16. What do you understand by the following?

a. Duty to bargain collectively

The duty to bargain collectively means the performance of the mutual obligations to
meet and convene promptly and expeditiously in good faith for the purpose of negotiating
an agreement.

The duty to bargain collectively in the absence of a CBA should be complied in the
following order. Firstly, in accordance with an agreement or voluntary arrangement providing
for a more expeditious manner of collective bargaining; and secondly, in its absence
according to the provisions of the Labor Code.

The duty to bargain collectively when there is a CBA shall mean that neither party
shall terminate nor modify such agreements during its lifetime. It shall be the duty of both
parties to keep the status quo and to continue in full force and effect the terms and
conditions of the existing agreement during the freedom period and/or until a new
agreement is reached by the parties.

The duty does not compel any party to agree blindly to a proposal nor to make
concession.

b. Freedom period

It refers to the last 60 days of the 5 year lifetime of a CBA immediately prior to its
expiration. It is called freedom period because it is the only time when the law allows the
parties freely serve a notice to terminate, alter or modify the existing CBA and it is also the
only period when the majority status of the bargaining agent may be challenged by another
union by filing a petition for certification.

NOTE: A petition for certification election must be filed during the freedom period, not
before or after.

c. Automatic renewal clause

Upon the expiration of the said period and no petition for certification election is filed
by challenging union, the employer is duty bound to continue to recognize the majority
status of the incumbent bargaining agent. Pending the renewal of the CBA, the parties are
bound to keep the status quo and to treat the terms and conditions embodied therein in full
force and effect.

NOTE: This clause is deemed incorporated in all CBAs.

17. Cite the rule on disaffiliation.

The disaffiliation of an independently-registered union does not affect its
legitimate status as a labor organization. However, the same thing may not be said of
a local chapter which has no independent registration since its creation was effected
pursuant to the charter certificate issued to it by the federation or national union.
Once a local chapter disaffiliates from the federation or national union which created
it, it ceases to be entitled to the rights and privileges granted to a legitimate labor
organization. Hence, it cannot, by itself, file a petition for certification election.

Some rule/principles on disaffiliation:

Disaffiliation does not divest an affiliate union its legal personality.

Disaffiliation of an affiliate union is not an act of disloyalty.

 Disaffiliation for purposes of forming a new union does not terminate the
status of the members thereof as employees of the company. By said act of
disaffiliation, the employees who are members of the local union did not form
a new union but merely exercised their right to register their local union. The
local union is free to disaffiliate from its mother union.

Disaffiliation should be approved by the majority of the union members.

Disaffiliation terminates the right to check-off federation dues. The obligation

to check-off federation dues is terminated with the valid disaffiliation of the
affiliate union from the federation with which it was previously affiliated.

Disaffiliation does not affect the CBA. It does not operate to amend it or
change the administration of the contract.

As a general rule, a labor union may disaffiliate from the mother union to form
an independent union only during the 60-day freedom period prior to the
expiration of the existing CBA. It is not, however, legally impossible to effect
the disaffiliation prior to the freedom period, provided that the same is
approved by the majority of the members of the bargaining unit. Under this
situation, the CBA continues to bind the members of the new or disaffiliated
and independent union up to the expiration thereof.

Disaffiliating from the federation and entering into a CBA with the employer
does not constitute an unfair labor practice.

Disaffiliation is not a violation of the union security clause.

Election protest involving both the mother federation and the local union is
not a bar to disaffiliation.

The issue of affiliation or disaffiliation is an inter-union conflict, the jurisdiction

of which properly lies with the Bureau of Labor Relations (BLR) and not with
the Labor Arbiter.

