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1.
Article 1. This Decree shall be known as the Labor Code of the Philippines
May 1, 1974 PD 442 was signed into law
Took effect Nov. 1, 1974
Article 2. This Code shall take effect Six months after its promulgation
RA 6715- Herrera-Veloso Law
Sen. Blas Ople Father of Labor Code
NOTE: Before the effectivity of the Labor code, there was no provision on the terms and
conditions of employment. This is the significance of the effectivity of the Labor Code.
Significance of RA 6715
Computation of Backwages after RA 6715 took effect, the award of backwages from
the time compensation was withheld up to the actual reinstatement
Concept of Labor
Labor in ordinary signification, is understood as the physical toil although it does not
necessarily exclude the application of skill, thus, there is skilled and unskilled labor.
General Sense: it is the exertion of human being by his mental or physical effort towards
production of goods or services.
Labor relations law is the mechanism by which employment standards are negotiated,
adjusted, and enforced.
Distinction: Labor standards the material or substance while labor relations the
mechanism that processes the substance.
1.
Labor Legislation or Social or Welfare measures consists of statutes, regulations,
and jurisprudence governing the relations between capital and labor, by providing for certain
employment standards and a legal framework for negotiating, adjusting, and administering
those standards and other incidents of employment.
e.g. social security law, agrarian reform law, law on migrant workers
Four systems of Labor
1.
slavery- refers to the extraction of work or services from any person by means of
enticement, violence, intimidation or threat, use of force or coercion, including deprivation of
freedom, abuse of authority or moral ascendance, debt bondage or deception.
A free person who offers his services to others subject to nobodys will
1.
wage system- same as modern employer-employee system where there is an
employee under the control and supervision of an employer as to the means, manner or method
of which the work is to be accomplished including the result thereof and is paid for the work
done in terms of wage.
A person offers his services to another under an employment contract for which such
service is paid by wages.
It is the equality under the law and the attainment of decent quality of life by the people
through humane productive work.
The state shall promote social justice in all phases of national development.
The state affirms labor as a primary social economic force. Therefore, it shall protect the
rights of workers and promote their welfare.
SUPREME COURT DECISIONS
Article 8, NCC.
Judicial decisions applying or interpreting the laws or the Constitution shall form a part of
the legal system of the Philippines.
Sources of labor laws (Labor Standards)
a)
The Labor Code , PD 442 as amended
b)
Judicial decisions
c)
Rules and regulations issued by administrative agencies
d)
Omnibus Rules as amended by DO No. 09, Series of 1997 & DO No. 40-03,
Series of 2003, as amended by DO Nos. 40-A-03, 40-B-03, 40-C-05
Rules and regulations have the force and effect of law, provided they do not
expand the law or strip the law. Otherwise, under the rules on statutory construction,
these will be considered void.
Sources of Labor laws (Labor Relations)
PRIMARY
a)
b)
c)
Constitution
Statutes ( NCC, RPC, Special Laws)
Supreme court decisions
SECONDARY
a)
decisions of foreign courts (where our labor statutes are based or patterned after
statutes in foreign jurisdictions, decisions in the high courts in those jurisdictions
construing and interpreting should receive the careful attention of our courts in the
application of our laws)
b)
reviewers in labor laws/ textbooks
c)
opinions of labor department or agencies
d)
rules and regulations issued DOLE ( department orders)
NOTE:
It is the states authority to enact legislation that may interfere with personal liberty or
property in order to promote the general welfare.
e.g. Art. 263(g) of the LC
Police power consists of:
a.
an imposition of restraint upon property or liberty
b.
in order to foster the common good
1.
SOCIAL JUSTICE the law is geared towards the concern of labor because Our
legislators realize the social and economic imbalance between the employer and employee.
Thus, ART 4 of the Labor Code provides:
All doubts in the implementation and interpretation of the provisions of this
Code, including its implementing rules and regulations shall be resolved in favor
of labor
(e.g. Migrant workers act, retirement law, Art. Xix, sec. 19)
2.
3.
DOCTRINE OF INCORPORATION
Article II, Sec. 2
The Philippines renounces war as an instrument of national policy, adopts the
generally accepted principles of international law as part of the law of the land, and
adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all
nations
Limitations in the Enactment of Labor Laws
Meaning, no individual must be made to work against his will (e.g. anti-trafficking in
persons act, forced labor, slavery)
4. Due process Clause ( Art. III, Sec. 1)
5. Other constitutional provision
Provisions on the effectivity of Labor laws
1.
ART. 2,NCC
Laws shall take effect after fifteen (15) days following the completion of their
publication either in the Official Gazette or in a newspaper of general circulation
in the Phils., unless it is otherwise provided
2.
ART. 5, LC
xxx. Such rules and regulations shall become effective fifteen days after
announcement of their adoption in newspapers of general circulation.
DOLE is the lead agency in enforcing labor laws and it possesses rule-making in the
enforcement of the code. But a rule or regulation that exceeds its rule-making authority is void.
The rule-making power is exceeded when the implementing rule changes, wittingly or
unwittingly, of the content or meaning of the law which the rule aims to implement. The
implementing rules must be subordinate to the law itself.
3.
1.
public or the government
2.
employers
3.
workers
Such kind of representation is not ordained, not even by the Constitution. What is
provided for, for the private sector is workers participation in policy and decision-making
processes directly affecting their rights, benefits, and welfare.
2.
BASIC PRINCIPLES
Constitutional rights of workers in relation to labor relations
1.
2.
right to conduct collective bargaining or negotiation with management (right to
demand better terms and conditions of employment)
Article 212(e)
EMPLOYEE includes any person in the employ of an employer. The term shall not be
limited to the employees of a particular employer, unless this code so expressly states. It shall
include any individual whose work has ceased as a result of or in connection with any current
labor dispute or because of any other substantially equivalent and regular employment.
natural
juridical
1.
Payment of wages
3.
Power of dismissal
4.
Power of control over employees conduct and over the means and methods by which
the work is to be accomplished
ECONOMIC REALITY TEST
Juridical Entity
3.
i.
ii.
a just cause or
when authorized by this Title.
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-Before reaching the one year period, a casual employee can be terminated if his
work is found to be unsatisfactory. The moment he reaches the one-year period,
he becomes a regular employee who can neither be removed nor dismissed
except for a just cause as provided in the LC.
3.Project Employment is one where the employment has been fixed for a specific
project or undertaking, the completion or termination of which has been
determined at the time of the engagement of the employee
Three instances when the project employee is converted into a regular employee:
1. A project employee may be converted to a regular status when he was
employed for a specific project, the completion of which is determined, but
despite the termination of the project, he is still made to work. It negates the
essence of project employment. It shows that the employees work is needed not
only in the specific project.
2. Within the project itself, and before the completion of the project, the employee
is given tasks not related at all to the project. Giving the employee additional
works negates the essence of project employment. It shows that his services is
not limited to the project. Even if the extra work is not UNOD in UTOB to the main
business, he is converted to a regular employee.
3. Maraguinot case. Under multiple succeeding projects, can have gaps between
each project, the employees can still be converted to regular status but only
when the project employee is rehired continuously, and for the same nature of
task. There is a pattern showing that UNOD in UTOB.
Note: The one-year rule only applies to casual employment, not to project nor
seasonal employees.
