1.

defect which is congenital or

acquired during minority
2. legitimate spouse living with the
employee
3. the parents of said employee wholly
dependent upon him for regular
support

BENEFITS
1. for life to the primary beneficiaries,
guaranteed for five years
2. for not more than 60 months to the
secondary beneficiaries in case there
are not primary beneficiaries
3. in no case shall the total benefit be
less than P15,000.00

BENEFICIARIES
PRIMARY BENEFICIARIES
A. dependent spouse until he
remarries
B. dependent children (legitimate,
legitimated, natural born or legally
adopted)

SECONDARY BENEFICIARIES
A. illegitimate children and legitimate
descendants
B. parents, grandparents,
grandchildren

TITLE III
MEDICARE

(Repealed by National Health Insurance
Act of 1995)
(See annex for PHILHEALTH)

PAG-IBIG Law- creates a provident
savings system for employees, public and
private, with housing as the primary
investment.

BOOK FIVE

LABOR RELATIONS

TITLE I

POLICY AND DEFINITIONS


ART. 211. DECLARATION OF
POLICY

LABOR RELATIONS the interactions
between the employer and employees
and their representatives and the
mechanism by which the standards and
other terms and conditions of
employment are negotiated, adjusted
and enforced.

LABOR RELATIONS LAW those
intended to stabilize the relations of
employees and their employers, adjust
differences between them through the
encouragement of collective bargaining,
and settle labor disputes through
conciliation, mediation and arbitration.

it defines the status, rights, and
duties and the institutional
mechanisms that govern the
individual and collective
interactions of employers,
employees or their
representatives.
Absent an employer-employee
relation, there is no labor
relations to speak of.

- Collective bargaining process is
possible only when there is a labor
organization, i.e., (1) labor union
or (2) employee association.

POLICY is intended to install industrial
democracy centered on collective
bargaining, leading to social justice as
the end goal.

PARTIES TO LABOR RELATIONS CASES:
1. employees organization,
2. management, and
3. the public
The public is always to be
considered in disputes between
labor and capital, and it has
been held that the rights of the
general public are paramount.
Labor relations policy under the LC
is embodied in Section 3 Article XIII of
the 1987 Constitution which guarantees
to all workers their right among others
to:


1. Self-organization,
2. Collective bargaining and
negotiations,
3. Peaceful and concerted
activities including the right to
strike in accordance with law,
and
4. Participate in policy and
decision-making processes
affecting their rights and
benefits as may be provided by
law.

ART. 212. DEFINITIONS

EMPLOYER- one who employs the
services of others; one for whom
employees work and who pays their
wages or salaries.
any person acting in the interest of an
employer, directly or indirectly. The
term does not include a labor
organization or any of its officers and
agents, EXCEPT when acting as an
employer.

EMPLOYEE- one who works for an
employer; a person working for salary or
wages.
Shall not be limited to the
employees of a particular
employer, and 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
unfair labor practice IF he has
not obtained any other:
1. Substantially equivalent
and
2. Regular employment
(Art.212f)

ICAWO vs. CIR (16 SCRA 562): The
category of any employee is so broad
as to justify employee status for
supervisors, regular workers, casual
employees, emergency laborers,
substitute workers, seasonal workers,
part-time workers and other special
work groups.

APEX MINING CO., vs. NLRC (196 SCRA
251): Laundrywoman not actually
serving the family of the employer but
working in the staff houses or within the
premises of the employers business is a
regular employee and is not included in
the definition of domestic helper.

FELIX vs. BUENASEDA (240 SCRA 139):
Residency or resident physician position
in a medical specialty is not employment
but connotes training and temporary
status. (No E-E relationship)


WORKERS ASSOCIATION - any
association of workers organized for the
mutual aid and protection of its
members or for any legitimate purpose
other than for collective bargaining.

INDEPENDENT UNION It refers to
any labor organization operating at the
enterprise level whose legal personality
is derived through an independent action
for registration with the Bureau of Labor
Relations (BLR) of the Department of
Labor and Employment prescribed under
Art. 234. It may be affiliated with a
federation, national or industry union, in
which case it may also be referred to as
an affiliate.

FEDERATION - any labor organization
with at least 10 locals/chapters or
affiliates each of which must be a duly
certified or recognized as the sole and
exclusive collective bargaining agent of
the employees of an appropriate
bargaining unit.

LEGITIMATE WORKERS ASSOCIATION
refers to an association of workers
organized for mutual aid and protection
of its members of for any legitimate
purpose other than collective bargaining
registered with the Department in
accordance with Rule III, Sections 2-C
and 2-D of these rules.

LABOR MANAGEMENT COUNCIL
- Deals with the employer on
matters affecting the employees
rights, benefits and welfare.
- Purposes are to:
a. promote gainful employment
b. improve working conditions and
c. achieve increased productivity
(RA 6971)

LABOR ORGANIZATION any union or
association of employees which exists in
whole in part for the purpose of
collective bargaining with employers
concerning terms and conditions of
employment.

LEGITIMATE LABOR ORGANIZATION-
any labor organization which is duly
registered with the Department of
Labor. The term includes a
local/chapter of the Bureau of Labor
Relations directly chartered by a
legitimate federation or national union
which has been duly reported to the
Department in accordance with Rule VI,
Section 2 of Book V of the Rules
Implementing the LC.

LABOR DISPUTE includes any
controversy or matter concerning:

1. terms or conditions of employment
OR
2. the association or representation of
persons in negotiating, fixing,
maintaining, changing or arranging
the terms and conditions of
employment

REGARDLESS of whether the disputants
stand in the proximate relation of
employer and employee.

The test
of whether a labor controversy comes
within the definition of a labor dispute
depends on whether it involves or
concerns terms, conditions of
employment, or representation.

TYPES OF LABOR DISPUTES:
1. Labor Standards Disputes
a. Compensation [e.g.,
underpayment of minimum
wage; stringent output quota;
illegal pay deductions]
b. Benefits [ e.g., nonpayment of
holiday pay, overtime pay or other
benefits]
c. Working conditions [e.g., unrectified
work hazards]

2. Labor Relations Disputes
a. Organizational right dispute/
unfair labor practice [e.g.,
coercion, restraint or
interference in unionization
efforts; reprisal or discrimination
due to union activities; company
unionism]
b. Representation disputes [e.g.,
determination of the collective
bargaining unit; ULP strike;
uncertainty as to determination
of the sole and exclusive
bargaining agent of the
employees in an appropriate
bargaining unit which is the
majority union]
c. Bargaining disputes [e.g., refusal
to bargain (ULP); bargaining
deadlock; economic strike or
lockout]
d. Contract administration or
personnel policy disputes [e.g.,
noncompliance with CBA
provisions (ULP if gross
noncompliance with economic
provisions); disregard of
grievance machinery; violation
no strike/no lockout agreement]
e. Employment tenure disputes
[e.g., non regularization of
employees; illegal termination;
non-issuance of employment
contract]

PARTIES TO A DISPUTE:
1. PRIMARY PARTIES employer,
employees, union
2. SECONDARY PARTIES voluntary
arbitrator, agencies of DOLE (BLR,
VAC), NLRC, Sec. of Labor, Office of
the President

TITLE II

NATIONAL LABOR RELATIONS
COMMISSION

CHAPTER I

CREATION AND COMPOSITION

ART. 213. NATIONAL LABOR
RELATIONS COMMISSION

NLRC an administrative body with
quasi-judicial functions and the principal
government agency that hears & decides
labor-management disputes; attached to
the DOLE for program & policy
coordination only.

POWERS of the NLRC as amended by
R.A. 6715

EN BANC

1. Promulgating rules &
regulations governing the
hearing & disposition of cases
before any of its divisions and
regional branches and
formulating policies affecting
its administration and
operations.

2. Under R.A. 7700: to allow cases
within the jurisdiction of any
division to be heard and
decided by any other decision
whose docket allows the
additional workload.

DIVISION

1. Exercises adjudicatory or
appellate power over decisions
of Labor Arbiters and Regional
Directors of the DOLE over
monetary claims not over
P5,000.00 and all other powers,
functions and duties through its
divisions.
TRIPARTISM

The NLRC is composed of five (5)
divisions.

Three (3) sectors are
represented in the composition
of the NLRC.

Each division composed of three
commissioners will have
representatives from the
following:

1. from the public sector-
nominated by the Secretary
of Labor
2. workers organizations-
nominated by the labor
federation
3. employer and
management sector-
nominated by the Employers
Confederation of the
Philippines (ECOP)

QUALIFICATIONS OF THE CHAIRMAN AND
THE COMMISSIONERS:
1. must be a member of the
Philippine Bar;
2. must have been engaged in the
practice of law in the Philippines
for at least 15 years;
3. must have experience or
exposure in handling labor
management relations for at
least 5 years; and
4. preferably a resident of the
region where he is to hold office.

The appointment of the Chairman
and the Commissioners of the NLRC
are not subject to confirmation by
the Commission on Appointments.

QUALIFICATIONS OF EXECUTIVE
LABOR ARBITERS/LABOR ARBITERS:
1. must be members of the
Philippine Bar;
2. must have been engaged in the
practice of law in the Philippines
for at least 7 years; and
3. must have experience or
exposure in handling labor
management relations for at
least 3 years.

TERM OF OFFICE OF THE CHAIRMAN,
COMMISIONERS, AND LABOR ARBITERS:

They shall hold office during good
behavior until they reach the age of
65 unless removed for causes as
provided by law or become
incapacitated to discharge the
function of his office.

A. EXCLUSIVE AND ORIGINAL
JURISDICTION OF THE NLRC:

1. Cases certified to it for compulsory
arbitration by the Secretary of Labor
under Art. 263 CERTIFIED CASES;

2. INJUNCTION CASES under Art. 218
and 264; AND
3. CONTEMPT CASES

B. EXCLUSIVE APPELLATE JURISDICTION
OF THE NLRC:

1. Cases DECIDED BY LABOR
ARBITERS under Art 217b of the
Labor Code and Sec 10 RA
8012(Migrant Workers Act); and

2. Cases DECIDED BY THE REGIONAL
OFFICES OF DOLE IN THE EXERCISE
OF ITS ADJUDICATORY FUNCTION
under Art 129 of the Labor Code over
monetary claims of workers
amounting to not more that
P5,000.00

THE NLRC ONLY SITS EN BANC
FOR PURPOSES OF:

a. promulgating rules and regulations
governing the hearing and disposition of
cases before any of its divisions and
regional branches, and

b. formulating policies affecting its
administration and operations.
The Commission may only sit
en banc for the determination
of policies and NOT for
purposes of adjudication. (RA
6715)

Adjudication of cases certified
to the NLRC, or appealed to it
from the decision of its Labor
Arbiters are referred to and
decided by its five (5) divisions.

-Petitions for certiorari (Rule 65)
against decisions of the NLRC should
henceforth be initially filed with the
Court of Appeals in strict observance of
the doctrine on the hierarchy of courts
as the appropriate forum for the relief
desired. The Court of Appeals is
procedurally equipped to resolve unclear
or ambiguous factual finding, aside from
the increased number of its component
divisions. (St. Martins Funeral Homes
vs. NLRC; G.R. No. 130866)

- Findings of facts of a labor tribunal
are accorded the utmost respect by the
courts and are well-nigh conclusive if
supported by substantial evidence.

- L
abor cases are not subject to Barangay
Conciliation since ordinary rules of
procedure are merely suppletory in
character vis--vis labor disputes which
are primarily governed by labor laws.

- T
he failure of the petitioner to file a
motion for reconsideration of the
decision of NLRC before filing a petition
for certiorari has in certain instances
been held not to be a fatal omission.

- In
certain cases however the filing of a
Motion for Reconsideration is deemed a
condition sine qua non for the filing of a
Petition for Certiorari.

CHAPTER II
POWERS AND DUTIES


ART. 217. JURISDICTION OF
LABOR ARBITERS AND THE COMMISSION

EXCLUSIVE AND ORIGINAL
JURISDICTION OF LABOR ARBITERS:

- Except as otherwise provided
under this Code the Labor Arbiters
shall have original and exclusive
jurisdiction to hear and decide, within
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. ULP 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;

4. Claims for actual, moral,
exemplary and other forms of
DAMAGES arising from employer-
employee relations;

5. CASES ARISING FROM ANY
VIOLATION OF ART 264 of this
Code, including questions
involving the legality of strikes
and lockouts;

6. Except claims for Employees
Compensation, Social Security,
Medicare and maternity benefits,
ALL OTHER CLAIMS ARISING
FROM EMPLOYER-EMPLOYEE
RELATIONS, including those of
persons in domestic or household
service, involving an amount
exceeding P5,000.00 regardless
of whether accompanies with a
claim for reinstatement;

7. MONETARY CLAIMS OF
OVERSEAS CONTRACT WORKERS
under the Migrant Workers Act of
1995; and

8. Claims of employees against
GOCCs if the latter does not
have an original charter and has
been incorporated under the
Corporation Code.

Although the provision speaks of
EXCLUSIVE AND ORIGINAL
JURISDICTION OF labor arbiters,
the cases enumerated may
instead be submitted to a
voluntary arbitrator by
agreement of the parties under
Art. 262. The law prefers
voluntary over compulsory
arbitration.

Cases which must be disposed of
by the labor arbiter by referring the
same to the grievance machinery and
voluntary arbitration:

a. Disputes on the
interpretation or implementation of
CBA and

b. those arising from the
interpretation or enforcement of
company personnel policies.

The labor arbiter and the NLRC have
no jurisdiction over claims filed by
employees against international
agencies such as IRRI, WHO etc.
unless they expressly waive their
immunity. (Lasco vs. UNRFNRE)

They also have no jurisdiction over
illegal dismissal cases of corporate
officers which fall under PD 902-A
and now fall under the jurisdiction of
the Regular Courts pursuant to the
New Securities Regulation Code.
[Formerly under the jurisdiction of
the Securities and Exchange
Commission (SEC) (Dily-Daly Nakpil vs
NLRC)]
In the absence of service of
summons or a valid waiver
thereof, the hearings and
judgment rendered by the labor
arbiter are null and void.

COMPULSORY ARBITRATION: The
process of settlement of labor disputes
by a government agency which has the
authority to investigate and make and
award binding to the parties.

The NLRC may conduct compulsory
arbitration only in national interest cases
referred to it by the DOLE secretary.

Labor arbiters jurisdiction is
employment related.

ART. 218. POWERS OF THE
COMMISSION

POWERS OF THE NLRC:
a. Rule-making power
[promulgation of rules &
regulations governing disposition
of cases before any of its
divisions/regional offices]
b. Power to issue compulsory
processes [administer oaths,
summon parties, issue
subpoenas]
c. Power to investigate matters and
hear disputes within its
jurisdiction [adjudicatory
poweroriginal & appellate
jurisdiction over cases]
d. Contempt power [218]
e. Power to issue injunctions and
restraining orders

PROCEDURE FOR THE ISSUANCE
OF RESTRAINING ORDER/ INJUNCTION:
a. filing of a verified PETITION

b. HEARING AFTER DUE AND PERSONAL
NOTICE has been served in such manner
as the Commission shall direct, to:
a. all known persons against
whom the relief is sought and
b. also to the Chief Executive
or other public officials of the
province or city within which the
unlawful acts have been
threatened or committed
charged with the duty to protect
the complainants property.

c. RECEPTION AT THE HEARING OF
THE TESTIMONIES OF WITNESSES
with opportunity for cross-
examination, in support of the
allegations of the complaint made
under oath as well as testimony in
opposition thereto

d. FINDING OF FACT of the Commission
to the effect that :
prohibited or unlawful acts
have been threatened and will
be committed, or have been
committed and will be
continued unless restrained,
but no injunction or temporary
restraining order shall be
issued on account of any
threat, prohibited or unlawful
act, except against the
persons, association or
organization making the threat
or committing the prohibited
or unlawful act or actually
authorizing or ratifying the
same after actual knowledge
thereof.
That substantial and
irreparable injury to the
complainants property will
follow
That as to each item of
relief to be granted, greater
injury will be inflicted upon
complainant by the denial of
the relief than will be inflicted
upon the defendants by the
granting of the relief
That complainants has no
adequate remedy at law
That public officers charged
with the duty to protect
complainants property are
unable or unwilling to furnish
adequate protection.

e. Posting of a BOND

IRREPARABLE INJURY: An injury
which cannot be adequately
compensated in damages due to the
nature of the injury itself or the nature
of the right or property injured or when
there exists no pecuniary standard for
the measurement of damages.

ADEQUATE REMEDY: One that
affords relief with reference to the
matter in controversy and which is
appropriate to the particular
circumstances of the case.

The power of the NLRC to enjoin
or restrain the commission of any or all
prohibited or unlawful acts under Art.
218 of the Labor Code can only be
exercised in a labor dispute.

REQUISITES BEFORE TRO MAY
BE ISSUED EX PARTE:
1. The complainant shall ALLEGE
THAT, unless a TRO is issued
without notice, a substantial
and irreparable injury to
complaints property will be
unavoidable;
2. TESTIMONY UNDER OATH is
sufficient, if sustained, to justify
the Commission in issuing a
temporary injunction upon
hearing after notice;
3. The complainant shall first FILE
AN UNDERTAKING WITH
ADEQUATE SECURITY/BOND in
an amount to be fixed by the
Commission sufficient to
recompense those enjoined for
any loss, expenses or damage
caused by the improvident or
erroneous issuance of such order
or injunction, including all
reasonable costs, together with
a reasonable attorneys fee, and
expense of defense against the
granting of any injunctive relief
sought in the same proceeding
and subsequently denied by the
Commission.
T
he TRO shall be effective for no
longer than 20 days and shall
become void at the expiration of said
20 days counted from the date of the
posting of the bond.
It
may be lifted or it may be upgraded
to a permanent injunction.
T
he procedural and substantial
requirements of Art 218 (e) must be
strictly complied with before an
injunction may issue in a labor
dispute.

THE FOLLOWING CAN ISSUE
INJUNCTIONS/ TRO IN LABOR DISPUTES:

1. P
resident (ART. 263, g)
2. S
ecretary of Labor (ART. 263, g)
3. N
LRC (218)
4. L
abor Arbiters (ART. 217/RULE XI Sec.
1 of IR&R)
5. R
egional Directors
6. M
ed- Arbiters

ART. 219. OCULAR INSPECTION

The Chairman, any Commissioner,
labor Arbiter or their duly authorized
representatives may, at anytime during
working hours:
a. Conduct an ocular inspection on
any establishment, building,
ship, place or premises,
including any work, material,
implement, machinery,
appliance or any object therein;
and
b. Ask any employee, laborer, or
any person as the case may be
for any information or date
concerning any matter or
question relative to the object
of the investigation

ART. 221. TECHNICAL RULES
NOT BINDING AND PRIOR RESORT TO
AMICABLE SETTLEMENT
The NLRC may disregard technical
rules of procedure in order to give life to
the constitutional mandate affording
protection to labor. (Principe vs.
Philippine-Singapore Transport Services
Inc.)

RES JUDICATA applies only to
judicial or quasi-judicial proceedings and
NOT to the exercise of administrative
powers.

APPROVAL OF AN AMICABLE
SETTLEMENT BY A LABOR ARBITER
An amicable settlement of a labor
dispute should be approved by the labor
arbiter before whom the case is pending
after being satisfied that:

a. it was VOLUNTARILY ENTERED into
by the parties and

after having EXPLAINED TO THEM
THE TERMS AND CONSEQUENCES
thereof.

PURPOSE: for the employees
protectionbecause the labor arbiter
before whom the case is pending would
be in a better position than just any
other person to personally determine the
voluntariness of the agreement and
certify its validity (Periquet vs. NLRC).

The Rules of Court are applied in
a suppletory character.

COMPROMISE, as a way of
settling disputes is encouraged
through compromise, the
parties, by making reciprocal
concessions, avoid litigation
or put an end to one already
commenced.

ART. 222. APPEARANCES AND
FEES

APPEARANCE OF NON-LAWYERS
BEFORE THE COMMISSION:

GENERAL RULE: ONLY lawyers can
appear before the NLRC or a Labor
Arbiter

EXCEPTIONS: Non-Lawyers can
appear ONLY in the following instances:

1. if they represent
themselves;
2. if they represent their
organization or
members thereof; or
3. if he is a duly accredited
member of the legal aid office
duly recognized by the DOJ in
cases referred thereto by the
latter or by the IBP.

ATTORNEYS FEES:
1. Art. 111 Labor Code (simple
monetary claim)
The maximum amount to be
given a lawyer for his legal
assistance rendered which is 10% of
the total monetary award adjudged
the employees excluding the award
for moral and exemplary damages.
To demand more than this is
unlawful.

2. Art. 222

a. a. Attorneys fees for CBA
negotiations and conclusion shall
be in the amount agreed upon by
the parties to be taken from the
union funds and not from
individual union members.

b. This article prohibits the
payment of attorneys fees only
where the same is effected
through forced contributions
from the workers form their own
funds as distinguished from union
funds.

c. Neither the lawyer nor the
union itself may require the
individual workers to assume the
obligation to pay the attorneys
fees from their own pockets.
Any agreement to the contrary
shall be null and void.

