bargain by adamantly re6ecting the unionKs economic demands where he is operating at a loss, on a low profit margin, or in a depressed industry, as long as he continues to negotiate. Cut financial hardship constitutes no e<cuse for refusing to bargain collecti"ely. ACTS NOT DEEMED REFUSAL TO BARGAIN: 1. adoption of an adamant bargaining position in good faith 2. refusal to bargain o"er demands for commission of 9.1 3. refusal to bargain during period of illegal stri e 4. there is no re?uest for bargaining 5. union see s recognition for an inappropriately large unit !. union see s to represent some persons who are e<cluded from the 4ode 8. the ran -and-file unit includes super"isors or inappropriate otherwise &. the demand for recognition and bargaining is made within the year following a certification election in which the clear choice was no union and no ad interim significant change has ta en place in the unit =. the union ma es unlawful bargaining demands BARGAINING TO THE POINT OF DEADLOCM OR IMPASSE: 1. o"er a 6,).,2$%/ *<:?&92 - party may insist on bargaining and will not be construed as bargaining in bad faith REASON: duty to bargain re?uires meeting and con"ening on the terms and conditions of employment but does not re?uire assent to the other partyKs proposals. 2. o"er a )$)#6,).,2$%/ *<:?&92 - party may not insist on bargaining to the point of impasse, otherwise, he will be construed as bargaining in bad faith.
E=AMPLE: 0he employerKs insistence that the union should change its negotiator before bargaining can proceed to the employeesK wage and benefits is an instance of bad-faith bargaining because the composition of the negotiating panel is not a mandatory sub6ect of bargaining. Jence, if 1arty A insists on first settling a non-mandatory sub6ect before tac ling a mandatory sub6ect, 1arty C may complain that 1arty AKs posture is 6ust an e<cuse to a"oid bargaining on the mandatory, essential sub6ects of bargaining7 thus, 1arty C can charge that 1arty A is bargaining in bad faith or is e"ading bargaining on terms and conditions of employment - in short, 1arty A is committing 9.1.

NOTE: >hat the rule forbids is the posture of ma ing settlement of a non-mandatory sub6ect a pre-condition to the discussion or settlement of a mandatory sub6ect. ART. 2J3. DUTY TO BARGAIN COLLECTIVELY "HEN THERE E=ISTS A COLLECTIVE BARGAINING AGREEMENT GENERAL RULE: >hen there is an e<isting 4CA, the duty to bargain collecti"ely shall also mean that neither party shall 0$-*I+A0$ nor *%EI52 such agreement during its lifetime. It is the duty of both parties to@ a. eep the *2,2<* ><$ and b. to 9$)2')<& ') 23& 7<-- 7$%9& ,). &77&92 the terms and conditions of the e<isting 4CA

 E=CEPTION@ during the !'-day period prior to its e<piration, upon ser"ice of a written notice of a partyDs intention to terminate or modify the same, a party may choose to terminate or modify the non-representational aspect of the 4CA only after the e<piration of 4CA of fi<ed duration. D<2/ 2$ :,%(,') 9$--&92'+&-/ <).&% 2J3 ,). 2J3#A/2JB
2J3 A.FREEDOM PERIOD -the notice of intention to terminate, amend or alter the pro"isions of the 4CA shall be filed within the si<ty #!') day period, immediately prior to the e<piration of the 4CA. -the economic pro"isions howe"er may be renegotiated not later than three #3) years. 0hose economic pro"isions entered within ! months from the e<piry of their term as fi<ed in the 4CA shall retroact to the day immediately following such date, if beyond ! months the effecti"ity is by agreement of the parties. C. >JA0 *A2 C$ 4JA+,$E E9-I+, 0J$ !'-EA2 5-$$E%* 1$-I%E -re-negotiable pro"isions of the 4CA particularly the non-representation aspect #$4%+%*I4 1-%/I(I%+( may be renegotiated not later than three #3) years. 2J3#A/2JB - representation aspect of the 4CA shall be for a term of fi"e #5). A petition for certification election may be entertained and a certification election may be conducted within the !'-day period immediately prior to the e<piration of the 4CA.

- representation aspectMit may be resol"ed by holding certification election

AUTOMATIC RENE"AL CLAUSE : Art. 253 pro"ides that the 4CA shall remain effecti"e and enforceable &+&) after the e<piration of the period fi<ed by the parties ,* -$)( ,* no new agreement is reached by them.

"HAT MAY BE DONE DURING THE BI#DAY FREEDOM PERIOD: a. A labor union may DISAFFILIATE from the mother union to form a local or independent union only during the !'-day freedom period immediately preceding the e<piration of the 4CA. Ata e note of the limitation-see discussions on registration of labor unionsB b. either party can ser"e a written notice to TERMINATE OR MODIFY the agreement at least !' days prior to its e<piration period Aon re-negotiable;non-representation aspect of the 4CAM see discussion on 253B c. $ 3#-)-)%& '%( CER%I4IC*%IO. ELEC%IO. =$. ,# ')*#5

ART. 25;DA. TERMS OF A COLLECTI"E BARGAINING AGREEMENT :CONTRACT BAR RULE<

DURATION OF THE CBA: 1. >ith respect to the representation aspect, the same lasts for 5 years 2. >ith respect to other pro"isions Aeconomic pro"isionsB, the same may last for a ma<imum period of 3 years after the e<ecution of the 4CA RULE ON RETROACTIVE EFFECTS OF OTHER ECONOMIC PROVISIONS "ITH FI=ED TERM OR DATES OF E=PIRY AS PROVIDED IN THE CBA: a. T3$*& 6,.& 0'23') B 6$)23* after the date of e<piry of the 4CA - Any agreement on such other pro"isions of the 4CA 6,.& 0'23') B 6$)23* after the date of e<piry of the 4CA is sub6ect to AUTOMATIC RETROACTION to the day immediately following such date of e<piry. b. T3$*& )$2 6,.& 0'23') B 6$)23* 23& 4,%2'&* 6,/ ,(%&& 2$ 23& DATE OF RETROACTION. - 0his rule applies only if there is an $OI(0I+, A,-$$*$+0. If THERE IS NO E=ISTING AGREEMENT, there is no retroacti"e effect because the date agreed upon shall be the start of the period of agreement. NOTE: Article 253-A on retroaction does not apply if the pro"isions were imposed by the (ecretary of .abor by "irtue of arbitration. It applies only if the agreement was "oluntarily made by the parties. ART. 2J4. NO INJUNCTION RULE +o temporary or permanent in6unction or restraining order in any case ')+$-+')( $% (%$0')( $<2 $7 -,:$% .'*4<2&* shall be issued by any court or other entity, &A9&42 as otherwise

pro"ided in Articles 21& #1owers of the 4ommission;+.-4) and 2!4 #1rohibited Acti"ities) of this 4ode. REASON: in6unction contradicts the constitutional preference for "oluntary modes of dispute settlement I& 4$s#s %' s-()?#sE3)4?#-)&+/ third parties or innocent bystanders =$. s#46(# $ 4%6(:(#+6*$( 4%6(-< )&C6&4-)%& -% 3(%-#4- -7#)( ()+7-s. ((*4L' vs. CLORIBEL) AND WOR0ERFS

