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1
MEMORY AID IN LABOR LAW
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(Repealed by National Health Insurance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
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MEMORY AID IN LABOR LAW
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
c.
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MEMORY AID IN LABOR LAW
c.
d.
any
b.
e.
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
RELATIONS COMMISSION
LABOR
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MEMORY AID IN LABOR LAW
&
policy
3. employer
and
management
sectornominated by the Employers
Confederation
of
the
Philippines (ECOP)
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.
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
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.
Three
(3)
sectors
are
represented in the composition
of the NLRC.
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
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MEMORY AID IN LABOR LAW
3.
B.
CONTEMPT CASES
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
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MEMORY AID IN LABOR LAW
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.
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.
ART. 218.
COMMISSION
POWERS OF THE
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MEMORY AID IN LABOR LAW
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MEMORY AID IN LABOR LAW
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;
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MEMORY AID IN LABOR LAW
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.
ART. 222
Prohibits
the
payment
of
attorneys fees only
when it is effected
through
forced
contribution from the
workers from their
own
funds
as
PURPOSE: to
fix the limit on the
amount
of
attorneys
fees.
The
victorious
party may recover
in
any
administrative or
judicial
proceeding.
distinguished
from
union funds
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
APPEAL:
WITHIN
WHICH
TO
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MEMORY AID IN LABOR LAW
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.
Where 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.
The intention of the
lawmakers is to make the
bond
an
indispensable
requisite for the perfection
of an appeal by the
employer.
3. Appeal fee of P150;
4. Proof of service - furnish the
other party with a copy of the
memo of appeal.
Failure to give a copy of
the appeal to the appellee
within 10 days is not fatal IF
the
latter
was
not
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MEMORY AID IN LABOR LAW
ART 224.
EXECUTION
DECISIONS, ORDER, OR AWARDS
OF
TITLE III
BUREAU OF LABOR RELATIONS
ART. 226.
RELATIONS
BUREAU
OF
LABOR
Jurisdiction
over
labormanagement
problems
or
disputes is also exercised by
other offices such as the DOLE
regional offices, and the Office
of the Secretary, NLRC, POEA,
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MEMORY AID IN LABOR LAW
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 NONAGRICULATURAL.
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 selforganization, 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
DO 40-03)
Other related labor
disputes shall include any
between a labor organization
2 Rule XI
relations
conflict
and the
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MEMORY AID IN LABOR LAW
WHERE
FILED
FORMAL
REQUIREMENTS
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
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MEMORY AID IN LABOR LAW
SUMMARY
OF
RULES
ON
INTRA/INTER-UNION DISPUTES (Rule XI
DO 40-03)
MODES OF APPEAL IN INTRA/INTERUNION DISPUTES (Rule XI DO 40-03)
1. Under oath
HOW (formal
2. Consist of a
requirements)
PERIOD
TO WHOM
APPEALABLE
WHERE FILED
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
Within 10 days from
receipt of decision
1. Bureau of Labor
Relationsif the case
originated from the Med
Arbiter/Regional
Director
2. Sec. Of Laborif the
case originated from the
Bureau
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
EMPLOYEE RELATIONSHIP:
-
EMPLOYER-
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MEMORY AID IN LABOR LAW
OF
VALID
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
16
MEMORY AID IN LABOR LAW
to
until
minimize
union
the proper time
ART
233.
COMMUNICATION
PRIVILEGED
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.
TITLE IV
ON
LABOR ORGANIZATIONS
CHAPTER I
REGISTRATION AND CANCELLATION
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MEMORY AID IN LABOR LAW
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;
the
minutes
of
the
organizational
meeting(s)
and the list of employees
who participated in the said
meeting(s);
file
application
for
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MEMORY AID IN LABOR LAW
REQUIREMENTS
BEFORE
FEDERATION CAN BE ISSUED
CERTIFICATE OF REGISTRATION:
A
A
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MEMORY AID IN LABOR LAW
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.
Independent
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.
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MEMORY AID IN LABOR LAW
INDEPENDENTLY
REGISTERED
of
b. EFFECT OF
DISAFFILIATION
TO THE UNION
[local]
c. EFFECT OF
DISAFFILIATION
TO THE CBA
a.HOW
AFFILIATE
TO
-by signing
affiliation
contract
UNREGISTERED
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MEMORY AID IN LABOR LAW
d. ENTITLEMENT
TO UNION DUES
AFTER
DISAFFILIATION
WHEN TO DISAFFILIATE
DISAFFILIATION
BY
22
MEMORY AID IN LABOR LAW
OF
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
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.
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]
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MEMORY AID IN LABOR LAW
ART
239.
CANCELLATION
REGISTRATION
GROUNDS
FOR
OF
UNION
ELECTION of officers,
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.
WHERE TO FILE
Regional Director who has
jurisdiction over the place
where respondent principally
operates (30 days to decide).