ARTICLE 211 VS ARTICLE 222

ART. 211 ART. 222
Prohibits the
award of
attorneys fees
which exceed 10%
of the amount of
wages recovered.
Prohibits the
payment of
attorneys fees only
when it is effected
through forced
contribution from the
workers from their
own funds as
distinguished from
union funds
PURPOSE: to
fix the limit on the
amount of
attorneys fees.
The victorious
party may recover
in any
administrative or
judicial
proceeding.
PURPOSE: to
prevent the
imposition on the
workers of the duty
to individually
contribute their
respective shares in
the fee to be paid to
the attorney for his
services to the union.

CHAPTER III

APPEAL

ART. 223. APPEAL

GROUNDS FOR APPEAL:

1. If there is prima facie evidence of
abuse of discretion on the part of
the Labor Arbiter
2. If the decision, order or award was
secured through fraud or coercion,
including graft and corruption;
3. If made purely on questions of law;
and
4. If serious errors in the findings of
facts are raised which would cause
grave or irreparable damage or
injury to the appellant.

PERIODS WITHIN WHICH TO
APPEAL:

A. decisions of the regional director:

within 5 calendar days from
receipt of the order [129 LC
Recovery of wages and simple
money claims of the amount not
exceeding P5,000.00].

B. decisions of the labor arbiter:

within 10 calendar days from
the receipt of the decision.
The appeal must be under oath
and must state specifically the
grounds relied upon and the
supporting arguments.
Where the 10th day falls on a
Saturday, Sunday or legal
holiday, the appeal may be filed
on the next business day. (Rules
of Procedure of NLRC)

PERIOD TO APPEALNOT
EXTENDIBLE
It is the policy of the state
to settle expeditiously labor
disputes.
The perfection of an appeal
within the statutory/
reglementary period is not
only mandatory but also
jurisdictional and failure to
do so renders the questioned
decision final and executory
as to deprive the appellate
court of jurisdiction to alter
the final judgment of the
RDs and LAs. (Aboitiz
Shipping Employees
Association vs. Trajano)
REQUISITES FOR THE
PERFECTION OF AN APPEAL TO THE
NLRC:
1. Filing of A VERIFIED
MEMORANDUM OF APPEAL within
the required period of appeal;
2. In case of monetary award, when
the appellee is the employer he
should file an APPEAL BOND
corresponding to the monetary
award excluding awards for moral
and exemplary damages and
attorneys fees.
W
here the employer failed to
post a bond to perfect its
appeal, the remedy of the
employee is a motion to
dismiss the appeal, NOT a
petition for mandamus.
T
he intention of the
lawmakers is to make the
bond an indispensable
requisite for the perfection
of an appeal by the
employer.
3. A
ppeal fee of P150;
4. Proof of service - furnish the
other party with a copy of the
memo of appeal.

F
ailure to give a copy of the
appeal to the appellee
within 10 days is not fatal IF
the latter was not
prejudiced by the delay in
the service of said copy of
the appealtechnical rules
must yield to the broader
interest of substantial
justice. (Modern Fishing
Gear Labor Union vs. Noriel)
A
mere notice of appeal does
not stop the running of the
reglementary period of
appeal.

EXECUTION PENDING APPEAL - the
decision of the labor arbiter ordering
the reinstatement of a dismissed or
separated employee shall be
immediately executory insofar as the
reinstatement aspect is concerned and
the posting of an appeal bond by the
employer shall not stay such
execution.

T
here is no need for a motion
for the issuance of writ of
execution on the
reinstatement order as it is
self-executory. (Pioneer
Texturizing Co. vs. NLRC)

Perfection of appeal within the
reglementary period is both
MANDATORY and JURISDICTIONAL.
(ACDA vs NLRC; Volkschel vs NLRC)

Non-service of the copy of the
appeal/appeal memorandum to the
adverse party is not a jurisdictional
effect and does not justify dismissal of
the appeal.


AMOUNT OF APPEAL BOND: amount
equal to the monetary award exclusive
of damages (moral and exemplary) plus
attorneys fees.

OPTIONS OF THE EMPLOYER IN
COMPLYING WITH AN ORDER OF
REINSTATEMENT WHICH IS
IMMEDIATELY EXECUTORY:
1. He can ADMIT THE DISMISSED
employee back to work under the
same terms and conditions prevailing
prior to his dismissal or separation or
to a substantially equivalent position
if the former position is already
filled up, OR

2. He can REINSTATE THE EMPLOYEE
MERELY IN THE PAYROLL WITH
PAYMENT OF THE ACCRUED
SALARIES.
F
ailure to exercise one of the
foregoing options may be
compelled under pain of
contempt and the employer
may be made to pay instead
the salary of the employee.

A petition for relief from the
decision of the labor arbiter must
strictly comply with 2 reglementary
periods:

1. The petition must be filed within 60
days from knowledge of the
judgment; and
2. The petition must be filed within a
fixed period of 6 months from entry
of such judgment.
P
etitions filed beyond said
period will no longer be
entertained.

APPEAL FROM THE DECISION OF THE
NLRC:

No law allows an appeal from a
decision of the Secretary of Labor, or
the NLRC, or of a voluntary arbitrator.
In these cases, the special civil action of
certiorari, prohibition or mandamus
under Rule 65 of the Rules of Court may
be lodged with the Court of Appeals.
(St. Martins Funeral Home vs. CA)
No Motion for Reconsideration is
allowed for any order, decision
or award of a Labor Arbiter.
However a Motion for
Reconsideration of a Labor
Arbiters decision, award or
order which has all the elements
of an appeal may be treated as
appeal.
Only one Motion for
Reconsideration of the decision,
award or order of the
commission on appealed cases
before it.

ART 224. EXECUTION OF
DECISIONS, ORDER, OR AWARDS

The decision of the Secretary of
Labor, the Commission, the Bureau or
Regional Director the Labor Arbiter, the
Med-Arbiter or the Voluntary Arbitrator
shall be final and executory after 10
calendar days from receipt thereof by
the parties and shall be executory
within ten (10) years.

The foregoing may, upon its
own initiative or on motion of
any interested party, issue a
writ of execution on a
judgment within 5 years from
the date it becomes final and
executory.
An independent action is
required for the execution of the
final judgement within the next
of following 5 years [ Phil.
National Railways vs NLRC (177
SCRA740, Sept. 19, 1989)]
The immediate execution of
judgment should be undertaken
only when the monetary award
had been carefully and
accurately determined by the
NLRC and only after the
employer is given the
opportunity to be heard and to
raise objections to the
computation.

TITLE III
BUREAU OF LABOR RELATIONS


ART. 226. BUREAU OF LABOR
RELATIONS

Pursuant to E.O. 126, the NATIONAL
CONCILIATION AND MEDIATION BOARD
(NCMB) has absorbed the conciliation,
mediation and voluntary arbitration
functions of the BLR.

Jurisdiction over labor-
management problems or
disputes is also exercised by
other offices such as the DOLE
regional offices, and the Office
of the Secretary, NLRC, POEA,
OWWA, SSS-ECC, the regional
wage and productivity boards,
NWPC, and even the regular
courts over intra-corporate
disputes.
EXCLUSIVE AND ORIGINAL
JURISDICTION OF THE BLR
-to act at its own initiative or upon
the request of either or both parties on
all:
1. INTRA- union conflicts

2. INTER- union conflicts

3. all DISPUTES, GRIEVANCES OR
PROBLEMS ARISING FROM OR
AFFECTING LABOR MANAGEMENT
RELATIONS IN ALL WORKPLACES
WHETHER AGRICULTURAL OR NON-
AGRICULATURAL.

The parties may however, by
agreement, settle their
differences by submitting their
case to a voluntary arbitrator
rather than taking the case to
the BLR.

CASES WHERE THE BLR HAS NO
JURISDICTION:
Those arising from the
implementation or interpretation of
collective bargaining agreements which
shall be subject of grievance procedure
and/or voluntary arbitration.

INTRA-UNION DISPUTES refers to
any conflict between and among union
members, including grievances arising
from any violation of the rights and
conditions of membership, violation of or
disagreement over any provision of the
unions constitution and by-laws, or
disputes arising from chartering or
affiliation.

MED-ARBITER- an officer in the
regional office or bureau authorized to
hear, conciliate, and decide
representation cases or assist in the
disposition of intra or inter-union
disputes.

COVERAGE OF INTER/INTRA-UNION
DISPUTES (Sec. 1 Rule XI DO 40-03)
a. cancellation of registration of a
labor organization filed by its
members or by any other labor
organization;
b. conduct of election of union and
workers association
officers/nullification of election
of union and workers
association officers;
c. audit/accounts examination of
union or workers association
funds;
d. deregistration of CBA;
e. validity/invalidity of union
affiliation or disaffiliation;
f. validity/invalidity of
acceptance/non-acceptance for
union membership;
g. validity/invalidity of
impeachment/ expulsion of
union and workers association
officers;
h. validity/invalidity of voluntary
recognition;
i. opposition to application for
union and CBA registration;
j. violations of or disagreements
over any provision in a union or
workers association constitution
and by-laws;
k. disagreements over chartering or
registration of labor
organizations and CBAs;
l. violations of the rights and
conditions of union or workers
association membership;
m. violations of the rights of
legitimate labor organizations,
except interpretation of CBAs;
n. such other disputes or conflicts
involving the rights to self-
organization, union membership,
and collective bargaining

1. between and among
legitimate labor
organizations
2. between and among
members of a union or
workers association

EXTENDED COVERAGE (Section 2 Rule XI
DO 40-03)
Other related labor relations
disputes shall include any conflict
between a labor organization and the
employer or any individual, entity, or
group that is not a labor organization or
workers association. This includes:

1. cancellation of registration
of unions and workers
associations; and
2. a petition for interpleader

SPECIAL REQUIREMENTS AS TO THE
FILING OF CASES:
A. INVOLVING ENTIRE MEMBERSHIP

1. The complaint must be signed by
at least 30% of the entire
membership of the union and
2. It must also show exhaustion of
administrative remedies.

B. INVOLVING A MEMBER ONLY - In such
case only the affected member may
file the complaint.

Redress must first be sought
within the union itself in
accordance with its constitution
and by-laws EXCEPT under any
of the following circumstances:
a. futility of intra-union remedies
b. improper expulsion procedure
c. undue delay in appeal as to
constitute substantial injustice
d. the action is for damages
e. lack of jurisdiction of the
investigating body
f. action of the administrative
agency is patently illegal,
arbitrary, and oppressive
g. issue is purely a question of law
h. where the administrative agency
had already prejudged the
case
i. where the administrative agency
was practically given the
opportunity to act on the case but it
did not.
Imposition of fees by the union
affects the entire membership,
therefore it requires that the
complaint should be signed by at
least 30% of the membership of
the union.

INTER-UNION DISPUTES -refers to any
conflict between and among legitimate
labor organizations involving
representation questions for purposes of
collective bargaining or to any other
conflict or dispute between legitimate
labor organizations based on any
violations of their rights as labor
organizations.

EFFECTS OF FILING/PENDENCY OF
INTER/INTRA-UNION DISPUTE AND
OTHER LABOR RELATIONS DISPUTES
(Section 3 Rule XI DO 40-03)
- The rights, relationships and obligations of
the parties litigants against each other and
other parties-in-interest prior to the
institution of the petition shall continue to
remain during the pendency of the petition
and until the date of finality of the decision
rendered therein. Thereafter, the rights,
relationships and obligations of the parties
litigants against each other and other parties-
in-interest shall be governed by the decision
so ordered.
- The filing or pendency of any inter/intra-
union disputes is not a prejudicial question to
any petition for certification election and
shall not be a ground for the dismissal of a
petition for certification election or
suspension of proceedings for certification
election.

SUMMARY OF RULES ON
INTRA/INTER-UNION DISPUTES (Rule XI
DO 40-03)

MODES OF APPEAL IN INTRA/INTER-
UNION DISPUTES (Rule XI DO 40-03)
HOW (formal
requirements)
1. Under oath
2. Consist of a
memorandum of appeal
3. Based on either of
the following grounds:
a. Grave abuse of
discretion
b. Gross violation
of the Rules
4. With supporting
arguments and evidence
PERIOD Within 10 days from
receipt of decision
TO WHOM
APPEALABLE

1. Bureau of Labor
Relationsif the case
originated from the Med
Arbiter/Regional
Director
2. Sec. Of Laborif the
case originated from the
Bureau
WHERE FILED Regional Office or to
the BLR, where the
complaint originated
(records are transmitted
to the BLR or Sec.
Within 24 hours from
receipt of the
memorandum of appeal)


DETERMINATION OF EMPLOYER-
EMPLOYEE RELATIONSHIP:

WHO
1. For grounds under Sec. 1:
a. any LLO
b. member(s) thereof
specially concerned
2. For grounds under Sec. 2any
party-in-interest
WHERE
FILED
1. Regional Office that issued its
certificate of registration or
certificate of creation of
chartered local- If it involves labor
unions with independent
registrations, chartered locals,
workers association, its officers
or members
2. Directly with the BureauIf it
involves a Federation/National
Unions/Industry Unions, its
officers or members
FORMAL
REQUIRE-
MENTS
1. in writing
2. verified under oath
3. contains the following
averments
a. name, address and other
personal circumstances of the
complainant(s) or petitioner(s);
b. name, address and other
personal circumstances of the
respondent(s) or person(s)
charged;
c. nature of the complaint or
petition;
d. facts and circumstances
surrounding the complaint or
petition;
e. cause(s) of action or specific
violation(s) committed;
f. a statement that the
administrative remedies provided
for in the constitution and by-laws
-have been exhausted or
-such remedies are not
readily available to the
complainant(s) or
petitioner(s) through no fault
of his/their own or
-compliance with such
administrative remedies does
not apply to complainant(s) or
petitioner(s);
g. relief(s) prayed for;
h. certificate of non-forum
shopping; and
i. other relevant matters
- Since the BLR has the original and
exclusive jurisdiction to decide,
inter alia, all disputes, grievances or
problems arising from or affecting
labor-management relations in all
workplaces, necessarily, in the
exercise of this jurisdiction over
labor-management relations, the
Med-Arbiter has the authority,
original and exclusive, to
determine the existence of an
employer-employee relationship.
(MY San Biscuits, Inc. vs. Laguesma
G.R. No. 9511, 22 April 1991)

In cases where there is
overlapping of jurisdiction,
determine the principal issue.
The agency that has jurisdiction
thereon may decide on the
incidental issues.
ADMINISTRATIVE FUNCTIONS OF THE
BLR:
1. The REGULATION OF REGISTRATION
of the labor unions;
2. The KEEPING OF A REGISTRY of
labor unions;
3. The maintenance of a FILE OF CBAS.
ART. 227. COMPROMISE
AGREEMENTS; and
4. The maintenance of a file of all
settlements or final decisions of the
Supreme Court, Court of Appeals,
NLRC and other agencies on labor
disputes.

REQUIREMENTS:
a. must be freely entered into;
b. must not be contrary to law, morals
or public policy; and
c. must be approved by the authority
before whom the case is pending [see
discussion on article 221approval of
labor arbiter of an amicable
settlement in a case before him.
May be effected at any stage
of the proceedings and even
when there is already a final
executory judgment (2040 NCC).
Cannot be entered into when
the final judgment is already in
the process of execution.
(Jesalva vs. Bautista)





FORMAL REQUIREMENTS OF A VALID
COMPROMISE AGREEMENT:
1. in writing
2. signed in the presence of the regional
director or his duly authorized
representative.

WITH vs. WITHOUT ASSISTANCE OF
DOLE-COMPROMISE AGREEMENTS
Without assistance
of DOLE
With the
assistance of
DOLE
a.
VALIDITY/BINDING
EFFECT
- Valid and binding
upon the parties



- Valid and binding
upon the parties
b. REPUDIATION
- Can be
repudiated by the
parties by going to
the Commission

NOTE: ULP cases
are not subject to
compromise.


- Can no longer be
repudiated
becomes final and
binding upon the
parties upon
execution EXCEPT
a. in case of non
compliance
with the
compromise
agreement;
or
if there is
prima facie
evidence that the
settlement was
obtained through
fraud,
misrepresentation
, or coercion

OPTIONS WHEN COMPROMISE
AGREEMENT IS VIOLATED:
1. enforce compromise by writ of
execution
2. regard it as rescinded and insist upon
original demand.

REQUIREMENTS OF A VALID
QUITCLAIM:

1. The quitclaim must be
VOLUNTARILY ARRIVED at by the
parties;
2. It must be WITH THE ASSISTANCE of
the Bureau of Labor Standards,
Bureau of Labor Relations or any
representative of the DOLE; and
3. The CONSIDERATION MUST BE
REASONABLE (required only when
entered without the assistance of
DOLE)

Dire necessity is not an
acceptable ground for annulling
the releases, especially in the
absence of proof that the
employees were forced to
execute them. (Veloso vs. DOLE)

WAIVER OF REINSTATEMENT like
waivers of money claims, a waiver of
reinstatement must be regarded as a
personal right which must be
exercised personally by the workers
themselves. (Jag & Haggar Jeans and
Sportswear Corp. vs. NLRC)

ART 231. REGISTRY OF UNIONS
AND FILE OF COLLECTIVE
AGREEMENT

The CBA is more than a contract,
it is highly impressed with public
interest for it is an essential
instrument to promote industrial
peace.
Must be filed directly with the
Bureau or the Regional Offices of
DOLE within thirty (30) days
from execution.
An UNREGISTERED CBA does not
bar certification election
[contract bar rule will not apply
in the absence of registration.
[See discussion on Arts. 253 &
253-A]

Registration of the CBA is not a
requisite for its validity.

LIBERTY FLOUR MILLS EMPLOYEES v.
LFM, INC. 180 SCRA 668
The certification of the CBA by the
BLR is not required to put a stamp of
validity to such contract. Once it is duly
entered into and signed by the parties, a
CBA becomes effective as between the
parties regardless of whether or not the
same has been certified by the BLR.


ART 232. PROHIBITION ON
CERTIFICATION ELECTION

CONTRACT BAR RULE: provides that
while a valid and registered CBA is
subsisting for a fixed period of 5 years ,
the Bureau is not allowed to hold an
election contesting the majority status
of the incumbent union except during
the sixty (60) day period immediately
prior to its expiration, which period is
called the freedom period.

The existence of the CBA bars the
holding of an inter-union electoral
contest and the filing of the Petition for
Certification Election except within the
freedom period.

PURPOSE: to minimize union
politicking until the proper time
comes.

ART 233. PRIVILEGED
COMMUNICATION

PRIVILEGED COMMUNICATION: Any
statement of such privacy that the law
exempts the person receiving the
information from the duty to disclose it.

Information and statements made at
conciliation proceedings shall be treated
as privileged communication and shall
not be used as evidence in the
Commission.

Conciliators and similar officials
may not testify in any court or
body regarding any matters
taken up at conciliation
proceedings conducted by them.













TITLE IV

LABOR ORGANIZATIONS

CHAPTER I

REGISTRATION AND CANCELLATION


ART. 234. REQUIREMENTS OF
REGISTRATION
LABOR ORGANIZATION - Any union or
association of employees which exists in
whole or in part for the purpose of:
a. collective bargaining or
b. of dealing with employer
concerning terms and conditions of
employment.
It is the agent of the
employees of an appropriate
bargaining unit.

PRINCIPLE OF AGENCY APPLIED

Principal employees
Agent local/chapter
Agent of agent federation

LEGITIMATE LABOR ORGANIZATION or
LABOR UNION

any labor organization duly registered
with the Department of Labor and
Employment, and Bureau of Labor
Relations.

Not every legitimate labor
organization can act as
bargaining representative and be
certified as such. This is true
only of a union that has won in
certification election or has been
voluntarily recognized by the
employer.


PURPOSE OF FORMATION OF LABOR
UNIONS: for securing a fair and just
wages and good working conditions for
the laborers; and for the protection of
labor against the unjust exactions of
capital


MODES OF ACQUIRING LEGITIMACY FOR
LABOR ORGANIZATIONS

1. Registration with the BLR
(Independent Union)
2. Affiliation with a legitimate labor
federation

[REGISTRATION REQUIREMENTS FOR
LABOR ORGANIZATIONS (as amended by
DO 40-03)]
3. Application for registration
4. Attachments
name of the applicant labor
union, its principal address;
the name of its officers and their
respective addresses;

o approximate number of
employees in the bargaining
unit where it seeks to
operate, with a statement
that it is not reported as a
chartered local of any
federation or national union;

o the minutes of the
organizational meeting(s)
and the list of employees
who participated in the said
meeting(s);

o the name of all its members
comprising at least 20% of
the employees in the
bargaining unit;

o the annual financial reports
if the applicant has been in
existence for one or more
years, unless it has not
collected any amount from
the members, in which case
a statement to this effect
shall be included in the
application;

o the applicants constitution
and by-laws, minutes of its
adoption or ratification, and
the list of the members who
participated in it. The list of
ratifying members shall be
dispensed with where the
constitution and by-laws was
ratified or adopted during
the organizational meeting.
In such a case, the factual
circumstances of the
ratification shall be recorded
in the minutes of the
organizational meeting(s).
(These are called reportorial
requirements)

The application for registration of
labor unions xxx, shall be certified under
oath by its Secretary or Treasurer, as the
case may be, and attested by its
president.

