LABOR RELATIONS In terms of the production of the workers, if

there is a strike, then there will be no work.

INTRODUCTION
This is why the gov’t can intervene.
• It denotes all aspects of ER-EE relationship
Q: Under what procedure can the gov’t
which involve concerted action on the
intervene?
part of the workers.
A: By assuming jurisdiction over LD in an
• It is usually associated w/: 1. unionism; 2.
industry indispensable to national interest.
collective bargaining;3. negotiations;
BODIES TO IMPLEMENT LABREL: 1. Office
and4. concerted activities such as:
of the President2. DOLE3. Regional offices of
(strike, picket, mass leave)
the DOLE4. NLRC5. Regional Arbitration
• The purpose of LabRel is to adjust & align Branches of the NLRC 6. Bureau of LabRel7.
the conflicticting interest between labor National Conciliation and Mediation Board
and management to deter the incubation TITLE I
of industrial dispute which may CHAPTER I
inevitably lead to convulsive strife or civil POLICY
war.
Non-Interference of non-parties in collective
• PARTIES bargaining
No court or administrative agency shall have
Every labor elations case involves 4 parties the power to set or fix wages,rates of
namely:employees,management ,public,state pay,hours of work,or other terms and
conditions of employment, except as otherwise
Immediate/ Active parties (ER & EE) provided under Labor Code, the purpose of
which is to encourage a truly democratic
Passive/ Inactive parties (Gov’t & Public) method of regulating the relations berween the
er-ee by means of agreements freely entered
Q: Is there an instance where a passive party into through collective bargaining.
becomes an active party? EXCEPT:
a) NCMB & NLRC –as to wage distortions
A: YES. In case of a labor dispute in an (ART.124, INFRA) AND
industry indispensable to national interest. b) Secretary of Labor and employment &
President- as to certification and
In the case of a vital industry dispute, where assumption powers over labor disputes.
the President/ Sec. of Labor can assume
jurisdiction. TITLE II

ex. There is a LD in PAL, it is a vital industry. NLRC LABOR ARBITER

The ER & EE are the active parties.
IBP member IBP member
Q: What happens if the gov’t does not
intervene? 15 years in practice
10 years in practice of law
of law
A: In terms of economy, there will be no
5 years experience
income on the part of the ER. There will be no 5 years experience in Labor
in Labor
management
wages, salaries on the part of the EE. management

In terms of economy of the nation, affected. Assigned in the

region where he
comes from
 NLRC QUASI-JUDICIAL POWERS OF NLRC:
CHAPTER I
(1) CONTEMPT POWER OF NLRC• It is to
CREATION AND COMPOSITION
preserve the dignity of the commission. Direct

contempt, pursuant to the NLRC 2011 Rules

NATIONAL LABOR COMMISSION –it is an
and Procedure of Labor Code. Indirect
autonomous body for it is attached to DOLE for
contempt, pursuant to Rule 71 of the Rules of
program and policy coordination only. Procedure.
It is a tripartite body, Its compositions comes (2) INJUNCTIVE POWER
from the: the Chairman and 23 Commissioners
are chosen from the 1. workers 2.employers 3. • The NLRC can issue of TRO or a writ of
public injunction. These must be issued upon
the observance of due process. The
TRO may be issued even without a
• The NLRC sits en banc only of instances of hearing. However, in issuing a writ of
promulgating rules and regulations governing injunction there must be a hearing to be
the hearing and disposition of cases and conducted.
formulating policies affecting administration
and operations • The NLRC may issue a TRO ex parte or
without the presence of the other party
Q: How may the NLRC exercise its quasi- because it is a mere interlocutory order
judicial powers? (Adjudicatory powers) prior issuance of the writ of injunction.
BUT in the case of writ of injunction, a
A: It is exercised thru the different divisions.
hearing must be conducted. (3)
There are 8 divisions. In each division, there
are 3 commissioners. The chairman comes POWER TO RESOLVE CERTIFIED
from the gov’t. The others, from both the CASES UNDER ART. 263-G OF THE
management and labor sectors. LC (ASSUMPTION POWER) Q: How
may the Pres of Sec. of Labor assume
The divisions have exclusive appellate jurisdiction over a VID?A: The ER or the
jurisdiction over cases within their respective union may petition or do a joint petition
territorial jurisdiction. or motu proprio. • Under Art. 263-G, the
nature of this assumption power is
• The functions of NLRC are appointing, (PFCD) plenary, full, complete &
investigative and administrative. discretionary. Q: Can the EE & the
union compel the Sec. of Labor to
- BUT the ff. are the quasi-judicial powers: assume jurisdiction?A: NO, it is
discretionary. The Sec. of Labor has a
1. Contempt powers wide latitude of discretion. LEGAL
EFFECTS OF AN ASSUMPTION
2. Injunctive power ORDER:
3. Power to resolve certified cases under Art. It has the effect of writ of injunction.A return to
work order is deemed written in the AO.
263-G (assumption power)
There are cases where the Sec. of Labor had
4. Appellate power
a separate return to work order.
Striking workers should return to work, corporate officer, which is an intra-corporate matter,
otherwise, they are deemed to have lost their is cognizable by RTC. However, termination cases
employment status or they can be dismissed arising from interpretation and implementation of
upon compliance with due process. CBA belong to VA

The AO contemplates only actual 3) Gross Violation of CBA- flagrant and/or malicious
reinstatement. refusal to comply with economic provisions of such
agreement,which act is considered as ULP
The returning striking workers should be cognizable by LA. Ordinarily CBA vioations are
reinstated actually by the ER thru their former mere grievances subject to grievance machinery
positions under the same terms and conditions and voluntary procedures.
of the ER.
4) Money claim with a claim for reinstatement-
Under the law on dismissal, the ER is given workers may file involving wages,rates of pay,hours
the option to reinstate either actually or via of work and other terms and conditions of
payroll. But on the law of assumption of employment if accompanied with a claim for
jurisdiction, payroll is not allowed. reinstatement.

XPN: Under special circumstances, they 5)Money claim exceeding 5K- A money claim
should be reinstated via payroll if there will be arising from er-ee relationship except
an awkward situation or legal/ physical EC,SSS,PhilHealth, and maternity benefits is
impossibility. cognizable by LA if the claim regardless of the
amount is accompanied with a claim for
CHAPTER II reinstatement. Thus where the amount claimed by
POWERS & DUTIES each employees exceeds 5K jurisdictional limit of
Regional Director is without jurisdiction.
Jurisdiction of Labor Arbirters 6) Jurisdiction over employees of cooperatives-LA
has jurisdiction only over monetary claims and
-over controversies involving employers and
illegal dismissal cases involving employees of
employees only if there is a “reasonable causal
cooperatives but not claims or termination of
connection” between the claim asserted and
membership.
the er-ee relations. Absent such link,the
complaint is cognizable by regular courts (Pepsi- Jurisdictio over money claims by Regional Director
Cola Distributors v. Hon. Gallang)
The ff requisites must cincur:
However, SC ruled in one case that if a seafarer
had signed a POEA-approved contract, but was not  The claimant is a domestic helper or house
deployed overseas, such contract crated certain helper under the law:
rights and obligations, the breach of which may  Does not seek reinstatement:
give rise to a cause of action against erring party.  Claim does not exceed 5K:
Likewise,if the seafarer failed or refused to be
deployed as agreed upon he could be liable for 7) Damages –(moral and exemplary)
damages(Santiago v. CF Sharp Crew Mgt)
Moral- when illegal dismissal effected without
1) ULP- an act of an employer or the union or their authorized cause or dueprocess, attended by bad
agents, that violates the constitutional right of faith, fraud or any act oppressive to labor or done
workers to self-organiization. contray to morals,good custms or public policy.

2) Termination disputes-termination or illegal Purpose-indemnity not punishment to enable the

dismissal cases are under the exclusive and injured party to alleviate the moral suffering he has
original jurisdiction of LA. Termination of a undergone.
 an applicant to the job should not be a member
of a union or he is required not to join any labor
union. He renounces his constitutional right to
self organization.
2. Discriminationif the unequal treatment is
- • The nature of ULP is not just administrative or
designed or calculated to get rid or discourage civil offense but is also a criminal offense. It is
unionism, it is ULP. the regular courts which has jurisdiction over
the criminal aspect. However, there must be a
(a) laid off(b) retrenchment (c) transfer of EEs final decision on the administrative or civil
aspect before he can file the criminal aspect.
3. Company unionismthe union is organized
- TYPES OF ULP:a) ULP COMMITTED BY
THE ER• In ULP, the purpose of any act of the
at the instance of the co. or ER.
ER is to discourage
(a) organized by the co.
unionism. To get rid of the union.
Q: How may an employer organize a company
union? A: Thru the ff: Types of ULP committed by the ER:

1. Interference, restraint, coercion This can

5. Sec. of Labor has concurrent jurisdiction -
over cases that are cognizable by LA. be committed through the ff:

• Under Art. 224, the LA exercises exclusive (a) economic means - sweetheart contract,
jurisdiction over termination disputes, ULP etc. where there will be collusion b/w the union &
the ER;
XPN: Under assumption order & pending
litigation, the Sec. of Labor can take over . (b)  physical means - the ER kidnaps the
pending cases. Pres. of the union to scare him if they
will push through w/ the CBA; and
UNFAIR LABOR PRACTICE (ULP)
. (c)  psychological means - sending death
• It is an act by ER w/c violates the threats; sending an empty coffin
constitutional right of worker to self
organization, w/c includes: -
1. right to form a union2. right to take part in its 1. economic support - turning the assoc. to a
formation3. right to join or assist a union in LU, organized in the instance of the ER;
CBA4. right to negotiations5. right to engage in
concerted activities for mutual 2. legal support - the ER gives the best lawyer
to be able to build a union; and
help and protection
3. psychological support - promises of a better
Q: Are there instances when ULP is committed future, trust fund etc.
in the absence of ER-EE relationship?A: YES.
In the ff. instances: (b) not organized by the co.A militant union but
bec. the ER captivated the heart and emotions
(a) Doctrine of innocent bystander - ULP can of the union, the union became a company
be committed against a non-ER. dominated union.