Two kinds of Project Employee:
1. tasks which are UNOD in UTOB
2. tasks which are not UNOD in UTOB
a. the job must be distinct from the totality of ERs business
b. the project must be definite as to its completion
c. Employment terminates with the project, regardless of the period
Whether or not the project employee is assigned to carry out a specific project or
undertaking, the duration and scope of which were specified at the time the employee is
engaged for that project.
A work pool is not necessary in order to convert the project employee into
regular, But its existence may signify that the project employee has become
regular if there is a continuous rehiring.
Requirement: 1. he must be hired for that specific project
2. the completion or termination of his project was made known to
him
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At the arrival of the season must be rehired, or else employer is guilty of illegal
termination
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The employee is given the standards at the time of engagement (employer must
explain not merely giving document)
- LC provides that the duration of probation is 6 months (maximum period of
probation). The exceptions are the following:
(a) xxx unless it is covered by an apprenticeship agreement stipulating a longer
period such as jobs which are highly technical ( not an employee); and
(b) In cases of academic personnel: the Manual of Regulations for Private School
provides a longer probationary period.
Academic personnel- Include all school personnel who are formally
engaged in actual teaching service or research assignment, either on fulltime or part-time basis, as well as those who possess certain prescribed
functions directly supportive of teaching, such as registrars, librarian,
guidance counselors, researchers, and other similar persons.
They include school officials responsible for academic matters, and may
include other school officials.
Sec 92. Manual of Regulation of Private Schools
a. for those in the secondary and elementary level, a probationary period
of not more than 3 consecutive years of satisfactory service (calendar
year)
b. for those in the tertiary level, not more than 6 consecutive regular
semesters of satisfactory service (school year)
c. for those in trimester, for not more than 9 consecutive trimesters of
satisfactory service (school year)
Non-academic personnel- means school personnel usually engaged in
administrative functions who are not covered under the definition of
academic personnel.
They may include school officials.
When is probationary employment permissible?
a. when the work requires special qualifications, skills training or experience
b. when the work, job or position involved is permanent, regular, stable or
indefinite and not merely casual or intermittent.
c. if the work is not intended to circumvent the security of tenure
d. if it is necessary or customary for the position or the job involved
General rule: Probationary period should not exceed 6 months from the date the
employee started working.
Exception: The 6 months period provided in the law admits of certain exceptions
such as:
1. when the ER and EE mutually agree on a shorter or longer period;
2. when the nature of work to be performed by the EE required a longer
period;
3. when a longer period is required and established by company policy
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a.
b.
a.
Academic Personnel
a.1. Academic teaching
a.2. Academic non-teaching (librarian)
b.
Non-Academic Personnel those staff who perform administrative functions but are not
involved in academic work
* Their employment is NOT covered by the MRPS or by the TVET Manual but by
the Labor Code.
4. In Hospitals
Q: Are Resident Physicians considered employees of hospitals?
A: It depends. If undergoing training, he is NOT an employee of the hospital. If not
undergoing training, he is an employee, but only on a term basis.
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4.
MANAGEMENT PREROGATIVE
CONCEPT
The right of an employer to regulate, generally without restraint, according to its own
discretion and judgment, every aspect of its business, subject to limitations of the law.
It should be exercised in good faith.
This privilege is inherent in the right of employers to control and manage their enterprise
effectively.
SCOPE
Extent of Management Prerogative to Prescribe Working Methods, Time, Place,
Manner and Other Aspects of Work
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Employers have the freedom and prerogative, according to their discretion and best
judgment, to regulate and control all aspects of employment in their business
organizations. Such aspects of employment include hiring, work assignments, working
methods, time, place and manner of work, tools to be used, processes to be followed,
supervision of workers, working regulations, transfer of employees, work supervision,
lay-off of workers and the discipline, dismissal and recall of workers. (Philippine Airlines,
Inc. vs. NLRC, G. R. No. 115785, Aug. 4, 2000).
Thus, as held in one case, management retains the prerogative, whenever exigencies of
the service so require, to change the working hours of its employees.
Right to Hire
This is inherently a management right because it is not found in the Labor Code.
Hence, it is not a statutory right.
It is within the right of an employer to hire his own employees. Labor laws do not,
generally, authorize interference with the employers judgment in the conduct
of business. Thus the determination of the qualifications and fitness of
workers for hiring are exclusive prerogatives of management.
The employer is free to determine using his own discretion and best judgment. All
elements of employment, from hiring to firing, except in cases of unlawful
discrimination or those which may be provided for by law.
2.
Right to Promote
Limiations: The promotion must be within the consent of the employee, as there is
no law that compels an employee to accept a promotion for the reason that a promotion
is in the nature of a reward, which a person has a right to refuse.
Right to Demote
Demotion means the movement from one position to another with a
diminution in duties and/or status or rank, not necessarily with a reduction in
salary. Demotion necessitates the issuance of a notification for demotion for
cause.
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Demotion must always be for cause and must pass the test of equity,
reasonableness and good faith. In case however, a reduction of salary is necessary, the
company must be ready to show:
1.
that it has complied with due process requirements prior to the employers action,
and
2.
that the demotion is for a cause.
Consent here on the part of the employee is not required since this can only be
exercised by the management in accordance with best interest of the company by trying
to see where a particular employee can be best maximized.
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5. Right to Dismiss
It is a right to on the management as a measure of self-protection on the
part of the employer against all acts inimical to its interest. It is not simply a
prerogative but a right because it is found in the Labor Code.
Others: reorganization & abolition of positions; early retirement program, voluntary
resignation program, job evaluation program, etc.,
Reorganization and abolition of positions
In the exercise of this management prerogative, adequate proof must be shown
that the abolished positions were unnecessary. It is not enough for a company to
merely declare that it has become overmanned. It must produce adequate proof that
such was the actual situation in order to justify the dismissal of the affected
employees for redundancy.
It is management prerogative to merge job functions in line with the
streamlining of the company to cut costs even if an employee would thereby lose his
employment due to abolition of his position.
Abolition of position due to company reorganization or merger
Management can undertake reorganization within the company or enter into
mergers with other companies to meet the demands of the enterprise. In such cases,
the company has the prerogative to abolish managerial and confidential positions or
create new ones as the necessity for them requires.
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5.
TERMINATION OF EMPLOYMENT
Right to Discipline.
The employers right to conduct the affairs of his business, according to its own
discretion and judgment, includes the prerogative to instill discipline in its employees and to
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Grounds for termination of employment: just cause & authorized cause (Arts 282
& 283); dismissal for false or non-existent cause
Just Causes
Substantial requirements
ARTICLE 282. Termination by employer. An employer may terminate an
employment for any of the following just causes:
(a)
Serious misconduct or willful disobedience by the employee of the lawful
orders of his employer or representative in connection with his work;
(b)
Gross and habitual neglect by the employee of his duties;
(c)
Fraud or willful breach by the employee of the trust reposed in him by his
employer or duly authorized representative;
(d)
Commission of a crime or offense by the employee against the person of
his employer or any immediate member of his family or his duly
authorized representative; and
(e)
Other causes analogous to the foregoing.
a. serious misconduct
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Requisites:
1. it must be serious and not minor
2. it must be work-related or relate to the performance of the employees
duties
3. it must show that the employee has become unfit to continue
working for the employer
b. willful disobedience
Refers to the willful disobedience by the employee of the lawful orders of his
employer or representative in connection with his work.
