7/24/2019 Labor Law Reviewer Book Five (Mindmap) http://slidepdf.com/reader/full/labor-law-reviewer-book-five-mindmap 1/43 LABOR LAW REVIEW (Book V) under Labor Arbiter Natividad Roma Cecille Carmela T. de los Reyes Philippine Christian University- College of Law
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Labor RelationsIt is the interaction between the employer
and employees or their representatives and themechanism by which the standards and other termsand conditions of employment are negotiated,adjusted and enforced.
Interaction between employer and employeesMechanism by whichStandards and other terms and conditions ofemployment are negotiated, adjusted andenforced
Labor Relation Laws
It defines the status, rights and duties and theinstitutional mechanisms that govern the individualand collective interactions of the employers,employees or their representatives.
***Note: Absent an employer-employee relation,there is no labor relation to speak of. If there is noER-EE relationship between the parties, there is nobasis for organizing for purposes of collectivebargaining.
*** Labor Relations may be distinguished from Labor Standards in that the latter is that part oflabor law which prescribes the minimum terms andconditions of employment which the employer isrequired to grant to its employees.
(a) Promote and emphasize theprimacy of free collective
bargaining and negotiations,including voluntary arbitration,mediation and conciliation as
modes of setting labor or industrialdisputes.
(b) Promote free tradeunionism
[c] Foster free andvoluntary organization
[d] Promote the enlightenment ofworkers concerning their rights andobligations as union members and
employees
Explained further in Art. 255 of theLabor Code.
[e] To provide an adequateand administrativemachinery for the
expeditious settlement oflabor or industrial disputes
[f] To ensure a stable butdynamic and justindustrial peace
[g] To ensure the participationof workers in decision andpolicy-making processes
affecting their rights, duties andwelfare.
B. To encourage a truly democratic method of
regulating the relations between the employersand employees by means of agreements freelyentered into through collective bargaining, nocourt or administrative agency or official sh all
have the power to set or fix wages, rates of pay,hours of work, or other terms and conditions ofemployment, except as otherwise provided in
the Code.
POLICY OF THE STATE TO ENCOURAGE FREEBARGAINING
Collective bargaining process is possible only whenthere is a labor organization, such as (a) labor union or(b) employee associationLabor relations is essentially an inter-party-- ER and EE
must deal with their problems in a manner that mutuallysuits them.Exception: But when the legal boundaries aretransgressed, the State will step in.
Hence, free collective bargaining agreement is the rule,while government intervention is the exception.Principle of Non-Oppression- it mandates that thecapital and labor must not act oppressively againsteach other or impair the interest and convenience of thepublic. The protection to labor clause in the Constitutionis not designed to oppress or destroy the capital (Capiliv. NLRC G.R 117378)
Parties to the Labor Relations Case:
Employee s organization (active party)The management (active party)The public —always to be considered in dispute between labor and capital, anheld that the rights of the general public are paramountThe State (passive party)
Conciliation, Mediation and Voluntary Arbitration as an alsettlement of labor dispute
Conciliation- process where a disinterested third party meets with managemat their request or otherwise, during a labor dispute or in collective bargaininwherein by cooling tempers, aids the parties in reaching an agreement.
Mediation- process where a third party studies each side of the dispute a proposal for the disputants to consider. But a mediator however cannotrender a decision.
Arbitration- the submission of a dispute to an impartial person forbasis of evidence and arguments of the parties. (Position papersdecision or award is enforceable upon the disputants, which may be eithercompulsory
Note that: grievancemechanism/ machineryis mandatory in theCBA
Participation in the decision and policy-making processes is limited to which
affects the employees rights, duties andwelfare (example: economic benefits)Union should be allowed participation indrafting the Code of Discipline (PAL)But in purely business matters/ initiative, itis usually within the ambit of themanagement prerogative.
The labor organization designated or selected by the majority of theemployees in an appropriate collective bargaining unit shall be theexclusive representative of the employees in such unit for the purpose ofcollective bargaining. However, an individual employee or group ofemployees shall have the right at any time to present grievances to theemployer.
Any provision of the law notwithstanding, workers shall have the right,subject to such rules and regulations as the Secretary of Labor andEmployment, may promulgate, to participate in policy and decision-making processes of the establishment where they are employed insofaras said processes will directly affect their r ights, benefits and welfare.
For this purpose, workers and employers may form labor-managementcouncils: Provided, that the representatives of the workers in such labor-management councils shall be elected by at least the majority of allemployees in the said management.
No court shall have the power to set orfix wages, except:
(a) Increase in wages by theNational Wages and ProductivityBoard (NWPB)(b) Petitions for assumption of
It means the NLRC or any of its divisions, as thecase may be, provided under this Code.
It means the Bureau of Labor Relations (BLR) and/or theLabor Relations Division in the regional offices establishedunder P.D. 1 in the Department of Labor
It means the Bureau of Labor Relations (BLR) and/or theLabor Relations Division in the regional offices establishedunder P.D. 1 in the Department of Labor
It means the Tripartite Voluntary Arbitration AdvisoryCouncil established under EO 126 as amended
It includes any person acting in the interest of employerdirectly or indirectly. The term shall not include any labororganization or any of its officers or agents except whenacting as employer.
It is one who employs the services of others; one for whomemployees work and who pays their wages or salaries. (FeatiUniversity v. Bautista, G.R. L-21278)
Any person acting in the interest of an emplo yer, directly or indirectly.The term does not include a labor organization or any of its officers oragents, EXCEPT when acting as an employer. In this case, the merefact that the respondent is a labor union does not mean that it cannotbe considered as an employer for persons who work for it. Much lessshould it be exempted from labor laws. (Bautista v. Inchiong, G.R. L-
52824)
It includes any person in the employ of the employer. Theterm shall not be limited to the employees of a particularemployee, unless the Code so explicitly requires.