ART. 255. EXCLUSI"E BARGAINING REPRESENTATION PARTICIPATION IN POLICY AND DECISION-MA0ING

WHAT IS THE MEANING OR EXTENT OF THE WOR0ERSF RIGHT TO PARTICIPATE IN POLICY AND DECISION-MA0ING PROCESSES? (uch right refers %+.2 to participation in grie"ance procedures and "oluntary modes of settling disputes and +%0 to formulation of corporate programs and policies. NOTE: An employer may solicit ?uestions, suggestions and complaints from employees e"enthough the employees are represented by a union, pro"ided@ 1. the collecti"e bargaining representati"e e<ecutes an agreement wai"ing the right to be present on any occasion when employee grie"ances are being ad6usted by the employer and 2. employer acts strictly within the terms of this wai"er agreement. ONE#UNION@ ONE#COMPANY POLICY - the proliferation of unions in an employer unit is discouraged as a matter of policy unless there are compelling reasons which would deny a certain class of employees the right to self-organi3ation for purposes of collecti"e bargaining. E=CEPTION: - super"isory employees who are allowed to form their own unions apart from the ran -and-file employees - the policy should yield to the right of employees to form unions for purposes not contrary to law, self-organi3ation and to enter into collecti"e bargaining negotiations. two companies cannot be treated into a single bargaining unit e"en if their businesses are related. subsidiaries or corporations formed out of former di"isions of a mother company following a reorgani3ation may constitute a separate bargaining unit. LABOR MANAGEMENT COUNCILS - deal with the employer on matters affecting employeeDs rights, benefits and welfare. 0hey may be formed e"en if there is already a union in the company. ARTS. 2JB#2JL PETITION FOR CERTIFICATION ELECTION BARGAINING UNIT- a group of employees of a gi"en employer, comprised of all or less than all the entire body of the employees, which, consistent with e?uity to the employer, indicate to be best suited to ser"e the reciprocal rights and duties of the parties under the collecti"e bargaining pro"ision of the law. CERTIFICATION YEAR - refers to the period wherein collecti"e bargaining should begin, which is within 12 months following the determination and certification of employeesK e<clusi"e bargaining representati"e. FOUR FACTORS IN DETERMINING THE APPROPRIATE BARGAINING UNIT: 1. the E=PRESS "ILL OR DESIRE of the employees #,lobe Eoctrine)7 the desires of all the employees are rele"ant to the determination of the appropriate bargaining unit. 0he rele"ance of the wishes of the employees concerning their inclusion or e<clusion from a proposed bargaining unit is inherent in the basic right to self organi3ation 2. the SUBSTANTIAL AND MUTUALITY INTEREST factor7 3. prior collecti"e bargaining HISTORY7 and 4. EMPLOYMENT STATUS, such as a. temporary b. seasonal, and

c. probationary employee THINGS TO CONSIDER IN DETERMINING THE COMMUNITY OF INTEREST DOCTRINE: 1. similarity in the scale and manner of determining earnings 2. similarity in employment benefits, hours of wor and other terms and conditions of employment 3. similarity in the inds of wor performed 4. similarity in the ?ualifications, s ills and training of the employees 5. fre?uency of contract or interchange among the employees !. common super"ision and determination of labor-relations policy 8. history of pre"ious collecti"e bargaining &. desires of the affected employees =. e<tent of union organi3ation MODES OF CHOOSING THE E=CLUSIVE BARGAINING UNIT: 1. SELECTION - certification election 2. DESIGNATION - "oluntary recognition A. CERTIFICATION ELECTION the process of determining by secret ballot the sole and e<clusi"e bargaining agent of the employees in an appropriate bargaining unit, for purposes of collecti"e bargaining CERTIFICATION +*. CONSENT ELECTION CERTIFICATION ELECTION CONSENT ELECTION A. NATURE - separate and distinct from a - a separate and distinct process and has nothing to do consent election with the import and effect of a certification election C. PURPOSE - to determine the sole and - to determine the issue of ma6ority representation of all e<clusi"e bargaining agent of all the wor ers in the appropriate collecti"e bargaining unit the employees in an appropriate mainly for the purpose of determining the administrator of bargaining unit for the purpose of the 4CA when the contracting union suffered massi"e collecti"e bargaining7 disaffiliation but not for the purpose of determining the bargaining agent for purposes of collecti"e bargaining. DIRECT CERTIFICATION # the process whereby the *ed-Arbiter directly certifies a labor organi3ation of an appropriate bargaining unit of a company after a showing that such petition is supported by at least a ma6ority of the employees in the bargaining unit. IT IS NO LONGER ALLO"ED. EO HHH! VOLUNTARY RECOGNITION : the process whereby the employer recogni3es a labor organi3ation as the e<clusi"e bargaining representati"e of the employees in the appropriate bargaining unit after a showing that the labor organi3ation is supported by at least a ma6ority of the employees in the bargaining unit. EFFECT OF VOLUNTARY RECOGNITION BY THE EMPLOYER - through "oluntary recognition by the employer, the labor organi3ation is recogni3ed by the employer as the e<clusi"e bargaining agent which may collecti"ely bargain with such employer. C.E. IN AN ORGANIZED AND AN UNORGANIZED ESTABLISHMENT
ORGANIZED A. "HEN MANDATORY ON THE PART OF BLR - upon the filing of a "erified petition by a legitimate labor organi3ation ?uestioning the ma6ority status of the incumbent bargaining agent within the !'-day freedom period before the e<piration of a 4CA. - 0he 4&2'2'$) 6<*2 :& *<44$%2&. :/ 23& 0%'22&) 9$)*&)2 of at least 25P of ALL THE EMPLOYEES IN THE APPROPRIATE BARGAINING UNIT. # 23& &64-$/&% 9,))$2 7'-& , 4&2'2'$) 7$% 9&%2'7'9,2'$) &-&92'$)K $)-/ , -&('2'6,2& -,:$% $%(,)';,2'$) 9,) 7'-& *<93 4&2'2'$). C. PERIOD FOR FILING THE PETITION a. when 23&%& '* , CBA, the labor organi3ation can file a petition for certification election within the !'-day freedom UNORGANIZED 9pon@ a. the filing of a "erified petition by a legiti"ate labor organi+ation7 $% b. upon the filing of a petition by t e e"ployer $ en suc e"ployer is re0ueste# by t e e"ployees to bargain collectively.

- any time, sub6ect howe"er to the %+$$.$40I%+-1$--2$A- -9.$.

period #4%+0-A40-CA- -9.$) b. when 23&%& '* )$ CBA, then the labor organi3ation can file a petition for certification election at any time, sub6ect to the Eeadloc Car -ule.

REFUISITES BEFORE A LABOR UNION CAN BE DECLARED A "INNER :DOUBLE MA ORITY RULE<: 1. *a6ority of the eligible "oters cast their "otes AND 2. *a6ority of the "alid "otes cast is for such union. HO" TO DETERMINE THE DOUBLE MAJORITY RULE: 1. In determining the eligible "otes cast A5I-(0 *AQ%-I02B, include spoiled ballots 2. In determining "alid "otes A($4%+E *AQ%-I02B, eliminate spoiled ballots but include challenged "otes RUN#OFF ELECTION: A run-off election is proper if the following conditions e<ist namely@ a. a VALID ELECTION too place because ma6ority of the 4ollecti"e Cargaining 9nit members "oted A5I-(0 *AQ%-I02B7 b. the said election presented at least THREE CHOICES, e.g., 9nion %ne, 9nion 0wo, and +o 9nion #0a e +ote@ G+o 9nion shall not be a choice in the run : off election)7 c. NOT ONE OF THE CHOICES OBTAINED THE MAJORITY #5'PR1-($4%+E *AQ%-I02) of the "alid "otes cast7 d. the TOTAL VOTES FOR THE UNIONS IS AT LEAST JIN of the "otes cast7 e. there is NO UNRESOLVED CHALLENGED VOTES or election protest which if sustained can materially alter the results f. the two choices which garnered the highest "otes will be "oted and the one which garners the highest number of "otes will be declared the winner pro"ided they get the ma6ority "otes of the total "otes cast W7% >)** 3$(-)4)3$-# )& -7# (6& D %''? 0he unions recei"ing the highest and second highest number of "otes cast. R& R<) E-&92'$) +*. R<) $77 E-&92'$) RE RUN ELECTION RUN OFF ELECTION Jeld in two instances@ 4onducted when none of the choices, including the choice of +o 9nion, recei"es a ma6ority of 1. if one choice recei"es a plurality of the "alid "ote cast. 0his presupposes no less "ote and the remaining choices results than three competing choices. In this situation, in a tie7 an election is conducted between the union 2. if all choices recei"ed the same choices recei"ing the largest and the second number of "otes7 largest number of the "alid "otes cast. In both instances, the +% 9+I%+ is also a choice RULES "HICH PREVENT THE HOLDING OF A CERTIFICATION ELECTION 5DONC8: H. Deadloc bar rule- when there is a deadloc in collecti"e bargaining and the same has been submitted to +4*C for conciliation and mediation the same bars any petition or conduct of certification election. 2. One year bar rule 3. Negotiation bar rule 4. Contract bar rule H. CONTRACT#BAR RULE - while a "alid and registered 4CA of a fi<ed duration is subsisting, the C.- is not allowed to hold an election contesting the ma6ority status of the incumbent union during the fi"e year term of the 4CA e<cept during the si<ty day period immediately prior to the e<piration of the 4CA. REFUIREMENTS IN ORDER TO INVOME CONTRACT#BAR RULE:

1. 2. 3. 4. 5. !. 8.