Requisites:
Orders, instructions or regulations of the employer must be:
1. lawful and reasonable
2. sufficiently known to the employee
3. in connection with the duties which the employee has been engaged to
discharge
c.
d.
fraud
1.
2.
3.
It is generic term embracing all multifarious means which human ingenuity can
device, and which are resorted to by one individual to secure advantage over
another by false suggestions or by suppression of truth and includes all surprise,
trick, cunning, dissembling ad any unfair way by which another is cheated.
Any act or omission or concealment which involves a breach of legal duty, trust
and confidence justly reposed and is injurious to another.
Requisites:
committed against the employer or his representative
in connection with the employees work
position of the employee must be with trust and confidence
e.
willful breach by the employee of the trust reposed in him by his employer or duly
authorized representative:
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o
Conviction is not necessary here, mere substantial evidence is required. No need for a
case. A mere commission of an offense against the employer will justify termination.
g.
other analogous causes
Other analogous causes e.g. abandonment, sexual harassment, gross inefficiency
or poor performance; drug use or abuse (RA 9165); attitude problem; conflict of interest,
lack of common sense
Abandonment
- analogous to gross and habitual neglect of duty. It requires deliberate,
unjustified refusal of the employee to resume his employment
Two elements must be satisfied:
failure to report for work or absence without any valid or justifiable reason
a clear intention to sever the ER-EE relationship- must be evinced by over acts
Sexual Harassment
- analogous to serious misconduct
- the gravamen of the offense in sexual harassment is not the violation of the
employees sexuality but the abuse of power by the employer. Any employee,
1.
2.
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male or female, may rightfully cry foul provided the claim is well substantiated.
Sexual harassment is an imposition of misplaced superiority.
Gross inefficiency
- Analogous to serious misconduct
- failure to observe prescribed standards of work to fulfill reasonable work
assignments
Conflict of interest or poor performance
- analogous to gross neglect for both involve specific act or omissions on the part
of the employees resulting in damage to the employer or his business. It refers to
failure to observe prescribed standards of work, or to fulfill reasonable standard
of work due to inefficiency.
- poor performance is equivalent to inefficiency and incompetence in the
performance of official duties. An unsatisfactory rating can be a just cause for
dismissal only if it amounts to gross and habitual neglect of duties.
Drug use or abuse
- analogous to serious misconduct
Republic Act 9165
ARTICLE V
Promotion of a National Drug-Free Workplace Program with the participation of
Private and Labor Sectors and the Department of Labor and Employment.
Section 47 Drug-Free Workplace it is deemed a policy of the State to
promote drug-free workplaces using a tripartite approach. With the assistance of
the Board, the Department of Labor and Employment (DOLE) shall develop,
promote and implement a national drug abuse prevention program in the
workplace to be adopted by private companies with ten (10) or more employees.
Such program shall include the mandatory drafting and adoption of company
policies against drug use in the workplace in close consultation and coordination
with the DOLE, Labor and Employer organizations, human resources
development managers and other such private sector organizations.
Section 48 Guidelines for the National Drug-Free Workplace Program The
board and the DOLE shall formulate the necessary guidelines for the
implementation of the national drug-free workplace program. The amount
necessary for the implementation of which shall be included in the Annual
General Appropriations Act.
Attitude problem
- analogous to breach of trust and confidence
- An employee who cannot get along with his co-employees is detrimental to the
company for he can upset and strain the working environment.
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Procedural Requirements
Omnibus Rules
- In all cases of termination of employment, the following standards of due
process shall be substantially observed.
For termination of employment based on just causes as defined in Art 282 of the LC:
a. A written notice served on the employee specifying the ground or grounds for
termination, and giving to said employee reasonable opportunity within
which to explain his side.
Contents:
a. Ground relied upon
b. Facts which constitute the ground
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Over-hiring of workers
Duplication of work
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For termination of employment as based on authorized causes defined in Art 283 of the
LC, the requirements of due process shall be deemed complied:
1.
with upon service of a written notice to the (show cause letter)
a. employee and (so that he can look for another job)
b. the appropriate Regional Office of the Department (so that it can check
the validity of the dismissal and for statistical purposes)
2.
at least 30 days before the effectivity of the termination
3.
specifying the ground or grounds of termination
Plus!
Separation pay- will be given 30 days after the service of notice of the
termination. This is so because it is only then that they are considered
separated from service.
Preventive Suspension; when valid/ maximum period (DO No. 9 Series of 1997)
Preventive Suspension
The right to impose preventive suspension is a management prerogative
although it is not found in the LC. It is found in its implementing and regulations.
Valid suspension
If the employees continued employment poses a serious and imminent
threat to the life and or property of the employer or of his co-workers. (section 3,
rule XIV, book V)
It is not a form of penalty, it is more of a protective measure undertaken
by the employer. One cannot impose a penalty because the employee cannot be
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Reinstatement
-if no longer feasible due to cessation of the office or business or to
strained relations, then separation pay in lieu thereof.
- When excusable:
a.
Strained relations
- must be so compelling and so serious in character that
the continued employment of the EE is so obnoxious to the
person/ business of the ER and that the continuation of such
employment has become inconsistent with peace an tranquility
which is an ideal atmosphere in every workplace.
b.
when reinstatement has become impossible because of a
supervening event
- Example: abolition in good faith the position the worker
once occupied, absence of equivalent position
c.
Closure of the establishment
d.
If the employee is already beyond retirement age
2.
Backwages
- from the time his compensation was withheld from him at the time of the
dismissal to his actual reinstatement.
3.
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- How computed:
a. if dismissal prior to effectivity of RA 6715 (March 21, 1989)
- Backwages up to 3 years without deduction or qualification
b. if dismissal on or after March 21, 1989
- Full backwages, inclusive of allowances and other benefits or
their monetary equivalent from the time their actual compensation was withheld
from them up to the time of their actual reinstatement.
Damages
- moral and/or exemplary
a.
Moral Damages
ARTICLE 2220.
Willful injury to property may be a legal
ground for awarding moral damages if the court should find
that, under the circumstances, such damages are justly
4.
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6.
BASIS
Article 286: Employment is deemed not terminated when there is:
1. Bona-fide suspension by the employer of the operation of his business or undertaking
for a period not exceeding six (6) months;
2. Fulfillment by the employee of a military duty; or
3. Fulfillment by the employee of a civic duty.
stating:
In case of suspension of operations, the ER must serve a written notice of suspension individually addressed to the EEs affected
a.
b.
c.
Suspension must not exceed 6 months, otherwise, it shall be deemed as a form of constructive dismissal and the employer shall be
under the obligation to give its workers their separation pay.
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ANALOGOUS SITUATION
There is no law on temporary retrenchment or lay-off, Article 286 applies only by
analogy.
Suspension of operation may involve only a section or department of the company and
not necessarily the entire operations.
The burden to prove bona-fide suspension of operation is on the employer.
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health or to the health of his co-employees, the employer shall not terminate his
employment unless there is a certification by competent public health authority
that the disease is of such nature of at such a stage that it cannot be cured within
a period of six (6) months even with proper medical treatment. If the disease or
ailment can be cured within the period, the employee shall not terminate the
employee but shall ask the employee to take a leave of absence. The employer
shall reinstate such employee to his former position immediately upon the
restoration of his normal health.