It shall include any individual whose work has ceased as aresult of or in connection with any current labor dispute orbecause of any unfair labor practice if he has not obtainedany other substantially equivalent and regular employment.
CED
C- any individual whose work has CEASED as a result ofany current labor dispute.
E- any person in the EMPLOY of an employer.
D- one who has been DISMISSED from work but the legalityof dismissal is being contested in a forum of appropriate
jurisdiction.
Any union or association of employees which exists inwhole or in part for the purpose of collective bargaining or ofdealing with employers concerning terms and conditions ofemployment.
Types of Employees under th
1. Managerial2. Supervisory 3. Rank-and-file
Also take note that illegallemployees if (a) dismissed b(b) has not yet obtaineequivalent and regular empl
probationary in the new employee.
Any labor organization which is du ly registered with DOLE,the term includes a local/chapter directly chartered by alegitimate federation or national union which has been dulyreported to the Department in accordance with Section 2,Rule IV, Book V, IRR of LC (See notes under Art. 234 and
Labor Organization v. Employees Association
1. Labor organization- collective bargaining and for dealing
with employer regarding terms and conditions.
2. Employees Association- It can b e for the mutual aid ofthe employees.
Compensation (underpayment of minimumwage, stringent output quota, illegal paydeductions)Benefits (nonpayment of holiday pay,overtime pay or other benefits)Working conditions (unrectified workhazards)
Organizational right dispute/ unfair labor practice (coercion, restraint, inferencin unionization efforts, reprisal or discrimination due to union activities, compaunionism)Representation disputes (determination of the collective bargaining unit, ULPstrike, uncertainty as to determination of the sole and exclusive bargaininagent of the employees in an appropriate bargaining unit which is the majorityunion)Bargaining disputes (refusal to bargain or ULP, bargaining deadlock, economicstrike or lockoutContract administration or personnel policy disputes (non-compliance with thCBA provisions, ULP if gross non-compliance with the economic provisiodisregard of grievance machinery, violation of no-strike or no-lock
An administrative body with quasi-judfunctions and the principal governmagency that hears and decides labmanagement disputes, attached to tDOLE for program and policy coordinaonly.
It is independent from DOLE, attached tonly for program and policy coordinaonly.
Commissioners are the same rank as C justices, arbiters and RTC judges.
Composition
1 Chairman and 23 MembersEight (8) members each, shall be chosenominees of workers and employers organThe Chairman and the seven (7) remainifrom the public sector, with the latter to bamong the incumbent Labor Arbiters.Upon assumption into office, members nand employers organization shall divaffiliation with, or interest in the federatithey belong.
Note: The NLRC composition is trisecrepresentation of three sectors —publand workers —in the policy-making bTripartism is observed in numerous ginstrumentalities among them, the NLRC.
There is no need for the Comission on Apppositions in the NLC. Such requirement has(Calderon v. Carale, G.R. 91636)
Definition
NLRC acts En Banc when they:
Promulgate rules and regulations governingthe hearing and disposition of casesFormulate admin policies
Allow cases within the JD of any division tobe heard and decided by another divisionRecommend appointment of Labor Arbiter They decide and do stuff in divisions of
three (3) commissioners. An individualcommissioner has NO adjudicatory power.
En Banc
Division
Eight division each with three membersExclusive appellate JD over cases withintheir respective territorial jurisdiction,appealed from the Labor Arbiter
But the division shall have original jurisdiction in two instances:(1) Petition for injunction(2) Certified national interest labordisputes which are referred to thecommission for compulsory arbitration(Art. 263, g)
Adjudication ofCases
The NLRC adjudicates cases by division. A concurrence of 2 votes is needed for a valid judgment.(Since 3 members each per division)(Whenever the required membership in a division is notcomplete and the concurrence of the commissioners toarrive at a judgment or resolution cannot be obtained, theChairman shall designate such number of additionalcommissioners from the other divisions as may benecessary)It shall be mandatory for the division to meet for purposesof consultation.The conclusion of a division on any case submitted to itfor decision should be reached in consultation before thecase is assigned to a member for the writing of theopinion.
A certification to this effect signed by the presidingcommissioner of the division shall be issued (copyattached to the record of the case and served upon theparties)
Jurisdiction
Exclusive and Original JD
Certified cases- cases certified to it for compulsory arbitration by theSecretary of Labor under Art. 263 or the President under Art. 264Injunction cases under Art. 218 and 264, an dContempt cases
Exclusive Appellate JD
Cases decided by the LA under Art. 217 of the Labor Code and Sec. 10 ofRA 8042 Migrant Workers Act) andCases decided by the Regional offices of DOLE in the exercise of itsadjudicatory function under Art. 129 of the Labor Code over monetaryclaims of workers amounting to not more than P5k.
Note that: findings of facts of a labor tribunal are accorded with utmost respectby the courts and well-nigh conclusive if s upported by substantial evidence.
Note also that barangay conciliation is NOT applicable in labor cases, sinceordinary rules of procedure are merely suppletory in character vis-à-vis labordisputes which are primarily governed by labor laws. (Montoya v. Escayo G.R.82211)
(Art. 215) Headquarters,Branches and
Provincial ExtensionUnits)
The Commission and its first,second, third, fourth, fifth andsixth divisions shall have theirmain offices in MetropolitanManila, and the seventh andeighth divisions in the cities ofCebu and Cagayan de Oro,respectively.