18. What are the exceptions to union security clauses?

All employees in the bargaining unit covered by a Union Shop Clause in their
CBA with management are subject to its terms. However, under law and
jurisprudence, the following kinds of employees are exempted from its coverage,
namely:
1. Employees who at the time the union security agreement takes effect are
bona fide members of a religious organization which prohibits its members
from joining labor unions on religious grounds;
2. Employees already in the service and already members of a union other
than the bargaining agent at the time the union security agreement took
effect;
3. Confidential employees who are excluded from the rank and file or
supervisory bargaining unit;
4. Supervisory employees who are excluded from becoming members of the
rank and file union and vice versa;
5. Employees excluded from the union security clause by express terms of the
agreement.
19. May the president of the Republic of the Phil. Assume jurisdiction over
cases involving strike and lockout? Reason
Yes. Article 277 (g) empowers the DOLE Secretary or the President of the Republic to
assume jurisdiction or refer the case to the NLRC if the labor dispute or impending strike or
lockout involves an industry indispensable to the national interest. The President of the
Philippines shall not be precluded from determining the industries that, in his opinion, are
indispensable to the national interest, and from intervening at any time and assuming
jurisdiction over any such labor dispute in order to settle or terminate the same.
(Capitol Medical Center Inc. v. Trajano, G.R. No. 155690, [June 30, 2005], 501 PHIL 144-152)

20. What do you understand by No Strike No Lockout Clause?

A No Strike, No Lockout clause in the CBA is an expression of the firm commitment
of the parties thereto that, on the part of the union, it will not mount a strike during the
effectivity of the CBA, and on the part of the employer, that it will not stage a lockout during
the lifetime thereof.

This clause may be invoked by an employer only when the strike is economic in
nature or one which is conducted to force wage or other concessions from the employer that
are not mandated to be granted by the law itself. It does not bar strikes grounded on unfair
labor practices. This is so because it is presumed that all economic issues between the
employer and the bargaining agent are deemed resolved with the signing of the CBA.

The same rule also applies in case of lockout. The union may only invoke the said
clause in case the ground for the lockout is economic in nature but it may not be so cited if
the ground is unfair labor practice committed by the union.

A strike conducted in violation of this clause is illegal.

21. REQUISITES FOR A VALID STRIKE

In accordance with Article 263 and pertinent prevailing jurisprudence, a strike, in

order to be valid and legal, must conform to the following procedural requisites:

1st requisite - It must be based on a valid and factual ground;

2nd requisite - A notice of strike must be filed with the NCMB-DOLE;
3rd requisite - A notice must be served to the NCMB-DOLE at least twenty-four (24)
hours prior to the taking of the strike vote by secret balloting, informing said
office of the decision to conduct a strike vote, and the date, place, and time
thereof;
4th requisite - A strike vote must be taken where a majority of the members of the
union obtained by secret ballot in a meeting called for the purpose, must
approve it;
5th requisite - A strike vote report should be submitted to the NCMB-DOLE at least
seven (7) days before the intended date of the strike;
6th requisite - Except in cases of union-busting, the cooling-off period of 15 days, in
case of unfair labor practices of the employer, or 30 days, in case of collective
bargaining deadlock, should be fully observed; and
7th requisite - The 7-day waiting period/strike ban reckoned after the submission of
the strike vote report to the NCMB-DOLE should also be fully observed in all cases.

All the foregoing requisites, although procedural in nature, are mandatory and failure
of the union to comply with any of them would render the strike illegal.

22. Justify the managerial employees right to join or form a union.

Managerial employees may exercise their right to join or form a union for the sole
purpose of enhancing and defending their interest and for the purpose of mutual aid and
protection.

23. When may casual employees be considered regular casual employees?

If a casual employee has rendered at least 1 year of service, whether such service is
continuous or broken, he is considered a REGULAR employee with respect to the activity in
which he is employed and his employment shall continue while such activity exists.

24. Who are the employees not entitled to due process before the termination
of their employment can be effected or carried out?

Employees who are terminated as a consequence of the termination of project,

seasonal, casual or fixed-term employment
Probationary employees who are terminated on the ground of failure of the
probationary employee to qualify as a regular employee in accordance with
reasonable standards made known to him at the start of the employment.