Agreement is in "RITING AND SIGNED by all contracting parties. It must contain THE TERMS AND CONDITIONS of employment. 4o"ered employees in an appropriate bargaining unit 5ABU EES COVERED8. It is for a REASONABLE PERIOD or duration. It must be RATIFIED. It must be REGISTERED with the Cureau. 0he "iolation of the contract bar rule or the e<istence of a duly registered 4CA must be specifically IMPLEADED AS A DEFENSE.

EFFECT OF AN INVALID AND UNREGISTERED CBA# there is no bar and therefore a certification election may be held. NOTE: -egistration of 4CA only puts into effect the contract bar rule but the 4CA itself is "alid and binding e"en if unregistered. E=CEPTIONS TO THE CONTRACT#BAR RULE: 1. 2. 3. 4. 5. !. 4CA is not registered 4CA deregistered 4CA was hastily concluded way ahead of the freedom period 4CA is incomplete in itself 4CA does not foster industrial peace because of schism 4CA was concluded in "iolation of an order en6oining the parties from entering into a 4CA until the issue of representation is resol"ed 8. 1etition is filed during the !'-day freedom period SUCCESSOR#IN#INTEREST DOCTRINE >hen an employer with an e<isting 4CA is succeeded by another employer, the successor-in-interest who is a buyer in goo# fait has no liability to the employees in continuing employment and the collecti"e bargaining agreement because these contracts are in persona" E=CEPT@ a. when the successor-in-interest &A4%&**-/ ,**<6&* the obligation or b. the sale is a .&+'9& 2$ 9'%9<6+&)2 the obligation or c. the sale or transfer is made in :,. 7,'23 SUBSTITUTIONARY DOCTRINE where there occurs a shift in the employeesD union allegiance after the e<ecution of a collecti"e bargaining contract with the employer, the employees can change their agent #the labor union) but the collecti"e bargaining contract which is still subsisting continues to bind the employees up to its e<piration date. 0hey may, howe"er, bargain for the shortening of said e<piration date. 0he employees cannot re"o e the "alidly e<ecuted collecti"e bargaining contract with their employer by the simple e<pedient of changing their bargaining agent. 0he new agent must respect the contract. #Cenguet 4onsolidated, Inc. "s. $mployees and >or ers 9nion-1A5.9)

LIMITATION AS TO ITS APPLICATION : it cannot be in"o ed to support the contention that a newly certified collecti"e bargaining agent automatically assumes all the personal underta ings of the former agentMli e the Gno stri e clauseH in the 4CA e<ecuted by the latter #Cenguet 4onsolidated Inc. "s. C4I $mployees and >or ers 9nion-1A5.9). 2. DEADLOCM BAR RULE - a petition for certification election cannot be entertained if, before the filing of the petition for certification election, a bargaining deadloc to which an incumbent or certified bargaining agent is a party, had been submitted to conciliation or arbitration or had become the sub6ect of a "alid notice of stri e or loc out. DEADLOCM : arises when there is an impasse, which presupposes reasonable effort at good faith bargaining which, despite noble intentions, did not conclude in an agreement between the parties. INDICATIONS OF A GENUINE DEADLOCM: 1. the submission of the deadloc to a third party conciliator or arbitrator 2. the deadloc is the sub6ect of a "alid notice of stri e or loc out

3. NEGOTIATION BAR RULE - a petition for certification election cannot be entertained if, before the filing of the petition for certification election, the duly recogni3ed or certified union has commenced negotiations with the employer in accordance with Art. 25' of the .abor 4ode. 4. CERTIFICATION YEAR RULE : no petition for certification election may be filed within one year from the date of a "alid certification, consent, or run-off election or from the date of "oluntary recognition E=AMPLES OF BAD FAITH BARGAINING: 1. S<%7,9& B,%(,')')( : occurs when employer constantly changes its positions o"er the agreement. 2. B$<-0,%'*6 : occurs@ a. when the employer directly bargains with the employee disregarding the union. 0he aim was to deal with the 9nion through the employees, rather than with the employees through the union. b. $mployer submits its proposals and adopts a ta e it or lea"e it stand. 0his is not negotiation because the ta e it or lea"e it stand implies threat. 3. S'.& B,% T&93)'><&

TITLE VII# A ,* ')9$%4$%,2&. :/ RA BEHJ! GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION ART. 2BI. GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION GRIEVANCE MACHINERY - a mechanism for the ad6ustment of contro"ersies or disputes arising from the interpretation or implementation of the 4CA and the interpretation or enforcement of company personnel policies GRIEVANCE # arises when a dispute or contro"ersy arises o"er the implementation or interpretation of a 4CA or from the implementation or enforcement of company personnel policies, and either the union or the employer in"o es the grie"ance machinery pro"ision for the ad6ustment or resolution of such dispute or contro"ersy. NATURE OF GRIEVANCE PROCEDURE - It is a GmustH pro"ision in any 4CA and no collecti"e agreement can be registered in the absence of such procedure. It is a part of the continuous process of collecti"e bargaining intended to promote a friendly dialogue between labor and management as a means of maintaining industrial peace. VOLUNTARY ARBITRATION - contractual proceedings where parties to a dispute select a 6udge of their own choice and by consent submit their contro"ersy to him for determination. *ll grievances not settle# $it in 5 #ays fro" t e #ate of its sub"ission to t e grievance "ac inery s all automatically be referre# voluntary arbitration prescribe# in t e CB*. *lt oug t e provision "entions 6parties to a collecti"e bargaining agreement,H it #oes not "ean t at a grievance "ac inery cannot be set up in a CB*&less enterprise. In any $or7 place $ ere grievance can arise! a grievance "ac inery (regar#less of na"e) can be establis e#. In a unioni+e# co"pany! *rt. 899 allo$s an e"ployee! union "e"ber or not! to raise a grievance #irectly to t e e"ployer.

 ARBITRATION MAY BE INITIATED BY: H. 2. SUBMISSION AGREEMENT : where the parties define the disputes to be resol"ed7 or DEMAND OR NOTICE in"o ing a collecti"e agreement arbitration clause.

ART 2GH. URISDICTION OF "OLUNTARY ARBITRATORS OR PANEL OF "OLUNTARY ARBITRATORS

JURISDICTION OF VOLUNTARY ARBITRATORS: H. E=CLUSIVE ORIGINAL JURISDICTION CONFERRED BY LA" a) All grie"ances arising from the interpretation or implementation of the 4CA. b) 0hose arising from the interpretation or enforcement of company personnel polices. c) Jear and decide wage distortion issues arising from the application of any wage orders in organi3ed establishments. d) 9nresol"ed grie"ances arising from the interpretation and implementation of the producti"ity incenti"e programs under -A !'81 . It is the labor arbiter and not the grie"ance machinery which has 6urisdiction o"er dismissals pursuant to the union security clause. "iolations of 4CA, e<cept those which are gross in character, shall no longer be treated as 9.1 and shall be resol"ed as grie"ances.