(Art. 216) Salaries,Benefts and other
Emoluments
The Chairman and members of theCommission shall have the same rank, receivean annual salary equivalent to and be entitledto the same allowances, retirement andbenefits as, those of the Presiding Justice and
Associate Justice of the Court of Appeals,respectively.Labor Arbiters shall have the same rank,receive annual salary equivalent to and beentitled to the same allowances, retirement andother benefits and privileges as those of the
Exercise of managementprerogative is initiated by law, CBAand general principles of fair playand justice. Moreover, it must beduly established that theprerogative being invoked is amanagerial one.
There s a differemanagement regarding business opse and those whicrights of EEs. Inmanagement should s
the EES are at leinformed of its dactions.
Participation does not mean thatthe EEs will control the decision-making. It means that they mustbe consulted. In the end,management will still prevail. (PALv. NLRC)
The existence of a labor dispute isnot negated by the fact that theplaintiff and defendants do notstand in the proximate relations of
ER-EE.
The issue of whether or not thefederation has reasonable groundsto expel the petitioner unionofficers is within the jurisdiction ofthe BLR, it being an intra-unionconflict.
For a labor organization toenjoy all the rights andobligations of a legitimatelabor organization, it mustbe registered.
If majority of the employees refuse to adhereto a work schedule, this constitutes strike ininstallment which is illegal. (Interphil EU-FFWv. Interphil, wherein the employees resortedto overtime and boycott and slowdown tocoerce the employer to accede to theirdemands.
Runaway shop is an industrial plantmoved by its owner from onelocation to another, to escape unionactivities. In other words, therelocation is motivated by anti-unionanimus rather than for businessreasons.
Except as otherwise provided under this Code, the LA shall haveoriginal and exclusive JD to hear and decide, within 30 calendar daysafter the submission of the case by the parties for decision withoutextension, even in the absence of stenographic notes, the ff. casesinvolving all workers, whether agricultural or non-agricultural:
(1) ULP(2) Termination disputes(3) If accompanied with a claim for reinstatement, those that workersfile involving wages, rates of pay, hours of work and other terms andconditions of employment(4) Claims for actual, moral, exemplary and other forms of damagesarising from ER-EE relations(5) Cases arising from violation of Art. 264 (strikes and lockouts),including questions involving the legality of strikes and lockouts(6) Except claims for Employment Compensation, Social Security,Philhealth and maternity benefits all other claims arising from ER-EErelations, including those persons in domestic or household service,
involving an amount exceeding P5,000.00 regardless of whetheraccompanied with a claim for reinstatement.(7) Monetary claims of overseas contract workers arising from ER-EErelations under Migrant Workers Act of 1995(8) Wage distortion disputes in unorganized establishments not
l il l d b h i RA 6727
Exclusive and Original JD of Labor Arbiters
Compulsory arbitration- the process of settlement of labor dispby a government agency that has the authority to investigate make an award which is binding on all parties. (The Laclothed with original and exclusive jurisdiction to compulsory arbitration —but once on appeal to the NLRClonger part of the arbitration proceedings as the NLRC mreviews the decision of the Labor Arbiter)
Of all the cases within the JD of the LA, the parties maagreement, go to a voluntary arbitrator instead. (The law prvoluntary arbitration, instead of compulsory arbitration)
The common element in cases which go under the LA iexistence of employment connection, where law of resolutionapplies (is the Labor Code or the Civil Code which will apply?)
On termination disputes, the termination disputes which are refeto are those which does NOT involve enforcement or interpretaof personnel policies (Read with Art. 261)
On strike cases, the Labor Arbiter has the duty to determinel li f ik d l k
If it is against the LA- a fine notexceeding 100, or imprisonmentnot exceeding 1 day or both
If it is against the Commission, afine not exceeding 500, orimprisonment not exceeding 5days or both
If indirect contempt:
Follow the manner prescribed inRule 71 of the ROC
Main consideration is substantial andirreparable injury to complainant sproperty which is:
beyond repair and that business has to prove it willnot be able to recover.
Permanent injunctions can only be issuedafter hearingTROs last only for 20 days and must beplacedIssuance of a TRO ex parte is not per seprohibited. It must be justified byconsiderations of extreme necessity —when the commission of unlawful acts iscausing substantial and irreparable injuryto company properties and the company isbereft of any adequate remedy by law.
Must be within office hours.
Conduct an ocular inspection on anyestablishment, building and the like
As any employee, laborer or anyperson for any info concerning anymatter relative to the object ofinvestigation
Requisites before restraining order/ injunction mayissue:
File a verified petitionHearing after due and personal notice has been servedReception at the hearing of the testimony of witnesseswith opportunity for cross examinationFinding of fact of the Commission that:
(a) prohibited and unlawful acts are committed andwill be continued unless restrained(b) That substantial and irreparable duty willfollow without the restraining order [c] That complainant has no adequate remedy bylaw[d] That complainants has no adequate remedy atlaw[e] That public officers charged with the duty to
protect complainant s property are unable orunwilling to furnish adequate protection
Requisites before a TRO may be issued ex parte:
Where substantial and irreparable injury will beunavoidableThere is a testimony under oath to justify theCommission in issuing a TROThe complainant shall first file an undertaking withadequate amount to be fixed by the Commissionsufficient enough to recompense any lossThe TRO shall be effective no longer than 20 days andshall become void at the expiration of 20 days
In absence of service of summons or a valid waiverthereof, hearings and judgment rendered by the Labor
Arbiter are null and void.
The procedural and substantial requirements of Art. 218
must be strictly complied before an injunction may beissued in a Labor Dispute.
Who may issue TRO/Injunctions in LaborDisputes?