Requisites:
1.
The employee is found to be suffering from any disease and whose continued
employment is prohibited by law or is prejudicial to his health as well as the
health of his co-employees.
2.
There is 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 6
months.
3.
EE is paid separation pay equivalent to at least 1 month salary or month salary
for every year of service, whichever is higher.
The certification is to be secured by the employer.
-see also Phil. Aids Prevention & Control Act of 1988 (RA 8504 & DO no. 53-03, Series of
2003)
RA 8504 Phil Aids Prevention & Control Act of 1988
SECTION 6. HIV/AIDS Education in the Workplace. All government and private
employees, workers, managers, and supervisors, including members of the Armed
Forces of the Philippines (AFP) and the Philippine National Police (PNP), shall be
provided with the standardized basic information and instruction on HIV/AIDS which
shall include topics on confidentiality in the workplace and attitude towards infected
employees and workers. In collaboration with the Department of Health (DOH), the
Secretary of the Department of Labor and Employment (DOLE) shall oversee the antiHIV/AIDS campaign in all private companies while the Armed Forces Chief of Staff and
the Director General of the PNP shall oversee the implementation of this section.
xxx
SECTION 35. Discrimination in the Workplace. Discrimination in any form from
pre-employment to post-employment, including hiring, promotion or assignment, based
on the actual, perceived or suspected HIV status of an individual is prohibited.
Termination from work on the sole basis of actual, perceived or suspected HIV status is
deemed unlawful.
DEPARTMENT ORDER NO. 53-03
Series of 2003
GUIDELINES FOR THE IMPLEMENTATION OF A DRUG-FREE WORKPLACE
POLICIES AND PROGRAMS FOR THE PRIVATE SECTOR
In accordance with Article V of Republic Act No. 9165, otherwise known as the
Comprehensive Dangerous Drugs Act of 2002, and its Implementing Rules and
Regulations and in consultation with the Tripartite Task Force created under DOLE
Department Order No. 37-03, s 2002 (Tripartite Task Force), the following guidelines are
hereby issued to assist employers and employees in the formulation of company policies
and programs to achieve a drug-free workplace.
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41
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recent travel to a country or place on WHO list for local SARS transmission;
2.
3.
affliction by such symptoms as fever, cough, difficulty of breathing or shortness of breath and
diarrhea. (See Annex 1)
Workers in said workplaces must take extra precautionary measures under the guidance of the
Occupational Safety and Health Center in coordination with the Department of Health. This includes, in
particular, strict hygiene and the use of Personal Protective Equipment (PPEs). Employers shall see to it
that these PPEs (e.g. appropriate respirators such as N95, gowns, gloves) are properly worn by the
workers while at work and disposed of accordingly after use.
In the event that a worker is suspected as having SARS, the employer shall:
1.
Provide the worker with a face mask to prevent the risk of spreading the infection;
2.
Immediately isolate the worker in a separate, well ventilated room in the workplace, away from
other workers;
3.
Arrange for the worker to be transported to San Lazaro Hospital (SLH) or the Research Institute
on Tropical Medicine (RITM) or the nearest SARS designated hospitals for assessment. (See Annex 2)
Transport will be provided by the local government unit or by the referring company or SLH/RITM. The
family or next of kin shall be notified;
4.
Provide the Department of Health-NEC, the names and details of the SARS case and contacts.
Copy shall be furnished to the OSHC.
5.
Workers who have been exposed to a SARS case should be checked for body temperature and
other signs and symptoms not limited to fever, cough and difficulty of breathing. These contacts should
be advised to got on home quarantine, and
6.
Decontaminate work area with appropriated disinfectant (e.g. chlorine bleaching solution and
1:100 phenol based disinfectant).
LEAVE OF ABSENCE/ENTITLEMENTS
Leave of Absence
For workers who are requested by their employers to stay at home or who are served quarantine order
for reasons related to SARS, the following arrangements may be considered during the period of
absence:
1.
Workers leave of absence may be charged to their annual sick/vacation leave credits under the
company policy or practice or as stipulated in their collective bargaining agreement. If the workers
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The Philippine Overseas Employment Administration (POEA), the Overseas Workers Welfare
Administration (OWWA) and the International Labor Affairs Service (ILAS) shall provide information on
SARS prevention and control to Overseas Filipino Workers (OFWs) through their pre-departure
orientation seminars, and through the labor attaches, welfare officers and the Filipino Associations
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overseas. The OWWA shall provide Vitamin C and appropriate masks to outgoing OFWs.
EFFECTIVITY
This Guidelines shall take effect immediately.
(Sgd) PATRICIA A. STO. TOMAS
Secretary
17 June 2003
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47
48
Resignation is withdrawable even if the employee has called it irrevocable. But after it
is accepted or approved by the employer, its withdrawal needs the employers consent.
The burden of proof to show that the resignation was voluntarily tendered lies with the
employer.
General Rule:
If an employee resigns, the company is under no obligation to give him
separation pay.
Exception: Unless the Separation Pay upon resignation is expressly provided for under the
employment contract, by company policy or under the CBA.
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(b)
month in advance. The employer upon whom no such notice was served
may hold the employee liable for damages.
An employee may put an end to the relationship without serving any
notice on the employer for any of the following just causes:
(1)
Serious insult by the employer or his representative on the
HONOR and person of the employee;
(2)
iNHUMAN AND UNBEARABLE TREATMENT accorded the
employee by the employer or his representative;
(3)
COMMISSION OF A CRIME OR OFFENSE by the employer or his
representative against the person of the employee or any of the
immediate members of his family; and
(4)
Other causes analogous to any of the foregoing.
Retirement.
Any employee may be retired upon reaching the retirement age
established in the collective bargaining agreement or other applicable
employment contract.
In case of retirement, the employee shall be entitled to receive such
retirement benefits as he may have earned under existing laws and any
collective bargaining agreement and other agreements: Provided, however, That
an employee's retirement benefits under any collective bargaining and other
agreements shall not be less than those provided herein.
In the absence of a retirement plan or agreement providing for retirement
benefits of employees in the establishment, an employee upon reaching the age
of sixty (60) years or more, but not beyond sixty-five (65) years which is hereby
declared the compulsory retirement age, who has served at least five (5) years in
the said establishment, may retire and shall be entitled to retirement pay
equivalent to at least one-half (1/2) month salary for every year of service, a
fraction of at least six (6) months being considered as one whole year.
Unless the parties provide for broader inclusions, the term one-half (1/2)
month salary shall mean fifteen (15) days plus one-twelfth (1/12) of the 13th
month pay and the cash equivalent of not more than five (5) days of service
incentive leaves.
Retail, service and agricultural establishments or operations employing
not more than (10) employees or workers are exempted from the coverage of this
provision.
Violation of this provision is hereby declared unlawful and subject to the
penal provisions provided under Article 288 of this Code.
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52
The benefits to which the retiree may be entitled to could be higher if so provided in the
employment contract or CBA. If the benefits provided are lesser than that provided for by law,
the employer shall pay the difference between the amount due to the employee under this Rule
and that provided in the CBA or in any other employment contract.