The attachments must now be in
one(1) original copy and two (2)
duplicate copies which shall accompany
the application or notice, and submitted
to the Regional Office or the Bureau.

A prescribed registration fee must be
paid before the issuance of the
certificate of registration

Where to file application for
registration:

1. For registration of independent labor
unions, chartered locals, workers
associations shall be filed with the
Regional office where the applicant
principally operates. It shall be
processed by the Labor Relations Division
at the Regional office.

2. Applications for registration of
federations, national unions or workers
associations operating in more than one
region shall be filed with the bureau or
the regional offices, but shall be
processed by the bureau.
MINISTERIAL DUTY OF THE BLR
COMPELLABLE BY MANDAMUS- to
review the application for registration
and not the issuance of a Certificate of
Registration.

- After a labor organization had filed
the necessary papers and documents for
registration, it becomes mandatory for
the BLR to check if the requirements
under Article 234 have been sedulously
complied with. If its application for
registration is vitiated by falsification
and serious irregularities, especially
those appearing on the face of the
application and the supporting
documents, a labor organization should
be denied recognition as a legitimate
labor organization. (Progressive
Development Corporation-Pizza Hut vs.
Laguesma et al., GR No. 115077, April
18, 1997)

PURPOSE OF REGISTRATION -
Registration with the BLR is the
operative act that gives rights to a labor
organization.

It is the fact of being registered
with the DOLE that makes a
labor organization legitimate in
the sense that it is clothed with
legal personality to claim
representational and bargaining
rights enumerated in Article 242
or to strike or picket under
Article 263.
The requirement of registration
is NOT a curtailment of the
right to association. It is merely
a condition sine qua non for the
acquisition of legal personality
by labor organizations,
associations or unions and the
possession of the rights and
privileges granted by law to
labor organizations.
A valid exercise of police power
since the activities in which
labor organizations, associations,
or unions of workers are engaged
affect public interest, which
should be protected. (PAFLU vs.
Sec. Of Labor)

FEDERATION- any labor organization
with at least 10 locals/chapters or
affiliates each of which must be duly
certified or recognized as the sole and
exclusive collective bargaining agent of
the employer they represent.

REQUIREMENTS BEFORE A
FEDERATION CAN BE ISSUED A
CERTIFICATE OF REGISTRATION:

Aside from the application, which
must be accompanied with the
requirements for registration of a labor
registration, the application should also
be accompanied by the following:
1. Proof of affiliation of at least 10
locals or chapters, each of which
must be a duly recognized sole and
exclusive collective bargaining agent
in the establishment or industry in
which it operates, supporting the
registration of such applicant
federation or national union;
2. The names and addresses of the
companies where the locals or
chapters operate and the list of all
the members in each company
involved.

A LOCAL UNION MAY AFFILIATE WITH
A FEDERATION - The procedure of
affiliation would depend on whether the
union is independently registered or not.

REQUIREMENTS OF AFFILIATION (as
amended by DO 40-03)
1. Report of affiliation of
independently registered labor union
2. Attachments:
a. resolution of the labor unions
board of directors approving the
affiliation;
b. minutes of the general
membership meeting approving
the affiliation;
c. the total number of members
comprising the labor union and
the names of members who
approved the affiliation;
d. the certificate of affiliation
issued by the federation in favor
of the independently registered
labor union; and
e. written notice to the employer
concerned if the affiliating union
is the incumbent bargaining
agent.

A union of supervisory employees may
affiliate with a national federation of
labor organizations of rank and file
employees PROVIDED that:

a. the federation is not actively
involved in union affairs in the
company; and
b. the rank and file employees are not
directly under the control of the
supervisors
ONCE AFFILIATED, A LOCAL
UNION MAY DISAFFILIATE FROM THE
FEDERATION.








INDEPENDENTLY
REGISTERED


UNREGISTERED
INDEPENDENT
REGISTRATION
CHARTERING

Obtained
by union
organizers
in an
enterprise
through
their own
action

A duly
registered
federation/n
ational union
issues a
charter to a
union in an
enterprise
and registers
the charter
with the
regional
office or the
BIR.

Indepen-
dent
union

Chapter/local

With legal
personalit
y of its
own

No legal
personality of
its own as
long as it has
not availed
itself of
independent
registration.

Applicatio
n for
registratio
n is filed
with and
will be
acted
upon by
the DOLE
regional
office
where the
applicant
s principal
office is
located.

Charter
certificate is
issued by a
federation or
national
union is filed
with the
regional
office or BLR
with 30 days
after the
issuance of
the charter
certificate.

a.HOW TO
AFFILIATE


-by signing a contract of
affiliation

-by application of the union
with the federation for the
issuance of a charter
certificate to be submitted to
the Bureau accompanied by
the following:
a. Copies of its constitution
and by-laws
b. Statement of the set of
officers and
Books of accounts, all of
which must be certified by
the Secretary/Treasurer and
attested to by the President.
In such case, the union
becomes a local chapter of
the Federation.


b. EFFECT OF
DISAFFILIATION
TO THE UNION
[local]


- would not affect its being a
legitimate labor organization
and therefore it would
continue to have legal
personality and to possess all
the rights and privileges of a
legitimate labor organization.

upon severance, it would
cease to be a legiti mate labor
organization and would no
longer have legal personality
and the rights and privileges
granted by law to legitimate
organization, unless the local
chapter is covered by a duly
registered collective
bargaining agreement. In the
latter case, the local or
chapter will not lose its legal
personality until the
expiration of the CBA. After
the CBA expires it will lose its
legal personality unless it
registers as an independent
union.


c. EFFECT OF
DISAFFILIATION
TO THE CBA


- an existing CBA would
continue to be valid as the
labor organization can
continue administering the
CBA


The CBA would continue to be
valid. The local chapter will
not lose its personality until
the expiration of the CBA.
After the CBA expires the
local union looses its
personality, unless it registers
anew.

d. ENTITLEMENT
TO UNION DUES
AFTER
DISAFFILIATION

-labor organization is entitled
to the union dues and not the
federation from which the
labor organization
disaffiliated.
- union dues may no longer
be collected as there would
no longer any labor union that
is allowed to collect such
union dues from the
employees.
Note: Follow the principle of
agency between federation
and local.
Principal employees
Agent local/chapter
Agent of agent federation


WHEN TO DISAFFILIATE

GENERAL RULE: A labor union may
disaffiliate from the mother union to
form an independent union only during
the 60-day freedom period
immediately preceding the expiration of
the CBA.

EXCEPTION: DISAFFILIATION BY
MAJORITY

This happens when there is a
substantial shift in allegiance on
the part of the majority of the
members of the union. In such
a case, however, the CBA
continues to bind the members
of the new or disaffiliated and
independent union up to the
CBAs expiration date.

LIMITATION: disaffiliation should be in
accordance with the rules and
procedures stated in the Constitution
and by-laws of the federation.

A prohibition to disaffiliate in
the Federations constitution or
by-laws is validintended for its
own protection.

REVOCATION OF CHARTER BY THE
FEDERATION - by serving the
local/chapter a verified notice of
revocation, copy furnished the Bureau on
the ground of disloyalty or such other
grounds as may be specified in its
constitution or by-laws.



The revocation shall divest the
local chapter of its legal
personality upon receipt of the
notice by the Bureau, unless in
the meantime the local chapter
has acquired independent
registration. (Rule VIII Section 5
of the IRR)

WORKERS ASSOCIATION: Association
of workers for the mutual aid and
protection of its members or for any
legitimate purpose other than collective
bargaining.

ART. 236. DENIAL OF REGISTRATION;
APPEAL

- Decisions of the BLR denying the
registration of a labor organization is
appealable to the Secretary of Labor
within 10 calendar days from receipt of
the decision, on grounds of:

a. grave abuse of discretion; or
b. gross incompetence
- even before the onset of the
freedom period, disaffiliation may
still be carried out, but such
disaffiliation must be effected by a
majority of the union members in
the bargaining unit.

decision of the regional office or the
bureau denying the application for
registration shall be:
1. in writing
2. stating in clear terms the reason for
the decision
3. applicant union must be furnished a
copy of said decision
ART. 238. CANCELLATION OF
REGISTRATION; APPEAL

The certificate of registration of
any legitimate labor organization shall
be cancelled by the BLR if it has reason
to believe, after due hearing, that the
said labor organization no longer meets
one or more of the requirements
prescribed by law.

GROUNDS FOR CANCELLATION:
1. Failure to comply with any of the
requirements prescribed under
Arts. 234 (requirements for
registration of a labor union) &
237 (addl. reqts. federation
registration) of the Code.

2. Violation of any of the provisions
of Art. 239 (grounds for
cancellation of union
registration) of the Code

3. Commission of any of the acts
enumerated under Art. 241
(rights and conditions of
membership) of the code- No
petition for cancellation based
on this ground 0may be granted
unless supported by at least 30%
of all the members of the
respondent labor organization or
workers association.

A pronouncement as to
the illegality of the
strike is not within the
meaning of Art. 239 of
the Code which provides
for the grounds for
cancellation of union
registration.













MODES OF APPEAL






























EFFECT OF CANCELLATION OF
REGISTRATION IN THE COURSE OF
PROCEEDINGS
- Where a labor union is a party
in a proceeding and later it loses its
registration permit in the course or
during the pendency of the case, such
union may continue as a party without
need of substitution of parties, subject
however to the understanding that
whatever decision may be rendered
therein will be binding only upon those
members of the union who have not
signified their desire to withdraw from
the case before its trial and decision on
the merits. [Principle of Agency
appliedthe employees are the
principals, and the labor organization is
merely an agent of the former,
consequently, the cancellation of the
unions registration, would not deprive
the consenting member-employees of
their right to continue the case as they
are the considered as the principals]
DENIAL or CANCELLATION BY:

A. Regional Office
transmit records within 24
hours from receipt of Memo of
Appeal
BUREAU decides within 20
days from receipt of records
SUPREME COURT- Rule 65
B. Bureau
transmit records within 24
hours from receipt of memo
of appeal
SEC. OF DOLE decides within
20 days from receipt of
records
SUPREME COURT- Rule 65

*Appeal by memo of appeal
within 10 days from receipt of
notice.
GROUNDS:
1. Grave abuse of discretion
2. Violation of rules as
amended.


ART 239. GROUNDS FOR
CANCELLATION OF UNION
REGISTRATION

GROUNDS FOR CANCELLATION OF
UNION REGISTRATION:

A. FRAUDULENT ACTS

1. Misrepresentation, False statement
or Fraud in connection with
[RATIFICATION OF CONSTI/BY-
LAWS]:

a. the ADOPTION OR
RATIFICATION of the
constitution and by-laws or
amendments thereto,
b. the MINUTES of ratification,
and
c. the LIST OF MEMBERS who took
part in the ratification.

2. Misrepresentation, false statement
or fraud in connection with the
[ELECTION PAPERS]:

a. ELECTION of officers,
b. MINUTES of the election of
officer and the list of voters, or
c. failure to submit these
documents together with the list of
the newly elected/appointed
officers and their postal addresses
within 30 days from election

B. INACTION OR OMISSION

1. Failure to submit the following
documents [RATIFICATION OF
CONSTI/BY-LAWS]:
a. the adoption or ratification of
the constitution and by-laws or
amendments thereto,
b. the minutes of ratification, and
the list of members who took
part in the ratification
*Within 30 days from adoption or
ratification of the constitution and
by-laws or amendments thereto.
2. Failure to submit the Annual
Financial report to the Bureau within
30 days after the closing of every
fiscal year and misrepresentation,
false entries and fraud in the
preparation of the financial report
itself;
3. Failure to submit a LIST OF
INDIVIDUAL MEMBERS of the Bureau
once a year or whenever required by
the Bureau; and
4. Failure to comply with the
REQUIREMENTS UNDER ARTICLES
237.

C. UNLAWFUL ACTS
1. Acting as a labor contractor or
engaging in the CABO SYSTEM, or
otherwise engaging in any activity
prohibited by law;
2. Entering into collective bargaining
agreements which provide terms and
conditions of employment below
minimum standard established by
law [CBA-BELOW MINIMUM
STANDARDS]; (Sweetheart
Agreements)
3. Asking for or ACCEPTING
ATTORNEYS FEES OR NEGOTIATION
FEES from the employers;
4. Other than for mandatory activities
under this Code, checking off special
assessment or any other fees without
duly signed individual written
authorization of the members
[UNLAWFUL ASSESSMENTS];

CANCELLATION OF REGISTRATION
A. FOR:
1. Legitimate individual labor
union.
2. Chartered local
3. Workers association

WHERE TO FILE
Regional Director who has
jurisdiction over the place
where respondent principally
operates (30 days to decide).

WHO MAY FILE
- Any party in interest, if ground
is:
a. Failure to comply with any of
the requirements under Arts.
234, 237 and 238 LC
b. Violation of any provision under
Art. 239, LC
Take note of the cancellation
proceedings if violation is D and
J of Art. 239, LC

REPORTING REQUIREMENTS OF LABOR
UNIONS AND WORKERS ASSOCIATIONS
(Rule V DO 40-03)
- It shall be the duty of every legitimate
labor union and workers association to
submit to the Regional Office or Bureau
which issued its certificate of
registration or certificate of creation of
chartered local, as the case may be, two
(2) copies of each of the following
documents:
a. any amendment to its
constitution and by-laws and the
minutes of adoption or
ratification of such amendments,
within 30 days from its adoption
or ratification;
b. annual financial reports within
30 days after the close of each
fiscal or calendar year;
c. updated list of newly-elected
officers, together with the
appointive offices or agents who
are entrusted with the handling
of funds, within 30 days after
each regular or special election
of officers, or from the
occurrence of any change in the
officers of agents of the labor
organization or workers
association
d. updated list of individual
members of chartered locals,
independent unions and workers
associations within 30 days after
the close of each fiscal year; and
e. updated list of its chartered
locals and affiliates or member
organizations, CBAs executed
and their effectivity period, in
the case of federations or
national unions, within 30 days
after the close of each fiscal
year, as well as the updated list
of their authorized
representatives, agents or
signatories in the different
regions of the country.

RULES ON ADMINISTRATIVE
CANCELLATION OF CERTIFICATE OF
REGISTRATION OF LLOs DUE TO NON-
COMPLIANCE WITH THE REPORTORIAL
REQUIREMENTS:

WHEN
PROPER

Failure to comply with its
legal duty to submit the
documents required to
be submitted under Rule
V of DO 40-03 for 5
consecutive years

WHO MAY
FILE THE
PETITION

1. Motu propio by the
Bureau
2. Any party-in-interest

THREE-
NOTICE
REQUIRE
MENT
1
st
Notice
Bureau shall send by
registered mail with return
card notice for compliance
indicating the documents it
failed to submit and the
corresponding period in
which they were required,
with notice to comply with
the said reportorial
requirements and to submit
proof thereof to the Bureau
within 10 days from receipt
thereof
2
nd
Notice
Where no response is
received by the Bureau
within 30 days from the
release of the 1
st
notice,
another notice for
compliance shall be made
by the Bureau, with warning
that failure on its part to
comply with the reportorial
requirements within the
time specified shall cause
the continuation of the
proceedings for the
administrative cancellation
of its registration
3
rd
Notice
Where no response is again

B. FOR:
1. Federations
2. National or Industry unions
3. Trade union centers

WHERE TO FILE
- Bureau Director ( 30 days to
decide)

WHO MAY FILE
- Only the members of the
Labor Organization concerned
if grounds are actions
involving violations of Art.
241, subject to the 39% rule

received by the Bureau
within 30 days from release
of the 2
nd
notice, the
Bureau shall cause the
publication of the notice of
cancellation of registration
of the labor organization in
2 newspapers of general
circulation.

When no response is
received by the Bureau
within 30 days from the
date of publication or when
the Bureau has verified the
dissolution of the labor
organization, it shall order
the cancellation of
registration of the labor
organization AND cause its
de-listing from the roster of
legitimate labor
organizations


CHAPTER II

RIGHTS AND CONDITIONS OF
MEMBERSHIP IN A LABOR
ORGANIZATION

ART. 241. RIGHTS AND CONDITIONS
OF MEMBERSHIP IN A LABOR
ORGANIZATION

GENERAL GROUPINGS OF THE
RIGHTS OF THE UNION MEMBERS:

1. Political right - the right to vote and
be voted for, subject to lawful
provisions on qualifications and
disqualifications.

2. Deliberative and Decision-Making
Right - the right to participate in
deliberations on major policy
questions and decide them by secret
ballot.

3. Rights Over Money Matters - the
right of the members:

a. against imposition of excessive
fees;
b. right against unauthorized
collection of contributions or
unauthorized disbursements;
c. to require adequate records of
income and expenses;
d. to access financial records;
e. to vote on officers
compensation;
f. to vote on special assessment;
g. to be deducted a special
assessment only with the
members written authorization.

4. Right to Information - the right to
be informed about:
a. the organizations
constitution and by- laws,
b. the collective bargaining
agreement, and labor laws.

Any violation of the above rights
and conditions of membership
shall be a ground for
cancellation of union registration
or expulsion of an officer from
office, whichever is appropriate.
At least 30% of all the members
of the union or any member or
members specifically concerned
may report such violation to the
Bureau.

PERSONS WHO ARE PROHIBITED
FROM BECOMING MEMBERS/OFFICERS
OF A LABOR ORGANIZATION UNDER THE
LABOR CODE (see also notes under Art.
243 on persons who are not granted the
right to self-organization):

1. Subversives or those engaged in
subversive activities [Art.241
(e)]
2. Persons who have been convicted
of a crime involving moral
turpitude shall not be eligible for
election as union officer or for
appointment to any position in the
union. [Art. 241 (f)]

In general, a union is free to
select its own members, and no
person has an absolute right to
membership in a union.

LIMITATIONS [see discussion on union
security arrangements under Art. 248]:

a. The labor org. cannot compel
employees to become members of
their labor organization if they are
already member of rival union.

b. persons mentioned in Art. 241(e)
[subversives] of the labor code
are prohibited from becoming a
member a labor organization.

c. members of religious organization
whose religion forbade
membership in labor organization
could not be compelled into union
membership.

REQUIREMENTS IN MAKING SPECIAL
ASSESSMENTS or OTHER
EXTRAORDINARY FEES (Art. 241 [n]):

1. there must be a WRITTEN
RESOLUTION
2. he resolution must have BEEN
APPROVED BY A MAJORITY of all
the members

3. the approval must be AT A GENERAL
MEMBERSHIP MEETING DULY called
for that purpose

The secretary of the organization
shall record the minutes of the
meeting including:

a. the list of all members present,
b. the votes cast, and
c. the purpose of the assessment or
fees

The record shall be attested by
the President.

Substantial compliance to the
aforementioned procedure is not
enoughthe requirements must
be strictly complied with in view
of the fact that the special
assessment will diminish the
compensation of union members.
(Palacol et. al vs. Ferrer-Calleja
et. al)

CHECK-OFF - a method of deducting
from an employees pay at prescribed
period, the amounts due to the union for
fees, fines or assessments.


NATURE AND PURPOSE OF CHECK-OFF:
to facilitate the collection of
dues necessary for the unions
life and sustenance.

Union dues are the lifeblood of
the union.

REQUIREMENTS WITH REGARD TO
CHECK-OFFS (Art. 241 [o]):

- NO special assessment, attorneys
fees, registration fees or any other
extraordinary fees may be checked off
from any amount due an employee
WITHOUT an individual written
authorization duly signed by the
employee.

The authorization should specifically
state the:

a. amount
b. purpose and the beneficiary
of the deduction.

Jurisdiction over check-off disputes is
with the Regional Director of the DOLE,
not the Labor Arbiter

UNION DUES VS. AGENCY FEE
UNION DUES AGENCY FEE
a. DEDUCTED FROM
- members of a
union for the
payment of union
dues.
- non-members of the
bargaining agent
(union) for the
enjoyment of the
benefits under the
CBA.
b. CONSENT
- May not be
deducted from the
salaries of the union
members without
the written consent
of the workers
affected
- May be deducted
from the salary of
employees without
their consent.

Agency fee cannot be imposed on
employees already in the service and are
members of another union. If a closed
shop agreement cannot be applied to
them, neither may an agency fee, as a
lesser form of union security, be
imposed to them. (NABAILU vs. San
Miguel Brewery Inc)


EXCEPTION TO THE REQUIREMENT
OF INDIVIDUAL WRITTEN
AUTHORIZATION:

1. For mandatory activities provided
under the Code; and

2. When non-members of the union
avail of the benefits of the CBA.

- said non-members may be assessed
union dues equivalent to that paid by
members

- only by a Board Resolution
approved by majority of the members in
a general meeting called for the purpose

Will the employees-members of
another union not be considered as
free riders?

No since when the union bids to be the
bargaining agent, it voluntarily assumes
the responsibility of representing all
employees in the appropriate bargaining
unit.