President (Art. 263, g)Secretary of Labor (Art. 263)Labor Arbiters (Art. 217)NLRCRegional DirectorsMed-arbiters
An amicable settlement of a labor dispute shoube approved by the labor arbiter before whom tcase is pending after being satisfied thvoluntari ly entered by the part ies andexplained the terms and consequences thereof.
PURPOSE: for the employee s protectlabor arbiter before whom the case is pending be in a better position than just any labor arbpersonally determine the voluntariness oagreement and certify its validity.
An amicable settlement of adispute should be approved blabor arbiter before whom the pending after being satisfied was voluntarily entered by the and after having explained theand consequences thereof.
Res judicata applies only to judicial or quasi-judicialproceedings and not to theexercise of administrativepowers.
Formal or trial-type hearing is not at allessential to due processIt is enough when parties are afforded
fair and reasonable opportunity toexplain their sides of the controversyLabor cases can be decided on thebasis of position papers and otherdocuments submitted by the partiesThe Rules however encouragecompromise settlement but they have tobe approved by the Labor Arbiter.The LA shall exert efforts towardamicable settlement.
They can be settled at anyproceeding, at any point/ time ofthe proceeding.
General rule: Only lawyers can appear before theNLRC, or any Labor Arbiter Non-lawyers may appear in court if:
1. He represents himself as a party to the case.2. Represents a legitimate labor organization.3. Represents a member or members of alegitimate organization existing in theestablishment.4. Duly accredited member of any legal aid officeand recognized by the DOJ or the IBP.5. He is the owner or president of a corporationor establishment party to the case.
Bureau of LaborRelations Grievance Machinery Voluntary Arbitration Labor Arbiter NLRC
Inter-union disputeIntra-union disputeLabor Management Relations exceptinterpretation or implementation ofthe CBA
Interpretation and implementation ofthe CBAInterpretation and enforcement ofcompany personnel policies
(Note that it is the labor arbiter and n otthe grievance machinery which has
jurisdiction over dismissal pursuant tothe union security clause)
Unresolved grievances Agreement on other labor dispute(Bargaining deadlock, ULP)
ULPTermination disputesReinstatement with cases involvingwagesClaims of damages arising fromemployer-employee relationship
Cases involving prohibited acts instrikes
(Bombo Radyo v. SOLE) If theemployer-employee relationship hasceased, claims for payment of monetarybenefits arising out of that relationshiphas to be referred to the NLRC-Labor
Arbiter because it has JD in view oftermination of ER-EE
Hence, if there is still ER-EErelationship, Labor Arbiter nor the NLRChas jurisdiction.
So
NLRC = determination of ER-EErelationship in termination cases
DOLE= enforcement of labor standardprovisions so dapat established na mayemployer-employee relationship natalaga
If no employer-employee relationship, tothe regular courts
Appellate jurisdiction over Labor ArbitersRule-making powersInjunction
Contempt
Grounds for judicial review ofdecisions of voluntary arbitrators
Grave abuse of discretionLack of jurisdictionViolation of due processDenial of substantial justiceErroneous interpretation of the law
National Conciliation and MediationBoard (NCMB)- strikes
Abuse of discretion on the part ofLabor Arbiter or Compulsory
Arbitrator If decision or order was securedthrough fraud or coercionIf made purely on questions of lawIf serious error in the findings offacts are raised
GROUNDS
Decisions of Regional Director5 calendar days from receipt of order.
Decisions of Labor Arbiter 10 calendar days from receipt of decision. Note
that, the appeal must be under oath and must specificallystate the grounds relied upon and the supportingarguments. If the last day falls on a holiday or weekend,file on the next business day.
Petition for relief from the decision of the labo r arbitermust strictly comply with these two reglementary period:
Petition must be filed within 60 days from knowledgeof judgmentWithin a fixed period of 6 months f rom entry of such
judgment
PERIOD WITHINWHICH TOAPPEAL
No —the period of appeal tocases decided by theRegional Director and theLabor Arbiter is neverextendible. It is the policy ofthe state to settleexpeditiously labor disputes.
IS THE PERIOD TOAPPEAL EXTENDIBLE?
File verified memo of appeal within requiredperiod of appealIn case of monetary award, the employer shouldfile a bond either in the fo rm of cash deposit orsurety corresponding to the monetary award
excluding awards for moral, exemplary damagesand attorney s fees
Appeal fee is P110Furnish other parties with the memo of appeal
If the employer fails to post a bond to perfect theappeal, the remedy of the employee is NOT petitionfor mandamus but a motion to dismiss appeal.
The intention of the lawmakers is to make the bondan indispensable requisite for the perfection of anappeal by employer.
REQUISITESBEFORE APPEAL
TO NLRC ISPERFECTED
The LA decision orderingreinstatement of a dismissed orseparated employee shallIMMEDIATELY BE EXECUTORYThere is no need for the arbiter toissue a writ of execution on thereinstatement order as it is self-executory (Pioneer TexturizingCase)
EXECUTIONPENDING APPEAL
He can admit the dismissed employeeback to workHe can reinstate the employee merely inthe payroll
Note that: failing to exercise any option maycompel the employer under pain of contemptand the employer may be made to payinstead the salary of the employee.
Abuse of discretion on the part of Labor Arbiter or Compulsory Arbitrator If decision or order was secured throughfraud or coercionIf made purely on questions of law
If serious error in the findings of facts areraised
APPEAL FROM THENLRC DECISION
The decision of the Secretary of Labor,Commission, Bureau or Regional Director, L
Arbiter, Med-arbiter or Voluntary Arbitratorbe final and executory after 10 calendar daysfrom receipt thereof by the parties.Upon its initiative or upon motion of anyinterested party, they may issue a writ ofexecution on a judgment within 5 years fromdate it becomes final and executory.The immediate execution should be undertakonly when the monetary award has beencarefully and accurately determined by theNLRC and only after the employer is given topportunity to be heard and to raise objectio
Intra-union conflicts All disputes, grievances orproblems arising from oraffecting labor-management relations inall workplaces whetheragricultural or not
Cases where BLRhas no JD
Those arising fromimplementation ofcollective bargainingagreements which shallbe subject of grievanceprocedure and/ orvoluntary arbitration
Intra-union
Disputes
Includes all disputes or grievances arisingfrom any violation or disagreement overany provision of the Constitution and by-laws of a union.