53
However, with the enactment of RA 7641 considering there is no provision for forfeiture
of retirement pay, then an employee dismissed shall be entitled to retirement pay provided that
the legal requisites are complied with.
9.
PRESCRIPTION OF CLAIMS
They have different prescriptive periods. The action for money claim, whether principal
action or not, shall prescribe in 3 years. The action for illegal dismissal, whether principal action
or not, shall prescribe in 4 years.
On the issue of separation pay, this follows the same prescriptive period as money
claims. Thus, 3-year period applies.
10.
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56
(c)
(d)
(e)
(f)
ARTICLE 261.
Jurisdiction of Voluntary Arbitrators or panel of Voluntary
Arbitrators. The Voluntary Arbitrator or panel of Voluntary Arbitrators shall
have original and exclusive jurisdiction to hear and decide all unresolved
grievances arising from the interpretation or implementation of the Collective
Bargaining Agreement and those arising from the interpretation or enforcement of
company personnel policies referred to in the immediately preceding article.
Accordingly, violations of a Collective Bargaining Agreement, except those which
are gross in character, shall no longer be treated as unfair labor practice and
shall be resolved as grievances under the Collective Bargaining Agreement. For
purposes of this article, gross violations of Collective Bargaining Agreement shall
mean flagrant and/or malicious refusal to comply with the economic provisions of
such agreement.
The Commission, its Regional Offices and the Regional Directors of the
Department of Labor and Employment shall not entertain disputes, grievances or
matters under the exclusive and original jurisdiction of the Voluntary Arbitrator or
panel of Voluntary Arbitrators and shall immediately dispose and refer the same
to the Grievance Machinery or Voluntary Arbitration provided in the Collective
Bargaining Agreement.
ARTICLE 262.
Jurisdiction over other labor disputes. The Voluntary
Arbitrator or panel of Voluntary Arbitrators, upon agreement of the parties, shall
also hear and decide all other labor disputes including unfair labor practices and
bargaining deadlocks.
ARTICLE 262-A.
Procedures. The Voluntary Arbitrator or panel of Voluntary
Arbitrators shall have the power to hold hearings, receive evidences and take
whatever action is necessary to resolve the issue or issues subject of the
dispute, including efforts to effect a voluntary settlement between parties.
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58
59
A real party in interest is the party who stands to be benefited or injured by the judgment
in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or by
these Rules, every action must be prosecuted or defended in the name of the real party in
interest.
Amendment of the Complaint
60
Upon complaint of any interested party, the Regional Director of the Department
of Labor and Employment or any of the duly authorized hearing officers of the
Department is empowered, through summary proceeding and after due notice, to hear
and decide any matter involving the recovery of wages and other monetary claims and
benefits, including legal interest, owing to an employee or person employed in domestic
or household service or househelper under this Code, arising from employer-employee
relations: Provided, That such complaint does not include a claim for reinstatement:
Provided, further, That the aggregate money claims of each employee or househelper do
not exceed Five thousand pesos (P5,000.00). The Regional Director or hearing officer
shall decide or resolve the complaint within thirty (30) calendar days from the date of the
filing of the same. Any sum thus recovered on behalf of any employee or househelper
pursuant to this Article shall be held in a special deposit account, and shall be paid, on
order of the Secretary of Labor and Employment or the Regional Director directly to the
employee or househelper concerned. Any such sum not paid to the employee or
househelper, because he cannot be located after diligent and reasonable effort to locate
him within a period of three (3) years, shall be held as a special fund of the Department
of Labor and Employment to be used exclusively for the amelioration and benefit of
workers.
Any decision or resolution of the Regional Director or hearing officer pursuant to
this provision may be appealed on the same grounds provided in Article 223 of this
Code, within five (5) calendar days from receipt of a copy of said decision or resolution,
to the National Labor Relations Commission which shall resolve the appeal within ten
(10) calendar days from the submission of the last pleading required or allowed under its
rules.
The Secretary of Labor and Employment or his duly authorized representative
may supervise the payment of unpaid wages and other monetary claims and benefits,
including legal interest, found owing to any employee or househelper under this Code.
ARTICLE 217.
Jurisdiction of Labor Arbiters and the Commission.
(a)
Except as otherwise provided under this Code, the Labor Arbiters shall have
original and exclusive jurisdiction to hear and decide, within thirty (30) calendar
days after the submission of the case by the parties for decision without
extension, even in the absence of stenographic notes, the following cases
involving all workers, whether agricultural or non-agricultural:
(1)
Unfair labor practice cases;
(2)
Termination disputes;
(3)
If accompanied with a claim for reinstatement, those cases that workers
may file involving wages, rates of pay, hours of work and other terms and
conditions of employment; (regardless of amount)
(4)
Claims for actual, moral, exemplary and other forms of damages arising
from the employer-employee relations;
(5)
Cases arising from any violation of Article 264 of this Code, including
questions involving the legality of strikes and lockouts; and
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All complaints and petitions filed with the docket unit of the Regional
Arbitration Branch shall be immediately raffled and assigned to a Labor
Arbiter from receipt thereof.
The Executive Labor Arbiter shall be responsible for the immediate raffle
and assignment of all complaints and petitions filed with his Regional
Arbitration Branch, and the immediate forwarding of all subsequent
pleadings and motions.
c)
All pleadings and motions subsequent to the filing of the complaint shall
be forwarded to the Labor Arbiter before whom the case is pending within
twenty-four (24) hours from receipt thereof.
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65
Subject to Sections 4 and 5 of this Rule, the Labor Arbiter shall direct the parties
to submit simultaneously their verified position papers with supporting documents
and affidavits, if any, within an inextendible period of ten (10) calendar days from
the date of termination of the mandatory conciliation and mediation conference.
b)
The position papers of the parties shall cover only those claims and causes of
action raised in the complaint or amended complaint, excluding those that may
have been amicably settled, and accompanied by all supporting documents,
including the affidavits of witnesses, which shall take the place of their direct
testimony.
c)
A reply may be filed by any party within ten (10) calendar days from receipt of the
position paper of the adverse party.
d)
In their position papers and replies, the parties shall not be allowed to allege
facts, or present evidence to prove facts and any cause or causes of action not
referred to or included in the original or amended complaint or petition.
- Quantum of evidence & burden of proof; technical rules of procedure (Art 221);
Quantum of Evidence
1.
Preponderance of Evidence- evidence which is of greater weight or more
convincing or superior weight of evidence than that which is offered in opposition
to it.
2.
Clear and Convincing Evidence- refers to that measure or degree of proof
which will produce in the mind of the trier of facts a firm belief or conviction as to
the allegation sought to be established; it is more than preponderance but not to
the extent of such moral certainty as is required beyond reasonable doubt as in
criminal cases.
3.
Proof Beyond Reasonable Doubt-doubt engendered by an investigation of the
whole proof and an inability after such investigation to let the mind rest easy
upon the certainty of guilt. Requires moral certainty as to every proposition of
proof requisite to the offense.
4.
Substantial Evidence- that amount of relevant evidence which a reasonable
mind might accept as adequate to support a conclusion.
Technical Rules of Procedure
ARTICLE 221.
Technical rules not binding and prior resort to amicable
settlement.