GROSS VIOLATION : flagrant and;or malicious refusal to comply with the economic pro"isions of the 4CA. 2. JURISDICTION BY AGREEMENT OF THE PARTIES #Art. 2!2) -all other disputes including 9.1 and bargaining deadloc s 0he disputes the parties may submit to a /oluntary Arbitrator can include any or all the disputes mentioned in Art. 218 which otherwise fall under the e<clusi"e 6urisdiction of a labor arbiter. /oluntary arbitration may be "iewed as a master procedure to pre"ent or resol"e labor disputes

GROUNDS FOR JUDICIAL REVIE" OF DECISIONS OF VOLUNTARY ARBITRATORS: 1. 2. 3. 4. 5. .ac of 6urisdiction ,ra"e abuse of discretion /iolation of due process Eenial of substantial 6ustice $rroneous interpretation of the law A "oluntary arbitrator is a G?uasi-6udicial instrumentality #(ec = C112= as amended by -A 8='2)7H hence, a petition for certiorari under -ule !5 of the -ules of 4ourt will lie where a gra"e abuse of discretion or an act without or in e<cess of 6urisdiction of the "oluntary arbitrator is shown, which may be filed with the 4ourt of Appeals. TITLE VIII: STRIMES AND LOCMOUTS AND FOREIGN INVOLVEMENT IN TRADE UNION ACTIVITIES CHAPTER I: STRIMES AND LOCMOUTS ART. 2B3. STRIMES@ PICMETING AND LOCMOUTS STRIME - Any temporary stoppage of wor by the concerted action of employees as a result of an industrial or labor dispute. IMPORTANCE: it is the most effecti"e weapon of labor in protecting the rights of employees to impro"e the terms and conditions of their employment. ,o"ernment employees may form labor unions but are not allowed to stri e. %nly legitimate labor organi3ations are gi"en the right to stri e. 9nunioni3ed wor ers may hold a protest action but not a stri e

+ot all concerted acti"ities are stri es7 they may only be protest actions. And they do not necessarily cause wor stoppage by the protesters. A stri e, in contrast, is always a group action accompanied by wor stoppage. LOCMOUT - means the temporary refusal of an employer to furnish wor as a result of an industrial or labor dispute. PICMETING # the act marching to and fro the employerDs premises, usually accompanied by the display of placards and other signs ma ing nown the facts in"ol"ed in a labor dispute. 0his is an e<ercise of oneDs freedom of speech. STRIME#BREAMER - any person who obstructs, impedes or interferes by force, "iolence, coercion, threats or intimidation with any peaceful pic eting by employees during any labor contro"ersy affecting wages, hour or conditions of wor or in the e<ercise of the right to selforgani3ation or collecti"e bargaining STRIME AREA : the establishment, warehouse, depots, plants or offices, including the sites or premises used as runaway shops of the employer struc against, as well as the immediate "icinity actually used by pic eting stri ers in mo"ing to and fro before all points of entrance to and e<it from said establishment SOME E=AMPLES OF STRIMES AND THEIR VALIDITY A. SIT#DO"N STRIME - is characteri3ed by a temporary wor stoppage of wor ers who thereupon sei3e or occupy property of the employer or refuse to "acate the premises of the employer. ILLEGAL- amounts to a criminal act because the employees trespass on the premises of the employer. B. "ILDCAT STRIME- is a wor stoppage that "iolates the labor contract and is not authori3ed by the union. ILLEGAL- It is not "alid because it fails to comply with certain re?uirements of the law, to wit@ notice of stri e, "ote, and report on stri e "ote. C. SYMPATHETIC STRIMES- are wor stoppages of wor ers of one company to ma e common cause with other stri ers of other companies, without demands or grie"ances of their own against the employer. ILLEGAL - because there is no labor dispute between the wor ers who are 6oining the stri ers and the latterDs employer. D. SECONDARY STRIMES- are wor stoppages of wor ers of one company to e<ert pressure on their employer so that the latter will in turn bring pressure upon the employer of another company with whom another union has a labor dispute. ILLEGAL- because there is no labor dispute in"ol"ed. IS A IWELGA NG BAYANJ LEGAL? NO. A Gwelga ng bayanH is illegal because it is a political stri e and therefore there is neither a bargaining deadloc nor any 9.1. It is a political rally. GROUNDS FOR THE DECLARATION OF STRIME: 1. deadloc in collecti"e bargaining #ECONOMIC)7 and;or 2. unfair labor practices #POLITICAL)
ECONOMIC STRIME A "oluntary stri e because the employee will declare a stri e to compel management to grant its demands. 0he collecti"e bargaining agent of the appropriate bargaining unit can declare an economic stri e. ULP STRIME 5POLITICAL8 NATURE An in"oluntary stri e7 the labor organi3ation is forced to go on stri e because of the 9.1 committed against them by the employer. It is an act of self-defense since the employees are being pushed to the wall and their only remedy is to stage a stri e. INITIATED BY: either a. 4ollecti"e bargaining agent or b. the legitimate labor organi3ation in behalf of its members COOLING OFF PERIOD HJ .,/* from the filing of the notice of stri e.

3I .,/* from the filing of the notice of stri e before the intended date of actual stri e sub6ect to the 8-day stri e ban. E=CEPTION TO THE COOLING#OFF PERIOD +o e<ceptionMmandatory. the cooling off period may be dispensed with, and the union may ta e immediate action in case of dismissal from employment of their +otice of stri e and stri e "ote officers duly elected in accordance with the unionDs 4onstitution and

maybe dispensed with. 0hey may stri e immediately.

Cy-laws, 03'93 6,/ 9$)*2'2<2& <)'$) :<*2')( 03&%& 23& &A'*2&)9& $7 23& <)'$) '* 23%&,2&)&..

# BUT '2 6<*2 *2'-- $:*&%+& 23& 6,).,2$%/ E#.,/ 4&%'$. :&7$%& '2 9,) *2,(& , +,-'. *2%'1&. STRIME DURATION PAY IN CASE OF A LEGAL STRIME not entitled to said pay based on the may be awarded the said paid in the discretion of the authority principle that a Sfair dayDs wage deciding the case. accrues only for a fair dayDs laborD

CHARACTERISTICS OF STRIMES:

1. there must be an established relationship between the stri ers and the person;s against whom the stri e is called 2. the relationship must be one of employer and employee 3. the e<istence of a dispute between the parties and the utili3ation by labor of the weapon of concerted refusal to wor as a means of persuading or coercing compliance with the wor ing menDs demands 4. the contention ad"anced by the wor ers that although the wor ceases, the employment relation is deemed to continue albeit in a state of belligerent suspension 5. there is wor stoppage, which stoppage is temporary !. the wor stoppage is done through the concerted action of the employees 8. the stri ing group is a legitimate labor organi3ation, and in case of bargaining deadloc , is the employeesD sole bargaining representati"e.