25. What are the post-employment prohibitions recognized by the Labor Code?

(I could not find any provision in the Labor Code specifically recognizing valid
post-employment prohibitions, but I was able to research a list of allowed prohibitions
based on management prerogative. The employer, in the exercise of its prerogative,
may insist on an agreement with the employee for certain prohibitions to take effect
after the termination of their employer-employee relationship. In a long list of cases,
like in Daisy Tiu v. Platinum Plans Phil. Inc., the Supreme Court hinged their decision
on validity of post-employment prohibitions on Articles 1306 and 1159 of the Civil
Code:

In any event, Article 1306 of the Civil Code provides that parties to a contract
may establish such stipulations, clauses, terms and conditions as they may
deem convenient, provided they are not contrary to law, morals, good
customs, public order, or public policy.

Article 1159 of the same Code also provides that obligations arising from
contracts have the force of law between the contracting parties and should be
complied with in good faith. Courts cannot stipulate for the parties nor amend
their agreement where the same does not contravene law, morals, good
customs, public order or public policy, for to do so would be to alter the real
intent of the parties, and would run contrary to the function of the courts to
give force and effect thereto.15 Not being contrary to public policy, the non-
involvement clause, which petitioner and respondent freely agreed upon, has
the force of law between them, and thus, should be complied with in good
faith.)
1. Non-compete Clause

The employer and the employee are free to stipulate in an employment contract
prohibiting the employee within a certain period from and after the termination of his
employment, from:
starting a similar business, profession or trade; or
working in an entity that is engaged in a similar business that might compete with
the employer.

The non-compete clause is agreed upon to prevent the possibility that upon an
employees termination or resignation, he might start a business or work for a
competitor with the full competitive advantage of knowing and exploiting confidential
and sensitive information, trade secrets, marketing plans, customer/client lists,
business practices, upcoming products, etc., which he acquired and gained from his
employment with the former employer. Contracts, which prohibit an employee from
engaging in business in competition with the employer, are not necessarily void for
being in restraint of trade.

2. Forfeiture-for-Competition Clause

The Forfeiture-for-Competition Clause is a stipulation in an employment contract

wherein an employee forfeits certain benefits like stock option or incentive bonus or
deferred compensation to which an employee would have been entitled because of
his act of engaging in competitive employment or activities after termination of his
employment.

3. Compensation-for-Competition Clause

Compensation-for-Competition Clause is a provision in an employment contract

which requires the payment by the employee of some amount of money to his former
employer in order to engage in competitive employment or activities after
termination of his employment. This is also known as a "clawback" provision.

These two kinds of clauses may be combined for greater protection of the employers
interests.

4. Garden-Leave Clause

A Garden-Leave Clause is a variant of the non-compete agreement. Under this

provision, an employee who has left his work either by reason of termination or
resignation is bound to stay at home or in his garden during the garden-leave
period at which time, he continues to receive all his salaries and benefits but is
prohibited from commencing employment with new employers until this period has
elapsed. He thus remains subject to all the strictures of his former employer as if he
is still under employment with the latter.

The term garden leave is based on the old-fashioned and attractive idea that the
employee will be paid his salaries and benefits while he tends to his garden at
home.

5. Confidentiality and Non-Disclosure Clause

The confidentiality and non-disclosure clause reflects the commitment of the

employee that he shall not, either during the period of his employment with the
 employer or at any time thereafter, use or disclose to any person, firm or corporation
any information concerning the business or affairs of his employment, for his own
benefit or to the detriment of the employer. This clause may also cover Former
Employer Information and Third Party Information.

6. Non-Solicitation Clause

To protect the legitimate business interests of the employer, including its business
relationships, the employee under this clause, may, directly or indirectly, be
prohibited from soliciting or approaching, or accept any business from any person or
entity who shall, at any time within a fixed period preceding the termination of his
employment, have been:
(a) a client, talent, producer, designer, programmer, distributor, merchandiser, or
advertiser of the Company;

(b) a party or prospective party to an agreement with the employer, or;

(c) a representative or agent of any client, talent, producer, designer,

programmer, distributor, merchandiser, or advertiser of the employer for the
purpose of offering to that person or entity goods or services which are of the
same type as or similar to any goods or services supplied by the employer at
termination.