SPECIAL ASSESSMENT vs. CHECK-OFF
SPECIAL
ASSESSMENTS
CHECK-OFF
a. HOW APPROVED
-by written resolution
approved by majority
of all the members at
a meeting duly called
for that purpose

(Union Dues)
-by obtaining the
individual written
authorization duly
signed by the
employee which must
specify:
a. amount
b. purpose and
c. beneficiary of
the deduction.
b. EXCEPTION TO
SUCH REQUIREMENT
-no exceptionwritten
resolution is
mandatory at all
instances.
(Agency Fees)
-not necessary if:
1. For mandatory
activities provided
under the Code; and
2. When non-members
of the union avail of
the benefits of the
CBA. Said non-
members may be
assessed agency fees
equivalent to that
paid by members only
by a Board Resolution
approved by majority
of the members in a
general meeting
called for the
purpose.

CHAPTER III

RIGHTS OF LEGITIMATE LABOR
ORGANIZATIONS


ART. 242. RIGHTS OF LEGITIMATE
LABOR ORGANIZATIONS

RIGHTS OF A LEGITIMATE LABOR
ORGANIZATION [USERFOE]:

1. Undertake activities for benefit of
members
2. Sue and be sued
3. Exclusive representative of all
employees
4. Represent union members
5. Furnished by employers of audited
financial statements
6. Own properties
7. Exempted from taxes


TITLE V

COVERAGE

ART. 243. COVERAGE AND
EMPLOYEES RIGHT TO SELF
ORGANIZATION

PERSONS/EMPLOYEES ELIGIBLE TO
JOIN A LABOR ORGANIZATION FOR
PURPOSES OF COLLECTIVE
BARGAINING:

1. All persons employed in
commercial, industrial and
agricultural (CIA) enterprises, and

2. In religious, charitable, medical or
educational (RCME) institutions
whether operating for profit or not

PERSONS/EMPLOYEES ELIGIBLE TO
JOIN A LABOR ORGANIZATION FOR
MUTUAL AID AND PROTECTION
(AIRSIW):
1. Ambulant,
2. Intermittent,
3. Rural,
4. Self-employed people
5. Itinerant workers and
6. Workers without any definite
employers,
PERSONS/EMPLOYEES WHO ARE NOT
GRANTED THE RIGHT TO SELF-
ORGANIZATION: (HEMACEN)

1. High-level government employees
(E.O. 180 Sec. 3) (MANAGERIAL
GOVERNMENT EMPLOYEES)

2. Employees of international
organizations with immunities (ICMC vs.
Calleja)

3. Managerial employees
whose functions are normally
considered as policy-making or
managerial
whose duties are of a highly
confidential or highly technical
in nature (212 LC)

4. Members of the Armed Forces of the
Philippines, including police officers,
policemen, firemen and jail guards
(E.O. 180 Sec. 4);

5. Confidential employees (Metrolab
vs. Confesor)

6. Employees of cooperatives who are
members (Benguet Elec. Coop. vs
Calleja)

7. Non-Employees (Rosario Bros. vs
Ople)

Foreigners validly working in the
Philippines [with permit from DOLE]
can form labor organizations, provided
the same right to form, join or assist in
the formation of labor unions is also
given to Filipinos in their country of
origin. This embodies the principle of
reciprocity.

MAY SECURITY GUARDS FORM A LABOR
ORGANIZATION?
YES. 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. (Meralco
vs. Secretary of Labor)

EXTENT OF THE RIGHT TO SELF-
ORGANIZATION
1. To form, join and assist labor
organizations for the purpose of
collective bargaining through
representatives of their own choosing
and
2. To engage in lawful concerted
activities for the same purpose- for
their mutual aid and protection.

ART. 244. RIGHTS OF EMPLOYEES IN
THE PUBLIC SERVICE

THE FOLLOWING ARE CONSIDERED
NEGOTIABLE IN GOCCs WITH ORIGINAL
CHARTER:
1. schedule of vacation and other
leaves
2. work assignment of pregnant women
GOVERNMENT
OWNED OR
CONTROLLED
CORPORATIONS WITH
AN ORIGINAL
CHARTER
GOVERNMENT
OWNED OR
CONTROLLED
CORPORATIONS
WITHOUT
ORIGINAL
CHARTER
a. LAW
- Employees cannot stage
strikes since they are
governed by the Civil
Service Law. They are
enjoined by Civil Service
Memorandum Circular
No. 6, under pain of
administrative sanctions
from staging strikes,
demonstrations, mass
leaves, walkouts and
other concerted
activities.

- The GOCC is
created under
Corporation Code,
then employees are
covered by the Labor
Code. Therefore
the employees have
the same rights as
those as employees
of private
corporations, one of
which is the right to
strike.
b. BARGAINING RIGHTS
- Corporations with
original charters
cannot bargain with
the government
concerning the terms
and conditions of
their employment.
However, they can
negotiate with the
government on those
terms and conditions
of employment which
are not fixed by law.
Thus, they have
limited bargaining
rights.


- The GOCC is
created under
Corporation Code,
being governed by the
Labor Code, they can
bargain with the
government
concerning the terms
and
conditions of
their employment.
Thus, they have
unlimited bargaining
rights.
c.PURPOSE OF
ORGANIZATION
- Can only form, join or
assist labor organization
for purposes not contrary
to law.

- Can form, join or
assist labor
organization for
purposes of CBA, etc.
3. personnel growth and development
4. communication system lateral and
vertical
5. provision for protection and safely
6. provision for facilities for
handicapped personnel
7. provision for first-aid medical
services for married women
8. annual medical/physical examination
9. recreational, social, athletic and
cultural activities and facilities
(Rules implementing WO 180)

THE FOLLOWING ARE CONSIDERED
NOT NEGOTIABLE:

1. Those which require appropriation of
funds, such as:

a. increase in salary
emoluments and other
allowance not presently
provided for by law
b. facilities requiring capital
outlays
c. car plan
d. provident fund
e. special hospitalization,
medical and dental services
f. rice/sugar/other subsidies
g. travel expenses
h. increase in retirement
benefits

2. Those that involve the exercise of
management prerogatives, such as:

a. appointments
b. promotion
c. assignments/details
d. reclassification/upgrading of
position
e. revision of compensation
structure
f. penalties imposed as a result
of disciplinary actions
g. selection of personnel to
attend seminar, trainings,
study grants
h. distribution of work load
i. external communication
linkages
Government employees and
employees of government-owned
and controlled corporations with
original charters may bargain,
however, such bargaining power
is limited.

NOTE: The Public Sector Labor
Management Council (PSLMC), created
by E.O. 180 has jurisdiction to hear
charges of ULP filed by government
employees against their employer.

REASONS WHY EMPLOYEES IN GOCCs
INCORPORATED UNDER THE
CORPORATION CODE ARE ALLOWED TO
ORGANIZE:
1. they are not involved in public
service
2. terms of employment are not fixed
by law
3. they are governed by the provisions
of the Labor Code not by the Civil
Service Law

ART. 245. INELIGIBILITY OF
MANAGERIAL EMPLOYEES TO JOIN ANY
LABOR ORGANIZATION; RIGHT OF
SUPERVISORY EMPLOYEES.

MANAGERIAL EMPLOYEE - one who is
vested with powers or prerogatives to
lay down and execute management
policies and /or to hire, transfer,
suspend, lay-off, recall, discharge,
assign or discipline employees.

MANAGERIAL EE UNDER LS AND LR
Managerial
Employees under
Labor Standards

Managerial
Employees
under Labor
Relations
a. POWERS/DUTIES
- primary duty consists
of the management of
the establishment in
which they are
employed or of a
department or
subdivision

- See definition
above
b. EXTENT
- includes the officers
and members of the
managerial staff

- does not include
the managerial
staff since they are
classified as
supervisory
employees [who
may/may not be
eligible to join a
labor union with
the rank and file
employees]
c. PURPOSE OF
DEFINITION
- to determine w/n
certain employees are
covered by Book III of
the LC on Conditions of
Employment.
- to determine an
employees
eligibility in
joining/forming a
labor union.

Reason for ineligibility in the
collective bargaining process,
managerial employees are the alter ego
of the employers and thus they are
supposed to be on the side of the
employer to act as its representatives,
and to see to it that its interests are
well protected. The employer is not
assured of such protection if these
employees are union members.
In the same manner, the labor
union might not be assured of
their loyalty to the union in
view of the evident conflict of
interest.
The union can also become
company-dominated with the
presence of managerial
employees in Union Membership
(Bulletin Publishing Co. Inc. vs.
Hon. Augusto Sanchez).

SUPERVISORY EMPLOYEES - those
who, in the interest of the employer,
effectively recommend such managerial
actions if the exercise of such authority
is not merely routinary or clerical in
nature but requires the use of
independent judgment.

MAY SUPERVISORY EMPLOYEES FORM,
ASSIST, JOIN A LABOR ORGANIZATION?

YES, on their own and NOT with the
rank-and-file employees (RA 6715).

The TEST IS: Do they exercise
independent judgment which is
not subject to evaluation of
other department heads/other
superiors? If in the affirmative,
then they may-must form a labor
organization of their own
[separate from the rank and file
employees]
If their responsibilities do not
inherently require the exercise
of discretion and independent
judgment [or merely
routinary/clerical in nature]
then they may join the union
composed of the rank and file
employees.

NOTE: It is the nature of the employees
functions and not the nomenclature or
title given to his job which determines
whether he has a rank and file or
managerial status. (Engineering
Equipment, Inc. vs. NLRC)

MAY THEY AFFILIATE WITH A
FEDERATION OF LABOR ORGANZATIONS
OF RANK AND FILE EMPLOYEES?

YES. Provided that:
a. the federation is not actively
involved in union affairs in the
company; and
b. the rank and file employees are
not directly under the control of
the supervisors (Adamson vs.
Adamson)

EFFECT OF HAVING MIXED
MEMBERSHIP A union whose
membership is a mixture of the
supervisors and the rank and file is not
and cannot become a legitimate labor
organization. It cannot petition for a
certification election, much less ask to
be recognized as the bargaining
representative of employees.

CONFIDENTIAL EMPLOYEES - by the
very nature of their functions, they
assist and act in a confidential capacity
to, or, have access to confidential
matters of persons who exercise
managerial functions in the field of
labor relations. Therefore, the rationale
behind the ineligibility of managerial
employees to form, assist or join a labor
union equally applies to them. (Philips
Industrial Devt Inc. Vs. NLRC)

- they are entrusted with confidence on
delicate matters, or with the custody,
handling, or care and protection of the
employers property. Under the
doctrine of necessary implication,
confidential employees are similarly
disqualified under Article 245. (Republic
Planters Bank vs. Torres)
NOTE: The phrase in the field of labor
relations is important. It stresses labor
nexus, i.e., confidentiality of the
position is related or linked to labor
relations matters.
Access to information which is
regarded by the employer to be
confidential from the business
standpoint, such as financial
information or technical trade
secrets, will not render an
employee a confidential
employee. (SMC Supervisors &
Exempt Union vs. Hon.
Laguesma, et al.)
Confidentiality is not a matter of
official rank, it is a matter of job
content and authority. It is not
measured by closeness to or
distance from top management,
but by the significance of the
jobholders role in the pursuit of
corporate objectives and
strategies.
Every managerial position is
confidential because one does
not become a manager without
having gained the confidence of
the appointing authority. But
not every confidential employee
is managerial; he may be a
supervisory or even a rank-and-
file employee.


ART. 246. NON-ABRIDGEMENT OF
THE RIGHT TO SELF-ORGANIZATION

THE RIGHT TO SELF-ORGANIZATION
SHALL NOT BE ABRIDGED MEANS:

It shall be unlawful for any person to:

a. restrain,
b. coerce,
c. discriminate against, or
d. unduly interfere

- with employees and workers in their
exercise of the right to self-organization.

Any act intended to weaken or
defeat the right is regarded by
law as an offense, which is
technically called unfair labor
practice.
TITLE VI

UNFAIR LABOR PRACTICES

CHAPTER I

CONCEPT


ART. 247. UNFAIR LABOR PRACTICES

NATURE OF UNFAIR LABOR
PRACTICES:

1. VIOLATE THE CONSTITUTIONAL
RIGHT of workers and employees to
self-organization;
2. 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
3. DISRUPT INDUSTRIAL PEACE; and
4. hinder the promotion of healthy and
stable labor-management relations
and mutual respect [LABOR-MNGT
RELATIONS-UNSTABLE];

2 ELEMENTS OF UNFAIR LABOR
PRACTICE:

1. employer-employee relationship
between the offender and the
offended
2. act done is expressly defined in
the Code as an act of unfair
labor practice
3. it is now considered a criminal
offense triable by the criminal
court

NOTE: Prohibited acts are all related to
the workers' self-organizational right and
the the observance of a CBA, except Art.
248 (f) dismissing or prejudicing an
employee for giving testimony under the
Code.

ULP has a technical meaning.
It is a practice unfair to labor,
although the offender may either
be an employer or a labor
organization
It refers to acts opposed to
workers' right to organize.
Without this, the act, no matter
how unfair, is not ULP.
It commonly connotes anti-
unionism.
It also refers to gross violation of
CBA provisions. Gross means the
act is malicious and flagrant.

2 ASPECTS OF UNFAIR LABOR
PRACTICE:
CIVIL CASE CRIMINAL CASE
A. PERSONS LIABLE
1. Officers and
agents of
employer or
2. Labor
organization,
officers and
agents
1. Agents and officers
who participated or
authorized or ratified
the act.
2. Agents,
representatives, members
of the government board,
including ordinary
members
B. JURISDICTION
-Labor Arbiters of
the NLRC
-MTC/RTC as the case
may be.
C. QUANTUM OF PROOF NEEDED
-substantial
evidence
-beyond reasonable doubt
[subject to prosecution
and punishment]
D. PRESCRIPTIVE PERIOD
- one year from
the accrual of the
ULP act.

- one year from the
accrual of the ULP act,
however it will be
suspended once the
administrative case has
been filed and would only
continue running once the
administrative case has
attained finality.
Final judgment in the
administrative
proceeding finding that
ULP has been committed
is a prerequisite in filing
a criminal case for ULP
NOTE: Final judgment in
the administrative
proceedings shall not be
binding in the criminal
case nor shall be
considered as an
evidence of guilt but
merely as a proof of
compliance of the
requirements prescribed
by the Code.
CHAPTER II

UNFAIR LABOR PRACTICES
OF EMPLOYERS


ART 248. ULP THAT MAY BE
COMMITTED BY AN EMPLOYER (1-10)


1. To INTERFERE WITH, RESTRAIN OR
COERCE EMPLOYEES
- in the exercise of their right
to self-organization;

INTERFERENCE

Examples:
- outright and unconcealed intimidation
- interrogation
employer must communicate to the
employee the purpose of questioning
1. assure him that no reprisal would
take place
2. obtain employee participation
voluntarily
3. must be free from employer
hostility to union organization
4. must not be coercive in nature
-intimidating expressions of opinion by
employer

TEST OF INTERFERENCE OR COERCION -
whether the employer has engaged in
conduct which it may reasonably be said
tends to interfere with the free exercise
of the employees' right and it is not
necessary that there be direct evidence
that any employee was in fact
intimidated or coerced by the
statements of threats or the employer if
there is a reasonable interference that
the anti-union conduct of the employer
does have an adverse effect of self-
organization and collective bargaining.

2. TO REQUIRE AS A CONDITION FOR
EMPLOYMENT THAT A PERSON OR
AN EMPLOYEE
- shall not join a labor
organization or
- shall withdraw from one to
which he belongs;

YELLOW DOG CONTRACT - 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. It is null
and void because:
- It is contrary to public policy
for it is tantamount to involuntary
servitude.
- It is entered into without
consideration for employees in
waiving their right to self-
organization
- Employees are coerced to sign
contracts disadvantageous to their
family.
Does Art. 248 (3) mean that an
employer cannot contract out work?
NO. Contracting out services is not ULP
per se. It is ULP only when the following
conditions exist:
1. the service contracted- out
are being performed by
union members; and
2. such contracting-out
interferes with, restrains, or
coerce employees in the
exercise of their right to
self-organization.

HOWEVER, when the contracting-out is
being done to minimize expenses, then it
is a valid exercise of management
prerogative.

3. To CONTRACT OUT SERVICES OR
FUNCTIONS BEING PERFORMED BY
UNION MEMBERS
- when such will interfere with,
restrain or coerce employees in
the
- exercise of their right to self-
organization;

4. To INITIATE, DOMINATE, ASSIST
OR OTHERWISE INTERFERE
- with the formation or
administration of any labor
organization,
- including the giving of financial or
other support to it or its
organizers or officers; (Formation
of Company Union)

5. To DISCRIMINATE IN REGARD TO
WAGES, hours of work, and other
terms and conditions of
employment in order to encourage or
discourage membership in any
labor organization.

TEST OF DISCRIMINATION- whenever
benefits or privileges given to one is not
given to the other under similar or
identical conditions when directed to
encourage or discourage union
membership (see more discussions
below)

6. To DISMISS, DISCHARGE OR
OTHERWISE PREJUDICE OR
DISCRIMINATE against an employee
- for having given or being about
to give testimony under this
Code; (The only ULP act which is
not anti-unionism)

DISCRIMINATION BECAUSE OF
TESTIMONY
TEST: the subject matter of the
testimony can be anything under
the Code
what is ULP is the employer's
retaliatory act regardless of the
subject of employee's complaint
or testimony

7. TO VIOLATE THE DUTY TO BARGAIN
COLLECTIVELY AS PRESCRIBED BY
THIS CODE;

8. TO PAY NEGOTIATION OR
ATTORNEYS FEES TO THE UNION OR
ITS OFFICERS OR AGENTS
- as part of the settlement of any
issue in collective bargaining
or any other disputes; or

9. To VIOLATE A COLLECTIVE
BARGAINING AGREEMENT.(GROSSLY!)
- the violation must be gross and
with respect to the economic
provision of the CBA (flagrant
and with malice)
All the aforementioned acts (Nos. 1-
9) must have a relation to the
employees exercise of their to self-
organization. Anti-union or anti-
organization motive must be proved
because it is a definitional element
of ULP.
RUNAWAY SHOP - an industrial plant
moved by its owners from one location
to another to escape union labor
regulations or state laws or to
discriminate against employees at the
old plant because of their union
activities.

COMPANY UNIONISM
1. Initiation of the company union
idea by:
a. outright formation by
employer or his
representatives
b. employee formation on
outright demand or
influence by employer
c. managerially motivated
formation by employees
2. financial support to the union by:
a. employer defrays union
expenses
b. pays attorney's fees to the
attorney who drafted the
Constitution or by laws of
the union
3. employer encouragement and
assistance by immediate granting
of exclusive recognition as
bargaining agent without
determining whether the union
represents majority of the
employees
4. supervisory assistance by soliciting
membership, permitting union
activities during work time or
coercing employees to join the
union by threats of dismissal or
demotion.

DISCRIMINATION FOR OR AGAINST
UNION MEMBERSHIP

TEST OF DISCRIMINATION: That the
discharge of an employee was motivated
by his union activity. Such inference
must be based on evidence, direct or
circumstantial, not upon mere suspicion.

CONSTRUCTIVE DISCHARGE - ULP
where employer prohibits employees
from exercising their rights under the
Code, on pain of discharge, and the
employee quits as a result of the
prohibition

THREE COMPONENTS OF ART. 248(5)
(DISCRIMINATION):

1. It prohibits discrimination in
terms and conditions of
employment in order to encourage
or discourage membership in the
union;
2. It gives validity to union security
agreements;
3. It allows an agency shop
arrangement whereby agency fees
may be collected from non-union
members.

SECURITY ARRANGEMENTS -
stipulations in the CBA requiring
membership in the contracting union as
a condition for employment or retention
of employment in the company.

PRINCIPLES OF UNION SECURITY
ARRANGEMENTS:
1. Protection - To shield union members
from whimsical and abusive exercise
of management prerogatives.
2. Benefits - An additional membership
will insure additional source of
income to the union in the form of
union dues and special assessment.
3. Self-preservation- It strengthens the
union through selective
acceptance of new members on the
basis of commitment and loyalty.

DIFFERENT KINDS OF UNION
SECURITY ARRANGEMENTS:
(EXCEPTIONS TO ULP ON
INTERFERENCE ON THE EMPLOYEES
EXERCISE OF THEIR RIGHT TO SELF-
ORGANIZATION)
1. CLOSED-SHOP AGREEMENT - the
employer undertakes not to employ any
individual who is not a member of the
contracting union and the said individual
once employed must, for the duration of
the agreement, remain a member of the
union in good standing as a condition for
continued employment.
- does not have any retroactivity
- apply only to new hires

EXCEPTIONS:
a. employees belonging to any
religious sect which prohibit
affiliation of their members with any
labor organization are not covered
by such agreementThe free
exercise of religious belief is
superior to contract rights
(Victoriano vs. Elizalde Rope
Workers).
b. members of the rival union are not
covered by such arrangement.

SEMI-CLOSED SHOP AGREEMENT- has
no requirement for the employee to
remain as member of the contracting
union in good standing as a condition
for continued employment.