TESTS IN DETERMINING THE LEGALITY OF A STRIME: 1. 1urpose 0est 2. 4ompliance with 1rocedural and substanti"e re?uirements of law 3. *eans employed test 1. PURPOSE TEST - 0he stri e must be due to either - bargaining deadloc and;or - unfair labor practice. 2. COMPLIANCE "ITH PROCEDURAL O SUBSTANTIVE REFUIREMENTS OF LA" 2$ 0'2 ,# .!: ,. notice of stri7e :. :;<=9&#ay cooling&off perio# before t e inten#e# #ate of actual stri7e subject to t e 5&#ay stri7e ban. COOLING OFF PERIOD # that period of time gi"en the +4*C to mediate and conciliate the parties. It is that span of time allotted by law for the parties to settle theirdisputes in a peaceful manner, before staging a stri e or loc out. 9. s-()?# K%-# STRIME VOTE - a re?uirement wherein the decision to declare a stri e must be@ 1. appro"ed by a MAJORITY of the total union membership in the bargaining unit concerned Anot of the whole bargaining unitB, 2. obtained by SECRET BALLOT in MEETINGS OR REFERENDA called for the purpose. PURPOSE OF A STRIME VOTE: # to ensure that the intended stri e is a ma6ority decision 0he report on the stri e "ote must be submitted to the E%.$ at least 8 days before the intended stri e sub6ect to the cooling-off period. .. E#.,/ *2%'1& :,) E#DAY STRIME BAN it is the 8 day waiting period before the date of the purported stri e Awithin which the union intending to conduct a stri e must at least submit a report to the Eepartment as to the result of the stri e "oteB intended to gi"e the Eepartment an opportunity TO VERIFY whether the pro6ected stri e really carries the imprimatur of the ma6ority of the union members in addition to the cooling off period before actual stri e. 3. MEANS EMPLOYED TEST-A stri e may be legal at its inception but e"entually be declared illegal if the stri e is accompanied by "iolence which "iolence is widespread, per"asi"e and adopted as a matter of policy and not merely "iolence which is sporadic which normally occur in a stri e area Asee prohibited acti"ities under art. 2!4B. NOTE: 0he 3 tests must concur. +on-compliance with any of the aforementioned re?uisites renders the stri e illegal.

 EFFECT OF GOOD FAITH OF STRIMERS ON LEGALITY OF STRIME - A stri e may be considered legal where the union belie"ed that the company committed 9.1 and the circumstances warranted such belief in good faith, although subse?uently such allegations of 9.1 are found out as not true. #Cacus "s. %ple) TOTALITY DOCTRINE # the culpability of an employerDs remar s are to be e"aluated not only on the basis of their implicit implications but are to be appraised against the bac ground of and in con6unction with collateral circumstances. U).&% 23'* C.$92%')&D e<pressions of opinion by an employer which, though innocent in themsel"es, fre?uently were held to be culpable because@ a. of the 9'%9<6*2,)9&* under which they were uttered b. the 3'*2$%/ of the particular employerDs labor relations of anti-union bias or c. because of their 9$))&92'$) with an established collateral plan of coercion or interference. WHEN CAN THE SEC. OF LABOR ASSUME URISDICTION O"ER A STRI0E? 1. there e<ists a labor dispute causing or li ely to cause a stri e or loc out in a INDUSTRY INDISPENSABLE TO THE NATIONAL INTEREST , 2. the (ecretary of .abor and $mployment may@ a. decide it, or b. certify the same to the +.-4 for 4%*19.(%-2 A-CI0-A0I%+. NOTE: >hat constitutes ').'*4&)*,:-& ').<*2%/ is based solely upon the discretion of the (ecretary of .abor. EFFECTS OF THE ASSUMPTION OF JURISDICTION OF THE SECRETARY 1. AUTOMATICALLY ENJOINS the intended or impending stri e or loc out as specified in the assumption or certification order7 2. if one has already ta en place at the time of assumption or certification, all stri ing or loc edout employees shall IMMEDIATELY RETURN TO "ORM7 and 3. the employer shall immediately resume operations and READMIT ALL "ORMERS under the same terms and conditions pre"ailing before the stri e or loc out. A motion for reconsideration does not suspend the effects as the assumption order is immediately e<ecutory.

ISSUES THAT THE SECRETARY OF LABOR CAN RESOLVE "HEN HE ASSUMES JURISDICTION OVER A LABOR DISPUTE: a. %nly issues submitted to the (ecretary may be resol"ed by him. ((*L vs. Sec. of Labor! 8: >anuary =??=). b. Issues submitted to the (ecretary for resolution and such issues in"ol"ed in the labor dispute itself. (St. Sc olastica@s College vs. %orres- 8? >une =??8) c. (ecretary of .abor may subsume pending labor cases before .abor Arbiters which are in"ol"ed in the dispute and decide e"en issues falling under the e<clusi"e and original 6urisdiction of labor arbiters such as the declaration of legality or illegality of stri e. (Int@l ( ar"aceuticals vs. Sec of Labor- ;? >anuary =??8). d. 1ower of (ec. of .abor is plenary and discretionary. (St. Lu7e@s Me#ical Center vs. %orres- 8? >une =??:- reiterate# in (*L vs. Confesor- =; Marc =??,).

IN CASE THE STRI0E IS DECLARED LEGAL/ ARE THE STRI0ERS ENTITLED TO STRI0E DURATION PAY? GENERAL RULE: (tri ers are not entitled to their wages during the period of a stri e, &+&) '7 23& *2%'1& '* -&(,-. E=CEPTIONS:

1. In case of a ULP STRIME, in the discretion of the authority deciding the case Asee table for more distinction bet. $conomic and 9.1 stri eB 2. >here the stri ers VOLUNTARILY AND UNCONDITIONALLY OFFERED TO RETURN TO "ORM, but the employer refused to accept the offer A e.g. of an Gunconditional offerH@ Gwe will return tomorrowH and +%0 Gwilling to return pro"idedB 0hey are entitled to bac wages from the date the offer was made employees are discriminated against. 0hey are entitled to bac wages from the date of discrimination. 3. >here there is RETURN#TO#"ORM ORDER and the RULE ON REINSTATEMENT OF STRIMING "ORMERS: GENERAL RULE @ (tri ing employees are entitled to reinstatement, regardless of whether or not the stri e was the conse?uence of the employerDs 9.1 REASON@ because while out on stri e, the stri ers are not considered to ha"e abandoned their employment, but rather ha"e only ceased from their labor. 0he declaration of a stri e is +%0 a renunciation of employment relation. E=CEPTIONS # 0he following stri ers are +%0 entitled to reinstatement@ 1. U)'$) $77'9&%* who nowingly participate in an illegal stri e7 and 2. any *2%'1&%/<)'$) 6&6:&% who nowingly participates in the co""ission of illegal acts during the stri e. 0hose union members who 6oined an illegal stri e but ha"e not committed any illegal act shall be reinstated but without any bac wages.

RULE IN STRIMES IN HOSPITALS 1. It shall be the duty of stri ing employees or loc ing-out employer to pro"ide and maintain an effecti"e SMELETAL "ORMFORCE of medical and other health personnel for the duration of the stri e or loc out. 2. SECRETARY OF LABOR MAY IMMEDIATELY ASSUME JURISDICTION "ITHIN 24 HOURS FROM MNO"LEDGE of the occurrence of such stri e or loc -out or certify it to the 4ommission for compulsory arbitration. ART. 2B4. PROHIBITED ACTIVITIES LABOR ORGANIZATIONS 1. +o labor organi3ation or employer shall declare a stri e or loc out
without first ha"ing bargained collecti"ely in accordance with 0itle /II of this Coo or without first ha"ing filed the notice re?uired in Art. 2!3 or without the necessary stri e or loc out "ote first ha"ing been obtained and reported to the Eepartment.

NO *2%'1& $% -$91$<2 *3,-- :& .&9-,%&.:

a. b. c. A50$- assumption of 6urisdiction by the 1resident or the (ecretary or A50$- certification or submission of the dispute to compulsory or "oluntary arbitration or E9-I+, the pendency of cases in"ol"ing the same grounds for the stri e or loc out.

THIRD PERSONS 2. +% person A3rd personsB all obstruct, impede or interfere with by force, "iolence, coercion, threats or intimidation
any peaceful pic eting by employees during any labor contro"ersy or in the e<ercise of the right of selfbargaining or shall aid or abet such obstruction or interference. organi3ation or collecti"e

EMPLOYERS 3. +% employer shall use or employ any (0-IN$-C-$AN$- nor shall any person be employed as a stri ebrea er. PUBLIC OFFICIAL OR EMPLOYEE 4. +% public official or employee, including officers and personnel of the +ew Armed 5orces of the 1hilippines of the Integrated +ational 1olice, or armed persons,
shall bring in, introduce or escort in any manner, any indi"idual who see s to replace stri es in entering or lea"ing the premises of a stri e area, or wor in place of the stri ers. 0he police force shall eep out of the pic et lines unless actual "iolence or other criminal acts occur therein@ (rovi#e#, 0hat nothing herein shall be interpreted to pre"ent any public officers from ta ing any measure necessary to@

a. maintain peace and order, b. protect life and property, and;or c. enforce the law and legal order.