It also includes the violation of the r ightsand conditions of union membershipprovided in the Labor Code.
(Intra meaning within the labor organizationand the employers lang)
Inter-union
Disputes
Refers to questions involving orarising out of representation disputesbetween or among different unions.
It also includes other conflicts whichlegitimate labor organizations may haveagainst each other based on anyviolation of their rights as labororganizations.
Note that:
Since the BLR exerciseslabor-management relations,the Med-arbiter HAS THE
AUTHORITY to determinethe existence of employer-employee relationship.
Requirementsin
Filing Cases
If it involves the e ntire membership(a) The complaint must be signed by atleast 30% of the entire membership ofthe union (b) and it must showexhaustion of administrative remedies
If it involves a member onlyIn such cases only the member may filea complaint
AdminFunctions
Regulation of registration oflabor unionsKeeping of registry of laborunionsMaintenance of a file ofCBAs
Has absorbed all the conciliation,mediation and voluntary arbitrationfunctions of the BLR
Quitclaim, in relation to labor law, is defined as a waiverof claim by an employee against his employer.
Requisites for a valid quitclaim:
Must be voluntarily arrived at by the partiesMust be within the assistance of BLS (Bureau of LaborStandards), BLR or any representative of the DOLEThe consideration must be reasonable
If filed WITHOUT the assistance of DOLE it is validbinding within the parties but the parties can still go to theNLRC and repudiate the agreement.
If filed WITH the assistance of DOLE, it shall be finaand binding between the parties, except: (1) in case ofnon-compliance with the compromise agreement (2) Ifthere is evidence that the settlement is obtained by fraud,coercion or misrepresentation —In such cases, the NLRCmay assume jurisdiction.
A labor organization is any union orassociation of employees whichexists in whole or in part for thepurpose of:
(a) collective bargaining(b) of dealing with employersconcerning the terms andconditions of employment
DEFINITION
For securing a just and fair wage and good workingconditions for laborers, and for protection of laboragainst unjust exactions of capital.
Reason for requirement of registration?
It is a condition sine q ua non for the acquisition of a legalpersonality. After registration, it becomes juridical personand would seek recognition from management as SAEBA(sole and exclusive bargaining agent)
PURPOSE
For Independent Labor Union
Written application verified by the Sec/ Treasurer, attestedto by the President
Names of members comprising at least 20% of employeesin the bargaining unit where it seeks to operate
Non-existence of CBA
If CBA exists, state in the application that it is filed within thefreedom period.
It shall be accompanied by these at tachments:
Registration fee for P50.00Names and officers and their addressesMinutes of the organizational meetingList of workers who participated in the organizationalmeetingNames of all members and employees in the bargaining unit
Annual financial report, if the applicant has been existing forat least one year Four copies of CBL (constitution and by-laws)Minutes of the resolution of the CBL and the l ist of memberswho participated in the bargaining unit concernedIf there exists a CBA submitted to the DOLE, a swornstatement that the application for registration is filed duringthe last 60 days of the agreement.
REQUIREMENTSBEFORE A LABOR ORGMAY BE REGISTERED
IN THE BLR
Mandamus is the properremedy for unjustified refusalof Bureau in approving theapplication and thecorresponding issuance ofcertificate of registration, itbeing a ministerial duty.
What is the remedyfor unjustified
refusal of BLR?
Federation is an association of national unions.
Requirements before a federation can be issuedcertificate of registration:
ApplicationProof of affiliation of at least 10 lo cals orchapters each of which must be: (a) dulyrecognized collective bargaining agent (b)supports the registration of such applicantfederation or national unionThe names and addresses of the companieswhere the locals or chapters operate and thelist of all members in each companyinvolved.
FEDERATION
For Local Chapters
Application formCharter certificate issued by the federation or
national union indicating the creation/ establof the local chapter Names of local/ chapter officers, their addresand principal officeLocal/ chapter s CBL, provided that wherechapter s CBL is the same as the federation national union, the fact shall be indicatedaccordingly
Public Sector (a) Employees Organization(b) Public Sector Union
Private Sector (a) Federation/ National Union(b) Chartered Local Union[c] Independent Union
KINDS OFLABOR ORG
Yes, but it depends whether the Union is individual ly registered or not
If independently registered, the affiliation is by signing a contract ofaffiliation with the labor union and the regi stration of such contract withthe BLR.
If NOT independently registered= affiliation is done by application withthe federation so it may be issued a charter certificate-- to be filed withthe BLR.
What if it DISAFFILIATES?
If independently registered, the disaffiliation with the union would notaffect its being a legitimate labor organization and therefore wouldcontinue to have the rights and privile ges of a legitimate organization —CBA will still be valid.
If NOT independently registered= it would cease to be a legitimatelabor organization and would therefore no longer have the legalpersonality.
May a localunion affiliate
with a federation?
Yes, provided that:
(1) Federation is not activelyinvolved in union affairs;
(2) Rank-and-file employees arenot directly under the control of thesupervisors
Can a union of supervisory EEs
affiliate with federation ofrank-and-file employees?