(b) Yellow Dog Contract - an agreement where

 RELATIONS REVIEWER
4. Refusal to bargain collectivelythe duty to
- Page 2 of 1 8
bargain collectively means the mutual
obligation of the ER to confer promptly and - If the contracting exceeds 6 months, that will
expeditiously on reasonable terms and amount to ULP. The purpose is to get rid of the
conditions of employment and in good faith, union w/c is a ULP.
providing the machineries of settlement therein
7. Giving out testimony

Q: When may mutual bargaining start?A: The 8. Gross flagrant violation of the CBA This
union submits a proposal and as a mutual -
obligation on the part of the ER, the ER is refers to economic provisions.
mandated to submit a counter CBA proposal
w/in 10 days of receipt. • Increase of wages• Other addtl & labor
standards benefits• Leave credits• Increase of
When the ER received the counter CBA and benefits• Escalator clause - in the event of
the ER does not submit a counter CBA, the sudden
CBA proposal submitted by the union will
become the governing CBA in the company increase in the prime commodities of consumer
premises. price index brought about by soaring prices,
this provides that there will be a gradual
(a) Good faith bargaining (Boulwareism) - this increase in wages if there is increase in
is our proposal, “take it or leave it”. It was commodities.
introduced by Lemuel Boulware (VP of General
Electric) b) ULP COMMITTED BY THE UNIONTypes
of ULP committed by the union:
(b) Surface bargaining - the ER procastinates
& delays the proceedings, the ER has no 2 ASPECTS OF DUE PROCESS:
intention of signing an agreement

(c) Runaway shop - they transfer their a) Substantive- this refers to the legality or
business to another location to avoid CBA illegality of the act of

Q: When they discovered it, they held a strike dismissal; no EE shall be dismissed except in
at the place where the ER transferred. Is the
strike legal?A: YES. -

• The concept of the duty to collective 1. Blue sky bargainingthe CBA proposal
bargaining is it includes reasonable terms & -
conditions of employment. contains economic demands that are
unreasonable, exaggerated bargaining
5. Providing negotiation fess & servicesThis proposals; the economic demands are sky high
-
or beyond the economic reach of the employer.
will result to incomplete, inadequate CBA.
2. Feather bedding activityit means prolonging
6. Contracting out of service the work for the union to earn; compelling the
ER to pay services rendered or not rendered,
performed or not performed; this is a form of
Compiled by A.A. Dizon ’15-’16Updates by CRUZ.DE DIOS.RUIZ extortion committed by the union to the ER.
’17-’18 Notes and comments by Dean Salvador A. Poquiz LABOR
DOCTRINE OF COMMENSURATE
PENALTY/ PROPORTIONAL RULE:- penalty manner of dismissal
imposed proportionate to offense committed
1. 2-Notice Rule 1st Notice
1. Length of service2. Gravity of offense3.
Nature of the position/ employment4. Nature of - it must be formal specific discharge;
the business5. First offense rule6. Totality of “violation of Company Rules and Regulations”
infractions (Collective infractions — it is NOT
rule)

7. Principle of charity, compassion and considered as specific discharge.you reply w/

-
understanding
an intelligible answer if the discharge is NOT
8. Principle of equity specific.

2 TYPES OF DISMISSAL: (JUST CAUSE &

2nd Notice- this is the notice of dismissal;
AUTHORIZED CAUSE DISMISSAL)

1. JUST CAUSE DISMISSAL this is

- - --
initiated by the EE; inform the EE of the decision to dismiss him;
give the EE the chance to contest validity by
in the Toyota doctrine, all has no payment of filing proper complaint
-
separation pay; 2. Opportunity to be heard unless the party
requests for a hearing (Perez doctrine)
for non-compliance by the ER of the due
process of just cause dismissal, he is liable to
pay indemnity or nominal damages amounting ex. the employer only needs 50 people but the
to P30,000.00 union compels the ER to pay for 75 people.

Types of Just Causes: a) Serious 3. Restraint, coercion, discrimination on the

- part of the union4. Strike coercion on the part
misconduct of the union5. Accepting negotiation fees from
the union
wrongful or improper conduct that is committed
in an aggravated or serious manner. 6. Violation of the CBA of the union
-
TERMINATION DISPUTES
to be a just cause dismissal, it should be
serious; if it were a minor misconduct, then it is • It has something to do on law on dismissal;
not a just cause for dismissal (too harsh a post- employment
penalty).
LAW ON DISMISSAL
examples:
• According to Article 3, Section 1. “No person
causes provided by law b) Procedural shall be deprived of his life, liberty and
property without due process of law.”

- this refers to the legality or illegality of the • Due process class and right to security of
tenure.
• Labor is a property. One’s labor is property • Fighting in company premisesNo work, no
within the mantle of the Constitution. A pay (they stop working when there is fight).
worker may not have any property There must be body contact in order to be
except his labor. DUE PROCESS serious.

“Audie alteram partem”- No one shall be • GamblingSerious misconduct because of its

condemned and unheard Q: What is the pernicious effects.
quantum of proof in labor proceedings?
A:GR: Substansial evidence, w/c a • Sexual intercourse in company premisesthis
reasonable mind may find adequate to is inflamed either by lust or affection, these are
justify conclusions.XPN: To prove the immoral acts that affects moral decency.
Immoral acts are any act not accepted by
validity of dismissal rest upon the ER to
community (ex. married man w/ another
prove it under clear, positive, convincing family). The basis of determining immorality is
and accurate evidence. Compiled by A.A. Dizon the public and secular basis.
’15-’16 Updates by CRUZ.DE DIOS.RUIZ ’17-’18
• Theftit is an act of dishonesty, you also have
- to consider the amount of the property taken
because you need to consider also if the
• Sexual harassmentthe Anti-Sexual penalty is proportional to the offense
Harassment Law is designed to protect committed. If it is negligible, dismissal is too
employees from over sexed superiors harsh a penalty.
2 Types of Sexual Harassment • Drug-use in company premisesthe refusal to
take the test (confirmatory test & screening
1. Quid pro quo - “I give that you may give”; test) is considered a serious misconduct and
- may be dismissed. The ER must inform the EE
something for something of the test results, without this it is considered
illegal dismissal.
economic in nature committed by
b) Willfull disobedience
superior officer who has moral dominance,
- there is deliberate refusal to obey lawful orders
ascendancy over the victim of the ER; repeated commission of same
irregularity. However, insubordination is an
procurement of sexual favors isolated act and not justified by dismissal.

It does not mean that if there is a violation of

2. Hostile environment the lawful order, that automatically dismisses
an employee. We must determine first other
- because of the EE’s gross negligence, it circumstances before imposing the supreme
economic death penalty which is dismissal.
caused the ER a tremendous damage
c) Willfull breach of trust and confidence
- unwelcome sexual remarks, advances,
- it has something to do with protection of
utterances, flirtations company money and propery

physical conduct of a sexual nature where an ex. Manager assigned in a very delicate
employee is placed in an intimidating, hostile position but he failed to perform his functions.
and offensive environment. Several company properties were spirited out
unknowingly by such manager. This will justify
dismissal. RELATIONS REVIEWER

- there were some cases where in although not 2. AUTHORIZED CAUSE DISMISSAL this is
-
habitual, but if it is gross, then that will justify initiated by the ER; mandates payment of the
dismissal -
separation pay;
e) Other analogous causes
for non-compliance by the ER, he is liable to
1. violation of company rules2. unauthorized pay the amount of P50,000
absences3. serious insult/ unbearable
treatment of ER 4. abandonment Types of Authorized Causes:a) Introduction
of Labor Saving Device

- over acts/ willful intention to ever ER-EE -

relationship; there must be willful, deliberate
refusal not to return. The ER must notify the 2 Types of positions:
employee, still need to observe the 2-notice
rule but w/o hearing -
-
-
-
d)
--
Commission of a criminal offense