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MEMORY AID IN LABOR LAW
B. FOR:
1. Federations
2. National or Industry unions
3. Trade union centers
WHERE TO FILE
Bureau Director ( 30 days to
decide)
RULES
ON
ADMINISTRATIVE
CANCELLATION OF CERTIFICATE OF
REGISTRATION OF LLOs DUE TO NONCOMPLIANCE WITH THE REPORTORIAL
REQUIREMENTS:
WHEN
PROPER
WHO MAY
FILE THE
PETITION
THREENOTICE
REQUIRE
MENT
1st 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
2nd Notice
Where no response is
received by the Bureau
within 30 days from the
release of the 1st 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
3rd Notice
Where no response is again
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MEMORY AID IN LABOR LAW
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
RIGHTS OF THE UNION MEMBERS:
THE
In general, a
select its own
person has an
membership in
union is free to
members, and no
absolute right to
a union.
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MEMORY AID IN LABOR LAW
TO
should
specifically
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.
b. CONSENT
May
not
be
deducted from the
salaries of the union
members
without
the written consent
of
the
workers
affected
- non-members of the
bargaining
agent
(union)
for
the
enjoyment of the
benefits under the
CBA.
- May be deducted
from the salary of
employees
without
their consent.
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MEMORY AID IN LABOR LAW
CHAPTER III
RIGHTS OF LEGITIMATE LABOR
ORGANIZATIONS
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.
(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
nonmembers
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.
b.
EXCEPTION TO
SUCH REQUIREMENT
-no exceptionwritten
resolution
is
mandatory
at
all
instances.
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
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MEMORY AID IN LABOR LAW
GOVERNMENT
OWNED OR
CONTROLLED
CORPORATIONS
WITHOUT
ORIGINAL
CHARTER
- 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.
- 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.
2.
Employees
of
international
organizations with immunities (ICMC vs.
Calleja)
3. Managerial employees
whose functions are normally
considered as policy-making or
managerial
(Metrolab
(Rosario
Bros.
vs
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MEMORY AID IN LABOR LAW
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,
30
MEMORY AID IN LABOR LAW
c. PURPOSE OF
DEFINITION
- to determine w/n
certain employees are
covered by Book III of
the LC on Conditions of
- to determine an
employees
eligibility
in
joining/forming a
labor union.
Employment.
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)
31
MEMORY AID IN LABOR LAW
TITLE VI
UNFAIR LABOR PRACTICES
CHAPTER I
CONCEPT
ART. 247. UNFAIR LABOR PRACTICES
NATURE
PRACTICES:
OF
UNFAIR
LABOR
restrain,
coerce,
discriminate against, or
unduly interfere
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
32
MEMORY AID IN LABOR LAW
OF
UNFAIR
LABOR
CRIMINAL CASE
A. PERSONS LIABLE
1. Officers and 1.
Agents
and
agents
of officers
who
employer or
participated
or
2. Labor
authorized or ratified
organization,
the act.
officers
and 2.
Agents,
agents
representatives, members
of the government board,
including
ordinary
members
B. JURISDICTION
-Labor Arbiters of -MTC/RTC as the case
the NLRC
may be.
C. QUANTUM OF PROOF NEEDED
-substantial
-beyond reasonable doubt
evidence
[subject to prosecution
and punishment]
D. PRESCRIPTIVE PERIOD
- one year from - one year from the
the accrual of the accrual of the ULP act,
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 selforganization 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;
33
MEMORY AID IN LABOR LAW
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
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. 19) must have a relation to the
employees exercise of their to selforganization. Anti-union or antiorganization motive must be proved
34
MEMORY AID IN LABOR LAW
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.
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 SELFORGANIZATION)
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
35
MEMORY AID IN LABOR LAW
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.
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.
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.
36
MEMORY AID IN LABOR LAW
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 selforganization. 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. Officers and agents of employer
2. Labor organization, officers and
agents
3. Agents
and
officers
who
participated or authorized or
ratified the act.
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:
37
MEMORY AID IN LABOR LAW
IN
COLLECTIVE
38
MEMORY AID IN LABOR LAW
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)
for
an
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
39
MEMORY AID IN LABOR LAW
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 60DAY 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
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
40
MEMORY AID IN LABOR LAW
ART. 253A.
TERMS OF A
COLLECTIVE BARGAINING AGREEMENT
(CONTRACT BAR RULE)
REASON:
injunction contradicts the
constitutional preference for voluntary
modes of dispute settlement
to
the
the
same
41
MEMORY AID IN LABOR LAW
THINGS TO CONSIDER IN
DETERMINING THE COMMUNITY
OF INTEREST DOCTRINE:
7. history
of
bargaining
collective
42
MEMORY AID IN LABOR LAW
CERTIFICATION
ELECTION
CERTIFICATION
ELECTION
A. NATURE
- separate and distinct
from
a
consent
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;
vs.
CONSENT
CONSENT
ELECTION
- a separate and
distinct process
and has nothing
to do with the
import
and
effect
of
a
certification
election
- 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.
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.
- any time,
43
MEMORY AID IN LABOR LAW
subject
however to
the
ONEELECTIONPER-YEAR
RULE.
RUN-OFF ELECTION:
Held
in
instances:
two
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
NO UNION is also
a choice
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.