2. UNION SHOP AGREEMENT -
stipulation whereby any person can be
employed by the employer but once
employed such employee must, within a
specific period, become a member of the
contracting union and remain as such in
good standing for continued employment
for the duration of the CBA [take note of
the exceptions in the preceding
number.]

3. MAINTENANCE OF MEMBERSHIP
CLAUSE - the agreement DOES NOT
require non-members to join the
contracting union BUT provides that
those who are members thereof at the
time of the execution of the CBA and
those who may thereafter on their own
volition become members must for the
duration of the agreement maintain
their membership in good standing as a
condition for continued employment in
the company for the duration of the
CBA.

4. PREFERENTIAL SHOP AGREEMENT
an agreement whereby the employer
merely agrees to give preference to the
members of the bargaining union in
hiring, promotion or filing vacancies and
retention in case of lay-off. The
employer has the right to hire from the
open market if union members are not
available.

5. AGENCY SHOP AGREEMENT - an
agreement whereby employees must
either join the union or pay to the union
as exclusive bargaining agent a sum
equal to that paid by the members.

This is directed against
FREE RIDER employees who
benefit from union activities
without contributing support to
the union, to prevent a situation
of non-union members enriching
themselves at the expense of
union members.

Employee members of
another/rival union are not
considered free riders since
when the union [agent] bids to
be the bargaining agent, it
voluntarily assumed the
responsibility of representing all
the employees in the
appropriate bargaining unit.


REQUIREMENTS FOR A VALID
TERMINATION BY THE EMPLOYER OF
THE SERVICES OF AN EMPLOYEE
PURSUANT TO A UNION OR CLOSED-
SHOP AGREEMENT:

1. The agreement must be expressed in
a CLEAR AND UNEQUIVOCAL way so
as not to leave room for
interpretation because it is a
limitation to the exercise of the
right to self-organization.
Any doubt must be resolved
against the existence of a
closed-shop agreement.

2. The agreement can only have
PROSPECTIVE APPLICATION and
cannot be applied retroactively.

3. It can only be exercised by giving the
employee his right to DUE PROCESS.
- The employer has the right to
satisfy himself that there are
sufficient bases for the request
of the union.
- The termination of the services
of the employee is not automatic
upon the request of the union.

4. It cannot be applied to employees
who are already MEMBERS OF THE
RIVAL UNION or to the employees
based on their religious beliefs.

CHAPTER III

UNFAIR LABOR PRACTICES OF
LABOR ORGANIZATIONS
ART. 249. UNFAIR LABOR PRACTICES
OF LABOR ORGANIZATIONS

a. To RESTRAIN OR COERCE employees
in the exercise of their right to self-
organization. However, a labor
organization shall have the right to
prescribe its own rules with respect
to the acquisition or retention of
membership;
b. To CAUSE OR ATTEMPT TO CAUSE
AN EMPLOYER TO DISCRIMINATE
AGAINST AN EMPLOYEE, including
discrimination
c. To VIOLATE THE DULY OR REFUSE
TO BARGAIN COLLECTIVELY with
the employer provided that it is the
representative of the employees;
d. TO CAUSE OR ATTEMPT TO CAUSE
AN EMPLOYER TO PAY OR DELIVER
OR AGREE TO PAY OR DELIVER ANY
MONEY or other things of value, in
the nature of an exaction, for
services which are not performed or
not to be performed, including the
demand for a fee for union
negotiations; (This is called
FEATHERBEDDING)
e. To ASK FOR OR ACCEPT
NEGOTIATION OR ATTORNEYS FEES
FROM EMPLOYERS as part of the
settlement of any issue in collective
bargaining or any other dispute; or
f. To GROSSLY VIOLATE A COLLECTIVE
BARGAINING AGREEMENT.
- The violation must be gross and
must be with respect to
economic provisions of the CBA
flagrantly and with malice.

PERSONS CIVILLY LIABLE FOR
ULP:
1. O
fficers and agents of employer
2. L
abor organization, officers and
agents
3. Agents and officers who
participated or authorized or
ratified the act.
FEATHERBEDDING - refers to the
practice of the union or its agents in
causing or attempting to cause an
employer to pay or deliver or agree to
pay or deliver money or other things of
value, in the nature of exaction, for
services which are not performed or not
to be performed, as when a union
demands that the employer maintain
personnel in excess of the latters
requirements.
It is not featherbedding if the
work is performed no matter
how unnecessary or useless it
may be.

SWEETHEART DOCTRINE considers
it ULP for a labor organization to ask for
or accept negotiation or attorneys fees
from the employer in settling a
bargaining issue or dispute

resulting CBA is considered a
sweetheart contract a CBA
that does not substantially
improve the employees wages
and benefits.



TITLE VII

COLLECTIVE BARGAINING AND
ADMINISTRATION OF AGREEMENTS

ART. 250. PROCEDURE IN
COLLECTIVE BARGAINING
COLLECTIVE BARGAINING negotiation
by an organization or group of workmen,
in behalf of its members, with the
employer, concerning wages, hours of
work and other terms and conditions of
employment and the settlement of
disputes by negotiation between an
employer and the representative of his
employees.
Negotiation towards a collective
agreement.

The mechanics of collective
bargaining is set in motion only when the
following JURISDICTIONAL
PRECONDITIONS are present:

1. POSSESSION OF THE STATUS OF
MAJORITY representation by the
employees representative in
accordance with any of the means of
selection or designation provided for
by the Labor Code;

2. proof of MAJORITY
REPRESENTATION (Certification of
the BLR that the representative of
the employees in the sole and
exclusive bargaining agent having
won in a certification election); and
3. a DEMAND TO BARGAIN under
Article 250 (a) of the Labor Code.
(Kiok Loy vs. NLRC)

COLLECTIVE BARGAINING AGREEMENT
(CBA) - a negotiated contract between a
legitimate labor organization and the
employer concerning:
a. wages,
b. hours of work, and
c. all other terms and
conditions of employment in
a bargaining unit, including
mandatory provisions for
grievances and arbitration
machineries.

PROCEDURE IN COLLECTIVE
BARGAINING

1. Written NOTICE with statement of
proposals
2. REPLY by the other party within 10
calendar days with counter proposals
3. In case of differences, either party
may REQUEST FOR A CONFERENCE
which must be held within 10 days
from receipt of request.
4. If not settled NCMB MAY INTERVENE
AND ENCOURAGE the parties to
submit the dispute to a voluntary
arbitrator
5. If not resolved, the parties may go to
where they want AND RESORT TO
ANY OTHER LAWFUL MEANS [either
to settle the dispute or submit it to a
voluntary arbitrator].
During the conciliation
proceeding in the Board, the
parties are prohibited from doing
any act which may disrupt or
impede the early settlement of
the disputes (250[d] LC).
8 STAGES IN THE NEGOTIATION FOR
A COLLECTIVE BARGAINING
AGREEMENT:
1. PRELIMINARY process - written
notice for negotiation which must
be clear and unequivocal
2. NEGOTIATION Process
3. EXECUTION Process signing of the
agreement
4. PUBLICATION for at least 5 days
before ratification
5. RATIFICATION by the majority of
all the workers in the bargaining
unit represented in the negotiation
(not necessary in case of arbitral
award)
6. REGISTRATION Process
Requisites for registration:
a. mandatory provisions
b. payment of P1, 000
c. 5 copies of CBA
d. proof of ratification
7. ADMINISTRATION Process the CBA
shall be jointly administered by
the management and the
bargaining agent for a period of 5
years
8. INTERPRETATION AND APPLICATION
Process

MANDATORY PROVISIONS OF THE
CBA:
1. wages
2. hours of work
3. grievance machinery
4. voluntary arbitration
5. family planning
6. rates of pay
7. mutual observance clause

In addition, the Bureau requires
that the CBA should include a
clear statement of the terms of
the CBA.

Note: Employers duty to bargain is
limited to mandatory bargaining
subjects; as to other matters, he is free
to bargain or not to bargain.

ART. 252. MEANING OF DUTY TO
BARGAIN COLLECTIVELY

DUTY TO BARGAIN COLLECTIVELY -
the performance of a mutual obligation:

a. to MEET AND CONVENE promptly
and expeditiously in good faith for
the purpose of negotiating an
agreement with respect to wages,
hours of work and all other terms
and conditions of employment
including proposals for adjusting
any grievances or questions arising
under such agreement and

b. EXECUTING A CONTRACT
incorporating such agreements if
requested by either party.

LIMITATIONS:

1. the duty to bargain collectively does
not compel any party to:
a. agree to a proposal; or
b. make a concession.
No room for Take it or Leave it
posture.

2. the parties cannot stipulate terms
and conditions of employment which
are below the minimum requirements
prescribed by law

(Meaning of duty to bargain when there
exists a CBA, see discussion under Art.
253)

Collective bargaining does not
end with the execution of the
agreement. It is a continuous
process. The duty to bargain
imposes on the parties during
the term of their agreement the
mutual obligation to meet and
confer promptly and
expeditiously and in good faith
for the purpose of adjusting any
grievances or question arising
under such agreement. (Republic
Savings Bank vs. CA)

FOUR (4) FORMS OF ULP IN
BARGAINING:
a. failure or refusal to meet and
convene
b. evading the mandatory subjects
of bargaining
c. bad faith in bargaining
[boulwarism], including failure or
refusal to execute the CBA, if
requested
d. gross violation of the CBA

Do economic exigencies justify refusal
to bargain?

An employer has been held not guilty of
refusal to bargain by adamantly
rejecting the union's economic demands
where he is operating at a loss, on a low
profit margin, or in a depressed industry,
as long as he continues to negotiate.
But financial hardship constitutes no
excuse for refusing to bargain
collectively.

ACTS NOT DEEMED REFUSAL TO
BARGAIN:
1. adoption of an adamant bargaining
position in good faith

2. refusal to bargain over demands for
commission of ULP

3. refusal to bargain during period of
illegal strike

4. there is no request for bargaining

5. union seeks recognition for an
inappropriately large unit

6. union seeks to represent some
persons who are excluded from the Code

7. the rank-and-file unit includes
supervisors or inappropriate otherwise

8. the demand for recognition and
bargaining is made within the year
following a certification election in
which the clear choice was no union and
no ad interim significant change has
taken place in the unit

9. the union makes unlawful bargaining
demands
BARGAINING TO THE POINT OF
DEADLOCK OR IMPASSE:

1. over a mandatory subject - party
may insist on bargaining and will not be
construed as bargaining in bad faith

REASON: duty to bargain requires
meeting and convening on the terms and
conditions of employment
but does not require assent to the other
party's proposals.

2. over a non-mandatory subject -
party may not insist on bargaining to the
point of impasse, otherwise, he will be
construed as bargaining in bad faith.

EXAMPLE: The employer's insistence
that the union should change its
negotiator before bargaining can
proceed to the employees' wage and
benefits is an instance of bad-faith
bargaining because the composition of
the negotiating panel is not a mandatory
subject of bargaining.

Hence, if Party A insists on first settling
a non-mandatory subject before tackling
a mandatory subject, Party B may
complain that Party A's posture is just an
excuse to avoid bargaining on the
mandatory, essential subjects of
bargaining; thus, Party B can charge that
Party A is bargaining in bad faith or is
evading bargaining on terms and
conditions of employment - in short,
Party A is committing ULP.

NOTE: What the rule forbids is the
posture of making settlement of a non-
mandatory subject a pre-condition to the
discussion or settlement of a mandatory
subject.

ART. 253. DUTY TO BARGAIN
COLLECTIVELY WHEN THERE EXISTS A
COLLECTIVE BARGAINING AGREEMENT

GENERAL RULE: When there is an
existing CBA, the duty to bargain
collectively shall also mean that neither
party shall TERMINATE nor MODIFY such
agreement during its lifetime. It is the
duty of both parties to:

a. keep the status quo and
b. to continue in the full force and
effect the terms and conditions of
the existing CBA

EXCEPTION: during the 60-day period
prior to its expiration, upon service of a
written notice of a partys intention to
terminate or modify the same, a party
may choose to terminate or modify the
non-representational aspect of the CBA
only after the expiration of CBA of fixed
duration.

DUTY TO BARGAIN COLLECTIVELY
UNDER 253 AND 253-A/256

AUTOMATIC RENEWAL CLAUSE Art.
253 provides that the CBA shall remain
effective and enforceable even after the
expiration of the period fixed by the
parties as long as no new agreement is
reached by them.

WHAT MAY BE DONE DURING THE
60-DAY FREEDOM PERIOD:

a. A labor union may DISAFFILIATE
from the mother union to form a
local or independent union only
during the 60-day freedom period
253 253-A/256

A.FREEDOM PERIOD
-the notice of intention to
terminate, amend or alter
the provisions of the CBA
shall be filed within the
sixty (60) day period,
immediately prior to the
expiration of the CBA.
-the economic provisions
however may be
renegotiated not later than
three (3) years. Those
economic provisions
entered within 6 months
from the expiry of their
term as fixed in the CBA
shall retroact to the day
immediately following such
date, if beyond 6 months
the effectivity is by
agreement of the parties.


- representation
aspect of the
CBA shall be for
a term of five
(5). A petition
for certification
election may be
entertained and
a certification
election may be
conducted within
the 60-day
period
immediately
prior to the
expiration of the
CBA.


B. WHAT MAY BE
CHANGED DURING THE 60-
DAY FREEDOM PERIOD
-re-negotiable provisions of
the CBA particularly the
non-representation aspect
(ECONOMIC PROVISIONS
may be renegotiated not
later than three (3) years.


- representation
aspectit may be
resolved by holding
certification
election

immediately preceding the
expiration of the CBA. [take note of
the limitation-see discussions on
registration of labor unions]
b. either party can serve a written
notice to TERMINATE OR MODIFY
the agreement at least 60 days prior
to its expiration period [on re-
negotiable/non-representation
aspect of the CBAsee discussion on
253]
c. a petition for CERTIFICATION
ELECTION may be filed

ART. 253A. TERMS OF A
COLLECTIVE BARGAINING AGREEMENT
(CONTRACT BAR RULE)

DURATION OF THE CBA:

1. With respect to the
representation aspect, the same
lasts for 5 years

2. With respect to other provisions
[economic provisions], the same may
last for a maximum period of 3 years
after the execution of the CBA

RULE ON RETROACTIVE EFFECTS OF
OTHER ECONOMIC PROVISIONS WITH
FIXED TERM OR DATES OF EXPIRY AS
PROVIDED IN THE CBA:

a. Those made within 6 months after
the date of expiry of the CBA
- Any agreement on such other
provisions of the CBA made within 6
months after the date of expiry of the
CBA is subject to AUTOMATIC
RETROACTION to the day immediately
following such date of expiry.

b. Those not made within 6 months the
parties may agree to the DATE OF
RETROACTION.
- This rule applies only if there
is an EXISTING AGREEMENT. If THERE IS
NO EXISTING AGREEMENT, there is no
retroactive effect because the date
agreed upon shall be the start of the
period of agreement.

NOTE: Article 253-A on retroaction does
not apply if the provisions were imposed
by the Secretary of Labor by virtue of
arbitration. It applies only if the
agreement was voluntarily made by the
parties.
ART. 254. NO INJUNCTION RULE

No temporary or permanent
injunction or restraining order in any
case involving or growing out of labor
disputes shall be issued by any court or
other entity, except as otherwise
provided in Articles 218 (Powers of the
Commission/NLRC) and 264 (Prohibited
Activities) of this Code.

REASON: injunction contradicts the
constitutional preference for voluntary
modes of dispute settlement

In cases of strikes/picketing, third
parties or innocent bystanders may
secure a court (regular court)
injunction to protect their rights.
(PAFLU vs. CLORIBEL)

ART. 255. EXCLUSIVE BARGAINING
REPRESENTATION AND WORKERS
PARTICIPATION IN POLICY AND
DECISION-MAKING

WHAT IS THE MEANING OR EXTENT OF
THE WORKERS RIGHT TO
PARTICIPATE IN POLICY AND DECISION-
MAKING PROCESSES?

Such right refers ONLY to
participation in grievance procedures
and voluntary modes of settling disputes
and NOT to formulation of corporate
programs and policies.

NOTE: An employer may solicit
questions, suggestions and complaints
from employees eventhough the
employees are represented by a union,
provided:

1. the collective bargaining
representative executes an
agreement waiving the right to be
present on any occasion when
employee grievances are being
adjusted by the employer and

2. employer acts strictly within the
terms of this waiver agreement.



ONE-UNION, ONE-COMPANY POLICY -
the proliferation of unions in an
employer unit is discouraged as a matter
of policy unless there are compelling
reasons which would deny a certain class
of employees the right to self-
organization for purposes of collective
bargaining.

EXCEPTION:
- supervisory employees who are
allowed to form their own unions apart
from the rank-and-file employees

- the policy should yield to the right of
employees to form unions for purposes
not contrary to law, self-organization
and to enter into collective bargaining
negotiations.

two companies cannot be
treated into a single bargaining unit
even if their businesses are related.

subsidiaries or corporations
formed out of former divisions of a
mother company following a
reorganization may constitute a
separate bargaining unit.

LABOR MANAGEMENT COUNCILS -
deal with the employer on matters
affecting employees rights, benefits and
welfare.
They may be formed even if there
is already a union in the company.

ARTS. 256-259 PETITION FOR
CERTIFICATION ELECTION

BARGAINING UNIT- a group of
employees of a given employer,
comprised of all or less than all the
entire body of the employees, which,
consistent with equity to the employer,
indicate to be best suited to serve the
reciprocal rights and duties of the
parties under the collective bargaining
provision of the law.

CERTIFICATION YEAR - refers to the
period wherein collective bargaining
should begin, which is within 12 months
following the determination and
certification of employees' exclusive
bargaining representative.
FOUR FACTORS IN DETERMINING THE
APPROPRIATE BARGAINING UNIT:

1. the EXPRESS WILL OR DESIRE of the
employees (Globe Doctrine);
the desires of all the employees
are relevant to the
determination of the appropriate
bargaining unit. The relevance
of the wishes of the employees
concerning their inclusion or
exclusion from a proposed
bargaining unit is inherent in the
basic right to self organization

2. the SUBSTANTIAL AND MUTUALITY
INTEREST factor;

3. prior collective bargaining HISTORY;
and

4. EMPLOYMENT STATUS, such as
a. temporary
b. seasonal, and
c. probationary employee

THINGS TO CONSIDER IN
DETERMINING THE COMMUNITY
OF INTEREST DOCTRINE:

1. similarity in the scale and manner of
determining earnings

2. similarity in employment benefits,
hours of work and other terms and
conditions of employment

3. similarity in the kinds of work
performed

4. similarity in the qualifications, skills
and training of the employees

5. frequency of contract or interchange
among the employees

6. common supervision and
determination of labor-relations
policy

7. history of previous collective
bargaining

8. desires of the affected employees

9. extent of union organization
MODES OF CHOOSING THE EXCLUSIVE
BARGAINING UNIT:

1. SELECTION - certification election
2. DESIGNATION - voluntary recognition

A. CERTIFICATION ELECTION the
process of determining by secret ballot
the sole and exclusive bargaining agent
of the employees in an appropriate
bargaining unit, for purposes of
collective bargaining

CERTIFICATION vs. CONSENT
ELECTION
CERTIFICATION
ELECTION
CONSENT
ELECTION

A. NATURE
- separate and distinct
from a consent
election



- a separate and
distinct process
and has nothing
to do with the
import and
effect of a
certification
election

B. PURPOSE
- to determine the sole
and exclusive
bargaining agent of all
the employees in an
appropriate bargaining
unit for the purpose of
collective bargaining;



- to determine
the issue of
majority
representation
of all the
workers in the
appropriate
collective
bargaining unit
mainly for the
purpose of
determining the
administrator of
the CBA when
the contracting
union suffered
massive
disaffiliation but
not for the
purpose of
determining the
bargaining agent
for purposes of
collective
bargaining.



DIRECT CERTIFICATION - the process
whereby the Med-Arbiter directly
certifies a labor organization of an
appropriate bargaining unit of a
company after a showing that such
petition is supported by at least a
majority of the employees in the
bargaining unit. IT IS NO LONGER
ALLOWED. (EO 111)

VOLUNTARY RECOGNITION the process
whereby the employer recognizes a labor
organization as the exclusive bargaining
representative of the employees in the
appropriate bargaining unit after a
showing that the labor organization is
supported by at least a majority of the
employees in the bargaining unit.

EFFECT OF VOLUNTARY
RECOGNITION BY THE EMPLOYER -
through voluntary recognition by the
employer, the labor organization is
recognized by the employer as the
exclusive bargaining agent which may
collectively bargain with such employer.

C.E. IN AN ORGANIZED AND AN
UNORGANIZED ESTABLISHMENT

ORGANIZED UNORGANIZED

A. WHEN MANDATORY ON
THE PART OF BLR
- upon the filing of a
verified petition by a
legitimate labor
organization questioning
the majority status of the
incumbent bargaining
agent within the 60-day
freedom period before the
expiration of a CBA.
- The petition must be
supported by the written
consent of at least 25% of
ALL THE EMPLOYEES IN
THE APPROPRIATE
BARGAINING UNIT.
- the employer cannot file
a petition for certification
election; only a legitimate
labor organization can file
such petition.