1. 2.
-
Automation
Fiduciary/ Rank and file employees- requires a
tedious, rigorous procedure in replacement of workers by machines resulting
to technological employment
the dismissal
Requirements:
Managerial employees- mere finding of the
1. 2 separate notice rule - notice to the DOLE and 30
basis of loss of trust and days notice to the EE to be discharged;

confidence will justify dismissal; it is the 2. Fair and reasonable criteria - less preferred status,
extension of the personality of the seniority based on first in last out rule, length
management/ alter-ego of the ER of service; this is not provided by law but
perhaps in the employment contract or CBA
any commission of a criminal act against the
3. It must be done in good faith
person of the ER or his immediate family
member will justify dismissal 4. There must be payment of separation pay

e) Gross and habitual neglect of duties If it is done just to get rid of the union, this will amount
to constructive dismissal and ULP.
Q: What kind of losses are contemplated under the
LC? A: Actual and anticipated/ impending losses b) Retrenchment
Compiled by A.A. Dizon ’15-’16Updates by CRUZ.DE DIOS.RUIZ ER is on the verge of economic collapse; the
’17-’18 Notes and comments by Dean Salvador A. Poquiz LABOR
ER is losingthe ER can embark on • You may file it w/ Regional Arbitration
retrenchment to prevent losses the purpose of Branch of the NLRC having territorial
retrenchment is to prevent the eventual jurisdiction of the workplace of the
economic catastrophe that will lead to the complainant.
downfall of the ER; so the ER can reduce
company personnel to prevent losses Q: What are the normal consequences of
illegal dismissal?A:
partial closure is also considered as
retrenchment Requirements: --
1. 2 separate notice rule - notice to the DOLE and 30
days notice to the EE to be discharged;
-
2. Fair and reasonable criteria - less preferred status, --
seniority based on first in last out rule, length
of service; this is not provided by law but c) Redundancy
perhaps in the employment contract or CBA

3. It must be done in good faith

it is no the duplication in work function;a
position is redundant when it is superfluous.
4. Proof of financial pay Superfluity is the outcome of some factors:
5. There must be payment of separation pay - half (a) Over-hiring of workers(b) Decline in the
month pay for every year of service (company volume of business(c) Closure of a particular
is losing)
line of an economic
Page 4 of 1 8
activity previously engaged by the ERthere are
• There is no prohibition for the ER to embark on excess services that are NOT needed by the
retrenchment if he could perceive that its economy ER. These surplus over-hired additional works
will go down the drain. are NOT needed by the ER, so they must be
discharged.
- to be valid, it must be done in writing by the
EE and the acceptance must also be in writing. Requirements:

1. 2 separate notice rule - notice to the DOLE and 30

Q: Can you withdraw resignation prior days notice to the EE to be discharged;
acceptance? A: Yes.
2. It must be done in good faith
Q: After acceptance?A: No more because
there is already termination of ER-EE 3. There must be payment of separation pay - full
month pay for every year of service
relationship.
d) Disease
• If the EE insists on coming back and the ER
accepts, he should be treated as a new EE. the ER must prove it by way of medical
certificate issued by a gov’t hospital/ clinic or
Q: May resignation be done verbally?A: The doctor;the disease cannot be cured in the
verbal resignation can be accepted because period of 6 months; if it is curable w/in 6
there is no legal prohibition as long as it is months, he should be allowed to on LOA
accepted through writing.
Requirements:
RELIEFS FOR ILLEGAL DISMISSAL
1. 2 separate notice rule - notice to the DOLE and 30
• If there is violation on the substantive (act) & days notice to the EE to be discharged;
procedural (manner) aspects of due process,
there is an illegal dismissal. 2. It must be done in good faith
3. There must be payment of separation pay - half f)
month pay for every year of service
CONSTRUCTIVE DISMISSAL
Closure of business
- It is a dismissal in disguise; this is quitting of
Requirements:
the job since continuing the employment has
1. 2 separate notice rule - notice to the DOLE and 30 become impossible, unreasonable, unlikely
days notice to the EE to be discharged;
and unbearable under the circumstances.
2. It must be done in good faith
examples:
3. Proof of financial pay
1. Demotion in rank2. Outsourcing beyond 6
4. No payment of separation pay
months3. Resignation - voluntary in nature
Analogous causes BUT if it is due

- to being oppressed this will amount to

constructive dismissal4. Preventive suspension

1. Reinstatementrestoration of the dismissed
- should not be beyond
EE to his former position
30 days otherwise it will be constructive
2 Types of Reinstatement:
dismissal
a) Actualemployee reinstated to his former
- - It is a voluntary act of the EE where personal
position; perform his services and receives his reasons cannot be sacrificed in favor of the
expediency of the service;
compensationimmediately self-executory
- ••
pursuant to the Pioneer ruling, there is no more
need for a writ of execution - Authorized dismissal done in bad faith will
amount to constructive dismissal. It is an
b) Payrollhe does not perform his services but involuntary resignation or serious insult or
-
unbearable treatment to EE that will force him
receives his compensation
to resign.
ER is given the option to reinstate either
Resignation
actually or in the payroll.The ER may reinstate
an employee in the payroll if the actual Q: Is there violation of “no work, no pay” in
reinstatement is no longer possible. payroll reinstatement?A: Generally, yes. BUT
since it is the mandate of the law, although it is
2 reasons:
harsh, there is no violation under the dictum
(i) the ER believes that there was valid cause dura lex sed lex.
for the dismissal
• In the event that the ER is stubborn and does
(ii) ER does not want to see anymore any NOT want to reinstate the EE, the lawyer
unwanted face in the company premises bec. it should do the ff:
may demoralize other workers
(i) FileamotionforcontemptagainsttheER; (ii)
File a motion for the payment of monthly
e)
 - Refund salaries pending appeal is NOT
salaries;
allowed anymore or else it is unjust
enrichment.
Compiled by A.A. Dizon ’15-’16Updates by CRUZ.DE DIOS.RUIZ
’17-’18 Notes and comments by Dean Salvador A. Poquiz
- Four (4) years also in illegal dismissal cases
Page 5 of 1 8
3. Damages, attorney’s fees and other benefits
LABOR RELATIONS REVIEWER
it is NOT only stated in the LC but also in NCC.
moral damages is proper when dismissal is
-- done in bad faith or against the law etc.
exemplary damages is proper when dismissal
-- is done in oppressive, whimsical, arbitrary
manner moral and exemplary damage can be
--- of equal amount depending on the LA

(iii)Cause the issuance of writ of execution only attorney’s fees in Art. III of LC shall not
for the reinstatement w/c is motu proprio on the exceed 10% (this should be awarded to the
part of the LA winning party/ dismissed EE); he was
compelled to litigate, in process he incurred
2. Backwagesrestoration of the loss income litigation fee.
brought about by illegal dismissalhe should be
paid separation pay as a form of compromise • can award less than 10%• attorney’s fees in a
to reinstatement, if reinstatement is not form of damages
possible
(extraordinary concept)
e)
g) Physical Disability- May undergo medical
f) examination to determine fitness

← -  There should already be to work.• If you have a contagious disease, you

sever antagonism where the ER and EE cannot be
cannot look at each other eye to eye
reinstatedOccupational disease is
← anymoreAs a form of
-
-  compensable
compromise to reinstatement o
Personal Comfort Doctrine
Backwages and Separation Pay - Legal
Impossibility- He should be reinstated in The position was already abolished or filled-up
a substantially equivalent position If - Providing comfort and convenience
-
this cannot be done, the remedy is
payment of separation pay plus There are attorney’s fess in ordinary concept:
backwages as a form of compromise. a) lawyer/retainershipfeesb)
Prescription is four (4) years acceptance/appearancefess

• Refund Doctrine (Gino-gino case) is already 4. 6% legal interest on monetary award to the
abandoned by Garcia v. PAL illegally dismissed EE
Twin relief of illegal dismissal d)

Reinstatement and payment of full backwages ••

from the time he was illegally dismissed until
he was actually reinstated. •

INSTANCES WHEN REINSTATEMENT IS Regional Arbitration Branch of the NLRC

NOT having territorial jurisdiction of the workplace of
the complainant.RAB – “over the workplace”
PROPER:
A. Before it is filed with the LA:It will be filed
Dismissal for CauseEmployee does not want with the Single Entry Approach Proceeding
to be reinstated Laches or Waiver (SENA).

• Unreasonable Delay in claiming your right to Purpose: Amicable Settlement

reinstatement
- B. If SENA is terminated because there is
no settlement reached by the parties, it will
Employee can still look for a job while waiting now be raffled with the LA.
for the outcome of his case, and even if there
is already an order of reinstatement, he cannot Where to File Illegal Dismissal:
be charged that the has already waived his
right to be reinstated because in the meantime,
he is earning to feed his family. • This cannot be used by the ER just to thwart
or frustrate reinstatement
Strained relationship w/ the ER
- There should be extreme reasons to justify
----- strained relationship

- 1) Once it has been received by the LA,- it will

be scheduled for the first 2 preliminary
Injury or death is compensable Act of StateNot
conducive to working harmony Employee is too conference (PC) for the purpose of amicable
old settlement.
Law does not provide reinstatement •
Kasambahay Law; Migrant Workers Act; • It is a mere duplication of SENA.- There is no
Kulangot prohibition upon the LA to grant

another PC if it was moved by one or both

Doctrine- Principle of Fiduciary Relationship parties. Although there are only 2 PC under the
rules, it may still be granted, even if not
PROCEDURE IN ILLEGAL DISMISSAL
provided in 2011 Rules of Procedure.
CASES
BASIS: ART. 221
If there is a violation of the substantive and
procedural aspect — there is ILLEGAL Page 6 of 1 8 Notes and comments by Dean Salvador A. Poquiz
DISMISSAL LABOR RELATIONS REVIEWER

Compiled by A.A. Dizon ’15-’16

a) b) c) Updates by CRUZ.DE DIOS.RUIZ ’17-’18
• “Technical rules are not binding and prior o UERMMC Case, wherein the Employer can
resort to amicable settlement” post bond provided value of property is
substantial to cover monetary award.
• File answer within 10 days from receipt of
memorandum of appeal Q: Can you post 10% for perfecting an appeal?
A: No.
c. Posting of the appeal bond• Two Types of
Bond to be posted: • In Macberry v Ganzon, the SC allowed 10%
initial amount.
o Cash o Surety
(4) APPELLATE JURISDICTION
– issued by a reputable bonding company Q:
What is the requirement of the law on bond? - Relaxed in labor proceedings because the
purpose is administration of speedy labor
A: Monetary minus damages and attorney’s
fees justice.