Art. 236. Denialof Registration
Denial of registration by theBLR is appealable to theSecretary of Labor within 10calendar days from receipt, ongrounds of:
1. Grave abuse of discretion2. Gross incompetence
Art. 238. Cancellationof Registration,
Appeal
Certificate of registration may be
cancelled by the BLR if it has reasonto believe after due hearing that thesaid labor organization no longermeets one or more of the requirementsherein prescribed.
Appeal may be filed within 15 daysfrom the receipt of Decision to theSecretary of Labor.
Misrepresentation, false statement or fraud in connection wadoption or ratification of CBL, (2) minutes of ratification (3) list ofmembers who took part in the ratificationFailure to submit document within 30 days from adoption orratification of CBL and its amendmentsMisrepresentation, false statement, fraud in connection with:
(a) Election of officers(b) Minutes of election of officers, list of voters, failure t
these documents together with the list of newly-elected/appointed officer[c] Within 30 days from election
Failure to submit the annual financial report to the BLRdays after closing of every fiscal year, and misrepresentation, fraud,and false entries)Acting as a labor contractor or engaging in a cabo (conout of work) system or otherwise engagement in any prohibitedactivityEntering into CBA which provides terms and conditions of
employment WITHIN the minimum standard provided by lawAsking for or accepting attorney s fees or negotiation fees frothe employersOther than mandatory activities under this Code, checking off specialassessment or any other fees without duly signed individual writtenauthorization of the members,Failure to submit list of individual members to the Bureauyear of whenever required by the BureauFailure to comply with the requirements under Art. 237 and 238.(with respect to federal/ national unions)
Remedy in case the BLR should cancel theunion registration:
Appeal to the Secretary of Labor within 10calendar days on the ground of (1) graveabuse of discretion (2) gross incompetence ofthe BLR
Should the SOLE affirm the Bureau s decision,file before SC under Rule 65.
No special assessment or other extraordinaryfees may be levied upon the members of a labororganization UNLESS:
(a) authorized by written resolution of amajority of all members at a generalmembership meetings
The secretary of the organization shall recordthe minutes of the meeting including:
(a) List of all members present(b) Votes cast[c] Purpose of assessment or fees
Which shall be attested to by the President
The REQUIREMENTS when it comes to specialassessment are as follows:
There must be a written resolutionThe resolution must have been approved by amajority of all members
Approval must be at a general membership dulycalled for the purpose
Requirements inMaking aSpecial
Assessment
GENERAL RULE Art. 241: No special
assessment, attorney s fees, registration fees orany other extraordinary fees may be checked offfrom any amount due an employee —WITHOUTan individual written authorization duly signed bythe employee.The authorization should specifically state the:(a) amount (b) purpose [c] beneficiary ofdeduction
EXCEPTION to the requirement of individualwritten authorization —(a) the law does notrequire it when it comes to mandatory feesunder this Code (b) when non-union membersavail of the CBA benefits.
Requisites fora Valid Check-off?
It is a method of deducting from anemployee s pay at prescribed period, theamounts due to the union for fees, fin es orassessment.
In special assessment, there must be awritten resolution authorized by majority ofthe members at a general meeting called forthe purpose.
Purpose of check-off- to facilitate thecollection of dues necessary for the union slife and sustenance.
What isCheck-off?
Political Right- right of members to vote and be voted for
Deliberative and decision-making right- members rightto participate in deliberations on major policy questions anddecide them by a secret ballot
Rights over money matters- right of members against (a)excessive fees (b) unauthorized collection of co ntributionsor unauthorized disbursements [c] require adequaterecords of income and disbursements (d) access fi nancialrecords (e) vote on officers compensation (f) vote onspecial assessment (g) to be deducted special assessmentonly with the members written authorization
Undertake activities for benefit ofmembersSue and be suedExclusive representative of allemployeesRepresent union membersFurnished by employers of auditedfinancial statementsOwn propertiesExempted from taxes
Rights ofLLO
Where a union is a labor party in aproceeding and it later loses itsregistration permit during the pendency ofthe case, such union may still continue as
a party without need of substitution ofparties, subject however to theunderstanding that whatever decision maybe rendered therein will only be bindingupon those members of the union whohave not signified their desire to withdrawfrom the case before its trial and decisionon the merits.
Effect of Cancellationof Registration in the Course of
Violate the con sti tut ional r ight ofworkers and employ ees to self- organization Inimical to the legitimate interest of bothlabor and management, including their rightto bargain collectively and otherwise dealwith each other in an atmosphere offreedom and mutual respectDisrupt industrial peaceHinder the promotion of healthy and stablelabor-management relations
(a)To interfere with, restrainor coerce employees in theexercise of their right to self-organization
(b) To require as a conditionof employment that aperson or employee —(a)shall not join a labororganization (b) shallwithdraw from one to whichhe belongs
[c] To contract out servicesperformed by union members —when such will interfere with theemployees right to self-organize(example: contracting outservices during strike)
[d] To initiate, dominate orotherwise interfere (1) with theformation of labor organization(2) including the giving offinancial or other support to itsorganizers or officers
[e] DISCRIMINATION Todiscriminate in regard to wages,hours of work and other termsand conditions of employment —in order to encourage ordiscourage membership in anylabor organization
Whenever the benefits or privileges given to one is notgiven to the other under similar or identical conditionsWhen directed to encourage or discourage unionmembershipTo dismiss, discharge or otherwise prejudice ordiscriminate against an employee —for having given orabout to give testimony under the CodeTo violate the duty to bargain collectively as prescribed bythe CodeTo pay negotiation or attorney s fees to the union or itsofficers or agents —as part of the settlement of a ny issuein collective bargaining or any other disputesTo violate a CBA —which must be gross and must pertainto the economic provisions only.