7. Non-Recruitment and Anti-Piracy Clause

This clause prohibits the recruitment by the employee of personnel or employees of

the employer for a certain period after his termination of employment, either on his
own account or in conjunction with or on behalf of any other person.

8. Inventions Assignment Clause (Intellectual Property Clause)

In industries engaged in research and development and related activities, this clause
requires the employee, within a certain period, to disclose in confidence to the
employer and its subsidiaries and to assign all inventions, improvements, designs,
original works of authorship, formulas, processes, compositions of matter, computer
software programs, databases, mask works and trade secrets, whether or not
patentable, copyrightable or protectable as trade secrets (collectively, the
Inventions), which the employee may solely or jointly conceive or develop or
reduce to practice, or cause to be conceived or developed or reduced to practice,
during the period of his employment with the employer.

26. Distinguish the termination of managerial employees from termination of

rank-and-file employees based on the ground for loss of trust and confidence.

The difference between the criteria for determining the validity of invoking loss of
trust and confidence as a ground for terminating a managerial employee on the one hand
and a rank-and-file employee on the other is that with respect to rank-and-file personnel,
loss of trust and confidence, as ground for valid dismissal,requires proof of involvement in
the alleged events in question, and that mere uncorroborated assertions and accusations by
the employer would not suffice. With respect to a managerial employee, the mere existence
of a basis for believing that such employee has breached the trust of his employer would
suffice for his dismissal. (Lima Land, Inc. v. Cuevas)
27. Distinguish constructive dismissal, illegal dismissal and forced resignation.
In illegal dismissal, the employer openly shows his intention to dismiss the employee.
In fact, the employer, in compliance with due process, asks the employee to explain why he
should not be dismissed for committing a wrongful act and he is given due process prior to
terminating him.
Constructive dismissal contemplates any of the following situations:
1) An involuntary resignation resorted to when continued employment is rendered
impossible, unreasonable or unlikely;
2) A demotion in rank and/or a diminution in pay; or
3) A clear discrimination, insensibility or disdain by an employer which becomes
unbearable to the employee that it could foreclose any choice by him except to
forego his continued employment.

In constructive dismissal, the employer will never indicate that he is terminating the
employee. He will even allow the employee to report to his work every day. But he will do
any of the three (3) acts mentioned above that indicates his intention to get rid of the
services of the employee. This is the reason why it is called dismissal in disguise.

Forced resignation is akin to constructive dismissal where the employee was merely
forced by circumstances to submit his resignation or when he has submitted a letter of
resignation due to circumstances beyond his control, his dismissal was still deemed as
constructive and therefore, illegal. (Escobin v. NLRC, GR No. 118159, April 15, 1998).

28. When may abandonment be considered a just cause for termination of

employment?
To constitute abandonment as a just cause to terminate the employment, two (2)
elements must concur, namely:
1. The employee must have failed to report for work or must have been absent
without valid or justifiable reason; and
2. There must have been a clear intention on the part of the employee to sever the
employeremployee relationship manifested by some overt act.

29. May retirement benefits be granted simultaneously with separation pay?

Yes. The separation pay and retirement pay may be granted simultaneously when no
specific prohibition against the payment of both benefits to the employee in the CBA and
Retirement Plan. There is no provision in the Termination Pay Law that an employee who
receives his termination pay upon separation from service without cause is precluded from
recovering other benefits agreed upon him and his employee. If there is nothing in the labor
agreement barring the employees from recovering whatever benefits he is entitled to under
the law additional to the gratuity benefits under the labor agreement between employee
and employer, both benefits can be awarded simultaneously.

30. Justify the participation of a dismissed employee in a certification election

proceeding.

Under sec. 5 rule 9 of D.O. no. 40-03, an employee who has been dismissed from
work but has contested the legality of the dismissal in a forum of appropriate jurisdiction at
the time of the issuance of the order for the conduct of a certification election shall be
considered a qualified voter, unless his/her dismissal was declared valid in a final judgment
at the time of the conduct of the certification election.