Q: Does the LA fix the amount of the bond?A: 2) If after the PC, there is no settlement
No. LA is not allowed to fix the appeal bond. reached:
The law itself fixes the appeal bond
a)
Q: How much are you going to post? A:
Reasonable amount of the bond OR

Q: Can the appellant employer file to reduce b)

bond?A: Yes, but should be filed during the
The LA will require the parties to
reglementary period to appeal accompanied by
simultaneously submit position papers
posting a reasonable amount of the bond.
-
Q: What is he did not post a reasonable
amount of the bond, instead he posted 10% of This is called Position Paper Proceeding- Not
the monetary award. Is this allowed?A: In the a violation of due process because the parties
case of Mcburnie v Ganzon, 10% is allowed are already
but applicable only for the purposes to reduce
the bond but not to perfect an appeal given opportunity to be heard- This is
substantial compliance with
Q: What if he filed to reduce bond but did not
post bond, what is the legal effect?A: The due process
decision of the LA will become final and
executory under the Doctrine of Immutability of
Final Judgment. The LA can go on with the case on a trial type
proceeding
XPN: Backwages are continuous/addup until
fully satistfied; Can file motion for - Subject to LA’s discretion and not the parties.
recomputation of backwages even if decision is
already final 3) If the position papers were submitted on the
scheduled date- They will require a reply
d. Personal Service
• A reply under the rule is the last pleading.•
e. Approval of the record of appeal • XPN to
Submitted for resolution (30 days), while OFW
Bond:
cases (90 days)
4) After a decision is rendered and there is a Q: What if before the commissioner decides on
finding of illegal dismissal:- The reinstatement the merits, he required the parties to have a
is immediately self-executory conference for purposes of amicable
settlement? Is this allowed?
If you were the Lawyer, ask the Client if he
would APPEAL or NOT! A: No legal prohibition. Technical rules and
procedures are relaxed in labor proceedings.
• If they file a MOTION FOR
Q: If no amicable settlement, they submit for
RECONSIDERATION, he must comply decision. If the LA affirmed in toto by the
with the requirements of appeal.- In one
Page 7 of 1 8 Notes and comments by Dean Salvador A. Poquiz
SC decision, MR was treated as a mode LABOR RELATIONS REVIEWER
of appeal.
commission, the employer loses again. What
• Upon receipt of the decision of the LA, you should the employer do?A: File a motion for
have 10 calendar days to appeal. Q: reconsideration within 10 days from receipt
The EE won in the case, but there was
no reinstatement as decided by the LA, Q: What are the purposes of the MR? A:
the EE appealed. In the commission
← -  To rectify the error
level, they ordered reinstatement
provided in the decision of the NLRD committed
and not the LA, is reinstatement
immediately self-executory? A: NO. ← -  To comply with the
NOTE:✓ IfdonebytheLA–YES ✓ If exhaustion of
done by the NLRC, COMMISSION
LEVEL – NO because it requires ← administrative remedies
issuance of a motion REQUIREMENTS
- 
OF APPEAL a. Payment of docket The MR is a requisite sine qua non prior
fees• If not paid, appeal will be certiorari Q: What if, MR is denied, and
dismissed because it is a matter of upon receipt of the denial, how many
jurisdiction b. Submission of a days to file a petition in Rule 65?A: 60
memorandum of appeal• Copy furnish days Q: What should be included in the
the other party• Mere procedural or petition? A: Three essential dates
formal lapse if you do not give a
← -  Date of receipt of the decision
- No more writ of execution of the NLRC

← -  Date when MR was filed

1. Before it is assigned to a ponente
← -  Date of receipt of the denial of
commissioner, there will be a consultation.
the MR Q: In your petition to the
Court of AppealsA: Submit 3
- Purpose is to prevent a one-man decision
hard copies and the soft copy &
pay the docket fees and other
fees.
copy; not fatal
Compiled by A.A. Dizon ’15-’16
2. If duly receive by the CA, it will be raffled.•
The raffling of cases in the CA is always
Updates by CRUZ.DE DIOS.RUIZ ’17-’18
observed and participated by one justice.• Q: The losing party can still appeal. What if the
Every raffling day, there is assigned justice of respondent ER did not appeal?A: Upon
expiration of the period to appeal, you can file
CA. a motion for the issuance of the execution. This
will be subject to a hearing. There will be a pre-
SUPREME COURT execution conference.
GR: File with the SC on the ground that there • When the decision is already ripe, for
are purely questions of law and GADALEJ enforcement, then you can file a motion for the
issuance of a writ of execution.
o Because CA is their fact-finder
Q: For the losing party, can they still protect
XPNs: their interest?A: Yes. File a motion to quash
the writ of execution.
- If there are mere speculations- Possibility that
there were facts not given serious
3. Before it is assigned to a Justice member,
consideration or if given consideration, this
there will be another consultation
may

amend or modify the decision- The decisions of - To prevent one-man decision

the LA, NLRC, CA are contrary to
Q: What if the petition is lacking in form
each other; in collision or at odds at each because he only attached photocopied
other; when the decisions are diametrically documents?A: They will ask you to submit
opposed to each other. certified copies; The CA may require the other
party to submit a comment, answer, or reply.
Before Entry of JudgmentQ: If the SC still
decides against the ER, can he file an MR?A: Q: Upon submission of the petition, what is the
Yes. other party was not notified to submit a
comment? Can you submit a comment without
Q: If the MR is denied, can you file MR over being notified?
the denial?A: Yes.
A: Yes. Submit with leave of court.
Q: If denied again, can you file another MR? A:
Yes. 4. Usually, for the settlement of backwages
and reward, there is mediation, but if there is
• You can file until finally, the SC issues a non, then it will be decided on the merits based
resolution that you cannot anymore file a on the documents submitted.
motion, otherwise, it will be dealt with
accordingly. When all the documents have been submitted,
the CA will notify the parties that it be
Entry of Judgment submitted for resolution.

• Pre-execution conference• The decision will • If they lose – file an MR• If denied – file it
now go down to the level of the LA for within 15 days

purposes of execution Q: Can you file a motion for extension of time

to file?A: Yes.
Q: What will the prevailing party do?A: File a
motion for the issuance of a writ of execution, Q: What
but the LA will not just issue a writ, the motion
shall be subject to a hearing. are the grounds for a motion to quash?
That the decision of the LA is incompleteThe that is not allowed by the law.
amount of the awards is not provided in the
dispositive portionThat the decision by which (5) SEASONAL- If the employee was
execution is based is a product of graft and employed from season to
corruption That the writ of execution is
irregularly issued season performing the same task, he is a
regular seasonal employee.
Compiled by A.A. Dizon ’15-’16

Updates by CRUZ.DE DIOS.RUIZ ’17-’18 (6) PROJECT- Akin to contractual employment

Page 8 of 1 8 Notes and comments by Dean Salvador A. Poquiz
- After project, automatic termination of ER-EE
LABOR RELATIONS REVIEWER relationship.
-
A:
Constant rehiring of a project employee, he
1. 2. becomes
3. 4.
a regular employee- Upon termination of every
5. That the writ of execution was issued project, the employer
against the client who is not a party to the case
should submit a report on termination of
TYPES OF EMPLOYMENT projects to the nearest DOLE office.