Test of Discrimination? Yellow Dog Contract = a promise exacted fromworkers as a condition of employment that they are notto belong to, or attempt to foster a union during theirperiod of employment.
It is contrary to public policy for it is tantamount toinvoluntary servitude.
It is entered into without consideration for employees towaive their right to self-organization. Employees arecoerced to sign contracts disadvantageous to theirfamily.
It prohibits discrimination in terms andconditions of employment in order toencourage or discourage membershipin the union
It gives validity to union securi tyagreements
It allows an agency shop agreement whereby agency fees may be collectedfrom non-union members
Three components of Art. 248 onDiscrimination
Does Art. 248 mean that an emcontract out w
No. Contracting out per se is not Uwhen the following conditions exi
The services contracted out arby union membersSuch contracting out interferescoerces employees in the exerself-organization.
However, when the contracting-ouminimize expenses, then it is a val
To restrain or coerce emplo yeein the exercise of their r ight tself-organization.
However, a labor organization sh
have the right to prescribe its orules with respect to the acquisitor retention of membership
To cause or attecause an employerdiscrimi nate agains
employee.
To violate the duty orrefuse to bargaincollectively with employer
To cause or at tempt to cause anemployer to pay or deliver or agreeto pay or deliver any money or otherthings of value in the nature ofexaction, for services which are not
performed or not to be performed,including the demand for a fee for union
negotiations (featherbedding)
To ask for or acceptnegotiat ion or at torney sfees from employers as
part of the settlement of anyissue in collective bargainingor in any dispute
To violate aCBA.
PERSONS CIVILLY LIABLE FOR ULP
Officers and agents of employer Labor organization, officers and agents
Title 7 Collective Bargaining andAdministration of Agreements
Procedure inCollective
Bargaining
It is the negotiation byorganization or group of workin behalf of its members, withemployer, concerning wages, hoof work or other terms conditions of employment andsettlement of disputes negotiation between an empland the representative of employees.
MeaningWritten notice with statemproposalsReply by the other partyIn case of differences, either parequest for a conferenceIf not settled NCMB may intervencourage the parties to submdispute to a voluntary arbitrator If not resolved, the parties ma
where they want and resort to anlawful means
Procedurein CBA
CBA is a negotiated contract between alegitimate labor organization and the
Scope of CBA
Mandatory provisions of the CBA
WagesHours of workGrievance machineryVoluntary arbitrationFamily planning
Rates of payMutual observance clause
In addition, the Bureau requires that theCBA should include a clear statement of the
Title 7 Collective Bargaining andAdministration of Agreements
Duty to BargainCollectively
where there isCBA
A group of employees of a givenemployer, comprised of all or lessthat all the entire body ofemployees, consistent with equityto the employer —indicate to bebest suited to serve the reciprocalrights and duties of the partiesunder the collective bargainingprovision of the law.
Bargaining Unit
The express will or desire oemployees (Globe Doctrine)The substantial and mutinterest factor Prior collective bargaining histoEmployment status, such temporary, seasonal probationary employee
Four FactorsIn Determiningthe AppropriateBargaining Unit
Similarity in the scale and manner of determiningearnings
Things to Consider inDetermining the Community
Interest DoctrineAutomaticRenewalClause
1. By selection =certification election
Voluntary recognition/direct certification underEO 111 is no longerallowed
Aimed at determining theSAEBA (sole and exclusivebargaining agent) of all theemployees in an appropriatebargaining unit for the purposeof collective bargaining
An agreed one, its purposebeing merely to determine theissue of majority representationof all workers in the appropriatecollective bargaining unit
Separate and distinct fromconsent election
From the very nature ofconsent election, it is aseparate and distinct processand has nothing to do with theimport and effect of acertification election.
What is the effect of voluntary recognition by the employer?
By voluntary recognition of the employer, the labor organizationorganized by the employer as the exclusive bargaining agent maycollectively bargain with the employer.
When is conductof CE mandatoryon the part of the
BLR?
In an unorganized company —
(a) upon filing of a verified petition by alegitimate labor organization
(b) upon filing of a petition by the employerwhen such employer is requested by theemployees to bargain collectively In an organized company upon filing of a
verified petition by a legitimate labororganization questioning the majority statusof the incumbent bargaining agent withinthe 60-day freedom period before theexpiration of CBA
The petition must be supported by
the written consent of at least 25% ofall the employees in the appropriatebargaining unit.
Note that: in case the establishment isorganized, the employer cannot file apetition for certification election, only alegitimate labor organization may filesuch petition.
When may a labororganization filefor certification
election
When the establishment isnot organized, it can file apetition for CE at any time,subject however to the ONE-ELECTION-PER-YEAR rule.
In an organized establishment,
(a) when there is CBA —the labor organization cpetition for certification election within the 60-day freperiod (CONTRACT-BAR RULE)
(b) when there is no CBA —then the labor organizafile a petition for certification election at any time, subjthe Deadlock bar rule.
Deadlock bar rule —a petition for CE can entertained if there is no pending bargaining deadsubmitted to conciliation or arbitration or had becomesubject of a valid notice of strike or lockout.
Requisites before a labor union may be declared awinner:
Majority of the eligible voters cast their votesObtained majority of the valid votes cast (double majo
What is the total number of votes cast? 550 votesWhat is the total number of VAL ID VOTES cast? (eliminatespoiled ballots) 520 votes (minus 30 spoiled ballots)Was there a valid certification election? Yes, because majority ofthe bargaining unit have voted.Which union will be the SAEBA? None, because no union hasmajority of the valid votes cast. (550 / 2 =275 +1 = 276) No unionhas 276 votesWhat else may be done to elect the SAEBA? Run-off election
Run-off shall be conducted:
(a) Between the labor union receiving thetwo highest number of votes
(b) Provided that the total number of votesfor all the contending unions is at least50% of the total votes cast
Ang mag rurun-off election ay Union A and B, because:
They are the labor unions which have the two highest number of votesTheir total number of votes combined is more than 50% of the total votes cast
CONTRACT BAR RULE provides that while a valid andregistered CBA is subsisting, the BLR is not allowed tohold an election contesting the majority status of theincumbent union.