Upon:
a. the filing
of a verified
petition by a
legitimate
labor
organization;
or
b. upon the
filing of a
petition by
the employer
when such
employer is
requested by
the
employees to
bargain
collectively.



B. PERIOD FOR FILING THE


PETITION
a. when there is a CBA,
the labor organization can
file a petition for
certification election
within the 60-day freedom
period (CONTRACT-BAR
RULE)
b. when there is no CBA,
then the labor organization
can file a petition for
certification election at
any time, subject to the
Deadlock Bar Rule.

- any time,
subject
however to
the ONE-
ELECTION-
PER-YEAR
RULE.


REQUISITES BEFORE A LABOR UNION
CAN BE DECLARED A WINNER (DOUBLE
MAJORITY RULE):

1. Majority of the eligible voters cast
their votes AND

2. Majority of the valid votes cast is for
such union.


HOW TO DETERMINE THE DOUBLE
MAJORITY RULE:


1. In determining the eligible votes cast
[FIRST MAJORITY], include spoiled
ballots

2. In determining valid votes [SECOND
MAJORITY], eliminate spoiled ballots
but include challenged votes


RUN-OFF ELECTION:

A run-off election is proper if the
following conditions exist namely:

(a) a VALID ELECTION took
place because majority of the
Collective Bargaining Unit
members voted [FIRST
MAJORITY];

(b) the said election
presented at least THREE
CHOICES, e.g., Union One,
Union Two, and No Union
(Take Note: No Union shall
not be a choice in the run off
election);

(c) NOT ONE OF THE
CHOICES OBTAINED THE
MAJORITY (50%+1-SECOND
MAJORITY) of the valid votes
cast;

(d) the TOTAL VOTES FOR
THE UNIONS IS AT LEAST 50%
of the votes cast;

(e) there is NO
UNRESOLVED CHALLENGED
VOTES or election protest
which if sustained can
materially alter the results

(f) the two choices which
garnered the highest votes will
be voted and the one which
garners the highest number of
votes will be declared the
winner provided they get the
majority votes of the total
votes cast

Who will participate in the run
off?

The unions receiving the highest
and second highest number of votes
cast.

Re Run Election vs. Run off
Election
RE RUN ELECTION RUN OFF
ELECTION

Held in two
instances:

1. if one choice
receives a
plurality of vote
and the
remaining
choices results
in a tie;
2. if all choices
received the
same number of
votes;
In both
instances, the
Conducted when
none of the
choices, including
the choice of No
Union, receives a
majority of the
valid vote cast.
This presupposes
no less than three
competing choices.
In this situation, an
election is
conducted
between the union
choices receiving
the largest and the
second largest
number of the
valid votes cast.
NO UNION is also
a choice

RULES WHICH PREVENT THE
HOLDING OF A CERTIFICATION
ELECTION [DONC]:
1. Deadlock bar rule- when there
is a deadlock in collective bargaining and
the same has been submitted to NCMB
for conciliation and mediation the same
bars any petition or conduct of
certification election.
2. One year bar rule
3. Negotiation bar rule
4. Contract bar rule

1. CONTRACT-BAR RULE - while a valid
and registered CBA of a fixed duration is
subsisting, the BLR is not allowed to hold
an election contesting the majority
status of the incumbent union during the
five year term of the CBA except during
the sixty day period immediately prior to
the expiration of the CBA.

REQUIREMENTS IN ORDER TO INVOKE
CONTRACT-BAR RULE:

1. Agreement is in WRITING AND
SIGNED by all contracting parties.
2. It must contain THE TERMS AND
CONDITIONS of employment.
3. Covered employees in an appropriate
bargaining unit [ABU EES COVERED].
4. It is for a REASONABLE PERIOD or
duration.
5. It must be RATIFIED.
6. It must be REGISTERED with the
Bureau.
7. The violation of the contract bar rule
or the existence of a duly registered
CBA must be specifically IMPLEADED
AS A DEFENSE.

EFFECT OF AN INVALID AND
UNREGISTERED CBA- there is no bar and
therefore a certification election may be
held.

NOTE: Registration of CBA only puts into
effect the contract bar rule but the CBA
itself is valid and binding even if
unregistered.
EXCEPTIONS TO THE CONTRACT-BAR
RULE:

1. CBA is not registered
2. CBA deregistered
3. CBA was hastily concluded way
ahead of the freedom period
4. CBA is incomplete in itself
5. CBA does not foster industrial peace
because of schism
6. CBA was concluded in violation of an
order enjoining the parties from
entering into a CBA until the issue of
representation is resolved
7. Petition is filed during the 60-day
freedom period

SUCCESSOR-IN-INTEREST DOCTRINE
When an employer with an existing CBA
is succeeded by another employer, the
successor-in-interest who is a buyer in
good faith has no liability to the
employees in continuing employment
and the collective bargaining agreement
because these contracts are in personam

EXCEPT:
a. when the successor-in-interest
expressly assumes the obligation or
b. the sale is a device to
circumvent the obligation or
c. the sale or transfer is made in
bad faith

SUBSTITUTIONARY DOCTRINE where
there occurs a shift in the employees
union allegiance after the execution of a
collective bargaining contract with the
employer, the employees can change
their agent (the labor union) but the
collective bargaining contract which is
still subsisting continues to bind the
employees up to its expiration date.
They may, however, bargain for the
shortening of said expiration date.

The employees cannot revoke
the validly executed collective
bargaining contract with their
employer by the simple
expedient of changing their
bargaining agent. The new
agent must respect the contract.
(Benguet Consolidated, Inc. vs.
Employees and Workers Union-
PAFLU)

LIMITATION AS TO ITS APPLICATION
it cannot be invoked to support the
contention that a newly certified
collective bargaining agent automatically
assumes all the personal undertakings of
the former agentlike the no strike
clause in the CBA executed by the
latter (Benguet Consolidated Inc. vs. BCI
Employees and Workers Union-PAFLU).

2. DEADLOCK BAR RULE - a petition for
certification election cannot be
entertained if, before the filing of the
petition for certification election, a
bargaining deadlock to which an
incumbent or certified bargaining agent
is a party, had been submitted to
conciliation or arbitration or had become
the subject of a valid notice of strike or
lockout.

DEADLOCK arises when there is an
impasse, which presupposes reasonable
effort at good faith bargaining which,
despite noble intentions, did not
conclude in an agreement between the
parties.

INDICATIONS OF A GENUINE
DEADLOCK:
1. the submission of the deadlock
to a third party conciliator or
arbitrator
2. the deadlock is the subject of
a valid notice of strike or lockout

3. NEGOTIATION BAR RULE - a petition
for certification election cannot be
entertained if, before the filing of the
petition for certification election, the
duly recognized or certified union has
commenced negotiations with the
employer in accordance with Art. 250 of
the Labor Code.

4. CERTIFICATION YEAR RULE no
petition for certification election may be
filed within one year from the date of a
valid certification, consent, or run-off
election or from the date of voluntary
recognition
EXAMPLES OF BAD FAITH
BARGAINING:

1. Surface Bargaining occurs when
employer constantly changes its
positions over the agreement.
2. Boulwarism occurs:
a. when the employer directly
bargains with the employee
disregarding the union.

The aim was to deal with the
Union through the employees,
rather than with the employees
through the union.
b. Employer submits its proposals
and adopts a take it or leave it
stand. This is not negotiation
because the take it or leave it stand
implies threat.

3. Side Bar Technique



TITLE VII- A
(as incorporated by RA 6715)


GRIEVANCE MACHINERY AND
VOLUNTARY ARBITRATION

ART. 260. GRIEVANCE MACHINERY
AND VOLUNTARY ARBITRATION
GRIEVANCE MACHINERY - a
mechanism for the adjustment of
controversies or disputes arising from
the interpretation or implementation of
the CBA and the interpretation or
enforcement of company personnel
policies

GRIEVANCE - arises when a dispute or
controversy arises over the
implementation or interpretation of a
CBA or from the implementation or
enforcement of company personnel
policies, and either the union or the
employer invokes the grievance
machinery provision for the adjustment
or resolution of such dispute or
controversy.

NATURE OF GRIEVANCE PROCEDURE -
It is a must provision in any CBA and
no collective agreement can be
registered in the absence of such
procedure.
It is a part of the continuous
process of collective bargaining intended
to promote a friendly dialogue between
labor and management as a means of
maintaining industrial peace.

VOLUNTARY ARBITRATION -
contractual proceedings where parties to
a dispute select a judge of their own
choice and by consent submit their
controversy to him for determination.
All grievances not settled within 7
days from the date of its submission to
the grievance machinery shall
automatically be referred voluntary
arbitration prescribed in the CBA.
Although the provision
mentions parties to a
collective bargaining
agreement, it does not
mean that a grievance
machinery cannot be set up
in a CBA-less enterprise. In
any work place where
grievance can arise, a
grievance machinery
(regardless of name) can be
established.
In a unionized company, Art.
255 allows an employee,
union member or not, to
raise a grievance directly to
the employer.

ARBITRATION MAY BE INITIATED BY:

1. SUBMISSION AGREEMENT
where the parties define the
disputes to be resolved; or
2. DEMAND OR NOTICE invoking a
collective agreement
arbitration clause.


ART 261. JURISDICTION OF
VOLUNTARY ARBITRATORS OR PANEL
OF VOLUNTARY ARBITRATORS
JURISDICTION OF VOLUNTARY
ARBITRATORS:

1. EXCLUSIVE ORIGINAL JURISDICTION
CONFERRED BY LAW

a) All grievances arising from the
interpretation or implementation
of the CBA.
b) Those arising from the
interpretation or enforcement of
company personnel polices.
c) Hear and decide wage distortion
issues arising from the
application of any wage orders
in organized establishments.
d) Unresolved grievances arising
from the interpretation and
implementation of the
productivity incentive programs
under RA 6071 .

It is the labor arbiter and not the
grievance machinery which has
jurisdiction over dismissals pursuant
to the union security clause.
violations of CBA, except those
which are gross in character, shall no
longer be treated as ULP and shall
be resolved as grievances.

GROSS VIOLATION flagrant and/or
malicious refusal to comply with the
economic provisions of the CBA.

2. JURISDICTION BY AGREEMENT OF
THE PARTIES (Art. 262)

-all other disputes including ULP
and bargaining deadlocks
The disputes the parties may
submit to a Voluntary Arbitrator
can include any or all the
disputes mentioned in Art. 217
which otherwise fall under the
exclusive jurisdiction of a labor
arbiter.
Voluntary arbitration may be
viewed as a master procedure to
prevent or resolve labor disputes
GROUNDS FOR JUDICIAL REVIEW OF
DECISIONS OF VOLUNTARY
ARBITRATORS:

1. Lack of jurisdiction
2. Grave abuse of discretion
3. Violation of due process
4. Denial of substantial justice
5. Erroneous interpretation of the law

A voluntary arbitrator is a quasi-
judicial instrumentality (Sec 9 BP129
as amended by RA 7902); hence, a
petition for certiorari under Rule 65
of the Rules of Court will lie where a
grave abuse of discretion or an act
without or in excess of jurisdiction
of the voluntary arbitrator is shown,
which may be filed with the Court of
Appeals.

TITLE VIII

STRIKES AND LOCKOUTS AND
FOREIGN INVOLVEMENT IN TRADE
UNION ACTIVITIES
CHAPTER I
STRIKES AND LOCKOUTS

ART. 263. STRIKES, PICKETING AND
LOCKOUTS

STRIKE - Any temporary stoppage
of work by the concerted action of
employees as a result of an industrial
or labor dispute.
IMPORTANCE: it is the most
effective weapon of labor in protecting
the rights of employees to improve the
terms and conditions of their
employment.
Government employees may form
labor unions but are not allowed to
strike.
Only legitimate labor organizations
are given the right to strike.
Ununionized workers may hold a
protest action but not a strike
Not all concerted activities are
strikes; they may only be protest
actions. And they do not necessarily
cause work stoppage by the
protesters. A strike, in contrast, is
always a group action accompanied
by work stoppage.
LOCKOUT - means the temporary
refusal of an employer to furnish work as
a result of an industrial or labor dispute.

PICKETING - the act marching to
and fro the employers premises, usually
accompanied by the display of placards
and other signs making known the facts
involved in a labor dispute. This is an
exercise of ones freedom of speech.

STRIKE-BREAKER - any person
who obstructs, impedes or interferes by
force, violence, coercion, threats or
intimidation with any peaceful picketing
by employees during any labor
controversy affecting wages, hour or
conditions of work or in the exercise of
the right to self organization or
collective bargaining
STRIKE AREA the establishment,
warehouse, depots, plants or offices,
including the sites or premises used as
runaway shops of the employer struck
against, as well as the immediate
vicinity actually used by picketing
strikers in moving to an fro before all
points of entrance to and exit from said
establishment
SOME EXAMPLES OF STRIKES AND
THEIR VALIDITY
A. SIT-DOWN STRIKE - is
characterized by a temporary work
stoppage of workers who thereupon
seize or occupy property of the employer
or refuse to vacate the premises of the
employer. ILLEGAL- amounts to a
criminal act because the employees
trespass on the premises of the
employer.
B. WILDCAT STRIKE- is a work stoppage
that violates the labor contract and is
not authorized by the union. ILLEGAL- It
is not valid because it fails to comply
with certain requirements of the law, to
wit: notice of strike, vote, and report on
strike vote.
C. SYMPATHETIC STRIKES- are work
stoppages of workers of one company to
make common cause with other strikers
of other companies, without demands or
grievances of their own against the
employer. ILLEGAL - because there is no
labor dispute between the workers who
are joining the strikers and the latters
employer.
D. SECONDARY STRIKES- are work
stoppages of workers of one company to
exert pressure on their employer so that
the latter will in turn bring pressure
upon the employer of another company
with whom another union has a labor
dispute. ILLEGAL- because there is no
labor dispute involved.

IS A WELGA NG BAYAN LEGAL?
NO. A welga ng bayan is illegal
because it is a political strike and
therefore there is neither a bargaining
deadlock nor any ULP. It is a political
rally.

GROUNDS FOR THE
DECLARATION OF STRIKE:
1. deadlock in collective bargaining
(ECONOMIC); and/or

2. unfair labor practices (POLITICAL)


ECONOMIC STRIKE ULP STRIKE
[POLITICAL]
A. NATURE
- A voluntary strike
because the
employee will
declare a strike to
compel management
to grant its demands.
- An involuntary
strike; the labor
organization is
forced to go on
strike because of
the ULP
committed
against them by
the employer. It
is an act of self-
defense since the
employees are
being pushed to
the wall and their
only remedy is to
stage a strike.
B. INITIATED BY:
- The collective
bargaining agent of
the appropriate
bargaining unit can
declare an economic
strike.
- either
a. Collective
bargaining agent
or
b. the legitimate
labor organization
in behalf of its
members
C. COOLING OFF PERIOD
-30 days from the
filing of the notice of
strike before the
intended date of
actual strike subject
to the 7-day strike
ban.


-15 days from the
filing of the
notice of strike.
D. EXCEPTION TO THE COOLING-
OFF PERIOD
- No exception
mandatory.


- Notice of strike
and strike vote
maybe dispensed
with. They may
strike immediately.
- the cooling off
period may be
dispensed with, and
the union may take
immediate action in
case of dismissal
from employment
of their officers duly
elected in
accordance with the
unions Constitution
and By-laws, which
may constitute
union busting
where the
existence of the
union is
threatened.

- BUT it must still
observe the
mandatory 7-day
period before it
can stage a valid
strike.
E. STRIKE DURATION PAY IN CASE OF A
LEGAL STRIKE

- not entitled to said
pay based on the
principle that a fair
days wage accrues
only for a fair days
labor

- may be awarded
the said paid in the
discretion of the
authority deciding
the case.

CHARACTERISTICS OF STRIKES:
1. there must be an established
relationship between the strikers and
the person/s against whom the strike is
called
2. the relationship must be one of
employer and employee
3. the existence of a dispute
between the parties and the utilization
by labor of the weapon of concerted
refusal to work as a means of persuading
or coercing compliance with the working
mens demands
4. the contention advanced by the
workers that although the work ceases,
the employment relation is deemed to
continue albeit in a state of belligerent
suspension
5. there is work stoppage, which
stoppage is temporary
6. the work stoppage is done
through the concerted action of the
employees
7. the striking group is a legitimate
labor organization, and in case of
bargaining deadlock, is the employees
sole bargaining representative.

TESTS IN DETERMINING THE
LEGALITY OF A STRIKE:
1. Purpose Test
2. Compliance with Procedural and
substantive requirements of law
3. Means employed test

1. PURPOSE TEST - The strike must be
due to either
- bargaining deadlock and/or
- unfair labor practice.

2. COMPLIANCE WITH PROCEDURAL &
SUBSTANTIVE REQUIREMENTS OF
LAW to wit (a-d):

a. notice of strike
b. 30/15-day cooling-off period
before the intended date of actual
strike subject to the 7-day strike ban.

COOLING OFF PERIOD - that period
of time given the NCMB to mediate and
conciliate the parties.
It is that span of time
allotted by law for the
parties to settle
theirdisputes in a peaceful
manner, before staging a
strike or lockout.

c. strike vote

STRIKE VOTE - a requirement
wherein the decision to declare a strike
must be:
1. approved by a MAJORITY of the
total union membership in the
bargaining unit concerned [not
of the whole bargaining unit],
2. obtained by SECRET BALLOT
in MEETINGS OR
REFERENDA called for the
purpose.

PURPOSE OF A STRIKE VOTE: - to
ensure that the intended strike is a
majority decision
The report on the strike
vote must be submitted to the
DOLE at least 7 days before
the intended strike subject to
the cooling-off period.



d. 7-day strike ban

7-DAY STRIKE BAN it is the 7 day
waiting period before the date of the
purported strike [within which the union
intending to conduct a strike must at
least submit a report to the Department
as to the result of the strike vote]
intended to give the Department an
opportunity TO VERIFY whether the
projected strike really carries the
imprimatur of the majority of the union
members in addition to the cooling off
period before actual strike.

3. MEANS EMPLOYED TEST-A strike
may be legal at its inception but
eventually be declared illegal if the
strike is accompanied by violence
which violence is widespread,
pervasive and adopted as a matter of
policy and not merely violence which
is sporadic which normally occur in a
strike area [see prohibited activities
under art. 264].

NOTE: The 3 tests must concur.
Non-compliance with any of the
aforementioned requisites renders the
strike illegal.

EFFECT OF GOOD FAITH OF
STRIKERS ON LEGALITY OF STRIKE - A
strike may be considered legal where the
union believed that the company
committed ULP and the circumstances
warranted such belief in good faith,
although subsequently such allegations
of ULP are found out as not true. (Bacus
vs. Ople)

TOTALITY DOCTRINE - the
culpability of an employers remarks are
to be evaluated not only on the basis of
their implicit implications but are to be
appraised against the background of and
in conjunction with collateral
circumstances.
Under this doctrine expressions
of opinion by an employer which, though
innocent in themselves, frequently were
held to be culpable because:

a. of the circumstances
under which they were uttered
b. the history of the particular
employers labor relations of
anti-union bias or
c. because of their connection
with an established collateral
plan of coercion or interference.
WHEN CAN THE SEC. OF LABOR
ASSUME JURISDICTION OVER A STRIKE?
1. there exists a labor dispute causing or
likely to cause a strike or lockout in a
INDUSTRY INDISPENSABLE TO THE
NATIONAL INTEREST,
2. the Secretary of Labor and
Employment may:
a. decide it, or
b. certify the same to the NLRC for
COMPULSORY ARBITRATION.

NOTE: What constitutes
indispensable industry is based solely
upon the discretion of the Secretary of
Labor.

EFFECTS OF THE ASSUMPTION
OF JURISDICTION OF THE SECRETARY

1. AUTOMATICALLY ENJOINS the
intended or impending strike or
lockout as specified in the
assumption or certification order;

2. if one has already taken place at
the time of assumption or
certification, all striking or locked-
out employees shall IMMEDIATELY
RETURN TO WORK; and

3. the employer shall immediately
resume operations and READMIT ALL
WORKERS under the same terms and
conditions prevailing before the
strike or lockout.

A motion for reconsideration does
not suspend the effects as the
assumption order is immediately
executory.

ISSUES THAT THE SECRETARY OF
LABOR CAN RESOLVE WHEN HE
ASSUMES JURISDICTION OVER A LABOR
DISPUTE:

c. Only issues submitted to the
Secretary may be resolved by him.
(PAL vs. Sec. of Labor, 23 January
1991).

d. Issues submitted to the Secretary
for resolution and such issues
involved in the labor dispute itself.
(St. Scholasticas College vs.
Torres; 29 June 1992)

e. Secretary of Labor may subsume
pending labor cases before Labor
Arbiters which are involved in the
dispute and decide even issues
falling under the exclusive and
original jurisdiction of labor
arbiters such as the declaration of
legality or illegality of strike.
(Intl Pharmaceuticals vs. Sec of
Labor; 09 January 1992).

f. Power of Sec. of Labor is plenary
and discretionary. (St. Lukes
Medical Center vs. Torres; 29 June
1993; reiterated in PAL vs.
Confesor; 10 March 1994).