- Has been engaged to perform activities which

(1) REGULAR
are usually necessary or desirable in the
usual ---
business or trade of the employerHas Period of evaluationPrelude to regular
- employment Training ground
rendered at least one year of service,
GR: 6 months for probationary periodXPN: The
whether such service is continuous or broke, ER-EE can agree on probation below or
with respect to the activity in which he is beyond 6 months, depending on the
employed. technicality of the work

2 Types of Regular Employment: • PLDT case – nature of the job required

extensive training, probation was agreed to be
A: Yes beyond 6mos.
Q: If the training period in the apprenticeship • In case of teachers – full time satisfactory
and learnership expires, should it be service for 3 years
considered as probationary period?A: Yes
Q: What about apprenticeship and learnership,
Q: What if a week before the apprenticeship is is this a training period?
done, the employer told the apprentice that he
will consider him a regular employee, but (i)
before you become a regular employee, you
have to undergo probationary period, is this (ii)
valid?
- Constant renewal of contract- Successive
A: No, that would amount to double probation
and constant rehiring - Falls under regular out any time and be assigned from one project
to another. If you were assigned in Phase 1
employment Project A then at Phase 3 of Pr- ject B, is this
valid?
- upon expiration of the probationary period, he
becomes a regular employee A: Yes. You are an employee belonging to the
work pool, then you are treated as a regular
- Not entitled to normal consequences of illegal employee
dismissal because employed for a fixed term. • In apprenticeship, if the contract was
prematurely terminated, the apprentice does
a. not automatically become a regular employee
b.
• In learnership, the learner becomes a
As to the nature of work- That the EE performs regular employee if contract was prematurely
the job that is terminated provided that he has already been
trained for two months.
usually necessary and desirable in the usual
business of the employer (iii) Project EEs- if hired constantly, they
ceased to be project
As to the years of service- At least one year of
service, whether employees but they become regular
employees
continuous or with intervals
• In the case of Millares v NLRC and Zamora
• Mechanic – Regular because UND• case, despite constant rehiring, the employee
Carpenter – Not regular; Only performs will never become a regular employee i.e.
incidental seafarer.
work to the principal action; Casual employee o (2) CASUAL(3) CONTRACTUAL (4)
UNLESS he renders work for 10 years i.e. PROBATIONARY

auto repair shop - Period to learn the job

Other types of Regular Employment: 555
Doctrine Compiled by A.A. Dizon ’15-’16Updates by CRUZ.DE DIOS.RUIZ
’17-’18 Notes and comments by Dean Salvador A. Poquiz LABOR
o Legal Consequence: Project becomes RELATIONS REVIEWER
regular
•
Probationary EEs
RETIREMENT
(7) NON-PROJECT
The Labor Code is not a source of retirement
3 types of Non-Projecta. Casual – Perform benefits before but the IRR provided for it until
incidental workb. Probationary – After 6mos the law on retirement (RA 7641) has been
becomes enacted. Now, it is a source of retirement
benefits.
regular c. Regular
Q: What is retirement?A: Bilateral act between
Q: If the project/non-project are employees employer and employee where the latter upon
belonging to the work pool, they can be taken reaching a certain age, has to
Page 9 of 1 8 Q: Where is the document required under the
law, for the voluntary arbitrator to take
separate himself from employment in order for cognizance of the case?A: This is what we call
him to enjoy yhe remaining years of his life. “Submission Agreement”. The vital industry
dispute can be resolved by a voluntary
Q: Age of retirement
agreement of the parties.
GR: If more than P5K, LA has jurisdiction
XPNs: - 15 days a month for every year of service - 5
days service incentice leave- 1 1⁄2 for 13th
A:
month pay
Compulsory – 65 y/o Optional – 60 y/o
Underground Miners – 50y/o Q: Can additional benefits be included in the
retirement pay?
1. Provided in the original Article of 263-G, on
assumption of jurisdictions A:GR: No

Q: Component parts of retirement A: 22.5 x # XPN: Unless they are voluntary benefits
of yrs of service agreed by the parties

Q: May the employer and union agree on an

assuming jurisdiction in labor dispute.If one of
- early retirement plan?A: Yes
the instances under assumption is money Q: Employer and union agree that an employer
claim, even if it’s P5k below or above, since for a just cause is not entitled to retirement
one of there is under assumption, the benefits, is it valid?A: SC said it is valid; not
against public policy
President or Secretary has jurisdiction
PRESCRIPTION
2. Under Art. 126 of the LC- Visitorial,
inspection, and enforcement power of
• THREE YEARS- Purely money claims-
the Secretary of Labor, but this is exercise Incremental proceeds from tuition fee hikes-
- Employees compensation claims- Union funds
through the Regional Office of the DOLE
- Service Incentive leave from the receipt of
It it’s a money claim, regardless of the amount the claim of the employee
of the claim, Regional Office has jurisdiction -
Q: How may the RO take cognizance of a Criminal cases under the labor code
money claim regardless of the amount?A: Can
be motu proprio, by way of a labor standards XPNs:
complaint filed by any employee. On the basis
of the labor standards complaint, the RO - ULP–1year- Simple Illegal Recruitment – 5
through the RD issues an inspection audit. years- Syndicated illegal Recruitment – 20
Audited for the purposes of determining WON -
the employer complies with labor standards
years
rules and regulations.
Large scale/qualified illegal recruitment –
3. Money claim pending with the LA can still be
transmitted for voluntary arbitration by 20 years
agreement of the parties.
• FOUR YEARS- Illegal Dismissal
MONEY CLAIMS
Compiled by A.A. Dizon ’15-’16
o o
Updates by CRUZ.DE DIOS.RUIZ ’17-’18
• Allthe LA has jurisdiction
Passive Parties
- That the assumption power is by nature
- Government - Public
PFCD. You cannot fault the Secretary of Labor
in
Notes and comments by Dean Salvador A. Poquiz

Violation of constitutional right to propertyRight LABOR RELATIONS REVIEWER

to security of tenure based on due process and
Page 10 of 18
equal protection clause
TYPES OF STRIKE:1. AUTHORIZED STRIKE
• Damages – the usual consequences of an
illegal dismissal: a) reinstatementb) - Staged against a non-employer
payment of backwages c) 6% etc.

• The LA can award damages, attorney’s fees, 12. UNION RECOGNITION STRIKE- To
and other backwages STRIKES AND compel the employer to recognize one’s union
as
LOCKOUTS • Any stoppage of work by
concerted action of employees as a the employee’s bargaining agent.
result of any industrial or labor dispute
Q: Four modes in determining the bargaining
-- Reinstatement agent/ contracting union/bargaining agency?

the matters of employer-employee relationship, A:

Q: Is strike one of the modes in determining

GSIS Claims the bargaining agent?A: No

XPN: In Pascual Liners case, he union staged a

strike for the purpose of compelling the
Retirement and life insurance claims – employer to recognize them as the bargaining
agent. That is illegal because strike is not one
- No such thing as permanent strike - of the modes in determining representation
status.
Counterpart of strike is lockout

Imprescriptible • TEN YEARS - A strike that is approved by the majority of

the total
Active Parties
-
- Social Security Claims
union membersUpon the union’s consent
- Employer - Employee
Q: How would you determine approval or
consent of workers in union?A: This is done
• TWENTY YEARS- To collect contribution of through strike voting
employers
Q: What is the purpose of this AS that it should •
be approved by the union members?A: The
SC said, the purpose it to prevent a wildcat 8. BRIEF9. ORDINARY10. ECONOMIC
strike, prevent corruption. STRIKE

1.

2. 3.
2. WILDCAT STRIKE- Unauthorized strike-
Without approval of union membership 4.

3. PARTICULAR STRIKE- In one particular There must be a collective bargainingo It

business establishment where a strike is must be based on a lawful and factual
-
staged groundIt must be approved by the total union
membershipIt should be declared only on two
Confined strikable issues

a. CBA deadlock
4. GENERAL STRIKE- Political, sympathetic
type of strike that is staged b. ULPFiling of notice of strike
against non-employers because it’s a strike o File it with the NCMB (Nat’l Conciliation &
against Mediation Board)

the government- Covers a wider area of o Ifitiseconomic-30days;ifULP–15days

staging a strike.- Strikes by jeepney
federations; transportation strikes - A result of a bargaining deadlock on
economic issues
Q: Why sympathetic?A: No ER-EE relationship -

5. SLOW DOWN STRIKE- To reduce With the breakdown of the negotiation process,
the
production- Illegal because it violates the ‘no
work, no pay’ labor union can file a notice of strike directly with the

principle ← NCMB There are

- 
6. SIT DOWN STRIKE- Other form of slow economic concessions where the
down strike- Worker are confined in the plant, employer is not ready to five, that is why
they reduce to there is
perform the work for a short period of time. ← economic deadlock.
After some time, they resume. - 
- ULP because this is a strike staged in
Also violates ‘no work, no pay’ principle. violation of the constitutional right of
workers to self-organization. 11.
7. QUICKIE STRIKE- Impromptu- Of short SYMPATHETIC STRIKE Compiled by A.A.
duration- Outside of the company premises Dizon ’15-’16 Updates by CRUZ.DE DIOS.RUIZ ’17-’18
o Page 11 of 18

(pulling off period)Notice of cooling-off period - To reduce the tension, heightened emotion

Notes and comments by Dean Salvador A. Poquiz • Pulling-off period

LABOR RELATIONS REVIEWER A:GR: No, because of the no work no pay
principle XPN:
1.Sole Exclusive Bargaining Agency (SEBA)
Certification 1. On paying the backwages2. If the strikers
were discriminatorily
2.Consent Election
dismissed or if they did not strike but were
3.Certification Election
actually illegally locked-out by the employers
4.Run-off Election
3. The strikers unconditionally offered to return
5.Re-run Election to work but it was rejected by the employer

- From the time of rejection, the strikers are

13. LIGHTNING STRIKE- Of short duration- entitled to backwages
Brief and Concise- Without compliance with
the requirements of a lawful • The offer to return to work of the striking
workers should be unconditional.
strike.
Q: Can Right to Strike be waived?
14. LABOR PRACTICE 15. GOOD FAITH
STRIKE 5.

- Illegal; not a defense in a strike said the SC 6. 7.

in the case of Grand Boulevard Hotel v 1. 2.