Exception to the Rule:
Where it is shown that because of a schism in the unionthe contract can no longer serve to promote industrialstability, and the holding of election is in the interest ofemployees right in the selection of their bargainingrepresentativesBasic to the contract bar rule is the proposition that thedenial of the right to select representatives can be
justified only when stability is deemed paramount Certain types of contracts which do not foster industrialstability such as contracts where the identity of therepresentative is in doubt or those that are prematurelyrenewed
ONE YEAR BARRULE
Requirements in order to invoke the c ontractbar rule
Agreement is in writing, signed by allcontracting partiesIt must contain the terms and conditions ofemploymentCovered employees in an appropriatebargaining unitIt is for a reasonable period or durationIt must be ratifiedIt must be registered with the BureauThe violation of the contract bar rule or theexistence of a duly-registered collective
bargaining agreement must be specificallyimpleaded as a defense
Exceptions to a contract bar rule
CBA is not registeredCBA deregsteredCBA was hastily concluded way afreedom periodCBA is incomplete in itselfCBA does not foster indusbecause of schismCBA was concluded in violationenjoining the parties from enteCBA until the issue of represresolved
Effect of an invalid and unregisteredthen there is no bar and therefore a ceelection may be held
DEADLOCK BARRULE
It arises when there is animpasse which presupposesreasonable effort at goodbargaining which, despitenoble intentions, did notconclude in agreementbetween parties
The performance of a mutualobligation to meet and convene
promptly and expeditiously and ingood faith, for the purpose of
negotiating an agreement withrespect to —
Wages
Hours of work
All other terms andconditions of employme
including
Proposals for adjusting anygrievances or questions
arising under suchagreement
Executing a contractincorporating such
agreements if requested byeither party
When there is a collective bargainingagreement, the DUTY TO BARGAINCOLLECTIVELY shall mean thatneither party shall terminate or modifysuch agreement during its lifetime.
However, either party can serve awritten notice to terminate or modify theagreement at least 60 days prior to itsexpiration period.
Does the duty to bargain collectivelycarry with it the duty to agree to aproposal or to make a concession?
No. The duty to bargain collectivelydoes not compel any party to (1) agreeto a proposal or (2) make a concession
It is the mechanism for the adjustment of controversies ordisputes arising from the interpretation or implementation of theCBA and the interpretation or enforcement of personnelpolicies.
Grievance arises when: a dispute or controversy arises overthe implementation of a CBA or from the implementation orenforcement of company personnel policies, and either the
union or the employer invokes the grievance machineryprovision for the adjustment or resolution of such dispute orcontroversy.
For volu ntary arbi t ra t ion, refer to theCompara t ive Char t on Ju r i sd ic t ions
before the NCMBRegional Office wherethe employer is located
Purpose of notice of strike is forconciliation and mediation, and to
forge a voluntary/ amicablesettlement —conducted by NCMB
Concilator-Mediators
If the ground is UNFAIRLABOR PRACTICE, 15
DAYS before the intendeddate of strike/ lockout
If the ground isBARGAINING
DEADLOCK, 30 daysbefore the intended date
of strike/lockout
Present a copy to theconcerned parties of the
notice of strike
The union will first notifythe NCMB re: taking of
STRIKE VOTE where onlyunion members will act.
SUBMISSION OFSTRIKE VOTE REPORT
to the NCMB, (secretballot in the company)
WAIT FOR 7 DAYS togive NCMB last stage
effort to settle
***But in case of U NION BUSTING where theexistence of the union is threatened, the 15-day
cooling off period before the intended strike doesnot apply and the union may immediately take
action after the strike vote is conducted, and theresults thereof will be submitted to DOLE.
Note that:
If the strike is considered illegal, nobody willdismiss the union members, not even themanagement BUT for their failure to follow thelegal strike procedure, they are deemed tohave lost their employment status. THIS
APPLIES ONLY TO UNION OFFICERS
BUT—if there were illegal activities committed
during the strike, the members who committedsuch act will also be apprehended
Also, they may file separate criminal acts(BLTB Case: If there are criminal cases filedagainst the union members, they may go backto work but note on the theory of substantialitywhere the employer must identify the
*** Contents of notice ofstrike (1) names (2)
addresses of employer (3)union involved (4) nature
of industry
***Purpose of strike vote —to ensure that the decision
to stage a strike comesfrom the majority
members of the union.
and in accordance with the proceduraland substantive requirements by law
You should not study the law merely for the sake of doing well in recitations, passingyour law school exams, surviving law school or hurdling the bar to become a lawyer.
You have to study the law because you are in love with the study of law.
Create a theater of different human activities in your mind and see the law in action.Visualize how the law interacts with the people and the society; and how it offerssolutions to problems, how it facilitates transactions, how it nurtures relationships, howit preserves order, how it affects human thought. When you can do this, the law willcome to life, and you will see it everywhere, and you will fall in love with the study oflaw. And when you fall in love with the study of law, you will never forget it again. The
knowledge that it gives you, you can no longer unlearn it. It will be yours forever.
Speak, for those who cannot speak for themselves. Proverbs 31:8
Cecille Carmela T. de los ReyesPhilippine Christian University- College of Law