PERSONS ENGAGED IN PICMETING +% person engaged in 1I4N$0I+, shall@ a. commit any act of "iolence, coercion or intimidation or b. obstruct the free ingress to or egress from the employerDs premises for lawful purposes,or c. obstruct public thoroughfares ART. 2BJ. IMPROVED OFFER +*. REDUCED OFFER BALLOTING IMPROVED OFFER BALLOTING a referendum conducted by the +4*C on or before the 3'th day of the stri e, for the purpose of determining whether or not the impro"ed $77&% $7 23& &64-$/&% is acceptable to the union members. PURPOSE to determining whether or not the impro"ed $77&% $7 23& EMPLOYER is acceptable to the union members. to ascertain the real sentiment of the silent ma6ority of the union members on stri e. PERIOD OF FILING on or before the 3'th day of the *2%'1& LIMITATION applies only to economic stri es #deadloc ) REDUCED OFFER BALLOTING a referendum conducted by the +4*C for the purpose of determining whether or not the reduced $77&% $7 23& <)'$) is acceptable to the board of directors, trustees or partners.

to determining whether or not the impro"ed $77&% $7 23& UNION is acceptable to the union members. to ascertain the real sentiment of the silent ma6ority of the union members on stri e. on or before the 3'th day of the -$91$<2 applies only to economic stri es-deadloc in bargaining -$91$<2!

ART. 2BB. ARREST AND DETENTION acti"ities without pre"ious consultations with the (ecretary of .abor E=CEPT on grounds of@ a. national security b. public peace c. commission of a crime BOOM SI=: POST EMPLOYMENT TITLE I: TERMINATION OF EMPLOYMENT

G&)&%,- %<-& is that a police officer cannot arrest or detain a union member for union

ART. 2EL. SECURITY OF TENURE

SECURITY OF TENURE - the constitutional right granted the employee, that the employer shall not terminate the ser"ices of an employee e<cept for 6ust cause or when authori3ed by law. RELIEFS AVAILABLE TO AN ILLEGALLY DISMISSED EMPLOYEE: A. REINSTATEMENT # -estoration of the employee to the state from which he has been un6ustly remo"ed or separated without loss of seniority rights and other pri"ileges. FORMS OF REINSTATEMENT: 1. ACTUAL OR PHYSICAL REINSTATEMENT - the employee shall be admitted bac to wor 2. PAYROLL REINSTATEMENT - the employee is merely reinstated in the payroll. M$. $ 4%6(- %(5#( -7# (#)&s-$-#=#&- %' $ 5)s=)ss#5 #=3*%.## #K#& )' -7# 3($.#( %' -7# 4%=3*$)&- 5)5 &%- )&4*65# s647 (#*)#'? YES. (o long as there is a finding that the employee was illegally dismissed, the court can order the reinstatement of an employee e"en if the complaint does not include a prayer for reinstatement, unless, of course, the employee has wai"ed his right to reinstatement. Cy law, an employee who is un6ustly dismissed is entitled to reinstatement, among others. 0he mere fact that the complaint did not pray for reinstatement

will not pre6udice the employee, because technicalities of law and procedure are frowned upon in labor proceedings (Aeneral Baptist Bible College v. .LRC- 8=? SCR* 9,?). W7$- 7$33#&s )' -7#(# )s $& %(5#( %' (#)&s-$-#=#&- ,6- -7# 3%s)-)%& )s &% *%&+#( $K$)*$,*#? 0he employee should be gi"en a (9C(0A+0IA..2 $T9I/A.$+0 1%(I0I%+. If +% (9C(0A+0IA..2 $T9I/A.$+0 1%(I0I%+ I( A/AI.AC.$, reinstatement should not be ordered because that would in effect compel the employer to do the impossible. In such a situation, the employee should merely be gi"en ($1A-A0I%+ 1A2 4%+(I(0I+, %5 %+$ *%+0J (A.A-2 5%$/$-2 2$A- %5 ($-/I4$ #1@1). CIRCUMSTANCES "HEN COMPANY MAY NOT REINSTATE DESPITE ORDER OF REINSTATEMENT 1. TRANSFER OF BUSINESS O"NERSHIP -0here is no law re?uiring a purchasing corporation to absorb the employees of the selling corporation. * fortiori, reinstatement of un6ustly dismissed employees 4A++%0 be enforced against the new owner 9+.$(( there is an e<press agreement on the assumption of liabilities by the purchasing corporation7 2. >hen reinstatement is rendered IMPOSSIBLE due to the abolition of the position7 3. >hen the business has CLOSED DO"N7 4. PHYSICAL INCAPACITY of the employee7 and 5. DOCTRINE OF STRAINED RELATIONS - >hen the employer can no longer trust the employee and "ice-"ersa, reinstatement could not effecti"ely ser"e as a remedy. 0his doctrine only applies only to positions $ ic re0uire trust an# confi#ence - 9nder the circumstances where the employment relationship has become so strained to preclude a harmonious wor ing relationship, and that all hopes at reconciliation are nil after reinstatement, it would be more beneficial to accord the employee bac wages and separation pay. B. BACM"AGES the relief gi"en to an employee to compensate him for lost earnings during the period of his dismissal. PERIOD COVERED BY THE PAYMENT OF BACM"AGES # Cac wages shall co"er the period from the date of dismissal of the employee up to the date of actual reinstatement HO" COMPUTED # 9nder e<isting law, bac wages is computed from the time of the illegal dismissal up to time of actual reinstatement. INCLUDED IN THE COMPUTATION OF BACM"AGES 1. transportation and emergency allowances 2. "acation or ser"ice incenti"e lea"e and sic lea"e 3. 13th month pay. NOTE: facilities such as uniforms, shoes, helmets and ponchos should NOT be included in the computation of bac wages. REASON: said items are gi"en free, to be used only during official tour of duty not for pri"ate or personal use. CIRCUMSTANCES THAT PREVENT A"ARD OF BACM"AGES: 1. death of the employee 2. physical and mental incapacity 3. business re"erses 4. closure of business 5. reinstatement of dismissed employee !. confinement in 6ail W7)47 -$?#s 3(#4#5#&4# )& 4%&'*)4-s $()s)&+ ,#->##& #=3*%.#(Fs MANAGEMENT PREROGATI"E $&5 -7# #=3*%.##sF ()+7- -% s#46()-. %' -#&6(#? 0he employeeDs right to security of tenure. 0hus, an employerDs management prerogati"e includes the right to terminate the ser"ices of the employee but this management prerogati"e is limited by the .abor 4ode which pro"ides that the employer can terminate an employee only for a 6ust cause or when authori3ed by law. 0his limitation is because no less than the constitution recogni3es and guarantees employeeDs right to security of tenure. #Art. 28=, .abor 4ode7 Art. OIII, (ec. 3, 4onstitution) ART. 2GI. REGULAR AND CASUAL EMPLOYMENT REGULAR EMPLOYMENT - one wherein an employee is engaged to perform acti"ities which are usually necessary or desirable in the usual business or trade of the employer.

Je is a regular employee at the point of hiring. T&*2 $7 %&(<-,%'2/: nature of employment.