Dacanay.
Principle of Improved offer Principle of Reduce
- In GF strike, the union stages a strike on the offer

ground that the employer was committing ULP Compliance with the 24-hour prior notice rule
but it was later on found out that the employer o Notify the employed and NCMB of the
was not committing ULP, in the meantime the
place, date, and timeo In order for NCMB to
union held a strike without compliance with the send a representative
requirements of staging a lawful strike.
during strike votingo If no representative, not
16. LEGAL STRIKE- In conformity with the fatal. Important is
requirements that are not
that they were notified.
complied within declaring a strike
Strike VotingSubmission of the strike voting
17. ILLEGAL STRIKE- There were o 7 days waiting period Sabay tayo Doctrine
requirements that are not complied with
A:
declaring a strike
LOCKOUT
Requirements for Staging a Lawful Strike
A weapon of the employer; same Compiled by A.A. Dizon ’15-’16Updates by CRUZ.DE DIOS.RUIZ
’17-’18 Notes and comments by Dean Salvador A. Poquiz LABOR
requirements in staging a strike; refusal to RELATIONS REVIEWER
furnish work to employees
- Same day for notice of strike and strike voting
HOW TO HAVE AN EFFECTIVE STRIKE
• No prohibition provided you complied with
• There must be an effective picketing to have
a strike the 24-hour prior notice rule and other
requirements
Q: Can there be picketing without a strike?A:
Yes. Picketing is a guaranteed freedom under • During the cooling off period, an officer of the
the constitution. In the words of US SC, union was dismissed which constitutes
stranger picketing is constitutionally union busting. Q: If there is a union
guaranteed. It was resounded by the PH SC as busting, can a union immediately stage
part of freedom of expression. a strike?A: The SC said, if you have
Q: During picketing period, illegal acts already complied with other
committed affected third persons. ULP?A: Yes, requirements, you can immediately
notwithstanding no ER-EE relationship. stage a strike. You can dispense with
Doctrine of Innocent Bystander. the cooling off period but you can never
dispense with the 7-day waiting period.
Strike of Government Employees
• In the case of strikes in union hospital or
• Not applicable• They are granted the right to clinics, the parties are required to
collective negotiations • Beyond CAN establish an effective skeletal workforce.
o Matter fixed by Lawo Those that pertain to If there are patients in the emergency
and ICU area, and there are no medical
appropriation/Budget
helpers to assist, then it would be a
(constitutional prohibition) o High level problem. This is the philosophy behind
employees why there should be an effective
workforce schedule.
- PrivateSector–
- GR: NoXPNs:1. No strike no lockout clause in
CollectiveBargainingAgreement the CBA2. In case of assumption order issued
by the
Public Sector – Collective Negotiation
Agreement President3. In case of Preventive Mediation
Order
It is settle that Government Employees
cannot stage a 8. Compliance with the doctrine of means
and purposes
strike because:
- The purpose must be legal and the means
1. It will be a form of insurrection against public -
authority in the light of the principle of state used in attaining it should also be legal.
sovereignty. This principle disqualifies
government employees to stage a strike Must comply with all the requirements
2. Government employees are civil servants. Doctrine of Means and Purposes
They serve the people that is why if they strike,
such strike is a civil service offense. (PD 807) • If illegal means were committed during the
 strike, according to the SC, the union information- Kulangot Doctrine/ Confidential
cannot use slanderous, libelous, Employee
scandalous, scurrilous, utterances.
Principle: On matters of labor relations ONLY –
• If there is massive violence, also illegal.
they cannot form union4. High level employees
• In case of the declaration of illegality of in Govt Sector 5. Members of the AFP, PNP,
BJMP, BFP
strike, those who are liable for
dismissal are the officers of the Q: Can aliens or non-resident aliens form a
union under the doctrine of vicarious labor union?
liability. Q: Officers of the union
participated during strike. Liable? A: Some Government Employees who cannot
GR: Not liable for ordinary strikeXPN: strike:
If actively participated, they can be
- High level employees- Members of the AFP,
dismissed BUT must be categorically
identified, if not, violation of due PNP, BJMP, and Firemen
process. Q: Will they be entitled to
JURISDICTIONAL AREAS
economic benefits?
Q: Does the LA have jurisdiction over matters
involving certain churchmen? Austria v NLRC
A: On secular matters – YES
Page 12 of 18

3. It will affect the delivery of vital and basic On purely religious matters - NO Q: Issuance
services to the people of writ of execution

XPN: GOCCs without original charters known A: LA

as corporate offsprings or subsidiaries wherein
Q: Over third-party claims because a writ of
they can CBA and strike.
execution is issued against a party?A: LA
XPN: Section 10, RA 8042 (Compensation
Q: Money claims filed by the employees who
claims of overseas workers)
are members of a cooperative?A: Arbitration
BUREAU OF LABOR RELATIONS (BLR) Committee has jurisdiction

• Members of cooperative cannot file money

• The powers, functions, and jurisdiction of the
BLR are intertwined with the powers and claims against cooperative since they
functions of the Regional Office of the DOLE are part-owners of the cooperative Q:
Over Foreigner Government? A: LA has
• Except conciliation matters• In case of no jurisdiction Q: Over PH government?
registration of unions and federations, BLR. In A: LA has no jurisdiction Q: Under the
Principle of State Sovereignty? A: COA
case of registration of independent unions, RO
of DOLE • Any money claims filed against the
RIGHT TO SELF ORGANIZATION government should be with the COA Q:
Does LA have jurisdiction over
GR: Applies to allXPN: (Those disqualified by international agencies?A: None; imbued
law)1. Managerial employees2. Members of with functional immunities Q: Does LA
the cooperatives3. Confidential Employees have jurisdiction over intra-corporate
entrusted w/ confidential cases?A: None; RTC (no longer the
 SEC under Securities Act of 2000) (Rights of a legitimate labor organization)

• Corporate officers are created by board – LA 1. Right to representation- This applies ONLY
has no jurisdiction to union members

• If not corporate officer and he was dismissed 2. Right to be certified as the bargaining agent
in the company
– LA has no jurisdiction Q: Does LA
have jurisdiction over training - Applies to ALL employees3. Right to sue and
agreements?A: None; DOLE GR: LA be sued in its registered name4. Right to own
has no jurisdiction over - Death Claim- property5. Right to tax exemption6. Right to
engage in activities that redounds to the
Philhealth- Insurance Claim Compiled by
A.A. Dizon ’15-’16 Updates by CRUZ.DE DIOS.RUIZ welfare of the members of the union7. Right to
’17-’18 be copy furnished w/ the audited financial

A: statement of ER – upon request of union

GR: NO.XPN: Principle of reciprocity – if their Page 13 of 18 Notes and comments by Dean Salvador A. Poquiz
LABOR RELATIONS REVIEWER
country extends the same rights of Filipino
workers
← -  Employer will ONLY be
liable for ULP (Surface Bargaining) if
Q: Under the Constitution and Labor Code,
there is request coming from the union.
what is the labor organization that is
contemplated?A: Legitimate labor organization ← -  Audited FS should be
– one that is registered either with the BLR or prepared by an independent, credible,
RO of the DOLE. external auditor. Not company auditor
otherwise it would be self– serving. THE
REQUIREMENTS FOR REGISTRATION –—
RIGHT TO BE CERTIFIED AS
to be legitimate labor organization
COLLECTIVE BARGAINING AGENT
1. 2. 3. 4. Q: What is Agency Shop/ Treasury
Shop/ Anti- Hitchhiker Clause / Anti-
Free Rider Clause?A: Requires non-
Payment for registration fee Submission of the members to pay fees equivalent to the
constitutional bylaws Names of officers and amount of union dues. Q: Is there still a
membersIn case of first time registration: need to conclude an agency shop to be
concluded by the parties in the CBA?A:
- Minutes of the org meeting by Sec/ Treasurer No more need because law itself
provided agency shop. It’s in the law
of the union requested by President stating that non-union members who
received CBA benefits are required to
• If the union is already existing for some time: pay fees (agency fees) equivalent to the
- Financial statement of the union amount of union dues to support the
union that made the benefits possible.
• Upon submission, it is now ministerial on the
part of the RO of the DOLE to issue a - Or else there will be unjust enrichment.
certificate of registration compellable by
Mandamus. MODES OF DETERMINING COLLECTIVE
BARGAINING AGENCIES IN THE
LEGAL EFFECTS OF REGISTRATION: BARGAINING UNIT
1. SEBA (Sole Exclusive Bargaining Agent) declared by the election officer
CERTIFICATION Any union can file to be a (below 50% votes cast)
- -
SEBA in a bargaining unit b.There is a tie between 2 unions

Only 1 union can be certified or recognized as c.There is a tie between a union and a non-
a SEBA union
-
RUN-OFF ELECTION
Similar to Voluntary Recognition:o There is
Automatic second election rule: 50% votes cast
only 1 union in the bargaining unit o It should
but no one garnered majority voteWhen an
have majority support election which provides for 3 or more choices,
results in no choice receiving a majority of the
2. CONSENT ELECTION valid votes cast, the election officer shall motu
- proprio conduct a run-off election bet. the labor
unions receiving the 2 highest number of votes.
- Most efficacious, most expeditious manner in Provided that the total number of votes for all
determining the will of the employees contending unions is at least 50% of the
number of votes cast.
• Double Majority Rule - First Majority Rule
←
- Election voluntarily agreed upon by 2 or more
unions, w/ or w/o intervention of the RO of
• At least a majority of all eligible voters in the
DOLE, to conduct an election to determine the
bargaining unit must have cast their votes
bargaining agent in the bargaining unit.
Second Majority Rule
CERTIFICATION ELECTION (Further
discussion)
• The union receiving the majority of the valid
votes shall be certified as the exclusive Consent/ subscription requirement to
bargaining agent (provided for all contending conduct CE• 25% of all the employees in the
unions, 50% of the votes have been validly
appropriate bargaining
cast)

← unit- If met mandatory to conduct CE- If not

met, discretion of RO of DOLE
4. RE-RUN ELECTION Subsequent
- - Vote requirement
certification election
• 50% majority vote
←
Q: What if the 25% consent requirement is not
5. complied with, may a CE be conducted?A:
Discretionary upon the RO of the DOLE to
-- conduct CE.