IN CASE THE STRIKE IS DECLARED
LEGAL, ARE THE STRIKERS ENTITLED
TO STRIKE DURATION PAY?

GENERAL RULE: Strikers are not
entitled to their wages during the period
of a strike, even if the strike is legal.

EXCEPTIONS:

1. In case of a ULP STRIKE, in the
discretion of the authority deciding
the case [see table for more
distinction bet. Economic and ULP
strike]

2. Where the strikers VOLUNTARILY
AND UNCONDITIONALLY OFFERED
TO RETURN TO WORK, but the
employer refused to accept the
offer [e.g. of an unconditional
offer: we will return tomorrow
and NOT willing to return
provided]

They are entitled to backwages from
the date the offer was made

3. Where there is RETURN-TO-WORK
ORDER and the employees are
discriminated against.

- They are entitled to backwages
from the date of discrimination.

RULE ON REINSTATEMENT OF
STRIKING WORKERS:

GENERAL RULE : Striking employees
are entitled to reinstatement, regardless
of whether or not the strike was the
consequence of the employers ULP
REASON: because while out on
strike, the strikers are not considered to
have abandoned their employment, but
rather have only ceased from their labor.

The declaration of a strike is
NOT a renunciation of
employment relation.

EXCEPTIONS - The following strikers
are NOT entitled to reinstatement:
1. Union officers who knowingly
participate in an illegal strike; and
2. any striker/union member who
knowingly participates in the
commission of illegal acts during the
strike.

Those union members who
joined an illegal strike but have
not committed any illegal act
shall be reinstated but without
any backwages.

RULE IN STRIKES IN HOSPITALS

1. It shall be the duty of striking
employees or locking-out employer to
provide and maintain an effective
SKELETAL WORKFORCE of medical
and other health personnel for the
duration of the strike or lockout.

2. SECRETARY OF LABOR MAY
IMMEDIATELY ASSUME JURISDICTION
WITHIN 24 HOURS FROM
KNOWLEDGE of the occurrence of
such strike or lock-out or certify it to
the Commission for compulsory
arbitration.

ART. 264. PROHIBITED
ACTIVITIES

LABOR ORGANIZATIONS

1. No labor organization or employer
shall declare a strike or lockout

without first having
bargained collectively in
accordance with Title VII of
this Book or

without first having filed
the notice required in Art. 263
or

without the necessary
strike or lockout vote first
having been obtained and
reported to the Department.


NO strike or lockout shall be
declared:

a. AFTER assumption of
jurisdiction by the President
or the Secretary or

b. AFTER certification or
submission of the dispute to
compulsory or voluntary
arbitration or

c. DURING the pendency of
cases involving the same
grounds for the strike or
lockout.

THIRD PERSONS

2. NO person [3
rd
persons] all obstruct,
impede or interfere with by force,
violence, coercion, threats or
intimidation
any peaceful picketing by
employees

during any labor
controversy or in the
exercise of the right of self-
organization or collective
bargaining or

shall aid or abet such
obstruction or interference.

EMPLOYERS

3. NO employer shall use or employ
any STRIKE-BREAKER nor shall any
person be employed as a
strikebreaker.

PUBLIC OFFICIAL OR EMPLOYEE

4. NO public official or employee,
including officers and personnel of
the New Armed Forces of the
Philippines of the Integrated
National Police, or armed persons,

shall bring in, introduce or
escort in any manner, any
individual who seeks to
replace strikes in entering
or leaving the premises of a
strike area, or work in place
of the strikers.

The police force shall keep
out of the picket lines
unless actual violence or
other criminal acts occur
therein:

Provided, That nothing herein shall
be interpreted to prevent any public
officers from taking any measure
necessary to:

a. maintain peace and order,

b. protect life and property,
and/or

c. enforce the law and legal
order.


PERSONS ENGAGED IN PICKETING
NO person engaged in PICKETING shall:

a. commit any act of violence,
coercion or intimidation or

b. obstruct the free ingress to or
egress from the employers premises
for lawful purposes,or
c. obstruct public thoroughfares

ART. 265. IMPROVED OFFER vs.
REDUCED OFFER BALLOTING

IMPROVED OFFER
BALLOTING

REDUCED
OFFER
BALLOTING

1. a referendum
conducted by the NCMB
on or before the 30
th
day
of the strike, for the
purpose of determining
whether or not the
improved offer of the
employer is acceptable
to the union members.

1. a
referendum
conducted by
the NCMB for the
purpose of
determining
whether or not
the reduced
offer of the
union is
acceptable to
the board of
directors,
trustees or
partners.
PURPOSE
2. to determining
whether or not the
improved offer of the
EMPLOYER is acceptable
to the union members.
to ascertain the
real sentiment of
the silent majority
of the union
members on strike.

2. to
determining
whether or not
the improved
offer of the
UNION is
acceptable to
the union
members.
to ascertain
the real
sentiment of the
silent majority
of the union
members on
strike.
PERIOD OF FILING
3. on or before the
30
th
day of the strike

3. on or
before the 30
th

day of the
lockout
LIMITATION
4. applies only to
economic strikes
(deadlock)
4. applies
only to economic
strikes-deadlock
in bargaining
(lockout)

ART. 266. ARREST AND DETENTION

General rule is that a police officer
cannot arrest or detain a union
member for union activities without
previous consultations with the
Secretary of Labor EXCEPT on
grounds of:
a. national security

b. public peace

c. commission of a crime

BOOK SIX

POST EMPLOYMENT

TITLE I

TERMINATION OF
EMPLOYMENT

ART. 279. SECURITY OF TENURE
SECURITY OF TENURE - the
constitutional right granted the
employee, that the employer shall not
terminate the services of an employee
except for just cause or when authorized
by law.
RELIEFS AVAILABLE TO AN
ILLEGALLY DISMISSED EMPLOYEE:

A. REINSTATEMENT - Restoration of
the employee to the state from which he
has been unjustly removed or separated
without loss of seniority rights and other
privileges.

FORMS OF REINSTATEMENT:
1. ACTUAL OR PHYSICAL REINSTATEMENT
- the employee shall be admitted
back to work
2. PAYROLL REINSTATEMENT
- the employee is merely reinstated
in the payroll.

May a court order the
reinstatement of a dismissed
employee even if the prayer of the
complaint did not include such relief?

YES. So long as there is a finding
that the employee was illegally
dismissed, the court can order the
reinstatement of an employee even if
the complaint does not include a prayer
for reinstatement, unless, of course, the
employee has waived his right to
reinstatement. By law, an employee who
is unjustly dismissed is entitled to
reinstatement, among others. The mere
fact that the complaint did not pray for
reinstatement will not prejudice the
employee, because technicalities of law
and procedure are frowned upon in labor
proceedings (General Baptist Bible
College v. NLRC; 219 SCRA 549).

What happens if there is an order
of reinstatement but the position is no
longer available?
The employee should be given a
SUBSTANTIALLY EQUIVALENT POSITION.
If NO SUBSTANTIALLY EQUIVALENT
POSITION IS AVAILABLE, reinstatement
should not be ordered because that
would in effect compel the employer to
do the impossible. In such a situation,
the employee should merely be given
SEPARATION PAY CONSISTING OF ONE
MONTH SALARY FOR EVERY YEAR OF
SERVICE (1:1).

CIRCUMSTANCES WHEN
COMPANY MAY NOT REINSTATE DESPITE
ORDER OF REINSTATEMENT
1. TRANSFER OF BUSINESS OWNERSHIP
-There is no law requiring a
purchasing corporation to absorb the
employees of the selling corporation.
A fortiori, reinstatement of unjustly
dismissed employees CANNOT be
enforced against the new owner
UNLESS there is an express
agreement on the assumption of
liabilities by the purchasing
corporation;
2. When reinstatement is rendered
IMPOSSIBLE due to the abolition of
the position;
3. When the business has CLOSED
DOWN;
4. PHYSICAL INCAPACITY of the
employee; and
5. DOCTRINE OF STRAINED RELATIONS
- When the employer can no longer
trust the employee and vice-versa,
reinstatement could not effectively
serve as a remedy. This doctrine only
applies only to positions which
require trust and confidence

- Under the circumstances
where the employment
relationship has become so
strained to preclude a
harmonious working
relationship, and that all hopes
at reconciliation are nil after
reinstatement, it would be
more beneficial to accord the
employee backwages and
separation pay.

B. BACKWAGES the relief given to
an employee to compensate him for lost
earnings during the period of his
dismissal.

PERIOD COVERED BY THE
PAYMENT OF BACKWAGES -
Backwages shall cover the period from
the date of dismissal of the employee up
to the date of actual reinstatement

HOW COMPUTED - Under existing
law, backwages is computed from the
time of the illegal dismissal up to time of
actual reinstatement.

INCLUDED IN THE COMPUTATION
OF BACKWAGES
1. transportation and emergency
allowances
2. vacation or service incentive leave
and sick leave
3. 13
th
month pay.

NOTE: facilities such as uniforms,
shoes, helmets and ponchos should NOT
be included in the computation of
backwages.
REASON: said items are given free,
to be used only during official tour of
duty not for private or personal use.

CIRCUMSTANCES THAT PREVENT
AWARD OF BACKWAGES:
1. death of the employee
2. physical and mental incapacity
3. business reverses
4. closure of business
5. reinstatement of dismissed employee
confinement in jail

Which takes precedence in
conflicts arising between employers
MANAGEMENT PREROGATIVE and the
employees right to security of tenure?
The employees right to security
of tenure. Thus, an employers
management prerogative includes the
right to terminate the services of the
employee but this management
prerogative is limited by the Labor Code
which provides that the employer can
terminate an employee only for a just
cause or when authorized by law. This
limitation is because no less than the
constitution recognizes and guarantees
employees right to security of tenure.
(Art. 279, Labor Code; Art. XIII, Sec. 3,
Constitution)

ART. 280. REGULAR AND CASUAL
EMPLOYMENT
REGULAR EMPLOYMENT - one wherein
an employee is engaged to perform
activities which are usually necessary or
desirable in the usual business or trade
of the employer.
- He is a regular employee at the point
of hiring.

Test of regularity: nature of
employment.

CASUAL EMPLOYMENT one wherein an
employee is engaged to perform
activities which are not necessary or
desirable in the usual trade or business
of the employer.
- becomes a regular employee after
one (1) year of service.
-
REGULAR EMPLOYEE VS.
PROJECT EMPLOYEE

PROJECT
EMPLOYEE
REGULAR
EMPLOYEE

A project employee is
one whose
employment is fixed
for a specific project
or undertaking the
completion of which
has been determined
at the time of the
engagement of the
employee. (See Art.
280 LC)

A regular
employee is one
engaged to perform
activities which are
usually necessary or
desirable in the usual
business or trade of
the employer



TEMPORARY EMPLOYMENT OR
EMPLOYMENT FOR A FIXED SPECIFIC
PERIOD - one wherein an employee is
engaged to work on a specific project or
undertaking which is usually necessary or
desirable in the usual business or trade
of the employer, the completion of
which has been determined at the time
of the engagement of the employee.
- He does not become a regular
employee. The employment is
coterminous with the specific
period.

SEASONAL EMPLOYMENT - one
wherein an employee is engaged to work
during a particular season on an activity
that is usually necessary or desirable in
the usual business or trade of the
employer.
Pakiao employees are considered
employees as long as the
employer exercises control over
the means by which such
workers are to perform their
work.

Employee is considered an
regular employee insofar as the
season to which he was
employed is concerned.
- during the off-season his
employment is merely
suspended not terminated
(Phil. Tobacco Flue Curring
and Drying Corp. vs. NLRC).

PROBATIONARY PERIOD OF
EMPLOYMENT - the period needed to
determine the fitness for the job, i .e.,
the time needed to learn the job.
It is the period during which the
employer may determine if the
employee is qualified for possible
inclusion in the regular force.
PURPOSE: To afford the employer an
opportunity to observe the fitness of a
probationary employee at work.
NOTE:The standard which the
probationary employee is to meet must
be made known by the employer to the
employee at the time of engagement.
The services of probationary employees
may be terminated for the same causes
as in the case of regular employee,
except that there is an additional ground
failure to meet the standard.

LIMITATIONS ON THE
EMPLOYERS POWER TO TERMINATE A
PROBATIONARY EMPLOYMENT
CONTRACT:
1. t
he power must be exercised in
accordance with the specific
requirements of the contract
[COMPLIANCE WITH SPECIFIC
REQUIREMENTS];
2. if a particular time is prescribed,
the termination must be within such
time and if formal notice is
required, then that form must be
used [WITHIN PARTICULAR
PRESCRIBED TIME];
3. the employers dissatisfaction
must be real and in good faith, not
feigned so as to circumvent the
contract or the law
[DISSATISFACTIONREAL AND IN
GOOD FAITH]; and
4. there must BE NO UNLAWFUL
DISCRIMINATION in the dismissal.

GENERAL RULE: Probationary
employment shall not exceed six months
from the date the employee started
working.

EXCEPTIONS:
1. when it is covered by an
apprenticeship agreement stipulating a
longer period; or
2. when the parties to an
employment contract agree otherwise,
such as when the same is established by
company policy or when the same is
required by the nature of the work to be
performed by the employee

EFFECT IF PROBATIONARY
EMPLOYEE IS ALLOWED TO WORK
BEYOND 6 MONTHS

If the probationary employee is
allowed to work beyond the period of 6
months or the agreed probationary
period, said employee becomes a regular
employee by operation of law.
Under the Labor Code, an
employee who is allowed to work after a
probationary period shall be considered
a regular employee. (Art. 281.)
ART. 282. TERMINATION BY
EMPLOYER

SECURITY OF TENURE - An
employer CANNOT terminate the
services of an employee EXCEPT for a
just cause or when authorized by law.
GUIDELINES TO DETERMINE THE
VALIDITY OF TERMINATION:
1. G
ravity of the offense
2. P
osition occupied by the employee
3. D
egree of damage to the employer
4. P
revious infractions of the same
offense
5. L
ength of service

A. JUST CAUSES [MaNaBaCA]:
1. Serious MISCONDUCT OR WILLFUL
DISOBEDIENCE by the employee of
the lawful orders of his employer or
representative in connection with his
work;
Misconduct- transgression of
some established and definite
rule of action, a forbidden act, a
dereliction of duty, willful in
character, and implies wrongful
intent and not mere error in
judgment. (Dept. of Labor
Manual, Sec. 4353.01)

2. Gross and habitual NEGLECT by the
employee of his duties; (Repeated
absenteeism and tardiness)

3. FRAUD OR WILLFUL BREACH by the
employee of the trust reposed in him
by his employer or duly organized
representative
Fraud must be committed
against the employer or his
representative and in connection
with the employees work.
((Dept. of Labor Manual, Sec.
4353.01 [3])

4. 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
Conviction or prosecution is not
required.

5. Other causes ANALOGOUS to the
foregoing.
A cause must be due to the
voluntary or willful act or
omission of the employee.
(Nadura v. Benguet
Consolidated; G.R. No. L-17780)

DUE PROCESS TO BE OBSERVED
BY THE EMPLOYER - For termination of
the employment based on the any of the
just causes for termination, the
requirements of due process that an
employer must comply with are: (TWIN
NOTICES)

1. Written NOTICE should be served
to the employee specifying the
ground or grounds for termination
and giving the said employee
reasonable opportunity within
which to explain;
2. A HEARING OR CONFERENCE
should be held during which the
employee concerned, with the
assistance of counsel, if the
employee so desires, is given the
opportunity to respond to the
charge, present his evidence and
present the evidence presented
against him;
3. A WRITTEN NOTICE OF
TERMINATION, if termination is
the decision of the employer,
should be served on the employee
indicating that upon due
consideration of all the
circumstances, grounds have been
established to justify his
termination.
For termination of
employment based on
authorized causes, the
requirements of due process
shall be deemed complied with
upon service of a written notice
to the employee and the
appropriate Regional office of
the Department of Labor and
employment at least thirty days
before the effectivity of the
termination specifying the
grounds for termination.

NOTE: Under the so-called WENPHIL
DOCTRINE if the services of the
employee was terminated due to a just
or authorized cause but the affected
employees right to due process has
been violated, the dismissal is legal but
the employee is entitled to damages by
way of indemnification for the violation
of the right.

SERRANO vs. ISETANN et. al.
abandoned the WENPHIL
DOCTRINE and ruled that if the
employee is dismissed under just
or authorized cause but the
affected employees right to due
process has been violated, his
dismissal becomes ineffectual.
Therefore, the employee is
entitled to backwages from the
time he was dismissed until the
determination of the justness of
the cause of the dismissal.

AGABON vs. NLRC (Nov. 17,
2004) abandoned the Serrano
doctrine and REINSTATED THE
WENPHIL DOCTRINE. The
sanctions, however must be
stiffer than that imposed in
Wenphil.

PREVENTIVE SUSPENSION when
there is an imminent threat to the lives
and properties of the employer, his
family and representatives as well as the
offenders co-workers by the continued
service of the employee then he may be
placed under preventive suspension
pending his investigation, leading to
termination.

preventive suspension should not
last for more than thirty (30)
days. The employee should be
made to resume his work after
30 days.

- it can be extended provided the
employees wages are paid after the
30 day period.

ARTS. 283-284.

B. AUTHORIZED CAUSES OF
TERMINATION BY THE EMPLOYER:

1. installation of labor-saving devices
(AUTOMATION)



2. REDUNDANCY (superfluity in the
performance of a particular work)

redundancy, for purposes of the
Labor Code, exists where the
services of an employee are in
excess of what is reasonably
demanded by the actual
requirements of the enterprise.
(Wishire File Co. Inc. vs. NLRC)

Reorganization as a cost-saving
device is acknowledged by
jurisprudence. An employer is not
precluded from adopting a new
policy conducive to a more
economical and effective
management, and the law does not
require that the employer should
be suffering financial losses before
he can terminate the services of
the employee on the ground of
redundancy (DOLE PHILIPPINES,
INC et al., vs. NATIONAL LABOR
RELATIONS COMMISSION et al.)

3. RETRENCHMENT to prevent losses
(there is excess of employees and
employer wants to prevent financial
losses)

CONDITIONS UNDER WHICH AN
EMPLOYER MAY RETRENCH:
(a) substantial losses which are not
merely de minimis in extent;
(b) imminence of such substantial
losses;
(c) retrenchment would effectively
prevent the expected and additional
losses;
(d) the alleged losses and expected
losses must be proven by sufficient and
convincing evidence. (NDC-GUTHRIE
PLANTATIONS, INC., vs. NATIONAL LABOR
RELATIONS COMMISSION, ET. AL)

4. closing or CESSATION OF
OPERATION of the establishment or
undertaking UNLESS the closing is for
the purpose of circumventing the
provisions of the Labor Code.

5. INSTALLATION of labor saving
devices(Automation, Robotics)


6. DISEASE

a. the disease is incurable
within 6 months and the
continued employment of
the employee is prohibited
by law or prejudicial to his
health as well as to the
health of his co-employees

b. with a certification from
public heath officer that the
disease is incurable within 6
months despite due
medication and treatment.
Before an employer could
dismiss an employee based on a
disease, Section 8 of Rule 1, Book VI
of the Omnibus Rules Implementing
the Labor Code requires 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 even with proper
medical treatment. (Cathay Pacific
Airways vs. NLRC and Martha
Singson)
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. (SEC. 35, RA
8504, HIV/AIDS LAW)

CAUSE OF
TERMINATION
SEPARATION
PAY
Automation Equivalent to at
least one month pay or
at least one month pay
for every year of
service, whichever is
higher
Redundancy Equivalent to at
least one month pay or
at least one month pay
for every year of
service, whichever is
higher
Retrenchment Equivalent to one
month pay or at least
one-half month pay for
every year of service
Closures or
cessation of
operations not
due to serious
business losses or
financial reverses
Equivalent to one
month pay or at least
one-half month pay for
every year of service
(If due to severe
financial losses, no
separation pay due.)
Disease Equivalent to at
least one-month salary
or to month salary
for every year of
service, whichever is
greater, a fraction of at
least 6 months shall be
considered one (1)
whole year.



NOTE: ARTICLE 283 governs the
grant of separation benefits in case of
closures or cessation of operation of
business establishments NOT due to
serious business losses or cessation of
operation [North Davao Mining Corp. vs.
NLRC, et al]. Therefore, the employee
is not entitled to such benefit if the
closure was due to SERIOUS BUSINESS
LOSSES.


When termination of employment
is brought by the failure of an employee
to meet the standards of the employer in
case of probationary employment, it
shall be sufficient that a written notice
is served the employee within a
reasonable time from the effective date
of termination.