CASUAL EMPLOYMENT : one wherein an employee is engaged to perform acti"ities which are not necessary or desirable in the usual trade or business of the employer. - becomes a regular employee after one #1) year of ser"ice. PROJECT EMPLOYEE A pro6ect employee is one whose employment is fi<ed for a specific pro6ect or underta ing the completion of which has been determined at the time of the engagement of the employee. #(ee Art. 2&' .4) REGULAR EMPLOYEE A regular employee is one engaged to perform acti"ities which are usually necessary or desirable in the usual business or trade of the employer

TEMPORARY EMPLOYMENT OR EMPLOYMENT FOR A FI=ED SPECIFIC PERIOD - one wherein an employee is engaged to wor on a specific pro6ect or underta ing which is usually necessary or desirable in the usual business or trade of the employer, the completion of which has been determined at the time of the engagement of the employee. - Je does not become a regular employee. 0he employment is coterminous with the specific period. SEASONAL EMPLOYMENT - one wherein an employee is engaged to wor during a particular season on an acti"ity that is usually necessary or desirable in the usual business or trade of the employer. (a7iao e"ployees are considered employees as long as the employer e<ercises control o"er the means by which such wor ers are to perform their wor . $mployee is considered an regular employee insofar as the season to which he was employed is concerned. - during the off-season his employment is merely suspended not terminated #1hil. 0obacco 5lue 4urring and Erying 4orp. "s. +.-4). PROBATIONARY PERIOD OF EMPLOYMENT - the period needed to determine the fitness for the 6ob! i .e.! the time needed to learn the 6ob. It is the period during which the employer may determine if the employee is ?ualified for possible inclusion in the regular force. PURPOSE@ 0o afford the employer an opportunity to obser"e the fitness of a probationary employee at wor . NOTE@ 0he standard which the probationary employee is to meet must be made nown by the employer to the employee at the time of engagement. 0he ser"ices of probationary employees may be terminated for the same causes as in the case of regular employee, e<cept that there is an additional ground : failure to meet the standard. LIMITATIONS ON THE EMPLOYERS PO"ER TO TERMINATE A PROBATIONARY EMPLOYMENT CONTRACT: 1. the power must be e<ercised in accordance with the specific re?uirements of the contract 5COMPLIANCE "ITH SPECIFIC REFUIREMENTS87 2. if a particular time is prescribed, the termination must be within such time and if formal notice is re?uired, then that form must be used 5"ITHIN PARTICULAR PRESCRIBED TIME87 3. the employerDs dissatisfaction must be real and in good faith, not feigned so as to circum"ent the contract or the law 5DISSATISFACTIONPREAL AND IN GOOD FAITH87 and 4. there must BE NO UNLA"FUL DISCRIMINATION in the dismissal. GENERAL RULE: 1robationary employment shall not e<ceed si< months from the date the employee started wor ing. E=CEPTIONS: 1. when it is co"ered by an ,44%&)2'9&*3'4 agreement stipulating a longer period7 or 2. when the 4,%2'&* 2$ ,) &64-$/6&)2 9$)2%,92 ,(%&& $23&%0'*& , such as when the same is established by company policy or when the same is re?uired by the nature of the wor to be performed by the employee

 EFFECT IF PROBATIONARY EMPLOYEE IS ALLO"ED TO "ORM BEYOND B MONTHS If the probationary employee is allowed to wor beyond the period of ! months or the agreed probationary period, said employee becomes a regular employee by operation of law. 9nder the .abor 4ode, Gan employee who is allowed to wor after a probationary period shall be considered a regular employee.H #Art. 2&1.) ART. 2G2. TERMINATION BY EMPLOYER SECURITY OF TENURE # An employer 4A++%0 terminate the ser"ices of an employee $O4$10 for a 6ust cause or when authori3ed by law. GUIDELINES TO DETERMINE THE VALIDITY OF TERMINATION: 1. ,ra"ity of the offense 2. 1osition occupied by the employee 3. Eegree of damage to the employer 4. 1re"ious infractions of the same offense 5. .ength of ser"ice A. JUST CAUSES 5MaNaBaCA8: 1. (erious MI(4%+E940 %- >I..59. EI(%C$EI$+4$ by the employee of the lawful orders of his employer or representati"e in connection with his wor 7 Miscon#uct& transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error in 6udgment. #Eept. of .abor *anual, (ec. 4353.'1) 2. ,ross and habitual N$,.$40 by the employee of his duties7 #-epeated absenteeism and tardiness) 3. 5-A9E %- >I..59. B-$A4J by the employee of the trust reposed in him by his employer or duly organi3ed representati"e 5raud must be committed against the employer or his representati"e and in connection with the employeeDs wor . (#Eept. of .abor *anual, (ec. 4353.'1 A3B) 4. 4ommission of a C-I*$ %- %55$+($ C2 0J$ $*1.%2$$ A,AI+(0 0J$ 1$-(%+ %5 JI( $*1.%2$- or any immediate member of his family or his duly authori3ed representati"e7 and Conviction or prosecution is not re0uire#. 5. %ther causes A+A.%,%9( to the foregoing. A cause must be due to the "oluntary or willful act or omission of the employee. (.a#ura v. Benguet Consoli#ate#- A.R. .o. L&=55B;) DUE PROCESS TO BE OBSERVED BY THE EMPLOYER # 5or termination of the employment based on the any of the 6ust causes for termination, the re?uirements of due process that an employer must comply with are@ #0>I+ +%0I4$() 1. >ritten NOTICE should be ser"ed to the employee specifying the ground or grounds for termination and gi"ing the said employee reasonable opportunity within which to e<plain7 2. A HEARING OR CONFERENCE should be held during which the employee concerned, with the assistance of counsel, if the employee so desires, is gi"en the opportunity to respond to the charge, present his e"idence and present the e"idence presented against him7 3. A "RITTEN NOTICE OF TERMINATION, if termination is the decision of the employer, should be ser"ed on the employee indicating that upon due consideration of all the circumstances, grounds ha"e been established to 6ustify his termination. 5or termination of employment based on ,<23$%';&. 9,<*&*, the re?uirements of due process shall be deemed complied with upon ser"ice of a written notice to the employee and the appropriate -egional office of the Eepartment of .abor and employment at least thirty days before the effecti"ity of the termination specifying the grounds for termination. NOTE: 9nder the so-called >$+1JI. E%40-I+$ if the ser"ices of the employee was terminated due to a 6ust or authori3ed cause but the affected employeeDs right to due process has been "iolated, the dismissal is legal but the employee is entitled to damages by way of indemnification for the "iolation of the right. SERRANO +*. ISETANN et. al. ,:,).$)&. the >$+1JI. E%40-I+$ and ruled t at if t e e"ployee is #is"isse# un#er just or aut ori+e# cause but t e affecte# e"ployee@s rig t to #ue process as been violate#! his dismissal becomes ')&77&92<,-. 0herefore, the

employee is entitled to bac wages from the time he was dismissed until the determination of the 6ustness of the cause of the dismissal. AGABON +*. NLRC N$+. HE@ 2II4! abandoned the (errano doctrine and REINSTATED THE "ENPHIL DOCTRINE. 0he sanctions, howe"er must be stiffer than that imposed in >enphil.

PREVENTIVE SUSPENSION : when there is an imminent threat to the li"es and properties of the employer, his family and representati"es as well as the offenderDs co-wor ers by the continued ser"ice of the employee then he may be placed under pre"enti"e suspension pending his in"estigation, leading to termination. pre"enti"e suspension should not last for more than thirty #3') days. 0he employee should be made to resume his wor after 3' days.

it can be e<tended pro"ided the employeeDs wages are paid after the 3' day period.