- Reason: Because in conducting CE, even if

25% is not met, this is the most expeditious
3 instances: manner in determining will of employees.

a.There is failure of Certification Election as Q: If below 50% there is no valid CE – there is

failure of CE. If there is failure, what is the legal A: Still valid, but there is no prohibition upon
effect?A: Re-run election. If there is failure, the new CB agent to shorten the life of the
w/in 6mos, by motion, a CE can be filed. CBA.

Q: Who declares failure of CE? A: Election Legal basis:

officer
• New CB agent can move for shortening on
Q: If 50% has been complied with but no one the ground that nature of CBA is a contract in
garnered majority vote, what is the legal personam.
effect?A: Run-off election. Automatic 2nd
election. • Substitutionary doctrine: allows the
substitution of the old CB Agent with the new
← CB agent – but it will not affect the validity of
- Between & among unions in the unit, they CBA contracted by old CB agent.
have consented among themselves to conduct
60 DAY FREEDOM PERIOD
an election.

3. CERTIFICATION ELECTION (CE) • Situation wherein there are 3 or more

- choices but a “no union” won:
The process of determining thru secret ballot,
the sole and exclusive bargaining agent of the - A no union may win on account of freedom of
employees in an appropriate bargaining unit,
for the purposes of collective bargaining. religion. There are religious groups allowed by
law
- It is the sole concern of the workers/
employees not to form unions (Iglesia ni Cristo)A non-
-
union cannot exist in a run-off election.
• Bystander Rule- The employer, who has no
legal standing, is a mere bystander in Q: Why does the constitution allow certain
- religious groups NOT to join labor unions?A:
certification election Bec. Freedom of religion is freedom of
conscience
Limited to being notified or informed of the
filing of the petition for CE Q: If a no union won, does the law allow that in
a bargaining unit, there will be no union for
XPN: May file a petition for certification election some time? A: No union situation rule will be
in order to determine WON this union has the allowed only for 1 YEAR. There will be a
majority status certification to that effect that in the meantime
for 1 year, there will be no union. Those
• Sole concern Rule religious groups may still vote in CE by voting
“no union”.
• Best Forum Rule
Compiled by A.A. Dizon ’15-’16
WHO CAN VOTE IN A CERTIFICATION
ELECTION
Updates by CRUZ.DE DIOS.RUIZ ’17-’18
• CE shall be conducted in the 60-day freedom
Page 14 of 18 Notes and comments by Dean Salvador A. Poquiz period• Can also file a petition for intervention
LABOR RELATIONS REVIEWER
during this
NO UNION
period.• Federations can also file petition for bargaining deadlock – it prohibits filing of CE
disaffiliation from
OUTSIDE THE FREEDOM PERIOD RULE

A petition for CE or Motion for Intervention filed

• ALL rank and file employees • Probationary before/after the freedom period – shall be
employee• Dismissed employee dismissed outright.

NEGOTIATION BAR RULE

2.
No representation issue may be entertained, if
3.
before the filing of a petition for CE, the
4. certified bargaining union has commenced
negotiations with the employer w/in 1year from
5. date of mode of determining CB agencies.

6. - Provided he contested his dismissal.- If he

7. contested, that means the EE-ER relationship
is
--

-
just suspended.
--
Q: Do you determine the eligibility of voters in
-- the CE? A: NO. The CE is not proper forum.
The proper forum is the “Inclusion-
- Exclusion” proceedings or the pre- election
conference.
the federation of a member union.
INSTANCES WHERE CE IS BARRED/
ONE-YEAR CERTIFICATION BAR RULE CANNOT BE CONDUCTED – despite
compliance with 25% consent requirement
No CE conducted within 1 year following the
final election resultsCE may not be held within 1. CONTRACT BAR RULE
1 year from the date of issuance of final -
certification result (there was an actual conduct
of elections) CE may not be conducted during existence of
the CBA
Applies to all modes of determining CB
agencies XPN: within 60-day freedom period
immediately preceding the 5th year of such
DEADLOCK BAR RULE CBA (prior to the expiration of such CBA)
CE cannot be conducted during the existence • As to representation: 5 YEARS • As to
of a bargaining deadlockDuring the bargaining negotiation: 3 YEARS
process, bargaining may break down,
economic concessions cannot be given out by Q: What if there were negotiations, at the end
the employer – it will create a deadlocl of the 3rd year the terms and conditions were
approved by the parties, ratified by the
When you file a notice to strike due to employees.
What is the duration of the validity of such Compiled by A.A. Dizon ’15-’16Updates by CRUZ.DE DIOS.RUIZ
’17-’18 Notes and comments by Dean Salvador A. Poquiz LABOR
terms and conditions re-negotiated not later RELATIONS REVIEWER
than the end of the 3rd year of 5-year
representation aspect of the CBA?A: Period of Page 15 of 18
validity – 2 years
8. NOT LISTED IN THE REGISTRY RULE-
Q: What if the 5-year representation aspect of When the petitioner is not listed in DOLE’s
the CBA (old CBA) expired, no new CBA has registry of legitimate labor union or that is legal
been agreed upon, is there hiatus bet. the personality has
relationship of employees to the union?
been revoked or cancelled with finality.GR:
A: NONE. Automatic Renewal Clause- Law Only legitimate unions can file CE. Non-
provides that the old CBA will subsist under the registered unions CANNOT file CEXPN:
RA9481
principle of CBA continuity.
o A chartered local that is used a charter
Q: What if CBA exists, and during the lifetime certificate by a federation or national union,
of the CBA, there was a change in the CB such local chapter is granted with an imperfect,
Agent. Effect? partial, incomplete, legal personality

APPEAL BAR RULE- Any representation o Although not registered, it can file but only
issue, the one that has jurisdiction is the for purposes of CE
-
Mediation-Arbiter. Federations are composed of 2 types:

The ruling of the Med-Arbiter is directly 1) Affiliates2) Local chapters issued by

chartered
appealable to the DOLE Secretary.
- certificates
Pending resolution to the appeal, cannot file Q: May a local chapter become a full legal
CE. person?A: Yes. By submission only of the
requirements of the law
CHARGE OF COMPANY UNIONISM RULE
- • Charter certificate• Consti bylaws• Names of
officers & addresses• Local chapter’s location
This is ULP. The employer captivated the
and address
hearts and emotions of the union. Cannot
- - INSTANCES WHERE CERTIFICATION
conduct CE bec. It is a prejudicial question.
ELECTION IS
The charge of ULP shall be resolved first
Q: What if Union B filed for a CE. Union A
before you can file CE
contends that they filed outside the 60-day
Q: In the case of company unionism, can the period. Is Union A’s contention valid?A: No.
union file for CE?A: No, because SC stated Because Union B can file a petition for CE
that it is a prejudicial question which should be outside the 60-day period as XP bec of mass
resolved ahead of CE. However, there is a withdrawal, split from the majority union.
department order that said it is not a PQ. SC
COLLECTIVE BARGAINING AGREEMENT
prevails.
(Usual contents of CBA enumeration, check p.
20 of Dizon Notes)
(1) UNION SECURITY CLAUSESWHY?- For Q: If you are a lawyer of the ER, what will you
union to have a mass based support, because advise if there was a request from the union to
thru expel the said EE pursuant to the closed-shop
agreement?A: I will advise ER to observe due
this, the union will be a strong union who can process. If ER did not comply with due process
maintain its vitality in the bargaining process even if there was a closed-shop agreement, it
with the management. may amount to illegal dismissal.