When termination is brought
about by the completion of the contract
or phase thereof, no prior notice is
required






ART. 285. TERMINATION BY
EMPLOYEE

TERMINATION BY THE EMPLOYEE:

a. WITHOUT JUST CAUSE- by serving a
WRITTEN NOTICE on the employer at
least one month in advance. The
employer upon whom no such notice was
served may hold the employee liable for
damages.
b. WITH JUST CAUSE - An employee may
put an end to establish WITHOUT
SERVING ANY NOTICE on the employer
for any of the following just causes
[SUCA]:

1. SERIOUS INSULT by the
employer or his representative
on the hour 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.


ART. 287. RETIREMENT

RETIREMENT AGE - The age of
retirement is that specified in the CBA or
in the employment contract. In the
absence of a retirement plan or
agreement providing for retirement
benefits of employees in an
establishment, an employee upon
reaching the age of 60 years or more,
but not beyond 65 years which is hereby
declared as the compulsory retirement
age, who has served at least 5 years in
said establishment.
The rule is different with respect
to underground mining employees
whose optional retirement age is
50-60 provided they have at least
served for a period of 5 years (Art.
287 as amended by RA 8558).

BENEFITS- A retiree is entitled to
a retirement pay equivalent to at least
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:
15 days plus 1/12 of the 13
th

month pay and
the cash equivalent of NOT more
than 5 days of service incentive
leaves.
(22.5 days per year of service)

Under Section 26, R.A. No. 4670,
otherwise known as the Magna Carta for
Public School Teachers, public school
teachers having fulfilled the age and
service requirements of the applicable
retirement laws shall be given ONE
RANGE SALARY RAISE upon retirement,
which shall be the basis of the
computation of the lump sum of the
retirement pay and the monthly benefit
thereafter.

NOTE: Exempted from the payment
of retirement pay are retail, service and
agricultural establishments or operations
employing NOT more than ten (10)
employees or workers.


Age Retirement
60-65 Optional but the
employee must have served
at least 5 years
65 Compulsory (no need
for five years of service)













BOOK SEVEN


TRANSITORY AND FINAL
PROVISIONS


TITLE II
PRESCRIPTION OF OFFENSES AND
CLAIMS


ART. 291. MONEY CLAIMS

PERIODS OF PRESCRIPTION

Cause Period of
Prescription
MONEY
CLAIMS
3 years from the
accrual of the causes of
action
ULP 1 year from the
accrual of the cause of
action
ILLEGAL
DISMISSAL
4 years from the
accrual of the cause of
action
REINST
ATEMENT
4 years


























NOTE: The period of prescription
mentioned under Article 292 of the
Labor Code refers to and is limited to
money claims, all other cases of injury
to rights of a workingman being
governed by the Civil Code. Hence,
REINSTATEMENT prescribes in 4 years.

VENUE: The Regional Arbitration Branch
where the workplace is located (NLRC
Rules of Procedure.












































Appendices

SPECIAL LAWS

SOCIAL SECURITY SYSTEM
RA1161 as amended by RA 8282

COVERAGE:

Compulsory:
1. Compulsory upon all employees
not over 60 years of age and
their employers
2. In case of domestic helpers,
their monthly income should not
be less than one thousand pesos
Limitation: Sec. 9 (a)
a. Any benefit already earned
by the employees under
private benefit plans existing
at the time of the approval
of the Act shall not be
discontinued, reduced or
otherwise impaired
b. Private plans which are
existing and in force at the
time of compulsory coverage
shall be integrated with the
plan of the SSS in such a way
where the employers
contribution to his private
plan is more than that
required of him in this Act,
he shall pay to the SSS only
the contribution required of
him and he shall continue his
contribution to such private
plan less his contribution to
the SSS so that the
employers total
contribution to his benefit
plan and and to the SSS
shall be the same as his
contribution to his private
benefit plan before any
compulsory coverage.
c. Any changes, adjustments,
modifications, eliminations
or improvements in the
benefits to be available
under the remaining private
plan, which may be
necessary to adopt by reason
of the reduced contribution
thereto as a result of the
integration shall be subject
to agreements between the
employers and the
employees concerned
d. The private benefit plan
which the employer shall
continue for his employees
shall remain under the
employers managementand
control unless there is an
existing agreement to the
contrary.
e. Nothing in this Act shall be
construed as a limitation on
the right of employers and
employees to agree on and
adopt benefits which are
over and above those
provided under this act

3. Compulsory upon such self- employed
persons as may be determined by the
Commission including but not limited to
the following (Sec 9-A): (APAPI)
1. All self employed
professionals
2. Partners and single
proprietors
3. Actors and actresses
directors, scriptwriters and
news correspondents who do
not fall within the definition
of the term employee in
Section 8 (d) of this Act
4. Professional athletes,
coaches, trainers, and
jockeys
5. Individual farmers and
fishermen

Voluntary:

1. Spouses who devote full time to
managing the household and
family affairs, unless they are
also engaged in other vocation or
employment which is subject to
mandatory coverage, may be
covered by the SSS on a
voluntary basis.
2. Filipinos recruited by foreign
based employers for employment
abroad may be covered by the
SSS on a voluntary basis
3. Employees separated from
employment may continue to
pay contributions to maintain his
right to full benefits (Sec. 11)
4. Self-employed with no income
(11-A)

BY AGREEMENT:

Any foreign government,
international organization, or their
wholly-owned instrumentality employing
workers in the Philippines, may enter
into an agreement with the Philippine
government for the inclusion of such
employees in the SSS except those
already covered by their respective civil
service retirement systems (Sec.8 (j (4)).

EXCLUDED EMPLOYMENT (SEC. 8 (J)):
1. Employment purely casual and not
for the purpose of occupation or
business of the employer
2. Service performed on or in
connection with an alien vessel by
an employee if he is employed when
such vessel is outside the
Philippines.
3. Service performed in the employ of
the Philippine government or
instrumentality or agency thereof.
4. Service performed in the employ of
a foreign government, international
organization, or their wholly owned
instrumentality;
5. Services performed by temporary
employees, which may be excluded
by regulation of the commission.

EFFECTIVE DATE OF COVERAGE:
1. Employer: It shall take effect on
the first day of his operation
2. Employee: On the day of his
employment
3. Self-employed: It shall take
effect upon his registration with
SSS

Definition of Terms

EMPLOYER
Any person natural or juridical,
domestic or foreign, who carries on in
the Philippines, any trade business,
industry undertaking or activity of any
kind and uses the services of another
person who is under his orders as regards
the employment except the Government
and any of its political subdivisions,
branches or instrumentalities, including
corporations owned or controlled by the
Government
Self- employed person shall be
both the employer and employee at the
same time

EMPLOYEE

Any person who performs
services for an employer in which either
or both mental and physical efforts are
used and who receives compensation for
such services, where there is an
employer- employee relationship.
Self- employed person shall be
both the employer and employee at the
same time

DEPENDENTS:

1. The legal spouse entitled by law
to receive support from the
member
2. the legitimate, legitimated or
legally adopted and illegitimate
child who is unmarried, not
gainfully employed and has not
reached 21 years of age or if 21
years of age, he is congenitally
incapacitated or while still a
minor has been permanently
incapacitated and incapable of
self- support, physically and
mentally and
3. the parent who is receiving
regular support from the
member

BENEFICIARIES

a. The dependent spouse until he
or she remarries, the
dependent legitimate,
legitimated or legally adopted
and illegitimate children who
shall be the primary
beneficiaries of the member
b. PROVIDED that the dependent
illegitimate children shall be
entitled to 50% of the share of
the legitimate, legitimated or
legally adopted children.
c. PROVIDED FURTHER in the
absence of the legitimated,
legally adopted or legitimate
children, illegitimate children
shall be entitled to 100% of
the benefits.
d. IN THEIR ABSENCE, the
dependent parents who shall
be the secondary
beneficiaries.
e. IN THE ABSENCE OF ALL of
the foregoing, any person
designated by the covered
employee as secondary
beneficiary.

Benefits

1. Monthly pension

2. Dependents pension
It shall be paid for each dependent
child conceived on or before the
date of the contingency but not
exceeding five, beginning with the
youngest without substitution
PROVIDED that where there are
legitimate and illegitimate children,
the former shall be preferred.

3. Retirement benefits
A member who has paid at least 120
monthly contributions prior to
the semester of retirement and
who:
a. has reached the age of
60 years and is already
separated from
employment or has
ceased to be self-
employed
b. has reached the age of
65 years, shall be
entitled for as
A covered member who is 60 years
old not qualified under No. 1
shall still be entitled to
retirement benefits PROVIDED,
he is separated from
employment and is not
continuing payment of
contributions to the SSS on his
own.

SUSPENSION OF MONTHLY PENSION:
Upon the re-employment or
resumption of self-employment
of a retired employee who is
less than 65 years old.

4. Death Benefits

5. Permanent disability benefits

6. Funeral Benefit
A funeral grant equivalent to Twelve
thousand pesos (P12, 000.00) shall
be paid, in cash or in kind, to help
defray the cost of funeral expenses
upon the death of a member,
including permanently totally
disabled member or retiree.

7. Sickness benefit
Requirements:
a. A member must have paid at
least 3 monthly contributions
in the twelve month period
immediately preceding the
semester of sickness or injury
b. and is confined therefor for
more than three days in a
hospital or elsewhere with the
approval of the SSS

8. Maternity Leave Benefit
It shall be paid to a female
employee who has paid at least 3
monthly contributions in the twelve
month period immediately preceding
the semester of her childbirth or
miscarriage PROVIDED:
a. That the employee shall have
notified her employer of her
pregnancy and the probable
date of her childbirth which
notice shall be transmitted to
the SSS.
b. The full payment shall be
advanced by the employer
within 30 days from the filing
of the maternity leave
application
c. Payment of daily maternity
benefits shall be a bar to the
recovery of sickness benefits
d. The maternity benefits
provided under this section
shall be paid only for the first
4 deliveries or miscarriages
e. The SSS shall immediately
reimburse the employer 100%
of the benefits advanced by
the latter
f. If no contributions were
remitted by the employer or
no notice was given to SS, the
employer shall be liable for
damages equivalent to the
benefits which said employee
member would otherwise have
been entitled to.

Non-transferability of benefits
(Sec. 15)
Such benefits are not transferable
and no power of attorney or other
document executed by those
entitled thereto, in favor of any
agent, attorney or any other person
for the collection thereof on their
behalf shall be recognized, except
when they are physically unable to
collect personally such benefits.

Sources of Fund
1. Collection:
Beginning on the last day of the
month when an employees
compulsory coverage takes effect
and every month thereafter during
his employment, his employer shall
pay the employers contribution and
shall deduct and withhold from such
employees monthly salary the
employees contribution.
The same time of collection for
self-employed
2. Remittance:
It shall be remitted within the first
10 days of each calendar month
following the month for which they
are applicable or within such time
as the Commission may prescribe.
For self-employed they shall
remit their contributions quarterly
on such dates and schedules as the
Commission may require.

(NOTE: SEE TABLE ON SOCIAL WELFARE
LEGISLATION FOR COMPARISON WITH
GSIS)





GOVERNMENT SERVICE
INSURANCE SYSTEM
RA 8291

COMPULSORY MEMBERSHIP (Sec. 3)
Compulsory for all employees (as
defined in Section 2 (d) of GSIS Law)
receiving compensation who have not
reached the compulsory retirement age,
irrespective of employment status,
EXCEPT MEMBERS OF THE ARMED
FORCES AND THE PNP, subject to the
condition that they must settle first their
financial obligations with the GSIS and
contractuals who have no employer and
employee relationship with the agencies
they serve.

EXCEPT FOR THE MEMBERS OF
THE JUDICIARY AND CONSTITUTIONAL
COMMISSIONS WHO SHALL HAVE LIFE
INSURANCE ONLY, all members of the
GSIS shall have life insurance,
retirement and all other social security
protection such as disability,
survivorship, separation and
unemployment benefits.

COMPUTATION OF SERVICE
The computation of service for
the purpose of determining the amount
of benefits payable shall be FROM THE
DATE OF THE ORIGINAL APPOINTMENT/ ELECTION
INCLUDING PERIODS OF SERVICE AT DIFFERENT
TIMES UNDER THE AUTHORITY OF THE REPUBLIC
OF THE PHILIPPINES AND THOSE THAT MAY BE
PRESCRIBED BY THE GSIS IN COORDINATION
WITH THE CIVIL SERVICE COMMISSION.
All service credited for
retirement, resignation or separation for
which corresponding benefits have been
awarded shall be EXCLUDED in the
computation of service in case of
reinstatement in the service of an
employer and subsequent retirement or
separation which is compensable.

Definition of Terms

Employer:
The national government, its
political subdivisions, branches,
agencies or instrumentalities
including GOCCs and financial
institutions with original charters,
the constitutional commissions and
the judiciary

Employee or Member:
Any person receiving compensation
while in the service of an employer
as defined herein, whether by
election or appointment,
irrespective of status appointment,

Dependents:
1. The legitimate spouse dependent
for support upon the member or
pensioner
2. The legitimate, legitimated
legally adopted child, including
the illegitimate child who is:
a. unmarried,
b. not gainfully employed,
c. not over the age of
majority,
d. or is over the age of
majority but
incapacitated and
incapable of self-support
due to a mental or
physical defect acquired
prior to age of majority
3. Parents dependent upon the
member for support

Primary Beneficiary
The legal dependent spouse until
he/she remarries

Secondary Beneficiary
The dependent parents and subject
to the restrictions on dependent
children, the legitimate descendants

Disability
Any loss or impairment of the normal
functions of the physical and/or
mental faculty of a member which
reduces or eliminates his/her
capacity to continue with his/her
current gainful occupation or engage
in any other gainful occupation.

Total Disability
Complete incapacity to continue
with his present employment or
engage in any gainful occupation due
to the loss or impairment of the
normal functions of the physical
and/or mental faculties of the
member
Permanent Total Disability
Accrues or arises when recovery
from impairment mentioned in
Section 2 (Q) (defining disability) is
medically remote

Temporary Total Disability
Accrues or arises when impaired
physical and/or mental faculties can
be rehabilitated and/or restored to
their normal functions

Permanent Partial Disability
Accrues or arises upon the
irrevocable loss or impairment of
certain portion/s of the physical
faculties, despite which the member
is able to pursue a gainful
occupation.

Sources of Fund

Contributions
1. It shall be mandatory for the
member and the employer to
pay the monthly contributions.
2. The employer shall include in its
annual appropriation the
necessary amounts for its share
of the contributions indicated
above PLUS any additional
premiums that may be required
on account of the hazards or
risks of its employees
occupation.
3. Failure to do so shall subject the
employers to penal or
administrative sanctions.

Collection and Remittance
1. Collection: The employer shall
report to the GSIS all pertinent
information regarding the
employee and shall deduct each
month from the salary or
compensation of each employee
the contribution payable by him.
2. Remittance: The employer shall
remit directly to the GSIS the
employees and employers
contributions within the first ten
(10) days of the calendar month
following the month to which the
contributions apply.
Benefits

1. SEPARATION BENEFITS (SEC.
11):
Separation benefits are given to
the:
a. The member resigns or
separates from the service
after he has rendered at
least three (3) years of
service but less than fifteen
(15) years or
b. The member resigns or
separates from office after
he has rendered at least
fifteen (15) years of service
and is below sixty (60) years
of age at the time of
resignation or separation.

Separation benefits likewise
include:

UNEMPLOYMENT OR
INVOLUNTARY SEPARATION
BENEFITS (Sec. 12): shall be
paid to a permanent employee
who is involuntarily separated
from the service due to the
abolition of his office or position
usually resulting from
reorganization PROVIDED that
he has been paying integrated
contributions for at least one (1)
year prior to contributions.

2. RETIREMENT BENEFITS:

Conditions for entitlement (Sec.
13-A):
Member has rendered at least 15
years of service
He is at least 60 years of age at
the time of retirement
He is not receiving a monthly
pension benefit from
permanent total disability

3. PERMANENT DISABILITY
BENEFITS
General Conditions for
Entitlement (Sec. 15):
The member must have suffered
permanent disability for reasons
NOT DUE to:
1. Grave misconduct
2. Notorious negligence
3. Habitual intoxication, or
willful intention to kill
himself or another.

Specific conditions for
entitlement (Sec. 16):
He shall receive monthly income
benefit for life equal to the basic
monthly pension effective from
the date of the disability.
PROVIDED:

1. He is in the service at the
time of the disability
2. IF SEPARATED FROM
SERVICE, he has paid at
least 36 monthly
contributions within the 5
year period immediately
preceding the disability or
has paid a total of at least
180 monthly contributions
prior to the disability
3. IF HE WAS IN SERVICE AND
HAS PAID A TOTAL OF AT
LEAST 180 MONTHLY
CONTRIBUTIONS, in addition
to the monthly income
benefit, he shall receive a
cash payment equivalent to
18 times his basic monthly
pension
4. However, a member cannot
enjoy the monthly income
benefit for permanent
disability and the old age
retirement simultaneously.

Unless the member has reached
the minimum retirement age,
disability benefits shall be
SUSPENDED when:

1. He is reemployed
2. He recovers from his
disability as determined by
the GSIS, whose decision
shall be final and binding
3. He fails to present himself
for medical examination
when required by the GSIS
PERMANENT PARTIAL
DISABILITY (Sec. 17):
He must satisfy specific
conditions 1-3.
4. TEMPORARY DISABILITY
BENEFITS (Sec. 18)

The member shall be entitled to
75% of the current daily
compensation for each day or
fraction thereof of temporary
disability benefit not exceeding
120 days in one calendar year
after exhausting all sick leave
credits and collective bargaining
agreement sick leave benefits.
PROVIDED:
1. He is in service at the time
of his disability
2. If separated, he has
rendered at least 3 years of
service and has paid at least
6 monthly contributions in
the 12- month period
immediately preceding the
disability
HOWEVER, a member cannot
enjoy temporary total disability benefit
and sick leave pay simultaneously
IN ADDITION, If the disability
requires more extensive treatment that
lasts beyond 120 days, the payment of
the temporary total disability benefit
may be extended by the GSIS but not to
exceed a total of 240 days
LASTLY, and in no case shall the
benefit be less than 70 pesos a day.

5. SURVIVORSHIP BENEFITS:
For purposes of survivorship
benefits, legitimate children
shall include legally adopted
and legitimated children.

Death of a Member
Upon the death of a member, the
primary beneficiaries shall be entitled
to:

1. SURVIVORSHIP PENSION,
PROVIDED:

a. Member was in service at
the time of his death
b. If separated from service,
has rendered at least 3
years of service and paid
36 monthly contributions
with the 5- year period
immediately preceding his
death or has paid a total of
at least 180 monthly
contributions.

2. SURVIVORSHIP PENSION PLUS A
CASH PAYMENT EQUIVALENT TO
100% OF HIS AVERAG`E
MONTHLY COMPENSATION FOR
EVRY YEAR OF SERVICE
PROVIDED: The deceased was in
the service at the time of his
death with at least three years of
service

3. SURVIVORSHIP PENSION PLUS A
CASH PAYMENT EQUIVALENT TO
100% OF HIS AVERAGE MONTHLY
COMPENSATION FOR EVERY
YEAR OF SERVICE HE PAID
CONTRIBUTIONS BUT NOT LESS
THAN P12, 000
PROVIDED That the deceased has
rendered at least 3 years of
service prior to his death but does
not qualify under 1 and 2.

ORDER OF PAYMENT OF THE
SURVIVORSHIP PENSION

1. When the dependent spouse is
the only survivor, he/shall
receive the basic survivorship
pension for life or until he/she
remarries.]

2. When only dependent children
are the survivors, they shall be
entitled to the basic
survivorship pension for as long
as they are qualified, plus the
dependent childrens pension.

3. When the survivors are the
dependent spouse and the
dependent children, the
dependent spouse shall receive
the basic survivorship pension
for life or until he/she
remarries, and the dependent
children shall receive the
dependents pension.





IN THE ABSENCE OF PRIMARY
BENEFICIARIES, THE SECONDARY
BENEFICIARIES SHALL BE ENTITLED
TO:
1. Cash payment equivalent to
100% of his average monthly
compensation for each year of
service he paid contributions,
but not less than P12,000
PROVIDED that the member is in
service at the time of his death
and has at least 3 years of
service.
2. In the absence of secondary
beneficiaries , the benefits
under this paragraph shall be
paid to the legal heirs


6. FUNERAL BENEFITS:

It shall not be less than twelve
thousand pesos (P12,000.00)
PROVIDED that it shall be
increased to at least eighteen
thousand pesos (P18,000.00)
after five years and shall be paid
upon death.

7. LIFE INSURANCE BENEFITS

All employees except members
of the AFP and the PNP shall be
compulsorily covered with life
insurance.

Adjudication of Claims and Disputes

PRESCRIPTION OF CLAIMS
Claims for benefits under the Act
except for life and retirement shall
prescribe AFTER 4 YEARS FROM THE
DATE OF THE CONTINGENCY.

JURISDICTION
GSIS shall have the exclusive and
original jurisdiction to settle any dispute
arising under the Act and any other laws
administered by the GSIS.
Appealable under Rule 43 and 45
Of the 1997 Rules of Civil Procedure. The
appeal shall not stay the execution of
the order or award unless ordered by the
Boards, CA, or SC and the appeal shall be
without prejudice to the special civil
action of certiorari when proper.