In any proceeding before the Commission or any of the Labor Arbiters, the rules
of evidence prevailing in courts of law or equity shall not be controlling and it is the spirit
and intention of this Code that the Commission and its members and the Labor Arbiters
shall use every and all reasonable means to ascertain the facts in each case speedily
and objectively and without regard to technicalities of law or procedure, all in the interest
of due process. In any proceeding before the Commission or any Labor Arbiter, the
parties may be represented by legal counsel but it shall be the duty of the Chairman, any
Presiding Commissioner or Commissioner or any Labor Arbiter to exercise complete
control of the proceedings at all stages.
Any provision of law to the contrary notwithstanding, the Labor Arbiter shall exert
all efforts towards the amicable settlement of a labor dispute within his jurisdiction on or
before the first hearing. The same rule shall apply to the Commission in the exercise of
its original jurisdiction.
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RA 9347
Art. 213.
National Labor Relations Commission.
There shall be a National Labor Relations Commission which shall be attached to
the Department of Labor and Employment solely for program and policy coordination,
composed of a Chairman and twenty-three (23) members. aTEHIC
Eight (8) members each shall be chosen only from among the nominees of the
workers and employers organizations, respectively. The Chairman and the seven (7)
remaining members shall come from the public sector, with the latter to be chosen
preferably from among the incumbent labor arbiters.
Upon assumption into office, the members nominated by the workers and
employers organizations shall divest themselves of any affiliation with or interest in the
federation or association to which they belong.
The Commission may sit en banc or in eight (8) divisions, each composed of
three (3) members. The Commission shall sit en banc only for purposes of promulgating
rules and regulations governing the hearing and disposition of cases before any of its
divisions and regional branches and formulating policies affecting its administration and
operations. The Commission shall exercise its adjudicatory and all other powers,
functions and duties through its divisions. Of the eight (8) divisions, the first, second,
third, fourth, fifth and sixth divisions shall handle cases coming from the National Capital
Region and other parts of Luzon, and the seventh and eighth divisions, cases from
Visayas and Mindanao, respectively: Provided, That the Commission sitting en banc
may, on temporary or emergency basis, allow cases within the jurisdiction of any division
to be heard and decided by any other division whose docket allows the additional
workload and such transfer will not expose litigants to unnecessary additional expense.
The divisions of the Commission shall have exclusive appellate jurisdiction over cases
within their respective territorial jurisdiction. TaISDA
The concurrence of two (2) Commissioners of a division shall be necessary for
the pronouncement of judgment or resolution. Whenever the required membership in a
division is not complete and the concurrence of two (2) Commissioners to arrive at a
judgment or resolution cannot be obtained, the Chairman shall designate such number
of additional Commissioners from the other divisions as may be necessary.
The conclusions of a division on any case submitted to it for decision shall be
reached in consultation before the case is assigned to a member for the writing of the
opinion. It shall be mandatory for the division to meet for purposes of the consultation
ordained herein. A certification to this effect signed by the Presiding Commissioner of the
division shall be issued, and a copy thereof attached to the record of the case and
served upon the parties.
The Chairman shall be the Presiding Commissioner of the first division, and the
seven (7) other members from the public sector shall be the Presiding Commissioners of
the second, third, fourth, fifth, sixth, seventh and eighth divisions, respectively. In case of
the effective absence or incapacity of the Chairman, the Presiding Commissioner of the
second division shall be the Acting Chairman.
The Chairman, aided by the Executive Clerk of the Commission, shall have
exclusive administrative supervision over the Commission and its regional branches and
all its personnel, including the Labor Arbiters.
The Commission, when sitting en banc, shall be assisted by the same Executive
Clerk, and, when acting thru its Divisions, by said Executive Clerk for its first division and
seven (7) other Deputy Executive Clerks for the second, third, fourth, fifth, sixth, seventh
and eighth Divisions, respectively, in the performance of such similar or equivalent
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FINALS
12.
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Note: Everybody can exercise their right to association whether in the public or private sector.
DISQUALIFICATIONS:
1.) Employees of Government corporations established through special charters
Note: Only insofar as collective bargaining is concerned
2.) Managerial employees
The rationale for this inhibition has been state to be because if these managerial
employees will belong to or be affiliated with a Union, the latter might not be assured of their
loyalty to the union in view of evident Conflict in interest. The Union can also be companydominated with the presence of managerial employees in union membership. (United PepsiCola Supervisory Union vs. Laguesma)
Note: Only insofar as unions for collective bargaining is concerned.
3.) Confidential employees (Doctrine of Necessary Implication)
They are those who by reason of their positions or nature of work are required to assist
or act in a fiduciary manner to managerial employees and hence are likewise privy to sensitive
and highly confidential records. (Metro Lab Industries vs. Confessor et al)
They assist and act in a confidential capacity to or have access to confidential matters
or persons who exercise managerial functions in the field of labor relations. As such the
rationale behind the ineligibility of managerial employees to form, assist or join a labor union
equally applies to them (Philips Industrial Development vs. NLRC.)
Doctrine of Necessary Implication- what is implied in a statute is as much a part
thereof as that which is expressed.
One entrusted with confidence on delicate matters or with the custody, handling, care
and protection of the employers property.
4.) Members (co-owners of a cooperative)
An owner cannot bargain with himself or his co-owners (San Jose Electric Service
Corporation Inc. vs. Ministry of Labor)
5.) Members of International Organizations
By the Doctrine of Incorporation, they are immune from suit and cannot be subject to
local jurisdiction. (International Catholic Migration Commission vs. Calleja; Kapisanan ng mga
Manggagawa at TAC sa IRRIOLALIA vs. Secretary of Labor and Employment)
6.) Security Guards
Under RA 6715, they may now freely join a labor organization of the rank-and file or
that of the supervisory union depending on their rank in recognition of their constitutional right to
self organization
THREE-TIERED CLASSIFICATION OF EMPLOYEES IN LABOR RELATION
1.) Managerial- refers to an employee who is vested with powers or prerogatives to lay down
and execute management policies or to hire, transfer, suspend, layoff, discharge, assign or
discipline employees. (Absolute Disqualification)
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Affiliation
Chartering
-Also there are attestation requirements needed (Certification under oath by the Secretary or
Treasurer as the case may be and attested by the President) it is also needed in case of
change of name merger, consolidation and affiliation.
-Payment of registration fees
B. Where to file
a.) Regional Office- For the registration of
*independent labor unions
*Chartered locals (as amended by RA 9481) the law says that A duly registered federation or
national union may directly create a local chapter by issuing a charter certificate indicating the
establishment of the local chapter. (I believe that there is still a need to register although the
federation may first issue a charter certificate so that a chapter may be able to file a certification
election and then later on register the same and then accompany the additional supporting
documents nevertheless let us wait for what sir is to say. ) Write your notes on the space
provided.
*Workers association
b.)Bureau of Labor Relations (Manila) for the registration of:
* Federations
*National Unions
C.) When Registered
- The labor union or workers association shall be deemed registered and vested with
legal personality on the date of issuance of its certificate of registration or certificate of creation
of chartered local. (Sec 8 DO 40-33) See RA 9481 because chapter acquires personality upon
issuance by federation of charter certificate to the chapter.
D.) Assailment of Registration
Such legal personality may be questioned only through an independent petition for
cancellation of union registration (no collateral attack)
E.) DENIAL OF APPLICATION
It shall be in writing stating in clear terms the reasons thereof.