ARTS. 2G3#2G4. B. AUTHORIZED CAUSES OF TERMINATION BY THE EMPLOYER: 1. installation of labor-sa"ing de"ices AUTOMATION! 2. REDUNDANCY #superfluity in the performance of a particular wor ) redundancy, for purposes of the .abor 4ode, e<ists where the ser"ices of an employee are in e<cess of what is reasonably demanded by the actual re?uirements of the enterprise. (Cis ire 4ile Co. Inc. vs. .LRC) -eorgani3ation as a cost-sa"ing de"ice is ac nowledged by 6urisprudence. An employer is not precluded from adopting a new policy conduci"e to a more economical and effecti"e management, and the law does not re?uire that the employer should be suffering financial losses before he can terminate the ser"ices of the employee on the ground of redundancy #E%.$ 1JI.I11I+$(, I+4 et al., "s. +A0I%+A. .AC%- -$.A0I%+( 4%**I((I%+ et al.)

3. RETRENCHMENT to pre"ent losses #there is e<cess of employees and employer wants to pre"ent financial losses) CONDITIONS UNDER "HICH AN EMPLOYER MAY RETRENCH: #a) substantial losses which are not merely de minimis in e<tent7 #b) imminence of such substantial losses7 #c) retrenchment would effecti"ely pre"ent the e<pected and additional losses7 #d) the alleged losses and e<pected losses must be pro"en by sufficient and con"incing e"idence. (.DC&A'%)RIE (L*.%*%IO.S! I.C.! vs. .*%IO.*L L*BOR REL*%IO.S COMMISSIO.! E%. *L) 4. closing or CESSATION OF OPERATION of the establishment or underta ing 9+.$(( the closing is for the purpose of circum"enting the pro"isions of the .abor 4ode. 5. INSTALLATION of labor sa"ing de"ices#Automation, -obotics) B. DISEASE a. the disease is incurable $it in E "ont s and the continued employment of the employee is pro ibite# by la$ or preju#icial to is ealt as $ell as to t e ealt of is co&e"ployees b. with a certification from public heath officer that the disease is incurable within ! months despite due medication and treatment. Cefore an employer could dismiss an employee based on a disease, (ection & of -ule 1, Coo /I of the %mnibus -ules Implementing the .abor 4ode re?uires a certification by a competent public health authority that the disease is of such a nature or at such stage that it cannot be cured within a period of ! months e"en with proper medical treatment. (Cat ay (acific *ir$ays vs. .LRC an# Mart a Singson) EI(4-I*I+A0I%+ I+ A+2 5%-* 5-%* 1-$-$*1.%2*$+0 0% 1%(0-$*1.%2*$+0, I+4.9EI+, JI-I+,, 1-%*%0I%+ %- A((I,+*$+0, CA($E %+ 0J$ A409A., 1$-4$I/$E %-

(9(1$40$E JI/ (0A09( %5 A+ I+EI/IE9A. I( 1-%JICI0$E. 0$-*I+A0I%+ 5-%* >%-N %+ 0J$ (%.$ CA(I( %5 A409A., 1$-4$I/$E %- (9(1$40$E JI/ (0A09( I( E$$*$E 9+.A>59.. SEC. 3J@ RA GJI4@ HIV/AIDS LA"! CAUSE OF TERMINATION A<2$6,2'$) R&.<).,)9/ R&2%&)936&)2 C-$*<%&* $% 9&**,2'$) $7 $4&%,2'$)* )$2 .<& 2$ *&%'$<* :<*')&** -$**&* $% 7'),)9',- %&+&%*&* D'*&,*& SEPARATION PAY $?ui"alent to at least one month pay $% at least one month pay for e"ery year of ser"ice, whiche"er is higher $?ui"alent to at least one month pay $% at least one month pay for e"ery year of ser"ice, whiche"er is higher $?ui"alent to one month pay $% at least one-half month pay for e"ery year of ser"ice $?ui"alent to one month pay $% at least one-half month pay for e"ery year of ser"ice #If due to se"ere financial losses, no separation pay due.) $?ui"alent to at least one-month salary or to U month salary for e"ery year of ser"ice, whiche"er is greater, a fraction of at least ! months shall be considered one #1) whole year.

NOTE@ A-0I4.$ 2&3 go"erns the grant of separation benefits Sin case of closures or cessation of operationD of business establishments +%0 due to serious business losses or cessation of operation 2.ort Davao Mining Corp. vs. .LRC! et al3. 0herefore, the employee is not entitled to such benefit if the closure was due to ($-I%9( C9(I+$(( .%(($(. >hen termination of employment is brought by the failure of an employee to meet the standards of the employer in case of probationary employment, it shall be sufficient that a written notice is ser"ed the employee within a reasonable time from the effecti"e date of termination. >hen termination is brought about by the completion of the contract or phase thereof, no prior notice is re?uired ART. 2GJ. TERMINATION BY EMPLOYEE TERMINATION BY THE EMPLOYEE: a. "ITHOUT JUST CAUSE# by ser"ing a "RITTEN NOTICE on the employer at least one month in ad"ance. 0he employer upon whom no such notice was ser"ed may hold the employee liable for damages. :. "ITH JUST CAUSE # An employee may put an end to establish "ITHOUT SERVING ANY NOTICE on the employer for any of the following 6ust causes 5SUCA8@ 1. SERIOUS INSULT by the employer or his representati"e on the hour and person of the employee7 2. Inhuman and UNBEARABLE TREATMENT accorded the employee by the employer or his representati"e7 3. 4ommission of a CRIME OR OFFENSE by the employer or his representati"e against the person of the employee or any of the immediate members of his family7 and 4. %ther causes ANALOGOUS to any of the foregoing. ART. 2GE. RETIREMENT RETIREMENT AGE & 0he age of retirement is that specified in the 4CA or in the employment contract. In the absence of a retirement plan or agreement pro"iding for retirement benefits of employees in an establishment, an employee upon reaching the age of !' years or more, but not beyond !5 years which is hereby declared as the compulsory retirement age, who has ser"ed at least 5 years in said establishment. 0he rule is different with respect to underground mining employees whose optional retirement age is 5'-!' pro"ided they ha"e at least ser"ed for a period of 5 years #Art. 2&8 as amended by -A &55&). BENEFITS - A retiree is entitled to a retirement pay e?ui"alent to at least U month salary for e"ery year of ser"ice, a fraction of at least si< #!) months being considered as one whole year. 9nless the parties pro"ide for broader inclusions, the term Gone half #1;2) month salaryH shall mean@ 15 days plus 1;12 of the 13th month pay and the cash e?ui"alent of +%0 more than 5 days of ser"ice incenti"e lea"es.

#22.5 days per year of ser"ice) 9nder (ection 2!, -.A. +o. 4!8', otherwise nown as the *agna 4arta for 1ublic (chool 0eachers, public school teachers ha"ing fulfilled the age and ser"ice re?uirements of the applicable retirement laws shall be gi"en %+$ -A+,$ (A.A-2 -AI($ upon retirement, which shall be the basis of the computation of the lump sum of the retirement pay and the monthly benefit thereafter. NOTE@ $<empted from the payment of retirement pay are retail, ser"ice and agricultural establishments or operations employing +%0 more than ten #1') employees or wor ers. A(& !'!5 !5 R&2'%&6&)2 O42'$),- but the employee must ha"e ser"ed at least J /&,%* C$64<-*$%/ #no need for fi"e years of ser"ice) BOOM SEVEN: TRANSITORY AND FINAL PROVISIONS TITLE II: PRESCRIPTION OF OFFENSES AND CLAIMS ART. 2LH. MONEY CLAIMS PERIODS OF PRESCRIPTION C,<*& MONEY CLAIMS ULP ILLEGAL DISMISSAL REINSTATEMENT P&%'$. $7 P%&*9%'42'$) 3 /&,%* from the accrual of the causes of action H /&,% from the accrual of the cause of action 4 /&,%* from the accrual of the cause of action 4 /&,%*

NOTE@ 0he period of prescription mentioned under Article 2=2 of the .abor 4ode refers to and is limited to money claims, all other cases of in6ury to rights of a wor ingman being go"erned by the 4i"il 4ode. Jence, REINSTATEMENT prescribes in 4 years. VENUE: 0he -egional Arbitration Cranch where the wor place is located #+.-4 -ules of 1rocedure.