“Closed shop agreement” If ER observed due process – the only relief

that may be imposed to the ER is
Q: What is the important provision that REINSTATEMENT.
should be injected in the closed-shop
agreement?A: A union member should o For other benefits: the union will be liable.
maintain his membership in good standing
to retain his employment. the employees, and registered to the RO of the

o If nowhere to be found: It is a mere hiring DOLE

agreement NOT closed shop agreement.
← -  Purpose of
registration: To bar CE

← -  IF not registered: Any

ALLOWED (Exceptions to the Contract Bar legitimate labor union can file for CE.
Rule) 1. CBA is not registered
2. CBA is incomplete/ inadequate- Because
• SC: The title or nomenclature is not of the collusion of the ER and the union,
important, what is important is the BODY which
provides the proviso that the union member the contract became a sweetheart contract that
must maintain his membership in good
standing in order to retain his employment. If does not provide substantial economic benefits
not there – construed against its existence to

← the workers. The terms

- CBAisthelawoftheplant• It shall be approved - 
and conditions are substandard,
by the parties, ratified by
← incomplete and
- A closed shop agreement must be - 
accompanied by maintenance of membership inadequate. Will not bar CE
-
shop 3. CBA has been hastily entered into or
prematurely extended
In union shop, once employed, you must
maintain membership with the contracting -
union and must maintain good standing also.
- Done outside the 60-day freedom period.-
Q: Assuming closed-shop agreement is valid,
CBAhasbeenprematurelyextended.- Doctrine
can the union request the ER to dismiss an
expelled union member?A: Yes. Upon request of premature extension – not bar CE
of the union.
(2) COMMON FORMS OF UNION SECURITY
CLAUSES HELD: The VA no less performs a state
function pursuant to a governmental power
(Enumeration, Dizon Notes p. 21) delegated to him under provisions therefor in
the Labor Code – he falls w/in term
- Some CBAs provide that upon signing the “instrumentality” pursuant to Sec. 9 BP 129 -
agreement, it has become effective, the parties The fact that this functions and powers are
are required to comply with the terms and provided for in the LC does not place him w/in
conditions of the XPNs to said Sec. 9 since he is a quasi-
judicial instrumentality as contemplated
theCBAingoodfaith.They shall be mutually therein.
-
observed in good faith. • The decision of the VA has the legal effect of
a decision of the court that is why it is
Compiled by A.A. Dizon ’15-’16Updates by CRUZ.DE DIOS.RUIZ appealable to the CA.
’17-’18 Notes and comments by Dean Salvador A. Poquiz LABOR
RELATIONS REVIEWER
GRIEVANCE:
4. In case of mass disaffiliation, mass
withdrawal or split from majority union • In the absence of a CBA, a grievance may
still be resolved. GM is not confined only when
there is CBA.
- Union A (majority union members)
• A grievance is usually initiated by the EE, but
transferred to Union B. Union A despite lack of there is no legal prohibition upon the ER to
members can initiate a complaint on matters that involve any
ambiguity in the enforcement or interpretation
(3) MUTUAL OBSERVANCE CLAUSE of company policies and collective bargaining.

Attendance in grievance machinery:

STILLbargain.Until and unless the majority
- • Parties are required to attend the GM
union is defeated in the CE, in the eyes of the procedures.• Fails to attend: This party can be
law, it is still the majority union. liable for ULP bec.

Page 16 of 18 attendance in the GM is a requirement in the

CBA• There will be a violation of the CBA and
(4) INCREASE IN WAGES this can be

illegal dismissal directly resolved by the treated as an ULP – refusal to bargain• Do not
voluntary arbitrator.HELD: It is unnecessary to want to attend because they want it to be
rule on the matter in light of the preference to
bring the illegal dismissal dispute to voluntary directed to VA - ALLOWED
arbitration w/o passing thru the grievance
machinery. OTHER MATTERS COGNIZABLE BY VA

DECISION OF THE VOLUNTARY - Economic in nature. - Escalator clause

ARBITRATOR

• The decision of the voluntary arbitrator o In the event of sudden increase in the
(VA)– appealable to the CA RULE 43 (ordinary consumer price index or cost-of-living index
appeal) pursuant to Luzon Development Bank brought about by soaring prices of prime
case: commodities
o There is an agreement bet. parties that there the intervention of the union officer
should be a corresponding gradual increase of aka SHOP STEWARD who narrows
wages. down the issues for resolution to the
highest mgt officer
o If price decreases – wages not decreased.
2.Still not resolved: It shall be brought to
(5) NO STRIKE, NO LOCKOUT CLAUSE - the resolution of the grievance
Waiver on the right to strike machinery

GR: The right to strike cannot be waivedXPN: 3.Still not resolved: It shall be submitted for
Instances when right to strike CAN BE voluntary arbitration. Q: What is the
nature of the transmittal from the
grievance machinery to voluntary
arbitration?A: The Labor Code
WAIVED: answers this in the nature of an
APPEAL Q: If instead of submitting
1. to the grievance machinery, they
addressed it directly for voluntary
2. 3. arbitration, is this allowed?A: Yes.
SC said there is no prohibition and is
No strike, no lockout clause in the CBA in accord w/ speedy labor justice.
Issuance of an assumption order Issuance of a
preventive mediation order In Central Pangasinan Case,Alleged violation
of the CBA grievance procedure is moot and
- Any notice of strike is filed at the NCMB academic. The parties’ active participation in
- the Voluntary Arbitration proceedings and
failure to insist that the case be remanded to
the Grievance Machinery – shows clear
NCMB should issue a preventive mediation intention to have the issue of respondent’s
order and the purpose of this is to convert the
notice of strike in to a preventive mediation 1.
case.
2. 3.
GRIEVANCE MACHINERY AND
VOLUNTARY ARBITRATION- Also known as 4.

Conclusive Arbitration Clause- The judicial -

aspect of the CBA
5. -
-
Cases cognizable by the grievance Cases cognizable by the LA, transmitted for
machinery VA, by agreement of the parties

- Those arising from the interpretation or - Submission agreement should be submitted

implementation of the CBA and those from the to theVAsothatVAcanrecognizethecase
interpretation or enforcement of company -
personnel policies.
2 remedies if any one of the parties does not
PROCESS: want to submit:

1.Initially grievance could be resolved w/ a) Notice to arbitrate – to compel other party to

submit for arbitration Assistant Reg. Director of the DOLE –
because they are designated EVA
b) Submission agreement by virtue of the
parties (Ex-officio VA) CBA IS THE LAW OF
-
Wage distortion problems in unionized THE PLANTIt is the fundamental
establishments Ordinary violations that will not charter that governs the relationship
amount to gross violation of the CBMatters for of the ER and the union. • IF CBA has
compulsory arbitration a conclusive arbitration clause yet a
notice of strike is filed by the union,
ex. Illegal dismissalIf illegal dismissal is union CAN BE SUBJECT OF ULP.
submitted for VA, VA can take cognizance of
other collateral matters like award of o SC: What will be the use of this clause if it
backwages and atty fees will not be complied with. CBA is the law of the
plant. If not complied with either of the parties
Productivity incentives will be liable.
VA may resolve vital industry dispute by Q: If there was incumbent bargaining agent
agreement of the parties – submission who was responsible for the CBA, approved by
agreement requiredIt is allowed: RO of DOLE the parties, but later on, there was a change in
was appointed as VA the bargaining agent under the Substitutionary
Doctrine. May a new bargaining agent initiate
Administrative Intervention in an on-going
process where the life of CBA is shortened?
dispute
A: Yes. Because the CBA is in nature, a
• There is an order of the DOLE where you
contract in personam.
can request for administrative
intervention to resolve an on-going • An APPROPRIATE BARGAINING UNIT
labor dispute on matters of means the process of grouping, classifying
interpretation of company policies workers or employees according to their
and collective bargaining employment status, qualifications, salaries,
terms and conditions.
• PROVIDED: this on-going dispute is not
subject of a notice of strike or 4 WAY TEST IN DETERMINING
subject to any labor body. It should APPROPRIATE CB UNIT (Factors of
determination)
be filed by way of request to the Sec.
of DOLE. 1. Globe Election Doctrine The express
- -
• This is also a form of arbitration DOLE
will or desire of employees test
REGIONAL DIRECTORS AND
ASSISTANT REGIONAL DIRECTORS Election conducted to determine the
AS EX- OFFICIO VOLUNTARY appropriate bargaining unit
ARBITRATORS• It is allowed on
2. Community or mutuality of interests test
matters of interpretation of company -
policies and collective bargaining•
There should be a similarity of
Whatever matters involving labor -
dispute under the administrative interest Same qualifications,
intervention of the DOLE, if the Sec. -
of Labor will not resolve it, the Sec. salaries and working conditions What
may refer it to the Reg. Director or
 is important is they have the same be charged in the future.
substantial interest. ex. Sales agents XPN: Unless the CBA provides for a
of beer in L,V.M. Should agents in credibility clause (that it can be credited
Luzon have diff. bargaining unit from against future benefits decreed by the
Visayas and Mindanao? – NO. They government)
have same qualifications, experience
and bracket of salaries.

ex. Poultry raising and Cinema – no same

interest so 1 interest = 1 bargaining unit

3. Prior collective bargaining history test

-
Consider the bargaining history between the
bargaining unit and the ER

4. Similarity of employment status test

-
Determine on account of status of employment

ex. Teachers in college and HS should not

have separate appropriate bargaining unit

CORPORATE SPIN-OFF RULE

• ALLOWED• A big company creates small

units in order to simplify

CB process.• The transformation of the

companies was a

management prerogative and business

judgement must be governed by the policy of
good faith.

STOP LOCK GATE CLAUSE

(Non chargeability clause)

••

This is the clause in the CBA where any

increase in wages or benefits in the CBA are
exclusive of other benefits that may later on
be decreed by the government, shall also be
granted to the workers

CBA benefits are exclusive to other benefits

decreed later on by the government. It cannot