F.) APPEAL FROM THE DENIAL
To whom:
-If denial is made by the regional office appeal to the Bureau
-If denial is made by the Bureau appeal to the Secretary of Labor
Prescriptive Period
-within 10 days from receipt of such notice of denial
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within 10
Days from receipt
thereof.
Appeal to the SOLE decision of the Bureau
director
-It shall be verified under oath and consists of
memorandum on appeal stating grounds relied
upon with supporting arguments and evidence.
-No appeal- decision becomes final after 10 days
from receipt by the parties of the decision.
-only 1 Motion for reconsideration is allowed
If the decision calls for election of candidates
then follow the Constitution and by-laws if there
is a procedure for election of officers stated
therein. If there is no such procedure, then
follow the omnibus rules. (see other side of the
table)
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The Secretary of Labor shall have the power and it shall be his duty to inquire into:
(a) The existing relations between employers and employees in the Philippines;
(b) The growth of associations of employees and the effect of such associations upon employeremployee relations;
(c) The extent and results of the methods of collective bargaining in the determination of terms
and conditions of employment;
(d) The methods which have been tried by employers and associations of employees for
maintaining mutually satisfactory relations;
(e) Desirable industrial practices which have been developed through collective bargaining and
other voluntary arrangements;
(f) The possible ways of increasing the usefulness and efficiency of collective bargaining for
settling differences;
(g) The possibilities for the adoption of practical and effective methods of labor-management
cooperation;
(h) Any other aspects of employer-employee relations concerning the promotion of harmony and
understanding between the parties;
(i) The relevance of labor laws and labor relations to national development.
The Secretary of Labor shall also inquire into the causes of industrial unrest and take all
the necessary steps within his power as may be prescribed by law to alleviate the same, and
shall from time to time recommend the enactment of such remedial legislation as in his
judgment may be desirable for the maintenance and promotion of industrial peace.
The Secretary of Labor thereby is granted the power to make feasibility studies, research
and other powers necessary to carry out the powers expressly given in order to improve the
relations between employers, employees, associations and methods employed by these parties
such as those in the CBA, etc. As there is a tripartism in decision and policy making bodies of
the government, these studies shall then be submitted for legislation for the promotion of
industrial peace.
13.
1. In general
1)
2)
3)
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This presupposes that the labor organization has been duly registered.
106
Where to file
When to file
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Unorganized Establishment
1) Any legitimate labor organization
2) When requested to bargain
collectively, an employer
Organized Establishment
1) The petitioner is not listed in the
Departments registry of legitimate
labor unions;
2) The petitioners legal personality
has been revoked or cancelled with
finality in accordance with Rule XIV
of the Rules.
Regional Office which issued the
Regional Office which issued the
petitioning unions certificate of
petitioning unions certificate of
registration/certificate of creation of
registration/certificate of creation of
chartered local.
chartered local.
Anytime
General Rule: Anytime
Note:Where there is no certified
Exceptions:
bargaining agent, it shall be
1) When a fact of voluntary recognition
automatically conducted upon the filing
has been entered or a valid
of a petition by a legitimate labor
certification, consent or run-off
organization.
election has been conducted within
the bargaining unit within (1) year
prior to the filing of the petition for
certification election;
Note: Where an appeal has been filed
from the order of the Med-Arbiter
certifying the results of the election, the
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bargaining unit;
b. if there exists a duly registered
collective bargaining
agreement, that the petition is
filed within the 60-day freedom
period of such agreement; or
c. if another union had been
previously recognized
voluntarily or certified in a valid
certification, consent or run-off
election, that the petition is
filed outside the 1-year period
from entry of voluntary
recognition or conduct of
certification or run-off election
and no appeal pending
thereon.
7) The signature of at least (25%) of all
employees in the appropriate
bargaining unit;
8) Other relevant facts.
certification election;
4) Such other matters as may be
relevant for the final disposition of
the case.
Hearings
Not exceed (15) days from the date of Not exceed (15) days from the date of
the scheduled preliminary conference. the scheduled preliminary conference.
Extensions of time shall not be
Extensions of time shall not be
entertained.
entertained.
Note: Failure to appear shall be
Note: Failure to appear shall be
deemed a waiver of its right to be
deemed a waiver of its right to be heard.
heard.
Order/Decision Within (10) days from the date of the
Within (10) days from the date of the
last hearing.
last hearing.
Note: No order or decision shall be
issued during the freedom period.
Contents of
1) The name of the employer or
1) The name of the employer or
Order Granting
establishment;
establishment;
the Petition
2) The description of the bargaining
2) The description of the bargaining
unit;
unit;
3) A statement that none of the
3) A statement that none of the
grounds for dismissal exists;
grounds for dismissal exists;
4) The names of the contending
4) The names of the contending labor
labor unions;
unions;
5) A directive upon the ER and the
5) A directive upon the ER and the
contending union(s) to submit
contending union(s) to submit
within (10) days from receipt of
within (10) days from receipt of
order, the certified list of
order, the certified list of employees
employees in the bargaining unit,
in the bargaining unit, or where
or where necessary, the payrolls
necessary, the payrolls covering
covering the members of the
the members of the bargaining unit
bargaining unit for the last (3)
for the last (3) months prior to the
months prior to the issuance of the
issuance of the order.
order.
Grounds for
1) The petitioner is not listed in the
1) The petitioner is not listed in the
Denial of Petition
Departments registry of legitimate
Departments registry of legitimate
labor unions;
labor unions;
2) The petitioners legal personality
2) The petitioners legal personality
has been revoked or cancelled
has been revoked or cancelled with
with finality in accordance with
finality in accordance with Rule XIV
Rule XIV of the Rules.
of the Rules;
Note: If petition for cancellation is still
pending, the petition for certification
election cannot be denied or
suspended on such ground. Until such
time that the registration has been
cancelled, the labor union enjoys legal
personality.
3) The petition was filed before or
after the freedom period of a duly
registered CBA; provided that the
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CONDUCT OF
ELECTION
Hearing Officer
Procedure
111
Unorganized Organization
Election Officer
Election Officer
1) Within 24 hours from receipt of the 1) Within 24 hours from receipt of the
notice of entry of final judgment,
notice of entry of final judgment, the
the case shall be raffled to an
case shall be raffled to an Election
Election Officer who shall have
Officer who shall have control of the
control of the pre-election
pre-election conference and
conference and election
election proceedings.
proceedings.
3) Within 24 hours from receipt of the
2) Within 24 hours from receipt of the
assignment, the Election Officer
assignment, the Election Officer
shall cause the issuance of notice
shall cause the issuance of notice
of pre-election conference upon the
of pre-election conference upon
contending unions and the
the contending unions and the
employer, which shall be scheduled
employer, which shall be
within 10 days from receipt of
112
assignment.
Set Mechanics and Determination
of:
1) Date, time and place of the election,
which shall not be later than 45
days from the date of first preelection conference, and shall be on
a regular working day and within the
employer's premises, unless
circumstances require otherwise;
1) List of eligible and challenged
voters;
2) Number and location of polling
places or booths and the number of
ballots to be prepared with
appropriate translations, if
necessary;
3) Name of watchers or
representatives and their
alternatives for each of the parties
during the election;
4) Mechanics and guidelines of
election.