44
MEMORY AID IN LABOR LAW
45
MEMORY AID IN LABOR LAW
EXAMPLES
BARGAINING:
OF
BAD
FAITH
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
46
MEMORY AID IN LABOR LAW
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.
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 .
SUBMISSION
AGREEMENT
Lack of jurisdiction
Grave abuse of discretion
Violation of due process
Denial of substantial justice
Erroneous interpretation of the law
47
MEMORY AID IN LABOR LAW
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
48
MEMORY AID IN LABOR LAW
GROUNDS
FOR
THE
DECLARATION OF STRIKE:
1. deadlock in collective bargaining
(ECONOMIC); and/or
and
strike
vote
maybe
dispensed
with.
They
may
strike immediately.
ULP STRIKE
[POLITICAL]
A. NATURE
- A voluntary strike - An involuntary
because
the strike; the labor
employee
will organization
is
declare a strike to forced to go on
compel management strike because of
to grant its demands. the
ULP
committed
against them by
the employer. It
is an act of selfdefense since the
employees
are
being pushed to
the wall and their
only remedy is to
stage a strike.
B. INITIATED BY:
The
collective - either
bargaining agent of a.
Collective
the
appropriate bargaining agent
bargaining unit can or
declare an economic b. the legitimate
strike.
labor organization
in behalf of its
members
C. COOLING OFF PERIOD
-30 days from the
filing of the notice of
strike before the -15 days from the
intended date of filing
of
the
actual strike subject notice of strike.
to the 7-day strike
ban.
D. EXCEPTION TO THE COOLINGOFF PERIOD
- No exception - the cooling off
period
may
be
mandatory.
- Notice of strike
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.
- 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.
49
MEMORY AID IN LABOR LAW
50
MEMORY AID IN LABOR LAW
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 lockedout 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.
c.
e.
f.
2.
d.
51
MEMORY AID IN LABOR LAW
3.
ART.
ACTIVITIES
264.
PROHIBITED
LABOR ORGANIZATIONS
-
RULE ON REINSTATEMENT OF
STRIKING WORKERS:
without
first
having
bargained
collectively
in
accordance with Title VII of
this Book or
without
the
necessary
strike or lockout vote first
having been obtained and
reported to the Department.
NO strike
declared:
or
lockout
shall
be
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 [3rd 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 selforganization or collective
bargaining or
52
MEMORY AID IN LABOR LAW
EMPLOYERS
3.
4.
IMPROVED OFFER
BALLOTING
1. a referendum
conducted by the NCMB
on or before the 30th day
of the strike, for the
purpose of determining
whether or not the
improved offer of the
employer is acceptable
to the union members.
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.
c.
order.
PERIOD OF FILING
3. on or before the
30th day of the strike
LIMITATION
4.
applies
economic
(deadlock)
only to
strikes
REDUCED
OFFER
BALLOTING
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.
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.
3.
on or
before the 30th
day
of
the
lockout
4.
applies
only to economic
strikes-deadlock
in
bargaining
(lockout)
53
MEMORY AID IN LABOR LAW
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:
ACTUAL OR PHYSICAL REINSTATEMENT
- the employee shall be admitted
back to work
2. PAYROLL REINSTATEMENT
- the employee is merely reinstated
in the payroll.
1.
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
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
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MEMORY AID IN LABOR LAW
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
employment.
regularity:
nature
of
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
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MEMORY AID IN LABOR LAW
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. the 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
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MEMORY AID IN LABOR LAW
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MEMORY AID IN LABOR LAW
B.
AUTHORIZED
CAUSES
TERMINATION BY THE EMPLOYER:
OF
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.)
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MEMORY AID IN LABOR LAW
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)
CAUSE OF
TERMINATION
Automation
Redundancy
SEPARATION
PAY
Equivalent to at
least one month pay or
at least one month pay
for every year of
service, whichever is
higher
Equivalent to at
least one month pay or
at least one month pay
for every year of
Retrenchment
Closures or
cessation
of
operations
not
due to serious
business losses or
financial reverses
Disease
service, whichever is
higher
Equivalent to one
month pay or at least
one-half month pay for
every year of service
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.)
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.
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MEMORY AID IN LABOR LAW
Retirement
Optional
but
the
employee must have served
at least 5 years
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MEMORY AID IN LABOR LAW
BOOK SEVEN
PRESCRIPTION
CLAIMS
TITLE II
OF OFFENSES
AND
Period
of
Prescription
3 years from the
accrual of the causes of
action
1 year from the
accrual of the cause of
action
4 years from the
accrual of the cause of
action
4 years
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MEMORY AID IN LABOR LAW
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
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MEMORY AID IN LABOR LAW
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
b.
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MEMORY AID IN LABOR LAW
c.
d.
e.
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.
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 selfemployed
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
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%
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MEMORY AID IN LABOR LAW
f.
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,
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MEMORY AID IN LABOR LAW
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MEMORY AID IN LABOR LAW
Benefits
1.
Separation
include:
benefits
likewise
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.
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MEMORY AID IN LABOR LAW
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
12month
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
PROVIDED:
PENSION,
2.
3.
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