Note: Failure to appear shall be
considered as a waiver to be present
and to question or object to any of the
agreements. However, it shall not be
deprived of the right to be furnished
notices of subsequent pre-election
conferences and to attend the same.
It shall not bar the filing of a motion for
the immediate holding of another
certification or consent election within (6)
months from date of declaration of failure
of election.
Appeal or
Remedies
of the elections and certifying the union the elections and certifying the union
which obtained a majority of the valid which obtained a majority of the valid
votes cast as the sole and exclusive
votes cast as the sole and exclusive
bargaining unit under any of the
bargaining unit under any of the
following conditions:
following conditions:
1) No protest was filed or even if one 3) No protest was filed or even if one
was filed, same was not perfected
was filed, same was not perfected
within the 5-day period for
within the 5-day period for
perfection of the protest;
perfection of the protest;
2) No challenge or eligibility issue
4) No challenge or eligibility issue was
was raised or, even if one was
raised or, even if one was raised,
raised, the resolution of the same
the resolution of the same will not
will not materially change the
materially change the results of the
results of the election.
election.
Note: Where majority of the valid
Note: Where majority of the valid votes
votes cast results in No Union
cast results in No Union obtaining the
obtaining the majority, the Med-Arbiter majority, the Med-Arbiter shall declare
shall declare such fact in the order.
such fact in the order.
Any party to an election may appeal the Any party to an election may appeal the
results of the election as determined by results of the election as determined by
the Med-Arbiter directly to the SOLE on the Med-Arbiter directly to the SOLE on
the ground that the rules and
the ground that the rules and regulations
regulations or parts thereof for the
or parts thereof for the conduct of
conduct of certification election have
certification election have been violated.
been violated.
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Bargaining Unit
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115
When to Bargain
- if the jurisdictional preconditions are present, the collective bargaining should
begin within the (12) months following the determination and certification of the
employees exclusive bargaining representative (CERTIFICATION YEAR).
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117
Participation of the Private and Labor Sectors in the Enforcement of this Act
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121
After the union has been recognized by the employer as sole bargaining
representative of the employees in the bargaining unit; or
5. After the union is certified by the DOLE as such sole bargaining representative; or
6. Within the last 60 days of the live of the CBA; or
7. During the collective bargaining negotiation.
The audited financial statements, including the balance sheet and the profit and loss
statement, should be provided by the employer within 30 calendar days after receipt of the
unions request.
23. Right to policy and decision making process
Art. 255. Exclusive bargaining representation and workers participation in policy and
decision-making. The labor organization designated or selected by the majority of the
employees in an appropriate collective bargaining unit shall be the exclusive representative of
the employees in such unit for the purpose of collective bargaining. However, an individual
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130
REQUISITES
Elements
First : There is employer-employee relationship between the offender and the
offended
Second: The act done is expressly defined in the Code as an act of unfair labor practice
Conditions:
First : The injured party comes within the definition of employee as that term is defined by
the Code
Second: The act charged as ULP must fall under the prohibitions of Art. 248 (acts of the
employer) or 249 (acts of the union)
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ACTS OF ULP
Art. 248. Unfair Labor Practices of Employers
It shall be unlawful for an employer to commit any of the following unfair labor practices:
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TERMS
Surface Bargaining - an employers proposal which could not be offered with any reasonable
expectation that they would be accepted by the union
Blue Sky Bargaining
- an unrealistic and unreasonable demands in negotiations by either or
both labor and management, where neither concedes anything and demand the impossible. It
actually is not collective bargaining at all.
Featherbedding
- name given to employee practices which create or spread employment by
unnecessarily maintaining or increasing the number of employees used, or the amount of time
consumed, to work on a particular job.
Yellow Dog Contract
- is a promise exacted from workers as a condition of employment that
they are not to belong to, or attempt to foster, a union during their period of employment.
Run-away Shop
- an industrial plant moved by its owners from one location to another to
escape union labor regulations or state laws. But the term is also used to describe a plant removed
to a new location in order to discriminate against employees at the old plant because of their union
activities.
PRESCRIPTIVE PERIOD
Art. 290. Offenses
Offenses prescribed under this Code and the rules and regulations issued pursuant thereto
shall prescribe in three (3) years.
All unfair labor practices arising from Book V shall be filed with the appropriate agency within
one (1) year from accrual of such unfair labor practice; otherwise, they shall forever be barred.
PENAL PROVISION
Art. 288 Penalties
Except as otherwise provided in this Code, or unless the acts complained of hinges on a
question of interpretation or implementation of ambiguous provisions of an existing collective
bargaining agreement, any violation of this provision of this Code declared to be unlawful or penal in
nature shall be punished with a fine of not less than One Thousand Pesos (1,000.00) nor more than
Ten Thousand Pesos (10,000.00), or imprisonment of not less than three months nor more than
three years, or both such fine and imprisonment at the discretion of the court.
In addition to such penalty, any alien found guilty shall be summarily deported upon
completion of service of sentence.
Any provision of law to the contrary notwithstanding any criminal offense punished in this
Code shall be under the concurrent jurisdiction of the Municipal or City Courts and the Courts of First
Instance.
JURISDICTION
Art. 217. Jurisdiction of Labor Arbiters and the Commission
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PROCEDURE
Art. 247. Concept of unfair labor practice and procedure for prosecution thereof
Unfair labor practices violate the constitutional right and workers and employees to selforganization, are inimical to the legitimate interests of both labor and management, including their
right to bargain collectively and otherwise deal with each other in an atmosphere of freedom and
mutual respect, disrupt industrial peace and hinder the promotion of healthy and stable labormanagement relations.
Consequently, unfair labor practices are not only violations of the civil rights of both labor and
management but are also criminal offenses against the State which shall be subject to prosecution
and punishment as herein provided.
Subject to the exercise by the President or by the Secretary of Labor Employment of the
powers vested in them by Articles 263 and 264 of this Code, the civil aspects of all cases involving
unfair labor practices, which may include claims for actual, moral, exemplary and other forms of
damages, attorneys fees and other affirmative relief, shall be under the jurisdiction of the Labor
Arbiters. The Labor Arbiters shall give utmost priority to the hearing and resolution of all cases
involving unfair labor practices. They shall resolve such cases within thirty (30) calendar days from
the time they are submitted for decision.
Recovery of civil liability in the administrative proceedings shall bar recovery under the Civil
Code.
No criminal prosecution under this Title may be instituted without a final judgment, finding that
an unfair labor practice was committed, having been first obtained in the preceding paragraph.
During the pendency of such administrative proceedings, the running of the period of prescription of
the criminal offense herein penalized shall be considered interrupted: Provided, however, That the
final judgment in the administrative proceedings shall not be binding in the criminal case nor be
considered as evidence of guilt but merely as proof of compliance of the requirements herein set
forth.
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1.
2.
Affirmative Order
The Court does not only have the power to issue negative or prohibitive orders but also
affirmative or positive orders. The Court in addition to a cease and desist order may issue an
affirmative order to the respondent to reinstate the said employee with back pay from the date of
the discrimination.
3.
4.
Disestablishment
Where the employer had initiated, dominated or assisted in or interfered with the formation or
establishment of any labor organization or contributed financial or other support to it, the Court
may issue, in addition to a cease and desist order, an order directing the employer to withdraw all
recognition from the dominated labor union and to disestablish the same.
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